Request for Proposals

Request for Proposals 2014-RFP-13 Electrical Engineering Support and Consulting Services Date Issued: June 10, 2014 The City invites your company to provide a Proposal to provide Electrical Engineering Support and Consulting Services to Electric Utility Optional Site Visit: If required, please contact Shawn Filice, Electric Utility Manager at 250-490-2537 or shawn.filice@penticton.ca Proposals will be accepted no later than 2:00 p.m. Friday, June 27, 2014 and must be clearly marked 2014-RFP-13 Electrical Engineering Support and Consulting Services and be delivered by way of hand delivery, courier, mail, e-mail or fax to: City Purchasing Department City of Penticton 616 Okanagan Avenue East Penticton, BC V2A 3K6 purchasing@penticton.ca Fax (250) 490-2557 The City assumes no risk or responsibility whatsoever that any fax or email will be received as required herein and shall not be liable to any bidder if for any reason an electronic bid is not properly received. If you have any questions regarding this Request for Proposal, please send them via email to cathy.ingram@penticton.ca Cathy Ingram Purchasing Manager NOTE: Should any potential bidders download this Request for Quotation, it is the proponent's responsibility to check for Addenda which will be posted on the City of Penticton's website at www.penticton.ca/purchasing

1.0 SCOPE OF THE PROPOSAL 1.1 INTRODUCTION The City of Penticton (the City ) owns and operates a medium sized Electric Utility servicing approximately 17,000 residential and commercial customers through a high voltage distribution system of 8 KV and 12 KV circuits, via 4 substations. Utility staff occasionally require professional Electrical Engineering support for operational and construction issues. The City is seeking an Electrical Engineering firm to provide these services on an as-required, hourly-fee basis. 2.0 INTERPRETATION 2.1 DEFINITIONS a. Best Value means the value placed upon quality, service, past performance and price. b. City means The Corporation of the City of Penticton c. City Representative means the representative or appointee engaged by the City to supervise the Work. d. Contract means an agreement with specific terms between the City and the Successful Proponent. e. Contract Documents means the executed agreement between the Successful Proponent and the City or the Purchase Order issued by the City. f. must, mandatory or required means a requirement that must be met in order for a Proposal to receive consideration. g. Preferred Proponent means the Proponent who submitted the favoured Proposal. h. Premises shall mean building(s) or part of a building with its appurtenances. i. "Proposal" shall mean the Proponent's submission to the RFP. j. Proponent means a party submitting a Proposal to this RFP. k. RFP means the Request for Proposal. l. Request for RFP (RFP) includes the documents listed in the index of the RFP and any modifications thereof or additions thereto incorporated by addenda before the close of the RFP. m. should or desirable means a requirement having a significant degree of importance to the objectives of the RFP. n. Special Conditions means the special conditions, which are included in the RFP. o. Specifications means the specifications which are included in the RFP. p. Subcontractor includes, inter alia, a person, firm or corporation having a Contract with the Successful Proponent for the execution of a part or parts, or furnishing to the Successful Proponent materials and/or equipment called for in the RFP. 2

q. Successful Proponent means the Proponent submitting the most advantageous RFP as determined by the City. r. Work means any labour, duty and/or efforts to accomplish the purpose of this project. 3.0 REQUEST FOR RFP PROCESS 3.1 NOT A TENDER CALL This RFP is not a tender call, and the submission of any response to this RFP does not create a tender process. This RFP is not an invitation for an offer to contract, and it is not an offer to Contract made by the City. 3.2 NO OBLIGATION TO PROCEED Though the City fully intends at this time to proceed through the RFP, in order to select the services, the City is under no obligation to proceed to the purchase, or any other stage. The receipt by the City of any information (including any submissions, ideas, plans, drawings, models or other materials communicated or exhibited by any intended Proponent, or on its behalf) shall not impose any obligations on the City. There is no guarantee by the City, its elected and appointed officials or employees, that the process initiated by the issuance of this RFP will continue, or that this RFP process or any RFP process will result in a Contract with the City for the purchase of the equipment, service, or project. 3.3 LATE PROPOSALS Proposals received after the final date and time for receipt of Proposals will be considered as late Proposals. Late Proposals will not be accepted and will be returned unopened to the sender. 4.0 PRE-RFP INFORMATION 4.1 COST OF PREPARATION Any cost incurred by the Proponent in the preparation of this Proposal will be borne solely by the Proponent. 4.2 NEGOTIATION WITH PREFERRED PROPONENT: The Proponent that submits to the City the most advantageous Proposal and which represents the interests of the City, best overall, may be awarded the contract. The City reserves the right to accept or reject all or part of the RFP, however, the City is not precluded from negotiating with the Successful Proponent to modify its Proposal to best suit the needs of the City. The City reserves the right to obtain additional information from the short-listed Proponents to clarify the information in their submission, conduct interviews to discuss their suitability for the project or proceed to negotiate services, a contract, and details of the RFP with the most qualified firm. If the City selects a Preferred Proponent, the City will enter into negotiations with the Preferred Proponent in an attempt to settle one or more Contract necessary to implement the project, as generally described in this RFP. If the City considers that it is unlikely to settle such agreements with the Preferred Proponent despite having negotiated with the Preferred Proponent for at least 30 days after selection of the Preferred Proponent, the City is entitled to cease negotiations with the Preferred Proponent and to begin negotiations with another Proponent. 3

