AGREEMENT
THIS AGREEMENT ("Agreement"), dated for purposes of identification only this day of , 2024, is made and entered into by and between the City of Anaheim, a municipal corporation ("Anaheim"), and Baringa Partners LP, a Delaware limited partnership ("Consultant"). Anaheim and Consultant are individually referred to herein as "Party" and collectively as "Parties."
RECITALS
A. Anaheim is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of the City of Anaheim; and
B. Anaheim desires to engage Consultant's services to assist Anaheim Public Utilities ("APU") as a Project Manager for APU's implementation of the Energy Trading and Risk Management Solutions ("ETRMS") Implementation;
C. Consultant's performance of the Services (defined in Exhibit A) are referred to herein as the "Project"; and
D. Consultant possesses the skill, experience, ability, background, certifications, and knowledge to provide the services for the Project as described in this Agreement; and E. Anaheim has solicited and received a proposal from Consultant, has evaluated the Consultant's previous experience and expertise, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement.
NOW, THEREFORE, for and in consideration of the mutual promises, covenants and conditions herein contained, the Parties agree as follows:
1. SERVICES TO BE PROVIDED BY CONSULTANT
In compliance with all of the terms and conditions of this Agreement, Consultant shall provide to Anaheim all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional consulting services necessary for the Project, which are more particularly described in the Scope of Services attached hereto as Exhibit A and incorporated herein by this reference ("Services"). The Anaheim Public Utilities General Manager ("General Manager"), in their sole discretion, may add, modify, or delete tasks from the Scope of Services.
2. TERM
Unless either Party terminates this Agreement pursuant to Section 24, the term of this Agreement ("Term") shall commence on the Effective Date as defined in Section 37 below, and shall continue for an initial term of fifteen (15) months ("Initial Term"). The General Manager or
designee is authorized to, by executing an extension letter to be signed by both Parties, extend the Term two times, with each extension extending the Term by twelve (12) additional months.
3. TIME OF PERFORMANCE
A. Time is of the essence in the performance of this Agreement and the Services shall be performed to completion in a diligent and timely manner. The failure by Consultant to perform the Services in a diligent and timely manner may result in termination of this Agreement by Anaheim.
B. The time period(s) specified for performance of the Services rendered, pursuant to this Agreement, shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of Consultant, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, pestilence, and other natural catastrophes, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, civil disturbance or disobedience, labor dispute, labor or material shortage, sabotage, government priorities, restraint by court order or public authority and action or non-action by or inability to obtain the necessary authorization or approvals from any governmental agency or authority, and/or acts of any governmental agency, including Anaheim, which by the exercise of due diligence such Party could not reasonably have been expected to avoid and which by exercise of due diligence has been unable to overcome, if Consultant shall within ten (10) days of the commencement of such delay notify the Anaheim's project administrator ("Project Administrator") in writing of the causes of the delay. The Project Administrator shall ascertain the facts and the extent of delay, and may extend the time for performing the Services for the period of the enforced delay if, in the judgment of the Project Administrator, such delay is justified. The Project Administrator's determination shall be final and conclusive upon the Parties to this Agreement. In the event of delay, however caused, Consultant's sole remedy shall be an extension of the Agreement, pursuant to this Section, and Consultant shall not be entitled to recover damages against Anaheim.
4. COMPENSATION
A. Anaheim shall pay Consultant for the Services rendered, pursuant to this Agreement, as set forth in the Schedule of Compensation attached hereto as Exhibit B and incorporated herein by reference ("Schedule of Compensation"). Consultant and Anaheim agree that no changes to the hourly rates set forth in Exhibit B shall be made during the Term without the prior written authorization of the General Manager or designee.
B. Anaheim shall reimburse Consultant for only those costs or expenses specifically approved by the General Manager or designee in writing and in advance.
C. If Consultant obtains the General Manager's or designee's prior written approval of travel costs, then Consultant is eligible for reimbursement of travel costs including transportation, lodging, and meals. For the full Term of this Agreement (i.e., the Initial Term plus any extension), travel costs shall not exceed $350,000 USD ("Reimbursement Amount"). During the Initial Term, travel costs shall not exceed $275,000 USD. During
any Term extension, travel costs shall not exceed $75,000 USD. Any unused portions of travel costs may, at Anaheim's sole discretion, be allocated to compensation for Services, or carried over to subsequent term extensions, if any.
D. Except for increases authorized by Section 4.E(1) (Change Orders for Extra Services), the Parties understand and agreed that full and complete payment for all Services (including, but not limited to, travel expenses and subcOnsultant fees, if any) and Work Orders during the Term of this Agreement shall not exceed Two Million One Hundred Thousand Dollars and no cents ($2,100,000). ("Contract Amount").
E. Subject to the limitations set forth in this Section 4.E, the General Manager or designee is authorized to approve Change Orders for Extra Services, Change Orders for Cost-Neutral Extra Services, and Work Orders.
(1) Change Orders for Extra Services
(a) The General Manager or designee may initiate a written request for Extra Services ("Change Order Request"). In a timely manner, Consultant shall respond to the Change Order Request.
(b) "Extra Services" means services that: (a) were not included in the Scope of Services (Exhibit A) or Work Order(s); (b) are directly relevant to the Project but unanticipated by Anaheim at the time of the Agreement or Work Order approval; and (c) are performed pursuant to the Agreement or a Change Order Request approved as described in this Section 4.E(1).
(c) The General Manager or designee may issue a Change Order for Extra Services if budget appropriations are available and the General Manager or designee determines, in their sole discretion, that: (a) the Extra Services are necessary for the successful completion of the Project; (b) are directly relevant to the Project but unanticipated by Anaheim at the time of the Agreement or Work Order approval; (c) in the opinion of the General Manager or designee, it is in the City's best interest to do so.
(d) The General Manager is authorized to approve additional expenditures for Extra Services not to exceed fifteen percent (15%) of the Contract Amount or, if the Change Order is regarding a Work Order, then 15% of the Work Order Amount. (e) All Extra Services approved in writing by the General Manager or designee shall be billed at either the rates set forth in the Schedule of Compensation or at a fixed price, at Anaheim's sole discretion. If billed at a fixed price, Consultant shall provide Anaheim with a general description of the Extra Services to be performed with a proposed price. The Extra Services will be incorporated into the Services and the Agreement upon the execution of an Extra Services letter by both Parties which contains (a) the agreed price for the Extra Services; and a description of the Extra Services. Consultant shall commence performance of the Extra Services
either upon the execution of the Extra Services letter by the Parties or such other time expressly indicated therein.
