Resolution No. 8722
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RESOLUTION NO. 8722
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A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION OF
AN AGREEMENT FOR PROFESSIONAL SERVICES BY AND
BETWEEN THE CITY OF VERNON AND DONAL O'CALLAGHAN
FOR THE MALBURG GENERATING STATION PROJECT
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7 WHEREAS, the City of Vernon ("City"Y is constructing a 134
8 MW Combined Cycle Power Plant, the Malburg Generating Station (the
9 "Malburg Project"), for the purpose of installing additional
10 generating capacity that will yield an efficient, cost-effective, and
11 reliable source of electric generation to the City's inhabitants; and
12 WHEREAS, on July 16, 2003, the City Council of the City of
13 Vernon adopted Resolution No. 8252 with the intention of expediting the
14 purchase of supplies and services for the Malburg Project; and
15 WHEREAS, the City has determined that it needs a consultant
16 to perform general management services to assist the City in all
17 aspects of developing, erection, commissioning and commercial operation
18 of the Malburg Project; and
19 WHEREAS, the City has determined that Donal O'Callaghan
20 possesses the technical knowledge and expertise to furnish the
21 management services required by the City; and
22 WHEREAS, Donal O'Callaghan is in the process of forming
23 O'Callaghan LLC, a California limited liability company; and
24 WHEREAS, by letter dated April 12, 2005, Bruce V.
25 Malkenhorst, City Administrator/City Clerk, recommended that the hiring
26 of O'Callaghan LLC be ratified and a contract be approved and executed;
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28 WHEREAS, the City Council of the City of Vernon has
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determined that, pursuant to the provisions of subsection (a) of
Sect~on2.27 of the Vernon City Code, it is in the public interest and
necessity to enter into a contract with O'Callaghan LtC.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF VERNON AS FOLLOWS:
SECTION 1: The City Council of the City of Vernon hereby
finds and determines that the recitals contained hereinabove are true
and correct.
SECTION 2: The City Council of the City of Vernon hereby
approves the Agreement for Professional Services with O'Callaghan LLC
in substantially the same form as the copy which is attached hereto as
Exhibit A and incorporated by reference.
SECTION 4: The City Council of the City of Vernon hereby
authorizes the Mayor to execute said Contract for, and on behalf of,
the City of Vernon and the City Clerk is hereby authorized to attest
thereto.
SECTION 5:
The City Council of the City of Vernon hereby
designee, to send one fully executed
directs the City Clerk, or his
Contract to 0' Callaghan LLC.
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SECTION 6:
The City Clerk of the City of Vernon shall
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3 thereafter the same shall be in full force and effect.
4 APPROVED AND ADOPTED this 13th day of April, 2005.
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.,/' \~ONIS C. M BORG, Mayor
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11 BRUCE V. MALKENHORST, City Clerk
ATTEST:
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STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
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I, BRUCE V. MALKENHORST, City Clerk of the City of Vernon, do
hereby certify that the foregoing Resolution, being Resolution No.
8722, was duly adopted by the City Council of the City of Vernon at a
special meeting of the City Council duly held on Wednesday, April 13,
thereafter was duly signed by the Mayor of the City of
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9 Vernon.
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BRUCE V. MALKENHORST, City Clerk
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EXHIBIT
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AGREEMENT FOR PROFESSIONAL SERVICES
BY AND BETWEEN
VERNON
CITY OF ~~ CALIFORNIA
AND
o 'CALLAGHAN, LLC
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AGREEMENT FOR PROFESSIONAL SERVICES
BY AND BETWEEN
CITY OF SANTA CLARA, CALIFORNIA
AND
o 'CALLAGHAN, LLC
This agreement for the performance of professional project general management services
("Agreement") is made and entered into on this day of April , 2005 ("Effective
Date"), by and betweenO' Callaghan. LlJr individual sole proprietor, whose address is
("Contractor"), and the City of ~ California., a chartered
California Municipal Corporation, with its principal place of business located at iiH 4305 Santa
Fe Avenue. ("City"). City and Contractor may be
Vernon, CAreferred to herein individually as a "Party" or collectively as the "Parties" or the "Parties to
90058 this Agreement."
RECITALS
A_ City desires to secure professional services more fully described in this Agreement to
assist the City in all aspects of planning, deve1opm.ent, licensing and construction of a
gas turbine electric generation facility, to be located in the City of Santa Clara;
B. Contractor has represented to the City that he has considerable knowledge and
ex.penence in the power plant construction industry and that he possesses the
pl:ofessional qualifications, expertise, and desire, necessary to provide the required
professional services of the quality and type which meet the City's requirements; and,
C. The Parties have specified in this Agreement the tenns and conditions under which
such professional project management services will be provided and ,the tenns and
conditions of compensation for such services.
Contractor and City agree as follows:
AGREEMENT PROVISIONS
1. SERVICES TO BE PROVIDED
Based representations made by the Contractor to the City that he has required knowledge and
experience in the power plant construction industry, that he possesses the professional
qualifications, ex.pertise, and desire, and is available to perform the tasks required to assist
the City in constructing a combined cycle gas turbine electric generation facility (the
"Project") to be located in the City of Santa Clar~ City hereby enters into this Agreem.ent
with Contractor to perform the specified services (the "Services''). Such Services are more
fully described in Exhibit A, entitled "SCOPE OF SERVICES," attached and incorporated by
this reference.
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2. TERM OF AGREEMENT
Unless earlier terminated pursuant to the terms of this Agreement, or subsequently modified
by a written amendment to this Agreement, the tenD. of this Agreement shall begin on
April, 2005 and terminate at the end of day on . 200S (the "Term").
Contractor shall begin performing the Services after receiving confirmation from the City to
proceed with the Services.
3. COMPENSATION AND PAYMENT
In consideration for Contractor's complete performance of the Services, City shall pay
Contractor as outlined in Exhibit B, entitled "SCHEDULE OF FEES," attached and
incorporated by this reference.
