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HomeMy WebLinkAbout2004-08-09 City CouncilCity of Palo Alto C ty Manager’s Report TO: FROM: DATE: SUBJECT: HONORABLE CITY COUNCIL 9 CITY MANAGER DEPARTMENT: UTILITIES AUGUST 9, 2004 CMR:342:04 APPROVAL A OF CONSULTING CONTRACT WITH NAVIGANT CONSULTING FOR GAS REGULATORY AND TECHNICAL CONSULTING FOR A TOTAL AMOUNT OF $436,000 FOR THE FISCAL YEARS FY2004-05, FY2005-06 AND FY2006-07 APPROVAL OF A CONSULTING CONTRACT WITH NAVIGANT CONSULTING FOR ELECTRIC REGULATORY AND TECHNICAL CONSULTING FOR A TOTAL AMOUNT OF $150,000 FOR THE FISCAL YEARS FY2004-05, FY2005-06 AND FY2006-07 APPROVAL OF A CONSULTING CONTRACT WITH FLYNN RESOURCE CONSULTING INC. FOR ELECTRIC REGULATORY AND TECHNICAL CONSULTING FOR A TOTAL AMOUNT OF $228,000 FOR THE FISCAL YEARS FY2004-05, FY2005-06 AND FY2006-07 RECOMMENDATION Staff recommends that Council: Approve and authorize the Mayor to execute the attached three contracts; two of the contracts are with Navigant Consulting for Electric Technical and Regulatory Consulting Services and Gas Regulatory Consulting Services and the third contract is for Electric Technical and Regulatory Consulting Services with Flynn Resource Consultants Inc. CMR:342:04 Page 1 of 6 The annual contract amounts by fiscal year and by fund for the consulting services are as follows: Consultant/Fund FY 04/05 FY 05/06 FY 07/08 a) Navigant Consulting/Gas $138,000 $145,000 $153,000 b) Navigant Consulting/Electric $ 50,000 $ 50,000 $ 50,000 c) Flynn RCI/Electric $ 72,000 $ 76,000 $ 80,000 Total $260,000 $271,000 $283,000 2.Authorize the City Manager to extend the contracts annually for up to two additional years, subject to Council approval of sufficient funds. BACKGROUND For more than a decade the City has retained consultants to assist staff in the electric and gas regulatory, legislative, and technical consulting areas. In fiscal year 2003-04, the City will directly spend approximately $90,000 on gas regulatory consulting and $95,000 on electric regulatory consulting. This is in addition to the approximately $150,000 spent on consulting in these areas through joint action agencies. The gas consultants provided assistance to the City in regulatory proceedings at the California Public Utility Commission (CPUC). Assistance was provided in areas that included preparing for Pacific Gas and Electric’s (PG&E) Gas Accord II and Gas Accord III proceedings, the E1 Paso settlement refund proceeding, the CPUC’s capacity rulemaking, analyzing PG&E’s existing pipeline infrastructure, and monitoring and influencing miscellaneous regulatory changes at the CPUC. The electric regulatory consultants provided assistance to the City in the area of regulatory and Bay Area transmission planning proceedings at the CPUC, California Independent System Operator (ISO), California Energy Commission (CEC), Federal Energy Regulatory Commission (FERC), and PG&E. Specific issues for which the consultant provided assistance included PG&E’s 2003 and 2004 transmission grid expansion plans, ISO’s reliability must-run (RMR) studies, Phase II San Francisco Peninsula Study, CPUC’s rulemaking order for transmission assessment, ISO’s 2003 controlled grid study, CEC’s supply assessment model and evaluation of transmission interconnection options for the City. CMR:342:04 Page 2 of 6 DISCUSSION Gas During the next three years, issues such as PG&E’s post 2005 Gas Accord market structure, PG&E’s rate case, and future gas supply and infrastructure needs for California will be heard at the CPUC, CEC and FERC and will continue to be a matter of concern to the City. It is important that the City’s interest be advocated in these regulatory proceedings. To this end, the City will present its own witnesses, cross-examine other utilities’ witnesses, submit briefs, file petitions and take actions as necessary to advance its interests. Reliance upon consultants with expertise in CPUC, CEC and FERC matters is necessary, due to the complexity and extent of technical and procedural issues involved in these proceedings. Electricity The California electricity market design remains in flux. During the next three years, electric regulatory proceedings, which might affect the City of Palo Alto and its consumers, will continue in several major areas at both the state and federal level. Issues include comprehensive market redesign and market power mitigation; locational marginal pricing and congestion management; long-term grid planning; transmission access charge settlement and implementation; new facilities interconnection policy; cost determination and allocation of Reliability Must Run units; PG&E’s transmission grid expansion plans; ISO’s controlled grid study, CEC’s supply assessment model and regional transmission organization filings by the CAL ISO and others. The City also needs to develop long-term, solutions to its transmission needs, given expiring long-term supply contracts, the introduction of a complex regional market design and the lack of sufficient investment in electric reliability infrastructure in the Bay Area. In order to improve reliability and electricity supply in the Bay Area the City will advocate the need for additional transmission at ISO stakeholder meetings at the State and federal levels. The City will also work closely with other municipal utilities and electric consumer groups in the Bay Area in planning and advocating for additional new transmission and generation projects. Consultant assistance is needed to supplement staff resources in conducting technical studies to support transmission planning, and providing electric regulatory services in the proceedings mentioned above. Consultants’ experience in working with agencies such as CMR:342:04 Page 3 of 6 the ISO, FERC, CPUC, CEC, and local municipal utilities is especially useful for the City. Selection Process Summary of Solicitation Process Proposal Description/Number Proposed Length of Project Number of RFPs Mailed Total Days to Respond to Proposal Pre-proposal Meeting Date Number of Company Attendees at Pre-proposal Meeting Number of Proposals Received: Company Name 1. TriAxis Engineering, Inc 2. Barrington-Wellesley Group, Inc 3. Henwood Energy Service 4. Navigant Consulting, Inc. 5. Ellision Schneider & Harris, LLP 6. Davis Wright & Tremaine, LLP 7. Grueneich Resource Advocates 8. Flyrm RCI Range of Consultant Hourly Rates in Submitted Proposals Technical Consulting in Electric and Legislative and Regulatory Services/206775 3 Years 18 20 days NA NA 8 proposals and 2 no bids Location (City, State) Corvallis, OR Walnut Creek, CA Sacramento, CA Rancho Cordova Sacramento, CA San Francisco, CA San Francisco, CA Discovery Bay, Ca $175 - $445/hr Selected interview? Yes No No Yes No Yes No Yes Gas for oral On June 2, 2004, a Request for Proposal (RFP) was sent to eighteen consulting firms, which were known to offer relevant services. Firms were given twenty days to respond. The RFP allowed consultants to respond to any or all of the major sections of the scope of work: These sections were, Electric Technical Consulting, Legislative and Regulatory Services, and Gas Technical Consulting, and Legislative and Regulatory Services. The RFP also stated that more than one consultant firm could be retained to perform tasks outlined in the scope of work. A total of eight firms submitted proposals responding to all or parts of the scope of work. A selection advisory committee consisting of the Assistant Director Utilities, two members of the Utilities Resource Management Division, one member of Utilities Electric Engineering Division and one member of the Purchasing Department reviewed the proposals. Four firms were invited to participate in oral interviews that were held between July 14, 2004 and July 19, 2004. The committee reviewed each firm’s CMR:342:04 Page 4 of 6 qualifications and submittal in response to the RFP relative to the criteria outlined in the RFP. Navigant Consulting, and Flynn RCI were selected because they ranked the highest, based on the following evaluation factors: experience related to the services offered, ability to perform in a timely manner, relevant education and certification, references, rates and other related information. Navigant Consulting was selected as the sole consultant for the gas regulatory and technical consulting. Both Navigant Consulting and Flynn RCI were selected for the electric regulatory and technical consulting. Flynn RCI was selected primarily for electric regulatory and strategic consulting. Navigant Consulting was selected primarily for electric technical and engineering analyses. RESOURCE IMPACT The total budget impact by fund and by fiscal year is show below: Navigant Consulting Gas Fund TOTAL FY 04/05 FY 05/06 FY 07/08 3-yeartotal $138,000 $145,000 $153,000 $138,000 $145~000 $153,000 $436,000 Flynn RCI/Electric Navigant Consulting Electric Fund TOTAL 72,000 $ 76,000 $ 80,000 $228,000 50,000 $ 50,000 $ 50,000 $150,000 122~000 $126~000 $130,000 $378,000 Funds for FY04/05 are included in the electric and gas fund budgets. Funds subsequent years will be subject to appropriation of funds in subsequent budgets. for POLICY IMPLICATIONS This recommendation is consistent with the Council approved Utilities Strategic Plan to obtain reliable electric and natural gas supplies and to preserve a supply cost advantage compared to the market. CMR:342:04 Page 5 of 6 ENVIRONMENTAL REVIEW These services do not constitute Environmental Quality Act a project for the purposes of the California ATTACHMENTS A,Navigant Consulting, Inc. - Gas B.Navigant Consulting~ Inc. - Electric C.Flynn RCI PREPARED BY: DEPARTMENT HEAD: Raveen Maan, Resource Planner Debbie Lloyd, Resource Planner ’ ~JOl(II~ U’LRI~CH I~req~or of Utilities CITY MANAGER APPROVAL: HARRISON Assistant City Manager CMR:342:04 Page 6 of 6 CONTRACT NO. BETWEEN THE CITY OF PALO ALTO AND NAVIGANT CONSULTING, INC. FOR GAS CONSULTING SERVICES Attachment A 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 NAVIGANT CONSULTING, INC., a corporation organized under the laws of the State of Delaware, with head office located at Chicago and offices located at 3100 Zinfandel Drive, Suite 600, Rancho Cordova,CA 95670-6026 ("CONSULTANT"). RECITALS: WHEREAS, CITY desires certain professional consulting services ("Services") and the preparation and delivery of, without limitation, one or more sets of documents, drawings, maps, plans, designs, data, calculations, surveys, specifications, schedules or other writings (~Deliverables") (Services and Deliverables are, collectively, the ~Project"), as more fully described in Exhibit "A"; and WHEREAS, CITY desires to engage CONSULTANT, including its employees, if any, in providing the Services by reason of its qualifications and experience in performing the Services, and CONSULTANT has offered to complete the Project on the terms and in the manner set forth herein; NOW, THEREFORE, in consideration of the covenants, terms, conditions, and provisions of this Contract, the parties agree: SECTION i. TERM i.i This Contract will commence on the date of its execution by CITY, and will terminate upon the completion of the Project, unless this Contract is earlier terminated by CITY. Upon the receipt of CITY’s notice to proceed, CONSULTANT will commence work on the initial and subsequent Project tasks in accordance with the time schedule set forth in Exhibit "A". Time is of the essence of this Contract. In the event that the Project is not completed within the time required through any fault of CONSULTANT, CITY’s city manager will have the option of extending the time schedule for any period of time. This provision will not preclude the recovery of damages for delay caused by CONSULTANT. 040802 cl 0072425 1 SECTION 2.SCOPE OF PROJECT; CHANGES & CORRECTIONS 2.1 The scope of Services and Deliverables constituting the Project will be performed, delivered or executed by CONSULTANT under the phases of the Basic Services as described below. 2.2 CITY may order substantial changes in the scope or character of the Basic Services, the Deliverables, or the Project, either decreasing or increasing the amount of work required of CONSULTANT. In the event that such changes are ordered} subject to the approval of CITY’s City Council, as may be required, CONSULTANT will be entitled to full compensation for all work performed prior to CONSULTANT’s receipt of the notice of change and further will be entitled to an extension of the time schedule. Any increase in compensation for substantial changes will be determined in accordance with the provisions of this Contract. CITY will not be liable for the cost or payment of any change in work, unless the amount of additional compensation attributable to the change in work is agreed to, in writing, by CITY before CONSULTANT commences the performance of any such change in work. 2.3 Where the Project entails the drafting and submission of Deliverables, for example, construction plans, drawings, and specifications, any and all errors, omissions, or ambiguities in the Deliverables, which are discovered by CITY before invitations to bid on a construction project (for which the Deliverables are required) are distributed by CITY, will be corrected by CONSULTANT at no cost to CITY, provided CITY gives notice to CONSULTANT. 2.4 Any.and all errors, omissions, or ambiguities in the Deliverables, which are discovered by CITY after the construction contract is awarded by CITY, will be performed by CONSULTANT, as follows: (a) at no cost to CITY insofar as those Services, including the Basic Services or the Additional Services, as described below, or both, will result in minor or nonbeneficial changes in the construction work required of the construction contractor; or (b) at CITY’s cost insofar as those Services, including the Basic Services or the Additional Services, or both, will add a direct and substantial benefit to the construction work required of the construction contractor. The project manager in the reasonable exercise of his or her discretion will determine whether the Basic Services or the Additional Services, or both, will contribute minor or substantial benefit to the construction work. 040802 cl 0072425 2 SECTION 3. CONSULTANT QUALIFICATIONS, STATUS, AND DUTIES OF 3.1 CONSULTANT represents and warrants that it has the expertise and professional qualifications to furnish or cause to be furnished the Services and Deliverables. CONSULTANT further represents and warrants that the project director and every individual, including any consultant (or contractors), charged With the performance of the Services are duly licensed or certified by the State of California, to the extent such licensing or certification is required by law to perform the Services, and that the Project will be executed by them or under their supervision. CONSULTANT will furnish to CITY for approval, prior to execution of this Contract, a list of all individuals and the names of their employers or principals to be employed as <onsultants. 3.2 In reliance on the representations and warranties set forth in this Contract, CITY hires CONSULTANT to execute, and CONSULTANT covenants and agrees that it will execute or cause to be executed, the Project. 3.3 CONSULTANT will assign Maury Kruth as the project director to have supervisory responsibility for the performance, progress, and execution of the Project.Ron Oechsler will be assigned as the project coordinator who will represent CONSULTANT during the day-to-day work on the Project. If circumstances or conditions subsequent to the execution of this Contract cause the substitution of the project director or project coordinator for any reason, the appointment of a substitute project director or substitute project coordinator will be subject to the prior written approval of the project manager. 3.4 CONSULTANT represents and warrants that it will: 3.4.1 Procure all permits and licenses, pay all charges and fees, and give all notices which may be necessary and incident to the due and lawful prosecution of the Project; 3.4.2 Keep itself fully informed of all existing and future Federal, State of California, and local laws, ordinances, regulations, orders, and decrees which may affect those engaged or employed under this Contract and any materials used in CONSULTANT’s performance of the Services; 3.4.3 At all times observe and comply with, and cause its employees .and consultants, if any, who are assigned to the performance of this Contract to observe and comply with, the 040802 cl 0072425 3 laws,ordinances, above;and regulations,orders and decrees mentioned 3.4.4 Will report immediately to the project manager, in writing, any discrepancy or inconsistency it discovers in the laws, ordinances, regulations, orders, and decrees mentioned above in relation to the Deliverables. 