HomeMy WebLinkAboutAGMT - Climatec (Energy Efficiency Study) ENERGY EFFICIENCY
STUDY AGREEMENT
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City of Seal Beach
211 - 8th Street
Seal Beach, CA 90740
Climatec Building Technologies Group
18002 Cowan
Irvine, CA 92614
(949) 474-0955
This Energy Efficiency Study Agreement ("the Agreement") is made as of the 24th day
of January, 2013 and is between Climatec Building Technologies Group ("Consultant"),
a consultant and the City of Seal Beach ("City"), a California charter city, (collectively,
"the Parties").
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•
RECITALS
A City desires certain professional services.
B. Consultant represents that it is qualified and able to provide City with such
services.
NOW THEREFORE, in consideration of the Parties' performance of the
promises, covenants, and conditions stated herein, the Parties hereto agree as follows:
AGREEMENT
1.0 Scope of Services
1.1. Consultant shall conduct, at no cost to City, an Energy Efficiency Study
(EES) for the purpose of identifying improvements that will result in energy and
operational savings under a self-funding, guaranteed savings program. Areas of focus
shall include heating, cooling, lighting, energy management, irrigation, domestic water
conservation and renewable energy. Consultant must perform all Services under this
Agreement in accordance with the standard of care generally exercised by like
professionals under similar circumstances and in a manner reasonably satisfactory to
City and must comply with all applicable provisions of federal, state, and local law.
1.2. City shall provide Consultant with utility bill information for electricity, gas,
and water usage for all applicable City facilities along with reasonable access to staff
and facilities. The City agrees to maintain all information obtained from Consultant as
confidential and proprietary unless legally required to treat as public information.
2.0 Term & Termination
This term of this Agreement shall commence as of the Effective Date and shall
until terminated as provided by this Agreement. This Agreement may be terminated by
City, without cause, or by Consultant based on reasonable cause, upon giving the other
party written notice thereof not less than 30 days prior to the date of termination.
3.0 Consultant's Compensation
Consultant shall conduct the EES at no cost to City provided that if City
implements any of the cost saving measures identified by Consultant in the EES within
the 18 months of the delivery of the EES to the City without Climatec, City will reimburse
Climatec's EES development costs at $0.07 per square foot.
•
4.0 Notices
4.1. All notices permitted or required under this Agreement shall be deemed
made when personally delivered or when mailed 48 hours after deposit in the United
States Mail, first class postage prepaid and addressed to the party at the following
addresses:
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To City: City of Seal Beach
211-8th Street
Seal Beach, California 90740
Attn: City Manager
To Consultant: Climatec Building Technologies Group
18002 Cowan
Irvine, California 92614
Attn: Matthew St. Pierre
4.2. Actual notice shall be deemed adequate notice on the date actual notice
occurred, regardless of the method of service.
5.0 Independent Contractor
5.1 . Consultant is an independent contractor and not an employee of the City.
All services provided pursuant to this Agreement shall be performed by Consultant or
under its supervision. Consultant will determine the means, methods, and details of
performing the services. Any additional personnel performing services under this
Agreement on behalf of Consultant shall also not be employees of City and shall at all
times be under Consultant's exclusive direction and control. Consultant shall pay all
wages, salaries, and other amounts due such personnel in connection with their
performance of services under this Agreement and as required by law. Consultant shall
be responsible for all reports and obligations respecting such additional personnel,
including, but not limited to: social security taxes, income tax withholding,
unemployment insurance, disability insurance, and workers' compensation insurance.
5.2. Consultant shall indemnify and hold harmless City and its elected officials,
officers, employees, servants, designated volunteers, and agents serving as
independent contractors in the role of City officials, from any and all liability, damages,
claims, costs and expenses of any nature to the extent arising from Consultant's
personnel practices. City shall have the right to offset against the amount of any fees
due to Consultant under this Agreement any amount due to City from Consultant as a
result of Consultant's failure to promptly pay to City any reimbursement or
indemnification arising under this Section.
6.0 Subcontractors
No portion of this Agreement shall be subcontracted without the prior written
approval of the City. Consultant is fully responsible to City for the performance of any
and all subcontractors.
7.0 Assignment
Consultant shall not assign or transfer any interest in this Agreement whether by
assignment or novation, without the prior written consent of City. Any purported
assignment without such consent shall be void and without effect.
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8.0 Insurance
8.1. Consultant shall not commence work under this Agreement until it has
provided evidence satisfactory to the City that Consultant has secured all insurance
required under this Section. Consultant shall furnish City with original certificates of
insurance and endorsements effecting coverage required by this Agreement on forms
satisfactory to the City. The certificates and endorsements for each insurance policy
shall be signed by a person authorized by that insurer to bind coverage on its behalf,
and shall be on forms provided by the City if requested. All certificates and
endorsements shall be received and approved by the City before work commences.
