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HomeMy WebLinkAbout1996-11-12 City Council (16)City of Palo Alto 5 City Manager’s Report TO: FROM: AGENDA DATE: SUBJECT: HONORABLE CITY COUNCIL CITY MANAGER NOVEMBER 12, 1996 DEPARTMENT:UTILITIES CMR~ APPROVAL OF CONTRACT WITH ELEY ASSOCIATES TO CONDUCT DESIGN REVIEW SERVICES FOR COMMERCIAL AND INDUSTRIAL NEW CONSTRUCTION DEMAND SIDE MANAGEMENT PROJECTS AS PART OF THE UTILITY MARKETING SERVICES PROGRAM REQUEST: This is a request for approval of a contract with Eley Associates in the amount of $50,000 for performing new construction design review services during Fiscal Year 1996-98. RECOMMENDATIONS: Staff recommends that Council approve and authorize the Mayor to execute the attached contract with Eley Associates in the amount of $50,000 to perform new construction design review services. POLICY IMPLICATIONS: The approval of this contract is consistent with existing policies. EXECUTIVE SUMMARY: Project Description The City has revised the Demand Side Management (DSM) policy to justify programs based on the community’s support for environmental policies and the Utilities’ goal of retaining and enhancing the satisfaction of customers (CMR:209:96, April 18,1996). The New Construction Design Review program is one of seven DSM programs approved by City Council. The City will offer new construction design review services for optimizing building energy efficiency to large commercial and industrial customers. The City shall retain consultant assistance to offer design review services directly to the customer and to advise the customer’s design team on efficient design alternatives. The program would be available to all major new or renovated commercial projects. CMR:460:96 Page 1 of 2 Selection Process Staff sent a request for proposals to 6 firms on August 9, 1996. The proposal period was 25 davs in order to provide sufficient time for prospective consultants to consider their proposals. Three firms submitted proposals on September 3, 1996. A selection committee consisting of the City Project Manager and the Manager of Utility Marketing Services reviewed the proposals and two firms were invited to participate in oral interviews on November 2 and 3, 1996. The committee carefully evaluated each firm’s qualifications and submittals in response to the RFP relative to the following criteria (see Evaluation Summary):completeness of proposal, relevant experience; qualifications of staff, ability to respond, and analysis tools. The firms were then ranked according to the weighted criteria. Selection Decision Eley Associates was selected based on their extensive experience in design review for other Utility. and State programs, their excellent reputation and staff qualifications. Eley Associates had the best match of skills and experience to meet the program needs. FISCAL IMPACT Funds for the project are included in the FY 1996-97 budget. ENVIRONMENTAL ASSESSMENT These services do not constitute a project for the purposes of the California Environmental Quality Act. ATTACHMENTS Attachment A Attachment B: PREPARED BY: DEPARTMENT HEAD REVIEW: CITY MANAGER APPROVAL: Evaluation Summary Agreement Lindsay Joye, Associate Power Engineer J~FLEMIN--G Cit~ Manager CMR:460:96 Page 2 of 2 ATTACHI~ _ENT A: EVALUATIC. 4 SUMMARY Weighted Scores for Consultants Under Consideration Criteria Weight Factor Brown Vence Eley Salas O’Brien Completeness of Proposal 40 35 33 30 Relevant Experiance 25 20 24 18 Qualifications 15 12 13 1D Ability to Respond 10 10 10 10 Analysis Tools 10 9 10 10 TOTAL 100 86 90 78 Scores represent the average of the evaluation team members. A’ ?ACHMENT B: AGRE_ MENT CONTRACT NO. BETWEEN THE CITY OF PALO ALTOAND ELEYASSOCIATES FOR CONSULTING SERVICES This Contract No. is entered into , by and between the CITY OF PALO ALTO, a chartered city and a municipa! corporation of the State of California ("CITY"), and ELEY ASSOCIATES, a California corporation, !ocated at 142 Minna Street, San Francisco, CA 94105 ("CONSULTANT"). RECITALS: WHEREAS, CITY desires certain professional consulting services ("Services") and the preparation and delivery of, without limitation, one or more sets of documents, drawings, maps, plans, designs, data, calculations, surveys, specifications, schedules or other writings ("Deliverables") (Services and Deliverables are, collectively, the "Project"), as more fully described in Exhibit "A"; and WHEREAS, CITY desires to engage CONSULTANT, including its employees, if any, in providing the Services by reason of its qualifications and experience in performing the Services, and CONSULTANT has offered to complete the Project on the terms and in the manner set forth herein; NOW, THEREFORE, in consideration of the covenants, terms, conditions, and provisions of this Contract, the parties agree: SECTION i. TERM i.I This Contract will commence on the date of its execution by CITY, and will terminate upon the completion of the Project(s), unless this Contract is earlier terminated by CITY. Upon the receipt of CITY’s notice to proceed, CONSULTANT will commence work on the initial and subsequent Project tasks in accordance with the time schedule set forth in Exhibit "A". In the event that any Project is not "completed within the time required through any fault of CONSULTANT, CITY’s city manager will have the option of extending the time schedule for any period of time. This provision will not preclude the recovery of damages for delay caused by CONSULTANT. SECTION 2.SCOPE OF PROJECT;CHANGES & CORRECTIONS 2.1 The scope of Services andDeliverables constituting the Project wil! be performed, delivered or executed by CONSULTANT under the phases of the Basic Services as described in Exhibit~"A". 