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HomeMy WebLinkAboutStaff Report 261-10TO: HONORABLE CITY COUNCIL FROM: CITY MANAGER DEPARTMENT: UTILITIES DATE: JUNE 21, 2010 CMR: 261:10 REPORT TYPE: CONSENT SURTECT: Adoption of a Resolution Approving a Professional Services Agreement between the Northern California Power Agency and the Cities of Alameda, Palo Alto and Santa Clara for Electric Transmission, Generation and Regulatory Consulting Services RECOMMENDATION Staff recommends that the City Council adopt a resolution approving and authorizing the City Manager to execute the Professional Services Agreement between the Northern California Power Agency and the Cities of Alameda, Palo Alto and Santa Clara for Electric Transmission, Generation and Regulatory Consulting Services. BACKGROUND The Northern California Power Agency (NCPA) is a joint powers agency whose members are municipal electric utilities including the City of Palo Alto. NCP A arranges for delivery of the City's electric power and manages electric resourees that Palo Alto jointly owns with other NCPA members. In 2003, Palo Alto along with two other NCP A members, the Cities of Alameda and Santa Clara, requested that NCPA provide professional consulting services related to electric transmission, power generation, regulatory issues, and electric market design issues affecting the thrce cities. The Cities of Palo Alto, Alameda, and Santa Clara (collectively the Bay Area Municipal Transmission Group, or BAMx) required consulting services unique from other NCPA members, because of the BAMx members' location in the Bay Arca, an area that has transmission constraint~. Prior to 2003, City of Palo Alto had a contract with Flyrm Resource Consultants, Inc. (Flyrm RCI) to provide regulatory and technical consulting services for the City's electric utility. Following the 2000/2001 California electricity market crisis, the California Independent System Operator (CAISO) initiated a major redesign of the electricity markets, which thc City participated in with the consulting assistance of Flyrm RCI. The Cities of Palo Alto, Alameda, and Santa Clara identified common interests in advocating for certain market design proposals and hence the formation of BAMx. Recognizing their need for technical and regulatory CMR: 261:10 Page 1 of3 consulting services, the BAJ'vlx members considered ways to reduce costs by sharing a consultant. The options considered included forming a new joint powers agency that would then retain a consultant; entering into three separate consulting agreements with one consulting company; or working through NCPA. At the time the members decided that the best alternative was to ask NCPA to provide the consulting services, thereby reducing administrative costs and facilitating coordination with other NCPA members when common interests were identified. The wider NCPA membership was not engaged in the issues of interest to BAMx, so on March I, 2003 NCPA entered into a consulting agreement with Flynn RCI to provide these services to the BAMx members. Since March 2003, Flynn RCI has been representing BAMx in Bay Area electric transmission expansion planning processes, at CAISO proceedings related to electric market design in . Califorula, in filings at the Federal Energy Regulatory Commission, and in other regional electric transmission planning venues. An early success for BAMx was the implementation of a single hourly market price that is charged to electric load in Northern California. Earlier proposals would have had electric customers paying different prices according to their location on the electric grid. For customers of Palo Alto's electric utility this would have meant exposure to hlgher anticipated market prices because of the City's location in the transmission constrained Bay Area. BAMx, through its consultant, has also advocated for improved reliability of electricity transmission service in to the Bay Area, and has influenced the CAISO's electric transmission planning process to provide for more effective stakeholder participation. The current contract between NCPA and Flynn RCI expires on June 30, 2010 and NCPA staff is preparing a new agreement to continue the consulting services for Fiscal Year (FY) 2011. For new consulting agreements executed by NCPA on behalf of one, or a subset of, NCPA members, NCPA now requires that those members enter into a Professional Services Agreement with NCPA. DISCUSSION The Professional Services Agreement between NCPA and the BAMx members (Attachment B) states that NCPA is perfonning these services at the request of the BAMx members, and formalizes NCPA's role in processing invoices from Flynn RCI and allocating the monthly charges to eaeh BAMx member. The allocation of charges between the BAMx members is in proportion to eaeh member's share of energy delivered in the calendar year prior to the contraet term. For the contract period (July 1,2010 through June 30, 2011), Palo Alto's share is 23.3% based on energy deliveries in calendar year 2009. The agreement also eontains provisions that limit NCPA's liability and that of non-participating NCPA members. RESOURCE IMPACT The City's share of the I'lynn RCI contract is incorporated into the City's NCPA budget for FY 2011. The Consulting Agreement between NCPA and Flynn RCI (attached for information as Attachment C) specifies a not-to-exceed contract amount of $750,000 for FY 2011. NCPA wiIl also charge a fee for billing and contract preparation of $625 per month. The City's share of the total cost will be up to a maximum of $176,444 for the one-year eontraet term. CMR: 261:10 Page 2 of3 The value to the City from participation in the BAMx group is the continued advocacy for fair and equitable clectric market rules and effective stakeholder participation in electric transmission planning processes. BAMx is currently taking a lead role in advocating for rigorous economic and needs analyses in the CArSO's latest transmission planning proceedings to build new transmission to potential renewable electric resource sites in remote locations. By the CAISO's own estimations this new transmission could triple the charge to electric utilities for transmission access, currently around $10 million a year for the City. POLICY IMPLICA nONS There are no policy implications. ENVIRONMENTAL REVIEW The provision of these serviees do not constitute a project pursuant to Seetion 21065 of the California Public Resources Code, thus no environmental review under CEQA is required. ATTACHMENTS A. Resolution B. Professional Services Agreement between NCP A and The Cities Of Alameda, Palo Alto And Santa Clara C. Consulting Services Agreement between NCP A and Flynn Resource Consultants Inc. PREPARED BY: DEBRA LLOYD "'D L Senior Resource Planner REv:rEWED BY: JANERATCHYE ~..fi'rJK. Assistant Director, Utilities Resource Management DEPARTMENT APPROVAL: ~,.0 '1i'IA-- /J M~¥NE j "'--'-"'-- City Manager CITY MANAGER APPROVAL: CMR: 261:10 Page 3 of3 . , . . " '''-{_. ATTACHMENT A NOT YET APPROVED Resolution No, .-c:c---:::-::- Resolution of the Council of the City of Palo Alto Approving the Professional Services Agreement between the Northern California Power Agency and the Cities of Alameda, Palo Alto and Santa Cara for Electric Transmission, Generation and Regulatory Consulting Services WHEREAS, the City of Palo Alto ("City"), a municipal utility and a chartered city, is a member of the Northern California Power Agency ("NCP A"); and WHEREAS, in 2003, Palo Alto, along with two other NCPAmembers the Cities of Alameda and Santa Clara, formed the Bay Area Municipal Transmission Group ("BAMx"); and WHEREAS, in 2003, BAMx requested that NCPA provide professional consulting services related to electric transmission, power generation, regulatory issues, and electric market design issues affecting the BAMx members; and WHEREAS, since 2003 NCPA has had a contract with Flynn Resource Consultants, Inc, ("Flynn ReI") to provide these consulting services to the BAMx members; and WHEREAS, the current contract between NCPA and Flynn RCI expires on June 30, 2010 and NCPA staff is preparing a new agreement to continue the consulting services for Fiscal Year (FY) 2011; and WHEREAS, for new consulting agreements executed by N CPA on behalf of one, or a subset of, NCPA members, NCPA now requires that those members enter into a Professional Services Agreement with NCPA; and WHEREAS, the Professional Services Agreement specifies the terms and conditions under which NCP A will procure the requested professional consulting services and allocate charges between the BAMx members, NOW, THEREFORE, the Council of the City of Palo Alto does RESOLVE as follows: 1 lOO615,yn 6051220 NOT YET APPROVED SECTION 1. The Council hereby approves the Professional Services Agreement Between Northern California Power Agency and the Cities of Alameda, Palo Alto and Santa Clara. The City Manager or designee is hereby authorized to sign the agreement on behalf of the City of Palo Alto. SECTION 2. The Council fmds that the adoption of this resolution does not meet the definition of a project under Public Resource Code Section 21065, thus, no environmental assessment under the California Environmental Quality Act is required. INTRODUCED AND PASSED: AYES: KOES: ABSE1"-iT ABSTENTIOKS: ATTEST: City Clerk APPROVED AS TO FORM: . Deputy City Attorney 100615 syo 6051220 2 Mayor APPROVED: City Manager --.