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HomeMy WebLinkAboutC32050 - Desert Willow Irrigation Pump Renovation 850-13Contract C32050 CITY OF PALM DESERT PUBLIC WORKS STAFF REPORT REQUEST: AUTHORIZE AWARD OF CONTRACT NO. C32050 TO CLOUDBURST ENGINEERING, INC., PALM DESERT, CALIFORNIA, FOR THE DESERT WILLOW IRRIGATION PUMP RENOVATION IN THE AMOUNT NOT TO EXCEED $101,954.28 (PROJECT NO. 850-13) SUBMITTED BY: Mark Greenwood, P.E., Director of Public Works CONTRACTOR: Cloudburst Engineering, Inc. 71825 Cholla Way Palm Desert, California 92260 DATE: November 15, 2012 CONTENTS: Contract No. C32050 On -Bill Financing Agreement and Application (for reference only) Rebate Application (for reference only) Recommendation By Minute Motion: 1. Authorize the award of Contract No. C32050 to Cloudburst Engineering, Palm Desert, California, for the Desert Willow Irrigation Pump Renovation in the amount not to exceed $101,954.28 (Project No. 850-13); 2. Authorize the Director of Finance to set aside a 10 percent contingency in the amount of $10,195.43; 3. Authorize the Mayor to execute the contract; and 4. Authorize the City Manager to finalize and execute any and all applications, agreements, and documents required by Southern California Edison to receive potential Cash Incentives and On -Bill Financing for the irrigation pump upgrades. Funds for the Desert Willow Irrigation Pump Renovation are available in Course and Grounds Expenses, Account No. 520-4195-495-8031. Background As part of the Fiscal Year 2012/2013 budget, $135,000 has been budgeted for the Desert Willow Irrigation Pump Renovation project. Staff Report Award C32050 to Cloudburst for DW Irrigation Pump Renovation (Project No. 850-13) Page 2of3 November 15, 2012 On September 19 and September 26, 2012, the Notice Inviting Bids for the Irrigation Pump Renovation project was published in The Desert Sun. Bids were solicited based on a minimum of five (5) and a maximum of seven (7) irrigation pumps being renovated at the Desert Willow Golf Resort. On October 9, 2012, sealed bids were opened by the City Clerk. Below is a summary of the bids received: Company Name City Base Bild Bid including Alternates 1 and 2 Cloudburst Engineering Palm Desert, CA $73,958.28 $101,954.28 Southwest Pump and Drilling Coachella, CA $79,690.94 $109,140.94 Layne Christianson Redlands, CA $109,760.00 $153,400.00 MMC, Inc. La Palma, CA $224,687.50 $307,687.50 After review of the bids and the contractor qualifications, Cloudburst Engineering, Inc., based in Palm Desert, California, was the lowest responsive bidder. The base bid includes the renovation of the five irrigation pumps that have the lowest efficiency and the greatest potential rebates from Southern California Edison (SCE). Alternates 1 and 2 include the renovation of two additional irrigation pumps that have a lesser potential for improvement in efficiency. Staff recommends renovation of all seven pumps (base bid plus Alternates 1 and 2) to improve efficiency, lower utility (water and electricity) costs for the golf resort, and minimize the possibility of emergency repairs to the aging infrastructure. Although sufficient funds have been budgeted for this project, staff recommends taking advantage of two incentive programs through SCE that are applicable to this project: On -Bill Financing (OBF) and Cash Incentives (Rebates). The two programs require that applications be submitted to SCE based on the construction costs. The applications are required to be submitted and approved by SCE prior to commencement of construction. The review period is approximately 4-6 weeks. Staff submitted the initial applications to SCE at the beginning of November. Since irrigation use is at its lowest in the winter season, staff recommends replacement of the irrigation pumps in early 2013 to minimize the impacts to golf course operations. In order to accomplish this, staff is recommending award of the contract to Cloudburst Engineering prior to a final determination from SCE regarding the availability of funding for the OBF and Rebates. Regardless of whether OBF or Rebates are approved by SCE, staff recommends that this project be completed because the estimated annual utility cost savings due to more efficient pump operations are $15,400. On -Bill Financing OBF helps to offset the cost of purchasing and installing eligible energy efficiency equipment. Through OBF, the City will receive zero percent (0%) interest, no -fee financing. The financing is available for up to 100% of the total actual installed costs with a maximum of $250,000 for government customers. The maximum loan term is ten (10) years (or the expected useful life of the equipment, whichever is shorter). The monthly loan repayment will be approximately equal \\srv-fil2k3\groups\PubWorks\Staff Reports\2012\November 15\01 Award DW Irrigation Pump Renovation\SR-Award DW Pump Renovation 850-13.doc Staff Report Award C32050 to Cloudburst for DW Irrigation Pump Renovation (Project No. 850-13) Page 3 of 3 November 15, 2012 to the estimated monthly savings that we expect to receive through the utility bill due to the estimated energy savings. The City will front the money for the work then be reimbursed by SCE. Desert Willow Golf Resort will then repay the loan to SCE through a charge on the monthly energy bill. Cash Incentives (Rebates) Rebates are calculated by SCE based on existing pump efficiency, pump size, and potential efficiency improvement. The existing efficiencies of the pumps are approximately 55 percent with potential for improvement to 67 percent. The rebates are estimated to be between $1,100 and $3,600 per pump depending on the existing pump efficiency, for a cumulative total of approximately $16,000 in cash incentives. Fiscal Analysis No appropriation is required; funding is available