3.5 Any Deliverables given to, or prepared or assembled by, CONSULTANT or its consultants, if any, under this Contract will become the property of CITY and will not be made available to any individual or organization by CONSULTANT or its consultants, if any, without the prior written approval of the city manager. 3.6 CONSULTANT will provide CITY with five (5) copies of any documents which are a part of the Deliverables upon their completion and acceptance by CITY. 3.7 If CITY requests additional copies of any documents which are a part of the Deliverables, CONSULTANT will provide such additional copies and CITY will compensate CONSULTANT for its duplicating costs. 3.8 CONSULTANT will be responsible for employing or engaging all persons necessary to execute the Project. All consultants of CONSULTANT will be deemed to be directly controlled and supervised by CONSULTANT, which will be responsible for their performance.If any employee or consultant of CONSULTANT fails or refuses to carry out the provisions of this Contract or appears to be incompetent or to act in a disorderly or improper manner, the employee or consultant will . be discharged immediately from further performance under this Contract on demand of the project manager. 3.9 In the execution of the Project, CONSULTANT and its consultants, if any, will at all times be considered independent contractors and not agents or employees of CITY. 3.10 CONSULTANT will perform or obtain or cause to be performed or obtained any and all of the following Additional Services, not included under the Basic Services, if so authorized, in writing, by CITY: 3.10.1 Providing services as an expert witness in connection with any public hearing or meeting, arbitration proceeding,or proceeding of a court of record; 040802 cl 0072425 4 3.10.2 Incurring travel and subsistence expenses for CONSULTANT and its staff beyond those normally required under the Basic Services; and 3.10.3 Performing any other Additional Servicesthat may be agreed upon by the parties subsequent to the execution of this Contract. 3.11 CONSULTANT will be responsible for employing all consultants deemed necessary to assist CONSULTANT in the performance of the Services. The appointment of consultants must be approved,in advance, by CITY, in writing, and must remain acceptable to CITY during the term of this Contract. SECTION 4. DUTIES OF CITY 4.1 CITY will furnish or cause to be furnished the services listed in Exhibit ~A" and such information regarding its requirements applicable to the Project as may be reasonably requested by CONSULTANT. 4.2 CITY will review and approve, as necessary, in a timely manner the Deliverables and each phase of work performed by CONSULTANT. CITY’s estimated time of review and approval will be furnished to CONSULTANT at the time of submission of each phase of work. CONSULTANT acknowledges and understands that the interrelated exchange of information among CITY’s various departments makes it extremely difficult for CITY to firmly establish the time of each review and approval task. CITY’s failure to review and approve within the estimated time schedule will not constitute a default under this Contract. 4.3 The city manager will represent CITY for all purposes under this Contract. Girish Balachandran, Assistant Director, Resource Management is designated as the project manager for the city manager. The project manager will supervise the performance, progress, and execution of the Project, and will be assisted by Raveen Maan and Karla Dailey, the Resource Planners. 4.4 If CITY observes or otherwise becomes aware of any default in the performance of CONSULTANT, CITY will use reasonable efforts to give written notice thereof to CONSULTANT in a timely manner. SECTION 5.COMPENSATION 5.1 CITY will compensate CONSULTANT for the following services and work: 040802 cl 0072425 5 5.1.1 In consideration of the full performance of the Basic Services, including any authorized reimbursable expenses; CITY will pay CONSULTANT a fee not to exceed One Hundred Thirty Eight Thousand Dollars ($138,000) for fiscal year 2004-2005. CITY will exercise the option to renew the contract in the amount of One Hundred Forty Five Thousand Dollars ($145,000) for a second fiscal year (2005-2006) and One Hundred Fifty Three Thousand Dollars ($153,000) for a third fiscal year (2006-2007) provided the CONSULTANT is responsive to the CITY’s needs, and the quality of the CONSULTANT’s work is acceptable during the first year of the contract. The total amount of the contract over three years shall not exceed Four Hundred Thirty Six Thousand Dollars ($436,000). The amount of compensation will be calculated in accordance with the hourly rate schedule set forth in Exhibit "B", on a time and materials basis, up to the maximum amount set forth in this Section. The fees of the consultants, who have direct contractual relationships with CONSULTANT, will be approved, in advance, by CITY. CITY reserves the right to refuse payment of such fees, if such prior approval is not obtained by CONSULTANT. 5.1.2 The full payment of charges for extra work or changes, or both, in the execution of the Project will be made, provided such request for payment is initiated by CONSULTANT and authorized, in writing, by the project manager. Payment will be made within thirty (30) days of submission by CONSULTANT of a statement, in triplicate, of itemized costs covering such work or changes, or both. Prior to commencing such extra work or changes, or both, the parties will agree upon an estimated maximum cost for such extra work or changes. CONSULTANT will not be paid for extra work or changes, including, withouti limitation, any design work or change order preparation, which is made necessary on account of CONSULTANT’s errors, omissions, or oversights. 5.1.3 Direct personnel expense of employees assigned to the execution of the Project by CONSULTANT will include only the work of architects, engineers, designers, job captains, surveyors, draftspersons, specification writers and typists, in consultation, research and design, work in producing drawings, specifications and other documents pertaining to the Project, and in services rendered during Construction at the site, to the extent such services are expressly contemplated under this Contract. Included in the cost of direct personnel expense of these employees are salaries and mandatory and customary benefits such as statutory employee benefits, insurance, sick leave, holidays and vacations, pensions and similar benefits. 040802 cl 0072425 5.2 The schedule of payments will be made as follows: 5.2.1 Payment of the Basic Services will be made in "monthly progress payments in proportion to the quantum of services performed, or in accordance with any other schedule of payment mutually agreed upon by the parties, as set forth in Exhibit "B", or within thirty (30) days of submission, in triplicate, of such requests if a schedule of payment is not specified. Final payment will be made by CITY after CONSULTANT has submitted all Deliverables, including, without limitation, reports which have been approved by the project manager. 5.2.2 Payment of the Additional Services will be made in monthly progress payments for services rendered, within thirty (30) days of submission, in triplicate, of such requests. 5.2.3 No deductions will be made from CONSULTANT’s compensation on account of penalties, liquidated damages, or other sums withheld by CITY from payments to general contractors. SECTION 6.ACCOUNTING, AUDITS, OWNERSHIP OF RECORDS 6.1 Records of the direct personnel expenses and expenses incurred in connection with the performance of Basic Services and Additional Services pertaining to the Project will be prepared, maintained, and retained by CONSULTANT in accordance with generally accepted accounting principles and will be made available to CITY for auditing purposes at mutually convenient times during the term of this Contract and for three (3) years following the expiration or earlier termination of this Contract. 6.2 The~ originals of the Deliverables prepared by or under the direction of CONSULTANT in the performance of this Contract will become the property of CITY irrespective of whether the Project is completed upon CITY’s payment of the amounts required to be paid to CONSULTANT. These originals will be delivered to CITY without additional compensation. CITY will have the right’ to utilize any final and incomplete drawings, estimates, specifications, and any other documents prepared hereunder by CONSULTANT, but CONSULTANT disclaims any responsibility or liability for any alterations or modifications of such documents. SECTION 7. INDEMNITY 7.1 CONSULTANT agrees to prot6ct, indemnify, defend and hold harmless CITY, its Council members, officers, employees and agents, from any and all demands, claims, or liability of 040802 cl 0072425 7 any nature, including death or injury to any person, property damage or any other loss, caused by or arising out of CONSULTANT’s, its officers’, agents’, consultants’ or employees’ negligent acts, errors, or omissions, or willful misconduct, or conduct for which applicable law may impose strict liability on CONSULTANT in the performance of or failure to perform its obligations under this Contract. SECTION 8. WAIVERS 8.1 The waiver by either party of any breach or violation of any covenant, term, condition or provision of this Contract or of the provisions of any ordinance or law will not be deemed to be a waiver of any such covenant, term, condition, provision, ordinance, or law or of any subsequent breach or violation of the same or of any other covenant, term, condition, provision, ordinance or law. The subsequent acceptance by either party of any fee or other money which may become due hereunder will not be deemed to be a waiver of any preceding breach or violation by the other party of any covenant, term, condition or provision of this Contract or of any applicable law or ordinance. 8.2 No payment, partial payment, acceptance, or partial acceptance by CITY will operate as a waiver on the part of CITY of any of its rights under this Contract. SECTION 9. INSURANCE 9.1 CONSULTANT, at its sole cost and expense, will obtain and maintain, in full force and effect during the term of this Contract, the insurance coverage described in Exhibit "C", insuring not only CONSULTANT and its consultants, if any, but also, with the exception of workers’ compensation, employer’s liability and professional liability insurance, naming CITY as an additional insured concerning CONSULTANT’s performance under this Contract. 9.2 All insurance coverage required hereunder will be provided through carriers with Best’s Key Rating Guide ratings of A:VII or higher which are admitted to transact insurance business in the State of California. Any and all consultants of CONSULTANT retained to perform Services under this Contract 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. 9.3 Certificates of such insurance, preferably on the forms provided by CITY, will ~be filed with CITY concurrently with the execution of this Contract. The certificates will be 040802 cl 0072425 8 subject to the approval of CITY’s risk manager and will contain an endorsement stating that the insurance is primary coverage and will not be canceled or altered by the insurer except after filing with the CITY’s city clerk thirty (30) days prior written notice of such cancellation or alteration, and that the City of Palo Alto is named as an 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. 9.4 The procuring of such required policy or policies of insurance will not be construed to limit CONSULTANT’s liability hereunder nor to fulfill the indemnification provisions of this Contract. Notwithstanding the policy or policies of insurance, CONSULTANT will be obligated for the full and total amount of any damage,injury, or loss caused by or directly arising as a result of the Services performed under this Contract, including such damage, injury, or loss arising after the Contract is terminated or the term has expired. SECTION i0.WORKERS’ COMPENSATION i0.i CONSULTANT, by executing this Contract, certifies that it .is aware of the provisions of the Labor Code of the State of California which require every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that Code, and certifies that it will comply with such provisions, as applicable, before commencing the performance of the Project. PROJECT SECTION Ii.TERMINATION OR SUSPENSION OF CONTRACT OR ii.i The city manager may suspend the execution of the Project, in whole or in part, or terminate this Contract, with or without cause, by giying thirty (30) days prior written notice thereof to CONSULTANT, or immediately after submission to CITY by CONSULTANT of any completed item of Basic Services. Upon receipt of such notice, CONSULTANT will immediately discontinue its performance under this Contract. 11.2 CONSULTANT may terminate this Contract or suspend its execution of the Project by giving thirty (30) days prior written notice thereof to CITY, but only in the event of a substantial failure of performance by CITY or in the event CITY indefinitely withholds or withdraws its request for the initiation or continuation of Basic Services or the execution of the Project. 040802 cl 0072425 9 11.3 Upon such suspension or termination by CITY, CONSULTANT will be compensated for the Basic Services and Additional Services performed and Deliverables received and approved prior to receipt of written notice from CITY of such suspension or abandonment, together with authorized additional and reimbursable expenses then due. If the Project is resumed after it has been suspended for more than 180 days, any change in CONSULTANT’s compensation will be subject to renegotiation and, if necessary, approval of CITY’s City Council. If this Contract is suspended.or terminated on account of a~ default by CONSULTANT, CITY will be obligated to compensate CONSULTANT only for that portion of CONSULTANT’s services which are of direct and immediate benefit to CITY, as such determination may be made by the city manager in the reasonable exercise of his discretion. 11.4 In the event of termination of this Contract or suspension of work on the Project by CITY where CONSULTANT is not in default, CONSULTANT will receive compensation as follows: 11.4.1 For approved items of services, CONSULTANT will be compensated for each item of service fully performed in the amounts authorized under this Contract. 11.4.2 For approved items of services on which a notice to proceed is issued by CITY, but which are not fully performed, CONSULTANT will be compensated for each item of service in an amount which bears the same ratio to the total fee otherwise payable for the performance of the service as the quantum of service actually rendered bears to the services necessary for the full performance of that item of service. 11.4.3 The total compensation payable under the preceding paragraphs of this Section will not exceed the payment specified under Section 5 for the respective items of service to be furnished by CONSULTANT. 11.5 Upon such suspension or termination, CONSULTANT will deliver to the city manager immediately any and all copies of the Deliverables, whether or not completed, prepared by CONSULTANT or its consultants, if any, or given to CONSULTANT or its consultants, if any, in connection with this Contract. Such materials will become the property of CITY. 11.6 The failure of CITY to agree with CONSULTANT’s independent findings, conclusions, or recommendations, if the same are called for under this Contract, on the basis of differences in matters of judgment, will not be construed as a failure on the part of CONSULTANT to fulfill its obligations under this Contract. 