HomeMy WebLinkAboutr10329 agreement pg&e energyRESOLUTION NO. 10329 (2012 Series)
A RESOLUTION OF THE CITY OF SAN LUIS OBISPO AUTHORIZING A SERVICE S
AGREEMENT WITH PACIFIC GAS AND ELECTRIC COMPANY PURSUANT T O
CALIFORNIA GOVERNMENT CODE SECTION 421 7
WHEREAS,the City of San Luis Obispo desires to install certain Energy Efficiency an d
Renewable Energy Upgrades ; and
WHEREAS,Section 907 of the City Charter exempts energy projects from th e
requirements of Article IX of the City Charter ; and
WHEREAS,the State of California Government Code 4217 authorizes local
municipalities to enter into energy services and financing agreement, outside of the adopte d
procurement process, that the governing body finds best serves the public agency ; and
WHEREAS,the City Council desires to use the California Government Code 4217 as a
basis to negotiate contracts and possible financing for certain Energy Efficiency and Renewabl e
Energy Upgrades to utilize programs offered by its energy provider Pacific, Gas & Electri c
Company ("PG&E"); an d
WHEREAS,the City Council considered the aforementioned contracts with PG&E at a
public hearing during a regularly scheduled meeting on January 17, 2012, public notice of whic h
was given at least two weeks in advance .
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of San Lui s
Obispo as follows :
SECTION 1 .Findings :Based upon the City's staff report, which included projection s
for electrical energy rates from PG&E which provides electricity to the City of San Luis Obispo ,
and other evidence presented at the public hearing, the Council hereby finds :
1.The energy efficiency and renewable energy project subject to Government Code 421 7
and Article IX Section 907 of the City Charter are unique and provide benefits to the public ;
2.The anticipated cost to the City for the energy efficiency and renewable energy upgrade s
under the contract with PG&E will be less than the anticipated marginal cost to the City for th e
electrical energy that would have been consumed by the City in the absence of those purchases ;
3.The project is exempt from Article IX Section 901 of the City Charter and is allowed b y
Government Code 4217 as an energy efficiency and renewable energy project .
SECTION 2 .The City approves the agreement substantially in the form attached a s
Exhibit A .
R 10329
Resolution No . 10329 (2012 Series )
Page 2
SECTION 3 . The City Council authorizes the City Manager to execute the Servic e
Agreement and the Work Order with PG&E for the Investment Grade Analysis of Energ y
Efficiency and Renewable Energy Upgrades, subject to the City Attorney's approval as to th e
form of the agreements .
Upon motion of Council Member Ashbaugh, seconded by Council Member Carter, an d
on the following vote :
AYES :
Council Members Ashbaugh, Carter and Smith, Vice Mayor Carpenter an d
Mayor Mar x
NOES :
Non e
ABSENT : Non e
The foregoing resolution was adopted this 17 th day of January 2012 .
ATTEST :
Elaina Cano
City Clerk
Exhibit A
SERVICES AGREEMEN T
This Services Agreement is made and entered into as of , 2011 ("Effectiv e
Date")by and between with offices at
("Customer") and Pacific Gas and Electric Company, Californi a
corporation, with offices at 77 Beale Street, San Francisco, California 94105 ("PG&E"). Customer an d
PG&E shall each individually be referred to as a "Party" and together constitute the "Parties ."
RECITAL S
WHEREAS, Customer desires assistance in implementing energy conservation and managemen t
services and other energy-related projects and services at one or more of its facilities located in PG&E's
service territory ;
WHEREAS, PG&E desires to assist Customer implement the energy conservation measures a s
more fully set forth herein ; and
NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreement s
set out in this Agreement, Customer and PG&E agree as follows :
1 . DEFINITIONS .In addition to those definitions set forth elsewhere in this Agreement, the followin g
capitalized terms shall have the meanings set forth below :
1 .1 "Agreement" shall mean this Agreement, and all such Agreement's Exhibits, Work Orders an d
Change Orders, all of which are incorporated herein, as such Agreement, Exhibits, Work Orders o r
Change Orders may be amended, changed or modified from time to time .
1 .2 "Change" shall mean : (a) any material addition to, deletion from, suspension of or othe r
modification that materially affects the design, configuration, quality, or function of the Project or th e
Services ; (b) a change or modification to or repeal of an applicable law after the Effective Date, (c) dela y
or other demonstrable material adverse impact to the Work Order resulting from a Force Majeure Event ,
or (d) any applicable performance or compliance requirement which Customer may newly articulate o r
revise during the Term .
1 .3 "Change Order" shall mean a written document signed by the Parties that describes a Change t o
the Scope of Work or Work Order, and authorizes and directs PG&E to perform such Change . Th e
Change Order may also authorize the additional compensation, if any, to be paid PG&E to perform suc h
Change .
1 .4 "Investment Grade Audit" shall mean the detailed analysis of all or a portion of a Facility t o
determine the technical and financial feasibility of implementing, operating and maintaining one or mor e
ECMs at such Facility .
1 .5 "Energy Conservation Measures ("ECM")"means an energy conservation measure which ma y
include a feasibility study, engineering and design (e .g., Investment Grade Audit), operation an d
maintenance .
1 .6 "Facility(ies)" shall mean the above-ground buildings and related premises owned or leased b y
Customer as set forth in the applicable Delivery Order .
