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Resolution No. 85371 2 3 4 5 6 7 8 C, , 10 11 12 13 EMA■ 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 8537 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON APPROVING AND AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES CONTRACT BY AND BETWEEN THE CITY OF VERNON AND EDM SERVICES, INC. FOR THE MALBURG GENERATING STATION PROJECT WHEREAS, the City of Vernon ("City") is constructing a 134 MW Combined Cycle Power Plant, the Malburg Generating Station (the "Malburg Project"), for the purpose of installing additional generating capacity that will yield an efficient, cost-effective, and reliable source of electric generation to the City's inhabitants; and WHEREAS, on July 16, 2003, the City Council of the City of Vernon adopted Resolution No. 8252 with the intention of expediting the purchase of supplies and services for the Malburg Project; and WHEREAS, on February 5, 2003, the City Council of the City of Vernon adopted Resolution No. 8145 approving an agreement with CCC Consultants to perform Chief Building Official ("CBO") services on behalf of the California Energy Commission for the Malburg Project; and WHEREAS, the City has determined that it needs the services of a consultant to oversee the execution of the CBO's duties on behalf of the California Energy Commission and to perform other support services as needed for the Malburg Project; and WHEREAS, the City has determined that EDM Services, Inc. possesses the technical knowledge and expertise to furnish the CBO oversight services to facilitate the Malburg Project; and WHEREAS, on September 15, 2004, the Finance Committee considered the recommendation of Bruce V. Malkenhorst, Director of Finance, dated September 8, 2004, that an agreement with EDM Services, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Inc. be approved and executed; 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 EDM Services, Inc. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF VERNON AS FOLLOWS: SECTION 1: The City Council of the City of Vernon hereby finds and determines that the recitals contained hereinabove are true and correct. SECTION 2: The City Council of the City of Vernon hereby approves the Professional Services Contract with EDM Services, Inc., in substantially the same form as the copy which is attached hereto as Exhibit A and incorporated by reference. SECTION 3: The City Council of the City of Vernon hereby authorizes the Mayor and the City Clerk to execute said Contract for, and on behalf of, the City of Vernon. SECTION 4: The City Council of the City of Vernon hereby directs the City Clerk, or his designee, to send one fully executed Contract to: EDM Services, Inc. Attn. Butch Walls 2685 Park Center Drive, Building C Simi Valley, CA 93065 - 2 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SECTION 5: 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 15th day of September, 2004. ATTEST: BRUCE V. MALKENHORST, City Clerk LEONIS C. MAL URG, Mayor - 3 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STATE OF CALIFORNIA - ) ss COUNTY OF LOS ANGELES ) I, BRUCE V. MALKENHORST, City Clerk of the City of Vernon, do hereby certify that the foregoing Resolution, being Resolution No. 8537, was duly adopted by the City Council of the City of Vernon at a regular meeting of the City Council duly held on Wednesday, September 15, 2004, and thereafter was duly signed by the Mayor of the City of Vernon. (SEAL) BRUCE V. MALKENHORST, City Clerk - 4 - EXHIBIT 0 1 Professional Services Contract Malburg Generating Station - CBO Oversight Vernon, California EDM Services, Inc. Contract No. 818-VER-01 ..'1`` j'^..�-.. Sl._� ARC Jt R"e, 7s ...� f._ —N ET L Prepared: September 1, 2004 LM EDM Services, Inc.. 2685 Park Center Drive, Building C Simi Valley, California 93065 Internet Address: edm@edmsvc.com Phone (805) 527-3300 FAX (805) 583-1607 EDM Job No. 04-135-818 EDM Services, Inc. September 1, 2004 Professional Services Contract- CBO Oversight - Malbmg Generating Station PROFESSIONAL SERVICES CONTRACT Contract Number 818-VER-01 Business Terms This Professional Services Contract (Contract) is entered into as of September 1, 2004 between, EDM Services, Inc. (Consultant), a California Corporation, and The City of Vernon, California (City), a California Corporation. The parties agree as follows: 1.0 The Work Consultant shall provide Chief Building Official oversight services and other support services on as needed basis at the City of Vernon Malburg Generating Station Project per the Memorandum of Understanding between the California Energy Commission and Consultant. 