HomeMy WebLinkAboutRESO 9616160728 jb 6053803
Resolution No. 9616
Resolution of the Council of the City of Palo Alto Authorizing the City Manager to
Execute the Fiscal Year 2017 Professional Services Agreement Between the Northern
California Power Agency and the Cities of Palo Alto and Santa Clara For Electric
Transmission, Generation and Regulatory Consulting Services, and Repealing
Resolution No. 9604
R E C I T A L S
A. The C
B. In 2003, Palo Alto, along with two other NCPA members, the Cities of Alameda and
Santa Clara, formed the Bay Area Municip
provide professional consulting services related to electric transmission, power generation,
regulatory issues, and electric market design issues affecting the BAMx members.
C. Since 2003, NCPA has con
provide these consulting services to the BAMx members.
D. The current contract between NCPA and Flynn RCI expires on June 30, 2016 and NCPA is
amending the contract with Flynn RCI to continue to provide these consulting services for Fiscal
Year (FY) 2017.
E. In 2015, the City of Oakland, acting by and through its Board of Port Commissioners (the
of Oakland to their membership.
F. In 2016, the Port of Oakland and City of Alameda both withdrew from BAMx membership
G. For consulting agreements executed by NCPA on behalf of one, or a subset of, NCPA
members, NCPA requires that those members enter into a Professional Services Agreement with
NCPA.
H. The Professional Services Agreement between the BAMx members and NCPA specifies
the terms and conditions under which NCPA will procure the requested professional consulting
services from Flynn RCI and allocate charges between the BAMx members.
I. The Council approved a version of the FY 2017 Professional Services Agreement at its
June 20, 2016 meeting, but the final version of the Agreement incorrectly
percentage share of the contract by 1.1%, resulting in a higher nottoexceed amount than was
authorized by the Council in Resolution No 9604. The Council now wishes to approve the attached
version of the FY 2017 Agreement and repeal Resolution No. 9604 which included the prior version
//
//
(SGY7MKR)RZIPSTI-( *(%* ( %*%' *)
160728 jb 6053803
The Council of the City of Palo Alto RESOLVES as follows:
SECTION 1. The Council authorizes the City Manager, or his designee, to execute the Fiscal
Year 2017 Professional Services Agreement between the Northern California Power Agency and the
Cities of Palo Alto and Santa Clara for Electric Transmission, Generation, and Regulatory Consulting
services (Attachment B), in an amount not to exceed $153,855 for the one year
contract term.
SECTION 2. Resolution No. 9604, which approved a prior version of the Fiscal Year 2017
cost, is repealed.
SECTION 3. The I contract
are 2017.
//
//
//
//
//
//
//
//
//
//
//
(SGY7MKR)RZIPSTI-( *(%* ( %*%' *)
160728 jb 6053803
SECTION 4. The Council finds that the adoption of this resolution does not require review
under the California Environmental Quality Act, because it does not meet Public Resources Code
Section 15378(b)(3) of the CEQA Guidelines provides that
ties of governments that will not result in direct or indirect
INTRODUCED AND PASSED: August 15, 2016
AYES: BERMAN, BURT, DUBOIS, FILSETH, HOLMAN, KNISS, SCHARFF, SCHMID, WOLBACH
NOES:
ABSENT:
ABSTENTIONS:
ATTEST:
City Clerk Mayor
APPROVED AS TO FORM: APPROVED:
Senior Deputy City Attorney City Manager
Director of Utilities
Director of Administrative Services
(SGY7MKR)RZIPSTI-( *(%* ( %*%' *)
1
BAMx PROFESSIONAL SERVICES AGREEMENT
PROFESSIONAL SERVICES AGREEMENT BETWEEN
NORTHERN CALIFORNIA POWER AGENCY
AND THE CITIES OF PALO ALTO AND SANTA CLARA
(THE "BAY AREA MUNICIPAL TRANSMISSION SERVICES AGREEMENT" OR "BAMx
AGREEMENT")
This Professional Services Agreement is made by and between the
NORTHERN CALIFORNIA POWER AGENCY a joint powers agency, and the Cities of
Palo Alto and Santa Clara (each referred to as a "Contracting Member" and jointly referred to as
or "BAMx Participants"). NCPA and the Contracting Members are together
sometimes referred to herein individually as a and collectively as
This Agreement is made as of , 2016 (the in Roseville,
California.
Section 1. RECITALS
This Agreement is entered into based on the following facts, among others:
1.1 NCPA is a public agency created by a joint powers agreement established under
California law for the purpose of assisting its members in the efficient use of their common powers.
1.2 Contracting Members are engaged in, among other things, transmitting and
distributing electric power within their respective corporate limits. Contracting Members are also
each a member of NCPA. Contracting Members jointly desire that NCPA provide Contracting
Members with the Services described in this Agreement.
1.3 Article III, section 3 of the and Restated Northern California Power
Agency Joint Powers (as amended and effective January 1, 2008) (hereinafter
entitled and provides that "none of the debts, liabilities or obligations of NCPA
shall be the debts, liabilities or obligations of any of the members of NCPA unless assumed in a
particular case by resolution of the governing body of the member to be charged." Notwithstanding
the foregoing, Article V, section 1 of the JPA entitled provides that
governing Commission of NCPA is authorized to procure public liability and other insurance as it
deems advisable to protect NCPA and each of the parties hereto, charging the cost thereof to the
operating costs of
1.4 Contracting Members desire to secure Services under this Agreement in a
manner that balances their interests and the interests of other NCPA members with the ongoing
financial viability and professional responsibilities of NCPA. Accordingly, Contracting Members
desire to secure Services under this Agreement by accepting a limited insurance based
recourse against NCPA, with the option of procuring additional insurance at Contracting Members'
sole expense. By so doing, the Parties thereby ensure that NCPA will substantially limit its risk for
the provision of such Services and allocates risks back to the Contracting Members in the event
NCPA is not adequately insured.
DocuSign Envelope ID: F44D0AF9-5092-4D33-87A5-F4AC391F036E
2
BAMx PROFESSIONAL SERVICES AGREEMENT
1.5 The Parties have previously entered into a professional services agreement for this
same purpose dated as of July 1, 2015 Prior the term of which ends on June 30,
2016.
