Resolution No. 8991I RESOLUTION NO. 8991
2
3 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION OF
4 A MASTER CONSULTING SERVICES AGREEMENT BY AND
BETWEEN THE CITY OF VERNON AND NEW ENERGY
5 ASSOCIATES, LLC, A SIEMENS COMPANY
6
7 WHEREAS, the City of Vernon (the "City") is a chartered
8 municipal corporation of the State of California that owns and
9 operates a system for the generation, purchase, transmission,
10 distribution and sale of electric capacity and energy; and
11 WHEREAS, the City needs the services of a consultant to
12 provide as -requested services relating to the management and operation
13 of generation and transmission assets including, but not limited to,
14 performing operational studies of the Malburg Generating Station,
15 developing asset portfolio position reports considering key risk
16 factors, performing operational and economic studies for new power
17 plants, reviewing future electric power purchases and sales
18 transactions, reviewing gas supply transactions, assessing the exiting
19 and future use of high -voltage transmission assets and reviewing work
20 flow in the operations and procurement areas (collectively, the
21 "Services"); and
22 WHEREAS, the City's Light & Power Department believes that
23 New Energy Associates, LLC ("New Energy") can provide the necessary
24 Services and the Director of Light & Power has recommended that an
25 agreement with New Energy be approved; 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
necessity to enter into an agreement with New Energy.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF VERNON AS FOLLOWS:
SECTION 1: The City Council of the City of Vernon hereby
finds and determines that the recitals contained hereinabove are true
and correct.
SECTION 2: The City Council of the City of Vernon hereby
approves the Master Consulting Services Agreement and Service Request
No. 1 with New Energy, in substantially the same form as the copy
which is attached hereto as Exhibit A and incorporated by reference.
SECTION 3: The City Council of the City of Vernon hereby
authorizes the Mayor to execute said Agreement and Service Request
for, and on behalf of, the City of Vernon and the Acting City Clerk
is hereby authorized to attest thereto.
SECTION 4: The City Council of the City of Vernon hereby
authorizes the Acting City Clerk, or his designee, to make whatever
nonsubstantive, administrative and/or text changes, upon advice of
counsel, to the Agreement and Service Request.
SECTION 5: The City Council of the City of Vernon hereby
directs the Acting City Clerk, or his designee, to send one fully
executed Agreement and Service Request to:
New Energy Associates, LLC, a Siemens Company
Attn. Ms. Deane S. Price, President
400 Interstate North Parkway, Suite 1500
Atlanta, Georgia 30339
- 2 -
SECTION 6: 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 22°d day of March, 2006.
r
LEONIS C. M�BUR�GMa�yor
ATTES :f
i
BRUCE V. LKENHORST, JR.
Acting City Clerk
- 3 -
STATE OF CALIFORNIA )
) ss
COUNTY OF LOS ANGELES )
I, BRUCE V. MALKENHORST, JR., Acting City Clerk of the City
of Vernon, do hereby certify that the foregoing Resolution, being
Resolution No. 8991, was duly adopted by the City Council of the City
of Vernon at a regular meeting of the City Council duly held on
Wednesday, March 22, 2006, and thereafter was duly signed by the Mayor
of the City of Vernon.
1
BRUCE MALKENHORST, JR.
Acting City Clerk
(SEAL)
- 4 -
EXHIBIT
0
MASTER CONSULTING SERVICES AGREEMENT
THIS AGREEMENT, effective upon execution by the parties ("Effective Date") is between New Energy
Associates, LLC., A Siemens Company ("NewEnergy") and City of Vernon ("Client").
WITNESSETH:
WHEREAS, Client desires to purchase certain consulting services provided by NewEnergy and
NewEnergy is willing to provide to Client such consulting services, all as provided in this Agreement;
NOW, THEREFORE, the parties agree as follows:
1. TERM OF AGREEMENT
The term of this Agreement will commence on the date specified in the first sentence of this
Agreement (the "Effective Date") and will continue for two (2) years from the Effective Date unless
earlier terminated as provided herein.
2. SERVICES
(a) Direction
The services to be performed hereunder by NewEnergy will be directed by Mr. Matt Harris
(the "NewEnergy Representative").
(b) Scope of Services
NewEnergy will provide to Client consultative services on an as requested basis services
related to the management and operation of Client's generation and transmission assets
(collectively, the "Services"). Each consultative services will be set forth in separate service
requests executed by the parties ("Service Requests"). Each Service Request will be subject
to the terms and conditions specified in this Agreement. A Service Request will include in
detail: (i) a description of the services to be performed; (ii) a timetable for completion of
services (iii) any responsibilities of NewEnergy and the Client; (iv) the term of such Service
Request (including any renewal terms); (v) anticipated total charges; and (vi) such other
items as may be appropriate.