2.2 CITY may order substantial changes in the scope or character of the Basic Services, the Deliverables, or the Project, either decreasing or increasing the amount of work required of CONSULTANT. In the event that such changes are ordered, subject to 961025 syn 0071070 1 the approval of CITY’s City Council, as may be required, CONSULTANT will be entitled to ful! compensation for all work performed prior to CONSULTANT’s receipt of the notice of change and further will be entitled to an extension of the time schedule. Any increase in compensation for substantial changes will be determined in accordance with the provisions of this Contract. CITY will not be liable for the cost or payment of any change in work, unless the amount of additional compensation attributable to the change in work is agreed to, in writing, by CITY before CONSULTANT commences the performance of any such change in work. SECTION 3. QUALIFICATIONS, STATUS,. AND DUTIES OF CONSULTANT 3.! CONSULTANT represents andwarrants that it has the expertise and professional qualifications to furnish or cause to be furnished the Services and Deliverables. CONSULTANT further represents and warrants that the project director and every individual, including any consultant (including CONSULTANTs), charged with the performance of the Services are duly licensed or certified by the State of California, to the extent such licensing or certification is required by law to perform the Services, and that the Project will be executed by them or under their supervision. CONSULTANT will furnish to CITY for approval, prior to execution of this Contract, a list of all individuals and the names of their employers or principals to be employed as consultants. 3.2 In reliance on the representations and warranties set forth in this Contract, CITY hires CONSULTANT to execute, and CONSULTANT covenants and agrees that it will execute or cause to be executed, the Project. 3.3 CONSULTANT will assign CHARLES ELEY as the project director to have supervisory responsibility for the performance, progress, and execution of the Project. ERIK KOLDERUP will be assigned as the project coordinator who will represent CONSULTANT during the day-to-day work on the Project. If circumstances or conditions subsequent to the execution of this Contract cause the substitution of the project director or project coordinator for any reason, the appointment of a substitute project director or substitute project coordinator wil! be subject to the prior written approval of the project manager. 3.4 CONSULTANT represents and warrants that it will: 3.4.1 Procure all permits and licenses, pay all charges and fees, and give all notices which may be necessary and incident to the due and lawful prosecution of the Project; 3.4.2 Keep itself fully informed of all existing and future Federal, State of California, and local laws, ordinances, regulations, orders, and decrees which may affect those engaged or employed under this Contract and any materials used in CONSULTANT’s performance of the Services; 961025 ~’n 0071070 2 3.4.3 At all times observe and comply with, and cause its employees and consultants, if any, who are assigned to the performance of this Contract to observe and comply with, the laws, ordinances, regulations, orders and decrees mentioned above; and 3.4.4 Will report immediately to the project manager, in writing, any discrepancy or inconsistency it discovers in the laws, ordinances, regulations, orders, and decrees mentioned above in relation to the Deliverables. 3.5 Any Deliverables given to, or prepared or assembled by, CONSULTANT or its consultants, if any, under this Contract will become the property of CITY and will not be made available to any individual or organization by CONSULTANT or its consultants, if any, without the prior written approva! of the city manager. 3.6 CONSULTANT will provide CITY with two(2) copies of any documents which are a part of the Deliverables upon their completion and acceptance by CITY. 3.7 If CITY requests additional copies of any documents which are a~part of the Deliverabies, CONSULTANT will provide such additional copies and CITY will compensate CONSULTANT for its duplicating costs. 3.8 CONSULTANT will be responsible for employing or engaging all persons necessary to execute the Project. All consultants of CONSULTANT will be deemed to be directly controlled and supervised by CONSULTANT, which will be responsible for their performance. If any employee or consultant of CONSULTANT fails or refuses to carry out the provisions of this Contract or appears to be incompetent or to act in a disorderly or improper manner, the employee or consultant will be discharged immediately from further performance under this Contract on demand of the project manager. 3.9 In the execution of the Project, CONSULTANT and its consultants, if any, wil! at all times be considered independent contractors and not agents or employees of CITY. 3.10 CONSULTANT will perform or obtain or cause to be performed or obtained any and all of the following Additional Services, not included under the Basic Services, if so authorized, in writing, by CITY: 3.10.1 Providing services as an expert witness in connection with any public hearing or meeting, arbitration proceeding,or proceeding of a court of record; 3.10.2 Incurring travel and subsistence expenses for CONSULTANT and its staff beyond those normally required under the Basic Services; 3.10.3 Performing any other Additional Services that may be agreed upon by the parties subsequent to the execution of this Contract; and 961025 ~"yn 0071070 3 3.10.4 Other Additional Services now or hereafter described in an exhibit to this Contract. 