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HomeMy WebLinkAbout2001-08-06 City Council (19)City of Palo Alto City Manager’s Report TO:HONORABLE CITY COUNCIL 11 FROM: DATE: SUBJECT: CITY MANAGER DEPARTMENT: UTILITIES AUGUST 6, 2001 CMR:320:01 APPROVAL OF CONTRACTS WITH NAVIGANT CONSULTING FOR ELECTRIC REGULATORY AND TECHNICAL CONSULTING AND GAS REGULATORY AND TECH~CAL CONSULTING FOR $180,000 FOR FISCAL YEAR 2001-02 WITH OPTIONS FOR $320,000 FOR FISCAL YEARS 2002-03 AND 2003-04 APPROVAL -OF A CONTRACT WITH INTERSTATE GAS SERVICES INCORPORATED, FOR GASREGULATORY AND TECHNICAL CONSULTING FOR $60,000FOR FISCAL YEAR 2001-02 WITH OPTIONS FOR $100,000 FORFISCAL YEARS 2002- 03 AND 2003.04 APPROVAL OF A CONTRACT WITH FLYNN AND ASSOCIATES FOR ELECTRIC REGULATORY AND TECHNICAL CONSULTING FOR $150,000 FOR FISCAL YE. AR 2001-02 WITH OPTIONS FOR $280,000 FOR FISCAL YEARS 2002-03 AND 2003-04 RECOMMENDATION Staff recommends that Council: Approve and authorize the Mayor to execute the attached four contracts with Navigant Consulting. Inc., Interstate Gas Service Inc., and Flynn & Associates. CMR: 320:01 Page 1 of 6 The annual contract amounts for the electric and gas consultants are as follows: Consultant/Fund a) Navigant/Electric b) Navigant/Gas Navigant Subtotal c) Flynn & Assoc./Electric d) IGS/Gas FY01/02 FY02/03 FY03/04 $ 65,000 $ 65,000 $ 65,000 $115,000 $115,000 $ 75,000 $180,000 $180,000 $140,000 $150,000 $150,000 "$130,000 $ 60,000 $ 60,000 $ 40,000 Authorize the City Manager or his designee to negotiate and execute one or more change orders to the contracts with the above three consultants for related, additional but unforeseen work, which may develop during the project, the total value of which shall not exceed $109,000 or 10 % over the three year period. BACKGROUND For more than a decade the City has retained consultants to assist staff in the electric and gas regulatory and technical consulting areas. In fiscal year 2000-01, the City spent approximately $135,000 on gas consulting and $180,000 on electric consulting. The gas consultants provided assistance to the City in preparing for the Pacific Gas and Electric’s (PG&E) Gas Accord II negotiation prior to it being filed, evaluating new gas suppliers for the City, analyzing PG&E’s existing pipeline infrastructure, and monitoring and influencing regulatory changes at California Public Utility Commission (CPUC) that were favorable to the City. The electric regulatory consultant provided assistance to the City in the area of transmission planning and influenced regulatory changes related to the continuing restructuring of the electricity industry in California. DISCUSSION Description of Services During the next three years, proceedings related to gas matters e.g. renegotiations of the Gas Accord, interstate and intrastate natural gas infrastructure needs will be heard at CPUC, Califomia Energy Commission (CEC) and Federal Energy Regulatory Commission (FERC), and will continue to be a matter of concern to the City. In addition CMR: 320:01 Page 2 of 6 to the above, the City will have to evaluate its future gas transportation and storage needs and may have to acquire additional assets to provide reliable service for its customers. 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 need. 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. Navigant Consulting will provide the following services: Monitor and analyze CPUC and CEC proceeding and represent the City’s interest Maintain an ongoing presence at CPUC to represent the City’s interest Work with City to establish regulatory objectives, goals and priorities Assist City in PG&E’s Gas Accord II negotiation and / or proceeding Assist City in PG&E’s Biennial Cost Allocation Proceeding (BCAP) process Perform natural gas related tasks as requested by City staff (this would include any unforeseen regulatory proceeding(s) that may affect the City ). Interstate Gas Service Inc. will provide the following services Perform backup service for gas scheduling and gas balancing or / and trading Manage Palo Alto’s gas pool for the Direct Access (DA) Program Assist City staff in developing plans for the City to mitigate future curtailments on PG&E system Perform natural gas related tasks as requested by City staff During the next three years, electric regulatory proceedings will continue in several major areas which might affect the City of Palo Alto and its consumers, such as transmission access charge (TAC) settlement and implementation, congestion management reform (CMR), comprehensive market redesign and market power mitigation, long-term grid planning, new facilities interconnection policy, and regional transmission organization (RTO) filing by the California Independent System Operator (CAISO) and others. The City also needs to develop long-term solutions to its transmission needs, as the interconnection agreements are likely to expire during this period. The other overriding concern is that of improving reliability and electricity supply in the Bay Area by advocating the need for additional transmission at the ISO stakeholder meetings and at the state and federal levels, and joining other municipal utilities in the Bay Area in planning and developing new transmission and generation projects. CMR: 320:01 Page 3 of 6 Consultant assistance is needed to supplement staff resources in conducting technical studies to support transmission planning, and providing electric regulatory services in these proceedings. Consultants’ experience in working with agencies such as CAISO, FERC, California Public Utility Commission (CPUC), and CEC and local municipal utilities would be especially useful for the City. In general, Flynn & Associates will provide strategic consulting in various regulatory forums whereas Navigant Inc. will provide detailed technical backup to improve advocacy at these forums. Flynn & Associates will provide the following services: -Monitor and analyze ISO, FERC, CEC, and PG&E (grid planning) proceedings -Assist City regulatory staff to develop strategies and positions to deal with critical issues related to these proceedings Assist City in its effort to improve reliability in the Greater Bay Area by joining with other municipal utilities, if feasible, and advocating the need for higher transmission planning standards and building of additional transmission facilities Assist City in developing long-term solutions for its transmission needs especially needed after the existing interconnection agreements expire (this would include any unforeseen regulatory proceeding(s) that may affect the City). Navigant Inc. will provide the following services in the electric regulatory area: Conduct transmission planing studies in the Greater Bay Area in collaboration with Flynn & Associates to develop transmission projects that would improve the reliability for Palo Alto and also identify long-term solutions for City’s transmission needs. Provide other assistance, on an as needed basis, in the electric regulatory area, specifically, to evaluate the impact on Palo Alto of regulatory proceedings related to transmission access charges, congestion management reform, and grid management charges ( this would include any unforeseen regulatory proceeding(s) that may affect the City) Selection Process On April 16, 2001, a Request for Proposal (RFP) was sent to eighteen consulting firms, which were known to offer relevant services. Firms were given twenty-two days to respond. The RFP allowed consultants to respond to any or all of the three major CMR: 320:01 Page 4 of 6 sections of the scope of work. These three sections were: electric legislative and. regulatory; gas legislative and regulatory; and market assessment. 