Resolution No. 2012-076RESOLUTION NO. 2012-76
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION OF A
PROFESSIONAL SERVICES AGREEMENT BY AND BETWEEN THE
CITY OF VERNON AND SAIC ENERGY, ENVIRONMENT &
INFRASTRUCTURE, LLC FOR ENGINEERING SERVICES
REGARDING THE MALBURG GENERATION STATION
WHEREAS, the City of Vernon (the "Cityff) is a municipal
corporation and a chartered city of the State of California organized
and existing under its Charter and the Constitution of the State of
California; and
WHEREAS, the Malburg Generation Station is scheduled to
conduct the Annual Adjusted Contract Capacity Test in accordance with
the provisions of Article VII "Testing" of the Power Purchase Tolling
Agreement; and
WHEREAS, the City requires the services of an engineer to
confirm the accuracy of the results of any Adjusted Contract Capacity
Test; and
WHEREAS, SAIC Energy, Environment, & Infrastructure, LLC
("SAIC Energy") is qualified and capable of furnishing the labor,
materials and expertise necessary to perform the Work; and
WHEREAS, by a memorandum dated may 2,2012, the Director of
Light & Power has recommended that the City enter into a professional
services agreement with SAIC Energy setting forth the terms and
conditions under which SAIC Energy will perform the Work (the
"Agreement"); and
WHEREAS, the City Council of the City of Vernon has
determined that, pursuant to the provisions of subsection (b)(1) and
(7) of Section 2.27 of the Vernon City Code, it is in the public
interest and necessity to enter into the Agreement with SAIC Energy
for engineering services.
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 does
hereby find and determine that the recitals contained hereinabove
are true and correct.
SECTION 2: The City Council of the City of Vernon hereby
approves the Agreement with SAIC Energy, Environment, & Infrastructure,
LLC, a copy of which is attached hereto as Exhibit A.
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
instructs the City Administrator, or his designee, to take whatever
actions are deemed necessary or desirable for the purpose of
implementing and carrying out the purposes of this Resolution and the
transactions herein approved or authorized,
SECTION 5: The City.Council of the City of Vernon hereby
directs the City Clerk, or the City Clerk' s designee, to send a fully
executed Agreement to:
SAIC Energy, Environment, & Infrastructure, LLC
Attention: Michael Giampetro, Managing Director
1000 Legion Place, Suite 1100
Orlando, FL 32801
-2-
SECTION 6: The City Clerk of the City.of Vernon shall
certify to the passage, approval and adoption of this resolution, and
the City Clerk of the City of Vernon shall cause this resolution and
the City Clerk's certification to be entered in the File of
Resolutions of the Council of this City.
APPROVED AND ADOPTED this 15 th day of May, 2012.
Wjjliam� J. Davis
Name:
Title: mayor Pro-Tem
-3-
STATE OF CALIFORNIA
) ss
COUNTY OF LOS ANGELES
I, Willard G. Yamaguchi, City Clerk of the City of Vernon, do
hereby certify that the foregoing Resolution, being Resolution
No. 2012-76, was duly passed, approved and adopted by the City Council
of the City of Vernon at a regular meeting of the City Council duly
held on Tuesday, may 15, 2012, and thereafter was duly signed by the
Mayor or Mayor Pro-Tem of the City of Vernon.
Executed this —,,'/ day of may, 2012, at Vernon, California.
(SEAL)
EXHIBIT A
PROFESSIONAL SERVICES AGREEMENT
This PROFESSIONAL SERVICES AGREEMENT ("Agreement") is. dated May, 1, 2012 by
and between SAIC Energy, Environment, & Infrastructure, LLC ("Consultant" or "SAIC"),
with offices at 1000 Legion Place, Suite 1100, Orlando, FL 32801 and City of Vernon
C'Client"), with offices at 4305 Santa Fe Avenue, Vernon, California' 90058, collectively the
"Parties" and each a "Party".
NOW, THEREFORE in consideration of the promises herein and for other good and valuable
consideration, the Parties agree as follows:
1. Scope of Services: Consultant and Client agree Consultant wil I perform an independent
engineering review of test procedure and test results; as well as, witness the 2012
adjusted ca pacity performance test of the Malburg Generating Station within the City of
Vernon, California (the 'Trojecf') as described in the Scope of Services attached as
Exhibit A in accordance with the schedule set forth therein. The services to be provided
pursuant to this Agreement are intended by the Parties to be used by the Client solely in
connection with the annual requirement within the Power Purchase Agreement between
the City Of Vernon and the owner of the Malburg Generating Station (the "Intended
Purpose").
2. Independent Contractor: Consultant is an independent contractor and is not an
employee of Client. Services performed by Consultant under this Agreement are solely
for the benefit of Client. Nothing contained in this Agreement creates any duties on the
part of Consultant toward any person not a party to this Agreement.
3. Standard of Care: Consultant will perform services under this Agreement with the
degree of skill and diligence normally practiced by professional engineers or consultants
performing the same or similar services. No other warranty or guarantee, expressed or
implied, is made with respect to the services furnished under this Agreement and all
implied warranties are disclaimed.
4. Changes/Amendments: This Agreement and its exhibits constitute the entire agreement
between the Parties and together with its exhibits supersede any prior written or oral
agreements. This Agreement may not be changed except by written amendment signed
by the Parties. The estimate of the level of effort, schedule and payment required to
complete the Scope of Services, as Consultant understands it, is reflected herein. Services
not expressly set forth in this Agreement or its exhibits are excluded. Consultant shall
promptly notify Client if changes to the Scope of Services affect the schedule, level of
effort or payment to Consultant and the schedule and payment shall be equitably
adjusted. If Consultant is delayed in performing its services due to an event beyond its
control, including but not limited to fire, flood, earthquake, explosion, strike,
transportation or equipment delays, act of war, or act of God, then the schedule or
payment under the Agreement shall be equitably adjusted, if necessary, to compensate
Consultant for any additional costs due to the delay.
SAIC
000000 1 2-CITY OF VERNON TESTING PSA.DOCX Page 1
PROFESSIONAL SERVICES AGREEMENT
Between SAIC Energy, Environment & infrastructure, LLC
and City of Vernon
Independent Engineering Review of Malburg 2012 Adjusted Capacity Test
5. Fee for Services: The fee for services under this Agreement will be based on the actual
hours of services furnished multiplied by Consultant's billing rates as of the date of its
monthly invoice plus all reasonable expenses directly related to the services furnished
under this Agreement. Client and Consultant acknowledge that the Scope of Services for
this Agreement cannot be accurately defined and on this basis, the approximate amounts
to be paid by Client for services and expenses hereunder are set forth in Exhibit B.
6. Payment: Client shall pay Consultant for services furnished under this Agreement upon
submission of monthly invoices in an amount equal to actual hours of services fumished
multiplied by Consultant's current billing rates attached as Exhibit B. Additionally,
Client shall reirriburse Consultant monthly for reasonable expenses at cost and at cost
plus 10% for the services of any Subconsultant.
Client shall pay Consultant in U.S. dollars within thirty (30) days of receipt of invoices
less any disputed amounts. If Client disputes any portion of the invoice, the undisputed
portion will be paid and Consultant will be notified in writing, within ten (10) days of
receipt of the invoice of the exceptions taken. Consultant and Client will attempt to
resolve the payment dispute within sixty (60) days or the matter may be submitted to
arbitration as provided below. Additional charges for interest shall become due and
payable at a rate of one and one-half percent (1-1/21/6) per month (or the maximum
percentage allowed by law, whichever is lower) on the unpaid, undisputed invoiced
amounts. Any interest charges due from Client on past due invoices are outside any
amounts otherwise due under this Agreement. If Client fails to pay undisputed invoiced
amounts within sixty (60) days after delivery of invoice, Consultant, at its sole discretion,
may Suspend services hereunder or may initiate collections proceedings, including
mandatory binding arbitration, without. incurring any liability or waiving any right
established hereunder or by law.
