Program Overview
Palo Alto CLEAN (Clean Local Energy Accessible Now) is a program to purchase electricity generated by eligible renewable energy resources located in City of Palo Alto Utilities (CPAU) service territory, which coincides with the Palo Alto city boundaries. The power is separately metered and delivered wholesale to CPAU, and it is then used to fulfill CPAU’s renewable goals. Programs like this are also known as "feed-in tariff" programs in reference to the fact that the power is "fed into" the electric grid. None of the power is used to offset the host customer’s load, in contrast to a net metering program.
The program was adopted in March 2012, and was revised in January 2013, February 2014, May 2015, March 2016, February 2017, and May 2017, and March 2024. CPAU is currently offering to purchase the output from renewable energy generation facilities according to the rates in the following table.
Resource Description Contract Term Contract Rate
Solar resources, up to 3 MW total 15, 20, or 25 years 16.5 ¢/kWh Solar resources, greater than 3 MW total 15 years 8.89.5 ¢/kWh 20 years 9.8.9 ¢/kWh
25 years 9.110.2 ¢/kWh
15 years 8.39.4 ¢/kWh
20 years 9.8.4 ¢/kWhNon-solar resources
25 years 8.510.1 ¢/kWh
As shown in the table, there is no total program cap on the capacity participating in the program; there is only a cap on the solar capacity that can receive the 16.5 ¢/kWh contract rate.
CPAU staff will review and re-evaluate the program status, terms, and contract rates with the Palo Alto City Council and Utilities Advisory Commission on an approximately annualon a regular basis.
Summary of Program Rules
➢CPAU will sign power purchase agreements (PPAs) for the output of eligible renewable energy generation facilities.
➢There is no total program capacity limit.
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➢Each PPA will entitle CPAU to the entire output of the generating facility, including all energy, renewable energy credits (RECs), and capacity attributes, if any.
➢The energy from the generating facility must be delivered to CPAU. No part of the energy may be used to serve the customer load on the host site or any other customer load.
➢Generating facilities must be located in the CPAU service territory (which corresponds to the Palo Alto city limits).
➢Generating facilities required by the California Independent System Operator (CAISO) to participate in ISO markets (typically those facilities larger than 1 MW) are subject to additional scheduling and forecasting requirements. ➢There are no limitations on how many generating facilities any single developer or customer may develop.
➢Developers are responsible for obtaining CEC Certification. RECs from the project will be created and tracked in the Western Renewable Energy Generation Information System (WREGIS). CPAU will register each generator under the CPAU WREGIS account and will be responsible for uploading meter data.
➢Project developers may not seek other CPAU ratepayer‐-funded rebates for the generating facility. Any facility that has already received a rebate is not eligible for the program.
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Timeline of a Palo Alto CLEAN Project
The chart below shows how you can expect your Palo Alto CLEAN project to progress:
Site Identification Identify a site for your project.
Site Control Obtain site control for the entire term of the PPA.
Preliminary Design Develop a preliminary design for the project.
Application Submittal Submit an application. Applications are accepted in the order received. Pay reservation deposit within ten days.
Permit Submittal Prepare your project for Building Permit and Interconnection Submittal. Your permit application will be accepted at the City’s Development Center and
routed to our Electric Engineering Division for
interconnection review.
Permit Review The Development Center and Electric Engineering Division will return initial comments. At this time, if the interconnection will require no significant review or
costs, the Electric Engineering Division will send an
interconnection agreement for your signature. If
additional interconnection review is required, an
Advance Engineering Fee may be required.
Interconnection Agreement Upon receipt of the Interconnection Agreement you will be required to submit a deposit for any interconnection costs. At this time you may terminate your PPA instead of submitting the deposit and proceeding with
interconnection. If you exercise this option your full reservation deposit will be returned, but not any permit review fees.
Project Construction Following Building Permit issuance and signature of the Interconnection Agreement the applicant can proceed
with project construction. At some point prior to
completing construction CPAU recommends you apply
for pre-certification of the project with the California Energy Commission (CEC) to ensure the entire output of
the project is certified as eligible to fulfill Renewable Portfolio Standard (RPS) requirements starting on the
Commercial Operation Date. Uncertified energy is not
eligible for the full contract price. CPAU will commence registration of the project with WREGIS during this time.
Commercial Operation Upon final building inspection CPAU will send a letter memorializing the commercial operation date. At this
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point CPAU will return your total reservation deposit or any smaller portion of the deposit you are eligible to
receive. CPAU will begin sending payments for energy
produced, but the payments will be made at the pre-
certification rate until the CEC certifies the project as eligible to fulfill RPS requirements.
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Development of Palo Alto CLEAN Projects
1.0 Site Identification and Control
1.1 Types of Projects Accepted
All projects must be eligible renewable energy resources. There are no limitations on the type of solar technology used to receive the contract price for solar resources. The eligible renewable energy generating facility may be located anywhere in Palo Alto city limits so long as it complies with all City codes and generator interconnection requirements. Ground mounted, rooftop mounted, or carport solar projects are acceptable, but CPAU recommends you investigate the codes and requirements applicable to your site prior to submitting an application.
1.2 Proof of Site Control
Evidence of site control for the entire term of the contract is required in order to submit an application. CPAU requires documentation showing ownership of, a leasehold interest in, or a right to develop property upon which the Generating Facility will be located for the entire term of the contract being requested, or an option to acquire such ownership, leasehold interest, or right to develop.
2.0 Application Process
2.1 Submittal Process
Applications will only be accepted by e-mail, and must be sent to [email protected]. Applications will be considered in the order received.
2.2 Where and When to Submit
The application is considered “submitted” on the date and time CPAU has received all required documents in Section 2.3, below, with the exception of the reservation deposit, which must be paid within ten business days following application submittal. See Section 2.4, below, for instructions on how to submit a reservation deposit. If the deposit is not received by the end of the tenth business day, the application will be rejected. Please note that the maximum attachment size accepted by the City’s e-mail system is 20 MB. To ensure your application is accepted, we recommend sending attachments no larger than 10 MB. If it is necessary to send multiple e-mails to send all of the application materials, please note that fact in your first e-mail. The time and date of the first e-mail will be considered the time and date your application was submitted so long as all application materials are received within two hours of that e-mail.
CPAU will notify applicants of their application’s status by e-mail within five business days, and will mail a copy of the executed PPA within ten business days of receipt of the reservation deposit (see Section 2.4, below).
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2.3 Submittal Requirements
All of the following items are required before an application will be considered “submitted,” with the exception of the reservation deposit, which must be paid within ten business days of the submittal date of the application:
Applicant, system owner, and site owner contact information. Description of the generating system
Preliminary single-line diagram
Preliminary site diagram showing the project site and layout Two signed copies of the Palo Alto CLEAN standard Power Purchase Agreement
Proof of site control (see 1.2, above)
Two signed copies of the WREGIS Assignment of Registration Rights Agreement (see 4.3, below)
Federal Internal Revenue Service Form W-9
Reservation deposit (see 2.4, below)
2.4 Reservation Deposit
The reservation deposit must be paid within ten business days of application submittal.
The preferred method for submitting a reservation deposit is a certificate of deposit payable to the City of Palo Alto, but submitting a payment by check or wire transfer is also acceptable.
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Check: Checks should be made out to the City of Palo Alto and may be submitted by mail to:
City of Palo Alto, Attn: PA CLEAN
Utilities RMD, 3rd Floor
250 Hamilton Ave
Palo Alto, CA 94301
or in person at the Revenue Collections Desk in the lobby of the Civic Center at 250 Hamilton Ave, Palo Alto, CA during normal business hours. Wire Transfer: To submit by wire transfer, send notification of the payment to both [email protected] and
[email protected]. The City’s wire transfer information is as follows:
Bank Name: Wells Fargo Bank, N.A.
Bank Routing (RTN/ABA) Number: 121 000 248
Account Number: 412 107 6145
Beneficiary Account Name: City of Palo Alto
Type of Account: Checking
Bank Address, City, State:
420 Montgomery Street, San Francisco, CA 94104
Federal Tax ID #: 94 6000 389
For International Transfer Only:
International SWIFT BIC WFBIUS6S
The deposit will be returned:
If, for whatever reason, CPAU is unable to accept the application. Upon early termination of the PPA by the applicant prior to Commercial Operation Date, subject to the rules regarding such early termination in Section 7.0 of the PPA.
Upon the commercial operation date of the project, subject to the rules regarding timely completion of the project in Section 7.0 of the PPA.
2.5 Determining Priority
Applications are accepted in the order received based on the date and time stamp of the e-mailed application received by the City at [email protected]. In the event multiple applications are received simultaneously, all will be assigned an application number and precedence will be established by the use of the random number generator at random.org, or another publicly verifiable random number generator in the event random.org is not available.
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For the purpose of determining whether applications were received simultaneously, applications will be considered received based on the date and time stamp on the e-mail.
If multiple copies of the same application are received, the time stamp on the first e- mail received will be used. The time stamp on the City’s e-mail system shows the hour, minute, and second the e-mail was received.
3.0 Permitting
3.1 Time to Complete Project
Applicants have one year from the execution date of the PPA to achieve Commercial Operation for the proposed project., or three years from the PPA execution date if the project site is a new residential construction development that satisfies the basic affordable housing requirement for residential ownership projects under Palo Alto Municipal Code section 16.65.030. If Commercial Operation is achieved after that time, the amount of the Reservation Deposit returned is reduced for each full week the project is delayed (see Section 5.1 and Section 7.0 of the PPA). If Commercial Operation has not been achieved by ten weeks after the applicable deadline to complete the projectone year plus ten weeks after the execution date of the PPA, CPAU retains the option to terminate the PPA.
3.2 Permit Submittal
Applicants apply for a building permit and interconnection agreement at the City’s Development Center. The Building Division manages the routing of applications for review by all necessary departments. Consult the City’s Building Division with questions about building permit requirements and the project review process. The Division maintains pre-submittal and inspection checklists that detail the City’s code requirements. Visit the City’s website
(http://www.cityofpaloalto.org/gov/depts/ds/default.asp) for the most recent versions of these checklists.
The City’s Planning Division typically does not review rooftop solar projects, but if a project will involve landscape changes or carport or ground mounted solar systems, the applicant should consult the Planning Division to understand the code requirements applicable to the proposed project site.
3.3 Interconnection Review
Upon receipt of a project application routed from the City’s Building Division, the Electric Engineering Division will review the project to determine whether it qualifies for simplified review or whether supplemental review or an interconnection study is required. If the project qualifies for simplified review the Electric Engineering Division will send the applicant an Interconnection Agreement for signature.
If the project does not qualify, the applicant must pay an Advance Engineering Fee for additional evaluation work. Once the additional review is complete the Electric Item 7
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Engineering Division will send the applicant an Interconnection Agreement with an estimate of any additional interconnection costs. Upon receiving the interconnection agreement the applicant may either 1) execute and return the interconnection agreement along with payment for any additional estimated interconnection costs, or 2) notify CPAU in writing that the applicant is terminating the agreement. If this notification is received within 30 calendar days of the day CPAU notifies the applicant of the interconnection costs, the reservation deposit will be returned in full per Section 7.0 of the PPA. No portion of the building permit fees or Advance Engineering Fees will be returned.
See Utility Rule and Regulation 27 (Generator Interconnection) for more detail on the interconnection process.
4.0 Construction
4.1 Building Inspection
Consult the City’s Building Division with questions about the building inspection process.
The Division maintains inspection checklists that detail the City’s code requirements. If there are any interconnection facilities to be constructed CPAU will build those facilities during the construction process. Once construction is completed and actual costs are known, CPAU will issue a final invoice for the interconnection facilities. CPAU may require the applicant to make an additional payment to the extent actual costs differ from the estimated costs.
4.2 CEC Pre-Certification
CPAU recommends that the applicant apply for pre-certification of the project from the California Energy Commission (CEC) at some point prior to Commercial Operation. Once the generating facility is completed the applicant must apply for CEC certification (see Section 5.2, below), and pre-certification ensures that certification will begin on the Commercial Operation Date, meaning that all energy output will be certified as eligible to fulfill Renewable Portfolio Standard (RPS) requirements. Per Section 2.4 of the PPA, CPAU will pay for any energy not certified by the CEC at the “Pre-Certification Price” rather than the contract price. See form CEC-RPS-1 published by the CEC for instructions on how to apply.
4.3 WREGIS Registration
During the construction process CPAU will begin registration of the project in WREGIS (the Western Renewable Energy Generation Information System). The system owner is required to assign to CPAU the right to register the project in WREGIS when submitting an application to the Palo Alto CLEAN program. This will enable CPAU to receive Renewable Energy Credits (RECs) from the system directly in its WREGIS account rather than having to execute a transfer of RECs each month. CPAU will be responsible for uploading the meter data to WREGIS each month to enable creation of the RECs.
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5.0 Commercial Operation
5.1 Meter Set and Commercial Operation Date
The Commercial Operation Date for the generator is the date of the final building inspection by the City’s Building Division. Prior to that CPAU’s Electric Meter Shop will set a revenue meter that will be used for billing. Following the final inspection CPAU will send the applicant a letter memorializing the Commercial Operation Date, and the applicant must return a signed copy to CPAU. This letter is required before CPAU can complete WREGIS registration (see Section 4.3 above). WREGIS registration is a prerequisite for CEC Certification (see Section 5.2 below). At this time CPAU will return the entire reservation deposit or any portion of that deposit that the applicant is entitled to under Section 7.0 of the PPA.
5.2 CEC Certification
Within six months following the Commercial Operation Date the applicant is required to have the system certified by the California Energy Commission as eligible to fulfill Renewable Portfolio Standard (RPS) requirements. CPAU will pay for the output of the system at the pre-certification price until this certification is granted (see Section 2.4 of the PPA).
Typically CEC Certification is retroactive to the Commercial Operation Date if 1) the applicant has obtained CEC Pre-Certification for the project (see Section 4.2 above) or 2) the applicant has submitted an application for CEC Certification prior to the commercial operation date. If CPAU receives energy prior to certification and pays for it at the Pre- Certification Price, and that energy is later certified by the CEC as eligible to fulfill RPS requirements, CPAU will issue a true-up equal to the difference between the Pre- Certification Price and the Contract Price upon CEC certification.
See also Sections 2.4 and 3.1 of the PPA, as well as form CEC-RPS-1 published by the CEC.
5.3 Metering and Payment
Payment for the project output will be made monthly by check based on a City-provided revenue meter. The applicant will be responsible for the cost associated with the meter’s telemetry system.
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Additional Resources
Palo Alto CLEAN program website
https://www.cityofpaloalto.org/Departments/Utilities/Business/Ways-to-Save/CLEAN City of Palo Alto Utilities Electric Engineering and Operations https://www.cityofpaloalto.org/Departments/Utilities/Utilities-Services-Safety/Engineering-and-Operations City of Palo Alto Utilities Rule and Regulation 27 (Generator Interconnection) https://www.cityofpaloalto.org/civicax/filebank/blobdload.aspx?BlobID=28741 City of Palo Alto Utilities Electric Standard Drawings
https://www.cityofpaloalto.org/Departments/Utilities/Utilities-Services-Safety/Engineering-and- Operations/Electric-Service-Requirements
City of Palo Alto Development Services
http://www.cityofpaloalto.org/gov/depts/ds/default.asp
California Energy Commission Renewables Portfolio Standard Handbook and Generator Certification Application Forms
https://www.energy.ca.gov/programs-and-topics/programs/renewables-portfolio-standard/renewables-portfolio- standard-0
Western Renewable Energy Generation Information System (WREGIS) https://www.wecc.org/WREGIS/Pages/Default.aspx
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POWER PURCHASE AGREEMENT
ELIGIBLE RENEWABLE ENERGY RESOURCE
(Palo Alto Clean Local Energy Accessible Now Program)
This Power Purchase Agreement - Eligible Renewable Energy Resource, dated, for convenience, (the “Effective Date”), is entered into by and between the CITY OF PALO ALTO, a California chartered municipal corporation, and ,
a corporation (individually, a “Party” and, collectively, the “Parties”).
RECITALS
1. The Buyer has adopted and implemented its CLEAN Program, which allows an owner of a qualifying electric generation system to sell to the Buyer the power output of a small-scale distributed generation Eligible Renewable Energy Resource, subject to the CLEAN Program’s rules and requirements.
2. The Seller owns or operates and desires to interconnect its Facility in parallel with Buyer’s Distribution System and sell the Energy produced by its Facility, net of Station Service Load, directly to the Buyer in furtherance of the CLEAN Program.
3. The Parties do not intend this Agreement to constitute an agreement by the Buyer to provide retail electrical service to the Seller.
4. The Parties wish to enter into a power purchase agreement for the sale and purchase of the Output of the Facility. The Parties will enter into a separate “Interconnection Agreement” in connection with this Agreement.
NOW THEREFORE, in consideration of the foregoing recitals and the following covenants, terms and conditions, the Parties agree, as follows:
AGREEMENT
1.1 DEFINITIONS
The initially capitalized terms, whenever used in this Agreement, have the meanings set forth below, unless they are otherwise herein defined. The terms “include,” “includes,” and “including,” when used in this Agreement, shall mean, respectively, “include, without limitation,“ “includes, without limitation” and “including, without limitation.”
“Affordable Housing Development” means a new residential construction development that satisfies the basic affordable housing requirement for residential ownership projects under Palo Alto Municipal Code section 16.65.030.
“Agreement” means this Power Purchase Agreement – Eligible Renewable Energy Resource between the Buyer and the Seller.
“Business Day” means any day except a Saturday, Sunday, or a day that the City observes as a regular holiday under Palo Alto Municipal Code section 2.08.100(a). “Buyer” refers to the City of Palo Alto, California, with a principal place of business at 250 Hamilton Avenue, Palo Alto, California 94301.
“Buyer’s Distribution System” means the wires, transformers, and related equipment used by the Buyer to deliver electric power to the Buyer’s retail customers, typically at sub-transmission level voltages or lower. “CAISO” means the California Independent System Operator Corporation, or successor entity. “CAISO Tariff” means the CAISO FERC Electric Tariff, as amended.
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“Capacity” means the ability of a generator at any given time to produce Energy at a specified rate, as measured in megawatts (“MW”) or kilowatts (“kW”), and any reporting rights associated with it. “Capacity Attributes” means any current or future defined characteristic, certificate, tag, credit, or ancillary service attribute, whether general in nature or specific as to the location or any other attribute of the Facility, intended to value any aspect of the Contract Capacity of the Facility to produce Energy or ancillary services, including contributions towards Resource Adequacy (including those requirements defined in Section 40 of the CAISO Tariff) or reserve requirements (if any), and any other reliability or power attributes.
“CEC” means the California Energy Resources Conservation and Development Commission, or successor agency.
“Certificate of RPS Eligibility” means a certificate issued by the CEC as evidence of RPS Certification of the Facility.
“City” means the government of the City of Palo Alto, California. “CLEAN Program” refers to the Palo Alto Clean Local Energy Accessible Now Program, a renewable energy program established by the City by adoption of resolution number , dated , of the Palo Alto City Council, whereby the Buyer will purchase from the Seller the Output of Eligible Renewable Energy Resources that meet specified criteria set forth in the City’s applicable ordinances and resolutions. “Commercial Operation” means the period of operation of the Facility, once the Commercial Operation Date has occurred.
“Commercial Operation Date” means the date specified in the Commercial Operation Date Confirmation Letter, which the Parties execute and exchange in accordance with this Agreement. “Contract Capacity” means the installed electrical Capacity available upon the Commercial Operation Date of the Facility in an amount, as specified in Exhibit “PPA-A.” “Contract Capacity” is measured at the Buyer’s revenue meter at the Delivery Point and is net of any Station Service Loads, any applicable Facility step-up transformer losses, and distribution losses on Buyer’s Distribution System up to the Delivery Point. “Contract Price” means the price paid by the Buyer to the Seller for the Output generated at the Facility and received by the Buyer, as set forth in Exhibit “PPA-A.” “CPUC” means the California Public Utilities Commission, or successor agency. “Delivery Point” means the point of interconnection to Buyer’s Distribution System, where the Buyer accepts title to the Output.
“Delivery Term” has the meaning set forth in Section 14.2 hereof. “Eligible Renewable Energy Resource” means an electric generating facility that is defined and qualified as an “eligible renewable energy resource” under California Public Utilities Code Section 399.12(e) and California Public Resources Code Section 25471, respectively, as amended. “Energy” means electrical energy generated from the Facility and delivered to Buyer’s Distribution System with the voltage and quality required by the Buyer, and measured in megawatt-hours (“MWh”) or kilowatt- hours (“kWh”), as metered at the Delivery Point.
“Facility” means the qualifying renewable energy generation equipment and associated power conditioning and interconnection equipment that deliver the Output to the Buyer at the Delivery Point. “FERC” means the Federal Energy Regulatory Commission, or successor agency.
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“Forced Outage” means an unplanned outage of one or more of the Facility’s components that results in a reduction of the ability of the Facility to produce Capacity. “Force Majeure” means an event or circumstance, which prevents a Party from performing its obligations under this Agreement, and which is not in the reasonable control of, or the result of negligence of, the Party claiming Force Majeure, and which by the exercise of due diligence is unable to overcome or cause to be avoided. “Force Majeure” shall include: (a) An act of nature, riot, insurrection, war, explosion, labor dispute, fire, flood, earthquake, storm, lightning, tidal wave, backwater caused by flood, act of the public enemy, terrorism, or epidemic; (b) Interruption of transmission or generation services as a result of a physical emergency condition (and not congestion-related or economic curtailment) not caused by the fault or negligence of the Party claiming Force Majeure and reasonably relied upon and without a reasonable source of substitution to make or receive deliveries hereunder, civil disturbances, strike, labor disturbances, labor or material shortage, national emergency, restraint by court order or other public authority or governmental agency, actions taken to limit the extent of disturbances on the electrical grid; or (c) Other similar causes beyond the control of the Party affected, which causes such Party could not have avoided by the exercise of due diligence and reasonable care. A Party's financial incapacity, the Seller’s ability to sell the Output at a more favorable price or under more favorable conditions, or the Buyer’s ability to acquire the Output at a more favorable price or under more favorable conditions or other economic reasons shall not constitute an event of Force Majeure. “Force Majeure” does not include a Forced Outage to the extent such event is not caused or exacerbated by an event of Force Majeure, as described above, and does not include the Seller’s inability to obtain financing, permits, or other equipment and instruments necessary to plan for, construct, or operate the Facility.
“Good Utility Practice” means those practices, methods and acts that would be implemented and followed by prudent operators of electric energy generating facilities in the western United States, similar to the Facility, during the relevant time period, which practices, methods and acts, in the exercise of prudent and responsible professional judgment in the light of the facts known at the time the decision was made, could reasonably have been expected to accomplish the desired result consistent with good business practices, reliability, and safety. The Seller acknowledges that its use of Good Utility Practice does not exempt it from performing any of its obligations arising under this Agreement. “Good Utility Practice” includes, at a minimum, those professionally responsible practices, methods and acts described in the preceding paragraph that comply with manufacturers’ warranties, restrictions in this Agreement, the interconnection requirements of Buyer, the requirements of governmental authorities, and WECC and NERC standards. “Good Utility Practice” also includes the taking of reasonable steps to ensure that:
(a) Equipment, materials, resources, and supplies, including spare parts inventories, are available to meet the Facility’s needs;
(b) Sufficient operating personnel are available at all times and are adequately experienced and trained and licensed as necessary to operate the Facility properly and efficiently, and are capable of responding to reasonably foreseeable emergency conditions at the Facility and emergencies whether caused by events on or off the Facility’s site; (c) Preventive, routine, and non-routine maintenance and repairs are performed on a basis that ensures reliable, long-term and safe operation of the Facility, and are performed by knowledgeable, trained, and experienced personnel utilizing proper equipment and tools; (d) Appropriate monitoring and testing are performed to ensure equipment is functioning as designed; and
(e) Equipment is not operated in a reckless manner, in violation of manufacturer’s guidelines or in a manner unsafe to workers, the general public, or the connecting utility’s electric system or contrary to environmental laws, permits or regulations or without regard to defined limitations such as, flood conditions, safety inspection requirements, operating voltage, current, volt ampere reactive (VAR) loading, frequency, rotational speed, polarity, synchronization, and control system limits; and equipment and components are designed and manufactured to meet or exceed the standard of durability that is generally used for electric energy generating facilities operating in the western United States and will function properly over the full range of ambient temperature and weather conditions reasonably expected to occur at the Facility site and under both normal and emergency conditions.
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“Green Attributes” refers to the definition set forth in the Standard Terms and Conditions, Appendix A-2, as amended, Decision D.07-02-011, as modified by D.07-05-057, of the CPUC, which incorporates the definition of “Environmental Attributes” set forth in the Standard Terms and Conditions, Appendix A-1, as amended, D. 04-06-014. “Green Attributes” includes any and all credits, benefits, emissions reductions, environmental air quality credits, offsets, and allowances, howsoever entitled, attributable to the generation from the Facility, and its displacement of conventional energy generation, whether existing now or arising in the future. “Green Attributes” includes RECs, as well as (1) any avoided emissions of pollutants to the air, soil or water, such as sulfur oxides (“SOx”), nitrogen oxides (“NOx”), carbon monoxide (“CO”) and other pollutants; (2) any avoided emissions of carbon dioxide (“CO2”), methane (“CH4”), nitrous oxide, hydrofluorocarbons, perfluorocarbons, sulfur hexafluoride, and other greenhouse gases (“GHGs”) that have been determined by the United Nations Intergovernmental Panel on Climate Change, or otherwise by law, to contribute to the actual or potential threat of altering the Earth’s climate by trapping heat in the atmosphere; and (3) the reporting rights to these avoided emissions such as Green Tag Reporting Rights and RECs. “Green Tag Reporting Rights” are the right of a Green Tag Purchaser to report the ownership of accumulated Green Tags in compliance with federal or state law, if applicable, and to a federal or state agency or any other party at the Green Tag Purchaser’s discretion, and include those Green Tag Reporting Rights accruing under Section 1605(b) of the Energy Policy Act of 1992 and any present or future federal, state, or local law, regulation or bill, and international or foreign emissions trading program. Green Tags are accumulated on a kWh basis and one Green Tag represents the Green Attributes associated with one (1) MWh of Energy. “Green Attributes” do not include (i) any Energy, Capacity, reliability, or other power attributes of the Facility, (ii) production or investment tax credits associated with the construction or operation of the Facility and other financial incentives in the form of credits, grants, reductions, or allowances associated with the Facility that are applicable to a state or federal income taxation obligation, (iii) fuel-related subsidies or “tipping fees” that may be paid to Seller to accept certain fuels, or local subsidies received by the generator for the destruction of particular pre-existing pollutants or the promotion of local environmental benefits, or (iv) emission reduction credits encumbered, used or created by the Facility for compliance with or sale under local, state, or federal operating and/or air quality permits or programs. If the Facility is a biomass or landfill facility and the Seller receives any tradable Green Attributes based on the Facility’s greenhouse gas reduction benefits or other emission offsets attributed to its fuel usage, the Seller shall provide the Buyer with sufficient Green Attributes to ensure that there are zero net emissions associated with the production of electricity from the Facility. “Green Attributes” includes any other environmental credits or benefits recognized in the future and attributable to Energy generated by the Facility during the Term that may not be represented by Green Tag Reporting Rights or RECs, unless otherwise excluded herein. Any Green Attributes provided under this Agreement shall be documented by RECs, or any other representation of the environmental benefits of the Output, the monthly cumulative total of which shall be provided to the Buyer, as specified herein. “Interconnection Agreement” refers to the agreement between the Buyer and the Seller, specific to the interconnection of the Facility to Buyer’s Distribution System. “NERC” means the North American Electric Reliability Corporation, or successor organization. “NCPA” means Northern California Power Agency, a California joint action agency, or successor agency. “Output” means all Capacity associated with Contract Capacity and associated Energy made available from the Facility, as well as any Capacity Attributes, Green Attributes, or other attributes existing now or in the future associated with Contract Capacity and/or associated Energy. “Output” does not include production or investment tax credits associated with the construction or operation of the Facility and other financial incentives in the form of credits, grants, reductions, or allowances associated with the Facility that are applicable to a state or federal income taxation obligation. “Planned Outage” means an outage, scheduled in advance, of one or more of the Facility’s components that results in a reduction of the ability of the Facility to produce Capacity.
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“Pre-Certification Price” means the contract price to be paid for all Energy delivered to the Buyer prior to the RPS Certification Date, as specified in Exhibit “PPA-A”. “Renewable Energy Credit” or “REC” has the meaning set forth in Section 399.12(h)(1) and (2) of the California Public Utilities Code, and includes a certificate of proof that one unit of electricity was generated by an Eligible Renewable Energy Resource. Currently, RECs are used to convey all Green Attributes associated with electricity production by a renewable energy resource. RECs are accumulated on a kWh basis and one REC represents the Green Attributes associated with the generation of 1 MWh (1,000 kWhs) from the Facility. For purposes of this Agreement, the term REC shall be synonymous with the term Green Tag, green ticket, bundled or unbundled renewable energy credit, tradable renewable energy certificates, or any other term used to describe the documentation that evidences the renewable and Green Attributes associated with electricity production by an Eligible Renewable Energy Resource. “Renewables Portfolio Standard” or “RPS” means the standard adopted by the State of California pursuant to Senate Bill 2 1st Extraordinary Session (SBX1 2, Chapter 1, Statutes 2011-12), and California Public Utilities Code Sections 399.11through 399.31, inclusive, as may be amended, setting minimum renewable energy targets for local publicly owned electric utilities. “Reservation Deposit” means the monetary deposit submitted by the Seller (or the Facility sponsor on behalf of the Seller) to secure a reservation of the CLEAN Program’s prices. The Reservation Deposit is set forth in Exhibit “PPA-A.”
“Resource Adequacy” means a requirement by a governmental authority or in accordance with its FERC- approved tariff, or a policy approved by a local regulatory authority, that is binding upon either Party and that requires that Party to procure a certain amount of electric generating capacity. “RPS Certification” means certification by the CEC that the Facility qualifies as an Eligible Renewable Energy Resource for RPS purposes, and that all Energy produced by the Facility qualifies as generation from an Eligible Renewable Energy Resource, as evidenced by a Certificate of RPS Eligibility. “RPS Certification Date” means the date on which the RPS Certification begins, as specified in the Certificate of RPS Eligibility.
“Seller”means with a principal place of business at
, , .
