HomeMy WebLinkAboutAgenda Report - April 18, 2012 C-12AGENDA ITEM Co 10L
A� CITY OF LODI
COUNCIL COMMUNICATION
im
AGENDA TITLE: Adopt Resolution Authorizing the City Manager co Execute a Consultant Services
Agreement with the Northern California Power Agency Regarding crmOrbit, Inc.,
and Allocate Public Benefit Program Funds ($27,000)
MEETING DATE: April 18, 2012
PREPARED BY: Electric Utility Director
RECOMMENDEDACTION: Adopt a resolution authorizing the City Managerto Execute a
consultant services agreement with the Northern California Power
Agency regarding crmOrbit, Inc., and allocate Public Benefit
Program funds in the amount of $27,000.
BACKGROUND INFORMATION: The Northern California Power Agency (NCPA) has executed an
agreement with crmOrbit, Inc. to provide energy efficiency services
for NCPA members. It will allow residential customers to apply for
their energy efficiency utility rebates via the utility's web site and create a database for reporting
purposes. This will streamline and expedite rebate processing for both the customer and City staff. In
addition, this new database will serve as the platform for Lodi Electric Utility's annual state -required filing
of energy savings achieved and rebate funds provided to the City's electric utility customer -owners. The
total cost of this service is $105,000 and covers the ensuing five fiscal years.
Staff is requestingthat the City Council authorize the City Managerto execute a consultant services
agreement with NCPA, which will administer a contract with crmOrbit, Inc. for this new energy efficiency
service and allocate funds for the current fiscal year in the amount of $27,000.
FISCAL IMPACT: $107,000 over five years, $27,000 this fiscal year.
FUNDING: Included in FY2011/12 Budget Account No. 164605.7323.
PREPARED BY:
EK/RSUIst
Deputy City Manager/Internal Services Director
Elizabeth A. Kirkley
Electric Utility Director
Rob Lechner, Manager, Customer Service & Programs
APPROVED:
Konradt Bartlam, City Manager
ACPA
NORTHERN CWFONIIA POWER ASENOY
This NCPA Legislative and Regulatory Member Services Agreement for the Energy Efficiency
Database Program ("Agreement") is made by and behAeen the NORTHERN CALIFORNIA
PO►V\ERAGENCY ('NCPA'), a joint public powers agency with offices located at 651 Comrnerce
Drive, Roseville, Califomia and certain of its members ('Contracting Members') (together
sometimes referred to herein individually as "Party' and collectively as "Parties") as of
, 2012 (the "Effective Date") in Roseville, Califomia.
Section 1. RECITALS
This Agreement is entered into based on the following facts, among others:
1.1 NCPA is a public agency crested by a joint powers agreerrient established under
Califomia law for the purpose of assisting its members in the efficient use of their common n powers.
1.2 Contracting Members are engaged in, among other things, transmitting and
distributing electric power within their respective cooperative limits. Contracting Members are also
members of NCPA Contracting Members desire that NCPA pride Contracting Members with the
L&R Member Services described in this Agreement.
1.3 Article 111, section 3 of the "Amended and Restated Northem California Power
Agency Joint Powers Agreement" ("the JPA) entitled "Powers and Functions" provides that,
"[n]one of the debts, liabilities or obligations of NCPA shall be the debts, liabilities or obligations of
any of the members of NCPA unless assumed in a particular rase by resolution of the governing
body of the member to be charged." Notwithstanding the foregoing, Amide V, section 1 of the JPA
entitled "General Provisions" pro ides that "[t]he governing Commission of NCPA is authorized to
procure public liability and other insurance as it deems advisable to protect NCPA and each of the
parties hereto, dnarging the cost thereof to the operating costs of NCPA"
1.4 NCPA and each of its Members intend to enter into a Legislative and Regulatory
Program Agreement ("the L&RPA'). The L&RPA is intended to provide for certain legislative and
regulatory ("L R) services which will be provided to, and paid for by, all the K/lembers by NCPA as
"core servioes" of the JPA and to provide that other L&R Member Services may be provided to,
and paid for by, less than all the Members by NCPA from time to time upon the request of a subset
of Members. This Agreement provides for such non-core L&R Member Services to be provided to
the Contracting Members who constitute such a subset, and is intended to be consistent with the
planned L&RPA, but the validity of this Agreement is not contingent upon later adoption of the
L&RPA
1.5 Contracting Members desire to secure L&R Member Services under this
Agreement in a manner that balances its interests and the interests of other non -participating
NC PA Members with the ongoing financial viability and professional responsibilities of NC:PA
Accordingly, Contracting Members desire to secure L&R Member Services under this Agreement
by accepting a limited insurance based recourse against NCPA, with the option of procuring
additional insurance at Contracting Members' sole expense, thereby insuring that NC PAwill
substantially limit its risk for the provision of such L&R Member Services, and which, in tum,
allocates risks bads to the Contracting Menters in the event NC PA is riot adequately insured.
NOW 11-Ef2EFORE, NC PA and Contracting Members agree as follaws:
Section 2 DEFINITIONS
Wherever used in this Agreement with initial capitalization, these tem -is shall have the
following meanings as applicable, whether in the singular or plural:
2.1 "Business Day' rrreans any day except a Saturday, Sunday, or a Federal Reserve
Bank holiday. A Business Day shall open at 8:010 a.m and dose at 5:010 p.m Pacific time.
2.2 "Contracting Member" or "Contracting Members" means one or all of the NC PA
Members which have executed this Agreement.
2.3 "Good Utility Practioe" shall mean any of the practices, methods and acts engaged
in or approved by a significant portion of the electric utility industry during the relevant time period,
or any of the practices, rrrethods and acts which, in the exercise of reasonable judgment in light of
the facts known at the time the decision was made, could have been expected to a000rrplish the
desired result of the lowest reasonable cost consistent with good business practices, reliability,
safety and expedition. Good Utility Practice is riot intended to be limited to the optimum practice,
method or act to the exclusion of all others, but rather to be acceptable practices, methods, or acts
generally accepted in the region and consistently adhered to by the electric utility industry.
2.4 "NC PA Members" or "Members" shall riman the signatories to the JPA or those
agencies which have executed an Associate Member Agreement with NC PA
2.5 "Participation Percentage" shall mean the relative share of costs under this
Agreement to be paid by a particular Contracting Member pursuant to Exhibit B relative to the
share of costs to be paid by the other Contracting Members.
2.6 "Stranded Costs" shall mean all costs incurred by NC PA in providing Services to
Contracting Members under this Agreemmnt that could not reasonably be avoided by NC PA from
the date it receives a written Notice of Termination. Such costs may include, but riot be limited to,
salary and employrrent costs, rent, utilities, or contracts incurred to provide Services under this
Agreerrent, as well as any termination costs incurred to arriOrbit.
2.7 " Urmntrollable Force" shall mean any act of God, labor disturbance, act of the
public enemy, war, insurrection, riot, fire, storrR flood, earthquake, explosion, any curtailment,
order, regulation or restriction imposed by governmental, military or lawfully established dvilian
authorities or any other cause beyond the reasonable control of the Party claiming Uncontrollable
Force which could not be avoided through the exercise of Good Utility Practice.
3.1 This Agreement is entered into by the Parties in order for NC:PA to pride L&R
Merriber- Services, consisting of orxb and cornputing to the marketplace (also known as Software
as Sermoe or SaaS software) energy efficiency database sermoes to each of the Contracting
Members. NC PA shall provide such L&R Member Services, along with appropriate software
licensing and maintenance, through a contract between NC PA and a third party provider, aniOrbit,
Inc. as further described in Exhibit A hereto (" L&R Member Servioes" ).
It is the intent of this Agreement that Contracting Members each authorize and direct NC PAto
enter into such third party agreement. Each Contracting Member agrees to pay to NC PA its
Participation Percentage share of the costs NC PA incurs in so doing, including all administrative
costs incurred by NC PA including its staff time and attomeys' fees, and agrees to conduct itself
consistent with the obligations undertaken by NC PA in such amnOrbit agreement.
3.2 The following are the Authorized Representatives of the parties for contract
administration purposes under this Agreement:
Northern California Power Agery-y.
Scott Tomashefsky
Regulatory Affairs Manager
Northern California Pbwer Agency
651 Commerce Drive
Roseville, CA 95678
(916) 781-4291 / 782-2191 FAX
rrailto: soott.tornashefskyCaancpa.00m
NC PNs Authorized Representative is sorretin-es refenad to as the NC PA Project Manager
in this Agreerr>ent.
111 � . • � --
-• 1-5971 m
ILI�al-1- •- , -•Oil
- r •
-r. •. • •
Terry 0-owley
-f[Director
401 Grove
Healdsburg, CA 95448
8
(707)431-3340
•• •1• x• • •r.
Lodi:
Dizabeth Nrldey
Utility Director
1331 South Ham Lane
Lodi, CA 95242
(209) 333828
Itremble(a�Iodielec tric.00m
•• Ng : -
Truckee Donner
• .•: •
General .•a
11570 Donner Pass Road
Thickee, CA 96161
1) 587-3896
-• ZI I• .•. • I� •• • • •
No Authorized Representative is authorized to amend any provision of this Agreement except in
accordance with Section 12.16. Any Party may amend its Authorized Representative or contact
information by providing written notice of the changes to each other Party.
3.3 Standard of Performance. NCPAwill perform and or oversee, as applicable, the
L&R Member Services using that level of skill and attention reasonably required to complete the
L&R Member Services in a competent and timely manner. Contracting Members shall, however,
have direct responsibility for interfacing with amOrbit as provided in Exhibit A Contracting
Members will perform such tasks as necessary to implement the energy efficiency programs with
that level of skill and attention reasonably required to complete and operate them in a competent
and timely manner.
3.4 Assignment of Personnel. NCPA shall assign only competent personnel to perform
L&R Member Services pursuant to this Agreement. Contracting Members approve the assignment
of cmO bit as the third party provider of services.
4.1 Authorization to Perform Services. NCPA is not authorized to perform any initial
L&R Member Services, or incur any costs whatsoever, under the terms of this Agreement until its
receipt of a written resolution and/or other appropriate/applicable authorization from each of the
Contracting Members' governing bodies confirming Contracting Members' authority to enter into
this Agreement and confirming that the Contracting Merrrbers have allocated funds for and
approved contract payments to NCPA under this Agreement.
4.2 Term The term of this Agreement shall begin on the Effective Date and shall end
on the date that the crmnOrbit consultant services agreement terminates.
4.3 Early Terination and Stranded Costs.
4.3.1 This Agreement may be terminated by NCPA as to all Contracting Members upon
ninety (90) days written notice ("Notice of Termination") to Cantracting Members.
4.3.2 This Agreement may be terminated by all Contracting Members, upon ninety (90) days
written notice to NCPA ('Notice of Termination"). To be effective, the Notice of Termination crust
be executed by each Contracting Member.
Provided, however, that if so terminated, Contracting Members shall each pay NCPAtheir
Participation Percentage share of all fees and costs required under this Agreement through the
effective date of the Notice of Termination plus all Stranded Costs, if any. Upon pays -at of the
above amounts, no Party shall have any further obligations under- this Agreement except as
otherwise set forth in Section 5.7 regarding the survival of defense and indemnity obligations.
4.3.3 This Agreement may be terminated by any given Contracting Member, upon ninety (90)
days written notice ("Notice of Ter inaticd) to all other Parties.
Provided, however that the terminating Contracting Member shall pay NCPA its Participation
Percentage share of the fees and costs required under this Agreement through the effective date of
the Notice of Termination plus all Stranded Costs, if any. Upon payment of the above amounts, the
terminating Contracting Member shall have no any further obligations under this Agreement except
as otherwise set forth in Section 5.7 regarding the survival of defense and indemnity obligations.
The participation percentages of all remaining ra-kemrinating Contracting Members shall be
proportionately adjusted to account for the \MthdrdM of the terminating Contracting Nlember(s).
Section & INDEIMITY AND INSURANCE
5.1 Limitation of NCPA's Liabil
5.1.1 Except as provided in this section 5. 1, NCPA shall not at any time be
liable for any injury or damage occurring to a Contracting Member or any other person (including
crmiOrbit) or property from any cause whatsoever arising out of this Agreement.
5.1.2 The provisions of section 5. 1.1 shall riot apply where the injury or damage
occurring to a Contracting Member is caused by the active negligenoe of NCPA or of any
employee, agent or contractor of NCPA (including cxmDrbit), and provided that any liability under
this subsection is limited to the extent of the actual coverage and coverage limits of the NCPA
insurance policies described in this Section 5.
5.1.3 Contracting Members Liable for NCPA's Deductibles and or Self -Insured
Retentions. Notwithstanding Section 5.1.2 above, the Contracting Members agree to reimburse
NCPA, in a timely manner, for all deductibles ardor self-insured retentions payable for any claim,
liability or damage arising out of this Agreement.
KbTber Services Agreernent behwen -.•- • of •
NORTHERN CALIFORNIA POV\ER AGENCY and
•• -
5.2 Indemnification of NCPA Except as specified in Section 5.1.2 above, each
Contracting Member shall, at its sale cost and expense, indermify and hold harmless NCPA and all
associated, affiliated, allied, member and subsidiary entities of NCPA, now existing or hereinafter
created, and their respective officers, boards, commissions, e7ployees, agents, attomeys, and
contractor (hereinafter referred to as "Indemnitees"), from and against any and all liability,
obligation, damages, penalties, claims, liens, costs, charges, losses and expenses (including,
without limitation, reasonable fees and expenses of attomeys, expert vwitnesses and consultants),
Mich may be imposed upon, incurred by or be asserted against the Inxlemnitees arising out of this
Agreement, including any daims by aTnOrbit.
5.3 Defense of Indemnitees. In the event any action or proceeding shall be brought
against the Indemnitees by reason of any matter for Mich the Indemnitees are indemnified
hereunder, each Contracting Member shall, upon reasonable prior written notice from any of the
Indemnitees, at that Contracting Member's sole cost and expense, resist and defend the same with
legal counsel mutually selected by Indemnitee and the Contracting Member, unless n-tAual
selection of counsel is expressly prohibited by an applicable insurance policy; provided however,
that neither Indemnitee nor that Contracting Member shall admit liability in any such matter or on
behalf of the other without express written consent, which consent shall not be unreasonably
withheld or delayed, nor enter into any compromise or settlement of any daim for which
Indemnitees are indemnified hereunder without prior express written consent. A Contracting
Member's duty to defend shall begin upon receipt of a written notice identifyimxg with specificity the
allegations that give rise to this duty to defend.
Any Contracting Member required to defend and indemnify pursuant to this section may, in
those circumstances in which it is not wholly at fault, seek equitable contribution from each of the
other Contracting Members.
5.4 Notice. The Parties shall give each other prompt notice of the maldrig of any daim
or the corm'mencement of any action, suit or other proceeding covered by the provisions of this
Section 5.
5.5 Insurance. During the term of the Agreemment and prior to beginning any work
under this Agreement, NCPA shall maintain, or cause to be maintained, in full force and effect, and
at its sole cost and expense, the types and limits of liability insurance as are annually approved by
the governing Commission of NCPA The types and limits of liability insurance that are applicable
to this Agreement are evidenced in policy surnnades, which are attached hereto as Exhibit C.
NCPAwarrants and represents that the types of liability insurance and coverage limits shown in
Exhibit C are in full force and effect and shall remain so during the term of this Agreement unless
NCPA gives prior written notification (of not less than thirty (30) days) of modification, cancellation
or rescission of such coverage.
5.6 Contracting Members' AdTaMedgment of Option to Secure Additional Insurance.
The Contracting Members adTo Hedge that there are limitations on NCPA's liability to the
Contracting Members under this Section 5 and that each individual Contracting Member may need
NORTHERN CALIFORNIA PCIV\ER AGENCY and
•• -
to purchase additional insurance of its awn to cover the additional risks and the potential additional
liabilities it is assuming under this Agreement. Contracting Members each agree that it will cause,
with respect to any additional insurance it obtains or which is otherwise available to the Contracting
Member, its insurers to issue an endorsement pro\idirig a waiver of subrogation rights as to
Indemnitees.
5.7 Survival of Obligations. The limitation of liability, defense and indemnity obligations
of Section 5 shall survive the termination of this Agreement.
• •• •c . • • - - •c - •�, a•c c• x• • .r• T- •c
NCPA and Contracting Members ad<no ledge and agree that compensation paid by
Contracting Members to NC PA under this Agreement is based upon NC PA's estimated costs of
providing the L&R Member Services required hereunder, including salaries and benefits of
employees and subcontractors of NC PA, if any. Consequently, the parties further agree that
compensation hereunder is intended to include the costs of contributions to any pensions and/or
annuities to which NCPA and its employees, agents, and subcontractors may be eligible.
