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HomeMy WebLinkAboutSOUTHERN CALIFORNIA EDISON COMPANY 49J u 9J l t \ r1 f r. A- 2013 -016 iQUfNEIM GI000Il4 Aa OpAl6Y E D I S O N E O 2010 — 2012 CUSTOMIZED SOLUTIONS AGREEMENT FOR LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIPS Application . • Project Name Santa Ana LED Street Lighting Service Account # 9-0044390 -35. Mu10.Site 193 -12- 0500301418 UPN 10/17/12 Date Received: SCE Customer Information Calculated Approach X Santa Ana COMPANY NAME (Agency /Institution /Local Government) 20 Civic Center Plaza, M -21 Santa Ana /CA 92707 ADDRESS CITY /STATE ZIP CODE Kurt Wiemann Kwiemann @ santa - ana.org CONTACT NAME EMAIL ADDRESS Projects Manager 714 - 647 -5639 TITLE TELEPHONE NO. FAX NO TeX Status: X Government 95- 6000785 Corp. Non -Carp. Exempt, Reason: COMPANY /CORP. FEDERAL TAX ID Authorized Agent COMPANY NAME CORPORATE PARENT NAME (if applicable): ADDRESS CITY /STATE ZIP CODE CONTACT NAME EMAIL ADDRESS TITLE TELEPHONE NO. FAX NO. Tax Status: Corp. Non -Corp. _ Exempt, Reason: COMPANY /CORP. FEDERAL TAX ID Site Information LED Street Lighting Retrofit- Scope #2 SITE NAME SITE I. D.# (if applicable) 521 1/2 W 15th LS3, Multi -Site Santa Ana /CA 92706 SITE ADDRESS CITY /STATE ZIP CODE Kurt Wiemann 714 - 647 -5639 3 -004- 4390 -35, Multi -Site SITE CONTACT NAME CONTACT PHONE # SCE ELECTRIC ACCOUNT(S) # CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 1 OF7 Final Approved Savings and Incentive Estimate SOLUTIONS DESCRIPTION Code AM KW $ Incentive Amount Exterior LED street lighting LT -48371 85,649.00 0.00 $9,421.39 Total Approved Savin slincentive Estimates 85,649.00 0.00 $9,421.39 Incentive Adjustment due to Project Cost Incentive Adjustment due to Project Site Ca Total Estimated Incentive $9,421.39 2010 — 2012 CUSTOMIZED SOLUTIONS AGREEMENT TERMS AND CONDITIONS FOR LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIPS This Customized Solutions Agreement ( "Agreement ") is entered into by Southern California Edison Company ( "SCE ") and the Customer or the Customer's Authorized Agent, as identified on page 1 above (each deemed an "Applicant" for purposes of this Agreement). Applicant agrees to review these terms and conditions. Any implementation of a project hereunder will be deemed to be acceptance by the Applicant of such terms and conditions, and such terms and conditions shall be binding on the Applicant (both Customer and Authorized Agent, if applicable). If these terms and conditions are not acceptable to Applicant, then Applicant must notify SCE and refrain from any implementation of the project, otherwise will proceed at their own risk. SCE and Applicant may be individually referred to as a "Party" and collectively as the "Parties." 1.0 PROJECT DESCRIPTION This Agreement is limited to those projects and /or solutions described in the applicable 2010 -2012 Energy Management Solutions - Incentive Application for Business Customers (together with all forms attached thereto, and referred to herein as the 'Application "). As stated in the Application, SCE shall pay incentives to Applicant, or such other party properly authorized to receive payment, in accordance with the terms and conditions of this Agreement. The Customized Solutions Program ( "Program ") is further described in the 2010 Customized Statewide Procedures Manual for Business ( "Program Manual ") and at www.sce.com /customized solutions. 2.0 DOCUMENTS INCORPORATED BY REFERENCE The following documents are hereby Incorporated by reference and made part of this Agreement: (i) Applicant's completed, signed and submitted Application, (ii) SCE acceptance letter(s) based on the energy saving solutions proposed in the Application, and (iii) the agreement (or memorandum of understanding, as applicable) to jointly deliver the 2010 -12 Energy Efficiency Partnership Program applicable to the Parties (the "Partnership Agreement "). CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 2 OF 7 3.0 ELIGIBILITY Program funding is limited and is available on a first -come, first - served basis. Funds will be reserved only upon both SCE's written approval of the Application and SCE's execution of this Agreement. Projects must meet the following requirements to be eligible for payment of Program incentives ( "Incentive(s) "): (1) Project site must be a nonresidential facility located within SCE's service territory; (2) SCE Customers must pay the Public Goods Charge ( "PGC ") on the SCE electric meter where the energy efficient equipment is installed; (3) Projects will be evaluated using the Calculated Approach and /or the Measured Savings Approach (also known as measurement and verification ( "M &V"); (4) Energy savings and demand reduction resulting from the project must be above and beyond baseline energy performance, which include state - mandated codes, federal- mandated codes, industry- accepted performance standards or other baseline energy performance standards as determined by SCE; (5) Projects must meet all other Program requirements, terms and conditions; (6) Applicant certifies that Applicant will not apply for or receive rebates, incentives, or services covered by this Agreement in an amount greater than the total cost of the project or solution(s) (including labor and materials); and (7) The Applicant certifies that the solutions covered by this Agreement have not and will not receive any funds from any other utility, state or local program funded by the PGC surcharge. 4.0 SUBMITTAL REQUIREMENTS FOR PAYMENT Applicant shall submit to SCE the documents described below prior to being eligible for payment of Incentives. Required documents include, but are not limited to: (1) This Agreement, fully executed and with the attached documents referenced in Item 2.0 above; (2) Complete engineering calculations to demonstrate energy savings and documentation, if applicable (including archival diskette, CD, etc.); (3) Schematic drawings and /or manufacturer specification sheets, if applicable; (4) Invoices and /or documentation to support solution costs, at SCE's request; (5) Project Installation Report; (6) Operating Report, if M &V is required; and (7) Any other documents related to the project, project site, solutions, energy savings or otherwise requested by SCE in its sole discretion, in connection with the Program. 5.0 INSPECTIONS Applicant is solely responsible for ensuring that SCE has reasonable access for all inspections, including but not limited to: (1) Pre - installation equipment inspection to examine the existing /baseline equipment and to check the accuracy of Applicant's equipment survey; (2) Post - installation equipment inspection to check installed equipment and to verify accuracy of Applicant's equipment survey; (3) Post - operation inspection to verify energy savings of the solutions after installed equipment has been operating, if requested by SCE; and (4) Inspection for any other Program - related reason that SCE, in its sole discretion, deems necessary. 6.0 REVIEW AND DISCLAIMER SCE'S AND /OR ITS CONSULTANTS' REVIEW OF THE DESIGN, CONSTRUCTION, OPERATION OR MAINTENANCE OF THE PROJECT OR ENERGY EFFICIENCY SOLUTIONS SHALL NOT CONSTITUTE ANY REPRESENTATION AS TO THE ECONOMIC OR TECHNICAL FEASIBILITY, OPERATIONAL CAPABILITY, OR RELIABILITY OF THE PROJECT OR SOLUTIONS, NOR SHALL THE APPLICANT, IN ANY WAY, MAKE SUCH A REPRESENTATION TO A THIRD PARTY. APPLICANT IS SOLELY RESPONSIBLE FOR THE ECONOMIC AND TECHNICAL FEASIBILITY, CONSTRUCTION, OPERATIONAL CAPABILITY AND RELIABILITY OF APPLICANT'S PROJECT AND SOLUTIONS. SCE MAKES NO WARRANTY, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, USE OR APPLICATION. 7.0 PAYMENTS Payment of Incentives will be made only after all Program requirements are met by Applicant to SCE's sole satisfaction. Payment of Incentives will be made as designated by Customer in Section 8 of the Application. 7.1 SCE retains sole discretion to determine the appropriate baseline values and energy savings calculations used to determine Incentive payments. Incentives shall only be paid on projects that exceed the baseline performance standards applicable when this Agreement is CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 3 OF 7 signed. SCE reserves the right to modify or cancel the Incentive amount if the actual solution installed differs from the installation as set forth in this Agreement. 7.2 The total Incentive payment under the Calculated Savings Approach or Measured Savings Approach shall not exceed the total Incentive in the Final Approved Savings Estimate (as presented on Page 2 of this Agreement). However, projects may (at the discretion of SCE) be eligible for Incentive payments in excess of the Final Approved Savings Estimate if the project results in: (a) increased actual energy savings resulting from the installation of a greater quantity of the approved solutions (as outlined in SCE's acceptance letter); (b) increased actual energy savings resulting from greater efficiencies than estimated (as outlined in the SCE acceptance letter); and /or (c) greater actual project costs than originally estimated. Partnership Incentive levels and Incentive caps shall apply according to the terms of the applicable Partnership Agreement. The total Incentive payment shall not exceed the total project cost as defined in the Program Manual. 7.3 Energy savings for which Incentives are paid cannot exceed the actual electric usage for each SCE Customer service account for which Incentives are being requested. Non -SCE supply, such as cogeneration or deliveries from another commodity supplier, does not qualify as usage from SCE (with the exception of Direct Access customers or customers paying departing load fees for which SCE collects PGC surcharges). 7.4 SCE will make the applicable Incentive payment to the designated payee, in one or more installments, only after all required and /or requested documents have been submitted to, and approved by, SCE, and the appropriate inspection(s) of the project or project site have been completed in accordance with the Program rules set forth in the Program Manual. 7.5 Except as provided below, all projects and /or solutions must be completely installed and fully operational one year from SCE's written project Application approval date to be eligible for Incentive payments. SCE reserves the right to cease making Incentive payment(s), require the return of the total or prorated Incentive payments, and /or terminate this Agreement if the project is not completely installed and fully operational by the applicable date as indicated above, unless an installation extension is granted by SCE. 8.0 PAYMENT DISQUALIFICATION Any Incentives received by Applicant shall be repaid to SCE, in whole or in part, as follows: 8.1 If Customer fails to pay the PGC surcharge throughout the Term of this Agreement. In this event, the total estimated amount of the Incentives shall be prorated and any Incentive payment shall be based on the energy savings that occur during the payment of the PGC surcharge. 8.2 If (1) Customer does not provide SCE with 100% of the related energy benefits specified in this Agreement for the life of the product or for a period of five (5) years from receipt of the Incentive, whichever is less, or (2) the energy benefit to SCE ceases in any way, including but not limited to Customer and /or the project site ceasing to receive electricity from SCE, the solution, equipment and /or project ceasing to function, or Customer ceasing the use of the equipment, solution or project site. Applicant shall refund to SCE a prorated amount of the Incentive dollars based on the actual period of time for which Customer provided the energy benefit as an SCE customer. 8.3 Applicant shall repay any Incentive amounts due to SCE within thirty (30) calendar days of notification by SCE. Repayment is required In accordance with Sections 8.1 and 8.2 above. CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 4 OF 7 SCE shall be entitled to offset against payments owed to Applicant any amount due to SCE that remains unpaid forty (40) calendar days after SCE's written demand for payment. 9.0 TERM AND TERMINATION The term of this Agreement shall commence on the last date that a Party executes this Agreement and shall terminate no later than five (5) years from SCE's written project Installation Report approval date, unless terminated earlier pursuant to this Agreement ( "Term "). 10.0 ASSIGNMENT SCE may assign this Agreement, or its rights and obligations hereunder, directly or indirectly, without prior written consent, provided SCE remains obligated for payments incurred prior to the assignment. Applicant may not assign its rights or delegate its duties without the prior written consent of SCE, which shall not be unreasonably withheld or delayed. If an assignment is requested, Applicant is obligated to provide additional information if requested by SCE. 11.0 PERMITS AND LICENSES Applicant, at its own expense, shall obtain and maintain and cause its contractors and /or subcontractors to obtain and maintain licenses and permits required by federal, state, local, or other relevant governing or regulatory bodies needed to perform its work. Any failure by Applicant or its contractors and /or subcontractors to maintain necessary licenses and permits constitutes a material breach of Applicant's obligations under this Agreement. 12.0 ADVERTISING, MARKETING AND USE OF SCE'S NAME Applicant shall not use SCE's corporate name, trademark, trade name, logo, identity or any affiliation for any reason, including soliciting customers to participate in the project, without SCE's prior written consent. Applicant shall make no representations to its customers on behalf of SCE. 13.0 INDEMNIFICATION To the extent Applicant has (i) executed a Partnership Agreement with SCE and is a direct party thereto, and (ii) such Partnership Agreement contains indemnity provisions covering Applicant's performance under the Program and this Agreement, then such Indemnity provisions shall apply to this Agreement and the remainder of this Section 13 shall have no force and effect. For all other Applicants (including, but not limited to, program participants, contractors, consultants, and others who are not direct parties to a Partnership Agreement with SCE containing such indemnity provisions), the following shall apply: 13.1 Applicant shall indemnify, defend and hold harmless, and release SCE, its affiliates, subsidiaries, parent companies, officers, directors, agents and employees, from and against all claims, demands, losses, damages, costs, expenses, and liability (legal, contractual, or otherwise), which arise from or are in any way connected with any: (i) injury to or death of persons, including but not limited to employees of SCE or Applicant; (ii) injury to property or other interests of SCE, Applicant, or any third party;(iii) violation of local, state, or federal common law, statute, or regulation, including but not limited to environmental laws or regulations; or (iv) strict liability imposed by any law or regulation; so long as such injury, violation, or strict liability (as set forth in (i) - (iv) above) arises from or is in any way connected with Applicant's performance of, or failure to perform, this Agreement, however caused, regardless of any strict liability or negligence of SCE whether active or passive, excepting only such loss, damage, cost, expense, liability, strict liability, or violation of law or regulation that is caused by the sole negligence or willful misconduct of SCE, its officers, managers or employees. 13.2 Applicant acknowledges that any claims, demands, losses, damages, costs, expenses, and legal liability that arise out of, result from, or are in any way connected with the release or spill of any legally designated hazardous material or waste as a result of the work performed under this Agreement are expressly within the scope of this indemnity, and that the costs, expenses, and legal liability for environmental investigations, monitoring, containment, abatement, removal, repair, cleanup, restoration, remedial work, penalties, and fines arising CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 5 OF 7 from strict liability, or violation of any local, state, or federal law or regulation, attorney's fees, disbursements, and other response costs incurred as a result of such releases or spills are expressly within the scope of this indemnity. 13.3 Applicant shall, on SCE's request, defend any action, claim or suit asserting a claim that may be covered by this indemnity. Applicant shall pay all costs and expenses that may be incurred by SCE in enforcing this indemnity, including reasonable attorney's fees. This indemnity shall survive the termination of this Agreement for any reason. 13.4 If this Agreement is assigned pursuant to Section 10.0, Applicant agrees that this indemnification shall continue to apply to SCE and shall apply to the assignee. 14.0 LIMITATION OF LIABILITY SCE shall not be liable for any special, incidental, indirect, or consequential damages, including without limitation, loss of profits or commitments to subcontractors, and any special, incidental, indirect or consequential damages incurred by Applicant. 15.0 WRITTEN NOTICE 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, email, nationally recognized overnight courier, or first class mail, postage prepaid; to the address specified below, or to another address specified in writing by SCE. SCE SCE Offer Manager: Address: City, State, Zip: Fax #: Email: Phone: James Hodge PO Box 800 Rosemead, CA 91770 626- 302 -6126 James.Hodge @sce.com (626) 302 -0654 APPLICANT (CUSTOMER OR AUTHORIZED REPRESENTATIVE) Name: Company: Address: City, State, Zip: Fax #: Email: Phone: Kurt Wiemann City of Santa Ana 20 Civic Center Plaza, M -21 Santa Ana, CA 92707 Kwiemann @Santa - Ana.org 714 - 647 -5639 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 otherwise on the Business Day following personal delivery; (b) if mailed, three Business Days after the date the notice is postmarked; (c) if by facsimile or email, 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. 16.0 CONFLICTS BETWEEN TERMS Should a conflict exist between the main body of this Agreement and the documents incorporated by reference, the main body of this Agreement shall CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 6 OF 7 control. Should a conflict exist In the documents incorporated by reference, the documents shall control in the following order: 1) SCE acceptance letter(s) and Incentive estimate(s) based on solutions approved in the Application; and (2) the Partnership Agreement applicable to Applicant, and (3) Applicant's approved Application(s). Should a conflict exist between an applicable federal, State, or local law, rule, regulation, order or code and this Agreement, the law, rule, regulation, order or code shall control. Varying degrees of stringency among the main body of this Agreement, the documents incorporated by reference, and laws, rules, regulations, orders, or codes are not deemed conflicts, and the most stringent requirement shall control. Each Party shall notify the other Immediately upon the identification of any conflict or inconsistency concerning this Agreement. 17.0 CANCELLATION OF AGREEMENT: SCE may suspend or terminate the Agreement, with cause, upon written notice to the Applicant Identified in Section 15 hereof. SCE may suspend or terminate the Agreement upon written notice to the Applicant if funding for the Program is depleted, or if SCE determines suspension or termination of the Agreement is necessary in order to make changes to the related Program or if SCE is ordered by the CPUC to modify or discontinue a Program and /or any agreements related to a Program. 18.0 MISCELLANEOUS This Agreement shall at all times be subject to such changes or modifications by the CPUC as it may from time to time direct in the exercise of its jurisdiction. This Agreement shall be governed and construed in accordance with the laws of the State of California, without regard to its conflict of laws provisions. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect. This Agreement constitutes the entire agreement and understanding between the Parties as to the subject matter of this Agreement and supersedes all prior agreements, representations, writings and discussions between the Parties, whether oral or written, with respect to the subject matter hereof. No amendment, modification or change to this Agreement shall be binding or effective unless expressly set forth in writing and signed by SCE's representative authorized to execute the Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date set forth below SCE APPLICANT (CUSroM AUTNGniZED AGENT By: By. Di ecter o Prog ams and OperaClone, Title: Chet er E roy E 'cien and Solar Title: Inter.im City Manager Name Printed: Mark Wallenrod Dater ATTIE-8"A% MAMAD, HUIZAR CLERK OF THE COUNCII, Name Kevin O'Rourke Prinked: Date: IM 1 1 20113 CUSTOM [ZED SOLUTIONS CONTRACT- IOGAI.. COVERPiM1511 'I AND INSIFITUTIONAL PARTNERSHIP 7OF7 .J saurecn cusoau EDISON 2010 — 2012 CUSTOMIZED SOLUTIONS AGREEMENT FOR LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIPS Application Project Name Santa Ana LED Street Lighting 3-0044390 -35. PoiWt,SItB Service Account # UPN 193 -12- 0500301418 Date Received. 10/17/12 SCE Customer Informadon Calculated Approach X Santa Ana COMPANY NAME (Agency /Institution /Local Government) 20 Civic Center Plaza, M -21 Santa Ana /CA 92707 ADDRESS CITY /STATE ZIP CODE Kurt Wiemann Kwiemann @ santa - ana.org CONTACT NAME EMAIL ADDRESS Projects Manager 714 - 647 -5639 TITLE TELEPHONE NO. FAX NO Tax Status: Corp. Non -Corp. X Exempt, Reason: Government 95- 6000785 COMPANY /CORP, FEDERAL TAX ID Authorized Agent Information COMPANY NAME CORPORATE PARENT NAME (if applicable): ADDRESS CITY /STATE ZIP CODE CONTACT NAME EMAIL ADDRESS TITLE TELEPHONE NO. FAX NO. Tax Status: Corp. Non -Corp. _ Exempt, Reason: COMPANY /CORP. FEDERAL TAX ID Site Information LED Street Lighting Retrofit- Scope #2 SITE NAME SITE I.D.# (if applicable) 521 1/2 W 15th LS3, Multi -Site Santa Ana /CA 92706 SITE ADDRESS CITY /STATE ZIP CODE Kurt Wiemann 714 - 647 -5639 3 -004- 4390 -35, Multi -Site SITE CONTACT NAME CONTACT PHONE # SCE ELECTRIC ACCOUNT(S) # CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 1 OF 7 Final Approved Savings and Incentive Estimate SOLUTIONS DESCRIPTION Code kWh KW $ Incentive Amount Exterior LED street lighting LT -48371 85,649.00 0.00 $9,421.39 Total Approved Savin slincentive Estimates 85,649.00 0.00 $9,421.39 Incentive Adjustment due to Project Cost Incentive Adjustment due to Project Site Ca Total Estimated Incentive $9,421.39 2010 — 2012 CUSTOMIZED SOLUTIONS AGREEMENT TERMS AND CONDITIONS FOR LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIPS This Customized Solutions Agreement ( "Agreement ") is entered into by Southern California Edison Company ( "SCE ") and the Customer or the Customer's Authorized Agent, as identified on page 1 above (each deemed an "Applicant" for purposes of this Agreement). Applicant agrees to review these terms and conditions. Any implementation of a project hereunder will be deemed to be acceptance by the Applicant of such terms and conditions, and such terms and conditions shall be binding on the Applicant (both Customer and Authorized Agent, if applicable). If these terms and conditions are not acceptable to Applicant, then Applicant must notify SCE and refrain from any implementation of the project, otherwise will proceed at their own risk. SCE and Applicant may be individually referred to as a "Party" and collectively as the "Parties." 1.0 PROJECT DESCRIPTION This Agreement is limited to those projects and /or solutions described in the applicable 2010 -2012 Energy Management Solutions - Incentive Application for Business Customers (together with all forms attached thereto, and referred to herein as the "Application "). As stated in the Application, SCE shall pay incentives to Applicant, or such other party properly authorized to receive payment, in accordance with the terms and conditions of this Agreement. The Customized Solutions Program ( "Program ") is further described in the 2010 Customized Statewide Procedures Manual for Business ( "Program Manual ") and at www.sce.com /customized solutions. 2.0 DOCUMENTS INCORPORATED BY REFERENCE The following documents are hereby Incorporated by reference and made part of this Agreement: (i) Applicant's completed, signed and submitted Application, (ii) SCE acceptance letter(s) based on the energy saving solutions proposed in the Application, and (iii) the agreement (or memorandum of understanding, as applicable) to jointly deliver the 2010 -12 Energy Efficiency Partnership Program applicable to the Parties (the "Partnership Agreement "). CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 2 OF 7 3.0 ELIGIBILITY Program funding is limited and is available on a first -come, first -served basis. Funds will be reserved only upon both SCE's written approval of the Application and SCE's execution of this Agreement. Projects must meet the following requirements to be eligible for payment of Program incentives (Incentive(s) "): (1) Project site must be a nonresidential facility located within SCE's service territory; (2) SCE Customers must pay the Public Goods Charge ( "PGC ") on the SCE electric meter where the energy efficient equipment is installed; (3) Projects will be evaluated using the Calculated Approach and /or the Measured Savings Approach (also known as measurement and verification ( "M &V"); (4) Energy savings and demand reduction resulting from the project must be above and beyond baseline energy performance, which include state - mandated codes, federal- mandated codes, industry- accepted performance standards or other baseline energy performance standards as determined by SCE; (5) Projects must meet all other Program requirements, terms and conditions; (6) Applicant certifies that Applicant will not apply for or receive rebates, incentives, or services covered by this Agreement in an amount greater than the total cost of the project or solution(s) (including labor and materials); and (7) The Applicant certifies that the solutions covered by this Agreement have not and will not receive any funds from any other utility, state or local program funded by the PGC surcharge. 4.0 SUBMITTAL REQUIREMENTS FOR PAYMENT Applicant shall submit to SCE the documents described below prior to being eligible for payment of Incentives. Required documents include, but are not limited to: (1) This Agreement, fully executed and with the attached documents referenced in Item 2.0 above; (2) Complete engineering calculations to demonstrate energy savings and documentation, if applicable (including archival diskette, CD, etc.); (3) Schematic drawings and /or manufacturer specification sheets, if applicable; (4) Invoices and /or documentation to support solution costs, at SCE's request; (5) Project Installation Report; (6) Operating Report, if M &V is required; and (7) Any other documents related to the project, project site, solutions, energy savings or otherwise requested by SCE in its sole discretion, in connection with the Program. 5.0 INSPECTIONS Applicant is solely responsible for ensuring that SCE has reasonable access for all inspections, including but not limited to: (1) Pre - installation equipment inspection to examine the existing /baseline equipment and to check the accuracy of Applicant's equipment survey; (2) Post - installation equipment inspection to check installed equipment and to verify accuracy of Applicant's equipment survey; (3) Post - operation inspection to verify energy savings of the solutions after installed equipment has been operating, if requested by SCE; and (4) Inspection for any other Program - related reason that SCE, in its sole discretion, deems necessary. 6.0 REVIEW AND DISCLAIMER SCE'S AND /OR ITS CONSULTANTS' REVIEW OF THE DESIGN, CONSTRUCTION, OPERATION OR MAINTENANCE OF THE PROJECT OR ENERGY EFFICIENCY SOLUTIONS SHALL NOT CONSTITUTE ANY REPRESENTATION AS TO THE ECONOMIC OR TECHNICAL FEASIBILITY, OPERATIONAL CAPABILITY, OR RELIABILITY OF THE PROJECT OR SOLUTIONS, NOR SHALL THE APPLICANT, IN ANY WAY, MAKE SUCH A REPRESENTATION TO A THIRD PARTY. APPLICANT IS SOLELY RESPONSIBLE FOR THE ECONOMIC AND TECHNICAL FEASIBILITY, CONSTRUCTION, OPERATIONAL CAPABILITY AND RELIABILITY OF APPLICANT'S PROJECT AND SOLUTIONS. SCE MAKES NO WARRANTY, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, USE OR APPLICATION. 7.0 PAYMENTS Payment of Incentives will be made only after all Program requirements are met by Applicant to SCE's sole satisfaction. Payment of Incentives will be made as designated by Customer in Section 8 of the Application. 7.1 SCE retains sole discretion to determine the appropriate baseline values and energy savings calculations used to determine Incentive payments. Incentives shall only be paid on projects that exceed the baseline performance standards applicable when this Agreement is CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 3 OF 7 signed. SCE reserves the right to modify or cancel the Incentive amount if the actual solution installed differs from the installation as set forth in this Agreement. 7.2 The total Incentive payment under the Calculated Savings Approach or Measured Savings Approach shall not exceed the total Incentive in the Final Approved Savings Estimate (as presented on Page 2 of this Agreement). However, projects may (at the discretion of SCE) be eligible for Incentive payments in excess of the Final Approved Savings Estimate if the project results in: (a) increased actual energy savings resulting from the installation of a greater quantity of the approved solutions (as outlined in SCE's acceptance letter); (b) increased actual energy savings resulting from greater efficiencies than estimated (as outlined in the SCE acceptance letter); and /or (c) greater actual project costs than originally estimated. Partnership Incentive levels and Incentive caps shall apply according to the terms of the applicable Partnership Agreement. The total Incentive payment shall not exceed the total project cost as defined in the Program Manual. 7.3 Energy savings for which Incentives are paid cannot exceed the actual electric usage for each SCE Customer service account for which Incentives are being requested. Non -SCE supply, such as cogeneration or deliveries from another commodity supplier, does not qualify as usage from SCE (with the exception of Direct Access customers or customers paying departing load fees for which SCE collects PGC surcharges). 7.4 SCE will make the applicable Incentive payment to the designated payee, in one or more installments, only after all required and /or requested documents have been submitted to, and approved by, SCE, and the appropriate inspection(s) of the project or project site have been completed in accordance with the Program rules set forth in the Program Manual. 7.5 Except as provided below, all projects and /or solutions must be completely installed and fully operational one year from SCE's written project Application approval date to be eligible for Incentive payments. SCE reserves the right to cease making Incentive payment(s), require the return of the total or prorated Incentive payments, and /or terminate this Agreement if the project is not completely installed and fully operational by the applicable date as indicated above, unless an installation extension is granted by SCE. 8.0 PAYMENT DISQUALIFICATION Any Incentives received by Applicant shall be repaid to SCE, in whole or in part, as follows: 8.1 If Customer fails to pay the PGC surcharge throughout the Term of this Agreement. In this event, the total estimated amount of the Incentives shall be prorated and any Incentive payment shall be based on the energy savings that occur during the payment of the PGC surcharge. 8.2 If (1) Customer does not provide SCE with 100% of the related energy benefits specified in this Agreement for the life of the product or for a period of five (5) years from receipt of the Incentive, whichever is less, or (2) the energy benefit to SCE ceases in any way, including but not limited to Customer and /or the project site ceasing to receive electricity from SCE, the solution, equipment and /or project ceasing to function, or Customer ceasing the use of the equipment, solution or project site. Applicant shall refund to SCE a prorated amount of the Incentive dollars based on the actual period of time for which Customer provided the energy benefit as an SCE customer. 8.3 Applicant shall repay any Incentive amounts due to SCE within thirty (30) calendar days of notification by SCE. Repayment is required In accordance with Sections 8.1 and 8.2 above. CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 4 OF 7 SCE shall be entitled to offset against payments owed to Applicant any amount due to SCE that remains unpaid forty (40) calendar days after SCE's written demand for payment. 9.0 TERM AND TERMINATION The term of this Agreement shall commence on the last date that a Party executes this Agreement and shall terminate no later than five (5) years from SCE's written project Installation Report approval date, unless terminated earlier pursuant to this Agreement ( "Term "). 10.0 ASSIGNMENT SCE may assign this Agreement, or its rights and obligations hereunder, directly or indirectly, without prior written consent, provided SCE remains obligated for payments incurred prior to the assignment. Applicant may not assign its rights or delegate its duties without the prior written consent of SCE, which shall not be unreasonably withheld or delayed. If an assignment is requested, Applicant is obligated to provide additional information if requested by SCE. 11.0 PERMITS AND LICENSES Applicant, at its own expense, shall obtain and maintain and cause its contractors and /or subcontractors to obtain and maintain licenses and permits required by federal, state, local, or other relevant governing or regulatory bodies needed to perform its work. Any failure by Applicant or its contractors and /or subcontractors to maintain necessary licenses and permits constitutes a material breach of Applicant's obligations under this Agreement. 12.0 ADVERTISING, MARKETING AND USE OF SCE'S NAME Applicant shall not use SCE's corporate name, trademark, trade name, logo, identity or any affiliation for any reason, including soliciting customers to participate in the project, without SCE's prior written consent. Applicant shall make no representations to its customers on behalf of SCE. 13.0 INDEMNIFICATION To the extent Applicant has (i) executed a Partnership Agreement with SCE and is a direct party thereto, and (ii) such Partnership Agreement contains indemnity provisions covering Applicant's performance under the Program and this Agreement, then such Indemnity provisions shall apply to this Agreement and the remainder of this Section 13 shall have no force and effect. For all other Applicants (including, but not limited to, program participants, contractors, consultants, and others who are not direct parties to a Partnership Agreement with SCE containing such indemnity provisions), the following shall apply: 13.1 Applicant shall indemnify, defend and hold harmless, and release SCE, its affiliates, subsidiaries, parent companies, officers, directors, agents and employees, from and against all claims, demands, losses, damages, costs, expenses, and liability (legal, contractual, or otherwise), which arise from or are in any way connected with any: (i) injury to or death of persons, including but not limited to employees of SCE or Applicant; (ii) injury to property or other interests of SCE, Applicant, or any third party;(iii) violation of local, state, or federal common law, statute, or regulation, including but not limited to environmental laws or regulations; or (iv) strict liability imposed by any law or regulation; so long as such injury, violation, or strict liability (as set forth in (i) - (iv) above) arises from or is in any way connected with Applicant's performance of, or failure to perform, this Agreement, however caused, regardless of any strict liability or negligence of SCE whether active or passive, excepting only such loss, damage, cost, expense, liability, strict liability, or violation of law or regulation that is caused by the sole negligence or willful misconduct of SCE, its officers, managers or employees. 13.2 Applicant acknowledges that any claims, demands, losses, damages, costs, expenses, and legal liability that arise out of, result from, or are in any way connected with the release or spill of any legally designated hazardous material or waste as a result of the work performed under this Agreement are expressly within the scope of this indemnity, and that the costs, expenses, and legal liability for environmental investigations, monitoring, containment, abatement, removal, repair, cleanup, restoration, remedial work, penalties, and fines arising CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 5 OF 7 from strict liability, or violation of any local, state, or federal law or regulation, attorney's fees, disbursements, and other response costs incurred as a result of such releases or spills are expressly within the scope of this indemnity. 13.3 Applicant shall, on SCE's request, defend any action, claim or suit asserting a claim that may be covered by this indemnity. Applicant shall pay all costs and expenses that may be incurred by SCE in enforcing this indemnity, including reasonable attorney's fees. This indemnity shall survive the termination of this Agreement for any reason. 13.4 If this Agreement is assigned pursuant to Section 10.0, Applicant agrees that this indemnification shall continue to apply to SCE and shall apply to the assignee. 14.0 LIMITATION OF LIABILITY SCE shall not be liable for any special, incidental, indirect, or consequential damages, including without limitation, loss of profits or commitments to subcontractors, and any special, incidental, indirect or consequential damages incurred by Applicant. 15.0 WRITTEN NOTICE 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, email, nationally recognized overnight courier, or first class mail, postage prepaid; to the address specified below, or to another address specified in writing by SCE. SCE SCE Offer Manager: Address: City, State, Zip: Fax #: Email: Phone: James Hodge PO Box 800 Rosemead, CA 91770 626- 302 -6126 James.Hodge @sce.com (626) 302 -0654 APPLICANT (CUSTOMER OR AUTHORIZED REPRESENTATIVE) Name: Company: Address: City, State, Zip: Fax #: Email: Phone: Kurt Wiemann City of Santa Ana 20 Civic Center Plaza, M -21 Santa Ana, CA 92707 Kwiemann @Santa - Ana.org 714- 647 -5639 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 otherwise on the Business Day following personal delivery; (b) if mailed, three Business Days after the date the notice is postmarked; (c) if by facsimile or email, 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. 16.0 CONFLICTS BETWEEN TERMS Should a conflict exist between the main body of this Agreement and the documents incorporated by reference, the main body of this Agreement shall CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 6 OF 7 control. Should a conflict exist In the documents Incorporated by reference, the documents shall control in the following order: 1) SCE acceptance letter(s) and Incentive estimate(s) based on solutions approved in the Application; and (2) the Partnership Agreement applicable to Applicant, and (3) Applicant's approved Application(s). Should a conflict exist between an applicable federal, State, or local law, rule, regulation, order or code and this Agreement, the law, rule, regulation, order or code shall control. Varying degrees of stringency among the main body of this Agreement, the documents incorporated by reference, and laws, rules, regulations, orders, or codes are not deemed conflicts, and the most stringent requirement shall control. Each Party shall notify the other Immediately upon the identification of any conflict or inconsistency concerning this Agreement. 17.0 CANCELLATION OF AGREEMENT: SCE may suspend or terminate the Agreement, with cause, upon written notice to the Applicant identified in Section 15 hereof. SCE may suspend or terminate the Agreement upon written notice to the Applicant if funding for the Program is depleted, or If SCE determines suspension or termination of the Agreement is necessary in order to make changes to the related Program or if SCE is ordered by the CPUC to modify or discontinue a Program and /or any agreements related to a Program. 18,0 MISCELLANEOUS This Agreement shall at all times be subject to such changes or modifications by the CPUC as it may from time to time direct in the exercise of its jurisdiction. This Agreement shall be governed and construed in accordance with the laws of the State of California, without regard to its conflict of laws provisions. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect. This Agreement constitutes the entire agreement and understanding between the Parties as to the subject matter of this Agreement and supersedes all prior agreements, representations, writings and discussions between the Parties, whether oral or written, with respect to the subject matter hereof. No amendment, modification or change to this Agreement shall be binding or effective unless expressly set forth in writing and signed by SCE's representative authorized to execute the Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date set forth below 0 Title: Name Printed: Mark Wallenrod APPLICANT CUSTOMER 14UTHORIZED AGENT) By Title: Interim City Manager Name Kevin O'Rourke Printed: RAfi. 1 'I x1113 ATTE1,Vt w C /2ita,,,,ic �� MARIA D. HUIZAR c CLERK OF THE COUNCIL CUSTOUIZEOSOLUTIONS CONTRACT -LOCAL "VFRPi✓iPF ITACID[PIS"TI'I'UTIOPiAL FART Fr RSHIP 7 OF ED150N .J 2010 — 2012 CUSTOMIZED SOLUTIONS AGREEMENT FOR LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIPS Application Project Name LED Street Lighting Retrofit -Scope #4 3-001 - 3270 -55. Molt4Slte Service Account # UPN 193 -12- 0500262965 Date Received. 7/22/13 Calculated Approach X Omer Informatic City of Santa Ana COMPANY NAME (Agency /Institution /Local Government) 20 Civic Center Plaza M -21 ADDRESS Kurt Wiemann CONTACT NAME Projects Manager TITLE Tax Status: Corp. _ Non -Corp. V Exempt, Reason Authorized .- COMPANY NAME ADDRESS CONTACT NAME TITLE Tax Status: Corp. _ Non -Corp. _ Exempt. Reason. LED Street Lighting Retrofit #4 SITE NAME 5th/ Newhope, Multi -Site SITE ADDRESS Kurt Wiemann 714 - 847 -5639 SITE CONTACT NAME _ Santa Ana /CA 92702 CITY /STATE ZIP CODE Kwiemann @ santa- ana.org EMAIL ADDRESS _ 714- 647 -5639 TELEPHONE NO. FAX NO Government 95- 6000785 COMPANY /CORP. FEDERAL TAX ID CORPORATE PARENT NAME (if applicable): CITY /STATE ZIP CODE EMAIL ADDRESS TELEPHONE NO. FAX NO. COMPANY /CORP. FEDERAL TAX ID SITE I.D.# (if applicable) _ Santa Ana /CA 92701 CITY /STATE ZIP CODE 3- 001 - 3270 -57, Multi -Site CONTACT PHONE # SCE ELECTRIC ACCOUNT(S) # CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 1 OF 7 Final Approved Savings and Incentive Estimate 5 ©I tCOfI[5 QSCRC tQC,T � , LT -48371 ra 0.00 -: ,. $8,483.53 Exterior LED Street Lighting 77,123.00 Total Approved Savings/incentive Estimates 77,123.00 0.00 $8,483.53 Incentive Adjustment due to Project Cost Incentive Adjustment due to Project Site Ca Total Estimated Incentive $8,483.53 2010 — 2012 CUSTOMIZED SOLUTIONS AGREEMENT TERMS AND CONDITIONS FOR LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIPS This Customized Solutions Agreement ( "Agreement ") is entered into by Southern California Edison Company ( "SCE ") and the Customer or the Customer's Authorized Agent, as identified on page 1 above (each deemed an "Applicant" for purposes of this Agreement). Applicant agrees to review these terms and conditions. Any implementation of a project hereunder will be deemed to be acceptance by the Applicant of such terms and conditions, and such terms and conditions shall be binding on the Applicant (both Customer and Authorized Agent, if applicable). If these terms and conditions are not acceptable to Applicant, then Applicant must notify SCE and refrain from any implementation of the project, otherwise will proceed at their own risk. SCE and Applicant may be individually referred to as a "Party" and collectively as the "Parties." 1.0 PROJECT DESCRIPTION This Agreement is limited to those projects and /or solutions described in the applicable 2010 -2012 Energy Management Solutions - Incentive Application for Business Customers (together with all forms attached thereto, and referred to herein as the "Application "). As stated in the Application, SCE shall pay incentives to Applicant, or such other party properly authorized to receive payment, in accordance with the terms and conditions of this Agreement. The Customized Solutions Program ( "Program ") is further described in the 2010 Customized Statewide Procedures Manual for Business ( "Program Manual ") and at www.sce.com /customized solutions. 2.0 DOCUMENTS INCORPORATED BY REFERENCE The following documents are hereby Incorporated by reference and made part of this Agreement: (i) Applicant's completed, signed and submitted Application, (ii) SCE acceptance letter(s) based on the energy saving solutions proposed in the Application, and (iii) the agreement (or memorandum of understanding, as applicable) to jointly deliver the 2010 -12 Energy Efficiency Partnership Program applicable to the Parties (the "Partnership Agreement "). CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 2 OF 7 3.0 ELIGIBILITY Program funding is limited and is available on a first -come, first - served basis. Funds will be reserved only upon both SCE's written approval of the Application and SCE's execution of this Agreement. Projects must meet the following requirements to be eligible for payment of Program incentives ( "Incentive(s) "): (1) Project site must be a nonresidential facility located within SCE's service territory; (2) SCE Customers must pay the Public Goods Charge ( "PGC ") on the SCE electric meter where the energy efficient equipment is installed; (3) Projects will be evaluated using the Calculated Approach and /or the Measured Savings Approach (also known as measurement and verification ( "M &V"); (4) Energy savings and demand reduction resulting from the project must be above and beyond baseline energy performance, which include state - mandated codes, federal- mandated codes, industry- accepted performance standards or other baseline energy performance standards as determined by SCE; (5) Projects must meet all other Program requirements, terms and conditions; (6) Applicant certifies that Applicant will not apply for or receive rebates, incentives, or services covered by this Agreement in an amount greater than the total cost of the project or solution(s) (including labor and materials); and (7) The Applicant certifies that the solutions covered by this Agreement have not and will not receive any funds from any other utility, state or local program funded by the PGC surcharge. 4.0 SUBMITTAL REQUIREMENTS FOR PAYMENT Applicant shall submit to SCE the documents described below prior to being eligible for payment of Incentives. Required documents include, but are not limited to: (1) This Agreement, fully executed and with the attached documents referenced in Item 2.0 above; (2) Complete engineering calculations to demonstrate energy savings and documentation, if applicable (including archival diskette, CD, etc.); (3) Schematic drawings and /or manufacturer specification sheets, if applicable; (4) Invoices and /or documentation to support solution costs, at SCE's request; (5) Project Installation Report; (6) Operating Report, if M &V is required; and (7) Any other documents related to the project, project site, solutions, energy savings or otherwise requested by SCE in its sole discretion, in connection with the Program. 5.0 INSPECTIONS Applicant is solely responsible for ensuring that SCE has reasonable access for all inspections, including but not limited to: (1) Pre - installation equipment inspection to examine the existing /baseline equipment and to check the accuracy of Applicant's equipment survey; (2) Post - installation equipment inspection to check installed equipment and to verify accuracy of Applicant's equipment survey; (3) Post - operation inspection to verify energy savings of the solutions after installed equipment has been operating, if requested by SCE; and (4) Inspection for any other Program - related reason that SCE, in its sole discretion, deems necessary. 6.0 REVIEW AND DISCLAIMER SCE'S AND /OR ITS CONSULTANTS' REVIEW OF THE DESIGN, CONSTRUCTION, OPERATION OR MAINTENANCE OF THE PROJECT OR ENERGY EFFICIENCY SOLUTIONS SHALL NOT CONSTITUTE ANY REPRESENTATION AS TO THE ECONOMIC OR TECHNICAL FEASIBILITY, OPERATIONAL CAPABILITY, OR RELIABILITY OF THE PROJECT OR SOLUTIONS, NOR SHALL THE APPLICANT, IN ANY WAY, MAKE SUCH A REPRESENTATION TO A THIRD PARTY. APPLICANT IS SOLELY RESPONSIBLE FOR THE ECONOMIC AND TECHNICAL FEASIBILITY, CONSTRUCTION, OPERATIONAL CAPABILITY AND RELIABILITY OF APPLICANT'S PROJECT AND SOLUTIONS. SCE MAKES NO WARRANTY, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, USE OR APPLICATION. 7.0 PAYMENTS Payment of Incentives will be made only after all Program requirements are met by Applicant to SCE's sole satisfaction. Payment of Incentives will be made as designated by Customer in Section 8 of the Application. 7.1 SCE retains sole discretion to determine the appropriate baseline values and energy savings calculations used to determine Incentive payments. Incentives shall only be paid on projects that exceed the baseline performance standards applicable when this Agreement is CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 3 OF 7 signed. SCE reserves the right to modify or cancel the Incentive amount if the actual solution installed differs from the installation as set forth in this Agreement. 7.2 The total Incentive payment under the Calculated Savings Approach or Measured Savings Approach shall not exceed the total Incentive in the Final Approved Savings Estimate (as presented on Page 2 of this Agreement). However, projects may (at the discretion of SCE) be eligible for Incentive payments in excess of the Final Approved Savings Estimate if the project results in: (a) increased actual energy savings resulting from the installation of a greater quantity of the approved solutions (as outlined in SCE's acceptance letter); (b) increased actual energy savings resulting from greater efficiencies than estimated (as outlined in the SCE acceptance letter); and /or (c) greater actual project costs than originally estimated. Partnership Incentive levels and Incentive caps shall apply according to the terms of the applicable Partnership Agreement. The total Incentive payment shall not exceed the total project cost as defined in the Program Manual. 7.3 Energy savings for which Incentives are paid cannot exceed the actual electric usage for each SCE Customer service account for which Incentives are being requested. Non -SCE supply, such as cogeneration or deliveries from another commodity supplier, does not qualify as usage from SCE (with the exception of Direct Access customers or customers paying departing load fees for which SCE collects PGC surcharges). 7.4 SCE will make the applicable Incentive payment to the designated payee, in one or more installments, only after all required and /or requested documents have been submitted to, and approved by, SCE, and the appropriate inspection(s) of the project or project site have been completed in accordance with the Program rules set forth in the Program Manual. 7.5 Except as provided below, all projects and /or solutions must be completely installed and fully operational one year from SCE's written project Application approval date to be eligible for Incentive payments. SCE reserves the right to cease making Incentive payment(s), require the return of the total or prorated Incentive payments, and /or terminate this Agreement if the project is not completely installed and fully operational by the applicable date as indicated above, unless an installation extension is granted by SCE. 8.0 PAYMENT DISQUALIFICATION Any Incentives received by Applicant shall be repaid to SCE, in whole or in part, as follows: 8.1 If Customer fails to pay the PGC surcharge throughout the Term of this Agreement. In this event, the total estimated amount of the Incentives shall be prorated and any Incentive payment shall be based on the energy savings that occur during the payment of the PGC surcharge. 8.2 If (1) Customer does not provide SCE with 100% of the related energy benefits specified in this Agreement for the life of the product or for a period of five (5) years from receipt of the Incentive, whichever is less, or (2) the energy benefit to SCE ceases in any way, including but not limited to Customer and /or the project site ceasing to receive electricity from SCE, the solution, equipment and /or project ceasing to function, or Customer ceasing the use of the equipment, solution or project site. Applicant shall refund to SCE a prorated amount of the Incentive dollars based on the actual period of time for which Customer provided the energy benefit as an SCE customer. 8.3 Applicant shall repay any Incentive amounts due to SCE within thirty (30) calendar days of notification by SCE. Repayment is required In accordance with Sections 8.1 and 8.2 above. CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 4 OF 7 SCE shall be entitled to offset against payments owed to Applicant any amount due to SCE that remains unpaid forty (40) calendar days after SCE's written demand for payment. 9.0 TERM AND TERMINATION The term of this Agreement shall commence on the last date that a Party executes this Agreement and shall terminate no later than five (5) years from SCE's written project Installation Report approval date, unless terminated earlier pursuant to this Agreement ( "Term "). 10.0 ASSIGNMENT SCE may assign this Agreement, or its rights and obligations hereunder, directly or indirectly, without prior written consent, provided SCE remains obligated for payments incurred prior to the assignment. Applicant may not assign its rights or delegate its duties without the prior written consent of SCE, which shall not be unreasonably withheld or delayed. If an assignment is requested, Applicant is obligated to provide additional information if requested by SCE. 11.0 PERMITS AND LICENSES Applicant, at its own expense, shall obtain and maintain and cause its contractors and /or subcontractors to obtain and maintain licenses and permits required by federal, state, local, or other relevant governing or regulatory bodies needed to perform its work. Any failure by Applicant or its contractors and /or subcontractors to maintain necessary licenses and permits constitutes a material breach of Applicant's obligations under this Agreement. 12.0 ADVERTISING, MARKETING AND USE OF SCE'S NAME Applicant shall not use SCE's corporate name, trademark, trade name, logo, identity or any affiliation for any reason, including soliciting customers to participate in the project, without SCE's prior written consent. Applicant shall make no representations to its customers on behalf of SCE. 13.0 INDEMNIFICATION To the extent Applicant has (i) executed a Partnership Agreement with SCE and is a direct party thereto, and (ii) such Partnership Agreement contains indemnity provisions covering Applicant's performance under the Program and this Agreement, then such Indemnity provisions shall apply to this Agreement and the remainder of this Section 13 shall have no force and effect. For all other Applicants (including, but not limited to, program participants, contractors, consultants, and others who are not direct parties to a Partnership Agreement with SCE containing such indemnity provisions), the following shall apply: 13.1 Applicant shall indemnify, defend and hold harmless, and release SCE, its affiliates, subsidiaries, parent companies, officers, directors, agents and employees, from and against all claims, demands, losses, damages, costs, expenses, and liability (legal, contractual, or otherwise), which arise from or are in any way connected with any: (i) injury to or death of persons, including but not limited to employees of SCE or Applicant; (ii) injury to property or other interests of SCE, Applicant, or any third party;(iii) violation of local, state, or federal common law, statute, or regulation, including but not limited to environmental laws or regulations; or (iv) strict liability imposed by any law or regulation; so long as such injury, violation, or strict liability (as set forth in (i) - (iv) above) arises from or is in any way connected with Applicant 's performance of, or failure to perform, this Agreement, however caused, regardless of any strict liability or negligence of SCE whether active or passive, excepting only such loss, damage, cost, expense, liability, strict liability, or violation of law or regulation that is caused by the sole negligence or willful misconduct of SCE, its officers, managers or employees. 13.2 Applicant acknowledges that any claims, demands, losses, damages, costs, expenses, and legal liability that arise out of, result from, or are in any way connected with the release or spill of any legally designated hazardous material or waste as a result of the work performed under this Agreement are expressly within the scope of this indemnity, and that the costs, expenses, and legal liability for environmental investigations, monitoring, containment, abatement, removal, repair, cleanup, restoration, remedial work, penalties, and fines arising CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 5 OF 7 from strict liability, or violation of any local, state, or federal law or regulation, attorney's fees, disbursements, and other response costs incurred as a result of such releases or spills are expressly within the scope of this indemnity. 13.3 Applicant shall, on SCE's request, defend any action, claim or suit asserting a claim that may be covered by this indemnity. Applicant shall pay all costs and expenses that may be incurred by SCE in enforcing this indemnity, including reasonable attorney's fees. This indemnity shall survive the termination of this Agreement for any reason. 13.4 If this Agreement is assigned pursuant to Section 10.0, Applicant agrees that this indemnification shall continue to apply to SCE and shall apply to the assignee. 14.0 LIMITATION OF LIABILITY SCE shall not be liable for any special, incidental, indirect, or consequential damages, including without limitation, loss of profits or commitments to subcontractors, and any special, incidental, indirect or consequential damages incurred by Applicant. 