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HomeMy WebLinkAbout2010/12/07 Item 6 ';"'~ CITY COUNCIL AGENDA STATEMENT ~"''''''",. d_ '\~f<'" ;! , ,iJ, }', :S\\~ CITY OF .~ CHULA VISTA DECEMBER 7, 2010, Item~ REVIEWED BY: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING THE 2011 BUDGET TO APPROPRIATE $1,362,997 FROM THE SAN DIEGO GAS & ELECTRIC LOCAL GOVERNMENT PARTNERSHIP TO THE CITY'S ENERGY CONSERVATION FUND TO CONTINUE PROVIDING ENERGY EFFICIENCY PROGRAMS AND SERVICES' DIRECTOR OF CONSERV A TION~IRONMENT AL SERVICES ~ DIRECTOR OF PUBLIC WO~ CITY MANAGER~ ASSISTANT CITybAGER '7--:- ITEM TITLE: SUBMITTED BY: 4/STHS VOTE: YES 0 NO D SUMMARY In December 2009, the City of Chula Vista and San Diego Gas & Electric (SDG&E) entered into a 3-year "Local Government Partnership" agreement to provide $4,088,991 ($1,362,997 per calendar year) to support local energy efficiency services. The funding, which is provided by the California Public Utilities Commission through a "Public Goods Charge" on monthly energy bills, is used to help community members and City operations reduce electricity and natural gas consumption, decrease monthly utility costs, and contribute to lowering citywide grcenhouse gas emissions. Appropriating $1,362,997 from the Local Government Partnership will allow the City to fund staffing to continue to offer energy efficiency services. ENVIRONMENTAL REVIEW The Development Services Director has reviewed the proposed activity for compliance with the California Environmental Quality Act (CEQA) and has determined that the proposed action(s) qualifies for a Class 8 categorical exemption pursuant to Section 15308 [Actions by Regulatory Agencies for Protection of the Environment] of the State CEQA Guidelines because the energy savings resulting from the energy efficiency programs will contribute to reducing Chula Vista's greenhouse gas or "carbon" emissions, thus improving air quality. Therefore, no further CEQA environmental review is necessary. 6-1 DECEMBER 7, 2010, 1tem~ Page 2 of 4 RECOMMENDATION Council adopt the resolution. BOARDS/COMMISSION RECOMMENDATION The Resource Conscrvation Commission has been updated regularly by City statT on the SDG&E Local Government Partnership's implementation progress, and supported continuing the program through 2011 at their November 22nd meeting. DISCUSSION Since 2006, the City of Chula Vista and San Diego Gas & Electric (SDG&E), under the auspices of the California Public Utilities Commission, have been collaborating in the implementation of a "Local Government Partnership" program. The program, which is designed to reduce the amount of kilowatt-hours (electricity) and therms (gas) consumed by a local community, has matured into a comprehensive and highly-effective initiative which has been recognized statewide as a model for successful collaboration. The funding is provided through a "Public Goods Charge" which is a monthly utility bill surcharge on energy consumed by every customer in SDG&E's territory. In addition to lowering monthly utility costs, energy efficiency efforts help to reduce demand for local power generation and contribute to reducing Chula Vista's greenhouse gas emissions. In December 2009, the City of Chula Vista and San Diego Gas & Electric (SDG&E) entered into a new 3-year Local Government Partnership agreement to provide $4,088,991 ($1,362,997 per calendar year) to continue and expand these local energy efficiency services in the community (Resolution #2009-284). The Local Government Partnership provides critical funding to support City staff time for energy-related programs and policies. Any resulting energy efficiency capital improvement projects are funded through other external sources and staff would seek future City Council action to appropriate those funds. Since January, staff has been implementing a variety of Local Government Partnership components which are creating new energy efficiency opportunities as described below: Community Energy Efficiency The Conservation & Environmental Services Department continues to promote energy efficiency and conservation in the community through its tree energy evaluation program and participation in community outreach events. Staff completed over 900 on-site evaluations at businesses and residences to identify opportunities to reduce energy and water costs. Through the evaluations and participation in weekly community events, staff also distributed over 1,500 tree energy-saving devices such as Compact Fluorescent Lamps, indoor water savings kits, and "smart". power strips. Finally, staff leveraged federal stimulus funds with its Local Government Partnership to launch the new Home Upf,,'Tude, Carbon Downgrade program, which has provided over 1,000 rebates to residents for energy-etlicient appliances and now offers additional incentives and low-interest loans for energy efficiency and solar retrofits. 6-2 DECEMBER 7, 2010, Item~ Page 3 of 4 Sustainable Communities The Sustainable Communities Program, which is administered by the Development Services Department, works to further integrate energy efficiency into the planning, permitting, and inspection process. Program staff provided technical support to over I, I 00 permit applicants, contractors, and other public agencies on energy efficiency building measures. In addition. over 50 staff training sessions have been organized to educate permit counter technicians, plans examiners, and building inspectors on advanced energy technologies. Finally, the program facilitated approximately 400 new/remodeled buildings meeting the City's new green building standard (includes water efficiency, indoor air quality, stormwater management etc.) and 260 buildings meeting the new enhanced energy efficiency standard. Energy-Efficient Economic Development Initiative The City's Economic Development Division statf leveraged the Local Government Partnership to secure over $1.2 million in additional fcderal funding to identifY critical energy efficiency opportunities at public and private facilitics (ex. hospitals, fire stations. shelters) and to design sustainable energy infrastructure within the City's University Planning Area. These initiatives expand upon and leverage current work by the National Energy Center for Sustainable Communities through additional research, demonstration, and technical assistance projects that will contribute to designing and constructing high efficiency and zero net energy projects in the future. Municipal Energy Efficiency Improvements The program, which is administered by Public Works with assistance from the Conservation & Enviroillnental Services Department, supported statl time to expand the City's energy monitoring efforts and to identify energy efficiency and demand response strategies which lower municipal energy consumption and produce cost savings. As a result, staff secured over $2.8 million in additional financing to implement energy retrofit projects at over 50 municipal sites that will create 1.6 million kWh in annual energy savings (a typical home uses 6,000 kWh annually). The Local Government Partnership contributes to reaching the goal of investing $2 million of "Public Goods Charge" funds annually into community energy efficiency programs as outlined in the 2005 SDG&E and City of Chula Vista Memorandum of Understanding. In addition, the Partnership supports the goals outlined in the Chula Vista Energy Strategy & Action Plan (2001), which prioritized energy management options to address citywide demand and supply, and the Chula Vista Municipal Building Energy Efficiency Policy (2005), which requires the incorporation of energy-conserving measures into City facilities. Finally, the Local Government Partnership directly implements numerous Council-approved climate protection measures - Business Energy & Water Evaluations (Measure #3), Green Building Standards (Measure #4), and Community Energy Etliciency & Solar Retrofits (i.e. Home Upgrade, Carbon Downgrade program or Measure #5). 