The City reserves the right to negotiate specific terms of the Contract with the Proponent prior to the final award of the Contract. The City also reserves the right to negotiate specific terms of the Contract with the Successful Proponent as the Contract progresses. 4.3 REJECTION OF PROPOSALS The City reserves the right to reject, at the City s sole discretion, any or all Proposals, without limiting the foregoing, any Proposal which either: a. is incomplete, obscure, irregular or unrealistic; b. has non-authorized (not initialed) erasures or corrections in the Proposal or any schedule thereto; c. omits or fails to include any one or more items in the Proposal for which a price is required by the RFP; or d. fails to complete the information required by the RFP to be furnished with a Proposal or fails to complete the information required whether the same purports to be completed or not. Further, a Proposal may be rejected on the basis of the Proponents past performance, financial capabilities, completion schedule of compliance with Federal, Provincial, and Municipal legislation. As it is the purpose of the City to obtain a Proposal most suitable to the interests of the City and what it wishes to accomplish, the City has the right to waive any irregularity or insufficiency in any Proposal submitted and to accept the Proposal which is deemed to be the Best Value for the City. 4.4 EVALUATION CRITERIA The following criteria, but not restricted thereto, will be used to evaluate Proposals: a. Proposals will be evaluated based on predetermined criteria and weighting as detailed below: PROJECT: PROPONENT: ELECTRICAL ENGINEERING SUPPORT AND CONSULTING SERVICES CRITERIA WEIGHT 1 2 3 4 5 POOR MARGINAL FAIR GOOD OUTSTANDING TOTAL OF 100 Experience of Staff 20 Knowledge of the City s Electrical System 20 References 10 Clarity of Proposal 10 Price 40 EVALUATION TOTAL: 4

Awards will be made based on the Best Value offered, and the Best Value will be determined by the City. The quality of the service to be supplied, the conformity with the specifications, the suitability to requirements, guarantee clauses, and references shall all be taken into consideration. 4.5 EVALUATION COMMITTEE Evaluation of Proposals will be by an Evaluation Committee formed by the City. 4.6 CONFIDENTIALITY The City will endeavour to keep all Proposals confidential. The material contained in the Proposal from the Successful Proponent will be incorporated in the Contract Document and information which is considered sensitive and/or proprietary shall be identified as such by the Proponent. Technical or commercial information included in the City Contract Document shall not be released if the Purchasing Manager of the City deems such releases inappropriate, subject to the Freedom of Information and Protection of Privacy Act. 4.7 CLARIFICATION The City reserves the right to seek Proposal clarification with the Proponents to assist in making evaluations. 4.8 GIFTS AND DONATIONS Proponents will not offer entertainment, gifts, gratuities, discounts, or special services, regardless of value, to any employee of the City. The Successful Proponent shall report to the Purchasing Manager of the City any attempt by City employees to obtain such favors. 4.9 ACCEPTANCE OF PROPOSAL The City shall not be obligated in any manner to any Proponent whatsoever until a written Contract has been duly executed relating to an approved Proposal. No act of the City other than a notice in writing signed by the Corporate Officer or the Purchasing Manager of the City shall constitute an acceptance of a Proposal. Such acceptance shall bind the Successful Proponent to execute in a manner satisfactory to the City. a. Proposals must meet all the requirements herein to be eligible for consideration. Proposals that are unsigned, incomplete, conditional, illegible, unbalanced, obscure or that contain additions not called for, reservations, erasures, alteration, or irregularities of any kind may be rejected as incomplete. c. Proposal Form must contain the Proponent s business or home address and legal status must be disclosed and must be signed by a duly authorized official. d. The Proposal is irrevocable and open for acceptance for a period of sixty (60) days from the date of closing of the RFP. f. Proposals will only be considered from reputable firms with proven previous experience on projects involving goods or services of a similar nature, magnitude and complexity to that which will be covered by the Contract. g. The City reserves the right to accept the RFP offer in total or in part, to reject any or all offers, to waive any minor informalities, irregularities, or technicalities, and to accept the offer deemed most favorable to the City. If the City determines that a Proposal contains false or misleading information, the City is entitled to reject that Proposal at any time as being invalid. h. The City shall not be obligated either to accept or reject any non-compliance with the requirements of this RFP. 5

