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Attachment 2Agreement for Consultant Services Page 1 of 6 ATTACHMENT 2 AGREEMENT FOR CONSULTANT SERVICES THIS AGREEMENT is made and entered into on ______________(DATE) by and between TOWN OF LOS GATOS, a California municipal corporation, (“Town”) and SYSERCO ENERGY SOLUTIONS , (“Consultant”), whose address is 215 Fourier Ave., Fremont, CA 94539. This Agreement is made with reference to the following facts. I. RECITALS 1.1 The Town desire to engage Consultant to p erform an Investment Grade Audit of six (6) Town facilities: Town Hall, Library, Police Operations Building, Corporation Yard, Adult Recreation Center, and the Youth Recreation Center. The results of this audit will be used to establish a final construction project to implement energy efficiency upgrades in the HVAC, lighting, and plumbing building systems. 1.2 The Consultant represents and affirms that it is willing to perform the desired work pursuant to this Agreement. 1.3 Consultant warrants it possesses the distinct professional skills, qualificati ons, experience, and resources necessary to timely perform the services described in this Agreement. Consultant acknowledges Town has relied upon these warranties to retain Consultant. II. AGREEMENTS 2.1 Scope of Services . Consultant shall provide services as described in that certain Letter of Intent to Contract and Approval to Proceed with Detailed Engineering and Final Project Development sent to the Town on June 8, 2018 , which is hereby incorporated by reference and a ttached as Exhibit A. 2.2 Term and Time of Performance . This contract will remain in effect from June 19, 2018 to June 19, 2019 . 2.3 Compliance with Laws . The Consultant shall comply with all applicable laws, codes, ordinances, and regulations of governing federal, state and local laws. Consultant represents and warrants to Town that it has all licenses, permits, qualifications and approvals of whatsoever nature which are legally required for Consultant to practice its profession. Consultant shal l maintain a Town of Los Gatos business license pursuant to Chapter 14 of the Code of the Town of Los Gatos. 2.4 Sole Responsibility . Consultant shall be responsible for employing or engaging all persons necessary to perform the services under this Agree ment. 2.5 Information/Report Handling . All documents furnished to Consultant by the Town and all reports and supportive data prepared by the Consultant under this Agreement are the Town’s property and shall be delivered to the Town upon the completion of Consultant's services or at the Town's written request. All reports, information, data, and exhibits Agreement for Consultant Services Page 2 of 6 prepared or assembled by Consultant in connection with the performance of its services pursuant to this Agreement are confidential until released by the Town to the public, and the Consultant shall not make any of these documents or information available to any individual or organization not employed by the Consultant or the Town without the written consent of the Town before such release. The Town acknow ledges that the reports to be prepared by the Consultant pursuant to this Agreement are for the purpose of evaluating a defined project, and Town's use of the information contained in the reports prepared by the Consultant in connection with other projects shall be solely at Town's risk, unless Consultant expressly consents to such use in writing. Town further agrees that it will not appropriate any methodology or technique of Consultant which is and has been confirmed in writing by Consultant to be a trad e secret of Consultant. 2.6 Compensation . Compensation for Consultant's professional services shall not exceed $34,750 , inclusive of all costs. Payment shall be based upon Town approval of each task. 2.7 Billing . Billing shall be monthly by invoice w ithin thirty (30) days of the rendering of the service and shall be accompanied by a detailed explanation of the work performed by whom at what rate and on what date. Also, plans, specifications, documents or other pertinent materials shall be submitted f or Town review, even if only in partial or draft form. Payment shall be net thirty (30) days. All invoices and statements to the Town shall be addressed as follows: Invoices: Town of Los Gatos Attn: Accounts Payable P.O. Box 655 Los Gatos, CA 95031 -0655 2.8 Availability of Records . Consultant shall maintain the records supporting this billing for not less than three years following completion of the work under this Agreement. Consultant shall make these records available to authorized pe rsonnel of the Town at the Consultant's offices during business hours upon written request of the Town. 2.9 Assignability and Subcontracting . The services to be performed under this Agreement are unique and personal to the Consultant. No portion of thes e services shall be assigned or subcontracted without the written consent of the Town. 2.10 Independent Contractor . It is understood that the Consultant, in the performance of the work and services agreed to be performed, shall act as and