HomeMy WebLinkAboutAGMT - Energy Innovation Group (Energy Efficiency & Conservation Strategy) PROFESSIONAL SERVICES AGREEMENT
FOR DEVELOPMENT OF AN ENERGY EFFICIENCY AND CONSERVATION
STRATEGY OF SELECTED CITY FACILITIES AND SECURING OF FEDERAL
GRANT AND UTILITY FUNDS
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City of Seal Beach
211 - 8th Street
Seal Beach, CA 90740
Energy Innovation Group, LLC
11965 Venice Blvd., Ste. 408
Los Angeles, CA 90066
This Professional Service Agreement ( "the Agreement ") is made as of December 14, 2009 (the
"Effective Date "), by and between Energy Innovation Group, LLC ( "Consultant "), a California
Corporation, and the City of Seal Beach ( "City "), a California charter city, (collectively, "the
Parties ").
RECITALS
A. As part of the American Recovery and Reinvestment Act, the United States
Department of Energy has implemented the Energy Efficiency and Conservation Block Grant
Program (EECBG), which provides grants to cities and other entities to fund programs and
projects that improve energy efficiency and reduce energy use and fossil fuel emissions. In
addition, Southern California Edison (SCE) has agreed to rebate to the City a portion of the
City's payments for electrical service in the event the City reduces its energy consumption.
B. Pursuant to the authority provided by its City Charter, City desires to engage
Consultant to assist the City in obtaining a minimum of $131,827 in EECBG funding in the
manner set forth herein and more fully described in Section 1.
C. Consultant represents that the principal members or staff of the Consultant firm
have the qualifications to perform the Consultant services contemplated by this Agreement in a
good and professional manner; and it desires to perform such services as provided herein.
D. The Consultant understands and acknowledges that the City is under no obligation
to compensate or pay Consultant for any services unless the City receives an amount equal to or
in excess of $131,827 in EECBG funding.
NOW THEREFORE, in consideration of the Parties' performance of the promises,
covenants, and conditions stated herein, and based upon the foregoing recitals, which are hereby
incorporated into this Agreement by this reference, the Parties hereto agree as follows.
1.0 Scope of Services.
1.1. Consultant must provide those services ( "Services ") set forth in the attached
Exhibit A, which is hereby incorporated by this reference. To the extent that there is any conflict
between Exhibit A and this Agreement, this Agreement must control.
1.2. Consultant shall perform all services under this Agreement on a timely, regular
basis and in a manner reasonably satisfactory to the City.
1.3. In performing this Agreement, Consultant must comply with all applicable
provisions of federal, state, and local law.
1.4. As a material inducement to City to enter into this Agreement, Consultant hereby
represents that it has the experience necessary to undertake the services to be provided. In light
of such status and experience, Consultant hereby covenants that it shall follow the customary
professional standards in performing all services.
1.5. By executing this Agreement, Consultant represents that, to the extent required by
the standard of practice, Consultant (a) has investigated and considered the scope of services to
be performed, (b) has carefully considered how the services should be performed, and (c)
understands the facilities, difficulties and restrictions attending performance of the services under
this Agreement.
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2.0 Term. This term of this Agreement shall commence as of the Effective Date and shall
continue until December 13, 2010 unless previously terminated as provided by this Agreement.
3.0 Consultant's Compensation.
3.1. Contingency. The City shall have no obligation to pay Consultant any
compensation unless and until City receives an amount equal to or in excess of $131,827 in
EECBG funding.
3.2. Rates. Subject to the provisions of Subsections 3.1, 3.3 and 4.1, City will pay
Consultant in accordance with the hourly fee schedule set forth in Exhibit B for services
provided to the satisfaction of the City.
3.3. Cap on Compensation. In no event shall Consultant's compensation exceed the
lesser of: (a) $30,000; or (b) the sum of 20% of the EECBG funding actually received by the
City and 20% of any SCE rebates actually received by the City.
4.0 Timing and Method of Payment.
4.1. City will pay Consultant within 30 days of actual receipt of EECBG funding.
4.2. Consultant must submit to City monthly invoices for all services rendered
pursuant to his Agreement. Such invoices must be submitted within 15 days of the end of the
month during which the services were rendered and must describe in detail the services rendered
during the period, the days worked, number of hours worked, the hourly rates charged, and the
services performed for each day in the period. City will not withhold any applicable federal or
state payroll and other required taxes, or other authorized deductions from payments made to
Consultant.
4.3. Upon 24 hours notice from City, Consultant must allow City or City's agents or
representatives to inspect at Consultant's offices during reasonable business hours all records,
invoices, time cards, cost control sheets and other records maintained by Consultant in
connection with this Agreement. City's rights under this Section 4.2 shall survive for two years
following the termination of this Agreement.
