Resolution No. 8657
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RESOLUTION NO. 8657
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A RESOLUTION OF THE CITY ~OUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION OF A
PROFESSIONAL SERVICES AGREEMENT BY AND BETWEEN THE
CITY OF VERNON AND ENERTECH CONSULTANTS OF SANTA
CLARA COUNTY, INC. FOR THE MALBURG GENERATING
STATION PROJECT
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8 WHEREAS, the City of Vernon ("City") is constructing a 134
9 MW Combined Cycle Power Plant, the Malburg Generating Station (the
10 "Malburg Project"), for the purpose of installing additional
11 generating capacit~ that will yield an efficient, cost-effective, and
12 reliable source of electric generation to the City's inhabitants; and
13 WHEREAS, on July 16, 2003, the City Council of the City of
14 Vernon adopted Resolution No. 8252 with the intention of expediting the
15 purchase of supplies and services for the Malburg Project; and
16 WHEREAS, the City has determined that it needs the services
17 of a firm to provide an assessment of the 60 Hz power-frequency
18 electric and magnetic field strengths associated with the Malburg
19 Project at representative locations (hereinafter collectively referred
20 to as the "EMF Assessment"); and
21 WHEREAS, Enertech Consultants of Santa Clara County, Inc.,
22 dba Enertech Consultants ("Enertech"), submitted a proposal dated
23 January 5, 2005, to provide the EMF Assessment; and
24 WHEREAS, the City has determined that Enertech possesses the
25 technical knowledge and expertise to perform the EMF Assessment for the
26 Malburg Project; and
27 WHEREAS, on February 2, 2005, the Finance Committee
28 considered the recommendation of Bruce V. Malkenhorst, Director of
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1 Finance, dated January 20, 2005, that an agreement with Enertech 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 Enertech.
7 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
8 CITY OF VERNON AS FOLLOWS:
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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.
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SECTION 2:
The City Council of the City of Vernon hereby
13 approves the Professional Services Agreement with Enertech, in
14 substantially the same form as the copy which is attached hereto as
15 Exhibit A and incorporated by reference.
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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.
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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:
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Enertech Consultants
Attn. Nancy Hooper, Contracts Administrator
300 Orchard City Drive, Suite #132
Campbell, CA 95008
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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.
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~ LEONIS C. MALB G, Ma or
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ATTEST:
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11 BRUCE V. MALKENHORST, City Clerk
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1 STATE OF CALIFORNIA
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4 I, BRUCE V. MALKENHORST, City Clerk of the City of Vernon, do
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COUNTY OF LOS ANGELES
5 hereby certify that the foregoing Resolution, being Resolution No.
6 8657, was duly adopted by the City Council of the City of Vernon at a
7 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.
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BRUCE V. MALKENHORST, City Clerk
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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
ENERTECHCONSULTANTS OF SANTA
CLARA COUNTY, INC., dba ENERTECH
CONSULTANTS, hereinafter referred as
the "Consultant,"
300 Orchard City Drive, Suite #132
Campbell, CA 95008
RECITALS
WHEREAS, the City is constructing the Malburg Generating Station Combined
Cycle Power Plant at 2715 E. 50th Street in the City of Vernon (the "Malburg Project") for
purposes of installing additional generating capacity; and
WHEREAS, the City has determined that it is in the best interest of the Malburg
Project that the City retain the services of a firm to provide the City with an assessment of the 60
Hz power-frequency electric and magnetic field strengths associated with the Malburg Project at
representative locations (collectively, the "EMF Assessment") for the benefit of the Malburg
Project; and
WHEREAS, Consultant has prepared a proposal dated January 5,2005, for the
services, instrumentation, software and materials necessary for the EMF Assessment, a copy of
which is attached hereto as Exhibit A and incorporated by this reference (the "Proposal"); and
WHEREAS, Consultant represents that it is qualified and capable of furnishing
the labor, materials and expertise necessary to perform the services that the City requires, as set
forth in this Agreement, the Proposal, and Schedule A attached to the Proposal, and is willing to
do so on the terms and conditions set forth below; and
WHEREAS, the EMF Assessment has been competitively bid, and Consultant's
cost proposal is acceptable to the City; and
WHEREAS, the City desires to enter into an agreement with Consultant to
provide the EMF Assessment on a time and materials basis as defined in the terms and
conditions set forth below.
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NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1.0 Scope of Services
Consultant shall provide its EMF Assessment services under the general supervision of
the Chief Executive Officer of the Light and Power Department and shall include, but not
be limited to, Task I-Initial EMF Site Survey, Task 2-EMF Pre-Operation Condition
Assessment (Pre-Operation EMF Survey) and Task 3-EMF Post-Operation Conditions
Assessment (Post-Operation EMF Survey) and such other services needed to perform the
EMF Assessment 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. Completion of the services 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 - Enertech Consultants
of Santa Clara County, Inc.
Attn: Nancy Hooper, Contracts Administrator
300 Orchard City Drive, Suite #132
Campbell, CA 95008 .
