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Resolution No. 8656 . r . .t 't' . -'t. 1 RESOLUTION NO. 8656 2 3 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON APPROVING AND AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES AGREEMENT BY AND BETWEEN THE CITY OF VERNON AND SIEMENS INDUSTRIAL TURBOMACHINERY, INC. FOR COMBUSTION TURBINE GENERATORS AND STEAM TURBINE GENERATOR FOR THE MALBURG GENERATING STATION PROJECT 4 5 6 7 8 9 10 11 12 13 14 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 15 16 17 purchase of supplies and services for the Malburg Project; and WHEREAS, the City has determined that it needs training on the two combustion turbine generators and one steam turbine generator 18 19 20 21 22 23 24 25 26 before operation and commissioning of the Malburg Project begins in April or May of 2005 (hereinafter collectively referred to as the "Turbine Training Services"); and WHEREAS, Siemens Industrial Turbomachinery, Inc. ("Siemens"), submitted a proposal dated December 30, 2004, to provide the Training Services; and WHEREAS, the City has determined that Siemens possesses the technical knowledge and expertise to furnish the Training Services for the Malburg Project; and WHEREAS, on February 2, 2005, the Finance Committee 27 28 considered the recommendation of Bruce V. Malkenhorst, Director of " , . l ~, ~. 1 Finance, dated January 20, 2005, that an agreement with Siemens be 2 approved and executed; and 3 WHEREAS, the City Council of the City of Vernon has 4 determined that, pursuant to the provisions of subsection (a) of 5 Section 2.27 of the Vernon City Code, it is in the public interest and 6 necessity to enter into an agreement with Siemens. 7 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE 8 CITY OF VERNON AS FOLLOWS: 9 SECTION 1: The City Council of the City of Vernon hereby 10 finds and determines that the recitals contained hereinabove are true 11 and correct. 12 SECTION 2: The City Council of the City of Vernon hereby 13 approves the Professional Services Agreement with Siemens, in 14 substantially the same form as the copy which is attached hereto as 15 Exhibit A and incorporated by reference. 16 SECTION 3: The City Council of the City of Vernon hereby 17 authorizes the Mayor to execute said Agreement for, and on behalf of, 18 the City of Vernon and the City Clerk is hereby authorized to attest 19 thereto. 20 SECTION 4: The City Council of the City of Vernon hereby 21 directs the City Clerk, or his designee, to send one fully executed 22 Agreement to: 23 Siemens Industrial Turbomachinery, Inc. Attn. C. Pat Lamb, P.E. 10730 Telge Road Houston, TX 77095 24 25 26 / / / / / / / / / 27 28 - 2 - 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 . . . . . It, .... 1 SECTION 5: The City Clerk of the City of Vernon shall 2 certify to the passage of this resolution, and thereupon and 3 thereafter the same shall be in full force and effect. 4 APPROVED AND ADOPTED this 2nd day of February, 2005. 5 6 >>- ~~. ~ EONIS C. MALB RG, ;:;;:Jar 7 ATTEST: ~/~k-?- BRUCE V. MALKENHORST, City Clerk - 3 - .'. .I 't, ,Xli;" 1 STATE OF CALIFORNIA 2 3 4 5 6 7 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. 8656, 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 2, thereafter was duly signed by the Mayor of the City of 8 2005, and 9 Vernon. 10 11 12 13 (SEAL) 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 /~ /4/~ BRUCE V. MALKENHORST, City Clerk - 4 - EXHIBIT , A . . ~ '. .... PROFESSIONAL SERVICES AGREEMENT THIS 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 2nd day of February, 2005, in the City of Vernon, County of Los Angeles, California BY AND BETWEEN CITY OF VERNON, a municipal corporation, hereinafter referred to as the "City," 4305 Santa Fe Avenue Vernon, California 90058 AND SIEMENS INDUSTRIAL TURBOMACHINERY, INC. hereinafter referred as the "Consultant," RECITALS WHEREAS, the Malburg Generating Station has two combustion turbine generators and one steam turbine generator (collectively the "Generators") which are expected to begin operating during commissioning in April or May of 2005; and WHEREAS, City staff need training on the Generators from the manufacturer and Consultant submitted a proposal to the City for training on the Generators dated December 30,2004 (the "Proposal), a copy of which is attached hereto as Exhibit A and incorporated by reference; and WHEREAS, the Proposal includes a description ofthe services to be performed by Consultant and the attendant costs; and WHEREAS, Consultant has advised the City that it is qualified to perform the training on the Generators and the City desires to obtain the services of Consultant to provide such