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 five firms submitted proposals responding to all or parts of the scope of work. A selection advisory committee consisting of the Assistant Director of Resource Management, four members from the Supply Resources Group and two members of the Purchasing Department reviewed the proposals. Four firms were invited to participate in oral interviews between May 21, 2001, and June 6, 2001. The committee carefully reviewed each firm’s qualifications and submittal in response to the RFP relative to the criteria outlined in the RFP. Navigant Consulting, Inc, Interstate Gas Service Inc, and Flynn & Associates 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. The City Attorney has determined that the consultants are exempt from complying with the financial disclosure provisions of the City’s conflict of interest code, because the consultants’ range of duties and services to be provided under the contract are limited in scope or are primarily administrative in nature. RESOURCE IMPACT Funds for first two years of this project are included in the budget. The total budget for work to be performed for the two years is $430,000 from the Electric Fund and $350,000 from the Gas Fund. Funds for subsequent year will be subject to appropriation of funds and/or renewal of these contracts during the fiscal year 2003-04 budget process. POLICY IMPLICATIONS This recommendation is consistent with the Council approved Utilities Strategic Plan to obtain reliable electric and natural gas supplies. ENVIRONMENTAL REVIEW These services do not constitute a project for the purposes of the California Environmental Quality Act CMR: 320:01 Page 5 of 6 ATTACHMENTS A." B: C: Navigant Consulting. Inc. Contract s Interstate Gas Service Inc. Contract Flynn & Associates Contract PREPARED BY:Raveen Maan, Resource Planner Shishir Mukherjee, Resource Planner DEPARTMENT HEAD: of Utilities CITY MANAGER APPROVAL: HARRISON Assistant City Manager CMR: 320:01 Page 6 of 6 CONTRACT NO. BETWEEN THE CITY OF PALO ALTO AND NAVIGANT CONSULTING, 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 NAVIGANT CONSULTING,INC., a corporation organized under the laws of the State ofDelaware, 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 ("Deliverab!es") (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 thetime schedule for any period of time. This provision will not preclude the recovery of damages for delay caused by CONSULTANT. 010724 sm 0052781 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 wil! 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 ali 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. // 010724 sm 0052781 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 6r 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 emp!oyers or principals to be employed as consultants. 3.2 In reliance on the representations and warranties set forth in this Contract, CITY hires CONSULTANT to execute, and CONSULTANT covenants and agrees that it will execute or cause to be executed, the Project. 3.3 CONSULTANT will assign 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 tothe 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 loca! 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 010724 sra 0052781 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, CONSULTANTwill 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 emp!oyee or consultant of CONSULTANT fails or refuses to carry outthe provisions of this Contract or appears to be incompetent orto act in a disorderly or improper manner, the employeeor 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; 010724 sm 0052781 4 3.10.2 Incurring travel and subsistence expenses for CONSULTANT and its staff beyond those normallyrequired 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 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. Garish Balachandran, Interim 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: 010724 sm 0052781 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 Fifteen Thousand Dollars ($115,000) for fiscal year 2001-2002. CITY will exercise the option to renew the contract in the amount of One Hundred Fifteen Thousand Dollars ($115,000) for a second fiscal year (2002-2003) and Seventy Five Thousand Dollars ($75,000) for a third fiscal year (2003-2004) 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 Three Hundred Five Thousand Dollars ($305,000). 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 wil! 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. Prier 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. 5.1.3 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 010724 sm 0052781 The schedule of payments will be made as follows: 6 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 al! 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 wil! 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 CONSUiTANT 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 010724 sm 0052781 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 Ratinq 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 wil! obtain and maintain, in full force and effect during the term of this Contract, identical insurance coverage, naming CITY as an additional insured under such policies as required above. 9.3 Certificates of such insurance, preferably on the forms provided by CITY, will be filed with CITY concurrently with the execution of this Contract. The certificates will be subject to the approval of CITY’s risk manager and will contain an endorsement stating that the insurance is primary coverage 010724 sm 0052781 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 liabilfty, 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 fulfil! the indemnification provisions of this Contract. Notwithstanding the policy or policies of insurance, CONSULTANT wil! 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 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. 010724 sm 0052781 9 11.3 Upon such suspension or termination by CITY, CONSULTANT will be compensated for the Basic Services and Additional Services performed and De!iverables ~eceived 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 wil! 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. 010724 sm 0052781 ! 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 Contrac~ 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. 010724 sm 0052781 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 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 ~’. 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 findi.ng of the State of California Fair Employment Practices Commission or the equivalent federa! 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 010724 sm 0052781 .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 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 ofthis 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 wil! 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 010724 sm 0052781 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 fisca! 