HomeMy WebLinkAbout1999-04-05 City Council (16)TO:
City of Palo Alto
C ty Manager’s Report
HONORABLE CITY COUNCIL
5
FROM:CITY MANAGER DEPARTMENT: UTILITIES
DATE:
SUBJECT:
APRIL 5, 1999 CMR: 186:99
APPROVAL OF A CONSULTING CONTRACT WITHDELOITTE &
TOUCHE, LLP TO PROVIDE RISK MANAGEMENT CONSULTING
SERVICES
RECOMMENDATIONS
Staff recommends that the Council approve and authorize the Mayor to execute the attached
consultant contract with Deloitte & Touche, LLP (Attachment 1) for a not-to-exceed amount
of $110,000 for FY 1998-99; and, contingent on Council approval of the 1999-00 Budget,
not to exceed $115,000 for FY 1999-00 for energy risk management consulting services.
DISCUSSION
Consultant Service Description
The Utilities Department has identified the need for consulting services to augment staff
resources and provide specialized knowledge, analysis, and policy/program development
assistance in thearea of risk management related to City’s electric and gas utilities. The
major objective of these services is to design, develop and implement a framework for energy
risk management (both electricity and natural gas), focusing on risks associated not only with
the current operating environment, but also the anticipated risks that the Utilities Department
will face in its transition towards deregulation.
The proposed consulting services include the following:
Phase 1 -
Phase 2 -
Phase 3 -
Review of existing risk management materials and program
Developing a suggested risk management plan &senior management
training
Assistance with risk management implementation
CMR: 186:99 Page 1 of 3
Selection Process:
A request for proposals (RFP # 109355) was sent on August 31, 1998 to 16 consulting firms
with relevant expertise in three specific work areas: (I). electric regulatory affairs, (ii) gas
regulatory affairs, and (iii) risk management. The consultants were asked to offer services
in any or all areas. By September 29, 1998, the due date, 8 firms responded with proposals
to offer services in the risk management area.
An evaluation committee composed of three staff representatives from the Supply
Resources section of the Resosurce Management Division reviewed the proposals and short-
listed three firms based on the evaluation criteria contained in the RFP. These three firms
were invited to make presentations to the evaluation committee, and Deloitte & Touche, LLP
was selected as the consultant to work with the City in the risk management area.
Deloitte and Touche was selected by the committee as it presented the most professional
approach and a better talent pool in risk management. It also exhibited in-depth knowledge
of the relationship between Palo Alto and the Northem California Power Agency (NCPA)
based on its work on risk management for the City of Roseville, which provided a good
reference.
RESOURCE IMPACT
The required funds ($110,000) for providing consulting services are included in the FY 1998-
99 budget. Continued work under this contract for FY1999/00 will be subject to satisfactory
performance by the Consultant and appropriation of required funds for the fiscal year 1999-
00. The FY 1999-00 budget is based on a current estimate of the requirements for the
Implementation Phase of the Palo Alto Utilities risk management system. The contract can
be terminated bythe City with thirty day’s written notice with or without cause.
POLICY IMPLICATIONS
The award of this contract is consistent with existing City policy.
ENVIRONMENTAL ASSESSMENT
These services do not constitute a project for the purposes of the California Environmental
Quality Act.
CMR:186:99 Page 2 of 3
ATTACHMENTS
Attachment 1" Consulting Contract with Deloitte & Touche, LLP
PREPARED BY:Girish Balachandran, Manager, Supply Resources
Jane Ratchye, Senior Resource Planner
Shishir Mukherjee, Resource Planner
DEPARTMENT HEAD APPROVAL: ~XJWt,L/_<~tt,0 ,~
EDWARI~J. I~IRIZEI~
Director of Utilities
CITY MANAGER APPROVAL:
EMILY HARRISON
Assistant City Manager
CMR:186:99 Page 3 of 3
CONTRACT NO.
BE~EEN THE CITY OF PALO ALTO AND
DELOITTE & TOUCHE LLP
FOR RISK MANAGEMENT CONSULTING SERVICES
This Contract No.is entered into ,
by and between the CITY OF PALO ALTO, a chartered city and a
municipal corporation of the State of California ("CITY"), and
DELOITTE & TOUCHE LLP, a Delaware limited liability partnership
with an office located at I000 Wilshire Boulevard, Suite 1500, Los
Angeles, CA 90017 ("CONTRACTOR").
RECITALS:
WHEREAS, CITY desires certain risk management consulting
services ("Services"), as more fully described in Exhibit "A"; and
WHEREAS, CITY desires to engage CONTRACTOR, including its
personnel, if any, in providing the Services by reason of its
qualifications and experience in performing such Services, and
CONTRACTOR has offered to provide the Services on the terms and in
the manner set forth herein;
NOW, THEREFORE, in consideration of the covenants, terms,
conditions, and provisions ofthlS Contract, the parties agree:
SECTION 1 - TERM
I.i This Contract will commence on the date of its
execution by CITY. The obligation .of CONTRACTOR to perform the
Services will commence in accordance with the time schedule set
forth in Exhibit ~A". In the event that the Services are not
completed within the specified time schedule on account of
CONTRACTOR’s default, 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
CONTRACTOR.
SECTION 2
CONTRACTOR
QUALIFICATIONS, STATUS, AND DUTIES OF
2.1 CONTRACTOR represents and warrants that it will
furnish or-cause to be furnished the Services in good faith with
due professional care. CONTRACTOR further represents and warrants
that its personnel charged with the performance of the Services
under this Contract 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.
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2.1.1 CONTRACTOR DISCLAIMS ALL OTHER WARRANTIES, EITHER
EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CONTP~ACTOR
HAS NOT BEEN ENGAGED TO PROVIDE ANY YEAR 2000° SERVICES SUCH AS
ASSESSMENT, CONVERSION OR TESTING. ACCORDINGLY, CONTRACTOR IS NOT
PROVIDING SUCH SERVICES," AND CONTRACTOR DOES NOT, AND WILL NOT,
REPRESENT, WARRANT OR PROVIDE ANY ASSURANCES THAT CITY’S SYSTEMS OR
ANY OTHER SYSTEMS (INCLUDING, WITHOUT LIMITATION, THE SYSTEMS OF
CITY’S VENDORS, SERVICE PROVIDERS, CUSTOMERS, OR JOINT VENTURES IN
WHICH CITY HAS AN INVESTMENT OR OTHER THIRD PARTIES) ARE YEAR 2000
COMPLIANT, OR THAT CITY’S PLANS OR THE PLANS OF ANY THIRD PARTIES
TO DEAL WITH THE YEAR 2000 ~ARE SUFFICIENT TO ADDRESS OR CORRECT ANY
YEAR 2000 PROBLEMS THAT MIGHT ARISE, OR WITH RESPECT TO ANY OTHER
MATTERS RELATING TO THE YEAR 2000.
