Loading...
4.1. ERMUSR HANDOUT 07 12 2011 Adams, Troy From: Croup, Sean E. <SEAN.E.CROUP@saic.com> Sent: Monday, July 11, 2011 5:05 PM To: Adams, Troy Cc: Stein, Steven; May, William S. Subject: Power Supply PSA and Task Authorization 7-11-11 Attachments: TA-ElkRiver071111.pdf; Master PSA_Elk River Municipal Utilities.pdf Troy, Attached is a Professional Services Agreement and Task Authorization for the power supply analysis. Please review and let us know if you have any questions or comments. We have estimated the range of costs for the project between $55,000 - $70,000. We will perform the evaluation on a time and materials basis based on actual costs but not to exceed the maximum without prior written approval. The work requires technical modeling to perform the evaluation as proposed. It includes: 1) A 10-Year annual projection of power costs for GRE. The projections will include fixed costs, Fuel Costs (coal, gas and market purchases) and other costs. 2) A 10-Year annual projection of power costs for three (3) CMMPA power supply alternatives. The projections will include fixed costs, Fuel Costs (nuclear, coal, gas and market purchases) and other costs. 3) Assumptions for fixed costs, fuel costs and other costs must be prepared on a consistent basis to allow for a fair evaluation and comparison of the four alternatives. Please do not hesitate to contact Steve or me if you have any questions about the proposed scope of services. Regards, Sean Croup Project Manager I T&D Planning and Analysis SAIL Energy, Environment & Infrastructure, LLC office: 407.648.3543 I mobile: 407.429.9644 1000 Legion Place, Suite 1100 Orlando, FL 32801 :y!n it cg[ii[ ,ur;?, ti~R ~~~A +s now.., SAICEnergyEnvjmnMent & Infrastructure, {.LC - -- - This email and any attachments to it are intended only for the identified recipients. It may contain proprietary or otherwise legally protected information of SAIC or its subsidiary companies. Any unauthorized use or disclosure of this communication is strictly prohibited. If you have received this communication in error, please notify the sender and tlelete or otherwise tlestroy the email and all attachments immediately. TASK AUTHORIZATION Task Authorization Description: Power Supply Analysis Effective Date: .fury ii, zoii Client Name and Number: Elk River Municipal Utilities Contract No.: Consultant and Client agree that this Task Authorization will be governed by the terms and conditions of the Professional Services Agreement dated July 11, 2011 unless specifically modified herein. Scope of Services The Client is interested in having SAIC provide consulting services associated with an evaluation of alternative long term all-requirements power supply including transmission services. The Client currently purchases all requirements power from Connexus who obtains the power it sells to the Client from Great River Energy ("GRE"). In 2008, Connexus exercised the termination clause of the rolling 10 year all-requirements power contract effectively establishing the contract end date as September 30, 2018. As a result of receiving this notice and other factors, Client decided to join a Resource Planning coalition with Central Minnesota Municipal Power Agency ("CMMPA") and others in a request for power supply process ("RFP") to obtain alternative power supply options. Connexus would like to continue to serve the Client, however, they are interested in renegotiating its contract terms. SAIC will provide the services to the Client on a time and materials basis. TASK -POWER SUPPLY ANALYSIS Consultant will conduct an evaluation of alternative all requirements power supply arrangements for the Client based on proposals received by the Client for the period January 1, 2019 to December 31, 2028 (the "Study Period"). The analysis will be based on offers and information to be obtained by the Client and provided to the Consultant. Services provided by the Consultant will include the following. 1. The Client and the Consultant will participate in a kick-off conference call. The parties shall agree on a schedule, review the proposed Task Authorization, and discuss the timing for decisions by CMMPA on the RFP process and its recent discussion with the Client's existing supplier. 