Page 1 of 14
Exhibit A
1 .7 "Force Majeure Event" shall mean any cause, act, event, condition or other occurrence materiall y
impacting the Work or the Schedule not caused by the Party asserting the Force Majeure Event and tha t
is beyond the control of such Party to avoid, overcome or remedy through the exercise of due diligenc e
and reasonable efforts . Without limiting the foregoing, the following are examples of Force Majeur e
Events : acts of God and the public enemy ; the relocation, repair, shut down, or construction of PG&E
transmission or distribution facilities ; flood, earthquake, tornado, storm, fire, power failures, epidemics ,
civil disobedience, labor disputes, shortage of components and supplies .
1 .8 "Material Changed Condition" shall mean the unforeseeable or unanticipated discovery of th e
presence of Hazardous Materials or other unanticipated or unforeseeable condition or circumstance, at o r
near a Facility or Project site that has occurred or has been discovered after the Work has commenced
that materially impacts the Schedule, the Work or PG&E's costs to perform the Work, was not caused by
PG&E and that PG&E could not have discovered through the exercise of reasonable due diligence . Onl y
by way of example, a Material Changed Condition includes but is not limited to (i) Hazardous Material s
or other differing and unexpected site conditions, surface or subsurface conditions, (ii) adverse weathe r
conditions unusual to the area where the Work is to be performed and that could not have bee n
anticipated and that materially impacts the Work or Schedule ; or (iii) unforeseeable material delays i n
Equipment, material deliveries or the availability of labor that materially impacts the Work or Projec t
Schedule .
1 .9 "Project" shall mean energy efficiency, energy conservation, energy management, energ y
production or other energy-related measures or projects ; or any other energy-related matter, measure o r
project that is, or will become, the subject of a Work Order .
1 .10 "Services" mean, collectively all activities to be performed by PG&E pursuant to this Agreemen t
to complete a Project, including, without limitation, preliminary and/or Investment Grade Audit, design ,
Equipment or materials procurement, construction, installation, testing, completion, maintenance an d
operation of a Project . Work shall also include all labor, services, Equipment fabrication, assembly ,
modification, repair and replacement, and other activities as the Parties may agree upon and are set fort h
in a Work Order .
1 .11 "Scope of Work" shall mean all of the Services to be performed by PG&E and/or it s
Subcontractors pursuant to the terms and conditions of a Work Order, and any Change Orders to a Wor k
Order, as well as all other efforts of PG&E and other entities with respect to such Work Order, for th e
implementation of an ECM alone or as part of a Project pursuant to the terms and conditions of thi s
Agreement and as specifically described in each Work Order and applicable Change Orders .
1 .13
"Subcontractor" shall mean any corporation, limited liability company, partnership, association ,
or individual hired by PG&E to perform Services .
1 .14
"Substantial Completion" shall mean the Project is generally capable of being used for or o f
achieving the purpose intended by the Work Order .
1 .15 "Work Order" means the document executed by both Parties to complete the Services identifie d
in such Work Order . Each Work Order shall be subject to the terms and conditions of this Agreemen t
and the terms and conditions set forth in such Work Order . If there is a conflict between the Work Orde r
or Change Orders and the terms and conditions of this Agreement, such Work Order/Change Order shal l
take precedence and shall establish the Scope of Work of each Project .
Page 2 of 14
Exhibit A
2.SCOPE.This Agreement sets forth the terms and conditions under which PG&E may assis t
Customer implement ECMs at one or more of Customer's Facilities through Work Orders . Thi s
Agreement sets forth the terms and conditions under which Work Orders may be entered into by th e
Parties . All Work Orders shall be subject to and governed by this Agreement .
3.RELATIONSHIP OF THE PARTIES .
3 .1 Independent Contractors .The Parties are independent contractors . Nothing herein shal l
be construed as creating any agency, partnership, or other form of joint enterprise between the Partie s
and neither Party may create any obligations or responsibilities on behalf of the other Party .
3 .2 Subcontractors .PG&E may subcontract its obligations hereunder to other persons o r
entities in order to perform the Services hereunder . PG&E agrees to impose on its Subcontractor s
obligations consistent with those set forth in this Agreement with respect to safety, security ,
confidentiality, insurance and indemnification. The fees and costs billed to Customer shall be inclusiv e
of any and all fees and compensation due to any Subcontractors .
3 .2 .1 Subcontractor Selection .PG&E may perform some or all of the Services under a
Work Order itself or through Subcontractors . Subcontractor selection shall be based on cost, experience ,
past performance, reliability and such other factors as practicably related to the Customer's needs .
3 .3
Project Management .
3 .3 .1 Authorized Persons .Customer and PG&E will each designate an employee who
is sufficiently experienced to provide the information and support necessary to the other party for th e
performance of this Agreement (the "Authorized Person"). The Authorized Person for each party shal l
be the primary point of contact for inquiries and requests . Each such Authorized Person shall provide th e
other with such information and assistance as may be reasonably requested by the other from time to tim e
for the purpose of the performance of this Agreement .
3 .3 .2 Approvals .The Authorized Person for each party will have the authority t o
issue, execute, receive, grant and provide any and all approvals, requests, notices and othe r
communications permitted, required or requested by the other party ; provided, however, that neithe r
Customer nor PG&E shall rely for any purpose on any oral communication not confirmed in writing b y
an Authorized Person within twenty-four (24) hours, and provided however, that neither Customer no r
PG&E shall rely for any purpose on any oral communication which would have the effect of amendin g
this Agreement .
