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HomeMy WebLinkAboutReso 80-2016 (16-422)City of South San Francisco P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA Resolution: RES 80 -2016 File Number: 16 -422 Enactment Number: RES 80 -2016 RESOLUTION APPROVING: (1) SELECTION OF OPTERRA ENERGY SERVICES FOR THE ENERGY EFFICIENCY PROJECT AND (2) EXECUTION OF A PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF SOUTH SAN FRANCISCO AND OPTERRA ENERGY SERVICES FOR THE PREPARATION OF AN ENERGY EFFICIENCY PLAN FOR $50,000. WHEREAS, the City of South San Francisco ( "City ") is responsible for operating and maintaining the municipal facilities within the City; and WHEREAS, the City has an adopted Climate Action Plan for the purpose of reducing energy usage and greenhouse gas emissions on a community -wide basis; and WHEREAS, the Climate Action Plan contains specific actions and strategies for reducing energy usage and greenhouse gas emissions at municipal facilities; and WHEREAS, the City has completed efficiency projects at municipal facilities which have reduced energy usage and utility cost; and WHEREAS, recent audits have determined that there are additional opportunities to develop and implement energy efficiency projects at municipal facilities; and WHEREAS, City staff issued a Request for Proposal (RFP) for an Energy Efficiency Project ( "Project ") in November, 2015 to nine (9) qualified energy service companies, and received one (1) proposal in response from OpTerra Energy Services ( "OpTerra ES "); and WHEREAS, staff met with representatives from OpTerra ES on multiple occasions to discuss the proposal, sought references from OpTerra ES's previous municipal - clients and was satisfied that OpTerra ES's proposal would further the City's goals; and WHEREAS, staff recommends approving a Professional Services Agreement with OpTerra Energy Services in the amount of $50,000 for the preparation of an Energy Efficiency Plan for municipal facilities, which will include an audit, project development, and a financing plan; such Agreement is attached hereto and incorporated herein; and WHEREAS, the $50,000 fee is included in the City of South San Francisco's 2016 -2017 Capital Improvement Program ( "CIP "). NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of South San Francisco Page 1 File Number. 16 -422 Enactment Number. RES 80 -2016 that the City Council hereby takes the following actions: 1. Selects OpTerra Energy Services ( "OpTerra ") for the Project; 2. Approves a Professional Services Agreement with OpTerra ES in the amount of $50,000 for the preparation of an Energy Efficiency Plan, attached hereto and incorporated herein; and 2. Confirms the City Manager's authority to execute the Professional Services Agreement and directs the City Manager to do so, subject to review and approval as to form by the City Attorney; and 3. Authorizes the City Manager to take any other related action necessary to further the intent of this Resolution. At a meeting of the City Council on 7/13/2016, a motion was made by Richard Garbarino, seconded by Liza Normandy, that this Resolution be approved. The motion passed. Yes: 4 Councilmember Normandy, Councilmember Garbarino, Vice Mayor Gupta, and Mayor Addiego No: 1 Councilmember Matsumoto Attest by f Krista artinelli Page 2 OpTerra ES Project #: ACECN OpTerra ES Contract #: R3129 PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF SOUTH SAN FRANCISCO AND OPTERRA ENERGY SERVICES THIS AGREEMENT for professional services is made by and between the City of South San Francisco ( "Cy ") and OpTerra Energy Services, Inc. ( "OpTerra ES ") (together sometimes referred to as the "Parties "), as of July 13, 2016 (the "Effective Date "). Section 1. SERVICES. Subject to the terms and conditions set forth in this Agreement, OpTerra ES shall provide to City the services described in the Scope of Services attached as Exhibit A, attached hereto and incorporated herein, at the time and place and in the manner specified therein. In the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit A, the Agreement shall prevail. 1.1 Term of Services. The term of this Agreement shall begin on the Effective Date and shall end on 30 June 2017, and OpTerra ES shall complete the services ( "Services ") described in Exhibit A prior to that date, unless the term of the Agreement is otherwise terminated or extended, as provided for in Section 8. The time provided to OpTerra ES to complete the services required by this Agreement shall not affect the City's right to terminate the Agreement, as provided for in Section 8. 1.2 Standard of Performance. OpTerra ES shall perform all Services required pursuant to this Agreement in the manner and according to the standards observed by a competent practitioner of the profession in which OpTerra ES is engaged in the geographical area in which OpTerra ES practices its profession. OpTerra ES shall prepare all work product required by this Agreement in a substantial, first -class manner and shall conform to the standards of quality normally observed by a person practicing in OpTerra ES's profession. 1.3 Assignment of Personnel. OpTerra ES shall assign only competent personnel to perform Services pursuant to this Agreement. In the event that City, in its reasonable discretion, at any time during the term of this Agreement, desires the reassignment of any such persons, OpTerra ES shall, immediately upon receiving notice from City of such desire of City, reassign such person or persons. 1.4 Time. OpTerra ES shall devote such time to the performance of Services pursuant to this Agreement as may be reasonably necessary to meet the standard of performance provided in Section 1.2 above and to satisfy OpTerra ES's obligations hereunder. 