20230516_09_Energy Assessment — Laguna Niguel City Council, May 16, 2023

CITY OF LAGUNA NIGUEL

CITY COUNCIL AGENDA ITEM
To: Honorable Mayor and Council Members
FROM: Jacki Scott, Public Works Director/City Engineer
DATE: May 16, 2023
SUBJECT: Approval of Professional Services Agreement for Energy Assessment Study with Kilowatt Engineering, Inc. dba KW Engineering

RECOMMENDATION
Staff recommends that the City Council:

1. Approve the Professional Services Agreement for Energy Assessment Study with Kilowatt Engineering, Inc. dba KW Engineering in the not-to-exceed amount of $114,555;

2. Approve a not-to-exceed 20% contingency of the total contract in the amount of $22,911 for unforeseen conditions or extra work and authorize the Public Works Director/City Engineer to approve additional work for a total not-to-exceed amount of $137,466, if needed; and,

3. Authorize the City Manager to execute the agreement and future amendments to the Professional Services Agreement with Kilowatt Engineering, Inc. dba kW Engineering, subject to the City Attorney making non-substantive changes.

BACKGROUND
As part of the City's adopted Strategic Plan Goal 4, Infrastructure and Technology, an implementation strategy was approved to conduct an energy assessment of City facilities and operations, including a review of the City's use of energy, both electricity and natural gas, and water. The energy assessment will conclude with an Energy Action Plan that will identify potential energy savings opportunities at specified City sites as well as the estimated implementation costs for the recommended energy conservation measures.

Due to the specialized knowledge and experience needed to perform a robust energy assessment and prepare an Energy Action Plan, the City opted to release a Request for Proposals (RFP) on the City's website rather than soliciting proposals from the on-call professional services list. In September 2022, staff published the RFP, shown as Attachment "B", to identify the most qualified consultant to provide an Energy Assessment Study that will culminate with the Energy Action Plan. An Energy Action Plan focuses on

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benchmarking and analyzing current energy use to identify potential energy efficiency measures (EEM), and as a by-product reduce green-house gas emissions (GHG). The selected consultant will perform an in-depth review and analysis of the City's infrastructure: parks, facilities and right-of-way sites, and equipment for potential energy efficiency measures, energy generation and storage options, and vehicle electrification that would reduce City energy usage and by extension, reduce greenhouse gas (GHG) emissions. Components of the City's infrastructure included in the study will include, but not be limited to:
• Heat ventilation and air conditioning (HVAC) Systems
• Energy Management Systems Installation
• Building Automation Systems Replacement/Installation
• Traffic signal and street LED lighting solutions
• Interior and exterior LED lighting solutions
• Renewable energy generation, including, but not limited to, Solar Photovoltaic • Energy storage (electrical & thermal)
• Replacement, repair, or retrofit of irrigation systems, restroom fixtures and Water Pumps Once the initial evaluation and energy audit is complete, this information will be utilized to provide recommended best practices, recommendations for implementation, engineer's estimates and a cost-benefit analysis of each measure. Additionally, to assist the City in evaluating and prioritizing the recommendations, a scoring mechanism and project development roadmap will be provided for each measure. The final report, Energy Action Plan, will also identify outside funding sources, financing mechanisms, and options to integrate smart city infrastructure as part of the implementation of various measures.

The Energy Action Plan with recommendations will be presented to City Council for consideration. The study is anticipated to begin in July 2023 with anticipated completion by June 2024.

To further assist the City and measure effectiveness, consultants were also asked to propose an optional web-based tool that would streamline data collection and trend analysis during and after the study. The web-based tool would also allow the City to track progress towards any implemented energy and water savings measures and provide reporting for Key Performance Indicators (KPls) to assess their effectiveness. Once the Energy Action Plan is approved and as part of future implementation phases, a before and after study will be conducted to determine results of selected energy-savings measures.

ANALYSIS
In response to the RFP, seven proposals were received. The proposals were evaluated based on the following criteria: (1) Proposed Key Personnel; (2) Project Approach; (3) Project Controls; (4) Relevant Experience and Client References; and (5) Cost. The Proposals Evaluation Summary can be found as Attachment "B". The table below displays the consultants, base costs and the pricing for an optional web-based tool for all received proposals.

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Cost of
Base Web-Based
Contractor Total Cost Ranking
Cost Tool
(Optional)
Kilowatt Engineering, Inc. dba
kW Engineering $81,489 $33,066 $114,555 1
(Recommended)
Energy Resources Integration, $82,080 $27,600 $109,680 2 LLC
BASE Energy, Inc. $77,660 $3,360 $81,020 3
P2S Inc. $138,842 $13,665 $152,507 4
Abraxas Energy Consulting $136,903 $4,280 $141,183 5
TetraTech $185,748 $24,200 $209,948 6
Energenz LLC dba NV5, Inc. $283,530 $87,000 $370,530 7
Pursuant to Laguna Niguel Municipal Code Section 3-6-8, professional services contracts of an estimated expenditure of $50,000 or more must be awarded based on the demonstrated competence of the service providers, and on the service provider's professional qualifications necessary for the satisfactory performance of the services required, and on the fairness and reasonableness of the cost of the services to the city and shall not be awarded solely on the basis of cost.

After a thorough review of the proposals received, and based on all relevant factors, staff selected Kilowatt Engineering, Inc. dba kW Engineering because this firm has the best overall value to perform the Energy Assessment Study. Most notably, KW Engineering demonstrated they had more comprehensive experience performing similar energy assessments for southern Orange County cities. KW Engineering has recently performed energy audits and developed energy action plans for the Southern California Edison's Orange County Cities Energy Partnership (OCCEP) which included the following Orange County Cities: Irvine, Newport Beach, Huntington Beach, Costa Mesa, Fountain Valley and Santa Ana. Additionally, since 2013, KW Engineering has supported the Energy Coalition's Southern California Regional Energy Network (SoCalREN) program and performed energy audits of 132 facilities located in: the City of Irvine, the City of Santa Monica, the City of Culver City, the City of Costa Mesa, the County of Los Angeles and the County of Orange. The key personnel that KW Engineering proposed for this study served in key positions for the OCCEP and SoCal REN energy audits. Furthermore, kw Engineering had the most robust and proven web-based tool which would: streamline data collection and energy use trend analysis during and after the study, provide customizable reporting for KPls, and includes a dedicated energy engineer point-of- contact to assist with ongoing support and issue resolution following approval of the Energy Action Plan.

Staff recommends that the City Council approve the Professional Services Agreement with Kilowatt Engineering, Inc. dba KW Engineering for the Energy Assessment Study to include implementation of the web-based tool in the not-to-exceed amount of $114,555 for Fiscal Year 2023-24. In addition, the Agreement will include a not-to-exceed 20%

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contingency of the total contract in the value of $22,911 for additional work for a total not- to-exceed amount of $137,466. Since incorporation, the City has not had a comprehensive energy assessment and due to the extensive nature of this energy assessment staff is recommending a 20% contingency in lieu of the standard 10% contingency for this study. The Professional Services Agreement with Kilowatt Engineering, Inc. dba kW Engineering can be found as Attachment "C".

ALTERNATIVES CONSIDERED

1. The City Council may direct staff to reject all proposals and rebid the RFP for the Energy Assessment Study. Staff believes that rebidding the RFP will not result in more desirable bids.

2. The City Council may decide not to approve the Professional Services Agreement with Kilowatt Engineering, Inc. dba KW Engineering and delay the Energy Assessment to a later date.

FISCAL REVIEW
The proposed Fiscal Year 2023-24 Public Works Department budget includes $137,466 Engine proposed Energy Assessment Study with Kilowatt Engineering, Inc. dba KW

LEGAL REVIEW
The City Attorney's Office has reviewed the Professional Services Agreement and has approved the document as to form.

CONCLUSION
Staff recommends that the City Council:

1. Approve the Professional Services Agreement for Energy Assessment Study with KW Engineering, Inc. in the not-to-exceed amount of $114,555;

3. Authorize the City Manager to execute the agreement and future amendments to the Professional Services Agreement with kW Engineering, Inc., subject to the City Attorney making non-substantive changes.

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3. Authorize the City Manager to execute the agreement and future amendments to the Professional Services Agreement with KW Engineering, Inc., subject to the City Attorney making non-substantive changes.

Tamara S. Letourneau
City Manager Publie Works Director/City Engineer
Ill Grerett
Kelli Everett
Management Analyst
Attachments:

A. RFP for Energy Assessment Study
B. Proposals Evaluation Summary
C. Professional Services Agreement with Kilowatt Engineering, Inc. dba kW Engineering

ATTACHMENT A
RFP for Energy Assessment Study
City of Laguna Niguel
Energy Assessment Study
Request for Proposals (RFP)
Issued: September 7, 2022 / Due: October 12, 2022 by 2:00 p.m. PST RFP Summary
RFP Title: Energy Assessment Study
Scope of Work: See Section I-4 (Scope of Work)
RFP Submittal Information: Interested Consultants will submit a PDF copy of your Proposal through the City's electronic procurement system (PlanetBids).

Late proposals will not be accepted.

RFP Due Date: October 12, 2022 by 2:00 p.m. PST
RFP Submittal Requirements: Your proposal must include the information described ir Section III (Proposal Form and Content) of this RFP
Consultant proposals will be considered non-responsive if the proposal does not provide all the information requested in Section Ill.

Prior to Award of Contract: The successful Consultant must submit a Certificate of Insurance and related endorsements that meets the City's criteria as described in the draft Agreement (Attachment B of this RFP).

REP Questions: Questions regarding this RFP must be submitted through the City's electronic procurement system (PlanetBids). The
deadline to submit questions is September 28, 2022 by 10:00 a.m. PST.

City Contact / Kelli Everett
Project Manager: Management Analyst
City of Laguna Niguel
Phone: (949) 362-4048
Email: [email protected]
City of Laguna Niguel, CA - RFP - Energy Assessment Study Page 2 of 38 Table of Contents
Section I - Project Information 5
I-1. Program Background ...5
I-2. City Background 5
I-3. Project Goals and Project Deliverables... 5
1-4. Scope of Work ...6
Section II - RFP Process . 10
II-1. RFP Timeline .10
II-2. RFP Questions and Responses ..10
II-3. RFP Due Date and Opening. ..11
II-4. RFP Evaluation Process 11
II-5. Request for Council Action 12
II-6. Execution of Agreement .. 12
II-7. Acceptance of Agreement and Term ... 13
Section III - Proposal Form and Content. 13
III-1. General Information 13
III-2. Proposal Submission Requirements and Response Format.. 13 11I-3. Certification StatementS.. 14
IIl-4. Letter of Transmittal 14
III-5. Work Approach and DRAFT STUDY SCHEDULE .14
III-6. Experience .14
III-7. Key Personnel.. 14
IlI-8. Itemized Cost Proposal 15
III-9. Other Information.. . 15
Section IV - Evaluation / Selection of Proposals .. ... 15 IV-1. Clarifications 15
IV-2. Proposal Evaluation and Selection .. 15
IV-3. Single or Multiple Contracts.. 15
Section V - General RFP Information .. 16
V-1. Public Records. ..16
V-2. Cancellation. .16
City of Laguna Niguel, CA - RFP - Energy Assessment Study Page 3 of 38 V-3. Late Proposals 16
V-4. Disputes . 16
V-5. Proposer Certifications. 17
V-6. Nondiscrimination 18
V-7. Proposed Liability. 18
V-8. City Requests for Clarification, Additional Research, and Revisions. 18 V-9. Rejection of Proposals... 19
V-10. Modification or Withdrawal of Proposal by Consultant.. 19 V-11. Duration of Proposal. 19
V-12. Local, State, and Federal Requirements.. 19
Section VI - Form to be Submitted.......... .. 20
VI-1. Certification Statement (submit with proposal). ..21 Attachment A - City Facility List........... 22
Attachment B - City's Sample Professional Services Agreement.. . 23 City of Laguna Niguel, CA - RFP - Energy Assessment Study Page 4 of 38

SECTION I - PROJECT INFORMATION
1-1. PROGRAM BACKGROUND
The City of Laguna Niguel ("City") is requesting proposals from qualified firms ("Consultant") for an Energy Assessment Study which will culminate in the development of a ten-year Energy Action Plan ("Plan"). The Plan shall identify potential energy saving measures, to include upgrading citywide energy, building, and water infrastructure. The energy saving measures should improve the City's operations, provide sustained revenue enhancement, technology advancement, and reduce operational costs. The Plan should include an approach for a smart, connected infrastructure utilizing the Internet of Things (loT) and related solutions.

The successful Consultant will be tasked with performing energy assessments of potential energy efficiency measures. A comprehensive analysis of both the environmental and financial costs and benefits of each measure shall be included. The Consultant will present the City with a detailed action plan to implement certain energy conservation, energy generation, and energy efficiency measures and services.

The Plan must identify potential energy savings opportunities at specified City sites as well as the estimated implementation costs for the recommended energy conservation measures. The Plan shall also present an overall potential energy cost and consumption savings of implementing the energy conservation measures. Finally, the Plan must define a strategy for the City to use in evaluating and prioritizing the measures identified in addition to future measures. 1-2. CITY BACKGROUND
The City of Laguna Niguel is a 14.72 square mile bedroom community with a population of approximately 67,208 located in Orange County, California. The City was incorporated on December 1, 1989 as a master planned community. The City is known for its mild coastal climate, low crime rate, and its numerous parks and public trails. Over the course of the year, the temperature typically varies from 49°F to 78°F and is rarely below 43°F or above 86°F.