City - City of Vernon, California
Attn: Bruce V. Malkenhorst, City
Administrator/City Clerk
4305 Santa Fe Avenue
Vernon, California 90058
Fax: (408) 866-7279
Telephone: (408) 866-7266
Fax:
Telephone:
323-826-1438
323-583-8811 ext 260
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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 ofthe Judicial Arbitration & Mediation Services Inc. (JAMS). Each
party will select an arbitrator. Those two arbitrators will then select a third. The three
member panel will make the final decision. 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 Angeles County. Any and
all contracts between Consultant and any subcontractor related to this Agreement shall
include the same arbitration clause.
6.0 Entire Agreement
This Agreement shall be comprised of these signed business terms (Business Terms),
together with Exhibit A - The Proposal together with Schedule A; 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.
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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:
Enertech Consultants of Santa Clara
County, Inc., dba Enertech Consultants
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
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EXHIBIT
A
Janumy 5, 2005
Mr. Carlos Fandino
Malburg Generating Station
City ofVemon
2715 East 50th Street
Vernon, CA 90058
ENERTECH Consultants
300 0rd1ard Oty Drive 17 Main Street
Suite '132 p.o. Box 770
Campben, CA 95008 Lee, MA 01238
Voice: (408) 866-7266 Voice: (413) 243-2800
fax: (408) 866-7279 Fax: (413) 243-4620
Web Site: hUyJIwww.euertecb.net
Dear Mr. Fandino:
In response to your request, Enertech bas prepared this proposal which out1ines the power-frequeocy EMF assessment
seJVia:s to be performed for the Malburg Generating Station in Vernon, California We have the experienced personneI,
insIrumentation, and software capability to provide you with an assessment of the 60 Hz power.fiequency electric and
magnetic field strengths associated with the generating station at representative locations.
I have prepared this statement of w<1Ik and cost estitrulte based upon the following tasks :
1) Initial EMF Site Survey
A technician from Enertech would travel to Vernon to perform power frequency (60 Hertz) electric and
magnetic field measurements at the Malburg Generating Station. Electric and magnetic fieldmeastJl"elIlents
would be performed in the area of the plant site and in the immediate surrounding local area where regular
pedestrian or worker traffic.is presenL Measurements would be performed at a height of 1 meter (3.28 feet)
above ground level in accordance with IEEE Standard #644-1994 (IEEE Standard Procedures for
Measurement of Power Frequency Electric and Magnetic Fields from AC Power Lines). If applO})fiate, lateral
profile measurements would be performed to adequately characterize the electric and magnetic field levels as a
function of distance away from an electric facility. Locations would also be surveyed and identified for possible
subsequent 24-hour monitoring. Upon completion, a draft measurement report would be prepared which
summarizes the results of the initial EMF site survey and provide recommendations for development of a CEC
assessment plan.
EMDEX II electric and magnetic field recording meters will be used to perform power-frequency electric and
magnetic field measurements. All EMDEX II meters will be calibrated prior to perfonning field measurements
in accordance with IEEE Standards.
Magnetic. fields from power lines will V3IY in direct proportion to the loading on the power line. Line loading
can V3IY during the day, from day to day, and from season to season. Monitoring the power line loading at the
time of measurements should be performed for comparison with subsequent site surveys.
2) EMF Pre-Operation .Condition Assessment
Once the CEC site assessment plan has been formalized and approved, a technician from Enertech would
again travel to Vernon to perform power frequency (60 Hertz) electric and magnetic field measurements at the
Malburg Generating Station in accordance with the approved plan. Electric and Jrulenetic field measurements
would be performed at specified locations in accordance with IEEE Standard #644-1994. If requested, 24-hour
baseline measurements would be collected at selected locations where the measurement equipment can be
safely secured. EMDEX II electric and magnetic field recording meters will again be used to perform power-
frequency electric and magnetic field measurements. All EMDEX II meters will be calibrated prior to
performing field measurements in accordance with IEEE Standards. Upon completion, a pre-operational EMF
measurement report would be prepared for review by COV and submission to the CEC. Monitoring the power
line loading at the time of measurements should again be peIformed for comparison with previous and
subsequent site SUlVeys.
3) EMF .Post-Operation Condition Assessment
Once the Malburg Generating Station construction has been completed and is ready for operation (assumed in
2005), a post-operation assessment plan would be performed. Thepost-operation measurement assessment
would follow the same fonnat as the previous CEC-approved pre-operation site assessment plan. A technician
from Enertech would again travel to Vernon to perform power frequency (60 Hertz) electric and magnetic field
measurements at the Malburg Generating Station in accordance with the approved plan. Electric and magnetic
field measurements would be performed at specified locations in accordance with IEEE Standard 11644-1994.
If requested, 24-hour baseline measurements would be collected at selected locations where the measurement
equipment can be safely secured. EMDEX n electric and magnetic field recording meters will again be used to
perform power-frequency electric and magnetic field measurements. All EMDEX n meters will be calibrated
prior to performing field measurements. in accordance with IEEE Standards. Upon completion, a post-
operational EMF measurement report would be prepared fot review by COV and submission to the CEC.