4.10 NEGOTIATION DELAY If a written Contract cannot be negotiated within thirty (30) days of notification of the successful Proponent, the City may, at its sole discretion at any time thereafter, terminate negotiations with that Proponent and either negotiate a Contract with the next qualified Proponent or choose to terminate the RFP process and not enter into a Contract with any of the Proponents. 4.11 ENQUIRIES All enquiries related to this RFP are to be directed, in writing, to City of Penticton 616 Okanagan Avenue East Penticton, BC V2A 3K6 Cathy Ingram, Purchasing Manager cathy.ingram@penticton.ca Information obtained from any other source is not official and should not be relied upon. Enquiries and responses will be recorded and may be distributed to all Proponents at the City s option. 4.12 FINAL DATE AND TIME FOR RECEIPT OF PROPOSALS Proposals must be received by 2:00 p.m. (local Penticton time) on Friday, June 27, 2014 City of Penticton c/o Purchasing Manager 616 Okanagan Avenue East Penticton, BC V2A 3K6 Proposals and their envelopes should be clearly marked with the name and address of the Proponent and the RFP title. 5.0 PROPOSAL PREPARATION: 5.1 ALTERNATIVE SOLUTIONS If alternative solutions are offered, please submit the information in the same format, as a separate Proposal. 5.2 CHANGES TO PROPOSAL WORDING The Proponent will not change the wording of its Proposal after closing and no words or comments will be added to the Proposal unless requested by the City for purposes of clarification. 5.3 LIMITATION OF DAMAGES The Proponent, by submitting a Proposal, agrees that it will not claim damages, for whatever reason, relating to the RFP or in respect of the competitive process, in excess of an amount equivalent to the reasonable costs incurred by the Proponent in preparing its Proposal. The Proponent, by submitting a Proposal, waives any claim for loss of profits if no agreement is made with the Proponent. 6

5.4 FIRM PRICING Proposals must be firm for at least 60 days after the final date. Prices will be firm for the entire Contract period. 5.5 CURRENCY AND TAXES Prices quoted are to be: in Canadian dollars; inclusive of duty, where applicable; FOB destination, delivery charges included where applicable; and taxes extra. 6.0 ADDITIONAL TERMS 6.1 LIABILITY FOR ERRORS While the City has used considerable efforts to ensure an accurate representation of information in this RFP, the information contained in this RFP is supplied solely as a guideline for Proponents. The information is not guaranteed or warranted to be accurate by the City, nor is it necessarily comprehensive or exhaustive. Nothing in this RFP is intended to relieve Contractors from forming their own opinions and conclusions with respect to the matters addressed in this RFP. 6.2 AGREEMENT WITH TERMS By submitting a Proposal the Proponent agrees to all the terms and conditions of this RFP. Contractors who have obtained the RFP electronically must not alter any portion of the document, with the exception of adding the information requested. To do so will invalidate the Proposal. 6.3 USE OF REQUEST FOR RFP This document, or any portion thereof, may not be used for any purpose other than the submission of Proposals. 7.0 SPECIAL CONDITIONS a. A qualified Proposal is one which meets the needs and specifications of the City, the terms and conditions contained in the RFP. The Preferred Proposal is a qualified Proposal offering the Best Value, as determined by the City. b. The City will decide whether a Proposal is qualified by evaluating all of the Proposals based on, but not limited to, the needs of the City, specifications, terms and conditions and price. The City Purchasing Manager and/or department head of the City will examine all Proposals and recommend which Proposal is in the City s best interest. c. A Proposal which is unqualified is one that exceeds the cost expectations of the City and/or does not meet the terms and conditions contained in the RFP and/or does not meet the needs and specifications of the City. The City reserves the right to reject any or all unqualified Proposals. d. The City reserves the right to cancel this RFP at any time. 7

e. The City recognizes that Best Value is the essential part of purchasing a product and/or service and therefore the City may prefer a Proposal with a higher price, if it offers greater value and better serves the City s interests, as determined by the City, over a Proposal with a low price. The City s decision shall be final. f. The City reserves the right to negotiate with a Preferred Proponent, or any Proponent, on any details, including changes to specifications and price. If specifications require significant modification, all Proponents shall have the opportunity to adjust their Proposals or re-submit altogether, as determined by the City Purchasing Manager and/or department head. g. All equipment, goods and workmanship must conform to all Laws and Standards necessary for use in Canada and the Province of British Columbia. h. The Successful Proponent, herein named the Contractor, shall guarantee that their Proposal will meet the needs of the City and that any or all items supplied and/or services rendered shall be correct. If the item(s) supplied by the Contractor and/or the service(s) rendered by it are in any way incorrect or unsuitable, all correction costs shall be borne solely by the Contractor. i. All prices submitted on the Bid Sheet shall include delivery F.O.B. City Works yard or other destination point, as specified by the City, and the Contractor shall bear all risks of loss and/or damage. j. Where only one Proposal is received, the City reserves the right not to make public the amount of the Proposal. The amount of the Proposal will be made public if a Contract is awarded. k. The City reserves the right to accept or reject a Proposal, where only one Proposal is received. l. The City reserves the right in its sole discretion to accept or reject all or part of any Proposal which is non-compliant with the requirements of this RFP. m. The City shall not be obligated either to accept or reject any non-compliance with the requirements of this RFP. n. The City reserves the right to cancel the Contract for goods and/or services as outlined in this RFP, at any time, by providing thirty (30) days written notice to the Successful Proponent. 8