4. NO ASSIGNMENT OF AGREEMENT
City and Contractor bind themselves, their successors and assigns to all covenants of this
Agreement. This Agreement is for individual professional services and shall not be assigned
or transferred without the prior written approval of the Parties.
s. NO THIRD PARTY BENEFICIARY
This Agreement shall not be construed to be an agreement for the benefit of any third party
or parties, and no third party or parties shall have any claim OT right of action under this
Agreement.
6. INDEPENDENT CONTRACTOR
Contractor is an independent contractor and at no time during the Tenn of this Agreement
shall he act as an agent or employee of City. Contractor has full rights to manage his
employees, if any, in their perfonnance of Services under this Agreement. Contractor is not
authorized to bind City to any contracts or other obligations.
7. SUBCONTRACTING
None of the Services provided by the Contractor under this Agreement shall be performed by
subcontractors, unless the Contractor specifically identifies such subcontractors in writing
and City pre-approves tbe performance of Services by such subcontractors in writing.
Contractor shall be as fully responsible to City for the acts and omissions of such
subcontractors, and of any persons either directly or indirectly employed by them, as
Contractor is for the acts and omissions of persons directly employed by the Contractor.
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8. USE OF CITY NAME OR EMBLEM
Contractor shall not use City's name, insignia, or emblem, or distribute any information
related to services under this Agreement in any magazine, trade jownal, newspaper, film or
other medium without the prior express written consent of City.
9. AUDITS
City, through its authorized representatives, has the right during the term of this Agreement,
and for three (3) years from the date of final payment for goods and/or Services provided
under this Agreement, Contractor's records regarding matters covered by this Agreement.
Contractor agrees to maintain accurate records in accordance with generally accepted
accounting principles. Any expenses not so recorded shall be disallowed by City. Contractor
agrees to help City meet any reporting requirements with respect to Contractor's Services if
requested by City in writing.
10. QUALIFICATIONS OF CONTRACTOR
Contractor represents that he is qualified to furnish Services of the type and quality which
City requires. City expressly relies on Contractor's representations regarding his skills,
knowledge and experience. Contractor shall promptly perform all Services requested by City
in a safe manner and in accordance with all federal, state, and local laws and regulations.
Contractor shall work closely with the City in this regard. Contractor shall also perform all
Services in accordance with generally accepted business practices and performance standards
of the jndustry.
11. MONITORING OF SERVICES
City may monitor the Senrices perfonned under this Agreement to determine whether
Contractor's actions conform to City policy and to the tenns of this Agreement. City may
also monitor the Services to be performed to determine whether Contractor's operations are
conducted in accord with applicable City, county, state, and federal requirements. If any
action of Contractor constitutes a breach of such requirements, City may tenninate this
Agreement pursuant to the provisions described in this Agreement.
12. WARRANTY
Contractor expressly warrants that all Services covered by this Agreement are appropriate for
the purpose intended and shall conform to the specifications and requirements upon which
this Agreement is based. Contractor agrees to promptly correct any incomplete, inaccurate, or
defective Services at no further cost to City when defects are due to the negligence, errors
and/or omissions of Contractor.
13. FAIR EMPLOYMENT
Contractor shall not discriminate against any employee or applicant for employment because
of race, color, creed, national origin, sex, age, condition of physical handicap, religion, et1mic
backgroun~ or marital status, in violation of state or federal law .
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14. HOLD CITY RARMLESSIINDEMNIFICATION
To the extent permitted by law, Contractor agrees to indemnify, protect, defend, and hold
harmless City, its City Council, officers, employees, volunteers and agents from and against
any claim, injury, liability, loss, cost, and/or expense or dama.ge, including all costs and
reasonable attorney's fees in providing a defense to any claim, arising :from Contractor's
negligent, reckless or wrongful acts, errors, or omissions with respect to, or in any way
. connected with, the performance of the Services by Cont:ractor, its agents, subcontractors
and/or assigns under this Agreement.
City agrees to indemnify the Contractor from claims arising from his professional errors and
omissions or malpractice arising from the Services provided by Contractor to City under the
terms of this Agreement.
15. INSURANCE REQUIREMENTS
During the term of this Agreement, and for any time period set forth in Exhibit C, Contractor
shall purchase and maintain in full force and effect, all insurance policies required to cover
the Contractor's performance of Services under this Agreement, with coverage amounts,
required endorsements, certificates of instn"ance, and coverage verifications as defined in
Exhibit C, attached and incorporated by this reference. City shall reimburse Contractor ror
the premiums related to such insurance policies as set forth in Exhibit B.
16. AMENDMENTS
This Agreement may be amended only with the written consent of both Parties.
17. INTEGRATED DOCUMENT
1ms Agreement represents the entire agreement between City and Contractor. No other
understanding, agreements, conversations, or otherwise, with any representative of City prior
to execution of this Agreement shall affect or modify any of the terms or obligations of this
Agreement. Any verbal agreement shall be considered unofficial information and is not
binding upon City.
18. SEVERABILITY CLAUSE
In case anyone or more of the provisions in this Agreement shall, for any reason, be held
invalid, illegal or unenforceable in any respect, jt shall not affect the validity of the other
provisions, which shall remain in full force and effect.
19. LAW GOVERNING CONTRACT
This Agreement shall be governed and interpreted using the laws of the State ofCalifomia.
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20. DISPUTE RESOLUTION
A. Any controversies or claims between Con1ractor and City regarding this Agreement
must first be put in writing and delivered to the other Party. The Parties will meet in
good faith to attempt to Tesolve the issue in question. If the Parties fail to come to an
agreement on the resolution of the issue, all required administrative procedures must
be followed. If all administrative procedures are exhausted and the Parties are unable
to resolve the issue, the matter must be submitted to mediation within thirty (30)
calendar days after the written request for mediation is delivered by one of the Parties
to the other Party.