2. The Consultant will prepare a data request for the term of a proposed arrangement between GRE and the Client to be provided to Connexus and GRE by the Client. The information requested from GRE may include the following. a. An electronic copy of the model of GRE's system including model inputs and outputs b. GRE and Client Annual Demand and Energy Load Forecast c. GRE and Client Hourly load data for a typical year R:IOrlandolElk River,TA-ELKRIVER071111.DOCX Paget TASK AUTHORIZATION d. Name of generation resource and purchase power contracts, unit ratings, full load heat rates, forced outage rates, fuel types, and emission rates for SOz, NOx and COz e. Monthly average fuel prices by fuel type in $/mmBtu & monthly average emission rates for SO2, NOx and COz in $/ton f Hourly market prices for the study period g. Existing and future annual interest and debt rates h. Most recent balance sheet i. Latest Integrated Resource Plan j. Projected monthly demand and energy rates and projected Client billing demand and energy determinants k Copy of the existing contract or tariff between GRE and the Client I. Annual projection of transmission services and ancillary charges on a per unit basis m. Projection and explanation of transmission congestion charges over the study period 3. The Consultant will review the data, model, and projections provided by Connexus and GRE. Based on assumptions provided to GRE by the Client, GRE will prepare projections of power costs for the Client. 4. The Consultant will prepare a list of the principal considerations and assumptions for the Client's review and approval. 5. The Consultant will prepare a 10-year independent projection of the Connexus and GRE system power supply costs using a model prepared by the Consultant. 6. The Consultant will prepare a 10-year projection of the Client's costs of purchase power for (i) a base case that will assume the Client continues to purchase power from its existing supplier and (ii) up to three (3) alternative power supply portfolios based on information that the Client obtains from CMMPA. It is assumed that the information from CMMPA will be complete and include basic projected power supply planning rates for each resource in the portfolios on a fixed ($/KW-mo.) and variable basis ($/MWh). The projections provided by CMMPA will include the cost of transmission services and CMMPA's explanation the congestion pricing included for each resource/portfolio. 7. The Consultant will prepare a 10-year projection of the Client's costs of purchase power from Connexus/GRE and the CMMPA proposals. The Consultant will prepare a comparison of the projected costs for purchase power including the cost of transmission services on a nominal and net present value basis. This comparison of projected costs will be documented in a brief letter report that will include a list of the principal consideration and assumptions. RiverlTA-ELKRIVER071111.DOCx page2 TASK AUTHORIZATION The Consultant will review the results with the Client's staff. The budget estimate does not include a presentation before the Utilities Commission. 9. The Consultant will provide other consulting services as requested by the Client as Additional Services. Deliverable The assumptions and results of the analysis will be provided in a letter report. Services Furnished by Client The Client will: ^ Provide notice to proceed. ^ Provide input on assumptions. ^ Provide historical and projected data and information about the Client's system including electronic load and other data in a format to be specified by the Consultant. ^ Provide required information from CMMPA and others necessary for the Consultant to conduce the requested services. ^ Provide all legal services required to do the work. Schedule Consultant will provide deliverables on a schedule as-agreed to by the Client. Fee for Services Consultant will perform the services under this Task Authorization on a time and materials basis in accordance with the terms of the Professional Services Agreement. The estimate for the services under this Task Authorization is between $55,000 and $70,000. The fee for the services will not exceed a budget ceiling of seventy thousand dollars ($70,000) without obtaining the prior written authorization of Client. Consultant shall not be required to furnish services or incur expenses above the budget ceiling without written authorization and additional funding from the Client. The budget for this Task Authorization does not anticipate or include expenses for travel. Assumptions The Scope of Services and associated pricing are based on the following assumptions, clarification, information, and assistance being provided in a timely manner. If these items or the anticipated level of effort are inaccurate, additional services may be required. 1. Client shall provide information and data that the Consultant requests and on which it can rely in performing services under this Agreement. 2. One draft and one final letter report are included in the estimate. Additional drafts will be additional services. 