NOW THEREFORE, in consideration of the mutual covenants and promises set forth, NCPA
and Contracting Members agree as follows:
Section 2. DEFINITIONS
Whenever used in this Agreement with initial capitalization, these terms shall have the
following meanings as applicable, whether in the singular or plural:
2.1 Utility shall mean any of the practices, methods and acts engaged
in or approved by a significant portion of the electric utility industry during the relevant time period,
or any of the practices, methods and acts which, in the exercise of reasonable judgment in light of
the facts known at the time the decision was made, could have been expected to accomplish the
desired result of the lowest reasonable cost consistent with good business practices, reliability,
safety and expedition and the requirements of the Northern American Electric Reliability
Corporation ("NERC") or Western Electric Coordinating Council ("WECC") Good Utility Practice is
not intended to be limited to the optimum practice, method, or act to the exclusion of all others, but
rather to be acceptable practices, methods, or acts generally accepted in the region.
2.2 shall mean the signatories to the JPA or those agencies which
have executed an Associate Member Agreement with NCPA.
2.3 shall mean all costs incurred by NCPA in providing Services to
Contracting Members under this Agreement that could not reasonably be avoided by NCPA from
the date it receives a written Notice of Termination. Such costs may include, but not be limited to,
salary and employment costs, rent, utilities, or contracts incurred to provide Services under this
Agreement. In this regard, Contracting Members acknowledge that NCPA will be entering into
professional services agreements with third persons under the terms of this Agreement, and that
sums owing to such third persons may become Stranded Costs upon termination of this
Agreement.
2.4 shall mean any act of God, labor disturbance, act of the
public enemy, war, insurrection, riot, fire, storm, flood, earthquake, explosion, any curtailment,
order, regulation or restriction imposed by governmental, military or lawfully established civilian
authorities or any other cause beyond the reasonable control which could not be avoided through
the exercise of Good Utility Practice.
Section 3. SERVICES TO BE PROVIDED; AUTHORIZED REPRESENTATIVES; STANDARD
OF PERFORMANCE
3.1 This Agreement is entered into by the Parties in order for NCPA to provide services
to Contracting Members for the services described in Exhibit A hereto The Services
DocuSign Envelope ID: F44D0AF9-5092-4D33-87A5-F4AC391F036E
3
BAMx PROFESSIONAL SERVICES AGREEMENT
do not include supervision of the performance of any of the third persons with whom contracts are
entered into; such supervision shall be provided by the Contracting Members.
3.2 The following are the authorized representatives of the Parties
for contract administration purposes under this Agreement:
NCPA:
David Dockham, Dave.Dockham@ncpa.com
Assistant General Manager
Northern California Power Agency
651 Commerce Drive
Roseville, CA 95678
916-781-4207
Fax 916-781-4255
PALO ALTO:
Debra Lloyd, Debra.LLoyd@cityofpaloalto.org
Utilities Compliance Manager
City of Palo Alto
P.O. Box 10250
Palo Alto, CA 94303
650-329-2369
Fax: 650-326-1507
SANTA CLARA:
Joyce Kinnear, JKinnear@SantaClaraCA.gov
Division Manager
1601 Civic Center Dr. # 201
Santa Clara, CA 95050
408-615-6656
Fax 408-261-2717
No Authorized Representative is authorized to amend any provision of this Agreement except
in accordance with Section 12.16.
3.3 Standard of Performance. NCPA will perform the Services using that level of skill
and attention reasonably required to complete the Services in a competent and timely manner.
3.4 Assignment of Personnel. NCPA shall assign only competent personnel to perform
Services pursuant to this Agreement. In the event that Contracting Members, in their sole
discretion, at any time during the term of this Agreement, jointly desire the reassignment of any
such persons, NCPA shall, immediately upon receiving notice from each Contracting Member of
such desire of the Contracting Members, reassign such person or persons.
3.5 Time. NCPA shall devote such time to the performance of Services pursuant to this
Agreement as may be reasonably necessary to meet the standard of performance provided in
Section 3.3, above and to satisfy obligations hereunder.
DocuSign Envelope ID: F44D0AF9-5092-4D33-87A5-F4AC391F036E
4
BAMx PROFESSIONAL SERVICES AGREEMENT
Section 4. TERM AND TERMINATION
4.1 Authorization to Perform Services. NCPA is not authorized to perform any Services
or incur any costs whatsoever under the terms of this Agreement until its receipt of a written
resolution and/or other appropriate/applicable authorization from each Contracting
governing body confirming each Contracting authority to enter into this Agreement and
confirming that each Contracting Member has allocated funds for and approved contract payments
to NCPA under this Agreement.
4.2 Term. The term of this Agreement shall begin on the Effective Date and shall end
on June 30, 2017.
4.3 Early Termination and Stranded Costs. This Agreement may be terminated by
either NCPA or by the Contracting Members, upon 30 days written notice to all other Parties
of Provided, however, that a Notice of Termination on behalf of the
Contracting Members shall be executed by each Contracting Member to be effective.
In the event of an early termination, Contracting Members shall pay NCPA for all fees and
costs required under this Agreement through the effective date of their Notice of Termination plus
all Stranded Costs. Upon payment of the above amounts, no Parties shall have any further
obligations under this Agreement except as otherwise set forth in Section 5.7 regarding the survival
of defense and indemnity obligations.
Section 5. INDEMNITY AND INSURANCE
5.1 Limitation of NCP Liab ility.
5.1.1 Except as provided in this section 5.1, NCPA shall not at any time be liable for
any injury or damage occurring to Contracting Members or any other person or property from any
cause whatsoever arising out of this Agreement.
5.1.2 The provisions of section 5.1.1 shall not apply where the injury or damage
occurring to Contracting Members is caused by the negligence of NCPA or of any employee, agent
or contractor of NCPA; provided that any liability under this subsection is limited to the extent of the
actual coverage and coverage limits of the NCPA insurance policies described in this Section 5.
5.1.3 Notwithstanding Section 5.1.2 above, the Contracting Members agree to
reimburse NCPA, in a timely manner, for all deductibles and/or self-insured retentions payable for
any claim, liability or damage arising out of this Agreement.
