HomeMy WebLinkAbout04565 - HENWOOD ENERGY MUNICIPAL ELECTRIC FEASIBILITY STUDY Henwood Energy
Electric Utility Feasibility
AGREEMENT #4565
CITY OF PALM SPRINGS M07159, 9-18-02
CONTRACT SERVICE AGREEMENT
THIS CONTRACT SERVICES AGREEMENT (herein "Agreement"), is made and entered
into this 18th day of September, 2002, by and between the CITY OF PALM SPRINGS, a municipal
corporation, (herein "City") and Henwood Energy Services, (herein "Contractor"). The term
Contractor includes professionals performing in a consulting capacity. The parties hereto agree as
follows:
1.0 SERVICES OF CONTRACTOR
1.1 Scope of Services. In compliance with all terms and conditions of this
Agreement, the Contractor shall provide those services specified in the "Scope of Services"
attached hereto as Exhibit "A" and incorporated herein by this reference, which services may be
referred to herein as the "services" or "work" hereunder. As a material inducement to the City
entering into this Agreement, Contractor represents and warrants that Contractor is a provider of first
class work and services and Contractor is experienced in performing the work and services
contemplated herein and, in light of such status and experience, Contractor covenants that it shall
follow the highest professional standards in performing the work and services required hereunder
and that all materials will be of good quality, fit for the purpose intended. For purposes of this
Agreement, the phrase "highest professional standards" shall mean those standards of practice
recognized by one or more first-class firms performing similar work under similar circumstances.
1.2 Contractor's Proposal. The Scope of Service shall include the Contractor's
proposal or bid which shall be incorporated herein by this reference as though fully set forth herein.
In the event of any inconsistency between the terms of such proposal and this Agreement,the terms
of this Agreement shall govern.
1.3 Compliance with Law. All services rendered hereunder shall be provided in
accordance with all ordinances, resolutions, statutes, rules and regulations of the City and any
Federal, State or local governmental agency having jurisdiction in effect at the time service is
rendered.
1.4 Licenses, Permits, Fees and Assessments. Contractor shall obtain at its
sole cost and expense such licenses, permits and approvals as may be required by law for the
performance of the services required by this Agreement. Contractor shall have the sole obligation to
pay for any fees, assessments and taxes, plus applicable penalties and interest, which may be
imposed by law and arise from or are necessary for the Contractor's performance of the services
required by this Agreement, and shall indemnity, defend and hold harmless City against any such
fees, assessments,taxes, penalties or interest levied, assessed or imposed against City hereunder.
1.5 Familiarity with Work. By executing this Contract, Contractor warrants that
Contractor(a) has thoroughly investigated and considered the scope of services to be performed;
(b) has carefully considered how the services should be performed; and (c) fully understands the
facilities, difficulties and restrictions attending performance of the services underthis Agreement. If
the services involve work upon any site, Contractor warrants that Contractor has, or will, investigate
the site and is or will be fully acquainted with the conditions there existing, prior to commencement
of services hereunder. Should the Contractor discover any latent or unknown conditions,which will
materially affect the performance of the services hereunder, Contractor shall immediately inform the
City of such fact and shall not proceed except at Contractor's risk until written instructions are
received from the Contract Officer.
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1.6 Care of Work. The Contractor shall adopt reasonable methods during the
life of the Agreement to furnish continuous protection to the work, and the equipment, materials,
papers, documents, plans, studies and/or other components thereof to prevent losses or damages,
and shall be responsible for all such damages, to persons or property, until acceptance of the work
by City, except such losses or damages as may be caused by City's own negligence.
1.7 Further Responsibilities of Parties. Both parties agree to use reasonable care
and diligence to perform their respective obligations underthis Agreement. Both parties agree to act
in good faith to execute all instruments, prepare all documents and take all actions as may be
reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified,
neither party shall be responsible for the service of the other.
1.8 Additional Services. City shall have the right at any time during the performance
of the services,without invalidating this Agreement,to order extra work beyond that specified in the
Scope of Services or make changes by altering, adding to or deducting from said work. No such
extra work may be undertaken unless a written order is first given by the Contract Officer to the
Contractor, incorporating therein any adjustment in (i) the Contract Sum, and/or (ii) the time to
perform this Agreement, which said adjustments are subject to the written approval of the
Contractor. Any increase in compensation of up to five percent (5%) of the Contract Sum or
$25,000;whichever is less, or in the time to perform of up to one hundred eighty(180)days may be
approved by the Contract Officer. Any greater increases, taken either separately or cumulatively
must be approved by the City Council. It is expressly understood by Contractor that the provisions
of this Section shall not apply to services specifically set forth in the Scope of Services or reasonably
contemplated therein. Contractor hereby acknowledges that it accepts the risk that the services to
be provided pursuant to the Scope of Services may be more costly or time consuming than
Contractor anticipates and that Contractor shall not be entitled to additional compensation therefore.
