HomeMy WebLinkAboutR-10878 Authorizing a Services Agreement with PG&E for Water Energy Efficiency ProjectRESOLUTION NO. 10878 (2018 SERIES)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN LUIS
OBISPO, CALIFORNIA, AUTHORIZING A SERVICES AGREEMENT
WITH PACIFIC GAS AND ELECTRIC COMPANY PURSUANT TO
CALIFORNIA GOVERNMENT CODE 4217.10 ET SEQ., FOR THE CITY'S
WATER ENERGY EFFICIENCY PROJECT
WHEREAS, the City of San Luis Obispo desires to install certain energy efficiency
upgrades; and
WHEREAS, Section 907 of the City Charter exempts energy projects from the
requirements of Article IX of the City Charter; and
WHEREAS, the State of California Government Code 4217.12 authorizes local
municipalities to enter into energy services and financing agreements, outside of the adopted
procurement process, that the governing body finds best serves the public agency; and
WHEREAS, the City Council desires to use the California Government Code 4217.10 as
a basis to negotiate contracts and possible financing for certain energy efficiency upgrades and
to utilize programs offered by its energy provider Pacific Gas & Electric Company ("PG&E");
and
WHEREAS, the City Council considered the aforementioned contracts with PG&E at a
public hearing during a regularly scheduled meeting on April 3, 2018, public notice of which was
given at least two weeks in advance.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of San Luis Obispo
as follows:
SECTION 1. Findings: Based upon the City's Council Agenda Report, which included
projections 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:
a) The Water Energy Efficiency Project is subject to Government Code
section 4217.10 et seq. and Article IX Section 907 of the City Charter
and provides unique and provide benefits to the public;
b) The anticipated cost to the City under the contract with PG&E will be less
than the anticipated marginal cost to the City for the electrical energy that
would have been consumed by the City in the absence of those purchases;
c) The project is exempt from Article IX Section 901 of the City Charter and is
allowed by Government Code section 4217.10 as an energy efficiency project.
1. .
Resolution No. 10878 (2018 Series) Page 2
SECTION 2. Environmental Determination. The City Council hereby determines that the
Investment Grade Audit of the Water Energy Efficiency Project's is statutorily exempt from the
California Environmental Quality Act (CEQA) consistent with Section 15262, Feasibility and
Planning Studies. Once individual projects come forward, further environmental assessment will
be performed.
SECTION 3. The City approves the agreement substantially in the form attached as
Exhibit A.
SECTION 4. The City Council authorizes the City Manager to execute the Service
Agreement and the Work Order with PG&E for the Investment Grade Audit of the Water
Energy Efficiency Project, subject to the City Attorney's approval as to the form of the
agreements.
Upon motion of Vice Mayor Christianson, seconded by Council Member Pease, and on the
following roll call vote:
AYES: Council Members Gomez, Rivoire and Pease,
Vice Mayor Christianson and Mayor Harmon
NOES: None
ABSENT: None
The foregoing resolution was adopted this 3`d day of April 2018.
ATTEST:
I -
Teresa Purrington
Acting City Clerk
Resolution No. 10878 (2018 Series)
APPROVED AS TO FORM:
Page 3
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City
of San Luis Obispo, California, this l 0' day of k1lic,1 g
Teresa Purrington
Acting City Clerk
Resolution No. 10878 (2018 Series) - EXHIBIT A, Page 4
Pacific Gas and Agreement No: SST-XXXXX
S Electric Company (Customer name)
SERVICES AGREEMENT
This Services Agreement is made and entered into as of _ ("Effective
Date") by and between , a with offices at
("Customer") and Pacific Gas and Electric Company, a California corporation, with
offices at 77 Beale Street, San Francisco, California 94105 ("PG&E"). Customer and PG&E shall each
individually be referred to as a "Party" and together constitute the "Parties."