B. The Parties may agree on one mediator. If they cannot agree on one mediator, the
Party demanding mediation shall request that the Superior Court of Santa Clara
County appoint a mediator. The mediation meeting shall not exceed one work day
[eight (8) hours]. The Parties may agree to ~tend the time allowed for mediation
under this Agreement.
C. Mediation under this section is a condition precedent to filing an action in any court.
In the event litigation or mediation arises out of any dispute related to this
Agreement. the Parties shall each pay their respective attorneys' fees. expert witness
costs and cost of suit, regardless of the outcome of the litigation.
D. Only after both the administrative dispute resolution procedure and the mediation
procedure have failed to resolve a dispute between the Parties shall be settled by
arbitration before three arbitrators, pursuant to the commercial arbitration roles of the
American Arbitration Association. in San Francisco, California; provided however,
that any award pursuant to such arbitration shall be accompanied by a written opinion
of the arbitrators giving the reasons for the award. The arbitrators shall be selected by
the joint agreement of City and Contractor, but if they do not so agree within thirty
(30) days of the date of request for arbitration, the selection shall be made pursuant to
the rules of such Association. The award rendered by the arbitrators shall be
conclusive and binding upon the Parties, and judgment upon the award may be
entered in any court having jurisdiction or application may be made to such court for
a judicial acceptance of the award and an order of enforcement. Each party shall pay
its own expenses of arbitration and the expenses of the arbitrators (including their
compensation) shall be equally shared; except that, if any matter of dispute raised by
a P~ or any defense or objection thereto was unreasonable. the arbitrators may
assess, as part of their award, all or any part of the arbitration expenses (including
reasonable attorneys' fees) of the other Party and of the arbitrators against the Party
raising such unreasonable matter of dispute or defense or objection. Nothing in this
Agreement shall prevent City and Contractor from settling any dispute by mutual
agreement at any time or from agreeing to have any arbitration conducted by a single
arbitrator.
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21. VENUE
The venue of any suit filed by either Party shall be vested in the state courts of the County of
Santa Clara, or if appropriate, in the United States District Court, Northern District of
California, San Jose, California.
22. ELECTION OF REMEDIES
The pursuit by any Party of any specific remedy shall not exclude any other remedy available
to the Party.
23. CONFLICT OF INTERESTS
This Agreement does not prevent either party from entering into similar agreements with
. other parties. To prevent a conflict of interest, Contractor certifies that to the best of its
knowledge, no City officer, employee or authorized representative has any financial interest
in the business of Contractor and that no person associated with Contractor has any interest,
direct OT indirect, which could conflict with. the faithful performance of this Agreement.
Contractor is familiar with the provisions of California Government Code Section 871 00 and
following, and certifies that it does not know of any facts which would violate these code
provisions. Contractor will advise City if a conflict arises.
24. TERMINATION OF THE AGREEMENT
A. Termination Without Cause
Either party may tenninate this Agreement without cause by giving the other Party
written notice ("Notice of Termination") which clearly expresses that Party's intent to
terminate the Agreement. Pursuant to this type of Notice of Tennination, such
termination shall become effective no less than thirty (30) calendar days after a Party
receives such notice. After receipt of such notice from either Party terminating the
Agreement, Contractor shall discontinue providing any further Services as of the
effective date of tennination. City shall pay Contractor for all Services satisfactorily
performed up to such date.
B. Termination For Cause
Nothing in this Agreement shall be construed to prevent the termination of the
Agreement by City at any time for "cause." For pUIpOses of this Agreement, "cause"
shall mean the failure of Contractor to observe or perform (other than by reason of
illness, injury or incapacity) any of the material terms or provisions of this Agreement
'-Cause" may include dishonesty, willful misconduct, conviction of a felony or other
crime involving moral tuIpitude, misappropriation of funds, habitual insobriety,
substance abuse, any action on the part of Contractor involving willful and deliberate
malfeasance or gross negligence in the performance of his duties and responsibilities
under this Agreement.
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Should either Party default in the performance of this Agreement or materially breach
any of its provisions, the nondefaulting Party may terminate this Agreement for
Cause by giving five (5) days written Notice of Tennination to the defaulting Party.
For purposes of this Agreement, the term "material breach" or "default" shall mean
the failure of any party to perform any material obligation in the time and manner
provided by this Agreement.
Pursuant to this type Notice of Termination, such termination shall become effective
no less than five (5) calendar days after a party receives such notice. Such Notice of
Termination for cause shall include a statement by the terminating Party setting forth
grounds for determination of default under the Agreement. In the event this
Agreement is terminated for cause as set forth under this section, City shall pay
Contractor for all Services, (excluding any performance incentives), satisfactorily
performed up to the date of the Notice of Termination. City may deduct from such
payment the amount of actual damage, if any, sustained by City due to Contractor's
failure to perfonn the Services or for breach of this Agreement. Thereafter. City shall
have no further liability or obligation to Contractor. .
c. Opportunity to Cure Default
Upon receipt of a Notice of Tennination by a Party arising from its default under this
Agreement, the defaulting Party shall have five (5) days from the receipt of such
notice to cure the default by making such payment or perfonning the required
obligation. If the default is cured to the mutual satisfaction of the Parties, the
.Agreement shall remain in effect upon written acceptance of the cure by the Party
who issued the Notice of Termination for cause.
D. Termination on Occurrence of Stated Events
This Agreement shall automatically terminate upon the OCCUITence of any of the
following events:
1. Partial or Total Disability. If, in the judgment of the City, Contractor is
unable to perform his duties and responsibilities under this Agreement by
reason of illness, injury or incapacity for three consecutive months, or for
more than three months in the aggregate during any period of twelve (12)
calendar months, during which time City shall continue to compensate
Contractor (with such compensation to be reduced by the amount of any
payments due Contractor for this time period under any applicable disability
benefit programs, including Social Security disability, workers' compensation
and/or disability retirement benefits), this Agreement may be tenninated by
City. In that event, City shall have no further liability or obligation to
Contractor except for (i) unpaid compensation acClUed to the date of
termination (excluding any other severance benefits or payments), and (ii) a
pro rata portion of any performance incentives, referred to in Exhibit B, which
was earned during the period prior to. the date on which Contractor first
became disabled. Contractor agrees, in the event of any dispute regarding this
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Section and if requested by City, to submit to a physical examination by a
licensed physician mutually agreed upon by the Parties, the cost of such
examination to be paid by City.
