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HomeMy WebLinkAbout#13 Qualus Contract AGENDA ITEM #13 Public Utility District m MEETING DATE: April 3, 2024 TO: Board of Directors FROM: Keith Renshaw, Electric Engineering Manager Jared Carpenter, Electric Utility Director SUBJECT: Consideration for Approval of a Professional Services Contract for Electric Engineering Support with Qualus, LLC APPROVED BY: Brian C. Wright, General Manager RECOMMENDATION: Authorize the General Manager to execute a professional services contract for electrical engineering support for 2024 with Qualus Services, LLC. This contract shall be substantially the form presented, subject to legal counsel review and/or minor administrative edits as determined necessary. BACKGROUND: The Electric Department has contracted annually with Qualus Services, LLC (Qualus), formerly known as Tri Sage Consulting (Tri Sage), for engineering professional services since 2017. On December 28, 2022, the District was notified that Tri Sage would merge with Qualus and thereafter do business as Qualus. In recent history, the District has engaged engineering support services from Tri Sage for various tasks, including design work for the most recent rebuild and rehabilitation work at Truckee Substation. Over the past few years, staff have been working with Tri Sage/Qualus to develop and define the scope of work, as well as beginning engineering design for the Martis Valley Substation rebuild project. That work is currently in progress. On December 7, 2022, before the District was notified of the merger, the Board approved the District's routine annual procurements for FY23. Included was the procurement for Professional Services from Tri Sage Consulting (Tri Sage) for Electric Engineering Support for a not to exceed authorization amount of $300,000 for FY23. On June 7, 2023, the Board approved the General Manager to execute a Professional Services contract for Electric Engineering Support with Qualus. On June 15, 2023, the District was notified that Qualus' legal department would not execute a professional Page 1 of 3 Page 31 of 159 service contract with the District unless additional contract language was added. At that time, staff consulted District Counsel to review Qualus' proposed contract language additions. District Counsel advised staff that the proposed additional language did constitute a material change to the District's standard contract language, and therefore would need approval by the Board to execute a contract with Qualus that includes the proposed additions. On June 29, 2023, after further discussions between staff and Qualus, Qualus agreed to sign the District's standard contract for the remainder of 2023, as long as the District agreed to consider adding the proposed contract language to the contract for 2024. ANALYSIS AND BODY: On December 6, 2023, the Board approved the District's routine annual procurements for FY24. Included was the procurement for Professional Services from Qualus for Electric Engineering Support for a not to exceed authorization amount of $400,000 for FY24. To continue work in progress on District projects in 2024, the District is required to execute a Professional Services contract with Qualus for 2024. Because Qualus has completed such a significant amount of design work on electric capital projects budgeted for FY24 and FY25, it is staff's recommendation for the District to continue work with Qualus for 2024. The additional contract language Qualus proposes would constitute a new section to mutually waiving consequential damages associated with any services provided by Qualus under the professional service contract. The proposed contract language is shown on page 8 of Attachment 1. Staff recommends the Board authorize the General Manager to execute a Professional Services Contract for Electric Engineering support for 2024 with Qualus Services, LLC in substantially the form presented, contingent upon legal counsel review and/or minor administrative edits as determined necessary. GOALS AND OBJECTIVES: District Code 1 .05.020 Objectives: 1. Responsibly serve the public. 6. Manage the District in an effective, efficient, and fiscally responsible manner. District Code 1 .05.030 Goals: 1. Manage for Financial Stability and Resiliency 2. Environmental Stewardship: Create a sustainable resilient environment for all our communities. FISCAL IMPACT: There is no direct fiscal impact associated with this agenda item. On December 6, 2023, as part of routine annual procurements, the Board approved a not to exceed contract authorization of$400,000 for FY24 for Professional Engineering Support Page 2 of 3 Page 32 of 159 Services with Qualus. Staff's recommendation for this agenda item is requesting the Board to consider authorizing the General Manager to execute a Professional Services contract with Qualus which includes additional updatedl contract language in substantially the form presented (Attachment 1), contingent upon legal counsel review and/or minor administrative edits as determined necessary. ATTACHMENTS: 1. Agreement for Professional Services - Special Clause Added Page 3 of 3 Page 33 