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Rev. October 2023
Agreement No. 5059 (CCS)
CONTRACTUAL SERVICES AGREEMENT
This Contractual Services Agreement (“Agreement”), entered into as of _________________ (“Execution Date”), by and between the CITY OF SANTA MONICA, a municipal corporation (“City”), and WATER HEATER WAREHOUSE, LLC (“WATER HEATER WAREHOUSE”), is made with reference to the following:
RECITALS:
A. The City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of the City.
B. Southern California Regional Energy Network (“SoCalREN”) will provide funding as outlined in the executed SoCalREN Streamlined Savings Pathway Program Customer Agreements for Heat Pump Water Heater Project Incentive Distribution included in Exhibit A.
C. WATER HEATER WAREHOUSE is qualified to do business, and is doing business, in the State of California. WATER HEATER WAREHOUSE represents it has the background, knowledge, experience, and expertise necessary to provide the services set forth in this Agreement.
D. The City and WATER HEATER WAREHOUSE desire to enter into an agreement for the WATER HEATER WAREHOUSE to provide contractual services to the City as set forth herein, upon the terms and conditions set forth below.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows:
TERMS AND CONDITIONS
1. Term. This Agreement begins on the Execution Date and terminates on December 31, 2025, unless sooner terminated in accordance with Section 14.
2. WATER HEATER WAREHOUSE Services. WATER HEATER WAREHOUSE will perform all of the services (“Services”) described in Exhibit A, Scope of Services.
WATER HEATER WAREHOUSE will complete the Services in accordance with Exhibit B, Budget.
3. City Services. The City agrees to:
3.1 Make available to WATER HEATER WAREHOUSE any currently existing documents, data or information required for the performance of the Services.
3.2 Designate a representative authorized to act on behalf of City.
3.3 Promptly examine and render findings on all documents submitted for staff review by WATER HEATER WAREHOUSE.
4. Compensation. In accordance with the terms of the SoCalREN Streamlined Savings Pathway Program Customer Agreements, SoCalREN will compensate Docusign Envelope ID: A9F856DA-3A9C-4FAD-B428-2FEDF18BF956 12/4/2024
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WATER HEATER WAREHOUSE for the Services performed in an amount not to exceed $249,999 as set forth in Exhibit B. WATER HEATER WAREHOUSE understands and acknowledges that funding for Services is based on the City’s successful submission to the Streamlined Savings Pathway Program, and that compensation is tied to both the City and WATER HEATER WAREHOUSE’s participation in the Streamlined Savings Pathway Program. WATER HEATER WAREHOUSE further understands and acknowledges that the City will not compensate WATER HEATER WAREHOUSE for Services.
5. Invoices. WATER HEATER WAREHOUSE will invoice SoCalREN directly for the Services in accordance with Exhibit B. WATER HEATER WAREHOUSE shall also send the City a courtesy copy of each invoice at the time of invoicing SoCalREN.
6. Notices. All notices, demands, requests or approvals to be given under this Agreement, must be in writing and will be deemed served when delivered personally, by email, or on the third business day after deposit in the United States mail, postage prepaid, registered or certified, addressed as follows:
6.1All notices, demands, requests or approvals to the City:
Office of Sustainability and the Environment
City of Santa Monica
1685 Main St. 3rd Floor, Mail Stop 27
Santa Monica, California 90401
Attention: Elias Platte-Bermeo
Re: Agreement No. <5059>
with a copy to:
Santa Monica City Attorney’s Office
1685 Main Street, Third Floor
Santa Monica, California 90401
Attention: City Attorney
Re: Agreement No. <5059>
6.2All notices, demands, requests or approvals to WATER HEATER WAREHOUSE:
WATER HEATER WAREHOUSE
1114 E Truslow Ave
Fullerton, CA 92831
Attention: Chris Flores
[email protected]
Re: Agreement No. <5059>
7. Independent Parties. Both parties to this Agreement will be acting in an independent capacity and not as agents, employees, partners, or joint venturers of one another. Neither the City nor its officers or employees will have any control over Docusign Envelope ID: A9F856DA-3A9C-4FAD-B428-2FEDF18BF956 - 3 -
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the conduct of WATER HEATER WAREHOUSE or any of WATER HEATER WAREHOUSE’s agents, employees, or subcontractors, except as otherwise provided in this Agreement.