be an independe nt contractor and not an agent or employee of the Town. As an independent contractor he/she shall not obtain any rights to retirement benefits or other benefits which accrue to Town employee(s). With prior written consent, the Consultant may perform some obligations under this Agreement by subcontracting but may not delegate ultimate responsibility for performance or assign or transfer interests under this Agreement. Consultant agrees to testify in any litigation brought regarding the subject of the work to be performed under this Agreement. Consultant shall be compensated for its costs and expenses in preparing for, traveling to, and testifying in such matters at its then current hourly rates of compensation, unless such litigation is brought by Consulta nt or is based on allegations of Consultant's negligent performance or wrongdoing. Agreement for Consultant Services Page 3 of 6 2.11 Conflict of Interest . Consultant understands that its professional responsibilities are solely to the Town. The Consultant does not have and shall not obtain any ho lding or interest within the Town of Los Gatos. Consultant has no business holdings or agreements with any individual member of the Staff or management of the Town or its representatives nor shall it enter into any such holdings or agreements. In additio n, Consultant warrants that it does not presently have and shall not acquire any direct or indirect interest adverse to those of the Town in the subject of this Agreement, and it shall immediately disassociate itself from such an interest, should it discov er it has done so and shall, at the Town's sole discretion, divest itself of such interest. Consultant shall not knowingly and shall take reasonable steps to ensure that it does not employ a person having such an interest in this performance of this Agree ment. If after employment of a person, Consultant discovers it has employed a person with a direct or indirect interest that would conflict with its performance of this Agreement, Consultant shall promptly notify Town of this employment relationship, and shall, at the Town's sole discretion, sever any such employment relationship. 2.12 Equal Employment Opportunity . Consultant warrants that it is an equal opportunity employer and shall comply with applicable regulations governing equal employment opportun ity. Neither Consultant nor its subcontractors do and neither shall discriminate against persons employed or seeking employment with them on the basis of age, sex, color, race, marital status, sexual orientation, ancestry, physical or mental disability, n ational origin, religion, or medical condition, unless based upon a bona fide occupational qualification pursuant to the California Fair Employment & Housing Act. III. INSURANCE AND INDEMNIFICATION 3.1 Minimum Scope of Insurance: i. Consultant agrees to have and maintain, for the duration of the contract, General Liability insurance policies insuring him/her and his/her firm to an amount not less than: one million dollars ($1,000,000) combined single limit per occurrence for bodily injury, personal injur y and property damage. ii. Consultant agrees to have and maintain for the duration of the contract, an Automobile Liability insurance policy ensuring him/her and his/her staff to an amount not less than one million dollars ($1,000,000) combined single lim it per accident for bodily injury and property damage. iii. Consultant shall provide to the Town all certificates of insurance, with original endorsements effecting coverage. Consultant agrees that all certificates and endorsements are to be received and approved by the Town before work commences. iv. Consultant agrees to have and maintain, for the duration of the contract, professional liability insurance in amounts not less than $1,000,000 which is sufficient to insure Consultant for professional error s or omissions in the performance of the particular scope of work under this agreement. Agreement for Consultant Services Page 4 of 6 General Liability: i. The Town, its officers, officials, employees and volunteers are to be covered as insured as respects: liability arising out of activities perfo rmed by or on behalf of the Consultant; products and completed operations of Consultant, premises owned or used by the Consultant. This requirement does not apply to the professional liability insurance required for professional errors and omissions. ii. The Consultant's insurance coverage shall be primary insurance as respects the Town, its officers, officials, employees and volunteers. Any insurance or self -insurances maintained by the Town, its officers, officials, employees or volunteers shall be exc ess of the Consultant's insurance and shall not contribute with it. iii. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the Town, its officers, officials, employees or volunteers. iv. The Consultant's insurance shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the limits of the insurer's liability. 