HomeMy WebLinkAbout2013/10/01 Item 03 . - -�- •°�-=�-�. CITY COUNCIL
'�� � AGENDA STATEMENT
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OCTOBER 1. 2013. Item �v
ITEA1 TITLE: RESOLUTIOIV OF THE CITY COiJNCIL OF THE CITY OF
CHULA VISTA APPROVII�'G �\' AGREEMENT BET�4rEEN
THE CITY AlVD UTILITY COST �4ANAGEME\iT, LLC. TO
PROVIDE UTILITl' INVOICE REVIE�V SERVICES
SUBNIITTED BY: FIi�'ANCE DIRECTOR/TREASURER�"{ � �"���
REVIE«'ED BI': CITl' MANAGER (� ��S
ASSIST.Si\'TCITY ?�4ANAGER � ��
4/STHS VOTE: YES � NO �
SU`n'Il1'IAR1'
In A4ay 20li; the City of Chula \'ista issued a Request for Proposals (RFP) for uuliq�
invoice review services. After a thorough selection process, the Ciry has selected Utility
Cost Management (UCl� to provide these sen�ices.
E\�'IRONAIE\�TAL REVIE��'
The Environmentai Revie��� Coordinator has revie�i�ed the proposed action for compliance
with the California Environmental Quality Act (CEQA) and has determined that the
acti��ity is not a "Project�' as defined under Section 1�378(b)(4) of the�State CEQA;
therefore; pursuant to Section 15060(c)(S) of the State CEQA Guidelines the activity is
not subject to CEQA. Thus, no environmental revie��� is necessary.
RECOAZA4ENDATION
That City Council adopt the resolution. �
BOARDS/C01'I�4ISSION RECONIA'IENDATION
Not applicable.
DISCUSSION
ln January of 2012; the Cit�� Council endorsed the Cih� Manaeer's Fiscal Recovery and
Pro�ess Plan. This plan built upon the successes of the City`s Fiscal Health Plan;
includine ne�v components necessary to achie��e fiscal recovery beyond a single budeet
cvcle. A kev focus of both the Fiscal Health Plan and the Fiscal Reco��en� and Proeress
Plan is the reduction of expenses through the implementation of cost saving measures.
- \�jith this ooal in mind, the Finance Department is activelv pursuine opportunities to
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OCTOBER ], 2013; Item �
Pa�e 2 of 4
With this goal in mind; the Finance Department is actively pursuing opportunities to
reduce expenditures while minimizing service impacts to tl�e communit��. One area
identified thus far is the Cit��'s utility eapenditures. Contracting with a firm that
specializes in utility invoice review services is recommended to reduce the City's utility
expenditures with minimal impacts to City staff.
On May 6, 20li, the City of Chula Vista issued a Request for Proposals (RFP) for utility
invoice review services. Invoices to be reviewed included gas, electric and water utilities;
telecommunication utilities were not included. The desired review was to consider relevant
regulations to identify billing errors, ensuring the City's utility invoices reflect current
regulations and interpretive decisions.
The City has an exceptional history of implementing energy saving programs, reducing the
City`s environmental impact while also generating utility cost savines. Conservation and
Enerey staff continue their outstanding work to reduce the Citys utility consumption; no
review of operational and/or capital programs to reduce energy consumption is included in
this revie�v.
In accordance with Municipal Code �2.56.]]0(c), the RFP was advertised in the Star I�'ews,
posted on the City's Planet Bids website, as well as sent out directly to three firms that had
been identified as potential bidders. The City received three responsive bids. All bids
received induded a fee proposal based on sharing the refunds a��d savings generated by the
utiliry invoice review work. Each proposal also included a term over which future savings
generated by the work would continue to be shared. The responsive bids and proposed fee
schedules aze summarized in Table 1 below.
Table 1
� � �
, . .
� � � � �
Cost Control Associates, Inc. 45% 36.00
Optimum Cost Recovery 40% 24.00
Utili �Cost Mana ement UCM 42% 36.00
A three person selection committee comprised of Finance Department staff reviewed the bid
responses to assess each finn's qualifications to provide the services detailed in the RFP.
Based upon the results of the RFP selection process, staff recommends contracting with
Utility Cost Management (iJCM) to provide utility invoice review services. UCM presented
the best proposal, demonstrating an ability to provide the required services while
minimizing expense to the City.
UCM will review the Cit�-'s gas, electric and water invoices lo determine whether they are
being billed appropriately, aud w�hether they liave been billed appropriately in the past. This
analysis wi11 include, but will not be limited to, investigation of billing calculations,
inapplicable rate schedules, proper metering of services, optional rates, applicability of taaes
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OCTOBER 1. 20li. Item .3
Pase 3 of�
and surcharees, meter multipliers; and the applicability of al] rules and rewlations affecting
billine. Follo�vine this anal��sis, UCA� ��ill then take all necessarv steps to implement
recommended chanaes and collect refunds for past overchazges, includins meetine N�th
utilin� compan�• personnel. UCM ���ill then acti��elti� ��=ork «ith the utilit�� companv to
implement their recommended chanees. In some circumstances, and only N�ith the City`s
permission, UCM ma�� appeal utilit}�decisions to the Califomia Public Utilip� Commission
(CPUC).
Because of their eatensive kno���ledee and experience ��ith utility invoice audits in the
state of California. contract a���azd to UCM is recommended.
DECISION D�AKER CONFLICT
Staff has re��ie�i�ed the decision contemplated b�� this action and has determined that it is
not site specific and consequentiv, the �00-foot rule found in _Califomia Code of
Rewlations section 18704.2(a)(1), is not applicable to this decision.
CURRENT 1'EAR FISCAL I14PACT
All contract costs �cill be fully offset by utility e�penditure sa��ings. These costs; as well
as the net positive impact of the Cit��, ���ill ��ar�� based upon the value of the savines
generated by the consultant`s ��rork. Staff will retum to Council to request a budget
transfer benveen the utilitv and supplies & ser��ices budget categories for the current
fiscal ��ear once the project is unden��ay and contract costs can be reasonabl�� estimated.
UC\4 ���ill be paid 43% of all refunds and current year sa��inas generated by their utilit��
im�oice revie�v ser�ices. UCI�4 ���ili not be paid for savings that result from a reduction in
the amount of utilitv usaQe.
Table 2 belo« illustrates the potential annuai net cost sa��ings to the Citq for each I% in
utilirv im oice savines senerated bv UCA4's ���ork.
Table 2
i .
FY 2012-13 Actual Expenditures*
General Fund � 2.44�.226 $ 1.928.807 � 4,374,033
\'on General Fund � 202.335 S 2.063.036 � 2.26�.374
All Funds Total S 2,6d7,56d . S 3,991,8�33 S 6,639,407
For Each 1% Savines
General Fund S 24.4�2 S 19.285 S 43Jd0
Non General Fund S 2.023 S 20.630 � 22.6�4
All Funds Total S 26,476 S 39,918 S 66,394
liCNi Fee (42%) S 11,120 S 16,766 S 27,886
Cih�'s Share (58%) S 15,356 S 23,153 S 38,509
'Unaudited
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OCTOBER 1, 2013, ]tem 3
Page 4 of 4
ONGOING FISCAL I_MPACT
All contract costs will be offset by utility expenditure savings. These costs, as well as the
net positive impact to the City, will vary based upon the value of the savings generated
by tt�e consultant�s ��ork.
UCM will be paid 42% of all savings generated by their work, for a term of 36 months
from the implementation of the savings (savings reilected on City's utility bitl).
Following expiration of the 36-month savings share term the City will enjoy tlie full
benefit of the utilit}� expenditure savings generated, with no share allocated to UCM.
ATTACHMENTS
1. Agreement beri��een the City and Utility Cost Management, LLC, to Provide
Utilit}�Invoice Review Services.
Prepared by: Tiffany Al/en, Treasury Manager, Frnance Departmeirt
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COUT'CIL RESOLUTION NO.
RESOLUTION OF THE CITl' COL�'CIL OF THE CITY OF
CHliLA \'ISTA APPRO�'II�'G AN .AGREE�4E?�'T BET\4%EEN
THE CITY A\TD liTILITY COST \4ANAGE\4E\iT. LLC. TO
PROV"IDE UTILITI' I\�VOICE REVIE\4' SERVICES
�'�'HEREAS, the Cit�� of Chula Vista Finance Director/ Treasurer is responsible for
auditin2 and approvine all pa��ment of in��oices by the Cit��, including determinine the
correctness of claims. demands or charees: and
\4'HEREAS, the City desires to contract �i�ith a �endor to provide utilitv invoice review
sen�ices: and
�'�%HEREAS; utilitv invoice revie��� sen�ices are to be pro��ided for all ��ater, eas and
electricitv accounts for �i�hich the Cit�� is receivine utilitv sen�ices. includine identifi�ine the basis
for, and taking steps to obtain, any refunds, credits or fumre savinas on the City's utility
accounts: and
���HEREAS; on A-iay 6, 2013, the Citv of Chula Vista issued a Request for Proposals
(RFP) for utilit�� in��oice revie��� sen ices: and
14'IIEREAS, the RFP �ias advertised in the Star \re���s; posted on the Cih`s Planet Bids
website and distributed directly to three firms previoush� identified as potential bidders for utility
invoice review services: and
\VHEREAS, the City recei��ed three responsive bids; and
�VHEREAS, Cit}� staff conducted a comprehensive re��ie��� to determine the best qualified
firm to provide utilirv im�oice re��ie�c sen�ices: and
1�'T-IEREAS, Utilitv Cost A4anaeement, LLC (UC�4) has demonstrated the abilih� and the
espenise to pro��ide utility invoice revie�� services in accordance ���ith the scope �of ���ork
requirements of the RFP; and
�\'HEREAS, UCM has submitted a proposal to provide utilit�� im�oice re�ie��� ser��ices in
exchange for a fee of fom-rivo percent (42%) of the utilit�� invoice sa��ines eenerated b�� their
re��iew. to continue for a period of 36-months from the date the savinss first appears on the
Cit��'s utilit� invoice: and y
� R%HEREAS. UCA4 �rill receive no fee for utilitv invoice savings generated b�r reductions
in utiliri usase: and
\�'HEREAS, in consideration of their extensive knowledse and esperience ���ith utilitv
invoice audits throushout the state of Califomia, contract a���ard to UCM is recommended.