6-3 DECEMBER 7, 2010, Item CO Page 4 of 4 DECISION MAKER CONFLICT Staff has reviewed the decision contemplated by this action and has determined that it is not site specific and consequently the 500 foot rule found in California Code of Regulations section 18704.2(a)(I) is not applicable to this decision. CURRENT YEAR FISCAL IMP ACT The $1,362,997 appropriation will support continued implementation of the Chula VistalSDG&E Local Government Partnership program through calendar year 2011. The funds, which will be appropriated to the Energy Conservation Fund, will be used to support City staff time and program costs for developing and implementing energy efficiency programs at municipal facilities (non-capital expenditures only) and in the community. Approximately 6 full-time and 8 part-time City staff members' salaries and benefits are fully funded through the program. In addition, the resulting energy reductions from the program will help generate annual energy cost savings for participating businesses and residents and within municipal operations. For Fiscal Year 2011, staff will be appropriating $190,000 to the Personnel Services category, $234,597 to the Services and Supplies category, and $938,400 to the Other Expenses category of the Energy Conservation Fund to be offset by grant revenue. ONGOING FISCAL IMPACT The current Local Government Partnership agreement will provide an additional $1,362,997 for calendar year 2012 which will continue to fully support City staff time and program costs associated with developing and implementing identified energy efficiency-related programs. Furthermore, City staff and SDG&E plan to pursue funding to continue the Local Government Partnership program as part of the next California Public Utilities Commission funding cycle (2013-2015). The Municipal Energy Efficiency Improvements component will produce long-term annual energy cost savings for the City's General Fund and help minimize the impact of future utility rate increases. The program also helps local businesses and residents reduce their monthly utility costs and redirect those financial resources to support local purchases and job creation. ATTACHMENTS Attachment A ~ 2010-2012 Energy Efficiency & Conservation Partnership Agreement Prepared by: Brendan Reed, Environmental Resource Afanager, Conservation & Environmental Services 6-4 , i ATTACHMENT A AGREEMENT TO JOINTLY DELIVER THE 2010-2012 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION PARTNERSIIIP PROGRAM BETWEEN CITYOFCHULA VISTA and SAN DIEGO GAS & ELECTRIC COMPANY Dated: December 15,2009 This program is funded by California utility customers under the auspices ofthe California Public Utilities Commission. 2010-2012 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION PARTNERSHIP AGREEMENT 6-5 THIS AGREEMENT TO JOINTLY DELIVER THE 2010-2012 CITY OF OlliLA VISTA ENERGY EFFICIENCY AND CONSERVATION PARTNERSHIP PROGRAM (the "Agreement") is effective as of January 1,2010 ("Effective Date") by and among SAN DIEGO GAS & ELECTRIC COMPANY ("SDG&E"), and THE CITY OF CHULA VISTA ("City"). SDG&E and City may be referred to hercin individually as a "Party" and collectively as the ~'Parties.'l RECITALS WHEREAS, on October 1, 2009 the California Public Utilities Commission (the "Commission") in 09-09-047 in A.08-07-021 et a1 authorized certain energy efficiency programs to be delivered to California utility customcrs for the years 2010 through 2012 and the continuation of programs where local governmental entities partnered with utilitics to delivcr energy efficiency information and education to utility customers; WHEREAS, SDG&E submitted applications for the implementation of energy efficiency programs which included the 2010-2012 City ofChula Vista Energy Efficiency and Conservation Partnership Program (hereinafter referred to as the "Program"), involving the delivery of energy efficiency funding, incentives, information, training and materials to City, its residents, developers, and South Bay cities in SDG&E's service territory; WHEREAS, the Parties desire to enter into an agreement that supersedes all previous agreements, if any, and sets forth the terms and conditions under which the Program for the 2010 through 2012 program years shall be implemented; NOW THEREFORE, for valuable consideration, the receipt and sufficiency of which is hereby aclmowledged, the Parties agree as follows: 1. DEFINITIONS 1.1. Agreement: This document and all exhibits attachcd hereto and incorporated herein, and as amended from time to time. 1.2. AU: The Administrative Law Judge assigned to the Commission's Energy Efficiency Ru1emaking (R.01-08-028) or its successor proceeding. 1.3. Amendment: A future document executed by the authorized representatives of all Parties which changes or modifies the terms of this Agreement. 1.4. Authorized Budget: The Commission-approved total for performance of the Authorized Work is $4,088,991 as set forth in the Scope of Work. 1.5. Business Day: The period from one midnight to the following midnight, excluding Saturdays, Sundays, and holidays. 2 2010-2012 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION PARTNERSHIP AGREEMENT 6-6 1.6. Calendar Day: The period from one midnight to the following midnight, including Saturdays, Sundays, and holidays. Unless otherwise specified, all days in this Agreement are Calendar Days. 1.7. Scope of Work: The Parties' Scope of Work for implementing the Program in SDG&E's service territory is attached hereto and incorporated herein as Exhibit A. 1.8. Contractor: An entity contracting directly or indirectly with a Party, or any subcontractor thereof subcontracting with such Contractor, to furnish services or materials as part of or directly related to such Party's Authorized Work obligations. City's Contractors shall be selected from SDG&E's approved list, where applicable, and shall not include City's contract staff labor for the Program. 1.9. Cost Categories: Items defined by the Commission's Reporting Requirements Manual. The cost categories relevant to this Program are noted in the Scope of Work. 1.10. Eligible Customers or Customers: Customers eligible for Program services are SDG&E customers. 1.11. Energy Efficiency Measure (or Measure): As used in the Commission's Energy Efficiency Policy Manual, Version 3, August 2005. 1.12. EM&V: Evaluation, Measurement and Verification of the Program pursuant to Comruission requirements. 1.13. Gas Surcharge: The funds collected from gas utility ratepayers pursuant to Section 890 et al. of the California Public Utilities Code for public purposes programs, including energy efficiency programs approved by the Commission. 1.14. Program Expenditures: Actual (i.e., no mark-up for profit, administrative or other indirect costs), reasonable expenditures that arc directly identifiable to and required for the Authorized Work, up to the amounts budgeted in the Concept Paper's budget worksheets for such Authorized Work. 1.15. Public Goods Charge (pGC): The funds collected from electric utility ratepayers pursuant to Section 381 of the California Public Utilities Code for public purposes programs, including energy efficiency programs approved by the Commission. In addition, all terms used in the singular will be deemed to include the plural, and vice versa. The words "herein," "hereto," and "hereunder" and words of similar import refer to this Agreement as a whole, including all exhibits or other attachments to this Agreement, as the same may from time to time be amended or supplemented, and not to any particular subdivision contained in this Agreement, except as the context clearly requires otherwise. "Includes" or 3 2010-2012 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION PARTNERSHIP AGREEMENT 6-7 "including" when used herein is not intended to be exclusive, or to limit the generality of the preceding words, and means "including without limitation." The word "or" is not exclusive. 2. PURPOSE The Program is funded by California utility ratepayers and is administered by SDG&E under the auspices of the Commission. The purpose of this Agreement is to set forth the terms and conditions under which the Parties will jointly implement the Program. The work authorized pursuant to this Agreement is not to be performed for profit. This Agreement is not intended to and does not form any "partnership" within the meaning of the California Uniform Partnership Act of 1994 or otherwise. 