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. // // // // // // // // // // // // // // // // 010724 sm 0052781 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 PALO ALTO City Clerk APPROVED AS TO FORM: City Attorney APPROVED: Assistant City Manager Director of Administrative Services Director of Utilities Risk Manager Attachments: EXHIBIT "~’: EXHIBIT "B": EXHIBIT "C": EXHIBIT "~’: Mayor NAVIGANT CONSULTING, INC. By: Name: Title: By: Name: Title: Taxpayer Identification No. (Compliance with Corp. Code § 313 is required if the entity on whose behalf this contract is signed is a corporation. In the alternative, a certified corporate resolution attesting to the signatory authority of the individuals signing in their respective capacities is acceptable) SCOPE OF PROJECT &TIME SCHEDULE RATE SCHEDULE INSURANCE NONDISCRIMINATION COMPLIANCE FORM 010724 sm 0052781 1 5 CERTIFICATE OF ACKNOWLEDGMENT (Civil Code § 1189) STATE OF ) ) SSo COUNTY OF ) On , 2001, 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 010724 sm 0052781 1 6 CERTIFICATE OF ACKNOWLEDGMENT (Civil Code § 1189) STATE OF ) ) SS. COUNTY OF ) On , 2001, before me, the undersigned, a Notary Public in and for said Countyand 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 010724 srn 0052781 17 EX]:tIBIT A SUMMARY OF SERVICES Navigant shah 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 135231 .Services and support shall be comprised of the following five task categories. TASK 1: Monitor and analyze CPUC, FERC, CEC and other applicable regulatory proceeding and represent the City’s interests. In this task Navigant shall monitor and analyze orders, decisions, and filings by and before the CPUC, the CEC and the FERC for impact on the City. Consultant shall recommend courses of action to represent the interests in such proceedings, including, but not limited to, writing briefs and presenting testimony. TASK 2: Maintain an ongoing presence at CPUC to represent the City’s interest 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 City’s viewpoints and concerns on gas regulatory issues. Task 3: Assist City in PG&E’s Gas Accord rf negotiation and / or proceeding In this task, Navigant shall assist City staff in negotiation with PG&E for backbone transmission service, storage asset and other related issues for the period after the expiration of PG&E’s Gas Accord and/or representing the City in a CPUC proceeding. Task 4: Assist City in PG&E’s BCAP process In this task, Navigant shall assist City staff with analysis of PG&E ’s.local transmission rates. " Task 5: Provide the City with miscellaneous natural gas consulting services In this task, Navigant shall perform other natural gas related work as requested by City staff. SECTION 5 NAVIGANT CONSULTING, INC. 2001 GOVERNMENT RATES Professional and Support services, except for testimony, shall be billed rates: RATES at the following Executive Managing Director Senior Managing Director Managing Director Director Principal Senior Engagement Manager Senior Consultant Consultant Associate Analyst Office Services $ 325 per hour $295 per hour $245 per hour $230 per hour $210 per hour $195 per hour $180 per hour $155 per hour $135 per hour $110 per hour $ 55 per hour " The above rates shall be adjusted each year, commencing January 1, 2002, to reflect the change in rates officially established by Navigant Consulting. 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 Navigant Consulting. 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 Navigant Consulting for any applicable sales tax imposed on services rendered by Navigant Consulting to Client. Aon Ri=k Servi==s, Ino, of Illinois 12:} NoI"~ W~¢ker Dr~veChicago IL 6~06 615 N. ~abash Avenue Chl~go, IL 60811 USA I’-’. ~ 05/04/01 THIS CERTIFICAT~ IS ISSUED ~ A MAT[ER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THI= CERTIFICAT~ HOLDER. THIS CERTIFICATE DOES NOT ~MEND, E~’F_ND OR ALTER THE COVERAGE .~FFORDED BY THE POLICIES BE.L_OW. COMPANIES AFFORDING COVERAGE - COMPANY COMPANY C American Motorists Insurance Company Illinois National Insurance Co ArneFican Manufacturer~ Mutual Ins Co, THIS IS TO I:F.RTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW H~VE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD IND~ATEO, klOTWITHEI’ANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CQNTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIF!r.ATE MAY BE ISSUED OR M~Y PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THETERMS, EXCLUSIONS AND CONDWE)NS OF SUCH POLICIES, LIMES SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. aMG~11450-O0 =ackaae PoIIcyfGL & PROP~ F3RDO39141-(1o Bu~nes~ Auto Coverage BETd05363 Umbrella LJabil~y (Le~d) Workers Compensation ]’Obl Cy £1r’R: C’I1yE 17_/31/00 12/’31/00 12/31/00 12/31/00 12/31/01 IZ/31/01 12/’30,/01 12/31/01 BODILY IN,JU l~ ( P~" per=on) BODILY INJURY (Per ~=;]den~ PROPERTT DAMAGE v~ STATU- EL EACH ACC;1DENT $2~o00,000 S2,000,000 $1,000,000 $1,000,000 $50D~000 $10,000 $1,000,000 $I0,000,000 $10,000,0~0 D~’~HiFT~ON OF OPEPJ~13ONS,I.0C~,TIONSNE],f]CLES/SpS¢IAL ITEMS Project: Cl~y of Pale Alto. All operations of the insured, The City o~ Pal0 .=Jto, its officers, agents, and employees am Additional lnsureds forGeneral Liability, SHOULD AN~ OF THE A~OVE DESCRIBED POLICIES BE C~,NCL~J.F.D BEFORE THE City of Pale AI~EXPIATION DATE ~EREOF, ~E ISSUING COMP~ ~ ENO~VORTO ~L A~ Loft Guen~er ~o DATe ~N NO~CE TO ~E CE~FI~ HOLDER N~D 3100 ~endal Ddve n~ FAILURE TO ~ SUCH NO~CE S~LL IMPOSE NO OBLIQA~ON OR ~MI~ ~00 OF ~NY ~D UPON ~E COMPly. if5 ~G~T8 OR REPRESE~A~. Sa~mento CA 95670 USA *~oR=EO REPRESENTATNE ~. ~ :e~fl~ No.:2q0000319570 Holder Identlflet~ ............-~’-- TOTRL P,02 PART il - P.ROPOSER INFORMATION L - SECTION 300A proposer’s Designated Contact Name: Ronald G. Oechsler T~e: P~incipal Phone: 916-852=130~ ,Fa~; 916-852-1073 The firm and Individuals listed below, ~-~ ~at ~ey donot d~lminate in ~plo~ent wR~ r~e~s to age, ~¢e, ~Ior, ~Sgion. sex. nagonal odg~, an~sW, d~abili~, or s~u~i pref~en~; that ~hey are In ~mplian~ with all fede~l, state, and lo~’d~recUv~ and exe~tiw~ orders regarding nond~imina~on . emplo~L Pro~ser ~s requi~ to pin-de a ~~ ~ good s~ndln~ ~om ~e S~te of California w~ its,P~posal. ~e ~dersign~ he.by ag~ to. and accep~ ~e m~s and conditions ~ th{s Sign~ur~ (Must be ~s same signature(s) ~s wgi app~ on Con~): (Pdn~ ~e of sign=~) .(P~ ~ ~ signal} Cal~omia Co~Ho~ ~de Se~on 313 requires fwo ~o~ o~cem ~ The ~gnatum ~ F~ 0~ ~ be on~ of ~e [~lo~ng: Cha{~an of ~a B~; P~Mep~" or Assis~a~ Se~ Chef Finan~ O~ce~ ~r AsSfs~nt Tm~umr. In ~e ~tem~tive, a =o:porate msol~on orang to ~e signsto~ a~od~y of ~e individuals s~gning in ~e~r Or, CITY OF PALO ALTO RFP 135231 PAGE 3 OF 4 : CONTRACT NO. BETWEEN THE CITY OF PALO ALTO AND NAVIGANT CONSULTING, INC. FOR CONSULTING SERVICES This Contract No.is entered into by and between the CITY OF PALO ALTO, a chartered city and a municipa! corporation of the State of California ("CITY"), and NAVIGANT CONSULTING, INC., a corporation organized under the laws of the State of Delaware, with head office located at Chicago and offices !ocated 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 Con[ract, 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 ef 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. 010724 sm 0052780 SECTION 2.SCOPE OF PROJECT; C.HANGES & 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 entitledto 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 fol!ows: (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 wil! determine whether the Basic Services or the Additional Services, or both, will contribute minor or substantial benefit to the construction work. // 010724 sm 0052780 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 t.o execution of this Contract, a list of all individuals and the names of their employers or principals to be employed as consultants. 