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HomeMy WebLinkAboutAgenda Report - July 16, 2014 C-12AGENDA ITEM C.IL Crrv or Lour CouNcrr CovrMUNrcATroN TM AGENDA TITLE: MEETING DATE: PREPARED BY: Adopt Resolution Authorizing the City Manager to Execute Professional Services Agreement with Apogee lnteractive, lnc., of Tucker, Georgia for On-line Customer Energy Audit Applications ($24,300) July 16,2014 Electric Utility Director REGOMMENDED AGTION Adopt a resolution authorizing the City Manager to execute a professional services agreement with Apogee lnteractive, lnc., of Tucker Georgia for on-line customer energy audit applications for an amount not to exceed $24,300. BAC KGROUND I NFORMATION Since 2011, Apogee has developed and implemented various residential and commercial on-line energy audit tools for Lodi Electric Utility (LEU) customers as part of LEU's Public Benefits Program. Over the past few years, Apogee has improved upon its on-line application by adding special purpose calculators and has experienced an increase in on-line usage. ln one year, the number of residential users has nearly tripled, while commercial usage remäins fairly constant. These audit tools provide customers with the necessary analysis required to be eligible for rebates under the LEU's energy efficiency rebate prog rams. Apogee is proposing to continue supporting this on-line service for an additional year at a cost not to exceed $24,300 for annual subscriptions to residential, commercial and special purpose on-line calculators. FISCAL IMPACT The fiscal impact of services such as these is dependent upon actual energy efficiency measures implemented. FUNDING:lncluded in FY 2014115 Budget Account No. 164605 .7323 Jordan rs Deputy City Manager/l h Electric Utility Director PREPARED BY: Melissa Price, Rates & Resources Manager EAK/MP/lst APPROVED: ity Manager AGREEMENT FOR PROFESSTONAL SERVICES ARTICLE 1 PARTIES AND PURPOSE Section l.l Parties THIS AGREEMENT is entered into on , 20 , by and between the CITY OF LODI, a municipal corporation (hereinafter "C|TY"), and Apogee lnteractive, I nc. (hereinafter "CONTRACTOR'). Section 1.2 Purpose CITY selected the CONTRACTOR to provide the services required in accordance with attached Scope of Services, Exhibit A, attached and incorporated by this reference. CITY wishes to enter into an agreement with CONTRACTOR for online applications for customer energy audits (hereinafter "Project") as set forth in the Scope of Services attached here as Exhibit A. CONTRACTOR acknowledges that it is qualified to provide such services to CITY. scoptTlcilïvrces Section 2.1 Scope of Services CONTRACTOR, for the benefit and at the direction of CITY, shall perform the Scope of Services as set forth in Exhibit A. Section 2.2 Time For Gommencement and Gompletion of Work CONTRACTOR shall commence work pursuant to this Agreement, upon receipt of a written notice to proceed from CITY or on the date set forth in Section 2.6, whichever occurs first, and shall perform all services diligently and complete work under this Agreement based on a mutually agreed upon timeline or as otheruvise designated in the Scope of Services. CONTRACTOR shall submit to CITY such reports, diagrams, drawings and other work products as may be designated in the Scope of Services. CONTRACTOR shall not be responsible for delays caused by the failure of CITY staff to provide required data or review documents within the appropriate time frames. The review time by CITY and any other agencies involved in the project shall not be counted against CONTRACTOR's contract performance period. Also, any delays due to weather, vandal¡sm, acts of God, etc., shall not be counted. CONTRACTOR shall remain in contact with reviewing agencies and make all efforts to review and return all comments. Section 2.3 Meetinqs CONTRACTOR shall attend meetings as may be set forth in the Scope of Services. Section 2.4 Staffinq CONTRACTOR acknowledges that CITY has relied on CONTRACTOR's capabilities and on the qualifications of CONTRACTOR's principals and staff as identified in its proposal to CITY. The Scope of Services shall be performed by CONTRACTOR, unless agreed to othenruise by CITY in writing. CITY shall be notified by CONTRACTOR of any change of Project Manager and CITY is granted the right of approval of all original, additional and replacement personnel at CITY's sole discretion and shall be notified by CONTRACTOR of any changes of CONTRACTOR's project staff prior to any change. CONTRACTOR represents