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HomeMy WebLinkAboutNorthern California Power Agency (NCPA) 2010-01-01A INC, NORTHERN CALIFORNIA POWER AGENCY PROFESSIONAL SERVICES AGREEMENT BETWEEN NORTHERN CALIFORNIA POWER AGENCY AND THE CITIES OF BIGGS, GRIDLEY, HEALDSBURG AND UKIAH This Professional Services Agreement ("Agreement") is made by and between the NORTHERN CALIFORNIA POWER AGENCY ("NCPA"), a joint public powers agency with offices located at 651 Commerce Drive, Roseville, California, and the cities of Biggs, Gridley, Healdsburg and Ukiah (such members each being a "Contracting Member" and jointly referred to as "Contracting Members"). NCPA and the Contracting Members are together sometimes referred to herein individually as a "Party" and collectively as "the Parties"). The Agreement is made as of 2010 (the "Effective Date") in Roseville, California. Section 1. RECITALS This Agreement is entered into based on the following facts, among others: 1.1 WHEREAS, NCPA is a public agency created by a joint powers agreement established under California law for the purpose of assisting its members in the efficient use of their common powers; 1.2 WHEREAS, the American Recovery and Reinvestment Act was signed into law by President Obama in February 2009, providing $787 billion for a variety of programs designed to create jobs, address the unprecedented slowdown in the U.S. economy, and build a foundation for long-term economic growth; and 1.3 WHEREAS, California expects to receive approximately $85 billion from the Act, with $3 billion targeted for energy-related programs; and 1.4 WHEREAS, the California Energy Commission ("CEC"), as the State's designated energy office, has been allocated more than $30 million of funding available under its Energy Efficiency and Conservation Block Grant program to help small cities and counties install cost- effective energy efficiency projects that reduce energy use and greenhouse gases; and 1.5 WHEREAS, Biggs, Healdsburg and Ukiah stand to receive approximately $167,927 of funding under this program. Gridley applied for and received a grant from the CEC separately; and 1.6 WHEREAS, each Contracting Member seeks to maximize the use of its funding by minimizing administrative costs and reporting responsibilities through a variety of joint action activities offered through its membership with the NCPA; and 1.7 WHEREAS, the CEC has articulated that applicants may work with one another to share and leverage internal resources, and that NCPA, with written authorization from the Contracting Members, may receive a funding award and manage such funding on behalf of all collaborating applicants; and 1.8 WHEREAS, Contracting Members desire that NCPA handle the administrative and reporting aspects of the CEC Grant and agree to comply with the terms of the CEC grant and agree to indemnify NCPA for any failure to comply with the terms of the CEC grant; and 1.9 WHEREAS, Article III, section 3 of the "Amended and Restated Northern California Power Agency Joint Powers Agreement" (as amended and effective January 1, 2008) (hereinafter "JPA") entitled "Powers and Functions" provides that none of the debts, liabilities or obligations of NCPA shall be the debts, liabilities or obligations of any of the members of NCPA unless assumed in a particular case by resolution of the governing body of the member to be charged." Notwithstanding the foregoing, Article V, section 1 of the JPA entitled "General Provisions" provides that "[t]he governing Commission of NCPA is authorized to procure public liability and other insurance as it deems advisable to protect NCPA and each of the parties hereto, charging the cost thereof to the operating costs of NCPA"; and 1.10 WHEREAS, Contracting Members desire to secure NCPA's Services under this Agreement in a manner that balances its interests and the interests of other NCPA members with the ongoing financial viability and professional responsibilities of NCPA. Accordingly, Contracting Members desire to secure NCPA's Services under this Agreement by accepting a limited insurance based recourse against NCPA, with the option of procuring additional insurance at Contracting Members' sole expense, thereby insuring that NCPA will substantially limit its risk for the provision of such Services which, in turn, allocates risks back to the Contracting Members in the event NCPA is not adequately insured. NOW THEREFORE, in consideration of the mutual covenants and promises set forth, NCPA and Contracting Members agree as follows: Section 2. DEFINITIONS Whenever used in this Agreement with initial capitalization, these terms shall have the following meanings as applicable, whether in the singular or plural: 2.1 "Good Utility Practice" shall mean any of the practices, methods and acts engaged in or approved by a significant portion of the electric utility industry during the relevant time period, or any of the practices, methods and acts which, in the exercise of reasonable judgment in light of the facts known at the time the decision was made, could have been expected to accomplish the desired result of the lowest reasonable cost consistent with good business practices, reliability, safety and expedition. Good Utility Practice is not intended to be limited to the optimum practice, method or act to the exclusion of all others, but rather to be acceptable practices, methods, or acts generally accepted in the region and consistently adhered to by the electric utility industry. 