1.5 Purpose. The Parties acknowledge and agree that the primary purpose of the Services contemplated by this Agreement is to provide an engineering and economic basis for the implementation of the energy conservation and generation measures contemplated in the Scope of Services attached as Exhibit A, in furtherance of which the Parties intend, promptly following the completion of the Services, to negotiate and execute a contract providing for, among other things, engineering, procurement, installation, construction and training services (an "Energy Services Contract "). However, nothing contained in this Section 1.5 shall be interpreted to constitute an affirmative obligation to enter into an Energy Services Contract. Professional Services Agreement between July 13, 2016 City of South San Francisco and OpTerra Energy Services Page 1 of 14 Section 2 COMPENSATION. City hereby agrees to pay OpTerra ES $50,000 (also referred to as the "Assessment Fee "), notwithstanding any contrary indications that may be contained in OpTerra ES's proposal dated 11 December 2015 (the "Proposal °), for services to be performed and reimbursable costs incurred under this Agreement. The Assessment Fee will be due and payable thirty (30) calendar days after OpTerra ES's submission of the Recommendations and IGA Report; provided that if on such thirtieth (30th) calendar day OpTerra ES and City are negotiating an Energy Services Contract in good faith, the Assessment Fee will be incorporated into the total contract amount payable under such Energy Services Contract. If negotiations are abandoned and an Energy Services Contract is not ultimately executed, then OpTerra ES will issue an invoice requesting payment of the Assessment Fee for the Services rendered under this Agreement. City will pay the Assessment Fee within thirty (30) calendar days from the date of invoice. 2.1 Payment of Taxes. OpTerra ES is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes. OpTerra ES represents and warrants that OpTerra ES is a resident of the State of California in accordance with California Revenue & Taxation Code Section 18662, as may be amended, and is exempt from withholding. OpTerra ES accepts sole responsible for verifying the residency status of any subcontractors and withhold taxes from non - California subcontractors as required by law. 2.2 Payment upon Termination. In the event that the City or OpTerra ES terminates this Agreement pursuant to Section 8, the City shall compensate OpTerra ES for outstanding costs and reimbursable expenses up to the Assessment Fee amount incurred for services satisfactorily completed as of the date of written notice of termination. OpTerra ES shall maintain adequate logs and timesheets in order to verify costs incurred to that date. However, in the event that OpTerra ES terminates this Agreement prior to providing the City with the IGA Report or any Recommendations, City shall not be required to compensate OpTerra for outstanding costs and /or reimbursable expenses. 2.3 Authorization to Perform Services. OpTerra ES is not authorized to perform any Services or incur any costs whatsoever under the terms of this Agreement until receipt of authorization from the Contract Administrator. Section 3. FACILITIES AND EQUIPMENT. Except as set forth herein, OpTerra ES shall, at its sole cost and expense, provide all facilities and equipment that may be necessary to perform the Services required by this Agreement. Section 4. INSURANCE REQUIREMENTS. Before beginning any Services under this Agreement, OpTerra ES, at its own cost and expense, unless otherwise specified below, shall procure the types and amounts of insurance listed below against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the Services hereunder by OpTerra ES and its agents, representatives, employees, and subcontractors. Consistent with the following provisions, OpTerra ES shall provide Certificates of Insurance, attached hereto and incorporated herein as Exhibit B, indicating that OpTerra ES has obtained or currently maintains insurance that meets the requirements of this section and under forms of insurance reasonably satisfactory to the City. OpTerra ES shall maintain the insurance Professional Services Agreement between July 13, 2016 City of South San Francisco and OpTerra Energy Services Page 2 of 14 policies required by this section throughout the term of this Agreement. The cost of such insurance is included in OpTerra ES's compensation. To the extent OpTerra ES utilizes subcontractors in the performance of the Services, OpTerra ES shall not allow any subcontractor to commence work on any subcontract until such subcontractor has obtained all insurance required herein for the subcontractor(s). 4.1 Workers' Compensation. OpTerra ES shall, at its sole cost and expense, maintain Statutory Workers' Compensation Insurance and Employer's Liability Insurance for any and all persons employed directly or indirectly by OpTerra ES. The Statutory Workers' Compensation Insurance and Employer's Liability Insurance shall be provided with limits of not less than ONE MILLION DOLLARS ($1,000,000) per accident. In the alternative, OpTerra ES may rely on a self- insurance program to meet those requirements, but only if the program of self - insurance complies fully with the provisions of the California Labor Code. Determination of whether a self - insurance program meets the standards of the Labor Code shall be solely in the discretion of the Contract Administrator (as defined in Section 10.9). The insurer, if insurance is provided, or OpTerra ES, if a program of self - insurance is provided, shall waive all rights of subrogation against the City and its officers, officials, employees, and volunteers for loss arising from Services performed under this Agreement. 