1.9 Special Requirements. Additional terms and conditions of this Agreement,
if any, which are made a part hereof are set forth in the Special Requirements attached hereto as
Exhibit Band incorporated herein by this reference. In the event of a conflict between the provisions
of Exhibit B and any other provisions of this Agreement, the provisions in Exhibit B shall govern.
2.0 COMPENSATION
2.1 Contract Sum. For the services rendered pursuant to this Agreement, the
Contractor shall be compensated in accordance with the Schedule of Compensation attached
hereto as Exhibit C and incorporated herein by this reference, but not exceeding the maximum
contract amount of Twenty Thousand Dollars ($20,000.00) (herein Contract Sum), except as
provided in Section 1.8. The method of compensation may include (1) a lump sum payment upon
completion, (ii) payment in accordance with the percentage of completion of the services, (III)
payment for time and materials based upon the Contractor's rates as specified in the Schedule of
Compensation, but not exceeding the Contract Sum or(iv)such other methods as may be specified
in the Schedule of Compensation. Compensation may include reimbursement for actual and
necessary expenditures for reproduction costs, telephone expense, transportation expense
approved by the Contract Officer in advance, and no other expenses and only if specified in the
Schedule of Compensation. The Contract Sum shall include the attendance of Contractor at all
project meetings as set forth in Exhibit C; Contractor shall not be entitled to any additional
compensation for attending said meetings.
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2.2 Method of Payment. Unless some other method of payment is specified in
the Schedule of Compensation, in any month in which Contractor wishes to receive payment, no
later than the first (1s) working day of such month, Contractor shall submit to the City in the form
approved by the City's Director of Finance, an invoice for services rendered prior to the date of the
invoice. Except as provided in Section 7.3, City shall pay Contractor for all expenses stated thereon
which are approved by City pursuant to this Agreement no later than the last working day of the
month.
3.0 PERFORMANCE SCHEDULE
3.1 Time of Essence. Time is of the essence in the performance of this
Agreement.
3.2 Schedule of Performance. Contractor shall commence the services pursuant
to this Agreement upon receipt of a written notice to proceed and shall perform all services within
the time period(s) established in the "Schedule of Performance" attached hereto as Exhibit "D", if
any, and incorporated herein by this reference. When requested by the Contractor, extensions to
the time period(s) specified in the Schedule of Performance may be approved in writing by the
Contract Officer but not exceeding one hundred eighty (180) days cumulatively.
3.3 Force Maieure. The time period(s)specified in the Schedule of Performance
for performance of the services rendered pursuant to this Agreement shall be extended because of
any delays due to unforeseeable causes beyond the control and without the fault or negligence of
the Contractor, including, but not restricted to, acts of God or of the public enemy, unusually severe
weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight
embargoes, wars, litigation, and/or acts of any governmental agency, including the City, if the
Contractor shall within ten (10) days of the commencement of such delay notify the Contract Officer
in writing of the causes of the delay. The Contract Officer shall ascertain the facts and the extent of
delay, and extend the time for performing the services for the period of the enforced delaywhen and
if in the judgment of the Contract Officer such delay is justified. The Contract Officer's determination
shall be final and conclusive upon the parties to this Agreement. In no event shall Contractor be
entitled to recover damages against the City for any delay in the performance of this Agreement,
however caused, Contractor's sole remedy being extension of the Agreement pursuant to this
Section.
3.4 Term. Unless earlier terminated in accordance with Section 7.8 of this
Agreement,this Agreement shall continue in full force and effect until completion of the services but
not exceeding one (1) year from the date hereof, except as otherwise provided in the Schedule of
Performance (Exhibit "D").
4.0 COORDINATION OF WORK
4.1 Representative of Contractor. The following principals of Contractor are
hereby designated as being the principals and representatives of Contractor authorized to act in its
behalf with respect to the work specified herein and make all decisions in connection therewith:
It is expressly understood that the experience, knowledge, capability and reputation of the
foregoing principals were a substantial inducement for City to enter into this Agreement. Therefore,
the foregoing principals shall be responsible during the term of this Agreement for directing all
activities of Contractor and devoting sufficient time to personally supervise the services hereunder.
For purposes of this Agreement, the foregoing principals may not be replaced nor may their
responsibilities be substantially reduced by Contractor without the express written approval of City.
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4.2 Contract Officer. The Contract Officer shall be such person as may be
designated by the City Manager of City. It shall be the Contractor's responsibility to assure that the
Contract Officer is kept informed of the progress of the performance of the services and the
Contractor shall refer any decisions which must be made by City to the Contract Officer. Unless
otherwise specified herein, any approval of City required hereunder shall mean the approval of the
Contract Officer. The Contract Officer shall have authority to sign all documents on behalf of the
City required hereunder to carry out the terms of this Agreement.