5.0 Termination.
5.1. 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 thirty
30 days prior to the date of termination.
5.2. City may terminate this Agreement upon 10 days' notice to Consultant if
Consultant fails to provide satisfactory evidence of renewal or replacement of comprehensive
general liability insurance as required by this Agreement at least 20 days before the expiration
date of the previous policy.
5.3. City may terminate this Agreement upon 2 days' notice to Consultant in the event
the City does not receive a minimum of $131,827 in EECBG funding.
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•
6.0 Party Representatives.
6.1. The City Manager is the City's representative for purposes of this Agreement.
6.2. Sid Pelston is the Consultant's representative for purposes of this Agreement. It
is expressly understood that the experience, knowledge, capability, and reputation of Sid Pelston
were a substantial inducement for City to enter into this Agreement. Therefore, Sid Pelston shall
be responsible during the term of this Agreement for directing all activities of Consultant and
devoting sufficient time to personally supervise the services hereunder. Consultant may not
change its representative without the prior written approval of City, which approval shall not be
unreasonably withheld.
7.0 Notices.
7.1. All notices permitted or required under this Agreement shall be deemed made
when personally delivered or when mailed 48 hours after deposit in the U.S. Mail, first class
postage prepaid and addressed to the party at the following addresses:
To City: City of Seal Beach
911 Seal Beach Boulevard
Seal Beach, California 90740
Attn: City Manager
To Consultant: Sid Pelston
Energy Innovation Group, LLC
Managing Director
11965 Venice Blvd. Ste 408
Los Angeles, CA 90066
(310) 313 -1917 (tel)
(310) 313 -7605 (fax)
7.2. Actual notice shall be deemed adequate notice on the date actual notice occurred,
regardless of the method of service.
8.0 Independent contractor.
8.1. 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, and all personnel shall possess the qualifications, permits, and licenses required by
State and local law to perform such Services, including, without limitation, a City of Seal Beach
business license as required by the Seal Beach Municipal Code. Consultant will determine the
means, methods, and details of performing the services. Consultant shall be solely responsible
for the satisfactory work performance of all personnel engaged in performing the services and
compliance with the customary professional standards.
8.2. 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
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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.
8.3. Consultant shall indemnify and hold harmless City and its elected officials,
officers and employees, servants, designated volunteers, and agents serving as independent
contractors in the role of city or agency officials, from any and all liability, damages, claims,
costs and expenses of any nature to the extent arising from Consultant's alleged violations of
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 5.
9.0 Confidentiality. Consultant covenants that all data, documents, discussion, or other
information developed or received by Consultant or provided for performance of this Agreement
are deemed confidential and shall not be disclosed by Consultant without prior written
authorization by City. City shall grant such authorization if applicable law requires disclosure.
All City data shall be returned to City upon the termination of this Agreement. Consultant's
covenant under this section shall survive the termination of this Agreement.
10.0 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.
11.0 Assignment. Consultant must 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.
12.0 Insurance.
12.1. Liability Insurance. Consultant shall procure and maintain in full force and effect
for the duration of this Agreement insurance against claims for injuries to persons or damages to
property and professional negligence which may arise from or in connection with the
performance of the services hereunder by Consultant, and its agents, representatives, employees
and subconsultants.
12.2. Minimum Scope of Insurance. Unless otherwise approved by City, coverage shall
be at least as broad as:
12.2.1 Insurance Services Office Commercial General Liability coverage
(occurrence form CG 0001).
12.2.2 Insurance Services Office form number CA 0001 (Ed. 1/87)
covering Automobile Liability, code 1 (any auto).
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12.2.3 Worker's Compensation insurance as required by the State of
California and Employer's Liability Insurance.
12.2.4 Professional Liability insurance. Consultant shall provide to City
the standard form issued by the carrier.
12.3. Minimum Limits of Insurance. Consultant shall maintain limits no less than:
12.3.1 General Liability: $2,000,000 per occurrence and in the aggregate
for bodily injury, personal injury and property damage. Commercial General Liability Insurance
or other form with a general aggregate limit shall apply separately to this Agreement or the
general limit shall be twice the required occurrence limit.
12.3.2 Automobile Liability: $1,000,000 per accident for bodily injury
and property damage.
12.3.3 Employer's Liability: $1,000,000 per accident and in the aggregate
for bodily injury or disease and Workers' Compensation Insurance in the amount required by
law.
12.3.4 Professional Liability: $1,000,000 per claim/aggregate.
12.4. Deductibles and Self- Insured Retentions. Consultant shall inform City of any
deductibles or self- insured retentions except with respect to professional liability insurance.