3. PROGRAM DESCRIPTION The 2010-2012 SDG&E/Chula Vista Energy Efficiency Partnership's goal is to create ilIDovativc approaches to improving community and municipal energy efficiency and achieving both direct and indirect energy savings. The Partnership will combine and leverage the resources of four City departments to dclivcr cost-effective, holistic opportunities for promoting energy efficiency within the community. The program components include municipal facility efficiency improvements, strengthened bllilding energy codes and inspections, energy-saving redevelopment planning and design and community-based energy conservation education and facility assessments. The program will mainly serve City of Chula Vista residents and businesses estimated at 225,000 and 13 ,000, respectively. It is also anticipated that the SDG&E/Chula Vista Partnership may partially serve neighboring communities and further act as a program model for other South Bay cities' future involvement in SDG&E Energy Efficiency Partnerships. 4. AUTHORIZED WORK 4.1. Scope. The work authorized by the Commission for the Program ("Authorized Work") is set forth in this Agreement and in the Scope of Work for the service territory of SDG&E and shall be performed by the Parties pursuant to the terms of this Agreement. 4.2. Obiectives. Major objectives for the Program are as follows: Community Energy Efficiency The Conservation & Environmental Services Department will continue to promote energy efficiency and conservation in the community through its business/residential energy evaluation program and participation in community outreach events. Staff will use the on-site evaluations and event.~ to distribute energy-saving devices such as Compact Fluorescent Lamps, LED holiday lights, indoor water savings kits, and "smart" power strips to help the community reduce their energy use and utility costs. Staff will also integrate the new Home 4 2010-2012 CITY OF CHULA VISTA ENERGY EFFiCIENCY AND CONSERVATION PARTNERSHIP AGREEMENT 6-8 Upgrade, Carbon Downgrade program, which provides streamlined permitting, contracting, and financing for energy efficiency retrofits, into Partnership activities. Finally, the Conservation & Environmental Services Department will assist neighboring South Bay communities in developing their own energy and climate-related programs helping to reduce regional energy demand and improve local air quality. Sustainable Communities The Sustainable Communities Program, which is administered by the Development Services Department, will work to further integrate energy efficiency into the planning, permitting, and inspection process. Program staff will provide technical support to pcrmit applicants, contractors, and developers on energy efficiency measures and will train permit counter technicians, plans examiners, and building inspectors on advanced energy technologies. Finally, the program will verify compliance with Chula Vista's new green building standards (including enhanced energy efficiency requirements) and may develop a voluntary, incentivized option for project proponents interested in efficiency levels beyond the new State codes and related City ordinances. Energy-Efficient Economic Development Initiative The City's Economic Development Division will demonstrate how energy- cfficicnt and renewable energy technologies and energy conservation can be cost- effectively integrated into large-scale development projects to reduce energy consumption and grcenhouse gas emissions. The initiative will expand upon and leverage current work by the National Energy Center for Sustainable Communities through additional research, demonstration, and technical assistance projects that will enable developers and builders to design and construct high- efficiency and zero-net-energy projects at "Greenfield" and "Brownfield" sites throughout the City. Municipal Energy Efficiency Improvements The program, which is administered by Public Works with assistance from the Conservation & Environmental Services Department, will support staff time to expand the City's energy management efforts by identifying and implementing energy efficiency and demand response strategies which lower municipal energy consumption and produce cost savings. 5. OBLIGATIONS OF THE PARTIES 5.1. Generally. Each Party shall perform its Authorized Work obligations within the Authorized Budget in conformance with the deliverables, schedules (including the Milestone Schedule) and the budgets associated with such Authorized Work as sct forth in this Agreement and the Concept Paper, and shall furnish the required labor, equipment 5 2010-2012 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION PARTNERSHIP AGREEMENT 6-9 and material with the degree of skill and care that is required by current professional standards. 5.2. Additional Obligations ofCitv. 5.2.1. City shall obtain the approval of SDG&E when developing Program marketing materials prior to any distribution, publication, circulation or dissemination in any way to the public. In addition, all advertising, marketing or otherwise printed or reproduced material used to implement, refer to or is in any way related to the Program must contain the following language: "This program is funded by California utility ratepayers and administered by San Diego Gas & Electric Company, under the auspices of the California Public Utilities Commission." 5.2.2. City will communicate regularly with the program representative of SDG&E, and shall advise SDG&E of any problems or delay associated with City's Authorized Work obligations. 5.3. Additional Obligations ofSDG&E. 5.3.1. SDG&E will be actively involved in all aspects of Program delivery. SDG&E will use its best efforts to add value to the Program by dedicating the human resources necessary to implement the Program successfully and providing in-kind services support for the Program's marketing and outreach activities. 5.3.2. SDG&E shall provide, at no cost to the Program, informational and educational materials on SDG&E's statewide and local energy efficiency programs to City to enable City to implement the Program. 5.3.3. SDG&E shall provide a program representative on a part-time basis, who will be the point of contact between City and SDG&E for the Program. 5.4. EM&V. Once the Commission has approved and issued an evaluation, measurement and verification ("EM&V") plan for the Program, such EM&V plan shall be attached to this Agreement as Exhibit B and shall be incorporated herein by this reference. Any subsequent changes or modifications to such EM& V plan by the Commission shall be automatically incorporated into Exhibit B. 6. ADMINISTRATION OF PROGRAM 6.1. Decision-making and Approval. 6.1.1. The following actions and tasks require unanimous consent of the Parties: 6 2010-2012 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION PARTNERSHIP AGREEMENT 6-10 a. Any action that materially deviates from the Scope of Work. b. Any action that materially impacts the Scope of Work's schedule or the Program. c. Any action that materially impacts the Program's budget set forth in the Scope of Work. d. Selection of any Contractor not previously approved by SDG&E. 6.1.2. Unless otherwise specified in this Agreement, the Parties shall document all material Program decisions, including, without limitation, all actions specified in Section 6.1.1 above, in meeting minutes or if taken outside a meeting, through written communication, which shall be maintained in hard copy form on file by the Parties for a period of no less than ten (10) years after the expiration or termination ofthis Agreement. 6.2. Rcgular Meetings. During the Term of this Agreement, the Parties shall meet on a regular basis, which shall occur no less than quarterly, at a location reasonably agreed upon by the Parties, and shall engage in routine weekly communication to review the status of the Program's deliverables, schedules and the budgets, and plan for upcoming Program implementation activities. Any decision-making shall be reached and docunlented in accordance with the requirements of Section 6.1.2 above. 6.3. Coordinating the Program Activities. Each Party shall be responsible for (i) coordinating the inlplementation of its Authorized Work obligations with the other Party, and (ii) monitoring the overall progress of the Authorized Wark, to ensure that the Program remains on targct, (including achieving the Program's energy savings and demand reduction goals), on schedule (including pursuant to the milestone schedule set forth in Exhibit D ("Milestone Schedule"), and mccts all reporting and other filing requirements. 