Resolution No. 8738
1
RESOLUTION NO. 8738
2
3
4
5
6
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION OF
SERVICES AGREEMENT BY AND BETWEEN THE CITY OF
VERNON AND CALPINE POWER SERVICES, INC. FOR THE
MALBURG GENERATING STATION PROJECT
7 WHEREAS, the City of Vernon ("City") 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 adopte~ 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 start-up and commissioning managerial services to assist the
17 City in the development, erection, commissioning and commercial
18 operation of the Malburg Project; and
19 WHEREAS, the City has determined that Calpine Power Services,
20 Inc. ("Calpine") possesses the technical knowledge and expertise to
21 furnish the management services required by the City; and
22 WHEREAS, by letter dated April 28, 2005, Bruce V.
23 Malkenhorst, City Administrator/City Clerk, recommended that an
24 agreement for commissioning and start-up manager services with Calpine
25 be approved and executed; and
26 WHEREAS, the City Council of the City of Vernon has
27 determined that, pursuant to the provisions of subsection (a) of
28 Section 2.27 of the Vernon City Code, it is in the public interest and
1 necessity to enter into a contract with Calpine.
2 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
3 CITY OF VERNON AS FOLLOWS:
4
SECTION 1:
The City Council of the City of Vernon hereby
5 finds and determines that the recitals contained hereinabove are true
6 and correct.
7
SECTION 2:
The City Council of the City of Vernon hereby
8 approves the Services Agreement and Service Order with Calpine, in
9 substantially the same form as the copy which is attached hereto as
10 Exhibit A and incorporated by reference.
11
SECTION 3:
The City Council of the City of Vernon hereby
12 authorizes the Mayor to execute said Contract for, and on behalf of,
13 the City of Vernon and the City Clerk is hereby authorized to attest
14 thereto.
15
SECTION 4:
The City Council of the City of Vernon hereby
16 authorizes the Chief Executive Officer of the Light & Power
17 Department, or his designee, to execute any and all documents
18 necessary to implement and carry out the terms and conditions of the
19 Services Agreement.
20
SECTION 5:
The City Council of the City of Vernon hereby
21 directs the City Clerk, or his designee, to send one fully executed
22 Contract to:
23
24
25
26
Calpine Power Services, Inc.
Attn. President
104 Woodmere Road
Folsom, CA 95630
/ / /
/ / /
/ / /
27
28
- 2 -
1
SECTION 6:
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.
APPROVED AND ADOPTED this 4th day of May, 2005.
/""
~~~~'-4-~
"'-~ONIS C. MALBU~, Maycfr
4
5
6
ATTES~ ~.
~-V' .
BRUCE V. MALKENHORST, City Clerk .
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 3 -
1 STATE OF CALIFORNIA
2
3
ss
COUNTY OF LOS ANGELES
4
I, BRUCE V. MALKENHORST, City Clerk of the City of Vernon, do
hereby certify that the foregoing Resolution, being Resolution No.
5
6
7
8
9
10
11
12
13 (SEAL)
8738, was duly adopted by the City Council of the City of Vernon at a
regular meeting of the City Council duly held on Wednesday, May 4,
2005, and thereafter was duly signed by the Mayor of the City of
Vernon.
A--~~
BRUCE V. MALKENHORST, City Clerk
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 4 -
. .
, .
EXHIBIT
A
SF #671759 v2
. .
SERVICES AGREEMENT
BETWEEN
BUYER corporation
AND
DATED AS OF
. .
TABLE OF CONTENTS
Page
1. SERVICE ORDERS;..........................................................................................................1
2. TERM ..................................................................................................................................1
3 . COMPENSATION ...... ...... ....... ................. ........... ........................... ....................................1
4. PAYMENT..........................................................................................................................l
5 . WARRANTY ......................................................................................................................2
6. CHANGES AND EXTRA SERVICES.... ................................ ...... ....................... ..............3
7. TIME OF PERFORMANCE. .................. ................ ......... .... ............. .... ..............................3
8. PROJECT SITE...................................................................................................................3
9. TERMINATION ..................................................................................................................3
10. INSURANCE...................................................................................... ~................................4
11. SUBCONTRACTING ....................................ERROR! BOOKMARK NOT DEFINED.
12. ASSIGNMENT AND DELEGATION .......... .................... ..................................................5
13. INDEMNITY .......................................................................................................................5
14. DOCUMENTS.....................................................................................................................6
15. NON-DISCLOSURE OF INFORMATION .............. ......... ............ .....................................6
16. AUDITS AND DISPUTES... ... ......... ......................... .......................................................... 7
17. GOVERNING LAW ............................................................................................................7
18. NOTICES ........... ........ ........................... .............. ...................................... ...........................7
19. W AIVER..............................................................................................................................8
20. INVALIDITY OF PROVISIONS ........................................................................................8
21. INDEPENDENT CONSULTANt. ....................... ................. ........ ....... ................ ..............8
22. LAWS, REGULATIONS AND COMPANY RULES ........................................................9
23 . SURVIVAL.........................................................................................................................9
24. ENTIRE AGREEMENT......................................................................................................9
25. AMENDMENTS.................................................................................................................9
26. HEADINGS.........................................................................................................................9
27 . BINDING EFFECT .............................................................................................................9
28 . ATTORNEYS' FEES...........................................................................................................9
29 . HEALTH AND SAFETY PROGRAMS ....................... .......... ...... ..... .............. .............. .....9
30. LIENS ................................................................................................................................1 0
Calpine Power Services, mc.
Services Agreement
August 22, 2003
SF#671759 v2
. .
31. LIMITATION OF LIABILITY AND CONSEQUENTIAL DAMAGES .........................10
30. COUNTERPARTS ............................................................................................................11
11
Calpine Power Services, inc.
Services Agreement
August 22, 2003
SF#671759 v2
. .
SERVICES AGREEMENT
THIS SERVICES AGREEMENT (this "Agreement") is made as of ,2005, by and
between [BUYER ENTITY],' a ("BUYER"), and CALPINE POWER
SERVICES, Inc., a Delaware corporation ("CONSULTANT").
WHEREAS, BUYER desires to enter into this Agreement with CONSULTANT to set forth the
general terms and conditions under which CONSULTANT shall perform such services ("Services") as
may from time to time be agreed upon in separate service orders ("Service Orders") related to the
services required by BUYER, and
WHEREAS, CONSULTANT desires to perform the Services as an independent CONSULTANT
to BUYER,
NOW THEREFORE', in consideration of the mutual covenants and agreements set forth herein,
the parties hereto agree as follows:
1. SERVICE ORDERS
CONSULTANT agrees to perform the Services described in each Service Order, with the
individual(s) identified in each Service Order (as to each Service Order, the "Scope of
Services") entered into and executed by the parties from time to time. Each Service Order shall
be separately numbered and each Service Order is hereby incorporated herein as if fully set forth
herein. Each Service Order shall be subject to all of the terms and provisions hereof, unless
expressly otherwise provided in any Service Order. Each project in connection with which the
parties enter into a Service Order is herein referred to as a "Project". Any services, work or
supplies which may be performed or provided by CONSULTANT with respect to a Project prior
to the actual date of execution by CONSULTANT and BUYER of an appropriate Service Order
shall nonetheless be deemed to be performed under this Agreement and all of the provisions
hereof shall apply to such services, work and supplies.
2. TERM
This Agreement shall be for a term lasting one (1) years from the date first specified above,
unless earlier terminated pursuant to this Agreement or extended by mutual agreement of the
parties.
3. COMPENSATION
CONSULTANT shall be compensated for the Services under each Service Order in the manner
described in the Service Order. In particular, compensation to CONSULTANT for the Scope of
Services under each Service Order shall be calculated as described in such Service Order,
whether on a time and materials basis, hourly rates subject to a fixed rate schedule with
maximum limits, "cost plus," or other basis as may be described in said Service Order.