2.2 In reliance on the representation and warranty set
forth" in Section 2.1, CITY hires CONTRACTOR to perform, and
CONTRACTOR covenants and agrees that it will furnish or cause to be
furnished, the Services.
2.3 CONTRACTOR will assign Stephen R. Thompson as the
project director to have supervisory responsibility for the
performance, progress, and execution of the Services. If
circumstances or conditions subsequent to the execution of this
Contract cause the substitution of the project director for any
reason, the appointment of a substitute project director will be
subject to the prior written:~pproval of the CITY’s project
manager, such approval not to be unreasonably withheld or delayed.
2.4 CONTRACTOR represents and warrants that it will:
2.4.1 Procure all permits ~nd licenses, pay all charges
and fees, and give all notices which may be necessary and incident
to the due and lawful prosecution of the Services;
21.4.2 Keep itself fully informed of all existing and
future Federal, State of California, and local laws, ordinances,
regulations, orders, and decrees which may affect the performance
of the Services;
2.4.3 At all times observe and comply with, and cause its
employees and contractors (and consultants), if any, who are
assigned to the performance of this Contract to observe and comply
with, in all material respects, the laws, ordinances, regulations,
orders and decrees mentioned above; and
2.5 Subject to the provisions of this Section 2.5, any
final reports first prepared for delivery to the CITY by CONTRACTOR
or its contractors, if any, under this Contract (the
~Deliverables") will become the property of CITY upon full and
final payment to CONTRACTOR hereunder and will not be made
available to any individual or organization by CONTRACTOR or its
contractors, if any, without the prior written approval of the CITY
manager, except as may be required by law, regulation, judicial or
administrative process, or in accordance with applicable
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professional standards, or in connection with litigation pertaining
hereto.
CONTRACTOR has created, acquired or otherwise has rights
in, and may, in connection with the performance of Services
hereunder, employ, provi-de, modify, create, acquire or otherwise
obtain rights in, various concepts, ideas, methods, methodologies,
procedures, processes, know-how, and techniques (including, without
limitation, function, process, system and data models); templates;
the generalized features of the structure, sequence and
organization of software, user interfaces and screen designs;
general purpose consulting and software tools, utilities and
routines; and logic, coherence and methods of operation of systems
(collectively, the ~Contractor Technology").
To the extent that any Contractor Technology is contained
in an~ Of the Deliverables, CONTRACTOR hereby grants the CITY, upon
full and final payment to CONTRACTOR hereunder, a royalty-free,
fully paid-up, worldwide, non-exclusive license to use such
Contractor Technology in connection with the Deliverables.
To the extent that CONTRACTOR utilizes any of its
property (including, without limitation, the Contractor Technology
or any hardware or software of CONTRACTOR) in connection with the
performance of Services hereunder, .such property shall remain the
property of CONTRACTOR and, .except for the license expressly
granted in the preceding paragraph, the CITY shall acquire no right
or interest in such property. Notwithstanding anything in this
Contract to the contrary, the parties acknowledge and agree that
(a) CONTRACTOR shall own all right, title, and interest, including,
without limitation, all rights under all copyright, patent and
other intellectual property laws,, in and to the Contractor
Technology, and (b) CONTRACTOR may employ, modify, disclose, and
otherwise exploit the Contractor Technology (including, without
limitation, providing services or~creating programming or materials
for other clients). CONTRACTOR does not agree to any terms that
may be construed as precluding or limiting in any way its right to
(a) provide consulting or other services of any kind or nature
whatsoever to any person or entity as CONTRACTOR in .its sole
discretion deems appropriate or (b) develop for itself, or for
others, materials that are competitive with those produced as a
result of the services provided hereunder, irrespective of their
similarity to the Deliverables.
2.6 CONTRACTOR will provide CITY with twenty-five (25)
copies of the Deliverables.
2.7 If CITY requests additional copies of the
Deliverables, CONTRACTOR will provide such additional copies and
CITY will compensate CONTRACTOR for its duplication co~ts.
2.8 CONTRACTOR will be responsible for employing or
engaging al! persons necessary to perform the Services. All
independent contractors of CONTRACTOR will be deemed to be directly
controlled and supervised by CONTRACTOR, which will be responsible
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for their performance. If any employee or independent contractor
of CONTRACTOR 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 independent contractor will be
discharged immediately from further performance under this Contract
on demand of the CITY’s project manage[.
SECTION 3 -DUTIES OF CITY
3.1 CITY will furnish or cause to be furnished the
specified services set forth in Exhibit "A" and such other
information regarding its requirements as may be reasonably
requested by CONTRACTOR. ~CITY shall cooperate with CONTRACTOR in
the performance by CONTRACTOR of its Services hereunder, including,
without limitation, providing CONTRACTOR with reasonable facilities
and timely access to data, information and personnel of CITY, its
suppliers and its customers; provided, however, if any confidential
data or information is furnished by CITY to CONTRACTOR, CONTRACTOR
shall execute a confidentiality agreement in the form set forth in
Exhibit ~E". CITY shall be responsible for the performance of its
personnel and agents and for the accuracy and completeness Of all
data and information provided to CONTRACTOR for purposes of the
performance by CONTRACTOR of its Services hereunder. It is
understood and agreed that CONTRACTOR’s services may include advice
and recommendations, but all decisions in connection with the
implementation of such advice and~ recommendations shall be the
responsibility of, and made bye CITY. In connection with its
services hereunder, CONTRACTOR shall be entitled to rely on all
decisions and approvals of CITY. CITY acknowledges and agrees that
CONTRACTOR is furnishing the Services and the Deliverables solely
for the informational purposes and internal use by CITY. CITY
further acknowledges and agrees that’the Services and Deliverables
will not be used by, or circulated, quoted, disclosed, or
distributed to, nor shall reference in any written document to the
Services and Deliverables be made to, any other person or entity,
except to one or more members of the City Council or the Utilities
Advisory Commission, or any of their successors, or as required by
applicable law.