4.3 Prohibition Against Subcontracting or Assignment. The experience,
knowledge, capability and reputation of Contractor, its principals and employees were a substantial
inducement for the City to enter into this Agreement. Therefore, Contractor shall not contract with
any other entity to perform in whole or in part the services required hereunder without the express
written approval of the City. In addition, neither this Agreement nor any interest herein may be
transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law,
whether for the benefit of creditors or otherwise, without the prior written approval of City. Transfers
restricted hereunder shall include the transfer to any person or group of persons acting in concert of
more than twenty five percent(25%)of the present ownership and/or control of Contractor,taking all
transfers into account on a cumulative basis. In the event of any such unapproved transfer,
including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall
release the Contractor or any surety of Contractor of any liability hereunder without the express
consent of City.
The City's policy is to encourage the awarding of subcontracts to persons or entities with
offices located within the jurisdictional boundaries of the City of Palm Springs and, if none are
available,to persons or entities with offices located in the Coachella Valley("Local Subcontractors").
Contractor hereby agrees to use good faith efforts to award subcontracts to Local Subcontractors, if
Local Subcontractors are qualified to perform the work required. In requesting for the City to
consent to a subcontract with a person or entity that is not a Local Subcontractor, the Contractor
shall submit evidence to the City that such good faith efforts have been made or that no Local
Subcontractors are qualified to perform the work. Said good faith efforts may be evidenced by
placing advertisements inviting proposals or by sending requests for proposals to selected Local
Subcontractors. The City may consider Contractor's efforts in determining whether it will consent to
a particular subcontractor. Contractor shall keep evidence of such good faith efforts and copies of
all contracts and subcontracts hereunder for the period specified in Section 6.2.
4.4 Independent Contractor. Neither the City nor any of its employees shall have
any control over the manner, mode or means by which Contractor, its agents or employees, perform
the services required herein, except as otherwise set forth herein. City shall have no voice in the
selection, discharge, supervision or control of Contractor's employees, servants, representatives or
agents, or in fixing their number, compensation or hours of service. Contractor shall perform all
services required herein as an independent contractor of City and shall remain at all times as to City
a wholly independent contractor with only such obligations as are consistent with that role.
Contractor shall not at any time or in any manner represent that it or any of its agents or employees
are agents or employees of City. City shall not in any way or for any purpose become or be deemed
to be a partner of Contractor in its business or otherwise or a joint venturer or a member of any joint
enterprise with Contractor.
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5.0 INSURANCE, INDEMNIFICATION AND BONDS
5.1 Insurance. The Contractorshall procure and maintain, at its sole costand
expense, in a form and content satisfactory to City, during the entire term of this Agreement
including any extension thereof, the following policies of insurance:
(a) Commercial General Liability Insurance. A policy of commercial general
liability insurance written on a per occurrence basis with a combined single limit of at least
$1,000,000 bodily injury and property damage including coverages for contractual liability,
personal injury, independent contractors, broad form property damage, products and
completed operations. The Commercial General Liability Policy shall name the City of Palm
Springs as additional insured in accordance with standard ISO additional insured
endorsement form CG2010 (1185) or equivalent language.
(b) Worker's Compensation Insurance. A policy of worker's compensation
insurance in an amount which fully complies with the statutory requirements of the State of
California and which includes $1,000,000 employer's liability.
(c) Business Automobile Insurance. A policy of business automobile liability
insurance written on a per occurrence basis with a single limit liability in the amount of
$1,000,000 bodily and property damage. Said policy shall include coverage for owned, non-
owned, leased and hired cars.
(d) Additional Insurance. Additional limits and coverages, which may include
professional liability insurance, will be specified in Exhibit"B".
All of the above policies of insurance shall be primary insurance and issued by companies
whose rating satisfies the requirements in Section 5.4 of this agreement. The insurer shall waive all
rights of subrogation and contribution it may have against the City, its officers, employees and agents,
and their respective insurers. In the event any of said policies of insurance are canceled, the
Contractor shall, prior to the cancellation date, submit new evidence of insurance in conformance with
this Section 5.1 to the Contract Officer. No work or services under this Agreement shall commence
until the Contractor has provided the City with Certificates of Insurance, endorsements or appropriate
insurance binders evidencing the above insurance coverages and said Certificates of Insurance,
endorsements, or binders are approved by the City.
The contractor agrees that the provisions of this Section 5.1 shall not be construed as limiting
in any way the extent to which the Contractor may be held responsible for the payment of damages to
any persons or property resulting from the Contractor's activities or the activities of any person or
person for which the Contractor is otherwise responsible.
In the event the Contractor subcontracts any portion of the work in compliance with Section 4.3
of this Agreement the contract between the Contractor and such subcontractor shall require the
subcontractor to maintain the same polices of insurance that the Contractor is required to maintain
pursuant to this Section.