it is prepared to and can perform all services within the Scope of Services (Exhibit A) and is prepared to and can pedorm all services specified therein. CONTRACTOR represents that it has, or will have at the time this Agreement is executed, all licenses, permits, qualifications, insurance and approvals of whatsoever nature are legally required for CONTRACTOR to practice its profession, and that CONTRACTOR shall, at its own cost and expense, keep in effect during the life of this Agreement all such licenses, permits, qualifications, insurance and approvals, and shall indemnify, defend and hold harmless CITY against any costs associated with such licenses, permits, qualifications, insurance and approvals which may be imposed against CITY under this Agreement. Section2.S Subcontracts Unless prior written approval of CITY is obtained, CONTRACTOR shall not enter into any subcontract with any other party for purposes of providing any work or services covered by this Agreement. Section 2.6 Term The term of this Agreement commences on August 1, 2014 and terminates upon the completion of the Scope of Services or on June 30,2015, whichever occurs first. .ofiËI'$å¡"1o* Section3.l Compensation CONTRACTOR's compensation for all work under this Agreement shall conform to the provisions of the Fee Proposal, attached hereto as Exhibit B and incorporated by this reference. CONTRACTOR shall not undertake any work beyond the scope of this Agreement unless such additionalwork is approved in advance and in writing by CITY. Section 3.2 Method of Pavment CONTRACTOR shall submit invoices for completed work on a monthly basis, or as othen¡vise agreed, providing, without limitation, details as to amount of hours, individual peforming said work, hourly rate, and indicating to what aspect of the Scope of Services said work is attributable. CONTRACTOR's compensation for all work under this Agreement shall not exceed the amount of the Fee Proposal. Section 3.3 Costs The Fee Proposal shall include all reimbursable costs required for the performance of the Scope of Services. Payment of additional reimbursable costs considered to be over and above those inherent in the original Scope of Services shall be approved in advanced and in writing, by CITY. Section 3.4 Auditinq CITY reserves the right to periodically audit all charges made by CONTRACTOR to CITY for services under this Agreement. Upon request, CONTRACTOR agrees to furnish CITY, or a designated representative, with necessary information and assistance needed to conduct such an audit. CONTRACTOR agrees that CITY or its delegate will have the right to review, obtain and copy all records pertaining to performance of this Agreement. CONTRACTOR agrees to provide CITY or its delegate with any relevant information requested and shall permit CITY or its delegate access to its premises, upon reasonable notice, during normal business hours for the purpose of interviewing employees and inspecting and copying such books, records, accounts, and other material that may be relevant to a matter under investigation for the purpose of determining compliance with this requirement. CONTRACTOR further agrees to maintain such records for a period of three (3) years after final payment under this Agreement. ",r. rrrofrËå8å?åou,r,o*, Section4.l Nondiscrimination ln performing services under this Agreement, CONTRACTOR shall not discriminate in the employment of its employees or in the engagement of any sub CONTRACTOR on the basis of race, color, religion, sex, sexual orientation, marital status, national origin, ancestry, age, or any other criteria prohibited by law. Section 4.2 ADA Compliance ln performing services under this Agreement, CONTRACTOR shall comply with the Americans with Disabilities Act (ADA) of 1990, and all amendments thereto, as well as all applicable regulations and guidelines issued pursuant to the ADA. Section 4.3 lndemnification and ResponsibiliW for Damaqe CONTRACTOR to the fullest extent permitted by law, shall indemnify and hold harmless CITY, its elected and appointed officials, directors, officers, employees and volunteers from and against any claims, damages, losses, and expenses (including reasonable attorney's fees and costs), arising out of performance of the services to be performed under this Agreement, provided that any such claim, damage, loss, or expense is caused by the negligent acts, errors or omissions of CONTRACTOR, any subcontractor employed directly by CONTRACTOR, anyone directly or indirectly employed by any of