HomeMy WebLinkAboutCC AG PKT 2011-03-28 #KAGENDA STAFF REPORT
DATE: March 28, 2011
TO: Honorable Mayor and City Council
THRU: Jill R. Ingram, Acting City Manager
FROM: Sean Crumby P.E., Director of Public Works
SUBJECT: AWARD CONTRACT FOR ENERGY EFFICIENCY
UPGRADES FOR CITY FACILITIES PROJECT NO.
BG1103
SUMMARY OF REQUEST:
It is requested that the City Council:
Adopt Resolution No. 6121 awarding a contract for Energy Efficiency
Upgrades for City Facilities Project No. BG1103 to Express Energy
Services, Inc. in the amount of $78,752, and
2. Authorize the City Manager to execute rebate incentive forms including
the Management Affiliates Program Agreement and SCE Third Party
Terms and Conditions.
BACKGROUND:
In August 2009, the California Energy Commission (CEC) announced grant
opportunities for local agencies. The City immediately took advantage of this
grant opportunity. On December 12, 2009 the City Council approved a
Professional Services Agreement with Energy Innovations Group, LLC
(Consultant) to assist with capitalizing on this grant opportunity.
On June 30, 2010 the CEC received and approved 208 individual grant awards.
The City of Seal Beach submitted and was awarded $131,827. The fee for the
Consultant will be paid from by the grant funds received, and therefore this
project will have no impact to the City's general fund.
At the December 13, 2010 City Council Meeting, Council approved a bid package
of plans and specifications for the Energy Efficiency Upgrades for City Facilities
Project No. BG1103 (Project) and authorized staff to solicit for bids.
Agenda Item K
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This Project consisted of upgrades to interior and exterior lighting, replacement of
HVAC units and air handlers, installing variable frequency drivers (VFD) on
chilled water pumps, and install window film at various City facilities:
• Police Station — 911 Seal Beach Blvd., Seal Beach, CA
• North Community Center — 3333 Saint Cloud Drive, Seal Beach, CA
• Marina Community Center —151 Marina Drive, Seal Beach, CA
• Mary Wilson Library — 707 Electric Avenue, Seal Beach, CA
• City Hall — 211 8 th Street, Seal Beach, CA
• Public Works Yard — 1776 Adolfo Lopez Drive, Seal Beach, CA
With the recent increase of energy efficiency projects, the bidding climate has
been volatile. The anticipated cost of this project was difficult to predict, and
therefore the bid documents were set such that the HVAC work was separated
from the lighting improvements. The City reserved the right to award'the contract
for the combined bid amount of HVAC and lighting, or either group of work
dependent upon the value of the bids. This was done to ensure that the City
remains under the grant amount and does not have to expend any general funds.
Bid documents were prepared in accordance with the Public Contract Code and
the recommended action will be to award construction to the lowest responsive
bid.
On March 3, 2011 the City Clerk's office received five bids with the following
results:
RANK
j CONTRACTOR
HVAC
1AMO BID
LIGHTING
BID
AMOUNT
TOTAL BID
AMOUNT
1
Express Energy Services, Inc.
1 $97,700
I $78,752 1
$176,452
2
Atom
j $68,750
$113,609
$182,359
3
I Ms Navarro Engineering
$59,100
$196,500
$255,600
4
' Pardess Air, Inc.
( $92,000
$180,000
$272,000
5
JMS Air Conditioning & Heating
$141,750 i
$132,280
$274,030
Anticipated expenditures for this project are as follows:
Available Grant Funds $131,827
Grant Administration $30,000
Construction Management $10,000
Funds Available for Construction $91,827
Funds do not provide for award of both activities within the bid documents. It is
staff's recommendation to award construction to the lowest responsive bid for the
activity that provides the largest energy savings in the future. An analysis of the
projected energy savings is as follows:
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ENERGY SAVINGS COMPARISON
Lighting
HVAC
106,436 kwh /year
64,142 kwh /year
The lighting improvements yield a large energy savings, and therefore staff
recommends awarding the contract to Express Energy Services, Inc. (Contractor)
in the amount of $78,752 for the lighting scope of work only. The lighting scope of
work consists of upgrades to interior & exterior lighting, and installing window film
at various City facilities.
Additionally, staff is pursuing rebates through Southern California Edison (SCE)
for this project. The Consultant has identified potential rebates for this project of
up to $20,000. Staff will not know the results from these rebates until the
completion of construction and does not recommend increasing the construction
award amount at this time. To initiate the rebate the City needs to execute the
attached agreement and authorization forms.