(2) Change Orders for Cost-Neutral Extra Services
(a) The General Manager or designee may initiate a Change Order Request for Cost- Neutral Extra Services. In a timely manner, Consultant shall respond to the Change Order Request.
(b) "Cost-Neutral Extra Services" means any services that: (a) were not included within the Scope of Services (Exhibit A) or Work Order; (b) are directly relevant to the Project but unanticipated by Anaheim at the time of the Agreement or Work Order approval; (c) do not result in additional costs to Anaheim; and (d) are performed pursuant to the Agreement or a Change Order Request approved as described in this Section 4.E(2).
(c) The General Manager or designee may issue a Change Order for Cost-Neutral Extra Services if: (a) the General Manager or designee determines, in their sole discretion, that the Cost-Neutral Extra Services are necessary for the successful completion of the Project; (b) are directly relevant to the Project but unanticipated by Anaheim at the time of the Agreement or Work Order approval; and (c) in the opinion of the General Manager or designee, it is in the City's best interest to do so.
(d) The Change Order for Cost-Neutral Extra Services will be incorporated into the Services and the Agreement upon both Parties' execution of a Cost-Neutral Extra Services letter containing a description of the Cost-Neutral Extra Services.
Consultant shall commence performance of the Cost-Neutral Extra Services either upon both Parties' execution of the Cost-Neutral Extra Services letter or such other time expressly indicated therein.
(3) Work Orders
(a) The General Manager or designee may initiate a written request for a Work Order or Order Form ("Work Order Request"). Consultant shall respond to Work Order Requests in a timely manner. The General Manager or designee may then approve the Work Order.
(b) "Work Order" means a written agreement between the Parties for anticipated services (including as-needed professional services) that were not included in the Scope of Services (Exhibit A), and is incorporated into this Agreement. Work Orders may be on either a Time and Materials (T&M) basis, or a fixed price. The Parties will jointly develop a Work Order document that describes, among other things, the following: Summary, Detailed Description, Business Objective(s), Task List, Deliverables, Performance Schedule, Resources, Constraints, Assumptions, Costs (including a breakdown, if applicable), and Payment Schedule. Anaheim will reimburse Consultant for actual travel costs and expenses
required to perform Services required by a Work Order, as long as Anaheim approves the travel costs and expenses prior to the Consultant incurring reimbursable travel and expenses. Consultant shall not bill Anaheim for travel and expenses that are not pre-approved by Anaheim.
(c) Upon the Parties' execution of a Work Order or other time expressly indicated in the Work Order, Consultant shall commence performance of services required by the Work Order. If, however, in the General Manager's or designee's sole determination that an emergency requires immediate work, the General Manager or designee may, in an email or facsimile, authorize up to eight (8) hours of services. The Parties shall memorialize the authorization by executing a Work Order within a reasonable time thereafter.
(4) Except for the authority granted the General Manager or designee in this Section 4.D, no additional Services or Extra Services beyond the scope of this Agreement shall be rendered by Consultant unless such Extra Services is first approved by written amendment to this Agreement.
(5) Consultant shall submit monthly invoices to Anaheim describing the work performed the preceding month. Consultant's invoices shall include the name of the person who performed the work, a brief description of the Services performed and/or the specific task in the Scope of Services to which it relates, the date the Services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. Anaheim shall pay Consultant no later than thirty (30) days after approval of the invoice by Anaheim staff. (6) In no event shall Consultant render Extra Services beyond the scope of this Agreement without the written authorization of the General Manager or designee.
F. All Parties recognize that the continuation of this Agreement after the close of any fiscal year of Anaheim, which fiscal year ends on June 30 of each year, shall be subject to budget approval providing for or covering such contract items as a budget expenditure.
Anaheim does not represent that any such budget item will actually be adopted by the City Council at that time. No penalty shall accrue to Anaheim in the event this provision shall be exercised. Should termination be accomplished in accordance with this Section, a settlement shall be negotiated by the Parties based on monies paid and due for actual items delivered and Services provided.
5. PROJECT MANAGER
A. Consultant shall designate a project manager ("Project Manager"), who shall coordinate the Services. This Project Manager shall be available to Anaheim at all reasonable times during the Term of this Agreement. Consultant has designated Joseph Catarella to be its Project Manager. It is expressly understood that the experience, knowledge, capability and reputation of the foregoing Project Manager is a substantial inducement for Anaheim to enter into this Agreement. Therefore, the foregoing Project Manager shall be responsible during the Term of this Agreement for directing all activities of Consultant
and devoting sufficient time to personally supervise the provision of Services hereunder.
The foregoing Project Manager may not be changed by Consultant and no other personnel may be assigned to supervise the Services to be provided hereunder without the express written authorization of the General Manager or designee.
B. Any personnel or subconsultant, if any, who fail or refuse to perform the Services in a manner acceptable to Anaheim, or who are determined by Anaheim, in its sole discretion, to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, or a threat to the safety of persons or property, shall be promptly removed from the Project by Consultant at the request of Anaheim. Consultant warrants that it will continuously furnish the necessary personnel to complete the Services on a timely basis as contemplated by this Agreement.
6. ADMINISTRATION
A. This Agreement will be administered by the Anaheim Public Utilities Department. The following employees of the Anaheim Public Utilities Department shall be authorized to take the following actions pursuant to this Agreement:
(1) The General Manager is authorized to take any action on behalf of Anaheim as set forth herein in this Agreement, including, but not limited to, extension of the Term pursuant to Section 2, and termination of the Agreement on behalf of the Anaheim in accordance with Section 24. Except for termination of the Agreement, the General Manager may authorize a designee to take actions on behalf of the General Manager. (2) Anaheim shall identify the Project Administrator by written notice to Consultant.
Anaheim may change the Project Administrator at any time and will provide Consultant written notice as soon as it is practical.
(3) The Project Administrator shall have the power to act on behalf of Anaheim for review and approval of all Services performed by Consultant under this Agreement.
The Project Administrator is not authorized to terminate Services under this Agreement. Furthermore, unless selected as the General Manager's designee, the Project Administrator shall not be authorized to approve Change Orders for Extra Services (cost-neutral or otherwise), Work Orders, or changes in billing rates.
7. STANDARD OF CARE
A. Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services.
Consultant warrants that all employees and subconsultants, if any, shall have sufficient skill and experience to perform the Services assigned to them. By delivery of completed work, Consultant certifies that the work conforms to the requirements of this Agreement; all applicable federal, state and local laws; and the professional standard of care.