-=~------ Director of Utilities Director of Administrative Services I PROFESSIONAL SERVICES AGREEMENT BETWEEN NORTHERN CALIFORNIA POWER AGENCY AND THE CITIES OF ALAMEDA, PALO ALTO AND SANTA CLARA ATTACHMENT B (THE "BAY AREA MUNICIPAL TRANSMISSION SERVICES AGREEMENT" OR "BAMx AGREEMENT'1 This Professional Services Agreement ("Agreement") is made by and between the NORTHERN CALIFORNIA POWER AGENCY ("NCPA" a joint powers agency and the Cities of Alameda, Palo Alto and Santa Clara (such cities each being a 'Contracting Member" and jointly referrad to as "Contracting Members" or "BAMx Participants'). NCPA and the Contracting Members are together sometimes referred 10 herein individually as a "Party" and collectively as "the Parties." This Agreement Is made as of July 1, 2010 (the "Effective Date") in Roseville, California. Section 1, RECITALS ,This Agreement is entered into based on the follovAng facts, among others: 1.1 NCPA is a public agency created by a joint powers agreement established under Califomia law for the purpose of assisting Its members in the efficient use of their common powers. 1.2 Contracting Members are engaged in, among other things, transmitting and distributing electric power within theIr respective corporate limits. Contracting Members are also eech a member of NCPA. Contracting Members jointly desire that NCPA provide Contracting Members with the Services described In this Agreement. 1.3 Article III, section 3 of the "Amended and Restated Northern California Power Agency Joint Powers Agreement" (as amended and effuctive January 1,2008) (hereinafter "JPA') entitled "Powers and Functions' provides that 'none of the debts, liabilities or obligations of NCPA shall be the debts, liabilities or obligations of any of the members of NCPA unlesS assumed In a . particular case by resolution of the governing body of the member lobe charged." Notwithstanding the foregoing, Article V, section 1 of the JPA entitled "General Provisions' provides that "Illhe governing Commission of NCPA is authorized to procure public liability and other insurance as it deems advisable to protect NCPA and each of the parties hereto, charging the cost thereof to the operating costs of NCPA: 1.4 Contracting Members desire to secure NCPA's Services under this Agreement in a manner that balances their interests and the interests of other NCPA members wflh the ongoing financial viability and professional responsibilities of NCPA. Accordingly, Contracting Members desire to secure NCPA's Services under this Agreement by acceptlng a limited Insurance based recourae against NCPA, with thli' option of procuring additional insurance at Conlracting Members' sole expense. By so doing, the Parlies thereby ensure that NCPA will substantially limit Its risk for the provision of such Services and allocates risks back to the Contracting Members In the event NCPA is not adequately insured. 1 BAM>< PROFESSIONAL SERVICES ACREllMENT NOW THEREFORE, In consideranon of ltie mutual covenants and promises set forth, NCPA and Contra~ting Members agree as follows: Section 2. DEFINITIONS Whenever used in ltiis Agreement with initial capitalization, these terms shall have the following meanings as applicable, whether in the Singular or plural: . 2.1 . "Good Utility Prectice" shall mean any of the practices, methods and acts·i'lngaged In or approved by a significant portion of the electric uUlily industry during the relevant time period, or any of the practices, methods and acts which, in the exercise of reasonable judgment in light of the facts known at the time the decision was made, could have been expected to accompliSh the desired result of the lowest reasonable cost consistent wilh good business prectiCeS, reliability, safety and expedition. Good Utility Practice is not intended to be limited to the optimum practice, . method or act to the exclusion of all others, but rather to be acceptable practices, methods, or acts generally accepted in the region and consistently adhered to by the electric utility industry. . 2.2 rtNCPA Members" shall mean the signatories to the JPA or those agencies which have executed an Associate Member Agreement with NCPA. 2.3 "Stranded Costs' shall mean all costs incurred by NCPA in providing Services to Contracting Members under this Agreement that could not reasonably be avoided by NCPA from the date It receives a written Notice of Termination. Such costs may Include, but not be limited to, salary and employment costs, rent, utilities, or contracts incurred to provide Services under this· Agreement. In this regard, Contracting Members acknowledge that NCPA will be entering into professional selVices agreements with third persons under the terms of this Agreement, and that sums owing to such third persons may become Stranded Costs upon termination of this Agreement Section 3. SERVICES TO BE PROVIDED; AUTHORIZED REPRESENTATIVES; STANDARD OF PERFORMANCE . 3.1 This Agreement Is entered into by the Parties in order for NCPA to provide selVices to Contracting Members for the services described in Exhibit A hereto ('Services"). The Services do not include supelVislon of the performance of any of the third persons with whom contracts are entered into; such supelVlsion shall be provided by the Contracting Members. 3.2 The fotiowing are the Authorized Representatives of the parties for contract administration purposes under this Agreement: Donna Stevener, CFO, Donna.Stevener@ncpa.com Northern California Power Agency 651 Commerce Drive Rosevnle, CA 95678 916-781-4244 916-781-4255 fax 2 BAMx PROFESSIONAL SERVICES AGREEMENt Debra Lloyd, Debra.Lloyd@Cityofpaloalto,org 650-329-2369 Valerie Fong, Valerie.Fong@cityofpaloalto.org 650-329·2277 Fax 650-326-1507 City of Palo Alto P.O. Box 10250 Palo Alto, CA 94303 Gilillh Balachandran, Girish@alamedamp.com . General Manager Alameda Municipal Power 2000 Grand Street P,O.BoxH Alameda, CA 94501-0263 510-748-3908 510-748-3956 Brad Wetstone, wetstone@alamedamp.com Alameda Municipal Power 2000 Grand Street P.O.BoxH Alameda, CA 94501-0263 510-814-6412. 510-814-5699 Ken Sims, ksims@svpower.com 408-615-6678 Diana Shlles, Dshiles@svpower.com 408-615-6672 Fax 408·261·2717 1601 Civic Center Or, # 201 Santa Clara, CA 95050 No Authorized Representative is authorized to amend any provision of this Agreement except in accordance with Section 12.16. . 3.3 Standard of Performance. NCPA will perform the Services using that level of skill and attan1fon reasonably required to complete the Services in a competent and timely manner. 3.4 . Assignment of Personnel. NCPA shall assign only competent personnel to perform Services pursuant to tl)ls Agreement. In the event that Contracting Members, in their sole discretion, at any lime during the term of this Agreement, joinUy desire the reassignment of any such persons, NCPA shall, Immediately upon receiving notice from each Contracting Member of such desire of the Contracting Members, reassign such person or persons. 3 BAMx PROFllSSIONAL SERVICES AGREEMENT 3.5 Time. NCPA shall devote such lime to the performance of Services pursuant to . this Agreement as may be reasonably necessary to meet the standard of performance provided in Section 3.3, above and to satisfy NCPA's obligations hereunder. Section 4,' TERM AND TERMINATION 4.1 Authorizationto Perform Services. NCPA is not authorized to perform any Services or incur any costs whatsoever under the terms of this Agreement until its receipt of a written resolution and/or other appropriate/applicable authorization from each Contracting Member's governing body confirming each Contracting Member'S authority to enter into this Agreement and confirming.thal each Contracting Member has allocated funds for and approved contract payments to NCPA under this Agreement. 4.2 Term. The term of this Agreement shall begin on the Effective Date and shall end on June 30,2011. 4.3 Early T!)rmination and Stranded Costs. This Agreement may be terminated by either NCPA or by the Contracting Members, upon 30 days written notice to all other Parties ("Notice of Termination"). Provided, however, that a Notice ofTerminatfon on behalf of the Contracting Members shalf be executed by each Contracting Member to be effective. In the event of an early termination, Contracting Members shalf pay NCPA for all fees and costs required under this Agreement through the effective date of their Notice of Termination plus all Stranded Costs. Upon payment of the above amounts, no Parties shall have any further obligations under this Agreement except as otherwise set forth in Section 5.7 regarding the survival of defense and indemnity obligations. Section 5. INDEMNITY AND INSURANCE 5.1 Limitation of NCPA's Liability. 