RECITALS
WHEREAS, Customer desires assistance in implementing energy conservation and management
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 as
more fully set forth herein; and
NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements
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 following
capitalized terms shall have the meanings set forth below:
1.1 "Agreement" shall mean this Agreement, and all such Agreement's Exhibits, Work Orders and
Change Orders, all of which are incorporated herein; as such Agreement, Exhibits, Work Orders or
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 other
modification that materially affects the design, configuration, quality, or function of the Project or the
Services; (b) a change or modification to or repeal of an applicable law after the Effective Date, (c) delay
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 or
revise during the Term.
1.3 "Change Order" shall mean a written document signed by the Parties that describes a Change to
the Scope of Work or Work Order, and authorizes and directs PG&E to perform such Change. The
Change Order may also authorize the additional compensation, if any, to be paid PG&E to perform such
Change.
1.4 "Energy Conservation Measures" or "ECM" means an energy conservation measure which may
include a feasibility study, engineering and design (e.g., IGA), operation and maintenance.
1.5 "Investment Grade Audit" or "IGA" shall mean the detailed analysis of all or a portion of a
Facility to determine the technical and financial feasibility of implementing, operating and maintaining
one or more ECMs at such Facility.
1.6 "Equipment" shall mean all of the equipment, machinery, technology and other items described
in the applicable Work Order.
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Resolution No. 10878 (2018 Series) - EXHIBIT A, Page 5
FSPacific Gas and Agreement No: SST-XXXXX
Electric Company Customer name)
1.7 "Facility(ies)" shall mean the above -ground buildings and related premises owned or leased by
Customer as set forth in the applicable Work Order.
1.8 "Force Majeure Event" shall mean any cause, act, event, condition or other occurrence materially
impacting the Services or the Project Schedule not caused by the Party asserting the Force Majeure Event
and that is beyond the control of such Party to avoid, overcome or remedy through the exercise of due
diligence and reasonable efforts. Without limiting the foregoing, the following are examples of Force
Majeure 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.
1.9 "Hazardous Materials." Any hazardous, toxic or dangerous wastes, substances, chemicals,
constituents, contaminants, pollutants, and materials, including without limitation, asbestos -containing
equipment or materials, lead-based paint, ozone depleting refrigerants, fluorescent tubes, fluorescent
magnetic core and coil ballasts, carcinogenic, corrosive, ignitable, radioactive, and reactive or otherwise
hazardous substances or mixtures (whether solids, liquids, or gases) now or at any time subject to
regulation, control, removal, remediation or otherwise addressed under applicable law or under PG&E's
CPUC -approved rules.
1.10 "Material Changed Condition" shall mean the unforeseeable or unanticipated discovery of the
presence of Hazardous Materials or other unanticipated or unforeseeable condition or circumstance, at or
near a Facility or Project site that has occurred or has been discovered after the Services has commenced
that materially impacts the Schedule, the Services or PG&E's costs to perform the Services, was not
caused by PG&E and that PG&E could not have discovered through the exercise of reasonable due
diligence. Only by way of example, a Material Changed Condition includes but is not limited to (i)
Hazardous Materials or other differing and unexpected site conditions, surface or subsurface conditions,
(ii) adverse weather conditions unusual to the area where the Services is to be performed and that could
not have been anticipated and that materially impacts the Services or Project Schedule; or (iii)
unforeseeable material delays in Equipment, material deliveries or the availability of labor that materially
impacts the Services or Project Schedule.
1.11 "Project" shall mean energy efficiency, energy conservation, energy management, energy
production or other energy-related measures or projects; or any other energy-related matter, measure or
project that is, or will become, the subject of a Work Order.
1.12 "Project Schedule" shall mean the estimated commencement date, sequence, duration, and, if
appropriate, milestones, for Substantial Completion of the Project as set forth in the Work Order.
1.13 "Services" mean, collectively all activities to be performed by PG&E pursuant to this Agreement
to complete a Project, including, without limitation, preliminary and/or IGA, design, Equipment or
materials procurement, construction, installation, testing, completion, maintenance and operation of a
Project. Services shall also include all labor, work, Equipment fabrication, assembly, modification, repair
and replacement, and other activities as the Parties may agree upon and are set forth in a Work Order.
