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HomeMy WebLinkAboutCC Resolution 13460 (MOU Renewable Energy; Strategic Energy Innovations)CITY COUNCIL OF THE CITY OF SAN RAFAEL RESOLUTION NO. 13460 A RESOLUTION APPROVING A MEMORANDUM OF UNDERSTANDING WITH THE SEED FUND ADMINISTERED BY STRATEGIC ENERGY INNOVATIONS (SEI), A CALIFORNIA 501C3, FOR COOPERATIVE PURCHASING OF RENEWABLE ENERGY WHEREAS, the City of San Rafael adopted a Climate Change Action Plan in 2009, which includes Program BU5 directing the City to develop a program to achieve energy savings in existing buildings, with a goal of decreasing energy use by 20% as of the year 2020. WHEREAS, the City of San Rafael added a Sustainability Element to the San Rafael General Plan 2020 in 2011, which includes Policy SU -4 to increase the supply of renewable energy sources, and SU -5 to reduce dependency on non-renewable energy sources; and WHEREAS, the Sustainable Energy and Economic Development (SEED) Fund is an innovative program to empower public agencies to evaluate and participate in a regional purchase of municipal solar photovoltaic (PV) projects administered by Strategic Energy Innovations (SEI) in conjunction with Optony, Inc., and WHEREAS, the SEED Fund is funded through a grant by the California Public Utilities Commission's California Solar Initiative, and is intended to reduce costs of procurement through multi -jurisdictional purchasing arrangements among public agencies throughout the North Bay; and WHEREAS, the SEED Fund Team has provided an initial site pre-screening for twenty- four City facilities, and has ranked nine of those facilities as having a high potential for solar PV installation based on technical and financial considerations, while ranking nine others as having moderate potential and six as having low potential; and WHEREAS, The SEED Fund Team will deliver, through the Memorandum of Understanding (MOU), further professional services, including detailed site feasibility studies, template bid documents, professional evaluation of bids, and other consulting expertise to inform the City's decision-making process for solar PV projects and various financing mechanisms; and WHEREAS, the SEED Fund program is set up to reduce the cost of procurement by 10- 12% through economies of scale with over 17 additional public agencies in the North Bay; and WHEREAS, the SEED Fund is based on a successful model recently done in Santa Clara County whereby over 14.4 megawatts of solar PV was installed amongst nine jurisdictions; and WHEREAS, the City of San Rafael may opt -out of the SEED Fund without penalty prior to the bid process, or decide not to proceed with a solar project should none of the bids match City requirements; and WHEREAS, the City currently works with SEI through the Climate Corps Bay Area program, placing and administering two interns for City sustainability programs; and 1 t5 m WHEREAS, the City of San Rafael wishes to increase its use of renewable energy and reduce its energy related greenhouse gas emissions; NOW, THEREFORE, BE IT RESOLVED that the CITY MANAGER is authorized to execute, on behalf of the City of San Rafael, a Memorandum of Understanding with the SEED Fund, administered by Strategic Energy Innovations (SEI), a California 501c3, for Cooperative Purchasing of Renewable Energy, a copy of which is hereby attached and by this reference made a part hereof. I, ESTHER BEIRNE, City 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 City Council held on Monday, November 19, 2012, by the following vote, to wit: AYES: COUNCILMEMBERS: Connolly, Heller, Levine, McCullough & Mayor Phillips NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None ABSTAIN: COUNCILMEMBERS: None Esther Beirne, Cityi.berkl" 2 MEMORANDUM OF UNDERSTANDING FOR COOPERATIVE PURCHASING OF RENEWABLE ENERGY This Memorandum of Understanding ("MOU" or "Agreement") is effective 3 (date) 2012 ("Effective Date"), by and between the City of San Rafael, a municipal corporation (referred to herein as City), and the SEED Fund administered by Strategic Energy Innovations (SEI) — a California 5016, (referred herein as the "SEED Fund"), referred to collectively as "Parties." Recitals WHEREAS, large volume purchases of renew -able energy will more likely result in lower prXii-Ig from a multi -jurisdiction purchasing arrangement where project sites, are aggregated into groups on the basis of various technical, risk and financing related factors than would otherwise be available if indivikkial jurisdictions independently purchased renewable. energy; and WHEREAS, the Parties acknowledge that the transaction costs associated with purchasing r..