8.0 SPECIFICATIONS 8.1 Overview: The City of Penticton (the City ) owns and operates a medium sized Electric Utility servicing approximately 17,000 residential and commercial customers through a high voltage distribution system of 8 KV and 12 KV circuits, via 4 substations. Utility staff occasionally require professional Electrical Engineering support for operational and construction issues. The City is seeking an Electrical Engineering firm to provide these services on an as-required, hourly-fee basis. 8.2 Term: 3 Years (August 1, 2014 July 31, 2017) 8.3 Billing: To be reconciled and submitted quarterly via City Purchase Order. 8.4 Required Services: Provide engineering support and consulting services to Electric Utility staff on an as-needed, hourly-fee basis. These services include, but are not limited to, the following: Overhead primary and secondary power line design. Underground primary and secondary distribution design. Operational issue analysis and inspections. Review of internally generated designs and Standards and Sealing, signing and dating same as a Professional Electrical Engineer registered in the Province of B.C. Roadway lighting design. Traffic Signal design, phasing and timing. Underground and overhead distribution system analysis. Electrical Distribution System modelling and updates (see details below). Load forecasting. Coordination of projects with FortisBC. Review of internally generated work procedures and safety protocols. NOTE: There may be instances where immediate (including after hour) support is required. It is estimated these instances would occur no more than six (6) times per year. 8.5 System Model Details: The City s Distribution System has been modelled using CYMEDIST (See CYME data below). The City will transfer its copy of CYMEDIST software and user licence to the successful candidate for the term of this agreement. Ownership of the software and licence will transfer back to the City upon termination of the agreement for any reason. The successful candidate will be responsible for providing all required computer equipment and technical expertise to run the CYMEDIST software and system model. The City will not provide any training in the use of CYMEDIST. The successful candidate will be responsible for paying the annual support fee for the CYMEDIST software while the software and licence are in their possession ($3,215 plus applicable taxes March 22, 2014-March 22, 2015). In return, the candidate will be permitted to utilize the software to model other clients systems. The City System Model will be updated quarterly by the candidate with information received from City staff (AutoCAD drawing). The updated City System model is to remain the property of the City. 9

8.6 CYME Data: CYME 7.0 Quantity Expiration CYME Distribution Analysis 1 Perpetual CYME Geographic Background Overlay 1 Perpetual CYME Protection and Coordination Analysis 1 Perpetual CYME Switching Optimization 1 Perpetual 8.7 Qualifications & Experience: The Successful Proponent will have experienced electric utility specialists available who can provide the services as outlined above. The bidder is required to complete Appendix A, listing key support staff along with their qualifications and relevant experience and attach copies of their CV s The Successful Proponent must have experience in the operation and use of CYMEDIST software. The Proponent is required to complete Appendix B and provide copies of CYME training certificates Familiarity with the City Electrical Distribution system would be considered an asset. The Proponent is required to complete Appendix C outlining their knowledge of the City of Penticton Electrical System and how this knowledge was obtained. 8.8 Contract The Successful Proponent will be required to enter into a Contract with the City. A sample of the Contract is attached as Appendix D. 10

9.0 BID SHEET NOTE: APPEXDIX A, B and C must be submitted with the BID SHEET Bid Sheet for: Closing Date: 2014-RFP-13 Electrical Engineer Support and Consulting Services Friday, June 27, 2014 at 2:00 p.m. local time The undersigned Proponent has carefully examined the Conditions and Specifications for the Services requested and will provide the Services required. I/We hereby acknowledge any addenda issued which becomes part of the work and are included in this RFP: ADDENDUM # ADDENDUM # This proposal is valid for: days and shall expire on Labour Category Senior Electrical Engineer (P.Eng) Hourly Rate 2014 08 01 2015 07 31 (includes all overhead costs) Hourly Rate 2015 08 01 2016 07 31 (includes all overhead costs) Hourly Rate 2016 08 01 2017 07 31 (includes all overhead costs) Intermediate Engineer (P.Eng) Junior Engineer (EIT) Senior Technologist Intermediate Technologist Junior Technologist Field Technician Senior Draftsman Junior Draftsman Clerical Protection & Control (Eng. Tech/P. Eng) GIS Technician (w/ ESRI Experience) Traffic Signal Design (Eng. Tech/P. Eng.) Civil/Structural Engineer (P. Eng.) 11

Disbursements & Misc. Expenses (list as required) Rate 2014 08 01 2015 07 31 (includes all overhead costs) Rate 2015 08 01 2016 07 31 (includes all overhead costs) Rate 2016 08 01 2017 07 31 (includes all overhead costs) FIRM NAME: ADDRESS: POSTAL CODE: PHONE NO. E-MAIL: FAX NO. DATE: **SIGNATURE OF BIDDER PRINT NAME ** must be an official signatory of the company 12

APPENDIX A Key Personnel Listing (add sheets if required) Name & Title: CV Attached: Qualifications: Relevant Experience: Name & Title: CV Attached: Qualifications: Relevant Experience: Name & Title: CV Attached: Qualifications: Relevant Experience: Name & Title: CV Attached: Qualifications: Relevant Experience: 13

APPENDIX B Experience with CYMEDIST software (add sheets if required) Project CYME DIST used on: Staff person using CYME DIST: Details: Project CYME DIST used on: Staff person using CYME DIST: Details: Project CYME DIST used on: Staff person using CYME DIST: Details: Project CYME DIST used on: Staff person using CYME DIST: Details: 14