2.0 Timing of the Work All the work pursuant to this Contract shall be perforin0 on art as ,heeded basis commencing on September.l, 2Q04 _ __- _ __ 3.0 Contract Price As full and complete compensation to Consultant for the timely, proper and complete performance of all obligations relating to this Contract, City shall pay Consultant, subject to the additions and deletions expressly provided for in this Contract, the Contract Price set forth in Schedule B. 4.0 Notices All notices, approvals, consents and other communications between the parties shall be in writing, and shall be sent by fax or by certified mail (return receipt requested) to the respective addresses set forth below, or at such other address as may be furnished by either party to the other in writing. Consultant - EDM Services, Inc. Attn: Mr. T.L. "Butch" Walls 2685 Park Center Drive, Building C Simi Valley, California 93065 Fax: (805) 583-1607 Telephone: (805) 527-3300 X '�0 � City - City of Vernon, California ` ✓ Attn: Mr. == m9eh � v we$ V , K - o ,.1 4305 Santa Fe Avenue C41 � s Vernon, California 90058 Fax: (323) 826-1439 j Telephone: (323) 583-8811 ./ 2 EDM Services, Inc. September 1, 2004 Professional Services Contract- CBO Oversight - Malbu g Generating Station 5.0 Law and Arbitration This Contract shall be governed by the laws of the State of California. The parties agree that any and all disputes arising out oforin relation to this Agreement, including without limitation any action in tort, shall be resolved exclusively, finally and conclusively by arbitration in Lg �e,(.Af VCounty, California under the auspices of and pursuant to the rules of the Judicial ei Arbitration & Mediation Services Inc. (JAMS), or if JAMS is not willing or able to perform such arbitration__. , the rul the American Arbitration Association's Construction Rules. snisssion volving sums less t a b,�00 shall be ieso ve on a asi 7 alone. ectsions of the arbitrators s a in writing, and the arbitrators s a ' n reasons for their decision. The arbitration decision shall be final and binding on the parties. Notwithstanding the foregoing, the parties shall be permitted to access the court system to enforce any arbitration award or to obtain injunctive relief. The exclusive jurisdiction and venue for any such action shall be the Superior Court of California, Ve ra County. t4fS 4kje, 1.21 6.0 Entire Agreement- This Conttact shall be cor pxrs 4 of thg a signed ltxisiriess to riffs (Bu$Jness Terms), together with Schedule A - The Work Specification, Schedule B - Compensation and Payment, c edule insurance; Schedule D General Provisions, -and the Memorandum of ` erstan mg tween the Cal;fgrmaEnergy Commissioned Consultant, which are all attached:- In tlle:e-vent of conflietbet.vvecn-ibese Business T rmsan&any of the schedules. these Business Terms shall prevail. In the event of conflict between schedules, the schedules S shall be prioritized in the following order: MOU, Schedule D first, then Schedule C, B, and A. This agreement is the entire agreement of the parties, and supersedes all prior written and/or verbal communications, proposals, notices of award, negotiations, understandings and agreements, whether written or verbal, between the parties with respect to the subject matter dealt with in this Contract. Consultant expressly waives all claims for compensation based upon quantum merit, implied contract or oral contract. Each party to this Contract acknowledges that no representations, inducements, promises or agreements, verbally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied in this Contract, and that no other agreement, statement or promise not contained in this Contract or a subsequent amendment or change order shall be valid or binding. No amendment or change in the provisions of this Contract shall be made, except in a formal written amendment signed by Consultant and a corporate officer of City, or in a written change order. Each party represents and warrants that it has read and fully familiarized itself with this Contract, and that such party has been fully authorized to sign this Contract. 3 EDM Services, Inc. September 1, 2004 Professional Services Contract- CBO Oversight - Malburg Generating Station Consultant EDM Services, Inc. a California Corporation Name: T. L. "Butch" Walls Title: Secretary Date: City The City of Vernon, California a California Corporation Name: Title: Date: 4 EDM Services, Inc. September 1, 2004 Professional Services Contract- CBO Oversight - Malburg Generating Station SCHEDULE A The Work Specification 1.0 Introduction This Schedule establishes the scope of the Work to be performed by Consultant pursuant to this Contract, scheduling requirements for completing the Work, and the technical requirements that Consultant shall satisfy and adhere to in accomplishing the Work. 2.0 Scheduling and Other Requirements Subject to the other terms and conditions of this Contract, Consultant shall commence the Work on or about September 1, 2004. The work will proceed periodically, as needed, through the end of September 2005. 3.0 General The City of Vernon has filed an Application for Certification, with the California Energy Commission to cof structand.opemtgthe M�alb-lrg G-evergft-Statim the City of Vernon. This applicatuin has beep approved by thgE�i6 Comrrussio The E rgy Commission has the authority to enforce alif©rnia Building-Codes-an=well-as-local ordinances, regulations, and standards. The Energy Commission has contracted with a third party contractor (CCC Consultants) to act on behalf of the Energy Commission as the Chief Building Official. The Consultant is to perform work to oversee the execution of the Chief Building Official duties on behalf of the Energy Commission. 