3.2 The city manager will represent CITY for all
purposes under this Contract. Girish Balachandran is designated as
the project manager for the city manager. The project manager will
supervise the performance, progress, and execution of the Services,
and will be assisted by Jane Ratchye, the assistant project
manager.
3.3 If CITY observes or otherwise becomes aware of any
default in the performance of CONTRACTOR, CITY will give written
notice thereof to CONTRACTOR in a timely manner.
SECTION 4 - COMPENSATION
4.1 In consideration of the full performance of the
Services by CONTRACTOR, CITY wil! pay CONTRACTOR a total sum not
to exceed Two Hundred Twenty-Five Thousand Dollars ($225,000)
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payable within thirty (30) days of submission by CONTRACTOR Of its
itemized billings, in triplicate, in accordance with the following
fee and expense schedule set forth in Exhibit "B".
SECTION 5 -AUDITS
5.1 Upon reasonable prior notice, CONTRACTOR will permit
CITY to audit, at any reasonable time during the term of this
Contract and for three (3) years thereafter, CONTRACTOR’s billing
records pertaining to amounts billed to and paid by the CITY under
this Contract. CONTRACTOR further agrees to maintain and retain
such records for at least three (3) years after the expiration or
earlier termination of this Contract.
SECTION 6 -INDEMNITY/LIMITATION ON DAMAGES
6.1 CONTRACTOR shall 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, in
each case solely for death or bodily injury to any person, or real
or tangible personal property damage, to the extent directly and
proximately caused ~by CONTRACTOR’S, its. officers’, agents’,
subcontractors’ or employees’ negligent acts, or willful misconduct
in the performance of its obligations under this Contract;
provided, however, that if there also is fault on the part of CITY
or any entity or individual indemn’ified hereunder or any entity or
individua! acting on the -~ITY’s behalf, the foregoing
indemnification shall be on a comparative fault basis. As a
condition to the foregoing indemnity obligations, CITY shall
provide CONTRACTOR with prompt notice of any claim for which
indemnification shall be sought hereunder and shall cooperate in
all reasonable respects with CONTRACTOR in connection with any such
claim. CONTRACTOR shall be entitled to control the handling of any
such claim" and to defend or settle any such claim, in its sole
discretion, with counsel of its own choosing.
6.2 Except for CONTRACTOR’S indemnification obligations
under Section 6.1, CONTRACTOR shall not be liable to CITY for any
claims, liabilities, or expenses relating to its engagement under
this Contract for an aggregate amount in excess of one million
dollars ($I,000,000). In no event shall CONTRACTOR or its
personnel be liable for consequential, special, indirect,
incidental, punitive or exemplary loss, damage or expense relating
to its engagement under this Contract.
6.3 The limitation on liability provisions of this
Contract shall apply to the fullest extent of the law, whether in
contract, statute, tort (such as negligence) or otherwise and shall
survive the termination or expiration of this Contract.
SECTION 7 -WAIVERS
7.1 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
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deemed to be a waiver of any other term, covenant, condition,
provisions, ordinance or law, or of any subsequent breach or
violation of the same or of any other term, covenant, 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 term, covenant~ condition or provision of
this Contract or of any applicable law or ordinance.
7.2 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.
SECTION 8 -INSURANCE
8.1 CONTRACTOR, at its sole cost and expense, will
obtaih and maintain, in full force and effect during the term of
this Contract, the insurance coverage described in Exhibit "C",
insuring not only CONTRACTOR and its independent contractors, if
any, but also, with the exception of workers’ compensation,
employer’s liability, and professional liability insurance,
including CITY as an additional insured concerning CONTRACTOR’s
performance under this Contract.
8.2 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~°~0~transact insurance business in
the State of California. Any and all independent contractors of
CONTRACTOR retained to perform Services under this Contract will
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.
8.3 Certificates of such insurance, on standard Accord
forms, 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 provide that the insurance is primary
coverage and that the insurance company will .endeavor to provide
CITY’s clerk thirty (30) days’ prior written notice of cancellation
before such notice shall become effective, and that the City of
Palo Alto is included as an additional 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.
8.4 The procuring of such required policy or policies of
insurance will not be construed to limit CONTRACTOR’s liability
hereunder nor to fulfill the indemnification provisions of this
Contract. The policy or policies of insurance shall not limit the
amount of CONTRACTOR’S liability for any damage, injury, or loss
caused by or directly arising as a result of the Services performed
under this Contract, including such damage, injury, or loss arising
after the Contract is terminated or the term has expired.
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SECTION 9 -WORKERS’ COMPENSATION
9.1 CONTRACTOR, by executing this Contract, certifies
that it is aware of the provisions of the Labor-Code of the State
of California which require every employer to be insured against
liability for workers’ compensation o9 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 Services.
SECTION i0 -
SERVICES
TERMINATION OR SUSPENSION OF CONTRACT OR
i0.i The city manager may suspend the performance of the
Services, in whole or in part, or terminate this Contract, with or
without cause, by giving thirty (30) days’ prior written notice
therebf to CONTRACTOR; provided, however, if CONTRACTOR is in
default under this Contract, CONTRACTOR shall be entitled to
receive thirty (30) days’ prior written notice of the default from
CITY and a reasonable opportunity to cure such default, which
period of time shall not exceed thirty (30) ’days after the receipt
of notice by CONTRACTOR. Upon receipt of such notice, CONTRACTOR
will immediately discontinue its performance of the Services.
10.2 CONTRACTOR may terminate this Contract or suspend
its performance of the Services ~y ~iving thirty (30) days’ prior
written notice thereof to CITY;provided, however, if CITY is in
default under this Contract, CITY shall be entitled to receive
thirty (30) days’ prior written notice of the default, from
CONTRACTOR and a reasonable opportunity to cure such default, which
period of time shall not exceed thirty (30) days after the receipt
of notice by CITY.
10.3 Upon such suspension or termination by CITY,
CONTRACTOR will be paid for the Services actually rendered to CITY
on or before the effective date of suspension or termination,
together with simple interest calculated at the highest legal rate
permitted by California law, and payable on all undisputed amounts.
10.4 Upon such suspension or termination, CONTRACTOR will
deliver to the city manager immediately any and all copies of the
Deliverables whether or not further Deliverables are completed.
Notwithstanding anything herein to the contrary,
CONTRACTOR shall have the right to retain one copy of the
Deliverables evidencing its services for the CITY as required by
law, regulation, professional standards or reasonable business
practice.