I-3. PROJECT GOALS AND PROJECT DELIVERABLES
The Plan will be developed by a qualified Consultant with relevant experience serving other local government agencies. The Plan will provide a comprehensive overview, analysis summary and clear recommendations.

The awarded Consultant will develop the Plan as outlined in Section I-4 (Scope of Work). The Plan will be considered successful if the following project deliverables are met:

City of Laguna Niguel, CA - RFP - Energy Assessment Study Page 5 of 38

1. The Consultant attends an on-site kick-off meeting with City staff.

2. The Consultant will communicate with the City no less frequently than bi-monthly progress meetings via GoTo Meeting that will include at a minimum meeting agendas and next steps from previous meetings.

3. The Plan will include tangible, "quick win" energy-saving projects recommendations along with larger-scale, comprehensive projects recommendations that would require additional planning and design.
1-4. SCOPE OF WORK
The awarded Consultant will develop an itemized proposal that provides a full description and breakdown of fees for each of the study tasks listed in this section of the RFP. The City will then determine which of the study tasks to award in consideration of the City's budget.

Task 1: Project Management and Meetings
The Consultant's Key Personnel will attend an on-site kick-off meeting with City staff to discuss project goals and objectives, confirm the project schedule, and key points of contact. City staff and the Consultant team will identify existing documents, data, and City programs and facilities that will be investigated as part of the study. Bi-monthly progress meetings will be scheduled via GoTo Meeting.

Deliverables: Meeting agenda, meeting minutes, action items, facility/equipment photographs, PowerPoint presentations and action plans.

Task 2: Energy Assessment and Best Practices Memo
Consultant will perform an Energy Assessment of the City's infrastructure and equipment for potential energy efficiency measures, energy generation and storage options, and vehicle electrification that would reduce City energy usage and greenhouse gas (GHG) emissions. At a minimum, Energy Assessments will be performed for the following measures:
• Heat ventilation and air conditioning (HVAC) Systems Replacement • Energy Management Systems Installation
• Building Automation Systems Replacement/Installation
• Traffic signal and street LED lighting solutions
• Interior and exterior LED lighting solutions
• Renewable energy generation, including, but not limited to, Solar Photovoltaic • Energy storage (electrical & thermal)
• Replacement, repair, or retrofit of Water Pumps
City of Laguna Niguel, CA - RFP - Energy Assessment Study Page 6 of 38 • Municipal and Transit Fleet Electrification
The assessment will include, at a minimum:

1. Identify potential cost-saving measures, determine the cost savings of each measure, and present a verification plan to validate future savings of each measure. Assessments will be performed according to ASHRAE level 2 standards, and, at a minimum, address all building systems identified in the preceding paragraph. The assessment will clearly identify start-up and ongoing costs, benefits in energy and associated GHG emissions reductions, and simple payback schedule of each energy efficiency measure.

2. Perform a site feasibility and economic analysis of renewable energy generation, identifying:
• The current maximum load requirements and critical load requirements (during emergency and disaster response scenarios) of each potential renewable energy site; • The maximum system size (in kW or MW) and annual electricity generation capacity (in kWh or MWh) of each renewable energy site;
• An estimated solar and battery storage sizing estimate for each potential renewable energy site;
• The estimated total start-up cost, annual maintenance costs, and cost per kWh of each renewable energy installation;
• An estimated simple payback period for the installation of each renewable energy installation.
• A recommendation as to whether each site is suitable for a solar power purchase agreement and/or an onsite solar system with battery storage for business continuity purposes.

3. Utilize the findings from the Energy Assessment to prepare a Best Practices Memo that will include an engineer's estimate and a cost-benefit analysis of each measure. The memo will also identify outside funding sources, financing mechanisms, and options to integrate smart city infrastructure as part of the implementation of various measures. As required, the Best Practices Memo will include site maps, photographs, graphs, charts, and other visual illustrations to improve the readability of the Memo.

Deliverables: Best Practices Memo including the findings from the Energy Assessment Task 3: Implementation Report
Consultant will draft an Implementation Report for the energy-savings measures identified in the Best Practices Memo. The Report will:

City of Laguna Niguel, CA - RFP - Energy Assessment Study Page 7 of 38 • Propose a phasing schedule for all energy-savings measures identified in the Best Practices Memo.
• Propose a phasing plan for the replacement of internal combustion engine vehicles with electric vehicles (EV), and the associated EV charging infrastructure to meet the operational needs of the City.
• Recommend a scoring mechanism and project development road map for the City to evaluate and prioritize the recommended energy-savings measures. The intent will be to utilize the scoring mechanism to evaluate any additional sustainability and energy efficiency proposals and projects as they arise.
• Recommend a project delivery method for each energy-saving measure that would be most suitable to the project requirements and organizational constraints, considering design/build and design/build/operate/maintain models as well as the traditional design-bid-build project delivery model.

Propose funding mechanisms to help meet the financial costs of these projects by:
• Calculating the annual Capital Improvement Program (CIP) and Operating budget allocations required.

Identifying outside funding including pass-through and competitive grant opportunities, utility incentives and financing programs, as well as generalized timing to apply for these programs to have funding available for use with applicable projects. • Comparing the benefits and drawbacks of available financing mechanisms including utility on-bill financing, power purchasing agreements, and Efficiency as a Service (EAAS) financing through Energy Services Companies; and identifying applicable projects that would meet the requirements of any one program.

Deliverables: Implementation Report
Task 4: Draft Energy Action Plan
Consultant will submit a Draft Energy Action Plan to reduce Municipal energy consumption and GHG emissions. The Energy Action Plan will consist of the following sections:

1. Executive Summary

2. Introduction

3. Emissions Inventory and Forecast (Using Baseline (GHG) Emissions and Long-term Forecast as a basis for this section)

4. Energy Profile (Using the Best Practices Memo as a basis for this section)

5. Energy Efficiency Strategy (Using the Best Practices Memo and Implementation Report as a basis for this section)

6. Implementation Plan (Using the Implementation Report as a basis for this section)

7. Conclusion
City of Laguna Niguel, CA - RFP - Energy Assessment Study Page 8 of 38 Consultant will present an initial version of the Draft Energy Action Plan to City staff and make necessary edits in advance of presentation of the Draft Energy Action Plan to the City Council.

Consultant will provide support to City staff for public meetings and presentations of the Draft Energy Action Plan. This will include both the development of draft presentation slides and presentation at a minimum of two (2) City Council Meetings.

Deliverables: Draft Energy Action Plan and related presentation materials Task 5: Final Energy Action Plan
Consultant will make any necessary edits considering feedback and recommendations from the City Council and submit the Final Energy Action Plan.

Deliverables: Final Energy Action Plan
Task 6: Web-based Tool (Optional)
Consultant will provide an option to utilize a web-based Energy Action Plan implementation, monitoring and management tool, including:
• Build out a database of municipal energy usage, energy costs, and GHG emissions for municipal operations.
• Provide the capability to track progress towards the City's GHG reduction targets, energy usage reductions, cost savings, and project-specific milestones. • Set up reporting for Key Performance Indicators to assess the effectiveness of various energy efficiency measures implemented through the Energy Action Plan. • Train staff in the use and maintenance of the monitoring and management tool to report GHG emissions reductions and project-specific milestones in future years.

Task 7: Other Recommendations (Optional)
Consultant will propose additional recommendations consistent with their experience supporting other local government agencies.

City of Laguna Niguel, CA - RFP - Energy Assessment Study Page 9 of 38

SECTION II - RFP PROCESS
1I-1. REP TIMELINE
The following is the anticipated RFP Timeline. The timeline is subject to change if additional time is needed. Any timeline changes will be communicated via a RFP addendum.

Milestone Date
RFP Issued September 7, 2022
Due date for RFP Questions September 28, 2022 by 10:00 a.m. PST Responses Provided to RFP Questions October 5, 2022
RFP Submittal ("RFP Due Date") October 12, 2022 by 2:00 p.m. PST Optional Consultant Interview(s) - GoTo Meeting Tentatively scheduled for the week of October 17-21, 2022
City Council Award of Project On or about December 20, 2022 Kick-Off Meeting On or about January 10, 2023
II-2. REP QUESTIONS AND RESPONSES
Consultants interested in submitting a proposal are asked not to contact other City staff or City Council Members in connection with the RFP prior to the City Council Award of the Study.

Please submit any questions pertaining to the RFP through the City's electronic procurement system (PlanetBids) on or before September 28, 2022 by 10:00 a.m. PST. No questions will be accepted via phone or email. Once all questions are received, the City will summarize all questions and their responses in an addendum to the RFP. The addendum will be provided by October 5, 2022. The addendum will be posted to the City's electronic procurement system (PlanetBids):
https://pbsystem.planetbids.com.

In case additional clarifications need to be provided after October 5, 2022 and before the RFP Due Date, the City will post additional addenda to PlanetBids.

Each Consultant is responsible for obtaining all addenda prior to submitting a proposal and shall acknowledge in its proposal the receipt of each addendum as part of its proposal. Failure of Consultant to acknowledge receipt of all addenda as part of its proposal may result in rejection of its proposal.

City of Laguna Niguel, CA - RFP - Energy Assessment Study Page 10 of 38 11-3. RFP DUE DATE AND OPENING
Proposals are due on or before the RFP Due Date, October 12, 2022 by 2:00 p.m. PST.

Proposals will be addressed to the City Contact:

City of Laguna Niguel (City Hall)
c/o Kelli Everett
30111 Crown Valley Parkway
Laguna Niguel, CA 92677
Interested Consultants will submit a PDF copy of your proposal through PlanetBids.

It is the responsibility of the Consultant to ensure the proposal was received by the RFP Due Date.

Late proposals will not be accepted. The City will not publicly open or read proposals aloud.

I1-4. RFP EVALUATION PROCESS
This RFP is not a formal bid process governed by formal bid rules typically associated with public projects. The evaluation and selection process are based upon consideration of a variety of factors as described below. Accordingly, the City reserves the right to waive technical errors, alter submission dates, issue subsequent requests for proposals, etc.

An Evaluation Committee comprised of City staff, will review and score all proposals based on the Evaluation criteria stated below. The selection will be made based on the recommendation of the team and presented to the City Council for approval to award and agreement execution. The individual rating and/or evaluation forms prepared by the team members will not be revealed; however, a summary of the evaluation results will be presented to the City Council.

During the evaluation process, the Committee may, at its discretion, request any one or all Consultants to make oral presentations by participating in a virtual interview. Such presentations will provide Consultants with an opportunity to answer any questions the Committee may have on their qualification package. Not all Consultants may be asked to make such oral presentations. The interview process will primarily focus on the key personnel proposed by the Consultant to perform work for this City. The City may also request the presence of the Consultant's principal-in-charge, if necessary.

The City of Laguna Niguel will review and evaluate the proposals based on the following factors to select the most qualified Consultant:

1. Proposed Key Personnel - The experience and qualifications of the proposed key personnel and the firm on similar projects. The designated Project Manager must be able to perform as the City of Laguna Niguel, CA - RFP - Energy Assessment Study Page 11 of 38 sole point of contact and provide day to day direction to team members and subconsultants.

Expertise and background of the Project Manager and key team members and their availability to participate on this Study will be evaluated and overall firm capabilities to meet the additional needs of the City.

2. Project Approach - The proposed project approach and services that the firm is capable of providing and the firm's approach to meet the needs of the City. The Consultant understands the study specific issues and is able to identify study challenges as well as possible solutions.

3. Project Controls - The firm's ability to control costs and provide accurate and timely invoices, stay within budget, monitor schedule, and describe the techniques used to complete projects within the proposed time frames.

4. Relevant Experience and Client References

5. Cost - The proposed fee will be evaluated based on reasonableness of the proposed costs. Costs will be evaluated on costs the City or other comparable public agencies have paid for similar services, and in accordance with what is to be considered with the industry's standard and customary costs for the Services.

Selection by the City shall be based on demonstrated competence and on the professional qualifications necessary for the satisfactory performance of the services required and shall not be awarded solely based on project cost. Selection will be made to ensure that such services are engaged based on demonstrated experience and qualifications at fair and reasonable prices to the City.

I1-5. REQUEST FOR COUNCIL ACTION
Following evaluation and rating by the City's Evaluation Committee, the City will recommend a Consultant for award at a City Council Meeting. The selected Consultant will enter into an agreement with the City based upon the contents of the RFP and the Consultant's proposal. Consultants not chosen will be informed following the City Council Meeting.

I1-6. EXECUTION OF AGREEMENT
A sample Professional Services Agreement is attached herein as an Attachment "B". The term of the Agreement will begin once the Agreement is fully executed, and a W9 and a certificate of insurance and related insurance endorsements that meet the City's requirements have been received and approved.

City of Laguna Niguel, CA - RFP - Energy Assessment Study Page 12 of 38 I1-7. ACCEPTANCE OF AGREEMENT AND TERM
After the City Council awards the Study, the City will work to fully execute the Professional Services Agreement (Attachment "B"). The term of the Professional Services Agreement will be for one year or, until this RFP's Scope of Work (Section I-4) is completed.

SECTION III - PROPOSAL FORM AND CONTENT
III-1. GENERAL INFORMATION
The City reserves the right to retain all proposals submitted. Submission of a proposal indicates Consultant's acceptance of the conditions contained in this RFP, unless clearly and specifically noted in the proposal submitted and confirmed in the agreement between the City and the Consultant selected.

