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HomeMy WebLinkAbout1998-09-29; City Council; 14863; Energy Consulting Services: Grueneich ResourceCl- OF CARLSBAD - AGENP BILL DEPT. HD. ENERGY CONSULTING SERVICES: TECHNICAL, ENVIRONMENTAL, AND PUBLIC POLICY IEPT. RECOMMENDED ACTION: Adopt Resolution No. 9 8 -3 I 7 approving an agreement with Grueneich Resource Advocates for energy related technical, environmental and public policy consulting services. ITEM EXPLANATION The San Diego Gas & Electric Company (SDG&E) must sell or otherwise divest its electric generating plants, including the Encina Power Plant in Carlsbad. SDG&E announced its intent to auction the Encina Power Plant on November 25, 1997, and on December 19, 1997, the utility filed an application with the California Public Utility Commission (CPUC) for authorization of the sale. The Encina Power Plant is situated on and impacts several hundred acres of coastal and lagoon property in Carlsbad. The proposed sale of the plant presents a possible opportunity for the City to influence the environmental impacts of the plant and the future uses of this land. As a result, following the utility's announcement of its intent to auction the plant, the City became a participant in the CPUC review of the proposed sale in an attempt to ensure that the City's land use and environmental concerns related to the plant are considered before the sale is authorized. In addition, on May 12, 1998, Council approved a Resolution of Intention to study and consider amendments to the General Plan, zoning designations and the zoning ordinances pertaining to the Encina Power Plant and surrounding properties presently under the ownership of SDG&E, to evaluate potential uses for this land that may better serve the community. This property encompasses 680 acres and includes the land occupied by the power plant, the property used in the power plant operations adjacent to the Agua Hedionda Lagoon, the lagoon itself and property east of the plant. Finally, to ensure that all means possible to protect the community's interests are identified and thoroughly evaluated, the energy related technical, environmental and public policy consultant Grueneich Resource Advocates (GRA) was retained to identify other options for actions to eliminate or reduce the environmental impacts of the plant and to achieve more compatible land uses on this property. More consultant work in the areas of environmental studies, finance, regulatory review, legal research and strategic planning will be required as further analysis is done. The extent of work necessary will depend on study results and developments in the rapidly changing energy industry. As a result, staff is proposing a one year agreement with GRA with the option to renew for a period of one year, at a cost not to exceed $250,000. GRA was selected for the earlier work and is the only consultant recommended for the agreement in Exhibit 2 because GRA is the only fii identified that has the combined knowledge of and expertise in the energy industry, the restructured electricity market, and the strategic planning and representation of a municipality during the sale of a power plant in this new era of deregulation. This firm recently performed work for the CityEounty of San Francisco which recommended GRA highly, and the quality of work done by GRA for the City to date has been excellent. The only other firm staff learned might be qualified, MRW & Associates, has cited a conflict of interest and declined to be considered as a candidate. FISCAL IMPACT The projected cost of the agreement is up to $250,000. Staff recommends that the funds be appropriated from the Council Contingency Fund to the City Manager Professional Services Account. All funds not used would be returned to the Council Contingency Fund. EXHIBITS 1. Resolution No. ?e -3/ '7 2. Contract with Grueneich Resource Advocates .I 1 2 1 4 5 6 7 0 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 20 RESOLUTION NO. 98-317 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING AN AGREEMENT WITH GRUENEICH RESOURCE ADVOCATES FOR ENERGY RELATED TECHNICAL, ENVIRONMENTAL AND PUBLIC POLICY CONSULTING SERVICES WKEREAS, SDG&E must sell or otherwise divest the Encina Power Plant; and WHEREAS, SDG&E announced its intent to auction the Encina Power Plant; and WHEREAS, SDG&E filed an application with the California Public Utility Commission (CPUC) for authorization to sell the Encina Power Plant; and WHEREAS, the City has intervened in the CPUC process of reviewing the application to ensure that the City’s land use and environmental concerns related to the plant are considered before the sale is authorized; and WHEREAS, the City is conducting a study to consider amendments to the General Plan, zoning designations and the zoning ordinances pertaining to the Encina Power Plant and surrounding properties presently under the ownership of SDG&E to evaluate potential uses for this land that may better serve the community; and WHEREAS, Council wishes to more fully explore options to reduce the adverse environmental impacts of the current land uses and establish uses of the land that are more compatible with the needs and goals of the community; and WHEREAS, energy related technical, environmental and public policy consulting services are needed for studies and analyses to explore these options; and WHEREAS, Grueneich Resource Advocates is highly qualified and the only firm identified with the skills necessary to provide the needed consulting services. NOW, THEREFORE, be it resolved by the City Council of the City of Carlsbad, California, as follows: .4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. That the above recitations are true and correct. 