2. Death. In the event that Contractor dies during the Tenn of this Agreement,
City shall pay to his executors, administrators or personal representatives, as
appropriate, an amount equal to the installment of his compensation payable
for the month in which he dies. Thereafter, City shall have no further liability
or obligation to Contractor's executors, administrators, personal repre-
sentatives, heirs, assigns or any other person claiming under or through him,
except for a pro rata portion of any performance incentives, referred to in
Exhibit B earned during the period prior to the date on whicb Contractor died.
3. Theft, fraud embezzlement, dishonesty or other similar behavior by
Contractor; or
4. Any habitual neglect of duty of Contractor in discharging any of his duties
under this Agreement.
E. Termination for Failure to Make Agreed"UpoD Payments
Should City fail to pay Contractor all 01" any part of the compensation set forth in this
Agreement on the date due, Contractor, at the Contractor's option, may terminate this
Agreement if the failure is not remedied by City within thirty (30) days from the date
payment is due.
25. CONFIDENTIALITY OF DATA AND MATERIAL
A. All ideas, memoranda, specifications, plans, manufacturing procedures, data,
drawings, descriptions, docmnents, discussions or other information developed or
received by or for Contractor and all other written information submitted to
Contractor in connection with the performance of this Agreement shall be held
confidential by Contractor and shall not, without the prior written consent of City, be
used for any purposes other than the perfonnance of the Services nor be disclosed to
an entity not connected with performance of the Services. Such data information or
reports may be viewed by or distributed to third parties only after prior written
approval of City. Nothing furnished to Contractor which is otherwise known to
Contractor or becomes generally known to the related industry shall be deemed
confidential.
B. Contractor shall take reasonable efforts to safeguard any and all City property
entrusted to Contractor's custody or control; however, Contractor shall not be liable
to City for any Joss, damage, or destruction of any such property unless Contractor's
actions constitute negligence or reckless disregard of City's property.
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c. A Party disclosing. information to the other which it considers to be Confidential
Information, shan clearly label that information "Confidential" before disclosing it to
~thout limitation, ~i rejx;ris -and ~alyses, teC~ca1 'imd ~Ii.o~c(" daia,"' siiidl~,
forecasts, trade secrets, research or business strategies, financial or contractual
information, gas or coal reserve information, rates, loads, energy requirements,
certain sales market information, research, developmental, engineering,
manufacturing, technical, marketing, sales, financial, operating, perfonnance, cost,
business and process information or data, know-how, and computer programming or
oth.er written or oral information. Confidential Information may be in any form
whatsoever, including without limitation wiitings, recordings, electronic or oral data,
computer programs, logic diagrams, componen.t specifications, drawings or other
media
D. Contractor acknowledges that City is a public agency subject to the requirements of
the California Public Records Act Cal. Gov. Code section 6250 et seq. City
acknowledges that Contractor may submit information to City that Contractor
considers confidential, proprietary, or trade secret information pursuant the Uniform
Trade Secrets Act (Cal. Civ. Code section 3426 et seq.), or otherwise protected from
discloslll"e pW"SUant to an exemptions to the California Public Records Act
(Gover:nment Code sections 6254 and 6255). Contractor acknowledges that City may
submit to Contractor infonnation that City considers confidential or proprietary or
protected from disclosure pursuant to an exemptions to the Califomia Public Records
Act (Government Code sections 6254 and 6255). Upon request or demand of any
third person or entity not a party to this Agreement ("Requestor") for production,
inspection and/or copying of information designated by a Disclosing Party as
Confidential Information, the Receiving Party as soon pr~ctical but within three (3)
days of receipt of the request, shall notify the Disclosing Party that such request has
been made by telephone call, letter sent via facsimile and/or by US Mail to the
address and facsimile number listed at the end of the Agreement. The Disclosing
Party shall be solely responsible for taking whatever legal steps are necessary to
protect infonnation deemed by it to be Confidential Information and to prevent
release of information to the Requestor by the Receiving Party. If the Disclosing
Party takes no such action~ after receiving the foregoing notice from the Receiving
Party, the Receiving Party shall be permitted to comply with the Requestor's demand
and is not required to defend against it.
E. The Receiving Party may cooperate with the Disclosing Party in any efforts to
prevent release of the Confidential Information; however, the Receiving Party shall
not be required to expend any monies in excess of the cost of notifying the Disclosing
Party by telephone, facsimile and/or mail of the pendency of a demand for the
Confidential Information. So long as the Receiving Party complies with the
provisions of notification set forth in this Agreement, the Receiving Party shall not be
liable for, and Customer and City hereby release each other from, any liability for any
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damages arising from any requirement under the law that the Receiving Party release
Confidential Information to a Requestor, and such release includes the officers,
commissioners, employees, agents. council members, and directors, as those terms
may apply to each Party hereto, without limitation.
F. The Receiving Party may, at its sole expense, institute, or intervene in any
proceeding, in order to protect the Confidential Information from disclosure, and if
the Disclosing Party requests and agrees in writing to indemnify the Receiving Party
from any expense or liability for expenses, the Receiving Party may cooperate
actively in any such action or proceeding; provided, however, that the Receiving
Party shall have no duty to the Disclosing Party to actively cooperate,
notwithstanding an offer by the Receiving Party to provide a complete indemnity.