in the current budget. The estimated annual utility cost savings due to more efficient pump operations are $15,400. Possible SCE rebates and OBF may result in additional savings. Prepared By: Heather Buck, Project Coordinator in Alvarez Director of Economic Development Depart n H ad: CITY COUNCILA rS"i`ION APPROVED ✓ DEVI" z RECEIVED OTHER Mark Gee wood, P Directot4 Public W PaLYS. Gibson, Director of Finance Approval- l� John M ohlmuth, Cit Manager NOES: lvulw ABSENT: ABSTAIN: VERIFIED BY: Original on File with 's Office \\.srv-fil2k3\groups\PubWorks\Staff Reports\2012\November 15\01 Award DW Irrigation Pump Renovation\SR-Award DW Pump Renovation 850-13.doc Contract No. C32050 AGREEMENT THIS AGREEMENT is made and entered into this 12th day of November, 2012, by and between City of Palm Desert, California, hereafter called "CITY" and Cloudburst Engineering, Inc. hereinafter called "CONTRACTOR". WITNESSETH RECITALS: CONTRACTOR has submitted to CITY its Contractor's Bid for the construction of CITY Project, 1. DESERT WILLOW IRRIGATION PUMP MOTOR RENOVATIONS, PROJECT NO. 850-13, CONTRACT NO. C32050, in strict accordance with the Contract Documents identified below, CITY has accepted said Bid, including alternates: 1 and 2. 2. CONTRACTOR states that it has re-examined its CONTRACTOR'S Bid and found it to be correct, has ascertained that its Subcontractors are properly licensed and possess the requisite skill and forces, has examined the site and Contract in accordance with the Contract Documents for the money set forth in its Bid to be paid as provided in the Contract Documents. AGREEMENT: IT IS AGREED BY THE PARTIES AS FOLLOWS: 1. Contract Documents: The entire contract consists of the following: (a) The Agreement; (b) The Notice Inviting Bids; (c) The Instruction to Bidders; (d) The Contractor's Bid; (e) The Bidder's Bond; (f) The Performance Bond; (g) The Payment Bond; (h) The General Specifications; (i) The Special Provisions; 0) The Standard Specifications as modified in other portions of the Contract Documents; (k) The Plans; (1) Addenda Nos. 1 and 2; (m) Any Change Orders issued; (n) Any additional or supplemental specifications, notices, instructions and drawings issued in accordance with the provisions of the Contract Documents. All of said Documents presently in existence are by this reference incorporated herein as if here set forth in full and upon the proper issuance of their documents they shall likewise be deemed incorporated. 2. Contractor shall commence the work within ten calendar days after the date of the Notice to Proceed and will do all things necessary to construct the work generally described in Recital No. 1 in accordance with the Contract Documents and will complete said work within 45 Calendar Days from the Notice to Proceed date to the satisfaction of the Engineer. Alternates 1 and 2 shall be completed within 30 calendar days, for a cumulative total of 75 calendar days for completion of the work. Page 1 Contract No. C32050 3. Contractor agrees to indemnify, defend and save CITY and its officers, agents and employees, and the Engineer harmless from: a. Any and all liability, claims, damages, losses or injuries to any person or other entity, including injury to Contractor's employees, and all claims which arise from or are connected with the negligent performance of or failure to perform the work or other obligations of this Agreement, or which are caused or which are claimed to be caused by the negligent or intentional acts or omissions of Contractor, its subcontractors, its agents or employees, and, all expenses of investigating and defending against same, b. Any and all liability, claims, damages, losses or injuries to any and all contractors, subcontractors, material -men, laborers, or any other person, firm or corporation furnishing or supplying work, services, materials or supplies in connection with the performance of the Agreement. C. Attention is directed to the General Specifications - Claims, Liability, and Indemnity Agreement/Hold Harmless sections, which specifications are made part of this Agreement as set forth in Agreement paragraph 1, above. d. Attention is directed to Section 6-9, "Liquidated Damages" of the Standard Specifications and is hereby amended to substitute the "City of Palm Desert" in place of "Agency." Liquidated damages shall be $1,000 dollars per calendar day of delay. 4. Should any litigation or arbitration be commenced between the parties concerning the works of improvements as referenced herein, the prevailing party in any such litigation, being the CITY or the Contractor, should be entitled to a reasonable sum for attorney's fees incurred in any such litigation relating to this Contract. 5. This Agreement shall be binding upon all parties hereto and their respective heirs, executors, administrators, successors, and assigns. 6. Contractor shall be paid in the manner set forth in the Contract Documents the amount of its Bid as accepted by CITY, subject to such additions and deductions as may be made pursuant to the Contact Documents and applicable law. Satisfactory Performance: The prime Contractor agrees to pay each Subcontractor under this prime contract for satisfactory performance of its contract no later than 10 days from the receipt of each payment the prime Contractor receives from City of Palm Desert. Any delay or postponement of payment from the above referenced time frame may occur only for good cause following written approval of the City of Palm Desert. Page 2 Contract No. C32050 Release of Retention: The prime Contractor agrees further to release retention payments to each Subcontractor within 30 days after the Subcontractor's work is satisfactorily completed. Any delay or postponement of payment from the above referenced time frame may occur only for good cause following written approval of the City of Palm Desert. 