HomeMy WebLinkAboutSIEMENS BUILDING TECHNOLOGIES 5 - 2008INSURANCE ON FILE
WORK MAY PROCEED
UNTIL INSURANCE EXPIRES
/o .~ l -U~
CLERK OF COUNCIL
DATE: AUK 1 Z 21308
CONSULTANT AGREEMENT
A-2008-158
THIS AGREEMENT, made and entered into this 2°d day of June 2008 by and between
Siemens Building Technologies, Inc., California Corporation (hereinafter "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 (hereinafter "City").
RECITALS
A. The City desires to retain a consultant having special skill and knowledge in the energy
conservation field including providing professional design, construction and
implementation of energy conservation projects.
B. Consultant represents that Consultant is able and willing to provide such services to the
City.
C. 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.
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:
1. SCOPE OF SERVICES
1. ,Consultant shall perform a Comprehensive Energy Analysis (CEA) audit and
preliminary engineering assessments of City facilities. City shall assist Consultant's engineering
staff with the audit by providing historical energy records, full access to building equipment,
accurate occupancy levels, building operating schedules and any other reasonable information
necessary to conduct a professional energy audit and final project development.
Consultant will provide a CEA and final proposal of suggested energy conservation
measures within sixty (60) days of commencement of the energy audit. The Proposal shall
include information regarding improvements, both capital and operating, which the City may
utilize in order to conserve energy, reduce energy use and lower costs of operating City facilities.
The audit will include assessment of current conditions and prediction of future utility use after
conservation measures have been implemented. A thorough Cost and Savings analysis will be
provided for each suggested improvement implementation. Consultant will review "Rebate" and
"Incentive" programs offered by local utilities which may be available and beneficial to the City
if suggested improvements are implemented.
2. COMPENSATION
Should the City elect not to purchase the retrofit program, the City agrees to pay, and
Consultant agrees to accept as total payment for its services, a total sum not exceed $50,000. If
City elects to purchase a retrofit program, services pursuant to this Agreement shall not be
charged by Consultant.
3. TERM
This Agreement shall commence on the date first written above and terminate on
September 30, 2009 unless terminated earlier in accordance with Section 13, below. The term of
this Agreement may be extended upon a writing executed by the Executive Director of the Public
Works Agency and the City Attorney.
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 anemployer-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.
5. INSURANCE
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, agents, volunteers, and employees as
additional insureds) 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. Consultant shall supply City with a fully executed additional insured endorsement
containing clauses stating Consultant's insurance is primary and not-contributory with other
insurance available to the City and standard separation of insureds provisions.
2
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 3300
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 licensed professional such as an architect or engineer:
Professional liability (errors and omissions) insurance, with a combined single limit of not less
than $1,000,000 per claim.
e. The following requirements apply to the insurance to be provided by Consultant
pursuant to this section:
(i) Consultant shall maintain all insurance required above in full force and
effect for the entire period covered by this Agreement.
(ii) Certificates of insurance shall be furnished to the City upon execution of
this Agreement and shall be approved in form by the City Attorney.
(iii) Certificates and policies shall state that the policies shall not be canceled
or reduced in coverage or changed in any other material aspect without
thirty (30) days prior written notice to the City.
f. If Consultant fails or refuses to produce or maintain the insurance required by this
section or fails or refuses to furnish the City with required proof that insurance has been procured
and is in force and paid for, the City shall have the right, at the City's election, to forthwith
terminate this Agreement. Such termination shall not effect Consultant's right to be paid for its
time and materials expended prior to notification of termination. Consultant waives the right to
receive compensation and. agrees to indemnify the City for any work performed prior to approval
of insurance by the City.
6. INDEMNIFICATION
Consultant agrees to 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 health, and claims for property damage, which may arise from the
direct or indirect operations of the Consultant or its contractors, subcontractors, agents,
employees, or other persons acting on their behalf which relates to the services described in
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 asserting that personal
injury, damages, just compensation, restitution, judicial or equitable relief due to personal or
property rights arises by reason of effects arising from this Agreement. City may make all
reasonable decisions with respect to its representation in any legal proceeding.
