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CONTRACT 5900 Professional Services AgreementAgreement No. 5900 Agreement No. _[City Clerk assigns]— PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF EL SEGUNDO AND UTILITY COST MANAGEMENT, LLC This AGREEMENT is made and entered into this 61h day of April, 2020, by and between the CITY OF EL SEGUNDO, a municipal corporation and general law city ("CITY") and UTILITY COST MANAGEMENT LLC ("UCM"), a California Limited Liability Company ("CONSULTANT"). The parties agree as follows: A. As partial consideration, CONSULTANT agrees to perform the work listed in the SCOPE OF SERVICES, below; B. As additional consideration, CONSULTANT and CITY agree to abide by the terms and conditions contained in this Agreement; C. As additional consideration, CITY agrees to pay CONSULTANT as specified in Exhibit A. 2. SCOPE OF SERVICES. A, CONSULTANT will perform services listed in the attached Exhibit "A," which is incorporated by reference. B. CONSULTANT will, in a professional manner, furnish all of the labor, technical, administrative, professional and other personnel, all supplies and materials, equipment, printing, vehicles, transportation, office space and facilities, and all tests, testing and analyses, calculation, and all other means whatsoever, except as herein otherwise expressly specified to be furnished by CITY, necessary or proper to perform and complete the work and provide the professional services required of CONSULTANT by this Agreement. 3. PERFORMANCE STANDARDS, While performing this Agreement, CONSULTANT will use the appropriate generally accepted professional standards of practice existing at the time of performance utilized by persons engaged in providing similar services. CITY will continuously monitor CONSULTANT's services. CITY will notify CONSULTANT of any deficiencies and CONSULTANT will have fifteen (15) days after such notification to cure any shortcomings to CITY's satisfaction. Costs associated with curing the deficiencies will be borne by CONSULTANT. 4. PAYMENTS. For CITY to pay CONSULTANT as specified in Exhibit "A". City of El Segundo Professional Services (REV 2018.05) Page 1 of 11 Agreement No. 5900 Agreement No. _[City Clerk assigns]_ 5. NON -APPROPRIATION OF FUNDS. Payments due and payable to CONSULTANT for current services are within the current budget and within an available, unexhausted and unencumbered appropriation of the CITY. In the event the CITY has not appropriated sufficient funds for payment of CONSULTANT services beyond the current fiscal year, this Agreement will cover only those costs incurred up to the conclusion of the current fiscal year. 6. FAMILIARITY WITH WORK. A. By executing this Agreement, CONSULTANT agrees that it has: Carefully investigated and considered the scope of services to be performed; ii. Carefully considered how the services should be performed, and iii. Understands the facilities, difficulties, and restrictions attending performance of the services under this Agreement. B. If services involve work upon any site, CONSULTANT agrees that CONSULTANT has or will investigate the site and is or will be fully acquainted with the conditions there existing, before commencing the services hereunder. Should CONSULTANT discover any latent or unknown conditions that may materially affect the performance of the services, CONSULTANT will immediately inform CITY of such fact and will not proceed except at CONSULTANT's own risk until written instructions are received from CITY. 7. TERM. The term of this Agreement will be for four (4) years: April 20, 2020, to April 19, 2024. Unless otherwise determined by written amendment between the parties, this Agreement will terminate in the following instances: A. Completion of the work specified in Exhibit "A"; B. Termination as stated in Section 15. A. CONSULTANT will not perform any work under this Agreement until: CONSULTANT furnishes proof of insurance as required under Section 22 of this Agreement; and CITY gives CONSULTANT a written notice to proceed. City of El Segundo Professional Services (REV 201&05) Page 2 of 11 Agreement No. 5900 Agreement No. _[City Clerk assigns)_ B. Should CONSULTANT begin work on any phase in advance of receiving written authorization to proceed, any such professional services are at CONSULTANT's own risk. 9, TIME EXTENSIONS. Should CONSULTANT be delayed by causes beyond CONSULTANT's control, CITY may grant a time extension for the completion of the contracted services. If delay occurs, CONSULTANT must notify the Manager within forty-eight (48) hours, in writing, of the cause and the extent of the delay and how such delay interferes with the Agreement's schedule. The Manager will extend the completion time, when appropriate, for the completion of the contracted services. 10. CONSISTENCY. In interpreting this Agreement and resolving any ambiguities, the main body of this Agreement takes precedence over the attached Exhibits; this Agreement supersedes any conflicting provisions. Any inconsistency between the Exhibits will be resolved in the order in which the Exhibits appear below: A. Exhibit: A: Scope of Work. B. Exhibit., B. Proposal for Services 11. CHANGES. CITY may order changes in the services within the general scope of this Agreement, consisting of additions, deletions, or other revisions, and the contract sum and the contract time will be adjusted accordingly. All such changes must be authorized in writing, executed by CONSULTANT and CITY, The cost or credit to CITY resulting from changes, in the services will be determined in accordance with written agreement between the parties. 12, TAXPAYER IDENTIFICATION NUMBER. CONSULTANT will provide CITY with a Taxpayer Identification Number. 13. PERMITS AND LICENSES. CONSULTANT, at its sole expense, will obtain and maintain during the term of this Agreement, all necessary permits, licenses, and certificates that may be required in connection with the performance of services under this Agreement. 14.WAIVER. CITY's review or acceptance of, or payment for, work product prepared by CONSULTANT under this Agreement will not be construed to operate as a waiver of any rights CITY may have under this Agreement or of any cause of action arising from CONSULTANT's performance. A waiver by CITY of any breach of any term, covenant, or condition contained in this Agreement will not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition contained in this Agreement, whether of the same or different character. 