HomeMy WebLinkAbout2001-06-25 City Council (14)City of Palo Alto
City Manager’s Report
TO:HONORABLE CITY COUNCIL
16
FROM:CITY MANAGER DEPARTMENT: UTILITIES
- DATE:JUNE 25, 2001 CMR:281:01
SUBJECT:APPROVAL OF A CONTRACT
INTERNATIONAL IN THE AMOUNT OF
DEVELOPMENT AND IMPLEMENTATION
LOAD REDUCTION PROGRAM.
RECOMMENDATION
TO PLANERGY
$256,000 FOR THE
OF THE SUMMER
Staff recommends that Council:
Approve and authorize the Mayor to execute the attached contract with Planergy
International in the amount of $256,000 for the development and implementation
of the Summer Load Reduction Program.
Authorize the City Manager or his designee to negotiate and execute one or more
change orders to the contract with Planergy International for related, additional but
unforeseen work that may develop during the project for an additional amount that
will not exceed $30~000.
DISCUSSION
Project Description
Because of the deteriorating energy situation in California, the City of Palo Alto Utilities
(CPAU) has developed a load management program to reduce load during the summer
months and reduce the number of rolling blackouts. Many of CPAU largest customers
CMR:281:01 Page 1 of 4
have agreed to participate in the Summer Load Reduction Program (SLRP) and the
program tests completed so far are very encouraging.
Participants in the load management programs are large Palo Alto businesses that agree
to curtail their load by twenty percent every time that the CPAU requests a reduction. In
exchange for this voluntary reduction the participating customers are removed from the
rotating outage blocks.
CPAU will activate the load management program to reduce the frequency and severity
of rolling blackouts between June 1, 2001 and September 30, 2001. A pilot load
management program in the spring of 2001, with four participating customers, helped
Palo Alto avoid rolling blackouts two times during April. The load management program
will be used in coordination with the 5-megawatt backup generator that has been installed
at the Municipal Service Center.
The SLRP will be implemented during two time periods:
Part of the load will be reduced when the Califomia Independent System Operator
(ISO) requests load reduction under its Demand Reduction Program (expected during
Stage 2). Participants in the Demand Reduction Program are paid by the ISO for
providing demand reductions. Palo Alto’s participation in the ISO program during
Stage 2 will provide revenues to CPAU that are expected to reimburse the SLRP
costs, including this contract with Planergy International.
Most of the load will be reduced during Stage 3 electric shortages when the ISO
requires Palo Alto to curtail load on the electric system. In addition, the CPAU will
use the back-up generator to reduce rolling blackouts for customers.
Contractor Selection Process
Planergy International will be serving as the program manager for this project. Planergy
will assist the City with the following services:
¯Program design
¯Marketing plan development and assistance.
¯Submission of demand response bid to California. ISO
¯Technical support to candidate customers ’
¯Monitoring and verification and metering system platform
¯Equipment verification and testing
CMR:281:01 Page 2 of 4
¯Systemdispatch
¯System operation
¯Data management and program accounting
Planergy International was selected without a competitive bidding process for the
Summer Load Management Program (SLMP) for the following reasons:
Planergy International is the contractor selected by the Northern California Power
Agency (NCPA) to provide load management services to all NCPA members,
including Palo Alto. NCPA used a competitive, selection process to select Planergy
International for load .management services. Palo Alto staff investigated other
potential suppliers of load management services and agreed that the NCPA selection
of Planergy International offered the best and most reliable services to meet the City’s
immediate needs.
0
0
Planergy International has invested a significant amount of staff time helping Palo
Alto design, develop and implement our SLMP. The SLMP incorporates many of the
ideas, suggestions and methods proposed by Planergy. It is unlikely that any other
company could provide the same service for summer 2001. It is also unlikely that any
other firm could provide the services for a lower cost than Planergy International.
Palo Alto has benefited from the significant amount of up-front effort of Planergy
International in helping to design and develop the SLMP.
During spring 2001 when Planergy and City staff were developing the SLMP, there
was no time available to conduct a formal RFP.process. At all times from January
2001 to the present time, staff has been extremely overburdened with responding to
the energy crisis. Because of the serious time constraints, it has been impractical to
solicit bids from other firms for the 2001 SLMP.
