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Item # 24
o`7, City of Santa Ana
20 Civic Center Plaza, Santa Ana, CA 92701
Staff Report
May 3, 2022
TOPIC: Agreement with Procure America, Inc.
AGENDA TITLE
Approve an Agreement with Procure America, Inc. for Streetlight Utility Cost Savings
Monitoring in an Amount not to Exceed $310,000 for up to a Five-year Term (Non -General
Fund)
RECOMMENDED ACTION
Authorize the City Manager to execute an agreement with Procure America, Inc. for
streetlight utility cost savings monitoring, for a five-year term beginning October 1, 2021
and expiring September 30, 2026, in an amount not to exceed $310,000, subject to non -
substantive changes approved by the City Manager and City Attorney.
DISCUSSION
On July 29, 2021 the City entered into an agreement with Procure America, Inc.
("consultant") to evaluate the City's Southern California Edison ("SCE") streetlight rates.
The evaluation consisted of reviewing the City's streetlight accounts for potential
discounts through a program with SCE, which are based on the age of the equipment,
usage profile, and specific tariff rate assignment on each streetlight. If, after the
evaluation, cost saving rates changes were identified by the consultant, a follow up
agreement between the consultant and the City would be required for the implementation
of the SCE rate changes, cost savings, and compensation.
Procure America, Inc. conducted a final review of the City of Santa Ana's SCE streetlight
rates to determine whether there were any potential rate changes that could lead to cost
savings. The consultant's review identified 3,502 streetlights that qualify for a discount
and will save the City of Santa Ana approximately $187,000 per year. As a follow-up to
the findings, the consultant coordinated with SCE to implement the cost saving changes
on behalf of the City, which became effective October 1, 2021. As per the initial
agreement, the City needs to enter into a subsequent agreement with Procure America
for their compensation and continued monitoring of their findings.
Agreement with Procure America, Inc.
May 3, 2022
Page 2
Staff recommends approving the agreement (Exhibit 1) with Procure America, Inc. for
compensation and monitoring of the SCE streetlight rate changes and cost savings.
ENVIRONMENTAL IMPACT
There is no environmental impact associated with the action.
FISCAL IMPACT
As stated above, Procure America, Inc. identified 3,502 streetlights that qualify for a
discount through a program with SCE based on the age of the equipment, usage profile
and specific tariff rate assignment on each streetlight that will save the City of Santa Ana
approximately $187,000 per year. As part of the agreement, the consultant shall monitor
and report the actual realized cost reductions achieved on behalf of the City. Procure
America, Inc.'s compensation for their services related to the utility tariff rate optimization
study, program implementation, monitoring and financing reporting is 30% of the actual
realized savings achieved. Their compensation will be valid for a period of 60 continuous
months (five years). Once the initial five year period has lapsed, the City will have no
further obligation to the consultant and will then benefit from the full discount savings
moving forward.
Even with the addition of the compensation for Procure America, Inc.'s services, the
reduced utility costs will provide the City savings on a monthly basis. Based on the current
rates, the consultant projects SCE charges will be reduced by $15,618.92 per month.
When factoring in the addition of the Procure America, Inc. compensation, the City could
expect to realize $10,933.24 in monthly cost savings as shown below:
Estimated Monthly Energy Cost Savings
$15,618.92
Estimated Compensation
$4,685.68
Net Monthly Savings initial 5 ears)
$10,933.24
At the conclusion of the compensation period (5 years), it is estimated that the annual
cost savings will increase to $15,618.92 per month, assuming tariff rate increases are
consistent with historic averages.
Cost savings will be credited to Public Works Street Light Maintenance Account No.
01117630-62000.
Funds are available for expenditure in Fiscal Year 2021-22 and will be budgeted in
subsequent fiscal years as shown below in the estimated spending plan:
Agreement with Procure America, Inc.
May 3, 2022
Page 3
Procure America, Inc.
Agreement Term (July 2, 2019, through July 1, 2022)
Fiscal
Accounting
Fund
Accounting Unit,
Year
Unit —
Description
Account Description
Amount
Account No.