2.2 "NCPA Members" shall mean the signatories to the JPA or those agencies which have executed an Associate Member Agreement with NCPA. Section 3. SERVICES TO BE PROVIDED; AUTHORIZED REPRESENTATIVES; STANDARD OFPERFORMANCE 3.1 This Agreement is entered into by the Parties in order for NCPA to provide services to Contracting Members as described in Exhibit A hereto ("Services"). 3.2 The following are the Authorized Representatives of the parties for contract administration purposes under this Agreement: Jane Dunn Cirrincione Assistant General Manager Legislative & Regulatory Affairs Northern California Power Agency 651 Commerce Drive Roseville, CA 95678 (916) 781-4203 (916) 782-2191 FAX iane.cirrincioneOncpa.com Pete Carr City of Biggs 465 C Street PO Box 307 Biggs, CA 95917 (530) 868-5493 (530) 868-5239 FAX Biggs1 a(Dbiggs-ca.gov Terry Crowley City of Healdsburg 401 Grove Street Healdsburg, CA 95448 (707) 431-3346 (707) 431-3321 FAX tconn(c)_ci.healdsburq.ca.gov Mel Grandi City of Ukiah 300 Seminary Street Ukiah, CA 95482 (707) 463-6295 (707) 463-6740 FAX mgrandi@cityofukiah.com 3 Rob Hickey City of Gridley 685 Kentucky Street Gridley, CA 95948 (530) 846-5695 (530) 846-3229 FAX rhickey@gridley.ca,us No Authorized Representative is authorized to amend any provision of this Agreement except in accordance with Section 12.16. 3.3 Standard of Performance. NCPA shall perform all Services required pursuant to this Agreement in the manner and according to the standards observed by a competent practitioner of the profession in which NCPA is engaged in the geographical area in which NCPA practices its profession. NCPA shall prepare all work products required by this Agreement in a professional manner and shall conform to the standards of quality normally observed by a person practicing in NCPA'S profession. 3.4 Assignment of Personnel. NCPA shall assign only competent personnel to perform Services pursuant to this Agreement. In the event that Contracting Members, in their sole discretion, at any time during the term of this Agreement, desire the reassignment of any such persons, NCPA shall, immediately upon receiving notice from Contracting Member of such desire of Contracting Member, reassign such person or persons. 3.5 Time. NCPA shall devote such time to the performance of Services pursuant to this Agreement as may be reasonably necessary to meet the standard of performance provided in Section 3.3, above and to satisfy NCPA's obligations hereunder. Section 4. TERM AND TERMINATION 4.1 Authorization to Perform Services. NCPA is not authorized to perform any initial Services or incur any costs whatsoever under the terms of this Agreement until its receipt of a written applicable authorization from Contracting Members' general manager, utility director or the Contracting Member's equivalent confirming Contracting Members' authority to enter into this Agreement. 4.2 Term. The term of this Agreement shall begin on the Effective Date and shall end on or before March 31, 2012. 4.3 Early Termination. This Agreement may be terminated by either party, upon 30 days written notice to all Parties ("Notice of Termination"). To be effective, the Notice of Termination must be executed by each Contracting Member. Upon Notice of Termination, neither Party shall have any further obligations under this Agreement except as otherwise set forth in Section 5.7 regarding the survival of defense and indemnity obligations. 4 Section 5. INDEMNITY AND INSURANCE 5.1 Limitation of NCPA's Liability. 5.1.1 Except as provided in this section 5.1, NCPA shall not at any time be liable for any injury or damage occurring to Contracting Members or any other person or property from any cause whatsoever arising out of this Agreement. 5.1.2 The provisions of section 5.1.1 shall not apply where the injury or damage occurring to Contracting Members is caused by the negligence or willful misconduct of NCPA or of any employee, agent or contractor of NCPA, and provided that any liability under this subsection is limited to the extent of the actual coverage and coverage limits of the insurance policies described in this Section 5. 