4. PAYMENT
4.1. By the 15th day of each month applicable during the performance of each Service Order,
CONSULTANT shall prepare and submit to BUYER a separate reasonably itemized
invoice. for each such Service Order covering the Services rendered by CONSULTANT
1
Calpine Power Services, Inc.
Services Al!Teement
August 22, 2003
SF#671759v2
. .
during the preceding month under such Service Order, prepared in accordance with the
compensation provisions of each applicable Service Order, along with a summary
statement of all amounts due and outstanding under this Agreement.
4.2. Itemized invoices shall include, in addition to any special information required by the
applicable Service Order, an itemization of the Services performed, the time expended by
each person on each element of the Services performed and an itemization of each
reimbursable expense authorized under the Service Order, together with copies of
relevant receipts or other reasonable substantiation.
4.3. All properly invoiced amounts shall be due and paid to CONSULTANT within thirty
(30) days after invoice receipt.
4.4. Amounts not paid when due shall bear interest, from the date payment was due to and
including the date of actual payment, at a ~ annum rate equal to the lesser of (i) the
prime lending rate quoted in the Wall Street Journal on the date such overdue amount
first became due, plus two percent (2%), or (ii) the maximum rate permitted under
applicable law.
5. WARRANTY
5.1. CONSULTANT shall perform all Services in accordance with Prudent Industry
Standards (as defined below) and in accordance with the terms of this Agreement and the
Service Order applicable to such Services. If CONSULTANT fails to perform the Scope
of Services in accordance with the requirements of this Article 5, CONSULTANT shall,
upon written notice from Buyer, promptly re-perform the Scope of Services to the extent
necessary and correct any deficiencies in the Scope of Services at CONSULTANT's cost
so as to cause the Scope of Services to be performed as required by this Article 5. With
respect to any particular work item in the relevant Scope of Services, CONSULTANT's
duty to re-perform and/or correct the Scope of Services shall apply only for a period of
twelve (12) months following completion of such item. At no time will
CONSULT ANA T have a duty to re-perform or correct any aspect of any Scope of
Services unless it is first notified in writing by Buyer concerning the need to undertake
such re-performance or correction.
5.2. THE WARRANTIES CONTAINED IN THIS ARTICLE 5 AND THE REMEDIES
PROVIDED HEREIN FOR ANY BREACH THEREOF ARE EXCLUSIVE AND THEY
ARE GIVEN AND ACCEPTED IN LIEU OF ANY IMPLIED WARRANTIES,
INCLUDING WARRANTIES OF MERCHANT ABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, AND IN LIEU OF ANY OBLIGATION, LIABILITY,
RIGHT, CLAIM OR REMEDY AT LAW OR IN EQUITY ARISING OUT OF ANY
BREACH OF SUCH WARRANTIES, WHETHER SUCH WARRANTIES OR
REMEDIES ARISE UNDER CONTRACT OR ANY OTHER LEGAL OR
EQUITABLE THEORY OR PRINCIPLE INCLUDING NEGLIGENCE.
5.3. As used herein the term "Prudent Industry Standards" means those practices, methods
and safety standards engaged in or approved by a significant portion of the relevant
industry with respect to services comparable to the relevant Services being provided by
CONSULTANT hereunder in connection with projects comparable in size, location and
other particulars to the Project which, in the exercise of reasonable judgment at the time
2
Ca1pine Power Services, Inc.
Services Al!feement
August 22, 2003
SF#671759 v2
the decision was made, based on information then known to CONSULTANT, would
reasonably have been expected to achieve the desired results consistent with good
business practices, safety considerations and expediency, it being understood that
Prudent Industry Standards are not limited to any particular or optimal practice or
practices, but instead include a range of acceptable practices, methods and acts.
6. CHANGES AND EXTRA SERVICES
6.1. Provided that BUYER gives reasonable advance notice to CONSULTANT, BUYER may
propose in writing changes to CONSULTANT's work within the Scope of Services
described in any particular Service Order. CONSULTANT may also initiate such
notification, upon identifying a condition that may change the Scope of Services as
agreed at the time of execution of the Service Order covering such Scope of Services.
BUYER and CONSULTANT shall reach agreement on any such proposed change and its
effect on the cost and time for performance under any Service Order, and they shall
confirm such agreement in writing as an amendment or supplement to such Service
Order. In the event that the parties cannot reach agreement as to the proposed change,
CONSULTANT shall not be obligated to perform such change,
6.2. CONSULTANT is not obligated to perform any such changes, except upon such written
amendment or supplement; provided that if, upon BUYER's written request,
CONSULTANT begins work in accordance with a proposed change, BUYER shall be
liable to CONSULTANT for payment with respect to CONSULTANT's work pursuant
to such change, unless and until BUYER notifies CONSULTANT to stop work on such
change.
7. TIME OF PERFORMANCE
CONSULTANT shall keep BUYER reasonably advised of the progress of CONSULTANT's
performance of the Services. In the event that performance of the Services is delayed for any
reason the time and compensation for the performance of the Services may be equitably adjusted
pursuant to Section 6.1 above.
8. PROJECT SITE
Subject to the more particular provisions of any Service Order, CONSULTANT and BUYER
shall cooperate with each other with a view towards ensuring that the Services are performed in.
such manner as to cause a minimum of interference with BUYER's operations and the operations
of other CONSULTANTs at each Project site. Each Project site includes the power plant areas,
all buildings, offices and other locations where Services are to be performed, including any
access roads. CONSULTANT shall be responsible for the safe transportation to the Project site
and packing in proper containers and storage of any equipment required for performing the
Services.
9. TERMINATION
9.1. Either party may terminate this Agreement (or any individual Service Order) upon seven
(7) days' prior written notice, in the event of substantial failure by the other party to
perform in accordance with the terms of this Agreement (or such Service Order) through
no fault of the terminating party; provided that such notice shall specify in reasonable
3
Ca1pine Power Services,.fuc,
Services A!!Teement
August 22, 2003
SF#671759 v2
, .
detail the nature of such substantial failure of performance; and further provided that if
during such seven (7) day period the defaulting party cures the default, this Agreement
(or such Service Order) shall not be terminated. Upon termination of this Agreement (or
any individual Service Order), unless otherwise instructed within the notice of
termination, CONSULT ANT shall discontinue its Services as soon as reasonably
possible thereafter.
9.2. In addition to the foregoing, either party may in its sole discretion, with or without cause,
terminate this Agreement on a going forward basis upon fifteen (15) days' written notice
to the other party.
9.3. Any termination of this Agreement (or any individual Service Order) pursuant to this
Article 9 shall be without prejudice to the rights and obligations of the parties under this
Agreement (and any applicable Service Orders) with respect to any Services previously
provided by CONSULTANT, which rights and obligations shall survive such
termination. Without limiting the generality of the foregoing, it is agreed that, upon any
early termination of Services, in part or in total, BUYER shall make payment to
CONSULTANT for the Services rendered and fees earned through the date of
termination within thirty (30) days of the date CONSULTANT submits its invoice.
10. INSURANCE
10.1. CONSULTANT shall maintain in full force and effect during the term of this
Agreement, at its sole cost and expense, the insurance described below. A certificate of
insurance evidencing such coverages shall be provided to BUYER upon written request
of BUYER.
10.1.1 Commercial general liability insurance, including bodily injury, property
damage, independent CONSULTANTs, products/completed operations,
contractual, and personal injury liability, with a combined single limit of
$1,000,000 each occurrence.