7. Indemnity: To the extent permitted by law, Consultant agrees to indemnify, defend and
hold harmless Client and its directors, officers, shareholders and employees from and
against any liability (including without limitation, reasonable costs and attorneys' fees)
incurred by Client to the extent caused by Consultant's negligent acts, errors or
omissions, including judgments in favor of any third party.
To the extent permitted by law, Client agrees to indemnify, defend and hold harmless
Consultant and its directors, officers, shareholders, employees and subconsultants from
and against any liability (including, without limitation, reasonable costs and attomey's
fees) incurred by Consultant to the extent caused by Client's negligent acts, errors or
omissions, including jildgments in favor of any third party.,
Each Party (the "F irst Party") Specifically and expressly waives its immunity under
applicable worker's compensation and industrial . insurance laws regarding liability
against the other Party (the "Second Party") for actions brought by any of the First
Party's employees against the Second Party, to the extent the liability is caused by the
First Party's negligent acts, errors or omissions.
000000 1 2-CITY OF VERNON TESTING PSA.DOCX May 1. 2012 Page 2
PROFESSIONAL SERVICES AGREEMENT
Between SAIC Energy, Environment & infrastructure, LLC
and City of Vernon
Independent Engineering Review of Malburg 2012 Adjusted Capacity Test
8. Reperformance of Services: If Client believes any of the services provided under this
Agreement do not comply with the terms of this Agreement, Client shall promptly notify
Consultant to permit Consultant an opportunity to investigate. If the services do not meet
the applicable standard of care, it will promptly reperform the services at no additional
cost to Client, including assisting Client in selecting remedial actions. If Client fails to
provide Consultant with prompt notice of non-compliance and an opportunity to
investigate and reperforin its services, Consultant's total obligation to Client will be
limited to the costs Consultant would have incurred to reperform the services.
9. Section Intentionally Left Blank.
10. Insurance: Consultant shall maintain insurance with the following required coverages
and limits and upon request, will provide a Memorandum of Insurance to Client:
Worker's Compensation Statutory
Employer's Liability U.S. $1,000,000
Commercial General Liability U.S. $1,000,000 per occurrence
U.S. $1,000,000 aggregate
Commercial Auto Liability U.S - $1,000,000 combined single limit
Professional Liability U.S. $1,000,000 per claim and in the aggregate
11. Work Product: Subject to the conditions of this paragraph, Client shall have the
unrestricted right to use the documents, analyses and other data prepared by Consultant
under this Agreement ("Work Products"); provided, however Client shall not rely on or
use the Work Products for any purpose other than the purposes under this Agreement and
the Work Products shall not be changed without the prior written approval of Consultant.
If Client releases the Work Products to a third party without Consultant's prior written
consent, or changes or uses the Work Products other than as intended hereunder,
(a) Client does so at its sole risk and discretion, (b) Consultant shall not be liable for any
claims or damages resulting from the change or use or connected with the release or any
third party's use of the Work Products and (c) Client shall indemnify, defend and hold
Consultant harmless from any and all claims or damages related to the release,. change or
third party use.
Subject to the conditions of this paragraph, Consultant hereby acknowledges that Client
may famish Work Products and copies thereof to lenders and any potential financial
parties, investors, underwriters, purchasers, advisors, representatives or other parties in
connection with the financings of the Project without Consultant's prior consent and
without changing the limitation of liability as defined below. Consultant agrees that any
such parties may use the Work Products provided such parties provide acknowledgement
and agreement substantially in a form attached hereto as Exhibit C, or as otherwise
agreed in, writing.
12. Limitation of Liability: No employee of Consultant shall have individual liability to
Client. To the extent permitted by law� the total aggregate liability of Consultant, its
officers, directors, shareholders, employees and subconsultants for any and all claims
arising out of this Agreement, including attorneys' fees, and whether caused by
000000 1 2-CITY OF VERNON TESTING PSA.00CX May 1, 2012 Page 3
PROFESSIONAL SERVICES AGREEMENT
Between SAIC Energy, Environment & Infrastructure, LLC
and City of Vernon
Independent Engineering Review of Malburg 2012 Adjusted Capacity Test
negligence, errors, omissions, strict liability, breach of contract or contribution, or
indemnity claims based on third party claims, shall not exceed the revenue received by
Consultant under this Agreement or One Hundred Fifty Thousand Dollars (U.S.
$150,000.00), whichever is greater.
D. No Consequential Damages: In no event and under no circumstances shall Consultant
be liable to the Client for any principal, interest, loss of anticipated revenues, earnings,
profits, increased expense of operation or construction, loss by reason of shutdown or
non -operation due to late completion or otherwise or for any other economic,
consequential, indirect or special damages.
14. Information Provided by Others: Client shall provide to Consultant in a timely manner
any i nformation Consultant indicates is needed to perform the services
hereunder. Consultant may rely on the accuracy of information provided by Client and its
representatives.
15. Opinions of Cost: Consultant does not control the cost of labor, materials, equipment or
services furnished by others, nor does it control pricing factors used by others to
accommodate inflation, competitive bidding or market conditions. Consultant estimates
of operation expenses or construction costs represent its best judgment as an experienced
and qualified professional and are not a guarantee of cost. This section does not apply to
the cost of Consultant performing the Scope of Services.
16. Safety and Security: Consultant has established and maintains programs and procedures
for the safety of its employees. Unless specifically included as a service to be provided
under this Agreement, Consultant specifically disclaims any authority or responsibility
for job site safety and safety of persons other than Consultant's employees. Consultant
shall not provide any such services and disclaims any responsibility under this Agreement
related to site security or the assessment, evaluation, review, testing, maintenance,
operation or safety practices or procedures related to security.
17. Level of Authority: Consultant provides its services, comments, opinions and
recommendations solely as a consultant to Client. The Parties acknowledge that primary
responsibility for design, construction, and operation of any facilities remains with the
owner(s), contractor(s), or operator(s). Employees of Consultant will not:
a. Perform any of the responsibilities of Client, owner(s), contractor(s), or
operator(s).
b. Expedite work for Client, owner(s), contractor(s), or operator(s) unless Client
requests Consultant to do so and Client reimburses Consultant costs for
expediting functions.
c. Advise Client, owner(s), contractor(s), or operator(s) on safety precautions,
procedures or programs.
000000 12-CITY OF VERNON TESTING PsA.DOCX May t, 2012 Page 4
PROFESSIONAL SERVICES AGREEMENT
Between SAIC Energy, Environment & Infrastructure, LLC
and City of Vernon
Independent Engineering Review of Malburg 2012 Adjusted Capacity Test
IS. Termination: Any Party may terminate this Agreement upon thirty (30) days prior
written notice to the other Party(s). Client shall pay Consultant for all services rendered
to the date of termination plus reasonable expenses for winding down the services. If any
Party defaults in its obligations hereunder, the non -defaulting Party(s), after giving seven
(7) days written notice of its intention to terminate or suspend performance under this
Agreement, may, if cure of the default is not commenced and diligently continued,
terminate this Agreement or suspend performance under this Agreement.
19. Dispute Resolution: Any dispute, claim or controversy arising out of or relating to this
Agreement or the breach, termination, enforcement, interpretation or validity thereof,
including the determination of the scope or applicability o I f this Agreement to arbitrate,
shall be determined by arbitration in Los Angeles, Califomi . a. The arbitration shall be
administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures.
The arbitrator shall be a retired judge. All decisions of the arbitrator shall be in writing,
and the arbitrator shall provide written reasons for their decision. The arbitration
decision shall be final and binding on the Parties. Judgment on the award may be entered
in any court having jurisdiction pursuant to this Agreement. Notwithstanding the
foregoing, the parties shall be permitted to access the court system to enforce any
arbitration award. The exclusive jurisdiction and venue under this Agreement shall be
the Superior Court of California, Los Angeles County.
