Resolution No. 098641
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RESOLUTION NO. 9864
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION OF A
PROFESSIONAL ENGINEERING SERVICES TASK AGREEMENT BY
AND BETWEEN BURNS AND ROE ENTERPRISES, INC. AND THE
CITY OF VERNON
WHEREAS, the City of Vernon (the "City") owns and operates a
municipal electric system which provides the inhabitants of the City
with electric power; and
WHEREAS, the Light & Power Department of the City desires to
retain the services of Burns and Roe Enterprises, Inc. ("Burns") to
provide engineering, design, construction monitoring and related
1consulting services in connection with power and energy projects on a
Itask basis; and
WHEREAS, the City and Burns desire to enter into a master
agreement setting forth the terms and conditions under which Burns
shall perform the services requested by the Light & Power Department
from time -to -time under a task order mechanism for a period of four (4)
1years; and
WHEREAS, the City Council of the City has determined that,
pursuant to the provisions of subsection (a) of Section 2.27 of the
Vernon City Code, it is in the public interest and necessity to enter
into an agreement with Burns to enhance services provided to the Vernon
community.
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
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and correct.
SECTION 2: The City Council of the City of Vernon hereby
approves the Professional Engineering Services Task Agreement with
Burns, a copy of 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 or Deputy City
Clerk is hereby authorized to attest thereto.
SECTION 4: The City Council of the City of Vernon hereby
directs the City Clerk, or her designee, to send one fully executed
Agreement to:
Burns and Roe Enterprises, Inc.
Attn.: Richard A. Edelman, Project Director
800 Kinderkamack Road
Oradell, NJ 07649
SECTION 5: The City Council of the City of Vernon hereby
authorizes the City Administrator, or his designee, to execute the
task orders and any and all documents as shall be necessary or
required to implement and carry out the Agreement and to perform such
other acts and deed,s as may be deemed necessary or advisable to effect
the purposes of Agreement and the transactions therein authorized.
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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 23 rd day of February, 2009.
ATTEST:
MANUELA GIRON,�--ityj-Clerk
Name: Leonis C. Malbura
Title: Mayor / Ha-yer Pce-T-em
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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. 9864, was
duly adopted by the City Council of the City of Vernon at a regular
meeting of the City Council duly held on Monday, February 23, 2009, and
thereafter was duly signed by the Mayor or Mayor Pro-Tem of the City of
Vernon.
(SEAL)
KANUELA GIROt�',--Ciety Clerk
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w.94, n
PROFESSIONAL ENGINEERING SERVICES TASK AGREEMENT
BY AND BETWEEN
BURNS AND ROE ENTERPRISES, INC.,
"T"kTro
THE -CITY OF VERNON
This Professional Engineering Services Task Agreement ("this Agreement"), effective as
of 2/23/2009 ("EffectiveDate"), is madeby andbetween The City of
Vemon("Client"), a California chartered municipafity�with offices located at 4305 S. Santa
Fe Avenue, Vernon, CA 90058 and Bums and Roe Enterprises, Inc. (Debtor in
Possession) ("Bums and Roe"), a New Jersey corporation with offices located at 800
Kinderkamack Road, Oradell, NJ 07649,
WITNESSETH
VvTHEREAS, Client desires to engage Bums and Roe to provide engineering, design,
construction monitoring and related consulting services on a task basis upon the tenns and
conditions hereinafter set forth, and Bums and Roe is prepared to perform such work upon
such terms and conditions;
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, the parties hereto agree as follows:
Article I - Term of Agreement
This Agreement shall be effective as of the date executed, and continue to be in effect for a
period of forty-eight (48) months, unless otherwise earlier terminated.
Article 11 - Scope of Work
Bums and Roe will perform the Services (the "Services") as may be requested by the
Client in connection with power and energy projects, which will be identified in individual
Task Orders to be issued by the Client. The Client will issue to Bums and Roe written
Task Order assignments describing the project, the scope and schedule of services to be
famished and other material considerations, including budgetary limitations, if any.
A sample Task Order to be used by the Client to approve and authorize Bums and Roe to
proceed with the work is contained in Exhibit A.
Article III - Compensation
As compensation for the Services rendered hereunder, Bun -is and Roe will be compensated
as set forth in the individual Task Orders in accordance with the hourly rates set forth in
Exhibit B hereto plus approved out-of-pocket expenses.
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Article IV - Payment
Bums and Roe will submit invoices covering monthly periods for the work performed and
expenses incurred. Payment shall be due within thirty (30) days after receipt of the invoice
in a forinat acceptable to Client. Late payments shall bear interest at the rate of 1 1/2% per
month from said due date. In the event Client takes exception to any invoiced item, Client
shall short -pay the invoices, deducting the excepted amount (s) from the invoice total, and
pay the balance. Client shall promptly notify Bums and Roe, in writing, setting forth the
reasons for the exception.
Article V - Relationship of Parties
Bums and Roe, and anyone it may engage to perform any part of the Work hereunder are
independent contractors, and not employees or agents of Client.
Article VI - Mutual Indemnity
To the fullest extent pern-fitted by law, Bums and Roe agrees to indemnify, defend and
hold harmless Client, its officers, agents and employees, against all third party claims
against Client for personal injury or wrongful death or property damage arising out of any
error, omission or negligent act of Bums and Roe, its officers, a� ents or employees, in the
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execution or perfomiance of this Agreement.
To the fullest extent permitted by law, Client agrees to inden-mify, defend and hold
harmless Bums and Roe, its officers, agents and employees, against all third party claims
against Bums and Roe for personal injury or wrongful death or property damage arising
out of any error, omission or negligent act of the Client, its officers, agents or employees,
in the execution or performance of this Agreement.
Said agreement by each Party to indemnify the other, and its officers, agents and
employees shall continue in full force and effect until the expiration of one (1) year after
Completion of the Work..
Article Vil - Insurance
As a minimum, Bums and Roe will maintain Workers' Compensation Insurance as
required by law and Comprehensive General and Automobile Liability Insurance with
combined bodily injury and property damage limits in accordance with Exhibit C.
Article Vill - Termination
Either Party may terminate this Agreement upon written notification to the other party,
such termination to become effective upon receipt of notification. Client shall pay Bums
and Roe for all Services perforiried up to the effective date of termination, plus all
reasonable costs associated with the orderly close-out of the Services unless Bums and
Roe is ten-ninated for a default under the terms of this Agreement, at which point Client
shall pay Bums and Roe for all Services perforn-ied up to the effective date of termination.
Article IX - Warranty
Bums and Roe warrants that it shall perform its Services in accordance with the same
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degree of skill and care ordinarily used by members of the engineering profession,
practicing under the same conditions, at the same time and locality of the project, and that
the Work will be free from errors or defects. If any of Bums and Roe's Services or Work
do not conforin to such standards, Bums and Roe's sole liability, in respect thereof, shall
be limited to re -performing such nonconfon-ning Services, or correcting the Work at no
additional cost to Client. It is understood that time is of the essence as to the
commencement of re -performing Services or correcting the Work and any such
rework/corrections shall be perfornied in an expedited manner so as not to impact the
project as a whole. Should Bums and Roe delay the re -performance of the Work beyond
what is deemed reasonable by the Client, the Client shall notify Bums and Roe in writing,
If Bums and Roe fails to commence re-perfom-iance within five (5) business days of
receipt of this notice, then Client may subcontract the re-perforined Work at Bums and
Roe's expense.
All claims of nonconforming Sei vices must be specified in writing and received by Bums
and Roe no later than one (1) year after Completion of the applicable assignment.
If any Work is modified by Bums and Roe after Completion, or if any Work is corrected,
repaired, replaced and/or re-perfornied by Bums and Roe during the primary Warranty
Period, the warranty under this Article shall apply to such Work for a period of twelve (12)
months from the date of such modification, correction, repair, replacement or re -
performance. However, in no event shall the total Warranty Period extend beyond twenty
four (24) months after Completion.
THIS WARRANTY IS THE ONLY WARRANTY OFFERED BY BURNS AND ROE,
AND IS EXPRESSLY OFFERED IN LIEU OF ANY OTHER WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY
OTHER WARRANTY EXPRESS OR IMPLIED, AGAINST DEFECTS, LATENT OR
OTHERWISE.
Article X - Changes
Client shall have the right to make changes, within the general scope of this Agreement, in
the Services to be performed or their sequence, schedule, or duration. Changes in the
Services may also result from changes in the project, changes in vendor inforination,
suspension or other delays not caused by Bums and Roe, actions or omissions of
contractors, regulatory authorities, including but not limited to the California Energy
Commission, or other governmental agencies, court decisions, legislation and other events
beyond the control of Bums and Roe as defined in Article XII . If any such change
involves an increase or decrease in the scope of Services under this Agreement or the cost
thereof, or requires that Services previously accomplished be redone, or affects the time
required for the perforniance of any part of the Services, Bums and Roe shall so notify
Client, in writing, within ten (10) business days and if the change is deemed to be a
material change to the Bums and Roe scope of work, Bums and Roe shall be entitled to an
equitable adjustment to the price, schedule of performance or both or to any other affected
provisions of this Agreement. Bun -is and Roe shall not proceed with any change unless
Bums and Roe has clearly defined the full impact(s) of the change to the Client, and the
Client has provided written authorization to proceed.
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Article X11 - Compliance With Laws
Bums and Roe and Client shall comply with the requirements of applicable laws,
regulations and standards in effect as of the Effective Date of this Agreement. Changes to
these requirements after the Effective Date of this Agreement may be the basis for
modifications to Client's responsibilities, or to Bums and Roe's scope of services, time of
performance or compensation. Bums and Roe must comply with all CEC / CBO
requirements as part of the base scope of services.