2021-22
01117630-
Street Light
Utilities
$42,000
62000
Maintenance
2022-23
01117630-
Street Light
Utilities
$62,000
62000
Maintenance
2023-24
01117630-
Street Light
Utilities
$62,000
62000
Maintenance
2024-25
01117630-
Street Light
Utilities
$62,000
62000
Maintenance
2025-26
01117630-
Street Light
Utilities
$62,000
62000
Maintenance
2026-27
01117630-
Street Light
Utilities
$20,000
62000
Maintenance
Previously Approved Funding:
$310,000
EXHIBIT(S)
1. Agreement with Procure America
Submitted By: Nabil Saba, P.E., Executive Director — Public Works Agency
Approved By: Kristine Ridge, City Manager
EXHIBIT 1
AGREEMENT WITH PROCURE AMERICA FOR COST RECOVERY SERVICES
THIS AGREEMENT is made and entered into this , day of May, 2022, by and between Procure
America, Inc., a California corporation ("Consultant"), and the City of Santa Ana, a charter city and
municipal corporation organized and existing under the Constitution and laws of the State of California
(«City„).
RECITALS
A. The City desires to retain Consultant to provide consulting services consisting of monitoring the
City's cost recovery from Southern California Edison ("SCE") due to implementation of
Consultant's recommended cost recovery/rate changes resulting from Consultant's preliminary
review of City's street Iight rates and billing from SCE under Agreement No_ N-2021-164. The
review identified cost saving changes of approximately $187,427.04 per year.
B. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable
in its field and that any services performed by Consultant under this Agreement will be performed
in compliance with such standards as may reasonably be expected from a professional consulting
firm in the field.
C. The cost recovery percentage rate specified in this Agreement results from Cooperative Agreement
RCA-017-19010018 between Consultant and the County of Orange from which City has been
provided the benefit of the County's previously negotiated rate.
NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the
terms and conditions hereinafter set forth, the parties agree as follows:
11. SCOPE OF SERVICES
Consultant shall provide consulting services, during the term of this Agreement, consisting of
monitoring cost savings from SCE for City street light costs resulting from rate changes implemented as
a result of Consultant's preliminary review conducted under Agreement No. N-2021-164. Monitoring of
costs includes monthly review of City bills from SCE pertaining to streetlights and interaction with SCE
as necessary to implement and recover cost savings.
2. COMTENSATION
City will pay Consultant quarterly in arrears thirty (30%) percent of the actual monthly savings
(cost recovery) received from SCE regarding City street light electricity expenses. Actual monthly cost
recovery amount will be subject to verification by the City prior to payment. Compensation will include
time period starting October 1, 2021 to the date of this Agreement and continue during the term of this
Agreement. Compensation during the term of this Agreement shall not exceed three hundred and ten
thousand dollars and zero cents ($310,000.00).
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3. TERM
This Agreement shall have a term of five (5) years starting October 1, 2021 and ending September
30, 2026, unless terminated earlier in accordance with Section 14, below_
4. INDEPENDENT CONTRACTOR
Consultant shall, during the entire term of this Agreement, be construed to be an independent
contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to
create an employer -employee relationship, a joint venture relationship, or to allow the City to exercise
discretion or control over the professional manner in which Consultant performs the services which are
the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided
in a manner consistent with all applicable standards and regulations governing such services. Consultant
shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar
taxes relating to employees and shall be responsible for all applicable withholding taxes.
Prior to undertaking performance of work under this Agreement, Consultant shall maintain and
shall require its subcontractors, if any, to obtain and maintain insurance as described below:
a. Commercial General Liability Insurance. Consultant shall maintain commercial general
liability insurance naming the City, its officers, employees, agents, volunteers and
representatives as additional insured(s) and shall include, but not be limited to protection
against claims arising from bodily and personal injury, including death resulting therefrom
and damage to property, resulting from any act or occurrence arising out of Consultant's
operations in the performance of this Agreement, including, without limitation, acts
involving vehicles. The amounts of insurance shall be not less than the following: single
limit coverage applying to bodily and personal injury, including death resulting therefrom,
and property damage, in the total amount of $1,000,000 per occurrence, with $2,000,000
in the aggregate. Such insurance shall (a) name the City, its officers, employees, agents,
and representatives as additional insured(s); (b) be primary and not contributory with
respect to insurance or self-insurance programs maintained by the City; and (c) contain
standard separation of insureds provisions.