6.4. Regular Commlmication. The Parties agrcc to communicate regularly with the other Parties and to advise the other Parties of any problems associated with successful implementation of the Program. 6.5. Coordinating with Other Energy Efficiencv Programs. As applicable, SDG&E shall coordinate with other existing or selected programs (including programs targeting low-income customers) to enhance consistency in incentives and other Program details, minimize dupLicative administrative costs and enhance the possibility that programs can be marketed together to avoid duplicative marketing expenditures. All Parties will coordinate with other encrgy programs to maximize customer satisfaction and energy savings. 6.6. Non-ResPonsibility for Other Parties. Notwithstanding anything contained in this Agreement in the contrary, a Party shall not be responsible for the performance or non- 7 2010-2012 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION PARTNERSHIP AGREEMENT 6-11 performance hereunder of any other Party, nor be obligated to remedy any other Party's defaults or defective performance. 7. DOUBLE DIPPING PROHIBITED. In performing its respective Authorized Work obligations, a Party shall implement the following mechanism and shall take other practicable steps to minimize double-dipping: 7.1. Prior to providing incentives or services to an Eligible Customer, City shall obtain a signed form from such Eligible Customer stating that: 7.1.1. Such Eligible Customer has not received incentives or services for the same measure from any other SDG&E program or from another utility, state, or local program; and 7.1.2. Such Eligible Customer agrees not to apply for or receive incentives or services for the same measure from another utility, state, or local program. City shall keep its Eligible Customer-signed forms for at least 5 years after the expiration or termination of this Agreement. 7.2. City shall not knowingly provide an incentive to an Eligible Customer, or make payment to a Contractor, who is receiving compensation for the same product or service either through another ratepayer funded program, or through any other funding source. 7.3. City represents and warrants that it has not received, and will not apply for or accept incentives or services for any measure provided for herein or offered pursuant to this Agreement or the Program from any other utility, state or local program. 7.4. The Parties shall take reasonable steps to minimize or avoid the provision of incentives or services for the same measures provided under this Program from another program or other funding source ("double-dipping"). 8. REPORTING 8.1. Reporting Requirements. The Parties shall implement those reporting requirements set forth in Exhibit C attached hereto and incorporated herein by this reference, as approved by the Commission and as the same may be amended from time to time, or until the Commission otherwise requires or issues different or updated reporting requirements for the Program, in which case and at which time such Commission- approved reporting requirements shall replace the requirements set forth in Exhibit C in their entirety. 8 2010-2012 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION PARTNERSHIP AGREEMENT 6-12 8.2. Commission Reporting Requirements Manual. All reports shall be submitted in accordance with the requirements of the latest version of the Commission's Reporting Requirements Manual (currently Version 3, Revised April 2005) and any other reporting protocol established by Commission staff. The Parties shall use their best efforts to provide any additional information as requested by SDG&E or by Commission staff. 9. PAYMENTS 9.1. Authorized Budget The total Authorized Budget for performance of the Authorized Work is $4,088,991. No Party shall be entitled to compensation in excess of the Authorized Budget for such Party's Authorized Work obligations. However, if SDG&E executes any fund shift in accordance with Section 9.4 below, then each Party shall be entitled to compensation up to, but not exceeding, the Authorized Budget, as revised to reflect such fund shift, for such Party's Authorized Work obligations. 9.2. Program Expenditures. Each Party shall be entitled to spend PGC or Gas Surcharge Program Funds on Program Expenditures incurred by such Party. 9.3. Pavment to City. In order for City to be entitled to PGC or Gas Surcharge funds for Program Expenditures: 9.3.1. City shall submit quarterly reports to SDG&E, in a format reasonably acceptable to SDG&E and containing such information as may be required for the reporting requirements set forth in Section 8 above ("Quarterly City Reports"), by the tenth (10th) Calendar Day of the calendar month following performance, setting forth all Program Expenditures. 9.3.2. City shall submit to SDG&E, together with its Quarterly City Report, a quarterly invoice for reimbursement of reported Program Expenditures, in a format acceptable to SDG&E, attaching all documentation reasonably necessary to substantiate the Program Expenditures, including, without limitation, the following: a. Incentives: Subject to the provIsIons of Section 7, for each incentive paid to Eligible Cu:,iomcrs or Contractors (other than point of purchase programs): (i) Eligible Customer or Contractor name, address and telephone number; (ii) the type and quantity of each measure installed or received; (iii) the amount of each incentive paid, and (iv) the date each payment was provided or each meaSUl'e was installed or received. 9 2010-2012 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERV ATTON PARTNERSHIP AGREEMENT 6-13 b. Labor: For each of the Program's budget categories applicable to City (e.g. Direct Implementation), a list of individuals and total hours worked and labor rate(s) for each person during the month in each budget category. c. Overhead items other than travel/training/conferences: Supporting documentation for overhead items such as rent, computer equipment, facility charges, is required and shall be. provided in accordance with the provisions of Exhibit C. However, such information must be provided upon request by either SDG&E or thc Commission. d. TraveVTraining/Conference: Supporting documentation for all travel-related expenditures. While original receipts need not be submitted, a detailed expense report for all travel expenses should be provided, which includes airfare, mileage, meals, lodging, parking, etc, in the format approved by SDG&E. A detailed travel expense report should include the following information: name of person incurring expense, reason for expense, date(s) incurred and type of expense (e.g. Airfare, Airport Parking, Rental Car, Other Parking, Mileage, Meals, Hotel, Other costs, if any). e. Contractor Costs: Copies of all Contractor invoices. If only a portion of the Contractor costs applies to the Program, City shall clearly indicate the line items or percentage of the invoice amount that should be applied to the Program, as provided in Exhibit C. f. Marketing: A copy of each distinct marketing material produced, with quantity of a given marketing material produced and the method of distribution. 9.3.3. SDG&E reserves the right to reject any City invoiced amount for any of the following reasons: a. The invoiced amount, when aggregated with previous Program Expenditures, exceeds the amount budgeted therefore in thc Authorized Budget for such Authorized Work. b. There is a reasonable basis for concluding that such invoiced amount is unreasonable or is not directly identifiable to or required for the Authorized Work, the Scope of Work or the Program. c. Such invoiced amount, in SDG&E's sole discretion, contains charges for any item not authorized under this Agreement or by the 10 2010-2012 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION PARTNERSHlP AGREEMENT 6-14 Commission, or is deemed untimely, unsubstantiated or lacking proper documentation. 9.3.4. Should SDG&E disapprove of any Program Expenditure of City, City invoice or Quarterly City Report, SDG&E may request such additional performance required from City, modification required to City's invoice or such other action as may be required of City, and any continuing dispute there from shall be resolved in accordance with the procedures set forth in Section 14. 