1:Wttomev�FINAL RESOS AND ORDI\'A\CES�2013\I O Ol 13�RES0- Finance-Utilin]m�oice Sres.doc
9/17/20li 8:07 A,�1
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Resolution No.
Pa�e 2
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chula
Vista, that it approves the Agrgement between the City of Chula Vista and Utility Cost
Management; LLC, to Provide Utility Invoice Review Services, in the form presented, as may
have been modified by the Council prior to its approval and with such minor modifications as
may be required or approved by the City Attorney, a copy of which shall be kept on file in the
Office of the City Clerk, and authorizes and directs the Mayor to execute same.
Presented by Approved as to form by
` , (vV v
,
�
Maria Kachadoorian Glen . oog'� s
Finance Director/Treasurer �jj,�6�'ty Aj orney
1�� /
J:44trorne}�\F[NAL RESOS AND ORDITANCES�2013U 0 Ol 13�RES0-Finance- Utility Invoice Svcs.doc
9/17/2013 8:07 AA4
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THE ATTACHED AGREEI��I�TT HAS BEE\T REVIE�ITED
Ai\TD APPROVED AS TO FORM BY THE CITl'
ATTORI�TEY'S OFFICE AND «jILL BE
FORMALLY SIGNED UPON APPROVAL BI'
THE CITY COUI�TCIL
i �
�. , ,;l; l� /�"
Glen R�Googins
�nCity ttorne}'
Dated: �l I�' � I�
AGREEMENT
BETRrEEI�T
THE CITY OF CHUI:A VISTA AND
UTILITY COST MAI�'AGEMEI`TT LLC
TO PROVIDE UTILITY II`TVOICE REVIE�T�� SERVICES
3-7
Agreement between
City of Chula Vista
and
Utilih� Cost Management LLC �
To Provide Utility Invoice Review Services
� This agreement (Aereement), effective , is between the City�-related
entity whose name and business form is indicated on Exhibit A, Paragraph 2, (City), and the
entity �a�hose name, business form; place of business and telephone numbers are indicated on
Exhibit A; Paraeraphs 4 throu�h 6, (Consultant), and is made with reference to the followine
facts:
RECITALS
��%H�REAS; the Citv of Chula Vista Finance Director/Treasurer is responsible for
auditing and approving all payment of im�oices by tl�e City, including determining the
correctuess of claims, demands or cl�arges; and
WI-IEREAS; the Cit}� desires to contract with a vendor lo provide utility invoice re��ie���
services: and
WNEREAS, this Agreement involves the performance of utility invoice review services
for all N�ater, 2as and electricity accounts for which the City is receiving utilit}� services,
indudin� identifying the basis for, and taking steps to obtain, any refunds, credits or future
savings on the City`s utility accounts; and
���HEREAS, Consultant H�arrants and represents that it is experienced and staffed in a
� manner such that it can deli��er the services required of Consultant to City i� accordance with the
time frames and the terms and conditions of this Agreernent. �
� �End of Recitals. Nest Page Starts Obligatory� Pro��isions.]
Paee 1
TNn Pnrn�A�reemen�Benveert U�e Cin•nf Cliuln 6isrn n�M Urifin�C�cLAM�uneenren�LLC tn Provide Urilin�D�voicc Reriew Servires. �
O
OBLICATORI'PROVISIO\S PAGES
NO\\'. THEREFORE. for ��aluable consideration the Cin and Consultant do hereb� mutualh�
aEree as follo��s:
All of the Recitals above are incorporated into this Agreement bv this reference.
ARTICLE I. CO\SliLTA\T'S OBLIGATIONS
A. General
l. General Duties. Consultant shall perform all of the semices described on Eshibit A,
Paraaraph 7 (General Duties).
2. Scope of \��ork and Schedule. In performin� and deli�erins the General Duties;
Consultant shall also perform thz senices, and deli�er to Cit�� the "Deliverables'
described in Exhibit A, Paragraph 8; entitled "Scope of \Vork and Schedule_' accordino
to; and ���ithin the time frames set fonh in E�hibit A, Pazagraph 8: time bein� of the
essence of this agreement. The General Duties and the �vork and Deli��erables required in
� the Scope of Work and Schedule shall be referred to as the "Defined Services" Failure to
complete the Defined Serrices by the times indicated does not. except at the option of the
Cit��. terminate this .4sreement.
a. Reductions in Scope oj td'a�k City ma�� independenti��, or upon request from
Consultant from time to time, reduce the Defined Services to be performed b�� the
Consultant under this Agreement. lipon doine so, Cit�� and Consultant an_ree to meet
in good faith and confer for the purpose of negotiating a corresponding reduction in
the compznsation associated ��ith the reduction.
b. Addi�ronal Sen�ices. In addition to performins the Defined Sen�ices, City mav
require Consultant to perform additional consulting sen�ices related to the Defined
Ser�ices (.Additional Services), and upon doins so in ���iting; if thev aze ���ithin the
scope of sen-ices offered by Consultant Consultant shall perform same on a time and
materials basis at the rates set forth in .the "Rate Schedule" in Exhibit A;
Paragraph 10(C), unless a separate fised fee is othenvise agreed upon. All
compensation for.Additional Services shall be paid monthh� as billed.
3. Standard of Care. The Consultant espressly ���arranu that the �vork to be performed
pursuant to this Agreement; whether Defined Ser��ices or Additional Services, shall be
perforn�ed in accordance nith the standard of care ordinaril�� e�ercised b�� members of
the profession currenth� practicine under similar conditions and in similaz locations.
a. A�o Fi�prver- of Standm�d of Care. ��'here appro�al b} Cit�� is required; it is understood
to be conceptual appro��al onh� and does not reliere thz Consultant of responsibilitv
for comph�ing ���ith all la��s; codes, industry standards; and liabilin for damages
caused b�� neelieent acts; errors; omissions; noncompliance Nith industn� standards;
or the �villful misconduct of the Consuitant or its subcontractors.
Pase 2
Tw�o Pam�Agreemen�een.•een rl�e Cin•ajCl+u(a i�c(o anA U!iliR'l�SL.(�ann�entenl LLCro P�oride Utflin'Im�oire Rn•iek•Sen�itu. �
B. Application of La�+�s. Should a federal or state law pre-empt a local la�v, or regulation, the
Consultant must comply with the federa] or state ]aw and implementing regulations. No
� provision of this Agreement requires the Consultant to observe or enforce compliance with
anp provision, perform any other act; or do any otl�er thing in contravention of federal, state,
territorial, or local law; regulation, or ordinance. If compliance with any provision of this
Agreement violates or would require the Consultant to violate any law, the Consultant agrees
to notify Cit}� immediat�ely in writine. Sl�ould this occur, the City and the Consultant agree
that the�� ���ill make appropriate arru�gements to proceed with or, if necessary; amend or
tenninate this Agreement, or portions of it; eapeditiously.
1. Subcontractors. Consultant agrees to take a}�propriate measures necessary to ensure that
all participants utilized by tl�e Consultant to complete its obligations under this
AgreemenY. such as subcoutractors, comply with all applicable laws, regulations,
ordinances, and policies, N�hether federal; state, or l�ocal, affectine Project
implementation. In addition, if a subcontractor is expected to fulfill any responsibilities of
the Consultant under this Agreement; the Consultant shall ensure that the subcontractor
carries out [he Consultant's responsibilities as set fortl� in this Agreement.
C. Insurance
l. GeneraL Consultant must procure and maintain, during the period of performance of this
Aereement and for t�a-elve months afrer completion; policies of insurance from insurance
companies to protect against claims for injuries to persons or damages to property that
may arise from or in connection with the performance of the work uvder this Agreement
and the results of that ��ork by the Consultant, his agents, representatives, employees or
subcontractors; and provide documentation of saine prior to commencement of«�ork.