15.0 WRITTEN NOTICE 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, email, nationally recognized overnight courier, or first class mail, postage prepaid; to the address specified below, or to another address specified in writing by SCE. SCE SCE Offer Manager: Address: City, State, Zip: Fax #: Email: Phone: James Hodge PO Box 800 Rosemead, CA 91770 (626) 302 -6126 JAMES.HODGE @SCE.COM (626) 302 -0654 APPLICANT (CUSTOMER OR AUTHORIZED REPRESENTATIVE) Name: Company: Address: City, State, Zip: Fax #: Email: Phone: Kurt Wiemann City of Santa Ana 20 Civic Center Plaza M -21 Santa Ana, CA 92702 Kwiemann @santa - ana.org 714 - 647 -5639 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 otherwise on the Business Day following personal delivery; (b) if mailed, three Business Days after the date the notice is postmarked; (c) if by facsimile or email, 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. 16.0 CONFLICTS BETWEEN TERMS Should a conflict exist between the main body of this Agreement and the documents incorporated by reference, the main body of this Agreement shall CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 6 OF 7 control. Should a conflict exist In the documents Incorporated by reference, the documents shall control in the following order: 1) SCE acceptance letter(s) and Incentive estimate(s) based on solutions approved in the Application; and (2) the Partnership Agreement applicable to Applicant, and (3) Applicant's approved Application(s). Should a conflict exist between an applicable federal, State, or local law, rule, regulation, order or code and this Agreement, the law, rule, regulation, order or code shall control. Varying degrees of stringency among the main body of this Agreement, the documents incorporated by reference, and laws, rules, regulations, orders, or codes are not deemed conflicts, and the most stringent requirement shall control. Each Party shall notify the other Immediately upon the identification of any conflict or inconsistency concerning this Agreement. 17.0 CANCELLATION OF AGREEMENT: SCE may suspend or terminate the Agreement, with cause, upon written notice to the Applicant identified in Section 15 hereof. SCE may suspend or terminate the Agreement upon written notice to the Applicant if funding for the Program is depleted, or If SCE determines suspension or termination of the Agreement is necessary in order to make changes to the related Program or if SCE is ordered by the CPUC to modify or discontinue a Program and /or any agreements related to a Program. 18,0 MISCELLANEOUS This Agreement shall at all times be subject to such changes or modifications by the CPUC as it may from time to time direct in the exercise of its jurisdiction. This Agreement shall be governed and construed in accordance with the laws of the State of California, without regard to its conflict of laws provisions. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect. This Agreement constitutes the entire agreement and understanding between the Parties as to the subject matter of this Agreement and supersedes all prior agreements, representations, writings and discussions between the Parties, whether oral or written, with respect to the subject matter hereof. No amendment, modification or change to this Agreement shall be binding or effective unless expressly set forth in writing and signed by SCE's representative authorized to execute the Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date set forth below 0 Title: Name Printed: Mark Wallenrod APPLICANT CUSTOMER 14UTHORIZED AGENT) By Title: Interim City Manager Name Kevin O'Rourke Printed: RAfi. 1 'I x1113 ATTE1,Vt w C /2ita,,,,ic �� MARIA D. HUIZAR c CLERK OF THE COUNCIL CUSTOUIZEOSOLUTIONS CONTRACT -LOCAL "VFRPi✓iPF ITACID[PIS"TI'I'UTIOPiAL FART Fr RSHIP 7 OF .J EDISON Ai aA11AY �MIIlK�IXM.4� 6e7n� 2010 – 2012 CUSTOMIZED SOLUTIONS AGREEMENT FOR LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIPS Application LED Street Lighting Retrofit -Scope #4 Project Name 3-001- 3270 -55, MW &Site Service Account # 193 -12- 0500262965 UPN Date Received: 7/22/13 SCE Customer information Calculated Approach X City of Santa Ana COMPANY NAME (Agency /Institution /Local Government) 20 Civic Center Plaza M -21 Santa Ana /CA 92702 ADDRESS CITY /STATE ZIP CODE Kurt Wiemann Kwiemann @ santa- ana.org CONTACT NAME EMAIL ADDRESS Projects Manager 714 - 647 -5639 TITLE TELEPHONE NO. FAX NO Tax Status Corp. . Non -Corp. X Exempt, Reason: overnment 95- 6000785 COMPANY /CORP. FEDERAL TAX ID Authorized Agent COMPANY NAME CORPORATE PARENT NAME (if applicable): ADDRESS CITY /STATE ZIP CODE CONTACT NAME EMAIL ADDRESS TITLE TELEPHONE NO. FAX NO. Tax Status: Corp. Non -Corp. _ Exempt, Reason: Site Information COMPANY /CORP. FEDERAL TAX ID — LED Street Lighting Retrofit #4 SITE NAME SITE I.D.# (if applicable) 5th/ Newhope, Multi -Site Santa Ana /CA 92701 SITE ADDRESS CITY /STATE ZIP CODE Kurt Wiemann 714 - 847 -5639 3 -001- 3270 -57, Multi -Site SITE CONTACT NAME CONTACT PHONE # SCE ELECTRIC ACCOUNT(S) # CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 1 OF 7 Final Approved Savings and Incentive Estimate S ©trlCSQESC!'�tRTlt3li YVEY (=." .' 77,123.00 -k'? v+ Sr0 =; 0.00 �,. � +,.: ...: . ._$ vsirrrCttlrrt�_-, Exterior LED Street Lighting LT -48371 $8,483.53 Total Approved Savings/Incentive Estimates 77,123.00 0.00 $8,483.53 Incentive Adjustment due to Project Cost Incentive Adjustment due to Project Site Ca Total Estimated Incentive $8,483.53 2010 — 2012 CUSTOMIZED SOLUTIONS AGREEMENT TERMS AND CONDITIONS FOR LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIPS This Customized Solutions Agreement ( "Agreement ") is entered into by Southern California Edison Company ( "SCE ") and the Customer or the Customer's Authorized Agent, as identified on page 1 above (each deemed an "Applicant" for purposes of this Agreement). Applicant agrees to review these terms and conditions. Any implementation of a project hereunder will be deemed to be acceptance by the Applicant of such terms and conditions, and such terms and conditions shall be binding on the Applicant (both Customer and Authorized Agent, if applicable). If these terms and conditions are not acceptable to Applicant, then Applicant must notify SCE and refrain from any implementation of the project, otherwise will proceed at their own risk. SCE and Applicant may be individually referred to as a "Party" and collectively as the "Parties." 1.0 PROJECT DESCRIPTION This Agreement is limited to those projects and /or solutions described in the applicable 2010 -2012 Energy Management Solutions - Incentive Application for Business Customers (together with all forms attached thereto, and referred to herein as the "Application "). As stated in the Application, SCE shall pay incentives to Applicant, or such other party properly authorized to receive payment, in accordance with the terms and conditions of this Agreement. The Customized Solutions Program ( "Program ") is further described in the 2010 Customized Statewide Procedures Manual for Business ( "Program Manual ") and at www.sce.com /customized solutions. 2.0 DOCUMENTS INCORPORATED BY REFERENCE The following documents are hereby Incorporated by reference and made part of this Agreement: (i) Applicant's completed, signed and submitted Application, (ii) SCE acceptance letter(s) based on the energy saving solutions proposed in the Application, and (iii) the agreement (or memorandum of understanding, as applicable) to jointly deliver the 2010 -12 Energy Efficiency Partnership Program applicable to the Parties (the "Partnership Agreement "). CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 2 OF 7 3.0 ELIGIBILITY Program funding is limited and is available on a first -come, first - served basis. Funds will be reserved only upon both SCE's written approval of the Application and SCE's execution of this Agreement. Projects must meet the following requirements to be eligible for payment of Program incentives ( "Incentive(s) "): (1) Project site must be a nonresidential facility located within SCE's service territory; (2) SCE Customers must pay the Public Goods Charge ( "PGC ") on the SCE electric meter where the energy efficient equipment is installed; (3) Projects will be evaluated using the Calculated Approach and /or the Measured Savings Approach (also known as measurement and verification ( "M &V"); (4) Energy savings and demand reduction resulting from the project must be above and beyond baseline energy performance, which include state - mandated codes, federal- mandated codes, industry- accepted performance standards or other baseline energy performance standards as determined by SCE; (5) Projects must meet all other Program requirements, terms and conditions; (6) Applicant certifies that Applicant will not apply for or receive rebates, incentives, or services covered by this Agreement in an amount greater than the total cost of the project or solution(s) (including labor and materials); and (7) The Applicant certifies that the solutions covered by this Agreement have not and will not receive any funds from any other utility, state or local program funded by the PGC surcharge. 4.0 SUBMITTAL REQUIREMENTS FOR PAYMENT Applicant shall submit to SCE the documents described below prior to being eligible for payment of Incentives. Required documents include, but are not limited to: (1) This Agreement, fully executed and with the attached documents referenced in Item 2.0 above; (2) Complete engineering calculations to demonstrate energy savings and documentation, if applicable (including archival diskette, CD, etc.); (3) Schematic drawings and /or manufacturer specification sheets, if applicable; (4) Invoices and /or documentation to support solution costs, at SCE's request; (5) Project Installation Report; (6) Operating Report, if M &V is required; and (7) Any other documents related to the project, project site, solutions, energy savings or otherwise requested by SCE in its sole discretion, in connection with the Program. 5.0 INSPECTIONS Applicant is solely responsible for ensuring that SCE has reasonable access for all inspections, including but not limited to: (1) Pre - installation equipment inspection to examine the existing /baseline equipment and to check the accuracy of Applicant's equipment survey; (2) Post - installation equipment inspection to check installed equipment and to verify accuracy of Applicant's equipment survey; (3) Post - operation inspection to verify energy savings of the solutions after installed equipment has been operating, if requested by SCE; and (4) Inspection for any other Program - related reason that SCE, in its sole discretion, deems necessary. 6.0 REVIEW AND DISCLAIMER SCE'S AND /OR ITS CONSULTANTS' REVIEW OF THE DESIGN, CONSTRUCTION, OPERATION OR MAINTENANCE OF THE PROJECT OR ENERGY EFFICIENCY SOLUTIONS SHALL NOT CONSTITUTE ANY REPRESENTATION AS TO THE ECONOMIC OR TECHNICAL FEASIBILITY, OPERATIONAL CAPABILITY, OR RELIABILITY OF THE PROJECT OR SOLUTIONS, NOR SHALL THE APPLICANT, IN ANY WAY, MAKE SUCH A REPRESENTATION TO A THIRD PARTY. APPLICANT IS SOLELY RESPONSIBLE FOR THE ECONOMIC AND TECHNICAL FEASIBILITY, CONSTRUCTION, OPERATIONAL CAPABILITY AND RELIABILITY OF APPLICANT'S PROJECT AND SOLUTIONS. SCE MAKES NO WARRANTY, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, USE OR APPLICATION. 7.0 PAYMENTS Payment of Incentives will be made only after all Program requirements are met by Applicant to SCE's sole satisfaction. Payment of Incentives will be made as designated by Customer in Section 8 of the Application. 7.1 SCE retains sole discretion to determine the appropriate baseline values and energy savings calculations used to determine Incentive payments. Incentives shall only be paid on projects that exceed the baseline performance standards applicable when this Agreement is CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 3 OF 7 signed. SCE reserves the right to modify or cancel the Incentive amount if the actual solution installed differs from the installation as set forth in this Agreement. 7.2 The total Incentive payment under the Calculated Savings Approach or Measured Savings Approach shall not exceed the total Incentive in the Final Approved Savings Estimate (as presented on Page 2 of this Agreement). However, projects may (at the discretion of SCE) be eligible for Incentive payments in excess of the Final Approved Savings Estimate if the project results in: (a) increased actual energy savings resulting from the installation of a greater quantity of the approved solutions (as outlined in SCE's acceptance letter); (b) increased actual energy savings resulting from greater efficiencies than estimated (as outlined in the SCE acceptance letter); and /or (c) greater actual project costs than originally estimated. Partnership Incentive levels and Incentive caps shall apply according to the terms of the applicable Partnership Agreement. The total Incentive payment shall not exceed the total project cost as defined in the Program Manual. 7.3 Energy savings for which Incentives are paid cannot exceed the actual electric usage for each SCE Customer service account for which Incentives are being requested. Non -SCE supply, such as cogeneration or deliveries from another commodity supplier, does not qualify as usage from SCE (with the exception of Direct Access customers or customers paying departing load fees for which SCE collects PGC surcharges). 7.4 SCE will make the applicable Incentive payment to the designated payee, in one or more installments, only after all required and /or requested documents have been submitted to, and approved by, SCE, and the appropriate inspection(s) of the project or project site have been completed in accordance with the Program rules set forth in the Program Manual. 7.5 Except as provided below, all projects and /or solutions must be completely installed and fully operational one year from SCE's written project Application approval date to be eligible for Incentive payments. SCE reserves the right to cease making Incentive payment(s), require the return of the total or prorated Incentive payments, and /or terminate this Agreement if the project is not completely installed and fully operational by the applicable date as indicated above, unless an installation extension is granted by SCE. 8.0 PAYMENT DISQUALIFICATION Any Incentives received by Applicant shall be repaid to SCE, in whole or in part, as follows: 8.1 If Customer fails to pay the PGC surcharge throughout the Term of this Agreement. In this event, the total estimated amount of the Incentives shall be prorated and any Incentive payment shall be based on the energy savings that occur during the payment of the PGC surcharge. 8.2 If (1) Customer does not provide SCE with 100% of the related energy benefits specified in this Agreement for the life of the product or for a period of five (5) years from receipt of the Incentive, whichever is less, or (2) the energy benefit to SCE ceases in any way, including but not limited to Customer and /or the project site ceasing to receive electricity from SCE, the solution, equipment and /or project ceasing to function, or Customer ceasing the use of the equipment, solution or project site. Applicant shall refund to SCE a prorated amount of the Incentive dollars based on the actual period of time for which Customer provided the energy benefit as an SCE customer. 8.3 Applicant shall repay any Incentive amounts due to SCE within thirty (30) calendar days of notification by SCE. Repayment is required In accordance with Sections 8.1 and 8.2 above. CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 4 OF 7 SCE shall be entitled to offset against payments owed to Applicant any amount due to SCE that remains unpaid forty (40) calendar days after SCE's written demand for payment. 9.0 TERM AND TERMINATION The term of this Agreement shall commence on the last date that a Party executes this Agreement and shall terminate no later than five (5) years from SCE's written project Installation Report approval date, unless terminated earlier pursuant to this Agreement ( "Term "). 10.0 ASSIGNMENT SCE may assign this Agreement, or its rights and obligations hereunder, directly or indirectly, without prior written consent, provided SCE remains obligated for payments incurred prior to the assignment. Applicant may not assign its rights or delegate its duties without the prior written consent of SCE, which shall not be unreasonably withheld or delayed. If an assignment is requested, Applicant is obligated to provide additional information if requested by SCE. 11.0 PERMITS AND LICENSES Applicant, at its own expense, shall obtain and maintain and cause its contractors and /or subcontractors to obtain and maintain licenses and permits required by federal, state, local, or other relevant governing or regulatory bodies needed to perform its work. Any failure by Applicant or its contractors and /or subcontractors to maintain necessary licenses and permits constitutes a material breach of Applicant's obligations under this Agreement. 12.0 ADVERTISING, MARKETING AND USE OF SCE'S NAME Applicant shall not use SCE's corporate name, trademark, trade name, logo, identity or any affiliation for any reason, including soliciting customers to participate in the project, without SCE's prior written consent. Applicant shall make no representations to its customers on behalf of SCE. 13.0 INDEMNIFICATION To the extent Applicant has (i) executed a Partnership Agreement with SCE and is a direct party thereto, and (ii) such Partnership Agreement contains indemnity provisions covering Applicant's performance under the Program and this Agreement, then such Indemnity provisions shall apply to this Agreement and the remainder of this Section 13 shall have no force and effect. For all other Applicants (including, but not limited to, program participants, contractors, consultants, and others who are not direct parties to a Partnership Agreement with SCE containing such indemnity provisions), the following shall apply: 13.1 Applicant shall indemnify, defend and hold harmless, and release SCE, its affiliates, subsidiaries, parent companies, officers, directors, agents and employees, from and against all claims, demands, losses, damages, costs, expenses, and liability (legal, contractual, or otherwise), which arise from or are in any way connected with any: (i) injury to or death of persons, including but not limited to employees of SCE or Applicant; (ii) injury to property or other interests of SCE, Applicant, or any third party;(iii) violation of local, state, or federal common law, statute, or regulation, including but not limited to environmental laws or regulations; or (iv) strict liability imposed by any law or regulation; so long as such injury, violation, or strict liability (as set forth in (i) - (iv) above) arises from or is in any way connected with Applicant's performance of, or failure to perform, this Agreement, however caused, regardless of any strict liability or negligence of SCE whether active or passive, excepting only such loss, damage, cost, expense, liability, strict liability, or violation of law or regulation that is caused by the sole negligence or willful misconduct of SCE, its officers, managers or employees. 13.2 Applicant acknowledges that any claims, demands, losses, damages, costs, expenses, and legal liability that arise out of, result from, or are in any way connected with the release or spill of any legally designated hazardous material or waste as a result of the work performed under this Agreement are expressly within the scope of this indemnity, and that the costs, expenses, and legal liability for environmental investigations, monitoring, containment, abatement, removal, repair, cleanup, restoration, remedial work, penalties, and fines arising CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 5 OF 7 from strict liability, or violation of any local, state, or federal law or regulation, attorney's fees, disbursements, and other response costs incurred as a result of such releases or spills are expressly within the scope of this indemnity. 13.3 Applicant shall, on SCE's request, defend any action, claim or suit asserting a claim that may be covered by this indemnity. Applicant shall pay all costs and expenses that may be incurred by SCE in enforcing this indemnity, including reasonable attorney's fees. This indemnity shall survive the termination of this Agreement for any reason. 13.4 If this Agreement is assigned pursuant to Section 10.0, Applicant agrees that this indemnification shall continue to apply to SCE and shall apply to the assignee. 14.0 LIMITATION OF LIABILITY SCE shall not be liable for any special, incidental, indirect, or consequential damages, including without limitation, loss of profits or commitments to subcontractors, and any special, incidental, indirect or consequential damages incurred by Applicant. 15.0 WRITTEN NOTICE 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, email, nationally recognized overnight courier, or first class mail, postage prepaid; to the address specified below, or to another address specified in writing by SCE. SCE SCE Offer Manager: James Hodge Address: PO Box 800 City, State, Zip: Rosemead, CA 91770 Fax #: (626) 302 -6126 Email: JAMES.HODGE @SCE.COM Phone: (626) 302 -0654 APPLICANT (CUSTOMER OR AUTHORIZED REPRESENTATIVE) Name: Company: Address: City, State, Zip: Fax #: Email: Phone: Kurt Wiemann City of Santa Ana 20 Civic Center Plaza M -21 Santa Ana, CA 92702 Kwiemann @santa - ana.org 714 - 647 -5639 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 otherwise on the Business Day following personal delivery; (b) if mailed, three Business Days after the date the notice is postmarked; (c) if by facsimile or email, 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. 16.0 CONFLICTS BETWEEN TERMS Should a conflict exist between the main body of this Agreement and the documents incorporated by reference, the main body of this Agreement shall CUSTOMIZED SOLUTIONS CONTRACT - LOCAL. GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 6 OF 7 control. Should a conflict exist In the documents Incorporated by reference, the documents shall control in the following order: 1) SCE acceptance letter(s) and Incentive estimate(s) based on solutions approved in the Application; and (2) the Partnership Agreement applicable to Applicant, and (3) Applicant's approved Application(s). Should a conflict exist between an applicable federal, State, or local law, rule, regulation, order or code and this Agreement, the law, rule, regulation, order or code shall control. Varying degrees of stringency among the main body of this Agreement, the documents incorporated by reference, and laws, rules, regulations, orders, or codes are not deemed conflicts, and the most stringent requirement shall control. Each Party shall notify the other Immediately upon the identification of any conflict or inconsistency concerning this Agreement. 17.0 CANCELLATION OF AGREEMENT: SCE may suspend or terminate the Agreement, with cause, upon written notice to the Applicant identified in Section 15 hereof. SCE may suspend or terminate the Agreement upon written notice to the Applicant if funding for the Program is depleted, or If SCE determines suspension or termination of the Agreement is necessary in order to make changes to the related Program or if SCE is ordered by the CPUC to modify or discontinue a Program and /or any agreements related to a Program. 18,0 MISCELLANEOUS This Agreement shall at all times be subject to such changes or modifications by the CPUC as it may from time to time direct in the exercise of its jurisdiction. This Agreement shall be governed and construed in accordance with the laws of the State of California, without regard to its conflict of laws provisions. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect. This Agreement constitutes the entire agreement and understanding between the Parties as to the subject matter of this Agreement and supersedes all prior agreements, representations, writings and discussions between the Parties, whether oral or written, with respect to the subject matter hereof. No amendment, modification or change to this Agreement shall be binding or effective unless expressly set forth in writing and signed by SCE's representative authorized to execute the Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date set forth below 0 Title: Name Printed: Mark Wallenrod APPLICANT CUSTOMER 14UTHORIZED AGENT) By Title: Interim City Manager Name Kevin O'Rourke Printed: RAfi. 1 'I x1113 ATTE1,Vt w C /2ita,,,,ic �� MARIA D. HUIZAR c CLERK OF THE COUNCIL CUSTOUIZEOSOLUTIONS CONTRACT -LOCAL "VFRPi✓iPF ITACID[PIS"TI'I'UTIOPiAL FART Fr RSHIP 7 OF EDISON As II'.Y•0.Y AYT[II lliXtlG{L- CiY�I�I� 2010 — 2012 CUSTOMIZED SOLUTIONS AGREEMENT FOR LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIPS Application Information Project Name LED Street Lighting Retrofit - Scope #4 3-001- 3270- e5.M�r,sre Service Account # UPN 193 -12- 0500254043 Date Received: 7/26/12 SCE Customer Ir City of Santa Ana COMPANY NAME (Agency /Institution /Local Government) 20 Civic Center Plaza M -21 ADDRESS Kurt Wiemann CONTACT NAME Projects Manager TITLE Tax Status: Corp. _ Non -Corp. X Exempt, Reason Authorized Agent I COMPANY NAME ADDRESS CONTACT NAME TITLE Tax Status: Corp. Non -Corp. Exempt, Reason. LED Street Lighting Retrofit -Scope #4 E 1 st.`Raith. �, /Iulti -Site Kurt Wiemann 714 -647 -5639 SITE CONTACT Calculated Approach X i• Santa Ana 92702 CITY /STATE ZIP CODE Kwiemann @ santa - ana.org EMAIL ADDRESS 714- 647 -5639 TELEPHONE NO. FAX NO Government 95- 6000785 COMPANY /CORP. FEDERAL TAX ID CORPORATE PARENT NAME (if applicable): CITY /STATE ZIP CODE EMAIL ADDRESS TELEPHONE NO. FAX NO. COMPANY /CORP. FEDERAL TAX ID C- E I.D.= "if appflca3ele) Santa Ana /CA 92701- �Aulti -Site CITY ST- T H Zip CCC= 3 -001- 3270 -85. hl !ti -Sia CON T ACT PION SC_ EL =CTRIC ACCOU\iTi Sj Y CUS70%117ED SOLJT -!CNS COiN7,- -ACT - LCC,�L GC` -- RNtiIEN? A ND IDES T ITUTICNAL PARTNE?Si-.IF 1OF- f Final Approved Savings and Incentive Estimate s. SOLItTIQhtSDt6Ct�fPF(E3t . Exterior LED street lighting LT -48371 83,319.00 $9,165.09 Total Approved Savings/incentive Estimates 83,319.00 0.00 $9,165.09 Incentive Adjustment due to Project Cost Incentive Adjustment due to Project Site Ca Total Estimated Incentive 1 $9,165.09 2010 — 2012 CUSTOMIZED SOLUTIONS AGREEMENT TERMS AND CONDITIONS FOR LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIPS This Customized Solutions Agreement ( "Agreement ") is entered into by Southern California Edison Company ( "SCE ") and the Customer or the Customer's Authorized Agent, as identified on page 1 above (each deemed an "Applicant" for purposes of this Agreement). Applicant agrees to review these terms and conditions. Any implementation of a project hereunder will be deemed to be acceptance by the Applicant of such terms and conditions, and such terms and conditions shall be binding on the Applicant (both Customer and Authorized Agent, if applicable). If these terms and conditions are not acceptable to Applicant, then Applicant must notify SCE and refrain from any implementation of the project, otherwise will proceed at their own risk. SCE and Applicant may be individually referred to as a "Party" and collectively as the "Parties." 1.0 PROJECT DESCRIPTION This Agreement is limited to those projects and /or solutions described in the applicable 2010 -2012 Energy Management Solutions - Incentive Application for Business Customers (together with all forms attached thereto, and referred to herein as the "Application "). As stated in the Application, SCE shall pay incentives to Applicant, or such other party properly authorized to receive payment, in accordance with the terms and conditions of this Agreement. The Customized Solutions Program ("Program ") is further described in the 2010 Customized Statewide Procedures Manual for Business ( "Program Manual ") and at www.sce.com /customized solutions. 2.0 DOCUMENTS INCORPORATED BY REFERENCE The following documents are hereby Incorporated by reference and made part of this Agreement: (i) Applicant's completed, signed and s u bl,mjitied Art•- lic.atio� il\i SCE acceptance letter(s) J tons �rr' ( � �i:d ,�L � b�.> -�!� n f ^e energy saving SGlutv� pr: °-J in JJ pvJ�.v , r�� °` 1, and! ,,.� L, a e , enl (Cr memo. = ^� m ci und=rst..,Id; as ap^!Ica le to io;, `" the 20 i 0 -12 � 'c r y �+al:,,er �ncrg� �f ?, I n., Pa Lnersnip Pr ^g,am aNp,icdUle to : ^e Pa:t;e„ (the `Partnership Agreement'). CUST0MIZE-C SC "i IONS CGS, FIAC` LCCA� GC RNA. EN AND iNSTITUT :CNAL PARTNERSHIP 2 CF 7 3.0 ELIGIBILITY Program funding is limited and is available on a first -come, first - served basis. Funds will be reserved only upon both SCE's written approval of the Application and SCE's execution of this Agreement. Projects must meet the following requirements to be eligible for payment of Program incentives ( "Incentive(s) "): (1) Project site must be a nonresidential facility located within SCE's service territory; (2) SCE Customers must pay the Public Goods Charge ( "PGC ") on the SCE electric meter where the energy efficient equipment is installed; (3) Projects will be evaluated using the Calculated Approach and /or the Measured Savings Approach (also known as measurement and verification ( "M &V "); (4) Energy savings and demand reduction resulting from the project must be above and beyond baseline energy performance, which include state - mandated codes, federal- mandated codes, industry- accepted performance standards or other baseline energy performance standards as determined by SCE; (5) Projects must meet all other Program requirements, terms and conditions; (6) Applicant certifies that Applicant will not apply for or receive rebates, incentives, or services covered by this Agreement in an amount greater than the total cost of the project or solution(s) (including labor and materials); and (7) The Applicant certifies that the solutions covered by this Agreement have not and will not receive any funds from any other utility, state or local program funded by the PGC surcharge. 4.0 SUBMITTAL REQUIREMENTS FOR PAYMENT Applicant shall submit to SCE the documents described below prior to being eligible for payment of Incentives. Required documents include, but are not limited to: (1) This Agreement, fully executed and with the attached documents referenced in Item 2.0 above; (2) Complete engineering calculations to demonstrate energy savings and documentation, if applicable (including archival diskette, CD, etc.); (3) Schematic drawings and /or manufacturer specification sheets, if applicable; (4) Invoices and /or documentation to support solution costs, at SCE's request; (5) Project Installation Report; (6) Operating Report, if M &V is required; and (7) Any other documents related to the project, project site, solutions, energy savings or otherwise requested by SCE in its sole discretion, in connection with the Program. 5.0 INSPECTIONS Applicant is solely responsible for ensuring that SCE has reasonable access for all inspections, including but not limited to: (1) Pre - installation equipment inspection to examine the existing /baseline equipment and to check the accuracy of Applicant's equipment survey; (2) Post - installation equipment inspection to check installed equipment and to verify accuracy of Applicant's equipment survey; (3) Post - operation inspection to verify energy savings of the solutions after installed equipment has been operating, if requested by SCE; and (4) Inspection for any other Program - related reason that SCE, in its sole discretion, deems necessary. 6.0 REVIEW AND DISCLAIMER SCE'S AND /OR ITS CONSULTANTS' REVIEW OF THE DESIGN, CONSTRUCTION, OPERATION OR MAINTENANCE OF THE PROJECT OR ENERGY EFFICIENCY SOLUTIONS SHALL NOT CONSTITUTE ANY REPRESENTATION AS TO THE ECONOMIC OR TECHNICAL FEASIBILITY, OPERATIONAL CAPABILITY, OR RELIABILITY OF THE PROJECT OR SOLUTIONS, NOR SHALL THE APPLICANT, IN ANY WAY, MAKE SUCH A REPRESENTATION TO A THIRD PARTY. APPLICANT IS SOLELY RESPONSIBLE FOR THE ECONOMIC AND TECHNICAL FEASIBILITY, CONSTRUCTION, OPERATIONAL CAPABILITY AND RELIABILITY OF APPLICANT'S PROJECT AND SOLUTIONS. SCE MAKES NO WARRANTY, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, USE OR APPLICATION. 7.0 PAYMENTS Payment of Incentives will be made only after all Program requirements are met by Applicant to SCE's sole satisfaction. Payment of Incentives will be made as designated by Customer in Section 8 of the Application. /. i S�� - - , JVi,: Ui—eii�n tJ d te, line the : appro:.Jri at baJ -.1— v-a'_ies and energy Sa''iin ^s ca:cuiaticr.S used to determine I: payments. Incen`iv _ d on y c�- ''mime nCenll�ie Incentives shall vvniy b2 pal protects that exceed the baseline performance standards applicable �,vhen this Agreement is �I,STOA.II�ED SCLUTIONS CONTRACT - LCCAL GO:ERNP.I ENT AND 1NST7UTIONAL PAP.TNERSHIF 3 OF 7 signed. SCE reserves the right to modify or cancel the Incentive amount if the actual solution installed differs from the installation as set forth in this Agreement. 7.2 The total Incentive payment under the Calculated Savings Approach or Measured Savings Approach shall not exceed the total Incentive in the Final Approved Savings Estimate (as presented on Page 2 of this Agreement). However, projects may (at the discretion of SCE) be eligible for Incentive payments in excess of the Final Approved Savings Estimate if the project results in: (a) increased actual energy savings resulting from the installation of a greater quantity of the approved solutions (as outlined in SCE's acceptance letter); (b) increased actual energy savings resulting from greater efficiencies than estimated (as outlined in the SCE acceptance letter); and /or (c) greater actual project costs than originally estimated. Partnership Incentive levels and Incentive caps shall apply according to the terms of the applicable Partnership Agreement. The total Incentive payment shall not exceed the total project cost as defined in the Program Manual. 7.3 Energy savings for which Incentives are paid cannot exceed the actual electric usage for each SCE Customer service account for which Incentives are being requested. Non -SCE supply, such as cogeneration or deliveries from another commodity supplier, does not qualify as usage from SCE (with the exception of Direct Access customers or customers paying departing load fees for which SCE collects PGC surcharges). 7.4 SCE will make the applicable Incentive payment to the designated payee, in one or more installments, only after all required and /or requested documents have been submitted to, and approved by, SCE, and the appropriate inspection(s) of the project or project site have been completed in accordance with the Program rules set forth in the Program Manual. 7.5 Except as provided below, all projects and /or solutions must be completely installed and fully operational one year from SCE's written project Application approval date to be eligible for Incentive payments. SCE reserves the right to cease making Incentive payment(s), require the return of the total or prorated Incentive payments, and /or terminate this Agreement if the project is not completely installed and fully operational by the applicable date as indicated above, unless an installation extension is granted by SCE. 8.0 PAYMENT DISQUALIFICATION Any Incentives received by Applicant shall be repaid to SCE, in whole or in part, as follows: 8.1 If Customer fails to pay the PGC surcharge throughout the Term of this Agreement. In this event, the total estimated amount of the Incentives shall be prorated and any Incentive payment shall be based on the energy savings that occur during the payment of the PGC surcharge. 8.2 If (1) Customer does not provide SCE with 100% of the related energy benefits specified in this Agreement for the life of the product or for a period of five (5) years from receipt of the Incentive, whichever is less, or (2) the energy benefit to SCE ceases in any way, including but not limited to Customer and /or the project site ceasing to receive electricity from SCE, the solution, equipment and /or project ceasing to function, or Customer ceasing the use of the equipment, solution or project site. Applicant shall refund to SCE a prorated amount of the incentive dvilais based o- 1 t, ^;e actual period of tii � c foir b`ihic l Custj ier provided tuh-e energy as an SCE c_ ss omier. 8.3 Applican shall spay any Incentive amounts due to SCE within thirty (30) calendar days of notification by SCE. Repayment is required In accordance with Sections 8.1 and 8.2 above. CCST3%NZ_:D SOL- 'T:CNS CONTRACT - LOCAL GOVERNMENT AND INSTITUT1CN, -L PART%ERSNIP 4 OP 7 SCE shall be entitled to offset against payments owed to Applicant any amount due to SCE that remains unpaid forty (40) calendar days after SCE's written demand for payment. 9.0 TERM AND TERMINATION The term of this Agreement shall commence on the last date that a Party executes this Agreement and shall terminate no later than five (5) years from SCE's written project Installation Report approval date, unless terminated earlier pursuant to this Agreement ( "Term "). 10.0 ASSIGNMENT SCE may assign this Agreement, or its rights and obligations hereunder, directly or indirectly, without prior written consent, provided SCE remains obligated for payments incurred prior to the assignment. Applicant may not assign its rights or delegate its duties without the prior written consent of SCE, which shall not be unreasonably withheld or delayed. If an assignment is requested, Applicant is obligated to provide additional information if requested by SCE. 11.0 PERMITS AND LICENSES Applicant, at its own expense, shall obtain and maintain and cause its contractors and /or subcontractors to obtain and maintain licenses and permits required by federal, state, local, or other relevant governing or regulatory bodies needed to perform its work. Any failure by Applicant or its contractors and /or subcontractors to maintain necessary licenses and permits constitutes a material breach of Applicant's obligations under this Agreement. 12.0 ADVERTISING, MARKETING AND USE OF SCE'S NAME Applicant shall not use SCE's corporate name, trademark, trade name, logo, identity or any affiliation for any reason, including soliciting customers to participate in the project, without SCE's prior written consent. Applicant shall make no representations to its customers on behalf of SCE. 13.0 INDEMNIFICATION To the extent Applicant has (i) executed a Partnership Agreement with SCE and is a direct party thereto, and (ii) such Partnership Agreement contains indemnity provisions covering Applicant's performance under the Program and this Agreement, then such Indemnity provisions shall apply to this Agreement and the remainder of this Section 13 shall have no force and effect. For all other Applicants (including, but not limited to, program participants, contractors, consultants, and others who are not direct parties to a Partnership Agreement with SCE containing such indemnity provisions), the following shall apply: 13.1 Applicant shall indemnify, defend and hold harmless, and release SCE, its affiliates, subsidiaries, parent companies, officers, directors, agents and employees, from and against all claims, demands, losses, damages, costs, expenses, and liability (legal, contractual, or otherwise), which arise from or are in any way connected with any: (i) injury to or death of persons, including but not limited to employees of SCE or Applicant; (ii) injury to property or other interests of SCE, Applicant, or any third party;(iii) violation of local, state, or federal common law, statute, or regulation, including but not limited to environmental laws or regulations; or (iv) strict liability imposed by any law or regulation; so long as such injury, violation, or strict liability (as set forth in (i) - (iv) above) arises from or is in any way connected with Applicant 's performance of, or failure to perform, this Agreement, however caused, regardless of any strict liability or negligence of SCE whether active or passive, excepting only such loss, damage, cost, expense, liability, strict liability, or violation of law or regulation that is caused by the sole negligence or willful misconduct of SCE, its officers, managers or employees. 13.2 Applicant ackno,,vledges that any claims, demands, losses. damages, costs, expenses, a -�-J legaill liability that arise out of, resu.i frorn, o. are in any ',,`:ay connected with the release or II, of a:: i;i legally des:' i =tee h ^aZa: u J' S mate, w' of `,N,a3te as a r es'_ii � ;vork pal form„ Gi t c �u and °;' t.'':.. Agreement arc express'y bv;thi. , the ..ccpe of this inde- n;ty, and that the costs, expenses, and legal liability for environmental Investigations, monitoring, containment, abatement, removal, repair, cleanup, restoration, remedial work, penalties, and fines arising CUS-, CMiZEDSOLU T'. ONSCO`i';- ACT - LOCAL GO`,ERNIJE`,T ANG iNS ITJ71CN;iL ? ?.rZTNEF5HIP 5 CF . from strict liability, or violation of any local, state, or federal law or regulation, attorney's fees, disbursements, and other response costs incurred as a result of such releases or spills are expressly within the scope of this indemnity. 13.3 Applicant shall, on SCE's request, defend any action, claim or suit asserting a claim that may be covered by this indemnity. Applicant shall pay all costs and expenses that may be incurred by SCE in enforcing this indemnity, including reasonable attorney's fees. This indemnity shall survive the termination of this Agreement for any reason. 13.4 If this Agreement is assigned pursuant to Section 10.0, Applicant agrees that this indemnification shall continue to apply to SCE and shall apply to the assignee. 14.0 LIMITATION OF LIABILITY SCE shall not be liable for any special, incidental, indirect, or consequential damages, including without limitation, loss of profits or commitments to subcontractors, and any special, incidental, indirect or consequential damages incurred by Applicant. 15.0 WRITTEN NOTICE 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, email, nationally recognized overnight courier, or first class mail, postage prepaid; to the address specified below, or to another address specified in writing by SCE. SCE SCE Offer Manager: Address: City, State, Zip: Fax #: Email: Phone: James Hodge PO Box 800 Rosemead, CA 91770 626- 302 -6126 James.Hodge @SCE.com (626) 302 -0654 APPLICANT (CUSTOMER OR AUTHORIZED REPRESENTATIVE) Name: Company: Address: City, State, Zip: Fax #: Email: Phone: Kurt Wiemann City of Santa Ana 20 Civic Center Plaza M -21 Santa Ana, CA 92702 Kwiemann @santa- ana.org 714- 647 -5639 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 otherwise on the Business Day following personal delivery; (b) if mailed, three Business Days after the date the notice is postmarked; (c) if by facsimile or email, upon electronic confirmation of transmission, followed by telephone notification of transmission by the noticing Pay y; or (d) if by overnight courier, on the B,jsi,ne s ± n ;nn e!' von t u s Day o�i ,,. ,� d ,i�, .y to the c�iernig'� �� courier ynthin the time set by that courier for next -day delivery. 16.0 CONFLICTS BETWEEN TERMS Should a conflict exist betveen the main body of this Agreement and the documents incorporated by reference, the main body of this Agreement shall COSTCtifIZEC SCLU7�0riS CONT:�,=.C- - LCCAL GUVERNMDE T AND INS- 17UTiCNAL PARTNEP.SE,P control. Should a conflict exist In the documents Incorporated by reference, the documents shall control in the following order: 1) SCE acceptance letter(s) and Incentive estimate(s) based on solutions approved in the Application; and (2) the Partnership Agreement applicable to Applicant, and (3) Applicant's approved Application(s). Should a conflict exist between an applicable federal, State, or local law, rule, regulation, order or code and this Agreement, the law, rule, regulation, order or code shall control. Varying degrees of stringency among the main body of this Agreement, the documents incorporated by reference, and laws, rules, regulations, orders, or codes are not deemed conflicts, and the most stringent requirement shall control. Each Party shall notify the other Immediately upon the identification of any conflict or inconsistency concerning this Agreement. 17.0 CANCELLATION OF AGREEMENT: SCE may suspend or terminate the Agreement, with cause, upon written notice to the Applicant identified in Section 15 hereof. SCE may suspend or terminate the Agreement upon written notice to the Applicant if funding for the Program is depleted, or If SCE determines suspension or termination of the Agreement is necessary in order to make changes to the related Program or if SCE is ordered by the CPUC to modify or discontinue a Program and /or any agreements related to a Program. 18,0 MISCELLANEOUS This Agreement shall at all times be subject to such changes or modifications by the CPUC as it may from time to time direct in the exercise of its jurisdiction. This Agreement shall be governed and construed in accordance with the laws of the State of California, without regard to its conflict of laws provisions. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect. This Agreement constitutes the entire agreement and understanding between the Parties as to the subject matter of this Agreement and supersedes all prior agreements, representations, writings and discussions between the Parties, whether oral or written, with respect to the subject matter hereof. No amendment, modification or change to this Agreement shall be binding or effective unless expressly set forth in writing and signed by SCE's representative authorized to execute the Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date set forth below 0 Title: Name Printed: Mark Wallenrod APPLICANT CUSTOMER 14UTHORIZED AGENT) By Title: Interim City Manager Name Kevin O'Rourke Printed: RAfi. 1 'I x1113 ATTE1,Vt w C /2ita,,,,ic �� MARIA D. HUIZAR c CLERK OF THE COUNCIL CUSTOUIZEOSOLUTIONS CONTRACT -LOCAL "VFRPi✓iPF ITACID[PIS"TI'I'UTIOPiAL FART Fr RSHIP 7 OF EDISON 2010 - 2012 CUSTOMIZED SOLUTIONS AGREEMENT FOR LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIPS Application Project Name LED Street Lighting Retrofit - Scope #4 3-001 - 3270- 85,Muft�Ste _ Service Account # UPN 193 -12- 0500254043 7/26/12 Date Received. Calculated Approach X SCE Customer Information City of Santa Ana COMPANY NAME (Agency /Institution /Local Government) 20 Civic Center Plaza M -21 Santa Ana 92702 ADDRESS CITY /STATE ZIP CODE Kurt Wiemann Kwiemann @santa- ana.org CONTACT NAME EMAIL ADDRESS Projects Manager 714 - 647 -5639 TITLE TELEPHONE NO. FAX NO Tax Status: Government 95- 6000785 Corp. Non-Corp. orp. Exempt, Reason: COMPANY /CORP. FEDERAL TAX ID Authorized Agent COMPANY NAME CORPORATE PARENT NAME (if applicable): CITY /STATE ZIP CODE ADDRESS CONTACT NAME EMAIL ADDRESS TELEPHONE NO. FAX NO, TITLE Tax Status: Ccrp. Non -Corp. _ Exempt, Reason: COMPANY /CORP. FEDERAL TAX ID LED Street Lighting Retrofit - Scope #,4 SITE !N. -, ?,1= SITELD. =(i` —^ ilca�ic; 1St /Ralth, Multi -Site Santa Ana,!CA 92701 ->`, ✓Multi -Site �iTE .ADD =-SS Cl—,! 3TAT- Kurt Wiemann 714 - 647 -5639 3 -0011- 3270-85. %Ij' : -S;t� SI TE CON T A. CT i+„ d,l= CONTACT PHONE R SCE ELECTRIC -CCCI ,-;S! CI,STC,MIZ_G SCLUTCNS C0,47,TRACT - LOCAL GOVERNLI61I7 ANN INS TIT OTIONAL PARTNERS, ,P 1 OF 7 kS:WZMf:�.xAY�l4 Final Approved Savings and Incentive Estimate k; µ N. SOLCJTtt} 15 t 1= SCftlFri 64k7 .: r. .dCo& . x ,kwtt .. :. tAf .. ..:$ FriCentive�kmQUr Exterior LED street lighting LT -48371 83,319.00 $9,165.09 Total Approved Savin slincentive Estimates 83,319.00 0.00 $9,165.09 Incentive Adjustment due to Project Cost Incentive Adjustment due to Project Site Ca Total Estimated Incentive $9,165.09 2010 — 2012 CUSTOMIZED SOLUTIONS AGREEMENT TERMS AND CONDITIONS FOR LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIPS This Customized Solutions Agreement ( "Agreement ") is entered into by Southern California Edison Company ( "SCE ") and the Customer or the Customer's Authorized Agent, as identified on page 1 above (each deemed an "Applicant" for purposes of this Agreement). Applicant agrees to review these terms and conditions. Any implementation of a project hereunder will be deemed to be acceptance by the Applicant of such terms and conditions, and such terms and conditions shall be binding on the Applicant (both Customer and Authorized Agent, if applicable). If these terms and conditions are not acceptable to Applicant, then Applicant must notify SCE and refrain from any implementation of the project, otherwise will proceed at their own risk. SCE and Applicant may be individually referred to as a "Party" and collectively as the "Parties." 1.0 PROJECT DESCRIPTION This Agreement is limited to those projects and /or solutions described in the applicable 2010 -2012 Energy Management Solutions - Incentive Application for Business Customers (together with all forms attached thereto, and referred to herein as the "Application "). As stated in the Application, SCE shall pay incentives to Applicant, or such other party properly authorized to receive payment, in accordance with the terms and conditions of this Agreement. The Customized Solutions Program ( "Program ") is further described in the 2010 Customized Statewide Procedures Manual for Business ( "Program Manual ") and at www.sce.com /customized solutions. 2.0 DOCUMENTS INCORPORATED BY REFERENCE The following documents are hereby Incorporated by reference and made part of this Agreement: (i) Applicant's Completed. signed and SUV-Mi 1 ILIA I. aticn, (i�) SCE acceptance 1elter',.Ci) based vn I ^e energy JQ �n'` Sr'I.^1 �riC r,o.,n ^�-'i p. posed In ` i t [ '�^ a ^� (i ) t:1° agreement (or memora �J ;, of ll.'s- ;ers - -and� y S aft C2' le� to jointly d !:ver `n 2010-12 _reI zj � Efficiency Pain, rshio Program appl ca-i to t1 Parr, s (one "Partnership Agreement "). cLsTC,wizE, soLuTncws cow- R.AcT - LocA� GG',EF MEa,T AND 16T,TUT6NAL PARTNERS} ,P z cP 7 3.0 ELIGIBILITY Program funding is limited and is available on a first -come, first - served basis. Funds will be reserved only upon both SCE's written approval of the Application and SCE's execution of this Agreement. Projects must meet the following requirements to be eligible for payment of Program incentives ( "Incentive(s) "): (1) Project site must be a nonresidential facility located within SCE's service territory; (2) SCE Customers must pay the Public Goods Charge ( "PGC ") on the SCE electric meter where the energy efficient equipment is installed; (3) Projects will be evaluated using the Calculated Approach and /or the Measured Savings Approach (also known as measurement and verification ( "M &V "); (4) Energy savings and demand reduction resulting from the project must be above and beyond baseline energy performance, which include state - mandated codes, federal- mandated codes, industry- accepted performance standards or other baseline energy performance standards as determined by SCE; (5) Projects must meet all other Program requirements, terms and conditions; (6) Applicant certifies that Applicant will not apply for or receive rebates, incentives, or services covered by this Agreement in an amount greater than the total cost of the project or solution(s) (including labor and materials); and (7) The Applicant certifies that the solutions covered by this Agreement have not and will not receive any funds from any other utility, state or local program funded by the PGC surcharge. 4.0 SUBMITTAL REQUIREMENTS FOR PAYMENT Applicant shall submit to SCE the documents described below prior to being eligible for payment of Incentives. Required documents include, but are not limited to: (1) This Agreement, fully executed and with the attached documents referenced in Item 2.0 above; (2) Complete engineering calculations to demonstrate energy savings and documentation, if applicable (including archival diskette, CD, etc.); (3) Schematic drawings and /or manufacturer specification sheets, if applicable; (4) Invoices and /or documentation to support solution costs, at SCE's request; (5) Project Installation Report; (6) Operating Report, if M &V is required; and (7) Any other documents related to the project, project site, solutions, energy savings or otherwise requested by SCE in its sole discretion, in connection with the Program. 5.0 INSPECTIONS Applicant is solely responsible for ensuring that SCE has reasonable access for all inspections, including but not limited to: (1) Pre - installation equipment inspection to examine the existing /baseline equipment and to check the accuracy of Applicant's equipment survey; (2) Post - installation equipment inspection to check installed equipment and to verify accuracy of Applicant's equipment survey; (3) Post - operation inspection to verify energy savings of the solutions after installed equipment has been operating, if requested by SCE; and (4) Inspection for any other Program - related reason that SCE, in its sole discretion, deems necessary. 6.0 REVIEW AND DISCLAIMER SCE'S AND /OR ITS CONSULTANTS' REVIEW OF THE DESIGN, CONSTRUCTION, OPERATION OR MAINTENANCE OF THE PROJECT OR ENERGY EFFICIENCY SOLUTIONS SHALL NOT CONSTITUTE ANY REPRESENTATION AS TO THE ECONOMIC OR TECHNICAL FEASIBILITY, OPERATIONAL CAPABILITY, OR RELIABILITY OF THE PROJECT OR SOLUTIONS, NOR SHALL THE APPLICANT, IN ANY WAY, MAKE SUCH A REPRESENTATION TO A THIRD PARTY. APPLICANT IS SOLELY RESPONSIBLE FOR THE ECONOMIC AND TECHNICAL FEASIBILITY, CONSTRUCTION, OPERATIONAL CAPABILITY AND RELIABILITY OF APPLICANT'S PROJECT AND SOLUTIONS. SCE MAKES NO WARRANTY, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, USE OR APPLICATION. 7.0 PAYMENTS Payment of Incentives will be made only after all Program requirements are met by Applicant to SCE's sole satisfaction. Payment of Incentives will be made as designated by Customer in Section 8 of the Application. 7.1i SC= re-,a'ns sole to _- Iete"mGnc the approp(;u.., base-IMee base-Is. vail'ues and energy savings cal used to de. r i e Incent.ve payment. Incentives sha'1 only be paid o.. protects that exceed the baseline performance standards applicable when this Agreement is SOL 'cr�_ signed. SCE reserves the right to modify or cancel the Incentive amount if the actual solution installed differs from the installation as set forth in this Agreement. 7.2 The total Incentive payment under the Calculated Savings Approach or Measured Savings Approach shall not exceed the total Incentive in the Final Approved Savings Estimate (as presented on Page 2 of this Agreement). However, projects may (at the discretion of SCE) be eligible for Incentive payments in excess of the Final Approved Savings Estimate if the project results in: (a) increased actual energy savings resulting from the installation of a greater quantity of the approved solutions (as outlined in SCE's acceptance letter); (b) increased actual energy savings resulting from greater efficiencies than estimated (as outlined in the SCE acceptance letter); and /or (c) greater actual project costs than originally estimated. Partnership Incentive levels and Incentive caps shall apply according to the terms of the applicable Partnership Agreement. The total Incentive payment shall not exceed the total project cost as defined in the Program Manual. 7.3 Energy savings for which Incentives are paid cannot exceed the actual electric usage for each SCE Customer service account for which Incentives are being requested. Non -SCE supply, such as cogeneration or deliveries from another commodity supplier, does not qualify as usage from SCE (with the exception of Direct Access customers or customers paying departing load fees for which SCE collects PGC surcharges). 7.4 SCE will make the applicable Incentive payment to the designated payee, in one or more installments, only after all required and /or requested documents have been submitted to, and approved by, SCE, and the appropriate inspection(s) of the project or project site have been completed in accordance with the Program rules set forth in the Program Manual. 7.5 Except as provided below, all projects and /or solutions must be completely installed and fully operational one year from SCE's written project Application approval date to be eligible for Incentive payments. SCE reserves the right to cease making Incentive payment(s), require the return of the total or prorated Incentive payments, and /or terminate this Agreement if the project is not completely installed and fully operational by the applicable date as indicated above, unless an installation extension is granted by SCE. 8.0 PAYMENT DISQUALIFICATION Any Incentives received by Applicant shall be repaid to SCE, in whole or in part, as follows: 8.1 If Customer fails to pay the PGC surcharge throughout the Term of this Agreement. In this event, the total estimated amount of the Incentives shall be prorated and any Incentive payment shall be based on the energy savings that occur during the payment of the PGC surcharge. 8.2 If (1) Customer does not provide SCE with 100% of the related energy benefits specified in this Agreement for the life of the product or for a period of five (5) years from receipt of the Incentive, whichever is less, or (2) the energy benefit to SCE ceases in any way, including but not limited to Customer and /or the project site ceasing to receive electricity from SCE, the solution, equipment and /or project ceasing to function, or Customer ceasing the use of the eq'uipment, solution or project site. Applicant shall refund to SCE a prorated a,� ount of the !nce- nti've dollars based o� n ti ie actual Period of time 1h: r'" � id-ed G` 'i0 for Lip �iuh vus.om.,r prU'v'iu:,u t� ie en.,. gy .,�%e .,. as an .�'..v- O:aJLVi"!i -1. 8.3 Applicant shall repay any Incentive amounts due to SCE within thirty (30) calendar days of notification by SCE. Repayment is required In accordance \with Sections 8.1 and 8.2 above. SCE shall be entitled to offset against payments owed to Applicant any amount due to SCE that remains unpaid forty (40) calendar days after SCE's written demand for payment. 9.0 TERM AND TERMINATION The term of this Agreement shall commence on the last date that a Party executes this Agreement and shall terminate no later than five (5) years from SCE's written project Installation Report approval date, unless terminated earlier pursuant to this Agreement ( "Term "). 10.0 ASSIGNMENT SCE may assign this Agreement, or its rights and obligations hereunder, directly or indirectly, without prior written consent, provided SCE remains obligated for payments incurred prior to the assignment. Applicant may not assign its rights or delegate its duties without the prior written consent of SCE, which shall not be unreasonably withheld or delayed. If an assignment is requested, Applicant is obligated to provide additional information if requested by SCE. 11.0 PERMITS AND LICENSES Applicant, at its own expense, shall obtain and maintain and cause its contractors and /or subcontractors to obtain and maintain licenses and permits required by federal, state, local, or other relevant governing or regulatory bodies needed to perform its work. Any failure by Applicant or its contractors and /or subcontractors to maintain necessary licenses and permits constitutes a material breach of Applicant's obligations under this Agreement. 