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HomeMy WebLinkAboutCC Resolution 9531 (Utilities Audit)RESOLUTION NO. 4531 A Resolution Authorizing the Signing of a Contract, Lease or Agreement THE CITY COUNCIL OF THE CITY OF SAN RAFAEL RESOLVES as follows: The MAYOR and CITY CLERK are authorized to execute, on behalf of the City of San Rafael, a contract, lease or agreement with Eauitax (for audit of utilities) a copy of which is hereby attached and by this reference made a part hereof. I, JEANNE M. LEONCINI, Clerk of the City of San Rafael, hereby certify that the foregoing resolution was duly and regularly introduced and adopted at a REGULAR meeting of the City Council of said City held on MONDAY, the 18th day of DECEMBER , 19 95 , by the following vote, to wit: AYES: COUNCILMEMBERS: Cohen, Heller, Phillips, Zappetini & Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None JEAN )S.M.LEONCINI, City Clerk I G I � RI��� AGREEMENT FOR The Audit of Utility Charges This Agreement is made and entered into this 184%-h day of DECEMBER , 1995 , by and between the CITY OF SAN RAFAEL (hereinafter "CITY"), and Equitax (hereinafter "CONTRACTOR"). RECITALS WHEREAS, the CITY wants to make sure that we are paying the lowest rate possible for gas, electricity and water by auditing the basis for the charges; and, WHEREAS, Contractor represents that it has the expertise, experience and willingness to perform said audit, AGREEMENT NOW, THEREFORE, the parties hereby agree as follows: 1. PROJECT COORDINATION. A. CITY. The City Manager shall be the representative of the CITY for all purposes under this Agreement. The Finance Director is hereby designated the PROJECT MANAGER for the CITY, and said PROJECT MANAGER shall supervise all aspects of the progress and execution of this Agreement. B. CONTRACTOR. CONTRACTOR shall assign a single PROJECT DIRECTOR to have overall responsibility for the progress and execution of this Agreement for CONTRACTOR. Steve Cherrv. Proiect Director is hereby designated as the PROJECT DIRECTOR for CONTRACTOR. Should circumstances or conditions subsequent to the execution of this Agreement require a substitute PROJECT DIRECTOR for any reason, the CONTRACTOR shall notify the CITY within ten (10) business days of the substitution. 2. DUTIES OF CONTRACTOR. CONTRACTOR shall perform the duties and provide services as described in Exhibit "A" attached and incorporated herein. 3. DUTIES OF CITY. .CITY shall facilitate the payment of CONTRACTOR for performance under this agreement. CITY shall provide copies of twelve (12) most recent months of bills for their gas, electric and 1 water accounts, and shall cooperate in all reasonable ways with CONTRACTOR in its performance under this agreement. 4. COMPENSATION. For the full performance of the services described herein by CONTRACTOR, CITY shall pay CONTRACTOR a fee, in a manner more particularly set out in Exhibit "A". 5. TERM OF AGREEMENT. CONTRACTOR shall complete performance under this agreement within four (4) months of receipt of bills and execution of agreement. Upon mutual agreement of the parties, and subject to the approval of the PROJECT MANAGER, the term of this Agreement may be extended. 6. TERMINATION A. Cause. Either party may terminate this Agreement for cause upon ten (10) days written notice mailed or personally delivered to the other party, and the notified party's failure to cure or correct the cause of the termination notice, to the reasonable satisfaction of the party giving such notice, within thirty (30) days of the receipt of said notice. B. Effect of Termination. Upon receipt of notice of termination, neither party shall incur additional obligations under any provision of this Agreement without the prior written consent of the other. CONTRACTOR shall be due all fees related to work performed prior to termination. C. Return of Documents. Upon termination and if requested, any and all CITY documents or materials provided to CONTRACTOR and any and all of CONTRACTOR's documents and materials prepared for or relating to the performance of its duties under this Agreement, shall be delivered to CITY as soon as possible, but not later than thirty (30) days after request. 7. OWNERSHIP OF DOCUMENTS. The written documents and materials prepared by the CONTRACTOR in connection with the performance of its duties under this Agreement, shall be the sole property of CITY. CITY may use said property for any purpose, including projects not contemplated by this Agreement.. 8. INSPECTION AND AUDIT. Upon reasonable notice, CONTRACTOR shall make available to CITY, or its agent, for inspection and audit, all documents and materials maintained by CONTRACTOR in connection with its performance of its duties under this Agreement. CONTRACTOR shall 2 fully cooperate with CITY or its agent in any such audit or inspection. 9. ASSIGNABILITY. The parties agree that they shall not assign or transfer any interest in this Agreement nor the performance of any of their respective obligations hereunder, without the prior written consent of the other party, and any attempt to so assign this Agreement or any rights, duties or obligations arising hereunder shall be void and of no effect. 