The City reserves the right to reject any or all proposals, in whole or part, to waive any informality in any proposal, and to accept the proposal which, in its discretion, is in the best interest of the City. Any Consultant may withdraw their proposal, without obligation, at any time prior to the RFP Due Date. A withdrawal will not be effective unless made personally in writing to the City Contact prior to the RFP Due Date. Proposals may later be referred to the City Council for appropriate action.

Proposals must be valid for a minimum of 90 days.
11I-2. PROPOSAL SUBMISSION REQUIREMENTS AND RESPONSE FORMAT Consultant is responsible for preparing a well-organized and concise written proposal. Emphasis should be on completeness, clarity of content, and cost effectiveness of the proposal.

To be considered for selection, Consultants must submit a complete response to this RFP that includes the following mandatory information and/or requirements in the following format and order. Failure to provide any of the information requested below may be cause for the proposal to be considered non-responsive.

1. Certification Statement

2. Letter of Transmittal

3. Work Approach and Draft Study Schedule

4. Experience

5. Key Personnel

6. Itemized Cost Proposal
City of Laguna Niguel, CA - RFP - Energy Assessment Study Page 13 of 38

7. Other Information
Additional guidelines for the mandatory information and/or requirements listed above are described in the next sections.

III-3. CERTIFICATION STATEMENTS
All submitted proposals must contain a signed certification statement (see Section VI-1). Additionally, Consultant shall affirmatively state that they have reviewed and are ready to execute the City's standard form Professional Services Agreement (Attachment "B") in its Letter of Transmittal. 111-4. LETTER OF TRANSMITTAL
All proposals must include a cover letter addressed to the City's Project Manager and signed by a duly constituted official legally authorized to bind the Consultant to both its proposal and cost schedule.

The cover letter must include the name, address, phone number, and email address of the Consultant's main point of contact (to whom the City should direct correspondence). The main point of contact can be different from the Consultant's Project Manager.

III-5. WORK APPROACH AND DRAFT STUDY SCHEDULE
Provide a detailed work plan, discussing the Consultant's approach and draft study schedule for providing the tasks described in the Scope of Work section of this RFP. The proposal should discuss how the Consultant will conduct each task, in detail sufficient to demonstrate clear understanding of the Study and identify deliverables. The City facilities that the Consultant shall evaluate for this Study are listed in Attachment "A" to this RFP, subject to change based upon the available City budget.

I1I-6. EXPERIENCE
Describe the Consultant's capabilities and experience. List Consultant's experience working with similar projects. A summary (no longer than one page each) of at least three (3) studies similar in subject matter and scope to this Study. Note: The focus should be on recent and local project experience that is relevant to the Scope of Work section of this RFP.

III-7. KEY PERSONNEL
Provide an overview of the key personnel that will staff this project. Submit a resume or other breakdown listing the experience of key personnel. Provide an organization chart that reflects the titles of key staff and management contacts of each individual assigned to provide the requested services.

City of Laguna Niguel, CA - RFP - Energy Assessment Study Page 14 of 38 III-8. ITEMIZED COST PROPOSAL
Provide an itemized cost proposal to provide the tasks described in the Scope of Work outlined in this RFP.

I|I-9. OTHER INFORMATION
Provide additional information to help the City's review team evaluate your proposal in comparison to the proposal(s) submitted by other Consultant(s).

SECTION IV - EVALUATION / SELECTION OF PROPOSALS
IV-1. CLARIFICATIONS
The City reserves the right to seek written clarification of each proposal submitted. The City also reserves the right to require other evidence of minimum qualifications, technical, managerial, financial, or other abilities prior to selection.

IV-2. PROPOSAL EVALUATION AND SELECTION
The City will select a Consultant based on the evaluation of the submitted proposals. The City reserves the right to request a Best and Final Offer (BAFO) from the top ranked Consultants. The City will recommend the award of contract to the highest ranked and responsive Consultant.

IV-3. SINGLE OR MULTIPLE CONTRACTS
The City will award only one Consultant to provide all services described in the Scope of Work in this RFP (Section I-4). If multiple Consultant's desire to work together, one Consultant will enter a contract with the City and agree upon a method of compensation with the other Consultants), separate from the City.

City of Laguna Niguel, CA - RFP - Energy Assessment Study Page 15 of 38

SECTION V- GENERAL REP INFORMATION
V-1. PUBLIC RECORDS
Responses to this RFP become the exclusive property of the City and are subject to the California Public Records Act. Those elements in each proposal which are trade secrets as that term is defined in California Civil Code section 3426.1(d) or otherwise exempt by law from disclosure and which are prominently marked as "TRADE SECRET", "CONFIDENTIAL" ', or "PROPRIETARY" may not be subject to disclosure. The City shall not in any way be liable or responsible for the disclosure of any such records including, without limitation, those so marked if disclosure is deemed to be required by law or by an order of the Court. Consultants who indiscriminately identify all or most of their proposal as exempt from disclosure without justification may be deemed non-responsive.

In the event the City is required to defend an action on a Public Records Act request for any of the contents of a proposal marked "confidential", "proprietary", or "trade secret", the Consultant agrees, upon submission of its proposal for City's consideration, to defend and indemnify the City from all costs and expenses, including attorney's fees, if any action or liability arising under the Public Records Act.

V-2. CANCELLATION
The City reserves the right to cancel this RFP or the contract award, at any time before execution of the contract by both parties, if cancellation is deemed to be in the best interest of the City. In no event shall the City have any liability for the cancellation of a contract award.

V-3. LATE PROPOSALS
All proposals that are not received by the RFP Due Date will not be considered and will not be returned to the Consultant.

V-4. DISPUTES
In case of any doubt or differences of opinion as to the items or services to be furnished hereunder, or the interpretation of the provisions of this RFP, the decision of the City shall be final and binding upon all parties.

City of Laguna Niguel, CA - RFP - Energy Assessment Study Page 16 of 38 V-5. PROPOSER CERTIFICATIONS
By the act of submitting a Proposal in response to this RFP, the Proposer certifies that:

1. The Consultant has carefully examined all RFP documents, including the draft Agreement (attached as Attachment "B"), and all addenda, and fully understands the intention of the RFP is to perform all tasks as described in the Scope of Work of this RFP, and the proposal is made in accordance therewith. Except as otherwise noted as part of the proposal, the Consultant certifies that Consultant is ready, willing, and able to comply with all terms of the attached Agreement.

2. The Consultant is familiar with the local conditions under which the work will be performed.

3. The proposal is based upon the requirements described in the RFP, without exception, unless clearly stated in the response.

4. The Consultant accepts all of the terms of the City's Agreement and warrants that Consultant will fully meet all of the insurance requirements contained therein. If the Consultant wishes to amend or modify any terms of the Agreement, such amendment or modification must be stated in particularity in the Proposal. Proposed changes to the Agreement not stated at the time of proposal submission will not be considered. Changes stated will be considered but may not be agreed upon by the City for contract award. If the City does not agree with such noted changes, the Consultant may withdraw the proposed change, or the entire proposal and the City may elect to award the contract to the next highest ranked Consultant.

5. The Consultant certifies, and in the case of sole proprietorship, partnership, or corporation, each party thereto certifies as to its own organization, under penalty of perjury, that to the best of Consultant's knowledge and belief, no elected official, employee, or person whose salary is payable, in whole or in part, by the City has a direct or indirect financial interest in the proposal or in the services to which it relates, or in any of the profits thereof, other than as fully described in the Consultant's response to this RFP.

6. The Consultant has examined all parts of the RFP, including all requirements and contract terms and conditions thereof, and if its proposal is accepted, the Consultant shall accept the contract documents thereto, unless substantive changes are made in same without the approval of the Consultant.

7. The Consultant, if an individual, is of lawful age; is the only one interested in this proposal; and no person, firm, or corporation, other than that named, has any interest in the proposal, or in the proposed Agreement.

City of Laguna Niguel, CA - RFP - Energy Assessment Study Page 17 of 38

8. The Consultant has quality experience providing the types of services and duties as described within the Scope of Work of this RFP.

9. The Consultant shall also certify Consultant's state of residence.

V-6. NONDISCRIMINATION
By the act of submitting a proposal in response to this RFP, the Consultant certifies, under penalty of perjury, that the Consultant has not discriminated against minorities, women, or emerging small business enterprises, or a business enterprise that is owned or controlled by or that employs a disabled veteran, in obtaining any required subcontracts.

V-7. PROPOSED LIABILITY
Consultants responding to this RFP do so solely at their expense, and the City is not responsible for any Consultant expenses associated with the RFP. By proposing, Consultants agree that doing so is at their own risk and the City shall have no liability related thereto. Finalists invited to participate in interview evaluations are responsible for scheduling and paying for their own travel arrangements. The City is not liable for any cost incurred by a Consultant in protesting any portion of the RFP documents or the City's selection decision.

V-8. CITY REQUESTS FOR CLARIFICATION, ADDITIONAL RESEARCH, AND REVISIONS The City reserves the right to obtain clarification of any portion of a proposal or to obtain additional information necessary to properly evaluate a particular proposal. Failure of a Consultant to timely respond to such a request for additional information or clarification may result in a finding that the Consultant is non-responsive and consequent rejection of the proposal.

The City may obtain information from any legal source for clarification of any proposal. The City need not inform the Consultant of any intent to perform additional research in this respect or of any information thereby received.

The City may perform, at its sole option, investigations of any Consultant. Information may include, but shall not necessarily be limited to, current litigation and contracting references. All such documents, if requested by the City, become part of the public record and may be disclosed accordingly.

The City reserves the right to request revisions of any proposal after the date and time due and before award for the purpose of obtaining best and final offers.

City of Laguna Niguel, CA - RFP - Energy Assessment Study Page 18 of 38 V-9. REJECTION OF PROPOSALS
The City reserves the right to reject any or all irregularities or omissions in proposals submitted in response to this RFP to the extent it is determined to be in the best interest of the City to do so.

Furthermore, the City reserves the right to reject any or all proposals or portions thereof submitted in response to this RFP. Proposals may be rejected for one or more of the following reasons, including but not limited to:

1. Failure of the Consultant to adhere to one or more of the provisions established in the RFP.

2. Failure of the Consultant to submit a proposal in the format specified herein.

3. Failure of the Consultant to submit a proposal within the time requirements established herein.

4. Failure of the Consultant to adhere to ethical and professional standards before, during, or following the proposal process.

The City may reject any proposal not in compliance with all prescribed public procurement procedures and requirements and may reject for good cause any or all proposals upon a finding by the City that it is in the public interest to do so. Rejected proposals are considered to be non-responsive.

V-10. MODIFICATION OR WITHDRAWAL OF PROPOSAL BY CONSULTANT A proposal may not be modified, withdrawn, or canceled by the Consultant following the time and date the proposals are due (RFP Due Date). Proposals submitted early may be modified or withdrawn only by notice to the City at the proposal submittal location prior to the time and date the proposals are due. Such notice shall be submitted to the Project Manager, by email, sent by a duly authorized representative of the Consultant submitting the proposal. All such communication shall be worded so as not to reveal the contents of the original proposal. Withdrawn proposals may be resubmitted prior to the time and date the proposals are due, provided that they are then fully in conformance with the RFP.

V-11. DURATION OF PROPOSAL
Proposal prices, terms, and conditions shall be firm for a period of at least ninety (90) days from the time and date proposals are due. Proposals shall not be subject to future price escalation or changes of terms during the ninety (90) day period.

V-12. LOCAL, STATE, AND FEDERAL REQUIREMENTS
The City intends to select a Consultant in accordance with California law and the City's municipal code.

Selection of a Consultant under this process is not a guarantee of a contract award, nor is the award of City of Laguna Niguel, CA - RFP - Energy Assessment Study Page 19 of 38 a contract for any portion of the project a guarantee of award of a contract for any subsequent work.

All work is subject to budgetary and funding constraints of the City.

The selected Consultant shall comply with all federal, state, and local laws, regulations, executive orders, and ordinances applicable to the work under the Agreement, including, without limitation, the provisions of: (i) Title VI of the Civil Rights Act of 1964; (ii) Section V of the Rehabilitation Act of 1973; (iii) the Americans with Disabilities Act of 1990; (iv) all regulations and administrative rules established pursuant to the foregoing laws; and (v) all other applicable requirements of federal and state civil rights and rehabilitation statutes, rules, and regulations.

SECTION VI - FORM TO BE SUBMITTED
Please complete and submit the following form as part of your proposal:

VI-1. Certification Statement
City of Laguna Niguel, CA - RFP - Energy Assessment Study Page 20 of 38 VI-1. CERTIFICATION STATEMENT (SUBMIT WITH PROPOSAL
This certification statement is provided in response to the City of Laguna Niguel's RFP titled:

Energy Assessment Study
All proposals must include this certification statement, signed by a duly constituted official legally authorized to bind the Consultant to both its proposal and cost schedule.

1. Proposal may be released in total as public information in accordance with the requirements of the laws covering the same. Any proprietary information has been clearly marked.

2. Proposal and cost schedule shall be valid and binding for ninety (90) days following the proposal due date or any revised proposal submission date, whichever is later, and will become part of the contract that is negotiated with the City.

3. The Consultant has not and will not discriminate against a subcontractor in the awarding of a subcontract because the subcontractor is a minority, woman, or emerging small business enterprise.

4. The Consultant certifies that this proposal has been arrived at independently and has been submitted without collusion designed to limit independent bidding or competition.

5. The Consultant has not had any communication with a City Councilmember in relation to their proposal. If so, Consultant will provide a copy of such communication for the public record.