APPENDIX C Familiarity with the City of Penticton Electrical System The Bidder is to indicate what their knowledge of the City of Penticton Electrical System is and how it was obtained (Add pages if required) 15

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APPENDIX D FORM OF CONTRACT CONSULTING AGREEMENT THIS AGREEMENT dated for reference the day of BETWEEN: THE CORPORATION OF THE CITY OF PENTICTON a municipality pursuant to the Community Charter, S.B.C. 2003, c. 326 having an address at 171 Main Street, in the City of Penticton, Province of British Columbia, V2A 5A9 (the City ) AND: (the Consultant ) WHEREAS: The City desires to engage the services of the Consultant as an independent contractor to perform consulting services and the Consultant has agreed to provide consulting services subject to the hereinafter terms and conditions. NOW THEREFORE in consideration of the premises and of the mutual covenants and agreements herein set forth and contained, the parties agree each with the other as follows: 1. Interpretation 1.1. For purposes of this Agreement, except as otherwise expressly provided: a. Section - all references in this Agreement to a designated section or other subdivision or to a Schedule is to the designated section or other subdivision of, or Schedule to, this Agreement; b. Whole Agreement - the words herein, hereof, hereunder and other words of similar import refer to this Agreement as a whole and not to any particular section or other subdivision or Schedule; c. Headings - any headings have been inserted for convenience only and do not form a part of this Agreement and are not intended to interpret, define or limit the scope, extent or intent of this Agreement or any provision hereof; d. Non-limiting - the singular of any terms includes the plural, and vice versa; the use of any term referable to a particular gender is equally applicable to any gender and, where applicable, a body corporate; the word or is not exclusive and the word including is not limiting (whether or not non-limiting language, such as without 17

limitation or but not limited to or words of similar import is used with reference thereto). 2. Retainer of Consultant and Consulting Periods 2.1. The City hereby retains the Consultant as an independent contractor to provide the Services as described in Schedule A attached hereto for the term referred to therein (collectively the Services ) and the Consultant agrees to provide the Services. 2.2. The term of this Agreement may be extended or amended by mutual consent of the parties. A written notice of proposed changes shall be given by the Consultant or by the City and within five (5) business days of the party receiving the notice the said party shall indicate, in writing, acceptance, rejection, or request for further time to review or request submission of additional supporting information. 3. Services 3.1. The Consultant shall report directly to Chris Schmidt, Facilities Supervisor or such other person as the Supervisor, Title may direct from time to time. 3.2. While the Consultant shall not be obligated to provide the Services to the City on an exclusive basis and shall be at liberty to provide the Services to others provided there is no conflict with respect thereto, the Consultant agrees that it shall provide the Services referred to herein on a timely basis and in accordance with the following milestone dates: 3.3. The Consultant covenants and agrees that the Consultant will at all times during the term of this Agreement carry out and provide the Services to be provided by the Consultant as referred to herein. 3.4. The Consultant shall exercise a degree of care, skill and diligence normally provided in the performance of the Services in respect of projects of a similar nature to the Services required under this Agreement. 3.5. The Consultant shall comply with all reasonable requirements established by the City for the performance of the Services including but not limited to safety, security, emergency procedures and access. 3.6. The Consultant shall submit to the City regular progress reports as referred to in Schedule A with respect to the Services and such additional reports as may be reasonably required by the City from time to time. 4. Compensation 4.1. The Consultant shall receive from the City for the performance of the Services rendered to the City under the terms of this Agreement, compensation in the amount of $AMOUNT dollars plus applicable taxes and not to exceed as allocated pursuant to Schedule B pursuant to monthly invoices approved by the City and paid within thirty (30) days from receipt thereof by the City. 18

4.2. Each payment shall be made to the Consultant by way of cheque or bank draft, made payable to the Consultant. The City s payment is subject to receipt of the Consultant s invoice for each pay period. 5. Independent Contractor 5.1. The Consultant shall be an independent contractor in performing the Services hereunder. As an independent contractor, the Consultant shall be responsible for the payment of all income taxes attributable to any payments made under this Agreement during the period of this Agreement. The Consultant agrees to indemnify and save harmless the City from and against any and all manner of actions, claims and demands which may be made against it in respect of any fees, assessments, levies, rates, taxes or other charges made, demanded, assessed or otherwise claimed by any provincial or federal government or other body of competent jurisdiction in respect of any monies paid to the Consultant under this Agreement. 6. Conflict of Interest 6.1. The Consultant shall disclose any potential conflict of interest to the City, including any existing or previous: a. agreements with clients involved in litigation or legal actions with the City or its employees, b. relationships or contracts with project stakeholders, or c. agreements or relationships with real-estate developers, realtors, real-estate investment firms and any individual or organization that could be expected to benefit or suffer financially from the outcomes of the City s planning activities, or 6.2. City may terminate, alter or suspend this Contract based on any real or perceived conflict of interest. 7. Confidentiality 7.1. The Consultant acknowledges that in the performance of the Consultant s responsibilities hereunder, the Consultant may have access to confidential information, records and customer lists of the City (the Confidential Information ). During and after the terms of this Agreement, the Consultant shall not, directly or indirectly, disclose such Confidential Information to any person or use any such Confidential Information, except: a. as required in the course of performing such Services and then only to staff of the City on a need-to-know basis; or b. with the prior written consent of the City; And all Confidential Information which the Consultant shall prepare or use or come in contact with shall be and remain the City s sole property and shall not be removed from the 19