b. Business automobile liability insurance, or equivalent form, with a combined single limit
of not less than $1,000,000 per occurrence. Such insurance shall include coverage for
owned, hired and non -owned automobiles.
c. Worker's Compensation Insurance. In accordance with the provisions of Section 3700 of
the Labor Code, Consultant, if Consultant has any employees, is required to be insured
against liability for worker's compensation or to undertake self=insurance. Prior to
commencing the performance of the work under this Agreement, Consultant agrees to
obtain and maintain any employer's liability insurance with limits not less than $1,000,000
per accident.
d. If Consultant is or employs a Iicensed professional such as an architect or engineer:
Professional liability (errors and omissions) insurance, with a combined single limit of not
Iess than $1,000,000 per claim with $2,000,000 in the aggregate.
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e. If the Consultant, its agents, or subcontractors maintain broader coverage and/or higher
limits than the minimums shown above, City requires and shall be entitled to the broader
coverage and/or the higher limits maintained by the Consultant. Any available insurance
proceeds in excess of the specified minimum limits of insurance and coverage shall be
available to the City.
£ Other Insurance Provisions- The insurance policies are to contain, or be endorsed to contain,
the following provisions:
Additional Insured Status- The City, its officers, officials, employees,
and volunteers are to be covered as additional insureds on the CGL
policy with respect to liability arising out of work or operations
performed by or on behalf of the Consultant including materials, parts,
or equipment furnished in connection with such work or operations.
General Iiability coverage can be provided in the form of an
endorsement to the Consultant's insurance (at least as broad as ISO
Form CG 20 10 11 85 or if not available, through the addition of both
CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 if a later
edition is used).
2. Primary Coverage- For any claims related to this contract, the
Consultant's insurance coverage shall be primary coverage at least as
broad as ISO CG 20 0104 13 as respects the City, its officers, officials,
employees, and volunteers. Any insurance or self-insurance maintained
by the City, its officers, officials, employees, or volunteers shall be
excess of the Consultant's insurance and shall not contribute with it.
Notice of Cancellation- Each insurance policy required above shall
provide that coverage shall not be canceled, except with notice to the
City.
4. Waiver of Subrogation- The Consultant hereby grant to Grantee a
waiver of any right to subrogation which any insurer of said Consultant
may acquire against City by virtue of the payment of any loss under
such insurance. Consultant agrees to obtain any endorsement that may
be necessary to affect this waiver of subrogation, but this provision
applies regardless of whether or not the City has received a waiver of
subrogation endorsement from the insurer.
Self -Insured Retentions- Self -insured retentions must be declared to and
approved by the City. The City may require the Consultant to purchase
coverage with a lower retention or provide proof of ability to pay losses
and related investigations, claim administration, and defense expenses
within the retention. The policy language shall provide, or be endorsed
to provide, that the self -insured retention may be satisfied by either the
named insured or City.
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6. AcceptabiIity of Insurers- Insurance is to be placed with insurers
authorized to conduct business in the state with a current A.M. Best's
rating of no less than A: VII, unless otherwise acceptable to the City.
7. Claims Made Policies (applicable only to professional liability, see
below)- If any of the required policies provide claims -made coverage:
a. The Retroactive Date must be shown, and must be before the
date of the contract or the beginning of contract work.
b. Insurance must be maintained and evidence of insurance must
be provided for at least five (5) years after completion of the
contract of work.
c. If coverage is canceled or non renewed, and not replaced with
another claims -made policy form with a Retroactive Date prior
to the contract effective date, the Consultant must purchase
';extended reporting" coverage for a minimum of five (5) years
after completion of work.
8. Verification of Coverage- The Consultant shall furnish the City with
original Certificates of Insurance including all required amendatory
endorsements (or copies of the applicable policy language effecting
coverage required by this clause) and a copy of the Declarations and
Endorsement Page of the COL policy listing all policy endorsements to
Entity before services are performed pursuant to this Agreement.
However, failure to obtain the required documents prior to the work
beginning shall not waive the Consultant's obligation to provide them.
The City reserves the right to require complete, certified copies of all
required insurance policies, including endorsements required by these
specifications, at any time. Failure of the Consultant to provide the
required verification of coverage prior to the start of any services shall
be grounds for immediate termination of this Agreement.