20. Section Intentionally Left Blank.
21. Litigation Expenses: Client will be responsible for payment of all expenses and costs
associated with Consultant's compliance with a subpoena or Client request to produce
documents, data or testimony relating to any proceeding relating to any information
pertaining to Client's project or to the work Consultant performed for Client, excluding
any litigation or proceeding between Client and'Consultant. These costs will include
hourly charges for persons involved in responding to a subpoena or Client request, travel
and reproduction expenses, advice and participation of counsel in responding to a
subpoena and other request and other reasonable expenses. Consultant will endeavor to
confer with Client prior to responding to any subpoena or request Covered by this
paragraph.
22. Non Exclusivity of Services: Consultant may perform for other clients similar or
identical services to those services contemplated under this Agreement, subject to
applicable confidentiality and ethical obligations of Consultant. In the event Client
desires any level of exclusivity or other limitations on Consultant's services to its other
clients, Client and Consultant shall confer regarding the scope of requested exclusivity or
other limitations and the additional compensation to be paid to Consultant for the
requested exclusivity or other limitations on providing services to other clients. Any
agreed exclusivity or other limitations on providing similar or identical services shall be
confirmed in writing signed by the Parties and shall expressly state such provision shall
supersede this Section 22. No fiduciary or agency obligations shall be created as a result
of any exclusivity obligations or other limitations on Consultant's services to other
clients.
000000 1 2-CITY OF VERNON TESTING P$A.DOCX May 1, 2012 Page 5
PROFESSIONAL SERVICES AGREEMENT
Between SAIC Energy, Environment & infrastructure, LLC
and City of Vernon
Independent Engineering Review of Malburg 2012 Adjusted Capacity Test
23. Miscellaneous:
a. This Agreement is binding upon and will inure to the benefit of the Parties and
their respective successors and assigns. No Party may assign its rights or
obligations hereunder without the prior written consent of the other Party(s).
b. Any notice required or permitted by this Agreement to be given shall be deemed
to have been duly given if in writing and delivered personally or five (5) days
after mailing by first-class, registered, or certified mail, return receipt requested,
postage prepaid and addressed as follows:
Client: City of Vernon
Attention: Javier Valdez
Address: 4305 Santa Fe Ave.
Vernon, CA 90058
Consultant: SAIC Energy, Environment & Infrastructure, LLC
Attention: Michael Giampetro, Managing Director
Address: 1000 Legion Place, Suite I 100
Orlando, FL 32801
With a copy to:
Legal Department (which will not be considered notice)
SAIC Energy, Environment & Infrastructure, LLC
9400 N. Broadway, Suite 300
Oklahoma City, OK 73114
c. The Parties expressly Agree that all provisions of the Agreement, including the
clause limiting the liability of Consultant, were mutually negotiated and that but
for the inclusion of the limitation of liability clause in the Agreement,
Consultant's compensation for services would otherwise be greater and/or
Consultant would not have entered into the Agreement.
d. If any provision of this Agreement is invalid or unenforceable, the remainder of
this Agreement shall continue in full force and effact and the provision declared
invalid or unenforceable shall continue as to other circumstances.
c. This Agreement shall be governed by, and construed in accordance with, the laws
of the State of California.
f. In any action to enforce or interpret this Agreement, the prevailing party shall be
entitled to recover, as part of its judgment, reasonable attorneys' fees and costs
from the other party.
g. This Agreement shall not be construed against Consultant only on the basis that
Consultant drafted the Agreement.
000000 1 2-CITY OF VERNON TESTING PSA.DOCX May 1, 2012 Page 6
PROFESSIONAL SERVICES AGREEMENT
Between SAIC Energy, Environment & Infrastructure, LLC
and City of Vernon
Independent Engineering Review of Malburg 2012 Adjusted Capacity Test
h. Notwithstanding any statute to the contrary, the Parties agree that any action to
enforce or interpret this Agreement shall be initiated within two (2) years from the
time the party knew or should have known of the fact giving rise to its action, and
shall not in any case be initiated later than six (6) years after Consultant completes
its Scope of Services under this Agreement.
i. This Agreement may be executed in multiple counterparts, each of which shall be
deemed to be an original instrument, but all of which taken together shall
constitute one instrument.
000000 1 2-CITY OF VERNON TESTING PSA,DOCX May 1, 20U Page 7
PROFESSIONAL SERVICES AGREEMENT
Between SAIC Energy, Environment & Infrastructure, LLC
and City of Vernon
Independent Engineering Review of Malburg 2012 Adjusted Capacity Test
IN WITNESS WHEREOF, the Parties have signed this Agreement the date first written above.
CITY OF VERNON
Signature
Name William Davis
Title Mayor Pro—Tem
ATTEST:
Willard G. Yamaguchi, City Clerk
APPROVED AS TO FORM:
Willard G.. Yamaguchi,
Chief Deputy City At"rney
SAIC ENERGY, ENVIRONMENT & INFRASTRUCTURE, LLC
Signature
Name Christian H. Carprenter
Title Managing Director
Exhibit A — Scope of Services and Schedule
Exhibit B — Fees and Billing Rates
Exhibit C — Form of Agreement for Use of Work Product
000000 1 2-C[TY OF VERNON TESTING PSA.DOCX May 1, 2012 Page 8
EXHIBITA
To Agreement between SAIC Energy, Environment & Infrastructure, LLC
and City of Vernon
Scope of Services and Schedule for
nt Engineering Review of Malburg 2012
Test Witnessing (Phase III Services)
Test
The role of SAIC Energy, Environment & Infrastructure, LLC ("Consultanf') during the annual
performance test of the Malburg Generating Station (the "Projecf) is to provide verification of
work performed by others and to report to the City of Vernon (the 'Uient"). The Consultant will
perform the following tasks during the annual performance testing of the Project. The
Consultant shall focus on the. test conducted to verify the testing of the 2xI plant configuration
with the evaporative coolers on, duct burners off, and the auxiliary loads as defined in the
original Siemens test.
Task 1: Review Performance Testing Procedure
The Consultant will review and comment on detailed test procedure developed by other& The
budget assumes the review of one draft version of the Project test procedure and confirmation
that the comments are incorporated into the draft. Review of additional drafts will be additional
services.
Task 2: Witness Performance Tests
The Consultant will witness the Project's performance test. It is assumed that testing will be
accomplished in one day. Additional days on -site will be additional services.
Task 3: Review a Performance Test Report
The Consultant will review and comment on the annual performance test report. The budget
assumes the review of one draft version of the Project test report and confirmation that the
comments are incorporated into test report. Review of.additional drafts will be additional
services.
Task 4: Submit Letter Report(i) to Client
The Consultant will prepare a letter report summarizing the results of the performance test
specified by the Client, comment on the accuracy of the test report and identify any discrepancies
or errors noted.
SA 11:0
000000 1 2-CITY OF VERNON TESTING PSA.DOCX May 1, 2012 Page A-1
EXHIBIT A
To Agreement between SAIC Energy, Environment & Infrastructure, LLC
and City of Vernon
Scope of Services and Schedule for
Independent Engineering Review of Malburg 2012 Adjusted Capacity Test
Services Furnished by Client
The Client will assist the Consultant in obtaining the following, as applicable:
• Identification of and access to project participants' representatives.
• Copies of engineering information relating to the Project.
• Copies of contract documents to be reviewed.
• Copies of permit applications, permits, correspondence and other documentation relating to any
necessary environmental permits or licenses f6r the Project.
• Identification of and access to representatives of any public agency having jurisdiction over any
necessary environmental permits or licenses for the Project.
Schedule
As mutually agreed
Assumptions
The scope of services and associated pricing are based on the following assumptions,
clarification and information/assistance being provided in a timely manner. If these items or the
anticipated level of effort are inaccurate, additional services may be required.
I . Review of one draft version of the Malburg 2012 Test Procedure and confirmation of
incorpation of those comments into the final test procedure.
2. The performance test is completed in one day. The trip for witnessing the test is a total of
three days.
