HomeMy WebLinkAbout2008-239 Agrmt - PECI Portland Energy Conservation
Change a Light, Change the World
CFL Markdown Promotion Agreement
1. Service Contract
This Agreement is made and entered into by and between City of Ashland, the Client, and
. Portland Energy Conservation, Inc. (PECn:' the Consultant, listed below for specified services
provided by the Consultant to the Client. This Agreement shall remain in force only for the
duration of the period specified below, unless extended in accordance with this Agreement
(Term). All obligations incurred under this Agreement shall survive the Term until satisfied.
Project Name Change a Light, Change the W orId
(Change-a- Light Northwest)
Contract Period October 1, 2008 - September 30, 2009
..
Client Name City of Ashland
Client Representative Cathy Carhnill
Telephone Number (541) 552-118 ..<0":3
Address 20 East Main St
City, State Zip Ashland, OR 97520
Consultant Name Portland Energy Conservation, Inc. (PECI)
Telephone Number ( 503)248-4636
Address 1400 SW 510 Ave. #700
City, State, Zip Portland, Oregon 97201
Taxpayer Identification Number 93-0770824 -,
2. Term
The term of this Agreement (Term) shall commence on October 1, 2008 and continue in effect
until September 30, 2009, unless the Parties agree in writing to extend the Term, or unless this
Agreement is earlier terminated in accordance with the Early Termination provisions below.
3. Services
This Agreement covers the services specified in Attachment A Scope of Work, which is hereby
included and made a part of this Agreement. The Consultant agrees to perform the services
specified. in Attachment A in the manner and . within the time specified therejn. Except as
expressly provided elsewhere in this Agreement, any and all modifications or revisions to
Attachment A, including, but not limited to, additions, deletions and extensions must be in
writing and signed by both parties.
4. Billing and Payment
The Consultant shall be compensated by City of Ashland for the performance of those services
described in Attachment A, which is hereby included and made a part of this Agreement.
1
~ ~--L-
To ensure payment within 30 days after receipt by City of Ashland, the invoice for each month
must be submitted to City of Ashland within 10 days of receipt of r~tail sales data by PECI for
the month prior.
Submit all invoices to:
Attn: Cathy Cartmill .
City of Ashland
20 East Main St
Ashland, OR 97520
s. Documentation
The Consultant shall maintain records documenting all fees and expenses in excess of $5.00,
incurred either by Consultant or any subcontractor of Consultant in the performance of this
Agreement. During regular business hours and upon reasonable notice, City of Ashland, or its
designee, shall have the right to inspect and audit all records required to be maintained under this
Agreement.
6. Insurance
The Consultant, and any subcontractor engaged by Consultant in its performance of this
Agreement, shall carry and maintain fully paid commercial general liability, automobile liability
and workers compensation insurance. All policies shall be written only by insurers admitted to
do business in Oregon and having a rating of at least "A" and a financial rating of at least "VIII"
on the most current edition of Best's Key Rating Guide or comparable rating by another
generally recognized rating agency. All policies shall be endorsed to (a) specify ~ity of
Ashland as an additional insured to the full extent of its right to indemnification under this
Agreement, and (b) provide that City of Ashland shall be given no less than thirty (30) days
advance written notice of cancellation or material change in coverage. Certificates of insurance
shall be sent to City of Ashland before work begins.
1. Consultant shall obtain the following minimum insurance coverage (Required
Insurance(s)) prior to the Effective Date, at its expense, and keep the Required Insurances
in effect during the Term (except with respect to . Professional Liability Insurance, when
they shall be kept in effect for a period of the Term plus two years);
2. Workers' Compensation Insurance in compliance with statutory requirements;
3. Commercial General Liability Insurance (including contractual liability), on an
occurrence basis, with not less than $1,000,000 per occurrence for bodily injury and
property damage liability, with an annual aggregate limit of $2,000,000;
4. Professional Liability Insurance, includipg errors and omissions coverage, with a
per occurrence and aggregate limit of not less than $1,000,000, to protect against all loss
suffered by City of Ashland or third parties, including financial and consequential loss,
caused by error, omission, or negligent acts related to provision of the Services;
5. Commercial Automobile Liability Insurance, with a combined single limit, or the
equivalent of not less than $1,000,000 per occurrence, for bodily injury and property
damage with respect to Consultant's vehicles, whether owned, hired, or non-owned,
assigned to, or used by Consultant in connection with the Services; and
2
-,
6. Umbrella coverage in/ excess of tlitf Workers' Compensation Coverage B
(Employers' Liability), Commercial General Liability.
