HomeMy WebLinkAbout03897 - ARTHUR LYONS CONSULTANT MO 6088 Arthur Lyons
ectric Power Consulting
uREEMENT #3897
M06088, 1-14-98
CONTRACT SERVICES AGREEMENT Fun
ELECTRIC POWER CONSULTING
THIS CONTRACT SERVICES AGREEMENT (herein "Agree ent") ,
effective January 1, 1998, is made and entered into this day of
II ,LtdrLA 1998 by and between the CITY OF PALM SPRINGS, a
nicipal corporation, (herein "City") and Arthur Lyons (herein
Contractor") . 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.
1 .2 Contractor' s Proposal . The Scope of Services 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 indemnify,
F51\276\099999-3000\29113.1 01/13/98 (j,3 11
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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 under this 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.
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 under this 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 five
percent (5$) or less of the Contract Sum, or in the time to perform
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of one hundred eighty (180) days or less 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 "B" and 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 of 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 Forty Seven Thousand Two
Hundred Dollars ($47, 200) (herein "Contract Sum") , except as
provided in Section 1 . 8 . Compensation may include reimbursement
for actual and necessary expenditures, approved in advance by the
Contract Officer, except. as specified in the Schedule of
Compensation. The Contract Sum shall include the attendance of
Contractor at all project meetings and related City Council
Meetings reasonably deemed necessary by the City; Contractor shall
not be entitled to any additional compensation for attending said
meetings .
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 (1st) 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.
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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 the effective day of
this Agreement and shall perform all services established in the
"Schedule of Performance" attached hereto as Exhibit "D", if any,
and incorporated herein by this reference.
3 . 3 Force Majeu.re. 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 delay when 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.
4 . 0 COORDINATION OF WORK
4 . 1 Representative of Contractor. The following
principal of Contractor is hereby designated as being the principal
and representative of Contractor authorized to act in its behalf
with respect to the work specified herein and make all decisions in
connection therewith:
Arthur Lyons
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It is expressly understood that the experience, knowledge,
capability and reputation of the foregoing principal was a
substantial inducement for City to enter into this Agreement.
Therefore, the foregoing principal shall be responsible during the
term of this Agreement for directing all activities of this
Agreement. For purposes of this Agreement, the foregoing principal
may not be replaced nor may his responsibilities be substantially
reduced without the express written approval of City.
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 juris-
dictional 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
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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.
4 . 5 Noncompetition. During the entire term of this
Agreement, Contractor shall not, directly or indirectly, sell or
assist in the sales of any electric services to any customer,
whether residential or commercial, in the City of Palm Springs on
behalf of any Electric Service Provider ("Competitive Business") ,
other than Enron Corporation or FirstPoint California, Inc. , nor be
employed by, render services of any kind to, advise or receive
compensation in any form from, nor invest or participate in any
manner or capacity in, any entity or person which directly or
indirectly engages in a Competitive Business .
5. 0 INSURANCE, INDEMNIFICATION AND BONDS
5. 1 Insurance. The Contractor shall procure and
lmaintain, at its sole cost and expense, in a form and content
satisfactory to City, during the entire term of this Agreement
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including any extension thereof, the following policies of
insurance:
(a) Comprehensive General Liability Insurance. A
policy of comprehensive general liability insurance written on a
per occurrence basis. If the Contract Sum is $25, 000. 00 or less,
the policy of insurance shall be written in an amount not less than
either (i) a combined single limit of $500, 000. 00 or (ii) bodily
injury limits of $250, 000 . 00 per person, $500, 000 . 00 per occurrence
and $500, 000. 00 products and completed operations and property
damage limits of $100, 000. 00 per occurrence and $100, 000 . 00 in the
aggregate. If the Contract Sum is greater than $25, 000 . 00 but less
than or equal to $100, 000. 00, the policy of insurance shall be in
an amount not less than either (i) a combined single limit of
$1, 000, 000. 00 for bodily injury, death and property damage or (ii)
bodily injury limits of $500, 000 . 00 per person, $1, 000, 000. 00 per
occurrence and $1, 000, 000. 00 products and completed operations and
property damage limits of $500, 000. 00 per occurrence and
$500, 000. 00 in the aggregate. If the Contract Sum is greater than
$100, 000 . 00, the policy of insurance shall be in an amount not less
than $5, 000, 000. 00 combined single limit .