26. NOTICES
All notices to the Parties shall, unless otherwise requested in writing, be sent to City
addressed as follows;
VERNON
City of It
Attn:~ Bruce V. Malkenhorst, City Administrator
~ 4305 Santa Fe Avenue
.~ V~I~O~, CA 900~~
orbyfacsim.ileat(~! (323) 826-1438
And to Contractor address as follows:
O'Callaghan. LLC
27. COMPLIANCE WITH ETIDCAL STANDARDS
Contractor shall:
a. read Exhibit D, entitled "ETHICAL STANDARDS FOR CONTRACTORS
SEEKING TO ENTER INTO AN AGREEMENT WITH THE CITY OF SANTA
CLARA, CALIFORNIA," attached and incorporated by this reference; and,
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b. execute Exhibit E, entitled "AFFIDA VJT OF COMPLIANCE WITH ETHICAL
STANDARDS" attached and incorporated by this reference.
The Parties acknowledge and accept the terms and conditions of this Agreement as evidenced
by the following signatures of their duly and authorized representatives. It is the intent of the
Parties that this Agreement shall become operative on the Effective Date.
Vernon
CITY OF 5~~MQ, CALIFORNIA
a chartered California municipal corporation
APPROVED FOR FORM:
1kUf31UdilidbJi~ftWN~ Eric T. Fresch
City Attorney
By:
City Manager
LEONIS MALBURG
Mayor
ATTEST:
4305 Santa Fe Avenue
Vernon ~Ca1if011"J.a~ 90058
Telephone: (~(323) 583-8811
Facsimile: (~ (323) 826-1438
~ BRUCE V. MALKENHORST
City Clerk
"City"
O'Callaghan. LLC 9
an individual sole proprietor
By:
Address:
Telephone:
Facsimile:
E-mail:
"Contractor"
AgrcC111l.1nt fVI" Professional SCrviCC6 I Donal O'Callaghan
Typed:
Page 1\ of 11
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AGREEMENT FOR. PROFESSIONAL SERVICES
BY AND BETWEEN CITY OF VERNON
CALIFORNIA
AND
o 'CALLAGHAN, LLC
EXHmIT A
SCOPE OF SERVICES
Section 1.
Scope of Services to be performed by the Contractor
For the Tenn of this Agreement, Contractor shall supply the required
Services to the City, doing business as Silicon Valley Power ("SVP"), to assist the City in
all aspects of planning, developing, licensing, erection, and commissioning of a gas
turbine facility to be located in the City of~ (the "Project"). Contractor shall
utilize all or his internal processes, procedures, skill sets, and. experience. The specific
services will be delivered under the following position description:
Position Description:
Rel>>orts to;
As.an independent contractor, Contractor will determine the method, details, and means
of performing the above-described Services.
Method of Performing Services
Section 2. Specific Duties, Responsibilities and Services During the Term of this
Agreement
Pursuant to an applicable City policies and procedures, Contractor win provide the
Services, of
As directed by the City . Contractor shall be responsible for performing all
required services, including but not limited to, the following:
.
.
.
.
Agrccmcmt for ProfessioJ1aJ Scrvicet; I Donal O'Callaghan
Scope of Services Exhibit A
Page 1 of2
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Sedion 3.
Time Devoted to Work
In the per:fonnance of Contractor's services, the services and the hours Contractor is to
work on any given day will be entirely within Contractor's control. Contractor will
perform its Services for City in a workmanlike manner and in accordance with applicable
industry standards.
Section 4.
Place of Work
Unless otherwise informed by the City to the contrary, Contractor shall perform the
Services required by this Agreement at any place or location, as Contractor shall
determine.
Agreerm...nt for Professional Services I Dona! O'Callaghan
Scope ofSexvices Exhibit A
Pagc2of2
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I4J 016
AGREEMENT FOR PROFESSIONAL SERVICES
BY AND BETWEEN CITY OF VERNON
, CALIFORNIA
AND
o 'CALLAGHAN, LLC
EXHIBIT B
SCHEDULE OF FEES
In no event shall the amount billed to City by Contractor for services under this
Agreement exceed ($.~ dollars, subject to budget
appropriations.
1. Base Compensation
In consideration for Services rendered, the City shall pay the Contractor a fee of eighteen
($18,000) tor each month worked by Contractor from April 7 2005 through .
2005 based upon a standard forty-hour (40-hr) workweek, Monday thro Friday. Such
amount shall fully compensate Contractor and no other incideJltal and ancillary employee
benefits shall be paid associated with the Contractor's Services. Payment of this sum
shall be due and payable within twenty (20) days of receipt by the City of an invoice
from Contractor.
2. Expense Reimbursement
A. Per Diem Rate
During the term of this Agreement, the City will pay Contractor a monthly Per Diem rate
equal to tour thousand ($4,000.00) dollars. Such rate shall commence on the first date of
travel to site and will be all inclusive of local living expenses, lodging, transportation,
meals, and incidental expenses.
B. Project Related Expenses
During the term of this Agreement, the City will reimburse Contractor for project related
expenses, including but not limited to, the following: insurance premiums to the limits
outlined in Exhibit C. travel to project required meetings, airfare, lodging and food. Such
expenses shall be limited to twenty thousand ($20,000.00) dollars.
(1) Upon submission of itemized written monthly invoices, the City shall
reimburse the Contractor specified out of pocket expenses for the
following:
a. Reimbursable out of pocket expenses shall include travel expenses
at cost, with no mark-up. Airfare shall be reimbursed at economy
class, unless economy class seating is unavailable through no fault
Agreement for Professional Services I Donat O'Callaghan.
Schedule of Fees Exhibit B
Page lof 2
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of the Contractor. Reasonable attempts shall be made to make air
travel teservationsin advance in order to take advantage oflower
fares. In the event that travel plans must be canceled or re-
scheduled due no fault of the Contractor, then the City shall pay
for any costs associated therewith; if the travel is canceled or re-
scheduled due to the fault of the Contractor, then the Traveling
party shall bear the expense. Invoices for travel expenses shall be
supported by receipts, and shall be reimbursed in accordance with
this Agreement.