8. Integrated Agreement. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties. Any preliminary negotiations and agreements of any kind or nature are merged into this Agreement. No oral agreement or implied covenant may be held to vary the provisions of this Agreement. This Agreement may be modified only by written agreement signed by City and WATER HEATER WAREHOUSE, and approved as to form by the City Attorney.
9. Insurance. Prior to commencing work, WATER HEATER WAREHOUSE must procure, maintain and pay for insurance against claims for injuries to persons or damage to property that may arise from or in connection with the performance of the Services by WATER HEATER WAREHOUSE or WATER HEATER WAREHOUSE’s agents, representatives, employees or subconsultants for the duration of this Agreement. WATER HEATER WAREHOUSE must obtain insurance that, at a minimum, meets the requirements for insurance set forth in Exhibit C, Insurance Requirements and Verifications.
10.Defense and Indemnification.
10.1 WATER HEATER WAREHOUSE agrees to defend, indemnify, protect, and hold harmless the City, its agents, officers, boards and commissions, and employees (collectively, “City”) from and against any and all liability, claims, demands, damages, or costs, including but not limited to attorney’s fees, or payments for injury to any person or property (collectively, “Losses”) caused or claimed to be caused by the act, errors, and/or omissions of WATER HEATER WAREHOUSE, or WATER HEATER WAREHOUSE’s employees, agents, officers, and subcontractors. WATER HEATER WAREHOUSE’s responsibilities under this Section 10.1 include liability arising from, connected with, caused by, or claimed to be caused by the active or passive negligent acts or omissions of the City, which may be in combination with the acts or omissions of WATER HEATER WAREHOUSE, its employees, agents or officers, or subcontractors; provided, however, that WATER HEATER WAREHOUSE’s duty to defend, indemnify, protect and hold harmless shall not include any Losses arising from the sole negligence or willful misconduct of the City. Notwithstanding WATER HEATER WAREHOUSE’s obligation to defend City hereunder, City has the right to conduct its own defense and seek reimbursement for reasonable costs of defense from WATER HEATER WAREHOUSE, if City chooses to do so.
10.2 Enforcement Costs. WATER HEATER WAREHOUSE agrees to pay any and all costs the City incurs enforcing the indemnity, defense and hold harmless provisions set forth in Section 10.1.
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11. Prohibition Against Transfers.
11.1 WATER HEATER WAREHOUSE may not assign, hypothecate, or transfer this Agreement or any interest therein directly or indirectly, by operation of law or otherwise without the prior written consent of City. Any attempt to do so without the City’s consent will be null and void, and any assignee, hypothecatee or transferee acquires no right or interest by reason of such attempted assignment, hypothecation or transfer.
11.2 The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of WATER HEATER WAREHOUSE or of any general partner or joint venturer or syndicate member of WATER HEATER WAREHOUSE, if a partnership or joint venture or syndicate exists, which results in changing the control of WATER HEATER WAREHOUSE, will be construed as an assignment of this Agreement. Control means 50% or more of the voting power of the corporation.
12.Permits and Licenses. WATER HEATER WAREHOUSE, at its sole expense, must obtain and maintain during the term of this Agreement all required business and professional permits, licenses and certificates.
13.Waiver. A waiver of any breach of this Agreement may not be deemed a waiver of any subsequent breach of the same or any other term, covenant, or condition of this Agreement.
14.Default and Termination.
14.1 If WATER HEATER WAREHOUSE fails or refuses to perform any of the provisions of this Agreement, and if the default is not cured within a period of five days after the City’s written notice of default specifying the nature of the default, City may immediately terminate this Agreement by written notice to WATER HEATER WAREHOUSE.
14.2 The City has the option, at its sole discretion and without cause, of terminating this Agreement by giving ten days’ written notice to WATER HEATER WAREHOUSE. Upon termination of this Agreement, City will pay WATER HEATER WAREHOUSE any compensation earned and unpaid up to the effective date of termination.
15.Compliance with Law. WATER HEATER WAREHOUSE must comply with all laws of the State of California and the United States, and all ordinances, rules and regulations enacted or issued by City.
16.Discrimination. WATER HEATER WAREHOUSE may not discriminate in the provision of services hereunder because of race, color, religion, national origin, ancestry, sex, age, sexual orientation, marital status, AIDS or disability.
