Resolution No. 8635
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RESOLUTION NO. 8635
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A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION OF A
PROFESSIONAL CONSULTING SERVICES AGREEMENT BY AND
BETWEEN THE CITY OF VERNON AND GALLIERA INC. DBA
TRICO CONSTRUCTION FOR PROJECT MANAGEMENT SERVICES
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7 WHEREAS, the City of Vernon (the "City") is a municipal
8 corporation and a chartered city of the State of California organized
9 and existing under its Charter and the Constitution of the State of
10 California; and
11 WHEREAS, the City is in the process of undertaking various
12 capital projects.hat require the services of a consultant to perform
13 project management services; and
14 WHEREAS, one of the capital projects is the design,
15 acquisition and construction of a Refined Fuel Oil Processing Plant
16 Facilities that would refine waste oil into usable diesel fuel to be
17 used, among other purposes, to power combustion turbine generators and
18 the City's existing diesel generators located at Station A to help
19 generate electricity from renewable sources; and
20 WHEREAS, the City has utilized the services of Galliera Inc.
21 dba Trico Construction ("Trico") for the Malburg Generating Station
22 Project; and
23 WHEREAS, the City has determined that Trico possesses the
24 technical knowledge and expertise to perform the project management
25 services necessary for its various capital projects; and
26 WHEREAS, on January 5, 2005, the Finance Committee considered
27 the recommendation of Bruce V. Malkenhorst, Director of Finance, dated
28 December 29, 2004, that an agreement with Trico for construction
1 project management services be prepared, approved and executed.
2 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
3 CITY OF VERNON AS FOLLOWS:
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SECTION 1:
The City Council of the City of Vernon hereby
5 finds and determines that the recitals contained hereinabove are true
6 and correct.
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SECTION 2:
The City Council of the City of Vernon hereby
8 approves the Professional Consulting Services Agreement with Trico, in
9 substantially the same form as the copy which is attached hereto as
10 Exhibit A and incorporated by reference.
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SECTION 3:
The City Council of the City of Vernon hereby
12 authorizes the Mayor to execute said Agreement for~ and on behalf of,
13 the City of Vernon and the City Clerk is hereby authorized to attest
14 thereto.
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SECTION 4:
The City Council of the City of Vernon hereby
directs the City Clerk, or his designee, to transmit an executed
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Agreement to the following:
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Galliera Inc. dba Trico Construction
Attn. James Bruschera, General Manager
445 Hampshire Street
San Francisco, CA 94110
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SECTION 5:
The City Clerk of the City of Vernon shall
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certify to the passage of this resolution, and thereupon and
thereafter the same shall be in full force and effect.
APPROVED AND ADOPTED this 5th day of January, 2005.
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_/~~
MALKENHORST, City Clerk ~
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ATTEST:
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BRUCE V.
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STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
ss
I, BRUCE V. MALKENHORST, City Clerk of the City of Vernon, do
hereby certify that the foregoing Resolution, being Resolution No.
8635, was duly adopted by the City Council of the City of Vernon at a
regular meeting of the City Council duly held on Wednesday, January 5,
2005, and thereafter was duly signed by the Mayor of the City of
Vernon.
BRUCE V. MALKENHORST,
(SEAL)
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EXHIBIT
A
PROFESSIONAL SERVICES AGREEMENT
for
CONSTRUCTION PROJECT MANAGEMENT SERVICES
This Agreement ("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 ofthis Sth day of January, 200S, in the City of Vernon, County of Los
Angeles, State of California.