4.SERVICES .
4 .1 General .Customer may request that PG&E assist Customer in the implementation o f
one or more of the ECMs at set forth in Exhibit A, which is attached hereto and incorporated b y
reference herein .
4 .1 .1 Preliminary Audit .At Customer's written request, PG&E or its Subcontracto r
will conduct, at no cost to Customer, a preliminary audit consisting of an on-site building investigatio n
and evaluation for a mutually agreeable Facility to determine if any significant energy conservatio n
opportunities exist and whether a further Investment Grade Audit is needed .
Page 3 of 14
Exhibit A
4 .1 .2 Investment Grade Audit .After reviewing the Preliminary Audit, the Parties may
enter into a Work Order setting forth a scope of work for a Investment Grade Audit ("IGA") to determin e
whether the ECMs proposed in the Preliminary Audit are feasible . The Work Order for the IGA shal l
specify the terms for completing the DAR and establish a price for the IGA . Customer shall pay for th e
IGA in accordance with the payment terms of this Agreement and the applicable Work Order . Unles s
otherwise agreed upon in the Work Order for the Investment Grade Audit, Customer shall provide PG&E ,
at Customer's sole cost and expense, legible and complete copies of all floor plans, drawings and an y
other documents deemed necessary by PG&E in order to provide the Investment Grade Audit ..
4 .1 .3 Design and Implementation Phase .After Customer's evaluation of the IGA ,
Customer may elect to proceed with the engineering and design phase . Prior to proceeding, the Partie s
shall agree upon a Work Order for all engineering and design services necessary for the implementation o f
a particular ECM, a time frame for the completion of these Services, and a price for the engineering an d
design work for said ECM (collectively, the "Design Services"). If Customer elects to proceed with th e
Implementation Phase as set forth below, the Design Services will be included in the total Project Cost o f
the ECM .
Upon completion of the Design Services, PG&E will provide an ECM implementatio n
proposal (the "Proposal"). Customer shall evaluate the Proposal for technical and price reasonableness . If
Customer elects to proceed with the ECM, the Parties will agree upon a scope of work with specifications ,
time of performance, ECM cost, source and cost of capital or financing, payment terms, amortizatio n
schedule and termination schedule which shall be set forth in a Work Order . If required, PG&E wil l
provide acceptable payment and performance bonds .
4 .1 .4 Assumptions .Customer understands that performance of the Services i s
dependent upon Customer's cooperation . Therefore, Customer agrees to use its best efforts to cooperat e
with PG&E in the performance of the Services and shall provide PG&E with timely access to, durin g
normal business hours, and use of Customer's personnel, facilities, data, Equipment, materials an d
information to the extent necessary for PG&E to perform the Services . Customer acknowledges an d
agrees that Work Orders may set forth additional details regarding PG&E's access to and use of th e
foregoing as well as Customer's computer systems and networks .
4 .2 Changes and Change Orders .If a Change has occurred the Parties shall, if reasonabl y
possible, agree on a Change Order . If the Parties are unable to agree on a Change Order, PG&E shal l
suspend its performance of the Services including the Change, until such time as the Parties '
disagreement has been resolved pursuant to Section 12 (Dispute Resolution).
4 .2 .1 Material Changed Condition .PG&E will give written notice to Customer of th e
discovery of Hazardous Materials on or near a Facility, or other condition or circumstance PG&E or it s
Subcontractor believes to be a Material Changed Condition . Neither PG&E nor its Subcontractor wil l
remove, remediate, repair or otherwise disturb any site, soil, subsurface conditions, Hazardous Material s
or other adverse impacts on the Services or the Facility until Customer has had a reasonable opportunit y
to investigate to determine whether a Material Changed Condition has occurred . If Customer reasonabl y
determines a Material Changed Condition has occurred, the Parties will, if reasonably possible, agree o n
a Change Order with respect to such Material Changed Condition . If the Parties fail to agree on a
Change Order relating to a Material Changed Condition, PG&E shall suspend Services until such time a s
the Parties have resolved the disagreement pursuant to Section12 (Dispute Resolution).
(a)Handling and Disposal of Hazardous Materials . Customer acknowledges an d
agrees that PG&E has no obligation to investigate or inspect the Facility for the presence of Hazardou s
Page 4 of 14
Exhibit A
Materials, or to identify, remove, dispose of, abate, or remediate Hazardous Materials . Customer shal l
have sole responsibility for the identification, removal, disposal, abatement or remediation of Hazardou s
Materials, and for the clean-up, transport and disposal of any fixtures, materials, equipment, o r
substances containing, exposed to or contaminated by Hazardous Materials, all in accordance wit h
applicable laws .
4 .2 .2 Unanticipated Conditions .If any unusual or unanticipated conditions exist or arise at th e
Site (such as Hazardous Materials, environmental conditions or pollution), which conditions woul d
involve the incurrence by PG&E of any expenses to correct such conditions, PG&E shall submit a
written request to Customer for Customer's prior written approval of the corrective work and payment o f
the related expenses . The additional Services resulting therefrom will be set forth in a Change Orde r
signed by both Parties .
