This Participating Aggregator Agreement (the “Agreement”) is made
by and between the City and County of San Francisco, acting by and through its
Public Utilities Commission, CleanPowerSF (hereinafter “CleanPowerSF”) and the
business identified on this form (“Aggregator”), having its principal place of
business located at the Address provided on this form. This Agreement is
effective upon the date CleanPowerSF provides written notice of acceptance into
the program. CleanPowerSF and Aggregator
are each individually referred to herein as a “Party” and collectively as the
“Parties.”
RECITALS:
WHEREAS CleanPowerSF implements the Business Savings Program
(the “Program”) and is responsible for Aggregator enrollment, Project Submittal
support and approval, incentive budget management, hosting web-based Program
tools, and project measurement and verification (“M&V”).
WHEREAS Aggregator is a project developer who performs work
that leads to energy load modification at Participant sites, including energy
efficiency interventions.
WHEREAS a Participant is a qualifying CleanPowerSF business customer
that agrees to work with an aggregator to achieve Energy Efficiency Savings.
WHEREAS Aggregator has responsibility for recruitment, project
identification, Participant interactions, project design and implementation,
energy savings and load impacts and compliance with the Program requirements;
Aggregator receives Program incentives directly and has latitude to utilize a
wide variety of business models to finance and actualize load modification
impacts at Participant sites.
WHEREAS This Agreement establishes requirements for
Aggregators to earn Program incentives through the Program for qualified
projects as a Participating Aggregator. Submission of this completed
Participating Aggregator Agreement, including all requested information and
Exhibits, is a condition of participation in the Program. Aggregators must
provide all required information in full in order to be eligible to enroll and
participate.
NOW, THEREFORE, in consideration of the mutual covenants
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree to the
following:
1. DEFINED TERMS
The following capitalized terms shall have the meanings
specified in this Section 1.
“Agent” -- means any authorized representative, contractor,
subcontractor, consultant, or designee acting for or on behalf of CleanPowerSF in
connection with the performance of obligations or exercise of rights under this
Agreement.
“Applicable Law(s)” -- All local, state, and federal laws,
rules, regulations, ordinances, codes, statutes, regulations, and lawful orders
of Governmental Authorities that are relevant to the proper and safe
performance of the Work. Applicable Laws include but are not limited to Privacy
& Data Security Laws and all applicable regulations, rules, orders,
decisions, and requirements of the FERC, NERC, United States Department of
Transportation, California Independent System Operator, and the California Public
Utility Commission.
“City” -- means the City and County of San Francisco.
“CleanPowerSF” -- means the Community Choice Aggregation
program operated by the San Francisco Public Utilities Commission, a
department of the City and County of San Francisco.
“CleanPowerSF Terms and Conditions” – means the requirements
with which Aggregators must agree to comply as a condition of participating in
the Program. This includes attached
Exhibit A to this Agreement, “Program Requirements,” the requirements in the
Program Handbook and the requirements in the Project Application.
“Confidential Information” -- The Participant’s identifiable information (PII), energy use
data, billing data, account information and information relating to their
facilities, including any such equipment, processes, products, specifications,
designs, records, data, software Programs, finances, technologies, trade
secrets, marketing plans or manufacturing processes or products; and identifying
information as defined in Privacy & Data Security Laws If in doubt about
whether certain information is Confidential Information, Aggregator agrees to
treat such information as Confidential Information. Aggregator will share
Confidential Information strictly for the purpose of carrying out its
obligations to perform the work and will restrict access to Confidential
Information to those of its personnel with a need-to-know basis. Aggregator
agrees to implement and maintain reasonable security procedures and practices
to protect the unauthorized disclosure, destruction, and/or use of Confidential
Information.
“Energy Savings” -- The annual/first year reduction in kWh
over the baseline year, resulting from the implementation of a Project at a Participant’s
site.
“Enrollment Group” -- A cohort of projects that have been
completed by an Aggregator in each calendar quarter. Please refer to the Measurement and
Verification Plan for details.
“Measurement and Verification” --The set of processes to
determine project and/or Program energy savings impacts. See Measurement and
Verification Plan for details.