3. Out-of-pocket expenses include all estimated costs for computer usage, telephone, fax and reproduction equipment, and postage. These costs have been included in the fee for services, including relevant software fees, if any. R 10rlandolElk RivedTA-ELKRIVER071111.DOCX Page3 TASK AUTHORIZATION Additional Services Additional services can be provided subject to modification of the Scope of Services and schedule, and establishment of a mutually agreeable adjustment to the fee for services. Amendment(s) to Terms of the Agreement None. IN WITNESS WHEREOF, the Parties have signed this Task Authorization as of the date first written above. ELK RIVER MUNICIPAL UTILITIES SAIC, ENERGY, ENVIROMENT & INFRASTRUCTURE,LLC Signature Name Title Signature Name Title ~~ Steven Stein Senior Project Manager R.IOrlandolElk RiverlTA-ELKRIVER071111.DOC% page4 MASTER PROFESSIONAL SERVICES AGREEMENT This MASTER PROFESSIONAL SERVICES AGREEMENT ("Agreement") is dated July 11, 2011 by and between SAIC Energy, Environment & Infrastructure, LLC ("Consultant" or "SEE&I"), with offices at 1000 Legion Place, Suite 1100, Orlando, FL 32801 and Elk River Municipal Utilities ("Client"), with offices at 13069 Orono Parkway, Elk River, MN 55330-0430, 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: Scope of Services: Consultant and Client agree Consultant will perform consulting services and independent engineering services as requested by Client from time to time. The services to be provided by Consultant shall be agreed to by the parties and authorized in a Task Authorization to this Agreement which sets forth the scope of services, intended purpose, schedule, budget, payment provisions and other special provisions, if any, related to the Scope of Services. Task Authorizations shall be incorporated into this Agreement and subject to its terms and shall be generally in the form shown in Exhibit A to this Agreement. 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, or through Task Authorizations for individual tasks, 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, will be in Task Authorizations for individual tasks. Services not expressly set forth therein 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 individual Task Authorizations shall be equitably adjusted, if necessary, to compensate Consultant for any additional costs due to the delay. rsr~/i°®r{ere YmOl SnenCC f0 $OtPi i0gg R:IOdandolElk RiverIMASTER PSA ELK RIVER MUNICIPAL UTILITIES.DOC MASTER PROFESSIONAL SERVICES AGREEMENT Between SAIC Energy, Environment & Infrastructure, LLC and Elk River Municipal Utilities 5. Fee for Services: The fee for services under a Task Authorization 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 a Task Authorization, or as otherwise set forth in a Task Authorization. 6. Payment: Unless otherwise indicated in a Task Authorization, Client shall pay Consultant for services furnished under a Task Authorization 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 rate 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. Notwithstanding the above, Client shat] pay the amount, if any, that is set forth in each Task Authorization as being due upon signing and before commencement of any work under such Task Authorization by Consultant as an advance payment, which shall be held as progress payment security and shall be applied to the last invoice submitted by Consultant for services provided under such Task Authorization. Client agrees to make additional Advance Payment as and if required from time to time in Consultant's sole discretion. 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 judgments in favor of any third party. R:IOtlantlolElk RiverIMASTER PSA_ELK RIVER MUNICIPAL UTILITIES.DOC page y MASTER PROFESSIONAL SERVICES AGREEMENT Between SAIC Energy, Environment & Infrastructure, LLC and Elk River Municipal Utilities Each party (the "First Party") specifically and expressly waives its immunity under applicable worker's compensation and industrial insurance Taws 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. If Consultant provides services at a construction site, Client agrees to use language acceptable to Consultant in all third party procurement, construction and/or EPC contracts relating to services furnished under this Agreement, including but not limited to terms which provide: contractor(s) shall indemnify and hold hazmless Client and Consultant from any and all loss, damage, claim, or liability (including, without limitation, reasonable attorneys' fees) incurred by Client or Consultant arising from work performed by contractor(s) or subcontractors; provided, however, that Client and Consultant shall not be indemnified for any loss, damage, claim, or liability resulting solely from the negligent acts, errors, or omissions of Client or Consultant; and each and every contractor (a) to purchase and maintain Commercial General Liability Insurance in limits appropriate for the size of the contract (b) to name the Client and Consultant as additional insureds. Client and Consultant will be added to the contractor's policy using ISO Endorsement CG2032 0798 or equivalent. 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 Employer's Liability Commercial General Liability Commercial Auto Liability Professional Liability Statutory U.S. $1,000,000 U.S. $1,000,000 per occurrence U.S. $1,000,000 aggregate U.S. $1,000,000 combined single limit U.S. $1,000,000 per claim and in the aggregate R:IOdandolElk RiverlNIASTER PSA ELK RIVER MUNICIPAL UTILITIES,DOC Page 3 MASTER PROFESSIONAL SERVICES AGREEMENT Between SAIC Energy, Environment & Infrastructure, LLC and Elk River Municipal Utilities ll. 