12.5. Other Insurance Provisions. The general liability and automobile liability policies
are to contain, or be endorsed to contain, the following provisions:
12.6. City, its officers, officials, employees, designated volunteers and agents serving as
independent contractors in the role of city or agency officials, are to be covered as additional
insureds as respects: liability arising out of activities performed by or on behalf of Consultant;
products and completed operations of Consultant; premises owned, occupied or used by
Consultant; or automobiles owned, leased, hired or borrowed by Consultant. The coverage shall
contain no limitations on the scope of protection afforded to City, its officers, officials,
employees, designated volunteers or agents serving as independent contractors in the role of city
or agency officials which are not also limitations applicable to the named insured.
12.7. For any claims related to this Agreement, Consultant's insurance coverage shall
be primary insurance as respects City, its officers, officials, employees, designated volunteers
and agents serving as independent contractors in the role of city or agency officials. Any
insurance or self- insurance maintained by City, their officers, officials, employees, designated
volunteers or agents serving as independent contractors in the role of city or agency officials
shall be excess of Consultant's insurance and shall not contribute with it.
12.8. Consultant's insurance shall apply separately to each insured against whom claim
is made or suit is brought, except with respect to the limits of the insurer's liability.
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12.9. Each insurance policy required by this clause shall be endorsed to state that
coverage shall not be canceled or materially modified except after 30 days prior written notice by
first class mail has been given to City, or 10 days prior written notice by express overnight mail
if cancellation is due to nonpayment of premiums.
12.10. Each insurance policy, except for the professional liability policy, required by this
clause shall expressly waive the insurer's right of subrogation against City and its elected
officials, officers, employees, servants, attorneys, designated volunteers, and agents serving as
independent contractors in the role of city or agency officials.
12.11. Acceptability of Insurers. Insurance is to be placed with insurers with a current
A.M. Best's rating of no less than A:VII unless waived in writing by City's Risk Manager.
12.12. Verification of Coverage. All insurance coverages shall be confirmed by
execution of endorsements on forms approved by the City. The endorsements are to be signed
by a person authorized by that insurer to bind coverage on its behalf. All endorsements are to be
received and approved by City before services commence. As an alternative to City forms,
Consultant's insurer may provide complete, certified copies of all required insurance policies,
including endorsements effecting the coverage required by these specifications.
13.0 Indemnification, Hold Harmless, and Duty to Defend.
13.1. Indemnity for Professional Services. In connection with its professional design
services, Consultant shall defend, hold harmless and indemnify City, and its elected officials,
officers, employees, servants, designated volunteers, and those City agents serving as
independent contractors in the role of city or agency officials (collectively, "Indemnitees "), with
respect to any and all claims, demands, damages, liabilities, losses, costs or expenses
(collectively, "Claims" hereinafter), including but not limited to Claims relating to death or
injury to any person and injury to any property, to the extent to which they arise out of, pertain
to, or relate to the negligence, recklessness, or willful misconduct of Consultant or any of its
officers, employees, subcontractors, or agents in the performance of its professional services
under this Agreement, but not to the extent the result of the negligence or willful misconduct of
the City or of other third parties not under the control or the supervision of Consultant..
Consultant's obligation to defend pursuant to this Section 13.1 shall apply independent of any
prior, concurrent or subsequent misconduct, negligent acts, errors or omissions of Indemnitees.
Consultant shall defend Indemnitees in any action or actions filed in connection with any of said
claims with counsel of City's choice, and shall pay all costs and expenses, including all
attorneys' fees actually incurred in connection with such defense.
13.2. Other Indemnities. In connection with all Claims not covered by Section 13.1,
Consultant shall defend, hold harmless and indemnify the Indemnitees with respect to any and all
Claims including but not limited to Claims relating to death or injury to any person and injury to
any property, which arise out of, pertain to, or relate to the acts or omissions of Consultant or any
of its officers, employees, subcontractors, or agents in the performance of this Agreement.
Consultant shall defend Indemnitees in any action or actions filed in connection with any such
Claims with counsel of City's choice, and shall pay all costs and expenses, including all
attorneys' fees and experts' costs actually incurred in connection with such defense.
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Consultant's duty to defend pursuant to this Section 13.2 shall apply independent of any prior,
concurrent or subsequent misconduct, negligent acts, errors or omissions of Indemnitees.
Consultant shall defend Indemnitees in any action or actions filed in connection with any of said
claims, damages, penalties, obligations, or liabilities with counsel of City's choice and shall pay
all costs and expenses, including attorneys' fees actually incurred in connection with such
defense.
14.0 Conflict of Interest.
14.1. 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.