5.2 Indemnification. Contractor agrees to indemnify the City, its officers, agents
and employees against, and will hold and save them, and each of them, harmless from any and all
actions, suits, claims, damages, losses, costs, penalties, obligations, errors, omissions or liabilities
(herein "claims or liabilities") resulting from injuries to persons or damages to property that may be
asserted or claimed by any person, firm or entity arising out of or in connection with the negligent
performance of the work, operations or activities of Contractor, its agents,employees,subcontractors,
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or invitees, provided for herein, or arising from the negligent acts or omissions of Contractor
hereunder, or arising from Contractor's negligent performance of or failure to perform any term,
provision, covenant or condition of this Agreement, whether or not there is concurrent passive or
active negligence on the part of the City, its officers,agents or employees but excluding such claims or
liabilities arising from the sole negligence or willful misconduct of the City, its officers, agents or
employees, who are directly responsible to the City, and in connection therewith:
(a) Contractor will defend any action or actions filed in connection with
any of said claims or liabilities and will pay all costs and expenses, including legal costs and
attorneys'fees incurred in connection therewith that maybe asserted or claimed by any person,
firm, or entity to the extent caused by the of negligent activities of Contractor its agents or
employees hereunder, excepting only liabilities due to the sole negligence or willful misconduct of
the CITY, its agents or employees;
(b) Contractorwill promptly pay any judgment rendered againsttheCity, its
officers, agents or employees for any such claims or liabilities arising out of or in connection
with the negligent performance of or failure to perform such work, operations or activities of
Contractor hereunder; and Contractor agrees to save and hold the City, its officers, agents,
and employees harmless therefrom;
(c) _ In the event the City, its officers, agents or employees are made a
party to any action or proceeding filed or prosecuted against Contractor for such damages or
other claims arising out of or in connection with the negligent performance of or failure to
perform the work, operation or activities of Contractor hereunder, Contractor agrees to pay to
the City, its officers, agents or employees, any and all costs and expenses incurred by the City,
its officers, agents or employees in such action or proceeding, including but not limited to,
legal costs and attorneys' fees.
5.3 SufficiencV of Insurer or Surety. Insurance or bonds required by this Agreement
shall be satisfactory only if issued by companies qualified to do business in California, rated "A" or
better in the most recent edition of Best's Key Rating Guide or in the Federal Register, unless such
requirements are waived by the City Manager or designee of the City Manager due to unique
circumstances. In the event the City Manager determines that the work or services to be performed
underthis Agreement create an increased or decreased risk of loss to the City,the Contractor agrees
that the minimum limits of the insurance policies and the performance bond required bythis Section 5
may be changed accordingly upon receipt of written notice from the City Manager or designee;
provided that the Contractor shall have the right to appeal a determination of increased coverage by
the City Manager to the City Council of City within ten (10) days of receipt of notice from the City
Manager.
6.0 REPORTS AND RECORDS
6.1 Reports. Contractor shall periodically prepare and submit to the Contract
Officer such reports concerning the performance of the services required by this Agreement as the
Contract Officer shall require. Contractor hereby acknowledges that the City is greatly concerned
about the cost of work and services to be performed pursuant to this Agreement. For this reason,
Contractor agrees that if Contractor becomes aware of any facts, circumstances, techniques, or
events that may or will materially increase or decrease the cost of the work or services contemplated
herein or, if Contractor is providing design services,the cost of the project being designed,Contractor
shall promptly notify the Contract Officer of said fact, circumstance, technique or event and the
estimated increased or decreased cost related thereto and, if Contractor is providing design services,
the estimated increased or decreased cost estimate for the project being designed.
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6.2 Records. Contractor shall keep, and require subcontractors to keep, such
books and records as shall be necessary to perform the services required by this Agreement and
enable the Contract Officer to evaluate the performance of such services. The Contract Officer shall
have full and free access to such books and records at all times during normal business hours of City,
including the right to inspect, copy, audit and make records and transcripts from such records. Such
records shall be maintained for a period of three (3) years following completion of the services
hereunder, and the City shall have access to such records in the event any audit is required
6.3 Ownership of Documents. All drawings, specifications, reports, records,
documents and other materials prepared by Contractor, its employees, subcontractors and agents,
solely in the performance of this Agreement shall be the property of City and shall be delivered to City
upon request of the Contract Officer or upon the termination of this Agreement. Contractor shall have
no claim for further employment or additional compensation as a result of the exercise by City of its full
rights of ownership of the documents and materials hereunder. Any use of such completed
documents for other projects and/or use of uncompleted documents without specific written
authorization by the Contractor will be at the City's sole risk and without liability to Contractor, and the
City shall indemnify the Contractor for all damages resulting therefrom. Contractor may retain copies
of such documents for its own use. Contractor shall have an unrestricted right to use the concepts
embodied therein. All subcontractors shall provide for assignment to City any documents or materials
prepared by them, and in the event Contractor fails to secure such assignment, Contractor shall
indemnify City for all damages resulting therefrom.
6.4 Release of Documents. The drawings, specifications, reports, records,
documents and other materials prepared by Contractor in the performance of services under this
Agreement shall not be released publicly without the prior written approval of the Contract Officer.