9.3.5. City shall maintain for a period of not less than five (5) years all documentation reasonably necessary to substantiate the Program Expenditures, including, without limitation, the documentation set forth in Section 9.3.2(a) through (g) above. City shall promptly provide, upon the reasonable request by SDG&E, any documentation, records or information in connection with the Program or its Authorized Work. 9.4. Shifting Funds Across Budget Categories. SDG&E may shift Program funds among budget categories (e.g. Administrative and Direct Implementation) as set forth in the Scope of Work to the maximum extent permitted under, and in accordance with, Commission decisions and rulings to which this Program relates. 9.5. Reasonableness of Expenditures. Each Party shall bear the hurden of cnsuring that its Program Expenditures are objectively reasonable. The Commission has the authority to review all Program Expenditures for reasonableness. Should the Commission, at any time, issue a finding of unreasonableness as to any Program Expenditure, and require a refund or return of the PGC or Gas Surcharge funds paid in the reimbursement of such Program Expenditure, the Party who incurred such Program Expenditure and received reimbursement under this Agreement shall be solely and severally liable for such refund or return. 9.6. Refund of PGC or Gas Surcharge Funds. With respect to any amount subject to refund to the Commission. pursuant to any subsequent Commission decision or ruling, should the Commission dctermine that a refund is due and seeks to recover such refund, the amount due shall be returned as directed by the Commission, within 30 days of receipt of written noticc that payment is owed, as follows: (I) if the refund is attributable to an overpayment of Program funds to a Party, then that Party shall be solely liable for such refund; (2) if the refund is attributable to an unreasonable expenditure, then the Party who (i) incurred such Program Expenditure and received reimbursement under this Agreement, or (ii) was otherwise entitled to receive reimbursement under this Agreement but did not actually receive reimbursement due to receipt of an equivalent otlset, shall be solely liable for such refund; (3) for any other refund, each Party shall be solely liable for its pro-rata share, determined by calculating the percentage of the total overall Program Expenditures represented by each Party's reimbursements of Program Expenditures (both 11 2010-2012 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION PARTNERSHIP AGREEMENT 6-15 actual reimbursements and those to which the Party was otherwise entitled but did not receive due to receipt of an equivalent offset). Nothing in this provision is intended to limit a Party's right to pursue administrative or other remedies available with respect to a Commission decision or ruling. A Party's approval of any action which is the responsibility of another Party under this Agreement shall not shift the corresponding responsibility with respect to any overpayment or unreasonable Program Expenditure. Notwithstanding the foregoing, any overpayment of Program funds to a Party (the "Receiving Party") shall be immediately due and payable by the Receiving Party, upon demand therefore, to the Party who made the overpayment, and the Party who made the overpayment shall have the right to set the overpayment off from any other Program funds payable to the Receiving Party, if possible, or otherwise pursue any available remedies for the recovery of the overpayment 10. END DATE FOR PROGRAM AND ADMINISTRATIVE ACTIVITIES. Unless this Agreement is terminated pursuant to Section 24 below, or otherwise by the mutual agreement of the Parties or so ordered by the Commission, the Parties shall complete all Program Administrative activities (as defined by the Scope of Work) and reporting requirements by no later than March 31, 2013. 11. FINAL INVOICES All Parties must submit final invoices no later than March 31, 2013. 12. INDEMNITY 12.1. Indemnity bv City. City shall indemnifY, defend and hold harmless SDG&E, and its successors, assigns, affiliates, subsidiaries, current and future parent companies, officers, directors, agents, and employees, from and against any and all expenses, claims, losses, damages, liabilities or actions in respect thereof (including reasonable attorneys' fees) to the extent arising from (a) City's negligence or willful misconduct in City's activities under the Program or performance of its obligations hereunder, or (b) City's breach of this Agreement or of any representation or warranty of City contained in this Agreement. 12.2. Indemnitv bv SDG&E. SDG&E shall indemnifY, defend and hold harmless City and its successors, assigns, affiliates, subsidiaries, current and future parent companies, officers, directors, agents, and employees, from and against any and all expenses, claims, losses, damages, liabilities or actions in respect thereof (including reasonable attorneys' fees) to the extent arising from (a) SDG&E's negligence or willful misconduct in SDG&E's activities under the Program or performance of its obligations hereunder or (b) SDG&E's breach of this Agreement or any representation or warranty of SDG&E contained in this Agreement. 12 2010-2012 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION PARTNERSHIP AGREEMENT 6-16 12.3. LIMITATION OF LIABILITY. NO PARTY SHALL BE LIABLE TO ANY OTHER PARTY FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHATSOEVER WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR STRICT LIABILITY INCLUDING, BUT NOT LIMITED TO, LOSS OF USE OF OR UNDER-UTILIZATION OF LABOR OR FACILITIES, LOSS OF REVENUE OR ANTICIPATED PROFITS, COST OF REPLACEMENT POWER OR CLAIMS FROM CUSTOMERS, RESULTING FROM A PARTY'S PERFORMANCE OR NONPERFORMANCE OF THE OBLIGATIONS HEREUNDER, OR IN THE EVENT OF SUSPENSION OF THE AUTHORIZED WORK OR TERMINATION OF THIS AGREEMENT. 13. OWNERSHIP OF DEVELOPMENTS The Parties acknowledge and agree that SDG&E, on behalf of its ratepayers, shall own all data, reports, information, manuals, computer programs, works of authorship, designs or improvements of equipment, tools or processes (collectively "Developments") or other written, recorded, photographic or visual materials, or other deliverables produced in the performance of this Agreement; provided, however, that Developments do not include equipment or infrastructure purchased for research, development, education or demonstration rclated to energy efficiency. Although City shall retain no ownership, interest or title in the Developments except as may otherwise be provided in the Scope of Work, it will have a permanent, royalty free, non- exclusive license to use such Developments. 14. DISPUTE RESOLUTION 14.1. Dispute Resolution. Except as may otherwise be set forth expressly herein, all disputes arising under this Agreement shall be resolved as set forth in this Section 14. 14.2. Negotiation and Mediation. The Parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by negotiations between the Parties' authorized representatives. The disputing Party shall give the other Parties written notice of any dispute. Within twenty (20) days after delivery of such notice, the authorized representatives shall meet at a mutually acceptable time and place, and thereafter as often as they reasonably deem necessary to exchange information and to attempt to resolve the dispute. If the matter has not heen resolved within thirty (30) days of the first meeting, any Party may initiate a mediation of the dispute. The mediation shall be facilitated by a mediator that is acceptable to all Parties and shall conclude within sixty (60) days of its commencement, unless the Parties agree to extend the mediation process beyond such deadline. Upon agreeing on a mediator, the Parties shall enter into a written agreement for the mediation services with each Party paying a pro rate share 0 f the mediator's fee, if any. The mediation shall be conducted in accordance with the Commercial Mediation Rules of the American Arbitration Association; provided, however, that no consequential damages shall be awarded in any such proceeding and each Party shall bear its own legal fees and expenses. 