3.11 CONSULTANT will be responsible for employing all consultants deemed necessary to assist CONSULTANT in the performance of the Services. The appointment of consultants must be approved, in advance, by CITY, in writing, and must remain acceptable to CITY during the term of this Contract. SECTION 4. DUTIES OF CITY 4.1 CITY will furnish or -cause to be furnished the services listed in Exhibit "A" and such information regarding its requirements applicable to the Project as may be reasonably requested by CONSULTANT. 4.2 CITY will review and approve, as necessary, in a timely manner the Deliverables and each phase of work performed by CONSULTANT. CITY’s estimated time of review and approval will be furnished to CONSULTANT at the time of submission of each phase of work. CONSULTANT acknowledges and understands that the interrelated exchange of information among CITY’s various departments makes it extremely difficult for CITY to firmly establish the time of each review and approval task. CITY’s failure to review and approve within the estimated time schedule will not constitute a default under this Contract. 4.3 The city manager will represent CITY for all purposes under this Contract. LINDSAY JOYE is designated as the project manager for the city manager. The project manager will supervise the performance, progress, and execution of the Project, and will be assisted by TOM AUZENNE, the Manager of Utility Marketing Services. 4.4 If CITY observes or otherwise becomes aware of any default in the performance of CONSULTANT, CITY will use reasonable efforts to give written notice thereof to CONSULTANT in a timely manner. SECTION 5.COMPENSATION 5.1 CITY will compensate CONSULTANT for the following services and work: 5.1.1 In consideration of the full performance of the Basic Services, including any authorized reimbursable expenses, CITY will pay CONSULTANT a fee not to exceed fifty thousand dollars ($50,000). The amount of compensation will be calculated in accordance with the hourly rate schedule set forth in Exhibit "B", on a time and materials basis, up to the maximum amount set forth in this Section. The fees of the consultants, who have direct contractual relationships with CONSULTANT, wil! be approved, in advance, by CITY. CITY reserves the right to refuse payment of such fees, if such prior approva! is not obtained by CONSULTANT. 961025 syn 0071070 4 5.1.2 In consideration of the full performance of Additional Services, if any, the amount of compensation set forth in Exhibit "B" will not exceed the amount set forth in Exhibit "B". An employee’s time will be computed at a multiple of one (I) times the employee’s direct personnel expense described below. The rate schedules may be updated by CONSULTANT only once each calendar year, and the rate schedules will not become effective for purposes of this Contract, unless and unti! CONSULTANT gives CITY thirty (30) days’ prior written notice of the effective date of any revised rate schedule. 5.1.3 The full payment of charges for extra work or changes, or both, in the execution of the Project will be made, provided such request for payment is initiated by CONSULTANT and authorized, in writing, by the project manager. Payment will be made within thirty (30) days of submission by CONSULTANT of a statement, in triplicate, of itemized costs covering such work or changes, or both. Prior to commencing such extra work or changes, or both, the parties will agree upon an estimated maximum cost for such extra work or changes. CONSULTANT will not be paid for extra work or changes, including, without limitation, any design work or change order preparation, which is made necessary on account of CONSULTANT’s errors, omissions, or oversights. 5.1.4 Direct personnel expense of employees assigned to the execution of the Project by CONSULTANT will include only the work of architects, engineers, designers, job captains, draftspersons, specification writers and typists, in consultation, research and design, work in producing drawings, specifications and other documents pertaining to the Project, and in services rendered during construction at the site, to the extent such services are expressly contemplated under this Contract. Included in the cost of direct personnel expense of these employees are salaries and mandatory and customary benefits such as statutory employee benefits, insurance, sick leave, holidays and vacations, pensions and similar benefits. 5.2 The schedule of payments will be made as follows: 5.2.1 Payment of the Basic Services will be made in monthly progress payments in proportion to the quantum of services performed, or in accordance with any other schedule of payment mutually agreed upon by the parties, as set forth in Exhibit or within thirty (30) days of submission, in triplicate, of such requests if a schedule of payment is not specified. Final payment will be made by CITY after CONSULTANT has submitted all Deliverables, including, without limitation, reports which have been approved by the project manager. 