them, or anyone for whose acts they may be liable, except those injuries or damages arising out of the active negligence, sole negligence, or sole willful misconduct of the City of Lodi, its elected and appointed officials, directors, officers, employees and volunteers. CITY may, at its election, conduct the defense or participate in the defense of any claim related in any way to this indemnification. lf CITY chooses at its own election to conduct its own defense, participate in its own defense, or obtain independent legal counsel in defense of any claim related to this indemnification, CONTRACTOR shall pay all of the costs related thereto, including without limitation reasonable attorney fees and costs. The defense and indemnification obligations required by this Agreement are undertaken in addition to, and shall not in any way be limited by the insurance obligations set forth herein. Section 4.4 No Personal Liabilitv Neither the City Council, nor any other officer or authorized assistant or agent or City employee shall be personally responsible for any liability arising under this Agreement. Section 4.5 Responsibilitv of CITY CITY shall not be held responsible for the care or protection of any material or parts of the work described in the Scope of Services prior to final acceptance by CITY, except as expressly provided herein. Section 4.6 lnsurance Requirements for GONTRAGTOR CONTRACTOR shall take out and maintain during the life of this Agreement, insurance coverage as set forth in Exhibit C attached hereto and incorporated by this reference. Section 4.7 Successors and Assigns CITY and CONTRACTOR each bind themselves, their partners, successors, assigns, and legal representatives to this Agreement without the written consent of the others. CONTRACTOR shall not assign or transfer any interest in this Agreement without the prior written consent of CITY. Consent to any such transfer shall be at the sole discretion of CITY. Section 4.8 Notices Any notice required to be given by the terms of this Agreement shall be in writing signed by an authorized representative of the sender and shall be deemed to have been given when the same is personally served or upon receipt by express or overnight delivery, postage prepaid, or three (3) days from the time of mailing if sent by first class or certified mail, postage prepaid, addressed to the respective parties as follows: To CITY:City of Lodi 221 West Pine Street P.O. Box 3006 Lodi, CA 95241-1910 Attn: Melissa Price, Rates & Resources Manager To CONTRACTOR: Apogee lnteractive, lnc. 100 Crescent Centre Parkway, Suite 450 Tucker, GA 30084 Attn: James Malcolm Section 4.9 Cooperation of GITY CITY shall cooperate fully and in a timely manner in providing relevant information it has at its disposal relevant to the Scope of Services. Section 4.10 GONTRACTOR is Not an Emplovee of CITY CONTRACTOR agrees that in undertaking the duties to be performed under this Agreement, it shall act as an independent contractor for and on behalf of CITY and not an employee of CITY. CITY shall not direct the work and means for accomplishment of the services and work to be performed hereunder. CITY, however, retains the right to require that work performed by CONTRACTOR meet specific standards without regard to the manner and means of accomplishment thereof. Section 4.11 Termination CITY may terminate this Agreement, with or without cause, by giving CONTRACTOR at least ten (10) days written notice. Where phases are anticipated within the Scope of Services, at which an intermediate decision is required concerning whether to proceed further, CITY may terminate at the conclusion of any such phase. Upon termination, CONTRACTOR shall be entitled to payment as set forth in the attached Exhibit B to the extent that the work has been performed. Upon termination, CONTRACTOR shall immediately suspend all work on the Project and deliver any documents or work in progress to CITY. However, CITY shall assume no liability for costs, expenses or lost profits resulting from services not completed or for contracts entered into by CONTRACTOR with third parties in reliance upon this Agreement. Section 4.12 Confidentialitv CONTRACTOR agrees to maintain confidentiality of all work and work products produced under this Agreement, except to the extent othenryise required by law or permitted in writing by CITY. CITY agrees to maintain confidentiality of any documents owned by CONTRACTOR and clearly marked by CONTRACTOR as "Confidential" or "Proprietary", except to