-newable energy are significantly- reduced when the Parties agree to the same terms and conditions incoA-porated Nvithin standardized template documents; and WHEREAS, the City desires to evaluate and purchase renewable energy for its operations; arid. WHEREAS, the City wishes to take advantage of economies of scale and potential discounts when such purchases are made at larger volurries; and WHEREAS, the SEED FundTm desires to provide technical evaluation services and facilitate <wegated "ItV procurement support for public agencies; and WHEREAS, the SEED 1-{undim provides initial funding for necessary professional services th< t can facilitate development of an Aggregated Solar Procurement Solicitation, including, but not lin ited to consulting services, feasibility studies and procurement management services J with no oCi obligation to the ty ;and WHEREAS, the SEED Fund"'m has no> direct financial interest in any particular renewable e-acrg.�, products; and WHEREAS, the SEED t4undrm will paN, for Professional Services provided by Optony Inc -a C.tliforiiia Corporation, and Strategic~ Energy Tnnovations,a California non-profit corporation ("SEI") their s sul -)-consultant,,-,; and WHEREAS, the City, has identified potentially viable Solar Sites and desires the SEED I'L1110i ' to conduct feasibilmr studies ()f thesesttes t -()r Potential inclusion lnati,\ggre�atcd Solar PrOCUIRnTcW ',olicit,2601i; .tnd XXHEREAS, the funds c-,pendcd by the SI -El) Fi-indro' inay be reirnbLirsed by the 'Ain, ci,,ids r(,, if rhev cuter into <igrecrtients ",ith the Citi to provide renc\vable ener,,v; and WHEREAS,ar the cwnipletlon of the Solicitation process, the ("Iry till evahiatc:dl offers at J (:,.,,itracrs in good -�Laith f6r solar p, rsx�er purchase, financing:, real estate, and.or other required ld selected vendors In the -f M; f()Y11,1111 prepared by the SEED FLind Fg NOW THEREFORE, in consideration of their mutual promises and agreements, and subject- to the terms, conditions and provisions hereinafter set forth, the Parties agree as follows: SECTION 1. DEFINED TERMS A "SEED Fund" is the Sustainable Energy and Economic Development Fund, administered by Strategic Energy Innovations — a California 5016. B "Lead agency" is the designated city or public agency responsible for issuing the Solicitation (as defined herein) on behalf of itself and the Participating Cities / Agencies (as defined herein) for the purposes of purchasing renewable energy. C "Participating Cities / Agencies" are all other public entities, except for the Lead ikgency (as defined herein), who participate in the Solicitation to purchase renewable energy. D "Solicitation" or "Aggregated Solar Procurement Solicitation" is defined as a request fn )r qualifications and/or a request for proposals and related actions to purchase renewal.A.- energy c.n behalf of the Lead Agencq and Participating Cities /.Agencies. E. "Vendor(s)" is defined as a company or companies who respond to the Solicitation to provide renewable energy proposals, which will categorically exclude SEED FundTM subcontractors. F "Feasibility Study" is defined as a technical, preliminary structural, and economic evaluation of the solar potential ata specific facility that is owned or managed by a City / Agency. SECTION 2. ROLE AND RESPONSIBILITIES OF SEED FUND'I'm 1 The SEED FundTM shall coordinate with City to provide Professional Services and tee°aplate documents and other services necessary to assist the Citi in participating in the Solicitation to purchase renewable power. B SEED FundrM shall provide training and resources to City, as needed to build underst,.ndin ; and support for participation in the procurement process. C SEED FundTM shall evaluate sites for feasibility of renewable enemy systems includin;_; .ethnical structural, and economic viability- under realistic financing scenarios. Evaluation of sti-uctural feasibility shall be in the farm of a preliminary feasibility- review by an engineering pro essi()nal. D SEED FundTM shall provide professional expertise to perform reference checks, evaluarD sri of Vendor(;, technology reg iews and financing optir)11 .inalyses. l: EED Fund"m J).ill provide assn ssrnents and recorrancrndariOnas to CIry rind affiliated i,(\: stat! and decision makers. SECTION 3. ROLE AND RESPONSIBILITIES OF CITY 'I'lie (. iry shall acri;°elr participate in the SEED 1,undr11 process so as to enable a tin clk,. strllcltation for aggre<d procure.nlent In order to reahze the petit passible Tern -is. B The City mai. -,cithdnr,c fro)rn this :\IOU �Nith{>ut consequence at .tny U111C. up until dic ;clin tr, of the feaslblht-� studies to r City's Pry )ject Director. Ar that tithe, conditions irl Sc ctb_>f1s .T a ict SMt .ara5 apply. To withdraw from this NIOU, the City shall prepare written notice pursuant to rection 8 and Section 10. C Throughout the term of this agreement, the City- is responsible for satisfying its individual legal, procedural and other requirements necessary for