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 furnish Work Products and copies thereof to the lenders and any potential financial parties, investors, underwriters, purchasers, advisors, representatives or other parties in connection with services for financing of a 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 liability of Consultant, its officers, directors, shareholders, employees and subconsultants for any and all claims arising out of a Task Authorization, including attorneys' fees, and whether caused by negligence, errors, omissions, strict liability, breach of contract or contribution, or indemnity claims based on third party claims, shall not exceed in the aggregate, the revenue received by Consultant under such Task Authorization or One Hundred Fifty Thousand Dollars (U.S. $150,000.00), whichever is greater, unless expressly identified otherwise in such Task Authorization. Such Task Authorization limitation of liability shall apply only to the services performed under each Task Authorization and shall not apply to or affect the liability for services performed under any other Task Authorization. Due to the limited scope and level of effort of the construction phase services of Consultant (if applicable), the Parties agree that the construction contractors and vendors will remain exclusively responsible for compliance with contract requirements. Any construction phase observation or inspection by Consultant is not intended to provide any assurances that deficiencies are discovered in the contractor's means, methods, techniques or practices or that such are suitable or adequate. Consultant has no legal or financial responsibility for claims against a contractor or vendor arising from a contractor's or vendor's failure to comply with its contract or warranty obligations. R:IOdandolElk Rivef~MASTER PSA ELK RIVER MUNICIPAL UTILITIES.DOC py9e q MASTER PROFESSIONAL SERVICES AGREEMENT Between SAIC Energy, Environment & Infrastructure, LLC and Elk River Municipal Utilities 13. No Consequential Damages: In no event and under no circumstances shall Consultant be liable to 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. 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 facility remains with the project owner, contractor, and/or operator. Employees of Consultant will not: a. Perform any of the responsibilities of Client, project owner, contractor, or operator. b. Expedite work for Client, project owner, contractor, or operator unless Client requests Consultant to do so and reimburses Consultant costs for expediting functions. c. Advise Client, project owner, contractor, or operator on safety precautions, procedures or programs. 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 Parry 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. R~.IOdandolElk RiverIMASTER PSA_ELK RIVER MUNICIPAL UTILITIES.DOC Page 5 MASTER PROFESSIONAL SERVICES AGREEMENT Between SAIC Energy, Environment & Infrastructure, LLC and Elk River Municipal Utilities 19. Dispute Resolution: The Parties shall attempt to resolve conflicts or disputes under this Agreement in a fair and reasonable manner and agree that if resolution cannot be made to attempt to mediate the conflict by a professional mediator (except for payment disputes which may be submitted directly to arbitration). If mediation does not settle any dispute or action which arises under this Agreement or which relates in any way to this Agreement or the subject matter of this Agreement within ninety (90) days after either requests mediation, the dispute or conflict shall be subject to 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. 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. 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 duty 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: R:IOdantlolElk RivedNIASTER PSA_ELK RIVER MUNICIPAL UTILITIES.DCC Page 6 MASTER PROFESSIONAL SERVICES AGREEMENT Between SAIC Energy, Environment & Infrastructure, LLC and Elk River Municipal Utilities Client: Mr. Troy Adams Attention: Elk River Municipal Utilities Address: 13069 Orono Parkway, Elk River, MN 55330-0430 Consultant: SAIC Energy, Environment & Infrastructure, LLC Attention: Mr. Sean Croup Address: 1000 Legion Place, Suite 1100, 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 731 I4 o. 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 Oklahoma except when services are provided for financing of a project, then the laws of the State of New York shall apply. £ 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. 