5.1.1 Except as provided in this section 5.1, NCPA shan not at any time be liable for any injury or damage occurring to Contracting Members or any other person or property from any cause whatsoever arising out of this Agreement. 5.1.2 The provisions of section 5.1.1 shall not apply where the injury or damage occurring to Contracting Members is caused by the negligence of NCPA or of any employee, agent or contractor of NCPA; provided that any liability under this SUbsection Is limited to the extent of the actual coverage and coverage limits of the NCPA insurance policies described in this Section 5 .. 5.1.3 Notwithstanding Section 5.1.2 above, the Contracting Members agree to reimburse NCPA, in a timely manner, for all deduclibles and/or self-insured retentions payable for any claim, liability or damage arising out of this Agreement. 4 BAMx PRO~SSIONAL SERVlCSS AGREEMENT 5.2 Indemnification of NCPA. Except as specified in Section 5.1.2 above, Contracting Members shall, at their sole cost and expense, indemnify and hold harmless NCPA and all associated, affiliated, allied, member and subsidiary entities of NCPA, now existing or hereinafter created, and their respective officers, boards, commissions, employees, agents, attorneys, and oontractors (hereinafter referred to as 'Indemnltees"), from and against any and all liability, obligation, damages, penalties, claims, liens, costs, charges, losses and expenses (including, without limitation, reasonable fees and expenses of attorneys, expert witnesses and conSUltants), which may be imposed upon, incurred by or be asserted against the Indemnitees arising .out of this Agreement. 5.3 Defense of Indemnitees. In the event any action or proceeding shall be brought agalnsl \!1e Indemnilees by reason of any matter for whic!) the Indemnltees are Indemnified hereunder, Contracting Members shall, upon reasonable prior written noUce from any of the Indemnitees, at Contracting Members' sole cost and expense, resist and defend the same with legal counsel mutually selected by Indemnitee and the Contracting Members, unless mutual· selection of counsel is expressly prohibited by an applicable insurance policy; provided however, thai neither Indemnitee nor,Contracting Members shall admit liability In any such matter or on behalf of the other without express written consent, which consent shall notbe unreasonably withheld or delayed, nor enter into any compromise or settlement of any claim for which lndemnitees are indemnified hereunder without prior express written oonsent The Contracting Members' duty to defend shall begin upon receipt of a written notice identifying with specificity the allegations that giver/se to this duty to defend. 5.4 Notice. The Parties shall give each other prompt notice of the making of any claim or the commencement of any acllon, suit or other proceeding covered by the provisions of this Section 6. 5.5 Insurance. During the term of the Agreement and prior to beginning any work under this Agreement. NCPA shall maintain, or cause to be maintained, In full force and effect, and at its sole cost and expense, the types and limits of Insurance as are annually approved by the governing Commission of NCPA. The types and limits of insurance that are applicable to this Agreement are evidenced by list of insurance coverages which Is attached hereto as exhibit C. NCPA warrants and represents that the types of insurance and coverage limits shown In Exhibit C are in full force and effect and shall remain so during the term of this Agreement unless NCPA gives prior written notification (of not less than 15 days) of modificallon~ cancellation or rescisSion of such coverage. 5.6 Contracting Members' Acknowledgment of Option to Secure AddlUonal Insurance. The Contracting Members acknowledge thatthere arelimltallons on NCPA's liability to the Contracting Members under this Section 5 and that the Contracting Members may need to purchase additional insurance of their own to cover the additional risks and the potential add~ional liabilities they are assuming under this Agreement. Contracting Members agree that they will, with respect to any additional Insurance they obtain or which is otherwise available to Contracting . Members,cause their insurers to Issue an endorsement providing a weiver of subrogation rights as to Indemnitees . . 5.7 Survival of Obligations. The defense and indemnity obligations of Section 5 shall 5 BAMx PROFESSIONAL SSJl.V!CSS AGRBEMENT survive the termination of this Agreement. " Section 6. COMPENSATION 6.1 Charges and Reserves tl..1.1. Monthly Chames. Charges for the Services provided hereunder shall be the sum of (a) and (b) below, and shall billed separately to each BAMx Participant in accordance with Exhibit B: (a) (b) Six-Hundred-Twenty-Five Dollars ($ 625) per month for services provided by NCPA to the BAMx Partfclpants under this Agreement; and Sixty-Two-Thousand-Five Hundred Dollars ($82,500) per month for services provided to the BAMx Participants directly by Flynn Resource Consultants Ino., under the CONSULTING SERVICES AGREEMENT BETWEEN THE NORTHERN CAUFORNIA POWER AGENCY AND Flynn Resource Consultants Inc., dated July 1, 2010. 6.1.2 Security Deposit. Contracting Members shall each maintain on deposit in its General Operating Reserve Acoount held at NCPA the sum of Zero Dollars ($0) as security to NCPA for liabilities NCPA could incur under this Agreement. Contrecting Members hereby authorize NCPA to reserve and commit this sum in its General Operating Reserve Acoount for the payment of the aforementioned Ilabilities-should·same become necessary. Interest on monies held by NCPA pursuant to this section shall be credited in accordance with the then.standard prectices . of NCPA relating to the General Operating Reserve Acoounl. Section 7. BILLING AND PAYMENT 7.1 Invoices. NCPA shall submitinvoicBs to Contracting Members, not more often than once a month during the term of this Agreement, for Services performed and reimbursable costs incurred prior to the invoice date. 7.2 Monthly Payment, Contracting Members shall make monthly payments, based on Invoices received, for Services performed, and for authorized reimbursable costs incurred. Contracting Members shall have thirty (30) days from the receipt of an invoice that complies with all of the requirements above to pay NCPA. Any amount due on a day other than a business day, i.e., any day except a Saturday, Sunday, or a Federei Reserve Bank holiday, may be paid on the following business day. If all or any portien of a bill is disputed by Contrectlng Members, the entire amount of the bill shall be paid when dUB, and NCPA'S Authorized Representative shall be concunrently provided written notice of the disputed amount and the basis for the dispute. NCPA shall reimburse any amount determined to have been Incorrectly billed, within ten (10) days after such determination. Amounts. which are not paid woen due shall bear interest computed on a daily basis until paid at the lesser of m the per annum prime rate (or reference rate) of the Bank of America NT & 6 BAM>< PROFllSSIONAL SSRVlCES AGREEMENT I I SA. or its successor, then in effect, plus two per cent (2%) or (IQ the maximum rate permitted by law, The proVisions of this Section 7 shall survive expiration of this Agreement until saHsfred. 7.3 Contracting Members shall pay for the Services purSuant to this Agreement Contracllng Members shall not pay any additional sum for any expense or cost whatsoever incurrad by NCPA in rendering Services pursuant to this Agreement. Contracting Members shall make no payment for any exira, fur1her, or additional service pursuant to this Agreement. In no event shall NCPA submit any Invoice for an amcunt in excess of the maximum amounl of compensation provided above either fOr a task or for the entire Agreement, unless the- . Agreemant is modified prior 10 the submission of such an invoice by a properly executed change order or amendment in accordance with this Agreement. . 7.4 . Hourly Fees. Fees for work performed by NCPA on an hourly basis shallnol exceed the amounts shown on the following fee schedule attached hereto as Exhibit B. 7,5 Reimbursable Expenses. Reimbursable expenses are $pecified in Exhibit B. Expenses not listed In Exhibit B are not chargeable 10 Contracting Member. Reimbursable expenses are included in the total amount of compensation provided under this Agreement that shall not be exceeded. . 7.6 Payment ofTaxes. NCPA is solely responsible for the payment of employment taxes Incurred under this Agreement and any similar federal or state taxes. 