10.1.2 Excess liability coverage with a combined single limit of $ 1,000,000.
10.1.3 State Workers Compensation insurance with statutory limits, and Employers
Liability insurance with limits of not less than $1,000,000.
10.1.4 Business automobile liability insurance covering owned, non-owned and hired
automobiles for a combined single limit of $1,000,000.
10.2. All insurance policies shall be endorsed to provide that all insureds and additional
insureds thereunder are given thirty (30) days' advance notice of cancellation, non-
renewal or material change.
10.3. BUYER and its affiliates shall be named as an additional insured, to the extent of the
indemnity obligations of CONSULTANT in this Agreement, under each policy listed
above (except for the workers compensation policy). In addition to BUYER and its
affiliates, any of the companies listed on Service Order(s) hereunder as an additional
insured shall be designated as additional insureds on CONSULTANT's insurance
policies in accordance with this Article 10.
4
Ca1pine Power Services, Inc.
Services Al!reement
August 22; 2003
SF#671759 v2
10.4. BUYER shall obtain and maintain in full force and effect during the term of this
Agreement, at its sole cost and expense, all-risk property insurance, including coverage
for testing and commissioning, in an amount equal to the full replacement cost value
with respect to any equipment, parts, materials or other property of BUYER or property,
plant and equipment constituting part of the Project where CONSULTANT is
performing its Services ("BUYER/Owner Property"). BUYER shall be liable for all
deductible amounts under any such all-risk property coverage, and BUYER shall have
full care and custody, and shall bear all risk of physical loss or damage with respect to,
such BUYER/Owner Property during any period that CONSULTANT is performing the
Services.
11. ASSIGNMENT AND DELEGATION
Neither BUYER nor CONSULTANT may assign, sell, transfer or otherwise dispose of their
rights under this Agreement, nor (subject to CONSULTANT's subcontracting rights under
Article 11 above) may BUYER or CONSULTANT delegate its duties under this Agreement, in
each case without the prior written approval of the other party, not to be unreasonably withheld.
Any such unauthorized attempted assignment or delegation shall be void and unenforceable.
12. INDEMNITY
12.1. Subject to Section 13.3 below, CONSULTANT agrees to protect, defend, indemnify and
hold harmless BUYER, each Project owner, each Project lessee (if any), all Project
related lenders, each of the foregoing parties' shareholders, partners and other equity
holders, and all of the foregoing parties' affiliates, employees, directors, agents and
representatives (collectively, "Buyer Indemnitees"), from and against any and all third
party liabilities, losses, damages, claims, penalties, fines, liens and demands
(collectively, "Liabilities"), and all reasonable costs and expenses associated therewith
incurred by the Buyer Indemnitees, including without limitation Liabilities associated
with personal injury or death (including without limitation injury to or death of a Buyer
Indemnitee or its employees) or damage to property (excluding property of Buyer
Indemnitees), determined pursuant to a final judgment by a court of competent
jurisdiction to have been caused by the negligence of any of the CONSULTANT
Indemnitees (as defined below).
12.2. Subject to Section 13.3 below, BUYER agrees to protect, defend, indemnify and hold
harmless CONSULTANT, its SUB CONSULTANTs, and each of the foregoing parties'
shareholders, partners and other equity holders, and all of the foregoing parties'
affiliates, employees, directors, agents and representatives (collectively,
"CONSULTANT Indemnitees"), from and against any and all Liabilities, and all
reasonable costs and expenses associated therewith incurred by the CONSULTANT
Indemnitees, including without limitation Liabilities associated with personal injury or
death (including without limitation injury to or death of a CONSULTANT Indemnitee or
its employees) or damage to property (excluding property of CONSULTANT
Indemnitees), determined pursuant to a final judgment by a court of competent
jurisdiction to have been caused by the negligence of any of the Buyer Indemnitees.
12.3. The indemnification and other protections provided to a Buyer Indemnitee or a
CONSULTANT Indemnitee, as the case maybe, under Section 12.1 or Section 12.2 shall
not extend to Liabilities insofar as the same are caused by the negligence of the
5
Calpine Power Services, mc,
Services Allreement
August 22, 2003
SF#671759 v2
:
particular Indemnitee claiming indemnification, it being understood that the concept of
comparative negligence shall be applied to apportion Liabilities to the extent jointly
caused by the negligence of a Buyer Indemnitee and a CONSULTANT Indemnitee.
12.4. An indemnifying party (an "Indemnitor") shall defend the Indemnitee(s) by counsel of
the Indemnitor's selection reasonably satisfactory to the Indemnitee(s), with respect to
any Liabilities within' the indemnification obligations of this Article 13. Upon selection
and approval of such counsel, the Indemnitor shall control the defense. If the Indemnitor
fails to provide such a defense, the Indmenitee(s) may undertake their own defense at the
expense of the Indemnitor. The Indemnitee(s) shall provide the Indemnitor prompt
written notice of any asserted Liabilities and actions indemnified against hereunder and
shall cooperate with the Indemnitor in the defense thereof. The Indemnitee(s) shall have
the right, at their own expense, to retain co-counsel of the Indemnitee(s)' choice. The
Indemnitee(s) shall not settle or compromise any Liabilities or other actions indemnified
against hereunder without the prior written consent of the Indemnitor.
13. DOCUMENTS
The parties hereto agree that CONSULTANT shall turn over to BUYER all written Project
information that is confidential or proprietary ("Project Information") previously provided by
BUYER to CONSULTANT, including all copies thereof, when and as requested during the term
of this Agreement (except to the extent such Project Information is needed by CONSULTANT to
complete the related Services) and, in any event, when the Services under all Service Orders have
been completed. All such Project Information, including all copies thereof, shall be the property
of BUYER.
14. NON-DISCLOSURE OF INFORMA nON
14.1. CONSULTANT agrees not to use the Project Information for any purpose whatsoever
except to perform the Services as provided in this Agreement.
14.2. The obligations undertaken pursuant to this Article shall not apply to such part of the
Project Information which BUYER has not or does not continue to treat as secret and
confidential or which is or has become published or otherwise generally available to the
public, other than as a consequence of the willful or negligent act or omission of
CONSULTANT or any of its employees, or which, at the time of disclosure to
CONSULTANT, was already known to or in the lawful possession of CONSULTANT
and not known by CONSULTANT to be subject to any other confidentiality agreement
with BUYER.
14.3. CONSULTANT shall impose corresponding obligations of confidentiality on its
employees and SUBCONSUL T ANTs involved in the performance of the Services prior
to making the Project Information available to them.
14.4. It shall no! be a breach of the confidentiality obligations hereof for CONSULTANT to
disclose Project Information where, but only to the extent that, such disclosure is
required by law or applicable legal process.
6
Ca1pine Power Services, Inc.
Services Aereement
August 22, 2003
SF#/i71759 v2
J
14.5. The obligations under this Article 15 shall survive for a period of one (1) year following
termination of this Agreement (or such other period to which the parties shall agree in
connection with any termination).
15. AUDITS AND DISPUTES
15.1. BUYER reserves the right to audit, at any and all reasonable times, all ,records of
CONSULTANT pertaining to the Services, including, without limitation, labor hours,
computer usage, cost of materials, reimbursable expenses (if allowed) and any and all
costs charged to BUYER, during, and for a period of six months following, the term of
this Agreement. Such audit right shall not extend, however, to any fixed amounts
provided in a Service Order, including, without limitation, any fixed fee, lump-sum
amount, fixed rate or agreed upon multiplier.
15.2. CONSULTANT and BUYER shall make every reasonable attempt to resolve in an
amicable way any dispute concerning the interpretation or the performance of this
Agreement, including by way of making senior management available to discuss the
dispute and scheduling one or more face-to-face meetings in connection therewith. Any
dispute which cannot be resolved by the parties hereto within thirty (30) days (as such
period may be extended from time to time by written agreement of CONSULTANT and
BUYER) from the date of written notice by either party, shall be resolved by a court of
competent jurisdiction unless the parties agree to arbitration or other alternative dispute
resolution.
