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Resolution No. 9372
•:4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 9372 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON APPROVING AND AUTHORIZING THE EXECUTION OF A SERVICES AGREEMENT BY AND BETWEEN THE CITY OF VERNON AND ENHANCED TURBINE OUTPUT LLC FOR THE VERNON POWER PLANT PROJECT WHEREAS, the City of Vernon (the "City") owns and operates its own electric system which services the City's constituents; and WHEREAS, the City is in the process of developing a natural gas -fired combined cycle power plant located within City limits Officially named the Vernon Power Plant (the "VPP Project") for the purpose of installing additional generating capacity that will yield an efficient, cost-effective, and reliable source of electric generation; and WHEREAS, the Light & Power Department desires to retain the services of an independent contractor to conduct power and heat rate design and thermodynamic modeling studies in parallel to studies conducted by Combustion Science &Engineering, Inc. for the purpose of increasing power and hopefully lowering heat rate of combustion turbine at the proposed VPP Project; and WHEREAS, the Director of Light & Power has determined that Enhanced Turbine Output LLC ("ETO") is qualified and capable of furnishing the labor, materials and expertise necessary to perform the services that the City requires; and WHEREAS, the City and ETO desire to enter into a Services Agreement setting forth the terms and conditions under which ETO shall perform the study; and WHEREAS, the City Council of the City of Vernon has 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 ETO. 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 Services Agreement with Enhanced Turbine Output LLC, 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 or Mayor Pro-Tem to execute said Agreement for, and on behalf of, the City of Vernon and the City Clerk is hereby lauthorized to attest thereto. SECTION 4: 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 5: The City Council of the City of Vernon hereby directs the City Clerk, or her designee, to give one fully executed Agreement to: Enhanced Turbine Output LLC Attn. John S. Hoffman, Managing Member 2948 Macomb Street NW Washington D.C. 20008 - 2 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 6th day of August, 2007. a Name: Leonis C. Malburg Title: Mayor / Mayes Rzi -^'^^^ - 3 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STATE OF CALIFORNIA ) ) ss COUNTY OF LOS ANGELES ) I, MANUELA GIRON, City Clerk of the City of Vernon, do hereby certify that the foregoing Resolution, being Resolution No. 9372, was duly adopted by the City Council of the City of Vernon at a regular meeting of the City Council duly held on Monday, August 6, 2007, and thereafter was duly signed by the Mayor or Mayor Pro-Tem of the City of Vernon. MANUELA GIRON, City Clerk (SEAL) - 4 - EXHIBIT 0 SERVICES AGREEMENT THIS AGREEMENT is made, entered into and executed in duplicate originals, either copy of which may be considered and used as the original hereof for all purposes, as of this 6th day of August, 2007, in the City of Vernon, County of Los Angeles, Cajifornia BY AND BETWEEN THE CITY OF VERNON, a municipal corporation, hereinafter referred to as the "City," 4305 Santa Fe Avenue Vernon, California 90058 AND ENHANCED TURBINE OUTPUT LLC, hereinafter referred as "Contractor," 2948 Macomb Street NW Washington, DC 20008 RECITALS WHEREAS, the City desires to retain the services of an independent contractor to conduct power and heat rate design and thermodynamic modeling studies in parallel to studies conducted by Combustion Science & Engineering, Inc. for the purpose of increasing power and hopefully lowering heat rate of combustion turbine at the proposed Vernon Power Plant Project (the "Services"); and WHEREAS, Contractor has prepared a scope and fee proposal dated June 26, 2007, for the Services, a copy of which is attached hereto as Exhibit A and incorporated by this reference (the "Proposal"); and WHEREAS, Contractor represents that it is qualified and capable of furnishing the labor, materials and expertise necessary to perform the Services that the City requires, as set forth in this Agreement, and is willing to do so on the terms and conditions set forth below; and WHEREAS, the Contractor's cost proposal is acceptable to the City; and WHEREAS, the City desires to enter into an agreement with Contractor to Page 1 of 20 perform the Services on a contractual basis as defined in the terms and conditions set forth below. NOW, THEREFORE, IT IS AGREED AS FOLLOWS: SECTION 1. TERM OF CONTRACT 1.01. This Agreement will become effective on August 7, 2007, and will continue in effect until such time as the Services are complete and the City has received all project closeout documents, or until terminated as provided in this Agreement. SECTION 2. DEFINITION OF TERMS 2.01. Whenever used in the Agreement, the following terms shall mean: A. "Agreement" shall mean that formally executed Agreement or Contract which includes the Contract Documents attached. The Agreement constitutes the entire agreement between the parties relating to its subject matter. B. "City" shall mean the City of Vernon, California, the entity which has executed the Agreement and, where applicable, its affiliated companies, and its officers, directors, employees, representatives and agents. C. "Contractor' shall mean Enhanced Turbine Output LLC (ETO) and where applicable, its affiliated companies, and its officers, directors, employees, representatives and agents. D. "Contract Documents" shall include any inquiry, invitation to bid, or proposal which may have, but not necessarily, preceded execution of the Agreement, and including the General Provisions and all exhibits and schedules attached to the Agreement and all plans and specifications identified in the Contract Documents. E. "Contract Price" shall mean the compensation set forth or provided for in Section 4.01 of this Agreement. Whether it expressly provides for the reimbursement of costs incurred by Contractor or simply for the payment of a lump sum of money, it is intended to be the full and complete payment for satisfactory completion of the Work and, unless otherwise stated, to cover all costs whether for materials, equipment, tools, labor, services and taxes and all overhead, rentals and profit or fee, if any. Page 2 of 20 F. "General Provisions" or "General Conditions" shall mean the General Provisions as set forth in this Agreement. G. "Premises" shall mean the physical premises under City's control or ownership where Work hereunder is to be performed. H. "Proprietary Information" and "Confidential Information" shall mean all information, whether written or oral, which Contractor acquires from, through or on behalf of City, directly or indirectly, or which arises out of the Work, concerning the Work or proprietary processes involved in the Work including, without limitation, information concerning past, present or future business plans of City, information about the operations of City's Premises, and other City information or know-how obtained during the Work, except information falling into any of the following categories: Information which, at the time of disclosure hereunder, is in the public domain; 2. Information which, after disclosure hereunder, enters the public domain, except where such entry is the result of Contractor's or any entity within Contractor's control breach of this Agreement; 3. Information which, prior to disclosure hereunder, was already in Contractor's possession without limitation regarding disclosure to others; or 4. Information which, subsequent to disclosure hereunder, is obtained by Contractor from a third party who is lawfully in possession of such information and not subject to a contractual or fiduciary relationship to City with respect to said information and who does not require Contractor to agree to refrain from disclosing such information to others. I. "Subcontractor' shall mean any first or lower -tier subcontractor and its employees, representatives, agents, subcontractors or other personnel who have been approved in the manner required by this Agreement. J. "Work" or "Services" shall mean the work performed by Contractor and required to be performed from time to time by City under this Agreement. Page 3 of 20 SECTION 3. SERVICES TO BE PERFORMED BY CONTRACTOR Specific Services 3.01. Contractor's Services shall include, but will not be limited to, conducting power and heat rate design and thermodynamic modeling studies, integrating the emissions studies by Combustion Science & Engineering, Inc. which will characterize the effect of the POWERCOOL system on turbine emissions and preparing a budget estimate for final proposed plan to upgrade a Siemens SCC6- 5000F Combustion Turbine at the proposed Vernon Power Plant Project. The Contractor's Services are more specifically detailed in the Proposal attached hereto as Exhibit "A." Change of Services 3.02. City may at any time, by written change order executed by the City, make changes only to extend the Work duration and total compensation of Contractor's Work. Only the City shall authorize changes in the scope of Work, or duties and obligations. 3.03. City may make "Changes" by increasing, reducing or deviating from the requirements of the scope of Work. A form of Change Order is set forth in Exhibit B attached hereto and incorporated by reference. Timing of Services 3.04. Contractor's Services shall commence upon the execution of this Agreement by both parties and award by the City Council and shall end at such time as the Services are completed and the City receives all project close-out documents, unless this Agreement is otherwise terminated according to Section 6 of this Agreement or extended according to the conditions and terms set forth in this Agreement. 3.05. Time is of the essence for all Work contemplated by this Agreement. Contractor shall start performing Services under this Agreement only after notification by the City. Method of Performing Services 3.06. Contractor will determine and is responsible for the method, details, and means of performing the above -described Services. Page 4 of 20 Status of Contractor 3.07. Contractor enters into this Agreement, and will remain throughout the term of this Agreement, as an independent contractor. Contractor agrees that it is not and will not become an employee, partner, agent, or principal of City while this Agreement is in effect. Contractor agrees it is not entitled to the rights or benefits afforded to City's employees, including disability or unemployment insurance, workers' compensation, medical insurance, sick leave, or any other employment benefit. Contractor is responsible for providing, at its own expense, disability, unemployment, and other insurance, worker's compensation, training, permits, and licenses for itself and for its employees and subcontractors. Contractor shall have complete and sole control over its employees, the details of the Services and methods by which the Services are accomplished, it being understood that City is interested only in the results to be obtained by Contractor. 3.08. Contractor has no authority to enter contracts or agreements on behalf of City. This Agreement does not create a partnership or joint venture between the parties. Payment of Taxes 3.09. Contractor is responsible for paying when due all income taxes, including estimated taxes, incurred as a result of the compensation paid by City to the Contractor for Services under this Agreement. Contractor agrees to indemnify City for any claims, costs, losses, fees, penalties, interest, or damages suffered by City resulting from Contractor's failure to comply with this provision. 3.10. Payroll taxes including federal, state and local taxes shall not be withheld or paid by City on behalf of Contractor or for the employees of the Contractor. Contractor shall not be treated as an employee with respect to the Services performed hereunder for federal or state tax purposes. Contractor shall be responsible to pay taxes mandated by law. 3.11. Since Contractor is not an employee of City, Contractor is not eligible for and shall not participate in any employee benefit of City, including pension, health or other fringe benefits. SECTION 4. COMPENSATION 4.01. In consideration for the Services to be performed by Contractor, described in Section 3 of this Agreement, City agrees to pay Contractor according to the Proposal set forth in Exhibit A the not to exceed amount of Fifty Thousand Dollars and No Cents ($50,000.00), on a time and material basis (the "Contract Page 5 of 20 Price"). Entire Compensation 4.02. The Contract Price is full and complete compensation, and constitutes the entire compensation due Contractor for the Services and any and all of Contractor's obligations hereunder. The Contract Price set forth above is not subject to escalation for any reason except as expressly set forth in this Agreement. No adjustments in compensation shall be made as a result of changes in the value of any currency. The Contract Price shall only be adjusted by formal, written Change Order or amendment to this Agreement. Payment of Compensation 4.03. For Services rendered under Section 3 of this Agreement, Contractor shall be entitled to receive monthly payments. Contractor shall submit to City a monthly invoice and statement of Services, prepared in accordance with City requirements, by the fifteenth (15th) of each month, for the prior calendar month's completed Work. City will make payments to Contractor within thirty (30) days after acceptance and approval of the invoice received from Contractor. 