The Required Insurances shall be with insurance companies admitted to do business in the state
of Oregon and rated "A" or better by Best's. Insurance Ratin~. Consultant shall furnish City of
Ashland with certificates of insurance for each of the Required Insurances.
The Commercial General Liability, Commercial Automobile Liability, and Umbrella Coverage
shall (i) name City of Ashland, its directors, officers, and employees, as additional insured,
(ii) provide that it is primary insurance with respect to the interests of City of Ashland and that
any insurance maintained by City of Ashland is excess and not contributory~ (iii) include a
cross-liability and severability of interes.t clause, and (iv) shall include coverage for Hazardous
Substances.
In the event Contractor fails to maintain, or require its subcontractors to maintain, insurance
policies in compliance with this provision, City of Ashland may in its discretion either purchase
such insurance coverage and charge the premium to Contractor or treatsl1ch failure as an event
of default by Contractor and terminate this Agreement for breach of contract.
7. Governing Law, Venue and Attorney's Fees
The laws of the State of Oregon shall govern this agreement. Exclusive venue in case legal suit
or action is instituted to enforce compliance with any terms, covenants, or conditions of this
agreement shall lie in Jackson County, Oregon. Both parties. agree to submit to the personal
jurisdiction of any court of competent subject matter jurisdiction in Jackson County, Oregon. In
the event of legal suit or action, including any appeals there from, brought by either party against
the other to enforce any of the obligations hereunder or arising out of any' diSpute concerning the
terms and conditions hereby created, the losing party shall reimburse the prevailing party for its
reasonable attorney fees and costs incurred in the suit or action including investigation' costs,
expert witness fees and all costs of depositions. If any part of this agreement is found to be in
conflict with applicable laws, such parts shall be inoperative, null and void so far as it is in
conflict with said laws, but the remainder of this agreement shall be in full force and effect.
8. Good Faith NegotiationlMediation
Prior to filing suit or initiating arbitration on any dispute, which arises between the Parties under
or relating to this Agreement, the Parties agree to attempt to resolve the dispute through good
faith negotiation. If the dispute cannot be resolved through good faith negotiation, the Parties
agree to hire an independent, trained and' mutually acceptable mediator to mediate the dispute.
The cost of the mediator will' be shared equally by the Parties. The mediation shall be conducted
in. Ashland, Oregon.
9. Suspension of Work
Suspension by City of Ashland
City of Ashland may suspend, in writing~ all or a portion of Consultant's services under
Attachment A in the event unforeseen circumstances make nonnalprogress in the performance
of the Consultant's work in~visable in the opinion of City of. Ashland. Consultant may request
that the work be suspended by notifying City of Ashland, in writing, of circumstances which
3
-----r~
are interfering with normal progress of the work. The time for completion of the remaining work:
shall be extended by the number of days the work is suspended by City of Ashland,.un1ess both
parties can mutually agree upon a new completion time. In the event the period of suspension
exceeds 90 days, the terms of this Agreement shall be subject to renegotiation; provided,
however, that if such. renegotiation of a mutually acceptable replacement contract has not
occurred within 180 days after suspension (Renegotiation Period), then / eIther party may
terminate this Agreement in accordance with the early termination provision hereof: provided
further, that the failure to renegotiate this Agreement within the Renegotiation Period shall not'
be construed as a breach of the Agreement by either Party.
Suspension by Contractor
Contractor may suspend, in writing, all or any portion of its services under this Agreement, but
only if and to the extent City of Ashland fails to make timely payment in accordance with the
terms of this Agreement. City of Ashland shall have a period of sixty (60) days from the date
on which payment was due (Cure Period) within which to satisfy any arrearages in payment.
Contractor shall resume performance of any suspended services upon receipt of payment of any
arrearages from City. of Ashland within the Cure Period.
10. Early Termination
Early Termination of Agreement Prior to Expiration of the Term
Either party shall. have the right, but not the obligation, to terminate this Agreement, on sixty
(60) days written notice, in the event the other party's service or performance fails to conform to
the requirements of this Agreement. Contractor shall have the right, but not the obligation, to
terminate this Agreement, effective upon expiration of the Cure Period, in the event City of
Ashland fails to pay any arrearage within the Cure Period. Either Party shall have the right but
not the obligation, to terminate this Agreement in the event work is suspended under this
Agreement for a period in excess of 90 days and no renegotiation of this Agreement has occurred
within the Renegotiation Period. Any right of early termination shall be in addition to, not in
replacem~t of, any and all rights and remedies a party may have for breach of the Agreement by
the other Party.