4.0 Specific Description of the Work Consultant shall provide oversight services of the Chief Building Official on an as -needed basis, as outlined in a Memorandum of Understanding between the California Energy Commission and Consultant. 5.0 Critical Milestone Schedule There is not a critical milestone schedule for Consultant's work associated with this contract. - End of Schedule A - Schedule A - I EDM Services, Inc. September 1, 2004 Professional Services Contract- CBO Oversight - Malburg Generating Station SCHEDULE B Compensation and Pavment for reimbursable contracts 1.0 Contract Price. -1.1 Not to Exceed Value As Compensation for Consultant's performance of the Work in accordance with the terms and conditions of this Contract, City shall pay Consultant a maximum Contract Price (Contract Price) of $100..000.00. The actual amount will be based on the time and materials required to perform the Work, billed in accordance with Consultant's published billing rates included as Attachment 11 to this Schedule B. 1.2 Entire Compensation Except as -provided, below -in Scbedulc--D,,,the-Contrac-t-,Price-is full and complete cQtrpensation, and codsttetea the entire compensattri due'nsultant for the Work at d any and Il_>fl Co sultant's obligajcins,`hereunder, regardless of difficulty, unforseen circumstances, hours worked or equipment, materials or personnel required. cable taxes, Site and all hereunder. The Contract Price set forth above and the rates set forth in any attachment incorporated into this Schedule are not subject to escalation for any reason. No adjustments in compensation shall be made as a result of changes in the value of any currency. The Contract Price shall only be adjusted by a formal, written Change Order to this Contract. 2.0 Compensation for Changes The compensation due Consultant, or the credit due City, for "Changes" (as that term is defined in Schedule D) may not be established verbally, and shall be established in a written change order signed by City as described in Schedule D. Compensation adjustments in each such change order shall be established by one or more of the following bases, as determined by City: (a) a lumpsum price to be negotiated between the parties; (b) work unit rates as set forth in Attachment 1 to this Schedule B, or such lower rates as are otherwise agreed in the applicable Change Order; or (c) time unit rates as set forth in Attachment 11 to this Schedule B, or such lower rates as are otherwise agreed in the applicable Change Order. Once established, the amount of the compensation due Consultant or credit due City for a change shall not be subject to adjustment for any reason, including changes in the value of any currency. Schedule B - 1 EDM Services, Inc. September 1, 2004 Professional Services Contract- CBO Oversight - Malburg Generating Station 3.0 Invoicing and Payment Consultant shall submit invoices acceptable to City, and City shall make payment to Consultant in accordance with the terms set forth in Schedule D. Schedule B - 2 EDM Services, Inc. September 1, 2004 Professional Services Contract- CBO Oversight - Malburg Generating Station SCHEDULE Attachment H Compensation and Payment Cost Plus Rate Sheet Consultant's 2003-2004 En-gineering Billing ng Rates dated September 1, 2004, following herein, shall be part of this Schedule B, Attachment 11. City agrees to compensate Consultant in accordance with these billing rates. V Schedule B - 3 EDM Services, Inc. September 1, 2004 Professional Services Contract- CBO Oversight - Malburg Generating Station 2003-2004 Engineering Billing Rates Enzineering Personnel Construction Manaeement Personnel Principal 140.00111our Construction Manager 125.00/Hour Senior Project Manager 135.00/Hour Inspection Supervisor 105.00/Hour Project Manager 125.00/Hour Senior Observer 95.00/Hour Senior Project Engineer 115.00!Hour Observer 78.00!Hour Project Engineer I IO.00!Hour Field Clerk 68.00.'Hour Senior Engineer 105.00/Hour Engineer 90.00/Hour SCADA/PLC Personnel Estimator/Scheduler 88.001Hour System Specialist 125.00/Hour Senior CAD Manager 98.00/Hour Program Manager 115.00/Hour CAD Manager 93.00/11our Senior Programmer 105.00/Hour Senior Technologist 93.00/Hour Programmer 95.00/Hour Technologist 88.00!Hour PLC Fabricator 78.00/Hour Senior Designer 83.00!Hour PLC Assistant 68.00/Hour Senior Technician 78.00/Hour Senior CAD Operator 78.00i`1-lour Cathodic Protection Personnel Technician 68.0IRatir 0atfiodie'lroltcctro Specjaltst 125.00/Hour CAD Operator 68.00%Hour Scnior Technic" J' 78.00/Hour Designer - - __; -58 Hour --_ Technician - --• 68.00/Hour Senior Draftsman 53.00/Hour Draftsman _ a8,0011totctw-1 '-L-W -Pers©ntpt Material Expeditor/Coordinator` 68=00/14onr °Survey