services. NOW, THEREFORE, IT IS AGREED AS FOLLOWS: 1.0 Scope of Services Consultant shall provide its on site personal training services to operation and maintenance personnel under the general supervision of the Chief Executive Officer of the Light and Power Department and shall include, but not be limited to, Step I-a theoretical course concentrating on basic turbine technology, design and function of the City's Generators, Step 2- Theoretical and practical courses individually composed for different categories of personnel (Operators, Mechanical technicians and Electrical/control technicians) and such other services needed to perform the training 1 .' I .4{1 '. . services as identified in Exhibit A. It is understood and agreed that in the event of a conflict between the Proposal and this Agreement, the terms of the Agreement shall prevail. 2.0 Time of Performance Consultant's services shall commence upon the signing of the Agreement by both parties and shall end when Consultant has completed the work according to the Proposal, unless the Agreement is otherwise terminated or extended upon written agreement of both parties to this Agreement. COilililiiii.i~O. n of the se.rvices to be performed by the Consultant is expected to be no later than days from the issuance of a Purchase Order. 3.0 Contract Price As full and complete compensation to Consultant for the timely, proper and complete performance of all obligations relating to this Agreement, City shall pay Consultant, . subject to the additions and deletions expressly provided for in this Agreement, the Contract Price set forth in Exhibit 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 - Siemens Industrial Turbomachinery, Inc. Attn: C. Pat Lamb, P.E. 10730 Telge Road Houston, TX 77095 City - City of Vernon, California Attn: Bruce V. Malkenhorst, City AdministratOl'lCity Clerk 4305 Santa Fe Avenue Vernon, California 90058 Fax: 323-826-1438 Telephone: 323-583-8811 ext 260 5.0 Law and Arbitration This Agreement shall be governed by the laws of the State of California. The parties agree that any and all disputes arising out of or in relation to this Agreement, including without limitation any action in tort, shall be resolved exclusively, finally and conclusively by arbitration in Los Angeles County, California under the auspices of and pursuant to the rules of the Judicial Arbitration & Mediation Services Inc. (JAMS). All decisions of the arbitrators shall be in writing, and the arbitrators shall provide written 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, Los 2 " ' " i ~ ..... Angeles County. Any and all contracts between Air Cleaning Systems and any subcontractor shall include the same arbitration clause. 6.0 Entire Agreement III III III /II III III III III III /II III This Agreement shall be comprised of these signed business terms (Business Terms), together with Exhibit A - The Proposal; Exhibit B - Compensation and Payment; Exhibit C - Insurance; Exhibit D - General Provisions, and Exhibit E - Change Orders which are all attached. In the event of conflict between this Agreement and any of the exhibits, this Agreement shall prevail. In the event of conflict between exhibits, the exhibits shall be prioritized in the following order: Exhibit D first, then Exhibits C, B, A and E. 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 Agreement. Consultant expressly waives all claims for compensation based upon quantum merit, implied contract or oral contract. Each party to this Agreement 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 Agreement, and that no other agreement, statement or promise not contained in this Agreement or a subsequent amendment or change order shall be valid or binding. No amendment or change in the provisions of this Agreement 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 Agreement, and that such party has been fully authorized to sign this Agreement. 3 " . . "", ~ 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. Consultant: Siemens Industrial Turbomachinery, Inc. Name: Title: Date: Name: Title: Date: City: City of Vernon Name: Leonis C. Malburg, Mayor Date: ATTEST: Bruce V. Malkenhorst, City Clerk APPROVED AS TO FORM: Eric T. Fresch, City Attorney 4 , , . ~.. 