10.5 The. failure of CITY to agree with CONTRACTOR’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 CONTRACTOR to fulfill its obligations under this Contract.
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SECTION Ii -ASSIGNMENT
ll.i This Contract is for the personal services of
CONTRACTOR~ therefore, CONTRACTOR 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 bne assignment will not be
deemed to be a consent to any subsequent assignment. Any
assignment made without the approval of the city manager 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 12 -NOTICES
12.1 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 CONTRACTOR:.Attention of the project director
at the address of CONTRACTOR recited above
SECTION 13 -CONFLICT OF .INTEREST
13.1 In accepting this Contract, CONTRACTOR covenants
that it presently has no interest, financial or otherwise, which
would constitute a conflict of interest under California law or the
Palo Alto Municipal Code or applicable professional standards of
the American Institute of Certified Public Accountants in any
manner or degree with the performance of the Services.
13.2 coNTRACTOR further covenants that, in the
performance of this Contract, it will not employ any contractor or
person having such an interest. CONTRACTOR certifies that no
person 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.
SECTION 14 -NONDISCRIMINATION
14.1 As set forth in the Palo Alto Municipal Code, no
discrimination will be made 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 that"
person. If the value of this Contract is, or may be, five thousand
dollars ($5,000) or more, CONTPiACTOR agrees to meet all
requirements of the Palo Alto Municipal Code pertaining to
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8
nondiscrimination in employment, including completing the requisite
form furnished by CITY and set forth in Exhibit "D".
14.2 CONTRACTOR agrees that each contract for services
with an~independent provider will contain a provision substantially
as follows:
"[Name of Provider] will provide CONTRACTOR
with a certificate stating that [Name of
Provider] is currently in compliance with all
Federal and State of California laws covering
nondiscrimination in employment; 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."
14.3 If CONTRACTOR 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 (625) for each person for each
calendar day during which such~~erson was subjected to acts of
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.
14.4 If CONTRACTOR is in default of the nondiscrimination
provisions of this Contract, CONTRACTOR will be found in material
breach of this Contract. Thereupon, CITY will have the power to
cancel or suspend, this Contract, in whole or in part, or to deduct
from the amount payable to CONTRACTOR the sum of two hundred fifty
dollars ($250) for each calendar day during which CONTRACTOR is not
in compliance with this provision as damages for breach of
contract, or both.
SECTION 15 -MISCELLANEOUS PROVISIONS
15.1 CONTRACTOR represents and warrants that it has
knowledge of the requirements of the 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. CONTRACTOR will comply with or ensure by its
advice that compliance with such provisions will be effected in the
performance of this Contract.
15.2 This Contract will be governed by the laws of the
State of California, excluding its conflicts of law.
990312 syn 0071580
15.3 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.
15.4 In any action brought to’enforce the provisions of
this Contract, each party will bear its own legal costs and
attorneys’ fees expended in connection with that action.
15.5 This document represents the entire and integrated
agreement between the parties and supersedes all prior negotia-
tions, representations, and contracts, either written or oral.
This document may be amended only by a written instrument, which is
signed by the parties.
15.6 All provisions of this Contract, whether covenants
or conditions, will be deemed to be both covenants and conditions.
15.7 The covenants, terms, conditions and provisions of
this Contract will apply to, and will bind, the heirs, successors,
executors, administrators, assignees, and Contractors, as the case
may be, of the parties.
15.8 If a court of competent jurisdiction finds or rules
that any provision of this CQnt~act or any amendment thereto is
void or unenforceable, the unaf~°ected provisions of this Contract
and any amendments thereto will remain in full force and effect.
15.9 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.
15.10 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.
15.11 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 15.11 shall take precedence in the event
of a conflict with any other covenant, term, condition, or
provision of this Contract.
15.12 Each party and its counsel have reviewed ~this
Agreement. Accordingly, the normal rule of construction to the
effect that any ambiguities are to be resolved against the drafting
party shall not be employed in the construction and interpretation
hereof.
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10
15.13 The provisions of California Civil Code section
1511(2), pertaining to force majeure causes excusing performance,
are incorporated herein by reference.
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:
Senior Asst. City Attorney
APPROVED:
Assistant City Manager
Director of Administrative
Services
Director of Utilities
Insurance Review
Mayor
DELOITTE & TOUCHE LLP
Name :
Title:
TaXpayer Identification No.
(Compliance with Corp. Code § 313 is
required if the entity on whose behalf
this contract is’ signed is a corporation.
In the alternative, a certified corporate
resolution attesting to the signatory
authority of the individuals s±gning in
their respective capacities is acceptable)
Attachments :
EXHIBIT "A" :
EXHIBIT "B" :
EXHIBIT "C" :
EXHIBIT "D" :
EXHIBIT ~’E" :
SCOPE OF SERVICES
FEE SCHEDULE
INSURANCE
NONDISCRIMINATION COMPLIANCE FORM
CONFIDENTIALITY AGREEMENT
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11
EXHIBIT A: SCOPE OF SERVICES
The City of Palo Alto Utilities (CPAU) Department has a nascent risk management program and
wishes to continually enhance it and employ additional sophistication and rigor in the process.
This scope of work sets out the tasks that will be completed with this goal in mind as well as the
key tasks to be performed for each phase of the work and deliverables associated with each phase
of the work.
Scope of Services:
The objective is for the CONSULTANT to assist CPAU in developing a framework for energy
risk management (for both electricity and natural gas), focusing on financial and administrative
risks associated not only with the current operating environment, but also the anticipated risks
that the Utilities Department will face as it transitions towards deregulation. The project will
consist of the following phases:
Phase 1:
1.1 Understand business plans, objectives and strategies
1.2 Review the risks and risk tolerances identified by management
1.3 Review management’s proposed approach ,frr risk management
1.4 Provide comments and suggestions t6 erffa~nce the proposed risk management approach
Phase 2:
2.1 Assist in identification of risk management infrastructure needs, based upon the results of
Phase 1 ’
2.2 Provide suggested modifications to existing draft policies and procedures, as necessary
2.3 Identify risk measurement methods and model/system alternatives
2.4 Develop a suggested risk management implementation plan for management’s
consideration
In performing the work in Phases 1 and 2, and in developing its comments and
recommendations, CONSULTANT will rely solely on the information CPAU provides
concerning transactions, strategies, objectives, controls and organizational structure.
