Resolution No. 93581'
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RESOLUTION NO. 9358
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION OF
AN AGREEMENT FOR PROFESSIONAL CONSULTING SERVICES
BY AND BETWEEN THE CITY OF VERNON AND THOMAS J.
LANGAN, DBA WTL TRADING
WHEREAS, the City of Vernon continues to need the services of
a consultant to provide assistance with market risk analysis for both
gas and power on an as -needed basis; and
WHEREAS, in the past, the City has utilized the services of
Thomas J. Langan, dba WTL Trading ("WTL"), in connection with risk
management matters for the Light and Power Department and assistance in
the implementation of the City's Resource Procurement Policy and Credit
Risk Management Policy adopted by Resolution No. 7276 on February 16,
1999; and
WHEREAS, the City Council of the City of Vernon has
determined that, pursuant to the provisions of Subsection (a) of
Section 2.27 of the Vernon City Code, it is in the public interest and
necessity to enter into an agreement with WTL.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF VERNON AS FOLLOWS:
SECTION 1: The City Council of the City of Vernon hereby
finds and determines that the recitals contained hereinabove are true
and correct.
SECTION 2: The City Council of the City of Vernon hereby
approves the Agreement for Professional Consulting Services with WTL,
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
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authorizes the Mayor or Mayor Pro-Tem to execute the Agreement with
WTL, and on behalf of, the City of Vernon and the City Clerk is hereby
authorized to attest thereto.
SECTION 4: The City Council of the City of Vernon hereby
directs the City Clerk, or her designee, to give one fully executed
Contract to:
Thomas J. Langan, dba WTL Trading
Attn: Thomas J. Langan
4352 Via Majorca
Cypress, CA 90630
SECTION 5: The City Council of the City of Vernon hereby
authorizes the City Administrator, or his designee, to make whatever
nonsubstantive, administrative and/or text changes, upon advice of
counsel, to the Agreement.
SECTION 6: The 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 2nd day of July, 2007.
Ir,
AlEST:
MANUELA GIRON, C ty Clerk
Loonis C. Malburg
Name:
Title: Mayor / -TeTrr-
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I STATE OF CALIFORNIA )
ss
2 COUNTY OF LOS ANGELES )
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4 I, MANUELA GIRON, City Clerk of the City of Vernon, do hereby
5 certify that the foregoing Resolution, being Resolution No. 9358, was
6 duly adopted by the City Council of the City of Vernon at a special
7 meeting of the City Council duly held on Monday, July 2, 2007, and
8 thereafter was duly signed by the Mayor or Mayor Pro-Tem of the City of
9 Vernon.
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MANUELA 4GION� ity Clerk
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EXHIBIT
1 AGREEMENT FOR PROFESSIONAL CONSULTING SERVICES
2
3 THIS AGREEMENT is made, entered into and executed in
4 duplicate originals, either copy of which may be considered and used
5 as the original hereof for all purposes, as of this 2nd day of July,
6 2007, in the City of Vernon, County of Los Angeles, California
7 BY AND BETWEEN THE CITY OF VERNON,
(hereinafter referred to as
8 "city")
4305 Santa Fe Avenue
9 Vernon, California 90058
10 AND THOMAS J. LANGAN, an
Individual dba
11 WTL TRADING (hereinafter
referred to as "Consultant")
12 4352 Via Majorca
Cypress, California 90630
13
14 RECITALS
15 WHEREAS, the City has determined that it continues to need
16 the services of a consultant to provide assistance with market risk
17 analysis for both gas and power on an as -needed basis; and
18 WHEREAS, City has utilized the services of Consultant in the
19 Past in connection with risk management matters for the Light and
20 Power Department and assistance in the implementation of City`s
21 Resource Procurement Plan & Credit Risk Management Policy adopted by
22 Resolution No. 7276 on February 16, 1999; and
23 WHEREAS, Consultant represents that he is qualified to
24 Perform such services under this Agreement for Professional Consulting
25 Services (hereinafter `Agreement"); and
26 WHEREAS, Consultant submitted a proposal to City dated on or
27 about June 11, 2007, (the "Proposal"), a copy of which is attached
28 hereto and incorporated by reference as Exhibit A; and
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WHEREAS, Consultant is willing to render such professional
services as hereinafter defined.
NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS SET
FORTH HEREIN:
I. SCOPE OF SERVICES.
Consultant shall perform market risk analysis for both gas
and power on an as -needed basis under the general supervision of the
City Administrator and/or the Director of Light & Power, or their
designees. Consultant's scope of services shall be assigned by the
City Administrator and/or the Director of Light & Power, or their
designees, and may include, but not be limited to, the following:
1. Develop a Gas Portfolio Management Strategy
document; assist with implementation of the document, including
execution and tracking of financial hedges;
2. Develop or update other documents and policies
(Strategic Direction, Risk Management Policy), ensuring consistency of
objectives and risk tolerance across the energy portfolio;
3. Execute other financial transactions to help
increase revenues across all energy resources;
4. Evaluate energy procurement activities for economy
and consistency with strategies; develop more advantageous
alternatives as appropriate;
5. Position tracking and mark -to -market reporting;
6. Financial settlements;
7. Management reporting;
8. Daily energy market analysis;
9. Portfolio risk analysis (VAR and stress case);
10. Credit tracking of trading counter -parties;
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1 11. Trading training in the use of financial tools for
2 hedging and marketing; and
3 12. Provide any additional services as requested and
4 authorized in writing by the City Administrator and/or the Director of
5 Light & Power, or their designees.
6 All services provided under this Agreement shall be provided
7 by the principal and competent staff members, if any, under the
8 supervision of the principal. All such services will be performed and
9 rendered diligently.
10 II. RELATIONSHIP OF PARTIES.
11 Consultant shall conform with any instruction given by City
12 to Consultant from time to time and may not make any representation,
13 promise, contract, agreement or do any other act binding City. City
14 is not responsible for any act or failure to act by Consultant in
15 excess of or contrary to City's instruction. Except as the City may
16 specify in writing, the Consultant shall have no authority, express or
17 implied, to act on behalf of the City in any capacity whatsoever as an
18 agent. The Consultant shall have no authority, express or implied,
19 pursuant to this Agreement to bind the City to any obligation
20 whatsoever.