1 ". - . . . . . . . EXHIBIT A " " " '. " . SIEMENS City of Vernon Samuel W. Grossman 2715 E. 50" Street Vernon, CA 90058 USA 2004-12-30 Our ref: SITlUSPGElOOO5 Sam, Please find below our offer for Site Personal Training on CTG & STG. Scope of work Training programme General Training gives the customer the ability to operate and maintain the turbine plant in accordance with Siemens Industrial Turbomachinery's (SIT) recommendations. The training is given to the customer's operation and maintenance personnel and is divided into two steps. Step 1 is mainly a theoretical course concentrating on basic turbine technology, design and function of the customer's turbine. Step 2 is theoretical and practical courses individually composed for different categories of personnel(Operators, Mechanical technicians and ElectricaVcontrol technicians.) SE~12 83 FlNSPONG, SWeden Siemens Industrial Tulbomachlnery NJ SE-612 83 FlNSPONG, SY.ecIen Reg. No: 556606-6048 Tel: t46 122 810 00 Fax: +46 12219700 -.IndustriaI-luIbines.sIemens.oom .. " . . " '. .1._ Page 2(7) SIEMENS I Basic Training I I .SWp1"SWp21 In this section we outline the type of training programme that Is offered covering the Gas turbine unit and the Steam turbine unit. All training and associated documentation will be in the English language. It is assumed that the Traln!*,s are quaflfied to a sufficient level to follow the training and to understand gas turbine power plant technology. Scope The training will be conducted in English and is to be carried out during normal working hours, six lessons per day. The training consist of classroom lessons as well as practical exercises. Included in the training for a maximum of 24 persons(specified below) are: * All costs for SIT's personnel * All costs for training manuals All other costs for Cllenfs personnel, to be bome by the Client On site the Client is to provide a suitable classroom equipped with a blackboardlwhiteboard and an over-head projector. " " SIEMENS ."'. '. .(,. Page 3(7) A unit is needed for plant visits/studies and fault-finding exercises To cany out exercises in starting and stopping a unit has to be available for such mode of operation. Personnel Categories The staff to be trained is split up in cflfferent categories to follow the training programme below. To get the best out of the training the numbers of different categories should be limited as follows. Category Operating staff Shift Engineers Operation technicians Mech. Maintenance Engineer Mechanical technicians Elec. Maintenance Engineer EC&I technicians Max No 4 10 1 4 1 4 .' " SIEMENS '. '. ~.... . Course programme Step 1 Basic course for all categories Duration: 5 days Day Item 1-3 Maximum 24 participants 1 Introduction * Course notes and course documentation 2 Gas Turbine * The Gas Turbine, design and function · Auxiliary systems, design and function 4-5 3 . Step 2 Course 1 Steam Turbine · The Steam Turbine, design and function · Auxiliary systems, design and function Course for Mechanical technicians Page 4(7) .' " '. .~., . Page 5(7) SIEMENS Duration: 2 days Maximum 6 participants Day Item 1-2 1 Mechanical Maintenance * Routine maintenance Gas Turbine & Steam Turbine * Compressor washing * Fuel handling * Inspections * Overhauls Course 2 Course for EC&I technicians Duration: .. days Maximum 6 participants Day Item 1 1 Electrical systems * Location of electrical equipment and presentation of circuit diagrams * Routine maintenance * Inspections * Overhauls 2 - 3 2 Control system * Control system Hardware * Control system software -' : " SIEMENS 4 Course 3 '. " Page 6(7) ... Turbine governor * Human-Machine Interface 3 Trouble shooting * Trouble shooting" theoretical * Trouble shooting practices Course for Operation tecttnicians Duration: 3 days Day Item 1-3 Maximum 14 participants 1 Operation * Operation. theoretical * Human-Machine Interface * Operation practices " " . ' ~ , Page 7(1) SIEMENS Delivery The offered training will be perfonned on site In time for your planned start-up at site. Price and payment The additional price for training as described in the Scope of Work section above is $ 163 000*. Payment is due against invoice 30 days after confinned order. rrhe price is based on USD/SEK forward currency exchange rate of 1 USD = 6,61 SEK. Due to today's volatility on the currency exchange market, we reserve the right to adjust the price, if changes should occur before effective contract date. Conditions Same general conditions and warranties as for the original contracts will apply. . Validity This Quotation is valid until Jan 31, 2005. Lars Widerstedt Siemens Industrial Turbomachlnery AB C C.Pat lamb, P.E. Siemens Industrial Turbomachinery Inc. .' ~.. .&~ .. EXHIBIT B .' " '. '. EXHIBIT B Compensation and Payment 1.0 Contract Price. 