7.7 Payment upon Termination. In the event that Contracting Members or NCf'A terminates this Agreement pursuent to Section 4, Contracting Members shall compensate the NCPA for all outstanding costs and reimbursable expenses incurred for work satisfactorily completed as of the date ofwrilten Notice ofTermlnation. NCPA shall maintain adequate logs and timesheets in order to verify costs incurred to that date. 7.8 Authorization to Perfoffil Services. NCPA is not authorized to perform any ServiceS or incur any costs whatsoever under the terms of this Agreement until receipt of authorization from Contracting Member's Contract Authorized Representative folloWing receipt of the required approvals under the terms of this Agreement 7.9 The addresses of Contracting Members to which invoices shall be sent is: Jon Abendschein City of Palo Alto P.O. Box 10250 Palo Alto. CA 94303 Fax: 65~326-1507 Alameda Municipal Power Assistant General Manager BAM>< PROl'llSSIONAL SERVICllS AGREEMENT 7 ( Energy Resource Planning . 2000 Grand Slree' P.O, Box H Alameda, CA 94501·0263 Bob Kazlauskas City of Santa Clara Attn:Eleclric Department 1500 Warburton Ave Santa Clara, CA 95050 Bkazlauskas@svpower,com 40&-615-6688 Fax: 408-261-271.7 Section B. STATUS OF NCPA; FACILITIES AND EQUIPMENT 8.1 Independent Contractor, At all times during the term of this Agreement, NCpA shall be an independent contractor and shall not be an employee of Contracting Members. Contracting Members shall have the right to control NCPA only insofar as the results of NCPA'SServicas rendered pursuant to this Agreement and assignment of personnel pursuant to Section 3.4; however, otherwise Contracting Members.shall not have the right to control the means by which NCPA accomplishes services rendered pursuant 10 this Agreement Notwithstanding any other agency, state, local or federal policy, rule, regulation, law, or ordinance to the·conlrary, NCPA and any of Its employees, agents, and subcontractors providing Services under this Agreement shall not qualify for or become entitled to, and hereby agree 10 waive any and all claims to, any compensation, benefit, or any incident of employment by Contracting Members, including bul not limited to eligibility to enreilin the California Public Employees Retirement System (PERS) as an employee of eontracling Member and entitlement to any contribution to be paid by Contracting Members for employer contributions andlor employee contributions for PERS benefits, 8.2 Facilities and Equipment The 'facilities and equipment that may be necessary to perform the SerVices required by this Agreement shall be provided as follows: None. Section 9,UNCONTROLLABLE FORCES 9.1 Obligations of the Parties, other than those to pay money when due, shall be excused for so long as and to the extent that failure to perform such obligations is due to an Uncontrollable Force; provided, however, that if eitherParty is unable to perform due to an Uncontrollable Force, such Party shall exercise due dlllgenGll to remcve such inability with reasonable dispatch. Nothing contained in this Agreement shall be construed as requiring a Party to settle any strike, lockout, or labor dispute in which It may be involved, or to accept any permit, certificate, contract, or any other service agreement or authorization necessary for the performance of this Agreement which contains terms and conditions which a Party determines In its good faith judgment are unduly burdensome or otherwise unacceptable. 8 BAMx PROPB8SrONAL SERVICES AGREEMENT 9.2 Each Party shall notify the other promptly, by telephone to the other Party's operatlng personnel and Authorized Representative identified In Section 3.2, upon becoming aware of any Uncontrollable Force which rT)ay adversely affect the performance under this Agreement. A Party shall additionally provide written notice In accordance with Sectlon 12.8 to the other Party wllhin 24 hours after providing. Each Party shall notify the other promplly, when an Uncontrollable Force has been remedied or no longer exists. Section 10. t.:EGAl REQUIREMENTS 10.1 Governing Law. The laws of the Slate of Califomia shall govem this Agreement, . wHhout regard for the choice of law doctrine. 10.2 Compliance with Applicable laws.' NCPA and any subcontractors shall comply with all laws applicable to the performance of the Services hereunder. 10.3 Other Governmental Regulations. To the extent that this Agreement may be funded by fiscal assistance from another governmental entity, NCPA and any subcontractors shall comply with all applicable rules and regulatIOns to which Contracting Member is bound by the terms of such fiscal assistance program. . 10.4 Licenses and Permits. NCPA represents and warrants to Contrllcting Member that NCPA and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals of whatsoever nature that is legally required to practice their respective professions. NCPA represents and warrants tQ Contracting Member that NCPA and its employees, agents, any subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits,and approvals tha1.are legally required to practice their respective professions. 10.5 NondisCrjmination and Equal Opportunity. NCPA shall not diSCriminate, on the basis of a person's race, religion, color, national origin, age, physical or mental. handicap or disab16ty, medical condition, marital status, sex, or sexual orientation, against any employee, applicant lor employment, subcontractor, bidder for a subcontract, or participant In, recipient of, or . applicant for any services or programs provided by NCPA under this Agreement. NCPA shall comply with all applicable federal, state, and local laws, policies, I1)les, and requirements related to equal opportunity and nondiscrimination in employment, contracting, and the provision 01 any services that are the subject of this Agreement, including but not limited to the satisfaction of any· positive obligations required of NCPA thereby. . NCPA shall include the provisions of this Subsection in any subcontract approved by Contracting Members' Contract Administrator or this Agreement. Section 11. KEEPING AND STATUS OF RECQRDS. 11,1 Records Created as Part of NCPA's Performance. All reports, data, maps, models, 9 BAM>< PROFESSIONAL SIiRVICllS AGRBJjMENT charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that NCPA prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the Contracting Members. NCPA hereby agrees to deliver those documents to the Contracting Members upon termination of the Agreement. It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this Agreement are prepared specifically for the Contractillg Members and are not necessarily suitable for any future or other use, Contracting Members and NCPA agree that, unfit final approval by Contracting Members, all data, plans, specifications, reports and other documents are confidential and will not be released to third parties without prior written consent of both Parties, except as may otherwise be required by applicable law. ' 11.2 NCPA's Books and Records. NCPA shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services or expendHures and disbursements charged to the Contracting Members under this Agreement for a minimum of three (3) years, or for any longer period required by law, from the date of final payment to the NCPA to this Agreement. . 11.3 Inspection and Audit of Records. Any records or documents that Section 12.2 of this Agreement requires NCPA to maintain shall be made available for inspection, audit, and/or copying at any time during regular business hours. upon oral or written request of the Contracting Member. Under California Govemment Code Section 8546.7, If the amount of public funds expended under this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), the Agreement shall be subject to the examination and audit of the State Auditor, at the request of any Contracting Member or as part of any audH of any of the Contracting Members, for a period of three (3) years after final payment under the Agreement. 