21 III. PROGRESS REPORTS.
22 Consultant shall meet with City staff, upon City's request,
23 or as needed, in order to provide written reports or information
24 concerning the services being performed under this Agreement.
25 IV. TIME OF PERFORMANCE.
26 Consultant's services pursuant to this Agreement shall
27 commence upon the full execution of the agreement and continue until
28 June 30, 2009, unless otherwise terminated or extended.
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1 V. COMPENSATION.
2 1. Consulting Costs. City will pay Consultant for the
3 services performed at the rate of Sixteen Thousand Five Hundred
4 Dollars and No Cents ($16,500.00) per month. The Consultant will not
5 be compensated for automobile travel time in Los Angeles County and/or
6 Orange County.
7 2. Reimbursable Expenses. Consultant will be reimbursed
8 for automobile mileage at the rate of Forty Cents ($0.40) per mile.
9 Consultant will also be reimbursed for market data access fees
10 (approximately One Hundred Dollars and No Cents ($100.00) per month)
11 and for pre -authorized extraordinary expenses.
12 VI. METHOD OF PAYMENT.
13 Within thirty (30) days after the last day of any month in
14 which services have been performed or costs incurred hereunder,
15 Consultant shall submit an invoice to City stating the amount due
16 Consultant. Invoices shall contain an itemization of the services
17 rendered (i.e., the services performed, the date and time the services
18 were performed, and the number of hours spent). Payment of the
19 invoice shall be made after acceptance and approval by City within
20 thirty (30) days of receipt. Consultant shall be responsible for
21 paying any subcontractor used in the performance of this Agreement.
22 Subcontractors shall not bill the City directly. The City's approval
23 of the invoice shall not be unreasonably withheld.
24 VII. PRODUCTS OF CONSULTING.
25 All products of consulting services, including but not
26 limited to, manuals, documents and/or computer software, shall become
27 the property of the City and shall be delivered to the City before the
28 end of the performance of this Agreement. Basic notes and sketches,
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1 charts, computations and other data shall be made available to City
2 without restriction or limitation on their use.
3 VIII. CONFLICTS OF INTEREST.
4 In the event that a potential conflict should arise between
5 the interests of the City and the interests of any one of Consultant's
6 other clients, during Consultant's performance of services under this
7 Agreement, Consultant shall notify City of such potential conflict.
8 Notice of the existence of a potential conflict of interest shall be
g given in writing to City within ten (10) days of the perceived
10 conflict. The conflict of interest letter shall specify when the
11 potential conflict arose, the identity of the other party(ies) and the
12 facts that give rise to the potential conflict. In the event that a
13 potential conflict of interest is deemed by City to be an actual
14 conflict of interest, City may, at its discretion, terminate this
15 Agreement immediately.
16 IX. CONFIDENTIAL INFORMATION.
17 1. Access to Confidential Information. The City may
18 provide Consultant and/or its subcontractor with, or allow Consultant
19 access to, certain relevant information not available to the public
20 concerning, but not limited to the City, or businesses located in the
21 City. The information may include, but is not limited to, company
22 information, taxes, sales, value of assets, utility usage, or other
23 such information. All such information shall be known as
24 "Confidential Information" and shall not be used to circumvent the
25 responsibility of either party to this Agreement.
26 2. No Disclosure. Except as expressly permitted,
27 Consultant and/or its subcontractor shall not disclose, permit the
28disclosure of, release, disseminate, or transfer, whether orally or
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1 by any other means, any part of such Confidential Information to any
2 other person or entity, whether corporate, governmental, or
3 individual, without the express prior written consent of an
4 authorized representative of the City. Consultant and/or its
5 subcontractor shall return any and all written Confidential
6 Information and all copies made of such items to the City upon the
7 City's written request, but in any event not later than the date that
8 Consultant and/or its subcontractor has performed all services to be
9 performed pursuant to this Agreement. However, Consultant may retain
10 one copy of the Confidential Information for its legal records.
11 Consultant hereby agrees that such Confidential Information
12 and any documents provided may be used by Consultant and/or its
13 subcontractor only as authorized by the City. Consultant's contracts
14 with subcontractors shall include provisions that bind the
15 subcontractors to this non -disclosure requirement. Consultant shall
16 take reasonable measures to avoid any disclosure of any such
17 Confidential Information to any unauthorized person.
18 3. Court Ordered Disclosure. Consultant shall immediately
19 notify the City of any court order or subpoena or other directive of a
20 court, administrative agency, quasi-judicial body or arbitration panel
21 requiring disclosure of Confidential Information, and shall cooperate
22 with legal counsel in the appeal or challenge of any such order or
23 subpoena and City shall reimburse Consultant for such assistance on a
24 time and materials basis. Consultant may only disclose Confidential
25 Information required to be disclosed pursuant to a valid court order
26 or subpoena after legal counsel has exhausted any lawful and timely
27 appeal or challenge, to the extent that such appeal or challenge does
28 not hinder Consultant from its obligations under such court order or
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I subpoena.
2 4. Remedies. In addition to any other remedies that it
3 may have at law or in equity, City shall be entitled to a temporary
4 and permanent injunction by a court of competent jurisdiction against
5 any breach or threatened breach of the Confidential Information
6 provisions of this Agreement. Consultant acknowledges that in case of
7 such breach or threatened breach of said provisions, the City would
8 have no adequate remedy at law.
9 X. INDEMNITY AND INSURANCE.
10 1. Indemnification of City. The Consultant shall
11 indemnify, defend, protect and hold harmless the City and its
12 officers, agents and employees, from any and all claims, demands,
13 losses, damages, liabilities, fines, charges, penalties, orders, or
14 judgments which result in any injury or death, and all costs and
15 expenses incurred in connection therewith, including reasonable
16 attorney's fees and costs of defense arising out of or attributable to
17 the negligent or wrongful acts of Consultant or its subcontractors,
18 employees or agents in the performance of services under this
19 Agreement.
20 2. Patent or Copyright Infringement. Consultant shall
21 indemnify, defend, protect and hold City and its officers, agents and
22 employees, free and harmless from and against any and all claims,
23 demands, losses, damages, liabilities, fines, charges, penalties,
24 orders, judgments, and all costs and expenses incurred in connection
25 therewith, including reasonable attorney's fees and costs of defense,
26 based upon a claim that any software program or other product used or
27 furnished by Consultant in the performance of this Agreement
28constitutes an infringement of any United States patent or copyright.