7. Execution of the Agreement by the parties constitutes their agreement to abide by all applicable provisions of the California Labor Code; constitutes contractor's certification that he is aware of the provisions of said Code and will comply with them; and further constitutes Contractor's certification as follows: "I am aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for worker's compensation or to undertake self insurance in accordance with the provisions of that Code, and I will comply with such provisions before commencing the performance of the work of this contract." IN WITNESS WHEREOF the parties hereto have executed or caused to be executed by their duly authorized officials, this Agreement which shall be deemed an original on the date first above written. CONTRACTOR: BY: Signature to be notarized TITLE: CITY: BY: Signature to be notarized TITLE: Mayor of Palm Desert, CA APPROVED AS TO CONTENT: MARK GREENWOOD, P.E. DIRECTOR OF PUBLIC WORKS ATTEST BY: TITLE: ATTEST BY: TITLE: City Clerk of Palm Desert, CA APPROVED AS TO FORM: DAVID J. ERWIN CITY ATTORNEY Page 3 Contract No. C32050 CONTRACTOR ACKNOWLEDGMENT State of California ) ) SS. County of ) On , 20 , before me, a Notary Public, personally appeared 7 who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature CITY ACKNOWLEDGMENT State of California ) SS. County of Riverside (seal) On , 20 , before me, , a Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (seal) Page 4 Contract No. C32050 PERFORMANCE BOND KNOW ALL MEN BY THESE PRESENTS: That whereas the City of Palm Desert has awarded to Cloudburst Engineering, Inc. hereinafter designated as the "Principal", a contract for: DESERT WILLOW IRRIGATION PUMP MOTOR RENOVATIONS PROJECT NO. 850-13 CONTRACT NO. C32050 WHEREAS, said Principal is required under the terms of said contract to furnish a good and sufficient bond for the performance of said contract: NOW THEREFORE, WE, the Principal, and as Surety, are held and firmly bound unto the City of Palm Desert hereinafter called the City, in the penal sum of Dollars ($ ), being 100% of the contract amount in lawful money of the United States of America for the payment of which sum well and truly to be made, we hereby bind ourselves, our heirs, executors, administrators, and successors, jointly and severally, firmly by these presents. THE CONDITION OF THIS OBLIGATION IS SUCH that if the above bounded Principal, his executors, heirs, administrators, and successors, or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants and agreements in the said contract and any alterations thereof made as therein provided, on his or their part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their true intent and meaning, and shall indemnify and save harmless the City, its officers and agents, as therein stipulated, then this obligation shall become null and void; otherwise, it shall be and remain in full force and virtue. And the said Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to terms of the contract or to the work to be performed thereunder or the specifications accompanying the same shall in any wise affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alterations or additions to the terms of the contract or to the work or the specifications. Should it become necessary for the City to institute a lawsuit or any other legal proceeding to enforce the terms and conditions of this bond, then all costs of said proceeding, including attorneys' fees, shall be awarded to the prevailing party. Page 1 Contract No. C32050 IN WITNESS WHEREOF, identical counterparts of this instrument, each of which shall for all purposes be deemed an original thereof, have been duly executed by the Principal and Surety above named, on this day of , 20 SURETY AM INSURANCE COMPANY and/or AGENT ADDRESS TELEPHONE NUMBER State of California ) County of ) On before me, PRINCIPAL MV personalty appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) Page 2 Contract No. C32050 PAYMENT BOND KNOW ALL MEN BY THESE PRESENTS: THAT WHEREAS, the City of Palm Desert (sometimes referred to hereinafter as "Obligee") has awarded to Cloudburst Engineering, Inc. (hereinafter designated as the "CONTRACTOR"), an agreement dated November 15, 2012 described as follows: DESERT WILLOW IRRIGATION PUMP MOTOR RENOVATIONS, PROJECT NO. 850-13, CONTRACT NO. C32050, (hereinafter referred to as the "Contract"); and WHEREAS, said CONTRACTOR is required to furnish a bond in connection with said Contract, and pursuant to Section 9100 et seq. of the California Civil Code; NOW, THEREFORE, we, the undersigned CONTRACTOR, as Principal, and a corporation organized and existing under the laws of the State of , and duly authorized to transact business under the laws of the State of California, as Surety, are held and firmly bound unto the City of Palm Desert and to any and all persons, companies or corporations entitled to file stop notices under Section 9100 of the California Civil Code, in the sum of ($ ), said sum being not less than one hundred percent amount payable by the said Obligee under the terms of the said payment well and truly to be made, we bind ourselves, administrators, successors and assigns, jointly and severally, Dollars (100%) of the total Contract, for which our heirs, executors and firmly by these presents. THE CONDITION OF THIS OBLIGATION IS SUCH, that, if said CONTRACTOR, his or its heirs, executors, administrators, successors or assigns, or Subcontractors, shall fail to pay for any materials, provisions or other supplies, implements, machinery or power used in, upon, for or about the performance of the Public Work contracted to be done, or to pay any person for any work or labor of any kind, or for bestowing skills or other