7.0 ENFORCEMENT OF AGREEMENT
7.1 California Law. This Agreement shall be construed and interpreted both as to
validity and to performance of the parties in accordance with the laws of the State of California. Legal
actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be
instituted in the Superior Court of the County of Riverside, State of California,or any other appropriate
court in such county. Contractor covenants and agrees to submit to the personal jurisdiction of such
court in the event of such action.
7.2 Disputes. In the event of any dispute arising under this Agreement,the injured
party shall notify the injuring party, in writing, of its contentions by submitting a claim therefor. The
injured party shall continue performing its obligations hereunder so long as the injuring party
commences to cure such default within ten (10) days of service of such notice and completes the cure
of such default within forty-five (45) days after service of the notice, or such longer period as may be
permitted bythe injured party; provided that if the default is an immediate dangerto the health,safety
and general welfare, such immediate action may be necessary. Compliance with the provisions of this
Section shall be a condition precedent to termination of this Agreement for cause and to any legal
action, and such compliance shall not be a waiver of any party's right to take legal action in the event
that the dispute is not cured, provided that nothing herein shall limit City's or the Contractor's right to
terminate this Agreement without cause pursuant to Section 7.8.
7.3 Retention of Funds. Contractor hereby authorizes City to deduct from any
amount payable to Contractor (whether or not arising out of this Agreement) (i) any amounts the
payment of which may be in dispute hereunder or which are necessary to compensate City for any
losses, costs, liabilities, or damages suffered by City, and (ii) all amounts for which City may be liable
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to third parties, by reason of Contractor's acts or omissions in performing or failing to perform
Contractor's obligation under this Agreement. In the event that any claim is made by a third party,the
amount or validity of which is disputed by Contractor, or any indebtedness shall exist which shall
appearto be the basis for a claim of lien, City may withhold from any payment due, without Iiabilityfor
interest because of such withholding, an amount sufficient to cover such claim. The failure of City to
exercise such right to deduct or to withhold shall not, however, affect the obligations of the Contractor
to insure, indemnify, and protect City as elsewhere provided herein.
7.4 Waiver. No delay or omission in the exercise of any right or remedy by a non-
defaulting party on any default shall impair such right or remedy or be construed as a waiver. A party's
consent to or approval of any act by the other party requiring the party's consent or approval shall not
be deemed to waive or render unnecessary the other parry's consent to or approval of any subsequent
act. Any waiver by either party of any default must be in writing and shall not be a waiver of any other
default concerning the same or any other provision of this Agreement.
7.5 Rights and Remedies are Cumulative. Except with respect to rights and
remedies expressly declared to be exclusive in this Agreement,the rights and remedies of the parties
are cumulative and the exercise by either party of one or more of such rights or remedies shall not
preclude the exercise by it, at the same or different times, of any other rights or remedies for the same
default or any other default by the other party.
7.6 LegdAction. In addition to any other rights or remedies, either party may take
legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any
default,to compel specific performance of this Agreement,to obtain declaratory or injunctive relief,or
to obtain any other remedy consistent with the purposes of this Agreement.
7.7 Termination Prior to Expiration Of Term. This Section shall govern any
termination of this Agreement except as specifically provided in the following Section for termination
for cause. The City reserves the right to terminate this Agreement at anytime, with or without cause,
upon ten (10)days written notice to Contractor, except that where termination is due to the fault of the
Contractor, the period of notice may be such shorter time as may be determined by the Contract
Officer. In addition,the Contractor reserves the right to terminate this Agreement at anytime, with or
without cause, upon thirty(30) days written notice to City, except that where termination is due to the
fault of the City,the period of notice may be such shorter time as the Contractor may determine. Upon
receipt of any notice of termination, Contractor shall immediately cease all services hereunder except
as may be specifically approved by the Contract Officer. Except where the Contractor has initiated
termination, the Contractor shall be entitled to compensation for all services rendered prior to the
effective date of the notice of termination and for any services authorized by the Contract Officer
thereafter in accordance with the Schedule of Compensation or as may be approved by the Contract
Officer, except as provided in Section 7.3. In the event the Contractor has initiated termination, the
Contractor shall be entitled to compensation only for the reasonable value of the work product actually
produced hereunder. In the event of termination without cause pursuant to this Section, the
terminating party need not provide the non-terminating party with the opportunity to cure pursuant to
Section 7.2.
7.8 Termination for Default of Contractor. If termination is due to the failure of the
Contractor to fulfill its obligations underthis Agreement, City may,after compliance with the provisions
of Section 7.2,take over the work and prosecute the same to completion by contract or otherwise, and
the Contractor shall be liable to the extent that the total cost for completion of the services required
hereunder exceeds the compensation herein stipulated (provided that the City shall use reasonable
efforts to mitigate such damages), and City may withhold any payments to the Contractor for the
purpose of set-off or partial payment of the amounts owed the City as previously stated.