12.0 ADVERTISING, MARKETING AND USE OF SCE'S NAME Applicant shall not use SCE's corporate name, trademark, trade name, logo, identity or any affiliation for any reason, including soliciting customers to participate in the project, without SCE's prior written consent. Applicant shall make no representations to its customers on behalf of SCE. 13.0 INDEMNIFICATION To the extent Applicant has (i) executed a Partnership Agreement with SCE and is a direct party thereto, and (ii) such Partnership Agreement contains indemnity provisions covering Applicant's performance under the Program and this Agreement, then such Indemnity provisions shall apply to this Agreement and the remainder of this Section 13 shall have no force and effect. For all other Applicants (including, but not limited to, program participants, contractors, consultants, and others who are not direct parties to a Partnership Agreement with SCE containing such indemnity provisions), the following shall apply: 13.1 Applicant shall indemnify, defend and hold harmless, and release SCE, its affiliates, subsidiaries, parent companies, officers, directors, agents and employees, from and against all claims, demands, losses, damages, costs, expenses, and liability (legal, contractual, or otherwise), which arise from or are in any way connected with any: (i) injury to or death of persons, including but not limited to employees of SCE or Applicant; (ii) injury to property or other interests of SCE, Applicant, or any third party;(iii) violation of local, state, or federal common law, statute, or regulation, including but not limited to environmental laws or regulations; or (iv) strict liability imposed by any law or regulation; so long as such injury, violation, or strict liability (as set forth in (i) - (iv) above) arises from or is in any way connected with Applicant 's performance of, or failure to perform, this Agreement, however caused, regardless of any strict liability or negligence of SCE whether active or passive, excepting only such loss, damage, cost, expense, liability, strict liability, or violation of law or regulation that is caused by the sole negligence or willful misconduct of SCE, its officers, managers or employees. 13.2 Applicant ackno,;;ledges that any claims, demands, losses, damages, costs, expenses, an.. abi!it`; that arise e' of, result from, or a, e in any ,'iay connect ed v,it l the release or C vaiy I ga ", designated iia_arvous maeriial or vias'e as a r esu!t C, der thi Agreement a" e;(pressiy ',,,Jtnin the scope cf this i ,demnity, avid that the Costs, expenses, and legal iiabi';ity for environmental investigations, monitoring, containment. abatement, removal, repair, cleanup, restoration, remedial work, penalties, and fines arising _ _ from strict liability, or violation of any local, state, or federal law or regulation, attorney's fees, disbursements, and other response costs incurred as a result of such releases or spills are expressly within the scope of this indemnity. 13.3 Applicant shall, on SCE's request, defend any action, claim or suit asserting a claim that may be covered by this indemnity. Applicant shall pay all costs and expenses that may be incurred by SCE in enforcing this indemnity, including reasonable attorney's fees. This indemnity shall survive the termination of this Agreement for any reason. 13.4 If this Agreement is assigned pursuant to Section 10.0, Applicant agrees that this indemnification shall continue to apply to SCE and shall apply to the assignee. 14.0 LIMITATION OF LIABILITY SCE shall not be liable for any special, incidental, indirect, or consequential damages, including without limitation, loss of profits or commitments to subcontractors, and any special, incidental, indirect or consequential damages incurred by Applicant. 15.0 WRITTEN NOTICE 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, email, nationally recognized overnight courier, or first class mail, postage prepaid; to the address specified below, or to another address specified in writing by SCE. SCE SCE Offer Manager: Address: City, State, Zip: Fax #: Email: Phone: James Hodge PO Box 800 Rosemead, CA 91770 626- 302 -6126 James.Hodge @SCE.com (626) 302 -0654 APPLICANT (CUSTOMER OR AUTHORIZED REPRESENTATIVE) Name: Company: Address: City, State, Zip: Fax #: Email: Phone: Kurt Wiemann City of Santa Ana 20 Civic Center Plaza M -21 Santa Ana, CA 92702 Kwiemann @santa- ana.org 714 -647 -5639 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 otherwise on the Business Day following personal delivery; (b) if mailed, three Business Days after the date the notice is postmarked; (c) if by facsimile or email, upon electronic confirmation of transmission, followed by telephone no`ication of t- ansmission by the noticing Party; or (d) if by overnight courier, on the BUsimess Day fol o;nrn` de:'Jery to the overnight , ier vit + mi} + t e gh, cour, ,,,,n�n �h time 1; mils set by that .or next -day de'i eery. 16.0 CONFLICTS BETWEEN TERNIS Should a conflict exist be ,veen the main body of this Agreement and the documents incorporated by reference, the main body of this Agreement shall control. Should a conflict exist In the documents Incorporated by reference, the documents shall control in the following order: 1) SCE acceptance letter(s) and Incentive estimate(s) based on solutions approved in the Application; and (2) the Partnership Agreement applicable to Applicant, and (3) Applicant's approved Application(s). Should a conflict exist between an applicable federal, State, or local law, rule, regulation, order or code and this Agreement, the law, rule, regulation, order or code shall control. Varying degrees of stringency among the main body of this Agreement, the documents incorporated by reference, and laws, rules, regulations, orders, or codes are not deemed conflicts, and the most stringent requirement shall control. Each Party shall notify the other Immediately upon the identification of any conflict or inconsistency concerning this Agreement. 17.0 CANCELLATION OF AGREEMENT: SCE may suspend or terminate the Agreement, with cause, upon written notice to the Applicant identified in Section 15 hereof. SCE may suspend or terminate the Agreement upon written notice to the Applicant if funding for the Program is depleted, or If SCE determines suspension or termination of the Agreement is necessary in order to make changes to the related Program or if SCE is ordered by the CPUC to modify or discontinue a Program and /or any agreements related to a Program. 18,0 MISCELLANEOUS This Agreement shall at all times be subject to such changes or modifications by the CPUC as it may from time to time direct in the exercise of its jurisdiction. This Agreement shall be governed and construed in accordance with the laws of the State of California, without regard to its conflict of laws provisions. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect. This Agreement constitutes the entire agreement and understanding between the Parties as to the subject matter of this Agreement and supersedes all prior agreements, representations, writings and discussions between the Parties, whether oral or written, with respect to the subject matter hereof. No amendment, modification or change to this Agreement shall be binding or effective unless expressly set forth in writing and signed by SCE's representative authorized to execute the Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date set forth below 0 Title: Name Printed: Mark Wallenrod APPLICANT CUSTOMER 14UTHORIZED AGENT) By Title: Interim City Manager Name Kevin O'Rourke Printed: RAfi. 1 'I x1113 ATTE1,Vt w C /2ita,,,,ic �� MARIA D. HUIZAR c CLERK OF THE COUNCIL CUSTOUIZEOSOLUTIONS CONTRACT -LOCAL "VFRPi✓iPF ITACID[PIS"TI'I'UTIOPiAL FART Fr RSHIP 7 OF SQUiHLW uarar u EDISON �. aa�.ur.wru+urwwu- cn•.q 2010 — 2012 CUSTOMIZED SOLUTIONS AGREEMENT FOR LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIPS Application Inf• • LED Street Lighting Retrofit Scope #4 Project Name 3- 001 - 3271 -20, MuttFSite Service Account # 193 -12- 0500254042 UPN 7/26/12 Date Received: Calculated Approach X Customer SCE City of Santa Ana . • COMPANY NAME (Agency /Institution /Local Government) 20 Civic Center Plaza M -21 Santa Ana /CA 92702 ADDRESS CITY /STATE ZIP CODE Kurt Wiemann Kwiemann @santa- ana.org CONTACT NAME EMAIL ADDRESS Projects Manager 714- 647 -5639 TITLE TELEPHONE NO. FAX NO Tax Status: Corp. -Non-Corp. X Exempt, Reason: Government 95- 6000785 COMPANY /CORP. FEDERAL TAX ID Authorized Agent Information COMPANY NAME CORPORATE PARENT NAME (if applicable): CITY /STATE ZIP CODE ADDRESS CONTACT NAME EMAIL ADDRESS TELEPHONE NO. FAX NO. TITLE Tax Status: Corp. Non -Corp. _ Exempt, Reason: COMPANY /CORP. FEDERAL TAX ID Site Information LED Street Lighting Retrofit -Scope #4 SITE NAME SITE I.D.# (if applicable) 17 /Newhope, Multi -Site Santa Ana /CA 92701 SITE ADDRESS CITY /STATE ZIP CODE Kurt Wiemann 714 - 647 -5639 3 -001- 3271 -20, Multi -Site SITE CONTACT NAME CONTACT PHONE # SCE ELECTRIC ACCOUNT(S) # CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 1 OF 7 Final Approved Savings and Incentive Estimate SOLUTIONS DESCRIPTION Code kWh KW $ incentive Amount Exterior LED street lighting LT -48371 60,800.00 0.00 $9,958.85 Total Approved Savings/Incentive Estimates 60,800.00 0.00 $9,958.85 Incentive Adjustment due to Project Cost Incentive Adjustment due to Project Site Ca Total Estimated Incentive $9,958.85 2010 — 2012 CUSTOMIZED SOLUTIONS AGREEMENT TERMS AND CONDITIONS FOR LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIPS This Customized Solutions Agreement ( "Agreement ") is entered into by Southern California Edison Company ( "SCE ") and the Customer or the Customer's Authorized Agent, as identified on page 1 above (each deemed an "Applicant" for purposes of this Agreement). Applicant agrees to review these terms and conditions. Any implementation of a project hereunder will be deemed to be acceptance by the Applicant of such terms and conditions, and such terms and conditions shall be binding on the Applicant (both Customer and Authorized Agent, if applicable). If these terms and conditions are not acceptable to Applicant, then Applicant must notify SCE and refrain from any implementation of the project, otherwise will proceed at their own risk. SCE and Applicant may be individually referred to as a "Party" and collectively as the "Parties." 1.0 PROJECT DESCRIPTION This Agreement is limited to those projects and /or solutions described in the applicable 2010 -2012 Energy Management Solutions - Incentive Application for Business Customers (together with all forms attached thereto, and referred to herein as the "Application "). As stated in the Application, SCE shall pay incentives to Applicant, or such other party properly authorized to receive payment, in accordance with the terms and conditions of this Agreement. The Customized Solutions Program ( "Program ") is further described in the 2010 Customized Statewide Procedures Manual for Business ( "Program Manual ") and at www.sce.com /customized solutions. 2.0 DOCUMENTS INCORPORATED BY REFERENCE The following documents are hereby Incorporated by reference and made part of this Agreement: (i) Applicant's completed, signed and submitted Application, (ii) SCE acceptance letter(s) based on the energy saving solutions proposed in the Application, and (iii) the agreement (or memorandum of understanding, as applicable) to jointly deliver the 2010 -12 Energy Efficiency Partnership Program applicable to the Parties (the "Partnership Agreement "). CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 2 OF 7 3.0 ELIGIBILITY Program funding is limited and is available on a first -come, first - served basis. Funds will be reserved only upon both SCE's written approval of the Application and SCE's execution of this Agreement. Projects must meet the following requirements to be eligible for payment of Program incentives ( "Incentive(s) "): (1) Project site must be a nonresidential facility located within SCE's service territory; (2) SCE Customers must pay the Public Goods Charge ( "PGC ") on the SCE electric meter where the energy efficient equipment is installed; (3) Projects will be evaluated using the Calculated Approach and /or the Measured Savings Approach (also known as measurement and verification ( "M &W); (4) Energy savings and demand reduction resulting from the project must be above and beyond baseline energy performance, which include state - mandated codes, federal- mandated codes, industry- accepted performance standards or other baseline energy performance standards as determined by SCE; (5) Projects must meet all other Program requirements, terms and conditions; (6) Applicant certifies that Applicant will not apply for or receive rebates, incentives, or services covered by this Agreement in an amount greater than the total cost of the project or solution(s) (including labor and materials); and (7) The Applicant certifies that the solutions covered by this Agreement have not and will not receive any funds from any other utility, state or local program funded by the PGC surcharge. 4.0 SUBMITTAL REQUIREMENTS FOR PAYMENT Applicant shall submit to SCE the documents described below prior to being eligible for payment of Incentives. Required documents include, but are not limited to: (1) This Agreement, fully executed and with the attached documents referenced in Item 2.0 above; (2) Complete engineering calculations to demonstrate energy savings and documentation, if applicable (including archival diskette, CD, etc.); (3) Schematic drawings and /or manufacturer specification sheets, if applicable; (4) Invoices and /or documentation to support solution costs, at SCE's request; (5) Project Installation Report; (6) Operating Report, if M &V is required; and (7) Any other documents related to the project, project site, solutions, energy savings or otherwise requested by SCE in its sole discretion, in connection with the Program. 5.0 INSPECTIONS Applicant is solely responsible for ensuring that SCE has reasonable access for all inspections, including but not limited to: (1) Pre - installation equipment inspection to examine the existing /baseline equipment and to check the accuracy of Applicant's equipment survey; (2) Post - installation equipment inspection to check installed equipment and to verify accuracy of Applicant's equipment survey; (3) Post - operation inspection to verify energy savings of the solutions after installed equipment has been operating, if requested by SCE; and (4) Inspection for any other Program - related reason that SCE, in its sole discretion, deems necessary. 6.0 REVIEW AND DISCLAIMER SCE'S AND /OR ITS CONSULTANTS' REVIEW OF THE DESIGN, CONSTRUCTION, OPERATION OR MAINTENANCE OF THE PROJECT OR ENERGY EFFICIENCY SOLUTIONS SHALL NOT CONSTITUTE ANY REPRESENTATION AS TO THE ECONOMIC OR TECHNICAL FEASIBILITY, OPERATIONAL CAPABILITY, OR RELIABILITY OF THE PROJECT OR SOLUTIONS, NOR SHALL THE APPLICANT, IN ANY WAY, MAKE SUCH A REPRESENTATION TO A THIRD PARTY. APPLICANT IS SOLELY RESPONSIBLE FOR THE ECONOMIC AND TECHNICAL FEASIBILITY, CONSTRUCTION, OPERATIONAL CAPABILITY AND RELIABILITY OF APPLICANT'S PROJECT AND SOLUTIONS. SCE MAKES NO WARRANTY, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, USE OR APPLICATION. 7.0 PAYMENTS Payment of Incentives will be made only after all Program requirements are met by Applicant to SCE's sole satisfaction. Payment of Incentives will be made as designated by Customer in Section 8 of the Application. 7.1 SCE retains sole discretion to determine the appropriate baseline values and energy savings calculations used to determine Incentive payments. Incentives shall only be paid on projects that exceed the baseline performance standards applicable when this Agreement is CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 3 OF 7 signed. SCE reserves the right to modify or cancel the Incentive amount if the actual solution installed differs from the installation as set forth in this Agreement. 7.2 The total Incentive payment under the Calculated Savings Approach or Measured Savings Approach shall not exceed the total Incentive in the Final Approved Savings Estimate (as presented on Page 2 of this Agreement). However, projects may (at the discretion of SCE) be eligible for Incentive payments in excess of the Final Approved Savings Estimate if the project results in: (a) increased actual energy savings resulting from the installation of a greater quantity of the approved solutions (as outlined in SCE's acceptance letter); (b) increased actual energy savings resulting from greater efficiencies than estimated (as outlined in the SCE acceptance letter); and /or (c) greater actual project costs than originally estimated. Partnership Incentive levels and Incentive caps shall apply according to the terms of the applicable Partnership Agreement. The total Incentive payment shall not exceed the total project cost as defined in the Program Manual. 7.3 Energy savings for which Incentives are paid cannot exceed the actual electric usage for each SCE Customer service account for which Incentives are being requested. Non -SCE supply, such as cogeneration or deliveries from another commodity supplier, does not qualify as usage from SCE (with the exception of Direct Access customers or customers paying departing load fees for which SCE collects PGC surcharges). 7.4 SCE will make the applicable Incentive payment to the designated payee, in one or more installments, only after all required and /or requested documents have been submitted to, and approved by, SCE, and the appropriate inspection(s) of the project or project site have been completed in accordance with the Program rules set forth in the Program Manual. 7.5 Except as provided below, all projects and /or solutions must be completely installed and fully operational one year from SCE's written project Application approval date to be eligible for Incentive payments. SCE reserves the right to cease making Incentive payment(s), require the return of the total or prorated Incentive payments, and /or terminate this Agreement if the project is not completely installed and fully operational by the applicable date as indicated above, unless an installation extension is granted by SCE. 8.0 PAYMENT DISQUALIFICATION Any Incentives received by Applicant shall be repaid to SCE, in whole or in part, as follows: 8.1 If Customer fails to pay the PGC surcharge throughout the Term of this Agreement. In this event, the total estimated amount of the Incentives shall be prorated and any Incentive payment shall be based on the energy savings that occur during the payment of the PGC surcharge. 8.2 If (1) Customer does not provide SCE with 100% of the related energy benefits specified in this Agreement for the life of the product or for a period of five (5) years from receipt of the Incentive, whichever is less, or (2) the energy benefit to SCE ceases in any way, including but not limited to Customer and /or the project site ceasing to receive electricity from SCE, the solution, equipment and /or project ceasing to function, or Customer ceasing the use of the equipment, solution or project site. Applicant shall refund to SCE a prorated amount of the Incentive dollars based on the actual period of time for which Customer provided the energy benefit as an SCE customer. 8.3 Applicant shall repay any Incentive amounts due to SCE within thirty (30) calendar days of notification by SCE. Repayment is required In accordance with Sections 8.1 and 8.2 above. CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 4 OF 7 SCE shall be entitled to offset against payments owed to Applicant any amount due to SCE that remains unpaid forty (40) calendar days after SCE's written demand for payment. 9.0 TERM AND TERMINATION The term of this Agreement shall commence on the last date that a Party executes this Agreement and shall terminate no later than five (5) years from SCE's written project Installation Report approval date, unless terminated earlier pursuant to this Agreement ( "Term "). 10.0 ASSIGNMENT SCE may assign this Agreement, or its rights and obligations hereunder, directly or indirectly, without prior written consent, provided SCE remains obligated for payments incurred prior to the assignment. Applicant may not assign its rights or delegate its duties without the prior written consent of SCE, which shall not be unreasonably withheld or delayed. If an assignment is requested, Applicant is obligated to provide additional information if requested by SCE. 11.0 PERMITS AND LICENSES Applicant, at its own expense, shall obtain and maintain and cause its contractors and /or subcontractors to obtain and maintain licenses and permits required by federal, state, local, or other relevant governing or regulatory bodies needed to perform its work. Any failure by Applicant or its contractors and /or subcontractors to maintain necessary licenses and permits constitutes a material breach of Applicant's obligations under this Agreement. 12.0 ADVERTISING, MARKETING AND USE OF SCE'S NAME Applicant shall not use SCE's corporate name, trademark, trade name, logo, identity or any affiliation for any reason, including soliciting customers to participate in the project, without SCE's prior written consent. Applicant shall make no representations to its customers on behalf of SCE. 13.0 INDEMNIFICATION To the extent Applicant has (i) executed a Partnership Agreement with SCE and is a direct party thereto, and (ii) such Partnership Agreement contains indemnity provisions covering Applicant's performance under the Program and this Agreement, then such Indemnity provisions shall apply to this Agreement and the remainder of this Section 13 shall have no force and effect. For all other Applicants (including, but not limited to, program participants, contractors, consultants, and others who are not direct parties to a Partnership Agreement with SCE containing such indemnity provisions), the following shall apply: 13.1 Applicant shall indemnify, defend and hold harmless, and release SCE, its affiliates, subsidiaries, parent companies, officers, directors, agents and employees, from and against all claims, demands, losses, damages, costs, expenses, and liability (legal, contractual, or otherwise), which arise from or are in any way connected with any: (i) injury to or death of persons, including but not limited to employees of SCE or Applicant; (ii) injury to property or other interests of SCE, Applicant, or any third party;(iii) violation of local, state, or federal common law, statute, or regulation, including but not limited to environmental laws or regulations; or (iv) strict liability imposed by any law or regulation; so long as such injury, violation, or strict liability (as set forth in (i) - (iv) above) arises from or is in any way connected with Applicant's performance of, or failure to perform, this Agreement, however caused, regardless of any strict liability or negligence of SCE whether active or passive, excepting only such loss, damage, cost, expense, liability, strict liability, or violation of law or regulation that is caused by the sole negligence or willful misconduct of SCE, its officers, managers or employees. 13.2 Applicant acknowledges that any claims, demands, losses, damages, costs, expenses, and legal liability that arise out of, result from, or are in any way connected with the release or spill of any legally designated hazardous material or waste as a result of the work performed under this Agreement are expressly within the scope of this indemnity, and that the costs, expenses, and legal liability for environmental investigations, monitoring, containment, abatement, removal, repair, cleanup, restoration, remedial work, penalties, and fines arising CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 5 OF 7 from strict liability, or violation of any local, state, or federal law or regulation, attorney's fees, disbursements, and other response costs incurred as a result of such releases or spills are expressly within the scope of this indemnity. 13.3 Applicant shall, on SCE's request, defend any action, claim or suit asserting a claim that may be covered by this indemnity. Applicant shall pay all costs and expenses that may be incurred by SCE in enforcing this indemnity, including reasonable attorney's fees. This indemnity shall survive the termination of this Agreement for any reason. 13.4 If this Agreement is assigned pursuant to Section 10.0, Applicant agrees that this indemnification shall continue to apply to SCE and shall apply to the assignee. 14.0 LIMITATION OF LIABILITY SCE shall not be liable for any special, incidental, indirect, or consequential damages, including without limitation, loss of profits or commitments to subcontractors, and any special, incidental, indirect or consequential damages incurred by Applicant. 15.0 WRITTEN NOTICE 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, email, nationally recognized overnight courier, or first class mail, postage prepaid; to the address specified below, or to another address specified in writing by SCE. SCE SCE Offer Manager: Address: City, State, Zip: Fax #: Email: Phone: James Hodge PO Box 800 Rosemead, CA 91770 (626) 302 -6126 JAMES.HODGE @SCE.COM APPLICANT (CUSTOMER OR AUTHORIZED REPRESENTATIVE) Name: Company: Address: City, State, Zip: Fax #: Email: Phone: Kurt Wiemann City of Santa Ana 20 Civic Center Plaza M -21 Santa Ana, CA 92702 Kwiemann @santa - ana.org 714 - 647 -5639 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 otherwise on the Business Day following personal delivery; (b) if mailed, three Business Days after the date the notice is postmarked; (c) if by facsimile or email, 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. 16.0 CONFLICTS BETWEEN TERMS Should a conflict exist between the main body of this Agreement and the documents incorporated by reference, the main body of this Agreement shall CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 6 OF 7 control. Should a conflict exist In the documents Incorporated by reference, the documents shall control in the following order: 1) SCE acceptance letter(s) and Incentive estimate(s) based on solutions approved in the Application; and (2) the Partnership Agreement applicable to Applicant, and (3) Applicant's approved Application(s). Should a conflict exist between an applicable federal, State, or local law, rule, regulation, order or code and this Agreement, the law, rule, regulation, order or code shall control. Varying degrees of stringency among the main body of this Agreement, the documents incorporated by reference, and laws, rules, regulations, orders, or codes are not deemed conflicts, and the most stringent requirement shall control. Each Party shall notify the other Immediately upon the identification of any conflict or inconsistency concerning this Agreement. 17.0 CANCELLATION OF AGREEMENT: SCE may suspend or terminate the Agreement, with cause, upon written notice to the Applicant identified in Section 15 hereof. SCE may suspend or terminate the Agreement upon written notice to the Applicant if funding for the Program is depleted, or If SCE determines suspension or termination of the Agreement is necessary in order to make changes to the related Program or if SCE is ordered by the CPUC to modify or discontinue a Program and /or any agreements related to a Program. 18,0 MISCELLANEOUS This Agreement shall at all times be subject to such changes or modifications by the CPUC as it may from time to time direct in the exercise of its jurisdiction. This Agreement shall be governed and construed in accordance with the laws of the State of California, without regard to its conflict of laws provisions. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect. This Agreement constitutes the entire agreement and understanding between the Parties as to the subject matter of this Agreement and supersedes all prior agreements, representations, writings and discussions between the Parties, whether oral or written, with respect to the subject matter hereof. No amendment, modification or change to this Agreement shall be binding or effective unless expressly set forth in writing and signed by SCE's representative authorized to execute the Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date set forth below 0 Title: Name Printed: Mark Wallenrod APPLICANT CUSTOMER 14UTHORIZED AGENT) By Title: Interim City Manager Name Kevin O'Rourke Printed: RAfi. 1 'I x1113 ATTE1,Vt w C /2ita,,,,ic �� MARIA D. HUIZAR c CLERK OF THE COUNCIL CUSTOUIZEOSOLUTIONS CONTRACT -LOCAL "VFRPi✓iPF ITACID[PIS"TI'I'UTIOPiAL FART Fr RSHIP 7 OF souURK4 cxfas.0 EDISON •. vx4or.'., c" 2010 — 2012 CUSTOMIZED SOLUTIONS AGREEMENT FOR LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIPS Application Information Project Name LED Street Lighting Retrofit Scope #4 3-001- 3271 -20. M.A�S,W Service Account # 193 -12- 0500254042 UPN 7/26/12 Date Received: Calculated Approach X Customer SCE City of Santa Ana . • COMPANY NAME (Agency /Institution /Local Government) 20 Civic Center Plaza M -21 Santa Ana /CA 92702 ADDRESS CITY /STATE ZIP CODE Kurt Wiemann Kwiemann @ santa - ana.org CONTACT NAME EMAIL ADDRESS Projects Manager 714 - 647 -5639 TITLE TELEPHONE NO. FAX NO Tax Status: Corp. Non -Corp. X Exempt, Reason: Government 95- 6000785 COMPANY /CORP. FEDERAL TAX ID Authorized Agent Information COMPANY NAME CORPORATE PARENT NAME (if applicable): ADDRESS CITY /STATE ZIP CODE CONTACT NAME EMAIL ADDRESS TITLE TELEPHONE NO. FAX NO. Tax Status: Corp. _ Non -Corp. _ Exempt, Reason: COMPANY /CORP. FEDERAL TAX ID Site Information LED Street Lighting Retrofit -Scope #4 SITE NAME SITE I.D.# (if applicable) 17 /Newhope, Multi -Site Santa Ana /CA 92701 SITE ADDRESS CITY /STATE ZIP CODE Kurt Wiemann 714 - 647 -5639 3 -001- 3271 -20, Multi -Site SITE CONTACT NAME CONTACT PHONE # SCE ELECTRIC ACCOLINT(S) # CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 1 OF 7 Final Approved Savings and Incentive Estimate SOLUTIONS DESCRIPTION Code kWh KW $'Incentive Amount Exterior LED street lighting LT -48371 60,800.00 0.00 $9,958.85 Total Approved Savings/Incentive Estimates 60,800.00 0.00 $9,958.85 Incentive Adjustment due to Project Cost Incentive Adjustment due to Project Site Ca Total Estimated Incentive $9,958.85 2010 — 2012 CUSTOMIZED SOLUTIONS AGREEMENT TERMS AND CONDITIONS FOR LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIPS This Customized Solutions Agreement ( "Agreement ") is entered into by Southern California Edison Company ( "SCE ") and the Customer or the Customer's Authorized Agent, as identified on page 1 above (each deemed an "Applicant" for purposes of this Agreement). Applicant agrees to review these terms and conditions. Any implementation of a project hereunder will be deemed to be acceptance by the Applicant of such terms and conditions, and such terms and conditions shall be binding on the Applicant (both Customer and Authorized Agent, if applicable). If these terms and conditions are not acceptable to Applicant, then Applicant must notify SCE and refrain from any implementation of the project, otherwise will proceed at their own risk. SCE and Applicant may be individually referred to as a "Party" and collectively as the "Parties." 1.0 PROJECT DESCRIPTION This Agreement is limited to those projects and /or solutions described in the applicable 2010 -2012 Energy Management Solutions - Incentive Application for Business Customers (together with all forms attached thereto, and referred to herein as the "Application "). As stated in the Application, SCE shall pay incentives to Applicant, or such other party properly authorized to receive payment, in accordance with the terms and conditions of this Agreement. The Customized Solutions Program ( "Program ") is further described in the 2010 Customized Statewide Procedures Manual for Business ( "Program Manual ") and at www.sce.com /customized solutions. 2.0 DOCUMENTS INCORPORATED BY REFERENCE The following documents are hereby Incorporated by reference and made part of this Agreement: (i) Applicant's completed, signed and submitted Application, (ii) SCE acceptance letter(s) based on the energy saving solutions proposed in the Application, and (iii) the agreement (or memorandum of understanding, as applicable) to jointly deliver the 2010 -12 Energy Efficiency Partnership Program applicable to the Parties (the "Partnership Agreement "). CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 2 OF 7 3.0 ELIGIBILITY Program funding is limited and is available on a first -come, first- served basis. Funds will be reserved only upon both SCE's written approval of the Application and SCE's execution of this Agreement. Projects must meet the following requirements to be eligible for payment of Program incentives (Incentive(s) "): (1) Project site must be a nonresidential facility located within SCE's service territory; (2) SCE Customers must pay the Public Goods Charge ( "PGC ") on the SCE electric meter where the energy efficient equipment is installed; (3) Projects will be evaluated using the Calculated Approach and /or the Measured Savings Approach (also known as measurement and verification ( "M &V "); (4) Energy savings and demand reduction resulting from the project must be above and beyond baseline energy performance, which include state - mandated codes, federal- mandated codes, industry- accepted performance standards or other baseline energy performance standards as determined by SCE; (5) Projects must meet all other Program requirements, terms and conditions; (6) Applicant certifies that Applicant will not apply for or receive rebates, incentives, or services covered by this Agreement in an amount greater than the total cost of the project or solution(s) (including labor and materials); and (7) The Applicant certifies that the solutions covered by this Agreement have not and will not receive any funds from any other utility, state or local program funded by the PGC surcharge. 4.0 SUBMITTAL REQUIREMENTS FOR PAYMENT Applicant shall submit to SCE the documents described below prior to being eligible for payment of Incentives. Required documents include, but are not limited to: (1) This Agreement, fully executed and with the attached documents referenced in Item 2.0 above; (2) Complete engineering calculations to demonstrate energy savings and documentation, if applicable (including archival diskette, CD, etc.); (3) Schematic drawings and /or manufacturer specification sheets, if applicable; (4) Invoices and /or documentation to support solution costs, at SCE's request; (5) Project Installation Report; (6) Operating Report, if M &V is required; and (7) Any other documents related to the project, project site, solutions, energy savings or otherwise requested by SCE in its sole discretion, in connection with the Program. 5.0 INSPECTIONS Applicant is solely responsible for ensuring that SCE has reasonable access for all inspections, including but not limited to: (1) Pre - installation equipment inspection to examine the existing /baseline equipment and to check the accuracy of Applicant's equipment survey; (2) Post - installation equipment inspection to check installed equipment and to verify accuracy of Applicant's equipment survey; (3) Post - operation inspection to verify energy savings of the solutions after installed equipment has been operating, if requested by SCE; and (4) Inspection for any other Program - related reason that SCE, in its sole discretion, deems necessary. 6.0 REVIEW AND DISCLAIMER SCE'S AND /OR ITS CONSULTANTS' REVIEW OF THE DESIGN, CONSTRUCTION, OPERATION OR MAINTENANCE OF THE PROJECT OR ENERGY EFFICIENCY SOLUTIONS SHALL NOT CONSTITUTE ANY REPRESENTATION AS TO THE ECONOMIC OR TECHNICAL FEASIBILITY, OPERATIONAL CAPABILITY, OR RELIABILITY OF THE PROJECT OR SOLUTIONS, NOR SHALL THE APPLICANT, IN ANY WAY, MAKE SUCH A REPRESENTATION TO A THIRD PARTY. APPLICANT IS SOLELY RESPONSIBLE FOR THE ECONOMIC AND TECHNICAL FEASIBILITY, CONSTRUCTION, OPERATIONAL CAPABILITY AND RELIABILITY OF APPLICANT'S PROJECT AND SOLUTIONS. SCE MAKES NO WARRANTY, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, USE OR APPLICATION. 7.0 PAYMENTS Payment of Incentives will be made only after all Program requirements are met by Applicant to SCE's sole satisfaction. Payment of Incentives will be made as designated by Customer in Section 8 of the Application. 7.1 SCE retains sole discretion to determine the appropriate baseline values and energy savings calculations used to determine Incentive payments. Incentives shall only be paid on projects that exceed the baseline performance standards applicable when this Agreement is CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 3 OF 7 signed. SCE reserves the right to modify or cancel the Incentive amount if the actual solution installed differs from the installation as set forth in this Agreement. 7.2 The total Incentive payment under the Calculated Savings Approach or Measured Savings Approach shall not exceed the total Incentive in the Final Approved Savings Estimate (as presented on Page 2 of this Agreement). However, projects may (at the discretion of SCE) be eligible for Incentive payments in excess of the Final Approved Savings Estimate if the project results in: (a) increased actual energy savings resulting from the installation of a greater quantity of the approved solutions (as outlined in SCE's acceptance letter); (b) increased actual energy savings resulting from greater efficiencies than estimated (as outlined in the SCE acceptance letter); and /or (c) greater actual project costs than originally estimated. Partnership Incentive levels and Incentive caps shall apply according to the terms of the applicable Partnership Agreement. The total Incentive payment shall not exceed the total project cost as defined in the Program Manual. 7.3 Energy savings for which Incentives are paid cannot exceed the actual electric usage for each SCE Customer service account for which Incentives are being requested. Non -SCE supply, such as cogeneration or deliveries from another commodity supplier, does not qualify as usage from SCE (with the exception of Direct Access customers or customers paying departing load fees for which SCE collects PGC surcharges). 7.4 SCE will make the applicable Incentive payment to the designated payee, in one or more installments, only after all required and /or requested documents have been submitted to, and approved by, SCE, and the appropriate inspection(s) of the project or project site have been completed in accordance with the Program rules set forth in the Program Manual. 7.5 Except as provided below, all projects and /or solutions must be completely installed and fully operational one year from SCE's written project Application approval date to be eligible for Incentive payments. SCE reserves the right to cease making Incentive payment(s), require the return of the total or prorated Incentive payments, and /or terminate this Agreement if the project is not completely installed and fully operational by the applicable date as indicated above, unless an installation extension is granted by SCE. 8.0 PAYMENT DISQUALIFICATION Any Incentives received by Applicant shall be repaid to SCE, in whole or in part, as follows: 8.1 If Customer fails to pay the PGC surcharge throughout the Term of this Agreement. In this event, the total estimated amount of the Incentives shall be prorated and any Incentive payment shall be based on the energy savings that occur during the payment of the PGC surcharge. 8.2 If (1) Customer does not provide SCE with 100% of the related energy benefits specified in this Agreement for the life of the product or for a period of five (5) years from receipt of the Incentive, whichever is less, or (2) the energy benefit to SCE ceases in any way, including but not limited to Customer and /or the project site ceasing to receive electricity from SCE, the solution, equipment and /or project ceasing to function, or Customer ceasing the use of the equipment, solution or project site. Applicant shall refund to SCE a prorated amount of the Incentive dollars based on the actual period of time for which Customer provided the energy benefit as an SCE customer. 8.3 Applicant shall repay any Incentive amounts due to SCE within thirty (30) calendar days of notification by SCE. Repayment is required In accordance with Sections 8.1 and 8.2 above. CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 4 OF 7 SCE shall be entitled to offset against payments owed to Applicant any amount due to SCE that remains unpaid forty (40) calendar days after SCE's written demand for payment. 9.0 TERM AND TERMINATION The term of this Agreement shall commence on the last date that a Party executes this Agreement and shall terminate no later than five (5) years from SCE's written project Installation Report approval date, unless terminated earlier pursuant to this Agreement ( "Term ") 10.0 ASSIGNMENT SCE may assign this Agreement, or its rights and obligations hereunder, directly or indirectly, without prior written consent, provided SCE remains obligated for payments incurred prior to the assignment. Applicant may not assign its rights or delegate its duties without the prior written consent of SCE, which shall not be unreasonably withheld or delayed. If an assignment is requested, Applicant is obligated to provide additional information if requested by SCE. 11.0 PERMITS AND LICENSES Applicant, at its own expense, shall obtain and maintain and cause its contractors and /or subcontractors to obtain and maintain licenses and permits required by federal, state, local, or other relevant governing or regulatory bodies needed to perform its work. Any failure by Applicant or its contractors and /or subcontractors to maintain necessary licenses and permits constitutes a material breach of Applicant's obligations under this Agreement. 12.0 ADVERTISING, MARKETING AND USE OF SCE'S NAME Applicant shall not use SCE's corporate name, trademark, trade name, logo, identity or any affiliation for any reason, including soliciting customers to participate in the project, without SCE's prior written consent. Applicant shall make no representations to its customers on behalf of SCE. 13.0 INDEMNIFICATION To the extent Applicant has (i) executed a Partnership Agreement with SCE and is a direct party thereto, and (ii) such Partnership Agreement contains indemnity provisions covering Applicant's performance under the Program and this Agreement, then such Indemnity provisions shall apply to this Agreement and the remainder of this Section 13 shall have no force and effect. For all other Applicants (including, but not limited to, program participants, contractors, consultants, and others who are not direct parties to a Partnership Agreement with SCE containing such indemnity provisions), the following shall apply: 13.1 Applicant shall indemnify, defend and hold harmless, and release SCE, its affiliates, subsidiaries, parent companies, officers, directors, agents and employees, from and against all claims, demands, losses, damages, costs, expenses, and liability (legal, contractual, or otherwise), which arise from or are in any way connected with any: (i) injury to or death of persons, including but not limited to employees of SCE or Applicant; (ii) injury to property or other interests of SCE, Applicant, or any third party;(iii) violation of local, state, or federal common law, statute, or regulation, including but not limited to environmental laws or regulations; or (iv) strict liability imposed by any law or regulation; so long as such injury, violation, or strict liability (as set forth in (i) - (iv) above) arises from or is in any way connected with Applicant's performance of, or failure to perform, this Agreement, however caused, regardless of any strict liability or negligence of SCE whether active or passive, excepting only such loss, damage, cost, expense, liability, strict liability, or violation of law or regulation that is caused by the sole negligence or willful misconduct of SCE, its officers, managers or employees. 13.2 Applicant acknowledges that any claims, demands, losses, damages, costs, expenses, and legal liability that arise out of, result from, or are in any way connected with the release or spill of any legally designated hazardous material or waste as a result of the work performed under this Agreement are expressly within the scope of this indemnity, and that the costs, expenses, and legal liability for environmental investigations, monitoring, containment, abatement, removal, repair, cleanup, restoration, remedial work, penalties, and fines arising CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 5 OF 7 from strict liability, or violation of any local, state, or federal law or regulation, attorney's fees, disbursements, and other response costs incurred as a result of such releases or spills are expressly within the scope of this indemnity. 13.3 Applicant shall, on SCE's request, defend any action, claim or suit asserting a claim that may be covered by this indemnity. Applicant shall pay all costs and expenses that may be incurred by SCE in enforcing this indemnity, including reasonable attorney's fees. This indemnity shall survive the termination of this Agreement for any reason. 13.4 If this Agreement is assigned pursuant to Section 10.0, Applicant agrees that this indemnification shall continue to apply to SCE and shall apply to the assignee. 14.0 LIMITATION OF LIABILITY SCE shall not be liable for any special, incidental, indirect, or consequential damages, including without limitation, loss of profits or commitments to subcontractors, and any special, incidental, indirect or consequential damages incurred by Applicant. 15.0 WRITTEN NOTICE 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, email, nationally recognized overnight courier, or first class mail, postage prepaid; to the address specified below, or to another address specified in writing by SCE. SCE SCE Offer Manager: Address: City, State, Zip: Fax #: Email: Phone: James Hodge PO Box 800 Rosemead, CA 91770 (626) 302 -6126 JAMES.HODGE @SCE.COM APPLICANT (CUSTOMER OR AUTHORIZED REPRESENTATIVE) Name: Company: Address: City, State, Zip: Fax #: Email: Phone: Kurt Wiemann City of Santa Ana 20 Civic Center Plaza M -21 Santa Ana, CA 92702 Kwiemann @santa - ana.org 714- 647 -5639 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 otherwise on the Business Day following personal delivery; (b) if mailed, three Business Days after the date the notice is postmarked; (c) if by facsimile or email, 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. 16.0 CONFLICTS BETWEEN TERMS Should a conflict exist between the main body of this Agreement and the documents incorporated by reference, the main body of this Agreement shall CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 6 OF 7 control. Should a conflict exist In the documents Incorporated by reference, the documents shall control in the following order: 1) SCE acceptance letter(s) and Incentive estimate(s) based on solutions approved in the Application; and (2) the Partnership Agreement applicable to Applicant, and (3) Applicant's approved Application(s). Should a conflict exist between an applicable federal, State, or local law, rule, regulation, order or code and this Agreement, the law, rule, regulation, order or code shall control. Varying degrees of stringency among the main body of this Agreement, the documents incorporated by reference, and laws, rules, regulations, orders, or codes are not deemed conflicts, and the most stringent requirement shall control. Each Party shall notify the other Immediately upon the identification of any conflict or inconsistency concerning this Agreement. 17.0 CANCELLATION OF AGREEMENT: SCE may suspend or terminate the Agreement, with cause, upon written notice to the Applicant identified in Section 15 hereof. SCE may suspend or terminate the Agreement upon written notice to the Applicant if funding for the Program is depleted, or If SCE determines suspension or termination of the Agreement is necessary in order to make changes to the related Program or if SCE is ordered by the CPUC to modify or discontinue a Program and /or any agreements related to a Program. 18,0 MISCELLANEOUS This Agreement shall at all times be subject to such changes or modifications by the CPUC as it may from time to time direct in the exercise of its jurisdiction. This Agreement shall be governed and construed in accordance with the laws of the State of California, without regard to its conflict of laws provisions. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect. This Agreement constitutes the entire agreement and understanding between the Parties as to the subject matter of this Agreement and supersedes all prior agreements, representations, writings and discussions between the Parties, whether oral or written, with respect to the subject matter hereof. No amendment, modification or change to this Agreement shall be binding or effective unless expressly set forth in writing and signed by SCE's representative authorized to execute the Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date set forth below 0 Title: Name Printed: Mark Wallenrod APPLICANT CUSTOMER 14UTHORIZED AGENT) By Title: Interim City Manager Name Kevin O'Rourke Printed: RAfi. 1 'I x1113 ATTE1,Vt w C /2ita,,,,ic �� MARIA D. HUIZAR c CLERK OF THE COUNCIL CUSTOUIZEOSOLUTIONS CONTRACT -LOCAL "VFRPi✓iPF ITACID[PIS"TI'I'UTIOPiAL FART Fr RSHIP 7 OF .J EDISON 50,nm 2010 — 2012 CUSTOMIZED SOLUTIONS AGREEMENT FOR LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIPS Application Project Name Santa Ana LED Street Lighting 3-001 - 727146. MWt4S,te Service Account # UPN 193 -12- 0500255252 7/27/12 Date Received: SCE Customer Information Calculated Approach X City of Santa Ana COMPANY NAME (Agency /Institution /Local Government) 20 Civic Center Plaza M -21 Santa Ana /CA 92702 ADDRESS CITY /STATE ZIP CODE Kurt Wiemann kwiemann @santa- ana.org CONTACT NAME EMAIL ADDRESS Projects Manager 714 - 647 -5639 TITLE TELEPHONE NO. FAX NO Tax Status: Corp. Non -Corp. X Exempt, Reason: Government 95- 6000785 COMPANY /CORP. FEDERAL TAX ID Authorized Agent COMPANY NAME CORPORATE PARENT NAME (if applicable): ADDRESS CITY /STATE ZIP CODE CONTACT NAME EMAIL ADDRESS TITLE TELEPHONE NO. FAX NO. Tax Status: Corp. Non -Corp. _ Exempt. Reason: COMPANY /CORP. FEDERAL TAX ID Site Information LED Street Lighting Retrofit -Scope #4 SITE NAME SITE I.D.# (if applicable) Broadway /Washington, Multi -Site Santa Ana /CA 92701 SITE ADDRESS Kurt Wiemann SITE CONTACT NAME CITY /STATE _ 714- 647 -5639 3- 001 - 3271 -46, Multi -Site CONTACT PHONE # SCE ELECTRIC ACCOUNT(S) # CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP ZIP CODE 1OF7 Final Approved Savings and Incentive Estimate Exterior LED street lighting LT -48371 A,i'f 140,226.00 $15,424.86 Total Approved Savin slincentive Estimates 140,226.00 0.00 $15,424.86 Incentive Adjustment due to Project Cost Incentive Adjustment due to Project Site Ca Total Estimated Incentive $15,424.86 2010 — 2012 CUSTOMIZED SOLUTIONS AGREEMENT TERMS AND CONDITIONS FOR LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIPS This Customized Solutions Agreement ( "Agreement ") is entered into by Southern California Edison Company ( "SCE ") and the Customer or the Customer's Authorized Agent, as identified on page 1 above (each deemed an "Applicant" for purposes of this Agreement). Applicant agrees to review these terms and conditions. Any implementation of a project hereunder will be deemed to be acceptance by the Applicant of such terms and conditions, and such terms and conditions shall be binding on the Applicant (both Customer and Authorized Agent, if applicable). If these terms and conditions are not acceptable to Applicant, then Applicant must notify SCE and refrain from any implementation of the project, otherwise will proceed at their own risk. SCE and Applicant may be individually referred to as a "Party" and collectively as the "Parties." 1.0 PROJECT DESCRIPTION This Agreement is limited to those projects and /or solutions described in the applicable 2010 -2012 Energy Management Solutions - Incentive Application for Business Customers (together with all forms attached thereto, and referred to herein as the 'Application "). As stated in the Application, SCE shall pay incentives to Applicant, or such other party properly authorized to receive payment, in accordance with the terms and conditions of this Agreement. The Customized Solutions Program ( "Program ") is further described in the 2010 Customized Statewide Procedures Manual for Business ( "Program Manual ") and at www.sce.com /customized solutions. 2.0 DOCUMENTS INCORPORATED BY REFERENCE The following documents are hereby Incorporated by reference and made part of this Agreement: (i) Applicant's completed, signed and submitted Application, (ii) SCE acceptance letter(s) based on the energy saving solutions proposed in the Application, and (iii) the agreement (or memorandum of understanding, as applicable) to jointly deliver the 2010 -12 Energy Efficiency Partnership Program applicable to the Parties (the "Partnership Agreement "). CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 2 OF 7 3.0 ELIGIBILITY Program funding is limited and is available on a first -come, first -served basis. Funds will be reserved only upon both SCE's written approval of the Application and SCE's execution of this Agreement. Projects must meet the following requirements to be eligible for payment of Program incentives ( "Incentive(s) "): (1) Project site must be a nonresidential facility located within SCE's service territory; (2) SCE Customers must pay the Public Goods Charge ( "PGC ") on the SCE electric meter where the energy efficient equipment is installed; (3) Projects will be evaluated using the Calculated Approach and /or the Measured Savings Approach (also known as measurement and verification ( "M &V"); (4) Energy savings and demand reduction resulting from the project must be above and beyond baseline energy performance, which include state - mandated codes, federal- mandated codes, industry- accepted performance standards or other baseline energy performance standards as determined by SCE; (5) Projects must meet all other Program requirements, terms and conditions; (6) Applicant certifies that Applicant will not apply for or receive rebates, incentives, or services covered by this Agreement in an amount greater than the total cost of the project or solution(s) (including labor and materials); and (7) The Applicant certifies that the solutions covered by this Agreement have not and will not receive any funds from any other utility, state or local program funded by the PGC surcharge. 4.0 SUBMITTAL REQUIREMENTS FOR PAYMENT Applicant shall submit to SCE the documents described below prior to being eligible for payment of Incentives. Required documents include, but are not limited to: (1) This Agreement, fully executed and with the attached documents referenced in Item 2.0 above; (2) Complete engineering calculations to demonstrate energy savings and documentation, if applicable (including archival diskette, CD, etc.); (3) Schematic drawings and /or manufacturer specification sheets, if applicable; (4) Invoices and /or documentation to support solution costs, at SCE's request; (5) Project Installation Report; (6) Operating Report, if M &V is required; and (7) Any other documents related to the project, project site, solutions, energy savings or otherwise requested by SCE in its sole discretion, in connection with the Program. 5.0 INSPECTIONS Applicant is solely responsible for ensuring that SCE has reasonable access for all inspections, including but not limited to: (1) Pre - installation equipment inspection to examine the existing /baseline equipment and to check the accuracy of Applicant's equipment survey; (2) Post - installation equipment inspection to check installed equipment and to verify accuracy of Applicant's equipment survey; (3) Post - operation inspection to verify energy savings of the solutions after installed equipment has been operating, if requested by SCE; and (4) Inspection for any other Program - related reason that SCE, in its sole discretion, deems necessary. 6.0 REVIEW AND DISCLAIMER SCE'S AND /OR ITS CONSULTANTS' REVIEW OF THE DESIGN, CONSTRUCTION, OPERATION OR MAINTENANCE OF THE PROJECT OR ENERGY EFFICIENCY SOLUTIONS SHALL NOT CONSTITUTE ANY REPRESENTATION AS TO THE ECONOMIC OR TECHNICAL FEASIBILITY, OPERATIONAL CAPABILITY, OR RELIABILITY OF THE PROJECT OR SOLUTIONS, NOR SHALL THE APPLICANT, IN ANY WAY, MAKE SUCH A REPRESENTATION TO A THIRD PARTY. APPLICANT IS SOLELY RESPONSIBLE FOR THE ECONOMIC AND TECHNICAL FEASIBILITY, CONSTRUCTION, OPERATIONAL CAPABILITY AND RELIABILITY OF APPLICANT'S PROJECT AND SOLUTIONS. SCE MAKES NO WARRANTY, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, USE OR APPLICATION. 7.0 PAYMENTS Payment of Incentives will be made only after all Program requirements are met by Applicant to SCE's sole satisfaction. Payment of Incentives will be made as designated by Customer in Section 8 of the Application. 7.1 SCE retains sole discretion to determine the appropriate baseline values and energy savings calculations used to determine Incentive payments. Incentives shall only be paid on projects that exceed the baseline performance standards applicable when this Agreement is CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 3 OF 7 signed. SCE reserves the right to modify or cancel the Incentive amount if the actual solution installed differs from the installation as set forth in this Agreement. 7.2 The total Incentive payment under the Calculated Savings Approach or Measured Savings Approach shall not exceed the total Incentive in the Final Approved Savings Estimate (as presented on Page 2 of this Agreement). However, projects may (at the discretion of SCE) be eligible for Incentive payments in excess of the Final Approved Savings Estimate if the project results in: (a) increased actual energy savings resulting from the installation of a greater quantity of the approved solutions (as outlined in SCE's acceptance letter); (b) increased actual energy savings resulting from greater efficiencies than estimated (as outlined in the SCE acceptance letter); and /or (c) greater actual project costs than originally estimated. Partnership Incentive levels and Incentive caps shall apply according to the terms of the applicable Partnership Agreement. The total Incentive payment shall not exceed the total project cost as defined in the Program Manual. 7.3 Energy savings for which Incentives are paid cannot exceed the actual electric usage for each SCE Customer service account for which Incentives are being requested. Non -SCE supply, such as cogeneration or deliveries from another commodity supplier, does not qualify as usage from SCE (with the exception of Direct Access customers or customers paying departing load fees for which SCE collects PGC surcharges). 7.4 SCE will make the applicable Incentive payment to the designated payee, in one or more installments, only after all required and /or requested documents have been submitted to, and approved by, SCE, and the appropriate inspection(s) of the project or project site have been completed in accordance with the Program rules set forth in the Program Manual. 