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1 3. Insurance. The Consultant shall maintain in full force
2 and effect during the term of this agreement policies of automobile
3 liability and other insurance coverage as set forth in the Schedule of
4 Insurance which is attached hereto and incorporated by reference as
5 Exhibit B and shall provide proof thereof as required therein. Said
6 proof of insurance shall also provide that said policy or policies
7 shall not be canceled or materially reduced in coverage without giving
8 at least thirty (30) days prior written notice to the City. If
9 Consultant fails to provide proof of insurance coverage as specified j
10 above, the City may, at its sole discretion, terminate this Agreement
11 immediately.
12 The Consultant shall be excused from obtaining automobile
13 liability insurance as specified in Exhibit B for "Hired" (i.e.,
14 rented) Automobiles provided the Consultant obtains, as part of the
15 rental agreement, liability insurance as offered through the
16 automobile rental agency that conforms to said Exhibit B. The
17 Consultant shall not operate any automobile in the performance of this
18 Agreement that he does not own or that is not an insured hired
19 automobile. Consultant shall submit to the City documentation
20 indicating compliance with these minimum requirements no later than
21 thirty (30) days after the execution of this Agreement. If the
22 Consultant fails to provide insurance as requested above, this
23 Agreement shall terminate, unless the parties mutually agree to extend
24 the time in which to comply by amendment.
25 City, at its option, may require professional liability
26 insurance. Consultant may begin providing services under the
27 Agreement, provided such services do not contain risk tolerance
28 recommendations, until the City has made a determination as provided
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1 above regarding the procurement of professional liability insurance.
2 Consultant shall not permit any subcontractor or vendor to
3 perform work on City premises unless and until a certificate of
4 insurance is obtained showing that such subcontractor or vendor has
5 worker's compensation coverage. If Consultant employs subcontractors
6 as part of the services rendered, Consultant's protective coverage is
7 required. Consultant may include any subcontractors as an additional
8 insured under its own policy or shall furnish separate insurance for
9 any subcontractor that meets the requirements set forth herein.
10 4. Workers' Compensation Coverage. The Consultant shall
11 maintain Workers' Compensation Insurance and Employer's Liability
12 Insurance for his/her employees in accordance with the laws of the
13 State of California. In addition, the Consultant shall require each
14 subcontractor to similarly maintain Workers' Compensation Insurance
15 and Employer's Liability Insurance in accordance with the laws of the
16 State of California for all of the subcontractor's employees. Any
17 notice of cancellation or non -renewal of all Workers' Compensation
18 policies must be received by the City at least thirty (30) days prior
19 to such change. The insurer shall agree to waive all rights of
20 subrogation against City, its officers, agents, employees and
21 volunteers for losses arising from work performed by the Consultant
22 for City. This provision shall not apply if the Consultant has no
23 employees performing work under this Agreement. If the Consultant
24 has no employees for the purposes of this Agreement, the Consultant
25 shall sign the "Certificate of Exemption from Workers' Compensation
26 Insurance" which is attached hereto and incorporated by reference as
27 Exhibit C.
28
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1 XI. GENERAL PROVISIONS.
2 1. Independent Contractor. At all times during the term
3 of this Agreement, Consultant shall be an independent contractor and
4 shall not be an employee of City. City shall have the right to
5 control Consultant only insofar as the results of Consultant's
6 services rendered pursuant to this Agreement; however, City shall not
7 have the right to control the means by which Consultant accomplishes
8 services rendered pursuant to this Agreement except to the extent that
9 such services involve the use of City property or Confidential
10 Information.
11 Consultant shall not be eligible for, nor claim any
12 benefits under, the Public Employee's Retirement System, State
13 Unemployment Insurance, Disability Insurance, Workers' Compensation
14 Insurance, or other benefits through the City as such benefits are
15 commonly conferred upon employees of the City.
16 2. Consultant Not Agent. Except as City may specify in
17 writing, Consultant shall have no authority, express or implied, to
18 act on behalf of City in any capacity whatsoever as an agent.
19 Consultant shall have no authority, expressed or implied, pursuant to
20 this Agreement to bind City to any obligation whatsoever.
21 3. Assignment and Subcontracting Prohibited. No party
22 to this Agreement may assign or subcontract any right or obligation
23 pursuant to this Agreement except with the express written consent of
24 City. Any other attempted or purported assignment of any right or
25 obligation pursuant to this Agreement shall be void and of no effect.
26 4. Termination. This Agreement may be terminated by
27 City without cause on fifteen (15) days written notice to Consultant.
28 In the event of such termination, Consultant shall be entitled to only
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1 the compensation earned by it prior to the date of the termination
2 notice, computed pro rata up to and including that date, plus
3 compensation for work performed during the fifteen (15) day notice
4 period and authorized in the termination notice.
5 5. Notices.
6 Notices to the parties, unless otherwise requested in
7 writing, shall be sent to:
8 CITY: THE CITY OF VERNON
ATTN: CITY ADMINISTRATOR
9 4305 SANTA FE AVENUE
VERNON, CA 90058-0805
10
11 Copy to:_
DIRECTOR OF LIGHT & POWER
12 4305 SANTA FE AVENUE
VERNON, CA 90058
13
14 CONSULTANT: WTL TRADING
ATTN: THOMAS J. LANGAN
15 4352 VIA MAJORCA
16 CYPRESS, CALIFORNIA 90630
17 6. Entire Agreement.
18 This Agreement constitutes the complete and final expression
19 of the agreement of the parties and is intended as a complete and
20 exclusive statement of the terms of their agreements and supersedes
21 all prior and contemporaneous offers, promises, representations,
22 negotiations, discussions, communications and agreements which may
23 have been made in connection with the subject matter hereof. All
24 exhibits are incorporated by reference. Consultant represents that in
25 entering into this Agreement, it has not relied on any previous
26 representations or understandings of any kind or nature.