1.14 "Scope of Work" shall mean all of the Services to be performed by PG&E and/or its
Subcontractors pursuant to the terms and conditions of a Work Order, and any Change Orders to a Work
Order, as well as all other efforts of PG&E and other entities with respect to such Work Order, for the
implementation of an ECM alone or as part of a Project pursuant to the terms and conditions of this
Agreement and as specifically described in each Work Order and applicable Change Orders.
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Resolution No. 10878 (2018 Series) - EXHIBIT A, Page 6
Agreement No: SST-XXXXX
(Customer name)
1.15 "Subcontractor" shall mean any corporation, limited liability company, partnership, association,
or individual hired by PG&E to perform Services.
1.16 "Substantial Completion" shall mean the Project is generally capable of being used for or of
achieving the purpose intended by the Work Order.
1.17 "Work Order" means the document executed by both Parties to complete the Services identified
in such Work Order. Each Work Order shall be subject to the terms and conditions of this Agreement and
the terms and conditions set forth in such Work Order. If there is a conflict between the Work Order or
Change Orders and the terms and conditions of this Agreement, such Work Order/Change Order shall
take precedence and shall establish the Scope of Work of each Project.
2. SCOPE. This Agreement sets forth the terms and conditions under which PG&E may assist
Customer implement ECMs at one or more of Customer's Facilities through Work Orders. This
Agreement sets forth the terms and conditions under which Work Orders may be entered into by the
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 shall
be construed as creating any agency, partnership, or other form of joint enterprise between the Parties 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 or
entities in order to perform the Services hereunder. PG&E agrees to impose on its Subcontractors
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 inclusive 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 the
performance of this Agreement (the "Authorized Person"). The Authorized Person for each party shall be
the primary point of contact for inquiries and requests. Each such Authorized Person shall provide the
other with such information and assistance as may be reasonably requested by the other from time to time
for the purpose of the performance of this Agreement.
3.3.2 Approvals. The Authorized Person for each party will have the authority to
issue, execute, receive, grant and provide any and all approvals, requests, notices and other
communications permitted, required or requested by the other party; provided, however, that neither
Customer nor PG&E shall rely for any purpose on any oral communication not confirmed in writing by
an Authorized Person within twenty-four (24) hours, and provided however, that neither Customer nor
PG&E shall rely for any purpose on any oral communication which would have the effect of amending
this Agreement.
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4. SERVICES.
Resolution No. 10878 (2018 Series) - EXHIBIT A, Page 7
Agreement No: SST-XXXXX
(Customer name)
4.1 General. Customer may request that PG&E assist Customer in the implementation of one
or more of the ECMs at set forth in Exhibit A, which is attached hereto and incorporated by reference
herein.
4.1.1 Prelimina Audit. At Customer's written request, PG&E or its Subcontractor
will conduct, at no cost to Customer, a preliminary audit consisting of an on-site building investigation and
evaluation for a mutually agreeable Facility to determine if any significant energy conservation
opportunities exist and whether a further IGA is needed.
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 an "IGA to determine whether the ECMs
proposed in the Preliminary Audit are feasible. The Work Order for the IGA shall specify the terms for
completing the IGA and establish a price for the IGA. Customer shall pay for the IGA in accordance with
the payment terms of this Agreement and the applicable Work Order. Unless otherwise agreed upon in the
Work Order for the IGA, Customer shall provide PG&E, at Customer's sole cost and expense, legible and
complete copies of all floor plans, drawings and any other documents deemed necessary by PG&E in order
to provide the IGA.
4.1.3 Designand Implementation Phase. Upon completion of the IGA, PG&E will
provide an ECM implementation proposal, which would include additional design, engineering and
construction services (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, amortization schedule and termination schedule which shall be set forth in a Work Order. If
required, PG&E will provide acceptable payment and performance bonds.
4.1.4 Assumptions. Customer understands that performance of the Services is
dependent upon Customer's cooperation. Therefore, Customer agrees to use its best efforts to cooperate
with PG&E in the performance of the Services and shall provide PG&E with timely access to, during
normal business hours, and use of Customer's personnel, facilities, data, Equipment, materials and
information to the extent necessary for PG&E to perform the Services. Customer acknowledges and
agrees that Work Orders may set forth additional details regarding PG&E's access to and use of the
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 reasonably
possible, agree on a Change Order. If the Parties are unable to agree on a Change Order, PG&E shall
suspend its performance of the Services including the Change, until such time as the Parties'
disagreement has been resolved pursuant to Section 11 (Dispute Resolution).