2. That the City Council hereby authorizes the Mayor to execute an agreement with Grueneich Resource Advocates for energy related technical, environmental and public policy consulting services. 3. That the Financial Director is authorized to transfer $250,000 from the Council Contingency Fund to the City Manager Professional Services Account (001-1010- 7490). PASSED, APPROVED AND ADOPTED at a Special Meeting of the City Council September of the City of Carlsbad on the 29th day of / 1998, by the following vote, to wit: AYES: Council Members Lewis, Finnila, Nygaard and Kulchin NOES: None ATTEST: al&/ Q- ALETHA L. RAUTENKRANZ, City Clerk) library - AB Gruenich AGREEMENT THIS AGREEMENT is made and entered into as of the 33 o-J day of , 1998, by and between the CITY OF CARLSBAD, a municipal B corporation, hereinafter referred to as 'City'', and Grueneich Resource Advocates, a sole owner, hereinafter referred to as "Contractor." RECITALS City requires the services of a legal technical and public policy Contractor to provide the necessary legal and technical services for consultation on energy and environmental matters, and Contractor possesses the necessary s.kills and qualifications to provide the services required by the City; NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. CONTRACTOR'S OBLIGATIONS The Contractor shall perform the following: A. Advise the City on matters relating to the energy industry, the restructured electricity market, and the divestiture of a power plant. B. Continue to advise the City on options for reducing or eliminating the environmental impacts of the Encina Power Plant and influencing the future uses of the plant property and surrounding properties to provide greater access to beaches and land uses more compatible with the needs of the community. rev. 8/25/98 ,-I - _- C. Perform the necessary environmental and alternative plant and transmission studies, financial analyses, regulatory review, legal research, strategic planning and other advisory work as needed. D. Assist the City in public information and education efforts. E. Attend staff and City Council meetings as necessary. 2. CITY OBLIGATIONS The City shall provide staff assistance and necessary documents The City shall review Contractor's work product and either provide approval for proceeding to the next assignment or provide Contractor with specific changes or alternatives required to complete the assignment. 3. PROGRESS AND COMPLETION The work under this contract will begin within ten (IO) days after receipt of notification to proceed by the City and be completed within 365 calendar days of that date. Extensions of time may be granted if requested by the Contractor and agreed to in writing by the Risk Manager. The Risk Manager will give allowance for documented and substantiated unforeseeable and unavoidable delays not caused by a lack of foresight on the part of the Contractor, or delays caused by City inaction or other agencies' lack of timely action. 4. FEES TO BE PAID TO CONTRACTOR The total fee payable for the services to be performed shall be up to $250,000. No other compensation for services will be allowed except those items covered by supplemental agreements per Paragraph 8, ''Changes in Work." The City reserves the -2 - rev. 8/25/98 right to withhold a ten percent (10%) retention until the project has been accepted by the City. Incremental payments, if applicable, should be made as outlined in attached Exhibit "A." 5. DU.RATION OF CONTRACT This agreement shall extend for a period of one year from date thereof. The contract may be extended by the City Manager for one additional one (1) year periods or parts thereof, based upon a review of satisfactory performance and the City's needs. The parties shall prepare extensions in writing indicating effective date and length of the extended contract. 6. PAYMENT OF FEES Payment of approved items on the invoice shall be mailed to the Contractor within 30 days of receipt of the invoice. 7. FINAL SUBMISSIONS Within n/a days of completion and approval of the n/a the Contractor shall deliver to the City the following items: 8. CHANGES IN WORK If, in the course of the contract, changes seem merited by the Contractor or the City, and informal consultations with the other party indicate that a change in the conditions of the contract is warranted, the Contractor or the City may request a change in contract. Such changes shall be processed by the City in the following manner: A rev. 8/25/98 -3 - letter outlining the required changes shall be forwarded to the City by Contractor to inform them of the proposed changes along with a statement of estimated changes in charges or time schedule. A Standard Amendment to Agreement shall be prepared by the City,and approved by the City according to the procedures described in Carlsbad Municipal Code Section 3.28.172. Such Amendment to Agreement shall not render ineffective or invalidate unaffected portions of the agreement. 