5.2 Indemnification of NCPA. Except as specified in Section 5.1.2 above, Contracting
Members shall, at their sole cost and expense, indemnify and hold harmless NCPA and all
associated, affiliated, allied, member and subsidiary entities of NCPA, now existing or hereinafter
created, and their respective officers, boards, commissions, employees, agents, attorneys, and
contractors (hereinafter referred to as from and against any and all liability,
obligation, damages, penalties, claims, liens, costs, charges, losses and expenses (including,
DocuSign Envelope ID: F44D0AF9-5092-4D33-87A5-F4AC391F036E
5
BAMx PROFESSIONAL SERVICES AGREEMENT
without limitation, reasonable fees and expenses of attorneys, expert witnesses and consultants),
which may be imposed upon, incurred by or be asserted against the Indemnitees arising out of this
Agreement.
5.3 Defense of Indemnitees. In the event any action or proceeding shall be brought
against the Indemnitees by reason of any matter for which the Indemnitees are indemnified
hereunder, Contracting Members shall, upon reasonable prior written notice from any of the
Indemnitees, at Contracting Members' sole cost and expense, resist and defend the same with
legal counsel mutually selected by Indemnitee and the Contracting Members, unless mutual
selection of counsel is expressly prohibited by an applicable insurance policy; provided however,
that neither Indemnitee nor Contracting Members shall admit liability in any such matter or on
behalf of the other without express written consent, which consent shall not be unreasonably
withheld or delayed, nor enter into any compromise or settlement of any claim for which
Indemnitees are indemnified hereunder without prior express written consent. The Contracting
Members' duty to defend shall begin upon receipt of a written notice identifying with specificity the
allegations that give rise to this duty to defend.
5.4 Notice. The Parties shall give each other prompt notice of the making of any claim
or the commencement of any action, suit or other proceeding covered by the provisions of this
Section 5.
5.5 Insurance. During the term of the Agreement and prior to beginning any work
under this Agreement, NCPA shall maintain, or cause to be maintained, in full force and effect, and
at its sole cost and expense, the types and limits of insurance as are annually approved by the
governing Commission of NCPA. The types and limits of insurance that are applicable to this
Agreement are evidenced by list of insurance coverages which is attached hereto as Exhibit C.
NCPA warrants and represents that the types of insurance and coverage limits shown in Exhibit C
are in full force and effect and shall remain so during the term of this Agreement unless NCPA
gives prior written notification (of not less than 15 days) of modification, cancellation or rescission
of such coverage.
5.6 Contracting Members' Acknowledgment of Option to Secure Additional Insurance.
The Contracting Members acknowledge that there are limitations on liability to the
Contracting Members under this Section 5 and that the Contracting Members may need to
purchase additional insurance of their own to cover the additional risks and the potential additional
liabilities they are assuming under this Agreement. Contracting Members agree that they will, with
respect to any additional insurance they obtain or which is otherwise available to Contracting
Members, cause their insurers to issue an endorsement providing a waiver of subrogation rights as
to Indemnitees.
5.7 Survival of Obligations. The defense and indemnity obligations of Section 5 shall
survive the termination of this Agreement.
Section 6. COMPENSATION
6.1 Charges and Reserves.
DocuSign Envelope ID: F44D0AF9-5092-4D33-87A5-F4AC391F036E
6
BAMx PROFESSIONAL SERVICES AGREEMENT
6.1.1. Monthly Charges. Charges for the Services provided hereunder shall be the
sum of (a) and (b) below, and shall be billed separately to each BAMx Participant in accordance
with Exhibit B:
Six Hundred Twenty Five Dollars ($625) per month for services provided by
NCPA to the BAMx Participants under this Agreement; and
Fifty Four Thousand One Hundred Sixty Seven Dollars ($54,167) per month
for services provided to the BAMx Participants directly by Flynn Resource
Consultants Inc., under the CONSULTING SERVICES AGREEMENT
BETWEEN THE NORTHERN CALIFORNIA POWER AGENCY AND FLYNN
RESOURCE CONSULTANTS INC., dated , 2016.
6.1.2 Security Deposit. Contracting Members shall each maintain on deposit in its
General Operating Reserve Account held at NCPA the sum of Zero Dollars ($0) as security to
NCPA for liabilities NCPA could incur under this Agreement. Contracting Members hereby
authorize NCPA to reserve and commit this sum in its General Operating Reserve Account for the
payment of the aforementioned liabilities should same become necessary. Interest on monies held
by NCPA pursuant to this section shall be credited in accordance with the then standard practices
of NCPA relating to the General Operating Reserve Account.
Section 7. BILLING AND PAYMENT
7.1 Invoices. NCPA shall submit invoices to Contracting Members, not more often than
once a month during the term of this Agreement, for Services performed and reimbursable costs
incurred prior to the invoice date.
7.2 Monthly Payment. Contracting Members shall make monthly payments, based on
invoices received, for Services performed, and for authorized reimbursable costs incurred.
Contracting Members shall have thirty (30) days from the receipt of an invoice that complies with all
of the requirements above to pay NCPA. Any amount due on a day other than a business day, i.e.,
any day except a Saturday, Sunday, or a Federal Reserve Bank holiday, may be paid on the
following business day.
If all or any portion of a bill is disputed by Contracting Members, the entire amount of the bill
shall be paid when due, and s Authorized Representative shall be concurrently provided
written notice of the disputed amount and the basis for the dispute. NCPA shall reimburse any
amount determined to have been incorrectly billed, within ten (10) days after such determination.
Amounts which are not paid when due shall bear interest computed on a daily basis until paid
at the lesser of (i) the per annum prime rate (or reference rate) of the Bank of America NT & SA, or
its successor, then in effect, plus two per cent (2%) or (ii) the maximum rate permitted by law. The
provisions of this Section 7 shall survive expiration of this Agreement until satisfied.
7.3 Contracting Members shall pay for the Services pursuant to this Agreement.
Contracting Members shall not pay any additional sum for any expense or cost whatsoever
DocuSign Envelope ID: F44D0AF9-5092-4D33-87A5-F4AC391F036E
7
BAMx PROFESSIONAL SERVICES AGREEMENT
incurred by NCPA in rendering Services pursuant to this Agreement. Contracting Members shall
make no payment for any extra, further, or additional service pursuant to this Agreement.