the extent othenruise required by law or permitted in writing by CONTRACTOR. CONTRACTOR acknowledges that CITY is subject to the California Public Records Act. Section 4.13 Applicable Law. Jurisdictiqn. Severabilitv. and Attornev's Fees This Agreement shall be governed by the laws of the State of California. Jurisdiction of litigation arising from this Agreement shall be venued with the San Joaquin County Superior Court. lf any part of this Agreement is found to conflict with applicable laws, such part shall be inoperative, null, and void insofar as it is in conflict with said laws, but the remainder of this Agreement shall be in force and effect. ln the event any dispute between the parties arises under or regarding this Agreement, the prevailing party in any litigation of the dispute shall be entitled to reasonable attorney's fees from the party who does not prevail as determined by the San Joaquin County Superior Coud. Section 4.14 Citv Business License Requirement CONTRACTOR acknowledges that Lodi Municipal Code Section 3.01.020 requires CONTRACTOR to have a city business license and CONTRACTOR agrees to secure such license and pay the appropriate fees prior to performing any work hereunder. Section 4.15 Gaptions The captions of the sections and subsections of this Agreement are for convenience only and shall not be deemed to be relevant in resolving any question or interpretation or intent hereunder. Section 4.16 lnteqration and Modification This Agreement represents the entire understanding of CITY and CONTRACTOR as to those matters contained herein. No prior oral or written understanding shall be of any force or effect with respect to those matters covered hereunder. This Agreement may not be modified or altered except in writing, signed by both parties. Section 4.17 Contract Terms Prevail All exhibits and this Agreement are intended to be construed as a single document. Should any inconsistency occur between the specific terms of this Agreement and the attached exhibits, the terms of this Agreement shall prevail. Section 4.18 Severabilitv The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement. Section 4.19 Ownership of Documents All documents, photographs, reports, analyses, audits, computer media, or other material documents or data, and working papers, whether or not in final form, which have been obtained or prepared under this Agreement, shall be deemed the property of CITY. Upon CITY's request, CONTRACTOR shall allow GITY to inspect all such documents during CONTRACTOR's regular business hours. Upon termination or completion of services under this Agreement, all information collected, work product and documents shall be delivered by CONTRACTOR to CITY within ten (10) calendar days. CITY agrees to indemnify, defend and hold CONTRACTOR harmless from any liability resulting from CITY's use of such documents for any purpose other than the purpose for which they were intended. Section 4.20 Authoritv The undersigned hereby represent and warrant that they are authorized by the parties to execute this Agreement. Section 4.21 Federal Transit Fundinq Gonditions tr lf the box at left is checked, the Federal Transit Funding conditions attached as Exhibit D apply to this Agreement. ln the event of a conflict between the terms of this Agreement or any of its other exhibits, and the Federal Transit Funding Conditions, the Federal Transit Funding Conditions will control. lN WITNESS WHEREOF, GITY and GONTRACTOR have executed this Agreement as of the date first above written. CITY OF LODI, a municipal corporation ATTEST: RANDI JOHL-OLSON City Clerk APPROVED AS TO FORM: JANICE D. MAGDICH, City Attorney By: STEPHEN SCHWABAUER City Manager APOGEE INTERACTIVE, INC. By: \.-/ Name: James Malcolm K Tfile: cFo & EVP '..jAttachments: Exhibit A - Scope of Services ExhibitB-FeeProposal Exhibit G - lnsurance Requirements Exhibit D - FederalTransit Funding Conditions (if applicable) FundingSource: 164605.7323 (Business Unit & Account No.) Doc lD: CA:Rev.06.2014 APPEND¡X A Scope of Services APOGEE agrees to administer the HomeEnergySuite IHES), CommercialEnergyCalculator (CEC) and Special Purpose Calculators (SPCs/ for the City of Lodi, in strict conformity with the terms and conditions of this contract. APOGEE will provide all necessary implementation services to deliver the online applications, including all maintenance, under this agreement. lmplementation Services will be provided by APOGEE include: o HomeEnergyCalculator online audit tool. Kid's Korner educational