4.2 Commercial General and Automobile Liability Insurance. 4.2.1 General requirements. OpTerra ES, at its own cost and expense, shall maintain commercial general and automobile liability insurance for the term of this Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence, combined single limit coverage for risks associated with the Services contemplated by this Agreement. If a Commercial General Liability Insurance or an Automobile Liability form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the services to be performed under this Agreement or the general aggregate limit shall be at least twice the required occurrence limit. Such coverage shall include but shall not be limited to, protection against claims arising from bodily and personal injury, including death resulting there from, and damage to property resulting from activities contemplated under this Agreement, including the use of owned and non -owned automobiles. 4.2.2 Minimum scope of coverage. Commercial general coverage shall be at least as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001 or GL 0002 (most recent editions) covering comprehensive General Liability and Insurance Services Office form number GL 0404 covering Broad Form Comprehensive General Liability. Automobile coverage shall be at least as broad as Insurance Services Office Automobile Liability form CA 0001 (ed. 12190) Code 8 and 9. No endorsement shall be attached limiting the coverage. 4.2.3 Additional requirements. Each of the following shall be included in the insurance coverage or added as a certified endorsement to the policy: Professional Services Agreement between July 13, 2016 City of South San Francisco and OpTerra Energy Services Page 3 of 14 a. The insurance shall cover on an occurrence or an accident basis, and not on a claims -made basis. Any failure of OpTerra ES to comply with reporting provisions of the policy shall not affect coverage provided to City and its officers, employees, agents, and volunteers. 4.3 Professional Liability Insurance. 4.3.1 General requirements. OpTerra ES, at its own cost and expense, shall maintain for the period covered by this Agreement professional liability insurance for licensed professionals performing Services pursuant to this Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000) covering the licensed professionals' errors and omissions. Any deductible or self - insured retention shall not exceed ONE HUNDRED FIFTY THOUSAND DOLLARS $150,000 per claim. 4.3.2 Claims -made limitations. The following provisions shall apply if the professional liability coverage is written on a claims -made form: a. The retroactive date of the policy must be shown and must be before the date of the Agreement. b. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the Agreement or the Services, so long as commercially available at reasonable rates. If coverage is canceled or not renewed and it is not replaced with another claims -made policy form with a retroactive date that precedes the date of this Agreement, OpTerra ES must provide extended reporting coverage for a minimum of five (5) years after completion of the Agreement or the Services. The City shall have the right to exercise, at OpTerra ES's sole cost and expense, any extended reporting provisions of the policy, if OpTerra ES cancels or does not renew the coverage. A copy of the claim reporting requirements must be submitted to the City prior to the commencement of any Services under this Agreement. 4.4 All Policies Requirements. 4.4.1 Acceptability of insurers. All insurance required by this section is to be placed with insurers with a Bests' rating of no less than A:VII. 4.4.2 Verification of coverage. Prior to beginning any Services under this Agreement, OpTerra ES shall furnish City with complete copies of all policies delivered to OpTerra ES by the insurer, including complete copies of all endorsements attached Professional Services Agreement between July 13, 2016 City of South San Francisco and OpTerra Energy Services Page 4 of 14 to those policies. All copies of policies and certified endorsements shall show the signature of a person authorized by that insurer to bind coverage on its behalf. If the City does not receive the required insurance documents prior to OpTerra ES beginning Services, it shall not waive OpTerra ES's obligation to provide them. The City reserves the right to require complete copies of all required insurance policies at any time. 4.4.3 Notice of Reduction in or Cancellation of Coverage. A certified endorsement shall be attached to all insurance obtained pursuant to this Agreement stating that coverage shall not be suspended, voided, canceled by either party, or reduced in coverage or in limits, except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City. In the event that any coverage required by this section is reduced, limited, cancelled, or materially affected in any other manner, OpTerra ES shall provide written notice to City at OpTerra ES's earliest possible opportunity and in no case later than ten (10) working days after OpTerra ES is notified of the change in coverage. 