B. Consultant represents and warrants to Anaheim that it has, shall obtain, and shall keep in full force in effect during the Term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Anaheim business license during the Term.
8. FAMILIARITY WITH WORK
By executing this Agreement, Consultant represents and warrants that Consultant: (i) has thoroughly investigated and considered the Services to be performed; (ii) has carefully considered how the Services should be provided; and (iii) fully understands the facilities, difficulties and restrictions attending the provision of the Services under this Agreement. Should Consultant discover any latent or unknown conditions materially differing from those inherent in the provision of such Services or as represented by Anaheim, Consultant shall immediately inform Anaheim of such fact and shall not proceed except at Consultant's risk until written instructions are received from Anaheim.
9. INDEPENDENT CONTRACTOR
A. Neither Anaheim nor any of its employees shall have any control over the manner, mode or means by which Consultant, its agents or employees, perform the Services, except as otherwise set forth herein. Except as expressly provided herein, Anaheim shall have no voice in the selection, discharge, supervision or control of Consultant's employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. Consultant shall perform all Services as an independent contractor of Anaheim and shall remain at all times, as to Anaheim, a wholly independent contractor with only such obligations as are consistent with that role. Consultant shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of Anaheim. Anaheim shall not in any way or for any purpose become or be deemed to be a partner of Consultant in its business or otherwise or a joint venture or a member of any joint enterprise with Consultant.
B. In consideration for the compensation paid to Consultant by Anaheim, Consultant agrees that Anaheim shall not be liable or responsible for any benefits, including, but not limited to, worker's compensation, disability, retirement, life, unemployment, health or any other benefits, and Consultant agrees that it shall not sue or file a claim, petition or application therefor against Anaheim or any of its officers, employees, agents, representatives or sureties.
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10. INSURANCE
A. Without limiting Anaheim's right to indemnification, it is agreed that Consultant shall secure, prior to commencing any activities under this Agreement, and maintain, during the term of this Agreement, insurance coverage as follows:
(1) Workers' Compensation Insurance as required by California law and Employers Liability Insurance in an amount not less than $1,000,000 per occurrence/accident/illness/injury.
(2) Commercial General Liability Insurance, including coverage for Premises and Operations, Contractual Liability, Personal Injury Liability, Products/Completed Operations Liability, as well as Independent Consultant's Liability where appropriate, in an amount not less than $2,000,000 per occurrence, $4,000,000 annual aggregate, written on an occurrence form. Such insurance shall be written on a primary basis but may include a deductible or self-insured retention of more than $10,000 per occurrence, provided that such deductible or self-insured retention is disclosed to Anaheim, in writing, at the inception of this Agreement. (3) Commercial Automobile Liability Coverage including—as applicable—owned, non- owned, and hired autos, in an amount not less than $2,000,000 per occurrence, combined single limit, as required by California law.
(4) Professional Liability Insurance, inclusive of Cyber Liability Insurance, where required in an amount not less than $2,000,000 per occurrence or per claim. Such insurance shall be written on a primary basis but may include a deductible or self- insured retention of more than $10,000 per occurrence, provided that such deductible or self-insured retention is disclosed to Anaheim, in writing, at the inception of this Agreement.
B. Any required coverage written with primary and excess layers to satisfy the minimum requirements of this Agreement must be submitted for approval by Anaheim's Risk Manager prior to the inception of the final Agreement.
C. Consultant agrees that this insurance shall not be voluntarily cancelled by Consultant or limited in scope or coverage by Consultant until after thirty (30) days' prior written notice has been given to the City Clerk, City of Anaheim, 200 S. Anaheim Blvd., Anaheim, CA 92805. This does not apply to cancellation for non-payment of premium, which requires notice of not less than ten (10) days.
D. Each insurance policy required by this Agreement, except policies for Professional Liability and Workers' Compensation, shall contain the following clauses or shall otherwise provide for the following conditions:
(1) "It is agreed that any insurance maintained by Consultant pursuant to this Agreement shall be primary to, and not contribute with, any insurance or self-insurance maintained by the City of Anaheim."
(2) "The City of Anaheim, its officers, agents, employees, representatives and Anaheim- designated volunteers are added as additional insured as respects the acts, omissions, operations and activities of, or on behalf of, the named insured, in regard to products supplied to, or work or services performed for, or related to, the City of Anaheim." E. Prior to commencing any work under this Agreement, Consultant shall deliver to Anaheim insurance certificates confirming the existence of the insurance required under this Agreement, and including the applicable clauses referenced above. Also, within thirty (30) days of the execution date of this Agreement, Consultant shall provide Anaheim (i) endorsements to the insurance policies that add to these policies the applicable clauses referenced above, or (ii) in lieu of said endorsements, documentation acceptable to Anaheim evidencing that the coverage, terms, and conditions set forth in the above-referenced clauses are otherwise included in said insurance policies. Insurance required hereunder shall be placed with insurers (i) admitted to write insurance in California, (ii) possessing an A. M. Best's rating of A VII or higher, or (iii) otherwise acceptable to Anaheim, with prior written permission from Anaheim. In the event that a claim or other legal action is filed against Anaheim, and if Anaheim, in its good faith opinion, believes it may have coverage under any of the insurance required herein, then Anaheim has the right to demand, and to receive within a reasonable time period, copies of the insurance policies related to such required insurance; provided, however, that this provision shall not apply if the parties agree that Consultant shall fully defend, hold harmless, and indemnify Anaheim against any such claim or other legal action.
F. In addition to other remedies Anaheim may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, Anaheim may, at its sole option:
(1) Order Consultant to stop work under this Agreement and/or withhold any payment(s) that become due to Consultant hereunder until Consultant demonstrates compliance with the requirements hereof;
(2) Terminate this Agreement.
G. Exercise of any of the above remedies, however, is an alternative to other remedies Anaheim may have and is not the exclusive remedy for Consultant's failure to maintain insurance or secure appropriate endorsements.
H. Nothing herein contained shall be construed in any way as limiting the extent that Consultant may be held responsible for payments of damages to persons or property resulting from Consultant's, (or Consultant's agent or sub-agent, if any) performance of the work covered under this Agreement.
I. In the event Consultant hires other persons or firms to perform some of the work related to this Agreement, Consultant shall ensure (i) that the acts or omissions of such persons or firms are covered under the above-referenced liability insurance, or (ii) that such firms maintain insurance equal to or better than, and subject to the same limits, terms and conditions as, the insurance required of Consultant under this Agreement (except for
firms that are not performing professional services—such firms shall not be required to carry the above-referenced professional liability insurance); and in either instance, Consultant shall provide, or cause to be provided, evidence of such insurance coverage, reasonably acceptable to Anaheim.