15JERMINATION. A. Except as otherwise provided, CITY may terminate this Agreement at any City of El Segundo Professional Services (REV 2018.05) Page 3 of 11 Agreement No. 5900 Agreement No. _[City Clerk assigns]_ time with or without cause. B. CONSULTANT may terminate this Agreement at any time with CITY's mutual consent. Notice will be in writing at least thirty (30) days before the effective termination date. C. Upon receiving a termination notice, CONSULTANT will immediately cease performance under this Agreement unless otherwise provided in the termination notice. Except as otherwise provided in the termination notice, any additional work performed by CONSULTANT after receiving a termination notice will be performed at CONSULTANT's own cost; CITY will not be obligated to compensate CONSULTANT for such work, D. Should termination occur, all finished or unfinished documents, data, studies, surveys, drawings, maps, reports and other materials prepared by CONSULTANT will, at CITY's option, become CITY's property, and CONSULTANT will receive just and equitable compensation for any work satisfactorily completed up to the effective date of notice of termination, not to exceed the total costs under Section 1(C). E. Should the Agreement be terminated pursuant to this Section, CITY may procure on its own terms services similar to those terminated. F. By executing this document, CONSULTANT waives any and all claims for damages that might otherwise arise from CITY's termination under this Section. G. If termination occurs after UCM has sent its Findings Letter to Client, then Client will remain obligated to pay UCM, pursuant to this Agreement, for any refunds, credits or Future Savings that were identified in the Findings Letter and that are thereafter obtained by Client. UCM may continue to obtain and review Client's utility billing and other information following termination in order to periodically verify whether Client has obtained a refund, credit or Future Savings that was identified in the Findings Letter. 16.OWNERSHIP OF DOCUMENTS. All documents, data, studies, drawings, maps, models, photographs and reports prepared by CONSULTANT under this Agreement are CITY's property, CONSULTANT may retain copies of said documents and materials as desired but will deliver all original materials to CITY upon CITY's written notice. CITY agrees that use of CONSULTANT's completed work product, for purposes other than identified in this Agreement, or use of incomplete work product, is at CITY's own risk. City of El Segundo Professional Services (REV 2018.05) Page 4 of 11 Agreement No. 5900 Agreement No. _[City Clerk assigns]_ 17. PUBLICATION OF DOCUMENTS. Except as necessary for performance of service under this Agreement, no copies, sketches, or graphs of materials, including graphic art work, prepared pursuant to this Agreement, will be released by CONSULTANT to any other person or public CITY without CITY's prior written approval. All press releases, including graphic display information to be published in newspapers or magazines, will be approved and distributed solely by CITY, unless otherwise provided by written agreement between the parties. 18. INDEMNIFICATION. A. CONSULTANT agrees to the following: Indemnification for Professional Services. CONSULTANT will save harmless and indemnify and at CITY's request reimburse defense costs for CITY and all its officers, volunteers, employees and representatives from and against any and all suits, actions, or claims, of any character whatever, brought for, or on account of, any injuries or damages sustained by any person or property resulting or arising from any negligent or wrongful act, error or omission by CONSULTANT or any of CONSULTANT's officers, agents, employees, or representatives, in the performance of this Agreement, except for such loss or damage arising from CITY's sole negligence or willful misconduct, it. Indemnification for other Damages. CONSULTANT indemnifies and holds CITY harmless from and against any claim, action, damages, costs (including, without limitation, attorney's fees), injuries, or liability, arising out of this Agreement, or its performance, except for such loss or damage arising from CITY's sole negligence or willful misconduct. Should CITY be named in any suit, or should any claim be brought against it by suit or otherwise, whether the same be groundless or not, arising out of this Agreement, or its performance, CONSULTANT will defend CITY (at CITY's request and with counsel satisfactory to CITY) and will indemnify CITY for any judgment rendered against it or any sums paid out in settlement or otherwise. B. For purposes of this section "CITY" includes CITY's officers, officials, employees, agents, representatives, and certified volunteers. C. It is expressly understood and agreed that the foregoing provisions will survive termination of this Agreement for claims and lawsuits filed within two years following the expiration of this Agreement. City of El Segundo Professional Services (REV 2018.05) Page 5 of 11 Agreement No. 5900 Agreement No. _[City Clerk assigns]_ D. The requirements as to the types and limits of insurance coverage to be maintained by CONSULTANT as required by Section 22, and any approval of said insurance by CITY, are not intended to and will not in any manner limit or qualify the liabilities and obligations otherwise assumed by CONSULTANT pursuant to this Agreement, including, without limitation, to the provisions concerning indemnification. 19,ASSIGNABILITY. This Agreement is for CONSULTANT's professional services. CONSULTANT's attempts to assign the benefits or burdens of this Agreement without CITY's written approval are prohibited and will be null and void. 20.INDEPENDENT CONTRACTOR. CITY and CONSULTANT agree that CONSULTANT will act as an independent contractor and will have control of all work and the manner in which it is performed. CONSULTANT will be free to contract for similar service to be performed for other employers while under contract with CITY. CONSULTANT is not an agent or employee of CITY and is not entitled to participate in any pension plan, insurance, bonus or similar benefits CITY provides for its employees. Any provision in this Agreement that may appear to give CITY the right to direct CONSULTANT as to the details of doing the work or to exercise a measure of control over the work means that CONSULTANT will follow the direction of the CITY as to end results of the work only. 21.AUDIT OF RECORDS. CONSULTANT will maintain full and accurate records with respect to all services and matters covered under this Agreement. CITY will have free access at all reasonable times to such records, and the right to examine and audit the same and to make transcript therefrom, and to inspect all program data, documents, proceedings and activities. CONSULTANT will retain such financial and program service records for at least three (3) years after termination or final payment under this Agreement. 22. INSURANCE. A. Before commencing performance under this Agreement, and at all other times this Agreement is effective, CONSULTANT will procure and maintain the following types of insurance with coverage limits complying, at a minimum, with the limits set forth below: Tvi)e of Insurance Limits Commercial general liability: $2,000,000 (aggregate) Professional Liability $1,000,000 City of El Segundo Professional Services (REV 2018,05) Page 6 of 11 Agreement No. 5900 Agreement No. _[City Clerk assigns]_ Business automobile liability $1,000,000 (hired and non - owned) Workers compensation Statutory requirement B. Commercial general liability insurance will meet or exceed the requirements of the most recent ISO -CGL Form. The amount of insurance set forth above will be a combined single limit per occurrence for bodily injury, personal injury, and property damage for the policy coverage. Liability policies will be endorsed to name CITY, its officials, and employees as "additional insureds" under said insurance coverage and to state that such insurance will be deemed "primary" such that any other insurance that may be carried by CITY will be excess thereto. Such endorsement must be reflected on ISO Form No. CG 20 10 11 85 or 88, or equivalent. Such insurance will be on an "occurrence," not a "claims made," basis and will not be cancelable or subject to reduction except upon thirty (30) days prior written