27 7. Amendments. All changes or modifications to this
28 Agreement shall be in writing stating that it is an amendment to this
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1 Agreement and shall be signed by both parties or their duly authorized
2 agents. This Agreement shall not be modified through course of
3 dealing, usage or trade.
4 8. Benefit Of Agreement.
5 This Agreement shall bind and benefit the parties hereto and
6 their heirs, successors, and permitted assigns.
7 9. Governing Law.
8 The validity, interpretation and performance of this
9 Agreement shall be controlled and construed under the laws of the
10 State of California as enacted and in force at the time this Agreement
11 is executed.
12 10. Forum Selection.
13 Any action brought relating to this Agreement shall be
14 brought and held exclusively in a State Court in the County of Los
15 Angeles, California.
16 11. Recitals.
17 All recitals are incorporated by reference.
18 12. Waiver.
19 Any waiver at any time by either party of its rights with
20 respect to a default under this Agreement, or with respect to any
21 other matters arising in connection with this Agreement, shall not be
22 deemed a waiver with respect to subsequent default or other matter.
23 13. Attorney's Fees.
24 In the event that it becomes necessary for either party to
25 this Agreement to enforce any of the provisions of this Agreement,
26 the parties agree that a court of competent jurisdiction may
27 determine and fix reasonable attorney's fees to be paid to the
28successful litigant.
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1 14. Force Majeure.
2 Neither Party shall be considered in to be in default in
3 any of its obligations under this Contract when a failure of
4 performance shall be due to an uncontrollable force. The term
5 "uncontrollable force" shall mean any cause beyond the control of the
6 party affected, including, but not restricted to, flood, earthquake,
7 storm, fire, lightening, epidemic, war, riot, civil disturbance or
8 disobedience, labor dispute, labor material shortage, sabotage,
9 federal, state, or municipal action, statute, ordinance, or
10 regulation, embargoes of the United States Government or any other
11 government, which by exercise of due diligence such party could not
12 reasonably have been expected to avoid and by exercise of due
13 diligence has been unable to overcome. Either party rendered unable
14 to fulfill any of its obligations under this Agreement by reason of
15 an uncontrollable force, shall give written notice within five (5)
16 Business Days of such fact to the other party and shall exercise due
17 diligence to remove such inability with all reasonable dispatch.
18 15. Arbitration.
19 The parties agree that any and all disputes arising out of
20 or in relation to this Agreement, including without limitation any
21 action in tort, shall be resolved exclusively, finally and
22 conclusively by arbitration in Los Angeles County, California under
23 the auspices of and pursuant to the rules of the Judicial Arbitration
24 & Mediation Services Inc. (JAMS). Each party will select an
25 arbitrator. Those two arbitrators will then select a third. The
26 three -member panel will make the final decision. All decisions of
27 the arbitrators shall be in writing, and the arbitrators shall
28 provide written reasons for their decision. The arbitration decision
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shall be final and binding on the parties. Notwithstanding the
foregoing, the parties shall be permitted to access the court system
to enforce any arbitration award or to obtain injunctive relief. The
exclusive jurisdiction and venue for any such action shall be the
Superior Court of California, Los Angeles County. Any and all
contracts between Consultant and any subcontractor relating to this
Agreement shall include the same arbitration clause.
IN WITNESS WHEREOF, City and Consultant have executed this
Agreement by and through their authorized officers as of the date
first hereinabove set forth.
ATTEST:
Bv:
MANUELA GIRON, City Clerk
APPROVED AS TO FORM:
JEFF A. HARR1sUN, city tittorney
CITY OF VERNON
Name:
Title: Mayor / " ^r R-=e_m.,�}
THOMAS J. LANGAN dba WTL
TRADING
By:
Thomas J. Langan
Title: Sole Proprietor
Exhibit A: Proposal
Exhibit B: Insurance Schedule
Exhibit C: Certificate Of Exemption From Workers' Compensation
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WTL Trading
4352 Via Majorca Risk Management &
Cypress, CA 90630 Trading Services
Phone: (714) 243-4007
W TLInc01y,sbcP_lobal .net
IV. TIME OF PERFORMANCE.
Consultant's services pursuant to this Agreement shall continue until June 30, 2009,
unless otherwise terminated or extended.
V. COMPENSATION
1. Consulting Costs. City will pay Consultant for the services performed at the rate of
sixteen thousand five hundred dollars and no cents ($16,500.00) per month. The
Consultant will not be compensated for automobile travel time in Los Angeles County
and/or Orange County.
2. Reimbursable Expenses. Consultant will be reimbursed for automobile mileage at the
rate of forty cents ($0.40) per mile. Consultant will also be reimbursed for market data
access fees (approximately $100 per month) and for pre -authorized extraordinary
expenses.
EXHIBIT B
1I
2INSURANCE SCHEDULE (CONSULTANT)
3
Consultant shall provide proof of insurance, including a standard certificate of insurance, in at least the
4 following amounts and coverage (combined single limit permitted):
5
6 I. Coverage and Limits
Bodilylnjury Property Damage
7 Hazards Each Person Each Accident Each Accident
8 Automobile Liability
9 Owned Automobiles $ 500,000 $1,000,000 $ 500,000
Hired Automobiles $ 500,000 $1,000,000 $ 500,000
10 Non -Owned Automobiles $ 500,000 $1,000,000 $ 500,000
Workers' Compensation $ Statutory
11 Employers' Liability $1,000,000 per employer
12 11. Liabili
13
General Liability $1,000,000 $1,000,000 $1,000,000
14 Premises Operations $1,000,000 $2,000,000 $1,000,000
Elevators (if applicable) $1,000,000 $2,000,000 $1,000,000
15 Independent Contractors $1,000,000 $2,000,000 $1,000,000
16 Products - Completed Operations $1,000,000 $2,000,000 $1,000,000
Contractual Liability $1,000,000 $2,000,000. $1,000,000
17 Professional Liability (At City's Option)
18 a. The general liability policy shall contain the following special endorsements which shall
19 be noted on or attached to the standard certificate of insurance:
20 1. An original endorsement naming the City of Vernon, its officers, and employees
as additional insureds under the policy.