J. Anaheim's Risk Manager is hereby authorized to amend the requirements set forth herein in the event such reduction is in Anaheim's best interest.
11. INDEMNIFICATION
A. As respects acts, errors or omissions in the performance of professional services, Consultant agrees to indemnify and hold harmless Anaheim, its officials, officers, and employees from and against any and all claims, losses, damages, defense costs, or liability, of any kind or nature, directly arising out of the negligent acts, errors or omissions of the Consultant or any sub-agent in the performance of professional services under this Agreement.
B. As respects all acts, errors or omissions that do not arise directly out of the performance of professional services, including but not limited to those acts, .errors or omissions typically covered by general and automobile liability insurance, Consultant agrees to indemnify, defend (at Anaheim's option), and hold harmless Anaheim, its officials, officers, employees, agents, and representatives from and against any and all claims, losses, damages, defense costs, or liability, of any kind or nature (collectively referred to hereinafter as "Claims"), arising out of or in connection with Consultant's (or Consultant's Agent or Sub-Agent, if any) acts, errors, omissions, or work, relative to this Agreement, except for those Claims that arise out of the sole negligence or willful misconduct of Anaheim.
C. The obligations set forth in this indemnification provision (i) shall be in effect without regard to whether Anaheim, Consultant or any other person or entity maintains or fails to maintain insurance coverage or a self-insurance program, for any such Claim(s); and (ii) shall survive the termination of this Agreement.
D. Except for willful misconduct or gross negligence, neither the Consultant nor their agents or employees or affiliates shall be jointly, severally or individually liable to Anaheim in excess of the proceeds of the available professional liability insurance coverage required under this Agreement.
12. INTELLECTUAL PROPERTY INDEMNITY
Consultant shall defend and indemnify Anaheim, its agents, officers, representatives and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in the work product or documents provided by Consultant to Anaheim pursuant to this Agreement.
13. PERFORMANCE OF SERVICES
Consultant is responsible for keeping the Project Administrator and/or the Project Administrator's designees informed on a regular basis regarding the status and progress of the Services, activities performed and planned, and any meetings that have been scheduled or are desired.
14. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
The Parties recognize that a substantial inducement to Anaheim for entering into this Agreement is the professional reputation, experience and competence of Consultant. Neither the whole nor any interest in, nor any of the rights or privileges granted under this Agreement shall be assigned, transferred or encumbered in any way without the prior written consent of Anaheim.
Any such purported assignment, transfer, encumbrance, pledge, subuse, or permission given without such consent shall be void as to Anaheim. If Anaheim approves an assignment or transfer, this Agreement and the covenants and conditions contained herein shall be binding upon and inure to the benefit of and shall apply to the permitted successors and assigns of Consultant.
15. SUBCONTRACTING
Except for those subcontractors set forth in the Scope of Services, if any, Consultant shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of Anaheim. Consultant shall be fully responsible to Anaheim for all acts and omissions of any approved subcontractor. Nothing in this Agreement shall create any contractual relationship between Anaheim and subcontractor nor shall it create any obligation on the part of Anaheim to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. Anaheim is an intended beneficiary of any work performed by any subcontractor for purposes of establishing a duty of care between the subcontractor and Anaheim pursuant to this Agreement.
16. USE AND OWNERSHIP OF DOCUMENTS AND DATA
A. Anaheim shall furnish to Consultant such documents and materials as may be relevant and pertinent to the provision of Services hereunder as Anaheim may possess or acquire.
B. All documents and materials furnished by Anaheim to Consultant, pursuant to Section
16.A, shall remain the property of Anaheim and shall be returned to Anaheim upon termination of this Agreement, for any reason. All documents or material prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of Anaheim, and Anaheim shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's sole cost and expense, provide such documents and material to Anaheim upon prior written request.
C. Documents and material prepared by Consultant, pursuant to this Agreement, are not intended or represented to be suitable for reuse by Anaheim or others on any other
project. Any use of completed documents for other projects and any use of incomplete documents without specific written authorization from Consultant will be at Anaheim's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by Anaheim or persons other than Consultant, is waived against Consultant and Anaheim assumes full responsibility for such changes unless Anaheim has given Consultant prior notice and has received from Consultant written consent for such changes.
17. CONFIDENTIALITY
A. "Confidential Information" means, with respect to a Party hereto, all information or material which either (1) is marked or identified as "Confidential," "Restricted," or "Proprietary Information" or other similar marking or identification, or (2) the other Party knew, as recipient, or under the circumstances, should have known, was considered confidential or proprietary by the Disclosing Party (as defined below). Confidential Information shall consist of all information, whether in written, oral, electronic, or other form, furnished in connection with this Agreement by the Disclosing Party or its Representatives ("Representative" is defined as any elected and appointed officials, affiliate, director, officer, employee, agent, advisor or consultant of a Party or any of its subsidiaries or affiliates) to the Receiving Party (as defined below) or to its Representatives, and specifically includes but is not limited to Anaheim's individually identifiable customer information, and Anaheim's customer usage data and financial data.
B. Consultant and Anaheim shall each hold the other's Confidential Information in confidence. Neither Party shall make the other's Confidential Information available in any form to any third party or use the other's Confidential Information for any purpose other than as specified in this Agreement. The Party providing Confidential Information ("Disclosing Party") to the other Party ("Receiving Party") shall remain the sole owner of such information. Except as provided elsewhere within this Agreement, nothing contained in this Agreement shall be construed as granting or conferring any right or license in any Confidential Information or in any patents, copyrights, software or other technology, either expressly or by implication to the Receiving Party, or to its Representatives or to others. The term Confidential Information shall not include any of the following: (1) information already in possession of, or already known to, the Receiving Party as of the Effective Date without an obligation of confidentiality; (2) information in the public domain at the time of the disclosure, or which, after such disclosure, enters into the public domain through no breach of this Agreement by the Receiving Party or its Representative(s); (3) information lawfully furnished or disclosed to the Receiving Party by a non-party to this Agreement without any obligation of confidentiality and through no breach of this Agreement by the Receiving Party or its Representative(s); (4) information independently developed by the Receiving Party without use of any Confidential Information of the Disclosing Party; or (5) information authorized in writing by the Disclosing Party to be released from the confidentiality obligations herein.