040802 cl 0072425 1 0 SECTION 12.ASSIGNMENT 12.1 This Contract is for the personal services of CONSULTANT, therefore, CONSULTANT will not assign, transfer, convey, or otherwise dispose of this Contract or any right, title or interest in or to the same or any part thereof without the prior written consent of CITY. A consent to one assignment will not be ~deemed to be a consent to any ~subsequent assignment. Any assignment made without the approval of CITY will be void and, at the option.of the city manager, this Contract may be terminated. This Contract will not be assignable by operation of law. SECTION 13. NOTICES 13.1 All notices hereunder will be given, in writing, and mailed, postage prepaid, by certified mail, addressed as follows: To CITY:Office of the City Clerk City of Palo Alto Post Office Box 10250 Palo Alto, CA 94303 Copy to:Girish Balachandran Department of Utilities - 3rd Flr. City of Palo Alto Post Office Box 10250 Palo Alto, CA 94303 To CONSULTANT: Navigant Consulting, Inc. 3100 Zinfandel Drive, Suite 600 Rancho Cordova, CA 95670-6026 SECTION 14.CONFLICT OF INTEREST 14.1 In accepting this Contract, CONSULTANT covenants that it presently has no interest, and will not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of the Services. 14.2 CONSULTANT further covenants that, in the performance of this Contract, it will not employ contractors or persons having such an interest mentioned above. CONSULTANT certifies that no one who has or will have any financial interest under this Contract is an officer or employee of CITY; this provision will be interpreted in accordance with the applicable provisions of the Palo Alto Municipal Code and the Government Code of the State of California. 040802 cl 0072425 11 SECTION 15. NONDISCRIMINATION 15.1 AS set forth in the Palo Alto Municipal Code, no discrimination will be made in the employment of persons under this Contract because of the age, race, color, national origin, ancestry, religion, disability, sexual preference or gender of such person. If the value of this Contract is, or may be, five thousand dollars ($5,00~) or more, CONSULTANT agrees to meet all requirements of the Palo Alto Municipal Code pertaining to nondiscrimination in employment] including completing the requisite form furnished by CITY and set forth in Exhibit ’~D~ 15.2 CONSULTANT agrees that each contract for services from independent providers will contain a provision substantially as follows: "[Name of Provider] will provide CONSULTANT with a certificate stating that [Name of Provider] is currently in compliance with all Federal and State of California laws covering nondiscrimination in employment; and that [Name of Provider] will not discriminate in the employment of any person under this contract because of the age, race, color, national origin, ancestry, religion, disability, sexual preference or gender of such person." 15.3 If CONSULTANT is found in violation of the nondiscrimination provisions of the State of California Fair Employment Practices Act or similar provisions of Federal law or executive order im the performance of this Contract, it will be in default of this Contract. Thereupon, CITY will have the power to cancel or suspend this Contract, in whole or in part, or to deduct the sum of twenty-five dollars ($25) for each person for each calendar day during which such person was subjected to discrimination, as damages for breach of contract, or both. Only a finding of the State of California Fair Employment Practices Commission or the equivalent federal agency or officer will constitute evidence of a breach of this Contract. SECTION 16.MISCELLANEOUS PROVISIONS 16.1 CONSULTANT represents and warrants that it has knowledge of the requirements of the federal Americans with Disabilities Act of 1990, and the Government Code and the Health and Safety Code of the State of California, relating to access to public buildings and accommodations for disabled persons, and relating to facilities for disabled persons. CONSULTANT will 040802 cl 0072425 1 2 comply with or ensure by its advice that compliance with such provisions will be effected pursuant to the terms of this Contract. 16.2 Upon the agreement of the parties, any controversy or claim arising out of or relating to this Contract may be settled by arbitration in accordance with the Rules of the American Arbitration Association, and judgment upon the award rendered by the Arbitrators may be entered in any court having jurisdiction thereof. 16.3 This Contract will be governed by the laws of the State of California, excluding its conflicts of law. 16.4 In the event that an action is brought, the parties agree that trial of such action will be vested exclusively in the state courts of California or in the United States District Court for the Northern District ofCalifornia in the County of Santa Clara, State of California. 16.5 The prevailing party in any action brought to enforce the terms of this Contract or arising out of this Contract may recover its reasonable costs and attorneys’fees expended in connection with that action. 16.6 This document represents the entire and integrated Contract between the parties and supersedes all prior negotiations, representations, and contracts, either written or oral. This document may be. amended only by a written instrument, which is signed by the parties. 16.7 All provisions of this Contract, whether covenants or conditions, will be deemed to be both covenants and conditions. 16.8 The covenants, terms, conditions and provisions of this Contract will apply to, and will bind, the heirs, successors, executors, administrators, assignees, and consultants, as the case may be, of the parties. 16.9 If a court of competent jurisdiction finds or rules that any provision of this Contract or any amendment thereto is void or unenforceable, the unaffected provisions of this Contract and any amendments thereto will remain in full force and effect° 16.10 All exhibits referred to in this Contract and any addenda, appendices, attachments, and schedules which, from time to time, may be referred to in any duly executed amendment 040802 cl 0072425 13 hereto are by such reference incorporated in this Contract and will be deemed to be a par~t of this Contract. 16.11 This Contract may be executed in any number of counterparts, each of which will be an original, but all of which together will constitute one and the same instrument. 16.12 This Contract is subject to the fiscal provisions of the Charter of the City of Palo Alto and the Palo Alto Municipal Code. This Contract will terminate without any penalty (a) at the end of any fiscal year in the event that funds are not appropriated for the following fiscal year, or (b) at any time within a fiscal year in the event that funds are only appropriated for a portion of the fiscal year and funds for this Contract are no longer available. This Section 16.12 will take precedence in the event of a conflict with any other covenant, term, condition, or provision of this Contract. // // // // // // // // // // // // // // // // 040802 Cl 0072425 1 4 IN WITNESS WHEREOF, the parties hereto have by their duly authorized representatives executed this Contract on the date first above written. ATTEST:CITY OF PAL0 ALTO City Clerk Mayor APPROVED AS TO FORM:NAVIGANT CONSULTING, INC. Senior Assistant City Attorney APPROVED: By: Name: Title: Assistant City Manager By : Director of Administrative Services Name:. Title: Director of Utilities Taxpayer Identification No. 36-409-4854 Risk Manager (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 signing in their respective capacities is acceptable) Attachments: EXHIBIT EXHIBIT "B": EXHIBIT "C": EXHIBIT "D": SCOPE OF PROJECT &TIME SCHEDULE RATE SCHEDULE INSURANCE NONDISCRIMINATION COMPLIANCE FORM 040802 cl 0072425 l 5 CERTIFICATE OF ACKNOWLEDGMENT (Civil Code § 1189) STATE OF ) COUNTY OF ) On , 2004, before me, the undersigned, a Notary Public in and for said County and State,personally appeared , personally known to me or proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature of Notary Public 040802 cl 0072425 16 CERTIFICATE OF ACKNOWLEDGMENT ciVil Code § 1189) STATE OF ) ) SS. COUNTY OF ) On , 2004, before me, the undersigned, a Notary Public in and for said County and State, personally appeared personally known to me or proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature of Notary Public 040802 cl 0072425 17 EXHIBIT A SUMMARY OF SERVlCF Navigant shall provide natural gas consulting services and regulatory support to the City of Palo Alto as outlined in the City’s Request for Proposal, Project number 106775. Services and support shall be comprised of the following six task categories. TASK 1: Monitor and analyze CPUC, FERC,CEC proceedings and represent the City’s interests. In this task Navigant shall monitor and analyze orders, decisions, and filings by and before the CPUC and the CEC and the FERC for impact on the City. Consultant shall recommend courses of action to represent the City’s interests in such proceedings, including presentation of testimony. Specifically, Consultant shall provide this support for the CPUC’s Capacity OIR and PG&E gas rate cases. TASK 2: Maintain an on going presence at the CPUC and PG&E to represent the City’s interests effectively In this task Navigant shall maintain routine and sufficient access to key policymakers and staff at the CPUC to facilitate, upon City authorization, effective and efficient representation of the City’s viewpoints and concerns on gas regulatory issues. Consultant will also maintain routine contact with key staff at PG&E. TASK 3: Work with City to establish regulatory and legislative objectives, goals and priorities. In this task Navigant will communicate on a regular basis with the City staff and develop regulatory and legislative objectives and strategies for the City. Consultant shall perform work requested by the City to support attaining its gas acquisition, gas storage and transportation objectives. TASK 4. Assist City in any negotiation with PG&E’s post Gas Accord 2005 In this task Navigant shall assist City staff in negotiating with PG&E for backbone transmission service, storage assets and other related issues for the period after the expiration of PG &E’s Gas Accord II. TASK 5: Assist City in the PG&E’s BCAP process In this task Navigant shaft assist City staff analyzing PG&E ’s local transmission rates. Task 6: Provide the City with miscellaneous natural gas consulting services In this task Navigant shaft perform other natural gas related work as requested by City staff. N IGANT CONSULTING Exhibit "B" Professional and support services for the City of Palo Alto’s gas and electric utilities, except for testimony, shall be billed at the following rates during Calendar Year 2004: Managing Director Director Principal Senior Engagement Manager Senior Consultant Consultant Associate Analyst Office Services $270 per hour $251 per hour $225 per hour $205 per hour $185 per hour $165 per hour $137 per hour $120 per hour $ 60 per hour *The above rates are discounted rates to reflect the City of Palo Alto’s long- standing relationship with NCI. The rates shall be adjusted each year, commencing January 1, 2005, to reflect the change in rates officially established by NCI. Testimony shall be billed at not less than eight (8) hours per day. Reproduction, printing, communications, computer services, and other miscellaneous support services shall be billed at rates for such services as determined from time to time and officially established by NCI. All travel, food, lodging, and miscellaneous expenses, except automobile mileage, associated with the provision of services hereunder shall be billed at cost plus ten (10) percent. Automobile mileage will be billed at the rate approved by the Internal Revenue Service. Client shall reimburse NCI for any applicable sales tax imposed on services rendered by NCI to Client. EXHIBIT "C" PARTII-INSURANCE REQUIREMENTS FORM 650 CONTRACTORS TO THE CITY OF PALO ALTO (CITY), AT THEIR SOLE EXPENSE, SHALL FOR THE TERM OF THE CONTRACT OBTAIN AND MAINTAIN INSURANCE IN THE AMOUNTS FOR THE COVERAGE SPECIFIED BELOW, AFFORDED BY COMPANIES WITH A BEST’S KEY RATING OF A:VII, OR HIGHER, LICENSED TO TRANSACT INSURANCE BUSINESS IN THE STATE OF CALIFORNIA. AWARD IS CONTINGENT ON COMPLIANCE WITH CITY’S INSURANCE REQUIREMENTS, AS SPECIFIED, BELOW: MINIMUM LIMITS REQUIRED TYPE OF COVERAGE YES WORKER’S COMPENSATION YES AUTOMOBILE LIABILITY YES YES NO COMPREHENSIVE GENERAL LIABILITY, INCLUDING PERSONAL INJURY, BROAD FORM PROPERTY DAMAGE BLANKET CONTRACTUAL, AND FIRE LEGAL LIABILITY COMPREHENSIVE AUTOMOBILE LIABILITY, INCLUDING, OWNED, HIRED, NON-OWNED PROFESSIONAL LIABILITY, INCLUDING, ERRORS AND OMISSIONS, MALPRACTICE (WHEN APPLICABLE), AND NEGLIGENT PERFORMANCE REQUIREMENT STATUTORY STATUTORY BODILY INJURY PROPERTY DAMAGE BODILY INJURY & PROPERTY DAMAGE COMBINED. BODILY INJURY EACH PERSON EACH OCCURRENCE PROPERTY DAMAGE BODILY INJURY AND PROPERTY DAMAGE, COMBINED ALL DAMAGES EACH OCCURRENCE $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 AGGREGATE $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 YES THE CITY OF PALO ALTO IS TO BE NAMED AS AN ADDITIONAL INSURED: BIDDER, AT ITS SOLE COST AND EXPENSE, SHALL OBTAIN AND MAINTAIN, IN FULL FORCE AND EFFECT THROUGHOUT THE ENTIRE TERM OF ANY RESULTANT AGREEMENT, THE INSURANCE COVERAGE HEREIN DESCRIBED, INSURING NOT ONLY BIDDER AND ITS SUBCONTRACTORS, IF ANY, BUT ALSO, WITH THE EXCEPTION OF WORKERS’ COMPENSATION, EMPLOYER’S LIABILITY AND PROFESSIONAL INSURANCE, NAMING AS ADDITIONAL INSURES CITY, ITS COUNCIL MEMBERS, OFFICERS, AGENTS, AND EMPLOYEES. I1. INSURANCE COVERAGE MUST INCLUDE: A.A PROVISION FOR A WRITTEN THIRTY DAY ADVANCE NOTICE TO CITY OF CHANGE IN COVERAGE OR OF COVERAGE CANCELLATION; AND B.A CONTRACTUAL LIABILITY ENDORSEMENT PROVIDING INSURANCE COVERAGE FOR CONTRACTOR’S AGREEMENT TO INDEMNIFY CITY. SUBMIT CERTIFICATE(S) OF INSURANCE EVIDENCING REQUIRED COVERAGE, OR COMPLETE THIS SECTION AND IV AND V, BELOW. A.NAME AND ADDRESS OF COMPANY AFFORDING COVERAGE (NOT AGENT OR BROKER): B.NAME, ADDRESS, AND PHONE NUMBER OF YOUR INSURANCE AGENT/BROKER: C.POLICY NUMBER(S): CITY OF PALO ALTO RFP NO. 148685 PAGE 1 OF 2 PART II - INSURANCE REQUIREMENTS FORM 65(~ D.DEDUCTIBLE AMOUNT(S) (DEDUCTIBLE AMOUNTS IN EXCESS OF $5,000 REQUIRE CITY’S PRIOR APPROVAL): III. IV. AWARD IS CONTINGENT ON COMPLIANCE WITH CITY’S INSURANCE REQUIREMENTS, AND BIDDER’S SUBMI-I-IAL OF CERTIFICATES OF INSURANCE EVIDENCING COMPLIANCE WITH THE REQUIREMENTS SPECIFIED HEREIN. ENDORSEMENT PROVISIONS, WITH RESPECT TO THE INSURANCE AFFORDED TO "ADDITIONAL INSURES" A.PRIMARY COVERAGE WITH RESPECT TO CLAIMS ARISING OUT OF THE OPERATIONS OF THE NAMED INSURED, INSURANCE AS AFFORDED BY THIS POLICY IS PRIMARY AND IS NOT ADDITIONAL TO OR CONTRIBUTINGWITH ANYOTHER INSURANCE CARRIED BY OR FOR THE BENEFIT OF THE ADDITIONAL INSURES. B.CROSS LIABILITY THE NAMING OF MORE THAN ONE PERSON, FIRM, OR CORPORATION AS INSURES UNDER THE POLICY SHALL NOT, FOR THAT REASON ALONE, EXTINGUISH ANY RIGHTS OF THE INSURED AGAINST ANOTHER, BUT THIS ENDORSEMENT, AND THE NAMING OF MULTIPLE INSUREDS, SHALL NOT INCREASE THE TOTAL LIABILITY OF THE COMPANY UNDER THIS POLICY. NOTICE OF CANCELLATION IF THE POLICY IS CANCELED BEFORE ITS EXPIRATION DATE FOR ANY REASON OTHER THAN THE NON-PAYMENT OF PREMIUM, THE ISSUING COMPANY SHALL PROVIDE CITY AT LEAST A THIRTY (30) DAY WRITTEN NOTICE BEFORE THE EFFECTIVE DATE OF CANCELLATION. IF THE POLICY IS CANCELED BEFORE ITS EXPIRATION DATE FOR THE NON-PAYMENT OF PREMIUM, THE ISSUING COMPANY SHALL PROVIDE CITYAT LEAST A TEN (10) DAY WRITTENNOTICE BEFORE THE EFFECTIVE DATE OF CANCELLATION. PROPOSER CERTIFIES THAT PROPOSER’S INSURANCE COVERAGE MEETS THE ABOVE REQUIREMENTS: THE INFORMATION HEREIN IS CERTIFIED CORRECT BY SIGNATURE(S) BELOW. SIGNATURE(S) MUST BE SAME SIGNATURE(S) AS APPEAR(S) ON SECTION 300A. Firm: Signature: Name: (Print or type name) (Print or type name) Signature: Name: NOTICES SHALL BE MAILED TO: PURCHASING AND CONTRACT ADMINISTRATION CITY OF PALO ALTO P.O. BOX 10250 PALO ALTO, CA 94303. CITY OF PALO ALTO RFP NO. 148685 PAGE 2 OF 2 EXHIBIT "D" CERTIFICATION OF NONDISCRIMINATION Certification of Nondiscrimination: As suppliers of goods or services to the City of Palo Alto, the firm and individuals listed below certify that they do not discriminate in employment with regards to age, race, color, religion, sex, national 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. THE INFORMATION HEREIN IS CERTIFIED CORRECT BY SIGNATURE(S) BELOW. Firm: Signature: Name: Signature: Name: Note: (PRINT OR TYPE NAME) (PRINT OR TYPE NAME) California Corporations Code Section 313 requires two corporate officers to execute contracts. *The signature of First Officer* must_ be one of the following: Chairman of the Board; President; or Vice President. **The signature of the Second Officer** must be one of the following: Secretary; Assistant Secretary; Chief Financial Officer; or Assistant Treasurer. (In the alternative, a certified corporate resolution attesting to the signatory authority of the individuals signing in their respective capacities is acceptable) CITY OF PALO ALTO PAGE 1 OF 1 CONTRACT NO. BETWEEN THE CITY OF PALO ALTO AND NAVIGANT CONSULTING, INC. FOR ELECTRIC TECHNICAL CONSULTING SERVICES Attachment B 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 NAVIGANT CONSULTING, INC., a corporation organized under the laws of the State of Delaware, with head office located at Chicago and offices located at 3100 Zinfandel Drive, Suite 600, Rancho Cordova,CA 95670-6026 ("CONSULTANT"). RECITALS: WHEREAS, CITY desires certain professional consulting services ("Services-) and the preparation and delivery of, without limitation, one or more sets of documents, drawings, maps, plans, designs, data, calculations, surveys, specifications, schedules or other writings ("Deliverables") (Services and Deliverables are, collectively, the "Project~), as more fully described in Exhibit "A"; and WHEREAS, CITY desires to engage CONSULTANT, including its employees, if any, in providing the Services by reason of its qualifications and experience in performing the Services, and CONSULTANT has offered to complete the Project on the terms and in the manner set forth herein; NOW, THEREFORE, in consideration of the covenants, terms, conditions, and provisions of this Contract, the parties agree: SECTION i. TERM i.i This Contract will commence on the date of its execution by CITY, and will terminate upon the completion of the Project, unless this Contract is earlier terminated by CITY. Upon the receipt of CITY’s notice to proceed, CONSULTANT will commence work on the initial and subsequent Project tasks in accordance with the time schedule set forth in Exhibit ~A~ Time is of the essence of this Contract. In the event that the Project is not completed within the time required through any fault of CONSULTANT, CITY’s city manager will have the option of extending the time schedule for any period of time. This provision will not preclude the recovery of damages for delay caused by CONSULTANT. 