3.2 In reliance on the representations and warranties set forth in this Contract, CITY hires CONSULTANT to execute, and CONSULTANT covenants and agrees that it will execute or cause to be executed, the Project. 3.3 CONSULTANT will assign Maury Kruth as the project director to have supervisory responsibility for the performance, progress, and execution of the Project.Bryan Griess wil! be assigned as the project coordinator who will represent CONSULTANT during the day-to-day work on the Project. If circumstances or conditions subsequent tothe 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 loca! 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 010724 sm 0052780 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 additiona! copies and CITY will compensate CONSULTANT for its duplicating costs. 3.8 CONSULTANT will be responsible for employing or engaging al! 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 outthe provisions of this Contract or appears to be incompetent orto act in a disorderly or improper manner, the employeeor 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; 010724 sm 0052780 4 3.10.2 Incurring travel and subsistence expenses for CONSULTANT and its staff beyond those normallyrequired under the Basic Services; 3.10.3 Performing any other Additional Services that may be agreed upon by the parties subsequent to the execution of this Contract; and 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 submissfon 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. Garish Balachandran, Interim 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 Shishir Mukherjee, the 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: 010724 sm 0052780 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 Sixty Five Thousand Dollars ($65,000) for fiscal year 2001-2002. CITY will exercise the option to renew the contract in the amount of Sixty Five Thousand Dollars ($65,000) for a second fiscal year (2002-2003) and Sixty Five Thousand Dollars ($65,000) for a third fisca! year (2003-2004) 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 Ninety Five Thousand Dollars ($195,000). 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 commenclng such extra work or changes, or both, the parties wil! 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.~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: 010724 sm 0052780 6 5.2.! " 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 th~ 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 fina! 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 010724 sm 0052780 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 wil! 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, emp!oyer’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, identica! 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 010724 sm 0052780 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 resultof the Services performed under this Contract, including suchdamage, 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 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. 010724 sm 0052780 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 termfnated 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 ofservice 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. 010724 sm 0052780 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 wil! 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 fol!ows: 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. 010724 sm 0052780 1 1 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 "~’. 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] wil! 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 010724 sm 0052780 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 willbe 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 ofthis Contract may recover it.s 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, e£ther 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 ful! 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 010724 sm 0052780 ! 9 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 !onger available. This Section 16.12 w±l! take precedence in the event of a conflict with any other covenant, term, condition, or~provision of this Contract. II II /I II II II II II II II II II II II II II 010724 sm 0052780 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 PALO ALTO City Clerk APPROVED AS TO FORM: City Attorney APPROVED: Assistant City Manager Director of Administrative Services Director of Utilities Risk Manager Attachments: EXHIBIT "A": EXHIBIT "B": EXHIBIT "C": EXHIBIT "D": Mayor NAVIGANT.CONSULTING, INC. By: Name: Title: By: Name : Title: Taxpayer Identification No. (Compliance with Corp. Code § 313 is required if the entity on whose behalf this contract is signed is a corporation. In the alternative, a certified corporate resolution attesting to the signatory authority of the individuals signing in their respective capacities is acceptable) SCOPE OF PROJECT &TIME SCHEDULE RATE SCHEDULE INSURANCE NONDISCRIMINATION COMPLIANCE FORM 010724 sm 0052780 1 6 CERTIFICATE OF ACENOWLED~V~ENT (Civil Code § 1189) STATE OF ) )SS. COUNTY OF ) On , 2001, 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 010724 sm 0052780 ! 7 CERTIFICATE OF ACKNOWLEDGEMENT (Civil Code § 1189) STATE OF ) ) SS. COUNTY OF On , 2001, before me, the undersigned, a Notary Public in and for said Countyand 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 010724 sm 0052780 1 8 EXHIBIT A SUMMARY OF SERVICES Navigant Inc. will provide electric consulting services and regulatory support to the City of Palo alto as outlined in the City’s Request for proposal, Project Number 135231. Services and support will consist of the following two task categories: TASK 1: Conduct transmission planning studies to identify transmission projects that would improve the reliability in the region including Palo Alto. In this task, Navigant, Inc. will work in collaboration with Flynn & Associates to conduct computerized transmission planning studies in the Greater Bay Area to identify and develop transmission enhaneement projeets that would improve the reliability in the region. Such studies would also help in identifying long-term solutions for the City’s transmission needs. The transmission studies will include load flow and short circuit studies on an appropriate network defined to focus on the Bay Area. The output from this task will be the results of load flow studies and recommendations for transmission projects. TASK 2: Provide assistance to Palo Alto in analyzing other electric regulatory issues and conduct in-depth analysis on an as needed basis. In this task, Navigant, inc.. will conduct analysis of other electric regulatory issues on an as needed basis and advise city regulatory staff on specific actions to be taken for protecting City’s interests. The output from this task will be focused technical reports. SECTION 5 RATES NAVIGANT CONSULTING, INC. 2001 GOVERNMENT RATES Professional and support services, except for testimony, shall be billed at the following rates: Executive Managing Director Senior Managing Director Managing Director Director Principal Senior Engagement Manager Senior Consultant Consultant Associate Analyst Office Services $ 325 per hour $295 per hour $245 per hour $230 per hour $210 per hour $195 per hour $180 per hour $155 per hour $135 per hour $110 per hour $ 55 per hour. The above rates shall be adjusted each year, commencing January 1, 2002, to reflect the change in rates officially established by Navigant Consulting. 