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CONTRACT 3814 Professional Services Agreement CLOSED3814•, CONTRACT FOR PROFESSIONAL SERVICES BETWEEN THE CITY OF EL SEGUNDO AND UTILITY COST MANAGEMENT, LLC This AGREEMENT is entered into this 6th day of May, 2008, by and between the CITY OF EL SEGUNDO ( "CITY "), and UTILITY COST MANAGEMENT, LLC ( "UCM "). 1. CONSIDERATION. A. As partial consideration, UCM agrees to perform the work listed in the SCOPE OF SERVICES, below; B. As additional consideration, UCM and CITY agree to abide by the terms and conditions contained in this Agreement; C. As additional consideration, CITY agrees to pay UCM as specified below. 2. SCOPE OF SERVICES. UCM will perform the following services: A. Applicable to City's Utility Accounts. This Agreement applies to all, gas and electricity accounts (and any related utility user taxes, other taxes, assessments, surcharges or fees) with respect to which CITY: i. is receiving utility service as of the Effective Date (as defined below), ii. has received utility service within three years prior to the Effective Date, iii. receives utility service within one year after the Effective Date, or iv. has provided UCM with a copy of the utility bill. The 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 CITY have signed this Agreement. B. Client to Provide Utility Bills. On 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.UCM Authorized to Obtain Information on Utility Accounts. UCM is hereby authorized to obtain and review information relating to the Utility Accounts. C. 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 a "Findings Letter" to Client that generally sets forth the basis for any refunds, credits or Future Savings identified by UCM. UCM shall issue the Findings Letter within 90 days from the execution of this Agreement. UCM may, from time to time, supplement or amend its Findings Letter and such supplement or amendment C - U•t 38 1 4 • , will be deemed to have occurred on the date the original Findings Letter was sent to Client. However, in no event shall the supplement or amendment be made after the completion date of this Agreement, i.e. May 5, 2011. D. Steps To Obtain Refunds or Savings. UCM is authorized by the City 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, dealing, and negotiating with utility providers, and seeking relief from the California Public Utilities Commission in a complaint proceeding or other proceeding at no cost to the City. E. Labor, Materials and Equipment Provided By UCM. UCM 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 UCM by this Agreement. 3. PAYMENTS. CITY will pay UCM for its services as follows: A. Refunds or Credits. If CITY receives a refund or credit that was identified in the Findings Letter, then CITY will pay to UCM 50% 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 CITY prior to the date that the overcharges no longer appeared on the City's utility bill. Payment of UCM's compensation is due within 60 days of the date CITY receives an invoice from UCM. B. If CITY obtains Future Savings that were identified in the Findings Letter, then CITY will pay UCM 50% of such Future Savings that accrue during the First -Year Savings Period, 40% of such Future Savings that accrue during the Second -Year Savings Period, and 30% of such Future Savings that accrue during the Third -Year Savings Period. "Future Savings" is the amount by which CITY 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 CITY was billed on its Utility Accounts during the First -Year Savings Period, Second -Year Savings Period and Third -Year Savings Period, and the amount that it would have been billed on its Utility Accounts during the First -Year Savings Period, Second -Year Savings Period, and Third -Year Savings Period if there had been no change in its billing rate, calculation, method or procedure. The "First -Year Savings Period" begins on the date that the change in the billing rate, calculation, method or procedure is first reflected on City's utility bill, and ends one year thereafter; the Second -Year Savings Period begins upon the end of the First -Year Savings Period and ends one year thereafter; and the Third -Year Savings Period begins upon the end of the Second -Year Savings Period and ends one year thereafter. 2 uj 3814•... UCM will submit invoices periodically to CITY for payment based on the Future Savings as they accrue. The invoices will verify (a) that Future Savings have actually been realized by CITY, and (b) the amount of such Future Savings. Payment of UCM's invoices is due within 60 days of the date the invoices are mailed to CITY. 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 CITY, or (b) the result of City's utilization of a different utility supplier that provides lower cost utility service. UCM understands and agrees that CITY is not obligated to change its billing rate, calculation, method or procedure or obtain the Future Savings identified in the Findings Letter. Under no circumstances will CITY pay UCM unless CITY receives its refunds, credits, or Future Savings. If no refunds, credits, or Future Savings are recovered or realized by CITY, then UCM receives no compensation. i. UCM will work with utility providers, government authorities, and/or regulatory agencies to obtain refunds, credits, and Future Savings that it identifies. CITY may elect to utilize legal professionals or other persons to obtain any refund, credit, or Future