Contracting Members therefore have no responsibility for such contributions beyond compensation
required under this Agreement.
Section 7. BIWNG AND PAYMENT
7.1 Invoices. NC PA shall submit invoices to each Contracting Member during the term
of this Agreement, based on the respective Participation Percentage of each for L&R Member
Services performed and reimbursable costs incurred prior to the invoice date. Such invoices may,
in NC PA's discretion, be combined with NC PA's monthly Al Resources &II sent to all NC PA
Members.
7.2 Payment. Contracting Member shall make payments, based on invoices received
in accordance with the schedule in Exhibit B, for L&R Member Services satisfactorily perfom-ed,
and for authorized reimbursable costs incurred. Cat -acting Member shall have thirty (30) days
from the date of the invoice to pay NC PA, or such other time as is specified in an Al Resources Bill
if the invoices for L&R Services is combined with the Al Resources Bill.
Payments shall be remitted directly to:
Norther Cal ifomia Pb\wAgency
651 Commerce Drive
Roseville, California 95678
AM: Accounts Receivable
11-71-1 AWei W11 -Alt IWA
Except for an " Unax*dlable Forge" as described in Section 9 hereof, any amount due and
payable but not paid by a Contracting Member within thirty (30) days following the date of the
invoice shall bear interest at the per annum prime rate (or reference rate) of the Bank of America
NT & SA, then in effect, plus two (20/6) percent per annum computed on a daily basis until paid.
NCPA WWI mail all invoices within twenty-four (24) hours of the invoice date thereon.
The postmark date on the envelope containing payment by check shall be used to determine
timeliness of payment, except that payments received later than seven (7) days after the due date
shall be declared late without regard to postmark date. An invoice coming due on a day which is
not a Business Day shall be due on the next following Business Day.
7.3 Billing Dispute. If all or any portion of a bill is disputed by a Contracting Member,
the entire amount of the bill shall be paid when due, and NCPA's Authorized Representative shall
be concurrently provided written notice of the disputed amount and the basis for the dispute.
NCPA shall reimburse any amount determined to have been incorrectly gilled, within ten (10) days
after such determination.
7.4 Total Payrrient. Contracting Members shall pay for the L&R Member Services to be
rendered by NCPA pursuant to this Agreerrient. A Contracting Member shall not pay any additional
sum for any expense or cost whatsoever incurred by NCPA in renclering L&R Member Services
pursuant to this Agreement unless the Agreement has been modified by a properly executed
change order or amendment in accordance with this Agreement.
Contracting Members shall make no payment for any extra, further, or additional service
pursuant to this Agreennent unless the Agreer wt has been modified by a properly executed
change order or amendment in accordance with this Agreement.
In no event shall NCPA submit any invoice for an amount in excess of the maximum amount
of compensation provided above (if any) either for a task or for the entire Agreement, unless the
Agreement is modified prior to the submission of such an invoice by a properly executed change
order or amendment in accordance with this Agreement.
7.5 Hourly Fees. The L&R Services require that NCPA staff perform various tasks as
specified in Exhibit A NCPA may charge Contracting Members for such time at hourly rates which
reimburse NCPA for its costs, including all benefits, for such employees as are used, in a manner
consistent with the L&RPA (if the L&RPA is in force). NCPA shall not charge any overhead beyond
such hourly rates.
7.6 Reimbursable Expenses. Expenses riot specified in the Exhibits as being the
responsibility of the Contracting Members are not chargeable to Contracting KbTibers.
7.7 Payment of Taxes. NCPA is solely responsible for the payment of employment
taxes incurred under this Agreerrrent and any similar federal or state taxes.
KbTber Services Agreernent behwen -.•- • of •
NORTHERN CALIFORNIA PCIV\ER AGENCY and
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7.8 Payment upon Termination. In the event that one or more Contracting Members or
NCPA terminates this Agreement pursuant to Section 4, the terminating Contracting Member or
Members shall compensate the NCPA for all outstanding costs and reimbursable expenses
incurred for work satisfactorily completed as of the date of written notice of termination, in addition
to Stranded Costs applicable to that terminating Contracting Merriber and any early termination
costs imposed by crmOrbit as provided in Section 4. NCPA shall maintain adequate logs and
timesheets in order to verify costs incurred to that date.
7.9 Authorization to Perform L&R Member Services. NCPA is riot authorized to
perform any L&R Member Services or incur any costs whatsoever under the terms of this
Agreernent until receipt of authorization from each of the Contracting Members' Authorized
Representatives following receipt of the required approvals under the temps of this Agreement.
Section & STATUS OF NCPA; FACILITIES AND EQUIPIVEW; CONTRIBUTIONS
8.1 Independent Contractor. At all times during the term of this Agreement, NCPA shall
be an int contractor and shall not be an employee of Contracting Members. Contracting
Members shall have the right to control NCPA only insofar as the results of NCPA's L&R Member
Services rendered pursuant to this Agreement and assignment of personnel pursuant to Section
3.4; however, otherwise Contracting Members shall not have the right to control the means by
Mich NCPA accomplishes L&R Member Services rendered pursuant to this Agreement.
Notwithstanding any other agency, state, local or federal policy, rule, regulation, law, or ordinance
to the contrary, NCPA and any of its employees, agents, and subcontractors providing L&R
KbTiber Services under this Agreement shall not qualify for or become entitled to, and hereby
agree to waive any and all claims to, any compensation, benefit, or any incident of employment by
any Contracting Membff, including but not limited to eligibility to enroll in the California Public
Employees Retirement System (PERS) as an employee of any Contracting KbTiber and
entitlement to any contribution to be paid by any Contracting Membff for employer contributions
and/or employee contributions for PERS benefits.
8.2 Facilities and Equipment. There are no NCPAfacilities and equipment necessary to
perform the L&R Member Services required by this Agreement or provided. All facilities and
equipment will be provided by amOrbit.
8.3 NCPA Contribution to Costs. During the term of this Agreement, NCPA agrees that it
will, from its general L&R Membff Services Program budget, and suli ect to annual appropriation in
the NCPAAnnual Budget by the NCPA Corrmission, contribute thirteen -thousand one hundred
forty-five dollars and twenty-seven cents ($13,145.27) during fiscal year 2011-2012, and thirteen--
thousand
hirteenthousand are hundred forty-five dollars and twenty-seven cents ($13,145.27) in each of the next
five (5) fiscal years (for a total of seventy-eight thousand eight hundred seventy-one dollars and
sixty-three cents ($78,871.63) taAerds the costs of the L&R KbTiber Services provided for by this
Agreement. The Parties agree that the NCPA contribution will be allocated by NCPA solely to, and
NORTHERN CALIFORNIA PCIV\ER AGENCY and
•• -
paid to NCPA by, the Contracting Merribers and not by other NCPA Members.
9.1 Obligations of the Parties, other than those to pay money when due, shall be
excused for so long as and to the extent that failure to perform such obligations is due to an
Uncontrollable Force; provided, however, that if a Party is unable to perform due to an
Uncontrollable Force, such Party shall exercise due diligence to remove such inability with
reasonable dispatch. Nothing contained in this Agreement shall be construed as requiring a Party
to settle any strike, lockout, or labor dispute in which it may be involved, or to accept any permit,
certificate, contract, or any other service agreement or authorization necessary for the perforrnanoe
of this Agreernent which contains terms and conditions which a Party determines in its good faith
judgment are unduly burdensome or otherwise unacceptable.
9.2 Each Party shall notify the others promptly, by telephone to the other Parties'
operating personnel and Authorized Representatives identified in Section 3.2, upon becoming
aware of any Uncontrollable Force which may adversely affect the perfo mance under this
Agreement. A Party shall additionally provide written notice in accordance with Section 12.8 to the
other Parties within twenty-four (24) hours after becoming aware of an Uncontrollable Force. Each
Party shall notify the others prorrptly, when an Woontrollable Force has been remedied or no
longer exists.
Section 10. LEGAL REQUREM NTS
10.1 Goveming Law. The laws of the State of California shall govern this Agreement,
without regard for the choice of law doctrine.
10.2 Compliance with Applicable Laws. NCPA shall oomply with all laws applicable to
the perfonmmanoe of the L&R Member Services hereunder.
10.3 Other Governmental Regulations. To the extent that this Agreement may be
funded by fiscal assistance from another govemnTa t entity, NCPA and any subcontractors shall
comply with all applicable rules and regulations to which a Contracting Member is bound by the
terms of such fiscal assistance program
10.4 Licenses and Permits. NCPA represents and warrants to Contracting Members
that NCPA and its employees, agents, and any subcontractors have all licenses, permits,
qualifications, and approvals of whatsoever nature that is legally required to practice their
respective professions. NCPA represents and warrants to Contracting Members that NCPA 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.
10.5 Nondiscrimination and Equal Opportunity. NCPAshall not discriminate, on the
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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 NCPA under this Agreement. NCPA 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 NCPA thereby.
NCPA shall include the provisions of this Subsection in its subcontract with cr miOrbit approved
by this Agreement, and in any other subcontract it may enter into.
Section 11. KEEPING AND STATUS OF RECORDS.
11.1 Records Created as Part of NCPA's Performance. Al reports, data, maps, models,
charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or
any other documents or materials, in electronic or any other form, that NCPA prepares or obtains
pursuant to this Agreement and that relate to the matters covered hereunder shall be the property
of the specific Contracting Member for whom it was prepared (or the joint property of the
Contracting Members if prepared for all of them). NCPA hereby agrees to deliver those documents
to the respective Contracting Members upon tern ination of the Agreement. It is understood and
agreed that the documents and other materials, including but riot limited to those described above,
prepared pursuant to this Agreement are prepared specifically for the Contracting Members and
are not necessarily suitable for any future or other use or for use by third parties.
Contracting Members and NCPA agree that, until final approval by the Contracting KbTbers,
all data, plans, specifications, reports and other documents are confidential and will not be
released to third parties without prior written consent of the Contracting Members (or the specific
Contracting Member for whom prepared) and NCPA except as may otherwise be required by
applicable law.
11.2 NCPA's Books and Records. NCPA shall maintain any and all ledgers, books of
account, invoices, vouchers, canceled checks, and other records or documents evidencing or
relating to charges for L&R KbTber Services or expenditures and disbursermnents charged to a
Contracting Member under this Agreermnent for a minimum of three (3) years, or for any longer
period required by law, from the date of final payment to NCPA to this Agreement.
11.3 Inspection and Audit of Records. Any records or documents that Section 12.2 of
this Agreement requires NCPA to maintain shall be made available for inspection, audit, and/or
copying at any time during regular business hours, upon oral or written request of any Contracting
Member. Under California Govemment Code Section 8546.7, if the amount of public funds
expended under this Agreement exceeds ten thousand dollars ($10,000.00), this Agreement shall
be subject to the examination and audit of the State Auditor, at the request of any Contracting
Member or as part of any audit of the Contracting Member, for a period of three (3) years after final
KbTber Senooes Agreernant behwen -.•- 12 of •
NORTHERN CALIFORNIA PC1V\ER AGENCY and
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payment under the Agreement.
11.4 Confidential Information and Disclosure. During the term of this Agreement, any
Party ("Disclosing Party') may disclose confidential, proprietary or trade secret information (the
"Information"), to another Party (Receiving Party'). All such Information made available in a
tangible medium of expression (sudor as, without limitation, on paper or by means of magnetic
tapes, magnetic disks or other computer media) shall be marked in a prominent location to indicate
that it is the confidential, proprietary and trade secret information of Disclosing Party at the time of
disclosure to Receiving Party. Receiving Party shall hold Disclosing Partys Information in
confidence and shall take all reasonable steps to prevent any unauthorized possession, use,
copying, transfer or disclosure of such Information. Reoeiving Party shall not attempt to reverse
engineer or in any manner create any product or inforiation which is similar in appearance to or
based on the Information provided by Disclosing Party. Receiving Party shall not disclose
Disclosing Partys Information to any person other than Receiving Partys employees, agents,
contractors and subcontractors who have a need to know in connection with this Agreement.
Receiving Partys confidentiality obligations hereunder shall not apply to any potion
of Disclosing Partys Information which:
(a) Has become a matter of public knowledge other than through an
act or omission of Receiving Party;
(b) Has been made known to Receiving Party by a third party in
acoordance with such third partys legal rights without any restriction on disclosure;
(c) Was in the possession of Receiving Party prior to the disclosure
of such Information by Disclosing Party and was not acquired directly or indirectly from the
other party or any person or entity in a relationship of trust and confidence with the other
party with respect to such I nformation;
(d) Receiving Party is required by lawto disclose; or
(e) Has been independently doped by Receiving P84 from
information not defined as "Information" in this Agreement, as evidenced by Receiving
Partys written records.
Receiving Party shall return or destroy Disclosing Partys Information (including all
copies thereof) to Disclosing Party promptly upon the earliest of any termination of this Agreement
or the Disclosing Partys written request. Notwithstanding the foregoing, Receiving Party may
retain one copy of such Information solely for archival purposes, subs ect to the confidentiality
provisions of this Agreement. The Parties understand that each Party is a public entity and is
subs ect to the laws (including the California Public Records Act) that may compel one Party to
disclose information about the other's business.
IWA
Page 13 of 62
12.1 Attorneys' Fees. If a Party to this Agreement brings any action, including an action
for declaratory relief, 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. The court may set such fees in the same action or in a separate action brought for that
purpose.
12.2 Venue. In the event that any Party brings any action against another arising under
this Agreement, the Parties agree that trial of such action shall be vested exclusively in the state
courts of California in the County of Placer, or in the United States District Court for the Eastern
District of California.
12.3 Sev�bility. If any provision of this Agreerrant shall be determined by a court of
competent jurisdiction to be invalid, void or unenforceable, or if any provision of this Agreement is
rendered invalid or unenforceable by federal or state statute or regulation, but the remaining
portions of the Agreement can be enforced without failure of material consideration to any Party,
then the remaining provisions shall continue in full force and effect. To that end, this Agreement is
declared to be severable. Provided, however, that in the event any provision is declared to be non -
severable and invalid, void or unenforceable, any Party may teminate this Agreement upon ten
(10) days written notice given within five (5) days of receipt of notice of final entry of judgment.
12.4 No Implied Waiver of Breach. The waiver of any breach da specific provision of
this Agreement does not constitute a waiver of any other breach of that term or any other term of
this Agreement.
12.5 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.
12.6 Use of Recyded Products. NCPA shall endeavor to prepare and submit all repots,
written studies and other printed material on recycled paper to the extent it is available at equal or
less cost than virgin paper.
12.7 Conflict of Interest. NCPA shall not employ any Contracting Member official or
employee in the work perfomed pursuant to this Agreement. No officer or employee of a
Contracting Member shall have any financial interest in this Agreement that would violate California
Government Code Sections 1090 et seq.
12.8 Notices. Unless this Agreen-al requires otherwise, any notice, demand or request
provided for in this Agreement, or served, given or made shall become effective when delivered in
person, or sent by registered or certified first class mail, to the persons specified below.
Northern California Pb\wAgency.
Jane Qrrincione
Assistant General Manager of Legislative & Regulatory Affairs
Northern Cal ifomia Power Agency
651 Commerce Drive
Roseville, CA 95678
-r. •. • •
Terry •• -
-f[Director
401 Grove
Healdsburg, CA 95448
8
(707)431-3340
•• •1• x• • •r.
Lodi:
Rob Lechner
1331 South Ham Lane
Lodi, CA 95242
(209) 333-6828
rlechner aaodielectric.com
11 • ' . r.
' i- •31•• r.
•• N -
Merrever it is required, permitted, or desired in this Agreement that written notice or demand be
given by any Party to any other Party, such notice or demand may be either personally served or
sent by United States Mail, or facsimile. Notice shall be deemed to have been given when
personally served, when deposited in the United States Mail, certified or registered with United
States first class postage prepaid and properly addressed, or when transmitted by facsimile or
electronic mail. Provided however, that notices delivered by facsimile or electronic mail shall only
be effective if delivered during regular business hours on a Business Day, or else shall be deemed
delivered on the next Business Day.
Any Party may amend its address for notice by providing written notice of the revised address to all
other Parties.
12.9 Integration; Inoorporation. This Agreement, including all the Exhibits attached
hereto, represents the entire and integrated agreement between Contracting Member and NCPA
relating to the suli ect matter of this Agreement, and supersedes all prior negotiations,
representations, or agreements, either written or oral.
12.10 Dispute Resolution. If any dispute arises behmm the Parties that cannot be
settled after engaging in good faith negotiations, Contracting Members and NCPA agree to resolve
the dispute in aocordanoe with the following:
12.10.1 Each Party shall designate a senior management or execrative level
representative to negotiate any dispute;
12.10.2 The representatives shall attempt, through good faith negotiations, to
resolve the dispute by any Trans within their authority.
