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HomeMy WebLinkAbout11 - Civic Center HVACFebruary 14, 2017 Agenda Item No. 11 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Mike Pisani, Municipal Operations Director - 949-644-3055, mpisani@newportbeachca.gov PREPARED BY: Shelby Morgan, Management Specialist, smorgan(a-)newportbeachca.gov PHONE: 949-644-3013 TITLE: Approve Agreement with Climatec, LLC for Civic Center HVAC Control System Maintenance and Repair ABSTRACT: The Civic Center's HVAC Control System requires regular maintenance to perform at optimal efficiency and the current maintenance agreement for this system has expired. The manufacturer of the HVAC system, Alerton, only allows specific companies to service their systems and Climatec is the company authorized to provide service in this region. The Municipal Operations Department therefore requests an agreement be signed with Climatec for maintenance and repair services for the Civic Center HVAC Control System. RECOMMENDATION: a) Determine that the action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because it will not result in a physical change to the environment, directly or indirectly; and b) Approve Agreement with Climatec, LLC for Civic Center HVAC Control System Maintenance and Repair for a total amount not to exceed $205,440 for five years, and authorize the Mayor and City Clerk to sign the agreement. FUNDING REQUIREMENTS: The current adopted budget includes sufficient funding for this purchase. It will be expensed to the appropriate accounts in the Municipal Operations Department. Approve Agreement with Climatec, LLC for Civic Center HVAC Control Systems Maintenance & Repair February 14, 2017 Page 2 DISCUSSION: The Civic Center contains many building automation system components that contribute toward sustainability and environmentally friendly operations. One such system is the Heating, Ventilation and Air Conditioning ("HVAC") Control System ("System") manufactured by Alerton Technologies, Inc. ("Alerton"). The system is a set of climate controls, designed to regulate the air conditioning, heating and windows within the Civic Center. It works to be more cost-effective through presets designed to turn functions on and off based on the temperature inside and outside of the building. System components require regular calibration and maintenance to perform at optimal efficiency and to prevent issues from arising. The HVAC system is a proprietary system, thus Alerton only allows a specific service provider to work on it to ensure that maintenance and repair is performed in accordance with the manufacturer's standards. Climatec, LLC ("Climatec") is the designated primary service provider in the Southern California region. Using a different company for maintenance voids the warranty and could lead to the manufacturer restricting future software updates to the system. The City has contracted with Climatec since the facility was constructed, and the latest agreement expired on December 31, 2016. Throughout the term of the agreement, Climatec has been instrumental in ensuring that the HVAC system runs in optimal condition. They have extensive knowledge of the system's design and have been working closely with maintenance staff to help guarantee that the climate controls are set in such a way that Civic Center employees are comfortable. Thus, the Municipal Operations Department is requesting an agreement be approved for 5 years with a total amount not to exceed $205,440. ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). ATTACHMENT: Attachment A — Agreement with Climatec, LLC. 11-2 ATTACHMENT A MAI NTE NANCEIREPAIR SERVICES AGREEMENT WITH CLIMATEC, LLC FOR CIVIC CENTER HVAC CONTROL SYSTEM MAINTENANCE AND REPAIR THIS MAINTENANCE/REPAIR SERVICES AGREEMENT ("Agreement") is made and entered into as of this 14th day of February, 2017 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and CLIMATEC, LLC, an Arizona limited liability company ("Contractor"), whose address is 18002 Cowan, Suite 200, Irvine, California 92614, and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to cant' on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City desires to engage Contractor to perform maintenance and/or repair services for City ("Project"). C. Contractor possesses the skill, experience, ability, background, certification and knowledge to provide the maintenance and/or repair services described in this Agreement. D. Contractor has examined the location of all proposed work, carefully reviewed and evaluated the specifications set forth by City for the Project, is familiar with all conditions relevant to the performance of services, and has committed to perform all work required for the compensation specified in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the Effective Date, and shall terminate on December 31, 2021, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED 2.1 Contractor shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference ("Services" or "Work"). As a material inducement to City entering into this Agreement, Contractor represents and warrants that Contractor is a provider of first class work and Contractor is experienced in performing the Work contemplated herein and, in light of such status and experience, Contractor covenants that it shall follow community professional standards with the ordinary degree of skill and care that would be used by other reasonably competent practitioners of the same discipline under similar circumstances, in performing the Work required hereunder, and that all materials will be of good quality. 