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HomeMy WebLinkAboutCC Resolution 14387 (Energy Efficiency Loan)RESOLUTION NO. 14387 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL AUTHORIZING THE CITY MANAGER TO ACCEPT AN ENERGY EFFICIENCY LOAN FOR VARIOUS SYSTEM UPGRADES TO CITY FACILITIES AND STREET LIGHTS WHEREAS, the California Energy Commission (CEC) provides loans to schools, hospitals, local governments, special districts, and public care institutions to finance energy efficiency improvements; and WHEREAS, the City Council of the City of San Rafael authorized the City Manager to work with PG&E to apply for a one percent energy efficiency loan from the California Energy Commission to implement energy efficiency measures; and WHEREAS, at its regular meeting of July 12, 2017, the CEC approved the City's request for a loan in the amount of $1,178,813.00 to fund energy efficiency upgrades to various City facilities and all streetlights within the City; and WHEREAS, under the terms and conditions of the loan agreement, the amount of the CEC loan will be paid in full plus interest out of savings accruing to the City from the proposed energy efficiency upgrades that will be funded by the loan. NOW THEREFORE, BE IT RESOLVED, that the City Council of the City of San Rafael authorizes the City Manager to accept the loan from the California Energy Commission to implement these energy efficiency measures. BE IT FURTHER RESOLVED, in compliance with the California Environmental Quality Act (CEQA), the City of San Rafael finds that the activities for modifications to present facilities and infrastructure, funded by the loan, are energy efficient upgrades which are exempt under CEQA Guidelines Section 15301. BE IT FURTHER RESOLVED, that the amount of the loan will be paid in full plus interest under the terms and conditions of the loan agreement, a promissory note and tax certificate of the California Energy Commission. BE IT FURTHER RESOLVED, that the City Manager is hereby authorized and empowered to execute in the name of the City of San Rafael all grant documents required to implement and carry out the purpose of this resolution, and to undertake all actions necessary to undertake and complete the energy efficiency projects. I, ESTHER C. BEIRNE, Clerk of the City of San Rafael, hereby certify that the foregoing resolution was duly and regularly introduced and adopted at a regular meeting of the Council of said City on the 5`h day of September, 2017, by the following vote, to wit: AYES: COUNCIL MEMBERS: Bushey, Colin, Gamblin, McCullough & Mayor Phillips NOES: COUNCIL MEMBERS: None ABSENT: COUNCIL MEMBERS: None �z s f6 4 G . Ae-4 ,Z- -e ESTHER C. BEIRNE, City Clerk File No. 06.01.229 CONTRACT ROUTING FORM INSTRUCTIONS: Use this cover sheet to circulate all contracts for review ar TO BE COMPLETED BY INITIATING DEPARTMENT Contracting Department: Public Works Project Manager: Talia Smith Extension: 3354 Contractor Name: California Energy Commission Contractor's Contact: Gordon Kashiwagi Contact's Email: gordon.kashiwagi@energy.ca.gov ❑ FPPC: Check if Contractor/Consultant must file Form 700 Step RESPONSIBLE DESCRIPTION COMPLETED REVIEWER DEPARTMENT DATE Check/Initial 1 Project Manager a. Email PINS Introductory Notice to Contractor N/A ❑ 8/14/2017 ❑x b. Email contract (in Word) & attachments to City Atty c/o Laraine.Gittens@cityofsanrafael.org 2 City Attorney a. Review, revise, and comment on draft agreement 8/14/2017 and return to Project Manager N/A ❑x LG b. Confirm insurance requirements, create Job on Project Manager PINS, send PINS insurance notice to contractor ❑ 3 Forward three (3) originals of final agreement to N/A ❑ contractor for their signature 4 Project Manager When necessary, * contractor -signed agreement ❑ N/A agendized for Council approval *PSA > $20,000; or Purchase > $35,000; or Or MTS Public Works Contract > $125,000 9/5/2017 Date of Council approval PRINT CONTINUE ROUTING PROCESS WITH HARD COPY 5 Project Manager Forward signed original agreements to City Attorney with printed copy of this routing form 6 City Attorney Review and approve hard copy of signed A agreement Review and approve insurance in PINS, and bonds I /" 7 City Attorney 91-7h-7/) Q� City Manager/ Mayor (for Public Works Contracts) Agreement executed by Council authorized official 8 Ir ' 9 City Clerk Attest signatures, retains original agreement and I forwards copies to Project Manager STATE OF CALIFORNIA— NATURAL RESOURCES AGENCY CALIFORNIA ENERGY COMMISSION DIVISION OF FINANCIAL SERVICES GRANTS & LOANS 1516 NINTH STREET, MS -1 SACRAMENTO, CA 95814-5512 (916) 654-4381 www.energy.ca.gov August 1, 2017 Ms. Smith City Of San Rafael 111 Morphew Street San Rafael, CA 94901 Re: LOAN AWARD NUMBER: 001 -17 -ECD GENERAL TERM EDMUND G. BROWN JR., Governor If the Energy Commission Project Manager determines that the loan recipient is not progressing toward project completion within one (1) year of the date the loan documents were signed by the California Energy Commission (Energy Commission), the Energy Commission Project Manager may, without penalties or prejudice to any of the Commission's remedies, terminate this agreement. The recipient may reapply for a loan at a later date. PROCEDURE FOR EXECUTING AGREEMENT Enclosed are two copies of the Loan documents. Please have each CEC 142, Exhibit B and D, signed by the authorized person identified in your resolution. Return signed copies to this office. The Energy Commission agrees to keep this offer open for a period of 30 days from the date of this letter. Failure to execute this agreement within this 30 day period may result in forfeiture of the award. FUND AVAILABILITY Funds in this award have a limited period in which they must be expended. All recipient expenditures must occur prior to the end of the term of this agreement. EFFECTIVE DATE Effective Date of this Agreement is the date the California Energy Commission signs the Agreement. The California Energy Commission shall be the last party to sign. No work is authorized, nor shall any work begin, until on or after the effective date. August 1, 2017 Page 2 PROJECT ASSISTANCE There are two offices at the Commission with staff to assist you with your loan award. Contact me at (916) 654-4484 or Tonya.Heron(@,,energy.ca.gov for administrative questions and the Commission Agreement Manager listed in Exhibit C for technical questions. Sincerely, Tonya Heron Commission Agreement Officer California Energy Commission 1516 Ninth Street, MS -18 Sacramento, CA 95814 Enclosures cc: Armando Ramirez, Commission Agreement Manager, MS -23 File STATE OF CALIFORNIA —NATURAL RESOURCES AL .:Y ` EDMUND G. BROWN JR, Govemor CALIFORNIA ENERGY COMMISSION ADMINISTRATIVE AND FINANCIAL MANAGEMENT SERVICES DIVISION CONTRACTS, GRANTS, AND LOANS 1516 NINTH STREET, MS -18 SACRAMENTO, CA 95814-5512 (916) 654-4381 www.energy ca gov September 28, 2017 RECEIVED OCT :� ? 2017 Jim Schutz City of San Rafael CITY IOWORKS SAN RAFAEL 111 Morphew Street San Rafael, CA 94901 Dear Mr. Schutz: LOAN AWARD NUMBER: 001 -17 -ECD Enclosed for your records is a fully executed copy of the above -referenced agreement. Should you have any questions, please feel free to call me at (916) 654-4484. Sincerely, jt_6_� Tonya Heron Contracts, Grants and Loans Office Enclosure cc: Armando Ramirez, Energy Commission, MS -23 Accounting L{ -y-LP x STATE OF CALIFORNIA LOAN AGREEMENT CEC-142 (05110) EORROW.R City of San Rafael AGREEMENTNUMeER 001 -17 -ECD ADDRESS AGREEMENTTERIA 111 Morphew Street 7/13/17 to 7/12/19 San Rafael, CA 94901 Tbc effective date of this Agreement is the (late the California Energy Commission signs the Agreement. No work is nuthorized, or sball begin until the California Energy Commission signs the Agccntent. See the signature (late below for effective start date. The parties agree to comply with the terms and conditions of the following Exhibits which are by this reference made a part of the agreement. Exhibit A — Energy Conservation Assistance Act Loan Agreement Page(s): 10 Exhibit A — Attachment 1 — Budget Detail/Project Cost and Savings Page(s): 02 Exhibit B — Promissory Note Page(s): 03 Exhibit B — Attachment 1 — Estimated Amortization Schedule Page(s): 01 Exhibit C — Contacts Page(s): 01 Exhibit D — Tax Certificate Page(s): 03 $ 1,178, 813.00 $ 0.00 $ 171783813.00 The undersigned parties have read the attachments to this agreement and will comply with the standards and requirements contained therein. CALIFORNIA ENERGY COMMISSION RECIPIENT ORIZED 5 GN A R DATE ALIT II RIZED SIGN 7UR6 DATE NAME PNONE N n ONE (916) 654-4379Rachel L. Grant Kiley Schutz, )ty Manager 15-485-3475 TITLE --- — Contracts, Grants and Loans_ Office Manager CALIFORNIA ENERGY COMMISSION ADDRESS 1516 9th Street, MS -18, Sacramento, CA 95814 EXHIBIT A ENERGY CONSERVATION ASSISTANCE ACT LOAN AGREEMENT This Loan Agreement (the "Agreement") is entered into both parties hereto, between the California Energy Development Commission (the "Energy Commission") "Borrower") located in Marin County, CA. STATUTORY AUTHORITY AND LOAN as of the date it is executed by Resources Conservation and and the City of San Rafael (the A. Pursuant to the purposes authorized by section 25410, et seq., of the California Public Resources Code (the "Energy Conservation Assistance Act"), the Energy Commission has approved the Borrower's loan application dated November 9, 2016, which is not attached but is expressly incorporated by reference herein. B. Subject to the terms, covenants, conditions, and including Special Conditions (if applicable) contained herein, and the Budget Detail/Summary of Project Cost and Savings attached as Exhibit A, Attachment 1 hereto to the extent it modifies the Borrower's loan application, the Energy Commission shall make a loan to the Borrower (the "Loan") in the amount of one million one hundred seventy eight thousand eight hundred thirteen dollars $1,178,813 evidenced by a Promissory Note (the "Promissory Note") for loan number 001 -17 -ECD attached hereto as Exhibit B. 2. PURPOSE The Borrower agrees to expend all funds disbursed pursuant to this Agreement only for the purposes and in the amounts set forth in Exhibit A, Attachment 1 (the "Project"). Any other use of funds disbursed hereunder shall require prior written approval by the Energy Commission. 3. LOAN DISBURSEMENT SCHEDULE A. The Energy Commission agrees to disburse funds to the Borrower upon the Borrower's execution of the attached Promissory Note and required supplemental documents, including invoices as required in Section 33 below. B. Loan funds shall be disbursed on a reimbursement basis based on invoices submitted by Borrower in a form approved by the Energy Commission. Backup, documentation for actual expenditures (such as Bond -Funded Loan Agreement Exhibit A 001 -17 -ECD Rev. January 24, 2017 GKLFEB Page 1 of 10 City of San Rafael 4. 