“Normalized Metered Energy Consumption (NMEC)” -- A measure
of energy savings adjusted to a common set of conditions, usually based on
weather. NMEC methods may be applied for individual sites or for populations of
sites with a comparison group or method that accounts for exogenous effects.
“Participant” -- A CleanPowerSF business customer that
agrees to work with an aggregator to achieve Energy Efficiency Savings.
“Participating Aggregators” -- Aggregators that agree to be
bound by the Program terms and conditions defined in this Agreement, the
CleanPowerSF Business Savings Program Handbook and M&V Plan.
“Performance Period” -- The 12-month period typically
starting on the first day of the calendar quarter immediately following the approval
of the Project Completion Package. The
Performance Period will be defined in the Performance Period Notification
Letter.
“Personal Information” -- Means information that (i)
identifies, relates to, describes, is reasonably capable of being associated
with, or could reasonably be linked, directly or indirectly, with a particular Participant;
and (ii) includes personal information or personal data or other such similar
terms and meaning as defined under applicable Privacy & Data Security Laws.
“Prevailing Wage” -- As defined by the California Department
of Industrial Relations, “the basic hourly rate paid on public works projects
to a majority of workers engaged in a particular craft, classification or type
of work within the locality and in the nearest labor market area (if a majority
of such workers are paid at a single rate). If there is no single rate paid to
a majority, then the single or modal rate being paid to the greater number of
workers is prevailing”.
“Privacy & Data Security Laws” -- means all applicable
laws, rules, regulations, directives, and governmental requirements in San
Francisco City and County, California and other States of the United States and
Federal laws that relate in any way to the confidentiality, collection, use, processing,
storage, sharing, combining, selling, disposal, privacy, or security of
Personal Information including, but not limited to, the California Consumer
Privacy Act (CCPA) and the California Privacy Rights Act (CPRA) as currently in
force and as amended, updated, supplemental, or replaced from time to time.
“Program” -- Refers to the Business Savings Program, an
energy efficiency Program implemented by CleanPowerSF. The Aggregator enrolls in the program by
signing this Participating Aggregator Agreement.
“Program Handbook” -- A description of the Program that
includes eligibility criteria, eligibility verification process, incentive
rates and structure, incentive calculation methodology, various schedules and
timelines, quality assurance and control plans, and other details.
“Project” -- A measure or intervention intended to modify
the energy consumption of a customer site.
“Project Implementation Period” -- The Project
Implementation Period is the period between the Baseline Period and the
Performance Period and covers the time when measures are installed and the
project construction is completed. The Project Implementation Period may also
include time to adjust, fine-tune, or commission the measure as part of the
construction process.
“Project Submittal” -- refers to an Aggregator submitting a
complete project application with all required documentation (as outlined in
the application checklist and/or other Program guides) to be reviewed by the
Program.
“San Francisco Environment Department” or “SFE” -- San Francisco
Environment is a department within the City and County of San Francisco,
providing efficient, good government that leads, collaborates, and reduces the
effects of climate change. SFE is a global leader, recognized worldwide for
its climate policies and programs, which move the City toward zero waste,
reduce toxic chemical hazards, advance environmental justice, promote
sustainable transportation modes, expand clean energy infrastructure, and green
our built environment.
“San Francisco Public Utilities Commission” or “SFPUC” -- The
San Francisco Public Utilities Commission is a department of the City and
County of San Francisco, established by a new city charter in 1932 to manage
the municipality's utilities. It operates as a public agency that provides
retail drinking water, wastewater, and electric power services to the City of
San Francisco, while also delivering wholesale water to 1.9 million customers
in three other San Francisco Bay Area counties. SFPUC operates CleanPowerSF.
"Services” or “Work” -- Work required by Aggregator to
furnish and install qualifying energy efficiency measures at eligible customer
sites in accordance with the Program requirements to deliver desired Program
benefits.
2. AGGREGATOR RESPONSIBILITIES
Aggregators must comply with all the requirements, policies,
and rules in the Program Handbook, CleanPowerSF Business Savings Program M&V
Plan, and related documents, along with following terms and conditions.
Responsibilities in the section are subject to update if CleanPowerSF
notifies Aggregators via email and website posting.
