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16-040 Silicon Valley Clean Energy Authority, Administrative Services and ReimbursementAMENDMENT to AGREEMENT BETWEEN THE SILICON VALLEY CLEAN ENERGY AUTHORITY AND THE CITY OF CUPERTINO FOR ADMINISTRATIVE SERVICES AND REIMBURSEMENT This AMENDMENT to AGREEMENT, effective November 15, 2016, is by and between the SILICON VALLEY CLEAN ENERGY AUTHORITY, an independent joint powers authority ("Authority"), and CITY OF CUPERTINO, a municipal corporation ("City") (collectively referred to as the "Parties"). RECITALS: A. Authority is an independent joint powers authority duly organized under the provisions of the Joint Exercise of Powers Act of the State of California (Government Code Section 6500 et seq .) ("Act") with the power to conduct its business and enter into agreements . B. The City of Cupertino has been a sponsoring partner for the Silicon Valley Community Choice Energy Partnership ("SVCCEP"), which conducted outreach and technical study to evaluate the feasibility of a multi-jurisdictional community choice aggregation program in Santa Clara County and led the collaboration to form the Authority. C. The City of Cupertino provided certain administrative services to conduct the work of SVCCEP, including executive recruitment, outreach project management, consultant management, brand and materials development, and stakeholder meeting coordination and facilitation . D. The Authority seeks assistance with a variety of administrative functions as the Authority convenes, builds its operational capacity, and hires its own staff. E. Authority and City entered into an agreement for services and reimbursement upon the terms and conditions outlined in original Agreement dated April 1, 2016 NOW, THEREFORE, the Parties mutually agree as follows: The terms of the original Agreement on April 1, 2016, allowed for an extension of up to a period of six months if mutually agreed by the Parties in writing by November 15, 2016 . This Amended Agreement shall extend the term of the agreement by a period of two months, and shall terminate on January 31, 2017. Services to be performed will remain the same, and there is no change to reimbursement of services or total not to exceed amount of one hundred fifty-five thousand dollars ($155,000). IN WITNESS WHEREOF, the parties have caused the Amended Agreement to be executed as of the date set forth above . CITY OF CUPERTINO SILICON VALLEY CLEAN ENERGY AUTHORITY rporation A Joint Powers Authority ~/L By ~J~ , By Title ~!1/Jrr , Title rED - Date Date 1\/\~2.0 I la AGREEMENT BETWEEN THE SILICON VALLEY CLEAN ENERGY AUTHORITY AND THE CITY OF CUPERTINO FOR ADMINISTRATIVE SERVICES AND REIMBURSEMENT This AGREEMENT, effective April 1, 2016, is by and between the SILICON VALLEY CLEAN ENERGY AUTHORITY, an independent joint powers authority ("Authority"), and CITY OF CUPERTINO, a municipal corporation ("City") (collectively referred to as the "Parties"). RECITALS: A. Authority is an independent joint powers authority duly organized under the provisions of the Joint Exercise of Powers Act of the State of California (Government Code Section 6500 et seq.) ("Act") with the power to conduct its business and enter into agreements. B. The City of Cupertino has been a sponsoring partner for the Silicon Valley Community Choice Energy Partnership ("SVCCEP"), which conducted outreach and technical study to evaluate the feasibility of a multi-jurisdictional community choice aggregation program in Santa Clara County and led the collaboration to form the Authority. C . The City of Cupertino provided certain administrative services to conduct the work of SVCCEP, including executive recruitment, outreach project management, consultant management, brand and materials development, and stakeholder meeting coordination and facilitation. D. The Authority seeks assistance with a variety of administrative functions as the Authority convenes, builds its operational capacity, and hires its own staff. E. Authority and City desire to enter into an agreement for services and reimbursement upon the terms and conditions herein. NOW, THEREFORE, the Parties mutually agree as follows: 1. TERM The term of this Agreement shall commence on April 1, 2016, and shall terminate on November 30, 2016, unless terminated earlier as set forth herein. The Agreement may be extended for a period of six months if mutually agreed by the Parties in writing by November 15, 2016. 2. SERVICES TO BE PERFORMED City shall perform the services set forth m Exhibit "A," which is attached hereto and incorporated herein by this reference. 