notice to CITY. C. Professional liability coverage will be on an "occurrence basis" if such coverage is available, or on a "claims made" basis if not available. When coverage is provided on a "claims made basis," CONSULTANT will continue to renew the insurance for a period of three (3) years after this Agreement expires or is terminated. Such insurance will have the same coverage and limits as the policy that was in effect during the term of this Agreement and will cover CONSULTANT for all claims made by CITY arising out of any errors or omissions of CONSULTANT, or its officers, employees or agents during the time this Agreement was in effect. D. Automobile coverage will be written on ISO Business Auto Coverage Form CA 00 01 06 92, including symbol 1 (Any Auto). E. CONSULTANT will furnish to CITY duly authenticated Certificates of Insurance evidencing maintenance of the insurance required under this Agreement and such other evidence of insurance or copies of policies as may be reasonably required by CITY from time to time. Insurance must be placed with insurers with a current A.M. Best Company Rating equivalent to at least a Rating of "AMI." F. Should CONSULTANT, for any reason, fail to obtain and maintain the insurance required by this Agreement, CITY may obtain such coverage at CONSULTANT's expense and deduct the cost of such insurance from payments due to CONSULTANT under this Agreement or terminate pursuant to Section 15, City of El Segundo Professional Services (REV 2018.05) Page 7 of 11 Agreement No. 5900 Agreement No. _[City Clerk assigns]_ 23. USE OF SUBCONTRACTORS. CONSULTANT must obtain CITY's prior written approval to use any consultants while performing any portion of this Agreement. Such approval must approve of the proposed consultant and the terms of compensation. 24. INCIDENTAL TASKS. CONSULTANT will meet with CITY monthly to provide the status on the project, which will include a schedule update and a short narrative description of progress during the past month for each major task, a description of the work remaining and a description of the work to be done before the next schedule update. 25. NOTICES. All communications to either party by the other party will be deemed made when received by such party at its respective name and address as follows: If to CONSULTANT: Utility Cost Management LLC 1100 W. Shaw Ave., Suite 126 Fresno, CA 93711 Attention: Chris Wiehl Phone: 559-261-9237 Email: c kvdW,,uti i it %,cost manaaeme nt. con, If to CITY. City of El Segundo 350 Main Street El Segundo, CA Attention: Joe Lillio, Director Phone: (310) 524-2315 Email: illllio@elsegundo.org Any such written communications by mail will be conclusively deemed to have been received by the addressee upon deposit thereof in the United States Mail, postage prepaid and properly addressed as noted above. In all other instances, notices will be deemed given at the time of actual delivery. Changes may be made in the names or addresses of persons to whom notices are to be given by giving notice in the manner prescribed in this paragraph. 26. CONFLICT OF INTEREST, CONSULTANT will comply with all conflict of interest laws and regulations including, without limitation, CITY's conflict of interest regulations. 27. SOLICITATION. CONSULTANT maintains and warrants that it has not employed nor retained any company or person, other than CONSULTANT'S bona fide employee, 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 CONSULTANT's bona fide employee, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. Should CONSULTANT breach or violate this warranty, CITY may rescind this Agreement without liability. 28.THIRD PARTY BENEFICIARIES. This Agreement and every provision herein is generally for the exclusive benefit of CONSULTANT and CITY and not for the benefit of City of El Segundo Professional Services (REV 2018.05) Page 8 of 11 Agreement No. 5900 Agreement No. _[City Clerk assigns]_ any other party. There will be no incidental or other beneficiaries of any of CONSULTANT's or CITY's obligations under this Agreement. 29. INTERPRETATION, This Agreement was drafted in and will be construed in accordance with the laws of the State of California, and exclusive venue for any action involving this agreement will be in Los Angeles County, 30. COMPLIANCE WITH LAW. CONSULTANT agrees to comply with all federal, state, and local laws applicable to this Agreement. 31. ENTIRE AGREEMENT. This Agreement, and its Exhibit(s), sets forth the entire understanding of the parties. There are no other understandings, terms or other agreements expressed or implied, oral or written. This Agreement will bind and inure to the benefit of the parties to this Agreement and any subsequent successors and assigns. 32. RULES OF CONSTRUCTION. Each Party had the opportunity to independently review this Agreement with legal counsel, Accordingly, this Agreement will be construed simply, as a whole, and in accordance with its fair meaning; it will not be interpreted strictly for or against either Party. 31SEVERABILITY. If any portion of this Agreement is declared by a court of competent jurisdiction to be invalid or unenforceable, then such portion will be deemed modified to the extent necessary in the opinion of the court to render such portion enforceable and, as so modified, such portion and the balance of this Agreement will continue in full force and effect. 34.AUTHORITY/MODIFICATION. The Parties represent and warrant that all necessary action has been taken by the Parties to authorize the undersigned to execute this Agreement and to engage in the actions described herein. This Agreement may be modified by written amendment, 35.ACCEPTANCE OF ELECTRONIC SIGNATURES. The Parties agree that this Agreement, agreements ancillary to this Agreement, and related documents to be entered into in connection with this Agreement will be considered signed when the signature of a party is delivered by electronic (.pdo or facsimile transmission. Such electronic or facsimile signature will be treated in all respects as having the same effect as an original signature. 36. CAPTIONS. The captions of the paragraphs of this Agreement are for convenience of reference only and will not affect the interpretation of this Agreement. 37. TIME IS OF ESSENCE. Time is of the essence for each and every provision of this Agreement. City of El Segundo Professional Services (REV 2018.05) Page 9 of 11 Agreement No. 5900 Agreement No. _[City Clerk assigns]_ 38. FORCE MAJEURE. Should performance of this Agreement be prevented due to fire, flood, explosion, acts of terrorism, war, embargo, government action, civil or military authority, the natural elements, or other similar causes beyond the Parties' reasonable control, then the Agreement will immediately terminate without obligation of either party to the other. 