HomeMy WebLinkAboutELEN Consulting Inc; 2015-03-23; PEM1190PEM 1190
AGREEMENT FOR ENERGY EFFICIENCY APPLICATION DEVELOPMENT SERVICES
ELEN CONSULTING, INC.
^^THIS AGREEMENT is made and entered into as of the fL^ ~ day of
/y. A 2015, by and between the CITY OF CARLSBAD, a municipal
cdrporafion, ("City"), and ELEN CONSULTING, INC., a California corporafion, ("Contractor").
RECITALS
A. City requires the professional services of a mechanical engineer that is
experienced in energy efficiency projects and applicafion development.
B. Contractor has the necessary experience in providing professional sen/ices and
advice related to energy efficiency project and applicafion development.
C. Contractor has submitted a proposal to City and has affirmed its willingness and
ability to perform such work.
NOW, THEREFORE, in considerafion of these recitals and the mutual covenants
contained herein. City and Contractor agree as follows:
1. SCOPE OF WORK
City retains Contractor to perform, and Contractor agrees to render, those sen/ices (the
"Services") that are defined in attached Exhibit "A", which is incorporated by this reference in
accordance with this Agreement's terms and conditions.
2. STANDARD OF PERFORMANCE
While performing the Services, Contractor will exercise the reasonable professional care and skill
customarily exercised by reputable members of Contractor's profession pracficing in the
Metropolitan Southern California Area, and will use reasonable diligence and best judgment while
exercising its professional skill and expertise.
3. TERM
The term of this Agreement will be effective for a period of one (1) year from the date first above
written.
4. TIME IS OF THE ESSENCE
Time is of the essence for each and every provision of this Agreement.
5. COMPENSATION
The total fee payable for the Services to be performed during the inifial Agreement term will be
twenty three thousand dollars ($23,000). No other compensafion for the Sen/ices will be allowed
except for items covered by subsequent amendments to this Agreement. The City reserves the
right to withhold a ten percent (10%) retenfion until City has accepted the work and/or Services
specified in Exhibit "A".
Incremental payments, ifapplicable, should be made as oufiined in attached Exhibit "A".
6. STATUS OF CONTRACTOR
Contractor will perform the Sen/ices in Contractor's own way as an independent contractor and
in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be
under control of City only as to the result to be accomplished, but will consult with City as
necessary. The persons used by Contractor to provide sen/ices under this Agreement will not be
considered employees of City for any purposes.
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The payment made to Contractor pursuant to the Agreement will be the full and complete
compensafion to which Contractor is enfitled. City will not make any federal or state tax
withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be
required to pay any workers' compensation insurance or unemployment contributions on behalf
of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty
(30) days for any tax, refirement contribution, social security, overtime payment, unemployment
payment or workers' compensation payment which City may be required to make on behalf of
Contractor or any agent, employee, or subcontractor of Contractor for work done under this
Agreement. At the City's elecfion. City may deduct the indemnification amount from any balance
owing to Contractor.
7. SUBCONTRACTING
Contractor will not subcontract any portion of the Sen/ices without prior written approval of City.
If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the
acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly
employed by the subcontractor, as Contractor is for the acts and omissions of persons directly
employed by Contractor. Nothing contained in this Agreement will create any contractual
relafionship between any subcontractor of Contractor and City. Contractor will be responsible for
payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of
a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically
noted to the contrary in the subcontract and approved in wrifing by City.
8. OTHER CONTRACTORS
The City reserves the right to employ other Contractors in connecfion with the Services.
9. INDEMNIFICATION
Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees
and volunteers from and against all claims, damages, losses and expenses including attorneys
fees arising out of the performance of the work described herein caused by any negligence,
recklessness, or willful misconduct of the Contractor, any subcontractor, anyone directly or
indirectly employed by any of them or anyone for whose acts any of them may be liable.
The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or
makes to or on behalf of an injured employee under the City's self-administered workers'
compensafion is included as a loss, expense or cost for the purposes of this secfion, and that this
section will survive the expiration or eariy termination of this Agreement.
10. INSURANCE
Contractor will obtain and maintain for the duration of the Agreement and any and all
amendments, insurance against claims for injuries to persons or damage to property which may
arise out of or in connection with performance of the services by Contractor or Contractor's
agents, representatives, employees or subcontractors. The insurance will be obtained from an
insurance carrier admitted and authorized to do business in the State of California. The insurance
carrier is required to have a current Best's Key Rafing of not less than "A-:VM". OR with a surplus
line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rafing
in the latest Best's Key Rafing Guide of at least "A:X".