By and Between
The City of Vernon
(hereinafter referred to as "City")
430S Santa Fe Avenue
Vernon, CA 900S8
And
Galliera, Inc. dba Trico
Construction
(hereinafter referred to as "Trico")
44S Hampshire Street
San Francisco, CA 9411 0
WHEREAS, the City is constructing a 134MW Combined Cycle Power Plant, the
Malburg Generating Station (the "MGS Project"); and
WHEREAS, the City has an existing contract with Trico for equipment purchase
and professional services for the Vernon Electrical System, Electrical Interconnect
Upgrade in connection with the MGS Project; and
WHEREAS, the City has determined that it needs the services of a firm to
manage the construction of various projects for the City's Electrical System and its Light
& Power and Gas Departments; and
WHEREAS, the City, in order to fulfill its requirements under State Assembly
Bill No. 1890, public benefits program, is constructing refined fuel oil processing plants
("Biomass Projects") for the generation of electric energy and the production of a fuel
stock resource for its existing diesel fuel generators at Station A with New Age Fuels,
Inc.; and
WHEREAS, the City has determined that Trico possesses the skill, technical
knowledge and expertise to furnish the professional and consulting services necessary to
manage, as Project Manager, on behalf of the City, the construction of the Biomass
Projects and other capitol projects the City may undertake from time to time for its
Electrical and/or Gas Systems.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1
1. SERVICES
1.0 Trico agrees to provide construction project management services to City
in connection with the Biomass Projects and other construction projects the City may
assign to Trico from time to time (the "Assignment") in accordance with this Agreement
and the individual Notices to Proceed. The scope of services is described in Schedule A
annexed hereto.
1.1 Trico agrees to exercise its best efforts and to apply its knowledge, skills,
experience, and ideas to all its tasks hereunder.
1.2 Trico shall be subject to the reasonable direction of City.
2. RECORDS
2.0 Trico shall (a) maintain orderly files of correspondence, reports, work
product, and all other documents related to the Assignment, and (b) keep, when the City
has specified an hourly rate of compensation for the Assignment, a detailed record of
hours and expenses with corresponding receipts relative to the efforts undertaken
pursuant to this Agreement on an hourly basis.
2.1 All of the foregoing data and records shall be made available to City or its
representative(s) promptly upon request.
3. COMPENSATION FOR SERVICES
3.0 Trico shall be paid for the time devoted by its personnel exclusively to the
required services in accordance with either a flat fee and/or the hourly rate schedule
which are set forth in Schedule B attached hereto. These rates are inclusive of all
overhead, profit, fees and taxes.
3.1 City shall specify for each Assignment the flat fee and/or hourly rates. For
the Biomass Projects, Trico shall be paid a flat fee of eight percent (8%), as set forth in
Schedule B.
3.2 Certain expenses shall be reimbursed in addition to the compensation. for
the time expended by Trico, and shall include actual expenditures without markup made
by Trico for the expenses listed in Schedule B to the extent that they are incurred directly
in connection with the efforts undertaken pursuant to this Agreement.
3.3 Trico shall submit to City on a timely basis a certified statement, sworn to
if required, showing in detail all invoices to be paid for work performed during the
previous month and the amount of Trico's fee due, as provided in this Article 3. Payment
by City to Trico of approved amounts shall be made within fifteen days after Tricots
statement is submitted to City.
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3.4 Trico agrees to pay, as part of its hourly rates or agreed upon lump sum
amount, all costs and expenses incurred in the performance of this Agreement unless
otherwise provided herein, and to pay all taxes, of any kind or nature, imposed upon or
incurred by Trico in the performance of this Agreement.
4.0 TERMINATION
4.0 This Agreement may be terminated by either party at any time, with or
without cause, upon sixty (60) days written notice by registered or certified mail, return
receipt requested. If said termination is for cause, the notice shall contain a stated cause
and the notified party may cure its default within such period (or commence to and
expeditiously continue to cure same if such default cannot be cured within 30 days), in
which event the termination notice shall be deemed null and void.
5.0 INDEMNIFICATION
5.0 Trico agrees to indemnify, defend and hold harmless City from and
against all claims, liability, loss or expense, including legal fees and court costs, (which
legal fees and court costs shall be an obligation of Trico to City) arising out of or in
connection with (a) the negligent acts or omissions of Trico resulting in personal injury or
property damage or (b) Trico's failure to pay any or all costs, taxes and expenses incurred
by or imposed upon Trico in the performance of this Agreement.