16. GOVERNING LAW
This Agreement shall be governed by and be construed in accordance with the laws of the State
of California, excluding choice of law principles thereof that would require application of the
laws of another jurisdiction.
17. NOTICES
17.1. Any and all notices, invoices and other communications under this Agreement shall be in
writing and shall be deemed to have been delivered upon actual receipt thereof, and shall
be addressed as follows:
If to BUYER:
BUYER - Project Site
Project Address as listed on Service Order
With copy to:
[TBD]
7
Ca1pine Power Services, Inc.
Services Al!feement
August 22, 2003
SF#671759 v2
t
If to CONSULTANT:
[CONSULTANT]
[Contract address]
[Contract address]
Attn: Contract Name
Phone: ( )
Fax: ( )
With copy to:
[TBD]
17.2. Notices and other communications may be sent by telefax; provided however, that any
notices or other communications sent by telefax shall within two (2) days after dispatch
of such telefax be delivered in writing by courier or U.S. Mail to the address set forth
above. In any case, notices shall only be deemed delivered if actually received in
accordance with Section 18.1 above.
18. WAIVER
Except as expressly provided by this Agreement or by any Service Order, no waiver of any term
or condition of this Agreement shall be valid unless made in writing and executed on behalf of
the waiving party hereto by a duly authorized representative of that party and specifying the
nature and extent of such waiver. Such waiver shall in no event be construed to be a general
waiver of any of the terms and conditions contained in this Agreement, but the same shall be
strictly limited to the extent and occasion specified in such signed writing. Failure on the part of
the party to complain of any act or failure to act on any complaint of the other party, irrespective
of how long such failure continues, shall not constitute a waiver by such party of its rights
hereunder, except to the extent such result is expressly provided for under this Agreement or
under any Service Order.
19. INVALIDITY OF PROVISIONS
If any provisions of this Agreement are or become invalid, the validity of the remaining
provisions shall not be affected thereby. The parties hereto shall jointly seek an arrangement
having a legal and economic effect, which will be as similar as possible to the invalid provisions.
If an agreement on the substitution cannot be reached within six (6) months from the date both
parties first become aware, or should have become aware, of the likely invalidity of such
provision, the question of which substitution is reasonably required shall be decided as provided
in Article 16.
20. INDEPENDENT CONSULTANT
CONSULTANT acknowledges and agrees that it is an independent CONSULTANT and that the
performance of the Services shall be entirely under CONSULTANT's supervision, direction and
control, subject to advisory contacts with, periodic reporting to, and compliance with constraints
imposed by BUYER consistent with the terms of this Agreement and the Service Orders.
8
Calpine Power Services, mc,
Services Alrreement
August 22, 2003
SF#67 1 759 v2
,
21. LAWS. REGULATIONS AND COMPANY RULES
CONSULTANT agrees to obtain, make and/or file all permits, licenses and other governmental
approvals, mandatory reports, filings and .consents required under the terms of each Service
Order. CONSULTANT agrees to comply in all material respects with all applicable federal,
state and local laws, regulations, rules and ordinances, including but not limited to any and all of
the same relating to (i) labor and employment matters, (ii) environmental matters, (iii) health and
safety matters and (iv) security matters.
22. SURVIVAL
The rights and obligations of the parties which by their nature are normally intended to survive
the termination or completion of an agreement similar to this Agreement shall remain in full
force and effect following termination of this Agreement for any reason.
23. ENTIRE AGREEMENT
This Agreement, together with the Exhibits and Schedules, if any, attached hereto, all of which
are incorporated herein as part of this Agreement by this reference, and together with all Service
Orders, contains the entire agreement between the parties hereto with respect to the subject
matter hereof and supercedes all previous agreements, whether written or oral, including all prior
service agreements entered into between the parties.
24. AMENDMENTS
No amendment to this Agreement or to any Service Order shall be binding upon either party
hereto, unless it is in writing and executed on behalf of each party hereto .by a duly authorized
representative and expressly specified as such.
25. HEADINGS
Headings to Articles or Sections of this Agreement are to facilitate reference only and shall
neither form a part of this Agreement, nor in any way affect the interpretation thereof.
26. BINDING EFFECT
This Agreement shall be binding upon and inure to the benefit of the parties hereto, and their
successors and permitted assigns, but shall not inure to the benefit of any third party.
27. ATTORNEYS' FEES
In the event of litigation concerning the interpretation or enforcement of this Agreement or any
Service Order, the prevailing party in such litigation, as determined by the court, shall be entitled
to recover from the other party such prevailing party's reasonable attorneys' fees, as well as its
reasonable costs.
28. HEALTH AND SAFETY PROGRAMS
28.1. In connection with each Service Order, CONSULTANT shall comply with BUYER'S
accident/incident prevention program(s) to the extent CONSULTANT has been notified
in writing thereof prior to the execution of such Service Order, which program(s) shall
9
Ca1pine Power Services, Inc.
Services Al!reement
August 22, 2003
SF#671759 v2
,
include all requisite components required under Federal, State and local regulations.
CONSULTANT shall be responsible for acquiring job hazard assessments as necessary
to safely perform all duties at each Project and shall provide a copy to BUYER upon
request.
28.2. CONSULTANT shall be responsible for providing to its personnel employee health and
safety training and personal protective equipment in regard to potential hazards that may
be encountered in performance of any Services and shall provide copies of the certified
training records to BUYER upon request by BUYER.
28.3. CONSULTANT shall be responsible for ensuring that its employees are aware of and
comply with the requirements set forth herein.
28.4. BUYER or its representatives may periodically monitor the safety performance of
CONSULTANT at the Project site. Non-compliance with safety, health, or fire
requirements may result in BUYER directing the cessation of work activities, until items
in non-compliance are corrected.
28.5. CONSULTANT and BUYER each agree to promptly report any injuries connected with
the performance of any Services to the other party's site safety representative.
Additionally, CONSULTANT and BUYER each agree to investigate and submit to the
other party's site safety representative copies of all written accident reports, and to
coordinate their efforts if further investigation is requested.
28.6. CONSULTANT and BUYER each agree to take all reasonable steps and precautions to
protect the health and safety of their respective employees and other site personnel.
28.7. CONSULTANT shall advise its employees that any employee who jeopardizes his/her
safety and health, or the safety and health of others, may be subject to disciplinary
actions including removal from the Project.
29. LIENS
29.1. CONSULTANT agrees promptly upon written notice to discharge or cause to be
discharged, liens filed by others on account of claims for any labor performed or material
or equipment furnished under this Agreement by CONSULTANT, its agents or
representatives, except when such liens are the result of non-payment of amounts
properly due hereunder from BUYER to CONSULTANT.
29.2. With its final invoice for any particular Scope of Services, CONSULTANT shall deliver
to BUYER a fmal release of all liens arising out of such Scope of Services, which release
may be conditioned upon CONSULTANT's receipt of the amount so invoiced.
30. LIMITATION OF LIABILITY AND CONSEQUENTIAL DAMAGES
Notwithstanding anything herein to the contrary, it is specifically agreed that in no event shall
CONSULTANT or its vendors of any tier be liable in contract, tort, strict liability, warranty or
otherwise, for any special, indirect, incidental or consequential damages, such as, but not limited
to delay damages, disruption or loss of product, loss of revenue or anticipated profits, loss of use
of the equipment or system, non-operation or increased expense of operation of other equipment
10
Calpine Power Services, Inc.