12.10.3 If the issue remains unresolved after one hundred and twenty (120) days
of good faith negotiations, despite having used their best efforts to do so, either Party may pursue
whatever other remedies may be available to it.
U R:
-
12.10.4 This infomnal resolution process is not intended to nor- shall be construed
to change the time periods for filing a claim or action specified by Government Code § 900, et seq.
12.11 Other Agreements. This Agreement is not intended to modify or change any other
agreement belmeen any of the Parties, individually or collectively.
12.12 Counterparts. This Agreement may be executed in multiple counterparts, each of
Mich shall be an original and all of which together shall constitute one agreement.
12.13 Obligations Several—Step Up Obligations; No Joint Venture.
12.13.1 The duties, obligations and liabilities of the Contracting Members are
intended, in the first instance, to be several and riot joint or collective. Each Ca*acting Member
shall be individually and severally liable for its awn obligations under this Agreement.
Notwithstanding the foregoing, and to protect the Members of NCPAwho are not Parties to
this Agreement from any exposure to costs or liability as a consequence of this Agreement, to the
extent that any Contracting Member defaults in its obligations to pay its Participation Percentage of
the costs of priding the L&R Member Services or other obligations under this Agreement, then
the costs for each non -defaulting Contacting Member shall be automatically increased for the
remaining term of this Agreement on a pre -rata basis with those of the other nor> -defaulting
Contracting Members sufficient to satisfy such obligations of the Defaulting Contracting Member,
consistent with each Participant's Participation Percentage.
12.13.2 Nothing contained in this Agreement shall be construed to crate an
association, trust, partnership or joint venture or to impose a trust or partnership duty, obligation or
liability on or with regard to the Parties.
12.14 Effect of Section Headings. Section headings and subheadings appearing in this
Agreement are inserted for convenience only and shall not be oonstrued as interpretation of text.
12.15 Authority of Signatories. The signatories hereby represent that they have been
appropriately authorized to execute this Agreement on behalf of the Party for whom they sign.
12.16 Amendments. It is understood and agreed by the Parties that any NCPA
Commission approved update to the then current NCPA Annual Budget rates and charges related
to L&R Member Services to be performed under this Agreement is deemed an approved
amendment to this Agreement. Except for the preceding, or for either designation of Authorized
Representatives pursuant to Section 3.2 or persons to receive notice pursuant to section 12.8, the
Parties may amend this Agreement only by a writing signed by all the Parties following each
Partys receipt of written resolution(authorization from their governing bodies, which
resolutions/authorizations shall be condition precedents to any amendments of this Agreement and
shall be attached as Exhibits to this Agreement.
KbTber Services Agreement behwen Page 17 of 62
NORTHERN CALIFORNIA POV\ER AGENCY and
•• -
12.17 Exhibits. This Agreerrient includes the Vowing exhibits which are incorporated in
this Agreement by reference:
A Scope of Services A,1 amOrbit consultant services agreement including
licensing K/laster Agreernent and TenT s of Use
• •o • 'a •- .•-3 RX&OF i I .S ro • LTA M •-
C. NCPA Surrmanes of Current Liability Insurance
In the event of any conflict between the provisions of this Agreement and those of any exhibit
to this Agreement, the terms of this Agreement shall govern.
IN WITNESS V+EREOF, the Parties have executed this Agreement as of the Effective Date.
Northern California Power Agency
Assistant Secretary of the Corr fission
•• Ng : -
CONTRACTING MEMBERS:
CITY OF ALAMEDA
By:
Its:
Approved as to form:
CITY OF BIGGS
By:
Its:
Approved as to form:
City Attorney City Attorney
CITY OF HEALDSBURG CITY OF LODI ATTEST:
By: By: Konradt Bartlam By: Randi Johl
Its: Its: City Manager Its: City Clerk
Approved as to form: Approved as to form:
City Attorney
City Attorney,
CITY OF LOMPOC PLUMAS-SIERRA RURAL ELECTRIC
COOPERATIVE
By: By:
Approved as to form:
City Attorney
TRUCKEE DONNER PUBLIC UTILITY
DISTRICT
By:
Its:
Approved as to form:
General Counsel
Member Services Agreement between Page 19 of 62
NORTHERN CALIFORNIA POWERAGENCY and
CONTRACTING MEMBERS
General Counsel
NCPA shall provide the follonring L&R Member Services on behalf of Contracting KbTbers:
NCPAwill enter into a consultant services agreement ("CSN') Mich includes a licensing and
maintenance agreement ("Master Agreement") with third party provider aTnOrbit ("Contractor")
on behalf of Contracting Member in substantially the form attached to the Agreerrent as Exhibit
A,1.. Contracting Menters, by approving the Agreement, approve the CSA and Master
Agreement and direct NCPA to enter into them Contracting Members agree to comply with the
temps of such CSA. Costs incurred by NCPA as a consequence of entering into the CSA will
be paid to NCPA by Contracting Members in proportion to their Participation Percentages as
shown in Exhibit B.
In the event of any conflict or differences in scope of work behAeen the provisions of this Exhibit A
and those of Exhibits A,1 which area part of this Exhibit Ay the provisions of Exhibit A,1 (as
approved by amCrbit) shall govem.
2. In general, included in the CSA (and the Master Agreement which is apart of it) are:
During initial implementation, Contractor will configure up to twenty (20) energy efficiency
incentive programs, some of which will be shared by the Contracting Members as specified below,
and configure up to five (5) different business/woMow processes to be shared by the Contracting
KbTbers.
Of the initial set of twenty (20) energy efficiency incentive programs, six (6) will be template
(generic) programs to be shared by the Contracting Members and the remaining fourteen (14) will
be utility -specific programs with two (2) for each of the seven (7) Contracting Members (City of
Alameda, City of Biggs, City of Healdsburg, City of Lodi, City of Lompoc, Plumes -Sierra REC, and
Truckee Domer PUD).
Contractor will train Contracting Member Authorized Representatives to configure additional
programs and create templates for program types that can be accessed by all authorized users to
allow for rapid deployrrient of new programs with similar workficws.
Contractor will license all programs and processes to NCPA Each Contracting Member's
Authorized Representative shall be a "User" under the temps of the Master Agreerre nt entitled to
utilize the programs provided. In the event a Contracting Member desires a different or additional
persons to be a User, that Contracting Member shall be responsible for any additional costs in
doing so it posed by Contractor.
Page 21 of 62
3. The fdlowing provides a general list of deliverables to be provided under the CSA and the
ongoing license and maintenance support. NC:PA is authorized to determine in its reasonable
discretion and on behalf of all the Contracting Members which reports, dashboards, programs or
other deliverables will be provided by crmOrbit, provided that NCPA consult with the
Contracting Members in rreidng such determinations:
Deliverable 1: Develop Project PYan
Contractor shall conduct an initial planning meeting with the NCPA Project Manager and
representatives of the Contracting Members. During this session, Contractor will fill in a
communications plan identifying key stakeholders, concerns, and communications; approach.
Contractor shall provide an updated midlevel project plan based upon the exarriple provided in the
RFP response document. The project plan shall incorporate key payment milestones and
deliverable dates for each of the remaining thirteen (13) deliverables.
Deliverable 1 due date: This deliverable will be submitted for approval by NCPA not later than four
(4) weeks after the Effective Date.
Deliverable 2 Develop Energy Effiaency 1ibasurress
Contractor will work with NCPA Project Manager and Contracting Member representatives to
develop a variety of prescriptive energy efficiency Treasures, which permit the measurement or
calculation of the amount of energy being saved. NCPA shall prepare Treasures and deemed
savings✓inoentive parameters in a spreadsheet template provided by Contractor.
If requested, Contractor will also configure up to five (5) fonTula-based prescriptive measure types,
in which users provide additional choices✓inputs to generate calculated savings, and will train
NCPAs Project Manager to set up additional such measures as needed by NCPA or the
Contracting Members in the future. Contractor will also set up any additional or further such
Treasures as may be requested on a time and materials basis.
Deliverable 3 Set loo General Program Parameters
Contractor shall work with NCPA Project Manager and Contracting Merriber Authorized
Representatives to set up general program parameters for the initial Ca*acting Mer1xr energy
efficiency inoeritive programs that will be deployed.
Deliverable 4. Develop Program & IVeasure fequimvds
Contractor shall work with NCPA Project Manager and Contracting Neon er Authorized
Representatives to enter prograrrflevel and measure -level requirements and develop survey
questions to support the energy efficiency incentive programs of the Contracting Members.
D q ivemble 5 Create Reports and Dal boards
Contractor will work with NCPA Project Manager and Contracting Member Authorized
Representatives to create up to ten (10) repots and ten (10) dashboards for the Caitracting
Members' energy efficiency incentive programs. Contractor will create five (5) initial reports and
M (5) initial dashboards, to be shared by the Contracting Members. Fdlowing completion of the
initial reports and dashboards, Contractor will provide on-line training to Contracting Members'
Authorized Representatives and to NCPA staff on how to crate additional reports and
dashboards. Upon completion of the an -line training, NC PA shall work with Cantractor to
implement five (5) additional repots and five additional dashboards to be shared by the
Contracting Members.
Dr?li emble 6 Create Carrmnic ation Terrp/ates
Contractor will work with NCPA Project Manager and Contracting Member Authorized
Representatives to create up to four (4) e-mail or mail -merge oomrrunication templates in Microsoft
Word to be shared by the Contracting KAen-bers. These may be used, for example, to create
customer oomrdtment letters, application acceptance/decline letters and missing items letter.
NCPA Project Manager shall complete on-line training provided by Contractor in how to crate
communication templates, and work with Contractor to implement two (2) of the above-mentioned
communication templates, in order to facilitate NCPA self-sufficiency in such tasks.
WZ.1 CWORM ., F O ..t�:1kC*: Fft-i
Contractor shall create one (1) example customer proposal template, for use by the Contracting
Members in dealing with their utility customers. Additional customer proposal templates may be
developed on a time and materials basis by Contractor upon request by a particular Contracting
Member. If additional customer proposal templates are developed, only those Contracting
Members who agree to share the costs will be provided the templates.
Dr?Gemble 8 Develop CustomerData lrrportlLj date Ten#ate
As part of implementation of the Contracting Members' energy efficiency incentive programs,
Contractor shall develop a standard template, for use by all Contracting Members, for customer
data import and update. Contractor shall implement up to ten (10) custom fields (as directed by
NCPA) to be shared by the Contracting Members to support Contracting Member- needs, and shall
also develop up to six (6) page layouts for the Contact and Account objects. To facilitate data entry
effidency. Contractor shall enable tracking of multiple addresses per customer.
Deliverable 9 Payment review and exqoort
As part of implementation of the Contracting Members' energy efficiency incentive programs,
Contractor shall develop a standard template for payment file e)Wl/import as described below.
Individual Contracting Members shall use this forrriat or may request that additional templates be
developed on a time and materials basis by Contractor for those Contracting Mmters requesting
it, at the cost of those requesting Contracting Members.
• Incentive payments shall be processed through the Contracting Member financial systems.
• Users may view a list of Project records (or proxy Work Order records) which are ready for
payment, based on stage or other filter criteria. User may assign a Batch number (text) to
one or more of these records in the list to initiate the payment process and update the
payment status. As a best practice, the batch number may contain the date when the
batch was generated. Aworkfiow rule may be used to automatically update the Stage
(status) or the associated Project or Work Order record.
• Users will print or export these records through a standard repot which shall be crested
for this purpose, and which may be exported as an Excel or CS\/file. Typically, this
payment report will include the Project and/or V\brkOrder unique identifier, the customer
Account number, batch number, payment amount, Payee name and details, and payment
address.
• Payments will be made at a Project or Work Order level, and shall consolidate incentives
for the applicable retrofits.
Allowed users may import data from a payment results file. This file will consist of record IDs for
the associated project and/or Work Order, along with additional payment details (e.g., payment I D,
check #, check date, amount) to substantiate that payment has been made. A workflow rule may
be set up to update the Stage (status) of the associated Project or Work Order records (e.g.,
"Payment SerfP').
Deliverable is Address user Profiles and Secuniy Issues
Contractor will work with NCPA and Contracting Merribers to identify user profiles, territories and
roles (as necessary) and permissions to meet security requirements, and shall configure the
energyOrbitTM solution to reflect this design. In particular, Contractor shall establish a
Territory/Role structure to ensure that Contracting Members can see their own infomnation (but not
those of other Contracting Members), and to allow NCPA authorized individuals to access
consolidated infaYriation from all Contracting Members.
As part of administrator training referenced above, Contractor shall introduce NCPA's system
administrator to the fundarrientals of User Profile administration and system administrators are
encouraged to complete the available on-line tutorials on this topic provided by Salesforce.com
NC RXs system administrator, and other users with a System Administrator Profile, may control
user IDs, activatefinactivate users, and reset user passvwrds. Users may also reset their am
passwords after answaing security questions, and a newone-tirre password will be sent to their
specified user email address. NC RA may specify passAord strength settings, and password
expiration policies. Each participating Member shall maintain separate and secure program
infametion within the database. Contracting Nbn•bers will riot have aocess to each other's data
Deliverable 11: Installation and D9ployment
Contractor shall perform an Initial Installation of the ere MO bitTM solution, following establishment
of NC PXs Force oorn accounts. License fees for use of the energyOrbitTM solution shall
commence following this Initial Installation.
Contractor shall develop and test additions and extensions to the core erwgyOrbitTM solution in a
separate development and test environment. Throughout the Project, Contractor may deploy this
new functionality to the NC PA production environment. Contractor shall endeavor to provide 24-
hour
4hour advance notice of these updates, which shall typically be scheduled for Fridays. Contractor
shall notify NC PA Project Manager of any such updates, including where practical, a shot
summary of changes. HaAever, in some instances, emergency maintenance may require
installation with less notice.
Deliverable 12. Develop Custom Functionality
modelWth provided RFP. This nwy include astorn-progranTring, arid may riotbe modifiable
Contractor will develop water program traddng fields, supporting programs for Contracting Members
that have water savings, based on specifications and guidance from the City of Roseville, if available.
This effort will followthe same structure as other programs for energy savings, and shall be
implemented by adding additional fields to track water quantities saved as part of measure, work
order and project totals.
5M - • r I -•c- • r •
Deliverable 13 Provide Training
Page 25 of 62
Contractor will prepare and deliver two 2 -hour' train -the -trainer" sessions to NCPA staff, which aW
be delivered via web, as well as functional training on modules along the way.
Contractor will provide an onsite group training with all Contracting Member leads, and the
following:
• Follow up vA biriar--based two (2) hour refresher training with individual utility leads
• Two (2) hour webinar Training for Each Contracting Member Utility as part of the
program pilot deployment
• ApproAr ately six (6) hours of formal system administrator trainings for NC PA
technical personnel, covering key topics of interest, including custom object structure,
a istomizatian, reporting, profiles and security or similar matters.
Contractor will prepare training materials, as well as a mid-level `bookbcoK' (estimated to consist of
approArnately thirty (30) pages), to describe key activities for setting up a program starting a
project, entering retrofits(measures, and documenting key workflow and approval processes.
Contractor will invite NC:PA Project Manager to watch (via web meetings) or participate in certain
configuration activities to provide on-the-job training in use and maintenance of the energyOrbitTM
solution. NCPAWII then provide supporting training of Contracting Member personnel consisting
of a reasonable number of hours of group training, not to exceed ten (10) hours.
Contractor will prepare a set of frequently asked questions and solution for the Tier 1 support desk,
and provide an additional two (2) hours of remote help desk training in basic support.
DgGerable 14: Arcing License and Wrterwm Fees
Contractor agrees to provide all necessary sof fare licenses, and technical support as part of the
license and maintenance fees. The primary purpose of this deliverable is to address problems,
potential "bugs" and advanced capability questions related to energyOrbitTm. To that end, the
following level of support will be provided:
Best efforts will be made to respond to specific requests within one (1) business day,
including an estimate for problem resolution. It is recognized that some items may require
more than one business day to resolve.
Ability for Contracting Members to submit support requests electronically twenty-four (24)
hours per day, seven (7) days per week, and speak with live staff during standard business
hours (gam -bpm Central Time, excluding weekend and holidays). Contracting Members'
inquiries will first be reviewed by NCPA, which will provide Tier 1 support. NCPA WWI
pHoritze and escalate such inquiries to Contractor for Tier 2 support as needed, in NCPA's
discretion and subject to the limits noted below.
General product upgrades, those general enhancements to the eraMObtTM system
Mich are offered at no additional cost to customers, will be provided to NCPA and the
Contracting Members during the term of this Agreement. It is understood that some new
AW01AW" Oil
Vr
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functions may require additional configuration in order to take advantage of the
capabilities, which configuration shall be provided by Contractor.