9. Special Risks or Circumstances- City reserves the right to modify these
requirements, including limits, based on the nature of the risk, prior
experience, insurer, coverage, or other special circumstances.
6. INDEMNIFICATION
A_ Consultant agrees to defend, and shall indemnify and hold harmless the City, its officers,
agents, employees, consultants, special counsel, and representatives from liability: (1) for
personal injury, damages, just compensation, restitution, judicial or equitable relief arising
out of claims for personal injury, including death, and claims for property damage, which
may arise from the negligent operations of the Consultant, its subcontractors, agents,
employees, or other persons acting on its behalf which relates to the services described in
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section 1 of this Agreement; and (2) from any claim that personal injury, damages, just
compensation, restitution, judicial or equitable relief is due by reason of the terms of or
effects arising from this Agreement. This indemnity and hold harmless agreement applies
to all claims for damages, just compensation, restitution, judicial or equitable relief
suffered, or alleged to have been suffered, by reason of the events referred to in this
Section or by reason of the terms of, or effects, arising from this Agreement. The
Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of
the City, including fees and costs for special counsel to be selected by the City, regarding
any action by a third party challenging the validity of this Agreement, or asserting that
personal injury, damages, just compensation, restitution, judicial or equitable relief due to
personal or property rights arises by reason of the terms of, or effects arising from this
Agreement. City may make all reasonable decisions with respect to its representation in
any legal proceeding. Notwithstanding the foregoing, to the extent Consultant's services
are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the
extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or
relate to the negligence, recklessness, or willful misconduct of the Consultant.
B. Pursuant to paragraph 10 of the Orange County Cooperative Agreement (RCA-017-
19010018), City and Consultant agree to hold harmless the County of Orange from all
claims, demands, actions or causes of actions of every kind resulting directly or indirectly,
arising out of, or in any way connected with the use of Orange County Cooperative
Agreement (RCA-017-19010018).
7. INTELLECTUAL PROPERTY INDEMNIFICATION
Consultant shall defend and indemnify the City, its officers, agents, representatives, and employees
against any and all liability, including costs, for infringement of any United States' letters patent,
trademark, or copyright infringement, including costs, contained in the work product or documents
provided by Consultant to the City pursuant to this Agreement.
8. RECORDS
Consultant shall keep records and invoices in connection with the work to be performed under this
Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred
under this Agreement and any services, expenditures, and disbursements charged to the City for a
minimum period of three (3) years, or for any longer period required by law, from the date of final payment
to Consultant under this Agreement. All such records and invoices shall be clearly identifiable.
Consultant shall allow a representative of the City to examine, audit, and make transcripts or copies of
such records and any other documents created pursuant to this Agreement during regular business hours.
Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to this
Agreement for a period of three (3) years from the date of final payment to Consultant under this
Agreement.
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9. CONFIDENTIALITY
If Consultant receives from the City information which due to the nature of such information is reasonably
understood to be confidential and/or proprietary, Consultant agrees that it shall not use or disclose such
information except in the performance of this Agreement, and further agrees to exercise the same degree
of care it uses to protect its own information of like importance, but in no event less than reasonable care.
"Confidential Information" shall include all nonpublic information. Confidential information includes not
only written information, but also information transferred orally, visually, electronically, or by other
means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party
is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to
any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the
Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without
an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently
developed by the Consultant without reference to information disclosed by the City.
I.O. CONFLICT OF INTEREST CLAUSE
Consultant covenants that it presently has no interests and shall not have interests, direct or
indirect, which would conflict in any manner with performance of services specified under this
Agreement.
11. DISCRIMINATION
Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual
orientation, gender identity, gender expression, gender, medical conditions, genetic information, or
military and veteran status, age, national origin, ancestry, or disability, as defined and prohibited by
applicable Iaw, in the recruitment, selection, teaching, training, utilization, promotion, termination or other
employment related activities or any services provided under this Agreement. Consultant affirms that it is
an equal opportunity employer and shall comply with all applicable federal, state and Iocal laws and
regulations.
12. EXCLUSIVITY AND AMENDMENT
This Agreement represents the complete and exclusive statement between the City and Consultant,
and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict
between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail.