5.2.2 Payment of the Additional Services will be made in monthly progress payments for services rendered, within thirty (30) days of submission, in triplicate, of such requests. 5.2.3 No deductions will be made from CONSULTANT’s compensation on account of penalties, liquidated damages, or other sums withheld by CITY from payments to general contractors. 961025 syn 0071070 5 SECTION 6.ACCOUNTING, AUDITSL. OWNERSHIP OF RECORDS 6.1 Records of the direct, personnel expenses and expenses incurred in connection with the performance of Basic Services and Additional Services pertaining to the Project will be prepared, maintained, and retained by CONSULTANT in accordance with ~generally accepted accounting principles and will be made available to CITY for auditing purposes at mutually convenient times during the term of this Contract and for three (3) years following the expiration or earlier termination of this Contract. 6.2 The originals of the Deliverables prepared by or under the direction of CONSULTANT in the performance of this Contract will become the property of CITY irrespective of whether the Project is completed upon CITY’s payment of the amounts required to be paid to CONSULTANT. These originals will be delivered to CITY without additional compensation. CITY will have the right to utilize any final and incomplete drawings, estimates, specifications, and any other documents prepared hereunder by CONSULTANT, but CONSULTANT disclaims any responsibility or liability for any alterations or modifications of such documents. SECTION 7. INDEMNITY 7.1 CONSULTANT agrees to protect, indemnify, defend and hold harmless CITY, its Council members, officers, employees and agents, from any and all demands, claims, or liability of any nature, including death or injury to any person, property damage or any other loss, caused by or arising out of CONSULTANT’s, its officers’, agents’, consultants’ or employees’ negligent acts, errors, or omissions, or willful misconduct, or conduct for which applicable law may impose strict liability on CONSULTANT in the performance of or failure to perform its obligations under this Contract. SECTION 8. WAIVERS 8.1 The waiver by either party of any breach or violation of any covenant, term, condition or provision of this Contract or of the provisions-of any ordinance or law will not be deemed to be a waiver of any such covenant, term, condition, provision, ordinance, or law or of any subsequent breach or violation of the same or of any other covenant, term, condition, provision, ordinance or law. The subsequent acceptance by either party of any fee or other money which may become due hereunder will not be deemed to be a waiver of any preceding breach or violation by the other party~of any covenant, term, condition or provision of this Contract or of any applicable law or ordinance. 8.2 No payment, partial payment, acceptance, or partial acceptance.by CITY will operate as a waiver on the part of CITY of any of its rights under this Contract. 961025 syn 0071070 SECTION 9. INSURANCE 9.1 CONSULTANT, at its sole cost and expense, will obtain and maintain, in full force and effect during the term of this Contract, the insurance coverage described in Exhibit "C", insuring not only CONSULTANT and its consultants, if any, but also, with the exception of workers’ compensation, employer’s liability and professional liability insurance, naming CITY as an additional insured concerning CONSULTANT’s performance under this Contract. 9.2 All insurance coverage required hereunder will be provided through carriers with Best’s Key Rating Guide ratings of A:X or higher which are admitted to transact insurance business in the State of California. Any and all consultants of CONSULTANT retained to perform Services under this Contract wil! obtain and maintain, in full force and effect during the term of this Contract, identical insurance coverage, naming CITY as an additional insured under such policies as required above. 9.3 Certificates of such insurance, preferably on the forms provided by CITY, will be filed with CITY concurrently with the execution of this Contract. The certificates will be subject to the approval of CITY’s risk manager and will contain an endorsement stating that the insurance is primary coverage and will not be canceled or altered by the insurer except after filing with the CITY’s city clerk thirty (30) days’ prior written notice of such cancellation or alteration, and that the City of Palo Alto is named as an additiona! insured except in policies of workers’ compensation, employer’s liability, and professional liability insurance. Current certificates of such insurance will be kept on file at all times during the term of this Contract with the city clerk. 9.4 The procuring of such required policy or policies of insurance will not be construed to limit CONSULTANT’s liability hereunder nor to fulfill the indemnification provisions of this Contract. Notwithstanding the policy or policies of insurance, CONSULTANT will be obligated for the full and total amount of any damage, injury, or loss caused by or directly arising as a result of the Services performed u~der this Contract, including such damage, injury, or loss arising after the Contract is terminated or the term has expired. SECTION I0.WORKERS’ COMPENSATION i0.i CONSULTANT, by executing this Contract, certifies that it is aware of the provisions of the Labor Code of the State of California which require every emp!oyer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that Code, and certifies that it will comply with such provisions, as applicable, before commencing the~performance of the Project. 