Article X11 - Events Beyond the Control of Burns and Roe
Bums and Roe shall not be responsible for any delay or failure in performance of the
Services or for any delay or deficiency in any project for which it provides Services, if and
to the extent that such delay, failure or deficiency is beyond the control of Bums and Roe
and which Bums and Roe could not have reasonably foreseen and caused by such events
as: acts of God, fire, flood, explosion, strikes, sabotage acts of the public enemy, civil
insurrection, riot, acts of terrorism, court orders, injunctions, changes in applicable laws,
acts of any nation, , contractors, subcontractors, suppliers, agents of Client and labor
disputes, work stoppages or slowdowns, freight embargoes, unusually severe weather,
equipment failure, or any other cause or event beyond the control of Bums and Roe.
Article X111 - Cost Estimates
Bums and Roe has no control over the cost of labor, materials or equipment or any
contractor's method of detern-fining prices or other competitive bidding or market
conditions. Any of Bums and Roe's cost estimates prepared under this Agreement for the
construction, equipment, materials or supplies provided by others, are made solely on the
basis of Bums and Roe's experience and information furnished to it and represent its best
judgment as a consulting professional familiar with the construction industry, but Bums
and Roe cannot and does not guarantee that actual costs will not vary from Bums and
Roe's cost estimate.
Article XIV - Ownership of Documents
All technical materials, including documents, drawings, prints, calculations, models,
electronic data, etc., prepared specifically for Client in connection with the Services of
Bums and Roe hereunder shall become the property of Client and shall be turned over,
upon written request, to Client upon completion of the Services and final payment
therefore.
In the event drawings and specifications are prepared in Computerized Assisted Drafting
and Design (CADD) form for Client due to the potential that inforn-iation set forth on
computer disks and/or magnetic tapes can be modified by Client, unintentionally or
otherwise, Bums and Roe reserves the right to remove all indicia of its ownership and/or
involvement from each electronic display. For documentation purposes, the original
CADD disk will be retained by Bums and Roe. Bums and Roe will also retain one
reproducible copy of all materials as instruments of service and shall have the unrestricted
right to use such documents. Client agrees that all documents furnished to it by Bums and
Roe will be used solely in connection with the particular purpose for which such
documents were prepared or furnished. Client assumes full responsibility for any
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unauthorized use of any such materials and hereby indemnifies and holds Bums and Roe
ham-iless from all claims, damages, losses or expenses, including without limitation,
counsel fees and expenses and all costs of investigating and defending against claims
resulting therefrom. All other materials prepared or used by Bums and Roe in connection
with the Services generally, but not specifically prepared for Client, shall remain the sole
property of Bums and Roe and shall, if deemed appropriate by Bums and Roe, be
designated as proprietary to Bums and Roe.
Article XV - Client's Responsibilities
Client shall throughout the performance of this Agreement cooperate with Bums and Roe
Client shall perform its own responsibilities, obligations and services, including:
(i) making timely payments; (h) providing Bums and Roe with access to jobsites,
necessary documents and drawings; (iii) providing timely review and approval of Bums
and Roe's submissions, so as not to delay Bums and Roe's perforinance of its obligations
under this Agreement,
Article XVI - Information Furnished by Client
Bums and Roe shall have the right to rely upon the accuracy, currentness and sufficiency
of all inforination, data, materials and services furnished by Client or any of its contractors,
vendors, consultants, employees or agents.
Article XVII - Construction Management / Field Consulting Engineering Services
In the event construction management services or field consulting engineering assignments
are included as part of Bums and Roe's scope of Services, it is expressly understood that
Bums and Roe's sole responsibility, acting as agent of Client in the performance of the
construction management or field consulting assignment responsibilities hereunder in
connection with the work of construction contractors, will be to evaluate, for the sole
benefit of Client, the construction contractors' work to deterinine technical compliance
with the contract documents. Accordingly, Bums and Roe will not be responsible for the
construction contractors' means, methods, techniques, sequences or procedures of
construction, or their safety precautions and programs nor for any failure to perform the
work in full accordance with their contract documents. Furthermore, any inspection,
review, supervision, direction, observation or comment made by Bums and Roe shall be as
re -presentative of and on sole behalf of Client.
Article XVIII - Entire Agreement
This Agreement, including all its Attachments, constitutes the entire Agreement between
the Parties. It supersedes all prior contemporaneous corim-lunications, representations or
agreements, whether oral or written, with respect to the subject matter hereof and has been
induced by no representation, promises or agreements other than those expressed herein.
Client is in no way relying upon any representations beyond those made in this Agreement
In the event Client authorizes the Services by issuance of a purchase order, any pre-printed
terms contained therein shall be void and of no effect.
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Article XIX - No Third Party Beneficiary
This Agreement and all rights hereunder are intended for the sole benefit of the parties
hereto and shall not imply or create any rights on the part of, or obligations to, any other
entity not a party to this Agreement.
Article XX - Limitation of Liability
Bums and Roe, including any of its employees, agents, consultants contractors or vendors,
shall not be liable under this Agreement to Client, any of its agents, contractors, vendors or
third parties, whether in contract, tort or otherwise, for the payment of any special,
indirect, consequential or similar damages. Notwithstanding anything contained in this
Agreement to the contrary, Burns and Roe's aggregate liability for any and all claims
arising out of this Agreement, or out of any goods or services furnished under this
Agreement, whether based in contract, negligence, strict liability, agency, warranty,
trespass, indemnity or any other theory of liability including, pollution, environmental
damage, occupational disease and toxic torts, shall be limited to one hundred percent
(100%) of the total contract value, as amended.
Unless specified to the contrary within this Agreement, all liability of Bums and Roe to
Client, arising out of or connected with the subject matter of this Agreement, shall
terminate and cease no later than the expiration of the warranties provided by Bums and
Roe.
Article XXI - Dispute Resolution
In the event a dispute arises between Client and Bun -is and Roe regarding any matter
hereunder, each Party agrees to refer the matter to a senior executive of its respective
corporation. Said executives shall meet, and attempt to negotiate a good faith resolution of
the dispute. Should the executives be unable to obtain a resolution within thirty (30) days
after commencement of negotiation, either Party may then, by notice to the other, submit
the dispute to JAMS for resolution under its rules then in effect.
In no event shall the arbitrator(s) have jurisdiction to consider (i) claims for consequential
damages or damages beyond the limitations of liability contained in this Agreement or (ii)
any challenge to the limitation of liability contained in this Agreement. The decision of
the arbitrator(s) shall be final and binding upon the parties without the right of appeal to
the courts.
The prevailing Party, shall be entitled to reimbursement of its expenses, including
reasonable attorney's fees. Pending final resolution of any dispute, Client and Bums and
Roe shall continue to fulfill their respective obligations hereunder.
Article XXII - Assignment
This Agreement may not be assigned or otherwise transferred by either Party in whole or
in part without the express prior written consent of the other Party, which consent shall not
unreasonably be withheld. This consent requirement shall not apply in the event either
Party shall change its corporate name or merge with another corporation. This Agreement
shall benefit and be binding upon the successors and assigns of the Parties hereto.
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Article XXIII - Governing Law
This Agreement shall be governed by, and construed in, accordance with the laws of the
State of California, without regard to principles of conflicts of laws. Any lawsuit which
may arise with respect to this Agreement shall be brought only in a court of competent
jurisdiction located within Los Angeles County in the State of California.
Article XXIV - Amendments and Modifications
No amendments or modifications of this Agreement shall be valid unless evidenced in
writing and signed by duly authorized representatives of both Parties.
Article XXV - Notices
Any notice or other communication, including change of address, or of the person to be
notified, given under this Agreement to any Party shall be in writing and mailed by
certified or registered mail, return receipt requested, to the address and to the attention of
the representatives listed below:
Burns and Roe: Client:
Name: —Mr. Richard A. Edelman
Title: Project Director
Address: 800 Kinderkamack Road
Oradell, NJ 07649
Name: Mr. Donal O'Callaghan
Title: Director of Light & Power
Address: 4305 S. Sante Fe Street
Telephone No.: 201-986 4300 Telephone No.:
Facsimile No. 201-986 4193 Facsimile No.
e-mail Address redelman@roe.com e-mail Address:
Vemon, CA 90058
323-826-3611
323-587-7596
docallaghanp.ei.vemon.ca.us
Such notices shall be effective on the day received at the addresses specified above. Either
Pal ty by like notice, may designate in writing, another address or office to which notices
shall be given pursuant to this Agreement.
Article XXVI - No Waiver
The failure of either Party to insist upon strict adherence to any term of this Agreement on
any occasion shall not be construed as a waiver or deprive that Party of the right to insist
upon strict adherence to that term. or any other term of this Agreement. Any waiver must
be in writing and signed by the Party making the waiver.
Article XXVII - Survival and Severability
All express representations, warranties, indemnifications, and limits of liability included in
this Agreement will survive its completion or ten-nination for any reason.
If any provision of this Agreement shall be held invalid, illegal or unenforceable by a court
of competent jurisdiction, the validity, legality and enforceability of the remaining
provisions shall in no way be affected or impaired thereby. The remaining provisions shall
remain in full force and effect, as if the unenforceable provision had been deleted.
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Article XXVIII - Definitions
"Completion" is defined as the date on which Bums and Roe's Services are complete with
no outstanding issues or deliverables.
(Continued on Page 9 of 9)
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The parties acknowledge and accept the terms and conditions of this Agreement as
evidenced by the following signatures of their duly and authorized representatives. It is the
intent of the parties that this Agreement shall become operative when executed.
CLIENT:
City of Vernon
Leonis C. Malburg, Mayor
APPROVED AS TO FORM:
By:
Jeff A. Harrison, City Attorney
Date:
Attest:
**afty Giron, City Clerk
Manuela.
BURNS AND ROE ENTERPRISES, INC.:
Debtor in Possesssion Attest:
41*
By: 'v " , By
Albert M. Ferrer
Vice President, Power Consulting
Date:
Richard A. Edelman
Project Director
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EXHIBIT A
EXHIBIT A
TASK ORDER NO.
TO PROFESSIONAL ENGINEERING SERVICES TASK AGREEMENT
DATED BETWEEN.