Manage%' 125.00/Hour Project Accountant ., -, 6800!liour .:. -'RegisteredL"andSuneyor_ 95.00IHour Clerical 58.00/Hour Senior Survey Assistant 68.00/Hour Word Processing 48.00/Hour Rodman 48.00/Hour Clerk 38.00/Hour Other Charges: CAE/CAD Svstem 15.0011-Iour Underwriters Laboratory Enclosure Certification Fee 500.00/Enclosure Cathodic Protection Field Test Instruments 3.00/Hour Close Interval Survey Equipment 125.00 Day Autotttobiles 0.20/Mile 7.00/Hour Differential GPS Survey Station with Data Logger 300.00/Day Differential GPS Survey Station with Glonas Satellite Capability with Data Logger 400.00/Day Total Survey Station 18.00/Hour In House Blue Line Reproduction 0.10/Square Foot Notes: 1. The above rates will be multiplied by the following figures for overtime worked. 100% Straight Time - 8 hours per day, Monday through Friday. 130% Overtime - Over 8 hours. but less than or equal to 12 hours per day. Monday through Friday. The first 8 hours on Saturday. 160% Premium Time - Over 12 hours. Monday through Friday. After 8 hours on Saturday. Sundays and holidays. Schedule B - 4 EDM Services, Inc. September 1, 2004 Professional Services Contract- CBO Oversight - Malburg Generating Station 3. All invoices are due and payable within 30 days. 1.5% monthly interest will be added to balances outstanding for more than 30 days. 4. 10% will be added to all subcontracted and third party services._ material list prices, airfare. lodging, meals, special mailings, long distance telephone, reproduction, binding, etc. 5. Depositions, court appearances, public testimony, and similar special services, as well as preparation for same, shall be billed at 150% of the above rates. 6. Plotting Supplies "A" "B" "C" "D" "E" Check Print 0.50 1.00 1.50 TOO 4.00 Vellum 1.00 2.00 3.00 4.00 6.00 Mylar 1.50 3.00 4.50 6.00 12.00 T For materials and equipment delivered outside of California. sales and use taxes will not be collected. The payment of these taxes will be Customer's responsibility. - End of Schedule B - Schedule B - 5 EDM Services, Inc. September 1, 2004 Professional Services Contract- CBO Oversight - Malbmg Generating Station SCHEDULE C Insurance Consultant and its' Sub-Consultant(s), if any, shall, prior to commencement of any work and for the duration of this Agreement, obtain and maintain at its' own expense, those minimum levels of insurance coverage as set forth below. The insurance coverage as listed herein, shall be properly endorsed to include those contractual obligations which may be identified further within this Agreement and shall be endorsed to provide City and Owner all the rights and privileges of an additional insured. Consultant shall cause its' insurers to issue Certificates of Insurance or, upon request, certified copies of the insurance policies evidencing that the coverages and policy endorsements required under this Agreement, are maintained in force. Consultant shall ensure its' Sub-Consultant(s), if any, maintain those insurance requirements as specified in this Schedule C and are endorsed as additional insured(s) on all required Consultant insurance coverages.--, Consultantand it's Subconsultant(s) ,4f,.any,--shall-,maintain in effect the following minimum=itisurat Ee covezag s-on an OccucxeneeV` 64Polisy A. Workers Compensation within the statutory limits and, if necessary, Longshoremen coverage xercising Liability Insurance shall have a minimum limit of $1,000,000 per occurrence. B. Comprehensive General Liability insurance, including,but not limited to, Contractual Liability, Products and Completed Operations Liability, Broad Form Property Damage and Bodily Injury Liability, and Explosion, Collapse and Underground Liability, with a minimum combined single limit of $1,000,000 per occurrence. C. Comprehensive Automobile Insurance, including, but not limited to, all owned, non - owned or hired vehicles with a minimum combined single limit of $1,000,000 per occurrence for bodily injury and property damage. D. Excess Liability Insurance with limits of $2,000,000. Such evidence of insurance can either be through the primary insurance coverages or through an excess liability policy. Such insurance shall at all times be on an occurrence form and provide policy conditions as broad as those required in the primary insurance. - End of Schedule C - Schedule C - 1 EDM Services, Inc. September 1, 2004 Professional Services Contract- CBO Oversight - Malbu g Generating Station SCHEDULE D General Conditions 1.0 Definitions and Responsibilities 1.1 Definitions Whenever used in the Agreement of which these General Provisions are a part, the following terms shall mean: a. "Agreement" shall mean that formally executed Agreement or Contract which includes the Contract Documents to which this Schedule D is attached. The Agreement constitutes the entire agreement between the parties relating to its subject matter. b. "Consultant" shall mean EDM Services, Inc. and, where applicable, its affiliated companies, directors, officers, employees, agents and representatives. c `Coatrac-t llocumetts" shllincltide any inquiry, _invitation to bid, or proposal which may bade; -but tt9t neti san y,-_pruceded,ex"ution of the Agreement, the General Provisions and all exhibits and schedules attached to the Agreement and all plarrs-nd-s ifrcatrons ideptifed -in Cantract,Documents - d. 