21 2. An endorsement providing the City of Vernon thirty (30) days notice of
cancellation or material reduction of coverage.
22 3. An endorsement providing coverage for all operations under this Agreement and
specifying the activities covered.
23 4. Such other endorsement as may be required by City.
5. A copy of your general and professional insurance policy declarations page.
24 6. A copy of schedule of forms of endorsement.
25 b. In addition to the above, the Consultant shall provide such further proof of insurance
26 documentation as the City deems necessary.
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EXHIBIT B
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EXHIBIT C
CERTIFICATE OF EXEMPTION FROM WORKERS' COMPENSATION INSURANCE
I hereby certify that in the performance of the work for which
this Agreement is entered into, I shall not employ any person in any
manner so as to become subject to the Workers' Compensation Laws of
the State of California.
Executed this day of July, 2007, at
California.
THOMAS J. LANGAN, an
Individual doing business as
WTL Trading
1k I ':
SUPPORTING
DOCUMENTS
July 11, 2007
Mr. Thomas J. Langan
WTL Trading
4352 Via Majorca
Cypress, CA 90630
Re: Consulting Services Agreement
Dear Mr. Langan:
The insurance requirements have been met. Transmitted herewith is a
fully executed agreement as referenced above, approved by City Council
on July 2, 2007, through Resolution No. 9358.
If you have any questions regarding this matter, please call Mr. Donal
O'Callaghan at 323/583-8811 ext. 834.
NG:dr
C: Donal O'Callaghan
Dolores Jaunzemis
Resolution No. 9358
Agreement File No. 07-067
Very truly yours,
lly Gi nA161n
City Clerk
E-gfusivefy Industriaf
2
1 AGREEMENT FOR PROFESSIONAL CONSULTING SERVICES
2
3 THIS AGREEMENT is made, entered into and executed in
4 duplicate originals, either copy of which may be considered and used
5 as the original hereof for all purposes, as of this 2nd day of July,
6 2007, in the City of Vernon, County of Los Angeles, California
7 BY AND BETWEEN THE CITY OF VERNON,
(hereinafter referred to as
8 "City")
4305 Santa Fe Avenue
9 Vernon, California 90058
10 AND THOMAS J. LANGAN, an
Individual dba
11 WTL TRADING (hereinafter
referred to as "Consultant")
12 4352 Via Majorca
Cypress, California 90630
13
14 RECITALS
15 WHEREAS, the City has determined that it continues to need
16 the services of a consultant to provide assistance with market risk
17 analysis for both gas and power on an as -needed basis; and
18 WHEREAS, City has utilized the services of Consultant in the
19 past in connection with risk management matters for the Light and
20 Power Department and assistance in the implementation of City's
21 Resource Procurement Plan & Credit Risk Management Policy adopted by
22 Resolution No. 7276 on February 16, 1999; and
23 WHEREAS, Consultant represents that he is qualified to
24 Perform such services under this Agreement for Professional Consulting
25 Services (hereinafter "Agreement"); and
26 WHEREAS, Consultant submitted a proposal to City dated on or
27 about June 11, 2007, (the "Proposal"), a copy of which is attached
28 hereto and incorporated by reference as Exhibit A; and
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1 WHEREAS, Consultant is willing to render such professional
2 services as hereinafter defined.
3 NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS SET
4 FORTH HEREIN:
5 I. SCOPE OF SERVICES.
6 Consultant shall perform market risk analysis for both gas
7 and power on an as -needed basis under the general supervision of the
8 City Administrator and/or the Director of Light & Power, or their
9 designees. Consultant's scope of services shall be assigned by the
10 City Administrator and/or the Director of Light & Power, or their
11 designees, and may include, but not be limited to, the following:
12 1. Develop a Gas Portfolio Management Strategy
13 document; assist with implementation of the document, including
14 execution and tracking of financial hedges;
15 2. Develop or update other documents and policies
16 (Strategic Direction, Risk Management Policy), ensuring consistency of
17 objectives and risk tolerance across the energy portfolio;
18 3. Execute other financial transactions to help
19 increase revenues across all energy resources;
20 4. Evaluate energy procurement activities for economy
21 and consistency with strategies; develop more advantageous
22 alternatives as appropriate;
23 5. Position tracking and mark -to -market reporting;
24 6. Financial settlements;
25 7. Management reporting;
26 8. Daily energy market analysis;
27 9. Portfolio risk analysis (VAR and stress case);
28 10. Credit tracking of trading counter -parties;
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1 11. Trading training in the use of financial tools for
2 hedging and marketing; and
3 12. Provide any additional services as requested and
4 authorized in writing by the City Administrator and/or the Director of
5 Light & Power, or their designees.
6 All services provided under this Agreement shall be provided
7 by the principal and competent staff members, if any, under the
8 supervision of the principal. All such services will be performed and
9 rendered diligently.
10 II. RELATIONSHIP OF PARTIES.
11 Consultant shall conform with any instruction given by City
12 to Consultant from time to time and may not make any representation,
13 promise, contract, agreement or do any other act binding City. City
14 is not responsible for any act or failure to act by Consultant in
15 excess of or contrary to City's instruction. Except as the City may
16 specify in writing, the Consultant shall have no authority, express or
17 implied, to act on behalf of the City in any capacity whatsoever as an
18 agent. The Consultant shall have no authority, express or implied,
19 pursuant to this Agreement to bind the City to any obligation
20 whatsoever.
21 III. PROGRESS REPORTS.
22 Consultant shall meet with City staff, upon City's request,
23 or as needed, in order to provide written reports or information
24 concerning the services being performed under this Agreement.
25 IV. TIME OF PERFORMANCE.
26 Consultant's services pursuant to this Agreement shall
27 commence upon the full execution of the agreement and continue until
28 June 30, 2009, unless otherwise terminated or extended.
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1 V. COMPENSATION.
2 1. Consulting Costs. City will pay Consultant for the
3 services performed at the rate of Sixteen Thousand Five Hundred
4 Dollars and No Cents ($16,500.00) per month. The Consultant will not
5 be compensated for automobile travel time in Los Angeles County and/or
6 Orange County.
7 2. Reimbursable Expenses. Consultant will be reimbursed
8 for automobile mileage at the rate of Forty Cents ($0.40) per mile.