City s premises without its prior written consent, except as required in the normal course of performing the Services under this Agreement. 7.2. The Consultant agrees that all base materials, research results, computer programs, computer files, drawings, documents and notes and materials of any type whatsoever developed or prepared by the Consultant (hereinafter called the Documents ) in the performance of the Services shall vest and become the absolute property of the City, including copyright of such Documents and upon completion of the Services or termination of this Agreement, all copies of Documents shall be delivered by the Consultant to the City. The Consultant may retain one copy of its Documents for record purposes. Once the City has possession of the Documents, the City is solely responsible for the use the City makes of such Documents. 7.3. The Consultant agrees that all restrictions in this Article 7 are reasonable, fair and valid in all the circumstances and, to the fullest extent permitted by law, hereby waives all defenses to the strict enforcement thereof by the City. 8. Suspension of Agreement 8.1. Either party may, at any time, by notice in writing, suspend the Services. 8.2. The City shall pay all fees accrued due to the Consultant to the time of suspension, but payment of all other fees may be suspended by the City. 8.3. The City shall not be responsible for any fees incurred by the Consultant during the period of any suspension unless the Consultant satisfies the City, before incurring any such fees of the necessity for the same and provides the City with such documentation as may be required by the City in support of the claim for fees. 9. Termination 9.1. City Termination The City may terminate this Agreement in the event the Consultant: a. fails to complete the Services or any portion thereon within the time specified by this Agreement; b. becomes insolvent; c. commits an act of bankruptcy; d. assigns this Agreement without the required written consent of the City; e. fails to adhere to or perform any of the provisions of this Agreement; or f. has any conflict of interest which may, in the opinion of the City, adversely affect any project for which the Services are being provided. 20

Consultant Termination The Consultant may terminate this Agreement in the event the City: g. becomes insolvent; h. commits an act of bankruptcy; or i. fails to adhere to or perform any of the provisions of this Agreement. 9.2. The City may terminate this Agreement upon seven (7) days prior written notice in the event funds are not available for completion of the Services or the City abandons the project for which the Services were intended. 9.3. The Consultant, upon termination of this Agreement for any of the reasons set out in Article 9.1 (a-f) herein, shall be liable to, and upon demand, shall pay to the City an amount equal to all loss or damages suffered both directly and indirectly by the City as a result of the non-completion of the Services. 9.4. The Consultant agrees that the termination or suspension of this Agreement or any change thereto does not operate as to relieve or discharge the Consultant from any obligation under this Agreement or impose upon him by law in respect of the Services or any portion thereof of the Services that the Consultant has completed to the date of such termination or suspension. 9.5. Subject to Article 9.1 herein, the City shall, in the event of termination of this Agreement, pay to the Consultant all amounts for completed work to the Consultant in accordance with this Agreement as well as all reasonable fees incurred up to date of termination. The City shall have no further liability of any nature whatsoever to the Consultant for any loss of profit or any other losses suffered, either directly or indirectly, by the Consultant as a result of the termination of this Agreement. 9.6. The Consultant shall, upon termination, forthwith provide to the City a reproducible copy of all materials used by the Consultant or prepared by the Consultant in regards to the Services. 9.7. Notwithstanding anything herein to the contrary, the City may, for whatever reason, terminate this Agreement on one (1) month prior written notice to the Consultant, in which case the term of this Agreement shall expire upon the effective date set out in the aforesaid notice, and the City shall have no further obligation to the Consultant for the balance of the term of this Agreement save and except as may exist on the termination date. 10. Obligations of the Consultant 10.1. Time of the Essence Unless otherwise provided, time shall be of the essence. 21