5.1.3 Notwithstanding Section 5.1.2 above, the Contracting Members agree to reimburse NCPA, in a timely manner, for all deductibles and/or self-insured retentions payable for any claim, liability or damage arising out of this Agreement. 5.2 Indemnification of NCPA. Except as specified in Section 5.1.2 above, Contracting Members shall, at their sole cost and expense, indemnify and hold harmless NCPA and all associated, affiliated, allied, member and subsidiary entities of NCPA, now existing or hereinafter created, and their respective officers, boards, commissions, employees, agents, attorneys, and contractors (hereinafter referred to as "Indemnitees"), from and against any and all liability, obligation, damages, penalties, claims, liens, costs, charges, losses and expenses (including, without limitation, reasonable fees and expenses of attorneys, expert witnesses and consultants), which may be imposed upon, incurred by or be asserted against the Indemnitees arising out of this Agreement. 5.3 Defense of Indemnitees. In the event any action or proceeding shall be brought against the Indemnitees by reason of any matter for which the Indemnitees are indemnified hereunder, Contracting Members shall, upon reasonable prior written notice from any of the Indemnitees, at Contracting Members' sole cost and expense, resist and defend the same with legal counsel mutually selected by Indemnitee and the Contracting Members, unless mutual selection of counsel is expressly prohibited by an applicable insurance policy; provided however, that neither Indemnitee nor Contracting Members shall admit liability in any such matter or on behalf of the other without express written consent, which consent shall not be unreasonably withheld or delayed, nor enter into any compromise or settlement of any claim for which Indemnitees are indemnified hereunder without prior express written consent. The Contracting Members' duty to defend shall begin upon receipt of a written notice identifying with specificity the allegations that give rise to this duty to defend. 5.4 Notice. The Parties shall give each other prompt notice of the making of any claim or the commencement of any action, suit or other proceeding covered by the provisions of this Section 5. 5.5 Insurance. During the term of the Agreement and prior to beginning any work under this Agreement, NCPA shall maintain, or cause to be maintained, in full force and effect, and at its sole cost and expense, the types and limits of liability insurance as are annually approved by the governing Commission of NCPA. The types and limits of liability insurance that are applicable to this Agreement are evidenced in policy summaries, which are attached hereto as Exhibit B. NCPA warrants and represents that the types of liability insurance and coverage limits shown in Exhibit B are in full force and effect and shall remain so during the term of this Agreement unless NCPA gives prior written notification (of not less than 30 days) of modification, cancellation or rescission of such coverage. 5.6 Contracting Members' Acknowledgment of Option to Secure Additional Insurance. The Contracting Members acknowledge that there are limitations on NCPA's liability to the Contracting Members under this Section 5 and that the Contracting Members may need to purchase additional insurance of their own to cover the additional risks and the potential additional liabilities it is assuming under this Agreement. Contracting Members agree that it will cause, with respect to any additional insurance it obtains or which is otherwise available to Contracting Members, its insurers to issue an endorsement providing a waiver of subrogation rights as to Indemnitees. 5.7 Survival of Obligations. The defense and indemnity obligations of Section 5 shall survive the termination of this Agreement. Section 6. STATUS OF NCPA; FACILITIES AND EQUIPMENT 61 Independent Contractor. At all times during the term of this Agreement, NCPA shall be an independent contractor and shall not be an employee of Contracting Members. Contracting Members shall have the right to control NCPA only insofar as the results of NCPA'S Services rendered pursuant to this Agreement and assignment of personnel pursuant to Section 3.4; however, otherwise Contracting Members shall not have the right to control the means by which NCPA accomplishes Services rendered pursuant to this Agreement. Notwithstanding any other agency, state, local or federal policy, rule, regulation, law, or ordinance to the contrary, NCPA and any of its employees, agents, and subcontractors providing Services under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any and all claims to, any compensation, benefit, or any incident of employment by Contracting Members, including but not limited to eligibility to enroll in the California Public Employees Retirement System (PERS) as an employee of Contracting Members and entitlement to any contribution to be paid by Contracting Members for employer contributions and/or employee contributions for PERS benefits. 