If the rebates are approved, the funds remaining from this grant along with any
rebate funds received can be used for HVAC improvements in the future.
ENVIRONMENTAL IMPACT:
This project complies with all requirements of the California Environmental
Quality Act (CEQA) and is categorically exempt under section 15301.
FINANCIAL IMPACT:
This Project is funded through the Energy Efficiency and Conservation Block
Grant (Grant). The City was awarded grant funds of $131,827 to cover the cost
of grant administration, construction, and inspection and there is no City match
requirement.
A budget amendment in the amount of $131,800 is included on the March 28,
2011 agenda.
ANALYSIS:
Express Energy Services, Inc. has appropriate references, qualifications, work
experience and submitted an acceptable bid package in the amount of $78,752.
It is appropriate that construction be awarded to this bidder. The Contractor is
near completion of construction on a similar project for the City of Beverly Hills.
Page 4
RECOMMENDATION:
It is recommended that the City Council:
Adopt Resolution No. 6121 awarding a contract for Energy Efficiency
Upgrades for City Facilities Project No. BG1103 to Express Energy
Services, Inc. in the amount of $78,752, and
2. Authorize the City Manager to execute rebate incentive forms including
the Management Affiliates Program Agreement and SCE Third Party
Terms and Condition.
NOTED AND APPROVED:
U tin .Ingram, g City Manager
Prepared by: Cesar Rangel, Assistant Engineer
Attachments:
A. Resolution No. 6121
B. Agreement
C. Management Affiliates Program Agreement
D. SCE Third Party Terms and Conditions
Attachment "A"
Resolution No. 6121
"A RESOLUTION OF THE SEAL BEACH CITY COUNCIL
AWARDING THE CONTRACT FOR ENERGY
EFFICIENCY UPGRADES FOR CITY FACILITIES
PROJECT NO. BG 1103"
RESOLUTION NUMBER 6121
A RESOLUTION OF THE SEAL BEACH CITY COUNCIL
AWARDING THE CONTRACT FOR ENERGY EFFICIENCY
UPGRADES FOR CITY FACILITIES PROJECT NO. BG1103
WHEREAS, Energy Efficiency Upgrades for City Facilities Project lighting scope
of work includes upgrades to interior & exterior lighting, and install window film at
various City facilities.
WHEREAS, staff recommends selecting Express Energy Services, Inc. as the
lowest responsible and responsive bidder.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SEAL BEACH
DOES HEREBY RESOLVE:
Section 1. The City Council hereby awards a contract in the amount of $ 78,752
to Express Energy Services, Inc. for the Energy Efficiency Upgrades for City
Facilities Project No. BG1103.
Section 2. The Council hereby directs the City Manger to execute the contract
for the Energy Efficiency Upgrades for City Facilities Project No. BG1103,
Management Affiliates Program Agreement, and SCE Third Party Terms
Conditions.
PASSED, APPROVED AND ADOPTED by the City Council of the City of Seal
Beach, at a regular meeting held on the 28th day of March . 2011 by the
following vote:
AYES: Council Members
NOES: Council Members
ABSENT: Council Members
ABSTAIN: Council Members
Mayor
ATTEST:
City Clerk
STATE OF CALIFORNIA }
COUNTY OF ORANGE } SS
CITY OF SEAL BEACH }
I, Linda Devine, City Clerk of the City of Seal Beach, do hereby certify that the
foregoing resolution is the original copy of Resolution Number 6121 on file in
the office of the City Clerk, passed, approved, and adopted by the City Council at
a regular meeting held on the 28th day of March , 2011.
City Clerk
Attachment "B"
Agreement
Express Energy Services, Inc.
PUBLIC WORKS AGREEMENT
ENERGY EFFICIENCY UPGRADES FOR CITY
FACILITIES
between
City of Seal Beach
211 - 8th Street
Seal Beach, CA 90740
Express Energy Services, Inc
12570 Industry Street
Garden Grove, CA 92841
714.650.8870
THIS AGREEMENT is made as of March 28, 2011, by and between the City of Seal
Beach, a California charter city ( "City "), and Express Energy Services, Inc. a
( "Contractor ").