NewEnergy expressly warrants and agrees to perform the Services at the highest
performance level of the business consulting services industry. NewEnergy further agrees
to expend all reasonable efforts necessary to accomplish the tasks assigned hereunder.
3. NEWENERGY'S PROFESSIONAL SERVICES CHARGES
NewEnergy will charge its then applicable consulting rates for all services performed under this
Agreement. A copy of NewEnergy's current rates is attached hereto as Attachment 1. The total
billing for consulting rates under this Agreement will not exceed $200,000 without Client's prior
written approval.
City of Vernon Master Consulting Services Agreement Page 1
4. PAYMENT FOR SERVICES
For the Services to be provided under this Agreement, Client agrees to pay NewEnergy thirty (30)
days from date of invoice unless agreed to otherwise in a Service Request. Any sum not paid
when due will bear interest until paid at a rate of interest equal to the lesser of (i) the prime rate
established from time to time by Citibank N.A., New York, plus two percent (2%) or, (ii) the
maximum rate of interest allowed by applicable law.
5. EXPENSES AND TAXES
NewEnergy will be responsible for all reasonable expenses incurred in the course of performing
the Services under this Agreement plus ten percent (10%) for NewEnergy's administrative costs
associated therewith. However, Client will reimburse NewEnergy for travel and travel -related
expenses directly related to the conduct of the Services, provided that any such expenses are
reasonable, necessary and are approved in advance by the Client. At Client's request,
NewEnergy will provide supporting documentation to Client on a monthly basis for any
reimbursable expenses incurred during the preceding month. NewEnergy will pay and Client will
reimburse NewEnergy for all taxes based upon the charges in this Agreement or the Services or
materials provided under this Agreement, including any applicable state and local sales, privilege,
or excise taxes.
6. RECORD KEEPING AND AUDITS
NewEnergy shall establish and shall retain, for a period of two (2) years following the performance
of the Services under each Service Request, records that adequately substantiate the applicability
and accuracy of charges to Client for such Services and any expenses reimbursed by NewEnergy
pursuant to this Agreement. Upon receipt of reasonable advance notice from Client, NewEnergy
shall produce such records for audit by Client.
7. CONFIDENTIALITY
During the term of this Agreement, NewEnergy and Client may have access to confidential or
proprietary information belonging to the other party. Until the expiration of two (2) years from the
date of this Agreement, NewEnergy and Client each agrees to use the same means as it uses to
protect its own confidential information, but in no event less than reasonable means, to avoid
disclosure to any third party any of the other's information which has been identified as confidential
or proprietary and to use such information only in performing the activities contemplated under this
Agreement. The foregoing shall not apply to information which is (i) already known by the recipient
party without an obligation of confidentiality other than under this Section; (ii) publicly known or
becomes publicly known through no unauthorized act of the recipient party; (iii) rightfully received
from a third party; (iv) independently developed by the recipient party without use of any such
confidential information; (v) disclosed by the owner to the third party without similar restrictions; or
(vi) required by disclosure by reason of legal, accounting or regulatory requirements beyond the
reasonable control of the recipient party. Upon written request at the expiration of this Agreement,
all such documented confidential information (and all copies thereof) owned by the requesting
party will be returned to the requesting party.
City of Vernon Master Consulting Services Agreement Page 2
8. OWNERSHIP OF WORK PRODUCT
Except as otherwise set forth in a Service Request, any and all analyses, evaluations, reports,
memoranda, and letters, which are delivered to Client by NewEnergy under this Agreement, (the
"Work Product") are works specially ordered for use as a contribution to a collective work or
otherwise shall be deemed a "work for hire" and the Work Product will be and remain the
exclusive property of Client. Notwithstanding the foregoing, subject to NewEnergy's confidentiality
obligations under this Agreement, NewEnergy may (i) use the intangible ideas, concepts and
know-how retained by NewEnergy's employees as a result of the performance of the Services
under this Agreement and (ii) develop similar Work Product for itself of other parties.
9. WARRANTY
NewEnergy represents and warrants that all services will be performed in a professional and
workmanlike manner. NEWENERGY MAKES NO REPRESENTATION OR WARRANTY,
EXPRESS OR IMPLIED, REGARDING ANY MATTER INCLUDING THE MERCHANTABILITY,
SUITABILITY, ORIGINALITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, OR
RESULTS TO BE DERIVED FROM THE USE OF THE DEVELOPED SOFTWARE OR ANY
SERVICES, SYSTEM, HARDWARE OR OTHER MATERIALS PROVIDED UNDER THIS
AGREEMENT.