C. By virtue of this Agreement, each Party hereto may disclose to the other Party information that is Confidential Information. This Agreement does not diminish, revoke or supersede any existing confidentiality, non-disclosure or similar agreement between the Parties that does not pertain to the subject matter of this Agreement. However, any Confidential Information, whether or not previously disclosed, that pertains to the subject matter of this Agreement shall be governed by the terms of this Section 17 which shall supersede any such previous agreement with respect to such Confidential Information and any Confidential Information relating to the subject matter of this Agreement that was exchanged under such previous agreement it shall be treated as though it was exchanged under this Agreement as of the date of such exchange.
D. The Receiving Party will treat all Confidential Information of the Disclosing Party, no matter written, electronic, or oral, as confidential and proprietary, and the Receiving Party shall only use such information in furtherance of this Agreement. As such, the Receiving Party shall hold in confidence the Confidential Information of the Disclosing Party, and ensure that such Confidential Information is not disclosed to any other person or entity, except as expressly permitted by this Agreement or as authorized in writing by the Disclosing Party. Receiving Party shall not disclose Confidential Information of the Disclosing Party received under this Agreement to any person other than its Representatives who require knowledge of such Confidential Information in furtherance of this Agreement. The Receiving Party shall inform its Representatives of the confidential nature of the Confidential Information of the Disclosing Party and advise such Representatives of the limitations on the use and disclosure and prohibition on making copies or summaries of such Confidential Information. The Receiving Party shall be responsible for any breach of this Agreement by its Representatives. Neither Party shall use the Confidential Information of the other Party for any commercial purpose.
E. If the Receiving Party becomes legally compelled (by oral questions, interrogatories, request for information or documents, subpoena, civil investigative demand, or similar process) to disclose any Confidential Information of the Disclosing Party or is requested Confidential Information pursuant to the California Public Records Act or similar law, the Receiving Party will provide the Disclosing Party with written notice of such an occurrence (if so permitted) as soon as possible. Thereafter, at its sole costs and expense, the Disclosing Party may seek a protective order or other appropriate remedy, or waive compliance with the provisions of this Agreement. So long as it is consistent with applicable law, the Receiving Party will not oppose action by, and the Receiving Party will cooperate with, the Disclosing Party, at the Disclosing Party's sole cost and expense, to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information. If the Disclosing Party fails to obtain such protective order or other remedy, or if the Disclosing Party waives compliance with the requirements of the preceding sentence, the Receiving Party will disclose only that Confidential Information that it is legally required to disclose, and will exercise commercially reasonable efforts, at Disclosing Party's expense, to obtain reliable assurance that confidential treatment will be accorded the Confidential Information so disclosed.
F. In the event the Receiving Party discloses, disseminates or releases any Confidential Information, except as expressly permitted by this Agreement, such disclosure, dissemination or release will be deemed a material breach of this Agreement and the Disclosing Party may demand prompt return of all Confidential Information previously provided to the Receiving Party. As soon as the Receiving Party becomes aware that it has made an unauthorized disclosure of Confidential Information, the Receiving Party shall take any and all necessary actions to recover the improperly disclosed Confidential Information and immediately notify Disclosing Party regarding the nature of the unauthorized disclosure and the corrective measures being taken. Each Party agrees that any breach of their confidentiality obligations could cause irreparable harm to the other Party, the amount of which would be extremely difficult to estimate. Accordingly, it is understood and agreed that monetary damages would not be a sufficient remedy for any material breach of this Agreement and that specific performance and injunctive relief in addition to monetary damages shall be appropriate remedies for any breach or any threat of such breach. The provisions of this Paragraph are in addition to any other legal rights or remedies the Disclosing Party may have.
G. Within two (2) weeks of the termination of this Agreement, Consultant will return to Anaheim or destroy, to the extent permitted by law, any and all Confidential Information, including all originals, copies, translations, transcriptions or any other form of material, without retaining any copy or duplicate thereof; provided that Consultant may retain Confidential Information contained on backup media created in the ordinary course of business provided further that there is no effort to access such Confidential Information and Consultant's confidential obligations with respect to such information shall continue so long as such information is retained. Consultant shall certify in writing the destruction of the Confidential Information. Anaheim may perform an audit of Consultant's records to confirm the return or destruction of the Confidential Information. Anaheim shall have this audit right for three (3) years after the termination of this Agreement.
H. Notwithstanding the termination of this Agreement, this Confidentiality Section shall survive the expiration or earlier termination of this Agreement.
18. FISCAL RECORDS AND AUDIT
A. Consultant shall keep records and invoices in connection with the Services. Consultant shall use recognized accounting methods in preparing such reports and invoices.
Anaheim reserves the right to designate its own employee representative(s) or its contracted representative(s) with a certified public accounting firm who shall have the right to audit Consultant's accounting procedures and internal controls of Consultant's financial systems and to examine any cost, revenue, payment, claim, other records or supporting documentation resulting from any items set forth in this Agreement. If Consultant fails to provide supporting documentation satisfactory to Anaheim for costs charged, then Consultant agrees to reimburse Anaheim for those costs. Any such audit(s) shall be undertaken by Anaheim or its representative(s) at reasonable times and in conformance with generally accepted auditing standards. Consultant agrees to fully cooperate with any such audit(s).
B. This right to audit shall extend during the length of this Agreement and for a period of three (3) years, or longer if required by law, following the date of final payment under this Agreement. Consultant agrees to retain all necessary records/documentation for the entire length of this audit period.
C. Consultant will be notified in writing of any exception taken as a result of an audit. Any adjustments and/or payments which must be made as a result of any such audit or inspection of Consultant's invoices and/or records shall be made within thirty (30) days from presentation of Anaheim's findings to Consultant. If Consultant fails to make such payment, Consultant agrees to pay interest, accruing monthly, at a rate of ten percent (10%) per annum unless another section of this Agreement specifies a higher rate of interest, then the higher rate will prevail. Interest will be computed from the date of written notification of exception(s) to the date Consultant reimburses Anaheim for any exception(s). If an audit inspection or examination in accordance with this article discloses overcharges (of any nature) by Consultant to Anaheim in excess of one percent (1%) of the value of that portion of the Agreement that was audited, the actual cost of Anaheim's audit shall be reimbursed to Anaheim by Consultant.
19. WITHHOLDINGS
Anaheim may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue the Services as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or designee with respect to such disputed sums and his decision shall be final.
Consultant shall be entitled to receive interest on any withheld sums at the rate of return that Anaheim earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld.
20. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to Anaheim greater than what would have resulted if there were not errors or omissions in the Services performed by Consultant, the additional cost and expense shall be borne by Consultant. Nothing in this paragraph is intended to limit Anaheim's rights under the law or any other sections of this Agreement.
21. ANAHEIM'S RIGHT TO EMPLOY OTHER CONSULTANTS
Consultant acknowledges and agrees that this Agreement and the provision of services hereunder are nonexclusive, and that Anaheim may enter into similar agreements with other entities for the provision of similar services.
22. CONFLICTS OF INTEREST
Consultant agrees to comply with any provisions of the California Political Reform Act of 1974 ("Act") that might apply to its provision of Services pursuant to this Agreement. Failure to
comply with the Act constitutes a material breach and is grounds for immediate termination of this Agreement by Anaheim. Consultant shall indemnify and hold harmless Anaheim for any, and all claims for damages resulting from Consultant's violation of this Section.
23. NOTICES
All notices, demands or other writings to be made, given or sent hereunder, or which may be so given or made or sent by either Anaheim or Consultant to the other shall be deemed to have been given when in writing and personally delivered or if mailed on the third (3rd) day after being deposited in the United States mail, certified or registered, postage prepaid, and addressed to the respective Parties at the following addresses:
If to Anaheim:
With copies to:
To Consultant:
Anaheim City Clerk
City of Anaheim
200 S. Anaheim Boulevard, 2nd Floor
Anaheim, California 92805
FAX No. (714) 765-4105
Public Utilities General Manager
City of Anaheim
201 S. Anaheim Blvd., Suite 1101
Anaheim, CA 92805
FAX No. (714) 765-4138
Baringa Partners, LP
10 Grand Central, 155 E. 44th Street, 22nd Floor
New York, NY 10017
Attention: Joe Catarella
Telephone No. 214-991-0185
Email: Joe.Catarellai6 baringa.com
Each Party may change its address or FAX for notice by providing written notice to the other in accordance with this Section.
24. ENFORCEMENT OF AGREEMENT
A. Events of Default.
(1) For purposes of this Section 24, the word "Default" shall mean the failure of Consultant to perform any of Consultant's duties or obligations or the breach by Consultant of any of the terms and conditions set forth in this Agreement. In addition, Consultant shall be deemed to be in Default upon Consultant's (i) application for, consent to, or suffering of, the appointment of a receiver, trustee or liquidator for all or a substantial portion .of its assets; (ii) making a general assignment for the benefit
of creditors; (iii) being adjudged bankrupt; (iv) filing a voluntary petition or suffering an involuntary petition under any bankruptcy, arrangement, reorganization or insolvency law (unless in the case of an involuntary petition, the same is dismissed within thirty (30) days of such filing); or (v) suffering or permitting to continue unstayed and in effect for fifteen (15) consecutive days any attachment, levy, execution or seizure of all or a substantial portion of Consultant's assets or of Consultant's interests hereunder.
(2) Anaheim shall not be deemed to be in Default in the performance of any obligation required to be performed by Anaheim hereunder unless and until Anaheim has failed to perform such obligation for a period of thirty (30) days after receipt of written notice from Consultant specifying in reasonable detail the nature and extent of any such failure; provided, however, that if the nature of Anaheim's obligation is such that more than thirty (30) days are required for its performance, then Anaheim shall not be deemed to be in Default if Anaheim shall commence to cure such performance within such thirty (30) day period and thereafter diligently prosecute the same to completion.
B. Immediate Termination for Consultant's Default. In the event of any Default by Consultant, Anaheim may immediately terminate this Agreement. Such termination shall be effective immediately upon receipt by Consultant of written notice from Anaheim. In such event, Consultant shall have no further rights hereunder, and Anaheim shall have all other rights and remedies as provided by law.
C. Termination Without Cause. Anaheim may terminate this Agreement at any time without the necessity of cause or Default by giving seven (7) days notice in writing to Consultant. In such event, the Parties shall have no further rights hereunder, except that Consultant shall be paid for all services adequately rendered prior to such termination.
Consultant may not terminate this Agreement except for cause.
D. Consultant shall not be relieved of liability to Anaheim for damages sustained by Anaheim by virtue of any breach of Agreement by Consultant, and Anaheim may withhold any payments to Consultant for the purpose of set-off until such time as the exact amount of damages due Anaheim from Consultant is determined. In addition, Anaheim may pursue all remedies available under law for breach of this Agreement. The waiver by either party of any breach to this Agreement shall not constitute a waiver as to any succeeding breach.
E. The General Manager is authorized to terminate this Agreement on behalf of Anaheim in accordance with the provisions of this Section 24.
25. COMPLIANCE WITH ALL LAWS
Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall
conform to applicable local, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator.
26. WAIVER
A waiver by either Party 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.
27. INTEGRATED CONTRACT
This Agreement and the Exhibits hereto contain the entire agreement of Anaheim and Consultant with respect to the matters covered hereby, and no agreement, statement or promise made by either Anaheim or Consultant which is not contained herein, shall be valid or binding.
No prior agreement, understanding or representation pertaining to any matters covered hereby shall be effective for any purpose.
28. CONFLICTS OR INCONSISTENCIES
In the event there are any conflicts or inconsistencies between this Agreement and the Exhibits, or any other attachments attached hereto, the terms of this Agreement shall govern.
29. INTERPRETATION
Each Party acknowledges that it has had the benefit of advice of competent legal counsel with respect to its decision to enter this Agreement. The provisions of this Agreement shall be interpreted to give effect to their fair meaning and shall be construed as prepared by both Parties.
30. AMENDMENTS
This Agreement may be modified or amended only by a written document executed by both Consultant and Anaheim, and approved as to form by the Anaheim City Attorney's Office.
31. SEVERABILITY
If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be held invalid or unenforceable, the remainder of this Agreement, or the application of its terms and provisions to persons and circumstances other than those to which it has been held invalid or unenforceable shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
32. REMEDIES CUMULATIVE
The remedies given to Anaheim and Consultant herein shall be cumulative and are given without impairing any other rights given Anaheim or Consultant by statute or law now existing or hereafter enacted and the exercise of any one (I) remedy by Anaheim or Consultant shall not exclude the exercise of any other remedy.
33. NO THIRD PARTY BENEFICIARIES
The Parties intend that neither rights nor remedies be granted to any third party as a beneficiary of this Agreement or of any covenant, duty, obligation or undertaking established herein.
34. CONTROLLING LAW AND VENUE
The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, California.