961025 syn 0071070 7 SECTION ii TERMINATION OR SUSPENSION OF CONTRACT OR PROJECT ii.i The city manager may suspend the execution of the Project, in whole or in part, or terminate this Contract, with or without cause, by giving thirty (30) days’ prior written notice thereof to CONSULTANT, or immediately after submission to CITY by CONSULTANT of any completed item of Basic Services. Upon receipt of such notice, CONSULTANT will immediately discontinue its performance under this Contract. 11.2. CONSULTANT may terminate this Contract or suspend its execution of the Project by giving thirty (30) days’ prior written notice thereof to CITY, but only in the event of a substantial failure of performance by CITY or in the event CITY indefinitely withholds or withdraws its request for the initiation or continuation of Basic Services or the execution of the Project. 11.3 Upon such suspension or termination by CITY, CONSULTANT will be compensated for the Basic Services and Additional Services performed and Deliverables received and approved prior to receipt of written notice from CITY of such suspension or abandonment, together with authorized additional and reimbursable expenses then due. If the Project is resumed after it has been suspended for more ~than 180 days, any change in CONSULTANT’s compensation will be subject to renegotiation and, if necessary, approval of CITY’s City Council. If this Contract is suspended or terminated on account of a default by CONSULTANT, CITY will be obligated to compensate CONSULTANT only for that portion of CONSULTANT’s services which are of direct and immediate benefit to CITY, as such determination may be made by the city manager in the reasonable exercise of her discretion. 11.4 In the event of termination of this Contract or suspension of work on the Project by CITY where CONSULTANT is not in default, CONSULTANT wil! receive compensation as follows: 11.4.1 For approved items of services, CONSULTANT will be compensated for each item of service fully performed in the amounts authorized under this "Contract. 11.4.2 For approved items of services on which a notice to proceed is issued by CITY, but which are not fully performed, CONSULTANT will be compensated for each item of service in an amount which bears the same ratio to the total fee otherwise payable for the performance of the service as the quantum of service actually rendered bears to the services necessary for the full performance of that item of service. 11.4.3 The total compensation payable under the preceding paragraphs of this Section will not exceed the payment specified under Section 5 for the respective items of service to be furnished by CONSULTANT. 11.5 Upon such suspension or termination, CONSULTANT will deliver to the city manager immediately any and all copies of 961025 syn 0071070 8 the Deliverables, whether or not completed, prepared by CONSULTANT or its consultants, if any, or given to CONSULTANT or its consultants, if any, in connection with this Contract. Such materials will become the property of CITY. 11.6 The failure of CITY to agree with CONSULTANT’s independent findings, conclusions, or recommendations, if the same are called for under this Contract, on the basis of differences in matters of judgment, will not be construed as a failure on the part of CONSULTANT to fulfill its obligations under this Contract. SECTION 12.ASSIGNMENT 12.1 This Contract is for the personal services of CONSULTANT, therefore, CONSULTANT will not assign, transfer, convey, or otherwise dispose of this Contract or any right, title or interest in or to the same or any part thereof without the prior written consent of CITY. A consent to one assignment will not be deemed to be a consent to any subsequent assignment. Any assignment made without the approval of CITY will be void and, at the option of the city manager, this Contract may be terminated. This Contract will not be assignable by operation of law. SECTION 13.NOTICES 13.1 All notices hereunder will be given, in writing, and mailed, postage prepaid, by certified mail, addressed as follows: To CITY:Office of the City Clerk City of Palo Alto Post Office Box 10250 Palo Alto, CA 94303 To CONSULTANT: Attention of the project director at the address of CONSULTANT recited above SECTION 14.CONFLICT OF INTEREST 14.1 In accepting this Contract, CONSULTANT covenants that it presently has no interest, and wil! not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of the Services. 14.2 CONSULTANT further covenants that, in the performance of this Contract, it will not employ contractors or persons having such an interest mentioned above. CONSULTANT certifies that no one who has or will have any financial interest under this Contract is an officer or employee of CITY; this provision will be interpreted in accordance with the applicable provisions of the Palo Alto Municipal Code and the Government Code of the State of California. 