11-3 2.2 Contractor shall perform all Work required to be performed, and shall provide and furnish all the labor, materials, necessary tools, expendable equipment and all utility and transportation services necessary for the Project. 3. TIME OF PERFORMANCE 3.1 Time is of the essence in the performance of Services under this Agreement and Contractor shall perform the Services in accordance with the schedule included in Exhibit A. In the absence of a specific schedule, the Services shall be performed to completion in a diligent and timely manner. The failure by Contractor to strictly adhere to the schedule set forth in Exhibit A, if any, or perform the Services in a diligent and timely manner may result in termination of this Agreement by City. 3.2 Notwithstanding the foregoing, Contractor shall not be responsible for delays due to causes beyond Contractor's reasonable control. However, in the case of any such delay in the Services to be provided for the Project, each party hereby agrees to provide notice within two (2) calendar days of the occurrence causing the delay to the other party so that all delays can be addressed. 3.3 Contractor shall submit all requests for extensions of time for performance in writing to the Project Administrator as defined herein, not later than two (2) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Contractor's control. 3.4 For all time periods not specifically set forth herein, Contractor shall respond in the most expedient and appropriate manner under the circumstances, by fax, hand - delivery or mail. 4. COMPENSATION TO CONTRACTOR 4.1 City shall pay Contractor for the Services on a time and expense not -to - exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Except as otherwise provided herein, no rate changes shall be made during the term of this Agreement without the prior written approval of City. Contractor's compensation for all Services performed in accordance with this Agreement, including all reimbursable items, shall not exceed Two Hundred Five Thousand Four Hundred Forty Dollars and 00/100 ($205,440.00), without prior written amendment to the Agreement. 4.2 Upon the first anniversary of the Effective Date and upon each anniversary of the Effective Date thereafter, the billing rates set forth in Exhibit B ("Billing Rates") shall be adjusted in proportion to changes in the Consumer Price Index, subject to the maximum adjustment set forth below. Such adjustment shall be made by multiplying the Billing Rates in Exhibit B by a fraction, the numerator of which is the value of the Consumer Price Index for the calendar month three (3) months preceding the calendar month for which such adjustment is to be made, and the denominator of which is the value of the Consumer Price Index for the same calendar month immediately prior to Effective Date. The Consumer Price Index to be used in such calculation is the "Consumer Price Index, All Items, 1982-84=100 for All Urban Consumers (CPI -U)", for the Los Angeles- Climatec, LLC Page 2 11-4 Riverside -Orange County Metropolitan Area, published by the United States Department of Labor, Bureau of Labor Statistics. If both an official index and one or more unofficial indices are published, the official index shall be used. If said Consumer Price Index is no longer published at the adjustment date, it shall be constructed by conversion tables included in such new index. In no event, however, shall the amount payable under this Agreement be reduced below the Billing Rates in effect immediately preceding such adjustment. The maximum adjustment increase to the Billing Rates, for any year where an adjustment is made pursuant to this Section, shall not exceed the Consumer Price Index or 2.0% of the Billing Rates in effect immediately preceding such adjustment, whichever is less. 4.3 Contractor shall submit monthly invoices to City describing the Work performed the preceding month. Contractor's bills shall include the name and/or classification of employee who performed the Work, a brief description of the Services performed and/or the specific task in the Scope of Services to which it relates, the date the Services were performed, the number of hours spent on all Work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Contractor no later than thirty (30) calendar days after approval of the monthly invoice by City staff. 4.4 City shall reimburse Contractor only for those costs or expenses specifically identified in Exhibit B to this Agreement, or specifically approved in writing in advance by City. 4.5 Contractor shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any Work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with Exhibit B. 5. PROJECT MANAGER 5.1 Contractor shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Contractor has designated Tiffany Nicosia to be its Project Manager. Contractor shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. 5.2 Contractor, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of Services upon written request of City. Contractor warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered by the Municipal Operations Department. City's Facilities Maintenance Manager or designee shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator Climatec, LLC Page 3 11-5 shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES To assist Contractor in the execution of its responsibilities under this Agreement, City agrees to provide access to and upon request of Contractor, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Contractor's Work schedule. 