“Station Service Load” means the electrical loads associated with the operation and maintenance of the Facility, which may at times be supplied from the Facility’s Energy. “Term” has the meaning set forth in Section 14.1 hereof. “WECC” means the Western Electricity Coordinating Council, the regional entity responsible for coordinating and promoting regional bulk electric system reliability in the Western Canada and the United States, or any successor organization.
2.0 SELLER’S GENERATING FACILITY, PURCHASE PRICE AND PAYMENT
2.1 Facility. This Agreement governs the Buyer’s purchase of the Output from the Facility, as described in Exhibit “PPA-A.” The Seller shall not modify the Facility to increase or decrease the Contract Capacity after the Commercial Operation Date.
2.2 Products Purchased. During the Delivery Term, the Seller shall sell and deliver, or cause to be delivered, and the Buyer shall purchase and receive, or cause to be received, the Output from the Facility. The Seller shall not have the right to procure the Output from sources other than the Facility for sale or delivery to the Buyer under this Agreement or to substitute the Output.
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2.3 Delivery Term. The Delivery Term shall commence on the Commercial Operation Date under this Agreement, and shall continue for an uninterrupted period of [fifteen (15), twenty (20), or twenty-five (25) years]. This period will commence on the first day of the calendar month immediately following the Commercial Operation Date. As evidence of the Commercial Operation Date, the Parties shall execute and exchange the “Commercial Operation Date Confirmation Letter,” attached hereto as Exhibit “PPA- B.” The Commercial Operation Date shall be the date on which the Parties acknowledge, in writing, that the Facility starts operating and is otherwise in compliance with applicable interconnection and system protection requirements, including the final approvals by the City’s building department official.
2.4 Payment for Products Purchased.
2.4.1 Deliveries Prior to RPS Certification Date. Once the Facility has achieved Commercial Operation, if the CEC has not issued a Certificate of RPS Eligibility for the Facility or the Facility has not been registered with the appropriate entity for the tracking of Green Attributes, the Buyer will pay the Seller for the Output by multiplying the Pre-Certification Price by the quantity of Energy.
2.4.2 Deliveries After RPS Certification Date. Once the Facility has achieved Commercial Operation, the CEC has issued a Certificate of RPS Eligibility for the Facility, and the Facility has been registered with the appropriate entity for the tracking of Green Attributes, the Buyer shall pay the Seller for all Output on or after the RPS Certification Date by multiplying the Contract Price by the quantity of Energy.
2.4.3 True-up Upon Issuance of Certificate of RPS Eligibility. Once the Facility has achieved Commercial Operation, the CEC has issued a Certificate of RPS Eligibility for the Facility, and the Facility has been registered with the appropriate entity for the tracking of Green Attributes, the Buyer will pay the Seller an amount equal to the difference between the Contract Price and the Pre-Certification Price for the Output (a) that was delivered on or after the RPS Certification Date and (b) for which the Seller has already received payment at the Pre- Certification Energy Price.
2.4.4 Energy in Excess of Contract Capacity. The Seller shall not receive payment for any Energy or Green Attributes delivered in any hour to the Buyer in excess of the following amount of energy (in kilowatt-hours): 110% of the Contract Capacity (in kilowatts) multiplied by one hour. Any payment in excess of this amount shall be refunded to the Buyer, on demand.
2.5 Billing. The Buyer shall pay the Seller by check or electronic funds transfer, on a monthly basis, within thirty (30) days of the meter reading date.
2.6 Title and Risk of Loss. Title to and risk of loss related to the Output shall be transferred from the Seller to the Buyer at the Delivery Point. The Seller warrants that it will deliver to the Buyer the Output free and clear of all liens, security interests, claims, encumbrances or any interest therein or thereto by any person, arising prior to the Delivery Point.
2.7 No Additional Incentives. The Seller warrants that it has not received any other incentives funded by the Buyer’s ratepayers and it further agrees that, during the Term, it shall not seek additional compensation or other benefits from the Buyer pursuant to the following programs of the Buyer:
(a) Photovoltaic (PV) Partners Program; (b) Power from Local Ultra-Clean Generation Incentive (PLUG- In) Program; or (c) other similar programs that are or may be funded by the Buyer’s ratepayers.
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3.0 RPS CERTIFICATION; GREEN ATTRIBUTES
3.1 CEC Certification. The Seller, at its own cost and expense, shall obtain the RPS Certification within six (6) months of the Commercial Operation Date. The Seller shall maintain the RPS Certification at all times during the Delivery Term. The foregoing provision notwithstanding, the Seller shall not be in breach of this Agreement and the Buyer shall not have the right to terminate this Agreement, if the Seller’s failure to obtain or maintain the RPS Certification is due to a change in California law, occurring after the Commercial Operation Date, so long as the Seller has used commercially reasonable efforts to obtain and maintain the RPS Certification and the Seller’s actions or omissions did not contribute to its inability to obtain and maintain the RPS Certification.
3.2 Obligation to Deliver Green Attributes. The Seller shall sell and deliver to the Buyer, and the Buyer shall buy and receive from the Seller, all right, title, and interest in and to Green Attributes associated with Energy, produced by the Facility and delivered to the Buyer at the Delivery Point, whether now existing or that hereafter come into existence during the Term, except as otherwise excluded herein; provided, the Buyer shall not be obligated to purchase and pay the Seller for any Green Attributes associated with any amount of the Output, that is generated by any fuel which is not renewable and which cannot be counted for the purpose of the production of Green Attributes. The Seller agrees to sell and make all such Green Attributes available to the Buyer to the fullest extent allowed by applicable law, in accordance with the terms and conditions of this Agreement. The Seller warrants that the Green Attributes provided under this Agreement to the Buyer shall be free and clear of all liens, security interests, claims and encumbrances.
3.3 Conveyance of Green Attributes. The Seller shall provide Green Attributes associated with the Facility, which shall be documented and conveyed to the Buyer in accordance with the procedure described in Exhibit “PPA-D.”
3.4 Additional Evidence of Green Attributes Conveyance. At the Buyer’s request, the Seller shall provide additional reasonable evidence to the Buyer or to third parties of the Buyer’s right, title, and interest in the Green Attributes and any other information with respect to Green Attributes, as may be requested by the Buyer.
3.5 Modification of Green Attributes Conveyance Procedure. The Buyer may unilaterally modify Exhibit “PPA-D” in order to reflect changes necessary in the Green Attributes conveyance procedures, so that the Buyer may be able to receive and report the Green Attributes, purchased under this Agreement, as belonging to the Buyer.
3.6 Reporting of Ownership of Green Attributes. The Seller shall not report to any person or entity that the Green Attributes sold and conveyed to the Buyer belong to any person other than the Buyer.
The Buyer may report under any applicable program that Green Attributes purchased by the Buyer hereunder belong to it.
3.7 Greenhouse Gas Emissions. The Seller shall comply with any laws and/or regulations regarding the need to offset emissions of GHGs by delivering to the Buyer the Energy from the Facility with a net zero GHG impact.
4.0 CONVEYANCE OF CAPACITY ATTRIBUTES
4.1 Conveyance of Resource Adequacy Capacity. The Seller shall not report to any person or entity that the Resource Adequacy Capacity, as defined in the CAISO Tariff) associated with the Facility, if any, belongs to a person other than the Buyer, which may report that Resource Adequacy Capacity purchased hereunder belongs to it to fulfill the Resource Adequacy requirements, as defined in Section 40 of the CAISO Tariff, as amended, or any successor program. The Seller shall take those actions described in Section 6.0 hereof, as applicable, to secure recognition of Resource Adequacy Capacity by the CAISO.
4.2 Conveyance of Other Capacity Attributes. In addition to the obligations imposed on the Item 7
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Seller under Section 4.1, the Seller will undertake any and all actions reasonably needed to enable the Buyer to effect the recognition and transfer of any Capacity Attributes in addition Resource Adequacy, to the extent that such Capacity Attributes exist now or will exist in the future; provided, if such actions require any actions beyond the giving of notice by the Seller, then the Buyer shall reimburse all out-of- pocket costs and charges of such actions.
4.3 Reporting of Ownership of Capacity Attributes. The Seller shall not report to any person or entity that the Capacity Attributes sold and conveyed to the Buyer belong to any person other than the Buyer. The Buyer may report under any such program that such Capacity Attributes purchased hereunder belong to it.
5.0 METERING AND OPERATIONS
5.1 Timing of Outages. The Seller may not schedule or take any Planned Outage from 12:00 p.m. through 7:00 p.m. Pacific Time during the months of June through October.
5.2 Outage Reporting.
5.2.1 Buyer Request. The Seller is not required to report any Planned Outage or Forced Outage, unless the Buyer first submits a written request to the Seller to commence Outage reporting. Upon receipt of such a request, the Seller shall report all subsequent Planned Outages and the Forced Outages according to the procedures described in subsections 5.2.2 and 5.2.3, and shall continue such reporting until (a) the termination of this Agreement for any reason, or (b) the Buyer subsequently provides written notice to the Seller that the Seller may cease such reporting in the future.
5.2.2 Planned Outage Notifications. The Seller shall notify the Buyer at least 72 hours in advance of any Planned Outage that would result in a reduction in the effective Output of the Facility during the period over which the Planned Outage is scheduled. Notification shall be provided by e-mail to the e-mail address (or addresses) set forth in Exhibit “PPA-F.”
5.2.3 Forced Outage Notifications. Within 24 hours of the occurrence of a Forced Outage of the Facility that impacts the ability of the Facility to produce Energy, the Seller shall notify the Buyer of the Forced Outage, including the Capacity of the Facility that is impacted, and the expected duration of the Forced Outage. Within 24 hours of the return of the Facility to service following the Forced Outage, the Seller shall notify the Buyer of the return-to-service details.
Notification shall be made by e-mail to the address (or addresses) set forth in Exhibit “PPA-F.”
5.3 Metering. The Buyer shall furnish and install one or more standard watt-hour meters to read Energy generated by the Facility, and it will charge a meter fee to the Seller to cover the costs associated with the meter’s purchase and installation. As requested, the Seller shall provide and install a meter socket in accordance with the Buyer’s metering standards. The Buyer reserves the right to install additional metering equipment at its sole cost and expense.
6.0 PARTICIPATING GENERATORS
6.1 Applicability. This Section 6.0 shall apply if the Facility meets the definition of a “Participating Generator,” as may be defined by the CAISO Tariff. This Section 6.0 shall not apply if the definition applies to the Facility only upon the election by the Seller. For the purposes of this Section 6.0, all special terms not otherwise defined in Section 1.0 are defined in the CAISO Tariff.
6.2 Participating Generator Agreement. The Buyer will notify the CAISO of the Seller’s interconnection to Buyer’s Distribution System. If the CAISO requires it, the Seller, at its own expense, shall negotiate and enter in to two contracts, a “Participating Generator Agreement” and a “Meter Services Agreement for CAISO Metered Entities,” with the CAISO.
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6.3 Scheduling Coordination. If the CAISO requires the Seller to enter in to a Participating Generator Agreement, then the Seller shall designate NCPA as the Buyer’s scheduling coordinator. The Buyer, acting in its sole discretion, may replace NCPA as the scheduling coordinator for the Facility. If NCPA ceases to be the scheduling coordinator for the Facility and the Buyer has not, upon fourteen (14) days’ prior written notice of inquiry from the Seller, appointed a replacement scheduling coordinator, then the Seller shall have the right to appoint a replacement scheduling coordinator on the Buyer’s behalf.
Thereafter, the Buyer shall enter into all reasonable and appropriate agreements with such replacement scheduling coordinator at its own costs.
6.4 Scheduling Procedure. The Buyer may require the Seller to provide the Buyer with Energy forecasts on a periodic basis, as may be necessary for the Buyer to account for expected Facility generation in its daily power scheduling process. The requirements are set forth in Exhibit “PPA-C.”
6.5 Modification of Scheduling and Outage Notification Procedure. The Buyer may unilaterally modify Exhibit “PPA-C” to reflect changes necessary in the scheduling and Outage notification procedures. The Buyer shall give the Seller reasonable notice of any such changes.
6.6 Provision of Other Equipment. If the Seller is required to enter into a Participating Generator Agreement with the CAISO, then the Seller, at its own cost and expense, shall provide and maintain data transmission-grade phone line and telecommunications equipment at the meter location that complies with applicable requirements of the CAISO, the Buyer, and NCPA. Any meter installed by the Seller shall comply at all times with the CAISO’s metering requirements. If the Seller fails to provide or maintain any such required equipment or data connection, then the Buyer shall acquire, install and maintain the same at the Seller’s sole cost and expense.
6.7 Designation as Resource Adequacy Resource. The Buyer may submit a written request to the Seller to obtain the CAISO’s designation of the Facility as a Resource Adequacy Resource. Upon receipt of such request, the Seller shall provide such information and undertake such steps as may be required by the CAISO in order to complete such an assessment. If the Buyer makes such a request, then the Buyer shall be responsible for the following: (1) any costs charged to the Seller by the CAISO as a condition of applying for or receiving designation as a Resource Adequacy Resource, including any deposits required during the study process or the cost of any related studies or deliverability assessments performed by the CAISO; (2) the capital, installation, and maintenance costs of any additional equipment required by the CAISO as a condition of receiving designation as a Resource Adequacy Resource; (3) the costs of any Network Upgrades, as defined in the CAISO Tariff, as may be required by the CAISO, provided, the Buyer shall receive any subsequent repayments from the CAISO or the Participating Transmission Owner related to such upgrades; and (4) any charges or penalties assessed by the CAISO as a consequence of the Facility’s designation as a Resource Adequacy Resource.
6.8 CAISO Charges. The Buyer shall be solely responsible for paying all costs and charges associated with the receipt of Energy under this Agreement, at the Delivery Point, and for the transmission and delivery of Energy from the Delivery Point to any other point downstream of the Delivery Point, including transmission costs and charges, competition transition charges, applicable control area service charges, transmission congestion charges, inadvertent energy flows, any other CAISO charges related to the transmission of such Energy by the CAISO and any charge assessed or collected in the future pursuant to any utility tariff or rate schedule, however defined, for transmission or transmission-related service rendered by or for any transmission-owning or operating entity. The Seller will undertake any and all actions reasonably needed to allow the Buyer to comply with any obligations, and minimize any potential liability, under the CAISO tariff. If and to the extent that the Seller fails to comply with the notice provision in Exhibit “PPA-C,” concerning Outages, or with its obligations as outlined in the previous sentence, the Seller shall be wholly responsible for all imbalances, deviations, or any other CAISO charges or penalties associated with such Outage or other CAISO Tariff obligation.
6.9 Inclusion in Metered Subsystem. At the option of the Buyer, the Facility may be included within NCPA’s metered sub-system in connection with the scheduling of power over the CAISO grid and related functions; provided, however, that such inclusion shall have no adverse effect on the Facility’s operations or the Seller (or any such effect shall be fully mitigated by the Buyer). The Seller will undertake any and all actions reasonably needed to allow the Buyer to comply with any obligations, and Item 7
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minimize any potential liability, under the CAISO Tariff; provided, that if such actions require any actions beyond the giving of notice to be provided by the Buyer, then the Buyer shall reimburse the Seller for all out-of-pocket costs and charges of such actions.
7.0 COMMERCIAL OPERATION DATE; REFUND OF RESERVATION DEPOSIT
7.1 Commercial Operation Date. The Facility shall achieve Commercial Operation by the Commercial Operation Date deadline (the “Deadline”), which is one (1) year from the Effective Date., or, for Affordable Housing Developments, three (3) years from the Effective Date.
7.2 Reservation Deposit. The Buyer acknowledges that, as of the Effective Date or other date established by the Buyer, the Seller has provided the Reservation Deposit to the Buyer.
7.2.1 If the Commercial Operation Date occurs on or prior to the Deadline, the Buyer shall refund to the Seller the Reservation Deposit without interest.
7.2.2 If the Commercial Operation Date commences within seventy (70) days of the Deadline, the Seller, as liquidated damages and not as a penalty, shall relinquish its claim to a ten percent (10%) portion of the amount of the Reservation Deposit for every full week transpiring between the Deadline and the Commercial Operation Date, but the total amount to be relinquished to the Buyer shall not exceed 100% of the Reservation Deposit.
7.2.3 If the Facility has not achieved Commercial Operation within seventy (70) days of the Deadline, then the Buyer may terminate this Agreement without liability of either Party to the other (other than as set forth in Section 7.2.2) by giving written notice of termination to the Seller.
7.2.4 If the Seller gives notice of termination to terminate the Agreement before Commercial Operation occurs, then the Buyer shall refund a percentage of the Reservation Deposit equal to the following: the percentage to be refunded will equal A/B, where A equals the number of days between the date of the Seller’s notice of termination, received by the Buyer, and the Deadline, and B equals the number of days between the Effective Date and the Deadline.
7.3 Return of Reservation Deposit. The Buyer shall return to the Seller the Reservation Deposit, without interest, in the event that (a) the Buyer furnishes written notice of the costs of interconnection (defined in the Interconnection Agreement to include the costs related to the Interconnection Facilities and Distribution Upgrades) to the Seller and (b) within thirty (30) days of receipt of the notice regarding costs of interconnection, the Seller provides the Buyer with written notice that the Seller does not intend to sign the Interconnection Agreement and does intend to proceed with the project.
8.0 REPRESENTATION AND WARRANTIES; COVENANTS
8.1 Representations and Warranties. On the Effective Date, each Party represents and warrants to the other Party that:
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8.1.1 It is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation;
8.1.2 The execution, delivery and performance of this Agreement is within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any law, rule, regulation, order or the like applicable to it;
8.1.3 This Agreement and each other document executed and delivered in accordance with this Agreement constitutes its legally valid and binding obligation enforceable against it in accordance with its terms;
8.1.4 It is not bankrupt and there are no proceedings pending or being contemplated by it or, to its knowledge, threatened against it which would result in it being or becoming bankrupt;
8.1.5 There is not pending or, to its knowledge, threatened against it or any of its affiliates, if any, any legal proceedings that could materially adversely affect its ability to perform its obligations under this Agreement; and
8.1.6 It is acting for its own account, has made its own independent decision to enter into this Agreement and as to whether this Agreement is appropriate or proper for it based upon its own judgment, is not relying upon the advice or recommendations of the other Party in so doing, and is capable of assessing the merits of, and understands and accepts, the terms, conditions and risks of this Agreement.
8.2 General Covenants. Each Party covenants that, during the Term:
8.2.1 It shall continue to be duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation;
8.2.2. It shall maintain (or obtain from time to time as required, including through renewal, as applicable) all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
8.2.3 It shall perform its obligations under this Agreement in a manner that does not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any law, rule, regulation, order or the like applicable to it.
8.3 Covenant by Seller. The Seller covenants that, during the Term:
8.3.1 If the Eligible Renewal Energy Resource or the Facility is considered an ‘eligible qualifying facility’ under applicable law and has a net power production capacity of greater than one (1) megawatt, then the Seller covenants and agrees that, within thirty (30) days of the Effective Date or longer period allowed by law, it will complete and file Form No. 556 or other similar form with FERC as the same may be required by law.”
9.0 GENERAL CONDITIONS
9.1 Facility Care and Interconnection. During the Delivery Term, the Seller shall execute and maintain an “Interconnection Agreement” with the Buyer, whereby the Seller shall pay and be responsible for designing, installing, operating, and maintaining the Facility in accordance with all applicable laws and regulations and shall comply with all applicable Buyer, WECC, FERC, and NERC requirements, including applicable interconnection and metering requirements. The Seller shall also comply with any modifications, amendments or additions to the applicable tariff and protocols. The Seller also shall arrange and pay independently for any and all necessary costs under the Interconnection Agreement with the Buyer.
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9.2 Standard of Care. The Seller shall: (a) operate and maintain the Facility in a safe manner in accordance with its existing applicable interconnection agreements, manufacturer’s guidelines, warranty requirements, Good Utility Practice, industry norms (including standards of the National Electrical Code, Institute of Electrical and Electronic Engineers, American National Standards Institute, and the Underwriters Laboratories, and in accordance with the requirements of all applicable federal, state and local laws and the National Electric Safety Code, as such laws and code norms may be amended from time to time; (b) obtain any governmental authorizations and permits required for the construction and operation thereof. The Seller shall make any necessary and commercially reasonable repairs with the intent of optimizing the availability of electricity to the Buyer. The Seller shall reimburse the Buyer for any and all losses, damages, claims, penalties, or liability that the Buyer incurs as a result of the Seller’s failure to obtain or maintain any governmental authorizations and permits required for the construction and operation of the Facility throughout the Term.
9.3 Access Rights. The Buyer, its authorized agents, employees and inspectors shall have the right to inspect the Facility on reasonable advance notice during normal business hours and for any purposes reasonably connected with this Agreement or the exercise of any and all rights secured to the Buyer by law, including, without limitation, its ordinances, resolutions, tariffs, utility rate schedules or utilities rules and regulations. The Buyer shall make reasonable efforts to coordinate its emergency activities with the safety and security departments, if any, of the Facility’s operator. The Seller shall keep the Buyer advised of current procedures for communicating with the Facility operator’s safety and security departments.
9.4 Protection of Property. Each Party shall be responsible for protecting its own facilities from possible damage resulting from electrical disturbances or faults caused by the operation, faulty operation, or non-operation of the other Party’s facilities and such other Party shall not be liable for any such damages so caused.
9.5 Insurance. During the Term, the Seller shall obtain and maintain and otherwise comply with the insurance requirements, as set forth in Exhibit “PPA-E.”
9.6 Buyer’s Performance Excuse; Seller Curtailment.
9.6.1 Buyer Performance Excuse. The Buyer shall not be obligated to accept or pay for the Output during Force Majeure that affects the Buyer’s ability to accept Energy.
9.6.2 Seller Curtailment. The Buyer may require the Seller to interrupt or reduce deliveries of Energy: (a) whenever necessary to construct, install, maintain, repair, replace, remove, or investigate any of its equipment or part of the Buyer’s Distribution System or facilities; or (b) if the Buyer determines that curtailment, interruption, or reduction is necessary due to a System Emergency, as defined in the CAISO Tariff, an unplanned outage on Buyer’s Distribution System, Force Majeure, or compliance with Good Utility Practice.
9.7 Notices of Outages. Whenever possible, the Buyer shall give the Seller reasonable notice of the possibility that interruption or reduction of deliveries may be required.
9.8 No Additional Loads. The Seller shall not connect any loads not associated with Station Service Loads at the location of the Facility in a manner that would reduce Energy provided from the Facility to the Buyer hereunder. The Seller shall obtain separate retail electric service under the Buyer’s rate schedules for the service of such additional loads.
10.0 FORCE MAJEURE
10.1 Effect of Force Majeure. A Party shall be excused from its performance under this Agreement to the extent, but only to the extent, that its performance hereunder is prevented by Force Majeure. A Party claiming Force Majeure shall exercise due diligence to overcome or mitigate the effects of Force Majeure; provided, that nothing in this Agreement shall be deemed to obligate the Party affected by Force Majeure (a) to forestall or settle any strike, lock-out or other labor dispute against its will; or (b) for Force Majeure affecting the Seller only, to purchase electric power to cure Force Majeure.
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10.2 Remedial Action. A Party shall not be liable to the other Party if the Party is prevented from performing its obligations hereunder due to Force Majeure. The Party rendered unable to fulfill an obligation by reason of Force Majeure shall take all action necessary to remove such inability with all due speed and diligence. The nonperforming Party shall be prompt and diligent in attempting to remove the cause of its failure to perform, and nothing herein shall be construed as permitting that Party to continue to fail to perform after that cause has been removed. Notwithstanding the foregoing, the existence of Force Majeure shall not excuse any Party from its obligations to make payment of amounts due hereunder.
10.3 Notice of Force Majeure. In the event of any delay or nonperformance resulting from Force Majeure, the Party directly impacted by Force Majeure shall, as soon as practicable under the circumstances, notify the other Party, in writing, of the nature, cause, date of commencement thereof and the anticipated extent of any delay or interruption in performance.
10.4 Termination Due to Force Majeure. If a Party will be prevented from performing its material obligations under this Agreement for an estimated period of twelve (12) consecutive months or longer due to Force Majeure, then the unaffected Party may terminate this Agreement, without liability of either Party to the other (other than any liability set forth in Section 7.2.2 arising prior to such extended Force Majeure), upon thirty (30) Days’ prior written notice at any time during Force Majeure.
11.0 INDEMNITY
11.1 Indemnity by the Seller. The Seller shall indemnify, defend, and hold harmless the Buyer, its elected and appointed officials, directors, officers, employees, agents, and representatives against and from any and all losses, claims, demands, liabilities and expenses, actions or suits, including reasonable costs and attorney’s fees, resulting from, or arising out of or in any way connected with claims by third parties associated with (A) (i) Energy delivered at the Delivery Point; (ii) the Seller’s operation and/or maintenance of the Facility; or (iii) the Seller’s actions or inactions with respect to this Agreement, and (B) any loss, claim, action or suit, for or on account of injury, bodily or otherwise, to, or death of, persons, or for damage to or destruction of property belonging to the Buyer or other third party, excepting only such loss, claim, action or suit as may be caused solely by the willful misconduct or gross negligence of the Buyer, its agents, employees, directors or officers.
11.2 Indemnity by the Buyer. The Buyer shall indemnify, defend, and hold harmless the Seller, its directors, officers, employees, agents, and representatives against and from any and all losses, claims, demands, liabilities and expenses, actions or suits, including reasonable costs and attorney’s fees resulting from, or arising out of or in any way connected with claims by third parties associated with acts of the Buyer, its officers, employees, agents, and representatives, relating to: (A) Energy delivered by the Seller under this Agreement after the Delivery Point, and (B) any loss, claim, action or suit, for or on account of injury, bodily or otherwise, to, or death of, persons, or for damage to or destruction of property belonging to the Seller or other third party, excepting only such loss, claim, action or suit as may be caused solely by the willful misconduct or gross negligence of the Seller, its agents, employees, directors or officers.
12.0 LIMITATION OF DAMAGES
EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT THERE IS NO WARRANTY
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY AND ALL IMPLIED WARRANTIES ARE DISCLAIMED. LIABILITY SHALL BE LIMITED TO DIRECT
ACTUAL DAMAGES ONLY, SUCH DIRECT ACTUAL DAMAGES SHALL BE THE SOLE AND
EXCLUSIVE REMEDY AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED UNLESS EXPRESSLY HEREIN PROVIDED. NEITHER PARTY SHALL BE LIABLE
FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES,
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CONTRACT, UNDER ANY INDEMNITY PROVISION OR OTHERWISE. UNLESS EXPRESSLY HEREIN PROVIDED, AND SUBJECT TO THE PROVISIONS OF SECTION 11 (INDEMNITY), IT IS
THE INTENT OF THE PARTIES THAT THE LIMITATIONS HEREIN IMPOSED ON REMEDIES
AND THE MEASURE OF DAMAGES BE WITHOUT REGARD TO THE CAUSE OR CAUSES
RELATED THERETO, INCLUDING THE NEGLIGENCE OF ANY PARTY, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, OR ACTIVE OR PASSIVE.
13.0 NOTICES
Notices shall, unless otherwise specified herein, be given, in writing, and may be delivered by hand delivery, United States mail, overnight courier service, facsimile or electronic messaging (e-mail) to the addresses set forth in Exhibit “PPA-F.”. Whenever this Agreement requires or permits delivery of a “notice” (or requires a Party to “notify”), the Party with such right or obligation shall provide a written communication in the manner specified below. A notice sent by facsimile transmission or electronic mail will be recognized and shall be deemed received on the Business Day on which such notice was transmitted if received before 5 p.m. Pacific Time (and if received after 5 p.m., on the next Business Day) and a notice by overnight mail or courier shall be deemed to have been received two (2) Business Days after it was sent or such earlier time as is confirmed by the receiving Party unless it confirms a prior oral communication, in which case any such notice shall be deemed received on the day sent. A Party may change its addresses by providing notice of same in accordance with this provision. A Party may request a change to Exhibit “PPA- F” as necessary to keep the information current.
14.0 TERM, TERMINATION EVENT AND TERMINATION
14.1 Term. The Term shall commence upon the execution by the duly authorized representatives of each of the Parties, and shall remain in effect until the conclusion of the Delivery Term, unless terminated sooner pursuant to the terms and conditions of this Agreement. All indemnity rights shall survive the termination of this Agreement for twelve (12) months.
14.2 Delivery Term. The Delivery Term of the Agreement is _______ years and is defined as the period of time from the Commercial Operation Date through the expiration or early termination of this Agreement.
14.3 Termination Event.
14.3.1 The Buyer shall have the right, but not the obligation, to terminate this Agreement upon the occurrence of any of the following, each of which is a “Termination Event”: (a) The Facility has not achieved Commercial Operation within seventy (70) days following the Deadline; (b) After the Commercial Operation Date, the Seller has not sold or delivered Energy from the Facility to the Buyer for a period of twelve (12) consecutive months; (c) If the Facility does not obtain RPS Certification within six (6) months of the Commercial Operation Date and maintain RPS Certification as required by Section 3.2; or (d) The Seller breaches any other material obligation of this Agreement.
14.3.2 The Seller shall have the right, but not the obligation, to terminate this Agreement upon the occurrence of any of the following, each of which is a “Termination Event”: (a) The Buyer fails to make a payment due and payable under this Agreement within thirty (30) days after written notice that such payment is due; or (b) The Buyer breaches any other material obligation of this Agreement. The preceding sentence notwithstanding, the Seller may terminate this Agreement without cause at any time prior to the Commercial Operation Date, subject to the provisions of Section 7 of this Agreement.
14.4 Time to Cure. None of the events described in Section 14.3.1 and 14.3.2 shall constitute a Termination Event if the Buyer or the Seller cures the event, failure, or circumstance within thirty (30) days after receipt of written notification sent by the other Party, seeking termination, or such longer period as may be necessary to cure so long as the Party subject to the Terminating Event is exercising diligent efforts to cure.
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14.5 Termination.
14.5.1 Declaration of a Termination Event. If a Termination Event has occurred and is continuing, the Party with the right to terminate shall have the right to: (a) send notice, designating a day, no earlier than thirty (30) days after such notice is deemed to be received (as provided in Section 13), as an early termination date of this Agreement (the “Early Termination Date”), unless the Seller has timely communicated with the Buyer and the Parties have agreed to resolve the circumstances giving rise to the Termination Event; (b) accelerate all amounts owing between the Parties; and (c) terminate this Agreement and end the Delivery Term effective as of the Early Termination Date.
14.5.2 Release of Liability for Termination Event. Upon termination of this Agreement pursuant to this section neither Party shall be under any further obligation or subject to liability hereunder, except with respect to the indemnity provision in Section 11 hereof, which shall remain in effect for a period of 12 months following the Early Termination Date.