39.STATEMENT OF EXPERIENCE. By executing this Agreement, CONSULTANT represents that it has demonstrated trustworthiness and possesses the quality, fitness and capacity to perform the Agreement in a manner satisfactory to CITY. CONSULTANT represents that its financial resources, surety and insurance experience, service experience, completion ability, personnel, current workload, experience in dealing with private consultants, and experience in dealing with public agencies all suggest that CONSULTANT is capable of performing the proposed contract and has a demonstrated capacity to deal fairly and effectively with and to satisfy a public CITY. [Signatures on next page] City of El Segundo Professional Services (REV 2018.05) Page 10 of 11 Agreement No. 5900 Agreement No. _[City Clerk assigns]_ IN WITNESS WHEREOF the parties hereto have executed this Agreement the day and year first hereinabove written, CITY OF EL SEGUNDO 001 Joe Lill' Finance Director ATTEST: t 4 Tracy Weaver, City Clerk APPROVED AS TO FORM: for Mark D. Hensley, City Attorney JL 4/17/2020 City of El Segundo Professional Services (REV 2018.05) Page 11 of 11 UTILIT ST MAN LLC Chris i hl VP of Marketing & Sales & Field Analyst Agreement No. 5900 EXHIBIT A - AGREEMENT This agreement is made by and between Utility Cost Management LLC ("UCM") and the entity signing below ("Client") as follows: 1. Applicable to Client's Utility Accounts. Unless otherwise stated in an addendum initialed by both parties, this Agreement will apply to all water, sewer, garbage, gas and electricity accounts (and any related utility user taxes, other taxes, assessments, surcharges or fees) with respect to which Client: (a) is receiving utility service as of the Effective Date (as defined below), (b) has received utility service within three years prior to the Effective Date, (c) receives utility service within one year after the Effective Date, or (d) has permitted or authorized UCM to obtain a copy of the utility bill. The water, sewer, garbage, gas and electric accounts described in this paragraph are hereinafter referred to as "Utility Accounts". The "Effective Date", as that term is used above, is the first day of the calendar month after both UCM and Client have signed this Agreement. 2. Client to Provide Utility Bills. Oil or promptly after Client's execution of this Agreement, Client will provide UCM with a copy of at least one month's utility bills for all of Client's Utility Accounts. 3. UCM Authorized to Obtain Information on Utility Accounts. UCM is hereby authorized to obtain information relating to the Utility Accounts directly from utility provider personnel and utility provider web sites. If site visits are necessary, UCM will first obtain proper authorization. 4. UCM's Findings Letter. UCM will use its best efforts to identify the basis for any refunds, credits or Future Savings (as defined below) on Client's Utility Accounts. UCM will send one or more a "Findings Letters" to Client that generally sets forth the basis for any refunds, credits or Future Savings identified by UCM. UCM may, from time to time, supplement or amend the Findings Letter. 5. Steps to Obtain Refunds or Savings. UCM is authorized by Client to take steps to obtain the refunds, credits or Future Savings identified in the Findings Letter. Such steps may include, but are not limited to, communicating, negotiating and dealing with utility providers (or, in the case of utility user taxes or other governmental charges, the appropriate government entity), and seeking relief from the California Public Utilities Commission in a complaint proceeding or other proceeding. 6. Cooperation By Client. Client will cooperate with UCM, as reasonable, in UCM's efforts to carry out the purposes and intent of this Agreement. Such cooperation will include, but not be limited to, providing information upon request by UCM concerning Client's utility expenditures, utility service and operations. 7. UCM's Compensation. Client will pay UCM after Client has received refunds, credits, and Future Savings pursuant to the terms set forth in both (a) and (b) below. (a) Refunds or Credits. If Client receives a refund or credit that was identified in the Findings Letter, then Client will pay to UCM 30% of the amount refunded or credited. The amount of the refund or credit for this purpose will include all amounts refunded or credited (including any portion attributable to interest) for any overcharges that were incurred by Client prior to the date that the overcharges no longer appeared on the Client's utility bill. Payment of UCM's 30% compensation is due within 30 days of the date Client has received verified refunds & credits. (b) Future Savings. If Client obtains Future Savings that were identified in the Findings Letter, then Client will pay UCM 30% of such Future Savings that accrue during a Four -Year Savings Period. "Future Savings" is the amount by which Client's charges on its Utility Accounts are reduced as a result of a change in the billing rate, calculation, method or procedure. Future Savings will be calculated as the difference between the amount Client was billed on its Utility Accounts during the Four -Year Savings Period, and the amount that it would have been billed on its Utility Accounts during the Four -Year Savings Period if there had been no change in its billing rate, calculation, method or procedure. The Four -Year Savings Period begins on the date that the change in the billing rate, calculation, method Initials: Initials: Agreement No. 5900 or procedure is first reflected on Client's utility bill, and ends four years thereafter. UCM will submit invoices periodically to Client for payment based on the Future Savings as they accrue. The invoices will verify (a) that Future Savings have actually been realized by Client, and (b) the amount of such Future Savings. The compensation under this subparagraph will not include compensation for Future Savings that are: (a) the result of a reduction in the amount of utility usage by Client, or (b) the result of Client's utilization of a different utility supplier that provides lower cost utility service. Payment of UCM's 30% compensation is due within 30 days of the date Client has received verified Future Savings. (c) Client's Prior Knowledge of Basis For Refund, Credit, or Future Savings. Client is not obligated to pay UCM pursuant to this paragraph for any refund, credit or Future Savings received by Client for which Client had submitted to the utility provider a written claim prior to the date of UCM's Findings Letter, However, Client is obligated to pay UCM pursuant to this paragraph whether or not Client knew of the basis for the refund, credit or Future Savings prior to the date of UCM's Findings Letter, and whether or not Client's receipt of the refund, credit or Future Savings was the result of steps taken by UCM or others, including attorneys. 8. Term; Effect. The term of this Agreement is four (4) years from the date of execution by the Client, or 7 days after either party provides written notice of termination to the other party, whichever is earlier. Upon termination, UCM will cease all work on behalf of Client. However, if termination occurs after UCM has sent its Findings Letter to Client, then Client will remain obligated to pay UCM, pursuant to this Agreement, for any refunds, credits or Future Savings that were identified in the Findings Letter and that are thereafter obtained by Client. UCM may continue to obtain and review Client's utility billing and other information following termination in order to periodically verify whether Client has obtained a refund, credit or Future Savings that was identified in the Findings Letter. 