3. Review of one draft version of the Malburg 2012 Test Report and confirmation of
incorpation of those comments into the final test report.
4. One draft report to the Client and the incorporation of one consolidated set of comments,
as appropriate, into the final letter report.
000000 12-CITY OF VERNON TESTING PSA.DOCX May 1, 2012 Page A-2
EXHIBIT B
To Agreement between SAIC Energy, Environment & Infrastructure, LLC
and City of Vernon
Fees and Billing Rates for
Independent Engineering Review of Malburg 2012 Adjusted Capacity Test
Activity Estimated Fee
(Labor Only)
Phase III — Test Witnessing $15,000
Pricing Assumptions
The estimated fees are based on the following. Additional Services authorized by the Client will be
invoiced based on the rates established in the Agreement or as otherwise agreed.
Phase III — Start-up and Testing Monitoring
0 There will be one trip of three days duration each by one staff member.
.10 Expenses are not included.
� "IC
m5A
000000 1 2-CITY OF VERNON TESTING PSADOCX May 1, 2012 Page B-1
EXHIBIT B
To Agreement between SAIC Energy, Environment & Infrastructure, LLC
and City of Vernon
Fees and Billing Rates for
Independent Engineering Review of Malburg 2012 Adjusted Capacity Test
Billing Class Hourly Rate (US$) Typical Project Roles
1 20.00
2 35.00
3 49.00 Clerical, Administration, Junior Engineers and
4 64.00 Technicians
5 78.00
6 92.00
7
107.00
8
121.00
Staff Engineers, Consultants
9
136.00
and Technicians
10
150.00
11
164.00
12
179.00
Senior Engineers, Consultants and Technicians, and
13
193.00
Project Managers
14
208.00
15
U2.00
16
236.00
Executive Engineers and Consultants, Senior Project
17
251.00
Managers, and Principals
18
265.00
19
280.00
20
294.00
21
308.00
22
323.00
23
337.00
24
352.00
Executive Engineers and Cc nsultants, Senior Project
25
366.00
Managers, and Senior Principals
�6
380.00
27
395.00
28
409.00
29
424.00
30
438.00
31
452.00
*Salaries of personnel are suNect to change in accordance with Consultant's annual s alary adjustment program.
000000 1 2-CITY OF VERNON TESTING PSA,DOCX May 1, 2012 Page B-2
EXHIBIT C
To Agreement Between SAIC Energy, Environment & Infrastructure, LLC
and City of Vernon
—independent Engineering Review of Malburg 2012 Adjusted Capacity . Test
Form of Agreement with SAIC Energy, Environment & Infrastructure, LLC for
Use of Work Products in connection with
Malburg Generation Station 2012 Capacity Adjustment Test
This serves to document the acknowledgement and agreement between [Third Party]
("Recipient") and SAIC Energy, Environment & Infrastructure, LLC ("SAIC" or "Independent
Engineer") with respect to the use of documents prepared by SAIC when providing Independent
Engineering Services related to the Malburg Generating Station located in City of Vernon,
California (herein, the "Project").
Effective April, 27 2012 (the "Clienf') and SAIC executed a Professional Services Agreement
("PSA") for SAIC to provide an Independent Engineer's Report (the "Report") for the purpose of
supporting the financing of the Project.
As , Recipient requires the use of the Report prepared under the PSA and/or other
analyses, data or information prepared by SAIC (collectively "Work Products"). In
consideration of SAIC providing Work Products to Recipient, Recipient agrees as follows:
1 . The services to be provided by SAIC pursuant to the PSA, and any Work Products, are
intended to be. used solely in connection with the Recipient's financing transaction (the
"Intended Purpose). Recipient agrees that it will not use the Work Products in
furtherance of any purpose other than the Intended Purpose.
2. Recipient agrees not to make any changes to the Work Products without the prior written
approval of SAIC.
3. Recipient and its attorneys and consultants (the "Recipient Parties") shall have the' right
to use the Work Products for the Intended Purpose in a manner consistent with the terms
of this agreement. The Recipient agrees that the Recipient Parties will not release any
Work Products to a third party without the SAIC's prior written consent.
4. No employee of SAIC shall have individual liability to Recipient. To the extent
permitted by law, the total aggregate liability of SAIC for any and all claims arising out
of this agreement and any party's use of or reliance upon the Work Products, including
any claims based upon negligence, errors, omissions, strict liability, breach of contract,
contribution, or indemnity, shall not exceed one hundred fifty thousand dollars (U.S.
$150,000.00).
5. In no event and under no circumstances shall SAIC or Recipient be liable to each oth er
for any principal, interest, loss of anticipated revenues, earnings, profits, increased
expense of operations, loss by reason of shutdown or non -operation due to late
completion or otherwise or for any other economic, consequential, indirect or special
damages.
SAIC
000000 1 2-CITY OF VERNON TESTING PSA.DOCX May 1, 2012 Page C-1
EXHIBIT C
To Agreement Between SAIC Energy, Environment & Infrastructure, LLC
I and City of Vernon
Independent Engineering Review of Malburg 2012 Adjusted Capacity Test
6. Any dispute or action which arises under this agreement or which relates in any way to
this agreement, the subject matter of this agreement, or Recipient's use of or reliance
upon the Work Products shall be subject to binding. arbitration in English under the
Construction Industry Arbitration Rules as promulgated by the American Arbitration
Association and arbitrability shall be subject to the Federal Arbitration Act. EACH
PARTY UNDERSTANDS THAT, BY AGREEING TO ARBITRATE ANY DISPUTES
BETWEEN THEM, THEY ARE GIVING UP RIGHTS, INCLUDING RIGHTS TO A
TRIAL BY JURY, TO THE. BROADER DISCOVERY PERMITTED IN COURT
PROCEEDINGS, AND TO APPEAL.
7. In any action to enforce or interpret this Agreement, the prevailing party shall. be entitled
to recover, as part of its judgment, reasonable attorneys' fees and costs from the other
party.
8. This agreement shall be governed by, and construed in accordance with, the laws of the
State of New York. The parties also agree that New York law will apply to any claim
and/or litigation arising out of, or in any way related to, the -use of or reliance upon the
Work Products.
ACKNOWLEDGED & AGREED
[THIRD PARTY]
Signature
Name
Title
Date
SAIC ENERGY, ENVIRONMENT & INFRASTRUCTURE, LLC
Signature
Name
Title
Date
Copyright 0 SAIC Energy, Environment & Infrasirticture, LLC
All Rights Reserved
000000 1 2-CITY OF VERNON TESTING PSA.DOCX May 1, 2012 Page C-2
0"t f q( I
OFFICE OF THE CITY CLERK
4305 Santa Fe Avenue, Vernon, Calffornia 90058
Telephone (323) 50-Mil
May 3 0, 2012
SAIC Energy, Environment, & Iniftastructure, LLC
Attn: Michael Giampetro, Managing Director
1000 Legion Place, Suite I 100
Orlando, FL 32801
Re: Engineering Services Regarding the Malburg Generating Station
Dear Mr. Giampetro:
The insurance requirements have been met. Transmitted herewith is a fully executed original
agreement as referenced above, approved by City Council on May 15, 2012, through Resolution
No. 2012-76.
If you have any questions regarding this matter, please call Javier Valdez at 323/583-8811 Ext.
825.
Very/ttuly yours,
WILLARD G. YA CH
City Clerk
WGY:dj
Enclosure
c: Carlos Fandino
Javier Valdez
Purchasing Department
Resolution No. 2012-76
Agreement No. 12-043
E.Xc&sively Indmtfiaf
PROFESSIONAL SERVICES AGREEMENT
This PROFESSIONAL SERVICES AGREEMENT ("Agreement") is dated May 1, 2012 by
and between SAIC Energy, Environment, & Infrastructure, LLC ("Consultant! 'or "SAIC"),
with offices at 1000 Legion Place, Suite 1100, Orlando, FL 32801 and City of Vernon
("Clienf'), with offices at 4305 Santa Fe Avenue, Vernon, California 90058, collectively the
"Parties" and each a "Party".