• Up to five (5) priority bug fixes per month —where energyOrbitTM fails to operate according
to agreed upon specifications in a way which interferes with the ability of a Contracting
Merrier to enter and process incentives.
• Up to forty (40) technical support requests during the first thirty (30) days that the product
is operational.
• Up to ten (10) additional technical support requests incidents per month after the first
month, to provide Contracting Members additional help or support (for example, creating a
new program workflow, or guidance to create a special type of report).
• Monthly report summaries of case activities, along with a summary of the resolution will be
provided by Contractor to NC:PA each month during the term of the Agreement, by the
tenth (10"h) day of the following month.
The following assumptions will be considered based on the scope of the project and deliverables
identified above. Any changes to these assumptions may result in a scope adjustment to fees
and/or implementation timeline.
• NCPA Project Manager will coordinate input from Contracting Members and serve as an
authorized approver- for deliverables and decisions related to system setup and
configuration.
• NCPA be responsible for providing training to Contracting Members beyond the initial
deployment identified above.
• NC PA and Contracting Members will be responsible for preparing import data according to
templates provided by Contractor, and will be responsible for the quality of such provided
information.
• Contractor will riot be importing historic project data as part of this scope of work
Individual utilities ray arrange to import historic data under separate arrangement.
• NC PA Project Manager will provide content for efficiency measures. Contractor will
provide a template for preparing the initial list of measures, which will be imported into
energyorbitTM
• Contractor will import Contracting Member specific data extracted from current traddng
spreadsheets and systems, to populate the templates designed in conjunction with
Contractor's work under this agreement.
• energyOrbitTM will only be used to administer and support programs for NC PA and
Contracting Mernbers. It may not be licensed or operated as a service bureau for other
entities, including affiliates of either NCPAor Contracting Members.
Page 27 of 62
Exhibit Art
FORM OF CONSULTING SERVICES AGREEIVIENT B WEEN NCPA AND CRIVIORBIT, INC.
M Ike, I =0FOLP ;�' M
This agreement for consulting services ("Agreement') is made by and beN een the NORTHERN CALIFORNIA
POWER AGENCY, a public joint powers agencywith offices located at 651 Commerce Drive, Roseville, CA, 95678-
6420 ("Agency') and amnOrbit a California Corporation with offices located at 2693 Blucher Valley Road, Sebastopol,
CA 94572 ("Consultant") (together sometimes referred to as the "Parties") as of 2012, (the "Effective
Date") in Roseville, California.
Section 1. SERVICES. Subject to the temps and conditions set forth in this Agreement, Consultant shall provide to
Agency the services described in the Scope of Work attached as Exhibit A at the time and place and in the manner
specified therein. In addition, Consultant shall provide to Agency the software licensing and maintenance and support
ser\Aoes specified in the licensing Master Agreement and Terms of Use attached as Exhibit Ar1. In the event of a
conflict in or inconsistency bet%en the terms of this Agreement and Exhibit A or A-1, this Agreement shall prevail.
1.1 Term of Services. The term of this Agreement shall begin on the Effective Date and shall end on
June 30, 2017, when Consultant completes the work described in Exhibit A and Ar1, unless the
term of the Agreement is otherwise terminated or modified, as provided for in Section 8. The time
provided to Consultant to complete the services required by this Agreement shall not affect the
Agency's right to terminate the Agreement, as provided for in Section 8.
1.2 Standard of Perforrhiance. Consultant shall perform all services required pursuant to this
Agreement in the manner and according to the standards observed by a conpetent practitioner of
the profession in which Consultant is engaged in the geographical area in which Consultant
practices its profession. Consultant shall prepare all Wuxk products required by this Agreement in a
professional manner and shall oonform to the standards of quality norrTally observed by a person
practicing in Consultant's profession.
1.3 Assignment of Personnel. Consultant shall assign only competent personnel to perform services
pursuant to this Agreement. In the event that Agency, in its sole discretion, at arty time during the
term of this Agreement, desires the reassignment of any such persons, Consultant shall,
immediately upon receiving notice from Agency of such desire of Agency, reassign such person or
persons.
1.4 Time. Conssultant shall devote such time to the performance of services pursuant to this
Agreeno t as may be reasonably necessary to meet the standard of perfbr romance provided in
Section 1.1 above and to satisfy Consultant's obligations hereunder.
1.5 Contracting Menmbeis and Member Services AgserYrerrt Consultant acl"Aedges that
Agency is undertaking this Agreerr ent on behalf of certain of its memtmers, the cities of Alamieda,
Biggs, Healdsburg, Lodi, and Lompoc the Rurmnas'Siema Rural Electric Cooperative; and the
Truckee Donner Public Utility District Qcintiy the "Contracting Members"), pursuant to an
agreemient bet&een the Contracting Members and the Agency (the "Member Services
Agreement'). Pusuant to the Member Services Agreemient, which Consultant has reviewed, and
this Agreemient, Consultant will be responsible for directly interfacing With representatives of the
Contracting Members in addition to those of the Agency.
The Contracting Members are express third party beneficiaries of this Agreement, and are
permitted Users of the software licenses granted hereby consistent with the tern -s of this
Agreement.
Section 2 CONDENSATION. Agency hereby agrees to pay Consultant an an -cunt NOT TO EXCEED FOUR
HUNDRED THRTY EIGHT THOUSAND EIGHT HUNDRED SEVENnY ONE DOLLARS AND SIXTY THREE CENTS
($438,871.63) for or all work set forth in Exhibit A and Exhibit Ar1, pursuant to the Consultant's fee schedule which is
attached hereto and incorporated as Exhibit B and all reimbursable expenses incurred in performing the work. In the
event of a conflict betwen this Agreement and Consultant's proposal regarding the amount of compensation, this
Agreement shall prevail. Agency shall pay Consultant for services rendered pursuant to this Agreement at the time
and in the manner set forth herein. The payrrrents specfied below shall be the only payments from Agency to
Camsultant for services rendered pursuant to this Agreement. Consultant shall submt all invoices to Agency in the
manner specified herein. Except as specifically authorized by Agency, Consultant shall not bill Agency for duplicate
services performed by more than one person.
Consultant and Agency aclTaMedge and agree that compensation paid by Agency to Consultant under this
Agreement is based upon Consultant's estimated costs of providing the services required hereunder, including salaries
and benefits of employees and subConsultants of Consultant. Consequently, the Parties further agree that
compensation hereunder is intended to include the costs of contributions to any pensions ardor annuities to which
Consultant and its employees, agents, and subConsultants may be eligible. Agency therefore has no responsibility for
such contributions beyond compensation required under this Agreement.
21 Invoices. Consultant shall submit invoices, not more often than once a month during the term of
this Agreement, based on the cost for services performed and reimbursable costs incurred prior to
the imdoe date. Invoices shall contain the following inforrriation:
■ Serial identifications of progress bills; i.e., Progress Bill No. 1 for the first invoice, etc.;
■ The beginning and ending dates of the billing period;
■ ATask or Deliverable Summary containing the original contract amount, the amount of
prior billings, the total due this period, the balance available under the Agreement, and
the percentage of completion of each Deliverable identified in the Scope of WbrK
• At Agencys option, for each work item in each Deliverable, a copy of the applicable time
entries or time sheets shall be submitted showing the name of the person doing the work,
the hours spent by each person, a brief description of the work, and each reimbursable
expense;
■ The Consultant's signature.
rar'.079"""WrIT 4 70770" 71 me
Northern California Pier Agency
651 Commerce Drive
Roseville, California 95678
Attn: Accounts Payable
22 Monthly ftmient. Agency shall make payrnentsacoording to the schedule outlined in Table 1 of
Exhibit B, based on invoices received, for services satisfactorily performed, and for authorized
reimbursable costs incurred. Agency shall have thirty (30) days from the receipt of an invoice that
complies with all of the requirements above to pay Consultant.
23 Final Payrnerrt. Agency shall make the final payment listed in Table 1 of Exhibit B (30) days after
submittal to Agency of a final invoice, if all services required have been satisfactorily performed.
24 Total Payment. Agency shall pay for the services to be rendered by Consultant pursuant to this
Agreement. Agency shall not pay any additional sum for any expense or cost whatsoever incurred
by Consultant in rendering services pursuant to this Agreement. Agency shall make no payment
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for any extra, further, or additional service pursuant to this Agreement.
In no event shall Consultant submt any invoice for an amount in excess of the m aAr um amount of
compensation provided above either for a task or for the entire Agreement, unless the Agreement
is modified prior to the submission of such an invoice by a properly executed change order or
amendment.
25 Fees. Fees for w A performed by Consultant shall not exceed the amounts shown on the
following fee schedule attached hereto as Exhibit B.
26 Reimixawble Expenses. Reimbursable expenses are specified in Exhibit B. Expenses not listed
in Exhibit B are not chargeable to Agency. Reimbursable expenses are included in the total
amount of compensation provided under this Agreement that shall not be exceeded.
27 Payrnerrt of Taxes. Consultant is solely responsible for the payment of employment taxes
incurred under this Agreement and any sinilar federal or state taxes.
28 Payment upon Termination. In the event that the Agency or Consultant terminates this
Agreement, the Agency shall compensate the Consultant as provided in Section 9 of Exhibit X41.
29 Authorization to Perform Services. The Consultant is not authorized to perform any servioes or
incur any costs whatsoever under the terms of this Agreement until receipt of authorization from
the Contract Administrator.
Section 3. FACILITIES AND ECiUPNENT. Except as set forth herein, Consultant shall, at its sole cost and expense,
provide all facilities and equipment that may be necessary to perform the servioes required by this Agreerrrent.
Section 4k INSURANCE RECLAREIVENTS. Before beginning any mork under this Agreement, Consultant, at its own
cost and expense, shall procure the types and amounts of insurance listed belowfor the period covered by the
agreement.
4.1 VWricers' Compensation. If Consultant employs any person, Consultant shall maintain Statutory
ftrkers' Compensation Insurance and Employer's Liability Insurance for any and all persons
employed directly or indirectly by Consultant with limits of riot less than ONE MLLION DOLLARS
($1,000,000.00) per accident.
4.2 Commercial General and Automobile Liability Insurance.
UA C rirrrc dal General Insurance. Comitant shall maintain commercial general liability
insurance for the term of this Agream t, including products liability, covering any loss or
liability, including the cost of defense of any action for bodily injury, death, personal injury
and property damage which may arise out of the operations of the consultant. The policy
shall provide a minimum limit of $1,000,000 per occumence/$2,000,000 aggregate.
4`2.2 Automobile Liability. Consultant shall maintain automobile liability insurance for the
term of this Agreement covering any loss of liability, including the cost of defense of any
action, arising from the operation, maintenance or use of any vehicle (symbol 1), whether
or not owned by the Consultant, on or off Agency premises. The policy shall provide a
minimum limit of $1,000,000 per each accident. This insurance shall provide contractual
liability covering all motor vehicles and mobile equipment to the extent coverage may be
excluded fiom genual liability insurance.
4.2.3 General Liability/Umbrella Insurance. The coverage amounts set forth above may be
met by a combination of underlying and umbrella policies so long as in combination the
limits equal or exceed those stated.
4.3 Professional Liability Insurance. None required.
4,4 All Policies Requirements.
4,4.1 Verification of coverage. Prior to beginning any work under this Agreement, Consultant
shall, at the sole option of the Agency, provide Agency with (1) a Certification of
Insurance that demonstrates oompliance with all applicable insurance provisions
contained herein; (2) policy endorsements to the general liability policy adding the
Northern California Pier Agency as an Additional Insured and declaring such insurance
prirnary in regard to work perfonred pursuant to this Agreement; or (3) upon request by
the Agency, complete copies of all policies and/or complete copies of all endorsements
that demonstrate oomplianoe with this Section 4.
4k4,2 Notice of Reduction in or Cancellation of Coverage. An endorsement mist be
attached to all insurance obtained in accordance with this Agreement stating that
coverage shall not be canceled, except after thirty (30) days' prior written notice by
certified rail, return receipt requested, has been given to the Agency. Consultant shall
also provide thirty (30) days' prior notice to the Agency by certified mail of arty impending
reduction in the limits or coverage of any insurance policies that form a part of this
agreement.
4.5 VMw of Subraration. Consultant agrees to v%dve subrogation which any insurer of Consultant
rrey acquire from Consultant by virtue of the payrrcent of arty lass. Consultant agrees to obtain arty
endorsement that may be necessary to affect this waiver of subrogation. The Wbrkers'
Compensation policy shall be endorsed Wth a waiver of subrogation in favor of Agency for all work
performed by Consultant, its employees, agents and subConsultants.
Section 5. INDENNRCAT10N AND CONSULTANTS RESPONSIBILITIES.
5.1 Consultant shall to the fullest extent allured by law, with respect to all services perfomned in
connection with this Agreement, indemnify, defend and hold harmless the Agency and its officials,
oornrissioners, officers, emrployees, agents and volunteers, including the Contracting Members
and their officials, officers, employees, agents, and volunteers, from and against any and all claims
that arise out of, pertain to or relate to the negligence, reddessness or willful misconduct of the
Consultant. Consultant will bear all losses, costs, damages, expense and liability of every Idnd,
nature and description that arise out of, pertain to, or relate to such Claims, whether directly or
indirectly (`liabilities"). Such obligations to defend, hold harmless and indemnify the Agency and
Contracting KbTibers shall not apply to the extent that such Liabilities are caused by the sole
negligence, active negligence, or willful misconduct of the Agency or the Contracting KbTibers.
The duty to defend and indermify expressly extends to any claim of infringement upon copyright or
patent relating to the software provided pursuant to this AgreerTient.
The duty of Consultant to indemnify and hold harmless includes the duty to defend as set forth in
Section 2778 of the California Ovil Code. Acceptance by Agency of insurance certificates and
endorsements required under this Agreement does not relieve Consultant from liability under this
indemnification and hold hamiess clause. This indernification and hold hamiess clause shall
apply to any darnages or darns for damages whether or not such insurance policies shall have
been determined to apply. By execution of this Agreement, Consultant admcwiedges and agrees
to the provisions of this Section and that it is a material element of consideration.
Page 31 of 62
In the event that Consultant or any employee, agent, or subConsultant of Consultant 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 enrdlment in PERS as an
employee of Agency, Consultant shall indemnify, defend, and hold harmless Agency for the
payment of any employee and/or employer contributions for PERS benefits on behalf of Consultant
or its employees, agents, or subConsultants, as well as for the payment of any penalties and
interest on such contributions, which would otherwise be the responsibility of Agency.
Section & STATUS OF CONSULTANT.
6.1 Independent Consultant. At all times during the term of this Agreement, Consultant shall be an
independent Consultant and shall not be an employee of Agency. Agency shall have the right to
contrd Consultant only insofar as the results of Consultant's services rendered pursuant to this
Agreement and assignment of personnel pursuant to Subparagraph 1.3; hanever, othenMse
Agency shall not have the right to control the means by which Consultant accomplishes services
rendered pursuant to this Agreement. Notwithstanding any other Agency, state, or federal policy,
rule, regulation, law, or ordinance to the contrary, Consultant and any of its employees, agents,
and subConsultants providing services under this Agreement shall not qualify for or become
entitled to, and hereby agree to waive any and all claims to, any compensation, benefit, or arty
incident of employment by Agency, including but riot limited to eligibility to enroll in the California
Public Errployees Retirement System (PERS) as an employee of Agency and entitlement to any
contribution to be paid by Agency for employer contributions and/or employee contributions for
PERS benefits.
6.2 Consultant Not Anent. Except as Agency may specify in writing, Consultant shall have no
authority, express or implied, to ad on behalf of Agency in any capacity whatsoever as an agent.
Consultant shall have no authority, express or implied, pursuant to this Agreement to Find Agency
to any obligation whatsoever.
Section 7. LEGAL REQURENENTS.
7.1 Goveminn Law. The laws of the State of California shall govern this Agreement.
7.2 Compliance with Applicable Laws. Consultant and any subConsultants shall comply with all
laws applicable to the performance of the work hereunder.
7.3 Other Govemmer" Regulations. To the extent that this Agreement may be funded by fiscal
assistance from another govemmental entity, Consultant and any subConsultants shall comply with
all applicable rules and regulations to which Agency is bound by the terms of such fiscal assistance
program
7.4 Licenses and Permits. Consultant represents and warrants to Agency that Consultant and its
employees, agents, and any subCansultants have all licenses, permits, qualifications, and
approvals of Wiatsoever nature that are legally required to practice their respective professions.
Consultant represents and warrants to Agency that Consultant and its employees, agents, arty
subConsultants shall, at their sole cost and expense, keep in effect at all times during the temp of
this Agreement any licenses, permits, and approvals that are legally required to practice their
respective professions. In addition to the foregoing, Consultant and any subCansrrltants shall
obtain and maintain during the temp of this Agreement valid Business Licenses from Agency.