9. If Client Is Not Utility Customer. By providing a copy of any utility bill to UCM, Client is thereby agreeing that the Utility Account represented by such bill will be governed by this Agreement, regardless of whether or not Client is the Utility Customer with respect to such Utility Account. For purposes of this Agreement, the Utility Customer is the entity that (i) is named on the Utility Account as reflected by the utility bill, (ii) receives the utility service on the Utility Account, (iii) pays for or is liable for the charges on the Utility Account, or (iv) is the owner of the property at which the utility service is provided on the Utility Account. If Client is not the Utility Customer for a Utility Account then, with respect to that Utility Account, Client represents that it is signing this Agreement in its capacity as agent for the Utility Customer, and as such is authorized to legally bind the Utility Customer to the terms of this Agreement. Client further agrees that the terms of this Agreement will be equally binding on both Client and Customer, that all references in this Agreement to "Client" will also be deemed to be references to the Utility Customer, and that Client and the Utility Customer will be jointly and severally liable for payment of UCM's compensation under this Agreement. 10. No Legal Services. Client acknowledges and understands that: (1) Only an attorney can Provide legal services or advice, (2) UCM is not an attorney or law firm, and does not and will not provide legal services or advice, (3) UCM does not and will not act as an attorney for Client or any other person, (4) Nothing in this Agreement, and no act, omission or statement by UCM, or its owners or employees, will be construed to create an attorney-client relationship between UCM and Client or any other person, (5) UCM is not subject to the California Rules of Professional Conduct, which govern the conduct of attorneys, and (6) Client should consult an attorney if it wishes to receive legal services or advice. 11. Disclosure of Information. UCM may obtain information that pertains to Client's business, operations, or affairs, including but not limited to its utility charges and utility usage. Client expressly authorizes UCM to use and disclose such information to others as necessary or convenient to carry out the services contemplated by this Agreement. 12. Release of Claims Against UCM. Client acknowledges and agrees that UCM has made no express or implied representation or warranty that it will be successful in identifying or obtaining any refunds, credits, or Future Savings on Client's Utility Accounts. Client hereby covenants not to bring any action for damages against UCM that is based upon or relates to any failure by UCM to identify or obtain refunds, credits, or Future Savings to which Client was or is entitled. 13. Representations Made By Client. It may become necessary for Client to make certain representations to the utility provider or other entity in order obtain refunds, credits or Future Savings identified by UCM in its Findings Letter. Client hereby warrants that any such representations made by Client will be true and correct in all respects. Initials: Initials: Agreement No. 5900 14. Late Payment Penalty. If payment of any invoice is not received in accordance with Section 7, then interest on the amount owing will accrue at the rate of 1% per month (prorated on a daily basis). Interest will continue to accrue at 1% per month (prorated on a daily basis) on the entire amount due until paid in full. 15. Applicable Law. This Agreement is executed in and intended to be performed in the State of California, and the laws of that state will govern its interpretation and effect. 16. Venue. Venue in any legal action arising from or related to this agreement will be Fresno County, California. 17. Paragraph References. A reference to a "paragraph" of this Agreement includes both the numbered paragraph, as well the subparagraphs, if any, that are part of such paragraph. Subparagraphs are designated by lower case letters (e.g., "(a)", "(b)", 4'(c) 11). 18. Severability. If any term, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the rest of the agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated. 19. Interpretation. In construing this Agreement, no consideration shall be given to the fact or presumption that any party had a greater or lesser hand in drafting of this Agreement. 20. Entire Agreement. This instrument contains the entire Agreement of the parties relating to the rights granted and obligations assumed in this instrument. Any oral representations or modifications concerning this instrument shall be of no force or effect unless contained in a subsequent written modification signed by the party to be charged 21. Signor Authorized to Bind Client. The individual signing this agreement on behalf of Client hereby represents and war -rants that he/she is authorized to sign on behalf of the Client and to legally bind Client to the terms of this Agreement. UTILITY COST MANAGEMENT LLC Print Client Name By: By: Signature Signature Print Name Print Name Title Title Date Date Initials: Initials: Agreement No. 5900 EXHIBIT B Proposal for SCE Electricity Bill Audit for City of El Segundo by Utility Cost Management LLC Agreement No. 5900 A. Scope of Work When UCM opened for business in 1991, it started by reviewing bills for a variety of small retail establishments. In the early 1990's, the business grew gradually, working with mid-sized commercial customers, such as shopping centers, real estate companies, office buildings, and multifamily housing providers. By 1995, the firm began attracting the attention of school districts, colleges, and universities. UCM eventually analyzed the bills for hundreds of educational sites that serve more than one million California students, including the University of California, Berkeley. UCM's work for public educational institutions lead to its involvement in the State of California's Utility Bill Auditing Program in 1997. In a statewide search for capable utility auditing firms conducted by the California Department of General Services, UCM received the highest point total of any bidder. This project proved to be a milestone in UCM's development for two reasons. First, the sheer size of the project established UCM as capable of handling even the largest, most geographically diverse clients. Second, the project enhanced a long relationship with public entities that continues to this day. In 2008, the California Special Districts Association (CSDA) selected UCM for its Bill Auditing project for its members. 12 years later, UCM is still working on this project for CSDA members. Since 1997, UCM's public entity clients have included approximately 90 cities including the Citv of El Segundo back in 2008 (see attached letter of recommendation), 30 community service districts, 40 water districts and agencies, 12 recreation and park districts, two counties, five departments of the State of California (Department of Corrections, Department of Consumer Affairs, Military Department, Department of General Services, State Lottery Commission), and 25 school and college districts. The scope of services provided by UCM for all of these past public entity clients is described further below. 1. Objective UCM's objective on this project will be to identify and obtain all refunds and ongoing savings opportunities on the City's Southern California Edison (SCE) electricity bill and to measure and verify those savings over the life of the contract. Furthermore, we aim to accomplish this objective without imposing significant demands on City staff. 