participation in this memorandum. D The City will take: all reasonable steps to support development of an .aggregated Solar Procurement Solicitation including, but not limited to, providing information necessary for the SEED FundTM to perform due diligence and feasibility studies on the City's behalf, including site surveys, site access and utility information. E If the City participates in the Solicitation, the City agrees to the terms and conditions tilted below and the following conditions shall apply: 1. The Lead agency will issue the. Solicitation with support from SEED FundTM staff a;.id subcontractors. ?. The City shall (i) acknowledgee and ascribe to the results of the Solicitation issued by the Lead .agency, (ii) utilize SEED FundTM templates of transaction documents, which may it:iclude, without limitation, site evaluation forms, model project specifications, a form of purchase agreement and a form of site lease (the "Template Documents"), and (iii) coordinate with Participating Cities / .Agencies, as necessary. I The City, with respect to the content of the Solicitation and the terms and conditions contained within Template Documents, shall have a reasonable opportunity to review all Template Documents before they are finalized, and shall communicate comments ,arid questions to NEED FundiM within the allotted timeframe provided by SEED Fundr�i 4. The City designates SEED FundTM and the Lead Agency as the primary- points of ,ntact for Vendors and necessary third parties throughout the Solicitation process. 5. Provided that the City determines, to its satisfaction, that the Vendors are responsiEle, responsive, affordable, and comply with the terms, conditions and legal and procedural requirements :.acceptable to the City, upon conclusion of the Solicitation process, it iss, anticipated that Ci"will enter into binding agreements, substantially in the firm he Template Documents, with the. selected Vendors; however the Parties agree that CM- shall not be. required to do so. SECTION 4. SEED FUND"'" GOALS AND REINIBLIRSEMENT 1 PR(:)GRX.M GO.U, The coal of the 'rI ED F,i,,Jr,'a is to p.r(:ride 11; \ altie. technical assistance Nv th rio up- fn � t :,t f(r tlic Cit -to evaluate ,and purc:lzase renes~°able energy and, «r to, install rtiiewable energi- stems t= � !-.�.[p _edc .Ice utility coasts, whilr le�,eral-ing cvsting federal and state rebate opporturiities, ;and co ntributinp, thof environmental rroals. The SEED I'tinel's ptirp,>se is ro hand regianral that create ne« ec .nr,a7u, ;cti,;it:; wl-,ale lmprc%Z ln;; the rem:<rTl al e:nviri,nment. The fc,cus is on renewable energy and ener,n etti.'ic!10 t kr municipalities, schools and pLiblic agencies to help reduce costs while demonstrating leadershNp in. clean energy locally. The SEED Fund also provides resources and training for stakeholders to build understanding, internal capabilities and support interaction across the community. B FUNDED PROFESSIONAL, SERVICES The SEED FundTM will pay for Professional Services necessary to independently evaluate potential solar sites, provide educational resources, and issue a Solicitation for proposals from Vendors Within an Aggregated Solar Procurement project. Funds used for Professional Services will be used exclusively for the implementation of the Aggregated Solar Procurement Solicitation between Participating; Ctucs / Agencies, and SEED FundTM. Use of SEED FundTM monies is restricted to the foregoing and may not be used to pay for City staff time, outside contractors or independent studies, except for a stipend available to the SEED FundTM bead Agency. Except as specifically otherwise provided in Section 2(C) above, services that are excluded from SEED FundTM reimbursement include environmental reviews, engineering services and project commissioning. C REIMBURSEM[:,NT OF SEED FundTM If, during the Term of this Agreement, the City~ enters into a contract to build a renewable energy system on facilities identified in the feasibility study or enters into a power purchase agreement or other similar agreement to purchase renewable energy from any energy service provider, the City agrees that the SEED FundTM Professional Services shall be reimbursed at a rate of 1.5 to 2 °io of the total installed value of the renewable energy project, in present dollars (based on the project price proposed by the winning Vendor). SEED Fund rill provide a final reimbursement percentage to the City prior to issuing the Solicitation. This percentage uTill be based on total Solicitation size and other factors. If, for any reason, and in the City's sole discretion, no viable project identified through SEED 1:'undI'M is contracted by the end of the term of this agreement, or if the City withdraws from the progrranx prior to completion of feasibility studies on City facilities, the City is not required to pay for any, SEE`) Eundl''I Professional Services. City agrees that this reimbursement provision shall be the responsibility of the City but that it r ;ay be reimbursed through the purchase contract that is executed between City and Vendor(sl SECTION 5. TERM OF AGREEMENT The term of this ,ig reemtnt shall commence on the MC)I. Effective Date and shall expire on thc later of the second annlversaa. - (,frhe Effective Date; or 365 days after the co mplet(,, of the A4grog;.'