14.6 No Limitation on Damages. Nothing in this Agreement shall be deemed or construed to limit a Party’s right to recover damages from the other Party, except as otherwise provided in this Agreement.
15.0 RELEASE OF DATA
Except as may be exempt from disclosure under applicable law, the Seller authorizes the Buyer to release to any regulatory authority having jurisdiction over the Facility or a Party, or to any request made pursuant to the California Constitution or the California Public Records Act, information regarding the Facility, including the Seller’s name and location, operational characteristics, the Term of this Agreement, the Facility resource type, the scheduled Commercial Operation Date, the actual Commercial Operation Date, the Contract Capacity, payments made to the Seller and Energy production information. The Seller acknowledges that this information may be made publicly available.
16.0 ASSIGNMENT
Neither Party shall assign this Agreement or its rights hereunder without the prior written consent of the other Party, which consent shall not be unreasonably withheld.
16.1 Upon the written request of the Seller, the Buyer will execute a “Lender Consent and Agreement” between the Seller and the Seller’s lender(s), if any, in the form acceptable to the Parties; provided, for illustration purposes only, an exemplar is attached hereto as Exhibit “PPA-G.”
16.2 Notwithstanding the foregoing, no Consent and Agreement shall be required for:
16.2.1 Any assignment or transfer of this Agreement by the Seller to an affiliate of the Seller, provided that such affiliate’s creditworthiness is equal to or better than that of Seller, as reasonably determined by the non-assigning or non-transferring Party; or
16.2.2 Any assignment or transfer of this Agreement by the Seller or the Buyer to a person succeeding to all or substantially all of the assets of such Party, provided that such person’s creditworthiness is equal to or greater than that of such Party, as reasonably determined by the non-assigning or non-transferring Party.
16.2.3 Notification of any assignment or transfer of this Agreement under Section 16.2.1 or 16.2.2 shall be given to the non-assigning or non-transferring Party in accordance with Exhibit “PPA-F.”
17.0 APPLICABLE LAW, VENUE, ATTORNEYS’ FEES, AND INTERPRETATION This Agreement will be governed by and construed in accordance with the laws of the State of California. The Parties will comply with applicable laws pertaining to their obligations arising under this Item 7
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Agreement. In the event that an action is brought, the Parties agree that trial of such action will be vested exclusively in the state courts of California or in the United States District Court for the Northern District of California in the County of Santa Clara, State of California. The prevailing party in any action brought to enforce the provisions of this Agreement may recover its reasonable costs and attorneys' fees expended in connection with that action. If a court of competent jurisdiction finds or rules that any provision of this Agreement, the Exhibits, or any amendment thereto is void or unenforceable, the unaffected provisions of this Agreement, the Exhibits, or any amendment thereto will remain in full force and effect. The Parties agree that the normal rule of construction to the effect that any ambiguity is to be resolved against the drafting party will not be employed in the interpretation of this Agreement or any Exhibit or any amendment thereof.
18.0 SEVERABILITY
If any provision in this Agreement is determined to be invalid, void or unenforceable by any court having jurisdiction, such determination shall not invalidate, void, or make unenforceable any other provision, agreement or covenant of this Agreement and the Parties shall use their best efforts to modify this Agreement to give effect to the original intention of the Parties.
19.0 COUNTERPARTS; INTERPRETATION OF CONFLICTING PROVISIONS This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be deemed one and the same Agreement. Delivery of an executed counterpart of this Agreement by facsimile or portable document format (“PDF”) transmission will be deemed as effective as delivery of an originally executed counterpart. Each Party delivering an executed counterpart of this Agreement by facsimile or PDF transmission will also deliver an originally executed counterpart, but the failure of any Party to deliver an originally executed counterpart of this Agreement will not affect the validity or effectiveness of this Agreement. In the event of a conflict between the Agreement and any, some or all of the Exhibits, the document imposing the more specific duty or obligation will prevail.
20.0 GENERAL
No amendment to or modification of this Agreement shall be enforceable unless reduced to writing and executed by both Parties. This Agreement shall not impart any rights enforceable by any third party other than a permitted successor or assignee bound to this Agreement. Waiver by a Party of any default by the other Party shall not be construed as a waiver of any other default. The headings used herein are for convenience and reference purposes only.
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21. EXHIBITS
The following exhibits shall be deemed incorporated in and made a part of this Agreement.
Exhibit “PPA-A” - Facility Description, Prices, and Reservation Deposit Exhibit “PPA-B” - Commercial Operation Date Confirmation Letter Exhibit “PPA-C” - Scheduling and Outage Notification Procedure Exhibit “PPA-D” - Green Attributes Reporting and Conveyance Procedures Exhibit “PPA-E” - Insurance Requirements
Exhibit “PPA-F” - Notices
Exhibit “PPA-G” - Form of Lender Consent and Agreement
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed by their authorized representatives as of the Effective Date.
CITY OF PALO ALTO SELLER
APPROVED AS TO FORM
Senior Deputy City Attorney
APPROVED
City Manager
Director of Utilities
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EXHIBIT “PPA-A”
Facility Description, Rates, and Reservation Deposit
Program Rates
Contract Term: [Fifteen (15), twenty (20), or twenty-five (25) years] Contract rate: $0.165 per kWh for solar resources, 15- or 20- or 25-year contract term (up to 3 MW solar energy resources program capacity)
$0.088 095 per kWh for solar resources, 15-year contract term (beyond 3 MW) $0.089 098 per kWh for solar resources, 20-year contract term (beyond 3 MW) $0.091 102 per kWh for solar resources, 25-year contract term (beyond 3 MW) $0.083 094 per kWh for non-solar resources, 15-year contract term $0.084 098 per kWh for non-solar resources, 20-year contract term $0.085 101 per kWh for non-solar resources, 25-year contract term Pre-certification rate: $0.08 per kWh
Reservation Deposit
Reservation Deposit ($20/kW of Contract Capacity): $ Service address:
Facility Description:
Contract Capacity: kW (CEC-AC), based on solar array rating (Panel rated output at PV USA test conditions x inverter efficiency) or inverter rating Facility primary fuel/technology:
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EXHIBIT “PPA-B”
Commercial Operation Date Confirmation Letter
In accordance with the terms of the Power Purchase Agreement (Palo Alto CLEAN), dated (the “Agreement”) by and between the City of Palo Alto, as the Buyer, and , as the Seller, this Confirmation Letter serves to
document the Parties’ agreement that (i) the conditions precedent to the occurrence of the Commercial Operation Date have been satisfied, and (ii) the Buyer has received Energy, as specified in the Agreement, as of , . The actual installed Contract Capacity is kW.
This Confirmation Letter shall confirm the Commercial Operation Date, as defined in the Agreement, as of the date referenced in the preceding sentence.
IN WITNESS WHEREOF, each Party has caused this letter to be duly executed by its authorized representative as of the date of last signature provided below:
Buyer Seller
By: By:
Name: Name:
Title: Director of Utilities Title:
Date: Date:
In recognition of the Commercial Operation Date relative to the Effective Date of the Agreement by and between the Buyer and the Seller, the Seller hereby calculates the amount to return, if any, of the Seller’s deposit, as follows:
Original Reservation Deposit Amount: $
Commercial Operation Date Deadline:
□ Commercial Operation Date is prior to Deadline
□ Commercial Operation Date occurred weeks following the Deadline, meaning that % of the Reservation Deposit is relinquished by Seller per Section 7.2.2 of the Power Purchase Agreement.
Amount (if any) of Reservation Deposit to return to the Seller is: $ Item 7
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EXHIBIT “PPA-C”
Scheduling and Outage Notification Procedure
C.1 Applicability. This Exhibit” PPA-C” shall apply if the Facility is subject to Section 6.0 of this Agreement.
C.2 Annual Operations Forecast
C.2.1 By the tenth (10th) day September of each calendar year, the Seller will provide NCPA with an annual operations forecast detailing hourly expected generation and all proposed planned Outages for the next calendar year. The annual operations forecast for the calendar year shall be provided by not later than ninety (90) days prior to the scheduled Commercial Operation Date of the Generating Facility.
C.2.2 NCPA may request modifications to the annual operations forecast at any time, and the Seller shall use good faith efforts to accommodate the requested modifications.
C.2.3 The Seller shall not conduct Planned Outages at times other than as set forth in its annual operations forecast, unless approved in advance by NCPA, which approval shall not be withheld or delayed unreasonably.
C.2.4 The Seller shall not schedule or conduct Planned Outages from 12:00 p.m. through 7:00 p.m. Pacific Time during the months of June through October.
C.3. Short Term Operations Forecasts
C.3.1. Quarterly Operations Forecast
C.3.1.1 By the fifth (5th) day of January, April and July of each Contract Year, the Seller shall provide a calendar quarter-operations forecast by hour of expected generation and all proposed Planned Outages for the next full calendar quarter and the twelve (12) months following that calendar quarter. As an example, by January 5, 2014, the Seller would provide a calendar quarter-operations forecast by hour of expected generation for the period, April 1, 2014 through June 30, 2014, and identify all proposed Planned Outages for the period, April 1, 2014 through June 30, 2015.
C.3.1.2 NCPA will approve or require modifications to the proposed calendar quarter-operations forecast within ten (10) days of receipt of the forecast.
C.3.1.3 If required by NCPA, the Seller will provide a modified calendar quarter-operations forecast within seven (7) days after receipt of required modifications from NCPA.
C.3.2 Weekly Update
C.3.2.1 By 14:00 of each Wednesday, the Seller shall provide an electronic update, in a format specified by NCPA, to the calendar quarter-operations forecast for the following seven (7) days (Thursday through the next Wednesday).
C.3.2.2 The weekly update shall include hourly expected generation and all proposed planned Outages for the relevant seven (7) day period.
C.4 Outage Detail for Annual and Short Term Operations Forecasts. Outage information provided by the Seller shall include, at a minimum, the start time and stop time of the Outage, capacity out of service (kW), the equipment that is or will be out of service, and the reason for the Outage.
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C.5 General Scheduling Protocols
C.5.1 Daily Modifications to Forecasts. Unless otherwise mutually agreed, the Seller may make changes to the weekly update to the calendar quarter-operations forecast by providing such changes to NCPA prior to 08:00 of the day that is two (2) Business Days before the active scheduling day as determined by the WECC prescheduling calendar. Example: For power that is scheduled for generation or delivery on Friday, March 29, 2014, changes must be submitted to NCPA by 08:00 on Wednesday, March 27, 2014.
C.5.2 Hourly Modifications to Active Schedules. Unless otherwise mutually agreed, the Seller may request changes to active schedules by providing such changes to NCPA with a minimum of four (4) hours’ notice prior to the applicable CAISO market deadline (e.g. Hour Ahead Scheduling Process (“HASP”) Scheduling deadline, as defined in the CAISO Tariff).
Active day Schedule changes are not binding. Changes to active Schedules are limited to two (2) changes per day, excluding forced Outages, unless otherwise agreed to between the Parties. One request for a Schedule change, of one-hour or multiple-hours duration, constitutes one Schedule change. Example: For power that is scheduled for generation or delivery in hour ending 15:00 (for the period from 14:01 to 15:00), changes must be submitted to NCPA by 10:00.
C.5.3. Unforeseen Circumstances. At the Seller’s request, NCPA may, but is not required to, modify the Schedules for the Generation Facility Output due to unforeseen circumstances in accordance with the above scheduling timeline constraints described in this Exhibit PPA-C.
C.5.4. Absence of Forecasts. In the absence of forecasts and schedules as required by this Agreement or this Exhibit, NCPA shall utilize the most current information the Seller provides in the development and submission of Schedules.
C.6 Outage Reporting Protocols
C.6.1. Notification. The Seller shall notify NCPA of all planned or forced Outages of the Generating Facility to ensure compliance with the CAISO Outage Coordination and Enforcement Protocols.
C.6.1.1 Outage information provided by the Seller shall include, at a minimum, the start time and stop time of the Outage, Capacity out of service (kW), equipment out of service, and the reason for the Outage.
C. 6.1.2 Seller shall provide the Planned Outages not included in the annual operations forecast, the calendar quarter-operations forecast, or the weekly update, to NCPA at least four (4) Business Days prior to the start of the requested outage.
C. 6.1.3 At any time prior to the start of a Planned Outage, the CAISO may deny the Outage due to a System Emergency (as defined in the CAISO Tariff) or as otherwise permitted under the CAISO Tariff. If NCPA receives notice that the CAISO has denied an Outage in accordance with the CAISO Tariff, NCPA will notify the Seller as soon as possible and the Seller shall modify the planned Outage as required by the CAISO.
C.6.2 Commencement of an Outage. The Seller shall not begin any Planned Outage without the prior approval of NCPA and the CAISO.
C.6.3 Forced Outages
C.6.3.1 The Seller shall report the Forced Outages to NCPA within twenty (20) Item 7
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minutes of such Outages.
C.6.3.2 The Seller’s notice of a Forced Outage sent to NCPA shall include the reason for the Outage (if known), expected duration of the Outage, and the Capacity reduction.
C.6.3.3 By the end of the next Business Day following the day on which a Forced Outage has occurred, the Seller shall provide to NCPA a detailed written report, specifying the reason for the Outage, expected duration of such Outage, capacity reduction, and actions taken to mitigate such Outage.
C.6.4 Return to Service. The Seller shall notify NCPA as soon as possible, but in any case before the Generating Facility is returned to service.
C.7 Notices. All Scheduling notices and Schedules shall be submitted to NCPA by phone, fax or email, or other means as may be mutually agreed by the Parties, to the persons designated in Exhibit “PPA-F.”
C.8 Changes in Scheduling and Outage Procedure. The Buyer shall revise Exhibit “PPA-C,” or, as appropriate, give written notice to the Seller regarding the revision, and issue a new Exhibit “PPA-C,” which shall then become part of the Agreement to reflect changes in the scheduling and outage notification procedure.
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EXHIBIT “PPA-D”
Green Attributes Reporting and Conveyance Procedures
D.1 Additional Definitions for the Conveyance of Green Attributes D.1.1 “Certificate Transfers” means the process, as described in the WREGIS Operating Rules, whereby a WREGIS account holder may request that WREGIS Certificates from a specific generating unit shall be directly deposited to another WREGIS account.
D.1.2 “WREGIS Certificates” means a certificate created within the WREGIS system that represents all Renewable and Green Attributes from one MWh of electricity generation from an Eligible Renewable Energy Resource that is registered with WREGIS.
D.1.3 “WREGIS Operating Rules” means the document published by WREGIS that governs the operation of the WREGIS system for registering, tracking, and conveying, among others, RECs produced from Eligible Renewable Energy Resources that shall be registered with WREGIS.
D.1.4 “WREGIS” means Western Renewable Energy Generation Information System.
D.2 RECs. Green Attributes shall be conveyed by the Seller to the Buyer through RECs, which shall be registered tracked and conveyed to the Buyer, using WREGIS.
D.3 WREGIS Registration. Prior to the Commercial Operation Date, the Buyer will register the Facility in the Buyer’s WREGIS account on behalf of the Seller. The Buyer shall charge back to the Seller any costs of registering and maintaining the registration of the Facility with WREGIS. The Seller shall provide to the Buyer any documents required by WREGIS and assign the Seller’s rights to register the Facility in WREGIS, using agreements provided by WREGIS.
D.4 B u yer ’s W REGI S Acco unt . The Buyer shall, at its sole expense, establish and maintain the Buyer’s WREGIS account sufficient to accommodate the WREGIS Certificates produced by the output of the Facility. The Buyer shall be responsible for all expenses associated with (A) establishing and maintaining the Buyer’s WREGIS Account, and (B) subsequently transferring or retiring WREGIS Certificates.
D.5 Qualified Reporting Entity. The Buyer shall be the Qualified Reporting Entity (as such term is defined by WREGIS) for the Facility, and shall be responsible for providing the metered Output data to WREGIS.
D.6 Reporting of Environmental Attributes. In lieu of the Seller’s transfer of the WREGIS Certificates using Certificate Transfers from the Seller’s WREGIS account to the Buyer’s WREGIS account, the Buyer shall report the Facility as being held directly in its WREGIS account, which will preclude the Seller from reporting the Facility in its own WREGIS account.
D.6.1 By avoiding the use of Certificate Transfers, there will be no transaction costs to the Seller or the Buyer for the Certificate Transfers that would otherwise be used.
D.6.2 WREGIS Certificates for the Facility will be created on a calendar month basis in accordance with the certification procedure established by the WREGIS Operating Rules in an amount equal to the Energy generated by the Project and delivered to the Buyer in the same calendar month.
D.6.3 WREGIS Certificates will only be created for whole MWh amounts of energy generated. Any fractional MWh amounts (i.e., kWh) will be carried forward until sufficient generation is accumulated for the creation of a WREGIS Certificate and all such accumulated Item 7
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MWh of Environmental Attributes will then be available to Buyer.
D.6.4 If a WREGIS Certificate Modification (as such term is defined by WREGIS) will be required to reflect any errors or omissions regarding the Green Attributes from the Facility, then the Buyer will manage the submission of the WREGIS Certificate Modification.
D.6.5 Due to the expected delay in the creation of WREGIS Certificates relative to the timing of invoice payments under Section 2, the Buyer will normally be making an invoice payment for the Output for a given month in accordance with Section 2 before the WREGIS Certificates for such month may be created in the Buyer’s WREGIS account. Notwithstanding this delay, the Buyer shall have all right and title to all such WREGIS Certificates upon payment to the Seller in accordance with Section 2.
D.7 Changes in Green Attributes Reporting and Conveyance Procedures. The Buyer shall revise this Exhibit “PPA-D,” as appropriate, give written notice to the Seller regarding the revision, and issue a new Exhibit “PPA-D,” which shall then become part of this Agreement in the event that:
D.7.1 WREGIS changes the WREGIS Operating Rules (as defined by WREGIS) after the Effective Date or applies the WREGIS Operating Rules in a manner inconsistent with this Exhibit “PPA-D” after the Effective Date; or,
D.7.2 WREGIS is replaced as the primary method that the Buyer uses for conveyance of Green Attributes, or additional methods to convey all Green Attributes, are required.
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EXHIBIT “PPA-E”
Insurance Requirements
CONTRACTORS TO THE CITY OF PALO ALTO (CITY), AT THEIR SOLE EXPENSE, WILL FOR THE TERM OF THE
CONTRACT OBTAIN AND MAINTAIN INSURANCE IN THE AMOUNTS FOR THE COVERAGE SPECIFIED BELOW, AFFORDED BY COMPANIES WITH A BEST’S KEY RATING OF A-:VII, OR HIGHER, LICENSED OR AUTHORIZED TO TRANSACT INSURANCE BUSINESS IN THE STATE OF CALIFORNIA.
AWARD IS CONTINGENT ON COMPLIANCE WITH CITY’S INSURANCE REQUIREMENTS, AS SPECIFIED, BELOW:
MINIMUM LIMITS
REQUIRED TYPE OF COVERAGE REQUIREMENT EACH
OCCURRENCE AGGREGATE
YES
YES
WORKER’S COMPENSATION
AUTOMOBILE LIABILITY
STATUTORY
STATUTORY
YES COMMERCIAL GENERAL
LIABILITY, INCLUDING
PERSONAL INJURY, BROAD FORM
PROPERTY DAMAGE BLANKET
CONTRACTUAL, AND FIRE LEGAL
LIABILITY
BODILY INJURY
PROPERTY DAMAGE
BODILY INJURY & PROPERTY DAMAGE
COMBINED.
$1,000,000
$1,000,000
$1,000,000
$2,000,000
$2,000,000
$2,000,000
YES COMPREHENSIVE AUTOMOBILE
LIABILITY, INCLUDING, OWNED,
HIRED, NON-OWNED
BODILY INJURY
- EACH PERSON
- EACH OCCURRENCE
PROPERTY DAMAGE
BODILY INJURY AND PROPERTY
DAMAGE, COMBINED
$1,000,000
$1,000,000
$1,000,000
$1,000,000
$1,000,000
$1,000,000
$1,000,000
$1,000,000
$1,000,000
$1,000,000
NO
PROFESSIONAL LIABILITY,
INCLUDING, ERRORS AND
OMISSIONS, MALPRACTICE
(WHEN APPLICABLE), AND
NEGLIGENT PERFORMANCE ALL DAMAGES $1,000,000
YES THE CITY OF PALO ALTO IS TO BE NAMED AS AN ADDITIONAL INSURED: PROPOSER, AT ITS SOLE COST AND
EXPENSE, SHALL OBTAIN AND MAINTAIN, IN FULL FORCE AND EFFECT THROUGHOUT THE ENTIRE TERM OF ANY
RESULTANT AGREEMENT, THE INSURANCE COVERAGE HEREIN DESCRIBED, INSURING NOT ONLY PROPOSER AND ITS SUBCONSULTANS, IF ANY, BUT ALSO, WITH THE EXCEPTION OF WORKERS’ COMPENSATION, EMPLOYER’S
LIABILITY AND PROFESSIONAL INSURANCE, NAMING AS ADDITIONAL INSURES CITY, ITS COUNCIL MEMBERS, OFFICERS, AGENTS, AND EMPLOYEES.
I. INSURANCE COVERAGE MUST INCLUDE:
A. A PROVISION FOR A WRITTEN THIRTY DAY ADVANCE NOTICE TO CITY OF CHANGE IN COVERAGE OR OF COVERAGE CANCELLATION; AND
B. A CONTRACTUAL LIABILITY ENDORSEMENT PROVIDING INSURANCE COVERAGE FOR CONTRACTOR’S AGREEMENT TO INDEMNIFY CITY – SEE, SAMPLE AGREEMENT FOR SERVICES.
II. SUBMIT CERTIFICATE(S) OF INSURANCE EVIDENCING REQUIRED COVERAGE, OR COMPLETE THIS SECTION AND IV THROUGH V, BELOW.
A. NAME AND ADDRESS OF COMPANY AFFORDING COVERAGE (NOT AGENT OR BROKER):
B. NAME, ADDRESS, AND PHONE NUMBER OF YOUR INSURANCE AGENT/BROKER:
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C. POLICY NUMBER(S):
D. DEDUCTIBLE AMOUNT(S) (DEDUCTIBLE AMOUNTS IN EXCESS OF $5,000 REQUIRE CITY’S PRIOR APPROVAL):
III. AWARD IS CONTINGENT ON COMPLIANCE WITH CITY’S INSURANCE REQUIREMENTS, AND PROPOSER’S SUBMITTAL OF CERTIFICATES OF INSURANCE EVIDENCING COMPLIANCE WITH THE REQUIREMENTS SPECIFIED HEREIN.
IV. ENDORSEMENT PROVISIONS, WITH RESPECT TO THE INSURANCE AFFORDED TO “ADDITIONAL INSURES”
A. PRIMARY COVERAGE
WITH RESPECT TO CLAIMS ARISING OUT OF THE OPERATIONS OF THE NAMED INSURED, INSURANCE AS
AFFORDED BY THIS POLICY IS PRIMARY AND IS NOT ADDITIONAL TO OR CONTRIBUTING WITH ANY OTHER INSURANCE CARRIED BY OR FOR THE BENEFIT OF THE ADDITIONAL INSURES.
B. CROSS LIABILITY
THE NAMING OF MORE THAN ONE PERSON, FIRM, OR CORPORATION AS INSURES UNDER THE POLICY
SHALL NOT, FOR THAT REASON ALONE, EXTINGUISH ANY RIGHTS OF THE INSURED AGAINST ANOTHER,
BUT THIS ENDORSEMENT, AND THE NAMING OF MULTIPLE INSUREDS, SHALL NOT INCREASE THE TOTAL LIABILITY OF THE COMPANY UNDER THIS POLICY.
C. NOTICE OF CANCELLATION
1. IF THE POLICY IS CANCELED BEFORE ITS EXPIRATION DATE FOR ANY REASON OTHER THAN THE NON-PAYMENT OF PREMIUM, THE ISSUING COMPANY SHALL PROVIDE CITY AT LEAST A THIRTY (30) DAY WRITTEN NOTICE BEFORE THE EFFECTIVE DATE OF CANCELLATION.
2. IF THE POLICY IS CANCELED BEFORE ITS EXPIRATION DATE FOR THE NON-PAYMENT OF PREMIUM, THE ISSUING COMPANY SHALL PROVIDE CITY AT LEAST A TEN (10) DAY WRITTEN NOTICE BEFORE THE EFFECTIVE DATE OF CANCELLATION.
V. PROPOSER CERTIFIES THAT PROPOSER’S INSURANCE COVERAGE MEETS THE ABOVE REQUIREMENTS:
THE INFORMATION HEREIN IS CERTIFIED CORRECT BY SIGNATURE(S) BELOW. SIGNATURE(S) MUST BE SAME SIGNATURE(S) AS APPEAR(S) ON SECTION II, ATTACHMENT A, PROPOSER’S INFORMATION FORM.
Firm:
Signature:
Name:
(Print or type name)
Signature:
Name:
(Print or type name)
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NOTICES SHALL BE MAILED TO:
PURCHASING AND
CONTRACT ADMINISTRATION
CITY OF PALO ALTO
P.O. BOX 10250
PALO ALTO, CA 94303.
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EXHIBIT “PPA-F”
Notices
Contract Administration
BUYER: SELLER:
City of Palo Alto
Utilities Resource Management
250 Hamilton Avenue
Palo Alto, CA 94301
Ph: 650-329-2689
Email: [email protected] Billing and Settlements
BUYER: SELLER:
City of Palo Alto
Utilities Resource Management
250 Hamilton Avenue
Palo Alto, CA 94301
Ph: 650-329-2689
Email: [email protected] Forecasting and Outage Reporting under Section 6 of this Agreement Planned Outages:
BUYER: SELLER:
Northern California Power Agency Real-
Time Dispatch
651 Commerce Drive
Roseville, CA 95678
Ph: 916-786-3518
Forced Outages
BUYER: SELLER:
Northern California Power Agency Real-
Time Dispatch
651 Commerce Drive
Roseville, CA 95678
Ph: 916-786-3518
Forecasting and Scheduling
BUYER: SELLER:
Northern California Power Agency
Operations and Pre-Scheduling
651 Commerce Drive
Roseville, CA 95678
Ph: 916-786-0123
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EXHIBIT “PPA-G”
Form of Lender Consent and Agreement
This CONSENT AND AGREEMENT (this “Consent”), dated as of , 20 , is entered into by and among the CITY OF PALO ALTO, a California chartered municipal corporation (the “City”), , a corporation (the “Lender),” by its agent,
(the “Administrative Agent”), and , a
corporation (the “Borrower”) (collectively, the “Parties”). Unless otherwise defined, all capitalized terms have the meaning given in the Contract (as hereinafter defined).
RECITALS
A. Borrower intends to develop, construct, install, test, own, operate and use an approximately MW electric generating facility located in the city of Palo Alto in the State of California, known as the Project (the “Project”).
B. In order to partially finance the development, construction, installation, testing, operation and use of the Project, Borrower has entered into that certain financing agreement dated as of (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Financing Agreement”), among Borrower, the financial institutions from time to time parties thereto (collectively, the “Lenders”) , and Administrative Agent for the Lenders, pursuant to which, among other things, Lenders have extended commitments to make loans and other financial accommodations to, and for the benefit of, Borrower.
C. The City and Borrower have entered into that certain Power Purchase Agreement, dated as of (attached hereto and incorporated herein by reference, as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms thereof and hereof, the “Power Purchase Agreement”).
D. The City and Borrower have entered into that certain Interconnection Agreement, dated as of _ (attached hereto and incorporated herein by reference, as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms thereof and hereof, the “Interconnection Agreement”).
E. Pursuant to a security agreement executed by Borrower and Administrative Agent for the Lenders (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Security Agreement”), Borrower has agreed, among other things, to assign, as collateral security for its obligations under the Financing Agreement and related documents (collectively, the “Financing Documents”), all of its right, title and interest in, to and under the Power Purchase Agreement and Interconnection Agreement to Administrative Agent for the benefit of itself, the Lenders and each other entity or person providing collateral security under the Financing Documents.
F. It is a requirement under the Financing Agreement that the Parties hereto execute this Consent.
AGREEMENT
NOW THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and intending to be legally bound, the Parties agree, as follows:
1. CONSENT TO ASSIGNMENT. The City acknowledges the assignment referred to in Recital E above, consents to an assignment of the Power Purchase Agreement and Interconnection Agreement pursuant thereto, and agrees with Administrative Agent, as follows:
(a) Administrative Agent shall be entitled (but not obligated) to exercise all rights and to cure any Item 7
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defaults of Borrower under the Power Purchase Agreement or Interconnection Agreement, as the case may be, subject to applicable notice and cure periods provided in the Power Purchase Agreement and Interconnection Agreement. Upon receipt of notice from Administrative Agent, the City agrees to accept such exercise and cure by Administrative Agent if timely made by Administrative Agent under the Power Purchase Agreement or Interconnection Agreement, as the case may be, and this Consent. Upon receipt of Administrative Agent's written instructions and to the extent allowed by law, the City agrees to make directly to such account as Administrative Agent may direct the City, in writing, from time to time, all payments to be made by the City to Borrower under the Power Purchase Agreement or Interconnection Agreement, as the case may be, from and after the City’s receipt of such instructions, and Borrower consents to any such action. The City shall not incur any liability to Borrower under the Power Purchase Agreement, Interconnection Agreement, or this Consent for directing such payments to Administrative Agent in accordance with this subsection (a).
(b) The City will not, without the prior written consent of Administrative Agent (such consent not to be unreasonably withheld), (i) cancel or terminate the Power Purchase Agreement or Interconnection Agreement, or consent to or accept any cancellation, termination or suspension thereof by Borrower, except as provided in the Power Purchase Agreement or Interconnection Agreement and in accordance with subparagraph 1(c) hereof, (ii) sell, assign or otherwise dispose (by operation of law or otherwise) of any part of its interest in the Power Purchase Agreement or Interconnection Agreement, except as provided in the Power Purchase Agreement or Interconnection Agreement, or (iii) amend or modify the Power Purchase Agreement or Interconnection Agreement in any manner materially adverse to the interest of the Lenders in the Power Purchase Agreement and Interconnection Agreement as collateral security under the Security Agreement.