10. LIMITATION OF LIABILITY
EXCEPT AS SET FORTH IN THIS SECTION 10, FOR ANY MATTER ARISING IN CONNECTION
WITH THIS AGREEMENT, OR ANY SERVICE REQUEST, HOWEVER BASED, IN NO EVENT
WILL (A) EACH PARTY'S AGGREGATE LIABILITY TO THE OTHER EXCEED THE TOTAL
AMOUNT PAID FOR ALL SERVICES PROVIDED UNDER THIS AGREEMENT, OR SUCH
SERVICE REQUEST, DURING THE PERIOD SIX (6) MONTHS PRIOR TO THE MONTH IN WHICH
THE EVENT, ACT, DELAY, OR OMISSION GIVING RISE TO SUCH LIABILITY FIRST
OCCURRED, AND (B) THE MEASURE OF DAMAGES PAYABLE BY EITHER PARTY INCLUDE,
NOR WILL EITHER PARTY BE LIABLE FOR, ANY AMOUNTS FOR LOSS OF INCOME, PROFIT
OR SAVINGS OR INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY
PARTY, INCLUDING THIRD PARTIES. THE LIMITATIONS SET FORTH IN THE PRECEDING
SENTENCE WILL NOT APPLY WITH RESPECT TO DAMAGES OCCASIONED BY RECKLESS
OR INTENTIONAL TORTIOUS MISCONDUCT OF A PARTY OR BREACH OF SECTION 4
(CONFIDENTIALITY). EACH PARTY WILL HAVE A DUTY TO MITIGATE DAMAGES FOR WHICH
THE OTHER IS RESPONSIBLE. NO CLAIM AND DEMAND FOR ARBITRATION OR CAUSE OF
ACTION WHICH AROSE OUT OF AN EVENT OR EVENTS WHICH OCCURRED MORE THAN
TWO YEARS PRIOR TO THE FILING OF A DEMAND FOR ARBITRATION OR SUIT ALLEGING A
CLAIM OR CAUSE OF ACTION MAY BE ASSERTED BY EITHER PARTY AGAINST THE OTHER.
City of Vernon Master Consulting Services Agreement Page 3
11. INDEPENDENT CONTRACTOR STATUS
The relationship between NewEnergy and Client is an independent contractor relationship.
Neither NewEnergy nor any employee of NewEnergy is an agent or employee of Client, and
neither Client nor any employee of Client is an agent or employee of NewEnergy. This Agreement
does not and will not be construed to entitle either party or any of their respective employees to
any benefit, privilege or other amenities of employment by the other. Client will not be deemed
under any of the provisions of this Agreement to have assumed any liability or risk for the health,
welfare or safety of NewEnergy.
12. TERMINATION
Except as specifically set forth in a Service Request, this Agreement may be terminated as follows:
(a) For Cause
In the event that either party materially or repeatedly defaults in the performance of any
obligation hereunder, which default shall not be cured within ten (10) days after written
notice is given to the defaulting party by the nondefaulting party specifying the default,
then the nondefaulting party may, upon giving written notice thereof to the defaulting party,
terminate this Agreement as of the date specified in such notice. Upon termination, all
work performed under this Agreement and reimbursable expenses shall be invoiced by
NewEnergy and paid by Client pursuant to Sections 4 & 5.
(b) Elective Termination
Notwithstanding any other provision of this Agreement, Client may terminate this
Agreement at any time upon not less than thirty (30) days advance written notice to
NewEnergy, following which all work performed under this Agreement and reimbursable
expenses shall be invoiced by NewEnergy and paid by Client pursuant to pursuant to
Sections 4 & 5.
13. MEDIA RELEASES
Any news release, public announcement, advertisement or publicity proposed to be released by
NewEnergy concerning its activities in connection with this Agreement will be subject to the
approval of Client.
14. ASSIGNMENT
Neither this Agreement nor any interest herein may be assigned, in whole or in part, by Client
without the prior written consent of NewEnergy, which shall not be unreasonably withheld, delayed
or conditioned; provided, however, that NewEnergy may assign this Agreement to any successor -
in -interest by reason of a sale of substantially all of the assets of NewEnergy, or the merger or
consolidation of NewEnergy with another entity.
City of Vernon Master Consulting Services Agreement Page 4
15. NOTICE
Wherever under this Agreement one party is required or permitted to give notice to the other, such
notice will be in writing and will be deemed given the third day after its mailing, postage prepaid to
the recipient party addressed as follows:
In the case of NewEnergy:
New Energy Associates, LLC — A Siemens Company
400 Interstate North Parkway, Suite 1500
Atlanta, Georgia 30339
Attention: Ms. Deane S. Price
President
In the case of Client
City of Vernon Light &
Power Department
4305 Santa Fe Ave.
Vernon, CA 90058
Attention: Mr. Donal O'Callaghan
Notices may also be delivered by hand or transmitted by telegraph, telex or telecopier and will be
effective when received by the addressee. Either party may change its address for notices upon
giving ten (10) days written notice of the change to the other party.
16. SURVIVAL OF TERMS
Section 7 Confidentiality shall survive termination of this Agreement for any reason.
