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SVCCES Services and Cost SharingAGREEMENT BETWEEN THE CITIES OF SUNNYVALE, MOUNTAIN VIEW, AND CUPERTINO AND THE COUNTY OF SANTA CLARA FOR PHASE 1B (FEASIBILITY STUDY) AND PREPARATION FOR PHASE 2 (IMPLEMENTATION PROGRAM DEVELOPMENT) OF A PROPOSED COMMUNITY CHOICE ENERGY PROGRAM This Agreement is made and entered into this 1st day of July, 2015 (“Effective Date”), by and between the City of Sunnyvale, (“Sunnyvale”), the City of Mountain View (“Mountain View”), the City of Cupertino (“Cupertino”), and the County of Santa Clara (“County”). Sunnyvale, Mountain View, Cupertino, and County hereinafter may be referred to individually as “Party” and collectively as “Parties.” Whereas, the Parties to this Agreement share a mutual interest in addressing climate change by reducing energy-related greenhouse gas (GHG) emissions, promoting the use of renewable energy sources and providing residences and businesses with a choice in the purchase of electricity; and Whereas, one way of meeting the above goals would be for public entities in Santa Clara County to establish a Community Choice Energy (CCE) program in order to purchase energy from renewable and other low GHG sources and sell it to residents and businesses in the community; and Whereas, establishing a CCE program also provides the Parties an opportunity to stimulate local economies, create and sustain jobs, and develop and administer energy efficiency programs; and Whereas on February 20, 2015, the Parties entered into a Cost Sharing Agreement (the “Prior Cost Sharing Agreement”) to fund the preparation of an initial CCE Study; and Whereas, the initial CCE Study was prepared and completed by the consulting firm LEAN Energy US and the Parties now desire to proceed to Phase 1B (Feasibility) and prepare for Phase 2 (Implementation Program Development) of the evaluation of the proposed CCE program (the “Project”); and Whereas, the Parties anticipate seeking reimbursement for the cost share under this Agreement from the CCE program revenues, should such a program be established and the Party to be reimbursed becomes a program member; but each Party acknowledges that there will be no reimbursement if a CCE program is not established; and Whereas, the Parties desire to fund the Project with an agreement that will divide responsibility for functions for the Project to individual Parties or other persons as described in this Agreement. NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS: Functions to be Performed and Services to be Provided. The Parties have agreed to divide responsibility for the functions required to complete the Project in the manner described in Attachment A, attached hereto. The Party designated as the Lead for each function shall perform the activities described in Attachment A, enter into the agreement with the consultant retained for the particular function, as appropriate, and manage such consultant and agreement. Each Party shall designate a contract manager for the contracts it enters into under this Agreement. No agreement shall be entered into by any Party unless all of the following requirements are first satisfied: (i) Payment under the agreement will not exceed the budgeted cost for the work provided by such agreement as described in the Project Budget (the “Project Budget”) approved by the Parties and attached hereto as Attachment B. The agreement shall contain a specified cost not to exceed amount in accordance with the Project Budget and shall state that this amount may not be increased without the approval of the Executive Committee established by this Agreement. (ii) The scope of work for the agreement has been approved by the Project Team as provided by Section 5 below and the Executive Committee. (iii) The Agreement provides that the contractor (1) shall hold harmless, defend and indemnify all of the Parties from the negligence or willful misconduct of the contractor, the contractor’s employees, officers, officials, agents and independent contractors, (2) shall obtain insurance policies in accordance with the requirements of the Party entering into the agreement and (3) shall name all of the Parties as an additional insured on the contractor’s insurance policy. (iv) The agreement specifies that all drafts, work products and deliverables shall be owned by each of the Parties. Each Party shall designate and identify to the other Parties their staff responsible for performing the functions and activities assigned to such Party. All responsible staff shall report progress on a weekly basis to the Project Team. Changes to Attachments A and B shall be made only with the written agreement of the principal administrative executives of all Parties through the Executive Committee. 2. Cost sharing. Parties shall equally share ($150,000 each) in the total costs for the Project not to exceed $600,000. Eligible costs that may be incurred for the Project include consultant payments, staff time reimbursement and other expenses needed to complete the Project in accordance with the Project Budget. The costs for performing the activities described for each function shall not exceed the amount shown for such function in the Project Budget. Staff time shall be reimbursed based on the applicable staff position salary plus benefits, but not including any overhead. Time spent by staff at Project Team meetings shall not be reimbursable under this Agreement. Further the maximum amount of staff time that may be reimbursed shall not exceed the amounts shown in the Project Budget. 