'Contract -Price" shall have--rrieaniug given-ii-Ii Section 3.1. e. "City" shall mean the entity which has executed the Agreement and, where applicable, its affiliated companies, and its officers, directors, employees, representatives and agents. f. "General Provisions" or "General Conditions" shal} mean these General Conditions of this Schedule D. g. "MOU' shall mean the Memorandum of Understanding between the California Energy Commission and Consultant for work associated with the Malburg Generating Station Project in Vernon, California. h. "Owner" shall mean City of Vernon, California, and where applicable, their affiliated companies, directors, officers, employees, agents, and representatives. i. "Premises" shall mean the physical premises under City's and or Owner's control or ownership where Work hereunder is to be performed. j. "Proprietary Information" shall mean all information, whether written or oral, which Consultant acquires from, through or on behalf of City, directly or indirectly, or which arises out of the Work, concerning the Work or proprietary processes involved in the Work including, without limitation, information concerning past, present or future business plans of City, information about the operations of City's Premises, and other Schedule D - 1 EDM Services, Inc. September 1, 2004 Professional Services Contract- CBO Oversight - Malburg Generating Station City information or know-how obtained during the Work, except information falling into any of the following categories: (1) Information which, at the time of disclosure hereunder, is in the public domain; (2) Information which, after disclosure hereunder, enters the public domain, except where such entry is the result of Consultant's or any entity within Consultant's control or breach of this agreement; (3) Information which prior to disclosure hereunder, was already in Consultant's possession without limitation regarding disclosure to others; or (4) Information which subsequent to disclosure hereunder, is obtained by Consultant from a third party who is lawfully in possession of such information and not subject to a contractual or - fiduciary,relationship-to City with respect to said information and who does not re4Wfir Cbnsultawt to-aP* to refr hi*bfn disclosing _- suchlinfipri to others. and its ho have k. "Work" or "Services" shall mean the work defined by the MOU, or performing of other services performed by Consultant and required to be performed from time to time by City under the Agreement. 1.2 City's and Consultant Representations Consultant and City represents that it has read and understands the Agreement and Contract Documents including the MOU. The Consultant represents it understands the Owner's regulations concerning premises access, badges, parking, security, safety, fire, prohibited drugs and alcohol, and smoking and other rules, and that Consultant has visited the Premises where the Work is to be done and is familiar with the local conditions under which it is to be done. Consultant also represents that it is experienced in performing and competent, and qualified to perform the kind of tasks or assignments included in the Work and employs or has available for employment in sufficient numbers all unskilled, skilled, administrative, supervisory, professional and managerial or other personnel required to perform the Work as required by the Agreement. 1.3 Representatives of the Parties Schedule D - 2 EDM Services, Inc. September 1, 2004 Professional Services Contract- CBO Oversight - Malburg Generating Station At all times while Work is being performed on the Premises each party shall be represented thereon by a designated representative with power to bind his employer as to the authorizing, performing or accepting of Work. Each party may notify the other in writing of the identity of such persons from time to time. 2.0 - Scope of Work: Division of Responsibility 2.1 Description of the Work A description of the Work is set forth in the Agreement and the Memorandum of Understanding between Consultant and the California Energy Commission. City may at any time, by written change order by City's authorized representative identified in the Agreement, make changes only to extend the work duration and total compensation of Consultant's work. Changes in the scope of work, or duties and obligations, shall be the authorized only by the California Energy Commission. 