11.4 Confidential Information and Disclosure. During the term of this Agreement, any party ("Disclosing Partyj may disclose confidential, proprietary or trade secret information (the "Information"), to the another party ("Receiving Party'). All such Information made available in a tangible medIum of expression (such as, without limitation, on paper or by means of magnetic tapes, magnetic disks or other computer media) shall be marked in a prominent location to indicate that it is the confidential, proprietary and trade secret information of Disclosing Party at the time of disciosure to Receiving Party, Receiving Party shall hold Disclosing Party's Information in confidence and shall take all reasonable steps to prevent any unauthorized possession, use, copying, transfer or disclosure of such Information. Receiving Party shall not attempt to reverse engineer or inany manner create any product or information which is similar in appearance to or b~ed on the Information provided by Disclosing Party. Receiving Party shall not disclose Disclosing Party's Infoon(ltionto any person other than Receiving Party's employees, agents, contractors and subcontractors whe have a need to know in connection with this Agreement. Receiving party's confidentiality obligations hereunder shall nol apply to any portion of Disclosing Party's Infonnatlon which: (a) Has become amatler of public knowledge other than through an act or omission of Receiving Party; (b) Has been made known to, Receiving Party by a third party In 10 BAM. PROFESSIONAL SERVICES AORIlEMENT . i I .. ". accordance with such third party's legal lights without any restriction on disclosure; (c) Was in the possession of Receiving Party prforto the disclosure of such Information by Disclosing Party and was not acquired directly or Indirectly from the other party or any penson or entity in a relationship of trust and confidence with the other party with respect to such Information; (d) Receiving Party Is required by law to disclose; or (e) Has been independently developed by Receiving Party from Information not defined as "Information" in this Agreement. as evidenced by Receiving Party's written records. Receiving Party shall return or destroy Disclosing Party's Information (including all . copies thereoQ to Disclosing Party promptly upon the earliest of any termination of this Agreement or the Disclosing Party's written request. Notwithstanding the foregoing, Receiving Party mey retain one copy of such Information solely for archival purposes, subject to the confidentiality proviSions of this Agreement The parties understand that each party is a public entity and is subject to the laws that may compel either to disclose information about the other's business. Section 12. MISCELLANEOUS PROVISIONS 12.1 Atlomeys' Fees. If a Party to this Agreement brings any action, Including an action for declaratory relief, to enforce or interpret the provisions of this Agreement, the prevailing Party shall be entitled to reasonable attorneys' fees in addition to any other relief to which that Party may be entitled. The court may set such fees In the same action or in a separate action brought foOha! purpose. 12.2 Venue. In the event that either party brings any action against the other under this Agreement, the Parties agree that mal of such action shall be vested exclusively in the state courts of California in the County of Placer or in the United States District Court for the Eastern District of California . 12.3 Severability. If any provision of this Agreement shall be determined by a court of competent jurisdiction to be Invalid, void Of unenforceable, or If any provision of this Agreement Is rendered invalid or unenforceable by federal orstate statute' or regulation, but the remaining portions of the Agreement can be enforced without failure of mateilal consideration to any Party, then the remaining provisions shall continue in full force and effect. To that end, this Agreement is declared to be severable. Provided, however, that in the event any provision is declared to be invalid, void or unenforceable, any Party may terminate this Agreement upon 10 days written notice given within fIVe (5) days of receipt of nolice of final entry of judgment. 12.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement. 12.5 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of and shall apply to and bind the successors and assigns of the Parties. 12.6 Use of Recycled Products. NCPA shall endeavor to prepare and submit all reports, written studies and other printed material on recycled pap~r to the extent it !s aveilable at equal or 11 BAMx PROFBSSIONAL SERVICES AGREEMENT . less cost than virgin paper. 12.7 Conffkt of Interest. NCPA shall not employ any ContracHng Members' official Dr employee in the work performed pursuant to this Agreement. No olflCer or employee of Contracting Member shall have any financial interest In this Agreement that would violate California Government Code Sections 1000 et seq. 12.8 Notices. Unless this Agreement requires otherwise, any notice, demand or request provided for in this Agreement, or served, given or made shall become effecllve When delivered in person, or sent by registered or certified first class mail, to the persons specified below: Donna Stevener Assistant General Manager -Adminlstrallve Services Northern California Power Agency 651 Commerce Drive Roseville, CA 95676 . With a copy to: Michael F. Dean General Counsel, Northern California Power Agency cro MeyerS Nave 555 Capitol Mall, Suite 1200 Sacramento, CA 95814 Debra Lloyd Valerie Fang City of Palo Alto P.O. Box 10250 Palo Alto, CA 94303 With a copy to: City of Palo Alto Attn: City Attorneys office P.O. Box 10250 Palo Alto, CA 94303 Girish Balachandran, General Manager Brad Wetstone Alameda Municipal Power 2000 Grand Street P.O. Box H Alameda. CA 94501-0263 With a copy to: Farimah Faiz BAM>< PROFliSSIONAL SBRVlCBS AGREEMENT 12 Alameda Office of the City AttorrleY 2263 Santa Clara Avenue, Room 280 Alameda, CA 94501 City of Santa Clara Attn: Electric Department 1500 Warburton Ave Santa Clara, CA 95050 With a copy to: City of Santa Clara Attn: City Attorneys office 1500 Warburton Ave Santa Clara, CA 95050 Whenever it Is required, permitted, or desired In this Agreement that written no~ce or demand be given by any Party to any other Party, such notice or demand may be either personally served or sent by United States Mail, or facsimile. Notice shall be deemed to have been given when personally served, when deposited in the United States Mall, certified or registered with postage prepaid and properly addressed, or when transmitted by facsimile provided however. notices delivered by facsimile shall only be effectlve if delivered during regular business hours on a day. that is considered a regular business day for NCPA by the involved Parties, 12,9 Integration; Inoorporation. This Agreement. including all the exhibits attached hereto, represents the entire and integrated agreement between Contracting Members and NCPA relating to the subject matter of this Agreement. and supersedes all prior negotiations. representations, or agreements, either written or oral. All exhibits attached hereto are inoorporated by reference herein, 12.10 Dispute Resolution, If any dispute arises between the Parties that cannot be settled after engaging in good faith negotiations. Contracting Members and NCPA agree to resolve the dispute In acoordance with the following: 12.10,1 Each Party shall designate a senior management or executive level representative to negotiate any dispute; 12.10,2 The representatives shall attempt. through gqod faith negotiations. to resolve the dispute by any means within their authonty. 12.10,3 If the Issue remains unresolved after sixty (60) days of good faith negotiations, despite having used their best efforts to do so, eithe~ Party may pursue whatever other remedies may be available to it. 12.10.4 This informal resolution process Is not intended to nor shall be oonstrued to change the time periods for filing a claim or action specified by Govemment Code § 900. et seq. 13 BM/!< PROPESSIONAl. SBRVlCES AGRliEMI!NT 12.11 Other Agreements. This Agreement is not intended 10 modify or change any other agreement between any of the Parties, indiVidually or collectively. 12.12 Counterparts, This Agreement rpay be executed in muHlple counterparts, each of which shall be an original and all of which together shall constitute one agreement. . 12.13 Obligations of Contracting Members Jolfltand Several; No Joint Venture. The duties, obligations and liabilities of the Contracting Members, including the obligations 10 make payments to NCPA, are intended to be joint and several. Provided that nothing contained in this Agreement shall be construed to create an association, trust, partnership or joint venture or to impose a trust or partnership duly, obligation or liability on or with regard to the Contracting Members. 12.14 Effect of Section Headings. Section headings and subheadings appearing in this Agreement are inserted for convenience only and shall not be Construed as interpretation of text. 12.15 Authority of Signatories. The signatories hereby represent that they have been appropriately authorized to execute this Agreement on behalf of the Party for whom they sign. 12.16 Amendmenls. The Parties may amend this Agreement only by a writing signed by all the Parties following each Party's receipt of writlen resolution/authorIzation from their governing bodies, which resolutions/authorizations shall be condition precedents to any amendments of this Agreement and shall be attached as exhibits to this Agreement. The Parntls have executed this Agreement as of Ibe Effective Date. Northern California Power Agency JAMES H. POPE, General Manager Atlest: Assistant Secretary the Commission Approved as to Form: General Counsel 14 BAM. PROFESSIONAL SERVICES AOREIlMEN'l' CONTRACTING MEMBERS: CITY OF ALAMEDA By: ________ _ I!s: ---------- CITY OF PALO ALTO By: __ -,-______ _ Its: ----------------- CITY OF SANTA CLARA By: Its: ---'---------------- llAMx PRQFBSSIONAL SIlRVIClIS AGREEiMENT Approved as to Form: By:~,...