of 159 AGREEMENT FOR PROFESSIONAL SERVICES TRUCKEE DONNER PUBLIC UTILITY DISTRICT 11570 Donner Pass Road Truckee,California 96161 Telephone(530)587-3896 Facsimile(530)587-1189 Date: Project Name: CONSULTANT: The terms of this Agreement are contained in the body of the Agreement and in Attachments A through D. Each attachment is incorporated herein by reference and becomes an integral part of this Agreement between the parties when the Agreement is signed. IN THE EVENT THAT THERE IS ANY INCONSISTENCY BETWEEN TERMS AND PROVISIONS IN THE BODY OF THIS AGREEMENT AND TERMS AND CONDITIONS IN THE ATTACHMENTS, THE TERMS AND PROVISIONS IN THE BODY OF THIS AGREEMENT CONTROL OVER ANY INCONSISTENT TERM OR PROVISION IN THE ATTACHMENTS. For your protection,make sure that you read and understand all provisions before signing. Instructions: Sign and return original. Upon acceptance by the TRUCKEE DONNER PUBLIC UTILITY DISTRICT, a copy will be signed by the District's authorized representative and returned to you. Insert the name/s of your authorized representative(s)in the place provided. 1.0 TERM OF THE AGREEMENT 1.1 This Agreement shall be effective on the date that it is executed by the District. 1.2 The Consultant shall commence the performance of the Professional Services immediately after the fee and schedule are agreed upon and a written Notice To Proceed is issued. Time is of the essence of this Agreement. Failure to meet the schedule contained in this Agreement shall constitute a default by the Consultant. 1.3 This Agreement shall expire on: 2.0 CONSULTANT'S OBLIGATIONS AND SCOPE OF WORK ATTACHMENT A 2.1 Consultant shall provide the professional services which are described in ATTACHMENT A, hereinafter referred to as"Professional Services." 2.2 Consultant shall perform all the tasks required to accomplish the Professional Services in conformity with the applicable requirements of Federal, State and local laws in effect at the time that the scope of work is substantially completed by the Consultant. The Consultant shall comply with applicable standards of professional care in the performance of the Professional Services. Where any circumstance exists for which the Consultant must make a judgment that could result in a materially different change in condition, the Consultant shall advise the Contract Officer in advance and request specific direction. 2.3 The Consultant shall,without additional compensation,correct or revise any Professional Services that do not meet the standard of professional responsibility. 2.4 The District's review, approval or acceptance of, or payment for, the services required under this Agreement shall not be construed to operate as a release or waiver of any rights of the District under this 1 Page 34 of 159 Agreement or of any cause of action arising out of Consultant's performance of this Agreement, and Consultant is responsible to the District for all damages to the District caused by the Consultant's performance of any of the services under this Agreement. 2.5 Consultant shall maintain all of its records related to the project for a minimum of five (5) years from the date of final payment. Consultant shall permit representatives of the District to review all project related records. 2.6 Consultant shall not be responsible for means, methods, techniques, sequences or procedures of construction selected by construction contractor for the project or the health or safety precautions and programs incident to the work of such contractor, and shall not be responsible for construction contractor's failure to carry out work in accordance with the contract documents. Construction contractor is solely and completely responsible for jobsite conditions including the safety of all persons and property. 3.0 PAYMENT AND SCHEDULE OF SERVICES(ATTACHMENTS B and C) 3.1 The amount of payment to Consultant for providing the Professional Services is set forth in ATTACHMENT B. No payment shall be allowed for unless specifically described in ATTACHMENT B. 3.2 Consultant shall not be entitled to any additional fees for work incidental to the design, for any design clarifications,or for changes resulting from errors or omissions by the Consultant or any Sub-Consultant. 3.3 A Project Schedule showing all milestones has been developed by the Consultant and is attached as ATTACHMENT C. 4.0 DISTRICT'S OBLIGATIONS 4.1 District shall furnish the required information and services and shall render approvals and decisions expeditiously to allow the orderly progress of the Consultant's services as shown on ATTACHMENT C. 4.2 The District's General Manager or a designated District Representative shall serve as the District's "Contract Officer" for this Agreement and has the authority to execute this Agreement, direct the Consultant, approve actions, request changes, and approve additional services. Any obligation of the District shall be the responsibility of the Contract Officer. Excepting the provisions pertaining to dispute resolution, no other party shall have any authority under this Agreement unless specifically delegated in writing. 