(c) The City agrees to deliver duplicates or copies of all notices of default delivered by the City under or pursuant to the Power Purchase Agreement or Interconnection Agreement to Administrative Agent in accordance with the notice provisions of this Consent. The City shall deliver any such notices concurrently with delivery of the notice to Borrower under the Power Purchase Agreement or Interconnection Agreement. To the extent that a cure period is provided under the Power Purchase Agreement or Interconnection Agreement, Administrative Agent shall have the same period of time to cure the breach or default that Borrower is entitled to under the Power Purchase Agreement or Interconnection Agreement, except that if the City does not deliver the default notice to Administrative Agent concurrently with delivery of the notice to Borrower under the Power Purchase Agreement or Interconnection Agreement, then as to Administrative Agent, the applicable cure period under the Power Purchase Agreement or Interconnection Agreement shall begin on the date on which the notice is given to Administrative Agent. If possession of the Project is necessary to cure such breach or default, and Administrative Agent or its designee(s) or assignee(s) declare Borrower in default and commence foreclosure proceedings, Administrative Agent or its designee(s) or assignee(s) will be allowed a reasonable period to complete such proceedings so long as Administrative Agent or its designee(s) continue to perform any monetary obligations under the Power Purchase Agreement or Interconnection Agreement, as the case may be. The City consents to the transfer of Borrower's interest under the Power Purchase Agreement and Interconnection Agreement to the Lenders or Administrative Agent or their designee(s) or assignee(s) or any of them or a purchaser or grantee at a foreclosure sale by judicial or nonjudicial foreclosure and sale or by a conveyance by Borrower in lieu of foreclosure and agrees that upon such foreclosure, sale or conveyance, the City shall recognize the Lenders or Administrative Agent or their designee(s) or assignee(s) or any of them or other purchaser or grantee as the applicable party under the Power Purchase Agreement and Interconnection Agreement (provided that such Lenders or Administrative Agent or their designee(s) or assignee(s) or purchaser or grantee assume the obligations of Borrower under the Power Purchase Agreement and Interconnection Agreement, including, without limitation, satisfaction and compliance with all credit provisions of the Power Purchase Agreement and Interconnection Agreement, if any, and provided further that such Lenders or Administrative Agent or their designee(s) or assignee(s) or purchaser or grantee has a creditworthiness equal to or better than Item 7
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Borrower, as reasonably determined by City).
(d) In the event that either the Power Purchase Agreement or Interconnection Agreement, or both is rejected by a trustee or debtor-in-possession in any bankruptcy or insolvency proceeding, and if, within forty-five (45) days after such rejection, Administrative Agent shall so request, the City will execute and deliver to Administrative Agent a new power purchase agreement or interconnection agreement, as the case may be, which power purchase agreement or interconnection agreement shall be on the same terms and conditions as the original Power Purchase Agreement or Interconnection Agreement for the remaining term of the original Power Purchase Agreement or Interconnection Agreement before giving effect to such rejection, and which shall require Administrative Agent to cure any defaults then existing under the original Power Purchase Agreement or Interconnection Agreement. Notwithstanding the foregoing, any new renewable power purchase agreement or interconnection agreement will be subject to all regulatory approvals required by law. The City will use good faith efforts to promptly obtain any necessary regulatory approvals.
(e) In the event Administrative Agent, the Lenders or their designee(s) or assignee(s) elect to perform Borrower's obligations under the Power Purchase Agreement and Interconnection Agreement, succeed to Borrower’s interest under the Power Purchase Agreement and Interconnection Agreement, or enter into a new power purchase agreement or interconnection agreement as provided in subparagraph 1(d) above, the recourse of the City against Administrative Agent, Lenders or their designee(s) and assignee(s) shall be limited to such Parties’ interests in the Project, and the credit support required under the Power Purchase Agreement and Interconnection Agreement, if any.
(f) In the event Administrative Agent, the Lenders or their designee(s) or assignee(s) succeed to Borrower's interest under the Power Purchase Agreement and Interconnection Agreement, Administrative Agent, the Lenders or their designee(s) or assignee(s) shall cure any then-existing payment and performance defaults under the Power Purchase Agreement or Interconnection Agreement, except any performance defaults of Borrower itself, which by their nature are not susceptible of being cured. Administrative Agent, the Lenders and their designee(s) or assignee(s) shall have the right to assign all or a pro rata interest in the Power Purchase Agreement and Interconnection Agreement to a person or entity to whom Borrower’s interest in the Project is transferred, provided such transferee assumes the obligations of Borrower under the Power Purchase Agreement and Interconnection Agreement and has a creditworthiness equal to or better than Borrower, as reasonably determined by the City. Upon such assignment, Administrative Agent and the Lenders and their designee(s) or assignee(s) (including their agents and employees) shall be released from any further liability thereunder accruing from and after the date of such assignment, to the extent of the interest assigned.
2. REPRESENTATIONS AND WARRANTIES. The City hereby represents and warrants that as of the date of this Consent:
(a) It (i) is duly formed and validly existing under the laws of the State of California, and (ii) has all requisite power and authority to enter into and to perform its obligations hereunder and under the Power Purchase Agreement and Interconnection Agreement, and to carry out the terms hereof and thereof and the transactions contemplated hereby and thereby; (b) the execution, delivery and performance of this Consent, the Power Purchase Agreement and the Interconnection Agreement have been duly authorized by all necessary action on its part and do not require any approvals, material filings with, or consents of any entity or person which have not previously been obtained or made;
(c) each of this Consent, the Power Purchase Agreement, and the Interconnection Agreement is in full force and effect;
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(d) each of this Consent, the Power Purchase Agreement, and the Interconnection Agreement has been duly executed and delivered on its behalf and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors’ rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law);
(e) there is no litigation, arbitration, investigation or other proceeding pending for which the City has received service of process or, to the City’s actual knowledge, threatened against the City relating solely to this Consent, the Power Purchase Agreement, or the Interconnection Agreement and the transactions contemplated hereby and thereby;
(f) the execution, delivery and performance by it of this Consent, the Power Purchase Agreement, and the Interconnection Agreement, and the consummation of the transactions contemplated hereby, will not result in any violation of, breach of or default under any term of any material contract or material agreement to which it is a party or by which it or its property is bound, or of any material requirements of law presently in effect having applicability to it, the violation, breach or default of which could have a material adverse effect on its ability to perform its obligations under this Consent;
(g) neither the City nor, to the City’s actual knowledge, any other party to the Power Purchase Agreement or Interconnection Agreement, is in default of any of its obligations thereunder; and (h) to the City’s actual knowledge, (i) no Force Majeure Event exists under, and as defined in, the Power Purchase Agreement or Interconnection Agreement and (ii) no event or condition exists which would either immediately or with the passage of any applicable grace period or giving of notice, or both, enable either the City or Borrower to terminate or suspend its obligations under the Power Purchase Agreement or the Interconnection Agreement.
Each of the representations and warranties set forth herein shall survive the execution and delivery of this Consent and the consummation of the transactions contemplated hereby.
3. NOTICES. All notices required or permitted hereunder shall be given, in writing, and shall be effective (a) upon receipt if hand delivered, (b) upon telephonic verification of receipt if sent by facsimile and (c) if otherwise delivered, upon the earlier of receipt or three (3) Business Days after being sent registered or certified mail, return receipt requested, with proper postage affixed thereto, or by private courier or delivery service with charges prepaid, and addressed as specified below:
If to the City:
[ ]
[ ]
[ ]
Telephone No.: [ ]
Facsimile No.: [ ]
Attn: [ ]
If to Administrative Agent:
[ ]
[ ]
[ ]
Telephone No.: [ ]
Facsimile No.: [ ]
Attn: [ ]
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If to Borrower:
[ ]
[ ]
[ ]
Telephone No.: [ ]
Facsimile No.: [ ]
Attn: [ ]
Any party shall have the right to change its address for notice hereunder to any other location within the United States by giving thirty (30) days written notice to the other parties in the manner set forth above.
4. ASSIGNMENT, TERMINATION, AMENDMENT. This Consent shall be binding upon and benefit the successors and assigns of the Parties hereto and their respective successors, transferees and assigns (including without limitation, any entity that refinances all or any portion of the obligations under the Financing Agreement). The City agrees (a) to confirm such continuing obligation, in writing, upon the reasonable request of (and at the expense of) Borrower, Administrative Agent, the Lenders or any of their respective successors, transferees or assigns, and (b) to cause any successor-in-interest to the City with respect to its interest in the Power Purchase Agreement or Interconnection Agreement to assume, in writing and in form and substance reasonably satisfactory to Administrative Agent, the obligations of City hereunder. Any purported assignment or transfer of the Power Purchase Agreement or Interconnection Agreement not in conjunction with the written instrument of assumption contemplated by the foregoing clause (b) shall be null and void. No termination, amendment, or variation of any provisions of this Consent shall be effective unless in writing and signed by the parties hereto. No waiver of any provisions of this Consent shall be effective unless in writing and signed by the party waiving any of its rights hereunder.
5. GOVERNING LAW. This Consent shall be governed by the laws of the State of California applicable to contracts made and to be performed in California. The federal courts or the state courts located in California shall have exclusive jurisdiction to resolve any disputes with respect to this Consent with the City, Assignor, and the Lender or Lenders irrevocably consenting to the jurisdiction thereof for any actions, suits, or proceedings arising out of or relating to this Consent.
6. COUNTERPARTS. This Consent may be executed in one or more duplicate counterparts, and when executed and delivered by all the parties listed below, shall constitute a single binding agreement.
7. SEVERABILITY. In case any provision of this Consent, or the obligations of any of the Parties hereto, shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions, or the obligations of the other Parties hereto, shall not in any way be affected or impaired thereby.
8. ACKNOWLEDGMENTS BY BORROWER. Borrower, by its execution hereof, acknowledges and agrees that neither the execution of this Consent, the performance by the City of any of the obligations of the City hereunder, the exercise of any of the rights of the City hereunder, or the acceptance by the City of performance of the Power Purchase Agreement by any party other than Borrower shall (1) release Borrower from any obligation of Borrower under the Power Purchase Agreement or Interconnection Agreement, (2) constitute a consent by the City to, or impute knowledge to the City of, any specific terms or conditions of the Financing Agreement, the Security Agreement or any of the other Financing Documents, or (3) except as expressly set forth in this Consent, constitute a waiver by the City of any of its rights under the Power Purchase Agreement or Interconnection Agreement. Borrower and Administrative Agent acknowledge hereby for the benefit of City that none of the Financing Agreement, the Security Item 7
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Agreement, the Financing Documents or any other documents executed in connection therewith alter, amend, modify or impair (or purport to alter, amend, modify or impair) any provisions of the Power Purchase Agreement.
CITY OF PALO ALTO ADMINISTRATIVE AGENT
APPROVED AS TO FORM
Senior Deputy City Attorney
BORROWER
APPROVED
City Manager
Director of Utilities
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City Council
Staff Report
From: City Manager
Report Type: CONSENT CALENDAR
Lead Department: Public Works
Meeting Date: March 11, 2024
Report #:2401-2479
TITLE
Approval of Construction Contract C24190072 with O'Grady Paving, Inc. in the Amount of $5,432,037 and Authorization for the City Manager or Their Designee to Negotiate and Execute Change Orders for Related Additional but Unforeseen Work that May Develop During the Project Up to a Not-to-Exceed Amount of $543,204 for the Fiscal Year 2024 Asphalt Paving Project, Capital Improvement Program Projects PE-86070, PO-89003, CB-17001, PE-20001, PE-09003, and SD-06101; CEQA status – exempt under CEQA Guidelines Section 15301(c) and 15301(d)
RECOMMENDATION
Staff recommends that Council:
1. Approve and authorize the City Manager or their designee to execute construction contract C24190072 with O'Grady Paving, Inc. in the amount $5,432,037 for Palo Alto Fiscal Year 2024 Street Resurfacing Project (Capital Improvement Program Projects PE- 86070, PO-89003, CB-17001, PE-20001, PE-09003 and SD-06101); and
2. Authorize the City Manager or their designee to negotiate and execute one or more change orders to the contract with O'Grady Paving, Inc. for related, additional, and unforeseen work that may develop during the project, the total value of which shall not exceed $543,204.
BACKGROUND
The Public Works Engineering Services Division manages construction contracts for concrete repair, preventive maintenance, resurfacing, and reconstruction of various City streets annually.
In more recent years, additional Capital Improvement Program (CIP) projects are being built through annualized resurfacing contracts due to the complexity of construction and benefit of being included in a larger project.
The City uses StreetSaver, the Metropolitan Transportation Commission’s (MTC) pavement management system which is used by almost all Bay Area jurisdictions. The Pavement Condition Index (PCI) is calculated by evaluating a sample pavement section on each block for different ratings variables from mild to severe – including raveling, potholes, amount of trenches, and base Item 8
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failures. These factors are entered into the StreetSaver program and a PCI is calculated. All staff who evaluate street conditions and pavement distresses have multiple years of experience and have been trained by MTC.
While staff uses the PCI scores to prioritize streets, staff also takes into consideration additional information including coordination with Utilities projects and Office of Transportation planned striping improvements, and whether the street has bike lanes or is a bicycle boulevard. Staff also tries to group multiple streets in a neighborhood whenever possible, so that construction is not occurring over multiple years if it can be avoided. Additionally, each block has its own estimated repair cost, which impacts how many streets can be in each project given the annual funding amounts. The streets included in this year’s resurfacing contract were selected previously with the Senate Bill 1 Resolution approved by Council in June of 2023.1 During last year’s winter, areas within Barron Park were identified that had substantial drainage issues. These areas have been selected for valley gutter improvements to improve drainage and longevity of the roadway surface by providing the proper channel for water to flow without damaging the roadway. Once problem areas have been pinpointed, the community is notified, and a meeting is requested to establish support for the creation of the gutters. Valley gutters are then installed along the existing pavement’s edge to maintain the existing roadway surface while providing drainage improvements.
There are more than 180 bridge and culvert structures owned and maintained by the City. A structural consulting firm inspected 50 City-owned bridges and culverts in 2017, after which a recurring bridge inspection, maintenance, and repair program was established in fiscal year 2020.
This program includes on-going inspections of the bridge and culvert structures, recommendations for repairs, and maintenance to meet functional and structural improvements in accordance with industry standards. In general, the recommended recurring inspection frequency for these structures is two to four years. As part of the recurring bridge inspection program, 25 of the 50 City-owned bridges inspected in 2017 were prioritized for inspections in 2022. Based on the findings from the condition assessment, six bridges were prioritized for repairs.
ANALYSIS
Staff recommends approval of Contract No. C241900722 as part of the program to maintain and improve the condition of Palo Alto’s streets. The $5,432,037 expenditure for this contract will be used to repave 9.59 lane-miles of arterial and residential streets with PCI scores averaging 45.
This will help maintain and improve the City’s PCI beyond its average of 84 and will address many streets whose PCI scores fall below the City’s minimum goal of 60. 1 City Council, June 05, 2023; Agenda Item #5; SR #2304-1382, https://portal.laserfiche.com/Portal/DocView.aspx?id=66091&repo=r-704298fc 2 O'Grady Paving Construction Contract C24190072;
https://www.cityofpaloalto.org//files/assets/public/v/1/public-works/engineering-services/cip-contracts/ogrady- paving-construction-contract-for-fy2024-street-resurfacing-project-c24190072.pdf Item 8
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The scope of work also includes the replacement of approximately 2,417 linear feet of curbs and gutters, 3,371 square feet of driveways, 1,600 linear feet of valley gutters in Barron Park, and 10,149 square feet of sidewalks. The Cubberley Parking Lots will also be partially resurfaced and restriped as part of this contract, with 13,500 square feet of base repairs and 18,000 linear feet of striping refurbishment. Additionally, 37 new curb ramps will be installed, and 12 existing curb ramps will be retrofitted with truncated domes to conform to the Americans with Disabilities Act.
The streets being resurfaced in this contract are shown in Attachment A.
The City prioritized 6 of the 25 bridges inspected in 2022 for repair this fiscal year based on the findings of the condition assessment. The structural repairs included the contract are both corrective and preventive maintenance measures that will prolong the serviceable life of the structures and improve safety. Typical structural repairs include glulam girder repairs, decking and guardrails repair/replacement, and structural section loss repairs.
Bid Process
On December 26, 2023, an Invitation for Bids (IFB) for the Palo Alto FY 2024 Street Resurfacing Project was posted on OpenGov, City’s eProcurement system. The bidding period was 27 calendar days. The City received four (4) bids from qualified contractors on January 22, 2024, as listed on the attached Bid Summary (Attachment B).
Table 1: Summary of Bid Process
Bid Name/Number Palo Alto FY 2024 Street Resurfacing Project IFB #190072
Proposed Length of Project 120 calendar days
Number of Bid Packages
Downloaded by Builder’s Exchanges 2
Number of Bid Packages
Downloaded by Contractors 32
Total Days to Respond to Bid 27
Pre-Bid Meeting? No
Number of Bids Received: 4
Bid Price Range $5,432,037 - $7,678,093
Public Link to Solicitation https://procurement.opengov.com/portal/p alo-alto-ca/projects/73461
Bids ranged from $5,432,037 to $7,678,093 and from 5% to 49% above the engineer’s estimate of $5,161534. Staff reviewed the submitted bids and recommends the acceptance of the base bid and bid alternate number 1 submitted by O’Grady Paving, Inc. in the amount $5,432,037, and that O'Grady Paving, Inc. be declared the lowest responsible bidder. The construction contingency amount of $543,204, which equals approximately 10 percent of the contract value, is requested for related, additional, but unforeseen work which may develop during the project, implemented via City-approved Change Order.
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Staff reviewed information and similar projects performed by the lowest bidder, O'Grady Paving, Inc. and found them to be the lowest responsive and responsible bidder. Staff also checked with the Contractor's State License Board and confirmed the contractor has an active license on file.
FISCAL/RESOURCE IMPACT
Funding for this contract is available in the Fiscal Year 2024 Adopted Capital Improvement Program Street Maintenance (PE-86070), Sidewalk Repairs (PO-89003), Cubberley Repairs (CB- 17001), City Facility Parking Lot Maintenance (PE-09003), Storm Drain Rehab (SD-06101), and City Bridge Improvements (PE-20001) projects.
The funding allocation is as follows:
Table 2: Funding Allocation
CIP Project Funding
Source
Contract
Amount
Contingency
Amount
Total
Encumbrance
PE-86070 $4,356,023 $435,602 $4,791,625
PO-89003 $200,000 $20,000 $220,000
CB-17001 $226,297 $22,630 $248,927
PE-20001 $518,450 $51,845 $570,295
PE-09003 $101,267 $10,127 $111,394
SD-06101 $30,000 $3,000 $33,000
TOTAL $5,432,037 $543,204 $5,975,241
STAKEHOLDER ENGAGEMENT
All streets have been coordinated with the City’s Utilities Department and the Office of Transportation to minimize the cutting of newly resurfaced streets. Additionally, recognizing the importance of bicycle safety as a factor in selecting streets for the annual repaving project, staff reviews the proposed five-year paving plan streets annually with the Pedestrian and Bicycle Advisory Committee (PABAC), with an emphasis on the streets included in the first year of the plan. Extensive public outreach will be conducted before and during the construction phase to keep the community informed throughout the process, including flyers sent to adjacent residences and businesses, and notices posted online on Nextdoor and the City’s website.
A community meeting was held at the Barron Bark Elementary School’s Multipurpose Room on January 17, 2024 to discuss the proposed valley gutter installation on Barron Avenue from La Donna to Whitsell. A total of four residents attended the meeting. After the information and details had been discussed, attendees expressed support for the installation of valley gutters on Barron Avenue.
ENVIRONMENTAL REVIEW
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Street resurfacing projects are categorically exempt from the California Environmental Quality Act (CEQA) under Section 15301c of the CEQA Guidelines as repair, maintenance and/or minor alteration of the existing facilities and no further environmental review is necessary.
The bridge repairs are categorically exempt from California Environmental Quality Act (CEQA) under Section 15301(d) – Existing Facilities.
ATTACHMENTS
Attachment A: FY2024 Street Resurfacing Project Street List and Project Map Attachment B: Bid Summary
APPROVED BY:
Brad Eggleston, Director Public Works/City Engineer
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FY2024 STREET RESURFACING STREET LIST
STREET
1 Acacia Avenue
2 Barron Avenue
3 Cowper Street
4 Emerson Street
5 Emerson Street
6 Emerson Street
7 Emerson Street
8 Emerson Street
9 Fielding Drive
10 Fielding Drive
11 James Road
12 Lambert Avenue
13 Lambert Avenue
14 Lane 6 East
15 Leland Avenue
16 Morris Drive
FROM
El Camino Real
Whitsell Avenue
Churchill Avenue
Lytton Avenue
University Avenue
Hamilton Avenue
Forest Avenue
Homer Avenue
Fielding Drive
Moreno Avenue
El Camino Way
ElCamino Real
Ash Street
TO
Angle
La Donna Avenue
Coleridge Avenue
University Avenue
Hamilton Avenue
Forest Avenue
Homer Avenue
Channing Avenue
End
Fielding Cul‐de‐Sac
Wilkie Way
Ash Street
Park Boulevard
Emerson Street
Park Boulevard
Greer Road
High Street
Birch Street
Maddux Drive
17 Ortega Court
18 Park Boulevard
19 Park Boulevard
20 Ramona Street
21 Ramona Street
East Meadow Drive End
Leland Avenue
Park Avenue
Park Avenue
El Camino Real
Lytton Avenue
University Avenue
Everett Street
Lytton Avenue
22 San Antonio Avenue San Antonio Avenue Transport Street 23 Un Named Lane
24 University Avenue
25 University Avenue
26 University Avenue
27 University Avenue
28 University Avenue
Cedar Street
Middlefield Road
Fulton Street
Guinda Street
Seneca Street
Hale Street
Newell Road
Fulton Street
Guinda Street
Seneca Street
Hale Street
Chaucer Street
Cowper Street
End
29 Washington Avenue Waverley Street
30 Washington Avenue Cowper Street
31 Waverley Street
32 Cubberley Lot #1
33 Cubberley Lot #2
34 Cubberley Lot #3
35 Cubberley Lot #4
36 Cubberley Lot #5
Lytton Avenue University Avenue
37 Hopkins and Newell Tennis Courts Parking Lot
38 Foothills Nature Preserve Water Tower #1
39 Foothills Nature Preserve Water Tower #2
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CUBBERLY LOTS
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HOPKINS AND NEWELL TENNIS
COURT PARKING LOT
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WATER TOWER 2
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FY2024 Street Resurfacing Project
Bid Summary
UNIT COST TOTAL COST UNIT COST TOTAL COST UNIT COST TOTAL COST UNIT COST TOTAL COST UNIT COST TOTAL COST
BID ITEMS FOR STREET RESURFACING