Monitoring the power line loading at the time of measurements should again be petformed for comparison
with previous site surveys.
The pre- and post-operation technical assessment reports would include a general description of power frequency
electric and magnetic. fields. the Malburg Generating Station site description. and a summary of the electric and
magnetic fieJd measurement results in both tabular and graphical formats. Tables of typical appliance field levels
and other related information would be provided for comparison. In addition, a section of the report could include a
discussion on the Jack of state and federal magnetic field health standards and of existing recommendations by the
ACGrn and ICNlRP.
The total cost estimate to perform aD tI1rtt tasks would be $15,500. The cost estimate to perform the initial EMF site
smveywould be $3.900. while the cost estimate to perform the pre- and post-operntion EMF site smvey would be $5.800
for each survey ($11,600 for both site surveys). Cost estimates for the pre- and post-operation EMF site smveysare based
upon an estimated nro-day CEC-approved scope of \Wlk and could wry, depending upon the amount of IIIf'aSUreIIIen
WOIkrequired (atljusted eithel" upwards for additional WOIk or downwards for Jess WOIk). Cost P.!:fimates are based upon
the measurement lroIk being completed in 2005. Details reganfing our cost P.!:fimates are attached. If you elect to perform
this work. we wiD require written authorization and either full prepayment or a signed oontract in order to begin the WOJ:k.
Once we have been authorized. to proceed. we would schedule a convenient time with you to perform the initial site
smvey. Cost estimates are valid for 9O-days from m:eipt of this proposal.
If you have any questions. please feeJfiee to contact me. We appreciate the opportunity to WOIk with you on this new
project.
SincereIv Yours.
~~4~
R Christopher Hooper
cc: Nancy Hooper. Enertech Contracts Administrator
Malburg Genberating Station: Initial EMF Assessment Proposal
Task 1 -Initial EMF Survey HoopeI Ramirez Admin Total
Preparations 2 2 2
Travelto Vernon, CA 3
EIecbic and Magnetic Field Measurements 8
Travel to San Jose. CA 3
Data Analysis 2 4
Prepare Report 4 8 2
Subtotal- Hours 8 28 4
Hourly Ratll ~ ---EL $50
SUbtotd - Labor $920 52.100 S200 $3,220
Expenses
Airfare (Round Trip) 5250
Hotel (One Night) $110
Car Rental (One Day) $100
Per Diem (One Day) $35
Airport parking (One Day) $35
Miscellaneous Expell$eS (Telephone. FAX, etc.) $150
Subtotal- Expenses ssao $680
Task 1 - Total Cost Estimate: $3,900
MalbUrg Genberating Station : EMF Pre..operation Condition Assessment
Task 2 - Pre-Operation EMF Survey Hooper Ramirez Admin Total
Preparations 2 2 2
Travel to Vernon. CA 3
Electric and Magnetic Field Measurements 16
Travel to San Jose, CA 3
Data Analysis 4 8
Prepare Report 8 8 2
Subtotal - Hours 14 40 4
Hourly Ratll $115 $75 $50
Subtotal - Labor $1,610 $3,000 $200 14,810
Expenses
Airfare (Round Trip) $250
Hotel (Two Nights) $225
Car Rental (Two Days) $200
Per Diem (Two Days) $70
Airport Parking (Two Days) $70
Miscellaneous Expenses (Telephone, FAX, etc.) $175
Subtotal-Expenses $990 S990
Task 2 - Total Cost Estimate: $5,800
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Malburg Genberating Station: EMF Post-Operation Condition Assessment
Task 3 - Post-Operation EMF Survey Hooper Ramirez Admin Total
Preparations 2 2 2
Travel to Vernon, CA 3
Electric and Magnetic Field Measuremerts 16
Travel to San Jose, CA 3
Data Analysis 4 8
prepare Report 8 8 2
Subtotal- Hours 14 40 4
Hourly Rate $115 $75 $50
Subtotal - Labor $1,610 $3,000 $200 $4,810
Expenses
. Airfare (ROI6ld Trip) $250
Hotel (Two Nights) $225
Car Rental (Two Days) $200
Per Diem (Two Days) $70
Airport Parking (Two Da~) $70
Miscellaneous Expenses (Telephone, FAX. etc.) $175
SUbtotal- Expenses $990 $980
Task 3 - Total Cost Estimate: $5,800
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2005
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SCHEDULE A
ENERTECH Consultants
3OOOn:hatd Oty Drive 17 Main Stnlet
~fl32 P.o.1IOlc7lO
Cantpbell,CA9S008 Lee. MA 01238
Voial: (4OB) 866-'12!66 Voial: (413) 2G-2800
Fax: (4011I-'7%19 Fax: (413) 243-4620
Web., .....JIwww.AllllOltechnot
Schedule For Professional Services
1. The professional services of ENERlECH Consultants of Santa Clara County, Inc., (d.b.a Enertech
Consultants) hereinafter referred to as ETe, are performed according to the following rate schedule. This
Schedule For Professional Services shall be incorporated into aD contracts with ETC andsbaJI be referenced in
aD contracts~ Professional services are performed for the Client on an hourly basis for aD time rendered to the
project, including, but not limited to, project scoping by professional, technical, and administrative personnel.