Senior Matt agem en t Train ing:
CONSULTANT will prepare and deliver a training session, up to two days in length, as
appropriate, for senior management members of the City and its Utilities Department.
purpose of this session would be to educate key members of management and staffon:
¯fundamentals of risk management and importance in a utility environment
¯appropriate use of financial instruments
The
A-1
industry "best practices" in risk management
other significant issues relating to controlling transacting activities.
Phase 3:
This is the implementation phase of the project. The specific outline of this phase of~vork is
dependent upon the results of Phases 1 and 2. In addition, the level and nature of
CONSULTANT’S involvement may vary, depending of the level of assistance desired in
implementing the project. For these reasons, the scope of work in this area is broadly defined
at this time, but will be detailed at the conclusion of phases 1 and 2 of the project if CPAU
decides to assign CONSULTANT tasks in this phase. CPAU reserves the right to proceed
with work in this area after the conclusion of Phases 1 and 2. The role of CONSULTANT in
this phase could be:
An advisory role, whereby CONSULTANT provides periodic review ofprogre’ss and
serves as a "sounding board" for consultation and support on implementation questions
and issues;
Greater responsibility for project management and execution of the implementation
process; or
A hybrid of the tnvo roles described above.
If CPAU requests implementation assistance..CONSULTANT will provide an estimate of
fees and reach an agreement with CPAU p~or to performing any such work.
Key Tasks:
Following are the key work steps associated with phases 1 and 2 of the engagement, and possible
tasks that may be included in phase 3.
Phase I - The objective for Phase 1 will be to review and suggest enhancements to the risk
assessment and proposed risk management approach that has been developed by CPAU
management. This will consider both power and natural gas activities, implications of
operating under deregulation, and the interplay of the NCPA relationship and its impact on
the risk management process. As such, CONSULTANT will:
Interview key members of management, including Utilities Department, City Manager’s
office and Administrative Services Department.
Review City organizational structure including decision-making authority relative to
’commodity purchases.
Review management’s identified key business drivers such as gro~vth objectives,
forecasts, contribution o fUtilities Department to City revenues, debt service
requirements, etc.
Obtain an overview of significant existing customer contracts and their risk management
implications.
A-2
Obtain an overview of customer product structures management anticipates providing
under deregulation.
Obtain an overview of existing generation and supply resources(including contracts and
generation resources through.the NCPA relationship) and their risk management
implications.
Interview NCPA management (if necessary) and review documentation of recent NCPA
procedural developments to update CONSULTANT’s understanding of the NCPA
relationship.
Review management’s identified sources of market, credit and administrative risk
stemming from existing and planned strategies; and their proposed approaches for
managing such risks.
Review management’s defined risk tolerances based upon the risks and key business
drivers they have identified.
Obtain a description of the risk measurement methodologies management proposes to
employ in the risk management process.
Obtain a description of alternative hedging instruments and strategies management
proposes to employ in the risk management process.
Review CPAU’s internally developed Policies, Procedures, and Practices Document and
existing supply procurement processes.. :.. :
Prepm:e a report containing comments and recommendations concerning the proposed
risk management process.
Phase 2 - The objective for Phase 2 is to assist mgnagement in determining that the
organization and design of the risk management infrastructure is consistent with the
information analyzed in Phase 1 and to prepare CPAU to move for~v~ird with implementation.
In this effort, the aim is to meld the Phase 1 results with the work CPAU has already
accomplished on policies and procedures. CONSULTANT will:
Assist in identification of CPAU’s risk management organizational needs, including
functional authorities and responsibilities and segregation of duties.
Based upon the information reviewed and developed during Phase 1, and the
organizational needs outlined above, review existing draft policies for their consideration
of the fo.llowing key areas:
~Functional authorities and responsibilities
~Permitted and prohibited activities, and qualitative restrictions thereon
~Limit structure
~Techniques and measures for managing and mitigating market and credit risk
~Oversight procedures and reporting requirements
Prepare comments and edits of existing draft policies based on the results of the steps
above.
A-3
Based upon the suggested risk management framework, identify alternative systems
available to support those activities and make recommendations. This will include
consideration of CPAU’s existing models, and systems (from a conceptual and functional
standpoint only, but does not include quantitative testing or validation of the models or
systems).
Develop a detailed implementation plan for the risk management program.
Phase 3 -As noted above, a specific scope of work for the implementation phase is yet to be
defined. However, the types of tasks that may be involved in this phase include:
Information system selection, installation and testing
Detail design, testing and refinement of operational procedures and management
reporting processes
Quantitative model validation
Development of portfolio modeling techniques and related management training
Detail design and refinement of market or credit risk measurement methodologies
Development of detail counterparty credit evaluation and rating procedures
Timing and Staffing:
Timing, level of staffing and CONSULTANT’S on-site presence at Palo Alto’s offices will be
approximately as follows:
Project
Phase
Phase 1
Phase 2
Senior
Management
Training
Phase 3
Weeks
Required
2
3-4
l
TBD
Number
of Staff
2-3
2-3
TI3D
Location Where Work is Performed
Combination of on-site at CPAU’s offices and off-site.
Primarily off.site, with on-site visits as needed for meetings and to
review work product with management.
Preparation primarily off-site, with up to two days of training
sessions on-site. The sessions can be scheduled to suit
management’s needs. However, to promote organizational "buy-in"
to risk management, the sessions should be scheduled to take place
during Phase 1.
To be Determined. Generally implementation work is largely on-
site, however certain procedure such as quantitative testing can be
done off site.
A-4
Deliverables:
The deliverables associated with each phase of the work will be as follows:
Project
Phase
Phase 1
Phase 2
Training
Phase 3
Deliverable "
A report summarizing CONSULTANT’S comments and recommendations relating to CPAU’s risk
assessment and proposed risk management approach.
1. Outline of suggested changes and/or edits to existing draft policies and procedures reflecting
CPAU’s organizational structure and constraints. CONSULTANT’s review and comments
would cover at least the folloffing areas:
¯Functional Authorities and Responsibilities
¯Permitted Activities and Qualitative Limitations
¯Limit Setting Structure
¯Valuation Standards.
¯Market and Credit Risk Measurement and Management
¯Risk Monitoring and Oversight
= Reporting
= Coordination with NPCA Risk Management Program Procedures
2. Evaluation and recommendations for systems alternatives to support the risk managem~ent
structure with consideration given to CPAU’s existing models and systems
3. A detailed implementation plan
A t~vo day verbal training presentation, together W.!th appropriate visual aids and handouts relating
to the subject matter and case examples covered.