7.5 Except as provided below, all projects and /or solutions must be completely installed and fully operational one year from SCE's written project Application approval date to be eligible for Incentive payments. SCE reserves the right to cease making Incentive payment(s), require the return of the total or prorated Incentive payments, and /or terminate this Agreement if the project is not completely installed and fully operational by the applicable date as indicated above, unless an installation extension is granted by SCE. 8.0 PAYMENT DISQUALIFICATION Any Incentives received by Applicant shall be repaid to SCE, in whole or in part, as follows: 8.1 If Customer fails to pay the PGC surcharge throughout the Term of this Agreement. In this event, the total estimated amount of the Incentives shall be prorated and any Incentive payment shall be based on the energy savings that occur during the payment of the PGC surcharge. 8.2 If (1) Customer does not provide SCE with 100% of the related energy benefits specified in this Agreement for the life of the product or for a period of five (5) years from receipt of the Incentive, whichever is less, or (2) the energy benefit to SCE ceases in any way, including but not limited to Customer and /or the project site ceasing to receive electricity from SCE, the solution, equipment and /or project ceasing to function, or Customer ceasing the use of the equipment, solution or project site. Applicant shall refund to SCE a prorated amount of the Incentive dollars based on the actual period of time for which Customer provided the energy benefit as an SCE customer. 8.3 Applicant shall repay any Incentive amounts due to SCE within thirty (30) calendar days of notification by SCE. Repayment is required In accordance with Sections 8.1 and 8.2 above. CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 4 Of 7 SCE shall be entitled to offset against payments owed to Applicant any amount due to SCE that remains unpaid forty (40) calendar days after SCE's written demand for payment. 9.0 TERM AND TERMINATION The term of this Agreement shall commence on the last date that a Party executes this Agreement and shall terminate no later than five (5) years from SCE's written project Installation Report approval date, unless terminated earlier pursuant to this Agreement ( "Term ") 10.0 ASSIGNMENT SCE may assign this Agreement, or its rights and obligations hereunder, directly or indirectly, without prior written consent, provided SCE remains obligated for payments incurred prior to the assignment. Applicant may not assign its rights or delegate its duties without the prior written consent of SCE, which shall not be unreasonably withheld or delayed. If an assignment is requested, Applicant is obligated to provide additional information if requested by SCE. 11.0 PERMITS AND LICENSES Applicant, at its own expense, shall obtain and maintain and cause its contractors and /or subcontractors to obtain and maintain licenses and permits required by federal, state, local, or other relevant governing or regulatory bodies needed to perform its work. Any failure by Applicant or its contractors and /or subcontractors to maintain necessary licenses and permits constitutes a material breach of Applicant's obligations under this Agreement. 12.0 ADVERTISING, MARKETING AND USE OF SCE'S NAME Applicant shall not use SCE's corporate name, trademark, trade name, logo, identity or any affiliation for any reason, including soliciting customers to participate in the project, without SCE's prior written consent. Applicant shall make no representations to its customers on behalf of SCE. 13.0 INDEMNIFICATION To the extent Applicant has (i) executed a Partnership Agreement with SCE and is a direct party thereto, and (ii) such Partnership Agreement contains indemnity provisions covering Applicant's performance under the Program and this Agreement, then such Indemnity provisions shall apply to this Agreement and the remainder of this Section 13 shall have no force and effect. For all other Applicants (including, but not limited to, program participants, contractors, consultants, and others who are not direct parties to a Partnership Agreement with SCE containing such indemnity provisions), the following shall apply: 13.1 Applicant shall indemnify, defend and hold harmless, and release SCE, its affiliates, subsidiaries, parent companies, officers, directors, agents and employees, from and against all claims, demands, losses, damages, costs, expenses, and liability (legal, contractual, or otherwise), which arise from or are in any way connected with any: (i) injury to or death of persons, including but not limited to employees of SCE or Applicant; (ii) injury to property or other interests of SCE, Applicant, or any third party;(iii) violation of local, state, or federal common law, statute, or regulation, including but not limited to environmental laws or regulations; or (iv) strict liability imposed by any law or regulation; so long as such injury, violation, or strict liability (as set forth in (i) - (iv) above) arises from or is in any way connected with Applicant's performance of, or failure to perform, this Agreement, however caused, regardless of any strict liability or negligence of SCE whether active or passive, excepting only such loss, damage, cost, expense, liability, strict liability, or violation of law or regulation that is caused by the sole negligence or willful misconduct of SCE, its officers, managers or employees. 13.2 Applicant acknowledges that any claims, demands, losses, damages, costs, expenses, and legal liability that arise out of, result from, or are in any way connected with the release or spill of any legally designated hazardous material or waste as a result of the work performed under this Agreement are expressly within the scope of this indemnity, and that the costs, expenses, and legal liability for environmental investigations, monitoring, containment, abatement, removal, repair, cleanup, restoration, remedial work, penalties, and fines arising CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 5 OF 7 from strict liability, or violation of any local, state, or federal law or regulation, attorney's fees, disbursements, and other response costs incurred as a result of such releases or spills are expressly within the scope of this indemnity. 13.3 Applicant shall, on SCE's request, defend any action, claim or suit asserting a claim that may be covered by this indemnity. Applicant shall pay all costs and expenses that may be incurred by SCE in enforcing this indemnity, including reasonable attorney's fees. This indemnity shall survive the termination of this Agreement for any reason. 13.4 If this Agreement is assigned pursuant to Section 10.0, Applicant agrees that this indemnification shall continue to apply to SCE and shall apply to the assignee. 14.0 LIMITATION OF LIABILITY SCE shall not be liable for any special, incidental, indirect, or consequential damages, including without limitation, loss of profits or commitments to subcontractors, and any special, incidental, indirect or consequential damages incurred by Applicant. 15.0 WRITTEN NOTICE 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, email, nationally recognized overnight courier, or first class mail, postage prepaid; to the address specified below, or to another address specified in writing by SCE. SCE SCE Offer Manager: Address: City, State, Zip: Fax #: Email: Phone: James Hodge PO Box 800 Rosemead, CA 91770 626- 302 -6126 James. Hodge @sce.com (626) 302 -0654 APPLICANT (CUSTOMER OR AUTHORIZED REPRESENTATIVE) Name: Company: Address: City, State, Zip: Fax #: Email: Phone: Kurt Wiemann City of Santa Ana 20 Civic Center Plaza M -21 Santa Ana, CA 92702 Kwiemann @sana - ana.org 714- 647 -5639 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 otherwise on the Business Day following personal delivery; (b) if mailed, three Business Days after the date the notice is postmarked; (c) if by facsimile or email, 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. 16.0 CONFLICTS BETWEEN TERMS Should a conflict exist between the main body of this Agreement and the documents incorporated by reference, the main body of this Agreement shall CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 6 OF 7 control. Should a conflict exist in the documents incorporated by reference, the documents shall control in the following order: 1) SCE acceptance letter(s) and Incentive estimate(s) based on solutions approved in the Application; and (2) the Partnership Agreement applicable to Applicant, and (3) Applicant's approved Application(s). Should a conflict exist between an applicable federal, State, or local law, rule, regulation, order or code and this Agreement, the law, rule, regulation, order or code shall control. Varying degrees of stringency among the main body of this Agreement, the documents incorporated by reference, and laws, rules, regulations, orders, or codes are not deemed conflicts, and the most stringent requirement shall control. Each Party shall notify the other immediately upon the identification of any conflict or inconsistency concerning this Agreement. 17.0 CANCELLATION OF AGREEMENT: SCE may suspend or terminate the Agreement, with cause, upon written notice to the Applicant identified in Section 15 hereof. SCE may suspend or terminate the Agreement upon written notice to the Applicant if funding for the Program is depleted, or if SCE determines suspension or termination of the Agreement is necessary in order to make changes to the related Program or if SCE is ordered by the CPUC to modify or discontinue a Program and /or any agreements related to a Program. 18.0 MISCELLANEOUS This Agreement shall at all times be subject to such changes or modifications by the CPUC as it may from time to time direct in the exercise of its jurisdiction. This Agreement shall be governed and construed in accordance with the laws of the State of California, without regard to its conflict of laws provisions. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect. This Agreement constitutes the entire agreement and understanding between the Parties as to the subject matter of this Agreement and supersedes all prior agreements, representations, writings and discussions between the Parties, whether oral or written, with respect to the subject matter hereof. No amendment, modification or change to this Agreement shall be binding or effective unless expressly set forth in writing and signed by SCE's representative authorized to execute the Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date set forth below 0 SCE APPLICANT (CUSTOMER OR AUTHORIZED AGENT) Director of Programs and Operations, Title: Customer Energy Efficiency and Solar Title: Name Printed: Mark Wallenrod Date: Name Printed: Date: CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 7 OF 7 control. Should a conflict exist In the documents Incorporated by reference, the documents shall control in the following order: 1) SCE acceptance letter(s) and Incentive estimate(s) based on solutions approved in the Application; and (2) the Partnership Agreement applicable to Applicant, and (3) Applicant's approved Application(s). Should a conflict exist between an applicable federal, State, or local law, rule, regulation, order or code and this Agreement, the law, rule, regulation, order or code shall control. Varying degrees of stringency among the main body of this Agreement, the documents incorporated by reference, and laws, rules, regulations, orders, or codes are not deemed conflicts, and the most stringent requirement shall control. Each Party shall notify the other Immediately upon the identification of any conflict or inconsistency concerning this Agreement. 17.0 CANCELLATION OF AGREEMENT: SCE may suspend or terminate the Agreement, with cause, upon written notice to the Applicant identified in Section 15 hereof. SCE may suspend or terminate the Agreement upon written notice to the Applicant if funding for the Program is depleted, or If SCE determines suspension or termination of the Agreement is necessary in order to make changes to the related Program or if SCE is ordered by the CPUC to modify or discontinue a Program and /or any agreements related to a Program. 18,0 MISCELLANEOUS This Agreement shall at all times be subject to such changes or modifications by the CPUC as it may from time to time direct in the exercise of its jurisdiction. This Agreement shall be governed and construed in accordance with the laws of the State of California, without regard to its conflict of laws provisions. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect. This Agreement constitutes the entire agreement and understanding between the Parties as to the subject matter of this Agreement and supersedes all prior agreements, representations, writings and discussions between the Parties, whether oral or written, with respect to the subject matter hereof. No amendment, modification or change to this Agreement shall be binding or effective unless expressly set forth in writing and signed by SCE's representative authorized to execute the Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date set forth below 0 Title: Name Printed: Mark Wallenrod APPLICANT CUSTOMER 14UTHORIZED AGENT) By Title: Interim City Manager Name Kevin O'Rourke Printed: RAfi. 1 'I x1113 ATTE1,Vt w C /2ita,,,,ic �� MARIA D. HUIZAR c CLERK OF THE COUNCIL CUSTOUIZEOSOLUTIONS CONTRACT -LOCAL "VFRPi✓iPF ITACID[PIS"TI'I'UTIOPiAL FART Fr RSHIP 7 OF EDISa .J 2010 – 2012 CUSTOMIZED SOLUTIONS AGREEMENT FOR LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIPS Application Project Name Santa Ana LED Street Lighting 3-001- 3271 -06, Multi -Site Service Account # UPN 193 -12- 0500255252 Date Received. 7/27/12 Calculated Approach X Dmer Informatic City of Santa Ana COMPANY NAME (Agency /Institution /Local Government) 20 Civic Center Plaza M -21 Santa Ana /CA 92702 ADDRESS CITY /STATE ZIP CODE Kurt Wiemann kwiemann @santa- ana.org CONTACT NAME EMAIL ADDRESS Projects Manager 714 - 647 -5639 TITLE TELEPHONE NO. FAX NO Tax Status: Corp. _ Non -Corp. X Exempt, Reason. Government 95- 6000785 COMPANY /CORP. FEDERAL TAX ID Authorized Agent Information NAME CORPORATE PARENT NAME (if applicable): ADDRESS CITY /STATE ZIP CODE CONTACT NAME EMAIL ADDRESS TITLE TELEPHONE NO. FAX NO. Tax Status: Corp. Non-Corp. Exempt, Reason: Site Information COMPANY /CORP. FEDERAL TAX ID — LED Street Lighting Retrofit -Scope #4 SITE NAME SITE 1. D.# (if applicable) Broadway /Washington, Multi -Site Santa Ana /CA 92701 SITE ADDRESS CITYlSTATE ZIP CODE Kurt Wiemann 714 - 647 -5639 3- 001- 3271 -46, Multi -Site SITE CONTACT NAME CONTACT PHONE # SCE ELECTRIC ACCOUNT(S) # CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 1 OF 7 Final Approved Savings and Incentive Estimate 5E?E�i rt€ iS kESCRIPT�ION .,may, F) Exterior LED street lighting LT -48371 140,226.00 $15,424.86 Total Approved Savings/Incentive Estimates 140,226.00 0.00 $15,424.86 Incentive Adjustment due to Project Cost Incentive Adjustment due to Project Site Ca Total Estimated Incentive $15,424.86 2010 — 2012 CUSTOMIZED SOLUTIONS AGREEMENT TERMS AND CONDITIONS FOR LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIPS This Customized Solutions Agreement ( "Agreement ") is entered into by Southern California Edison Company ( "SCE ") and the Customer or the Customer's Authorized Agent, as identified on page 1 above (each deemed an "Applicant" for purposes of this Agreement). Applicant agrees to review these terms and conditions. Any implementation of a project hereunder will be deemed to be acceptance by the Applicant of such terms and conditions, and such terms and conditions shall be binding on the Applicant (both Customer and Authorized Agent, if applicable). If these terms and conditions are not acceptable to Applicant, then Applicant must notify SCE and refrain from any implementation of the project, otherwise will proceed at their own risk. SCE and Applicant may be individually referred to as a "Party" and collectively as the "Parties." 1.0 PROJECT DESCRIPTION This Agreement is limited to those projects and /or solutions described in the applicable 2010 -2012 Energy Management Solutions - Incentive Application for Business Customers (together with all forms attached thereto, and referred to herein as the "Application "). As stated in the Application, SCE shall pay incentives to Applicant, or such other party properly authorized to receive payment, in accordance with the terms and conditions of this Agreement. The Customized Solutions Program ( "Program ") is further described in the 2010 Customized Statewide Procedures Manual for Business ( "Program Manual ") and at www.sce.com /customized solutions. 2.0 DOCUMENTS INCORPORATED BY REFERENCE The following documents are hereby Incorporated by reference and made part of this Agreement: (i) Applicant's completed, signed and submitted Application, (ii) SCE acceptance letter(s) based on the energy saving solutions proposed in the Application, and (iii) the agreement (or memorandum of understanding, as applicable) to jointly deliver the 2010 -12 Energy Efficiency Partnership Program applicable to the Parties (the "Partnership Agreement "). CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 2 OF 7 3.0 ELIGIBILITY Program funding is limited and is available on a first -come, first - served basis. Funds will be reserved only upon both SCE's written approval of the Application and SCE's execution of this Agreement. Projects must meet the following requirements to be eligible for payment of Program incentives ( "Incentive(s) "): (1) Project site must be a nonresidential facility located within SCE's service territory; (2) SCE Customers must pay the Public Goods Charge ( "PGC ") on the SCE electric meter where the energy efficient equipment is installed; (3) Projects will be evaluated using the Calculated Approach and /or the Measured Savings Approach (also known as measurement and verification ( "M &V"); (4) Energy savings and demand reduction resulting from the project must be above and beyond baseline energy performance, which include state - mandated codes, federal- mandated codes, industry- accepted performance standards or other baseline energy performance standards as determined by SCE; (5) Projects must meet all other Program requirements, terms and conditions; (6) Applicant certifies that Applicant will not apply for or receive rebates, incentives, or services covered by this Agreement in an amount greater than the total cost of the project or solution(s) (including labor and materials); and (7) The Applicant certifies that the solutions covered by this Agreement have not and will not receive any funds from any other utility, state or local program funded by the PGC surcharge. 4.0 SUBMITTAL REQUIREMENTS FOR PAYMENT Applicant shall submit to SCE the documents described below prior to being eligible for payment of Incentives. Required documents include, but are not limited to: (1) This Agreement, fully executed and with the attached documents referenced in Item 2.0 above; (2) Complete engineering calculations to demonstrate energy savings and documentation, if applicable (including archival diskette, CD, etc.); (3) Schematic drawings and /or manufacturer specification sheets, if applicable; (4) Invoices and /or documentation to support solution costs, at SCE's request; (5) Project Installation Report; (6) Operating Report, if M &V is required; and (7) Any other documents related to the project, project site, solutions, energy savings or otherwise requested by SCE in its sole discretion, in connection with the Program. 5.0 INSPECTIONS Applicant is solely responsible for ensuring that SCE has reasonable access for all inspections, including but not limited to: (1) Pre - installation equipment inspection to examine the existing /baseline equipment and to check the accuracy of Applicant's equipment survey; (2) Post - installation equipment inspection to check installed equipment and to verify accuracy of Applicant's equipment survey; (3) Post - operation inspection to verify energy savings of the solutions after installed equipment has been operating, if requested by SCE; and (4) Inspection for any other Program - related reason that SCE, in its sole discretion, deems necessary. 6.0 REVIEW AND DISCLAIMER SCE'S AND /OR ITS CONSULTANTS' REVIEW OF THE DESIGN, CONSTRUCTION, OPERATION OR MAINTENANCE OF THE PROJECT OR ENERGY EFFICIENCY SOLUTIONS SHALL NOT CONSTITUTE ANY REPRESENTATION AS TO THE ECONOMIC OR TECHNICAL FEASIBILITY, OPERATIONAL CAPABILITY, OR RELIABILITY OF THE PROJECT OR SOLUTIONS, NOR SHALL THE APPLICANT, IN ANY WAY, MAKE SUCH A REPRESENTATION TO A THIRD PARTY. APPLICANT IS SOLELY RESPONSIBLE FOR THE ECONOMIC AND TECHNICAL FEASIBILITY, CONSTRUCTION, OPERATIONAL CAPABILITY AND RELIABILITY OF APPLICANT'S PROJECT AND SOLUTIONS. SCE MAKES NO WARRANTY, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, USE OR APPLICATION. 7.0 PAYMENTS Payment of Incentives will be made only after all Program requirements are met by Applicant to SCE's sole satisfaction. Payment of Incentives will be made as designated by Customer in Section 8 of the Application. 7.1 SCE retains sole discretion to determine the appropriate baseline values and energy savings calculations used to determine Incentive payments. Incentives shall only be paid on projects that exceed the baseline performance standards applicable when this Agreement is CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 3 OF 7 signed. SCE reserves the right to modify or cancel the Incentive amount if the actual solution installed differs from the installation as set forth in this Agreement. 7.2 The total Incentive payment under the Calculated Savings Approach or Measured Savings Approach shall not exceed the total Incentive in the Final Approved Savings Estimate (as presented on Page 2 of this Agreement). However, projects may (at the discretion of SCE) be eligible for Incentive payments in excess of the Final Approved Savings Estimate if the project results in: (a) increased actual energy savings resulting from the installation of a greater quantity of the approved solutions (as outlined in SCE's acceptance letter); (b) increased actual energy savings resulting from greater efficiencies than estimated (as outlined in the SCE acceptance letter); and /or (c) greater actual project costs than originally estimated. Partnership Incentive levels and Incentive caps shall apply according to the terms of the applicable Partnership Agreement. The total Incentive payment shall not exceed the total project cost as defined in the Program Manual. 7.3 Energy savings for which Incentives are paid cannot exceed the actual electric usage for each SCE Customer service account for which Incentives are being requested. Non -SCE supply, such as cogeneration or deliveries from another commodity supplier, does not qualify as usage from SCE (with the exception of Direct Access customers or customers paying departing load fees for which SCE collects PGC surcharges). 7.4 SCE will make the applicable Incentive payment to the designated payee, in one or more installments, only after all required and /or requested documents have been submitted to, and approved by, SCE, and the appropriate inspection(s) of the project or project site have been completed in accordance with the Program rules set forth in the Program Manual. 7.5 Except as provided below, all projects and /or solutions must be completely installed and fully operational one year from SCE's written project Application approval date to be eligible for Incentive payments. SCE reserves the right to cease making Incentive payment(s), require the return of the total or prorated Incentive payments, and /or terminate this Agreement if the project is not completely installed and fully operational by the applicable date as indicated above, unless an installation extension is granted by SCE. 8.0 PAYMENT DISQUALIFICATION Any Incentives received by Applicant shall be repaid to SCE, in whole or in part, as follows: 8.1 If Customer fails to pay the PGC surcharge throughout the Term of this Agreement. In this event, the total estimated amount of the Incentives shall be prorated and any Incentive payment shall be based on the energy savings that occur during the payment of the PGC surcharge. 8.2 If (1) Customer does not provide SCE with 100% of the related energy benefits specified in this Agreement for the life of the product or for a period of five (5) years from receipt of the Incentive, whichever is less, or (2) the energy benefit to SCE ceases in any way, including but not limited to Customer and /or the project site ceasing to receive electricity from SCE, the solution, equipment and /or project ceasing to function, or Customer ceasing the use of the equipment, solution or project site. Applicant shall refund to SCE a prorated amount of the Incentive dollars based on the actual period of time for which Customer provided the energy benefit as an SCE customer. 8.3 Applicant shall repay any Incentive amounts due to SCE within thirty (30) calendar days of notification by SCE. Repayment is required In accordance with Sections 8.1 and 8.2 above. CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 4 OF 7 SCE shall be entitled to offset against payments owed to Applicant any amount due to SCE that remains unpaid forty (40) calendar days after SCE's written demand for payment. 9.0 TERM AND TERMINATION The term of this Agreement shall commence on the last date that a Party executes this Agreement and shall terminate no later than five (5) years from SCE's written project Installation Report approval date, unless terminated earlier pursuant to this Agreement ( "Term "). 10.0 ASSIGNMENT SCE may assign this Agreement, or its rights and obligations hereunder, directly or indirectly, without prior written consent, provided SCE remains obligated for payments incurred prior to the assignment. Applicant may not assign its rights or delegate its duties without the prior written consent of SCE, which shall not be unreasonably withheld or delayed. If an assignment is requested, Applicant is obligated to provide additional information if requested by SCE. 11.0 PERMITS AND LICENSES Applicant, at its own expense, shall obtain and maintain and cause its contractors and /or subcontractors to obtain and maintain licenses and permits required by federal, state, local, or other relevant governing or regulatory bodies needed to perform its work. Any failure by Applicant or its contractors and /or subcontractors to maintain necessary licenses and permits constitutes a material breach of Applicant's obligations under this Agreement. 12.0 ADVERTISING, MARKETING AND USE OF SCE'S NAME Applicant shall not use SCE's corporate name, trademark, trade name, logo, identity or any affiliation for any reason, including soliciting customers to participate in the project, without SCE's prior written consent. Applicant shall make no representations to its customers on behalf of SCE. 13.0 INDEMNIFICATION To the extent Applicant has (i) executed a Partnership Agreement with SCE and is a direct party thereto, and (ii) such Partnership Agreement contains indemnity provisions covering Applicant's performance under the Program and this Agreement, then such Indemnity provisions shall apply to this Agreement and the remainder of this Section 13 shall have no force and effect. For all other Applicants (including, but not limited to, program participants, contractors, consultants, and others who are not direct parties to a Partnership Agreement with SCE containing such indemnity provisions), the following shall apply: 13.1 Applicant shall indemnify, defend and hold harmless, and release SCE, its affiliates, subsidiaries, parent companies, officers, directors, agents and employees, from and against all claims, demands, losses, damages, costs, expenses, and liability (legal, contractual, or otherwise), which arise from or are in any way connected with any: (i) injury to or death of persons, including but not limited to employees of SCE or Applicant; (ii) injury to property or other interests of SCE, Applicant, or any third party;(iii) violation of local, state, or federal common law, statute, or regulation, including but not limited to environmental laws or regulations; or (iv) strict liability imposed by any law or regulation; so long as such injury, violation, or strict liability (as set forth in (i) - (iv) above) arises from or is in any way connected with Applicant's performance of, or failure to perform, this Agreement, however caused, regardless of any strict liability or negligence of SCE whether active or passive, excepting only such loss, damage, cost, expense, liability, strict liability, or violation of law or regulation that is caused by the sole negligence or willful misconduct of SCE, its officers, managers or employees. 13.2 Applicant acknowledges that any claims, demands, losses, damages, costs, expenses, and legal liability that arise out of, result from, or are in any way connected with the release or spill of any legally designated hazardous material or waste as a result of the work performed under this Agreement are expressly within the scope of this indemnity, and that the costs, expenses, and legal liability for environmental investigations, monitoring, containment, abatement, removal, repair, cleanup, restoration, remedial work, penalties, and fines arising CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 5 OF 7 from strict liability, or violation of any local, state, or federal law or regulation, attorney's fees, disbursements, and other response costs incurred as a result of such releases or spills are expressly within the scope of this indemnity. 13.3 Applicant shall, on SCE's request, defend any action, claim or suit asserting a claim that may be covered by this indemnity. Applicant shall pay all costs and expenses that may be incurred by SCE in enforcing this indemnity, including reasonable attorney's fees. This indemnity shall survive the termination of this Agreement for any reason. 13.4 If this Agreement is assigned pursuant to Section 10.0, Applicant agrees that this indemnification shall continue to apply to SCE and shall apply to the assignee. 14.0 LIMITATION OF LIABILITY SCE shall not be liable for any special, incidental, indirect, or consequential damages, including without limitation, loss of profits or commitments to subcontractors, and any special, incidental, indirect or consequential damages incurred by Applicant. 15.0 WRITTEN NOTICE 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, email, nationally recognized overnight courier, or first class mail, postage prepaid; to the address specified below, or to another address specified in writing by SCE. SCE SCE Offer Manager: Address: City, State, Zip: Fax #: Email: Phone: James Hodge PO Box 800 Rosemead, CA 91770 626- 302 -6126 James.Hodge @sce.com (626) 302 -0654 APPLICANT (CUSTOMER OR AUTHORIZED REPRESENTATIVE) Name: Company: Address: City, State, Zip: Fax #: Email: Phone: Kurt Wiemann City of Santa Ana 20 Civic Center Plaza M -21 Santa Ana, CA 92702 Kwiemann @sans- ana.org 714- 647 -5639 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 otherwise on the Business Day following personal delivery; (b) if mailed, three Business Days after the date the notice is postmarked; (c) if by facsimile or email, 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. 16.0 CONFLICTS BETWEEN TERMS Should a conflict exist between the main body of this Agreement and the documents incorporated by reference, the main body of this Agreement shall CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 6 OF 7 control. Should a conflict exist In the documents Incorporated by reference, the documents shall control in the following order: 1) SCE acceptance letter(s) and Incentive estimate(s) based on solutions approved in the Application; and (2) the Partnership Agreement applicable to Applicant, and (3) Applicant's approved Application(s). Should a conflict exist between an applicable federal, State, or local law, rule, regulation, order or code and this Agreement, the law, rule, regulation, order or code shall control. Varying degrees of stringency among the main body of this Agreement, the documents incorporated by reference, and laws, rules, regulations, orders, or codes are not deemed conflicts, and the most stringent requirement shall control. Each Party shall notify the other Immediately upon the identification of any conflict or inconsistency concerning this Agreement. 17.0 CANCELLATION OF AGREEMENT: SCE may suspend or terminate the Agreement, with cause, upon written notice to the Applicant identified in Section 15 hereof. SCE may suspend or terminate the Agreement upon written notice to the Applicant if funding for the Program is depleted, or If SCE determines suspension or termination of the Agreement is necessary in order to make changes to the related Program or if SCE is ordered by the CPUC to modify or discontinue a Program and /or any agreements related to a Program. 18,0 MISCELLANEOUS This Agreement shall at all times be subject to such changes or modifications by the CPUC as it may from time to time direct in the exercise of its jurisdiction. This Agreement shall be governed and construed in accordance with the laws of the State of California, without regard to its conflict of laws provisions. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect. This Agreement constitutes the entire agreement and understanding between the Parties as to the subject matter of this Agreement and supersedes all prior agreements, representations, writings and discussions between the Parties, whether oral or written, with respect to the subject matter hereof. No amendment, modification or change to this Agreement shall be binding or effective unless expressly set forth in writing and signed by SCE's representative authorized to execute the Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date set forth below 0 Title: Name Printed: Mark Wallenrod APPLICANT CUSTOMER 14UTHORIZED AGENT) By Title: Interim City Manager Name Kevin O'Rourke Printed: RAfi. 1 'I x1113 ATTE1,Vt w C /2ita,,,,ic �� MARIA D. HUIZAR c CLERK OF THE COUNCIL CUSTOUIZEOSOLUTIONS CONTRACT -LOCAL "VFRPi✓iPF ITACID[PIS"TI'I'UTIOPiAL FART Fr RSHIP 7 OF .J EDISON A. [OWD,Y,MRLRRAf10R4[- �..q.., 2010 — 2012 CUSTOMIZED SOLUTIONS AGREEMENT FOR LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIPS Application Project Name Santa Ana LED Street Lighting 3- 001- 3271 -72 Service Account # UPN 193 -12- 0500251911 Date Received: 7/27/2012 Calculated Approach X SCE Customer information City of Santa Ana COMPANY NAME (Agency /Institution /Local Government) 20 Civic Center Plaza., M -21 Santa Ana, CA 92707 ADDRESS Kurt Weimann CONTACT NAME Projects Manager TITLE CITY /STATE ZIP CODE kweimann @ santa - ana.org EMAIL ADDRESS 714- 647 -5639 TELEPHONE NO. Tax Status: Government Corp. Nan -Corp. Exempt, Reason: 956000785 FAX NO COMPANY /CORP. FEDERAL TAX ID Authorized Agent Information CORPORATE PARENT NAME (if applicable): NAME CITY /STATE ZIP CODE ADDRESS CONTACT NAME EMAIL ADDRESS TELEPHONE NO. FAX NO. TITLE Tax Status: Corp. Non -Corp. _ Exempt, Reason: COMPANY /CORP. FEDERAL TAX ID Site Information LED Street Lighting Retrofit Scope #4 SITE NAME SITE I.D.# (if applicable) Multiple Site Project SITE ADDRESS CITY /STATE ZIP CODE SITE CONTACT NAME CONTACT PHONE # SCE ELECTRIC ACCOUNT(S) # CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 1 OF 7 Final Approved Savings and Incentive Estimate SOLUTIONS DE$CRIPl10N :kWh KW "` $ lrftserlttva AIT1buYtt ' :LL? Exterior LED street lighting LT -48371 86,535.00 0.00 $9,518.85 Total Approved Savings/incentive Estimates 86,535.00 0.00 $9,518.85 Incentive Adjustment due to Project Cost Incentive Adjustment due to Project Site Ca Total Estimated Incentive $9,518.85 2010 — 2012 CUSTOMIZED SOLUTIONS AGREEMENT TERMS AND CONDITIONS FOR LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIPS This Customized Solutions Agreement ( "Agreement ") is entered into by Southern California Edison Company ( "SCE ") and the Customer or the Customer's Authorized Agent, as identified on page 1 above (each deemed an "Applicant" for purposes of this Agreement). Applicant agrees to review these terms and conditions. Any implementation of a project hereunder will be deemed to be acceptance by the Applicant of such terms and conditions, and such terms and conditions shall be binding on the Applicant (both Customer and Authorized Agent, if applicable). If these terms and conditions are not acceptable to Applicant, then Applicant must notify SCE and refrain from any implementation of the project, otherwise will proceed at their own risk. SCE and Applicant may be individually referred to as a "Party" and collectively as the "Parties." 1.0 PROJECT DESCRIPTION This Agreement is limited to those projects and /or solutions described in the applicable 2010 -2012 Energy Management Solutions - Incentive Application for Business Customers (together with all forms attached thereto, and referred to herein as the "Application "). As stated in the Application, SCE shall pay incentives to Applicant, or such other party properly authorized to receive payment, in accordance with the terms and conditions of this Agreement. The Customized Solutions Program ( "Program ") is further described in the 2010 Customized Statewide Procedures Manual for Business ( "Program Manual ") and at www.sce.com /customized solutions. 2.0 DOCUMENTS INCORPORATED BY REFERENCE The following documents are hereby Incorporated by reference and made part of this Agreement: (i) Applicant's completed, signed and submitted Application, (ii) SCE acceptance letter(s) based on the energy saving solutions proposed in the Application, and (iii) the agreement (or memorandum of understanding, as applicable) to jointly deliver the 2010 -12 Energy Efficiency Partnership Program applicable to the Parties (the "Partnership Agreement "). CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 2 OF 7 3.0 ELIGIBILITY Program funding is limited and is available on a first -come, first -served basis. Funds will be reserved only upon both SCE's written approval of the Application and SCE's execution of this Agreement. Projects must meet the following requirements to be eligible for payment of Program incentives ( "Incentive(s) "): (1) Project site must be a nonresidential facility located within SCE's service territory; (2) SCE Customers must pay the Public Goods Charge ( "PGC ") on the SCE electric meter where the energy efficient equipment is installed; (3) Projects will be evaluated using the Calculated Approach and /or the Measured Savings Approach (also known as measurement and verification ( "M&V'); (4) Energy savings and demand reduction resulting from the project must be above and beyond baseline energy performance, which include state - mandated codes, federal- mandated codes, industry- accepted performance standards or other baseline energy performance standards as determined by SCE; (5) Projects must meet all other Program requirements, terms and conditions; (6) Applicant certifies that Applicant will not apply for or receive rebates, incentives, or services covered by this Agreement in an amount greater than the total cost of the project or solution(s) (including labor and materials); and (7) The Applicant certifies that the solutions covered by this Agreement have not and will not receive any funds from any other utility, state or local program funded by the PGC surcharge. 4.0 SUBMITTAL REQUIREMENTS FOR PAYMENT Applicant shall submit to SCE the documents described below prior to being eligible for payment of Incentives. Required documents include, but are not limited to: (1) This Agreement, fully executed and with the attached documents referenced in Item 2.0 above; (2) Complete engineering calculations to demonstrate energy savings and documentation, if applicable (including archival diskette, CD, etc.); (3) Schematic drawings and /or manufacturer specification sheets, if applicable; (4) Invoices and /or documentation to support solution costs, at SCE's request; (5) Project Installation Report; (6) Operating Report, if M&V is required; and (7) Any other documents related to the project, project site, solutions, energy savings or otherwise requested by SCE in its sole discretion, in connection with the Program. 5.0 INSPECTIONS Applicant is solely responsible for ensuring that SCE has reasonable access for all inspections, including but not limited to: (1) Pre - installation equipment inspection to examine the existing /baseline equipment and to check the accuracy of Applicant's equipment survey; (2) Post - installation equipment inspection to check installed equipment and to verify accuracy of Applicant's equipment survey; (3) Post - operation inspection to verify energy savings of the solutions after installed equipment has been operating, if requested by SCE; and (4) Inspection for any other Program - related reason that SCE, in its sole discretion, deems necessary. 6.0 REVIEW AND DISCLAIMER SCE'S AND /OR ITS CONSULTANTS' REVIEW OF THE DESIGN, CONSTRUCTION, OPERATION OR MAINTENANCE OF THE PROJECT OR ENERGY EFFICIENCY SOLUTIONS SHALL NOT CONSTITUTE ANY REPRESENTATION AS TO THE ECONOMIC OR TECHNICAL FEASIBILITY, OPERATIONAL CAPABILITY, OR RELIABILITY OF THE PROJECT OR SOLUTIONS, NOR SHALL THE APPLICANT, IN ANY WAY, MAKE SUCH A REPRESENTATION TO A THIRD PARTY. APPLICANT IS SOLELY RESPONSIBLE FOR THE ECONOMIC AND TECHNICAL FEASIBILITY, CONSTRUCTION, OPERATIONAL CAPABILITY AND RELIABILITY OF APPLICANT'S PROJECT AND SOLUTIONS. SCE MAKES NO WARRANTY, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, USE OR APPLICATION. 7.0 PAYMENTS Payment of Incentives will be made only after all Program requirements are met by Applicant to SCE's sole satisfaction, Payment of Incentives will be made as designated by Customer in Section 8 of the Application. 7.1 SCE retains sole discretion to determine the appropriate baseline values and energy savings calculations used to determine Incentive payments. Incentives shall only be paid on projects that exceed the baseline performance standards applicable when this Agreement is CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 3 OF 7 signed. SCE reserves the right to modify or cancel the Incentive amount if the actual solution installed differs from the installation as set forth in this Agreement. 7.2 The total Incentive payment under the Calculated Savings Approach or Measured Savings Approach shall not exceed the total Incentive in the Final Approved Savings Estimate (as presented on Page 2 of this Agreement). However, projects may (at the discretion of SCE) be eligible for Incentive payments in excess of the Final Approved Savings Estimate if the project results in: (a) increased actual energy savings resulting from the installation of a greater quantity of the approved solutions (as outlined in SCE's acceptance letter); (b) increased actual energy savings resulting from greater efficiencies than estimated (as outlined in the SCE acceptance letter); and /or (c) greater actual project costs than originally estimated. Partnership Incentive levels and Incentive caps shall apply according to the terms of the applicable Partnership Agreement. The total Incentive payment shall not exceed the total project cost as defined in the Program Manual. 7.3 Energy savings for which Incentives are paid cannot exceed the actual electric usage for each SCE Customer service account for which Incentives are being requested. Non -SCE supply, such as cogeneration or deliveries from another commodity supplier, does not qualify as usage from SCE (with the exception of Direct Access customers or customers paying departing load fees for which SCE collects PGC surcharges). 7.4 SCE will make the applicable Incentive payment to the designated payee, in one or more installments, only after all required and /or requested documents have been submitted to, and approved by, SCE, and the appropriate inspection(s) of the project or project site have been completed in accordance with the Program rules set forth in the Program Manual. 7.5 Except as provided below, all projects and /or solutions must be completely installed and fully operational one year from SCE's written project Application approval date to be eligible for Incentive payments. SCE reserves the right to cease making Incentive payment(s), require the return of the total or prorated Incentive payments, and /or terminate this Agreement if the project is not completely installed and fully operational by the applicable date as indicated above, unless an installation extension is granted by SCE. 8.0 PAYMENT DISQUALIFICATION Any Incentives received by Applicant shall be repaid to SCE, in whole or in part, as follows: 8.1 If Customer fails to pay the PGC surcharge throughout the Term of this Agreement. In this event, the total estimated amount of the Incentives shall be prorated and any Incentive payment shall be based on the energy savings that occur during the payment of the PGC surcharge. 8.2 If (1) Customer does not provide SCE with 100% of the related energy benefits specified in this Agreement for the life of the product or for a period of five (5) years from receipt of the Incentive, whichever is less, or (2) the energy benefit to SCE ceases in any way, including but not limited to Customer and /or the project site ceasing to receive electricity from SCE, the solution, equipment and /or project ceasing to function, or Customer ceasing the use of the equipment, solution or project site. Applicant shall refund to SCE a prorated amount of the Incentive dollars based on the actual period of time for which Customer provided the energy benefit as an SCE customer. 8.3 Applicant shall repay any Incentive amounts due to SCE within thirty (30) calendar days of notification by SCE. Repayment is required In accordance with Sections 8.1 and 8.2 above. CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 4 OF 7 SCE shall be entitled to offset against payments owed to Applicant any amount due to SCE that remains unpaid forty (40) calendar days after SCE's written demand for payment. 9.0 TERM AND TERMINATION The term of this Agreement shall commence on the last date that a Party executes this Agreement and shall terminate no later than five (5) years from SCE's written project Installation Report approval date, unless terminated earlier pursuant to this Agreement ( "Term "). 10.0 ASSIGNMENT SCE may assign this Agreement, or its rights and obligations hereunder, directly or indirectly, without prior written consent, provided SCE remains obligated for payments incurred prior to the assignment. Applicant may not assign its rights or delegate its duties without the prior written consent of SCE, which shall not be unreasonably withheld or delayed. If an assignment is requested, Applicant is obligated to provide additional information if requested by SCE. 11.0 PERMITS AND LICENSES Applicant, at its own expense, shall obtain and maintain and cause its contractors and /or subcontractors to obtain and maintain licenses and permits required by federal, state, local, or other relevant governing or regulatory bodies needed to perform its work. Any failure by Applicant or its contractors and /or subcontractors to maintain necessary licenses and permits constitutes a material breach of Applicant's obligations under this Agreement. 12.0 ADVERTISING, MARKETING AND USE OF SCE'S NAME Applicant shall not use SCE's corporate name, trademark, trade name, logo, identity or any affiliation for any reason, including soliciting customers to participate in the project, without SCE's prior written consent. Applicant shall make no representations to its customers on behalf of SCE. 13.0 INDEMNIFICATION To the extent Applicant has (i) executed a Partnership Agreement with SCE and is a direct party thereto, and (ii) such Partnership Agreement contains indemnity provisions covering Applicant's performance under the Program and this Agreement, then such Indemnity provisions shall apply to this Agreement and the remainder of this Section 13 shall have no force and effect. For all other Applicants (including, but not limited to, program participants, contractors, consultants, and others who are not direct parties to a Partnership Agreement with SCE containing such indemnity provisions), the following shall apply: 13.1 Applicant shall indemnify, defend and hold harmless, and release SCE, its affiliates, subsidiaries, parent companies, officers, directors, agents and employees, from and against all claims, demands, losses, damages, costs, expenses, and liability (legal, contractual, or otherwise), which arise from or are in any way connected with any: (i) injury to or death of persons, including but not limited to employees of SCE or Applicant; (ii) injury to property or other interests of SCE, Applicant, or any third party;(iii) violation of local, state, or federal common law, statute, or regulation, including but not limited to environmental laws or regulations; or (iv) strict liability imposed by any law or regulation; so long as such injury, violation, or strict liability (as set forth in (i) - (iv) above) arises from or is in any way connected with Applicant's performance of, or failure to perform, this Agreement, however caused, regardless of any strict liability or negligence of SCE whether active or passive, excepting only such loss, damage, cost, expense, liability, strict liability, or violation of law or regulation that is caused by the sole negligence or willful misconduct of SCE, its officers, managers or employees. 13.2 Applicant acknowledges that any claims, demands, losses, damages, costs, expenses, and legal liability that arise out of, result from, or are in any way connected with the release or spill of any legally designated hazardous material or waste as a result of the work performed under this Agreement are expressly within the scope of this indemnity, and that the costs, expenses, and legal liability for environmental investigations, monitoring, containment, abatement, removal, repair, cleanup, restoration, remedial work, penalties, and fines arising CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 5 OF 7 from strict liability, or violation of any local, state, or federal law or regulation, attorney's fees, disbursements, and other response costs incurred as a result of such releases or spills are expressly within the scope of this indemnity. 13.3 Applicant shall, on SCE's request, defend any action, claim or suit asserting a claim that may be covered by this indemnity. Applicant shall pay all costs and expenses that may be incurred by SCE in enforcing this indemnity, including reasonable attorney's fees. This indemnity shall survive the termination of this Agreement for any reason. 13.4 If this Agreement is assigned pursuant to Section 10.0, Applicant agrees that this indemnification shall continue to apply to SCE and shall apply to the assignee. 14.0 LIMITATION OF LIABILITY SCE shall not be liable for any special, incidental, indirect, or consequential damages, including without limitation, loss of profits or commitments to subcontractors, and any special, incidental, indirect or consequential damages incurred by Applicant. 15.0 WRITTEN NOTICE 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, email, nationally recognized overnight courier, or first class mail, postage prepaid; to the address specified below, or to another address specified in writing by SCE. SCE SCE Offer Manager: Address: City, State, Zip: Fax #: Email: Phone: James Hodge PO Box 800 Rosemead, CA 91770 JAMES.HODGE @SCE.COM (626) 302 -0654 APPLICANT (CUSTOMER OR AUTHORIZED REPRESENTATIVE) Name: Company: Address: City, State, Zip: Fax #: Email: Phone: Kurt Weimann City of Santa Ana 20 Civic Center Plaza., M -21 Santa Ana, CA 92707 kweiman @santa - ana.org (714) 647 -5639 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 otherwise on the Business Day following personal delivery; (b) if mailed, three Business Days after the date the notice is postmarked; (c) if by facsimile or email, 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. 16.0 CONFLICTS BETWEEN TERMS Should a conflict exist between the main body of this Agreement and the documents incorporated by reference, the main body of this Agreement shall CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 6 OF 7 control. Should a conflict exist In the documents Incorporated by reference, the documents shall control in the following order: 1) SCE acceptance letter(s) and Incentive estimate(s) based on solutions approved in the Application; and (2) the Partnership Agreement applicable to Applicant, and (3) Applicant's approved Application(s). Should a conflict exist between an applicable federal, State, or local law, rule, regulation, order or code and this Agreement, the law, rule, regulation, order or code shall control. Varying degrees of stringency among the main body of this Agreement, the documents incorporated by reference, and laws, rules, regulations, orders, or codes are not deemed conflicts, and the most stringent requirement shall control. Each Party shall notify the other Immediately upon the identification of any conflict or inconsistency concerning this Agreement. 17.0 CANCELLATION OF AGREEMENT: SCE may suspend or terminate the Agreement, with cause, upon written notice to the Applicant identified in Section 15 hereof. SCE may suspend or terminate the Agreement upon written notice to the Applicant if funding for the Program is depleted, or If SCE determines suspension or termination of the Agreement is necessary in order to make changes to the related Program or if SCE is ordered by the CPUC to modify or discontinue a Program and /or any agreements related to a Program. 18,0 MISCELLANEOUS This Agreement shall at all times be subject to such changes or modifications by the CPUC as it may from time to time direct in the exercise of its jurisdiction. This Agreement shall be governed and construed in accordance with the laws of the State of California, without regard to its conflict of laws provisions. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect. This Agreement constitutes the entire agreement and understanding between the Parties as to the subject matter of this Agreement and supersedes all prior agreements, representations, writings and discussions between the Parties, whether oral or written, with respect to the subject matter hereof. No amendment, modification or change to this Agreement shall be binding or effective unless expressly set forth in writing and signed by SCE's representative authorized to execute the Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date set forth below 0 Title: Name Printed: Mark Wallenrod APPLICANT CUSTOMER 14UTHORIZED AGENT) By Title: Interim City Manager Name Kevin O'Rourke Printed: RAfi. 1 'I x1113 ATTE1,Vt w C /2ita,,,,ic �� MARIA D. HUIZAR c CLERK OF THE COUNCIL CUSTOUIZEOSOLUTIONS CONTRACT -LOCAL "VFRPi✓iPF ITACID[PIS"TI'I'UTIOPiAL FART Fr RSHIP 7 OF saontrM CALSO& t,. EDISON 2010 — 2012 CUSTOMIZED SOLUTIONS AGREEMENT FOR LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIPS Application Project Name Santa Ana LED Street Lighting 3 -001- 3271 -72 Service Account # 193 -12- 0500251911 UPN 7/27/2012 Date Received: Calculated Approach X information SCE Customer City of Santa Ana COMPANY NAME (Agency /Institution /Local Government) 20 Civic Center Plaza., M -21 Santa Ana, CA 92707 ADDRESS CITY /STATE ZIP CODE Kurt Weimann kweimann @santa- ana.org CONTACT NAME EMAIL ADDRESS Projects Manager 714 - 647 -5639 TITLE TELEPHONE NO, FAX NO Tax Status: Corp. _ Non -Corp. - ' Exempt, Reason: Government 956000785 COMPANY /CORP. FEDERAL TAX ID Authorized ••- COMPANY NAME CORPORATE PARENT NAME (if applicable): ADDRESS CITY /STATE ZIP CODE CONTACT NAME EMAIL ADDRESS TITLE TELEPHONE NO. FAX NO. Tax Status: Corp. Non -Corp. _ Exempt, Reason: Information Site COMPANY /CORP. FEDERAL TAX ID LED Street Lighting Retrofit Scope #4 SITE NAME SITE I.D.# (if applicable) Multiple Site Project SITE ADDRESS CITY /STATE ZIP CODE SITE CONTACT NAME CONTACT PHONE # SCE ELECTRIC ACCOUNT(S) # CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 1 OF 7 Final Approved Savings and Incentive Estimate SOLUTIONS DESCRIPTION code Mh KIII/ $ Incerrtive'Amount Exterior LED street lighting LT -48371 86,535.00 0.00 $9,518.85 Total Approved Savings/incentive Estimates 1 86,535.00 0.00 $9,518.85 Incentive Adjustment due to Project Cost Incentive Adjustment due to Project Site Ca Total Estimated Incentive $9,518.85 2010 — 2012 CUSTOMIZED SOLUTIONS AGREEMENT TERMS AND CONDITIONS FOR LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIPS This Customized Solutions Agreement ( "Agreement ") is entered into by Southern California Edison Company ( "SCE ") and the Customer or the Customer's Authorized Agent, as identified on page 1 above (each deemed an "Applicant" for purposes of this Agreement). Applicant agrees to review these terms and conditions. Any implementation of a project hereunder will be deemed to be acceptance by the Applicant of such terms and conditions, and such terms and conditions shall be binding on the Applicant (both Customer and Authorized Agent, if applicable). If these terms and conditions are not acceptable to Applicant, then Applicant must notify SCE and refrain from any implementation of the project, otherwise will proceed at their own risk. SCE and Applicant may be individually referred to as a "Party" and collectively as the "Parties." 1.0 PROJECT DESCRIPTION This Agreement is limited to those projects and /or solutions described in the applicable 2010 -2012 Energy Management Solutions - Incentive Application for Business Customers (together with all forms attached thereto, and referred to herein as the "Application "). As stated in the Application, SCE shall pay incentives to Applicant, or such other party properly authorized to receive payment, in accordance with the terms and conditions of this Agreement. The Customized Solutions Program ( "Program ") is further described in the 2010 Customized Statewide Procedures Manual for Business ( "Program Manual ") and at www.sce.com /customized solutions. 2.0 DOCUMENTS INCORPORATED BY REFERENCE The following documents are hereby Incorporated by reference and made part of this Agreement: (i) Applicant's completed, signed and submitted Application, (ii) SCE acceptance letter(s) based on the energy saving solutions proposed in the Application, and (iii) the agreement (or memorandum of understanding, as applicable) to jointly deliver the 2010 -12 Energy Efficiency Partnership Program applicable to the Parties (the "Partnership Agreement "). CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 2 OF 7 3.0 ELIGIBILITY Program funding is limited and is available on a first -come, first -served basis. Funds will be reserved only upon both SCE's written approval of the Application and SCE's execution of this Agreement. Projects must meet the following requirements to be eligible for payment of Program incentives ("Incentive(s)"): (1) Project site must be a nonresidential facility located within SCE's service territory; (2) SCE Customers must pay the Public Goods Charge ( "PGC ") on the SCE electric meter where the energy efficient equipment is installed; (3) Projects will be evaluated using the Calculated Approach and /or the Measured Savings Approach (also known as measurement and verification ( "M &V"); (4) Energy savings and demand reduction resulting from the project must be above and beyond baseline energy performance, which include state - mandated codes, federal- mandated codes, industry- accepted performance standards or other baseline energy performance standards as determined by SCE; (5) Projects must meet all other Program requirements, terms and conditions; (6) Applicant certifies that Applicant will not apply for or receive rebates, incentives, or services covered by this Agreement in an amount greater than the total cost of the project or solution(s) (including labor and materials); and (7) The Applicant certifies that the solutions covered by this Agreement have not and will not receive any funds from any other utility, state or local program funded by the PGC surcharge. 