7. 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.
8. 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.
9. 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 telefacsimile 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
(714) 647-6956 (telefacsimile)
With courtesy copies to:
Public Works Agency
City of Santa Ana
20 Civic Center Plaza (M-21)
Santa Ana, California 92702
telefacsimile (714) 647-5622
and
City Attorney
City of Santa Ana
20 Civic Center Plaza (M-29)
P.O. Box 1988
Santa Ana, California 92702
telefacsimile (714) 647-6515
To Consultant: Terrence Mack
Siemens Building Technologies, Inc.
10775 Business Center Drive
Cypress, California 90630
telefacsimileax: (714) 252-1327
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 telefacsimile, 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.
10. 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, that terms and conditions hereof, shall not bind or obligate Consultant nor
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 are not embodied herein.
11. 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.
12. 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 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 which fails to meet the standard of performance
specified in the Recitals of this Agreement.
13. DISCRIMINATION
Consultant shall not discriminate because of race, color, creed, religion, sex, marital
status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited
by applicable law, in the recruitment, selection, training, utilization, promotion, termination or
other employment related activities. Consultant affirms that it is an equal opportunity employer
and shall comply with all applicable federal, state and local laws and regulations.
14. JURISDICTION -VENUE
This Agreement and all questions relating to its validity, interpretation, performance, and
enforcement shall be government and construed in accordance with the laws of the State of
California. 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.
15. PROFESSIONAL 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 her inability to obtain or maintain such permits, licenses,
approvals, waivers, and exemptions. Said inability shall be cause for termination of this
Agreement.
6
16. MISCELLANEOUS PROVISIONS
a. Each undersigned represents and warrants that its signature hereinbelow 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. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set
forth in the body of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year
first above written.
ATTEST:
PATRICIA E. Hi/AL
Clerk of the Council
APPROVED AS TO FORM:
JOSEPH W.FLETCHER
City Attorney
By:
La a Sheedy
Assistant City ttorney
RECO ENDED FO
JA ES G. S
ecutive Director
ublic Works Agency
CITY OF SANTA ANA
• w
DAVID N. RE
City Manager
SIEMENS BUILDING
TECHNOLOGIES INC.
AL:
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(Title)
Tax ID# ~~o( 71r,,~ 'r ~~n
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RD ................_ ..........
DATE (YM/00A'Y)
.... A .. .. 02120/08
PaoDUCER THIS CERTIFICATE IS ISSUED A5 A MATTER OF INFORMATION
MARSH USA INC.
44WHIPPAN~ ROAD ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
HOLDER. THIS CERTIFICATE DOES NOT AINEND, EXTEND OR
I P.O. BOX 1966 /4-200$-158 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW
MORRISTOVNN
NJ 07962-1966 .
~
, COMPANIES AFFDRDINO COVERAGE
COMPANY
100129~7BA-07I08 609 0704 XXXX A GERLING AMERICA INSURANCE COMPANY
NA1RE0
COMPANY
SIEMENS BUILDING TECHNOLOGIES, INC.IA-2003-022 8 LIBERTY MUTUAL FIRE INSURANCE COMPANY
1000 DEERFIELD PARKWAY `
BUFFALO GROVE, IL 60088.4513 'A-2003-022-01 ~ caMPANv
C LIBERTY INSURANCE CORPORATION
~A-2006-116
. '
... . _. COMPANY
~A-2006-330 o
THIS IS TO CERTIFY THAT 1HE PCIICIES CF INSl1RANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD
INDICATED, NOTVNTHSTANDING ANY RECUIREMENT, TERM OR CfONDITiON OF ANY CONTRACT OR OTHER DOCUMENT MATH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL 7}IE TERMS
,
EXCLU9ONS AND CONDITIONS OF SUCH POUpES. AGGREGATE LIWITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
LT~R ".'PE OF NSURANCE PQILYNUMBER POLICY EFFECTIVE POLICY EXPIRATION LN1T9
DATE(MMIDDIYI) DATE(YYAIDIYY)
A GE NERAL Lh4BIlITY 7200509 GLP 10J01f07 10101/08 000
000
a 10
,
,
GENERAL AGGREGATE
X COMMERCIAL GENERAL LIABILITY PRODUCTS-COMPlOP AGG S INCL
CLNMSMAOE OOCCUR .