10. INSURANCE. A. During the term of this Agreement, CONTRACTOR shall maintain, at no expense to CITY, the following insurance policies: 1. A comprehensive general liability insurance policy in the minimum amount of one million ($1,000,000) dollars per occurrence for death, bodily injury, personal injury, or property damage; 2. An automobile liability (owned, non -owned, and hired vehicles) insurance policy in the minimum amount of one million ($1,000,000) dollars per occurrence; 3. If any licensed professional performs any of the services required to be performed under this Agreement, a professional liability insurance policy in the minimum amount of one million ($1,000,000) dollars to cover any claims arising out of the CONTRACTOR's performance of services under this Agreement. B. The insurance coverage required of the CONTRACTOR by Section 10. A., shall also meet the following requirements: 1. The insurance shall be primary with respect to any insurance or coverage maintained by CITY and shall not call upon CITY's insurance or coverage for any contribution; 2. Except for professional liability insurance, the insurance policies shall be endorsed for contractual liability and personal injury; 3. Except for professional liability insurance, the insurance policies shall be specifically endorsed to include the CITY, its officers, agents, and employees as additionally named insureds under the policies; 4. CONTRACTOR shall provide to PROJECT MANAGER, (a) Certificates of Insurance evidencing the insurance coverage required herein, and (b) specific endorsements naming CITY, its officers, agents and employees, as additional insureds under the policies; 3 5. The insurance policies shall provide that the insurance carrier shall not cancel, terminate or otherwise modify the terms and conditions of said insurance policies except upon thirty (30) days written notice to CITY's PROJECT MANAGER; 6. If the insurance is written on a Claims Made Form, then, following termination of this Agreement, said insurance coverage shall survive for a period of not less than five years; 7. The insurance policies shall provide for a retroactive date of placement coinciding with the effective date of this Agreement; 8. The insurance shall be approved as to form and sufficiency by PROJECT MANAGER and the City Attorney. C. If it employs any person, CONTRACTOR shall maintain worker's compensation and employer's liability insurance, as required by the State Labor Code and other applicable laws and regulations, and as necessary to protect both CONTRACTOR and CITY against all liability for injuries to CONTRACTOR's officers and employees. D. Any deductibles or self-insured retentions in CONTRACTOR's insurance policies must be declared to and approved by the PROJECT MANAGER and the City Attorney. At CITY's option, the deductibles or self-insured retentions with respect to CITY shall be reduced or eliminated to CITY's satisfaction, or CONTRACTOR shall procure a bond guaranteeing payment of losses and related investigations, claims administration, attorney's fees and defense expenses. 11. INDEMNIFICATION. CONTRACTOR shall indemnify, release, defend and hold harmless CITY, its officers, and employees, against any claim, demand, suit, judgement, loss, liability or expense of any kind, including attorney's fees, arising out of or resulting in any way, in whole or in part, from any acts or omissions, intentional or negligent, of CONTRACTOR or CONTRACTOR's officers, agents and employees in the performance of their duties and obligations under this Agreement. 12. NONDISCRIMINATION. CONTRACTOR shall not discriminate, in any way, against any person on the basis of age, sex, race, color, religion, ancestry, national origin or disability in connection with or related to the performance of its duties and obligations under this Agreement. 13. COMPLIANCE WITH ALL LAWS. H CONTRACTOR shall observe and comply with all applicable federal, state and local laws, ordinances, codes and regulations, in the performance of its duties and obligations under this Agreement. CONTRACTOR shall perform all services under this Agreement in accordance with these laws, ordinances, codes and regulations. CONTRACTOR shall release, defend, indemnify and hold harmless CITY, its officers, agents and employees from any and all damages, liabilities, penalties, fines and all other consequences from any noncompliance or violation of any laws, ordinances, codes or regulations. 14. NO THIRD PARTY BENEFICIARIES. CITY and CONTRACTOR do not intend, by any provision of this Agreement, to create in any third party, any benefit or right owed by one party, under the terms and conditions of this Agreement, to the other party. 