2. Minimum Scooe of Insurance. Coverage must be at least as broad as:
a. CGL. Insurance Services Office Co�umercial General Liability coverage (occurrence
Porm CG0001).
b. Auro. Insurance Sen�ices Office Form Number CA 0001 covering Automobile
Liability, Code 1 (any auto).
a I4�C. Workers' Compensation insurance as required by the Stace of California and
Employers Liabiliry Insurance. �
� d. E&O. Professional Liability or Errors & Omissions Liabilitp insurance appropriate to
the Consultanrs profession. Architects' and Engineers' coverage is to be endorsed to
include contractual liability.
Page 3
T�uo Pnm'A7ree�ne��1 Benreen 1he Cilr nf CGuln bism nnd Ulilill'g¢v�l�rmgemerr!LLCln Prnvide Utilin'/mmrce Revie�v Servicec.
3. \4inimum Limits of Insurance. Consultant must maintain limits no less than those
induded in the table belo�ti:
i. General Liabilitv: 51:000,000 per occurrence for bodil�- injun�; personal injur��.
(Includine (includin� death), and property damage. If Commercial General
operations, Liabilitv insurance ���ith a eeneral aeeregate limit is used; either
products and the Qeneral aggregate limit must appl}� separateh to this
completed Projecdlocation or the �eneral agereoate limit must be t��ice the
operations, as required occurrence limit.
a licable)
ii. �utomobile 51;000;000 per accident for bodil�• injurv: includin� death, and
Liabilit�: propertydamage.
iii. \i%orkers Statutorv
Compensation 51;000;000 each accident -
Emplo��er's 51,000;000 disease-polic� limit
Liabiliri�: S I.000_000 disease-each em lo��ee
i�. Professional 51.000.000 each occurrence
Liabilit� or Errors
R Omissions
Liabilin:
4. Deductibles and Self-Insured Retentions. Anv deductibles or self-insured retentions must
be declared to and approved b�� the Cit��. At the option of the Citv; either the insurer will
reduce or eliminate such deductibles or self-insured retentions as thev penain to the Cit��_
its officers; officials; employees and volunteers; or the Consultant will pro��ide a financial
guarantee satisfactorti� to the Cih� euaranteeing pa��ment of losses and related
im estieations. claim administration_ and defense expenses.
�. Other Insurancz Provisions. The aeneral ]iabilit��. automobile liabilit��. and �ehere
appropriate_ the ���orker`s compensation policies are to contain, or be endorsed to contain,
the follo��'ine pro��isions:
a. :4ddrtionul Luureds. Citv of Chula Vista; its officers; officials, emplo}�ees; aeents;
and �olunteers are to be named as additional insureds «ith respect to all policies of
insurance, indudina those with respect to liabilit�� arising out of automobiles o��red;
leased, hired or borro��°ed b} or on behalf of the Consultant, "�here applicable, and.
with respect to liabilit�� arising out of���ork or operations performed b� or on behalf of
the Consultant; includine providine materials, parts or equipment fumished in
connection ��'ith such ���ork or operations. The �eneral liabilit� additional insured
co��eraee must be provided in the form of an endorsement to the Consultant's
insurance using ISO CG ?O10 (11/8�) or its equivalent. Specificall��_ the endorsement
must not esclude Products/Completed Operations co��eraQe.
PaQe 4
Tu•o�nm�Agreernen�Ben.�een the Circ of Chulo 1•iqn nnA Urilin���5J�11{nn�emem LLC ta P.oeide Urilin�/nroice Rerie�.•Sen•icer. �
b. Primar�� Insurance. The Consultant's General Liability insurance coveraQe must be
primar}� insurance as it pertains lo the City; its officers; officials; employees; agents, �
and voluuteers. Any insurance or self-insurance maintained by the City, its officers,
officials. employees, or volunteers is wl�olly separate from the insurance of the
Consultant and in no way relieves the Consultant from its responsibility to provide
insurance.
c. CanceRation. The insurance policies7equired by this Agreement shall not be canceled
� � b1' either part}�, escept afrer thirty da}�s` prior written notice to the Cit�� b}' certified
mail, return receipt requested. The ���ords "will endeavor" and "but failure to mail
such notice shall impose no obligation or liability of any kind upon the company, its
agents, or representatives" shall be deleted from all certifcates.
d. Actit-e Neglrgence. Coverage shall not extend to any indemnity coverage for the
active neeligence of the additional insureds in any case where an agreement to
indeinnifY the additional insured would be ii�valid under Subdivision (b) of Section .
2782 of the Civil Code. �
e.� [d�aii-er of Sa�brogaria�. Consultant's insw'er will provide a Waiver of Subrogation in �
favor of the City for each required policy providing coverage for the term required by
tl�is Aereement. �
6. Claims Fonns. If General Liability, Pollution ai�d/or Asbestos Pollution Liability and/or
Errors & Omissions co��erage are �vritten on a claims-made Porm:
a. Retro Dure. The "Retro Date" must be sl�own, and ivust be before the date of the
Agreement or the beginning of tl�e work required by tl�e Agreement.
b. A9ai��te�aa�ace and E�-iderzce. Insurance must�be maintained and evidence of insurance
must be pro��ided for at least five years after completion of tl�e ���ork required by the
� Agreement.
� a Caizcellalron. If co��eraoe is canceled or non-renewed; and not replaced�with another
claims-made policy fomi ���ith a "Retro Date" prior to the effective date of the
Aereement, the Consultant roust purcl�ase "extended reporting" coverage for a
minimum of five vears after completion of ilie work required by the A�reement.
d. Copies. A cop�� of tl�e claims reporting requirements must be submitted to tl�e City
for revie���. �
Pa�e �
Two Pm�N A�reeme�A Bern�ecn Nir Citr of Chuln I�.t1n m�d(Ililiq�gQ,q(�vk�napernertl LLC m Prm�ide UIilih�/m�oice RerieN�Semice.c y
7. Acceotabilitr of Insurzrs. Insurance is to be placed ��ith licensed insurers admitted to
transact business i� the State of California ��°ith a current A.?�4. Best's ratine of no less
than A V. If insurance is placed ��ith a surplus lines insurzr; insurer must be listed on the
State of Califomia List of Elisible Surplus Lines Insurers (LESLI) ��=ith a current A.�4.
Besrs rating of no less than A ?i. Ezception ma� be made for the State Compensation
Fund �ti�hen not specificall�� rated.
S. \%erification of Co��eraoe. Consultant shall furnish the Citr ��ith orieinal certificates and
amendatory endorsements effectine coveraee required b} Section I.C, of this Aereement.
The endorsements should be on insurance industn forms, provided those endorsements
or policies conform to the requirements of this AQreement. .�11 certificates and
endorsements are to be recei�ed and appro�ed by the Cin before �rork commences. The
Citv reser��es the right to require, at am time, complete. certified copies of all required
insurance policies; including endorsements e��idencino the coveraee required by these
specifications.
9. Subcontractors. Consultant must include all subconsultants as insureds under its policies
or fumish separate certificates and endorsements for each subconsultant All coverage for
subconsultants is subject to all of the requirements included in these specifications.
10. \'ot a Limitation of Other Oblieations. Insurance pro�isions under this Article shall not
be construed to limit the Consultant`s oblieations under this Aereement. indudine
Indemnit��. �
D. Securitv for Performance
1. Performance Bond. In the event that Eshibit A. at Paraeraph 18, indicates the need for
Considtant to provide a Performance Bond (indicated bv a check mark in the
parenthetical space immediatel�� precedine t�e subpazagraph entided "Performance
Bond"); then Consultant shall pro�ide to the Cit�� a performance bond, in the amount
indicated at Exhibit A, Paraeraph 1 S; in the form prescribed b�� the Cin� and b�� such
sureties which are authorized to transact such business in the State of Califomia; listed as
appro��ed b�� the United States Depanment of Treasun� Circular �70,
httn://������`.fms.treas.eov/c�70, and ��hose undernritine limitation is sufficient to issue
bonds in the amount required bv the Aereement; and N=hich also satisfi� the requirements
stated in Section 99�.660 of the Code of Civii Procedure; except as pro��ided other�vise
b�� laws or reeulations. All bonds signed bv an aeent must be accompanied by a certified
copy of such aeent`s authoritv to act Suret� companies must be dulv licensed or
authorized in the jurisdiction in which the Project is located to issue bonds for the limits
so required. Fomi must be satisfactory to the Risk ?�4anager or Citv.
2. Letter of Credit. In the e��ent that E�hibit .�, at Paraerapli 18; indicates the need for
Consultant to pro��ide a Letter of Credit (indicated bv a check mark in the parenthetical
space immediatelv precedine the subpazaoraph entitled "Letter of Credit"); then
Consultant shall provide to the Cit}� an irrerocable letter of credit callable b�� the Citv at
iu unfettered discretion b�= submitting to the bank a letter: siened b�� the Cirv �9ana2er,
Pa�e 6
Two Pnm�A;reemenr Benceen Uie Cin•of Chula Disro and Gti/i¢gautl3na�emenr LLC ro P�ocide Urifin�/nraice Rn�iex�Sen•iccs. �
statina that the Consultant is in breach of the ternls of this Agreement. The letter of
credit sllall be issued b�� a bank; and be in a form and amount satisfactor}� to the Risk
A4anaeer or Cit�� Attorne�� wllich amount is indicated in the space adjacent to the term;
"Letter of Credit;" in Eahibit A, Paragraph 18.