(b) Worker' s Compensation Insurance . A policy of
worker' s compensation insurance in such amount as will fully comply
with the laws of the State of California and which shall indemnify,
insure and provide legal defense for both the Contractor and the
City against any loss, claim or damage arising from any injuries or
occupational diseases occurring to any worker employed by or any
persons retained by the Contractor in the course of carrying out
the work or services contemplated in this Agreement .
(c) Automotive Insurance. A policy of comprehensive
automobile liability insurance written on a per occurrence basis in
an amount not less than either (i) bodily injury liability limits
of $250, 000 . 00 per person and $500, 000. 00 per occurrence and
property damage liability limits of $100, 000. 00 per occurrence and
$250, 000 . 00 in the aggregate or (ii) combined single limit
liability of $500, 000 . 00. Said policy shall include coverage for
owned, non-owned, leased and hired cars .
(d) Additional Insurance. Policies of such other
insurance, including professional liability insurance, as may be
required in the Special Requirements .
All of the above policies of insurance shall be primary
insurance and shall name the City, its officers, employees and
agents as additional insureds . The insurer shall waive all rights
of subrogation and contribution it may have against the City, its
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officers, employees and agents and their respective insurers. All
of said policies of insurance shall provide that said insurance may
not be amended or cancelled without providing thirty (30) days
prior written notice by registered mail to the City. In the event
any of said policies of insurance are cancelled, 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 or appropriate insurance binders evidencing the above
insurance coverages and said Certificates of Insurance 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 persons 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 policies of insurance that the
Contractor is required to maintain pursuant to this Section 5. 1 .
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 to persons or property, losses, costs,
penalties, obligations, errors, omissions or liabilities, (herein
"claims or liabilities" ) 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, 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
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incurred in connection therewith;
(b) Contractor will promptly pay any judgment rendered
against the City, 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 is 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 Performance Bond. Concurrently with execution of
this Agreement, Contractor shall deliver to City a performance bond
in the sum of the amount of this Agreement, in the form provided by
the City Clerk, which secures the faithful performance of this
Agreement, unless such requirement is waived by the Contract
Officer. The bond shall contain the original notarized signature
of an authorized officer of the surety and affixed thereto shall be
a certified and current copy of his power of attorney. The bond
shall be unconditional and remain in force during the entire term
of the Agreement and shall be null and void only if the Contractor
promptly and faithfully performs all terms and conditions of this
Agreement.
5. 4 Sufficiency 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 Rating Guide, The
Key Rating Guide or in the Federal Register, and only if they are
of a financial category Class VII or better, unless such
requirements are waived by the Risk Manager of the City due to
unique circumstances. In the event the Risk Manager of City ( "Risk
Manager") determines that the work or services to be performed
under this Agreement creates 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 by this
Section 5 may be changed accordingly upon receipt of written notice
from the Risk Manager; provided that the Contractor shall have the
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right to appeal a determination of increased coverage by the Risk
Manager to the City Council of City within 10 days of receipt of
notice from the Risk Manager.
6. 0 RECORDS AND REPORTS
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.
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 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, and 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
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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 of 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, and 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 by the injured party; provided that if the default is an
immediate danger to 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
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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
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 appear to be the basis for a
claim of lien, City may withhold from any payment due, without
liability for 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 nondefaulting 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 party' 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 Legal Action. 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 Liquidated Damages . Since the determination of
actual damages for any delay in performance of this Agreement would
be extremely difficult or impractical to determine in the event of
a breach of this Agreement, the Contractor and its sureties shall
be liable for and shall pay to the City the sum of
N/A ($ ) as liquidated
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damages for each working day of delay in the performance of any
service required hereunder, as specified in the Schedule of
Performance (Exhibit "D") . The City may withhold from any monies
payable on account of services performed by the Contractor any
accrued liquidated damages .