To be determined.
A-5
EXHIBIT B:FEE SCHEDULE
Fees are based upon the amount of time required at various levels of responsibility, plus actual
out-of-pocket expenses (travel, telephone, printing, etc.). The following are the hourly rates for
this project:
Hourly Rate
Partner $350
Senior Manager $300
Manager $265
Staff $160
These rates reflect a discount of approximately 30% from CONSULTANT’s standard hourly rate
schedule, and are subject to change as CONSULTANT’s standard rate schedule changes.
Professional fees for the outlined tasks are estimated as follows:
Phase 1 $ 35,000
Phase 2 55,000
Senior Management Training 7,500
Phase 3 $100,000
?
Total ., ..$197,500
CONSULTANT will endeavor to keep out-of-pocket expenses to a reasonable level by
scheduling travel for on-site visits in a prudent manner and performing work 0ff-site to the extent
possible. Out-of-pocket expenses are additional to the amounts above and are expected be
approximately 12- 15% of total professional fees. This contract maximum not-to-exceed
amount is $225,000. For work on Phase 1, Phase 2, and Senior Management Training, total
CONSULTANT fees shall not exceed $115,000, subject to the revisions below. No work will be
done in Phase 3 until a detailed scope of work is completed and CONSULTANT receives
CPAU’s written authorization.
CONSULTANT’s work in Phases 1 and 2 is based upon the understanding that CPAU
management has already performed a risk assessment, developed a proposed risk management
approach and drafted risk management policies and procedures for CPAU’s electricity and
natural gas activities. As such it is contemplated that CONSULTANT’s work during these
phases will entail a review of the risk assessment and related documentation and policies already
prepared by management, with the goal of enhancing that work and helping to advance CPAU
toward implementation. If CONSULTANT’s work were expanded to include performing the
risk assessment and developing the risk management approach (as opposed to reviewing,
evaluating and providing recommendations relating to management’s work in this area), or initial
drafting of policies or significant portions thereof, the above fee would be subject to revision. As
such, during phase 1 CONSULTANT will make a determination, after having reviewed the work
prepared by management, whether the estimated fees set forth above for the completion of
Phases 1 and 2 are reasonable, or whether additional fees or a reallocation of focus are required.
No such additional work shall be performed, or additional fees incurred, until CONSULTANT
receives CPAU’s written authorization.
B-1
EXHIBIT C: INSURANCE
Refer to the insurance certificates attached.
C-1
Aon Global Professional Services
VERIFICATION OF INSURANCE
We, the undersigned Insurance Brokers, hereby verify that ZC Specialty Insurance Company has
issued the following described insurance which is in force as of the date hereof:-
PROFESSIONAL INDEMNITY INSURANCE
NAME OF ASSURED:DELOITTE & TOUCHE LLP (U.S.A.) and others as more fully
described in the Policy.
POLICY NO.INSURER PERIOD
ZS 97MIN-P100002 ZC Specialty Insurance Company 12:01 a.m. June 1st, 1998
to
12:01 a.m. June 1st, 1999
LIMIT:
CANCELLATION:
US$1,000,00Q (an annual aggregate)
This policy is non-cancellable during the period shown.
SUBJECT TO THE TERMS, CONDITIONS, EXCLUSIONS AND LIMITATIONS OF THE
POLICY.
This document is fumished as a matter of information only. The issuance of this document does
not make the person or organization to whom it is issued an additional Assured, nor does it
modify in any manner the contract of insurance between the Assured and the Insurer. Any
amendment, change or extension of such contract can only be effected by specific endorsement
attached thereto.
ISSUED TO:City of Palo Alto,
Purchasing and Contract Administration,
P.O. Box 10250,
Palo Alto, CA 94303.
ISSUED AT:
DATE:
Montreal, Quebec
February 25th, 199~
Per:
Divisional Executiv~’Director
J3DTT~CORR\VOF~8-govoI~SOTV155 DOC 2
1801 McGill College Ave. ¯ Suite 700 ¯ Montreal, Que., Canada H3A 2N4 ¯ tel: (514) 288-2273 ¯ fax: (514) 982-5175
PRODUCER THIS CERTIFICATE IS ISSUED AS A MATrER OF INFORMATION
AON RISK SERVICES INC OF NY ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATEHOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND ORTWO WORLD TRADE CENTER ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
NEW YORK, NY 10048 COMPANIES AFFORDING COVERAGE
COMPANYA
COMPANY
B
COMPANY
c
COMPANY
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD
INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,
EXCLUSIONS AND CONDITIONS OF SUCH POLICieS. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
212-441-2660
INSURED
DELOITTE & TOUCHE USA LLP
TEN WESTPORT ROAD
WILTON, CT 06897-0820
OR TYPE OF INSURANCE
~_~.E_~NERAL LIABILITY "
A ~_~MMERCIAL GENERAL LIABILITY
~OMOBILE LIABIL~
~ ~ ~Y AUTO
~ALL OWNED AUTOS
~SCHEDULED AUTOS
C
EXCESS LIABILITY -UMBRELL~ FORM
OTHER THAN UMBRELLA FORM
WORKERS COMPENSATION AND
INCL
EMPLOYERS’ LIABILI’PI’
THE PROPRIETOR/~PARTNERS/EXECUTIVE
~OFFICERS ARE:EXCL
OTHER
TRANSPORTAT’ION INSURANCE CO.
CONTINENTAL CASUALTY CO.
TRANSCONTINENTAL INS. CO.
POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATIONDATE (MMIDD/YY) DATE (MM/DD/YY UMITS
GL166789430
BUAI66789444
BUAI66789458 TX
PHYSICAL DAMAGE
$500 (COMP/COLL) DEDU
6101198
6/01/98
., ~/~1/98
6101198
6/01/99
6101199
6/01/99
6/01/99
GENERAL AGGREGATE
PRODUCTS - COMP/OP AGG
PERSONAL & ADV INJURY
EACH OCCURRENCE’
FIRE DAMAGE (Any one fi~’e)
MED EXP (Any one pecson}
COMBINED SINGLE LIMIT
BODILY INJURY(Per person)
BODILY INJURY(Per accident)
PROPERTY DAMAGE
$
$
$
$
$
$
3,000,000
2,000,000
1,000,000
1,000,000
1,000,000
i0,000
$1,000,000
$
AUTO ONLY - EA ACCIDENT
OTHER THAN AUTO ONLY:
EACH ACCIDENT
$
$
AGGREGATE
EACH OCCURRENCE
AGGREGATE
x l WCSTATU-ITORY LIMITS
EL EACH ACCIDENT
EL DISEASE -POLICY LIMIT
EL DISEASE - EA EMPLOYEE
1,000,000
1,000,000
1,000,000
WC166789427
DESCRI~ION OF OPERATIONSILOCATIONSNEHICLES/SPECIAL EEMS
Certificate Holder is included as an additional insured as respects work performed under
contract.