1.1 Not to Exceed Value As Compensation for Consultant's performance of the services in accordance with the terms and conditions of this Agreement, City shall pay Consultant a maximum Contract Price ( Contract Price) of One Hundred Sixty-Three Thousand Dollars and No Cents ($163,000.00). The actual amount will be based on the time and materials required to perform the services, billed in accordance with Consultant's rates identified in the Proposal attached as Exhibit A. 1.2 Entire Compensation Except as provided below in Exhibit D, the Contract Price is full and complete compensation, and constitutes the entire compensation due Consultant for the services and any and all of Consultant's .obligations hereunder, regardless of difficulty, unforeseen circumstances, hours worked or equipment, materials or personnel required. The Contract Price includes without limitation com ensation for all ersonnel and trainin manuals tract Price set forth above and the rates set forth in any attachment inco orated into this exhibit are not sub' ect to escalation for any reaso . The Contract Price shall only be adjusted by a formal, written Change Order or amendment to this Agreement. 2.0 Compensation for Changes The compensation due Consultant, or the credit due City, for "Changes" (as that term is defined in Exhibit D) may not be established verbally, and shall be established in a written change order signed by City as described in Exhibit D. Compensation adjustments in each such change order shall be established by one or more ofthe following bases, as determined by City: (a) a lump sum price to be negotiated between, the parties; or (b) work unit rates as set forth in Exhibit A, 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 Ci for a chan e shall not be subject to adjustment for any reason, 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 Exhibit D. B-1 : ". ", Payment of the invoices shall be made after acceptance and approval by City within 30 days of receipt. Consultant shall be responsible for paying any subcontractors used in the performance of this Agreement. Subcontractors shall not bill the City directly. - End of Exhibit B - B-2 . ~ Il.. .. ~ .. . .. ." EXHIBIT C a. ". " EXHIBIT 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 asset 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, including but not limited to; Certificates of Insurance or, upon request, certified copies of the insurance policies evidencing that the coverages and policy endorsements required under this Agr~ment, 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. Consultant and its Sub-Consultant(s), if any, shall maintain in effect the following minimum insurance coverages on an Occurrence Form Policy: A. Workers Compensation within the statutory limits and, if necessary, Longshoremen and Harbor Workers and Jones Act, including occupational illness or disease coverage in accordance with the laws of the nation, state, territory, or province exercising jurisdiction over the Employees. Workers Compensation and Employers 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 by 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. E. Provide the City of Vernon thirty (30) days written notice of cancellation. - End of Exhibit C - C - 1 '. ~ .. .. . . ~ . EXHIBIT D _.. 410. " EXHIBIT 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 Exhibit D is attached. The Agreement constitutes the entire agreement between the parties relating to its subject matter. b. "Consultant" shall mean Austin-Foust Associates, Inc. and where applicable, its affiliated companies, directors, officers, employees, agents and representatives. c. "Contract Documents" shall include any inquiry, invitation to bid, or proposal which may have, but not necessarily, preceded execution of the Agreement, the General Provisions and all exhibits and schedules attached to the Agreement and all plans and specifications identified in the Contract Documents. d. "Contract Price" shall have the meaning given it in 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" shall mean these General Conditions of this Exhibit D. g. "Owner" shall mean City of Vernon, California, and where applicable, their affiliated companies, directors, officers, employees, agents, and representatives. h. "Premises" shall mean the physical premises under City's and/or Owner's control or ownership where work hereunder is to be performed. i. "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 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; D -1 -.. -. " (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 require Consultant to agree to refrain from disclosing such information to others. j. "Sub-Consultant" shall mean any first or lower-tier Sub-Consultant and its employees, representatives, agents, Sub-Consultants or other personnel who have been approved in the manner required by the Agreement. k. "Work" or "Services" shall mean the work 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. 