NOW, THEREFORE in consideration of the promises herein and for other good and valuable
consideration, the Parties agree as follows:
I . Scope of Services: Consultant and Client agree Consultant will perform an independent
engineering review of test procedure and test results; as well as, witness the 2012
adjusted capacity performance test of the Malburg Generating Station within the City of
Vernon, California (the "Project") as described in the Scope of Services attached as
Exhibit A in accordance with the schedule set forth therein. The services to be provided
pursuant to this Agreement are intended by the Parties to be used by the Client solely in
connection with the annual requirement within the Power Purchase Agreement between
the City of Vernon and the owner of the Malburg Generating Station (the "Intended
Purpose").
2. Independent Contractor: Consultant is an independent contractor and is not an
employee of Client. Services performed by Consultant under this Agreement are solely
for the benefit of Client. Nothing contained in this Agreement creates any duties on the
part of Consultant toward any person not a party to this Agreement.
3. Standard of Care: Consultant will perform services under this Agreement with the
degree of skill and diligence normally practiced by professional engineers or consultants
performing the same or similar services. No other warTanty or guarantee, expressed or
implied, is made with respect to the services furnished under this Agreement and all
implied warranties are disclaimed.
4. Changes/Amendments: This Agreement and its exhibits constitute the entire agreement
between the Parties and together with its exhibits supersede any prior written or oral
agreements. This Agreement may not be changed except by written amendment signed
by the Parties. The estimate of the level of effort, schedule and payment required to
complete the Scope of Services, as Consultant understands it, is reflected herein. Services
not expressly set forth in this Agreement or its exhibits are excluded. Consultant shall
promptly notify Client if changes to the Scope of Services affect the schedule, level of
effort or payment to Consultant and the schedule and payment shall be equitably
adjusted. If Consultant is delayed in performing its services due to an event beyond its
control,, including but not limited to fire, flood, earthquake, explosion, strike,
transportation or equipment delays, act of war, or act of God, then the schedule or
payment under the Agreement shall be equitably adjusted, if necessary, to compensate
Consultant for any additional costs due to the delay.
SA I Ce
000000 12-CITY OF VERNON TESTING PSADOCX Page 1
PROFESSIONAL SERVICES AGREEMENT
Between SAIC Energy, Environment & Infrastructure, LLC
and City of Vernon
Independent Engineering Review of Malburg 2012 Adjusted Capacity Test
5. Fee for Services: The fee for services under this Agreement will be based on the actual
hours of services furnished multiplied by Consultant's billing rates as of the date of its
monthly invoice plus all reasonable expenses directly related to the services furnished
under this Agreement. Client and Consultant acknowledge that the Scope of Services for
this Agreement cannot be accurately defined and on this basis, the approximate amounts
to be paid by Client for services and expenses hereunder are set forth in Exhibit B.
6. Payment: Client shall pay Consultant for services furnished under this Agreement upon
submission of monthly invoices in an amount equal to actual hours of services furnished
multiplied by Consultant's current billing rates attached as Exhibit B. Additionally,
Client shall reimburse Consultant monthly for reasonable expenses at cost and at cost
plus 10% for the services of any Subconsultant.
Client shall pay Consultant in U.S. dollars within thirty (30) days of receipt of invoices
less any disputed amounts. If Client disputes any portion of the invoice, the undisputed
portion will be paid and Consultant will be notified in writing, within ten (10) days of
receipt of the invoice of the exceptions taken. Consultant and Client will attempt to
resolve the payment dispute within sixty (60) days or the matter may be submitted to
arbitration as provided below. Additional charges for interest shall become due and
payable at a Tate of one and one-half percent (1-1/2%) per month (or the maximum
percentage allowed by law, whichever is lower) on the unpaid, undisputed invoiced
amounts. Any interest charges due from Client on past due invoices are outside any
amounts otherwise due under this Agreement. If Client fails to pay undisputed invoiced
amounts within sixty (60) days after delivery of invoice, Consultant, at its sole discretion,
may suspend services hereunder or may initiate collections proceedings, including
mandatory binding arbitration, without incurring any liability or waiving any right
established hereunder or by law.
7. Indemnity: To the extent permitted by law, Consultant agrees to indemnify, defend and
hold harmless Client and its directors, officers, shareholders and employees from and
against any liability (including without limitation, reasonable costs and attorneys' fees)
incurred by Client to the extent caused by Consultant's negligent acts, errors or
omissions, including judgments in favor of any third party.
To the extent permitted by law, Client agrees to indemnify, defend and hold harmless
Consultant and its directors, officers, shareholders, employees and subconsultants from
and against any liability (including, without limitation, reasonable costs and attorney's
fees) incurred by Consultant to the extent caused by Client's negligent acts, errors or
omissions, including j iidgments in favor of any third party.
Each Party (the "First Party") specifically and expressly waives its immunity under
applicable worker's compensation and industrial insurance laws regarding liability
against the other Party (the "Second Party") for actions brought by any of the First
Party's employees against the Second Party, to the extent the liability is caused by the
First Party's negligent acts, errors or omissions.
000000 1 2-CITY OF VERNON TESTING PSA.DOGX May 1, 2012 Page 2
PROFESSIONAL SERVICES AGREEMENT
Between SAIC Energy, Environment & Infrastructure, LLC
and City of Vernon
Independent Engineering Review of Malburg 2012 Adjusted Capacity Test
8. Reperformance of Services: If Client believes any of the services provided under this
Agreement do not comply with the terms of this Agreement, Client shall promptly notify
Consultant to permit Consultant an opportunity to investigate. If the services do not meet
the applicable standard of care, it will promptly reperform the services at no additional
cost to Client, including assisting Client in selecting remedial actions. If Client fails to
provide Consultant with prompt notice of non-compliance and an opportunity to
investigate and reperform its services, Consultant's total obligation to Client will be
limited to the costs Consultant would have incurred to reperform the services.
9. Section Intentionally Left Blank.
10. Insurance: Consultant shall maintain insurance with the following required coverages
and limits and upon request, will provide a Memorandum of Insurance to Client:
Worker's Compensation Statutory
Employer's Liability U.S. $1,000,000
Commercial General Liability U.S. $ 1,000,000 per occurrence
U.S. $1,000,000 aggregate
Commercial Auto Liability U.S. $ 1,000,000 combined single limit
Professional Liability U.S. $ 1,000,000 per claim and in the aggregate
11. Work Product: Subject to the conditions of this paragraph, Client shall have the
unrestricted right to use the documents, analyses and other data prepared by Consultant
under this Agreement ("Work Products"); provided, however Client shall not rely on or
use the Work Products for any purpose other than the purposes under this Agreement and
the Work Products shall not be changed without the prior written approval of Consultant.
If Client releases the Work Products to a third party without Consultant's prior written
consent, or changes or uses the Work Products other than as intended hereunder,
(a) Client does so at its sole risk and discretion, (b) Consultant shall not be liable for any
claims or damages resulting from the change or use or connected with the release or any
third party's use of the Work Products and (c) Client shall inderrinify, defend and hold
Consultant harmless from any and all claims or damages related to the release, change or
third party use.
Subject to the conditions of this paragraph, Consultant hereby acknowledges that Client
may furnish Work Products and copies thereof to lenders and any potential financial
parties, investors, underwriters, purchasers, advisors, representatives or other parties in
connection with the financings of the Project without Consultant's prior consent and
without changing the limitation of liability as defined below. Consultant agrees that any
such parties may use the Work Products provided such parties provide acknowledgement
and agreement substantially in a form attached hereto as Exhibit C, or as otherwise
agreed in writing.