Aggregators are responsible for:
2.1 PROJECT SUBMITTAL:
(a) Project eligibility will be
determined in two steps. First, the Participating Aggregators instruct potential
Participants to submit a Request for Customer Eligibility through the online form. The
Participant must sign the form acknowledging the terms and conditions
pertaining to Program participation, including site access and data sharing.
The Program will check the customer information, accounts, NAICS codes, and
‘modelability’ of the customer’s energy use data to ensure it meets Program
criteria. CleanPowerSF will make final determination of eligibility after the
complete project application is submitted. The Participant and the identified
Aggregator will receive a Notification
of Eligibility that states a customer’s eligibility, or it will identify
issues that need to be addressed prior to accepting the customer as a
Participant in the Program.
(b) The Aggregator will submit each
Project Application for Program review and approval. CleanPowerSF will conduct
additional eligibility checks per the Program Handbook.
(c) Aggregator shall follow
procedures defined in the Program Handbook to submit Projects (a “Project
Submittal”) for Program review, savings evaluation and incentive funds
commitment. Aggregator shall complete Program training prior to submitting
projects for Program incentive reservation; recorded training will be available
on the website. Required project data includes, but is not limited to, Participant
and meter information, measure savings and load impacts, supporting
calculations, schedule, and planned demand response Program enrollment. All
data furnished by Aggregator to CleanPowerSF, pursuant to this Agreement, will
be made in good faith, and be true, accurate and subject to verification.
Aggregator shall comply with all applicable rules and standards as set forth in
the Program Handbook, and CleanPowerSF Business Savings Program M&V Plan,
and related documents. Upon Project Application approval, CleanPowerSF will
provide Aggregator with an incentive reservation letter. Incentive estimates
are used by the Program to manage the incentive budget. Actual incentive amounts will be determined
per the processes described in the Program Handbook.
(d) Aggregator shall provide a
signed Project Application for each project submitted to the Program.
2.2 PROJECT IMPLEMENTATION: During
the Project Implementation Period, Aggregator shall implement each approved
Project as described in the Project Submittal. Aggregator shall notify CleanPowerSF
of changes in project scope, following the Project Implementation Period after
the measure is installed and commissioned, so that CleanPowerSF may determine,
in their sole discretion, whether adjustments shall be made to the project file
and incentive reservation. Aggregator shall not initiate Project Implementation
Period prior to written approval from CleanPowerSF. Projects must be installed
no later than the date communicated by CleanPowerSF in writing, unless CleanPowerSF
notifies Aggregators of a subsequent new date in writing. Aggregator shall
obtain required permitting and licensing certifications upon request.
2.3 PROJECT COMPLETION
NOTIFICATION: Aggregator shall promptly notify CleanPowerSF upon completion of
the Project Implementation Period via submittal of the Project Completion
Package. Aggregator shall provide CleanPowerSF
with final installed project information as specified in the Program Handbook.
Aggregator shall furnish required permitting and licensing certifications upon
request.
2.4 QUALITY ASSURANCE: Aggregator
shall grant access to all information requested by CleanPowerSF so that they
may perform quality assurance and quality control (QA/QC”) of project
applications and perform select site inspections and/or verifications of
installation, as needed, to ensure the work receiving Program funds meets
Program requirements. Projects may be selected for remote or on-site
inspections based on Program requirements, risk management strategies, and to
ensure the Program goals and quality standards are met. CleanPowerSF may coordinate
inspections with the Aggregator and will notify Aggregator of any corrective
actions identified. Aggregator shall comply with all requirements in the
Program documentation, including but not limited to the CleanPowerSF Terms and
Conditions, project review process and requirements, Program Handbook, M&V
Plan, and related documents. Aggregator data access will be restricted to view only,
and Aggregator agrees not to download, copy, screenshot, or otherwise copy data
provided or take any steps to circumvent these restrictions. Once a project is approved by the Program,
formal communications will be sent to the Aggregator in accordance with the
steps in the Program Handbook.
2.5 DEMAND REPONSE PARTICIPATION:
Aggregator agrees that the Participant may participate in demand response
(“DR”) events during the Program M&V period. DR events are temporary
changes in electricity consumption by Participant in response to signals or
incentives from PG&E. Aggregator must disclose any planned separate Demand
Response Program dual participation during Project Submittal for each site, or
any DR enrollments during the M&V period. Participation in the Program does
not hinder or violate the Aggregator’s obligations to deliver DR resources in
other markets (Programs, CAISO, contracts, etc.).