9. COVENANTS AGAINST CONTINGENT FEES The Contractor warrants that their firm has not employed or retained any company or person, other than a bona fide employee working for the Contractor, to solicit or secure this agreement, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this agreement. For breach or violation of this warranty, the City shall have the right to annul this agreement without liability, or, in its discretion, to deduct from the agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fees, gift, or contingent fee. IO. NONDISCRIMINATION CLAUSE The Contractor shall comply with the state and federal laws regarding nondiscrimination. -4- rev. 812 5/98 11. TERMINATION OF CONTRACT In the event of the Contractor's failure to prosecute, deliver, or perform the work as provided for in this contract, the City Manager may terminate this contract for nonperformance by notifying the Contractor by certified mail of the termination of the Contractor. The Contractor, thereupon, has five (5) working days to deliver said documents owned by the City and all work in progress to the Risk Manager. The Risk Manager shall make a determination of fact based upon the documents delivered to City of the percentage of work which the Contractor has performed which is usable and of worth to the City in having the contract completed. Based upon that finding as reported to the City Manager, the Manager shall determine the final payment of the contract. This agreement may be terminated by either party upon tendering thirty (30) days written notice to the other party. In the event of such suspension or termination, upon request of the City, the Contractor shall assemble the work product and put same in order for proper filing and closing and deliver said product to City. In the event of termination, the Contractor shall be paid for work performed to the termination date; however, the total shall not exceed the lump sum fee payable under paragraph 4. The City Manager shall make the final determination as to the portions of tasks completed and the compensation to be made. -5 - rev. 8/25/98 12. CLAIMS AND LAWSUITS The Contractor agrees that any contract claim submitted to the City must be asserted as part of the contract process as set forth in this agreement and not in anticipation of litigation or in conjunction with litigation. The Contractor acknowledges that if a false claim is submitted to the City, it may be considered fraud and the Contractor may be subject to criminal prosecution. The Contractor acknowledges that California Government Code sections 12650 et sea., the False Claims Act, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If the City of Carlsbad seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. The Contractor acknowledges that the filing of a false claim may subject the Contractor to an administrative debarment proceeding wherein the Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five years. The Contractor acknowledges debarment by another jurisdiction is grounds for the City of Carlsbad to disqualify the Contractor from the selection process. g(lnitial) The provisions of Carlsbad Municipal 3.32.027 and 3.32.028 pertaining to false claims Code sections 3.32.025, 3.32.026, are incorporated herein by reference. -6 - rev. 8/25/98 13. STATUS OF THE CONTRACTOR The Contractor shall perform the services provided for herein in Contractor's own way as an independent Contractor and in pursuit of Contractor's independent calling, and not as an employee of the City. Contractor shall be under control of the City only as to the result to be accomplished, but shall consult with the City as provided for in the request for proposal. The persons used by the Contractor to provide services under this agreement shall not be considered employees of the City for any purposes whatsoever. The Contractor is an independent Contractor of the City. The payment made to the Contractor pursuant to the contract shall be the full and complete compensation to which the Contractor is entitled. The City shall not make any federal or state tax withholdings on behalf of the Contractor or its employees or subcontractors. The City shall not be required to pay any workers' compensation insurance or unemployment contributions on behalf of the Contractor or its employees or subcontractors. The Contractor agrees to indemnify the City within 30 days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which the City may be required to make on behalf of the Contractor or any employee or subcontractor of the Contractor for work done under this agreement or such indemnification amount may be deducted by the City from any balance owing to the Contractor. The Contractor shall be aware of the requirements of the Immigration Reform and Control Act of 1986 and shall comply with those requirements, including, but not -7 - rev. 8/25/98 limited to, verifying the eligibility for employment of all agents, employees, subcontractors and Consultants that are included in this agreement. 14. CONFORMITY TO LEGAL REQUIREMENTS The Contractor shall cause all drawings and specifications to conform to all applicable requirements of law: federal, state and local. Contractor shall provide all necessary supporting documents, to be filed with any agencies whose approval is necessary. The City will provide copies of the approved plans to any other agencies. 