RESOURCE IMPACT
Funding for this project is available in the Electric Fund Operating Budget for fiscal year
2001-02 as adopted by Council on June 11, 2001. The project will be funded by the
Electric Fund Public Benefit Program. The $256,000 cost of this contract with Planergy
International is expected to be offset by revenues received from the ISO by participating
in their Demand Reduction Program during a Phase 2 declaration. The recognition of
these revenues will be accomplished during the midyear budget process.
CMR:281:01 Page 3 of 4
POLICY IMPLICATIONS
This recommendation is consistent with existing City policy of providing highly reliable
electrical service to Utilities’ customers. The recommendation is also consistent with the
recently adopted Utilities Strategic Implehaentation Plan,. including Strategy No. 2:
Preserve Supply Cost Advantage, Strategy No. 4: Deliver Competitive Products, Strategy
No. 6: Maintain Financial Strength and Strategy No. 7: Improve Enviro~amental Quality.
ENVIRONMENTAL REVIEW
Approval of the Summer Load Reduction Program does not constitute a project under the
California Environmental Quality Act and, therefore, is exempt from the environmental
assessment requirement.
ATTACHMENTS
A: Contract with Planergy International
PREPARED BY:./~t-
Kirk Miller, Resource Planner
DEPARTMENT HEAD:
CITY MANAGER APPROVAL:
//D~Cctor of Utilities
EMILY HARRISON
Assistant City Manager
CMR:281:01 Page 4 of 4
CONTRACT NO.
BETWEEN THE CITY OF PALO ALTO AND
PLANERGY SERVICES, INC.
FOR CONSULTING SERVICES
This Contract No. is entered into
, by and between the CITY OF PALO ALTO, a
chartered city and a municipal corporation of the’ State of
California ("CITY"), and PLANERGY SERVICES, INC., a Delaware
corporation, a wholly-owned subsidiary of Planergy International,
Inc.~ located at 1003 W. Cutting Blvd., Suite Ii0, Richmond, CA
94804-2028 ("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
"~’; and
WHEREAS,. the purpose of this contract .is to authorize
CONSULTANT to proceed with developing, implementing and managing a
Load Curtailment Program ("LCP") on behalf of the CITY and its
largest electric customers.
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
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 fully
implemented 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
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preclude the recovery of damages for delay caused by CONSULTANT.
Any recovery of damages’due to delay will be limited to the amount
of CONSULTANT compensation.
SECTION 2.SCOPE OF PROJECT; CHANGES & CORRECTIONS
2.1 The scope of Services and Deliverables constituting
the Project willbe 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 eventthat 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.
SECTION 3. .QUALIFICATIONS, STATUS, AND DUTIES OF
CONSULTANT
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.
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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 Dave Slifer as the project
director to have supervisory responsibility for the performance,
progress, and execution of the Project. Dave Base will beassigned
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 dir4ctor 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 complywith, and cause
its employees and consultants, if any, who are assigned to the
performance of this Contract to observe and comply with, the laws,
ordinances, regulations, orders and decrees mentioned above; and
3.4.4 Will report immediately to the project manager,
in writing, any discrepancy or inconsistency it discovers in the
laws, ordinances, regulations, orders, and decrees mentioned above
in relation to the Deliverables.
3.5 Any Deliverables given to, or prepared or assembled
by, CONSULTANT or its consultants, if any, ounder 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
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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;
3.10.2 Incurring travel and subsistence expenses for
CONSULTANT and its staff beyond those normally required under the
Basic Services;
3.10.3 Performing any other Additional Services that
may be agreed upon by the parties subsequentto the execution of
this Contract; and
3.10.4 Other Additional Services now or hereafter
described in Exhibit "A" to this Contract.
3.11 CONSULTANT will be responsible for employing
all consultants deemed, necessary to assist CONSULTANT in the
performance of the Services. The appointment of consultants must
be approved, in advance, by CITY, in writing, and must remain
acceptable to CITY during the term of this Contract.
SECTION 4. DUTIES OF CITY
4.1 CITY will furnish or cause to be furnished the
services listed in Exhibit "~’ and such information regarding its
requirements applicable to the Project as may be reasonably
requested by CONSULTANT.
