Resolution No. 8148r
1 RESOLUTION NO. 8148
2
3 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND RATIFYING THE EXECUTION OF AN
4 AGREEMENT FOR PROFESSIONAL CONSULTING SERVICES BY
AND BETWEEN THE CITY OF VERNON AND WRMS
5 ENGINEERING, INC., A WHOLLY OWNED SUBSIDIARY OF
6 CALPINE CORPORATION, FOR THE MALBURG GENERATING
STATION PROJECT
7
8 WHEREAS, the City of Vernon ("City") is proceeding at this
9 time to develop a 134 MW Combined Cycle Power Plant officially named
10 the Malburg Generating Station (the "Malburg Project") for the purpose
11 of installing additional generating capacity that will yield an
12 efficient, cost—effective, and reliable source of electric generation
13 to the City; and
14 WHEREAS, the City's Utilities Department has determined that
15 certain engineering consulting services and other related consulting
16 services are needed for the Malburg Project; and
17 WHEREAS, City staff have proposed engaging the services of
18 WRMS Engineering, Inc., a wholly owned subsidiary of Calpine
19 Corporation, ("Calpine") to perform project management, engineering
20 review, compliance support and construction oversight services for the
21 Malburg Project; and
22 WHEREAS, in order to meet the urgent need to proceed with the
23 Malburg Project and ensure that the Malburg Project is not delayed, the
24 City Administrator/City Clerk executed an Agreement for Professional
25 Consulting Services with Calpine on January 22, 2003, subject to
26 ratification by the City Council; and
27 WHEREAS, by letter dated January 30, 2003, Bruce V.
28 Malkenhorst, City Administrator/City Clerk, recommended that a
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professional consulting agreement with Calpine be ratified; and
WHEREAS, the City Council of the City of Vernon has
determined that, pursuant to the provisions of subsection (a) of
Section 2.27 of the Vernon City Code, it is in the public interest and
necessity to enter into an agreement with Calpine to proceed with the
engineering portion for the Malburg Project to enhance services
provided to the Vernon community.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF VERNON AS FOLLOWS:
SECTION 1: The City Council of the City of Vernon hereby
finds and determines that the recitals contained hereinabove are true
and correct.
SECTION 2: The City Council of the City of Vernon hereby
approves and ratifies the execution of the Agreement for Professional
Consulting Services with WRMS Engineering, Inc., a wholly owned
subsidiary of Calpine Corporation, a copy of which is attached hereto
as Exhibit "A" and made apart hereof.
SECTION 3: The City Clerk of the City of Vernon shall
certify to the passage of this resolution, and thereupon and
thereafter the same shall be in full force and effect.
APPROVED AND ADOPTED this 5tn day of February, 2003.
LEONIS C. MALB G, Ma or
ATTEST:
BRUCE V. MALKENHORST, City Cler
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STATE OF CALIFORNIA )
) ss ,
COUNTY OF LOS ANGELES )
I, BRUCE V. MALKENHORST, City Clerk of the City of Vernon, do
hereby certify that the foregoing Resolution, being Resolution No.
8148, was duly adopted by the City Council of the City of Vernon at a
regular meeting of the City Council duly held on Wednesday, February 5,
2003, and thereafter was duly signed by the Mayor of the City of
Vernon.
(SEAL)
BRUCE V. MALKENHORST, City Clerk
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EXHIBIT
AGREEMENT FOR PROFESSIONAL CONSULTING SERVICES
THIS AGREEMENT (the "Agreement") is made,.entered'into and
executed in duplicate originals, either copy of which may be
considered and used as the original hereof for all purposes, as of
this 22Id day of January, 2003, in the City of Vernon, County of Los
Angeles, California
BY AND BETWEEN
AND
THE CITY OF VERNON
(hereinafter referred to as
„City,..)
4305 Santa Fe Avenue
Vernon, CA 90058-0805
WRMS ENGINEERING, INC.,
(hereinafter referred to as
"Consultant"), a wholly owned
subsidiary of Calpine
Corporation
1556 Parkside Drive
Walnut Creek, CA 94596
RECITALS
WHEREAS, City is developing a Combined Cycle Power Plant
(the "Project") for purposes of installing additional generating
capacity that is capable of yielding cost effective, efficient and
reliable electricity to meet its goals, while meeting Federal, State
and local environmental and siting requirements; and
WHEREAS, City requires certain engineering consulting and
other related consulting services for the Project; and
WHEREAS, Consultant has proposed to the City to perform the
consulting services outlined in the "Scope of Work" a copy of which is
attached hereto as Exhibit "A" and, incorporated herein by this
reference (the "Scope Document"); and
WHEREAS, Consultant represents that it is qualified to
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perform .such services and is willing to render such professional
services; and
WHEREAS, based upon Consultant's qualifications and
experience, the City desires to engage the services of Consultant to
perform the services identified in the Scope Document.
NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS SET
FORTH HEREIN:
1. SCOPE OF SERVICES.
Consultant shall perform the services outlined in the Scope
Document. In the event of a conflict between the Scope Document and
this Agreement, the terms of this Agreement shall prevail. The
totality of all services provided by Consultant under or in connection
with this Agreement and the Project is sometimes herein referred to as
the "Services".
2. PROGRESS REPORTS.
Consultant shall provide written progress reports, as
requested by City, in order to advise City, as quickly as reasonably
possible, of significant milestones or conclusions within the Scope of
Services that will assist City in making progress toward the
completion of the Project. Consultant shall also meet with City
staff, upon City's request, or as needed, in order to provide reports
or information concerning the Services being performed by Consultant
under this Agreement.
3• TIME OF PERFORMANCE.
Consultant's Services shall commence upon signing of this
Agreement and shall continue until the Services are completed, unless
this Agreement is terminated. Any Services performed prior to actual
date of execution hereof shall for all purposes be deemed to have been
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performed pursuant to this Agreement, subject to the terms and
conditions hereof.
4. COMPENSATION.
A. Consulting Rates and Expenses. City will
compensate Consultant for the Services pursuant to Consultant's rate
and expense schedule which is attached hereto as Exhibit "B" and
incorporated herein by reference (the "Rate/Expense Schedule").
Consultant shall bill the City on a time and materials basis until the
Services are completed. However, the total amount to be paid to
Consultant under this Agreement for completion of the Services
identified in the Scope Document shall not exceed a total of Two
Million Four Hundred Thousand Dollars and No Cents ($2,400,000.00)
subject.to Sections 4(B) and 6 hereof.
B. Budgets and Additional Char es. The parties
acknowledge that (a) all Services are to be performed on a time and
materials basis based on the Services proposed in the Scope Document
and the corresponding costs and expenses associated with such Services
set forth in the Rate/Expense Schedule, (b) the Scope Document and
Rate/Expense Schedule are based on estimates of the number of hours
for Consultant's personnel required to complete all required
Consultant Services associated with the Project, and the estimated
third -party expenses associated therewith, and (c) if at any time
during the progress of the Project, Consultant becomes aware that such
estimates are or become incorrect in any manner that is reasonably
likely to require any increase in the estimated budgets for time or
expenses set forth in the Rate/Expense Schedule (whether as a result
of force majeure, Project delay or other problem, or otherwise),
Consultant will provide City with notice thereof, it being agreed that
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Consultant shall have no right (and no obligation) to perform any
Services in excess of the budgeted estimates therefor set forth in the
Rate/Expense Schedule unless and until the parties have each executed
a change order in accordance with Section 6.
S. MFTHOn CW PnvmphiT
Consultant shall submit within thirty (30) days after the
last day of each month in which Services have been performed or costs
incurred hereunder an invoice to City. Invoices shall contain an
itemization of Services rendered, directly related job expenses and
subcontract charges incurred by Consultant and for.which compensation
is due. Consultant shall be responsible for paying any subcontractors
used in the performance of this Agreement.
Payment of each invoice shall be made after acceptance and
approval by City, but in any event no later than thirty (30) days
following receipt (excluding only such amounts as are subject to a
good faith dispute by City). City's approval of invoices shall not be
unreasonably withheld.
6. CHANGES AND EXTRA SERVICES.
City reserves the right to request changes in the Services
to be performed by Consultant. All such changes shall be incorporated
in written change orders executed by City and Consultant which shall
specify the changes ordered and the adjustment of compensation and
completion time required thereof.
Any services added to the scope of this Agreement by a
change order shall be subject to all of the applicable terms and
conditions of this Agreement. No change or change order shall be
effective until mutually agreed and executed by both parties, and no
claim for additional compensation or, subject to Section 13 (entitled
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"Force Majeure"), extension of time, shall be recognized unless
contained in a duly executed change order.
7. PRODUCTS OF CONSULTING.
All documents, data, studies, surveys, drawings, maps,
models, photographs and reports prepared by Consultant under this
Agreement shall be considered the property of City. Such documents
and materials shall be delivered to City by Consultant as they are
generated; however, Consultant may take and retain copies of such
documents and materials as desired. Consultant shall have no
liability to City for (and City shall indemnify and hold Consultant
harmless from) any liabilities or damages arising out of City's use of
any such materials for any purpose other than the Project as
contemplated hereby.
8. DISCLOSURE OF LITIGATION.
Consultant represents that it has disclosed to City all
significant litigation that is pending against Consultant and which
may impact Consultant's financial ability to perform this Agreement.