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RECITALS
A. WHEREAS, the City Council has approved the plans and specifications for
the Energy Efficiency Upgrades For City Facilities ( "Project ") with respect to design
criteria; and
B. WHEREAS, Contractor has submitted a bid to City for the Project dated
March 3, 2011 in the amount of $78,752.00 ( "Accepted Proposal" hereinafter). The
Accepted Proposal is attached hereto as Exhibit G and contains, among other things,
provisions defining the Project scope.
NOW, THEREFORE, in consideration of performance by the parties of the
mutual promises, covenants, and conditions herein contained, the parties hereto agree
as follows:
AGREEMENT
1. Contractor's Services
1.1 Scope and Level of Services For and in consideration of the
mutual promises set forth herein, and subject to the terms and conditions set forth in
this Agreement, Contractor shall perform and complete in good and workmanlike
manner all work ( "Work ") required by this Agreement and the documents listed in
Subsection 1.2 for the Project.
1.2 Contract Documents The "Contract Documents" that comprise the
agreement between the City and the Contractor are the: Notice Inviting Bids,
Instructions to Bidders, Accepted Proposal, Non - Collusion Affidavit, Bid Schedule(s),
List of Subcontractors, Contractor's Industrial Safety Record, Contractor's Qualification
Statement, Bid Security Forms for Check or Bond, Specifications, General and Special
Provisions and documents referenced therein, all addenda as prepared prior to the date
of bid opening setting forth any modifications or interpretations of any of said
documents, this Agreement, Exhibits attached to this Agreement, including but not
limited to the Performance Bond (Exhibit A), Payment Bond (Exhibit B), Workers'
Compensation Insurance Certificate (Exhibit C), Insurance Endorsements (Exhibit D),
Acknowledgment of Penal and Civil Penalties Concerning Contractor Licensing Laws
(Exhibit E), Labor Law Requirements (Exhibit F), Accepted Proposal (Exhibit G) and any
and all supplemental agreements executed amending or extending the Work
contemplated and that may be required to complete the Work in a substantial and
acceptable manner. These Contract Documents are hereby incorporated into this
Agreement.
1.3 The Work shall be performed in accordance with the Plans,
Specifications and other Contract Documents. Contractor shall furnish at its own
expense all labor, materials, equipment and services necessary therefor, except such
labor, materials, equipment and services as are specified in the Contract Documents to
be furnished by City.
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1.4 In the event of any material discrepancy between the express
provisions of this Agreement and the provisions of the other Contract Documents, the
provisions of this Agreement shall prevail.
2. Effective Date This Agreement is effective as of March 28, 2011 (the
"Effective Date "), and shall remain in full force and effect until Contractor has rendered
the services required by this Agreement.
3. Payment For performing and completing the Work in accordance with the
Contract Documents, City shall pay Contractor, in full compensation therefor, the
amount of $78,752.00, subject to any additions and deletions pursuant to the terms of
the Contract Documents. Said sum shall constitute payment in full for all work
performed hereunder, including, without limitation, all labor, materials, equipment, tools
and services used or incorporated in the Work, supervision, administration, overhead,
expenses and any and all other things required, furnished or incurred for completion of
the Work as specified in the Contract Documents. City shall make payments to
Contractor on account of the contract sum at the time, in the manner, and upon the
conditions specified in the Contract Documents.
4. Contractor's Personnel
4.1 All Work shall be performed by Contractor or under Contractor's
direct supervision, and all personnel shall possess the qualifications, permits, and
licenses required by state and local law and by the Notice Inviting Bids /Instructions to
Bidders to perform such Services, including, without limitation, a City of Seal Beach
business license as required by the Seal Beach Municipal Code.
4.2 Contractor shall be responsible for payment of all employees'
wages and benefits, and shall comply with all requirements pertaining to employer's
liability, workers' compensation, unemployment insurance, and Social Security.
Contractor shall fully comply with the workers' compensation law regarding Contractor
and Contractor's employees.
4.3 Contractor shall indemnify and hold harmless City and its elected
officials, officers, employees, servants, designated volunteers, and agents serving as
independent contractors in the role of city officials, from any and all liabilities, damages,
claims, costs and expenses of any nature to the extent arising from Contractor's alleged
violations of personnel practices.