The City reserves the right to require complete, certified copies of all required insurance
policies, at any time.
8.2. Consultant shall, at its expense, procure and maintain for the duration of
the Agreement, insurance against claims for injuries to persons or damages to property
that may arise from or in connection with the performance of this Agreement. Insurance
is to be placed with insurers with a current A.M. Best's rating no less than A:VIII,
licensed to do business in California, and satisfactory to the City. Coverage shall be at
least as broad as the latest version of the following: (1) General Liability: Insurance
Services Office Commercial General Liability coverage (occurrence form CG 0001);
(2) Automobile Liability: Insurance Services Office Business Auto Coverage form
number CA 0001, code 1 (any auto); and, if required by the City, (3) Professional
Liability. Consultant shall maintain limits no less than: (1) General Liability: $2,000,000
per occurrence for bodily injury, personal injury and property damage and if Commercial
General Liability Insurance or other form with a general aggregate limit is used, either
the general aggregate limit shall apply separately to this Agreement/location or the
general aggregate limit shall be twice the required occurrence limit; (2) Automobile
Liability: $1,000,000 per accident for bodily injury and property damage; and
(3) Professional Liability: $1,000,000 per claim/aggregate.
8.3. The insurance policies shall contain the following provisions, or Consultant
shall provide endorsements on forms supplied or approved by the City to state:
(1) coverage shall not be suspended, voided, reduced or canceled except after 30 days
prior written notice by certified mail, return receipt requested, has been given to the City;
(2) any failure to comply with reporting or other provisions of the policies, including
breaches of warranties, shall not affect coverage provided to the City, its directors,
officials, officers, (3) coverage shall be primary insurance as respects the City, its
directors, officials, officers, employees, agents and volunteers, or if excess, shall stand
in an unbroken chain of coverage excess of the Consultant's scheduled underlying
coverage and that any insurance or self-insurance maintained by the City, its directors,
officials, officers, employees, agents and volunteers shall be excess of the Consultant's
insurance and shall not be called upon to contribute with it; (4) for general liability
insurance, that the City, its directors, officials, officers, employees, agents and
volunteers shall be covered as additional insureds with respect to the services or
operations performed by or on behalf of the Consultant, including materials, parts or
equipment furnished in connection with such work; and (5) for automobile liability, that
the City, its directors, officials, officers, employees, agents and volunteers shall be
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10.7. Labor Certification. By its signature hereunder, Consultant certifies that
it is aware of the provisions of Section 3700 of the California Labor Code that require
every employer to be insured against liability for Workers' Compensation or to
undertake self-insurance in accordance with the provisions of that Code, and agrees to
comply with such provisions before commencing the performance of the Services.
10.8. Entire Agreement. This Agreement contains the entire agreement of the
parties with respect to the subject matter hereof, and supersedes all prior negotiations,
understandings, or agreements. This Agreement may only be modified by a writing
signed by both parties.
10.9. Severability. The invalidity in whole or in part of any provisions of this
Agreement shall not void or affect the validity of the other provisions of this Agreement.
10.10. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
10.11. No Third Party Rights. No third party shall be deemed to have any rights
hereunder against either party as a result of this Agreement.
10.12. Waiver. No waiver of any default shall constitute a waiver of any other
default or breach, whether of the same or other covenant or condition. No waiver,
benefit, privilege, or service voluntarily given or performed by a party shall give the other
party any contractual rights by custom, estoppel, or otherwise.
10.13. Prohibited Interests; Conflict of Interest.
10.13.1 . Consultant covenants that it presently has no interest and
shall not acquire any interest, direct or indirect, which may be affected by the Services,
or which would conflict in any manner with the performance of the Services. Consultant
further covenants that, in performance of this Agreement, no person having any such
interest shall be employed by it. Furthermore, Consultant shall avoid the appearance of
having any interest, which would conflict in any manner with the performance of the
Services. Consultant shall not accept any employment or representation during the
term of this Agreement which is or may likely make Consultant "financially interested"
(as provided in California Government Code §§1090 and 87100) in any decision made
by City on any matter in connection with which Consultant has been retained.