2.6 PERMITTING AND LICENSING:
Aggregator shall comply with Public Utilities Code (“PUC”) Section 399.4 (b)
(1) and (2), including but not limited to a) Certification that project
complies with applicable permitting requirements, including any applicable specifications
or requirements of Title 24 of the California Code of Regulations; b)
Certification that if an aggregator performed the installation or improvements,
the aggregator holds the appropriate license for the performed; c) Supply proof
of permit closure for an incentive related to purchase or installation of
central air conditioning or a heat pump, and their related fans.
2.7 TRAINING RECORDS: Aggregator
shall maintain records demonstrating completed training and any associated
assessments required to perform the Services or Work in accordance with this
Agreement, Applicable Law, or the relevant certifying organization. The
maintenance of such information shall include copies of certificates, licenses,
and other materials demonstrating the Services or Work is and will be performed
by qualified individuals. Training and qualification records must be provided
to CleanPowerSF within 48 hours of request.
2.8 SAFETY: Aggregator shall, at
all times, conduct their work in a safe manner and possess the technical
expertise and capacity to provide the necessary services in connection with the
Program and each project. If CleanPowerSF
at any time observes Aggregator performing Services or Work in an unsafe
manner, or in a manner that may, if continued, become unsafe, CleanPowerSF shall
have the right to require Aggregator to stop the work affected by the unsafe
practice until corrective action is taken so the Services or Work performance
has been rendered safe.
2.9 RIGHTS TO ACCESS PARTICIPANT SITES:
Aggregator shall be responsible for obtaining any and all access rights from Participants
and other third parties to the extent necessary to perform services and shall
procure any and all access rights in order for CleanPowerSF, SFE,
representatives and agents to inspect the Services or Work. Access rights must
be provided to CleanPowerSF or their assigned agents within 5 days of notice.
2.10 RIGHT TO ACCESS CUSTOMER DATA:
Aggregator shall obtain any and all access rights from Participants and other
third parties to the extent necessary to implement the Program and to allow CleanPowerSF,
representatives and agents to inspect the projects or evaluate the Program.
Aggregator may be requested by CleanPowerSF to coordinate data access including
facilitating Participant approving CleanPowerSF’s access to Participant energy
data by signing the request for eligibility form acknowledging the terms and
conditions pertaining to Program participation, including site access and data
sharing.
2.11 AVAILABILITY OF INFORMATION:
Aggregators shall keep accurate records and books of accounts including, but
not limited to, financial and non-financial records of required actions under
this Agreement such as training, background checks, and document retention and
disposal requirements, and shall preserve all such records and books of
accounts and make them available for audit for a period of five (5) years from
the date of final payment under this Agreement. This includes paid invoices and
canceled checks for purchased materials and project-related charges.
2.12 DOCUMENT RETENTION AND
PRODUCTION REQUIREMENTS: Aggregator shall maintain accounting records and other
evidence pertaining to costs incurred and hours worked on the Program and shall
make the records available to CleanPowerSF at all reasonable times during the
term of this Agreement and for not less than five (5) years from the date of
the final payment to Aggregator for its work on the Program. At CleanPowerSF’s
’s request, Aggregator shall deliver a copy of any or all original records
required to be retained under this Agreement.
2.13 MISREPRESENTATION OF PROGRAM,
COST, OR PRICING DATA. The knowing misrepresentation of cost or pricing data by
Aggregator shall be considered a material breach of this Agreement.
2.14 “CUSTOMER SERVICE"
Aggregator shall provide customer service in a professional, courteous, and
timely manner at all times during the term of this Agreement. Aggregator agrees
to maintain high standards of customer care, including but not limited to: (a)
promptly responding to inquiries and requests from CleanPowerSF and/or Participant;
(b) communicating clearly, respectfully, and consistently with all CleanPowerSF
staff, agents, representatives, and third parties; (c) addressing complaints or
concerns in a constructive and solution oriented manner; and (d) ensuring that
all personnel involved in the performance of this Agreement are trained to
uphold these customer service standards. CleanPowerSF may provide feedback on
the Aggregator’s customer service performance and may require corrective action
if service levels are deemed unsatisfactory. Repeated failure to meet these
standards may be considered a breach of this Agreement.