15. OWNERSHIP OF DOCUMENTS All plans, studies, sketches, drawings, reports, and specifications as herein required are the property of the City, whether the work for which they are made be executed or not. In the event this contract is terminated, all documents, plans, specifications, drawings, reports, and studies shall be delivered forthwith to the City. Contractor shall have the right to make one (I) copy of the plans for its records. 16. REPRODUCTION RIGHTS The Contractor agrees that all copyrights which arise from creation of the work pursuant to this contract shall be vested in City and hereby agrees to relinquish all claims to such copyrights in favor of City. ' 17. HOLD HARMLESS AGREEMENT Contractor agrees to indemnify and hold harmless the City of Carlsbad and its officers, officials, employees and volunteers from and against all claims, damages, rev. 8/25/98 -8 - losses and expenses including attorneys fees arising out of the performance of the work described herein caused by any willful misconduct, or negligent act, or omission of the contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. 18. ASSIGNMENT OF CONTRACT The Contractor shall not assign this contract or any part thereof or any monies due thereunder without the prior written consent of the City. 19. SUBCONTRACTING If the Contractor shall subcontract any of the work to be performed under this contract by the Contractor, Contractor shall be fully responsible to the City for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this contract shall create any contractual relationship between any subcontractor of Contractor and the City. The Contractor shall bind every subcontractor and every subcontractor of a subcontractor by the terms of this contract applicable to Contractor's work unless specifically noted to the contrary in the subcontract in question approved in writing by the City. 20. PROHIBITED INTEREST No official of the City who is authorized in such capacity on behalf of the City to negotiate, make, accept, or approve, or take part in negotiating, making, accepting, or -9 - rev. 8/25/98 approving of this agreement, shall become directly or indirectly interested personally in this contract or in any part thereof. No officer or employee of the City who is authorized in such capacity and on behalf of the City to exercise any executive, supervisory, or similar functions in connection with the performance of this contract shall become directly or indirectly interested personally in this contract or any part thereof. 21. VERBAL AGREEMENT OR CONVERSATION No verbal agreement or conversation with any officer, agent, or employee of the City, either before, during or after the execution of this contract, shall affect or modify any of the terms or obligations herein contained nor entitle the Contractor to any additional payment whatsoever under the terms of this contract. 22. SUCCESSORS OR ASSIGNS Subject to the provisions of Paragraph 17, "Hold Harmless Agreement," all terms, conditions, and provisions hereof shall inure to and shall bind each of the parties hereto, and each of their respective heirs, executors, administrators, successors, and assigns. 23. EFFECTIVE DATE This agreement shall be effective on and from the day and year first written above. 24. . CONFLICT OF INTEREST The City has determined, using the guidelines of the Political Reform Act and the City's conflict of interest code, that the Contractor will not be required to file a conflict of rev. 8/25/98 -10 - interest statement as a requirement of this agreement. However, Contractor. hereby acknowledges that Contractor has the legal responsibility for complying with the Political Reform Act and nothing in this agreement releases Contractor from this responsibility. rev. 812 5/98 -11 - 25. INSURANCE The Contractor shall obtain and maintain for the duration of the contract and any and all amendments insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the work hereunder by the Contractor, his agents, representatives, employees or subcontractors. Said insurance shall be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:V" and shall meet the City's policy for insurance as stated in Resolution No. 91-403. A. Coveraqes and Limits. Contractor shall maintain the types of coverages and minimum limits indicated herein, unless a lower amount is approved by the City Attorney or City Manager: 1. Comprehensive General Liability insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits shall apply separately to the work under this contract or the general aggregate shall be twice the required per occurrence limit. 2. Automobile Liability (if the use of an automobile is involved for Contractor's work for the City). $1,000,000 combined single-limit per accident for bodily injury and property damage. -12 - rev. 8/25/98 .. 3. Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the Labor Code of the State of California and Employer's Liability limits of $1,000,000 per accident for bodily injury. 4. Professional Liability. Errors and omissions liability appropriate to the contractor's profession with limits of not less than $1,000,000 per claim. Coverage shall be maintained for a period of five years following the date of completion of the work. B. Additional Provisions. Contractor shall ensure that the policies of insurance required under this agreement contain, or are endorsed to contain, the following provisions. 