6.0 LIMITATIONS OF AUTHORITY
6.0 The relationship created by this Agreement between City and Trico is one
of independent contractor, and it is no way to be construed as creating any type of
employee-employer or agency relationship between City and Trico. Trico agrees that it
shall neither hold itself out as, nor claim to be an employee or agent of City.
6.1 Trico shall not, without the prior written consent of City make any
contractual commitments on behalf of City.
6.2 Trico agrees that it shall not make against City any demand, claim or
application.to or for any right or privilege applicable to an employee of City, including,
but not limited to, worker's compensation coverage, unemployment insurance benefits,
social security coverage or retirement membership or credit.
7.0 PROPRIETARY INFORMATION
7.0 City may disclose to Trico, or Trico may come into contact with or
observe, business information, know-how, marketing plans, inventions and other
intellectual property rights (all of which are hereinafter jointly referred "Proprietary
Information") that are either the property of City or controlled by City. Trico
acknowledges that City's creative briefing, instructions and shared information are
Proprietary Information. Such Proprietary Information shall be held in strict confidence
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by Trico and for a period of ten years shall not be disclosed to any third party without the
express prior written consent and permission of an officer of City, except as otherwise
required by law or if any such Proprietary Information becomes known to the public
through no fault of Trico. Trico shall reasonably safeguard all written material that City
supplies to Trico shall not copy or duplicate such material (except for internal purposes)
without City's prior written consent and shall return such materials to City upon
completion of the services being provided to City or upon City's request.
8.0 PROPRIETARY RIGHTS
8.0 Trico shall have no proprietary interest in the work product created,
produced or developed by Trico during the course of its engagement, but the work
product shall be owned solely and exclusively by City. To the extent permissible under
applicable law, the results and proceeds of such work product shall be deemed for hire
within the definition of 17 U.S.C. Section 101. To the extent not permissible and to the
extent rights other than copyrights are included, Trico expressly assigns all rights to
copyrights, trademarks, patents, trade secrets or other proprietary rights throughout the
world in such work product to City, free of all liens, claims or encumbrances. Upon
request, Trico shall execute and deliver all documents requested by City to effectuate or
perfect the foregoing and this Agreement.
9.0 MISCELLANEOUS PROVISIONS
9.0 Trico may not assign, transfer, delegate or encumber its interest in or
duties under this Agreement without the prior written consent of City, and any such
assignment shall be void.
9.1 This Agreement may not be orally amended, modified or terminated. This
Agreement shall bind the successors and permitted assigns of the respective parties.
9.2 All understandings heretofore had between the parties are merged in this
Agreement, which alone fully and completely expresses their Agreement. This
Agreement shall be construed under the laws of the State of California, and any claims
and causes of action arising under or in connection with this Agreement shall be brought
before a California court of competent jurisdiction.
9.3 If any provision of this Agreement shall be held to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall
in no way be affected or impaired thereby, and such remaining provisions shall remain in
full force and effect. The invalid, illegal or unenforceable provision shall be replaced by a
mutually acceptable provision, which, being valid, legal and enforceable, comes closest
to the intention of the parties underlying the invalid, illegal or unenforceable provision.
9.4 Nothing contained in this Agreement shall be deemed to create a
contractual relationship with or a cause of action in favor of any third party against Trico
or City.
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9.5 Trico shall comply with all applicable laws, rules and regulations, and
represents to City that it has obtained all licenses necessary to provide the services
required, if any.
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:
CITY OF VERNON
By:
Bruce V. Malkenhorst, City Clerk
By:
Leonis C. Malburg, Mayor
APPROVED AS TO FORM:
Eric T. Fresch, City Attorney
GALLIERA, INC. dba TRICO
CONSTRUCTION
By:
Typed Name: James A. Bruschera
Title: General Manager
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SCHEDULE "A"
SCOPE OF SERVICES
The City of Vernon authorizes Galleria Inc. dba Trico Construction to provide the
following services:
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Construction Project Management Services for various projects as
determined by the City of Vernon (City).