3. Deposit of Funds. Each Party shall each deposit the sum of $150,000 with Sunnyvale within 15 days after such Party executes this Agreement. Sunnyvale shall act as fiscal agent in the administration of this Agreement and shall establish a separate fund (the “Project Account”) into which the contributions of monies made by each Party will be deposited. Sunnyvale shall establish, maintain and administer the Project Account in accordance with its established accounting and budgeting policies. Sunnyvale will deposit $150,000 of its funds into the Project Account also within 15 days after it executes this Agreement. 4. Payment of Costs. In its role as fiscal agent, Sunnyvale shall be responsible for making payments from the Project Account of all eligible costs submitted by the Parties for their functions. None of the other Parties will be required to make any payment of costs incurred in the performance of this Agreement as all such costs will be paid by Sunnyvale from the Project Account. Each Party shall submit invoices to Sunnyvale for eligible costs it incurs for its designated function. Each invoice shall certify that such costs have been reviewed and approved by the contract manager for such Party. Sunnyvale may request additional information or documentation reasonably necessary to determine if the invoiced costs are eligible costs for payment from the Project Account under this Agreement. Sunnyvale shall pay a submitted invoice to the person or entity entitled to payment within 30 days after it determines that the invoice contains the required certification and is supported by adequate documentation that the submitted costs are eligible for payment. Sunnyvale shall not pay any invoiced costs that exceed the Project Budget. Sunnyvale shall provide monthly written progress reports to the other Parties describing both the expenditures made in the prior month and expenditures made to date as compared to the Project Budget. The monthly Progress Reports shall be in the form approved by the Project Team. Sunnyvale shall maintain all records related to the Project Account, including but not limited to invoices submitted and paid, Progress Reports, and all work generated (regardless of the Party for whom the work was generated) for a period of five years after the termination of this Agreement. Each Party shall have a right to inspect, copy, retain and use such records. Further, each Party shall have the right to audit any expenditures under this Agreement provided that such Party has first informally requested to review the relevant financial records and is not reasonably satisfied with the results of such informal review. All Parties shall reasonably cooperate with each other in completing the audit. 5. Project Team. A Project Team shall be constituted for the purpose of supervising the administration of this Agreement and ensuring that the activities and tasks required to complete the Project are timely completed. The Project Team shall consist of the representative or representatives designated by each Party to this Agreement. The Project Team shall meet regularly during the term of this Agreement at the times and place selected by the Project Team. 6. Executive Committee. An Executive Committee shall be constituted for the purposes of final review and decision-making with respect to the implementation of this Agreement. The Executive Committee shall consist of the principal administrative executive of each Party or his or her designee. In addition to any other approval assigned to the Executive Committee elsewhere in this Agreement, any amendments to this Agreement, including Exhibits A and B, shall be approved by all of the members of the Executive Committee. Any disputes between the Parties arising from the implementation of this Agreement shall be considered by the Executive Committee in accordance with the dispute resolution provisions of Section 14. 7. Term. The term of this Agreement is from the Effective Date through June 30, 2016, unless extended by the written agreement of all the Parties. This Agreement will become effective and be binding as of the Effective Date when all Parties have executed this Agreement. No Party specified in this Agreement shall have any rights or obligations under this Agreement until such Party executes it. 8. Relationship of Parties. The Parties, in the performance of the tasks to be performed by each, will each act on their own behalf and not as an agent or employee of any other Party. The employees of each Party shall be considered the employees of that Party only during the performance of this Agreement. 8. 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 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 law, including the provisions of the California Tort Claims Act (Govt. Code §810 et seq.). Notwithstanding the above, 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. 9. Non-discrimination. The Parties shall not discriminate, in any way, against any person on the basis of race, sex, color, age, religion, sexual orientation, actual or perceived gender identity, disability, ethnicity, national origin, or any other legally protected category, in connection with or related to the performance of this Agreement. 