In no event shall NCPA submit any invoice for an amount in excess of the maximum amount
of compensation provided above either for a task or for the entire Agreement, unless the
Agreement is modified prior to the submission of such an invoice by a properly executed change
order or amendment in accordance with this Agreement.
7.4 Hourly Fees. Fees for work performed by NCPA on an hourly basis shall not
exceed the amounts shown on the following fee schedule attached hereto as Exhibit B.
7.5 Reimbursable Expenses. Reimbursable expenses are specified in Exhibit B.
Expenses not listed in Exhibit B are not chargeable to Contracting Members. Reimbursable
expenses are included in the total amount of compensation provided under this Agreement that
shall not be exceeded.
7.6 Payment of Taxes. NCPA is solely responsible for the payment of employment
taxes incurred under this Agreement and any similar federal or state taxes.
7.7 Payment upon Termination. In the event that Contracting Members or NCPA
terminates this Agreement pursuant to Section 4, Contracting Members shall compensate the
NCPA for all outstanding costs and reimbursable expenses incurred for work satisfactorily
completed as of the date of written Notice of Termination. NCPA shall maintain adequate logs and
timesheets in order to verify costs incurred to that date.
7.8 Authorization to Perform Services. NCPA is not authorized to perform any Services
or incur any costs whatsoever under the terms of this Agreement until receipt of authorization from
each of the Contracting Members Authorized Representative following receipt of the required
approvals under the terms of this Agreement.
7.9 The addresses of Contracting Members to which invoices shall be sent is:
Debra Lloyd
Utilities Compliance Manager
City of Palo Alto
P.O. Box 10250
Palo Alto, CA 94303
650-329-2369
Fax: 650-326-1507
Bob Kazlauskas
City of Santa Clara
Attn: Electric Department
1500 Warburton Ave
Santa Clara, CA 95050
Bkazlauskas@svpower.com
408-615-6688
Fax: 408-261-2717
DocuSign Envelope ID: F44D0AF9-5092-4D33-87A5-F4AC391F036E
8
BAMx PROFESSIONAL SERVICES AGREEMENT
Section 8. STATUS OF NCPA; FACILITIES AND EQUIPMENT
8.1 Independent Contractor. At all times during the term of this Agreement, NCPA shall
be an independent contractor and shall not be an employee of Contracting Members. Contracting
Members shall have the right to control NCPA only insofar as the results of NCPA's Services
rendered pursuant to this Agreement and assignment of personnel pursuant to Section 3.4;
however, otherwise Contracting Members shall not have the right to control the means by which
NCPA accomplishes Services rendered pursuant to this Agreement. Notwithstanding any other
agency, state, local or federal policy, rule, regulation, law, or ordinance to the contrary, NCPA and
any of its employees, agents, and subcontractors providing Services under this Agreement shall
not qualify for or become entitled to, and hereby agree to waive any and all claims to, any
compensation, benefit, or any incident of employment by Contracting Members, including but not
limited to eligibility to enroll in the California Public Employees Retirement System (PERS) as an
employee of Contracting Member and entitlement to any contribution to be paid by Contracting
Members for employer contributions and/or employee contributions for PERS benefits.
8.2 Facilities and Equipment. The facilities and equipment that may be necessary to
perform the Services required by this Agreement shall be provided as follows: None.
Section 9. UNCONTROLLABLE FORCES
9.1 Obligations of the Parties, other than those to pay money when due, shall be
excused for so long as and to the extent that failure to perform such obligations is due to an
Uncontrollable Force; provided, however, that if either Party is unable to perform due to an
Uncontrollable Force, such Party shall exercise due diligence to remove such inability with
reasonable dispatch. Nothing contained in this Agreement shall be construed as requiring a Party
to settle any strike, lockout, or labor dispute in which it may be involved, or to accept any permit,
certificate, contract, or any other service agreement or authorization necessary for the performance
of this Agreement which contains terms and conditions which a Party determines in its good faith
judgment are unduly burdensome or otherwise unacceptable.
9.2 Each Party shall notify the other promptly, by telephone to the other
operating personnel and Authorized Representative identified in Section 3.2, upon becoming aware
of any Uncontrollable Force which may adversely affect the performance under this Agreement. A
Party shall additionally provide written notice in accordance with Section 12.8 to the other Party
within 24 hours after providing. Each Party shall notify the other promptly, when an Uncontrollable
Force has been remedied or no longer exists.
Section 10. LEGAL REQUIREMENTS
10.1 Governing Law. The laws of the State of California shall govern this Agreement,
without regard for the choice of law doctrine.
10.2 Compliance with Applicable Laws. NCPA and any subcontractors shall comply with
DocuSign Envelope ID: F44D0AF9-5092-4D33-87A5-F4AC391F036E
9
BAMx PROFESSIONAL SERVICES AGREEMENT
all laws applicable to the performance of the Services hereunder.
10.3 Other Governmental Regulations. To the extent that this Agreement may be
funded by fiscal assistance from another governmental entity, NCPA and any subcontractors shall
comply with all applicable rules and regulations to which Contracting Member is bound by the
terms of such fiscal assistance program.
10.4 Licenses and Permits. NCPA represents and warrants to Contracting Member that
NCPA and its employees, agents, and any subcontractors have all licenses, permits, qualifications,
and approvals of whatsoever nature that is legally required to practice their respective professions.
NCPA represents and warrants to Contracting Member that NCPA and its employees, agents, any
subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of
this Agreement any licenses, permits, and approvals that are legally required to practice their
respective professions.
10.5 Nondiscrimination and Equal Opportunity. NCPA shall not discriminate, on the
basis of a race, religion, color, national origin, age, physical or mental handicap or
disability, medical condition, marital status, sex, or sexual orientation, against any employee,
applicant for employment, subcontractor, bidder for a subcontract, or participant in, recipient of, or
applicant for any services or programs provided by NCPA under this Agreement. NCPA shall
comply with all applicable federal, state, and local laws, policies, rules, and requirements related to
equal opportunity and nondiscrimination in employment, contracting, and the provision of any
services that are the subject of this Agreement, including but not limited to the satisfaction of any
positive obligations required of NCPA thereby.