BURNS AND ROE ENTERPRISES, INC. AND THE CITY OF VERNON, CA.
Date of Task Order:
Scope of Task Order:
Bums and Roe Estimated Man-hours:
Bums and Roe Estimated Cost:
Bums and Roe Schedule:
Authorized by:
Signature
Name
Title
Burns and Roe Enterprises, Inc.
Accepted by:
Signature
OMIT$ -
Title
Exhibit B Page I of 1 12/18/2008
EXHIBIT B
EXHIBIT B
BURNS AND ROE ENTERPRISES, INC.
2008 HOURLY RATES
Hourly Rate
Division Manager / Principal 191.00
Dept. Manager/Senior Prej. Mgr. / Chief Engr / Senior Consultant 164.00
Project Manager / Assistant Chief Engineer 160.00
Project Engineer/Senior Principal Engineer 154.00
Startup Manager (Field) (1) 11315. 0 0
Construction Manager (Field) (1) 135.00
Senior Site Engineer (Field) (1) 124.00
Site Engineer/Constr-uctlon Supv. (Field) (1) 112.00
Engineering Specialist — Geotechnical, Stress Analysis
132.00
Principal Discipline Engineer 11
142.00
Principal Discipline Engineer 1
126.00
Senior Discipline Engineer 11
115.00
Senior Discipline Engineer 1
109.00
Discipline Engineer
97.00
Manager, Planning and Scheduling
141.00
Cost Estimator
115.00
Procurement/Buyer
126.00
Senior Planning & Scheduling
130.00
Planning & Scheduling
109.00
Project Controls
97.00
Senior Financial Analyst
112.00
Plant Design Supervisor
115.00
CADD Designer
109.00
CADD Drafter
75.00
Administrative Assistant
62.00
Secretary / Word Processing
52.00
Notes: 1. Field office rates apply for assignments of longer than 3 months.
Expenses
• A 10% fee will be added to Subcontractor costs to cover handling and administration.
• A surcharge of $2.25/hour of engineering and design labor will be applied as a
Computer Aided Engineering (CAE) charge.
• A surcharge of $2.15/hour for all home office labor will be applied for reproductions
and communi cations.
• Rates subject to annual adjustment and escalation.
Exhibit B Page I of 1 12/18/2008
EXHIBIT C
EXHIBIT C
Professional Service Amement - Insurance Requirements
Bums and Roe 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.
The insurance coverage as listed herein, shall be properly endorsed to include those
contractual obligations which may be identified further within this Agreement and, with
the exception of Workers' Compensation and Professional Liability, shall be endorsed to
provide City and Client all the rights and privileges of an additional insured.
Bums and Roe shall cause its insurers to issue Certificates of Insurance evidencing that
the coverages and policy endorsements required under this Agreement, are maintained in
force.
Bums and Roe shall ensure its Subcontractor (s), if any, maintain those insurance
requirements as specified in this Exhibit C and such insurance shall be endorsed to
provide City and Client all the rights and privileges of an additional insured. Bums and
Roe and its Subcontractor (s), if any, shall maintain in effect the following minimum
insurance coverages:
A. Workers' Compensation within the statutory limits and, if necessary,
Longshoremen and Harbor Workers and Jones Act, including occupational illness
or disease coverage in accordance with the laws of the nation, state, territory, or
province exercising jurisdiction over the Employees. Workers' Compensation
and Employer's Liability Insurance shall have a minimum limit of $ 1,000,000 per
occurrence.
B. 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 limit of $1,000,000 per occurrence and
$2,000,000 in the aggregate.
C. 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.
D. Professional Liability Insurance with limits of $10,000,000. Such evidence of
insurance can either be through the primary insurance coverages or through an
excess liability policy. The policy can be written on a claims made basis provided
any excess Professional Liability insurance policy conditions are as broad as those
required in the primary insurance.
- End of Exhibit C -
Exhibit C Page I of 1 12/18/2008
E ri
I
4305 Santa Fe Avenue, Vernon, California 90058
Telephone (323) 583-8811
March 4, 2009
Burns and Roe Enterprises, Inc.
Attn: Richard A. Edelman, Project Director
800 Kinderkamack Road
Oradell, NJ 07649
Re: Services Task Agreement
Dear Mr. Edelman:
The insurance requirements have been met. Transmitted herewith is a
fully executed agreement, as referenced above, approved by City
Council on February 23, 2009, through Resolution No. 9864.
If you have any questions regarding this matter, please call Mr. Donal
O'Callaghan at 323/583-8811 ext. 834.
Very truly yours,
Ne -yv Gil n
City Clerk
NG: dj
c: D. O'Callaghan
Purchasing Department
Resolution No. 9864
Agreement File No. 09-032
Eo,-cfusivefy industriaf
PROFESSIONAL ENGINEERING SERVICES TASK AGREEMENT
BY AND BETWEEN
BURNS AND ROE ENTERPRISES, INC.,
AND
THE CITY OF VERNON
This Professional Engineering Services Task Agreement ("this Agreement"), effective as
of 2/23/2009� ("Effective Date"), is madeby andbetween The City of
Vemon("Client"), a California chartered municipality_with offices located at 4305 S. Santa
Fe Avenue, Vernon, CA 90058 and Bums and Roe Enterprises, Inc. (Debtor in
Possession) ("Bums and Roe"), a New Jersey corporation with offices located at 800
Kinderkamack Road, Oradell, NJ 07649.
WITNESSETH
WHEREAS, Client desires to engage Bums and Roe to provide engineering, design,
construction monitoring and related consulting services on a task basis upon the ternis and
conditions hereinafter set forth, and Bums and Roe is prepared to perfon-n such work upon
such terms and conditions;
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, the parties hereto agree as follows:
Article I - Term of Agreement
This Agreement shall be effective as of the date executed, and continue to be in effect for a
period of forty-eight (48) months, unless otherwise earlier terminated.
Article 11 - Scope of Work
Bums and Roe will perform the Services (the "Services") as may be requested by the
Client in connection with power and energy projects, which will be identified in individual
Task Orders to be issued by the Client. The Client will issue to Bums and Roe written
Task Order assignments describing the project, the scope and schedule of services to be
famished and other material considerations, including budgetary limitations, if any.
A sample Task Order to be used by the Client to approve and authorize Bums and Roe to
proceed with the work is contained in Exhibit A.
Article III - Compensation
As compensation for the Services rendered hereunder, Bums and Roe will be compensated
as set forth in the individual Task Orders in accordance with the hourly rates set forth in
Exhibit B hereto plus approved out-of-pocket expenses.
Professional Service Agreement Page 1 of 9 12/18/2008
Burns and Roe Enterprises, Inc.
Article IV - Payment
Bums and Roe will submit invoices covering monthly periods for the work performed and
expenses incurred. Payment shall be due within thirty (30) days after receipt of the invoice
in a format acceptable to Client. Late payments shall bear interest at the rate of 1 1/2% per
month from said due date. In the event Client takes exception to any invoiced item, Client
shall short -pay the invoices, deducting the excepted amount (s) from the invoice total, and
pay the balance. Client shall promptly notify Bums and Roe, in writing, setting forth the
reasons for the excep�tion.
Article V - Relationship of Parties
Bums and Roe, and anyone it may engage to perform any part of the Work hereunder are
independent contractors, and not employees or agents of Client.
Article VI - Mutual Indemnity
To the fullest extent permitted by law, Bums and Roe agrees to indemnify, defend and
hold harmless Client,,its officers, agents and employees, against all third party claims
against Client for personal injury or wrongful death or property damage arising out of any
error, omission or negligent act of Bums and Roe, its officers, agents or employees, in the
execution or performance of this Agreement.
To the fullest extent permitted by law, Client agrees to indemnify, defend and hold
harmless Bums and Roe, its officers, agents and employees, against all third party claims
against Bums and Roe for personal injury or wrongful death or property damage arising
out of any error, omission or negligent act of the Client, its officers, agents or employees,
in the execution or performance of this Agreement.
Said agreement by each Party to indemnify the other, and its officers, agents and
employees shall continue in full force and effect until the expiration of one (1) year after
Completion of the Work..
Article Vil - Insurance
As a minimum, Bums and Roe will maintain Workers' Compensation Insurance as
required by law and Comprehensive General and Automobile Liability Insurance with
combined bodily injury and property damage limits in accordance with Exhibit C.
Article VIII - Termination
Either Party may terminate this Agreement upon written notification to the other party,
such termination to become effective upon receipt of notification. Client shall pay Bums
and Roe for all Services performed up to the effective date of termination, plus all
reasonable costs associated with the orderly close-out of the Services unless Bums and
Roe is tenninated for a default under the terms of this Agreement, at which point Client
shall pay Bums and Roe for all Services perfom-ied up to the effective date of termination.
Article IX - Warranty
Bums and Roe warrants that it shall perform its Services in accordance with the same
Professional Service Agreement Page 2 of 9 12/18/2008
Burns and Roe Enterprises, Inc.
degree of skill and care ordinarily used by members of the engineering profession,
practicing under the same conditions, at the same time and locality of the project, and that
the Work will be free from errors or defects. If any of Bums and Roe's Services or Work
do not conform to such standards, Bums and Roe's sole liability, in respect thereof, shall
be limited to re -performing such nonconforming Services, or correcting the Work at no
additional cost to Client. It is understood that time is of the essence as to the
commencement of re -performing Services or correcting the Work and any such
rework/corrections shall be perforn-led in an expedited manner so as not to impact the
project as a whole. Should Bums and Roe delay the re -performance of the Work beyond
what is deemed reasonable by the Client, the Client shall notify Bums and Roe in writing,
If Bums and Roe fails to corrimence re-perforniance within five (5) business days of
receipt of this notice, then Client may subcontract the re -performed Work at Bums and
Roe's expense.
All claims of nonconforming Services must be specified in writing and received by Bums
and Roe no later than one (1) year after Completion of the applicable assignment.