3.2 All Coverages . Each insurance policy required in this item shall be endorsed to state th at coverage shall not be suspended, voided, cancelled, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the Town. Current certification of such insurance sh all be kept on file at all times during the term of this agreement with the Town Clerk. 3.3 Workers’ Compensation . In addition to these policies, Consultant shall have and maintain Workers' Compensation insurance as required by California law and shall provide evidence of such policy to the Town before beginning services under this Agreement. Further, Consultant shall ensure that all subcontractors employed by Consultant provide the required Workers' Compensation insurance for their respective employees. 3.4 Indemnification . The Consultant shall save, keep, hold harmless and indemnify and defend the Town its officers, agent, employees and volunteers from all damages, liabilities, penalties, costs, or expenses in law or equity that may at any time arise or be set up because of damages to property or personal injury received by reason of, or in the course of performing work which may be occasioned by a willful or negligent act or omissions of the Consultant, or any of the Consultant's officers, employees, or agents or any subconsultant. IV. GENERAL TERMS 4.1 Waiver . No failure on the part of either party to exercise any right or remedy hereunder shall operate as a waiver of any other right or remedy that party may have hereunder, nor does waiver of a br each or default under this Agreement constitute a continuing waiver of a subsequent breach of the same or any other provision of this Agreement. Agreement for Consultant Services Page 5 of 6 4.2 Governing Law . This Agreement, regardless of where executed, shall be governed by and construed to the l aws of the State of California. Venue for any action regarding this Agreement shall be in the Superior Court of the County of Santa Clara. 4.3 Termination of Agreement . The Town and the Consultant shall have the right to terminate this agreement with or without cause by giving not less than fifteen days (15) written notice of termination. In the event of termination, the Consultant shall deliver to the Town all plans, files, documents, reports, performed to date by the Consultant. In the event of such termination, Town shall pay Consultant an amount that bears the same ratio to the maximum contract price as the work delivered to the Town bears to completed services contemplated under this Agreement, unless such termination is made for cause, in which event, compensation, if any, shall be adjusted in light of the par ticular facts and circumstances involved in such termination. 4.4 Amendment . No modification, waiver, mutual termination, or amendment of this Agreement is effective unless made in writing and signed by the Town and the Consultant. 4.5 Disputes . In an y dispute over any aspect of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, including costs of appeal. 4.6 Notices . Any notice required to be given shall be deemed to be duly and properly given if mailed postage pre paid, and addressed to: Town of Los Gatos Syserco Energy Solutions Attn: Town Clerk Attn: Scott Meinzen 110 E. Main Street 215 Fourier Ave nue Los Gatos, CA 95030 Fremont, CA 94539 or personally delivered to Consultant to such address or such other address as Consultant designates in writing to Town. 4.7 Order of Precedence . In the event of any conflict, contradiction, or ambiguity between the terms and conditions of this Agreement in respect of the Products or Services and any attachments to this Agreement, then the terms and conditions of this Agreement shall prevail over attachments or other writings. 4.8 Entire Agreement . This Agreement, including all Exhibits, constitutes the complete and exclusive statement of the Agreement between t he Town and Consultant. No terms, conditions, understandings or agreements purporting to modify or vary this Agreement, unless hereafter made in writing and signed by the party to be bound, shall be binding on either party. Agreement for Consultant Services Page 6 of 6 IN WITNESS WHEREOF, the To wn and Consultant have executed this Agreement. Town of Los Gatos by: Consultant, by: Laurel Prevetti Name Town Manager Title Recommended by: Matt Morley Director of Parks and Public Works Approved as to Form: Robert Schultz Town Attorney EXHIBIT A June 8 , 2018 Jim Harb in Town of Los Gatos 41 Miles Ave. Los Gatos, CA 95030 Subject: Letter of Intent to Contract and Approval to Proceed with Detailed Engineering and Final Project Development Dear Jim , The Town of Los Gatos intends to enter into a Design -Build Agreement for an Energy Services Project (“Project”) wit h Syserco ’s Energy Solutions Division (“Syserco ”) to improve its infrastructur e and operational efficiencies . The Project will be comprised of a variety of proposed Facility Improvement Measures (“FIM”s) that will be assessed through Detailed Engineering and Final Project Development (“Work”). The Work will evaluate the following systems: Heating, Ventilation and Air Conditioning (HVAC), Lighting and Lighting Controls, Building Automation and Controls, Building Envelope, Plug Load Management , Appliances, Water, and