HomeMy WebLinkAboutUniversity of San Diego; 2015-07-08; PEM1240PEM 1240
AGREEMENT FOR ENERGY CONSULTING SERVICES
UNIVERSITY OF SAN DIEGO
HIS/AGREEMENT is made and entered into as of the ^ day of
'/^y\ / • , 2015, by and between the CITY OF CARLSBAD, a municipal
ition/t"City"), and UNIVERSITY OF SAN DIEGO, a 501 (C)(3) non-profit organization,
ontractor").
RECITALS
A. City requires the professional services of a consultant that is experienced in energy
and climate mitigation consulting services.
B. Contractor has the necessary experience in providing professional services and
advice related to energy and climate mitigation programs.
C. Contractor has submitted a proposal to City and has affirmed its willingness and
ability to perform such work.
NOW, THEREFORE, in consideration 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 services (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 practicing 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 on which
the Agreement is fully executed by the parties. Extensions will be based upon a satisfactory review
of Contractor's performance, City needs, appropriation of funds by the City Council, and the
agreement of both parties. The parties will prepare a written amendment indicating the effective
date and length of the extended Agreement.
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 initial Agreement term will be
twenty-five thousand dollars ($25,000). No other compensation for the Services will be allowed
except for items covered by subsequent amendments to this Agreement. The City reserves the
right to withhold a ten percent (10%) retention until City has accepted the work and/or Services
specified in Exhibit "A".
Incremental payments, if applicable, should be made as outlined in attached Exhibit "A".
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6. STATUS OF CONTRACTOR
Contractor will perform the Services 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 services under this Agreement will not be
considered employees of City for any purposes.
The payment made to Contractor pursuant to the Agreement will be the full and complete
compensation to which Contractor is entitled. 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, retirement 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 election, City may deduct the indemnification amount from any balance
owing to Contractor.
7. SUBCONTRACTING
Contractor will not subcontract any portion of the Services 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
relationship 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 writing by City.
8. OTHER CONTRACTORS
The City reserves the right to employ other Contractors in connection 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 reasonable
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 engaged by
Contractor, anyone directly or indirectly employed by any of them or anyone for whose acts any
of them may be liable, except to the extent such claims, damages, losses or expenses arise from
or relate to the negligence or willful misconduct of the City or the City's officers, officials,
employees, volunteers or agents.
City agrees to indemnify and hold harmless the Contactor 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 work described herein caused by any negligence,
recklessness, or willful misconduct of the City, any subcontractor of the City, 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'
compensation is included as a loss, expense or cost for the purposes of this section, and that this
section will survive the expiration or eariy termination of this Agreement.
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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 Rating of not less than "A-:VH"; OR with a surplus
line insurer on the State of California's List of Approved Surplus Line Insurers (LASLI) with a rating
in the latest Best's Key Rating Guide of at least "A:X"; OR an alien non-admitted insurer listed by
the National Association of Insurance Commissioners (NAIC) latest quarteriy listings report.
10.1 Coverage and Limits.
Contractor will maintain the types of coverage and minimum limits indicated below, unless the
Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage
will not constitute any limitations or cap on Contractor's indemnification obligations under this
Agreement. City, its officers, agents and employees make no representation thatthe limits ofthe
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. The full limits available to the named insured shall also be available
and applicable to the City as an additional insured.
10.1.1 Commercial General Liabilitv Insurance. $2,000,000 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 Liabilitv. (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 Employer's Liabilitv. Workers' Compensation limits as
required by the California Labor Code. Workers' Compensation will not be required if Contractor
has no employees and provides, to City's satisfaction, a declaration stating this.
10.1.4 Professional Liabilitv. 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 completion of the work.
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 additional 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 ofthe 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 Notice provisions of this Agreement.
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10.3 Providing 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 Coverage. 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 existing policies in order to 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 any time, complete
and certified copies of any or all required insurance policies and endorsements.
11. BUSINESS UCENSE
Contractor will obtain and maintain a City of Carlsbad Business License for the term of the
Agreement, as may be amended from time-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 on a mutually agreed upon date and time 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
activities 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 Contractor. In the event this Agreement is terminated, all
work product produced by Contractor or its agents, employees and subcontractors are required
to be delivered to City pursuant to this Agreement will be promptly delivered to City ("Results").
City will have the right to use any documents delivered under this agreement.
14. COPYRIGHTS
All copyrights that arise from the services will be vested in Contractor. The City will have the right
to use Results, as defined in Number 13, Ownership of Documents.
15. NOTICES
The name of the persons who are authorized to give written notice or to receive written notice on
behalf of City and on behalf of Contractor under this Agreement.
For Citv For Contractor
Name Mike Grim Name Scott J. Anders
Title Senior Planner Title Director
Environmental
Department Management Address 5998 Alcala Park
City of Carlsbad San Diego CA 92110-2492
Address 1635 Faraday Avenue Phone No. 619-260-4589
Carisbad CA 92008 Email scottanders(gsandiego.edu
Phone No. 760-602-4623
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Each party will notify the other immediately of any changes of address that would require any
notice or delivery to be directed to another address.
16. CONFLICT OF INTEREST
Contractor shall file a Confiict 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 Services by Contractor. Contractor will at all times observe and comply with these laws,
ordinances, and regulations and will be responsible for the compliance of Contractor's services
with all applicable laws, ordinances and regulations.
Contractor will be aware ofthe requirements ofthe Immigration 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 regulations prohibiting
discrimination and harassment.