3. Other Securitv. In the e��ent that Eahibit A, at Paragraph 18, indicates the need for
Consultant to pro��ide security other than a Performance Bond or a Letter of Credit
(indicated by a check mark in the parenthetical space immediately preceding the
subparagraph entitled "Other Security�), then Consultant shall provide to the City such
other securit}� therein listed in a form and amou��t satisfactory to the Risk Manager or
City Attorney.
E. Business License. Consultant agrees to obtain a business license from the City and to
otherwise compl�v ���ith Title � of the Chula Vista Municipal Code.
ARTICLE II. CITY OBLIGATIONS
A. Consultation and Cooperation. Cit}� shall regularly consult the Consultant for the purpose
of reviewing the progress of the Defined Services and Schedule, and to provide direction and
guidance to achieve the objectives of this Agreement. The City shall allow Consulta�t access
to its office facilities, files and records. as deemed necessary and appropriate by the City,
throughout the term of this Agreement. In additiou, City agrees to provide the materials
� identified at Exhibit A, Paragraph 9; ���ith the understauding that delay in the provision of
those materials beyond thirty da}�s aHer authorization to proceed, shall consYitute a basis for
tl�ejustifiable delay in the Consultant's performance.
B. Compensation.
1. Follo���ina Receipt of Billina. Upon receipt of a properly prepared bill from Consultant,
submitted to the City as indicated in Ehhibit A, Paragraph 17, but in no event more
frequently than monthly; on the day of the period indicated in Exhibit A; Paragraph 17,
Cit�� shall compensate Consultant for all services rendered by Consultant according to the
tenns and conditions set fonh in Exhibit A; Paragraph 10; adjacent to tl�e go��eming
compensation relationship indicated by a "checkmark" next to the appropriate
arrangement; subject to the requirements for retention set Porth in Paraeraph 18 of
Eahibit A; and shall compensate Consultant for out of pocket expenses as provided in
Exhibit A, Para�raph 11.
2. Supportine ]nfbrmation. Any billing submitted by Consultant shall contain sufficient
infonnation as to the propriety of die billing, includii�g propedy executed payrolls, time .
records, invoices, contracts, or vouchers describing in detail the i�ature of the charges to
the Project in order to permit the City to evaluate that the amount due and payable is
proper, and such billing shall specifically contain the City's account number indicated on
Exl�ibit A, Paragraph 17(C) to be charged upon making such payment.
Page 7
Te�n Porn�Agreen+ent Henceen U�e Citr of G�u/n IQ.qn m�d U�ilin��q,y/f 14nngement LLC m Prnrirle Uti(itr/nvnice Reriex�Servicec.
3. Esclusions. In determinins the amount of the compensation Cin Nill e�;dude am� cost:
]) incurred prior ro the effecti��e date of this Asreemenr or 3) arisine out o�or related to
the errors. omissions. neelisence or acts of �villful misconduct of the Consultant. its
agents, employees; or subcontractors.
a. Er•ra�s aizd Omissioiu. In the event that the Consultant's neolisence. errors. or
omissions in the performance of�tiork under this Aoreement results in ezpense to
Citv ereater than ���ould have resulted if thzre ��ere no such nealieence, errors.
omissions; Consultant shall reimburse Cit�� for am� additional expenses incurred
b� the Cit�. Nothins in this paraeraph is intended to limit Ciri's rishts under other
pro�isions of this .Aereement.
4. Pa��ment \'ot Final Appro��al. The Consultant understands and agrees that pa��ment to the
Consultant for an�� Project cost does not constimte a City final decision about whether
ihat cost is allo�vable and eligible for paymen� under the Project and does not constimte a
��ai<<er of am- �iolation of Consultant of the terms of the Agreement. The Consultant
ackno���ledees that Citv ���ill not make a final determination about the elieibilitv of au��
cost until the final paymen[ has been made on the Project or the results of an audit of the
Project requested br the Citv has been completed. ��hichever occurs latest If Citv
detemtines that the Consultant is not entitled to receivz am� portion of the compensation
due or paid, City ��ill notif} the Consultant in ���riting; statine its reasons. The Consultant
� a_rees that Project closeout �ti�ill not alter the Consultant's responsibilin� to retum am
funds due Cit�� as a result of later refunds: corrections; or other similar vansactions; nor
���ill Project closeout alter the rieht of Cit� to disallo�v costs and reco��er funds provided
for the Project on the basis of a later audit or other revie�v.
a. Consu(tant's Obligation to Pav. lipon notification to the Consultant that specific
amounts are owed to Cin, �vhether for e�cess pa�-ments or disallo«°ed costs: the
Consultant agrees to remit to Cit�� promptl�� the amounts o�ved, includine applicable
interest.
ARTICLE III. ETHICS
A. Financial Interests of Consultant
1. Consultant is Desionated as an FPPC Filer. If Consultant is desienated on E�hibit .�.
Para_raph 14, as an "FPPC filer;" Consultant is deemed to be a "Consultanr` for the
purposes of the Political Reform Act conflict of interest and disclosure provisions. and
shall repon economic interests to the Cin° Clerk on the required Statement of Economic
Interests_ in such reporting categories as are specified in Para=raph ]�} of E�hibit A, or if
none are specified; then as determined bv the Citv Attome��.
Z. \o Participation in Decision. Regardless of��fiether Consultant is designated as an FPPC
Filer; Consultant shal] not make, or participate in mal:ino or in am� «�av attempt to use
Consultant's position to influence a eo�emmental decision in «hich Consultant kno���s or
Paee S
Two Pam•Agreemeiu BeM•een t4e Cin�of Clnda I�Fstn nnAC4i(in•�'�r�na„emcirt LLC m Proeide Utilin'/nvoire Rn•iew'Sen�ices y
has reason to I:no��� Consultant has a financial interest other than the compensation
promised bv this Agreement.
3. Search to Detern�ine Economic Interests. Regardless of wl�ether Consultant is designated
as an FPPC Filer; Consultant ���anants and represents that Consultant has diligentiv
condacted a search and inventory of Consultants economic interests, as the term is used
in the regulations promulgated by tl�e Pair Political Practices Commission; and has
detern�ined that Consultant does not to the best of Consultant's kno�adedse; have an
economic interest which ���ould conflict ��ith ConsultanYs duties under this Agreement.
4. Promise Not to Acquire Conflictine Interests. Regardless of whether Consultant is
desi�nated as an FPPC Filer; Consultant further warrants and represents that Consultant �
will not acquire, obtain, or assume an ec000mic interest during tl�e tern� of this
Agreement which �n�ould constitute a conflict of interest as prohibited by the Fair Political
Practices Act. � -
5. �Durv to Advise of Conflictin� Interests. Regardless of wl�ether Consultant is designated �
as an FPPC Filer; Consultant furiher warrants and represents that Consultant will
immediately adrise the Cit�� Attomey if Consultant learns of an econorriic interest of
� ConsultanPs that may result in a conflict of interest for tl�e purpose of the Fair Political
Practices Act, and regulations promulgated thereunder.
6. Specific Warranties Aeainst Economic Interests. Consultant warcants, represents and
� a�rees that:
a. Neither Consultant; nor Consultant's immediate family members, nor Consultant's
employees or agents (Consultant Associates) presently have any interest, directly or
indirectly, ���hatsoever in any property which may be tl�e subject matter of the Defined
Services, or in an}� propert�� Nithin 2 radial miles from the exterior boundaries of anv
property ���hich ma�� be the subject matter of the Defined Serviees, (Prohibited
Interest), otl�er than as listed in Exhibit A, Paragraph 14. �
b. l��o promise of future employ�ment, remuneration, consideration, gratuit}� or other
re�vard or gain has been made to Consultant or Consultant Associates in connection
witl� Consultant's perfonnance of tlus Agreement �Consultant promises to advise City
of any such promise that ma�� be made during the Term of this A�reement, or for
h�el��e months thereafter. �
a Considtant Associates shall not acquire any such Prohibited Interest within the Term
of this Agreement, or for twelve months afier the expiration of this Agreement,
except with tl�e �vritten permissio�� of City.
d.. Consultant ma�� not conduct or solicit any business for any party to this Agreement;
ar for anv third part}� that ma}� be in conflict with Coitsultant's responsibilities under
illis Agreement, except ���ith the�a�ritten permission of City.
Paee 9
Two Pnrlr A�reemen[Belw�eeu U�e Cill'rf Clrulo his(n nnd Ufiliq'gpylll8nngeittertl LLC(n Proride U6/i�'[�mnice Rerinv Sen�iceti. V .
I\%. LIQliIDATED DA�4�GES
A. .4pplication of Section. The provisions of this section apph� if a Liquidated Damaees Rate
is pro�ided in E�hibit .A. Paragraph li.
1. Estimatine Damases. It is acl:no�vledeed b�� both parties that time is of the essence in the
completion of this Agreement. It is difficult to estimate the amount of damaees resultino
from dela�� in pzrformance. The parties ha��e used their judgment to arrive at a reasonable
amount to compensate for delav.