17.Nuisance. WATER HEATER WAREHOUSE may not maintain, commit, or permit the maintenance or commission of any nuisance in connection with the performance of services under this Agreement.
18.Records.
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18.1 WATER HEATER WAREHOUSE must maintain complete and accurate records with respect to costs, expenses, receipts and other such information required by the City for any services provided where compensation is on the basis of hourly rates, subcontractor costs, or other direct costs. WATER HEATER WAREHOUSE must keep the records, together with supporting documents, separate from other documents and records and maintain them for a period of three years after receipt of final payment.
18.2 WATER HEATER WAREHOUSE must maintain records in sufficient detail to permit an evaluation of the Services and in accordance with generally accepted accounting principles. WATER HEATER WAREHOUSE must clearly identify all records and make them readily accessible to the City. At the City’s request, WATER HEATER WAREHOUSE must provide records in an electronic format and, if necessary, access to any proprietary software to view such electronic records.
18.3 WATER HEATER WAREHOUSE must allow the City to have free access to WATER HEATER WAREHOUSE’s books and records and to inspect all work, data, documents, proceedings and activities related to this Agreement. The City has the right to examine or audit WATER HEATER WAREHOUSE’s records, and WATER HEATER WAREHOUSE agrees to cooperate with any examination or audit of its records. If a City audit discloses an error of 5% or more in information reported by WATER HEATER WAREHOUSE, WATER HEATER WAREHOUSE agrees to pay the cost of the City’s audit computed on the basis of four times the direct payroll of the audit staff completing the audit and audit report.
19.Work Product; Reports.
19.1 Any work product prepared or caused to be prepared by WATER HEATER WAREHOUSE or any subcontractor for this Agreement will be the exclusive property of City. No work product given to or prepared by WATER HEATER WAREHOUSE or any subcontractor pursuant to this Agreement may be made available to any individual or organization by WATER HEATER WAREHOUSE without prior written approval by City.
19.2 At the City’s request, WATER HEATER WAREHOUSE must furnish reports concerning the status of the Services.
20.Standard of Care. WATER HEATER WAREHOUSE agrees to provide all Services, including services performed by any subconsultant, in a manner consistent with the level of care and skill ordinarily exercised by members of WATER HEATER WAREHOUSE’s profession currently practicing in the same locality under similar conditions.
21.Subcontractors.
21.1 If WATER HEATER WAREHOUSE proposes to have any subcontractor perform any part of the Services, WATER HEATER WAREHOUSE must submit a request for approval in writing, describing the scope of work to be Docusign Envelope ID: A9F856DA-3A9C-4FAD-B428-2FEDF18BF956 - 6 -
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subcontracted, the name of the proposed subcontractor, and the total price or hourly rates used in preparing an estimated cost for the subconsultant’s services. The City, in its sole discretion, may grant or deny the request.
21.2 WATER HEATER WAREHOUSE will be responsible for the quality of any subcontractor’s work. Every subcontract or agreement of any kind entered into between WATER HEATER WAREHOUSE and any subcontractor (or between any subcontractor and others) must contain the following provision:
This agreement is consistent with all terms and conditions of the Agreement No. 5059 (CCS) entered into between the City of Santa Monica and WATER HEATER WAREHOUSE
on^^____________________.
22.Governing Law. The laws of the State of California, without regard to any choice of law provisions, will govern this Agreement.
23.Venue and Jurisdiction. The City and WATER HEATER WAREHOUSE agree that the Services will take place in Los Angeles County. Any litigation arising out of this Agreement may only be brought in either the United States District Court, Central District of California, or the Superior Court of California, County of Los Angeles, West District, as appropriate. The parties agree that venue exists in either court, and each party expressly waives any right to transfer to another venue. The parties further agree that either court will have personal jurisdiction over the parties to this Agreement.
24.Survival of Provisions and Obligations. Any provision of this Agreement, which by its nature must be exercised after termination of this Agreement, will survive termination and remain effective for a reasonable time. Any obligation that accrued prior to termination of this Agreement will survive termination of this Agreement.
25.Execution in Counterparts. This Agreement may be executed in counterparts with the same effect as if both parties hereto had executed the same document. All counterparts shall be construed together and shall constitute a single modification.