4.04. Contractor shall be responsible for paying any subcontractors used in the performance of this Agreement. Subcontractors shall not bill the City directly. Expenses 4.05. City shall not be liable to Contractor for any expenses paid or incurred by Contractor. Expenses may only be billed if advance written approval has been obtained from the City. Compensation for Changes 4.06. The compensation due Contractor, or the credit due City, for changes may not be established verbally, and shall be established in a written change order signed by City as described in Sections 3.02 and 3.03 of this Agreement. Compensation adjustments in each such change order shall be established by one or more of the following bases, as determined by City: (a) a lump sum price to be negotiated between the parties; or (b) Work unit rates to be negotiated between the parties. Once established, the amount of the compensation due Contractor or credit due City for a change shall not be subject to adjustment for any reason, including changes in the value of any currency. Page 6 of 20 SECTION 5. OBLIGATIONS OF THE PARTIES 5.01. Contractor is responsible for meeting all conditions of this Agreement and City Standards & Details for all Work performed. Substandard Work, as determined solely by the City, shall be redone at the expense of the Contractor. Products of Consulting 5.02. All products of consulting services including, but not limited to, manuals, documents and/or computer software, shall become the property of the City and shall be delivered to the City before the end of the performance of this Agreement. Basic notes and sketches, charts, computations and other data shall be made available to City without restriction or limitation on their use. Liability Insurance 5.03. Contractor and its subcontractor(s), if any, shall, prior to commencement of any Work and for the duration of this Agreement, obtain and maintain at its own expense, those minimum levels of insurance coverage as set forth below. Prior to commencing Work hereunder, Contractor shall provide the City with proof of insurance providing and maintaining the coverage and endorsements set forth below. Said proof of insurance shall also provide that said policy or policies shall not be canceled or materially reduced in coverage without giving at least thirty (30) days prior written notice to the City. 5.04. The insurance coverage as listed herein, shall be properly endorsed to include those contractual obligations which may be identified further within this Agreement and shall be endorsed to provide City all the rights and privileges of an additional insured. 5.05. Contractor shall cause its insurers to issue, including but not limited to, Certificates of Insurance or, upon request, certified copies of the insurance policies evidencing that the coverage and policy endorsements required under this Agreement, are maintained in force. 5.06. Contractor shall ensure its subcontractor(s), if any, maintain those insurance requirements as specified in this Agreement and are endorsed as additional insured(s) on all required Contractor insurance coverage. Contractor and its subcontractor(s), if any, shall maintain in effect the following minimum insurance coverage on an Occurrence Form Policy: 1. Workers Compensation within the statutory limits, including occupational illness or disease coverage in accordance with the laws of the nation, Page 7 of 20 state, territory, or province exercising jurisdiction over Contractor's employees. Workers Compensation and Employers Liability Insurance shall have a minimum limit of $1,000,000 per occurrence. Contractor further agrees to hold harmless and indemnify City for any and all claims arising out of an injury, disability, or death of any of Contractor's employees or agents. 2. Comprehensive General Liability Insurance, including, but not limited to, Contractual Liability, Products and Completed Operations Liability, Broad Form Property Damage and Bodily Injury Liability, and Explosion, Collapse and Underground Liability, with a minimum combined single limit of $2,000,000 per occurrence. 3. Comprehensive Automobile Insurance, including, but not limited to, all owned, non -owned or hired vehicles with a minimum combined single limit of $1,000,000 per occurrence for bodily injury and property damage. 4. Excess Liability Insurance with limits of $2,000,000. Such evidence of insurance can either be through the primary insurance coverage or through an excess policy. Such insurance shall at all times be on an occurrence form and provide policy conditions as broad as those required in the primary insurance. 5. Professional Liability Insurance with limits of $2,000,000. 5.07. Contractor agrees to provide insurance in the amounts and forms specified above. Contractor shall submit to the City documentation indicating compliance with these minimum requirements no less than one (1) day prior to the beginning of performance under this Agreement. Contractor shall not commence performance of its Work under this Agreement until the above insurance has been obtained and proof of insurance has been filed with and approved by the City. 5.08. Contractor shall not permit a subcontractor or vendor to perform work on City premises unless and until a certificate of insurance is obtained showing that such subcontractor or vendor has worker's compensation coverage. If Contractor employs subcontractors as part of the Services rendered, Contractor's protective coverage is required. Contractor may include all subcontractors as insureds under its own policy or shall furnish separate insurance for each subcontractor, meeting the requirements set forth above. Page 8 of 20 Representations 5.09. To the fullest extent permitted by law, Contractor shall defend, indemnify and hold harmless City and its elected officials, officers, agents and employees from all claims, suits, actions, demands, damages, liabilities, expenses, judgments, settlements, and penalties, losses, fines, and all costs and expenses incurred in connection therewith, including reasonable attorney's fees and all costs of defense, to the extent arising out of or attributable to the negligent or wrongful acts of Contractor or its employees or agents under this Agreement, except to the extent arising from or caused by the sole negligence or willful misconduct of the City, its officers, agents or employees. The terms of this indemnity shall survive the termination of this Agreement. The obligations in this Paragraph are in addition to Contractor's duty to provide insurance and shall not be limited by any limitation on the amount or type of insurance coverage carried by Contractor. 5.10. Contractor and City represent that each has read and understands the Agreement and Contract Documents. The Contractor represents it understands the City's regulations concerning Premises access, badges, parking, security, safety, fire, prohibited drugs and alcohol, and smoking and other rules, and that Contractor has visited Premises where the Work is to be done and is familiar with the local conditions under which it is to be done. Contractor also represents that it is experienced in performing and competent and qualified to perform the kind of tasks or assignments included in the Work and employs or has available for employment in sufficient numbers all unskilled, skilled, administrative, supervisory, professional and managerial or other personnel required to perform the Work as required by this Agreement. 5.11. Contractor represents that it has the qualifications and skills necessary to perform the Services under this Agreement in a competent, professional manner, without the advice or direction of City. This means Contractor is able to fulfill the requirements of this Agreement. Failure to perform all the Services required under this Agreement constitutes a material breach of the Agreement. Contractor has complete and sole discretion for the manner in which the Work under this Agreement will be performed. 5.12. Contractor declares and states that is has complied with and will continue to comply with all federal, state and local laws regarding business permits and licenses that may be required to carry out the Services to be performed under this Agreement. 5.13. Contractor agrees to indemnify, defend, and hold City free and harmless from all claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries and deficiencies, including interest, penalties, attorney's fees and Page 9 of 20 costs, that City may incur as a result of a breach by Contractor of any representation or provision contained in this Agreement or any negligent or intentional acts or omissions by Contractor, it subcontractors, agents, and employees or based on any claim that any software program or other product used or furnished by Contractor in the performance of this Agreement constitutes an infringement of any United States patent or copyright. 5.14. Contractor's rights under this Agreement may not be assigned nor may its duties be delegated or subcontracted without the prior written consent of City. Any assignment or delegation or subcontract in violation of this Section shall, at City's sole discretion, be void. Consent by City shall not relieve Contractor of responsibility for performance of Contractor's obligations hereunder. City may assign all or any part of this Agreement at any time effective immediately upon written notification to Contractor. 5.15 At all times while Work is, being performed on the Premises each party shall be represented thereon by a designated representative. Each party may notify the other in writing of the identity of such persons from time to time. Work Injury 5.16. The treatment and care of injuries sustained by Contractor's employees, subcontractors, representatives or other personnel shall be and remain the responsibility of Contractor. City's first aid facilities, if any, however, will be made available to Contractor's employees in emergency cases that are the direct result of accidents occurring on the Premises. City shall incur no liability for, and Contractor hereby agrees to indemnify City against, any causes of action, claim, liability or costs, including attorney's fees, arising in whole or part out of the furnishing of such first aid facilities or assistance to Contractor's employees, subcontractors, representatives or other personnel, or out of the failure to furnish such facilities or assistance. Records, Inspection and Audit 5.17. During the course of Work being performed, Contractor and any of its subcontractors, shall maintain and retain, not less than three (3) years after completion thereof, complete and accurate records of the Contractor's costs which are chargeable to the City under this Agreement. City or its designated, authorized representatives shall have the right during this three (3) year period, upon written reasonable notice, to inspect and audit those records. Such records to be maintained and retained by the Contractor shall include: (a) payroll record accounting for the total time distribution of the Contractor's employees working full or part time on the Work (to permit tracing to payroll payments in cash); (b) Page 10 of 20 invoices for purchases, receiving and issuing documents, and all the other unit - inventory records for the Contractor's stores, stock or capital items; (c) paid invoices and canceled checks for material purchased and for the subcontractor's and any other third parties' charges; and (d) any other documentation City deems necessary to support costs and charges under this Agreement. Corporate Conduct 5.18. Contractor, its employees, agents or representatives shall not offer or give to an officer, official or employee of City gifts, entertainment, payments, loans or other gratuities to influence the award of a contract or obtain favorable treatment under this Agreement or any other contract. Standard of Care 5.19 Contractor agrees that all Services provided will be conducted by the principal and competent staff members, if any, under the supervision of the principal, and that Services will be performed and rendered diligently. Contractor represents that it has, or shall secure, at its own expense, all personnel required to perform Contractor's Services under this Agreement, but at all times shall be responsible for the Services of such personnel. Contractor may not employ any subcontractor without the prior written approval of the City. Indemnity Process 5.20. The City shall notify Contractor in writing of any suits, claims or demands covered by any indemnity contained in this Agreement. Promptly after receipt of such notice, Contractor shall assume the defense of such claim with counsel reasonably satisfactory to City. If Contractor fails, within a reasonable time after receipt of such notice, to assume the defense with counsel reasonably satisfactory to City, or if, in the reasonable judgment of City, a direct or indirect conflict of interest exists between the parties with respect to the claim, or if in the sole judgment of City the assumption and conduct of the defense by Contractor would materially and adversely affect City in any manner or prejudice its ability to conduct a successful defense, then the City shall have the right to undertake the defense, compromise and settlement of such claim for the account and at the expense of Contractor. Notwithstanding the above, if the City in its sole discretion so elects, City may also participate in the defense of such actions by employing counsel at its expense, without waiving the Contractor's obligations to indemnify or defend. Contractor shall not settle or compromise any claim or consent to the entry of any judgment without the prior written consent of the City and without an unconditional release of all liability by each claimant or plaintiff to the City. Page 11 of 20 Treatment of Confidential and Proprietary Information 5.21. For ten (10) years after the effective date of this Agreement, Contractor shall refrain from using any Confidential or Proprietary information except in connection with the Work or from disclosing it to any third party other than to employees of Contractor who require it in performance of the Work and except to such other third persons as City may authorize in writing. If disclosure to such an employee or to other third persons is so authorized, Contractor shall enter into with said party a confidentiality agreement containing provisions with respect to use and disclosure of Proprietary Information substantially the same as those contained in this Agreement. 