4.4.4 Additional insured, primary insurance. City and its officers, employees, agents, and volunteers shall be covered as additional insureds with respect to each of the following: liability arising out of activities performed by or on behalf of OpTerra ES; products and completed operations of OpTerra ES, as applicable; premises owned, occupied, or used by OpTerra ES; and automobiles owned, leased, or used by OpTerra ES in the course of providing services pursuant to this Agreement. The coverage shall contain no special limitations on the scope of protection afforded to City or its officers, employees, agents, or volunteers. A certified endorsement must be attached to all policies stating that coverage is primary insurance with respect to the City and its officers, officials, employees and volunteers, and that no insurance or self- insurance maintained by the City shall be called upon to contribute to a loss under the coverage. 4.4.5 Deductibles and Self- Insured Retentions. OpTerra ES shall disclose to and obtain the approval of City (not to be unreasonably withheld) for the self- insured retentions and deductibles before beginning any of the services called for by any term of this Agreement. Further, if OpTerra ES's insurance policy includes a self - insured retention that must be paid by a named insured as a precondition of the insurer's liability, or which has the effect of providing that payments of the self - insured retention by others, including additional insureds or insurers, do not serve to satisfy the self - insured retention, such provisions must be modified by special endorsement so as to not apply to the additional insured coverage required by this agreement so as to not prevent any of the parties to this Agreement from satisfying or paying the self - insured retention required to be paid as a precondition to the insurer's liability. Additionally, the certificates of insurance must note whether the policy does or does not include any self - insured retention and also must disclose the deductible. Professional Services Agreement between July 13, 2016 City of South San Francisco and OpTerra Energy Services Page 5 of 14 During the period covered by this Agreement, OpTerra ES will notify the City of increases to deductibles or self- insured retentions with respect to City, its officers, employees, agents, and volunteers. 4.4.6 Subcontractors. OpTerra ES shall require its subcontractors to maintain insurance coverage satisfying all of the requirements stated herein. 4.4.7 Wasting Policy No insurance policy required by Section 4 shall include a "wasting" policy limit. 4.4.8 Variation. The City may approve a variation in the foregoing insurance requirements, upon a determination that the coverage, scope, limits, and forms of such insurance are either not commercially available, or that the City's interests are otherwise fully protected. 4.5 Remedies. In addition to any other remedies City may have if OpTerra ES fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for OpTerra ES's breach: a. Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement; b. Order OpTerra ES to stop work under this Agreement or withhold any payment that becomes due to OpTerra ES hereunder, or both stop work and withhold any payment, until OpTerra ES demonstrates compliance with the requirements hereof; and/or c. Terminate this Agreement. Section 5. INDEMNIFICATION; LIMITATION OF LIABILITY AND OPTERRA ES'S RESPONSIBILITIES. 5.1 Indemnification. OpTerra ES shall indemnify, defend with counsel reasonably acceptable to the City and OpTerra ES, and hold harmless the City and its officials, officers, employees, agents, and volunteers from and against any and all losses, liability, claims, suits, actions, damages, and causes of action arising out of any personal injury, bodily injury, loss of life, or damage to property, or any violation of any federal, state, or municipal law or ordinance, to the extent caused, in whole or in part, by the willful misconduct or negligent acts or omissions of OpTerra ES or its employees, subcontractors, or agents, by acts for which they could be held strictly liable, or by the quality or character of their work. The foregoing obligation of OpTerra ES shall not apply to the extent (1) the injury, loss of life, damage to property, or violation of law arises from the gross negligence or willful misconduct of the City or its officers, employees, agents, or volunteers and (2) the actions of OpTerra ES or its employees, subcontractor, or agents have contributed in no part to the injury, loss of life, Professional Services Agreement between July 13, 2016 City of South San Francisco and OpTerra Energy Services Page 6 of 14 damage to property, or violation of law. It is understood that the duty of OpTerra ES to indemnify and hold harmless includes the duty to defend as set forth in Section 2778 of the California Civil Code. Acceptance by City of insurance certificates and endorsements required under this Agreement does not relieve OpTerra ES from liability under this indemnification and hold harmless clause. This indemnification and hold harmless clause shall apply to any damages or claims for damages whether or not such insurance policies shall have been determined to apply. By execution of this Agreement, OpTerra ES acknowledges and agrees to the provisions of this Section and that it is a material element of consideration. In the event that OpTerra ES or any employee, agent, or subcontractor of OpTerra ES providing services under this Agreement is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of City, OpTerra ES shall indemnify, defend, and hold harmless City for the payment of any employee and /or employer contributions for PERS benefits on behalf of OpTerra ES or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City. 5.2 Limitation on Liability. The liability of a defaulting Party will be limited to direct, actual damages. Neither Party shall be liable to the other Party for any special, indirect, incidental or consequential damages whatsoever, whether in contract, tort (including negligence) or strict liability, including, but not limited to, operational losses in the performance of business such as lost profits or revenues or any increase in operating expense. 