3. REIMBURSEMENT FOR SERVICES City shall be reimbursed for costs described in subsections (b) and (c) below incurred by City for services performed pursuant to this Agreement, in a total amount not to exceed one hundred fifty-five thousand dollars ($155 ,000.00). (a) City shall provide a monthly invoice to Authority providing a breakdown of the costs and expenses incurred by City in providing services pursuant to this Agreement. For services performed by Pag e I of5 City employees , the invoice shall provide an itemized breakdown of the time spent by each employee . (b) City shall be reimbursed for staff time costs inclusive of salaries and benefits , but not overhead charges. (c) City shall be reimbursed for expenses as agreed upon in advance by Authority 's Representative. (d) Authority shall pay proper invoices within 30 days ofreceipt. 4. STANDARD OF CARE City agrees to perform all services required by this Agreement in a manner commensurate with the standards of a reasonable professional having specialized knowledge and expertise in the services provided under this Agreement. 5. EMPLOYEES OF CITY NOT EMPLOYEES OF AUTHORITY Under no circumstances shall the employees of City be considered employees of Authority. City shall be solely responsible and liable for paying all compensation and benefits owed to its employees for the services provided by City under this Agreement. 6. NO RECOURSE AGAINST CONSTITUENT MEMBERS OF AUTHORITY. Authority is organized as a Joint Powers Authority in accordance with the Joint Powers Act of the State of California (Government Code Section 6500 et seq.) pursuant to a Joint Powers Agreement dated March 31, 2016 , and is a public entity separate from its constituent members. Authority shall solely be responsible for all debts , obligations and liabilities accruing and arising out of this Agreement. City shall have no rights and shall not make any claims, take any actions or assert any remedies against any of Authority's constituent members in connection with this Agreement. 7. HOLD HARMLESS AND INDEMNIFICATION Each Party shall defend , indemnify and hold harmless the other Party (including its officers , employees and agents) against any claim , loss or liability arising out of the performance of this Agreement by such Party. Nothing contained herein shall be construed as a waiver of any immunities or defenses that a Party may have under applicable provisions of the law, including the provisions of the California Tort Claims Act (Government Code Section 801 et seq.). This mutual indemnification agreement is adopted pursuant to Government Code Section 895.4 and in lieu of and notwithstanding the pro rata risk allocation which might otherwise be imposed between the parties pursuant to Government Code Section 895 .6. This provision shall survive expiration or termination of this Agreement. 8. PROHIBITION AGAINST TRANSFERS City shall not assign, sublease, hypothecate, or transfer this Agreement, or any interest therein , directly or indirectly, by operation of law or otherwise, without prior written consent of Authority. Any attempt to do so without such consent shall be null and void, and any assignee, sublessee, pledgee, or transferee shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. 9. SUBCONTRACTOR APPROVAL Unless prior written consent from Authority's Representativ e is obtained, City shall only use its officers and employees in the performance of this Agreement. Page 2 of S 10. PARTY REPRESENTATIVES The Chief Executive Officer shall represent the Authority in all matters pertaining to the services to be performed under this Agreement. The City Manager or Assistant City Manager shall represent City in all matters pertaining to the services to be performed under this Agreement. 11. CONFIDENTIAL INFORMATION City shall maintain in confidence and not disclose to any third party any confidential information or records not subject to disclosure under the California Public Records Act that are prepared or generated by City or provided to City by Authority in the performance of this Agreement. 