4.4 Contractor is, and shall at all times remain as to City, a wholly
independent contractor. Contractor shall have no power to incur any debt, obligation, or
liability on behalf of City or otherwise act as an agent of City. Neither City nor any of its
agents shall have control over the conduct of Contractor or any of Contractor's
employees, except as set forth in this Agreement. Contractor shall not, at any time, or
in any manner, represent that it or any of its officers, agents, or employees are in any
manner employees of City. Contractor shall pay all required taxes on amounts paid to
Contractor under this Agreement, and indemnify and hold City harmless from any and
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all taxes, assessments, penalties, and interest asserted against City by reason of the
work performed pursuant to this Agreement.
4.5 City shall have the right
due to Contractor under this Agreement any
result of Contractor's failure to promptly
indemnification arising under this Section 4.
to offset against the amount of any fees
amount due to City from Contractor as a
pay to City any reimbursement or
5. Indemnification
5.1 Contractor's Duty Contractor shall defend, indemnify, and hold the
City, its elected officials, officers, employees, volunteers, agents, and those City agents
serving as independent contractors in the role of City officials (collectively
"Indemnitees ") free and harmless from and against any and all claims (including, without
limitation, claims for bodily injury, death or damage to property), demands, obligations,
damages, actions, causes of action, suits, losses, bid protests, stop notices, judgments,
fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's
fees, disbursements and court costs) of every kind and nature whatsoever (individually,
a "Claim," collectively, "Claims "), in any manner arising out of or incident to the
performance of the Agreement, including without limitation, the payment of all
consequential damages and attorneys' fees and other related costs and expenses.
Further, Contractor shall appoint competent defense counsel, at Contractor's own cost,
expense and risk, to defend any and all such suits, actions or other legal proceedings of
every kind arising out of or incident to the performance of the Agreement that may be
brought or instituted against Indemnitees. Contractor shall pay and satisfy any
judgment, award or decree that may be rendered against City or the other Indemnitees
in any such suit, action, or other legal proceeding arising out of or incident to the
performance of the Agreement. Contractor shall reimburse the City and the other
Indemnitees, for any and all legal expenses and costs incurred by each of them in
connection therewith or in enforcing the indemnity herein provided. Contractor's
obligation to indemnify shall riot be restricted to insurance proceeds, if any, received by
Contractor or Indemnitees. This indemnity shall apply to all Claims and liability
regardless of whether any insurance policies are applicable.
5.2 Bid Protests In addition to its obligations pursuant to Section 5.1,
Contractor shall reimburse the City for all attorneys' fees and costs incurred by City in
connection with, arising out of or incident to any bid protest.
5.3 City's Sole Negligence Nothing in Section 5.1 shall be construed
to require Contractor to indemnify Indemnitees for that portion of any Claim to the extent
arising from the sole negligence or willful misconduct of the Indemnitees.
5.4 Nonwaiver of Rights Indemnitees do not, and shall not, waive any
rights that they may possess against Contractor because of the acceptance by City, or
the deposit with City, of any insurance policy or certificate required pursuant to this
Agreement.
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5.5 Waiver of Right of Subrogation Contractor, on behalf of itself and
all parties claiming under or through it, hereby waives all rights of subrogation against
the Indemnitees, while acting within the scope of their duties, from all claims, losses,
and liabilities arising out of or incident to activities or operations performed by or on
behalf of the Indemnitor.
5.6 Survival The provisions of this Section 5 shall survive the
termination of the Agreement and are in addition to any other rights or remedies that
Indemnitees may have under the law. Payment is not required as a condition precedent
to an Indemnitee's right to recover under this indemnity provision, and an entry of
judgment against a Contractor shall be conclusive in favor of the Indemnitee's right to
recover under this indemnity provision.
6. Insurance
6.1 Liability Insurance Contractor shall procure and maintain in full
force and effect for the duration of this Agreement insurance against claims for injuries
to persons or damages to property which may arise from or in connection with the
performance of the services hereunder by Contractor, and its agents, representatives,
employees and subcontractors. The policy limits set forth below do not act as a
limitation upon the amount of indemnification to be provided by Contractor. Contractor
shall complete and execute the following documents attached as Exhibits hereto and
incorporated herein by this reference:
6.1.1 Exhibit D -1
Commercial General Liability.
Automobile Liability.
6.1.2 Exhibit D -2
Additional Insured Endorsement -
Additional Insured Endorsement -
6.1.3 Exhibit D -3: Additional Insured Endorsement.
6.1.4 Minimum Scope of Insurance Unless otherwise approved
by City, coverage shall be at least as broad as:
6.1.5 Insurance Services Office Commercial General Liability
coverage (occurrence form CG 0001).