Any signature to this Agreement transmitted electronically through DocuSign or PDF shall be deemed an original signature and be binding upon the parties hereto (it being agreed that such electronic signature shall have the same force and effect as an original signature).
26.Exhibits. The following exhibits are incorporated by reference into this Agreement as though fully set forth herein.
Exhibit A Scope of Services
Exhibit B Budget
Exhibit C Insurance Requirements
In witness whereof, the parties have caused this Agreement to be executed the day and year first above written.
Docusign Envelope ID: A9F856DA-3A9C-4FAD-B428-2FEDF18BF956 12/4/2024
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ATTEST:
______________________________
DENISE ANDERSON-WARREN
City Clerk
APPROVED AS TO FORM:
______________________________
LANE DILG
City Attorney
CITY OF SANTA MONICA,
a municipal corporation
By:
______________________________
RICK COLE
City Manager
WATER HEATER WAREHOUSE
Corporation
#VENDOR
By:
________________________________
Docusign Envelope ID: A9F856DA-3A9C-4FAD-B428-2FEDF18BF956 12/4/2024
DOUGLAS SLOAN
City Attorney
Water Heater Warehouse, LLC
Owner
Chris Flores
12/4/2024
City Manager
12/4/2024
David White
Nikima Newsome
City Clerk
12/5/2024
Exhibit A
Scope of Services
Water Heater Warehouse will perform the work referenced below. Additional sites may be added to the scope of work if mutually agreed upon by the City and Water Heater Warehouse.
Summary:
Building Address Equipment Value
VAP – Teen Center Building 2200 Virginia
Avenue
50-gal Bradford White
RE2H50S10 HPWH
$14,598
VAP - Park Center Building
2200 Virginia
Avenue
50-gal Bradford White
RE2H50S10 HPWH
$16,549
Memorial Park - Gymnasium
1401 Olympic
Blvd
120-gal AO Smith CHP-120
HPWH
$29,980.80
Memorial Park – Fitness
Room
1401 Olympic
Blvd
50-gal Bradford White
RE2H50S10 HPWH
$14,361
Palisades Park - Camera
Obscura Building
1450 Ocean
Ave
50-gal Bradford White
RE2H50S10 HPWH
$11,549
Docusign Envelope ID: A9F856DA-3A9C-4FAD-B428-2FEDF18BF956 Detailed Scope for Virginia Avenue Park – Teen Center:
Docusign Envelope ID: A9F856DA-3A9C-4FAD-B428-2FEDF18BF956 Docusign Envelope ID: A9F856DA-3A9C-4FAD-B428-2FEDF18BF956 Detailed Scope for Other Sites:
Docusign Envelope ID: A9F856DA-3A9C-4FAD-B428-2FEDF18BF956 Docusign Envelope ID: A9F856DA-3A9C-4FAD-B428-2FEDF18BF956 Executed SoCalREN Streamlined Savings Pathway Program Customer Agreements:
Docusign Envelope ID: A9F856DA-3A9C-4FAD-B428-2FEDF18BF956 Docusign Envelope ID: A9F856DA-3A9C-4FAD-B428-2FEDF18BF956 Docusign Envelope ID: A9F856DA-3A9C-4FAD-B428-2FEDF18BF956 Docusign Envelope ID: A9F856DA-3A9C-4FAD-B428-2FEDF18BF956 Docusign Envelope ID: A9F856DA-3A9C-4FAD-B428-2FEDF18BF956 Exhibit B
Budget
See Exhibit A for a breakdown of budget for the work that Water Heater Warehouse will perform at various City of Santa Monica sites. Additional sites may be added to the scope of work if mutually agreed upon by the City and Water Heater Warehouse.
In accordance with the terms of the SoCalREN Streamlined Savings Pathway Program Customer Agreements, SoCalREN will compensate WATER HEATER WAREHOUSE for the Services performed in an amount not to exceed $249,999. WATER HEATER WAREHOUSE understands and acknowledges that funding for Services is based on the City’s successful submission to the Streamlined Savings Pathway Program, and that compensation is tied to both the City and WATER HEATER WAREHOUSE’s participation in the Streamlined Savings Pathway Program. WATER HEATER WAREHOUSE further understands and acknowledges that the City will not compensate WATER HEATER WAREHOUSE for Services.