necessary services thereon, or for amounts due under the Unemployment Insurance Code with respect to such work or labor, or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of said CONTRACTOR and his or its Subcontractors pursuant to Section 13020 of the Unemployment Insurance Code with respect to such work and labor as required by the provisions of Section 9100 of the Civil Code, or for any amounts required to be deducted, withheld, and paid over to the Franchise Tax Board or Internal Revenue Service from the wages of employees of the CONTRACTOR or his or its Subcontractors, the Surety or Sureties hereon will pay for the same in an amount not exceeding the sum specified in this bond, otherwise the above obligation shall be void. In addition to the provisions herein above, it is agreed that this bond will inure to the benefit of any and all persons, companies and corporations entitled to serve stop notices under Section 9100 of the Civil Code, so as to give a right of action to them or their assigns in any suit brought upon this bond. The Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the said Contract or to the work to be Page 1 Contract No. C32050 performed thereunder or the Specifications accompanying the same shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract or to the Specifications. No final settlement between the Obligee and the CONTRACTOR hereunder shall abridge the right of any beneficiary hereunder, whose claim may be unsatisfied. CONTRACTOR and Surety agree that if the Obligee is required to engage the services of an attorney in connection with the enforcement of the bond, each shall pay Obligee's reasonable attorney's fees incurred, with or without suit, in addition to the above sum. IN WITNESS WHEREOF, we have hereunto set our hands and seals this day of , 20 PRINCIPAL/CONTRACTOR: (Typed Name of CONTRACTOR) By: (Signature) (Typed Name and Title) The rate of premium on this bond is $ SURETY: (Typed Name of Surety) By: (Signature of Attorney -in -Fact) (Typed Name of Attorney -in -Fact) The total amount of premium charged: $ (the above must be filled in by corporate surety). per thousand. IMPORTANT: Surety companies executing bonds must possess a certificate of authority from the California Insurance Commissioner authorizing them to write surety insurance defined in Section 105 of the California Insurance Code, and if the work or project is financed, in whole or in part, with federal, grant or loan funds, it must also appear on the Treasury Department's most current list (Circular 570 as amended). THIS IS A REQUIRED FORM. Any claims under this bond may be addressed to: (Name, Address and Telephone No. of Surety) (Name, Address and Telephone No. of agent or representative for service of process in California if different from above) Page 2 Contract No. C32050 Acknowledgment State of California County of On before me, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) Page 3 SEND TO: Southern California Edison, Business Incentives sountka,S rauroaNIA P.O. Box 800, Rosemead, CA 91770-0800 E D t S Q N Fax: 626-633-3243 1 E-mail: BusinessIncentives@sce.com I Questions? 800-736-4777 Al,1: 1,50Nfh"7 1,,RVA 140NA 1,a l:crn�wny i This On -Bill Financing (OBF) Application along with an Incentive Application (defined herein) must be submitted and approved prior to purchasing or installing your equipment. Approval of this Application does not guarantee funding. OBF Loan funding requires complete installation of equipment and fulfillment of all terms and conditions contained in this Application. Please read all terms and conditions of this Application carefully before signing, and contact your SCE representative or Contractor for further information. Authorized Agent Company Name Authorized Agent Mailing Address Authorized Agent Representative Name Title SCE Service Account # SCE Customer Account # IDSM Web Confirmation (W-######)* Customer Reference/Site Name Project Site Address Est. Total Project Cost $ Est. Total Project Incentive/Rebate $ Est. Project kWh Savings Est. Project kW Savings *Only required if Application is submitted online. SEND TO: Southern California Edison, Business Incentives sauntcR,N CALOORNIA P.O. Box 800, Rosemead, CA 91770-0800 JE D I S O N' Fax: 626-633-3243 J E-mail: Businesslncentives@sce.com I Questions? 800-736-4777 A„t,,,,aNINTERIM IONAI,' Ump..Y Program Description The On -Bill Financing ("OBF") program is offered by Southern California Edison Company ("SCE") to qualified SCE non-residential service customers ("Customer") to offset the cost of purchasing and installing eligible energy efficiency equipment ("Solutions"). Through OBF, qualified Customers will receive zero percent (0%) interest, no -fee, unsecured financing for Solutions for which incentives and rebates are approved under an eligible SCE energy efficiency program ("Eligible Program").' Financing is available to qualified Customers for up to one hundred percent (100%) of the total actual installed costs of approved Solutions including certain related labor charges, less rebates or incentives received from SCE under the applicable Eligible Program. The minimum loan amount per service account available through OBF is five thousand dollars ($5,000). The maximum OBF loan amount available per service account is (i) two hundred fifty thousand dollars ($250,000) for government and institutional taxpayer -funded Customers,2 and (ii) one hundred thousand dollars ($100,000) for commercial Customers, including general business, industrial and agricultural entities. Customers may qualify for multiple loans under OBF, provided that the aggregate dollar amount of the loans does not exceed the maximum OBF loan amount per service account stated above. The maximum loan term for a taxpayer funded government or institutional