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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 tim4 schedule will not constitute a default
under this~Contract.
4.3 The city manager will represent CITY for all
purposes under this Contract. Tom Auzenne 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 Bruce Lesch, the Project Coordinator.
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.
4.5 Upon the acceptance of CONSULTANT’s bid by the
California Independent Service Operator ("ISO"), CITY must provide
all ISO and CONSULTANT required participant information and
executed LCP Agreements for all CITY customers listed in
CONSULTANT’s response to the ISO RFB no later than April i, 2001.
In the event CITY does not enter into LCP Agreements with any
participants, CITY must certify that such participants meet the
Demand Reduction Program ("Program") eligibility requirements set
forth in the ISO Demand Relief Agreement set forth in Attachment E.
SECTION 5.COMPENSATION
5.1 CITY will compensate CONSULTANT for the following
services and work:
5.1.1 CONSULTANT shall receive an amount not to
exceed $256,000 (Base-Service Fee) for the execution of a 20 MW,
two tier Load Control Program (as described in Exhibit ~A").
5.1.2 Four (4) equal monthly payments of $64,000
shall be paid to CONSULTANT payable within 30 days.of the receipt
of an invoice from CONSULTANT. The first invoice shall be
submitted by the CONSULTANT no earlier than June 30, 2001.
5.1.3 In the event the Load Control Program exceeds
20 MW, a Supplemental Fee will be paid to the CONSULTANT in the
amount of $2,000 for every 0.5 MW in excess of 20 MW rounded-up to
the nearest 0.5 MW. Supplemental Fees will be invoiced separately
from Base-Service Fees.
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5.1.4 CONSULTANT will forward to CITY all payments
received by CONSULTANT from the Independent System Operator (ISO)
earned through ISO DRP participation subject to all ISO DR.P
requirements. Payments will be made to the CITY within 15 days of
receipt of payment by CONSULTANT from ISO. ISO payment structure
is included in the ISO~.Demand Relief Agreement (Attachment E).
5.1.5 No Additional Services are contemplated to be
provided by CONSULTANT at the commencementof work, therefore, no
other compensation is provided for in.this Section 5.
5.1.6 The full payment of charges for extra work or
changes, or both, in the execution of the Project will be made,
provided such request for payment is initiated by CONSULTANT and
authorized, in writing, by the project manager. Payment will be
made within thirty (30) days of submission by CONSULTANT of a
statement, in triplicate, of itemized costs covering such work.or
changes, or both. Prior to commencing such extra work or changes,
or both, the parties will agree upon an estimated maximum cost for
such extra work or changes. CONSULTANT will not be paid for extra
work or changes, including, without limitation, any design work or
change order preparation, which is made necessary on account of
CONSULTANT’s errors, omissions, or oversights.
5.1.7 Direct personnel expense of employees assigned
to the execut±on 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:
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 Section 5, 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.
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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 P~oject 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
CONSULTANT agrees to protect, indemnify, defend and hold
harmless CITY, its Council members, officers, employees and agents,
from any and all demands, claims, or liability of any nature,
including death or injury to any person, property damage or any
other loss, caused by or. arising out of CONSULTANT’s, its
officers’agents’ consultants’,,or employees’ negligent acts,
errors, or omissions, or willful misconduct, or conduct for which
applicable law may impose strict liability on CONSULTANT in the
performance of or failure to perform its obligations under this
Contract.
SECTION 8. WAIVERS
8.1 The waiver by either party of any breach or
violation of any covenant, term, condition or provision of this
Contract or of the provisions of any ordinance or law will not be
deemed Ito 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,
010619 syn 0071989
7
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 "B",
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 CITYas an
additional insured under such policies as required above.
9.3 Certificates of such insurance, preferably on the
forms provided by CITY, will be filed with CITY concurrently with
the execution of this Contract. The certificates will be subject
to the approval of CITY’s risk manager and will contain an
endorsement stating that the insurance is primary coverage and will
not be canceled or altered by the insurer except after filing with
the CITY’s .city clerk thirty (30) days prior written notice of such
cancellation or alteration, and that the City of Palo Alto is named
as an 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
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damage, injury, or loss arising after the Contract is~terminated or
the term has.expired.