4.0 SUBMITTAL REQUIREMENTS FOR PAYMENT Applicant shall submit to SCE the documents described below prior to being eligible for payment of incentives. Required documents include, but are not limited to: (1) This Agreement, fully executed and with the attached documents referenced in Item 2.0 above; (2) Complete engineering calculations to demonstrate energy savings and documentation, if applicable (including archival diskette, CD, etc.); (3) Schematic drawings and /or manufacturer specification sheets, if applicable; (4) Invoices and /or documentation to support solution costs, at SCE's request; (5) Project Installation Report; (6) Operating Report, if M &V is required; and (7) Any other documents related to the project, project site, solutions, energy savings or otherwise requested by SCE in its sole discretion, in connection with the Program. 5.0 INSPECTIONS Applicant is solely responsible for ensuring that SCE has reasonable access for all inspections, including but not limited to: (1) Pre - installation equipment inspection to examine the existing /baseline equipment and to check the accuracy of Applicant's equipment survey; (2) Post - installation equipment inspection to check installed equipment and to verify accuracy of Applicant's equipment survey; (3) Post - operation inspection to verify energy savings of the solutions after installed equipment has been operating, if requested by SCE; and (4) Inspection for any other Program - related reason that SCE, in its sole discretion, deems necessary. 6.0 REVIEW AND DISCLAIMER SCE'S AND /OR ITS CONSULTANTS' REVIEW OF THE DESIGN, CONSTRUCTION, OPERATION OR MAINTENANCE OF THE PROJECT OR ENERGY EFFICIENCY SOLUTIONS SHALL NOT CONSTITUTE ANY REPRESENTATION AS TO THE ECONOMIC OR TECHNICAL FEASIBILITY, OPERATIONAL CAPABILITY, OR RELIABILITY OF THE PROJECT OR SOLUTIONS, NOR SHALL THE APPLICANT, IN ANY WAY, MAKE SUCH A REPRESENTATION TO A THIRD PARTY. APPLICANT IS SOLELY RESPONSIBLE FOR THE ECONOMIC AND TECHNICAL FEASIBILITY, CONSTRUCTION, OPERATIONAL CAPABILITY AND RELIABILITY OF APPLICANT'S PROJECT AND SOLUTIONS. SCE MAKES NO WARRANTY, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, USE OR APPLICATION. 7.0 PAYMENTS Payment of Incentives will be made only after all Program requirements are met by Applicant to SCE's sole satisfaction. Payment of Incentives will be made as designated by Customer in Section 8 of the Application. 7.1 SCE retains sole discretion to determine the appropriate baseline values and energy savings calculations used to determine Incentive payments. Incentives shall only be paid on projects that exceed the baseline performance standards applicable when this Agreement is CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 3 OF 7 signed. SCE reserves the right to modify or cancel the Incentive amount if the actual solution installed differs from the installation as set forth in this Agreement. 7.2 The total Incentive payment under the Calculated Savings Approach or Measured Savings Approach shall not exceed the total Incentive in the Final Approved Savings Estimate (as presented on Page 2 of this Agreement). However, projects may (at the discretion of SCE) be eligible for Incentive payments in excess of the Final Approved Savings Estimate if the project results in: (a) increased actual energy savings resulting from the installation of a greater quantity of the approved solutions (as outlined in SCE's acceptance letter); (b) increased actual energy savings resulting from greater efficiencies than estimated (as outlined in the SCE acceptance letter); and /or (c) greater actual project costs than originally estimated. Partnership Incentive levels and Incentive caps shall apply according to the terms of the applicable Partnership Agreement. The total Incentive payment shall not exceed the total project cost as defined in the Program Manual. 7.3 Energy savings for which Incentives are paid cannot exceed the actual electric usage for each SCE Customer service account for which Incentives are being requested. Non -SCE supply, such as cogeneration or deliveries from another commodity supplier, does not qualify as usage from SCE (with the exception of Direct Access customers or customers paying departing load fees for which SCE collects PGC surcharges). 7.4 SCE will make the applicable Incentive payment to the designated payee, in one or more installments, only after all required and /or requested documents have been submitted to, and approved by, SCE, and the appropriate inspection(s) of the project or project site have been completed in accordance with the Program rules set forth in the Program Manual. 7.5 Except as provided below, all projects and /or solutions must be completely installed and fully operational one year from SCE's written project Application approval date to be eligible for Incentive payments. SCE reserves the right to cease making Incentive payment(s), require the return of the total or prorated Incentive payments, and /or terminate this Agreement if the project is not completely installed and fully operational by the applicable date as indicated above, unless an installation extension is granted by SCE. 8.0 PAYMENT DISQUALIFICATION Any Incentives received by Applicant shall be repaid to SCE, in whole or in part, as follows: 8.1 If Customer fails to pay the PGC surcharge throughout the Term of this Agreement. In this event, the total estimated amount of the Incentives shall be prorated and any Incentive payment shall be based on the energy savings that occur during the payment of the PGC surcharge. 8.2 If (1) Customer does not provide SCE with 100% of the related energy benefits specified in this Agreement for the life of the product or for a period of five (5) years from receipt of the Incentive, whichever is less, or (2) the energy benefit to SCE ceases in any way, including but not limited to Customer and /or the project site ceasing to receive electricity from SCE, the solution, equipment and /or project ceasing to function, or Customer ceasing the use of the equipment, solution or project site. Applicant shall refund to SCE a prorated amount of the Incentive dollars based on the actual period of time for which Customer provided the energy benefit as an SCE customer. 8.3 Applicant shall repay any Incentive amounts due to SCE within thirty (30) calendar days of notification by SCE. Repayment is required In accordance with Sections 8.1 and 8.2 above. CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 4 OF 7 SCE shall be entitled to offset against payments owed to Applicant any amount due to SCE that remains unpaid forty (40) calendar days after SCE's written demand for payment. 9.0 TERM AND TERMINATION The term of this Agreement shall commence on the last date that a Party executes this Agreement and shall terminate no later than five (5) years from SCE's written project Installation Report approval date, unless terminated earlier pursuant to this Agreement ( "Term ") 10.0 ASSIGNMENT SCE may assign this Agreement, or its rights and obligations hereunder, directly or indirectly, without prior written consent, provided SCE remains obligated for payments incurred prior to the assignment. Applicant may not assign its rights or delegate its duties without the prior written consent of SCE, which shall not be unreasonably withheld or delayed. If an assignment is requested, Applicant is obligated to provide additional information if requested by SCE. 11.0 PERMITS AND LICENSES Applicant, at its own expense, shall obtain and maintain and cause its contractors and /or subcontractors to obtain and maintain licenses and permits required by federal, state, local, or other relevant governing or regulatory bodies needed to perform its work. Any failure by Applicant or its contractors and /or subcontractors to maintain necessary licenses and permits constitutes a material breach of Applicant's obligations under this Agreement. 12.0 ADVERTISING, MARKETING AND USE OF SCE'S NAME Applicant shall not use SCE's corporate name, trademark, trade name, logo, identity or any affiliation for any reason, including soliciting customers to participate in the project, without SCE's prior written consent. Applicant shall make no representations to its customers on behalf of SCE. 13.0 INDEMNIFICATION To the extent Applicant has (i) executed a Partnership Agreement with SCE and is a direct party thereto, and (ii) such Partnership Agreement contains indemnity provisions covering Applicant's performance under the Program and this Agreement, then such Indemnity provisions shall apply to this Agreement and the remainder of this Section 13 shall have no force and effect. For all other Applicants (including, but not limited to, program participants, contractors, consultants, and others who are not direct parties to a Partnership Agreement with SCE containing such indemnity provisions), the following shall apply: 13.1 Applicant shall indemnify, defend and hold harmless, and release SCE, its affiliates, subsidiaries, parent companies, officers, directors, agents and employees, from and against all claims, demands, losses, damages, costs, expenses, and liability (legal, contractual, or otherwise), which arise from or are in any way connected with any: (i) injury to or death of persons, including but not limited to employees of SCE or Applicant; (ii) injury to property or other interests of SCE, Applicant, or any third party;(iii) violation of local, state, or federal common law, statute, or regulation, including but not limited to environmental laws or regulations; or (iv) strict liability imposed by any law or regulation; so long as such injury, violation, or strict liability (as set forth in (i) - (iv) above) arises from or is in any way connected with Applicant's performance of, or failure to perform, this Agreement, however caused, regardless of any strict liability or negligence of SCE whether active or passive, excepting only such loss, damage, cost, expense, liability, strict liability, or violation of law or regulation that is caused by the sole negligence or willful misconduct of SCE, its officers, managers or employees. 13.2 Applicant acknowledges that any claims, demands, losses, damages, costs, expenses, and legal liability that arise out of, result from, or are in any way connected with the release or spill of any legally designated hazardous material or waste as a result of the work performed under this Agreement are expressly within the scope of this indemnity, and that the costs, expenses, and legal liability for environmental investigations, monitoring, containment, abatement, removal, repair, cleanup, restoration, remedial work, penalties, and fines arising CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 5 OF 7 from strict liability, or violation of any local, state, or federal law or regulation, attorney's fees, disbursements, and other response costs incurred as a result of such releases or spills are expressly within the scope of this indemnity. 13.3 Applicant shall, on SCE's request, defend any action, claim or suit asserting a claim that may be covered by this indemnity. Applicant shall pay all costs and expenses that may be incurred by SCE in enforcing this indemnity, including reasonable attorney's fees. This indemnity shall survive the termination of this Agreement for any reason. 13.4 If this Agreement is assigned pursuant to Section 10.0, Applicant agrees that this indemnification shall continue to apply to SCE and shall apply to the assignee. 14.0 LIMITATION OF LIABILITY SCE shall not be liable for any special, incidental, indirect, or consequential damages, including without limitation, loss of profits or commitments to subcontractors, and any special, incidental, indirect or consequential damages incurred by Applicant. 15.0 WRITTEN NOTICE 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, email, nationally recognized overnight courier, or first class mail, postage prepaid; to the address specified below, or to another address specified in writing by SCE. SCE SCE Offer Manager: Address: City, State, Zip: Fax #: Email: Phone: James Hodge PO Box 800 Rosemead, CA 91770 JAMES.HODGE @SCE.COM (626) 302 -0654 APPLICANT (CUSTOMER OR AUTHORIZED REPRESENTATIVE) Name: Company: Address: City, State, Zip: Fax #: Email: Phone: Kurt Weimann City of Santa Ana 20 Civic Center Plaza., M -21 Santa Ana, CA 92707 kweiman @santa - ana.org (714) 647 -5639 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 otherwise on the Business Day following personal delivery; (b) if mailed, three Business Days after the date the notice is postmarked; (c) if by facsimile or email, 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. 16.0 CONFLICTS BETWEEN TERMS Should a conflict exist between the main body of this Agreement and the documents incorporated by reference, the main body of this Agreement shall CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 6 OF 7 control. Should a conflict exist In the documents Incorporated by reference, the documents shall control in the following order: 1) SCE acceptance letter(s) and Incentive estimate(s) based on solutions approved in the Application; and (2) the Partnership Agreement applicable to Applicant, and (3) Applicant's approved Application(s). Should a conflict exist between an applicable federal, State, or local law, rule, regulation, order or code and this Agreement, the law, rule, regulation, order or code shall control. Varying degrees of stringency among the main body of this Agreement, the documents incorporated by reference, and laws, rules, regulations, orders, or codes are not deemed conflicts, and the most stringent requirement shall control. Each Party shall notify the other Immediately upon the identification of any conflict or inconsistency concerning this Agreement. 17.0 CANCELLATION OF AGREEMENT: SCE may suspend or terminate the Agreement, with cause, upon written notice to the Applicant identified in Section 15 hereof. SCE may suspend or terminate the Agreement upon written notice to the Applicant if funding for the Program is depleted, or If SCE determines suspension or termination of the Agreement is necessary in order to make changes to the related Program or if SCE is ordered by the CPUC to modify or discontinue a Program and /or any agreements related to a Program. 18,0 MISCELLANEOUS This Agreement shall at all times be subject to such changes or modifications by the CPUC as it may from time to time direct in the exercise of its jurisdiction. This Agreement shall be governed and construed in accordance with the laws of the State of California, without regard to its conflict of laws provisions. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect. This Agreement constitutes the entire agreement and understanding between the Parties as to the subject matter of this Agreement and supersedes all prior agreements, representations, writings and discussions between the Parties, whether oral or written, with respect to the subject matter hereof. No amendment, modification or change to this Agreement shall be binding or effective unless expressly set forth in writing and signed by SCE's representative authorized to execute the Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date set forth below 0 Title: Name Printed: Mark Wallenrod APPLICANT CUSTOMER 14UTHORIZED AGENT) By Title: Interim City Manager Name Kevin O'Rourke Printed: RAfi. 1 'I x1113 ATTE1,Vt w C /2ita,,,,ic �� MARIA D. HUIZAR c CLERK OF THE COUNCIL CUSTOUIZEOSOLUTIONS CONTRACT -LOCAL "VFRPi✓iPF ITACID[PIS"TI'I'UTIOPiAL FART Fr RSHIP 7 OF Sca"Em CAL9MMu EDISON Aa C!1[AY NTFII.K4T1Q14LL- [epjn� 2010 - 2012 CUSTOMIZED SOLUTIONS AGREEMENT FOR LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIPS Application Service Account # Project Name Santa Ana LED Street Lighting 3-001- 3271-97,MWH -5,. 193 -12- 0500255099 UPN 7/27/12 Date Received: SCE Customer Information Calculated Approach X City of Santa Ana COMPANY NAME (Agency /Institution /Local Government) 20 Civic Center Plaza M -21 Santa Ana /CA 92707 ADDRESS CITY /STATE ZIP CODE Kurt Wiemann Kwiemann @santa- ana.org CONTACT NAME EMAIL ADDRESS Projects Manager 714 - 647 -5639 TITLE TELEPHONE NO. FAX NO Tax Status: Corp. Non -Corp. X Exempt, Reason: Government 95- 6000785 COMPANY /CORP. FEDERAL TAX ID Authorized Agent COMPANY NAME CORPORATE PARENT NAME (if applicable): ADDRESS CITY /STATE ZIP CODE CONTACT NAME EMAIL ADDRESS TITLE TELEPHONE NO. FAX NO. Tax Status: Corp. _ Non -Corp. _ Exempt, Reason: COMPANY /CORP. FEDERAL TAX ID Site Inforrraition LED Street Lighting Retrofit - Scope #4 S T E_ PIA. ?,1E SITE E I.C.. = (If a.-pjica' -Iei Greenville /Sgerstr, Niulti -Site Santa Ana /CA 92701 -E ^DC.._3j Ct -' T _ _ Kurt Wemann 714 - 647 -5639 3 -C,1 -3 2 ;. c-7.,,,,.I - SITE CO`JTACT `iA ,lE COi iTACT PHONE = S• =- - -= 77R'C ., .,OU\�7; Final Approved Savings and Incentive Estimate r. SOt [}itQNS QESCk21PiE3N s?<` µ, .� _ , -' Code . _ ,,�;RwEk , ._ , ` iCVV f ,.. = ^$ trtcerrivftauntr Exterior LED Street Lighting LT -48371 83,997.00 0.00 $9,239.67 Total Approved Savin slincentive Estimates f 83,997.00 0.00 $9,239.67 Incentive Adjustment due to Project Cost Incentive Adjustment due to Project Site Cap Total Estimated Incentive $9,239.67 2010 — 2012 CUSTOMIZED SOLUTIONS AGREEMENT TERMS AND CONDITIONS FOR LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIPS This Customized Solutions Agreement ( "Agreement ") is entered into by Southern California Edison Company ( "SCE ") and the Customer or the Customer's Authorized Agent, as identified on page 1 above (each deemed an "Applicant" for purposes of this Agreement). Applicant agrees to review these terms and conditions. Any implementation of a project hereunder will be deemed to be acceptance by the Applicant of such terms and conditions, and such terms and conditions shall be binding on the Applicant (both Customer and Authorized Agent, if applicable). If these terms and conditions are not acceptable to Applicant, then Applicant must notify SCE and refrain from any implementation of the project, otherwise will proceed at their own risk. SCE and Applicant may be individually referred to as a "Party" and collectively as the "Parties." 1.0 PROJECT DESCRIPTION This Agreement is limited to those projects and /or solutions described in the applicable 2010 -2012 Energy Management Solutions - Incentive Application for Business Customers (together with all forms attached thereto, and referred to herein as the "Application "). As stated in the Application, SCE shall pay incentives to Applicant, or such other party properly authorized to receive payment, in accordance with the terms and conditions of this Agreement. The Customized Solutions Program ( "Program ") is further described in the 2010 Customized Statewide Procedures Manual for Business ( "Program Manual ") and at www.sce.com /customized solutions. 2.0 DOCUMENTS INCORPORATED BY REFERENCE The following documents are hereby Incorporated by reference and made part of this Agreement: (i) Applicant's completed, signed and _",' r'!o (l') SCE: acce, t i Ce I twr(S) based on tr'P energ, sa'/ ,'✓ sol`;`IOnS proposed in the A,DOcatlon, and (iii) the agreement (or memorandum of understanding, as applicable) to jointly delive t e 2010 -12 E::n Ef iC,ency Panne, ,yip Pro-r =m arNlica le t "v Parties ( ±' ^,e Partnership Agreement"). 3.0 ELIGIBILITY Program funding is limited and is available on a first -come, first - served basis. Funds will be reserved only upon both SCE's written approval of the Application and SCE's execution of this Agreement. Projects must meet the following requirements to be eligible for payment of Program incentives ( "Incentive(s) "): (1) Project site must be a nonresidential facility located within SCE's service territory; (2) SCE Customers must pay the Public Goods Charge ( "PGC ") on the SCE electric meter where the energy efficient equipment is installed; (3) Projects will be evaluated using the Calculated Approach and /or the Measured Savings Approach (also known as measurement and verification ( "M &V"); (4) Energy savings and demand reduction resulting from the project must be above and beyond baseline energy performance, which include state - mandated codes, federal- mandated codes, industry- accepted performance standards or other baseline energy performance standards as determined by SCE; (5) Projects must meet all other Program requirements, terms and conditions; (6) Applicant certifies that Applicant will not apply for or receive rebates, incentives, or services covered by this Agreement in an amount greater than the total cost of the project or solution(s) (including labor and materials); and (7) The Applicant certifies that the solutions covered by this Agreement have not and will not receive any funds from any other utility, state or local program funded by the PGC surcharge. 4.0 SUBMITTAL REQUIREMENTS FOR PAYMENT Applicant shall submit to SCE the documents described below prior to being eligible for payment of Incentives. Required documents include, but are not limited to: (1) This Agreement, fully executed and with the attached documents referenced in Item 2.0 above; (2) Complete engineering calculations to demonstrate energy savings and documentation, if applicable (including archival diskette, CD, etc.); (3) Schematic drawings and /or manufacturer specification sheets, if applicable; (4) Invoices and /or documentation to support solution costs, at SCE's request; (5) Project Installation Report; (6) Operating Report, if M &V is required; and (7) Any other documents related to the project, project site, solutions, energy savings or otherwise requested by SCE in its sole discretion, in connection with the Program. 5.0 INSPECTIONS Applicant is solely responsible for ensuring that SCE has reasonable access for all inspections, including but not limited to: (1) Pre - installation equipment inspection to examine the existing /baseline equipment and to check the accuracy of Applicant's equipment survey; (2) Post - installation equipment inspection to check installed equipment and to verify accuracy of Applicant's equipment survey; (3) Post - operation inspection to verify energy savings of the solutions after installed equipment has been operating, if requested by SCE; and (4) Inspection for any other Program - related reason that SCE, in its sole discretion, deems necessary. 6.0 REVIEW AND DISCLAIMER SCE'S AND /OR ITS CONSULTANTS' REVIEW OF THE DESIGN, CONSTRUCTION, OPERATION OR MAINTENANCE OF THE PROJECT OR ENERGY EFFICIENCY SOLUTIONS SHALL NOT CONSTITUTE ANY REPRESENTATION AS TO THE ECONOMIC OR TECHNICAL FEASIBILITY, OPERATIONAL CAPABILITY, OR RELIABILITY OF THE PROJECT OR SOLUTIONS, NOR SHALL THE APPLICANT, IN ANY WAY, MAKE SUCH A REPRESENTATION TO A THIRD PARTY. APPLICANT IS SOLELY RESPONSIBLE FOR THE ECONOMIC AND TECHNICAL FEASIBILITY, CONSTRUCTION, OPERATIONAL CAPABILITY AND RELIABILITY OF APPLICANT'S PROJECT AND SOLUTIONS. SCE MAKES NO WARRANTY, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, USE OR APPLICATION. 7.0 PAYMENTS Payment of Incentives will be made only after all Program requirements are met by Applicant to SCE's sole satisfaction. Payment of Incentives will be made as designated by Customer in Section 8 of the Application. 7.1 SCE retains sole discretion to determine the appropriate baseline values and energy sa ii7-, -J calcuialions us e'dl to deierl"°','!nel I; iceii r/_= pajm -.�ls. Iinc iitiwi:s Shall only be p_a;i'd on ^r0;e t� that exceed 'tn° ba3 1ne performance st5zndards applicable L.v ien this Aci-e lent is signed. SCE reserves the right to modify or cancel the Incentive amount if the actual solution installed differs from the installation as set forth in this Agreement. 7.2 The total Incentive payment under the Calculated Savings Approach or Measured Savings Approach shall not exceed the total Incentive in the Final Approved Savings Estimate (as presented on Page 2 of this Agreement). However, projects may (at the discretion of SCE) be eligible for Incentive payments in excess of the Final Approved Savings Estimate if the project results in: (a) increased actual energy savings resulting from the installation of a greater quantity of the approved solutions (as outlined in SCE's acceptance letter); (b) increased actual energy savings resulting from greater efficiencies than estimated (as outlined in the SCE acceptance letter); and /or (c) greater actual project costs than originally estimated. Partnership Incentive levels and Incentive caps shall apply according to the terms of the applicable Partnership Agreement. The total Incentive payment shall not exceed the total project cost as defined in the Program Manual. 7.3 Energy savings for which Incentives are paid cannot exceed the actual electric usage for each SCE Customer service account for which Incentives are being requested. Non -SCE supply, such as cogeneration or deliveries from another commodity supplier, does not qualify as usage from SCE (with the exception of Direct Access customers or customers paying departing load fees for which SCE collects PGC surcharges). 7.4 SCE will make the applicable Incentive payment to the designated payee, in one or more installments, only after all required and /or requested documents have been submitted to, and approved by, SCE, and the appropriate inspection(s) of the project or project site have been completed in accordance with the Program rules set forth in the Program Manual. 7.5 Except as provided below, all projects and /or solutions must be completely installed and fully operational one year from SCE's written project Application approval date to be eligible for Incentive payments. SCE reserves the right to cease making Incentive payment(s), require the return of the total or prorated Incentive payments, and /or terminate this Agreement if the project is not completely installed and fully operational by the applicable date as indicated above, unless an installation extension is granted by SCE. 8.0 PAYMENT DISQUALIFICATION Any Incentives received by Applicant shall be repaid to SCE, in whole or in part, as follows: 8.1 If Customer fails to pay the PGC surcharge throughout the Term of this Agreement. In this event, the total estimated amount of the Incentives shall be prorated and any Incentive payment shall be based on the energy savings that occur during the payment of the PGC surcharge. 8.2 If (1) Customer does not provide SCE with 100% of the related energy benefits specified in this Agreement for the life of the product or for a period of five (5) years from receipt of the Incentive, whichever is less, or (2) the energy benefit to SCE ceases in any way, including but not limited to Customer and /or the project site ceasing to receive electricity from SCE, the solution, equipment and /or project ceasing to function, or Customer ceasing the use of the equioment, solution or project site. Applicant sha!I refund to SCE a prorated amount of the ce. /L doi'ars h? S c ?'I,.. a C t a! p e ric- d of iiile f0,- li ii Customer p'oii c i u e'er �J, benefit as an SCE customer. 8.3 Applicant she.. re,-)a,/ 'any Incentive amounts due to SCE ;ithin thi Ly (30) calendar days of notification by SCE. Repayment is required In accordance with Sections 8.1 and 8.2 above. SCE shall be entitled to offset against payments owed to Applicant any amount due to SCE that remains unpaid forty (40) calendar days after SCE's written demand for payment. 9.0 TERM AND TERMINATION The term of this Agreement shall commence on the last date that a Party executes this Agreement and shall terminate no later than five (5) years from SCE's written project Installation Report approval date, unless terminated earlier pursuant to this Agreement ( "Term "). 10.0 ASSIGNMENT SCE may assign this Agreement, or its rights and obligations hereunder, directly or indirectly, without prior written consent, provided SCE remains obligated for payments incurred prior to the assignment. Applicant may not assign its rights or delegate its duties without the prior written consent of SCE, which shall not be unreasonably withheld or delayed. If an assignment is requested, Applicant is obligated to provide additional information if requested by SCE. 11.0 PERMITS AND LICENSES Applicant, at its own expense, shall obtain and maintain and cause its contractors and /or subcontractors to obtain and maintain licenses and permits required by federal, state, local, or other relevant governing or regulatory bodies needed to perform its work. Any failure by Applicant or its contractors and /or subcontractors to maintain necessary licenses and permits constitutes a material breach of Applicant's obligations under this Agreement. 12.0 ADVERTISING, MARKETING AND USE OF SCE'S NAME Applicant shall not use SCE's corporate name, trademark, trade name, logo, identity or any affiliation for any reason, including soliciting customers to participate in the project, without SCE's prior written consent. Applicant shall make no representations to its customers on behalf of SCE. 13.0 INDEMNIFICATION To the extent Applicant has (i) executed a Partnership Agreement with SCE and is a direct party thereto, and (ii) such Partnership Agreement contains indemnity provisions covering Applicant's performance under the Program and this Agreement, then such Indemnity provisions shall apply to this Agreement and the remainder of this Section 13 shall have no force and effect. For all other Applicants (including, but not limited to, program participants, contractors, consultants, and others who are not direct parties to a Partnership Agreement with SCE containing such indemnity provisions), the following shall apply: 13.1 Applicant shall indemnify, defend and hold harmless, and release SCE, its affiliates, subsidiaries, parent companies, officers, directors, agents and employees, from and against all claims, demands, losses, damages, costs, expenses, and liability (legal, contractual, or otherwise), which arise from or are in any way connected with any: (i) injury to or death of persons, including but not limited to employees of SCE or Applicant; (ii) injury to property or other interests of SCE, Applicant, or any third party;(iii) violation of local, state, or federal common law, statute, or regulation, including but not limited to environmental laws or regulations; or (iv) strict liability imposed by any law or regulation; so long as such injury, violation, or strict liability (as set forth in (i) - (iv) above) arises from or is in any way connected with Applicant's performance of, or failure to perform, this Agreement, however caused, regardless of any strict liability or negligence of SCE whether active or passive, excepting only such loss, damage, cost, expense, liability, strict liability, or violation of law or regulation that is caused by the sole negligence or willful misconduct of SCE, its officers, managers or employees. 13.2 Applicant ac<no,,,'edges that any claims, demands, losses, damages, costs, expenses, le,-al ��a J�� t a —. ,,.. a— V'..it J , resin, try yr are !n a� i�J �`i ��,� �. C111n"�t °-..l i,.�t.' t('° C! ^�J- yr spit! ofVanv legaily des!gnated ' hazardous material or waste as a resiult of the bvork performed u er t :s A,greeme ^var,e e;<pressIy ,vith'n t; e- score of this i ide;mmi;y, and tha: the costs, expenses, and leggy! for environmental investigations, monitoring, containment abatement, removal, repair, cleanup, restoration, remedial work, penalties, and fines arising �•. «�;sn;.;, - �'- -.- -1;:;��wr� =xac�r s:. �s: -a.�r,.e...ac;u:er- sr.��r:c.,wr r -.. ° nSY<sa,� - >__`r .�,�F,: from strict liability, or violation of any local, state, or federal law or regulation, attorney's fees, disbursements, and other response costs incurred as a result of such releases or spills are expressly within the scope of this indemnity. 13.3 Applicant shall, on SCE's request, defend any action, claim or suit asserting a claim that may be covered by this indemnity. Applicant shall pay all costs and expenses that may be incurred by SCE in enforcing this indemnity, including reasonable attorney's fees. This indemnity shall survive the termination of this Agreement for any reason. 13.4 If this Agreement is assigned pursuant to Section 10.0, Applicant agrees that this indemnification shall continue to apply to SCE and shall apply to the assignee. 14.0 LIMITATION OF LIABILITY SCE shall not be liable for any special, incidental, indirect, or consequential damages, including without limitation, loss of profits or commitments to subcontractors, and any special, incidental, indirect or consequential damages incurred by Applicant. 15.0 WRITTEN NOTICE 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, email, nationally recognized overnight courier, or first class mail, postage prepaid; to the address specified below, or to another address specified in writing by SCE. SCE SCE Offer Manager: Address: City, State, Zip: Fax #: Email: Phone: James Hodge PO Box 800 Rosemead, CA 91770 626- 302 -6126 James.Hodge @SCE.com (626) 302 -0654 APPLICANT (CUSTOMER OR AUTHORIZED REPRESENTATIVE) Name: Company: Address: City, State, Zip Fax #: Email: Phone: Kurt Wiemann City of Santa Ana 20 Civic Center Plaza, M -21 Santa Ana, CA 92707 Kwiemann @Santa - Ana.org 714 -647 -5639 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 otherwise on the Business Day following personal delivery; (b) if mailed, three Business Days after the date the notice is postmarked; (c) if by facsimile or email, upon electronic confirmation of transmission, followed by telephone no'ifica'lon of transmission by the noticing Party; or (d) if by overnight courier, on the r e ^e r�us,ness Day �oiio-,,,n� d. ��� ejy to the overnight courier v;itnin the time I'm, ILS set by gnat courier for next -day d'=!' „er. 16.0 CONFLICTS BETWEEN TERNIS Should a confiict exist bet,veen the main body of this Agreement and the documents incorporated by reference, the main body of this Agreement shall ��s- . Y_-_- _ L _7 Cn control. Should a conflict exist In the documents Incorporated by reference, the documents shall control in the following order: 1) SCE acceptance letter(s) and Incentive estimate(s) based on solutions approved in the Application; and (2) the Partnership Agreement applicable to Applicant, and (3) Applicant's approved Application(s). Should a conflict exist between an applicable federal, State, or local law, rule, regulation, order or code and this Agreement, the law, rule, regulation, order or code shall control. Varying degrees of stringency among the main body of this Agreement, the documents incorporated by reference, and laws, rules, regulations, orders, or codes are not deemed conflicts, and the most stringent requirement shall control. Each Party shall notify the other Immediately upon the identification of any conflict or inconsistency concerning this Agreement. 17.0 CANCELLATION OF AGREEMENT: SCE may suspend or terminate the Agreement, with cause, upon written notice to the Applicant identified in Section 15 hereof. SCE may suspend or terminate the Agreement upon written notice to the Applicant if funding for the Program is depleted, or If SCE determines suspension or termination of the Agreement is necessary in order to make changes to the related Program or if SCE is ordered by the CPUC to modify or discontinue a Program and /or any agreements related to a Program. 18,0 MISCELLANEOUS This Agreement shall at all times be subject to such changes or modifications by the CPUC as it may from time to time direct in the exercise of its jurisdiction. This Agreement shall be governed and construed in accordance with the laws of the State of California, without regard to its conflict of laws provisions. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect. This Agreement constitutes the entire agreement and understanding between the Parties as to the subject matter of this Agreement and supersedes all prior agreements, representations, writings and discussions between the Parties, whether oral or written, with respect to the subject matter hereof. No amendment, modification or change to this Agreement shall be binding or effective unless expressly set forth in writing and signed by SCE's representative authorized to execute the Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date set forth below 0 Title: Name Printed: Mark Wallenrod APPLICANT CUSTOMER 14UTHORIZED AGENT) By Title: Interim City Manager Name Kevin O'Rourke Printed: RAfi. 1 'I x1113 ATTE1,Vt w C /2ita,,,,ic �� MARIA D. HUIZAR c CLERK OF THE COUNCIL CUSTOUIZEOSOLUTIONS CONTRACT -LOCAL "VFRPi✓iPF ITACID[PIS"TI'I'UTIOPiAL FART Fr RSHIP 7 OF CALWCO A J 5c'"M EDISON A. IDYO'AY AYRR­T1p - C_' 2010 - 2012 CUSTOMIZED SOLUTIONS AGREEMENT FOR LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIPS Application Project Name Santa Ana LED Street Lighting 3 -001- 3271 -97 Mdt -Site Service Account # 193 -12- 0500255099 UPN 7/27/12 Date Received. SCE Customer Information Calculated Approach X City of Santa Ana COMPANY NAME (Agency /Institution /Local Government) 20 Civic Center Plaza M -21 Santa Ana /CA 92707 ADDRESS CITY /STATE ZIP CODE Kurt Wiemann Kwiemann @santa- ana.org CONTACT NAME EMAIL ADDRESS Projects Manager 714 -647 -5639 TITLE TELEPHONE NO. FAX NO Tax Status: Corp. Non -Corp. X Exempt, Reason: Government 95- 6000785 COMPANY /CORP. FEDERAL TAX ID Authorized Agent Information COMPANY NAME CORPORATE PARENT NAME (if applicable): ADDRESS CITY /STATE ZIP CODE CONTACT NAME EMAIL ADDRESS TITLE TELEPHONE NO. FAX NO, Tax Status: Corp. Ncn -Corp. Exempt, Reason: COMPANY /CORP. FEDERAL TAX ID LED Street Lighting Retrofit - Scope #4 � I E iNA..M E: SI T F I D,;; (if a Gitc2bi =) Greenviiie /Sgerstr, Multi -Site Santa Ana;CA 92701 S T -___-_;3 CT',' T,,. -= ZI CCGE Kurt \,liemann 714 -647 -5639 3-001­3271-97. s SITE COi dT,2,CT NAM.-E COiiNTACT PHONE SCE ELEC r :RIC ACCO! ; ?. Si ; 7 .,_ -.,u. ..,... -,., �.. _ .. ... _.._ 3.a'.:i1tL�tYF!ASb2LClf'�4'• Final Approved Savings and Incentive Estimate SE)iE1TI€?4f5'EIESCRIFTIt71v° ... Gode ....= cwit. leoitveAriwt i .. q Exterior LED Street Lighting LT -48371 83,997.00 0.00 $9,239.67 Total Approved Savings/incentive Estimates 83,997.00 0.00 $9,239.67 Incentive Adjustment due to Project Cost Incentive Adjustment due to Project Site Ca Total Estimated Incentive $9,239.67 2010 — 2012 CUSTOMIZED SOLUTIONS AGREEMENT TERMS AND CONDITIONS FOR LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIPS This Customized Solutions Agreement ( "Agreement ") is entered into by Southern California Edison Company ( "SCE ") and the Customer or the Customer's Authorized Agent, as identified on page 1 above (each deemed an "Applicant" for purposes of this Agreement). Applicant agrees to review these terms and conditions. Any implementation of a project hereunder will be deemed to be acceptance by the Applicant of such terms and conditions, and such terms and conditions shall be binding on the Applicant (both Customer and Authorized Agent, if applicable). If these terms and conditions are not acceptable to Applicant, then Applicant must notify SCE and refrain from any implementation of the project, otherwise will proceed at their own risk. SCE and Applicant may be individually referred to as a "Party" and collectively as the "Parties." 1.0 PROJECT DESCRIPTION This Agreement is limited to those projects and /or solutions described in the applicable 2010 -2012 Energy Management Solutions - Incentive Application for Business Customers (together with all forms attached thereto, and referred to herein as the "Application "). As stated in the Application, SCE shall pay incentives to Applicant, or such other party properly authorized to receive payment, in accordance with the terms and conditions of this Agreement. The Customized Solutions Program ( "Program ") is further described in the 2010 Customized Statewide Procedures Manual for Business ( "Program Manual ") and at www.sce.com /customized solutions. 2.0 DOCUMENTS INCORPORATED BY REFERENCE The following documents are hereby Incorporated by reference and made part of this Agreement: (i) Applicant's completed, signed and Submit'° r 'I aii0 (M SCE FCCePta. letter's) based on the enery i Sa'iinl- --Q!'- :tIQnS CrQ ^r:Q 1 i the Application, and (iii) the agreement (or memorandum of understanding, as applicable) to jointly e 2 i -72 cnerg; �,- ,'icie —y Partners Program app!'Cab'e to the °a, ?'.es (ihe 'Part; ershi- �a -_ S ?.I -'I 4 Nl� ",ST 7 _ _1,A - .,�,.,;r - 3.0 ELIGIBILITY Program funding is limited and is available on a first -come, first - served basis. Funds will be reserved only upon both SCE's written approval of the Application and SCE's execution of this Agreement. Projects must meet the following requirements to be eligible for payment of Program incentives ( "Incentive(s) "): (1) Project site must be a nonresidential facility located within SCE's service territory; (2) SCE Customers must pay the Public Goods Charge ( "PGC ") on the SCE electric meter where the energy efficient equipment is installed; (3) Projects will be evaluated using the Calculated Approach and /or the Measured Savings Approach (also known as measurement and verification ( "M &V"); (4) Energy savings and demand reduction resulting from the project must be above and beyond baseline energy performance, which include state - mandated codes, federal- mandated codes, industry- accepted performance standards or other baseline energy performance standards as determined by SCE; (5) Projects must meet all other Program requirements, terms and conditions; (6) Applicant certifies that Applicant will not apply for or receive rebates, incentives, or services covered by this Agreement in an amount greater than the total cost of the project or solution(s) (including labor and materials); and (7) The Applicant certifies that the solutions covered by this Agreement have not and will not receive any funds from any other utility, state or local program funded by the PGC surcharge. 4.0 SUBMITTAL REQUIREMENTS FOR PAYMENT Applicant shall submit to SCE the documents described below prior to being eligible for payment of Incentives. Required documents include, but are not limited to: (1) This Agreement, fully executed and with the attached documents referenced in Item 2.0 above; (2) Complete engineering calculations to demonstrate energy savings and documentation, if applicable (including archival diskette, CD, etc.); (3) Schematic drawings and /or manufacturer specification sheets, if applicable; (4) Invoices and /or documentation to support solution costs, at SCE's request; (5) Project Installation Report; (6) Operating Report, if M &V is required; and (7) Any other documents related to the project, project site, solutions, energy savings or otherwise requested by SCE in its sole discretion, in connection with the Program. 5.0 INSPECTIONS Applicant is solely responsible for ensuring that SCE has reasonable access for all inspections, including but not limited to: (1) Pre - installation equipment inspection to examine the existing /baseline equipment and to check the accuracy of Applicant's equipment survey; (2) Post - installation equipment inspection to check installed equipment and to verify accuracy of Applicant's equipment survey; (3) Post - operation inspection to verify energy savings of the solutions after installed equipment has been operating, if requested by SCE; and (4) Inspection for any other Program - related reason that SCE, in its sole discretion, deems necessary. 6.0 REVIEW AND DISCLAIMER SCE'S AND /OR ITS CONSULTANTS' REVIEW OF THE DESIGN, CONSTRUCTION, OPERATION OR MAINTENANCE OF THE PROJECT OR ENERGY EFFICIENCY SOLUTIONS SHALL NOT CONSTITUTE ANY REPRESENTATION AS TO THE ECONOMIC OR TECHNICAL FEASIBILITY, OPERATIONAL CAPABILITY, OR RELIABILITY OF THE PROJECT OR SOLUTIONS, NOR SHALL THE APPLICANT, IN ANY WAY, MAKE SUCH A REPRESENTATION TO A THIRD PARTY. APPLICANT IS SOLELY RESPONSIBLE FOR THE ECONOMIC AND TECHNICAL FEASIBILITY, CONSTRUCTION, OPERATIONAL CAPABILITY AND RELIABILITY OF APPLICANT'S PROJECT AND SOLUTIONS. SCE MAKES NO WARRANTY, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, USE OR APPLICATION. 7.0 PAYMENTS Payment of Incentives will be made only after all Program requirements are met by Applicant to SCE's sole satisfaction. Payment of Incentives will be made as designated by Customer in Section 8 of t1he Application. 7.1 SCE retains sc'e discretion to determine the appropriate baseline values and energy Sa,,^ s ca:cula.on�'a�ed -- determine Inc: pej'meniS. 7, c- Shari 3r'',� Ge pa:d on cr.5 t �t exceed t; ^,e baseline performance standards applica'bie ;vhen th;s Agreer~.ent is .„.,�.,_„�. y..�., -,:_� •� _: -: --�� - ...�- �•.�-�.�- .;rte= :��,+:r:> signed. SCE reserves the right to modify or cancel the Incentive amount if the actual solution installed differs from the installation as set forth in this Agreement. 7.2 The total Incentive payment under the Calculated Savings Approach or Measured Savings Approach shall not exceed the total Incentive in the Final Approved Savings Estimate (as presented on Page 2 of this Agreement). However, projects may (at the discretion of SCE) be eligible for Incentive payments in excess of the Final Approved Savings Estimate if the project results in: (a) increased actual energy savings resulting from the installation of a greater quantity of the approved solutions (as outlined in SCE's acceptance letter); (b) increased actual energy savings resulting from greater efficiencies than estimated (as outlined in the SCE acceptance letter); and /or (c) greater actual project costs than originally estimated. Partnership Incentive levels and Incentive caps shall apply according to the terms of the applicable Partnership Agreement. The total Incentive payment shall not exceed the total project cost as defined in the Program Manual. 7.3 Energy savings for which Incentives are paid cannot exceed the actual electric usage for each SCE Customer service account for which Incentives are being requested. Non -SCE supply, such as cogeneration or deliveries from another commodity supplier, does not qualify as usage from SCE (with the exception of Direct Access customers or customers paying departing load fees for which SCE collects PGC surcharges). 7.4 SCE will make the applicable Incentive payment to the designated payee, in one or more installments, only after all required and /or requested documents have been submitted to, and approved by, SCE, and the appropriate inspection(s) of the project or project site have been completed in accordance with the Program rules set forth in the Program Manual. 7.5 Except as provided below, all projects and /or solutions must be completely installed and fully operational one year from SCE's written project Application approval date to be eligible for Incentive payments. SCE reserves the right to cease making Incentive payment(s), require the return of the total or prorated Incentive payments, and /or terminate this Agreement if the project is not completely installed and fully operational by the applicable date as indicated above, unless an installation extension is granted by SCE. 8.0 PAYMENT DISQUALIFICATION Any Incentives received by Applicant shall be repaid to SCE, in whole or in part, as follows: 8.1 If Customer fails to pay the PGC surcharge throughout the Term of this Agreement. In this event, the total estimated amount of the Incentives shall be prorated and any Incentive payment shall be based on the energy savings that occur during the payment of the PGC surcharge. 8.2 If (1) Customer does not provide SCE with 100% of the related energy benefits specified in this Agreement for the life of the product or for a period of five (5) years from receipt of the Incentive, whichever is less, or (2) the energy benefit to SCE ceases in any way, including but not limited to Customer and /or the project site ceasing to receive electricity from SCE, the solution, equipment and!or project ceasing to function, or Customer ceasing the use of the equ�.prnent, solution or project site. Applicant shall refund to SCE a prorated amount of the on actual �,d t .'m= r „h' � ( � ^ : � �� r .l :. �•.• •�i ici = uJ.Jii��.r N ^J�iil:�'� Me energy benefit as an SCE custcmer. 8.3 A.P ,licant s; ^a "I repay any Incenti e- arno :,,'s due to SCE �, itr n thirty (30) calendar days of notification by SCE. Repayment is required In accordance ,vith Sections 8.1 and 8.2 above. iS7 7 -c�,. SCE shall be entitled to offset against payments owed to Applicant any amount due to SCE that remains unpaid forty (40) calendar days after SCE's written demand for payment. 9.0 TERM AND TERMINATION The term of this Agreement shall commence on the last date that a Party executes this Agreement and shall terminate no later than five (5) years from SCE's written project Installation Report approval date, unless terminated earlier pursuant to this Agreement ( "Term ") 10.0 ASSIGNMENT SCE may assign this Agreement, or its rights and obligations hereunder, directly or indirectly, without prior written consent, provided SCE remains obligated for payments incurred prior to the assignment. Applicant may not assign its rights or delegate its duties without the prior written consent of SCE, which shall not be unreasonably withheld or delayed. If an assignment is requested, Applicant is obligated to provide additional information if requested by SCE. 11.0 PERMITS AND LICENSES Applicant, at its own expense, shall obtain and maintain and cause its contractors and /or subcontractors to obtain and maintain licenses and permits required by federal, state, local, or other relevant governing or regulatory bodies needed to perform its work. Any failure by Applicant or its contractors and /or subcontractors to maintain necessary licenses and permits constitutes a material breach of Applicant's obligations under this Agreement. 12.0 ADVERTISING, MARKETING AND USE OF SCE'S NAME Applicant shall not use SCE's corporate name, trademark, trade name, logo, identity or any affiliation for any reason, including soliciting customers to participate in the project, without SCE's prior written consent. Applicant shall make no representations to its customers on behalf of SCE. 13.0 INDEMNIFICATION To the extent Applicant has (i) executed a Partnership Agreement with SCE and is a direct party thereto, and (ii) such Partnership Agreement contains indemnity provisions covering Applicant's performance under the Program and this Agreement, then such Indemnity provisions shall apply to this Agreement and the remainder of this Section 13 shall have no force and effect. For all other Applicants (including, but not limited to, program participants, contractors, consultants, and others who are not direct parties to a Partnership Agreement with SCE containing such indemnity provisions), the following shall apply: 13.1 Applicant shall indemnify, defend and hold harmless, and release SCE, its affiliates, subsidiaries, parent companies, officers, directors, agents and employees, from and against all claims, demands, losses, damages, costs, expenses, and liability (legal, contractual, or otherwise), which arise from or are in any way connected with any: (i) injury to or death of persons, including but not limited to employees of SCE or Applicant; (ii) injury to property or other interests of SCE, Applicant, or any third party;(iii) violation of local, state, or federal common law, statute, or regulation, including but not limited to environmental laws or regulations; or (iv) strict liability imposed by any law or regulation; so long as such injury, violation, or strict liability (as set forth in (i) - (iv) above) arises from or is in any way connected with Applicant 's performance of, or failure to perform, this Agreement, however caused, regardless of any strict liability or negligence of SCE whether active or passive, excepting only such loss, damage, cost, expense, liability, strict liability, or violation of law or regulation that is caused by the sole negligence or willful misconduct of SCE, its officers, managers or employees. 13.2 A ^piicant acknoviledges that any clams, demands, losses. damages, Costs, expenses, i,l t a'is° Cu o, res t from, G,' a'8 in an "iuy Cr e'u :`rli i the release 0� s�pi'I of any legally designated hazardous material or waste as a result of the work performed udder :: hs A cement are expressly 4`i:,h „ t --= . :o pe of th;s inc--=14y, and that th Cisa ' eX'Denses. and le a! liao!llt_y f" or e n"i ronmen'.a l ; ni eo` .aa` :ons, monitoring, containment, abatement, removal, repair, cleanup, restoration, remedial work, penalties, and fines arising .ai.r.}y��m -. __.._..___•""'----- -;-- -- :•-Y .� Y._� �R� = -v:v :7:- ••�i".sv:xu. -. from strict liability, or violation of any local, state, or federal law or regulation, attorney's fees, disbursements, and other response costs incurred as a result of such releases or spills are expressly within the scope of this indemnity. 13.3 Applicant shall, on SCE's request, defend any action, claim or suit asserting a claim that may be covered by this indemnity. Applicant shall pay all costs and expenses that may be incurred by SCE in enforcing this indemnity, including reasonable attorney's fees. This indemnity shall survive the termination of this Agreement for any reason. 13.4 If this Agreement is assigned pursuant to Section 10.0, Applicant agrees that this indemnification shall continue to apply to SCE and shall apply to the assignee. 14.0 LIMITATION OF LIABILITY SCE shall not be liable for any special, incidental, indirect, or consequential damages, including without limitation, loss of profits or commitments to subcontractors, and any special, incidental, indirect or consequential damages incurred by Applicant. 15.0 WRITTEN NOTICE 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, email, nationally recognized overnight courier, or first class mail, postage prepaid; to the address specified below, or to another address specified in writing by SCE. SCE SCE Offer Manager: Address: City, State, Zip: Fax #: Email: Phone: James Hodge PO Box 800 Rosemead, CA 91770 626- 302 -6126 James.Hodge @SCE.com (626) 302 -0654 APPLICANT (CUSTOMER OR AUTHORIZED REPRESENTATIVE) Name: Company: Address: City, State, Zip: Fax #: Email: Phone: Kurt Wiemann City of Santa Ana 20 Civic Center Plaza, M -21 Santa Ana, CA 92707 Kwiemann @Santa - Ana.org 714- 647 -5639 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 otherwise on the Business Day following personal delivery; (b) if mailed, three Business Days after the date the notice is postmarked; (c) if by facsimile or email, upon electronic confirmation of transmission, followed by telephone noti-lication of transmission by the noticing Party; or (d) if by overnight courier, on the 3.'siness Day fv lo,, ing oeii' /ery to the oiernlgnl courier ,,Yi?nin time limits + �^ the miss set by than courier for next -day 16.0 CONFLICTS BETWEEN TER` S Should a conflict exist be��veen the main body of this Agreement and the documents incorporated by reference, the main body of this Agreement shall control. Should a conflict exist In the documents Incorporated by reference, the documents shall control in the following order: 1) SCE acceptance letter(s) and Incentive estimate(s) based on solutions approved in the Application; and (2) the Partnership Agreement applicable to Applicant, and (3) Applicant's approved Application(s). Should a conflict exist between an applicable federal, State, or local law, rule, regulation, order or code and this Agreement, the law, rule, regulation, order or code shall control. Varying degrees of stringency among the main body of this Agreement, the documents incorporated by reference, and laws, rules, regulations, orders, or codes are not deemed conflicts, and the most stringent requirement shall control. Each Party shall notify the other Immediately upon the identification of any conflict or inconsistency concerning this Agreement. 17.0 CANCELLATION OF AGREEMENT: SCE may suspend or terminate the Agreement, with cause, upon written notice to the Applicant identified in Section 15 hereof. SCE may suspend or terminate the Agreement upon written notice to the Applicant if funding for the Program is depleted, or If SCE determines suspension or termination of the Agreement is necessary in order to make changes to the related Program or if SCE is ordered by the CPUC to modify or discontinue a Program and /or any agreements related to a Program. 18,0 MISCELLANEOUS This Agreement shall at all times be subject to such changes or modifications by the CPUC as it may from time to time direct in the exercise of its jurisdiction. This Agreement shall be governed and construed in accordance with the laws of the State of California, without regard to its conflict of laws provisions. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect. This Agreement constitutes the entire agreement and understanding between the Parties as to the subject matter of this Agreement and supersedes all prior agreements, representations, writings and discussions between the Parties, whether oral or written, with respect to the subject matter hereof. No amendment, modification or change to this Agreement shall be binding or effective unless expressly set forth in writing and signed by SCE's representative authorized to execute the Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date set forth below 0 Title: Name Printed: Mark Wallenrod APPLICANT CUSTOMER 14UTHORIZED AGENT) By Title: Interim City Manager Name Kevin O'Rourke Printed: RAfi. 1 'I x1113 ATTE1,Vt w C /2ita,,,,ic �� MARIA D. HUIZAR c CLERK OF THE COUNCIL CUSTOUIZEOSOLUTIONS CONTRACT -LOCAL "VFRPi✓iPF ITACID[PIS"TI'I'UTIOPiAL FART Fr RSHIP 7 OF rOMrHILM CAUFCOu EDISON W ®M0.. �MR•l4T%M.LL- Ogwf 2010 — 2012 CUSTOMIZED SOLUTIONS AGREEMENT FOR LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIPS Application Project Name Santa Ana LED Street Lighting multi -site Service Account # UPN 193 -12- 0500255299 Date Received: 07/27/2012 SCE Custome City of Santa Ana COMPANY NAME (Agency /Institution /Local Government) 20 Civic Center Plaza, M -21 ADDRESS Kurt Weimann CONTACT NAME Project Manager TITLE Tax Status: Corp. _ Non - Corp. " ' Exempt. Reason Authorized Ager Calculated Approach X Santa Ana, CA 92707 CITY /STATE ZIP CODE kwiemann @ santa - ana.org EMAIL ADDRESS 714- 647 -5639 TELEPHONE NO. FAX NO Government 95- 6000785 COMPANY /CORP. FEDERAL TAX ID COMPANY NAME CORPORATE PARENT NAME (if applicable): ADDRESS CITY /STATE ZIP CODE CONTACT NAME EMAIL ADDRESS TITLE TELEPHONE NO. FAX NO, Tax Status: Corp. _ Non -Corp. Exempt, Reason: Site Information COMPANY /CORP. FEDERAL TAX ID Santa Ana LED Street Lighting SITE NAME SITE I.D.