4 .2 .3 Safety Waiver and Repair Services .If in the process of performing the Services ,
a condition is discovered at the Facility that, in the sole judgment of PG&E, (a) represents an extrem e
safety hazard to its worker's safety or other personnel, (b) may cause operational failure of the equipment
comprising the Facility, or (c) may cause damage to other equipment being served by the Facility, PG&E
will immediately notify Customer in writing of such condition and the Services necessary to remedy th e
condition . Customer will be asked to sign this written notification in the form of Exhibit B (Safety
Waiver). Failure or refusal to sign the Safety Waiver will relieve PG&E and its Subcontractors of an y
responsibility to perform the Services .
4 .3 .4 Customer Delay .If the performance of particular Services by PG&E depend s
upon approvals or other decisions by Customer, or Customer furnishing particular data, drawings ,
documents or other information, and Customer does not timely perform or provide the same, th e
minimum time estimate for PG&E's completion of the particular Services which are dependent thereo n
shall be extended by the period of Customer's delay with respect thereto .
4 .3 .5 Change Costs .Customer shall reimburse PG&E for those reasonable cost s
incurred by PG&E or its Subcontractor(s) to implement a Change in accordance with the Change Order .
These costs include, but are not necessarily limited to, increased costs for design and other professiona l
services, expenses and taxes, if any .
4 .3 .6 With respect to any Change Order made in accordance with this Section 4 ,
Customer acknowledges that PG&E and its Subcontractors shall not be obligated to commence and/o r
perform any Services pursuant to a Change Order unless and until PG&E has received the signed Chang e
Order and Customer has issued PG&E a Purchase Order for such Change Order .
4 .4 PG&E's Utility Obligations .Customer acknowledges that PG&E has an obligation t o
maintain, repair and service its own facilities, including those under the operation and control of th e
California Independent System Operator, in order to perform its duties as a public utility, whic h
obligation takes precedence over any obligations undertaken in this Agreement . Accordingly, if PG&E
determines at any time, in its sole discretion, that it requires any personnel or resources previousl y
committed to the performance of Services under a Work Order in order to maintain adequate service t o
PG&E's other customers or to fulfill its duties as a public utility, then PG&E shall have the right to diver t
the use of such personnel or resources to satisfy such requirements . If as a result of such action, PG&E i s
unable to perform its obligations under this Agreement and is unable to procure a third party to perfor m
the Services (or a portion thereof), then PG&E shall be excused from the performance of the Service s
affected by such action to the extent so affected . In that event, PG&E shall have no liability to Customer ,
and shall not be considered in default under this Agreement, for such failure to perform .
Page 5 of 14
Exhibit A
5.FACILITY SAFETY AND HAZARDOUS MATERIAL S
5 .1 Facility Safety .Customer shall be responsible for ensuring that the Facilities are safe fo r
PG&E personnel and Subcontractors performing Services at Customer's facilities . Customer shall als o
cooperate with PG&E personnel working on-site and shall promptly take such actions that may b e
requested by PG&E personnel to help ensure a safe working environment .
5 .2 Hazardous Materials .Prior to performing any Services at a Facility, Customer wil l
inform PG&E and Subcontractors of the presence of any Hazardous Materials of which Customer i s
aware exist inside the Facility (e .g., asbestos). If PG&E or its Subcontractor discovers any Hazardou s
Materials at or around the Facility after commencement of the Services, the procedures specified belo w
in Section 5 .3 shall apply . Neither PG&E nor its Subcontractors shall handle, remove, dispose of o r
remediate any Hazardous Materials absent Customer's prior written instructions and the execution of a
Change Order .
5 .3 If, during performance of the Services, PG&E or a Subcontractor reasonably believe s
that it has encountered or detected the presence of Hazardous Materials, PG&E will promptly sto p
performing the Services and notify Customer of such Hazardous Materials or conditions . Customer wil l
promptly investigate for the presence of Hazardous Materials and inform PG&E of the results of thi s
evaluation . PG&E will not resume the performance of the Services until the Hazardous Materials hav e
been removed, disposed of, abated or remediated to PG&E's reasonable satisfaction . Any delay o r
increase in the Services or costs as a result of the testing, presence, removal, disposal, abatement o r
remediation of Hazardous Materials shall be grounds for a Change Order .
6.COMPENSATION .
6 .1 Payment Terms .Customer shall pay PG&E for the Services performed in accordanc e
with payment terms set forth in the applicable Work Order . Unless otherwise set forth in the Work
Order, each payment made by Customer must reference this Agreement, the Work Order and invoic e
number and be mailed to PG&E to the attention of Accounts Payable .
6 .2 Late Payments .All late payments shall be subject to an interest charge, which is th e
greater of: (i) one and one half percent (1 .5%) per month, or (ii) the maximum legal rate . In the event
that any unpaid amounts are referred to collection, including but not limited to any applicable late fees ,
Customer shall reimburse PG&E for all costs and expenses of collection, including all reasonabl e
attorneys' fees and costs related thereto .
6 .3 Expenses .Customer agrees to reimburse PG&E for all expenses incurred in connectio n
with PG&E's performance of the Services, including but not limited to all travel and lodging expenses .
Expenses shall be invoiced at their actual cost and will be reflected on PG&E's invoices and shall be pai d
in accordance with the payment terms set forth in the applicable Work Order .