2.15 WARRANTIES AND WORKMANSHIP:
Aggregator warrants and shall warrant in its agreement with any Participant that
any Services or Work shall be done with the degree of skill and care required
by current, good and sound professional procedures and practices, in
conformance with prevailing generally accepted professional and industry
standards that are appropriate for the purposes set forth under this Agreement.
Aggregators warrant that the equipment, material and parts furnished shall be
of the kind and quality that is free of defects in workmanship, material,
design, and title, shall be of good and merchantable quality, and shall be fit
for its intended purpose. When applicable, Aggregators shall repair or replace
at their expense any part of the Services or Work that develops defects due to
faulty material or workmanship within one year after being placed in operation.
Aggregator shall, at its expense and as applicable, repair or replace such
Services or Work damaged as the result of the defects or repairing and hold
CleanPowerSF harmless from any and all repair expenses.
2.16 NO PUBLIC RELEASE OF RESULTS:
Aggregator agrees to not publicly release any results of the Services or Work
resulting from this Agreement, unless CleanPowerSF provides written approval that
the information, documentation, and any other materials can be released. Under no circumstances shall any release of
information present any material findings not reasonably inferable from the
data.
2.17 THIRD PARTY LICENSES:
Aggregator represents and warrants any third-party materials made available to
CleanPowerSF in accordance with this Agreement comply with any such
corresponding and applicable third-party licenses, terms of use, and policies
and procedures.
2.18 INFRINGEMENT PROTECTION:
Aggregator represents that any materials used, or otherwise provided, as a
Deliverable under this Agreement, do not infringe upon the copyright, patent or
license, or otherwise violate the proprietary rights, including trade secret
rights, of any person or entity.
2.19 NO PUBLICITY: Aggregator shall
not include City, SFE, SFPUC, or CleanPowerSF, name, trademark, trade name, logo, identity or
any affiliation for any reason, any reference to this Agreement, or any
reference to City, SFE, SFPUC or CleanPowerSF’s purchase or use of any
products, Services or Work or in other publicity or advertisement, including
internet, without the prior written consent of CleanPowerSF. CleanPowerSF maintains
a non-endorsement policy and Aggregator agrees not to state or imply in any
form of written, verbal, or electronic advertisement, communication, or any
other business development effort, that City, SFE, SFPUC, or CleanPowerSF endorses,
recommends, or vouches for Aggregator. Aggregators who wish to develop
marketing materials for the Program beyond what is developed and furnished by
the Program should coordinate with CleanPowerSF and obtain pre-approval to
ensure compliance. Aggregators shall
obtain permission from Participants for any reference in publicity materials or
advertisements.
2.20 PARTICIPANT IDENTIFIABLE INFORMATION
(“PII”): Aggregator shall represent and warrant that all confidential information,
as defined in Privacy and Data Security Laws, including electric consumption
data, personal and entity names, email
addresses, addresses, phone numbers, any other public or privately-issued
identification numbers, IP addresses, Media Access Control addresses, and any
other digital identifiers associated with entities, geographic locations,
users, persons, machines or networks acquired from CleanPowerSF to provide
Services or perform work related to this Agreement, is kept confidential in
compliance with all laws applicable to such information, including that a Participant provides consent to use of
the information for this program and that this information will only be used
for this program.
2.21 DATA SECURITY: Aggregator
shall adopt and continuously implement, maintain and enforce reasonable
technical and organizational measures, consistent with the sensitivity of
Personal Information including, but not limited to, measures designed to (1)
prevent unauthorized access to, and otherwise physically and electronically
protect, the Personal Information and (2) protect CleanPowerSF data against
unauthorized or unlawful access, disclosure, alteration, loss, or destruction.
