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HomeMy WebLinkAboutPacific Energy Advisors Inc; 2019-09-19;PROFESSIONAL SERVICES AGREEMENT NUMBER 1 This First Professional Services Agreement (" Agreement") is effective September 19, 2019 between Pacific Energy Advisors, Inc. ("PEA") and the City of Carlsbad ("City" or "Client"), for professional services to be provided to Client. 1. Duties and Scope of Services. PEA shall render professional services to Client in the area of PEA's expertise, as described in Exhibit A to this Agreement. Exhibit A also identifies the Client Manager with whom PEA is to coordinate PEA's work, a budget for the work, and a schedule therefore. 2. Fees for Services. For services provided by PEA to Client pursuant to this Agreement, Client shall pay PEA in accordance with the rates and budget set forth in Exhibit A, attached hereto. 3. Billing and Payment. PEA will submit an invoice upon delivery of the draft report as described in Exhibit A. Payment of PEA invoices will be due in U.S. funds no later than 30 days after the invoice date. Amounts past due more than 30 days will bear interest at a monthly rate of 1 % from the due date until payment is received. 4. Independent Contractor. It is understood and agreed that PEA will for all purposes be an independent contractor, will not hold itself out as representing or acting in any manner for Client, and neither party will have any authority to bind the other to any contract or in any other manner. 5. Term. The Term of this Agreement shall remain in effect for a period of ninety days from the effective date, unless terminated earlier by either party pursuant to this Agreement. 6. Termination. These terms will be subject to the right of either party to terminate this Agreement at any time upon not less than ten (10) days' prior written notice to the other party. Upon termination, Client will pay the full amount due for services rendered and costs and expenses incurred and not paid for up to that time, and other reasonable costs and expenses incurred in effecting termination of this Agreement and returning documents. 7. Responsibility Statement. PEA warrants that the services provided for herein will be performed in a timely, professional manner in accordance with recognized professional consulting standards for similar services and that adequate qualified personnel will be assigned for that purpose. If, during the performance of these services or within one year following completion of the assignment, such services prove to be faulty or defective by reason of a failure to meet such standards, PEA agrees that upon prompt written notification from Client prior to the expiration of the one-year period following the completion of the assignment of any such fault or defect, such faulty portion of the services will be redone at no cost to Client up to a maximum amount equivalent to the cost of the services rendered under this assignment. The foregoing will constitute PEA's sole warranty with respect to the accuracy or completeness of the work and the activities involved in its preparation, and is made in lieu of all other warranties and representations, express or implied, including any implied warranties of merchantability or fitness for a particular purpose. Version 8.28.2018 8. Confidentiality of Data, Information, and Documents. PEA will take reasonable steps to protect any of Client's confidential information disclo~d to PEA during the course of this engagement, using the same degree of care that PEA uses to protect PEA's own proprietary and confidential information of like kind, which will be at least reasonable care. Upon Client's written request, all confidential information made available hereunder will be promptly returned to Client or destroyed, if such return is impracticable. If PEA receives a subpoena or other validly issued administrative request or order seeking confidential information, we will promptly notify Client and reasonably cooperate with Client if Client chooses to pursue Client's legal remedies to prevent disclosure of such confidential information. As used in this paragraph, "confidential information" means any proprietary, privileged or confidential information that Client discloses to PEA during the course of this engagement. However, confidential information shall not include information (a) previously known to PEA, (b) independently developed by PEA, (c) acquired by PEA from a third party which is not, to PEA's knowledge, under any obligation not to disclose such information, or ( d) which is or becomes public through no breach by PEA of this Agreement. 9. Indemnification. PEA will indemnify and hold Client and Client's officers, directors, employees and Participants (as defined in Exhibit A) harmless from and against all demands, claims losses, damages, judgments, expenses and costs (including attorney fees) arising from any and all personal injury or property loss arising out of or connected with the activities of PEA, its agents, employees or contractors while in the performance of any of the acts, duties or obligations related to the services provided; provided, however, that Client provides PEA with reasonable notice, authority and information to defend, and provided further that PEA will have no such indemnification obligations to the extent that such demands, claims, losses, damages, judgments, expenses and costs are based on, or arise out of Client's (or Client's officers', directors', employees', or affiliates') willful or negligent acts or omissions. 