SECTION i0. WORKERS’ COMPENSATION
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 or suspend
its execution of the Project by giving thirty (30) days prior
written notice thereof to CITY, but only in the event of a
substantial failure of performance by CITY or in the event CITY
indefinitely withholds or withdraws its request for the initiation
or continuation of Basic Services or the execution of the Project.
11.3 Upon such suspension or t.ermination 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, anychange 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 defauit by CONSULTANT, CITY
will be obligated to compensate CONSULTANT only for that portion of
CONSULTANT’s services which are of direct and immediate benefit to
CITY, as such determination may be made by the city manager in the
reasonable exercise of her discretion.
11.4 In the event of termination of this Contract or
suspension of work on the Project by CITY where CONSULTANT is not
in default, CONSULTANT will receive compensation as follows:
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9
Ii.4~I 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 payab%e 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 immediatelyany 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.
SECTION 12. ASSIGNMENT
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:
//
//
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10
To CITY:Office of the City Clerk
City of Palo Alto
Post Office Box 10250
Palo Alto, CA 94303
To CONSULTANT: Attention of.the project director
at the address of CONSULTANT recited above
SECTION 14.CONFLICT OF INTEREST
14,1 In accepting this Contract, CONSULTANT covenants
that it presently has no interest, and 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.
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 "C".
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,
010619 syn 0071989 11
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. NON-COMPETITION AGREEMENT
CONSULTANT hereby agrees that it and its assigns shall
not solicit any of CITY’s customers for the purposes of selling or
supplying electrical energy fQr a period of two years from the date
of the termination of this Agreement.
SECTION 17. CONFIDENTIALITY
CONSULTANT shall keep confidential all .reports,
information and data received, prepared or assembled pursuant to
performance hereunder and that NCPA or CITY clearly marks as
confidential. Such information shall not be made available to any
person, firm, corporation or entity (except as required by Article
12.2(vii) of the ISO Agreement) without the prior written consent
of NCPA or CITY. Upon termination of this Agreement, CONSULTANT
shall destroy all CITY data as soon as any ISO Agreement imposed
data retention requirements have been met, and shall represent and
warrant to CITY in writing thereafter that’ it has destroyed such
data.
SECTION 18.MISCELLANEOUS PROVISIONS
18.1 CONSULTANT represents and warrants that it has
knowledge of the requirements of the federal Americans with
Disabilities Act of 1990, and the Government Code and the Health
and Safety Code of the State of California, relating to access to
public buildings and accommodations for disabled persons, and
relating to facilities for disabled persons. CONSULTANT will
comply with or ensure by its advice that compliance with such
provisions will be effected pursuant, to the terms of this Contract.
18.2 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
010619 syn 0071989
12
Arbitration Association, and judgment upon the award rendered by
the Arbitrators may be entered in any court having .jurisdiction
thereof.
18.3 This Contract will be governed by the laws of the
State of California, excluding its conflicts of law.
18.4 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.
18.5 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.
18.6 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.
18.7 All provisions of this .Contract, whether covenants
or conditions, will be deemed to be both covenants and conditions.
18.8 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.
18.9 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.
18.10 All exhibits referred to in this Contract and any
addenda, appendices, attachments, and schedules which, from time
to time, may be referred toin any duly executed amendment hereto
are by such reference incorporated~in this Contract and will be
deemed to be a part of this Contract.
18.11 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.
18.12 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 f±scal
010619 syn 0071989
13.
year in the event that funds are only appropriated for a portion of
the fiscal year and funds for this Contract are no longer
available. This Section 16.12 will take precedence in the event of
a conflict with any other covenant, term, condition, or provision
of this Contract.
IN WITNESS WHEREOF, the parties hereto have by their duly
auhhorized representatives executed this Contract on the date first
above written.
APPROVED AS TO FORM:CITY OF PALO ALTO
Senior Asst. City Attorney
APPROVED:
Assistant City Manager
PLANERGY SERVICES, INC.
Director of Utilities
Director of Administrative
Services
By:
Name:
Title:
By:
Name:
Title:
Taxpayer Identification No.