6. The Consultant has never been disqualified, removed, or otherwise prevented from bidding on, or completing a federal, state, or local government project because of a violation of law or safety regulation.

Consultant's Signature Date
Print Name Title
Consultant's Federal Taxpayer Identification Number:

City of Laguna Niguel, CA - RFP - Energy Assessment Study Page 21 of 38

ATTACHMENT A - CITY FACILITY LIST
No. Name Address
1 Beacon Hill Park 24472 Beacon Hill Way
2 Bear Brand Park 32385 Bear Brand Park Road
3 Chapparosa Park 25191 Chapparosa Park Road
4 Clipper Cove Park 29325 Clipper Way
5 Crown Royale Park 29457 La Paz Road
6 Crown Valley Community Park & YMCA 29751 Crown Valley Parkway 7 El Lazo Basketball Park 23804 El Lazo
8 Hidden Hills Park 27802 Springwood
9 Juaneno Park 25078 Hidden Hills Road
10 Laguna Niguel City Hall 30111 Crown Valley Parkway
11 Laguna Niguel Blue Gates Skate & Soccer Park 27745 Alicia Parkway 12 La Hermosa Park 24462 La Hermosa Avenue
13 La Paz Sports Park 28051 La Paz Road
14 La Plata Park 25006 La Plata Drive
15 Long View Park Old Ranch Road
16 Marina Hills Park 24802 Marina Hills Drive
17 Metrolink Train Station 28200 Forbes Road
18 Niguel Heights Park 27804 Niguel Heights Blvd
19 Niguel Road Park 30983 Killini
20 Niguel Woods Park 29883 White Otter Lane
21 Ocean Breeze Park 32311 Charles Road
Parc Vista Overlook Park 30618 Parc Vista Road
23 Parc Vista Park 30618 Parc Vista Road
24 Parc Vista View Park 31114 Parc Vista Road
25 Pooch Park 31575 Golden Lantern
26 Rancho Niguel Park 28333 Crown Valley Parkway
27 Redondo View Node Park 25575 Redondo
28 Reef View Node Park 25326 Reef
29 Ridge View Park 29061 Ridgeview
30 Sea Country Senior & Community Center 24602 Aliso Creek Road 31 Seminole Park 30802 Seminole Place
32 Vista Plaza Park 29541 Vista Plaza
33 Yosemite Park 24481 Yosemite Road
City of Laguna Niguel, CA - RFP - Energy Assessment Study Page 22 of 38

ATTACHMENT B- CITY'S SAMPLE PROFESSIONAL SERVICES AGREEMENT

AGREEMENT FOR PROFESSIONAL SERVICES
(PUBLIC WORKS DEPARTMENT)
THIS AGREEMENT FOR PROFESSIONAL SERVICES ("Agreement") is made and entered into on _ by and between the City of Laguna Niguel, a municipal corporation, hereinafter the "City", and [Company Name], a hereinafter the "Consultant".

RECIIALS:

A. The City desires to contract with selected professional consultants to provide professional [architectural/engineering/special inspection & testing services to support the Public Works Department in the following categories: 1) Design Engineering, 2) Plan Checking; 3) Project and Program Management and 4) Construction Management and/or Inspection Services.]
The City circulated a Request for Proposals for the above-described professional services on _20_
Consultant submitted a proposal to City to provide the above-described professional services dated ,20.

D. City Staff has reviewed all the proposals and after considering the demonstrated competence of Consultant, the professional qualifications of Consultant, and the fairness and reasonableness of Consultant's proposed cost, staff has determined that an agreement to provide the required services should be awarded to Consultant.

E. The City desires to enter into an agreement with Consultant for the above- described professional services.

AGREEMENI:

NOW, THEREFORE, in consideration of the foregoing Recitals and the mutual promises and covenants herein contained, the parties hereto agree as follows:

Services to be Performed by Consultant. Consultant agrees to perform the professional services for City and to prepare and deliver the work products to City, in a manner satisfactory to City, as described in the Scope of Services ("Scope of Services") which is attached hereto as Exhibit "A."
City of Laguna Niguel, CA - RFP - Energy Assessment Study Page 23 of 38 Additional or Different Services. Any proposed changes in the Scope of Services which are the subject of this Agreement shall be made only by written amendment to this Agreement.

3. Term. This Agreement shall become effective on the date stated above and will continue in effect [for a period of days thereafter] [or until the work required by this Agreement is completed! subject to termination as provided in paragraph 28, except the indemnification provisions contained in paragraph 19 shall remain in full force and effect after the Agreement is terminated. The parties may mutually agree in writing to extend the Term of the Agreement.

4. Payment.

A. Payment for Services. City agrees to pay Consultant for providing the professional services which are described in the Scope of Services, and to pay for those services in the amount and in the manner and at the times set forth in Exhibit "A" for the not to exceed sum of $xxxx.

B. Invoices. Upon submission of each invoice, if the City is satisfied that the Consultant has performed the services described therein, the City shall promptly approve the invoice, in which event, payment shall be made within 30 days of receipt of the invoice by the City. Such approval shall not be unreasonably withheld.

Ownership of Documents and Drawings. All original drawings, plans, designs, reports, notes, calculations, maps, and other documents developed during the course of Consultant providing the professional services required by the Scope of Services shall be the property of the City and shall be provided by Consultant to City upon their completion and payment of relevant invoices, or in the event the Agreement is terminated prior to completion, Consultant shall provide all work in progress, subject to payment of relevant invoices. Further, even if this Agreement is terminated, said documents shall be the property of the City and may be used by City as it determines appropriate. Reuse or modification of any such documents by the City for purposes outside of the Scope of Services set forth in this Agreement, without Consultant's written permission, shall be at City's sole risk, and City agrees to indemnify and hold Consultant harmless from all claims, damages, and expenses, including attorney's fees, arising out of such reuse by City or others acting through City; however, City shall not be liable for any unauthorized use by third parties.

6. Time is of the Essence. Consultant agrees to perform the services and deliver the work products provided for herein in strict accordance with any schedules set forth in the attached Exhibit "B" (Schedule). Notwithstanding any other provisions of this Agreement, the Consultant shall not have liability for, or be deemed in breach of delays caused by, any factor outside of its reasonable control, including but not limited to natural disasters, adverse weather, or acts

7. Consultant to Supply Instrumentalities. Consultant shall supply all instrumentalities required to perform the services under this Agreement.

City of Laguna Niguel, CA - RFP - Energy Assessment Study Page 24 of 38

8. Licenses: Standard of Care.

A. Qualifications. Consultant represents and agrees that all personnel engaged by Consultant in performing services are and shall be fully qualified and are authorized or permitted under state and local law to perform such services. Consultant represents and warrants to City that it has all licenses, permits, qualifications, and approvals required of its profession to provide the services and work required to be performed by this Agreement.

Consultant further represents and warrants that it shall keep in effect all such licenses, permits, and other approvals during the term of this Agreement.

B. Standard of Care. Consultant shall perform the services under this Agreement in a skillful and competent manner. The Consultant shall be responsible to City for any errors or omissions in the pertormance of work pursuant to this Agreement. Should any errors caused by Consultant be found in such services or products, Consultant shall correct the errors at no additional charge to City by redoing the professional work and/or revising the work products) called for in the Scope of Services to eliminate the errors.

9. Legal Responsibilities. Consultant shall keep itself informed of all State and Federal laws and regulations which may, in any manner, affect those employed by it or in any way affect the performance of its services pursuant to this Agreement. Consultant shall, at all times, observe and comply with all such laws and regulations. City, and its officers and employees, shall not be liable at law or in equity by reason of the failure of the Consultant to comply with this paragraph.

10. Prevailing Wages.

A. Public Works. This Agreement calls for services that, in whole or in part, constitute "public works" as defined in Division 2, Part 7, Chapter 1 (commencing with Section 1720) of the California Labor Code ("Chapter 1"). Further, Consultant acknowledges that this Agreement is subject to (a) Chapter 1 and (b) the rules and regulations established by the Department of Industrial Relations ("DIR") implementing such statutes. Therefore, as to those services that are "public works", Consultant shall comply with and be bound by all the terms, rules and regulations described in Chapter 1 and the rules and regulations established by the DIR implementing such statutes as though set forth in full herein.

B. Contracts. California law requires the inclusion of specific Labor Code provisions in certain contracts. The inclusion of such specific provisions below, whether or not required by California law, does not alter the meaning or scope of paragraph A of this Section.

C. Registration with DIR. Consultant shall be registered with the Department of Industrial Relations in accordance with California Labor Code Section 1725.5, and has provided proof of registration to City prior to the Effective Date of this Agreement. Consultant shall not perform work with any subcontractor that is not registered with DIR pursuant to Section 1725.5. Consultant and subcontractors shall maintain their registration with the DIR in effect City of Laguna Niguel, CA - RFP - Energy Assessment Study Page 25 of 38 throughout the duration of this Agreement. If the Consultant or any subcontractor ceases to be registered with DIR at any time during the duration of the project, Consultant shall immediately notify City.

D. Compliance Monitoring. Pursuant to Labor Code Section 1771.4, Consultant's Services are subject to compliance monitoring and enforcement by DIR. Consultant shall post job site notices, as prescribed by DIR regulations.

E. Copies of Per Diem Wages. Pursuant to Labor Code Section 1773.2, copies of the prevailing rate of per diem wages for each craft, classification, or type of worker needed to perform the Agreement are on file at City Hall and will be made available to any interested party on request. Consultant acknowledges receipt of a copy of the DIR determination of such prevailing rate of per diem wages, and Consultant shall post such rates at each job site covered by this Agreement.

F. Penalties. Consultant shall comply with and be bound by the provisions of Labor Code Sections 1774 and 1775 concerning the payment of prevailing rates of wages to workers and the penalties for failure to pay prevailing wages. The Consultant shall, as a penalty to City, forfeit $200.00 for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the DIR for the work or craft in which the worker is employed for any public work done pursuant to this Agreement by Consultant or by any subcontractor.

G. Payroll Records. Consultant shall comply with and be bound by the provisions of Labor Code Section 1776, which requires Consultant and each subcontractor to: (1) keep accurate payroll records and verify such records in writing under penalty of perjury, as specified in Section 1776; (2) certify and make such payroll records available for inspection as provided by Section 1776; and (3) inform City of the location of the records.

H. Apprentices. Consultant shall comply with and be bound by the provisions of Labor Code Sections 1777.5, 1777.6 and 1777.7 and California Administrative Code Title 8, Section 200 et seq. concerning the employment of apprentices on public works projects.

Consultant shall be responsible for compliance with these aforementioned Sections for all apprenticeable occupations. Prior to commencing work under this Agreement, Consultant shall provide City with a copy of the information submitted to any applicable apprenticeship program.

Within 60 days after concluding work pursuant to this Agreement, Consultant and each of its subcontractors shall submit to City a verified statement of the journeyman and apprentice hours performed under this Agreement.

Debarment or Suspension. The Consultant shall not perform work with any Subcontractor that has been debarred or suspended pursuant to California Labor Code Section 1777.1 or any other federal or state law providing for the debarment of contractors from public works. The Consultant and Subcontractors shall not be debarred or suspended throughout the duration of this Contract pursuant to Labor Code Section 1777.1 or any other federal or state law providing for the debarment of contractors from public works. If the Consultant or any City of Laguna Niguel, CA - RFP - Energy Assessment Study Page 26 of 38 subcontractor becomes debarred or suspended during the duration of the project, the Consultant shall immediately notify City.

J. Overtime. Consultant acknowledges that eight hours labor constitutes a legal day's work. Consultant shall comply with and be bound by Labor Code Section 1810.

Consultant shall comply with and be bound by the provisions of Labor Code Section 1813 concerning penalties for workers who work excess hours. The Consultant shall, as a penalty to City, forfeit $25.00 for each worker employed in the performance of this Agreement by the Consultant or by any subcontractor for each calendar day during which such worker is required or permitted to work more than eight hours in any one calendar day and 40 hours in any one calendar week in violation of the provisions of Division 2, Part 7, Chapter 1, Article 3 of the Labor Code. Pursuant to Labor Code section 1815, work performed by employees of Consultant in excess of eight hours per day, and 40 hours during any one week shall be permitted upon public work upon compensation for all hours worked in excess of eight hours per day at not less than one and one-half times the basic rate of pay.

Workers' Compensation. California Labor Code Sections 1860 and 3700 provide that every employer will be required to secure the payment of compensation to its employees.

In accordance with the provisions of California Labor Code Section 1861, Consultant hereby certifies as follows: "I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract." L. Subcontractors. For every subcontractor who will perform work on the project, Consultant shall be responsible for such subcontractor's compliance with Chapter 1 and Labor Code Sections 1860 and 3700, and Consultant shall include in the written contract between it and each subcontractor a copy of those statutory provisions and a requirement that each subcontractor shall comply with those statutory provisions. Consultant shall be required to take all actions necessary to enforce such contractual provisions and ensure subcontractor's compliance, including without limitation, conducting a periodic review of the certified payroll records of the subcontractor and upon becoming aware of the failure of the subcontractor to pay his or her workers the specified prevailing rate of wages. Consultant shall diligently take corrective action to halt or rectify any failure.