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 At all times while Work is being performed on the Premises each party shall be represented thereon by a designated representative. 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 this Agreement and the attachments thereto. 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 D-2 -. ~. duration and total compensation of Consultant's work. Changes in the scope of work, or duties and obligations, shall be authorized only by the City. 2.2 Consultant's Responsibilities Unless otherwise specified in the Agreement, Consultant shall perform the duties as outlined in the Agreement between the Consultant and the City. 2.3 Work Injury The treatment and care of injuries sustained by Consultant's employees, Sub- Consultants, representatives or other personnel 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 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 Expenses may only be billed if advance written approval has been obtained from the City Administrator. 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, or the prior calendar month's completed work. City will make payment to Consultant within thirty (30) days after acceptance and approval of the invoice received 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 D-3 .. 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 include: (a) payroll record accounting for the total time distribution of the Consultant's employees working full or part time onthe Work (to permit tracing to payrolls and related tax returns) as well as canceled checks or signed receipts for payroll payments in cash; (b) invoices for purchases, receiving and issuing documents, and all the other unit- inventory records for the Consultant's stores stock or capital items; (c) paid invoices and canceled checks for material purchased and for the Sub-Consultant's and any other third-parties' charges; and (d) any other documentation City deems necessary to support costs and charges under this Agreement. 3.5 Corporate Conduct Consultant, its emp~oyees, 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 fifteen (15) days 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. 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 for those services performed prior to the date of delivery of the termination notice, plus compensation for (i) necessary work performed during the notice period and authorized in the termination notice, and (ii) all costs reasonably and necessarily incurred by Consultant directly attributable to termination which could not reasonably have been avoided and for which Consultant is not otherwise compensated that are incurred through the date of the termination and in effectuating the termination (the "Termination Expenses"). Termination Expenses shall not include lost profits, lost opportunities, consequential damages, or the like. 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 D-4 -.\ '. portion of the Work or any other damages because of such termination or reduction. 5.0 General provisions 5.1 Independent Consultant Consultant shall be an independent Consultant with respect to all the services to be performed hereunder and shall have responsibility for and control over the details and means for performing the Work. Neither Consultant nor any of those employed in furnishing such services shall be deemed the agents, representatives, employees or servants of City. Consultant shall have complete and sole control over 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 Insurance Consultant agrees to provide insurance in the amounts and forms specified in Exhibit C, which is attached hereto and incorporated by reference. Consultant shall submit to the City documentation indicating compliance with these minimum requirements no less than one (1) day prior to the beginning of performance under this Agreement. Consultant shall not commence performance of its work under this Agreement until the above insurance has been obtained and proof of insurance has been filed with and approved by the City. Consultant shall not permit a subcontractor or vendor to perform work on City premises unless and until a certificate ofinsurance is obtained showing that such subcontractor or vendor has worker's compensation coverage. Consultant employs subcontractors as part of the services rendered, 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. 