NCPA shall include the provisions of this Subsection in any subcontract approved by
Contracting Members' Authorized Representatives or permitted by this Agreement.
Section 11. KEEPING AND STATUS OF RECORDS.
11.1 Reco rds Created as Part of NCP Performance. All reports, data, maps, models,
charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or
any other documents or materials, in electronic or any other form, that NCPA prepares or obtains
pursuant to this Agreement and that relate to the matters covered hereunder shall be the property
of the Contracting Members. NCPA hereby agrees to deliver those documents to the Contracting
Members upon termination of the Agreement. It is understood and agreed that the documents and
other materials, including but not limited to those described above, prepared pursuant to this
Agreement are prepared specifically for the Contracting Members and are not necessarily suitable
for any future or other use. Contracting Members and NCPA agree that, until final approval by
Contracting Members, all data, plans, specifications, reports and other documents are confidential
and will not be released to third parties without prior written consent of both Parties, except as may
otherwise be required by applicable law.
11.2 NCP Books and Records. NCPA shall maintain any and all ledgers, books of
account, invoices, vouchers, canceled checks, and other records or documents evidencing or
relating to charges for services or expenditures and disbursements charged to the Contracting
Members under this Agreement for a minimum of three (3) years, or for any longer period required
DocuSign Envelope ID: F44D0AF9-5092-4D33-87A5-F4AC391F036E
10
BAMx PROFESSIONAL SERVICES AGREEMENT
by law, from the date of final payment to the NCPA to this Agreement.
11.3 Inspection and Audit of Records. Any records or documents that Section 11.2 of
this Agreement requires NCPA to maintain shall be made available for inspection, audit, and/or
copying at any time during regular business hours, upon oral or written request of the Contracting
Member. Under California Government Code Section 8546.7, if the amount of public funds
expended under this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), the
Agreement shall be subject to the examination and audit of the State Auditor, at the request of any
Contracting Member or as part of any audit of any of the Contracting Members, for a period of
three (3) years after final payment under the Agreement.
11.4 Confidential Information and Disclosure. During the term of this Agreement, any
Party may disclose confidential, proprietary or trade secret information (the
to another Party All such Information made available in a
tangible medium of expression (such as, without limitation, on paper or by means of magnetic
tapes, magnetic disks or other computer media) shall be marked in a prominent location to indicate
that it is the confidential, proprietary and trade secret information of Disclosing Party at the time of
disclosure to Receiving Party. Receiving Party shall hold Disclosing Information in
confidence and shall take all reasonable steps to prevent any unauthorized possession, use,
copying, transfer or disclosure of such Information. Receiving Party shall not attempt to reverse
engineer or in any manner create any product or information which is similar in appearance to or
based on the Information provided by Disclosing Party. Receiving Party shall not disclose
Disclosing Information to any person other than Receiving employees, agents,
contractors and subcontractors who have a need to know in connection with this Agreement.
Receiving confidentiality obligations hereunder shall not apply to any portion
of Disclosing Information which:
Has become a matter of public knowledge other than through an act or omission of
Receiving Party;
Has been made known to Receiving Party by a third party in accordance with such
third legal rights without any restriction on disclosure;
Was in the possession of Receiving Party prior to the disclosure of such
Information by Disclosing Party and was not acquired directly or indirectly from the
other Party or any person or entity in a relationship of trust and confidence with the
other Party with respect to such Information;
Receiving Party is required by law to disclose; or
Has been independently developed by Receiving Party from information not
defined as "Information" in this Agreement, as evidenced by Receiving Party's
written records.
Receiving Party shall return or destroy Information (including all copies
thereof) to Disclosing Party promptly upon the earliest of any termination of this Agreement or the
written request. Notwithstanding the foregoing, Receiving Party may retain one
copy of such Information solely for archival purposes, subject to the confidentiality provisions of this
Agreement. The parties understand that each Party is a public entity and is subject to the laws that
may compel either to disclose information about the business.
DocuSign Envelope ID: F44D0AF9-5092-4D33-87A5-F4AC391F036E
11
BAMx PROFESSIONAL SERVICES AGREEMENT
Section 12. MISCELLANEOUS PROVISIONS
12.1 Attorne Fees. If a Party to this Agreement brings any action, including an action
for declaratory relief, to enforce or interpret the provisions of this Agreement, the prevailing Party
shall be entitled to reasonable fees in addition to any other relief to which that Party may
be entitled. The court may set such fees in the same action or in a separate action brought for that
purpose.
12.2 Venue. In the event that either Party brings any action against the other under this
Agreement, the Parties agree that trial of such action shall be vested exclusively in the state courts
of California in the County of Placer or in the United States District Court for the Eastern District of
California.
12.3 Severability. If any provision of this Agreement shall be determined by a court of
competent jurisdiction to be invalid, void or unenforceable, or if any provision of this Agreement is
rendered invalid or unenforceable by federal or state statute or regulation, but the remaining
portions of the Agreement can be enforced without failure of material consideration to any Party,
then the remaining provisions shall continue in full force and effect. To that end, this Agreement is
declared to be severable. Provided, however, that in the event any provision is declared to be
invalid, void or unenforceable, any Party may terminate this Agreement upon 10 days written notice
given within five (5) days of receipt of notice of final entry of judgment.
12.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision of
this Agreement does not constitute a waiver of any other breach of that term or any other term of
this Agreement.
12.5 Successors and Assigns. The provisions of this Agreement shall inure to the
benefit of and shall apply to and bind the successors and assigns of the Parties.
12.6 Use of Recycled Products. NCPA shall endeavor to prepare and submit all reports,
written studies and other printed material on recycled paper to the extent it is available at equal or
less cost than virgin paper.
12.7 Conflict of Interest. NCPA shall not employ any Contracting Members' official or
employee in the work performed pursuant to this Agreement. No officer or employee of
Contracting Member shall have any financial interest in this Agreement that would violate California
Government Code Sections 1090 et seq.