M. Indemnification. To the maximum extent permitted by law, Consultant shall indemnify, hold harmless and defend (at Consultant's expense with counsel reasonably acceptable to City) City, its officials, officers, employees, agents and independent contractors serving in the role of City officials, and volunteers from and against any demand or claim for damages, compensation, fines, penalties or other amounts arising out of or incidental to any acts or omissions arising out of the payment of prevailing wages by any person or entity (including Consultant, its subcontractors, and each of their officials, officers, employees and agents) in connection with any work undertaken or in connection with the Agreement, including without limitation the payment of all consequential damages, attorneys' fees, and other related costs and expenses. All duties of Consultant under this Section shall survive the termination of the Agreement.

City of Laguna Niguel, CA - REP - Energy Assessment Study Page 27 of 38

11. Non-Assignability. Neither this Agreement nor any rights, title, interest, duties or obligations under this Agreement may be assigned, transferred, conveyed or otherwise disposed of by Consultant without the prior written consent of City.

Subcontracting Subject to Approval. Consultant may not subcontract any portion of the work required by this Agreement to other persons or firms unless Consultant first obtains the written consent of City to engage in such subcontracting.

13. Independent Consultant. Consultant is and shall at all times remain as to City a wholly independent contractor. Neither the City nor any of its officers, employees, or agents, shall have control over the conduct of the Consultant or any of the Consultant's officers, employees, or agents. Consultant shall not at any time or in any manner represent that it or any of its otticers, employees, or agents, are officers, employees, or agents, of the City. Except as specified in writing by City, Consultant shall have no authority, expressed or implied, to act on behalf of City, and Consultant shall have no authority, expressed or implied, to incur any obligation or liability against the City. Consultant shall be responsible for and pay all taxes and other payments for Consultant and its employees for Federal and State income taxes, including withholding of taxes, Social Security, worker's compensation insurance, State disability insurance, unemployment insurance, and all other similar items.

14. Administration. This Agreement will be administered by the Public Works Department.

The Public Works Director or his or her designee shall be considered the Project Manager and shall have the authority to act for the City under this Agreement. The Project Manager shall represent the City in all matters pertaining to the services to be rendered pursuant to this Agreement.

15. Progress. Consultant is responsible to keep the Project Manager informed on a regular basis regarding the status and progress of the work being performed pursuant to this Agreement.

16. Cooperation of City. City agrees to comply with all reasonable requests of Consultant and provide access to all documents reasonably necessary for the performance of Consultant's duties under this Agreement.

Confidentiality. No news releases, including photographs, public announcements, or confirmations of the same, of any part of the work being performed pursuant to this Agreement shall be made without prior written approval of the City. The information which results from performing the services required by this Agreement is to be kept confidential unless the release of information is authorized by the City.

18. Conflicts of Interest. Consultant represents that it is not currently engaged in and has not contracted to perform work on the behalf of any party or parties whose interests are or would reasonably appear to be adverse to those of City. In the event that Consultant should discover that it has represented, is representing or is being requested to perform work for a party or parties with interests adverse to those of City, Consultant shall immediately notify City City of Laguna Niguel, CA - RFP - Energy Assessment Study Page 28 of 38 in writing of such situation. Said notification requirement shall apply to all work performed by Consultant for another party or parties, with interests adverse to those of City, on a subcontract as well as on a contract or other basis. Further, the Consultant 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 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. If subject to the Act, Consultant shall comply with all requirements of the Act. Failure to do so constitutes a material breach and is grounds for termination of this Agreement by the City. Consultant agrees not to provide services within the City boundaries for any other public or private entities without prior written approval from City.

19. Indemnification.

A. General Indemnity. To the fullest extent permitted by law, Consultant shall, at its sole cost and expense, defend, hold harmless and indemnify City and its elected officials, officers, attorneys, agents, employees, designated volunteers, successors, assigns and those City agents serving as independent consultant in the role of City officials (collectively "Indemnitees"), from and against any and all damages, costs, expenses, liabilities, claims, demands, causes of action, proceedings, expenses, judgments, penalties, liens, and losses of any nature whatsoever, including fees of accountants, attorneys, or other professionals and all costs associated therewith and the payment of all consequential damages (collectively "Liabilities"), in law or equity, whether actual, alleged or threatened, which arise out of, are claimed to arise out of, pertain to, or relate to the acts or omissions of Consultant, its officers, agents, servants, employees, subcontractors, materialmen, consultants or their officers, agents, servants or employees (or any entity or individual that Consultant shall bear the legal liability thereof) in the performance of this Agreement, including the Indemnitees' active or passive negligence, except for Liabilities arising from the sole negligence or willful misconduct of the Indemnitees as determined by court decision or by the agreement of the Parties.

Consultant shall defend the Indemnitees in any action or actions filed in connection with any Liabilities with counsel of the Indemnitees' choice, and shall pay all costs and expenses, including all attorneys' fees and experts' costs actually incurred in connection with such defense. Consultant shall reimburse the Indemnitees for any and all legal expenses and costs incurred by Indemnitees in connection therewith.

For Design Professional Services. If Consultant's services hereunder include the performance of professional services by a "design professional," as the term is defined under California Civil Code § 2782.8(c), then to the fullest extent permitted by law, Consultant shall, at its sole cost and expense, indemnify and hold harmless the Indemnitees, and each of them, from and against any and all Liabilities, including fees of accountants and other professionals, and all costs associated therewith, and reimbursement of attorneys' fees and costs of defense, whether actual, alleged or threatened, to the extent arising out of, pertaining to, or relating to, in whole or in part, the negligence, recklessness or willful misconduct of the Consultant, and/or its officers, agents, servants, employees, subcontractors, contractors or their officers, agents, servants or employees (or any entity or individual for whom the Consultant shall bear legal liability) in the performance of design professional services under this Agreement.

Notwithstanding the foregoing and as required by Civil Code § 2782.8(a), in no event shall the City of Laguna Niguel, CA - RFP - Energy Assessment Study Page 29 of 38 cost to defend the Indemnitees that is charged to Consultant, exceed Consultant's proportionate percentage of fault.

C. Subconsultants. Consultant shall obtain executed indemnity agreements with provisions identical to those in this Section from each and every subconsultant or any other person or entity involved by, for, with or on behalf of Consultant in the performance of this Agreement.

D. Insurance Requirements not Limiting. City does not, and shall not, waive any rights that it may possess against Consultant because of the acceptance by City, or the deposit with City, of any insurance policy or certificate required pursuant to this Agreement.

The indemnities in this Section shall apply regardless of whether or not any insurance policies are determined to be applicable to the Liabilities, tax, assessment, penalty or interest asserted against City.

E. Survival and Offset. The provisions of this Section 19 shall survive the Consultant under this Agreement any amount due to City from Consultant as a result of Consultant's failure to promptly pay to City any reimbursement or indemnification arising under this subparagraph.

20. Liability Insurance.

A. Insurance Policies. Without limiting Consultant's indemnification of City as described in paragraph 19, Consultant shall obtain and provide and maintain at its own expense during the term of this Agreement policy or policies of liability insurance of the type and amounts described below and satisfactory to the City Attorney. Such policies shall be signed by a person authorized by that insurer to bind coverage on its behalf and must be filed with the City prior to exercising any right or performing any work pursuant to this Agreement.

Named Additional Insured. The City of Laguna Niguel and its Council members, officers, officials, employees, agents, and volunteers shall be named as additional insureds under the policies required by subparagraphs General and Auto Insurances for all liability arising from Consultant's performance of services pursuant to this Agreement. This insurance shall be primary to any insurance maintained by the City. City insurance shall not contribute to any judgment rendered against the City.

C. Insurance Coverage. Prior to the commencement of any services hereunder, Consultant shall provide to City certificates of insurance with original endorsements, and copies of policies, if requested by City, of the following insurance coverage:
1) General Liability Insurance. Consultant shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily injury, personal injury, and property damage. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO "insured contract" language will not be accepted.

City of Laguna Niguel, CA - RFP - Energy Assessment Study Page 30 of 38 Automobile Liability Insurance. Consultant 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 the Consultant arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non-owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident.

Professional Liability (errors & omissions) Insurance. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of $1,000,000 per claim and in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the effective date of this agreement and Consultant agrees to maintain continuous coverage through a period no less than three (3) years after completion of the services required by this agreement.

Workers' Compensation Insurance. Consultant shall maintain Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at least $1,000,000). Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers.

D. Waiver of subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City and shall require similar written express waivers and insurance clauses from each of its subconsultant.

Duration of coverage. Consultant shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Work hereunder by Consultant, his agents, representatives, employees or subcontractors.

Primary/noncontributing. Coverage provided by Consultant shall be primary and any insurance or self-insurance procured or maintained by City shall not be required to contribute with it. The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of the City before the City's own insurance or self-insurance shall be called upon to protect it as a named insured.

G. City's rights of enforcement. In the event any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement.

City of Laguna Niguel, CA - RFP - Energy Assessment Study Page 31 of 38 H. Acceptable insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or is on the List of Approved Surplus Line Insurers 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.

I. Enforcement of contract provisions (non estoppel). Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of noncompliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder.

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 Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Consultant.

Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.

K. Notice of cancellation. Consultant agrees to oblige its insurance agent or broker and insurers to provide to City with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each required coverage.

Additional insured status. General liability policies shall provide or be endorsed to provide that City and its officers, officials, employees, agents, and volunteers shall be additional insureds under such policies. This provision shall also apply to any excess/umbrella liability policies.

M. Prohibition of undisclosed coverage limitations. None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to City and approved of in writing.

N. Separation of Insureds. A severability of interests provision must apply for all additional insureds ensuring that Consultant's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the insurer's limits of liability.

The policy(ies) shall not contain any cross-liability exclusions.

O. Pass Through Clause. Consultant agrees to ensure that its subcontractor, subcontractors, and any other party involved with the project who is brought onto or involved in the project by Consultant, provide the same minimum insurance coverage and endorsements required of Consultant. Consultant agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. Consultant agrees that upon request, all agreements with consultants, subconsultant, and others engaged in the project will be submitted to City for review.

City of Laguna Niguel, CA - RFP - Energy Assessment Study Page 32 of 38 P. City's right to revise specifications. The City reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the Consultant ninety (90) days advance written notice of such change. If such change results in substantial additional cost to the Consultant, the City and Consultant may renegotiate Consultant's compensation.

Q 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 specifications unless approved by City.

R. Timely notice of claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant's performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. and expense, antidal insurands of insurance, which in procure and maintain, a tessa gost its proper protection and prosecution of the Work.

21. Nondiscrimination by Consultant. Consultant represents and agrees that Consultant, its affiliates, subsidiaries, or holding companies do not and will not discriminate against any subcontractor, consultant, employee, or applicant for employment because of race, color, religious creed, sex, gender, gender identity, gender expression, marital status, national origin, ancestry, age, physical disability, mental disability, medical condition, genetic information, sexual orientation or any protected class or basis prohibited by law. Such nondiscrimination shall include, but not be limited to, the following: employment, upgrading, demotion, transfers, recruitment, recruitment advertising, layoff, termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship.

22. City's Rights to Employ Other Consultants. City reserves the right to employ other consultants in connection with the subject matter of the Scope of Services.

23. Consultant's Records. Consultant shall keep records and invoices in connection with it work performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records. Consultant 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 under this Agreement.

Notices. Every notice, demand or request (hereinafter described in this Section as a "Notice") that is given by either party to the other under or in connection with this Agreement shall be in writing, and shall be given: (i) by email, to the applicable email address specified below; or (ii) by United States certified mail, postage prepaid, return receipt requested, or by same-day or overnight reputable private courier, addressed to the party to be served at its address below. Either party may change its email address for Notices, or its address for Notices, by a Notice given in accordance with this Section. Notices shall be deemed to have been delivered: (i) if sent by email, on the next business day, provided the sender's email City of Laguna Niguel, CA - RFP - Energy Assessment Study Page 33 of 38 system confirms has been delivered or does not indicate that delivery did not occur, as applicable; (ii) if sent by certified mail, three (3) days after deposit into the U.S. mail; and (iii) if sent by private courier, one business day after deposit with the courier for overnight delivery (unless the delivery service indicates to the sender that delivery has not occurred, in which case delivery shall be deemed to occur when the delivery service indicates to the sender that it has actually occurred).

CITY: City of Laguna Niguel
Attn: Public Works Director
30111 Crown Valley Parkway
Laguna Niguel, CA 92677
Email:

CONSULTANT: Company Name
Attn: Name
Business Mailing Address
City, State, Zip Code
Email:

25. Entire Agreement. This Agreement supersedes any and all agreements, either oral or written, between the parties hereto with respect to the rendering of services described in Scope of Services hereto by Consultant for City and contains all of the covenants and agreements between the parties with respect to the rendering of such services. Each party to this Agreement acknowledges that no representations, inducements, promises, or agreements, orally or otherwise, have been made with regard to such services by any party, or anyone acting on behalf of any party, which are not embodied herein, and that no other agreement, statement, or promise regarding such services not contained in this Agreement shall be valid or binding. Any modification or amendment of this Agreement will be effective only if it is in writing and signed by both parties to this Agreement.

26. Exhibits. The Exhibits referenced in this Agreement are attached hereto and incorporated herein by this reference as though set forth in full in the Agreement.

27. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California. Any legal action in which enforcement of the terms and conditions of this Agreement is requested, or in which it is alleged that a breach of this Agreement has taken place, shall be filed and prosecuted in the County of Orange, California.

28. Termination. City may terminate this Agreement, without cause or penalty, by providing written notice to the Consultant that the Agreement is terminated. Said written notice shall be provided at least fifteen (15) days in advance of the termination date. Unless terminated as provided herein, this Agreement shall continue in effect for the period set forth in Section 3.