Customer is ten (10) years (or the expected useful life' of the installed Solutions, whichever is shorter). The maximum loan term for a commercial Customer is five (5) years (or the expected useful life of the installed Solutions, whichever is shorter). The monthly loan repayment amount will be approximately equal to the estimated monthly dollar savings that the Customer is expected to receive through their utility bill due to the Solution's estimated energy savings. The maximum loan amount will be equal to the monthly loan repayment amount multiplied by the maximum loan term (or the expected useful life of the installed Solutions,4 whichever is shorter). The fixed monthly loan repayment will be invoiced as a line item as on Customer's SCE bill. In no event will the Customer be entitled to receive a loan amount in excess of one hundred percent (100%) of the total actual installed Solution costs, less rebates or incentives received for such Solutions under the Eligible Program(s). If the projected loan term is beyond the OBF loan term limit or exceeds the installed Solutions' expected useful life, a loan of a lesser amount may be approved in SCE's sole discretion. The OBF program has a limited budget. SCE will accept this On -Bill Financing Application ("OBF Application") from qualified SCE Customers and will reserve funds on a first -come, first -served basis until funds are depleted or the OBF program is terminated, whichever occurs first. This OBF Application is for approval of a reservation of loan funds only. Issuance of OBF loan funds is conditioned on Customer's installation of approved Solutions in accordance with the selected Eligible Program(s), satisfaction of all Eligible Program requirements, and execution by Customer of the On -Bill Financing Agreement. The terms and conditions of SCE's OBF program may be modified or terminated without prior notice. Eligible Programs include SCE's Express Solutions pending (not yet installed) or Customized Solutions programs. See www.sce.com/onbill for details. Demand Response Technology Incentives Program is not an Eligible Program. To ensure eligibility of your planned Solution(s) please review the Express Solution and Customized Solutions eligibility requirements in the Energy Management Solutions Directory at www.scc.coni/solutions. A taxpayer funded Customer is defined as a Customer using tax revenue to pay utility bills associated with a service account, included but not limited to cities, counties, public or state -funded schools, public libraries and government offices. 3 The expected useful life of a Solution is an average length of time a Solution may be operational based on historical analysis. 4 If there is more than one Solution installed, the expected useful life of all Solutions will be that of the Solution which contributes the greatest kWh savings for the project. SEND TO: Southern California Edison, Business Incentives soutweus ctttroaniA P.O. Box 800, Rosemead, CA 91770-0800 E D I ►O N' Fax: 626-633-3243 1 E-mail: Business Incentives@sce.com I Questions? 800-736-4777 A,, WSCIN,., IERN,,nt,NALR CI—P.- Eligibility To qualify for the OBF program, Customer must receive an incentive and/or rebate through SCE pursuant to an Eligible Program. Customer must satisfy all requirements of each selected Eligible Program, including but not limited to execution of such Eligible Program's incentive application (defined below) and, if applicable, an Eligible Program agreement (see OBF Application Process, 3.A. below). The applicable Energy Management Solutions Incentives Application(s) for Business Customers or Energy Management Solutions Incentives Application for State of California Partnership (both referred to as "Incentive Application") executed by Customer are hereby incorporated into this OBF Application by this reference. If there is any conflict between the terms and conditions of any Eligible Program Incentive Application and the terms and conditions of this OBF Application or On -Bill Financing Agreement, the terms and conditions of this OBF Application and the On -Bill Financing Agreement shall control. To qualify for the OBF Program, the Customer must also satisfy each of the following conditions: A. Customer must be an existing commercial, industrial, agricultural, government or institutional Customer of SCE. B. Customer must have been an SCE customer in the same business (i.e. maintained an active SCE account) for at least 24 consecutive months prior to the start of participation in OBF. C. Customer must be in good credit standing with SCE including: (1) no disconnect notice in the past 12 months; (2) no 48-hour shut-off notices in the past 12 months; (3) no returned payments in the past 12 months; and (4) not have a deposit on its account to establish or reestablish credit in the past 12 months. OBF Application Process: Applying Customers must follow the following steps. A. The Customer or their Authorized Agent, if designated, must submit a completed and signed Energy Management Solutions Incentives Application(s) for Business Customers or Energy Management Solutions Incentives Application for State of California Partnership (both referred to as "Incentive Application") along with this 2010-2012 On -Bill Financing Application ("OBF Application"). Submit both the Incentive Application and this OBF Application on-line at www.sceonlineapp.com.5 SCE will use both applications to determine if a Customer is eligible to participate in the OBF program based on the Customer's credit -worthiness and the incentive eligibility of selected energy efficiency Solutions. Incomplete or incorrect applications cannot be processed. Electronic, scanned or facsimile signatures may be used for the purposes of enforcing the terms of this Application as though they were originals. A