14.2. Consultant further represents 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.
14.3. Consultant 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.
15.0 Equal Opportunity. Consultant affirmatively represents that it is an equal opportunity
employer. Consultant must 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 be limited to, all activities
related to initial employment, upgrading, demotion, transfer, recruitment or recruitment
advertising, layoff, or termination.
16.0 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 Worker's 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.
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17.0 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.
18.0 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.
19.0 Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of California.
20.0 No Third Party Rights. No third party shall be deemed to have any rights hereunder
against either Party as a result of this Agreement.
21.0 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. In no event shall the making by City
of any payment to Consultant constitute or be construed as a waiver by City of any breach of
covenant, or any default which may then exist on the part of Consultant, and the making of any
such payment by City shall in no way impair or prejudice any right or remedy available to City
with regard to such breach or default. 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.
22.0 Prohibited Interests. Consultant maintains and warrants that it has not employed nor
retained any company or person, other than a bona fide employee working solely for Consultant,
to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it
agreed to pay any company or person, other than a bona fide employee working solely for
Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration
contingent upon or resulting from the award or making of this Agreement. For breach or
violation of this warranty, City has the right to rescind this Agreement without liability. For the
term of this Agreement, no member, officer or employee of City, during the term of his or her
service with City, shall have any direct interest in this Agreement, or obtain any present or
anticipated material benefit arising therefrom.
23.0 Attorneys' Fees. If either Party commences an action against the other Party, either
legal, administrative or otherwise, arising out of or in connection with this Agreement, the
prevailing Party in such litigation shall be entitled to have and recover from the losing Party all
of its attorney's fees and other costs incurred in connection with such action.
24.0 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.
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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: CS—di By: At
David Carmany, City Manager �
Name: S ,a AJe L 5
Q)
Its:c.
Attest:
By:
By: .SW,.. Name:
inda Devine, City Clerk
Its:
Approved as to Form:
By: ec ;*c-f-ft."---
Quinn Barrow, City Attorney
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EXHIBIT A
(SCOPE OF SERVICES)
CONSULTANT, under the direction of the CITY'S Project Manager, shall perform the following
services:
Scope of Work
CONSULTANT shall develop an energy efficiency and conservation strategy in connection with
the American Recovery and Reinvestment Act (ARRA), and to help prepare appropriate
documentation to meet California Energy Commission (CEC) and Southern California Edison
(SCE) requirements to qualify for funds.
CONSULTANT to provide project and budget data and guide the CITY to meet the following
requirements:
1. SCO (California State Controller's Office) requirements in regards to the Single Audit
Act
2. Acquire a DUNS number, if needed
3. Current registration in the Central Contractor Registry (CCR)
4. Contractor Status Form, Attachment A
5. Assurance of Compliance forms, Exhibit B
6. Scope of Work documentation, Attachment D
7. A Resolution that meets all CEC requirements, Exhibit 4
8. A budget that meets CEC requirements, Attachment E
9. California Environmental Quality Act (CEQA), Attachment F
10. National Historical Preservation Act (NRHP), Attachment I
11. CEC Financial Management requirements, Attachment J
12. Prepare and file all necessary application papers with the CEC.
13. Gather facility equipment lists, operating data, and prior reports or audits of Police
Department, Public Yards and other CITY or school properties requested by CITY.
14. Complete engineering audit of facilities.
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15. Develop specifications of energy efficiency recommendations, energy savings and
rebates.
16. Provide CITY with Findings Report of opportunities, estimated savings, rebates, and
installed.
17. Provide CITY with project bid package specifications for a published bid process.
18. Arrange pre - installation inspection by utility with contractor to secure rebate amount
approval.
19. Prepare application and feasibility study data to the CEC.
20. Coordinate with the CEC to secure approval of funding and authorization to proceed.
21. Assist CITY in entering into energy services contract with contractors to complete work.
22. Organize pre- construction meeting to establish installation timing, processes and facility
requirements.
23. Oversee contractor installation.
24. Secure written progress reports from contractors.
25. Conduct periodic physical inspections to assure compliance with specifications.
26. Provide CITY with weekly progress report.
27. Oversee commissioning /start-up of project upon completion.
28. File completed project data with the CEC and SCE.
29. Arrange post - installation inspection with utility.
30. Secure all incentives.
Deliverables
CONSULTANT shall submit a comprehensive report of all field data and findings from the
assessment of CITY properties, and the resultant recommendations for CITY consideration in
pursuing energy savings and conservation projects.
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EXHIBIT B
Fee Schedule and Standard Billing Rates
Hourly Fee Schedule:
The following hourly rate schedule shall apply to all services provided in connection with this
agreement.
Title Project Title Rates
Senior Partner Principal $250
Senior Engineer Engineering Manager $200
Engineer Associate Project Engineer $175
Grant Manager Grant Manager $125
Project Manager Project Manager $80
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