9 961025 syn 0071070 SECTION 15. NONDISCRIMINATION 15.1 As set forth in the Palo Alto Municipal Code, no discrimination will be made in the employment of persons under this Contract because of the age, race, color, national origin, ancestry, religion, disability, sexual preference or gender of such person. If the value of this Contract is, or may be, five thousand dollars ($5,000) or more, CONSULTANT agrees to meet all requirements of the Palo Alto Municipal Code pertaining to nondiscrimination in employment, including completing the requisite form furnished by CITY and set forth in Exhibit "D" 15.2 CONSULTANT agrees that each contract for services from independent providers will contain a provision substantially as follows: "[Name of Provider] will provide CONSULTANT with a certificate stating that [Name of Provider] is currently in compliance with all Federal and State of California laws covering nondiscrimination in employment; that [Name of Provider] will pursue an affirmative course of action as required by the Affirmative Action Guidelines of the City of Palo Alto; and that [Name of Provider] will not discriminate in the employment of any person under this contract because of the age, race, color, national origin, ancestry, religion, disability, sexual preference or gender of such person." 15.3 If CONSULTANT is found in violation of the nondiscrimination provisions of the State of California Fair Employment Practices Act or similar provisions of Federal law or executive order in the performance of this Contract, it will be in default of this Contract. Thereupon, CITY will have the power to cancel or suspend this Contract, in whole or in part, or to deduct the sum of twenty-five dollars ($25) for each person for each calendar day during which- such person was subjected to discrimination, as damages for breach of contract, or both. Only a finding of the State of California Fair Employment Practices Commission or the equivalent federal agency or officer will constitute evidence of a breach of this Contract. 15.4 If CONSULTANT is found in default of the nondiscrimination provisions of this Contract or the applicable Affirmative Action Guidelines pertaining to this Contract, CONSULTANT will be found in material breach of this Contract. Thereupon, CITY wil! have the power to cancel or suspend this Contract, in whole or in part, or to deduct from the amount payable to CONSULTANT the sum of two hundred fifty dollars ($250) for each calendar day during which CONSULTANT is not in compliance with this provision as damages for breach of contract, or both. 961025 syn 0(371070 10 SECTION 16.MISCELLANEOUS PROVISIONS 16.1 CONSULTANT represents and warrants that it has knowledge of the requirements of the federal Americans with Disabilities Act of 1990, and the Government Code and the Health and Safety Code of the State of California, relating to access to public buildings and accommodations for disabled persons, and relating to facilities for disabled persons. CONSULTANT will comply with or ensure by its advice that compliance with such provisions will be effected pursuant to the terms of this Contract. 16.2 Upon the agreement of the parties, any controversy or claim arising out of or relating to this Contract may be settled by arbitration in accordance with the Rules of the American Arbitration Association, and judgment upon the award rendered by the Arbitrators may be entered in any court having jurisdiction thereof. 16.3 This Contract will be governed by the laws of the State of California, excluding its conflicts of law. 16.4 In the event that an action is brought, the parties agree that trial of such action will be vested exclusively in the state courts of California or in the United States District Court for the Northern District of California in the County of Santa Clara, State of California. 16.5 The prevailing party in any action brought to enforce the terms of this Contract or arising out of this Contract may recover its reasonable costs and attorneys’ fees expended in connection with that action. 16.6 This document represents the entire and integrated Contract between the parties and supersedes all prior negotiations, representations, and contracts, either written or oral. This document may be amended only by a written instrument, which is signed by the parties. 16.7 All provisions of this Contract, whether covenants or conditions, will be deemed to be both covenants and conditions. 16.8 The covenants, terms, conditions and provisions of this Contract will apply to, and will bind, the heirs, successors, executors, administrators, assignees, and consultants, as the case may be, of the parties. 16.9 If a court of competent jurisdiction finds or rules that any provision of this Contract or any amendment thereto is void or unenforceable, the unaffected provisions of this Contract and any amendments thereto will remain in full force and effect. 16.10 All exhibits referred to in this Contract and any addenda, appendices, attachments, and schedules which, from time to time, may be referred to in any duly executed amendment hereto are by such reference incorporated in this Contract and will be deemed to be a part of this Contract. 961025 syn 0071070 11 16.11 This Contract may be executed in any number of counterparts, each of which will be an original, but all of which together will constitute one and the same instrument. 