5.22. Contractor shall take reasonable precautions to safeguard any documents containing Proprietary Information that City may supply to Contractor hereunder. Contractor may copy, in whole or part, such documents to the extent necessary for the performance of the Work, and Contractor shall return to City upon the completion of the Work or request by City all such documents and copies. 5.23. Except as expressly permitted by prior written consent of the City, Contractor and/or its subcontractors shall not disclose, permit the disclosure of, release, disseminate, or transfer, whether orally or by any other means, any part of such Confidential Information to any other person or entity. Contractor and/or its subcontractors shall return any written Confidential Information and all copies made of such items to the City upon the City's written request, but in any event not later than the date that Contractor has performed all Work to be performed pursuant to this Agreement. Contractor hereby agrees that such Confidential Information and any documents provided may be used by Contractor and/or its subcontractors only as authorized by the City. Contractor shall include a provision in its agreements with subcontractors that bind the subcontractors to this non -disclosure requirement. 5.24. All reports, plans, data, studies, maps, drawings, models, photographs, documents and other writings prepared by and for Contractor, its officers, employees, agents and subcontractors in the course of implementing this Agreement, with the exception of working notes, internal documents and Confidential Information provided by businesses located in City, shall be considered the property of City. Contractor shall deliver such documents and materials to the City as they, are generated; however, Contractor may take and retain copies of said documents and materials that are not Confidential Information, as desired. 5.25. All reports, information, data and exhibits prepared or assembled by Contractor in connection with the performance of its Services pursuant to this Agreement Page 12 of 20 are confidential until released by the City to the public and Contractor agrees that such documents shall not be available to any individual or organization without the written consent of the City prior to such release. 5.26. No reports, maps, or other documents produced in whole or in part under this Agreement shall be the subject of an application for copyright by or on behalf of Contractor. Compliance with Authority 5.27. Contractor shall comply with all laws, regulations, executive orders and other applicable requirements of any governmental agencies having jurisdiction including the Fair labor Standards Act, the Occupational Safety and Health Act and all those relating in any way to employment practices and protection of the environment. Contractor shall not discriminate against any employee or any applicant for employment for reasons of race, color, creed, religion, sex, sexual preference, age or national origin. 5.28. Contractor shall make timely payment of all employment taxes and of all social security and other contributions of every kind required to be made with respect to or measured by the wages and salaries of persons employed by Contractor. 5.29. Contractor shall indemnify City against, and hold City harmless from, any liability or loss including liability or loss from fines or penalties arising out of Contractor's failure to perform the obligations imposed upon it by Sections 5.27 and 5.28 of the Agreement. Progress Reports 5.30. Contractor shall meet with City staff, upon City's request, or as needed, in order to provide reports or information concerning the Services being performed by Contractor under this Agreement. Contractor's License Classification 5.31. Contractor shall possess all appropriate licenses for the duration of this Agreement. City Provided Data and Services 5.32. The City shall furnish the Contractor available studies, reports and other data pertinent to Contractor's Services; obtain or authorize Contractor to obtain or provide additional reports and data as required; furnish to Contractor services of Page 13 of 20 others required for the performance of Contractor's Services hereunder, and Contractor shall be entitled to use and rely upon all such information and services provided by the City in performing Contractor's Services under this Agreement. 5.33. The Contractor has no control over the cost of labor, materials, equipment or services furnished by others, or over equipment vendors' or construction contractors' methods of determining prices, or other competitive bidding or market conditions, practices or bidding strategies. Cost estimates are based on the Contractor's opinion based on experience and judgment. Contractor cannot and does not guarantee that proposals, bids or actual Project construction costs will not vary from cost estimates prepared by Contractor. SECTION 6. TERMINATION OF AGREEMENT 6.01. Unless otherwise terminated as provided in this Section, this Agreement will continue in effect until such time as all studies and budgets contemplated in the Services are complete and the City receives all project close-out documents, unless otherwise extended according to the terms and conditions set forth in this Agreement. Non -Default Termination 6.02. City, at its sole discretion, may terminate this Agreement upon thirty (30) days written notice to Contractor and such termination shall be effective in the manner specified in such notice and shall be without prejudice to any claim that either party may have against the other. During the thirty (30) day period after such notice is sent, the parties shall continue to act toward each other in good faith. 6.03. In the event of any such termination, in full and complete settlement for the termination of the Work, City shall pay Contractor for those Services performed prior to the date of delivery of the termination notice, plus compensation for (i) necessary Work performed during the notice period and authorized in the termination notice, and (ii) all costs reasonably and necessarily incurred by Contractor directly attributable to termination which could not reasonably have been avoided and for which Contractor is not otherwise compensated that are incurred through the date of termination and effectuating the termination ("Termination Expenses"). Termination Expenses shall not include lost profits, lost opportunities, consequential damages, or the like. In no event shall total payment exceed the Contract Price. Page 14 of 20 Termination on Occurrence of Stated Events 6.04. This Agreement will terminate automatically on the occurrence of any of the following events: A. Bankruptcy or insolvency of either party; or B. Sale of the Contractor; or C. Assignment of this Agreement by Contractor without City's written consent. Termination for Default 6.05. If Contractor defaults in the performance of this Agreement or materially breaches any of its provisions, City may immediately terminate this Agreement by giving written notification to Contractor indicating the effective date of such termination. Termination will take effect immediately upon the date specified in the notification. For the purposes of this paragraph, material breach of this Agreement includes, but is not limited to, the following: A. Contractor's failure to perform, in a manner satisfactory to the City in its sole discretion, the Services specified in Section 3 of this Agreement; or B. Contractor's material breach of any obligation or provision contained in Section 5 of this Agreement. 6.06. The waiver by either party of a breach or default by the other party shall not be deemed a waiver of any different or later breach; nor shall any delay or omission by either party to exercise any right it may have hereunder operate as a waiver of any breach or default of such a right. The failure of either party to this Agreement to exercise any of its rights under this Agreement does not constitute a breach thereof and shall not be deemed to be a waiver of such rights or a waiver of any subsequent breach. 6.07. In the event of any termination of this Agreement or reduction in the scope of the Work,, Contractor shall not be entitled to damages for loss of profits for the unexecuted portion of the Work or any other damages because of such termination or reduction. Page 15 of 20 r' r SECTION 7. GENERAL PROVISIONS Notices 7.01. All notices, approvals, consents and other communications between the parties shall be in writing, and shall be sent by fax or by certified mail (return receipt requested) to the respective addresses set forth below, or at such other address as may be furnished by either party to the other in writing. Faxed notices, confirmed by copy thereof, shall be deemed communicated as of the day the facsimile was sent. Mailed notices will be deemed communicated as of the day of receipt or the third (3rd) day after mailing, whichever occurs first. Contractor — City - City of Vernon Enhanced Turbine Output LLC Attn: City Administrator Attn: John S. Hoffman, Managing 4305 Santa Fe Avenue Member Vernon, CA 90058 2948 Macomb Street NW Washington, DC 20008 Fax: Fax: 323-826-1438 Telephone: 202-686-6654 Telephone: 323-583-8811 Copy to: Vernon City Hall Attn: Director of Light & Power 4305 Santa Fe Avenue Vernon, CA 90058 All invoices shall be mailed via U.S. Postal Service to the following address: Vernon City Hall Attn: Office of the Treasurer/Light & Power 4305 Santa Fe Avenue Vernon, CA 90058 Entire Agreement of the Parties 7.02. This Agreement supersedes any and all agreements, either oral or written, between the parties with respect to the rendering of Services by Contractor for City and contains all of the representations, covenants, and agreements between Page 16 of 20 the parties with respect to the subject matter of this Agreement and the rendering of those Services. Each party to this Agreement acknowledges that no representations, inducements, promises, or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not contained in this Agreement, and that no other agreement, statement, or promise not contained in this Agreement or a subsequent amendment or change order shall be vapid or binding. No amendment or change in the provisions of this Agreement shall be made, except in a formal written amendment signed by Contractor and an authorized representative of the City, or in a written change order. Contractor expressly waives all claims for compensation based upon quantum meruit, implied contract or oral contract. Each party represents and warrants that it has read and fully familiarized itself with this Agreement, and that such party has been fully authorized to sign this Agreement. 7.03. This Agreement shall be comprised of these included provisions, together with Exhibits A and B, which are all attached. In the event of conflict between this Agreement and any of the exhibits, including the Proposal, this Agreement shall prevail. Partial Invalidity 7.04. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will continue in full force and effect without being impaired or invalidated in any way. Law and Arbitration 7.05. All disputes arising out of or related to this Agreement, the conduct of either party in connection with this Agreement, and the relationship and rights of the parties in connection with this Agreement, whether characterized as breach of contract, tort, or otherwise (except for those requesting injunctive relief) shall be determined by binding arbitration in accordance with the terms of this Section. The submittal of all matters to arbitration in accordance with the terms of this Section is the sole and exclusive method, means and procedure to resolve any and all claims, disputes or disagreements arising under this Agreement, except for claims by either party which seek injunctive relief, which claims shall be resolved by suit filed in the Superior Court of Los Angeles County, California, the decision of which court shall be subject to appeal pursuant to applicable law. The parties hereby irrevocably waive any and all rights to the contrary and shall at all times conduct themselves in accordance with the terms of this Section, relying on arbitration as the sole means of resolution of disputes. Arbitration of all matters required to be arbitrated hereunder shall take place before a panel of three retired judges of the Superior Court of the State of California (the Page 17 of 20 "Arbitrators") under the auspices of Judicial Arbitration & Mediation Services, Inc. ("JAMS"). Such arbitration shall be initiated by the parties, or either of them, within ten (10) calendar days after either party sends notice of a demand to arbitrate (the "Arbitration Notice") to the other party and to JAMS. The Arbitration Notice shall contain a description of the subject matter of the arbitration, the dispute with respect thereto, the amount involved, if any, and the remedy or determination sought. Each party shall select a retired judge from the JAMS panel, and the two selected judges shall mutually agree on the third retired judge from the JAMS panel. If one of the parties does not select a retired judge from the JAMS panel within fourteen (14) calendar days after receipt of the Arbitration Notice, JAMS will select the second judge, and the judge selected by JAMS and the judge selected by the other party will select the third judge for the panel. The third judge is to be selected within ten (10) calendar days following the selection of the first two judges. The three judges will together serve as the Arbitrators. The arbitration shall be conducted in Los Angeles, California. Any party may be represented by counsel and/or other authorized representative. In rendering a decision(s), the Arbitrators shall determine the rights and obligations of the parties according to the substantive and procedural laws of the State of California and the terms of this Agreement. The decision of the Arbitrators shall be based on the evidence introduced at the hearing and accompanied by a written statement of decision as to each of the principal controverted issues. The agreement of two of the three Arbitrators as to the resolution of the dispute shall be a conclusive resolution. The Arbitrators shall deliver the written decision to the parties within thirty (30) calendar days following the date of the selection of the last of the Arbitrators. The decision shall be conclusive and binding, and it may thereafter be confirmed as a judgment by the Superior Court of the State of California, subject only to challenge on the grounds set forth in the California Code of Civil Procedure Section 1286.2. The validity and enforceability of the decision of the Arbitrators is to be determined exclusively by the California courts. Attorney's Fees 7.06. In the event a dispute, claim or litigation arises regarding this Agreement, the prevailing party shall be entitled to reimbursement for reasonable attorneys' fees and actual costs, which may be set by the arbitrators or the court in the same action or in'a separate action brought for that purpose, in addition to any other relief which is obtained. 7.07. Neither party shall be considered in default in any of its obligations under this Agreement when a failure of performance shall be due to an uncontrollable force. The term "uncontrollable force" shall mean any cause beyond the control of the party affected, including, but not restricted to, flood, earthquake, storm, fire, Page 18 of 20 4 lightning, epidemic, war, riot, civil disturbance or disobedience, federal, state, or municipal action, statute, ordinance, or regulation, embargoes of the United States Government or any other government, which by exercise of due diligence such party could not reasonably have been expected to avoid and by exercise of due diligence has been unable to overcome. Either party rendered unable to fulfill any of its obligations under this Agreement by reason of an uncontrollable force shall give written notice within five (5) business days of such fact to the other party and shall exercise due diligence to remove such inability with all reasonable dispatch. 7.08. Except as may otherwise be specifically provided herein, this Agreement may be modified or amended only by a written document executed by both Contractor and the City and approved as to form by the City Attorney. 7.09. The captions used in this Agreement are for convenience only and shall in no way define, limit or describe the scope or intent of the Agreement or any part thereof. Page 19 of 20 7.10. City reserves the right to award similar contracts to multiple contractors to ensure the City has adequate services. IN WITNESS WHEREOF, the parties have executed the Agreement on the dates shown below. City: City of Vernon Name: Title: Date:_ ATTEST: Manuela Giron City Clerk Contractor: Enhanced Turbine Output LLC Name: Title: Date: Name: Title: Date: Page 20 of 20 APPROVED AS TO FORM: Jeff A. Harrison City Attorney 1-0,614 e JUL -2 2007 ETO CITYATfORNEYDEPT. ENHANCED TURBINE OUTPUT LLC (ETO) June 26, 2007 4r�z— Mr. Donal O'Callaghan Director Light and Power City of Vernon 4305 Santa Fe Avenue Vernon, CA 90058 Subject: Cost Proposal to Provide Design and Thermodynamic Modeling Services to increase power, lower heat rate and reduce emissions for a Siemens SCC6-5000F Combustion Turbine in the proposed VPP 3z1 Power Plant Project Dear Mr. O'Callaghan As per my discussions with Peter Hervish and a telephone conference call with yourself and others on April 22, 2007 we are attaching a copy of our standard presentation which defines the scope of our studies. The scope of our services will include Providing Design and Thermodynamic Modeling Services aimed to increase power and hopefully to lower heat rate for a Siemens SCC6-5000F Combustion Turbine in the proposed VPP 3x1 Power Plant Project. In parallel to our power and heat rate design and modeling studies outlined above Combustion Science & Engineering, Inc. will characterize the effect of our POWERCOOL system on Turbine Emissions. This will be produced under a separate PO for a not -to -exceed cost of $50,000 also submitted this date. The Scope of Services that ENHANCED TURBINE OUTPUT LLC (ETO) will provide are: l) Secure software rentals for project to assure that accurate representation of the PowerCool project. 2) Develop a model of baseline plant output and heat rate using the software modeling. 3) Assess various configurations of PowerCoolTM for the 3 x 1 PowerCool VPP project: a. For output b. For heat rate ETO LLC 2948 Macomb Street NW Washington DC 20008 USA 202-686-6654 c. For emissions d. For cost 4) Develop an excel spreadsheet representation of output. 5) Develop briefings. 6) Develop memos. 7) Visit site. 8) Evaluate providers of services for PowerCool'rm components and construction. 9) Provide budget estimate for final proposed plan to upgrade a Siemens SCC6- 5000E Combustion Turbine. Our proposal is for a not -to -exceed cost estimate of $50,000 for the complete study and integration of the emissions studies by Combustion Science & Engineering, Inc. which will characterize the effect of our POWERCOOL system on Turbine Emissions. This will be produced under a separate PO also submitted this date by them directly. A breakdown of our rates is as follows: Software rental and licensing fees: $4000 to $8,000 per quarter depending on which modules are used. John Hoffman and Soren Horn's rate is $250/hr. If you have any questions or comments, please do not hesitate to call at your convenience. Sincerely, John S Hoffman Managing Member, Enhanced Turbine Output LLC 2948 Macomb Street NW Washington DC 20008 202-686-6654, email: hoffman@ etollc.com 17 ETO LLC 2948 Macomb Street NW Washington lx 20008 USA 202-686-6654 2 0 0 V L 3 O a 4m mc 4 0 �O m m _ V_ E 0 L a o V m W �V C s V � 4w C w E C O L 55 W O CL � 0 0 C ( •— �O cn E -0 c o = ru M O 'a-' r' V >.w0 -0OO E cu cn O O .Q Q U N N C C:� N V O v o U c E c O (v f' Q- ia � o V^` N W ^^L oa Tq 0- r L i. W t m cn as L IM CO N cn = L cn LL V Ic V Lm a� F.. 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Enhanced Turbine Output LLC (ETO) City of Vernon By By Date Date INSTRUCTIONS TO ENHANCED TURBINE Contract Number: Instruction to Enhanced Turbine Number: Date: Specific Instructions to Enhanced Turbine: In accordance with the Terms and Conditions of the Agreement, the City classifies these instructions as: Supplementary instructions, not involving a Change (Should these instructions be, in the opinion of Enhanced Turbine, a "Change", written notice thereof must be given to City within 10 days of the receipt of these instructions. If such written notice is given, Enhanced Turbine shall not commence with the work so ordered until written agreement is reached on the classification of these instructions and on the resulting adjustment in contract compensation, if any.) In the event that City and Enhanced Turbine fail to agree on the classification of these instructions or resulting adjustment in contract compensation, if any, refer to the Changes Section of the Agreement. A Change (Enhanced Turbine shall, within 10 days of the receipt of these instructions, furnish City a statement of its proposal for adjustment in contract compensation occasioned hereby. Enhanced Turbine shall not commence with the work so ordered until written agreement is reached on the resulting adjustment in contract compensation, if any.) In the event that City and Enhanced Turbine fail to agree on the classification of these instructions or resulting adjustments in contract compensation, if any, refer to the Changes Sections of the Agreement. City Representative Date Please acknowledge receipt of this instruction by returning one copy signed in the space provided below. Enhanced Turbine's signature hereon does not indicate his acceptance of the classification assigned hereto by City. Enhanced Turbine's Representative Date SERVICES AGREEMENT THIS AGREEMENT is made, entered into and executed in duplicate originals, either copy of which may be considered and used as the original hereof for all purposes, as of this 6th day of August, 2007, in the City of Vernon, County of Los Angeles, California BY AND BETWEEN THE CITY OF VERNON, a municipal corporation, hereinafter referred to as the "City," 4305 Santa Fe Avenue Vernon, California 90058 AND ENHANCED TURBINE OUTPUT LLC, hereinafter referred as "Contractor," 2948 Macomb Street NW Washington, DC 20008 RECITALS WHEREAS, the City desires to retain the services of an independent contractor to conduct power and heat rate design and thermodynamic modeling studies in parallel to studies conducted by Combustion Science & Engineering, Inc. for the purpose of increasing power and hopefully lowering heat rate of combustion turbine at the proposed Vernon Power Plant Project (the "Services"); and WHEREAS, Contractor has prepared a scope and fee proposal dated June 26, 2007, for the Services, a copy of which is attached hereto as Exhibit A and incorporated by this reference (the "Proposal"); and WHEREAS, Contractor represents that it is qualified and capable of furnishing the labor, materials and expertise necessary to perform the Services that the City requires, as set forth in this Agreement, and is willing to do so on the terms and conditions set forth below; and WHEREAS, the Contractor's cost proposal is acceptable to the City; and WHEREAS, the City desires to enter into an agreement with Contractor Page 1 of 20 1 perform the Services on a contractual basis as defined in the terms and conditions set forth below. NOW, THEREFORE, IT IS AGREED AS FOLLOWS: SECTION 1. TERM OF CONTRACT 1.01. This Agreement will become effective on August 7, 2007, and will continue in effect until such time as the Services are complete and the City has received all project closeout documents, or until terminated as provided in this Agreement. SECTION 2. DEFINITION OF TERMS 2.01. Whenever used in the Agreement, the following terms shall mean: A. "Agreement" shall mean that formally executed Agreement or Contract which includes the Contract Documents attached. The Agreement constitutes the entire agreement between the parties relating to its subject matter. B. "City" shall mean the City of Vernon, California, the entity which has executed the Agreement and, where applicable, its affiliated companies, and its officers, directors, employees, representatives and agents. C. "Contractor" shall mean Enhanced Turbine Output LLC (ETO) and where applicable, its affiliated companies, and its officers, directors, employees, representatives and agents. D. "Contract Documents" shall include any inquiry, invitation to bid, or proposal which may have, but not necessarily, preceded execution of the Agreement, and including the General Provisions and all exhibits and schedules attached to the Agreement and all plans and specifications identified in the Contract Documents. E. "Contract Price" shall mean the compensation set forth or provided for in Section 4.01 of this Agreement. Whether it expressly provides for the reimbursement of costs incurred by Contractor or simply for the payment of a lump sum of money, it is intended to be the full and complete payment for satisfactory completion of the Work and, unless otherwise stated, to cover all costs whether for materials, equipment, tools, labor, services and taxes and all overhead, rentals and profit or fee, if any. Page 2 of 20 F. "General Provisions" or "General Conditions" shall mean the General Provisions as set forth in this Agreement. G. "Premises" shall mean the physical premises under City's control or ownership where Work hereunder is to be performed. H. "Proprietary Information" and "Confidential Information" shall mean all information, whether written or oral, which Contractor acquires from, through or on behalf of City, directly or indirectly, or which arises out of the Work, concerning the Work or proprietary processes involved in the Work including, without limitation, information concerning past, present or future business plans of City, information about the operations of City's Premises, and other City information or know-how obtained during the Work, except information falling into any of the following categories: 1. Information which, at the time of disclosure hereunder, is in the public domain; 2. Information which, after disclosure hereunder, enters the public domain, except where such entry is the result of Contractor's or any entity within Contractor's control breach of this Agreement; 3. Information which, prior to disclosure hereunder, was already in Contractor's possession without limitation regarding disclosure to others; or 4. Information which, subsequent to disclosure hereunder, is obtained by Contractor from a third party who is lawfully in possession of such information and not subject to a contractual or fiduciary relationship to City with respect to said information and who does not require Contractor to agree to refrain from disclosing such information to others. "Subcontractor' shall mean any first or lower -tier subcontractor and its employees, representatives, agents, subcontractors or other personnel who have been approved in the manner required by this Agreement. J. 