10.1 Coverages and Limits.
Contractor will maintain the types of coverages and minimum limits indicated below, unless Risk
Manager or City Manager approves a lower amount. These minimum amounts of coverage will
not consfitute any limitations or cap on Contractor's indemnificafion obligafions under this
Agreement. City, its officers, agents and employees make no representation that the limits of the
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insurance specified to be carried by Contractor pursuant to this Agreement are adequate to
protect Contractor. If Contractor believes that any required insurance coverage is inadequate.
Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at
Contractor's sole expense.
10.1.1 Commercial General Liabilitv Insurance. $1.000,000 combined single-limit
per occurrence for bodily injury, personal injury and property damage. If the submitted policies
contain aggregate limits, general aggregate limits will apply separately to the work under this
Agreement or the general aggregate will be twice the required per occurrence limit.
10.1.2 Automobile Liability, (if the use of an automobile is involved for Contractor's
work for City). $1,000,000 combined single-limit per accident for bodily injury and property
damage.
10.1.3 Workers' Compensation and Emplover's Liability. Workers' Compensafion
limits as required by the California Labor Code. Workers' Compensation will not be required if
Contractor has no employees and provides, to City's safisfacfion, a declaration stafing this.
10.1.4 Professional Liability. Errors and omissions liability appropriate to
Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be
maintained for a period of five years following the date of complefion of the work.
J)'^' I I If box is checked. Professional Liability
City's Initials Contractor's Initials Insurance requirement is waived.
10.2. Additional Provisions. Contractor will ensure that the policies of insurance required under
this Agreement contain, or are endorsed to contain, the following provisions:
10.2.1 The City will be named as an addifional insured on Commercial General
Liability which shall provide primary coverage to the City.
10.2.2 Contractor will obtain occurrence coverage, excluding Professional
Liability, which will be written as claims-made coverage.
10.2.3 This insurance will be in force during the life of the Agreement and any
extensions of it and will not be canceled without thirty (30) days prior written notice to City sent
by certified mail pursuant to the Nofice provisions of this Agreement.
10.3 Providinq Certificates of Insurance and Endorsements. Prior to City's execution of this
Agreement, Contractor will furnish certificates of insurance and endorsements to City.
10.4 Failure to Maintain Coveraqe. If Contractor fails to maintain any of these insurance
coverages, then City will have the option to declare Contractor in breach, or may purchase
replacement insurance or pay the premiums that are due on exisfing policies in orderto maintain
the required coverages. Contractor is responsible for any payments made by City to obtain or
maintain insurance and City may collect these payments from Contractor or deduct the amount
paid from any sums due Contractor under this Agreement.
10.5 Submission of Insurance Policies. City reserves the right to require, at anytime, complete
and certified copies of any or all required insurance policies and endorsements.
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11. BUSINESS LICENSE
Contractor will obtain and maintain a City of Carlsbad Business License for the term of the
Agreement, as may be amended from fime-to-time.
12. ACCOUNTING RECORDS
Contractor will maintain complete and accurate records with respect to costs incurred under this
Agreement. All records will be clearly identifiable. Contractor will allow a representative of City
during normal business hours to examine, audit, and make transcripts or copies of records and
any other documents created pursuant to this Agreement. Contractor will allow inspection of all
work, data, documents, proceedings, and acfivifies related to the Agreement for a period of three
(3) years from the date of final payment under this Agreement.
13. OWNERSHIP OF DOCUMENTS
All work product produced by Contractor or its agents, employees, and subcontractors pursuant
to this Agreement is the property of City. In the event this Agreement is terminated, all work
product produced by Contractor or its agents, employees and subcontractors pursuant to this
Agreement will be delivered at once to City. Contractor will have the right to make one (1) copy
of the work product for Contractor's records.
14. COPYRIGHTS
Contractor agrees that all copyrights that arise from the sen/ices will be vested in City and
Contractor relinquishes all claims to the copyrights in favor of City.
15. NOTICES
The name of the persons who are authorized to give written nofices or to receive written nofice
on behalf of City and on behalf of Contractor under this Agreement.
For City For Contractor
Name Jesse Zunke Name Dmitriy Nathanson
Title PW Supervisor Tifie Principal
Department Property Address 9150 Chesapeake Dr. Ste. 220
City of Carlsbad San Diego, CA 92123
Address 405 Oak Ave. Phone No. 619-550-1085
Carisbad Ca 92008 Email dnathanson@elenconsulfing.com
Phone No. 760-434-2992
Each party will nofify the other immediately of any changes of address that would require any
nofice or delivery to be directed to another address.