17. ENTIRE AGREEMENT
This Agreement constitutes the entire understanding and agreement of and between the parties
with respect to the subject matter of this Agreement and supersedes all prior representations and
agreements respecting such subject matter. This Agreement will not be varied by any oral
agreements or representations or otherwise except by an instrument in writing subsequent to the
Effective Date duly executed by authorized representatives of the parties. The section and
paragraph headings herein are for convenience only and shall not limit in any way the scope of
any provision of this Agreement. This Agreement will be governed by and construed in
accordance with the laws, other than choice of law rules, of the State of California.
18. INSURANCE
Consultant shall maintain in full force and effect, and comply with the insurance coverage
as described in Attachment A.
City of Vernon Master Consulting Services Agreement Page 5
IN WITNESS WHEREOF, 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 when executed.
OWNER:
City of Vernon
Leonis C. Malburg, Mayor
APPROVED AS TO FORM:
A
Eric Fresch, City Attorney
Date:
CONTRACTOR:
New Energy Associates, LLC, A Siemens Company
By:
(Name, Title)
Date:
Attest:
Bruce V. Malkenhorst, Jr., City Clerk
City of Vernon Master Consulting Services Agreement Page 6
ATTACHMENT 1
i 4mn
&Nowlooi
ASSOCIATES w
A Siemens Company
Professional Services Fee Schedule
All Funds Payable in U.S. Dollars
eel#leeraices
Iur
wry
Administrative
$75
$600
Technician
$105
$840
Associate Consultant
$150
$1200
Consultant
$175
$1400
Senior Consultant
$205
$1640
Lead Consultant
$235
$1880
Project Manager
$235
$1880
Principal Consultant
$275
$2200
Director
$350
$2800
Vice President
$380
$3040
Software Training
$210
$1680
15% Adder for Work for Litigation / Regulatory Proceedings
Rates are subject to change.
Daily Rates based on an eight -hour workday
Confidential
City of Vernon Master Consulting Services Agreement Attachment 1 Page 1
ATTACHMENT A
INSURANCE SCHEDULE (CONSULTANT)
The consultant shall provide proof of insurance, including a standard certificate of insurance, in
at least the following amounts and coverage (combined single limit permitted):
1. Coveraee and Limits
Bodily Injury PropeLty Damage
Hazards Each Person Each Accident Each Accident
Automobile Liabilitv
Owned Automobiles $500,000 $1,000,000 $500,000
Hired Automobiles $500,000 $1,000,000 $500,000
Non -Owned
Automobiles $500,000 $1,000,000 $500,000
Workers' Compensation $ Statutory
Employers' Liability $1,000,000 per employer
11. Liabili
Premises Operations $1,000,000 $2,000,000 $1,000,000
Elevators
(if applicable) $1,000,000 $2,000,000 $1,000,000
Independent
Contractors $1,000,000 $2,000,000 $1,000,000
Products - Completed
Operations $1,000,000 $2,000,000 $1,000,000
Contractual Liability $1,000,000 $2,000,000 $1,000,000
Professional Liability $2,000,000 $2,000,000 $2,000,000
a. The general liability policy shall contain the following special endorsements
which shall be noted on or attached to the standard certificate of insurance:
1. An endorsement naming the City of Vernon, its officers, and
employees as insureds under the policy.
2. An endorsement providing the City of Vernon thirty (30) days notice
of cancellation or material reduction of coverage.
3. An endorsement providing coverage for all operations under this
agreement.
4. Such other endorsement as may be required by addendum hereto.
5. A copy of your general and professional insurance policy declarations
page.
6. Copy of schedule of forms of endorsements.
Service Request No.1
This Service Request No.1 ("Service Request') is effective upon the execution date below and is attached a
made a part of the Master Consulting Services Agreement between New Energy Associates, LLC
("NewEnergy") and City of Vernon ("Client") (the "Agreement").
1. DESCRIPTION OF SERVICES
Under this Service Request NewEnergy agrees to provide various Services including but not
limited to (i) performing operational studies of the Malburg Generating Stations, (ii) developing
asset portfolio position reports considering key risk factors, (iii) performing operational and
economic studies for new power plants under consideration by Client, (iv) reviewing future electric
power purchase and sales transactions, (v) reviewing Client's gas supply transactions, (vi)
assessing the existing and future use of the Client's high -voltage transmission assets and (vii)
reviewing Client's work flow in the operations and procurement areas.
2. CLIENT RESPONSIBILITY
Client will provide data and access to business unit managers as necessary for NewEnergy to
provide the Services.
3. CHARGES
Services will be performed on a time -and -materials basis and Services will be paid for by Client
pursuant to Section 4 and Attachment 1 to the Agreement. Client agrees to reimburse NewEnergy
for -reasonable travel and travel -related out-of-pocket expenses pursuant to Section 5 of the
Agreement.