5.3 Standard of Care Consultant agrees that all services provided will be conducted by the principal and competent staff members, if any, under the supervision of the principal, and that services will be performed and rendered diligently. Consultant represents that it has, or shall secure, at its oWn expense, all personnel required to perform Consultant's services under this Agreement, but at all times shall be responsible for the services of such personnel. Consultant may not employ any sub- consultants without the prior written approval of the City. 5.4 Indemnification Consultant's Indemnity. To the fullest extent permitted by law, Consultant shall defend, indemnify and hold harmless City and its elected officials, officers, agents and employees from all claims, suits, actions, demands, damages, liabilities, D- 5 ". " expenses, judgments, settlements and penalties, losses, fines, and all costs and expenses incurred in connection therewith, including reasonable attorneys' fees and all costs of defense, arising out of or attributable to the negligent or wrongful acts of Consultant or its employees or agents under this Agreement, except to the extent arising from or caused by the sole negligence or willful misconduct of the City, its officers, agents or employees. The terms of this indemnity shall survive the termination of this Agreement. The obligations in this Paragraph are in addition to Consultant's duty to provide insurance and shall not be limited by any limitation on the amount or type of insurance coverage carried by Consultant. Indemnity Process. The City shall notify Consultant in writing of any suits, claims or demands covered by this indemnity. Promptly after receipt of such notice, Consultant shall assume the defense of such claim with counsel reasonably satisfactory to City. If Consultant fails, within a reasonable time after receipt of such notice, to assume the defense with counsel reasonably satisfactory to City, or if, in the reasonable judgment of City, a direct or indirect conflict of interest exists between the parties with respect to the claim, or if in the sole judgment of City the assumption and conduct of the defense by Consultant would materially and adversely affect City in any manner or prejudice its ability to conduct a successful defense, then the City shall have the right to undertake the defense, compromise and settlement of such claim for the account and at the expense of Consultant. Notwithstanding the above, if the City in its sole discretion so elects, City may also participate in the defense of such actions by employing counsel at its expense, without waiving the City's obligations to indemnify or defend. Consultant shall not settle or compromise any claim or consent to the entry of any judgment without the prior written consent of the City and without an unconditional release of all liability by each claimant or plaintiff to the City. 5.5 Treatment of Confidential and Proprietary Information a. For ten years after the effective date of this Agreement, 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 ofthe Work or request by City all such documents and copIes. c. Except as expressly permitted by prior written consent of the City, Consultant and/or its subcontractors shall not disclose, permit the disclosure of, release, D-6 " '. ... disseminate, or transfer, whether orally or by any other means, any part of such Confidential Information to any other person or entity, without the express prior written consent of an authorized representative of the City. Consultant and/or its subcontractors 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 Work to be performed pursuant to this Agreement. Consultant hereby agrees that such Confidential Information and any documents provided may be used by Consultant and/or its subcontractors only as authorized by the City. Consultant shall include a provision in its agreements with subcontractors that binds the subcontractors to this non-disclosure requirement. 5.6 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. 5.7 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 ongm. Consultant shall make timely payment of all employment taxes and of all social security and other contributions of every kind required to be made with respect to or measure by the wages and salaries of persons employed by Consultant. Consultant shall indemnify City and Owner against, and hold City harmless from, any liability or loss including liability or loss from fines or penalties arising out of Consultant's failure to perform the obligations imposed upon it by this section. 5.8 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. 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. D-7 '. .. : 5.9 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. 5.10 Applicable Law This Agreement shall be governed by and construed under the laws of the state of California. . 