5. Al 7. timecards, vendor invoices, etc.) and proof of payment must be provided to substantiate the request. Energy Commission staff will approve invoices only after verifying requested amounts against backup billings and determining that expenses are appropriate and used for the authorized purposes of this Loan. For executed Agreements, invoices for expenses incurred during the Agreement Term are eligible for reimbursement. C. All invoices must be submitted within sixty (60) days after Project completion. D. The final ten percent (10%) of the Loan amount will be withheld as retention until the final report is received from the Borrower and the Commission's Project Manager determines the Project has been satisfactorily completed. LOAN REPAYMENT AND INTEREST All funds disbursed hereunder, together with all interest payable thereon, shall be repaid to the Energy Commission in accordance with the terms of the Promissory Note. The Loan shall bear simple interest at the annual rate set forth in the attached Promissory Note on the principal balance of Loan funds disbursed to the Borrower. Payment of said interest shall be due at the time of semiannual scheduled Loan repayment installments to the Energy Commission, and interest shall accrue from the time of disbursal of funds to the Borrower until receipt of full Loan repayment to the Energy Commission. TERM A. The effective date of this Agreement shall be the date on which it has been executed by both parties hereto. No work is authorized, or shall begin until the Energy Commission signs the Agreement. B. The Borrower agrees to complete performance of its obligations under this Agreement within the applicable periods stated in this Agreement. PREPAYMENT The Borrower shall have the right to prepay all or any part of the amount of this Loan at any time without penalty. PROMISSORY NOTE In order to evidence its debt to the Energy Commission hereunder, the Borrower agrees to, contemporaneously with the execution of this Agreement, execute and Bond -Funded Loan Agreement Exhibit A 001 -17 -ECD Rev. January 24, 2017 GKLFEB Page 2 of 10 City of San Rafael deliver to the Energy Commission the Promissory Note (attached as Exhibit B hereto). 8. ACCOUNTS, AUDITS, AND RECORDS A. The Borrower agrees to establish on its books a separate account for this Loan. This account shall be maintained as long as the Loan obligation remains unsatisfied. B. The Borrower further agrees to maintain records that accurately and fully show the date, amount, purpose, and payee of all expenditures drawn on said account for three (3) years after this Loan is repaid in full unless the Energy Commission requests a longer retention period. C. The Borrower further agrees to utilize a voucher system by which all expenditures from said account will be authorized and authenticated. D. The Borrower further agrees to allow the Energy Commission or any other agency of the State of California (the "State") or their designated representatives, on written request, to have reasonable access to, and the right of inspection of, all records that pertain to said account or the Project. The Borrower also agrees to submit to an independent audit, if requested by the Energy Commission, at the expense of the Borrower. Borrower agrees to maintain all such records for a minimum of three years after this Loan is repaid in full unless the Energy Commission notifies the Borrower, prior to the expiration of such three-year period, that a longer period of record retention is necessary. 9. SOURCE OF REPAYMENT; OPERATION OF PROJECT A. Semiannual payments due to the Energy Commission under this Agreement shall be made from savings in energy costs or other legally available funds as the Borrower chooses. If the Borrower is a county, city, town, township, board of education, or school district, the Borrower agrees that the amount of the semiannual Loan repayment shall not be raised by the levy of additional taxes and shall not be an obligation against tax revenues, but shall be obtained either from savings in energy costs resulting from the subject energy conservation projects or other legally available funds as the Borrower chooses. B. Energy cost savings as determined by the Energy Commission are based on energy usage and serving utility rate schedules at the time of the issuance of this Loan, except as specified in Special Conditions, if any, as detailed in this Agreement, and the information and data contained in the Borrower's loan application and technical study. The following will not Bond -Funded Loan Agreement Exhibit A 001 -17 -ECD Rev. January 24, 2017 GKLFEB Page 3 of 10 City of San Rafael affect the Energy Commission's initial finding of energy cost savings, and are not a basis for claiming a lack of energy savings: a) changes in energy use and/or rate schedules which occur after issuance of the Loan, except as specified in Special Conditions, if any, as detailed in this Agreement, b) deviations in the Project work scope from what was approved by the Energy Commission, c) changes in the Borrower's facility and/or equipment which occur after the issuance of the Loan, including, but not limited to maintenance, operations, schedules, employees and facility alterations and expansions, d) deviations, omissions or errors found in the loan application and technical study after the Loan award. The Borrower is responsible for ensuring the accuracy of the information contained in its loan application and technical study. In the event annual energy cost savings resulting from the Project, as determined by the Energy Commission, fail to equal or exceed the amount due under this Agreement, this Agreement may be renegotiated to assure that the repayment amount does not exceed the actual energy savings or avoided costs resulting from the Project, and the Promissory Note will be revised accordingly. In no event, however, will the number of semiannual installments payable hereunder and under the Promissory Note exceed forty. C. The Borrower shall obtain and maintain in its records any and all permits and licenses required to install or operate the Project and shall comply with all local, state, and federal laws, rules and codes concerning the Project. The Borrower shall maintain the Project in good working order for the duration of the Loan and shall insure that staff members are provided appropriate training on the operation and maintenance of the Project. The Borrower shall maintain insurance on the Project and, in the event of any casualty loss covered by such insurance policy, apply the proceeds to the repair of the Project or, with the approval of the Energy Commission, may use the insurance proceeds to install alternate projects to generate alternative energy cost savings to repay the Loan. D. The Borrower agrees to provide the Energy Commission with the following information for three years following completion of the Project, unless the Energy Commission requests a longer period: (1) the annual computation, required by Section 25414 of the Energy Conservation Assistance Act, of energy cost savings for the most recent fiscal year, calculated in the manner and provided in the format prescribed by the Energy Commission; and (2) any information or change in assumptions or operations which might affect the Energy Commission's initial determination of energy savings. E. The Borrower authorizes any official or agent of the Energy Commission, or the State to conduct physical inspections of the Project before the Bond -Funded Loan Agreement Exhibit A 001 -17 -ECD Rev. January 24, 2017 GKLFEB Page 4 of 10 City of San Rafael 10 commencement; during construction, installation and implementation of the Project; and at any time prior to the complete repayment of the Loan. In each contract entered into with suppliers of goods and services to install, conduct, or operate the Project, including management services, the Borrower shall include terms which allow any officer or agent of the Energy Commission or the State access to the Project site and to any books, documents, or records directly relevant to the Project. F. Borrower will execute a continuing disclosure agreement to provide annual information and other operating or financial information as required by the Energy Commission and applicable law if Borrower is notified by the Energy Commission that: 1) its aggregate loan repayments equal or exceed 10 percent of the aggregate annual debt service on any series of Bonds, the repayment of which is secured by such loan or loans of the Borrower; or 2) its aggregate loans represent more than 10 percent of the aggregate principal amount of all Bond -funded loans pledged to a single Bond series. G. If, prior to final repayment of the Loan, the Borrower sells the equipment or material installed with the proceeds of the Loan or sells the building, facility or system in which the Project has been implemented, then the Borrower shall apply the sale proceeds to repay any remaining balance due under this Agreement in full at the time of such sale. All such transactions shall comply with the requirements in Exhibit D, Borrower Tax Certificate. The Borrower shall notify the Energy Commission within five business days of the date on which the Borrower enters into an agreement to effect such transaction. The Borrower shall repay the Energy Commission within 30 calendar days of receiving an invoice from the Energy Commission for the balance due. H. In accordance with Section 25415 of the Energy Conservation Assistance Act, the Borrower covenants to take such action as may be necessary to include all payments due hereunder in its annual budget and to make the necessary annual appropriations for all such payments. The obligation of the Borrower to make such payments shall be limited to the savings realized by the Borrower as a result of implementing the Project funded by the Loan. DEFAULT A. The Borrower's failure to comply with any of the terms of this Agreement shall constitute a breach of this Agreement and an event of default. In such case, the Energy Commission may declare this Agreement to have been breached and be released from any further performance hereunder. Bond -Funded Loan Agreement Exhibit A 001 -17 -ECD Rev. January 24, 2017 GKLFEB Page 5 of 10 City of San Rafael B. In the event of any default or breach of this Agreement by the Borrower, the Energy Commission, without limiting any of its other legal rights or remedies, may, to the extent permitted by law, declare the Promissory Note evidencing this Loan to be immediately due and payable. 11. TERMINATION A. With Cause The Energy Commission may, at its option, terminate this Agreement with cause in whole or in part, at any time prior to the funding of the Loan, upon giving five (5) days advance notice in writing to the Borrower. "Cause" includes without limitation: 1) Failure to perform or breach of any of the terms or covenants at the time and in the manner provided in this Agreement; or 2) Significant change in Energy Commission or State policy such that the work or product being funded would not be supported by the Energy Commission; or 3) Reorganization to a business entity unsatisfactory to the Energy Commission. B. Without Cause The Energy Commission may, at its option, terminate this Agreement without cause in whole or in part, at any time prior to the funding of the Loan, upon giving thirty (30) days advance notice in writing to the Borrower. 