4.2.1 Material Chanted Condition. PG&E will give written notice to Customer of the
discovery of Hazardous Materials on or near a Facility, or other condition or circumstance PG&E or its
Subcontractor believes to be a Material Changed Condition. Neither PG&E nor its Subcontractor will
remove, remediate, repair or otherwise disturb any site, soil, subsurface conditions, Hazardous Materials
or other adverse impacts on the Services or the Facility until Customer has had a reasonable opportunity
to investigate to determine whether a Material Changed Condition has occurred. If Customer reasonably
determines a Material Changed Condition has occurred, the Parties will, if reasonably possible, agree on a
Change Order with respect to such Material Changed Condition. If the Parties fail to agree on a Change
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Agreement No: SST-XXXXX
(Customer name)
Order relating to a Material Changed Condition, PG&E shall suspend Services until such time as the
Parties have resolved the disagreement pursuant to Section 11 (Dispute Resolution).
(a) Handling and Disposal of Hazardous Materials. Customer acknowledges and
agrees that PG&E has no obligation to investigate or inspect the Facility for the presence of Hazardous
Materials, or to identify, remove, dispose of, abate, or remediate Hazardous Materials. Customer shall
have sole responsibility for the identification, removal, disposal, abatement or remediation of Hazardous
Materials, and for the clean-up, transport and disposal of any fixtures, materials, Equipment, or
substances containing, exposed to or contaminated by Hazardous Materials, all in accordance with
applicable laws.
4.2.2 Unanticipated Conditions. If any unusual or unanticipated conditions exist or
arise at the Site (such as Hazardous Materials, environmental conditions or pollution), which conditions
would 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 of
the related expenses. The additional Services resulting therefrom will be set forth in a Change Order
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 extreme
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 the
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 any
responsibility to perform the Services.
4.2.4 Customer Delay. If the performance of particular Services by PG&E depends
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, the
minimum time estimate for PG&E's completion of the particular Services which are dependent thereon
shall be extended by the period of Customer's delay with respect thereto.
4.2.5 Change Costs. Customer shall reimburse PG&E for those reasonable costs
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 professional
services, expenses and taxes, if any.
4.2.6 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/or
perform any Services pursuant to a Change Order unless and until PG&E has received the signed Change
Order and Customer has issued PG&E a Work Order for such Change Order.
4.3 PG&E's Utility Obligations. Customer acknowledges that PG&E has an obligation to
maintain, repair and service its own facilities, including those under the operation and control of the
California Independent System Operator, in order to perform its duties as a public utility, which
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 previously
committed to the performance of Services under a Work Order in order to maintain adequate service to
PG&E's other customers or to fulfill its duties as a public utility, then PG&E shall have the right to divert
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Agreement No: SST-XXXXX
(Customer name)
the use of such personnel or resources to satisfy such requirements. If as a result of such action, PG&E is
unable to perform its obligations under this Agreement and is unable to procure a third party to perform
the Services (or a portion thereof), then PG&E shall be excused from the performance of the Services
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.
5. FACILITY SAFETY AND HAZARDOUS MATERIALS
5.1 Facility Safety. Customer shall be responsible for ensuring that the Facilities are safe for
PG&E personnel and Subcontractors performing Services at Customer's facilities. Customer shall also
cooperate with PG&E personnel working on-site and shall promptly take such actions that may be
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 will
inform PG&E and Subcontractors of the presence of any Hazardous Materials of which Customer is
aware exist inside the Facility (e.g., asbestos). If PG&E or its Subcontractor discovers any Hazardous
Materials at or around the Facility after commencement of the Services, the procedures specified below in
Section 5.3 shall apply. Neither PG&E nor its Subcontractors shall handle, remove, dispose of or
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 believes
that it has encountered or detected the presence of Hazardous Materials, PG&E will promptly stop
performing the Services and notify Customer of such Hazardous Materials or conditions. Customer will
promptly investigate for the presence of Hazardous Materials and inform PG&E of the results of this
evaluation. PG&E will not resume the performance of the Services until the Hazardous Materials have
been removed, disposed of, abated or remediated to PG&E's reasonable satisfaction. Any delay or
increase in the Services or costs as a result of the testing, presence, removal, disposal, abatement or
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 accordance
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 invoice number
and be mailed to PG&E to the attention of Accounts Payable.
