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PW Energy Efficiency Master Services AgreementPacific 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 9/4 moo . ("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 A& Pacific leas 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 Indeoendent 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 Proiect Management. 3.3.1 Authorized Persons. Customer and PG&E will each designate an employee who is sufficiently experienced to provide the information and support necessary to the other party for the performance of this Agreement (the "Authorized Person"). The Authorized Person for each party shall be the primary point of contact for inquiries and requests. Each such Authorized Person shall provide the other with such information and assistance as may be reasonably requested by the other from lime to time for the purpose of the performance of this Agreement. 3.3.2 Anorovals. 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. At Customer's written request, PG&E or its Subcontractor will conduct, at no cost to Customer, a preliminary audit consisting of an on-site building investigation and evaluation for a mutually agreeable Facility to determine if any significant energy conservation opportunities exist and whether a further IGA is needed. 4.1.2 Investment Grade Audit. After reviewing the Preliminary Audit, the 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 Design and Imolementation 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 Assumotions. 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 Chanties and Chance 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 Chantied 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 Safetv Waiver and Repair Services. If in the process of performing the Services, a condition is discovered at the Facility that, in the sole judgment of PG&E, (a) represents an extreme safety hazard to its worker's safety or other personnel, (b) may cause operational failure of the Equipment comprising the Facility, or (c) may cause damage to other Equipment being served by the Facility, PG&E will immediately notify Customer in writing of such condition and the Services necessary to remedy the condition. Customer will be asked to sign this written notification in the form of Exhibit B (Safety Waiver). Failure or refusal to sign the Safety Waiver will relieve PG&E and its Subcontractors of any responsibility to perform the Services. 4.2.4 Customer Delay. If the performance of particular Services by PG&E depends upon approvals or other decisions by Customer, or Customer furnishing particular data, drawings, documents or other information, and Customer does not timely perform or provide the same, the minimum time estimate for PG&E's completion of the particular Services which are dependent thereon shall be extended by the period of Customer's delay with respect thereto. 4.2.5 Change Costs. Customer shall reimburse PG&E for those reasonable costs incurred by PG&E or its Subcontractor(s) to implement a Change in accordance with the Change Order. These costs include, but are not necessarily limited to, increased costs for design and other professional services, expenses and taxes, if any. 4.2.6 With respect to any Change Order made in accordance with this Section 4, Customer acknowledges that PG&E and its Subcontractors shall not be obligated to commence and/or perform any Services pursuant to a Change Order unless and until PG&E has received the signed Change Order and Customer has issued PG&E a Work Order for such Change Order. 4.3 PG&E's Utility Obligations. Customer acknowledges that PG&E has an obligation to maintain, repair and service its own facilities, including those under the operation and control of the California Independent System Operator, in order to perform its duties as a public utility, which obligation takes precedence over any obligations undertaken in this Agreement. Accordingly, if PG&E determines at any time, in its sole discretion, that it requires any personnel or resources previously Page 5 of 17 ym Pacific Gas and 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+ACILITy SAFETY AND HAZARDOUS MATERIALS 5.1 Facilitv Safety. Customer shall be responsible for ensuring that the Facilities are safe for PG&E personnel and Subcontractors performing Services at Customer's facilities. Customer shall also cooperate with PG&E personnel working on-site and 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 lazardous 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 Iazardous 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 Payments. 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 r8Pacific 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 with 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 f6Pacific 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 Partv Warrantv Exclusions and Customer Oution. "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 Energv 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-IER 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 Scone 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 Ys 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 Reauirements. 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 Omm Pacific Gas and Agreement No: SST-SNRFL-0001 1110 Electric Company 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 Pacific Gas and 6 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 TI IF 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 Bargain. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE FOREGOING SECTIONS ON WARRANTIES, WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY IN THE AGREEMENT FAIRLY ALLOCATE THE RISKS BETWEEN THE PARTIES AND ARE ESSENTIAL, ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES SUCH THAT THE PARTIES WOULD NOT HAVE ENTERED INTO 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 Initial 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 ItPacific Gas and s 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 Chance 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 Chanec. 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 xvritten 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 Pacific Gas and ' s 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 MPacific 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 Raf el, C O1 f By: By: (Signature) (� ( tgn tire) Name: Rosa mift Fong Name: Jim Schutz Title: Manager Title: City Manager, City of San Rafael Date: -'It U I L t Date: Approved as to form: a—,6, �',, %rE City Attorney, City of San Ikafiel 'V- Page 14 of 17 .9Pacific Gas and Agree111ent No: SST -SNRT• 1: 0001 8 Electric Company City of San Rafael EXHIBIT A POTENTIAL ECMS 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/alteratioll/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 Agreement No: SST-SNRFL-0001 & Electric Company 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 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 WA Extension: 3354 L 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 ❑x 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 -sinned 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