10.13.2. Consultant further warrants and maintains that it has not
employed or retained any person or entity, other than a bona fide employee working
exclusively for Consultant, to solicit or obtain this Agreement. Nor has Consultant paid
or agreed to pay any person or entity, other than a bona fide employee working
exclusively for Consultant, any fee, commission, gift, percentage, or any other
consideration contingent upon the execution of this Agreement. Upon any breach or
violation of this warranty, City shall have the right, at its sole and absolute discretion, to
terminate this Agreement without further liability, or to deduct from any sums payable to
Consultant hereunder the full amount or value of any such fee, commission, percentage
or gift.
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covered as additional insureds with respect to the ownership, operation, maintenance,
use, loading or unloading of any auto owned, leased, hired or borrowed by the
Consultant or for which the Consultant is responsible.
8.4. All insurance required by this Section shall contain standard separation of
insureds provisions and shall not contain any special limitations on the scope of
protection afforded to the City, its directors, officials, officers, employees, agents, and
volunteers.
8.5. Any deductibles or self-insured retentions shall be declared to and
approved by the City. Consultant guarantees that, at the option of the City, either:
(1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as
respects the City, its directors, officials, officers, employees, agents, and volunteers; or
(2) the Consultant shall procure a bond guaranteeing payment of losses and related
investigation costs, claims and administrative and defense expenses.
9.0 Indemnification, Hold Harmless, and Duty to Defend
Consultant shall defend, indemnify, and hold the City, its officials, officers,
employees, volunteers and agents serving as independent contractors in the role of city
officials (collectively "Indemnities") free and harmless from any and all claims, demands,
causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to
property or persons, including wrongful death, in any manner arising out of or incident to
any acts or omissions of Consultant, its employees, or its agents in connection with the
performance of this Agreement, including without limitation the payment of all
seaseguontial (reasonable) damages and attorneys' fees and other related costs
and expenses, except for such loss or damage arising from the sole negligence or
willful misconduct of the City. With respect to any and all such aforesaid suits, actions,
or other legal proceedings of every kind that may be brought or instituted against
Indemnitees, Consultant shall defend Indemnitees, at Consultant's own cost, expense,
and risk, and shall pay and satisfy any judgment, award, or decree that may be
rendered against Indemnitees. Consultant shall reimburse City and its directors,
officials, officers, employees, agents and/or volunteers, for any and all legal expenses
and costs incurred by each of them in connection therewith or in enforcing the
indemnity herein provided. Consultant's obligation to indemnify shall not be restricted to
insurance proceeds, if any, received by Consultant, the City, its directors, officials,
officers, employees, agents or volunteers. All duties of Consultant under this Section
shall survive termination of this Agreement.
10.0 Miscellaneous
10.6. Equal Opportunity. Consultant affirmatively represents that it is an equal
opportunity employer. Consultant shall not discriminate against any subcontractor,
employee, or applicant for employment because of race, religion, color, national origin,
handicap, ancestry, sex, sexual orientation, or age. Such non-discrimination includes,
but is not limited to, all activities related to initial employment, upgrading, demotion,
transfer, recruitment or recruitment advertising, layoff, or termination.
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10.13.3. Consultant warrants and maintains that it has no knowledge
that any officer or employee of City has any interest, whether contractual,
noncontractual, financial, proprietary, or otherwise, in this transaction or in the business
of Consultant, and that if any such interest comes to the knowledge of Consultant at any
time during the term of this Agreement, Consultant shall immediately make a complete,
written disclosure of such interest to City, even if such interest would not be deemed a
prohibited "conflict of interest" under applicable laws as described in this subsection.
10.14. Attorneys' Fees. If either party commences any legal, administrative, or
other action against the other party arising out of or in connection with this Agreement,
the prevailing party in such action shall be entitled to have and recover from the losing
party all of its attorneys' fees and other costs incurred in connection therewith.
10.15. Exhibits. All exhibits referenced in this Agreement are hereby
incorporated into the Agreement as if set forth in full herein. In the event of any material
discrepancy between the terms of any exhibit so incorporated and the terms of this
Agreement, the terms of this Agreement shall control.
10.16. Corporate Authority. The person executing this Agreement on behalf of
Consultant warrants that he or she is duly authorized to execute this Agreement on
behalf of said Party and that by his or her execution, the Consultant is formally bound to
the provisions of this Agreement.
IN WITNESS WHEREOF, the Parties hereto, through their respective authorized
representatives have executed this Agreement as of the date and year first above
written.
CITY OF SEAL BEACH CONSULTA '
By: t. . '' 1/it By:
. I R. ingram, CIO nager
Name J _ �ut €r
Attest:
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By: a ./
Linda Devine, City Clerk By:
Approved as to Form: Name
Its iq,N4iNil - =
By: _ /i to
Quinn Barrow, City Attorney
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