16.12 This Contract is subject to the fiscal provisions of the Charter of the City of Palo Alto and the Palo Alto Municipal Code. This Contract will terminate without any penalty (a) at the end of any fiscal year in the event that funds are not appropriated for the following fiscal year, or (b) at any time within a fiscal year in the event that funds are only appropriated for a portion of the fiscal year and funds for this Contract are no longer available. This Section 16.12 will take precedence in the event of a conflict with any other covenant, term, condition, or provision of this Contract. IN WITNESS WHEREOF, the parties hereto have by their duly authorized representatives executed this Contract on the date first above written. ATTEST:CITY OF PALO ALTO City Clerk APPROVED AS TO FORM: Mayor Senior Asst. City Attorney APPROVED: ELEY ASSOCIATES Assistant City Manager Director of Utilities By: Its: Taxpayer’s I.D. No. Deputy City Manager, Administrative. Services Risk Manager Attachments: EXHIBIT "A" : EXHIBIT "B" : EXHIBIT "C" : EXHIBIT "D" : SCOPE OF PROJECT &TIME SCHEDULE RATE SCHEDULE INSURANCE NONDISCRIMINATION COMPLIANCE FORM 12961025 syn 0071070 CERTIFICATE OF ACKNOWLEDGM]KNT (Civil Code § 1189) STATE OF )) ss. COUNTY OF ) On , 1996, before me,, a Notary Public in and for said County and State, personally appeared , personally known to me or proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature of Notary Public 961025 syn 0071070 13 EXHIBIT A: SCOPE OF SERVICES CITY OF PALO ALTO UTILITIES Utility Marketing Services Request for Proposal for New Construction Program Consulting Services OBJECTIVE AND OVERVIEW The objective of this solicitation is to secure consulting services for the City of Palo Alto (CITY) Utilities Department and its commercial and industrial customers. The services will be provided by the consultant(s) on an as-requested basis, when the need for services is determined by CITY. Consultant work will be directed by the CITY’s Project Manager through the issuance of written task assignments. The scope and fee for each task assignment will be negotiated between the consultant and the CITY’s Project Manager prior to commencement of the requested work. The contract period will be for two years. One adjustment in billing rates will be allowed annually. The type of services include: new construction design review, marketing assistance, technical assistance (including building energy simulation) for Utilities program implementation. The CITY’s Utilities Marketing Services Section will select one or two consultant firms for this program. The selection criteria is described herein. BACKGROUND The CITY has revised the Demand Side Management (DSM) policy to justify programs based on the community’s support for environmental policies and the Utilities goal of retaining and enhancing the satisfaction of customers (CMR:209:96, April 18,1996). The New Construction Design Review program is one of seven DSM programs approved by City Council. PROGRAM DESCRIPTION The CITY will offer new construction design review services for optimizing building energy efficiency to large commercial and industrial customers. The CITY shall retain consultant assistance to offer design review services directly to the customer and to advise the customer’s design team on efficient design alternatives. The program would be available to all major new or renovated commercial projects. EXHIBIT A: SCOPE OF SERVICES City of Palo Alto Utilities Request for Proposal for New Construction Program CONTACT SCOPE At the direction of the CITY’s Project Manager, the consultant(s) shall provide on an as- needed basis: Design Review. The consultant shall work with the customer’s design team to optimize building and system design for efficiency. The consultant may advise the design team to model efficient alternatives or may directly perform any necessary energy simulations. The design review should integrate the following systems: building envelope, windows, cooling loads, air conditioning system components (chillers, cooling towers, pumps), process equipment, lighting and building automation system controls. A financial evaluation of lifetime costs and benefits of the alternative designs would be performed and presented to the customer’s management. Development of Design Guidelines. The consultant shall develop design guidelines to be used for program marketing. The guidelines would be distributed to local designers for education. Content would include: integrated approach to designing the building shell and systems (lighting, mechanical and control systems). The guidelines would be no more than 5 pages. The CITY will provide final graphic design for all materials produced. Marketing Services for New Construction. Tasks include assisting CITY staff in making presentations to customers, advising designers and developers on efficient equipment in commercial development projects. Technical Support for Program. Tasks may include: a.Performing project e~iergy and economic analysis. b.Performing short-term monitoring and performance evaluation. Co Reviewing building/system commissioning plans and make recommendations. Assist CITY in selecting grant recipients for annual award program. One or more building designs will receive an award for exceptional building design efficiency. 