Services AllTeement
August 22, 2003
SF#6717S9 v2
. " " or"
..' ,1
or systems, cost of capital, cost of purchased or replacement equipment, systems or power, and
claims of BUYER's customers. Notwithstanding anything herein to the contrary,
CONSULTANT's aggregate liability for direct damages and all other amounts hereunder shall in
no event exceed the value of the Services provided for the Project with respect to which the
liability was incurred, whether such liability arises in contract, tort (including negligence), strict
liability, or otherwise.
31. COUNTERPARTS
This Agreement and each Service Order may be signed in any number of counterparts, and each
counterpart shall represent a fully executed original as if signed by both parties.
IN WITNESS WHEREOF, the parties hereto have executed and entered into this Agreement as
of the date first set forth above.
BUYER:
CONSULTANT:
[BUYER]
By:
[CALPINE POWER SERVICES, INC.]
By:
Title: Sr. Vice President
Title:
Date:
Date:
11
Calpine Power Services, Inc.
Services Al!Teement
August 22, 2003
SF#671759v2
'.. .
-
... · CALPINE POWER SERVICES, INC
o
... .
Project Name:
Manager:
Phone:
Client Accounts Payable:
Calpine Contract Employee:
Start Date:
Expected Duration:
Equipment Rental:
Billing Rate (All Hours):
Expenses:
104 WOODMERE ROAD
FOLSOM, CALIFORNIA 95630
916-608-3800
916-294-0922 (FAX)
Calpine Power Services, Inc
Contract #
Service Order #1
Robert (Rod) Sheets
~ 4/25/05
~ 6 months
N/A
$80/hour, all hours worked
$5,000 per month, pro-rated daily
A standard service agreement will be used on this project.
Approval by:
Approval by:
Calpine Power Services, Inc
Client
SUPPORTING
DOCUMENTS
~
SERVICES AGREEMENT
BETWEEN
CITY OF VERNON
AND
CALPINE POWER SERVICES, INC
DATED AS OF
MAY 19,2005
SF #671759 v2
SERVICES AGREEMENT
THIS SERVICES AGREEMENT (this "Agreement") is made as of May 19,2005, between
CITY OF VERNON, a municipality, ("BUYER"), and CALPINE POWER SERVICES, Inc., a
Delaware corporation ("CONSULTANT").
WHEREAS, BUYER desires to enter into this Agreement with CONSULTANT to set forth the
general terms and conditions under which CONSULTANT shall perform such services ("Services") as
may from time to time be agreed upon in separate service orders ("Service Orders") related to the
services required by BUYER, and
WHEREAS, CONSULTANT desires to perfonn the Services as an independent CONSULTANT
to BUYER,
NOW THEREFORE, in consideration of the mutual covenants and agreements set forth herein,
the parties hereto agree as follows:
1. SERVICE ORDERS
CONSULTANT agrees to perform the Services described in each Service Order, with the
individual(s) ideptified in each Service Order (as to each Service Order, the "Scope of Services")
entered into and executed by the parties from time to time. Each Service Order shall be
separately numbered and each Service Order is hereby incorporated herein as if fully set forth
herein. Each Service Order shall be subject to all of the terms and provisions hereof, unless
expressly otherwise provided in any Service Order. Each project in connection with which the
parties enter into a Service Order is herein referred to as a "Project". Any services, work or
supplies which may be performed or provided by CONSULTANT with respect to a Project prior
to the actual date of execution by CONSULTANT and BUYER of an appropriate Service Order
shall nonetheless be deemed to be performed under this Agreement and all of the provisions
hereof shall apply to such services, work and supplies.
2. TERM
This Agreement shall be for a term lasting one (1) years from the date first specified above,
unless earlier terminated pursuant to this Agreement or extended by mutual agreement of the
parties.
3. COMPENSATION
CONSULTANT shall be compensated for the Services under each Service Order in the manner
described in the Service Order. In particular, compensation to CONSULTANT for the Scope of
Services under each Service Order shall be calculated as described in such Service Order, whether
on a time and materials basis, hourly rates subject to a fixed rate schedule with maximum limits,
"cost plus," or other basis as may be described in said Service Order.
4. PAYMENT
4.1. By the 15th day of each month applicable during the performance of each Service Order,
CONSULTANT shall prepare and submit to BUYER a separate reasonably itemized
invoice for each such Service Order covering the Services rendered by CONSULTANT
during the preceding month under such Service Order, prepared in accordance with the
1
Ca1pine Power Services, Inc.
Services Agreement
August 22, 2003
SF#671759 v2
compensation provisions of each applicable Service Order, along with a summary
statement of all amounts due and outstanding under this Agreement.
4.2. Itemized invoices shall include, in addition to any special information required by the
applicable Service Order, an itemization of the Services performed, the time expended by
each person on each element of the Services performed and an itemization of each
reimbursable expense authorized under the Service Order, together with copies of
relevant receipts or other reasonable substantiation.
4.3. All properly invoiced amounts shall be due and paid to CONSULTANT within thirty
(30) days after invoice receipt.
4.4. Amounts not paid when due shall bear interest, from the date payment was due to and
including the date of actual payment, at a ~ annum rate equal to the lesser of (i) the
prime lending rate quoted in the Wall Street Journal on the date such overdue amount
first became due, plus two percent (2%), or (ii) the maximum rate permitted under
applicable law.
5. WARRANTY
5.1. CONSULTANT shall perform all Services in accordance with Prudent Industry
Standards (as defined below) and in accordance with the terms of this Agreement and the
Service Order applicable to such Services. If CONSULTANT fails to perform the Scope
of Services in accordance with the requirements .of this Article 5, CONSULTANT shall,
upon written notice from Buyer, promptly re-perform the Scope of Services to the extent
necessary and correct any deficiencies in the Scope of Services at CONSULTANT's cost
so as to cause the Scope of Services to be performed as required by this Article 5. With
respect to any particular work item in the relevant Scope of Services, CONSULTANT's
duty to re-perform and/or correct the Scope of Services shall apply only for a period of
twelve (12) months following completion of such item. At no time will
CONSULTANAT have a duty to re-perform or correct any aspect of any Scope of
Services unless it is first notified in writing by Buyer concerning the need to undertake
such re-performance or correction.
5.2. THE WARRANTIES CONTAINED IN THIS ARTICLE 5 AND THE REMEDIES
PROVIDED HEREIN FOR ANY BREACH THEREOF ARE EXCLUSIVE AND THEY
ARE GIVEN AND ACCEPTED IN LIEU OF ANY IMPLIED WARRANTIES,
INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, AND IN LIEU OF ANY OBLIGATION, LIABILITY,
RIGHT, CLAIM OR REMEDY AT LAW OR IN EQUITY ARISING OUT OF ANY
BREACH OF SUCH WARRANTIES, WHETHER SUCH WARRANTIES OR
REMEDIES ARISE UNDER CONTRACT OR ANY OTHER LEGAL OR
EQUITABLE THEORY OR PRINCIPLE INCLUDING NEGLIGENCE.
5.3. As used herein the term "Prudent Industry Standards" means those practices, methods
and safety standards engaged in or approved by a significant portion of the relevant
industry with respect to services comparable to the relevant Services being provided by
CONSULTANT hereunder in connection with projects comparable in size, location and
other particulars to the Project which, in the exercise of reasonable judgment at the time
the decision was made, based on information then known to CONSULTANT, would
reasonably have been expected to achieve the desired results consistent with good
2
Calpine Power Services, Inc.
Services Agreement
August 22, 2003
SF#671759 v2
business practices, safety considerations and expediency, it being understood that Prudent
Industry Standards are not limited to any particular or optimal practice or practices, but
instead include a range of acceptable practices, methods and acts.