Consultant also represents that Consultant is not the subject of any
criminal investigation or proceeding and that neither Consultant nor,
to the actual knowledge of Consultant's senior management, any
employee or representative of Consultant, have been convicted of a
felony. The City has relied upon such representations and considers
such representations to be a material aspect of this Agreement.
Consultant hereby acknowledges that City would be significantly harmed
if such representations were not correct.
9. TERMINATION. This Agreement may be terminated by
City without cause on ten (10) days written notice to Consultant. In
the -event of such termination by City, Consultant shall be entitled to
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only the compensation earned by it prior to the date of the
termination notice, plus compensation for (i) necessary work performed
during the ten-day notice period and authorized in the termination
notice and (ii) all costs reasonably and necessarily incurred by
Consultant to the date of the termination and in effectuating the
termination.
10. NOTICES. Notices to the parties, unless otherwise
requested in writing, shall be sent to:
City: THE CITY OF VERNON
ATTN: BRUCE V. MALKENHORST
CITY ADMINISTRATOR
4305 SANTA FE AVENUE
VERNON, CA 90058-0805
Consultant: WRMS ENGINEERING, INC.
ATTN: VICE PRESIDENT, FINANCE & ADMINISTRATION
1556 PARKSIDE DRIVE
WALNUT CREEK, CA 94596
11. CONFIDENTIAL INFORMATION.
A. Access to Confidential Information. City may
provide Consultant with, or allow Consultant access to, certain
information not available to the public concerning the City, or
businesses located in the City. The information may include company
information, taxes, sales, value of assets, or other such information.
All such information that is marked or otherwise clearly noted as
"Confidential" shall be known as "Confidential Information."
B. No Disclosure. Except as expressly permitted,
Consultant shall not disclose, permit the disclosure of, release,
disseminate, or transfer, whether orally or by any other means, any
part of such Confidential Information to any other person or entity,
whether corporate, governmental, or individual, without the express
prior written consent of an authorized representative of the City.
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Consultant shall return any written Confidential Information and all
copies made of such items to the City upon the City's written request,
but in any event not later than the date that Consultant has performed
all services to be performed pursuant to this Agreement. Consultant
hereby agrees that such Confidential Information and any documents
provided may be used by Consultant only as authorized by the City.
Consultant shall take reasonable measures to avoid any disclosure of
any such Confidential Information to any unauthorized person.
C. Court Ordered Disclosure. Consultant shall
immediately notify the City of any court order or subpoena requiring
disclosure of Confidential Information, and shall cooperate with legal
counsel in the appeal or challenge of any such order or subpoena.
Recipient may only disclose Confidential Information required to be
disclosed pursuant to court order or subpoena after legal counsel has
exhausted any lawful and timely appeal or challenge.
D. Remedies. In addition to any other remedies that
it may have at law or in equity, the City shall be entitled to a
temporary and permanent injunction by a court of competent
jurisdiction against any breach or threatened breach of the
Confidential Information provisions of this Agreement. Consultant
acknowledges that in case of such breach or threatened breach of said
provisions, the City would have no adequate remedy at law.
12. STANDARD OF CARE AND LIABILITIES.
A. Standard of Care and Remedies. Consultant
warrants that it shall perform the Services using that degree of skill
and judgment exercised by recognized professional firms performing
services similar to the Services, and in accordance with all
applicable laws, regulations, and codes.
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B. No Other Warranties.
Except as set forth in
preceding Section 12(A), Consultant provides no warranties or
guarantees of any type whatsoever with respect to the Services, the
Project or this Agreement. Without limiting the foregoing, Consultant
does not guarantee or warrant (and shall have no liability for) the
work, goods or services of any other contractor or other third party
providing services to or for the benefit of the City in connection
with the Project.
C. Liabilities. Notwithstanding any other
provision of this Agreement, Consultant's and its subcontractors' (if
any) aggregate cumulative liability to City, including its divisions
and related entities, arising out of or relating to this Agreement
from any and all causes, shall in no event exceed Two Million
Dollars($2,000,000.00).
D. No Consequential Damages. In no event shall
either party or its subcontractors (if any) be liable for special,
indirect, punitive, exemplary or consequential damages of any nature,
and each party hereby releases the other party and its subcontractors
therefrom, including without limitation loss of revenues or profits or
costs of capital.
E. Application. As a material aspect of this
Agreement, to the maximum extent permitted by law, the limitations,
releases, waivers, exclusive remedies provisions and other provisions
of this Section 12 above, shall apply in all cases, irrespective of
whether any claim arising under or relating to this Agreement arises
out of or relates to any breach of contract, breach of warranty, tort
liability (including negligence), strict liability, indemnity claim or
other claim or liability of either party.
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13. FORCE MAJEURE. Each party shall be excused from
performance and shall not be considered to be in default with respect
to any -obligation hereunder to the extent that its failure of
performance is due to an event of Force Majeure. The term "Force
Majeure" shall mean any act or event that delays or prevents a party
from timely performing obligations under this Agreement (other than
the payment of monies due) or complying with the conditions required
under this Agreement if such act or event is beyond the reasonable
control of the party affected, including but not limited to acts of
God or the elements; explosion; fire; epidemic; landslide; mudslide;
sabotage or terrorism; lightning; earthquake; flood or similar
cataclysmic event; an act of public enemy; war; blockade; civil
insurrection; riot; civil disturbance; unavailability of utilities;
strike or other labor difficulties; or restraint or restriction
imposed by law or regulation or other acts of governmental
authorities.
14. COMPLETION NOTICES. Upon completion of the Services,
Consultant shall, and upon completion of any independently
identifiable portion of the Services Consultant may, notify City in
writing of the date of said completion and request confirmation of
such completion by City. Upon receipt of any such notice, City shall
promptly confirm to Consultant in writing that the Services referred
to in said notice were completed on the date indicated in said notice
or provide Consultant with a written listing of the Services not
completed. Any Services included in Consultant's notice to City and
not listed by City as incomplete in a listing delivered to Consultant
within thirty (30) days of receipt of said notice shall be deemed
complete and accepted. With respect to Services listed by City as
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incomplete, Consultant shall complete such Services and the above
acceptance procedure shall be repeated.
15. GENERAL PROVISIONS.
A. Independent Contractor. At all times during the
term of this Agreement, Consultant shall be independent contractor
and shall not be an employee of City. City shall have the right to
control Consultant only insofar as the results of Consultant's
services rendered pursuant to this Agreement; however, City shall not
have the right to control the means by which Consultant accomplishes
services rendered pursuant to the Agreement except to the extent that
such services involve the use of City property or Confidential
Information
B. Consultant Not Agent. Except as City may
specify in writing, Consultant shall have no authority, express or
implied, to act on behalf of City in any capacity whatsoever as an
agent. Consultant shall have no authority, expressed or implied,
pursuant to this Agreement to bind City to any obligation whatsoever.
C. Indemnification. Each party (an "Indemnitor")
shall, subject to Section 12, indemnify, defend, protect and hold
harmless the other party and its officers, agents and employees
(collectively, "Indemnitees"), from and against any and all claims,
demands, losses, damages, liabilities, fines, charges, penalties,
orders, judgments and all costs and expenses incurred in connection
therewith, including reasonable attorney's fees and costs of defense,
arising out of claims of bodily injury (including death) or physical
property damage, in any such case to the extent caused by Indemnitor's
(or its subcontractors', if any) negligence or willful misconduct; but
in any event excluding any of the same arising from or caused by the--
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negligence or willful misconduct of an Indemnitee.
D. Insurance. Prior to commencing work hereunder,
Consultant shall provide City with proof of insurance providing and
maintaining the coverages and endorsements set forth in the Insurance
Schedule attached hereto as Exhibit "C" and made a part hereof by
reference. Said proof of insurance shall also provide that said
policy or policies shall not be canceled or materially reduced in
coverage without giving at least thirty (30) days prior written notice
to the City. Consultant shall not permit a subcontractor or vendor to
perform work on City premises unless and until a certificate of
insurance is obtained showing that such subcontractor or vendor has.
worker's compensation coverage.
If City allows Consultant to employ subcontractors
pursuant to Section F below, as part of the services rendered under
this Agreement, Consultant's protective coverage is required.
Consultant may include all subcontractors as insureds under its own
policy or shall furnish separate insurance for each subcontractor,
meeting the requirements set forth herein.
E. Attorney's Fees. In the event that it becomes
necessary for either party to this Agreement to enforce any of the
provisions of this Agreement, the parties agree that a court of
competent jurisdiction may determine and fix reasonable attorney's
fees to be paid to the successful litigant.
F. Assignment and Subcontracting Prohibited.
Consultant may not assign or subcontract any right or obligation
pursuant to this Agreement except with the express written consent of
City. Any other attempted or purported assignment of any right or
obligation pursuant to this Agreement shall be void and of no effect-
G. Recitals. All recitals are incorporated by
reference.
H. Waiver. Any waiver at any time by either party
of its rights with respect to a default under this"Agreement, or with
respect to any other matters arising in connection with this
Agreement, shall not be deemed a waiver with respect to subsequent
default or other matter.
I. Governing Law. The validity, interpretation and
performance of this Agreement shall be controlled and construed under
the laws of the State of California.