This Agreement may not be modified except by written instrument signed by the City and by an authorized
representative of Consultant. The parties agree that any terms or conditions of any purchase order or other
instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or
obligate Consultant or the City. Each party to this Agreement acknowledges that no representations,
inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting
on behalf of any party, which is not embodied herein.
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13. ASSIGNMENT
Inasmuch as this Agreement is intended to secure the specialized services of Consultant,
Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written
consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior
written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit
the City's ability to have any of the services, which are the subject to this Agreement performed by City
personnel or by other Consultants retained by City.
14. TERMINATION
This Agreement may be terminated by the City upon thirty (30) days written notice of termination.
In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for
all services performed by Consultant prior to receipt of such notice of termination, subject to the following
conditions:
a. As a condition of such payment, the Executive Director may require Consultant to deliver
to the City all work product(s) completed as of such date, and in such case such work
product shall be the property of the City unless prohibited by law, and Consultant consents
to the City's use thereof for such purposes, as the City deems appropriate.
b. Payment need not be made for work that fails to meet the standard of performance specified
in the Recitals of this Agreement.
1S. WAIVER
No waiver of breach, failure of any condition, or any right or remedy contained in or granted by
the provisions of this Agreement shall be effective unless it is in writing and signed by the party waiving
the breach, failure, right or remedy. No waiver of any breach, failure or right, or remedy shall be deemed
a waiver of any other breach, failure, right or remedy, whether or not similar, nor shall any waiver
constitute a continuing waiver unless the writing so specifies.
16. XMSIIICTION - VENUE
This Agreement has been executed and delivered in the State of California and the validity,
interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined
and governed by the laws of the State of California. Both parties further agree that Orange County,
California, shall be the venue for any action or proceeding that may be brought or arise out of, in
connection with or by reason of this Agreement.
17. 1PROFESSIONAL LICENSES
Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits,
approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by
the laws and regulations of the United States, the State of California, the City of Santa Ana and all other
governmental agencies. Consultant shall notify the City immediately and in writing of its inability to
obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be
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cause for termination of this Agreement.
1S. MISCELLANEOUS PROVISIONS
a. Each undersigned represents and warrants that its signature herein below has the power,
authority and right to bind their respective parties to each of the terms of this Agreement,
and shall indemnify City fully, including reasonable costs and attorney's fees, for any
injuries or damages to City in the event that such authority or power is not, in fact, held by
the signatory or is withdrawn.
b. This Agreement can be signed electronically and in counterparts, each counterpart
assembled into one document and the parties agree such document will be considered the
original Agreement for all purposes.
19. NOTICE
Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be
in writing and shall be deemed to be properly given if delivered in person or mailed by first class or
certified mail, postage prepaid, or sent by fax or other telegraphic communication in the manner provided
in this Section, to the following persons:
To City:
Clerk of the City Council
City of Santa Ana
20 Civic Center Plaza (M-30)
P.O. Box 1988
Santa Ana, CA 92702-1988
Fax: 714- 647-6956
With copy to:
Executive Director
Public Works Agency
City of Santa Ana
20 Civic Center Plaza
P.O. Box 1988
Santa Ana, California 92702
To Consultant:
Procure America, Inc.
31103 Rancho Viejo Road., #D2102
San Juan Capistrano, CA 92675
Attn: Fred Armendariz
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A party may change its address by giving notice in writing to the other party. Thereafter, any
communication shall be addressed and transmitted to the new address. If sent by mail, communication
shall be effective or deemed to have been given three (3) days after it has been deposited in the United
States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by
fax, communication shall be effective or deemed to have been given twenty --four (24) hours after the time
set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth
above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays
shall be excluded.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first
above written.
ATTEST:
Daisy Gomez
Clerk of the Council
APPROVED AS TO FORM[:
SONIA R. CARVALHO
City Attorney
By: f 0" rLa— N. M. I
Laura A. Rossini
Chief Assistant City Attorney
RECOMMENDED FOR APPROVAL:
Nabil Saba
Executive Director
Public Works Agency
CITY OF SANTA ANA
Kristine Ridge
City Manager
CONSULTANT:
�Z Z4,
Fred Armendariz
CEO
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