6.1.6 Insurance Services Office form number CA 0001 (Ed.
1/87) covering Automobile Liability, code 1 (any auto).
6.1.7 Insurance Services Office form number CG 20 10 11 85
(Ed. 11/85) covering Additional Insured — Owners, Lessees or Contactors (Form B).
6.1.8 Workers' Compensation insurance as required by the
State of California and Employer's Liability Insurance.
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6.1.9 Professional Liability insurance. Unless the City waives in
the requirement for professional liability insurance, Contractor shall provide to City the
standard form issued by the carrier.
6.2 Minimum Limits of Insurance Contractor shall maintain limits no
less than:
6.2.1 General Liability $2,000,000 per occurrence and in the
aggregate for bodily injury, personal injury and property damage. Commercial General
Liability Insurance or other form with a general aggregate limit shall apply separately to
this Agreement or the general limit shall be twice the required occurrence limit.
6.2.2 Automobile Liability $2,000,000 per occurrence for bodily
injury and property damage.
6.2.3 Employer's Liability $1,000,000 per occurrence and in
the aggregate for bodily injury or disease and Workers' Compensation Insurance in the
amount required by law.
6.3 Deductibles and Self- Insured Retentions Contractor shall inform
City of any deductibles or self- insured retentions except with respect to any professional
liability insurance.
6.4 Other Insurance Provisions The general liability and automobile
liability policies are to contain, or be endorsed to contain, the following provisions:
6.4.1 City, its officers, officials, employees, designated
volunteers and agents serving as independent contractors in the role of City officials,
are to be covered as additional insureds as respects: liability arising out of activities
performed by or on behalf of Contractor; products and completed operations of
Contractor; premises owned, occupied or used by Contractor; or automobiles owned,
leased, hired or borrowed by Contractor. The coverage shall contain no limitations on
the scope of protection afforded to City, its officers, officials, employees, designated
volunteers or agents serving as independent contractors in the role of City officials
which are not also limitations applicable to the named insured.
6.4.2 For any claims related to this Agreement, Contractor's
insurance coverage shall be primary insurance as respects City, its officers, officials,
employees, designated volunteers and agents serving as independent contractors in the
role of City officials. Any insurance or self- insurance maintained by City, their officers,
officials, employees, designated volunteers or agents serving as independent
contractors in the role of City officials shall be excess of Contractor's insurance and
shall not contribute with it.
6.4.3 Contractor's insurance shall apply separately to each
insured against whom claim is made or suit is brought, except with respect to the limits
of the insurer's liability.
. • •
6.4.4 Each insurance policy required by this Section 6 shall be
endorsed to state that coverage shall not be canceled or materially modified except
after 30 days prior written notice by first class mail has been given to City.
6.4.5 Each insurance policy, except for any professional
liability policy, required by this Section 6 shall expressly waive the insurer's right of
subrogation against City and its elected officials, officers, employees, servants,
attorneys, designated volunteers, and agents serving as independent contractors in the
role of city or agency officials.
6.5 Acceptability of Insurers Insurance is to be placed with insurers
with a current A.M. Best's rating of no less than A:VIII unless waived in writing by City's
Risk Manager.
6.6 Verification of Coverage All insurance coverages shall be
confirmed by execution of endorsements on forms approved by the City. The
endorsements are to be signed by a person authorized by that insurer to bind coverage
on its behalf. All endorsements are to be received and approved by City before
services commence. As an alternative to City forms, Contractor's insurer may provide
complete, certified copies of all required insurance policies, including endorsements
affecting the coverage required by these specifications.
7. Liquidated Damages Should the Contractor fail to complete the project,
or any part thereof, in the time agreed upon in the Contract, the Contractor shall
reimburse the City for the additional expense and damage for each calendar day that
the Contract remains uncompleted after the Contract completion date. It is agreed that
the amount of such additional expense and damage incurred by reason of failure to
complete the Contract is the per diem rate of $ _Z50 per calendar day. Such amount is
hereby agreed upon as liquidated damages for the loss to the City resulting from the
failure of the Contractor to complete the project within the allotted time and to the value
of the operation of the works dependent thereon. It is expressly understood and agreed
that this amount is a reasonable amount and is established in lieu of damages that are
incapable of calculation at the inception hereof; and this amount is not to be considered
in the nature of a penalty. The City shall have the right to deduct such damages from
any amount due, or that may become due to the Contractor, or the amount of such
damages shall be due and collectible from the Contractor or the Contractor's Surety.