6. CHANGES AND EXTRA SERVICES
6.1. Provided that BUYER gives reasonable advance notice to CONSULTANT, BUYER may
propose in writing changes to CONSULTANT's work within the Scope of Services
described in any particular Service Order. CONSULTANT may also initiate such
notification, upon identifying a condition that may change the Scope of Services as
agreed at the time of execution of the Service Order covering such Scope of Services.
BUYER and CONSULTANT shall reach agreement on any such proposed change and its
effect on the cost and time for performance under any Service Order, and they shall
confirm such agreement in writing as an amendment or supplement to such Service
Order. In the event that the parties cannot reach agreement as to the proposed change,
CONSULTANT shall not be obligated to perform such change.
6.2. CONSULTANT is not obligated to perform any such changes, except upon such written
amendment or supplement; provided that if, upon BUYER's written request,
CONSULTANT begins work in accordance with a proposed change, BUYER shall be
liable to CONSULTANT for payment with respect to CONSULTANT's work pursuant
to such change, unless and until BUYER notifies CONSULTANT to stop work on such
change.
7. TIME OF PERFORMANCE
CONSULTANT shall keep BUYER reasonably advised of the progress of CONSULTANT's
performance of the Services. In the event that performance of the Services is delayed for any
reason the time and compensation for the performance of the Services may be equitably adjusted
pursuant to Section 6.1 above.
8. PROJECT SITE
Subject to the more particular provisions of any Service Order, CONSULTANT and BUYER
shall cooperate with each other with a view towards ensuring that the Services are performed in
such manner as to cause a minimum of interference with BUYER's operations and the operations
of other CONSULTANTs at each Project site. Each Project site includes the power plant areas,
all buildings, offices and other locations where Services are to be performed, including any access
roads. CONSULTANT shall be responsible for the safe transportation to the Project site and
packing in proper containers and storage of any equipment required for performing the Services.
9. TERMINATION
9.1. Either party may terminate this Agreement (or any individual Service Order) upon seven
(7) days' prior written notice, in the event of substantial failure by the other party to
perform in accordance with the terms of this Agreement (or such Service Order) through
no fault of the terminating party; provided that such notice shall specify in reasonable
detail the nature of such substantial failure of performance; and further provided that if
during such seven (7) day period the defaulting party cures the default, this Agreement
(or such Service Order) shall not be terminated. Upon termination of this Agreement (or
any individual Service Order), unless otherwise instructed within the notice of
3
Calpine Power Services, Inc,
Services Agreement
August 22, 2003
SF#671759v2
termination, CONSULTANT shall discontinue its Services as soon as reasonably
possible thereafter.
9.2. In addition to the foregoing, either party may in its sole discretion, with or without cause,
terminate this Agreement on a going forward basis upon fifteen (15) days' written notice
to the other party.
9.3. Any termination of this Agreement (or any individual Service Order) pursuant to this
Article 9 shall be without prejudice to the rights and obligations of the parties under this
Agreement (and any applicable Service Orders) with respect to any Services previously
provided by CONSULTANT, which rights and obligations shall survive such
termination. Without limiting the generality of the foregoing, it is agreed that, upon any
early termination of Services, in part or in total, BUYER shall make payment to
CONSULTANT for the Services rendered and fees earned through the date of
termination within thirty (30) days of the date CONSULTANT submits its invoice.
10. INSURANCE
1 0.1. CONSULTANT shall maintain in full force and effect during the term of this Agreement,
at its sole cost and expense, the insurance described below. A certificate of insurance
evidencing such coverages shall be provided to BUYER upon written request of BUYER.
10.1.1 Commercial general liability insurance, including bodily injury, property
damage, independent CONSULTANTs, products/completed operations,
contractual, and personal injury liability, with a combined single limit of
$1,000,000 each occurrence.
10.1.2 Excess liability coverage witha combined single limit of $1,000,000.
10.1.3 State Workers Compensation insurance with statutory limits, and Employers
Liability insurance with limits of not less than $1,000,000.
10.1.4 Business automobile liability insurance covering owned, non-owned and hired
automobiles for a combined single limit of $1 ,000,000.
10.2. All insurance policies shall be endorsed to provide that all insureds and additional
insureds thereunder are given thirty (30) days' advance notice of cancellation, non-
renewal or material change.
10.3. BUYER and its affiliates shall be named as an additional insured, to the extent of the
indemnity obligations of CONSULTANT in this Agreement, under each policy listed
above (except for the workers compensation policy). In addition to BUYER and its
affiliates, any of the companies listed on Service Order(s) hereunder as an additional
insured shall be designated as additional insureds on CONSULTANT's insurance
policies in accordance with this Article 10.
10.4. BUYER shall obtain and maintain in full force and effect during the term of this
Agreement, at its sole cost and expense, all-risk property insurance, including coverage
for testing and commissioning, in an amount equal to the full replacement cost value with
respect to' any equipment, parts, materials or other property of BUYER or property, plant
and equipment constituting part of the Project where CONSULTANT is performing its
4
Calpine Power Services, Inc.
Services Agreement
August 22, 2003
SF#671759 v2
Services ("BUYER/Owner Property"). BUYER shall be liable for all deductible
amounts under any such all-risk property coverage, and BUYER shall have full care and
custody, and shall bear all risk of physical loss or damage with respect to, such
BUYER/Owner Property during any period that CONSULTANT is performing the
Services.
11. ASSIGNMENT AND DELEGATION
Neither BUYER nor CONSULTANT may assign, sell, transfer or otherwise dispose of their
rights under this Agreement, nor (subject to CONSULTANT's subcontracting rights under
Article 11 above) may BUYER or CONSULTANT delegate its duties under this Agreement, in
each case without the prior written approval of the other party, not to be unreasonably withheld.
Any such unauthorized attempted assignment or delegation shall be void and unenforceable.
12. INDEMNITY
12.1. Subject to Section 13.3 below, CONSULTANT agrees to protect, defend, indemnify and
hold harmless BUYER, each Project owner, each Project lessee (if any), all Project
related lenders, each of the foregoing parties' shareholders, partners and other equity
holders, and all of the foregoing parties' affiliates, employees, directors, agents and
representatives (collectively, "Buyer Indemnitees"), from and against any and all third
party liabilities, losses, damages, claims, penalties, fines, liens and demands (collectively,
"Liabilities"), and all reasonable costs and expenses associated therewith incurred by the
Buyer Indemnitees, including without limitation Liabilities associated with personal
injury or death (including without limitation injury to or death of a Buyer Indemnitee or
its employees) or damage to property (excluding property of Buyer Indemnitees),
determined pursuant to a final judgment by a court of competent jurisdiction to have been
caused by the negligence of any of the CONSULTANT Indemnitees (as defined below).
12.2. Subject to Section 13.3 below, BUYER agrees to protect, defend, indemnify and hold
harmless CONSULTANT, its SUB CONSULTANTs, and each of the foregoing parties'
shareholders, partners and other equity holders, and all of the foregoing parties' affiliates,
employees, directors, agents and representatives (collectively, "CONSULTANT
Indemnitees"), from and against any and all Liabilities, and all reasonable costs and
expenses associated therewith incurred by the CONSULTANT Indemnitees, including
without limitation Liabilities associated with personal injury or death (including without
limitation injury to or death of a CONSULTANT Indemnitee or its employees) or
damage to property (excluding property of CONSULTANT Indemnitees), determined
pursuant to a final judgment by a court of competent jurisdiction to have been caused by
the negligence of any of the Buyer Indemnitees.