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Biomass Projects: Trico shall act as the Construction Project Manager for
the Refined Fuel Oil Processing Plant Facilities being constructed by New
Age Fuel, Inc., with complete oversight authority on behalf of the City
concerning the construction, start-up and operation of the plants.
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SCHEDULE "B"
COMPENSATION FOR SERVICES
FLAT FEEIHOURLY SCHEDULE
Flat Fee Schedule is determined per assignment by City of Vernon. The flat fee shall be
a percentage of the gross overall project cost. The flat fee per project shall be on a
sliding scale from 6% to 8% as determined by the City of Vernon.
Other Compensation: In addition to the Flat Fee Schedule, the City may pay Trico for
services ona time and material basis at the following hourly rates:
Principal Project Manager
Senior Project Manager
Project Manager
Safety Manager
Intern Project Manager
Clerical
$125/hour
$95/hour
$85/hour
$65/hour
$45/hour
$38/hour
The rates are subject to amendment upon agreement between the parties.
The City shall pay Trico's reimbursable expenses (i.e., computer plotting, printing,
postage, project fees, permits, long distance toll charges, Nextel phone bill charges,
mileage @ 50 cents per mile, plane fares, lodging, per diem as apply, and other various
reimbursable expenses. Special Project Management Insurance shall be reimbursable at
its costs depending upon limits of liability as specified by the City.
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. SUPPORTING
DOCUMENTS
PROFESSIONAL SERVICES AGREEMENT
for
CONSTRUCTION PROJECT MANAGEMENT SERVICES
This Agreement ("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 5th day of January, 2005, in the City of Vernon, County of Los
Angeles, State of California.
By and Between
The City of Vernon
(hereinafter referred to as "City")
4305 Santa Fe Avenue
Vernon, CA 90058
And
Galliera, Inc. dba Trico
Construction
(hereinafter referred to as "Trico")
445 Hampshire Street
San Francisco, CA 94110
WHEREAS, the City is constructing a 134MW Combined Cycle Power Plant, the
Malburg Generating Station (the "MGS Project"); and
WHEREAS, the City has an existing contract with Trico for equipment purchase
and professional services for the Vernon Electrical System, Electrical Interconnect
Upgrade in connection with the MGS Project; and
WHEREAS, the City has determined that it needs the services of a firm to
manage the construction of various projects for the City's Electrical System and its Light
& Power and Gas Departments; and
WHEREAS, the City, in order to fulfill its requirements under State Assembly
Bill No. 1890, public benefits program, is constructing refined fuel oil processing plants
("Biomass Projects") for the generation of electric energy and the production of a fuel
stock resource for its existing diesel fuel generators at Station A with New Age Fuels,
Inc.; and
WHEREAS, the City has determined that Trico possesses the skill, technical
knowledge and expertise to furnish the professional and consulting services necessary to
manage, as Project Manager, on behalf of the City, the construction of the Biomass
Projects and other capitol projects the City may undertake from time to time for its
Electrical and/or Gas Systems.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1
1. SERVICES
1.0 Trico agrees to provide construction project management services to City
in connection with the Biomass Projects and other construction projects the City may
assign to Trico from time to time (the "Assignment") in accordance with this Agreement
and the individual Notices to Proceed. The scope of services is described in Schedule A
annexed hereto.
1.1 Trico agrees to exercise its best efforts and to apply its knowledge, skills,
experience, and ideas to all its tasks hereunder.
1.2 Trico shall be subject to the reasonable direction of City.
2. RECORDS
2.0 Trico shall (a) maintain orderly files of correspondence, reports, work
product, and all other documents related to the Assignment, and (b) keep, when the City
has specified an hourly rate of compensation for the Assignment, a detailed record of
hours and expenses with corresponding receipts relative to the efforts undertaken
pursuant to this Agreement on an hourly basis.