8. TYPE AND INSTALLATION OF MATERIALS/STANDARD OF CARE 8.1 Contractor shall use only the standard materials described in Exhibit A in performing Services under this Agreement. Any deviation from the materials described in Exhibit A shall not be installed or utilized unless approved in advance and in writing by the Project Administrator. 8.2 All of the Services shall be performed by Contractor or under Contractor's supervision. Contractor represents that it possesses the personnel required to perform the Services required by this Agreement, and that it will perform all Services in a manner commensurate with community professional standards and with the ordinary degree of skill and care that would be used by other reasonably competent practitioners of the same discipline under similar circumstances. All Services shall be performed by qualified and experienced personnel who are not employed by City. By delivery of completed Work, Contractor certifies that the Work conforms to the requirements of this Agreement, all applicable federal, state and local laws and legally recognized professional standards. 8.3 Contractor represents and warrants to City that it has, shall obtain and shall keep in full force and effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Contractor to practice its profession. Contractor shall maintain a City of Newport Beach business license during the term of this Agreement. 8.4 Contractor shall not be responsible for delay, nor shall Contractor be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, acts of God, or the failure of City to furnish timely information or to approve or disapprove Contractor's Work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. RESPONSIBILITY FOR DAMAGES OR INJURY 9.1 City and all officers, employees and representatives thereof shall not be responsible in any manner for any loss or damage to any of the materials or other things used or employed in performing the Project or for injury to or death of any person as a result of Contractor's performance of the Services required hereunder; or for damage to property from any cause arising from the performance of the Project by Contractor, or its subcontractors, or its workers, or anyone employed by either of them. 9.2 Contractor shall be responsible for any liability imposed by law and for injuries to or death of any person or damage to property resulting from defects, Climatec, LLC Page 4 11-6 obstructions or from any cause arising from Contractor's Work on the Project, or the Work of any subcontractor or supplier selected by Contractor. 9.3 To the fullest extent permitted by law, Contractor shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, and employees (collectively, the "Indemnified Parties") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorneys' fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any Work performed or Services provided under this Agreement including, without limitation, defects in workmanship or materials or Contractor's presence or activities conducted on the Project (including the negligent and/or willful acts, errors and/or omissions of Contractor, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). 9.4 Notwithstanding the foregoing, nothing herein shall be construed to require Contractor to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorneys' fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Contractor. 9.5 Contractor shall perform all Work in a manner to minimize public inconvenience and possible hazard, to restore other work areas to their original condition and former usefulness as soon as possible, and to protect public and private property. Contractor shall be liable for any private or public property damaged during the performance of the Work by Contractor or its agents. 9.6 To the extent authorized by law, as much of the money due Contractor under and by virtue of the Agreement as shall be considered necessary by City may be retained by it until disposition has been made of such suits or claims for damages as aforesaid. 9.7 The rights and obligations set forth in this Section shall survive the termination of this Agreement. 10. INDEPENDENT CONTRACTOR It is understood that City retains Contractor on an independent contractor basis and Contractor is not an agent or employee of City. The manner and means of conducting the Work are under the control of Contractor, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. No civil service status or other right of employment shall accrue to Contractor or its employees. Nothing in this Agreement shall be deemed to constitute approval for Contractor or any of Ciimatec, i_t_C Page 5 11-7 Contractor's employees or agents, to be the agents or employees of City. Contractor shall have the responsibility for and control over the means of performing the Work, provided that Contractor is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Contractor as to the details of the performance of the Work or to exercise a measure of control over Contractor shall mean only that Contractor shall follow the desires of City with respect to the results of the Services. 11. COOPERATION Contractor agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the Work to be performed. City agrees to cooperate with Contractor on the Project. 