If any Work is modified by Bums and Roe after Completion, or if any Work is corrected,
repaired, replaced and/or re -performed by Bums and Roe during the primary Warranty
Period, the warranty under this Article shall apply to such Work for a period of twelve (12)
months from the date of such modification, correction, repair, replacement or re -
performance. However, in no event shall the total Warranty Period extend beyond twenty
four (24) months after Completion.
THIS WARRANTY IS THE ONLY WARRANTY OFFERED BY BURNS AND ROE,
AND IS EXPRESSLY OFFERED IN LIEU OF ANY OTHER WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY
OTHER WARRANTY EXPRESS OR IMPLIED, AGAINST DEFECTS, LATENT OR
OTHERWISE.
Article X - Changes
Client shall have the right to make changes, within the general scope of this Agreement, in
the Services to be performed or their sequence, schedule, or duration. Changes in the
Services may also result from changes in the project, ehanges in vendor inforination,
suspension or other delays not caused by Bums and Roe, actions or omissions of
contractors, regulatory authorities, including but not limited to the California Energy
Commission, or other governmental agencies, court decisions, legislation and other events
beyond the control of Bums and Roe as defined in Article XII . If any such change
involves an increase or decrease in the scope of Services under this Agreement or the cost
thereof, or requires that Services previously accomplished be redone, or affects the time
required for the performance of any part of the Services, Bums and Roe shall so notify
Client, in writing, within ten (10) business days and if the change is deemed to be a
material change to the Bums and Roe scope of work, Bums and Roe shall be entitled to an
equitable adjustment to the price, schedule of performance or both or to any other affected
provisions of this Agreement. Bun -is and Roe shall not proceed with any change unless
Bums and Roe has clearly defined the full impact(s) of the change to the Client, and the
Client has provided written authorization to proceed.
Professional Service Agreement Page 3 of 9 12/18/2008
Burns and Roe Enterprises, Inc.
Article X1 - Compliance With Laws
Bums and Roe and Client shall comply with the requirements of applicable laws,
regulations and standards in effect as of the Effective Date of this Agreement. Changes to
these requirements after the Effective Date of this Agreement may be the basis for
modifications to Client's responsibilities, or to Bums and Roe's scope of services, time of
perforniance or compensation. Bums and Roe must comply with all CEC / CBO
requirements as part of the base scope of services.
Article X11 - Events Beyond the Control of Burns and Roe
Bums and Roe shall not be responsible for any delay or failure in performance of the
Services or for any delay or deficiency in any project for which it provides Services, if and
to the extent that such delay, failure or deficiency is beyond the control of Bums and Roe
and which Bums and Roe could not have reasonably foreseen and caused by such events
as: acts of God, fire, flood, explosion, strikes, sabotage acts of the public enemy, civil
insurrection, riot, acts of terrorism, court orders, injunctions, changes in applicable laws,
acts of any nation, , contractors, subcontractors, suppliers, agents of Client and labor
disputes, work stoppages or slowdowns, freight embargoes, unusually severe weather,
equipment failure, or any other cause or event beyond the control of Bums and Roe.
Article Xill - Cost Estimates
Bums and Roe has no control over the cost of labor, materials or equipment or any
contractor's method of determining prices or other competitive bidding or market
conditions. Any of Bums and Roe's cost estimates prepared under this Agreement for the
construction, equipment, materials or supplies provided by others, are made solely on the
basis of Bums and Roe's experience and information furnished to it and represent its best
judgment as a consulting professional familiar with the construction industry, but Bums
and Roe cannot and does not guarantee that actual costs will not vary from Bums and
Roe's cost estimate.
Article XIV - Ownership of Documents
All technical materials, including documents, drawings, prints, calculations, models,
electronic data, etc., prepared specifically for Client in conriection with the Services of
Bums and Roe hereunder shall become the property of Client and shall be turned over,
upon written request, to Client upon completion of the Services and final payment
therefore.
In the event drawings and specifications are prepared in Computerized Assisted Drafting
and Design (CADD) forin for Client due to the potential that inforn-iation set forth on
computer disks and/or magnetic tapes can be modified by Client, unintentionally or
otherwise, Bums and Roe reserves the right to remove all indicia of its ownership and/or
involvement from each electronic display. For documentation purposes, the original
CADD disk will be retained by Bums and Roe. Bums and Roe will also retain one
reproducible copy of all materials as instruments of service and shall have the unrestricted
right to use such documents. Client agrees that all documents furnished to it by Bums and
Roe will be used solely in connection with the particular purpose for which such
documents were prepared or furnished. Client assumes full responsibility for any
Professional Service Agreement Page 4 of 9 12/18/2008
Burns and Roe Enterprises, Inc.
unauthorized use of any such materials and hereby indemnifies and holds Bums and Roe
harinless from all claims, damages, losses or expenses, including without limitation,
counsel fees and expenses and all costs of investigating and defending against claims
resulting therefrom. All other materials prepared or used by Bums and Roe in connection
with the Services generally, but not specifically prepared for Client, shall remain the sole
property of Bums and Roe and shall, if deemed appropriate by Bums and Roe, be
designated as proprietary to Bums and Roe.
Article XV - Client's Responsibilities
Client shall throughout the perfomiance of this Agreement cooperate with Bums and Roe.
Client shall perform its own responsibilities, obligations and services, including:
(i) making timely payments; (ii) providing Bums and Roe with access to jobsites,
necessary documents and drawings; (iii) providing timely review and approval of Bums
and Roe's submissions, so as not to delay Bums and Roe's perforn'lance of its obligations
under this Agreement.
Article XVI - Information Furnished by Client
Bums and Roe shall have the right to rely upon the accuracy, currentness and sufficiency
of all information, data, materials and services furnished by Client or any of its contractors,
vendors, consultants, employees or agents.
Article XVII - Construction Management / Field Consulting Engineering Services
In the event construction management services or field consulting engineering assignments
are included as part of Bums and Roe's scope of Services, it is expressly understood that
Bums and Roe's sole responsibility, acting as agent of Client in the performance of the
construction management or field consulting assignment responsibilities hereunder in
connection with the work of construction contractors, will be to evaluate, for the sole
benefit of Client, the construction contractors' work to determine technical compliance
with the contract documents. Accordingly, Bums and Roe will not be responsible for the
construction contractors' means, methods, techniques, sequences or procedures of
construction, or their safety precautions and programs nor for any failure to perform the
work in full accordance with their contract documents. Furthermore, any inspection,
review, supervision, direction, observation or comment made by Bums and Roe shall be as
representative of and on sole behalf of Client.
Article XVIII - Entire Agreement
This Agreement, including all its Attachments, constitutes the entire Agreement between
the Parties. It supersedes all prior contemporaneous communications, representations or
agreements, whether oral or written, with respect to the subject matter hereof and has been
induced by no representation, promises, or agreements other than those expressed herein.
Client is in no way relying upon any representations beyond those made in this Agreement.
In the event Client authorizes the Services by issuance of a purchase order, any pre-printed
terms contained therein shall be void and of no effect.
Professional Service Agreement Page 5 of 9 12/18/2008
Burns and Roe Enterprises, Inc.
Article XIX - No Third Party Beneficiary
This Agreement and all rights hereunder are intended for the sole benefit of the parties
hereto and shall not imply or create any rights on the part of, or obligations to, any other
entity not a party to this Agreement.
Article XX - Limitation of Liability
Bums and Roe, including any of its employees, agents, consultants contractors or vendors,
shall not be liable under this Agreement to Client, any of its agents, contractors, vendors or
third parties, whether in contract, tort or otherwise, for the payment of any special,
indirect, consequential or similar damages. Notwithstanding anything contained in this
Agreement to the contrary, Bums and Roe's aggregate liability for any and all claims
arising out of this Agreement, or out of any goods or services famished under this
Agreement, whether based in contract, negligence, strict liability, agency, warranty,
trespass, indemnity or any other theory of liability including, pollution, environmental
damage, occupational disease and toxic torts, shall be limited to one hundred percent
(100%) of the total contract value, as amended.
Unless specified to the contrary within this Agreement, all liability of Bums and Roe to
Client, arising out of or connected with the subject matter of this Agreement, shall
terminate and, cease no later than the expiration of the warranties provided by Bun -is and
Roe.
Article XXII - Dispute Resolution
In the event a dispute arises between Client and Bums and Roe regarding any matter
hereunder, each Party agrees to refer the matter to a senior executive of its respective
corporation. Said executives shall meet, and attempt to negotiate a good faith resolution of
the dispute. Should the executives be unable to obtain a resolution within thirty (30) days
after commencement of negotiation, either Party may then, by notice to the other, submit
the dispute to JAMS for resolution under its rules then in effect.
In no event shall the arbitrator(s) have jurisdiction to consider (i) claims for consequential
damages or damages beyond the limitations of liability contained in this Agreement or (ii)
any challenge to the limitation of liability contained in this Agreement. The decision of
the arbitrator(s) shall be final and binding upon the parties without the right of appeal to
the courts.
The prevailing Party, shall be entitled to reimbursement of its expenses, including
reasonable attorney's fees. Pending final resolution of any dispute, Client and Bums and
Roe shall continue to fulfill their respective obligations hereunder.
Article XXII - Assignment
This Agreement may not be assigned or otherwise transferred by either Party in whole or
in part without the express prior written consent of the other Party, which consent shall not
unreasonably be withheld. This consent requirement shall not apply in the event either
Party shall change its corporate name or merge with another corporation. This Agreement
shall benefit and be binding upon the successors and assigns of the Par -ties hereto.
Professional Service Agreement Page 6 of 9 12/18/2008
Burns and Roe Enterprises, Inc.
Article XXIII - Governing Law
This Agreement shall be governed by, and construed in accordance with the laws of the
State of California, without regard to principles of conflicts of laws. Any lawsuit which
may arise with respect to this Agreement shall be brought only in a court of competent
jurisdiction located within Los Angeles County in the State of California.
Article XXIV - Amendments and Modifications
No amendments or modifications of this Agreement shall be valid unless evidenced in
writing and signed by duly authorized representatives of both Parties.