ETC may elect to perform "lump sum" jobs, in which case, only the single or lump sum amount is charged. All
invoice charges are based on and are payable in U.S. dollars.
These rates are ETCs minimum standard commercial consulting/service rates:
HOURLY INVOICE RATE SCHEDULE
President
VICe President
Design Manager
Senior Technical Staff
Technical Staffl
Technical Staff II
Technical StaffID
Senior Administrative Staff
Administrative Staff
Clerical
General
Consulting
$ 230.00
180.00
125~00
95.00 - 120.00
70.00 - 95.00
60.00 - 70.00
45.00- 65.00
95.00
65.00 - 95.00
65.00
Short Term: Hourly rates will be increased 200AJ for all projects involving either rapid startup or short notice that
require rescheduling of existing commitments or other unusual mobilization efforts. This premium
will also apply to work specifically requested on holidays or weekends.
2. Tune required for ETC personnel to travel between ETCs office and the site, (or any other destination
applicable to the work), is charged in accordance with the rate schedule above.
3. All ordinary expenses incurred during the performance of the work are charged at direct cost to the project.
Such expenses include, but are not limited to, lodgings, travel, telephone, express mail service, reproductions,
and so forth. A per diem of$ 35.00 will be charged for aD personnel required by the work to maintain lodging
outside the San Francisco Bay or Lee, Mass areas. The cost of transporting materials, equipment, and/or
persormel via ETC's company or personal vehicles, as required for proper performance of the work, is charged
at the rate ofS 0.375 per mile.
Engineering . Applied Research . Measurements . Exposure Assessment . Hardware and Software Development
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4. For those extraordinary expenses that may be descn1>ed in the ETC proposal (or cost estimate), Client
authorizes ETC, as client's agent, to execute in client's name, purchases and contracts for these items
including, but not limited to, consultants; rental or purchase of special equipment; rental of external
computers; expendable supplies; sampling work; or other special investigation or exploratory work as required
for the performance of work. Such purchases or contracts shall be negotiated with a person or business of
ETCs choice unless bid invitation is specified by the Client. Extraordinary expenses are charged to the project
at direct cost plus 100/0 surcharge. .
5. ETC will use ffiM or Compatible Intel-based computers that will be billed at $10.00 per computer hour. (Use
of external mainframe computers will be charged at cost). The use ofEnertech proprietary software tools in
providing services does not include or imply a license to the Client. for the software. Fee for special use ofHP
3561ADynamic Signal Analyzeris $500.00 per month for each incremental month thereof
6. Unless stated otherwise, any cost estimate presented in our proposal is for budgetary pwposes only and is not a
fixed lump sum price, unless agreed upon in writing in advance. It: at any time during the progress of the
work it appears that the estimated cost will be exceeded, the Client will be informed. However, unless written
notifialtion is received to stop woik, ETC will continue working on the project to completion and will invoice
for all professional services and expenses incurred.
7. The Client shall defend, protect, indemnifY and hold hannless ETC and their respective affiliates, officers,
employees, agents, or assigns from and against any and all liability, costs, expenses, (mcIuding attomey's fees),
claims, demand, judgments, losses, property damage, disease, or death to any person, arising out of or related
to client's, its officers', directors', employees', representatives', material and equipment suppliers',
subcontractors', subconsuJtants', agents' and each of their successors' and assigns' performance or
nonperformance tmder this agreement or agreements with third parties relating to the project or projects of
which this contract is a part. Work performed by ETC shall be governed by and construed in accordance with
laws of the State of California
8. Invoices are due in fun within 30 days of receipt or a late fee of 2% per month will be assessed, unless a
written agreement with different terms has been executed with ETC.
9. Client shall agree to comply with the applicable laws of the state of California
19:--ABy~es-getwee&tfte.1'f6visioos-e?tflis-8ehedttle-n-A'!..M6-the-eootf8et--t6-w:hieh-BehetluJe-!!AJl-is-
atUlJK;() VI u:st:d ill pi qJlU cdiull ofcom ~nate5"stmfH:1e'oont:roIIedby1tre-pmvisirnls ofSclredute"..JtU.
Engineering . Applied Research . Measurements . Exposure Assessment . Hardware.and Software Development
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 Agre.ement, City shall pay Consultant a maximum
Contract Price (Contract Price) of Fifteen Thousand Five Hundred Dollars and No
Cents ($15,500.00). 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 compensation
for all applicable taxes, customs duties, fees, overheads, profit, travel time to and
from the Work Site and all other direct and indirect costs incurred or to be
incurred by Consultant hereunder. The Contract Price set forth above and the
rates set forth in any attachment incorporated into this exhibit 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 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 of the
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 City for a change shall not be subject to
adjustment for any reason, including changes in the value of any currency.
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.