J. Amendments. This Agreement may be modified or
amended only by a written document executed by both Consultant and the
City and approved as to form by the City Attorney.
K. Entire Agreement. This Agreement is the entire
agreement of the parties. Each party represents that in entering into
this Agreement, it has not relied on any previous representations or
understandings of any kind or nature.
L. Benefit of Agreement. This Agreement shall bind
and benefit the parties hereto and their heirs, successors, and
permitted assigns.
M. Consultant Exclusively Liable. Notwithstanding
any other provision of this Agreement (including the Exhibits hereto),
the obligations and liabilities of Consultant arising under or
relating to this Agreement are obligations and liabilities solely of
Consultant, and shall not constitute obligations or liabilities of any
direct or indirect shareholder or other investor of Consultant, or of
any of their respective directors, officers, agents or employees,
notwithstanding any reference herein or in any such Exhibit to any
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such third party.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed by and through their authorized officers on the date,
month and year first written above.
ATTEST:
BRUCE V. MALKENHORST, City Clerk
APPROVED AS TO FORM:
EDUARDO OLIVO, City Attorney
Attachments:
Exhibit A:
Exhibit B:
Exhibit C
CITY OF VERNON
LEONIS C. MALBURG, Mayor
WRMS ENGINEERING, INC.
("Consultant"), a wholly owned
subsidiary of Calpine
Cor or tion
Y= `i(�
Title: V jt t--1 MAAJC4Z:-; &hr.1 I Ati s IrZOfi ud
By:
Title:
Scope Document
Consultant's Rate/Expense Schedule
Insurance Schedule (Consultant)
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MALBURG GENERATING STATION PROJECT
VERNON, CALIFORNIA
EXHIBIT A -
SCOPE OF WORK
1. BACKGROUND
WRMS Engineering, Inc. (Consultant) shall provide project management, engineering review, compliance
support and construction oversight services as expressly described herein for the proposed new 134 megawatt
combined cycle combustion turbine -based power plant to be located at a site within the City limits (the "Malburg
Generating Station Project" or the "Project"). The Project is more fully described in the Specification for
Detailed Engineering, Procurement, Construction and Startup of the Project (the "Specification") dated July 25,
2002.
The Project is currently in the advanced stage of environmental permitting. The CEC is in the process of
reviewing the AFC for the Project (01-AFC-25) and has issued a Staff Assessment ("SA").
The City has procured two new Alstom model GTX-100 combustion turbine generator units (the "CTGs"),
associated heat recovery steam generators (the "HRSGs"), and a steam turbine generator unit (the "STG")
provided by Alstom Power, Inc ("Alstom"). The City has not yet taken delivery of these units. Alstom has
provided guarantees to the City for power output and levels of emissions from this equipment.
The City has also procured the step-up transformers, generator breakers, condenser, cooling tower, and gas
compressors. The City has sent out an RFP and has received responses for the construction of the necessary City
sewer system expansion. The City is in process of sending out an RFP for the construction of the necessary City
gas distribution system expansion. The necessary reclaimed water supply lines are currently under design.
2. SCOPE OF WORK FOR THE CONSULTANT
2.1 GENERAL RESPONSIBILITY
The Consultant will plan, schedule and support all business incidental to the design, construction, startup and
compliance of the Project, and in particular, shall assist to administer the E & PC Contracts, in support of
achieving commercial operation of the Project on the scheduled COD at a cost equal to or less than the approved
Project budget. The Consultant will act as the City's representative for the E & PC Contracts, California Energy
Commission and other Project related agreements or conditions of certification. This Scope of Work (and the
related Rate/Expense Schedule) is based on an overall 16-month schedule consisting of 4 months of design phase,
which overlaps the construction phase by a month, 10 months of construction phase, and 4 months of startup and
commissioning phase.
As of 1/23/2003 Pagel of 5
2.2 SPECIFIC RESPONSIBILITIES
The specific responsibilities of the Consultant will include the following:
2.2.1 Design and Procurement Phase
2.2.1.1 Reviewfor Compliance with the Specifications
Review Project design criteria, drawings, execution plan, procurement specifications and other documents from
the E & PC Contractors with respect to compliance with the Specifications. Review the EPC Contractor's
detailed engineering design that may include electrical, mechanical, instrumentation/control, civil, and structural
designs. Validate the technical adequacy of the EPC Contractor's design in critical systems and performance
areas. Review designs for operability, maintainability, and reliability. Verify the preferences of the City are
reflected in the design, along with good engineering practice and accepted utility practices. Recommend design
acceptance on behalf of the City.
2.2.1.2 Monitor Schedule Development and Progress
Review the overall Project Schedule prepared by the E & PC Contractors to verify the Project will achieve the
scheduled COD. Monitor and report on the E & PC Contractors' interface with the power island supplier,
interface with electric, sewer, and natural gas utilities, compliance with CAISO AGC and metering requirements,
the compliance conditions of the CEC AFC, compliance with the work breakdown structure and critical path
activities, and the level of float and contingency assumed. Provide an integrated Project schedule, which will
include input from the E & PC Contractors. Review and recommend approval of monthly progress reports from
the E & PC Contractors. Upon obtaining knowledge of any project delays the Consultant will notify the City
thereof.
2.2.1.3 Approve Major Suppliers
Review major suppliers selected by the E & PC Contractors for compliance with the E & PC Contracts. Review
manufacturing drawings of the suppliers, materials, scheduled delivery for compliance with the E & PC Contracts
and the Specifications and the overall Project Schedule.
2.2.1.4 Attend Factory Tests and Inspections
Factory acceptance testing and inspections are not in part this scope..
2.2.2 Construction Phase
2.2.2.1 Construction Oversight
Maintain a physical presence at the job site to monitor and inspect construction of the Project by the E & PC
Contractors, including job walks, quality reviews, safety reviews and general site condition. Conduct weekly and
monthly construction status meetings. Facilitate coordination between plant and interconnection construction.
As of 1/23/2003 Page 2 of 5
2.2.2.2 Site Coordination
Coordinate and recommend resolutions on scheduling conflicts with multiple contractors on the site, including gas
utility contractor, sewer utility contractor and E & PC contractors.
2.2.2.3 Permit Compliance
The CEC is in the process of reviewing the AFC for the Project (01-AFC-25) and has issued a preliminary Staff
Assessment ("SA"). In the SA are proposed reporting and/or verification requirements that the Consultant will
fulfill on behalf of the City and submit to the CEC compliance project manager ("CPM").
Consultant shall fulfill the "Resident Engineer's" role as defined by the Project's Conditions of Certification.
The South Coast Air Quality Management District ("SCAQMD") has issued a Determination of Compliance
(SCAQMD 2002b). In it are rules and regulations for compliance. The Consultant will fulfill the reporting
requirements on behalf of the City.
The Federal EPA has not issued a Final Prevention of Significant Deterioration ("PSD") permit but is expected to
shortly. The Consultant will fulfill the reporting requirements of the PSD permit on behalf of the City.
In addition, the Consultant will review the permit conditions of any other relevant local, state or federal agencies
with regard to E & PC Contractors' work or other City work. Prepare and submit for City all reports required to
satisfy compliance with these permits (except to the extent that the E & PC Contractors is required to prepare and
submit such reports under the E & PC Contracts, in which case the Consultant's duty will be limited to
supervision of the E & PC Contracts). In City's name and behalf and in consultation with City, obtain, maintain
and, as necessary or desirable, revise required permits (other than permits that the E & PC Contractors is required
to obtain under the E & PC Contracts, with respect to which Consultant's duty is limited to supervising the E &
PC Contractors' performance under the E & PC Contracts).
2.2.2.4 Mitigate Change Order Impacts
Review change order requests from the E & PC Contractors, assess impact on cost and schedule. Negotiate and
review change orders to the E & PC Contracts and other contracts for construction materials or services as
required to accommodate unforeseen circumstances or to resolve E & PC Contractors or other contractor claims.
Recommend to the City approval or rejection of change orders.
2.2.2.5 Monitor Progress for Schedule Compliance and LD Impacts
Monitor schedule as reported by the E & PC Contractors, observe productivity of site management and labor,
recommend changes and improvements to E & PC Contractors and City, estimate probability of delay and cost
impacts to City and other schedule related tasks.
2.2.2.6 Contractor Payment
Review and advise with respect to Project Milestone Completions as itemized in the E & PC Contracts.
Document and photograph progress at milestone completion dates. Review and advise with respect to
applications for payment submitted by the E & PC Contractors under the E & PC Contracts, Review and advise
with respect to invoices and other applications for payment submitted by any other contractors, assemble the
documents required to make the monthly construction draw request pursuant to the Bond Indenture, and certify
the construction draw request as City's agent.
2.2.2.7 Reporting
As of 1/23/2003 Page 3 of 5
Review subcontractor lien release or waivers, warranty issues list as submitted by E & PC Contractors or as
discovered by the Consultant. Verify that the E & PC Contractors has paid subcontractors and obtained the
necessary lien releases prior to recommending approval of Project milestone payments. Review assignment of
major Project agreements and permits from E & PC Contractors to City. Review liquidated damages calculations
submitted by E & PC Contractors.