. dS)Iar Pro c:_urc:ment Solicitation1Xrc�ce.� �;�� determined by S;1:," 7 "Und'"'I. SECTION G. GOVERNING L.ASX' AND VENUE The law ;;crverriilig this Agreement shall be that c rf the State. E If Calif: �rni:a. In the even . t that 4,. is la,�ll b larcnlght by any party to-) I this Agreement, the Parties agree that venue shall be exclusively vestc::I'll the State court in the c{:aurin- \vherc the Citj- is located, or if federal junsdictic ii is :appropriate, ex:t ai•,. ("IV III the appropriate U: tilted St,,tes District Court. 4 ,:"k4.„ SECTION 7. WARRANTY DISCLAIMER; LIABILITY; WAIVER A No warranty, express or implied, is provided by the SEED Fund TM, ()ptony, Inc. or ",:Ll as to results or success of the Solicitation, this Agreement, or any agreements ultimately entered into by the City pursuant to the Aggregated Solar Procurement Solicitation. City acknowledge,, that Optony, Inc. and SEI have not made, and are not making, any assurances, guaranties or promises with respect to the subject matter of this.Agreement and that each party, is ultimately responsible for conducting its own due diligence with respect to feasibility, pricing, technology, third parties and all other matters in any way related to the subject matter of this Agreement. B In no event shall the NEED Fund TM, Optonv, Inc., and SEI nor their officers, agents, employers, or representatives be liable for any direct, indirect, incidental, special, exemplary, or con:�equential damages (including, but not limited to, procurement of substitute goods or services, lo.,,; of use, data, or profits, or business interruption) however caused and on any theory- of liabilitc, whether in contract, strict liability, or tort (including negligence or otherwise) arising in any way, directly- or indirectly, from this Agreement, participation in the Solicitation, or any agreement(s) ber een a Lead agency or Participating :agency and any third party, even if advised of the possibilinof such damage. C Unless otherwise provided herein, each Party is responsible for negotiation, execution., administration and enforcement of any contract with a Vendor or third party related t4) she subject matter of this Agreement and the agreements ultimately entered into by each party shall not be cross -defaulted or cross -collateralized in any respect with the agreements entered into by any other party to this agreement. D No waiver by any party to this agreement of any breach or violation of any term or condition of this :agreement shall be deemed to be a waiver of any other term or condition containers herein or a waiver of any subsequent breach or Violation of the same or any other term or cond' ion. SECTION 8. NOTICES Notices shall be deemed effective on the date delivered if by personal service or overnight delivery service, or, if mailed, three (3) days after deposit in the L.S. Postal Service mail. All notices ,.wi i other communications required or permitted to be given under this Agreement shall be in writing a, �(, hall be personally served, delivered by overnight service, or by mail, first class, certified or registered iwstage prepaid and return receipt requested, addressed to the respective Parries as follows: Citv of San Rafael address: i'{ > Box 151560 Atldre::s: ;°pan Rafael, CA 94913-1-560 1ttn: Cory Bytof With Copies to: Strategic F_nergInnovatiUnti S99 Northgate Dr., Stc. 410 San Rafae 1, (_� 919(). Attn.: I5i f �chetier, Program Director SEED Fund, Administered by SF.'. Address: 899 Northgate Dr., Ste. 4'() Address: San Rafael, CA 9490 C )ptony 111c. 7355 Kifer Rd., ate. 01 Santa Ga.ra, CA 95051 Attn: Ben Foster, Senior \'ic:e I'rrs:de:tt SECTION 9. MISCELLANEOUS PROVISIONS A if any term, condition or covenant of this Agreement is held by a court of competent urisdiction to be invalid, void or unenforceable, the remaining provisions of this Agreement shall be valid and binding on the Parties, B This Agreement may be executed in counterparts and will be binding; as executed. C .