7 . 8 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
any time, with or without cause, upon thirty (30) 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
any time, with or without cause, upon sixty ( 60) 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 such as may be specifically approved by the
Contract Officer. 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 such
as may be approved by the Contract Officer, except as provided in
Section 7 . 3 . In the event of termination without cause pursuant to
this Section, the terminating party need not provide
non-terminating party with the opportunity to cure pursuant to
Section 7 .2 .
7 . 9 Termination for Default of Contractor. If
termination is due to the failure of the Contractor to fulfill its
obligations under this 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 setoff or partial payment of the
amounts owed the City as previously stated.
7 . 10 Attorneys ' Fees . If either party to this Agreement
is required to initiate or defend or made a party to any action or
proceeding in any way 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
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FS1\276\099999-3000\29113.1 01/13/9
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,
14
FS1\276\099999-3000\29113.1 01/13/98
first-class mail, in the ease 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, and in the case of
the Contractor, 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 Interpretat.ion. 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 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.
IN WITNESS WHEREOF, the parties have executed and entered into
15
FS1\276\099999-3000\29113.1 01/13/99
i •
this Agreement as of the date first written above.
ATTEST: CITY OF PALM SPRINGS,
a a m Co ation
By C� By.
q Clerk y Ma ager
APPROVED AS TO FORM: CONTRACTOR:
RUTAN & TUCKER
By: v✓�
Arthur Lyons
Power Consultant
646 Morongo Road
Davi J Aleshire Palm Springs, CA 92264
City Attorney (619) 864-9760
d?'db
16
FS1\276\099999-3000\29113.1 01/13/96
i •
EXHIBIT "A"
SCOPE OF SERVICES
The City of Palm Springs has become an "aggregator" of electric service for its
residents and businesses pursuant to the "direct access" provision of Assembly
Bill 1890 (AB 1890). AB 1890 was adopted unanimously by the California
Legislature and signed by the Governor in September, 1996. It amended the
Public Utilities Act so electric customers could purchase power from electricity
providers other than their current Electric utility. The City formed an alliance
with Portland General, now Enron, to make electric customer choice available
in Palm Springs, and to provide the City with economic development assistance.
To these ends, Contractor will:
1. Monitor events and legislation at the State and Federal levels, including the
California Public Utilities Commission, and report activities to the City that
have an effect on the City's efforts in providing power to its businesses and
residents.
2. Assist in coordinating and focusing the City's strategic efforts with The League
of California Cities and other statewide and local organizations involved in, or
affected by, the reregulation of the California electric utility industry to protect
and/or promote the City's interests.
3. Act as a public information contact relative to the City's electric service efforts,
respond to radio, television and other media and public requests and interviews.
4. Work with the City's selected wholesale power provider, Enron, to conduct
public information meetings to inform the public of the City's electric services
and the effects of AB 1890, the electric utility industry restructuring legislation,
as such meetings affect the; City's interests.
5. Assist in coordinating the City's efforts to aggregate electric load for the
community, and monitor and report on other utilities' and marketers' efforts in
the community and the Valley to aggregate load.
6. Attend and participate in City electric project meetings as needed and assist the
City and Enron/FirstPoint in strategy and planning efforts.
EXHIBIT "A"
TO CONTRACT SERVICES AGREEMENT
PAGE 1 OF 2
• •
EXHIBIT "A"
7. Assist the City and Enron/First Point in strategizing and pursuing efforts at the
FERC, as may be required or assigned by the Contract Officer.