10. Limitation of Liability. Notwithstanding any other provision of these Terms, and in recognition of the relative risks and benefits of this engagement to Client and to PEA, the parties agree, to the fullest extent permitted by law, to limit the aggregate liability of each party (and its affiliates, directors, officers, employees, agents and representatives) to the total compensation paid to PEA under this Agreement. This limitation of liability will apply to all suits, claims, actions, losses, damages and costs (including legal fees and expenses) arising from or related to this engagement or the Services and without regard to the legal theory under which such liability may be imposed. PEA may agree, at Client's request, to increase this limitation of liability to a greater sum in exchange for a negotiated increase in PEA's fee. Any increase in this limitation of liability must be in writing and must be signed and dated by authorized representatives of PEA. Any additional charge for higher liability is consideration for the greater risk assumed by PEA and is not a charge for additional insurance. 11. Exclusion of Certain Damages. In no event shall either party, its directors, officers, employees, and affiliates be liable for any indirect, consequential or (to the extent permitted by law) punitive damages relating to or arising out of this Agreement or the services provided hereunder, whether in contract, tort (including negligence), strict liability or otherwise, even if such party will have been advised of the possibility of such loss or damage. 12. Rights to Deliverables. Any PEA report or other document ("Deliverable") prepared pursuant to these Terms shall be only for Client's internal business purposes and for any specific purposes identified in Exhibit A to this Agreement. Notwithstanding any other provision of these terms, - 2 -Version 8.28.2018 PEA's prior written consent is required for the use of (or reference to) its Deliverables (a) in connection with a public offering of securities or (b) in connection with a financial or business transaction in which Client reasonably anticipates that such third party may rely on PEA's findings, conclusions or opinions embodied in such Deliverables. The foregoing notwithstanding, PEA acknowledges that Client is considering formation of a Joint Powers Authority (JP A) for purposes of implementing a Community Choice Aggregation program, agrees that Client may share the Deliverable with other potential JP A member agencies, and acknowledges that such agencies may rely on PEA's work product in determining whether or not to join the JP A. Upon payment in full of PEA' s fees and expenses for this engagement Client will obtain all right, title and interest in and to any Deliverables, except for any pre-existing patent, copyright, trademark, intellectual property rights, methodologies, processes, techniques, ideas, concepts, trade secrets and know-how ("PEA Knowledge") embodied in such Deliverables. PEA grants Client a perpetual, non-exclusive, non-transferable license to use and disclose such PEA Knowledge solely for Client's internal business purposes and for any specific purposes identified in Exhibit A to this Agreement. PEA may retain a copy of any such Deliverable for its internal recordkeeping purposes or compliance with applicable professional standards. 13. Intellectual Property Indemnification. PEA will indemnify and hold Client and Client's officers, directors, employees and Participants harmless from and against any third party claim that any of the Deliverables developed under this Agreement by PEA infringes a presently existing United States patent, trademark, or trade secret; provided, however, that Client provides PEA with timely notice and reasonable authority and information to defend. PEA will not indemnify Client, however, if the claim of infringement arises out of or is caused by Client's misuse or modification of such Deliverable or Client's breach of this Agreement. If such Deliverable is, or in PEA's opinion is likely to be, held to constitute an infringing product, PEA will at its expense and option either (a) procure the right for Client to continue using it; (b) replace it with a non- infringing equivalent; (c) modify it to make it non-infringing or (d) accept return of such Deliverable and refund Client the fees paid for such Deliverable. The foregoing remedies constitute Client's sole and exclusive remedies and PEA's entire liability with respect to infringement. 14. Excused Performance. PEA will not be deemed in default of any provision hereof or be liable for any delay, failure in performance, or interruption of service resulting directly or indirectly from acts of God, civil or military authority, civil disturbance, war, strikes or other labor disputes, fires, other catastrophes, or other forces beyond its reasonable control. 