10.2. Patent Infringement (if applicable) The Consultant shall pay all royalties and patent license fees required for the performance of the agreement. The Consultant shall hold the City s elected representatives, appointed official employees and Managers harmless from and against all claims, demands, losses, costs, damages, actions, suits, or proceeding arising out of the Consultant performance of the Contract which are attributable to an infringement or an alleged infringement by the Consultant and/or anyone for whose acts it may be liable, of any patent or invention. If the City shall be prevented by permanent injunction from using any product or equipment, the Consultant shall substitute at no additional cost to the City, such product or equipment equally suitable, all subject to approval by the City prior to installation of any substitute product or equipment. 10.3. Registration with Worksafe BC (WCB) The Consultant and any Sub-Contractor must be registered with Worksafe BC (WCB), in which case Worksafe BC (WCB) coverage must be maintained for the duration of the Contract. Prior to commencing the Work, the Consultant is required to submit a Worksafe BC (WCB) Clearance Letter indicating that all WCB assessments have been paid. The Consultant shall ensure compliance on his part with the Workers' Compensation Act and any regulations there under, especially provisions of said Act or of regulations under said Act having to do with the prevention of accidents, the prevention of diseases and the provision of safe working conditions, including proper sanitation and ventilation. In any case where pursuant to the provisions of the Workers' Compensation Act, the Workers' Compensation Board orders the Consultant in respect of his operations under this Agreement, to cease operations because of failure to install or adopt safety devices or appliances directed by the order of the said Board, or required under said Act or regulations there under or because said Board is of the opinion that conditions of immediate danger exist that would be likely to result in injury to any person, or because of lack of payment of an account due to the Board, the City on twenty-four (24) hours written notice to the Consultant, may terminate the Contract. 10.4. Insurance Protection and Damage Before commencing the Work, the Consultant shall file with the City, certificates of all insurance policies acceptable to the City. These certificates shall state that the insurance complies with the requirements of the City and that the territory of the policy includes the country in which the Work is to be constructed. Each insurance policy required under this Article shall contain an endorsement to provide all additional insured with prior notice of changes and cancellations. Such endorsement shall be in the following form: "It is understood and agreed that the coverage provided by this policy will not be changed or amended in any way or cancelled until thirty (30) days after written 22

notice of such change or cancellation shall have been given or sent by registered mail to all additional insured." Should the Consultant fail to make a payment of any premiums or other assessments required by the Consultant's insurers to maintain such policies in force and effect, the City may in their discretion make payment of such premiums or assessments and deduct the amount thereof from such monies as may then or later be payable to the Consultant pursuant to this Contract or recover the same from the Consultant as the City in its discretion may determine. Whenever the word The City is to appear in the insurance policies, the legal name shall be inserted. a) Comprehensive General Insurance: The Consultant shall maintain, in full force and effect with A rated insurers licensed in the Province of British Columbia, Comprehensive General Liability in respect to the Services and operations of the Consultant for bodily injury and/or property damage with policy limits of not less than Two Million Dollars ($2,000,000.00) per occurrence. b) Protection of Work, Property and Public: The Consultant shall comply with all applicable laws, ordinances, rules, regulations and lawful orders of any public authority having jurisdiction for the safety of persons or property or to protect them from damage, injury or loss. The Consultant shall protect the property adjacent to the Work areas from damage as the result of operations under the Contract. The Consultant shall protect the Work and the City's property from damage and shall make good at their own expense any damage which may arise as the result of the Consultant s operations under the Contract. c) Consultant's Insurance: Public Liability & Property Damage Insurance. The Consultant shall save and hold harmless the City, its officers, Managers, servants and employees, from and against any and all suits or claims alleging damage or injury (including death) to any person or property that may occur or that may be alleged to have occurred, in the course of the performance of this Contract, whether such claim shall be made by an employee of the Consultant, or by a third person and whether or not it shall be claimed that the alleged damage or injury (including death) was caused through a wilful or negligent act or omission of the Consultant, its officers, servants, Managers or employees, or a wilful negligent act or omission of any of its Sub-Contractors or any of their officers, servants, Managers or employees; and at its own expense, the Consultant shall defend any and all such actions and pay all legal charges, costs and other expenses arising there from. The Consultant shall maintain and keep in force during the term of the Contract and until the date of the completion certificate, Two Million Dollars ($2,000,000) inclusive limits for public liability and property damage, against liabilities or damages in 23

respect of injuries to persons (including injuries resulting in death) and in respect of damage to property arising out of the performance of work. The Consultant shall, at the time the Contract is signed, submit to the City two copies of the insurance policies required under this Article and shall also provide to the City from time-to-time, as may be required, satisfactory proof that such policies are still in full force and effect. The City shall be an additional insured on the policy. The policies shall preclude subrogation claims by the insurer against anyone insured there under. In addition, such insurance policy shall include the following "Cross Liability" clause: "The insurance afforded by this policy shall apply in the same manner, as though separate policies were issued, to any action brought against any of the additional insured by or on behalf of any other an additional insured." d) Equipment Insurance Notwithstanding anything contained elsewhere herein, it is understood and agreed that the City shall not be liable for any loss or damage to Consultant's equipment, including loss or use thereof. Each and every policy insuring the Consultant's equipment to be used on the work shall contain the following clause: "It is agreed that the right to subrogation against the City or any of its officers, employees, or Managers or their parent, subsidiary, affiliated, or associated companies or corporations, is hereby waived." e) Automotive Insurance: A minimum of Two Million Dollars ($2,000,000) of public liability and property damage insurance shall be carried on all automotive equipment. f) Errors & Omissions Insurance: The Consultant shall, at the Consultant s expense, establish and maintain professional errors and omissions insurance to the following minimum requirements: Minimum Insurance Consulting Services for projects $ 250,000 not exceeding $50,000 in value Consulting Services for projects $ 2,000,000 exceeding $50,000 The Maximum deductible in all categories shall be $ 50,000 The Consultant accepts responsibility for the acts and omissions of all Sub- Contractors it may engage in rendering the Service on the Project. The Consultant s professional errors and omissions insurance shall remain in force for the life of the Project and for twelve (12) months after substantial 24