Consultant represents and warrants to Agency that Consultant has the right to license all the
software being provided to Agency pursuant to this Agreement.
Page 32 of 62
7.5 Nondisainination and Equal Opportunity. In compliance with federal, state and local laws,
Consultant 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, subCansultant, bidder for a
subcontract, or participant in, recipient of, or applicant for any services or programs provided by
Consultant under this Agreement. Consultant shall comply Wth all applicable federal, state, and
local laws, policies, rules, and requirements related to equal opportunity and nondiscrinination 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 Consultant
thereby.
Consultant shall include the provisions of this Subsection in any subcontract approved by the
Contract Administrator or this Agreement.
Section & TFRMNATION AND MODIRCATION
&1 Termination (Reserved).
112 Modification. The Parties may, by mutual written agreement, extend or shorten the end date of
this Agreement beyond that provided for in Subsection 1.1. Ary such modification to this
Agreement, including an adjustment of compensation or reimbursement of costs beyond the
amount specified in Section 2 herein, shall be specified in a signed amendment or exhibit to the
Agreement -
In the event that one or more, but less than all, of the Contracting Members tenrinates the Member
Services Agreement, and such termination reduces funding available to the Agency for this
Agreement, the Parties agree to meet and confer in good faith Wth respect to modification of the
scope of work and price to accommodate such withdrawal.
113 Ammxkr enits. The Parties may amend this Agreement only by a writing signed by all the Parties.
114 Assignment and Suboa7tracting Agency and Consultant recognize and agree that this
Agreement contemplates personal performance by Consultant and is based upon a detem ination
of Consultant's unique professional competence, experienoe, and specialized professional
kna Aedge. IVbrecver, a substantial inducement to Agency for entering into this Agreement mas
and is the personal reputation and oorrpetence of Consultant. Consultant may not assign this
Agreement or ary interest therein vuthout the prior written approval of the Agency.
Notwithstanding the foregoing either party may assign this Agreement without
consent of the other party in connection with a merger, acquisition, corporate
reorganization, or sale of all or substantially all of its assets which does not
involve a direct competitor of the other party. Consultant shall riot subcontract any
portion of the performance oontemplated and provided for herein, other than to the subCansultants
noted in the proposal, Wthout prior written approval of the Agency. Mere written approval is
granted by the Agency, Consultant shall supervise all wrk subcontracted by Consultant in
performing the services; shall be responsible for all work performed by a subConsultant as if
Consultant itself had performed such work; the subcontracting of any work to subCansultants shall
not relieve Consultant from ary of its obligations under this Agreement with respect to the services;
and Consultant is obligated to ensure that arty and all subConsuitants performing any services
shall be fully insured in all respects and to the same extent as set forth under Section 4, to
Agency's satisfaction.
115 Survival. Al obligations arising prior to the termination of this Agreement and all provisions of this
Agreement allocating liability betAeen Agency and Consultant shall survive the termination of this
Agreement.
8.6 Options upon Breach by Consultant. If Consultant materially breaches any of the terms of this
Agreement, and such breach is not cured within 45 days of written notice, Agencys remedies shall
include, but not be limited to, the fdlo rig:
8.6.1 TenA nate the Agreement;
8.6.2 Retain the plans, specifications, drawings, reports, design documents, and any other
wait product prepared by CamItant pursuant to this Agreement;
8.6.3 Consultant to provide an expat of data entered into the era yOrbit platform to Agency
at Consultant's expense;
8.6.4 Retain a different consultant to complete the work described in Exhibit A not finished by
Consultant; or
8.6.4 Cbtain a refund of any pre -paid amounts for services applicable since the date of breach.
8.6.5 Total finaricial remedies for breach by Consultant shall riot exceed the amounts actually
paid to Consultant for the project to date, provided however, that such limitation shall not
apply to claims related to either violation of copyright or negligent disclosure of personally
identifying c ustorrer information.
Section 9. DING AND STATUS OF RECORDS.
9.1 Records Cheated as Part of Consultant's Perform ce. Sulhjecf to the terms of the licensing
agreement entered into concurrently herewith by the Parties (the "Master Use Agreement") all
reports, data, maps, models, charts, studies, surreys, photographs, memorar>da, plans, studies,
specifications, records, files, or any other documents or materials, in electronic or any other form,
that Caisultant prepares or obtains pursuant to this Agreement and that relate to the matters
covered hereunder shall be the property of the Agency. Consultant hereby agrees to deliver those
documents to the Agency upon termination of the Agreement. It is understood and agreed that the
documents and other materials, including but not limited to those described above, prepared
pursuant to this Agreement are prepared specifically for the Agency and are not necessarily
suitable for ary future or other use. Agency and Consultant agree that, until final approval by
Agency, all data, plans, specifications, reports and other documents are oonfidential and will not be
released to third parties without prior written consent of both Parties.
Consultant agrees that the authorized representatives of the Contracting Members shall be entitled
to recognition as Users under the Master Agreement.
9.2 Consultant's Books and Records. Consultant shall medrtain 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 Agency 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 the Consultant to this Agreement.
9.3 Inspection and Audit of Records. Any records or documents that Section 9.2 of this Agreement
requires Consultant to maintain shall be made available for inspection, audit, and/or copying at any
10 •- - 0 MAI I I We"- 0 1 F-11-• NET*
time during regular business hours, upon oral or written request of the Agency. Under California
Government Code Section 8546.7, if the amount of public funds expended under this Agreement
exceeds TEN THOUSAND DOLLARS ($10,000.00), the Agreement shall be sutmject to the
examination and audit of the State Auditor, at the request of Agency or as part of any audit of the
Agency, for a period of three (3) years after final payment under the Agreement.
9.4 Confidential InforTnation and Disdosure. During the term of this Agreement, either party or the
Contracting Members (the "Disclosing Party') may disclose confidential, proprietary or trade secret
information (the "Information"), to the other party (the `Receiving Party'). All such Infomation
made available in a tangible medium of expression (such as, Without limitation, on paper or by
means of magnetic tapes, magnetic disks or other computer media) shall be marked in a prominent
location to indicate that it is the confidential, proprietary and trade secret information of the
Disclosing Party at the time of disclosure to the Receiving Party. The Receiving Party shall hold
the Disclosing Partys Information in oonfidenoe and shall take all reasonable steps to prevent any
unauthorized possession, use, copying, transfer or disclosure of such Information. The Receiving
Party shall not attempt to reverse engineer or in arty manner create any product or information
which is similar in appearance to or used on the Information provided by the Disclosing Party.
The Receiving Party shall not disclose the Disclosing Partys Infomnation to any person other than
those of the Receiving Partys employees, agents, consultants, Consultants and subConsultants
who have a need to know in connection Wth this Agreement.
The Receiving Partys confidentiality obligations hereunder shall not apply to any portion of the
Disclosing Partys Information which:
(a) Has become a matter of public knowledge other than through an act or
omission of the Receiving Party,
(b) Has been made W~ to the Receiving Party by a third party in acoordance
With such third partys legal rights without any restriction on disclosure;
(c) Was in the possession of the Receiving Party prior to the disclosure of such
Information by the Disclosing Party and vias riot aoquired directly or indirectly
from the other party or any person or entity in a relationship of trust and
oonfidence with the other party with respect to such Information;
(d) The Receiving Party is required by law to disclose; or
(e) Has been independently developed by the Receiving Party from information
not defined as "Information" in this Agreement, as evidenced by Receiving
Partys written records.
The Reoeiving Party shall return or destroy the Disclosing Partys Information (including all oopies
thereof) to the Disclosing Party promptly upon the earliest of any termination of this Agreement or
the Disclosing Partys written request. NoWthstainding the foregoing, the Receiving Party may
retain one copy of such Infomation solely for archival purposes, suW to the confidentiality
provisions of this Agreement. Consultant understands that NCPA is a public agency and is suW
to the laws that may oompel it to disclose information about Consultant's business.
10.1 Attomevie Fees. If a party to this Agreement brings any action, including an action for declaratory
relief, to enforoe or interpret the provision of this Agreement, the prevailing party shall be entitled to
reasonable attorneys' fees in addition to ary other relief to which that party may be entitled. The
court may set such fees in the same action or in a separate action brought for that purpose.
10.2 Venue. In the event that either party brings any action against the other under this Ag-eerrient, the
Parties agree that trial of such action shall be vested exclusively in the state oourts of California in
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the County of Racer or in the United States District Court for the Eastern District of California.
Enforcernent of this Agreement is subject to alternative dispute resolution provisions in Section
10.13 of the Agreen-ol and arbitration provisions in Section 15 of Exhibit X1.
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 proivision of this Agreement.
10.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this Agreernent
does riot 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 Recyded Products. Consultant shall endeavor to 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. Consultant may save other clients, but none whose activities within the
corporate limits of Agency or whose business, regardless of location, would place Consultant in a
"conflict of interest," as that tem is defined in the Pditical Reform Art, codified at Califomia
Govellment Code Section 81000 et seq.
Consultant shall not employ any Agency official in the work performed pursuant to this Agreement.
No officer or employee of Agency shall have any financial interest in this Agreerrrent that would
violate California Govemrnent Code Sections 1090 et seq.
Consultant hereby warrants that it is riot now, nor has it been in the previous twelve (12) months,
an employee, agent, appointee, or official of the Agency. If Consultant was an employee, agent,
appointee, or official of the Agency in the previous twelve months, Consultant warrants that it did
not participate in any manner in the forming of this Agreement. Consultant understands that, if this
Agreement is made in violation of Government Code §1090 ef.seq., the entire Agreement is void
and Consultant wall not be entitled to any corrpensation for services perfomned pursuant to this
Ag-eerrient, including reimbursement of expenses, and Consultant vull be required to reimburse the
Agency for ary suns paid to the Consultant. Consultant understands that, in addition to the
foregoing, it may be subject to criminal prosecution for a violation of Gove anent Code § 1090 and,
if applicable, WWI be disqualified from holding public office in the State of California.
10.8 Solicitation. Consultant agrees not to solicit business at any meeting, focus group, or interview
related to this Agreement, either orally or through ugh any written materials.
10.9 Contract Administration. This Agreemrent shall be administered by Jane Orrincione, Assistant
General Manager of Legislative & Regulatory Affairs her designee, who shall act as the Agencys
representative. All correspondence shall be directed to or through the representative.
10.10 Notices. Any written notice to Consultant shall be sent to:
Seth Golub
Moe President Professional Services
2693 Blucher Valley Road
Sebastopol, CA 95472
Any written notioe to Agency shall be sent to:
James H. Pope
General Manager
Northem California Pourer Agency
651 Commerce Drive
Roseville, CA 95678
With a copy to:
Michael F. Dean
General Counsel
Northern California Power Agency
Meyers Nave
555 Capitol Mall, -Lite 1200
Sacramento, CA 95814
10.11 Professional Seal. Where applicable in the determination of the Agency, the first page of a
technical report, first page of design specifications, and each page of constrt tion drawings shall
be starrWsealed and signed by the lioensed professional responsible for the report(dedgn
preparation.
10.12 Inteff4lon; Incorporation. This Agreement, including all the exhibits attached hereto, represents
the entire and integrated agreement beb&een Agency and Consultant and supersedes all prior
negotiations, representations, or agreernents, either written or oral. Al exhibits attached hereto are
inoorporated by referenoe herein. In the event of arty conflict befineen the provisions of any exhibit
and this Agreement, the provisions of this Agreement shall govem.
10.13 Alternative Dispute ReSolution. If arty dispute arises befineen the Parties that cannot be settled
after engaging in good faith negotiations, Agency and Consultant agree to resolve the dispute in
accordance with the following:
10.13.1 Each party shall designate a senior nwagernent or executive level
representative to negotiate any dispute;
10.13.2 The representatives shall attempt, through good faith negotiations, to resolve
the dispute by any means within their authority.
10.13.3 If the issue remains unresolved after fifteen (15) days of good faith
negotiations, the Parties shall attempt to resolve the disagreement by
negotiation befineen legal counsel. If the above process fails, the Parties shall
resolve ary remaining disputes through mediation to expedite the resolulion of
the dispute.
10.13.4 The mediation prooess shall provide for the selection within fifteen
(15) days by Moth Parties of a disinterested third person as
mediator, shall be coni enced within thirty (30) days and shall be
concluded within fifteen (15) days from the w i rnenoer hent of the
mediation.
10.13.5 The Parties shall equally bear the costs of any third party in any alternative
dispute resolution prooess.
Page 37 of 62
10.13.6 The alternative dispute resolution process is a material condition to this
Agreement and must be ediausted as an admnistrative prior to either Party
initiating legal action. This alternative dispute resolution process is not
intended to nor shall be construed to change the time periods for filing a claim
or action specified by Government Code § 900, et. seq.
10.14 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.
The Parties have executed this Agreement as of the date signed by the Agency.
NORTHERN CALIFORNIA POV\ERAGENCY
Date
JANES R POPE, General Manager
Attest:
Assistant Secretary of the Corrmssion
IG.....uc..F-3M, M,W
General Counsel
Date
SETH GOLtJl3, Vice President
�=
This consultant services agreement ("CSA:') between NCPA and aTnOrbit ("Consultant") includes
a licensing and maintenanoe agreement ("Master Agreement") between the same two parties
attached as Exhibit Art. NCPA is also concurrently entering into a Member Services Agreement on
behalf of seven (7) of its men ff agencies who will receive the energy efficiency database
services provided by Consultant ("Contracting Members') and who will be permitted Users under
the tem -s of the license.
This Exhibit A consists of this general description of the Scope of Services, NC PA's Request for
Proposals for Demand Side Management Database dated July 25, 2011 ("RFP"), and Consultant's
Response to Request for Proposals ("Response') both of which are inoorporated herein by this
reference (but are not attached) as well as the Master Agreement in Exhibit Art . Each of the
documents shall be read as a part of a whole, integrated Scope of Servioes. however, in the event
of any conflict, this Exhibit shall govern over the Master Agreement, the RFP and Response, and
the Response shall govern over the RFP.
During initial implementation, Consultant will configure up to twenty (20) energy efficiency incentive
programs, some of which will be shared by the Contracting Members as specified below, and
configure up to five (5) different businessAAaidlow processes to be shared by the Contracting
Members.
Of the initial set of twenty (20) energy efficiency incentive programs, six (6) will be template
(generic) programs to be shared by the Contracting Members and the remaining fourteen (14) will
be utility -specific programs with two (2) for each of the seven (7) Contracting Members (City of
Alameda, City of Biggs, City of Healdsburg, City of Lodi, City of Lompoc, Plumas-Sierra REC, and
Truckee Donner PUD).
Consultant will train Cat -acting Member Authorized Rlepresentatives to configure additional
programs and create templates for program types that can be accessed by all authorized users to
allow for rapid deployment of new programs with similar worldlaws.
Consultant will license all programs and processes to NCPA under the tem -s of the Master
Agreernent. Each Contracting Memiber's Authorized Representative, or other designated staff of
the Contracting Memiber, shall be a "User" under the tem -s of the Master Agreement entitled to
utilize the programs and databases provided.
3. The following provides a general list of deliverables to be provided:
Deliverable 1: Dgvelop Project PYan
Consultant shall conduct an initial planning meeting with the NC PA Project Manager and
representatives of the Contracting Members. During this session, Consultant will fill in a
communications; plan identifying key stakeholders, conoems, and communications approach.
Consultant shall provide an updated midlevel project plan based upon the example prOided in the
RFP response document. The project plan shall incorporate reasonable key payment milestones
and deliverable dates for each of the remaining thirteen (13) deliverables as mutually agreed upon
by NC PA and Consultant.
Deliverable 1 due date: This deliverable will be submitted for approval to NC:PA riot later than four
(4) weeks from the Effective Date.
Deliverable 2 Develop Energy Bfiderxy Alt-asures
Consultant will work with NC PA Project Manager and Contracting Member representatives to
develop a variety of prescriptive energy efficiency measures, which permit the measurement or
calculation of the amount of energy being saved. NCPA shall prepare measures and deemed
savings(inc;entive parameters in a spreadsheet template provided by Consultant.
If needed, Consultant will also oonfigure up to five (5) fom-ula-based prescriptive measure types, in
Mich users provide additional ohoioes/inputs to generate calculated savings, and train NC PAs
Project Manager to set up additional such measures as may be needed in the future. Consultant
Wil also set up additional such measures as requested by NCPA a time and materials basis.
Deliverable 3 Set L4b General Program Parameters
Consultant shall work with NC PA Project Manager and Contracting Member Authorized
Representatives to set up general program parameters for the initial Contracting Member energy
efficiency inoentive programs that will be deployed.
Deliverable 4. Develop Program & IVbasure Requirements
Consultant shall work with NCPA Project Manager and Contracting Member Authorized
Representatives to enter progran-devel and measure -level requirements and develop survey
questions to support the energy efficiency incentive programs of the Contracting Members.