-:-:.,--_____ _ . City Attorney Approved as to Form: By:----:c:---:-----,-----­ City Attorney \ Approved as to Form 8y:--,-_______ _ City Attorney 15 EXHIBIT A Scope of Services NCPA shall perform the following Services on behalf Contracting Members: A. NCPA will enter into a contract with Flynn Consulting ('Consultant") on behalf of Contracting Members, In general Consultant will provide services including monitoring. meeting participation, coordinating with affected or other participating parties, and, as necessary, preparing and submitting formal position submittals for the following activities: 1. Grid Planning Activities • CAISO/PG&E annual transmission expansion planning process • Support or oppose specific transmission additions ~ Greater Bay Area, SF Peninsula and Oakland long term studies • CAISO local capacity lachnical study process • Other regional and sub-regional transmission planning activities • CAISO Planning BPM Change Management Process • Transmission cost allocation • Reliabmty impacts from Once-Through Cooling (OTC) plant retirements • Transmission.for renewables • . CTPG planning process • Tracy to'Bay development activities 2, CPUC and CEC transmission matters' • Integrated Energy Policy Report • Strategic transmission investment plan • Resource adequacy Issues 3. California Market Design ActiVITies • CAISO markets, proceedings and implementation matters • Resource Adequacy I Local Capacity/ Dellverabllity . . • LMP congestion and losses incidence and impacts '4. Western Area Power Administration Activities • Western customer meetings and issues • SMUDJWestern balancing authority area footprint, performance and allocation of costs and effort • Western Transmission Development • Western Transmission Infrastructure Program 5. Communicate Regularly with BAMx Members • CHent meetings, telephone conferences and written summaries of activities on key issues, B, NCPA will accept invoices from ConSUltant and transmit them to Contracting Members for 16 BAMx PROFESSlONAL SERVICIlS AGREEMENT ! i , . , . their review, and if acceptable, the Contraeling Members will direct payment by NCPA. NCPA will prepare invoices indicating the share of Consultant's costs to be paid by each Contracting Member along with the appropriate charges by NCPA for its services; however, as provided in the Agreement, each Contracting Member is Jointly and severally liable for the entirety of any amounts billed under this Agreement NCPA will then pay· Consultant utilizing Contracting Members' funds. C. Contracting Members will be solely responsible for payment of the Consultant's invoices, as well as determining whether or not the professional services have been satisfactorily performed. The "Services" under this Agreement by NCPA to Contracting Members are limited to the contracting for services with Consultant and billing/payment function. c. 17 BAM>< PROFESSIONAL SI!RVICES AOREEMENT EXHIBITB COMPENSATION SCHEDULE AND HOURLY FEES Compensation for alilasks, including hourly fees and expenses, shall nol exceed $757,500, The hourly and monthly rates and or compensation break down and an estimated amount of expenses is as follows: ' . 8-1 Monthly Charges for Services provided by NCPA for billing and contract preparation ' under this Agreement shall be alloCated to each BAMx Participant In proportion to each BAMx Particlpanfs proportionate share of energy delivered In CY2009 as derived from the 2010-2011 NCPA Annual Budget Document, Page 1J..3 and as reffected Table 1 below. The total charge for these services shall be SiX-Hundred-Twenty-Five Dollars, per month. B-2 Monthly Charges invoiced by Flynn Recources Conultents Inc to NCPA for services provided to the BAMx Participants under the CONSULTING SERVICES AGREEMENT BETWEEN THe NORTHERN CALIFORNIA POWER AGENCY AND FLYNN RESOURCE CONSULTANTS INC., dated July 1, 2010 shall be alloceted to each BAMx Participant in proportion to each BAMx Participanfs proportionate share of energy delivered in CY2009 as derived from the 2010-2011 NCPA Annual Budget Document. Page 1J..3 and as reflected Table 1 below, Compensation to Flynn Resource Consultants Inc. for all tasks, Including hourly fees and expenses, shall not exceed Seven-Hundred and Fifty Thousand Dollars ($750,000). The hourly rates and or compensation break down ilnd an estimated amount of expenses is esfollows: . Flynn Resource ConSUltants Inc. hourly rates for services are listed below. Labor Categoty Principal Senior ConsuHant Consultant Associate Consultant Analyst Support Services HourlyRala $240-285 per hour $190-240 per hour $160-190 per hour $130-160 per hour $ 80-130 per hour $55 per hour Travel, food, and miscellaneous expenses, except automobile mileage, associated with Ihe provision of services hereunder shall be billed at cost. Automobile mileage will be billed at the rate approved by the InternaLRevenue Service TABLE 1 Proportionate Share of Energy Delivered Alameda Municipal Power Palo Alto llAMJ< PR01'ESSlONAL SERVICllS AOIUlEM6NT 18 MWH 402,641 1,013,782 % Share 9.251% 23.293% I I · Silicon Valley Power BAN'.x PROFESSIONAL SERVlCES AGRB!!MENT 19 67.456% 4,352,376 100.000% EXHIBITC Insurance MaintaIned by NCPA WORKERS' COMPENSATION INSURANCE EXCESS LIABIUTY INSURANCE AUTOMOBILE INSURANCE ERRORS & OMISSIONS INSURANCE 1424737.1 20 BAM. PROFBSStONAL SBRVICllS ACll!.EEMBNT $1,000,000 $35,000,000 $1,000,000 ~ $10,000,000 CONSULTING SERVICES AGREEMENT BETWEEN THE NORTHERN CALIFORNIA POWER AGENCY AND Flynn Resource Consultants Inc, ATIACHMENT C This agreementfor consulting services ('Agreemenf) is entered into on July 1, 2010 (the "Effective Date") between the NORTHERN CALIFORN IA POWER AGENCY. a public joint powers agency, with offices located at 651 Commerce Drive, Roseville, CA, 9567&-6420 ("Agency") and Flynn Resource . Consultants Inc., ("Consultanf) (together sometimes referred to as the "Parties"). Section 1. SERVICES. In accordance with the terms and conditions set forth in this Agreement, Consultanfagrees to perform all services described In the Scope of Work attached as Exhibit A. In the event of a conflict in or Inconsistency between the terms of this Agreement and Exhibit A, this Agreement shail prevail. ' 1.1 Term of ServIces. This Agreement shallbagin on the Effective Date and shall end when ConsuRant completes the work described in ExhibH A, or on June 30. 2011, which ever is shorter, unless the term of !lie Agreement Is otherwise terminated or modified, as provided for herein • . 1.2 Standard of Performance. Consultant shall diligently perform all services required In connection with this Agreement in the manner and according to the standards 'observed by a competent practitioner of the profession in which Consultant is engaged in the geographical area in which Consultant practices its profession. 1.3. Assignment of Personnel. Consultant shall assign only competent personnel to perform services in connection with this Agreement. 1.4 Termination. Agency may cancel this Agreement, alter consultation with BAMx representatives as defined by Exhibit A, at any time and without cause upon written notification to Consultant In the event of termination, Consultant shall be entiHed to compensation for services satisfactorily completed as of the date of written notice of termination; Agency, however, may condition payment of such compensation upon Consultant delivering to Agency documents and records Identified In Section 8.1 of this Agreement. . Section 2. COMPENSATION. Agency hereby agress to pay Consultant an amount NOT TO EXCEED Seven-Hundred and Fifty Thousand Dollars ($750,000) for all work set forth In Exhibit A, in accordance with the Consultant's fee schedule and reimbursable expenses which is attached as Exhibit B, and made a part of this Agreement. In the event of a conflict between this Agreement and Consullanfs proposal reg arding the amount of compensalion, this Agreement shall preVail. 2.1 Invoices. Consultant shall submit invoices once a month during the term of this Agreemant, based on the cost for services performed and reimbursable costs Incurred prior to the invoice date to: Northern CaHfornla Power Agency 651 Commerce Drive Roseville, Califomia 95678 Atln: Accounts Payable 2.2 Payment. Agency shall make monthly payments, based on invoices received, for services satisfactortly performed, and for authorized reimburSable costs incurred. 2.3 Hourly Fees I Reimbursable Expenses, If applicable, fees for work performed by Consultant on an hourly basis shall not exceed the amounts shown oil the fee schedule attached to this Agreement as Exhibit B.· Reimbursable expenses are specified In Exhibit f!. 2.4 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes. Section 3. INSURANCE REQUIREMENTS. Before beginning any work under this Agreement Consultant, at its own cost and expense, shall procure the types and amounts of Insurance listed below for . the period covered by the Agreement. 