9 Consultant will also be reimbursed for market data access fees
10 (approximately One Hundred Dollars and No Cents ($100.00) per month)
11 and for pre -authorized extraordinary expenses.
12 VI. METHOD OF PAYMENT.
13 Within thirty (30) days after the last day of any month in
14 which services have been performed or costs incurred hereunder,
15 Consultant shall submit an invoice to City stating the amount due
16 Consultant. Invoices shall contain an itemization of the services
17 rendered (i.e., the services performed, the date and time the services
18 were performed, and the number of hours spent). Payment of the
19 invoice shall be made after acceptance and approval by City within
20 thirty (30) days of receipt. Consultant shall be responsible for
21 paying any subcontractor used in the performance of this Agreement.
22 Subcontractors shall not bill the City directly. The City's approval
23 of the invoice shall not be unreasonably withheld.
24 VII. PRODUCTS OF CONSULTING.
25 All products of consulting services, including but not
26 limited to, manuals, documents and/or computer software, shall become
27 the property of the City and shall be delivered to the City before the
28 end of the performance of this Agreement. Basic notes and sketches,
1 charts, computations and other data shall be made available to City
2 without restriction or limitation on their use.
3 VIII. CONFLICTS OF INTEREST.
4 In the event that a potential conflict should arise between
5 the interests of the City and the interests of any one of Consultant's
6 other clients, during Consultant's performance of services under this
7 Agreement, Consultant shall notify City of such potential conflict.
8 Notice of the existence of a potential conflict of interest shall be
9 given in writing to City within ten (10) days of the perceived
10 conflict. The conflict of interest letter shall specify when the
11 potential conflict arose, the identity of the other party(ies) and the
12 facts that give rise to the potential conflict. In the event that a
13 potential conflict of interest is deemed by City to be an actual
14 conflict of interest, City may, at its discretion, terminate this
15 Agreement immediately.
16 IX. CONFIDENTIAL INFORMATION.
17 1. Access to Confidential Information. The City may
18 provide Consultant and/or its subcontractor with, or allow Consultant
19 access to, certain relevant information not available to the public
20 concerning, but not limited to the City, or businesses located in the
21 City. The information may include, but is not limited to, company
22 information, taxes, sales, value of assets, utility usage, or other
23 such information. All such information shall be known as
24 "Confidential Information" and shall not be used to circumvent the
25 responsibility of either party to this Agreement.
26 2. No Disclosure. Except as expressly permitted,
27 Consultant and/or its subcontractor shall not disclose, permit the
28 disclosure of, release, disseminate, or transfer, whether orally or
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1 by any other means, any part of such Confidential Information to any
2 other person or entity, whether corporate, governmental, or
3 individual, without the express prior written consent of an
4 authorized representative of the City. Consultant and/or its
5 subcontractor shall return any and all written Confidential
6 Information and all copies made of such items to the City upon the
7 City's written request, but in any event not later than the date that
8 Consultant and/or its subcontractor has performed all services to be
9 performed pursuant to this Agreement. However, Consultant may retain
10 one copy of the Confidential Information for its legal records.
11 Consultant hereby agrees that such Confidential Information
12 and any documents provided may be used by Consultant and/or its
13 subcontractor only as authorized by the City. Consultant's contracts
14 with subcontractors shall include provisions that bind the
15 subcontractors to this non -disclosure requirement. Consultant shall
16 take reasonable measures to avoid any disclosure of any such
17 Confidential Information to any unauthorized person.
18 3. Court Ordered Disclosure. Consultant shall immediately
19 notify the City of any court order or subpoena or other directive of a
20 court, administrative agency, quasi-judicial body or arbitration panel
21 requiring disclosure of Confidential Information, and shall cooperate
22 with legal counsel in the appeal or challenge of any such order or
23 subpoena and City shall reimburse Consultant for such assistance on a
24 time and materials basis. Consultant may only disclose Confidential
25 Information required to be disclosed pursuant to a valid court order
26 or subpoena after legal counsel has exhausted any lawful and timely
27 appeal or challenge, to the extent that such appeal or challenge does
28 not hinder Consultant from its obligations under such court order or
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subpoena.
4. Remedies. In addition to any other remedies that it
may have at law or in equity, City shall be entitled to a temporary
and permanent injunction by a court of competent jurisdiction against
any breach or threatened breach of the Confidential Information
provisions of this Agreement. Consultant acknowledges that in case of
such breach or threatened breach of said provisions, the City would
have no adequate remedy at law.
X. INDEMNITY AND INSURANCE.
1. Indemnification of City. The Consultant shall
indemnify, defend, protect and hold harmless the City and its
officers, agents and employees, from any and all claims, demands,
losses, damages, liabilities, fines, charges, penalties, orders, or
judgments which result in any injury or death, and all costs and
expenses incurred in connection therewith, including reasonable
attorney's fees and costs of defense arising out of or attributable to
the negligent or wrongful acts of Consultant or its subcontractors,
employees or agents in the performance of services under this
Agreement.
2. Patent or Copyright Infringement. Consultant shall
indemnify, defend, protect and hold City and its officers, agents and
employees, free and harmless from and against any and all claims,
demands, losses, damages, liabilities, fines, charges, penalties,
orders, judgments, and all costs and expenses incurred in connection
therewith, including reasonable attorney's fees and costs of defense,
based upon a claim that any software program or other product used or
furnished by Consultant in the performance of this Agreement
constitutes an infringement of any United States patent or copyright.
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1 3. Insurance. The Consultant shall maintain in full force
2 and effect during the term of this agreement policies of automobile
3 liability and other insurance coverage as set forth in the Schedule of
4 Insurance which is attached hereto and incorporated by reference as
5 Exhibit B and shall provide proof thereof as required therein. Said
6 proof of insurance shall also provide that said policy or policies
7 shall not be canceled or materially reduced in coverage without giving
8 at least thirty (30) days prior written notice to the City. If
9 Consultant fails to provide proof of insurance coverage as specified
10 above, the City may, at its sole discretion, terminate this Agreement
11 immediately.