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THECity of Palo Alto, its officers; agents
EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL ~]{ MAILa~d employees
Purchasing and Contract Administration I 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT.
P.O. Box 10250 ~~
Palo Alto, CA 94303 Au~uzp~..~NT.~,~-~." [ __ . ~381632000
PART II - CERTIFICATION OF NONDISCRIMINATION SECTION 410
Certification of Nondiscrimination:
As suppliers Qf 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 origin, ancestry, disability, or sexual preference; that they are in compliance with
all Federal, State, and local directives and executive orders regarding nondiscrimination in
employment.
Firm:
Signature:
Title:.
D~te:
CITY OF PALO ALTO RFP 109355 PAGE 1 OF 1
EXHIBIT D
CERTIFICATE OF ACKNOWLEDGMENT
(Civil Code S 1189)
STATE OF )
) SS.
COUNTY OF )
On ~~~/~/ /~?, before me,
a Notary Public in. a~9~’ for’ said County an State, personally
appeared ~~~/~---~ , pe’rsonally known to me
or proved t6 me on the bas~s of satisfactory evidence to be the
person(q) whose name(~) is/a~e subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in
his/he~/thekr authorized capacity(i~s), and that by his/h~r/th~ir
signature(~) on the instrument the person(~, or the entity upon
behalf of which the person(~) acted, executed the instrument.
WITNESS my hand and official seal.
of Notary Public
ELENA A. PASCASCiO
Comm. # 1084830
Los Angeles
990312 syn 0071580
CONFIDENTIALITY AGREEMENT
EXHIBIT E
This Confidentiality Agreement, dated a~s of ,
"Agreement") is entered into between the City of Palo Alto, a
chartered city organizedand operating under the laws of the State
of California ("the City") and Deloitti & Touche LLP, a Delaware
limited liability partnership (~Entity") (each a "Party", but,
collectively, "Parties"), in reference to the following facts and
circumstances:
RECITALS:
Ao The City has engaged Entity to provide certain risk
management consulting services to the City (~Services")
B. In connection with the performance of the Services,
each Party desires that the fact of such discussions and
consideration of any Material (as defined herein) provided by it or
on its behalf to the other Party or the other Party’s
Representatives (as defined herein) shall be kept confidential.
NOW, THEREFORE, in consideration of the foregoing
recitals and the agreements contained herein, and for other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the.,Pafties, intending to be legally
bound, agree as follows:
ARTICLE I.DEFINITIONS
Section I.i Certain Defined Terms. For purposes of
this Agreement, the following teris shall have the following
meanings, unless the context clearly indicates otherwise:
(a) ~ ,,Representatives".means the partners, principals,
officers, directors, employees, lega! counsel, financial advisers,
accountants, consultants and other agents of a Party or any of its
affiliates.
(b) "Material" means any and all information, data,
analyses, documents, and materials, in oral, written, computer-
usable, or other tangible or intangible forms, whether in draft or
final form, which may include, but is not limited to, discoveries,
ideas, know-how, concepts, techniques, maps, designs,
specifications, drawings, blueprints, tracings, diagrams, models,
samples, spreadsheets, flow charts, energy load data, computer
programs, disks, diskettes, tapes, marketing plans, customer names
and other technical, financial or business ’information, furnished
or made available by a Party or its Representatives to the other
Party or its Representatives, and marked or identified as
"confidential" or ~proprietary information", but does not include
information, data, analyses, documents, or materials that (i) are,
when furnished, or, thereafter, become generally available to the
public other than as a result of a disclosure by the receiving
Party or its Representatives in breach hereof, or (2) are already
990311 syn 0071593
in the possession of or become available to the receiving Party or
its Representatives on a non-confidential basis from a source other
than the delivering Party or its Representatives, (3) the receiving
Party or its Representatives independently developed them or any of
them without a violation of this Agreement, or (4) are disclosed by
the receiving Party or its Representatives in connection with any
judicial or other quasi-judicial proceeding involving the Parties
relating to this Agreement or the Services.
ARTICLE CONFIDENTIALITY
Section 2.1. Confidentiality Obligation. Except as
otherwise expressly agreed, in writing, by the other Party, or as
required by law, each Party .shall, and shal! cause its
Representatives to, (a) keep confidential for a period of two (2)
years after the expiration or earlier termination of this Agreement
(I) ~he terms, conditions, or other facts with respect to the
electric and natural gas sales forecast data provided in connection
with the Services for analytical purposes, and (2) all Material,
and (b) use (I) in connection with the Services the facts, terms,
and conditions referred to in clause (a) above and (2) all Material
solely for the purpose of performing the Services and for no other
purpose or use; provided, however,, that a Party may disclose the
facts, terms, and conditions referred to in clause (a) above, and
any Material, only to those of its R#presentatives who need to know
such information for the purpose 9f performing the Services if, but
only if, prior to being told of-such matters or being given access
to any Material, such Representatives are each informed of their
confidentiality or the proprietary character thereof and the
requirements of this Agreement. A Representative shall be deemed
informed of the confidentiality thereof if the Material is
identified as ~confidential" or "proprietary information."
Section 2.2 Compelled Disclosure.
(a) If.a Party or its Representative becomes subject to
a request for information, subpoena, or a requirement of a court of
competent jurisdiction, administrative agency or governmental body,
or by any law, rule, regulation, subpoena, or any other
administrative or legal process, or by applicable regulatory or
professional standards, including requests under the California
Public Records Act or Federal. Freedom of Information Act, to
disclose any Material, or any part thereof, or any other matter
required by Section 2.1 to be kept confidential, such Party (I) to
the extent not prohibited by law or regulation will promptly notify
the other Party of the existence, terms, and circumstances of such
requirement(s) so that the other Party may seek an appropriate
protective order or waive compliance with the provisions of this
Agreement, and (2) will, and will cause its Representatives to,
reasonably cooperate with the other Party in seeking a protective
order or other assurance that confidential treatment will be
accorded to the disclosed Material, or any part thereof, or other
matter.
