Resolution No. 8809
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RESOLUTION NO. 8809
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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 ANTHONY J. BALDERE
FOR PLANNING, DEVELOPMENT, LICENSING AND
CONSTRUCTION OF LIGHT & POWER CAPITAL PROJECTS
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8 WHEREAS, the City of Vernon is building the Malburg
9 Generating Station and is in the process of obtaining a permit for the
10 Vernon Power Plant Project; and
11 WHEREAS, the City has determined that it needs the services
12 of a contract administrator and project controls manager to assist the
13 City with the Vernon Power Plant and the Malburg Generating Station
14 projects and other miscellaneous planning, coordination and contract
15 administrative services for these and other capital projects of the
16 City of Vernon (collectively, the "Services"); and
17 WHEREAS, the City has determined that Anthony J. Baldere
18 ("Baldere") possesses the technical knowledge and expertise to furnish
19 the Services required by the City; and
20 WHEREAS, by letter dated July 14, 2005, Donal O'Callaghan,
21 Acting Director of Light & Power, recommended that an agreement with
22 Baldere, be approved and executed; and
23 WHEREAS, the City Council of the City of Vernon has
24 determined that, pursuant to the provisions of subsection (a) of
25 Section 2.27 of the Vernon City Code, it is in the public interest and
26 necessity to enter into an agreement with Baldere.
27 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
28 CITY OF VERNON AS FOLLOWS:
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SECTION 1:
The City Council of the City of Vernon hereby
2 finds and determines that the recitals contained hereinabove are true
3 and correct.
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SECTION 2:
The City Council of the City of Vernon hereby
5 approves the Agreement for Professional Services with Baldere, in
6 substantially the same form as the copy which is attached hereto as
7 Exhibit A and incorporated by reference.
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SECTION 3:
The City Council of the City of Vernon hereby
9 authorizes the Mayor to execute said Agreement for, and on behalf of,
10 the City of Vernon and the Acting City Clerk is hereby authorized to
11 attest thereto.
SECTION 4:
The City Council of the City of Vernon hereby
directs the Acting City Clerk, or his designee, to send one fully
executed Agreement to:
Anthony J. Baldere
53 LaCrosse Drive
Morgan Hill, CA 95037
SECTION 5:
The Acting City Clerk of the City of Vernon
shall certify to the passage of this resolution, and thereupon and
thereafter the same shall be in full force and effect.
APPROVED AND ADOPTED this 20TH day of July, 2005.
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ATTEST:
BRUCE V. MALKENHORST JR.
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STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
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I, BRUCE V. MALKENHORST, Acting City Clerk of the City of Vernon,
do hereby certify that the foregoing Resolution, being Resolution No.
8809, was duly adopted by the City Council of the City of Vernon at a
regular meeting of the City Council duly held on Wednesday, July 20;
2005, and thereafter was duly signed by the Mayor of the City of
Vernon.
(SEAL)
EXHIBIT
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AGREEMENT FOR PROFESSIONAL SERVICES
BY AND BETWEEN
CITY OF VERNON, CALIFORNIA
AND
ANTHONYJ.BALDERE
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AGREEMENT FOR PROFESSIONAL SERVICES
BY AND BETWEEN
CITY OF VERNON, CALIFORNIA
AND
ANTHONYJ.BALDERE
This agreement for the performance of professional project general management services
("Agreement") is made and entered into on this 20th day of July, 2005 ("Effective Date"), by
and between Anthony J. Baldere, an individual sole proprietor ("Contractor"), and the City of
Vernon, California, a chartered California Municipal Corporation, ("City"). City and
Contractor may be referred to herein individually as a "Party" or collectively as the "Parties"
or the "Parties to 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, development, licensing and construction of a
gas turbine electric generation facility, to be located in the City of Vernon;
B. Contractor has represented to the City that he has considerable knowledge and
experience in the power plant construction industry and that he possesses the
professional 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 terms and conditions under which
such professional project management services will be provided and the terms 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, expertise, 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 Vemon, City hereby enters into this Agreement 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. Such Services shall include, but not be limited to, the necessary technical and
professional services, including any required labor, materials, equipment, transportation,
supervision and expertise necessary to satisfactorily complete the Project at his own risk and
expense.
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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 term of this Agreement shall begin on August
1, 2005 and terminate at the end of day on July 31, 2006 (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.
5. 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 or right of action under this
Agreement.
6. INDEPENDENT CONTRACTOR
Contractor is an independent contractor and at no time during the Term 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 performance 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 the 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 journal, 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 industry.
11. MONITORING OF SERVICES
City may monitor the Services performed under this Agreement to determine whether
Contractor's actions conform to City policy and to the terms 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 terminate 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, ethnic
background, or marital status, in violation of state or federal law.
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14. HOLD CITY HARMLESSIINDEMNIFICATION
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 damage, 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 Contractor, 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 insurance, and coverage verifications as defined in
Exhibit C, attached and incorporated by this reference. City shall reimburse Contractor for
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
This 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, it 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 of California.