5.0 SUBCONTRACTING(ATTACHMENT D) 5.1 The name and location of the place of business of each Sub-Consultant that Consultant will use to perform work or render service to the Consultant in performing this Agreement is contained in ATTACHMENT D. No change to any Sub-Consultant shall be made without the written approval of the Contract Officer. 5.2 If Consultant subcontracts for any of the work to be performed under this Agreement, Consultant shall be as fully responsible to the District for the acts and omissions of Consultant's Sub-Consultants and for the persons either directly or indirectly employed by the Sub-Consultants, as Consultant is for the acts and omissions of Consultant and persons directly employed by Consultant. Nothing contained in the Agreement shall create any contractual relationship between any Sub-Consultant of Consultant and the District. Consultant shall bind every Sub-Consultant to the terms of the Agreement applicable to Consultant's work unless specifically noted to the contrary in the subcontract in question and approved in writing by the Contract Officer. 5.3 The District may unilaterally reduce the scope of work to be performed by the Consultant. Upon doing so, District and Consultant agree to meet and confer in good faith to negotiate a deductive change order. 2 Page 35 of 159 6.0 CHANGES TO THE SCOPE OF WORK The Consultant shall not perform work in excess of the Professional Services without the prior written approval of the Contract Officer. All requests for extra work shall be by written Change Order submitted to the Contract Officer and signed prior to the commencement of such work. Fees for additional work will be negotiated on a fixed fee basis. 7.0 VERBAL AGREEMENT OR CONVERSATION No verbal agreement or conversation with any officer, agent or employee of the District, either before, during or after the execution of this Agreement, shall affect or modify any of the terms or obligations herein contained nor shall such verbal agreement or conversation entitle Consultant to any additional payment whatsoever unless approved by the Contract Officer. 8.0 TERMINATION OF AGREEMENT 8.1 In the event of Consultant's failure to prosecute,deliver, or perform the Professional Services,or where the Consultant fails to perform the work in accordance with the project schedule (ATTACHMENT C), the District may terminate this Agreement for cause by notifying Consultant by certified mail of said termination. Thereupon, Consultant shall cease work and within five (5) working days, assemble all documents owned by the District and in Consultant's possession,and deliver said documents to the District, and ensure that all work in progress is placed in a safe and protected condition. The Contract Officer shall make a determination of the percentage of work that Consultant has performed that is usable and of worth to the District. Based upon that finding, the Contract Officer shall determine any final payment due to Consultant. 8.2 This Agreement may be terminated by the District, without cause, upon the giving of fifteen (15) days written notice by certified mail to the Consultant. Prior to the fifteenth(15th)day following the giving of the notice, the Consultant shall cease work, assemble all documents owned by the District and in Consultant's possession and deliver said documents to the District, and ensure that all work in progress is placed in a safe and protected condition. The Contract Officer shall make a determination of the percentage of work that Consultant has performed that is usable and of worth to the District. Based upon that finding,the Contract Officer shall determine any final payment due to Consultant. 9.0 PROFESSIONAL RELATIONSHIP. Consultant shall serve as the District's professional representative with respect to the Professional Services. 10.0 PARTIES TO ACT IN GOOD FAITH. District and Consultant agree to cooperate with each other in order to fulfill their responsibilities and obligations under this Agreement. Both District and Consultant shall endeavor to maintain good working relationships among members of the project team. 11.0 LIMITATION ON DIRECTIVES TO CONSULTANT. CONSULTANT shall not accept direction or orders from any person other than the Contract Officer or the person(s)whose name(s) is (are) inserted on Page 9 as"other authorized representative(s)." 12.0 PERFORMANCE OF WORK BY THIRD PARTIES. District acknowledges that Consultant is not responsible for the performance of work by third parties including, but not limited to, the construction contractor and its sub-contractors. 13.0 CHANGES IN SCOPE OF WORK--EXTRA SERVICES. District agrees that if District requests services not specified in the scope of services described in this Agreement, District will pay for all such additional services as extra services, in accordance with Consultant's billing rates utilized for this Agreement. Any change in the scope of the Professional Services to be done, method of performance, nature of materials or price thereof,or to any other matter materially affecting the performance or nature of the Professional Services will not be paid for or accepted unless such change, addition or deletion is approved in advance, in writing by a supplemental agreement executed by the District's "authorized 3 Page 36 of 159 representative(s)". Consultant's "authorized representative(s)" has (have) the authority to execute such written change for Consultant. 