11. Subcontractors
Consultant may contract with one or more qualified subcontractors (Subcontractor Agreement)
to perform a portion of the services specified in the Scope of Work; provided, however, that
Contractor shall remain solely responsible to City of Ashland for\all performance under this
Agreement and, provided further, that City of Ashland shall have no responsibility for the
review or supervision of the work of any subcontractor or for any payment to any subcontractor.
All subcontractor agreements shall require the subcontractor to comply with the invoicing,
insurance, suspension of work, audit, documentation, confidentiality and return of -records
obligations imposed on Contractor by this Agreement. No subcontractor shall be deemed to be a
third party beneficiary of this Agreement or to have any other rights under this Agreement
12. Relationship of Parties
Consultant is an independent contractor, and this Agreement is not intended to form a
, partnership or joint venture between the Parties. Individuals employed by Consultant are not
employees or agents of City of Ashland, nor are Consultant's subcontractors employees or
agents of City of Ashland. Each Party is solely responsible for payment of compensation to its
4
employees and personnel and will withhold and pay to the appropriate authorities all taxes,
contributions, and assessments imposed or required under all laws with respect to payments. The
Consultant, will require these terms in all agreements with subcontractors. for work undertaken
for this Agreement.
13. Return of Records
. On termination of the contract, the Consultant will consult with the project manager at City of
Ashland about whether pertinent records should be returned. If requested, the Consultant will
deliver to City of Ashland all records, reports, data memoranda, notes, models or publications
whether electronic or hard-copy, equipment and supplies of any nature, and receipts for any and
all billing made to City of Ashland that are in possession or under control of the Consultant,
prepared or acquired in the course of the contract with City of Ashland. Further, the Co~sultant
agrees not to keep or withhold such information or data, or reproductions of such information or
data that relate to the business activities of City of Ashland or to parties in a contract
relationship with City of Ashland. Alternatively, if the return of records and equipment or
supplies is not requested, Consultant agrees to retain these items for three years after the
completion of this contract and to notify the City of Ashland project manager at the end of that
time before disposing of them. Consultant shall include a provision substantially identical to the
foregoing in all its Subcontractor Agreements.
14. Indemnification
The parties hereto agree to defend, indemnify and hold one another harmless from and against
any and all liability, loss, expense, attorneys' fees, or claims for injury and/or damages arising
from or in any way connected to the performance of this Agreement, but only in proportion to
and to the extent such liability, loss, expense, attorneys' . fees, or claims for injury or damages are
caused by or result from the negligent or intentional acts or omissions of the indemnifying party,
its officers, agents or employees.
The Parties specifically agree that the provisions of this Section also apply to any claim of injury
or damage to the persons or property of the Consultant's employees. . Consultant acknowledges
and agrees that, as to such claims, the Consultant, with respect to City of Ashland, hereby
waives any right of immunity which Consultant may have under industrial insurance (Title 51
RCW as amended and under any substitute or replacement statute). This waiver was specifically
negotiated by the Parties, is solely for the benefit of the Parties and their successors and assigns,
and is not intended as a waiver of Consultant's right of immunity under said industrial insurance
for any other purpose.
15. Force Majeure
Notwithstanding anything contained in this Agreement to the contrary, neither Party will be
deemed liable or to be in default for any delay or failure in performance under this Agreement
deemed to result from acts of God, acts of civil and military authority, acts of public enemy, war,
or any like cause beyond the Parties' reasonable control.
16. Severability
Should any provision of this Agreement be held by a tribunal of competent jurisdiction to be
invalid or unenforceable, the remainder of the Agreement will remain in full force and effect.
5
17. Notices
Notices required to be made under this Agreement shall be served personally, by facsimile
transmission, by overnight courier to the address shown above, or by email, with a duplicate sent
by certified mail, return receipt requested. Notice shall be effective' only upon receipt by the
party being served.
18. Effective Date and Term
.
This Agreement, including its attachments, shall be effective immediately upon execution by
both parties. . /"
City of Ashland
PECI
S' ature . I
,e;,ftl/~I J. ())rtd~y~~{
Name
It I/O/Of;
Date ' ,
Signature
Name
Date
6
Attachment A
Scope of Work
Portland Energy Conservation, Inc. (PECI) 'will conduct the following tasks for City of A.shland
in support of a compact fluorescent (CFL) markdown promotion in connection with Bonneville
Power Administration's region-wide Change a Light, l Change the World promotion, during the
effective dates October 1, 2008 - September 30, 2009.
