HomeMy WebLinkAboutEES CONSULTING, INC.-2008
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iNSU~ANCE ON FILE N-2008-086
WORK MAY PROCEED
UNTIL INSURANCE EXPIRES
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CLERK OF COUNCIL
DATE: 7-1&>-0'6 CONSULTANT AGREEMENT
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, '-I-, Fe: "el,' '\ THIS AGREEMENT, made and entered into this 3'd day of July, 2008 by and between
( 10, ,5 1 EES Consulting, Inc., a Washington 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 field of
climate change / energy efficiency consultation services.
B. Consultant represents that Consu]tant 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
Consultant shall provide those services necessary to develop an RFP for a Strategic
Energy Plan Study, as set forth in Exhibit A to this Agreement.
2. WARRANTIES
Consultant warrants and represents that it has the absolute right to enter into and perform
this agreement and will perform its obligations hereunder in accordance with standards and
practices prevailing in the industry. Consultant's contribution to the RFP, including documents
to be produced by Consultant hereunder, will not infringe or misappropriate the proprietary or
personal rights of any third person or party.
3. COMPENSATION
a. City agrees to pay, and Consultant agrees to accept as total payment for its services,
the rates and charges identified in Exhibit A. The total sum to be expended under this
Agreement shall not exceed $] ],040.00 during the term of this Agreement.
b. Payment by City shall be made within thirty (30) days following receipt of proper
invoice evidencing work performed, subject to City accounting procedures. Payment need not
be made for work which fails to meet the standards of performance set forth in the Recitals
which may reasonably be expected by City.
4. TERM
This Agreement shall commence on the date first written above and terminate on
December 31, 2008, unless terminated earlier in accordance with Section 12, below. The term of
this Agreement may be extended upon a writing executed by the Executive Director of Public
Works and the City Attorney.
5. 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 ofthis 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.
6. 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. Due to the nature of the services provided, commercial general liability insurance is
not required.
b. Worker's Compensation Insurance. In accordance with the provisions of Section
3300 ofthe 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.
7. INDEMNIFICATION
Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents,
employees, consultants, special counsel, and representatives from liability: (I) 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 I of this Agreement.
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8. CONFIDENTIALITY
[fConsultant 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 ofthe 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 oflaw; or (e) is independently developed by the Consultant without
reference to information disclosed by the City.
9. 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.
10. 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
telefacsimile (714) 647-6956
With courtesy copies to:
Executive Director of Public Works
City of Santa Ana
20 Civic Center Plaza (M-21)
P.O. Box 1988
Santa Ana, California 92702
telefacsimile (714) 647-5622
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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: EES Consulting, Inc.
Gary Saleba
570 Kirkland Way, Suite 200
Kirkland, Washington 98033
Telefacsimile 429-889-2725
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.
11. 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 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.
12. 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.
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13. 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.
14. 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.
15. JURISDICTION - 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.
16. 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 ofthe 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 cause for termination of this Agreement.
17. 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.
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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.
1)
CITY OF SANTA ANA
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DAVIDN. REAM
City Manager
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PATRICIA E. HEALY
Clerk of the Council
APPROVED AS TO FORM:
JOSEPH W. FLETCHER
City Attorney
By:(.w"M)'~
LaUra Sheedy
Assistant City Attorney
EES CONSULTING, INC.
RECOMME
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GARY SIA.LEBA
President
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EXHIBIT A
SCOPE OF SERVICES
DEVELOP CLIMATE CHANGE/ENERGY EFFICIENCY RFP
Introduction
The City of Santa Ana (City) is interested in developing a comprehensive Climate
Change/Energy Efficiency Study (Study). The first step in this study is to develop a detailed
Request for Proposal (RFP) to assist in selecting the most qualified vendor to prepare this study.
EES Consulting, Inc. (EESC) is a registered engineering and management consulting firm
specializing in today's natural resource- and energy-related issues. We have undertaken
numerous studies related to climate change and energy efficiency, and will help the
City to develop the necessary RFP. Below is a brief proposal for EESC to assist the City in this
regard.
Proposed Scope of Work
EESC will assist the City in developing a detailed RFP for the Study. We will begin by drafting
a basic framework for the RFP. This basic framework will be crafted around other RFPs of this
nature and customized based upon our experience with similar projects. This draft framework
will be reviewed and critiqued by the City.