Progress payments made after the scheduled completion date shall not constitute a
waiver of liquidated damages.
8. Suspension City may, in writing, order Contractor to suspend all or any
part of the Contractor's Services for the convenience of City or for work stoppages
beyond the control of City or Contractor. A suspension of the Services does not void
this Agreement.
9. Notices Any notices, bills, invoices, or reports authorized or required by
this Agreement shall be in writing and shall be deemed received on (a) the day of
delivery if delivered by hand or overnight courier service during Contractor's and City's
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regular business hours or by facsimile before or during Contractor's regular business
hours; or (b) on the third business day following deposit in the United States mail,
postage prepaid, to the addresses heretofore set forth in the Agreement, or to such
other addresses as the parties may, from time to time, designate in writing pursuant to
the provisions of this Section. All notices shall be addressed as follows:
If to City: City Clerk
City of Seal Beach
211 -8th Street
Seal Beach, California 90740
Telephone: (562) 431 -2527
Fax: (562) 493 -9857
With a copy to:
Public Works Director
City of Seal Beach
211 -8th Street
Seal Beach, California 90740
If to Contractor: Express Energy Services, Inc.
12570 Industry Street
Garden Grove, CA 92841
Telephone: 714.650.8870
Fax: 562.989.1316
Attn: Doc Rivers, President
10. Non - Assignabilitv; Subcontracting Contractor shall not assign, transfer,
or subcontract any interest in this Agreement or the performance of any of Contractor's
obligations hereunder. Any attempt by Contractor to so assign, transfer, or subcontract
any rights, duties, or obligations arising hereunder shall be null, void and of no effect.
11. Compliance with Laws Contractor shall comply with all applicable federal,
state and local laws, ordinances, codes and regulations in force at the time Contractor
performs the Services.
12. Non - Waiver of Terms, Rights and Remedies Waiver by either party of
any one or more of the conditions of performance under this Agreement shall not be a
waiver of any other condition of performance under this Agreement. In no event shall
the making by City of any payment to Contractor constitute or be construed as a waiver
by City of any breach of covenant, or any default which may then exist on the part of
Contractor, and the making of any such payment by City shall in no way impair or
prejudice any right or remedy available to City with regard to such breach or default.
13. Attorneys' Fees In the event that either party to this Agreement shall
commence any legal action or proceeding to enforce or interpret the provisions of this
Agreement, the prevailing party in such action or proceeding shall be entitled to recover
its costs of suit, including all attorneys' fees incurred in connection therewith.
:. •
14. Construction The validity, interpretation, and performance of this
Agreement shall be controlled by and construed under the laws of the State of
California. In the event of any asserted ambiguity in, or dispute regarding the
interpretation of any matter herein, the interpretation of this Agreement shall not be
resolved by any rules of interpretation providing for interpretation against the party who
causes the uncertainty to exist or against the party who drafted the Agreement or who
drafted that portion of the Agreement.
15. Entire Agreement This Agreement, including any other documents
incorporated herein by specific reference, represents the entire and integrated
agreement between Contractor and City. This Agreement supersedes all prior oral or
written negotiations, representations, or agreements. This Agreement may not be
amended, nor any provision or breach hereof waived, except in a writing signed by the
parties which expressly refers to this Agreement.
16. Severability The invalidity in whole or in part of any provisions of this
Agreement shall not void or affect the validity of the other provisions of this Agreement.
IN WITNESS WHEREOF, the parties, through their respective authorized
representatives, have executed this Agreement as of the date first written above.
CITY OF SEAL BEACH CONTRACTOR:
:
Jill R. Ingram, Acting City Manager
By:
Name: Doc Rivers
Title: President
Attest:
in
Linda Devine, City Clerk
B �,
N �a
Title:
Approved as to Form:
in
Quinn M. Barrow, City Attorney
y s e
Attachment "c"
Management Affiliates
Program Agreement
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MANAGEMENT AFFILIATES PROGRAM (MAP) — Program Agreement
This Management Affiliates Program (MAP) agreement is between Energy Innovation Group, LLC (Implementer) and City of Seal Beach (Customer). As used throughout this
document, Implementer and Customer are individually referred to as "Party" and collectively as "Parties ". Customer grants access to the following location in Seal Beach, CA: C
Hall -211 Eiahth Street Mary Wilson Library- 707 Electric Avenue Police Station- 911 Seal Beach Blvd Public Works -1776 Adolfo Lopez Road North Community Center, 3333 St. Cloud Drive Marina Community Center, 151
Marina Drive.. An audit to be conducted and /or measures being implemented at the Facilities are hereinafter referred to as "Project ". The Customer agrees to grant Implementer or
its sub - contractors access to the Facilities for the purposes of this Project.