1 AC Overlay: 10,256 TON $ 140.00 1,435,840.00$ $ 160.00 1,640,960.00$ $ 170.00 1,743,520.00$ $ 175.00 1,794,800.00$ $ 145.00 1,487,120.00$ 2 AC Base Repair: 388 TON $ 280.00 108,640.00$ $ 212.00 82,256.00$ $ 260.00 100,880.00$ $ 275.00 106,700.00$ $ 250.00 97,000.00$ 3 PCC Base Repairs: 16,366 SF $ 22.00 360,052.00$ $ 28.75 470,522.50$ $ 29.00 474,614.00$ $ 30.00 490,980.00$ $ 30.00 490,980.00$ 4 AC Milling : 604,340 SF $ 0.80 483,472.00$ $ 0.44 265,909.60$ $ 1.20 725,208.00$ $ 0.70 423,038.00$ $ 0.80 483,472.00$ 5 Crack Sealing: 55,500 LF $ 0.80 44,400.00$ $ 0.65 36,075.00$ $ 0.65 36,075.00$ $ 0.65 36,075.00$ $ 0.70 38,850.00$ 6 Interlayer Membrane: 13,000 LF $ 5.00 65,000.00$ $ 4.00 52,000.00$ $ 5.00 65,000.00$ $ 3.00 39,000.00$ $ 5.00 65,000.00$ 7 Reset Utility Box: 219 EA $ 500.00 109,500.00$ $ 1,200.00 262,800.00$ $ 200.00 43,800.00$ $ 900.00 197,100.00$ $ 300.00 65,700.00$ 8 Reset Manhole: 75 EA $ 800.00 60,000.00$ $ 1,500.00 112,500.00$ $ 250.00 18,750.00$ $ 1,200.00 90,000.00$ $ 300.00 22,500.00$ 9 Recycling of Inert Solid Materials: 15,643 TON $ 9.00 140,787.00$ $ 34.00 531,862.00$ $ 0.25 3,910.75$ $ 17.00 265,931.00$ $ 3.00 46,929.00$ 10 Inert recycling containing petromat: 15,643 TON $ 12.00 187,716.00$ $ 38.00 594,434.00$ $ 5.00 78,215.00$ $ 24.00 375,432.00$ $ 3.00 46,929.00$ 11 Reset Catch Basin: 3 EA $ 1,700.00 5,100.00$ $ 1,500.00 4,500.00$ $ 3,000.00 9,000.00$ $ 3,000.00 9,000.00$ $ 3,300.00 9,900.00$ 12 Type B curb with 3' exposed gutter pan: 137 LF $ 125.00 17,125.00$ $ 187.25 25,653.25$ $ 160.00 21,920.00$ $ 190.00 26,030.00$ $ 175.00 23,975.00$ 13 Type A vertical curb with 1' exposed gutter pan: 331 LF $ 105.00 34,755.00$ $ 121.10 40,084.10$ $ 120.00 39,720.00$ $ 165.00 54,615.00$ $ 132.00 43,692.00$ 14 Type A vertical curb with 1' burried gutter pan: 477 LF $ 105.00 50,085.00$ $ 141.15 67,328.55$ $ 120.00 57,240.00$ $ 175.00 83,475.00$ $ 132.00 62,964.00$ 15 Type A vertical curb with 2' exposed gutter pan: 367 LF $ 115.00 42,205.00$ $ 152.90 56,114.30$ $ 140.00 51,380.00$ $ 185.00 67,895.00$ $ 155.00 56,885.00$ 16 Type A vertical curb with 3' exposed gutter pan: 780 LF $ 125.00 97,500.00$ $ 178.80 139,464.00$ $ 160.00 124,800.00$ $ 195.00 152,100.00$ $ 175.00 136,500.00$ 17 Type A vertical curb with 6' exposed gutter pan: 311 LF $ 200.00 62,200.00$ $ 273.20 84,965.20$ $ 190.00 59,090.00$ $ 225.00 69,975.00$ $ 210.00 65,310.00$ 18 Type A vertical curb with 7' exposed gutter pan: 14 LF $ 220.00 3,080.00$ $ 286.25 4,007.50$ $ 210.00 2,940.00$ $ 300.00 4,200.00$ $ 230.00 3,220.00$ 19 Brickwork/Pavers Specialty Finishes: 93 SF $ 35.00 3,255.00$ $ 50.00 4,650.00$ $ 25.00 2,325.00$ $ 65.00 6,045.00$ $ 30.00 2,790.00$ 20 Concrete Sidewalk: 10,149 SF $ 20.00 202,980.00$ $ 19.60 198,920.40$ $ 20.00 202,980.00$ $ 20.00 202,980.00$ $ 22.00 223,278.00$ 21 Concrete Driveway: 3,371 SF $ 23.00 77,533.00$ $ 29.95 100,961.45$ $ 23.00 77,533.00$ $ 30.00 101,130.00$ $ 25.00 84,275.00$ 22 Valley gutter 3' wide: 1,565 LF $ 130.00 203,450.00$ $ 208.00 325,520.00$ $ 180.00 281,700.00$ $ 210.00 328,650.00$ $ 195.00 305,175.00$ 23 Valley gutter 4' wide 40 LF $ 150.00 6,000.00$ $ 240.45 9,618.00$ $ 180.00 7,200.00$ $ 220.00 8,800.00$ $ 200.00 8,000.00$ 24 Type A Curb Ramp: 29 EA $ 5,500.00 159,500.00$ $ 6,240.00 180,960.00$ $ 6,000.00 174,000.00$ $ 7,000.00 203,000.00$ $ 6,000.00 174,000.00$ 25 Type C Curb Ramp: 8 EA $ 6,000.00 48,000.00$ $ 6,735.00 53,880.00$ $ 6,000.00 48,000.00$ $ 7,500.00 60,000.00$ $ 6,000.00 48,000.00$ 26 Cast in place truncated domes: 144 SF $ 85.00 12,240.00$ $ 44.25 6,372.00$ $ 80.00 11,520.00$ $ 50.00 7,200.00$ $ 80.00 11,520.00$ 27 Thermoplastic Paving Legends: 384 EA $ 80.00 30,720.00$ $ 110.00 42,240.00$ $ 110.00 42,240.00$ $ 110.00 42,240.00$ $ 120.00 46,080.00$ 28 8" Ceramic Traffic Button: 9 EA $ 150.00 1,350.00$ $ 65.00 585.00$ $ 65.00 585.00$ $ 65.00 585.00$ $ 70.00 630.00$ 29 Green Thermoplastic: 882 SF $ 20.00 17,640.00$ $ 17.75 15,655.50$ $ 18.00 15,876.00$ $ 17.75 15,655.50$ $ 20.00 17,640.00$ 30 Thermo Striping, 4" White: 17,386 LF $ 3.50 60,851.00$ $ 2.50 43,465.00$ $ 2.50 43,465.00$ $ 2.50 43,465.00$ $ 2.75 47,811.50$ 31 Thermo Striping, 4" Blue: 793 LF $ 3.30 2,616.90$ $ 3.00 2,379.00$ $ 3.00 2,379.00$ $ 3.00 2,379.00$ $ 3.30 2,616.90$ 32 Thermo Striping, 4" Yellow: 615 LF $ 3.30 2,029.50$ $ 3.00 1,845.00$ $ 3.00 1,845.00$ $ 3.00 1,845.00$ $ 3.30 2,029.50$ 33 Thermo Striping, 12" White: 4,015 LF $ 10.00 40,150.00$ $ 10.50 42,157.50$ $ 11.00 44,165.00$ $ 10.50 42,157.50$ $ 11.00 44,165.00$ 34 Thermo Striping, 12" Yellow: 373 LF $ 10.00 3,730.00$ $ 10.50 3,916.50$ $ 11.00 4,103.00$ $ 10.50 3,916.50$ $ 11.00 4,103.00$ 35 Thermo Striping, 24" White: 104 LF $ 20.00 2,080.00$ $ 16.00 1,664.00$ $ 16.00 1,664.00$ $ 16.00 1,664.00$ $ 18.00 1,872.00$ 36 Blue Pavement Markers: 36 EA $ 30.00 1,080.00$ $ 35.00 1,260.00$ $ 35.00 1,260.00$ $ 35.00 1,260.00$ $ 38.00 1,368.00$ 37 Thermo Striping, Caltrans Detail 38B: 173 LF $ 10.00 1,730.00$ $ 2.50 432.50$ $ 3.00 519.00$ $ 2.50 432.50$ $ 3.00 519.00$ 38 Thermo Striping, Caltrans Detail 22: 3,705 LF $ 10.00 37,050.00$ $ 3.00 11,115.00$ $ 3.00 11,115.00$ $ 3.00 11,115.00$ $ 3.30 12,226.50$ 39 Thermo Striping, Caltrans Detail 9: 289 LF $ 10.00 2,890.00$ $ 1.15 332.35$ $ 1.00 289.00$ $ 1.15 332.35$ $ 1.30 375.70$ 40 Thermo Striping, Caltrans Detail 21: 804 LF $ 3.00 2,412.00$ $ 2.75 2,211.00$ $ 3.00 2,412.00$ $ 2.75 2,211.00$ $ 3.00 2,412.00$ 41 Thermo Striping, Caltrans Detail 39/39A: 6,138 LF $ 5.00 30,690.00$ $ 2.00 12,276.00$ $ 2.00 12,276.00$ $ 2.00 12,276.00$ $ 2.20 13,503.60$ 42 Thermo Striping, Caltrans Detail 27B: 3,453 LF $ 4.00 13,812.00$ $ 1.30 4,488.90$ $ 1.30 4,488.90$ $ 1.30 4,488.90$ $ 1.50 5,179.50$ 43 Thermo Striping, Caltrans Detail 2: 1,767 SF $ 7.00 12,369.00$ $ 1.15 2,032.05$ $ 1.00 1,767.00$ $ 1.15 2,032.05$ $ 1.30 2,297.10$ 44 Thermo Striping, Yellow Curb: 34 LF $ 18.00 612.00$ $ 6.00 204.00$ $ 6.00 204.00$ $ 6.00 204.00$ $ 7.00 238.00$ 45 Thermo Striping, Red Curb: 112 LF $ 18.00 2,016.00$ $ 6.00 672.00$ $ 6.00 672.00$ $ 6.00 672.00$ $ 7.00 784.00$ 46 Thermo Striping, Blue Curb: 13 LF $ 18.00 234.00$ $ 6.00 78.00$ $ 6.00 78.00$ $ 6.00 78.00$ $ 7.00 91.00$ 47 Thermo Striping, Chevron: 6 EA $ 330.00 1,980.00$ $ 300.00 1,800.00$ $ 300.00 1,800.00$ $ 300.00 1,800.00$ $ 330.00 1,980.00$ 48 Traffic loops: 12 EA $ 2,000.00 24,000.00$ $ 445.00 5,340.00$ $ 500.00 6,000.00$ $ 750.00 9,000.00$ $ 850.00 10,200.00$ 49 Traffic Control: 1 LS $ 260,013.00 260,013.00$ $ 226,630.00 226,630.00$ $ 465,000.00 465,000.00$ $ 464,800.00 464,800.00$ $ 260,000.00 260,000.00$ 50 Notices: 1 LS $ 20,007.00 20,007.00$ $ 8,200.00 8,200.00$ $ 20,000.00 20,000.00$ $ 22,800.00 22,800.00$ $ 20,000.00 20,000.00$ 51 Utility Tie Out Drawings: 1 LS $ 4,992.00 4,992.00$ $ 4,555.00 4,555.00$ $ 10,000.00 10,000.00$ $ 24,400.00 24,400.00$ $ 5,000.00 5,000.00$ 52 Tree Trimming: 53 HRS $ 375.00 19,875.00$ $ 460.00 24,380.00$ $ 450.00 23,850.00$ $ 460.00 24,380.00$ $ 500.00 26,500.00$ 53 Allowance for concrete and waterproofing work at 201 Hamilton Avenue: 1L S $ 200,000.00 200,000.00$ $ 200,000.00 200,000.00$ $ 200,000.00 200,000.00$ $ 200,000.00 200,000.00$ $ 200,000.00 200,000.00$ 54 Appendix G: Fielding Drive X-Walk Decorative Treatment 1 LS $ 28,000.00 28,000.00$ $ 3,940.00 3,940.00$ $ 25,000.00 25,000.00$ $ 26,550.00 26,550.00$ $ 30,000.00 30,000.00$ 55 Misc. Transportation Improvements: 1 LS $ 50,000.00 50,000.00$ $ 50,000.00 50,000.00$ $ 50,000.00 50,000.00$ $ 50,000.00 50,000.00$ $ 50,000.00 50,000.00$
BID ITEMS FOR BRIDGE REPAIRS (APPENDIX B)
56 Mobilization 1 LS $ 25,000.00 25,000.00$ $ 441,320.00 441,320.00$ $ 60,000.00 60,000.00$ $ 610,000.00 610,000.00$ $ 100,000.00 100,000.00$ 57 Traffic Control - For Brid ge No. 1.06 and 1.23 1 LS $ 15,000.00 15,000.00$ $ 15,000.00 15,000.00$ $ 47,000.00 47,000.00$ $ 18,000.00 18,000.00$ $ 45,000.00 45,000.00$ 58 Traffic Control - For Brid ge No. 1.32 1 LS $ 20,000.00 20,000.00$ $ 15,000.00 15,000.00$ $ 10,000.00 10,000.00$ $ 18,000.00 18,000.00$ $ 9,000.00 9,000.00$ 59 Public Notification 1 LS $ 5,000.00 5,000.00$ $ 770.00 770.00$ $ 5,600.00 5,600.00$ $ 15,100.00 15,100.00$ $ 6,000.00 6,000.00$ 60 Repair Glulam Girders - For Brid ge No. 1.32 275 LF $ 85.00 23,375.00$ $ 206.00 56,650.00$ $ 80.00 22,000.00$ $ 80.00 22,000.00$ $ 75.00 20,625.00$ 61 Paint Glulam Girders - For Brid ge No. 1.32 880 SF $ 12.00 10,560.00$ $ 19.00 16,720.00$ $ 20.00 17,600.00$ $ 198.00 174,240.00$ $ 20.00 17,600.00$ 62 Remove and Reset Existin g Steel Railing - For Bridge No. 1.32 1 LS $ 2,000.00 2,000.00$ $ 10,000.00 10,000.00$ $ 14,000.00 14,000.00$ $ 38,610.00 38,610.00$ $ 13,000.00 13,000.00$ 63 Replace Existin g Deck Planks 130 EA $ 150.00 19,500.00$ $ 500.00 65,000.00$ $ 225.00 29,250.00$ $ 500.00 65,000.00$ $ 220.00 28,600.00$ 64 Replace Withdrawn Deck Plank Anchors 1 LS $ 1,000.00 1,000.00$ $ 14,680.00 14,680.00$ $ 6,200.00 6,200.00$ $ 28,000.00 28,000.00$ $ 6,000.00 6,000.00$ 65 Reattach Loose Toe Plates 3 EA $ 150.00 450.00$ $ 870.00 2,610.00$ $ 230.00 690.00$ $ 75.00 225.00$ $ 220.00 660.00$ 66 Sand and Stain Top of Deckin g 620 SF $ 10.00 6,200.00$ $ 22.00 13,640.00$ $ 22.00 13,640.00$ $ 52.00 32,240.00$ $ 22.00 13,640.00$ 67 Patch Concrete Spall 3 EA $ 750.00 2,250.00$ $ 2,228.00 6,684.00$ $ 570.00 1,710.00$ $ 3,000.00 9,000.00$ $ 600.00 1,800.00$ 68 Replace Timber Handrail Member 215 LF $ 30.00 6,450.00$ $ 56.00 12,040.00$ $ 230.00 49,450.00$ $ 280.00 60,200.00$ $ 220.00 47,300.00$ 69 Replace Timber Horizontal Deck Brace 27 LF $ 50.00 1,350.00$ $ 63.00 1,701.00$ $ 112.00 3,024.00$ $ 45.00 1,215.00$ $ 110.00 2,970.00$ 70 Remove Abandoned Conduit 108 LF $ 5.00 540.00$ $ 7.00 756.00$ $ 56.00 6,048.00$ $ 15.00 1,620.00$ $ 55.00 5,940.00$ 71 Replace Wire Mesh Safet y Railing 1330 SF $ 7.50 9,975.00$ $ 10.00 13,300.00$ $ 17.00 22,610.00$ $ 18.00 23,940.00$ $ 17.00 22,610.00$ 72 Remove Abandoned Electrical Wires 1 LS $ 500.00 500.00$ $ 750.00 750.00$ $ 3,400.00 3,400.00$ $ 1,650.00 1,650.00$ $ 3,500.00 3,500.00$ 73 Erosion Repair (Fill and Compact Soil) 1L S $ 500.00 500.00$ $ 1,068.00 1,068.00$ $ 30,000.00 30,000.00$ $ 4,400.00 4,400.00$ $ 30,000.00 30,000.00$ 74 Install Anti-Slip Fiberglass Deck Strips 32 EA $ 80.00 2,560.00$ $ 334.00 10,688.00$ $ 230.00 7,360.00$ $ 275.00 8,800.00$ $ 220.00 7,040.00$ 5,047,554.40$ 6,764,549.15 $ 5,803,955.65 $ 7,349,130.30 $ 5,294,871.30 $ 5304901.3
10,030.00$
UNIT COST TOTAL COST UNIT COST TOTAL COST UNIT COST TOTAL COST UNIT COST TOTAL COST UNIT COST TOTAL COST
BID ITEMS FOR BRIDGE REPAIRS (APPENDIX B)
1 Add Alternate: Traffic Control - For Bridge No. 1.02, 1.05, an d 1.22 1 LS $ 15,000.00 15,000.00$ $ 10,500.00 10,500.00$ $ 13,500.00 13,500.00$ $ 8,800.00 8,800.00$ $ 15,000.00 15,000.00$ 2 Add Alternate: Replace Timber Railing with Midwest Guardrail System 87 LF $ 225.00 19,575.00$ $ 245.00 21,315.00$ $ 330.00 28,710.00$ $ 389.00 33,843.00$ $ 330.00 28,710.00$ 3 Add Alternate: Clean and Pain t Existing Steel Railing 1 LS $ 5,000.00 5,000.00$ $ 79,000.00 79,000.00$ $ 13,500.00 13,500.00$ $ 37,250.00 37,250.00$ $ 13,000.00 13,000.00$ 4 Add Alternate: Modify Existing Timber Railing 34 LF $ 150.00 5,100.00$ $ 60.00 2,040.00$ $ 225.00 7,650.00$ $ 405.00 13,770.00$ $ 220.00 7,480.00$ 5 Add Alternate: Replace Exis ting Utility Support Bracket 2 EA $ 750.00 1,500.00$ $ 2,022.00 4,044.00$ $ 560.00 1,120.00$ $ 2,400.00 4,800.00$ $ 600.00 1,200.00$ 6 Add Alternate: Repair Glulam Girders - For Bridge No. 1.02 681 L F $ 85.00 57,885.00$ $ 142.00 96,702.00$ $ 80.00 54,480.00$ $ 80.00 54,480.00$ $ 75.00 51,075.00$ 7 Add Alternate: Paint Glulam Girders - For Bridge No. 1.02 660 SF $ 12.00 7,920.00$ $ 11.00 7,260.00$ $ 20.00 13,200.00$ $ 232.00 153,120.00$ $ 20.00 13,200.00$ 8 Add Alternate: Remove and Reset Existing Steel Railing - For Bridge No. 1.02 1L S $ 2,000.00 2,000.00$ $ 7,600.00 7,600.00$ $ 8,000.00 8,000.00$ $ 22,900.00 22,900.00$ $ 7,500.00 7,500.00$ 113,980.00$ 228,461.00 $ 140,160.00 $ 328,963.00 $ 137,165.00 $ 5,161,534.40$ 6,993,010.15 $ 5,944,115.65 $ 7,678,093.30 $ 5,432,036.30 $ 35% 15% 49% 5%
over over over over
TOTAL BASE BID + ADD ALT 1
15%
over
DeSilvaBay Cities
Base Bid Total (Items 001 through 074)
BID ITEM DESCRIPTION APPROX. QTY UNIT ENGINEER'S ESTIMATE 34%
over
ALT 1 Bid Total (Items 001 through 008)
100% 23%
over over
ALT 1 BID
ITEM DESCRIPTION APPROX. QTY UNIT ENGINEER'S ESTIMATE
189%
over
O'Grady Paving
5%
over
20%
over
Ghilotti
46%
over
Item 8
Attachment B - Bid
Summary
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City Council
Staff Report
From: City Manager
Report Type: CONSENT CALENDAR
Lead Department: Community Services
Meeting Date: March 11, 2024
Report #:2312-2454
TITLE
Approval of Professional Services Contract Number C24190133 With Anne Rosenthal Fine Art Conservation Services in an Amount Not-to-Exceed $118,624 for preservation of frescoes by artist Victor Arnautoff created in 1932 at the Roth Building (the former Palo Alto Medical Clinic) at 300 Homer Avenue for a period of 18 months; CEQA status - categorically exempt.
RECOMMENDATION
Staff recommends that the City Council approve and authorize the City Manager or designee to execute Contract Number C24190133 (Attachment A) with Anne Rosenthal Fine Art Conservation to provide restoration of historic frescoes by artist Victor Arnautoff at the main entry to the Roth Building for a term of 18 months and a total amount not-to-exceed $118,624, including $98,853 for basic services and $19,771 for additional services.
EXECUTIVE SUMMARY
Approval of the contract with Anne Rosenthal Fine Art Conservation Services I the amount of $118.624 will ensure the proper preservation and restoration of the historic frescoes by artist Victor Arnautoff at the main entry of the Roth Building. A facility purchased by the City in 2000 and recently leased for a 40-year term to the Palo Alto Museum, the preservation and restoration of this public art is an integral part of this historic facility. This work coincides with the rehabilitation of the full facility by the Palo Alto Museum which began the construction phase in 2023.
BACKGROUND
The Roth Building (formally Palo Alto Medical Clinic) at 300 Homer Avenue was designed by architect Birge Clark and built in 1932 in the Spanish Eclectic Style of concrete with a terra cotta roof and exterior murals adorning its main entrance/loggia area. In 2010 the building was listed Item 9
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on the National Register of Historic Places 1 as a property of high architectural and artistic value.
It is also listed on the California Register of Historical Resources as a Category 2 Building (a building of major regional importance) on the City of Palo Alto Historic Inventory. The murals were painted using the fresco technique by artist Victor Arnautoff. The frescoes, titled Modern and Ancient Medicine, were commissioned by Dr. Russell Lee in 1931 and completed by the artist in 1932. The frescoes were Arnautoff’s first private commission in the United States upon his return from Mexico where he had worked with Diego Rivera painting frescoes at the Palace of Cortés in Cuernavaca 2, Mexico. The Roth Building frescoes consist of four vertical color panels, nine smaller black and white (grisaille) panels, and four sepia medallions illustrating the contrast between modern medicine and historic medical practices. The mural composition and subject matter emphasized the advancement of modern medicine and technology for the newly opened medical facility and depicted its focus on a broad range of medical care that was available at the Palo Alto Clinic, including pediatrics, internal medicine, surgery, and x-ray technology.
Preservation and protection of the frescoes to date
The City of Palo Alto purchased the historic Roth Building in 2000. In 2016, the City’s Public Art Commission formally accessioned3 a series of historic frescoes by artist Victor Arnautoff, enabling the Public Art Program staff to provide needed maintenance, protection and conservation of the artworks.
In 2017, the Public Art Program staff engaged Anne Rosenthal, a fine art conservator and the leading expert on Diego Rivera and Victor Arnautoff frescoes, to prepare a condition report and propose a conservation treatment of the frescoes. Initial evaluation of the murals determined the need for a further examination and in-depth analysis due to extensive deterioration of the fresco panels, many of which had been greatly altered by unknown restoration treatments and coatings. In 2019, the service provider conducted a series of further onsite examinations including off-site lab tests analyzing previous layers and materials used during prior restorations and confirmed extraordinary complications and unresolved questions surrounding previous restorations of the frescoes. Furthermore, without archival images of the original frescoes the intended appearance of the murals was speculative. Based on these findings, the conservator 1 Approval of the Nomination of the Category 2 Roth Building to the National Register of Historic Places and transmittal of a letter of support to the State Historical Resources Commission https://www.cityofpaloalto.org/files/assets/public/v/1/agendas-minutes-reports/reports/city-manager-reports- cmrs/year-archive/2010/205.pdf
2 Palace of Cortés in Cuernavaca, Mexico
http://www.xochitl.net/hum2461/slidelectures/cuernavaca/riveracuernmural.htm 3 Public Art Commission, July 15, 2015, Agenda Item #6
https://www.cityofpaloalto.org/files/assets/public/v/1/community-services/public-art-commission/september- 15_staff-report_item-x_acceptance-of-artwork-into-city-collection.ed.pdf Item 9
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recommended additional research into the archival images before submitting a conservation plan and precise budget.
Between 2019 – 2023, the Public Art Program staff conducted extensive research and was successful in obtaining archival photographs of the frescoes taken in the 1930s and later decades, as well as previously unknown information about past restorations performed in the 1950s, 1960s, and in 1980. These discoveries contributed to the greater understanding of the events that are pertinent to the mural history, and most importantly their original condition. Archival images of the original mural constituted a baseline of condition to which all other known images can be compared and will serve as the model for any reconstruction of losses that might be necessary in the future. This enabled the art conservator to provide a comprehensive study and restoration proposal with a detailed project budget which was submitted by Anne Rosenthal to the Public Art Program staff in 2023.
ANALYSIS
In December 2022, Council approved a 40-year lease and license agreement with the Palo Alto Museum (PAM)4 for the use of the Roth Building. The Tenant Work Letter was approved by City Council on April 17, 2023, setting forth the terms and conditions for the rehabilitation and capital improvements to the site, including project funding 5. Prior to the commencement of the demolition phase of the rehabilitation project, the Public Art staff worked with Atthowe Fine Art Services to design and install physical protective systems to safeguard the frescoes during construction.
To ensure the restoration of the frescoes would coincide with the rehabilitation of the building, Palo Alto Museum (PAM) in partnership with the City applied for a grant from Santa Clara County’s one-time Historic Grant Program for the protection and preservation of the Arnautoff frescoes6. Delayed by the COVID-19 pandemic, the funding agreement for the Historic Grant Program (HGP) was executed on January 27, 2022. The grant is a reimbursement-based matching award with a three-year term ending in January 2025.
Procurement Process
4City Council, December 12, 2022, Agenda Item #6, SR #15017 https://www.cityofpaloalto.org/files/assets/public/v/5/agendas-minutes-reports/agendas-minutes/city-council- agendas-minutes/2022/20221212/20221212pccsm-amended-linked.pdf 5 City Council, April 17, 2023, Agenda Item #13, SR #2303-1108 https://cityofpaloalto.primegov.com/Portal/Meeting?meetingTemplateId=1115 6 City Council, June 15, 2020, Informational Report Regarding the Roth Building, SR #11287; https://www.cityofpaloalto.org/files/assets/public/v/1/agendas-minutes-reports/reports/city-manager-reports- cmrs/year-archive/2020/id-11287.pdf?t=66157.57
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An exemption to competitive solicitation was approved pursuant to Palo Alto Municipal Code section 2.30.360(b)(3) “Special conditions attached to a grant that requires the use of particular services”. Fine art conservator Anne Rosenthal is listed in the County of Santa Clara Historic Grant Program Applications as the lead project conservator. Rosenthal is an accomplished leading expert on frescoes by Diego Rivera and Victor Arnautoff.
The contract recommended for approval includes two main phases, 1) Full restoration treatment of the upper register of the artwork comprised of four multi-color fresco panels, and a narrow grisaille panel above the main entry door. 2) Treatment Testing for the lower register of the Grisaille Panels and Medallions.
In addition, due to the construction environment, the service provider will be asked to review and consult staff and construction team on any construction documentation or any construction activities relevant to the welfare of the frescoes and will regularly evaluate vibration sensor reports.
As part of the scope of this contract, the service provider will provide a detailed set of recommendations for the full restoration of the lower grisaille panels and medallions will be provided by the art conservator separately once the scope of services for the current contract is fully completed. The Public Art Program staff plans to seek additional grant opportunities to fund the remainder of the project.
FISCAL/RESOURCE IMPACT
The awarded grant stipulated the following conditions as the funding sources for the fresco restoration project: the City of Palo Alto as the grant applicant to be awarded the requested amount of $105,150; and the Palo Alto Museum as the community partner to be responsible for providing a matching amount of $110,150. In 2022, the Public Art Program staff resumed its work with Anne Rosenthal who provided staff with the fresco restoration project proposal and budget of $118,624. Under the current proposal, the conservator will carry out a full restoration of the four large color frescoes, and complete in-depth cleaning and treatment examinations of the lower panels and medallions.
The City will fund the frescoes project out of the Roth Building CIP PF-23001. In accordance with the Historic Grant Program (HGP), all expenses up to $105,150 that are eligible for reimbursement will be reimbursed to the City prior to January 2025. Per the grant agreement, the remaining difference of $13,474 will be reimbursed to the City by the Palo Alto Museum.
STAKEHOLDER ENGAGEMENT
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to ensure the preservation of the artworks. Since 2023, prior to the beginning of the rehabilitation of the building, the Public Art Program staff has been meeting with the representatives of the museum and construction team on a weekly basis to track and discuss the building rehabilitation progress and address any frescoes protection needs.
TIMELINE
The on-site fresco restoration work is projected to take place over a period of up to three months in the summer – fall of 2024 by Anne Rosenthal as the lead art conservator and her team of conservation experts.
ENVIRONMENTAL REVIEW
The Roth Building rehabilitation project is Categorically Exempt from CEQA review pursuant to CEQA guidelines section 15331, Historical Resource Restoration/Rehabilitation, as a project limited to maintenance, repair, and rehabilitation in accordance with the secretary of interior standards for historic preservation.
ATTACHMENTS
Attachment A: Anne Rosenthal Fine Art Conservation Services Contract C24190133 APPROVED BY:
Kristen O'Kane, Community Services Director
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Professional Services
Rev. Dec.15, 2020
CITY OF PALO ALTO CONTRACT NO. C24190133
AGREEMENT FOR PROFESSIONAL SERVICES
BETWEEN THE CITY OF PALO ALTO AND ANNE ROSENTHAL
This Agreement for Professional Services (this “Agreement”) is entered into as of the 10thday of January, 2024 (the “Effective Date”), by and between the CITY OF PALO ALTO, a California chartered municipal corporation (“CITY”), and ANNE ROSENTHAL, a California LLC, located at P.O. Box 150384, San Rafael, CA 94915 (“CONSULTANT”).
The following recitals are a substantive portion of this Agreement and are fully incorporated herein by this reference:
RECITALS
A. CITY intends to restore historic frescoes (the “Project”) and desires to engage a consultant to Complete Restoration of Upper Register of Frescoes, complete further testing of the Lower Register of Frescoes and Medallions, and based on the findings provide a detailed proposal for restoration treatment of Lower Register of Frescoes and Medallions in connection with the Project (the “Services”, as detailed more fully in Exhibit A).
B. CONSULTANT represents that it, its employees and subconsultants, if any, possess the necessary professional expertise, qualifications, and capability, and all required licenses and/or certifications to provide the Services.
C. CITY, in reliance on these representations , desires to engage CONSULTANT to provide the Services as more fully described in Exhibit A, entitled “SCOPE OF SERVICES”.
NOW, THEREFORE, in consideration of the recitals, covenants, terms, and conditions, in this Agreement, the parties agree as follows:
SECTION 1. SCOPE OF SERVICES. CONSULTANT shall perform the Services described in Exhibit A in accordance with the terms and conditions contained in this Agreement. The performance of all Services shall be to the reasonable satisfaction of CITY.
Optional On-Call Provision (This provision only applies if checked and only applies to on-call agreements.)
CITY may elect to, but is not required to, authorize on- call Services up to the maximu m compensation amount set forth in Section 4 (Not to Exceed Compensation).
CONSULTANT shall provide on- call Services only by advanced, written authorization from CITY as detailed in this Section. On -call Services, if any, s hall be authorized by CITY, as needed, with a Task Order assigned and approved by CITY’s Project Manager, DocuSign Envelope ID: F8BA04F6-4FD2-40DC-9D72-2D94F1B60E59 Item 9
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as identified in Section 13 (Project Management). Each Task Order shall be in substantially the same form as Exhibit A -1 entitled “PROFESSIONAL SERVICES TASK ORDER”.
Each Task Order shall contain a specific scope of s ervices, schedule of performance and maximum compensation amount, in accordance with the provisions of this Agreement.
Compensation for on-call Services shall be specified by CITY in the Task Order, based on whichever is lowest: the compensation structure set forth in Exhibit C, the hourly rates set forth in Exhibit C-1, or a negotiated lump sum.
To accept a Task Order, CONSULTANT shall sign the Task Order and return it to CITY’s Project Manager within the time specified by the Project Manager, and upon authorization by CITY (defined as counter-signature by the CITY Project Manager), the fully executed Task Order shall become part of this Agreement. The cumulative total compensation due to CONSULTANT for al l Task Orders issued under this Agreement shall not exceed the amount of compensation set forth in Section 4. CONSULTANT shall only be compensated for on -call Services performed under an authorized Task Order and only up to the maximum compensation amount set forth in Section 4. Performance of and payment for any on-call Services are subject to all requirements and restrictions in this Agreement.
SECTION 2. TERM.
The term of this Agreement shall be from the date of its full execution through December 31, 2024, unless terminated earlier pursuant to Section 19 (Termination) of this Agreement.
SECTION 3. SCHEDULE OF PERFORMANCE. Time is of the essence in the performance of Services under this Agreement. CONSULTANT shall complete the Services within the term of this Agreement and in accordance with the schedule set forth in Exhibit B, entitled “SCHEDULE OF PERFORMANCE”. Any Services for which times for performance are not specified in this Agreement shall be commenced and completed by CONSULTANT in a reasonably p rompt and timely manner based upon the circumstances and direction communicated to the CONSULTANT.
CITY’s agreement to extend the term or the schedule for performance shall not preclude recovery of damages for delay if the extension is required due to the fault of CONSULTANT.
SECTION 4. NOT TO EXCEED COMPENSATION. The compensation to be paid to CONSULTANT for performance of the Services shall be based on the compensation structure detailed in Exhibit C, entitled “COMPENSATION,” including any reimbursable expenses specified therein, and the maximum total compensation shall not exceed Ninety-Eight Thousand, Eight Hundred Fifty-Three Dollars 98,853.00 The schedule of rates, if applicable, is set out in Exhibit C-1, entitled “SCHEDULE OF RATES.” Any work performed or expenses incurred for which payment would result in a total exceeding the maximum compensation set forth in this Section 4 shall be at no cost to the CITY.
Optional Additional Services Provision (This provision applies only if checked and a not-to-exceed compensation amount for Additional Services is allocated below under this Section 4.)
In addition to the not-to-exceed compensation specified above, CITY has set aside the not- to-exceed compensation amount of Nineteen Thousand, Seven Hundred Seventy -One Dollars ($19,771.00) for the performance of Additional Services (as defined below). The DocuSign Envelope ID: F8BA04F6-4FD2-40DC-9D72-2D94F1B60E59 Item 9
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total compensation for performance of the Services, Additional Services and any reimbursable expenses specified in Exhibit C, shall not exceed One Hundred Eighteen Thousand, Six Hundred Twenty-Four Dollars ($118,624.00), as detailed in Exhibit C.
“Additional Services” means any work that is determined by CITY to be necessary for the proper completion of the Project, but which is not included within the Scope of Services described at Exhibit A. CITY may elect to, but is not required to, authorize Additional Services up to the maximum amount of compensation set forth for Additional S ervices in this Section 4. CONSULTANT shall provide Additional Services only by advanced, written authorization from CITY as detailed in this Section . Additional Services, if any, shall be authorized by CITY with a Task Order assigned and authorized by CITY’s Project Manager, as identified in Section 13 (Project Management). Each Task Order shall be in substantially the same form as Exhibit A-1, entitled “PROFESSIONAL SERVICES TASK ORDER”. Each Task Order shall contain a specific scope of services, schedule of performance and maximum compensation amount, in accordance with the provisions of this Agreement. Compensation for Additional Services shall be specified by CITY in the Task Order, based on whichever is lowest: the compensation structure set forth in Exhibit C, the hourly rates set forth in Exhibit C-1, or a negotiated lump sum.
To accept a Task Order, CONSULTANT shall sign the Task Order and return it to CITY’s Project Manager within the time specified by the Project Manager, and upon authorization by CITY (defined as counter-signature by the CITY Project Manager), the fully exec uted Task Order shall become part of this Agreement. The cumulative total compensation to CONSULTANT for all Task Orders authorized under this Agreement shall not exceed the amount of compensation set forth for Additional Services in this Section 4 .
CONSULTANT shall only be compensated for Additional Services performed under an authorized Task Order and only up to the maximum amount of compensation set forth for Additional Services in this Section 4. Performance of and payment for any Additional Services are subject to all requirements and restrictions in this Agreement.
SECTION 5. INVOICES. In order to request payment, CONSULTANT shall submit invoices to the CITY describing the Services performed and the applicable charges (including, if applicable, an identification of personnel who performed the S ervices, hours worked, hourly rates, and reimbursable expenses), based upon Exhibit C or, as applicable, CONSULTANT’s schedule of rates set forth in Exhibit C-1. If applicable, the invoice shall also describe the percentage of completion of each task. The information in CONSULTANT’s invoices shall b e subject to verification by CITY. CONSULTANT shall send all invoices to CITY’s Project Manager at the address specified in Section 13 (Project Management) below. CITY will generally process and pay invoices within thirty (30) days of receipt of an acceptable invoice.
SECTION 6. QUALIFICATIONS/STANDARD OF CARE. All Services shall be performed by CONSULTANT or under CONSULTANT’s supervision. CONSULTANT represents that it , its employees and subcontractors, if any, possess the professional and technical personnel necessary to perform the Services required by this Agreement and that the personnel have sufficient skill and experience to perform the Services assigned to them. CONSULTANT represents that it, its employees and subcontractors, if any, have and shall maintain during the term of this Agreement all licenses, permits, qualifications, insurance and approvals of whatever nature that are legally required to perform the Services. All Services to be furnished by CONSULTANT DocuSign Envelope ID: F8BA04F6-4FD2-40DC-9D72-2D94F1B60E59 Item 9
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Conservation Services
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under this A greement shall meet the professional standard and quality that prevail among professionals in the same discipline and of similar knowledge and skill engaged in related work throughout California under the same or similar circumstances.