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EXHIBIT
C
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 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, 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 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. 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
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;
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(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 'W ork 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 on the 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 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 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 unexecutedn
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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 of insurance 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 of the 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 ofrace, 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 Order is 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
EXHIBIT E
Form Cham!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 (Enertech Consultants of Santa Clara City (City of Vernon, California)
County, Inc., dba Enertech Consultants
By By
Date Date
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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 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
- End of Exhibit E -
E-2
SUPPORTING
DOCUMENTS
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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
. /!If)
thi~ day of ~'"'72005, in the Cily of Vemon, Conoly of 1.0, 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
.ENERTECH CONSULTANTS OF SANTA
CLARA COUNTY, INC., dba ENERTECH
CONSULTANTS, hereinafter referred as
the "Consultant,"
300 Orchard City Drive, Suite #132
Campbell, CA 95008
RECITALS
WHEREAS, the City is constructing the Malburg Generating Station Combined
Cycle Power Plant at 2715 E. 50th Street in the City of Vernon (the "Malburg Project") for
purposes of installing additional generating capacity; and
WHEREAS, the City has determined that it is in the best interest of the Malburg
Project that the City retain the services of a fIrm to provide the City with an assessment of the 60
Hz power-frequency electric and magnetic field strengths associated with the Malburg Project at
representative locations (collectively, the "EMF Assessment") for the benefit of the Malburg
Project; and
WHEREAS, Consultant has prepared a proposal dated January 5,2005, for the
services, instrumentation, software and materials necessary for the EMF Assessment, a copy of
which is attached hereto as Exhibit A and incorporated by this reference (the "Proposal"); and
WHEREAS, Consultant represents that it is qualified and capable of furnishing
the labor, materials and expertise necessary to perform the services that the City requires, as set
forth in this Agreement, the Proposal, and Schedule A attached to the Proposal, and is willing to .
do so on the terms and conditions set forth below; and
WHEREAS, the EMF Assessment has been competitively bid, and Consultant's
cost proposal is acceptable to the City; and
WHEREAS, the City desires to enter into an agreement with Consultant to
provide the EMF Assessment on a time and materials basis as defined in the terms and
conditions set forth below.
1
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NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1.0 Scope of Services
Consultant shall provide its EMF Assessment services under the general supervision of
the Chief Executive Officer of the Light and Power Department and shall include, but not
be limited to, Task I-Initial EMF Site Survey, Task 2-EMF Pre-Operation Condition
Assessment (Pre-Operation EMF Survey) and Task 3-EMF Post-Operation Conditions
Assessment (Post-Operation EMF Survey) and such other services needed to perform the
EMF Assessment 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. Completion of the services to be performed by the Consultant
is expected to be no later than eight (8) months 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 - Enertech Consultants
of Santa Clara County, Inc.
Attn: Nancy Hooper, Contracts Administrator
300 Omhard City Drive, Suite #132
Campbell, CA 95008
City - City of Vernon, California
Attn: Bruce V. Malkenhorst, City
AdministratorlCity Clerk
4305 Santa Fe Avenue
Vernon, California 90058
Fax: (408) 866-7279
Telephone: (408) 866-7266
. Fax:
Telephone:
323-826-1438
323-583-8811 ext 260
III
III
III
2
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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). Each
party will select an arbitrator. Those two arbitrators will then select a third. The three
member panel will make the final decision. 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 Angeles County. Any and
all contracts between Consultant and any subcontractor relating to this Agreement shall
include the same arbitration clause.
6.0 Entire Agreement
This Agreement shall be comprised of these signed business terms (Business Terms),
together with Exhibit A - The Proposal together with Schedule A; 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 ofthe 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.
III
III
III
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3
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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:
Enertech Consultants of Santa Clara
County, Inc., dba Enertech Consultants
~.<Vt1~ DI~
e: ' :r :fYl..rk..J ~ vo-
itle: pre S','cl~
. Date: I{ I ').,./ 0 $"
t? ~..&?~ 1:1. 5 ~ I VCL.-
Name: ~o... G~Jvo...
Title: CAie..-4 F,~cto..Q offi'c~
Date: l{ 1-"''21 O$"
City:
City of Vernon
N~'
Date:
A~/~
Bruce V. Malkenhorst, City Clerk
4
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Janwuy 5, 2005
Me. Carlos Fandino
Malburg Generating Station
City ofVemon
2715 East 50th Street
VelllOll, CA 90058 .
ENERTEOI Consultants
300 0rd1aId City Drive 17 Main 5met
Suite f132 P.o. Box?70
Campbell, CA 95lnl I-. MA 01238
Voice: (<<JS) 866-72ti6 VClia: (413) 2U.2BlJO
Fax: (44l8J ~ Fax:: (413) 243-4620
Web Sdc:hUyJIwwW.-teduaet
)?ear Me. Fandino:
In response to )WI" request. E.nertech has prepared this ptOJlO&d which outlines the powec.fu:queacy EMF asses:..lIent
services to be pe.tbmed fOr the ~ Geaeaating Station in Veooo. CaJifomia. We Jme the expelieooed ~
instrumenfationand 50ftware capabiJify to provide you with an ~ of the 60 Hz powec.fu:queacy dectric and
magnetic field streDgtbs ~ with the ge&2idiug stalion at iep.~ve IocaOOns.