(b) If a Party that has complied with Section 2.2(a) is
990312 syn 0071593
2
required, after consultation with counsel, to make disclosure in
response to a requirement described in Section 2.2(a), such Party
may make such disclosure without liability hereunder
notwithstanding the absence of a protective order or waiver of¯
compliance hereunder. If a Party is required, after consultation
with counsel, to make disclosure pursuant to a requirement of law
or stock exchange.listing agreement, ’such Party may make such
disclosure without liability hereunder, but will use reasonable
efforts to consult with the other Party and to inform the other
Party of the required disclosure prior to making such disclosure.
In the event any such disclosure is required, only that portion of
the Material which such Party is required to disclose shall be
furnished, and such Party shall exercise all reasonable efforts to
ensure that confidential treatment will be accorded the Material.
Section 2.3 Ownership and Return of Material. All
Mat~r~al shall be and remain the property of the Party providing
it. Nothing in this Agreement shall be construed as granting any
rights in or to the Material to the Party or its Representatives
receiving it. Upon the written request of a Party, all Material,
including all copies thereof, shall be promptly returned to the
requesting Party or destroyed. If any Material is destroyed, such
destruction shall be certified, in writing, by the Party destroying
or causing the destruction to the requesting Party. Entity shall
have the right to retain any summar±es, analyses, notes or extracts
prepared or caused to be preparedI by it which are based on or
contain portions of the City’s Material evidencing its Services to
the City; provided, however, Entity shall maintain the
confidentiality of the City’s Material in accordance with the terms
of this Agreement and applicable law, and this obligation shall
survive the expiration or termination of this Agreement.
Section 2.4 Responsibility for Representatives. Each
Party will be responsible for any breach of this Agreement by its
Representatives.
ARTICLE 3.MISCELLANEOUS
Section 3.1 Enforcement. .The Parties agree that
irreparable damage may occur if this Agreement were not performed
in accordance with its terms or were ~ otherwise breached.
Accordingly, a Party will be entitled to seek an injunction or
injunctions to prevent breaches of this Agreement and to enforce
specifically its provisions in any court of competent jurisdiction,
in addition to any other remedy to which the Party may be entitled
by law or in equity.
Section 3.2 Entire Agreement~This Agreement
constitutes the entire understanding of the Parties with respect to
the subject matter hereof. This Agreement may be amended only by
an agreement, in writing, executed by the Parties.
Section 3.3 Severability. If any provision of this
Agreement is held by a court of competent jurisdiction to be
unenforceable, the remaining provisions shall remain in full force
990312 syn 0071593
3
and effect. It is declared to be the intention of the Parties that
they would have.executed the remaining provisions without including
any that may be held unenforceable.
Section 3.4 Headings. Descriptive headings are for
convenience only and will not control or affect the meaning or
construction of any provision of this Agreement.
Section 3.5 Counterparts. This Agreement may be
executed in two or more counterparts, each such executed
counterpart being an original instrument but together constituting
one agreement.
Section 3.6 Notices. Any notices, consents, requests,
instructions, approvals and other communications required or
permigted to be given, served or delivered pursuant to this
Agreement shall be deemed to have been given, served or delivered
(a) on the second business day after being deposited in the United
States mail, registered or certified and with proper postage
prepaid, (b) on the first business day after being deposited with
Federal Express or any other recognized overnight courier services
with proper fees prepaid or (c) on the business day on which it is
sent and received by fax (provided it is received during normal
business hours; otherwise, on the next business day),
If to Entity:DELOI~TE’~ TOUCHE LLP
Capiti~ Markets Group
i000 Wilshire Boulevard
Los Angeles, CA 90017
Phone: (213) 688-0800
Fax: (213) 888-0100
If to the City:CITY OF PALO ALTO
250 Hamilton Avenue
P. O. Box 10250
Palo Alto, California 94303
Phone: (650) 329-2171
Fax: (650) 329-2646
Attn: Senior Asst. City Attorney
or to such other address or fax number as any party may, from time
to time, designate in a written notice given in a like manner.
Section 3.7 Successors and Assigns. This Agreement
shall be binding upon, and inure to the benefit of, the Parties and
their respective successors and assigns, but shal! not be
assignable by either Party without the prior written consent of the
other Party.
Section 3.8. Choice of Law. This Agreement will be
governed by and construed and enforced in accordance with the laws
of the State of California, without giving effect to the conflict
of laws principles thereof.
990312 syn 0071593
Section 3.9. Term. This Agreement shall be for a two-
year term, unless earlier terminated by a party on ninety (90)
days’ prior written notice.
Section 3.10. Advice of Counsel. Each Party and its
counsel have reviewed this Agreement. A~cordingly, the normal rule
of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the
construction and interpretation hereof.
IN WITNESS WHEREOF, the Parties hereto have caused this
Agreement to be executed’ by their respective duly authorized
representatives as of the date first written above.
CITY OF PALO ALTO
By:
City Manager
APPROVED AS TO FORM:
DELOITTE & TOUCHE LLP
By:.,By:
Senior Asst. City Attorney ,Name:
Its:
APPROVED:
By:
Director of Utilities (Compliahce with Corp. Code ~ 313 is required if
the entity on whose behalf this contract is
signed is a corporation. In the alternative, a
certified corporate resolution attesting to the
signatory authority of the individuals signing
in their respective capac.ities is acceptable),
990312 syn 0071593
5
CERTIFICATE OF ACKNOWLEDGMENT
(Civil Code S 1189)
STATE OF C~L~IA ) so.
COUNTY OF )
On ~~ /~ , /~ before me, ~ a
Notary~iblic in ~ for-~d County and State, personally appeared
~ ~~~ , personally kno= to me~or ;r~d
~ on the basis of ~atlsfactory ~e to be the person~
whos~ name(~) is/~ subscribed to the within instrument and
acknowledged to me that he/s~/t~ executed the same in
his/~~ authorized capacity~), and that by his/~/t~
signature~ on the instrument the person~, or the entity upon
behalf of which the person(~ acted, executed the instrument.
WITNESS my .hand and official seal.
Comm. # 1084830
NOTARY PUBLIC- CALIFOR#;IA
Los Angeles County
kl’t Com,’n. Expires Jan. 28, 2000
.S.~_gnature of/Notary Public
STATE OF CALIFORNIA
COUNTY OF
On . , , before me, , a
Notary Public in ~nd 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
990312 syn 0071593
6