Article XXV - Notices
Any notice or other communication, including change of address, or of the person to be
notified, given under this Agreement to any Party shall be in writing and mailed by
certified or registered mail, return receipt requested, to the address and to the attention of
the representatives listed below:
Burns and Roe: Client:
Name: —Mr. Richard A. Edelman
Title: Project Director
Address: 800 Kinderkamack Road
Oradell, NJ 07649
Name: Mr. Donal O'Callaghan
Title: Director of Light & Power
Address: 4305 S. Sante Fe Street
Telephone No.: 201-986 4300 Telephone No.:
Facsimile No. 201-986 4193 Facsimile No.
e-mail Address redelmanproe.com e-mail Address
Vernon, CA 90058
323-826-3611
323-587-7596
docallaghanp,ci.vemon.ca.us
Such notices shall be effective on the day received at the addresses specified above. Either
Party by like notice, may designate in writing, another address or office to which notices
shall be given pursuant to this Agreement.
Article XXVI - No Waiver
The failure of either Party to insist upon strict adherence to any term of this Agreement on
any occasion shall not be construed as a waiver or deprive that Party of the right to insist
upon strict adherence to that term or any other term of this Agreement. Any waiver must
be in writing and signed by the Party making the waiver.
Article XXVII - Survival and Severability
All express representations, warranties, indemnifications, and limits of liability included in
this Agreement will survive its completion or tem-iination for any reason.
If any provision of this Agreement shall be held invalid, illegal or unenforceable by a court
of competent jurisdiction, the validity, legality and enforceability of the remaining
provisions shall in no way be affected or impaired thereby. The remaining provisions shall
remain in full force and effect, as if the unenforceable provision had been deleted.
Professional Service Agreement Page 7 of 9 12/18/2008
Burns and Roe Enterprises, Inc.
Article XXVIII - Definitions
"Completion" is defined as the date on which Bums and Roe's Services are complete with
no outstanding issues or deliverables.
(Continued on Page 9 of 9)
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Burns and Roe Enterprises, Inc.
The parties acknowledge and accept the terms and conditions of this Agreement as
evidenced by the following signatures of their duly and authorized representatives. It is the
intent of the parties that this Agreement shall become operative when executed.
CLIENT:
City of Vernon
U�ois C. Malburg, **yor
APPROVED AS TO FORM:
By: _
Jeff A.
Date: 21lY10
City Attorney
Attest:
tway Giron, City Clerk
Manuela.
BURNS AND ROE ENTERPRISES, INC.:
Debtor in Possesssion Attest:
By: /7z� By:
Albert M. Ferrer
Vice President, Power Consulting
Date: _ZZ, 00��
Richard A. Edelman
Project Director
M--
Professional Service Agreement Page 9 of 9 12/18/2008
Burns and Roe Enterprises, Inc.
1061-201
EXHIBIT A'
TASK ORDER NO.
TO PROFESSIONAL ENGINEERING SERVICES TASK AGREEMENT
DATED BETWEEN.
BURNS AND ROE ENTERPRISES, INC. AND THE CITY OF VERNON, CA.
Date of Task Order:
Scope of Task Order:
Bums and Roe Estimated Man-hours:
Bums and Roe Estimated Cost:
Bums and Roe Schedule:
Authorized by:
Signature
Name
Title
Burns and Roe Enterprises, Inc.
Accepted by:
Signature
Name
Title
Exhibit B Page I of 1 12/18/2008
EXHIBIT B
EXHIBIT B
BURNS AND ROE ENTERPRISES, INC.
2008 HOURLY RATES
Hourly Rate
Division Manager / Principal 191.00
Dept. Manager/Senior Proj. Mgr. / Chief Engr / Senior Consultant 164.00
Project Manager / Assistant Chief Engineer 160.00
Project Engineer/Senior Principal Engineer 154.00
Startup Manager (Field) (1) 135.00
Construction Manager (Field) (1) 135.00
Senior Site Engineer (Field) (1) 124.00
Site Engineer/Construction Supv. (Field) (1) 112.00
Engineering Specialist — Geotechnical, Stress Analysis
132.00
Principal Discipline Engineer 11
142.00
Principal Discipline Engineer 1
126.00
Senior Discipline Engineer 11
115.00
Senior Discipline Engineer 1
109.00
Discipline Engineer
97.00
Manager, Planning and Scheduling
141.00
Cost Estimator
115.00
Procurement/Buyer
126.00
Senior Planning & Scheduling
130.00
Planning & Scheduling
109.00
Project Controls
97.00
Senior Financial Analyst
112.00
Plant Design Supervisor
115.00
CADD Designer
109.00
CADD Drafter
75.00
Administrative Assistant
62.00
Secretary / Word Processing
52.00
Notes: 1. Field office rates apply for assignments of longer than 3 months.
Expenses
• A 10% fee will be added to Subcontractor costs to cover handling and administration.
• A surcharge of $2.25/hour of engineering and design labor will be applied as a
Computer Aided Engineering (CAE) charge.
• A surcharge of $2.15/hour for all home office labor will be applied for reproductions
and comiriuni cations.
• Rates subject to annual adjustment and escalation.
Exbibit B Page I of 1 12/18/2008
EXHIBIT C
EXHIBIT C
Professional Service Allreement - Insurance Requirements
Bums and Roe 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.
The insurance coverage as listed herein, shall be properly endorsed to include those
contractual obligations which may be identified further within this Agreement and, with
the exception of Workers' Compensation and Professional Liability, shall be endorsed to
provide City and Client all the rights and privileges of an additional insured.
Bums and Roe shall cause its insurers to issue Certificates of Insurance evidencing that
the coverages and policy endorsements required under this Agreement, are maintained in
force.
Bums and Roe shall ensure its Subcontractor (s), if any, maintain those insurance
requirements as specified in this Exhibit C and such insurance shall be endorsed to
provide City and Client all the rights and privileges of an additional insure-d. Bums and
Roe and its Subcontractor (s), if any, shall maintain in effect the following minimum
insurance coverages:
A. Workers' Compensation within the statutory limits and, if necessary,
Longshoremen and Harbor Workers and Jones Act, including occupational illness
or disease coverage in accordance with the laws of the nation, state, terTitory, or
province exercising jurisdiction over the Employees. Workers' Compensation
and Employer's Liability Insurance shall have a minimum limit of $ 1,000,000 per
occurrence.
B. 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 limit of $1,000,000 per occurrence and
$2,000,000 in the aggregate.
C. 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.
D. Professional Liability Insurance with limits of $10,000,000. Such evidence of
insurance can either be through the primary insurance coverages or through an
excess liability policy. The policy can be written on a claims made basis provided
any excess Professional Liability insurance policy conditions are as broad as those
required in the primary insurance.
- End of Exhibit C -
Exhibit C Page 1 of 1 12/18/2008
RISKMANk=MBNT
UNTER-DEPARTMENT MXM09AMtM
DATE: February 19, 2049
TO: Nelly Giron
City Clerk
FROM: Willard G. )�amaguchi
Risk Manager V�6'
RE: Burns and Roe Enterpri'ses, Inc.
Please be advised that the above referenced has acceptable
insurance coverage on file.
Attached for your retention are insurance certificates and
related policies, declarations and/or endorsements for the
above -referenced. insured that' were issued by:
# Hartford Fire Insurance company
(General Liabilityand
Automobile)
o American Home Assurance Company (Workers, Compensation)
* Lexington insurance Company (Professional Liability)
This concerns insurance coverage for the Professional
Engineering Services Ta,,gk Agreement tobe requested by the City
which will be identified in individual task orders, in
connection with power and energy projects,
WY/ab
C: Judy. Lehr
MARSH
CERTIFICATE
OF INSURANCE CERTIFICATE NUMBER
NYC-002428862-17
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS
NO RIGHTS UPON THE CERTIFICATE HOLDER OTHER THAN THOSE PROVIDED IN THE
POLICY. THIS CERTIFICATE DOES NOT AXEND, EXTEND OR ALTER THE COVERAGE
AFFORDED BY THE POLICIES DESCRIBED HEREIN.
PRODUCER
MARSH USA Inc.
44 WHIPPANY ROAD
PO BOX 1966
FAX: (203) 229-M3
E-MAIL: MORRISTOWN.CERTREQUEST@MARSH.COM
COMPANIES AFFORDING COVERAGE
MORRISTOWN, NJ 07962-1966
COMPANY
J06970—GAWX-08-Gg
A Hartford Fire Insurance Co
COMPANY
INWRED
BURNS AND ROE ENTERPRISES. INC.