12. CITY POLICY Contractor shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Contractor is responsible for keeping the Project Administrator informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Contractor's indemnification of City, and prior to commencement of Work, Contractor shall obtain, provide and maintain at its own expense during the term of this Agreement or for other periods as specified in this Agreement, policies of insurance of the type, amounts, terms and conditions described in the Insurance Requirements attached hereto as Exhibit C, and incorporated herein by reference. 15. PREVAILING WAGES Pursuant to the applicable provisions of the Labor Code of the State of California, not less than the general prevailing rate of per diem wages including legal holidays and overtime Work for each craft or type of workman needed to execute the Work contemplated under the Agreement shall be paid to all workmen employed on the Work to be done according to the Agreement by the Contractor and any subcontractor. In accordance with the California Labor Code (Sections 1770 et seq.), the Director of Industrial Relations has ascertained the general prevailing rate of per diem wages in the locality in which the Work is to be performed for each craft, classification, or type of workman or mechanic needed to execute the Agreement. A copy of said determination is available by calling the prevailing wage hotline number (415) 703-4774, and requesting one from the Department of Industrial Relations. The Contractor is required to obtain the wage determinations from the Department of Industrial Relations and post at the job site the prevailing rate or per diem wages. It shall be the obligation of the Contractor or any Climatec, LLC Page 6 11-8 subcontractor under him/her to comply with all State of California labor laws, rules and regulations and the parties agree that the City shall not be liable for any violation thereof. 16. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the Services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Contractor, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Contractor is a partnership or joint -venture or syndicate or cotenancy, which shall result in changing the control of Contractor. Control means fifty percent (50%) or more of the voting power or twenty-five percent (25%) or more of the assets of the corporation, partnership or joint -venture. 17. SUBCONTRACTING The subcontractors authorized by City, if any, to perform Work on this Project are identified in Exhibit A. Contractor shall be fully responsible to City for all acts and omissions of any subcontractor. Nothing in this Agreement shall create any contractual relationship between City and any subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. City is an intended beneficiary of any Work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and City. Except as specifically authorized herein, the Services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. 18. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents"), prepared or caused to be prepared by Contractor, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Contractor or any other party. Contractor shall, at Contractor's expense, provide such Documents to City upon prior written request. 19. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the Services in this Agreement, shall be kept confidential unless City expressly authorizes in writing the release of information. 20. RECORDS Contractor shall keep records and invoices in connection with the Services to be performed under this Agreement. Contractor shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any Services, expenditures and disbursements charged to City, for a minimum period of three (3) years, Climatec, LLC page 7 11-9 or for any longer period required by law, from the date of final payment to Contractor under this Agreement. All such records and invoices shall be clearly identifiable. Contractor shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Contractor shall allow inspection of all Work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Contractor under this Agreement. 21. WITHHOLDINGS City may withhold payment to Contractor of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Contractor shall not discontinue Work as a result of such withholding. Contractor shall have an immediate right to appeal to the City Manager or his/her designee with respect to such disputed sums. Contractor shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 22. CITY'S RIGHT TO EMPLOY OTHER CONTRACTORS City reserves the right to employ other contractors in connection with the Project. 23. CONFLICTS OF INTEREST 23.1 Contractor or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 23.2 If subject to the Act, Contractor shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Contractor shall indemnify and hold harmless City for any and all claims for damages resulting from Contractor's violation of this Section. 24. NOTICES 24.1 All notices, demands, requests or approvals, including any change in mailing address, to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first- class mail, addressed as hereinafter provided. 