2.2 Consultant's Resonsibihties Unless otherwise specified in the Agreement, Consultant shall perform the duties as outlined in the Mmorandm--of--Undmtan-ding-betty,eerr--**.,Consultant and the Cali s t a' Enete- vCo nmxssion 2.3 City's Responsibilities Unless otherwise specified in the Agreement, City shall: a. Provide a site for the Work, together with any'data as may be necessary for Consultant to perform the Work: and b. Provide access to the Work site together with such necessary adequate space near such site as may be necessary for the Work. 2.4 Work Injury The treatment and care of injuries sustained by Consultant's employees, Sub - Consultants, representatives or otherpersonnel shall be and remain the responsibility of Consultant. City's and/or Owner's first aid facilities, if any, however, will be made available to Consultant's employees in emergency cases which are the direct result of accidents occurring on the Premises. City shall incur no liability for, and Consultant hereby agrees to indemnify Owner against, any causes of action, claim, liability or costs, including attorneys' fees, arising in whole or part out of the furnishing of such first aid facilities or assistance to Consultant's employees, Sub -Consultants, representatives or other personnel, or out of the failure to furnish such facilities or Schedule D - 3 EDM Services, Inc. September 1, 2004 Professional Services Contract- CBO Ovenigbt - Malburg Generating Station assistance. 3.0 Compensation and Payment 3.1 Contract Price The compensation set forth or provided for in the Agreement is the Contract Price. Whether it expressly provides for the reimbursement of costs incurred by Consultant or simply for the payment of a lump sum of money, it is intended to be the full and complete payment for satisfactory completion of the Work and, unless otherwise stated, to cover all costs whether for materials, equipment, tools, labor, services and taxes and all overhead, rentals and profit or fee, if any. 3.2 Reimbursables and Other Expenses City -shall -reimburse Consultant, -if and -when provided. for by the Agreement, travel expenses; ineludi ng but nothmifed to ail -fare, taxis andltibjns, st economy class rates. City -shall Qonlpe _ sate.consulWt for n alv'0l!4 if ' _e_cifically provided for in the Agreement. Consultant shall not bill City and City shall not pay Consultant for (1) timespeuMrmealtime such aalunrh_€rrdinnerbrealcss.(2)per diem charge for travel less than 80 miles 0M1yoress ralioior {3) overtime charges m unless the-o erti b was craated-from warl€ performed far the account of or by specific written request by City. City shall not pay per diem expenses unless Consultant obtains City's prior written approval and each individual receiving per diem expenses does not maintain a domicile within 80 miles of the Work site while performing services under this Agreement. City shall reimburse Consultant for purchases as defined in the Agreement, however, any increase or mark-up on such purchases shall be exclusive of tax, including sales or use tax. Schedule D - 4 EDM Services, Inc. September 1, 2004 Professional Services Contract- CBO Oversight - Malburg Generating Station 3.3 Terms of Payment Consultant shall be entitled to receive monthly progress payments. Consultant shall submit progress payment requests, prepared in accordance with City requirements, by the fifteenth (15th) of each month, for the prior calendar month's completed work. City will make payment to Consultant within thirty (30) days after receiving invoices from Consultant. 3.4 Records, Inspection and Audit During the course of Work being performed, Consultant and any of its Sub - Consultants, shall maintain and retain, not less than three years after completion thereof, complete and accurate records of the Consultant's costs which are chargeable to City under this Agreement. City or its designated, authorized representatives, shall have the right during this three year period, upon written reasonable notice, to inspect and audit those records. Such records to be maintained and retained by the Consultant shall_includeR,(a);,payroll--record- accountim .for,.the- total- -time. distribution of the i—onsunant s-•emptoyees worxtng tun or part time on the work.(to permit tracing to payrolls Arid r ated taX- turns) as well �s E ele i pecks_car signed receipts for payroll payments in cash; (b) invoices for purchases, receiving and issuing documgnts,,and all- the otherunit inventory•-reeords for the Consultant's stores stock or captt7 xtems,(Opaid inv tttt es and ca`ncel.ec chicks for tnater$al purchased and for the -Sub=G©i��ukanf° r and any -other third -parties' -char-ges and (d) any other documentation City deems necessary to support costs and charges under this Agreement. 3.5 Corporate Conduct Consultant, its employees, agents or representatives shall not offer or give to an officer, official, or employee of City or Owner, gifts, entertainment, payments, loans or other gratuities to influence the award of a contract or obtain favorable treatment under a contract. 