000
000
PER90NALdADVINJURV S 1
,
,
OWNER'SdCONTRACTLR'SPROi EACH OCCURRENCE rs 1,000,000
s 1
000
000
FIRE DAM AGE
A
,
,
(
nyorroflre)
MEDEXP M me sram s 100,000
B AU rowo6lLE LIABNJTY AS2~31-004334-217 10/0U07 10101108
I COMBINED SINGLE LIMIT s 2,000,D00
X ,wv ALro
X ALLONMEOAU703 BODILYINJURV s N/A
SCHEDULED AL'T03 (PerPasQ+1
X HIR~DAUTOS
BODILYIN.LRY s NIA
X NON-W4NED N1T09 (PS ~'deAh
PROPERTY DAMAGE S NIA
GAaaaE Luu11uTY
I AUTOONLV-EAACQDENT S
ANV ALTO OTHER THIYJ AUTO ONLY' ...... ~ ..... .. .. .... .:......
EACH ADODENT $
AGGREGATE
EXCEfiLUIBIITY
EACH OCCURRENCE S
UMBREiLAFORM AGGREGATE S
OTHER THAN UMBRELLAFCRM S
C
I 1MORKE iC0 P N ON
EMPLOYERf'LIAHILITY WA7~3D-004334-017 AOS
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10/01/07
10101/06 3TATU- H "'
X
TORYLMITS ER
C WC7~31-004334-027(OR,WI) 10/01/07 10/01/08 EACHACaDENT S 1,000,000
C FARTIVE~S~C1~177VE X INCL EW7~3N-004334-047(OH) 1W01/07 10101/08 DISEA3=-POLIGYUMIT S 1,000,000
OFFICERS ARE: EXCL S9DOKLIMiT/Sfi00KSIR asEAg•EACHEMPLOYEE S 1,000,000
i
DE9CRVT10N OF OPERATIONfA.OCATIOMJNEN10LEi1lPECLrt.ITEMf
RE: 609- CITY OF SANTA ANA ENERGY AUDIT ,~ ~.
- ~ ---
SEE ATTACHED
........
iIIOULD ANY OF THE ABOVE DEfCRB1ED POLICIEB BE CANCELLED BEFORE THE
CI'jY OF SANTA ANA fXPRA710N DATE THEREOF, THE INAIRANCE COMPANY WLLL d~ MAL
30
AT1fN: CLERKOF THE CITY COUNCIL DAYS WRITTEN NOTICE TO THE CERTFICATE HOLDER NAKED TO THE LEFT,
20 CIVIC CENTER PLAZA (M~0) ~uer~ec~axx~orleyeoc
P.O. BOX 1988
SANTA ANA, CA 92702-1988 Xd0( iW~iWrEX~icXJlfdWi3F,~0C1l~(XaQ4+~>fiAf~fii~(
AY 7E aRlm REME7tr TATNE L_ _
BY: Mary Radaazawaki
MMC
iROOUCER
MARSH USA, INC.
44WHIPPANY ROA^
P.O. BOX 1966
MORRISTOWN, NJ 07982-1966
100129~7BA-07108 609
0704 XXXX
kli1RE~
SIEMENS BUILDING TECHNOLOGIES, INC.