2.2.5 Other EPC-Related Items
Provide construction or engineering consulting as the City may request. Respond, in a timely manner, to written
requests for Project information from the City. Obtain and maintain workers' compensation, unemployment and
other employee -related insurance covering Consultant's employees as is required under California law. Obtain
and maintain insurance policies and coverage for the Consultant, as defined in Exhibit C. Advise the City with
respect to the project labor agreement. Review and advise the City with respect to, the E & PC Contractor's duty
to develop and maintain safety procedures and an effective safety program, including, without limitation, fire and
explosion safety measures and individual protective measures. Review and advise the City with respect to, the E
& PC Contractor's obligation to provide site security services for the Project during construction and startup.
Review and provide assistance on any warranty, breach or other claims arising in connection with the goods or
services provided to or for the Project under the E & PC Contracts or otherwise, subject to City's review and
approval.
2.2.6 Pre -O&M Phase
2.2.6.1 Prepare the RFP
Prepare the specifications and requirement documents for a RFP for the bidding, evaluation and selection of an
O&M Contractor. Include in the specifications that the results of the performance testing will be the basis for the
O&M Contractor's plant output/performance goals.
2.2.6.2 Support Negotiation of O&M Agreement
Review sections of proposed O&M Contract including scope of work, scheduling, and annual performance
measurement and testing requirements and performance bonus/penalty determination.
2.2.6.3 Oc&M Staffing and Training
Coordinate with respect to the O&M Contractor's obligation to hire and train the Project operating and
maintenance work force and perform the duties defined for the City's operating forces during checkout, startup
and performance testing of the Project. Coordinate with the O&M Contractor to witness -test the performance
testing by others. Familiarize the O&M Contractor with the Project activities (including the status of the
construction schedule and the status of the punch list), and coordinate with City concerning the transition to the
O&M Contract.
2.2. 6. 4 First Year Annual O&M Budget Review
Review the annual operating budget for the first operating year of the Project as proposed by the O&M Contractor
during the later stages of construction of the Project, including forecast cost of labor, consumables, spare parts,
and contract services. Revise, as necessary, and recommend for City approval.
As of 1/23/2003 Page 5 of 5
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4
AGREEMENT FOR PROFESSIONAL CONSULTING SERVICES
THIS AGREEMENT (the "Agreement") is made, entered into and
executed in duplicate originals, either copy of which may be
considered and used as the original hereof for all purposes, as of
this 22nd day of January, 2003, in the City of Vernon, County of Los
Angeles, California `
BY AND BETWEEN
AND
THE CITY OF VERNON
(hereinafter referred to as
"City")
4305 Santa Fe Avenue
Vernon, CA 90058-0805
WRMS ENGINEERING, INC.,
(hereinafter referred to as
"Consultant"), a wholly owned
subsidiary of Calpine
Corporation
1556 Parkside Drive
Walnut Creek, CA 94596
RECITALS
WHEREAS, City is developing a Combined Cycle Power Plant
(the "Project") for purposes of installing additional generating
capacity that is capable of 'yielding cost effective, efficient and
reliable electricity to meet its goals, while meeting Federal, State
and local environmental and siting requirements; and
WHEREAS, City requires certain engineering consulting and
other related consulting services for the Project; and
WHEREAS, Consultant has proposed to the City to perform the
consulting services outlined in the "Scope of Work" a copy of which is
attached hereto as Exhibit "A" and incorporated herein by this
reference (the "Scope Document"); and
WHEREAS, Consultant represents that it is qualified to
- 1 -
perform such services and is willing to render such professional
services; and
WHEREAS, based upon Consultant's qualifications and
experience, the City desires to engage the services of Consultant to
perform the services identified in the Scope Document.
NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS SET
FORTH HEREIN:
1. SCOPE OF SERVICES.
Consultant shall perform the services outlined in the Scope
Document. In the event of a conflict between the Scope Document and
this Agreement, the terms of this Agreement shall prevail. The
totality of all services provided by Consultant under or in connection
with this Agreement and the Project is sometimes herein referred to as
the "Services".
2. PROGRESS REPORTS.
Consultant shall provide written progress reports, as
requested by City, in order to advise City, as quickly as reasonably
possible, of significant milestones or conclusions within the Scope of
Services that will assist City in making progress toward the
completion of the Project. Consultant shall also meet with City
staff, upon City's request, or as needed, in order to provide reports
or information concerning the Services being performed by Consultant
under this Agreement.
3. TIME OF PERFORMANCE.
Consultant's Services shall commence upon signing of this
Agreement and shall continue until the Services are completed, unless
this Agreement is terminated. Any Services performed prior to actual
date of execution hereof shall for all purposes be deemed to have been
- 2 -
performed pursuant to this Agreement, subject to the terms and
conditions hereof.
4. COMPENSATION.
A. Consulting Rates and Expenses. City will
compensate Consultant for the Services pursuant to Consultant's rate
and expense schedule which is attached hereto as Exhibit "B" and
incorporated herein by reference (the "Rate/Expense Schedule").
Consultant shall bill the City on a time and materials basis until the
Services are completed. However, the total amount to be paid to
Consultant under this Agreement for completion of the Services
identified in the Scope Document shall not exceed a total of Two
Million Four Hundred Thousand Dollars and No Cents ($2,400,000.00)
subject to Sections 4(B) and 6 hereof.
B. Budgets and Additional Charges. The parties
acknowledge that (a) all Services are to be performed on a time and
materials basis based on the Services proposed in the Scope Document
and the corresponding costs and expenses associated with such Services
set forth in the Rate/Expense Schedule, (b) the Scope Document and
Rate/Expense Schedule are based on estimates of the number of hours
for Consultant's personnel required to complete all required
Consultant Services associated with the Project, and the estimated
third -party expenses associated therewith, and (c) if at any time
during the progress of the Project, Consultant becomes aware that such
estimates are or become incorrect in any manner that is reasonably
likely to require any increase in the estimated budgets for time or
expenses set forth in the Rate/Expense Schedule (whether as a result
of force majeure, Project delay or other problem, or otherwise),
Consultant will provide City with notice thereof, it being agreed that
- 3 -
Consultant shall have no right (and no obligation) to perform any
Services in excess of the budgeted estimates therefor set forth in the
Rate/Expense Schedule unless and until the parties have each executed
a change order in accordance with Section 6.
5. METHOD OF PAYMENT.
Consultant shall submit within thirty (30) days after the
last day of each month in which Services have been performed or costs
incurred hereunder an invoice to City. Invoices shall contain an
itemization of Services rendered, directly related job expenses and
subcontract charges incurred by Consultant and for which compensation
is due. Consultant shall be responsible for paying any subcontractors
used in the performance of this Agreement.
Payment of each invoice shall be made after acceptance and
approval by City, but in any event no later than thirty (30) days
following receipt (excluding only such amounts as are subject to a
good faith dispute by City). City's approval of invoices shall not be
unreasonably withheld.
6. CHANGES AND EXTRA SERVICES.
City reserves the right to request changes in the Services
to be performed by Consultant. All such changes shall be incorporated
in written change orders executed by City and Consultant which shall
specify the changes ordered and the adjustment of compensation and
completion time required thereof.
Any services added to the scope of this Agreement by a
change order shall be subject to all of the applicable terms and
conditions of this Agreement. No change or change order shall be
effective until mutually agreed and executed by both parties, and no
claim for additional compensation or, subject to Section 13 (entitled
- 4 -
"Force Majeure"), extension of time, shall be recognized unless
contained in a duly executed change order.
7. PRODUCTS OF CONSULTING.
All documents, data, studies, surveys, drawings, maps,
models, photographs and reports prepared by Consultant under this
Agreement shall be considered the property of City. Such documents
and materials shall be delivered to City by Consultant as they are
generated; however, Consultant may take and retain copies of such
documents and materials as desired. Consultant shall have no
liability to City for (and City shall indemnify and hold Consultant
harmless from) any liabilities or damages arising out of City's use of
any such materials for any purpose other than the Project as
contemplated hereby.
8. DISCLOSURE OF LITIGATION.
Consultant represents that it has disclosed to City all
significant litigation that is pending against Consultant and which
may impact Consultant's financial ability to perform this Agreement.
Consultant also represents that Consultant is not the subject of any
criminal investigation or proceeding and that neither Consultant nor,
to the actual knowledge of Consultant's senior management, any
employee or representative of Consultant, have been convicted of a
felony. The City has relied upon such representations and considers
such representations to be a material aspect of this Agreement.
Consultant hereby acknowledges that City would be significantly harmed
if such representations were not correct.
9. TERMINATION. This Agreement may be terminated by
City without cause on ten (10) days written notice to Consultant. In
the event of such termination by City, Consultant shall be entitled to
- 5 -
only the compensation earned by it prior to the date of the
termination notice, plus compensation for (i) necessary work performed
during the ten-day notice period and authorized in the termination
notice and (ii)-all costs reasonably and necessarily incurred by
Consultant to the date of the termination and in effectuating the
termination.
10. NOTICES. Notices to the parties, unless otherwise
requested in writing, shall be sent to:
City: THE CITY OF VERNON
ATTN: BRUCE V. MALKENHORST
CITY ADMINISTRATOR
4305 SANTA FE AVENUE
VERNON, CA 90058-0805
Consultant: WRMS ENGINEERING, INC.