2. �mount of Penaltv. Failure to complete the Defined Sen�ices ���i�hin the allotted time
period specified in this A�reement shall result in the follo���ins penaln�: For each
consecuti��e calendar dav in ezcess of the time specified for the completion of the
respecti�e «ork assisnment or Deli��erable; the Consultant shall pa�� to the Citv, or have
��ithheld from monies due, the sum of Liquidated Dama�es Rate pro��ided in Exhibit A;
Paragraph li (Liquidated Damaees Rate).
3. Request for E�tension of Time. If the performance of an� act required of Consultant is
dirzcth pre�ented or dela�ed bv reason of strikes, lockouts, labor disputes; unusual
go�emmental dela��s, acts of God; fire, floods; epidemics; freieht embareoes, or other
causes be��ond the reasonable control of the Consultant. as determined b�� the Cit��.
Consultant shall be excused from performing that act for the period of time equal to the
period of time of the prevention or dela��. In the event Consultant claims the e�istence of
such a dela�'. the Consultant shall notif� the Cit�'s Contract Administrator, or designee, in
«Titins of that fact «�ithin ten calendaz davs after the beeinnina of an�� such claimed
dzla�.yEstensions of time ���ill not be eranted for dela��s to minor portions of���ork unless
it can be sho«n that such delavs did or n ill dela�� the proeress of the �ti�ork.
ARTICLE V. I�'DE��'tFIC�TIO\'
A. Defense, Indemnih, and Hold Harmless.
l. General Requirement. E�cept for liability for Design Professional Services co�=ered
under Artide V., Section .A.2., Consultant shall defend, indemnif��; protect and hold
harmless the Cin�; its elected and appointed officers; agents and employees. from and
a�ainst am� and all daims. demands. causes of action; costs; ezpenses, liabilitv, loss:
dama�e or injur��; in la�� or equit��; to propem or persons, includine �vrongful death; in
am� manner arising out of or incident to anv alleeed acts; omissions, neolieence, or
�villful misconduct of Consultant, its officials, officers; emplo��ees, agents, and
contractors. arisine ou[ of or in connection with the performance of the Defined Sen�ices
or this Aereement. This indemnitv pro�ision does not include am= claims, damages,
liabilitv, costs and e�penses (indudino �rithout limitations. attornevs fees) arisins from
the sole negligence; active neelieence or �villful misconduct of the Cin_ its officers,
employees. Also co�ered is liabilit�- arisin� from, connected �ti�ith; caused bv or daimed
to be caused b� the active or passive nesligent acts or omissions of the Cit��; its agents;
Paee 10
Two Pnm'A^reemenr Benveen tlie Cin�ofCl�u/a 1 rstn nnd Urilin�g¢v f/�iia�emenl LLC m Pro�•ide Ulilill•lrn•nice Re��inr Sen�ices. y
officers; or emplo��ees N�hich may be in combination N�ith the active or passi��e neeligent
acts or omissions of the Consultant; its employees, agents or off cers, or any third party.
2. Desien Proressional Services. If Consultant provides design professional services; as
defined bv Califomia Civil Code section 2782.5, as may be amended from time to time;
Consultant sl�all defe��d; indemnify and hold the Cit��, its officials, officers, employees,
vol�mteers. and aeents free and harmless from any and all claims, demands; causes of
action; costs, espenses; liability; loss, damage or injury, in law or equity, to propert�� or
� persons. i��cluding ���rongful death, in any manner arising out of, pertaining to, or relati�g
to the negligence, reckless��ess, or w�illful misconduct of Consultant, its o�eials, officers;
emplo}�ees; agents; consultants, and contractors arising out of or in connection ��itl� the �
performance of Consultant's ser��ices. Consultant's duty to defend; indemnify; and hold
hannless shall not include am� claims or liabilities arising from the sole negligence; active
nealigence or ���illful misconduct of the City, its agents, offcers or employees. This
section in no way alters; affects or modifies the Consultai�t's obligations and duties under
this Aereement.
3. Costs of Defeuse and Award. Included in the obligations in Sections A.l and A.2, above,
is the Consultant's obligation to defend, at Consultant's own cost, e�pense and risk; any
and all suits, actions or other legal proceedings, tl�at may be brought or instituted against
the City, its directors; officials; officers, employees, agents and/or volunteers, subject to
� the limitations in Sections A.1. and A?. Consultant shall pay and satisfy any judgment,
a�n-ard or decree that may be rendered against Cit}� or its directors; officials; officers,
employees, agents and/or volunteers, for any and all related legal expenses and costs
incurred by each of them, subject to tl�e limitations in Sections A.l. and A.2.
4. ]nsuranc�e Proceeds. Cousultanrs obligation to indenmify shall not be restricted to
� insurance proceeds; if any, received by ilie City, .its directors, officials, ofFcers;
employees, agents, and/or volw�teers. �
�. Declarations. Consultant's obligations under Article V shall not be limited by any prior
or subsequent declaration by the Consultant.
6. Enforcement Costs. Consultant agrees to pay any and all costs City incurs enforcing the
indemniry and defense pro��isions set forth in Article V.
7. Survival. Consultant's oblieations under Article V shall survive the termination of this
Aereement. �
ARTICLE VI. TERMINATION OF AGRG�M�NT
A. Termination for Cause. If, through an�� cause, Consultant shall fail to fulfill in a timely and
proper manner Consultant's obligations under this Agreement, or if Consultant shall violate
� any of the covena��ts, agreements or stipulations of this Agreement, City shall have the ri�ht
to terminate this Agreemeut by eiving written notice to Consultant of such termination and
specifl'�»g the effecti��e date tl�ereof at least five (�) days before the effective date of such
Paae 11
Twn Pnrn�A;recmen!Benreen 1Ge Cifi nf Chuln I7sm nnA Ulilil��gq�(�lgmgenrert(LLC rn Prnvide Utilin•hmnice Rerrew Servires. y
termination. In that e��ent. all finished or unfinished documents. data, studies. survzvs.
dra���ings; maps; repons and other materials prepared b� Consultant shall. at the option of the .
Cit��; become the property of the Cit��, and Consultant shall be entitled to receive just and
equitable compensation; in an amount not to e�ceed that pa��able under this Aereement and
less anv damages caused City b�� Consultant's breach, for an�� work satisfactorilv completed
on such documents and other materials up to the effecti��e date of\'otice of Termination.
B. Termination of Agreement for Conrenience of Cih�. Cih� mav terminate this Agreement
at anv time and for am� reason; b�� eiving specific ���itten notice to Consultant oF such
termination and specifying the effecti��e date thereo£ at least thirty (30) da��s before the
effective date of such termination. In that event. all finished and unfinished documents and
other materials described hereinabove shall; at the option of the Citv; become Cit�'s sole and
ezclusive propert�. If the A�reement is.terminated by Citv as pro��ided in this para2raph;
Consultant'shali be entitled to receive just and equitable compensation; in an amount not to
e�ceed that pa��able under this .Agreement, for any satisfacton� ���ork completed on such
documents and other materials to the effective date of such termination. Consultant hereb�°
espressly ���ai��es anv and all claims for damages or compensation arisin2 under this
Aereement ezcept as set forth in this seccion.
.ARTICLE VII. RECORD RETE\'TIO\' AND ACCESS
A. Record Retention. Durine the course of the Project and for three (3) yeazs following
completion; tNe Consultant agrees to maintain, intact and readilv accessible; all data,
documents; reports; records. contracts; and supporting materials relating to the Project as Cit�
ma<< require.
B. Access to Records of Consultant and Subcontractors. The Consultant aerees to permit.
and require its subcontractors to permit Cin� or its authorized representatives, upon request;
to inspect all Project ��ork, materials. pa��rolls, znd other data, and to audit the books:
records; and accounts of the Contractor and its subcontractors pertaining to the Project.
C. Project Closeout. The Consultant_agrees that Project closeout does not alter the reporting
and record retention requirements of this Agreement. _
ARTICLE V'III. PROJECT CO\�iPLETIO\', AUDIT; AND CLOSEOliT
A. Project Completion. \�%ithin ninety (90) calendar da�s follo��ina Project completion or
termination by City, Consultant aerees to submit a final certification of Project expenses and
audit reports; as applicable.
B. Audit of Consultants. Consultant agrees to perform financial and compliance audits the
Citv ma�� require. The Consultant also aerees to obtain anv other audits required b� Citv.
Consultant agrees that Project closeout will not alter Consultant's audit responsibilities. Audit
costs are allo��able Project costs.
Paae 12
Two Pnm�.4grren+enf Ben.'een the Citc of Chu(a Vitm and Uli(i!1'�C9'�1{�n�emeat LLC rn Prm•ide UtilifP/nruice Re��ie�.�Sen•ica. y
C. Project Closeout. Project closeout occurs ���hen City notifies the Consultant that City has
closed the Project; and either for�vards the final pa��ment or acknowledges that the Consultant
has remitted the proper refund. The Consultant agrees that Project closeout by City does not
in��alidate an}� continuing requirements imposed by the Agreement or any unmet
requirements set forth in a written notification from City
ARTICL� IX. MISCELLANEOUS PROVISIONS
A. Assignability. The services of Consultant are personal to the City, and Consultant shall not
assign am� interest iu this A�reement, and shall not fransfer any interest in the same(«�hether
by assienment or notation), �n�ithout piior written consent oP City.