I have prepared this statement of W<1Ik and cost e,qj~e based upon the following tasks :
t) IaitiaI EMIl Site Saney .
^ tecImician from Enenecb would travel to Vernon to pelform power fm)oeacy (60 Hatz) electric and
magnetic fieI4 measurements at the Malburg Generating Station. Electric and magnetic &Id measurements
would be performed in the area of the plant site and in the immediate surrounding local area where regular
pedestrian or lWIka- b3ffic is present. Measurements would be per.fonned at a height of 1 meta" (3.28 feet)
above ground level in acconIance with IEEE Standard 1644-1994 (IEEE Standard ~ for
Measurement of Power Frequency Electric and Magnetic FIdds from AC Power Lines). If appM09fiate.Iatera1
profile measurements would be performed to adequately characterize the e1ectric and ~ field levels as a
function of distance away from an electric facility. Locations would also be surveyed and identified for possible
sub!iequeot 24-hour monitoring. Upon ~ a draft measuremeut report would be ~qwed which
summarizes the results of the initial EMF site SUl'Vey and provide nx:ommeudatious for devdopment of a CEC
assessment plan.
EMDEX n eIedric and magnetic field recording meters will be used to perform powec..frequency electric and
. magnetic field measurements. All EMDEX n meters will be calibrated prior to performing field measurements
in accordance with IEEE'Standards.
Magnetic fields from power lines will vary in dired proportion to the loading on the power line. Line loading
can vary during the day, from day'to day, and from season to season. Monitoring the power line loading at the
time of measurements should be per.fonned for comparison with subsequent site suneys.
2)' EMJI' Pre-Operatioa Coaditioa Assessmaat
Once the CEC site assessment plan has been formalized and approved, a technician ftom Enertech 'WOUld
again travel to Vernon to pedorm power frequency (60 Hertz) electric and magnetic fieJd me3$UI'ements at the
Malburg Generating Station in accordance with the approved plan. Electric and ~.ic field measurements
would be performed at specified locations in accordance with IEEE Standard fl644-1994. If requested, 24-hour
.baseIine measurements 'would be collected at selected locations where the measurement ciquipment can be
safely secured. EMDEX n electric and magnetiC fieJd recording meters will again be used to perform power_
frequency electric and magnetic field measurements. All EMDEX n meters will be calibrated prior to
performing fieJd measurements in accordance with IEEE Standards. Upon completion., a pre-operational EMF
measurement report would be prepared for review by COVand submission to the CEC. Monitoring the power
line loading at the time of measurements should again be performed for comparison with previous and
subsequent site surveys.
, .
3) EMF .Post..operation Condition Assessment .
Once the Malburg Generating Station coostroction has been completed and is ready for operation (assumed in
200$), a post-operation assessment plan would be performed. The post-openltion measurement ~
would folJowthe same format as the previous CEC-approved pre-operation site assessment plan. A technician
ftum Enertech would again travel to Vernon to perform power frequency (60 Hertz) electric and magnetic field
D1e3SUI'emeDts at the Malburg Generating Station in accordance with the approwd plan. Electric and magnetic
field measurements llOOId be perfonned at specified Iocatioos in accordance with IEEE StandanlI644-1994.
H requested, 24-hour baseline measurements would be ooIlec:ted at sdected locations where the measurement
equipment can be safely secured. EMDEX n electric and magnetic field recording metelS will again be used to
pedorm power.freque.ocy eIedric and Jrull?1Cfic field measurements. All EMDEX n meters will be calibrated
-prioc to perfonoingfieJd ~ in accordance with IEEE Standards. Upon ~ a post_
cpeI3tionaI EMF measoremeut report would be prepared for review by COV and submission to the CEe.
Monitoring the power line loading at the time of measurements should again be performed for comparison
with previous site SUl"\'e}'S.
The pre- and. post-qJeration tecImicaI assessment rqxxts would include a genernI description of power frequency
electric and. ~ fields. the Malburg Generating SUtion site description, and a suounaly of the electric and
~ field measurement results in both tabular and graphical formats. Tables of typical appliance field levels
and oda rdatt:d information llOOId be provided for comparisoa In addition, a section of the report could include a
discussion OIl the lack ofStaie and federal magnetic fiddhealth standards and of existing recom~ by the
ACGnI and ICNlRP. .
1.1Ie total cost -*imo~ to pUforw aD thne Utks w..w IJe S15,5OO.. The cost rmmate to perbul the initial EMF site
survey lWUId be $3,900, while the cost ~P- to pedonn the pre- and post-qJer.dion EMF site survey llOOId be $5,800
fOr each survey ($11,,600 fOr both site ~ CClSt rm~ fOr the pre- and post-qJer.dion EMF sitesorveys are based
upon an ~;..~ two-day ~ a:ope cLWOdc and oouId vaay, dtp'ndiqg upon the amouut d measurement
\WIi: .n:quired (-t1Sfed dtber- upwards 10r addibooal \WIi: or cIowmQnts 10r less lWdc). Cost ~;~ are based upon
the measu.w.eot ~being ~ in 2005. DetaiIs~ our cost e:fi..~ are saacbed IfJOO elect to pc:dOaill
this lWIk, ~ wiD require wriUen auduu..600 and either fuD PftPlYDIlD or a signed 00DtI3ct in ordet to begin the work.