6 .4 Taxes .Customer shall be solely responsible for the payment of any and all sales, use ,
transfer, and other taxes and duties, whether state, federal, national or international, however designated ,
which are levied or imposed on PG&E because of the Services performed under this Agreement (othe r
than taxes based on PG&E's net income) ("Taxes"). If PG&E has the legal obligation to pay or collec t
Taxes for which Customer is responsible under this Section 5 .4, the appropriate amount shall be invoice d
to and paid by Customer unless Customer provides PG&E with a valid tax exemption certificat e
Page 6 of 14
Exhibit A
authorized by the appropriate taxing authority verifying that Customer is not required to pay those Taxe s
and is legally exempt .
8 . WARRANTIES AND WARRANTY DISCLAIMER S
8 .1 Customer Warranties .Customer represents and warrants to PG&E that : (a) it has the ful l
corporate right, power, and authority to enter into the Agreement and to perform its obligation s
hereunder ; (b) the terms of the Agreement and the performance by such Party of its duties an d
obligations hereunder, do not violate and will not cause a breach of the terms of any other agreement o r
any applicable law to which such Party is a party or by which it is subject or bound ; (c) when execute d
and delivered by such Party, the Agreement will constitute the legal, valid and binding obligation of suc h
Party, enforceable against such Party in accordance with its terms ; and (d) it is either the owner or lesse e
of the Facility and has all necessary rights to allow PG&E and Subcontractors access to such Facility s o
that they may perform the Services .
8 .2 PG&E Limited Warranties .
8 .2 .1 PG&E warrants that the Services will be performed in a commercially reasonabl e
manner consistent with the level of care and skill exercised by others when performing Services of a
similar nature under similar circumstances . Unless otherwise agreed to by PG&E in writing, th e
warranty period for Services furnished hereunder shall be for a period of twelve (12) months from th e
date of Substantial Completion ("Service Warranty Period").
8.2 .2 Remedies .Customer must notify PG&E of any non-conformity or defect in the Service s
within the Service Warranty Period . If Customer notifies PG&E within the Services Warranty Period ,
and PG&E confirms the Services were not performed in accordance with Section 8 .2 .1, then PG&E, in it s
sole discretion, will either re-perform the non-conforming Services within a commercially reasonabl e
period of time at PG&E's cost and expense or (b) refund the applicable fees paid to PG&E by Custome r
for the non-conforming Services . THIS SECTION 8 .2 .2 STATES CUSTOMER'S SOLE AN D
EXCLUSIVE REMEDY AND PG&E'S SOLE LIABILITY FOR A BREACH OF THE SERVIC E
WARRANTIES SET FORTH ABOVE IN SECTION 8 .2 .1 . THE SERVICE WARRANTIES EXTEN D
TO CUSTOMER ONLY AND CANNOT BE ASSIGNED BY CUSTOMER .
8 .3 Third Party Warranties .PG&E shall use commercially reasonable efforts to obtain from al l
manufacturers, Customers and distributors standard guarantees and warranties ("Third Part y
Warranties") on the machinery, equipment, technology and/or other materials or items ("Equipment")
used in the Services or in an ECM, and any warranty for the Equipment shall be limited to the Third
Party Warranties provided by manufacturers, Customers, and distributors . All such Third Part y
Warranties, including without limitation those for defects, whether latent or patent, in Equipment shal l
terminate upon the conclusion of each such applicable Third Party Warranty period . Neither PG&E no r
its Subcontractors shall have any liability for breach of a Third Party Warranty, whether express o r
implied, or for any latent or patent defect of any kind . PG&E shall assign all Third Party Warrantie s
directly to Customer. At Customer's written request, PG&E will act as Customer's agent in workin g
with the Equipment manufacturers, Customers and distributors to resolve any Third Party Warranty
issues, and, if material defects are discovered within the Third Party Warranty period, PG&E will wor k
with the guarantor/warrantor as Customer's agent to facilitate the correction of the Equipment defect o r
replacement of the Equipment . Under no circumstances will PG&E or its Subcontractors have an y
liability with respect to its actions as Customer's agent .
Page 7 of 14
Exhibit A
8 .3 .1 The Third Party Warranty expressly excludes any remedy or liability for damage o r
defect caused by the improper use, or improper or inadequate operations or maintenance of Equipment o r
for the Services by users other than the Customer ; corrosion, erosion, deterioration, abuse, modifications
or repairs not performed by an authorized subcontractor ; or for wear and tear under normal usage . A t
Customer's option, Customer may contact the Equipment manufacturer, Customer or distributor directl y
to resolve any Third Party Warranty issues and Customer acknowledges that Customer and Equipmen t
manufacturer, Customer or distributor shall have sole responsibility for such issues .
8 .4 No Guarantee of Energy Savings .PG&E DOES NOT WARRANT OR GUARANTEE AN Y
LEVEL OF ENERGY, WATER SAVINGS, COST REDUCTIONS OR EQUIPMENT OR EC M
PERFORMANCE .