Customer may withdraw this OBF Application for any reason by providing SCE with a written notice of such withdrawal. B. If the Customer meets the OBF eligibility requirements and the Customer's proposed Solutions set forth in the Incentive Application qualify for rebates and/or incentives, then SCE will reserve OBF loan funds based on the eligible Solutions. A reservation of funding does not guaranty loan funding. Funding shall occur only upon satisfaction of all requirements set forth in this Application. If a Customer's OBF Application is denied, SCE will provide the Customer with a written statement of the specific reasons for the denial within 30 days of the denial. s For Customers without the capability to submit this OBF Application online, the Incentive Application and this OBF Application may be submitted by mail to Southern California Edison, Business Incentives, P.O. Box 800, Rosemead, CA 91770-0800, by email to Businesslncentives@sce.com or by fax to 626-633-3243. Such submittal may increase processing time of this OBF Application and thus delay a Customer's priority position to reserve OBF Funds. SEND TO: Southern California Edison, Business Incentives SOUMEkN CAUFORNIA P.O. Box 800, Rosemead, CA 91770-0800 E D I SO N` Fax: 626-633-3243 1 E-mail: BusinessIncentives@sce.com I Questions? 800-736-4777 ,,,,;p„O:Nf LRNA,M,,AI.• L,t:m. pu,,, C. An SCE engineer or approved third -party inspector will conduct an inspection of Customer's existing equipment consistent with the "Site Access" provision of the Incentive Application. If the existing equipment has been removed, Customer's project will not be eligible for OBF funding, and may not qualify for an SCE rebate/incentive under an Eligible Program. D. Upon notice from SCE of qualification for OBF and reservation of funding, the Customer will schedule and install the SCE -approved Solution(s) and when completed, shall submit to SCE a "Project Installation Report," along with an itemized proof of purchase, including purchase and installation dates along with specification sheet(s) for the installed Solution(s). E. SCE will complete a technical review, including a post -installation inspection and verification of the eligible installed Solution(s) consistent with the "Site Access" provision of the Incentive Application. The final loan amount will be re -calculated by SCE at completion and approval of installation to reflect any changes in the actual installed costs, expected useful life, or estimated energy savings of the Solutions. F. Customer must review and sign the On -Bill Financing Agreement provided by SCE specifying Customer's obligations for repayment and all other terms and conditions, and shall submit it to SCE. The signed and dated On -Bill Financing Agreement must be received by SCE no later than December 31, 2012. G. Upon receipt of the On -Bill Financing Agreement and satisfaction of all remaining OBF program requirements, including compliance with the selected Eligible Program requirements, SCE will process payment of Customer's OBF loan funds and issue a loan check payable to the Customer (or the Authorized Agent contracting on behalf of Customer and designated in this OBF Application) to be sent by mail. H. The initial OBF monthly loan installment will appear on the Customer's SCE bill within sixty (60) days of the effective date of the On -Bill Financing Agreement and will continue for the term of the loan, until the loan balance is paid off, or as may otherwise provided in the On -Bill Financing Agreement. DISCLAIMER: THE FEDERAL EQUAL CREDIT OPPORTUNITY ACT PROHIBITS CREDITORS FROM DISCRIMINATING AGAINST CREDIT CUSTOMERS ON THE BASIS OF RACE, COLOR, RELIGION, NATIONAL ORIGIN, SEX, MARITAL STATUS, AGE (PROVIDED THE CUSTOMER HAS THE CAPACITY TO ENTER INTO A BINDING CONTRACT); BECAUSE ALL OR PART OF THE CUSTOMER'S INCOME DERIVES FROM ANY PUBLIC ASSISTANCE PROGRAM; OR BECAUSE THE CUSTOMER HAS IN GOOD FAITH EXERCISED ANY RIGHT UNDER THE CONSUMER CREDIT PROTECTION ACT. THE FEDERAL AGENCY THAT ADMINISTERS COMPLIANCE WITH THIS LAW CONCERNING THIS CREDITOR IS THE FEDERAL TRADE COMMISSION, EQUAL CREDIT OPPORTUNITY, WASHINGTON, DC 20580. Verification and Certifications I, the Customer and applicant hereunder, affirm that I have read, understand and agree to all of the specific OBF terms, conditions and other requirements and restrictions set forth in this OBF Application. I certify that all of the information I have provided in this OBF Application is true, correct and complete. I understand that I must meet all eligibility criteria and requirements of both the OBF Program and my selected Eligible Program(s) in order to participate in OBF. I further understand that if the scope of my Solution(s) changes, a new OBF Application must be submitted and will be subject to funding availability. SCE reserves the right to request additional information to verify Customer's eligibility in OBF. Signature of Customer Date Signature of Authorized Agent Date SEND TO: Southern California Edison, Business Incentives SOUHILRN (ALHORNIA P.O. Box 800, Rosemead, CA 91770-0800 E D I S O N Fax: 626-633-3243 1 E-mail: Businesslncentives@sce.com I Questions? 