SECTION 7. COMPLIANCE WITH LAWS . CONSULTANT shall keep itself informed of and in compliance with all federal, state and local laws, ordinances, regulations, and orders that may affect in any manner the Project or the performance of the Services or those engaged to perform Services under this Agreement, as amended from time to time . CONSULTANT shall procure all permits and licenses, pay all charges and fees, and give all notices required by law in the performance of the Services.
SECTION 8. ERRORS/OMISSIONS. CONSULTANT is solely resp onsible for costs, including, but not limited to, increases in the cost of Services , arising from or caused by CONSULTANT’s errors and omissions, including, but not limited to, the costs of corrections such errors and omissions, any change order markup costs, or costs arising from delay caused by the errors and omissions or unreasonable delay in correcting the errors and omissions.
SECTION 9. COST ESTIMATES. If this Agreement pertains to the design of a public works project, CONSULTANT shall su bmit estimates of probable construction costs at each phase of design submittal. If the total estimated construction cost at any submittal exceeds the CITY’s stated construction budget by ten percent (10%) or more , CONSULTANT shall make recommendations to CITY for aligning the P roject design with the budget, incorporate CITY approved recommendations, and revise the design to meet the Project budget, at no additional cost to CITY.
SECTION 10. INDEPENDENT CONTRACTOR. CONSULTANT acknowledges and agrees that CONSULTANT and any agent or employee of CONSULTANT will act as and shall be deemed at all times to be an independent contractor and shall be wholly responsible for the manner in which CONSULTANT performs the S ervices requested by CITY under this Agreement.
CONSULTANT and any agent or employee of CONSULTANT will not have employee status with CITY, nor be entitled to participate in any plans, arrangements, or distributions by CITY pertaining to or in connection with any retirement, health or other benefits that CITY may offer its employees. CONSULTANT wi ll be responsible for all obligations and payments, whether imposed by federal, state or local law, including, but not limited to, FICA, income tax withholdings, workers’ compensation, unemployment compensation, insurance, and other similar responsibilities re lated to CONSULTANT’s performance of the S ervices, or any agent or employee of CONSULTANT providing same. Nothing in this Agreement shall be construed as creating an employment or agency relationship between CITY and CONSULTANT or any agent or employee of CONSULTANT. Any terms in this Agreement referring to direction from CITY shall be construed as providing for direction as to policy and the result of CONSULTANT ’s provision of the Services only, and not as to the means by which such a result is obtained.
SECTION 11. ASSIGNMENT . The parties agree that the expertise and experience of CONSULTANT are material considerations for this Agreement. CONSULTANT shall not assign or transfer any interest in this Agreement nor the performance of any of CONSULTANT’s obligations hereunder without the prior written approval of the C ity Manager. Any purported assignment made without the prior written approval of the City Manager will be void and without effect. Subject to the foregoing, the covenants, terms, conditions and provisions of this Agreement DocuSign Envelope ID: F8BA04F6-4FD2-40DC-9D72-2D94F1B60E59 Item 9
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will apply to, and will bind, the heirs, successors, executors, administrators and assignees of the parties.
SECTION 12. SUBCONTRACTING.
Option A: No Subcontractor: CONSULTANT shall not subcontract any portion of the Services to be performed under this Agreement without the prior written authorization of the City Manager or designee. In the event CONSULTANT does subcontract any portion of the work to be performed under this Agreement, CONSULTANT shall be fully responsible for all acts and omissions of subcontractors.
Option B: Subcontracts Authorized: Notwithstanding Section 11 (Assignment) above, CITY agrees that subcontractors may be used to complete the Services. The subcon tractors authorized by CITY to perform work on this Project are:
CONSULTANT shall be responsible for directing the work of any subcontractors and for any compensation due to subcontractors . CITY assumes no responsibility whatsoever concerning compensation of subcontractors. CONSULTANT shall be fully responsible to CITY for all acts and omissions of subcontractors . CONSULTANT shall change or add subcontractors only with the prior written approval of the City Manager or designee.
SECTION 13. PROJECT MANAGEMENT. CONSULTANT will assign Anne Rosentha l, [email protected], (415) 883-8050 as the CONSULTANT’s Project Manager to have supervisory responsibility for the performance, progress, and execution of the Services and represent CONSULTANT during the day- to-day performance of the Services. If circumstances cause the substitution of the CONSULTANT’s Project Manager or any other of CONSULTANT’s key personnel for any reason, the appointment of a substitute Project Manager and the assignment of any key new or replacement personnel will be subject to the prior written approval of the CITY’s Project Manager. CONSULTANT, at CITY’s request, shall promptly remove CONSULTANT personnel who CITY finds do not perform the Services in an acceptable manner, are uncooperative, or present a threat to the adequate or timely completion of the Services or a threat to the safety of persons or property.
CITY’s Project Manager is Nadya Chuprina, Community Services Department, Arts & Sciences Division, , 1313 Newell Road, Palo Alto, CA,: 94303, Telephone: (650) 329-2227. CITY’s Project Manager will be CONSULTANT’s point of contact with respect to performance, progress and execution of the Services. CITY may designate an alternate Project Manager from time to time.
SECTION 1 4. OWNERSHIP OF MATERIALS . A ll work product, including without limitation, all writings, drawings, studies, sketches, photographs, plans, reports, specifications, computations, models, recordings, data, documents, and other materials and copyright interests developed under this Agreement, in any form or media, shall be and remain the exclusive property of CITY without restriction or limitation upon their use. CONSULTANT agrees that all copyrights which arise from creation of the work product pursuant to this Agreement are vested in CITY, and CONSULTANT hereby waives and relinquishes all claims to copyright or other intellectual property rights in favor of CITY. Neither CONSULTANT nor its subcontractors, if any, shall make any of such work product available to any individual or organization without the prior written DocuSign Envelope ID: F8BA04F6-4FD2-40DC-9D72-2D94F1B60E59 Item 9
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approval of the C ity Manager or designee. CONSULTANT makes no representation of the suitability of the work product for use in or application to circumstances not contemplated by the Scope of Services.
SECTION 15. AUDITS . CONSULTANT agrees to permit CITY and its authorized representatives to audit, at any reasonable time during the term of this Agreement and for four (4) years from the date of final payment, CONSULTANT’s records pertaining to matters covered by this Agreement, includi ng without limitation records demonstrating compliance with the requirements of Section 10 (Independent Contractor). CONSULTANT further agrees to maintain and retain accurate books and records in accordance with generally accepted accounting principles for at least four (4) years after the expiration or earlier termination of this Agreement or the completion of any audit hereunder, whichever is later.
SECTION 16. INDEMNITY.
[Option A applies to the following design professionals pursuant to Civil Code Section 2782.8: architects; landscape architects; registered professional engineers and licensed professional land surveyors.] 16.1. To the fullest extent permitted by law, CONSULTANT shall indemnify, defend and hold harmless CITY, its Council members, officers, employees and agents (each an “Indemnified Party”) from and against any and all third party demands, claims, or liability of any nature, including death or injury to any person, property damage or any other loss, including all costs and expenses of whatever nature including attorney’ s fees, experts fees, court costs and disbursements (“Claims”) to the extent that such Claims arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of CONSULTANT, its officers, employees, agents or contractors under this Agreement, regardless of whether or not it is caused in part by an Indemnified Party. CITY will reimburse CONSULTANT for the proportionate percentage of defense costs exceeding CONSULTANT’s proportionate percentage of fault as determined by the final judgment of a court of competent jurisdiction.
[Option B applies to any consultant who does not qualify as a design professional as defined in Civil Code Section 2782.8.] 16.1. To the fullest extent permitted by law, CONSULTANT shall indemnify, defend and hold harmless CITY, its Council members, officers, employees and agents (each an “Indemnified Party”) from and against any and all demands, claims, or liability of any nature, including death or injury to any person, property damage or any other loss, including all costs and expenses of whatever nature including attorney’ s fees, experts fees, court costs and disbursements (“Claims”) resulting from, arising out of or in any manner related to performance or nonperformance by CONSULTANT, its officers, employees, agents or contractors under this Agreement, regardless of whether or not it is caused in part by an Indemnified Party.
16.2. Notwithstanding the above, nothing in this Section 16 shall be construed to require CONSULTANT to indemnify an Indemnified Party from a Claim arising from the active negligence or willful misconduct of an Indemnified Party that is not contributed to by any act of, or by any omission to perform a duty imposed by law or agreement by, CONSULTANT, its officers, employees, agents or contractors under this Agreement.
16.3. The acceptance of CONSULTANT’s Services and duties by CITY shall not operate as a waiver of the right of indemnification. The provisions of this Section 16 shall survive DocuSign Envelope ID: F8BA04F6-4FD2-40DC-9D72-2D94F1B60E59 Item 9
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the expiration or early termination of this Agreement.
SECTION 17. WAIVERS. No waiver of a condition or nonperformance of an obligation under this Agreement is effective unless it is in wr iting in accordance with Section 2 9.4 of this Agreement. No delay or failure to require performance of any provision of this Agreement shall constitute a waiver of that provision as to that or any other instance. Any waiver granted shall apply solely to the specific instance expressly stated. No single or partial exercise of any right or remedy will preclude any other or further exercise of any right or remedy.
SECTION 18. INSURANCE.
18.1. CONSULTANT, at its sole cost and expense, shall obtain and maintain, in full force and effect during the term of this Agreement, the insurance coverage described in Exhibit D, entitled “INSURANCE REQUIREMENTS”. CONSULTANT and its contractors, if any, shall obtain a policy endorsement naming CITY as an additional insured under any general liability or automobile policy or policies.
18.2. All insurance coverage required hereunder shall be provided through carriers with AM Best’s Key Rating Guide ratings of A -:VII or higher which are licensed or authorized to transact insurance business in the State of California. Any and all contractors of CONSULTANT retained to perform Services under this Agreement will obtain and maintain, in full force and effect during the term of this Agreement, identical insurance coverage, naming CITY as an additional insured under such policies as required above.
18.3. Certificates evidencing such insurance shall be filed with CITY concurrently with the execution of this Agreement. The certificates will be subject to the approval of CITY’s Risk Manager and will contain an endorsement stating that the insurance is primary coverage and will not be canceled, or materially reduced in coverage or limits, by the insurer except after filing with the Purchasing Manager thirty (30) days ’ prior written notice of the cancellation or modification. If the insurer cancels or modifies the insurance and provides less than thirty (30) days’ notice to CONSULTANT , CONSULTANT shall provide the Purchasing Manager written notice of the cancellation or modification within two (2) business days of the CONSULTANT’s receipt of such notice. CONSULTANT shall be responsible for ensuring that current certificates evidencing the insurance are provided to CITY’s Chief Procurement Officer during the entire term of this Agreement.
18.4. The procuring of such required policy or policies of insurance will not be construed to limit CONSULTANT ’s liability hereunder nor to fulfill the indemnification provisions of this Agreement. Notwithstanding the policy or policies of insurance, CONSULTANT will be obligated for the full and total amount of any damage, injury, or loss caused by or directly arising as a result of the Services performed under this Agreement, including such damage, injury, or loss arising after the Agreement is terminated or the term has expired.
SECTION 19. TERMINATION OR SUSPENSION OF AGREEMENT OR SERVICES.
19.1. The City Manager may suspend the performance of the Services, in whole or in part, or terminate this Agreement, with or without cause, by giving ten (10) days prior written notice thereof to CONSULTANT. If CONSULTANT fails to perform any of its material DocuSign Envelope ID: F8BA04F6-4FD2-40DC-9D72-2D94F1B60E59 Item 9
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obligations under this Agreement, in addition to all other remedies provided under this Agreement or at law, the City Manager may terminate this Agreement sooner upon written notice of termination. Upon receipt of any notice of suspension or termination , CONSULTANT will discontinue its performance of the Services on the effective date in the notice of suspension or termination.
19.2. In event of suspension or termination, CONSULTANT wi ll deliver to the City Manager on or before the effective date in the notice of suspension or termination, any and all work product, as detailed in Section 14 (Ownership of Materials), whether or not completed, prepared by CONSULTANT or its contractors, if any, in the performance of this Agreement. Such work product is the property of CITY, as detailed in Section 14 (Ownership of Materials).
19.3. In event of suspension or termination, CONSULTANT will be paid for the Services rendered and work products delivered to CITY in accordance with the Scope of Services up to the effective date in the notice of suspension or termination; provided, however, if this Agreement is suspended or terminated on account of a default by CONSULTANT, CITY will be obligated to compensate CONSULTANT only for that portion of CONSULTANT’s S ervices provided in material conformity with this Agreement as such determination is made by the Ci ty Manager acting in the reasonable exercise of his/her discretion . The following Sections will survive any expiration or termination of this Agreement: 14, 15, 16, 17, 19.2, 19.3, 19.4, 20, 25, 27, 28, 29 and 30.
19.4. No payment, partial payment, acceptance, or partial acceptance by CITY will operate as a waiver on the part of CITY of any of its rights under this Agreement, unless made in accordance with Section 17 (Waivers).
SECTION 20. NOTICES.
All notices hereunder will be given in writing and mailed, postage prepaid, by certified mail, addressed as follows:
To CITY: Office of the City Clerk
City of Palo Alto
Post Office Box 10250
Palo Alto, CA 94303
With a copy to the Purchasing Manager
To CONSULTANT: Attention of the P roject Manager at the address of CONSULTANT recited on the first page of this Agreement.
CONSULTANT shall provide written notice to CITY of any change of address.
SECTION 21. CONFLICT OF INTEREST.
21.1. In executing this Agreement, CONSULTANT covenants that it presently has no interest, and will not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of the Services.
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21.2. CONSULTANT further covenants that, in the performance of this Agreement, it will not employ subcontractors or other persons or parties having such an interest.
CONSULTANT certifies that no person who has or will have any financial interest under this Agreement is an officer or employee of CITY; this provision will be interpreted in accordance with the applicable provisions of the Palo Alto Municipal Code and the Government Code of the State of California, as amended from time to time. CONSULTANT agrees to notify CITY if any conflict arises.
21.3. If the CONSULTANT meets the definition of a “Consultant” as defined by the Regulations of the Fair Political Practices Commission, CONSULTANT will file the appropriate financial disclosure documents required by the Palo Alto Municipal Code and the Political Reform Act of 1974, as amended from time to time.
SECTION 22. NONDISCRIMINATION; COMPLIANCE WITH ADA.
22.1. As set forth in Palo Alto Municipal Code S ection 2.30.510, as amended from time to time, CONSULTANT certifies that in the performance of this Agreement, it shall not discriminate in the employment of any person due to that person’s race, skin color, gender, gender identity, age, religion, disability, national origin, ancestry, sexual orientation, pregnancy, genetic information or condition, housing status, marital status, familial status, weight or height of such person. CONSULTANT acknowledges that it has read and understands the provisions of Section
2.30.510 of the Palo Alto Municipal Code relating to Nondiscrimination Requirements and the penalties for violation thereof, and agrees to meet all requirements of Section 2.30.510 pertaining to nondiscrimination in employment.
22.2. CONSULTANT understands and agrees that pursuant to the Americans Disabilities Act (“ADA”), programs, services and other activities provided by a public entity to the public, whether directly or through a contractor or subcontractor, are required to be accessible to the disabled public. CONSULTANT will provide the Services specified in this Agreement in a manner that complies with the ADA and any other applicable federal, state and local disability rights laws and regulations, as amended from time to time. CONSULTANT will not discriminate against persons with disabilities in the provision of services, benefits or activities provided under this Agreement.
SECTION 23. ENVIRONMENTALLY PREFERRED PURCHASING A ND ZERO WASTE REQUIREMENTS. CONSULTANT shall comply with t he CITY’s Environmentally Preferred Purchasing policies which are available at CITY ’s Purchasing Department , hereby incorporated by reference and as amended from time to time. CONSULTANT shall comply with waste reduction, reuse, recycling and disposal requirements of CITY’s Zero Waste Program. Zero Waste best practices include, first, minimizing and reducing waste; second, reusing waste ; and, third, recycling or composting waste. In particular, C ONSULTANT shall comply with the following Zero Waste requirements:
(a) All printed materials provided by CONSULTANT to C ITY generated from a personal computer and printer including but not limited to, proposals, quotes, invoices, reports, and public education materials, shall be double-sided and printed on a minimum of 30% or greater post-consumer content paper, unless otherwise approved by CITY ’s Project Manager. Any submitted materials printed by a professional printing company shall be a minimum of 30% or DocuSign Envelope ID: F8BA04F6-4FD2-40DC-9D72-2D94F1B60E59 Item 9
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greater post-consumer material and printed with vegetable-based inks. (b) Goods purchased by C ONSULTANT on behalf of CITY shall be purchased in accordance with CITY’s Environmental Purchasing Policy including but not limited to Extended Producer Responsibility requirements for products and packaging. A copy of this policy is on file at the Purchasing Department’s office.
(c) Reusable/returnable pallets shall be taken back by CONSULTANT , at no additional cost to CITY, for reuse or recycling. CONSULTANT shall provide documentation from the facility accepting the pallets to verify that pallets are not being disposed.
SECTION 24. COMPLIANCE WITH PALO ALTO MINIMUM WAGE ORDINANCE .
CONSULTANT shall comply with all requirements of the Palo Alto Municipal Code Chapter 4.62 (Citywide Minimum Wage), as amended from time to time. In particular, for any employee otherwise entitled to the State minimum wage, who performs at least two (2) hours of work in a calendar week within the geographic boundaries of the City, CONSULTANT shall pay such employees no less than the minimum wage set forth in Palo Alto Municipal Code Section 4.62.030 for each hour worked within the geographic boundaries of the City of Palo Alto. In addition, CONSULTANT shall post notices regarding the Palo Alto Minimum Wage Ordinance in accordance with Palo Alto Municipal Code Section 4.62.060.
SECTION 25. NON-APPROPRIATION. This Agreement is subject to the fiscal provisions of the Charter of the City of Palo Alto and the Palo Alto Municipal Code, as amended from time to time. This Agreement will terminate without any penalty (a) at the end of any fiscal year in the event that funds are not appropriated for the following fiscal year, or (b) at any time within a fiscal year in the event that funds are only appropriated for a portion of the fiscal year and funds for this Agreement are no longer available. This Section shall take precedence in the event of a conflict with any other covenant, term, condition, or provision of this Agreement.
SECTION 2 6. PREVAILING WAGES AND DIR REGISTRATION FOR PUBLIC WORKS CONTRACTS.
26.1. This Project is not subject to prevailing wages and related requirements. CONSULTANT is not required to pay prevailing wages and meet related requirements under the California Labor Code and California Code of Regulations in the performance and implementation of the Project if the contract:
(1) is not a public works contract;
(2) is for a public works construction project of $25,000 or less, per California Labor Code Sections 1782(d)(1), 1725.5(f) and 1773.3(j); or (3) is for a public works alteration, demolition, repair, or maintenance project of $15,000 or less, per California Labor Code Sections 1782(d)(1), 1725.5(f) and 1773.3(j).
This Project is not a 9204 Public Works Project.
SECTION 28. CONFIDENTIAL INFORMATION.
28.1. In the performance of this Agreement, CONSULTANT may have access to CITY’s Confidential Information (defined below). CONSULTANT will hold Confidential DocuSign Envelope ID: F8BA04F6-4FD2-40DC-9D72-2D94F1B60E59 Item 9
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Information in strict confidence, not disclose it to any third party, and will use it only for the performance of its obligations to CITY under this Agreement and for no other purpose.
CONSULTANT will maintain reasonable and appropriate administrative, technical and physical safeguards to ensure the security, confidentiality and integrity of the Confidential Information.
Notwithstanding the foregoing, CONSULTANT may disclose Confidential Information to its employees, agents and subcontractors, if any, to the extent they have a need to know in order to perform CONSULTANT’s obligations to CITY under this Agreement and for no other purpose, provided that the CONSULTANT informs them of, and requires them to follow, the confidentiality and security obligations of this Agreement.
28.2. “Confidential Information” means all data, information (including without limitation “Personal Information” about a California resident as defined in Civil Code S ection 1798 et seq., as amended from time to time) and materials, in any form or media, tangible or intangible, provided or otherwise made available to CONSULTANT by CITY, directly or indirectly, pursuant to this Agreement. Confidential Information excludes information that CONSULTANT can show by appropriate documentation: (i) was publicly known at the time it was provided or has subsequently become publicly known other than by a breach of this Agreement; (ii) was rightfully in CONSULTANT’s possession free of any obligation of confidence prior to receipt of Confidential Information; (iii) is rightfully obtained by CONSULTANT from a third party without breach of any confidentia lity obligation; (iv) is independently developed by employees of CONSULTANT without any use of or access to the Confidential Information; or (v) CONSULTANT has written consent to disclose signed by an authorized representative of CITY.
28.3. Notwithstanding the foregoing, CONSULTANT may disclose Confidential Information to the extent required by order of a court of competent jurisdiction or governmental body, provided that CONSULTANT will notify CITY in writing of such order immediately upon receipt and prior to any such disclosure (unless CONSULTANT is prohibited by law from doing so), to give CITY an opportunity to oppose or otherwise respond to such order.
28.4. CONSULTANT will notify City promptly upon learning of any breach in the security of its systems or unauthorized disclosure of, or access to, Confidential Information in its possession or control, and if such Confidential Information consists of Personal Information, CONSULTANT will provide information to CITY sufficient to meet the notice requirements of Civil Code Section 1798 et seq., as applicable, as amended from time to time.
28.5. Prior to or upon termination or expiration of this Agreement, CONSULTANT will honor any request from the CITY to return or securely destroy all copies of Confidential Information. All Confidential Information is and will remain the property of the CITY and nothing contained in this Agreement grants or confers any rights to such Confidential Information on CONSULTANT.
28.6. If selected in Section 30 (Exhibits), this Agreement is also subject to the terms and conditions of the Information Privacy Policy and Cybersecurity Terms and Conditions.
SECTION 29. MISCELLANEOUS PROVISIONS.
29.1. This Agreement will be governed by California law, without regard to its DocuSign Envelope ID: F8BA04F6-4FD2-40DC-9D72-2D94F1B60E59 Item 9
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conflict of law provisions.
29.2. In the event that an action is brought, the parties agree that trial of such action will be vested exclusively in the state courts of California in the County of Santa Clara, State of California.
29.3. The prevailing party in any action brought to enforce the provisions of this Agreement may recover its reasonable costs and attorneys’ fees expended in connection with that action. The prevailing party shall be entitled to recover an amount equal to the fair m arket value of legal services provided by attorneys employed by it as well as any attorneys’ fees paid to third parties.
29.4. This Agreement, including all exhibits, constitutes the entire and integrated agreement between the parties with respect to the subject matter of this Agreement, and supersedes all prior agreements, negotiations, representations, statements and undertakings , either oral or written. This Agreement may be amended only by a written instrument, which is signed by the authorized repres entatives of the parties and approved as required under Palo Alto Municipal Code, as amended from time to time.
29.5. If a court of competent jurisdiction finds or rules that any provision of this Agreement is void or unenforceable, the unaffected provisi ons of this Agreement will remain in full force and effect.
29.6. In the event of a conflict between the terms of this Agreement and the exhibits hereto (per Section 30) or CONSULTANT’s proposal (if any), the Agreement shall control. In the event of a conflict between the exhibits hereto and CONSULTANT’s proposal (if any), the exhibits shall control.
29.7. The provisions of all checked boxes in this Agreement shall apply to this Agreement; the provisions of any unchecked boxes shall not apply to this Agreement.
29.8. All section headings contained in this Agreement are for convenience and reference only and are not intended to define or limit the scope of any provision of this Agreement.
29.9. This Agreement may be signed in multiple counterparts, which, when executed by the authorized representatives of the parties, shall together constitute a single binding agreement.
SECTION 30. EXHIBITS. Each of the following exhibits, if the check box for such exhibit is selected below, is hereby attached and incorporated into this Agreement by reference as though fully set forth herein:
EXHIBIT A: SCOPE OF SERVICES
EXHIBIT B: SCHEDULE OF PERFORMANCE
EXHIBIT C: COMPENSATION
EXHIBIT C-1: SCHEDULE OF RATES
EXHIBIT D: INSURANCE REQUIREMENTS
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THIS AGREEMENT IS NOT COMPLETE UNLESS ALL SELECTED EXHIBITS ARE ATTACHED.
CONTRACT No. C24190133 SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have by their duly authorized representatives executed this Agreement as of the date first above written.
CITY OF PALO ALTO
____________________________
City Manager
APPROVED AS TO FORM:
__________________________
City Attorney or designee
ANNE ROSENTHAL
Officer 1
By:
Name:
Title:
DocuSign Envelope ID: F8BA04F6-4FD2-40DC-9D72-2D94F1B60E59 Anne Rosenthal
Principal, Anne Rosenthal Fine Art Conservation
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EXHIBIT A
SCOPE OF SERVICES
Notwithstanding any provision herein to the contrary, CONSULTANT’s duties and services described in this Scope of Services shall not include preparing or assisting CITY with any portion of CITY’s preparation of a request for proposals, request for qualifications, or any other solicitation regarding a subsequent or additional contract with CITY. CITY shall at all times retain responsibility for public contracting, including with respect to any subsequent phase of this project. CONSULTANT’s participation in the planning, discussions, or drawing of project plans or specifications shall be limited to conceptual, preliminary, or initial plans or specifications.
CONSULTANT shall cooperate with CITY to ensure that all bidders for a subsequent contract on any subsequent phase of this project have access to the same information, including all conceptual, preliminary, or initial plans or specifications prepared by CONSULTANT pursuant to this Scope of Services.
CONSULTANT shall provide the Services detailed in this Exhibit A, entitled “SCOPE OF SERVICES”.
Background
The purpose of this agreement is to outline the scope of work for the restoration of original historic frescoes by artist Victor Arnautoff located near the Homer Street entrance area of the Roth Building at 300 Homer Avenue in Palo Alto, CA. The frescoes are of high artistic value and are part of the City of Palo Alto’s permanent public art collection.
The artwork is comprised of two registers of frescoes at the main entry of the building. The upper register consists of four large vertically oriented color images, depicting techniques of modern medicine. The lower register is comprised of eight smaller horizontally oriented grisaille images depicting ancient medicine, painted in a faux technique to resemble chiseled granite, adding a bas-relief appearance to the wall. Additionally, there is a narrow grisaille panel above the main entry door, and four round sepia-toned medallions high on the entry face of the portico that leads to the front entry loggia.
Project Description
The agreement scope will include the two main phases: 1) Full restoration treatment of the upper register of the artwork comprised of four multi-color fresco panels, and a narrow grisaille panel above the main entry door. 2) Treatment Testing for the lower register of the Grisaille Panels and Medallions. The Consultant will work in collaboration with the City staff throughout the entire duration of the project and attend regular check-ins with staff in person, or via phone or zoom to report on the progress of the project. The Consultant will be asked to review and consult staff and construction team on any construction documentation or any construction activities relevant to the welfare of the frescoes and will regularly evaluate vibration sensor reports.
Scope of Services:
Phase 1 – Complete Restoration of Upper Register of Frescoes
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Offsite mobilization including but not limited to researching and ordering materials, set-up and coordination with any third-party conservation consultants and fresco experts; planning of onsite conservation work processes.
Onsite work including but not limited to performing cleaning, stabilizing, filling, and inpainting frescoes and wall surfaces (cutting in accurately at the border of the frescoes) immediately adjacent to the frescoes;
Final report and documentation detailing the scope of work, techniques and materials used, before and final condition, care and conservation protocols and procedures;
Phase 2 – Treatment testing of the Lower Panel Frescoes and Medallions
Offsite mobilization including but not limited to researching and ordering materials, set-up and coordination with any third-party conservation consultants and fresco experts;
Onsite work including but not limited to further coating removal and analysis of coatings / materials and determination of original fresco layers;
Interim Research Report detailing methodology and materials used and findings, detailed photo documentation of the process, maintenance and care instructions for Public Art Program staff;
Final proposal for the restoration treatment of the lower register frescoes and medallions and budget breakdown.
Responsibilities of City of Palo Alto
Facilitate meetings with stakeholder groups and staff relevant to the Restoration Project.
Coordinate communication and supply construction documentation as needed.
Conduct research about the frescoes and any relevant events that inform their current condition.
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EXHIBIT B
SCHEDULE OF PERFORMANCE
CONSULTANT shall perform the Services so as to complete each milestone within the number of days/weeks specified below. The time to complete each milestone may be increased or decreased by mutual written agreement of the Project Managers for CONSULTANT and CITY so long as all work is completed within the term of the Agreement. CONSULTANT shall provide a detailed schedule of work consistent with the schedule below within 2 weeks of receipt of the notice to proceed (“NTP”) from the CITY.
Milestones
Completion
Number of Days/Weeks (as specified below)
from NTP
1. March – May 2024 Offsite Mobilization (Research and ordering materials, outreach and scheduling of any third-
party experts and consultants; meetings with staff
and construction team on any ongoing events and
concerns; final planning of onsite work process;
travel and accommodation arrangements.)
2. June – October 2024 Onsite Work (A total onsite conservation work is estimated to take up to two months.
Conservators may perform tasks related to Phases 1
and 2 of the overall scope simultaneously or in any
order informed by project technical needs.) - *Exact
timeline to be confirmed depending on completion
status of various construction tasks.
3. October 2024 Interim Reports & Documentation
submitted to Public Art Program staff
4. November 2024 Final Report for Phase 1 and Phase 2 (Complete Restoration of Upper Register of Frescoes and
proposal for budget breakdown, and project
timeline for the restoration treatment of the lower
register frescoes and medallions.)
Optional Schedule of Performance Provision for On-Call or Additional Services Agreements. (This provision only applies if checked and only applies to on- call agreements per Section 1 or agreements with Additional Services per Section 4.)
The schedule of performance shall be as provided in the approved T ask Order, as detailed in Section 1 (Scope of Services) in the case of on-call Services, or as detailed in Section 4 in the case of Additional Services, provided in all cases that the schedule of performance shall fall within the term as provided in Section 2 (Term) of this Agreement.
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Rosenthal Fine Art
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EXHIBIT C
COMPENSATION
The compensation to be paid to CONSULTANT under this Agreement for all S ervices, any specified reimbursable expenses, and Additional Services (if any, per Section 4), shall not exceed the amount(s) stated in Section 4 of this Agreement . CONSULTANT agrees to complete all Services, any specified reimbursable expenses, and Additional Services (if any, per Section 4) , within this/these amount(s). Any work performed or expenses incurred for which payment would result in a total exceeding the maximum amount of compensation set forth in this Agreement shall be at no cost to the CITY.
COMPENSATION SCHEDULE:
20% - upon signing the contract by the Consultant and City 25% - upon notice to proceed with onsite work
40% - upon completion of 50% of all tasks associates with Phase 1 and 2 15% - upon submission of final reports, documentation and proposal for the restoration of the lower register frescoes.
on the hourly rate schedule attached as Exhibit C-1.