8 .5 Disclaimer .EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 8, CUSTOME R
EXPRESSLY AGREES THAT PG&E MAKES NO OTHER WARRANTIES AND ASSUMES N O
OTHER LIABILITIES, WHETHER IN CONTRACT OR IN TORT, IN CONNECTION WITH TH E
AUDIT, DESIGN, ENGINEERING, EQUIPMENT PROCUREMENT, CONSTRUCTION ,
IMPLEMENTATION, OPERATIONS, MAINTENANCE, SERVICES, EQUIPMENT OR ECM S
HEREUNDER WHETHER EXPRESS OR IMPLIED, IN LAW, IN EQUITY OR I N
COMMUNICATIONS BETWEEN PG&E AND CUSTOMER . PG&E SPECIFICALLY DISCLAIM S
ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULA R
PURPOSE . CUSTOMER SHALL HAVE NO REMEDIES AGAINST PG&E FOR ANY DEFECTIV E
SERVICES, INSTALLED EQUIPMENT, OR OPERATION OF AN ECM EXCEPT I N
ACCORDANCE WITH THE WARRANTY SET FORTH IN THIS SECTION 7 OR AS THE PARTIE S
MAY EXPRESSLY AGREE IN ANY WORK ORDER OR AMENDMENT TO THIS AGREEMENT .
9 .LIMITATION OF LIABILITY
9 .1 IF PG&E IS HELD TO BE LIABLE TO CUSTOMER OR TO ANY PARTY
CLAIMING BY OR THROUGH CUSTOMER BY REASON OF PG&E'S PERFORMANCE O F
SERVICES UNDER THIS AGREEMENT, PG&E'S TOTAL AGGREGATE LIABILITY WIT H
RESPECT TO DAMAGES AND LOSSES RELATING TO THIS AGREEMENT SHALL BE LIMITE D
TO THE LESSER OF : (A) THE PRICE FOR THE SERVICES UNDER THE WORK ORDER GIVIN G
RISE TO THE CLAIM ; OR (B) THE TOTAL AMOUNT PAID BY CUSTOMER TO PG&E FOR TH E
SERVICES UNDER THE WORK ORDER GIVING RISE TO THE CLAIM .
9 .2 IN NO EVENT SHALL PG&E BE LIABLE TO CUSTOMER OR ANY THIR D
PARTY FOR INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGE S
INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, COST OF DELAYS, REPLACEMENT O F
POWER, OR LOSS OF PROFITS, EVEN IF PG&E IS ADVISED BY CUSTOMER OF TH E
POSSIBILITY OF SUCH DAMAGES .
9 .3 THE ABOVE LIMITS OF LIABILITY ARE EXCLUSIVE AS TO ALL REMEDIE S
AND THE LIABILITY CAP SHALL NOT BE COMBINED WITH ANY OTHER LIMITS O F
LIABILITY SO AS TO INCREASE THE CAP VALUE IN ANY PARTICULAR INSTANCE O R
SERIES OF INSTANCES . THE PARTIES AGREE THE ABOVE SECTIONS 8 - 10 REPRESENT TH E
BASIS OF THE BARGAIN AND A FAIR ALLOCATION OF RISK BETWEEN THE PARTIES .
9 .4 Basis of the Bargain .THE PARTIES ACKNOWLEDGE AND AGREE THAT TH E
FOREGOING SECTIONS ON WARRANTIES, WARRANTY DISCLAIMER AND LIMITATION O F
LIABILITY IN THE AGREEMENT FAIRLY ALLOCATE THE RISKS BETWEEN THE PARTIE S
Page 8of14
Exhibit A
AND ARE ESSENTIAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIE S
SUCH THAT THE PARTIES WOULD NOT HAVE ENTERED INTO THIS AGREEMEN T
WITHOUT SUCH SECTIONS .
10.INDEMNIFICATION .Customer covenants and agrees that Customer will indemnify, defend and hol d
harmless PG&E, its affiliates, and PG&E's and its affiliates' respective directors, officers, employees ,
agents, successors and assigns (collectively, the "PG&E Indemnitees") from and against any and al l
claims, damages, costs, expenses, (including attorneys' fees and court costs) and liabilities (including
settlements) brought or asserted by any third party against the PG&E Indemnitees resulting from, arisin g
out of or related to any claim : (i) for personal injury, including death, or property damage, includin g
theft, caused to any of the PG&E Indemnitees, Subcontractors or a third party by Customer's action o r
inaction, whether negligence or intentional misconduct ; and (ii) resulting from Customer's breach of an y
representations, warranties or covenants contained above in Sections 8 .1 or 8 .2 ; and (iii) any data ,
Equipment, information, software or other property provided to PG&E hereunder or any element s
embodied therein, or that any of the PG&E Indemnitees' use of any of the foregoing infringe o r
misappropriate the intellectual property rights of any third party (each of the foregoing (i) through (iii )
are referred to as a "Claim"). PG&E shall promptly notify Customer of any Claim and shall (a t
Customer's sole expense) reasonably cooperate with Customer to facilitate the settlement or defense o f
such Claim . Customer shall, at its own expense, indemnify, defend and hold harmless the PG&E
Indemnitees from and against all costs of defending the Claim, including attorneys' fees and court cost s
(including those incurred by the PG&E Indemnitees in enforcing this provision). Customer shall keep
PG&E Indemnitees informed of, and consult with PG&E Indemnitees in connection with the selection o f
counsel to defend the Claim and the progress of such litigation or settlement . Customer shall not hav e
any right to settle any such Claim without the specific prior written approval from a designated lega l
representative of the PG&E Indemnitees .