ATTN: DOROTHY MAY
B American Horne Assurance Co
800 KINDERKAMACK ROAD
COMPANY
ORADELL, NJ 07649
C Liberty Mutual Insurance Company
COMPANY
COVERAGES This certificate supersedes and replaces any previously Issued certificate for the policy period noted below. 4
THIS IS TO CERTIFY THAT POLICIES OF INSURANCE DESCRIBED HEREIN HAVE
BEEN ISSUED TO THE INSURED NAMED HEREIN FOR THE POLICY PERIOD INDICATED,
N07WTHSTANDING ANY REQUIREMENT. TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THE CERTIFICATE MAY BE ISSUED OR MAY
PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS. CONDITIONS AND EXCLUSIONS OF SUCH POLICIES. AGGREGATE
LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLANS.
co TYPE OF INSURANCE
LTR I POUCYNUM13ER
Poucygrmcme POLICY1104RATION UL4UTS
DATEIMWDDfYY) DATE (MIAIDOM)
GENERAL
LIAMLITY
GENERAL AGGREGATE
2,000,000
A
X
COMMERCIAL GENERAL LIABILITY
r--I
ICLAIKSMADE JA JOCCUR
13ECSOA4709
05MI/08
05/Q1/09
PRO AG
_ .�DUCTS-COMPIOP G_
PERSONAL & ADV INJURY
$ — 2.000,OW
$ 1,0W,000
$ 1,000,000
OWNER'S & CONTRACTOR'S PROT
EACH OCCURRENCE
-X
SJ R- VALUE SID 000
FIRE DAMAGE IAny om rffe)_
$ 500,000
MED EXP lAny one Perm)
$ 10,000
A
AUTOMOBILE
X
LIABILITY
ANY AUTO
13 UEN TG2680
05/01/08
05101/09
COMBINED SINGLE LIMIT
$ 1,000,000
BODILY INJURY
(Per pemon)
$
ALL OWNED AUTOS
SCHEDULED AUTOS
BODILY INJURY
(Per=ldent)
$
HIRM AUTOS
NON -OWNED AUTOS
PROPERTY DAMAGE
$
GARA136 LIABILITY
AUTO ONLY - EA ACCIDENT
$
OTHER THAN AUTO ONLY:
ANY AUTO
EACH ACCIDENT
$
—1
AGGREGATE
$
c
EXCESS
LIABILITY
TH2-631-506772-018
05101108
05/01/09
EAC OCCURRENCE
$ 1,000,000
AGGREGATE
$
UMBRELLA FORM
OTHER THAN UMBRELLA FORM
a
B
WORKERS COMPEN"YlON AND
EMPLOYERS' LIABILITY
WC-9844477 (AOS)
WC-9M"78 (CA)
07/01/08
07101/08
05101109
05101/09
WC STATU
x I TORY UMI%
EL EACH ACCIDENT
$ 1,000,OOD
THE PROPRIETORJ F—V-1
PARTNERSI'EXECUTIVE INCL
OFFICERS ARE: N EXCL
EL DISEASEPOLICY UMIT
1$ 11.0mom
EL DISEASE -EACH EMPLOYEE1
$ 11.000.0m
UTIMILK
DESCRIPTION OF OPF.RATIONSM=ATIONSMHICLESISPECIAL ITEMS
RE: PROFESSIONAL ENGINEERING SERVICES TASK AGREEMENT, THE CITY OF VERNON IS INCLUDED AS AN ADDITIONAL INSURED ON
GENERAL LIABILITY AND AUTOMOBILE LIABILITY POLICIES.
CERTIFICATE.HOLDEW
CANCELLAMON
SMXJLD ANY OF THE POLICIES DESCRIBED HEREIN BE CANCELLED BEFORE THE UARATWN DArE n4MOF.
THE INSURER AFFORDINO COVERAGE WILL ENDEAVOR TO MAIL -M DAYS vmrrreN NOTICE TO THE
THE CITY OF VERNON
ATTN: ANA BARCIA
COMFY -ATE HOLM NAMED HEREIN, BUT FAILURE TO MAIL SUCH NOTICE SIO.U. IMPOSE NO 08UGATM OR
4305S . SANTA FIE AVENUE
L"11MOIF ANY KIND UPON TKE INSURER AFF4oRDNa commm. rrSAOENT3 OR REPRESENTAT11JES. OR THE
VERNON,CA 90058
ISSUER OFTIUSCERTIFICATE-
AMOMM REPREWITATIVE
ofMomhUSAInp.
BY. Mary Radaszewski
MM11(3102).: VAUD AS OF:07102/08
-ACORD. CERTIFICATE OF LIABILITY INSURANCE
�PRODUCER
DATE IMMIDWffM
1 04/28/2009
(201)26Z-1200 FAX (201)262-7820
Fenner & Esler Agency, Inc.
467 Kinderkamack Road
P. 0. Box 60
Oradell, NJ 07649-0060
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 POLICIES BELOW.
INSURERS AFFORDING COVERAGE
NAJC #
INSURED Burns & Roe Group, Inc.
Burns & Roe Enterprises, Inc.
Attn: Dorothy May
800 Kinderkamack Road
Oradell, NJ 07649
INSUREIRA; Lexington Insurance Company
INSURER 8:
INSURER C:
INSURER a.
INSURER E:
PnUCOACIO-52
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 IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH
POLICIES, AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
INSR
I TO
AGO
,,.A
TYPE OF INSURANCE
POLICY NUMBER
POLICY E;M
N&
LIMITS
GENEIRALLMILITY
COM MERCIAL GENERAL LIABILITY
CLAIMS MADE C] OCCUR
EACH OCCURRENCE
$
DAMAGE TO RENTED
M�)
-
NMD EXP (Arry one person)
S
PERSONAL & AOV INJURY
$
GENERAL AGGREGATE
5
LGr-En AGGREGATE LIMIT APPLIES PER:
L POUCY r-j PRI F-1 LOC
i jECT
PRODUCTS. COMPIOPAGG
S—
AUTOMOBILE LIABILITY
ANY AUTO
ALL OWNED AUTO$
SCHEDULED AUTOS
HIRED AUTOS
NOWOWNED AUTOS
COMBINED SINGLE LIMIT
(Ea acdclard)
BODILY INJURY
(Par Person)
BODILY INJURY
(Per aomer.1)
PROPERTYDAMAGE
(Per acoldent)
$
LGARAGE UA131LITY
HANYAUTO
AUTO ONLY, EA ACCIDENT
S
OTHER THAN EAACC
AUTO ONLY: AGG
3
S
EXCESSIUMBIRELLA LLABILITY
OCCUR CLAIMS MADE
DEDUCTIBLE
RETENTION S
EACH OCCURRENCE
3
AGGREGATE
s
S
WORKERS COMPENSATION AND
EMPLOYERS'LIABILIrY
ANY PROPIRIETORIPARTNERIEXECUTIVE
OFFICERIMEMBER EXCLUDED?
Mdesorbe taWer
IAL PROVISIONS below
WC STATU- OTH.
I TORY I IMITS1 I FR
E.L. EACH ACCIDE14T
III
E.L. DISEASE - EA EMn2A
S
E.L. DISEASE - POLICY LIMIT
I S
A
OTH
roVelssional Liability
laims Made Form
0859333
04/30/2008
04/30/2009
Per Claim/Aggregate 10,000,000
vEsMPTION OF OPERATIONS I LOCATIONSI VEHICLES I EXCLUSIONS ADDED BY ENDORSEMENT I SPECIAL PROVISIONS
The City of Vernon
Risk Management Department
Attn: Anthony Baldere
4305 S. Santa Fe Avenue
Vernon, CA 90058
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE
EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL
30 DAYS WRITTEN NOTICE To THE CERTLqCATE HOLDER NAMED TO THE LEFT.
BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY
AUTHORIM REPIRESENTATAM *0
Timothv Esler/3EAN
ACORD 25 (2001108)
(DACORD CORPORATION 1988
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LIGHT & POWER DEPARTMENT
Donal O'Callaghan, Director of Light & Power
January 26, 2009
Mr. Richard Edelman
Burns and Roe Enterprises, Inc.
800 Kinderkamack Road
Oradell, New Jersey 07649
Dear Mr. Edelman:
0 2 2009
, f
L i
4-6
(f 7�1 I 1C)q
Subject: Professional Engineering Services Task Agreement By and Between Burns and Roe
Enterprises, Inc., and the City of Vernon
Enclosed herewith for your signature is the Professional Engineering Services Task Agreement By and
Between Burns and Roe Enterprises, Inc., and the City of Vernon
Please execute and return the agreement to the attention of the undersigned. Once this Agreement is
properly executed and returned, it will be signed by the City of Vernon and a fully executed Agreement will
be returned to you for your records.
Thanking you in advance for your attention to this matter.
Sincerely,
CITY OF VERNON
Light & Power Department
al 0 allaghan
Director, Light & Power
DO:rmt
Enclosure
cc: Project Control
Document Control
4305 Santa Fe Avenue, Vernon, California 90058 Telephone (323) 583-8811 Fax (323) 826-1425
Ercfusivefy Industriaf
PROFESSIONAL ENGINEERING SERVICES TASK AGREEMENT
BY AND BETWEEN
BURNS AND ROE ENTERPRISES, INC.,
AND
THE CITY OF VERNON
This Professional Engineering Services Task Agreement ("this Agreement"), effective as
of ("Effective Date"), is made by and between The City of
Vemon("Client"), a California chartered municipality -with offices located at 4305 S. Santa
Fe Avenue, Vernon, CA 90058 and Bums and Roe Enterprises, Inc. (Debtor in
Possession) ("Bums and Roe"), a New Jersey corporation with offices located at 800
Kinderkamack Road, Oradell, NJ 07649.
WITNESSETH
WHEREAS, Client desires to engage Bums and Roe to provide engineering, design,
construction monitoring and related consulting services on a task basis upon the terms and
conditions hereinafter set forth, and Bums and Roe is prepared to perform such work upon
such terms and conditions;
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, the parties hereto agree as follows:
Article I - Term of Agreement
This Agreement shall be effective as of the date executed, and continue to be in effect for a
period of forty-eight (48) months, unless otherwise earlier terminated.
Article 11 - Scope of Work
Bums and Roe will perform the Services (the "Services") as may be requested by the
Client in connection with power and energy projects, which will be identified in individual
Task Orders to be issued by the Client. The Client will issue to Bums and Roe written
Task Order assignments describing the project, the scope and schedule of services to be
furnished and other material considerations, including budgetary limitations, if any.
A sample Task Order to be used by the Client to approve and authorize Bums and Roe to
proceed with the work is contained in Exhibit A.
Article III - Compensation
As compensation for the Services rendered hereunder, Bums and Roe will be compensated
as set forth in the individual Task Orders in accordance with the hourly rates set forth in
Exhibit B hereto plus approved out-of-pocket expenses.
Professional Service Agreement Page 1 of 9 12/18/2008
Burns and Roe Enterprises, Inc.
Article IV - Payment
Bums and Roe will submit invoices covering monthly periods for the work performed and
expenses incurred. Payment shall be due within thirty (30) days after receipt of the invoice
in a fori-nat acceptable to Client. Late payments shall bear interest at the rate of 1 112% per
month from said due date. In the event Client takes exception to any invoiced item, Client
shall short -pay the invoices, deducting the excepted amount (s) from the invoice total, and
pay the balance. Client shall promptly notify Bums and Roe, in writing, setting forth the
reasons for the exception.