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7.9 Attorneys' Fees. If either party to this Agreement is required to initiate or defend
or made a party to any action or proceeding in anyway connected with this Agreement,the prevailing
party in such action or proceeding, in addition to any other relief which may be granted, whether legal
or equitable, shall be entitled to reasonable attorney's fees. Attorney's fees shall include attorney's
fees on any appeal, and in addition a party entitled to attorney's fees shall be entitled to all other
reasonable costs for investigating such action, taking depositions and discovery and all other
necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed
to have accrued on commencement of such action and shall be enforceable whether or not such
action is prosecuted to judgment.
8.0 CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
8.1 Non-liability of City Officers and Employees. No officer or employee of the City
shall be personally liable to the Contractor, or any successor in interest, in the event of any default or
breach by the City or for any amount which may become due to the Contractor or to its successor, or
for breach of any obligation of the terms of this Agreement.
8.2 Conflict of Interest. No officer or employee of the City shall have any financial
interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any
decision relating to the Agreement which effects his financial interest or the financial interest of any
corporation, partnership or association in which he is, directly or indirectly, interested, in violation of
any State statute or regulation. The Contractor warrants that it has not paid or given and will not pay
or give any third party any money or other consideration for obtaining this Agreement.
8.3 Covenant Against Discrimination. Contractor covenants that, by and for itself,
its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no
discrimination against or segregation of, any person or group of persons on account of race, color,
creed, religion, sex, marital status, national origin, or ancestry in the performance of this Agreement.
Contractor shall take affirmative action to insure that applicants are employed and that employees are
treated during employment without regard to their race, color, creed, religion, sex, marital status,
national origin, or ancestry.
9.0 MISCELLANEOUS PROVISIONS
9.1 Notice. Any notice, demand, request, document, consent, approval, or
communication either party desires or is required to give to the other party or any other person shall be
in writing and either served personally or sent by prepaid, first-class mail, in the case of the City,to the
City Manager and to the attention of the Contract Officer, CITY OF PALM SPRINGS, P.O. Box 2743,
Palm Springs, California 92263. In the case of the Contractor, it should be addressed to the person
at the address designated on the execution page of this Agreement, Either party may change its
address by notifying the other party of the change of address in writing. Notice shall be deemed
communicated at the time personally delivered or in seventy-two (72) hours from the time of mailing if
mailed as provided in this Section.
9.2 Interpretation. The terms of this Agreement shall be construed in accordance
with the meaning of the language used and shall not be construed for or against either party by reason
of the authorship of this Agreement or any other rule of construction which might otherwise apply.
9.3 Integration; Amendment. It is understood that there are no oral agreements
between the parties hereto affecting this Agreement and this Agreement supersedes and cancels any
and all previous negotiations, arrangements, agreements and understandings, if any, between the
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parties, and none shall be used to interpret this Agreement. This Agreement may be amended at any
time by the mutual consent of the parties by an instrument in writing.
9.4 Severability. In the event that any one or more of the phrases, sentences,
clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or
unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or
unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or
sections of this Agreement which are hereby declared as severable and shall be interpreted to carry
out the intent of the parties hereunder unless the invalid provision is so material that its invalidity
deprives either party of the basic benefit of their bargain or renders this Agreement meaningless.
9.5 Corporate Authority. The persons executing this Agreement on behalf of the
parties hereto warrant that(i)such party is duly organized and existing, (ii)they are duly authorized to
execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such
party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement
does not violate any provision of any other Agreement to which said party is bound.
[SIGNATURE BLOCK ON NEXT PAGE]
Henwood Agreement
9/27/2002
IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date
first written above
CITY OF PALM SPRINGS
EST: a municipal corporation
6�vY B
Cit� erk it Mana er
APPROVED AS TO FORM:
By City AttorneU Cj
CONTRACTOR: Check one:_Individual_Partnership_Corpoorrat�ion
Signature (notarized) Signature (notarized)
�� f1 (7
Named 'Z RJ k �5 ����AefV" {n(gG?Dmk Name: Ci
Title: bA j gD of �V' V, (� Y ®SM1 n�S Title: \.fi(a c-<P 2�c�
(This Agreement must be signed in the above space by This Agreement must be signe In the above space by
one of the following: Chairman of the Board, President one of the following: Secretary, Chief Financial Officer or
or any Vice President) any Assistant Treasurer)
State State of('. - L a/l�
County,yd`t.�r sr/�6;aBn���.¢`e lss County o, _/1 d�k[ar AZslsv-,
on %�'��a cj aoo� before me, Qq�,. .� (7 ( 5efore me, T8 i17pz fgy l-1 J- /- V -c-p-G�
' &.0 / fl�iS P. ally appeared ,djtsryLr=lr�, rn 'j ra,Fj.t� --�
personally appeared,:l =1"1 � _ � '1,`.T, Pi. v ;n 3personally known to me (or proved to me on the basis of
personally known to me (or proved to me on the basis of satisfactory evidence)to be the person(< hose name(5ris/ase-
satisfactory evidence) to be the person(sr'whose name(&)'is/are"subscribed to the within instrument and acknowledged to me that
subscribed to the within instrument and acknowledged to me that he/shelthey-executed the same in his/her/their authorized
he/she ffiey-executed the same in his/hedthgic-authorized capacity(ies);_and that by his/her/their-signature(sron the
capacity(ies)!and that by his/h�hei signature(sr on the instrument the person(&);or the entity upon behalf of which the
instrument the person(s�cr the entity upon behalf of which the person(E�)acted,executed the instrument.
persons)acted,executed the instrument. WITNESS my hand and official seal.