5.3 Failure to Obtain Incentive Funds. OpTerra ES cannot guarantee that City will receive funding from any energy efficiency rebate, incentive, and/or loan program(s) (collectively, "Incentive Funds "); OpTerra ES expressly disclaims any liability for City's failure to receive any portion of the Incentive Funds, and City acknowledges and agrees that OpTerra ES will have no liability for any failure to receive all or any portion of the Incentive Funds. Section 6. STATUS OF OPTERRA ES. 6.1 Independent Contractor. The Parties hereto agree that OpTerra ES, and any agents and employees of OpTerra ES, its subcontractors and /or consultants, is acting in an independent capacity in the performance of this Agreement, and not as a public official, officer, employee, consultant, or agent of City for purposes of conflict of interest laws or any other applicable law. This Agreement may not be construed to represent the creation of an employer /employee or principal /agent relationship. OpTerra ES will act in an independent capacity and retain sole discretion in the manner and means of carrying out its activities under this Agreement. OpTerra ES is free to work for other entities while under contract with City. 6.2 OpTerra ES Not Agent. Under no circumstances shall OpTerra ES have any authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent or to bind City to any obligation whatsoever. Professional Services Agreement between July 13, 2016 City of South San Francisco and OpTerra Energy Services Page 7 of 14 6.3 OpTerra ES Not Municipal Advisor. The Parties acknowledge and agree that OpTerra ES is not a municipal advisor and cannot give advice to City with respect to municipal securities or municipal financial products absent City being represented by, and relying upon the advice of, an independent registered municipal advisor. OpTerra ES is not subject to a fiduciary duty with regard to City or the provision of information to City. City will consult with an independent registered municipal advisor about the financing option(s) appropriate for City's situation. Section 7. LEGAL REQUIREMENTS. 7.1 Governing Law. The laws of the State of California shall govern this Agreement. 7.2 Compliance with Applicable Laws. OpTerra ES and any subcontractors shall comply with all laws applicable to the performance of the Services hereunder. 7.3 Other Governmental Regulations. To the extent that this Agreement may be funded by fiscal assistance from another governmental entity, OpTerra ES and any subcontractors shall comply with all applicable rules and regulations to which City is bound by the terms of such fiscal assistance program. 7.4 Licenses and Permits. OpTerra ES represents and warrants to City that OpTerra ES and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals, including from City, of what -so -ever nature that are legally required to practice their respective professions. OpTerra ES represents and warrants to City that OpTerra ES and its employees, agents, any subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions. In addition to the foregoing, OpTerra ES and any subcontractors shall obtain and maintain, during the term of this Agreement, valid Business Licenses from City. 7.5 Nondiscrimination and Equal Opportunity. OpTerra ES shall not discriminate, on the basis of a person's race, religion, color, national origin, age, physical or mental handicap or disability, medical condition, marital status, sex, or sexual orientation, against any employee, applicant for employment, subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or programs provided by OpTerra ES under this Agreement. OpTerra ES shall comply with all applicable federal, state, and local laws, policies, rules, and requirements related to equal opportunity and nondiscrimination in employment, contracting, and the provision of any services that are the subject of this Agreement, including but not limited to the satisfaction of any positive obligations required of OpTerra ES thereby. OpTerra ES shall include the provisions of this Subsection in any subcontract approved by the Contract Administrator or this Agreement. Professional Services Agreement between July 13, 2016 City of South San Francisco and OpTerra Energy Services Page 8 of 14 Section 8. TERMINATION AND MODIFICATION. 8.1 Termination. City may cancel this Agreement at any time and without cause upon written notification to OpTerra ES. OpTerra ES may cancel this Agreement for cause upon 30 days' written notice to City and shall include in such notice the reasons for cancellation. In the event of termination, OpTerra ES shall be entitled to compensation for services performed to the date of notice of termination pursuant to Section 2.2; City, however, may condition payment of such compensation upon OpTerra ES delivering to City all materials described in Section 9.1. 8.2 Extension. The Parties may agree to extend the end date of this Agreement beyond that provided for in Section 1.1. Any such extension shall require a written amendment to this Agreement, as provided for herein. 8.3 Amendments. The parties may amend this Agreement only by a writing signed by all the parties. 8.4 Assignment and Subcontracting. OpTerra ES may not assign this Agreement or any interest therein without the prior written approval of the Contract Administrator. OpTerra ES may not subcontract any portion of the performance contemplated and provided for herein, other than to the subcontractors noted in the Proposal, without prior written approval of the Contract Administrator. 