Utility Supplier options. The Work will be performed at the following location(s): Building Police Operations Los Gatos Civic Center Los Gatos Public Library LGS Recreation - Youth Center LGS Recreation - Adult Center Los Gatos Corporation Yard The intent of th e Work is to refine the final contract for the Project’s Scope of Work, Utility and O perational savings, Implementation Schedule and Final Project Construction Costs . Objectives To determine Final projects, the following objectives shall be included : • Calculated savings shall exceed total project costs by a minimum of fifteen percent within the financing period , inclusive of audit costs . • Projects shall not significantly increase maintenance and operations cost to the Town. • Operational impacts during project implementation shall allow for ongoing uninterrupted provision of Town service s. • The Town shall have the right to approve all assumptions made within cost and savings calculations. Syserco may provide savings guarantees at no cost to the Town to address questionable assumptions. • Projects shall include Town specified warranty covera ge. EXHIBIT A Project Funding PG&E’s On -Bill Financing (OBF ) program is being considered as the funding source for this project. This Town aims to maximize this funding opportunity, and reserves the right to consider alternative funding mechanisms as approved by the Town . A CTIONS TO BE P ERFORMED : Syserco will complete a directed Project Development and Design/ E ngineering effort necessary for the development of a contract for an Energy Services Project. In order for SES to complete the Work, the Town of Los Gatos shall provide Syserco with the following (if not already provided): • 3 -year history of utility bills or a signed form authorizing SYSERCO to act as an Agent for the Town of Los Gatos and receive the data directly from the Utility Provider. • Records of Maintenance and Operational costs and copies of existing Service Contracts for maintenance performed by third -parties. • Reasonable a ccess to facilities and design drawings The Work is a very collaborative effort . The Work is intended to form the basis of a Final Proposal and contracting documents. Therefore, the Town of Los Gatos shall also : • A ssign a main Point of Contact for the Work : ___Jim Harbin _____________ and provide reasonable access to Key Stakeholders : o Public Works Point of Contact:_____Matt Morley _________________ o Legal Point of Contact:______ Robert Schultz ___________________ o Town Executive Point of Contact:____Laurel Prevetti _____________ o Town Financial Point of Contact: ____Stephen Conway _________ In accordance with CA GC 4217, a ll reasonable Design, E ngineering and Project Development costs incurred by SYSERCO will be included in the F inal Project Costs and payback calculations, which shall be funded by PG&E OBF program , or other funding program(s), as approved by District. F EE : If S yserco is unable to produce a Final Project that meets the above Objectives, then it shall receive no payment for its efforts. However, if Syserco presents a Final Project that meets the Objectives, and the parties do not execute an Agreement for the implementation of the recommended facility improvement measures within forty -five (45 ) days thereafter, then the Town of L os Gatos agrees to pay Syserco a B reak Fee of $34,750.00 All associated information related to the Work will become the property of the Town of Los Gatos upon final receipt of payment. EXHIBIT A T IMELINE AND M ILESTONES : S yserco will initiate this W ork immed iately upon acceptance of this Letter of I ntent. Formal progress review meetings will be conducted regularly throughout the process of the Work. During these review meetings, S yserco will recommend measures based on preliminary analysis, while the Town of Los Gatos will provide final direction regarding acceptance of the recommended measures in the Scope of Work of the Project . The goal of these review meetings is to focus engineering / project development efforts, budgeting, and savi ngs on those FIMs t hat have a high probability for implementation. The following are proposed key milestone dates: • 06/20 /2018 - Authorization to begin Work • 06/25 /2018 - Kick -Off Meeting with Key Stakeholders • 07/17 /2018 - 30% Design Review Meeting • 07/20 /2018 - Client Review Comments and Direction Given on Measures • 08/07 /2018 - 60% Design Review Meeting • 08/10 /2018 - Client Review Comments and Direction Given on Measures • 08/21 /2018 - 90% Design Review Meeting • 08/24 /2018 - Client Review Comments and Direction Given on Measures • 09/05 /2018 - SYSERCO to Deliver Final Energy Services Proposal • 09/18 /2018 - Energy Services Proposal Authorized and Work Started Please signify acceptance of this Letter of Intent by signing below. Letter of Intent Authoriz ed by: Laurel Prevetti Town Manager Town of Los Gatos Scott Meinzen VP and General Manager Syserco Energy Solutions, Inc. _________________________________ ______________________________ Signature Signature Date:__________________________ Date:__________________________