\ll changes or extensions to this Agreement shall be in writing; in the form of an amendnuerut approved by all Parties. D This Agreement is entered into only for the benefit of the Parties executing; this Agrreenucnt and not for the benefit of any other individual, entity, or person. E Conflict Statement and Waiver. No) officer or employee of the City shall have any finaancial interest in this Agreement that would violate. California. Government Code Sections 1()9,0 et seq. F The parties agree that time is of the essence; and failure of the City to provide the requuircd information in the requested format and within the deadlines established by SEED Fund "u may result iri termination of that party's participation in the cooperative purchase. G This .Agreement shall not be interpreted to create an association, joint venture, or partricrship between the Parties nor to impose any partnership obligation or liability upon either Party. H This Agreement shall be equally and fairly interpreted for the benefit of and against all parties to this :agreement and shall further be co nstruicd and interpreted without reference to th,. dentin of the party or parties preparing; this document, it being expressly understood and agreed that the parties hereto participated in the negotiation and preparation of this Agreement or have had equal opportunity to do so. Accordingly, the parties hereby waive the legal presLimp tion tha r i lie language of the contract should be interpreted most strongly against the party who cau.,sf d the uncertainty to exist. SECTION 10. TERMINATION 1 The SEED Fundu-"t may, upon thirty t30', daT=s' «vritten notice, terminate this Agreemuni vitho�at Penalty or liability. B City mai- terminate this Agreement with written notice at .ung` time up to three 1.3; weeks prior to, the issuance of the Solicitation pursuant to the project schedule developed and provided, by SEED Hund TM. However, the terms of reimbursement in Section 1C will still appy-. <.' In the ex ent of terinination, an=,- unexpended grant monies shall be ret;uir- ed in the SEI l > FundINI and shall not be d:sbursed to AtV, SECTION 11. INDEItiNIFICATION In lieu of and notwithstanding the pro rata risk allocation, -,N-hich might othenvise be imposed the Parries Pursuant to G()vemnient Code Secti(�n 895.6, the Parties ,igree th;it = 11 losses or :i J) I'ties incurred by a part, that .are in any related to this A{greeri.eu?t shall rior be shared pro § .catu the Parties .ugrce. that, puarsuant to (:aoverxumcnt Code Section 895A, each of the Parties herctt lx u: fidk- indetin-i i• and hold eaclu of the (.),her Partics, their o,fticc;rs, b, urd members, employees, anti :. ,-T harmless frown any CLIiM, expense Or cost, darriag;e (}r liability inuposect for injury ,as defined ir;l 6 R. ^Clf' �jana"i' Government Code Section 810.8) occurring by reason of the negligent acts or omissions or Ivi.11ful misconduct of the indemnifying party, its officers, employees, or agents, under or in connection »ith or arising out of any work, authority, or jurisdiction delegated to such party under this Agreement. No party, nor any officer, board member, or agent thereof shall be responsible for any damage or liability occurring by reason of the negligent acts or omissions or willful misconduct of another party, hereto, its officers, board members, employees, or agents, under or in connection with or arising out of any work authority or jurisdiction delegated to such other party under this Agreement. SECTION 12. NON-DISCRIMINATION Parties shall comply with all applicable Federal, State, and local laws, regulations and policies concerning nondiscrimination and equal opportunity in contracting. Such laws include but are not limited to the following: Title V 1 of the Civil Rights Act of 1964 as amended; Americans with Disabilities Act of 1990; The Rehabilitation Act of 1973 (Sectio ns 503 and 504); California Fair Employment and Flou sing Act (Government Code sections 12900 et seq.); and California Labor Code sections 1101 and 1102. Parties shall not discriminate against any subcontractor, employee, or applicant for employment becarnse of age, race, color, national origin, ancestry, religion, sex/gender, sexual orientation, mental disability, physical disability, medical condition, political beliefs, organizational affiliations, or marital status in the recruitment, selection for training including apprenticeship, hiring, employment, utilization, promotion, layoff, rates of pay or other forms of compensation. Not shall Parties discriminate in provision of services provided under this Agreement because of age, race, color, national origin, ancestry, religion, sex/gender, sexual orientation, mental disability, physical disability, medical condition, politic,, -,I beliefs, organizational affiliations, or marital status. IN WITNESS WHEREOF, the parties have executed this Agreement: Dated: t .,j Dated: , The SEED Fund, administered by SEI by r` t (. V D NNDRIDGGE, Executii e Director P, ")_,2 The City of San Rafael bV F NANCY I'VLICKLE, City T�Ianager Attest: by .6,; q" , C _f0-r':F;STFIER 13EIRNE, City- Clerk Apprc z_c:d ;as to Fimn RO BERT F. F;PsTI:IN, ("in, _ktr<.rne%