Risk Manager
Attachments:
EXHIBIT "A":
EXHIBIT "B":
EXHIBIT "C":
(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
INSURANCE
NONDISCRIMINATION COMPLIANCE FORM
010619 syn 0071989
14
STATE OF )
) SS.
COUNTY OF )
On , 2001, before me, the unders±gned, 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
010619 syn 0071989
15
CERTIFICATE OF ACKNOWLEDGMENT
(Civil Code 1189)
STATE OF )
) SS.
COUNTY OF )
On , 2001, before me, the undersigned, a
Notary Public in andfor 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
010619 syn 0071989
16
Attachment A
Scope of Work, Team, and Schedule - Planergy Services, Inc.
Load Curtailment Services for City of Palo Alto
OVERVIEW
The City of Palo Alto Utilities (CPAU) wishes to implement a customer load management
program for summer 2001. The purpose of the load management program is to eliminate the need
for rolling blackouts during the summer 2001 period (June 1 to September 30, 2001). Planergy
Services, Inc. (Planergy) has experience with developing and managing similar load management
programs and will assist CPAU to.design, test, implement and manage the load management
program.
The Palo Alto program will incorporate two distinct parts.
Tier 1 will occur coincident with the California Independent System Operator ("ISO")
Demand Reduction (Load) program (during iSO Stage 2 emergencies). Tier 1 will
require selected CPAU customers to reduce load without using back up generators
(BUGs).
Tier 2 will occur coincident with the ISO Stage 3 emergencies. Tier 2 will require
selected CPAU customers to reduce load by using a combination of BUGs and additional
load reduction measures.
Planergy will assist CPAU with the following:
¯
¯
¯
¯
¯
¯
¯
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Program design
Marketing Plan Development and Assistance.
Submission of demand response bid to CA ISO
Technical Support to Candidate Customers
Monitoring and Verification and Metering System Platform
Equipment Verification and Testing
System Dispatch
System Operation
Data Management and Program Accounting
Page 1 of 7
Attachment A
SCOPE OF WORK TASKS TO BE PERFORMED BY PLANERGY INTERNATIONAL
TASK 1 Program Design
Co
D°
Planergy will work with CPAU to design Tier 1 such that it adheres to the ISO requirements
for the Demand Reduction Program.
Planergy will assist CPAU to determine that CPAU participant customers’ loads are eligible
to be used as demand reduction load ("DR Load") under the ISO Demand Reduction
Program ("DRP"). The criterion for load participating is included in the ISO Demand
Reduction Program materials. The ISO may change these criterion and CPAU and Planergy
will work together to adapt the CPAU program as required.
In addition to the ISO participation requirements, CPAU will have specific customer
participation requirements. Planergy will work with CPAU to define and finalize these
participation requirements. For example, a possible requirement might be: customers must
have curtailable load of 300 kW or greater.
Planergy will work with CPAU to design Tier 2 of the Load Curtailment Program such that it
meets the ISO and NCPA requirements for Stage 3 emergency response.
The LCP (Tier 1 and 2) will be administered through the Planergy control center in Austin,
TX.
TASK 2 Marketing Plan Development and Assistance
Planergy will develop marketing materials and prepare CPAU and Planergy staffs to market the
program to customers of CPAU. These activities will include:
A.Support in conducting customer orientation workshops to introduce the LCP to interested
customers.
B.Training for CPAU customer representatives on the design and operation of the Tier 1 and
Tier 2 LCP.
Develop and supply to CPAU LCP information and marketing packages for prospective
customer participants that will include program description, fi’equently asked question sheet,
draft Customer Demand Reduction Agreement and other appropriate materials to support the
LCP marketing outreach efforts.
Planergy sales support to assist CPAU customer representatives in explaining the LCP and
finalizing the Host Customer Demand Reduction Agreement with prospective participants.
Page 2 of 7
Attachment A
Technical support’for candidate customers seeking to assess the magnitude of potential
curtailable loads. Responsibilities for this task include:
Planergy will provide all personnel, and access to web-based software to accomplish the
curtailment program. The customer must have an interval meter with a communications
modem, and a dedicated phone line at the meter. Planergy will operate the program from
that point.