13 2010-2012 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION PARTNERSHIP AGREEMENT 6-17 14.3. Confidentiality. All negotiations and any mediation conducted pursuant to Section 14.2 shall he confidential and shall be treated as compromise and settlement negotiations, to which Section 1152 of the California Evidcnce Code shall apply, which Section is incorporated in this Agreement by reference. 14.4. lniunctive Relief. Notwithstanding the foregoing provisions, a Party may seek a preliminary injunction or other provisional judicial remedy if in its judgment such action is necessary to avoid irreparable damage or to prcscrve the status quo. 14.5. Continuing Obligation. Each Party shall continue to perform its obligations under this Agrcement pending final resolution of any dispute arising out of or relating to this Agreement. 14.6. Failure of Mediation. If, after good faith efforts to mediate a dispute under the terms of this Agreement as provided in Section 14.2 above, the Parties cannot agree to a resolution of the dispute, any Party may pursue whatever legal remedies may be available to it at law or in equity, before a court of competent jurisdiction and with venue as provided in Section 14.2. 15. REPRESENTATIONS AND WARRANTIES City represents and warrants, as of the Effective Date and thcreafter during the Term of this Agrcement that: 15.1. The Authorized Work performed by City and its Contractors shall comply with the applicable requirements of all statutes, acts, ordinances, regulations, codes, and standards of fcderal, state; local and foreign governments, and all agencies thcreof. 15.2. The Authorized Work performed by City and its Contractors shall be free of any elaim of trade secret, trade mark, trade name, copyright, or patent infringement or other violations of any proprietary rights of any person. 15.3. City shall conform to the applicable employment practices requirements of (Presidential) Executive Order 11246 of September 24, 1965, as amended, and applicable regulations promulgated thereunder. 15.4. City shall contractually require each Contractor it hires to perform the Authorized Work to indemuify SDG&E to the same extent City has indemnified SDG&E under the terms and conditions of this Agreement. 15.5. City shall retain, and shall cause its Contractors to retain, all records and documents pertaining to its Authorized Work obligations for a period of not less than five (5) years bcyond the termination or expiration of this Agreement. 14 2010-2012 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERV ATlON PARTNERSHIP AGREEMENT 6-18 15.6. City shall contractually require all of its Contractors to provide the other Parties reasonable access to relevant records and staff of Contractors conceming the Authorized Work. 15.7. City will take all reasonable measures, and shall require its Contractors to take all reasonable mcasures, to ensure that the Program funds in its possession are used solely for Authorized Work, which measures shall include the highest degree of care that City uses to control its own funds, but in no event less than a reasonable degree of care. 15.8. City will maintain, and may require its Contractors to maintain, the following insurance coverage or self insurance coverage, at all times during the Term of this Agreement: a. b. Workers' Compensation and Employers' Liability: statutory minimum. Commercial General Liability: $1 million minimum. Commercial or Business Auto (if applicable): $1 million minimum. Professional Liability (if applicable): $1 million minimum. c. d. 16. PROOF OF INSURANCE 16.1. Evidence of Insurance. Upon request at any time during the Term of this Agreement, City shall provide evidence that its insurance policies (and the insurance policies of any Contractor, as provided in Section 15.8) are in full force and effect, and provide the coverage and limits of insurance that City has represented and warranted herein to maintain at all times during the Term ofthis Agreement. 16.2. Self-Insurance. If City is self-insured, City shall upon request forward documentation to SDG&E that demonstrates to SDG&E's satisfaction that City sclf- insures as a matter of normal business practice before commencing the Authorized Work. SDG&E will accept reasonable proof of self-insurance c'omparable to the above requirements. 17. CUSTOMER CONFIDENTIALITY REQUIREMENTS 17.1. Non-Disclosure. City, its employees, agents and Contractors shall not disclose any Confidential Customer Information (defined below) to any third party during the Term of this Agreement or after its completion, without City having obtained the prior written consent of SDG&E, except as provided by law, lawful court order or subpoena and provided City gives SDG&E advance written notice of such order or subpoena. 17.2. Confidential Customcr Information. "Confidential Customer Information" includes, but is not limited to, a SDG&E customer's name, address, telephone numbcr, account number and all billing and usage information, as well as lUlY SDG&E customer's information that is marked confidential. If City is uncertain whether any information 15 2010-2012 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION PARTNERSHIP AGREEMENT 6-19 should be considered Confidential Customer Information, City' shall contact SDG&E prior to disclosing the customer information. 17.3. Non-Disclosure Agreement. Prior to any approved disclosure of Confidential Customer Information, SDG&E may require City to enter into a nondisclosure agreement. 17.4. Commission Proceedings. This provision does not prohibit City from disclosing non-confidential information concerning the Authorized Work to the Commission in any Commission proceeding, or any Commission-sanctioned meeting or proceeding or other public forum. 17.5. Return of Confidential Information. Confidential Customer Information (including all copies, backups and abstracts thereof) provided to City by SDG&E, and any and all documents and materials containing such Confidential Customer Information or produced by City based on such Confidential Customer Information (including all copies, backups and abstracts thereof), during the performance of this Agreement shall be relurned upon written request by SDG&E. 17.6. Remedies. The Parties acknowledge that Confidential Customer Information is valuable and unique, and that damages would be an inadequate remedy for breach of this Section 17 and the obligations of City are specifically enforceable. Accordingly, the Parties agree that in the event of a breach or threatened breach of this Section 17 by City, SDG&E shall be entitled to seek and obtain an injunction preventing such breach, without the necessity of proving damages or posting any bond. Any such relief shall be in addition to, and not in lieu of, money damages or any other available legal or equitable remedy. 17.7 Public Records Act. Notwithstanding the foregoing, SDG&E understands that all information' provided to the City may be subject to public review pursuant to the California Public Records Act (California Government Code Section 6250 et seq.), which provides that records in the custody of a public entity might be disclosed unless the information being sought falls into one or more of the exemptions to disclosure set out in Government Code Sections 6254 through 6255. As a result, City may be obligated to disclose any information provided to the City to any party that requests it to the extent permitted under the California Public Records Act. 18. TIME IS OF THE ESSENCE The Parties hereby acknowledge that time is of the essence in performing their obligations under the Agreement. Failure to comply with deadlines stated in this Agreement may result in termination of this Agreement, payments being withheld or other Program modifications as directed by the Commission. 