Implementer is receiving funds from SCE for this Project, but Parties agree that SCE is not liable to either Party for any loss or damages, including incidental or consequential
damages, arising from this Agreement.
The Following are the Terms & Conditions for this Program:
IMPLEMENTER AGREES:
1. Owner Convenience. To coordinate visits to the Facilities with the Owner so
as to minimize any disruptions or inconvenience to the Owner.
2. Installation. To install, operate and maintain any equipment necessary to
identify and assess the energy savings of the Project during the initial audit in
a manner that is acceptable to the Owner.
3. Costs. To bear all of the actual costs associated with identifying and
assessing the energy savings of the Project during the initial audit to
determine economic and practical viability of a Project.
4. Compliance with Laws. To comply with all federal, state, and municipal
laws, ordinances, rules, orders, and regulations, which apply to its actions at
the Facility or to the Project.
5. Confidentiality. Not to use the names or identifying characteristics of the
Owner or Owner's Facility for published project reports, advertising, sales
promotion or other publicity without the Owner's written approval.
6. Removal. To remove any equipment upon completion of the analysis period
(no more than 30 days from installation) and to leave the Facility in
substantially the same condition it was prior to the Project.
CUSTOMER AGREES:
7. Permission. To permit Implementer or its sub - contractors to visit and monitor the
Facility and to install any necessary equipment.
8. Access. To permit Implementer reasonable access to and egress from the Facility
during normal business hours to carry out the work of this study and to direct Owner's
employees and contractors to cooperate with Implementer during the course of this
Project.
9. Equipment Ownership. Owner has no ownership interest or title in the equipment
that may be used for the Project solely to determine energy savings.
10. Removal. To permit removal of the equipment at any time by Implementer.
11. Confidentiality. Not to use the names or identifying characteristics of Implementer for
any advertising, sales promotion or publicity of any kind without prior written approval
of Implementer.
BOTH PARTIES AGREE:
12. Incidental and Consequential Damages: NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INCIDENTIAL, SPECIAL OR CONSEQUENTIAL DAMAGES.
13. Term of Agreement. The term of this Agreement is from September 16, 2010 to December 31, 2012.
14. Ownership of Information. Implementer may provide Customer with information about its findings regarding the Project, but Implementer shall retain all ownership rights,
including exclusive copyright ownership, in all data, reports, research results, summaries, information, or other written, recorded, photographic or visual materials
(hereinafter "Information ") produced and collected during the term of this agreement.
15. If Tenant. If the Facility is under lease, Customer's tenant who controls the Facility, by executing this agreement, assumes the rights and obligations of Customer
hereunder.
Customer Name (please print)
Edward Berlen
�att�re A
G) U
Title
Pro ram Coordinator
Date
September 15 2010
Authorized Agent Name (please print)
Signature
Title
Date
" Califomia consumers are not obligated to purchase any lull fee service or other service not funded by this Program. This Program is funded by California utility ratepayers under the auspices of the Califomia Public Utilities
Commission (CPUC)."
Attachment "®"
SCE Third Party Terms and Conditions
SCE 2010 -2012 Third Party Implemented Program
TERMS AND CONDITIONS
SOUTHERN CALIFORNIA EDISON ( "SCE")
Limitation on Funding: The SCE 2010 -2012 Third Party Implemented Program for energy
efficiency ( "Program ") has limited funding and is offered on a first -come, first -served basis
until funding is depleted or the Program is terminated, whichever occurs first. Customer
understands that submission of a Program Agreement is not a guarantee of payment by SCE,
nor is it a guaranty of funding availability. Upon SCE's approval of the Project Feasibility
Study and execution of a Customer Agreement with SCE, funds will be reserved by SCE;
however payment of any incentive will remain subject to post installation performance
verification and compliance with ALL Program terms and conditions.