ATTN: VICE PRESIDENT, FINANCE & ADMINISTRATION
1556 PARKSIDE DRIVE
WALNUT CREEK, CA 94596
11. CONFIDENTIAL INFORMATION.
A. Access to Confidential Information. City may
provide Consultant with, or allow Consultant access to, certain
information not available to the public concerning the City, or
businesses located in the City. The information may include company
information, taxes, sales, value of assets, or other such information.
All such information that is marked or otherwise clearly noted as
"Confidential" shall be known as "Confidential -Information."
B. No Disclosure. Except as expressly permitted,
Consultant shall not disclose, permit the disclosure of, release,
disseminate, or transfer, whether orally or by any other means, any
part of such Confidential Information to any other person or entity,
whether corporate, governmental, or individual, without the express
prior written consent of an authorized representative of the City.
- 6 -
Consultant shall return any written Confidential Information and all
copies made of such items to the City upon the City's written request,
but in any event not later than the date that Consultant has performed
all services to be performed pursuant to this Agreement. Consultant
hereby agrees that such Confidential Information and any documents
provided may be used by Consultant only as authorized by the City.
Consultant shall take reasonable measures to avoid any disclosure of
any such Confidential Information to any unauthorized person.
C. Court Ordered Disclosure. Consultant shall
immediately notify the City of any court order or subpoena requiring
disclosure of Confidential Information, and shall cooperate with legal
counsel in the appeal or challenge of any such order or subpoena.
Recipient may only disclose Confidential Information required to be
disclosed pursuant to court order or subpoena after legal counsel has
exhausted any lawful and timely appeal or challenge.
D. Remedies. In addition to any other remedies that
it may have at law or in equity, the City shall be entitled to a
temporary and permanent injunction by a court of competent
jurisdiction against any breach or threatened breach of the
Confidential Information provisions of this Agreement. Consultant
acknowledges that in case of such breach or threatened breach of said
provisions, the City would have no adequate remedy at law.
12. STANDARD OF CARE AND LIABILITIES.
A. Standard of Care and Remedies. Consultant
warrants that it shall perform the Services using that degree of skill
and judgment exercised by recognized professional firms performing
services similar to the Services, and in accordance with all
applicable laws, regulations, and codes.
- 7 -
B. No Other Warranties.
Except as set forth in
preceding Section 12(A), Consultant provides no warranties or
guarantees of any type whatsoever with respect to the Services, the
Project or this Agreement. Without limiting the foregoing, Consultant
does not guarantee or warrant.(and shall have no liability for) the
work, goods or services of any other contractor or other third party
providing services to or for the benefit of the City in connection
with the Project.
C. Liabilities. Notwithstanding any other
provision of this Agreement, Consultant's and its subcontractors' (if
any) aggregate cumulative liability to City, including its divisions
and related entities, arising out of or relating to this Agreement
from any and all causes, shall in no event exceed Two Million
Dollars($2,000,000.00).
D. No Consequential Damages. In no event shall
either party or its subcontractors (if any) be liable for special,
indirect, punitive, exemplary or consequential damages of any nature,
and each party hereby releases the other party and its subcontractors
therefrom, including without limitation loss of revenues -or profits or
costs of capital.
E. Application. As a material aspect of this
Agreement, to the maximum extent permitted by law, the limitations,
releases, waivers, exclusive remedies provisions and other provisions
of this Section 12 above, shall apply in all cases, irrespective of
whether any claim arising under or relating to this Agreement arises
out of or relates to any breach of contract, breach of warranty, tort
liability (including negligence), strict liability, indemnity claim or
other claim or liability of either party.
- 8 -
13. FORCE MAJEURE.
Each party shall be excused from
performance and shall not be considered to be in default with respect
to any obligation hereunder to the extent that its failure of
performance is due to an event of Force Majeure. The term "Force
Majeure" shall mean any act or event that delays or prevents a party
from timely performing obligations under this Agreement (other than
the payment of monies due) or complying with the conditions required
under this Agreement if such act or event is beyond the reasonable
control of the party affected, including but not limited to acts of
God or the elements; explosion; fire; epidemic; landslide; mudslide;
sabotage or terrorism; lightning; earthquake; flood or similar
cataclysmic event; an act of public enemy; war; blockade; civil
insurrection; riot; civil disturbance; unavailability of utilities;
strike or other labor difficulties; or restraint or restriction
imposed by law or regulation or other acts of governmental
authorities.
14. COMPLETION NOTICES. Upon completion of the Services,
Consultant shall, and upon completion of any independently
identifiable portion of the Services Consultant may, notify City in
writing of the date of said completion and request confirmation of
such completion by City. Upon receipt of any such notice, City shall
promptly confirm to Consultant in writing that the Services referred
to in said notice were completed on the date indicated in said notice
or provide Consultant with a written listing of the Services not
completed. Any Services included in Consultant's notice to City and
not listed by City as incomplete in a listing delivered to Consultant
within thirty (30) days of receipt of said notice shall be deemed
complete and accepted. With respect to Services listed by City as
- 9 -
incomplete, Consultant shall complete such Services and the above
acceptance procedure shall be repeated.
15. GENERAL PROVISIONS.
A. Independent Contractor. At all times during the
term of this Agreement, Consultant shall be an independent contractor
and shall not be an employee of City. City shall have the right to
control Consultant only insofar as the results of Consultant's
services rendered pursuant to this Agreement; however, City shall not
have the right to control the means by which Consultant accomplishes
services rendered pursuant to the Agreement except to the extent that
such services involve the use of City property or Confidential
Information.
B. Consultant Not Agent. Except as City may
specify in writing, Consultant shall have no authority, express or
implied, to act on behalf of City in any capacity whatsoever as an
agent. Consultant shall have no authority, expressed or implied,
pursuant to this Agreement to bind City to any obligation whatsoever.
C. Indemnification. Each party (an "Indemnitor")
shall, subject to Section 12, indemnify, defend, protect and hold
harmless the other party and its officers, agents and employees
(collectively, "Indemnitees"), from and against any and all claims,
demands, losses, damages, liabilities, fines, charges, penalties,
orders; judgments and all costs and expenses incurred in connection
therewith, including reasonable attorney's fees and costs of defense,
arising out of claims of bodily injury (including death) or physical
property damage, in any such case to the extent caused by Indemnitor's
(or its subcontractors', if any) negligence or willful misconduct; but
in any event excluding any of the same arising from or caused by the
- 10 -
negligence or willful misconduct of an Indemnitee.
D. Insurance. Prior to commencing work hereunder,
Consultant shall provide City with proof of insurance providing and
maintaining the coverages and endorsements set forth in the Insurance
Schedule attached hereto as Exhibit "C" and made a part hereof by
reference. Said proof of insurance shall also provide that said
policy or policies shall not be canceled or materially reduced in
coverage without giving at least thirty (30) days prior written notice
to the City. Consultant shall not permit a subcontractor or vendor to
perform work on City premises unless and until a certificate of
insurance is obtained showing that such subcontractor or vendor has
worker's compensation coverage.
If City allows Consultant to employ subcontractors
pursuant to Section F below, as part of the services rendered under
this Agreement, Consultant's protective coverage is required.
Consultant may include all subcontractors as insureds under its own
policy or shall furnish separate insurance for each subcontractor,
meeting the requirements set forth herein.
E. Attorney's Fees. In the event that it becomes
necessary for either party to this Agreement to enforce any of the
provisions of this Agreement, the parties agree that a court of
competent jurisdiction may determine and fix reasonable attorney's
fees to be paid to.the successful litigant.
F. Assignment and Subcontracting Prohibited.
Consultant may not assign or subcontract any right or obligation
pursuant to this Agreement except with the express written consent of
City. Any other attempted,or purported assignment of any right or
obligation pursuant to this Agreement shall be void and of no effect.
G. Recitals. All recitals are incorporated by
reference.
H. Waiver. Any waiver at any time by either party
of its rights with respect to a default under this Agreement, or with
respect to any other matters arising in connection with this
Agreement, shall not be deemed a waiver with respect to subsequent
default or other matter.
I. Governing Law. The validity, interpretation and
performance of this Agreement shall be controlled and construed under
the laws of the State of California.
J. Amendments. This Agreement may be modified or
amended only by a written document executed by both Consultant and the
City and approved as to form by the City Attorney.
K. Entire Agreement. This Agreement is the entire
agreement of the parties. Each party represents that in entering into
this Agreement, it has not relied on any previous representations or
understandings of any kind or nature.
L. Benefit of Agreement. This Agreement shall bind
and benefit the parties hereto and their heirs, successors', and
permitted assigns.
M. Consultant Exclusively Liable. Notwithstanding
any other provision of this Agreement (including the Exhibits hereto),
the obligations and liabilities of Consultant arising under or
relating to this Agreement are obligations and liabilities solely of
Consultant, and shall not constitute obligations or liabilities of any
direct or indirect shareholder or other investor of Consultant, or of
any of their respective directors, officers, agents or employees,
notwithstanding any reference herein or in any such Exhibit to any
- 12 -
such third party.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed by and through their authorized officers on the date,
month and year first written above.
CITY OF VERNON
r
BY:
-'`- EONIS C. MAL G, M yor
ATTEST:
BRUCE V. MALKENHORST, City Clerk
APPROVED AS TO FORM.