19. CUSTOMER COMPLAINT RESOLUTION PROCESS 16 2010-2012 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION PARTNERSHIP AGREEMENT 6-20 City shall develop and implement a proccss for the management and resolution of Customer complaints in an expedited manner including, but not limited to: (a) ensuring adequate levels of professional Customer service staff; (b) direct access of Customer complaints to supervisory and/or managemcnt personnel; (c) documenting each Customer complaint upon receipt; and (d) elevating any complaint that is not resolved within five (5) days of receipt by City. 20. RESTRICTIONS ON MARKETING 20.!. Use of Commission's Name. No Party may use the name of the Commission on marketing materials for the Program without prior written approval from the Commission staff. In order to obtain this written approval, SDG&E must send a copy of the planned materials to the Commission requesting approval to use the Commission name and/or logo. Notwithstanding the foregoing, the Parties shall disclose their source of funding for the Program by stating prominently on marketing materials that the Program is "funded by California ratepayers under the auspices of the California Public Utilities Commission." 20.2. Use of SDG&E's Names. City must receive prior review and written approval from SDG&E for the use of SDG&E's name or logo on any marketing or other Program materials. City shall allow twenty (20) days for SDG&E review and approval. 20.3. Use of City Name. SDG&E must receive prior written approval from City for use of City's name or logo on any marketing or other Program materials. SDG&E shall allow twenty (20) days for such City review and approval. 21. RIGIIT TO AUDIT City agrees that SDG&E and/or the Commission, or their respective designated representatives, shall have the right to review and to copy any records or supporting documentation pertaining to City's performance of this Agreement or the Authorized Work, during normal business hours, and to allow reasonable access in order to interview any employees of City who might reasonably have information related to such records. Further, City agrees to include a similar right of SDG&E and/or the Commission to audit records and interview staff in any subcontract related to performance of City's Authorized Work or this Agreement. 22. STOP WORK PROCEDURES SDG&E may suspend City's Authorized Work being for good cause, such as safety concerns, fraud, or excessive Customer complaints, by notifying City in writing to suspend its Authorized Work being performed in its service territory. City shall stop work immediately, and may resume its Authorized Work only upon receiving written notice from SDG&E that it may resume its Authorized Work. 17 2010-2012 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION PARTNERSHIP AGREEMENT 6-21 23. MODIFICATIONS Changes to this Agreement shall only be made by mutual agreement of all Parties through a written amendment to this Agreement signed by all Parties. 24. TERM AND TERMINATION 24.1. Term. This Agreement shall be effective as of January 1,2010. The Agreement shall continue in effect until December 31, 2012 ("Term") unless otherwise terminated in accordance with the provisions of Section 24.2 below. 24.2. Termination for Breach. Any Party may terminate this Agreement in the event of a material breach by the other Party of any of the matcrial terms or conditions of this Agreement, provided such breach is not remcdied within sixty (60) days notice to the breaching Party thereof from the non-breaching Party or otherwise cured pursuant to the dispute resolution provisions set forth in Section 14 herein. 24.3. Termination for Convenience. SDG&E and/or the City of Chula Vista shall have the right to terminate this Agreement, at their sole convenience and without first obtaining the other Party's prior consent, by providing at least thirty (30) days' prior written notice to the other Party setting forth the effective date of such termination. 24.4. Effect of Termination. 24.4.1. In the event of termination of this Agreement, the Parties shall be entitled to PGC and/or Gas Surcharge Funds for all Program Expenditures incurred or accrued pursuant to contractual or other legal obligations for Authorized Work up to the effective date of termination of this Agreement, provided that any Quarterly City Reports or other reports, invoices, documents or infonnation required under this Agrecment or by the Commission are submitted in accordance with the terms and conditions of this Agreement. The provisions of this Section 24.4.1 shall be a Party's sole compensation resulting from any termination of this Agreement. 24.4.2. In the event of termination of this Agreement, City shall stop any Authorized Work in progress and take action as directed by SDG&E to bring the Authorized Work to an orderly conclusion, and the Parties shall work cooperatively to facilitate the termination of operations and any applicable contracts for Authorized Work. 18 2010-2012 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION PARTNERSHIP AGREEMENT 6-22 25. WRITTEN NOTICES Any written notice, demand or request required or authorized in connection with this Agreement, shall be deemed properly given if delivered in person or sent by facsimile, nationally recognized overnight courier, or first elass mail, postage prepaid, to the address specified below, or to another address specified in writing by a party as follows: SDG&E: San Diego Gas & Electric Company Julie Ricks 8326 Century Park Court, CP62E San Diego, CA 92123-1530 858-654-8302 telephone 858-654-0311 facsimile City: The City of Chula Vista Michael Meacham 276 Fourth Avenue Chula Vista, CA 91910 619-409-5870 telephone 619-476-5310 facsimile Notices shall be deemed received (a) if personally or hand-delivered, upon the date of delivery to the address of the person to receive such notice if delivered before 5:00 p.m., or otherv.~se on the Business Day following personal delivery; (b) if mailed, three (3) Business Days after the date the notice is postmarked; ( c) if by facsimile, upon electronic confirmation of transmission, followed by telephone notification of transmission by the noticing Party; or (d) if by overnight courier, on the Business Day following delivery to the overnight courier within the time limits set by that courier for next-day delivery. 26. CONTRACTS Each Party shall, at all times, be responsible for its Authorized Work obligations, and acts and omissions of Contractors and persons directly or indirectly employed by such Party for services in connection with the Authorized Work. 27. RELATIONSHIP OF THE PARTIES The Parties shall act in an independent capacity and not as officers or employees or agents of each other. This Agreement is not intended to and does not form any "partnership" within the meaning of the California Uniform Partnership Act of 1994 or otherwise. 28. NON-DISCRIMINATION CLAUSE No Party shall unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of sex, race, color, ancestry, religious creed, national origin, physical disability (including HIV and AIDS), mental disability, medical condition (cancer), age (over 40), marital status, and denial of family care leave. Each Party shall ensure that the evaluation and treatment of its employees and applicants for employment are free from such 19 2010-2012 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION PARTNERSHIP AGREEMENT 6-23 discrimination and harassment, and shall comply with the provisions of the Fair Employment and Housing Act (Government Code Section 12990 (a)-(f) et seq.) and the applicable regulations promulgated thereunder (California Code of Regulations, Title 2, Section 7285 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code Section 12990 (a)-(f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations, are incorporated into this Agreement by reference and made a part hereof as if set forth in full. Each party represents and warrants that it shall include the substance of the nondiscrimination and compliance provisions oftllis clause in all subcontracts for its Authorized Work obligations. 29. COMMISSION AUTHORITY TO MODIFY This Agreement shall at all times be subject to the discretion of the Commission, including, but not limited to, revicw and modifications, excusing a Party's performance hereunder, or termination as the Commission may direct from time to time in the reasonable exercise of its jurisdiction. 30. NON-WAIVER None of thc provisions of this Agreement shall be considered waived by any Party unless sueh waiver is specifically stated in writing. 