Planergy will perform either walk-through or full-scale audits, and provide the City with
copies of all informational materials, reports or recommendations presented to the
Customer. The scope of audits may range from phone consultations with review of field
monitoring results, recommendations, review of equipment plans, site walk-through, to
detailed engineering analyses of electrical systems.
Planergy will provide the Customer with reasonable assistance with equipment
specifications for electrical system solutions including metering, controls back-up
generation, transfer switches and other enhancements..
4.At the City’s discretion, Planergy will provide short-term monitoring and performance
evaluations of Customer’s electrical distribution system, switchgear and controls.
Assisting customers to gain any available financing assistance to implement load
management strategies.
G. Telephone contact numbers for prospective participants to call for needed LCP information.
TASK 3 Submission of Demand Response Bid to CA ISO
Planergy will prepare and submit on behalf of CPAU, NCPA and other participating member
utilities a bid in response to the California Independent System Operator Request for Bids to
Provide Demand Relief for Summer 2001, dated December 4, 2000.
TASK 4 Monitoring and Verification and Metering System Platform
Ao Planergy will utilize its own PowerLinkWEB hardware and software system that includes
remote reading of the customers existing Interval Data Recorder (IDR) meter and phone line
(or cellular) communications to obtain near real-time curtailment data.
Page 3 of 7
Attachment A
Planergy will provide the participating customers and CPAU with secure Internet delivery of
this 15-minute interval meter data load curtailment information in near real-time utilizing
software from Silicon Energy Inc.
C0 Multiple meters can be aggregated on a per customer and program wide basis. All data will
be available only for viewing on a customer-segmented and password-protected basis and
viewable by CPAU on an individual meter basis or as a total aggregate of curtailment
performance.
Data will be recorded and transmitted to a server located in Planergy’s Austin, TX control
and dispatch center. It is here that all meter data will be processed, CPAU earnings
calculated, and invoices and payment amounts issued.
E.Curtailment performance by each participant will be monitored from the control center and
pro-actively managed by Planergy’s Control Center staff.
F°Baselines for customer curtailment performance determination will be automatically
calculated based on ISO approved methodology and using the historical meterdata that
Planergy will acquire and post to the Intemet on a daily basis.
A TARGET LINE will be posted graphically and will be determined by subtracting the
contracted load from the baseline for each curtailment event. The TARGETLINE will serve
as an easy guide for customers, CPAU, and Planergy to assess curtailment compliance.
TASK 5: Equipment Verification and Testing
Planergy will test the meter data acquisition and Internet delivery of the PowerLinkWEB
system on each meter. CPAU, NCPA, and authorized participating customers will be able to
access their own data via a secure Intemet site.
Customers will be required to participate in a short test curtailment for certification of load
availability. Planergy will also perform a meter data aggregation and submittal. This test will
be performed between May 1 and May 10, 2001
Planergy will assist NCPA, CPAU and the customer to rectify any deficiencies identified in
the test.
Planergy will maintain a staff of Customer Service Representatives available through a toil-
free number (877-779-0995) to support customers with Intemet browser setup and data
viewing guidance and questions. The staff will be available during the hours of 7 AM to
7PM PDT.
Page 4 of 7
Attachment A
TASK6 System Dispatch
Planergy will manage all of the communication with the participating customers. The exact
details of the conununication plan will be finalized as part of the overall program design and
testing. The general communication structure will include the following:
A.Tier 1: As required by the ISO, Planergy will dispatch each curtailment that is called by the
ISO. Planergy will notify the participants and CPAU of an ISO/Planergy curtailmentby use
of alphanumeric electronic page (e-page) to pagers supplied by the customer, electronic mail
(e-mail), voice telephone, and facsimile (fax) used as alternate notification as may be
necessary. Planergy also operates and may utilize an automated tele-dialing system with
custom message and acknowledgement capability. Additionally, Planergy’s toll-free number
and curtailment staffwill be available for customer inquiries and pager callbacks.
B. Planergy will notify all Tier 1 and Tier 2 participants when an ISO Stage 2b (ISO curtailment
ofUDC interruptible loads), 2c (ISO curtailment under the DRP and 2d (ISO DR Bug
curtailment called.