12.8 Notices. Unless this Agreement requires otherwise, any notice, demand or request
provided for in this Agreement, or served, given or made shall become effective when delivered in
person, or sent by registered or certified first class mail, to the persons specified below:
NCPA:
David Dockham
Assistant General Manager Power Management
Northern California Power Agency
DocuSign Envelope ID: F44D0AF9-5092-4D33-87A5-F4AC391F036E
12
BAMx PROFESSIONAL SERVICES AGREEMENT
651 Commerce Drive
Roseville, CA 95678
With a copy to:
Michael F. Dean
General Counsel, Northern California Power Agency
c/o Meyers Nave
555 Capitol Mall, Suite 1200
Sacramento, CA 95814
PALO ALTO:
Ed Shikada
Assistant City Manager & Interim Utilities Director
City of Palo Alto
P.O. Box 10250
Palo Alto, CA 94303
With a copy to:
Amy Bartell, Senior Deputy City Attorney
City of Palo Alto
City office
P.O. Box 10250
Palo Alto, CA 94303
SANTA CLARA:
Joyce Kinnear, Division Manager
City of Santa Clara
1500 Warburton Ave
Santa Clara, CA 95050
With a copy to:
Richard Nosky, City Attorney
City of Santa Clara
1500 Warburton Ave
Santa Clara, CA 95050
Whenever it is required, permitted, or desired in this Agreement that written notice or demand
be given by any Party to any other Party, such notice or demand may be either personally served
or sent by United States Mail, or facsimile. Notice shall be deemed to have been given when
personally served, when deposited in the United States Mail, certified or registered with postage
prepaid and properly addressed, or when transmitted by facsimile provided however, notices
delivered by facsimile shall only be effective if delivered during regular business hours on a day
that is considered a regular business day for NCPA by the involved Parties.
12.9 Integration; Incorporation. This Agreement, including all the exhibits attached
hereto, represents the entire and integrated agreement between Contracting Members and NCPA
relating to the subject matter of this Agreement, and supersedes all prior negotiations,
DocuSign Envelope ID: F44D0AF9-5092-4D33-87A5-F4AC391F036E
13
BAMx PROFESSIONAL SERVICES AGREEMENT
representations, or agreements, either written or oral. All exhibits attached hereto are incorporated
by reference herein.
12.10 Dispute Resolution. If any dispute arises between the Parties that cannot be
settled after engaging in good faith negotiations, Contracting Members and NCPA agree to resolve
the dispute in accordance with the following:
12.10.1 Each Party shall designate a senior management or executive level
representative to negotiate any dispute;
12.10.2 The representatives shall attempt, through good faith negotiations, to resolve the
dispute by any means within their authority.
12.10.3 If the issue remains unresolved after sixty (60) days of good faith negotiations,
despite having used their best efforts to do so, either Party may pursue whatever other remedies
may be available to it.
12.10.4 This informal resolution process is not intended to nor shall be construed to
change the time periods for filing a claim or action specified by Government Code § 900, et seq.
12.11 Other Agreements. This Agreement is not intended to modify or change any other
agreement between any of the Parties, individually or collectively. Without limiting the generality of
the foregoing, this Agreement does not amend or extend the Prior Agreement.
12.12 Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be an original and all of which together shall constitute one agreement.
12.13 Obligations of Contracting Members Joint and Several; No Joint Venture. The
duties, obligations and liabilities of the Contracting Members, including the obligations to make
payments to NCPA, are intended to be joint and several. Provided that nothing contained in this
Agreement shall be construed to create an association, trust, partnership or joint venture or to
impose a trust or partnership duty, obligation or liability on or with regard to the Contracting
Members.
12.14 Effect of Section Headings. Section headings and subheadings appearing in this
Agreement are inserted for convenience only and shall not be construed as interpretation of text.
12.15 Authority of Signatories. The signatories hereby represent that they have been
appropriately authorized to execute this Agreement on behalf of the Party for whom they sign.
12.16 Amendments. The Parties may amend this Agreement only by a writing signed by
all the Parties following each of written resolution/authorization from their governing
bodies, which resolutions/authorizations shall be condition precedents to any amendments of this
Agreement and shall be attached as exhibits to this Agreement.
The Parties have executed this Agreement as of the Effective Date.
DocuSign Envelope ID: F44D0AF9-5092-4D33-87A5-F4AC391F036E
14
BAMx PROFESSIONAL SERVICES AGREEMENT
Northern California Power Agency
RANDY S. HOWARD, General Manager
Attest:
Assistant Secretary of the Commission
Approved as to Form:
General Counsel
DocuSign Envelope ID: F44D0AF9-5092-4D33-87A5-F4AC391F036E
15
BAMx PROFESSIONAL SERVICES AGREEMENT
CONTRACTING MEMBERS:
CITY OF PALO ALTO Approved as to Form:
By: By:
Attorney
Its:
CITY OF SANTA CLARA Approved as to Form
By: By:
Attorney
Its:
DocuSign Envelope ID: F44D0AF9-5092-4D33-87A5-F4AC391F036E
16
BAMx PROFESSIONAL SERVICES AGREEMENT
EXHIBIT A
Scope of Services
NCPA shall perform the following Services on behalf Contracting Members:
NCPA will enter into a contract with Flynn Resource Consulting Inc. ("Consultant") on behalf of
Contracting Members. In general Consultant will provide services including monitoring, meeting
participation, coordinating with affected or other participating parties, and, as necessary, preparing
and submitting formal position submittals for the following activities:
1. Grid Planning Activities
CAISO Regionalization Process, Transmission Access Charge, Governance and
Resource Adequacy
Coordination with the California Municipal Utilities Association and Northern
California Power Agency on these activities
CAISO/PG&E annual transmission expansion planning process
Support or oppose specific transmission additions
Greater Bay Area long term studies
CAISO local capacity technical study process
Other regional and sub-regional transmission planning activities
CAISO Tariff and BPM Change Management Process
Generator Interconnection Procedure
Transmission cost minimization
Impacts due to potential generation retirements
Transmission for renewables deliverability issues
CTPG planning process
Tracy to Bay development activities
2. CPUC and CEC transmission matters
Integrated Energy Policy Report
Resource adequacy issues
Renewable Portfolio Standard issues
Long Term Procurement issues
Approval of CPCNs and PTCs for new transmission lines
Renewable Energy Transmission Initiative (RETI 2.0)
3. CAISO Market Issues
CAISO markets proceedings and implementation matters
Resource Adequacy / Local Capacity/ Flexible Capacity/ Deliverability
LMP congestion and losses incidence and impacts
Regionalization and New Participating Transmission Owner Issues
4. Communicate Regularly with BAMx Members
Client meetings, telephone conferences and written summaries of activities on key
issues.