EDUARDO OLIVO, City Attorney
Attachments:
Exhibit A: Scope Document
WRMS ENGINEERING, INC.
("Consultant"), a wholly owned
subsidiary of Calpine
r:3
T
B
T-L L- -L C .
Exhibit B: Consultant's Rate/Expense Schedule
Exhibit C Insurance Schedule (Consultant)
- 13 -
MALBURG GENERATING STATION PROJECT
VERNON, CALIFORNIA
EXHIBIT A -
SCOPE OF WORK
1. BACKGROUND
WRMS Engineering, Inc. (Consultant) shall provide project management, engineering review, compliance
support and construction oversight services as expressly described herein for the proposed new 134 megawatt
combined cycle combustion turbine based power plant to be located at a site within the City limits (the "Malburg
Generating Station Project" or the "Project"). The Project is more fully described in the Specification for
Detailed Engineering, Procurement, Construction and Startup of the Project (the "Specification") dated July 25,
2002.
The Project is currently in the advanced stage of environmental permitting. The CEC is in the process of
reviewing the AFC for the Project (01-AFC-25) and has issued a Staff Assessment ("SA").
The City has procured two new Alstom model GTX-100 combustion turbine generator units (the "CTGs"),
associated heat recovery steam generators (the "HRSGs"), and a steam turbine generator unit (the "STG")
provided by Alstom Power, Inc ("Alstom"). The City has not yet taken delivery of these units. Alstom has
provided guarantees to the City for power output and levels of emissions from this equipment.
The City has also procured the step-up transformers, generator breakers, condenser, cooling tower, and gas
compressors. The City has sent out an RFP and has received responses for the construction of the necessary City
sewer system expansion. The City is in process of sending out an RFP for the construction of the necessary City
gas distribution system expansion. The necessary reclaimed water supply lines are currently under design.
2. SCOPE OF WORK FOR THE CONSULTANT
2.1 GENERAL RESPONSIBILITY
The Consultant will plan, schedule and support all business incidental to the design, construction, startup and
compliance of the Project, and in particular, shall assist to administer the E & PC Contracts, in support of
achieving commercial operation of the Project on the scheduled COD at a cost equal to or less than the approved
Project budget. The Consultant will act as the City's representative for the E & PC Contracts, California Energy
Commission and other Project related agreements or conditions of certification. This Scope of Work (and the
related Rate/Expense Schedule) is based on an overall 16-month schedule consisting of 4 months of design phase,
which overlaps the construction phase by a month, 10 months of construction phase, and 4 months of startup and
commissioning phase.
As of 1/22/2003 Page 1 of 5
2.2 SPECIFIC RESPONSIBILITIES
The specific responsibilities of the Consultant will include the following:
2.2.1 Design and Procurement Phase
2.2. L I Review for Compliance with the Specifications
Review Project design criteria, drawings, execution plan, procurement specifications and other documents from
the E & PC Contractors with respect to compliance with the Specifications. Review the EPC Contractor's
detailed engineering design that may include electrical, mechanical, instrumentation/control, civil, and structural
designs. Validate the technical adequacy of the EPC Contractor's design in critical systems and performance
areas. Review designs for operability, maintainability, and reliability. Verify the preferences of the City are
reflected in the design, along with good engineering practice and accepted utility practices. Recommend design
acceptance on behalf of the City.
2.2.1.2 Monitor Schedule Development and Progress
Review the overall Project Schedule prepared by the E & PC Contractors to verify the Project will achieve the
scheduled COD. Monitor and report on the E & PC Contractors' interface with the power island supplier,
interface with electric, sewer, and natural gas utilities, compliance with CAISO AGC and metering requirements,
the compliance conditions of the CEC AFC, compliance with the work breakdown structure and critical path
activities, and the level of float and contingency assumed. Provide an integrated Project schedule, which will
include input from the E & PC Contractors. Review and recommend approval of monthly progress reports from
the E & PC Contractors. Upon obtaining knowledge of any project delays the Consultant will notify the City
thereof.
2.2.1.3 Approve Major Suppliers
Review major suppliers selected by the E & PC Contractors for compliance with the E & PC Contracts. Review
manufacturing drawings of the suppliers, materials, scheduled delivery for compliance with the E & PC Contracts
and the Specifications and the overall Project Schedule.
2.2.1.4 Attend Factory Tests and Inspections
Factory acceptance testing and inspections are not in part this scope.
2.2.2 Construction Phase
2.2.2.1 Construction Oversight
Maintain a physical presence at the job site to monitor and inspect construction of the Project by the E & PC
Contractors, including job walks, quality reviews, safety reviews and general site .condition. Conduct weekly and
monthly construction status meetings. Facilitate coordination between plant and interconnection construction.
As of 1 /22/2003 Page 2 of 5
2.2.2.2 Site Coordination
Coordinate and recommend resolutions on scheduling conflicts with multiple contractors on the site, including gas
utility contractor, sewer utility contractor and E & PC contractors.
2.2.2.3 Permit Compliance
The CEC is in the process of reviewing the AFC for the Project (01-AFC-25) and has issued a preliminary Staff
Assessment ("SA"). In the SA are proposed reporting and/or verification requirements that the Consultant will
fulfill on behalf of the City and submit to the CEC compliance project manager ("CPM" ).
Consultant shall fulfill the "Resident Engineer's" role as defined by the Project's Conditions of Certification.
The South Coast Air Quality Management District ("SCAQMD") has issued a Determination of Compliance
(SCAQMD 2002b). In it are rules and regulations for compliance. The Consultant will fulfill the reporting
requirements on behalf of the City.
The Federal EPA has not issued a Final Prevention of Significant Deterioration ("PSD") permit but is expected to
shortly. The Consultant will fulfill the reporting requirements of the PSD permit on behalf of the City.
In addition, the Consultant will review the permit conditions of any other relevant local, state or federal agencies
with regard to E & PC Contractors' work or other City work. Prepare and submit for City all reports required to
satisfy compliance with these permits (except to the extent that the E & PC Contractors is required to prepare and
submit such reports under the E & PC Contracts, in which case the Consultant's duty will be limited to
supervision of the E & PC Contracts). In City's name and behalf and in consultation with City, obtain, maintain
and, as necessary or desirable, revise required permits (other than permits that the E & PC Contractors is required
to obtain under the E & PC Contracts, with respect to which Consultant's duty is limited to supervising the E &
PC Contractors' performance under the E & PC Contracts).
2.2.2.4 Mitigate Change Order Impacts
Review change order requests from the E & PC Contractors, assess impact on cost and schedule. Negotiate and
review change orders to the E & PC Contracts and other contracts for construction materials or services as
required to accommodate unforeseen circumstances or to resolve E & PC Contractors or other contractor claims.
Recommend to the City approval or rejection of change orders.
2.2.2.5 Monitor Progress for Schedule Compliance and LD Impacts
Monitor schedule as reported by the E & PC Contractors, observe productivity of site management and labor,
recommend changes and improvements to E & PC Contractors and City, estimate probability of delay and cost
impacts to City and other schedule related tasks.
2.2.2.6 Contractor Payment
Review and advise with respect to Project Milestone Completions as itemized in the E & PC Contracts.
Document and photograph progress at milestone completion dates. Review and advise with respect to
applications for payment submitted by the E & PC Contractors under the E & PC Contracts, Review and advise
with respect to invoices and other applications for payment submitted by any other contractors, assemble the
documents required to make the monthly construction draw request pursuant to the Bond Indenture, and certify
the construction draw request as City's agent.
2.2.2.7 Reporting
As of 1/22/2003 Page 3 of 5
Provide to City monthly detailed financial and construction progress reports comparing actual cost to date and
progress against the approved Control Budget and Project Schedule. Produce forecast -to -complete spreadsheets
showing positive/negative deviation with the Control Budget and Project Schedule. Maintain true, complete and
accurate cost ledgers in accordance with generally accepted accounting principles utilized by the City regarding
the services provided and expenses paid or incurred by it pursuant to this Agreement. Cooperate with the City to
perform annual financial audits. Provide monthly updated Construction Cost Estimates for review by the City.
Notify the City promptly if Construction Costs materially exceed or are expected to materially exceed the
approved Control Construction Budget.
2.2.3 Startup and Performance Phase
2.2.3.1 Prepare Performance Test Procedures
Prepare the Performance Test Procedures ("PTP") for the Project in compliance with the Specifications and
related standards, to test against the guarantees provided for the City -furnished equipment as well as the Auxiliary
Power Guarantee of the E & PC Contractors. Obtain E & PC Contractors approval of test procedures.
2.2.3.2 Prepare the RFP
Prepare the RFP specifications and requirement documents for an Independent Contractor to perform the
performance tests in accordance with the PTP and applicable regulatory requirements. In addition to the PTP
criteria, the performance tests will include emissions source test protocol development and testing, Continuous
Emissions Monitoring System (CEMS) certification testing and monitoring plan development, as well as
development of Relative Accuracy and Test Audit (RATA) procedures. The performance tests will be conducted
in accordance with ASME power test code PTC-46 and the applicable regulatory requirements, i.e., EPA and
SQAQMD rules and testing methodologies. The performance tests will be witnessed by the Consultant, the City,
the E & PC Contractors and the O&M Contractor.