040802 cl 0072~-26 1 SECTION 2.SCOPE OF PROJECT; CHANGES & CORRECTIONS 2.1 The scope of Services and Deliverables constituting the Project will be performed, delivered or executed by CONSULTANT under the phases of the Basic Services as described below. 2.2 CITY may order substantial changes in the scope or character of the Basic Services, the Deliverables, or the Project, either decreasing or increasing the amount of work required of CONSULTANT. In the event that such changes are ordered, subject to the approval of CITY’s City Council, as may be required, CONSULTANT will be entitled to full compensation for all work performed prior to CONSULTANT’s receipt of the notice of change and further will be entitled to an extension of the time schedule. Any increase in compensation for substantial changes will be determined in accordance with the provisions of this Contract. CITY will not be liable for the cost or payment of any change in work, unless the amount of additional compensation attributable to the change in work is agreed to, in writing, by CITY before CONSULTANT commences the performance of any such change in work. 2.3 Where the Project entails the drafting and submission of Deliverables, for example, construction plans, drawings, and specifications, any and all errors, omissions, or ambiguities in the Deliverables, which are discovered by CITY before invitations to bid on a construction project (for which the Deliverables are required) are distributed by CITY, will be corrected by CONSULTANT at no cost to CITY, provided CITY gives notice to CONSULTANT. 2.4 Any and all errors, omissions, or ambiguities in the Deliverables, which are discovered by CITY after the construction contract is awarded by CITY, will be performed by CONSULTANT, as follows: (a) at no cost to CITY insofar as those Services, including the Basic Servi.ces or the Additional Services, as described below, or both, will result in minor or nonbeneficial changes in the construction work required of the construction contractor; or (b) at CITY’s cost insofar as those Services, including the Basic Services or the Additional Services, or both, will add a direct and substantial benefit to the construction work required of the construction contractor. The project manager in the reasonable exercise of his or her discretion will determine whether the Basic Services or the Additional Services, or both, will contribute minor or substantial benefit to the construction work. 040802 el 0072426 2 SECTION 3. CONSULTANT QUALIFICATIONS, STATUS, AND DUTIES OF 3.1 CONSULTANT represents and warrants that it has the expertise and professional qualifications to furnish or cause to be furnished the Services and Deliverables. CONSULTANT further represents and warrants that the project director and every individual, including any consultant (or contractors), charged with the performance of the Services are duly licensed or certified by the State of California, to the extent such licensing or certification is required by law to perform the Services, and that the Project will be executed by them or under their supervision. CONSULTANT will furnish to CITY for approval, prior to execution of this Contract, a list of all individuals and the names of their employers or principals to be employed as consultants. 3.2 In reliance on the representations andwarranties set forth in this Contract, CITY hires CONSULTANT to execute, and CONSULTANT covenants and agrees that it will execute or cause to be executed, the Project. 3.3 CONSULTANT will assign Maury Kruth as the project director to have supervisory responsibility for the performance, progress, and execution of the Project. Bryan Griess will be assigned as the project~ coordinator who will represent CONSULTANT during the day-to-day work on the Project. If circumstances or conditions subsequent to the execution of this Contract cause the substitution of the project director or project coordinator for any reason, the appointment :of a substitute project director or substitute project coordinator will be subject to the prior written approval of the project manager. 3.4 CONSULTANT represents and warrants that it will: 3.4.1 Procure all permits and licenses, pay all charges and fees, and give all notices which may be necessary and incident to the due and lawful prosecution of the Project; 3.4.2 Keep itself fully informed of all existing and future Federal, State of California, and local laws, ordinances, regulations, orders, and decrees which may affect those engaged or employed under this Contract and any ~materials used in CONSULTANT’s performance of the Services; 3.4.3 At all times observe and comply with, and cause its employees and consultants, if any, who are assigned to the performance of this Contract to observe and comply with, the 040802 cl 0072426 3 laws,ordinances, above;and regulations,orders and decrees mentioned 3.4.4 Will report immediately to the project manager, in writing, any discrepancy or inconsistency it discovers in the laws, ordinances, regulations, orders, and decrees mentioned above in relation to the Deliverables. 3.5 Any Deliberables given to, or prepared or assembled by, CONSULTANT or its consultants, if any, under this Contract will become the property of CITY and will not be made available to any individual or organization by CONSULTANT or its consultants, if any, without the prior written approval of’ the city manager. .3.6 CONSULTANT will provide CITY with five (5) copies of any documents which are a part of the Deliverables upon their completion and acceptance by CITY. 3.7 If CITY requests additional copies of any documents which are a part of the Deliverables, CONSULTANT will provide such additional copies and CITY will compensate CONSULTANT for its duplicating costs. 3.8 CONSULTANT will be responsible for employing or engaging all persons necessary to execute the Project. All consultants of CONSULTANT will be deemed to be directly controlled and supervised by CONSULTANT, which will be responsible for their performance.If any employee or consultant of CONSULTANT fails or refuses to carry out the provisions of this Contract or appears to be incompetent or to act in a disorderly or improper manner, the employee or consultant will be discharged immediately from further performance under this Contract on demand of the project manager. 3.9 In the execution of the Project, CONSULTANT and its consultants, if any, will at all times be considered independent contractors and not agents or employees of CITY. 3.10 CONSULTANT will perform or obtain or cause to be performed or obtained any and all of the following Additional Services, not included under the Basic Services, if so authorized, in writing, by CITY: 3.10.1 Providing services as an expert witness in connection with any¯ public hearing or meeting, arbitration proceeding,or proceeding of a court of record; 040802 cl 0072426 3.10.2 Incurring travel and subsistence expenses for CONSULTANT ~and its staff beyond those normally required under the Basic Services; and 3.10.3 Performing any other Additional Services that may be agreed upon by the parties subsequent to the execution of this Contract. 3.11 CONSULTANT will be responsible for employing all consultants deemed necessary to assist CONSULTANT in the performance of the Services. The appointment of consultants must be approved,in advance, by CITY, in writing, and must remain acceptable to CITY during the term of this Contract. SECTION 4.DUTIES OF CITY 4.1 C!T.Y will furnish or cause to be "furnished the services listed in Exhibit "A" and such information regarding its requirements applicable to the Project as may be reasonably requested by CONSULTANT. 4.2 CITY will review and approve, as necessary, in a timely manner the Deliverables and each phase of work performed by CONSULTANT. CITY’s estimated time of review and approval will be furnished to CONSULTANT at the time of submission of each phase of work. CONSULTANT acknowledges and understands that the interrelated exchange of information among CITY’s various departments makes it extremely difficult for CITY to firmly establish the time of each review and approval task. CITY’s failure to review and approve within the estimated time schedule will not constitute a default under this Contract. 4.3 The city manager will represent CITY for all purposes under this Contract. Girish Balachandran, Assistant Director, Resource Management is designated as the project manager for the city manager. The project manager will supervise the performance, progress, and execution of the Project, and will be assisted by Debra Lloyd, Resource Planner, and Tom Finch, Senior Electric Project Engineer. 4.4 If CITY observes or otherwise becomes aware of any default in the performance of CONSULTANT, CITY will use reasonable efforts to give written notice thereof to CONSULTANT in a timely manner. SECTION 5.COMPENSATION 5.1 CITY will compensate CONSULTANT for the following services and work: 040802 cl 0072426 5 5.1.1 In consideration of the full performance of the Basic Services, including any authorized reimbursable expenses; CITY will pay CONSULTANT a fee not to exceed Fifty Thousand Dollars ($50,000) for fiscal year 2004-2005. CITY will exercise the option to renew the contract in the amount of Fifty Thousand Dollars ($50,000) for a second fiscal year (2005-2006) and Fifty Thousand Dollars ($50,000) for a third fiscal year (2006-2007) provided the CONSULTANT is responsive to the CITY’s needs, and the quality of the CONSULTANT’s work is acceptable during the first year of the contract. The total amount of the contract over three years shall not exceed One Hundred and Fifty Thousand Dollars ($150,000). The amount of compensation will be calculated in accordance with the hourly rate schedule set forth in Exhibit "B", on a time and materials basis, up to the maximum amount set forth in this Section. The fees of the consultants, who have direct contractual relationships with CONSULTANT, will be approved, in advance, by CITY. CiTY reserves the right to refuse payment of such fees, if such prior approval is not obtained by CONSULTANT. 5.1.2 The full payment of charges for extra work or changes, or both, in the execution of the Project will be made, provided such request for payment is initiated by CONSULTANT and authorized, in writing, by the project manager. Payment will be made within thirty (30) days of submission by CONSULTANT of a statement, in triplicate, of itemized costs covering such work or changes, or both. Prior to commencing such extra work or changes, or both, the parties will agree upon an estimated maximum cost for such extra work or changes. CONSULTANT will not be paid for extra work or changes, including, without limitation, any design work or change order preparation, which iis made necessary on account of CONSULTANT’s errors, omissions, or oversights. 5.1.3 Direct personnel expense of employees assigned to the execution of the Project by CONSULTANT will include only the work of architects, engineers, designers, job captains, surveyors, draftspersons, specification writers and typists, in consultation, research and design, work in producing drawings, specifications and other documents pertaining to the Project, and in services rendered during construction at the site, to the extent such services are expressly contemplated under this Contract. Included in the cost of direct personnel expense of these employees are salaries and mandatory and customary benefits such as statutory employee benefits, insurance, sick leave, holidays and vacations, pensions and similar benefits. 040802 cl 0072.426 5.2 The schedule of payments will be made as follows: 5.2.1 Payment of the Basic Services will be made in monthly progress payments in proportion to the quantum of services performed, or in accordance with any other schedule of payment mutually agreed upon by the parties, as set forth in Exhibit "B", or within thirty (30) days of submission, in triplicate, of such requests if a schedule of payment is not specified. Final payment will be made by CITY after CONSULTANT has submitted all De!iverables, including, without limitation, reports which have been approved by the project manager. 5.2.2 Payment of the Additional Services will be made in monthly progress payments for services rendered, within thirty (30) days of submission, in triplicate, of such requests. 5.2.3 No deductions will be made from CONSULTANT’s compensation on account of penalties, liquidated damages, or other sums withheld by CITY from payments to general contractors. SECTION 6.ACCOUNTING, AUDITS, OWNERSHIP OF RECORDS 6.1 Records of the direct personnel expenses and expenses incurred in connection with the performance of Basic Services and Additional Services pertaining to the Project will be prepared, maintained, and retained by CONSULTANT in accordance with generally accepted accounting principles and will be made available to CITY for auditing purposes at mutually convenient times during the term of this Contract and for three (3) years following the expiration or earlier termination of this Contract. 6.2 The originals of the Deliverables prepared by or under the direction of CONSULTANT in the performance of this Contract will become the property of CITY irrespective of whether the Project is completed upon CITY’s payment of the amounts required to be paid to CONSULTANT. These originals will be delivered to CITY without additional compensation. CITY will have the right to utilize any final and incomplete drawings, estimates, specifications, and any other documents prepared hereunder by CONSULTANT, but CONSULTANT disclaims any responsibility or liability for any alterations or modifications of such documents. SECTION 7. INDEF!NITY 7.1 CONSULTANT agrees to protect, indemnify, defend and hold harmless CITY, its Council members, officers, employees and agents, from any and al! demands, claims, or liability of 040802 cl 0072426 7 any nature, including death or injury to any person, property damage or any other loss, caused by or arising out of CONSULTANT’s, its officers’, agents’, consultants’ or employees’ negligent acts, errors, or omissions, or willful misconduct, or conduct for which applicable law may impose strict liability on CONSULTANT in the performance of or failure to perform its obligations under this Contract. SECTION 8.WAIVERS 8.1 The waiver by either party of any breach or violation of any covenant, term, condition or provision of this Contract or of the provisions of any ordinance or law will not be deemed to be a waiver of any such covenant, term, condition, provision, ordinance, or law or of any subsequent breach or violation of the same or of any other covenant, term, condition, provision, ordinance or law. The subsequent acceptance by either party of any fee or other money which may become due hereunder will not be deemed to be a waiver of any preceding breach or violation by the other party of any covenant, term, condition or provision of this Contract or of any applicable law or ordinance. 