Article V - Relationship of Parties
Bums and Roe, and anyone it may engage to perform any part of the Work hereunder are
independent contractors, and not employees or agents of Client.
Article VI - Mutual Indemnity
To the fullest extent permitted by law, Bums and Roe agrees to indemnify, defend and
hold harmless Client,.its officers, agents and employees, against all third party claims
against Client for personal injury or wrongful death or property damage arising out of any
error, omission or negligent act of Bums and Roe, its officers, agents or employees, in the
execution or performance of this Agreement.
To the fullest extent permitted by law, Client agrees to inderrinify, defend and hold
harmless Bums and Roe, its officers, agents and employees, against all third party claims
against Bums and Roe for personal injury or wrongful death or property damage arising
out of any error, omission or negligent act of the Client, its officers, agents or employees,
in the execution or performance of this Agreement.
Said agreement by each Party to indemnify the other, and its officers, agents and
employees shall continue in full force and effect until the expiration of one (1) year after
Completion of the Work..
Article VII - Insurance
As a minimum, Bums and Roe will maintain Workers' Compensation Insurance as
required by law and Comprehensive General and Automobile Liability Insurance with
conibined bodily injury and property damage limits in accordance with Exhibit C.
Article Vill - Termination
Either Party may terminate this Agreement upon written notification to the other party,
such termination to become effective upon receipt of notification. Client shall pay Bums
and Roe for all Services performed up to the effective date of termination, plus all
reasonable costs associated with the orderly close-out of the Services unless Bums and
Roe is terminated for a default under the terms of this Agreement, at which point Client
shall pay Bums and Roe for all Services performed up to the effective date of termination.
Article IX - Warranty
Bums and Roe warrants that it shall perforin its Services in accordance with the same
Professional Service Agreement Page 2 of 9 12/18/2008
Burns and Roe Enterprises, Inc.
degree of skill and care ordinarily used by members of the engineering profession,
practicing under the same conditions, at the same time and locality of the project, and that
the Work will be free from errors or defects. If any of Bums and Roe's Services or Work
do not conform to such standards, Bums and Roe's sole liability, in respect thereof, shall
be limited to re -performing such nonconforming Services, or correcting the Work at no
additional cost to Client. It is understood that time is of the essence as to the
commencement of re -performing Services or correcting,the Work and any such
rework/corrections shall be performed in an expedited manner so as not to impact the
project as a whole. Should Bums and Roe delay the re -performance of the Work beyond
what is deemed reasonable by the Client, the Client shall notify Bums and Roe in writing.
If Bums and Roe fails to commence re -performance within five (5) business days of
receipt of this notice, then Client may subcontract the re -performed Work at Bums and
Roe's expense.
All claims of nonconforming Services must be specified in writing and received by Bums
and Roe no later than one (1) year after Completion of the applicable assignment.
If any Work is modified by Bums and Roe after Completion, or if any Work is corrected,
repaired, replaced and/or re -performed by Bums and Roe during the primary Warranty
Period, the warranty under this Article shall apply to such Work for a period of twelve (12)
months from the date of such modification, correction, repair, replacement or re -
performance. However, in no event shall the total Warranty Period extend beyond twenty
four (24) months after Completion.
THIS WARRANTY IS THE ONLY WARRANTY OFFERED BY BURNS AND ROE,
AND IS EXPRESSLY OFFERED IN LIEU OF ANY OTHER WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY
OTHER WARRANTY EXPRESS OR IMPLIED, AGAINST DEFECTS, LATENT OR
OTHERWISE.
Article X - Changes
Client shall have the right to make changes, within the general scope of this Agreement, in
the Services to be performed or their sequence, schedule, or duration. Changes in the
Services may also result from changes in the project, changes in vendor information,
suspension or other delays not caused by Bums and Roe, actions or omissions of
contractors, regulatory authorities, including but not limited to the California Energy
Commission, or other governmental agencies, court decisions, legislation and other events
beyond the control of Bums and Roe as defined in Article XII . If any such change
involves an increase or decrease in the scope of Services under this Agreement or the cost
thereof, or requires that Services previously accomplished be redone, or affects the time
required for the perforrriance of any part of the Services, Bums and Roe shall so notify
Client, in writing, within ten (10) business days and if the change is deemed to be a
material change to the Burns and Roe scope of work, Bums and Roe shall be entitled to an
equitable adjustment to the price, schedule of performance or both or to any other affected
provisions of this Agreement. Bums and Roe shall not proceed with any change unless
Bums and Roe has clearly defined the full impact(s) of the change to the Client, and the
Client has provided written authorization to proceed.
Professional Service Agreement Page 3 of 9 12/18/2008
Burns and Roe Enterprises, Inc.
Article XI - Compliance With Laws
Bums and Roe and Client shall comply with the requirements of applicable laws,
regulations and standards in effect as of the Effective Date of this Agreement. Changes to
these requirements after the Effective Date of this Agreement may be the basis for
modifications to Client's responsibilities, or to Burns and Roe's scope of services, time of
performance or compensation. Bums and Roe must comply with all CEC / CBO
requirements as part of the base scope of services.
Article XII - Events Beyond the Control of Burns and Roe
Bums and Roe shall not be responsible for any delay or failure in performance of the
Services or for any delay or deficiency in any project for which it provides Services, if and
to the extent that such delay, failure or deficiency is beyond the control of Bums and Roe
and which Bums and Roe could not have reasonably foreseen and caused by such events
as: acts of God, fire, flood, explosion, strikes, sabotage acts of the public enemy, civil
insurrection, riot, acts of terrorism, court orders, injunctions, changes in applicable laws,
acts of any nation, , contractors, subcontractors, suppliers, agents of Client and labor
disputes, work stoppages or slowdowns, freight embargoes, unusually severe weather,
equipment failure, or any other cause or event beyond the control of Bums and Roe.
Article X111 - Cost Estimates
Bums and Roe has no control over the cost of labor, materials or equipment or any
contractor's method of determining prices or other competitive bidding or market
conditions. Any of Bums and Roe's cost estimates prepared under this Agreement for the
construction, equipment, materials or supplies provided by others, are made solely on the
basis of Bums and Roe's experience and information fumished to it and represent its best
judgment as a consulting professional familiar with the construction industry, but Bums
and Roe cannot and does not guarantee that actual costs will not vary from Bums and
Roe's cost estimate.
Article XIV - Ownership of Documents
All technical materials, including documents, drawings, prints, calculations, models,
electronic data, etc., prepared specifically for Client in connection with the Services of
Bums and Roe hereunder shall become the property of Client and shall be turned over,
upon written request, to Client upon completion of the Services and final payment
therefore.
In the event drawings and specifications are prepared in Computerized Assisted Drafting
and Design (CADD) form for Client due to the potential that information set forth on
computer disks and/or magnetic tapes can be modified by Client, unintentionally or
otherwise, Bums and Roe reserves the right to remove all indicia of its ownership and/or
involvement from each electronic display. For documentation purposes, the original
CADD disk will be retained by Bums and Roe. Bums and Roe will also retain one
reproducible copy of all materials as instruments of service and shall have the unrestricted
right to use such documents. Client agrees that all documents fumished to it by Bums and
Roe will be used solely in connection with the particular purpose for which such
documents were prepared or famished. Client assumes full responsibility for any
Professional Service Agreement Page 4 of 9 12/18/2008
Burns and Roe Enterprises, Inc.
unauthorized use of any such materials and hereby indemnifies and holds Bums and Roe
harmless from all claims, damages, losses or expenses, including without limitation,
counsel fees and expenses and all costs of investigating and defending against claims
resulting therefrom. All other materials prepared or used by Bums and Roe in connection
with the Services generally, but not specifically prepared for Client, shall remain the sole
property of Bums and Roe and shall, if deemed appropriate by Bums and Roe, be
designated as proprietary to Bums and Roe.
Article XV - Client's Responsibilities
Client shall throughout the perfoririance of this Agreement cooperate with Bums and Roe
Client shall perform its own responsibilities, obligations and services, including:
(i) making timely payments; (ii) providing Bums and Roe with access to jobsites,
necessary documents and drawings; (iii) providing timely review and approval of Bums
and Roe's submissions, so as not to delay Bums and Roe's performance of its obligations
under this Agreement.
Article XVI - Information Furnished by Client
Bums and Roe shall have the right to rely upon the accuracy, currentness and sufficiency
of all information, data, materials and services furnished by Client or any of its contractors,
vendors, consultants, employees or agents.
Article XVII - Construction Management / Field Consulting Engineering Services
In the event construction management services or field consulting engineering assignments
are included as part of Bums and Roe's scope of Services, it is expressly understood that
Bums and Roe's sole responsibility, acting as agent of Client in the performance of the
construction management or field consulting assignment responsibilities hereunder in
connection with the work of construction contractors, will be to evaluate, for the sole
benefit of Client, the construction contractors' work to determine technical compliance
with the contract documents. Accordingly, Bums and Roe will not be responsible for the
construction contractors' means, methods, techniques, sequences or procedures of
construction, or their safety precautions and programs nor for any failure to perforin the
work in full accordance with their contract documents. Furthermore, any inspection,
review, supervision, direction, observation or comment made by Bums and Roe shall be as
representative of and on sole behalf of Client.
Article XVIII - Entire Agreement
This Agreement, including all its Attachments, constitutes the entire Agreement between
the Parties. It supersedes all prior contemporaneous communications, representations or
agreements, whether oral or written, with respect to the subject matter hereof and has been
induced by no representation, promises or agreements other than those expressed herein.
Client is in no way relying upon any representations beyond those made in this Agreement.
In the event Client authorizes the Services by issuance of a purchase order, any pre-printed
terms contained therein shall be void and of no effect.
Professional Service Agreement Page 5 of 9 12/18/2008
Burns and Roe Enterprises, Inc.