24.2 All notices, demands, requests or approvals from Contractor to City shall be addressed to City at: Attn: Facilities Maintenance Manager Municipal Operations Department City of Newport Beach Climatec, LLC Page 8 19-10 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92658 24.3 All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at: Attn: Tiffany Nicosia Climatec, LLC 18002 Cowan, Suite 200 Irvine, CA 92614 25. CLAIMS Unless a shorter time is specified elsewhere in this Agreement, before making its final request for payment under this Agreement, Contractor shall submit to City, in writing, all claims for compensation under or arising out of this Agreement. Contractor's acceptance of the final payment shall constitute a waiver of all claims for compensation under or arising out of this Agreement except those previously made in writing and identified by Contractor in writing as unsettled at the time of its final request for payment. Contractor and City expressly agree that in addition to any claims filing requirements set forth in the Agreement, Contractor shall be required to file any claim Contractor may have against City in strict conformance with the Government Claims Act (Government Code sections 900 et seq.). 26. TERMINATION 26.1 In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non -defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 26.2 Notwithstanding the above provisions, City shall have the right, at its sole and absolute discretion and without cause, of terminating this Agreement at any time by giving no less than seven (7) calendar days' prior written notice to Contractor. In the event of termination under this Section, City shall pay Contractor for Services satisfactorily performed and costs incurred up to the effective date of termination for which Contractor has not been previously paid. On the effective date of termination, Contractor shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. Climatec, LLC Page 9 27. LABOR 27.1 Contractor shall conform with all applicable provisions of state and federal law including, but not limited to, applicable provisions of the federal Fair Labor Standards Act ("FLSA") (29 USCA § 201, et seq.). 27.2 Whenever Contractor has knowledge that any actual or potential labor dispute is delaying or threatens to delay the timely performance of this Agreement, Contractor shall immediately give written notice to City, and provide all relevant information. 27.3 Contractor represents that all persons working under this Agreement are verified to be U.S. citizens or persons legally authorized to work in the United States. 27.4 To the fullest extent permitted by law, Contractor shall indemnify, defend, and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, and employees from loss or damage, including but not limited to attorneys' fees, and other costs of defense by reason of actual or alleged violations of any applicable federal, state and local labor laws or law, rules, and/or regulations. This obligation shall survive the expiration and/or termination of the Agreement. 28. STANDARD PROVISIONS 28.1 Recitals. City and Contractor acknowledge that the above Recitals are true and correct and are hereby incorporated by reference. 28.2 Compliance with all Laws. Contractor shall, at its own cost and expense, comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all Work prepared by Contractor shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 28.3 Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 28.4 Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 28.5 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 28.6 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or Climatec, LLC Page 10 11-12 against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 28.7 Amendments. This Agreement may be modified or amended only by a written document executed by both Contractor and City and approved as to form by the City Attorney. 28.8 Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 28.9 Controlling Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. 28.10 Equal Opportunity Employment. Contractor represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, sexual orientation, age or any other impermissible basis under law. 28.11 No Attorneys' Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. 28.12 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. [SIGNATURES ON NEXT PAGE] Climatec, LLC Page 11 11-13 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY OF NEWPORT BEACH, CITY ATTO EY'S OFFICE a California municipal corporation � Date: 1 7 Date: By: By: Aaron 6. Harp Kevin Muldoon City Attorney Mayor ATTEST: CONTRACTOR: Climatec, LLC, an Date: Arizona limited liability company Date: By: By: Leilani 1. Brown Terry Keenen City Clerk C.E.0. Date: By: Stefan Hartung C.F.©. [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Exhibit C — Insurance Requirements Climatec, LLC Page 12 11-14 SCOPE OF SERVICES Climatec, LLC Page A-1 11-15 EXHIBIT A — SCOPE OF SERVICES 1. SERVICE OVERVIEW AND FREQUENCY Contractor shall provide, on an annual basis, SEMI-MONTHLY (24) visits to perform Technical Support Services, for the Energy Management and Control System located at the Newport Beach Civic Center (100 Civic Center Drive). Services shall be provided by Contractor in accordance with the frequencies listed in the Scope of Services. Support Contact Information: Climatec Support Number: Climatec Support Email: 1-877-689-1649 SoCalService@Climatec.com 2. GENERAL PROVISIONS AND RESPONSIBILITIES 2.1 Account Management Contractor shall assign and designate an Account Manager to the City. The Account Manager shall ensure the designated services are provided, track service history, and consult with City to meet its objectives. City shall also be assigned a primary and a secondary Service Engineer. 