3.1 Workers' Compensation. If Consultant employs any person, Consultant shall maintain Statulofy Workers' Compensation Insurance and Employer's liability Insurance for any and all persons employed directly or Indirectly by Consultant with limits of no! less than ONE MILLION DOLLARS ($1,000,000.00) per acoid.ent. 3,2 Commercial General and Automobile Liability Insurance. 3.2.1 Commercial General Insurance. Consultant shall maintain commercial general liability Insurance for the term of this Agreement, including products liability, covering any loss or liability, including the cost of defense of any action for bodily injury, death, personal Injury and properly damage which may arise out of tlhe operations of the consultant. The policy sha!1 provide a minimum limit of $1,000,000 per occurrenceJ$2,Ooo,OOO aggregate. 3,2.2 . Automobile Liability. Consultant shall maintain automobile liability Insurance for the term of this Agreement covering any loss of liability, Including the cost of . defense of any action, arising Ifom the operation, maintenance or use of any vehicle whether or not owned by the Consultant, on or off Agency premises. The . policy shall provide a minimum limit of $1,000,000 per each accident. This insurance shall provide contractual liability covering all motor vehicles and mobile equipment to tlhe extent coverage may be excluded from general liability insurance. 3.2.3 General Uabl/ity/Umbrella Coverage, The coverage amounts set forth above may be met by a combination of underlying and umbrella policies so long as in combination the limits equal or exceed those stated. 3.3 Professional Llabilitv Insurance. If Consultant performs design work pursuant to this Agreement, Consultant shall maintain professionalliabUlty Insurance for licensed professionals performing design work in connection with this Agreement in an amount not less than One Million Dollars ($1,000,000.00) covering tlhe licensed professionals' errors and omissions. Any deductible or self-insured retention shall not exceed Two Hundred Filly-Thousand Dollars ($250,000.00) per claim. Consulting Services Agreement between NORTHERN CALIFORNIA POWER AGENCY and Flynn Resource Consultants Inc. Page20f 10 .. . , .! 3.4 All Policies Requirements. 3.4.1 Verification of Coverage. Prior to beginning any work under this Agreement, Consultant shall, at the sale option of the Agency, provide Agency with (1) Certification of Insurance that demonstrates compliance with all applicable insurance provisions contained herein; (2) policy endoll!ements to the general liability policy adding the Northem California Power Agency as an Additional Insured and declatlng such insurance prlmary In regard to work performed pUrsuant to this Agreement; or (3) upon request by the Agency, complete copies of all poliCies and/Qr complete copies of all endorsements that demonstrate compliance with this Section 3. 3.4.2 Notice of Redu~lon In or Cancellation of Coverage. A certified endorsement must be attached 10 all insurance obtained in acoordance with this Agreement stating that coverage shall not be canceled, except after thirty (30) days' prior written noUCe by certifted mall, return receipt requested, has been given to the Agency. Consunant shall also provide thirty (30) days' prior notice to the Agency by certified mail of any impending reduction in the limits or coverage of any insurance policies that forrn a part of this agreement. 3.5 Waiver of Subrogation. Consultant agrees to waive subrogation which any insurer of Consultant may acquire from Consultant by virtue of the payment of any loss. ConsunBnt agrees to obtain any endorsement that may be necessary to effect this waiver of subrogation. The Workers' Compensation policy shall be endorsed with a waiver of subrogation In favor of Agency for all work performed by Consultant, its employees, agents .and subcontractors. Section 4. INDEMNIFICATION AND CONSULTANT'S RESPONSIBILITIES. 4,1 Consultant shall to the fullesfextent allowed by law, with respect to all services'perforrned in connection with this Agreement, indemnify, defend and hold harrnless the Agency and its officials, commissioners, officers, employees, agents and volunteers from and against . any and all claims that arise out of, pertain to or relate to the negligence, recklessness or willful misconduct of the Consultant. . Consultant will bear alllos5es, costs, damages, expense and liability of every kind, nature and description that arise out of, pertain to, or . relate to such Claims, whether directly or indirectly ('LiabiU!ies"). Such obligations to defend, hold harrnless and indemnity the Agency shall not apply to the extent that such Liabilities are caused by the sole negligence, active negligence, or willful misconduct of the Agency .. Section 5. STATUS OF CONSULTANT, 5.1 Independent Contractor. At all times during the term of this Agreemen~ Consultant shall be an independent contraclor and shall not be an employee of Agency. Consultant shall have no authority, express or Implied. to aot on behalf of Agency in any capacity whatsoever as an agent. ConsulHng ServIces Agreement between NORTHERN CALIFORNIA POWER AGENCY and Flynn Resource Consullanls Inc. Page 3 of 10 Section 6. LEGAL REQUIREMENTS. 6.1 Governing Law. The laws of the State of Califomia shall govern this Agreement. 6.2 Compliance with Applicable Laws. Cons.Ultant and any subconlractors shall comply with alllaw$ applicable to the performance of the work in connection with this Agreement. •• ~< • 6.3 Licenses and Permits. Consultant represents and warrants to Agency that Consultant and its employees, agents,and any subcontractors have ali licenses, permits, qualifications, and apprQvals of whatsoeVer nature that are legally required to practice their respective professions. 6.4 Nondiscrimination and Equal Opportunity, In compliance with federal, state and local laws, Consultant shall not discriminate, on the basis of a person's raoe, religion, color, national origin, age, physical or mental handicap or disability, medical condition, marital status, sex, or sexual orientation, against any employee, applicant for employment, subcontractor, bidder for a subcontract or participant in, recipient of, or applicant for any services or programs provided by Consultant under this Agreement. Section 7. MODIFICATION. 7.1 Amendments. The Parties may amend this Agreement only by a writing signed by all the Parties, and after consultation with BAMx representatives as defined by Exhibit A 7.2 Assignment and Subcontracting. Consultant may not assign this Agreement or any interest therein without the prior written approvel of the Agency. ConSUltant shall not subcontract any portion of the performance contemplated aix! provided for herein, other than to the SUbcontractors noted in the proposal, without prior written approval of the Agency. 7.3 . Survival. All obligations arising prior to the terminaflon of this Agreement and all provisions of this Agreement allocating liability between Agency and ConSUltant shall survive the termination of this Agreement. 7.4 Options upon Breach by Consultant. If Consultant malerially breaches any of the lerms of this Agreement, Agency's remedies shall Include, but not be IimilOO to, the following: Section 8. 8.1 7.4.1 Immediately terminate the Agreement; 7.4.2 Retain the plans, specifications, drawings, reports, design documents, and any other wcrk product prepared by Consultant in accordance with this Agreement; KEEPING AND STATUS OF RECORDS. Records Created as Part of Consultant's Performance. All reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans. studies, specifications, records, files, or any other documents or materials, In electronic or any other form, that Consultlng Services Agreement between NORTHERN CALIFORNIA POWER AGENCY and Flynn Resouroe Consuitanjs Inc. Page 4 of 10 Consultant prepares or obtains In accordance with this Agreement and that relate to the matters covered under the terms of t~ls Agreement shall be lIIe prop,erty of the Agency, 8.2 Consultant's Books and Records. ConSUltant shall maintain any and all records or documents evidencing or relating to charges for services or expenditures and disbursements charged to lIIe Agency under this Agreement for a minimum of three (3) years, or for any longer period required by law, from the date of final payment to the Consultant to this Agreement. 8.3 Confldentrallnformation and Disclosure. During the term of this Agreement, efther party (the "Disclosing Party'') may disclose confidential, proplietary (lr trede secret information (the "Information"), to the other party (the "Receiving Party"). the Receiving Party shall hold the Disclosing Party's Information in cpnfidence and shall take all reasonable steps 10 prevent any unauthorized possession, use, copying, transfer or . disclosure of such Informqtion. Consultant understands that the Agency is a public agency and is subject to the laws that may compel it to disclose information about Consultant's business. Section 9 MISCELLANEOUSPROYISIONS. 