4.0 Termination of Contract 4.1 Non -Default Termination City, at its sole discretion, may terminate this Contract upon immediate written Notice to Consultant and such termination shall be effective in the manner specified in such Notice and shall be without prejudice to any claim that either party may have against the other. Schedule D - 5 EDM Services, Inc. September 1, 2004 Professional Services Contract- CBO Oversight - Malburg Generating Station 4.2 Termination Payment In the event of any such termination, in full and complete settlement for the termination of the Work, City shall pay Consultant a proportion of the Contract Price equal to the proportion of the Work done satisfactorily and for which City has not previously paid. in no event shall total payment exceed the Contract Price. 4.3 Loss of Profits In the event of any termination of this Contract or reduction in scope of the Work, Consultant shall not be entitled to damages for loss of profits for the unexecuted portion of the Work or any other damages because of such termination or reduction. 5.0 General provisions 5.1 Iadependent_Consultant COMults1Wi_be4nt depe tdent Cons- ioint: rth lspect to all the services to be performed hereunder and shall have responsibility for and control over the details and ;e employed in employees or its employees, the details of the services and the methods by which the services are accomplished, it being understood that City is interested only in the results to be obtained by Consultant. 5.2 Treatment of Confidential and Proprietary Information a. For ten years after the effective date of this Contract, Consultant shall refrain from using any Confidential or Proprietary information except in connection with the Work or from disclosing it to any third party other than to employees of Consultant who require it in performance of the Work and except to such other third persons as City may otherwise authorize in writing. if disclosure to such an employee or other third person is so authorized, Consultant shall enter into with said party, a confidentiality agreement containing provisions with respect to use and disclosure of Proprietary Information substantially the same as those contained in this General Condition. b. Consultant shall take reasonable precautions to safeguard any documents containing Proprietary information which City may supply to Consultant hereunder. Consultant may copy, in whole or part, such documents to the extent necessary for the performance of the Work and Consultant shall return to City upon the completion of the Work or request by City all such documents and copies. Schedule D -6 EDM Services, Inc. September 1, 2004 Professional Services Contract- CBO Oversight - Malbrug Generating Station 5.3 Compliance with City's and Owner's Regulations Consultant shall observe, and shall cause its Sub -Consultants and the employees of each of them to observe, all of City's and Owner's regulations as they may be revised from time to time concerning the safety and security of persons and property, housekeeping and Premises or plant work hours. 5.4 Compliance with Authority Consultant shall comply with all laws, regulations, executive orders and other applicable requirements of any governmental agencies having jurisdiction including the Fair Labor Standards Act, the Occupational Safety and Health Act and all those relating in any way to employment practices and protection of the environment. Consultant shall not discriminate against any employee or any applicant for employment for reasons of race, color, creed, sex, age or national origin. of all social respect to or ty and Owner tes or penalties upon it by this section. 5.5 Assignments and Sub -Consultants Consultant's rights under this Agreement may not be'assigned nor may its duties be delegated or subcontracted without the prior written consent of City or the California Energy Commission. Any assignment or delegation or subcontract in violation of this section shall, at City's discretion, be void. Consent by City shall not relieve Consultant of responsibility for performance of Consultant's obligations hereunder. City may assign all or any part of this Agreement at any time effective immediately upon written notification to Consultant. 5.6 Waiver The waiver by either party of a breach or default by the other party shall not be deemed a waiver of any different or later breach; nor shall any delay or omission by either party to exercise any right it may have hereunder operate as a waiver of any breach or default or of such right. 5.7 Applicable Law Schedule D - 7 • r� EDM Services, Inc. September 1, 2004 Professional Services Contract- CBO Oversight - Malburg Generating Station This Agreement shall be governed by and construed under the laws of the state of California. 5.8 Captions The captions used in this Agreement are for convenience only and shall in no way define, limit or describe the scope or intent of this Agreement or any part thereof. 