12 The Consultant shall be excused from obtaining automobile
13 liability insurance as specified in Exhibit B for "Hired" (i.e.,
14 rented) Automobiles provided the Consultant obtains, as part of the
15 rental agreement,; liability insurance as offered through the
16 automobile rental agency that conforms to said Exhibit B. The
17 Consultant shall not operate any automobile in the performance of this
18 Agreement that he does not own or that is not an insured hired
19 automobile. Consultant shall submit to the City documentation
20 indicating compliance with these minimum requirements no later than
21 thirty (30) days after the execution of this Agreement. If the
22 Consultant fails to provide insurance as requested above, this
23 Agreement shall terminate, unless the parties mutually agree to extend
24 the time in which to comply by amendment.
25 City, at its option, may require professional liability
26 insurance. Consultant may begin providing services under the
27 Agreement, provided such services do not contain risk tolerance
28 recommendations, until the City has made a determination as provided
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I above regarding the procurement of professional liability insurance.
2 Consultant shall not permit any subcontractor or vendor to
3 perform work on City premises unless and until a certificate of
4 insurance is obtained showing that such subcontractor or vendor has
5 worker's compensation coverage. If Consultant employs subcontractors
6 as part of the services rendered, Consultant's protective coverage is
7 required. Consultant may include any subcontractors as an additional
8 insured under its own policy or shall furnish separate insurance for
9 any subcontractor that meets the requirements set forth herein.
10 4. Workers' Compensation Coverage. The Consultant shall
11 maintain Workers' Compensation Insurance and Employer's Liability
12 Insurance for his/her employees in accordance with the laws of the
13 State of California. In addition, the Consultant shall require each
14 subcontractor to similarly maintain Workers' Compensation Insurance
15 and Employer's Liability Insurance in accordance with the laws of the
16 State of California for all of the subcontractor's employees. Any
17 notice of cancellation or non -renewal of all Workers' Compensation
18 policies must be received by the City at least thirty (30) days prior
19 to such change. The insurer shall agree to waive all rights of
20 subrogation against City, its officers, agents, employees and
21 volunteers for losses arising from work performed by the Consultant
22 for City. This provision shall not apply if the Consultant has no
23 employees performing work under this Agreement. If the Consultant
24 has no employees for the purposes of this Agreement, the Consultant
25 shall sign the "Certificate of Exemption from Workers' Compensation
26 Insurance" which is attached hereto and incorporated by reference as
27 Exhibit C.
28
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1 XI. GENERAL PROVISIONS.
2 1. Independent Contractor. At all times during the term
3 of this Agreement, Consultant shall be an independent contractor and
4 shall not be an employee of City. City shall have the right to
5 control Consultant only insofar as the results of Consultant's
6 services rendered pursuant to this Agreement; however, City shall not
7 have the right to control the means by which Consultant accomplishes
8 services rendered pursuant to this Agreement except to the extent that
9 such services involve the use of City property or Confidential
10 Information.
11 Consultant shall not be eligible for, nor claim any
12 benefits under, the Public Employee's Retirement System, State
13 Unemployment Insurance, Disability Insurance, Workers' Compensation
14 Insurance, or other benefits through the City as such benefits are
15 commonly conferred upon employees of the City.
16 2. Consultant Not Agent. Except as City may specify in
17 writing, Consultant shall have no authority, express or implied, to
18 act on behalf of City in any capacity whatsoever as an agent.
19 Consultant shall have no authority, expressed or implied, pursuant to
20 this Agreement to bind City to any obligation whatsoever.
21 3. Assignment and Subcontracting Prohibited. No party
22 to this Agreement may assign or subcontract any right or obligation
23 pursuant to this Agreement except with the express written consent of
24 City. Any other attempted or purported assignment of any right or
25 obligation pursuant to this Agreement shall be void and of no effect.
26 4. Termination. This Agreement may be terminated by
27 City without cause on fifteen (15) days written notice to Consultant.
28 In the event of such termination, Consultant shall be entitled to only
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1 the compensation earned by it prior to the date of the termination
2 notice, computed pro rata up to and including that date, plus
3 compensation for work performed during the fifteen (15) day notice
4 period and authorized in the termination notice.
5 5. Notices.
6 Notices to the parties, unless otherwise requested in
7 writing, shall be sent to:
8 CITY: THE CITY OF VERNON
ATTN: CITY ADMINISTRATOR
9 4305 SANTA FE AVENUE
VERNON, CA 90058-0805
10
11 Copy to:
DIRECTOR OF LIGHT & POWER
12 4305 SANTA FE AVENUE
VERNON, CA 90058
13
14 CONSULTANT: WTL TRADING
ATTN: THOMAS J. LANGAN
15 4352 VIA MAJORCA
16 CYPRESS, CALIFORNIA 90630
17 6. Entire Agreement.
18 This Agreement constitutes the complete and final expression
19 of the agreement of the parties and is intended as a complete and
20 exclusive statement of the terms of their agreements and supersedes
21 all prior and contemporaneous offers, promises, representations,
22 negotiations, discussions, communications and agreements which may
23 have been made in connection with the subject matter hereof. All
24 exhibits are incorporated by reference. Consultant represents that in
25 entering into this Agreement, it has not relied on any previous
26 representations or understandings of any kind or nature.
27 7. Amendments. All changes or modifications to this
28Agreement shall be in writing stating that it is an amendment to this
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1 Agreement and shall be signed by both parties or their duly authorized
2 agents. This Agreement shall not be modified through course of
3 dealing, usage or trade.
4 8. Benefit Of Agreement.
5 This Agreement shall bind and benefit the parties hereto and
6 their heirs, successors, and permitted assigns.
7 9. Governing Law.
8 The validity, interpretation and performance of this
9 Agreement shall be controlled and construed under the laws of the
10 State of California as enacted and in force at the time this Agreement
11 is executed.
12 10. Forum Selection.
13 Any action brought relating to this Agreement shall be
14 brought and held exclusively in a State Court in the County of Los
15 Angeles, California.
16 11. Recitals.
17 All recitals are incorporated by reference.
18 12. Waiver.