WITNESS my hand and official seal.
/ / ➢ �Notary Signatur :v Jai — ✓eNotary Signatu� / nt 2 � low
Notary Seal: Notary Seal:
MARSHA E.VAR p'0W AAARSARS
Commission 91355535 � HA E.VARGAS
Commission 91355535
Notary Public-California ' 4Zw Notary Public-Caliromia £
Sacramento County
my Comm,Eupiros May 6,2.D^a5 �. or".ExSacnim iranto County
��e+•w�+sr �txrtm�res AMayB,2DD6 J
Henwood Agreement
9/27/2002
EXHIBIT "A"
SCOPE OF SERVICES
The Electric Utility Municipalization Feasibility Study (EUMFS) Group is exploring the viability
of forming a local, publicly owned municipal utility. EUMFS Group engaged EES Consulting (EES)
to prepare a feasibility study of forming such a local municipal utility.
Southern California Edison (SCE) contends that EES has incorrectly estimated the revenues
that SCE correctly receives for owning and operating the electric distribution system in the
Coachella Valley. SCE maintains that EES has over estimated SCE's distribution rate by about 2
cents per KWh and the resulting annual distribution revenues available to the proposed municipal
utility by about $46 million.
Having prior experience in trying to initiate municipal utility services, the City of Palm Springs is
not interested in pursuing the formation of a local utility based upon faulty or overly optimistic
analyses. Before considering joining other local governments and possibly supporting the
formation of a regional municipal utility, Palm Springs wants a second, independent opinion on
whether EES made an error, as SCE alleges, in projecting the distribution costs local energy
consumers would incur under the status quo conditions.
The scope of work for this limited assessment is to determine what the local electric
distribution rates and revenues will be based on present CPUC approved SCE distribution rates
and what the increase would be if SCE received the distribution rates requested in its GRC. In
making this determination, Henwood will rely on public record documents filed with the CPUC,
which will be provided by SCE. The City will ensure that Henwood receives a copy of the EES
study and all appropriate work papers and electronic analysis that detail their determination of the
local distribution service costs under the status quo conditions.
In performing this work, Henwood will meet with SCE and with EES separately to determine
their position on what the appropriate distribution rates are and are likely to be following the GRC
decision. Our analysis will include consideration of the documents provided by SCE as well as
any additional materials provided by EES.
Once Henwood has reviewed the materials provided and determined the correct distribution
rates for the electric consumers that would become customers of the new municipal utility,
Henwood will determine the annual distribution revenue for the area making use of annual
Coachella Valley customer class usage data that will be provided by SCE. Differences with the
EES study conclusions will be identified and, to the extent possible within the budget constraints,
the underlying cause(s) documented. Henwood will prepare a final report outlining their findings.
Key Staff
In performing this assignment, Henwood will make use of appropriate staff and expertise from its
150+ staff resources. Key individuals that will be involved include:
➢ Mr. Adrian Chiosea, Project Manager
➢ Mr. Craig Castagnoli, Senior Project Manager,
➢ Mr. Doug Davie, Director Power Business Solutions Services
Henwood Agreement
9/27/2002
EXHIBIT "C"
SCHEDULE OF COMPENSATION
As we discussed, Henwood proposes to perform this assignment on a time-and-materials
basis, in accordance with our current consulting rate schedule (submitted previously), and limited
by a cap of$20,000. Included in the budget are the individual meetings with SCE and EES to be
held at Henwood's office in Sacramento and one meeting to review the report with you at your
Palm Springs office.
Task Labor (hours)
Review the report's structure of the distribution revenues 12 hours to 16 hours
Review revenues' calculations 20 hours to 24 hours
Review sources for estimating SCE's "Wire Rate 6 hours to 8 hours
Components" charge
Prepare letter report 18 hours to 24 hours
Presentation Trip 16 hours
Total hours 72 hours to 88 hours
Estimated Labor Cost $15,500 to $19,000
Expenses (estimated) $1,000 $1,000
Budget Total $16,500 to $20,000
Not-To-Exceed Budget $20,000
Expenses for this assignment are estimated at$1,000 for the purpose of a Not-To-Exceed budget.
The expenses will be billed in accordance with the Contractor's 2002 Fee Schedule as set forth
herein.