12. REPORTING A. Progress reports are due each calendar quarter until Project completion. At a minimum, Borrower shall submit progress reports in accordance with the following schedule: PROGRESS REPORT SCHEDULE For the Period Covering Report Due Date January 1 through March 31 Aril 5 April 1 through June 30 Jul 5 July 1 through September 30 October 5 October 1 through December 31 January 5t B. A final report is due no later than (sixty) 60 days after Project completion. Bond -Funded Loan Agreement Exhibit A 001 -17 -ECD Rev. January 24, 2017 GKLFEB Page 6 of 10 City of San Rafael 13 C. The Energy Commission will not process an invoice unless the Borrower's report submittals are up to date. D. If requested by the Energy Commission, Borrower shall submit, within ten (10) days after the Energy Commission's written request, a status report on its activities to date, pursuant to this Agreement. E. Reports shall be in a format as determined by the Energy Commission. F. The Borrower shall submit reports regarding energy savings as described in Section 9.D above. GENERAL TERMS A. Indemnification by the Borrower. The Borrower agrees to indemnify, defend, and save harmless the Energy Commission, the State, and their officers, agents, and employees from any and all claims, losses, or costs (including reasonable attorney fees) arising out of, resulting from, or in any way connected with: (1) the Loan or this Agreement, or the financing or the operation of the facilities financed with the Loan; or (2) the Borrower's violation or alleged violation of any tax covenant made or tax certificate executed in connection with the Loan or this Agreement or any action of the Borrower that causes interest on any bonds secured by repayment of the Loan to be included in gross income of the owners of such bonds for federal income tax purposes. B. Ownership of Equipment and Material. All equipment and material acquired under this Agreement shall become the property of the Borrower at time of purchase. The Borrower shall obtain and maintain in its records a written waiver of all claims, other than those previously made in writing and still unsettled, from each contractor who supplies goods and services, including management services, in connection with the Project. C. Independent Capacity. The Borrower, and the agents and employees of the Borrower, in the performance of this Agreement, shall act in an independent capacity and not as officers or employees or agents of the Energy Commission or the State of California. D. Assignment. Without the written consent of the Energy Commission, this Agreement is not assignable or transferable by the Borrower either in whole or in part. The Energy Commission may assign its rights under this Agreement for security purposes, and in such event the assignee of this Loan Agreement, including the bond trustee of any bonds which may be secured by repayment of this Loan, shall be entitled to enforce the provisions hereof and shall be a third party beneficiary of this Agreement. Bond -Funded Loan Agreement Exhibit 001 -17 -ECD Rev. January 24, 2017 GKLFEB Page 7 of 10 City of San Rafael E. Time of the Essence. Time is of the essence in this Agreement. Borrower is required to take timely actions which, taken collectively, move to completion of the purpose for which this Loan was awarded. The Commission Project Manager will periodically evaluate the progress toward completion. If the Commission Project Manager determines that the Borrower is not progressing toward completion within one (1) year after the effective date of this Agreement, the Commission Project Manager may, without penalty or prejudice to any of the Energy Commission's other remedies, terminate this Agreement. F. Amendment. No amendment or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties hereto, and no oral understanding or agreement not incorporated herein shall be binding on any of the parties hereto. G. Severability. In the event that any provision of this Agreement is unenforceable or held to be unenforceable, then the parties agree that all other provisions of this Agreement have force and effect and shall not be affected thereby. H. Governinq Law and Venue. This Agreement is governed by and shall be interpreted in accordance with the laws of the State of California. Venue shall be in Sacramento County. I. Non-discrimination. During the performance of this Agreement, the Borrower and its contractors and subcontractors shall not unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of sex, race, color, ancestry, religious creed, national origin, physical disability (including HIV and AIDS), mental disability, medical condition (cancer), age (over 40), marital status, and family care leave. The Borrower and its contractors and subcontractors shall insure the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. The Borrower and its contractors and subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Government Code Section 12990 (a -f) et seq.) and the applicable regulations promulgated thereunder (California Code of Regulations, Title 2, Section 7285 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code Section 12990 (a -f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations, are incorporated into this agreement by reference and made a part hereof as if set forth in full. The Borrower and its contractors and its subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a Bond -Funded Loan Agreement Exhibit A 001 -17 -ECD Rev. January 24, 2017 GKLFEB Page 8 of 10 City of San Rafael collective bargaining or other agreement. The Borrower and its contractors shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under this Agreement. Incorporation of Energy Conservation Assistance Act. The Energy Conservation Assistance Act, together with any applicable rules, regulations or procedures authorized by such statute, is incorporated by reference in this Agreement. K. Borrower Authorization. The Borrower certifies it has full power and authority to enter into this Agreement, and this Agreement has been duly authorized, executed and delivered by the Borrower. The Borrower acknowledges the resolution of its governing body or other official action authorizing it to enter into this Agreement. The Borrower also authorizes such further acts as are necessary, including execution of the Promissory Note, to implement and further the intent of this Agreement. L. Prevailing Wage. The Borrower shall comply with Chapter 1 (commencing with Section 1720) of Part 7 of Division 2 of the Labor Code relating to the payment of prevailing wage for work performed on the Project financed in whole or in part with the proceeds of the Loan. M. Funding Eligibility. By signing this Agreement, Borrower certifies it is eligible to receive state funding under all applicable laws, including but not limited to Chapter 2.8 "Project Labor Agreements", of Part 1, of Division 2 of the Public Contract Code. 14. TAX COVENANTS The Borrower acknowledges that the proceeds of bonds issued by the California Infrastructure and Economic Development Bank, or other issuer authorized by law, may be used to fund all or a portion of this Loan and, in consideration of such funding, the Borrower hereby covenants that it shall not take any action, or fail to take any action, if any such action or failure to take action would adversely affect the exclusion from gross income of interest on such bonds under Section 103 of the Internal Revenue Code of 1986 and the regulations issued thereunder, as the same may be amended from time to time. In furtherance of the preceding sentence, the Borrower hereby covenants that it will comply with the provisions of the Tax Certificate which is attached hereto as Exhibit D and incorporated herein as if fully set forth herein. 15. NOTICE Any notice required to be given to the Energy Commission hereunder shall be sent to the person and address listed under Legal Notices in Exhibit G, Contacts, Bond -Funded Loan Agreement Exhibit A 001 -17 -ECD Rev. January 24, 2017 GKLFEB Page 9 of 10 City of San Rafael or at such other address as the Energy Commission may designate in writing to the Borrower. Any notice required to be given to the Borrower hereunder shall be sent to the address shown for Borrower in this Agreement, or at such other address as the Borrower shall designate in writing to the Energy Commission. Notice to either party may be given using the following delivery methods: U.S. mail, overnight mail, or personal delivery, providing evidence of receipt, to the respective parties identified in this Agreement. Delivery by fax or e-mail is not considered notice for the purposes of this Agreement. Notice shall be effective when received, unless a legal holiday for the State commences on the date of the attempted delivery in which case the effective date shall be postponed 24 hours, or whenever the next business day occurs. Bond -Funded Loan Agreement Exhibit A 001 -17 -ECD Rev. January 24, 2017 GKLFEB Page 10 of 10 City of San Rafael EXHIBIT A ATTACHMENT 1 BUDGET DETAIL/PROJECT COST AND SAVINGS This loan is made to The City of San Rafael ("Borrower") for an energy conservation project. The project consists of the efficiency measures listed in Table -1. This Table summarizes the estimated project costs, savings and simple payback* for the Project. Table 1: List of Energy Measures and Estimated Energy Savings Energy Efficiency Estimated Estimated Estimated Project Simple Measures (EEM) Annual Annual Annual Costs Payback Electric Natural Cost (years) Savings Gas Savings (kWh) Savings (therms) Lighting -Interior 163,008 $30,692 $297,255 9.7 Lighting -Exterior 46,266 $9,031 $27,057 3.0 Energy Management Control System 26,537 2,338 $6,819 $23,528 3.5 (EMCS) Upgrade Streetlights 809,273 $129,256 $830,973 6.4 Total 1,045,084 2,338 $175,798 $1,178,813 6.7 *Simple Payback is based on the Loan amount. The Borrower shall implement the only measure listed in Table 1. If Borrower does not complete the measures or deviates from the quantities and specifications listed in Table 1, the Energy Commission will calculate the maximum loan amount supported by the Project. The loan amount will be determined by the lesser of: (1) multiplying the annual energy cost savings by 17; (2) total Project costs; or (3) approved loan amount. Budget Details Exhibit A, Attachment 1 001 -17 -ECD Rev 6/22/2017 Pagel of 2 City of San Rafael A letter of agreement or loan amendment may be necessary to document these changes, at the discretion of the Energy Commission. If the Borrower has received disbursements exceeding the maximum loan amount supported by the Project, the Borrower shall refund the difference to the Energy Commission within 30 days of notification. Budget Details Exhibit A, Attachment 1 001 -17 -ECD Rev 6/22/2017 Page 2 of 2 City of San Rafael EXHIBIT B PROMISSORY NOTE LOAN NUMBER: 001 -17 -ECD PRINCIPAL AMOUNT: $1,178,813 INTEREST RATE: 1% For value received, the undersigned, (hereinafter referred to as the "Borrower"), promises to pay to the order of the State of California, Energy Resources Conservation and Development Commission (hereinafter referred to as the "Energy Commission"), at its principal place of business at 1516 Ninth Street, Sacramento, California 95814, or at such other place as the Energy Commission may designate the principal sum of one million one hundred seventy eight thousand eight hundred thirteen dollars $1,178,813 or such lesser amount as shall equal the aggregate amount disbursed to the Borrower by the Energy Commission pursuant to the above -referenced Energy Conservation Assistance Act Loan Agreement (the "Loan Agreement") between the Borrower and the Energy Commission, together with interest thereon at the rate of 1% percent per annum on the unpaid principal, computed from the date of each disbursement to the Borrower. Principal, together with interest thereon, is due and payable in semiannual installments as specified in the Estimated Amortization Schedule, attached hereto as Exhibit B, Attachment 1 and as amended in the Final Amortization Schedule, beginning on or before December 22 of the fiscal year following the year in which the Project is completed and continuing thereafter on each June 22 and December 22 until said principal and interest shall be paid in full. The Final Amortization Schedule, and any amended Final Amortization Schedule(s), are not attached but are expressly incorporated by reference herein. 