2.1 All of the foregoing data and records shall be made available to City or its
representative(s) promptly upon request.
3. COMPENSATION FOR SERVICES
3.0 Trico shall be paid for the time devoted by its personnel exclusively to the
required services in accordance with either a flat fee and/or the hourly rate schedule
which are set forth in Schedule B attached hereto. These rates are inclusive of all
overhead, profit, fees and taxes.
3.1 City shall specify for each Assignment the flat fee and/or hourly rates. For
the Biomass Projects, Trico shall be paid a flat fee of eight percent (8%), as set forth in
Schedule B.
3.2 Certain expenses shall be reimbursed in addition to the compensation for
the time expended by Trico, and shall include actual expenditures without markup made
by Trico for the expenses listed in Schedule B to the extent that they are incurred directly
in connection with the efforts undertaken pursuant to this Agreement:
3.3 Trico shall submit to City on a timely basis a certified statement, sworn to
if required, showing in detail all invoices to be paid for work performed during the
previous month and the amount of Trico's fee due, as provided in this Article 3. Payment
by City to Trico of approved amounts shall be made within fifteen days after Trico's
statement is submitted to City.
2
3.4 Trico agrees to pay, as part of its hourly rates or agreed upon lump sum
amount, all costs and expenses incurred in the performance of this Agreement unless
otherwise provided herein, and to pay all taxes, of any kind or nature, imposed upon or
incurred by Trico in the performance of this Agreement.
4.0 TERMINATION
4.0 This Agreement may be terminated by either party at any time, with or
without cause, upon sixty (60) days written notice by registered or certified mail, return
receipt requested. If said termination is for cause, the notice shall contain a stated cause
and the notified party may cure its default within such period (or commence to and
expeditiously continue to cure same if such default cannot be cured within 30 days), in
which event the termination notice shall be deemed null and void.
5.0 INDEMNIFICATION
5.0 Trico agrees to indemnify, defend and hold harmless City from and
against all claims, liability, lossor expense, including legal fees and court costs, (which
legal fees and court costs shall be an obligation of Trico to City) arising out of or in
connection with (a) the negligent acts or omissions of Trico resulting in personal injury or
property damage or (b) Trico's failure to pay any or all costs, taxes and expenses incurred
by or imposed upon Trico in the performance of this Agreement.
6.0 LIMITATIONS OF AUTHORITY
6.0 The relationship created by this Agreement between City and Trico is one
of independent contractor, and it is no way to be construed as creating any type of
employee-employer or agency relationship between City and Trico. Trico agrees that it
shall neither hold itself out as, nor claim to be an employee or agent of City.
6.1 Trico shall not, without the prior written consent of City make any
contractual commitments on behalf of City.
6.2 Trico agrees that it shall not make against City any demand, claim or
application to or for any right or privilege applicable to an employee of City, including,
but not limited to, worker's compensation coverage, unemployment insurance benefits,
social security coverage or retirement membership or credit.
7.0 PROPRIETARY INFORMATION
7.0 City may disclose to Trico, or Trico may come into contact with or
observe, business information, know-how, marketing plans, inventions and other
intellectual property rights (all of which are hereinafter jointly referred "Proprietary
Information") that are either the property of City or controlled by City. Trico
acknowledges that City's creative briefing, instructions and shared information are
Proprietary Information. Such Proprietary Information shall be held in strict confidence
3
by Trico and for a period of ten years shall not be disclosed to any third party without the
express prior written consent and permission of an officer of City, except as otherwise
required by law or if any such Proprietary Information becomes known to the public
through no fault of Trico. Trico shall reasonably safeguard all written material that City
supplies to Trico shall not copy or duplicate such material (except for internal purposes)
without City's prior written consent and shall return such materials to City upon
completion of the services being provided to City or upon City's request.