1000 DEERFIELD PARKWAY
BUFFALO GROVE, IL 60089513
COMPMIY
E
COMPANY
F
Od~IPANY
O
OOdIPANY
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RE: 609-CITY OF SANTA ANA ENERGY AUDIT
- oa1E armcm}
02/20/08
COMPANIES ARFORCINO COVERAGE
THE CITY OF SANTA ANA, 20 CIMC CENTER PLAZA, SANTA ANA, CAllFORNIA92701; ITS OFFICERS, EMPLOYEES, AGENTS, VOLUNTEERS AND
REPRESENTATIVES ARE INCLUDED AS ADDITIONAL INSURED UNDER THE ABOVE REFERENCED GENERAL LIABILITY AND AUTOMOBILE
LIABILITY INSURANCE POLICIES AND THE COVERAGE AFFORDED THE ADDITIONAL INSURED UNDER THESE POLICIES SHALL BE PRIMARY AND
NONCONTRIBUTORY INSURANCE TO THE EXTENT THAT A CLAIM ARISES FROM THE NEGLIGENCE OF SIEMENS BUILDING TECHNOLOGIES
INC. 0 R ITS SUBCONTRACTORS 1MTH RESPECT TO ALL OPERATIONS OF THE INSURED BUT ONLY WITH RESPECT TO ALL WORK PERFORMED
BY AND ON BEHALF OF THE NAMED INSURED, SIEMENS BUILDING TECHNOLOGIES, INC. FOR CERTIFICATE HOLDER UNDER CONTRACT.
ATTN: CLERKOF THE CITY COUNCIL
20 CIVIC CENTER PLAZA (M~0)
P.O. BQX 1988
SANTA ANA, CA 92702-1988
'L/'LU/'LUUt3 5:5y 1~M 1~A(:r~ ;3/UU4 :astern '1'im6LOrie
Yurr UiAlnc
Mary Radeszeuski
MMC
L/ LU/ LVUO .7 :.7~ Y17 Ylil7L, Y/ VV~ l:aa t.ci tl 11IIIG LVIIG
POLICY NUMBER: 7200509 GLP COMIIAERCIAL QENERAL I..IABILRY
cG za 10 0~ a4
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ R CAREFULLY.
ADDITIONAL INSURED -OWNERS, LESSEES OR
CONTRACTORS -SCHEDULED PERSON OR
ORGANIZATION
This endorsement modifies insurance provided under the fdlowing:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
SCHEDULE
Nams Of Additional Insured Persons)
Or ani=atlon s :
Loe~tion s Of Coverod lions
ANY PERSON OR ORGANQATION REQUIRED BY ALL LOCATIONS WHERE THE INSURED IS
WRITTEN CONTRACT PERFORMING ONGOING OPERATIONS FOR
AN ADDITIONAL INSURED AS REQUIRED BY
WRITTEN CONTRACT
Infomnatlon uired to corrr lets this Schedule if not shown above will be shown in the Dedaratlons.
A Section II -Who Is An Insured is amended to
include as an additional insured the person(s) ~or
organ¢ation(s) shown in the Schedule, but only
with respect to liability for'bodily Injury, "property
damage" or "personal and advertising injury'
caua~ed, in whole or in part, by.
7. Your acts or omissions; or
2. The acts or omissbns of ttwse acting on your
behalf;
in the penForrriance of your ongoing operations for
the additional insured{s) at the location(s) desig-
nated above.
B. with respect to the Insuuance afforded to these
additional insureds, the fdiovring additional exdu-
sions aPPIY .
This insurance does not apply to "bodUy Injury' or
"property damage' occurring after:
1. All work, indu~ding materials, parts or equ~p-
ment tumished In connection with such work,
on the project (other than service, maintenance
or repairs) to be performed by or on behalf of
the addttkutal insur+ed(s) at the location of the
covered operations has been completied; or
2. That portion vf' "your work" aut of which the
injury or damage arises has bean put b its In-
tended use by arty person or ar~n¢ation other
than another contractor or subconiracbcr en-
gaged in performing operations for a principal
as a part of the same project