2.2 Control System and Service Review Contractor shall hold an annual review with City staff to discuss the services performed during the past year and to recommend improvements and options to enhance system performance, resolve operational problems, and to meet the City's changing needs and objectives. 2.3 System and Service Log Contractor shall provide a log for documentation of observations, system problems, and other related items requiring attention. Each scheduled service visit shall begin with a review of this log to determine if these items will be addressed during the scheduled maintenance visit or will require a call to the Contractor Service Department to schedule a new service call. 2.4 Documentation All service visits will be documented by a field service report form (FSR) detailing a list of materials used, tasks performed and hours utilized. All FSR's will be signed by an authorized client representative to verify all work completed. Copies of all work orders and Contractor's service agreement scope will be kept in City's System and Service Log. 2.5 Database Protection Contractor will back-up City's HVAC Control System database, software and graphics during normal support visits. Should a catastrophic event occur, Contractor will respond onsite to reload the databases and system files from our stored backup copy and to ensure proper operation and performance. Repair costs and the costs to reload the databases and system file will be at the material and labor rates as detailed on Exhibit B. 2.6 Preventive Maintenance Maintenance shall be performed, per Section 4 of the Scope of Services, to optimize the systems effectiveness. Scheduled preventive maintenance visits will be evenly distributed throughout the year based upon the agreed number of visits. 2.7 Price Advantage City shall be considered a Technical Support Agreement customer and its service and support requests will receive preferred response. City's requests will be processed at a higher priority over non - agreement service and support requests. 11-16 EXHIBIT A — SCOPE OF SERVICES 3. ENERGY MANAGEMENT & CONTROLS SYSTEM SUPPORT - STANDARD PLUS SUPPORT SERVICES 3.1 Remote Support Contractor will provide sixteen (16) hours of on-line & telephone assistance to troubleshoot the City's system and resolve operational problems. Contractor will furnish and install the necessary on-line equipment to enable its personnel to remotely log -in to City's computer system via internet access. Unless stated otherwise, this equipment will remain the property of Contractor. City is responsible for IT port configuration, internet installation and service provider costs. 3.2 Operator Training — Customer Site Contractor will provide, at no additional cost, eight (8) hours of annual on-site operator training. City's representatives may opt to attend a two-day operator training course, limited to one (1) student, at Climatec's Irvine facility on an annual basis for the term of this agreement. 4. ENERGY MANAGEMENT & CONTROLS SYSTEM SUPPORT - PREVENTATIVE MAINTENANCE PLAN 4.1 DDC Data Communication Performance Analysis Contractor will analyze the physical condition of City's DDC network and the performance of the data communications. Contractor will then meet with City to discuss the network condition & performance and make recommendations for improvement if required. Tasks are as follows: Review System Riser • Check for use of network repeaters • Record any changes, tenant improvements or Integrations not shown on riser • Note locations of global controller (room number and power source / emergency circuit or UPS Alarm Analysis • Run report of alarms in last 60 days. • Note any communication alarms (for controller location and troubleshooting) • Review of nuisance alarms, discuss with customer Trend Log Activity Analysis: • Proper configurations • Number of trends • Sampling Rate • Buffer Size in global controller • Record trend list on the trending activity log Network Performance • Run device Scan — verify controller performance • Record elapsed time to pull devices • Note non responding or delayed response devices 11-17 EXHIBIT A — SCOPE OF SERVICES Global Controller • End of Line resistors location, controller, record resistive values) • Verify proper grounding • Check voltages • Clean cabinets • Record fed from power supply (note emergency power) • Note if line voltage is fed by UPS (verify battery operation as it may need to be replaced) 4.2 Air Handler Functional Performance Testing Contractor will analyze the performance of City's HVAC air handling systems. This service is delivered in the Spring & Fall, during the spring service Contractor will focus on the operation of the air handler cooling system control loops. During the fall service Contractor will focus on the operation of the air handler heating system control loops. On both visits, Contractor will also test: outside air dampers, mixed air dampers, peripheral sensors/devices and alarming. Tasks are as follows: DDC Hardware: • Verify power voltage • Verify terminals are solid • Verify HOA's in Auto position • Verify physical inputs match readings (DAT/RAT) • Verify outputs are controlling correctly (Economizer position 50% - look at dampers) DDC Server Software: • Print Display • Run alarm history • Run trend history • Review alarm and trend log