'Work" or "Services" shall mean the work performed by Contractor and required to be performed from time to time by City under this Agreement. Page 3 of 20 SECTION 3. SERVICES TO BE PERFORMED BY CONTRACTOR Specific Services 3.01. Contractor's Services shall include, but will not be limited to, conducting power and heat rate design and thermodynamic modeling studies, integrating the emissions studies by Combustion Science & Engineering, Inc. which will characterize the effect of the POWERCOOL system on turbine emissions and preparing a budget estimate for final proposed plan to upgrade a Siemens SCC6- 5000F Combustion Turbine at the proposed Vernon Power Plant Project. The Contractor's Services are more specifically detailed in the Proposal attached hereto as Exhibit "A." Change of Services 3.02. City may at any time, by written change order executed by the City, make changes only to extend the Work duration and total compensation of Contractor's Work. Only the City shall authorize changes in the scope of Work, or duties and obligations. 3.03. City may make "Changes" by increasing, reducing or deviating from the requirements of the scope of Work. A form of Change Order is set forth in Exhibit B attached hereto and incorporated by reference. Timing of Services 3.04. Contractor's Services shall commence upon the execution of this Agreement by both parties and award by the City Council and shall end at such time as the Services are completed and the City receives all project close-out documents, unless this Agreement is otherwise terminated according to Section 6 of this Agreement or extended according to the conditions and terms set forth in this Agreement. 3.05. Time is of the essence for all Work contemplated by this Agreement. Contractor shall start performing Services under this Agreement only after notification by the City. Method of Performing Services 3.06. Contractor will determine and is responsible for the method, details, and means of performing the above -described Services. Page 4 of 20 Status of Contractor 3.07. Contractor enters into this Agreement, and will remain throughout the term of this Agreement, as an independent contractor. Contractor agrees that it is not and will not become an employee, partner, agent, or principal of City while this Agreement is in effect. Contractor agrees it is not entitled to the rights or benefits afforded to City's employees, including disability or unemployment insurance, workers' compensation, medical insurance, sick leave, or any other employment benefit. Contractor is responsible for providing, at its own expense, disability, unemployment, and other insurance, worker's compensation, training, permits, and licenses for itself and for its employees and subcontractors. Contractor shall have complete and sole control over its employees, the details of the Services and methods by which the Services are accomplished, it being understood that City is interested only in the results to be obtained by Contractor. 3.08. Contractor has no authority to enter contracts or agreements on behalf of City. This Agreement does not create a partnership or joint venture between the parties. Payment of Taxes 3.09. Contractor is responsible for paying when due all income taxes, including estimated taxes, incurred as a result of the compensation paid by City to the Contractor for Services under this Agreement. Contractor agrees to indemnify City for any claims, costs, losses, fees, penalties, interest, or damages suffered by City resulting from Contractor's failure to comply with this provision. 3.10. Payroll taxes including federal, state and local taxes shall not be withheld or paid by City on behalf of Contractor or for the employees of the Contractor. Contractor shall not be treated as an employee with respect to the Services performed hereunder for federal or state tax purposes. Contractor shall be responsible to pay taxes mandated by law. 3.11. Since Contractor is not an employee of City, Contractor is not eligible for and shall not participate in any employee benefit of City, including pension, health or other fringe benefits. SECTION 4. COMPENSATION 4.01. In consideration for th rvices to be performed by Contractor, described in Section 3 of this Agree ent, City agrees to pay Contractor according to the Proposal set forth in h' it A the not to exceed amount of Fifty Thousand Dollars and No Cen ($5 000.00), on a time and material basis (the "Contract Page 5 of 20 %` i (�*\ 'Jn bt �piDrrv,PAl, b'� p�°SGr> r0�9,/1 �nlntAJl A01168?rPt4 d��r. ia%,v✓t�1 3„ . Al„ (- Price"). Entire mpensation 4.02. The Contract Price is full and complete compensation, and constitutes the entire compensation due Contractor for the Services and any and all of Contractor's obligations hereunder. The Contract Price set forth above is not subject to escalation for any reason except as expressly set forth in this Agreement. No adjustments in compensation shall be made as a result of changes in the value of any currency. The Contract Price shall only be adjusted by formal, written Change Order or amendment to this Agreement. Payment of Compensation 4.03. For Services rendered under Section 3 of this Agreement, Contractor shall be entitled to receive monthly payments. Contractor shall submit to City a monthly invoice and statement of Services, prepared in accordance with City requirements, by the fifteenth (15th) of each month, for the prior calendar month's completed Work. City will make payments to Contractor within thirty (30) days after acceptance and approval of the invoice received from Contractor. 4.04. Contractor shall be responsible for paying any subcontractors used in the performance of this Agreement. Subcontractors shall not bill the City directly. Expenses 4.05. City shall not be liable to Contractor for any expenses paid or incurred by Contractor. Expenses may only be billed if advance written approval has been obtained from the City. Compensation for Changes 4.06. The compensation due Contractor, or the credit due City, for changes may not be established verbally, and shall be established in a written change order signed by City as described in Sections 3.02 and 3.03 of this Agreement. Compensation adjustments in each such change order shall be established by one or more of the following bases, as determined by City: (a) a lump sum price to be negotiated between the parties; or (b) Work unit rates to be negotiated between the parties. Once established, the amount of the compensation due Contractor or credit due City for a change shall not be subject to adjustment for any reason, including changes in the value of any currency. Page 6 of 20 SECTION 5. OBLIGATIONS OF THE PARTIES 5.01. Contractor is responsible for meeting all conditions of this Agreement and City Standards & Details for all Work performed. Substandard Work, as determined solely by the City, shall be redone at the expense of the Contractor. Products of Consulting 5.02. All products of consulting services including, but not limited to, manuals, documents and/or computer software, shall become the property of the City and shall be delivered to the City before the end of the performance of this Agreement. Basic notes and sketches, charts, computations and other data shall be made available to City without restriction or limitation on their use. Liability Insurance 5.03. Contractor and its subcontractor(s), if any, shall, prior to commencement of any Work and for the duration of this Agreement, obtain and maintain at its own expense, those minimum levels of insurance coverage as set forth below. Prior to commencing Work hereunder, Contractor shall provide the City with proof of insurance providing and maintaining the coverage and endorsements set forth below. Said proof of insurance shall also provide that said policy or policies shall not be canceled or materially reduced in coverage without giving at least thirty (30) days prior written notice to the City. 5.04. The insurance coverage as listed herein, shall be properly endorsed to include those contractual obligations which may be identified further within this Agreement and shall be endorsed to provide City all the rights and privileges of an additional insured. 5.05. Contractor shall cause its insurers to issue, including but not limited to, Certificates of Insurance or, upon request, certified copies of the insurance policies evidencing that the coverage and policy endorsements required under this Agreement, are maintained in force. 5.06. Contractor shall ensure its subcontractor(s), if any, maintain those insurance requirements as specified in this Agreement and are endorsed as additional insured(s) on all required Contractor insurance coverage. Contractor and its subcontractor(s), if any, shall maintain in effect the following minimum insurance coverage on an Occurrence Form Policy: 1. Workers Compensation wi ' the statutory limits, including occupational` 9 illness or disease coverag accordance with the laws of the nation, Page 7 of 20 state, territory, r province exercising jurisdiction o er Contractor's employees. Wo ers Compensation and Employ rs Liability Insurance shall have a mini um limit of $1,000,000 per o currence. Contractor further agrees to h Id harmless and indemni City for any and all claims arising out of an inj , disability, or death o any of Contractor's employees or agents. 2. Comprehensive GenerVaynd Insur ce, including, but not limited to, Contractual Liability, Pd C pleted Operations Liability, Broad Form Property Damagily jury Liability, and Explosion; Collapse and Undergroili , with a minimum combined single limit of $2,000,000 peroccu3. Comprehensive Automrance, including, but not limited to, all owned, non -owned or cles with a minimum combined single limit of $1,000,000 per occuodily injury and property damage. 4. Excess Liability/Insurce with limit of $2,000,000. Such evidence of insurance can through the imary insurance coverage or through an excy. Such insura ce shall at all times be on an occurrence forovide policy con ' ions as broad as those required in the primary i. 5. Professional Liability Insurance with limits of $2,000,000. 5.07. Contractor agrees to prov a inc above. Contractor shall su it with these minimum require r of performance under this Agr performance of its Work under t been obtained and proof of i u City. �hce in the amounts and forms specified I `WAO(. the City documentation indicating compliance no less than one (1) day prior to the beginning ent. Contractor shall not commence Agreement until the above insurance has tqe has been filed with and approved by the 5.08. Contractor shall not permit a subco tractor r vendor to perform work on City G,\�-,AOtr premises unless and until a certificat subcontractor or vendor has worker's employs subcontractors as part of the coverage is required. Contractor may under its own policy or shall furnish s meeting the requirements set forth ap K rance is obtainedshowing that such nsation coverage. If Contractor es rendered, Contractor's protective e all subcontractors as insureds insurance for each subcontractor, Page 8 of 20 Representations 5.09. To the fullest extent permitted by law, Contractor shall defend, indemnify and hold harmless City and its elected officials, officers, agents and employees from all claims, suits, actions, demands, damages, liabilities, expenses, judgments, settlements, and penalties, losses, fines, and all costs and expenses incurred in connection therewith, including reasonable attorney's fees and all costs of defense, to the extent arising out of or attributable to the negligent or wrongful acts of Contractor or its employees or agents under this Agreement, except to the extent arising from or caused by the sole negligence or willful misconduct of the City, its officers, agents or employees. The terms of this indemnity shall survive the termination of this Agreement. The obligations in this Paragraph are in addition to Contractor's duty to provide insurance and shall not be limited by any limitation on the amount or type of insurance coverage carried by Contractor. 5.10. Contractor and City represent that each has read and understands the Agreement and Contract Documents. The Contractor represents it understands the City's regulations concerning Premises access, badges, parking, security, safety, fire, prohibited drugs and alcohol, and smoking and other rules, and that Contractor has visited Premises where the Work is to be done and is familiar with the local conditions under which it is to be done. Contractor also represents that it is experienced in performing and competent and qualified to perform the kind of tasks or assignments included in the Work and employs or has available for employment in sufficient numbers all unskilled, skilled, administrative, supervisory, professional and managerial or other personnel required to perform the Work as required by this Agreement. 