800-736-4777 Al<1,01SON 8117BNAt9 INAL" I, as Customer and applicant, further certify that if an Authorized Agent is listed above, I have entered into a contract with said Authorized Agent for the installation of energy efficiency Solutions at the project site listed above. I understand that: (1) SCE makes no warranty or representation about the Authorized Agent's qualifications; (2) I am solely responsible for selecting the Authorized Agent to implement the project on my behalf, (3) the Authorized Agent is an independent contractor and not authorized to make any representations on behalf of SCE; and (4) that SCE will have no role in resolving any disputes between me, the Authorized Agent and/or any other third parties. I further authorize all contracts and correspondence to be sent directly to the Authorized Agent specified below. I further authorize my Authorized Agent to request and receive from SCE the Customer account information for the SCE account listed in this Application, including billing records, billing history, meter usage date, verification of balances on the account, discontinuance notices, and verification of rate and related information, and to schedule any required inspections by SCE at the project site in connection with this OBF Application or the Eligible Program(s). Signature of Customer Date Form of Payment: ❑ OBF Funds to Customer ❑ OBF Funds to Authorized Agent Payment Release: As the Customer, I am authorizing this payment of my OBF Funds to the Authorized Agent and I understand that I will not be receiving the OBF check from SCE. I also understand that my release of this payment to the Authorized Agent does not exempt me from the requirements outlined in this OBF Application. Signature of Customer Date PLEASE MAKE A COPY OF THIS DOCUMENT FOR YOUR RECORDS The OBF Program is funded by California utility customers and administered by Southern California Edison under the auspices of the California Public Utilities Commission. © 2010 Southern California Edison. All copyright and trademark rights reserved. Southern California Edison On -Bill Financing Agreement SOUTHERN CALIFORNIA EDISON` An EDISON INTERNATIONAL' COMP"y Southern California Edison Form# 14-791 6/2010 On -Bill Financing Agreement This On -Bill Financing Agreement to ("OBF Agreement") is entered into on 20 (the "Effective Date") by and between the undersigned customer ("Customer") and Southern California Edison Company ("SCE") (each a "Party," collectively the "Parties"). Recitals 1. Customer and SCE entered into the Energy Management Solutions Incentives Application for Business Customers on or about , 20_ and if applicable, the Customized Solutions Agreement (individually or collectively referred to as "EMS Agreement"), which is/are attached hereto and incorporated herein by reference 2. Customer owns, leases or rents the property listed in the EMS Agreement as the Site and maintains a service account with SCE for electric service. Customer has completed installation of certain energy efficient equipment ("Equipment") at the Site as set forth in the EMS Agreement and has accepted the equipment as being operational and in good working order. 3. In Decision 09-09-047, the California Public Utilities Commission authorized SCE to provide zero percent interest financing for the installation of certain energy efficient equipment, which is to be repaid over a specified period through the Customer's electric utility bill ("On -Bill Financing"). 4. Customer desires to enter into this OBF Agreement in order to participate in SCE's On -Bill Financing program and Customer agrees to repay SCE the Amount Financed (as defined under "Loan Terms", below) through the Customer's SCE utility bill pursuant to the terms and conditions of this OBF Agreement. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the Parties agree as follows: Terms and Conditions Defined Terms: Except as the context otherwise requires, capitalized terms used in this OBF Agreement without definition shall have the same meanings as are set forth in the EMS Agreement. Amount Financed: Within thirty (30) days after the Effective Date, SCE will provide a payment for the Amount Financed to Customer or to a third -party payee designated by Customer under the Loan Terms, below. Customer's designation of a third -party payee may not be changed or revoked. Loan Terms: Amount Financed "Amount Financed"): $ .00 Interest Rate: 0% Fees: 0 Months to Pay: Monthly Payment: $ Service Account to be Billed: Designated Third -Pa Payee if any): Address of Designated Third-PartPayee: Southern California Edison Form# 14-791 6/2010 Promise to Pay: Customer promises to pay SCE the Amount Financed in equal monthly installments as set forth in the section above (Customer's "Loan Obligation"). The first Monthly Payment of Customer's Loan Obligation will appear within sixty (60) days from the Effective Date on Customer's SCE utility bill for the Service Account listed above. Manner of Payment: Customer's Monthly Payment amount will appear as a line item labeled "EE OBF Installment Charge" on the monthly SCE utility bill for Customer's Service Account. Customer may pay the Loan Obligation in the monthly installments or pre -pay the Loan Obligation in one lump sum without penalty, but pre -payments for less than the remaining balance will not be allowed. Customer's Loan Obligation will appear on Customer's monthly SCE utility bill for the number of months set forth above, or until the Loan Obligation is paid in full by Customer, whichever occurs first. Customer shall make payments to SCE as directed in the SCE utility bill. Partial Payments: If Customer is unable to make a full payment of the Loan Obligation in any given month, payment arrangements may be made at SCE's sole discretion. Any partial payments will be applied in equal proportion to the energy charges and the Loan Obligation, and the Customer will be considered to be delinquent and in default of both the energy bill and the Loan Obligation. Late Payments: No late payment charges or interest will be assessed for delinquent payments on the Loan Obligation. However, SCE may assess late payment charges for delinquent payments of energy charges pursuant to SCE's Rule 9 which is incorporated herein by reference. Returned Payments: SCE may require payment of a $10.00 Returned Check Charge for any check returned from Customer's financial institution unpaid. The Returned Check