29. Breach of Agreement. If Consultant defaults in the performance of any of the terms or conditions of this Agreement, it shall have ten (10) days after service upon it of written notice of such default in which to cure the default by rendering a satisfactory performance. In the event that Consultant fails to cure its default within such period of time, City shall have the right, notwithstanding any other provision of this Agreement, to terminate this Agreement without City of Laguna Niguel, CA - RFP - Energy Assessment Study Page 34 of 38 further notice and without prejudice to any other remedy to which it may be entitled at law, in equity, or under this Agreement. The failure of City to object to any default in the performance of the terms and conditions of this Agreement shall not constitute a waiver of either that term or condition or any other term or condition of this Agreement.

30. Attorney Fees. If any legal proceeding, including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, the prevailing party will be entitled to reasonable attorney's fees, which may be set by the court in the same action or in a separate action brought for that purpose, in addition to any other relief to which that party may be entitled.

Severability. If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way.

32. Successors and Assigns. The terms and conditions of this Agreement shall be binding on the successors and assigns of the parties to this Agreement.

Authority to Sign. The person(s) executing this Agreement on behalf of the Consultant warrants and represents that they the authority to execute this Agreement on behalf of the Consultant and have the authority to bind the Consultant to the performance of the obligations hereunder. (REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
City of Laguna Niguel, CA - RFP - Energy Assessment Study Page 35 of 38 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
"CITY"

CITY OF LAGUNA NIGUEL
By: —
Tamara S. Letourneau
City Manager
ATTEST:

Marissa J. Asistin
City Clerk

APPROVED AS TO FORM BY THE

CITY ATTORNEY FOR THE

CITY OF LAGUNA NIGUEL,

CALIFORNIA
Nicholas Ghirelli
Interim City Attorney
"CONSULTANT"

COMPANY NAME
By:_
Print Name:

Title: _
By: _
Print Name:

Title: _
City of Laguna Niguel, CA - RFP - Energy Assessment Study Page 36 of 38 EXHIBIT "A"

SCOPE OF SERVICES & COST PROPOSAL
City of Laguna Niguel, CA - RFP - Energy Assessment Study Page 37 of 38 EXHIBIT "B"

SCHEDULE
City of Laguna Niguel, CA - RFP - Energy Assessment Study Page 38 of 38

ATTACHMENT B
Proposals Evaluation Summary
City of Laguna Niguel
Public Works Department
30111 Crown Valley Parkway, Laguna Niguel, CA 92677
(949) 362-4337 - www.cityoflagunaniguel.org/pw
RFP Name: Citywide Energy Assessment Study
RFP Issue Date: September 7, 2022
RFP Due Date: October 31, 2022
No. of Bidders: 7
Evaluation Summary
Firm Name Evaluation Average Evaluation Ranking
KW Engineering 91 1
Energy Resources Integration LLC 84 2
BASE Energy, Inc. 79 3
P2S, Inc. 75 4
Abraxas Energy Consulting 66 5
Tetra Tech 65 6
Energenz LLC dba NV5, Inc. 62 7

ATTACHMENT C
Professional Services Agreement with
Kilowatt Engineering, Inc. dba KW Engineering

AGREEMENT FOR PROFESSIONAL SERVICES

BETWEEN CITY OF LAGUNA NIGUEL AND
KILOWATT ENGINEERING, INC.

THIS AGREEMENT FOR PROFESSIONAL SERVICES ("Agreement") is made and entered into 07/01/2023 by and between CITY OF LAGUNA NIGUEL, a California municipal corporation ("City") and Kilowatt Engineering, Inc. dba kW Engineering, a California Corporation ("Consultant'"). City and Consultant may be referred to individually as "Party" or collectively as "Parties." In consideration of the mutual promises and covenants made by the Parties and contained herein and other consideration, the value and adequacy of which are hereby acknowledged, the Parties agree as follows:

ARTICLE 1. SERVICES OF CONSULTANT

1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, Consultant shall provide those services specified in the "Scope of Services" attached hereto as Exhibit A and incorporated herein by this reference, which may be referred to herein as the "services" or "work" hereunder. As a material inducement to City entering into this Agreement, Consultant represents and warrants: a) all services set forth in the Scope of Services will be performed in a competent and satisfactory manner; b) all materials used for services will be both of good quality as well as fit for the purpose intended; and, c) Consultant shall follow the highest professional standards and practices in performing the services required hereunder.

1.2 Consultant's Proposal and City's RFP. Consultant's proposal or bid for this Agreement ("Consultant's Proposal"), dated October 31, 2022, shall be incorporated herein by this reference as though fully set forth herein. City circulated a Request for Proposals for the services provided for herein on September 7, 2022. City's Request for Proposals ("City's RFP"), which was responded to by Consultant's Proposal, shall be incorporated herein by this reference as though fully set forth herein. The Scope of Services shall include the scope of services or work included both in Consultant's Proposal as well as in City's RFP. In the event of any inconsistency or any conflict between the terms of Consultant's Proposal (for scope of services or work, or schedule of performance), and the terms of City's RFP (for scope of services or work, or schedule of performance), the Consultant's Proposal shall govern, unless this Agreement provides otherwise. In the event of any inconsistency or any conflict between the terms of Consultant's Proposal, and this Agreement, the terms of this Agreement shall govern. No other terms and conditions from Consultant's Proposal, other than description of scope of services or work, as well as description of schedule of performance, shall apply to this Agreement, unless specifically agreed to by City in writing.

1.3 Compliance with Law. All services rendered hereunder shall be provided in accordance with all ordinances, resolutions, statutes, rules and regulations of City and any federal, State or local governmental agency having jurisdiction in effect at the time services are rendered.

City, and its elected and appointed officers, employees, agents, designated volunteers, attorneys, successors and assigns shall not be liable at law or in equity for failure of Consultant to comply with this Section.

1.4 Licenses, Permits, Fees and Assessments. Consultant shall obtain and maintain at its sole cost and expense such licenses, permits and approvals as may be required by law for the -1-
performance of the services required by this Agreement. Consultant shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for Consultant's performance of the services required by this Agreement, and shall indemnify, defend and hold harmless City against any such fees, assessments, taxes, penalties or interest levied, assessed or imposed against City hereunder.

1.5 Additional Services and Compensation. City shall have the right at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes to the work by altering, adding to or deducting from said work. No such extra work may be undertaken unless a written order, consistent with both Section 9.4 as well as the Laguna Niguel Municipal Code, is first given by City to Consultant, incorporating therein any adjustment in the Contract Sum for the actual costs of the extra work and/or the time to perform this Agreement, which said adjustments are subject to the written approval of Consultant. It is expressly understood by Consultant that the provisions of this Section shall not apply to services specifically set forth in the Scope of Services or reasonably contemplated therein. Consultant hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope of Services may be more costly or time consuming than Consultant anticipates and that Consultant shall not be entitled to additional compensation therefor. City may in its sole and absolute discretion have similar work done by other consultants.

1.6 Familiarity with Work. By executing this Agreement, Consultant represents and warrants Consultant: a) has thoroughly investigated and considered services to be performed, b) has carefully considered how services should be performed, and c) fully understands the facilities, difficulties and restrictions attending performance of services under this Agreement.

1.7 Software and Computer Services. If the Scope of Services includes the provision and/or installation of any software, computer system, or other computer technology, Consultant represents and warrants that it is familiar with and/or has inspected City's current infrastructure, equipment, computer system and software and that the software, computer system, or other computer technology provided and/or installed by Consultant under this Agreement is compatible, and shall be fully functional, with such infrastructure, equipment, computer system and software of City. Consultant acknowledges that City is relying on this representation by Consultant as a material consideration in entering into this Agreement.

1.8 Prevailing Wages. If services include any "public work" or "maintenance work," as those terms are defined in California Labor Code section 1720 et seq. and California Code of Regulations, Title 8, section 16000 et seq., and if the total compensation is $1,000 or more, Consultant shall pay prevailing wages for such work and comply with the requirements in California Labor Code sections 1720 et seq., 1770 et seq. and 1810 et seq., and all other applicable laws. To the maximum extent permitted by law, Consultant's obligations in Section 5.3 (Indemnification) expressly apply to acts or omissions arising out of, or incidental to, the payment of prevailing wages by any person or entity (including Consultant, its subcontractors, and each of their officers, employees and agents) in connection with any services, including without limitation the payment of all consequential damages, attorneys' fees, and other related costs and expenses.

All duties of Consultant pursuant to this section shall survive termination of the Agreement.

1.9 Special Requirements. Additional terms and conditions of this Agreement, if any, which are made a part hereof are set forth in the "Special Requirements" attached hereto as Exhibit -2-
B and incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit B and any other provisions of this Agreement, the provisions of Exhibit B shall govern.

ARTICLE 2. COMPENSATION AND METHOD OF PAYMENT
Contract Sum. Subject to any limitations set forth in this Agreement, City agrees to pay Consultant the amounts specified in the "Schedule of Compensation" attached hereto as Exhibit C and incorporated herein by this reference. The total compensation (excluding the Contingency Sum), including reimbursement for actual expenses, shall not exceed One Hundred Fourteen Thousand Five Hundred Fifty-Five Dollars ($114,555) ("Compensation Sum"), unless additional compensation is approved pursuant to Section 1.5. This Agreement includes a contingency amount equal to 20 percent of the Compensation Sum ("Contingency Sum") to account solely for additional work, or unforeseen conditions, related to the services. The total compensation (including the Contingency Sum), including reimbursement for actual expenses, shall not exceed One Hundred Thirty-Seven Thousand Four Hundred Sixty-Six Dollars ($137,466) ("Contract Sum"), unless additional compensation is approved pursuant to Section 1.5. The Consultant shall obtain written approval from the City for any use of the Contingency Sum.

Compensation may include reimbursement, for actual and necessary expenditures, if both specified in the Schedule of Compensation, as well as approved by City in advance. Upon expiration of original term of the Agreement, if term is extended (pursuant to Section 3.2 or otherwise), fees and rates may only be increased both pursuant to Section 9.4 as well as subsequent to negotiation between the Parties on a reasonable increase. The maximum of such increase shall be no greater than the CPI increase (Orange County area for the applicable period of time. City has no obligation or duty to provide any such increase. The Contract Sum shall include the attendance of Consultant at all project meetings reasonably deemed necessary by City. Consultant agrees that if Consultant becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the work or services, Consultant shall promptly notify the City Representative of said fact, circumstance, technique or event and the estimated increased or decreased cost related thereto.

2.2 Invoices. Unless some other method of payment is specified in Exhibit B, Special Requirements, in any month in which Consultant wishes to receive payment, no later than the first business day of such month, Consultant shall submit to City, in a form approved by City's Finance Director, an invoice for services rendered prior to the date of the invoice. By submitting an invoice for payment under this Agreement, Consultant is certifying compliance with all provisions of this Agreement. Except as provided in Sections 7.3, 7.4 and 7.5, City shall pay Consultant for all expenses stated thereon which are approved by City pursuant to this Agreement generally within thirty (30) days, and City will use its best efforts to make payment no later than forty-five (45) days, from the submission of an invoice in an approved form. In the event any charges or expenses are disputed by City, the original invoice shall be returned by City to Consultant for correction and resubmission. Review and payment by City for any invoice provided by Consultant shall not constitute a waiver of any rights or remedies provided herein or any applicable law. Each invoice is to include (unless otherwise specified by City): 1) line items for all personnel describing the work performed, the number of hours worked, and the hourly rate; 2) line items for all materials and equipment properly charged to the services; 3) line items for all other approved reimbursable -3-
expenses claimed, with supporting documentation; and 4) line items for all approved subcontractor labor, supplies, equipment, materials, and travel properly charged to the services.

ARTICLE 3. PERFORMANCE SCHEDULE

3.1 Time of Essence. Time is of the essence in the performance of this Agreement.

3.2 Term. Unless earlier terminated in accordance with Article 7 of this Agreement, this Agreement shall continue in full force and effect until completion of the services. The term of this Agreement may be extended administratively (with total cumulative extension no greater than two years), by the City pursuant to Section 9.4 and without the need for further approval by the City Council, if the Consultant's performance is satisfactory and it is in the best interest of the City.

3.3 Schedule of Performance. Consultant shall commence the services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all services within the time period(s) established in the "Schedule of Performance" attached hereto as Exhibit D and incorporated herein by this reference.

3.4 Force Majeure. The time period(s) specified in the Schedule of Performance for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including City, (with the express exception of delays arising from the impact of COVID-19 and its variants to the extent such impact is foreseeable or should have reasonably been foreseeable), if Consultant shall within ten (10) days of the commencement of such delay notify City in writing of the causes of the delay.

City shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the enforced delay when and if in the judgment of City such delay is justified. City's determination shall be final and conclusive upon the Parties to this Agreement. In no event shall Consultant be entitled to recover damages against City for any delay in the performance of this Agreement, however caused, Consultant's sole remedy being extension of this Agreement pursuant to this Section.

ARTICLE 4. COORDINATION OF WORK

4.1 Consultant Representative. The Consultant Representative is Antonio Huizar, Project Manager, 562-760-7793, [email protected], who is authorized to act on Consultant's behalf with respect to the work or services specified herein and to make all decisions in connection therewith. It is expressly understood that the experience, knowledge, capability and reputation of the representative was a substantial inducement for City to enter into this Agreement.