5.11. Contractor represents that it has the qualifications and skills necessary to perform the Services under this Agreement in a competent, professional manner, without the advice or direction of City. This means Contractor is able to fulfill the requirements of this Agreement. Failure to perform all the Services required under this Agreement constitutes a material breach of the Agreement. Contractor has complete and sole discretion for the manner in which the Work under this Agreement will be performed. 5.12. Contractor declares and states that is has complied with and will continue to comply with all federal, state and local laws regarding business permits and licenses that may be required to carry out the Services to be performed under this Agreement. 5.13. Contractor agrees to indemnify, defend, and hold City free and harmless from all claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries and deficiencies, including interest, penalties, attorney's fees and Page 9 of 20 costs, that City may incur s representation or provision o intentional acts or omissio s employees or based on ny c used or furnished by C ntracto an infringement of an United S�'� result of a breach by Contractor of any ntained in this Agreement or any negligent or AC y Contractor, it subcontractors, agents, and im that any software program or other product .n the performance of this Agreement constitutes St es patent or copyright. 5.14. Contractor's rights under this Agreement may not be assigned nor may its duties be delegated or subcontracted without the prior written consent of City. Any assignment or delegation or subcontract in violation of this Section shall, at City's sole discretion, be void. Consent by City shall not relieve Contractor of responsibility for performance of Contractor's obligations hereunder. City may assign all or any part of this Agreement at any time effective immediately upon written notification to Contractor. 5.15 At all times while Work is. being performed on the Premises each party shall be represented thereon by a designated representative. Each party may notify the other in writing of the identity of such persons from time to time. Work Injury 5.16. The treatment and care of injuries sustained by Contractor's employees, subcontractors, representatives or other personnel shall be and remain the responsibility of Contractor. City's first aid facilities, if any, however, will be made available to Contractor's employees in emergency cases that are the direct result of accidents occurring on the Premises. City shall incur no liability for, and Contractor hereby agrees to indemnify City against, any causes of action, claim, liability or costs, including attorney's fees, arising in whole or part out of the furnishing of such first aid facilities or assistance to Contractor's employees, subcontractors, representatives or other personnel, or out of the failure to furnish such facilities or assistance. Records, Inspection and Audit 5.17. During the course of Wor being pe subcontractors, shall main t in and r I ompletion thereof, complet i which are chargeable to the Ci authorized representatives shal upon written reasonable notice, to be maintained and retained accounting for the total time do - full or part time on the Work Armed, Contractor and any of its J tain, not less than three (3) years after :urate records of the Contractor's costs Dr this Agreement. City or its designated, the right during this three (3) year period, ;pect and audit those records. Such records Contractor shall include: (a) payroll record n of the Contractor's employees working permit�vllacing to payroll payments in cash); (b) Page 10 of 20 invoices for purchases, receikng d issuing documents, and all the other unit - inventory records for the Contr or's stores, stock or capital items; (c) paid invoices and canceled checks f material purchased and for the subcontractor's and any other third parties' ch rg s and (d) any other documentation City deems necessary to support costs a d ch rges under this Agreement. Corporate Conduct 5.18. Contractor, its employees, agents or representatives shall not offer or give to an officer, official or employee of City gifts, entertainment, payments, loans or other gratuities to influence the award of a contract or obtain favorable treatment under this Agreement or any other contract. Standard of Care 5.19 Contractor agrees that all Services provided will be conducted by the principal and competent staff members, if any, under the supervision of the principal, and that Services will be performed and rendered diligently. Contractor represents that it has, or shall secure, at its own expense, all personnel required to perform Contractor's Services under this Agreement, but at all times shall be responsible for the Services of such personnel. Contractor may not employ any subcontractor without the prior written approval of the City. Indemnity Process 5.20. The City shall notify Contractor in writing of any suits, claims or demands covered by any indemnity contained in this Agreement. Promptly after receipt of such notice, Contractor shall assume the defense of such claim with counsel reasonably satisfactory to City. If Contractor fails, within a reasonable time after receipt of such notice, to assume the defense with counsel reasonably satisfactory to City, or if, in the reasonable judgment of City, a direct or indirect conflict of interest exists between the parties with respect to the claim, or if in the sole judgment of City the assumption and conduct of the defense by Contractor would materially and adversely affect City in any manner or prejudice its ability to conduct a successful defense, then the City shall have the right to undertake the defense, compromise and settlement of such claim for the account and at the expense of Contractor. Notwithstanding the above, if the City in its sole discretion so elects, City may also participate in the defense of such actions by employing counsel at its expense, without waiving the Contractor's obligations to indemnify or defend. Contractor shall not settle or compromise any claim or consent to the entry of any judgment without the prior written consent of the City and without an unconditional release of all liability by each claimant or plaintiff to the City. Page 11 of 20 Treatment of Confidential and Proprietary Information 5.21. For ten (10) years after the effective date of this Agreement, Contractor shall refrain from using any Confidential or Proprietary Information except in connection with the Work or from disclosing it to any third party other than to employees of Contractor who require it in performance of the Work and except to such other third persons as City may authorize in writing. If disclosure to such an employee or to other third persons is so authorized, Contractor shall enter into with said party a confidentiality agreement containing provisions with respect to use and disclosure of Proprietary Information substantially the same as those contained in this Agreement. 5.22. Contractor shall take reasonable precautions to safeguard any documents containing Proprietary Information that City may supply to Contractor hereunder. Contractor may copy, in whole or part, such documents to the extent necessary for the performance of the Work, and Contractor shall return to City upon the completion of the Work or request by City all such documents and copies. 5.23. Except as expressly permitted by prior written consent of the City, Contractor and/or its subcontractors shall not disclose, permit the disclosure of, release, disseminate, or transfer, whether orally or by any other means, any part of such Confidential information to any other person or entity. Contractor and/or its subcontractors shall return any written Confidential Information and all copies made of such items to the City upon the City's written request, but in any event not later than the date that Contractor has performed all Work to be performed pursuant to this Agreement. Contractor hereby agrees that such Confidential Information and any documents provided may be used by Contractor and/or its subcontractors only as authorized by the City. Contractor shall include a provision in its agreements with subcontractors that bind the subcontractors to this non -disclosure requirement. 5.24. All reports, plans, data, studies, maps, drawings, models, photographs, documents and other writings prepared by and for Contractor, its officers, employees, agents and subcontractors in the course of implementing this Agreement, with the exception of working notes, internal documents and Confidential Information provided by businesses located in City, shall be considered the property of City. Contractor shall deliver such documents and materials to the City as they are generated; however, Contractor may take and retain copies of said documents and materials that are not Confidential Information, as desired. 5.25. All reports, information, data and exhibits prepared or assembled by Contractor in connection with the performance of its Services pursuant to this Agreement Page 12 of 20 are confidential until released by the City to the public and Contractor agrees that such documents shall not be available to any individual or organization without the written consent of the City prior to such release. 5.26. No reports, maps, or other documents produced in whole or in part under this Agreement shall be the subject of an application for copyright by or on behalf of Contractor. Compliance with Authority 5.27. Contractor shall comply with all laws, regulations, executive orders and other applicable requirements of any governmental agencies having jurisdiction including the Fair labor Standards Act, the Occupational Safety and Health Act and all those relating in any way to employment practices and protection of the environment. Contractor shall not discriminate against any employee or any applicant for employment for reasons of race, color, creed, religion, sex, sexual preference, age or national origin. 5.28. Contractor shall make timely payment of all employment taxes and of all social security and other contributions of every kind required to be made with respect to or measured by the wages and salaries of persons employed by Contractor. 5.29. Contractor shall indemnify City against, and hold City harmless from, any liability or loss including liability or loss from fines or penalties arising out of Contractor's failure to perform the obligations imposed upon it by Sections 5.27 and 5.28 of the Agreement. Progress Reports 5.30. Contractor shall meet with City staff, upon City's request, or as needed, in order to provide reports or information concerning the Services being performed by Contractor under this Agreement. Contractor's License Classification 5.31. Contractor shall possess all appropriate licenses for the duration of this Agreement. City Provided Data and Services 5.32. The City shall furnish the Contractor available studies, reports and other data pertinent to Contractor's Services; obtain or authorize Contractor to obtain or provide additional reports and data as required; furnish to Contractor services of Page 13 of 20 others required for the performance of Contractor's Services hereunder, and Contractor shall be entitled to use and rely upon all such information and services provided by the City in performing Contractor's Services under this Agreement. 5.33. The Contractor has no control over the cost of labor, materials, equipment or services furnished by others, or over equipment vendors' or construction contractors' methods of determining prices, or other competitive bidding or market conditions, practices or bidding strategies. Cost estimates are based on the Contractor's opinion based on experience and judgment. Contractor cannot and does not guarantee that proposals, bids or actual Project construction costs will not vary from cost estimates prepared by Contractor. SECTION 6. TERMINATION OF AGREEMENT 6.01. Unless otherwise terminated as provided in this Section, this Agreement will continue in effect until such time as all studies and budgets contemplated in the Services are complete and the City receives all project close-out documents, unless otherwise extended according to the terms and conditions set forth in this Agreement. Non -Default Termination 6.02. City, at its sole discretion, may terminate this Agreement upon thirty (30) days written notice to Contractor and such termination shall be effective in the manner specified in such notice and shall be without prejudice to any claim that either party may have against the other. During the thirty (30) day period after such notice is sent, the parties shall continue to act toward each other in good faith. 6.03. In the event of any such termination, in full and complete settlement for the termination of the Work, City shall pay Contractor for those Services performed prior to the date of delivery of the termination notice, plus compensation for (i) necessary Work performed during the notice period and authorized in the termination notice, and (ii) all costs reasonably and necessarily incurred by Contractor directly attributable to termination which could not reasonably have been avoided and for which Contractor is not otherwise compensated that are incurred through the date of termination and effectuating the termination ("Termination Expenses"). Termination Expenses shall not include lost profits, lost opportunities, consequential damages, or the like. In no event shall total payment exceed the Contract Price. Page 14 of 20 Termination on Occurrence of Stated Events 6.04. This Agreement will terminate automatically on the occurrence of any of the following events: A. Bankruptcy or insolvency of either party; or B. Sale of the Contractor; or C. Assignment of this Agreement by Contractor without City's written consent. Termination for Default 6.05. If Contractor defaults in the performance of this Agreement or materially breaches any of its provisions, City may immediately terminate this Agreement by giving written notification to Contractor indicating the effective date of such termination. Termination will take effect immediately upon the date specified in the notification. For the purposes of this paragraph, material breach of this Agreement includes, but is not limited to, the following: A. Contractor's failure to perform, in a manner satisfactory to the City in its sole discretion, the Services specified in Section 3 of this Agreement; or B. Contractor's material breach of any obligation or provision contained in Section 5 of this Agreement. 