12.3. The indemnification and other protections provided to a Buyer Indemnitee or a
CONSULTANT Indemnitee, as the case may be, under Section 12.1 or Section 12.2 shall
not extend to Liabilities insofar as the same are caused by the negligence of the particular
Indemnitee claiming indemnification, it being understood that the concept of comparative
negligence shall be applied to apportion Liabilities to the extent jointly caused by the
negligence of a Buyer Indemnitee and a CONSULTANT Indemnitee.
12.4. An indemnifying party (an "Indemnitor") shall defend the Indemnitee(s) by counsel of
the Indemnitor's selection reasonably satisfactory to the Indemnitee(s), with respect to
any Liabilities within the indemnification obligations of this Article 13. Upon selection
5
Calpine Power Services, Inc.
Services Agreement
August 22, 2003
SF#671759 v2
>
and approval of such counsel, the Indemnitor shall control the defense. If the Indemnitor
fails to provide such a defense, the Indmenitee(s) may undertake their own defense at the
expense of the Indemnitor. The Indemnitee(s) shall provide the Indemnitor prompt
written notice of any asserted Liabilities and actions indemnified against hereunder and
shall cooperate with the Indemnitor in the defense thereof. The Indemnitee(s) shall have
the right, at their own expense, to retain co-counsel of the Indemnitee(s)' choice. The
Indemnitee(s) shall not settle or compromise any Liabilities or other actions indemnified
against hereunder without the prior written consent of the Indemnitor.
13. DOCUMENTS
The parties hereto agree that CONSULTANT shall turn over to BUYER all written Project
information that is confidential or proprietary ("Project Information") previously provided by
BUYER to CONSULTANT, including all copies thereof, when and as requested during the term
of this Agreement (except to the extent such Project Information is needed by CONSULTANT to
complete the related Services) and, in any event, when the Services under all Service Orders have
been completed. All such Project Information, including all copies thereof, shall be the property
of BUYER.
14. NON-DISCLOSURE OF INFORMATION
14.1. CONSULTANT agrees not to use the Project Information for any purpose whatsoever
except to perform the Services as provided in this Agreement.
14.2. The obligations undertaken pursuant to this Article shall not apply to such part of the
Project Information which BUYER has not or does not continue to treat as secret and
confidential or which is or has become published or otherwise generally available to the
public, other than as a consequence of the willful or negligent act or omission of
CONSULTANT or any of its employees, or which, at the time of disclosure to
CONSULTANT, was already known to or in the lawful possession of CONSULTANT
and not known by CONSULTANT to be subject to any other confidentiality agreement
with BUYER.
14.3. CONSULTANT shall impose corresponding obligations of confidentiality on its
employees and SUB CONSUL T ANTs involved in the performance of the Services prior
to making the Project Information available to them.
14.4. It shall not be a breach of the confidentiality obligations hereof for CONSULTANT to
disclose Project Information where, but only to the extent that, such disclosure is required
by law or applicable legal process.
14.5. The obligations under this Article 15 shall survive for a period of one (1) year following
termination of this Agreement (or such other period to which the parties shall agree in
connection with any termination).
15. AUDITS AND DISPUTES
15.1. BUYER reserves the right to audit, at any and all reasonable times, all records of
CONSULTANT pertaining to the Services, including, without limitation, labor hours,
computer usage, cost of materials, reimbursable expenses (if allowed) and any and all
costs charged to BUYER, during, and for a period of six months following, the term of
6
Calpine Power Services, Inc.
Services Agreement
August 22, 2003
SF#671759 v2
this Agreement. Such audit right shall not extend, however, to any fixed amounts
provided in a Service Order, including, without limitation, any fixed fee, lump-sum
amount, fixed rate or agreed upon multiplier.
15.2. CONSULTANT and BUYER shall make every reasonable attempt to resolve in an
amicable way any dispute concerning the interpretation or the performance of this
Agreement, including by way of making senior management available to discuss the
dispute and scheduling one or more face-to-face meetings in connection therewith. Any
dispute which cannot be resolved by the parties hereto within thirty (30) days (as such
period may be extended from time to time by written agreement of CONSULTANT and
BUYER) from the date of written notice by either party, shall be resolved by a court of
competent jurisdiction unless the parties agree to arbitration or other alternative dispute
resolution.
16. GOVERNING LAW
This Agreement shall be governed by and be construed in accordance with the laws of the State
of California, excluding choice of law principles thereof that would require application of the
laws of another jurisdiction.
,17. NOTICES
17.1. Any and all notices, invoices and other communications under this Agreement shall be in
writing and shall be deemed to have been delivered upon actual receipt thereof, and shall
be addressed as follows:
If to BUYER:
BUYER - Project Site
City of Vernon
Attn: City Attorney
4305 Santa Fe Ave
Vernon, CA 90058
With copy to:
[TBD]
If to CONSULTANT:
Calpine Power Services, Inc
104 W oodmere Rd
Folsom, CA 95682
Attn: Ralph Wagner
Phone: (916-294-6109)
Fax: (916-294-0922)
With copy to:
General Counsel, Calpine Corp
104 W oodmere Rd
Folsom, CA 95682
17.2. Notices and other communications may be sent by telefax; provided however, that any
notices or other communications sent by telefax shall within two (2) days after dispatch
of such telefax be delivered in writing by courier or U.S. Mail to the address set forth
above. In any case, notices shall only be deemed delivered if actually received in
accordance with Section 18.1 above.
7
Calpine Power Services, Inc.
Services Agreement
August 22, 2003
SF#671759 v2
18. WAIVER
Except as expressly provided by this Agreement or by any Service Order, no waiver of any term
or condition of this Agreement shall be valid unless made in writing and executed on behalf of
the waiving party hereto by a duly authorized representative of that party and specifying the
nature and extent of such waiver. Such waiver shall in no event be construed to be a general
waiver of any of the terms and conditions contained in this Agreement, but the same shall be
strictly limited to the extent and occasion specified in such signed writing. Failure on the part of
the party to complain of any act or failure to act on any complaint of the other party, irrespective
of how long such failure continues, shall not constitute a waiver by such party of its rights
hereunder, except to the extent such result is expressly provided for under this Agreement or
under any . Service Order.
19. INVALIDITY OF PROVISIONS
If any provisions of this Agreement are or become invalid, the validity of the remammg
provisions shall not be affected thereby. The parties hereto shall jointly seek an arrangement
having a legal and economic effect, which will be as similar as possible to the invalid provisions.
If an agreement on the substitution cannot be reached within six (6) months from the date both
parties first become aware, or should have become aware, of the likely invalidity of. such
provision, the question of which substitution is reasonably required shall be decided as provided
in Article 16.
20. INDEPENDENT CONSULTANT
CONSULTANT acknowledges and agrees that it is an independent CONSULTANT and that the
performance of the Services shall be entirely under CONSULTANT's supervision, direction and
control, subject to advisory contacts with, periodic reporting to, and compliance with constraints
imposed by BUYER consistent with the terms of this Agreement and the Service Orders.
8
Calpine Power Services, Inc.
Services Agreement
August 22, 2003
SF#671759 v2
21. LAWS. REGULATIONS AND COMPANY RULES
CONSULTANT agrees to obtain, make and/or file all permits, licenses and other governmental
approvals, mandatory reports, filings and consents required under the terms of each Service
Order. CONSULTANT agrees to comply in all material respects with all applicable federal, state
and local laws, regulations, rules and ordinances, including but not limited to any and all of the
same relating to (i) labor and employment matters, (ii) environmental matters, (iii) health and
safety matters and (iv) security matters.
22. SURVIVAL
The rights and o1;>ljgations of the parties . which by their nature are normally intended to survive
the termination or completion of an agreement similar to this Agreement shall remain in full force
and effect following termination of this Agreement for any reason.