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 a}.~ates for such services as determined from time to time and officially established by Navaigant Consulting. 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 Navigant Consulting for any applicable sales tax imposed on services rendered by Navigant Consulting to Client. MIqY-la4-2882. 88: 53 , .- P. DUCER THIS CERTIFICATE 15 ISSUED ~ A MAWR OF INFORMATION Aon Risk Sewi~s, ~nc, o~lllnois ONLY AND CONFERS NO RIGHTS UPON THE CER~FI~ 123 No~ Wa~r D~e HOLDER. THIS CERTIFICATE DOES NOT ~MEND, ~D OR Chi~gc IL 606~S ALTER THE COVE~GE ~FFORDED BY THE PO~CIE COMPANIES AFFORDING COV~GE A Ameri~n Motorists Insu~nce Company JRED COMPANY Illinois National Insurance CoNavig=nt ~ul~ng, Inc.B 615 N. Wabash Avenue COMPANY Chl~go, IL 6~811 USA C Amedcan Manufa~re~ M~ual I~s COMPLY ’~S IS ~ ~RTI~ THAT ~ FOLLIES OF INSURA~E USTED B~OW ~VE BE~N ISSU~ TO TR~ INSURED N~ ABOVE FOR ~E POLICY PERIOD ~D~ATED, NO~I~A~G ANY REQUR~E~, T~ OR ~ND~ION OF A~ ~NT~CT OR OT~R ~CUM~T ~TH RESPE~ TO ~H ;E~IFI~TE MA~ BE ~$UED OR ~ PERTAIN, ~E INSUR~ A~OR~D BY T~ FOWCIES DESCRIBED HEREIN tS SU~E~ TO ~ ~ETER~, ~CLUSIONS ~D C0~W~-OF SU~ POLICIES, L~WS S~ MAY HA~ BEEN REDUCED BY PAID JTOM OBILE LI~ILI’I~ ALL OWNED AUTos 6CHEDULED AUTOS HIRED AUTOS NON-OWNED aUTos tUM.BRE!J~ FORM OTHER TH~ UMBRELI~ FoRM 3MGa’1145o-o0 Packace PolIcy(GL & PROP~ F3RD039141-00 Bu.~ness Auto Coveraae ~E740S~ UmiOmlla LJ=~ilffy 3CL4633S4.0o Workers Compensa~on l~bl CY EFT£ ~’IV£ 12/31/00 12/31/00 " 12/31/00 12/31/00 POL 1 CY £ XI’I ~..~,TI Otq 12/31101 12/31/01 12/30/01 12/31/01 GENERAL AGGREGATE PRODUCTS - COMP/OP ~*GG PF-.RSONAL & ADV INJURY E~CH OCCURRENCE FIRE DA,MAGE(M’~, one fire) MED E.ZP ~,~v ar~ person) COMBINED SINGLE LIMIT E2IO00,000 5"2,000,000 $1,000,000 sl,oooiooo $5O0.0OO $1o,oo0 $1,0o0,o00 BODILY IN JU~’t’ {Per ~l~en~ PROPER~ D~GE AUTO ONLY - EA ACCIDENT AGGREGAT~ EACH OCCURRENCE AGGREC~TE X I "’V~ STATU,. EL DISE~SE.E.& EEMPLOYEB $1o,000,000 $1o~ooo,oo0 $1,000,000 $1,ooo,o0o $1 PTION OF OPERJ~TION.’~iI..OC~,TIONSNEHICLES/$pE~;IAL ITEM5 ’reject: City of Pale Alto.. All operations of the insured, The City of Pale Alto, its o~ficars, agents, and employees are Additional Insured$ for Liability. City of Pale Alto Attn: Lad Guenther 3100 Zinfendal Drive Suite fl00 Sacramento CA 95670 USA at~ No:2t0000319570 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CJ~NCELLED BEFORE ~PI~ON DATE ~EREOF. ~E ISSUING COMP~ ~LL END~VORTO ~L 30 DAY~ ~N NO~CE TO THE CER~FI~TE HOLDER N~ED TO ~E ~. B~ FAILURE TO ~rL SUCH NO~CE S~LL IMPOSE NO OBLIGATION OR ~I~ OF ~NY KI~ UPON ~E COMPLY, ~5 ~GENT~ OR REPRE~E~A~5. Holder Identifier: TOTRL P. 02 p~RT ii - P, ROPOSER INFORM~.TION L ~." - SECTION 300A A~denda Our~g the propose! process "=ham may bechanges to the proposal documents, which u~ould ~’egu~re an iSsL~nC¢ of an addendum or addenda- City discla|ms any and all liability for loss, or damage lo any proposer who does not r~cel ,v~ any adderldum issued by City in connecl:ion with I~is RFP. A~y Proposer in submitting a Proposal is deemed to waTve any and all Clakns and demands Proposer may h, ave a.gainst City on account o1 the fagur~ of delivery of any such addendum to Proposer. Arty and all addenda ~ssued by City shall be.deemed included in this RFP, and the provisions and instructions tPierein r~n~ined sh~ll b~ incorpor-=~t~ to any Proposal submitted by ProposP_r. i To ~ssure,that all Proposers have received each addendum. ~e following ackn.ow~eclgme~ and sign-off is requital Failura. to acknowledge rmceipt of an aOdendumJadd .enda may be considered a=;llT~ularity in the Proposal: Addendum number(s) received: [~I; [] 2: [] 3: ,J’-] 4: [] 5; [] 6; [] 7; [] ~; . [] 9 [] ~_.~No Addendum/Addenda Wer~ Received (¢her--k and initial). The Proposer represents that it has not retained a person to solic~l: or secure a City ~..ontr~c-t ~,upon ar~ agre~’nent or understanding tora commiss’,lpn, per~untage, brokerage, or cont|ngent fee} except for retention of bona fide employee or bona fide established commemial sell|rig agenCies for the;purpose of s~=uring business, SignaturP~s (Must be the same signature(s) ’as wgi appP.ar on (PrfnV~l name of siE~n=b~) . O-r~e ~f signalor~) (Printed r~ne o~’si~nafz~yl Califor/~ia CorporafJor~s Cede Section 313 requires two corporate o/~’cer~ to e~ec~ co~tm~. The signature of Fi~ 0~ ~ be one of the [~lo~ng: Chai~an of ~e B~; P~MenL" or ~s~fa~ se~ Chie[ Fin~cial Office~ ~r A~Sf~nt Treasurer. In ~e ~tem~tive, a ce~ed. corporate msol~on a~ng to ~e s~gnato~ a~od~y of ~e in~viduals signing in:~eir r~p~ve cITY OF PALO ALTO RFP 135231 P~GE 3 OF 4 : CONTRACT NO. BETWEEN THE CITY OF PALO ALTO AND FLYNN & ASSOCIATES 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 FLYNN & ASSOCIATES, a sole proprietorship, located at 4200 Driftwood Place, Discovery Bay, CA 94514-9267 ("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 emp!oyees, 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. // 010724 sm 0052779 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 Ks described below. 2.2 CITY may order substantial changes in the scope or character of the Basic Services, the De!iverables, 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 ful! compensation for all work performed prior to CONSULTANT’s receipt Of the notice of change and further willbe 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, 6missions, 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 changesin 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 substantia! 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. //. 010724 sm 0052779 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 6r 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 and warranties set forth in this Contract, CITY hires CONSULTANT to execute, and CONSULTANT covenants and agrees that it ~ill 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. Barry Flynn will be assigned as the project coordinator who will represent CONSULTANT during the day-to-day work on the Project. If circumstances or conditions subsequent to the execution of this Contract cause the substitution of the project director or project coordinator for any reason, the appointment of a substitute project director or substitute project coordinator wil! be subject to the prior written approval of the project manager. 3.4 CONSULTANT represents and warrants that it will: 3.4.1 Procure all permits and licenses, pay all charges and fees, and give all notices which may be necessary and incident to the due and lawful prosecution of the Project; 3.4.2 Keep itself fully informed of all existing and future Federa!, 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 010724 sm 0052779 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 wil! 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 wil!be responsible for their performance.If any employee or consultant of CONSULTANT fails or refuses to carry outthe provisions of this Contract or appears to be incompetent orto act in a disorderly or improper manner, the employeeor 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; 010724 sm 0052779 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 Service~ 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 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 approva! 