2. Tasks, approach, and brief description Fact-finding: UCM gathers and organizes historical billing information on the SCE accounts serving City facilities. The simplest and most effective way to complete the fact-finding stage begins with the City 2 Agreement No. 5900 providing one copv of all SCE electricity bills. From there, UCM utilizes a "Customer Information Release Form" authorizing SCE to release historical billing data directly to UCM. This form is required by the utilities in accordance with CPUC directives. By utilizing this Customer Information Release Form, we avoid the need for significant involvement by City personnel in performing most of our fact-finding work. If the City cannot provide one copy of each utility bill, it is possible for UCM to rely solely on the release form to complete its fact-finding efforts. However, if we adopt this approach, we require a list of the utility SCE account numbers serving each facility. Another option, if we are given access to files containing past utility bills, is for UCM to gather necessary information directly from the City's files. No City personnel are needed to assist with this effort. In this situation, the release form mentioned above is used to supplement information gathered. Site Reviews: If necessary, UCM visits City locations to gather additional information. These site visits are sometimes helpful in verifying billing practices, metering configurations, or areas served by different accounts. Other than authorizing and providing physical access to the site under review, there is typically no involvement required from City staff on site reviews. Utility Bill Analysis: UCM analyzes the data accumulated in light of applicable tariffs, statutes, and CPUC decisions. All City SCE accounts are reviewed to determine whether they are being billed appropriately, and whether they have been billed appropriately in the past. UCM's analysis includes, but is not limited to, the investigation of billing calculations, inapplicable rate schedules, proper metering of services, optional rates, applicability of taxes and surcharges, baseline and lifeline allowance calculations, meter multipliers, and the applicability of all rules and regulations affecting billing. UCM uses a proprietary software program that we developed to compare the financial impact of the myriad rate choices under various scenarios of future usage characteristics. Historical billing data is normally the starting point for estimating expected future usage characteristics. However, we believe that obtaining an understanding of how and why a customer uses electricity, at any particular facility gives us additional insight into potential future usage scenarios, which in turn may affect our rate recommendations. We believe that UCM's analysis of SCE rates and tariffs is unique in that we do more than just compare potential rate options. Instead, we review the rates and tariffs in-depth, looking for areas where the utilities may be misapplying them. During the course of an audit we may come across a tariff provision that is new, different or unusual. This might lead us to conduct research into the background, purpose and intent behind the tariff provision to aid in our understanding of how it was meant to be applied in practice. This research may entail investigating the legislative history, enabling statutes, CPUC decisions and resolutions, utility advice letters, and other 3 Agreement No. 5900 documentation related to the tariff provision. Furthermore, customers are often surprised to learn that tariffs are not always clear and unambiguous. In fact, over the years we have found that ambiguities often exist in the tariff language. SCE often apply these ambiguities in their own favor, even though CPUC decisions clearly state that tariff ambiguities should be interpreted in favor of the crrstoiner. We make a point of spotting these tariff ambiguities and ensuring that they are applied in favor of our clients. During the analysis phase, questions about specific accounts sometimes arise. The most common questions concern what facilities are served by a particular account and whether the City has any reason to expect future usage characteristics on the account to vary dramatically from past usage characteristics. Questions and responses are normally handled via email, and require an insignificant amount of time from the City. Utility Bill Report Submission: UCM submits a Findings Report summarizing the findings of its review. The report contains an explanation of the grounds for all refund and savings opportunities identified for each SCE account, including calculations of the estimated savings and refunds expected to be achieved. When necessary, UCM prepares all forms required to initiate changes to utility accounts. If unresolved issues remain after the initial report submission, UCM keeps the City apprised of new developments Utility Bill Implementation of Changes/Recovery of Refunds: UCM takes all necessary steps to implement recommended changes and collect refunds for past overcharges. This work includes preparing documentation supporting UCM's requests and meeting with SCE personnel to discuss each request. UCM also negotiates with SCE authorities to ensure that refund calculations are acceptable and are paid to the City in a timely manner. Once a rate change or a refund has been approved, we notify the City of this development. If UCM believes a utility provider has unfairly denied any request on behalf of a City, we may, with the City's permission, appeal the utility's decision to the CPUC. No involvement from City staff is required for the implementation of rate changes and refund requests, except that the City must authorize UCM to make the rate changes or refund requests that are described in the Findings Report. The scope of UCM's work for its clients (including all of its past public entity clients) has always included not just requesting rate changes or refunds for the client, but also actually obtaining them. In other words, we submit requests for rate changes as well as any refund requests; we work closely and collegially with SCE personnel to obtain the requested rate change or refund from SCE voluntarily; and if SCE denies the rate change or refund request, then we may, with the City's permission, pursue the requests at the CPUC. Ongoing Consultation, Measurement & Verification, and Invoicing: Because utility rates and regulations are constantly changing, UCM continues to advise its clients of new savings 4 Agreement No. 5900 opportunities that arise after our initial review, for as long as we share in the savings under the terms of the agreement. Similarly, clients' utility usage characteristics often change over time. We continue to monitor City utility usage characteristics during the contract term and may recommend new savings opportunities that arise from these changes. During the period of shared savings, UCM sends invoices every three months that set forth UCM's measurement and verification of the client's savings. This measurement and verification uses the City's actual billing inputs during the period covered by the invoice. Based on these actual billing inputs, we calculate the amount the City would have paid if they had remained on their old rate schedule. We then subtract from this the amount the City actually paid on their newly -assigned rate. The difference is the amount saved by the City during the three-month invoice period. Since UCM obtains billing input data directly from the utility provider, very little involvement from City staff is required for invoicing and measurement and verification of savings. 