0Ire we have been autI1ori2r.d. to proceed, we lWUId fdIeduIe a coovmieot time with you to perlOrm the initial site
survey. Cost ~;..~ are valid 10t 9O-days ftum receipt cLthis pl~
If)'Oll have any quesIioos. please feeI.fiee to aJOIact me. We appreciate the oppodWlily to lWdc with you OIl this new
prQject.
\ Sinrerdv Yours.
~~~.
II. Onistqlher Hooper
cc: Nancy Hooper, EneI1cch CootmcfsAdmilli~alor
..
, .
Malburg Genberating Station: Initial EMF Assessment Proposal
Task 1 -Initial EMF Survey Hooper Ramirez Admin TolaI
Prepa/ations 2 2 2
Travel to Vernon. CA 3
EIedric and Magnetic Field Meesuremenls 8
Travel to San Jose. CA 3
Data Analysis 2 4
Prepare Report 4 8 2
SuMataI- Houts 8 28 4
HOutty Rate $115 $75 $50
SUIlCioCaI- LlIIIor S920 $2.100 $200 $3,22Ilt
~
Airfare (RocM1d Trip) $250
Hotel (One Night) $110
Car Rent.aI (One Day) $100
Per Diem (~0Iy) $35
AIrport PlIfIlq (One DIy) $35
Mis:elaneous ~ (Telephone. FAX. eu) 5150
........ e.- S68) ...
Task 1- Total Cost Estimate: $3.100
Malburg Genberaling Station : EMF PIe-Operation Condition Assessment
Task 2 - Pre-OperaUon EMF Survey Hooper RamIIez Admin Total
Preparations 2 2 2
Travet to Vernon. CA 3
EIedric and Magnetic Field Measwements 16
Travet to San Jose. CA 3
Oala Analysis 4 8
Prepare Report 8 8 2
SUIltota.- Houts 14 40 4
HOutty Rate 5115 $75 $SO
SUIltota.. Ubor 51.610 $3.000 $200 $UtO
Expenses
Aifare (Rculd Trip) $250
Hotel (T- NighIs) $225
Car Rent.aI (l'wo Days) S200
Per Oiem (Two Days) $70
Airport Parfdng (Two Days) S70
MiscellallElOU$ Expenses (Te/ephone, FAX. etc.) $175
Subtotal. Expenses $990 $990
Task 2 - Total Cost Estimate: $5,aoo
"
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Malburg Genbefating Station : EMF Post.()peration Condition Assessment
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2005
SCHEDULE A
ENERTECH Q.osuJtmls
:lIlOOodo.td 0Ir Dritte 17....... ~
Suili,fi32 P'O.....7:lU
c-pwI..CA ~ l<<.MAOI238.
VGioo;(4OI)1li6-12If6 V~(413)2U-2800
Fax: HlllQ~ Fax: (413) 20-1620
w....lfiIlo; 1fIp:I1www.-..........
Schedule For Professional Services
1. The professional services of ENERTECH ComJItants of Santa Clara County, Inc., (d.b.a Enertech
Consultants) hereinafter. referred to as ETe, are performed acoording to the following rate scbeduIe. This
Schedule For Profession8J ServiresshaD be incoJporated into aD contracts with ETC and shaD be refer~in
aD contracts. Professional services are perfomied for the Client on an hourly basis for aD time rendered to the
project, including, but not limited to. project scoping by professional. technicaJ. and admil)istudi~ personnel.
ETe may clect to perform "lump sum" jobs. in which case. only the single or lump sum amount is dwged. -An
invoice charges are based on and are payable in U.S. dollars.
These rates are BTCs minimum standard commercial consulting/service rates:
President
VICe President
Design Manager
Senior Teclmical Staff
TecJmiad Staff I
Ted:miadStaff"ll
Teclmiad Staffm
Senior Administrative Staff
Administrative Staff
Clerical
HOURLY lNVOlCERAlE SCHEI>UJ..E
General
Consulting
$ 230.00
180.00
125;00
95.00 - 120.00
10.00 - 95.00
60.00 - 10.00
45.00 - 65.00
95.00
65.00 - 95.00
65.00
Short Tenn: Hourly rates will be increased 200A for aD projects involving either mpid startUp or short notice that
require rescheduIipg of existing commitments or Other unusual mobilization efforts. This premiwn
wiD also appJy to worlc: specificaDy requested on holidays or weekend$.
2. Tune required for ETC personnel to travel between ETCs office and the site. (or any other destination
applicable to the work). is charged in accordance with the rate schedule above.
3. AD ordinary ex:peDses inanred during the performance of the work: are charged at direct cost to the project.
Such expenses include, but are not limited to. lodgjngs. traveL; telephone. express mail service. reproductions.
and so forth. A per diem of$ 35.00 wiD be dwged for all personnel required by the work to maintain lodging.
outside the San Francisco Bay or Lee. Mass areas. The cost of transporting materials. equipment. and/or
personnel via ETCs company or personal vehicles. as required for proper performance of the worlc, is charged
at the rate of$ 0.375 per mile.