history for diagnostics: o Note unit enable disable times from trends — does it match schedule o Review trends for out of range (i.e. DAT vs Set point, Duct Static Pressure, etc) • Verify Trend Logs: o Discharge Air Temperature o Return Air Temperature o Mixed Air Temperature o Economizer command position/percentage o Status of Cooling/ Heating/ DX (valve command, DX on/off) o Set point of DAT/Economizer etc. DDC Controller Software: • Verify set points match command/status o Discharge Air Temperature o Duct Static Pressure o Building Static Pressure o Economizer command —Temperature Lockouts o Is there RESET on DAT/Duct Static Pressure 11-18 EXHIBIT A — SCOPE OF SERVICES o Verify P1 Loop control. (may require set up of trends and M&V Process before adjusting) • Warm Up and Cool Down operation • Unit enable disable - on demand or schedule • Save DDC file per the unit naming scheme 4.3 Terminal Unit Functional Performance Testing Contractor will analyze the performance of City's HVAC terminal units (VAV's, Heat Pumps, AC Units, etc). This service is delivered quarterly (4) times per year. Contractor will perform heating to cooling switchover. Contractor will ensure all set points are at desired ranges and overrides are released which may be controlling the units. Contractor will also test: dampers, valves, temperature sensors, relays and alarms. 4.4 Alarm and Trend log Report and Verification Contractor will provide trendlog and alarm data reports for critical HVAC equipment. Contractor will review data for anomalies and advise client of recommended improvements of HVAC systems. 4.5 Chiller/Chilled Water System Functional Performance Testing Contractor will run an operational controls sequence to test the full range of the chiller and chilled water distribution system. This service is delivered quarterly (4) times per year. Contractor will analyze the chilled water supply temperatures at low and full -load conditions; verify temperature set point reset operations, chiller alarm interface to the Alerton DDC system, and the lead/lag operations of the chilled water system. 4.6 Boiler/Hot Water System Functional Performance Testing Contractor will run an operational controls sequence to test the full range of the boiler and hot water distribution system. This service is delivered quarterly (4) times per year. Contractor will analyze the hot water supply temperatures at low and full -fire conditions; verify temperature set point reset operations, boiler alarm interface to the Alerton DDC system, and the lead/lag operations of the hot water system. 5. ENERGY MANAGEMENT & CONTROLS SYSTEM SUPPORT - SOFTWARE MAINTENANCE Contractor shall install software updates to Alerton Building Suite (ABS) Software version 3.0, 3-6 months after release to ensure seamless integration into the existing platform. 6. EQUIPMENT LISTING The following equipment shall be serviced by Contractor under this agreement: QUANTITY .-' 'MFG: > , i, .;1VIODELNO ":" ' 1`REQUENCY '` LOCATION'•:. 56 Alerton VLC-1188 Annually Civic Center 9 Alerton VLC-1600 Annually Civic Center 127 UMC -3 Annually Civic Center 2 Alerton Boiler Control Annually Civic Center 4 Alerton Chiller Control Annually Civic Center 23 Meters Annually Civic Center 2 Alerton VAVih-SD Annually Civic Center 1 Dell PC Workstation Annually Civic Center 6 Alerton BCM Annually Civic Center 11-19 EXHIBIT A — SCOPE OF SERVICES 3 Alerton VLC-550 Annually Central Library 1 Alerton VLC-1188 Annually Central Library 1 Alerton VLC-1600 Annually Central Library 9 Alerton VAVih-SD Annually Central Library 1 Dell Laptop Annually Central Library 7. SCOPE OF SERVICES - SPECIAL CONDITIONS 7.1 Internal Controls This agreement excludes any internal controls associated with the individual HVAC equipment, such as factory installed and/or manufacturer supplied internal control modules, not associated with the Energy Management and Control System(s). 7.2 Fire/Life Safety This agreement is exclusive to the Direct Digital Control system. Excludes all work in association with Fire/Life Safety, including interfaces and interlocks to the Fire Alarm system, Smoke Detectors, Fire Dampers, Smoke Control Dampers and Smoke/Fire Dampers. 7.3 Retrofits and Tenant Improvements Upon completion of any retrofit or tenant improvement that incorporates new controls and devices added to the system, Contractor will provide additional cost proposals to be incorporated into the Technical Support Agreement. 11-20 EXHIBIT B SCHEDULE OF BILLING RATES This agreement shall be billed monthly and is due and payable no less than thirty (30) calendar days after approval of the monthly invoice by City. The monthly and annual charge for each year is as follows: YEAR MONTHLY CHARGE ANNUAL CHARGE _ Year 1 $3,424.DD $41,088.00 Year 2 $3,424.00 $41,088.00 Year 3 $3,424.00 $41,088.00 Year 4 $3,424.00 $41,088.00 Year 5 $3,424.00 $41,088.00 j TOTAL 5 YEAR COMPENSATION (NOT -TO -EXCEED)- $205,440.00 Rates: The following list contains the labor rates that shall be applied for services, provided by Contractor, not included in the scope of services of this agreement, or service specifically requested by the City: Standard Automation Specialist (M -F 7:00 A.M. to 4:00 P.M.): Standard Automation Specialist (M -F After 5:00 P.M. & Saturday) Standard Automation Specialist (Sunday & Holidays): Advanced Application Specialist (M -F 7:00 A.M. to 4:00 P.M.): Advanced Application Specialist (M -F After 5:00 P.M. & Saturday): Advanced Application