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. Garish Balachandran, Interim 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 Shishir Mukherjee, the 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: 010724 sm 0052779 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 Fifty Thousand Dollars ($150,000) for fiscal year 2001- 2002. CITY will exercise the option to renew the contract in the amount of One Hundred Fifty Thousand Dollars ($150,000) for a second fiscal year (2002-2003) and One Hundred Thirty Thousand Dollars ($130,000) for a third fiscal year (2003-2004) 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 Thousand Dollars ($430,000). 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 wil! 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. 5.1.3 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 pertaiging 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 010724 sm 0052779 The schedule of payments will be made as follows: 6 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 fn 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 ofsubmission, 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 h~reunder 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 010724 sm 0052779 ¯7 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, progision, 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 Ratinq 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 ful! 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 010724 sm 0052779 8 an endorsement stating that the insurance is primary coverage and wil! 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 . I!.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. 010724 sm 0052779 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 Counci!. 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, wili not be construed as a faiiure~ on the part of CONSULTANT to fulfill its obligations under this Contract. 010724 sm 0052779 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 fol!ows: To CITY:Office of the City Clerk City of Palo Alto Post Office Box 10250 Pa!o 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 & Associates 4200 Driftwood Place Discovery Bay, CA 94514-9267 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. 010724 sm 0052779 ! 1 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 emp!oyment, including completing the requisite form furnished by CITY and set forth in Exhibit "~’. 15.2 CONSULTANT agrees that each contract for services from independent, providers will contain a provision substantfally 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 Disabili£ies 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 010724 sm 0052779 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 Californiaor 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 pirty in any action brought to enforce the terms of this Contract or arising out ofthis 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 010724 sm 0052779 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. // // // // // // // // // // // // // // // // 010724 sm 0052779 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 PALO ALTO City Clerk APPROVED AS TO FORM: City Attorney APPROVED: Assistant City Manager Mayor FLYNN & ASSOCIATES By: Name: Title: Director of Administrative Services Director of Utilities By: Name: Title: Risk Manager Taxpayer Identification No. Attachments: EXHIBIT. "W’: EXHIBIT ~B": EXHIBIT ~C": EXHIBIT "~’: (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 010724 sm 0052779 15 CERTIFICATE OF ACKNOWLEDGMENT (Civil Code § 1189) STATE OF ) COUNTY OF ) On , 2001, 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 010724 sm 0052779 1 6 CERTIFICATE OF ACKNOWLEDGMENT (Civil Code § 1189) STATE OF ) ) SS. COUNTY OF ) On , 2001, 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 010724 sm 0052779 17 EXHIBIT A SUMMARY OF SERVICES Flynn & Associates will provide electric consulting services and regulatory support to the City of Palo alto as outlined in the City’s Request for proposal, Project Number 135231. Services and support will consist of the following five task categories: TASK 1: Monitor and analyze ISO, FERC, CEC and PG&E (Grid Plarming) proceedings and, based on discussion with staff, represent the City’s interests in these proceedings In this task, Flynn & Associates will monitor and analyze ISO reports and filings, FERC orders and filings, and CPUC and CEC proceedings related to regulatory affairs to evaluate the impacts on Palo Alto; they will also monitor and analyze the PG&E and ISO transmission grid planning and expansion studies with a focus on transmission grid reinforcement in the Greater bay Area. The output from this task will include concise written reports, verbal report and critical comments. TASK 2: Assist the staff to develop strategies and positions to deals with critical issues related to the proceedings monitored in TASK 1. In this task, Flynn & Associates will recommend positions for Palo Alto in various ISO, FERC and CPUC proceedings and strategies for dealing with critical issues such as Transmission Access Charge (TA C), Congestion Management Reform (CMR), Firm Transmission Rights. (FTR), Metered Sub System (MSS) and Regional Transmission Organization (RTO) filing. The output from this task will be position/strategy papers on these issues for the benefit of City regulatory staff. TASK 3: Assist Palo Alto to improve reliability in the Greater Bay Area by advocating higher planning standards and the need for more transmission and getting them built. In this task, Flynn associates will take on an advocacy role for higher planning standards in the ISO Transmission Planning Standards Committee and before the ISO Boar," they will assist Palo Alto to join with other Bay Area cities, municipal utilities and regional organizations in promoting additional transmissionlines, and getting them built to improve reliability in the Greater Bay Area. The output from this task will be quarterly progress reports. TASK 4: Assist City in developing 1.ong-term solutions for its transmission need, especially required after the existing interconnection agreements expire. In this task, Flynn & Associates will assist the City in developing long-term solutions for City’s firm transmission needs to reliably move energy from the existing resources or market purchases to the city gate at a reasonable cost. Such transmission solution will be a priority for the City as existing transmission interconnection agreements are likely to expire unless extended through TAC settlement or through negotiations with PG&E. The output from the task will be a summary report on the long-term transmission solution. Task 5: Provide the City with miscellaneous electric regulatory consulting services. Due to rapidly changing regulatory landscape Flynn & Associates may be requested to perform other electric i’egulatory services as needed to provide positive benefits to the City. Fee Schedule The maximum compensation due and payable to Flyma and Associates, whose hourly rate also contained in this Exhibit "B", is subject to CITY’s budget of in FY 2000- 2001 persuant to City’s Request for Proposals No. 135231 and CITY’s appropriations for this service contract. No representation or warranty is made by CITY that Flynn and Associates shall be entitled to a minimum amount of compensation. The attached billing rate may be adjusted at the renewal date, if any, to reflect the change in rates officially established by Flynn and Associates. Reproduction, printing, communications, computer services, and other miscellaneous support services shall be billed at 10% (ten percent) of the labor costs for the billing period. This additional "non-labor" cost will be included for each billing period. A~ travel, food, lodging 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. RATES Professional Services Principal Senior Consultant Consultant Associate Consultant Analyst $210-235 per hour $175-195 per hour $150-170 per hour $120-140 per hour $55-85 per hour ;ived: 04.May.01 04:27 PM From: 6503263177 To: 8017605925 ria~ 0,~ 01 O~:~3p HERTHER CROSSKiLL Powered by~Fax.