6.06. The waiver by either party of a breach or default by the other party shall not be deemed a waiver of any different or later breach; nor shall any delay or omission by either party to exercise any right it may have hereunder operate as a waiver of any breach or default of such a right. The failure of either party to this Agreement to exercise any of its rights under this Agreement does not constitute a breach thereof and shall not be deemed to be a waiver of such rights or a waiver of any subsequent breach. 6.07. In the event of any termination of this Agreement or reduction in the scope of the Work, Contractor shall not be entitled to damages for loss of profits for the unexecuted portion of the Work or any other damages because of such termination or reduction. Page 15 of 20 SECTION 7. GENERAL PROVISIONS Notices 7.01. All notices, approvals, consents and other communications between the parties shall be in writing, and shall be sent by fax or by certified mail (return receipt requested) to the respective addresses set forth below, or at such other address as may be furnished by either party to the other in writing. Faxed notices, confirmed by copy thereof, shall be deemed communicated as of the day the facsimile was sent. Mailed notices will be deemed communicated as of the day of receipt or the third (3rd) day after mailing, whichever occurs first. Contractor — City - City of Vernon Enhanced Turbine Output LLC Attn: City Administrator Attn: John S. Hoffman, Managing 4305 Santa Fe Avenue Member Vernon, CA 90058 2948 Macomb Street NW Washington, DC 20008 Fax: Fax: 323-826-1438 Telephone: 202-686-6654 Telephone: 323-583-8811 Copy to: Vernon City Hall Attn: Director of Light & Power 4305 Santa Fe Avenue Vernon, CA 90058 All invoices shall be mailed via U.S. Postal Service to the following address: Vernon City Hall Attn: Office of the Treasurer/Light & Power 4305 Santa Fe Avenue Vernon, CA 90058 Entire Agreement of the Parties 7.02. This Agreement supersedes any and all agreements, either oral or written, between the parties with respect to the rendering of Services by Contractor for City and contains all of the representations, covenants, and agreements between Page 16 of 20 the parties with respect to the subject matter of this Agreement and the rendering of those Services. Each party to this Agreement acknowledges that no representations, inducements, promises, or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not contained in this Agreement, and that no other agreement, statement, or promise not contained in this Agreement or a subsequent amendment or change order shall be valid or binding. No amendment or change in the provisions of this Agreement shall be made, except in a formal written amendment signed by Contractor and an authorized representative of the City, or in a written change order. Contractor expressly waives all claims for compensation based upon quantum meruit, implied contract or oral contract. Each party represents and warrants that it has read and fully familiarized itself with this Agreement, and that such party has been fully authorized to sign this Agreement. 7.03. This Agreement shall be comprised of these included provisions, together with Exhibits A and B, which are all attached. In the event of conflict between this Agreement and any of the exhibits, including the Proposal, this Agreement shall prevail. Partial Invalidity 7.04. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will continue in full force and effect without being impaired or invalidated in any way. Law and Arbitration 7.05. All disputes arising out of or related to this Agreement, the conduct of either party in connection with this Agreement, and the relationship and rights of the parties in connection with this Agreement, whether characterized as breach of contract, tort, or otherwise (except for those requesting injunctive relief) shall be determined by binding arbitration in accordance with the terms of this Section. The submittal of all matters to arbitration in accordance with the terms of this Section is the sole and exclusive method, means and procedure to resolve any and all claims, disputes or disagreements arising under this Agreement, except for claims by either party which seek injunctive relief, which claims shall be resolved by suit filed in the Superior Court of Los Angeles County, California, the decision of which court shall be subject to appeal pursuant to applicable law. The parties hereby irrevocably waive any and all rights to the contrary and shall at all times conduct themselves in accordance with the terms of this Section, relying on arbitration as the sole means of resolution of disputes. Arbitration of all matters required to be arbitrated hereunder shall take place before a panel of three retired judges of the Superior Court of the State of California (the Page 17 of 20 "Arbitrators") under the auspices of Judicial Arbitration & Mediation Services, Inc. ("JAMS"). Such arbitration shall be initiated by the parties, or either of ahem, within ten (10) calendar days after either party sends notice of a demand to arbitrate (the "Arbitration Notice") to the other party and to JAMS. The Arbitration Notice shall contain a description of the subject matter of the arbitration, the dispute with respect thereto, the amount involved, if any, and the remedy or determination sought. Each party shall select a retired judge from the JAMS panel, and the two selected judges shall mutually agree on the third retired judge from the JAMS panel. If one of the parties does not select a retired judge from the JAMS panel within fourteen (14) calendar days after receipt of the Arbitration Notice, JAMS will select the second judge, and the judge selected by JAMS and the judge selected by the other party will select the third judge for the panel. The third judge is to be selected within ten (10) calendar days following the selection of the first two judges. The three judges will together serve as the Arbitrators. The arbitration shall be conducted in Los Angeles, California. Any party may be represented by counsel and/or other authorized representative. In rendering a decision(s), the Arbitrators shall determine the rights and obligations of the parties according to the substantive and procedural laws of the State of California and the terms of this Agreement. The decision of the Arbitrators shall be based on the evidence introduced at the hearing and accompanied by a written statement of decision as to each of the principal controverted issues. The agreement of two of the three Arbitrators as to the resolution of the dispute shall be a conclusive resolution. The Arbitrators shall deliver the written decision to the parties within thirty (30) calendar days following the date of the selection of the last of the Arbitrators. The decision shall be conclusive and binding, and it may thereafter be confirmed as a judgment by the Superior Court of the State of California, subject only to challenge on the grounds set forth in the California Code of Civil Procedure Section 1286.2. The validity and enforceability of the decision of the Arbitrators is to be determined exclusively by the California courts. Attorney's Fees 7.06. In the event a dispute, claim or litigation arises regarding this Agreement, the prevailing party shall be entitled to reimbursement for reasonable attorneys' fees and actual costs, which may be set by the arbitrators or the court in the same action or in a separate action brought for that purpose, in addition to any other relief which is obtained. 7.07. Neither party shall be considered in default in any of its obligations under this Agreement when a failure of performance shall be due to an uncontrollable force. The term "uncontrollable force" shall mean any cause beyond the control of the party affected, including, but not restricted to, flood, earthquake, storm, fire, Page 18 of 20 lightning, epidemic, war, riot, civil disturbance or disobedience, federal, state, or municipal action, statute, ordinance, or regulation, embargoes of the United States Government or any other government, which by exercise of due diligence such party could not reasonably have been expected to avoid and by exercise of due diligence has been unable to overcome. Either party rendered unable to fulfill any of its obligations under this Agreement by reason of an uncontrollable force shall give written notice within five (5) business days of such fact to the other party and shall exercise due diligence to remove such inability with all reasonable dispatch. 7.08. Except as may otherwise be specifically provided herein, this Agreement may be modified or amended only by a written document executed by both Contractor and the City and approved as to form by the City Attorney. 7.09. The captions used in this Agreement are for convenience only and shall in no way define, limit or describe the scope or intent of the Agreement or any part thereof. Page 19 of 20 7.10. City reserves the right to award similar contracts to multiple contractors to ensure the City has adequate services. IN WITNESS WHEREOF, the parties have executed the Agreement on the dates shown below. City: City of Vernon Contractor: Name: Leonis C. Malburg Title: 616te Date: ATTEST: APPROV AS TO FORM: anuela Giron J H son City Clerk Ci ttorn y Enhanced Turbine Output LLC Nam Title:��, �, i 1►�tvM+ Date: JQ010-7 Name: Title: Date: Page 20 of 20 EXHIBIT A ETO ENHANCED TURBINE OUTPUT LLC (ETO) June 26, 2007 4;D- Mr. Donal O' Callaghan Director Light and Power City of Vernon 4305 Santa Fe Avenue Vernon, CA 90058 Subject: Cost Proposal to Provide Design and Thermodynamic Modeling Services to increase power, lower heat rate and reduce emissions for a Siemens SCC6-5000F Combustion Turbine in the proposed VPP 3x1 Power Plant Project Dear Mr. O'Callaghan As per my discussions with Peter Hervish and a telephone conference call with yourself and others on April 22, 2007 we are attaching a copy of our standard presentation which defines the scope of our studies. The scope of our services will include Providing Design and Thermodynamic Modeling Services aimed to increase power and hopefully to lower heat rate for a Siemens SCC6-5000F Combustion Turbine in the proposed VPP 3x1 Power Plant Project. In parallel to our power and heat rate design and modeling studies outlined above Combustion Science & Engineering, Inc. will characterize the effect of our POWERCOOL system on Turbine Emissions. This will be produced under a separate PO for a not -to -exceed cost of $50,000 also submitted this date. The Scope of Services that ENHANCED TURBINE OUTPUT LLC (ETO) will provide are: 1) Secure software rentals for project to assure that accurate representation of the PowerCool project. 2) Develop a model of baseline plant output and heat rate using the software modeling. 3) Assess various configurations of PowerCoolTM for the 3 x 1 PowerCool VPP project: a. For output b. For heat rate „ ETO LLC 2948 Macomb Street NW Washington DC 20008 USA 202-686-6654 c. For emissions d. For cost 4) Develop an excel spreadsheet representation of output. 5) Develop briefings. 6) Develop memos. T) Visit site. 8) Evaluate providers of services for PowerCoolTm components and construction. 9) Provide budget estimate for final proposed plan to upgrade a Siemens SCC6- 5000F Combustion Turbine. Our proposal is for a not -to -exceed cost estimate of $50,000 for the complete study and integration of the emissions studies by Combustion Science & Engineering, Inc. which will characterize the effect of our POWERCOOL system on Turbine Emissions. This will be produced under a separate PO also submitted this date by them directly. A breakdown of our rates is as follows: Software rental and licensing fees: $4000 to $8,000 per quarter depending on which modules are used. John Hoffman and Soren Horn's rate is $250/hr. If you have any questions or comments, please do not hesitate to call at your convenience. 