5.11 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. .5.12 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 confirmed by copy thereof sent by registered or certified mail shall be effective upon the date of such facsimile, telegraph, telex or cable. Notices sent in any other manner shall be effective only if and when received. 5.13 Entire Agreement The Agreement, and the attached Exhibits, constitute the entire Agreement by the parties and it may not be altered, amended or changed without a duly executed document by all parties. 5.14 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. 5.15 Changes in the Work City may make "Changes" by increasing, reducing or deviating from the requirements of the scope of Work. A form of Change Orderis set forth in Exhibit E attached hereto and incorporated by reference. D-8 ., .. : . . '. 5.16 Forum Any dispute related to this Agreement shall be adjudicated in a state court serving the County of Los Angeles, California. 5.17 Force Majeure Neither party shall be considered to be in default in any of its obligations under this Agreement when a failure of performance shall be due to an uncontrollable force. The term "uncontrollable force" shall mean any cause beyond the control of the party affected, including, but not restricted to, flood, earthquake, storm, fire, lightening, epidemic, war, riot, civil disturbance or disobedience, federal, state, or municipal action, statute, ordinance, or regulation, embargoes of the United States Government or any other government, which by exercise of due diligence such party could not reasonably have been expected to avoid and by exercise of due diligence has been unable to overcome. Either party rendered unable to fulfill any of its obligations under this Agreement by reason of an uncontrollable force shall give written notice within five (5) business days of such fact to the other party and shall exercise due diligence to remove such inability with all reasonable dispatch. - End of Exhibit D - D-9 .. ;# . '.' ~ .... ..... .' . . . . EXHIBIT E ... 1, \ . . . .' . . ExmBIT E Form Chan2:e Order CHANGE Contract Number: Change Number: The requirements of the above designated Agreement 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 (Siemens Industrial Turbomachinery, Inc. City (City of Vernon, California) By By Date Date E - 1 .. --. 'J " ' .. .... .. " .. . , " ~~ ; . .. INSTRUCTIONS TO CONSULTANT Contract Number: Instruction to Consultant Number: Date: Specific Instructions to Consultant: In accordance with the Terms and Conditions of the Agreement, the City classifies these instructions as: _ Supplementary instructions, not involving a Change (Should these instructions be, in the opinion of Consultant, a "Change", written notice thereof must be 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 adjustments in contract compensation, if any, refer to the Changes Sections ofthe Agreement. City Representative Date Please acknowledge receipt ofthis 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 - End of Exhibit E - E-2 CITY COUNCIL LEONIS C. MALBURG Mayor JOHN KARNS Karns & Karabian General Counsel THOMAS A. YBARRA Mayor Pro-Tern WM. "BILL" DAVIS Councilman H. "LARRY" GONZALES Councilman W. MICHAEL McCORMICK Councilman BRUCE V. MALKENHORST City Administrator I City Clerk Chief Executive Officer of Light & Power ERIC T. FRESCH City Attorney KEVIN WILSON Director of Community Services & Water STEVEN E. PARKER Fire Chief SOL BENUDIZ Police Chief LE~J.P()ZZEBON Director of Environmental Health CITY HALL 4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058 TELEPHONE (323) 583-8811 RORY BURNElT Gursey, Schneider & Co. LLP City Accountant March I, 2005 Siemens Industrial Turbomachinery, Inc. Attn: Pat Lamb, P.E. 10730 Telge Road Houston, TX 77095 Re: Professional Services Agreement Dear Pat Lamb: In accordance with Section 6.0 of said agreement, you are to furnish the City with proof of insurance as set forth in the Insurance Schedule, Exhibit "C" of the same. Please submit your insurance documents to Joan Francone, Risk Manager, for review and approval. Upon approval of said documentation, this office will forward to you a fully executed duplicate original agreement. If you have any questions, please contact Joan Francone at 323/583- 8811 ext. 322. Deputy City Clerk NGjke cc: Joan Francone Eric Fresch Manuel Garcia Resolution No. Agreement File 8656\ No. 05-017 "Exclusively Industrial" OS-Of? CITY COUNCIL LEONIS C. MALBURG Mayor JOHN KARNS Karns & Karabian General Counsel THOMAS A. YBARRA Mayor Pro-Tern WM. "BILL" DAVIS Councilman H. "LARRY" GONZALES Councilman W. MICHAEL McCORMICK Councilman KEVIN WILSON Director of Community Services & Water STEVEN E. PARKER Fire Chief