REIMBURSABLE EXPENSES
CONSULTANT’S ordinary business expenses, such as administrative, overhead, administrative support time /overtime, information systems, software and hardware, photocopying, telecommunications (telephone, internet), in-house printing, insurance and other ordinary business expenses, are included within the scope of payment for Services and are not reimbursable expenses hereunder.
Reimbursable expenses, if any are specified as reimburs able under this section , will be reimbursed at actual cost. The expenses (by type, e.g. travel) for which CONSULTANT will be reimbursed are: up to the not-to-exceed amount of: $118,624.00.
A. Travel outside the San Francisco Bay A rea, including transportation and meals, if specified as reimbursable, will be reimbursed at actual cost subject to the City of Palo Alto’s policy for reimbursement of travel and meal expenses.
B. Long distanc e telephone service charges, cellular phone service charges, facsimile transmission and postage charges, if specified as reimbursable, will be reimbursed at actual cost.
All requests for reimbursement of expenses, if any are specified as reimbursable under this section, shall be accompanied by appropriate backup documentation and information.
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EXHIBIT C-1
SCHEDULE OF RATES
CONSULTANT’s schedule of rates is as follows:
Budget & Timeline City of Palo Alto, Arnautoff Frescoes, Roth Building 9.1.2023 (updated)
Item Timeline Cost Total
Protection
On-site meetings,
condition checks,
treatment
1/month or as
needed
$200/hour $ 6,000 maximum
Administration
Off-site meetings and
consultation, review of
vibration sensor reports
30 hrs or as
needed
$200/hr $ 6,000 maximum
Subtotal: $12,000
Color panels: full conservation treatment
Set-up/Materials ordering
(mobilization)
1 person 2 days $1,600/day $3,200
Cleaning 2 people 6 days $3,200/day $19,200
Fills 2 people 2 days
II
$6,400
Inpainting 2 people 6 days
II
$19,200
Materials $1,500
Travel 2 people, 3 times $76/Arx3 + $450/KGx3 $1,578
Aecommodations 18 days TBD $ 7,200 ca.
Final Report &
Documentation
3 days $1,600/day $4,800
Subtotal: $75,078
Contingency 20% $15,016
Total Color Panels
FULL TREATMENT:
$90,094
Grisaille panels: treatment testing
Further coating removal
testing+ research
2 people 4 days $12,800 $12,800
Materials $ 775
Conservation scientist 1 expert 2 days $2,000/day $4,000 Meals/housing/ground
transport
TBD roundtrip LAX-SFO $ 3,000 ca.
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Interim Research Report
& Documentation
2 days $1,600/day $3,200
Subtotal: $23,775
Contingency 20% $4,755
Total Grisaille Panels
TESTING
$28,530
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EXHIBIT D
INSURANCE REQUIREMENTS
CONSULTANTS TO THE CITY OF PALO ALTO (CITY), AT THEIR SOLE EXPENSE, SHALL FOR THE TERM OF THE
CONTRACT OBTAIN AND MAINTAIN INSURANCE IN THE AMOUNTS FOR THE COVERAGE SPECIFIED BELOW, AFFORDED BY COMPANIES WITH AM BEST’S KEY RATING OF A-:VII, OR HIGHER, LICENSED OR AUTHORIZED TO TRANSACT INSURANCE BUSINESS IN THE STATE OF CALIFORNIA.
AWARD IS CONTINGENT ON COMPLIANCE WITH CITY’S INSURANCE REQUIREMENTS AS SPECIFIED HEREIN.
REQUIRED TYPE OF COVERAGE REQUIREMENT
MINIMUM LIMITS
EACH
OCCURRENCE AGGREGATE
YES
YES
WORKER’S COMPENSATION
EMPLOYER’S LIABILITY
STATUTORY
STATUTORY STATUTORY STATUTORY
YES
GENERAL LIABILITY, INCLUDING
PERSONAL INJURY, BROAD FORM
PROPERTY DAMAGE BLANKET
CONTRACTUAL, AND FIRE LEGAL
LIABILITY
BODILY INJURY
PROPERTY DAMAGE
BODILY INJURY & PROPERTY
DAMAGE COMBINED.
$1,000,000
$1,000,000
$1,000,000
$1,000,000
$1,000,000
$1,000,000
YES
AUTOMOBILE LIABILITY,
INCLUDING ALL OWNED, HIRED,
NON-OWNED
BODILY INJURY
- EACH PERSON
- EACH OCCURRENCE
PROPERTY DAMAGE
BODILY INJURY AND PROPERTY
DAMAGE, COMBINED
$1,000,000
$1,000,000
$1,000,000
$1,000,000
$1,000,000
$1,000,000
$1,000,000
$1,000,000
$1,000,000
$1,000,000
YES
PROFESSIONAL LIABILITY,
INCLUDING, ERRORS AND
OMISSIONS, MALPRACTICE (WHEN
APPLICABLE), AND NEGLIGENT
PERFORMANCE
ALL DAMAGES $1,000,000
YES
THE CITY OF PALO ALTO IS TO BE NAMED AS AN ADDITIONAL INSURED: CONSULTANT, AT ITS SOLE COST
AND EXPENSE, SHALL OBTAIN AND MAINTAIN, IN FULL FORCE AND EFFECT THROUGHOUT THE ENTIRE TERM
OF ANY RESULTANT AGREEMENT, THE INSURANCE COVERAGE HEREIN DESCRIBED, INSURING NOT ONLY
CONSULTANT AND ITS SUBCONSULTANTS, IF ANY, BUT ALSO, WITH THE EXCEPTION OF WORKERS’
COMPENSATION, EMPLOYER’S LIABILITY AND PROFESSIONAL INSURANCE, NAMING AS ADDITIONAL INSUREDS CITY, ITS COUNCIL MEMBERS, OFFICERS, AGENTS, AND EMPLOYEES.
I. INSURANCE COVERAGE MUST INCLUDE:
A. A CONTRACTUAL LIABILITY ENDORSEMENT PROVIDING INSURANCE COVERAGE FOR CONSULTANT’S AGREEMENT TO INDEMNIFY CITY.
II. THE CONSULTANT MUST SUBMIT CERTIFICATES(S) OF INSURANCE EVIDENCING REQUIRED COVERAGE TO THE FOLLOWING: [email protected]
III. ENDORSEMENT PROVISIONS WITH RESPECT TO THE INSURANCE AFFORDED TO ADDITIONAL INSUREDS:
A. PRIMARY COVERAGE
WITH RESPECT TO CLAIMS ARISING OUT OF THE OPERATIONS OF THE NAMED INSURED,
INSURANCE AS AFFORDED BY THIS POLICY IS PRIMARY AND IS NOT ADDITIONAL TO OR
CONTRIBUTING WITH ANY OTHER INSURANCE CARRIED BY OR F OR THE BENEFIT OF THE ADDITIONAL INSUREDS.
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B. CROSS LIABILITY
THE NAMING OF MORE THAN ONE PERSON, FIRM, OR CORPORATION AS INSUREDS UNDER
THE POLICY SHALL NOT, FOR THAT REASON ALONE, EXTINGUISH ANY RIGHTS OF THE
INSURED AGAINST ANOTHER, BUT THIS ENDORSEMENT, AND THE NAMING OF MULTIPLE
INSUREDS, SHALL NOT INCREASE THE TOTAL LIABILITY OF THE COMPANY UNDER THIS POLICY.
C. NOTICE OF CANCELLATION
1. IF THE POLICY IS CANCELED BEFORE ITS EXPIRATION DATE FOR ANY REASON
OTHER THAN THE NON-PAYMENT OF PREMIUM, THE CONSULTANT SHALL PROVIDE CITY AT LEAST A THIRTY (30) DAY WRITTEN NOTICE BEFORE THE EFFECTIVE DATE OF CANCELLATION.
2. IF THE POLICY IS CANCELED BEFORE ITS EXPIRATION DATE FOR THE NON-PAYMENT OF PREMIUM, THE CONSULTANT SHALL PROVIDE CITY AT LEAST A TEN (10) DAY WRITTEN NOTICE BEFORE THE EFFECTIVE DATE OF CANCELLATION.
EVIDENCE OF INSURANCE AND OTHER RELATED NOTICES ARE REQUIRED TO BE FILED WITH THE CITY OF PALO ALTO AT THE FOLLOWING EMAIL ADDRESS:
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City Council
Staff Report
From: City Manager
Report Type: CONSENT CALENDAR
Lead Department: Public Works
Meeting Date: March 11, 2024
Report #:2401-2483
TITLE
Adopt a Revised Interim Ordinance to Extend the Interim Parklet Program to July 31, 2024 (from March 31, 2024) and Phase-in Enforcement of the Ongoing Parklet Program through November 1, 2024; and Extend Parking Lot Eating/Drinking Uses to December 31, 2024; CEQA Status- Categorically Exempt (Sections 15301 and 15304(e))
RECOMMENDATION
Staff recommends that the City Council adopt the revised ordinance to extend the interim parklet program through July 31, 2024 and phase enforcement of the Ongoing Parklet Program through November 1, 2024, and to extend existing interim parking lot eating/drinking uses through December 31, 2024.
BACKGROUND
Council approved the Ongoing (previous called “Permanent”) Parklet Program guidelines and associated legislation on September 11, 2023. The full background on the parklet program can be found in the associated staff report.1
ANALYSIS
Emerson Street, where several parklets are located, pavement is in poor condition and was originally scheduled to be repaved in April 2020. Due to the pandemic and the desire to allow businesses the opportunity to provide outdoor dining, five blocks (Lytton Avenue to Channing Avenue) were cancelled from the 2020 construction contract and the work was postponed. The Emerson Street paving work is now planned for the annual contract that received bids on January 22, 2024. The street will need to be clear of parklets to allow the work to happen. On December 14, 2023, Public Works staff met with eight of the twelve parklet owners on Emerson Street to discuss the timing of the upcoming Emerson Street paving work. The parklet owners asked that, due to upcoming restaurant reservations for occasions such as Easter and graduations, the paving work be delayed until July and August 2024 rather than April and May 1 City Council September 11, 2023, Agenda Item #10; SR# 2308-1917 https://www.cityofpaloalto.org/files/assets/public/v/1/public-works/engineering-services/parklet- program/sr2308-1917-9.11.2023-parklet-program.pdf
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as initially planned. This timeframe also allows staff greater flexibility in scheduling the paving work with the selected contractor.
Additionally, when the ongoing parklet program was approved by Council, staff was directed to develop a pre-approved parklet design that would provide businesses with an option providing greater ease in meeting the ongoing parklet program guidelines. As this work is underway, delayed implementation of the ongoing parklet standards allows development of the pre- approved parklet design(s) and greater opportunity for businesses to use this option. Below is the revised timing of the ongoing parklet program, reflecting the extension of the interim program to July 31, 2024 and phased enforcement of ongoing program standards through November 1, 2024. Note the key deadline below for businesses on July 1, 2024.
Ongoing Parklet Program Roll-out
Late March/early
April 2024
Stakeholder outreach
Architectural Review Board (ARB) review for pre-approved parklet design(s)
May 2024 ARB review of draft pre-approved parklet designs June 2024 Council review of pre-approved parklet designs July 1, 2024 1. Adopted standards for ongoing parklets go into effect
2. Parklet pre-applications are due to City
▪Indicate intent to build/continue parklet
▪Indicate interest in pre-approved parklet design
3. Parklet license fee due
4. Emerson Street parklets must be removed
July/August 2024 Emerson Street repaving project
August 1, 2024 Any parklet without a pre-application must be removed August 2024 Pre-approved parklet design and associated drawings available for use August 2024 Parklet applications accepted
Pre-approved parklet applications will have a shorter review time September/October
2024
Parklet construction (with applicable permits)
November 1, 2024 Parklets must be in compliance with adopted ongoing parklet standards
Recently, staff held two meetings with businesses regarding the ongoing parklet program. A Parklet Office Hours Zoom meeting was held on January 18 to review the changes in the adopted ongoing parklet guidelines and answer questions from parklet owners. Over 30 attendees participated in the meeting. The meeting attendees were informed that staff would be recommending to Council to extend the implementation date to July 1. This news was well- received as parklet owners stated they need more time, citing the difficulty of getting on the schedule of architects, engineers, and contractors for a small modification project.
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A second meeting to discuss the ongoing parklet guidelines was held on February 21, with over 30 attendees participating. Staff presented an update on program status including a plan for pre-approved designs and a proposed timeline for a phased implementation and enforcement.
Attendees represented a wide range of retail and restauranteur interests. One attendee expressed a desire for immediate enforcement while another expressed concerns about the need to remove a parklet due to the Emerson Street paving project. Another attendee noted the importance of allowing existing parklets to take advantage of outdoor dining during the summer months.
A majority of the attendees sought clarity on program standards, pre-approved designs, and timeline. It was clarified that the ongoing parklet program guidelines remain unchanged from those adopted in September 2023. At the same time, staff shared plans to extend the implementation timeline as recommended in this report, and pre-approved designs are not mandatory. A business may choose to use a pre-approved design to save on design and engineering costs and take advantage of an expedited review. Staff committed to keeping the attendees apprised of program updates and pre-approved designs via the City website, emails, and meetings.
Based on these factors, staff is recommending adoption of the revised interim ordinance (Attachment A) to extend the implementation date for enforcement of the ongoing parklet standards from April 1 to November 1. This provides better coordination with the development of a pre-approved parklet design(s) to allow for greater opportunity for businesses to use the streamlined option and to allow some additional time as staff works with parklet owners on their questions about the new requirements. The revised interim ordinance would also extend the existing interim program for parking lot eating and drinking uses, currently used by one permittee, through December 31, 2024.
FISCAL/RESOURCE IMPACT
Staff’s recommendation of extending the implementation date has no resource impact.
STAKEHOLDER ENGAGEMENT
Staff has met with the parklet owners over the last two months to discuss this recommendation.
ENVIRONMENTAL REVIEW
The parklet program project is categorically exempt under California Environmental Quality Act (CEQA) is defined in CEQA Guidelines 15304 (e) (Class 4. Minor Alterations to Land) because the project entails only minor public alterations in the condition of land and having to negligible or no permanent effect on the environment. Similarly, CEQA Guidelines, Section 15301 (Existing Facilities) would apply, as it would involve the operation, permitting, or minor alteration of existing public facilities or topographical features, involving negligible or no expansion of existing or former use.
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In addition, the proposed activity falls within the scope of CEQA Guidelines Section 15061(b)(3), in that it can be seen with certainty that there is no possibility that the activity in question, namely installation (in some instances) of platform structures over existing paved areas to facilitate outdoor business activity, will have a significant effect on the environment.
ATTACHMENTS
Attachment A: Interim Ordinance Extending the Interim Parklet Program to July 31, 2024 and Delaying Enforcement of the Permanent (Ongoing) Parklet Program Until November 1, 2024.
APPROVED BY:
Brad Eggleston, Director Public Works/City Engineer
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Ordinance No. _____
Interim Ordinance of the Council of the City of Palo Alto Temporarily Continuing the Expansion of Outdoor Dining, Retail and Other Activities on Public and Private Property and Relaxing Regulations Regarding Onsite Parking, On-Sale of Alcohol, Design/Architectural Review, Permit Fees, and Alcohol Consumption in Public Places, All to Facilitate Such Outdoor Use; and Delaying Implementation of the Permanent Parklet Ordinance Until November 1, 2024.
The Council of the City of Palo Alto ORDAINS as follows:
SECTION 1. Findings and Declarations. The City Council finds and declares as follows:
A. On June 23, 2020, the City Council adopted Ordinance 5500, an emergency ordinance, in response to COVID -19 and its effects on local businesses. At that time and since then, county and state regulations related to COVID -19 have limited or curtailed many indoor activities, including dining, bars, retail, performances, and other recreational uses.
B. In June 2021, the City Council adopted Ordinance 5526, which amended and restated Ordinance 5500 on a non-emergency basis (among other changes).
C. On November 8, 2022, the City Council adopted Ordinance 5533, which amended and restated Ordinance 5526 with a sunset date of June 30, 2022.
D. In May 2022, t he City Council adopted Ordinance 5551, which amend ed and restate d Ordinance 5533 to extend its provisions through December 31, 2022.
E. In October and November 2022, the City Council adopted Ordinance 5572, which amended and restated Ordinance 5551 to extend its parklet provisions through June 30, 2023 and the remainder of its provisions through December 31, 2023.
F. In May 2023, the City Council adopted Ordinance 5584 to extend the parklet provisions of this ordinance until March 31, 2024. The remainder of the ordinance will sunset on December 31, 2023 as previously adopted.
G. In November 2023, t he City Council adopted Ordinance 5603 to extend the on -street dining provisions of this ordinance until December 31, 2024.
H. The City Council now desires to extend the parklet provisions of this ordinance until August 1, 2024; delay enforcement of the permanent (ongoing) parklet ordinance 5594 to November 1, 2024 for parklets in transition ; and extend parking lot uses through December 2024.
Item 10
Attachment A - Interim
Ordinance Extending
Interim Parklets through
August 1, 2024 and
Delaying Enforcement of
the Permanent (Ongoing)
Parklet Program to
November 1, 2024.
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SECTION 2. City Manager Authorization
The City Manager or his or her designee(s) may promulgate guidelines and implementing regulations for the uses and programs described in this Ordinance as long as such regulations do not conflict with this Ordinance.
SECTION 3. Fee Waivers for Encroachment Permits and Parking Space Closures
A. The permit fees set forth in the Municipal Fee Schedule are temporarily waived for applications for encroachment permits under Palo Alto Municipal Code Section 12.12.010 and Section 12.12.020, as modified by this Ordinance, to place structures and equipment in the public right-of-way (including closed streets and sidewalks) for purposes of outdoor dining and outdoor retail sales and display of wares.
B. The parking space closure fee in the Municipal Fee Schedule collected by the Department of Planning and Development Services is temporarily waived for the use of a parking space(s) on-street or in a parking lot for purposes of outdoor dining and outdoor re tail sales and display of wares as authorized through an encroachment permit, license, or agreement with the City.
SECTION 4. Modified Review Process for Commercial Sidewalk Encroachment Permits
Notwithstanding contrary provisions of PAMC Section 12.12.020, permits may be granted for commercial sidewalk encroachments for outdoor retail sales and display areas and outdoor eating areas. Permits for these purposes shall not be required to undergo and complete design review by the Planning Department described in subsection (d) of Section 12.12.020. Except as expressly modified herein, the provisions of Section 12.12.020 shall apply to commercial sidewalk encroachments.
SECTION 5. Eating and Drinking Establishments
Eating establishments, and drinking establishments may temporarily relocate some or all of their existing indoor seating capacity to outdoor seating capacity, as follows:
A. Location. Outdoor eating areas may be placed in one or more of the following areas:
1. Public streets temporarily closed by the City of Palo Alto, through issuance of an encroachment permit under PAMC Section 12.12.010;
2. Sidewalks through issuance of an encroachment permit under PAMC Section
12.12.020, as modified by Section 4 of this Ordinance;
Item 10
Attachment A - Interim
Ordinance Extending
Interim Parklets through
August 1, 2024 and
Delaying Enforcement of
the Permanent (Ongoing)
Parklet Program to
November 1, 2024.
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3. In on -street parking spaces approved for use as temporary parklets , in accordance with the Pilot Parklet Demonstration Project as first approved by Council Resolution No. 9909 and continued by subsequent resolutions;
4. Surface p arking lots that currently provide required onsite parking for the eating/drinking establishment, through issuance of an approval by the Director of Planning, or his or her designee , as described in subsections C and D of this Section, below;
5. Other outdoor areas on the eating /drinking establishment site not originally permitted for outdoor seating in the establishment’s approved site plan or planning entitlement ( such as landscaped a reas), through issuance of an approval by the Director of Planning, or his or her designee, in accordance with subsections C and D of this Section, below; and
6. In other areas that the Council identifies by resolution or ordinance.
B. Use of Private Parking Lots – Temporary Reduction of Parking Requirements.
1. Notwithstanding the parking requirements applicable to eating /drinking establishments in Title 18 (Zoning) of the PAMC or in individual planning entitlements or approvals for eating /drinking establishments, an eating/drinking establishment may place outdoor eating areas in its parking lot, so long as at least half of the parking spaces on the subject site remain available for use by vehicles. If the establishment’s parking lot has ten or fewer parking spaces, up to 100 percent of the parking lot may be used for outdoor eating, subject to review and approval of the Planning Director or his or her designee.
2. Notwithstanding the parking requirements applicable to shopping centers and their tenant businesses in Title 18 (Zoning) of the PAMC or in individual planning entitlements or approvals for shopping centers or their tenant businesses, a shopping center with an eating /drinking establishment tenant(s) may place outdoor eating areas for such tenant business(es) in the shopping center parking lot, so long as at least half of the parking spaces on the subject site remain available for use by vehicles.
C. Application. A n application in a form approved by the Director of Planning shall be submitted to the Planning and Development Services Department to relocate some or all of an eating /drinking establishment’s permitted indoor restaurant seating to outdoor seating in privately-owned areas on the eating/drinking establishment site not originally permitted for outdoor eating. The Director of Planning is authorized to establish submittal requirements and procedures. Temporary Use Permit s (TUP) under PAMC Section 18.42.050 may be utilized for this purpose. A TUP issued for this purpose may be valid for a specified period longer than 45 days, notwithstanding subsection (d) of Section Item 10
Attachment A - Interim
Ordinance Extending
Interim Parklets through
August 1, 2024 and
Delaying Enforcement of
the Permanent (Ongoing)
Parklet Program to
November 1, 2024.
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18.42.050. The Planning Director may extend a TUP issued prior to the effective date of this Ordinance to be valid beyond 45 days.
D. Seating Layout Review. A Seating Layout Review is required to relocate some or all of an eating/drinking establishment’s permitted indoor seating to outdoor seating in privately- owned areas on the eating /drinking establishment site not originally permitte d for outdoor eating. The Seating Layout Review shall be conducted by a transportation planner, planner, and/or fire inspector who will review and either approve or require modifications to the proposed outdoor seating layout based on the following criteria:
1. Seating layout does not create a safety risk and adequate pedestrian and vehicular separation is maintained, including with movable barriers as appropriate where outdoor seating is to be placed in parking lots or on-street parking spaces.
2. Seating layout accommodates appropriate vehicle and pedestrian circulation and maintains adequate paths of travel and complies with accessibility requirements of the Americans with Disabilities Act.
3. Any tents must comply with fire codes and Palo Alto Fire Department issued standards for tents, and safety standards set forth by the National Fire Protection Association for fire-resistant tents and must include an affixed manufacturer’s label stating the tent meets NFPA requirements. A State Fire Marshal seal on the tent or a certificate is needed to prove treatment.
4. Any heaters must comply with fire codes.
5. An adequate and visible barrier is placed that clearly separates the retail area from the parking area and provides sufficient protection for patrons. Adequacy shall be defined in standards and guidelines issued by the Director of Planning.
6. Other requirements established in the standards and guidelines issued by the Director of Planning.
E. Fee. No fee will be charged for submittal and review of the Application and for conducting a Seating Layout Review.
F. Occupancy. Total seating occupancy (including all indoor and outdoor seating) shall not exceed the overall occupancy for which the restaurant is permitted.
G. Alcohol Service. Establishments that are allowed by the City to serve alcohol for onsite consumption by issuance of a conditional use permit (“CUP”) as required by PAMC Section
18.42.090 or as a legal nonconforming use, and that both have an on -sale license from the Department of Alcoholic Beverage Control (“ABC”) and are duly authorized by ABC to serve alcohol in outdoor areas, shall be allowed to serve alcohol for onsite consumption Item 10
Attachment A - Interim
Ordinance Extending
Interim Parklets through
August 1, 2024 and
Delaying Enforcement of
the Permanent (Ongoing)
Parklet Program to
November 1, 2024.
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in such outdoor areas, notwithstanding any prohibition on outdoor alcohol service or consumption in the PAMC or planning entitlement issued under Title 18 (Zoning) of the PAMC. During the effective period of this Ordinance, establishments that meet the preceding requirements may expand their footprint to outdoor areas without an amendment of the CUP, notwithsta nding PAMC Section 18.42.090(c). Outdoor alcohol service shall be in full compliance with ABC regulations, as amended.
H. No Architectural Review . Notwithstanding PAMC Sections 18.77.077 and 18.76.020, architectural review shall not be required for propose d outdoor eating areas or signage related to such areas during the effective period of this Ordinance.
SECTION 6. Retail Establishments
Retail establishments may temporarily relocate some or all of their existing customer-accessible square footage to outdoor spaces as follows:
A. Location. Outdoor retail sales and display areas and outdoor eating areas may be placed in one or more of the following areas:
1. Public streets temporarily closed by the City of Palo Alto, through issuance of an encroachment permit under PAMC Section 12.12.010;
2. Sidewalks through issuance of an encroachment permit under PAMC Sec tion
12.12.020, as modified by Section 4 of this Ordinance;
3. Surface parking lots that currently provide required onsite parking for the retail establishment, through issuance of an approval by the Director of Planning , or his or her designee, as described in subsections C and D of this Section, below;
4. Other outdoor areas on the retail establishment site not originally permitted for retail sales and display or dining in the retail establishment’s approved site plan or planning entitlement (such as landscaped areas), through issuance of an approval by the Director of Planning or his or her designee in accordance with subsections C and D of this Section, below; and
5. In other areas that the Council identifies by resolution or ordinance.
B. Use of Private Parking Lots – Temporary Reduction of Parking Requirements.
1. Notwithstanding the parking requirements applicable to retail establishments in Title 18 (Zoning) of the PAMC or in individual planning entitlements or approvals for retail establishments, a retail establishment may conduct outdoor retail sales and display and may place outdoor eating areas in its parking lot, so lo ng as at least half of the parking spaces on the subject site remain available for use by vehicles. If the Item 10
Attachment A - Interim
Ordinance Extending
Interim Parklets through
August 1, 2024 and
Delaying Enforcement of
the Permanent (Ongoing)
Parklet Program to
November 1, 2024.
Item 10: Staff Report
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establishment’s parking lot has ten or fewer parking spaces, up to 100 percent of the parking lot may be used for outdoor dining/retail , subject to review and approval of the Planning Director or his or her designee.
2. Notwithstanding the parking requirements applicable to shopping centers and their tenant businesses in Title 18 (Zoning) of the PAMC or in individual planning entitlements or approvals for shopping centers or their tenant businesses, a shopping center with a retail establishment tenant(s) may place outdoor retail sales and display areas and outdoor eating areas for such tenant business(es) in the shopping center parking lot, so long as at least half of the parking spaces on the subject site remain available for use by vehicles.
C. Application. An application in a form approved by the Director of Planning shall be submitted to the Planning and Development Services Department to relocate some or all of a retail establishment’s customer-accessible square footage to outdoor retail sales and display in privately-owned areas on the retail establishment site not originally permitted for outdoor retail sales and display . The Director of Planning is authorized to establish submittal requirements and procedures. Temporary Use Permits (TUP) under PAMC Section 18.42.050 may be utilized for this purpose. A TUP issued for this purpose may be valid for a specified period longer than 45 days, notwithstanding subsection (d) of Section
18.42.050. The Planning Director may extend a TUP issued prior to the effective date of this Ordinance to be valid beyond 45 days.
D. Merchandise or Seating Layout Review. A Layout Review is required to relocate some or all of an retail establishment’s permitted indoor customer-accessible square footage to privately-owned areas on the retail establishment site not originally permitted for retail.
The Layout Review shall be conducted by a transportation planner, planner, and/or fire inspector who will review and either approve or require modifications to the proposed retail layout based on the following criteria:
1. The placement of the merchandise, displays, or other items does not create a safety risk and adequate pedestrian and vehicular separation is maintained, including with movable barriers as appropriate where outdoor seating is to be placed in parking lots or on-street parking spaces.
2. The layout accommodates appropriate vehicle and pedestrian circulation and maintains adequate paths of travel and complies with accessibility requirements of the Americans with Disabilities Act.
3. Any tents must comply with fire codes and Palo Alto Fire Department issued standards for tents, and safety standards set forth by the National Fire Protection Association for fire-resistant tents and must include an affixed manufacturer’s label stating the tent meets NFPA requirements. A State Fire Marshal seal on the tent or a certificate is needed to prove treatment.
Item 10
Attachment A - Interim
Ordinance Extending
Interim Parklets through
August 1, 2024 and
Delaying Enforcement of
the Permanent (Ongoing)
Parklet Program to
November 1, 2024.
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4. Any heaters must comply with fire codes.
5. An adequate and visible barrier is placed that clearly separates the retail area from the parking area and provides sufficient protection for patrons. Adequacy shall be defined in standards and guidelines issued by the Director of Planning.
6. Other requirements established in the standards and guidelines issued by the Director of Planning.
E. Fee. No fee will be charged for submittal and review of the Application and for conducting a Layout Review.
F. No Architectural Review . Notwiths tanding PAMC Sections 18.77.077 and 18.76.020, architectural review shall not be required for proposed outdoor retail areas or signage related to such areas during the effective period of this Ordinance.
SECTION 7. Compliance with Other Regulations, Orders and Approvals
The uses of public and private property allowed in this Ordinance shall be conducted in compliance with any applicable state or county mandate (including executive orders and health orders), this Ordinance, Resolution No. 9909 and its successors, and all other local and state regulations, orders, and approvals, as applicable (collectively, “Applicable Law”). Any approval, allowance or permit to conduct such temporary outdoor use(s) shall be subject to revocation by the issuing City official if the use is conducted in violation of Applicable Law, or poses a threat to public health, safety or welfare.
SECTION 8. No Vested Rights
The outdoor uses of public and private property allowed in this Ordinance are temporary and shall be terminated upon the earlier of the date stated in the applicable permit/approval or the expiration of this interim Ordinance , unless earlier revoked by the City Manager or other authorized official (or their designee) or terminated by action of the City Council . The City may discontinue one or more, or all, of the allowed outdoor uses at any time if the City Manager or designee determines that the public health, safety or welfare warrant such action. Nothing in this Ordinance shall establish a vested right.
SECTION 9. Suspension of Prohibition on Alcohol Consumption in Lytton Plaza and Cogswell Plaza
Notwithstanding PAMC Sections 22.04.330 and 22.04.331, the City Manager is authorized to suspend the prohibition on consumption of alcoholic beverages in the parking lots adjacent to Lytton Plaza and Cogswell Plaza.
Item 10
Attachment A - Interim
Ordinance Extending
Interim Parklets through
August 1, 2024 and
Delaying Enforcement of
the Permanent (Ongoing)
Parklet Program to
November 1, 2024.