31. ASSIGNMENT No party shall assign this Agreement or any part or interest thereof, without the prior written consent of the other Party, and any assignment V>iithout such consent shall be void and of no effect. Notwithstanding the foregoing, if SDG&E is requested or required by the Commission to assign its rights and/or delegate its duties hereunder, in whole or in part, such assignment or delegation shall not require City's consent, and SDG&E shall be released from all obligations hereunder arising after the effective date of such assignment, both as principal and as surety. 32. FORCE MAJEURE Failure of a Party to perform its obligations under this Agreement by reason of any of the following shall not constitute an event of default or breach of this Agreement: strikes, picket lines, boycott efforts, earthquakes, fires, floods, war (whether or not declared), revolution, riots, insurrections, acts of God, acts of government (including, without limitation, any agency or department of the United States of America), acts of terrorism, acts of the public enemy, scarcity or rationing of gasoline or other fuel or vital products, inability to obtain materials or labor, or other causes which are reasonably beyond the control of such Party. 33. SEVERABILITY 20 2010-2012 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION PARTNERSHIP AGREEMENT 6-24 . In the event that any of the terms, covenants or conditions of this Agreement, or the application of any such term, covenant or condition, shall be held invalid as to any person or circumstance by any court, regulatory agency, or other regulatory body having jurisdiction, all other terms, covenants, or conditions of this Agreement and their application shall not be affected thereby, but shall remain in full force and effect, unless a court, regulatory agency, or other regulatory body holds that the provisions are not separable from all other provisions of this Agreement. 34. GOVERNING LAW; VENUE This Agreement shall be interpreted, governed, and construed under the laws of the State of California as if executed and to be performed wholly within the State of California. Any action brought to enforce or interpret this Agreement shall be filed in San Diego Counry, California. 35. SECTION HEADINGS Section headings appearing in this Agrecment are for convenience only and shall not be construed as interpretations of text. 36. SURVIVAL Notwithstanding completion or of this Agreement, the Parties shall continue to be bound by the provisions of this Agreement which by their nature or terms survive such completion or termination. Such provisions shall include, but are not limited to, Sections 8, 9, 12, 13, 14, 17, 21,24,34 and 37 of this Agreement 37. ATTORNEYS' FEES Except as otherwise provided herein, in the event of any legal action or other proceeding between the Parties arising out of this Agreement or the transactions contemplated herein, each Party in such legal action or proceeding shall bear its own costs and expenses incurred therein, including reasonable attorneys' fees. 38. COOPERATION Each Party agrees to cooperate with the other Parties in whatever manner is reasonably required to facilitate the successful completion of this Agreement. 39. ENTIRE AGREEMENT This Agreement (including the Exhibits hereto) contains the entire agreement and understanding between the Parties and merges and supersedes all prior agreements, representations and discussions pertaining to the subject matter of this Agreement. 21 2010-2012 CITY OF CHULA VISTA EJ'.'ERGY EFFICIENCY AND CONSERVATION PARTNERSHIP AGREEMENT 6-25 40. COUNTERPARTS This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall be deemed to be one and the same instrument. (Signature page follows) 22 2010-2012 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION PARTNERSHIP AGREEMENT 6-26 IN \V1TNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their duly authorized representatives. CITY: CITY: APPROVED AS TO FORM THR CITY OF CRULA VISTA : James Sandoval itl : City Manager ~ - ~' l_ A 4}.mef. Ba ~~ ~it:(, City Attorney SDG&E: SAN DIEGO GAS & ELECTRIC COMPANY .~S-~ Name: Hal Snyder Title: Vice President, Customer Solutions . APPROVeO AS TO FORM V{1;V\ 6-27 RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING THE 2011 BUDGET TO APPROPRIATE $1,362,997 FROM THE SAN DIEGO GAS & ELECTRIC LOCAL GOVERNMENT PARTNERSHIP TO THE CITY'S ENERGY CONSERVATION FUND TO CONTINUE PROVIDING ENERGY EFFICIENCY PROGRAMS AND SERVICES WHEREAS, since 2006, the City of Chula Vista and San Diego Gas & Electric (SDG&E), under the auspices of the California Public Utilities Commission, have been collaborating in the implementation ofa "Local Government Partnership" program; and WHEREAS, the program, which is designed to reduce the amount of kilowatt- hours (electricity) and therms (gas) consumed by a local community, has matured into a comprehensive and highly-effective initiative which has been recognized statewide as a model for successful collaboration; and WHEREAS, the funding is provided through a "Public Goods Charge" which is a monthly utility bill surcharge on energy consumed by every customer in SDG&E's territory; and WHEREAS, in addition to lowering monthly utility costs, energy eflicieney efforts help to reduce demand for local power generation and contribute to reducing Chula Vista's greenhouse gas emissions; and WHEREAS, in December 2009, the City of Chula Vista and San Diego Gas & Electric (SDG&E) entered into a new 3-year Local Government Partnership agreement to provide $4,088,991 ($1,362,997 per calendar year) to continue and expand these local energy efficiency services in the community (Resolution #2009-284); and WHEREAS, the Conservation & Environmental Services Department continues to promote energy efficiency and conservation in the community through its free energy evaluation program and participation in community outreach events; and WHEREAS, the Sustainable Communities Program, which is administered by the Development Services Department, works to further integrate energy etTiciency into the planning, permitting, and inspection process; and WHEREAS, the 'City's Economic Development Division staff leveraged the Local Government Partnership to secure over $1.2 million in additional federal funding to identify critical energy efficiency opportunities at public and privatc facilities (ex. hospitals, fire stations, shelters) and to design sustainable energy infrastructure within the City's University Planning Area; and 6-28 Resolution No. Page 2 WHEREAS, the Municipal Energy Efficiency Improvements Program, which is administered by Public Works with assistance from the Conservation & Environmental Services Department, supported staff time to expand the City's energy monitoring efforts and to identify energy efficiency and demand response strategies which lower municipal energy consumption and produce cost savings; and WHEREAS, the Local Government Partnership contributcs to reaching the goal of investing $2 million of "Public Goods Charge" funds annually into community energy efficiency programs as outlined in the 2005 SDG&E and City of Chula Vista Memorandum of Understanding; and WHEREAS, in addition, the Partnership supports the goals outlined in the Chula Vista Encrgy Strategy & Action Plan (2001), which prioritized energy managcment options to addrcss citywide dcmand and supply, and the Chula Vista Municipal Building Energy Efficiency Policy (2005), which requires thc incorporation of energy-conserving mcasures into City facilities; and WHEREAS, the Local Government Partnership directly implements numerous Council-approved climatc protection measures - Business Energy & Water Evaluations (Measure #3), Green Building Standards (Mcasure #4), and Community Energy Efficiency & Solar Retrofits (i.e. Home Upgrade, Carbon Downgrade program or Measure #5); and WHEREAS, the Local Government Partnership providcs critical funding to support staff time for encrgy-related programs and policies, but resulting capital improvement projects would be fundcd through extemal sources and would be subject to subsequent Council approval. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista amends the 2011 budget to appropriate $1,362,997 from thc San Diego Gas & Electric Local Government Partnership to the City's Energy Conservation Fund to continue providing energy efficiency programs and services. Presented by Approved as in form by -...-" ,7 \ /:7tV-4?~ Michael T. Meacham Director of Conservation & Env. Services 6-29