16. CONFLICT OF INTEREST
Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the
requirements of the City of Carisbad Conflict of Interest Code. The Contractor shall report
investments or interests in all four categories.
17. GENERAL COMPLIANCE WITH LAWS
Contractor will keep fully informed of federal, state and local laws and ordinances and regulations
which in any manner affect those employed by Contractor, or in any way affect the performance
of the Sen/ices by Contractor. Contractor will at all fimes obsen/e and comply with these laws.
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ordinances, and regulations and will be responsible for the compliance of Contractor's services
with all applicable laws, ordinances and regulafions.
Contractor will be aware of the requirements of the Immigrafion Reform and Control Act of 1986
and will comply with those requirements, including, but not limited to, verifying the eligibility for
employment of all agents, employees, subcontractors and consultants whose services are
required by this Agreement.
18. DISCRIMINATION AND HARASSMENT PROHIBITED
Contractor will comply with all applicable local, state and federal laws and regulafions prohibiting
discrimination and harassment.
19. DISPUTE RESOLUTION
If a dispute should arise regarding the performance of the Sen/ices the following procedure will
be used to resolve any quesfions of fact or interpretation not othenwise settied by agreement
between the parties. Representatives of Contractor or City will reduce such quesfions, and their
respective views, to writing. A copy of such documented dispute will be fonwarded to both parties
involved along with recommended methods of resolution, which would be of benefit to both
parties. The representative receiving the letter will reply to the letter along with a recommended
method of resolution within ten (10) business days. Ifthe resolution thus obtained is unsatisfactory
to the aggrieved party, a letter oufiining the disputes will be fonwarded to the City Manager. The
City Manager will consider the facts and solufions recommended by each party and may then opt
to direct a solution to the problem. In such cases, the acfion of the City Manager will be binding
upon the parties involved, although nothing in this procedure will prohibit the parties from seeking
remedies available to them at law.
20. TERMINATION
In the event of the Contractor's failure to prosecute, deliver, or perform the Sen/ices, City may
terminate this Agreement for nonperformance by notifying Contractor by certified mail of the
terminafion. If City decides to abandon or indefinitely postpone the work or sen/ices contemplated
by this Agreement, City may terminate this Agreement upon written nofice to Contractor. Upon
nofificafion of termination. Contractor has five (5) business days to deliver any documents owned
by City and all work in progress to City address contained in this Agreement. City will make a
determination of fact based upon the work product delivered to City and ofthe percentage of work
that Contractor has performed which is usable and of worth to City in having the Agreement
completed. Based upon that finding City will determine the final payment ofthe Agreement.
Either party upon tendering thirty (30) days written nofice to the other party may terminate this
Agreement. In this event and upon request of City, Contractor will assemble the work product and
put it in order for proper filing and closing and deliver it to City. Contractor will be paid for work
performed to the terminafion date; however, the total will not exceed the lump sum fee payable
under this Agreement. City will make the final determination as to the portions of tasks completed
and the compensation to be made.
21. COVENANTS AGAINST CONTINGENT FEES
Contractor warrants that Contractor has not employed or retained any company or person, other
than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that
Contractor has not paid or agreed to pay any company or person, other than a bona fide
employee, any fee, commission, percentage, brokerage fee, gift, or any other considerafion
confingent upon, or resulfing from, the award or making of this Agreement. For breach or violafion
of this warranty. City will have the rightto annul this Agreement without liability, or, in its discrefion.
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to deduct from the Agreement price or considerafion, or othenwise recover, the full amount of the
fee, commission, percentage, brokerage fees, gift, or confingent fee.
22. CLAIMS AND LAWSUITS
By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must
be asserted as part ofthe Agreement process as set forth in this Agreement and not in anticipation
of litigafion or in conjunction with lifigafion. Contractor acknowledges that if a false claim is
submitted to City, it may be considered fraud and Contractor may be subject to criminal
prosecution. Contractor acknowledges that California Government Code secfions 12650 et seq.,
the False Claims Act applies to this Agreement and, provides for civil penalfies where a person
knowingly submits a false claim to a public enfity. These provisions include false claims made
with deliberate ignorance of the false informafion or in reckless disregard of the truth or falsity of
informafion. If City seeks to recover penalfies pursuant to the False Claims Act, it is entified to
recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a
false claim may subject Contractor to an administrative debarment proceeding as the result of
which Contractor may be prevented to act as a Contractor on any public work or improvement for
a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is
grounds for City to terminate this Agreement.