2. Site Access Customer agrees to provide Consultant reasonable access to its facilities for the
purpose of carrying out the Program services described herein. Customer further agrees to
provide reasonable access to SCE and/or its agents or assigns or contractors and the
California Public Utilities Commission ( "CPUC ") and/or its agents or assigns for inspections,
installation verification, or other Program- related purposes. In the event SCE conducts a pre -
installation site inspection during the term of this Agreement, all existing equipment required
to establish the Project baseline must be operating and available for inspection.
3. Eli ibili : Customer acknowledges the following eligibility requirements for participation in
the Program: (i) Electric service to Customer's building must be provided by SCE and
Customer must pay the Public Goods Charge ( "PGC ") on the SCE electric meter where the
energy efficient equipment is installed; (ii) Project Site must be a nonresidential facility
located within SCE's service territory; (iii) Energy savings and demand reduction resulting
from the project must be above and beyond baseline energy performance, which include
state - mandated codes, federal- mandated codes, industry- accepted performance standards or
other baseline energy performance standards as determined by SCE, and specific restrictions
may apply to each energy efficiency solution as outlined in the 2010 -2012 Third Party
Implemented Program Policies and Procedures Manual; (iv) Projects must meet all other
Program requirements, terms and conditions; (v) Customer certifies that Customer will not
apply or receive rebates, incentives, or services for the incentives covered by this Agreement
in an amount greater than the total cost of the project or measure(s) (including labor and
materials); and (vi) Customer certifies that the energy savings or demand reduction
components of the projects applied for under this Program have not and will not receive any
funds from any other utility, state or local program funded by the PGC surcharge.
4. Release and Use of Information Customer authorizes SCE to release to Consultant and/or its
agents Customer's contact and other SCE Customer account information, including but not
limited to Customer's energy consumption data, for purposes related only to Customer's
participation in the Program. Customer agrees that Consultant may use Customer's name,
Program services and resulting energy - savings in reports or other documentation submitted to
SCE and/or the CPUC. Customer further authorizes Consultant, SCE and/or their agents to
contact Customer with regard to the initiation, performance, and/or verification of any of the
terms and conditions of the applicable Program.
5. Calculation of Energy! Savings SCE will not pay incentives for any energy savings in excess
of the actual annual amount of Customer's electricity usage at each SCE service account for
which incentives are requested.
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Third Party Implemented — Program Agreement
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6. Estimated Savings May Not Equal Actual Savings Customer understands that all energy
savings, incentives, and installed costs provided by Consultant (or SCE) pursuant to this
Agreement are estimates only, and are subject to change based on SCE review and approval,
and that Customer is solely responsible for the selection, purchase, installation and ownership
of the Measures, equipment and services under the Program.
7. RISK ALLOCATIONANDEMNITY CUSTOMER ACKNOWLEDGES AND AGREES
THAT, UNDER THIS THIRD PARTY PROGRAM, SCE WILL ONLY BE PROVIDING
CUSTOMER WITH MONEY IN THE FORM OF A REBATE OR INCENTIVE
PAYMENT. I UNDERSTAND THAT SCE MAKES NO REPRESENTATION OR
WARRANTY, EXPRESS OR IMPLIED, REGARDING MANUFACTURERS, DEALERS,
CONTRACTORS, MATERIALS OR WORKMANSHIP, OR REGARDING SELECTION
OR QUALIFICATION OF CONSULTANT. I ALSO UNDERSTAND THAT SCE MAKES
NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY
PARTICULAR PURPOSE, USE, OR APPLICATION OF THE PRODUCTS OR
SOLUTIONS. I AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS, AND
HEREBY RELEASE SCE, ITS AFFILIATES, SUBSIDIARIES, PARENT COMPANY,
OFFICERS, DIRECTORS, AGENTS AND EMPLOYEES OF EACH OF THEM, FROM
AND AGAINST ALL CLAIMS, DEMANDS, LOSSES, DAMAGES, COSTS, EXPENSES,
AND LIABILITY (LEGAL, CONTRACTUAL, OR OTHERWISE), WHICH ARISE FROM
OR ARE IN ANY WAY CONNECTED WITH MY PARTICIPATION IN THE
PROGRAM.
8. Termination This Program may be suspended or terminated by SCE at any time without
prior notice.
By signing below, I certify that I have read, understand and agree to all the terms and conditions
contained herein.
Customer Name:
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Date: February 28, 2011
Third Party Implemented — Program Agreement
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