10. Termination. A. Each Party has a right to terminate its participation in this Agreement for convenience, without cause, by giving not less than thirty (30) calendar days written notice of termination to the other Parties. The terminating party will forfeit their proportional share of the total funds expended or contractually committed at the time that notice of termination is given but will have no further obligations under this Agreement. The terminating party shall receive the remaining funds it deposited with Sunnyvale that were not expended or contractually committed within 30 days after termination. B. If any Party fails to perform any of its material obligations under this Agreement, in addition to all other remedies provided by law, the Executive Committee may by unanimous vote (excluding the vote of the breaching Party) elect to terminate the breaching Party upon written notice and a reasonable opportunity to cure which shall not be less than 15 days. . C. In the event there are excess monies remaining after the completion of the Project or the termination of this Agreement by all Parties, such excess monies will be returned on an equal basis to each of the remaining Parties to this Agreement. 11. Notices. All notices and other communications required or permitted to be given under this Agreement will be in writing and will be personally served or mailed, postage prepaid and return receipt requested, addressed to the respective Parties as follows: Sunnyvale: Melody Tovar, Regulatory Programs Division Manager City of Sunnyvale, Department of Environmental Services P.O. Box 3707 Sunnyvale, CA 94088-3707 Cupertino: Erin Cooke, Sustainability Manager City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 Mountain View: Terry Blount, Assistant Community Development Director City of Mountain View 500 Castro Street Mountain View, CA 94041 County: Demetra J. McBride, Director, Office of Sustainability Office of the County Executive, Eleventh Floor—East Wing 70 W. Hedding Street San Jose, CA 95110 Notice will be deemed effective on the date personally delivered or, if mailed, three (3) calendar days after deposit in the mail. 12. Prior Cost Sharing Agreement. The Prior Cost Sharing Agreement is hereby terminated and superseded by this Agreement as of the date that all Parties execute this Agreement. Any unspent and unencumbered monies contributed by the Parties under the Prior Cost Sharing Agreement will be transferred to the Project Account established by Sunnyvale and spent for the purposes authorized by this Agreement. 13. Work Product. In the event that one of the Parties does not join a CCE program resulting from this Agreement, such Party shall retain the right to use all of the data, information or work generated by this Agreement for the purpose of creating a community choice aggregation program as described in California Public Utilities Code Section 366.2 unless such data or information is required to be kept confidential pursuant to state law or an executed Non Disclosure Agreement. 14. Dispute Resolution. The Parties shall make reasonable efforts to settle all disputes arising out of or in connection with this Agreement among themselves. Any Party disputing any act or failure to act under this Agreement, shall first bring such dispute to the attention of the Project Team. If such dispute is not resolved to the satisfaction of the Parties by the Project Team within 30 days or such other time period agreed upon by the Parties, the dispute shall be referred to the Executive Committee. If the dispute is not resolved to the satisfaction of the Parties by the Executive Committee within 30 days or such other time period agreed upon by the Parties, any Party not satisfied by the outcome on the dispute may pursue any legal remedies available to it. 15. Assignment. The rights and duties of the Parties under this Agreement may not be assigned to another person or entity without the express written consent of all of the Parties through the Executive Committee. 16. Severability. In the event that any provision of this Agreement is prohibited by any law governing its construction, performance or enforcement, such provision shall be ineffective to the extent of such prohibition without invalidating thereby any of the remaining provisions of the Agreement. 17. Entire Agreement. This Agreement represents the entire understanding of the Parties as to those matters contained herein. No prior oral or written understanding will be of any force or effect with respect to those matters covered hereunder. This Agreement may only be modified by a written amendment duly executed by the Parties to this Agreement. 18. Execution by Counterparts. This Agreement may be executed in any number of counterparts, and upon execution by all Parties to this Agreement, shall have the same force and effect as an original instrument and as if all Parties had signed the same instrument. WITNESS THE EXECUTION HEREOF on the day and year first hereinabove written. CITY OF SUNNYVALE Approved as to form: By: ___________________________ By:_________________________ Deanna J. Santana City Manager CITY OF CUPERTINO Approved as to form: By: ___________________________ By:_________________________ David Brandt City Manager CITY OF MOUNTAIN VIEW Approved as to form: By: ___________________________ By:_________________________ Dan Rich City Manager ___________________________ Patty Kong Finance and Administrative Services Director COUNTY OF SANTA CLARA Approved as to form: By: ___________________________ By:_________________________ Jeffrey V. Smith, M.D., J.D. Steve Mitra County Executive Assistant County Counsel