35. DISCRIMINATION
Consultant agrees not to discriminate against any person or class of persons by reason of sex, color, race, creed, religion, marital status, handicap, ancestry, national origin or other prohibited basis in its provision of Services or hiring of subcontractors or employees. To the extent this Agreement provides that Consultant offer accommodations or services to the public, such accommodations or services shall be offered by Consultant to the public on fair and reasonable terms.
36. AUTHORITY
Each individual executing this Agreement on behalf of a corporation, nonprofit corporation, partnership or other entity or organization, represents and warrants that he or she is duly authorized to execute and deliver this Agreement on behalf of such entity or organization and that this Agreement is binding upon the same in accordance with its terms. Consultant shall, at Anaheim's request, deliver a certified copy of its governing board's resolution or certificate authorizing or evidencing such execution.
37. EFFECTIVE DATE
This Agreement shall be effective on the date on which this Agreement is executed by Anaheim ("Effective Date").
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed on the dates hereinafter respectively set forth.
CITY OF Anaheim,
DATE: a municipal corporation
By:
Dukku Lee,
Public Utilities General Manager
DATE:
ATTEST
By:
Theresa Bass, City Clerk
BARINGA PARTNERS LP
By: Baringa rtners LLC, its General Partner
DATE: Vi tbe r, By:
oseph Catarella
Title: AIL
APPROVED AS TO FORM:
ANAHEIM CITY ATTORNEY'S OFFICE
r 0,
By:
4 Teresa Chen, 0 suty Cit Attori
151440.14/151698
7c6
EXHIBIT A
SERVICES
[ATTACHED BEHIND THIS PAGE]
EXHIBIT A
SCOPE OF SERVICES
I. Project Location(s):
• 201 S. Anaheim Blvd, Anaheim, CA
• 2500 City West Blvd, 2nd Floor, Houston, TX 77042
Coronavirus: Where it is planned that Consultant staff will provide the Services at a APU site but are unable to do so due to the medical policies (including precautionary medical measures) of either Party, then Consultant staff may perform the Services remotely at a site designated by Consultant. Where the Services are adversely affected by such change in the site delivery location or availability of impacted Consultant or APU staff, the Parties will seek to agree and record any resultant reasonable adjustment to the scope of Services and decrease of charges.
Charge increases are prohibited unless otherwise authorized by this Agreement.
II. General Description
The "Project" consists of providing Project Manager services to the City of Anaheim, Public Utilities Department (Anaheim Public Utilities or "APU") as APU implements a new Energy Trading & Risk Management System (ETRMS) and Bid to Bill System that meets energy trading, risk management and settlement needs from front, middle, and back office.
III. Description of Services
As part of providing Project Manager services, Consultant will perform and provide the following during the two-phase 15-month implementation Project.
Project Phases & Timeline
M1 I M2 I M3 M4 MS M6 M7 M8 M9 M10 Mll M12 M13 M14 M15 ' ' L PHASE II
IMPLEMENT
TEST/GO LIVE
HYPERCARE
Delays due to ETRMS vendor product issues or missing functionality that increases the timeline could impact the Consultant's timeline and cost.
Phase I - Implementation Project Management Services
A. Assist with the development and refinement of ETRMS vendor statement of work (SOW).
B. Develop the ETRMS implementation plan and implementation schedule in coordination with the selected ETRMS vendor and APU, which includes completion of key functions in the ETRMS, testing of actual scenarios and processes, and running legacy and new systems in parallel to ensure the integrity of the new system.
Exhibit A - Page 1 of 6
C. Acting as APU's Project Manager, support day-to-day management of the ETRMS implementation, including coordination between APU staff and the selected ETRMS vendor, timely escalation of issues, scheduling meetings and preparing agendas, and working with APU with the selected ETRMS vendor to fix and address issues.
D. Manage and maintain a defect log which shall include a list of open/outstanding items that need to be addressed by the selected ETRMS vendor, including when the issue was identified, who identified the issue, how it will be remedied, and the estimated completion of the issue. This list will also be used for progress reports.
E. Facilitate timely resolution of issues identified in the defect log.
F. Provide weekly updates and hold monthly meetings with the Executive Steering Committee, which will include progress reports, monthly budget/spend reports, key milestones achieved, setbacks, and recommendations to the Executive Steering Committee.
G. Serve as an advocate for APU with issues that may be escalated between the selected ETRMS vendor and APU.
H. Develop a data migration strategy and plan in coordination with APU staff I. Develop testing plan, testing matrix, testing metrics, and test case scripts for the ETRMS implementation.
J. Facilitate and assist in testing and validation to ensure compliance with contractual requirements.
K. Administer and evaluate system performance tests.
L. Communicate with stakeholders regarding their needs, and ensure these needs are properly addressed by the selected ETRMS vendor. These needs would include (but are not limited to) processes, procedures, reports, data extraction, data recovery, and manual data entry of missing or erroneous data.
M. Identify any existing, or new reports necessary for continued compliance with internal and/or external needs. Work with the selected FIRMS vendor to develop automated reports within the ETRMS to meet these needs.
N. Develop and implement an overall training strategy plan and oversee the proper training of staff, ensuring appropriate procedures and manuals are developed and provided to APU staff.
0. Provide oversight of selected ETRMS vendor timelines, budget, and contractual requirements.
P. Plan and support pre-Go-Live organizational readiness activities, including a list of items/functions that must pass testing before a Go-Live decision can be made.
Q. Prepare and oversee the cut-over from the legacy system to the new system, including preparing a list of items that need to be completed before cut-over can occur.
R. Provide professional services to assist with APU assigned tasks to implement ETRMS.
S. Integration with internal and external systems, including, but not limited, to Platt's pricing, Supervisory Control and Data Acquisition (SCADA), the City's financial system, and the CAISO SFTP server and market portal.
T. Analysis of existing front, middle and back-office processes, documenting current workflows, identifying pain points, and defining desired future processes. Configuration and customization of the ETRMS solution to meet APU's specific requirements. This may involve, but not limited to, defining resource configuration, configuring trade templates, and setting up routine reporting schedules.
Exhibit A - Page 2 of 6
U. Data migration from existing systems to the new ETRMS.
V. Testing and validation of the solution to ensure its functionality and compatibility with APU's processes and procedures.
W. Training and support for end-users and administrators.
X. Project Management and Organizational Change Management (OCM) to facilitate a smooth transition to the new ETRMS.
Phase II— Post Implementation Hypercare
This phase requires oversight of ETRMS Go-Live with aggressive post-implementation system monitoring, compiling, and troubleshooting the "punch list" of necessary fixes, identifying additional training needs, and producing a management review of the ETRMS project.