C.NCPA will provide the services as the MDAS certified Scheduling Coordinator (SC) for the
participants.
Do It will be Planergy’s responsibility to verify that all affected facilities are informed of the
details of the ISO curtailment order. Planergy will contact each participant to reduce the
metered demand at their facility (facilities) by the contracted amount within thirty-five (35)
minutes for DR Load of issuance of the curtailment order by the ISO. The time stamp of the
ISO e-mail to Planergy will be used in verification of performance.
Tier 2 BUG program. CPAU will notify Planergy 20 minutes prior to declaring a Stage 3 event
to curtail all Tier 2 customers.
Task 7: System Operation
A.During each curtailment event, Planergy shall monitor the performance of each participating
customer (utilizing 15 minute meter reading) in reducing its load in accordance with the
Customer Demand Reduction Agreement attached hereto as Appendix C.
B.Planergy shall contact non or under performing participating customers in the event their load
curtailment is not meeting the agreed upon levels.
Co Meter Data will be posted in near real-time during curtailment events along with a calculated
TARGET LINE for the customer’s load which will show compliance with their contracted
load when at or below this line. This TARGET LINE will be determined using the ISO
baseline calculation methodology.
Page 5 of 7
Attachment A
Do Customer’s meter data will be polled and posted to the Intemet on a daily basis (in table and
graphical format) during the LCP. During curtailments, Planergy will poll all meters every 15
minutes and immediately post the data to the web site to be available to CPAU and the
customer.
E.Planergy will support and train all customers and CPAU staff on the use of the
PowerLinkWEB Internet viewing sotlware on a continuing basis.
Task 8: Data Management and Program Accounting
A.Data will be recorded and transmitted to a server located in Planergy’s Austin, TX control
and dispatch center.
Bo Planergy will process all of the data required for the program and will provide this data to the
customer, NCPA or CPAU as required. CPAU will receive a copy of all data and will have
complete access to the data via the web site or other electronic format.
C. The data to be processed will include at least the following:
Individual customer curtailment information
Aggregated customer curtailment information
Do Reports, Billing and Payments. Planergy will submit a Settlement Quality Meter Data
("SQMD") Demand Reduction ("DR") meter data file report to the ISO (separate from
SQMD submitted by SC), from which the curtailed load is derived for purposes of the
ISO Agreement~ Planergy’s data will only be used to calculate the Planergy’s
performance for both the as-delivered DR Energy payment and the DR reservation
payment, as set forth in the ISO Agreement. Payments will be settled through NCPA, as
SC for the participating loads, according to the ISO’s normal billing and settlement cycle.
The ISO will issue a performance reports to Planergy at the time that Preliminary
Settlement Statements are issued for the trade date of each curtailment. The report will
include the hourly demand for each hour from 1000 hours through 2000 hours for the
trade date, the expected demand and each day included in the expected demand. The
report will also include such information as the date, effective times of the curtailment
order, the reserved demand, the hourly performance, as-delivered energy payments and
any payments due as a result of additional voluntary curtailments, if any.
Page 6 of 7
Attachment A
A monthly report including the average monthly performance and total net payment will.
be provided at the same time as monthly preliminary and final invoicing. Planergy will
issue a check for their incentive payment within fifteen v~orking days of receipt of
payment from the SC. In instances where remote meter data may be missing or
questionable due to recording or transmission problems, Planergy may request and use of
CPAU’s meter data.
DELIVERABLES & MEETINGS
Planergy will work with CPAU and NCPA to organize all of the required meetings, conference
calls, site visits that may be required to get the load reduction program tested and operating.
PLANERGY INTERNATIONAL PROJECT TEAM
For the duration of the project, Planergy will maintain the following assignments:
Principal In Charge
Project Manager/Engineer
Contracts and Compliance
Project Engineers
Tom Doughty
Dave Slifer
Dave Base
George Bell, Brian Heard
The above named team members will be supported by Planergy’s additional engineering and
operations staff as needed in completing the scope of work.
PROJECT SCHEDULE
Planergy shall complete the scope of work within a time period sufficient to meet the May 2001
test date and the June 1 2001 operation date.
Page 7 of 7