3. Work Product The written work product from the above tasks will be as follows. Findings Report: The Findings Report states the expected amount of any refunds and ongoing savings identified. For identified refunds, the Findings Report describes the justification for the refunds by making reference to supporting tariffs, statutes or CPUC decisions. For identified ongoing savings, the Findings Report recommends the specific rate schedule or rate option the City should switch to, the tariff justification for making the switch, and the estimated ongoing savings that will result from the switch. Invoices: Since our fee is calculated based on the savings achieved, we believe it is critical to verify that savings have actually been achieved and to provide the City with detailed support for how we calculated those savings. This support is contained in the invoices we send to the City every three months. We calculate savings as the difference between the amount the client actually paid on the newly -assigned rate schedule during the invoice period (three months) and the amount they would have paid on the old rate schedule during the same period. Determining what the client "would have paid" on the old rate schedule requires that we apply the City's actual billing inputs (including usage, demand, time -of -use shares, connected load, taxes, surcharges etc.) during the invoice period to the old rate schedule. UCM's proprietary invoicing software makes this calculation simple and accurate, and allows for a very detailed, but easy -to - read, presentation of these calculations on the invoice itself. 4. Meetings We are more than happy to meet with City personnel, at the City's request, at any time and for any reason. However, such meetings are typically not required for UCM to perform its services. 5 Agreement No. 5900 Therefore, we do not anticipate the need for meetings in the course of providing our services to the City unless the City wants them. We would, of course, provide regular email and/or phone updates to City personnel to keep them apprised of our progress on the project and to address any specific issues as they arise. 5. Sole Source Justification While there are many small vendors providing utility bill auditing services throughout the United States, these vendors generally focus on their local service areas because electricity rates and regulations are set on a state -by -state basis. In California, no other vendors have significant experience with public agencies, and none have been active in challenging utility regulations at the CPUC (California Public Utilities Commission) — two essential aspects of the proposed work for the City. 11 Agreement No. 5900 B. Firm Qualifications and Experience The UCM staff assigned to this project will be Michael Kerkorian, Dara Kerkorian, Chris Wiehl, and Beth Rogers. Michael Kerkorian Specific tasks assigned: Overall project management, analysis of SCE and CPUC data, organizing and drafting of written report, negotiations with SCE, creation of computer financial model, presentation of findings, coordination with CPUC. Job classification: Managing Member of UCM Academic decrees and professional registrations: Bachelor of Science, (Stanford University 1988); Member of Association of Energy Engineers; Certified Energy Auditor (CEA) Number of vears of utilitv audit experience: 29 years In 1991, Michael Kerkorian founded Utility Cost Management LLC (UCM). Today, Michael serves as UCM's Managing Member and is responsible for the firm's efforts to reduce clients' costs through the informed application of utility rates and regulations. While he has continued to work in all facets of UCM's business, he has developed a special expertise in electricity rate and tariff issues. Michael has analyzed utility charges for more than one thousand California utility customers. He has successfully resolved numerous rate and tariff issues on behalf of clients, through negotiations with utilities and through CPUC intervention. He has directly supervised the payment of more than $50 million dollars in utility refunds to UCM clients, and has been responsible for initiating rate changes to utility accounts that have reduced clients' ongoing costs by more than $100 million. Michael has testified before the CPUC more than a dozen times, and has also testified on utility - related issues in California Superior Court. He has represented various parties in the CPUC's GRC process, requiring him to analyze utility company costs to evaluate requested utility rate increases. Through this work, Michael has developed an in-depth understanding of utility cost accounting methods. Michael also led a team that was selected by the CPUC to investigate, and report on, the billing practices of an electric service provider with 100,000 customers. Michael has initiated and been involved in many CPUC proceedings that have resulted in important changes to rates and policies affecting California's agricultural, multifamily, low- income, governmental, and commercial customers. These changes frequently have had far- reaching impacts benefitting thousands of utility customers. He has authored articles and given 7 Agreement No. 5900 presentations on utility rate reductions for various organizations, including the Institute of Real Estate Managers, the Association of Housing Management Agents, the Western Growers Association, the California Special Districts Association, and the California Municipal Revenue & Tax Association. In May 2014, Michael was the featured speaker at the California Street Light Association's annual conference for Southern California, and gave a presentation on street light purchase opportunities with SCE. Before founding Utility Cost Management, Michael served as a Senior Consultant in the San Francisco office of Peterson Consulting, where he worked primarily in the area of forensic accounting in a litigation support role. His assignments included financial analysis of CPUC filings of the firm's largest client, Pacific Gas & Electric Company. Dara Kerkorian Specific tasks assigned: Regulatory research, analysis of SCE and CPUC data, statistical analyses Job classification: Analyst Academic degrees and professional registrations: Bachelor of Arts (Stanford University 1984); M.S. in Social Welfare (Columbia University 1992); Ph.D. in Social Welfare (Columbia University 2003) Number of vears of utilitv audit experience: 14 years Dara joined UCM in 2006 and has played a key role in all facets of the organization: auditing, tariff analysis and regulatory research, and advocacy before the CPUC. As lead auditor, she has performed and overseen the completion of hundreds of utility audits for UCM clients served by SCE. While her knowledge of the tariffs of California's four major utilities (i.e. PG&E, SCE, SCG, and SDG&E) is extensive, she is also has undertaken numerous research projects involving regulatory cases and CPUC decisions related to policy and rate structure of California electric, gas, and water utilities. Her tariff analysis and research has resulted in her playing a key role in UCM's advocacy work before the CPUC. This work resulted in the clarification of tariff language and/or changes in the structure and application of specific rate schedules. One of these cases, taken to the CPUC on behalf of the Pleasant Valley Park and Recreation District, succeeded in