Next, detailed discussions will be undertaken with key City staff to identify specific areas within
the City's sphere of influence where opportunities exist. These opportunities will be both
general in nature and also specific to the City.
Given this research and dialogue with the City staff, EESC will take the draft RFP, update it for
City-specific issues and finalize the draft RFP for City review and approval. EESC will also
develop a preliminary mailing list for the RFP, and a draft notice of the RFP for publication in
trade journals and the appropriate newspapers.
Proposed Schedule and Budget
Regarding schedule, we anticipate the City staff meetings and subsequent development of the
RFP can be completed in 3-4 weeks. This schedule can be shortened depending on City staff
available.
EESC bills its clients on a time and materials basis. Our standard billing rates
are:
President............................................................................................. .$200
Managing Director ......................... ............... ........................................ I 90
Manager................................................................................................ I 85
Senior Project Manager......................................................................... I 75
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PROPOSAL
Page 2
Project Manager...................... ......... .......................... .......................... .160
Senior Analyst/Engineer .......................................................................150
Analyst........................................................ ..........................................140
Administrative Assistant..................... ..................................................120
In addition to this project's labor costs, EESC bills for all project-related out-of-pocket expenses
at their cost to EESC.
Based upon this proposed scope of work and hourly rates, we estimate a total budget to include
out-of-pocket expenses for this study to be approximately $9,200.
Qualifications ofEES Consulting
EES Consulting is a multidisciplinary management consulting and registered professional
engineering firm that provides a broad array of services to clients involved in electric, water,
natural gas, wastewater, telecommunications, and other energy and natural resource related
businesses. EES Consulting has assisted clients in meeting the challenges in evolving
competitive, regulatory and technical environments. Our broad base of clients includes public
and private utilities, regulators, trade associations and large end users located throughout North
America. EES Consulting has a proven track record of success in arenas where the results of a
particular evaluation or analysis may have far reaching effects on the viability of an organization
or the local community.
We have offices in the metropolitan areas of Kirkland and Bellingham, WA; Portland, OR; and
Indio, CA. Our professional staff members have backgrounds in the areas of economics, finance,
financial analysis, engineering, public administration, environmental science, operations research
and corporate management.
All projects are staffed with a principal and senior manager who have several years of experience
in the field of practice and who lead a team of qualified specialists from all relevant disciplines.
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Crenl# 331763
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ACORDm CERTIFICATE OF LIABILITY INSURANCE I OATE (MMIDOIYYYVj
07/16/08
PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
Kibble & Prentice, a USI Co. 1\J-:2-DV'6 ~cZlo ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR
P.O. Box 370 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
Seattle, WA 98111
206 441-6300 INSURERS AFFORDING COVERAGE NAIC#
INSURED INSURER A St Paul Guardian Insurance Co 24775
EES Consulting, Inc. INSURER B:
570 Kirkland Way, Suite 200 INSURER C
Kirkland, WA 98033 INSURER 0:
INSURER E.
THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING
ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR
MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS. EXCLUSIONS A'JD CONDITIONS OF SUCH
POLICIES AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
I~ ~D' TYPE OF INSURANCE POLICY NUMBER P~A~~Y i!..~~8~\E Pg~$J {~X':I~~N LIMITS
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~NERAL LIABILITY EACH OCCURRENCE $
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EMPLOYERS' LIABILITY
ANY PROPRIETOR/PARTNER/EXECUTIVE E.L. EACH ACCIDENT .1,000,000
OFFICER/MEMBER EXCLUDED? E.L. DISEASE - EA EMPLOYEE .1,000,000
If yes, describe under
SPECIAL PROVISIONS below EL DISEASE - POLICY LIMIT .1,000,000
OTHER
DESCRIPTION OF OPERATIONS I LOCATIONS) VEHICLES J EXCLUSIONS ADDED BY ENDORSEMENT J SPECIAL PROVISIONS
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION
City of Santa Ana DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL ---AS..... DAYS WRITTEN
20 Civic Center Plaza NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL
PO Box 1988 IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR
Santa Ana, CA 92702 REPRESENTATIVES,
A~~O:IZED REPRESEN~ATIVE ~
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ACORD 25 (2001/08) 1 of 2
#S2514345/M2514342
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@ ACORD CORPORATION 1988
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