3. State and Federal Taxes
Because Contractor is not City's employee, Contractor is solely responsible for paying all
state and federal taxes or contributions or certain insurance policies, including but not
limited to, the following:
· City will not withhold FICA (Social Security) from Contractor's payments;
· City will not make state or federal unemployment insurance contributions on
Contractor's behalf;
· City will not withhold state or federal income tax from payment to Contractor;
· City will not make disability insurance contributions on behalf of Contractor;
and
· City will not obtain or pay for workers' compensation insurance on behalf of
Contractor.
4. Vacation, Holidays, and Home Leave
This position is considered a salaried consulting position. Normal City observed holidays
and accrued vacation time will be paid. Vacation will be accrued at one week tor eachA
months on assignment.
Agreement for Professional Servlces / DonaI O'Callaghan.
Schedule of Fees Exhibit B
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AGREEMENT FOR PROFESSIONAL SERVICES
BY AND BETWEEN CITY OF VERNON
CALIFORNIA
AND
o 'CALLAGHAN, LLC
EXHIBIT C
STANDARD INSURANCE REQUIREMENTS
Contractor, and its subcontractor(s), if any, shall purchase and maintain the
insurance policies set forth below on all of its operations under this Agreement. Such
policies shall be maintained tor the full tenn of this Agreement and the related warranty
period (if applicable). For purposes of the insurance policies required under this
Agreement, the term "City" shall include the duly elected or appointed council members,
commissioners, officers, agents, employees, and volunteers of the City of Santa Clara,
California, individually or collectively.
1. MINIMUM SCOPE AND LIMITS OF REQUIRED INSURANCE
POLICIES
The following policies shall be maintained with insurers authorized to do business
in the State of California and shall be issued under forms of policies satisfactory
to the City:
Q. COMMERCIAL GENERAL LIABILITY INSURANCE POLICY
(CGL).
Policy shall include coverage at least as broad as set forth in Insurance
Services Office (herein "ISO") Commercial General Liability coverage.
(Occurrence Fonn CG 0001) with policy limits not less than the
following:
$1,000,000 each occurrence (combined single limit);
$1,000,000 for personal injury liability;
$1,000,000 aggregate for products-completed operations; and,
$1,000,000 general aggregate applying separately to this project.
b. AUTOMOBILE LIABILITY POLICY (AL).
This policy shal.1 include a minimum combined single limit of not less than
one million ($1,000,000) dollars for each accident, for bodily injury and/or
property damage.
.c. WORKERS' COMPENSATION AND EMPLOYERS' LIABILITY
INSURANCE POLICY (WC/EL).
Agreeml.-nt for Professional Services I Donal O'Callaghan
Standard Insurance Requirements Exhibit C
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A Worker's Compensation Policy is required only if Contractor has
employees or volunteers. These policies shall include at least the
following coverages and policy limits:
1 . Workers' Compensation insurance as required by the laws of the
State of California; and
2- Employer's Liability Insurance with coverage amounts not less
than one million ($1,000.000) dollars each accident/Bodily Injury
(herein "BI"); one million ($1,000,000) dollars policy limit BI by
disease; and, one million ($1,000,000) dollars each employee BI
by disease.
2. DEDUCTmLES AND SELF-INSURANCE RETENTIONS
Any deductibles and/or self insured retentions which apply to any of the insurance
policies referred to above shall be declared in writing by Contractor and approved
by the City before work is begun pursuant to this Agreement. At the option of the
City, Contractor shall either reduce or eliminate such deductibles or self-insured
retentions as respect the City, its City Council, commissions, officers, employees,
volunteers and agents, or shall provide a financial guarantee satisfactory to the
City guaranteeing payment of losses and related investigations, claim
administration, and/or defense expenses.
3. ENDORSEMENTS
All of the foJlowing clauses and endorsements, or similar provisions, are required
to be made a part of the required insurance policies indicated in parentheses
below:
a. Additional Insureds The City of Santa Clara, its City Council,
commissions, officers and employees are hereby added as additional
insureds in respect to allliability arising out of the Contractor's work for
the City, providing coverage at least as broad as Insurance Services Office
(ISO) Endorsement CO 2010, 1985 Edition, or insurer's equivalent
(CGL);
b. Primary Insurance This policy shall be considered primary insurance in
respect to any other valid and collectible insurance City may possess,
including any self~insured retention City may have, and, any other
insurance City does possess shall be considered excess insurance only and
shall not be called upon to contribute with this insurance (CGL & BAL);
c. Notice of Cancellation No cancellation shall be effective until written
notice has been given at least thirty (30) days prior to the effective date of
Agreement for Professional Services / Donal O'Callaghan
Standard Insurance Requirements Exb.ibit C
Page 2 of3
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such cancellation to City at the address set forth below, except the insurer
may give ten (10) days notice for nonpayment of premium (COL, BAL,
WCIEL & PL); and
4. ABSENCE OF INSURANCE COVERAGE
City may direct Contractor to immediately cease all activities with respect to this
Agreement if it determines that Contractor fails to carry, in full force and effect,
all insurance policies with coverages at or above the limits specified in this
Agreement. Any delays of expense caused due to stopping of work and change of
insurance shall be considered Contractor's delay and expense. At the City's
discretion, under conditions of lapse, City may purchase appropriate insurance
and charge all costs related to such policy to Contractor.
5.
PROOF OF INSURANCE COVERAGE
VERIFICATION
AND
COVERAGE
A Certificate of Insurance, on an Accord form, and implementing endorsements
shall be provided to city by each of Contractor's insurance companies as evidence
of the stipulated coverages prior to commencement of work under this
Agreement, and annually thereafter at least ten (10) days prior to tenn.ination of
existing coverage for the term of this Agreement. City reserves the right to require
complete, certified copies of all required insurance policies, including
endorsements affecting the coverage required by this Agreement at any time. All
of the insurance companies providing insurance for Contractor shall have, and
provide evidence of, a Best Rating Service rate of "A VI" or above.