¢om Page: 2 of 2 650-3~6-3177 A,CORD. PRODUCER SBC Insurance Services ~60 Sheridan Av suite 211Palo Alto CA 94306 Phone:650-328-6010 Fax:650-326-3177 INSURED ID HC 05/04/’01CERTIFICATE OF LIABILITY INSURANC ,._I I THIS CERTIRGATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFER8 NO RIGHT~ UPON THE CERTIFICATE HOLDER. THIS CERTIRCATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIE5 BELOW. Flvnn & Associates42D0 Driftwood Plac~Di=covery~ay CA 94514 COVERAOE3 INSURERSAFFORDING COVERAGE I~ B: IN.~URER ¢: C G U Insurance Co. Safeco Insurance Company A GENERAL LIABILITY GEN’L AGGREGKTE I IMIT APPtJES PER --] POUCY F-’-] PRO-1 I Jam" I ILOC I ALL OWNED AUTOS ! SCHEZXgJ~ AUTO~ HIRED AUTOS "~ OCCUR ~DEDUCTIBLE ’WORK~RI~ COMFENSAT~3N AND "POLICY Nu~ FALH727541 FALH727541 ~2998348 POLICY EFF~ClIVE 09/25/00 0 /2s/00 12/16/00 PDOLICY EXPIRAIIO N o9/25/ol o~/25/o~ 06/16/01 ~cHoc~PJU~CS $1r000,000 RRS~e(’~o~f~)i$100~000 (F.=,=~m)$1,000,000 BODILY INJURY 80~LY INJURY PROPERTY DAMAGE $ Atrro ONLY-EAACCI~ENI" I $ OI"HeR ~F.A AC¢ $ i ALrr’o ONLY:AGO ! $ ] EAGHOGCURRE~CE - ¯ = $ .. l AGGRE,~ATE S $ $ $ Tom, uz~s I F--L. F.ACH A~GIDENT EL IXSEASE- EA EMPLOYEE $ $ I:}I~;c RIPTIO N 0e OP E RAll 0 N~rLOGATIO RSNEH]CL~S~XCLUSIO NS AOOE9 BY I:N DO RS EMENT/-~ PECIAL PROVISIONS ;Certificate Holder is hereby namad as ,l~t~.t:oz~a_l. insured. Exclusions : Products/Completed 0pera~ions, and Designated Professional Servs. Ten d~ys notice of cancellation for non-payment of premium. CERTIFIGATE HOLDER INSURED; INSURER LETTIE~ A CITZPAL city of Palo Fernando Va!ez P.O. ~ox 10250 Palo Alto CA 94303 ACORD 25-S (7197) CANCELLATION SHOUI~ ~ OF THE ABOVE DESCRIBED POUGIE~ BE CANCEIJ_F.D BEFORE THE EXPIRATJO[, DATE ~0 F, THE ISSL~NG IN’3 URER WILL EN£:~E~VOR TO M~JL "I 0 DAY~ V’R~TTEN NOllCE TO ~ CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAJLUP~ TO I~ ~O ~ I~:~.E ~ O~UGAIION OR LI~ILfTY OF ANY KIND UPON THE II’~UREP~ ITS AGENTS OR PART L. P~ Or, il - PROPOSER INFORMATION SECTION 300A Addenda During the Proposal process there may be changes to the Proposal documents, which would require an issuance of an addendum or addenda. City disclaims any and all liability for loss, or damage to any Proposer who does not receive any addendum issued by City in connection with this RFP. Any Proposer in submitting a Proposal is deemed to waive any and all claims and demands Proposer may have against City on account of the failure of delivery of any such addendum to Proposer. Any and all addenda issued by City shall be deemed included in this RFP, and the provisions and instructions therein contained shall be incorporated to any Proposal submitted by Proposer. To assure that all Proposers have received each addendum, the following acknowledgment and sign-off is required. Failure to acknowledge rece!pt of an addendum/addenda may be considered an. irregularity in the Proposal: Addendum number(s) received: r-J1; [] 2; [] 3; [] 4; [] 5; [] 6i ~] ~ No Addendum/AddendaWere Received (check and initial). []7; []8; []9 The Proposer represents that it has not retained a person to solicit or secure a City contract (upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee) except for retention of bona fide employee or.bona fide established commercial selling agencies for the purpose of securing business. Pr0Poser’s Designated Contact Name: Barry R. Fly.~Title: Owner/President Phone: 925-634-7500 Fax: 925-634-7888 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. Proposer is required to provide a certificate in good standing from the State of California with its Proposal. . (As s.ole..proprietor - not applicable)The undersigned heriby agrees to, and accepts the [erms ana condk~ons of this RFP. Signatures (Must be the same signature(s) as will appear on Contract): First Officer*Second Officer** (Signature) (Printed name of signatory) (Title of signatory) (Signature) (Pdnted name of signatory) (’Title of signatory) Note:Califomia 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 RFP 135231 PAGE 3 OF 4 PART II- PROPOSER INFORMATION SECTION 300A The undersigned certifies that the Proposer is not a corporation, and is not subject to the requirements of. California Corporations code, and hereby agrees to, and accepts the terms and conditions of this RFP. (Signature) ~ Barry R. FlYnn . (Printed name 6f signatory) Owner/President (Title of signatory) CITY OF PALO ALTO RFP 135231 PAGE 4 OF 4 CONTRACT NO. BETWEEN.THE CITY OF PALO ALTO AND INTERSTATE GAS 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 INTERSTATE GAS SERVICES, INc., a California corporation, located at 2600 Kitty Hawk Road, Suite I01, Livermore, CA 94550 ("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 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 initia! 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. // 010724 sm0052778 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 ~s 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 fol!ows: (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, wil! 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. // 010724 sm 0052778 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 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 Mark Baldwin as the project director to have supervisory responsibility for the performance, progress, and execution of the Project. Mark Baldwin 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 ~he 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 010724 sm 0052778 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 outthe provisions of this Contract or appears to be incompetent orto 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; 010724 sm 0052778 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 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 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 wil! 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. Garish Ba!achandran, Interim 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, Karla Dailey and Monica Padil!a, 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: 010724 sm 0052778 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 Sixty Thousand Dollars ($60,000) for fiscal year 2001-2002. CITY will exercise the option to renew the contract in the amount of Sixty Thousand Dollars ($60,000) for a second fisca! year (2002-2003) and Forty Thousand Dollars ($40,000) for a third fiscal year (2003-2004) 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 shal! not exceed One Hundred Sixty Thousand Dollars ($160,000). 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 contractua! 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 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: 010724 sm 0052778 6 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 Additiona! 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 wil! 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 010724 sm 0052778 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 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 010724 sm 0052778 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 wil! 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 substantia! 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. 