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 Pally 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. R.IOdandolElk RiverlNIASTER PSA_ELK RIVER MUNICIPAL UTIUTIES.DDC Page 7 MASTER PROFESSIONAL SERVICES AGREEMENT Between SAIC Energy, Environment & Infrastructure, LLC and Elk River Municipal Utilities IN WITNESS WHEREOF, the Parties have signed this Agreement the date first written above. ELK RIVER MUNICIPAL UTILITIES Signature Name Title SAIC ENERGY, ENVIRONMENT & INFRASTRUCTURE, LLC %/ " -'"' Signature Name Steven Stein Title Senior Project Manager Exhibit A -Sample Task Authorization Exhibit B -Billing Rates Exhibit C -Form of Agreement for Use of Work Product R:10dandolElk RiverlNIASTER PSA_ELK RIVER MUNICIPAL UTILITIES.DOC page g EXHIBIT A TASK AUTHORIZATION Task Authorization Description: Effective Date: Client Name and Number: Contract No. (if any): Consultant and Client agree that this Task Authorization will be governed by the terms and conditions of the Agreement dated [DATE], as amended, unless specifically modified herein. Scope of Services (Detailed tasks to be performed. Include any project locations, deliverables, quantities, assumptions, client deliverables, team member names, roles, etc.) Schedule (Provide summary or detail level schedule of milestones.) Fee for Services (Provide summary or task level detail of cost. Note if the cost is a maximum not-to-exceed.) Advance Payment: None Or [Client shall pay $ upon signing and before commencement of any work by Consultant as Advance Payment, which shall be held as progress payment security and shall be applied to the last invoice submitted by Consultant for services provided under such Task Authorization.] Amendment(s) to Terms of the Agreement (Insert terms different than base agreement if applicable.) (e.g. Note if compensation arrangements deviate from that outlined in PSA (i.e., lump sum). Additional Services (Indicate if there are any optional tasks that may be related to the work performed in this TA that the client would authorize at a later date that may be a result of current task fandings, etc. Otherwise delete.) ~si i iC r n;~r 5'cie+a:e f[~.S'nluhnuF- MASTER PSA ELK RIVER MUNICIPAL UTILITIES.DDC Page ~ ~~I~I~! EXHIBIT A TASK AUTHORIZATION [Task Authorization Description] IN WITNESS WHEREOF, the Parties have signed this Task Authorization as of the date 5rst written above. [CLIENT NAME) Title MASTER PSA_ELK RIVER MUNICIPAL Ul SAIC ENERGY, ENVIRONMENT & INFRASTRUCTURE,LLC Title Effective Date: Page EXHIBIT B To Master Professional Services Agreement Between SAIC Energy, Environment & Infrastructure, LLC and Elk River Municipal Utilities Billing Rates 1 13.00 2 26.00 3 40.00 Clerical, Administration, Junior Engineers and 4 53.00 Technicians 5 66.00 6 79.00 7 92.00 8 106.00 Staff Engineers, Consultants 9 119.00 and Technicians 10 132.00 11 145.00 12 158.00 Senior Engineers, Consultants and Technicians, 13 172.00 and Project Managers 14 185.00 15 198.00 16 211.00 17 224.00 Executive Engineers and Consultants, Senior 18 238.00 Project Managers, and Principals 19 251.00 20 264.00 21 277.00 22 290.00 23 304.00 24 317.00 25 330.00 26 343.00 Executive Engineers and Consultants, Senior 27 356.00 Project Managers, and Senior Principals 28 370.00 29 383.00 30 396.00 31 409.00 'Salaries of personnel are subject to change in accordance with SAIC's annual salary atljusMent program =si ~ ii wap/~l/mow rYOl~l 5[r2rlC@ fo SnltlIIOf6' MASTER PSA ELK RIVER MUNICIPAL UTILITIES.DDC Date Page 1 EXHIBIT C To Master Professional Services Agreement Between SAIC Energy, Environment & Infrastructure, LLC and Elk River Municipal Utilities Form of Agreement with SAIC Energy, Environment & Infrastructure, LLC for Use of Work Products in connection with [Project Name] This serves to document the acknowledgement and agreement between [Third Party] ("Recipient") and SAIC Energy, Environment & Infrastructure, LLC ("SEE&I" or `9ndependent Engineer") with respect to the use of documents prepared by SEE&I when providing Independent Engineering Services related to the Plant located in , (herein, the "Project'). Effective (the "Client") and SEE&I executed a Professional Services Agreement ("PSA") for SEE&I 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 with ClienC and/or other analyses, data or information prepared by SEE&I (collectively "Work Products"). In consideration of SEE&I providing Work Products to Recipient, Recipient agrees as follows: 1. The services to be provided by SEE&i 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 SEE&I. 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 SEE&I's prior written consent. 4. No employee of SEE&I shall have individual liability to Recipient. To the extent permitted by law, the total aggregate liability of SEE&I 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 SEE&I 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. ~.:. ~ :: elf ,. ~~, 61irrn:e ~~ ~ ~,.'n!ln.~~. MASTER PSA_ELK RIVER MUNICIPAL UTILI7IES.DDC Date Page 1 EXHIBIT C To Master Professional Services Agreement Between SAIC Energy, Environment & Infrastructure, LLC and Elk River Municipal Utilities 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. 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 ©SAIC Energy, Envirottment & Infrastructure, LLC All Rights Reserved OOOOOOIMASTER PSA ELK RIVER MUNICIPAL UTILITIES.DOC Dale Page