Savings identified by UCM. Such an election will be at CITY's sole option and expense. CITY will remain obligated to pay UCM as set forth in this Agreement. ii. If not paid when due, amounts owing under this agreement will bear interest at a rate of 1.5% per month. iii Notwithstanding termination of this Agreement under Section 5 or Section 11, CITY will remain obligated to pay UCM, pursuant to this Section 3, for refunds, credits or Future Savings that were identified in a Findings Letter that was sent to CITY prior to such termination and are thereafter obtained by CITY. iv CITY is not obligated to pay UCM for any refund, credit or Future Savings received by CITY for which CITY had submitted to the utility provider a written claim prior to the date of UCM's Findings Letter. However, CITY is obligated to pay UCM pursuant to this paragraph whether or not CITY knew of the basis for the refund, credit or Future Savings prior to the date of UCM's Findings Letter, and whether or not City's receipt of the refund, credit or Future Savings was the result of steps taken by UCM. 4. NO WARRANTY; RELEASE OF LIABILITY. CITY acknowledges and agrees that UCM has made no express or implied representation or warranty that it will identify any refunds, credits, or Savings. Accordingly, CITY releases UCM from liability, and waives any claim, relating to any failure by UCM to identify or recover refunds, credits, or Savings to which CITY may be entitled. r 3 L 0 14 TERM. The term of this Agreement will be from May 6, 2008, to May 5, 2011. Unless otherwise determined by written amendment between the parties, this Agreement will terminate in the following instances: A. Completion of the work specified in this Agreement; B. Termination as stated in Section 11; C. The end of the term of this Agreement, i.e., May 5, 2011. 6. TIME FOR PERFORMANCE. UCM will not perform any work under this Agreement until: A. UCM furnishes proof of insurance as required under Section 17 of this Agreement; and B. CITY gives UCM a written, signed, Notice to Proceed. i. Should UCM begin work on any phase in advance of receiving written authorization to proceed, any such professional services are at UCM's own risk. 7. TAXPAYER IDENTIFICATION NUMBER. UCM will provide CITY with a Taxpayer Identification Number. 8. PERMITS AND LICENSES. UCM, 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. 9. PROJECT COORDINATION AND SUPERVISION. A. Michael Kerkorian will be assigned as Project Manager and will be responsible for job performance, negotiations, contractual matters, and coordination with CITY's Project Manager. B. Public Works Director or assigns a City's Project Manager and will be personally in charge of and personally supervise or perform the technical execution of the Project on a day -to -day basis on behalf of CITY and will maintain direct communication with UCM's Project Manager. 10. WAIVER. CITY's review or acceptance of, or payment for, work product prepared by UCM 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 UCM'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 4 ��� 38 1 4 • .J :I other term, covenant, or condition contained in this Agreement, whether of the same or different character. 11. TERMINATION. A. Except as otherwise provided, CITY may terminate this Agreement at any time with or without cause. Notice of termination will be in writing. B. UCM 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. 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. C. Should the Agreement be terminated pursuant to this Section, CITY may procure on its own terms services similar to those terminated. 12. OWNERSHIP OF DOCUMENTS. All documents, data, studies, drawings, maps, models, photographs and reports prepared by UCM under this Agreement are CITY's property; but notwithstanding the foregoing, all information that is contained within or is part of a computer database or spreadsheet (including all data, formulas, and programming code) is the exclusive property of UCM. UCM may retain copies of the documents, data, studies, drawings, maps, models, photographs and reports that are City's property, but will deliver all originals of such materials to CITY upon CITY's written notice. CITY agrees that use of UCM's completed work product, for purposes other than identified in this Agreement, or use of incomplete work product, is at CITY's own risk. 13. INDEMNIFICATION. A. Except as specified in Section 4, UCM indemnifies, will defend (at CITY's request and with counsel satisfactory to CITY), 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, including any such liability caused, in part, by CITY's passive negligence. Should CITY be named in any suit, or should any claim be against it by suit or otherwise, whether the same be groundless or not, arising out of this Agreement, or its performance, UCM will defend CITY (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. UCM expressly agrees that this release, waiver, and indemnity agreement is intended to be as broad and inclusive as is permitted by the law of the State of California and that if any portion is held invalid, it is agreed that the balance will; notwithstanding, continue in full legal force and effect. D. It is expressly understood and agreed that the foregoing provisions will survive termination of this Agreement. E. The requirements as to the types and limits of insurance coverage to be maintained by UCM as required by Section 17, 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 UCM pursuant to this Agreement, including, without limitation, to the provisions concerning indemnification. 