6.2 Facilities and Equipment. The facilities and equipment that may be necessary to perform the Services required by this Agreement shall be provided as follows: None. Section 7. LEGAL REQUIREMENTS 7.1 Governinq Law. The laws of the State of California shall govern this Agreement, without regard for the choice of law doctrine. 7.2 Compliance with Applicable Laws. NCPA and any subcontractors shall comply with all laws applicable to the performance of the Services hereunder. 7.3 Other Governmental Regulations. To the extent that this Agreement may be funded by fiscal assistance from another governmental entity, NCPA and any subcontractors shall comply with all applicable rules and regulations to which Contracting Members are bound by the terms of such fiscal assistance program. 7.4 Licenses and Permits. NCPA represents and warrants to Contracting Members that NCPA and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals of whatsoever nature that is legally required to practice their respective professions. NCPA represents and warrants to Contracting Members that NCPA and its employees, agents, any subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions. 7.5 Nondiscrimination and Equal Opportunity. NCPA shall not discriminate, on the basis of a person's race, religion, color, national origin, age, physical or mental handicap or disability, medical condition, marital status, sex, or sexual orientation, against any employee, applicant for employment, subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or programs provided by NCPA under this Agreement. NCPA shall comply with all applicable federal, state, and local laws, policies, rules, and requirements related to equal opportunity and nondiscrimination in employment, contracting, and the provision of any services that are the subject of this Agreement, including but not limited to the satisfaction of any positive obligations required of NCPA thereby. NCPA shall include the provisions of this Subsection in any subcontract approved by each Contracting Member's Contract Administrator or this Agreement. Section 8. KEEPING AND STATUS OF RECORDS. 8.1 Records Created as Part of NCPA's Performance. All reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that NCPA prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the Contracting Members. NCPA hereby agrees to deliver those documents to the Contracting Members upon termination of the Agreement. It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this Agreement are prepared specifically for the Contracting Members and are not necessarily suitable for any future or other use. Contracting Members and NCPA agree that, until final approval by Contracting Members, all data, plans, specifications, reports and other documents are confidential and will not be released to third parties without prior written consent of both Parties, except as may otherwise be required by applicable law. 8.2 NCPA's Books and Records. NCPA shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for Services or expenditures and disbursements charged to the Contracting Members under this Agreement for a minimum of three (3) years, or for any longer period required by law, from the date of final payment to the NCPA to this Agreement. 8.3 Inspection and Audit of Records. Any records or documents that Section 8.2 of this Agreement requires NCPA to maintain shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of the Contracting Members. Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), the Agreement shall be subject to the examination and audit of the State Auditor, at the request of Contracting Members or as part of any audit of the Contracting Members, for a period of three (3) years after final payment under the Agreement. 8.4 Confidential Information and Disclosure. During the term of this Agreement, either party ("Disclosing Party") may disclose confidential, proprietary or trade secret information (the "Information"), to the other party ("Receiving Party"). All such Information made available in a tangible medium of expression (such as, without limitation, on paper or by means of magnetic tapes, magnetic disks or other computer media) shall be marked in a prominent location to indicate that it is the confidential, proprietary and trade secret information of Disclosing Party at the time of disclosure to Receiving Party. Receiving Party shall hold Disclosing Party's Information in confidence and shall take all reasonable steps to prevent any unauthorized possession, use, copying, transfer or disclosure of such Information. Receiving