8. Assist the City and Enron/FirstPoint in securing customers for the City's
electric aggregation program using forms and procedures required, pursuant to
the California Public Utilities Commission's rules and guidelines and approved
tariffs.
9. Assist with the implementation of the agreements and commitments contained in
Portland General's November 1, 1996 proposal to the City.
10. Participate on behalf of the City in negotiations with Enron/FirstPoint of other
contracts that may be necessary to implement the City's goal of providing
competitively priced electric power to the City's residents and businesses.
11. Advise the City in matters related to the City's Economic Development and
electric service efforts which are the subject of the City/FirstPoint California
Utility Services Agreement.
12. Perform assignments requested by the Contract Officer and the Power
Implementation Committee.
EXHIBIT "A"
TO CONTRACT SERVICES AGREEMENT
PAGE 2 OF 2
EXHIBIT "B"
SPECIAL REQUIREMENTS
Section 1 .2 Contractor" s Proposal. Shall not be applicable.
Section 3 .3 Force Majeure. Shall not be applicable.
Section 5. 1 (b) Worker' s Compensation Insurance. Shall not be
applicable.
Section 5.3 Performance Bond. Shall not be applicable.
Section 7 .7 Liquidated Damages . Shall not be applicable.
EXHIBIT "B"
TO CONTRACT SERVICES AGREEMENT
FS1\276\099999-3000\29113.1 12/30/97
EXHIBIT "C"
SCHEDULE OF COMPENSATION
The sum of Thirty Six Hundred Dollars ($3, 600) shall be paid each
month for a one year period beginning January 1, 1997, for services
identified on Exhibit "A, " Scope of Services.
Contractor shall pay all of his own telephone, postage, fax and
other office expenses incurred when contractor is operating out of
his home office.
Reimbursable expenses, in an amount not to exceed $4, 000, and which
require prior approval in accordance with Section 2. 1 of this
contract, are limited to the following:
1 . Travel expenses for travel outside the Coachella Valley
will be reimbursed at 31C per mile for automobile
mileage and actual cost of travel by common carrier,
supported by written evidence acceptable to the Contract
Officer.
2 . Reasonable and necessary lodging and meal expenses
related to travel outside the Coachella Valley will be
reimbursed at actual costs supported by written evidence
acceptable to the Contract Officer.
3. The cost to Contractor of Liability Insurance required
pursuant to Section 5.1 (a) of this agreement when such
coverage is acquired through the City' s authorized
SPARTA blanket program of insurance.
EXHIBIT "C"
TO CONTRACT SERVICES AGREEMENT
PAGE 1 OF 2
FS1\276\099999-3000\29113.1 12/30/97
Reimbursable expenses not: requiring prior approval, but not to
exceed the $4, 000 annual allowance referenced above, are limited to
the following:
1. Travel expenses for travel within Palm Springs and the
Coachella Valley will be reimbursed at 31C per mile for
automobile mileage supported by written mileage reports
acceptable to the Contract Officer.
For any additional services authorized pursuant to Section 1.8,
such services shall be paid at the rate of $ 20 per hour.
Pursuant to Municipal Utility Services Agreement No. 3764, one
hundred percent (100%) of the costs of this contract will be
reimbursed to the City by FirstPoint California, Inc.
EXHIBIT "C"
TO CONTRACT SERVICES AGREEMENT
PAGE 2 OF 2
FS1\276\099999-3000\29113.1 12/30/91
EXHIBIT "D"
SCHEDULE OF PERFORMANCE
Performance requirements for services in Exhibit "A" - Scope of
Services, which services are ongoing in nature, will be monitored
by the Contract Officer.
EXHIBIT "D"
TO CONTRACT SERVICES AGREEMENT
FS1\276\099999-3000\29113.1 12/30/97
CI'PY OF PALM s'PRINGS • ` �-�"
SERVICE PROVIDERS AND
ARTISAN TRADE ACTIVITIES
(SPARTA) GENERAL LIABILITY PS96-00001
PRODUCER: PUBLIC ENTITY (ADDITIONAL INSURED) :
CITY OF PALM SPRINGS
AKASAKA, ORTIZ & VARELA CITY CONTROLLED DEPT.