14. ASSIGNABILITY. This Agreement is for UCM's professional services. UCM's attempts to assign the benefits or burdens of this Agreement without CITY's written approval are prohibited and will be null and void. 15. INDEPENDENT CONTRACTOR. CITY and UCM agree that UCM will act as an independent contractor and will have control of all work and the manner in which is it performed. UCM will be free to contract for similar service to be performed for other employers while under contract with CITY. UCM 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 UCM as to the details of doing the work or to exercise a measure of control over the work means that UCM will follow the direction of the CITY as to end results of the work only. 16. AUDIT OF RECORDS. UCM will maintain full and accurate records with respect to all services and matters covered under this Agreement. Except for information that is exclusively UCM's (as set forth in Paragraph 12), 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 data, documents, proceedings and activities. UCM will retain such financial and program service records for at least three (3) years after termination or final payment under this Agreement. on 3814•. •_t 17. 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: Type of Insurance Limits Commercial general liability: $1,000,000 Professional Liability $1,000,000 Business automobile liability $1,000,000 Workers compensation Statutory requirement B. Commercial general liability insurance will meet or exceed the requirements of ISO -CGL Form No. CG 00 01 11 85 or 88. 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 0106 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 "A:VII." 7 3814. , 0 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 18. USE OF CONSULTANTS. UCM must obtain CITY's prior written approval to use any consultants while performing any portion of this Agreement. Such consent must approve of the proposed consultant and the terms of compensation. 19. INCIDENTAL TASKS. UCM 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. 20. 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: CITY Director of Public Works City of El Segundo 350 Main Street El Segundo, CA 90245 Fax: (310) 640 -0489 UCM Michael Kerkorian 6475 N. Palm Avenue, Suite 105 Fresno, CA 93704 Fax: (559) 261 -9231 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. 21. SOLICITATION. UCM maintains and warrants that it has not employed nor retained any company or person, other than UCM's bona fide employee, to solicit or secure this Agreement. Further, UCM warrants that it has not paid nor has it agreed to pay any company or person, other than UCM'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 UCM breach or violate this warranty, CITY may rescind this Agreement without liability. 22. NO THIRD PARTY BENEFICIARY. This Agreement and every provision herein is for the exclusive benefit of UCM and CITY and not for the benefit of any other party. There will be no incidental or other beneficiaries of any of UCM's or CITY's obligations under this Agreement. 23. 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. 8 � 'Jj 38 1 4 • , .,. 24. ENTIRE AGREEMENT. This Agreement, and its Attachments, sets for 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. 25. EFFECT OF CONFLICT. In the event of any conflict, inconsistency, or incongruity between any provision of this Agreement, its attachments, the purchase order, or notice to proceed, the provisions of this Agreement will govern and control. 26. 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. 27. SEVERABILITY. 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. 28. 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. CITY's city manager, or designee, may execute any such amendment on behalf of CITY. 29. ACCEPTANCE OF FACSIMILE 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 facsimile transmission. Such facsimile signature will be treated in all respects as having the same effect as an original signature. 30. COVENANTS AND CONDITIONS. The parties agree that all of the provisions hereof will be construed as both covenants and conditions, the same as if the words importing such covenants and conditions had been used in each separate paragraph. 31. CAPTIONS. The captions of the paragraphs of this Agreement are for convenience of reference only and will not affect the interpretation of this Agreement. 32. FORCE MAJEURE. Should performance of this Agreement be prevented due to fire, flood, explosion, war, embargo, government action, civil or military authority, the natural elements, or other similar causes beyond the Parties' control, then the Agreement will immediately terminate without obligation of either party to the other. (, t) •-N L, , 4- 6 3814•...1 suggest that UCM is capable of performing the proposed contract and has a demonstrated capacity to deal fairly and effectively with and to satisfy a public agency. IN WITNESS WHEREOF the parties hereto have executed this contract the day and year first hereinabove written. r CITY OF EL SEGUNDO �171�(1*li r. Jack Wayt, Interim City Manager ATTEST: 0-" Cindy Mo �cn City Clerk APPROVED AS MARK D. HEN Utilit ost M n emerA, LLC Kerkorian PA 6475 N. Pahn Avenue, Suite 105 Fresno, CA 93704 Fax: (559)261 -9231 Taxpayer ID No. 94- 314 -2741 KdA H. erger, Assists City Attorney 10