2.22 CYBER PROTECTION FOR
PROGRAMMABLE DEVICES: The following requirements apply to any Deliverables
under this Agreement containing software, firmware, microcode or other
Programmable features. These requirements apply on a continuing basis for the
longer of five years and the expected service life of the Deliverables (the
“Service Life”):
(a) MALICIOUS CODE: Aggregator
shall represent, warrant, and covenant to CleanPowerSF that upon Deliverables
being delivered, the Deliverables will not contain or make available any
Malicious Code. Without limiting any of CleanPowerSF’s rights and remedies with
respect thereto (all of which are expressly reserved), if Aggregator is made
aware of detects or Malicious Code in the Deliverables during the Service Life,
Aggregator shall immediately notify CleanPowerSF. If CleanPowerSF has not put
the Deliverables into use, Aggregator shall be responsible to remove such
Malicious Code, remediate its effects and certify the Malicious Code has been
removed from any Deliverables related to providing the services under this
Agreement. If the Deliverables related to the services are in use, Aggregator
shall assist CleanPowerSF to remove the Malicious Code in accordance with the
Section below “Security Updates and Support.”
(b) CYBERSECURITY SPECIFICATIONS:
Aggregator shall represent, warrant, and covenant that the Deliverables for the
Services and Work comply with the cybersecurity features and functions, if any,
described in the associated specifications.
(c) SECURITY VULNERABILITIES AND
TESTS: Aggregator acknowledges the Deliverables provided related to the
Services and Work in accordance with this Agreement may be subject to security
testing by CleanPowerSF or its security testing agents before the Deliverables
are accepted, or at any time during their Service Life. If the Deliverables are
integrated with products supplied by third parties, that third party may also
be involved in the testing process. Aggregator agrees to fully cooperate with
such tests that may include:(a) providing source code and other documentation
(which CleanPowerSF shall use solely for testing purposes), and (b) providing a
representative with suitable technical expertise to participate in the tests.
The conduct and results of the tests, including any security vulnerabilities
identified in or during the tests, shall be CleanPowerSF Confidential
Information.
Tests identifying any security
vulnerabilities will be resolved in accordance with the following Section,
Security Updates and Support.
(d) SECURITY UPDATES AND SUPPORT:
Aggregator(s) shall maintain a technical support line with access to CleanPowerSF
to promptly address any security-related issues and if Aggregator(s) become
aware of any Malicious Code or security vulnerability in the Deliverables
during their Service Life, they shall immediately notify CleanPowerSF. If
Malicious Code or security vulnerability is identified during the Service Life,
CleanPowerSF shall provide an update or revision to any Deliverables related to
the Services in accordance with this Agreement, will remove the Malicious Code
and/or cure the vulnerability (a “Security Patch”) without delay and at no
charge and upon request, assist CleanPowerSF in implementing the Security Patch
and at no charge.
2.23 USE OF CleanPowerSF CONFIDENTIAL
INFORMATION: All records, reports, computer Programs, written procedures and
similar materials, documents, or data, in whatever form, provided by CleanPowerSF
to Aggregators designated as confidential shall remain CleanPowerSF’s
Confidential Information. Aggregator shall be responsible to safeguard such CleanPowerSF
Confidential Information in accordance with the terms of this Agreement and
such information be returned immediately to CleanPowerSF upon completion of
Aggregator’s use for performance of the Services, Work, or earlier upon CleanPowerSF’s
request. Alternatively, Aggregator may destroy such information, provided an
officer of Aggregator certifies the destruction in writing.
2.24 TAX AND CERTAIN PAYMENTS:
Nothing in this Agreement shall relieve the Aggregator from their
responsibility to pay any tax that may be levied by any Government authority.
Aggregator shall indemnify and hold harmless and defend CleanPowerSF (a) on an
after-tax basis, for any liability incurred by CleanPowerSF resulting from
Aggregator’s failure to institute any such required withholding, and in
addition (b) any liability incurred by CleanPowerSF as a result of Aggregator’s
delay or failure to pay any (i) Participating Aggregator, including but not
limited to, any demands for payment, invoices, liens or other consideration due
or allegedly due; or (ii) delay or failure to pay any employees, laborers, or
other personnel of Aggregator related to any compensation, monies, wages,
benefits or other payment or consideration due or allegedly due.
3. CleanPowerSF Responsibilities
3.1 SITE ELIGIBILITY: Aggregator
shall identify potential Participants that may be eligible to participate in
the Program. Participants shall complete and sign Customer Eligibility Form and
CleanPowerSF shall determine in its sole discretion preliminary eligibility
based on the criteria in the M&V Plan and Program Handbook.