Therefore, the representative shall be responsible during the term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the services hereunder. For purposes of this Agreement, the representative may not be replaced nor may their -4-
responsibilities be substantially reduced by Consultant without the express written approval of City.

4.2 City Representative. The City Representative is such person as designated by the City Manager or her designee. The City Representative shall be the primary person on behalf of City responsible for the administration of the Agreement. It shall be Consultant's responsibility to assure that the City Representative is kept informed of both the progress of the performance of the services as well as any decisions which must be made by City.

4.3 Approvals from City. City approvals or actions, pursuant to the authority of this Agreement, may be made (unless otherwise specified) either by the City Manager, the Public Works Director, or by the City Representative (or by their respective delegates as provided for in writing).

Independent Contractor. Neither City, nor any of its officers, employees or agents, shall have any control over the manner or means by which Consultant, or its officers, employees, agents or subcontractors, perform the services required herein, except as otherwise set forth herein. Consultant shall perform all services required herein as an independent contractor of City and shall remain under only such obligations as are consistent with that role. Consultant shall not at any time or in any manner represent that it, or any of its officers, employees, agents or subcontractors, are officers, employees or agents of City. City shall not in any way or for any purpose become or be deemed to be a partner of Consultant in its business or otherwise or a joint venturer or a member of any joint enterprise with Consultant. Consultant shall not incur or have the power to incur any debt, obligation or liability whatever against City, or bind City in any manner. Consultant represents and warrants that the personnel used to provide services to City pursuant to this Agreement shall at all times be under Consultant's exclusive control and direction.

No City employee benefits shall be available to Consultant, its officers, employees, agents or subcontractors, in connection with the performance of this Agreement. City shall not be liable for compensation or indemnification to Consultant, its officers, employees, agents or subcontractors, for injury or sickness arising out of performing services hereunder. In the event that Consultant or any officer, employee, agent, or subcontractor of Consultant providing services under this Agreement claims or is determined by a federal or state agency, a court of competent jurisdiction, or the California Public Employees' Retirement System, to be classified as other than an independent contractor for City, then Consultant shall indemnify, defend, and hold harmless City for the payment of any and all assessed fines, penalties, judgments, employee and/or employer contributions, and any other damages and costs assessed to City as a consequence of, or in any way attributable to, the assertion that Consultant, or any officer, employee, agent, or subcontractor Consultant used to provide services under this Agreement, is/are employees of City.

Subcontracting or Assignment. The experience, knowledge, capability and reputation of Consultant, its principals and employees were a substantial inducement for City to enter into this Agreement. Therefore, without express written approval of City, Consultant shall not contract with any other entity to perform in whole or in part services required hereunder without express written approval of City, and neither this Agreement nor any interest herein may be transferred or assigned. No approved transfer shall release Consultant, or any surety or insured of Consultant, of any liability hereunder without express written consent of City. -5-
ARTICLE 5. INSURANCE AND INDEMNIFICATION
Insurance Coverages. Prior to commencement of any services under this Agreement, and without limiting Consultant's indemnification obligation to City, Consultant shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to City, for the duration of the Agreement, primary policies of insurance of the type and amounts below, issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or is on the List of Approved Surplus Line Insurers 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 City, which shall cover all elected and appointed officers, employees, agents, designated volunteers, attorneys, successors and assigns of City. City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Consultant ninety (90) days advance written notice of such change. If such change results in substantial additional cost to Consultant, City and Consultant may renegotiate Consultant's compensation.

Commercial General Liability Insurance. A policy of commercial general liability insurance, with coverage at least as broad as Insurance Services Office ("ISO") form CG 00 01, written on a per occurrence basis for bodily injury, personal injury and property damage. Defense costs must be paid in addition to limits. Coverage for an additional insured shall not be limited to its vicarious liability. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO "insured contract" language will not be accepted. Limits shall be no less than $1,000,000 per occurrence for all covered losses and no less than $2,000,000 general aggregate.

Worker's Compensation Insurance. A policy of worker's compensation insurance in such amount as will fully comply with the laws of the State of California and which shall indemnify, insure and provide legal defense for Consultant against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by Consultant in the course of carrying out the work or services contemplated in this Agreement.

Automobile Liability. A policy of comprehensive automobile liability insurance, at least as broad as ISO form CA 00 01, written on a per occurrence basis covering bodily injury and property damage in an amount not less than $1,000,000 combined single limit for each accident. Said policy shall include coverage for owned, non-owned, leased, hired cars and any automobile.
(d) Professional Liability. Professional liability insurance appropriate to Consultant's profession. This coverage may be written on a "claims made" basis and must include coverage for contractual liability. Any policy inception date, continuity date, or retroactive date must be before the effective date of this Agreement. The professional liability insurance required by this Agreement must be endorsed to be applicable to claims based upon, arising out of, or related to services performed under this Agreement. The insurance must be maintained for at least five (5) consecutive years following the completion of Consultant's services or the termination of this Agreement. During this additional 5-year period, Consultant shall annually and upon request of City submit written evidence of this continuous coverage. Limits shall be no less than $1,000,000 per claim and no less than $1,000,000 general aggregate. (e) Cyber Liability. Cyber liability insurance appropriate to Consultant's profession and the services hereunder, written on a per occurrence basis, with limits not less than $1,000,000 per occurrence/loss, and $2,000,000 in the aggregate. Coverage shall be sufficiently broad to respond to the duties and obligations undertaken by Consultant pursuant to this Agreement and shall include, but not be limited to, claims involving: infringement of intellectual property; copyright; trademark; invasion of privacy violations; data breach; electronic information theft, loss, damage, destruction, alteration or misuse; release of private information; extortion; and, network security. The policy shall provide coverage for breach response costs, regulatory fines and penalties, and credit monitoring expenses, with limits sufficient to respond to these obligations.

Excess Liability and Umbrella Liability Insurance. Excess liability insurance and/or umbrella liability insurance may be used to satisfy the obligations herein. If excess liability insurance is used then the policy shall meet all the requirements herein and be at least as broad as the primary coverages set forth herein. Such policy shall: 1) include a drop down feature requiring the policy to respond if primary insurance that would otherwise have applied proves to be uncollectible in whole or in part for any reason; 2) be payable-on-behalf-of as opposed to reimbursement; 3) have concurrency of effective dates with primary policies; 4) "follow form" to the underlying primary policies; and, 5) provide insureds, under primary policies required herein, shall be insureds under the excess liability policy.

Subcontractors. In the event Consultant subcontracts any portion of the work in compliance with Section 4.5 of this Agreement, Consultant shall either: 1) include each subcontractor as insureds under its policies of insurance required herein; or, 2) Consultant shall, upon request of City, furnish to City all documentation, required in Article 5 for Consultant, for each subcontractor. All coverages for subcontractors shall include all of the requirements herein.

5.2 General Insurance Requirements.
1) Proot of Insurance. Enforcement and Notice. No work or services und is Agreement shall commence until both Consultant has provided City with insuran certificates, endorsement forms and appropriate insurance binders evidencing the above insurance coverages, as well as said documentation is approved by City. City reserves the right to inspect complete, certified copies of, and endorsements to, all required insurance policies, at any time.

Any failure to comply with the reporting or other provisions of the policies including breaches or warranties shall not affect coverage provided to City. In the event any insurance policy required under this Agreement is cancelled or amended and the insurance policy is not replaced pursuant to subsection (b) below), or does not comply with Article 5, then: 1) City has the right but not the duty to obtain insurance required herein and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments; or, 2) City, notwithstanding any other provisions of this Agreement, may immediately terminate this Agreement. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant's performance under this Agreement, and that involve or may involve coverage under any of the required insurance policies. (b) Cancellation/Amendment. All of herein required policies of insurance shall provide the insurance may not be amended or cancelled by insurer or any Party hereto without providing thirty (30) calendar days prior written notice (with exception of ten (10) calendar days -7-
prior written notice for nonpayment of premium) to City. In the event any of said policies of insurance are amended or cancelled, Consultant shall, five (5) business days prior to the cancellation date, submit new evidence of insurance, or reinstatement of policy, in conformance with this Agreement to City.

Additional Insureds. The commercial general liability policy provided for in Section 5.1(a) and the automobile liability policy provided for in Section 5.1 (c) both shall name City and its elected and appointed officers, employees, agents and designated volunteers ("City Parties") as additional insureds and such coverage shall contain no special limitations on the scope of protection afforded to City and City Parties. A severability of interests provision must apply for all additional insureds ensuring that Consultant's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability, and policies of insurance shall not contain any cross-liability exclusions.

Primary, Subrogation, Contribution and Coverage. All of the above policies of insurance shall be primary insurance. The insurers (with exception of professional liability insurer) for above policies, Consultant and any subcontractors are all deemed hereof to waive all rights of subrogation and contribution they may have against City or City Parties, and their respective insurers, and all insurance policies required herein shall be endorsed to waive such rights. Any insurance maintained by City or City Parties will apply in excess of, and not contribute with, Consultant's insurance. If Consultant maintains broader coverage and/or higher limits than the minimum amounts provided herein, City requires and shall be entitled to the broader coverage and/or higher limits maintained by Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to City and City Parties.

None of the coverages required herein will be in compliance with this Agreement if they include any limiting endorsement of any kind that has not been first submitted to City and approved of in writing. Requirements of specific coverage features or limits contained herein 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.

Limitations, Self- Insured Retention and Deductibles. Consultant agrees hat requirements of Article 5 shall not be construed as limiting in any way the extent to which Consultant may be held responsible for the payment of damages to any persons or property resulting from Consultant's activities or the activities of any person or persons for which Consultant is otherwise responsible nor shall it limit Consultant's indemnification liabilities as provided in Section 5.3. All insurance policies must specify that where the primary insured does not satisfy any self-insured retention, any additional insured may satisfy the self-insured retention (without impairment of obligation of primary insured under this Agreement to satisfy any self- insured retention). Any deductibles or self-insured retentions must be declared to and approved by City. At City's option, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City and City Parties, or Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration, attorney's fees, defense expenses and claims.
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5.3 Indemnification.

General Obligations. Consultant agrees, to the full extent permitted by law, to indemnify, defend and hold harmless City and its elected and appointed officers, employees, agents, designated volunteers, attorneys, successors and assigns (each an "Indemnitee" and collectively, "Indemnitees") against, and will hold and save them and each of them harmless from, whether actual or threatened, any and all actions, either judicial, administrative, arbitration or regulatory claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities (herein "Claims or Liabilities") that may be asserted or claimed by any person, firm or entity arising out of or in connection with the negligent performance of the work, operations or activities provided herein of Consultant, its officers, employees, agents, subcontractors, or invitees, or any individual or entity for which Consultant is legally liable (each an "Indemnitor" and collectively, "Indemnitors"), or arising from Indemnitors' reckless or willful misconduct, or arising from Indemnitors' negligent performance of or failure to perform any term, provision, covenant or condition of this Agreement, and in connection therewith: 1) Consultant will defend any action or actions filed or threatened in connection with any such Claims or Liabilities, or at option of Indemnitee(s) will reimburse and pay for all costs and expenses, including legal costs and attorneys' fees, incurred by Indemnitee(s) in connection therewith; and, 2) Consultant will promptly pay any judgment rendered against Indemnitee(s) for any such Claims or Liabilities, and will save and hold Indemnitee(s) harmless therefrom.
successors, assigns and hehe or Consonant hend deal sturble ation herin of all hindimeon.

Consultant shall incorporate similar indemnity agreements as provided herein with its subcontractors, and if Consultant fails to do so Consultant shall be fully responsible to indemnify City hereunder therefor. Failure of City and/or City Parties (collectively "City" for solely this Section 5.3(b))) to monitor compliance with any of the indemnification provisions herein shall not be a waiver hereof. The indemnification provisions herein do not apply to claims or liabilities occurring as a result of City's sole negligence or willful misconduct, but, to the fullest extent permitted by law, shall apply to claims and liabilities resulting in part from City's negligence, except that design professionals' indemnity hereunder shall be limited to claims and liabilities arising out of the negligence, recklessness or willful misconduct of the design professional. The indemnification provided herein includes Claims or Liabilities arising from any negligent or wrongful act, error or omission, or reckless or willful misconduct of Indemnitors in the performance of professional services hereunder. Payment of invoices by City is not a condition precedent to enforcement of the indemnity obligation herein. In the event of any dispute between Consultant and City, as to whether liability arises from the sole negligence or willful misconduct of City, Consultant will be obligated to pay for City's defense until such time as a final judgment has been entered adjudicating City as solely negligent or responsible for willful misconduct.

Consultant will not be entitled in the absence of such a determination to any reimbursement of defense costs including but not limited to attorney's fees, expert fees and costs of litigation. City may offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant's failure to promptly pay to City any reimbursement or indemnification arising under Section 5.3 of this Agreement. Such offset, if any, does not satisfy any amount, greater than the offset, due to City from Consultant. -9-
Professional Liability. When the law establishes a professional standard of care for Consultant's services, to the fullest extent permitted by law (within the limitations, as applicable, of Civil Code section 2782.8), Consultant shall indemnify, defend and hold harmless Indemnitees against, and will hold and save them and each of them harmless from, whether actual or threatened, any and all Claims and Liabilities, consistent with all obligations provided for in this Section 5.3, to the extent same are caused in whole or in part by any negligent or wrongful act, error or omission, or reckless or willful misconduct of Indemnitors in the performance of professional services under this Agreement.