INSURANCE ASSOCIATES, INC. NANCY MC INTOSH, RISK MANAGER
333 CITY BLVD WEST, SUITE 200 3200 E. TAHQUITZ CANYON WAY
ORANGE CA 92868-0000 PALM SPRINGS CA 92262-DODO
(800) 420-0555 FAX: (714) 938-1420 (619) 323-8218 FAX: (619) 322-8323
LICENSE NUMBER: 05B7415
NAMED INSURED (CONTRACTOR) : DESCRIPTION OF OPERATIONS:
Name ART LYONS CONSULTING / HELPING TO NEGOTIATE
CONTRACTS
Address: 646 MORONGO RD
PALM SPRINGS CA 92264-0000
Hazard I(X) II( ) III( )
Contact Name: ART LYONS Contract Number:
Contract Value : $43,200.00
Telephone (619) 864-9760 FAX: (619) 322-1833 Coverage Period: 2/10/97 To: 2/10/98
:-Lal C,Ll fic.te Charge: $025.13
New *Extended( ) (Fully Earned)
This Certificate of Insurance certifies that coverage is provided for the contractor by the master policy indicated below.
Nothwithstanding any requirements, terms or conditions or any contract or other document with respect to which this
certificate may be issued or may pertain, the insurance afforded by the policy described herein is subject to all the terms,
conditions and exclusions of such policy, (A copy of the policy is available upon written request.) This coverage applies
only to the designated contract noted above and does not extend to any other activities or work performed by the holder.
INSURANCE CARRIER: ESSEX INSURANCE COMPANY
MASTER POLICY NUMBER: 3CAS883
EFFECTIVE DATE: 12/ 1/96 TO:
COMMERCIAL GENERAL LIABILITY *This certificate is an
General Aggregate Limit $ 2,000,000 extension of certificate
Products & Completed Operations $ 1,000,000
Personal & Advertising Injury $ 1,000,000 Number:
Each Occurrence Limit $ 1,000,000
Fire Damage (any one fire) $ 50,000 Date
Medical Payments (any one person) $ EXCLUDED
Deductible $ 5,000 Including loss adjustment expense
THIS INSURANCE COVERS ONLY THE CONTRACT NOTED ABOVE. IT DOES NOT APPLY TO ANY OTHER
WORK OR ACTIVITY OF THE NAMED INSURED.
Above premium/fees include 3.35% surplus lines association taxes & fees and a service charge. Coverage is primary and not
contributing with any insurance maintained by the City of Palm Springs. The limits of insurance apply to each insured by
this policy as if a separate policy of insurance had been issued for that insured. Coverage is limited to the designated
^neY"arM1 nnh on ahi+�)o
.,Who is insured" is amended to include, as an insured, the person or organization shown in this schedule, but for
liability, claims, loss or expense arising out of your negligence in the conduct of your operation(s) designated above.
ADDITIONAL INSURED(S) :
IMPORTANT CLAIMS REPORTING INFORMATION:
If you have knowledge of a claim arising from your operation or have received legal notification of a claim against you or
your products, Akasaka, Ortiz & Varela should be notified at once. You should notify their claims department directly by
calling 1-800-420-0555. Please be prepared to provide the master policy number and your certificate number. A claims
representative will assist you in the reporting process. Please remember that prompt claims reporting is a requirement.
Allow the company to handle claims for you. Do not attempt to resolve claims issues on your own.
EXCLUSIONS:
Absolute pollution, asbestos, subsidence, employment related practices, ind. contractors, lead paint, assault & battery,
occupation disease, professional, punitive damages, cross liability, liquor, employees or independent contractors.
AUTHORIZED REPRESENTATIVE: James M. Yates )L �
DATE ISSUED: 2/10/97
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