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20. DISPUTE RESOLUTION
A. Any controversies or claims between Contractor 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 resolve 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 Orange County
appoint a mediator. The mediation meeting shall not exceed one work day [eight (8)
hours]. The Parties may agree to extend 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 rules 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 Party 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 Orange
County, or if appropriate, in the United States District Court, Los Angeles, 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 or indirect, which could conflict with the faithful performance of this Agreement.
Contractor is familiar with the provisions of California Government Code Section 87100 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 terminate 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 Termination, 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 termination. 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 purposes 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 turpitude, 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 Termination 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 perform 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 Termination 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 performing 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 occurrence 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 terminated by
City. In that event, City shall have no further liability or obligation to
Contractor except for (i) unpaid compensation accrued 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 Term 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 which 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-Upon Payments
Should City fail to pay Contractor all or 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, documents, 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 performance 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 loss, 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, shall clearly label that information "Confidential" before disclosing it to
the other Party. Confidential Information means information which is of a non-public,
proprietary or confidential nature belonging to the Disclosing Party, including
without limitation, all reports and analyses, technical and economic data, studies,
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, performance, cost,
business and process information or data, know-how, and computer programming or
other written or oral information. Confidential Information may be in any form
whatsoever, including without limitation writings, recordings, electronic or oral data,
computer programs, logic diagrams, component 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
disclosure pursuant to an exemptions to "the California Public Records Act
(Government Code sections 6254 and 6255). Contractor acknowledges that City may
submit to Contractor information that City considers confidential or proprietary or
protected from disclosure pursuant to an exemptions to the California 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 practical 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 information 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:
City of Vernon
Attn. Acting City Clerk
4305 Santa Fe Ave.
Vernon, CA 90058
And to Contractor address as follows:
Anthony J. Baldere
53 LaCrosse Drive
Morgan Hill, CA 95037
27. COMPLIANCE WITH ETHICAL STANDARDS
Contractor shall:
a. read Exhibit D, entitled "ETHICAL STANDARDS FOR CONTRACTORS
SEEKING TO ENTER INTO AN AGREEMENT WITH THE CITY OF VERNON,
CALIFORNIA," attached and incorporated by this reference; and,
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b. execute Exhibit E, entitled "AFFIDAVIT 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.
CITY OF VERNON, CALIFORNIA
a chartered California municipal corporation
CITY OF VERNON
By:
LEONIS C. MALBURG, Mayor
ATTEST:
BRUCE V. MALKENHORST, Acting City Clerk
APPROVED AS TO FORM:
ERIC T. FRESCH, City Attorney
Address: 4305 Santa Fe Ave.
Vernon, CA 90058
"City"
ANTHONY J. BALDERE,
an individual sole proprietor
By:
Anthony J. Baldere
Address:
53 LaCrosse Drive
Morgan Hill, CA 95037
Telephone:
Facsimile:
E-mail:
(408) 776-9196
N/A
tony. tracey@verizon.net
"Contractor"
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AGREEMENT FOR PROFESSIONAL SERVICES
BY AND BETWEEN
CITY OF VERNON, CALIFORNIA
AND
ANTHONYJ.BALDERE
EXHIBIT A
SCOPE OF SERVICES
Section 1.
Scope of Services to be performed by the Contractor
For the Term of this Agreement, Contractor shall supply the required Project
Management Services to the City, 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 Vernon (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:
Reportinl! to:
Project Controls / Contracts Manager
Director of Light & Power
As an independent contractor, Contractor will determine the method, detail~, 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 all applicable City policies and procedures, Contractor will provide the
Services, of Project Controls Manager.
As directed by the Director of the Utility, Contractor shall be responsible for performing
all required services, including but not limited to, the following:
· Manage the bidding, award, and the closeout of all equipment procurement and
public works contracts.
· Support the effort of obtaining the permits necessary to construct and operate an
electric generating facility.
· Assist in the development and maintenance of the overall Project schedule
identifying all major Project milestones, critical path construction activities, major
equipment deliveries, utility interconnection deliverables, and key permit
requirements.
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Scope of Services Exhibit A
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. Maintain an accurate account of the overall Project costs.
. Develop and submit periodic financial reports as required by the local
municipality and/or regulatory agencies.
. Manage the development of regular Project status reports.
. Manage the internal and external contract administration functions.
. Implement the Project administration requirements including document control,
invoices, and City Council approvals.
. Other activities as required by the Director ofthe Utility.
Section 3.
Time Devoted to Work
In the performance 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.
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Agreement for Professional Services / Anthony 1. Baldere
Scope of Services Exhibit A
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AGREEMENT FOR PROFESSIONAL SERVICES
BY AND BETWEEN
CITY OF VERNON, CALIFORNIA
AND
ANTHONYJ.BALDERE
EXHIBIT B
SCHEDULE OF FEES
In no event shall the amount billed to City by Contractor for services under this
Agreement exceed three hundred dollars ($300,000.00) dollars, subject to budget
appropriations.