15. NOTICES. All notices and other communications required or permitted to be given under -this Agreement, including any notice of change of address, shall be in writing and given by personal delivery, or deposited with the United States Postal Service, postage prepaid, addressed to the parties intended to be notified. Notice shall be deemed given as of the date of personal delivery, or if mailed, upon the date of deposit with the United States Postal Service. Notice shall be given as follows: TO CITY: Mr. Ransom Coleman, Finance Director (Project Director) City of San Rafael 1400 Fifth Avenue P.O. Box 151560 San Rafael, California 944915-1560 TO CONTRACTOR: Steve Cherry, Director - Utilities (Project Director) EQUITAX 90 Great Oaks Boulevard Suite 204 San Jose, California 95119 408/578-7900 (fax) 408/578-7970 16. INDEPENDENT CONTRACTOR. For the purposes, and for the duration, of this Agreement, CONTRACTOR, its officers, agents and employees shall act in the capacity of an Independent Contractor, and not as employees of the CITY. CONTRACTOR and CITY expressly intend and agree that the status of CONTRACTOR, its officers, agents and employees be that of an Independent Contractor and not that of an employee of CITY. G� 17. ENTIRE AGREEMENT -- AMENDMENTS. A. The terms and conditions of this Agreement, all exhibits attached, and all documents expressly incorporated by reference, represent the entire Agreement of the parties with respect to the subject matter of this Agreement. B. This written Agreement shall supersede any and all prior agreements, oral or written, regarding the subject matter between the CONTRACTOR and the CITY. C. No other agreement, promise or statement, written or oral, relating to the subject matter of this Agreement, shall be valid or binding, except by way of a written amendment to this Agreement. D. The terms and conditions of this Agreement shall not be altered or modified except by a written amendment to this Agreement signed by the CONTRACTOR and'the CITY. E. If any conflicts arise between the terms and conditions of this Agreement, and the terms and conditions of the attached exhibits or the documents expressly incorporated by reference, the terms and conditions of this Agreement shall control. 18. SET-OFF AGAINST DEBTS. CONTRACTOR agrees that CITY may deduct from any payment due to CONTRACTOR under this Agreement, any monies which CONTRACTOR owes CITY under any ordinance, agreement, contract or resolution for any unpaid taxes, fees, licenses, assessments, unpaid checks or other amounts. 19. WAIVERS. The waiver by either party of any breach or violation of any term, covenant or condition of this Agreement, or of any ordinance law or regulation, shall not be deemed to be a waiver of any other term, covenant, condition, ordinance, law or regulation, or of any subsequent breach or violation of the same or other term, covenant, condition, ordinance, law or regulation. The subsequent acceptance by either party of any fee, performance, or other consideration which may become due or owing under this Agreement, shall not be deemed to be a waiver of any preceding breach or violation by the other party of any term, condition, covenant of this Agreement or any applicable law, ordinance or regulation. 20. COSTS AND ATTORNEY'S FEES. The prevailing party in any action brought to enforce the terms and conditions of this Agreement, or arising out of the 6 performance of this Agreement, may recover its reasonable costs (including claims administration) and attorney's fees expended in connection with such action. 21. APPLICABLE LAW. The laws of the State of California shall govern this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day, month and year first above written. CITY OF SAN RAFAEL Al et J . aB�nro, Mayor ATTEST: JeaH�M. Leonc i, Ci y Clerk AGary FORM: ianti, it Attorney VA CONTRACTOR By : , y .� Name: �Q�tiJ T}K Title: Services/Professional Services Contract Form 1 (1-95) Exhibit A The CITY has entered into an agreement with CONTRACTOR to serve as consultant and agent for the CITY in connection with the following utility bills. X Gas X Electricity X Water CONTRACTOR agrees to examine CITY utility accounts for the purpose of determining overcharges which may now exist or have previously existed and other related areas of savings. CONTRACTOR will prepare documentation necessary to negotiate with appropriate utility company(s) to have overcharges removed, initiate savings and obtain refunds and/or credits for past overcharges. Recovered Charges CITY agrees to pay CONTRACTOR fifty percent (50%) of all recovered overcharges in the form of refund(s) or credit(s) as a direct result of the work performed by the CONTRACTOR. Payment shall be due within ten (10) days from the date the credit first appears on billing or ten (10) days from receipt of refund. Future Billing Reductions With regard to future billing reductions, CITY agrees to pay CONTRACTOR fifty percent (50%) of the cumulative savings that result from the work of the contractor for a twenty four (24) month period beginning the date the savings first appear on client's bill. All fees are due within ten (10) days of billing. Billing will be made quarterly. In the event there is no refund or credit, or no reduction in the monthly charges, there will be no fees. a