8.2 No payment, partial payment, acceptance, or partial acceptance by CITY will operate as a waiver on the part of CITY of any of its rights under this Contract. SECTION 9. INSURANCE 9.1 CONSULTANT, at its sole cost and expense, will obtain and maintain, in full force and effect during the term of this Contract, the insurance coverage described in Exhibit insuring not only ’CONSULTANT and its consultants, if any, but also, with the exception of workers’ compensation, employer’s liability and professional liability insurance, naming CITY as an additional insured concerning CONSULTANT’s performance under this Contract. 9.2 All insurance coverage required hereunder will be provided through carriers with Best’s Key Rating Guide ratings of A:VII or higher which are admitted to transact insurance business in the State of California. Any and all consultants of CONSULTANT retained to perform Services under this Contract 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. 9.3 Certificates of such insurance, preferably on the forms provided by CITY, will be filed with CITY concurrently with the execution of this Contract. The certificates wil! be 040802 cl 0072426 8 subject to the approval of CITY’s risk manager and will contain an endorsement stating that the insurance is primary coverage and .will not be canceled or altered by the insurer except after filing with the CITY’s city clerk thirty (30) .days prior written notice of such cancellation or alteration, and that the City of Palo Alto is named as an 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. 9.4 The Procuring of such required policy or policies of insurance will not be construed to limit CONSULTANT’s liability hereunder nor to fulfill the indemnification provisions of this Contract.Notwithstanding the policy .or policies of insurance, CONSULTANT will be obligated for the full and total amount of any damage,injury, or loss caused by or directly arising as a result of the Services performed under this Contract, including such damage, injury, or loss arising after the Contract is terminated or the term has expired. SECTION i0.WORKERS’ COMPENSATION i0.i CONSULTANT, by executing this Contract, certifies that it is aware of the provisions of the Labor Code of the State of California which require every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that Code, and certifies that it will comply with such provisions,as applicable, before commencing the performance of the Project. PROJECT SECTION i!. TERMINATION OR SUSPENSION OF CONTRACT OR ii.i The city manager may suspend the execution of the Project, in whole ’or in part, or terminate this Contract, with or without cause, by giving thirty (30) days prior written notice thereof to CONSULTANT, or immediately after submission to CITY by CONSULTANT of any completed item of Basic Services. Upon receipt of such notice, CONSULTANT wil! immediately discontinue its performance under this Contract. 11.2 CONSULTANT may terminate this Contract or suspend its execution of the Project by giving thirty (30) days prior written notice thereof to CITY, but only in the event of a substantial failure of performance by CITY or in the event CITY indefinitely withholds or withdraws its request for the initiation or continuation of Basic Services or the execution of the Project. 040802 cl 0072426 9 11.3 Upon such suspension or termination by CITY, CONSULTANT will be compensated for the Basic Services and Additional Services performed and Deliverables received and approved prior to receipt of written notice from CITY of such suspension or abandonment, together with authorized additional and reimbursable expenses then due. If the Project is resumed after it has been suspended for more than 180 days, any change in CONSULTANT’s compensation will be subject to renegotiation and, if necessary, approval of CITY’s City Council. If this Contract is suspended or terminated on account of a default by CONSULTANT, CITY will be obligated to compensate CONSULTANT only for that portion of CONSULTANT’s services which are of direct and immediate benefit to CITY, as such determination may be made by the city manager in the reasonable exercise of his discretion. 11.4 In the event of termination of this Contract or suspension of work on the Project by CITY where CONSULTANT is not in default, CONSULTANT will receive compensation as follows: 11.4.1 For approved items of services, CONSULTANT will be compensated for each item of service fully performed in the amounts authorized under this Contract. 11.4.2 For approved items of services on which a notice to proceed is issued by CITY, but which are not fully performed, CONSULTANT will be compensated for each item of service in an amount which bears the same ratio to the tota! fee otherwise payable for the performance of the service as the quantum of service actually rendered bears to the services necessary for the full performance of that item of service. 11.4.3 .The total compensation payable under the preceding paragraphs of this Section will not exceed the payment specified under Section 5 for the respective items of service to be furnished by CONSULTANT. 11.5 Upon such suspension or termination, CONSULTANT will deliver to the city manager immediately any and all copies of the Deliverables, whether or not completed, prepared by CONSULTANT or its consultants, if any, or given to CONSULTANT or its consultants, if any, in connection with this Contract. Such materials wil! become the property of CITY. 11.6 The failure of CITY to agree with CONSULTANT’s independent findings, conclusions, or recommendations, if the same are called for under this Contract, on the basis of differences in matters of judgment, will not be construed as a failure on the part of CONSULTANT to fulfill its obligations under this Contract. 040802 cl 0072426 1 0 SECTION 12. ASSIGNMENT 12.1 This Contract is for th~ personal services of CONSULTANT, therefore, CONSULTANT will not assign, transfer, convey, or otherwise dispose of this Contract or any right, title or interest in or to the same or any part thereof without the prior written consent of CITY. A consent to one assignment will not be deemed to be a consent to .any subsequent assignment. Any assignment made without the approval of CITY will be void and, at the option of the city manager, this Contract may be terminated. This Contract wil!. not be assignable by operation of law. SECTION 13. NOTICES 13.1 All notices hereunder will be given, in writing, and mailed, postage prepaid, by certified mail, addressed as follows: To CITY:Office of the City Clerk City of Palo Alto Post Office Box 10250 Palo Alto, CA 94303 Copy to:Girish Balachandran Department of Utilities - 3rd Flr. City of Palo Alto Post Office Box 10250 Palo Alto, CA 94303 To CONSULTANT: Navigant Consulting, Inc. 3100 Zinfandel Drive, Suite 600 Rancho Cordova, CA 95670-6026 SECTION 14. CONFLICT OF INTEREST 14.1 In accepting this Contract, CONSULTANT covenants that it presently has no interest, and will not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of the Services. 14.2 CONSULTANT further covenants that, in the performance of this Contract, it will not employ contractors or persons having such an interest mentioned above. CONSULTANT certifies that no one who has or will have any financial interest under this Contract is an officer or employee of CITY; this provision will be interpreted in accordance with the applicable provisions of. the Palo Alto Municipal Code and the Government Code of the State of California. 040802 cl 0072426 i i SECTION 15. NONDISCRIMINATION 15.1 As set forth in the Palo Alto Municipal Code, no discrimination will be made in the employment of persons under this Contract because of the age, race, color, national origin, ancestry, religion, disability, sexual preference or gender of such person. If the value of this Contract is, or may be, five thousand dollars ($5,000) or more, CONSULTANT agrees to meet all requirements of the Palo Alto Municipal Code pertaining to nondiscrimination in employment, including completing the requisite form furnished by CITY and set forth in Exhibit "D’. 15.2 CONSULTANT agrees that each contract for services from independent providers will contain a provision substantially as follows: "[Name of Provider] will provide CONSULTANT with a certificate stating that [Name of Provider] is currently in compliance with all Federal and State of California laws covering nondiscrimination in employment; and that [Name of Provider] will not discriminate in the employment of any person under this contract because of the age, race, color, national origin, ancestry, religion, disability, sexual preference or gender of such person." 15.3 If CONSULTANT is found in violation of the nondiscrimination provisions of the State of California Fair Employment Practices Act or similar provisions of Federal law or executive order in ithe performance of this Contract, it wil! be in default of this Contract. Thereupon, CITY will have the power to cancel or suspend this Contract, in whole or in part, or to deduct the sum of twenty-five dollars ($25) for each person for each calendar day during which such person was subjected to discrimination, as damages for breach of contract, or both. Only a finding of the State of California Fair Employment Practices Commission or the equivalent federal agency or officer will constitute evidence of a breach of this Contract. SECTION 16. MISCELLANEOUS PROVISIONS 16.1 CONSULTANT represents and warrants that it has knowledge of the requirements of the federal Americans with Disabilities Act of 1990, and the Government Code and the Health and Safety Code of the State of California, relating to access to public buildings and accommodations for disabled persons, and relating to facilities for disabled persons. CONSULTANT will 040802 ¢1 0072426 ~_ 2 comply with or ensure by its advice that compliance with such provisions will be effected pursuant to the terms of this Contract. 16.2 Upon the agreement of the parties, any controversy or claim arising out of or relating to this Contract may be settled by arbitration in accordance with the Rules of the American Arbitration Association, and judgment upon the award rendered by the Arbitrators may be entered in any court having jurisdiction thereof. 16.3 This Contract will be governed by the laws of the State of California, excluding its conflicts of law. 16.4 In the event that an action is brought, the parties agree that trial of such action will be vested exclusively in the state courts of California or in the United States District Court for the Northern District of California in the County of Santa Clara, State of California. 16.5 The prevailing party in any action brought to enforce the terms of this Contract or arising out of this Contract may recover its reasonable costs and attorneys’fees expended in connection with that action° 16.6 This document represents the entire and integrated Contract between the parties and supersedes all prior negotiations, representations, and contracts, either written or oral. This document may be amended only by a written instrument, which is signed by the parties. 16.7 All provisions of this Contract, whether covenants or conditions, will be deemed to be both covenants and conditions. 16.8 The covenants, terms, conditions and provisions of this Contract will apply to, and will bind, the heirs, successors, executors, administrators, assignees, and consultants, as the case may be, of the parties. 16.9 If. a court of competent jurisdiction finds or rules that any provision of this Contract or any amendment thereto is void or unenforceable, the unaffected provisions of this Contract and any amendments thereto will remain in full force and effect. 16.10 All exhibits referred to in this Contract and any addenda, appendices, attachments, and schedules which, from time to time, may be referred to in any duly executed amendment 040802 cl 0072426 13 hereto are by such reference incorporated in this Contract and will be deemed to be a part of this Contract. 16.11 This Contract may be executed in any number of counterparts, each of which will be an original, but all of which together will constitute one and the same instrument. 16.12 This Contract is subject to the fiscal provisions of the Charter of the City of Palo Alto and the Palo Alto Municipal Code. This Contract will terminate without any penalty (a) at the end of any fiscal year in the event that funds are not appropriated for the following fiscal year, or (b) at any time within a fiscal year in the event that funds are only appropriated for a portion of the fiscal year and funds for this Contract are no longer available. This Section 16.12 will take precedence in the event of a conflict with any other covenant, term, condition, or provision of this Contract. // // // // // // // // // // // // // // // // 040802 cl 0072426 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 Mayor APPROVED AS TO FORM:NAVIGANT CONSULTING, INC. Senior Assistant City Attorney APPROVED: By: Name: Title: Assistant City Manager By: Director of Administrative Services Name: Title: Director of Utilities Taxpayer Identification No. 36-409-4854 Risk Manager (Compliance with ~orp. 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 capacities is acceptable) Attachments: EXHIBIT "A’: EXHIBIT "B": EXHIBIT "C": EXHIBIT "D": SCOPE OF PROJECT &TIME SCHEDULE RATE SCHEDULE INSURANCE NONDISCRIMINATION COMPLIANCE. FORM 040802 cl 0072426 ! 