1. Limited Consent City hereby consents to the assignment of the portions of the Defined
Se�vices identified ii� Exhibit A, Paragraph 16 to the subconsultants identified as
� "Permitted Subconsultants.'� - �
B. Ownership, Publication, Reproduction and Use of Material. All reports; studies.
infom�ation; data; statistics; forn�s; designs; plans; procedures, systems and any other
materials or propenies produced under this Agreeme��t shall be the sole and esclusive
propert}� of Cit}�. No such materials or properties produced ii� whole or in part under this
Agreement shall be subject to private use, copyrigl�ts ar patent rights by Consultant in the
Uiiited States or in any other country witl�ouf the express written consent of City. City shall �
have unrestricted authority to publish, disclose (except as may be limited by the provisions of
the Public Records Act); distribute, and otherwise use, copyright or patent, in N�hole or in
part, an}� such reports, studies, data, statistics, forms or other materials or properties produced
under this Agreement.
� C. Independent Contractor. City is interested only in the results obtained and Consultant shall
perfonn as an independent contractor with sole. control of Che manner and means of
performing the services required under this Agreement. City maintains the right onlv to
reject or accept Consultant's H�ork products. Consultant and any of the Consultant's agents,
emplo}�ees or representatives are; for all purposes under this Agreement, independent
contractors and shall not be deemed to be employees of City, and none of them shall be
entitled to any benefits to N�hich City employees are entitled including but not limited to,
overtime, retire�»ent benefits, worker's compensation benefts, injury leave or other leave
benefits. Therefore, City ��ill not withhold state or federal income taa, social security tax or
any other pa}�roll tax, and Consulta»t shall be solely responsible for the payment of same and
sl�all l�old the Citv hannless with regard to tl�em. �
1. Actions on Behalf of Citv. Eacept as City ma}� specify in writiilg, Consultant shall have
no authorit��; express or implied, to act on�bel�alf of City in any capacity �n�hatsoever, as
an agent or_other�+�ise. Consultant shal] have no authority, eapress or implied, to bind
Cit�� or its members, agents, or employees, to an}� obligation whatsoever, unless expressl}�
pro��ided in this Agreement. �
Page 13
Two Prvry,'.A�reenrerv Benneen!!re Gih'of CIurU� Vivin nnd Ulilil���qy4�l�uegemer�/LLC lo ProriAe Ulilitr Ltnnice Reriew Sernices.
2. �o Obli�ations to Third Panies. In connection with the Project Consultant asrees and
shall require that its aeents. employees; subcontractors aeree that Cin= shall not be
responsible for anv obligations or liabilities to anv third pam�_ including its aoerits;
emplo�ees, subcontracturs; or other person or entit�� that is not a pam� to this Aereement.
�'ot��ithstandine that Cit� mav ha��e concurred in or appro��ed anv solicitation;
subasreement, or third part�� contract at an�= tier; Cin� shall ha��e no oblieation or liabilit��
to am person or entity not a part�� to this Aareement.
D. Administrati��e Claims Requirements and Procedures. \'o suit or arbitration shall be
brousht arisins out of this Aereement; against City unless a claim has first been presented in
���ritine and filed ��ith Cit�� and acted upon b� Cin� in accordance ��ith the procedures set
fonh in Chapter 1.34 of the Chula V"ista \4unicipal Code; as same mar from time to time be
amended, the pro��isions of ���hicli are incorporated bv this reference as if fullti� set fonh
herein; and such policies and procedures used b� Citv in the implementation of same. lipon
request b� Cit��; Consultant shall meet and confer in eood faith �vith Cin for the purpose of
resol��ing anr dispute over the terms of this Aareement.
E. Administration of Contract. Each pam� designates the individuals (Contract
.Administrators) indicated on Exhibit A, Paraeraph 12; as that pam's contract administrator
�vho is authorized b�� thz party to represent it in the routine administration of this A�reement.
F. Term. This Aareement shall terminate when the panies have complied �eith all executon�
provisions hereof.
G. .attorne��'s Fees. Should a dispute arisine out of this Agreement result in litigation, it is
a�reed that the prevailing pany shall be entitled to a judgment against the other for an
amount equal to reasonable attome��s' Fees and court costs incurred. The "pre�ailing partv'
shall be deemed to be the pam� ��fio is a���arded substantiall�� the relief souoht.
H. Statement of Costs. In the event that Consultant prepares a report or document, or
par[icipates in the preparation of a report or document in performin2 the Defined Ser��ices;
Consultant shall include, or cause the inclusion of, in the report or document, a statement of
the numbers and cost in dollar amounts of all contracts and subcontracts relatine to the
preparation of the report or document.
I. Consultant is Real Estate Broker and/or Salesman. If the box on Exhibit A; Paragraph 1�
is marked; the Consultant and/or its principals is/are licensed ���ith the State of Califomia or
some other state as a real estate broker or salesperson. Othen��ise; Consultant represents that
neither Consultant; nor its principals are licensed real estate brokers or salespersons.
J. \'otices. All notices, demands or requests provided for or permitted to be aiven pursuant to
this Aereement must be in H�ritine. All notices; demands and requests to be sent to any pam•
shall be deemed to have been properh� �i��en or sen�ed if personall�� ser��ed or deposited in
the United States maiL addressed to such pam, postage prepaid, reeistered or certified; �+-ith
remm receipt requested, at the addresses identified in this Aereement as the places of
business for each of the desienated parties.
Pa�e 14
Tr•o Paqv iigreemenr Ben.•ern 1fie Cin'nf Chula �'isla nnd U!i/iO'gn�2l9nagemenr LGC rn Pmride Uri(in�/m�oire Reriex•Sen•ices. �
K. Infegration. This Agreement together with any other �a�itten document referred to or
contemplated in it, embodti� the entire Agreement and understanding between the parties
relating to the subject matter hereof. Neitl�er tl�is Agreement nor any provision of it may be
amended, modified; «�aived or dischareed e�cept by an instrument in writine executed b�� the
part�� aeainst �ihich enforcement of such amendment; waiver or discharge is sou�ht.
L. Capacih- of Parties. Each signatory and party to Ulis Agreement warrants and represents to
tl�e other party� that it has legal authority and capacity and direction from its principal to enter
into tliis Aereement, and that all necessary resolutions or other actions have been taken so as
to enable it to enter into this Agreement �
M. Go��ernin; La«�/Venue. This Agreement shall be governed by and construed in accordance
�vith the la���s of the State of California. Any action arising under or relatina to this
Agreement shall be brought only in the federal or sYate courts located in San Diego Count}�,
State of California, and if applicable, the City of Chula Vista, or as close thereto as possible.
. Venue for this Agreement, and performance under it, shall be the City of Chula Vista.
(End of page. l�'ext page is sign:�ture page.)
Page 1�
Twn Pnrn�Aeremrrertt 8enceen rlie Cit��nfChula I�isln nnd lltilifr�¢6/�lfrmgemei�l LLC In Provide L!(�li1n/m�nice Review Services.
Sipoature Page
to
Agreement beh��een
Cih of Chula Vista and
Utilih� Cost D4anagement LLC
To Provide Utilih Im�oice Revieti�� Services
I\ \l'IT�iESS \4'HEREOF, Cit�� and Consultant ha��e executed this Aereement
indicatin� that thev ha��e read and understood same, and indicate their full and complete consent
to its terms:
Cit�' of Chula Vista
Bv:
Chen�l Cox. A9avor
Attest:
Donna\TOrris. Citv Clerk �
Approved as to form:
Glen R. Goosins. Cit� :�ttorne�
litilit� Cost �4anaaement LLC
Bv: / ;/"�� [`�����
\4ichael I:erkorian
�4anaeina A9ember
Exhibit List to Aareemenr. Ezhibit A
Paee 16
Tr�o Pam�A�reemem Benocen rlre Cin�ojChu(a 14nu ond l/ti/itt'sast'�l�agement LLC ta Procide Uti(in�/m�oire Rn•inv Sen�ices. �
Exhibit A
to
Agreement behceen
Cilv of Chula Vista
and
Utility Cost Management LLC �
� I. Effective Date: Tl�e Agreement shall take effect upon full execution of the Agreement; as of
the effective date stated on paee 1 oFthe .A�reement.
2. City-Related Entit��'
(?C) Citv of Chula Vista; a municipal chartered corporation of the State of Califomia
O The Chula Vista Public Financi»g Authorit��, a -
O The Chula Vista Industrial DevelopmentAuthority, a
( ) Other: , a [insert business form]
(Cit��)
3. Place of Business for Cit��:
City of Chula Vista �
� 276 Fourth A��enue �
Cl�ula Vista. CA 91910 � �
4. Consultant:
Utilit�- Cost�4anagement LLC
5. Business Form of Consultant:
(X) Sole Proprietorship / Limited Liability Company
( ) Partnership
( ) Corporation
6. Place of Business, Teleplione and Fas i��umber of Consultant:
647� N. Palm Avenue. Suite ]OS
Fresno. CA 9�704
Voice Phone: (»9) 261-9230
Pax Phone: (��9) 261-9231
Page 17
Tmo Pnr��A„reameN 6envemi lhe Cin•afCduln Vi.qa nnA Ulililp sns!'�14mpemanl LLC/o Praoide Ufilip'b�voice Review Sen�ires.