19. DISPUTE RESOLUTION
If a dispute should arise regarding the performance of the Services the following procedure will
be used to resolve any questions of fact or interpretation not otherwise settled by agreement
between the parties. Representatives of Contractor or City will reduce such questions, and their
respective views, to writing. A copy of such documented dispute will be forwarded 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. If the resolution thus obtained is unsatisfactory
to the aggrieved party, a letter outlining the disputes will be fonA/arded to the City Manager. The
City Manager will consider the facts and solutions recommended by each party and may then opt
to direct a solution to the problem. In such cases, the action 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 Services, City may
terminate this Agreement for nonperformance by notifying Contractor by certified mail of the
termination. If City decides to abandon or indefinitely postpone the work or services contemplated
by this Agreement, City may terminate this Agreement upon written notice to Contractor. Upon
notification of terminafion. Contractor will promptly deliver any documents owned by City and all
work in progress to City address contained in this Agreement. Contractor will be paid for work
performed to the termination date, including uncancellable obligations; however, the total will not
exceed the lump sum fee payable under this Agreement. City and Contractor will jointly make the
final determination as to the portions of tasks completed and the compensafion to be made.
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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.
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 resulting from, the award or making of this Agreement. For breach or violafion
of this warranty. City will have the right to annul this Agreement without liability, or, in its discrefion,
to deduct from the Agreement price or considerafion, or otherwise recover, the full amount ofthe
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 anticipafion
of lifigafion or in conjuncfion with lifigation. 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 sections 12650 etseq.,
the False Claims Act applies to this Agreement and, provides for civil penalfies where a person
knowingly submits a false claim to a public entity. These provisions include false claims made
with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of
informafion. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to
recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a
false claim may subject Contractor to an administrafive 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. JURISDICTION AND VENUE
Any action 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 respective successors. Neither this Agreement nor 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
of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions
may be amended, modifled, 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
UNIVERSITY OF SAN DIEGO, a 501
(C)(3) non-profit organizafion
CITY OF CARLSBAD, a municipal
corporafion of the State of California
(sign here)
Carole L. Huston, PhD / Associate Provost
(print name/fitle)
By:
Patrick A. Thomas / PubfTc Works Director
Katy Roig, Assocrate VP & Controller
(print name/title)
If required by City, proper notarial acknowledgment of execution by contractor must be attached.
If a corporation. 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: ML. Assistant City Attomey
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EXHIBIT "A"
EPIC
ENERGY POLICY INITIATIVES CENTER
UNIVERSITY OF SAN DIEGO SCHOOL OF LAW
5998 flicali Park
San Diego, California 92110-2492
TEL (619) 260-4589
FAX (619) 260-4763
SCOPE OF SERVICES
The Energy Policy Initiatives Center (EPIC) will support an analysis of CAP implementation
costs, including preparation of a prioritized implementation plan and a cost esfimate for year 1,
and years 2-5. The following tasks will be completed for the project.
Project Tasks
1. Attend Project Meefings
a. In person kick off meeting to be scheduled within 1 week of contract execution.
b. Weekly conference calls with contract administrator Mike Grim and/or Elaine
Lukey.
c. Possible meetings with city operations divisions, City Manager and/or attendance
at Council presentafions.
d. Other meetings as needed.
2. Review Climate Action Plan and Implementation-Related Documentation
a. Review draft CAP measures,
b. Review and revise internal CAP matrix table.
c. Review and revise internal cosfing spreadsheet, including estimating cost and
resources needed to complete each GHG reduction measure acfion, such as city
staff fime, consulfing fime, software applications for data management, and
promofional program materials. Cost and resources estimates will be provided for
Year 1 and Years 2 to 5.
d. Provide an assessment of outside funding opportunifies and partnerships to
leverage the total costs of CAP implementation.
3. Prepare Project Reports
a. Prepare Executive Summary report.
b. Prepare Draft report due August 10, 2015.
c. Prepare Final report due August 24, 2015.
Note: If Council adoption schedule changes consultant will be advised of changed
due dates.
4. Other Tasks as Assigned
a, Complefion of related acfivifies and tasks to be assigned as needed will be billed
on a time and materials basis both before and after August 31.
Energy Policy Initiatives Center www.sandiego.edu/epic
CAP Implementation Cost Project Scope of Services
Project Budget
The table below provides a breakdown of the estimated cost per task,
Cost by Task Cost
1.0 Attend Project Meetings 6,439
2.0 Review Climate Action Plan and Implementation-Related Documentation 6,785
3.0 Prepare Project Reports 7,304
4.0 Other Task as Assigned 2,077
Total Estimated Project Cost 22,604
EPIC Personnel and Other Rates
The table below provides a list of hourly rates by position, Note these rates are effective until
June 30, 2016. After this date new rates will apply.
Position Hourly Rate
Director $116.04
Assistant Director S9I 66
St<?ft Attomey $73 40
'TecHnical Pbliqy Analyst $44 88 I
Policy Analyst $31.18
The following rates also apply to work conducted for this project.
Activity Rate
Mileage $0.56
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Energy Policy Initiatives Center
Donna Heraty
From: Donna Heraty
Sent: Thursday, July 09, 2015 2:29 PM
To: 'scottanders(a)sandiego.edu'
Cc: Shelley Collins
Subject: FW: Form 700 - Conflict of Interest
Dear Consultant:
Regarding your agreement with the City of Carlsbad for energy consulting services, PEM1240 -
// your agreement states: Contractor shall file a Conflict of Interest Statement with the City Clerl< in accordance with the
requirements ofthe City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interest in all four
categories.
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
CityofCarlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008-1949
www.carlsbadca.gov
760-434-2917 1 Shellev.Collins@carlsbadca.gov
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