# (if applicable) multiple sites Santa Ana 92707 SITE ADDRESS CITY /STATE ZIP CODE Kurt Wiemann 714 - 647 -5639 multiple SA #s SITE CONTACT NAME CONTACT PHONE # SCE ELECTRIC ACCOLINT(S) # CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 1 OF 7 Final Approved Savings and Incentive Estimate `SOLUTIONS DESCRIPTION'. r. ,.•Code , _. -kWh . ,z. KIN = P , r a. >� $ �noentrve�\mount .: Exterior LED street lighting LT -48371 72,553.00 0 00 $7,980.83 Total Ap roved Savin s /Incentive Estimates 72,553.00 0.00 $7,980.83 Incentive Adjustment due to Project Cost Incentive Adjustment due to Project Site Ca Total Estimated Incentive $7,980.83 2010 — 2012 CUSTOMIZED SOLUTIONS AGREEMENT TERMS AND CONDITIONS FOR LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIPS This Customized Solutions Agreement ( "Agreement ") is entered into by Southern California Edison Company ( "SCE ") and the Customer or the Customer's Authorized Agent, as identified on page 1 above (each deemed an "Applicant" for purposes of this Agreement). Applicant agrees to review these terms and conditions. Any implementation of a project hereunder will be deemed to be acceptance by the Applicant of such terms and conditions, and such terms and conditions shall be binding on the Applicant (both Customer and Authorized Agent, if applicable). If these terms and conditions are not acceptable to Applicant, then Applicant must notify SCE and refrain from any implementation of the project, otherwise will proceed at their own risk. SCE and Applicant may be individually referred to as a "Party" and collectively as the "Parties." 1.0 PROJECT DESCRIPTION This Agreement is limited to those projects and /or solutions described in the applicable 2010 -2012 Energy Management Solutions - Incentive Application for Business Customers (together with all forms attached thereto, and referred to herein as the "Application "). As stated in the Application, SCE shall pay incentives to Applicant, or such other party properly authorized to receive payment, in accordance with the terms and conditions of this Agreement. The Customized Solutions Program ( "Program ") is further described in the 2010 Customized Statewide Procedures Manual for Business ( "Program Manual ") and at www.sce.com /customized solutions. 2.0 DOCUMENTS INCORPORATED BY REFERENCE The following documents are hereby Incorporated by reference and made part of this Agreement: (i) Applicant's completed, signed and submitted Application, (ii) SCE acceptance letter(s) based on the energy saving solutions proposed in the Application, and (iii) the agreement (or memorandum of understanding, as applicable) to jointly deliver the 2010 -12 Energy Efficiency Partnership Program applicable to the Parties (the "Partnership Agreement'). CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 2 OF 7 3.0 ELIGIBILITY Program funding is limited and is available on a first -come, first- served basis. Funds will be reserved only upon both SCE's written approval of the Application and SCE's execution of this Agreement. Projects must meet the following requirements to be eligible for payment of Program incentives ( "Incentive(s) "): (1) Project site must be a nonresidential facility located within SCE's service territory; (2) SCE Customers must pay the Public Goods Charge ( "PGC ") on the SCE electric meter where the energy efficient equipment is installed; (3) Projects will be evaluated using the Calculated Approach and /or the Measured Savings Approach (also known as measurement and verification ( "M &V"); (4) Energy savings and demand reduction resulting from the project must be above and beyond baseline energy performance, which include state - mandated codes, federal- mandated codes, industry- accepted performance standards or other baseline energy performance standards as determined by SCE; (5) Projects must meet all other Program requirements, terms and conditions; (6) Applicant certifies that Applicant will not apply for or receive rebates, incentives, or services covered by this Agreement in an amount greater than the total cost of the project or solution(s) (including labor and materials); and (7) The Applicant certifies that the solutions covered by this Agreement have not and will not receive any funds from any other utility, state or local program funded by the PGC surcharge. 4.0 SUBMITTAL REQUIREMENTS FOR PAYMENT Applicant shall submit to SCE the documents described below prior to being eligible for payment of Incentives. Required documents include, but are not limited to: (1) This Agreement, fully executed and with the attached documents referenced in Item 2.0 above; (2) Complete engineering calculations to demonstrate energy savings and documentation, if applicable (including archival diskette, CD, etc.); (3) Schematic drawings and /or manufacturer specification sheets, if applicable; (4) Invoices and /or documentation to support solution costs, at SCE's request; (5) Project Installation Report; (6) Operating Report, if M &V is required; and (7) Any other documents related to the project, project site, solutions, energy savings or otherwise requested by SCE in its sole discretion, in connection with the Program. 5.0 INSPECTIONS Applicant is solely responsible for ensuring that SCE has reasonable access for all inspections, including but not limited to: (1) Pre - installation equipment inspection to examine the existing /baseline equipment and to check the accuracy of Applicant's equipment survey; (2) Post - installation equipment inspection to check installed equipment and to verify accuracy of Applicant's equipment survey; (3) Post - operation inspection to verify energy savings of the solutions after installed equipment has been operating, if requested by SCE; and (4) Inspection for any other Program - related reason that SCE, in its sole discretion, deems necessary. 6.0 REVIEW AND DISCLAIMER SCE'S AND /OR ITS CONSULTANTS' REVIEW OF THE DESIGN, CONSTRUCTION, OPERATION OR MAINTENANCE OF THE PROJECT OR ENERGY EFFICIENCY SOLUTIONS SHALL NOT CONSTITUTE ANY REPRESENTATION AS TO THE ECONOMIC OR TECHNICAL FEASIBILITY, OPERATIONAL CAPABILITY, OR RELIABILITY OF THE PROJECT OR SOLUTIONS, NOR SHALL THE APPLICANT, IN ANY WAY, MAKE SUCH A REPRESENTATION TO A THIRD PARTY. APPLICANT IS SOLELY RESPONSIBLE FOR THE ECONOMIC AND TECHNICAL FEASIBILITY, CONSTRUCTION, OPERATIONAL CAPABILITY AND RELIABILITY OF APPLICANT'S PROJECT AND SOLUTIONS. SCE MAKES NO WARRANTY, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, USE OR APPLICATION. 7.0 PAYMENTS Payment of Incentives will be made only after all Program requirements are met by Applicant to SCE's sole satisfaction. Payment of Incentives will be made as designated by Customer in Section 8 of the Application. 7.1 SCE retains sole discretion to determine the appropriate baseline values and energy savings calculations used to determine Incentive payments. Incentives shall only be paid on projects that exceed the baseline performance standards applicable when this Agreement is CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 3 OF 7 signed. SCE reserves the right to modify or cancel the Incentive amount if the actual solution installed differs from the installation as set forth in this Agreement. 7.2 The total Incentive payment under the Calculated Savings Approach or Measured Savings Approach shall not exceed the total Incentive in the Final Approved Savings Estimate (as presented on Page 2 of this Agreement). However, projects may (at the discretion of SCE) be eligible for Incentive payments in excess of the Final Approved Savings Estimate if the project results in: (a) increased actual energy savings resulting from the installation of a greater quantity of the approved solutions (as outlined in SCE's acceptance letter); (b) increased actual energy savings resulting from greater efficiencies than estimated (as outlined in the SCE acceptance letter); and /or (c) greater actual project costs than originally estimated. Partnership Incentive levels and Incentive caps shall apply according to the terms of the applicable Partnership Agreement. The total Incentive payment shall not exceed the total project cost as defined in the Program Manual. 7.3 Energy savings for which Incentives are paid cannot exceed the actual electric usage for each SCE Customer service account for which Incentives are being requested. Non -SCE supply, such as cogeneration or deliveries from another commodity supplier, does not qualify as usage from SCE (with the exception of Direct Access customers or customers paying departing load fees for which SCE collects PGC surcharges). 7.4 SCE will make the applicable Incentive payment to the designated payee, in one or more installments, only after all required and /or requested documents have been submitted to, and approved by, SCE, and the appropriate inspection(s) of the project or project site have been completed in accordance with the Program rules set forth in the Program Manual. 7.5 Except as provided below, all projects and /or solutions must be completely installed and fully operational one year from SCE's written project Application approval date to be eligible for Incentive payments. SCE reserves the right to cease making Incentive payment(s), require the return of the total or prorated Incentive payments, and /or terminate this Agreement if the project is not completely installed and fully operational by the applicable date as indicated above, unless an installation extension is granted by SCE. 8.0 PAYMENT DISQUALIFICATION Any Incentives received by Applicant shall be repaid to SCE, in whole or in part, as follows: 8.1 If Customer fails to pay the PGC surcharge throughout the Term of this Agreement. In this event, the total estimated amount of the Incentives shall be prorated and any Incentive payment shall be based on the energy savings that occur during the payment of the PGC surcharge. 8.2 If (1) Customer does not provide SCE with 100% of the related energy benefits specified in this Agreement for the life of the product or for a period of five (5) years from receipt of the Incentive, whichever is less, or (2) the energy benefit to SCE ceases in any way, including but not limited to Customer and /or the project site ceasing to receive electricity from SCE, the solution, equipment and /or project ceasing to function, or Customer ceasing the use of the equipment, solution or project site. Applicant shall refund to SCE a prorated amount of the Incentive dollars based on the actual period of time for which Customer provided the energy benefit as an SCE customer. 8.3 Applicant shall repay any Incentive amounts due to SCE within thirty (30) calendar days of notification by SCE. Repayment is required In accordance with Sections 8.1 and 8.2 above. CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 4 OF 7 SCE shall be entitled to offset against payments owed to Applicant any amount due to SCE that remains unpaid forty (40) calendar days after SCE's written demand for payment. 9.0 TERM AND TERMINATION The term of this Agreement shall commence on the last date that a Party executes this Agreement and shall terminate no later than five (5) years from SCE's written project Installation Report approval date, unless terminated earlier pursuant to this Agreement ( "Term "). 10.0 ASSIGNMENT SCE may assign this Agreement, or its rights and obligations hereunder, directly or indirectly, without prior written consent, provided SCE remains obligated for payments incurred prior to the assignment. Applicant may not assign its rights or delegate its duties without the prior written consent of SCE, which shall not be unreasonably withheld or delayed. If an assignment is requested, Applicant is obligated to provide additional information if requested by SCE. 11.0 PERMITS AND LICENSES Applicant, at its own expense, shall obtain and maintain and cause its contractors and /or subcontractors to obtain and maintain licenses and permits required by federal, state, local, or other relevant governing or regulatory bodies needed to perform its work. Any failure by Applicant or its contractors and /or subcontractors to maintain necessary licenses and permits constitutes a material breach of Applicant's obligations under this Agreement. 12.0 ADVERTISING, MARKETING AND USE OF SCE'S NAME Applicant shall not use SCE's corporate name, trademark, trade name, logo, identity or any affiliation for any reason, including soliciting customers to participate in the project, without SCE's prior written consent. Applicant shall make no representations to its customers on behalf of SCE. 13.0 INDEMNIFICATION To the extent Applicant has (i) executed a Partnership Agreement with SCE and is a direct party thereto, and (ii) such Partnership Agreement contains indemnity provisions covering Applicant's performance under the Program and this Agreement, then such Indemnity provisions shall apply to this Agreement and the remainder of this Section 13 shall have no force and effect. For all other Applicants (including, but not limited to, program participants, contractors, consultants, and others who are not direct parties to a Partnership Agreement with SCE containing such indemnity provisions), the following shall apply: 13.1 Applicant shall indemnify, defend and hold harmless, and release SCE, its affiliates, subsidiaries, parent companies, officers, directors, agents and employees, from and against all claims, demands, losses, damages, costs, expenses, and liability (legal, contractual, or otherwise), which arise from or are in any way connected with any: (i) injury to or death of persons, including but not limited to employees of SCE or Applicant; (ii) injury to property or other interests of SCE, Applicant, or any third party;(iii) violation of local, state, or federal common law, statute, or regulation, including but not limited to environmental laws or regulations; or (iv) strict liability imposed by any law or regulation; so long as such injury, violation, or strict liability (as set forth in (i) - (iv) above) arises from or is in any way connected with Applicant's performance of, or failure to perform, this Agreement, however caused, regardless of any strict liability or negligence of SCE whether active or passive, excepting only such loss, damage, cost, expense, liability, strict liability, or violation of law or regulation that is caused by the sole negligence or willful misconduct of SCE, its officers, managers or employees. 13.2 Applicant acknowledges that any claims, demands, losses, damages, costs, expenses, and legal liability that arise out of, result from, or are in any way connected with the release or spill of any legally designated hazardous material or waste as a result of the work performed under this Agreement are expressly within the scope of this indemnity, and that the costs, expenses, and legal liability for environmental investigations, monitoring, containment, abatement, removal, repair, cleanup, restoration, remedial work, penalties, and fines arising CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSH P 5 OF 7 from strict liability, or violation of any local, state, or federal law or regulation, attorney's fees, disbursements, and other response costs incurred as a result of such releases or spills are expressly within the scope of this indemnity. 13.3 Applicant shall, on SCE's request, defend any action, claim or suit asserting a claim that may be covered by this indemnity. Applicant shall pay all costs and expenses that may be incurred by SCE in enforcing this indemnity, including reasonable attorney's fees. This indemnity shall survive the termination of this Agreement for any reason. 13.4 If this Agreement is assigned pursuant to Section 10.0, Applicant agrees that this indemnification shall continue to apply to SCE and shall apply to the assignee. 14.0 LIMITATION OF LIABILITY SCE shall not be liable for any special, incidental, indirect, or consequential damages, including without limitation, loss of profits or commitments to subcontractors, and any special, incidental, indirect or consequential damages incurred by Applicant. 15.0 WRITTEN NOTICE 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, email, nationally recognized overnight courier, or first class mail, postage prepaid; to the address specified below, or to another address specified in writing by SCE. SCE SCE Offer Manager: Address: City, State, Zip: Fax #: Email: Phone: Jim Hodge PO Box 800 Rosemead, CA 91770 jim.hodge @sce.com (626) 302 -0654 APPLICANT (CUSTOMER OR AUTHORIZED REPRESENTATIVE) Name: Company: Address: City, State, Zip: Fax #: Email: Phone: Kurt Weimann City of Santa Ana 20 Civic Center Plaza, M -21 Santa Ana, CA 92707 kwiemann @santa - ana.org 714 - 647 -5639 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 otherwise on the Business Day following personal delivery; (b) if mailed, three Business Days after the date the notice is postmarked; (c) if by facsimile or email, 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. 16.0 CONFLICTS BETWEEN TERMS Should a conflict exist between the main body of this Agreement and the documents incorporated by reference, the main body of this Agreement shall CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 6 OF 7 control. Should a conflict exist In the documents Incorporated by reference, the documents shall control in the following order: 1) SCE acceptance letter(s) and Incentive estimate(s) based on solutions approved in the Application; and (2) the Partnership Agreement applicable to Applicant, and (3) Applicant's approved Application(s). Should a conflict exist between an applicable federal, State, or local law, rule, regulation, order or code and this Agreement, the law, rule, regulation, order or code shall control. Varying degrees of stringency among the main body of this Agreement, the documents incorporated by reference, and laws, rules, regulations, orders, or codes are not deemed conflicts, and the most stringent requirement shall control. Each Party shall notify the other Immediately upon the identification of any conflict or inconsistency concerning this Agreement. 17.0 CANCELLATION OF AGREEMENT: SCE may suspend or terminate the Agreement, with cause, upon written notice to the Applicant identified in Section 15 hereof. SCE may suspend or terminate the Agreement upon written notice to the Applicant if funding for the Program is depleted, or If SCE determines suspension or termination of the Agreement is necessary in order to make changes to the related Program or if SCE is ordered by the CPUC to modify or discontinue a Program and /or any agreements related to a Program. 18,0 MISCELLANEOUS This Agreement shall at all times be subject to such changes or modifications by the CPUC as it may from time to time direct in the exercise of its jurisdiction. This Agreement shall be governed and construed in accordance with the laws of the State of California, without regard to its conflict of laws provisions. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect. This Agreement constitutes the entire agreement and understanding between the Parties as to the subject matter of this Agreement and supersedes all prior agreements, representations, writings and discussions between the Parties, whether oral or written, with respect to the subject matter hereof. No amendment, modification or change to this Agreement shall be binding or effective unless expressly set forth in writing and signed by SCE's representative authorized to execute the Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date set forth below 0 Title: Name Printed: Mark Wallenrod APPLICANT CUSTOMER 14UTHORIZED AGENT) By Title: Interim City Manager Name Kevin O'Rourke Printed: RAfi. 1 'I x1113 ATTE1,Vt w C /2ita,,,,ic �� MARIA D. HUIZAR c CLERK OF THE COUNCIL CUSTOUIZEOSOLUTIONS CONTRACT -LOCAL "VFRPi✓iPF ITACID[PIS"TI'I'UTIOPiAL FART Fr RSHIP 7 OF EDISON ,�. agar , nna�tw.wt- a.ve. 2010 — 2012 CUSTOMIZED SOLUTIONS AGREEMENT FOR LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIPS Application Project Name Santa Ana LED Street Lighting Service Account# multi -site UPN 193 -12- 0500255299 Date Received: 07/27/2012 SCE . - City of Santa Ana COMPANY NAME (Agency /Institution /Local Government) 20 Civic Center Plaza, M -21 ADDRESS Kurt Weimann CONTACT NAME Project Manager TITLE Tax Status: Corp. _ Non - Corp. " - Exempt. Reason Authorized •.- COMPANY NAME ADDRESS CONTACT NAME TITLE Tax Status: Corp. _ Non -Corp. _ Exempt. Reason: Site Inforr Santa Ana LED Street Lighting SITE NAME multiple sites SITE ADDRESS Kurt Wiemann 714 - 647 -5639 SITE CONTACT NAME Calculated Approach X Information _ Santa Ana, CA 92707 CITY /STATE ZIP CODE kwiemann @santa- ana.org EMAIL ADDRESS _ 714- 647 -5639 TELEPHONE NO. FAX NO Government 95- 6000785 COMPANY /CORP. FEDERAL TAX ID CORPORATE PARENT NAME (if applicable): CITY /STATE ZIP CODE EMAIL ADDRESS TELEPHONE NO, FAX NO COMPANY /CORP. FEDERAL TAX ID SITE I.D.# (if applicable) _ Santa Ana 92707 CITY /STATE ZIP CODE _ multiple SA #s CONTACT PHONE # SCE ELECTRIC ACCOUNT(S) # CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 1 OF 7 Final Approved Savings and Incentive Estimate SOLUTIONS DESCRIPTIbN €a :. rCode, ,st ,kWh '% ,. . ^.I(yl/ c . Ihcentive Amount Exterior LED street lighting LT -48371 72.553 00 0.00 $7,980.83 Total Approved Savings/Incentive Estimates 72,553.00 0.00 $7,980.83 Incentive Adjustment due to Project Cost Incentive Adjustment due to Project Site Ca Total Estimated Incentive $7,980.83 2010 — 2012 CUSTOMIZED SOLUTIONS AGREEMENT TERMS AND CONDITIONS FOR LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIPS This Customized Solutions Agreement ( "Agreement ") is entered into by Southern California Edison Company ( "SCE ") and the Customer or the Customer's Authorized Agent, as identified on page 1 above (each deemed an "Applicant" for purposes of this Agreement). Applicant agrees to review these terms and conditions. Any implementation of a project hereunder will be deemed to be acceptance by the Applicant of such terms and conditions, and such terms and conditions shall be binding on the Applicant (both Customer and Authorized Agent, if applicable). If these terms and conditions are not acceptable to Applicant, then Applicant must notify SCE and refrain from any implementation of the project, otherwise will proceed at their own risk. SCE and Applicant may be individually referred to as a "Party" and collectively as the "Parties." 1.0 PROJECT DESCRIPTION This Agreement is limited to those projects and /or solutions described in the applicable 2010 -2012 Energy Management Solutions - Incentive Application for Business Customers (together with all forms attached thereto, and referred to herein as the "Application "). As stated in the Application, SCE shall pay incentives to Applicant, or such other party properly authorized to receive payment, in accordance with the terms and conditions of this Agreement. The Customized Solutions Program ( "Program ") is further described in the 2010 Customized Statewide Procedures Manual for Business ( "Program Manual ") and at www.sce.com /customized solutions. 2.0 DOCUMENTS INCORPORATED BY REFERENCE The following documents are hereby Incorporated by reference and made part of this Agreement: (i) Applicant's completed, signed and submitted Application, (ii) SCE acceptance letter(s) based on the energy saving solutions proposed in the Application, and (iii) the agreement (or memorandum of understanding, as applicable) to jointly deliver the 2010 -12 Energy Efficiency Partnership Program applicable to the Parties (the "Partnership Agreement "). CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 2 OF 7 3.0 ELIGIBILITY Program funding is limited and is available on a first -come, first- served basis. Funds will be reserved only upon both SCE's written approval of the Application and SCE's execution of this Agreement. Projects must meet the following requirements to be eligible for payment of Program incentives ( "Incentive(s) "): (1) Project site must be a nonresidential facility located within SCE's service territory; (2) SCE Customers must pay the Public Goods Charge ( "PGC ") on the SCE electric meter where the energy efficient equipment is installed; (3) Projects will be evaluated using the Calculated Approach and /or the Measured Savings Approach (also known as measurement and verification ( "M &V"); (4) Energy savings and demand reduction resulting from the project must be above and beyond baseline energy performance, which include state - mandated codes, federal- mandated codes, industry- accepted performance standards or other baseline energy performance standards as determined by SCE; (5) Projects must meet all other Program requirements, terms and conditions; (6) Applicant certifies that Applicant will not apply for or receive rebates, incentives, or services covered by this Agreement in an amount greater than the total cost of the project or solution(s) (including labor and materials); and (7) The Applicant certifies that the solutions covered by this Agreement have not and will not receive any funds from any other utility, state or local program funded by the PGC surcharge. 4.0 SUBMITTAL REQUIREMENTS FOR PAYMENT Applicant shall submit to SCE the documents described below prior to being eligible for payment of Incentives. Required documents include, but are not limited to: (1) This Agreement, fully executed and with the attached documents referenced in Item 2.0 above; (2) Complete engineering calculations to demonstrate energy savings and documentation, if applicable (including archival diskette, CD, etc.); (3) Schematic drawings and /or manufacturer specification sheets, if applicable; (4) Invoices and /or documentation to support solution costs, at SCE's request; (5) Project Installation Report; (6) Operating Report, if M &V is required; and (7) Any other documents related to the project, project site, solutions, energy savings or otherwise requested by SCE in its sole discretion, in connection with the Program. 5.0 INSPECTIONS Applicant is solely responsible for ensuring that SCE has reasonable access for all inspections, including but not limited to: (1) Pre - installation equipment inspection to examine the existing /baseline equipment and to check the accuracy of Applicant's equipment survey; (2) Post - installation equipment inspection to check installed equipment and to verify accuracy of Applicant's equipment survey; (3) Post - operation inspection to verify energy savings of the solutions after installed equipment has been operating, if requested by SCE; and (4) Inspection for any other Program - related reason that SCE, in its sole discretion, deems necessary. 6.0 REVIEW AND DISCLAIMER SCE'S AND /OR ITS CONSULTANTS' REVIEW OF THE DESIGN, CONSTRUCTION, OPERATION OR MAINTENANCE OF THE PROJECT OR ENERGY EFFICIENCY SOLUTIONS SHALL NOT CONSTITUTE ANY REPRESENTATION AS TO THE ECONOMIC OR TECHNICAL FEASIBILITY, OPERATIONAL CAPABILITY, OR RELIABILITY OF THE PROJECT OR SOLUTIONS, NOR SHALL THE APPLICANT, IN ANY WAY, MAKE SUCH A REPRESENTATION TO A THIRD PARTY. APPLICANT IS SOLELY RESPONSIBLE FOR THE ECONOMIC AND TECHNICAL FEASIBILITY, CONSTRUCTION, OPERATIONAL CAPABILITY AND RELIABILITY OF APPLICANT'S PROJECT AND SOLUTIONS. SCE MAKES NO WARRANTY, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, USE OR APPLICATION. 7.0 PAYMENTS Payment of Incentives will be made only after all Program requirements are met by Applicant to SCE's sole satisfaction. Payment of Incentives will be made as designated by Customer in Section 8 of the Application. 7.1 SCE retains sole discretion to determine the appropriate baseline values and energy savings calculations used to determine Incentive payments. Incentives shall only be paid on projects that exceed the baseline performance standards applicable when this Agreement is CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 3 OF 7 signed. SCE reserves the right to modify or cancel the Incentive amount if the actual solution installed differs from the installation as set forth in this Agreement. 7.2 The total Incentive payment under the Calculated Savings Approach or Measured Savings Approach shall not exceed the total Incentive in the Final Approved Savings Estimate (as presented on Page 2 of this Agreement). However, projects may (at the discretion of SCE) be eligible for Incentive payments in excess of the Final Approved Savings Estimate if the project results in: (a) increased actual energy savings resulting from the installation of a greater quantity of the approved solutions (as outlined in SCE's acceptance letter); (b) increased actual energy savings resulting from greater efficiencies than estimated (as outlined in the SCE acceptance letter); and /or (c) greater actual project costs than originally estimated. Partnership Incentive levels and Incentive caps shall apply according to the terms of the applicable Partnership Agreement. The total Incentive payment shall not exceed the total project cost as defined in the Program Manual. 7.3 Energy savings for which Incentives are paid cannot exceed the actual electric usage for each SCE Customer service account for which Incentives are being requested. Non -SCE supply, such as cogeneration or deliveries from another commodity supplier, does not qualify as usage from SCE (with the exception of Direct Access customers or customers paying departing load fees for which SCE collects PGC surcharges). 7.4 SCE will make the applicable Incentive payment to the designated payee, in one or more installments, only after all required and /or requested documents have been submitted to, and approved by, SCE, and the appropriate inspection(s) of the project or project site have been completed in accordance with the Program rules set forth in the Program Manual. 7.5 Except as provided below, all projects and /or solutions must be completely installed and fully operational one year from SCE's written project Application approval date to be eligible for Incentive payments. SCE reserves the right to cease making Incentive payment(s), require the return of the total or prorated Incentive payments, and /or terminate this Agreement if the project is not completely installed and fully operational by the applicable date as indicated above, unless an installation extension is granted by SCE. 8.0 PAYMENT DISQUALIFICATION Any Incentives received by Applicant shall be repaid to SCE, in whole or in part, as follows: 8.1 If Customer fails to pay the PGC surcharge throughout the Term of this Agreement. In this event, the total estimated amount of the Incentives shall be prorated and any Incentive payment shall be based on the energy savings that occur during the payment of the PGC surcharge. 8.2 If (1) Customer does not provide SCE with 100% of the related energy benefits specified in this Agreement for the life of the product or for a period of five (5) years from receipt of the Incentive, whichever is less, or (2) the energy benefit to SCE ceases in any way, including but not limited to Customer and /or the project site ceasing to receive electricity from SCE, the solution, equipment and /or project ceasing to function, or Customer ceasing the use of the equipment, solution or project site. Applicant shall refund to SCE a prorated amount of the Incentive dollars based on the actual period of time for which Customer provided the energy benefit as an SCE customer. 8.3 Applicant shall repay any Incentive amounts due to SCE within thirty (30) calendar days of notification by SCE. Repayment is required In accordance with Sections 8.1 and 8.2 above. CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 4 OF 7 SCE shall be entitled to offset against payments owed to Applicant any amount due to SCE that remains unpaid forty (40) calendar days after SCE's written demand for payment. 9.0 TERM AND TERMINATION The term of this Agreement shall commence on the last date that a Party executes this Agreement and shall terminate no later than five (5) years from SCE's written project Installation Report approval date, unless terminated earlier pursuant to this Agreement ( "Term "). 10.0 ASSIGNMENT SCE may assign this Agreement, or its rights and obligations hereunder, directly or indirectly, without prior written consent, provided SCE remains obligated for payments incurred prior to the assignment. Applicant may not assign its rights or delegate its duties without the prior written consent of SCE, which shall not be unreasonably withheld or delayed. If an assignment is requested, Applicant is obligated to provide additional information if requested by SCE. 11.0 PERMITS AND LICENSES Applicant, at its own expense, shall obtain and maintain and cause its contractors and /or subcontractors to obtain and maintain licenses and permits required by federal, state, local, or other relevant governing or regulatory bodies needed to perform its work. Any failure by Applicant or its contractors and /or subcontractors to maintain necessary licenses and permits constitutes a material breach of Applicant's obligations under this Agreement. 12.0 ADVERTISING, MARKETING AND USE OF SCE'S NAME Applicant shall not use SCE's corporate name, trademark, trade name, logo, identity or any affiliation for any reason, including soliciting customers to participate in the project, without SCE's prior written consent. Applicant shall make no representations to its customers on behalf of SCE. 13.0 INDEMNIFICATION To the extent Applicant has (i) executed a Partnership Agreement with SCE and is a direct party thereto, and (ii) such Partnership Agreement contains indemnity provisions covering Applicant's performance under the Program and this Agreement, then such Indemnity provisions shall apply to this Agreement and the remainder of this Section 13 shall have no force and effect. For all other Applicants (including, but not limited to, program participants, contractors, consultants, and others who are not direct parties to a Partnership Agreement with SCE containing such indemnity provisions), the following shall apply: 13.1 Applicant shall indemnify, defend and hold harmless, and release SCE, its affiliates, subsidiaries, parent companies, officers, directors, agents and employees, from and against all claims, demands, losses, damages, costs, expenses, and liability (legal, contractual, or otherwise), which arise from or are in any way connected with any: (i) injury to or death of persons, including but not limited to employees of SCE or Applicant; (ii) injury to property or other interests of SCE, Applicant, or any third party;(iii) violation of local, state, or federal common law, statute, or regulation, including but not limited to environmental laws or regulations; or (iv) strict liability imposed by any law or regulation; so long as such injury, violation, or strict liability (as set forth in (i) - (iv) above) arises from or is in any way connected with Applicant's performance of, or failure to perform, this Agreement, however caused, regardless of any strict liability or negligence of SCE whether active or passive, excepting only such loss, damage, cost, expense, liability, strict liability, or violation of law or regulation that is caused by the sole negligence or willful misconduct of SCE, its officers, managers or employees. 13.2 Applicant acknowledges that any claims, demands, losses, damages, costs, expenses, and legal liability that arise out of, result from, or are in any way connected with the release or spill of any legally designated hazardous material or waste as a result of the work performed under this Agreement are expressly within the scope of this indemnity, and that the costs, expenses, and legal liability for environmental investigations, monitoring, containment, abatement, removal, repair, cleanup, restoration, remedial work, penalties, and fines arising CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 5 OF 7 from strict liability, or violation of any local, state, or federal law or regulation, attorney's fees, disbursements, and other response costs incurred as a result of such releases or spills are expressly within the scope of this indemnity. 13.3 Applicant shall, on SCE's request, defend any action, claim or suit asserting a claim that may be covered by this indemnity. Applicant shall pay all costs and expenses that may be incurred by SCE in enforcing this indemnity, including reasonable attorney's fees. This indemnity shall survive the termination of this Agreement for any reason. 13.4 If this Agreement is assigned pursuant to Section 10.0, Applicant agrees that this indemnification shall continue to apply to SCE and shall apply to the assignee. 14.0 LIMITATION OF LIABILITY SCE shall not be liable for any special, incidental, indirect, or consequential damages, including without limitation, loss of profits or commitments to subcontractors, and any special, incidental, indirect or consequential damages incurred by Applicant. 15.0 WRITTEN NOTICE 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, email, nationally recognized overnight courier, or first class mail, postage prepaid; to the address specified below, or to another address specified in writing by SCE. SCE SCE Offer Manager: Address: City, State, Zip: Fax #: Email: Phone: Jim Hodge PO Box 800 Rosemead, CA 91770 jim.hodge @sce.com (626) 302 -0654 APPLICANT (CUSTOMER OR AUTHORIZED REPRESENTATIVE) Name: Company: Address: City, State, Zip: Fax #: Email: Phone: Kurt Weimann City of Santa Ana 20 Civic Center Plaza, M -21 Santa Ana, CA 92707 kwiemann @santa - ana.org 714- 647 -5639 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 otherwise on the Business Day following personal delivery; (b) if mailed, three Business Days after the date the notice is postmarked; (c) if by facsimile or email, 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. 16.0 CONFLICTS BETWEEN TERMS Should a conflict exist between the main body of this Agreement and the documents incorporated by reference, the main body of this Agreement shall CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 6 OF 7 control. Should a conflict exist In the documents Incorporated by reference, the documents shall control in the following order: 1) SCE acceptance letter(s) and Incentive estimate(s) based on solutions approved in the Application; and (2) the Partnership Agreement applicable to Applicant, and (3) Applicant's approved Application(s). Should a conflict exist between an applicable federal, State, or local law, rule, regulation, order or code and this Agreement, the law, rule, regulation, order or code shall control. Varying degrees of stringency among the main body of this Agreement, the documents incorporated by reference, and laws, rules, regulations, orders, or codes are not deemed conflicts, and the most stringent requirement shall control. Each Party shall notify the other Immediately upon the identification of any conflict or inconsistency concerning this Agreement. 17.0 CANCELLATION OF AGREEMENT: SCE may suspend or terminate the Agreement, with cause, upon written notice to the Applicant identified in Section 15 hereof. SCE may suspend or terminate the Agreement upon written notice to the Applicant if funding for the Program is depleted, or If SCE determines suspension or termination of the Agreement is necessary in order to make changes to the related Program or if SCE is ordered by the CPUC to modify or discontinue a Program and /or any agreements related to a Program. 18,0 MISCELLANEOUS This Agreement shall at all times be subject to such changes or modifications by the CPUC as it may from time to time direct in the exercise of its jurisdiction. This Agreement shall be governed and construed in accordance with the laws of the State of California, without regard to its conflict of laws provisions. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect. This Agreement constitutes the entire agreement and understanding between the Parties as to the subject matter of this Agreement and supersedes all prior agreements, representations, writings and discussions between the Parties, whether oral or written, with respect to the subject matter hereof. No amendment, modification or change to this Agreement shall be binding or effective unless expressly set forth in writing and signed by SCE's representative authorized to execute the Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date set forth below 0 Title: Name Printed: Mark Wallenrod APPLICANT CUSTOMER 14UTHORIZED AGENT) By Title: Interim City Manager Name Kevin O'Rourke Printed: RAfi. 1 'I x1113 ATTE1,Vt w C /2ita,,,,ic �� MARIA D. HUIZAR c CLERK OF THE COUNCIL CUSTOUIZEOSOLUTIONS CONTRACT -LOCAL "VFRPi✓iPF ITACID[PIS"TI'I'UTIOPiAL FART Fr RSHIP 7 OF 5WHEM CKf0&44 EDISON w. l2verty +r+remuno.cu- owRr 2010 — 2012 CUSTOMIZED SOLUTIONS AGREEMENT FOR LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIPS Application Project Name LED Street Lighting Retrofit -Scope #4 3-001- 3272 -92. Multk&te Service Account # UPN 193 -12- 0500314488 Date Received: November 15, 2012 SCE . - City of Santa Ana COMPANY NAME (Agency /Institution /Local Government) 20 Civic Center Plaza M -21 ADDRESS Kurt Wiemann CONTACT NAME Projects Manager TITLE Tax Status: Corp. _ Non -Corp. X Exempt, Reason Authorized •.- COMPANY NAME ADDRESS Calculated Approach X Santa Ana /CA 92702 CITY /STATE ZIP CODE Kwiemann @santa - ana.org EMAIL ADDRESS 714 - 647 -5639 TELEPHONE NO. FAX NO Government 95- 6000785 COMPANY /CORP. FEDERAL TAX ID CORPORATE PARENT NAME (if applicable): CITY /STATE ZIP CODE CONTACT NAME EMAIL ADDRESS TITLE TELEPHONE NO. FAX NO. Tax Status: Corp. _ Non-Corp. _ Exempt, Reason: Site Information COMPANY /CORP. FEDERAL TAX ID LED Street Lighting Retrofit -Scope #4 SITE NAME SITE I.D.# (if applicable) 1st St. /Center, Multi -Site Santa Ana /CA 92701 SITE ADDRESS CITY /STATE ZIP CODE Kurt Wiemann 714 - 647 -5639 3- 001- 3272 -92, Multi -Site SITE CONTACT NAME CONTACT PHONE # SCE ELECTRIC ACCOUNT(S) # CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 1 OF Final Approved Savings and Incentive Estimate SOLUTIONS DESCRIPTION Code kWh tCW $Incentive Amo unt Exterior LED street lighting LT -48371 72,126.00 0.00 $7,933.86 Total Approved Savings/incentive Estimates 72,126.00 0.00 $7,933.86 Incentive Adjustment due to Project Cost Incentive Adjustment due to Project Site Ca Total Estimated Incentive $7,933.86 2010 — 2012 CUSTOMIZED SOLUTIONS AGREEMENT TERMS AND CONDITIONS FOR LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIPS This Customized Solutions Agreement ( "Agreement ") is entered into by Southern California Edison Company ( "SCE ") and the Customer or the Customer's Authorized Agent, as identified on page 1 above (each deemed an "Applicant" for purposes of this Agreement). Applicant agrees to review these terms and conditions. Any implementation of a project hereunder will be deemed to be acceptance by the Applicant of such terms and conditions, and such terms and conditions shall be binding on the Applicant (both Customer and Authorized Agent, if applicable). If these terms and conditions are not acceptable to Applicant, then Applicant must notify SCE and refrain from any implementation of the project, otherwise will proceed at their own risk. SCE and Applicant may be individually referred to as a "Party" and collectively as the "Parties." 1.0 PROJECT DESCRIPTION This Agreement is limited to those projects and /or solutions described in the applicable 2010 -2012 Energy Management Solutions - Incentive Application for Business Customers (together with all forms attached thereto, and referred to herein as the "Application "). As stated in the Application, SCE shall pay incentives to Applicant, or such other party properly authorized to receive payment, in accordance with the terms and conditions of this Agreement. The Customized Solutions Program ( "Program ") is further described in the 2010 Customized Statewide Procedures Manual for Business ( "Program Manual ") and at www.sce.com /customized solutions. 2.0 DOCUMENTS INCORPORATED BY REFERENCE The following documents are hereby Incorporated by reference and made part of this Agreement: (i) Applicant's completed, signed and submitted Application, (ii) SCE acceptance letter(s) based on the energy saving solutions proposed in the Application, and (iii) the agreement (or memorandum of understanding, as applicable) to jointly deliver the 2010 -12 Energy Efficiency Partnership Program applicable to the Parties (the "Partnership Agreement "). CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 2 OF 7 3.0 ELIGIBILITY Program funding is limited and is available on a first -come, first -served basis. Funds will be reserved only upon both SCE's written approval of the Application and SCE's execution of this Agreement. Projects must meet the following requirements to be eligible for payment of Program incentives ( "Incentive(s) "): (1) Project site must be a nonresidential facility located within SCE's service territory; (2) SCE Customers must pay the Public Goods Charge ( "PGC ") on the SCE electric meter where the energy efficient equipment is installed; (3) Projects will be evaluated using the Calculated Approach and /or the Measured Savings Approach (also known as measurement and verification ( "M &V"); (4) Energy savings and demand reduction resulting from the project must be above and beyond baseline energy performance, which include state - mandated codes, federal- mandated codes, industry- accepted performance standards or other baseline energy performance standards as determined by SCE; (5) Projects must meet all other Program requirements, terms and conditions; (6) Applicant certifies that Applicant will not apply for or receive rebates, incentives, or services covered by this Agreement in an amount greater than the total cost of the project or solution(s) (including labor and materials); and (7) The Applicant certifies that the solutions covered by this Agreement have not and will not receive any funds from any other utility, state or local program funded by the PGC surcharge. 4.0 SUBMITTAL REQUIREMENTS FOR PAYMENT Applicant shall submit to SCE the documents described below prior to being eligible for payment of Incentives. Required documents include, but are not limited to: (1) This Agreement, fully executed and with the attached documents referenced in Item 2.0 above; (2) Complete engineering calculations to demonstrate energy savings and documentation, if applicable (including archival diskette, CD, etc.); (3) Schematic drawings and /or manufacturer specification sheets, if applicable; (4) Invoices and /or documentation to support solution costs, at SCE's request; (5) Project Installation Report; (6) Operating Report, if M &V is required; and (7) Any other documents related to the project, project site, solutions, energy savings or otherwise requested by SCE in its sole discretion, in connection with the Program. 5.0 INSPECTIONS Applicant is solely responsible for ensuring that SCE has reasonable access for all inspections, including but not limited to: (1) Pre - installation equipment inspection to examine the existing /baseline equipment and to check the accuracy of Applicant's equipment survey; (2) Post - installation equipment inspection to check installed equipment and to verify accuracy of Applicant's equipment survey; (3) Post - operation inspection to verify energy savings of the solutions after installed equipment has been operating, if requested by SCE; and (4) Inspection for any other Program - related reason that SCE, in its sole discretion, deems necessary. 6.0 REVIEW AND DISCLAIMER SCE'S AND /OR ITS CONSULTANTS' REVIEW OF THE DESIGN, CONSTRUCTION, OPERATION OR MAINTENANCE OF THE PROJECT OR ENERGY EFFICIENCY SOLUTIONS SHALL NOT CONSTITUTE ANY REPRESENTATION AS TO THE ECONOMIC OR TECHNICAL FEASIBILITY, OPERATIONAL CAPABILITY, OR RELIABILITY OF THE PROJECT OR SOLUTIONS, NOR SHALL THE APPLICANT, IN ANY WAY, MAKE SUCH A REPRESENTATION TO A THIRD PARTY. APPLICANT IS SOLELY RESPONSIBLE FOR THE ECONOMIC AND TECHNICAL FEASIBILITY, CONSTRUCTION, OPERATIONAL CAPABILITY AND RELIABILITY OF APPLICANT'S PROJECT AND SOLUTIONS. SCE MAKES NO WARRANTY, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, USE OR APPLICATION. 7.0 PAYMENTS Payment of Incentives will be made only after all Program requirements are met by Applicant to SCE's sole satisfaction. Payment of Incentives will be made as designated by Customer in Section 8 of the Application. 7.1 SCE retains sole discretion to determine the appropriate baseline values and energy savings calculations used to determine Incentive payments. Incentives shall only be paid on projects that exceed the baseline performance standards applicable when this Agreement is CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 3 OF 7 signed. SCE reserves the right to modify or cancel the Incentive amount if the actual solution installed differs from the installation as set forth in this Agreement. 7.2 The total Incentive payment under the Calculated Savings Approach or Measured Savings Approach shall not exceed the total Incentive in the Final Approved Savings Estimate (as presented on Page 2 of this Agreement). However, projects may (at the discretion of SCE) be eligible for Incentive payments in excess of the Final Approved Savings Estimate if the project results in: (a) increased actual energy savings resulting from the installation of a greater quantity of the approved solutions (as outlined in SCE's acceptance letter); (b) increased actual energy savings resulting from greater efficiencies than estimated (as outlined in the SCE acceptance letter); and /or (c) greater actual project costs than originally estimated. Partnership Incentive levels and Incentive caps shall apply according to the terms of the applicable Partnership Agreement. The total Incentive payment shall not exceed the total project cost as defined in the Program Manual. 7.3 Energy savings for which Incentives are paid cannot exceed the actual electric usage for each SCE Customer service account for which Incentives are being requested. Non -SCE supply, such as cogeneration or deliveries from another commodity supplier, does not qualify as usage from SCE (with the exception of Direct Access customers or customers paying departing load fees for which SCE collects PGC surcharges). 7.4 SCE will make the applicable Incentive payment to the designated payee, in one or more installments, only after all required and /or requested documents have been submitted to, and approved by, SCE, and the appropriate inspection(s) of the project or project site have been completed in accordance with the Program rules set forth in the Program Manual. 7.5 Except as provided below, all projects and /or solutions must be completely installed and fully operational one year from SCE's written project Application approval date to be eligible for Incentive payments. SCE reserves the right to cease making Incentive payment(s), require the return of the total or prorated Incentive payments, and /or terminate this Agreement if the project is not completely installed and fully operational by the applicable date as indicated above, unless an installation extension is granted by SCE. 8.0 PAYMENT DISQUALIFICATION Any Incentives received by Applicant shall be repaid to SCE, in whole or in part, as follows: 8.1 If Customer fails to pay the PGC surcharge throughout the Term of this Agreement. In this event, the total estimated amount of the Incentives shall be prorated and any Incentive payment shall be based on the energy savings that occur during the payment of the PGC surcharge. 8.2 If (1) Customer does not provide SCE with 100% of the related energy benefits specified in this Agreement for the life of the product or for a period of five (5) years from receipt of the Incentive, whichever is less, or (2) the energy benefit to SCE ceases in any way, including but not limited to Customer and /or the project site ceasing to receive electricity from SCE, the solution, equipment and /or project ceasing to function, or Customer ceasing the use of the equipment, solution or project site. Applicant shall refund to SCE a prorated amount of the Incentive dollars based on the actual period of time for which Customer provided the energy benefit as an SCE customer. 8.3 Applicant shall repay any Incentive amounts due to SCE within thirty (30) calendar days of notification by SCE. Repayment is required In accordance with Sections 8.1 and 8.2 above. CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 4 OF 7 SCE shall be entitled to offset against payments owed to Applicant any amount due to SCE that remains unpaid forty (40) calendar days after SCE's written demand for payment. 9.0 TERM AND TERMINATION The term of this Agreement shall commence on the last date that a Party executes this Agreement and shall terminate no later than five (5) years from SCE's written project Installation Report approval date, unless terminated earlier pursuant to this Agreement ( "Term ") 10.0 ASSIGNMENT SCE may assign this Agreement, or its rights and obligations hereunder, directly or indirectly, without prior written consent, provided SCE remains obligated for payments incurred prior to the assignment. Applicant may not assign its rights or delegate its duties without the prior written consent of SCE, which shall not be unreasonably withheld or delayed. If an assignment is requested, Applicant is obligated to provide additional information if requested by SCE. 11.0 PERMITS AND LICENSES Applicant, at its own expense, shall obtain and maintain and cause its contractors and /or subcontractors to obtain and maintain licenses and permits required by federal, state, local, or other relevant governing or regulatory bodies needed to perform its work. Any failure by Applicant or its contractors and /or subcontractors to maintain necessary licenses and permits constitutes a material breach of Applicant's obligations under this Agreement. 12.0 ADVERTISING, MARKETING AND USE OF SCE'S NAME Applicant shall not use SCE's corporate name, trademark, trade name, logo, identity or any affiliation for any reason, including soliciting customers to participate in the project, without SCE's prior written consent. Applicant shall make no representations to its customers on behalf of SCE. 13.0 INDEMNIFICATION To the extent Applicant has (i) executed a Partnership Agreement with SCE and is a direct party thereto, and (ii) such Partnership Agreement contains indemnity provisions covering Applicant's performance under the Program and this Agreement, then such Indemnity provisions shall apply to this Agreement and the remainder of this Section 13 shall have no force and effect. For all other Applicants (including, but not limited to, program participants, contractors, consultants, and others who are not direct parties to a Partnership Agreement with SCE containing such indemnity provisions), the following shall apply: 13.1 Applicant shall indemnify, defend and hold harmless, and release SCE, its affiliates, subsidiaries, parent companies, officers, directors, agents and employees, from and against all claims, demands, losses, damages, costs, expenses, and liability (legal, contractual, or otherwise), which arise from or are in any way connected with any: (i) injury to or death of persons, including but not limited to employees of SCE or Applicant; (ii) injury to property or other interests of SCE, Applicant, or any third party;(iii) violation of local, state, or federal common law, statute, or regulation, including but not limited to environmental laws or regulations; or (iv) strict liability imposed by any law or regulation; so long as such injury, violation, or strict liability (as set forth in (i) - (iv) above) arises from or is in any way connected with Applicant's performance of, or failure to perform, this Agreement, however caused, regardless of any strict liability or negligence of SCE whether active or passive, excepting only such loss, damage, cost, expense, liability, strict liability, or violation of law or regulation that is caused by the sole negligence or willful misconduct of SCE, its officers, managers or employees. 13.2 Applicant acknowledges that any claims, demands, losses, damages, costs, expenses, and legal liability that arise out of, result from, or are in any way connected with the release or spill of any legally designated hazardous material or waste as a result of the work performed under this Agreement are expressly within the scope of this indemnity, and that the costs, expenses, and legal liability for environmental investigations, monitoring, containment, abatement, removal, repair, cleanup, restoration, remedial work, penalties, and fines arising CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 5 OF 7 from strict liability, or violation of any local, state, or federal law or regulation, attorney's fees, disbursements, and other response costs incurred as a result of such releases or spills are expressly within the scope of this indemnity. 13.3 Applicant shall, on SCE's request, defend any action, claim or suit asserting a claim that may be covered by this indemnity. Applicant shall pay all costs and expenses that may be incurred by SCE in enforcing this indemnity, including reasonable attorney's fees. This indemnity shall survive the termination of this Agreement for any reason. 13.4 If this Agreement is assigned pursuant to Section 10.0, Applicant agrees that this indemnification shall continue to apply to SCE and shall apply to the assignee. 14.0 LIMITATION OF LIABILITY SCE shall not be liable for any special, incidental, indirect, or consequential damages, including without limitation, loss of profits or commitments to subcontractors, and any special, incidental, indirect or consequential damages incurred by Applicant. 15.0 WRITTEN NOTICE 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, email, nationally recognized overnight courier, or first class mail, postage prepaid; to the address specified below, or to another address specified in writing by SCE. SCE SCE Offer Manager: Address: City, State, Zip: Fax #: Email: Phone: James Hodge PO Box 800 Rosemead, CA 91770 626 - 302 -6126 James.Hodge @SCE.com (626) 302 -0654 APPLICANT (CUSTOMER OR AUTHORIZED REPRESENTATIVE) Name: Company: Address: City, State, Zip: Fax #: Email: Phone: Kurt Wiemann City of Santa Ana 20 Civic Center Plaza M -21 Santa Ana, CA 92702 Kwiemann @santa- ana.org 714 - 647 -5639 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 otherwise on the Business Day following personal delivery; (b) if mailed, three Business Days after the date the notice is postmarked; (c) if by facsimile or email, 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. 