5 CERTIFICATE OF ACKNOWLEDGMENT Civil Code § 1189) STATE OF ) COUNTY OF ) On , 2004, before me, the undersigned, a Notary Public in and for said County and State, personally appeared personally known to me or proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature of Notary Public 040802 cl 0072426 1 6 CERTIFICATE OF ACKNOWLEDGMENT (Civil Code § 1189) STATE OF ) COUNTY OF ) On , 2004, before me, the undersigned, a Notary Public in and for said County and State, personally appeared personally known to me or proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature of Notary Public 040802 cl 0072426 17 EXHIBIT A SUMMARY OF SERVICE Navigant Consulting, Inc (Navigant) will provide electric technical consulting, and legislative and regulatory support services to the City of Palo Alto as outlined in the City’s Request for Proposal, Project Number 106775. Services and support will consist of the following six task categories: Task 1: Monitor and analyze ISO, CPUC, CEC, FERC, PG&E (Grid Planning), and other related agencies’ activities, and, based on discussion with Staff, represent the City’s interests in proceedings. In this task Navigant will monitor, analyze and, represent the City’s interest in the activities of the ISO, CPUC, CEC, FERC, PG&E (Grid Planning) and other agencies as related to ISO tariff amendments, grid management charges, congestion charges, transmission access charges, neutrality and other charges and protect the City’s interests. Navigant will recommend regulatory strategies for the City and positions in proceedings before the FERC, CPUC and other agencies as appropriate. Navigant will monitor the developing California electricity market design and energy markets, and increasing State and Federal involvement in the electricity industry as they relate to the San Francisco Greater Bay Area (Bay Area). Navigant will identify the Bay Area specific risks for the City from developments such as Iocational pricing and firm transmission rights or other instruments such as CRRs, and State imposed measures for deliverability, outage coordination, maintenance standards and the use of muni-owned transmission lines and local generation. Task 2: Maintain an ongoing presence at the IS(::) to represent the City’s interest effectively. In this task Navigant shall maintain routine and sufficient access to key policymakers and staff at the ISO to facilitate, upon City authorization, effective and efficient representation of the City’s viewpoints and concerns on Bay Area transmission and system operation issues. Task 3: Work with the City to establish regulatory and legislative objectives, goals and priorities. In this task Navigant will communicate on a regular basis with the City staff and develop regulatory and legislative objectives and strategies for the City. Task 4: Assist City with analysis, improvement and expansion of transmission, generation, and reliability issues in the Bay Area. In this task Navigant will assist the City in identifying, developing and promoting long-term solutions for reliability and economic transmission needs, local generation, and non-wires solutions. Navigant may recommend economic transmission expansion or other alternatives for the Bay Area. Navigant will perform power flow, short circuit and feasibility studies for electric transmission, substation and generation conceptual plans as directed by City staff. Navigant will provide technical support to the City in discussions with PG&E concerning these plans. Task 5: Assist City with issues related to public power and municipal utilities. In this task Navigant will assist the City with municipal utility issues related to jurisdiction, tax- exempt bonds, access to low-cost federal power, independence in setting rates and involvement in Joint Powers Authority for investment in generation and transmission of electricity. Task 6: Provide City with other electricity-related services as needed. The rapidly developing electricity industry scenario in Califomia will require other advisory services from the Navigant as these nee,ds are identified by City staff. N i\VI CANT CONSULTING Exhibit "B" Professional and support services for the City of Palo Alto’s gas and electric utilities, except for testimony, shall be billed at the following rates during Calendar Year 2004: Managing Director Director Principal Senior Engagement Manager Senior Consultant Consultant Associate Analyst Office Services $270 per hour $251 per hour $225 per hour $205 per hour $185 per hour $165 per hour $137 per hour $120 per hour $ 60 per hour *The above rates are discounted rates to reflect the City o/Palo Alto’s long- standing relationship with NCI. The rates shall be adjusted each year, commencing January 1, 2005, to reflect the change in rates officially established by NCI. Testimony shall be billed at not less than eight (8) hours per day. Reproduction, printing, communications, computer services, and other miscellaneous support services shall be billed at rates for such services as determined from time to time and officially established by NCI. All travel, food, lodging, and miscellaneous expenses, except automobile mileage, associated with the provision of services hereunder shall be billed at cost plus ten (10) percent. Automobile mileage will be billed at the rate approved by the Internal Revenue Service. Client shall reimburse NCI for any applicable sales tax imposed on services rendered by NCI to Client. EXHIBIT "C" PART II - INSURANCE REQUIREMENTS FORM 65O CONTRACTORS TO THE CITY OF PALO ALTO (CITY), AT THEIR SOLE EXPENSE, SHALL FOR THE TERM OF THE CONTRACT OBTAIN AND MAINTAIN INSURANCE IN THE AMOUNTS FOR THE COVERAGE SPECIFIED BELOW, AFFORDED BY COMPANIES WITH A BEST’S KEY RATING OF A:VII, OR HIGHER, LICENSED TO TRANSACT INSURANCE BUSINESS IN THE STATE OF CALIFORNIA. AWARD IS CONTINGENT ON COMPLIANCE WITH CITY’S INSURANCE REQUIREMENTS, AS SPECIFIED, BELOW: REQUIRED YES YES YES YES NO YES TYPE OF COVERAGE WORKER’S COMPENSATION AUTOMOBILE LIABILITY COMPREHENSIVE GENERAL LIABILITY, INCLUDING PERSONAL INJURY, BROAD FORM PROPERTY DAMAGE BLANKET CONTRACTUAL, AND FIRE LEGAL LIABILITY COMPREHENSIVE AUTOMOBILE LIABILITY, INCLUDING, OWNED, HIRED, NON-OWNED PROFESSIONAL LIABILITY, INCLUDING, ERRORS AND OMISSIONS, MALPRACTICE (WHEN APPLICABLE), AND NEGLIGENT PERFORMANCE REQUIREMENT STATUTORY STATUTORY BODILY INJURY PROPERTY DAMAGE BODILY INJURY & PROPERTY DAMAGE COMBINED. BODILY INJURY EACH PERSON EACH OCCURRENCE PROPERTY DAMAGE BODILY INJURY AND PROPERTY DAMAGE, COMBINED ALL DAMAGES MINIMUM LIMITS EACH OCCURRENCE $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,o00,000 AGGREGATE $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 THE CITY OF PALO ALTO IS TO BE NAMED AS AN ADDITIONAL INSURED: BIDDER, AT ITS SOLE COST AND EXPENSE, SHALL OBTAIN AND MAINTAIN, IN FULL FORCE AND EFFECT THROUGHOUT THE ENTIRE TERM OF ANY RESULTANT AGREEMENT, THE INSURANCE COVERAGE HEREIN DESCRIBED, INSURING NOT ONLY BIDDER AND ITS SUBCONTRACTORS, IF ANY, BUT ALSO, WITH THE EXCEPTION OF WORKERS’ COMPENSATION, EMPLOYER’S LIABILITY AND PROFESSIONAL INSURANCE, NAMING AS ADDITIONAL INSURES CITY, ITS COUNCIL MEMBERS, OFFICERS, AGENTS, AND EMPLOYEES. If. INSURANCE COVERAGE MUST INCLUDE: A.A PROVISION FOR A WRITTEN THIRTY DAY ADVANCE NOTICE TO CITY OF CHANGE IN COVERAGE OR OF COVERAGE CANCELLATION; AND B.A CONTRACTUAL LIABILITY ENDORSEMENT PROVIDING INSURANCE COVERAGE FOR CONTRACTOR’S AGREEMENT TO INDEMNIFY CITY. SUBMIT CERTIFICATE(S) OF INSURANCE EVIDENCING REQUIRED COVERAGE, OR COMPLETE THIS SECTION AND IV AND V, BELOW. A.NAME AND ADDRESS OF COMPANY AFFORDING COVERAGE (NOT AGENT OR BROKER): B.NAME, ADDRESS, AND PHONE NUMBER OF YOUR INSURANCE AGENT/BROKER: C.POLICY NUMBER(S): CITY OF PALO ALTO RFP NO. 148685 PAGE 1 OF 2 PART II - INSURANCE REQUIREMENTS FORM 650 D.DEDUCTIBLE AMOUNT(S) (DEDUCTIBLE AMOUNTS IN EXCESS OF $5,000 REQUIRE CITY’S PRIOR APPROVAL): III. IV. AWARD IS CONT NGENT ON COMPLIANCE WITH CITY’S INSURANCE REQUIREMENTS, AND BIDDER’S SUBMI-Ft-AL OF CERTIFICATES OF INSURANCE EVIDENCING COMPLIANCE WITH THE REQUIREMENTS SPECIFIED HEREIN. ENDORSEMENT PROVISIONS, WITH RESPECT TO THE INSURANCE AFFORDED TO "ADDITIONAL INSURES" A.PRIMARY COVERAGE WITH RESPECT TO CLAIMS ARISING OUT OF THE OPERATIONS OF THE NAMED INSURED, INSURANCE AS AFFORDED BY THIS POLICY IS PRIMARY AND IS NOT ADDITIONAL TO OR CONTRIBUTINGWITH ANYOTHER INSURANCE CARRIEDBY OR FOR THE BENEFIT OF THE ADDITIONAL INSURES. B.CROSS LIABILITY THE NAMING OF MORE THAN ONE PERSON, FIRM, OR CORPORATION AS INSURES UNDER THE POLICY SHALL NOT, FOR THAT REASON ALONE, EXTINGUISH ANY RIGHTS OF THE INSURED AGAINST ANOTHER, BUT THIS ENDORSEMENT, AND THE NAMING OF MULTIPLE INSUREDS, SHALL NOT INCREASE THE TOTAL LIABILITY OF THE COMPANY UNDER THIS POLICY. NOTICE OF CANCELLATION IF THE POLICY IS CANCELED BEFORE ITS EXPIRATION DATE FOR ANY REASON OTHER THAN THE NON-PAYMENT OF PREMIUM, THE ISSUING COMPANY SHALL PROVIDE CITY AT LEAST A THIRTY (30) DAY WRITTEN NOTICE BEFORE THE EFFECTIVE DATE OF CANCELLATION. IF THE POLICY IS CANCELED BEFORE ITS EXPIRATION DATE FOR THE NON-PAYMENT OF PREMIUM, THE ISSUING COMPANY SHALL PROVIDE CITY AT LEAST A TEN (10) DAY WRITTEN NOTICE BEFORE THE EFFECTIVE DATE OF CANCELLATION. PROPOSER CERTIFIES THAT PROPOSER’S INSURANCE COVERAGE MEETS THE ABOVE REQUIREMENTS: THE INFORMATION HEREIN IS CERTIFIED CORRECT BY SIGNATURE(S) BELOW.SIGNATURE(S)MUST BE SAMESIGNATURE(S) AS APPEAR(S) ON SECTION 300A. Firm: Signature: Name: (Print or type name) (Print or type name) Signature: Name: NOTICES SHALL BE MAILED TO: PURCHASING AND CONTRACT ADMINISTRATION ,CITY OF PALO ALTO P.O. BOX 10250 PALO ALTO, CA 94303. CITY OF PALO ALTO RFP NO. 148685 PAGE 2 OF 2 EXHIBIT "D" CERTIFICATION OF NONDISCRIMINATION Certification of Nondiscrimination: As suppliers of goods or services to the City of Palo Alto, the firm and individuals listed below certify that they do not discriminate in employment with regards to age, race, color, religion, sex, national origin, ancestry, disability, or sexual preference; tliat they are in compliance with all Federal, State, and local directives and executive orders regarding nondiscrimination in employment. THE INFORMATION HEREIN IS CERTIFIED CORRECT BY SIGNATURE(S) BELOW. Firm: Signature: Name: Signature: Name: Note: (PRINT OR TYPE NAME) (PRINT OR TYPE NAME) California Corporations Code Section 313 requires two corporate officers to execute contracts. *The signature of First Officer* must be one of the following: Chairman of the Board," President; or Vice President. **The signature of the Second Officer** must be one of the following: Secretary; Assistant Secretary; Chief Financial Officer; or Assistant Treasurer. (In the alternative, a certified corporate resolution attesting to the signatory authority of the individuals signing in their respective capacities is acceptable) CITY OF PALO ALTO PAGE 1 OF 1 CONTRACT NO. BETWEEN THE CITY OF PALO ALTO AND FLYIqN RESOURCE CONSULTANTS, INC. FOR CONSULTING SERVICES Attachment C 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 FLYNN RESOURCE CONSULTANTS, INC., a sole proprietorship, located at 5440 Edgeview Drive, Discovery Bay, CA 94514 (~CONSULTANT"). RECITALS: WHEREAS, CITY desires certain professional consulting services ("Services") and the preparation and delivery of, without limitation, one or more sets of documents, drawings, maps, plans, designs, data, calculations, surveys, specifications, schedules or other writings (~Deliverables") (Services and Deliverables are, collectively, the "Project"), as more fully described in Exhibit "A"; and WHEREAS, CITY desires to engage CONSULTANT, including its employees, if any, in providing the Services by reason of its qualifications and experience in performing the Services, and CONSULTANT has offered to complete the Project on the terms and in the manner set forth herein; NOW, THEREFORE, in consideration of the covenants, terms, conditions, and provisions of this Contract, the parties agree: SECTION i. TERM i.i This Contract will commence on the date of its execution by CITY, and will terminate upon the completion of the Project, unless this Contract is earlier terminated by CITY. Upon the receipt of CITY’s notice to proceed, CONSULTANT will commence work on the initial and subsequent Project tasks in accordance with the time schedule set forth in Exhibit Time is of the essence of this Contract. In the event that the Project is not completed within the~ time required through any fault of CONSULTANT, CITY’s ~city manager will have the option of extending the time schedule for any period of time. This provision will not preclude the recovery of damages for delay caused by CONSULTANT. 040802 cl 0072424 1 SECTION 2.SCOPE OF PROJECT; CHANGES & CORRECTIONS 2.1 The scope of Services and Deliverables constituting the Project will be performed, delivered or executed by CONSULTANT under the phases of the Basic Services as described below. 2.2 CITY may order substantial changes in the scope or character of the Basic Services, the Deliverables, or the Project, either decreasing or increasing the amount of work required of CONSULTANT. In the event that such changes are ordered, subject to the approval of CITY’s City Council, as may be required, CONSULTANT will be entitled to full compensation for all work performed prior to CONSULTANT’s receipt of the notice of change and further will be entitled to an extension of the time schedule. Any increase in compensation for substantial changes will be determined in accordance with the provisions of this Contract. CITY will not be liable for the cost or payment of any change in work, unless the amount of additional compensation attributable to the change in work is agreed to, in writing, by CITY before CONSULTANT commences the performance of any such change in work. 2.3 Where the Project entails the drafting and submission of Deliverables, for example, construction plans, drawings, and specifications, any and all errors, omissions, or ambiguities in the Deliverables, which are discovered by CITY before invitations to bid on a construction project (for which the Deliverables are required) are distributed by CITY, will be corrected by CONSULTANT at no cost to CITY, provided CITY gives notice to CONSULTANT. 2.4 Any and all errors, omissions, or ambiguities in the Deliverables, which are discovered by CITY after the construction contract is awarded by CITY, will be performed by CONSULTANT, as follows: (a) at no cost to CITY insofar as those Services, including the Basic Services or the Additional Services, as described below, or both, will result in minor or nonbeneficial changes in the construction work required of the construction contractor; or (b) at CITY’s cost insofar as those Services, including the Basic Services or the Additional Services, or both, will add a direct and substantial benefit to the construction work required of the construction contractor. The project manager in the reasonable exercise of his or her discretion will determine whether the Basic Services or the Additional Services, or both, will contribute minor or substantial benefit to the construction work. 040802 cl 0072424 2 SECTION 3. CONSULTANT QUALIFICATIONS,STATUS,AND DUTIES OF 3.1 CONSULTANT represents and warrants that it has the expertise and professional qualifications to furnish or cause to be furnished the Services and Deliverables. CONSULTANT further represents and warrants that the project director and every individual, including any consultant (or contractors), charged with the performance of the Services are duly licensed or certified by the State of California, to the extent such licensing or certification is required by law to perform the Services, and that the Project will be executed by them or under their supervision. CONSULTANT will furnish to CITY for approval, prior to execution of this Contract, a list of all individuals and the names of their employers or principals to be employed as consultants. 3.2 In reliance on the represen£ations and warranties set forth in this Contract, CITY hires CONSULTANT to execute, and CONSULTANT covenants and agrees that it will execute or cause to be executed, the Project. 3.3 CONSULTANT will assign Barry Flynn as the project director to have supervisory responsibility for the performance, progress, and execution of the Project. Doug Boccignone will be assigned as the project coordinator who will represent CONSULTANT during the day-to-day work on the Project. If circumstances or conditions subsequent to the execution of this Contract cause the substitution of the project director or project coordinator for any reason, the appointment~ of a substitute project director or substitute project coordinator will be subject to the prior written approval of the project manager. 3.4 CONSULTANT represents and warrants that it will: 3.4.1 Procure all permits and licenses, pay all charges and fees, and give all notices which may be necessary and incident to the due and lawful prosecution of the Project; 3.4.2 Keep itself fully informed of all existing and future Federal, State of California, and local laws, ordinances, regulations, orders, and decrees which may affect those engaged or employed under this Contract and any materials used in CONSULTANT’s performance of the Services; 3.4.3 At all times observe and comply with, and cause its employees and consultants, if any, who are assigned to the performance of this Contract to observe and comply with, the 040802 cl 0072424 3 laws,ordinances, above;and regulations,orders and decrees mentioned 3.4.4 Will report immediately to the project manager, in writing, any discrepancy or inconsistency it discovers in the laws, ordinances, regulations, orders, and decrees mentioned above in relation to the Deliverables. 3.5 Any Deliverables given to, or prepared or assembled by, CONSULTANT or its consultants, if any, under this Contract will become the property of CITY and will not be made available to any individual or organization by CONSULTANT or its consultants, if any, without the prior written approval of the city manager. 3.6 CONSULTANT will provide CITY with five (5) copies of any documents which are a part of the Deliverables upon their completion and acceptance by CITY. 3.7 If CITY requests additional copies of any documents which are a part of the Deliverables, CONSULTANT will provide such additional copies and CITY will compensate CONSULTANT for its duplicating costs. 3.8 CONSULTANT will be responsible for employing or engaging all persons necessary to execute the Project. All consultants of CONSULTANT will be deemed to be directly controlled and supervised by CONSULTANT, which will be responsible for their performance.If any employee or consultant of CONSULTANT fails or refuses to carry out the provisions of this Contract or appears to be incompetent or to act in a disorderly or improper manner, the employee or consultant will ~be discharged immediately from further performance under this Contract on demand of the project manager. 