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
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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
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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.
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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
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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:
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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
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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.
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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,
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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.
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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.
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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
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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
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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
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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.
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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.
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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
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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.
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EXHIBIT B
INSURANCE CERTIFICATES
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