5.9 Notices All notices required or permitted hereunder shall be in writing and shall be delivered to the entity or person identified in the Contract Documents under Notices. Notice sent by properly addressed mail, certified or registered with return receipt requested and postage prepaid, shall be effective three days after deposit in the mail or when received, whichever is earlier. Notice sent by facsimile, telegraph, telex or cable and conftrinedby_copy-thereofsent-_by registered or-certifred.mail shall be effective upon the date of such facsimld; telegraph, telex yr cable .Notices het in any other manner s1aTle efi�ctie only and When received 5.10 Er hlt' gre�melie The Agreement, and the Memorandum of Understanding Between the Consultant and the California Energy Commission, constitutes the entire Agreement by the parties and it may not be altered, amended or changed without a duly executed document by all parties. 5.11 Attorneys' Fees In the event a dispute, claim or litigation arises regarding this Agreement, the prevailing party shall be entitled to reimbursement for reasonable attorneys' fees and actual costs. 5.12 Changes in the Work City and/or the California Energy Commission, may make "Changes" by increasing, reducing or deviating from the requirements of the scope of Work. - End of Schedule D - Schedule D - 8 EDM Services, Inc. September 1, 2004 Professional Services Contract- CBO Oversight - Malburg Generating Station CHANGE Contract Number: 818-VER-01 Change Number: The requirements of the above designated Contract are changed as follows: City and Consultant agree that Consultant's compensation shall be adjusted as follows: City and Consultant agree that Consultant's schedule shall be adjusted as follows: This adjustment covers the entire compensation for the Change set forth above and includes, but is not limited to compensation for all engineering, material, equipment, subcontracts, labor, overhead, profit, changes in scheduling and delays resulting, directly or indirectly, from the Change, as further detailed in the Agreement. Consultant (EDM Services, Inc.) City (City of Vernon, California) By_ Date By — Date EDM Services, Inc. September 1, 2004 Professional Services Contract- CBO Oversight - Malburg Generating Station CD INSTRUCTIONS TO CONSULTANT Contract Number: 818-VER-01 Instruction to Consultant Number. Date: Specific Instructions to Consultant: In accordance with-tfi 3-*d is and=lvondit ons ef1he Agreerrtent;..the City classifies these instructions as: Supplementary tMtiudtibns�-not inv.otv—i> g a Change (Should these instructions -be_ in the opinioh ot=Consukant,.i"Change" w-ntteh-goticethereofmtufbe given to City within 10 days of the receipt of these instructions. If such written notice is given, Consultant shall not commence with the work so ordered until written agreement is reached on the classification of these instructions and on the resulting adjustment in contract compensation, if any.) In the event that City and Consultant fail to agree on the classification of these instructions or resulting adjustment in contract compensation, if any, refer to the Changes Section of the Agreement. A Change (Consultant shall, within 10 days of the receipt of these instructions, furnish City a statement of its proposal for adjustment in contract compensation occasioned hereby. Consultant shall not commence with the work so ordered until written agreement is reached on the resulting adjustment in contract compensation, if any.) In the event that City and Consultant fail to agree on the classification of these instructions or resulting adjustment in contract compensation, if any, refer to the Changes Sections of the Agreement. ` City Representative Date Please acknowledge receipt of this instruction by returning one copy signed in the space provided below. Consultant's signature hereon does not indicate his acceptance of the classification assigned hereto by City. Consultant Representative Date 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 Bodily Injury 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. Liability General Liability $1,000,000 $2,000,000 $1,000,000 Premises Operations $1,000,000 $2,000,000 $1,000,000 Elevators (If Applicable) $1,000,000 $2,000,000 $1,000,000 Independent Contractors $1,000,000 $2,000,000 $1,000,000 Products - Completed Operations $1,000,000 $2,000,000 $1,000,000 Contractual Liability $1,000,000 $2,000,000 $1,000,000 Professional Liability $2,000,000 $2,000,000 $2,000,000 a . The general liability policy shall contain the following special endorsements which shall be noted on or attached to the standard certificate of insurance: 1. An endorsement naming the City of Vernon, its officer§, and employees as additional insureds under the policy. 2. An endorsement providing the City of Vernon thirty (30) days notice of cancellation or material reduction of coverage. 3. An endorsement providing coverage for all operations under this Agreement. 4. Such other endorsement as may be required by addendum hereto. DOCUMENTATION • Certificate of Insurance from vendor's insurance agent; • Copy of insurance policy Declaration's page; • Actual copies of any Endorsement; • Additional Insured Endorsement naming City as Additional Insured; • Vendor insurance package to include endorsement form appropriate to the project being undertaken on the City's behalf.