4. TERM
The term of this Service Request shall begin upon the execution date and remain in effect until
July 9, 2006 unless extended by mutual agreement or terminated in accordance with Section 12 of
the Master Services Consulting Agreement.
5. OTHER TERMS
Not applicable
6. CONFLICTS
This Service Request is subject to all of the terms and conditions of the Agreement. However, if there
is a conflict or inconsistency between the Agreement and this Service Request, this Service Request
shall govern. Any modifications to the description of services or any section of this Service Request
must be mutually agreed upon in writing as an addendum to this Service Request.
City of Vernon Master Consulting Services Agreement Service Request No.1 Page 1
IN WITNESS WHEREOF, the parties hereto have caused this Service Request No.1 to be executed as of
the day and year first set forth below.
ACCEPTED:
New Energy Associates, LLC, A Siemens Company
Suite 1500
400 Interstate North Parkway
Atlanta, Georgia 30339
Authorized
Signature:
Printed
Name:
Title:
Date:
ACCEPTED:
City of Vernon
4305 Santa Fe Ave.
Vernon, CA 90058
Authorized
Signature:
Printed
Name:
Title:
Date:
City of Vernon Master Consulting Services Agreement Service Request No.1 Page 2
SUPPORTING
DOCUMENTS
MASTER CONSULTING SERVICES AGREEMENT
THIS AGREEMENT, effective upon execution by the parties ("Effective Date") is between New Energy
Associates, LLC., A Siemens Company ("NewEnergy") and City of Vernon ("Client").
WITNESSETH:
WHEREAS, Client desires to purchase certain consulting services provided by NewEnergy and
NewEnergy is willing to provide to Client such consulting services, all as provided in this Agreement;
NOW, THEREFORE, the parties agree as follows:
1. TERM OF AGREEMENT
The term of this Agreement will commence on the date specified in the first sentence of this
Agreement (the "Effective Date") and will continue for two (2) years from the Effective Date unless
earlier terminated as provided herein.
2. SERVICES
(a) Direction
The services to be performed hereunder by NewEnergy will be directed by Mr. Matt Hams
(the "NewEnergy Representative").
(b) Scope of Services
NewEnergy will provide to Client consultative services on an as requested basis services
related to the management and operation of Client's generation and transmission assets
(collectively, the "Servk:esI. Each consultative services will be set forth in separate service
requests executed by the parties ("Service Requests"). Each Service Request will be subject
to the terms and conditions specified in this Agreement. A Service Request will include in
detail: (i) a description of the services to be performed; (ii) a timetable for completion of
services (iii) any responsibilities of NewEnergy and the Client; (iv) the term of such Service
Request (including any renewal terms); (v) anticipated total charges; and (vi) such other
items as may be appropriate.
NewEnergy expressly warrants and agrees to perform the Services at the highest
performance level of the business consulting services industry. NewEnergy further agrees
to expend all reasonable efforts necessary to accomplish the tasks assigned hereunder.
3. NEWENERGY'S PROFESSIONAL SERVICES CHARGES
NewEnergy will charge its then applicable consulting rates for all services performed under this
Agreement. A copy of NewEnergy's current rates is attached hereto as Attachment 1. The total
billing for consulting rates under this Agreement will not exceed $200,000 without Client's prior
written approval.
City of Vernon Master Consulting Services Agreement Page 1
4. PAYMENT FOR SERVICES
For the Services to be provided under this Agreement, Client agrees to pay NewEnergy thirty (30)
days from date of invoice unless agreed to otherwise in a Service Request. Any sum not paid
when due will bear interest until paid at a rate of interest equal to the lesser of (i) the prime rate
established from time to time by Citibank N.A., New York, plus two percent (2%) or, (ii) the
maximum rate of interest allowed by applicable law.
5. EXPENSES AND TAXES
NewEnergy will be responsible for all reasonable expenses incurred in the course of performing
the Services under this Agreement plus ten percent (10%) for NewEnergy's administrative costs
associated therewith. However, Client will reimburse NewEnergy for travel and travel -related
expenses directly related to the conduct of the Services, provided that any such expenses are
reasonable, necessary and are approved in advance by the Client. At Client's request,
NewEnergy will provide supporting documentation to Client on a monthly basis for any
reimbursable expenses incurred during the preceding month. NewEnergy will pay and Client will
reimburse NewEnergy for all taxes based upon the charges in this Agreement or the Services or
materials provided under this Agreement, including any applicable state and local sales, privilege,
or excise taxes.
6. RECORD KEEPING AND AUDITS
NewEnergy shall establish and shall retain, for a period of two (2) years following the performance
of the Services under each Service Request, records that adequately substantiate the applicability
and accuracy of charges to Client for such Services and any expenses reimbursed by NewEnergy
pursuant to this Agreement. Upon receipt of reasonable advance notice from Client, NewEnergy
shall produce such records for audit by Client.