Article XIX - No Third Party Beneficiary
This Agreement and all rights hereunder are intended for the sole benefit of the parties
hereto and shall not imply or create any rights on the part of, or obligations to, any other
entity not a party to this Agreement.
Article XX - Limitation of Liability
Bums and Roe, including any of its employees, agents, consultants contractors or vendors,
shall not be liable under this Agreement to Client, any of its agents, contractors, vendors or
third parties, whether in contract, tort or otherwise, for the payment of any special,
indirect, consequential or similar damages. Notwithstanding anything contained in this
Agreement to the contrary, Bums and Roe's aggregate liability for any and all claims
arising out of this Agreement, or out of any goods or services furnished under this
Agreement, whether based in contract, negligence, strict liability, agency, warranty,
trespass, indemnity or any other theory of liability including, pollution, environmental
damage, occupational disease and toxic torts, shall be limited to one hundred percent
(100%) of the total contract value, as amended.
Unless specified to the contrary within this Agreement, all liability of Bums and Roe to
Client, arising out of or connected with the subject matter of this Agreement, shall
terminate and. cease no later than the expiration of the warranties provided by Bums and
Roe.
Article XXI - Dispute Resolution
In the event a dispute arises between Client and Bums and Roe regarding any matter
here -under, each Party agrees to refer the matter to a senior executive of its respective
corporation. Said executives shall meet, and attempt to negotiate a good faith resolution of
the dispute. Should the executives be unable to obtain a resolution within thirty (30) days
after commencement of negotiation, either Party may then, by notice to the other, submit
the dispute to JAMS for resolution under its rules then in effect.
In no event shall the arbitrator(s) have jurisdiction to consider (i) claims for consequential
damages or damages beyond the limitations of liability contained in this Agreement or (ii)
any challenge to the limitation of liability contained in this Agreement. The decision of
the arbitrator(s) shall be final and binding upon the parties without the right of appeal to
the courts.
The prevailing Party, shall be entitled to reimbursement of its expenses, including
reasonable attorney's fees. Pending final resolution of any dispute, Client and Bums and
Roe shall continue to fulfill their respective obligations hereunder.
Article XXII - Assignment
This Agreement may not be assigned or otherwise transferred by either Party in whole or
in part without the express prior written consent of the other Party, which consent shall not
unreasonably be withheld. This consent requirement shall not apply in the event either
Party shall change its corporate name or merge with another corporation. This Agreement
shall benefit and be binding upon the successors and assigns of the Parties hereto.
Professional Service Agreement Page 6 of 9 12/18/2008
Burns and Roe Enterprises, Inc.
Article XXIII - Governing Law
This Agreement shall be governed by, and construed in accordance with the laws of the
State of California, without regard to principles of conflicts of laws. Any lawsuit which
may arise with respect to this Agreement shall be brought only in a court of competent
jurisdiction located within Los Angeles County in the State of California.
Article XXIV - Amendments and Modifications
No amendments or modifications of this Agreement shall be valid unless evidenced in
writing and signed by duly authorized representatives of both Parties.
Article XXV - Notices
Any notice or other communication, including change of address, or of the person to be
notified, given under this Agreement to any Party shall be in writing and mailed by
certified or registered mail, return receipt requested, to the address and to the attention of
the representatives listed below:
Burns and Roe:
Name:
Title:
Address
Telephone No
Facsimile No.
Mr. Richard A. Edelman
—Project Director
800 Kinderkamack Road
Oradell, NJ 07649
201-986 4300
201-986 4193
Client:
Name:
Title:
Address:
Telephone No.
Facsimile No.
Mr. Donal O'Callaghan
Director of Light & Power
4305 S. Sante Fe Street
Vernon, CA 90058
323-826-3611
323-587-7596
e-mail Address —redelman@roe.com e-mail Address: docallaghan(a),ci.vemon.ca.us
Such notices shall be effective on the day received at the addresses specified above. Either
Party by like notice, may designate in writing, another address or office to which notices
shall be given pursuant to this Agreement.
Article XXVI - No Waiver
The failure of either Party to insist upon strict adherence to any term of this Agreement on
any occasion shall not be construed as a waiver or deprive that Party of the right to insist
upon strict adherence to that tenn or any other term of this Agreement. Any waiver must
be in writing and signed by the Party making the waiver.
Article XXVII - Survival and Severability
All express representations, warranties, inderrinifications, and limits of liability included in
this Agreement will survive its completion or termination for any reason.
If any provision of this Agreement shall be held invalid, illegal or unenforceable by a court
of competent jurisdiction, the validity, legality and enforceability of the remaining
provisions shall in no way be affected or impaired thereby. The remaining provisions shall
remain in full force and effect, as if the unenforceable provision had been deleted.
Professional Service Agreement Page 7 of 9 12/18/2008
Burns and Roe Enterprises, Inc.
Article XXV111 - Definitions
"Completion" is defined as the date on which Bums and Roe's Services are complete with
no outstanding issues or deliverables.
(Continued on Page 9 of 9)
Professional Service Agreement Page 8 of 9 12/18/2008
Burns and Roe Enterprises, Inc.
The parties acknowledge and accept the terms and conditions of this Agreement as
evidenced by the following signatures of their duly and authorized representatives. It is the
intent of the parties that this Agreement shall become operative when executed.
CLIENT:
City of Vernon
Leonis C. Malburg, Mayor
APPROVED AS TO FORM:
By:
Jeff A. Harrison, City Attorney
Date:
Attest:
Nelly Giron, City Clerk
BURNS AND ROE ENTERPRISES, INC.:
Debtor in Possesssion Attest:
By:
By
Albert M. Ferrer
Vice President, Power Consulting
Date:
&t44J a - fk&.r�
Richard A. Edelman
Project Director
Professional Service Agreement Page 9 of 9
Burns and Roe Enterprises, Inc.
12/18/2008
EXHIBIT A'
TASK ORDER NO.
TO PROFESSIONAL ENGINEERING SERVICES TASK AGREEMENT
. DATED BETWEEN.
BURNS AND ROE ENTERPRISES, INC. AND THE CITY OF VERNON, CA.
Date of Task Order:
Scope of Task Order:
Bums and Roe Estimated Man-hours:
Bums and Roe Estimated Cost:
Bums and Roe Schedule:
Authorized by:
Signature
Name
Title
Burns and Roe Enterprises, Inc.
Accepted by:
Signature
Name
Title
Exhibit B Page I of 1 12/18/2008
EXHIBIT B
BURNS AND ROE ENTERPRISES, INC.
2008 HOURLY RATES
Hourly Rate
Division Manager / Principal 191.00
Dept. Manager/Senior Proj. Mgr. / Chief Engr / Senior Consultant 164.00
Project Manager / Assistant Chief Engineer 160.00
Project Engineer/Senior Principal Engineer 154.00
Startup Manager (Field) (1) 135.00
Construction Manager (Field) (1) 135.00
Senior Site Engineer (Field) (1) 124.00
Site Engineer/Construction Supv. (Field) (1) 112.00
Engineering Specialist — Geotechnical, Stress Analysis
132.00
Principal Discipline Engineer 11
142.00
Principal Discipline Engineer 1
126.00
Senior Discipline Engineer 11
115.00
Senior Discipline Engineer 1
109.00
Discipline Engineer
97.00
Manager, Planning and Scheduling
141.00
Cost Estimator
115.00
Procurement/Buyer
126.00
Senior Planning & Scheduling
130.00
Planning & Scheduling
109.00
Project Controls
97.00
Senior Financial Analyst
112.00
Plant Design Supervisor
115.00
CADD Designer
109.00
CADD Drafter
75.00
Administrative Assistant
62.00
Secretary / Word Processing
52.00
Notes: 1. Field office rates apply for assignments of longer than 3 months.
Expenses
• A 10% fee will be added to Subcontractor costs to cover handling and administration.
* A surcharge of $2.25/hour of engineering and design labor will be applied as a
Computer Aided Engineering (CAE) charge.
* A surcharge of $2.15/hour for all home office labor will be applied for reproductions
and communications.
* Rates subject to annual adjustment and escalation.
Exhibit B Page I of 1 12/18/2008
EXHIBIT C
Professional Service Aareement - Insurance Requirements
Bums and Roe 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.
The insurance coverage as listed herein, shall be properly endorsed to include those
contractual obligations which may be identified further within this Agreement and, with
the exception of Workers' Compensation and Professional Liability, shall be endorsed to
provide City and Client all the rights and privileges of an additional insured.
Bums and Roe shall cause its insurers to issue Certificates of Insurance evidencing that
the coverages and policy endorsements required under this Agreement, are maintained in
force.
Bums and Roe shall ensure its Subcontractor (s), if any, maintain those insurance
requirements as specified in this Exhibit C and such insurance shall be endorsed to
provide City and Client all the rights and privileges of an additional insured. Bums and
Roe and its Subcontractor (s), if any, shall maintain in effect the following minimum
insurance coverages:
A. Workers' Compensation within the statutory limits and, if necessary,
Longshoremen and Harbor Workers and Jones Act, including occupational illness
or disease coverage in accordance with the laws of the nation, state, territory, or
province exercising jurisdiction over the Employees. Workers' Compensation
and Employer's Liability Insurance shall have a minimum limit of $1,000,000 per
occurrence.
B. Comprehensive General Liability Insurance, including, but not limited to,
Contractual Liability, Products and Completed Operations Liability, Broad Fom-1
Property Damage and Bodily Injury Liability, and Explosion, Collapse and
Underground Liability, with a minimum limit of $1,000,000 per occurrence and
$2,000,000 in the aggregate.
C. 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.
D. Professional Liability Insurance with limits of $10,000,000. Such evidence of
insurance can either be through the primary insurance coverages or through an
excess liability policy. The policy can be written on a claims made basis provided
any excess Professional Liability insurance policy conditions are as broad as those
required in the primary insurance.
- End of Exhibit C -
Exhibit C Page I of 1 12/18/2008