Engineeti.1g . Applied Research . Measurements . Elcposure Assessment . Hardware and Software Development
.~
4. For those extraordinary expenses that may be described in the ETC proposal (or cost estimate). Client
authorizes ETC, as client's agent, to execute in client's name, purchases and contracts for theSe items
~ but not limited to, consultants; rental or purchase of special equipment; rental of external
oomputecs; expendable supplies; sampling work; or other special investigation or e.xplomtoty worlc as required
for the perfOl1lJaf1OO of work. Such ~ or contracts shaD be negotiated with a person or business of
ETC's choice unless bid invitation is specified by the Client. Extraordinary expenses are cbatgedto the J>fC!iect
at.direct cost plus 10''' sun:hcuge. .
5. ETC win use illM or Compatible Intel-based oomputers that wiD be biDed at $10.00 pee computer hour. (Use
of..~ mainfiamecomputels wiD be charged at cost). The use ofEnertech proprietaJy software tools in
providing servires does not include Or imply a license to the Client for the software. Fee for special use ofHP
356IA Dynamic Signal Analyzer is $500.00 per month for each incremeotaI month thereof
6. lJnIess stated otherwise, any cost estimate presented in our proposal is for budgetary ~ onlY and is not a
fixed lump sum ~ tmlessagreed upon in writing. in advance. If: at any time dwing the progress of the
worlc it appears that the estimated cost wiD be exceeded, the Client wiD be infonnecl. However, unless written
notification is received to stop wotk, ETC wiD continue worldng on the J>fC!iect to completion and wiD invoice
for aD professional ~.and expenses incurred.
7. The aient.shaII defend, protect, indemnify and hold bannIess ErC and their respective affilmtes, officers,
employees, ~ or a~gns from and against any and aD liability, costs, expenses, (mcIuding attomey's fees),
claims, demand, judgmeots, losses, ~ damage, disease, or death to any person, arising out of or related
to clienr~ its officers', directors', employees', representatives, material and equipment suppliers',
subcootractors', subconsuItants', agents' and each of their sua:essors' and a~ perfonnance or
nonpeIformance under this agreement or agreements with third parties reJafing to the prqea or prqjects of
which this contract is a part. Work pai'onned by ErC shall be governed by and construed in accordance with
laws of the State ofCalifomia.
.8.. Invoices are due in fun within 30 days of receipt, or a late fee of 201'0 per.month wiD be assessed, unless a
written agre(ment with di1fetent ~ has been executed with ErC.
9. Client shall agree to comply with the appJialble laws of the state ofCalifomia.
~
19:--ABy~ betweea tJte.1'f6visions-ef-tJHs-~ ft-1\'!..8fl6-t1te-oontfaetio-which Seheduk .!!.AJ!-is-
~ VI WAAl ill pi cpiuatiUIl uf 00>1 ~JJI1teS"shaftbe"conttoIIed'by1mrprovisi\KJS ofScbedute"..}\"". .
Engineering . Applied Research .. Measurements . Exposure Assessment . Hardware and Software 0eYeI0pment
EXIDBIT 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 conditiQns of this Agreement, City shall pay Consultant a maximum
Contract Price (Contract Price) of Fifteen Thousand Five Hundred Dollars and No
Cents ($15,500.00). 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 compensation
for all applicable taxes, customs duties, fees, overheads, profit, travel time to apd
from the Work Site and all other direct and indirect costs incurred or to be
incurred by Consultant hereunder. The Contract Price set forth above and the
rates set forth in any attachment incorporated into this exhibit 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 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 of the
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 City for a change shall not be subject to
adjustment for any reason, including changes in the value of any currency.
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
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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
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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 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, 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 Agreement, are maintained in force.
Consultant shall ensure its Sub-Consultant(s), ifany, 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 $1,000,000. 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
EXHmlT 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
Agreemenl 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:
(I) Information which, at the time of disclosure hereunder, is in the public
domain;
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(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 ofthis 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
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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 ofa 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
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:
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 ofthe Consultant's employees working
full or part time on the 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 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 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
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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 011 City
premises unless and until a certificate of insurance 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 perinitted 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,
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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,Cons1.iltantshllll 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 ofthedefense 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 of the 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,
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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.
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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 defaultor 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 mannershall 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 Order is set forth in
Exhibit E attached hereto and incorporated by reference.
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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 -
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EXHIBIT E
Form Chane: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 (Enertech Consultants of Santa Clara City (City of Vernon, California)
County, Inc., dba Enertech Consultants)
By By
Date Date
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INSTRUCTIONS TO CONSULTANT
Contract Number:
Instruction to Consultant Number:
Date:
Specific Instructions to Consultant:
In accordance with the Terms and Conditions ofthe 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, ifany.) 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 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 ofthe
classification assigned hereto by City.
Consultant Representative
Date
- End of Exhibit E -
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