12. RECORDS City shall keep and maintain full and complete documentation and accounting records concerning all services performed under this Agreement and shall make such documents and records available to Authority for inspection and copying at any reasonable time. City shall maintain such records for a period of five (5) years following completion of work hereunder. Any reports, data, documents or other records prepared by City for Authority under this Agreement shall be considered the records of Authority and shall not be destroyed without the express written approval of Authority. All financial and accounting records shall be prepared and maintained in accordance with generally accepted accounting principles and all applicable laws. 13. NOTICES All notices, demands, requests or approvals to be given under this Agreement shall be given in writing and conclusively shall be deemed served when delivered personally or on the second business day after the deposit thereof in the United States Mail, postage prepaid, addressed as hereinafter provided . Each party may change the address by written notice in accordance with this provision. All notices , demands , requests , or approvals shall be addressed as follows: TO AUTHORITY: 505 W Olive A venue Suite 130 Sunnyvale, CA 94086 Attention: Chief Executive Officer TO CITY: City of Cupertino Attention: Erin Cooke 10300 Torre A venue Cupertino, CA 95014 14. TERMINATION Either Party may terminate this agreement by providing no less than sixty (60) days ' written notice to the other party.' Authority shall pay City for services satisfactorily performed up to the effective date of termination. In the event of termination, City, within fourteen (14) days following the date of termination, shall deliver to Authority all records and work products generated by City under this Agreement. Page 3 of S 15. COMPLIANCE City shall comply with all applicable local , state and federal laws . 16 . CONFLICTOFLAW This Agreement shall be interpreted under, and enforced by the laws of the State of California. The Agreement and obligations of the Parties are subject to all valid laws , orders , rules , and regulations of the authorities having jurisdiction over this Agreement (or the successors of those authorities). Any suits brought pursuant to this Agreement shall be filed with the Superior Court of the County of Santa Clara, State of California. 17. WAIVER A waiver by Authority of any breach of any term , covenant, or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition contained herein, whether of the same or a different character. 18 . INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the Parties , and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein . No verbal agreement or implied covenant shall be held to vary the provisions hereof. Any modification of this Agreement will be effective only by a written document signed by both Authority and City. 19. AUTHORITY TO EXECUTE The individual(s) executing this Agreement represent and warrant that they have the legal capacity and authority to do so on behalf of their respective legal entities. 20. INSERTED PROVISIONS Each provision and clause required by law to be inserted into the Agreement shall be deemed to be enacted herein, and the Agreement shall be read and enforced as though each were included herein. If through mistake or otherwise, any such provision is not inserted or is not correctly inserted, the Agreement shall be amended to make such insertion on application by either party. 21. CAPTIONS AND TERMS The captions in this Agreement are for convenience only, are not a part of the Agreement and in no way affect, limit or amplify the terms or provisions of this Agreement. Page 4 ofS IN WITNESS WHEREOF, the parties have caused the Agreement to be executed as of the date set forth above. CITY OF CUPERTINO By Title Date v Page 5 ofS SILICON VALLEY CLEAN ENERGY AUTHORITY By Title Date ~~ q/id L 3 .::u /h RECOMMENDED FOR APPROVAL ~~" MelO~ ar, Operc\t ions Manager Exhibit A Scope of Services For the period from April 1, 2016, through November 30, 2016, the City of Cupertino shall provide the following services to the Silicon Valley Clean Energy Authority: 1. Outreach project management including consultant contracting $20,000 and invoicing, deliverable review and feedback coordination, materials and data repository management; Board support, reporting, and briefings as needed to inform decision-making. 2. Messaging/collateral and brand development including design $50,000 and deployment of SVCE logo and identity suite, social and print media asset development and distribution, website management, and media engagement via Public Information Officer services. 3. Direct community engagement with residents and businesses $65,000 including in-person one-on-one or group meetings, web-based trainings, surveys, focus groups, event tabling and requested presentations. 4. Provide guidance on human resource policies, benefits, $20,000 classifications, recruitment, and other relevant HR functions and tasks as agreed upon by City and Authority Representatives. Total $155,000 Budgeted amounts described in the categories above are estimates and may be shifted across categories or tasks provided that the total cost does not exceed the total amount set forth in Section 3 of this Agreement.