2. Payments received will be first applied to billed interest, if any, and the balance, if any, to principal. If all principal is repaid, the balance is applied to accrued interest. 3. Payment of any scheduled installment received within thirty (30) days of the due date shall be considered to have been received on the due date. Interest on the principal portion of the payment accrues through the due date. 4. Payment of any scheduled installment received more than thirty (30) days after the due date shall be considered late. Interest on the principal portion of the payment accrues through the actual date payment is received. 5. The Borrower may prepay this Promissory Note in full or in part, without penalty. 6. In accordance with Section 25415 of the Energy Conservation Assistance Act, the Borrower covenants to take such action as may be necessary to include all payments due hereunder in its annual budget and to make the necessary annual appropriations for all such payments. The obligation of the Borrower to make Bond Funded Promissory Note Exhibit B 001 -17 -ECD Rev. January 24, 2017 GKLFEB Page 1 of 3 City of San Rafael such payments shall be limited to the savings realized by the Borrower as a result of implementing the Project funded by the Loan. 7. If any installment is not paid within thirty (30) days after its due date, the Energy Commission, at its option, may require the Borrower to pay a late charge equal to five percent (5%) of the amount of the installment or Five Dollars ($5.00), whichever is greater. 8. On the occurrence of any event of default, the Energy Commission, at its sole election and without limiting any of its other legal rights or remedies, may, to the extent permitted by law, declare all or any portion of the principal and accrued interest on this Promissory Note to be immediately due and payable and may proceed at once without further notice to enforce this Promissory Note according to law. 9. Each of the following occurrences shall constitute an event of default: A. Failure of the Borrower to repay any principal or interest when due under the terms of this Promissory Note; B. Termination of the Loan Agreement pursuant to the terms thereof or breach by the Borrower of any terms of said Loan Agreement; C. Failure of the Borrower to undertake in a timely way the express and implied activities for which said Loan Agreement has been executed; D. Failure of the Borrower to obtain prior written Energy Commission approval before undertaking a change in the scope of the activities for which said Loan Agreement has been executed; or E. Occurrence of: (1) the Borrower becoming insolvent or bankrupt or being unable or admitting in writing its inability to pay its debts as they mature or making a general assignment for the benefit of or entering into any composition or arrangement with creditors; (2) proceedings for the appointment of a receiver, trustee, or liquidator of the assets of the Borrower or a substantial part thereof, being authorized or instituted by or against the Borrower; or (3) proceedings under any bankruptcy, reorganization, readjustment of debt, insolvency, dissolution, liquidation or other similar law, or any jurisdiction being authorized or instituted against the Borrower. 10. No delay or failure of the Energy Commission in the exercise of any right or remedy hereunder or under any other agreement which secures or is related hereto shall affect any such right or remedy, and no single or partial exercise of any such right or remedy shall preclude any further exercise thereof, and no action taken or omitted by the Energy Commission shall be deemed a waiver of any such right or remedy. Bond Funded Promissory Note Exhibit B 001 -17 -ECD Rev. January 24, 2017 GKLFEB Page 2 of 3 City of San Rafael 11. Any notice to the Borrower provided for in this Promissory Note shall be given by mailing such notice by certified mail, return receipt requested, addressed to the Borrower at the address stated in the Loan Agreement, or to such other address as the Borrower may designate by notice to the Energy Commission. Any notice to the Energy Commission shall be given by mailing such notice by certified mail, return receipt requested, to the Energy Commission at the address stated in the Loan Agreement, or at such other address as may have been designated by notice to the Borrower. 12. If suit is brought to collect any part of this Promissory Note, the Energy Commission shall be entitled to collect all reasonable costs and expenses of said suit and any appeal therefrom, including reasonable attorney's fees. 13. This Promissory Note shall be binding upon the Borrower and its permitted successors and assigns and upon the Energy Commission and its permitted successors and assigns. Without the written consent of the Energy Commission, this Promissory Note is not assignable or transferable by the Borrower either in whole or in part. The Energy Commission may assign its rights under this Promissory Note for security purposes, and in such event the assignee of this Promissory Note, including the bond trustee of any bonds which may be secured by repayments of this Promissory Note, shall be entitled to enforce the provisions hereof and shall be a third party beneficiary of this Promissory Note. 14. This Promissory Note shall be construed and enforced in accordance with the laws of the State of California. City of San Rafael BORROWER Jim Schutz PRINTED NAME OF AUTHORIZED R PRE T TI E r ORIZE GNATURE City Manager, City of San Rafael TITLE ni 11 DATtj Bond Funded Promissory Note Exhibit B 001 -17 -ECD Rev. January 24, 2017 GKLFEB Page 3 of 3 City of San Rafael State of California its Energy Resources Conservation and Development Commission 1516 Ninth Street Sacramento, California 95814-5512 Exhibit B -Attachment 1 Estimated Amortization Schedule Loan Number: 001 -17 -ECD Number of Payments: 15 Recipient: City of San Rafael Estimated Disbursement Date: 7/12/2019 Loan Amount: $1,178,813.00 Estimated Project Completion Date: 7/12/2019 Interest Rate: 1.00% Annual Energy Savings: $175,798.00 Unscheduled Unschedulec Transaction Payment Invoice Receipt Disbursement Billing Invoice Repay Principal Repay Interest Principal Interes' Date Number Number Number Amount InlerestAmounl Amount Amount Amount Amounl Trans # Payment Date Accrued Interest Payment Amount Interest Payment Principal Payment Principal Balance Disbursement 1 7/12/2019 $0.00 ($1,178,813.00) $0.00 ($1,178,813.00) $1,178,813.00 Payment 1 12/22/2020 $17,084.71 $82,540.64 $17,084.71 $65,455.93 $1,113,357.07 Payment 2 6/22/2021 $5,551.53 $82,540.64 $5,551.53 $76,989.11 $1,036,367.97 Payment 3 12/22/2021 $5,196.04 $82,540.64 $5,196.04 $77,344.60 $959,023.37 Payment 4 6/22/2022 $4,781.96 $82,540.64 $4,781.98 $77,758.66 $681,264.70 Payment 5 12/22/2022 $4,418.40 $82,540.64 $4,418.40 $78,122.24 $803,142.46 Payment 6 6/22/2023 $4,004.71 $82,540.64 $4,004.71 $78,535.93 $724,606.53 Payment 7 12/22/2023 $3,632.96 $82,540.64 $3,632.96 $78,907.68 $645,698.85 Payment 8 6/22/2024 $3,237.34 $82,540.64 $3,237.34 $79,303.30 $566,395.55 Payment 9 12/22/2024 $2,839.74 $82,540.64 $2,839.74 $79,700.90 $486,694.65 Payment 10 6/22/2025 $2,426.81 $82,540.64 $2,426.81 $80,113.83 $406,580.81 Payment 11 12/22/2025 $2,038.47 $82,540.64 $2,038.47 $80,502.17 $326,078.65 Payment 12 6/22/2026 $1,625.93 $82,540.64 $1,625.93 $80,914.71 $245,163.93 Payment 13 12/22/2026 $1,229.18 $82,540.64 $1,229.18 $81,311.46 $163,852.47 Payment 14 6/22/2027 $817.02 $82,540.64 $817.02 $81,723.62 $82,128.85 Payment 15 12/22/2027 $411.77 $82,540.62 $411.77 $82,128.85 $0.00 Page 1ofI EXHIBIT C Contacts Commission Project Manager: Borrower Project Manager: Armando Ramirez Talia Smith California Energy Commission City of San Rafael 1516 Ninth Street, MS - 23 Senior Management Analyst Sacramento, CA 95814 111 Morphew Street Phone: (916) 654-4861 San Rafael, CA 94901 Fax: (916) 654-4368 415-485-3354 e-mail: armando.ramirez@energy.ca.gov talia.smith@cityofsanrafael.org Commission Loan Officer: Borrower Administrator: California Energy Commission Talia Smith 1516 Ninth Street, MS -18 City of San Rafael Sacramento, CA 95814 Senior Management Analyst Phone: (916) 654-4381 111 Morphew Street Fax: (916) 654-4423 San Rafael, CA 94901 e-mail: 415-485-3354 talia.smith@cityofsanrafael.org Commission Accounting Officer: Borrower Accounting Officer: Talia Smith California Energy Commission City of San Rafael 1516 Ninth Street, MS - 23 Senior Management Analyst Sacramento, CA 95814 111 Morphew Street Phone: (916) San Rafael, CA 94901 Fax: (916) 653-1435 415-485-3354 e-mail: talia.smith@cityofsanrafael.org Commission Legal Notice: Borrower's Legal Officer: Rachel Grant -Kiley Lisa Goldfien Contracts, Grants and Loans Office Manager City of San Rafael 1516 9th Street, MS -18 Assistant City Attorney Sacramento, CA 95814-5512 1400 5th Avenue Phone: (916) 654-4379 San Rafael, CA 94901 Fax: (916) 654-4076 Tel: (415) 485-3080 e-mail: Rachel.Grant-Kiley@energy.ca.gov lisa.goldfien@cityofsanrafael.org June 2017 Page 1 of 1 001 -17 -ECD Contacts List City of San Rafael EXHIBIT D TAX CERTIFICATE LOAN NUMBER: 001 -17 -ECD REVENUE BOND SERIES: 2003A / 2005A REVENUE BOND ISSUANCE DATE: April 10, 20031 May 11, 2005 In connection with the issuance by the California Infrastructure and Economic Development Bank (the "Bank"), or other issuer authorized by law, of its Bonds, (the "Bonds"), a portion of the proceeds of which will be used to fund, in whole or in part, a loan to the undersigned borrower (the "Borrower'), under the Loan Agreement (the "Loan"), from the California Energy Commission (the "Energy Commission"), to finance the acquisition and/or construction of a capital project of the Borrower (the "Project"), the Borrower hereby certifies, with respect to proceeds of the Loan drawn by the Borrower, as follows: Use of Proceeds and Project. During the period in which the Loan is outstanding, the Borrower shall not (1) sell or otherwise dispose of the Project or any portion thereof to an entity that is not a governmental unit (for this purpose "governmental unit" shall mean only a state or local governmental unit), (2) enter into a lease of the Project or any portion thereof, regardless of type or duration, with an entity other than a governmental unit, (3) enter into a management or service contract with respect to the Project or any portion thereof with an entity other than a governmental unit, unless such management or service contract complies with the requirements of Revenue Procedure 97-13, 1997-1 C.B. 632, as amended by Revenue Procedure 2001-39, 2001-28, I.R.B. 38 (collectively, "Revenue Procedure 97-13"), (4) otherwise enter into any other arrangement with respect to the Project or any portion thereof that gives rise to a "private business use," within the meaning of Section 141 of the Internal Revenue Code of 1986, as amended (the "Code"), of the Project or any portion thereof, or (5) make any other use of the proceeds of the Loan that gives rise to a "private business use" of the proceeds of the Loan or any portion thereof. The Borrower shall notify the Energy Commission of any of the aforementioned transactions within five business days of the date on which the Borrower enters into an agreement to effect such transaction. In the case of a sale or disposition of the Project or any portion thereof by the Borrower to a governmental unit, such sale or disposition shall obligate the Borrower to require said governmental unit to assume all covenants and responsibilities in this section. In the event the Borrower sells or disposes of the Project or any portion thereof to a Governmental Unit, the Borrower shall, upon such sale or disposition, repay the Loan or portion thereof allocable to the Project or portion thereof, as the case may be, and shall apply any proceeds it derives from the sale of the Project or portion thereof, as the case may be, to such repayment. Such amount shall be due and payable to the Energy Commission within thirty (30) calendar days of receiving an invoice from Bond Funded Tax Certificate Exhibit D 001 -17 -ECD Rev. August 1, 2013 GKAFLFMS Page 1 of 3 City of San Rafael the Energy Commission for the balance due. As of the date hereof, (a) no portion of the Project is subject to a lease with a person that is not a governmental unit, and (b) no portion of the Project is subject to a management or service contract, with an entity other than a governmental unit, that does not comply with Revenue Procedure 97-13. 