The Certificate of InSUI'"cmce and coverage verification and all other notices related
to cancellation shall be mailed to:
Office of the City Clerk
Attention: ~ Bruce V. Malkenhorst
~ " 4305 Santa Fe Avenue
~~ Vernon, CA 90058
Agreement for ProfessioluU Services I Dona] O'Callaghan
Standard Insurance Requirements Exhibit C
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AGREEMENT FOR PROFESSIONAL SERVICES
BY AND BETWEEN CITY OF VERNON
, CALIFORNIA
AND
o 'CALLAGHAN, LLC
EXHIBIT D
ETHICAL STANDARDS FOR CONTRACTORS
SEEKING TO ENTER INTO AN AGREEMENT WITH
THE CITY OF SANTA CLARA, CAJ,:.IFORNIA
Termination of Agreement for Certain Acts
A. The City may, at its sole discretion, terminate this Agreement in the event anyone
or more of the following occurs:
1. If a Contractor I does any of the following:
a. Is convicted2 of operating a business in violation of any Federal,
State or local law or regulation;
b. Is convicted ofa crime punishable as a felony involving
dishonesty3 ;
c. Is convicted of an offense involving dishonesty or is convicted of
fraud or a criminal offense in. connection with: (1) obtaining; (2)
attempting to obtain; or, (3) performing a public contractor
subcontract;
d. Is convicted of any offense which indicates a lack of business
integrity or business honesty which seriously and directly affects
the present responsibility of a City contractor or subcontractor;
and/or,
For purposes of this Agreement, The word ..Contractor" (whether a person or a legal entity) means
any of the following: an owner OT co-owner of a sole proprietorship; a person who controls or who has the
power to control a business entity; a general partner of a partnership; a principal in a joint venture; or a
primary cOIpOx:ate stockholder [Le., a peTSon who owns more than tenpefcent (100/0) of the outstanding
stock of a corporation] and who is active in the day to day operations of that corporation.
2
For purposes of this Agreement, the woni<\ "convicted" or "conviction" mean a judgment Or
conviction of a criminal offense by any court of competent jurisdiction, whether entered upon a verdict or a
plea. and includes a conviction entered upon a plea of nolo contendere within the past five (5) years_
3
As used herein. "dishonesty" includes, but is not limited to, embezzlement, theft, forgery, bnbery,
falsification OT destruction of n..'Cotds, making false statements, fuilure to pay tax obligations, receiving
stolen property, collusion or conspiracy.
Agreement for Professional Services / Donal O'Callaghan
Ethical Standards for Contractors Exhibit D
Page 1 of2
......"...... .....n...o.. ,vo ~.~o o~uu
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e. Made (or makes) any false statement(s) or representation(s) with
respect to this Agreement.
2. If fraudulent, criminal or other sefiously improper conduct of any officer,
director, shareholder. partner, employee or other individual associated
with the Contractor can be imputed to the Contractor when the conduct
occurred in connection with the individual's performance of duties for or
on behalf of the Contractor, with the Contractor's knowledge, approval or
acquiescence, the Contractor's acceptance of the benefits derived from the
conduct shall be evidence of such knowledge, approval or acquiescence.
B. The City may also terminate this Agreement in the event anyone OT more of the
following occurs:
1. The City detennines that Contractor no longer has the financial capability4
or business experiences to perform the tenns of, or operate under, this
Agreement; or,
2. If City determines that the Contractor fails to submit information, or
submits false information, which is required to perform or be awarded a
contract with City, including, but not limited to, Contractor's failure to
maintain a required State issued license, failure to obtain a City business
license (if applicable) or failure to purchase and maintain bonds and/or
insurance policies required under this Agreement.
C. In the event a prospective Contractor (or bidder) is roIed ineligible (debarred) to
participate in a contract award process or a contract is terminated pursuant to
these provisions, Contractor may appeal the City's action to the City Council by
filing a written request with the City Clerk within ten (10) days of the notice
given by City to have the matter heard. The matter will be heard within thirty (30)
days of the filing of the appeal request with the City Clerk. The Contractor will
have the burden of proof on the appeal. The. Contractor shall have the opportunity
to present evidence, both oral and documentary, and argument.
4
Contractor becomes in.'lOlvCl1t. transfers assets in fraud of creditors, makes an assignment for the
benefit of creditors, files a petition under any section or chapter of the federal Banlauprcy Code (11
U.S.C.), as amended, or under any sjm.ilar law or statute of the United States or any stare thereof, is
adjudged bankrupt or insolvent in proceedings under such laws, or a Teceiver or trustee is appQinted for all
or substantially all of the assets of Contractor.
Loss ofpersonneJ deemed essential by the City fOr the successful performance of the obligations
of the Contractor to the City.
Agreement for Prof~sional Services / Donal O'CalJaghan
Ethical Standards for ContractOrs Exhibit D
Page 2 of2
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#0
, ~
Ifl. j.at
AGREEMENT FOR PROFESSIONAL SERVICES
BY AND BETWEEN CITY OF VERNON
CALIFORNIA
AND
o ' CALLAGHAN, LLC
EXHIBIT E
AFFIDA VrT OF COMPLIANCE WITH ETHICAL STANDARDS
[CITY OF ~~~f,~]
VERNON
I, 0' CALLAGHAN, LLC , an individual sole proprietor, being first duly sworn, depose
and say that I have read and understand the language, entitled "ETHICAL STANDARDS
FOR CONTRACTORS SEEKING TO ENTER INTO AN AGREEMENT WITH THE CITY
OF SANTA CLARA, CALIFORNIA" (herein "Ethical Standards") set forth in Exhibit D. I
have authority to make these representations on my own behalf or on behalf of the legal
entity identified herein. I have examined appropriate business records and I have made
inquiry of those individuals potentially included within the definition of '"Contractor'
contained in the Ethical Standards.