2 EXHIBIT A: SCOPE OF SERVICES City of Palo Alto Utilities Request for Proposal for New Construction Program TASK ASSIGNMENT PROCEDURE The selected consultants will be assigned the various tasks as they occur, depending on the scope of the task and their area of expertise and at the discretion of the CITY’s Project Manager and the customer. The CITY’s Project Manager will define the task, in conjunction with the Utility customer, and provide a written description of the task to the consultant selected for the task. o The consultant shall provide CITY a written, fixed-price quotation for services along with an estimated time for completion. If a site visit and meeting with the customer is required to estimate the cost of the task, the consultant may charge a reasonable fee for his or her time required for the visit. This may be added to the cost of the project assignments or charged separately. If the consultant declines to perform the work on an offered task, the CITY’s Project Manager should be notified within five working days after the site visit. Based on the price quotation, CITY will authorize the work with a written "Notice to Proceed", or redefine the tasks associated with the assignment. A project completion date will be set by CITY. The consultant shall complete the work and provide CITY with the deliverables. A 95 % complete draft report must be submitted at least 10 working days before the project deadline for CITY review and comment. DELIVERABLES The deliverables will be determined on a task-by-task basis. Deliverables may include reports, Title-24 compliance runs, energy calculations, or presentations. Oral presentations and staff training sessions may be video recorded by the CITY. All reports and written materials must be provided to and approved by the CITY’s Project Manager prior to the delivery to the customer. 3 "-XHIBIT B: RATE SCHEY Hourly Billing Rates Following is a list of individual fully loaded billing rates for all team members. Rates include all overhead and profit. Eley Associates does not mark up its sub-contractors or direct expenses. Immediately following is a cost estimate for the sample tasks requested in the RFP. Charles Eley $125 Erik Kolderup $ 85 John Kennedy $ 70 Tom Tolen $ 60 Steve Taylor $1 O0 Eley Associates Proposal Page 17 EXHIBIT C: INSURANCE !11 - INSURANCE REQUIREMENTS - Long Form City of Palo Alto: Insurance Requirements for Contractors CONTRACTOR:~...k,...~,..~ ~:::~,~_,.~ ,:~,..-~..~ PROJECT MANAGER:,,,Lindsay Jo~ye, UMS . SECTION 650(~ CONTRACT NAME:New Construction D~, slain Review ~D ~=’R~VE~ BY THE Ct1‘Y ~5=~R~ ~N~.t~J~-T W~L B~ ~N~tDERE~ ~MP~--=3~ ~ ~P~-1~ ~JR‘~J~-- RETURN THE COMPLETED CERTIFICATE TO THE CITY OF PALO ALTO, PURCHASING & CONTRACT ADMINISTRATION, 250 HAMILTON AVENUE, PALO ALTO g4301. THE INSURANCE REQUIREMENTS CHECKED BELOW ARE REQUIRED FOR THIS CONTRACT. Co D. E. F. TYP~ O~ ¢X:~E Worker’s Compen=tlon - Automobile Uabilit~ ........ ~.Co~’korehen~ve General Liability: INCLUDING: ¯BRIS~J~ FC~M PR~I~RTY E~MAGE INCLUDING: Pro fe~Jo~al Liability: INCLUDING: ¯ ~ 0~ Appr, c=b~) ~Y INJURY & PROPERTY ~ E CO~BZNF..D -. ALL DAMAGES ~L .THE CITY, OF PALO ALTO IS TO BE NAMED AS AN ADDITIO~,~L INSURED ,, The City of Palo Alto, its off~..ers, =gents and employees ire named as tdditim~l insured, b~t o~ly as to wod< performed under ~ ~ ~ as to the C,~ty of Pak~ AJto, etc., shal be I:~mary coverage, vdd’KxJt offset against Cites existing insurance and any other insurance carded by the City being excess irmurance oaly.Where the work involves grading, paving, excava~ng, drilling or ~her underground work, the policy includes destrucl~n of wires, condu~, pipes, mair~, or ~ sirrala~ property or any apparatus in connection therewith below the surface of the ground whether owned by third parties or tt~e City of P=lo Alto. Where the w~k involves excavating, collapse coverage is pn:Mded in be amounts above. The policy ~ a "Severability of Interest" ixov~sioa. Deductibles (~,er $5,000 must be indicated and are subject to approval. If such pdicies are canceled or changed dudng be pedod of coverage as stated herein, In such a manner as to affect the CertirK:ate, thirty (30) (~ays written notice will be mailed to the City of Palo Alto, Contract Administ~tion, P.O. Box 10250, 94303 The rBblity insurance po6cy i’K~des a cenkactual liabil~ ~t i:Koviding insurance ~yerage for Contractor’s agreement to indemnify the City. The coverage afforded under the pO~K:ias iS subject to all terms of the policies designated herein snd nleets all of be p~ovisicns called for her~in, ,,~ DATE CONTRACT ADMINISTRATOR: END OF SECTION " : NL.srDISCRIMINATION COMPLIANCE FORM’ ’=zJEXHIBIT D CERTIFICATION of NONDISCRIMINATION SECTION 410 New Construction Program Consulting Services Certification of Nondiscrimination: As suppliers of goods or services to the City of Palo Alto, the firm and individuals listed below certify that they do not discriminate in employment with regards to age, race, color, religion, sex, national odgin, ancestry, disability, or sexual preference; that they are in compliance with all Federal, State and local directives and executive orders regarding nondiscrimination in employment; and that they agree to demonstrate positively and aggressively the principle of equal opportunity in employment. The Bidder agrees specifically: 1.0 To establish or observe employment policies opportunities for minodty persons at all job levels. which affirmatively promote 2.0 To communicate this policy to all persons concerned, including all employees, outside recruiting services, especially those serving minority communities, and to the minority communities at large. 3.0 To take affirmative action steps to hire minodty employees within the organization. 4.0 To be knowledgeable of the local, state, and federal laws and regulations concerning affirmative action policies and provide opportunities for employees. Signature Please include any additional information available regarding equal opportunity employment programs now in effect within your company. (Please attach add~onal pages if necessary) END OF SECTION CITY of PALO ALTO: Non-discrimination (6/94)SECTION 410-1