Specialist (Sunday & Holidays): $145.00 per hour $217.50 per hour $290.00 per hour $180.00 per hour $270.00 per hour $360.00 per hour Material Discount: City shall receive a discount on all Alerton controls and strategic partner products. City shall receive 50% off of list price plus an additional 10% (.45 Multiplier) for all components listed in the Alerton Controls Price List. Climates, LLC page B-1 11-21 EXHIBIT C INSURANCE REQUIREMENTS — MAI NTENANCE/REPAIRIJANITORIAL SERVICES Provision of Insurance. Without limiting Contractor's indemnification of City, and prior to commencement of Work, Contractor shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. Contractor agrees to provide insurance in accordance with requirements set forth here. If Contractor uses existing coverage to comply and that coverage does not meet these requirements, Contractor agrees to amend, supplement or endorse the existing coverage. 2. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 3. Coverage Requirements. A. Workers' Compensation Insurance. Contractor shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. Contractor shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its City Council, boards and commissions, officers, agents, volunteers, and employees. B. General Liability Insurance. Contractor shall maintain commercial general liability insurance and, if necessary, umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) general aggregate. The policy shall cover liability arising from premises, operations, products -completed operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract). C. Automobile Liability Insurance. Contractor shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of Contractor arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented Climatec, LLC Page C-1 11-22 vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit each accident. 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its City Council, boards and commissions, officers, agents, volunteers, and employees or shall specifically allow Contractor or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Contractor hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subcontractors. B. Additional Insured Status. All liability policies including general liability, products and completed operations, excess liability, pollution liability, and automobile liability, if required, shall provide or be endorsed to provide that City, its City Council, boards and commissions, officers, agents, volunteers, and employees shall be included as insureds under such policies. C. Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self-insurance maintained by City. D. Notice of Cancellation. All policies shall provide City with thirty (30) calendar days notice of cancellation (except for nonpayment for which ten (10) calendar days notice is required) or nonrenewal of coverage for each required coverage. 5. Additional Agreements Between the Parties. The parties hereby agree to the following: A. Evidence of Insurance. Contractor shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation and other endorsements as specified herein for each coverage. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. City reserves the right to require complete, certified copies of all required insurance policies, at any time. B. City's Right to Revise Requirements. City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Contractor sixty (60) calendar days advance written notice of such change. If such change results in substantial Climatec, LLC Page C-2 11-23 additional cost to Contractor, City and Contractor may renegotiate Contractor's compensation. C. Right to Review Subcontracts. Contractor agrees that upon request, all agreements with subcontractors or others with whom Contractor enters into contracts with on behalf of City will be submitted to City for review. Failure of City to request copies of such agreements will not impose any liability on City, or its employees. Contractor shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Contractor shall ensure that City is an additional insured on insurance required from subcontractors. For CGL coverage, subcontractors shall provide coverage with a format at least as broad as CG 20380413. D. Enforcement of Agreement Provisions. Contractor acknowledges and agrees that any actual or alleged failure on the part of City to inform Contractor of non-compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. E. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Contractor maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for higher limits maintained by the Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. F. Self-insured Retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self- insurance will not be considered to comply with these requirements unless approved by City. G. City Remedies for Non -Compliance. If Contractor or any subcontractor fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this Agreement, or to suspend Contractor's right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Contractor or reimbursed by Contractor upon demand. H. Timely Notice of Claims. Contractor shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Contractor's Climatec, LLC Page C-3 11-24 performance under this Contract, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. I. Contractor's Insurance. Contractor shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work. Climatec, LLC Page C-4 11-25