Task 1: Setup and Kickoff
· PECI will design and produce retail Point of Purchase (POP) materials for participating
retail locations,. including those in City of Ashland territory. Where appropriate, POP
materials will include a logo specific to City of Ashland.
· Marketing materials will be delivered to stores. Field representatives will support
participating retail stores in City of Ashland territory and provide on-site merchandising and
sales. associate training.
Task 2: Allocations and Estimates
· Retail locations in the program identified as selling bulbs to City of Ashland customers will
be assigned a percentage allocation which shall represent the share of sales attributed to City
of Ashland customers, and consequently the share of sales paid by City of Ashland.
· City of Ashland is required to review these allocations and make recommendations for
changes before sales are invoiced.
· PECI will provide an estimate of potential sales for the effective dates to CitY of Ashland,
using the determined store allocations.
Task 3: Sales Data Tracking
· Program staff will receive retail sales reports from partnering manufacturers and/or retailers,
and are specific to individual retail locations.
· Program staff will enter sales reports into the tracking database.
Task 4: Summary Report and Invoicing
· City of Ashland will receive detailed electronic reports of sales once a month. Sales will be
broken out by retailer and by individual product. This data will also be available in a hard
copy fonnat if requested.
· Invoices for CFL sales and administrative costs per unit sold within the prior month will be
sent to City of Ashland monthly. Invoicing is dependent upon PECI receiving sales data
reports from manufacturer/retailer partners in a timely manner, due on the 15th of each
month. However, City of Ashland will be 'invoiced by PECI within 10 working days of
receipt of sales data.
· Custom reporting is available upon request.
7
· City of Ashland will be invoiced for markdown and administration costs per CFL sold,
according to lamp type as follows:
Produd MIX ,-
Lamp Type Markdown AdmlnlStatlOn Total Cost
3-Way $ 2.25 $ 0.40 $ 2.65
A-Lamp $ 1.75 $ 0.40 $ 2.15
CC Candelabra $ 2.25 $ 0.40 $ 2.65
CFL Candelabra $ 1.75 $ 0.40 $ 2.15
Daylight $1.75/1.00 $ 0.40 $2.15/1.40
Dimmable Reflector $ 2.25 $ 0.40 $ 2.65
Globe $ 1~75 $ 0.40 $ 2.15
Outdoor $ 2.25 $ 0.40 $ 2.65
Reflector $2.25/1.75 $ 0.40 $2.6512.15
T2 Twist $ 1.25 $ 0.40 $ 1.65
Task 5: Bulk Purchasing
· City of Ashland can request bulk purchase of qualified CFL bulbs in quantities over 200
units for delivery to specified locations~.
· City of Ashland will be invoiced by PECI for full cost of bulbs plus a $0.40 per bulb
administrative fee.
· Actual cost, quantity and details of a bulk purchase will be detennined at the time of request.
Budget:
City of Ashland commits to fund (check one and fill in blank) the following, based upon proof
of sales by store at participating retailers in the attached store list:
o A maximum of promotional CFLs sold for the duration of the
promotion.
o Up to $ ^ in total costs for promotional CFLs sold for the
dur~tion of the promotion.
X All promotional CFLs sold for the duration of the promotion.
City of Ashland
Initial: ~
Dare: {[110M fa
/ I
Portland Energy Conservation, Inc.
Initial:
Date:
8
City of Ashland Estimated CFL Sales
10/1/2008 through 9/30/2009
Last Updated: 9/1912008
Bulb T
3-Way 39 $ $ $ 1,531.20
A-Lamp 96 $ $ $ 2,798.40
CC Candelabra 12 $ $ $ 143.62
CFL Candelabra 318 $ $ $ 7,375.10
Dayreght 558 $ $ $ 22,053.50
Dimmable Reflector 0 $ $ $ 0.00
Globe 268 $ 107.20 $ 469.00 $ 576.20 7,347.65
Outdoor 0 $ $ $ 0.00
Reflector 2,215 $ 886.00 $ 4,983.75 $ 5,869.75 84,707.39
T2 Twist 12 $ 4.80 $ 15.00 $ 19.80 397.06
Grand Total 3,518 $ 1,407.20 $ 7,154.50 $ 8,561.70 126,353.92
Bulb Tvne
3-Way 118 $ 47.20 $ 265.50 $ 312.70 4,634.43
A-Lamp 300 $ 120.00 $ 525.00 $ 645.00 8,716.22
CC Candelabra 35 $ 14.00 $ 78.75 $ 92.75 418.88
CFL Candelabra 987 $ 394.80 $ 1,727.25 $ 2,122.05 22,894.78
Daylight 1,727 $ 690.80 $ 2,626.25 $ 3,317 .05 68,216.90
Dimmable Reflector 0 $ - $ - $ - 0.00
Globe 845 $ 338.00 $ 1,478.75 $ 1,816.75 23,192.58
Outdoor 0 $ - $ - $ - 0.00
Reflector 6,888 $ 2,755.20 $ 15,498.00 $ 18,253.20 263,557.89
T2 Twist 36 $ 14.40 $ 45.00 $ 59.40 1,247.49
Grand Total 10,936 $ 4,374.40 $ 22,244.50 $ 26,tSfl:C~O 392,879.17
Of fl"i> X, e>r7(")\aJ<d COS+-
r.,
CITY RECORDER
Page 1 1 1
CITY OF
ASHLAND
20 E MAIN ST.
ASHLAND, OR 97520
(541) 488-5300
1
-m-
08685
-J
VENDOR:. 011374
PECI, PORTLAND ENERGY CONSERVAT
1400 SW 5TH AVENUE #700
PORTLAND, OR 97201
SHIP TO: Ashland Electric Department
(541) 488-5354
90 N MOUNTAIN
ASHLAND, OR 97520
FOB Point:
Terms: Net 30 days
Req. Del. Date:
Speciallnst:
Req. No.:
Dept.: ELECTRIC
Contact: Cathy Cartmill
Confirming? No
"ChanQe a LiQht, ChanQe the World"
CFL Markdown Specialty Promotion for FY
2009
27,000.00
BILL TO: Account Payable
20 EAST MAIN ST
541-552-2028
ASHLAND, OR 97520
SUBTOTAL
TAX
FREIGHT
TOTAL
27 0 0.00
0.00
0.00
27,000.00
~ ~_ ~ 'L- r7o//~
~orized Signature
VENDOR COPY
---------T --
CITY OF
ASHLAND
REQUISITION FORM
THIS REQUEST IS A:
D Change Order(existing PO #
Date of Request: 1/1 -10 -08 I
Required Date of Delivery/Service: 110 -1_ 08' I
P E: ex:: ( 1. r-+ l~ct 6tl U'~ ~. U> n S c...r \J ~~' t) 11 ~ .:r I'\c.)
1'100 5L.J 5 +--'\ t},\}L. ~ 100
1'~ t H CLI'\d I Df- 9-; 2-0 I
fh So 3 - 2- ~ <l - Y ~ 3 (. { A k
::J ~ C.J);"fio s .B I a. Lk.~
Vendor Name
Address
City, State, Zip
Telephone Number
Fax Number
Contact Name
SOLICITATION PROCESS
Small Procurement [g Sole Source 0 Invitation to Bid
o Less than $5,000 o Written findings attached (Copies on file)
o Quotes (Optional) IE Quote or Proposal attached
Coooerative Procurement 0 Reauest for ProDOsal
o State of ORIWA contract (Copies on file)
Intennediate Procurement o Other government agency contract 0 Soeciall ExemDt
o (3) Written Quotes 0 Copy of contract attached 0 Written findings attached
(Copies attached) 0 Quote or Prooosal attached
0 Contract # 0 Emeraency
0 Written findings attached
0 Quote or Proposal attached
DescrIption of SERVICES
,,' tC
~fH1,t., IL L"5 hr , ~S(., ~ L.Jo r tot
c.F L fY\ v-rt:-dow Il 5 f LC--\' Q..lkt r 1'0 mo--n 6Yl
~.oo,
Total Cost
-A,-I'
Per attached PROPOSAL
Item # Quantity
Unit
. Description of MATERIALS
Unit Price
Total Cost
Project Number _ _ _ _ _ _ . _ _ _
Account Number ~~~. Jt -12~ .~~. !!l~_IJ>_
*/tems and services must be charged to the appropriate account numbers for the financ/als to reflect the actual expenditures accurately.
D Per attached QUOTE
By signing this requisition form, I certify that the information provided above meets the City of Ashland public contracting requirements,
and the documentation can be provided upon request.. r(JJ'/JA . A~ .L.. L)
Employee Signatur&-4-S <A'<::\ ~ Supervisor/Dept. Head Signature: ~ v f
G: Finance\Procedure\AP\Forms\8 Reouisition form revised.doc
Uodated on: 3/21/2008
~UT