DocuSign Envelope ID: F44D0AF9-5092-4D33-87A5-F4AC391F036E
17
BAMx PROFESSIONAL SERVICES AGREEMENT
NCPA will accept invoices from Consultant and transmit them to Contracting Members for their
review, and if acceptable, the Contracting Members will direct payment by NCPA. Such payment
direction shall be provided by each Contracting Member as designated in Section 12.8 of this
Agreement, in writing, utilizing appropriate approval forms as shall be developed and/or revised by
NCPA from time to time. An example of such form is included in Exhibit D of this agreement.
NCPA will prepare invoices indicating the share of Consultant's costs to be paid by each
Contracting Member along with the appropriate charges by NCPA for its services; however, as
provided in the Agreement, each Contracting Member is jointly and severally liable for the entirety
of any amounts billed under this Agreement. NCPA will then pay Consultant utilizing Contracting
Members' funds.
Contracting Members will be solely responsible for payment of the Cons invoices, as
well as determining whether or not the professional services have been satisfactorily performed.
The "Services" under this Agreement by NCPA to Contracting Members are limited to the
contracting for services with Consultant and billing/payment function.
DocuSign Envelope ID: F44D0AF9-5092-4D33-87A5-F4AC391F036E
18
BAMx PROFESSIONAL SERVICES AGREEMENT
EXHIBIT B
COMPENSATION SCHEDULE AND HOURLY FEES
Compensation for all tasks, including hourly fees and expenses, shall not exceed $650,000.
The hourly and monthly rates and or compensation break down and an estimated amount of
expenses is as follows:
Monthly Charges for Services provided by NCPA for billing and contract preparation
under this Agreement shall be allocated to each BAMx Participant in proportion to each
proportionate share of energy delivered in prior Calendar Year as
derived from the 2015-2016 NCPA Annual Budget, as reflected in Table 1 below. The total
charge for these services shall be Six Hundred Twenty Five Dollars ($625.00) per month.
Monthly Charges invoiced by Flynn Resource Consultants Inc to NCPA for services
provided to the BAMx Participants under the CONSULTING SERVICES AGREEMENT
BETWEEN THE NORTHERN CALIFORNIA POWER AGENCY AND FLYNN RESOURCE
CONSULTANTS INC., dated , 2016 shall be allocated to each BAMx
Participant in proportion to each BAMx proportionate share of energy
delivered in prior Calendar Year as derived from the 2015-2016 NCPA Annual Budget, as
reflected in Table 1 below.
Compensation to Flynn Resource Consultants Inc. for all tasks, including hourly fees and
expenses, shall not exceed Six-Hundred and Fifty Thousand Dollars ($650,000). The
hourly rates and or compensation break down and an estimated amount of expenses is as
follows:
Flynn Resource Consultants Inc. hourly rates for services are listed below
Labor Category Hourly Rate
$290-310 per hour
Managing Consultant $270-290 per hour
Senior Consultant $230-270 per hour
$190-230 per hour
Associate Consultant $150-190 per hour
$110-150 per hour
Support Services $85 per hour
Travel, food, and miscellaneous expenses, except automobile mileage, associated with the
provision of services hereunder shall be billed at cost. Automobile mileage will be billed at
the rate approved by the Internal Revenue Service.
For any month in which specialized modeling software is used to perform services under
this agreement, the following charges shall apply:
Power flow modeling - $275/month
Short circuit modeling $800/month
DocuSign Envelope ID: F44D0AF9-5092-4D33-87A5-F4AC391F036E
19
BAMx PROFESSIONAL SERVICES AGREEMENT
OASIS Data - $1,200/month
Market modeling - $4,000/month
TABLE 1 Proportionate Share of Energy Delivered
% Share
Palo Alto 978,546 23.4%
Silicon Valley Power 3,196,694 76.6%
4,175,240 100.00%
DocuSign Envelope ID: F44D0AF9-5092-4D33-87A5-F4AC391F036E
20
BAMx PROFESSIONAL SERVICES AGREEMENT
EXHIBIT C
Insurance Maintained by NCPA
COMPENSATION INSURANCE $1,000,000
EXCESS LIABILITY INSURANCE $35,000,000
AUTOMOBILE INSURANCE $1,000,000
DocuSign Envelope ID: F44D0AF9-5092-4D33-87A5-F4AC391F036E
21
BAMx PROFESSIONAL SERVICES AGREEMENT
EXHIBIT D
Bay Area Municipal Transmission Services Agreement (BAMX)
Participants Transmittal
Payment Voucher
For the Period:
To: Northern California Power Agency VIA PDF EMAIL
651 Commerce Drive
Roseville, California 95678
Attention: Accounts Payable (*AcctsPayable@ncpa.com)
Contracting Members The Cities of Palo Alto and Santa Clara(each referred to as a
"Contracting Member" and jointly referred to as or "BAMx Participants")
I the undersigned hereby certify that I am authorized to approve payment of the ATTACHED billing
statement and or invoice(s) and do hereby approve payment thereof by the Billing Agent (Northern
California Power Agency) as indicated below:
For City of Palo Alto:
Name e
No exceptions.