8.0 PROPRIETARY RIGHTS
8.0 Trico shall have no proprietary interest in the work product created,
produced or developed by Trico during the course of its engagement, but the work
product shall be owned solely and exclusively by City. To the extent permissible under
applicable law, the results and proceeds of such work product shall be deemed for hire
within the definition of 17 V.S.C. Section 101. To the extent not permissible and to the
extent rights other than copyrights are included, Trico expressly assigns all rights to
copyrights, trademarks, patents, trade secrets or other proprietary rights throughout the
world in such work product to City, free of all liens, claims or encumbrances. Upon
request, Trico shall execute and deliver all documents requested by City to effectuate or
perfect the foregoing and this Agreement.
9.0 MISCELLANEOUS PROVISIONS
9.0 Trico may not assign, transfer, delegate or encumber its interest in or
duties under this Agreement without the prior written consent of City, and any such
assignment shall be void.
9.1 This Agreement may not be orally amended, modified or terminated. This
Agreement shall bind the successors and permitted assigns ofthe respective parties.
9.2 All understandings heretofore had between the parties are merged in this
Agreement, which alone fully and completely expresses their Agreement. This
Agreement shall be construed under the laws of the State of California, and any claims
and causes of action arising under or in connection with this Agreement shall be brought
before a California court of competent jurisdiction.
9.3 If any provision of this Agreement shall be held to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall
in no way be affected or impaired thereby, and such remaining provisions shall remain in
full force and effect. The invalid, illegal or unenforceable provision shall be replaced by a
mutually acceptable provision, which, being valid, legal and enforceable, comes closest
to the intention of the parties underlying the invalid, illegal or unenforceable provision.
9.4 Nothing contained in this Agreement shall be deemed to create a
contractual relationship with or a cause of action in favor of any third party against Trico
or City.
4
9.5 Trico shall comply with all applicable laws, rules and regulations, and
represents to City that it has obtained all licenses necessary to provide the services
required, if any.
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:
CITY OF VERNON
BY:~~
Bruce V. Malkenhorst, City Clerk
GALLIERA, INC. dba TRICO
CONSTRUCTION
BY.e~ /
Typed Name: James A. Bruschera
Title: General Manager
5
EXHIBIT
A
SCHEDULE "A"
SCOPE OF SERVICES
The City of Vernon authorizes Galleria Inc. dba Trico Construction to provide the
following services:
.
.
Construction Project Management Services for various projects as
determined by the City of Vernon (City).
Biomass Projects: Trico shall act as the Construction Project Manager for
the Refined Fuel Oil Processing Plant Facilities being constructed by New
Age Fuel, Inc., with complete oversight authority on behalf of the City
concerning the construction, start-up and operation of the plants.
6
EXHIBIT
B
'c
SCHEDULE "B"
COMPENSATION FOR SERVICES
FLAT FEEIHOURLY SCHEDULE
Flat Fee Schedule is determined per assignment by City of Vernon. The flat fee shall be
a percentage of the gross overall project cost. The flat fee per project shall be on a
sliding scale from 6% to 8% as determined by the City of Vernon.
Other Compensation: In addition to the Flat Fee Schedule, The City may pay Trico for
services on a time and material basis at the following hourly rate:
Principal Project Manager
Senior Project Manager
Project Manager
Safety Manager
Intern Project Manager
Clerical
$ 125/hour
$95/hour
$85/hour
$ 65/hour
$45/hour
$38/hour
The rates are subject to amendment upon agreement between the parties.
The City shall pay Trico's reimbursable expenses (i.e., computer plotting, printing,
postage, project fees, permits, long distance toll charges, Nextel phone bill charges,
mileage @ 50 cents per mile, plane fares, lodging, per diem as apply, and other various
reimbursable expenses. Special Project Management Insurance shall be reimbursable at
its costs depending upon limits of liability as specified by the City.
7