15. Conflicts of Interest. Based on the names of the Participants, PEA is not aware of circumstances that constitute a conflict of interest or that would otherwise impair its ability to provide objective assistance. PEA's determination of conflicts is based primarily on the substance of its work as opposed to the parties involved. During the course of this engagement, PEA may be requested to be retained by parties with interests that may not be consistent with those of Client. PEA agrees that it will not accept retentions that would be adverse to Client either (i) on the factual issues that are the subject matter of this engagement; or (ii) that involve the services of PEA personnel staffed on this engagement who have received or are likely to receive any Confidential Information from Client. 16. Amendment. All changes or modifications to this Agreement shall be in writing and signed by both parties. - 3 -Version 8.28.2018 17. Governing Law and Venue. Before the filing of any civil action in the event of a dispute involving the terms of this agreement, the parties agree that they shall mediate any such dispute with a mutually agreed upon mediator provided by the State mediation and conciliation service or any other established dispute resolution body, each side bearing their own costs in connection with the mediation. After such mediation the parties may agree to binding arbitration in lieu of civil litigation, each side bearing their own costs. This Agreement shall be construed and interpreted according to, and the rights of the parties shall be governed by, the laws of the State of California without regard to its conflicts of laws principles. Each part irrevocably agrees that any state or federal court of competent jurisdiction in Sacramento County or the eastern district of California, Sacramento, in the event of a federal court filing, will be the exclusive venue for resolution of any disputes arising out of this Agreement. 18. Entire Agreement. This Agreement constitutes the complete and final expression of the agreement of the parties and is intended as a complete and exclusive statement of the terms of their agreements and supersedes all prior and contemporaneous offers, promises, representations, negotiations, discussions, communications, and agreement which may have been made in connection with the subject matter hereof. 19. Severability. If any provision of this Agreement is found or deemed by a court of competent jurisdiction to be invalid or unenforceable, it shall be considered severable from the remainder of this Agreement and shall not cause the remainder to be invalid or unenforceable. In such event, the parties shall reform this Agreement to replace such stricken provision with a valid and enforceable provision which comes as close as possible to expressing the intention of the stricken provision. 20. Notices. (a) Any notice, demand, information, invoice, report, or item otherwise required, authorized, or provided for in this Agreement, unless otherwise specified herein, shall be deemed properly given if delivered in person or sent by United States Mail, First Class postage prepaid: Project Manager: PEA: Jason Haber City of Carlsbad 1200 Carlsbad Village Drive, Carlsbad, CA 92008-1949 John Dalessi, President Pacific Energy Advisors, Inc. 1839 Iron Point Road, Suite 120 Folsom, CA 95630 (b) All notices shall be deemed effective upon receipt by the party to whom such notice is given. - 4 -Version 8.28.2018 21. Si~ature Clause. The signatories hereto represent that they are authorized to enter into this Agreement on behalf of the party for whom they sign. AUTHORIZED BY: Pacific Energy Advisors, Inc. By:~0~ Printed: John Dalessi Dated: September 19, 2019 -5 - AC Dated: ZJ)~{L} APPROVED AS TO FORM Celia A. Brewer, City Attorney Version 8.28.2018 EXHIBIT A DESCRIPTION OF WORK TO BE COMPLETED BY PACIFIC ENERGY ADVISORS, INC. (PEA) AT THE REQUEST OF THE CITY OF CARLSBAD DA TED: September 19, 2019 This Description of Work includes the Scope of Services, Schedule and Budget for work to be completed by PEA. SCOPE OF SERVICES PEA will conduct a peer review of the Community Choice Aggregation Feasibility Study conducted for the City by EES Consulting, dated March 28, 2019. This peer review will encompass a review of the reasonableness of the study's key input assumptions, the analytical approach used in the study, and the conclusions drawn. PEA will summarize its findings in a brief (3 to 5 page) memorandum for City staff. All work will be conducted at PEA's place of business. ESTIMATED TIME FOR COMPLETION Approximately four (4) weeks commencing on September 19, 2019. FEES FOR SERVICES PEA will provide the services described in this proposal for a fixed fee of $10,000, payable upon delivery of the draft report. CLIENT MANAGER Jason Haber, Assistant to the City Manager, City of Carlsbad AUTHORIZATION This Description of Work is authorized and made an attachment to the above-identified Professional Services Agreement through the signatures below. AUTHORIZED BY: Pacific Energy Advisors, Inc. By: ~0~ Printed: .labâ–¡ Dalessi Dated: September 19, 2019 - 6 - Printed:~ 6uhNtC£ Dated: _Z_~-~~-cJ __ l>_l(i~---- Version 8.28.2018