With the deduction of the following exceptions:
For City of Santa Clara: (Silicon
Valley Power) Name
No exceptions:
With the deduction of the following exceptions:
DocuSign Envelope ID: F44D0AF9-5092-4D33-87A5-F4AC391F036E
7MKRIV)ZIRXW 7MKREXYVI 8MQIWXEQT
4EXVMGO&YVX
TEXVMGOFYVX$GMX]SJTEPSEPXSSVK
1E]SV
'MX]SJ4EPS%PXS
7IGYVMX]0IZIP )QEMP%GGSYRX%YXLIRXMGEXMSR
2SRI
9WMRK-4%HHVIWW
7MKRIHYWMRKQSFMPI
7IRX 41
:MI[IH %1
7MKRIH %1
)PIGXVSRMG6IGSVHERH7MKREXYVI(MWGPSWYVI
2SX3JJIVIHZME(SGY7MKR
-(
&IXL1MRSV
&IXL1MRSV$'MX]SJ4EPS%PXSSVK
'MX]'PIVO
'MX]SJ4EPS%PXS
7IGYVMX]0IZIP )QEMP%GGSYRX%YXLIRXMGEXMSR
2SRI
9WMRK-4%HHVIWW
7IRX %1
:MI[IH %1
7MKRIH %1
)PIGXVSRMG6IGSVHERH7MKREXYVI(MWGPSWYVI
2SX3JJIVIHZME(SGY7MKR
-(
-R4IVWSR7MKRIV)ZIRXW 7MKREXYVI 8MQIWXEQT
)HMXSV(IPMZIV])ZIRXW 7XEXYW 8MQIWXEQT
%KIRX(IPMZIV])ZIRXW 7XEXYW 8MQIWXEQT
-RXIVQIHMEV](IPMZIV])ZIRXW 7XEXYW 8MQIWXEQT
.ERIX&MPPYTW
.ERIX&MPPYTW$'MX]SJ4EPS%PXSSVK
'PEMQW-RZIWXMKEXSVW
'MX]SJ4EPS%PXS
7IGYVMX]0IZIP )QEMP%GGSYRX%YXLIRXMGEXMSR
2SRI
9WMRK-4%HHVIWW
7IRX 41
'SQTPIXIH %1
)PIGXVSRMG6IGSVHERH7MKREXYVI(MWGPSWYVI
%GGITXIH %1
-( HJI J JFFJ G
.YH]2K
.YH]2K$'MX]SJ4EPS%PXSSVK
7IGYVMX]0IZIP )QEMP%GGSYRX%YXLIRXMGEXMSR
2SRI
9WMRK-4%HHVIWW
7IRX 41
'SQTPIXIH %1
)PIGXVSRMG6IGSVHERH7MKREXYVI(MWGPSWYVI
2SX3JJIVIHZME(SGY7MKR
-(
.ERMGI7ZIRHWIR
.ERMGI7ZIRHWIR$'MX]SJ4EPS%PXSSVK
.ERMGI7ZIRHWIR
7IGYVMX]0IZIP )QEMP%GGSYRX%YXLIRXMGEXMSR
2SRI
9WMRK-4%HHVIWW
7IRX 41
'SQTPIXIH %1
)PIGXVSRMG6IGSVHERH7MKREXYVI(MWGPSWYVI
2SX3JJIVIHZME(SGY7MKR
-(
'IVXMJMIH(IPMZIV])ZIRXW 7XEXYW 8MQIWXEQT
'EVFSR'ST])ZIRXW 7XEXYW 8MQIWXEQT
'IVXMJMGEXI3J'SQTPIXMSR
)RZIPSTI-H *(%* ( %*%' *) 7XEXYW 'SQTPIXIH
7YFNIGX 4PIEWI(SGY7MKRXLIWIHSGYQIRXW 6)73 2'4%4VSJIWWMSREP7IVZMGIW%KVIIQIRX&%1\ERH*P]RR6I
7SYVGI)RZIPSTI
(SGYQIRX4EKIW 7MKREXYVIW )RZIPSTI3VMKMREXSV
'IVXMJMGEXI4EKIW -RMXMEPW /MQ0YRX
%YXS2EZ )REFPIH
)RZIPSTI-H7XEQTMRK )REFPIH
8MQI>SRI 98'
4EGMJMG8MQI 97
'EREHE
,EQMPXSR%ZI
4EPS%PXS'%
OMQFIVP]PYRX$GMX]SJTEPSEPXSSVK
-4%HHVIWW
6IGSVH8VEGOMRK
7XEXYW 3VMKMREP
41
,SPHIV /MQ0YRX
OMQFIVP]PYRX$GMX]SJTEPSEPXSSVK
0SGEXMSR (SGY7MKR
7MKRIV)ZIRXW 7MKREXYVI 8MQIWXEQT
%Q]&EVXIPP
%Q]&EVXIPP$'MX]SJ4EPS%PXSSVK
7IRMSV(ITYX]'MX]%XXSVRI]
'MX]SJ4EPS%PXS
7IGYVMX]0IZIP )QEMP%GGSYRX%YXLIRXMGEXMSR
2SRI
9WMRK-4%HHVIWW
7IRX 41
:MI[IH %1
7MKRIH %1
)PIGXVSRMG6IGSVHERH7MKREXYVI(MWGPSWYVI
%GGITXIH %1
-( H IGFHIJ G HIE
0EPS4IVI^
0EPS4IVI^$'MX]SJ4EPS%PXSSVK
'LMIJ*MRERGMEP3JJMGIV
'MX]SJ4EPS%PXS
7IGYVMX]0IZIP )QEMP%GGSYRX%YXLIRXMGEXMSR
2SRI
9WMRK-4%HHVIWW
7MKRIHYWMRKQSFMPI
7IRX %1
:MI[IH 41
7MKRIH 41
)PIGXVSRMG6IGSVHERH7MKREXYVI(MWGPSWYVI
2SX3JJIVIHZME(SGY7MKR
-(
)H7LMOEHE
IHWLMOEHE$GMX]SJTEPSEPXSSVK
%WWMWXERX'MX]1EREKIV
'MX]SJ4EPS%PXS
7IGYVMX]0IZIP )QEMP%GGSYRX%YXLIRXMGEXMSR
2SRI
9WMRK-4%HHVIWW
7IRX 41
:MI[IH 41
7MKRIH 41
)PIGXVSRMG6IGSVHERH7MKREXYVI(MWGPSWYVI
2SX3JJIVIHZME(SGY7MKR
-(
.EQIW/IIRI
NEQIWOIIRI$GMX]SJTEPSEPXSSVK
'MX]1EREKIV
'MX]SJ4EPS%PXS
7IGYVMX]0IZIP )QEMP%GGSYRX%YXLIRXMGEXMSR
2SRI
9WMRK-4%HHVIWW
7IRX 41
:MI[IH 41
7MKRIH 41
)PIGXVSRMG6IGSVHERH7MKREXYVI(MWGPSWYVI
%GGITXIH 41
-( JIEE GFFH EG I