11.TERM, SUSPENSION AND TERMINATION
11 .1 Term .This Agreement shall commence on the Effective Date and shall terminate upo n
later of: (a) three (3) years from the Effective Date, or (b) the Final Completion of all then-outstandin g
Work Orders, unless otherwise terminated earlier pursuant to this Section 10 (the "Initial Term"). Thi s
Agreement may be renewed, upon thirty (30) days prior written notice, for two (2) additional one (1) yea r
periods upon the mutual written agreement of the Parties (each a "Renewal Term"). The Initial Term an d
all Renewal Terms shall be collectively referred to as the "Term".
11 .2 Termination for Cause .If either Party materially defaults in the performance of any o f
its duties and obligation hereunder, or such material default is not cured within thirty (30) days afte r
written notice thereof, this Agreement may be terminated by the non-defaulting party for cause as of th e
date specified in the notice . In addition, a Party may be entitled to terminate the Agreement immediatel y
if a Party files a petition in bankruptcy, makes an assignment for the benefit of its creditors, become s
insolvent, fails to do business in the ordinary course, shall have or suffer the appointment of a receiver o r
trustee for its business or property, or be adjudicated bankrupt or insolvent, or bankruptcy proceedings
are commenced by or against such Party.
11 .3 PG&E's Additional Termination Rights .
11 .3 .1 Change in Law .In the event legislation or governmental regulations woul d
prohibit PG&E from providing the Services under this Agreement (in whole or in part), PG&E
may terminate the Agreement or any Work Order (without any liability or penalty) upon thirt y
(30) days' notice . Upon the effective date of PG&E's termination notice under this Section ,
Page 9 of 14
Exhibit A
Customer will pay PG&E for all of the Services provided to Customer as of the effective date o f
the termination notice .
11 .3 .2 Program Change .PG&E may terminate this Agreement immediately and
without prior notice in the event the California Public Utilities Commission ("CPUC") issues a
ruling or order prohibiting or otherwise preventing PG&E from fulfilling, or substantiall y
interfering with PG&E's ability to fulfill, its obligations under this Agreement, or finding tha t
this Agreement is contrary to the policies of the CPUC ..
11 .4 Suspension of Service .PG&E reserves the right (in addition to any and all other right s
and remedies PG&E may have) to suspend the performance of the Services, including those performe d
by Subcontractors, without any penalty or liability to Customer, if any invoice remains unpaid (in whol e
or in part) after the date payment is due until such invoice (including late penalties) is paid in full .
11 .5 Effect of Termination .Upon any expiration or termination of this Agreement, PG&E's
obligations to Customer shall be to continue to perform the Services until the effective date of such
termination (except as otherwise instructed in writing by PG&E), to wind down and terminate th e
Services in an efficient, workmanlike and cost-effective manner, and to cooperate with PG&E in th e
transition to third parties or employees designated by PG&E.
11 .5 .1 Effect of Customer's Termination .
(a)If Customer terminates a Work Order for cause pursuant to Section 11 .2 an d
prior to Substantial Completion, Customer may do so by giving written notice to PG&E at leas t
thirty (30) days prior to the effective date of such termination . In that event, Customer shall pay
PG&E the amount set forth in the termination schedule set forth in the applicable Work Order .
(b)If Customer terminates a Work Order for cause pursuant to Section 11 .2 and
after Substantial Completion, Customer may do so by giving written notice to PG&E at leas t
thirty (30) days prior to the effective date of such termination . In that event, Customer shall pay
PG&E the amount set forth in the termination schedule set forth in the applicable Work Order .
11 .6 Survival .The following Sections of this Agreement shall survive expiration ,
cancellation or other termination of this Agreement : 1, 6, 8 through 10, 11 .5, 11 .6 and 12 through 14 .
Any other provisions of this Agreement that would generally be construed as intended to survive th e
expiration, cancellation or other termination of this Agreement shall also survive such expiration ,
cancellation or other termination .
12. DISPUTE RESOLUTION .If any dispute, excluding payment defaults or delinquencies, arises unde r
the Agreement that is not settled promptly in the ordinary course of business, the Parties shall first see k
to resolve any such dispute between them by negotiating promptly in good faith in face-to-fac e
negotiations . These face-to-face negotiations shall be conducted by the respective designated senio r
managers of each Party responsible for their relationship, and shall be escalated internally by each Part y
as reasonably necessary to seek resolution of the dispute . If the Parties are unable to resolve the dispute
between them through these face-to-face negotiations within thirty (30) business days following thei r
commencement (or within such other period as the parties may otherwise mutually agree upon), then th e
parties shall escalate the dispute to their most senior executives within their organization . If the Parties '
most senior executives are unable to resolve the dispute within thirty (30) business days or such othe r
period as they may mutually agreed, then either Party may pursue available legal and equitable remedies .
Page 10 of 14
Exhibit A
13 . GOVERNING LAW AND VENUE .This Agreement shall be construed and interpreted in accordanc e
with the laws of the State of California, excluding any choice of law rules that may direct the applicatio n
of the laws of another jurisdiction . Any controversy or claim arising out of or in any way relating to thi s
Agreement shall be litigated in a California Superior Court of competent jurisdiction ; or if jurisdictio n
over the action cannot be obtained in a California Superior Court, in a Federal District Court o f
competent jurisdiction situated in the State of California, and Customer hereby consents to the persona l
jurisdiction of such courts .