SOL BENUDIZ Police Chief BRUCE V. MALKENHORST City Administrator/City Clerk Chief Executive Officer of Light & Power ERIC T. FRESCH City Attorney LEWIS J. POZZEBON Director of Environmental Health CITY HALL 4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058 TELEPHONE (323) 583-8811 RORY BURNETT Gursey, Schneider & Co. LLP City Accountant May 17, 2005 a~((~~) rg)\~l ....:::::./ ,....:::-J ,.J U VIA Federal Express Mr. C. Pat Lamb, P.E. Siemens Industrial Turbomachinery, Inc. 10730 Telge Road Houston, TX 77095 Re: Professional Services Agreement Dear Mr. Lamb: Enclosed please find two duplicate originals of the aforementioned Agreement which need to be signed by the appropriate parties and returned to the City, to the attention of Judy Lehr, Legal Department, by Tuesday morning, May 24, 2005. The Agreement contains terms that are consistent with the Proposal dated December 30, 2004. Once the originals are executed by the City, one fully .executed original will be returned to you for your files. Please refer to the enclosed ~City of Vernon Signature Requirements for City Agreements" and comply with the requirements set forth for your company. Thank you for your cooperation regarding this matter. jl Enclosures cc: Ms. Nelly Giron, Deputy City Clerk (w/o Encls.) J~~ ,~u~ yours, d . ~~. UCh~ Chief Deput~torneY "Exclusively Industrial" THOMAS A. YBARRA Mayor Pro-Tern WM. "BILL" DAVIS Councilman ~~ Ii V JOHN KARNS Karns & Karabian General Counsel CITY COUNCIL LEONIS C. MALBURG Mayor KEVIN WILSON Director of Community Services & Water H. "LARRY" GONZALES Councilman W. MICHAEL McCORMICK Councilman BRUCE V. MALKENHORST City Administrator / City Clerk Chief Executive Officer of Light & Power ERIC T. FRESCH City Attorney STEVEN E. PARKER Fire Chief SOL BENUDIZ Police Chief LEWIS J. POZZEBON Director of Environmental Health CITY HALL 4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058 TELEPHONE (323) 583-8811 RORY BURNETT Gursey, Schneider & Co. LLP City Accountant January 20, 2005 Honorable Members: ~, \l., ~ ,)..V~ ~ ~~ ~ ~~~,f Finance Committee: City of Vernon The training for operation and maintenance personnel for the Gas and Steam Turbines at the Malburg Generating Station is necessary. This has been reviewed by the City Attorney and it is hereby recommended that an agreement be entered with Siemens for a three-week training process at an amount of $163,000.00, subject to the currency exchange rate. Very truly yours, ~/~ Bruce V. Malkenhorst Director of Finance BVM:ng "Exclusively Industrial" w CITY ATIORNEY'S OFFICE mTE~OFnCE~MORANDUM DATE: January 17, 2005 FROM: Bruce V. Malkenhorst, City Administr;;rzrCi5Y Eric T. Fresch, City Attorney ~ ~ MGS Training - Siemens - CTG and STG Clerk TO: SUBJECT: I recommend the City of Vernon enter into an agreement with Siemens for training on the Gas Turbine (GT) and Steam Turbine (ST) in the amount of $163,000. Attached is Siemens' proposal along with Manuel Garcia's memo dated January 14, 2005. I recommend your authorization to proceed with the training process; however, Manuel Garcia will continue to work with Siemens in an attempt to negotiate a lower price for the training. I look forward to discussing this matter with you at your earliest convenience. ETF:ah Attachment c: Manuel G. Garcia INTEROFFICE MEMORANDUM . ' Light & Power Department - Operations Division DATE: 1/14/05 TO: Eric T. Fresch, City Attorney FROM: Manuel G.Garcia, Generation Operations Manager P. SUBJECT: MGS Training - Siemens - CTG and STG The MGS has three large components, the Gas Turbines (GT), the Heat Recovery Steam Generator (HRSG) and the Steam Turbine (ST). The City of Vernon has contracted for manufacturer training on the HRSG but we have not made arrangements for manufacturer training on the GT or ST. We expect to begin operating this equipment during commissioning in Apri1lMay. From start to finish the training is a three-week process with as many as 24 students in one session. We expect to begin the training sometime in May 2005 as units have to be available for the "hands-on" components. Siemens has offered to provide the training to the various levels of personnel. . . from operators, mechanics and control techs.. . for a price of $163,000. Subject to currency exchange rate. After significant analysis, 1 do not see how we can avoid procuring the training. Therefore, I recommend that the City of Vemon enter into agreement with Siemens for the training. Although, 1 recommend that we start the process...1 intent to continue to work on getting Siemens to come down on the price as it is steep. Attached you will find Siemens' proposal. Please call me if you have any questions.