Deliverable 5 Create Reports and Dashboards
Consultant will work with NCPA Project Mariager and Contracting Member Authorized
Representatives to create up to ten (10) reports and ten (10) dashboards for the Contracting
Members' energy efficiency, incentive programs. Consultant will ante five (5) initial reports and
M (5) initial dashboards, to be shared by the Contracting Members. Fdlowing completion of the
initial reports and dashboards, Consultant will provide on-line training to Contracting Members'
Authorized Representatives and to NCPA staff on how to create additional reports and
dashboards. Upon completion of the on-line training, NCPAshall workwith Consultant to
implement five (5) additional reports and five additional dashboards to be shared by the
Contracting Members.
Dq#vemble 6 Create Co mnication Terrp/ates
Consultant will work with NCPA Project Mariager and Contracting Member Authorized
Representatives to create up to four (4) e-mail or mail -merge oom unication templates in Microsoft
Word to be shared by the Contracting KAm-bers. These may be used, for example, to create
customer commitment letters, application acceptance/decline letters and missing items letter.
NCPA Project Manager shall complete on-line training provided by Consultant in how to create
communication templates, and work with Consultant to implement No (2) of the above-mentioned
oomrrunic ation templates, in order to facilitate NCPA self-sufficiency in such tasks.
Deliverable 7.• Customer Proposal Templates
Consultant shall crate one (1) example customer proposal template, for use by the Contracting
KbTbers in dealing with their utility customers. Additional customer proposal templates may be
developed on a time and materials basis by Consultant upon request by a particular Contracting
Merriber. If additional customer proposal templates are developed, only those Contracting
Members who agree to share the costs will be provided the templates.
Deliverable 8 Develop Customer Data ImportlLj date Template
As part of implementation of the Contracting Members' energy effidency incentive programs,
Consultant shall develop a standard template, for use by all Contracting Members, for customer
data import and update. Consultant shall implement up to ten (10) custom fields (as directed by
NCPA) to be shared by the Contracting Members to support Contracting Member needs, and shall
also develop up to six (6) page layouts for the Contact and Account ot:jects. To facilitate data entry
efficiency. Consultant shall enable tracking of multiple addresses per customer.
Deliverable 9 Payment review and export
As part of implementation of the Contracting Members' energy efficiency incentive programs,
Consultant shall develop a standard template for payment file expotlimport as described below.
Individual Contracting KbTbers shall use this fomriat or may request that additional templates be
developed on a time and materials basis by Consultant for those Contracting Members requesting
it, at the cost of those requesting Contracting Members.
• Incentive payments shall be prooessed through the Contracting Members' financial
systems.
• Users may view a list of Project records (or proxy Work Order records) which are ready for
payment, based on stage or other filter criteria. Users may assign a Batch number (te)t) to
one or more of these records in the list to initiate the payment process and update the
payment status. As a best practice, the batch number may contain the date when the
batch was generated. A workflow rule maybe used to automatically update the Stage
(status) or the associated Project or Work Order record.
Users may print or export these records through a standard repot which shall be created
for this purpose, and which may be exported as an Excel or CSV file. Typically, this
payment report will include the Project and/or Work Order unique identifier, the customer
Account number, batch number, payment amount, Payee name and details, and payment
address.
Payments will be made at a Project or Work Order level, and shall consolidate incentives
for the applicable retrofits.
Allowed users may import data from a payment results file. This file will consist of record IDs for
the associated project and/or Work Order, along with additional payment details (e.g., payment ID,
check #, check date, amount) to substantiate that payment has been made. A workflow rule may
be set up to update the Stage (status) of the associated Project or Work Order records (e.g.,
"Poynent Sent").
Deliverable is Address usff Profiles and Secuniy Issues
Consultant will work with NC:PA and Ca*acting Members to identify user profiles, territories and
roles (as necessary) and permissions to meet security requirements, and shall configure the
energyOrbitTM solution to reflect this design. In particular, Consultant shall establish a
Tenitoy/Role structure to ensure that Contracting Members can see their am information (but not
those of other Contracting Members), and to allow NC PA authorized individuals to access
consolidated info iTiation from all Contracting Members.
As part of administrator training referenced above, Consultant shall introduce NCPA's system
administrator to the fundamentals of User Profile administration and system administrators are
encouraged to complete the available on-line tutorials on this topic provided by Salesforce.00m
NCPA's system administrator, and other users with a System Administrator Profile, may control
user IDs, activatefinactivate users, and reset user passwords. Users may also reset their am
passwords after answering security questions, and a newone-time password will be sent to their
- 1• • •• •�. Mrs'! iMPMU••:• 67 -•: • T-41
- • ••
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Deliverable 11: Installation and Dooyment
Consultant shall perform an Initial Installation of the energyONTM solution, following establishment
of NCPA's Force oom accounts. License fees for use of the er gyOrbitTM solution shall
commmoefollowing this Initial Installation.
Consultant shall develop and test additions and extensions to the core erwgyOrbitTM solution in a
separate development and test environment. Throughout the Project, Consultant may deploy this
new functionality to the NCPA production environment. Consultant shall endeavor to provide 24-
hour
4hour advance notice of these updates, which shall typically be scheduled for Fridays. Consultant
shall notify NCPA Project Manager of any such updates, including where practical, a shot
summary of changes. However, in some instances, emergency maintenanoe may require
installation with less notice.
Deliverable 12. Develop Custom Functionality
Consultant shall develop Energy and Environmental Economics (E3) oomplianoe reporting,
consistent with model provided in RFP. This may include c uston-Fprogamring, and may not be
modifiable without assistance of Consultant in the future.
Consultant will develop water program traddng fields, supporting programs for Contracting Members
that ham water savings, based on specifications and guidance from the City of Roseville, if available.
This effort will fdlowthe same structure as other programs for energy savings, and shall be
implemented by adding additional fields to track water quantities saved as part of rrreasure, work
order and project totals.
5M - • r I -•c- • r •
Deliverable 13Provide Training
Consultant will prepare and deliver two 2 -hour' train -the -trainer" sessions to NCPA staff which may
be delivered via web, as well as functional training on modules during all stages of the project.
Consultant will provide an onsite group training with all Contracting Member Authorized
Representatives, and additionally provide the following:
• Follow up webinar-based two (2) hour refresher training with individual Contracting
Member representatives.
Two (2) hour vA binar Training for each Contracting Member as part of the program
pilot deployment.
Appradmately six (6) hours of formal system administrator trainings for NC PA
technical personnel, covering key topics of interest, including custom object structure,
customization, reporting, profiles and security or similar matters.
Consultant will prepare training materials, as well as a mid-level 'bookbooK' (estimated to consist
of appradmately thirty (30) pages), to describe key activities for setting up a program, starting a
project, entering retrofits/rreaisures, and documenting key woMm and approval processes.
Consultant will invite NC:PA Project Manager to watch (via web meetings) or participate in certain
configuration activities to provide on-the-job training in use and maintenance of the energyOrbitTM
solution and provide training sufficient to permit NC:PAto then provide supporting training of
Contracting Member personnel.
Consultant will prepare a set of frequently asked questions and solution for the Tier 1 support desk,
and provide an additional tuw (2) hours of remote help desk training in basic support.
D gGerable 14: Arcing License and Wr tenarice Fees
Consultant agrees to provide technical support as part of the license and maintenance fees. The
primary purpose of this deliverable is to address problems, potential "bugs" and advanced
capability questions related to energyOrbitTm. To that end, the following level of support will be
provided:
Best efforts will be made to respond to specific requests within one (1) business day,
including an estimate for problem resolution. It is recognized that some items may require
more than one business day to resolve.
Ability for Contracting Members to submit support requests electronically twenty-four (24)
hours per day, seven (7) days per week, and speak with live staff during standard business
hours (gam -bpm Central Time, excluding weekend and holidays). Contracting Member
inquiries will be initially reviewed by NC PAwhich will provide Tier 1 support. NC PAWII
prioritize Contracting Member inquiries and refer them to Consultant for Tier 2 support, in
NC PNs discretion and suNect to the limits noted below.
General product upgrades, those general enhancements to the eraMObtTM system
Mich are offered at no additional cost to customers, will be provided to NC PA and the
Contracting Members during the term of this Agreement. It is understood that some new
functions may require additional configuration in order to take advantage of the
capabilities, which configuration shall be provided by Consultant.
Up to five (5) priority bug fixes per month — where eraM OrWTM fails to operate according
to agreed upon specifications in a way which interferes with the ability of a Contracting
ting
KbT be- to enter and process incentives.
AW011WA-4111 Oil
Up to forty (40) technical support requests during the first thirty (30) days that the product
is operational.
Up to ten (10) additional technical support requests incidents per month after the first
month, to provide Contracting Members additional help or support (for example, seating
a new program workflow, or guidance to crate a special type of report).
Monthly report sumhharies of case activities, along with a summary of the resolution will be
provided by Consultant to NCPA each month during the term of the Agreement, by the
tenth (10"h) day of the following month.
The following assumptions will be considered based on the scope of the project and deliverables
identified above. Any changes to these assumptions may result in a scope adjustment to fees
and/or implementation timeline.
• NCPA Project Manager will coordinate input from Contracting Members and serve as an
authorized approver- for deliverables and decisions related to system setup and
configuration.
• NCPA WWI be responsible for providing training to Contracting Members beyond the initial
deployr>nent identified above.
• NCPA and Contracting Members will be responsible for preparing import data according to
templates provided by Consultant, and will be responsible for the quality of such provided
information.
• Consultant will not be importing historic project data as part of this scope of work
Individual utilities may arrange to import historic data under separate arrangement.
• NCPA Project Manager will provide content for efficiency measures. Consuitant will
provide a template for preparing the initial list of measures, which will be imported into
energyd 1% itTM.
• Consultant will import Contracting Member specific data extracted from sarrent tracidng
spreadsheets and systems, to populate the templates designed in conjunction with
Consultant's work under this agreement.
• energyOrbitTM will only be used to administer and support programs for NCPA and
Contracting Members. It may not be licensed or operated as a service bureau for other
entities, including affiliates of either NCPA or Contracting Members.
=o s e 2 54.
-71-1 AWei W11 -Alt IWA
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C,omperrsation for all tasks, induding hourly fees and expenses, amount shall NOT TO EXCEED FOUR HUNDRED
THIRTY-EIGHT THOUSAND EIGHT HUNDRED SEVENTY-ONE DOLLARS AND SIXTY -TWEE CENTS
($438,871.63). The hourly rates and or compensation break down and an estimated amount of expenses is as fdlows:
Pricing Notes:
• Additional consulting beyond the scope of this agreement provided specifically to NCPA
merrib utilities will be provided at needed for in blocks of 30 hours at a $100 per hour,
under a separate agreement beh&een Member and Contractor.
• License Fees shall comrrer-ce upon delivery by Contractor of the included deliverables for
the NCPA initial template programs.
• Any incremental time and materials charges for design of additional scope items shall be
billed within 10 days of the end of the month in which the time was incurred, and payment
shall be due and payable within 30 days of receipt of invoice.
• NCPA shall reimburse Contractor for actual, reasonable travel -related expenses for travel
approved in advanoe by NCPA (at coach rates and IRS mileage reimbursement rates), as
well as approved third -party soMare a as might be required. Al reimbursement
shall be due and payable within 15 days of submission of an itemized expense report with
attached receipts. NCPA's Project Manager may approve, in writing, additional travel
expenses beyond the "not to exceed" amount in an amount riot to exceed fifteen thousand
($15,000) dollars.,,
• NCPA shall riot be responsible for Ca*actor travel to and between Contractor offices,
office space, oommunicatians and incidental expenses of Contractor including telephone,
facsimile, and photocopying charges.
• Payments shall be due at the times and in the amounts shown on Table 1 which is
attached to this Exhibit.
NOTE As a public agency, NCPA shall riot reimburse C wltant for costs in excess of those permitted by
the Internal Revenue Service.
One-time
Annual
Implemmtalion
Recurring
Item
costs
costs
Comments
Consulting and implementation
$83,145.27
Fixed fee
energy0r itTM license,
$69,045.27
Please see below for details, up
su mantenance fees
to 45 users
Customer web Application Portal
$2,100
Non -licensed users can enter
applications on line. Up to 7,000
applications per year, not to
exceed 7,000 active logins.
Totals
$83,145.27
$71,145.27
Pricing Notes:
• Additional consulting beyond the scope of this agreement provided specifically to NCPA
merrib utilities will be provided at needed for in blocks of 30 hours at a $100 per hour,
under a separate agreement beh&een Member and Contractor.
• License Fees shall comrrer-ce upon delivery by Contractor of the included deliverables for
the NCPA initial template programs.
• Any incremental time and materials charges for design of additional scope items shall be
billed within 10 days of the end of the month in which the time was incurred, and payment
shall be due and payable within 30 days of receipt of invoice.
• NCPA shall reimburse Contractor for actual, reasonable travel -related expenses for travel
approved in advanoe by NCPA (at coach rates and IRS mileage reimbursement rates), as
well as approved third -party soMare a as might be required. Al reimbursement
shall be due and payable within 15 days of submission of an itemized expense report with
attached receipts. NCPA's Project Manager may approve, in writing, additional travel
expenses beyond the "not to exceed" amount in an amount riot to exceed fifteen thousand
($15,000) dollars.,,
• NCPA shall riot be responsible for Ca*actor travel to and between Contractor offices,
office space, oommunicatians and incidental expenses of Contractor including telephone,
facsimile, and photocopying charges.
• Payments shall be due at the times and in the amounts shown on Table 1 which is
attached to this Exhibit.
NOTE As a public agency, NCPA shall riot reimburse C wltant for costs in excess of those permitted by
the Internal Revenue Service.
Table 1
Payment Schedule
Table 1.
e/Due date
CAWY
Amount
Desai 'on
Payment #1:
Professional
$29,943.58
Project Implementation
Project mmwcmwt
Services
License fees for development
(Implementation Fee -30%)
energyOrbit
purposes
(Initial License Fee)
Iicerrm4hosting
Date: 30 days after contract begins
Payment #2:
Professional
$16,629.05
Project Implementation
(20% of implementation)
Services
(Configuration of NCPA pilot
program)
Date: 60 days after contract begins
Payment #3:
Professional
$16,629.05
Project Implementation
(20% of implementation)
Services
Delivery of all functional
Date: 90 days after oontract begins
enhanoements
Payment #4:
Professional
$16,629.05
Project Implementation
(20% of implementation)
Services
Deployment of seven member
utility programs
Date: 120 days after oontract begins
Payment #5:
Professional
$8,314.53
Final Sign off- training complete,
(10%of implementation)
Services
etc
Final Signoff
Date: No later than 7/30/2011, or 30
days fdlowing completion of
deliverables, whichever is sooner.
First Year Uoense Fees Beginning
energyOrbit licenses
$73,000
Remaining license fees for first
7/1/2012
/ hosting
year (Up to 45 users)
Annual Uoense Fees Beginning
$71,145.27
Quarterly payments, provided to
7/1/2013
Contiador each September 30,
December 31, March 31, and
June 30.
Adjustments to BMnipLSchedule if Additional NCPA Member Utilities Join the Project
• One time Implementation fee- $20,000
• Per user- fees = $500✓user/year. $750/admin user/year
• License fees = 2% of DSM and water savings ram incentive budget
THIS MASTER AGREEIVIENTAND TERMS OF USE is Exhibit Art to the Comitant Services
Agreement between Northern California Panner Agency (hereinafter called "CLIENT',
"Customer") and cnTOrbit, Inc. ("cnT0rbit') a California corporation, having an office at 2693
Blucher Valley Road, Sebastopol, CA 94572, oollectively "the Parties".
These energyOrbit "EO' Terms of Use ('Terns of Use") govern the provision of the
energyOrbit Application Service by crmOrbit to CLIENT. These Terms of Use, Statements of
Work ("SOON') signed by the Parties, and any polides or other documents expressly
incorporated by reference herein or therein are collectively referred to as the "Agreement". The
Agreement shall be effective as of the date set forth below the Customer signature (the
"Effective Date").
If Customer signs and returns the Agreement and/or SON but does not complete the date of
signature, cnT Orbit may fill in the date of signature with the date it receives the signed SON.