Party shall not attempt to reverse engineer or in any manner create any product or information which is similar in appearance to or based on the Information provided by Disclosing Party. Receiving Party shall not disclose Disclosing Party's Information to any person other than Receiving Party's employees, agents, contractors and subcontractors who have a need to know in connection with this Agreement. Receiving Party's confidentiality obligations hereunder shall not apply to any portion of Disclosing Party's Information which: (a) Has become a matter of public knowledge other than through an act or omission of Receiving Party; (b) Has been made known to Receiving Party by a third party in accordance with such third party's legal rights without any restriction on disclosure; (c) Was in the possession of Receiving Party prior to the disclosure of such Information by Disclosing Party and was not acquired directly or indirectly from the other party or any person or entity in a relationship of trust and confidence with the other party with respect to such Information; (d) Receiving Party is required by law to disclose; or (e) Has been independently developed by Receiving Party from information not defined as "Information" in this Agreement, as evidenced by Receiving Party's written records. Receiving Party shall return or destroy Disclosing Party's Information (including all copies thereof) to Disclosing Party promptly upon the earliest of any termination of this Agreement or the Disclosing Party's written request. Notwithstanding the foregoing, Receiving Party may retain one 8 copy of such Information solely for archival purposes, subject to the confidentiality provisions of this Agreement. The parties understand that each party is a public entity and is subject to the laws that may compel either to disclose information about the other's business. Section 9. MISCELLANEOUS PROVISIONS 9.1 Attorneys' Fees. If a Party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provisions of this Agreement, the prevailing Party shall be entitled to reasonable attorneys' fees in addition to any other relief to which that Party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose. 9.2 Venue. In the event that either party brings any action against the other under this Agreement, the Parties agree that trial of such action shall be vested exclusively in the state courts of California in the County of Placer or in the United States District Court for the Eastern District of California. 9.3 Severability. If any provision of this Agreement shall be determined by a court of competent jurisdiction to be invalid, void or unenforceable, or if any provision of this Agreement is rendered invalid or unenforceable by federal or state statute or regulation, but the remaining portions of the Agreement can be enforced without failure of material consideration to any Party, then the remaining provisions shall continue in full force and effect. To that end, this Agreement is declared to be severable. Provided, however, that in the event any provision is declared to be invalid, void or unenforceable, either Party may terminate this Agreement upon ten (10) days written notice given within five (5) days of receipt of notice of final entry of judgment. 9.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement. 9.5 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of and shall apply to and bind the successors and assigns of the Parties. 9.6 Use of Recycled Products. NCPA shall endeavor to prepare and submit all reports, written studies and other printed material on recycled paper to the extent it is available at equal or less cost than virgin paper. 9.7 Conflict of Interest. NCPA shall not employ any Contracting Members' official or employee in the work performed pursuant to this Agreement. No officer or employee of Contracting Members shall have any financial interest in this Agreement that would violate California Government Code Sections 1090 et seq. 9.8 Notices. Unless this Agreement requires otherwise, any notice, demand or request provided for in this Agreement, or served, given or made shall become effective when delivered in person, or sent by registered or certified first class mail, to the persons specified below: 9 To NCPA: Jane Dunn Cirrincione Assistant General Manager Legislative & Regulatory Affairs Northern California Power Agency 651 Commerce Drive Roseville, CA 95678 With a copy to: Michael F. Dean General Counsel, Northern California Power Agency c/o Meyers Nave 555 Capitol Mall, Suite 1200 Sacramento, CA 95814 To Contract Members: Pete Carr City of Biggs 465 C Street PO Box 307 Biggs, CA 95917 (530) 868-5493 (530) 868-5239 FAX Biggs1 @biggs-ca.gov Rob Hickey City of Gridley 685 Kentucky Street Gridley, CA 95948 (530) 846-5695 (530) 846-3229 FAX