23. JURISDICTIONS AND VENUE
Any acfion at law or in equity brought by either of the parties for the purpose of enforcing a right
or rights provided for by this Agreement will be tried in a court of competent jurisdicfion in the
County of San Diego, State of California, and the parties waive all provisions of law providing for
a change of venue in these proceedings to any other county.
24. SUCCESSORS AND ASSIGNS
It is mutually understood and agreed that this Agreement will be binding upon City and Contractor
and their respecfive successors. Neither this Agreement or any part of it nor any monies due or
to become due under it may be assigned by Contractor without the prior consent of City, which
shall not be unreasonably withheld.
25. ENTIRE AGREEMENT
This Agreement, together with any other written document referred to or contemplated by it, along
with the purchase order for this Agreement and its provisions, embody the entire Agreement and
understanding between the parties relafing to the subject matter of it. In case of conflict, the terms
ofthe Agreement supersede the purchase order. Neither this Agreement nor any of its provisions
may be amended, modified, waived or discharged except in a writing signed by both parties.
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26. AUTHORITY
The individuals execufing this Agreement and the instruments referenced in it on behalf of
Contractor each represent and warrant that they have the legal power, right and actual authority
to bind Contractor to the terms and conditions of this Agreement.
CONTRACTOR
ELEN CONSULTING,
corporafion
., a California
CITY OF CARLSBAD, a municipal
corporafion of the State of California
Dmitriy Nathanson/ President
(print name/fitle)
f-^ Division Director
as authorized by the City Manager
Patrick Thomas
By:
(sign here)
Cory Murphy / Assistant Secretary
(print name/fitle)
If required by City, proper notarial acknowledgment of execution by contractor must be attached.
If a corporafion. Agreement must be signed by one corporate officer from each of the following
two groups.
Group A
Chairman,
President, or
Vice-President
Group B
Secretary,
Assistant Secretary,
CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolufion certified by the secretary or assistant
secretary under corporate seal empowering the officer(s) signing to bind the corporation.
APPROVED AS TO FORM:
CELIA A. BREWER, City Attorney
BY:_ _ _
Assistant City Attorne^
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EXHIBIT "A"
SCOPE OF SERVICES
Scope of Services
1. Provide a Microsoft .NET application to track building energy reduction goals for the City of
Carisbad based on use inputted energy baseline and energy reduction projects.
2. The application will enable City Staff to:
• Input building information and energy reduction goals
• Input energy reduction projects per building
• Track Energy reducfion and compare the reduction to a building reducfion goal
• Track energy reducfion based on all building goal progress
• Compare the reduction to the overall reduction goal
• Out to PDF or CSV file formats for goal tracking and reporting
• Track goals based on user inputted data.
3. Setup approximately thirty (30) City owned buildings and input data for up to 10 existing
energy improvements per building.
4. Install the tool on five (5) City Computers.
5. Provide one (1) year of telephone technical support for tool users.
Clarifications
1. Tracking will not be automated and data will need to manually inputted into the program.
2. The application graphical user interface (GUI) will go through a maximum of three design
iterations.
3. The application will be provided in a .exe or .msi file to be installed on a maximum of five (5)
computers
4. The source code and final rights to the program will be the shared property of the City of
Carisbad and Elen Consulting, Inc.
5. Application will have to be fully tested, installed, and funcfional by April 15, 2015.
Total not to exceed amount: $23,000
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Donna Heraty
From: Donna Heraty
Sent: Tuesday, March 31, 2015 3:34 PM
To: 'dnathanson@elenconsulting.com'
Cc: Rhonda Gasper-Heather; Shelley Collins; Sherry Freisinger
Subject: Form 700 - Conflict of Interest
Dear Consultant:
Regarding your agreement with the City of Carisbad for energy efficiency application development services, PEM1190 -
// your agreement states: Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the
nbililirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interest in all four
CptesfOf/es.
It has been determined by the City Clerk's Office that you are not required to file a Conflict of Interest Statement for this
agreement with the City of Carlsbad. A copy of this email will be added to your file memorializing this decision.
Should you have any questions, please do not hesitate to contact me.
Kindest regards.
Ccityof
Carlsbad
Shelley Collins, CMC
Assistant City Clerk
City Clerk's Office
City of Carisbad
1200 Carlsbad Village Drive
Carisbad, CA 92008-1949
www.carisbadca.gov
760-434-2917 I ShelleY.Collins@carisbadca.gov
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