2. No Further Loans. The Borrower shall not allocate any portion of the proceeds of the Loan to the financing of a loan by the Borrower to another entity. 3. No Payment of Debt. The Borrower shall not use any portion of the proceeds of the Loan to pay the principal of or interest on any outstanding indebtedness of the Borrower. 4. Permitted Bases for Paying Expenses. All proceeds of the Loan drawn by the Borrower shall either (1) be used to reimburse the Borrower for costs of the Project paid by the Borrower (a) in anticipation of receiving such proceeds, (b) prior to the date of requisition for such draw, and (c) after the date of approval of the Energy Commission resolution authorizing payment from proceeds of the Bonds or the Energy Conservation Assistance Account, (2) reflect a direct payment by or on behalf of the Energy Commission to the Borrower's vendor in accordance with an arrangement approved, established and implemented by the Energy Commission with respect to such Borrower, or (3) reflect an alternative arrangement that has been approved by Bond Counsel with respect to the Bonds and communicated in writing by the Energy Commission to the Borrower. 5. Capital Expenditures Only. The Borrower shall allocate the proceeds of the Loan solely to costs of the Project that constitute capital expenditures (which may include, among other things, "soft costs" that are properly capitalizable into the cost of the Project). No expenditures to which proceeds of the Loan will be allocated by the Borrower will be operating or working capital expenditures. 6. Economic Life of Proiect. The Project has a reasonably expected economic life that is at least equal to the term of the Loan. 7. No Replacement of Other Moneys. No portion of the proceeds of the Loan is being used as a substitute for other moneys that (a) would have been used to finance the Project to which proceeds of the Loan are being allocated if proceeds of the Bonds were not used to fund the Loan, and (b) have been or will be used to acquire, directly or indirectly, securities or obligations or other investment property. 8. Payment of Loan Debt Service. Payments of debt service on the Loan shall be made directly by the Borrower and, except as provided in the next sentence, the Borrower shall not set aside any moneys for such purpose in advance of such payments. The Borrower may, if it chooses to do so, set aside moneys in a fund or account in advance of a debt service payment date, but only where the Bond Funded Tax Certificate Exhibit D 001 -17 -ECD Rev. August 1, 2013 GKAFLFMS Page 2 of 3 City of San Rafael Borrower makes such set-aside no more than one year prior to the time such money will be needed, such that any moneys so set aside, together with investment earnings thereon, will be used within one year of such set-aside to pay debt service on the Loan. Any fund or account so established for such purpose will be depleted no less frequently than annually. The Borrower shall make no other set-aside, nor establish any other fund or account, that is reasonably expected to pay debt service on the Loan or that is otherwise pledged as collateral for the Loan so as to create a reasonable assurance that amounts represented by such set-aside, or in such fund or account, would be available to pay debt service on the Loan in the event the Borrower were to encounter financial difficulties. Nothing in this Section is intended to affect the requirement that the Borrower make payments of debt service on the Loan from certain energy-related savings. 9. No Federal Guarantee. The Borrower shall not enter into any arrangement with respect to the Project or any portion thereof obligating the United States or any agency or instrumentality thereof to make payments of any kind to the Borrower. 10. No Purchase of Bonds. The Borrower shall not purchase any of the Bonds, on the open market or otherwise. City of San Rafael BORROWER 94-6000424 FEDERAL EMPLOYER IDENTIFICATION NUMBER Jim Schutz PRINTED NAME OF AUTHORIZED RE RESENT TIV MAT ORIZE 1 NATURE City Manager, City of San Rafael TITLE q/11117 DAME I Bond Funded Tax Certificate Exhibit D 001 -17 -ECD Rev. August 1, 2013 GKAFLFMS Page 3 of 3 City of San Rafael State of California Energy Resources Conservation and Development Commission 1516 Ninth Street Sacramento, California 95814-5512 Exhibit B -Attachment 1 Estimated Amortization Schedule Loan Number: 001 -17 -ECD Number of Payments: 15 Recipient: City of San Rafael Estimated Disbursement Date: 7/12/2019 Loan Amount: $1,178,813.00 Estimated Project Completion Date: 7/12/2019 Interest Rate: 1.00% Annual. Energy Savings: $175,798.00 Trans # Payment Date Accrued Interest Unscheduled Unschedulec Transaction Payment Involce Receipt Disbursement Billing Invoice Repay Principal Repay Interest Principal Interes Dale Number Number Number Amount Inlerest Amount Amount Amount Amount Amoun Trans # Payment Date Accrued Interest Payment Amount Interest Payment Principal Payment Principal Balance Disbursement 1 7/12/2019 $0.00 ($1,178,813.00) $0.00 ($1,178,813.00) $1,178,813.00 Payment 1 12/22/2020 $17,084.71 $82,540.64 $17,084.71 $65,455.93 $1,113,357.07 Payment 2 6/22/2021 $5,551.53 $82,540.64 $5,551.53 $76,989.11 $1,036,367.97 Payment 3 12/22/2021 $5,196.04 $82,540.64 $5,196.04 $77,344.60 $959,023.37 Payment 4 6/22/2022 $4,781.98 $82,540.64 $4,781.98 $77,758.66 $881,264.70 Payment 5 12/22/2022 $4,418.40 $82,540.64 $4,418.40 $78,122.24 $803,142.46 Payment 6 6/22/2023 $4,004.71 $82,540.64 $4,004.71 $78,535.93 $724,606.53 Payment 7 12/22/2023 $3,632.96 $82,540.64 $3,632.96 $78,907.68 $645,698.85 Payment 8 e 6/22/2024 $3,237.34 $82,540.64 $3,237.34 $79,303.30 $566,395.55 Payment 9 12/22/2024 $2,839.74 $82,540.64 $2,839.74 $79,700.90 $486,694.65 Payment 10 6/22/2025 $2,426.81 $82,540.64 $2,426.81 $80,113.83 $406,580.81 Payment it 12/22/2025 $2,038.47 $82,540.64 $2,038.47 $80,502.17 $326,078.65 Payment 12 6/22/2026 $1,625.93 $82,540.64 $1,625.93 $80,914.71 $245,163.93 Payment 13 12/22/2026 $1,229.18 $82,540.64 $1,229.18 $81,311.46 $163,852.47 Payment 14 6/22/2027 $817.02 $82,540.64 $817.02 $81,723.62 $82,128.85 Payment 15 12/22/2027 $411.77 $82,540.62 $411.77 $82,128.85 $0.00 Page 1 of 1 EXHIBIT C Contacts Commission Project Manager: Borrower Project Manager: Armando Ramirez Talia Smith California Energy Commission City of San Rafael 1516 Ninth Street, MS - 23 Senior Management Analyst Sacramento, CA 95814 111 Morphew Street Phone: (916) 654-4861 San Rafael, CA 94901 Fax: (916) 654-4368 415-485-3354 e-mail: armando.ramirez@energy.ca.gov talia.smith@cityofsanrafael.org Commission Loan Officer: Borrower Administrator: Tonya Heron Talia Smith California Energy Commission City of San Rafael 1516 Ninth Street, MS -18 Senior Management Analyst Sacramento, CA 95814 111 Morphew Street Phone: (916) 654-4484 San Rafael, CA 94901 Fax: (916) 654-4423 415-485-3354 e-mail: Tonya.Heron@energy.ca.gov talia.smith@cityofsanrafael.org Commission Accounting Officer: Borrower Accounting Officer: Talia Smith Molly Zhong City of San Rafael California Energy Commission Senior Management Analyst 1516 Ninth Street, MS - 23 111 Morphew Street Sacramento, CA 95814 San Rafael, CA 94901 Phone: (916) 653-8555 415-485-3354 Fax: (916) 653-1435 talia.smith@cityofsanrafael.org e-mail: Molly.Zhong@energy.ca.gov Commission Legal Notice• Borrower's Legal Officer: Rachel Grant -Kiley Lisa Goldfien Contracts, Grants and Loans Office Manager City of San Rafael 1516 9th Street, MS -18 Assistant City Attorney Sacramento, CA 95814-5512 1400 5th Avenue Phone: (916) 654-4379 San Rafael, CA 94901 Fax: (916) 654-4076 Tel: (415) 485-3080 e-mail: Rachel.Grant-Kiley@energy.ca.gov lisa.goldfien@cityofsanrafael.org June 2017 Page 1 of 1 001 -17 -ECD Contacts List City of San Rafael EXHIBIT D TAX CERTIFICATE LOAN NUMBER: 001 -17 -ECD REVENUE BOND SERIES: 2003A / 2005A REVENUE BOND ISSUANCE DATE: April 10, 20031 May 11, 2005 In connection with the issuance by the California Infrastructure and Economic Development Bank (the "Bank"), or other issuer authorized by law, of its Bonds, (the "Bonds"), a portion of the proceeds of which will be used to fund, in whole or in part, a loan to the undersigned borrower (the "Borrower'), under the Loan Agreement (the "Loan"), from the California Energy Commission (the "Energy Commission"), to finance the acquisition and/or construction of a capital project of the Borrower (the "Project"), the Borrower hereby certifies, with respect to proceeds of the Loan drawn by the Borrower, as follows: Use of Proceeds and Project. During the period in which the Loan is outstanding, the Borrower shall not (1) sell or otherwise dispose of the Project or any portion thereof to an entity that is not a governmental unit (for this purpose "governmental unit" shall mean only a state or local governmental unit), (2) enter into a lease of the Project or any portion thereof, regardless of type or duration, with an entity other than a governmental unit, (3) enter into a management or service contract with respect to the Project or any portion thereof with an entity other than a governmental unit, unless such management or service contract complies with the requirements of Revenue Procedure 97-13, 1997-1 C.B. 632, as amended by Revenue Procedure 2001-39, 2001-28, I.R.B. 38 (collectively, "Revenue Procedure 97-13"), (4) otherwise enter into any other arrangement with respect to the Project or any portion thereof that gives rise to a "private business use," within the meaning of Section 141 of the Internal Revenue Code of 1986, as amended (the "Code"), of the Project or any portion thereof, or (5) make any other use of the proceeds of the Loan that gives rise to a "private business use" of the proceeds of the Loan or any portion thereof. The Borrower shall notify the Energy Commission of any of the aforementioned transactions within five business days of the date on which the Borrower enters into an agreement to effect such transaction. In the case of a sale or disposition of the Project or any portion thereof by the Borrower to a governmental unit, such sale or disposition shall obligate the Borrower to require said governmental unit to assume all covenants and responsibilities in this section. In the event the Borrower sells or disposes of the Project or any portion thereof to a Governmental Unit, the Borrower shall, upon such sale or disposition, repay the Loan or portion thereof allocable to the Project or portion thereof, as the case may be, and shall apply any proceeds it derives from the. sale of the Project or portion thereof, as the case may be, to such repayment. Such amount shall be due and payable to the Energy Commission within thirty (30) calendar days of receiving an invoice from Bond Funded Tax Certificate Exhibit D 001 -17 -ECD Rev. August 1, 2013 GKAFLFMS Page 1 of 3 City of San Rafael the Energy Commission for the balance due. As of the date hereof, (a) no portion of the Project is subject to a lease with a person that is not a governmental unit, and (b) no portion of the Project is subject to a management or service contract, with an entity other than a governmental unit, that does not comply with Revenue Procedure 97-13. 