A. Develop post ETRMS implementation plan.
B. Identify and manage post ETRMS Go-Live adaptation challenges.
C. Coordinate fixes for issue and defect logs.
D. Identify additional training and procedure updates needed by staff.
E. Work with APU to get formal sign-off that project is complete.
F. Archive project files for future reference and use.
G. Identify required system updates or enhancements.
In providing the Services, Consultant will not be providing APU with any legal or financial investment advice or advice for which a regulatory licence is required.
IV. Resource Plan
Project Group Project Role Level
Core Team Engagement Lead Partner
Program Manager Director
Sr. Business Analyst Manager
Business Analyst Analyst
SME Support US Power SME Various
Exhibit A - Page 3 of 6
V. Deliverables
As part of the Services, Consultant will work to provide the following work products ("Deliverables").
# Deliverable Description Milestone
1 Vendor Statement of
Work
Format: MS Visio
Documents ETRMS vendor SOW Plan
2 Resource & Project Plan Format: MS PT
Documents resource & project plan with
dependencies
Design
3 Governance Structure,
Communications Plan,
RACI
Format: MS PPT
Documents the governance &
communication plan and RACI
4 Requirements Matrix Format: MS Excel
Documents the business requirements
5 KDD Inventory Format: MS Excel
Captures the key Design Decisions for the
ETRMs
6 Data Migration Strategy Format: MS PPT
Documents the approach and plan for data
migration
7 Test Strategy Format: MS PPT
Documents the approach and plan for testing
8 Training Strategy Format: MS PPT
Documents the approach and plan for
training
9 Future State Business
Processes
Format: MS PPT
Documents the Future state business
processes including controls (L1, L2, L3) Implement
10 Training Manuals Format: MS Word
Documents the training for the users
Exhibit A - Page 4 of 6
# Deliverable Description Milestone
11 Test Cases / Scripts / Data
set
Format: MS EXCEL
Documents the testing cases, scripts and data
required
Implement
(continued)
12 Unit Testing Format: MS EXCEL
Documents testing schedule, and results
13 UAT Responsibilities
Matrix
Format: MS EXCEL
Identifies roles and responsibilities for UAT
14 UAT / Parrel Test
Execution
Format: MS EXCEL
Documents test plan for UAT and Panel
operations
Test / Go Live
15 Configuration &
Envionment Management
Approach
Format: MS PPT
Identifies the method for configuration and
environment management
16 Compliance for IT
Controls
Format: MS EXCEL
Documents the IT Controls have been met in
the implementation
17 Cutover and Hypercare
Plan
Format: MS PPT
Documents the plan for cutover and hyper-
care
18 Issue / Back log Format: MS EXCEL
Documents issues and back log items
Hypercare
19 Hyper-care Status Report Format: WORD
Documents status during Hypercare
VI. Assumptions and Dependencies
In agreeing to perform the Services, Consultant will rely on the following assumptions ("Assumptions") as being correct and complete, and the following dependencies ("Dependencies") being met and performed:
A. Functional design documentation for the ERTMS or Bid to Bill System are not included in Consultant's scope and will be the responsibility of the ETRMS vendor. Consultant will Exhibit A - Page 5 of 6
assist the ETRMS vendor with translating the requirements (as needed) and help develop the right solution.
B. Expectation is the work will be delivered onsite at APU office or remote from the Consultant's Houston office when not onsite.
C. The Consultant team will be given timely access to office locations, resources and key stakeholders to enable performance of the Services.
D. ETRMS and Bid to Bill Vendor(s) are responsible for the configuration of their respective solutions.
E. Data Migration scripting / development (if required) will be handled by APU or third-party party and is not in the Consultant scope.
Exhibit A - Page 6 of 6
EXHIBIT B
SCHEDULE OF COMPENSATION
[ATTACHED BEHIND THIS PAGE]
EXHIBIT B
SCHEDULE OF COMPENSATION
I. General
Except as authorized by the Agreement, Consultant's compensation shall not exceed $2,100,000 as stated in Section 4 of the Agreement.
II. Milestone Payment Structure
A. Except for Services rendered on a time and materials basis, Consultant's Services shall be compensated based on a progress payment structure. Upon completion of each of the phases ("Milestones") identified below, Consultant shall submit invoices (and any supporting documents Anaheim requires) for each Milestone.
B. The GM or designee may, in mutual agreement with the Consultant, determine that Invoice Amounts for Invoice Milestones 2 through 6 require adjustments. The Parties may adjust Invoice Amounts by confirming adjustments in writing without a formal amendment.
Invoice
Milestone
Phases
(Milestones)
Deliverables Estimated
Invoice Date Invoice Amount
1 Plan
• Vendor Statement of Work
Month 3
Based on Time and
Materials using Rates in
the table in Section III
below, and shall not
exceed up to $65,000
2 Design
• KDD Inventory
• Resource & Project Plan
• Governance Structure,
Communications Plan, RACI
• Requirements Matrix
• Data Migration Strategy
• Test Strategy
• Training Strategy
Month 6
$335,000.00
3 Implement
• Future State Business
Processes
• Training Manuals
• Test Cases / Scripts / Data set
• Unit Testing
• UAT Responsibilities Matrix
Month 11
$670,000.00
Exhibit B - Page 1 of 2
Invoice
Milestone
Phases
(Milestones)
Deliverables Estimated
Invoice Date Invoice Amount
4 Test/Go
Live
• UAT / Parellel Test Execution
• Configuration &
Environment Management
Approach
• Compliance for IT 'Controls
• Cutover and Hypercare Plan
Month 13
$360,000.00
5 Support
• Issue / Back log
• Hyper-care Status Report Month 15 $60,000.00
Total $1,490,000
III. Time and Materials
To the extent additional services are rendered on a Time and Materials basis, Consultant's compensation shall be based on the hourly rates below.
Level Rates
Partner $400.00
Director $375.00
Manager $250.00
Analyst $187.50
IV. Travel Expenses
A. Travel expenses will be compensated or reimbursed pursuant to Section 4, and are subject to the City's advanced written approval.
B. The City is not required to reimburse travel expenses incurred without the City's advanced written approval.
C. Travel expenses shall not exceed $275,000 in the Initial Term, and shall not exceed $75,000 in any Term extension. Travel expenses shall not exceed $350,000 during the full Term of this Agreement.
Exhibit B - Page 2 of 2