16.0 CONFLICTS BETWEEN TERMS Should a conflict exist between the main body of this Agreement and the documents incorporated by reference, the main body of this Agreement shall CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 6 OF 7 control. Should a conflict exist In the documents Incorporated by reference, the documents shall control in the following order: 1) SCE acceptance letter(s) and Incentive estimate(s) based on solutions approved in the Application; and (2) the Partnership Agreement applicable to Applicant, and (3) Applicant's approved Application(s). Should a conflict exist between an applicable federal, State, or local law, rule, regulation, order or code and this Agreement, the law, rule, regulation, order or code shall control. Varying degrees of stringency among the main body of this Agreement, the documents incorporated by reference, and laws, rules, regulations, orders, or codes are not deemed conflicts, and the most stringent requirement shall control. Each Party shall notify the other Immediately upon the identification of any conflict or inconsistency concerning this Agreement. 17.0 CANCELLATION OF AGREEMENT: SCE may suspend or terminate the Agreement, with cause, upon written notice to the Applicant identified in Section 15 hereof. SCE may suspend or terminate the Agreement upon written notice to the Applicant if funding for the Program is depleted, or If SCE determines suspension or termination of the Agreement is necessary in order to make changes to the related Program or if SCE is ordered by the CPUC to modify or discontinue a Program and /or any agreements related to a Program. 18,0 MISCELLANEOUS This Agreement shall at all times be subject to such changes or modifications by the CPUC as it may from time to time direct in the exercise of its jurisdiction. This Agreement shall be governed and construed in accordance with the laws of the State of California, without regard to its conflict of laws provisions. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect. This Agreement constitutes the entire agreement and understanding between the Parties as to the subject matter of this Agreement and supersedes all prior agreements, representations, writings and discussions between the Parties, whether oral or written, with respect to the subject matter hereof. No amendment, modification or change to this Agreement shall be binding or effective unless expressly set forth in writing and signed by SCE's representative authorized to execute the Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date set forth below 0 Title: Name Printed: Mark Wallenrod APPLICANT CUSTOMER 14UTHORIZED AGENT) By Title: Interim City Manager Name Kevin O'Rourke Printed: RAfi. 1 'I x1113 ATTE1,Vt w C /2ita,,,,ic �� MARIA D. HUIZAR c CLERK OF THE COUNCIL CUSTOUIZEOSOLUTIONS CONTRACT -LOCAL "VFRPi✓iPF ITACID[PIS"TI'I'UTIOPiAL FART Fr RSHIP 7 OF EDISON Ai 61X(V MT[1lVAf1pRAL� � 2010 - 2012 CUSTOMIZED SOLUTIONS AGREEMENT FOR LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIPS Application Project Name LED Street Lighting Retrofit -Scope #4 3-001- 3272 -92. Multi -Site Service Account # LPN 193 -12- 0500314488 NnvPmhPr 1 S gn i q Date mec:Clvuu. - - - - - - - -- - • • -1 -- • - SCE Customer Information Calculated Approach X City of Santa Ana COMPANY NAME (Agency /Institution /Local Government) 20 Civic Center Plaza M -21 Santa Ana /CA 92702 ADDRESS CITY /STATE ZIP CODE Kurt Wiemann Kwiemann @ santa - ana.org CONTACT NAME EMAIL ADDRESS Projects Manager 714 - 647 -5639 TITLE TELEPHONE NO. FAX NO Tax Status: X Government 95- 6000785 Corp. Non -Corp. Exempt, Reason: COMPANY /CORP. FEDERAL TAX ID Authorized Agent Information COMPANY NAME CORPORATE PARENT NAME (if applicable): ADDRESS CITY /STATE ZIP CODE CONTACT NAME EMAIL ADDRESS TITLE TELEPHONE NO. FAX NO. Tax Status: Corp. _ Non -Corp. _ Exempt, Reason: COMPANY /CORP. FEDERAL TAX ID Site Information LED Street Lighting Retrofit -Scope #4 SITE NAME SITE 1. D.# (if applicable) 1 st St. /Center, Multi -Site Santa Ana /CA 92701 SITE ADDRESS Kurt Wiemann SITE CONTACT NAME 714 - 647 -5639 CITY /STATE 3- 001- 3272 -92, Multi -Site CONTACT PHONE # SCE ELECTRIC ACCOUNT(S) # CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP ZIP CODE 1 OF Final Approved Savings and Incentive Estimate SOLUTIONs`DESCRIPTION Code kWh KW - $ Incentive Amount Exterior LED street lighting LT -48371 72,126.00 0.00 $7,933.86 Total Approved Savings/Incentive Estimates 72,126.00 0.00 $7,933.86 Incentive Adjustment due to Project Cost Incentive Adjustment due to Project Site Cap I Total Estimated Incentive $7,933.86 2010 — 2012 CUSTOMIZED SOLUTIONS AGREEMENT TERMS AND CONDITIONS FOR LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIPS This Customized Solutions Agreement ( "Agreement ") is entered into by Southern California Edison Company ( "SCE ") and the Customer or the Customer's Authorized Agent, as identified on page 1 above (each deemed an "Applicant" for purposes of this Agreement). Applicant agrees to review these terms and conditions. Any implementation of a project hereunder will be deemed to be acceptance by the Applicant of such terms and conditions, and such terms and conditions shall be binding on the Applicant (both Customer and Authorized Agent, if applicable). If these terms and conditions are not acceptable to Applicant, then Applicant must notify SCE and refrain from any implementation of the project, otherwise will proceed at their own risk. SCE and Applicant may be individually referred to as a "Party" and collectively as the "Parties." 1.0 PROJECT DESCRIPTION This Agreement is limited to those projects and /or solutions described in the applicable 2010 -2012 Energy Management Solutions - Incentive Application for Business Customers (together with all forms attached thereto, and referred to herein as the "Application "). As stated in the Application, SCE shall pay incentives to Applicant, or such other party properly authorized to receive payment, in accordance with the terms and conditions of this Agreement. The Customized Solutions Program ( "Program ") is further described in the 2010 Customized Statewide Procedures Manual for Business ( "Program Manual ") and at www.sce.com /customized solutions. 2.0 DOCUMENTS INCORPORATED BY REFERENCE The following documents are hereby Incorporated by reference and made part of this Agreement: (i) Applicant's completed, signed and submitted Application, (ii) SCE acceptance letter(s) based on the energy saving solutions proposed in the Application, and (iii) the agreement (or memorandum of understanding, as applicable) to jointly deliver the 2010 -12 Energy Efficiency Partnership Program applicable to the Parties (the "Partnership Agreement "). CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 2 OF 7 3.0 ELIGIBILITY Program funding is limited and is available on a first -come, first -served basis. Funds will be reserved only upon both SCE's written approval of the Application and SCE's execution of this Agreement. Projects must meet the following requirements to be eligible for payment of Program incentives ( "Incentive(s) "): (1) Project site must be a nonresidential facility located within SCE's service territory; (2) SCE Customers must pay the Public Goods Charge ( "PGC ") on the SCE electric meter where the energy efficient equipment is installed; (3) Projects will be evaluated using the Calculated Approach and /or the Measured Savings Approach (also known as measurement and verification ( "M &V"); (4) Energy savings and demand reduction resulting from the project must be above and beyond baseline energy performance, which include state - mandated codes, federal- mandated codes, industry- accepted performance standards or other baseline energy performance standards as determined by SCE; (5) Projects must meet all other Program requirements, terms and conditions; (6) Applicant certifies that Applicant will not apply for or receive rebates, incentives, or services covered by this Agreement in an amount greater than the total cost of the project or solution(s) (including labor and materials); and (7) The Applicant certifies that the solutions covered by this Agreement have not and will not receive any funds from any other utility, state or local program funded by the PGC surcharge. 4.0 SUBMITTAL REQUIREMENTS FOR PAYMENT Applicant shall submit to SCE the documents described below prior to being eligible for payment of Incentives. Required documents include, but are not limited to: (1) This Agreement, fully executed and with the attached documents referenced in Item 2.0 above; (2) Complete engineering calculations to demonstrate energy savings and documentation, if applicable (including archival diskette, CD, etc.); (3) Schematic drawings and /or manufacturer specification sheets, if applicable; (4) Invoices and /or documentation to support solution costs, at SCE's request; (5) Project Installation Report; (6) Operating Report, if M &V is required; and (7) Any other documents related to the project, project site, solutions, energy savings or otherwise requested by SCE in its sole discretion, in connection with the Program. 5.0 INSPECTIONS Applicant is solely responsible for ensuring that SCE has reasonable access for all inspections, including but not limited to: (1) Pre - installation equipment inspection to examine the existing /baseline equipment and to check the accuracy of Applicant's equipment survey; (2) Post - installation equipment inspection to check installed equipment and to verify accuracy of Applicant's equipment survey; (3) Post - operation inspection to verify energy savings of the solutions after installed equipment has been operating, if requested by SCE; and (4) Inspection for any other Program - related reason that SCE, in its sole discretion, deems necessary. 6.0 REVIEW AND DISCLAIMER SCE'S AND /OR ITS CONSULTANTS' REVIEW OF THE DESIGN, CONSTRUCTION, OPERATION OR MAINTENANCE OF THE PROJECT OR ENERGY EFFICIENCY SOLUTIONS SHALL NOT CONSTITUTE ANY REPRESENTATION AS TO THE ECONOMIC OR TECHNICAL FEASIBILITY, OPERATIONAL CAPABILITY, OR RELIABILITY OF THE PROJECT OR SOLUTIONS, NOR SHALL THE APPLICANT, IN ANY WAY, MAKE SUCH A REPRESENTATION TO A THIRD PARTY. APPLICANT IS SOLELY RESPONSIBLE FOR THE ECONOMIC AND TECHNICAL FEASIBILITY, CONSTRUCTION, OPERATIONAL CAPABILITY AND RELIABILITY OF APPLICANT'S PROJECT AND SOLUTIONS. SCE MAKES NO WARRANTY, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, USE OR APPLICATION. 7.0 PAYMENTS Payment of Incentives will be made only after all Program requirements are met by Applicant to SCE's sole satisfaction. Payment of Incentives will be made as designated by Customer in Section 8 of the Application. 7.1 SCE retains sole discretion to determine the appropriate baseline values and energy savings calculations used to determine Incentive payments. Incentives shall only be paid on projects that exceed the baseline performance standards applicable when this Agreement is CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 3 OF 7 signed. SCE reserves the right to modify or cancel the Incentive amount if the actual solution installed differs from the installation as set forth in this Agreement. 7.2 The total Incentive payment under the Calculated Savings Approach or Measured Savings Approach shall not exceed the total Incentive in the Final Approved Savings Estimate (as presented on Page 2 of this Agreement). However, projects may (at the discretion of SCE) be eligible for Incentive payments in excess of the Final Approved Savings Estimate if the project results in: (a) increased actual energy savings resulting from the installation of a greater quantity of the approved solutions (as outlined in SCE's acceptance letter); (b) increased actual energy savings resulting from greater efficiencies than estimated (as outlined in the SCE acceptance letter); and /or (c) greater actual project costs than originally estimated. Partnership Incentive levels and Incentive caps shall apply according to the terms of the applicable Partnership Agreement. The total Incentive payment shall not exceed the total project cost as defined in the Program Manual. 7.3 Energy savings for which Incentives are paid cannot exceed the actual electric usage for each SCE Customer service account for which Incentives are being requested. Non -SCE supply, such as cogeneration or deliveries from another commodity supplier, does not qualify as usage from SCE (with the exception of Direct Access customers or customers paying departing load fees for which SCE collects PGC surcharges). 7.4 SCE will make the applicable Incentive payment to the designated payee, in one or more installments, only after all required and /or requested documents have been submitted to, and approved by, SCE, and the appropriate inspection(s) of the project or project site have been completed in accordance with the Program rules set forth in the Program Manual. 7.5 Except as provided below, all projects and /or solutions must be completely installed and fully operational one year from SCE's written project Application approval date to be eligible for Incentive payments. SCE reserves the right to cease making Incentive payment(s), require the return of the total or prorated Incentive payments, and /or terminate this Agreement if the project is not completely installed and fully operational by the applicable date as indicated above, unless an installation extension is granted by SCE. 8.0 PAYMENT DISQUALIFICATION Any Incentives received by Applicant shall be repaid to SCE, in whole or in part, as follows: 8.1 If Customer fails to pay the PGC surcharge throughout the Term of this Agreement. In this event, the total estimated amount of the Incentives shall be prorated and any Incentive payment shall be based on the energy savings that occur during the payment of the PGC surcharge. 8.2 If (1) Customer does not provide SCE with 100% of the related energy benefits specified in this Agreement for the life of the product or for a period of five (5) years from receipt of the Incentive, whichever is less, or (2) the energy benefit to SCE ceases in any way, including but not limited to Customer and /or the project site ceasing to receive electricity from SCE, the solution, equipment and /or project ceasing to function, or Customer ceasing the use of the equipment, solution or project site. Applicant shall refund to SCE a prorated amount of the Incentive dollars based on the actual period of time for which Customer provided the energy benefit as an SCE customer. 8.3 Applicant shall repay any Incentive amounts due to SCE within thirty (30) calendar days of notification by SCE. Repayment is required In accordance with Sections 8.1 and 8.2 above. CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 4 OF 7 SCE shall be entitled to offset against payments owed to Applicant any amount due to SCE that remains unpaid forty (40) calendar days after SCE's written demand for payment. 9.0 TERM AND TERMINATION The term of this Agreement shall commence on the last date that a Party executes this Agreement and shall terminate no later than five (5) years from SCE's written project Installation Report approval date, unless terminated earlier pursuant to this Agreement ( "Term ") 10.0 ASSIGNMENT SCE may assign this Agreement, or its rights and obligations hereunder, directly or indirectly, without prior written consent, provided SCE remains obligated for payments incurred prior to the assignment. Applicant may not assign its rights or delegate its duties without the prior written consent of SCE, which shall not be unreasonably withheld or delayed. If an assignment is requested, Applicant is obligated to provide additional information if requested by SCE. 11.0 PERMITS AND LICENSES Applicant, at its own expense, shall obtain and maintain and cause its contractors and /or subcontractors to obtain and maintain licenses and permits required by federal, state, local, or other relevant governing or regulatory bodies needed to perform its work. Any failure by Applicant or its contractors and /or subcontractors to maintain necessary licenses and permits constitutes a material breach of Applicant's obligations under this Agreement. 12.0 ADVERTISING, MARKETING AND USE OF SCE'S NAME Applicant shall not use SCE's corporate name, trademark, trade name, logo, identity or any affiliation for any reason, including soliciting customers to participate in the project, without SCE's prior written consent. Applicant shall make no representations to its customers on behalf of SCE. 13.0 INDEMNIFICATION To the extent Applicant has (i) executed a Partnership Agreement with SCE and is a direct party thereto, and (ii) such Partnership Agreement contains indemnity provisions covering Applicant's performance under the Program and this Agreement, then such Indemnity provisions shall apply to this Agreement and the remainder of this Section 13 shall have no force and effect. For all other Applicants (including, but not limited to, program participants, contractors, consultants, and others who are not direct parties to a Partnership Agreement with SCE containing such indemnity provisions), the following shall apply: 13.1 Applicant shall indemnify, defend and hold harmless, and release SCE, its affiliates, subsidiaries, parent companies, officers, directors, agents and employees, from and against all claims, demands, losses, damages, costs, expenses, and liability (legal, contractual, or otherwise), which arise from or are in any way connected with any: (i) injury to or death of persons, including but not limited to employees of SCE or Applicant; (ii) injury to property or other interests of SCE, Applicant, or any third party;(iii) violation of local, state, or federal common law, statute, or regulation, including but not limited to environmental laws or regulations; or (iv) strict liability imposed by any law or regulation; so long as such injury, violation, or strict liability (as set forth in (i) - (iv) above) arises from or is in any way connected with Applicant's performance of, or failure to perform, this Agreement, however caused, regardless of any strict liability or negligence of SCE whether active or passive, excepting only such loss, damage, cost, expense, liability, strict liability, or violation of law or regulation that is caused by the sole negligence or willful misconduct of SCE, its officers, managers or employees. 13.2 Applicant acknowledges that any claims, demands, losses, damages, costs, expenses, and legal liability that arise out of, result from, or are in any way connected with the release or spill of any legally designated hazardous material or waste as a result of the work performed under this Agreement are expressly within the scope of this indemnity, and that the costs, expenses, and legal liability for environmental investigations, monitoring, containment, abatement, removal, repair, cleanup, restoration, remedial work, penalties, and fines arising CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 5 OF 7 from strict liability, or violation of any local, state, or federal law or regulation, attorney's fees, disbursements, and other response costs incurred as a result of such releases or spills are expressly within the scope of this indemnity. 13.3 Applicant shall, on SCE's request, defend any action, claim or suit asserting a claim that may be covered by this indemnity. Applicant shall pay all costs and expenses that may be incurred by SCE in enforcing this indemnity, including reasonable attorney's fees. This indemnity shall survive the termination of this Agreement for any reason. 13.4 If this Agreement is assigned pursuant to Section 10.0, Applicant agrees that this indemnification shall continue to apply to SCE and shall apply to the assignee. 14.0 LIMITATION OF LIABILITY SCE shall not be liable for any special, incidental, indirect, or consequential damages, including without limitation, loss of profits or commitments to subcontractors, and any special, incidental, indirect or consequential damages incurred by Applicant. 15.0 WRITTEN NOTICE 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, email, nationally recognized overnight courier, or first class mail, postage prepaid; to the address specified below, or to another address specified in writing by SCE. SCE SCE Offer Manager: Address: City, State, Zip: Fax #: Email: Phone: James Hodge PO Box 800 Rosemead, CA 91770 626 - 302 -6126 James.Hodge @SCE.com (626) 302 -0654 APPLICANT (CUSTOMER OR AUTHORIZED REPRESENTATIVE) Name: Company: Address: City, State, Zip: Fax #: Email: Phone: Kurt Wiemann City of Santa Ana 20 Civic Center Plaza M -21 Santa Ana, CA 92702 Kwiemann @santa - ana.org 714 - 647 -5639 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 otherwise on the Business Day following personal delivery; (b) if mailed, three Business Days after the date the notice is postmarked; (c) if by facsimile or email, 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. 16.0 CONFLICTS BETWEEN TERMS Should a conflict exist between the main body of this Agreement and the documents incorporated by reference, the main body of this Agreement shall CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 6 OF 7 control. Should a conflict exist In the documents Incorporated by reference, the documents shall control in the following order: 1) SCE acceptance letter(s) and Incentive estimate(s) based on solutions approved in the Application; and (2) the Partnership Agreement applicable to Applicant, and (3) Applicant's approved Application(s). Should a conflict exist between an applicable federal, State, or local law, rule, regulation, order or code and this Agreement, the law, rule, regulation, order or code shall control. Varying degrees of stringency among the main body of this Agreement, the documents incorporated by reference, and laws, rules, regulations, orders, or codes are not deemed conflicts, and the most stringent requirement shall control. Each Party shall notify the other Immediately upon the identification of any conflict or inconsistency concerning this Agreement. 17.0 CANCELLATION OF AGREEMENT: SCE may suspend or terminate the Agreement, with cause, upon written notice to the Applicant identified in Section 15 hereof. SCE may suspend or terminate the Agreement upon written notice to the Applicant if funding for the Program is depleted, or If SCE determines suspension or termination of the Agreement is necessary in order to make changes to the related Program or if SCE is ordered by the CPUC to modify or discontinue a Program and /or any agreements related to a Program. 18,0 MISCELLANEOUS This Agreement shall at all times be subject to such changes or modifications by the CPUC as it may from time to time direct in the exercise of its jurisdiction. This Agreement shall be governed and construed in accordance with the laws of the State of California, without regard to its conflict of laws provisions. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect. This Agreement constitutes the entire agreement and understanding between the Parties as to the subject matter of this Agreement and supersedes all prior agreements, representations, writings and discussions between the Parties, whether oral or written, with respect to the subject matter hereof. No amendment, modification or change to this Agreement shall be binding or effective unless expressly set forth in writing and signed by SCE's representative authorized to execute the Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date set forth below 0 Title: Name Printed: Mark Wallenrod APPLICANT CUSTOMER 14UTHORIZED AGENT) By Title: Interim City Manager Name Kevin O'Rourke Printed: RAfi. 1 'I x1113 ATTE1,Vt w C /2ita,,,,ic �� MARIA D. HUIZAR c CLERK OF THE COUNCIL CUSTOUIZEOSOLUTIONS CONTRACT -LOCAL "VFRPi✓iPF ITACID[PIS"TI'I'UTIOPiAL FART Fr RSHIP 7 OF EDISON 2010 — 2012 CUSTOMIZED SOLUTIONS AGREEMENT FOR LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIPS Application Project Name LED Street lighting Retrofit- Scope #4 3-011- 5070 -57- Multi -S,le Service Account # UPN 193 -12- 0500305654 Date Received: 7/27/12 Calculated Approach X SCE Customer Information City of Santa Ana COMPANY NAME (Agency /Institution /Local Government) 20 Civic Center Plaza M -21 Santa Ana /CA 92702 -Multi -Site ADDRESS CITY /STATE ZIP CODE Kurt Wiemann Kwiemann @ santa- ana.org CONTACT NAME Projects Manager TITLE EMAIL ADDRESS 714 - 647 -5639 TELEPHONE NO. Tax StatUS: Corp. Non-Corp, rp. X Exempt, Reason: Government Authorized Agent Information 95- 6000785 FAX NO COMPANY /CORP. FEDERAL TAX ID COMPANY NAME CORPORATE PARENT NAME (if applicable): ADDRESS CITY /STATE ZIP CODE CONTACT NAME EMAIL ADDRESS TITLE TELEPHONE NO. FAX NO. Tax Status: Corp. _ Non -Corp. _ Exempt, Reason: Site Information COMPANY /CORP. FEDERAL TAX ID LED Street Lighting Retrofit - Scopoe #4 SITE NAME SITE I.D.# (if applicable) 1300 W Wilshire Ave, Multi -Site Santa Ana /CA 92704 SITE ADDRESS CITY /STATE ZIP CODE Kurt Wiemann 714 - 647 -5639 3 -011- 5030 -57, Multi -Site SITE CONTACT NAME CONTACT PHONE # SCE ELECTRIC ACCOUNT(S) # CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 1 OF 7 Final Approved Savings and Incentive Estimate SO i SERtP Ft{)t^! r C fe N ; ".. 60 . Exterior LED Street Lighting LT -48371 138,811.00 $15,269.21 Total Approved Savings/Incentive Estimates 138,811.00 0.00 $15,269.21 Incentive Adjustment due to Project Cost Incentive Adjustment due to Project Site Cap Total Estimated Incentive 1 $15,269.21 2010 — 2012 CUSTOMIZED SOLUTIONS AGREEMENT TERMS AND CONDITIONS FOR LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIPS This Customized Solutions Agreement ( "Agreement ") is entered into by Southern California Edison Company ( "SCE ") and the Customer or the Customer's Authorized Agent, as identified on page 1 above (each deemed an "Applicant" for purposes of this Agreement). Applicant agrees to review these terms and conditions. Any implementation of a project hereunder will be deemed to be acceptance by the Applicant of such terms and conditions, and such terms and conditions shall be binding on the Applicant (both Customer and Authorized Agent, if applicable). If these terms and conditions are not acceptable to Applicant, then Applicant must notify SCE and refrain from any implementation of the project, otherwise will proceed at their own risk. SCE and Applicant may be individually referred to as a "Party" and collectively as the "Parties." 1.0 PROJECT DESCRIPTION This Agreement is limited to those projects and /or solutions described in the applicable 2010 -2012 Energy Management Solutions - Incentive Application for Business Customers (together with all forms attached thereto, and referred to herein as the "Application "). As stated in the Application, SCE shall pay incentives to Applicant, or such other party properly authorized to receive payment, in accordance with the terms and conditions of this Agreement. The Customized Solutions Program ( "Program ") is further described in the 2010 Customized Statewide Procedures Manual for Business ( "Program Manual ") and at www.sce.com /customized solutions. 2.0 DOCUMENTS INCORPORATED BY REFERENCE The following documents are hereby Incorporated by reference and made part of this Agreement: (i) Applicant's completed, signed and submitted Application, (ii) SCE acceptance letter(s) based on the energy saving solutions proposed in the Application, and (iii) the agreement (or memorandum of understanding, as applicable) to jointly deliver the 2010 -12 Energy Efficiency Partnership Program applicable to the Parties (the "Partnership Agreement "). CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 2 OF 7 3.0 ELIGIBILITY Program funding is limited and is available on a first -come, first - served basis. Funds will be reserved only upon both SCE's written approval of the Application and SCE's execution of this Agreement. Projects must meet the following requirements to be eligible for payment of Program incentives ( "Incentive(s) "): (1) Project site must be a nonresidential facility located within SCE's service territory; (2) SCE Customers must pay the Public Goods Charge ( "PGC ") on the SCE electric meter where the energy efficient equipment is installed; (3) Projects will be evaluated using the Calculated Approach and /or the Measured Savings Approach (also known as measurement and verification ( "M &V"); (4) Energy savings and demand reduction resulting from the project must be above and beyond baseline energy performance, which include state - mandated codes, federal- mandated codes, industry- accepted performance standards or other baseline energy performance standards as determined by SCE; (5) Projects must meet all other Program requirements, terms and conditions; (6) Applicant certifies that Applicant will not apply for or receive rebates, incentives, or services covered by this Agreement in an amount greater than the total cost of the project or solution(s) (including labor and materials); and (7) The Applicant certifies that the solutions covered by this Agreement have not and will not receive any funds from any other utility, state or local program funded by the PGC surcharge. 4.0 SUBMITTAL REQUIREMENTS FOR PAYMENT Applicant shall submit to SCE the documents described below prior to being eligible for payment of Incentives. Required documents include, but are not limited to: (1) This Agreement, fully executed and with the attached documents referenced in Item 2.0 above; (2) Complete engineering calculations to demonstrate energy savings and documentation, if applicable (including archival diskette, CD, etc.); (3) Schematic drawings and /or manufacturer specification sheets, if applicable; (4) Invoices and /or documentation to support solution costs, at SCE's request; (5) Project Installation Report; (6) Operating Report, if M &V is required; and (7) Any other documents related to the project, project site, solutions, energy savings or otherwise requested by SCE in its sole discretion, in connection with the Program. 5.0 INSPECTIONS Applicant is solely responsible for ensuring that SCE has reasonable access for all inspections, including but not limited to: (1) Pre - installation equipment inspection to examine the existing /baseline equipment and to check the accuracy of Applicant's equipment survey; (2) Post - installation equipment inspection to check installed equipment and to verify accuracy of Applicant's equipment survey; (3) Post - operation inspection to verify energy savings of the solutions after installed equipment has been operating, if requested by SCE; and (4) Inspection for any other Program - related reason that SCE, in its sole discretion, deems necessary. 6.0 REVIEW AND DISCLAIMER SCE'S AND /OR ITS CONSULTANTS' REVIEW OF THE DESIGN, CONSTRUCTION, OPERATION OR MAINTENANCE OF THE PROJECT OR ENERGY EFFICIENCY SOLUTIONS SHALL NOT CONSTITUTE ANY REPRESENTATION AS TO THE ECONOMIC OR TECHNICAL FEASIBILITY, OPERATIONAL CAPABILITY, OR RELIABILITY OF THE PROJECT OR SOLUTIONS, NOR SHALL THE APPLICANT, IN ANY WAY, MAKE SUCH A REPRESENTATION TO A THIRD PARTY. APPLICANT IS SOLELY RESPONSIBLE FOR THE ECONOMIC AND TECHNICAL FEASIBILITY, CONSTRUCTION, OPERATIONAL CAPABILITY AND RELIABILITY OF APPLICANT'S PROJECT AND SOLUTIONS. SCE MAKES NO WARRANTY, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, USE OR APPLICATION. 7.0 PAYMENTS Payment of Incentives will be made only after all Program requirements are met by Applicant to SCE's sole satisfaction. Payment of Incentives will be made as designated by Customer in Section 8 of the Application. 7.1 SCE retains sole discretion to determine the appropriate baseline values and energy savings calculations used to determine Incentive payments. Incentives shall only be paid on projects that exceed the baseline performance standards applicable when this Agreement is CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 3 OF 7 signed. SCE reserves the right to modify or cancel the Incentive amount if the actual solution installed differs from the installation as set forth in this Agreement. 7.2 The total Incentive payment under the Calculated Savings Approach or Measured Savings Approach shall not exceed the total Incentive in the Final Approved Savings Estimate (as presented on Page 2 of this Agreement). However, projects may (at the discretion of SCE) be eligible for Incentive payments in excess of the Final Approved Savings Estimate if the project results in: (a) increased actual energy savings resulting from the installation of a greater quantity of the approved solutions (as outlined in SCE's acceptance letter); (b) increased actual energy savings resulting from greater efficiencies than estimated (as outlined in the SCE acceptance letter); and /or (c) greater actual project costs than originally estimated. Partnership Incentive levels and Incentive caps shall apply according to the terms of the applicable Partnership Agreement. The total Incentive payment shall not exceed the total project cost as defined in the Program Manual. 7.3 Energy savings for which Incentives are paid cannot exceed the actual electric usage for each SCE Customer service account for which Incentives are being requested. Non -SCE supply, such as cogeneration or deliveries from another commodity supplier, does not qualify as usage from SCE (with the exception of Direct Access customers or customers paying departing load fees for which SCE collects PGC surcharges). 7.4 SCE will make the applicable Incentive payment to the designated payee, in one or more installments, only after all required and /or requested documents have been submitted to, and approved by, SCE, and the appropriate inspection(s) of the project or project site have been completed in accordance with the Program rules set forth in the Program Manual. 7.5 Except as provided below, all projects and /or solutions must be completely installed and fully operational one year from SCE's written project Application approval date to be eligible for Incentive payments. SCE reserves the right to cease making Incentive payment(s), require the return of the total or prorated Incentive payments, and /or terminate this Agreement if the project is not completely installed and fully operational by the applicable date as indicated above, unless an installation extension is granted by SCE. 8.0 PAYMENT DISQUALIFICATION Any Incentives received by Applicant shall be repaid to SCE, in whole or in part, as follows: 8.1 If Customer fails to pay the PGC surcharge throughout the Term of this Agreement. In this event, the total estimated amount of the Incentives shall be prorated and any Incentive payment shall be based on the energy savings that occur during the payment of the PGC surcharge. 8.2 If (1) Customer does not provide SCE with 100% of the related energy benefits specified in this Agreement for the life of the product or for a period of five (5) years from receipt of the Incentive, whichever is less, or (2) the energy benefit to SCE ceases in any way, including but not limited to Customer and /or the project site ceasing to receive electricity from SCE, the solution, equipment and /or project ceasing to function, or Customer ceasing the use of the equipment, solution or project site. Applicant shall refund to SCE a prorated amount of the Incentive dollars based on the actual period of time for which Customer provided the energy benefit as an SCE customer. 8.3 Applicant shall repay any Incentive amounts due to SCE within thirty (30) calendar days of notification by SCE. Repayment is required In accordance with Sections 8.1 and 8.2 above. CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 4 OF 7 SCE shall be entitled to offset against payments owed to Applicant any amount due to SCE that remains unpaid forty (40) calendar days after SCE's written demand for payment. 9.0 TERM AND TERMINATION The term of this Agreement shall commence on the last date that a Party executes this Agreement and shall terminate no later than five (5) years from SCE's written project Installation Report approval date, unless terminated earlier pursuant to this Agreement ( "Term "). 10.0 ASSIGNMENT SCE may assign this Agreement, or its rights and obligations hereunder, directly or indirectly, without prior written consent, provided SCE remains obligated for payments incurred prior to the assignment. Applicant may not assign its rights or delegate its duties without the prior written consent of SCE, which shall not be unreasonably withheld or delayed. If an assignment is requested, Applicant is obligated to provide additional information if requested by SCE. 11.0 PERMITS AND LICENSES Applicant, at its own expense, shall obtain and maintain and cause its contractors and /or subcontractors to obtain and maintain licenses and permits required by federal, state, local, or other relevant governing or regulatory bodies needed to perform its work. Any failure by Applicant or its contractors and /or subcontractors to maintain necessary licenses and permits constitutes a material breach of Applicant's obligations under this Agreement. 12.0 ADVERTISING, MARKETING AND USE OF SCE'S NAME Applicant shall not use SCE's corporate name, trademark, trade name, logo, identity or any affiliation for any reason, including soliciting customers to participate in the project, without SCE's prior written consent. Applicant shall make no representations to its customers on behalf of SCE. 13.0 INDEMNIFICATION To the extent Applicant has (i) executed a Partnership Agreement with SCE and is a direct party thereto, and (ii) such Partnership Agreement contains indemnity provisions covering Applicant's performance under the Program and this Agreement, then such Indemnity provisions shall apply to this Agreement and the remainder of this Section 13 shall have no force and effect. For all other Applicants (including, but not limited to, program participants, contractors, consultants, and others who are not direct parties to a Partnership Agreement with SCE containing such indemnity provisions), the following shall apply: 13.1 Applicant shall indemnify, defend and hold harmless, and release SCE, its affiliates, subsidiaries, parent companies, officers, directors, agents and employees, from and against all claims, demands, losses, damages, costs, expenses, and liability (legal, contractual, or otherwise), which arise from or are in any way connected with any: (i) injury to or death of persons, including but not limited to employees of SCE or Applicant; (ii) injury to property or other interests of SCE, Applicant, or any third party;(iii) violation of local, state, or federal common law, statute, or regulation, including but not limited to environmental laws or regulations; or (iv) strict liability imposed by any law or regulation; so long as such injury, violation, or strict liability (as set forth in (i) - (iv) above) arises from or is in any way connected with Applicant's performance of, or failure to perform, this Agreement, however caused, regardless of any strict liability or negligence of SCE whether active or passive, excepting only such loss, damage, cost, expense, liability, strict liability, or violation of law or regulation that is caused by the sole negligence or willful misconduct of SCE, its officers, managers or employees. 13.2 Applicant acknowledges that any claims, demands, losses, damages, costs, expenses, and legal liability that arise out of, result from, or are in any way connected with the release or spill of any legally designated hazardous material or waste as a result of the work performed under this Agreement are expressly within the scope of this indemnity, and that the costs, expenses, and legal liability for environmental investigations, monitoring, containment, abatement, removal, repair, cleanup, restoration, remedial work, penalties, and fines arising CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 5 OF 7 from strict liability, or violation of any local, state, or federal law or regulation, attorney's fees, disbursements, and other response costs incurred as a result of such releases or spills are expressly within the scope of this indemnity. 13.3 Applicant shall, on SCE's request, defend any action, claim or suit asserting a claim that may be covered by this indemnity. Applicant shall pay all costs and expenses that may be incurred by SCE in enforcing this indemnity, including reasonable attorney's fees. This indemnity shall survive the termination of this Agreement for any reason. 13.4 If this Agreement is assigned pursuant to Section 10.0, Applicant agrees that this indemnification shall continue to apply to SCE and shall apply to the assignee. 14.0 LIMITATION OF LIABILITY SCE shall not be liable for any special, incidental, indirect, or consequential damages, including without limitation, loss of profits or commitments to subcontractors, and any special, incidental, indirect or consequential damages incurred by Applicant. 15.0 WRITTEN NOTICE 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, email, nationally recognized overnight courier, or first class mail, postage prepaid; to the address specified below, or to another address specified in writing by SCE. SCE SCE Offer Manager: Address: City, State, Zip: Fax #: Email: Phone: James Hodge PO Box 800 Rosemead, CA 91770 626- 302 -6126 James.Hodge @SCE.com (626) 302 -0654 APPLICANT (CUSTOMER OR AUTHORIZED REPRESENTATIVE) Name: Company: Address: City, State, Zip: Fax #: Email: Phone: Kurt Wiemann City of Santa Ana 20 Civic Center Plaza M -21 Santa Ana, CA 92702 Kwiemann @santa - ana.org 714 - 647 -5639 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 otherwise on the Business Day following personal delivery; (b) if mailed, three Business Days after the date the notice is postmarked; (c) if by facsimile or email, 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. 16.0 CONFLICTS BETWEEN TERMS Should a conflict exist between the main body of this Agreement and the documents incorporated by reference, the main body of this Agreement shall CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 6 OF 7 control. Should a conflict exist In the documents Incorporated by reference, the documents shall control in the following order: 1) SCE acceptance letter(s) and Incentive estimate(s) based on solutions approved in the Application; and (2) the Partnership Agreement applicable to Applicant, and (3) Applicant's approved Application(s). Should a conflict exist between an applicable federal, State, or local law, rule, regulation, order or code and this Agreement, the law, rule, regulation, order or code shall control. Varying degrees of stringency among the main body of this Agreement, the documents incorporated by reference, and laws, rules, regulations, orders, or codes are not deemed conflicts, and the most stringent requirement shall control. Each Party shall notify the other Immediately upon the identification of any conflict or inconsistency concerning this Agreement. 17.0 CANCELLATION OF AGREEMENT: SCE may suspend or terminate the Agreement, with cause, upon written notice to the Applicant identified in Section 15 hereof. SCE may suspend or terminate the Agreement upon written notice to the Applicant if funding for the Program is depleted, or If SCE determines suspension or termination of the Agreement is necessary in order to make changes to the related Program or if SCE is ordered by the CPUC to modify or discontinue a Program and /or any agreements related to a Program. 18,0 MISCELLANEOUS This Agreement shall at all times be subject to such changes or modifications by the CPUC as it may from time to time direct in the exercise of its jurisdiction. This Agreement shall be governed and construed in accordance with the laws of the State of California, without regard to its conflict of laws provisions. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect. This Agreement constitutes the entire agreement and understanding between the Parties as to the subject matter of this Agreement and supersedes all prior agreements, representations, writings and discussions between the Parties, whether oral or written, with respect to the subject matter hereof. No amendment, modification or change to this Agreement shall be binding or effective unless expressly set forth in writing and signed by SCE's representative authorized to execute the Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date set forth below 0 Title: Name Printed: Mark Wallenrod APPLICANT CUSTOMER 14UTHORIZED AGENT) By Title: Interim City Manager Name Kevin O'Rourke Printed: RAfi. 1 'I x1113 ATTE1,Vt w C /2ita,,,,ic �� MARIA D. HUIZAR c CLERK OF THE COUNCIL CUSTOUIZEOSOLUTIONS CONTRACT -LOCAL "VFRPi✓iPF ITACID[PIS"TI'I'UTIOPiAL FART Fr RSHIP 7 OF JI EDSON Ak IDrO:V .WfOk[kT)LMAL- Ca�v. 2010 — 2012 CUSTOMIZED SOLUTIONS AGREEMENT FOR LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIPS Application Project Name LED Street lighting Retrofit- Scope #4 7-011- 50]0 -57 -Multi -Site Service Account # UPN 193 -12- 0500305654 7/27/12 Date Received: Calculated Approach X SCE Customer Information City of Santa Ana COMPANY NAME (Agency /Institution /Local Government) 20 Civic Center Plaza M -21 Santa Ana /CA 92702 -Multi -Site ADDRESS CITY /STATE ZIP CODE Kurt Wiemann Kwiemann @santa- ana.org CONTACT NAME EMAIL ADDRESS Projects Manager 714 - 647 -5639 TITLE TELEPHONE NO. FAX NO Tax Status: X Corp. Non -Corp. Exempt, Reason: Government 95- 6000785 COMPANY /CORP. FEDERAL TAX ID Authorized Agent COMPANY NAME CORPORATE PARENT NAME (if applicable): ADDRESS CITY /STATE ZIP CODE CONTACT NAME EMAIL ADDRESS TITLE TELEPHONE NO. FAX NO. Tax Status: Corp. Non -Corp. _ Exempt, Reason: COMPANY /CORP. FEDERAL TAX ID Site Information LED Street Lighting Retrofit - Scopoe #4 SITE NAME SITE I.D.# (if applicable) 1300 W Wilshire Ave, Multi -Site Santa Ana /CA 92704 SITE ADDRESS Kurt Wiemann SITE CONTACT NAME CITY /STATE _ 714- 647 -5639 3 -011- 5030 -57, Multi -Site CONTACT PHONE # SCE ELECTRIC ACCOUNT(S) # CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP ZIP CODE 1 OF Final Approved Savings and Incentive Estimate Sdt C1Tto[VS ©ESCF7tRGH�t.' ..,Golfe... _ � 8, 4S)31 $1[tbve.dtxlt Y Exterior LED Street Lighting LT -48371 138,811.00 $15,269.21 Total Approved Savings/incentive Estimates 138,811.00 0.00 $15,269.21 Incentive Adjustment due to Project Cost Incentive Adjustment due to Project Site Ca Total Estimated Incentive $15.269.21 2010 — 2012 CUSTOMIZED SOLUTIONS AGREEMENT TERMS AND CONDITIONS FOR LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIPS This Customized Solutions Agreement ( "Agreement ") is entered into by Southern California Edison Company ( "SCE ") and the Customer or the Customer's Authorized Agent, as identified on page 1 above (each deemed an "Applicant" for purposes of this Agreement). Applicant agrees to review these terms and conditions. Any implementation of a project hereunder will be deemed to be acceptance by the Applicant of such terms and conditions, and such terms and conditions shall be binding on the Applicant (both Customer and Authorized Agent, if applicable). If these terms and conditions are not acceptable to Applicant, then Applicant must notify SCE and refrain from any implementation of the project, otherwise will proceed at their own risk. SCE and Applicant may be individually referred to as a "Party" and collectively as the "Parties." 1.0 PROJECT DESCRIPTION This Agreement is limited to those projects and /or solutions described in the applicable 2010 -2012 Energy Management Solutions - Incentive Application for Business Customers (together with all forms attached thereto, and referred to herein as the "Application "). As stated in the Application, SCE shall pay incentives to Applicant, or such other party properly authorized to receive payment, in accordance with the terms and conditions of this Agreement. The Customized Solutions Program ( "Program ") is further described in the 2010 Customized Statewide Procedures Manual for Business ( "Program Manual ") and at www.sce.com /customized solutions. 2.0 DOCUMENTS INCORPORATED BY REFERENCE The following documents are hereby Incorporated by reference and made part of this Agreement: (i) Applicant's completed, signed and submitted Application, (ii) SCE acceptance letter(s) based on the energy saving solutions proposed in the Application, and (iii) the agreement (or memorandum of understanding, as applicable) to jointly deliver the 2010 -12 Energy Efficiency Partnership Program applicable to the Parties (the "Partnership Agreement "). CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 2 OF 7 3.0 ELIGIBILITY Program funding is limited and is available on a first -come, first - served basis. Funds will be reserved only upon both SCE's written approval of the Application and SCE's execution of this Agreement. Projects must meet the following requirements to be eligible for payment of Program incentives ( "Incentive(s) "): (1) Project site must be a nonresidential facility located within SCE's service territory; (2) SCE Customers must pay the Public Goods Charge ( "PGC ") on the SCE electric meter where the energy efficient equipment is installed; (3) Projects will be evaluated using the Calculated Approach and /or the Measured Savings Approach (also known as measurement and verification ( "M &V"); (4) Energy savings and demand reduction resulting from the project must be above and beyond baseline energy performance, which include state - mandated codes, federal- mandated codes, industry- accepted performance standards or other baseline energy performance standards as determined by SCE; (5) Projects must meet all other Program requirements, terms and conditions; (6) Applicant certifies that Applicant will not apply for or receive rebates, incentives, or services covered by this Agreement in an amount greater than the total cost of the project or solution(s) (including labor and materials); and (7) The Applicant certifies that the solutions covered by this Agreement have not and will not receive any funds from any other utility, state or local program funded by the PGC surcharge. 4.0 SUBMITTAL REQUIREMENTS FOR PAYMENT Applicant shall submit to SCE the documents described below prior to being eligible for payment of Incentives. Required documents include, but are not limited to: (1) This Agreement, fully executed and with the attached documents referenced in Item 2.0 above; (2) Complete engineering calculations to demonstrate energy savings and documentation, if applicable (including archival diskette, CD, etc.); (3) Schematic drawings and /or manufacturer specification sheets, if applicable; (4) Invoices and /or documentation to support solution costs, at SCE's request; (5) Project Installation Report; (6) Operating Report, if M &V is required; and (7) Any other documents related to the project, project site, solutions, energy savings or otherwise requested by SCE in its sole discretion, in connection with the Program. 5.0 INSPECTIONS Applicant is solely responsible for ensuring that SCE has reasonable access for all inspections, including but not limited to: (1) Pre - installation equipment inspection to examine the existing /baseline equipment and to check the accuracy of Applicant's equipment survey; (2) Post - installation equipment inspection to check installed equipment and to verify accuracy of Applicant's equipment survey; (3) Post - operation inspection to verify energy savings of the solutions after installed equipment has been operating, if requested by SCE; and (4) Inspection for any other Program - related reason that SCE, in its sole discretion, deems necessary. 6.0 REVIEW AND DISCLAIMER SCE'S AND /OR ITS CONSULTANTS' REVIEW OF THE DESIGN, CONSTRUCTION, OPERATION OR MAINTENANCE OF THE PROJECT OR ENERGY EFFICIENCY SOLUTIONS SHALL NOT CONSTITUTE ANY REPRESENTATION AS TO THE ECONOMIC OR TECHNICAL FEASIBILITY, OPERATIONAL CAPABILITY, OR RELIABILITY OF THE PROJECT OR SOLUTIONS, NOR SHALL THE APPLICANT, IN ANY WAY, MAKE SUCH A REPRESENTATION TO A THIRD PARTY. APPLICANT IS SOLELY RESPONSIBLE FOR THE ECONOMIC AND TECHNICAL FEASIBILITY, CONSTRUCTION, OPERATIONAL CAPABILITY AND RELIABILITY OF APPLICANT'S PROJECT AND SOLUTIONS. SCE MAKES NO WARRANTY, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, USE OR APPLICATION. 7.0 PAYMENTS Payment of Incentives will be made only after all Program requirements are met by Applicant to SCE's sole satisfaction. Payment of Incentives will be made as designated by Customer in Section 8 of the Application. 7.1 SCE retains sole discretion to determine the appropriate baseline values and energy savings calculations used to determine Incentive payments. Incentives shall only be paid on projects that exceed the baseline performance standards applicable when this Agreement is CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 3 OF 7 signed. SCE reserves the right to modify or cancel the Incentive amount if the actual solution installed differs from the installation as set forth in this Agreement. 7.2 The total Incentive payment under the Calculated Savings Approach or Measured Savings Approach shall not exceed the total Incentive in the Final Approved Savings Estimate (as presented on Page 2 of this Agreement). However, projects may (at the discretion of SCE) be eligible for Incentive payments in excess of the Final Approved Savings Estimate if the project results in: (a) increased actual energy savings resulting from the installation of a greater quantity of the approved solutions (as outlined in SCE's acceptance letter); (b) increased actual energy savings resulting from greater efficiencies than estimated (as outlined in the SCE acceptance letter); and /or (c) greater actual project costs than originally estimated. Partnership Incentive levels and Incentive caps shall apply according to the terms of the applicable Partnership Agreement. The total Incentive payment shall not exceed the total project cost as defined in the Program Manual. 7.3 Energy savings for which Incentives are paid cannot exceed the actual electric usage for each SCE Customer service account for which Incentives are being requested. Non -SCE supply, such as cogeneration or deliveries from another commodity supplier, does not qualify as usage from SCE (with the exception of Direct Access customers or customers paying departing load fees for which SCE collects PGC surcharges). 7.4 SCE will make the applicable Incentive payment to the designated payee, in one or more installments, only after all required and /or requested documents have been submitted to, and approved by, SCE, and the appropriate inspection(s) of the project or project site have been completed in accordance with the Program rules set forth in the Program Manual. 7.5 Except as provided below, all projects and /or solutions must be completely installed and fully operational one year from SCE's written project Application approval date to be eligible for Incentive payments. SCE reserves the right to cease making Incentive payment(s), require the return of the total or prorated Incentive payments, and /or terminate this Agreement if the project is not completely installed and fully operational by the applicable date as indicated above, unless an installation extension is granted by SCE. 8.0 PAYMENT DISQUALIFICATION Any Incentives received by Applicant shall be repaid to SCE, in whole or in part, as follows: 8.1 If Customer fails to pay the PGC surcharge throughout the Term of this Agreement. In this event, the total estimated amount of the Incentives shall be prorated and any Incentive payment shall be based on the energy savings that occur during the payment of the PGC surcharge. 8.2 If (1) Customer does not provide SCE with 100% of the related energy benefits specified in this Agreement for the life of the product or for a period of five (5) years from receipt of the Incentive, whichever is less, or (2) the energy benefit to SCE ceases in any way, including but not limited to Customer and /or the project site ceasing to receive electricity from SCE, the solution, equipment and /or project ceasing to function, or Customer ceasing the use of the equipment, solution or project site. Applicant shall refund to SCE a prorated amount of the Incentive dollars based on the actual period of time for which Customer provided the energy benefit as an SCE customer. 8.3 Applicant shall repay any Incentive amounts due to SCE within thirty (30) calendar days of notification by SCE. Repayment is required In accordance with Sections 8.1 and 8.2 above. CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 4 OF 7 SCE shall be entitled to offset against payments owed to Applicant any amount due to SCE that remains unpaid forty (40) calendar days after SCE's written demand for payment. 9.0 TERM AND TERMINATION The term of this Agreement shall commence on the last date that a Party executes this Agreement and shall terminate no later than five (5) years from SCE's written project Installation Report approval date, unless terminated earlier pursuant to this Agreement ( "Term "). 10.0 ASSIGNMENT SCE may assign this Agreement, or its rights and obligations hereunder, directly or indirectly, without prior written consent, provided SCE remains obligated for payments incurred prior to the assignment. Applicant may not assign its rights or delegate its duties without the prior written consent of SCE, which shall not be unreasonably withheld or delayed. If an assignment is requested, Applicant is obligated to provide additional information if requested by SCE. 11.0 PERMITS AND LICENSES Applicant, at its own expense, shall obtain and maintain and cause its contractors and /or subcontractors to obtain and maintain licenses and permits required by federal, state, local, or other relevant governing or regulatory bodies needed to perform its work. Any failure by Applicant or its contractors and /or subcontractors to maintain necessary licenses and permits constitutes a material breach of Applicant's obligations under this Agreement. 12.0 ADVERTISING, MARKETING AND USE OF SCE'S NAME Applicant shall not use SCE's corporate name, trademark, trade name, logo, identity or any affiliation for any reason, including soliciting customers to participate in the project, without SCE's prior written consent. Applicant shall make no representations to its customers on behalf of SCE. 13.0 INDEMNIFICATION To the extent Applicant has (i) executed a Partnership Agreement with SCE and is a direct party thereto, and (ii) such Partnership Agreement contains indemnity provisions covering Applicant's performance under the Program and this Agreement, then such Indemnity provisions shall apply to this Agreement and the remainder of this Section 13 shall have no force and effect. For all other Applicants (including, but not limited to, program participants, contractors, consultants, and others who are not direct parties to a Partnership Agreement with SCE containing such indemnity provisions), the following shall apply: 13.1 Applicant shall indemnify, defend and hold harmless, and release SCE, its affiliates, subsidiaries, parent companies, officers, directors, agents and employees, from and against all claims, demands, losses, damages, costs, expenses, and liability (legal, contractual, or otherwise), which arise from or are in any way connected with any: (i) injury to or death of persons, including but not limited to employees of SCE or Applicant; (ii) injury to property or other interests of SCE, Applicant, or any third party;(iii) violation of local, state, or federal common law, statute, or regulation, including but not limited to environmental laws or regulations; or (iv) strict liability imposed by any law or regulation; so long as such injury, violation, or strict liability (as set forth in (i) - (iv) above) arises from or is in any way connected with Applicant's performance of, or failure to perform, this Agreement, however caused, regardless of any strict liability or negligence of SCE whether active or passive, excepting only such loss, damage, cost, expense, liability, strict liability, or violation of law or regulation that is caused by the sole negligence or willful misconduct of SCE, its officers, managers or employees. 