7. CONFIDENTIALITY
During the term of this Agreement, NewEnergy and Client may have access to confidential or
proprietary information belonging to the other party. Until the expiration of two (2) years from the
date of this Agreement, NewEnergy and Client each agrees to use the same means as it uses to
protect its own confidential information, but in no event less than reasonable means, to avoid
disclosure to any third party any of the other's information which has been identified as confidential
or proprietary and to use such information only in performing the activities contemplated under this
Agreement. The foregoing shall not apply to information which is (i) already known by the recipient
party without an obligation of confidentiality other than under this Section; (ii) publicly known or
becomes publicly known through no unauthorized act of the recipient party; (iii) rightfully received
from a third party; (iv) independently developed by the recipient party without use of any such
confidential information; (v) disclosed by the owner to the third party without similar restrictions; or
(vi) required by disclosure by reason of legal, accounting or regulatory requirements beyond the
reasonable control of the recipient party. Upon written request at the expiration of this Agreement,
all such documented confidential information (and all copies thereof) owned by the requesting
party will be returned to the requesting party.
City of Vernon Master Consulting Services Agreement Page 2
8. OWNERSHIP OF WORK PRODUCT
Except as otherwise set forth in a Service Request, any and all analyses, evaluations, reports,
memoranda, and letters, which are delivered to Client by NewEnergy under this Agreement, (the
"Work Product") are works specially ordered for use as a contribution to a collective work or
otherwise shall be deemed a "work for hire" and the Work Product will be and remain the
exclusive property of Client. Notwithstanding the foregoing, subject to NewEnergy's confidentiality
obligations under this Agreement, NewEnergy may (i) use the intangible ideas, concepts and
know-how retained by NewEnergy's employees as a result of the performance of the Services
under this Agreement and (ii) develop similar Worts Product for itself of other parties.
9. WARRANTY
NewEnergy represents and warrants that all services will be performed in a professional and
workmanlike manner. NEWENERGY MAKES NO REPRESENTATION OR WARRANTY,
EXPRESS OR IMPLIED, REGARDING ANY MATTER INCLUDING THE MERCHANTABILITY,
SUITABILITY, ORIGINALITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, OR
RESULTS TO BE DERIVED FROM THE USE OF THE DEVELOPED SOFTWARE OR ANY
SERVICES, SYSTEM, HARDWARE OR OTHER MATERIALS PROVIDED UNDER THIS
AGREEMENT.
10. LIMITATION OF LIABILITY
EXCEPT AS SET FORTH IN THIS SECTION 10, FOR ANY MATTER ARISING IN CONNECTION
WITH THIS AGREEMENT, OR ANY SERVICE REQUEST, HOWEVER BASED, IN NO EVENT
WILL (A) EACH PARTY'S AGGREGATE LIABILITY TO THE OTHER EXCEED THE TOTAL
AMOUNT PAID FOR ALL SERVICES PROVIDED UNDER THIS AGREEMENT, OR SUCH
SERVICE REQUEST, DURING THE PERIOD SIX (6) MONTHS PRIOR TO THE MONTH IN WHICH
THE EVENT, ACT, DELAY, OR OMISSION GIVING RISE TO SUCH LIABILITY FIRST
OCCURRED, AND (B) THE MEASURE OF DAMAGES PAYABLE BY EITHER PARTY INCLUDE,
NOR WILL EITHER PARTY BE LIABLE FOR, ANY AMOUNTS FOR LOSS OF INCOME, PROFIT
OR SAVINGS OR INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY
PARTY, INCLUDING THIRD PARTIES. THE LIMITATIONS SET FORTH IN THE PRECEDING
SENTENCE WILL NOT APPLY WITH RESPECT TO DAMAGES OCCASIONED BY RECKLESS
OR INTENTIONAL TORTIOUS MISCONDUCT OF A PARTY OR BREACH OF SECTION 4
(CONFIDENTIALITY). EACH PARTY WILL HAVE A DUTY TO MITIGATE DAMAGES FOR WHICH
THE OTHER IS RESPONSIBLE. NO CLAIM AND DEMAND FOR ARBITRATION OR CAUSE OF
ACTION WHICH AROSE OUT OF AN EVENT OR EVENTS WHICH OCCURRED MORE THAN
TWO YEARS PRIOR TO THE FILING OF A DEMAND FOR ARBITRATION OR SUIT ALLEGING A
CLAIM OR CAUSE OF ACTION MAY BE ASSERTED BY EITHER PARTY AGAINST THE OTHER.
City of Vernon Master Consulting Services Agreement Page 3
11. INDEPENDENT CONTRACTOR STATUS
The relationship between NewEnergy and Client is an independent contractor relationship.