6.2 Late I'ayments. All late payments shall be subject to an interest charge, which is the
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 reasonable
attorneys' fees and costs related thereto.
6.3 Expenses. Customer agrees to reimburse PG&E for all expenses incurred in connection
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 paid
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,
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(Customer name)
which are levied or imposed on PG&E because of the Services performed under this Agreement (other
than taxes based on PG&E's net income) ("Taxes"). If PG&E has the legal obligation to pay or collect
Taxes for which Customer is responsible under this Section 6.4, the appropriate amount shall be invoiced
to and paid by Customer unless Customer provides PG&E with a valid tax exemption certificate
authorized by the appropriate taxing authority verifying that Customer is not required to pay those Taxes
and is legally exempt.
7. WARRANTIES AND WARRANTY DISCLAIMERS
7.1 Customer Warranties. Customer represents and warrants to PG&E that: (a) it has the full
corporate right, power, and authority to enter into the Agreement and to perform its obligations
hereunder; (b) the terms of the Agreement and the performance by such Party of its duties and
obligations hereunder, do not violate and will not cause a breach of the terms of any other agreement or
any applicable law to which such Party is a party or by which it is subject or bound; (c) when executed
and delivered by such Party, the Agreement will constitute the legal, valid and binding obligation of such
Party, enforceable against such Party in accordance with its terms; and (d) it is either the owner or lessee
of the Facility and has all necessary rights to allow PG&E and Subcontractors access to such Facility so
that they may perform the Services.
7.2 PG&E Limited Warranties.
7.2.1 PG&E warrants that the Services will be performed in a commercially reasonable 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, the warranty period
for Services furnished hereunder shall be for a period of twelve (12) months from the date of Substantial
Completion ("Service Warranty Period").
7.2.2 Remedies. Customer must notify PG&E of any non -conformity or defect in the Services
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 7.2.1, then PG&E, in its
sole discretion, will either re -perform the non -conforming Services within a commercially reasonable
period of time at PG&E's cost and expense or (b) refund the applicable fees paid to PG&E by Customer
for the non -conforming Services. THIS SECTION 7.2.2 STATES CUSTOMER'S SOLE AND
EXCLUSIVE REMEDY AND PG&E'S SOLE LIABILITY FOR A BREACH OF THE SERVICE
WARRANTIES SET FORTH ABOVE IN SECTION 7.2.1. THE SERVICE WARRANTIES EXTEND
TO CUSTOMER ONLY AND CANNOT BE ASSIGNED BY CUSTOMER.
7.3 Third Party Warranties. PG&E shall use commercially reasonable efforts to obtain from all
manufacturers, Customers and distributors standard guarantees and warranties ("Third Party Warranties")
on the 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
Party Warranties, including without limitation those for defects, whether latent or patent, in Equipment
shall terminate upon the conclusion of each such applicable Third Party Warranty period. Neither PG&E
nor its Subcontractors shall have any liability for breach of a Third Party Warranty, whether express or
implied, or for any latent or patent defect of any kind. PG&E shall assign all Third Party Warranties
directly to Customer.
7.3.1 The Third Party Warranty expressly excludes any remedy or liability for damage or
defect caused by the improper use, or improper or inadequate operations or maintenance of Equipment or
for the Services by users other than the Customer; corrosion, erosion, deterioration, abuse, modifications
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Customer name
or repairs not performed by an authorized subcontractor; or for wear and tear under normal usage. At
Customer's option, Customer may contact the Equipment manufacturer, Customer or distributor directly
to resolve any Third Party Warranty issues and Customer acknowledges that Customer and Equipment
manufacturer, Customer or distributor shall have sole responsibility for such issues.