13.2 Applicant acknowledges that any claims, demands, losses, damages, costs, expenses, and legal liability that arise out of, result from, or are in any way connected with the release or spill of any legally designated hazardous material or waste as a result of the work performed under this Agreement are expressly within the scope of this indemnity, and that the costs, expenses, and legal liability for environmental investigations, monitoring, containment, abatement, removal, repair, cleanup, restoration, remedial work, penalties, and fines arising CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 5 OF 7 from strict liability, or violation of any local, state, or federal law or regulation, attorney's fees, disbursements, and other response costs incurred as a result of such releases or spills are expressly within the scope of this indemnity. 13.3 Applicant shall, on SCE's request, defend any action, claim or suit asserting a claim that may be covered by this indemnity. Applicant shall pay all costs and expenses that may be incurred by SCE in enforcing this indemnity, including reasonable attorney's fees. This indemnity shall survive the termination of this Agreement for any reason. 13.4 If this Agreement is assigned pursuant to Section 10.0, Applicant agrees that this indemnification shall continue to apply to SCE and shall apply to the assignee. 14.0 LIMITATION OF LIABILITY SCE shall not be liable for any special, incidental, indirect, or consequential damages, including without limitation, loss of profits or commitments to subcontractors, and any special, incidental, indirect or consequential damages incurred by Applicant. 15.0 WRITTEN NOTICE 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, email, nationally recognized overnight courier, or first class mail, postage prepaid; to the address specified below, or to another address specified in writing by SCE. SCE SCE Offer Manager: Address: City, State, Zip: Fax #: Email: Phone: James Hodge PO Box 800 Rosemead, CA 91770 626- 302 -6126 James. Hodge @SCE.com (626) 302 -0654 APPLICANT (CUSTOMER OR AUTHORIZED REPRESENTATIVE) Name: Company: Address: City, State, Zip: Fax #: Email: Phone: Kurt Wiemann City of Santa Ana 20 Civic Center Plaza M -21 Santa Ana, CA 92702 Kwiemann @santa- ana.org 714- 647 -5639 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 otherwise on the Business Day following personal delivery; (b) if mailed, three Business Days after the date the notice is postmarked; (c) if by facsimile or email, 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. 16.0 CONFLICTS BETWEEN TERMS Should a conflict exist between the main body of this Agreement and the documents incorporated by reference, the main body of this Agreement shall CUSTOMIZED SOLUTIONS CONTRACT - LOCAL GOVERNMENT AND INSTITUTIONAL PARTNERSHIP 6 OF 7 control. Should a conflict exist In the documents Incorporated by reference, the documents shall control in the following order: 1) SCE acceptance letter(s) and Incentive estimate(s) based on solutions approved in the Application; and (2) the Partnership Agreement applicable to Applicant, and (3) Applicant's approved Application(s). Should a conflict exist between an applicable federal, State, or local law, rule, regulation, order or code and this Agreement, the law, rule, regulation, order or code shall control. Varying degrees of stringency among the main body of this Agreement, the documents incorporated by reference, and laws, rules, regulations, orders, or codes are not deemed conflicts, and the most stringent requirement shall control. Each Party shall notify the other Immediately upon the identification of any conflict or inconsistency concerning this Agreement. 17.0 CANCELLATION OF AGREEMENT: SCE may suspend or terminate the Agreement, with cause, upon written notice to the Applicant identified in Section 15 hereof. SCE may suspend or terminate the Agreement upon written notice to the Applicant if funding for the Program is depleted, or If SCE determines suspension or termination of the Agreement is necessary in order to make changes to the related Program or if SCE is ordered by the CPUC to modify or discontinue a Program and /or any agreements related to a Program. 18,0 MISCELLANEOUS This Agreement shall at all times be subject to such changes or modifications by the CPUC as it may from time to time direct in the exercise of its jurisdiction. This Agreement shall be governed and construed in accordance with the laws of the State of California, without regard to its conflict of laws provisions. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect. This Agreement constitutes the entire agreement and understanding between the Parties as to the subject matter of this Agreement and supersedes all prior agreements, representations, writings and discussions between the Parties, whether oral or written, with respect to the subject matter hereof. No amendment, modification or change to this Agreement shall be binding or effective unless expressly set forth in writing and signed by SCE's representative authorized to execute the Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date set forth below 0 Title: Name Printed: Mark Wallenrod APPLICANT CUSTOMER 14UTHORIZED AGENT) By Title: Interim City Manager Name Kevin O'Rourke Printed: RAfi. 1 'I x1113 ATTE1,Vt w C /2ita,,,,ic �� MARIA D. HUIZAR c CLERK OF THE COUNCIL CUSTOUIZEOSOLUTIONS CONTRACT -LOCAL "VFRPi✓iPF ITACID[PIS"TI'I'UTIOPiAL FART Fr RSHIP 7 OF SOVID tux c,11r0R%t" Energy Management Solutions Incentives E D I SON Application for'Business Customers 2010 - 12 Customized Installation Report DIRECTIONS: After your project is installed and operational, input the project installation commencement and completion dates in the fields provided. Review the information from your Application Approval Letter. If nothing has changed, and the information in Sections 4 and 5 is correct, complete and sign Section 9 on page 2 of this Installation Report (IR) Form and submit both pages to SCE atone of the addresses below. If any information in Section 4 or 5 differs from your Application Approval Letter, use Section 4and/or Section 5 on page 2 of this IR Form to indicate the change. Then, mark the appropriate check box in section 9, sign and return both pages to SCE. Business Incentives For overnight delivery: Fax: 626 -633 -3243 Southern California Edison 6010 N. Irwindale Ave. E -mail: Businesslncentives @sce.com P.O. Box 800 Irwindale, CA 91702 Questions? Call 800 -736 -4777 Rosemead, CA 91770 -0800 UPN #: 193 -12- 0500305654 SA #: 3- 011 - 5030 -57, Multi -Site Customer Name: City of Santa Ana Authorized Agent: Project Name: LED Street Lighting Retrofit - Scope #4 Installation Commencement Date: (Date the project installation was started. ) Installation Completion Date: (Date that project installation was completed and commissioned.) Section 4) Customized Solutions Line #�Sa�act� ,_ r)escr�ptron.f4t? 1 LT48371 Exterior Street LED Lighting i = 3 4 i { Note: If submitting more than 5 Solutions complete and attach the Customized Solution page from the Multiple SiteiSolution Worksheetatwwwsce.com/solutions, Section • • ulatealc d Baseline Installed Solution # Usage (kWh) Usage (kWh) arrilz45 Energy Savings (kWh) � Incentive Energy Rate ($ /kWh) i; Incentive ($) 1 213,679.0 74,868.0 138,811.0 $ 0.11 $ 15,269.21 2_ $ $ — 3 $ $ -- -4 $ $ 5 - L - - - -(— $ -- L $ Total Project Cost ($) $102,400.00 Calculated Energy Savings Totals 138,811.0 Calculated Savings Incentive 15,269.21 Section I Demand Reduction Calculated Baseline Installed On -Peak Peak Demand Solution On -Peak On -Peak Demand Reduction On -Peak Demand Reduction # From above Demand (KW) Demand (KW) Reduction (KW) Incentive ($) 1 $ M 2 $ 3 4 -- . - - - -! - -- -- — $ $ NOTE: For projects requiring M &V, attach any required — baseline or post - installation measurements and analysis, as 5 $ specified in your approved M &V plan. January 1, 2010 Line! 5 fitttorr odd Ab , j 3 3 4 �. I i Note: If submitting more than 5 Solutions complete UPN # 193 -12- 0500305654 SA # 3- 011 - 5030 -57, Multi -Site the Customized Solution page of the Multiple Site /Solution Worksheet at www.sce.com /solutions, Calculated Energy Savings Totals Calculated Savings Incentive Calculated Baseline Installed On -Peak Peak Demand Solution On -Peak On -Peak Demand Reduction #from above Demand (KW) Demand (KW) Reduction (KW) Incentive ($) 1 I i I 2 Total Project Cost ($) On -Peak Demand Reduction 3 4 5 t: ror projects requiring mtsv, attacn any regwrea Daseune or post- +nstauaoon measurements ano analysis, as speaneo in your approves M &v plan. kW O No changes to the proposed solutions have been made since the Project Application Review and Approval and the Authorized agent verifies that the Application approved savings calculations are correct. O Due to changes to the proposed measures, appropriate adjustments in the savings calculations have been made. For measures with changes made during installation, use this section, and Sections 4 & 5 on page 2, to calculate the revised installed energy usage, energy savings, peak demand reduction, and incentives. Attach the appropriate calculation backup: the output from the Estimation Software, Calculate Energy Savings Total or the calculation sheets that document the engineering calculations. (Customer or Authorized Agent, the undersigned hereby certifies that the Energy Efficiency Solutions have been completely installed, functionally tested, and proven capable of operating and being maintained to perform in conformity with their design intent. The installation date of operation of the Energy Efficiency Solutions and any required monitoring data collection per approved M &V plan, are also certified. Signature Name (please print) Title Date January 1, 2010 2 Calculated Baseline Installed Energy Incentive Energy Solution # usage (kWh) Usage (kWh) Savings (kWh) Rate ($/kWh) Incentive ($) 2 3 5 Calculated Energy Savings Totals Calculated Savings Incentive Calculated Baseline Installed On -Peak Peak Demand Solution On -Peak On -Peak Demand Reduction #from above Demand (KW) Demand (KW) Reduction (KW) Incentive ($) 1 I i I 2 Total Project Cost ($) On -Peak Demand Reduction 3 4 5 t: ror projects requiring mtsv, attacn any regwrea Daseune or post- +nstauaoon measurements ano analysis, as speaneo in your approves M &v plan. kW O No changes to the proposed solutions have been made since the Project Application Review and Approval and the Authorized agent verifies that the Application approved savings calculations are correct. O Due to changes to the proposed measures, appropriate adjustments in the savings calculations have been made. For measures with changes made during installation, use this section, and Sections 4 & 5 on page 2, to calculate the revised installed energy usage, energy savings, peak demand reduction, and incentives. Attach the appropriate calculation backup: the output from the Estimation Software, Calculate Energy Savings Total or the calculation sheets that document the engineering calculations. (Customer or Authorized Agent, the undersigned hereby certifies that the Energy Efficiency Solutions have been completely installed, functionally tested, and proven capable of operating and being maintained to perform in conformity with their design intent. The installation date of operation of the Energy Efficiency Solutions and any required monitoring data collection per approved M &V plan, are also certified. Signature Name (please print) Title Date January 1, 2010 2 Customized Solutions Agreement Instructions Project # SIGN AND RETURN AGREEMENTS Sign and return both original Customized Solutions Agreements. One original will be returned to you. Important Reminder. Funds will be reserved only upon SCE's receipt of the fully executed Agreement. Mail to: Business Incentives Southern California Edison P.O. Box 800 Rosemead, CA 91770 -0800 2 INDICATE PAYMENT INFORMATION Please confirm address for the incentive payment. Company: Attention: (Name to be printed on check, use only if required) Address: City: State: Zip: Print Name: Title: Authorizing Signature: Date: 3 UTILITY BILL CREDIT OPTION You have the option to credit the incentive to your service account. Incentive can only be applied to the service account/utility bill of host customer. 4 W9 & CA590 FORMS Please sign and return the W9 & CA590. QUESTIONS? Please call (800) 736 -4777 or e-mail Business Incentives @sce.com SOUTHEW% CALIFORNIA EDISON' P.O. Box 800 Rosemead, CA 91770 Form W'9 Request for Taxpayer Give Form to the (Rev. December 2011) Identification Number and Certification requester. Do not Department of the Treasury entities, it is your employer identification number (EIN). If you do not have a number, see How to get a send to the IRS. Internal Revenue Service TIN on page 3. Name (as shown on your income tax return) Note. If the account is in more than one name, see the chart on page 4 for guidelines on whose N d m CO Business name /disregarded entity name, if different from above IT-1 ITT —r °' C Check appropriate box for federal tax classification: ° ❑ IndividuaVsole proprietor C Corporation S Corporation p p ❑ ❑ p ❑ Partnership ❑ Trust/estate T" ❑ Limited liability company. Enter the tax classification (C =C corporation, S =S corporation, P= partnership) 11- ❑ Exempt payee ° 2 --------------------------------- r H - c a ° ❑ other (see instructions) ► - U Address (number, street, and apt. or suite no.) Requester's name and address (optional) N Q m City, state, and ZIP code a� List account number(s) here (optional) RiOLU I axpayer mentlricatlon Numoer (I IN) Enter your TIN in the appropriate box. The TIN provided must match the name given on the "Name" line I Social security number to avoid backup withholding. For individuals, this is your social security number However, for a resident alien, sole proprietor, or disregarded entity, see the Part I instructions on n page 3. For other FM-M-1 entities, it is your employer identification number (EIN). If you do not have a number, see How to get a TIN on page 3. Note. If the account is in more than one name, see the chart on page 4 for guidelines on whose Employer identification number number to enter. IT-1 ITT —r Under penalties of perjury, I certify that: 1. The number shown on this form is my correct taxpayer identification number (or I am waiting for a number to be issued to me), and 2. 1 am not subject to backup withholding because: (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service (IRS) that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding, and 3. 1 am a U.S. citizen or other U.S. person (defined below). Certification instructions. You must cross out item 2 above if you have been notified by the IRS that you are currently subject to backup withholding because you have failed to report all interest and dividends on your tax return. For real estate transactions, item 2 does not apply. For mortgage interest paid, acquisition or abandonment of secured property, cancellation of debt, contributions to an individual retirement arrangement (IRA), and generally, payments other than interest and dividends, you are not required to sign the certification, but you must provide your correct TIN. See the instructions on bade 4. Sign Signature of Here U.S. person► Date 11- General Instructions Section references are to the Internal Revenue Code unless otherwise noted. Purpose of Form A person who is required to file an information return with the IRS must obtain your correct taxpayer identification number (TIN) to report, for example, income paid to you, real estate transactions, mortgage interest you paid, acquisition or abandonment of secured property, cancellation of debt, or contributions you made to an IRA. Use Form W -9 only if you are a U.S. person (including a resident alien), to provide your correct TIN to the person requesting it (the requester) and, when applicable, to: 1. Certify that the TIN you are giving is correct (or you are waiting for a number to be issued), 2. Certify that you are not subject to backup withholding, or Note. If a requester gives you a form other than Form W -9 to request your TIN, you must use the requester's form if it is substantially similar to this Form W -9. Definition of a U.S. person. For federal tax purposes, you are considered a U.S. person if you are: • An individual who is a U.S. citizen or U.S. resident alien. • A partnership, corporation, company, or association created or organized in the United States or under the laws of the United States, • An estate (other than a foreign estate), or • A domestic trust (as defined in Regulations section 301.7701 -7). Special rules for partnerships. Partnerships that conduct a trade or business in the United States are generally required to pay a withholding tax on any foreign partners' share of income from such business. Further, in certain cases where a Form W -9 has not been received, a partnership is required to presume that a partner is a foreign person, and pay the withholding tax. Therefore, if you are a U.S. person that is a 3. Claim exemption from backup withholding if you are a U.S. exempt partner in a partnership conducting a trade or business in the United payee. If applicable, you are also certifying that as a U.S. person, your States, provide Form W -9 to the partnership to establish your U.S. allocable share of any partnership income from a U.S. trade or business status and avoid withholding on your share of partnership income. is not subject to the withholding tax on foreign partners' share of effectively connected income. Cat. No. 10231X Form W -9 (Rev. 12 -2011) Form W -9 (Rev. 12 -2011) The person who gives Form W -9 to the partnership for purposes of establishing its U.S. status and avoiding withholding on its allocable share of net income from the partnership conducting a trade or business in the United States is in the following cases: • The U.S. owner of a disregarded entity and not the entity, • The U.S. grantor or other owner of a grantor trust and not the trust, and • The U.S. trust (other than a grantor trust) and not the beneficiaries of the trust. Foreign person. If you are a foreign person, do not use Form W -9. Instead, use the appropriate Form W -8 (see Publication 515, Withholding of Tax on Nonresident Aliens and Foreign Entities). Nonresident alien who becomes a resident alien. Generally, only a nonresident alien individual may use the terms of a tax treaty to reduce or eliminate U.S. tax on certain types of income. However, most tax treaties contain a provision known as a "saving clause." Exceptions specified in the saving clause may permit an exemption from tax to continue for certain types of income even after the payee has otherwise become a U.S. resident alien for tax purposes. If you are a U.S. resident alien who is relying on an exception contained in the saving clause of a tax treaty to claim an exemption from U.S. tax on certain types of income, you must attach a statement to Form W -9 that specifies the following five items: 1. The treaty country. Generally, this must be the same treaty under which you claimed exemption from tax as a nonresident alien. 2. The treaty article addressing the income. 3. The article number (or location) in the tax treaty that contains the saving clause and its exceptions. 4. The type and amount of income that qualifies for the exemption from tax. 5. Sufficient facts to justify the exemption from tax under the terms of the treaty article. Example. Article 20 of the U.S. -China income tax treaty allows an exemption from tax for scholarship income received by a Chinese student temporarily present in the United States. Under U.S. law, this student will become a resident alien for tax purposes if his or her stay in the United States exceeds 5 calendar years. However, paragraph 2 of the first Protocol to the U.S. -China treaty (dated April 30, 1984) allows the provisions of Article 20 to continue to apply even after the Chinese student becomes a resident alien of the United States. A Chinese student who qualifies for this exception (under paragraph 2 of the first protocol) and is relying on this exception to claim an exemption from tax on his or her scholarship or fellowship income would attach to Form W -9 a statement that includes the information described above to support that exemption. If you are a nonresident alien or a foreign entity not subject to backup withholding, give the requester the appropriate completed Form W -8. What is backup withholding? Persons making certain payments to you must under certain conditions withhold and pay to the IRS a percentage of such payments. This is called "backup withholding." Payments that may be subject to backup withholding include interest, tax- exempt interest, dividends, broker and barter exchange transactions, rents, royalties, nonemployee pay, and certain payments from fishing boat operators. Real estate transactions are not subject to backup withholding. You will not be subject to backup withholding on payments you receive if you give the requester your correct TIN, make the proper certifications, and report all your taxable interest and dividends on your tax return. Payments you receive will be subject to backup withholding if: 1. You do not furnish your TIN to the requester, 2. You do not certify your TIN when required (see the Part II instructions on page 3 for details), 3. The IRS tells the requester that you furnished an incorrect TIN, 4. The IRS tells you that you are subject to backup withholding because you did not report all your interest and dividends on your tax return (for reportable interest and dividends only), or 5. You do not certify to the requester that you are not subject to backup withholding under 4 above (for reportable interest and dividend accounts opened after 1983 only). Page 2 Certain payees and payments are exempt from backup withholding. See the instructions below and the separate Instructions for the Requester of Form W -9. Also see Special rules for partnerships on page 1. Updating Your Information You must provide updated information to any person to whom you claimed to be an exempt payee if you are no longer an exempt payee and anticipate receiving reportable payments in the future from this person. For example, you may need to provide updated information if you are a C corporation that elects to be an S corporation, or if you no longer are tax exempt. In addition, you must furnish a new Form W -9 if the name or TIN changes for the account, for example, if the grantor of a grantor trust dies. Penalties Failure to furnish TIN. If you fail to furnish your correct TIN to a requester, you are subject to a penalty of $50 for each such failure unless your failure is due to reasonable cause and not to willful neglect. Civil penalty for false information with respect to withholding. If you make a false statement with no reasonable basis that results in no backup withholding, you are subject to a $500 penalty. Criminal penalty for falsifying information. Willfully falsifying certifications or affirmations may subject you to criminal penalties including fines and /or imprisonment. Misuse of TINS. If the requester discloses or uses TINS in violation of federal law, the requester may be subject to civil and criminal penalties. Specific Instructions Name If you are an individual, you must generally enter the name shown on your income tax return. However, if you have changed your last name, for instance, due to marriage without informing the Social Security Administration of the name change, enter your first name, the last name shown on your social security card, and your new last name. If the account is in joint names, list first, and then circle, the name of the person or entity whose number you entered in Part I of the form. Sole proprietor. Enter your individual name as shown on your income tax return on the "Name" line. You may enter your business, trade, or "doing business as (DBA)" name on the "Business name /disregarded entity name" line. Partnership, C Corporation, or S Corporation. Enter the entity's name on the "Name" line and any business, trade, or "doing business as (DBA) name" on the "Business name /disregarded entity name" line. Disregarded entity. Enter the owner's name on the "Name" line. The name of the entity entered on the "Name" line should never be a disregarded entity. The name on the "Name" line must be the name shown on the income tax return on which the income will be reported. For example, if a foreign LLC that is treated as a disregarded entity for U.S. federal tax purposes has a domestic owner, the domestic owner's name is required to be provided on the "Name" line. If the direct owner of the entity is also a disregarded entity, enter the first owner that is not disregarded for federal tax purposes. Enter the disregarded entity's name on the "Business name /disregarded entity name" line. If the owner of the disregarded entity is a foreign person, you must complete an appropriate Form W -8. Note. Check the appropriate box for the federal tax classification of the person whose name is entered on the "Name" line (Individual /sole proprietor, Partnership, C Corporation, S Corporation, Trust/estate). Limited Liability Company (LLC). If the person identified on the "Name" line is an LLC, check the "Limited liability company" box only and enter the appropriate code for the tax classification in the space provided. If you are an LLC that is treated as a partnership for federal tax purposes, enter "P" for partnership. If you are an LLC that has filed a Form 8832 or a Form 2553 to be taxed as a corporation, enter "C" for C corporation or "S" for S corporation. If you are an LLC that is disregarded as an entity separate from its owner under Regulation section 301.7701 -3 (except for employment and excise tax), do not check the LLC box unless the owner of the LLC (required to be identified on the "Name" line) is another LLC that is not disregarded for federal tax purposes. If the LLC is disregarded as an entity separate from its owner, enter the appropriate tax classification of the owner identified on the "Name" line. Form W -9 (Rev. 12 -2011) Other entities. Enter your business name as shown on required federal tax documents on the "Name" line. This name should match the name shown on the charter or other legal document creating the entity. You may enter any business, trade, or DBA name on the "Business name/ disregarded entity name" line. Exempt Payee If you are exempt from backup withholding, enter your name as described above and check the appropriate box for your status, then check the "Exempt payee" box in the line following the "Business name/ disregarded entity name," sign and date the form. Generally, individuals (including sole proprietors) are not exempt from backup withholding. Corporations are exempt from backup withholding for certain payments, such as interest and dividends. Note. If you are exempt from backup withholding, you should still complete this form to avoid possible erroneous backup withholding. The following payees are exempt from backup withholding: 1. An organization exempt from tax under section 501(a), any IRA, or a custodial account under section 403(b)(7) if the account satisfies the requirements of section 401(f)(2), 2. The United States or any of its agencies or instrumentalities, 3. A state, the District of Columbia, a possession of the United States, or any of their political subdivisions or instrumentalities, 4. A foreign government or any of its political subdivisions, agencies, or instrumentalities, or 5. An international organization or any of its agencies or instrumentalities. Other payees that may be exempt from backup withholding include: 6. A corporation, 7. A foreign central bank of issue, 8. A dealer in securities or commodities required to register in the United States, the District of Columbia, or a possession of the United States, 9. A futures commission merchant registered with the Commodity Futures Trading Commission, 10. A real estate investment trust, 11. An entity registered at all times during the tax year under the Investment Company Act of 1940, 12. A common trust fund operated by a bank under section 584(a), 13. A financial institution, 14. A middleman known in the investment community as a nominee or custodian, or 15. A trust exempt from tax under section 664 or described in section 4947. The following chart shows types of payments that may be exempt from backup withholding. The chart applies to the exempt payees listed above, 1 through 15. IF the payment is for ... THEN the payment is exempt for... Interest and dividend payments All exempt payees except for 9 Broker transactions Exempt payees 1 through 5 and 7 through 13. Also, C corporations. Barter exchange transactions and Exempt payees 1 through 5 patronage dividends Payments over $600 required to be Generally, exempt payees reported and direct sales over 1 through 7' $5,000' See Form 1099 -MISC, Miscellaneous Income, and its instructions. However, the following payments made to a corporation and reportable on Form 1099 -MISC are not exempt from backup withholding: medical and health care payments, attorneys' fees, gross proceeds paid to an attorney, and payments for services paid by a federal executive agency. Paqe 3 Part I. Taxpayer Identification Number (TIN) Enter your TIN in the appropriate box. If you are a resident alien and you do not have and are not eligible to get an SSN, your TIN is your IRS individual taxpayer identification number (ITIN). Enter it in the social security number box. If you do not have an ITIN, see How to get a TIN below. If you are a sole proprietor and you have an EIN, you may enter either your SSN or EIN. However, the IRS prefers that you use your SSN. If you are a single- member LLC that is disregarded as an entity separate from its owner (see Limited Liability Company (LLC) on page 2), enter the owner's SSN (or EIN, if the owner has one). Do not enter the disregarded entity's EIN. If the LLC is classified as a corporation or partnership, enter the entity's EIN. Note. See the chart on page 4 for further clarification of name and TIN combinations. How to get a TIN. If you do not have a TIN, apply for one immediately. To apply for an SSN, get Form SS -5, Application for a Social Security Card, from your local Social Security Administration office or get this form online at www.ssa.gov. You may also get this form by calling 1- 800 - 772 -1213. Use Form W -7, Application for IRS Individual Taxpayer Identification Number, to apply for an ITIN, or Form SS -4, Application for Employer Identification Number, to apply for an EIN. You can apply for an EIN online by accessing the IRS website at www.irs.gov /businesses and clicking on Employer Identification Number (EIN) under Starting a Business. You can get Forms W -7 and SS -4 from the IRS by visiting IRS.gov or by calling 1- 800 -TAX -FORM (1- 800 -829- 3676). If you are asked to complete Form W -9 but do not have a TIN, write "Applied For" in the space for the TIN, sign and date the form, and give it to the requester. For interest and dividend payments, and certain payments made with respect to readily tradable instruments, generally you will have 60 days to get a TIN and give it to the requester before you are subject to backup withholding on payments. The 60 -day rule does not apply to other types of payments. You will be subject to backup withholding on all such payments until you provide your TIN to the requester. Note. Entering "Applied For" means that you have already applied for a TIN or that you intend to apply for one soon. Caution: A disregarded domestic entity that has a foreign owner must use the appropriate Form 1/1-8. Part II. Certification To establish to the withholding agent that you are a U.S. person, or resident alien, sign Form W -9. You may be requested to sign by the withholding agent even if item 1, below, and items 4 and 5 on page 4 indicate otherwise. For a joint account, only the person whose TIN is shown in Part I should sign (when required). In the case of a disregarded entity, the person identified on the "Name" line must sign. Exempt payees, see Exempt Payee on page 3. Signature requirements. Complete the certification as indicated in items 1 through 3, below, and items 4 and 5 on page 4. 1. Interest, dividend, and barter exchange accounts opened before 1984 and broker accounts considered active during 1983. You must give your correct TIN, but you do not have to sign the certification. 2. Interest, dividend, broker, and barter exchange accounts opened after 1983 and broker accounts considered inactive during 1983. You must sign the certification or backup withholding will apply. If you are subject to backup withholding and you are merely providing your correct TIN to the requester, you must cross out item 2 in the certification before signing the form. 3. Real estate transactions. You must sign the certification. You may cross out item 2 of the certification. Form W -9 (Rev. 12 -2011) 4. Other payments. You must give your correct TIN, but you do not have to sign the certification unless you have been notified that you have previously given an incorrect TIN. "Other payments" include payments made in the course of the requester's trade or business for rents, royalties, goods (other than bills for merchandise), medical and health care services (including payments to corporations), payments to a nonemployee for services, payments to certain fishing boat crew members and fishermen, and gross proceeds paid to attorneys (including payments to corporations). 5. Mortgage interest paid by you, acquisition or abandonment of secured property, cancellation of debt, qualified tuition program payments (under section 529), IRA, Coverdell ESA, Archer MSA or HSA contributions or distributions, and pension distributions. You must give your correct TIN, but you do not have to sign the certification. What Name and Number To Give the Requester For this type of account Give name and SSN of.. 1. Individual The individual 2. Two or more individuals (joint The actual owner of the account or, account) if combined funds, the first individual on the account 3. Custodian account of a minor The minor' (Uniform Gift to Minors Act) 4. a. The usual revocable savings The grantor - trustee trust (grantor is also trustee) b. So- called trust account that is The actual owner ' not a legal or valid trust under state law 5. Sole proprietorship or disregarded The owner' entity owned by an individual 6. Grantor trust filing under Optional The grantor" Form 1099 Filing Method 1 (see Regulation section 1.671- 4(b)(2)(i)(A)) For this type of account Give name and EIN of: 7. Disregarded entity not owned by an The owner individual 8. A valid trust, estate, or pension trust Legal entity' 9. Corporation or LLC electing The corporation corporate status on Form 8832 or Form 2553 10. Association, club, religious, The organization charitable, educational, or other tax - exempt organization 11. Partnership or multi - member LLC The partnership 12. A broker or registered nominee The broker or nominee 13. Account with the Department of The public entity Agriculture in the name of a public entity (such as a state or local government, school district, or prison) that receives agricultural program payments 14. Grantor trust filing under the Form The trust 1041 Filing Method or the Optional Form 1099 Filing Method 2 (see Regulation section 1.671- 4(b)(2)(i)(B)) Gst first and circle the name of the person whose number you furnish. If only one person on a joint account has an SSN, that person's number must be furnished. Circle the minor's name and furnish the minors SSN. 3 You must show your individual name and you may also enter your business or "DBA" name on the "Business name /disregarded entity" name line. You may use either your SSN or EIN (if you have one). but the IRS encourages you to use your SSN. List first and circle the name of the trust, estate. or pension trust. (Do not furnish the TIN of the personal representative or trustee unless the legal entity itself is not designated in the account tOle.) Also see Special rules for partnerships on page 1. 'Note. Grantor also must provide a Form W -9 to trustee of trust. Panes 4 Note. If no name is circled when more than one name is listed, the number will be considered to be that of the first name listed. Secure Your Tax Records from Identity Theft Identity theft occurs when someone uses your personal information such as your name, social security number (SSN), or other identifying information, without your permission, to commit fraud or other crimes. An identity thief may use your SSN to get a job or may file a tax return using your SSN to receive a refund. To reduce your risk: • Protect your SSN, • Ensure your employer is protecting your SSN, and • Be careful when choosing a tax preparer. If your tax records are affected by identity theft and you receive a notice from the IRS, respond right away to the name and phone number printed on the IRS notice or letter. If your tax records are not currently affected by identity theft but you think you are at risk due to a lost or stolen purse or wallet, questionable credit card activity or credit report, contact the IRS Identity Theft Hotline at 1- 800 - 908 -4490 or submit Form 14039. For more information, see Publication 4535, Identity Theft Prevention and Victim Assistance. Victims of identity theft who are experiencing economic harm or a system problem, or are seeking help in resolving tax problems that have not been resolved through normal channels, may be eligible for Taxpayer Advocate Service (TAS) assistance. You can reach TAS by calling the TAS toll -free case intake line at 1- 877 - 777 -4778 or TTY/TDD 1 -800- 829 -4059. Protect yourself from suspicious emails or phishing schemes. Phishing is the creation and use of email and websites designed to mimic legitimate business emails and websites. The most common act is sending an email to a user falsely claiming to be an established legitimate enterprise in an attempt to scam the user into surrendering private information that will be used for identity theft. The IRS does not initiate contacts with taxpayers via emails. Also, the IRS does not request personal detailed information through email or ask taxpayers for the PIN numbers, passwords, or similar secret access information for their credit card, bank, or other financial accounts. If you receive an unsolicited email claiming to be from the IRS, forward this message to phishing@irs.gov. You may also report misuse of the IRS name, logo, or other IRS property to the Treasury Inspector General for Tax Administration at 1 -800- 366 -4484. You can forward suspicious emails to the Federal Trade Commission at: spam @uce.gov or contact them at www.ftc.govlldtheft or 1- 877 - IDTHEFT (1- 877 - 438- 4338). Visit IRS.gov to learn more about identity theft and how to reduce your risk. Privacy Act Notice Section 6109 of the Internal Revenue Code requires you to provide your correct TIN to persons (including federal agencies) who are required to file information returns with the IRS to report interest, dividends, or certain other income paid to you; mortgage interest you paid; the acquisition or abandonment of secured property; the cancellation of debt; or contributions you made to an IRA, Archer MSA, or HSA. The person collecting this form uses the information on the form to file information returns with the IRS, reporting the above information. Routine uses of this information include giving it to the Department of Justice for civil and criminal litigation and to cities, states, the District of Columbia, and U.S. possessions for use in administering their laws. The information also may be disclosed to other countries under a treaty, to federal and state agencies to enforce civil and criminal laws, or to federal law enforcement and intelligence agencies to combat terrorism. You must provide your TIN whether or not you are required to file a tax return. Under section 3406, payers must generally withhold a percentage of taxable interest, dividend, and certain other payments to a payee who does not give a TIN to the payer. Certain penalties may also apply for providing false or fraudulent information. YEAR Withholding Exemption Certificate CALIFORNIA FORM (This form can only be used to certify exemption from nonresident withholding under California Revenue 2011 and Taxation Code (R &TC) Section 18662. Do not use this form for exemption from wage withholding.) 590 File this form with your withholding agent. (Please type or print) Withholding agent's name Payee's name Payee's Cr SSN or ITIN SOS file no. �_ CA corp. no. G FEIN Address (number and street, PO Box, or PMB no.) Apt. nod Ste. no. City State ZIP Code Read the following carefully and check the box that applies to the payee. I certify that for the reasons checked below, the payee named on this form is exempt from the California income tax withholding requirement on payment(s) made to the entity or individual. ❑ Individuals — Certification of Residency: I am a resident of California and I reside at the address shown above. If I become a nonresident at any time, I will promptly notify the withholding agent. See instructions for General Information D, Who is a Resident, for the definition of a resident. ❑ Corporations: The above -named corporation has a permanent place of business in California at the address shown above or is qualified through the California Secretary of State (SOS) to do business in California. The corporation will file a California tax return and withhold on payments of California source income to nonresidents when required. If this corporation ceases to have a permanent place of business in California or ceases to do any of the above, I will promptly notify the withholding agent. See instructions for General Information F, What is a Permanent Place of Business, for the definition of permanent place of business. ❑ Partnerships or limited liability companies (LLC): The above -named partnership or LLC has a permanent place of business in California at the address shown above or is registered with the California SOS, and is subject to the laws of California. The partnership or LLC will file a California tax return and will withhold on foreign and domestic nonresident partners or members when required. If the partnership or LLC ceases to do any of the above, I will promptly inform the withholding agent. For withholding purposes, a limited liability partnership (LLP) is treated like any other partnership. ❑ Tax - Exempt Entities: The above -named entity is exempt from tax under California Revenue and Taxation Code (R &TC) Section 23701 (insert letter) or Internal Revenue Code Section 501(c) (insert number). The tax- exempt entity will withhold on payments of California source income to nonresidents when required. If this entity ceases to be exempt from tax, I will promptly notify the withholding agent. Individuals cannot be tax- exempt entities. ❑ Insurance Companies, Individual Retirement Arrangements (IRAs), or Qualified Pension/Profit Sharing Plans: The above -named entity is an insurance company, IRA, or a federally qualified pension or profit- sharing plan. ❑ California Trusts: At least one trustee and one noncontingent beneficiary of the above -named trust is a California resident. The trust will file a California fiduciary tax return and will withhold on foreign and domestic nonresident beneficiaries when required. If the trustee becomes a nonresident at any time, I will promptly notify the withholding agent. ❑ Estates — Certification of Residency of Deceased Person: I am the executor of the above -named person's estate. The decedent was a California resident at the time of death. The estate will file a California fiduciary tax return and will withhold on foreign and domestic nonresident beneficiaries when required. ❑ Nonmilitary Spouse of a Military Servicemember: I am a nonmilitary spouse of a military servicemember and I meet the Military Spouse Residency Relief Act (MSRRA) requirements. See instructions for General Information E, MSRRA. CERTIFICATE: Please complete and sign below. Under penalties of perjury, I hereby certify that the information provided in this document is, to the best of my knowledge, true and correct. If conditions change, I will promptly notify the withholding agent. Payee's name and title (type or print) Daytime telephone no. Payee's signature ► Date Form 590 cz 201 For Privacy Notice, get form FTB 1131. —� 7061113 �— Instructions for Form 590 Withholding Exemption Certificate References in these instructions are to the California Revenue and Taxation Code (R &TC). tVnai-s new Backup Withholding – Beginning on or after January 1, 2010, with certain limited exceptions, payers that are required to withhold and remit backup withholding to the Internal Revenue Service (IRS) are also required to withhold and remit to the Franchise Tax Board (FTB). The California backup withholding rate is 7% of the payment. For California purposes, dividends, interests, and any financial institutions release of loan funds made in the normal course of business are exempt from backup withholding. For additional information on California backup withholding. go to ftb.ca.gov and search for backup withholding. If a payee has backup withholding, the payee must contact the FTB to provide a valid Taxpayer Identification Number (TIN) before filing a tax return. The following are acceptable TINs: social security number (SSN); individual taxpayer identification number (ITIN); federal employer identification number (FEIN); California corporation number (CA Corp No.); or Secretary of State (SOS) file number. Failure to provide a valid TIN will result in the denial of the backup withholding credit. For more information go to ftb.ca.gov and search for backup withholding. General Information For purposes of California income tax, references to a spouse, husband, or wife also refer to a Registered Domestic Partner (RDP) unless otherwise specified. For more information on RDPs, get FTB Pub. 737, Tax Information for Registered Domestic Partners. Private Mail Box (PMB) – Include the PMB in the address field. Write "PMB" first, then the box number. Example: 111 Main Street PMB 123. Foreign Address – Enter the information in the following order: City, Country, Province/ Region, and Postal Code. Follow the country's practice for entering the postal code. Do not abbreviate the country's name. A Purpose Use Form 590, Withholding Exemption Certificate, to certify an exemption from nonresident withholding. California residents or entities should complete and present Form 590 to the withholding agent. The withholding agent is then relieved of the withholding requirements if the agent relies in good faith on a completed and signed Form 590 unless told by the FTB that the form should not be relied upon. The following are excluded from withholding and completing this form: • The United States and any of its agencies or instrumentalities • A state, a possession of the United States, the District of Columbia, or any of its political subdivisions or instrumentalities • A foreign government or any of its political subdivisions, agencies, or instrumentalities Important –This form cannot be used for exemption from wage and real estate withholding. • If you are an employee, any wage withholding questions should be directed to the FTB General Information number, 800.852.5711. Employers should call 888.745.3886 or go to www.edd.ca.gov. • Sellers of California real estate use Form 593 -C, Real Estate Withholding Certificate, to claim an exemption from real estate withholding. B Requirement R &TC Section 18662 requires withholding of income or franchise tax on payments of California source income made to nonresidents of California. Withholding is required on the following, but is not limited to: • Payments to nonresidents for services rendered in California. • Distributions of California source income made to domestic nonresident S corporation shareholders, partners and members and allocations of California source income made to foreign partners and members. • Payments to nonresidents for rents if the payments are made in the course of the withholding agent's business. • Payments to nonresidents for royalties with activities in California. • Distributions of California source income to nonresident beneficiaries from an estate or trust. • Prizes and winnings received by nonresidents for contests in California. However, withholding is optional if the total payments of California source income are $1,500 or less during the calendar year. For more information on withholding get FTB Pub. 1017, Resident and Nonresident Withholding Guidelines. To get a withholding publication see General Information H, Publications, Forms, and Additional Information. C Who Certifies this Form Form 590 is certified by the payee. An incomplete certificate is invalid and the withholding agent should not accept it. If the withholding agent receives an incomplete certificate, the withholding agent is required withhold tax on payments made to the payee until a valid certificate is received. In lieu of a completed certificate on the preprinted form, the withholding agent may accept as a substitute certificate a letter from the payee explaining why the payee is not subject to withholding. The letter must contain all the information required on the certificate in similar language, including the under penalty of perjury statement and the payee's taxpayer identification number. The withholding agent must retain a copy of the certificate or substitute for at least four years after the last payment to which the certificate applies, and provide it upon request to the Franchise Tax Board. For example, if an entertainer (or the entertainer's business entity) is paid for a performance, the entertainer's information must be provided. Do not submit the entertainer's agent or promoter information. The grantor of a grantor trust shall be treated as the payee for withholding purposes. Therefore, if the payee is a grantor trust and one or more of the grantors is a nonresident, withholding is required. If all of the grantors on the trust are residents, no withholding is required. Resident grantors can check the box on Form 590 labeled "Individuals —Certification of Residency." D Who is a Resident A California resident is any individual who is in California for other than a temporary or transitory purpose or any individual domiciled in California who is absent for a temporary or transitory purpose. An individual domiciled in California who is absent from California for an uninterrupted period of at least 546 consecutive days under an employment - related contract is considered outside California for other than a temporary or transitory purpose. An individual is still considered outside California for other than a temporary or transitory purpose if return visits to California do not total more than 45 days during any taxable year covered by an employment contract. This provision does not apply if an individual has income from stocks, bonds, notes, or other intangible personal property in excess of $200,000 in any taxable year in which the employment - related contract is in effect. A spouse /RDP absent from California for an uninterrupted period of at least 546 days to accompany a spouse /RDP under an employment - related contract is considered outside of California for other than a temporary or transitory purpose. Form 590 Instructions 2010 Page 1 Generally, an individual who comes to California for a purpose which will extend over a long or indefinite period will be considered a resident. However, an individual who comes to perform a particular contract of short duration will be considered a nonresident. For assistance in determining resident status, get FTB Pub. 1031, Guidelines for Determining Resident Status, and FTB Pub. 1032, Tax Information for Military Personnel, or call the FTB at 800.852.5711 or 916.845.6500. E Military Spouse Residency Relief Act (MSRRA) Generally, for tax purposes you are considered to maintain your existing residence or domicile. If a military servicemember and nonmilitary spouse have the same state of domicile, the MSRRA provides: • A spouse shall not be deemed to have lost a residence or domicile in any state solely by reason of being absent to be with the servicemember serving in compliance with military orders. • A spouse shall not be deemed to have acquired a residence or domicile in any other state solely by reason of being there to be with the servicemember serving in compliance with military orders. Domicile is defined as the one place: • Where you maintain a true, fixed, and permanent home • To which you intend to return whenever you are absent A military servicemember's nonmilitary spouse is considered a nonresident for tax purposes if the servicemember and spouse have the same domicile outside of California and the spouse is in California solely to be with the servicemember who is serving in compliance with Permanent Change of Station orders (Note: California may require nonmilitary spouses of military servicemembers to provide proof that they meet the criteria for California personal income tax exemption as set forth in the MSRRA ). Page 2 Form 590 Instructions 2010 Income of a military servicemember's nonmilitary spouse for services performed in California is not California source income subject to state tax if the spouse is in California to be with the servicemember serving in compliance with military orders, and the servicemember and spouse have the same domicile in a state other than California. For additional information or assistance in determining whether the applicant meets the MSRRA requirements, get FTB Pub. 1032. What is a Permanent Place of Business A corporation has a permanent place of business in California if it is organized and existing under the laws of California or if it is a foreign corporation qualified to transact intrastate business by the SOS. A corporation that has not qualified to transact intrastate business (e.g., a corporation engaged exclusively in interstate commerce) will be considered as having a permanent place of business in California only if it maintains a permanent office in California that is permanently staffed by its employees. G Withholding Agent Keep Form 590 for your records. Do not send this form to the FTB unless it has been specifically requested. For more information, contact Withholding Services and Compliance, see General Information H. The payee must notify the withholding agent if any of the following situations occur: • The individual payee becomes a nonresident. • The corporation ceases to have a permanent place of business in California or ceases to be qualified to do business in California. • The partnership ceases to have a permanent place of business in California. • The LLC ceases to have a permanent place of business in California. • The tax- exempt entity loses its tax - exempt status. The withholding agent must then withhold and report the withholding using Form 592, Resident and Nonresident Withholding Statement, and remit the withholding using Form 592 -V, Payment Voucher for Resident and Nonresident Withholding. Form 592 -B, Resident and Nonresident Withholding Tax Statement, is retained by the withholding agent and a copy is given to the payee. H Publications, Forms, and Additional Information You can download, view, and print California tax forms and publications at ftb.ca.gov. To have publications or forms mailed to you or to get additional nonresident withholding information, contact the Withholding Services and Compliance. WITHHOLDING SERVICES AND COMPLIANCE MS F182 FRANCHISE TAX BOARD PO BOX 942867 SACRAMENTO CA 94267.0651 Tele phone: 888.792.4900 916.845.4900 Fax: 916.845.9512 For all other questions unrelated to withholding or to access the TTY/TDD numbers, see the information below. Internet and Telephone Assistance Website: ftb.ca.gov Telephone: 800.852.5711 from within the United States 916.845.6500 from outside the United States TTY/TDD: 800.822.6268 for persons with hearing or speech impairments Asistencia Por Internet y Telefono Sitio web: ftb.ca.gov Telefono: 800.852.5711 dentro de los Estados Unidos 916.845.6500 fuera de los Estados Unidos TTY/TDD: 800.822.6268 personas con discapacidades auditivas y del habla control. Should a conflict exist In the documents Incorporated by reference, the documents shall control in the following order: 1) SCE acceptance letter(s) and Incentive estimate(s) based on solutions approved in the Application; and (2) the Partnership Agreement applicable to Applicant, and (3) Applicant's approved Application(s). Should a conflict exist between an applicable federal, State, or local law, rule, regulation, order or code and this Agreement, the law, rule, regulation, order or code shall control. Varying degrees of stringency among the main body of this Agreement, the documents incorporated by reference, and laws, rules, regulations, orders, or codes are not deemed conflicts, and the most stringent requirement shall control. Each Party shall notify the other Immediately upon the identification of any conflict or inconsistency concerning this Agreement. 17.0 CANCELLATION OF AGREEMENT: SCE may suspend or terminate the Agreement, with cause, upon written notice to the Applicant identified in Section 15 hereof. SCE may suspend or terminate the Agreement upon written notice to the Applicant if funding for the Program is depleted, or If SCE determines suspension or termination of the Agreement is necessary in order to make changes to the related Program or if SCE is ordered by the CPUC to modify or discontinue a Program and /or any agreements related to a Program. 18,0 MISCELLANEOUS This Agreement shall at all times be subject to such changes or modifications by the CPUC as it may from time to time direct in the exercise of its jurisdiction. This Agreement shall be governed and construed in accordance with the laws of the State of California, without regard to its conflict of laws provisions. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect. This Agreement constitutes the entire agreement and understanding between the Parties as to the subject matter of this Agreement and supersedes all prior agreements, representations, writings and discussions between the Parties, whether oral or written, with respect to the subject matter hereof. No amendment, modification or change to this Agreement shall be binding or effective unless expressly set forth in writing and signed by SCE's representative authorized to execute the Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date set forth below 0 Title: Name Printed: Mark Wallenrod APPLICANT CUSTOMER 14UTHORIZED AGENT) By Title: Interim City Manager Name Kevin O'Rourke Printed: RAfi. 1 'I x1113 ATTE1,Vt w C /2ita,,,,ic �� MARIA D. HUIZAR c CLERK OF THE COUNCIL CUSTOUIZEOSOLUTIONS CONTRACT -LOCAL "VFRPi✓iPF ITACID[PIS"TI'I'UTIOPiAL FART Fr RSHIP 7 OF