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SECTION 10. Use of City Parking Lots for Reopening Activities A. The City Manager, or his or her designee (“City Manager”), is authorized to permit outdoor dining, retail and other activities necessary to facilitate the reopening of businesses, in public parking lots owned by the City, subject to the City Manager’s adoption of rules, regulations, guidelines, and standards for such use (“Regulations”), and publication of such Regulations on the City’s website . Use of parking lots, or portions thereof, by a business shall require a license or other agreement, including an agreement to indemnify and hold harmless the City, and provision of insurance.
B. The City Manager is authorized to waive any fee in the Municipal Fee Schedule associated with the temporary use of parking areas for the purposes identified in Section A above.
C. Notwithstanding PAMC Section 9.04.020, the City Manager is authorized to suspend the prohibition on consumption of alcoholic beverages in any City owned parking lot.
SECTION 11. Personal Services, Indoor Recreation and Other Uses
The authorized outdoor uses of public and private spaces authorized in this Ordinance may be applied to personal services, indoor recreation and other uses. Prior to authorizing these additional activities to occur, the City Manager, or his or her designee (“City Manager”), shall adopt rules, regulations, guidelines, and standards for these uses, and publish them on the City’s website.
SECTION 12. Severability
If any section, subsection, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed this Ordinance and each and every section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any portion of the Ordinance would be subsequently declared invalid or unconstitutional.
SECTION 13. Environmental Review
The Council finds that the Ordinance is categorically exempt from CEQA under CEQA Guidelines Sections 15301 (existing facilities) and 15304(e) (minor temporary use of land having negligible or no permanent effects on the environment).
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Attachment A - Interim
Ordinance Extending
Interim Parklets through
August 1, 2024 and
Delaying Enforcement of
the Permanent (Ongoing)
Parklet Program to
November 1, 2024.
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SECTION 14. Effective Date
This Ordinance shall be effective 31 days after adoption. Subject to future Council action, the provisions of this ordinance allowing eating and drinking establishments , retail establishments, and other uses on temporarily closed streets and in public and private parking lots in Sections 5, 6, 10 and 11 of this Ordinance shall remain in effect until December 31, 2024. The remainder of the provisions in sections 5, 6, 10, and 11 , including those provisions allowing parklets shall remain in effect until July 31 , 2024. The City may adopt regulations for the orderly wind- down of the programs implemented by these provisions, including setting deadlines for teardown and removal.
SECTION 15. Uncodified
This Ordinance shall not be codified.
SECTION 16. Supercedes Ordinance 5603
As of the effective date of this Ordinance, this Ordinance shall supercede Ordinance 5603, and any conflict shall be resolved in favor of this Ordinance.
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Item 10
Attachment A - Interim
Ordinance Extending
Interim Parklets through
August 1, 2024 and
Delaying Enforcement of
the Permanent (Ongoing)
Parklet Program to
November 1, 2024.
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SECTION 17. Delay of Enforcement of the PAMC Chapter 12.11 for Transitioning Permittees The City shall delay enforcement of Ordinance 5594 as codified at PAMC Chapter 12.11 as follows:
(a) Beginning July 1, 2024, the City may begin to collect fees for the use of the right-of-way. (b) From April 1, 2024 until October 31, 2024, the City should not take enforcement action for a violation of Chapter 12.11 against a person who has (1) duly filed a pre-application for an ongoing parklet; (2) has a violation caused by the imposition of Chapter 12.11 and its regulations that did not exist prior to the imposition ; (3) has met City deadlines for transitioning parklets; and (4) is making a good-faith effort to come into compliance with Chapter 12.11 and its regulations. The City may take any other enforcement action , including if a person is (1) occupying a right of way without a valid permit or other City authorization; (2) maintaining a condition as to negatively affect public safety or welfare; or (3) for an alleged violation of any other law or regulation besides PAMC Chapter 12.11. (c) The City may adopt regulations for the orderly implementation of PAMC 12.11 that do not conflict with this Section. This includes setting deadlines for pre -applications and other submissions, as well as transition progress deadlines.
INTRODUCED:
PASSED:
AYES:
NOES:
ABSENT:
ABSTENTIONS:
NOT PARTICIPATING:
ATTEST:
____________________________ ____________________________ City Clerk Mayor
APPROVED AS TO FORM: APPROVED:
____________________________ ____________________________ Assistant City Attorney City Manager
____________________________
Director of Public Works
____________________________
Director of Planning & Development
Services
Item 10
Attachment A - Interim
Ordinance Extending
Interim Parklets through
August 1, 2024 and
Delaying Enforcement of
the Permanent (Ongoing)
Parklet Program to
November 1, 2024.
Item 10: Staff Report
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City Council
Staff Report
From: City Attorney
Report Type: CONSENT CALENDAR
Lead Department: City Attorney
Meeting Date: March 11, 2024
Report #:2402-2649
TITLE
Adopt an Ordinance Increasing Council Member Salary From $1,000/Month to $1,600/Month, Effective January 1, 2025, as authorized by State law
RECOMMENDATION
Adopt an ordinance to increase Council member salaries, effective January 1, 2025, from $1,000/month to $1,600/month, as authorized by State law.
BACKGROUND
Council members receive a salary of $1,000/month. This salary was set in 2017 and has not been increased since that time.1
On December 4, 2023, the City Council considered a Colleagues Memo regarding an adjustment to City Council compensation (attached as Attachment A).
The Council moved to increase Council member salary to the amount allowed by SB-329, $1,600/month, and allow Council members to participate in the City’s employee childcare assistance benefit. The Council also moved to direct staff to prepare future ordinances applying a cost-of-living adjustment to Council member compensation biannually.
Also on December 4, Council referred to the Policy and Services Committee consideration of a citizen advisory committee to discuss a possible City Charter amendment that would allow increases in Council member compensation above the amount provided in state law. At the Committee’s February 13, 2024 meeting, the Committee developed a recommendation on that issue, which is scheduled for Council consideration on March 11.
ANALYSIS
The City Charter provides that Council members may receive compensation in amounts not to exceed state law. (Charter, Art. III, Sec. 17).
1 https://www.cityofpaloalto.org/files/assets/public/v/1/city-clerk/ordinances/ord-5304.pdf Item 11
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In 2023, the state legislature adopted SB 329, which increased the maximum authorized salary levels of city council members and created a second optional methodology for local city councils to increase salaries over time. Under the updated statute, a city of Palo Alto’s size may provide council members a monthly salary of $1,600. Thereafter, annual increases may be made in amounts not to exceed the greater of: (a) 5% of the existing salary for each calendar year since the Council last set council member salaries (noncompounded, see (89 Ops Cal Atty Gen 159 (2006)); or (b) an amount equal to inflation since January 1, 2024 (CPI), but not to exceed 10 percent annually. (Gov Code 36516.) Each increase must be made by ordinance, with findings demonstrating the need for the increase. Automatic increases are not allowed.
Under state law, a salary increase may only come into effect at the beginning of at least one council member’s new term. (Gov. Code section 36516.5). In Palo Alto, new Council terms begin on January 1st of every odd-numbered year. (See Charter, Art. III, Sec. 2.) Compensation can be (and typically is) adjusted for all members of a council serving staggered terms whenever at least one member begins a new term of office.
State law also provides that council members may receive benefits from the city. Benefits are not counted towards the maximum allowable salary, provided that the same benefits are paid for and available to city employees. (Gov. Code section 36516 (d)).
The attached Ordinance amends Palo Alto Municipal Code section 2.04.360 to provide an increase in Council salaries to $1,600 per month effective January 1, 2025 (attached as Attachment B).
Council also moved to include Council members in the City’s childcare assistance pilot (attached as Attachment C). Staff is evaluating the childcare assistance pilot in light of Councilmembers‘ particular needs and circumstances and will report back in the future.
FISCAL/RESOURCE IMPACT
A change in council member compensation would be incorporated into the City’s General Fund budget as part of the FY 2025 Budget process. Annual salary costs for the Council are currently $84,000. This change would increase salaries by $25,200 in FY 2025, with the start date of January 1, 2025, and $50,400 annually in subsequent years for an annual total salary cost of $134,400 beginning in FY 2026. These salary costs do not include the cost of benefits which depend on the choices made by individual Council members.
ENVIRONMENTAL REVIEW
Adoption of this Ordinance is not a project under the California Environmental Quality Act (CEQA).
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ATTACHMENTS
Attachment A: Colleague’s Memo - Adjustment to City Council Compensation Attachment B: Ordinance of the Council of the City of Palo Alto Amending Chapter 2.04 (Council Organization and Procedure) of the Palo Alto Municipal Code to Increase the Salary of Council Members Effective January 2025
Attachment C: City of Palo Alto Childcare Assistance Guidelines APPROVED BY:
Molly Stump, City Attorney
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CITY COUNCIL
Colleague’s Memo
Sponsor(s): Council Member Lauing and Vice Mayor Stone
Meeting Date: December 4, 2023
Report #: 2311-2241
TITLE
Colleague’s Memo - Adjustment to City Council Compensation
RECOMMENDATION
1. Raise monthly City Councilmember salaries, at a minimum, to levels set by SB 329.
In June of this year Governor Newsom signed SB 329 (Dodd) which allows cities to set council salaries according to the size of each city’s population. Based on the population of Palo Alto, SB 329 allows salaries to be set at $1600/month consistent with this new law. There is also a process for considering future increases over time by Council action. The motivation for Senator Dodd and his colleagues was precisely to make it more appealing to a broader cross section of citizens to stand for public office as well as to recognize the true responsibilities of councilmembers in a city as measured by size. Due to procedural requirements, approving this recommendation would raise Councilmember salaries effective January 1, 2025 (and not before). If this action is taken now, candidates who run in 2024 for City Council will know that, upon taking office in January 2025 their monthly compensation will be $1600. Our hope is to attract a more socioeconomically diverse group of candidates in the 2024 election. Sitting Councilmembers in 2025 will also be increased to that amount.
2. Allow City Councilmembers to participate in the city’s employee childcare assistance benefit as applicable.
This new program for city workers should be broadened to include Councilmembers with this need. This benefit reduces a high out-of-pocket cost for the Councilmember for all of the meetings a member needs to attend – including during after school hours and for weekend meetings/events. By definition this benefit would be targeted to younger council members with pre-school or school age children – likely a renter’s demographic. It eliminates a financial burden a prospective candidate would have to address upon joining council. This is not extra salary, but it is a benefit.
3. Consider amending our charter to allow Palo Alto to set Councilmember compensation above SB 329- guidelines.
Attachment A
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Colleague's Memo -
Adjustment to City
Council Compensation
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Palo Alto is among the most affluent and highest cost areas in California. As stated above, we are different than many other cities of our population size with our own utilities, a regional water treatment facility, and an airport. Add to that our extensive open space and parklands and a children’s zoo and many other amenities we have which expands the scope of decision- making a councilmember has. In addition, Palo Alto must add over 6000 new homes in the next seven years which will add about 15,000 more residents. A $1600 City Council salary ($19,200 annually) may not be enough to influence a decision to run for council given the time investment and the high expectations of our constituents across this broad scope of responsibilities. And it may not be fair.
How should we set compensation? Here are a few data points for consideration.
A. Minimum wage in Palo Alto is $17.25 per hour translating to $35,880.00 per year for a full-time job.
B. A midlevel senior staff member across the board in the city makes about $162,229 per year.
C. A State Assembly member makes $122,694/year + per diem.
What is the appropriate compensation level for the job to be done and to attract more diversity in candidates for City Council?
BACKGROUND
The duties of a Palo Alto city councilmember require a broad skill set and an extraordinary commitment of time and effort. Many hours are required to perform the job while representing Palo Alto residents. Total hours per week are generally estimated to be in a range of 20-30+ hours across a seven-day week. This includes preparation for- and participation in- council meetings, many standing and ad hoc committee meetings, liaison assignments to commissions and outside agencies, meetings with staff, colleagues, residents, businesses, developers, public appearances, and more. The roles of Mayor and Vice Mayor require even more personal time commitment.
Unlike many cities, Palo Alto owns its own utilities, regional water treatment facility, and an airport. There are approximately 1000 city employees with a $1 billion budget.
In 2014 residents voted in a ballot measure to reduce the size of the council to seven from nine members, which became effective in 2018. All of the same work still needs to be done. The work is covered by spreading the workload among the seven council members.
The base salary for a councilmember is currently $1000/month.
CONSIDERATIONS
I. Council Member Demographics for Better Representation Attachment A
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Adjustment to City
Council Compensation
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Many councilmembers over the last two decades have been upper income residents with work flexibility and/or residents who are post-career without pressing income obligations. A good number of councilmembers have been empty-nesters. They have served the city admirably and we can expect this demographic to continue to produce excellent council members eager to serve the city.
Palo Alto is committed to diversity in all areas of city life from our residents to our city staff to our commissioners and our council members. We welcome residents of all ethnicities and income levels. We also want our city council to represent the varied demographics we now have and the many new residents who will come to PA based on our initiatives to create hundreds of new affordable homes for lower income residents. Historically, few lower income workers have chosen to run for city council. This may be the result of less flexible work hours.
In some cases, “free time” for public service is constrained by the demands of younger families to care for.
II. Council Member Compensation Relative to Workload
The Councilmember’s job is not full-time. But it is highly time intensive. Anecdotally, some residents have argued over the years that it should a be full-time job and that Councilmembers should be fairly compensated for the broad skills required in that full-time job. That option may have merit but is not under consideration as part of this colleagues’ memo. The issue, however, is to assess what fair compensation should be for the responsibilities of the role, the workload required, and to attract a broader spectrum of candidates.
FISCAL IMPACT
A change in Councilmember total compensation would be incorporated into the City’s General Fund budget; FY 2024 Adopted General Fund Budget is $279.6 million. Costs would consist of the change in salary plus the cost for all benefits, which conservatively amounts to approximately 63% of salary. Benefits will be charged based on the choices made by individuals and may include: pension, retiree medical, workers compensation, Medicare, healthcare (dental, vision, medical), and life insurance.
ATTACHMENTS
Attachment A - Memorandum on Council Member Salaries
Attachment A
Item 11
Attachment A -
Colleague's Memo -
Adjustment to City
Council Compensation
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*NOT YET APPROVED* Attachment B
1 Ordinance No. _____
Ordinance of the Council of the City of Palo Alto Amending Chapter 2.04 (Council Organization and Procedure) of the Palo Alto Municipal Code to Increase the Salary of Council Members Effective January 2025
The Council of the City of Palo Alto ORDAINS as follows:
SECTION 1. Findings and Declarations. The City Council finds and declares as follows:
A. Article III, Section 17 of the Charter of the City of Palo Alto provides that compensation may be paid to council members in amounts not to exceed those provided by general law.
B. Council member salaries were last set in 2017 by Ordinance No. 5304 in the amount of $1,000 per month.
C. In 2023, the state legislature adopted SB 329, which allows a city of Palo Alto’s size to provide council members a monthly salary of $1,600.
D. Palo Alto is among the highest cost areas in California.
E. There is a need to ensure a council member’s time commitment is fairly compensated, to allow candidates of diverse socioeconomic backgrounds to fill the role without significant personal burden.
SECTION 2. Chapter 2.04 (Council Organization and Procedure) of Title 2 (Administrative Code) the Palo Alto Municipal Code is hereby amended as follows:
2.04.360. Salary of council members.
(a) The salary of the council members shall be $600.00 per month. Effective January 1, 2017, the salary of the council members shall be $1,000 per month.
Effective January 1, 2025, the salary of the council members shall be $1,600 per month.
(b) A city council me mber may waive any or all of the compensation permitted by this section.
SECTION 3. If any section, subsection, clause or phrase of this Ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portion or sections of the Ordinance. The Council hereby declares that it should have adopted the Ordinance and each section, subsection, sentence, clause or phrase thereof irrespective of the Item 11
Attachment B - Ordinance
Amending Chapter 2.04
(Council Organization and
Procedure) of the Palo
Alto Municipal Code to
Increase the Salary of
Council Members
Effective 1-1-2025
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*NOT YET APPROVED* Attachment B
2 fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid.
SECTION 4. The Council finds that this project is exempt from the provisions of the California Environmental Quality Act (“CEQA”), pursuant to Section 15061 of the CEQA Guidelines, because it can be seen with certainty that there is no possibility that the ordinance will have a significant effect on the environment.
SECTION 5. This ordinance shall be effective on the thirty -first day after the date of its adoption.
INTRODUCED:
PASSED:
AYES:
NOES:
ABSENT:
ABSTENTIONS:
ATTEST:
____________________________ ____________________________ City Clerk Mayor
APPROVED AS TO FORM: APPROVED:
____________________________ ____________________________ Deputy City Attorney City Manager
Item 11
Attachment B - Ordinance
Amending Chapter 2.04
(Council Organization and
Procedure) of the Palo
Alto Municipal Code to
Increase the Salary of
Council Members
Effective 1-1-2025
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Attachment C
City of Palo Alto Childcare Assistance Guidelines
The City of Palo Alto understands the importance of childcare for an employee’s family. To help support our employees and build on our family-friendly work environment, the City of Palo Alto is now piloting childcare assistance1. The City will be providing up to $10,000 per calendar year to eligible regular employees to help offset the cost of childcare expenses.
Am I eligible?
• Employees must be a regular City of Palo Alto employee. • Employees must have an eligible dependent enrolled in a childcare facility located within Palo Alto city limits.
How much am I eligible for?
• Employees may receive up to $10,000 per calendar year towards the cost of childcare. The first $5,000 will be a pre-tax reimbursement, which will count towards the IRS childcare FSA limit.
The remaining $5,000 will be a post-tax reimbursement.
• The amount employees may be eligible for is based on the number of onsite days worked per week2. The chart below illustrates the assistance amount per onsite days per week.
Number of onsite days per week Childcare assistance per calendar year
1 day $2,500
2 days $5,000
3 days $7,500
4 days $10,000
How do I sign up?
• Employees are required to enroll annually during Open Enrollment by completing the enrollment form provided by Human Resources. For example, for year 2024 enrollment forms must be completed during the 2023 Open Enrollment period. • Employees hired or promoted to an eligible position can enroll in this benefit during the new hire benefit enrollment period.
How do I get reimbursed?
Pre-tax benefit
• Employees will pay the childcare expense3 out of pocket and retain proof of expense and payment.
• Then, they will log-in to their Navia account and submit for reimbursement through Navia.
Post-tax benefit
• Employees will pay the childcare expense3 out of pocket and retain proof of expense and payment.
• Reimbursement for the post-tax portion of this benefit will occur twice a year: June 1 - 15 and December 1 - 15
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Attachment C
• Employees who are eligible for reimbursement must submit a copy of the proof of expense and proof of payment along with the reimbursement request form provided by HR. • HR will review the submission for qualification and if eligible, employees will get reimbursed via their paycheck.
Additional Notes:
• Subsidy amounts will be prorated for new hires, promoted employees, midyear enrollments due to a qualifying life events and benefited part time employees. • Funds in the City of Palo Alto’s Childcare Assistance will be allocated to employees on first come basis up to the maximum budgeted amount for that year. Please see annual budget document for details.
• Eligible expenses are: Daycare, before and after school care, and preschool. All facilities must be located within Palo Alto city limits.
• Regular employee is defined in the merit rules, section 306: Appointment on a full- or part-time basis in an authorized position. "Part-time" means 40 to 79 hours per pay period. "Full-time" means 80 or more hours per pay period.
• If two City of Palo Alto employees share the same eligible dependent only one employee may claim the subsidy.
• The City reserves the right to modify or terminate this childcare assistance pilot at any time.
If you have additional questions, please do not hesitate to contact HR Benefits, [email protected] or (650) 329-2376.
1Childcare assistance is a pilot for calendar year 2024 2Safety shift employees working a 24-hour shift may be eligible for up to $5000 per shift day 3Eligible childcare expenses must be incurred within the calendar year in which benefit was approved. If an employee separates from employment with the City prior to end of the year, only eligible childcare expense incurred until the employees last day will count towards reimbursement.
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City Council
Staff Report
Report Type: ACTION ITEMS
Lead Department: City Manager
Meeting Date: March 11, 2024
Report #:2402-2700
TITLE
Approval of the 2024 City Council Priority Objectives and Finance Committee and Policy & Services Committee Workplans (Item Continued from March 4, 2024 City Council Meeting)
RECOMMENDATION
This item is a continuation of Item #8 on the City Council March 4, 2024 agenda. Materials for this item can be found here:
https://cityofpaloalto.primegov.com/Portal/Meeting?meetingTemplateId=13507 This time provides for continued discussion, as needed, of the Council 2024 priority objectives and Finance & Policy and Service Committee workplans for 2024.
APPROVED BY:
Ed Shikada
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City Council
Staff Report
From: City Manager
Report Type: ACTION ITEMS
Lead Department: City Manager
Meeting Date: March 11, 2024
Report #:2402-2657
TITLE
Policy and Services Recommendation to the City Council for the creation of a Citizens Advisory Committee on a Potential Charter Amendment on Council Member Compensation
RECOMMENDATION
The Policy and Services Committee recommends that the City Council create a Citizens Advisory Committee to evaluate City Council Member compensation above SB 329 limits, as defined in this report.
BACKGROUND AND ANALYSIS
The City Council discussed a Colleagues’ Memo on December 4, 2023 regarding City Council Member compensation and referred part of the recommendation to the Policy and Services Committee regarding the creation of a Citizens Advisory Committee to review future compensation. The City Council motion on December 4, 2023 was as follows:
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The Policy and Services Committee discussed #3 of the City Council motion relating to the creation of a Citizens Advisory Committee at the February 13, 2024 meeting. The parameters the Policy and Services Committee recommend for City Council action are listed in the motion below.
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Attachment A contains the Colleagues’ Memo as well as the brief report to Policy and Services in February 2024.
STAKEHOLDER ENGAGEMENT
If approved by the City Council, the Citizens Advisory Committee would be comprised of members of the public. Noting this is not currently a budgeted initiative, depending on the timeframe and process directed by Council, staff will return to report any resource implications.
ENVIRONMENTAL REVIEW
Not a project.
ATTACHMENTS
Attachment A: Policy and Services Committee February Report Including the December Colleagues’ Memo and Legal Analysis Memo Regarding Council Member Compensation above SB 329 Guidelines
APPROVED BY:
Ed Shikada, City Manager
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CITY OF PALO ALTO
Policy & Services Committee
Special Meeting
Tuesday, February 13, 2024
6:30 PM
Agenda Item
4. City Council Referral to Discuss the Creation of a Citizen Advisory Committee to Evaluate City Council Member Compensation above SB 329 Guidelines Item 13
Attachment A - Policy and
Services February Report
Including the December
Colleagues’ Memo and
Legal Analysis Memo
Regarding Council
Member Compensation
above SB 329 Guidelines
Item 13: Staff Report
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4 Packet Pg. 309 of 333
Policy & Services Committee
Staff Report
From: City Manager
Report Type: ACTION ITEMS
Lead Department: City Manager
Meeting Date: February 13, 2024
Report #:2402-2632
TITLE
City Council Referral to Discuss the Creation of a Citizen Advisory Committee to Evaluate City Council Member Compensation above SB 329 Guidelines
RECOMMENDATION
Staff recommends the Policy and Services Committee discuss and respond to the City Council referral for the creation of a Citizen Advisory Committee to evaluate City Council Member compensation above SB 329 guidelines.
BACKGROUND AND ANALYSIS
The City Council heard this Colleagues’ Memo on December 4, 2023 and took the following action:
Item 13
Attachment A - Policy and
Services February Report
Including the December
Colleagues’ Memo and
Legal Analysis Memo
Regarding Council
Member Compensation
above SB 329 Guidelines
Item 13: Staff Report
Pg.
5 Packet Pg. 310 of 333
Item #3 of the December City Council motion directed the Policy and Services Committee to discuss and recommend whether a Citizen Advisory Committee should be set up and other details such as the size of the Advisory Committee, how it should be composed, and other relevant details. The original Colleagues’ Memo and Legal Analysis Memo are both attached to this cover page.
Staff will be prepared to support the Committee discussion by noting Brown Act requirements that may apply as well as timelines for ballot measures.
ATTACHMENTS
Attachment A: December Colleagues’ Memo and Legal Analysis Memo Regarding Council Member Compensation above SB 329 Guidelines
APPROVED BY:
Ed Shikada, City Manager
Item 13
Attachment A - Policy and
Services February Report
Including the December
Colleagues’ Memo and
Legal Analysis Memo
Regarding Council
Member Compensation
above SB 329 Guidelines
Item 13: Staff Report
Pg.
6 Packet Pg. 311 of 333
CITY COUNCIL
Colleague’s Memo
Sponsor(s): Council Member Lauing and Vice Mayor Stone
Meeting Date: December 4, 2023
Report #: 2311-2241
TITLE
Colleague’s Memo - Adjustment to City Council Compensation
RECOMMENDATION
1. Raise monthly City Councilmember salaries, at a minimum, to levels set by SB 329.
In June of this year Governor Newsom signed SB 329 (Dodd) which allows cities to set council salaries according to the size of each city’s population. Based on the population of Palo Alto, SB 329 allows salaries to be set at $1600/month consistent with this new law. There is also a process for considering future increases over time by Council action. The motivation for Senator Dodd and his colleagues was precisely to make it more appealing to a broader cross section of citizens to stand for public office as well as to recognize the true responsibilities of councilmembers in a city as measured by size. Due to procedural requirements, approving this recommendation would raise Councilmember salaries effective January 1, 2025 (and not before). If this action is taken now, candidates who run in 2024 for City Council will know that, upon taking office in January 2025 their monthly compensation will be $1600. Our hope is to attract a more socioeconomically diverse group of candidates in the 2024 election. Sitting Councilmembers in 2025 will also be increased to that amount.
2. Allow City Councilmembers to participate in the city’s employee childcare assistance benefit as applicable.
This new program for city workers should be broadened to include Councilmembers with this need. This benefit reduces a high out-of-pocket cost for the Councilmember for all of the meetings a member needs to attend – including during after school hours and for weekend meetings/events. By definition this benefit would be targeted to younger council members with pre-school or school age children – likely a renter’s demographic. It eliminates a financial burden a prospective candidate would have to address upon joining council. This is not extra salary, but it is a benefit.
3. Consider amending our charter to allow Palo Alto to set Councilmember compensation above SB 329- guidelines.
Attachment A -
Colleague's Memo and
Legal Memo; Dec 2023
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Attachment A - Policy and
Services February Report
Including the December
Colleagues’ Memo and
Legal Analysis Memo
Regarding Council
Member Compensation
above SB 329 Guidelines
Item 13: Staff Report
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Palo Alto is among the most affluent and highest cost areas in California. As stated above, we are different than many other cities of our population size with our own utilities, a regional water treatment facility, and an airport. Add to that our extensive open space and parklands and a children’s zoo and many other amenities we have which expands the scope of decision- making a councilmember has. In addition, Palo Alto must add over 6000 new homes in the next seven years which will add about 15,000 more residents. A $1600 City Council salary ($19,200 annually) may not be enough to influence a decision to run for council given the time investment and the high expectations of our constituents across this broad scope of responsibilities. And it may not be fair.
How should we set compensation? Here are a few data points for consideration.
A. Minimum wage in Palo Alto is $17.25 per hour translating to $35,880.00 per year for a full-time job.
B. A midlevel senior staff member across the board in the city makes about $162,229 per year.
C. A State Assembly member makes $122,694/year + per diem.
What is the appropriate compensation level for the job to be done and to attract more diversity in candidates for City Council?
BACKGROUND
The duties of a Palo Alto city councilmember require a broad skill set and an extraordinary commitment of time and effort. Many hours are required to perform the job while representing Palo Alto residents. Total hours per week are generally estimated to be in a range of 20-30+ hours across a seven-day week. This includes preparation for- and participation in- council meetings, many standing and ad hoc committee meetings, liaison assignments to commissions and outside agencies, meetings with staff, colleagues, residents, businesses, developers, public appearances, and more. The roles of Mayor and Vice Mayor require even more personal time commitment.
Unlike many cities, Palo Alto owns its own utilities, regional water treatment facility, and an airport. There are approximately 1000 city employees with a $1 billion budget.
In 2014 residents voted in a ballot measure to reduce the size of the council to seven from nine members, which became effective in 2018. All of the same work still needs to be done. The work is covered by spreading the workload among the seven council members.
The base salary for a councilmember is currently $1000/month.
CONSIDERATIONS
I. Council Member Demographics for Better Representation Item 13
Attachment A - Policy and
Services February Report
Including the December
Colleagues’ Memo and
Legal Analysis Memo
Regarding Council
Member Compensation
above SB 329 Guidelines
Item 13: Staff Report
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8 Packet Pg. 313 of 333
Many councilmembers over the last two decades have been upper income residents with work flexibility and/or residents who are post-career without pressing income obligations. A good number of councilmembers have been empty-nesters. They have served the city admirably and we can expect this demographic to continue to produce excellent council members eager to serve the city.
Palo Alto is committed to diversity in all areas of city life from our residents to our city staff to our commissioners and our council members. We welcome residents of all ethnicities and income levels. We also want our city council to represent the varied demographics we now have and the many new residents who will come to PA based on our initiatives to create hundreds of new affordable homes for lower income residents. Historically, few lower income workers have chosen to run for city council. This may be the result of less flexible work hours.
In some cases, “free time” for public service is constrained by the demands of younger families to care for.
II. Council Member Compensation Relative to Workload
The Councilmember’s job is not full-time. But it is highly time intensive. Anecdotally, some residents have argued over the years that it should a be full-time job and that Councilmembers should be fairly compensated for the broad skills required in that full-time job. That option may have merit but is not under consideration as part of this colleagues’ memo. The issue, however, is to assess what fair compensation should be for the responsibilities of the role, the workload required, and to attract a broader spectrum of candidates.
FISCAL IMPACT
A change in Councilmember total compensation would be incorporated into the City’s General Fund budget; FY 2024 Adopted General Fund Budget is $279.6 million. Costs would consist of the change in salary plus the cost for all benefits, which conservatively amounts to approximately 63% of salary. Benefits will be charged based on the choices made by individuals and may include: pension, retiree medical, workers compensation, Medicare, healthcare (dental, vision, medical), and life insurance.
ATTACHMENTS
Attachment A - Memorandum on Council Member Salaries
Item 13
Attachment A - Policy and
Services February Report
Including the December
Colleagues’ Memo and
Legal Analysis Memo
Regarding Council
Member Compensation
above SB 329 Guidelines
Item 13: Staff Report
Pg.
9 Packet Pg. 314 of 333
November 14, 2023