rhickey@gridley.ca.us Terry Crowley City of Healdsburg 401 Grove Street Healdsburg, CA 95448 (707) 431-3346 (707) 431-3321 FAX tconn@ci.healdsburg.ca.gov 10 Mel Grandi City of Ukiah 300 Seminary Street Ukiah, CA 95482 (707) 463-6295 (707) 463-6740 FAX mgrandi@cityofukiah.com Whenever it is required, permitted, or desired in this Agreement that written notice or demand be given by any Party to any other Party, such notice or demand may be either personally served or sent by United States Mail, or facsimile. Notice shall be deemed to have been given when personally served, when deposited in the United States Mail, certified or registered with postage prepaid and properly addressed, or when transmitted by facsimile provided however, notices delivered by facsimile shall only be effective if delivered during regular business hours on a day that is considered a regular business day for NCPA by the involved Parties. 9.9 Integration; Incorporation. This Agreement, including all the Exhibits attached hereto, represents the entire and integrated agreement between Contracting Members and NCPA relating to the subject matter of this Agreement, and supersedes all prior negotiations, representations, or agreements, either written or oral. All Exhibits attached hereto are incorporated by reference herein. 9.10 Dispute Resolution. If any dispute arises between the Parties that cannot be settled after engaging in good faith negotiations, Contracting Members and NCPA agree to resolve the dispute in accordance with the following: 9.10.1 Each Party shall designate a senior management or executive level representative to negotiate any dispute; 9.10.2 The representatives shall attempt, through good faith negotiations, to resolve the dispute by any means within their authority. 9.10.3 If the issue remains unresolved after ONE HUNDRED AND TWENTY (120) days of good faith negotiations, despite having used their best efforts to do so, either Party may pursue whatever other remedies may be available to it. 9.10.4 This informal resolution process is not intended to nor shall be construed to change the time periods for filing a claim or action specified by Government Code § 900, et seq. 9.11 Other Agreements. This Agreement is not intended to modify or change any other agreement between any of the Parties, individually or collectively. 9.12 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement. 9.13 Obligations of Contracting Members Joint and Several; No Joint Venture. The duties, obligations and liabilities of the Contract Members, including the obligations to make payments to NCPA, are intended to be joint and several. Provided that nothing contained in this Agreement shall be construed to create an association, trust, partnership or joint venture or to impose a trust or partnership duty, obligation or liability on or with regard to the Contracting Members. 9.14 Effect of Section Headings. Section headings and subheadings appearing in this Agreement are inserted for convenience only and shall not be construed as interpretation of text. 9.15 Authority of Signatories. The signatories hereby represent that they have been appropriately authorized to execute this Agreement on behalf of the Party for whom they sign. 9.16 Amendments. The Parties may amend this Agreement only by a writing signed by all the Parties following each Party's receipt of written authorization, as described in Section 4.1 above, which authorization shall be condition precedents to any amendments of this Agreement and shall be attached as exhibits to this Agreement. The Parties have executed this Agreement as of the Effective Date. Northern California Power Agency JAMES H. POPE, General Manager Attest: Assistant Secretary of the Commission Approved as to Form: Rachel M. Feiertag For General Counsel 12 CONTRACTING MEMBERS: Each member will have a separate signature page due to diverse internal contract processes. CITY OF BIGGS By: Its: CITY OF HEALDSBURG By: Its: CITY OF GRIDLEY By: Its: CITY OF UKIAH By: Its: 13 EXHIBIT A Scope of Services NCPA is authorized to accept and manage the CEC grant, including the exchange of money associated with the installation of the equipment that is identified in the grant application and including requesting reimbursement on behalf of Biggs, Healdsburg and Ukiah under this Agreement. Gridley has a separate CEC grant that it manages on its own. However, under this Agreement NCPA will provide Gridley with support, including, but not limited to reporting services, to assist Gridley in managing its CEC grant. 14 EXHIBIT B Insurance Maintained by NCPA See the attached Summaries of the following insurance coverage: WORKERS' COMPENSATION INSURANCE $1,000,000 EXCESS LIABILITY INSURANCE AUTOMOBILE INSURANCE $35,000,000 $1,000,000 ERRORS & OMISSIONS INSURANCE $10,000,000 1514403.2 15