content¡ Residential Energy Systems reference library content. Lighting and Appliance calculatorso lnteractiveEnergyHomeeducationalapplication¡ CommercialEnergyCalculatoronline audittool*o 8 additional Special Purpose Calculatorso Residentiallrrigationo Pool & Spao Vampire Losseso TV Calculatoro Commercial Lightingo Electric Vehicleo Space Heatero Water Drip Calculator APPENDIX B Fee Proposal The annual subscription totals for the Home Energy Suite and the Commercial Energy Calculator is $12,700. There is an additional fee for the I Special Purpose Calculators (SPCs). The annual subscription for the SPC's is $11,600. The annual subscription for the Home Energy Suite, Commercial Energy Calculator, and the I Special Purpose Calculators in 2014 and on is $24,300. EXHIBIT C lnsurance Requirements for Contractor The Contractor shall iake out and maintain during the life of this Agreement, insurance coverage as listed below. These insurance policies shall protect Contractor and any subcontractor performing work covered by this Agreement from claims for damages for personal injury, including accidental death, as well as from claims for property damages, which may arise from Contractor's operations under this Agreement, whether such operations be by Contractor, or by any subcontractor, or by anyone directly or indirectly employed by either of them, and the amouni of such insurance shall be as follows: 1. COMPREHENSIVEGENERALLIABILITY $1,000,000 Each Occurrence $2,000,000 Aggregate 2. PROFESSIONAL LIABILITY / ERRORS AND OMISSIONS $1,000,000 Each Occurrence All limits are to be designated strictly for the Gity of Lodi, its elected and appointed boards, commissions, officers, agents, employees, and volunteers. All deductibles or self-insured retentions (SlR) must be disclosed to City's Risk Manager for approval and shall not reduce the limits of liability set forth hereinabove. lnsurance policies containing any deductible or SIR provision shall provide, or be endorsed to provide, that the deductible or SIR may be satisfied by either the Named lnsured(s) or the City of Lodi. It is required that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits set forth above, shall be available to City as an additional insured. Furthermore, the requirements for coverage and limits shall be (i) the minimum coverage and limits specifìed in ihese insurance requirements; or (ii) ihe broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the Gontractor; whichever is greater. Contractor agrees and stipulates that any insurance coverage provided to the City of Lodi shall provide for a claims period following termination of coverage which is at least consistent with the claims period or statuies of limitations found in the California Tort Claims Act (California Government Code Section 810 et seq.). A copy of the certificate(s) of insurance with the following endorsements shall be furnished to the City: (a) Additional Named lnsured Endorsement Pursuant to a separate endorsement (lSO form CG 2010 (11/S5) or equivalent form) such insurance as is afforded by this policy shall also apply to the City of Lodi, its elected and appointed boards, commissions, officers, agents, employees, and volunteers as additional named insureds. (b) Primarv and Non-Contributorv lnsurance Endorsemeni Additional insurance coverage under the Gontractor's policy shall be "primary and non-contributory" and will not seek contr¡bution from City's insurance or self-insurance and shall be at least as broad as ISO form CG 20 01 04 13. NOTE: (1)The street address of the CITY OF LODI must be shown along with (a) and (b) above: 221 West Pine Street, Lodi, California, sszaoffi-ll-insurance certificate must sÌaie, on its face or as an endorsement, a description of the proiect that it is insuring. (c) Limits of Coveraqe The limits of insurance coverage required may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance of Contractor shall contain, or be endorsed to contain, a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of the City before the City's own insurance or self-insurance shall be called upon io protect the City as a named insured. (d) Severabilitv of lnterest Clause The term "insured" is used severally and not collectively, but the inclusion herein of more than one insured shall not operate to increase the limit of the company's liability. (e) Notice of Cancellation or Chanqe in Coveraoe Endorsement This policy may not be canceled nor the coverage reduced by the company without 30 days' prior written