7.4 No Guarantee of Energy Savings. PG&E DOES NOT WARRANT OR GUARANTEE ANY
LEVEL OF ENERGY, WATER SAVINGS, COST REDUCTIONS OR EQUIPMENT OR ECM
PERFORMANCE.
7.5 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 8, CUSTOMER
EXPRESSLY AGREES THAT PG&E MAKES NO OTHER WARRANTIES AND ASSUMES NO
OTHER LIABILITIES, WHETHER IN CONTRACT OR IN TORT, IN CONNECTION WITH THE
AUDIT, DESIGN, ENGINEERING, EQUIPMENT PROCUREMENT, CONSTRUCTION,
IMPLEMENTATION, OPERATIONS, MAINTENANCE, SERVICES, EQUIPMENT OR ECMS
HEREUNDER WHETHER EXPRESS OR IMPLIED, IN LAW, IN EQUITY OR IN
COMMUNICATIONS BETWEEN PG&E AND CUSTOMER. PG&E SPECIFICALLY DISCLAIMS
ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. CUSTOMER SHALL HAVE NO REMEDIES AGAINST PG&E FOR ANY DEFECTIVE
SERVICES, INSTALLED EQUIPMENT, OR OPERATION OF AN ECM EXCEPT IN
ACCORDANCE WITH THE WARRANTY SET FORTH IN THIS SECTION 7 OR AS THE PARTIES
MAY EXPRESSLY AGREE IN ANY WORK ORDER OR AMENDMENT TO THIS AGREEMENT.
8. LIMITATION OF LIABILITY
8.1 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 OF
SERVICES UNDER THIS AGREEMENT, PG&E'S TOTAL AGGREGATE LIABILITY WITH
RESPECT TO DAMAGES AND LOSSES RELATING TO THIS AGREEMENT SHALL BE LIMITED
TO THE LESSER OF: (A) THE PRICE FOR THE SERVICES UNDER THE WORK ORDER GIVING
RISE TO THE CLAIM; OR (B) THE TOTAL AMOUNT PAID BY CUSTOMER TO PG&E FOR THE
SERVICES UNDER THE WORK ORDER GIVING RISE TO THE CLAIM.
8.2 IN NO EVENT SHALL PG&E BE LIABLE TO CUSTOMER OR ANY THIRD
PARTY FOR INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES
INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, COST OF DELAYS, REPLACEMENT OF
POWER, OR LOSS OF PROFITS, EVEN IF PG&E IS ADVISED BY CUSTOMER OF THE
POSSIBILITY OF SUCH DAMAGES.
8.3 THE ABOVE LIMITS OF LIABILITY ARE EXCLUSIVE AS TO ALL REMEDIES
AND THE LIABILITY CAP SHALL NOT BE COMBINED WITH ANY OTHER LIMITS OF
LIABILITY SO AS TO INCREASE THE CAP VALUE IN ANY PARTICULAR INSTANCE OR
SERIES OF INSTANCES. THE PARTIES AGREE THE ABOVE SECTIONS 7 - 9 REPRESENT THE
BASIS OF THE BARGAIN AND A FAIR ALLOCATION OF RISK BETWEEN THE PARTIES.
8.4 Basis of the Bargain. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE
FOREGOING SECTIONS ON WARRANTIES, WARRANTY DISCLAIMER AND LIMITATION OF
LIABILITY IN THE AGREEMENT FAIRLY ALLOCATE THE RISKS BETWEEN THE PARTIES
AND ARE ESSENTIAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES
SUCH THAT THE PARTIES WOULD NOT HAVE ENTERED INTO THIS AGREEMENT
WITHOUT SUCH SECTIONS.