23. ENTIRE AGREEMENT
This Agreement, together with the Exhibits and Schedules, if any, attached hereto, all of which
are incorporated herein as part of this Agreement by this reference, and together with all Service
Orders, contains the entire agreement between the parties hereto with respect to the subject matter
hereof and supercedes all previous agreements, whether written or oral, including all prior service
agreements entered into between the parties.
24. AMENDMENTS
No amendment to this Agreement or to any Service Order shall be binding upon either party
hereto, unless it is in writing and executed on behalf of each party hereto by a duly authorized
representative and expressly specified as such.
25. HEADINGS
Headings to Articles or Sections of this Agreement are to facilitate reference only and shall
neither form a part of this Agreement, nor in any way affect the interpretation thereof.
.
26. BINDING EFFECT
This Agreement shall be binding upon and inure to the benefit of the parties hereto, and their
successors and permitted assigns, but shall not inure to the benefit of any third party.
27. ATTORNEYS' FEES
In the event of litigation concerning the interpretation or enforcement of this Agreement or any
Service Order, the prevailing party in such litigation, as determined by the court, shall be entitled
to recover from the other party such prevailing party's reasonable attorneys' fees, as well as its
reasonable costs.
28. HEALTH AND SAFETY PROGRAMS
28.1. In connection with each Service Order, CONSULTANT shall comply with BUYER'S
accident/incident prevention program(s) to the extent CONSULTANT has been notified
in writing thereof prior to the execution of such Service Order, which program(s) shall
9
Calpine Power Services, Inc.
Services Agreement
August 22, 2003
SF#671759 v2
include all requisite components required under Federal, State and local regulations.
CONSULTANT shall be responsible for acquiring job hazard assessments as necessary to
safely perform all duties at each Project and shall provide a copy to BUYER upon
request.
28.2. CONSULTANT shall be responsible for providing to its personnel employee health and
safety training and personal protective equipment in regard to potential hazards that may
be encountered in performance of any Services and shall provide copies of the certified
training records to BUYER upon request by BUYER.
28.3. CONSULTANT shall be responsible for ensuring that its employees are aware of and
comply with the requirements set forth herein.
28.4. BUYER or its representatives may periodically monitor the safety performance of
CONSULTANT at the Project site. Non-compliance with safety, health, or fire
requirements may result in BUYER directing the cessation of work activities, until items
in non-compliance are corrected.
28.5. CONSULTANT and BUYER each agree to promptly report any injuries connected with
the performance of any Services to the other party's site safety representative.
Additionally, CONSULTANT and BUYER each agree to investigate and submit to the
other party's site safety representative copies of all written accident reports, and to
coordinate their efforts if further investigation is requested.
28.6. CONSULTANT and BUYER each agree to take all reasonable steps and precautions to
protect the health and safety of their respective employees and other site personnel.
28.7. CONSULTANT shall advise its employees that any employee who jeopardizes hislher
safety and health, or the safety and health of others, may be subject to disciplinary actions
including removal from the Project.
29. LIENS
29.1. CONSULTANT agrees promptly upon written notice to discharge or cause to be
discharged, liens filed by others on account of claims for any labor performed or material
or equipment furnished under this Agreement by CONSULTANT, its agents or
representatives, except when such liens are the result of non-payment of amounts
properly due hereunder from BUYER to CONSULTANT.
29.2. With its final invoice for any particular Scope of Services, CONSULTANT shall deliver
to BUYER a final release of all liens arising out of such Scope of Services, which release
may be conditioned upon CONSULTANT's receipt of the amount so invoiced.
30. LIMITATION OF LIABILITY AND CONSEQUENTIAL DAMAGES
Notwithstanding anything herein to the contrary, it is specifically agreed that in no event shall
CONSULTANT or its vendors of any tier be liable in contract, tort, strict liability, warranty or
otherwise, for any special, indirect, incidental or consequential damages, such as, but not limited
to delay damages, disruption or loss of product, loss of revenue or anticipated profits, loss of use
of the equipment or system, non-operation or increased expense of operation of other equipment
or systems, cost of capital, cost of purchased or replacement equipment, systems or power, and
10
Calpine Power Services, Inc.
Services Agreement
August 22, 2003
SF#671759 v2
claims of BUYER's customers. Notwithstanding anything herein to the contrary,
CONSULTANT's aggregate liability for direct damages and all other amounts hereunder shall in
no event exceed the value of the Services provided for the Project with respect to which the
liability was incurred, whether such liability arises in contract, tort (including negligence), strict
liability, or otherwise.
31. COUNTERPARTS
This Agreement and each Service Order may be signed in any number of counterparts, and each
counterpart shall represent a fully executed original as if signed by both parties.
IN WITNESS .WHEREOF, the parties hereto have. executed and entered into this Agreement as
of the date first set forth above.
BUYER:
CONSULTANT:
CITY OF VERNON
BY:~~...J ·
/' eonis c. Ma burg .
Title: Mayor
By:
Date:
6'-$/-OS-
Title:
Date: May 20, 2005
ATTESY
/~
Bruce V. Malkenhorst, City Clerk
APPROVED AS TO FORM:
11
Calpine Power Services, Inc.
Services Agreement
August 22, 2003
SF#67 1 759 v2
"
TABLE OF CONTENTS
l.
2.
3.
4.
5.
o 6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
Page
SERVICE ORDERS.................... ...:....... ..................... .... ......... ............ ........ ................. .....1
TERM .........................................................................................................,........................1
COMPENSATION ..... ........... ...... ........ .............. ........ ..... ......... ................ .............. ........ ......1
PAYMENT ...... ................................. ........... ............................... ..................................... ....1
WARRANTY .... ....................................... .......... ....... ....... .............. .................. ............... ....2
CHANGES AND EXTRA SERVICES..... ................................. ........... ........ ............ ..........3
TIME OF PERFORMANCE ................. ............................ ..................... ...... ........... ..... .......3
PROJECT SITE....................... ............ ...... ........ ........ ...................... ........ .............. ..... ..... ....3
TERMINATION ..............................................,....................................,..............................3
INSURANCE.......................................................................................................................4
SUBCONTRACTING ................................... ERROR! BOOKMARK NOT DEFINED.
ASSIGNMENT AND DELEGATION........................... ............................ ................ .........5
INDEMNITY .......................................................................................................................5
DOCUMENTS.....................................................................................................................6
NON-DISCLOSURE OF INFORMATION......... .......................... ............ ..... ....................6
AUDITS AND DISPUTES.................. ......... ........... ........................................ ............ ..... ...6
GOVERNING LAW................................ ............ .......... ......... ........... .............. ....... ........ .....7
NOTICES.....................................,................................................................................,......7
W AIVER..........................................,...................................................................................8
INVALIDITY OF PROVISIONS........................................................................................8
INDEPENDENT CONSULTANT..... ........... ............. .........;......................... ........ ..............8
LAWS, REGULATIONS AND COMPANY RULES ........................................................9
SURVIVAL .........................................................................................................................9
ENTIRE AGREEMENT.................. ...... ................. .................................................... ..... ....9
AMENDMENTS .................................................................................................................9
HEADINGS ....................,....................................................................................................9
BINDING EFFECT .......... ..........,......... ...... .................. ................................ ...... .................9
ATTORNEYS' FEES.................... ....................................... ............... .................................9
HEALTH AND SAFETY PROGRAMS ... .................................. ....... ....... ........... ...............9
LIENS....,.. ............................................ ..... ............................ ;................................ ..... ......1 0
Calpine Power Services, Inc.
Services Agreement
August 22, 2003
SF#671759v2
.
31. LIMITATION OF LIABILITY AND CONSEQUENTIAL DAMAGES ........................10
30. COUNTERPARTS ............................................................,...............................................11
ii
Calpine Power Services, Inc.
Services Agreement
August 22, 2003
SF#671759 v2