2.2.3.3 Coordinate, Witness and Document Performance Tests
Coordinate performance tests as scheduled with the E & PC Contractors and the scheduling protocols of the City
and/or the CAISO. Review test progress, review and recommend approval or rejection of test procedure
exceptions, monitor data collection, perform preliminary calculation of performance (e.g., capacity, heat rate,
reliability) for comparison with guarantee conditions in the Specifications and the E & PC Contracts. Provide
recommendations to the City relating to the acceptance or rejection of certified test reports.
2.2.4 EPC Contract Closeout
2.2.4.1 Punchlist Development and Review
Review Punchlist as submitted by E & PC Contractors including'forecast cost to complete. Perform walkdown of
Project to confirm scope of items and costs. Negotiate additions/deletions, estimated costs, and recommend
approval of items within the Control Budget. Determine correct level of security for punch list value. Supervise
the completion of the Punchlist by the E & PC Contractors and other contractors prior to, and as a condition of,
final payment.
2.2.4.2 Review and Assess Final Purchase Agreements and Assignments
As of 1/22/2003 Page 4 of 5
Review subcontractor lien release or waivers, warranty issues list as submitted by E & PC Contractors or as
discovered by the Consultant. Verify that the E & PC Contractors has paid subcontractors and obtained the
necessary lien releases prior to recommending approval of Project milestone payments. Review assignment of
major Project agreements and permits from E & PC Contractors to City. Review liquidated damages calculations
submitted by E & PC Contractors.
2.2.5 Other EPC-Related Items
Provide construction or engineering consulting as the City may request. Respond, in a timely manner, to written
requests for Project information from the City. Obtain and maintain workers' compensation, unemployment and
other employee -related insurance covering Consultant's employees as is required under California law. Obtain
and maintain insurance policies and coverage for the Consultant, as defined in Exhibit C. Advise the City with
respect to the project labor agreement. Review and advise the City with respect to, the E & PC Contractor's duty
to develop and maintain safety procedures and an effective safety program, including, without limitation, fire and
explosion safety measures and individual protective measures. Review and advise the City with respect to, the E
& PC Contractor's obligation to provide site security services for the Project during construction and startup.
Review and provide assistance on any warranty, breach or other claims arising in connection with the goods or
services provided to or for the Project under the E & PC Contracts or otherwise, subject to City's review and
approval.
2.2.6 Pre -O&M Phase
2.2.6.1 Prepare the RFP
Prepare the specifications and requirement documents for a RFP for the bidding, evaluation and selection of.an
O&M Contractor. Include in the specifications that the results of the performance testing will be the basis for the
O&M Contractor's plant output/performance goals.
2.2.6.2 Support Negotiation of O&M Agreement
Review sections of proposed O&M Contract including scope of work, scheduling, and annual performance
measurement and testing requirements and performance bonus/penalty determination.
2.2.6.3 O&M Staffing and Training
Coordinate with respect to the O&M Contractor's obligation to hire and train the Project operating and
maintenance work force and perform the duties defined for the City's operating forces during checkout, startup
and performance testing of the Project. Coordinate with the O&M Contractor to witness -test the performance
testing by others. Familiarize the O&M Contractor with the Project activities (including the status of the
construction schedule and the status of the punch list), and coordinate with City concerning the transition to the
O&M Contract.
2.2.6.4 First Year Annual O&MBudget Review
Review the annual operating budget for the first operating year of the Project as proposed by the O&M Contractor
during the later stages of construction of the Project, including forecast cost of labor, consumables, spare parts,
and contract services. Revise, as necessary, and recommend for City approval.
As of 1/22/2003 Page 5 of 5
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EXHIBIT C
INSURANCE SCHEDULE (CONSULTANT)
Consultant shall provide proof of insurance, including a standard certificate of insurance, in at least the
following amounts and coverage (combined single limit permitted):
I Coverage and Limits
BodilyIniury Property Damage
Hazards Each Person Each Accident Each Accident
Automobile Liability
Owned Automobiles $ 500,000 $1,000,000 $ 500,000
Hired Automobiles $ 500,000 $1,000,000 $ 500,000
Non -Owned Automobiles $ 500,000 $1,000,000 $ 500,000
Workers' Compensation $ Statutory
Employers' Liability $ 1,000,000 per employer
II. General and Professional Liability
General Liability
Independent Contractors
Products - Completed Operations
Contract Liability
Professional Liability
$1,000,000
$2,000,000
$1,000,000
$1,000,000
$2,000,000
$1,000,000
$1,000,000
$2,000,000
$1,000,000
$1,000,000
$2,000,000
$1,000,000
$2,000,000
$2,000,000
$2,000,000
a. The general liability policy shall contain the following special endorsements which shall be noted on
or attached to the standard certificate of insurance:
1. An endorsement naming the City of Vernon, its officers, and employees as additional insureds to
the extent of the indemnity obligations assumed hereunder under the policy.
2. An endorsement providing the City of Vernon thirty (30) days notice of cancellation or material
reduction of coverage.
3. An endorsement providing coverage for all operations under this Agreement.
b. In addition to the standard certificate of insurance, proof of general and professional liability coverage
shall be furnished in the form checked below. Certification of the following proofs by the insurance
agent or broker will not be accepted:
X For each policy, a notarized letter from the underwriter or carrier certifying that the coverage and
statements in the standard certificate of insurance (attached thereto) are true and correct and that
the signator is an officer authorized to so certify.
A copy of each policy certified by an officer of the underwriter or carrier and notarized.
EXHIBIT C
SUPPORTING
DOCUMENTS
CITY COUNCIL
LEONIS C. MALBURG
Mayor
THOMAS A. YBARRA
Mayor Pro—Tem
WM. 'BILL" DAVIS
Councilman
H. "LARRY" GONZALES
Councilman
W. MICHAEL MCCORMICK
Councilman
BRUCE V. MALKENHORST
City Administrator/City Clerk
FAX (323) 826-1438
CITY HALL
4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058
TELEPHONE (323) 583-8811
February 27, 2003
WRMS Engineering, Inc.
1556 Parkside Drive
Walnut Creek, CA 94596
Re: Agreement for Professional Consulting Services
To Whom It May Concern:
EDUARDO OLIVO
City Attorney
FAX: (562) 869-1883
KEVIN WILSON
Director of Community Services & Water
FAX: (323) 826-1435
KENNETH J. DeDARIO
Director of Utilities
FAX: (323) 826-1425
STEVEN E. PARKER
Fire Chief
FAX: (323) 826-1407
BRUCE W. OLSON
Police Chief
FAX: (323) 826-1481
The insurance requirement has been met. Transmitted herewith is a
duplicate original of the above referenced agreement approved by the
Vernon City Council on February 5, 2003.
If you have any questions regarding this matter, please call Mr.
Kenneth DeDario at (323) 583-8811 ext. 211.
Very truly yours,
Gloria J. rosco
Chief De i y City Clerk
GJO/gm
CC: Eric Fresch
Kenneth DeDario
Dolores Fonseca
Resolution No. 8148.
Agreement No. 03-012
AIIIIIIIIII ■
[i VVRMS Engineering
Customized. Critical. C
"'RANSMITTAL
*94.PROJECT: 02-440 City of VerryI6 �L
TO: Judy Lehr
City of Vernon - Legal Department JAN X l 2003
4305 Santa Fe Avenue
Vernon, CA 90058 t Icr-. A I r-,r.r
LETTER
Date: 1/23/03
We Transmit
For Your
The Following
® Herewith
❑ Approval
❑ Specifications
❑ Under Separate Cover
❑ Review and Comment
❑ Distribution as Indicated
❑ Submittals
❑ Drawings
Transmitted Via
❑ Fax Number:
❑ Information Only
❑ Close-out documents
El Overnight Service
❑ Use/File
❑ Computer Files
❑ US Mail
ED Action
❑ Documents
❑ Per Your Instructions
® Contract Documents
Other:
I Other:
I Other:
Copies
Date
Description
2
1/23/03
Agreement for Professional Consulting Services
Remarks
Judy:
Attached, please find two executed contracts for your completion. Please let me know if you need
any further information.
One clarification -should the invoices be sent to Bruce V. Malkenhorst or is there a more
appropriate person? Please let me know, so we can process the invoice correctly.
Thanks,
Elizabeth
Copies to: 02-440
Signed:
E. lly, Plkdjecf§uort Supervisor
If you did not receive all the listed items, please call (800) 889-9767.
1556 Parkside Drive • Walnut Creek • CA 94596 • (800) 889-9767 • Fax (925) 933-5167
L
CITY COUNCIL
LEONIS C. MALBURG
Mayor
THOMAS A. YBARRA
Mayor Pro-Tem
WM. "BILL" DAVIS
Councilman
H. "LARRY" GONZALES
Councilman
W. MICHAEL MCCORMICK
Councilman
BRUCE V. MALKENHORST
City Administrator/City Clerk
FAX (323) 826-1438
R ec a ARDO OLIVO
ity Attorney
r, FAX: (562) 869-1883
CITY HALL
4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058
TELEPHONE (323) 583-8811
December 24, 2002
Paul Maxwell
Director
Navigant Consulting Inc.