12. Limitation of Liability: No employee of Consultant shall have individual liability to
Client. To the extent permitted by law, the total aggregate liability of Consultant, its
officers, directors, shareholders, employees and subconsultants for any and all claims
arising out of this Agreement, including attorneys' fees, and whether caused by
000000 1 2-CITY OF VERNON TESTING PSA.DOCX May 1, 2012 Page 3
PROFESSIONAL SERVICES AGREEMENT
Between SAIC Energy, Environment & Infrastructure, LLC
and City of Vernon
Independent Engineering Review of Malburg 2012 Adjusted Capacity Test
negligence, errors, omissions, strict liability, breach of contract or contribution, or
indemnity claims based on third party claims, shall not exceed the revenue received by
Consultant under this Agreement or One Hundred Fifty Thousand Dollars (U.S.
$150,000.00), whichever is greater.
13. No Consequential Damages: In no event and under no circumstances shall Consultant
be liable to the Client for any principal, interest, loss of anticipated revenues, earnings,
profits, increased expense of operation or construction, loss by reason of shutdown or
non -operation due to late completion or otherwise or for any other economic,
consequential, indirect or special damages.
14. Information Provided by Others: Client shall provide to Consultant in a timely manner
any information Consultant indicates is needed to perform the services
hereunder. Consultant may rely on the accuracy of information provided by Client and its
representatives.
15. Opinions of Cost: Consultant does not control the cost of labor, materials, equipment or
services furnished by others, nor does it control pricing factors used by others to
accommodate inflation, competitive bidding or market conditions. Consultant estimates
of operation expenses or construction costs represent its best judgment as an experienced
and qualified professional and are not a guarantee of cost. This section does not apply to
the cost of Consultant performing the Scope of Services.
16. Safety and Security: Consultant has established and maintains programs and procedures
for the safety of its employees. Unless specifically included as a service to be provided
under this Agreement, Consultant specifically disclaims any authority or responsibility
for job site safety and safety of persons other than Consultant's employees. Consultant
shall not provide any such services and disclaims any responsibility under this Agreement
related to site security or the assessment, evaluation, review, testing, maintenance,
operation or safety practices or procedures related to security.
17. Level of Authority: Consultant provides its services, comments, opinions and
recommendations solely as a consultant to Client. The Parties acknowledge that primary
responsibility for design, construction, and operation of any facilities remains with the
owner(s), contractor(s), or operator(s). Employees of Consultant will not:
a. Perform any of the responsibilities of Client, owner(s), contractor(s), or
operator(s).
b. Expedite work for Client, owner(s), contractor(s), or operator(s) unless Client
requests Consultant to do so and Client reimburses Consultant costs for
expediting functions.
c. Advise Client, owner(s), contractor(s), or operator(s) on safety precautions,
procedures or programs.
000000 1 2-CITY OF VERNON TESTING PSA.DOCX May 1, 2012 Page 4
PROFESSIONAL SERVICES AGREEMENT
Between SAIC Energy, Environment & Infrastructure, LLC
and City of Vernon
Independent Engineering Review of Malburg 20`12 Adjusted Capacity Test
18. Termination: Any Party may terminate this Agreement upon thirty (30) days prior
written notice to the other Party(s). Client shall pay Consultant for all services rendered
to the date of termination plus reasonable expenses for winding down the services. If any
Party defaults in its obligations hereunder, the non -defaulting Party(s), after giving seven
(7) days written notice of its intention to terminate or suspend performance under this
Agreement, may, if cure of the default is not commenced and diligently continued,
terminate this Agreement or suspend performance under this Agreement.
19. Dispute Resolution: Any dispute, claim or controversy arising out of or relating to this
Agreement or the breach, termination, enforcement, interpretation or validity thereof,
including the determination of the scope or applicability of this Agreement to arbitrate,
shall be determined by arbitration in Los Angeles, California. The arbitration shall be
administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures.
The arbitrator shall be a retired judge. All decisions of the arbitrator shall be in writing,
and the arbitrator shall provide written reasons for their decision. The arbitration
decision shall be final and binding on the Parties. Judgment on the award may be entered
in any court having jurisdiction pursuant to this Agreement. Notwithstanding the
foregoing, the parties shall be permitted to access the court system to enforce any
arbitration award. The exclusive jurisdiction and venue under this Agreement shall be
the Superior Court of California, Los Angeles County.
20. Section Intentionally Left Blank
21. Litigation Expenses: Client will be responsible for payment of all expenses and costs
associated with Consultant's compliance with a subpoena or Client request to produce
documents, data or testimony relating to any proceeding relating to any information
pertaining to Client's project or to the work Consultant performed for Client, excluding
any litigation or proceeding between Client and Consultant. These costs will include
hourly charges for persons involved in responding to a subpoena or Client request, travel
and reproduction expenses, advice and participation of counsel in responding to a
subpoena and other request and other reasonable expenses. Consultant will endeavor to
confer with Client prior to responding to any subpoena or request covered by this
paragraph.
22. Non Exclusivity of Services: Consultant may perform for other clients similar or
identical services to those services contemplated under this Agreement, subject to
applicable confidentiality and ethical obligations of Consultant. In the event Client
desires any level of exclusivity or other limitations on Consultant's services to its other
clients, Client and Consultant shall confer regarding the scope of requested exclusivity or
other limitations and the additional compensation to be paid to Consultant for the
requested exclusivity or other limitations on providing services to other clients. Any
agreed exclusivity or other limitations on providing similar or identical services shall be
confirmed in writing signed by the Parties and shall expressly state such provision shall
supersede this Section 22, No fiduciary or agency obligations shall be created as a result
of any exclusivity obligations or other limitations on Consultant's services to other
clients.
000000 1 2-CITY OF VERNON TESTING PSA.DOCX May 1, 2012 Page 5
PROFESSIONAL SERVICES AGREEMENT
Between SAIC Energy, Environment & Infrastructure, LLC
and City of Vernon
Independent Engineering Review of Malburg 2012 Adjusted Capacity Test
23. Miscellaneous:
a. This Agreement is binding upon and will inure to the benefit of the Parties and
their respective successors and assigns. No Party may assign its rights or
obligations hereunder without the prior written consent of the other Party(s).
b. Any notice required or permitted by this Agreement to be given shall be deemed
to have been duly given if in writing and delivered personally or five (5) days
after mailing by first-class, registered, or certified mail, return receipt requested,
postage prepaid and addressed as follows:
Client: City of Vernon
Attention: Javier Valdez
Address: 4305 Santa Fe Ave.
Vernon, CA 90058
Consultant: SAIC Energy, Environment & Infrastructure, LLC
Attention: Michael Giampetro, Managing Director
Address: 1000 Legion Place, Suite I 100
Orlando, FL 32801
With a copy to:
Legal Department (which will not be considered notice)
SAIC Energy, Environment & Infrastructure, LLC
9400 N. Broadway, Suite 300
Oklahoma City, OK 73114
c. The Parties expressly agree that all provisions of the Agreement, including the
clause limiting the liability of Consultant, were mutually negotiated and that but
for the inclusion of the limitation of liability clause in the Agreement,
Consultant's compensation for services would otherwise be greater and/or
Consultant would not have entered into the Agreement.
d. If any provision of this Agreement is invalid or unenforceable, the remainder of
this Agreement shall continue in full force and effect and the provision declared
invalid or unenforceable shall continue as to other circumstances.
e. This Agreement shall be governed by, and construed in accordance with, the laws
of the State of California.
f. In any action to enforce or interpret this Agreement, the prevailing party shall be
entitled to recover, as part of its judgment, reasonable attorneys' fees and costs
from the other party.
g. This Agreement shall not be construed against Consultant only on the basis that
Consultant drafted the Agreement.
000000 12-CITY OF VERNON TESTING PSA.DOGX May 1, 2012 Page 6
PROFESSIONAL SERVICES AGREEMENT
Between SAIC Energy, Environment & Infrastructure, LLC
and City of Vernon
Independent Engineering Review of Malburg 2012 Adjusted Capacity Test
h. Notwithstanding any statute to the contrary, the Parties agree that any action to
enforce or interpret this Agreement shall be initiated within two (2) years from the
time the party knew or should have known of the fact giving rise to its action, and
shall not in any case be initiated later than six (6) years after Consultant completes
its Scope of Services under this Agreement.