1. Base Compensation
In consideration for Services rendered, the City shall pay the Contractor a fee of sixteen
($16,000) for each month worked by Contractor from August 1, 2005 through July 31,
2006 based upon a standard forty-hour (40-hr) workweek, Monday thru Friday. Hours
worked in excess of the standard forty-hour (40-hr) workweek shall be compensated on
an equivalent hourly basis. Such amount shall fully compensate Contractor and no other
incidental 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 five thousand ($5,000.00) 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 ten thousand ($10,000.00) 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
Agreement for Professional Services / Anthony J. Baldere
Schedule of Fees Exhibit B
Page lof2
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class, unless economy class seating is unavailable through no fault
of the Contractor. Reasonable attempts shall be made to make air
travel reservations in advance in order to take advantage of lower
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 for each 4
months on assignment.
Agreement for Professional Services / Anthony J. Baldere
Schedule of Fees ExhibitB
Page 2 of2
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AGREEMENT FOR PROFESSIONAL SERVICES
BY AND BETWEEN
CITY OF VERNON, CALIFORNIA
AND
ANTHONYJ.BALDERE
EXHIBIT C
STANDARD INSURANCE REQillREMENTS
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 for the full term 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 Vernon,
California, individually or collectively.
1. MINIMUM SCOPE AND LIMITS OF REQillRED 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:
a. 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 Form 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 shall 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 (WCIEL).
Agreement for Professional Services / Anthony J. Baldere
Standard Insurance Requirements Exhibit C
Page 1 of3
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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 InsuraJ1ce 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. DEDUCTIBLES 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 following 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 Vernon, its City Council, commissions,
officers and employees are hereby added as additional insureds in respect
to all liability arising out of the Contractor's work for the City, providing
coverage at least as broad as Insurance Services Office (ISO) Endorsement
CG 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
such cancellation to City at the address set forth below, except the insurer
Agreement for Professional Services I Anthony J. Baldere
Standard Insurance Requirements Exhibit C
Page 2 of3
may give ten (10) days notice for nonpayment of premium (CGL, BAL,
WC/EL &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
VERIFICATION
COVERAGE
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 termination 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 Insurance and coverage verification and all other notices related
to cancellation shall be mailed to:
Office of the City Clerk
Attn. Risk Management
4305 Santa Fe Avenue
Vernon, CA 90058
Agreement for Professional Services I Anthony J. Baldere
Standard Insurance Requirements Exhibit C
Page 3 of3
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AGREEMENT FOR PROFESSIONAL SERVICES
BY AND BETWEEN
CITY OF VERNON, CALIFORNIA
AND
ANTHONYJ.BALDERE
EXHIBIT D
ETHICAL STANDARDS FOR CONTRACTORS
SEEKING TO ENTER INTO AN AGREEMENT WITH
THE CITY OF VERNON, CALIFORNIA
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 Contractorl 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 of a crime punishable as a felony involving
dishonesty.3;
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 contract or
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 or 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 corporate stockholder [i.e., a person who owns more than ten percent (10%) 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 words "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, bribery,
falsification or destruction of records, making false statements, failure to pay tax obligations, receiving
stolen property, collusion or conspiracy.
Page 1 of2
Agreement for Professional ServiCes / Anthony J. Baldere
Ethical Standards for Contractors Exhibit D
. .
. T.
e. Made (or makes) any false statement(s) or representation(s) with
respect to this Agreement.
2. If fraudulent, criminal or other seriously 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 or more of the
following occurs:
1. The City determines that Contractor no longer has the financial capability4
or business experience5 to perform the terms 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 ruled 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 insolvent, 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 Bankruptcy Code (11
V.S.C.), as amended, or under any similar law or statute of the United States or any state thereof, is
adjudged bankrupt or insolvent in proceedings under such laws, or a receiver or trustee is appointed for all
or substantially all of the assets of Contractor.
Loss of personnel deemed essential by the City for the successful performance of the obligations
of the Contractor to the City.
5
Agreement for Professional Services / Anthony J. Baldere
Ethical Standards for Contractors Exhibit D
Page 2 of2
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AGREEMENT FOR PROFESSIONAL SERVICES
BY AND BETWEEN
CITY OF VERNON, CALIFORNIA
AND
ANTHONYJ.BALDERE
EXHIBIT E
AFFIDA VIT OF COMPLIANCE WITH ETHICAL STANDARDS
[CITY OF VERNON]
I, Anthony J. Baldere, 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
VERNON, 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 neither 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
perjury under the laws of the State of California.
an individual sole proprietor
Anthony J. Baldere
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, partllership, joint venture, or any other legal entity, other than
a sole proprietorship, shall be attached.
Agreement for Professional Services / Anthony J. Baldere
Affidavit of Compliance Exhibit E
Page 1 of 1