modifying eligibility criteria for one of SCE's rates and saving the park district thousands of dollars. E3 Agreement No. 5900 Chris Wiehl Specific tasks assigned: Field surveys Job classification: V.P. of Marketing & Sales & Field Analyst Academic decrees and professional registrations: Bachelor of Arts (University of California, Los Angeles 1989); Certified PG&E Energy Efficiency Specialist Number of vears of utilitv audit experience: 22 years Chris joined UCM in 1998, just after the firm was selected by the State to provide utility bill auditing services to public entities throughout California. Chris' first assignment with UCM was to lead the marketing and administrative efforts under the state project. Under his guidance, UCM eventually worked with more than 100 public entities, and the state extended the project for an additional three years. Over the years, Chris has continued to play an important role in UCM's marketing and customer service efforts. In recent years, Chris has taken a lead role in working with UCM clients who are considering purchasing or upgrading their street light systems. As a result, Chris has developed an in-depth understanding of street light issues and how California's major utilities implement street light rates and regulations. In May 2014, Chris was the featured speaker at the Northern California annual conference of the California Street Light Association, where he presented information on new policies and regulations affecting street lights. Prior to joining UCM, Chris was a manager with Richard Heath & Associates, a firm that administers programs for California's public utilities, among others. One of his main assignments with RHA was to manage PG&E's "Energy Partners" program. Beth Rogers Specific tasks assigned: Invoicing, measurement and verification of savings, collection of billing data, implementation of rate changes and refund requests Job classification: Accounts Receivable, Administrative Support Beth joined UCM in 2000. Initially, her primary tasks involved supporting UCM's efforts in CPUC proceedings, and performing various administrative and research tasks. For the past 18 years, she has been in charge three areas that are critical to a well-conducted audit: (1) collection and organization of billing data, (2) implementation of rate changes and refund requests to utility providers, and (3) invoicing and measurement and verification. Over the years, Beth has developed sound working relationships with her counterparts at the utility providers, which helps her in deftly navigating the utility organizations to quickly and efficiently procure billing data p] Agreement No. 5900 and obtain utilities' approval of requested rate changes and refunds. C. Public Entities Audited: Since 1997, UCM's public entity clients have included approximately 90 cities, 30 community service districts, 40 water districts and agencies, 12 recreation and park districts, two counties, five departments of the State of California (Department of Corrections, Department of Consumer Affairs, Military Department, Department of General Services, State Lottery Commission), and more than 20 school and college districts. The following is a partial list of some of UCM's public entity clients. Arrowbear County Water District California Military Dept. / National Guard Central Contra Costa Sanitary District City of Apple Valley City of Bell Gardens City of Canyon Lake City of Cudahy City of Duarte City of Exeter City of Gardena City of Imperial Beach City of Laguna Hills City of Lynwood City of Monterey Park City of Oceanside City of Paso Robles City of Rialto City of San Marcos City of Santee City of Stanton City of Tulare City of Yorba Linda County of San Luis Obispo Hayward Unified School District Lamont Public Utilities District Metropolitan Water District of Southern California Pajaro Valley Water Berkeley Unified School District California Public Utilities Commission Chico Area Recreation & Park District City of Baldwin Park City of Buena Park City of Chula Vista City of Culver City City of El Segundo City of Fountain Valley City of Hercules City of Inglewood City of Lake Elsinore City of McFarland City of Moreno Valley City of Orange City of Port Hueneme City of Ridgecrest City of Santa Clarita City of South El Monte City of Susanville City of Upland Contra Costa Community College District Fallbrook Public Utilities District Hi -Desert Water District Laton Community Services District Nipomo Community Services District Pebble Beach Community 10 California Lottery Commission Castaic Lake Water Agency City of Adelanto City of Barstow City of California City City of Claremont City of Downey City of Encinitas City of Garden Grove City of Highland City of Long Beach City of Lakewood City of Montclair City of Newport Beach City of Paramount City of Rancho Mirage City of San Gabriel City of Santa Barbara City of South Gate City of Tehachapi City of Visalia Costa Mesa Sanitary District Goleta Sanitary District Kern Community College District Livermore Area Rec. & Park District Olivehain Municipal Water District Peralta Community College Management Agency Pleasant Valley Rec & Park District San Mateo County Harbor District South San Luis Obispo County Sanitation District State of California, Dept. of General Services University of California, Berkeley Western Municipal Water District Services District Ross Valley Sanitary District Santa Margarita Water District State of California, Dept. Consumer Affairs State of California, Dept. Health Services Valley -Wide Rec. & Park District Agreement No. 5900 District Rubidoux Community Services District South Coast Water District of State of California, Dept. of Corrections of Stockton East Water District West County Wastewater District As noted above, since 2008, UCM has been an "Endorsed Affiliate" of the California Special Districts Association (CSDA). UCM and CSDA continue to work together to bring quality utility bill auditing services to many CSDA members. CSDA selected UCM as its exclusive utility bill auditing vendor after a thorough search for qualified vendors. For more information on UCM's work with CSDA, please see their attached letter of recommendation. For your review, we have also included a California Cities & Special District client lists. D. Exhibit A — Agreement — see attached. 11 We estimate the following timeline for Utility Bill Auditing project. Time from contract signing... 1 week 2 weeks 4 weeks 6 weeks 8 weeks 9 weeks 12 weeks 16 weeks 30 weeks 173weeks Chris Wiehl Vice President of Marketing & Sales Utilitv Cost Management LLC (UCM) 12 Agreement No. 5900 Task to be completed... 1.UCM obtains copies of one month's utility bills. 2.UCM conducts initial analysis of all bills. 3.UCM obtains historical billing records from utility provider for those accounts that require historical analysis. 4.Site visits, if any, are completed. 5.UCM sends Findings Report to City. 6.UCM obtains City's approval to pursue recommend rate changes or refund requests. TUCM obtains utility provider's approval of rate changes or refunds identified in the Findings Report. 8.Utility rate changes are implemented and rgflecled on Otv'S wility bills. 9.UCM sends first invoice to City covering prior three months of savings. Under the fee proposal submitted herein, invoices would continue to be sent every three months for three years. 10. Final invoice sent to City. UCM's ongoing monitoring of rates ceases.