This Agreement may be executed in multiple counterparts,
deemed to be an original instrument, but all of which
constitute one instrument.
each of which shall be
taken together shall
000000 1 2-CITY OF VERNON TESTING PSADOGX May 1, 2012 Page 7
PROFESSIONAL SERVICES AGREEMENT
Between SAIC Energy, Environment & Infrastructure, LLC
and City of Vernon
Independent Engineering Review of Malburg 2012 Adjusted Capacity Test
IN WITNESS WHEREOF, the Parties have signed this Agreement the date first written above.
CITY OF VERNON
k-111 Al 11 artk G. - Y-a"gl/ShVcAty Clerk
Signature '--Wc� � OVED A
Name William Davis j C.
Title Mayor Pro—Tem I'amag/c1i
'A
Chief Deputy Civt�'�)y
SAIC ENERGY, ENVIRONMENT & INFRASTRUCTURE, LLC
Signature
Name Christian H. Carprenter
Title Managing Director
Exhibit A — Scope of Services and Schedule
Exhibit B — Fees and Billing Rates
Exhibit C — Form of Agreement for Use of Work Product
000000 1 2-CITY OF VERNON TESTING PSA.DOCX May 1, 2012 Page 8
EXHIBIT A
EXHIBITA
To Agreement between SAIC Energy, Environment & Infrastructure, LLC
and City of Vernon
Scope of Services and Schedule for
Independent Engineering Review of Malburg 2012 Adjusted Capacity Test
Test Witnessing (Phase III Services)
The role of SAIC Energy, Environment & Infrastructure, LLC ("Consultant") during the annual
performance test of the Malburg Generating Station (the "Project") is to provide verification of
work performed by others and to report to the City of Vernon (the'VIient"). The Consultant will
perform the following tasks during the annual performance testing of the Project. The
Consultant shall focus on the test conducted to verify the testing of the 2xI plant configuration
with the evaporative coolers on, duct burners off, and the auxiliary loads as defined in the
original Siemens test.
Task 1: Review Performance Testing Procedure
The Consultant will review and comment on detailed test procedure developed by others. The
budget assumes the review of one draft version of the Project test procedure and confirmation
that the comments are incorporated into the draft. Review of additional drafts will be additional
services.
Task 2: Witness Performance Tests
The Consultant will witness the Project's performance test. It is assumed that testing will be
accomplished in one day. Additional days on -site will be additional services.
Task 3: Review a Performance Test Report
The Consultant will review and comnient on the annual performance test report. The budget
assumes the review of one draft version of the Project test report and confirmation that the
comments are incorporated into test report. Review of additional drafts will be additional
services.
Task 4: Submit Letter Report(s) to Client
The Consultant will prepare a letter report summarizing the results of the performance test
specified by the Client, comment on the accuracy of the test report and identify any discrepancies
or errors noted.
SAIC
000000 1 2-CITY OF VERNON TESTING PSA.DOCX May 1, 2012 Page A-1
[*M"11911
To Agreement between SAIC Energy, Environment & Infrastructure, LILC
and City of Vernon
Scope of Services and Schedule for
Independent Engineering Review of Malburg 2012 Adjusted Capacity Test
Services Furnished by Client
The Client will assist the Consultant in obtaining the following, as applicable:
• Identification of and access to project participants' representatives.
• Copies of engineering information relating to the Project.
• Copies of contract documents to be reviewed.
• Copies of permit applications, permits, correspondence and other documentation relating to any
necessary envirormiental permits or licenses for the Project.
• Identification of and access to representatives of any public agency having jurisdiction over any
necessary environmental permits or licenses for the Project.
Schedule
As mutually agreed
Assumptions,
The scope of services and associated pricing are based on the following assumptions,
clarification and information/assistance being provided in a timely manner. If these items or the
anticipated level of effort are inaccurate, additional services may be required.
I . Review of one draft version of the Malburg 2012 Test Procedure and confirmation of
incorpation of those comments into the final test procedure.
2. The performance test is completed in one day. The trip for witnessing the test is a total of
three days.
3. Review of one draft version of the Malburg 2012 Test Report and confirmation of
incorpation of those comments into the final test report.
4. One draft report to the Client and the incorporation of one consolidated set of comments,
as appropriate, into the final letter report.
000000 1 2-CITY OF VERNON TESTING PSA.DOCX May 1, 2012 Page A-2
EXHIBIT B
EXHIBIT B
To Agreement between SAIC Energy, Environment & Infrastructure, LLC
and City of Vernon
Fees and Billing Rates for
—independent Engineering Review of Malburg 2012 Adjusted Capacity Test
Activity
Estimated Fee
(Labor Only)
Phase III — Test Witnessing
$15,000
Pricing Assumptions
The estimated fees are based on the following. Additional Services authorized by the Client will be
invoiced based on the rates established in the Agreement or as otherwise agreed.
Phase III — Start-up and Testing Monitoring
• There will be one trip of three days duration each by one staff member.
• Expenses are not included.
SAIC
000000 1 2-GITY OF VERNON TESTING PSA.DOCX May 1, 2012 Page B-1
EXHIBIT B
To Agreement between SAIC Energy, Environment & Infrastructure, ILLC
and City of Vernon
Fees and Billing Rates for
Independent Engineering Review of Malburg 2012 Adjusted Capacity Test
Billing Class
Hourly Rate (US$)
Typical Project Roles
1
20.00
2
35.00
3
49.00
Clerical, Administration, Junior Engineers and
4
64.00
Technicians
5
78.00
6
92.00
7
107.00
8
121.00
Staff Engineers, Consultants
9
136.00
and Technicians
10
150.00
11
164.00
12
179.00
Senior Engineers, Consultants and Technicians, and
13
193.00
Project Managers
14
208.00
15
222.00
16
236.00
Executive Engineers and Consultants, Senior Project
17
251.00
Managers, and Principals
18
265.00
19
280.00
20
294.00
21
308.00
22
323.00
23
337.00
24
352.00
Executive Engineers and Consultants, Senior Project
25
366.00
Managers, and Senior Principals
26
380.00
27
396.00
28
409.00
29
424.00
30
438.00
31
452.00
*Salaries of personnel are subject to change in accordance with Consultants annual salary adjustment program.
000000 1 2-CITY OF VERNON TESTING PSA.DOCX
May 1, 2012 Page B-2
EXHIBIT C
EXHIBIT C
To Agreement Between SAIC Energy, Environment & Infrastructure, LLC
and City of Vernon
- Independent Engineering Review of Malburg 2012 Adjusted Capacity Test
Form of Agreement with SAIC Energy, Environment & Infrastructure, LLC for
Use of Work Products in connection with
Malburg Generation Station 2012 Capacity Adjustment Test
This serves to document the acknowledgement and agreement between [Third Partyl
("Recipienf') and SAIC Energy, Envirom-nent & Infrastructure, LLC ("SAIC" or "Independent
Engineer") with respect to the use of documents prepared by SAIC when providing Independent
Engineering Services related to the Malburg Generating Station located in City of Vernon,
California (herein, the "Project").
Effective April, 27 2012 (the "Client") and SAIC executed a Professional Services Agreement
("PSA") for SAIC to provide an Independent Engineer's Report (the "Report") for die purpose of
supporting the financing of the Project.
As _, Recipient requires the use of the Report prepared under the PSA and/or other
analyses, data or information prepared by SAIC (collectively "Work Products"). In
consideration of SAIC providing Work Products to Recipient, Recipient agrees as follows:
I . The services to be provided by SAIC pursuant to the PSA, and any Work Products, are
intended to be used solely in connection with the Recipient's financing transaction (the
"Intended PUMose'). Recipient agrees that it will not use the Work Products in
furtherance of any purpose other than the Intended Purpose.