3100 Zinfandel Drive
Suite 600
Rancho Cordova, California 95670-6026 �f
Re:
with Calpine
Dear Mr. Maxwell:
302 KEVIN WILSON
rector of Community Services & Water
so FFI. (323) 826-1435
KENNETH J. DeDARIO
Director of Municipal Utilities
FAX: (323) 826-1425
STEVEN E. PARKER
Fire Chief
FAX: (323) 826-1407
BRUCE W. OLSON
Police Chief
FAX: (323) 826-1481
On December 10, 2002, Mr. DeDal'o, the e Vernon Utilities
Department, requested a copy of a Non -Disc on -Circumvention Bement
("NDA") that was entered into between Navi t and the WRMS Group of Cal 'ne
Corporation ("Calpine") regarding Owner's services for the Malbur
Generation Station Project. We learned that the NDA was in o w e the City
was utilizing Navigant to either help in negotiations with Calpine as the Owner's
engineer or to assist the City in preparing a request for proposal for such services:
Mr. DeDario has advised that you initially agreed to provide a copy of the
NDA to the City. Nevertheless, we have not yet received a copy. On behalf of the City
Council and the City Administrator I request that yo provide me with a copy. Please fax
a copy to me at (562) 869-1883.
Sincerely,
c \
Eduardo Olivo \
City Attorney
cc: City Administrator
CITY COUNCIL
LEONIS C. MALBURG
Mayor
THOMAS A. YBARRA
Mayor Pro-Tem
WM. 'BILL" DAVIS
Councilman
H. "LARRY" GONZALES
Councilman
W. MICHAEL MCCORMICK
Councilman
BRUCE V. MALKENHORST
City Administrator/City Clerk
FAX (323) 826-1438
City Council
City of Vernon
Honorable Members:
CITY HALL
4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058
TELEPHONE (323) 583-8811
January 30, 2003
EDUARDO OLIVO
City Attorney
FAX: (562) 869-1883
KEVIN WILSON
Director of Community Services & Water
FAX: (323) 826-1435
KENNETH J. DeDARIO
Director of Utilities
FAX: (323) 826-1425
STEVEN E. PARKER
Fire Chief
FAX: (323) 826-1407
BRUCE W. OLSON
Police Chief
FAX: (323) 826-1481
At the City Council Meeting held January 22, 2002, the City Attorney
advised this legislative body that based on the importance of the
matter related to the construction of the Malburg Generating Station
Project (MGSP) that it was necessary that authorization be granted to
the City Administrator to execute a Professional Consulting Services
Agreement with WRMS Engineering, Inc., a Owned Subsidiary of Calpine
Corporation in connection with the engineering portion of the MGSP.
This has been reviewed by the City Attorney and it is hereby
recommended that the Professional Consulting Services Agreement with
WRMS Engineering, Inc., for the Malburg Generating Station Project be
ratified.
Very truly yours,
Bruce V. Malkenhorst
City Administrator/City Clerk
BVM/gm
CITY COUNCIL
L LEONIS C. MALBURG
Mayor
THOMAS A. YBARRA
Mayor Pro—Tem
WM. 'BILL" DAVIS
Councilman
H. "LARRY" GONZALES
Councilman
W. MICHAEL MCCORMICK
Councilman
BRUCE V MALKENHORST
City Administrator/City Clerk
FAX (323) 826-1438
r-
W,
` EDUARD LN
(� r1
y J � ity ttorney
:(562) 86 83
(� . K WILSON
1 irector o community Services &Water
FAX: (323) 826-1435
CITY HALL BRUCE W. OLSON
4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058 Police Chief
TELEPHONE (323) 583-8811 FAX: (323) 826-1481
Recommendation was previously made to the Finance Committee concerning
the termination of the contract between the City and Calpine (WRMS).
It is hereby recommended that the Finance Administrator, Eric Fresch,
be authorized to oversee all the legal issues and documentation
relating to the termination process.
KENNETH J. DeDARIO
Director of Utilities
FAX: (323) 826-1425
STEVEN E. PARKER
Fire Chief
FAX: (323) 826-1407
August 14, 2003
Finance Committee
City of Vernon
Honorable Members:
Very truly yours,
Bruce V. Malkenhorst
Director of Finance
BVM/mt
CITY COUNCIL
LEONIS C. MALBURG
Mayor
THOMAS A. YBARRA
Mayor Pro-Tem
WM. 'BILL" DAVIS
Councilman
H. "LARRY" GONZALES
Councilman
W. MICHAEL MCCORMICK
Councilman
BRUCE V. MALKENHORST
City Administrator/City Clerk
FAX (323) 826-1438
Finance Committee
City of Vernon
Honorable Members:
11o�i
01
EDUARDO OLIVO 64�03
City Attorn y
k FAX: (562 86 1883
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Di c ity Se-i & Water
FAX: ( 2) 826-1
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CITY HALL
4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058
TELEPHONE (323) 583-8811
August 5, 2003
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(3M) 826-142
N E. ER
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FA 3) 8 -14 7
3R E W.
Police
FAX: ( 6-1481
In accordance with Section 9 of the Calpine Contract it is recommended
that the City terminate the contract as soon as it is feasible. This
is due to their present financial conditions.
Very truly yours,
Bruce V. Malkenhorst
Director of Finance
BVM/mt
Memo
Date: July 31, 2003
To: Bruce V. Malkenhorst
City Administrator/City Clerk
From: Eric Fresch
Finance Administrator ei-, lij
Re: Canceling Calpine WRMS Contract and Hiring
Engineers In ependently
I recommend the City well its contract with Calpine "WRMS" for
engineering support. Calpine is near insolvent a= one of its
executives, Steve Wynn, seeks to take over WRMS and have the
Vernon contract assigned to his new company.
I propose to.pay directly a group of engineers from Calpine
-during the building of the MGS Project on a month -to -month basis
under Section 7 of my agreement with the City - seeking
reimbursement, upon your approval, from the City on a month -to -
month basis.
The City will save over $1 million on this arrangement.k---�
This savings increases if the MGS Project team can use the
following Utilities Department people for the following tasks:
1) Otis Smith for Project Engineer Electrical ?
• City distribution upgrades
• Edison upgrades, and
• ISO equipment installation
•
2) Abraham Alemu for Contract Administration/Cost Control
• Budget
• Cost Accounting
• Contract Administration
3) Dan Garcia for MGS ISO.Application and Environment
4
MEMORANDUM
Date: August 13, 2003
To: Bruce V. Malkenhorst
City Administrator
From: Eric T. Fresch
Legal Counsel
RE: MGS Construction & Equipment Contracts — Legal Work
Mr. Malkenhorst,
I request your authorization to be responsible for all the legal issues and documentation
relating to the MGS Project Construction & Equipment contracts. These include Alstom
Power Inc, Marelich Mechanical, and Calpine WRMS.
Since I have responsibility for the performance of the above contractors, I want the
responsibility for administering the agreements we have with them.
GiITY COUNCIL
E LEONIS C. MALBURG
+ Mayor
THOMAS A. YBARRA
Mayor Pro-Tem
WM. "BILL" DAVIS
Councilman
H. "LARRY" GONZALES
Councilman
W MICHAEL MCCORMICK
Councilman
BRUCE V. MALKENHORST
City Administrator/City Clerk
FAX (323) 826-1438
Finance Committee
City of Vernon
Honorable Members:
EDUARDO OLIVO
City Attorngy
FAX: (56218671883
N E.
ir_e
F 3)
CITY HALL BR E W.
4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058 P Police t
TELEPHONE (323) 583-8811 FAX:
/ fv
August 5, 2003
826-
& Water
In accordance with Section 9 of the Calpine Contract it is recommended
that the City terminate the contract as soon as it is feasible. This
is due to their present financial conditions.
Very truly yours,
Bruce V. Malkenhorst
Director of Finance
BVM/mt
C[TY COUNCIL
LEONIS C. MALBURG
' Mayor
THOMAS A. YBARRA
Mayor Pro-Tem
WM. 'BILL" DAVIS
Councilman
H. "LARRY" GONZALES
Councilman
W. MICHAEL MCCORMICK
Councilman
BRUCE V. MALKENHORST
City Administrator/City Clerk
FAX (323) 826-1438
Finance Committee
City of Vernon
Honorable Members:
CITY HALL
4305 SANTA FE AVENUE, VERNON, CALIFORI
TELEPHONE (323) 583-8811
August 7, 2003
EDUARDO OLIVO
City Attorney
,fAX: (562) 869-1883
Community
aAX: (323) $:
of
Staff has determined that it is necessary to issue Change Order No. 1
to the existing contract with University Marelich Mechanical &
Galliera, Inc., DBA Trico Construction (UMM/T) for the MGS Project.
This change order will cover additional work/duties performed by the
(UMM/T) in connection with the project. The duties are as followed:
• Correction and Revision of the drawings generated by the City's
design engineers, Power Engineering, Inc.
• Construction of the gas lateral linear.
• Construction of the meter skid, onsite abandonment of the
existing gas line.
• Additional handling and storage of the CTG, STG and HRSG.
• Establishment of survey control points for the construction
layout.
It is hereby recommended that Change Order No. l to the contract with
the UMM/T in the amount of $3,009,756, be approved.
Very truly yours,
Bruce V. Malkenhorst
Director of Finance
BVM/mt