2. No Further Loans. The Borrower shall not allocate any portion of the proceeds of the Loan to the financing of a loan by the Borrower to another entity. 3. No Payment of Debt_. The Borrower shall not use any portion of the proceeds of the Loan to pay the principal of or interest on any outstanding indebtedness of the Borrower. 4. Permitted Bases for Paving Expenses. All proceeds of the Loan drawn by the Borrower shall either (1) be used to reimburse the Borrower for costs of the Project paid by the Borrower (a) in anticipation of receiving such proceeds, (b) prior to the date of requisition for such draw, and (c) after the date of approval of the Energy Commission resolution authorizing payment from proceeds of the Bonds or the Energy Conservation Assistance Account, (2) reflect a direct payment by or on behalf of the Energy Commission to the Borrower's vendor in accordance with an arrangement approved, established and implemented by the Energy Commission with respect to such Borrower, or (3) reflect an alternative arrangement that has been approved by Bond Counsel with respect to the Bonds and communicated in writing by the Energy Commission to the Borrower. 5. Capital Expenditures Only. The Borrower shall allocate the proceeds of the Loan solely to costs of the Project that constitute capital expenditures (which may include, among other things, "soft costs" that are properly capitalizable into the cost of the Project). No expenditures to which proceeds of the Loan will be allocated by the Borrower will be operating or working capital expenditures. 6. Economic Life of Project. The Project has a reasonably expected economic life that is at least equal to the term of the Loan. 7. No Replacement of Other Moneys. No portion of the proceeds of the Loan is being used as a substitute for other moneys that (a) would have been used to finance the Project to which proceeds of the Loan are being allocated if proceeds of the Bonds were not used to fund the Loan, and (b) have been or will be used to acquire, directly or indirectly, securities or obligations or other investment property. 8. Payment of Loan Debt Service. Payments of debt service on the Loan shall be made directly by the Borrower and, except as provided in the next sentence, the Borrower shall not set aside any moneys for such purpose in advance of such payments. The Borrower may, if it chooses to do so, set aside moneys in a fund or account in advance of a debt service payment date, but only where the Bond Funded Tax Certificate Exhibit D 001 -17 -ECD Rev. August 1, 2013 GKAFLFMS Page 2 of 3 City of San Rafael Borrower makes such set-aside no more than one year prior to the time such money will be needed, such that any moneys so set aside, together with investment earnings thereon, will be used within one year of such set-aside to pay debt service on the Loan. Any fund or account so established for such purpose will be depleted no less frequently than annually. The Borrower shall make no other set-aside, nor establish any other fund or account, that is reasonably expected to pay debt service on the Loan or that is otherwise pledged as collateral for the Loan so as to create a reasonable assurance that amounts represented by such set-aside, or in such fund or account, would be available to pay debt service on the Loan in the event the Borrower were to encounter financial difficulties. Nothing in this Section is intended to affect the requirement that the Borrower make payments of debt service on the Loan from certain energy-related savings. 9. No Federal Guarantee. The Borrower shall not enter into any arrangement with respect to the Project or any portion thereof obligating the United States or any agency or instrumentality thereof to make payments of any kind to the Borrower. 10. No Purchase of Bonds. The Borrower shall not purchase any of the Bonds, on the open market or otherwise. City of San Rafael BORROWER 94-6000424 FEDERAL EMPLOYER IDENTIFICATION NUMBER Jim Schutz PRINTED NAME OF AUTHORIZED R�R - F Ivq AWTKORIZEIA SIGNATURE TITLE /(1 DATE Bond Funded Tax Certificate Exhibit D 001 -17 -ECD Rev. August 1, 2013 GKAFLFMS Page 3 of 3 City of San Rafael RESOLUTION NO. 14388 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL AUTHORIZING THE CITY MANAGER TO EXECUTE A SERVICES AGREEMENT WITH PG&E TO PERFORM PROJECT MANAGEMENT ON ENERGY EFFICIENCY UPGRADES TO VARIOUS CITY FACILITIES AND STREET LIGHTS FOR A NOT TO EXCEED AMOUNT OF $1,178,813 WHEREAS, the California Energy Commission (CEC) provides loans to schools, hospitals, local governments, special districts, and public care institutions to finance energy efficiency improvements; and WHEREAS, at its July 12, 2017 regular meeting, the CEC approved the City's loan request in the amount of $1,178,813.00, prepared and submitted on behalf of the City by PG&E, to make energy efficiency upgrades to various City facilities and all streetlights within the City; and WHEREAS, PG&E and the Department of Public Works have developed a Master Services Agreement, attached hereto as Exhibit A and incorporated herein by reference, for PG&E to manage and execute the project, as Public Works does not have staff capacity to take on such a large project; PG&E will manage all construction tasks, i.e., identify low bid contractors, secure new and dispose of old fixtures, oversee the construction, and warrant the work; and WHEREAS, the fees the City will pay PG&E to perform project management are included in the total CEC loan amount; and WHEREAS, that the amount of the CEC loan will be paid in full plus interest out of savings accruing to the City from the proposed energy efficiency upgrades; WHEREAS, pursuant to a Notice of a Public Hearing published in the Marin Independent Journal on Tuesday, August 22"d , 2017, on September 5, 2017 the City Council held a public hearing to consider approval of the Master Services Agreement set forth in Exhibit A; NOW THEREFORE, BE IT RESOLVED by the City Council of the City of San Rafael as follows: Per Government Code section 4217.12, the Council finds that anticipated cost to the City of San Rafael for thermal or electrical energy or conservations services provided by the energy efficiency system upgrades to be performed under the Master Services Agreement attached as Exhibit A hereto will be less than the anticipated marginal cost to the City of thermal, electrical, or other energy that would have been consumed by the City in the absence of those upgrades. 2. In compliance with the California Environmental Quality Act (CEQA), the City of San Rafael finds that the activities of modifications to present facilities and infrastructure, funded by the loan, are energy efficient upgrades which are exempt under CEQA Guidelines Section 15301. 3. The City Manager is authorized to execute a Master Services Agreement with PG&E, in the form attached hereto as Exhibit A, to perform the various energy efficiency system upgrades to city facilities and street lights as detailed in the efficiency loan from the California Energy Commission in the amount of $1,178,813.00. 4. The City Manager is hereby authorized and empowered to execute in the name of the City of San Rafael all other documents and take such other actions as may be necessary to implement and complete the energy efficiency projects authorized herein. I, ESTHER C. BEIRNE, Clerk of the City of San Rafael, hereby certify that the foregoing resolution was duly and regularly introduced and adopted at a regular meeting of the Council of said City on the 5`h day of September, 2017, by the following vote, to wit: AYES: COUNCIL MEMBERS: Bushey, Colin, Gamblin, McCullough & Mayor Phillips NOES: COUNCIL MEMBERS: None ABSENT: COUNCIL MEMBERS: None lGSrt"�A G - 12-4-ta2ue ESTHER C. BEIRNE, City Clerk File No. 06.01.229 EN Pacific Gas and Electric Company SERVICES AGREEMENT Agreement No: SST-SNRFL-0001 City of San Rafael This Services Agreement is made and entered into as of g -1 :2 ("Effective Date") by and between the City of San Rafael, with offices at 1400 Fifth Avenue, San Rafael, CA 94901 ("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 frilly 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 Cliange 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 Worlc 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. Page I of 17 11—y Pacific Gas and Electric Company Agreement No: SST-SNRFL-0001 City of San Rafael 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 I lazardous 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 Proiect. 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. Page 2 of 17 Pacific Gas and & Electric Company Agreement No: SST-SNRFI 0001 City of San Rafael 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. ]'his 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 Mana erg. 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 lime 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 ofamending this Agreement. Page 3 of 17 Pacific Cas and Electric Company 4. SERVICES. Agreement No: SST-SNRFL-0001 City of Sail Rafael 4.1 General. Customer may request that PG&E assist Customer in the implementation of one or more of the EOMs at set forth in Exhibit A, which is attached hereto and incorporated by reference herein. 4.1.1 Preliminary Audit. Al 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 Partics may enter into a Wort: Order setting forth a Scope of Worlc 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 Desipn and 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 Changed 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 Page 4 of 17 Pacific Gas and Electric Company Agreement No: SST-SNRFL-0001 City of San Rafael Change Order with respect to such Material Changed Condition. if [lie Parties fail to agree on a Change 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 I 1 (Dispute Resolution). (a) Handling; and Disposal of Hazardous Materials. CUStolncr 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 Obli atgr ions. 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 Page 5 of 17 Pacific Gas and R61 Electric Company Agreement No: SST -SN RFL -0001 City of San Rafacl 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 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. 1+ACILITV SAFETY AND HAZARDOUS MATERIALS 5.1 FacilityS. afety. 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 sliall 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 ltazardous 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 Ilazardous 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 PUnients. 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, provided that all such expenses shall have been pre -approved by Customer in writing. Expenses shall be Page 6 of 17 Pacific Gas and Electric Company Agreement No: SST -SN RFL -0001 City of San Rafael 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, 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 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 Warranties. 