10.5. Indemnity completion, and shall contain the following endorsement to provide the City of Penticton with prior notice of changes and cancellations. The Consultant shall at all times indemnify, defend, release, hold harmless and forever discharge the City, and the City s elected and appointed officials, officers, employees and agents from and against all liability, claims, damages, losses, costs, actions, causes of action, suits, proceedings and expenses at law and in equity, whether known or unknown, including all actual legal and other professional fees and disbursements on full indemnity basis, whether arising directly or indirectly from death, personal or bodily injury, sickness, disease, property loss, property damage or other loss or damage which may result from or be connected with the performance of this Agreement, including any breach or default of this Agreement by the Consultant or its employee. 10.6. The aforesaid insurance shall be in a form and with insurers acceptable to the City s Director of Corporate Services. Certificates of Insurance shall be attached to this Contract as Schedule C and evidence if Renewal and Notice if Termination shall be provided to the City not less than thirty (30) days prior to the expiry dates or cancellation of the policies as the case may be. 10.7. With respect to Section 9. the Consultant shall be responsible for the payment of all premium and deductible amounts relating to the said insurance policies and the Consultant shall maintain the aforementioned insurance from the date of this Agreement until the written notice from the City that the project for which the Services are to be provided is complete. 11. Sub-Contractors 11.1. The Consultant may retain the Services of a Sub-Contractor as may be required to perform the Services. 11.2. The Consultant shall be responsible for all Services under this Agreement even if Sub- Contractors are retained 11.3. For Sub-Contractors retained by the Consultant, the Consultant shall bind the Sub- Contractors to the terms of this Agreement. 12. Legal Requirements 12.1. The Consultant shall ensure that the Services comply with all relevant legislation including Statutes, Codes, Bylaws and Regulations as well as City policies and procedures. Where there are two or more laws, ordinances, rules, regulations or codes applicable to the Services, the more restrictive shall apply. 12.2. The Consultant shall apply and pay for all necessary permits or licenses required for the execution of the Services. 25

12.3. The Consultant shall be responsible for the safety of their workers and equipment in providing the Services and those of the Sub-Contractors for the purposes of ensuring compliance with safety regulations for the Consultant and all Sub-Contractors. 13. General 13.1. The Consultant shall not be considered to be a partner of the City. 13.2. This Agreement constitutes and expresses the whole agreement of the parties with reference to the engagement of the Consultant by the City. 13.3. This Agreement shall be governed by and interpreted in accordance with the law of the province of British Columbia and each of the parties, by executing this Agreement, irrevocably attorns to the exclusive jurisdiction of the courts of British Columbia. 13.4. Any notice to be given by the Consultant under this Agreement shall be in accordance with the provisions of the Community Charter of British Columbia, and if by the City of the Consultant hereunder, any notice hereunder shall be deemed to have been well and sufficiently given if mailed by pre-paid express mail, faxed or electronically mailed to, or delivered: to the Consultant at: or such other addresses as the Consultant may from time to time direct in writing, and any such notice by the City to the Consultant shall be deemed to have been received, if mailed, five (5) days after the time of mailing, or if electronically mailed or facsimiled, then seventy-two (72) hours after the time of electronic mailing or facsimileing, and if delivered, from the date of delivery. If normal mail service, electronic mail service or facsimile service is interrupted by strike, slow down, force majeur or other cause, a notice sent by the impaired means of communication will not be deemed to have been received until actually received and the City may utilize any such services which have not been so interrupted or at any other address that any party may from time to time designate by notice in writing to the other party. Any notice shall be received if delivered in person, when delivered and if delivered by facsimile transmission, on the first business day following such transmission. 13.5. The parties shall execute such further agreements or instructions and shall do such further things as may be required to give effect to this Agreement. 13.6. This Agreement shall enure to the benefit of and be binding upon the heirs, executors, administrators, legal personal representatives and permitted assigns of the parties. 26

13.7. This Agreement may not be assigned by the Consultant. 13.8. This Agreement may be executed by the parties and transmitted by facsimile or electronic mail and if so executed and transmitted, this Agreement will be for all purposes as effective as if the parties hereto had delivered an executed original of this Agreement. 13.9. This Agreement may be executed in any number of counterparts, each of which so executed shall be deemed an original and the counterparts together form a valid and binding Agreement which may be sufficient evidence by any one such original counterpart. 13.10. In the event this Agreement is executed by two or more persons, the covenants and agreements herein contained will be joint and several covenants. 13.11. No provision of this Agreement shall be deemed to have been changed unless made in writing signed by the City and the Consultant, and if any provision is unenforceable or invalid for any reason whatever, such unenforceability or invalidity shall not affect the remaining provisions of this Agreement and such provisions shall be severable from the remainder of this Agreement. 13.12. This Agreement takes precedent over any contrary clauses in the Consultants attachments. IN WITNESS WHEREOF this Agreement has been executed as of the day and year first above written. THE CORPORATION OF THE CITY OF PENTICTON by it s authorized signatories: Mitch Moroziuk Director of Operations Shawn Filice Electric Utility Manager COMPANY NAME by it s authorized signatories: Signatory Signatory 27