1. Definitions.
"EO Servioe" means the application referred to as energyOrbit which has been
developed by cmOrbit and is available to operate in conjunction with the
Salesforce.conig (SFDC) CRM and/or Force.con-0 Platform Service as a stand-
alone product. Both editions are hosted by SFDC. The EO Service also includes
any EO Service documentation and any other updates, or upgrades to such EO
Service which may be provided by crmOrbit from time to time in connection with
this service.
o "Consultant' means an individual or entity providing services or other assistance to
cmOrbit or CLIENT, as applicable.
y -r. •�� •
o "crmOrbit Content" means the audio, video and visual information, documents,
software, products and services contained in, or made available to CLIENT in the
course of using the EO Service.
o "SFDC' means Salesforce.00m Inc., the third party provider of application and
platform services hosting the EO service in conjunction with the SFDC Service.
o "Foroe.00n-@ platform' means the infrastructure provided by Salesforce.00m
including but not limited to database, user interface, security controls. Fo- the
purpose of definition of the temp "Foroe.00rd', Foroe.00m is synonymous to SEDC
Services.
o "SFDC Servioe" means the application or platform service being provided by
SFDC with which the EO Service interoperates.
o "Start Date" means the date EO Services fees oomrrence for the applicable
organization as indicated in Addendum(s) that are executed in counterparts which,
taken together, shall form one legal instrument of this Agreement.
o "User" means each CLIENT errployee(s) or Consultant(s) who are (i) authorized to
use the EO Service and have been supplied with Credentials by CLIENT (or by
arriOrbit at CLIENTs request).
o "Additional Users" means additional users that are added to the pod of existing
SFDC I ioensees subsequent to oomr enoement of this Agreen-al.
o "Affiliated Organizations" or "Affiliates" means independent contractors, Trade
Allies, Energy Services Companies (ESCOs), energy consultants, govemment
agencies and regulatory regimes with whom CLIENT conducts business and has a
need to share information tracked in the Service.
o "Client' means a utility or other agency that engages in a contractual relationship
with CLIENT, Inc. for the administration, implementation and/or delivery of energy
efficiency program services.
2. Service Provided.
2.1 License. arriOrbit grants CLIENT a license, allowing a limited number of named Users
to use, administer and customize the EO Service for the sole purpose of administering,
managing and traddng energy efficiency and conservation programs on behalf of its
Clients according to terms specified in an attached Exhibit or Statement of Work to this
Agreement. Without limiting the foregoing, CLIENT and its affiliates may not use the
EO services to administer, manage and/or track other clients or energy efficiency
programs except as provided for in a related SOWor Addendum to this Agreement.
2.2 Deployrrent. arriOrbit may provide professional services related to deployrrent of
energyOrbit as specified in an applicable Addendum of Statement of Work to this
Agreement.
2.3 Technical Support. If support is required by CLIENT, crmOrbit will provide support for
the EO Service during the Term via the arriorbit Suppat Services in accordance with
terms specified in applicable SOWor Addendum or Service Level Agmerrent (SLA)
between aTnOrbit and CLIENT.
2.3.1 Unless otherwise specified in an Addendum or Statement of V\brK amOrbit
will provide Tier 2 technical support with an expected 1 business day
response for contracts involving payment of a Licensing Fee. Technical
support requests will be tracked by a formal tracking mechanism (based
on Salesforce or other online trading system). CLIENT shall provide Tier
1 support to its users and Clients.
2.4 Upon support request from CLIENT, cmOrbit will make an initial determination in good
faith as to whether the issue is with the EO Service or the SFDC Service. If the issue is
with the SFDC Service, CLIENT agrees to contact SFDC directly for support for the
SFDC Service.
2.5 Upgrades. cmOrbit shall from time to time in crmOrbit's discretion provide upgrades to
the EO Servioes at no additional charge to CLIENT. These upgrades may require
additional professional servioes to take advantage of certain newfunctionality, and
such professional services are riot included in the upgrade. As a "cloud oomputirxj' or
"softvuare-as-a-service" solution, amOrbit may oeritrally implement certain patches and
bug fixes on behalf of its customers.
2.6 CLIENT may contact crmOrbit to purchase training for the EO Service, which shall be
specified in an applicable Statement of Wak.
2.7 Subcontracting. crmOrbit retains the right to subcontract any or all of the EO Service to
be performed under this Agreement to a qualified subcontractor of crmOrbit's
choosing. In such event, arriOrbit shall remain obligated to CLIENT for the work
subcontracted. arriOrbit shall ensure that such subcontractors shall be bound by
confidentiality agreements substantially similar to those signed by cmObt on behalf
of CLIENT. arriOrbit agrees to notify CLIENT if and when subcontractors are to be
used. CLIENT reserves the right to approve the use of specific subcontractors if there
is a perceived conflict of interest or specific ooncem about the specific subcontractor
selected by =O bit.
Lioerw shall remain responsible for obligations, services and functions perfomhed by
subcontractors to the same extent as if such obligations, services and functions were
performed by Lioensor's employees and for purposes of this Agreement such works
shall be deemed work performed by Licensor. Licensor shall be CLIENTs sole pant
of contact regarding the Services, including with respect to payment.
2.8 Escrow of Source Code.
Immediately following the Acceptance of the initial and subsequently delivered
Software, Licensor, at CLIENTs expense, will provide a copy of the Source Code for
such initial and subsequently delivered Software to a recognized third -party escrow
agent under a duly executed escrow agreement (the "Esa'ow Agreement').
Throughout the term of the License, Licensor shall assure that such escrowed Source
Code reflects the most current version of the Software licensed to CLIENT. Under the
terms of the Escrow Agreement, CLIENT may itself or have designated third -parties
audit the escrowed Source Code for compliance with the terms of this Agreement and
the Escrow Agreement.
2.9 Use of Source Code.
If Licensor fails to provide support for the Softvore in accordance with any
maintenance agreement between the Parties due to insolvency, abandonment of
licensing or supporting the Software as a line of business, or otherwise, (a) CLIENT
may access and use the Software's Source Code, applicable compilers, and other
information and tools necessary to modify, upgrade, improve, or create derivative
works from the Source Code, either directly from Licensor or through the third -party
escrow agent, as necessary for CLI ENT to make continued use of the Software in its
business, which access and use will otherwise be gDmned by the terms of this
Agreement and by the Escrow Agreement, and (b) the Lioense will be deemed to have
been automatically amended to include the right to modify, and to authorize a third-
party
hinparty to modify on CLIENTs behalf, the Source Code as provided herein. CLIENTs
use of the Source Code under the terms of this Section 2.9 shall not constitute a
termination of this Agreement.
3. Order Process. The initial order for the EO Service is set forth in the initial SOW and
or Addendums(s) which references these Terms of Use. Orders for additional licenses
will be made by mutual execution of an additional SO1Nand/or Addendurr(s) and any
such additional license will be provided access to the EO Service in accordance with
terms contained in this Agreement. Any terms and conditions of any purchase orders
or ack c Medgernents that are inconsistent with or in addition to the terms and
conditions of this Agreement and an executed SOVV or Addendum(s) will riot apply.
4, Fees and Payment Terms.
4.1 CLIENT will pay amOrbit the amounts set forth in Exhibit B of the consultant services
agreement between CU ENT and an -Orbit for the EO Service or any other service
specified. All payrrients for EO Services will be due as shown in Exhibit B of the
consultant services agreement.
4.2 Added licenses will be subect to the following: (i) added licenses will be coterminous
with the preexisting Term (ii) or Term as specified in an Addendum to this Agreement.
(iii) crmOrbit reserves the right to increase the price upon reneuol, subject to
negotiation by parties.
4.3 All payment obligations are non -cancelable and all amounts paid are nonrefundable.
CLIENT is responsible for paying for all licensing ordered for the entire Terra Mether
KbTber•a, Agreerrent between -.•- 51 of •
NORTHERN CALIFORNIA PCIV\ER AGENCY and
•• -
or not CLIENT is actively using the EO Service except as otherwise prided in a
Statement of Work or in Section 9 —Term and Termination. A suspension of service
for overdue payment will not constitute a tern ination of the Agreement nor will it
relieve CLI ENT of any of its obligations or liabilities under the Agreement. CLI ENT will
continue to be charged EO Service fees during any period of suspension.
4.4 Payment from CLIENT is due within thirty (30) days from the date of invoice, unless
stated otherwise in related Addenda or Scope of Work documents. CLIENT may be
charged a late fee of 1.5 % per month (or the rreArr um rete allowed by applicable law
if it is less) on any undisputed amount not paid \A hen due. In addition, in the event that
CLIENT is delinquent in the payment of any amounts due to crmOrbit, Orbit, c r Orbit may
suspend access to the EO Service within 10 business days of delinquency, without
advance written notice to CLIENT.
4.5 The fees set forth in the SONand/or Addendum(s) do riot include taxes unless stated
otherwise. Unless CLIENT provides amOrbit with a valid tax exempt certificate on or
before the Effective Date of this the Agreement, CLIENT will pay, and indemnify and
hold crmOrbit hariess for, all applicable sales, use, VAT, excise, import, export,
property, withholding or similar taxes or duties in connection with the provision of the
EO Service to CLIENT by crmOrbit (including any interest or penalties thereon
resulting from CLIENTs failure to pay such taxes or other charges on a timely basis).
CLIENT will notify crmOrbit in writing in the event CLIENT experiences a change in its
tax exempt status during the Term
4.6 CLIENT will pay the License Fees due under this Agreement and under a formula
specified in an applicable SC►W or Addendum Applicable fees shall be due and
payable within 30 days from the beginning of the term in which the licenses will be
used unless otherWse set forth in the applicable SOIW or Addendum CLIENT shall
send a report documenting the Users who will access the system along with pap -at.
crnOrbit shall have a right to audit all relevant records related to computation of
Iioense fees due, at a reasonable agreed -to time, at its own expense, once per
calendar year. Should the results of such audit indicate that crmOrbit is due additional
fees in excess of five percent (5%) of the amounts indicated by CLIENT reports,
CLIENT shall reimburse amOrbit for the additional amount due along with the cost of
the audit and a service charge of four percent (41/o) of any additional amounts due.
5.1 User Administration. The EO Service will be password -protected and only Users who
have properly registered and received a login ID and password ("Credentials") will be
able to access the EO Service. CLIENT represents and warrants that each User that
registers under CLIENTs account is, and during the Term will be an authorized agent
of CLIENT for purposes of this Agreement. CLIENT will be solely responsible for
administering and monitoring the confidentiality and use of the Credentials. Upon the
AW011WA-4111 Oil
Page 52 of 62
termination of employrnent of any User and or access granted to affiliated
organization, CLIENT will immediately terminate access of that individual to the EO
Service. CLIENT shall• (i) notify amnOrbit promptly of any unauthorized use of any
Credentials or any other suspected violation of this Agreement and (ii) not share IDs
and passwords between Mo or more users and (iii) not impersonate another SFDC
Service user or provide false identity information to gain access to or use the EO
Service. This Agreement is not a sale and does riot convey any rights of owner ship in
or related to the EO Service, the SFDC Service or the intellectual property rights
awned by crmOrbit or SFDC. The salesforoe.com name, the salesfo'oe.com logo, and
the product names associated with the Service are trademarks of salesforce.com or
third parties, and no right or license is granted to use them
5.2 Compliance with Laws. CLIENT is responsible for all activity occurring under CLIENT's
User accounts and shall abide by all applicable local, state, national and foreign laws,
treaties and regulations in connection with the use of the EO Service, including those
related to data privacy, international communications and the transmission of technical
or personal data.
5.3 Prohibited Uses. CLIENT miay riot modify, rent, sublease, sublicense, assign, use as a
service bureau, copy, lend, adapt, translate, sell, distribute, derive works from,
deoormpile or reverse engineer the EO Service or any arriOrbit intellectual property,
except as explicitly permitted hereunder. Unless otherwise expressly set forth in an
SON and/or addendums(s), the EO Service is provided solely for the benefit of
CLIENT, and not, by implication or otherwise, to any parent, subsidiary or affiliate of
CLIENT. CLIENT may riot permit access to the EO Service to a competitor of
arriOrbit, except with arriOrbifs prior written consent. In addition, CLIENT may not
access the EO Service for purposes of monitoring its availability, performance or
functionality, or for any other benchmakrig or competitive purposes. CLIENT may use
the EO Service only for CLIENTs business purposes. CLIENT and pre -authorized
Users from organizations affiliated with the CLIENT shall not: (i) store infringing,
obscene, threatening, libelous, or otherwise unlawful or tortious material, including
material in violation of third party privacy rights; (ii) send or stone material containing
soMare viruses, warns, Trojan horses or other hamful computer code, files, scripts,
agents or programs; (iii) interfere with or disrupt the integrity or performance of the
Service or the data oontained therein; or (iv) attempt to gain unauthorized access to
the EO Service or its related systems or networks.
6. Ownership and Corifidertial Information.
6.1 CLIENT Ownership. As behwen CLIENT and amOrbit, CLIENT will retain all right,
title and interest in and to any data, infomatiom or materials provided by CLIENT as
well as all information prooessed by the EO Service regarding individual Users
("CLIENT Data"). CLIENT grants to amnOrbit a non-exclusive license to use, copy,
store, modify and display the CLIENT Data solely to the extent necessary to provide
the EO Servioe to CLIENT. CLIENT, riot omOrbit, shall have sole responsibility for the
accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual
property ownership or right to use of all CLIENT Data, and ormOrbit shall not be
responsible or liable for the deletion, correction, destruction, damage, loss or failure to
store any CLIENT Data.
6.2 aTnOrbit Ownership. aTnOrbit will retain all right, title and interest in and to all
proprietary rights with respect to the EO Servioe together with any and all crmOrbit
Content and other technology that enables the provision of the EO Servioe, any
training materials, product documentation, whitepapers, or deliverables provided by
crmOrbit under the Agreement, and any suggestions, ideas, enhancement requests,
feedback, reommmndations for modifications or improvements to the EO Servioe
provided by CLIENT. Al rights not expressly granted to CLIENT hereunder or as part
of an applicable addendum or stateryBnt of work are reserved by crmOrbit and its
licensors.
6.3 Confidential Information. "Confidential Infomnation" means all infomnation disclosed by
crmOrbit to CLIENT, before or after the Effective Date, and generally not publicly
known. Confidential Information of crmOrbit includes, without limitation, the EO
Servioe, Credentials, materials provided by aTnOrbit, and any and all product
documentation, whitepapers, product guides, data sheets and training materials. The
Agreement, including the temis in the SON, are Confidential Inforrnation. Confidential
Information does not include inforrnation which CLIENT can document: (i) was in the
possession of or known by it without an obligation of confidentiality prior to receipt from
criOrbit, (ii) is or becomes general public knowledge through no fault or acts of
CLIENT, (iii) is or beoorries lawfully available to CLIENT from a third party without an
obligation of oonfidentiality, or (iv) is independently developed by CLI ENT without use
of any Confidential Information. CLIENT will only use the Confidential Information to
exercise its rights or cant' out its obligations under the Agreernent and will protect the
Confidential Information by using the same degree of care as it uses to safeguard its
awn oonfidential or proprietary information of a like nature from unauthorized use,
disclosure, or dissemination, but no less than a reasonable degree of care. CLIENT
Wil restrict access to Confidential Information to only its employees or Consultants or
affiliated organizations who require such access in the oourse of their assigned duties
and responsibilities and who have been informed of CLIENTs obligations of
confidence and have agreed in writing to preserve the oonfidentiality of such
infor nation under terms and oonditions no less restrictive than those set forth herein,
provided that in the case of CLIENT, CLIENT may riot permit a Consultant which is a
competitor of crmOrbit to aooess Confidential I nfomation of ormOrbit Wthout the
express written approval of crmOrbit except as otherwise provided for in an executed
Statement of Work or Exhibit to this agreement. In the event that any Confidential
Information is required to be disclosed pursuant to any law (including the California
Public Reoords Act), oode or regulation, if permitted by law, CLIENT will give crmOrbit
AWei W11 -Alt IWA
immediate notice thereof and will use its oom7erclally reasonable efforts to cooperate
with crmOrbit if arriOrbit seeks a protective order with respect thereto.
7. VftraiYy.
7.1 Exclusive Warranty. cmO bit warrants that the EO Service will perform in all material
respects the functions described in the then current product documentation for the EO
Service. If the EO Service fails to operate as warranted in this Section 7.1 and CLIENT
notifies cmOrbit in writing of the nature of the non-confomance ("Notioe"), cmOrbit
will make comrrerclally reasonable efforts to promptly repair or replace the
nonconforming EO Service without charge. If, after a reasonable opportunity to cure of
no less than 45 days, aniOrbit does not remedy the non-conformance, CLIENT may
no later than ninety (90) days after giving the Notice terminate the Agreement and
receive a refund of the prepaid EO Service fees for the period following the date of
Notice.
7.2 Warranty Disclaimer. Except for the warranties expressly described in these Tem -s of
Use, arriOrbit makes no other warranties with respect to the EO Service or other
services provided by crmOrbit, express, implied or statutory, and disclaims any implied
warranties of inerchantability, fitness for a particular purpose or any warranty arising
from course of dealing, usage or trade practioe. arriOrbit does not warrant that the EO
Service and the CLI ENT Data stored through the use of the EO Services are not
susceptible to intrusion, attack or computer virus infection.