Neither NewEnergy nor any employee of NewEnergy is an agent or employee of Client, and
neither Client nor any employee of Client is an agent or employee of NewEnergy. This Agreement
does not and will not be construed to entitle either party or any of their respective employees to
any benefit, privilege or other amenities of employment by the other. Client will not be deemed
under any of the provisions of this Agreement to have assumed any liability or risk for the health,
welfare or safety of NewEnergy.
12. TERMINATION
Except as specifically set forth in a Service Request, this Agreement may be terminated as follows:
(a) For Cause
In the event that either party materially or repeatedly defaults in the performance of any
obligation hereunder, which default shall not be cured within ten (10) days after written
notice is given to the defaulting party by the nondefaulting party specifying the default,.
then the nondefaulting party may, upon giving written notice thereof to the defaulting party,
terminate this Agreement as of the date specified in such notice. Upon termination, all
work performed under this Agreement and reimbursable expenses shall be invoiced by
NewEnergy and paid by Client pursuant to Sections 4 & 5.
(b) Elective Termination
Notwithstanding any other provision of this Agreement, Client may terminate this
Agreement at any time upon not less than thirty (30) days advance written notice to
NewEnergy, following which all work performed under this Agreement and reimbursable
expenses shall be invoiced by NewEnergy and paid by Client pursuant to pursuant to
Sections 4 & 5.
13. MEDIA RELEASES
Any news release, public announcement, advertisement or publicity proposed to be released by
NewEnergy concerning its activities in connection with this Agreement will be subject to the
approval of Client.
14. ASSIGNMENT
Neither this Agreement nor any interest herein may be assigned, in whole or in part, by Client
without the prior written consent of NewEnergy, which shall not be unreasonably withheld, delayed
or conditioned; provided, however, that NewEnergy may assign this Agreement to any successor -
in -interest by reason of a sale of substantially all of the assets of NewEnergy, or the merger or
consolidation of NewEnergy with another entity.
City of Vernon Master Consulting Services Agreement Page 4
15. NOTICE
Wherever under this Agreement one party is required or permitted to give notice to the other, such
notice will be in writing and will be deemed given the third day after its mailing, postage prepaid to
the recipient party addressed as follows:
In the case of NewEnergy:
New Energy Associates, LLC — A Siemens Company
400 Interstate North Parkway, Suite 1500
Atlanta, Georgia 30339
Attention: Ms. Deane S. Price
President & CEO
In the case of Client
City of Vernon Light &
Power Department
4305 Santa Fe Ave.
Vernon, CA 90058
Attention: Mr. Donal O'Callaghan
Notices may also be delivered by hand or transmitted by telegraph, telex or telecopier and will be
effective when received by the addressee. Either party may change its address for notices upon
giving ten (10) days written notice of the change to the other party.
16. SURVIVAL OF TERMS
Section 7 Confidentiality shall survive termination of this Agreement for any reason.
17. ENTIRE AGREEMENT
This Agreement constitutes the entire understanding and agreement of and between the parties
with respect to the subject matter of this Agreement and supersedes all prior representations and
agreements respecting such subject matter. This Agreement will not be varied by any oral
agreements or representations or otherwise except by an instrument in writing subsequent to the
Effective Date duly executed by authorized representatives of the parties. The section and
paragraph headings herein are for convenience only and shall not limit in any way the scope of
any provision of this Agreement. This Agreement will be governed by and construed in
accordance with the laws, other than choice of law rules, of the State of California.
18. INSURANCE
Consultant shall maintain in full force and effect, and comply with the insurance coverage as
described in Attachment 2.
City of Vernon Master Consulting Services Agreement Page 5
IN WITNESS WHEREOF, 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 when executed.
CLIENT:
City of Vernon
s_C. Malbur , M
��
L i9
APPROVED AS TO FORM:
By:
Eric Fresch, City Attorney
Date: l
d
NEWENERGY:
New Energy Associates, LLC, A Siemens Company
Attest:
Bruce V. Ma enhorst, Jr:/City Clerk
Acting
By. � ) L-.
Name, Title) Deam S. Pdw
Date: 03-2 1- ,'-L0p4President & CEO
City of Vernon Master Consulting Services Agreement Page 6
ATTACHMENT
Aah
U1Y 11pr
UI
ASSOCIATES
A Siemens Company
Professional Services Fee Schedule
All Funds Payable in U.S. Dollars
Consulting Services
Administrative
tHourly
5
jDalffy
0
Technician
$105
$840
Associate Consultant
$150
$1200
Consultant
$175
$1400
Senior Consultant
$205
J1640
Lead Consultant
$235
$1880
Project Manager
$235
$1880
Principal Consultant
$275
$2200
Director
$350
$2800
Vice President
$380
$3040
Software Training 7r$210
$1680
15% Adder for Work for LiNg&don /Regulatory Proceedings
Rates are subject to change.