Based on my review of the appropriate documents and the necessary inquiry responses, I
hereby state that n.either the business entity nor any individual(s) belonging to a category
identified in footnote #1 of Exhibit D [i.e., owner or co-owner of a sole proprietorship,
general partner, person who controls or has power to control a business entity, etc.] has
been convicted of anyone or more of the crimes identified in Exhibit D within the past
five (5) years. The above assertions are true and correct and are made under penalty of
petjury Wlder the laws of the State of California.
an individual sole proprjetor
o 'Callaghan, LLC
(print Name Here)
NOTARY'S ACKNOWLEDGMENT TO BE ATTACHED
Please execute the affidavit and attach a notary public's acknowledgment of execution of
the affidavit by the signatory. If the affidavit is on behalf of a corporation, partnership, or other
legal entity, the entity's complete legal name and the title of the person. signing on behalf of the
legal entity shall appear above. Written evidence of the authority of the person executing this
affidavit on behalf of a corporation, partnership, joint venture, or any other legal entity, other than
a sole proprietorship, shall be attached.
CITY COUNCIL
LEONIS C. MALBURG
Mayor
THOMAS A. YBARRA
Mayor Pro- Tem
WM. "BILL" DAVIS
Councilman
H. "LARRY" GONZALES
Councilman
W. MICHAEL McCORMICK
Councilman
BRUCE V. MALKENHORST
City Administrator / City Clerk
Chief Executive Officer of
Light & Power
ERIC T. FRESCH
City Attorney
City Council
City of Vernon
Honorable Members:
JOHN KARNS
Karns & Karabian
General Counsel
KEVIN WILSON
Director of Community Services & Water
STEVEN E. PARKER
Fire Chief
SOL BENUDIZ
Police Chief
LEWIS J. POZZEBON
Director of Environmental Health
CITY HALL
4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058
TELEPHONE (323) 583-8811
RORY BURNETT
Gursey, Schneider & Co. LLP
C~ty Accountant
April 121 2005
r. rrJ...~ 1",[00 Ml'};lt
. r" ~ \<, rl 'b
. C~ ~'{1
The professional services of OICallaghan LLC have been retained on a
month-to-month basis to assist the City in all aspects of developingl
erectionl commissioning and commercial operation of the Malburg
Generating Station (UMGS"). The base compensation for the scope of
work is $18/000.00 per monthl commencing April 71 20051 with a monthly
per diem rate of $5/000.00 and reimbursement of related expenses.
This has been reviewed by the City Attorney and it is hereby
recommended that the hiring of OICallaghan LLC be ratified and
authorization be granted to the City Attorney to prepare an agreement.
BVM/ke
Very truly yours 1
~ L/. ~Y5f:
ttuce V < Malkenhorst 4'7
City Administrator/City Clerk
"Exclusively Industrial"
Rueda, Karina
From:
Sent:
To:
Cc:
Subject:
Lehr, Judy
Wednesday, July 20, 2005 3:07 PM
Giron, Nelly
Rueda, Karina
RE: agreements
You will have to ask Bruce about Donal's agreement. As to the Marelich Amendment, Donal hasn't approved it to be
finalized--he and Marelich are still negotiating Exhibit C.
-----Original Message-----
From: Giron, Nelly
Sent: Wednesday, July 20, 2005 3:04 PM
To: Lehr, Judy
Cc: Rueda, Karina
Subject: agreements
what is the status for the following:
Donal O'Callaghan's Agreement and the Fourteenth Amendment to the Marelich Agreement? Thanks.
Nelly Giron
City Clerk's Office
1
"'
,.
c2------
CITY ATTORNEY'S OFFICE
INTER OFFICE MEMORANDUM
DATE:
April 11, 2005
Corrected
FROM:
Bruce V. Malkenhorst, City Administrator/City
Eric T. Fresch, City Attorney ~
Professional Services Agreement ~~
Clerk 41 g'1?- ')-
(IP.
TO:
SUBJECT:
I recommend that the City ratify the hiring of O'Callaghan LLC
effective April 7, 2005 and authorize the execution of a month-
to-month Professional Services Agreement with O'Callaghan LLC.
The Agreement requires O'Callaghan to assist the City in all
aspects of developing, erection, commissioning and commercial
operation of the Malburg Generating Station ("MGS"). The base
compensation for the scope of work is $18,000 per month,
commencing April 7, 2005, with a monthly per diem rate of
$5,000. Additionally, O'Callaghan will be reimbursed for
project related expenses, which shall be limited to $20,000 for
the term of the contract. O'Callaghan will be required to
submit monthly invoices, detailing the amount of hours worked
and the specific projects.
I look forward to discussing this with you.
EF/bvmjr
cc: JLehr
~
CITY ATTORNEY'S OFFICE
INTER OFFICE MEMORANDUM
DATE:
April 11, 2005
TO:
FROM:
Bruce V. Malkenhorst, City Administrator/City Clerk
Eric T. Fresch, City Attorney Cf ~~
Professional Services Agreement
SUBJECT:
I recommend that the City ratify the hiring of Donal O'Callaghan
effective April 14, 2005 and authorize the execution of a month-
to-month Professional Services Agreement with Donal O'Callaghan.
The Agreement requires O'Callaghan to assist the City in all
aspects of developing, erection, commissioning of the Malburg
Generating Station ("MGS") as well as the review and audit of
all bills, change orders, and change estimates submitted to date
by MGS general contractor UMM/T. The base compensation for the
scope of work is $18,000 per month, commencing April 7, 2005,
with a monthly per diem rate of $5,000. Additionally,
O'Callaghan will be reimbursed for project related expenses,
which shall be limited to $20,000 for the term of the contract.
O'Callaghan will be required to submit monthly invoices,
detailing the amount of hours worked and the specific projects.
I look forward to discussing this with you.
EF/bvmjr
cc: JLehr
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