8.5 Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between City and OpTerra ES shall survive the termination of this Agreement. 9.1 Records Created as Part of OpTerra ES's Performance. City will not, by virtue of this Agreement, acquire any interest in any formulas, patterns, devices, secret inventions or processes, copyrights, patents, other intellectual or proprietary rights, or similar items of property which are or may be used in connection with the services. However, City will own the IGA Report in consideration for payment of the Assessment Fee and may use the IGA Report in any manner that the City sees fit; provided, however, that any self - implementation or utilization (or implementation or utilization by a contractor hired by the City) of any of the data or recommendations within the IGA Report will be at the City's sole risk and without liability to OpTerra ES. City agrees to defend, indemnify and hold harmless, OpTerra ES, its subcontractors, and their directors, employees, subcontractors, and agents from liability associated with or resulting from the self - implementation or utilization of the data or recommendations within the IGA Report. With the exception of the IGA Report, all other data, proposals, plans, specifications, flow sheets, drawings, and other work product Professional Services Agreement between July 13, 2016 City of South San Francisco and OpTerra Energy Services Page 9 of 14 prepared or produced by OpTerra ES hereunder ( "Work Product ") and furnished directly or indirectly, in writing or otherwise, to City under this Agreement will remain OpTerra ES's property and will be used only in connection with work performed by OpTerra ES. OpTerra ES will be deemed the author and owner of such Work Product and will retain all common law, statutory and other reserved rights, including copyrights. The Work Product may not be used by City as a basis for facility construction or implementation of ECMs developed herein by any entity other than OpTerra ES, without the prior written agreement of OpTerra ES. Any unauthorized use of the Work Product will be at City's sole risk and without liability to OpTerra ES, and City agrees to defend, indemnify and hold harmless, OpTerra ES, its subcontractors, and their directors, employees, subcontractors, and agents from liability associated with or resulting from such unauthorized use. 9.2 OpTerra ES's Books and Records. OpTerra ES shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services or expenditures and disbursements charged to the City under this Agreement for a minimum of three (3) years, or for any longer period required by law, from the date of final payment to OpTerra ES under this Agreement. 9.3 Inspection and Audit of Records. Any records or documents that Section 9.2 of this Agreement requires OpTerra ES to maintain shall be made available for inspection, audit, and /or copying (at City's cost and expense) at any time during OpTerra ES's regular business hours, upon five days' prior written request of the City. Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds TEN THOUSAND DO1_IARS ($10,000.00), the Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of the City, for a period of three (3) years after final payment under the Agreement. 9.4 Records Submitted to City. Except to the extent that an exemption to the California Public Records Act may apply, all records submitted to City become a matter of public record, and shall be regarded as public records, with the exception of those elements in each record that are defined by OpTerra ES and plainly marked as "Confidential," "Business Secret" or "Trade Secret." The City shall not be liable or in any way responsible for the disclosure of any such record or portions thereof, if OpTerra ES has not plainly marked it as a "Trade Secret" or "Business Secret," or if disclosure is required under the California Public Records Act. Although the California Public Records Act recognizes that certain confidential trade secret information may be protected from disclosure, the City may not be in a position to establish that the information that OpTerra ES submits is a trade secret. If a request is made for information marked "Trade Secret" or "Business Secret," and the requester takes legal action seeking release of the materials it believes does not constitute trade secret information, by submitting a record, OpTerra ES agrees to indemnify, defend and hold harmless the City, its agents and employees, from any judgment, fines, penalties, and award of attorneys fees awarded against the City in favor of the party requesting the information, and any and all Professional Services Agreement between July 13, 2016 City of South San Francisco and OpTerra Energy Services Page 10 of 14 costs connected with that defense. This obligation to indemnify survives the City's award and completion of the contract. OpTerra ES agrees that this indemnification survives as long as the trade secret information is in the City's possession, which includes a minimum retention period for such documents. Section 10 MISCELLANEOUS PROVISIONS. 10.1 Attorneys' Fees. If a party to this Agreement brings any judicial reference action, to enforce or interpret the provisions of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees in addition to any other relief to which that party may be entitled. 