Daily Rates based on an eight -hour workday
Confidential
-Yv,vv,1 „ mobtui wnsulimg cervices agreement Attachment 1 Page 1
ATTACHMENT 2
INSURANCE SCHEDULE (CONSULTANT)
The consultant shall provide proof of insurance, including a standard certificate of insurance, in at least the
following amounts and coverage (combined single limit permitted):
I. Coverage and Limits
Bodily
Iniury
Property Damage
Hazards
Each Person
Each Accident
Each Accident
Automobile Liability
Owned Automobiles
$500,000
$1,000,000
$500,000
Hired Automobiles
$500,000
$1,000,000
$500,000
Non -Owned Automobiles
$500,000
$1,000,000
$500,000
Workers' Compensation
$ Statutory
Employers' Liability
$1,000,000
Per employer
IL Liabililtv
Bodily
Iniury
Property Damage
Hazards
Each
Person
Each Accldent
Each Accident
Premises Operations
$1,000,000
$2,000,000
$1,000,000
Elevators if applicable)
$1,000,000
$2,000,000
$1,000,000
Independent Contractors
$1,000,000
$2,000,000
$1,000,000
Products —Completed
Operations
$1,000,000
$2,000,000
$1,000,000
Contractual Liability
$1,000,000
$2,000,000
$1,000,000
Professional 1.iabiii _
$2,000,000
$2,000,000
$1,000,000
a. The general liability policy shall contain the following special endorsements which
shall be noted on or attached to the standard certificate of insurance:
1. An endorsement naming the City of Vernon, its officers, and employees as
insureds under the policy.
2. An endorsement providing the City of Vernon thirty (30) days notice of
cancellation or material reduction of coverage.
3. An endorsement providing coverage for all operations under this agreement.
4. Such other endorsement as may be required by addendum hereto.
5. A copy of your general and professional insurance policy declarations page.
6. Copy of schedule of forms of endorsements.
City of Vernon Master Consulting Services Agreement Attachment 2 Page 1
Service Request No.1
This Service Request No. i ("Service Request's is effective upon the execution date below and is attached a
made a part of the Master Consulting Services Agreement between New Energy Associates, LLC
("NewEnergy") and City of Vernon ("Client) (the "Agreement").
1. DESCRIPTION OF SERVICES
Under this Service Request NewEnergy agrees to provide various Services including but not
limited to (i) performing operational studies of the Malburg Generating Stations, (ii) developing
asset portfolio position reports considering key risk factors, (iii) performing operational and
economic studies for new power plants under consideration by Client, (iv) reviewing future electric
power purchase and sales transactions, (v) reviewing Client's gas supply transactions, (vi)
assessing the existing and future use of the Client's high -voltage transmission assets and (vii)
reviewing Client's work flow in the operations and procurement areas.
2. CLIENT RESPONSIBILITY
Client will provide data and access to business unit managers as necessary for NewEnergy to
provide the Services.
3. CHARGES
Services will be performed on a time -and -materials basis and Services will be paid for by Client
pursuant to Section 4 and Attachment 1 to the Agreement. Client agrees to reimburse NewEnergy
for reasonable travel and travel -related out-of-pocket expenses pursuant to Section 5 of the
Agreement.
4. T M -
The term of this Service Request shall begin upon the execution date and remain in effect until
July 9, 2006 unless extended by mutual agreement or terminated in accordance with Section 12 of
the Master Services Consulting Agreement.
5. OTHER TERMS
Not applicable
6. CONFLICTS
This Service Request is subject to all of the terms and conditions of the Agreement. However, if there
is a conflict or inconsistency between the Agreement and this Service Request, this Service Request
shall govem. Any modifications to the description of services or any section of this Service Request
must be mutually agreed upon in writing as an addendum to this Service Request.
City of Vernon Master Consulting Services Agreement
Service Request No.1
Page 1
c
IN WITNESS WHEREOF, the parties hereto have caused this Service Request No. 1 to be executed as of
the day and year first set forth below.
ACCEPTED: ACCEPTED:
New Energy Associates, LLC, A Siemens Company City of Vernon
400 Interstate North Parkway, Suite 1500 4305 Santa Fe Ave.
Atlanta, Georgia 30339 Vernon, CA 90058
Authorized
Authorized
Signature:
-' Signature:
Printed
Ms. Deane S. Price
Printed
Name:
Leonis C . Malburg
Name:
Title:
President & CEO
Title:
Mayor
Date:
3 -
Date:
3 ,'
ATTEST:
By: 1
Bruce V. lkenhorst, Jr.
Acting City Clerk
APPROVED AS RM:
Eric T. Fresch, City Attorney
City of Vernon Master Consulting Services Agreement Service Request No.1 Page 2