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O W d L = a c aW Z � 3 o s OR c o 0) n ,r 0 �ODUQ UU U U�Im, auwCl. wwu- zCDco � �V M o t 0 to o U) o N N 1N30213d Ln M so 0 m C O O ii 03 L L a3 0 a a� L !0 i O O O O O O O Ct Ct Ct Ct C 0 0 LO o 10 o uoi o N N r S3Vft WVW3aW3I W3WWnS OMSV3W*Nl HO INMR30Vla3tl InOHIWl O3033N MW 0 0 0 N :.i J J M 0 A O 4w 4� m E O V EXHIBIT B 23 EXHIBIT B Form Change Order CHANGE Contract Number: Change Number: The requirements of the above designated Agreement are changed as follows: City and Enhanced Turbine agree that Enhanced Turbine's compensation shall be adjusted as follows: City and Enhanced Turbine agree that Enhanced Turbine's schedule shall be adjusted as follows: This adjustment covers the entire compensation for the Change set forth above and includes, but is not limited to compensation for all engineering, material, equipment, subcontracts, labor, overhead, profit, changes in scheduling and delays resulting, directly or indirectly, from the Change, as further detailed in the Agreement. Enhanced Turbine Output LLC (ETO) City of Vernon By By Date Date INSTRUCTIONS TO ENHANCED TURBINE Contract Number: Instruction to Enhanced Turbine Number: Date: Specific Instructions to Enhanced Turbine: In accordance with the Terms and Conditions of the Agreement, the City classifies these instructions as: Supplementary instructions, not involving a Change (Should these instructions be, in the opinion of Enhanced Turbine, a "Change", written notice thereof must be given to City within 10 days of the receipt of these instructions. If such written notice is given, Enhanced Turbine shall not commence with the work so ordered until written agreement is reached on the classification of these instructions and on the resulting adjustment in contract compensation, if any.) In the event that City and Enhanced Turbine fail to agree on the classification of these instructions or resulting adjustment in contract compensation, if any, refer to the Changes Section of the Agreement. A Change (Enhanced Turbine shall, within 10 days of the receipt of these instructions, furnish City a statement of its proposal for adjustment in contract compensation occasioned hereby. Enhanced Turbine shall not commence with the work so ordered until written agreement is reached on the resulting adjustment in contract compensation, if any.) In the event that City and Enhanced Turbine fail to agree on the classification of these instructions or resulting adjustments in contract compensation, if any, refer to the Changes Sections of the Agreement. City Representative Date Please acknowledge receipt of this instruction by returning one copy signed in the space provided below. Enhanced Turbine's signature hereon does not indicate his acceptance of the classification assigned hereto by City. Enhanced Turbine's Representative Date c; Donal ©'Callaghan Dolores Jaunzemi Resolution No. 9372 Agreement File No. 07-077 Ex,cfusivefy Industrial RISK MANAGEMENT OFFICE INTER -DEPARTMENT MEMORANDUM DATE: September 18, 2007 TO: Nelly Giron City Clerk FROM: Willard G. Yamaguchi �( Chief Deputy City Attorney/Risk Manager ` RE: Enhanced Turbine Output, LLC Please be advised that the above referenced has provided acceptable insurance coverage. Attached for your retention are original insurance certificates and related policies, declarations and/or endorsements for the above -referenced insured that were issued by: • Admiral Insurance Company (Professional Liability) • State Farm Insurance (Automobile Liability) This concerns Resolution No. 9372, Agreement File No. 07-077. WY/kr cc: Donal O'Callaghan ACORDM CERTIFICATE OF LIABILITY INSURANCE 09/06/200 PRODUCER (301)986-6264 FAX (301)986-6396 B.F. SAUL INSURANCE AGENCY 7501 WISCONSIN AVENUE SUITE 1500 BETHESDA, MD 20814-6522 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLI IES BELOW. INSURERS AFFORDING COVERAGE NAIC # INSURED Enhanced Turbine Output, LLC Attn: John Hoffman 2948 Macomb Street, NW Washington, DC 20008 INSURERA: Admiral Insurance Company INSURERB: INSURERC: INSURERD: INSURER E: THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN 1S SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR AWL TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE DATE' POLICY EXPIRATION DATE IMMIDONn LIMITS GENERAL uABILITY E0600007466-01 09/06/2007 09/06/2009 EACH OCCURRENCE $ 1,000,00 COMMERCIAL GENERAL LIABILITY DAMAGE TO RENTED Pnw $ LAIMSMADE ❑ OCCUR MED EXP (Any one person) $A PERSONAL BADVINJURY $ fessional Llab W GENERAL AGGREGATE $ 1,000,00 GEN- AGGREGATE LIMIT APPLIES PER: PRODUCTS -COMP/OPAGG $ X POLICY jET LOC AUTOMOBILE L ABILITY ANYAUTO COMBINED SINGLE LIMIT (Ea accident) $ BODILY INJURY (Per person) $ ALL OWNED AUTOS SCHEDULED AUTOS BODILY INJURY (Per accident) $ HIRED AUTOS NON -OWNED AUTOS PROPERTY DAMAGE (Per accident) $ GARAGE LIABILITY AUTO ONLY - EA ACCIDENT $ OTHER THAN EA ACC $ ANY AUTO $ AUTO ONLY: AGG EXCESSIUMBRELLALIABILITY EACH OCCURRENCE $ OCCUR CLAIMS MADE AGGREGATE $ $ DEDUCTIBLE $ RETENTION $ WORKERS COMPENSATION AND VUC STATU O R UJ TS EMPLOYERS' LIABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE E.L. EACH ACCIDENT $ E.L. DISEASE- EA EMPLOYE $ OFFICER/MEMBER EXCLUDED? If yes, describe under SPECIAL PROVISIONS below - E.L. DISEASE -POLICY LIMIT 1 $ OTHER DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES / EXCLUSIONS ADDED BY ENDORSEMENT / PECIAL PROVISIONS e certificate holder is named as an Addtional Insured. CFRTIFICATF Nni nFR rAiunFI 1 A nnm SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL City of Vernon 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, Risk Management Department BUT FAILURE TO NAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY 4305 Santa Fe Ave OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REPRESENTATIVE Vernon, CA 90058 Shari Mul drove SM 2-- A- da-,J-- ACORD 26 (2001108) FAX: (323)826-1439 CACORD CORPORATION 1988 09/18/2007 13:19 2028639165 G LYONS STATE FARM PAGE 01 CERTIFICATE OF INSURANCE ;. ..■ This certifies that ® STATE FARM FIRE AND CASUALTY COMPANY, Bloomington, Illinois ❑ STATE FARM GENERAL INSURANCE COMPANY, Bloomington, Illinois ■..■ ❑ STATE FARM FIRE AND CASUALTY COMPANY, Aurora, Ontario ❑ STATE FARM FLORIDA INSURANCE COMPANY, Winter Haven. Florida ❑ STATE FARM LLOYDS, Dallas, Texas insures the following policyholder for the coverages indicated below: Policyholder HOFFMAN, JOHN & 2948 MACOMB ST NK WASHINGTON DC 20008-3315 NC CONATHY, LUCINDA Address of policyholder HOFFMAN, JOHN 6 2948 MACOMB 5T NK WASHINGTON DC 20008-3315 MC CONATHY LUGZNDA Location of operations Description of opere,�io" The polices listed below have been issued to the poiic yl N* er for the Policy periods shown, The Insurance described in these to all the terns, exclusions, and conditions of those policies. The limits of liebil$y shown may have been reduced by any paid claim is subject POLICY NUMBER TYPE OF INSURANCE POLJCY PERIOD Ef betivo Dot* : Dfaa OMITS OF,UABI " (at beginning of polio od) ------------ - - - ----- -- This insurance includes: Comprehensive Business Liability - ---- ----------- - ---------�_ .. . - - - ----- - ❑ Pnxtugs - Completed Operetions ❑ Contractual Liability [� Personal inpary BODILY! PROPER Each Occurrence $ URY AND DAMAGE ❑ Advertising`Injury General Aggregate $ ❑ ❑ Products - Completed $ Operations Aggregate 09-59-5270-0 F EXCESS LIABILITY ® Umbrella ❑ Other POLICY PER W Effective Date Explivilon Date BODILY INJURY AND PROPIE {Combined Single LI M Each Occurrence $ 5, 00 Aggregate $ 5, 0 DAMAGE ) , 000. 00 , 000.00 08/11/07 08/11/08 POLiCY,PERIOD fiffective Dale Dam Part I - Workers Compensation w Statutory Workers' Compensation and Employers Liability Part it - Employers Liability Each Accident $ Disease - Each Employee $ Disease - Policy Limit $ . POLICY NUMBER 310 3899-C16-09 TYPE OF INSURANCE .AUTOMOBILE INS I�OUCY PERIOD Effective Date ; Eq*z1oe Dada 03/16/07 03/16/09 UMITS OF LIABILII (at beginning of polic 250/500/100 LIABILITY clod) THE CERTIFICATE OF INSURANCE IS NOT A CONTRACT OF INSURANCE AND NEITHER AFFIRMATIVELY NOR "83AJIVELY AMEND% M%TiOM OR ALTERS THE COVERAGE APPROVED BY ANY POLICY DESCRIBED HEREIN. Name and Address of Certifixite Holder If any of the descebed policies are HOFFMAN,JOHN a MCCONATHY, Their �, State Farm v ll try LUCNDA 2 9 4 8 MACQMS S'r NNW"d110n rouge 10 the oerliTaft holder 30 2 9 9 8 "ME DC 20009-3315 won. If however, we fail b mat at. to obligation or IiebiNlywill be imposed;on bebm mail a before ch notice. S1810 Farm orb agents or i Sip olive of Audmiaw Reprowda ive OFFICE REP 09/17/07 011W Tilt GREG LYONS TalephonaNwrber 202-863-1400 Agr+nt" s Cods SWM Agaii(Code 9376 AFO Coda F6b9 56"" &.6 Rimed in U.SA Rev. 054W2008 CONFIRMATION OF INSURANCE THE TERMS AND CONDITIONS OF THIS CONFIRMATION OF INSURANCE MAY NOT COMPLY WITH THE SPECIFICATIONS SUBMITTED FOR CONSIDERATION. PLEASE READ THIS CONFIRMATION CAREFULLY AND COMPARE 17 WITH ANY QUOTE AND SVBMISSIOY DOCUMENTS AND REVIEW THE POLICY FORMS FOR THE ACTUAL COVERAGES PROVIDED. IN ACCORDANCE WITH YOUR INSTRUCTIONS, AND IN RELIANCE 1:PON THF. STATEMENTS MADE BY THE RETAIL BROKER IN THE INSI'RED'S APPLICATION/SOBMISSION, WE HAVE OBTAINED INSURANCE AT YOUR REQUEST AS FOLLOWS: 1� TE ISSUED: September 6, 2007 PRODUCER: B.F. Saul Insurance Agency of MD 7501 Wisconsin Avenue -Suite 1500 Bethesda, MD 20814 INSURED: Enhanced Turbine Output, LLC 2948 Macomb Street NW Washington, DC 20008 INSURER: Admiral Insurance Company Non -Admitted PO L I Y lam: E0000007466-01 COVERAGE: Professional Liability _PERILS: L1CY PERIOD: 9/6/20071-0 9/6/2008 TERM; 12 Months 12:01 A.M. STANDARD TIME AT THE LOCATION ADDRESS OF THE NAMED INSURED. THIS INSURANCE BINDER WILL BE TERMINATED AND SUPERSEDED UPON DELIVERY OF THE FORMAL POLICY(IES) ISSUED TO REPLACE IT. PREMIUM: $1,500.00 FEES: TRIA PREMIUM: TOTAL: $1,500.00 TAXES: $30.00 RETAIL AGENT IS RESPONSIBLE FOR THE SURPLUS LINE FILING ON THIS PLACEMENT - PLEASE NOTE THAT THE TAXES NOTED ABOVE ARE AN ESTIMATE AND ARE NOT REFLECTIVE OF HOW YOUR OFFICE WILL HANDLE THE FILINGS. COOPER GAY RISK SERVICES, INC. IS RESPONSIBLE FOR THE SURPLUS LINE FILING ON THIS PLACEMENT - PLEASE NOTE THE SURPLUS LINE TAXES NOTED ABOVE ARE DUE TO OUR OFFICE IN ADDITION TO THE ORIGINAL PREMIUM. POLICY FORM: Claims Made Bests Rating Center - Company Information for Admiral Insurance Company Page 1 of 2 View Ratings: Financial Strenath Issuer Credit Securities Advanced Search Other Web Centers: Select One Admiral Insurance Company IQ Print this pa (a member of W R. Berlday Group) Assigned to companies that r, A.KBest V. 03026 NAIC #: 24866 F8N #: 222236730 have, in our opinion, a superior = Address:1255 Caldwell Road Phone: 856-429-9200 oblbligigatiio meet their ongoing oons to policyholderst:'�,�., Aa- Cherry Hill, NJ 08034-3220 Fax: 856-429-8611 Web: www.admiralins.com --� Best's Ratings Financial Strength Ratings View Definitions Issuer Credit Ratings View Definitions Rating: A+ (Superior) Long -Term: aa- Affiliation Code: g (Group) Outlook: Stable Financial Size Category: XIII ($1.25 Billion to $1.5 Billion) Action: Affirmed Outlook: Stable Date: August 21, 2007 Action: Affirmed Effective Date: August 21, 2007 * Denotes Under Review Bests Ratings Reports and News Visit our NewsRoom for the latest news and press releases for this company and its A.M. Best Group. Best's Company Report- includes Best's Financial Strength Rating and rationale along with comprehensive analytical commentary, detailed business overview and key financial data. i Report Revision Date: 08/27/2007 (represents the latest significant change). Historical Reports are available in Best's Company Report Archive. q Best's Executive Summary Reports (Financial Overview) - available in three versions, these presentation style reports feature balance sheet, income statement, key financial performance tests including profitability, liquidity and reserve analysis. Data Status: 2007 Best's Statement File - P/C, US. Contains data compiled as of 8/31/2007 (duality cross Checked). Single Com anx - five years of financial data specifically on this company. Comparison - side -by -side financial analysis of this company with a peer group of up to five other companies you select. Composite - evaluate this company's financials against a peer group composite. Report displays both the average and total composite of your selected peer group. I:w AMB Credit Report - Business Professional - provides three years of key financial data presented with colorful charts and tables. Each report also features the latest Bests Ratings, Rating Rationale and an excerpt from our Business Review commentary. Data Status: Contains data compiled as of 8/31/2007 (duauty cross checked). Best's Key Rating Guide Presentation Report - includes Best's Financial Strength Rating and financial data as provided in Bests Key Rating Guide products. Data Status: 2006 Financial Data (duality cross checked). Financial and Analytical Products Best's Property/Casualty Center - Premium Data & Reports Best's Key Rating Guide - P/C. US & Canada Best's Statement File - P/C. US Best's Statement File - Global Rests Insurance Reports - P/C. US & Canada Best's State Line - P/C. US http://Www3 . ambest. comlratingsIFullProfil e. asp?B1=0&ANMNum=3 026&Alt5rc=1 &A1tNum=&URATI... 9/11 /2007 Page 1 of 1 Romero, Debbie From: Calzada, Cindy Sent: Thursday, August 23, 2007 8:17 AM To: Romero, Debbie Subject: Resolution 9372 & 9373 faxed them the insurance requirements last week and I followed up with them this week. They advised that they are working on the insurance requirements, but really it doesn't sound like anytime soon. Karina Rueda, Administrative Assistant Risk Management Department City of Vernon Phone: (323) 583-8811 ext. 325 Fax: (323) 826-1439 krueda@ci.vernon.ca.us 8/23/2007 4305 Santa Fe Avenue, Vernon, California 90058 Telephone (323) 583-8811 August 13, 2007 Enhanced Turbine Output LLC Attn: John S. Hoffman, Managing Member 2948 Macomb Street NW Washington D.C. 20008 Re: Professional Services Agreement Dear Mr. Hoffman: In accordance with Section 5 of said agreement, you are to furnish the City with proof of insurance. Please submit your insurance documents to Willard Yamaguchi, Risk Manager, for review and approval. Upon approval of said documentation; this of"fce-w-li forward to you -a-fully-executed- duplicate original agreement. If you have any questions, please contact Willard Yamaguchi at 323/583-8811 ext. 175. ery truly yours, Nelly G:Vro City Clerk NG:dr c: Willard Yamaguchi Donal O'Callaghan Resolution No. 9372 Agreement File No. 07-077 E#fusivefy Industfiaf