Henwood Agreement
9/27/2002
2002 Professional Consulting Rates
Rate Group . Hourly Fee
US $
Senior Executive 325
Director/ Principal 275
Senior ProjectManager 250
Project Manager 225
Senior Professional 200
Project Professional' 175
Staff Professional, 150
Assistant Professional 100'
Technician 75
Administrative Support Services
Rate'Group Hourly Fee, �US$
-Administrative Personnel " ' ' 95
Senior Administrative Su ort 80
Administrative,SupooitSpecialist 70,
Administrative Support 60
All labor efforts for this assignment will be discounted 10% off the rates shown
Support Service Charges
In addition to payment for professional services, all reasonable and necessary expenses incurred
in connection with the performance of professional services will be billed at cost plus 10%. Such
expenses include, but are not limited to, outside reproduction costs, artwork, airline travel, meals,
lodging, postage, freight, telephone, and travel related expenses. Facsimile charges are $2 per
outgoing page, no charge for receiving. Internal copying is charged at$0.10 per page. Color
copying is $1 per page. Mileage is charged at the Standard Mileage Rate as determined by the
Internal Revenue Service.
Materials, Equipment, Subcontractors
Charges for the purchase of job parts and materials, specialized equipment rental or purchase,
and tool rental or replacement purchase shall be charged at cost plus 15%. Expenditures for
hiring of sub-consultants or subcontractors shall be charged at cost plus 15%. To the extent sales,
use, or district taxes apply, such taxes shall be charged.
Henwood Agreement
9/27/2002
Late fees
Client agrees to pay the amount due to Consultant for services within thirty (30) days of the
invoice. Past due balances shall be charged interest at the rate of one and one-half percent
(1.5%) per month.
Insurance Provisions
Where a Client requires that it or other entities be named as additional insured with regard to
company insurance policies, any cost to Henwood Energy Services, Inc. for such provisions shall
be billed to the Client.
Fee Schedule Revision
This schedule is effective commencing January 1, 2002 and may be revised periodically by
Henwood.
Henwood Agreement
9/27/2002
EXHIBIT "D"
SCHEDULE OF PERFORMANCE
Time is of the essence of this agreement. CONTRACTOR shall perform all services hereunder as
expeditiously as is consistent with professional skill and care, as well as the orderly progress of
the Project work so as not to be the cause, in whole or in part, of delays in the completion of the
Project or in the achievement of any Project milestones, as provided herein. Specifically,
CONTRACTOR shall perform its Services so as to allow for the full and adequate completion of
the Project within thirty (30) days of receipt of a notice to proceed. If at any time it appears that an
individual mail piece cannot be completed by the date specified, CONTRACTOR shall notify CITY
of that fact and provide an estimate of the time when the mail piece will be completed. If
CONTRACTOR has been the sole source of delay, and if completion of the mail piece would be
expedited by use of other or additional consulting services, CITY may use the retained amounts
for the purpose and shall be relieved of paying such retention to CONTRACTOR. If the
CONTRACTOR's work is not satisfactory, CITY has the right to take appropriate action, including
but not limited to: (1) meeting with the CONTRACTOR to review the quality of the work and
resolve matters of concern;_(2) requiring the CONTRACTOR to perform the work at no additional
fee until it is satisfactory; (3) suspending the delivery of further work to the CONTRACTOR for an
indefinite time; (4) withholding payment; or (5) terminating the Agreement as set forth in Section
7.8.
Project Schedule
Commence Project: September 30, 2002
Draft Report Submitted to City for Review: October 25, 2002
Final Report Submitted to City: October 31, 2002
Henwood Agreement
9/27/2002
09127l2002 13:33 FAX 760 323 8207 CITY OF PAU SPRINGS la o01
LINMEP.27.2002010:28RMMMWENWOOD ENERGY SV 10.048�',�
P
/w�Henwood Henwood Energy Drive,
Services, 100
�/ Z79 Gatevrdy Oalc Drive,Suite 700
Sacramento,CA 93833
pNanCH • Aus2mlla . Londan • Sacramento (Phone)916_569.0985
(Fax)916.569,0999
vnvw,henwoodeaergy.com
September 27, 2002
Mr. Troy Butzlaff
Assistant City Manager
City of Palm Springs
3200 E. Tahquitz Way
Palm Springs, CA 92262
Fie: Contract Service Agreement
Dear Troy:
4? As we discussed the other day, Henwood Energy Services is currently in tha final stages
V of a possible financial transaction that will result in the transfer in ownership of more than
25%of the present ownership to Global Energy Decisions, LLC (GED). To avoid being
In violation of Section 4.3 of the Contract Service Agreement,the City needl7 to give prior
written approval of such transfer,
As we discussed, the ownership transfer will not result In any changes to the services
provided by Henwood or the employees that are the basis of your decision to hire
Henwood. In fact, Henwood will continue to function as"a GED company'. As such,
you did not foresee any concerns the City would have with the transfer.
Please confirm your agreement that this transfer is acceptable to the City by counter-
signing this letter and returning a fully executed copy to me.
Since ly,
uglas Davie
Principal, enwood Energy Services, Inc.
f)
The City of Palm Springs hereby approves of the transfer of more that a 250/6 ownership
interest in Henwood to GED.
By; All
Name:
Title: tS �sL� _""'1�T�
Date: -2 T z-0o Z