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Resolution No. 10878 (2018 Series) - EXHIBIT A, Page 12
Agreement No: SST-XXXXX
(Customer name)
9. INDEMNIFICATION. Customer covenants and agrees that Customer will indemnify, defend and hold
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 all
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, arising
out of or related to any claim: (i) for personal injury, including death, or property damage, including theft,
caused to any of the PG&E Indemnitees, Subcontractors or a third party by Customer's action or inaction,
whether negligence or intentional misconduct; and (ii) resulting from Customer's breach of any
representations, warranties or covenants contained above in Sections 7.1 or 7.2; and (iii) any data,
Equipment, information, software or other property provided to PG&E hereunder or any elements
embodied therein, or that any of the PG&E Indemnitees' use of any of the foregoing infringe or
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 (at Customer's
sole expense) reasonably cooperate with Customer to facilitate the settlement or defense of 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 costs (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 of counsel to defend
the Claim and the progress of such litigation or settlement. Customer shall not have any right to settle
any such Claim without the specific prior written approval from a designated legal representative of the
PG&E Indemnitees.
10. TERM, SUSPENSION AND TERMINATION
10.1 Term. This Agreement shall commence on the Effective Date and shall terminate upon
later of. (a) three (3) years from the Effective Date, or (b) the Final Completion of all then -outstanding
Work Orders, unless otherwise terminated earlier pursuant to this Section 10 (the "Initial Term"). This
Agreement may be renewed, upon thirty (30) days prior written notice, for two (2) additional one (1) year
periods upon the mutual written agreement of the Parties (each a "Renewal Term"). The Initial Term and
all Renewal Terms shall be collectively referred to as the "Term'.
10.2 Termination for Cause. If either Party materially defaults in the performance of any of
its duties and obligation hereunder, or such material default is not cured within thirty (30) days after
written notice thereof, this Agreement may be terminated by the non -defaulting party for cause as of the
date specified in the notice. In addition, a Party may be entitled to terminate the Agreement immediately
if a Party files a petition in bankruptcy, makes an assignment for the benefit of its creditors, becomes
insolvent, fails to do business in the ordinary course, shall have or suffer the appointment of a receiver or
trustee for its business or property, or be adjudicated bankrupt or insolvent, or bankruptcy proceedings are
commenced by or against such Party.
10.3 PG&1;'s Additional Termination Rights.
10.3.1 Change in Law. In the event legislation or governmental regulations would
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 thirty
(30) days' notice. Upon the effective date of PG&E's termination notice under this Section,
Customer will pay PG&E for all of the Services provided to Customer as of the effective date of
the termination notice.
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Resolution No. 10878 (2018 Series) - EXHIBIT A, Page 13
Agreement No: SST-XXXXX
(Customer name)
10.3.2 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 substantially
interfering with PG&E's ability to fulfill, its obligations under this Agreement, or finding that this
Agreement is contrary to the policies of the CPUC. .
10.4 Suspension of Service. PG&E reserves the right (in addition to any and all other rights
and remedies PG&E may have) to suspend the performance of the Services, including those performed by
Subcontractors, without any penalty or liability to Customer, if any invoice remains unpaid (in whole or
in part) after the date payment is due until such invoice (including late penalties) is paid in full.
10.5 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 the
Services in an efficient, workmanlike and cost-effective manner, and to cooperate with PG&E in the
transition to third parties or employees designated by PG&E.
10.5.1 Effect of Customer's Termination.
(a) If Customer terminates a Work Order for cause pursuant to Section 10.2 and
prior to Substantial Completion, Customer may do so by giving written notice to PG&E at least
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 10.2 and after
Substantial Completion, Customer may do so by giving written notice to PG&E at least 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.
10.6 Survival. The following Sections of this Agreement shall survive expiration, cancellation
or other termination of this Agreement: 1, 6, 7through 9, 10.5, 10.6 andl l through 13. Any other
provisions of this Agreement that would generally be construed as intended to survive the expiration,
cancellation or other termination of this Agreement shall also survive such expiration, cancellation or
other termination.
11. DISPUTE RESOLUTION. If any dispute, excluding payment defaults or delinquencies, arises under
the Agreement that is not settled promptly in the ordinary course of business, the Parties shall first seek to
resolve any such dispute between them by negotiating promptly in good faith in face-to-face negotiations.
These face-to-face negotiations shall be conducted by the respective designated senior managers of each
Party responsible for their relationship, and shall be escalated internally by each Party 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 their commencement
(or within such other period as the parties may otherwise mutually agree upon), then the 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 other period as they
may mutually agreed, then either Party may pursue available legal and equitable remedies.