2. Recipient agrees not to make any changes to the Work Products without the prior written
approval of SAIC.
3. Recipient and its attorneys and consultants (the "Recipient Parties") shall have the right
to use the Work Products for the Intended Purpose in a manner consistent with the terms
of this agreement. The Recipient agrees that the Recipi ' ent Parties will not release any
Work Products to a third party without the SAIC's prior written consent.
4. No employee of SAIC shall have individual liability to Recipient. To the extent
permitted by law, the total aggregate liability of SAIC for any and all claims arising out
of this agreement and any party's use of or reliance upon the Work Products, including
any claims based upon negligence, errors, omissions, strict liability, breach of contract,
contribution, or indemnity, shall not exceed one hundred fifty thousand dollars (U.S.
$150,000.00).
5. In no event and under no circumstances shall SAIC or Recipient be liable to each other
for any principal, interest, loss of anticipated revenues, earnings, profits, increased
expense of operations, loss by reason of shutdown or non -operation due to late
completion or otherwise or for any other economic, consequential, indirect or special
damages.
15
= A /C
000000 1 2-CITY OF VERNON TESTING PSA.DOCX May 1, 2012 Page C-1
EXHIBIT C
To Agreement Between SAIC Energy, Environment & Infrastructure, LLC
and City of Vernon
Independent Engineering Review of Malburg 2012 Adjusted Capacity Test
Any dispute or action which arises under this agreement or which relates in any way to
this agreement, the subject matter of this agreement, or Recipient's use of or reliance
upon the Work Products shall be subject to binding arbitration in English under the
Construction Industry Arbitration Rules as promulgated by the American Arbitration
Association and arbitrability shall be subject to the Federal Arbitration Act. EACH
PARTY UNDERSTANDS THAT, BY AGREEING TO ARBITRATE ANY DISPUTES
BETWEEN THEM, THEY ARE GIVING UP RIGHTS, INCLUDING RIGHTS TO A
TRIAL BY JURY, TO THE BROADER DISCOVERY PERMITTED IN COURT
PROCEEDINGS, AND TO APPEAL.
In any action to enforce or interpret this Agreement, the prevailing party shall be entitled
to recover, as part of its judgment, reasonable attorneys' fees and costs from the other
party.
This agreement shall be governed by, and construed in accordance with, the laws of the
State of New York. The parties also agree that New York law will apply to any claim
and/or litigation arising out of, or in any way related to, the use of or reliance upon the
Work Products.
ACKNOWLEDGED & AGREED
[THIRD PARTY]
Signature
Name
Title
Date
SAIC ENERGY, ENVIRONMENT & INFRASTRUCTURE, LLC
Signature
Name
Title
Date
Copyright 0 SAIC Energv, Environment & Infrastructure, LLC
AllRightsReserved
000000 1 2-CITY OF VERNON TESTING PSA.DOGX May 1, 2012 Page C-2
Juarez, Debbie
From:
Arriola, Justin
Sent:
Wednesday, May 30, 2012 11:41 AM
To:
Juarez, Debbie; Valdez, Javier
Subject:
SAIC Energy Enviromental and Infrastructure, LLC
Morning Debbie and Javier,
Please be advised that the above reference has provided acceptable insurance coverage.
Thank you,
Justin Arriola
Risk Management Dpt.
Email: jarriola@ci.vernon.ca.us
Phone: (323) 583-881.1 ext: 315
CONFIDENTIALITY NOTICE: This e-mail transmission, and any documents, files or previous e-mail messages attached to it may
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RECF11VED
MAY 0 3 2012
CITY CLERK'S OFFICE
STAFF REPORT
LIGHT & POWER
FROM: Carlos Fandino Jr., Director of Light & Power
m
RECEIVED
-)N
MAY 0 2 iW12
CITY ADMINISTRATION
RE: SAIC Energy, Environmental & Infrastructure, LLC Formally Known as RW
Beck, Inc. (Resolution No. 2010-61) to Witness Test and Review Annual
PPTA 2012 Results
The Malburg Generation Station is schedule to conduct the annual performance test on
Tuesday, May 22, 2012 to determine the capacity and heat rate and the permitted
emissions limits. SAIC Energy, Environment & Infrastructure, LLC (SAIC) formally
known as RW BECK Inc. will be the third party to oversee the PPTA (Power Purchase
Tolling Agreement) testing and analysis results conducted by McHale Performance and
to ensure the findings are correct. SAIC is to provide verification of work performed and
to report to the City of Vernon giving the City the right t o execute the third party option
rights.
I
The total cost for SAIC services is in the amount not to exceed $15,000.00. This
amount will not be exceeded without prior written authorization from the City. Additional
scope of work is described in more detail in the attached Professional Services
Agreement dated April 27, 2012 for your review.
Recommendation:
It is recommended that the City Council approve the attached Service Agreement at the
May 15, 2012 City Council meeting.
Fiscal Impact:
It is anticipated that the total cost of SAIC services will not exceed $15,000.
CF: jv
Attachment
CITY ATTORNEY'S OFFICE
INTER -DEPARTMENT MEMORANDUM
DATE: April 30, 2012
TO: Carlos Fandino, Director of Light & Power
FROM: Willard G. Yamaguchi, Chief Deputy City Attorney
RE: SAIC Energy, Environmental & Infrastructure, LLC
I have received and reviewed your Memorandum dated April 30, 2012, and
the attachments thereto. I have the following suggested changes:
Page 6, Item 23e. Should read:
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of California.
Arbitration Clause should read:
Any dispute, claim or controversy arising out of or relating to this
Agreement or the breach, termination, enforcement, interpretation or
validity thereof, including the determination of the scope or
applicability of this Agreement to arbitrate, shall be determined by
arbitration in Los Angeles, California. The arbitration shall be
administered by JAMS pursuant to its Streamlined Arbitration Rules and
Procedures. The arbitrator shall be a retired judge. All decisions of
the arbitrator shall be in writing, and the arbitrator shall provide
written reasons for their decision. The arbitration decision shall be
final and binding on the Parties. Judgment on the award may be entered
in any court having jurisdiction pursuant to this Agreement.
Notwithstanding the foregoing, the parties shall be permitted to access
the court system to enforce any arbitration award. The exclusive
jurisdiction and venue under this Agreement shall be the Superior Court
of California, Los Angeles County.
Otherwise the Confidentiality & Non -Disclosure Agreement is approved as
to form.
WY: em
INTEROFFICE MEMORANDUM
Light & Power Department
APR 3 0 2012 LU
DATE: April 30, 2012 CITY ATTORNEY DEpT.
TO: Willard Yamaguchi
Interim City Attorney
FROM: Javier Valdez 0'? Lt
Business & Accounts Supervisor �T
SUBJECT: SAIC Energy, Environmental & Infrastructure, LLC Formally Known as RW
Beck, Inc (Resolution No. 2010-61) to Witness Test and Review Annual PPTA
2012 Results
The Malburg Generation Station is schedule to conduct the annual performance test on Tuesday,
May 22, 2012 to determine the capacity and beat rate and the permitted emissions limits. SAIC
Energy, Environment & Infrastructure, LLC (SAIC) formally known as RW BECK Inc. will be
the third party to oversee the PPTA (Power Purchase Tolling Agreement) testing and analysis
results conducted by McHale Performance and to ensure the findings are correct. SAIC is to
provide verification of work performed and to report to the City of Vernon giving the City the
right t o execute the third party option rights.
The total cost for SAIC services is in the amount not to exceed $15,000.00. This amount will not
be exceeded without prior written authorization from the City. Additional scope of work is
described in more detail in the attached Professional Services Agreement dated April 27, 2012
for your review.
Recommendation:
It is highly recommended that the City Council approve the attached Service Agreement with
SAIC at the May 15, 2012 City Council meeting for the amount not to exceed $15,000.00
CF: jv
Attachment