010724 sm 0052778 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 ~xceed 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. 010724 sm 0052778 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: 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. 010724 sm 0052778 ! 1 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 "~’. 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 ~he 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 comply with or ensure by its advice that compliance with such 010724 sm 0052778 i 2 ~provisions wil! be effected pursuant to the terms of this Contract. 16.2 Upon the agreement of the parties, any cbntroversy 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 ofthis 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 wil! remain in full force and effect. 16.10 All exhibits referred to in this Contract and any addenda, appendices, attachments, and schedules which, from time to time, may be referred to in any duly executed amendment hereto are by such reference incorporated in this Contract and will be deemed to be a part of this Contract. 010724 sm 0052778 13 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 Pa!o Alto Municipal Code. This Contract wil! 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. // // // // // // // // // // ,// // // // // // // // 010724 sm0052778 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 PALO ALTO CITY CLERK APPROVED AS TO FORM: City Attorney APPROVED: MAYOR INTERSTATE GAS SERVICES,INC. By: Name: Title: Director of Utilities Director of Administrative Services By: Name: Title: Risk Manager Taxpayer Identification No. Attachments: EXHIBIT "A": EXHIBIT "B": EXHIBIT "C": EXHIBIT ~’: (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 010724 sm 0052778 1 5 CERTIFICATE OF ACKI~OWL~.DGMENT (Civil Code § 1189). STATE OF ) COUNTY OF ) On , 2001, before me, the undersigned, a Notary Public in and for said Countyand 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 010724 sm 0052778 16 CERTIFICATE OF ACKNOWLEDGEMENT (Civil Code § 1189) STATE OF ) ) SSo COUNTY OF ) On , 2001, 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 010724 sm 0052778 17 EXHIBIT A SUMMARY OF SERVICES Interstate Gas Service (IGS) 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 135231.Services and support shall be comprised of the following task. TASK 1: Provide the City with miscellaneous.natural gas consulting services. jrn this task IGS shall perform -Backup service for gas scheduling and gas balancing or / and imbalance trading, upon City staff request. -Palo Alto Gas Pool Manager functions, for direct access (DA) customers - Assist City staff in developing plans and procedures for the City to mitigate future natural gas curtailments on PG&E system -Perform natural gas related tasks as requested by City staff PROOUCER (415) 788-98 iO FA~X (415) 397- S 530 ISU/In~.urance Services of S.F. I00 Pine Street, Suite 1700 San Francisco, CA 94111 CERTIFICATE OF LIABILITY INSURANCE 07/25/2001 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. ~SUREO Interstate G~s Services Mark Baldwin Interstate Gas Services, Inc. 2600 Kitty Hawk Road, Suite 101 Liverrnore, CA 94550 COVERAG ES INSURERS AFFORDING COVERAGE HARTFORD INSURANCE GROUP THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT. TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAJMS. INSR POLICY I=f. F I=CTIV~P OLICY’ EXPIP~TIONLTRWPE OF ~POLICY NUMBER DATE p~&/OQ/Y~DAI~ (klI~DD/t’Y}UMrP3 GENERALLI/~KJTY 575BAN!2150 07/01/2001 07/01/2002 ~-HOCCURR~NCE ~1~000~00, G~.J~GE LIABILJr’~ ANY ~JTO EXCE~ LL~,BILRY OTHER 575BANI2150 o7/ol/2OOl ~8CR/PT~N~E~TK3~An~N~JV~LF~J~EXCL~N~/~YE~RsEMENT/SPEC~ALPR~V~8~)Ns:ertificate holder is named as additional insured with respect interest may appear in the work of the Named Insured. 07/01/2002 CO~t~D ~F~LE LI~T (Ea aco~er~) P~ per,~n) (P~ ~a~) OT~R ~ ~C t~O ~" T~Y UMIS I E.L ~ ~ EL B~- ~ICY LI~[ I, 000~ OO( to form CG2OIO attacl~d as their [0 day notice of cancellation. CERTIFICATE HOLDER I J ~mDrnoN~. =NSUR~°: ~NSUR~R LET~R: City of Palo Alto P.O. Box 10250 Palo Alto, CA 94303 ACORD 25~ (7197) CANCELLATION SHOULD ~ OF THE ABOV~ DE$CR~6ED POLICES BE ~ELLED BEFORE ~ EXPIRATION OATE TI-L=IE-OF, TH~ IS~J.ING CC~PANY Wt.L EMDeAVOR TO MAI. DAY~ WRI’rrEN NOTICE TO THE CERTIFICATE HOLDER NA~ED TO ~ LEFT, BUT FA~.URE TO MAIL SUCH NOTIC~ SHALL ~OSE NO OBLIGATION OR LIABILITY OF ANY KJNO UPON THE C~PANY, ITS AGENTR OR Rc:PRESB~TATIVE~. AETHORIZ~D REPRESEN’TATIV~ ©ACORD CORPORATION 198~ Interstate Gas Services, Inc. 2001 Fee Schedule Professional Staff Mr. Mark Baldwin, Principal Mr. Chris Price, Sr. Project Manager Ms. Joy Young/Mr. Johnnie Painter, Sr. Analysts Ms. Suzanne McFadden, Specialist il General Office Staff ¯Special projects $195.00/Hr $165.00/Hr $ 95.00/Hr $ 70.00/Hr $ 55.00/Hr Gas Operations & Management Hourly Option ¯. Scheduled workday ¯Weekends/Holidays/After Normal Business Hours (z~ Hr. Minimum/Day) Monthly and Volumetric Fee Option $ 75.00/Hr $150.00/Hr Negotiated Client shall reimburse IGS for reasonable documented expenses incurred by IGS associated ~ith services performed under client agreement in accordance with the .following schedule: ¯Fax Service: Local or US International ¯Special Handling No Charge $1.75/Page -~Overnight Packages Actual Cost-Mail Service Actual Cost-Bulk Reproduction Actual Cost ¯Automobile Expense $0.35/Mile ¯Travel, Lodging, Meals Actual Cost ¯Traini.ng Material Reproduction Actual Cost Or, M. Or, II PROPOSER INFORMATION SECTION 300A Addenda During the Proposal process there may be changes to the Proposal documents, which would require an issuanceof an addendum or addenda. City disclaims any and all liability for loss, or damage to any Proposer who does not receive any addendum issued by City in connection with this RFP. Any Proposer in submitting a Proposal is deemed to waive any and all claims and demands Proposer may have against City on account of the failure of delivery of any such addendum to Proposer. Any and all addenda issued by City shall be deemed included in this RFP, and the provisions and instructions therein contained shill be incorporated to any Proposal submitted by Proposer. To assure .that all Proposers have received each addendum, the following acknowledgment and sign-off is required. Failure to acknowledge receipt of an addendum/addenda may be considered an irregularity in the Proposal: Addendum number(s) received: [-11; [] 2; [] 3; [] 4; [] 5; [] 6; ~~No Addendum/Addenda Were Received (check and initial). F77; r78; F19 The Proposer represents that it has not retained a person to solicit or secure a City contract (upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee) except for retention of bona fide employee or bona fide established commercial selling agencies for the purpose of securing business. Proposer’s Designated Contact Name: Mark Baldwin Title: Phone: (925) 243-0350 Fax: President (925) 243-0349 "l’he 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. Proposer is required to provide a certificate in good standing from the State of.California with its Proposal. "l’he undersigned hereby agrees to, and ac~cepts the terms and conditions of this RFP. Signatures (Must be the same signature(s) as will appear on Contract): First Officer* (Signature) Mark-Baldwin (Printed name of signatory) President (Title of signatory) (Si.g.~atur~) . .unrls~zne Baldwin (Pd~nted name of signatory)Treasurer (Title of signatory) /Vote: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 RFP 135231 PAGE3OF4