12. GOVERNING LAW AND VENUE. This Agreement shall be construed and interpreted in accordance
with the laws of the State of California, excluding any choice of law rules that may direct the application
of the laws of another jurisdiction. Any controversy or claim arising out of or in any way relating to this
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Agreement No: SST-XXXXX
(Customer name)
Agreement shall be litigated in a California Superior Court of competent jurisdiction; or if jurisdiction
over the action cannot be obtained in a California Superior Court, in a Federal District Court of competent
jurisdiction situated in the State of California, and Customer hereby consents to the personal jurisdiction
of such courts.
13. FORCE MAJEURE. A Party will be excused from a delay in performing, or a failure to perform, its
obligations under this Agreement (excluding Customer's payment obligations) to the extent such delay or
failure is caused by the occurrence of a Force Majeure Event. In such event, the performance times shall
be extended for a period of time equivalent to the time lost due to the Force Majeure Event. However, if
a Force Majeure Event (excluding any affecting Customer's payment obligations) continues more than
ninety (90) days, the party not relying on the excusable delay may, at its option, terminate the affected
Product Order Form or Work Order, in whole or in part, upon notice, without penalty or obligation to the
party suffering under the Force Majeure Event.
14. GENERAL TERMS. This Agreement contains the entire agreement between the parties regarding the
Services and supersedes any other prior oral or written agreements. In the event of any conflict or
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 by
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 is invalid,
illegal or unenforceable for any reason, that portion shall be replaced with a valid provision 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 the
Effective Date first set forth above.
PACIFIC GAS AND ELECTRIC COMPANY CUSTOMER
245 Market Street MC NI OD
San Francisco, CA 94105
By:
(Signature)
Name: Roxanna Fong
Title: Manager
Date:
By:
(Signature)
Name:
Title:
Date:
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Resolution No. 10878 (2018 Series) - EXHIBIT A, Page 15
EXHIBIT A
POTENTIAL ECMS
Agreement No: SST-XXXXX
(Customer name)
Potential ECMs that may be included in a Work Order are set forth below:
a) Hydro -Electric Power Generation on the Nacimiento raw water transmission line,
b) Water Treatment Plant Ozone Generation System Upgrade
c) Water Treatment Plant Transfer Pump Station Back-up Power
d) Water Treatment Plant Transfer Pump Station Upgrades
e) Water Treatment Plant Photovoltaic (solar) Power Generation
f) Water Treatment Plant Photovoltaic (solar) Shade Canopy for Actiflo and Filter Basins
g) Water Treatment Plant Lighting Improvements
h) Water Treatment Plant HVAC and HVAC Control Improvements
i) Water Treatment Plant Service Water System Upgrades
j) Water Treatment Plant SCADA/Controls Upgrades
k) Reservoir #1 Photovoltaic (solar) Power Generation
1) Whale Rock Pump Station Upgrades,
m) Any other cost-effective ECM, including those that reduce Customer's energy consumption,
energy demand or energy costs, provide energy savings, improve energy reliability, and other
energy infrastructure improvements, and water conservation.
n) Design and/or scoping efforts in support of Authorization(s) other than the Authorization in
which such design and/or scoping efforts are ordered and under which they are compensated.
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FaPacific Gas and Agreement No: SST-XXXXX
Electric Company (Customer name)
EXHIBIT B
SAFETY WAIVER
PG&E has informed the Customer's on-site representative of the following condition(s) which, in
the opinion of PG&E's on-site representative, should be remedied before the Services may be resumed at
the Facility. Customer recognizes that if the below -listed condition at the Facility is not remedied as
recommended by PG&E, an accident may occur causing damage to the Facility, Equipment and/or injury
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 this
condition
Description of condition:
Equipment ID#: (If applicable)
Executed this _ day of
Facility name:
CUSTOMER
Sign:
Name (print):
Title
Date:
PACIFIC GAS AND ELECTRIC COMPANY
Sign:
Name (print):
Title:
Date:
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