ARTICLE 6. RECORDS, REPORTS AND RELEASE OF INFORMATION

6.1 Records. Consultant shall keep, and require subcontractors to keep, such ledgers, books of accounts, invoices, vouchers, canceled checks, reports, studies or other documents relating to the disbursements charged to City and services performed hereunder ("books and records") as shall be necessary to perform the services required by this Agreement and enable City to evaluate the performance of such services. Any and all such books and records shall be maintained in accordance with generally accepted accounting principles (and, as applicable, maintained also in accordance with requirements of Labor Code section 1776), shall be complete and detailed, and shall be readily accessible. City shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts. Such books and records shall be maintained either for a period of no less than three (3) years following completion of the services hereunder, or for such period of time as required by applicable law, whichever period of time is longer. City shall have access to such books and records in the event any audit is required. Consultant shall fully cooperate with City in providing access to any and all Consultant records and documents if a public records request is made and disclosure is required by law including but not limited to the California Public Records Act.

Representalive repersing perfuman so striciodipal eques, andor as necesary for city be informed of both performance of services as well as any decisions which must be made by City.

6.3 Ownership of Documents. All drawings, specifications, maps, designs, photographs, studies, surveys, data, notes, computer files, reports, records, documents and other materials ("documents and materials") prepared (regardless of whether complete or incomplete) by Consultant, its officers, employees, agents and subcontractors in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of City and/or upon the termination of this Agreement, and Consultant shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership, use, reuse, or assignment of the documents and materials hereunder. Consultant may retain copies of such documents and materials under express condition that Consultant agrees such documents and materials are the sole property of City. All subcontractors shall provide for assignment to City of any documents and materials prepared by them, and in the event Consultant fails to secure such assignment, Consultant shall indemnify City for all damages resulting therefrom. Moreover, with respect to any Consultant documents and materials that may qualify as "works made for hire" as defined in 17 U.S.C. § 101, such documents and materials are hereby deemed "works made for hire" for City.
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6.4 Confidentiality and Release of Information. All information gained or work product produced by Consultant in its performance of this Agreement shall be considered confidential, unless such information is in the public domain prior to such gain or production.

Consultant shall not release or disclose any such information or work product to persons or entities other than City without prior written authorization from City. No news releases, including photographs, public announcements, or confirmations of the same, of any part of the work, shall be made without prior written authorization from City. Consultant, its officers, employees, agents or subcontractors, shall not, without prior written authorization from City or unless requested by the City Attorney, voluntarily provide documents, declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement. Response to a subpoena or court order shall not be considered "voluntary" provided Consultant immediately gives City notice of such court order or subpoena. If Consultant, or any officer, employee, agent or subcontractor of Consultant, provides any information or work product in violation of this Agreement, then City shall have the right to reimbursement and indemnity from Consultant for any damages, costs and fees, including attorney's fees, caused by or incurred as a result of Consultant's conduct. As concerning, regarding or related to, in any way, this Agreement and the work performed thereunder: a) Consultant shall immediately notify City should Consultant, its officers, employees, agents or subcontractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions or other discovery request, court order or subpoena from any party; b) City retains the right, but has no obligation, to represent Consultant or be present at any deposition, hearing or similar proceeding; and, c) Consultant agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Consultant, however, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response.

ARTICLE 7. ENFORCEMENT OF AGREEMENT AND TERMINATION

7.1 California Law. This Agreement shall be interpreted, construed and governed both as to validity and to performance of the Parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Orange, State of California, or any other appropriate court in such county, and Consultant agrees to submit to the personal jurisdiction of such court in the event of such action. In the event of litigation in a U.S.

District Court, venue shall lie exclusively in the Central District of California, Southern Division, in the County of Orange, State of California.

7.2 Suspension, or Termination, Prior to Expiration of Term. This Section shall govern any termination of this Agreement except as specifically provided in Section 7.4 for termination for cause. City reserves the right to terminate or suspend this Agreement, or any portion hereof, at any time, for any reason, with or without cause, upon ten (10) days' notice to Consultant, except that where termination or suspension is due to the fault of Consultant, the period of notice may be such shorter time as determined by City. Upon receipt of any notice of termination or suspension, Consultant shall immediately cease all services hereunder, unless the notice provides otherwise, or except such as specifically approved by City. Upon submittal of an invoice consistent with Section 2.2, Consultant shall be entitled to compensation for all services rendered prior to the effective date of the notice of termination or suspension and for any services authorized -11-
by City thereafter in accordance with the Schedule of Compensation, or such as may be approved by City, except as provided in Section 7.5. In event of termination, or suspension, without cause pursuant to this Section, there is no need to provide opportunity to cure pursuant to Section 7.3.

7.3 Default of Consultant and Opportunity to Cure. In the event that Consultant is in default under the terms of this Agreement, City shall not have any obligation or duty to continue compensating Consultant for any work performed after the date of default. Instead, City may give notice to Consultant of the default and the reasons for the default. The notice shall include the timeframe in which Consultant may cure the default. This timeframe is presumptively ten (10) days, but may be extended, or reduced, if circumstances warrant, as determined by City. During the period of time that Consultant is in default, City shall hold all invoices and shall, when the default is cured, proceed with payment on the invoices, without liability for interest. In the alternative, City may, in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Consultant does not cure the default by conclusion of noticed timeframe, City may immediately both terminate this Agreement with notice to Consultant as well as pursue the remedy in Section 7.4, without prejudice to any other remedy to which City may be entitled at law, in equity or under this Agreement. Any failure on the part of City to give notice of Consultant's default shall not be deemed to result in a waiver of City's legal rights or any rights arising out of any provision of this Agreement.

7.4 Termination for Default of Consultant. If termination is due to the failure of Consultant to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 7.3, take over the work and prosecute the same to completion by contract or otherwise, and Consultant shall be liable to the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated (provided that City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to Consultant for the purpose of set-off or partial payment of the amounts owed City therefor.

Retention of Funds. Consultant hereby authorizes City to deduct from any amount payable to Consultant (whether or not arising out of this Agreement) (i) any amounts the payment of which may be in dispute hereunder or which are necessary to compensate City for any losses, costs, liabilities, or damages suffered by City, and (ii) all amounts for which City may be liable to third parties, by reason of Consultant's acts or omissions in performing or failing to perform Consultant's obligation under this Agreement. In the event that any claim is made by a third party, the amount or validity of which is disputed by Consultant, or any indebtedness shall exist which shall appear to be the basis for a claim of lien, City may withhold from any payment due, without liability for interest because of such withholding, an amount sufficient to cover such claim. The failure of City to exercise such right to deduct or to withhold shall not, however, affect the obligations of Consultant to insure, indemnify, and protect City as elsewhere provided herein.

7.6 Waiver. Waiver by any Party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any Party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision or a waiver of any subsequent breach or violation of any provision of this Agreement. Acceptance by City of any work or services by Consultant shall not constitute a waiver of any of the provisions of this Agreement. No delay or omission in the exercise of any right or remedy by a non-defaulting Party on any default shall impair such right or remedy or be construed -12-
as a waiver. Any waiver by either Party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. Consultant acknowledges and agrees that any actual or alleged failure on the part of City to inform Consultant of non-compliance with any requirement of this Agreement imposes no additional obligations on City nor does it waive any rights hereunder. Payment to Consultant for work performed pursuant to this Agreement shall not be deemed to waive any defects in work performed by Consultant.

7.7 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party.

7.8 Legal Action. In addition to any other rights or remedies, either Party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement.

Notwithstanding any contrary provision herein, Consultant shall file a statutory claim pursuant to Government Code sections 905 et seg. and 910 et seq., in order to pursue a legal action under this Agreement.

7.9 Attornevs' Fees. If either Party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorneys' fees. Attorneys' fees shall include attorneys' fees on any appeal, and a Party entitled to attorneys' fees shall be entitled to all other reasonable costs for investigating such action, consultants' fees, taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. Such fees and costs shall be enforceable whether or not such action is prosecuted to judgment.

ARTICLE 8. INDIVIDUAL LIABILITY, CONFLICTS AND NON-DISCRIMINATION

8.1 Non-liability of City Officers and Employees. No officer or employee of City shall be personally liable to Consultant, or any successor in interest, in the event of any default or breach by City or for any amount which may become due to Consultant or to its successor, or for breach of any obligation of the terms of this Agreement.

8.2 Conflict of Interest. Consultant covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Consultant's performance of services under this Agreement. Consultant further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of City. Consultant agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement. City, in its sole discretion, shall determine the existence of a conflict of interest and may terminate this Agreement in the event such a conflict of interest exists upon sending Consultant written notice describing the conflict.

No officer or employee of City shall have any financial interest, direct or indirect, in this -13-
Agreement nor shall any such officer or employee participate in any decision relating to this Agreement which affects their financial interest or the financial interest of any corporation, partnership or association in which they are, directly or indirectly, interested, in violation of any State statute or regulation. Consultant warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement.

8.3 Covenant Against Discrimination. Consultant covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, gender, sexual orientation, marital status, national origin, ancestry or other protected class in the performance of this Agreement. Consultant shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, gender, sexual orientation, marital status, national origin, ancestry or other protected class.

ARTICLE 9. MISCELLANEOUS PROVISIONS

9.1 Notices. Any notice or other communication either Party desires or is required to give to the other Party or any other person in regards to this Agreement must be in writing and may be given either by (i) personal service, (ii) delivery by a reputable document delivery service, such as but not limited to, Federal Express, which provides a receipt showing date and time of delivery, or (iii) mailing in the United States Mail, certified mail, postage prepaid, return receipt requested, in the case of City addressed to Public Works Director at City of Laguna Niguel, 30111 Crown Valley Parkway, Laguna Niguel, CA 92677, and in the case of Consultant, to the person(s) at the address designated on the execution page of this Agreement. Either Party may change its address by notifying the other Party of the change of address in writing. Notice shall be deemed communicated at the time personally delivered or in seventy-two (72) hours from the time of mailing if mailed as provided in this Section.

9.2 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 against either Party by reason of the authorship of this Agreement, headings used, or any other rule of construction which might otherwise apply.

9.3 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, and such counterparts shall constitute one and the same instrument.

9.4 Integration; Amendment. This Agreement including the attachments hereto is the entire, complete and exclusive expression of the understanding of the Parties as to the Agreement.

It is understood that there are no oral agreements between the Parties hereto affecting this Agreement, and this Agreement supersedes and cancels any and all prior and contemporaneous negotiations, arrangements, agreements and understandings, if any, between the Parties, concerning this Agreement, and none shall be used to interpret this Agreement. No amendment to or modification of this Agreement shall be valid unless made in writing, approved by City and Consultant, and consistent with the Laguna Niguel Municipal Code.

9.5 Severability. Should a portion of this Agreement be declared invalid or unenforceable by a judgment or decree of a court of competent jurisdiction, such invalidity or -14-
unenforceability shall not affect any of the remaining portions of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the Parties unless the invalid provision is so material that its invalidity deprives either Party of the basic benefit of their bargain or renders this Agreement meaningless.

No Undue Influence. Consultant declares and warrants that no undue influence or pressure was used against or in concert with any officer or employee of City in connection with the award, terms or implementation of this Agreement, including any method of coercion, confidential financial arrangement, or financial inducement. No officer or employee of City has or will receive compensation, directly or indirectly, from Consultant, or from any officer, employee or agent of Consultant, in connection with the award of this Agreement or any work to be conducted as a result of this Agreement. Violation of this Section shall be a material breach of this Agreement entitling City to remedies in Section 7.4 and any and all remedies at law or equity.

Corporate Authority. The persons executing this Agreement on behalf of the Parties hereto warrant that (1) such Party is duly organized and existing, (i1) they are duly authorized to execute and deliver this Agreement on behalf of said Party, (iii) by so executing this [SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date and year first-above written.

CITY:

CITY OF LAGUNA NIGUEL, a California
municipal corporation
Tamara S. Letourneau, City Manager
ATTEST:

Marissa J. Asistin, City Clerk
APPROVED AS TO FORM:

Scott C. Smith, City Attorney
CONSULTANT:

Kilowatt Engineering, Inc. dba kW Engineering,
a California Corporation
By:

Name:

Title:

Name:

Title:

Address:

ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO CONSULTANT'S BUSINESS ENTITY.
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EXHIBIT A

SCOPE OF SERVICES
I. All work product is subject to review and acceptance by City, and must be revised by Consultant without additional charge to City until found satisfactory and accepted by City.

II. Consultant will perform services, provide the deliverables and reports and utilize the key personnel, described in Consultant's Proposal and City's RFP (refer to Section

1.2 for conflicts).

III. Consultant will also provide and implement the Web-based Tool as described in Consultant's Proposal on Pages 12 - 14 and associated training.

A(1)

EXHIBIT B

SPECIAL REQUIREMENTS
(Superseding Agreement Template)

NOT APPLICABLE
B(1)

EXHIBIT C

SCHEDULE OF COMPENSATION
I. City will compensate Consultant for the services performed upon submission of a valid invoice, as described in Section 2.2.

II. The total compensation for the services shall not exceed the total of the Contract Sum, as provided in Section 2.1 of this Agreement.

III. Consultant will be compensated for services provided pursuant to this Agreement in accordance with description in Consultant's Proposal.

C(1)

EXHIBIT D

SCHEDULE OF PERFORMANCE
I. Consultant shall perform all services and deliver all work products timely in accordance with the schedule described in Consultant's Proposal and City's RFP (refer to Section 1.2 for conflicts).

D(1)

Laguna Niguel City CouncilMay 16, 2023

Laguna Niguel City Council
May 16, 2023