7. General Duties:
Sen�ices shall include identifi ine and obtainin� refunds, credits and ongoine savines
opportunities on the Cit��'s �as, electric and ���ater accounts �vithout imposing significant
demands on Cit�� staff.
8. Scope of\1%ork and Schedule:
A. Detailed Scope of\Vork:
l. Fact-Findine
a. Consultant shall eather and orsanize historical billins information on the
utilitv accounts ser��ine Citv. Gas and electricitv billine information �vili
be from Sar� Dieeo Gas & Electric (SDGE) and �vater billine information
is from S��eet���ater Authorit�� (S\�'A). �
b. Consultant shall utilize a "Customer InFormation Release Form'
authorizine utilit�� providers to release historical billing data directly to
Consultant.
c. If necessar��. Consultant shall visit Citv locations to sather additional
information.
2. .Analvsis and Report Submission
a. Consultant shall analvze data accumulated in light of applicable tariffs;
stamtes and CPliC decisions. All utilin� accounts shall be re��ie���ed to
determine ��hether thev are beina billed appropriateh. and whether the��
have been billed appropriately in the past. Consultanrs anal��sis shall
include; but not be limited to_ the in��estisation of billino calculations,
inapplicable rate schedules, proper metering of sen ices; optional rates,
applicabilit}° of tazes and surcharges, baseline and lifeline allo���ance
calculations, meter multipliers, and the applicabiliri of all rules and
reeulations affectine billine. � �
' b. Consultant shall submit one or more Findings Reports summarizing the
findings of its revie���, including an explanation of the arounds for all
refund and sa�ings opportunities identified for each utility account;
including calculations of the estimated sa��ings and refunds expected to be
achieved. �
c. Consultant may_ From time to time; supplement or amend the Findines
Repon.
3. Implementation of Chanees and Recover� of Refunds
a. Consultant shall tal:e all necessar�� steps to implement recommended
changes and collect refunds for past overchazees. This includes preparine
documentation supportin_ Consultanrs requests and meetine �+�ith utilit�°
company personnel to discuss each request.
b. Consultant shall neeotiate �vith utility authorities to ensure that refund
calculations are acceptable and are paid to the Citv in a timel�� manner.
c. Consultant shall notif�� Citv of rate changes or refunds approved.
d. �i%ith Cin`s pertnission, Consultant may appeal decisions of utilities to the
Califomia Public Utilities Commission (CPUC).
Paoe 18
TM�o Pnrn�Agreement Bem�een Ure Cin'ojChu/a �%ara mrA Utilin'l�u�m_�emersl L LC m Prm•iGe U!i(in'hmoice Rn•ie�c Serviccs. � .
4. Ongoing Consultation, Measuremet�t and Verification
a. Consulfant shall continue to advise City of new savings opportunities that
arise afrer the initial review;through the tern� of the agreement.
B. Date for Commencement of Consultant Services:
(X)Same as Effective Date of Agreement
( ) Other:
C. Dates or Time Limits for Deli��ery of Deliverables:
Deliverable No. 1: Liitial Findings Report detailing the expected amount of any �
refunds and ongoing savings ideniified, as discussed in 8.A.2.b
above; to be completed within six months of the effective date of
the Agreement. - - �
Deliverable No. 2: Invoices detailing sa��ings achieved, including support for
calculation of savings; to be provided every three months.
D. Date for co�npletion of all Consultant services: This Agreement shall be for a term of
� three years, commencing on the effective date of the Agreement, with two o�e-year
options to extend the� Agreement beyond the initial three-year terni. The City ma}�
eaercise each one-year option at its sole discretion, upon written notification by the Cit}�
D9anager or designee, to Consultant.
9. Materiais Required to be Supplied by Ciry to Consultant:
Cin� shall pro��ide Consultant ���ith a copy of at least one month's utiliry bills for all of Cit}�'s
�+�ater oas and electric utilit}� accounts. Additional information, including but not limited to �
utilitv e�peuditures, utility sen�ice and operatio��s shall be provided upon request of
Consultant. •
10. Compensation:
A. (X)Single Fiaed Fee Arrangement.
For perfonnance of all of the Defined Services by Consultant as herein required; City shall
pay a sii�gle fixed fee in the amounts and at the times or inilesto��es or far the Deliverables set
forth below:
Sinele Fixed Fee Amount: � �
1. Refunds or Credits
a. lf Cit}� receives a refund or credit that was identified in a Findings Report,
as discussed in 8.A.2.b. above, City sl�all pay Consultant 42% of tl�e
amount refunded or credited. The amount of the refund or credit for this
purpose shall include all amounts refunded or credited (includine anv
portion attributable to interest) for any overcharges that ���ere incurred bv
Page 7 9 �
. Twn Vnrq�.A�reenrent Benrcert Ihe Citt'of CH+rin I�iwn and Utilill'3C2512f&iqecmm�!LLC ln Prooide Uiililr/nvoice RerieM�Semires. -
Cit�� prior to the date that the overcharees no longer appeared on City's
utilit�� bill.
b. Consultant shall submit in�oices e�en� three months, «ith pa��ment due
�vithin 30 da��s of the invoice date. Past due amounts ���ill accrue interest
char�es at the rate of 1% per month.
Z. Furure Savines
a. If City obtains future savings that ��ere identified in a Findings Report. the
Cit�� u�ill pa�� Consultant 42% of such future sa��ines that accrue durins a
[hree-��ear sa��ines period. Future savings is the amount b�� which Cit��'s
charees on its utilitv accounts are reduced as a result of a change in the
billing ratz; calculation, method or procedure. Future savines ��ill be
calculated as the difference ben�een the amount Citv ��•as billed on its
utilitv accounts durino the three-�•ear savings period; and the amount that
it would ha��e been billed on its utilih� accounts duri�g the three-}�ear
sa��in�s period if there had been no change in its billine rate; calculation;
method or procedure. The three-vear sa��in�s period beeins on the date that
the chanee in the billine rate, calculation; method or procedure is first
reflected in the Citv`s utilit�� bill. and ends three vears thereafrer.
b. Consultant shall submit invoices ever�� three months for pa��ment based on
future sa�inas as the� accrue. ln��oices submitted shall verifi� that future
sa��ines have been realized b�• the Cin� and the amount of the furure
savines. Pavment shall be due «ithin 30 da��s of the imoice date. Past
due amounts �rill accrue interest charges at the rate of 1% per month.
c. Compensation under this section �vill not include compensation for future
sa��ines that are (1) the result of a reduction in the amount of utilit�� usaee
by Cit��, or (2) the result of Cin`s utilization of a different utilit�� supplier
that pro��ides lo�ver cost utiliri� ser��ice.
3. Citv's Prior Kno�+ledee of Basis for Refund; Gedit, or Future Savinss
a. Citv is not obli�ated to pa��. Consultant pursuant to this section for an��
refund, credit or furure sa�ines recei��ed bv Cit��; for ���hich City had
submitted to the utilit�� pro��ider a �vritten claim prior to the date of
Consultant's Findings Repor. Ho�ti�e�er, Cit�� is obligated to pa��
Consultant pursuant to this section >��hether or not Cit.� l:ne��� of the basis
for the refund; credit or future savines prior to the date of Consultanrs
Findin�s Repon, and �+�hether or not Cit��'s receipt of the refund; credit or
fumre sa��ines was the result of steps taken by Consultant or others;
includine attome�s.
=}. Effect of Termination �
a. If City terminates this A�reement prior to the term specified in section
S.D., afrer Consultant has sent a Findings Report to Cih�. then Cirv �eill
remain obligated to pa�� Consultani; pursuant to the terms described
herein, for an�� refunds, credits or fumre savin�s that ��ere identified in the
Findines Repon and that are thereafter obtained b�� Cirv. Consultant mav
continue to obtain and revie��� City`s utilin billine and other information
follo���ine termination in order to periodicallv ��erify �ti�hether City has
obtained a refund; credit or furure sa�ings that �vas identified in the
Pase 20
Tw'o Pam'A,�r¢emenl Between the Gn'of Chula 1�cfu nnd Giilin•g�2h,na�emen(LLC m Proride Utilin•Im�oire RecieM•Sen�icec. �
Fit�dings Repori. In the event the Agreement is terminated prior to the
�temi specified in Section 8.D., Consultant shall have the right to obtain
and review Cit��'s utility billing and otl�er infbrmation for a maximum of�
years folloN�ing early termination.
�. Release of Claims Aeainst Consultant
a. Cit}� acl:no���ledges and agrees that Consultant has made no express or
implied representation or warra��ty that it will be successful in identifying
or obtaining any refunds, credits or futare savings on Cih�'s utilim
accounts. Cit�� hereby co��enants not to bring any action for damages
against Co�sultant that is based upon or relates to any failure b}�
� Consultant to identify or obtain refunds, credits or future savings to which
Citv was or is entitled.�
6. If Citv does not obtain am� refunds or credits identified in a Findings Report,
Consultant shall not be entitled to any compensatiou.