notice of such cancellation or reduction ¡n coverage to the Risk Manager, City of Lodi, 221 West Pine St., Lodi,cA 95240. Pagellof2pages Risk: rev.03.2014 lns urance Requirements for Contractor (contin ued) (0 Continuitv of Coveraqe All policies shall be in effeci on or before the fìrst day of the Term of this Agreement. At least thirty (30) days prior to the exp¡rat¡on of each insurance policy, Contractor shalt furnish a cêrtiRcatels¡ showing tnát à new br extended policy has been obtained which meets the minimum requirements of this Agreement. Contractor shall provide proof of continuing insurance on at least an annual basis during the Íerm. lf Contractor's insurance lapses or is discontinued for any reason, Contractor shall imme-diately notify the City and immediately obtain replacement insurance. (S) Failure to Complv lf Gontractor fails or refuses to obtain and maintain the required insurance, or fails to provide proof of coverage, the City may obtain the insurance. Contractor shall reimburse the City for premiums paid, with interest on the premium paid by ihe City ai the maximum allowable legal rate then in effect in California. The City shall notify Conlractor of such payment of premiums within thirty (áO) oays of payment stating the amountpaid' the name{s) of the insurer(s), and rate of interest. Contractor ðnatt þay sucn'reímbursemeni and interest on the first 11"'¡ day of the month following the City's notice. Notwithstãnding and other provision of this Agreement, if Contractor fails or refuses to obtain or maintain insurance as requiÉd by this agreement, or failsto provide proof of insurance, the City may terminate this Agreement upon suih breaóh. Upon such termination, Contractor shall immediately cease use of the Site or facilities and commence and diligenfly pursue the removal of any and all of iis personal property from the site or facilities. (h) Qualifiedlnsurer(s) All in_surance required by the terms of this Agreement must be provided by insurers licensed to do business inthe State of California which are rated at least "A-, Vl" by the AM Eiest Ratings Guide, and which are acceptable to the C_ity. Non-admitted surplus lines carriers may be accepted provided they are included on the most recent list of California eligible surplus lines insurers (LESLI list) and otherwise meet City requirements. NOTE: The Gity reserYes the right to obtain a full certified copy of any insurance policy or endorsementsrequired. Failure to exercise this right shall not constitute a wá¡ver of the Gity's riltrt tó exercise after theeffective date. Page2 | of2 pages Risk: rev.03.2014 RESOLUTION NO. 201 4-120 A RESOLUTION OF THE LODI CITY COUNCIL AUTHORIZING THE CITY MANAGER TO EXECUTE PROFESSIONAL SERVICES AGREEMENT WITH APOGEE INTERACTIVE, INC. FOR ON-LINE CUSTOMER ENERGY AUDIT APPLICATIONS ryHEREAS, since 2011, Apogee lnteractive, lnc. has developed and implemented various residential and commercial on-line energy audit tools for Lodi Electric Utility (LEU) customers as part of LEU's Public Benefits Program; and WHEREAS, over the past few years, Apogee has improved upon its on-line application by adding special purpose calculators and has experienced an increase in on-line usage; and WHEREAS, these audit tools provide customers with the necessary analysis required to be eligible for rebates under the LEU's energy efficiency rebate programs; and WHEREAS, Apogee is proposing to continue supporting this on-line service for an additional year at a cost not to exceed $24,300 for annual subscriptions to residential, commercial, and special purpose on-line calculators; and WHEREAS, the costs for said services are included in the Public Benefits Program Fiscal Year 2014115 budget. NOW, THEREFORE, BE lT RESOLVED that the Lodi City Council does hereby authorize the City Manager to execute a Professional Services Agreement with Apogee lnteractive, lnc. for on-line customer energy audit applications for an amount not to exceed $24,300, for the period of August 1,2014 through June 30, 2015. Dated: July 16,2014 =========== ======= ======= ==== = ===== ===== ======= == ================= I hereby certify that Resolution No. 2014-120 was passed and adopted by the City Council of the City of Lodi in a regular meeting held July 16,2014, by the following vote: AYES: NOES: ABSENT: COUNCIL MEMBERS - Hansen, Johnson, Mounce, Nakanishi, and Mayor Katzakian COUNCIL MEMBERS - None COUNCIL MEMBERS - None COUNCIL MEMBERS - None Vl'*l-'r,t--' KAR CK ABSTAIN 2014-120 Admin ive Secretary