10.2 Judicial Reference Proceedings. A dispute arising out of or relating to this Agreement, the transaction contemplated by this Agreement, or the breach of this Agreement, including any and all questions of law or fact relating thereto (a "Dispute'), shall be resolved exclusively pursuant to the provisions for reference and trial by referee (without jury) set forth in California Code of Civil Procedure §638 et seq., as expressly modified by the provisions hereof ("Reference Proceeding'). Either Party may initiate judicial reference proceedings by written notice to the other Party. The referee ( "Referee ") shall be a retired or former Superior Court judge residing in San Mateo County, California, who is either (1) agreed to by the parties within fifteen (15) days of the notice by any party to the other of the intention to initiate a Reference Proceeding pursuant to this Section to resolve the Dispute, or (2) failing such agreement, is appointed pursuant to California Code of Civil Procedure §640 in an action filed in the Superior Court of San Mateo County, California (the "Court"). The Parties agree that any Party may file with the Clerk of the Court, and /or with the appropriate judge of such Court, any and all petitions, motions, applications or other documents necessary to obtain the appointment of such a Referee immediately upon the commencement of any Reference Proceeding, and to conduct all necessary discovery and to proceed to a trial as expeditiously as possible. It is the Parties' intention, and the Parties and the Referee shall use their best efforts to be certain, that (a) discovery be conducted for a period no longer than six (6) months from the date ( "Referee Date') the Referee is appointed (whether by stipulation or by the Court), excluding motions regarding discovery, and (b) trial be set on a date that is within nine (9) months of the Referee Date. All discovery motions shall be filed with the Referee and served upon the opposing Party no later than one week after the end of the six - month discovery period. All proceedings, including trial, before the Referee, shall be conducted at a neutral location (unless otherwise stipulated by the Parties). The Parties agree that said Referee shall be a judge for all purposes (including (i) ruling on any and all discovery matters and motions and any and all pretrial or trial motions, (ii) setting a schedule of pretrial proceedings, and (iii) making any other orders or rulings a sitting judge of the Court would be empowered to make in any action or proceeding in the Court). Any matter before the Referee shall be governed by the substantive law of California, its Code of Civil Procedure, Rules of Court, and Evidence Code, except as otherwise specifically agreed by the Parties and approved by the Referee. The Parties intend this general reference agreement to be specifically enforceable in accordance with the California Code of Civil Procedure. Any appeal of the decisions of the Referee shall be appealable to the same extent and in the same manner that such decision would be appealable if rendered by a Professional Services Agreement between July 13, 2016 City of South San Francisco and OpTerra Energy Services Page 11 of 14 judge of the Court. The Referee shall in his/her statement of decisions set forth his /her findings of fact and conclusions of law. During the pendency of any such Reference Proceeding and before the entry of any judgment therein, each of the Parties to such Reference Proceeding shall bear equal shares of the fees charged and costs incurred by the Referee in connection with performing the services provided in this Section. The compensation of the Referee shall not exceed the prevailing rate for like services. 10.3 Severability. If a court of competent jurisdiction finds or rules that any provision of this Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so adjudged shall remain in full force and effect. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement. 10.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement. 10.5 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of and shall apply to and bind the successors and assigns of the parties. 10.6 Use of Recycled Products. OpTerra ES shall prepare and submit all reports, written studies and other printed material on recycled paper to the extent it is available at equal or less cost than virgin paper. 10.7 Conflict of Interest. OpTerra ES may serve other clients, but none whose activities within the corporate limits of City or whose business, regardless of location, would place OpTerra ES in a "conflict of interest," as that term is defined in the Political Reform Act, codified at California Government Code Section 81000 et seq. OpTerra ES shall not employ any City official in the Services performed pursuant to this Agreement. No officer or employee of City shall have any financial interest in this Agreement that would violate California Government Code Sections 1090 et seq. The Parties agree that OpTerra ES is not now, nor has it been in the previous twelve (12) months, an employee, agent, appointee, or official of the City. OpTerra ES understands that, if this Agreement is made in violation of Government Code §1090 et seq., the entire Agreement is void and OpTerra ES will not be entitled to any compensation for services performed pursuant to this Agreement, including reimbursement of expenses, and OpTerra ES will be required to reimburse the City for any sums paid to OpTerra ES. OpTerra ES understands that, in addition to the foregoing, it may be subject to criminal prosecution for a violation of Government Code § 1090 and, if applicable, will be disqualified from holding public office in the State of California. 