14.0 PERMITS. Permits required by governmental authorities will be obtained at Owner's expense, and Consultant will comply with applicable local, state, and federal regulations and statutes including Cal/OSHA requirements. 15.0 TERMS OF PAYMENT. Payment,unless otherwise specified in Attachment C, is to be thirty (30) days after acceptance by the District. For Professional Services performed by the Consultant, the District shall pay the Consultant in accordance with monthly statements submitted by the Consultant based upon the percentage of work completed during the preceding month. Payment for extra services shall be based on monthly statements submitted by the Consultant for the extra services performed by the Consultant during the proceeding month. The Consultant shall be paid interest on payments due from the District which are not received within thirty (30) days of the date of billing. The interest rate shall be one percent (1%)per month on the unpaid balance or the maximum legal rate that the District can pay,whichever is less. 16.0 INDEMNIFICATION. Consultant shall defend, indemnify and hold the District, its directors, officers, employees, and authorized volunteers harmless from losses, liabilities, expenses, including reasonable attorney's fees,damages and costs arising out of personal injury,death,or property damage,but only to the extent such losses, liabilities, expenses, damages and costs arise out of, pertain to or relate to the active negligence, recklessness or willful misconduct of Consultant under this Agreement. Consultant shall also defend itself against any and all liabilities, claims, losses, damages, and costs arising out of or alleged to arise out of Consultant's performance or non-performance of the work hereunder, and Consultant shall not tender such claims to District nor to its directors, officers,employees,or authorized volunteers,for defense or indemnity. Further, as respects Consultant's operations (as opposed to Consultant's Professional Services),Consultant shall also provide the District a defense,and indemnify and hold the District harmless from losses,liabilities,expenses,including reasonable attorney's fees,damages and costs through and as an additional insured to Consultant's commercial general liability policy. 17.0 WORKERS' COMPENSATION INSURANCE. By his/her signature hereunder, Consultant certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and that Consultant will comply with such provisions before commencing the performance of the Professional Services under this Agreement. Consultant and Sub- Consultants will keep workers' compensation insurance for their employees in effect during all work covered by this Agreement. 18.0 PROFESSIONAL LIABILITY INSURANCE. Consultant will file with the District, before beginning Professional Services, a certificate of insurance satisfactory to the District evidencing professional liability coverage of not less than $1,000,000 per claim and annual aggregate, requiring thirty (30) days notice of cancellation(10 days for non-payment of premium)to the District. Any insurance, self-insurance or other coverage maintained by the District, its directors, officers, employees, or authorized volunteers shall not contribute to it. Coverage is to be placed with a carrier with an A.M. Best rating of no less than A-:VII,or equivalent, or as otherwise approved by the District. The retroactive date (if any)is to be no later than the effective date of this Agreement. In the event that the Consultant employs other Consultants (Sub- Consultants) as part of the work covered by this Agreement, it shall be the Consultant's responsibility to require and confirm that each Sub-Consultant meets the minimum insurance requirements specified above. 19.0 GENERAL LIABILITY INSURANCE. Consultant will file with the District, before beginning Professional Services, certificates of insurance satisfactory to the District evidencing general liability coverage of not less than $1,000,000 per occurrence ($2,000,000 general and products-completed operations aggregate (if used)) for bodily injury, personal injury and property damage; auto liability of at least $1,000,000 for bodily injury and property damage each accident limit; workers' compensation (statutory limits) and employer's liability ($1,000,000) (if applicable); requiring thirty (30) days for non- payment of premium) notice of cancellation to the District. Any insurance, self-insurance or other coverage maintained by the District, its directors, officers, employees, or authorized volunteers shall not 4 Page 37 of 159 contribute to it. The general liability coverage shall give the District,its directors,officers,employees, and authorized volunteers insured status using ISO endorsement CG2010, CG2033,or equivalent. Coverage is to be placed with a carrier with an A.M. Best rating of no less than A-:VII, or equivalent, or as otherwise approved by the