Milestone or Event or Deli��erable Amouut or Percent of Fixed Fee
O 1. Interim Monthly Advances. The City shall make interim monthly advances
against the compensation due for each phase on a percenta�e of completion basis for
each gi��en phase such that; at the end of each phase only the eompensation for that
phase has been paid. Any pa}�ments made hereunder shall be considered as interest
fi�ee loans tl�at must be returned to the Ciry if tl�e Phase is not satisfactorily
completed. lf the Pl�ase is satisfactorily completed; the City sltall receive credit
against the compensation due for that phase. The retention amount or percentaee set
forth in Paragraph 19 is to be applied to each interim payment such t6at, at the end of
the pl�ase, the full retention has been held back from the compensation due for that
phase. Percentage of completion of a phase sl�all be assessed in the sole and
unfettered discretion by the Contracts Administrator.designated herein by the City; or
sucl� other person as the City Manager shal] desigvate,but only upon such proof
demanded by the City tl�at has been provided, but in no eventshall such interim
advance payment be made unless the Consultant sllall have represented in ���riting that
said percentage of completion of the phase has been performed b}� the Consultant.
The practice of making interim monthly advanees sl�all not com�ert this agreement to
a time and materials basis ofpa}ment.
B. O Phased Fixed Fee Arrangement.
Por the perforu�ance of each phase or portion of the Defined Seivices by Consultant as are
separatel}� idei�tified below, City shall pay the fixed fee associated with each phase of Services,
in the amounts and at the times or milestones or Deliverables set forth. Consultant shall not
commence Ser��ices under an}� Phase; and shall not be entiiled to tl�e compensation for a Phase,
unless Citv shall haoe issued a notice to proceed Co Consultant as to said Phase.
� Paee 21 �
Two Pnrfn Agreemenl Benueert!he Cil1'of Cheda�I+eln rmd U(iGIP Fn,y'j/LO$mgenie�rlllC tn Prnnide Uri/in��rn�nice Rm�imv Servire.c. y
J
Phase Fee for Said Phase
1. �
2. S
3. �
O 1. Interim \4onthh� Ad�ances. The Cit�- shall make interim monthh• ad��ances
against the compensation due for each phase on a percentaQe of completion basis for
each �i�-en phase such that; at the end of each phase onh the compensation for that
phase has been paid. An}� payments made hereunder shail be considered as interest
free loans that must be remmed to the Citv if the Phase is no� satisfactorilv
completed. If the Phase is satisfactoril�� completed, the Citv shall receive credit
aeainst the compensation due for that phase. The retention amount or percentage set
forth in Paraeraph 18 is to be applied to each interim pa}°ment such that, at the end of .
the phase, the full retention has been held back from the compensation due for that
phase. Pzrcentaoe of completion of a phase shall be assessed in the sole and
unfettered discretion by the Contracts Administrator designated herein b} the Cit��; or
such other person as the Cit�- ManaQer shall designate; but only upon such proof
demanded bv the Cit�� that has been provided; but in no event shall such interim
ad�ance pa}�ment be made unless the Consultant shall have represented in ��Titin� that
said percentage of completion of the phase has been performed b�� the Consultant.
The practice of mal:ing interim monthh� ad��ances shall not co�vert this agreement to
a time and materials basis of pa��ment.
C. ( ) Hourlv Rate Arranoement �
For performance of the Defined Semices b�� Consultant as herein required, City shall pay
Consultant for the productive hours of time spent by Consultant in the performance of said
Services. at the rates or amounts set forth in the Rate.Schedule herein belo�� according to the
follo���in� terms and conditions:
(1) O \ot-to-Exceed Limitation on Time and A4aterials Arransement
Not�iithstanding the expendirure b�� Consultant of time and materials in eacess of said
\-ia�imum Compensation amount; Consultant agrees that Consultant will perform all of
� the Defined Semices herein required of Consultant for S
including all ��Iaterials, and other "reimbursables° (Maaimum Compensation).
(?) O Limitation without Further Authorization on Time and \4aterials :Arranoement
At such time as Consultant shall ha��e incurred time and materials equal to
$ (Authorization Limit); Consultant shall not be entided to
am� additional compensation ��ithout further authorization issued in �ti�riting and approved
b�� the Citv. \iothing herein shal] preclude Consultant from providine additional Services
at Consultant's o��n cost and expense. See Exhibit B for�rage rates.
Pase 22
Twn Pnm•.4�reemenr Bern�een Uee Citc nfG�ula 12ea and Llrilin•g'n�i�l(�+n�ement LLC rn Proride Utilin•lm•nice Rn•iew Sen�icu. �
O Hourl}� rates may increase by 6% for services rendered after [month], 20_, if dela��
in providing ser��ices is caused by City. �
I 1. Materials Reimbursement Arrangement
For the cost of out of pocket eape�ses incurred by Cousultant in the performance of sen�ices
herein required, Cit}� shall pay Consultant at tl�e rates or amounts set forCh below: .
(X)None, the compensation includes all costs.
Cost or Rate
( ) Reports, not to e�ceed $ � $
( ) Copies, not to exceed � $
( ) Tra��el, not to exceed $ $
( ) Printing; not to ezceed � � �
( ) Postage; not to exceed $ $
� ( ) Delivery; not to exceed $ �
( ) Outside Sen�ices: $
O Oilier Actual Identifable Direct Costs: � $�
� � _ not to exceed $ $
. not to exceed $ $
12. Contract Administrators:
Cit��: Tiffany Allen
Treasun� Manaser
Cit�� of Chula Vista
276 Fourth Aveuue
Chula Vista. CA 91910-2631
(619) 691-5250 ext. 3116
Consultant D9ichael Kerkorian
A4anaging Member
Utilit�� Cost D4anagement LLC
6475 I�'o�-[l� Palm Avenue, Suite ]OS
Fresno; CA 93704
(559) 261-9230
]3. Liquidated Dama�es Rate:
( ) $ per dav.
( ) Other:
Paee 23
T�ao Pnrlr Agrcemeni Benreen dre Citr of Chulrs I�ism aad Utilin�gq,q(3lomgemenl LLC io Prm�iAe Uti/ity Invoinc Revieiu Sernices. . .
14. Statement of Economic Interests, Consultant Reporting Categories; per Conflict of Interest
Code (Chula Vista \4unicipal Code chapter 2.02):
(�)ATOt Applicable. A'ot an FPPC Filer.
( ) FPPC Filer
O CateQon�\io. l. Im estments: sources of income and business interests.
O Categorv Ao. 2. Interests in real propem�.
O Careeorv \'o. 3. In��estments, business positions. interests in real property; and
sources of income subject to the regulator��; permit or licensine authoriri� of the
depanment administering this Agreement.
O Categor�-No. �. Im�estments and business positions in business entities and sources of
income that enea�e in land de��elopment, construction or the.acquisition or sale of
realpropert�.
O Cateeorv No. �. Im estments and business positions in business entities and sources
of income that; ��ithin the past t���o �eazs. have contracted with the City of Chula
Vista or the Cit.'s Rede�elopment Aoenc�� to pro�ide sen�ices, supplies, materials;
machinen� or equipment.
O Category\o. 6. Im zstments and business positions in business entities and sources of
income that, �vithin the past t���o ��ears, ha��e contracted with the depanment
administering this Aereement to pro�°ide services; supplies; materials; machinen� or
equipment. �
O List Consultant Associates interests in real property within 2 radial miles of Project
Propem. if an��:
1�. O Consultant is Real Estate Broker and/or Salesman
16. Pennitted Subconsultants:
\one
Paee 24
Two PorR'.4�reemeu/Buu'eert U�e Cifr ofChu(a�4sln and Uti/iIP gR,5131�na�emenl LLC to Proride U6(in'lm�oice Rn•iew•Sen�ices. y �
l7. Bill Processing:
A. ConsultanPs Billing to be submitted for the following period of time:
( ) Monthly �
( ) Quarterly
(7�)Other: Ever}� three (3) months.
B. Day of the Period for submission of Consultant's Billing:
( ) First of the Month
O 15t1� Dav of each Mont6
� (X) End of the Month
( ) Other: -
C. Cit}'s Account\'umber: 09100-6301
18. Security for Performance
( ) Performance Bo�d; $
( ) Letter of Cr,edit; $
( ) Other Security:
Type:
Amount: $
O Retention. lrthis space is checked, then notwithstanding other provisions to the contrary
requiring the pa��ment of compensation to the Consultant sooner, the City shall be entitled
� to retain, at their option; either tl�e following "Retention.Percentage" or "Retentio❑
� Amounr' until the City determines tl�at the Retention Release Event, listed below,has
occurred:
( ) Retention Percentage:
( ) Retention Amount: �
Retention Release E��ent
O Completion of All Consultant Seivices
( ) Other:
O Other: The Retention Amount ma�� be released on a monthly basis provided that
Consultant has perforn�ed said monthly sen�ices to the sole satisfaction of the
� Assistant City Manager/Director of llevelopment Services or his designee.
Page 2�
T�no Pnrn'Agreen�en/Benoecn Ilre Cilr of Clmla �%ism nrtd Urilifj'gf(,�'(�lromgemer�(Ll C!n Prm�ide U�iGtv[��vnice Havieu�Services. .
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