Charge will also apply to any forms of payment that are subsequently dishonored. Discontinuance of Service: Amounts due under this OBF Agreement will be amounts deemed due under each SCE utility bill to the Customer's Service Account, and a default under this OBF Agreement will be treated as a default under the Customer's Service Account. Customer's Loan Obligation is subject to the discontinuance provisions of SCE's Rule 11, Discontinuance and Restoration of Service, Section B, Nonpayment of Bills or Summary Bills which is incorporated herein by reference. Breach and Acceleration: Any breach by Customer under the EMS Agreement or this OBF Agreement shall constitute a breach under all of the above referenced agreements. For purposes herein, SCE may determine the OBF Agreement to be breached and Customer to be in default if Customer: (1) sells, assigns or otherwise transfers ownership, possession or title of the Site or the Equipment, (2) fails to pay the Monthly Payment amount when due, (3) closes, discontinues or otherwise causes the termination of the Service Account, or (4) otherwise breaches this OBF Agreement and/or the EMS Agreement, and the breach is not cured as specified therein. Notwithstanding anything to the contrary in the EMS Agreement, a breach and default as set forth in this section shall not be subject to any additional cure period. Following a breach as set forth in this section, SCE shall have the right to declare the entire unpaid balance of the Loan Obligation immediately due and payable. Purchase Money Security Interest: Customer hereby agrees that SCE may, but is not obligated to, file a UCC-1 ("Financing Statement") against the Equipment to secure Customer's obligation to repay the Amount Financed. Customer agrees to execute any and all documents in connection with the Financing Statement in order for SCE to perfect its security interest in the Equipment. Customer agrees that SCE is not waiving any of its rights of recovery as against the Customer should SCE elect to file a Financing Statement. Southern California Edison Form# 14-791 6/2010 Confession of Judgment: Customer irrevocably authorizes and empowers SCE and SCE's attorneys, upon breach and default by Customer as described in the preceding section, to appear in any state or federal court in Los Angeles County, California, as Customer's attorney -in -fact and confess judgment against Customer by entry of a confession of judgment pursuant to Code of Civil Procedure § 1132 et. seq., or by any other appropriate means, for the full amount due plus all costs of collection, including without limitation court costs and reasonable attorneys' fees. No single exercise of the foregoing power to confess judgment will be deemed to exhaust the power, whether or not any such exercise shall be held by any court to be invalid, voidable, or void; but the power will continue undiminished and may be exercised from time to time as SCE may elect until all amounts owing under this OBF Agreement have been paid in full. Modification: Any change to this OBF Agreement must be in writing and signed by Customer and SCE; except that during any given month, if Customer is unable to make full payment on the Loan Obligation, payment arrangements may be made at SCE's sole discretion without modifying this OBF Agreement in writing. Any written modification or amendment will not be effective unless and until signed by SCE or such condition is waived by SCE in its sole and absolute discretion. Term and Termination: It is the Parties intent that the term of this OBF Agreement and the EMS Agreement run concurrently. Therefore, the OBF Agreement shall continue into effect until the Loan Obligation is paid in full. Assignment: Notwithstanding anything to the contrary in the Agreement, Customer may not assign its rights or delegate its duties under the Agreement. Additional Representations: Each person signing this OBF Agreement represents and warrants that he or she is duly authorized and has the legal capacity to execute and deliver this OBF Agreement on behalf of Customer, and to perform their obligations under this OBF Agreement. Customer further represents and warrants that if it is a legal entity, it is in good standing in its state of formation. Miscellaneous: Except as otherwise specifically provided herein, all terms, provisions, covenants, representations, warranties, agreements and conditions of the EMS Agreement shall remain unchanged and in full force and effect. Should a conflict exist between this OBF Agreement, the EMS Agreement and the documents incorporated by reference, this OBF Agreement shall control. This OBF Agreement shall be construed and interpreted in accordance with, and shall be governed and enforced in all respects according to, the laws of the State of California. This OBF Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. If any one or more of the provisions contained in this OBF Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, then this OBF Agreement shall be construed as if such invalid, illegal or unenforceable term or provision had never been contained herein and all other provisions of this OBF Agreement shall be construed to remain fully valid, enforceable and binding on the parties. The Recitals set forth above are hereby incorporated herein by reference. [Remainder of page intentionally left blank] Southern California Edison Form# 14-791 6/2010 IN WITNESS WHEREOF, the Parties have executed this OBF Agreement as of the Effective Date. Customer: Authorized Representative: Title: Signature: Date: Business Address: Telephone No. Fax No. E-Mail Address: Southern California Edison Company: Authorized Representative: Title: Signature: Date: Business Address: Telephone No. Fax No. E-Mail Address: Southern California Edison Form# 14-791 6/2010