WATER HEATER WAREHOUSE will invoice SoCalREN directly for the Services. WATER HEATER WAREHOUSE shall also send the City a courtesy copy of each invoice at the time of invoicing SoCalREN.
Docusign Envelope ID: A9F856DA-3A9C-4FAD-B428-2FEDF18BF956 Exhibit C
Contractual Services Agreement Insurance Requirements
Contractor shall procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work hereunder by the Contractor, its agents, representatives, employees or subcontractors.
Minimum Scope and Limits of Insurance
Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal and advertising injury, with limits of no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (Insurance Services Office Form CG 25 04) or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: Insurance Services Office Form CA 00 01 covering Code 1 (any auto), or if Contractor has no owned autos, Code 8 (hired) and Code 9 (nonowned), with limits of no less than $1,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation: Workers’ Compensation insurance as required by the State of California, with Statutory Limits and Employers’ Liability Insurance with limits of no less than $1,000,000 per accident for bodily injury or disease (see footnote #1).
If the Contractor maintains broader coverage or higher limits than the minimums shown above, the City of Santa Monica requires and shall be entitled to the broader coverage or higher limits maintained by the Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City of Santa Monica.
Other Insurance Provisions
1. The insurance policies are to contain, or be endorsed to contain, the following provisions:
a. Additional Insured Status: The City of Santa Monica, its officers, officials, employees and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on Docusign Envelope ID: A9F856DA-3A9C-4FAD-B428-2FEDF18BF956 behalf of Contractor including materials, parts, or equipment furnished in connection with such work or operations. CGL coverage can be provided in the form of an endorsement to the Contractor’s insurance (at least as broad as Insurance Services Office Form CG 20 10 11 85, or if not available, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38 and CG 20 37). b. Primary Coverage: For any claims related to this Agreement, the Contractor’s insurance shall be primary coverage as least as broad as Insurance Services Office Form CG 20 01 04 13 as respects the City of Santa Monica, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by the City of Santa Monica, its officers, officials, employees or volunteers shall be in excess of the Contractor’s insurance and shall not contribute with it. c. Notice of Cancellation: Each insurance policy required herein shall state that coverage shall not be cancelled except after notice has been given to the City of Santa Monica.
d. Waiver of Subrogation: Contractor hereby grants to the City of Santa Monica a waiver of any right of subrogation which any insurer of said Contractor may acquire against the City of Santa Monica by virtue of payment of any loss. Contractor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City of Santa Monica has received a waiver of subrogation endorsement from the insurer.
The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the City of Santa Monica for all work performed by the Contractor, its employees, agents and subcontractors.
Self-Insured Retentions
Self-insured retentions must be declared to and approved by the City of Santa Monica.
The City of Santa Monica may require the Contractor to purchase coverage with a lower retention or provide satisfactory proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the name insured or the City of Santa Monica.
Acceptability of Insurers
Insurance is to be placed with insurers authorized to conduct business in California with a current A.M. Best rating of no less than A:VII, unless otherwise acceptable to the City of Santa Monica.
Verification of Coverage
Docusign Envelope ID: A9F856DA-3A9C-4FAD-B428-2FEDF18BF956 Contractor shall furnish the City of Santa Monica with original certificates and amendatory endorsements (or copies of the applicable policy language effecting coverage provided by this clause). All certificates and endorsements are to be received and approved by the City of Santa Monica before work commences. However, failure to obtain required documents prior to the work beginning shall not waive the Contractor’s obligation to provide them. The City of Santa Monica reserves the right to require complete, certified copies of all required insurance policies, including the endorsements required herein, at any time.
Failure to Maintain Insurance Coverage
If Contractor, for any reason, fails to maintain insurance coverage which is required pursuant to this Agreement, the same shall be deemed a material breach of contract. The City of Santa Monica, at its sole option, may terminate this Agreement and obtain damages from the Contractor resulting from said breach.
Subcontractors
Contractor shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein. All exceptions must be approved in writing by the Risk Manager.
Footnotes
# 1: Workers’ Compensation insurance coverage is not required if the Contractor does not have employees. The Contractor must, however, execute the City’s Workers’ Compensation Coverage Exemption Declaration Form.
Docusign Envelope ID: A9F856DA-3A9C-4FAD-B428-2FEDF18BF956