8. Limitation of Liability.
Except for damages related to negligent breach of Confidentiality, neither Partys
aggregate liability under this Agreement for any claim arising under or relating the
Agreement, the EO Application Services or any other services provided by crmOrbit
under any theory of liability including contract, strict liability, indemnity, tort (including
negligence) or otherwise, Wll not exceed the fees due to crmOrbit up until the date of
termination. In no circumstances Wil either party be liable for any special, indirect,
cost of cover, incidental, exemplary, punitive, or consequential damages, such as, but
riot limited to, loss of revenues.
CLIENT acknowledges that CLIENT Data will be transmitted outside of the EO Service
and SFDCs system and to that extent; neither SFDC nor cmO bit are responsible for
the privacy, security or integrity of the CLIENT Data. The EO Services is suNect to any
limitations, delays, and other problems with the SFDC Service and those inherent in
the use of the Internet and electronic communications. crmOrbit is not responsible for
any delays, delivery failures, or other damage resulting from the foregoing.
9. Tenn and Termination. The initial term of the Agreement is the period as specified in
Addendurn(s) attached to this Agreement. SuNect to any applicable volume discounts,
the EO Service Fees for any Renewal Term may be annually increased no greater
than 3.5% and shall be invoiced on the same schedule as in effect for the billing period
immediately prior to the expiration of the Initial Term This agreement shall
automatically renewwith same terms unless teminated by one of the parties. CLIENT
shall solicit reneM temis and pricing. Only an execrated copy of CLIENTs Purd-iase
Order and mutually agreed endorsed agreerrents constitute renewal of this
agreement. amOrbit may teminate the Agreement by written notice if CLIENT
comTits a material breach of the Agreement, which breach is not cured within forty-
five (45) days of written notice thereof. In the event of a breach by amOrbit of its
obligations hereunder which breach is not cured within forty five (45) days of written
notice thereof, CLIENT may teminate that portion of the Agreement applicable to the
EO Service or other service by written notice to amOrbit. Upon termination of the
Agreement or temination of the EO Service or other amOrbit servioes, as the case
may be, cmiOrbit shall immediately cease providing any such EO Service or other
services.
9.1 License Cancellation for Change in Business Conditions. Notwithstanding Section 4.3,
CLIENT may cancel a License subscription associated with a particular Statement of
Work upon 30 days written notice to arriOrbit in the event that:
9.1.1 Client provides written notice that the energyOrbit solution is unable to support
regulatory reporting requirements, provides details on what is needed to support
changed regulatory reporting requirements, and cmnOrbit is unable to make
dianges to oonforrn to new requirements within 45 days of notice.
9.1.2 License cancellation under this section is sul a ect to the following:
9.1.2.1 Al license fees and payment obligations due for the first two (2) years of the
contract shall be due and payable according to the temis of the applicable SOW,
even if cancellation is prior to this date.
9.1.2.2 Upon License cancellation under this section, Client agrees to pay a one-time
penalty equal to 35°/a of the annual total license and user fees, as well as any fees
accrued to date based upon the contract and associated Statements of Work.
Effective Cancellation Date will be upon receipt of these fees.
9.1.2.3 Except as noted in Sections 9.1.4.1 and 9.4.1.2 above, upon Effective
Cancellation Date, license fees for the Cancelled SONshall cease to accrue, and
future payma t obligations for this SOW shall be cancelled.
9.1.2.4 cm -Orbit shall be relieved of any obligations for support and maintenance of
energyOrbit with respect to cancelled licenses as of the Effective Cancellation
Date.
9.1.2.5 CLIENT may export data from the energyOrbit solution using standard report
features and a weeldy full data export feature which is part of the Force.00m
platform Once cancellation fees are received, erogyOrbit will provide up to 40
hours of assistance to transfer data out of the eraZ Obit environment. CLIENT
may engage amOrbit on a time and materials or fixed fee basis to assist with
additional data migration to support a system transition through execution of a
Statement of Work or Change Order to this Agreement.
9.1.2.6 Other than relief of obligations as provided in this section, surviving provisions of
this Agreement and ran -cancelled Statements of Work shall remain in force.
10. Publicity.
crmOrbit may identify CLIENT as a customer of a iDdt. Each party may issue a
press release announcing the relationship famed by the Agreement, suti ect to the
prior approval of the other party, not to be unreasonably withheld or delayed.
11. Exceptions.
11.1 EO Service Exclusions. Notwithstanding anything to the contrary in this Agreement,
cmiOrbit will have no liability under this Agreen-al, with respect to: (i) customizations
of the SFDC and/or EO Service by CLIENT, its Users or Consultants, (ii) use of the EO
Services in violation of this Agreement or other than in accordance with the published
user documentation; (iii) failures which are caused by other software or hardware
products including the SFDC Services.
11.2 SFDC Service Changes. In addition, in the event SFDC (i) alters the SFDC Service
in such a way as to materially adversely impact the operation of the EO Service, or (ii)
no longer agrees to host the EO Service under the same temps and conditions as are
currently in place, then crmOrbit may in its sole discretion restore the operation of the
EO Service in a reasonable period of time or cease offering the EO Service. In the
latter event, arriOrbit will refund the applicable prepaid EO Service fees for the period
following the date the EO Service ceases to be interoperable Wth the SFDC Service or
the EO Service ceases to be hosted by SFDC, as applicable. The remedies set forth in
this Section are the sole remedies for a failure to provide the EO Service due to the
foregoing reasons, and a iOrbit shall have no other obligation or liability Wth respect
thereto.
12. Goveming Law. This Agreement shall be governed exclusively by, and construed
exclusively in aca xdanoe with, the laws of the United States and the State of
California, Wthout regard to its conflict of laws provisions.
13. Miscellaneous. The Agreement constitutes the entire agreement befiwen the parties
relating to the suti ect matter hereof and supersedes all previous agreements or
Fuge 57 of 62
representations, whether oral or written. The Agreement may riot be modified or
amended except in writing signed by a duly authorized representative of each party. If
for any reason a court of oompetent jurisdiction finds any provision of this Agreement
invalid or unenforceable, that praision of the Agreement will be enforced to the
maBdmum extent permissible and the other provisions of this Agreement will remain in
full force and effect. The failure of either party to enforce at any time any of the
provisions of this Agreement will in no way be construed to be a present or future
waiver of such provisions, nor in any way affect the right of either party to enforce each
such pr(ision thereafter. The express waiver by either party of any praision of this
Agreement will not oorditute a waiver of any future obligation to comply with such
provision. The Agreement will be construed and governed in accordance with the laws
of the state of California, without reference to the conflict of laws provisions of any
jurisdiction. Unless otherwise elected by crm Orbit in writing for a particular instance
(which aTnOrbit may do at its option), the sole jurisdiction and venue for actions
related to the subject matter of this Agreement will be in the County of Placer,
California.
14, Venue. The state and federal courts located in or covering Placer County in California
shall have exclusivejurisdiction to adjudicate any dispute arising out of or relating to
this Agreement. Each party hereby consents to the jurisdiction of such courts and
waives any right it may otherwise have to challenge the appropriateness of such
forums, whether on the basis of the inconvenient forum doctrine or otherwise.
15. Arbitration. Any dispute arising out of or relating to this Agreement other than a
dispute requiring urgent relief shall be resolved solely by final and binding arbitration
as follows. Unless the parties otherwise agree in writing, the arbitration shall be
oaxWed in Placer County California before a single arbitrator. The arbitrator shall
have relevant kredge and/or experience in Intemet-based online services and shall
be jointly selected and mutually approved by the parties or, if the parties are unable to
agree, shall be appointed by the American Arbitration Association ("AW). The
arbitration shall be conducted in accordance Wth the AAA's then current commercial
arbitration rules. The parties initially shall share equally the fees and expenses of the
arbitration. However, the arbitrator may award the prevailing party (if applicable and
as determined by the arbitrator) all such fees and expenses (including without
limitation reasonable attorneys' fees) and the arbitrator should award such fees and
expenses if he or she determines that the party acted unreasonably or other than in
good faith. Any arbitration decision so rendered shall be final and binding, and
judgment thereon may be entered in any court of competent jurisdiction.
16. Notices. Both parties consent to the jurisdiction of such courts with respect to any
such actions and agree that process may be served in the manner provided herein for
giving of notices or otherwise as allowed by California law. If any action is brought by
either party to the Agreement against the other regarding the suNect matter hereof,
the substantially prevailing party will be entitled to recover reasonable attorney fees
•• M -
and reasonable expenses of litigation. Notices under the Agreement shall be in writing,
signed and provided to the contact and address indicated in the Agreement provided,
that a party may change such contact or address by written notice to the other party.
Notice will be considered effective on the eariier of actual receipt or. (a) one (1) day
after posting when sent via an express commercial courier, or (b) five (5) days after
posting when sent via certified mail, return receipt requested. Notice will be sent to the
address for each party set forth on the first page of this Agreement, or at such other
address as will be given by either party to the other in writing. Notices to a nOrbit will
be addressed to the attention of: CEO. Failure to perform hereunder shall be excused
to the extent that performance is rendered impossible by act of war, terrorism, strike,
fire, flood, govemmintal acts or orders or restrictions or any other reason where failure
to perform is beyond the control and riot caused by the regi igence of the non-
performing party. This Agreement (including SOft, and Addendun-s) may be
executed in counterparts which, taken together, shall forrn one legal instrument. Any
executed copy of the Agreement made by reliable means (e.g., photocopy, scan, or
facsimile) is considered an original.
END OF EXHIBIT A-1
WRIAW, "I I I'l
RM �
Contracting Members are responsible for paying the fbilowing share d all in\does provided to
NCPA by amiOrbit, under this Agreement:
Organization
Share of
Implementation
costs
(Percent)
Share of Annual
licensing costs
(Percent)
Contracting Member
Alameda
21.07
20.53
Biggs
1.05
1.02
HeIdsburg
4.22
4.11
Lodi
24.24
23.62
Lompoc
6.50
6.34
Rums -Serra
8.63
8.41
Truckee Donner
18.47
18.00
NCPA SUK4\A4RIES OF LIABILITY INSURANCE
See the attached Sum Toles d the fbilo rig insurance coverage:
2. Automobile Liability & Physical Damage
3. Excess Liability
1792562.2
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Workers Compensation and Employer's Liability
Insurance Summary
INSURED Northern California Power Agency
COVERS California Statutory Workers' Compensation & Employer's Liability
TERM July 15, 2011-2012
INSURER Insurance Company of the State of Pennsylvania (Chartis member company)
POLICY NUMBER WC 025889534
ESTIMATED
ANNUAL
PREMIUM $202,420 (includes $16,105 for TRIA)
$ 11,197 California Taxes, Assessments Surcharges
$213,617
Earned premium determined at audit at conclusion of policy term using actual
July 1, 2011-2012 payroll and California rates on file at July 1, 2011.
California taxes, assessments, surcharges subject to audited premium.
LIMITS Statutory for Workers' Compensation
Employer's Liability:
$1,000,000 Bodily Injury by Accident -Each Accident
$1,000,000 Bodily Injury by Disease -Policy Limit
$1,000,000 Bodily Injury by Disease -Each Employee
30
Ike nirtlerl califorlia power aleney
INSURED Northern California Power Agency
Northern California Municipal Power Corporation No. 2 and
Northern California Municipal Power Corporation No. 3
COVERS Automobile Liability & Physical Damage
TERM December 1, 2011 to December 1, 2012
At 12:01 Standard Time
INSURER The Hartford Fire Insurance Company
POLICY NUMBER 57UEN TL0013
LIMITS OR
AMOUNTS Liability per accident
Uninsured Motorists
Underinsured Motorists
Auto Medical Payments
Physical Damage — Comprehensive
Physical Damage — Collision
Physical Damage — Comprehensive
Physical Damage — Collision
Towing and Labor
Rental Reimbursement
$1,000,000
$1,000,000
Included in Uninsured
Motorists
$ 5,000
Not Covered
Owned Autos
Not Covered
Owned Autos
$ 25,000
Hired Autos
$ 25,000
Hired Autos
Not Covered
Not Covered
Defense Cost: Paid in addition to the limits
Coverage Trigger: Accident
Liability Deductible: Each Accident Nil
Physical Damage Deductibles: Physical Damage —Comprehensive $1,000
Physical Damage — Collision $1,000
15
Ike nirtlerl califorlia power aleney
Excess Liability
Insurance Summary
INSURED Northern California Power Agency
Northern California Municipal Power Corporation No. 2 and
Northern California Municipal Power Corporation No. 3
COVERS Excess Liability
Claims -First -Made Form
TERM December 1, 2011 to December 1, 2012
At 12:01 Standard Time
Retroactive Date: December 1, 1986 at 12:01am Standard Time at the address of
the named insured Claims -First -Made Policy; Community Service Retroactive
Date: December 1, 1998; Pending and Prior Date for EPLI: December 1, 1994
INSURER Associated Electric & Gas Insurance Services, Ltd. (AEGIS), Form 8100(3/2007)
(Non Admitted Insurer)
POLICY NUMBER X05055401P
LIMITS OR
AMOUNT A. Limit of liability each occurrence:
1. $35,000,000*
2. $70,000,000 General Aggregate
B. Joint Venture Limit of Liability each occurrence:
Per limit of Liability section percentage of insured interest in JV within total
policy limits (not > $35,000,000)
C. Combined Products/Completed Operations Liability
Aggregate Limit of Liability: $35,000,000
D. Failure to Supply Liability Aggregate Limit of Liability: $35,000,000
E. Pollution Liability Aggregate Limit of Liability: $35,000,000
F. Incidental Medical Malpractice Injury Limit of Liability each occurrence:
$35,000,000
G. Wild Fire Liability Aggregate Limit of Liability for the Policy Period
$35,000,000
* Subject to the $70,000,000 General Aggregate of the Policy
17
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Professional Liability
Insurance Summary
INSURED Northern California Power Agency
COVERS Professional Liability Insurance
Claims -First -Made Form
TERM March 27, 2011 to March 27, 2012
At 12:01 Standard Time
Retroactive Date: December 1, 2002 (Designated Activities)
May 24, 2005 (Accountant's Liability)
Claims -First -Made Policy
INSURER Associated Electric & Gas Insurance Services, Ltd. (AEGIS)
(Non Admitted Insurer)
POLICY NUMBER E0352A1A11
LIMITS OR
AMOUNT $10,000,000
DEDUCTIBLE $500,000
PREMIUM $66,990
27
RESOLUTION NO. 2012-41
A RESOLUTION OF THE LODI CITY COUNCIL AUTHORIZING
THE CITY MANAGERTO EXECUTEA CONSULTANT
SERVICES AGREEMENT WITH NORTHERN CALIFORNIA
POWERAGENCY REGARDING crmORBIT, INC., AND
ALLOCATE PUBLIC BENEFIT PROGRAM FUNDS
TITS: i Ti i i• Ti • i• i i i i i i i i i i i i• i i i• i i i i���������� � ��� �•�-�-•-•7-fZTTTTTTTTTrrT-��
WHEREAS, the Northern California Power Agency (NCPA) has executed an agreement
with crmOrbit, Inc. to provide energy efficiency services for NCPA members; and
WHEREAS, it will allow residential customers to apply for their energy efficiency utility
rebates via the utility's web site and create a database for reporting purposes; and
WHEREAS, this will streamline and expedite rebate processing for both the customer
and City staff. In addition, this new database will serve as the platform for Lodi Electric Utility's
annual state -required filing of energy savings achieved and rebate funds provided to the City's
electric utility customer -owners; and
WHEREAS, the total cost of this service is $105,000 and covers the ensuing five fiscal
years; and
WHEREAS, staff requests that the City Council authorize the City Managerto execute a
Consultant Services Agreement with NCPA, who will administer a contract with crmOrbit, Inc.
for this new energy efficiency service and allocate funds for the current fiscal year in the amount
of $27,000.
NOW, THEREFORE, BE IT RESOLVED that the Lodi City Council does hereby
authorize the City Manager to execute a Consultant Services Agreement with Northern
California Power Agency regarding crmOrbit, Inc. and allocate $27,000 in Public Benefit
Program funds for the current fiscal year.
Dated: April 18, 2012
------------------
------------------
hereby certify that Resolution No. 2012-41 was passed and adopted by the City
Council of the City of Lodi in a regular meeting held April 18, 2012, by the following vote:
AYES: COUNCIL MEMBERS — Hansen, Johnson, Nakanishi, and
Mayor Mounce
NOES: COUNCIL MEMBERS — None
ABSENT: COUNCIL MEMBERS— Katzakian
ABSTAIN: COUNCIL MEMBERS — None,,,�
6
rJOHL
City Clerk
2012-41