7.2.1 PG&E General Warranties. PG&E represents and warrants to Customer that: (a) it has the full 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 Nvith its terms. 7.2.2 PG&E Service Warranties. 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"). 7.2.3 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 7.2.2, 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 7.2.3 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 7.2.2. THE SERVICE WARRANTIES EXTEND TO CUSTOMER ONLY AND CANNOT BE ASSIGNED BY CUSTOMER. Page 7 of 17 IN Pacific Gas and Electric Company Agreement No: SST-SNRFL-0001 City of San Rafael 7.3 Third Party Warranties. PG&E shall use commercially reasonable efforts to obtain from all manufacturers 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 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 Third Party Warranty Exclusions and Customer Option. "file 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 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 or distributor directly to resolve any Third Party Warranty issues and Customer acknowledges that Customer and Equipment manufacturer 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 OTI-FER 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, 1N 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 WITI l THE WARILANTY SET FORTH IN THIS SECTION 7 OR AS TI IE PARTIES MAY EXPRESSLY AGREE IN ANY WORK ORDER OR AMENDMENT TO THIS AGREEMENT. 8. INSURANCE. 8.1 Scope of Coverage. During the term of this Agreement, PG&E shall maintain, at no expense to Customer, the following insurance coverage, and PG&E shall have the right to self -insure with respect to any of such coverage: 8.1.1 A commercial general liability insurance policy in the minimum amount of one million dollars ($1,000,000) per occurrence/two million dollars ($2,000,000) aggregate, for death, bodily injury, personal injury, or property damage. 8.1.2 An automobile liability (owned, non -owned, and hired vehicles) insurance policy in the minimum amount of one million dollars ($1,000,000) dollars per occurrence. Page 8 of 17 Pacific Gas and Electric Company Agreement No: SST-SNRPL-0001 City of San Rafael 8.1.3 A worker's compensation insurance policy, as required by the State of California. with statutory limits, and employer's liability insurance with limits of no less than one million dollars ($1,000,000) per accident for bodily injury or disease. PG&E worker's compensation insurance shall be specifically endorsed to waive any right of subrogation against Customer. 8.2 Other Insurance Requirements. The insurance coverage required of the PG&E in subparagraph 8.1 of this section above shall also meet the following requirements: 8.2.1 Except for worker's compensation insurance, the insurance policies shall be specifically endorsed to include Customer, its officers, agents, employees, and volunteers, as additionally named insureds (for both ongoing and completed operations) under the policies. 8.2.2 The additional insured coverage under PG&E's insurance policies shall be primary with respect to any insurance or coverage maintained by Customer and shall not call upon Customer's insurance or self-insurance coverage for any contribution. The "primary and noncontributory" coverage in PG&E's policies shall be at least as broad as ISO form CG20 01 04 13. 8.2.3 Except for worker's compensation insurance, the insurance policies shall include, in their text or by endorsement, coverage for contractual liability and personal injury. 8.2.4 If the insurance is written on a Claims Made Form, then, followung termination of this Agreement, said insurance coverage shall survive for a period of not less than five years. 8.2.5 The insurance policies shall provide for a retroactive date of placement coinciding with the effective date of this Agreement. 8.2.6 The limits of insurance required in this Agreement may be satisfied by a combination of primary and unnbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and noncontributory basis for the benefit of Customer (if agreed to in a written contract or agreement) before Customer's own insurance or self-insurance shall be called upon to protect it as a named insured. 8.2.7 It shall be a requirement Under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be available to Customer or any other additional insured party. Furthermore, the requirements for coverage and limits shall be: (1) the minnnttm coverage and limits specified in this Agreement; or (2) the broader coverage and rllaximum limits of coverage of any insurance policy or proceeds available to the named insured; whichever is greater. 8.3 Deductibles and SIR'S. Any deductibles or self-insured retentions in PG&E's insurance policies nnust be declared to and approved by Customer's City Attorney, and shall not reduce the limits of liability. Policies containing any self-insured retention (SIR) provision shall provide or be endorsed to provide that the SIR may be satisfied by either the named insured or Customer or other additional insured party. 8.4 Proof of Insurance. PG&E shall provide to Customer's City Attorney all of the following as requested: (1) Certificates of Insurance or a letter of self-insurance evidencing the insurance coverage required in this Agreement; (2) a copy of the policy declaration page and/or endorsement page listing all policy endorsements for the commercial general liability policy, if applicable, and (3) excerpts of policy Page 9 of 17 Pacific Gas and Electric Company Agreement No: SST-SNRFL-0001 City of San Rafael language or specific endorsements evidencing the other insurance requirements set forth in this Agreement as applicable. Customer reserves the right to obtain a full certified copy of any insurance policy and endorsements from PG&E. Failure to exercise this right shall not constitute a waiver of the right to exercise it later. The insurance shall be approved as to form and sufficiency by Customer's City Attorney. 9. INDEMNiFICATION. 9.1 Indemnification by Customer. 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 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, resulting from (i) Customer's breach of any representations, warranties, covenants, or obligations contained in this Agreement; or (ii) any data, Equipment, information, software or other property provided by Customer 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 are referred to as a "PG&E Claim"), except for those PG&E Claims arising out of PG&E's sole negligence or willful misconduct. PG&E shall promptly notify Customer of any PG&E Claim and shall (at Customer's sole expense) reasonably cooperate with Customer to facilitate the settlement or defense of such PG&E Claim. Customer shall, at its own expense, indemnify, defend and hold harmless the PG&E Indemnitees from and against all costs of defending the PG&E 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 PG&E Claim and the progress of such litigation or settlement. Customer shall not have any right to settle any such PG&E Claim without the specific prior written approval from a designated legal representative of the PG&E hndennnitees. 9.2 Indemnification by PG&E. Subject to the provisions of Section 10 of this Agreement, PG&E covenants and agrees that PG&E will indemnify, defend and hold harmless Customer, its officers, agents, employees and volunteers (collectively, the "Customer 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 Customer Indcnunitecs resulting from, arising out of or related to any claim for personal injury, including death, or property damage, including theft, caused to any of the Customer hndenunitees, Subcontractors or a third party by PG&E's action or inaction, whether negligence or intentional misconduct, resulting from (i) PG&E's breach of any representations, warranties, covenants, or obligations contained in this Agreement; or (ii) any data, Equipment, information, software or other property provided by PG&E to Custonner hereunder or any elements embodied therein, or that any of the Customer indemnitees' use of any of the foregoing infringe or misappropriate the intellectual property rights of any third party (each of the foregoing are referred to as a "Customer Claim"), except for those Customer Claims arising out of Customer's sole negligence or willful misconduct. Customer shall promptly notify PG&E of any Customer Claim and shall (at PG&E's sole expense) reasonably cooperate with PG&E to facilitate the settlement or defense of such Customer Claim. PG&E shall, at its own expense, indemnify, defend and hold harmless the Customer Indemnitees from and against all costs of defending the Customer Claim, including attorneys' fees and court costs (including those incurred by the Customer Indemnitees in enforcing this provision). PG&E shall keep Customer Indemnitees informed of, and consult with Customer Indemnitees in connection with the Pagc 10 of 17 RPacific Gas and al Electric Company Agreement No: S ST-SNRF L-000 I City of San Rafael selection of counsel to defend the Customer Claim and the progress of such litigation or settlement. PG&E shall not have any right to settle any such Customer Claim without the specific prior written approval from a designated legal representative of the Customer Indemnitees. 10. LIMITATION OF LIABILITY 10.1 IF PG&E IS HELD TO BE LIABLE TO CUSTOMER OR TO ANY PARTY CLAIMING BY OR TIIROUGII 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 SI TALL BE LIMITED TO THE LESSER OF: (A) THE PRICE FOR TI IE SERVICES UNDER TI IE 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. 10.2 1N 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. 10.3 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 TI IE BASIS OF THE BARGAIN AND A FAIR ALLOCATION OF RISK BETWEEN THE PARTIES. 10.4 Basis of the Bares. 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 TIIIS AGREEMENT WITHOUT SUCH SECTIONS. 11. TERM, SUSPENSION AND TERMINATION 11.1 Term. This Agreement shall commence on the Effective Date and shall terminate upon Inter 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 Lritial Term and 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 of its duties and obligation hereunder, or such material default is not cured within thirty (30) clays 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 Page I 1 of 17 El Pacific Gas and Electric Company Agreement No: SST-SNRPI: 0001 City of San Rafael trustee for its business or property, or be adjudicated bankrupt or insolvent, or bankruptcy proceedings are commenced by or against such Party. 110.3 Parties' Additional Termination Rights. 11.3.1 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. 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 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. 11.3.3 Customer's Termination Rights. Customer may terminate this Agreement without cause upon thirty (30) days xvt•itten notice mailed or personally delivered to the PG&E. Upon receipt of notice of termination, PG&E shall not incur additional obligations under any provision of this Agreement without the prior written consent of Customer. Customer shall compensate PG&E as provided in this Agreement for all services performed by PG&E up to the date of termination and for reasonable demobilization costs incurred by PG&E as a result of Customer's termination of the Agreement 11.4 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. 