1. The City shall be named as an additional insured on all policies excluding Workers' Compensation and Professional Liability. 2. The Contractor shall furnish certificates of insurance to the City before commencement of work. 3. The Contractor shall obtain occurrence coverage, excluding Professional Liability which shall be written as claims-made coverage. 4. This insurance shall be in force during the life of the agreement and any extension thereof and shall not be canceled without 30 days prior written notice to the City sent by certified mail. 5. If the Contractor fails to maintain any of the insurance coverages required herein, then the City will have the option to declare the Contractor in breach, or -13 - rev. 812519 8 may purchase replacement insurance or pay the premiums that are due on existing policies in order that the required coverages may be maintained. The Contractor is responsible for any payments made by the City to obtain or maintain such insurance and the City may collect the same from the Contractor or deduct the amount paid from any sums due the Contractor under this agreement. ... ... ... ... ... ... -14 - rev. 8/25/98 26. RESPONSIBLE PARTIES The name of the persons who are authorized to give written notices or to receive written notice on behalf of the City and on behalf of the Contractor in connection with the foregoing are as follows: For City: Title Risk Manager Name Erin Letsch Address1 200 Carlsbad Village Drive Carlsbad, CA 92008 ’ Title Owner For Contractor: Name Dian Grueneich Address 582 Market Street, Ste. 407 San Francisco, CA 94104 27. BUSINESS LICENSE Contractor shall obtain and maintain a City of Carlsbad Business License for the duration of the contract. 28. ENTIRE AGREEMENT This agreement, together with any other written document referred to or contemplated herein, embody the entire agreement and understanding between the parties relating to the subject matter hereof. Neither this agreement nor any provision hereof may be amended, modified, waived or discharged except by an instrument in writing executed by the party against which enforcement of such amendment, waiver or discharge is sought. rev. 8/25/98 -15 - Executed by Contractor this 22 d day of Sfl&-L/ 119PB. CONTRACTOR: CITY OF -CARLSBAD, a municipal hd 6R krm ICC-C (name of Contractor) By: (sign here) UW~Y- (print nameltitle) ATTEST: By: (sign here) aecd, k! Pd- ALETHA L. RAUTENKRANZ (print nameltitle) City Clerk (Proper notarial acknowledgment of execution by Contractor must be attached.) (President or vice-president and secretary or assistant secretary must sign for corporations. If only one officer signs, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering that officer to bind the corporation.) APPROVED AS TO FORM: RONALD R. BALL City Attorney -16 - rev. 8/25/98 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT NO. 5907 State of County of SW hE&3 On ?hs/Pa DATE before me,~~~&.k@ NAME, TITLE OF OFFICER - E.G.. "JANE p$7ne/ DOE, NOTARY f PUBLIC" Y personally appeared DIM @JWme raft 9 0 personally known to me - OR - 6oved to me on the basis of satisfactory evidence NAME(S) OF SIGNER(S) to be the personM whose nameu is/- subscribed to the within instrument and ac- knowledged to me that ke/she/t&ey executed the same in &idher/#& authorized capacity-), and that by bk/her/tk+r signaturem on the instrument the person&), or the entity upon behalf of which the personw acted, executed the instrument. WlTmS my hand and omial seal. f SIGNATURE OF NOTARY OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER 0 INDIVIDUAL 0 CORPORATE OFFICER DESCRIPTION OF AllACHED DOCUMENT TITLE OR TYPE OF DOCUMENT TITLE@) 0 PARTNER(S) c] LIMITED 0 AlTORNEY-IN-FACT NUMBER OF PAGES 0 TRUSTEE(S) 0 GUARDIAN/CONSERVATOR 0 OTHER: GENERAL DATE OF DOCUMENT SIGNER IS REPRESENTING: NAME OF PERSON@) OR ENTITY(IES) SIGNER(S) OTHER THAN NAMED ABOVE EXHIBIT A Grueneich Resource Advocate Billing Rates August 10, 1998 I I 1 Dim M. Grueneich $80 Legal Assistant $140 Junior Associate $1 65 Jodi T. London $165 Traci A. Grundon $205 Out-of-pocket costs, such as travel, are billed at cost with no mark-up. Also billed at actual cost are postage, courier deliveries, telephone and any special materials required which are not generally on-hand. Outgoing facsimiles are billed at 50# per page; there is no charge for incoming faxes. In-house photocopies are billed at 20p per page. The client will also be billed for major report reproduction which is more efticiently done professionally out-of-house. . -. October 7, 1998 Grueneich Resource Advocates Attn: Dan Grueneich 582 Market Street, Suite 407 San Francisco, CA 94104 RE: ENERGY CONSULTING SERVICES - ENCINA POWER PLANT Enclosed for your records are copies of Council Agenda Bill No. 14,863 and Council Resolution No. 98-31 7. These documents went before the Carlsbad City Council on September 9, 1998 and were approved. Also enclosed for your files is one original and fully executed Agreement to provide technical, environmental and-public policy consulting services in regards to the Encina Power Plant, now owned by the San Diego Gas & Electric Company. If you have specific questions regarding this agreement, please call Ms. Erin Letsch, Risk Manager, at (760) 434-2807. KATHLEEN D. SHOUP Sr. Office Specialist 1200 Carlsbad Village Drive 0 Carlsbad, CA 92008-1 989 0 (760) 434-2808 @