3.9 In the execution of the Project, CONSULTANT and its consultants, if any, will at all times be considered independent contractors and not agents or employees of CITY. 3.10 CONSULTANT will perform or obtain or cause to be performed or obtained any and all of the following Additional Services, not included under the Basic Services, if so authorized, in writing, by CITY: 3.10.1 Providing services as an expert witness in connection with any public hearing or meeting, arbitration proceeding,or proceeding of a court of record; 040802 cl 0072424 4 3.10.2 Incurring travel and subsistence expenses for CONSULTANT and its staff beyond those normally required under the Basic Services; and 3.10.3 Performing any other Additional Servicesthat may be agreed upon by the parties subsequent to the execution of this Contract. 3.11 CONSULTANT will be responsible for employing all consultants deemed necessary to assist CONSULTANT in the performance of the Services. The appointment of consultants must be approved,in advance, by CITY, in writing, and must remain acceptable to CITY during the term of this Contract. SECTION 4. DUTIES OF CITY 4.1 CITY will furnish or cause to be furnished the services listed in Exhibit "A" and such information regarding its requirements applicable to the Project as may be reasonably requested by CONSULTANT. 4.2 CITY will review and approve, as necessary, in a timely manner the Deliverables and each phase of work performed by CONSULTANT. CITY’s estimated time of review and approval will be furnished to CONSULTANT at the time of submission of each phase of work. CONSULTANT acknowledges and understands that the interrelated exchange of information among CITY’s various departments makes it extremely difficult for CITY to firmly establish the time of each review and approval task. CITY’s failure to review and approve within the estimated time schedule will not constitute a default under this Contract. 4.3 The~ city manager will represent CITY for all purposes under this Contract. Girish Balachandran, Assistant Director, Resource Management is designated as the project manager for the city manager. The project manager will supervise the performance, progress, and execution of the Project, and will be assisted by Debra Lloyd, Resource Planner. 4.4 If CITY observes or otherwise becomes aware of any default in the performance of CONSULTANT, CITY will use reasonable efforts to give written notice thereof to CONSULTANT in a timely manner. SECTION 5.COMPENSATION 5.1 CITY will compensate CONSULTANT for the following services and work: 040802 cl 0072424 5 5.1.1 In consideration of the full performance of the Basic Services, including any authorized reimbursable expenses; CITY will pay CONSULTANT a fee not to exceed Seventy Two Thousand Dollars ($72,000) for fiscal year 2004-2005. CITY will exercise the option to renew the contract in the amount of Seventy Six Thousand Dollars ($76,000) for a second fiscal year (2005-2006) and Eighty Thousand Dollars ($80,000) for a third fiscal year (2006-2007) provided the CONSULTANT is responsive to the CITY’s needs, and the quality of the CONSULTANT’s work is acceptable during the first year of the contract. The total amount of the contract over three years shall not exceed Two Hundred Twenty Eight Thousand Dollars ($228,000). The amount of compensation will be calculated in accordance with the hourly rate schedule set forth in Exhibit "B", on a time and materials basis, up to the maximum amount set forth in this Section. The fees of the consultants, who have direct contractual relationships with CONSULTANT, will be approved, in advance, by CITY. CITY reserves the right to refuse payment of such fees, if such prior approval is not obtained by CONSULTANT. 5.1.2 The full payment of charges for extra work or changes, or both, in the execution of the Project will be made, ~ provided such request for payment is initiated by CONSULTANT and authorized, in writing, by the project manager. Payment will be made within thirty (30) days of submission by CONSULTANT of a statement, in triplicate, of itemized costs covering such work or changes, or both. Prior to commencing such extra work or changes, or .both, the parties will agree upon an estimated maximum cost for such extra work or changes. CONSULTANT will not be paid for extra work or changes, including, without limitation, any design work or change order preparation, whichl is made necessary on account of CONSULTANT’s errors, omissions, .or oversights. 5.1.3 Direct personnel expense of employees assigned to the execution of the Project by CONSULTANT will include only the work of architects, engineers, designers, job captains, surveyors, draftspersons, specification writers and typists, in consultation, research and design, work in producing drawings, specifications and other documents pertaining to the Project, and in services rendered during construction at the site, to the extent such services are expressly contemplated under this Contract. Included in the cost of direct personnel expense of these employees are salaries and mandatory and customary benefits such as statutory employee benefits, insurance, sick leave, holidays and vacations, pensions and similar benefits. 5.2 The schedule of payments will be made as follows: 040802 cl 0072424 5.2.1 Payment of the Basic Services will be made in monthly progress payments in proportion to the quantum of .services performed, or in accordance with any other schedule of payment mutually agreed upon by the parties, as set forth in Exhibit "B", or within thirty (30) days of submission, in triplicate, of such requests if a schedule of payment is not specified. Final payment will be made by CITY after CONSULTANT has submitted all Deliverables, including, without limitation, reports which have been apprQved by the project manager. 5.2.2 Payment of the Additional Services will be made in monthly progress payments for services rendered, within thirty (30) days of submission, in triplicate, of such requests. 5.2°3 No deductions will be made from CONSULTANT’s compensation on account of penalties, liquidated damages, or other sums withheld by CITY from payments to general contractors. SECTION 6.ACCOUNTING, AUDITS, OWNERSHIP OF RECORDS 6.1 Records of the direct personnel expenses and expenses incurred in connection with the performance of Basic Services and Additional Services pertaining to the Project will be prepared, maintained, and retained by CONSULTANT in accordance with generally accepted accounting principles and will be made available to CITY for auditing purposes at mutually convenient times during the term of this Contract and for three (3) years following the expiration or earlier termination of this Contract. 6.2 The originals of the Deliverables prepared by or under the direction of CONSULTANT in the performance of this Contract will beCome the property of CITY irrespective of whether the Project is completed upon CITY’s payment of the amounts required to be paid to CONSULTANT. These originals will be delivered to CITY without additional compensation. CITY will have the right to utilize any final and incomplete drawings, estimates, specifications, and any other documents prepared hereunder by CONSULTANT, but CONSULTANT disclaims any responsibility or liability for any alterations or modifications of such documents. SECTION 7.INDEMNITY 7.1 CONSULTANT agrees to protect, indemnify, defend and hold harmless CITY, its Council members, officers, employees and agents,from any and all demands, claims, or liability of any nature,including death or injury to any person, property damage or any other loss, caused by or arising out of 040802 cl 0072424 7 CONSULTANT’s, its officers’, agents’, consultants’ or employees’ negligent acts, errors, or omissions, or willful misconduct, or conduct for which applicable law may impose strict liability on CONSULTANT in the performance of or failure to perform its obligations under this Contract. SECTION 8.WAIVERS 8.1 The waiver by either party of any breach or violation of any covenant, term, condition or provision of this Contract or of the provisions of any ordinance or law will not be deemed to be a waiver of any such covenant, term, condition, provision, ordinance, or law or of any subsequent breach or violation of the same or of any other covenant, term, condition, provision, ordinance or law. The subsequent acceptance by either party of any fee or other money which may become due hereunder will not be deemed to be a waiver of any preceding breach or violation by the other party of any covenant, term, condition or provision of this Contract or of any applicable law or ordinance. 8.2 No payment, partial payment, acceptance, or partial acceptance by CITY will operate as a waiver on the part of CITY of any of its rights under this Contract. SECTION 9.INSURANCE 9.1 CONSULTANT, at its sole cost and expense, will obtain and maintain, in full force and effect during the term of this Contract, the insurance coverage described in Exhibit "C", insuring not only CONSULTANT and its consultants, if any, but also, with the exception of workers’ compensation, employer’s liability and professional liability insurance, naming CITY as an additional insured concerning CONSULTANT’s performance under this Contract. 9.2 All insurance coverage required hereunder will be provided through carriers with Best’s Key Rating Guide ratings of A:VII or higher which are admitted to transact insurance business in the State of California. Any and all consultants of CONSULTANT retained to perform Services under this Contract 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. 9.3 Certificates of such insurance, preferably on the forms provided by CITY, will be filed with CITY concurrently with the execution of this Contract. The certificates will be subject to the approval of CITY’s risk manager and will contain an endorsement stating that the insurance is primary coverage 040802 cl 0072424 8 and will not be canceled or altered by the insurer except after filing with the cITY’s city clerk thirty (30) days prior written notice of such cancellation or alteration, and that the City of Palo Alto is named as an 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. 9.4 The procuring of such required policy or policies of insurance will not be construed to limit CONSULTANT’s liability hereunder nor to fulfill the indemnification provisions of this Contract. Notwithstanding the policy or policies of insurance, CONSULTANT will be obligated for the full and total amount of any damage,injury, or loss caused by or directly arising as a result of the Services performed under this Contract, including such damage, injury, or loss arising after the Contract is terminated or the term has expired. SECTION i0. WORKERS’ COMPENSATION i0.i CONSULTANT, by executing this Contract, certifies that it is aware of the provisions of the Labor Code of the State of California which require every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that Code, and certifies that it will comply with such provisions,as applicable, before commencing the performance of the Project. PROJECT SECTION ii. TERMINATION OR SUSPENSION OF CONTRACT OR Ii.i The city manager may suspend the execution of the Project, in whole or in part, or terminate this Contract, with or without cause, by giving thirty (30) days prior written notice thereof to CONSULTANT, or immediately after submission to CITY by CONSULTANT of any completed item of Basic Services. Upon receipt of such notice, CONSULTANT will immediately discontinue its performance under this Contract. 11.2 CONSULTANT may terminate this Contract orsuspend its execution of the Project by giving thirty (30) days prior written notice thereof to CITY, but only in the event of a substantial failure of performance by CITY or in the event CITY indefinitely withholds or withdraws its request for the initiation or continuation of Basic Services or the execution of the Project. ~ 11.3 Upon such suspension or termination by CITY, CONSULTANT will be compensated for the Basic Services and 040802 cl 0072424 9 Additional Services performed and Deliverables received and approved prior to receipt of written notice from CITY of such suspension or abandonment, together with authorized additional and reimbursable expenses then due. If the Project is resumed after it has been suspended for more than 180 days, any change in CONSULTANT’s compensation will be subject to renegotiation and, if necessary, approval of CITY’s City Council. If this Contract is suspended or terminated on account of a default by CONSULTANT, CITY will be obligated to compensate CONSULTANT only for that portion of CONSULTANT’s services which are of direct and immediate benefit to CITY, as such determination may be made by the city manager in the reasonable exercise of his discretion. 11.4 In the event of termination of this Contract or suspension of work on the Project by CITY ’where CONSULTANT is not in default, CONSULTANT will receive compensation as follows: 11.4.1 For approved items of services, CONSULTANT will be compensated for each item of service fully performed in the amounts authorized under this Contract. 11.4.2 For approved items of services on which a notice to proceed is issued by CITY, but which are not fully performed, CONSULTANT will be compensated for each item of service in an amount which bears the same ratio to the total fee otherwise payable for the performance of the service as the quantum of service actually rendered bears to the services necessary for the full performance of that item of service. 11.4.3 The total compensation payable under the preceding paragraphs of this Section will not exceed the payment specified under Section 5 for the respective items of service to be furnished by CONSULTANT. 11.5 Upon such suspension or termination, CONSULTANT will deliver to the city manager immediately any and all copies of the Deliverables, whether or not completed, prepared by CONSULTANT or its consultants, if any, or given to CONSULTANT or its consultants, if any, in connection with this Contract. Such materials will become the property of CITY. 11.6 The failure of CITY to agree with CONSULTANT’s independent findings, conclusions, or recommendations, if the same are called for under this Contract, on the basis of differences in matters of judgment, will not be construed as a failure on the part of CONSULTANT to fulfill its obligations under this Contract. 040802 cl 0072424 1 0 SECTION 12.ASSIGNMENT 12.1 This Contract is for the personal services of CONSULTANT, therefore, CONSULTANT will not assign, transfer, convey, or otherwise dispose of this Contract or any right, title or interest in or to the same or any part thereof without the prior written consent of CITY. A consent to one assignment will not be deemed to be a consent to any subsequent assignment. Any assignment made without the approval of CITY will be void and, at the option of the city manager, this Contract may be terminated. This Contract will not be assignable by operation of law. SECTION 13.NOTICES 13.1 All notices hereunder will be given, in writing, and mailed, postage prepaid, by certified mail, addressed as follows- To CITY:Office of the City Clerk City of Palo Alto Post Office Box 10250 Palo Alto, CA 94303 Copy to:Girish Balachandran Department of Utilities - 3rd Flr. City of Palo Alto Post Office Box 10250 Palo Alto, CA 94303 To CONSULTANT: Flynn Resource Consultants, Inc. 5440 Edgeview Drive Discovery Bay, CA 94514 SECTION 14.CONFLICT OF INTEREST 14.1 In accepting this Contract, CONSULTANT covenants that it presently has no interest, and will not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of the Services. 14.2 CONSULTANT further covenants that, in the performance of this Contract, it will not employ contractors, or persons having such an interest mentioned above. CONSULTANT certifies that no one who has or will have any financial interest under this Contract is an officer or employee of CITY; this provision will be interpreted in accordance with the applicable provisions of the Palo Alto Municipal Code and the Government Code of the State of California. 