District. In the event that the Consultant employs other Consultants (Sub-Consultants) as part of the work covered by this Agreement, it shall be the Consultant's responsibility to require and confirm that each Sub-Consultant meets the minimum insurance requirements specified above. For any claims related to the Professional Services, the Contractor's insurance coverage will be primary insurance with respect to the District's insurance. The insurance maintained by the District shall be excess of the Contractor's insurance and will not contribute with it. 20.0 CONTINUATION OF INSURANCE COVERAGE. If any of the required coverages expire during the term of this Agreement,the Consultant shall deliver the renewal certificate(s)including the general liability additional insured endorsement to the District at least ten(10)days prior to the expiration date. 21.0 CONFLICT OF INTEREST. Consultant agrees that it will not undertake work for any other principal or client which could pose a conflict of interest or provide for the utilization of the experience,knowledge and work product produced as a result of this Agreement for the benefit of a party whose interests may be adverse to those of the District. Consultant agrees that it will not undertake work in which a conflict of interest may arise for a period of ten(10)years after the date of execution of this Agreement without first exploring the nature of the work and the potential for conflict of interest with the interest of the District or potential disadvantageous results of the undertaking or the utilization of the District's work products. If the District reasonably determines that there could be a conflict of interest or will be a conflict of interest, Consultant agrees not to undertake such work or to offer to perform such work until the issue has been resolved if Consultant shall disagree. 22.0 WORK PRODUCT. Consultant agrees that if any work product involves the development of methodologies, computer programs, or statistical or data gathering methodology, that work product methodology, computer program, coding system, or similar method for gathering, compiling or appraising data shall be a portion of the work product of Consultant which is owned by and shall be provided to District upon its request. Consultant agrees that District, upon payment in full for services rendered and expenses incurred, shall be entitled to all photographs, notes, maps, calculations, observations, computer programs, runs or compilations, statistics,preliminary design, final design, work drawings, shop drawings or calculations, or any and all other "work product" of Consultant, and upon early termination or termination in due course or thereafter, may request that such materials may be copied and the copies retained by Consultant and the originals provided to District. Any use, re-use or modification of Consultant's instruments of service without Consultant's participation shall be at District's sole risk, and District agrees to indemnify, defend and hold Consultant harmless from any claims, liabilities, damages or expenses,including reasonable attorney's fees,to the extent arising out of such use,re-use or modification. District shall also receive any and all documentation on computer diskette compatible with District word processing or other computer programs, including input data as well as output data. The reasonable costs of copying shall be a Project Cost payable by District. Files in electronic media format or text, data, graphic or other types that are furnished by Consultant to the District are only for convenience of the District. Any conclusion or information obtained or derived from such electronic files will be at the user's sole risk. When transferring documents in electronic media format,Consultant makes no representations as to long-term compatibility, usability, or readability of documents resulting from the use of software application packages, operating systems or computer hardware differing from those in use by consultant at the beginning of this assignment. 23.0 DISCLOSURE OF USE OF WORK PRODUCT OR CONSULTANT. District and Consultant agree that in providing the Professional Services, Consultant will gain information, experience and methodologies which may be usable in other work of Consultant, so long as that other work does not cause a conflict of interest or work to the disadvantage of District. The District will have no claims for the monetary value of the experience,methodology, or use of the work methods for other work undertaken by Consultant. However, Consultant agrees that it will not publish any articles,provide any interview, make public comments, or supply copies of any work product of Consultant done for District except in accordance with valid legal process served upon it or pursuant to the written direction of Consultant. In 5 Page 38 of 159 those circumstances in which District notifies Consultant in writing that a matter shall be treated as subject to this provision until further order of the District, Consultant will not provide any of this work product to any third party. District is a governmental entity and may be