13.FORCE MAJEURE.A Party will be excused from a delay in performing, or a failure to perform, it s
obligations under this Agreement (excluding Customer's payment obligations) to the extent such delay o r
failure is caused by the occurrence of a Force Majeure Event . In such event, the performance times shal l
be extended for a period of time equivalent to the time lost due to the Force Majeure Event . However, i f
a Force Majeure Event (excluding any affecting Customer's payment obligations) continues more tha n
ninety (90) days, the party not relying on the excusable delay may, at its option, terminate the affecte d
Product Order Form or Work Order, in whole or in part, upon notice, without penalty or obligation to th e
party suffering under the Force Majeure Event .
14.GENERAL TERMS.This Agreement contains the entire agreement between the parties regarding th e
Services and supersedes any other prior oral or written agreements . In the event of any conflict o r
inconsistency between the terms of this Agreement and any Work Order, such Work Order shall control .
Any different or additional provisions in purchase orders, invoices or similar documents issued b y
Customer are hereby deemed refused by PG&E and such refused provisions will be unenforceable . Any
modifications hereto must be in writing and signed by the parties . A waiver by any party of any breach
will not constitute a waiver of any different or subsequent breach . If any part of this Agreement i s
invalid, illegal or unenforceable for any reason, that portion shall be replaced with a valid provisio n
appropriate to the parties' original intent and the remainder shall be enforced .
IN WITNESS THEREOF, the parties have caused this Agreement to be executed as of th e
Effective Date first set forth above .
PACIFIC GAS AND ELECTRIC COMPANY CUSTOME R
77 Beale Street
San Francisco, CA 9410 4
By :By :
(Signature)(Signature )
Name :Name :
Title :Title :
Date :Date :
Page 11 of 14
Exhibit A
EXHIBIT A
POTENTIAL ECM S
Potential ECMs that may be included in a Work Order are set forth below :
a.Implementation, modification, repair, maintenance and/or operation of on-sit e
generation/cogeneration facilities, including those fueled by alternative resources ,
emergency and back-up power supply systems ,
b.Power quality and power reliability solutions including uninterruptible power suppl y
systems, thermal energy storage systems and fuel switching technology ,
c.Power factor correction measures and equipment ,
d.Transformer replacement ,
e.Interior and exterior lighting system replacement ,
f.Lighting control improvements ,
g.Occupancy sensors ,
h.LED exit sign installation ,
i.Motors replacement with high efficiency motors ,
j.Packaged air conditioning unit replacement ,
k.Cooling tower retrofit ,
1 .Economizer installation ,
m.Energy management control system installation/alteration/repair ,
n.Fans and pump replacement or impeller trimming ,
o.Chiller retrofit,
p.Variable frequency or variable speed drive utilization ,
q.Replacement of air conditioning & heating unit with a heat pump ,
r.Addition of liquid refrigerant pump to a reciprocating air conditioning unit ,
s.Heat pipe dehumidification ,
t.High efficiency window air conditioner replacement ,
u.Upgrade of natural gas-fired boilers with new controls (low NOx burners),
v.Boiler control improvements ,
w.Steam trap maintenance and replacement ,
x.Infrared heating system ,
Y .Solar domestic hot water system ,
z .Solar air preheating system ,
aa .Insulation installation ,
bb .Weatherization ,
cc .Window replacement ,
dd .Window coverings and awnings ,
ee .Reflective solar window tinting,
ff.High efficiency refrigerator replacement ,
gg .Water conservation device installation (e .g., flow restrictors, low flow flush valves ,
waterless urinals, horizontal axis washing machines),
hh .Faucet replacement (infrared sensor),
ii .Water distribution system leak detection, and cost effective repair,
jj .Flash bake commercial cooking,
kk .Operation, maintenance, modification and/or extension of utility distribution an d
collection system ,
11 .Training that will result in reduced energy costs ,
mm .Installation, maintenance and operation of standby propane facility,
14
Exhibit A
nn .Installation, maintenance and operation of gas distribution system and associate d
equipment,
oo . Any other cost-effective ECM, including those that reduce Customer's energ y
consumption, energy demand or energy costs, provide energy savings, improve energ y
reliability, and other energy infrastructure improvements, and water conservation .
pp . Design and/or scoping efforts in support of Authorization(s) other than the Authorizatio n
in which such design and/or scoping efforts are ordered and under which they ar e
compensated .
14
Exhibit A
EXHIBIT B
SAFETY WAIVE R
PG&E has informed the Customer's on-site representative of the following condition(s) which, i n
the opinion of PG&E's on-site representative, should be remedied before the Services may be resumed a t
the Facility . Customer recognizes that if the below-listed condition at the Facility is not remedied a s
recommended by PG&E, an accident may occur causing damage to the Facility, equipment and/or injur y
to persons, including but not limited to, the employees of Customer, PG&E and Subcontractors .
By signing this waiver, Customer acknowledges and accepts all liability associated with thi s
condition
Description of condition :
Equipment ID#:(If applicable)
Executed this day of , 201 1
Facility name :
CUSTOME R
Sign :
Name (print):
Title
Date :
PACIFIC GAS AND ELECTRIC COMPAN Y
Sign :
Name (print):
Title :
Date :
14