040802 cl 0072424 11 SECTION 15. NONDISCRIMINATION 15.1 As set forth in the Palo Alto Municipal Code, no discrimination will be made in the employment of persons under this Contract because of the age, race, color, national origin, ancestry, religion, disability, sexual preference or gender of such person. If the value of this Contract is, or may be, five thousand dollars ($5,000) or more, CONSULTANT agrees to meet al! requirements of the Palo Alto Municipal Code pertaining to nondiscrimination in employment, including completing the requisite form furnished by CITY and set forth in Exhibit "D". 15.2 CONSULTANT agrees that each contract for services from independent providers will contain a provision substantially as follows: "[Name of Provider] will provide CONSULTANT with a certificate stating that [Name of Provider] is currently in compliance with all Federal and State of California laws covering nondiscrimination in employment; and that [Name of Provider] will not discriminate in the employment of any person under this contract because of the age, race, color, national origin, ancestry, religion, disability, sexual preference or gender of such person." 15.3 If CONSULTANT is found in violation of the nondiscrimination provisions of the State of California Fair Employment Practices Act or similar provisions of Federal law or executive order in the performance of this Contract, it will be in default of this Contract. Thereupon, CITY will have the power to cancel or suspend this Contract, in whole or in part, or to deduct the sum of twenty-five dollars ($25) for each person for each calendar day during which such person was subjected to discrimination, as damages for breach of contract, or both. Only a finding of the State of California Fair Employment Practices Commission or the equivalent federal agency or officer will constitute evidence of a breach of this Contract. SECTION 16.MISCELLANEOUS PROVISIONS 16.1 CONSULTANT represents and warrants that it has knowledge of the requirements of the federal Americans with Disabilities Act of 1990, and the Government Code and the Health and Safety Code of the State of California, relating to access to public buildings and accommodations for disabled persons, and relating to facilities for disabled persons. CONSULTANT will 040802 cl 0072424 12 comply with or ensure by its advice that compliance with such provisions will be effected pursuant to the terms of this Contract. 16.2 Upon the agreement of the parties, any controversy or claim arising out of or relating to this Contract may be settled by arbitration in accordance with the Rules of the American Arbitration Association, and judgment upon the award rendered by the Arbitrators may be entered in any court having jurisdiction thereof. 16.3 This Contract will be governed by the laws of the State of California, excluding its conflicts of law. 16.4 In the event that an action is brought, the parties agree that trial of such action will be vested exclusively in the state courts of California or in the United States District Court for the Northern District of California in the County of Santa Clara, State of California. 16.5 The prevailing party in any action brought to enforce the terms of this Contract or arising out of thisContract may recover its reasonable costs and attorneys’feesexpended in connection with that action. 16.6 This document represents the entire and integrated Contract between the parties and supersedes all prior negotiations, representations, and contracts, either written or oral. This document may be amended only by a written instrument, which is signed by the parties. 16.7 All provisions of this Contract, whether covenants or conditions, will be deemed to be both covenants and conditions. 16.8 The covenants, terms, conditions and provisions of this Contract will apply to, and will bind, the heirs, successors, executors, administrators, assignees, and consultants, as the case may be, of the parties. 16.9 If a court of competent jurisdiction finds or rules that any provision of this Contract or any amendment thereto is void or unenforceable, the unaffected provisions of this Contract and any amendments thereto will remain in full force and effect. 16.10 All exhibits referred to in this Contract and any addenda, appendices, attachments, and schedules which, from time to time, may be referred to in any duly executed amendment 040802 cl 0072424 13 hereto are by such reference incorporated in this Contract and will be deemed to be a part of this Contract. 16.11 This Contract may be executed in any number of counterparts, each of which will be an original, but all of which together will constitute one and the same instrument. 16.12 This Contract is subject to the fiscal provisions of the Charter of the City of Palo Alto and the Palo Alto Municipal Code. This Contract will terminate without any penalty (a) at the end of any fiscal year in the event that funds are not appropriated for the following fiscal year, or (b) at any time within a fiscal year in the event that funds are only appropriated for a portion of the.fiscal year and funds for this Contract are no longer available. This Section 16.12 will take precedence in the event of a conflict with any other covenant, term, condition, or provision of this Contract. // // // // // // // // // // // // // // // // 040802 cl 0072424 14 IN WITNESS WHEREOF, the parties hereto have by their duly authorized representatives executed this Contract on the date first above written. ATTEST:CITY OF PAL0 ALTO City Clerk APPROVED AS TO FORM: Senior Assistant City Attorney APPROVED: Assistant City Manager Mayor FLYNN RESOURCE CONSULTANTS, INC. By: Name: Title: Director of Administrative Services Director of Utilities By: Name: Title: Risk Manager Attachments: EXHIBIT "A": EXHIBIT "B": EXHIBIT "C": EXHIBIT "D": Taxpayer Identification No. 94-3024565 (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 signing in their respective capacities is acceptable) SCOPE OF PROJECT &TIME SCHEDULE RATE SCHEDULE INSURANCE NONDISCRIMINATION COMPLIANCE FORM 040802 cl 0072424 15 CERTIFICATE OF ACKNOWLEDGMENT (Civil Code § 1189) STATE OF ) COUNTY OF ) On , 2004, before me, the undersigned, a Notary Public in and for said County and State, personally appeared personally known to me or proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature of Notary Public 040802 cl 0072424 1 6 CERTIFICATE OF ACKNOWLEDGMENT (Civil Code § 1189) STATE OF ) COUNTY OF ) On , 2004, before me, the undersigned, a Notary Public in and for said County and State, personally appeared personally known to me or proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature of Notary Public 040802 cl 0072424 17 EXHIBIT A SUMMARY OF SERVICE Flynn Resource Flynn RCls Inc. (Flynn RCI) will provide electric technical consulting, and legislative and regulatory support services to the City of Palo Alto as outlined in the City’s Request for Proposal, Project Number 106775. Services and support will consist of the following six task categories: Task 1: Monitor and analyze ISO, CPUC, CEC, FERC, PG&E (Grid Planning), and other related agencies’ activities, and, based on discussion with Staff, represent the City’s interests in proceedings. In this task Flynn RCl will monitor, analyze and, represent the City’s interest in the activities of the ISO, CPUC, CEC, FERC, PG&E (Grid Planning) and other agencies as related to ISO tariff amendments, grid management charges, congestion charges, transmission access charges, neutrality and other charges and protect the City’s interests. Flynn RCI will recommend regulatory strategies for the City and positions in proceedings before the FERC, CPUC and other agencies as appropriate. Flynn RCI will monitor the developing California electricity market design and energy markets, and increasing State and Federal involvement in the electricity industry as they relate to the San Francisco Greater Bay Area (Bay Area). Flynn RCI will identify the Bay Area specific risks for the City from developments such as Iocational pricing and firm transmission rights or other instruments such as CRRs, and State imposed measures for defiverability, outage coordination, maintenance standards and the use of muni-owned transmission lines and local generation. Task 2: Maintain an ongoing presence at the ISO to represent the City’s interest effectively. In this task Flynn RCI shall maintain routine and sufficient access to key policymakers and staff at the ISO to facilitate, upon City authorization, effective and efficient representation of the City’s viewpoints and concerns on Bay Area transmission and system operation issues. Task 3: Work with the City to establish regulatory and legislative objectives, goals and priorities. In this task Flynn RCI will communicate on a regular basis with the City staff and develop regulatory and legislative objectives and strategies for the City. Task 4: Assist City with analysis, improvement and expansion of transmission, generation, and reliability issues in the Bay Area. In this task Flynn RCI will assist the City in identifying, developing and promoting long-term " solutions for reliability and economic transmission needs, local generation, and non-wires solutions. Flynn RCI may recommend economic transmission expansion or other altematives for the Bay Area. Flynn RCI will perform power flow, short circuit and feasibility studies for electric transmission, substation and generation conceptual plans as directed by City staff. Flynn RCI will provide technical support to the City in discussions with PG&E conceming these plans. Task 5: Assist City with issues related to public power and municipal utilities. In this task Flynn RCI will assist the City with municipal utility issues related to jurisdiction, tax- exempt bonds, access to low-cost federal power, independence in setting rates and involvement in Joint Powers Authority for investment in generation and transmission of electricity. Task 6: Provide City with other electricity-related services as needed. The rapidly developing electricity industry scenario in California will require other advisory services from the Flynn RCI as these needs are identified by City staff. Exhibit "B" City of Palo Alto RFP 106775 Fees Because the level of effort required in each task area is dependent upon outside influences, such as potential.future ISO FERC filings, and upon the degree to which CPAU is able to leverage the efforts of other entities with similar interests, such as CMUA, NCPA and BAMx, it is not possible to provide a detailed breakdown of costs or fees by work product. Flynn RCI’s hourly rates for services are provided below: Flynn Resource Consultants Inc. Rates for Services - 2004 Flynn Resource Consultants Inc. hourly rates for professional services are listed below: Principal Senior Consultant Consultant Associate Consultant Analyst $240-265 per hour $180-225 per hour $160-175 per hour $125-150 per hour $ 60-110 per hour Reproduction, printing, communications, computer services, and other miscellaneous support services shall be billed at 5% (five percent) of the labor costs for the billing period. This additional "non-labor" cost will be included for each billing period. All travel, food, and miscellaneous expenses, except automobile mileage, associated with the provision of services hereunder shall be billed at cost. Automobile mileage will be billed at the rate approved by the Internal Revenue Service. This Schedule of Fees shall be reviewed annually. PART II - INSURANCE REQUIREMENTS EXHIBIT "C" FORM 650 CONTRACTORS TO THE CITY OF PALO ALTO (CITY), AT THEIR SOLE EXPENSE, SHALL FOR THE TERM OF THE CONTRACT OBTAIN AND MAINTAIN INSURANCE IN THE AMOUNTS FOR THE COVERAGE SPECIFIED BELOW, AFFORDED BY COMPANIES WITH A BEST’S KEY RATING OF A:VII, OR HIGHER, LICENSED TO TRANSACT INSURANCE BUSINESS IN THE STATE OF CALIFORNIA. AWARD IS CONTINGENT ON COMPLIANCE WITH CITY’S INSURANCE REQUIREMENTS, AS SPECIFIED, BELOW: MINIMUM LIMITS REQUIRED TYPE OF COVERAGE YES WORKER’S COMPENSATION YES AUTOMOBILE LIABILITY YES YES NO COMPREHENSIVE GENERAL LIABILITY, INCLUDING PERSONAL INJURY, BROAD FORM PROPERTY DAMAGE BLANKET CONTRACTUAL, AND FIRE LEGAL LIABILITY COMPREHENSIVE AUTOMOBILE LIABILITY, INCLUDING, OWNED, HIRED, NON-OWNED PROFESSIONAL LIABILITY, INCLUDING, ERRORS AND OMISSIONS, MALPRACTICE (WHEN APPLICABLE), AND NEGLIGENT PERFORMANCE REQUIREMENT STATUTORY STATUTORY BODILY INJURY PROPERTY DAMAGE BODILY INJURY & PROPERTY DAMAGE COMBINED. BODILY INJURY EACH PERSON EACH OCCURRENCE PROPERTY DAMAGE BODILY INJURY AND PROPERTY DAMAGE, COMBINED ALL DAMAGES EACH OCCURRENCE $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 AGGREGATE $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 YES THE CITY OF PALO ALTO IS TO BE NAMED AS AN ADDITIONAL INSURED: BIDDER, AT ITS SOLE COST AND EXPENSE, SHALL OBTAI~N AND MAINTAIN, IN FULL FORCE AND EFFECT THROUGHOUT THE ENTIRE TERM OF ANY RESULTANT AGREEMENT, THE INSURANCE COVERAGE HEREIN DESCRIBED, INSURING NOT ONLY BIDDER AND ITS SUBCONTRACTORS, IF ANY, BUT ALSO, WITH THE EXCEPTION OF WORKERS’ COMPENSATION, EMPLOYER’S LIABILITY AND PROFESSIONAL INSURANCE, NAMING AS ADDITIONAL INSURES CITY, ITS COUNCIL MEMBERS, OFFICERS, AGENTS, AND EMPLOYEES. I1. INSURANCE COVERAGE MUST INCLUDE: A PROVISION FOR A WRITTEN THIRTY DAY ADVANCE NOTICE TO CITY OF CHANGE IN COVERAGE OR OF COVERAGE CANCELLATION; AND A CONTRACTUAL LIABILITY ENDORSEMENT PROVIDING INSURANCE COVERAGE FOR CONTRACTOR’S AGREEMENT TO INDEMNIFY CITY. SUBMIT CERTIFICATE(S)OF INSURANCE EVIDENCING REQUIRED COVERAGE, OR COMPLETE THIS SECTION AND IV AND V, BELOW. A.NAME AND ADDRESS OF COMPANY AFFORDING COVERAGE (NOT AGENT OR BROKER): B.NAME, ADDRESS, AND PHONE NUMBER OF YOUR INSURANCE AGENT/BROKER: C.POLICY NUMBER(S): CITY OF PALO ALTO RFP NO. 148685 PAGE 1 OF 2 PARTII-INSURANCE REQUIREMENTS FORM 650~ D.DEDUCTIBLE AMOUNT(S) (DEDUCTIBLE AMOUNTS IN EXCESS OF $5,000 REQUIRE CITY’S PRIOR APPROVAL): III. IV. AWARD IS CONTINGENT ON COMPLIANCE WITH CITY’S INSURANCE REQUIREMENTS, AND BIDDER’S SUBMI’I-I’AL OF CERTIFICATES OF INSURANCE EVIDENCING COMPLIANCE WITH THE REQUIREMENTS SPECIFIED HEREIN. ENDORSEMENT PROVISIONS, WITH RESPECT TO THE INSURANCE AFFORDED TO "ADDITIONAL INSURES" A.PRIMARY COVERAGE WITH RESPECT TO CLAIMS ARISING OUT OF THE OPERATIONS OF THE NAMED INSURED, INSURANCE AS AFFORDED BY THIS POLICY IS PRIMARY AND IS NOT ADDITIONAL TO OR CONTRIBUTINGWITH ANYOTHER INSURANCE CARRIEDBY OR FOR THE BENEFIT OF THE ADDITIONAL INSURES. CROSS LIABILITY THE NAMING OF MORE THAN ONE PERSON, FIRM, OR CORPORATION AS INSURES UNDER THE POLICY SHALL NOT, FOR THAT REASON ALONE, EXTINGUISH ANY RIGHTS OF THE INSURED AGAINST ANOTHER, BUT THIS ENDORSEMENT, AND THE NAMING OF MULTIPLE INSUREDS, SHALL NOT INCREASE THE TOTAL LIABILITY OF THE COMPANY UNDER THIS POLICY. NOTICE OF CANCELLATION IF THE POLICY IS CANCELED BEFORE ITS EXPIRATION DATE FOR ANY REASON OTHER THAN THE NON-PAYMENT OF PREMIUM, THE ISSUING COMPANY SHALL PROVIDE CITY AT LEAST A THIRTY (30) DAY WRITTEN NOTICE BEFORE THE EFFECTIVE DATE OF CANCELLATION. IF THE POLICY IS CANCELED BEFORE ITS EXPIRATION DATE FOR THE NON-PAYMENT OF PREMIUM, THE ISSUING COMPANY SHALL PROVIDE CITYAT LEAST A TEN (10) DAY WRITTENNOTICE BEFORE THE EFFECTIVE DATE OF CANCELLATION. PROPOSER CERTIFIES THAT PROPOSER’S INSURANCE COVERAGE MEETS THE ABOVE REQUIREMENTS: THE INFORMATION HEREIN IS CERTIFIED CORRECT BY SIGNATURE(S) BELOW. SIGNATURE(S) MUST BE SAME SIGNATURE(S) AS APPEAR(S) ON SECTION 300A. Firm: Signature: Name: Signature: , (Print or type name) (Print or type name) Name: NOTICES SHALL BE MAILED TO: PURCHASING AND CONTRACT ADMINISTRATION CITY OF PALO ALTO P.O. BOX 10250 PALO ALTO, CA 94303. CITY OF PALO ALTO RFP NO. 148685 PAGE 2 OF 2 EXHIBIT "D" CERTIFICATION OF NONDISCRIMINATION Certification of Nondiscrimination: As suppliers of goods or services to the City of Pale 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. THE INFORMATION HEREIN IS CERTIFIED CORRECT BY SIGNATURE(S) BELOW. Firm: Signature: Name: Signature: Name: Note: (PRINT OR TYPE NAME) (PRINT OR TYPE NAME) Cafifornia Corporations Code Section 313 requires two corporate officers to execute contracts. *The signature of First Officer* must be one of the following: Chairman of the Board; President; or Vice President. **The signature of the Second Officer** must be one of the following: Secretary; Assistant Secretary; Chief Financial Officer; or Assistant Treasurer. (In the alternative, a certified corporate resolution attesting to the signatory authority of the individuals signing in their respective capacities is acceptable) CITY OF PALe ALTO PAGE 1 OF 1