subject to the Public Records Act,Freedom of Information Act, or other terms and provisions of the law, depending upon the circumstances. Consultant agrees that the determination of that applicability shall be solely within the authority of District, and Consultant shall not make work product or other materials available to third parties or other governmental agencies unless directed to do so by District. The purpose of this provision is to establish a method to provide persons or agencies public information that they are entitled to receive while keeping uniform records about the availability of such materials, the dates that such information is provided to persons entitled to receive it, and to ensure that complete response is made to valid legal requests for information, whether pursuant to administrative, legal or Public Records Act requests. Nothing in this Agreement shall render the records, documents or materials of Consultant as a public record available for inspection or review,except to the extent required by law. 24.0 DISPUTE RESOLUTION. The parties agree that if any dispute should arise under the terms and provisions of this Agreement,the parties agree first to try,in good faith,to settle the dispute by mediation, before resorting to court action. The costs of mediation shall be borne equally by the parties. Neither party shall file a court action without first meeting in mediation and making a good faith attempt to reach a mediated resolution. The mediation shall be conducted in Truckee, California, unless the parties agree to conduct it in a different location. If, for any dispute or claim to which this paragraph applies, any party commences court action without first attempting to resolve the matter through mediation or refuses to mediate after a written request has been made,then that party shall not be entitled to recover attorney fees, even if they would otherwise be available to that party in any such action. 25.0 FORCE MAJEURE. If either party hereto shall be delayed or prevented from the performance of any act required hereunder by reason of acts of God, labor troubles, inability to procure materials, restrictive governmental laws or regulations of the United States or any state or political subdivision thereof or other cause without fault and beyond the control of the party obligated, specifically excepting any asserted financial difficulty including fluctuations of local and national economics, and fluctuations in the price of precious metals, performance of such act shall be excused for the period equivalent to the period of such delay, specifically provided that the total period(s) of delay permitted under this paragraph will not exceed five(5)years. 26.0 SEVERABILITY. If any term, condition or covenant of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this agreement shall be valid and binding on District and Consultant. 27.0 CHOICE OF LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of California. 28.0 NO ASSIGNMENT. Consultant shall not assign this Agreement without the prior written consent of the Contract Officer. 28.0 ATTORNEY'S FEE.The prevailing party in any action to enforce or interpret this Agreement shall be entitled to recover its attorneys'fees and costs,including expert fees. 29.0 VENUE.Any action to enforce or interpret this Agreement shall be commenced and maintained only in the Superior Court in and for the County of Nevada,State of California,if in state court,or in the Federal District Court for the Eastern District of California,if in federal court." 30.0 WHOLE AND ENTIRE AGREEMENT.This Agreement contains the entire agreement between District and Consultant relating to the project and the provision of services for the project. Any prior agreements, promises,negotiations or representations not expressly set forth in this agreement are of no force or effect. Subsequent modifications to this Agreement shall be in writing and signed by both District and Consultant. 6 Page 39 of 159 31.0 NO WAIVER OR DISCLAIMER. District's or Consultant's waiver of any term, condition or covenant shall not constitute the waiver of any other term, condition or covenant. District's or Consultant's waiver of any breach of this Agreement shall not constitute the waiver of any other breach of the Agreement. 32.0 BINDING UPON HEIRS, SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the heirs,executors,administrators,successors and assigns of District and Consultant. 33.0 STATUS OF CONSULTANT. Consultant shall perform the services provided for herein in a manner of Consultant's own choice, as an independent contractor and in pursuit of Consultant's independent calling, and not as an employee of the District. Consultant shall be under control of the District only as to the result to be accomplished and the personnel assigned to the project. Consultant shall confer with the District at a mutually agreed frequency and inform the District of incremental work/progress as well as receive direction from the District. 