10.8 Contract Administration. This Agreement shall be administered by Justin Lovell ( "Contract Administrator"). All correspondence shall be directed to or through the Contract Administrator or his or her designee. Professional Services Agreement between July 13, 2016 City of South San Francisco and OpTerra Energy Services Page 12 of 14 10.9 Notices. All notices and other communications which are required or may be given under this Agreement shall be in writing and shall be deemed to have been duly given (i) when received if personally delivered; (ii) when received if transmitted by telecopy, if received during normal business hours on a business day (or if not, the next business day after delivery) provided that such facsimile is legible and that at the time such facsimile is sent the sending Party receives written confirmation of receipt; (iii) if sent for next day delivery to a domestic address by recognized overnight delivery service (e.g., Federal Express); and (iv) upon receipt, if sent by certified or registered mail, return receipt requested. In each case notice shall be sent to the respective Parties as follows: OpTerra ES: Emily Douglas Business Development Manager OpTerra Energy Services, Inc. 4020 Moorpark Ave., Suite 100 San Jose, CA 95117 With a copy to: Legal Department OpTerra Energy Services, Inc. 150 East Colorado Boulevard, Suite 360 Pasadena, CA 91105 City: City Clerk City of South San Francisco 400 Grand Avenue South San Francisco, CA 94080 With a copy to: Marian Lee Assistant City Manager City of South San Francisco City Manager's Office 400 Grand Avenue South San Francisco, CA 94080 10.10 Professional Seal. Where applicable in the determination of the contract administrator, the first page of a technical report, first page of design specifications, and each page of construction drawings shall be stamped /sealed and signed by the licensed professional responsible for the report/design preparation. The stamp /seal shall be in a block entitled "Seal and Signature of Registered Professional with report/design responsibility," as in the following example. Professional Services Agreement between July 13, 2016 City of South San Francisco and OpTerra Energy Services Page 13 of 14 Seal and Signature of Registered Professional with report/design responsibility. 10.11 Integration. This Agreement, including all Exhibits attached hereto, and incorporated herein, represents the entire and integrated agreement between City and OpTerra ES and supersedes all prior negotiations, representations, or agreements, either written or oral pertaining to the matters herein. 10.12 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement. 10.13 Construction. The headings in this Agreement are for the purpose of reference only and shall not limit or otherwise affect any of the terms of this Agreement. The parties have had an equal opportunity to participate in the drafting of this Agreement; therefor any construction as against the drafting party shall not apply to this Agreement. The Parties have executed this Agreement as of the Effective Date. CITY OF SOUTH SAN FRANCISCO OPTERRA ENERGY SERVICES, INC. City Manager NAME: TITLE: Attest: Krista Martinelli, City Clerk Approved as to Form: City Attorney 2668656.1 Professional Services Agreement between July 13, 2016 City of South San Francisco and OpTerra Energy Services Page 14 of 14 EXHIBIT A SCOPE OF SERVICES The Scope of Services is in two parts: 1. Completion of an energy assessment that will include an analysis of each proposed energy conservation or generation measure with projected energy and cost savings and project cost. Similar services for water usage (irrigation and indoor) will also be performed. OpTerra ES will then present a proposal ( "Recommendations ") that includes recommended projects, options for financing, and projected annual cash -flow analysis, and also will propose terms for the Energy Services Contract. In addition, OpTerra ES will provide City with a written report ( "IGA Report ") which, at a minimum, will include: (1) project goals, (2) energy summary matrix, (3) a list of facilities and impacted equipment, (4) general project scope of work (which shall include project descriptions and locations, but will not include detailed design, engineering or construction plans), and (5) a project financial pro forma. PROJECT GOALS The Scope of Services contemplated herein shall seek to accomplish the following goals: I. Gas and Electric 1. Reduce energy consumption (gas and electric) and the utility costs pertaining to energy consumption. 2. Replace or upgrade old and inefficient systems to the extent that such replacements /upgrades help reduce energy consumption and related costs. 3. Recommend investments that generate electricity to offset expenditures pertaining to energy consumption, such as solar panels. 4. Recommend investment in metering and energy storage (micro grid) capabilities that provides usage data on an interval or real time basis, and, as appropriate, allows for shifting of electric and gas usage to more cost effective times. 5. Enhance personnel training with regard to energy efficiency and maintenance of energy efficient systems II. Water. 1. Reduce water usage 2. Replace or upgrade old and inefficient systems to the extent that such replacements /upgrades help reduce usage and related costs. 3. Recommend investments to generate savings and/or help better monitor usage. Professional Services Agreement between July 13, 2016 City of South San Francisco and OpTerra ES - Exhibit B Page 1 of 1 EXHIBIT B INSURANCE CERTIFICATES Professional Services Agreement between July 13, 2016 City of South San Francisco and OpTerra ES - Exhibit B Page 2 of 2