19 Any waiver at any time by either party of its rights with
20 respect to a default under this Agreement, or with respect to any
21 other matters arising in connection with this Agreement, shall not be
22 deemed a waiver with respect to subsequent default or other matter.
23 13. Attorney's Fees.
24 In the event that it becomes necessary for either party to
25 this Agreement to enforce any of the provisions of this Agreement,
26 the parties agree that a court of competent jurisdiction may
27 determine and fix reasonable attorney's fees to be paid to the
28successful litigant.
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1 14. Force Majeure.
2 Neither Party shall be considered in to be in default in
3 any of its obligations under this Contract when a failure of
4 performance shall be due to an uncontrollable force. The term
5 "uncontrollable force" shall mean any cause beyond the control of the
6 party affected, including, but not restricted to, flood, earthquake,
7 storm, fire, lightening, epidemic, war, riot, civil disturbance or
8 disobedience, labor dispute, labor material shortage, sabotage,
9 federal, state, or municipal action, statute, ordinance, or
10 regulation, embargoes of the United States Government or any other
11 government, which by exercise of due diligence such party could not
12 reasonably have been expected to avoid and by exercise of due
13 diligence has been unable to overcome. Either party rendered unable
14 to fulfill any of its obligations under this Agreement by reason of
15 an uncontrollable force, shall give written notice within five (5)
16 Business Days of such fact to the other party and shall exercise due
17 diligence to remove such inability with all reasonable dispatch.
18 15. Arbitration.
19 The parties agree that any and all disputes arising out of
20 or in relation to this Agreement, including without limitation any
21 action in tort, shall be resolved exclusively, finally and
22 conclusively by arbitration in Los Angeles County, California under
23 the auspices of and pursuant to the rules of the Judicial Arbitration
24 & Mediation Services Inc. (JAMS). Each party will select an
25 arbitrator. Those two arbitrators will then select a third. The
26 three -member panel will make the final decision. All decisions of
27 the arbitrators shall be in writing, and the arbitrators shall
28 provide written reasons for their decision. The arbitration decision
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shall be final and binding on the parties. Notwithstanding the
foregoing, the parties shall be permitted to access the court system
to enforce any arbitration award or to obtain injunctive relief. The
exclusive jurisdiction and venue for any such action shall be the
Superior Court of California, Los Angeles County. Any and all
contracts between Consultant and any subcontractor relating to this
Agreement shall include the same arbitration clause.
IN WITNESS WHEREOF, City and Consultant have executed this
Agreement by and through their authorized officers as of the date
first hereinabove set forth.
CITY OF VERNON
Leonis C. Malburg
Name:
Title: Mayor -
ATTE
By:
ANUELA GIR , �,ity Clerk
APPROVED AS FORM:
By: Q44 A ;
J A. ARRISON, City Attorney
THOMAS J. LANGAN dba WTL
TRADING
By:
Thomas J. n n
Title: Sole Proprietor
Exhibit A: Proposal
Exhibit B: Insurance Schedule
Exhibit C: Certificate Of Exemption From Workers' Compensation
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EXHIBIT A
WTL Trading
4352 Via Majorca
Cypress, CA 90630
Phone: (714) 243-4007
Risk Management &
Trading Services
IV. TIME OF PERFORMANCE.
Consultant's services pursuant to this Agreement shall continue until June 30, 2009,
unless otherwise terminated or extended.
V. COMPENSATION
1. Consulting Costs. City will pay Consultant for the services performed at the rate of
sixteen thousand five hundred dollars and no cents ($16,500.00) per month. The
Consultant will not be compensated for automobile travel time in Los Angeles County
and/or Orange County.
2. Reimbursable Expenses. Consultant will be reimbursed for automobile mileage at the
rate of forty cents ($0.40) per mile. Consultant will also be reimbursed for market data
access fees (approximately $100 per month) and for pre -authorized extraordinary
expenses.
a
EXHIBIT B
EXHIBIT B
1
2 INSURANCE SCHEDULE (CONSULTANT)
3
Consultant shall provide proof of insurance, including a standard certificate of insurance, in at least the
4 following amounts and coverage (combined single limit permitted):
5
6 I. Coverage and Limits Property Damage
Bodily Iniu
7 Hazards Each Person Each Accident Each Accident
8 Automobile Liability
Owned Automobiles $ 500,000 $1,000,000 $ 500,000
9 Hired Automobiles $ 500,000 $1,000,000 $ 500,000
10 Non -Owned Automobiles $ 500,000 $1 000 000 $ 500 000
Workers' Compensation $ Statutory
11 Employers' Liability $1,000,000 per employer
12 E Liabilit
13 General Liability $1,000,000 $1,000,000 $1,000,000
14 Premises Operations $1,000,000 $2,000,000 $1,000,000
Elevators (if applicable) $1,000,000 $2,000,000 $1,000,000
15 Independent Contractors $1,000,000 $2,000,000 $1,000,000
16 Products - Completed Operations $1,000,000 $2,000,000 $1,000,000
Contractual Liabilit $1 000 000 $2 000 000 $1,000,000
17 Professional Liability At Cit 's option)
18 a. The general liability policy shall contain the following special endorsements which shall
19 be noted on or attached to the standard certificate of insurance:
20 1 An original endorsement naming the City of Vernon, its officers, and employees
as additional insureds under the policy.
21 2. An endorsement providing the City of Vernon thirty (30) days notice of
cancellation or material reduction of coverage.
22 3. An endorsement providing coverage for all operations under this Agreement and
specifying the activities covered.
23 4. Such other endorsement as may be required by City.
5. A copy of schedule of forms of endorsement
your
dprofessional policy declarations page.
24 6. A copy of
25 b. In addition to the above, the Consultant shall provide such further proof of insurance
documentation as the City deems necessary.
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EXHIBIT B
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EXHIBIT C
CERTIFICATE OF EXEMPTION FROM WORKERS' COMPENSATION INSURANCE
I hereby certify that in the performance of the work for which
this Agreement is entered into, I shall not employ any person in any
manner so as to become subject to the Workers' Compensation Laws of
the State of California.
Executed this 101'4 day of July, 2007, at C e-
California.
THOMAS J. LAN, a�/ J
Individual oing bu ess as
WTL Trading
EXHIBIT C