34.0 ASSIGNMENT OF CONTRACT AND NAMED INDIVIDUALS. Consultant agrees that the individuals named below shall be personally assigned to the PROJECT to provide supervision and have responsibility for the work during the entire term of this Agreement. No substitutions to these named individuals shall be made without prior approval of the Contract Officer: 35.0 COVENANT AGAINST CONTINGENT FEES. Consultant warrants that it has not employed or retained any company or person, other than a bona fide employee working for Consultant, to solicit or secure this Agreement,and that Consultant has not paid or agreed to pay any company or person,other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from,the award or making of this Agreement. For breach or violation of this warranty, the District shall have the right to terminate this Agreement without liability or, at the District's discretion to deduct from the Agreement price or consideration, or otherwise recover the full amount of such fee,commission,percentage,brokerage fee,gift or contingent fee. 36.0 ACCOUNTING RECORDS. Consultant shall keep records of the direct reimbursable expenses pertaining to the Professional Services and the records of all accounts between the Consultant and Sub- Consultant. Consultant shall keep such records on a generally recognized accounting basis. These records shall be made available to the Contract Officer, or the Contract Officer's authorized representative, at mutually convenient times,for a period of five(5)years from the completion of the work. 37.0 NOTICES Any notices to be given under this Agreement,or otherwise,shall be served by First Class mail. The address of the District,and the proper person to receive any notice on the District's behalf,is: TRUCKEE DONNER PUBLIC DISTRICT 11570 Donner Pass Road Truckee,California 96161 ATTN: District General Manager TEL.NO.(530)587-3896; FAX NO. (530)587-1189 The address of the Consultant,and the proper person to receive any notice on the Consultant's behalf,is: 38.0 PERIODIC REPORTING REQUIREMENTS The Consultant shall provide a written status report of the progress of the work on a monthly basis that shall accompany the Consultant's payment invoice. The status report shall, as a minimum,report the work 7 Page 40 of 159 accomplished to date,describe any milestones accomplished, show and discuss the results on any testing or exploratory work,provide a schedule update, and if not in accordance with the original schedule, describe how the Consultant intends to get back on the original schedule. The status report shall also describe any problems or recommendations to increase the scope of the work, and provide any other information which may be requested by the District 39. CONSEQUENTIAL DAMAGES Notwithstanding anything to the contrary contained in this agreement, or provided under any applicable law, neither party shall be liable, either in contract or in tort, for any consequential, incidental, indirect, special, or punitive damages or lost profits arising out of or in connection with this agreement, whether or not the possibility of such damages has been disclosed to the other party in advance or could have been reasonably foreseen by such other party, provided that the limitation of liability set forth in this section shall not apply to either party's indemnification obligations hereunder with respect to third parry claims ACCEPTED: TRUCKEE DONNER PUBLIC CONSULTANT UTILITY DISTRICT Signature Signature By: Brian C.Wright By: Title: General Manager Title: Co: Truckee Donner Public Utility District Co: Date: Date: Other authorized representative(s): Other authorized representative(s): ATTACHMENT A - SCOPE OF WORK ATTACHMENT B -PAYMENT FOR SERVICES ATTACHMENT C -SCHEDULE OF SERVICES ATTACHMENT D -LISTING OF SUB-CONSULTANTS 8 Page 41 of 159 ATTACHMENT A SCOPE OF WORK i Page 42 of 159 ATTACHMENT B PAYMENT FOR SERVICES A. PAYMENT FOR SERVICES: Payments to the Consultant for the Professional Services shall be made in the form of monthly advances due for each Phase based on a percentage of the total fee. The percentage of completion of a Phase shall be assessed in the sole discretion of the Contract Officer or designated representative. All invoices submitted by the Consultant shall show an hourly reconciliation of time spent on each Phase. The original invoice shall be provided for any subcontracted services. Normal processing time for payments is thirty(30)days. For performance of each Phase or portion thereof as identified below, District shall pay a fixed fee associated with the Phase of the Professional Services in the amount and at the time or milestones set forth. Consultant shall not commence Services under any Phase, and shall not be entitled to compensation for the Phase, unless District shall have issued a Notice to Proceed to the Consultant as to the Phase. TOTAL NOT TO EXCEED FEE $ ii Page 43 of 159 ATTACHMENT C SCHEDULE OF SERVICES iii Page 44 of 159 ATTACHMENT D LISTING OF SUB-CONSULTANTS Listed below are all Sub-Consultants that the Consultant plans to employ to perform work under this Agreement. No change is allowed without the prior approval of the Contract Officer. Sub-Consultants are paid through the Consultant. SUB-CONSULTANT SUB-CONSULTANT SUB-CONSULTANT SUB-CONSULTANT iv Page 45 of 159