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 Customer), to wind down and terminate the Services in an efficient, workmanlike and cost-effective manner, and to cooperate with Customer in the 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 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&I: 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. Page 12 of 17 IrPacific Gas and a Electric Company Agreement No: SST-SNRFL-0001 City of San Rafael 11.6 Survival. The following Sections of this Agreement shall survive expiration, cancellation or other termination of this Agreement: I, 6, 71hrough 9, 10.5, 10.6 and II 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. 12. 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 bcthvicen 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 agree, then either Party may pursue available legal and equitable remedies. 13. 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 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. 14. 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. 15. GENERAL TrRms. 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. Page 13 of 17 Pacific Gas and Electric Company Agreement No: SST-SNRFL-0001 City or San Rafael IN WITNESS THEREOF, the parties have caused this Agreement to be executed as of the Effective Date first set forth above. PACI 4IC GAS AND ELECTRIC COMPANY CUSTOMER 245 Market Street MC NI OD 1400 Fifth Avenue San Frai1ciscc C -A 94105 San Ra. el, C O1 By: � � By: (Signature) (agn ure) Name: Rosannat Fong Name: Jim Sebutz Title: Manager Title: City Manager, City of San Rafael Date: -'It U 12 0 "1 Date: Approved as to form: L a ":!t� City Attorney, City of San 1kaftiel Page 14 of 17 R, Pacific Gas and Electric Company EXHIBIT A POTENTIAL ECMS Agree111ent No: SST-SNRFI: 0001 City of San Rafael Potential ECMs that may be included in a Work Order are set forth below: a. Implementation, modification, repair, maintenance and/or operation of on-site 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 supply 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, Ill. 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 beat 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), 1111. 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 and collection system, 11. Training that will result in reduced energy costs, nun. Installation, maintenance and operation of standby propane facility, 1111. Installation, maintenance and operation of gas distribution system and associated equipment, Page 15 of 17 Pacific Gas and Electric Company Agreement No: SST-SNRFL-0001 City of San Rafael oo. 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. pp. Design and/or scoping efforts in support of Authorizations) other than the Authorization in which such design and/or scoping efforts are ordered and under which they are compensated. Page 16 of 17 Pacific Gas and .9 8, Electric Company EXHMIT B SAFETY WAIVER Agreement No: SST-SNRFL-0001 City of San Rafael 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#: Executed this day of Facility name: CUSTOMER Sign: Name (print): _............._..._. _ Title Date: (if applicable) PACIFIC GAS AND ELECTRIC COMPANY Sign: Name (print): Title: Date: Page 17 of 17 CONTRACT ROUTING FORM INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and approval in the order shown below. TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER: Contracting Department: Public Works Project Manager: Talia Smith �J�-Q Extension: 3354 �f `^�'� Contractor Name: PG&E Contractor's Contact: Brent Patera , Contact's Email: BXPL@pge.com ❑ FPPC: Check if Contractor/Consultant must file Form 700 Step RESPONSIBLE DESCRIPTION COMPLETED REVIEWER DEPARTMENT DATE Check/Initial 1 Project Manager a. Email PINS Introductory Notice to Contractor Click here to ❑ enter a elate. b. Email contract (in Word) & attachments to City 6/27/2017 Atty c/o Laraine.Gittens@cityofsanrafael.org Q 2 City Attorney a. Review, revise, and comment on draft agreement -6/X12017 and return to Project Manager Clicl: here to ❑ZISc 1-0-6 b. Confirm insurance requirements, create Job on ent�r��yl,�ate. 11✓✓/ � PINS, send PINS insurance notice to contractor ® L*6- 3 Project Manager Forward at least two originals of final agreement to 6/30/2017 ❑x TS contractor for their signature 4 Project Manager When necessary, * contractor -signed agreement ❑ N/A agendized for Council approval *PSA > $20,000; or Purchase > $35,000; or Or ❑ Public Works Contract > $125,000 Date of Council approval Click here to enter a date. PRINT CONTINUE ROUTING PROCESS WITH HARD COPY 5 Project Manager Forward signed original agreements to City Attorney with printed copy of this routing form 6 City Attorney Review and approve hard copy of signed $r/ a' 1-7agreement 7 City Attorney Review and approve insurance in PINS and , and bonds (for Public Works Contracts) 8 City Manager/ Mayor Agreement executed by Council authorized official 9 City Clerk Attest signatures, retains original agreement and forwards copies to Project Manager Marin Independent lournal 4000 Civic Center Drive, Suite 301 San Rafael, CA 94903 415-382-7335 legals@marinij.com 2070419 CITY OF SAN RAFAEL CITY OF SAN RAFAEL CITY CLERK, ROOM 209 1400 FIFTH AVENUE, SAN RAFAEL, CA 94901 SAN RAFAEL, CA 94915-1560 PROOF OF PUBLICATION (2015.5 C.C.P.) STATE OF CALIFORNIA County of Marin I am a citizen of the United States and a resident of the County aforesaid: I am over the age of eighteen years, and not a party to or interested in the above matter. I am the principal clerk of the printer of the MARIN INDEPENDENT JOURNAL, a newspaper of general circulation, printed and published daily in the County of Marin, and which newspaper has been adjudged a newspaper of general circulation by the Superior Court of the County of Marin, State of California, under date of FEBRUARY 7, 1955, CASE NUMBER 25566; that the notice, of which the annexed is a printed copy (set in type not smaller than nonpareil), has been published in each regular and entire issue of said newspaper and not in any supplement thereof on the following dates, to -wit: 08/22/2017 I certify (or declare) under the penalty of perjury that the foregoing is true and correct. Dated this 22th day of August, 2017. Signature PROOF OF PUBLICATION Legal No. 0006014030 CITY OF SAN RAFAEL NOTICE OF PUBLIC HEARING The City Council of the City of San Rafael will hold a public hearing: PURPOSE: Public Hearing to consider approval of a Proposed Master Services Agreement with Pacific Gas and Electric, a California company, to execute various energy efficiency system upgrades to City facilities and street lights. The upgrades will include interior and exterior lighting upgrades and energy management control systems. The agreement would be approved pursuant to California Government Code 4217 pertaining to energy service contracts. The project would be entirely funded through a 1% interest loan the City received from the California Energy Commission for the purpose of energy efficiency upgrades. The loan and project amount is 31,178,813.00. DATE/TIME/PLACE: Tuesday, September 5, 2017 at 7:00 PM City Councfi Chambers, City Hall, 1400 Flfth Avenue, San Rafael. WHAT WILL HAPPEN: You may comment on the proposed Master Services Agreement with Pa- cific Gas and Electric (PG&E). The City Council will consider all public testimony and will then decide whether to adopt a resolution authoriz- ing the City Manager to execute the Master Services Agreement with PG&E. IF YOU CANNOT ATTEND: You may send a letter to Esther C. Beirne, City Clerk, City of San Ra- fael, P.O. Box 151560, San Rafael, CA 94915- 1560. You may also hand deliver a letter prior to the meeting. FOR MORE INFORMATION: You may contact Talia Smith, Senior Management Analyst at (415) 485.3354, Department of Public Works, 111 Morphew Street, San Rafael, CA San Rafael City Council Esther Beirne, City Clerk NO. 1039 August 22, 2017 SAN RAFAEL THE CITY WITH A MISSION STAFF REPORT APPROVAL ROUTING SLIP Staff Report Author: Talia Smith/Cory Bytof Date of Meeting: 09/05/2017 Department: Public Works Topic: CALIFORNIA ENERGY EFFICIENCY LOAN AND MASTER SERVICE AGREEMENT WITH PG&E Subject: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL APPROVING AND AUTHORIZING THE CITY MANAGER TO EXECUTE 1. AN AGREEMENTS FOR AN ENERGY EFFICIENCY LOAN FROM WITH THE CALIFORNIA ENERGY COMMISSION (CEC) FOR VARIOUS SYSTEM UPGRADES TO CITY FACILITIES AND STREET LIGHTS. 2. A MASTER SERVICES AGREEMENT WITH PG&E TO PERFORM VARIOUS ENERGY EFFICIENCY SYSTEM UPGRADES TO CITY FACILITIES AND STREET LIGHTS. Type: (check all that apply) ❑ Consent Calendar ® Public Hearing ® Discussion Item ❑ Resolution ❑ Ordinance ❑ Professional Services Agreement ❑ Informational Report *If PSA, City Attorney approval is required prior to start of staff report approval process Was agenda item publicly noticed? ® Yes ❑No Date noticed: 8/22/17 ❑Mailed ❑Site posted ®Marin IJ Due Date Responsibility Description Completed Initial / Comment Date DEPARTMENT REVIEW FRIDAY Director Director approves staff 8/23/2017 noon report is ready for ACM, KMcG 8/19 City Attorney & Finance review. CONTENT REVIEW MONDAY Assistant City Manager ACM, City Attorney & Click here morning Finance will review items, enter a d 8/21 make edits using track City Attorney changes and ask questions 8/24/2017 LG —changes to resos using comments. Items will needed as shown be returned to the author 8/24/2017 Finance by end of day Wednesday. Question on appro. Van DEPARTMENT REVISIONS FRIDAY Author Author revises the report Click here tc ❑ noon based on comments receives enter a date 8/25 and produces a final version (all track changes and comments removed) by Friday at noon. ACM, CITY ATTORNEY, FINANCE FINAL APPROVAL MONDAY Assistant City Manager ACM, City Attorney & 8/30/2017 morning Finance will check to see LG 8/28 their comments were Click here tc City Attorney adequately addressed and enter a date sign -off for the City Manager to conduct the 8/29/2017 Van Finance final review. TUES City Manager Final review and approval 8/30/2017 noon Jim 8/29 CITY OF SAN RAFAEL NOTICE OF PUBLIC HEARING The City Council of the City of San Rafael will hold a public hearing: PURPOSE: Public Hearing to consider approval of a proposed Master Services Agreement with Pacific Gas and Electric, a California company, to execute various energy efficiency system upgrades to City facilities and street lights. The upgrades will include interior and exterior lighting upgrades and energy management control systems. The agreement would be approved pursuant to California Government Code 4217 pertaining to energy service contracts. The project would be entirely funded through a 1% interest loan the City received from the California Energy Commission for the purpose of energy efficiency upgrades. The loan and project amount is $1,178,813.00. DATE/TIME/PLACE: Tuesday, September 5, 2017 at 7:00 PM City Council Chambers, City Hall, 1400 Fifth Avenue, San Rafael. WHAT WILL HAPPEN: You may comment on the proposed Master Services Agreement with Pacific Gas and Electric (PG&E). The City Council will consider all public testimony and will then decide whether to adopt a resolution authorizing the City Manager to execute the Master Services Agreement with PG&E. IF YOU CANNOT ATTEND: You may send a letter to Esther C. Beirne, City Clerk, City of San Rafael, P.O. Box 151560, San Rafael, CA 94915-1560. You may also hand deliver a letter prior to the meeting. FOR MORE INFORMATION: You may contact Talia Smith, Senior Management Analyst at (415) 485-3354, Department of Public Works, 111 Morphew Street, San Rafael, CA San Rafael City Council Esther Beirne, City Clerk For publication in the Marin Independent Journal on Tuesday, August 22"d, 2017