9.1 Attorneys' Fees. If a party to this Agreement brings any action, including an acHon for declaratory relief, 10 enforce or interpret the provision of this Agreement the prevailing party shall be entitled to reasonable attomeys' fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose. 9.2 Venue. In the event that either party brings any action against the other under this Agreement, the Parties agree thai trial of such action shall be vested exclusively in the state courts of California in the County of Placer or in the United Stales Distrlct Court for the Eastem District of California. 9.3 Severabllitv; If a court of competenljurlsdlclion finds or rules that any provision of this Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so adjudged shall remain in full force and effect. 9.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement. . 9.5 Contract Administration. This Agreement shall be administered by Donna Stevener, Assistant General Manager· Administrative Services, who shall act as the Agency's representative. All correspondence shall be directed to or through the representative. 9.S Notices. Any written notice to Consultant shall be sent to: Flynn Resource Consultants Inc. ' , 5440 Edgeview Drive Discovery Bay, CA 94505·9278 Attn: Doug Boccignone Consulting S\lrvlces Agreement between NORTHERN CALIFORNIA POWER AGENCY and Flynn Resource Consu1tants Inc. Page 5 of 10 My written notice to Agency shall be sent to: James H. Pope General Manager Northern California Power Agency 651 Commerce Drive Roseville, CA 95678 With a copy to: Michael F. Dean General Counsel Northern California Power Agency Meyers Nave 555 Capitol Mall, Suite 1200 Sacramento, CA 95614 9.7 Professional Seal. Where applicable in the determination of the Agency, the first page of a technical report, first page of design specifications, and each page of construction . drawings shall be stampedfsealed and signed by the licensed professional responsible for the report/design preparation. 9.8 Integration; Incorporation. This Agreement, including all the Exhibits attached hereto,· represents the entire and integrated agreement between Agency and Consultant and supersedes all prior negotiations, representations, or agreements, either written or oral. All Exhibits attached hereto are incorporated by reference herein. 9.9 Alternative Dispute Resolution. If any dispute arises between the Parties that cannot be settled after engaging in good faith negotiations, Agency and Consultant agree to resolve the dispute In accordance with the following: Each party will designate a senior management or executive level representative to negotiate the dispute. Through good faith negotiations, the representatives will attempt to resolve the dispute by any means within their authority, ~ dispute remains unresolved after fifteen (15) days of good faith negotiations, the Parties shall attempt to resolve the disagreement by mediation through a disinterested third person as mediator selected by both Parties, Mediation will begin within thirty (30) days of the selection of this disinterested third party, and will end fifteen (15) days after commencement. The Parties shall equally bear the costs of any third party In any alternative dispute resolution process. The alternative dispute resolution process Is a material condition to this Agreement and must be exhausted as an administrative remedy priorto either Party inft/ating legal action. This altematlve dispute resolution process is not Intended to nor shall be construed to change the time periods for filing a claim or action speoified by Government Code § 900, et. seq. ConsulUng Services Agreement between NORTHERN CAUFORNIA POWER AGENCY and Flynn RellQurce Consultants Inc. Page 6011Q 9.10 Counterparts: This Agreement may pe executed in multiple counterpartS, each of which shall be an original and all of which together shall constitute one agreement. . The Parties have executed this Agreement as of the date signed by the Agency. NORTHERN CALIFORNIA POWER AGENCY Date: _______ _ JAMES H. POPE, General Manager Attest: Assistant Secretary of the Commission Approved as to Fonm: General Counsel Consulting Services Agreement 1le1ween . Date: CONSULTANT DOUG BOCCIGNONE, Chief Financial OffIcer NORTHERN CALIFORNIA POWER AGENCY and Flynn Resource Consultants Inc. Page7ofl0 EXHIBIT A SCOPE OF SERVICES EXHIBIT A BAY AREA MUNICIPAL UTILITIES (BAMx) SCOPE OF SERVICES FOR FY2011 . NCPA is entering into this agreement with Flynn Resource Consultants, Inc. (Flynn RCI) at the requeslof the cities of Alameda, Palo Alto and Santa Clare (the BAMx members), so that NCPA may assist the BAMx members in securing ·professional consulting services related to electric transmission, power generation, regulatory issues, and electric market design issues affecting the BAMx members, NCPA's provision of related billing services is further addressed in the Professional Services Agreement Belween Northern California Power Agency and the Cities of Alameda, Palo Alto end Santa Clara (the "Bay Area Municipal Transmission Services Agreement' or "BAMx Agreement), ·Each 8AMx member shall be represented by a BAMx Representative, listed below, The 8AMx Representatives shall designate a member to be their primary representative for purposes of approving InvoiCes. The Designated 8AMx Representative will also coordinate, as necessary, work related communications, task orders and Invoice matters between and among the 8AMx participants and ConSUltant. 8AMx Representatives: Brad Wetstone, Alameda Municipal Power Debbie Lloyd, City of Palo Alto Utilities Ken Sims, Silicon Valley Power The 8AMx Representatives and Flynn RCI inland to pursue the activities listed below during Fiscal Year 2011, Such activities will Include monitoring, meeting participation, coordinating with affected or other participating parties, and, as necessary, preparing and submitting formal position submittals. 1. Grid Planning Activities • CAISOIPG&E annual transmission expansion planning process • Support or oppose specific transmission additions • Greater Bay Area, SF Peninsula and Oakland long term stUdies • CAISO local capacity technical study process • Other regional and sub-regional transmission planning activities • CAISO Planning BPM Change Management Process • Trensmission cost allocation • Reliability Impacts from Once-Through Cooling (OTC) plant retirements • Transmission for renewables • CTPG planning process • Tracy to 8ay development activities Consuiting Services Agreement between NORTHERN CALIFORNIA POWER AGENCY and.flynn Resource CO!Isultants Inc, Page B of 10 2, CPUC and CEC transmission matters • Integrated Energy Policy Report • Strategic transmission investment plan • Resource edequacy issues ' 3, California Market Design Activities • CAIBO markets proceedings and implementation matters • Resource Adequacy! Local Capacity! Deliverabmty • LMP congestion and losses incidence and impacts 4. Western Area Power Administr~'iion ActivHies • Western customer meeUngs and issues • SMUDlWestem balancing authority area footprint. performance and allocation of costs and effort • Western Transmission Development· • Western Transmission Infrastruoture Program ,5, Communicate Regularly with BAMx Members • Client meetings, telephone oonferences and Written summaries of activlties on key issues. Conaulftlll1 Services Agreement between NORTHERN CALIFORNIA POWER AGENCY and Flynn ReBouroe Consultants Inc. Page 90f10 EXHIBITS COMPENSA liON SCHEDULE AND HOURLY FEES Compensation for all tasks, including hourly fees and eXpenses, shall not exceed Seven-Hundred and Fifty Thousand Dollars ($750,000). The hourly rates and or compensation break down and an estimated amount of expenses is as follows: Flynn RCI hourly rates for the professional selVices are listed below. Labor Categorv Principal Senior Consultant Consultant Associate Consultant Analyst Support SelVices Hoyrlv Rate $240-285 per hour $190-240 per hour $16Q-190 per hour $130-160 per hour $ 80-130 per hour $ 55 per hour Prior to implementing an Increese within the Hourly Rate range for any Labor Category, Flynn RCI shall provide written notice to the BAMx Representatives of such change. Travel, food, and miscellaneous expenses, except automobile mileage, associated with the provision of selVices hereunder shall be. billed at cost. Automobile mileage will be billed at the rate approved by the Internal Revenue Service. ,For any month in which specialized modeling software is used to perform services under this agreement, the following charges shall apply: Power flow modeling -$225lmonth Short circuit modeling -$700/monlh OAS IS Data" $9OO/month Market modeling -$3,500/month . 'Specialized softWare costs that exceed the above amounts may be billed with the prior approval of the Designated BAMx Representative . . NOTE: As a public agency, NCPA shall not reimburse Consultant for cosls in excess of those permitted by the Internal Revenue Service, Consulting Services Agreement between r' ,NORTHERN CAliFORNIA POWER AGENCY and Flynn Resource Consultants Inc. Page 100f 10