3.2 PROJECT ELIGIBILITY: Aggregators
shall submit Project Applications with supporting documentation as outlined in
the Program Handbook. CleanPowerSF shall
determine, in their discretion, the eligibility of each project Aggregator
submits, based on complete data provided and the Program policies and
procedures. CleanPowerSF shall notify Aggregators, as soon as possible, of
incomplete project information required to estimate project impacts and reserve
incentive funds. CleanPowerSF may, at its discretion, offer guidance to
Aggregators on estimating expected energy savings and assessing potential
impacts on their project portfolios, but is not obligated to do so.
3.3 SUPERVISION: CleanPowerSF will
not manage or supervise the work performed by its Aggregators. CleanPowerSF
assumes no responsibility for the quality of that work or the timeliness of
installation.
3.4 AGGREGATOR INCENTIVE
RESERVATION: CleanPowerSF shall calculate or validate estimated Aggregator
incentives for submitted projects based on climate zone, measure type(s),
energy savings, and savings load shape. CleanPowerSF may request additional
information before approving or rejecting the submission. CleanPowerSF shall
reserve 120% of the estimated incentive funds and CleanPowerSF will provide
Aggregator an Incentive Reservation Letter (“IRL”). CleanPowerSF reserves the
right to implement a project cost cap as stated in the Program Handbook. If any
changes occur, CleanPowerSF will notify Aggregator via email, and that will
serve as an addendum to this agreement. The Aggregator proceeds at their own
risk based on any approved incentive reservation.
3.5 SAVINGS M&V): Following the
Aggregator’s submission of the Project Completion Package that includes
delivery of final project details as outlined in the Program Handbook, CleanPowerSF
will conduct a review and notify the Aggregator or any required remedies. At
its sole discretion, CleanPowerSF will issue a Performance Period Notification
Letter identifying the Enrollment Group and timeline as outlined in the Program
Handbook. During the M&V Performance period, CleanPowerSF will provide
Aggregators with quarterly updates on project kWh savings performance to
support identification and remedy of potential performance issues, and to
support savings forecasting. These values will be used to determine incentives
and will be shared with the Aggregator for transparency.
3.6 AGGREGATOR PERFORMANCE
PAYMENTS: CleanPowerSF will calculate savings for each Enrollment Group and
calculate the earned Aggregator incentive. Then, payment to the Aggregator will
be issued according to the timelines stated in the Program Handbook. CleanPowerSF
will not reimburse Aggregator for any labor or expenses incurred, including but
not limited to identifying, selling, constructing, or monitoring projects.
(a) Each Pop-NMEC project will be
issued with two types of payments:
(1) Advance payment is provided
upon review of the Project Completion Package approval and resulting PPNL
notification. The calculation methodology for the Advance payment is outlined
in the Program Handbook. Payments will be made on an individual project basis
and are processed monthly.
(2) Final true-up payment will be
made at the Enrollment Group level, following the cohort’s 12-month M&V
Performance Period. The final true-up payment is based on trued-up realized
savings. Final true-up payment will be calculated based on the methodology
outlined in the Program Handbook and M&V Plan.
(b) In cases where the Aggregator
is overpaid (i.e. project receives an Advance payment but is determined to be
disqualified or withdrawn during M&V period, or final performance amount is
less than amounts already paid), CleanPowerSF will deduct the net amount
overpaid from the Aggregator’s earned incentives in future performance
payments, irrespective of Enrollment Group.
4. CleanPowerSF RETAINS RIGHTS TO
INTELLECTUAL PROPERTY; AGGREGATOR KNOW-HOW
4.1 Any tools, methodologies,
documents, Intellectual Property or other materials (including, without
limitation, software) CleanPowerSF provides to Aggregator to perform the
services, remain the sole property of CleanPowerSF or its licensors. For
clarity, CleanPowerSF retains ownership of all right, title, and interest in
and to CleanPowerSF’s pre-existing intellectual property (“IP”) rights,
including, without limitation: (i) reports, writings, abstracts, summaries,
drawings, flow charts, images, artwork documents, know-how, technology,
inventions, discoveries, processes, techniques, methods, methodologies,
business processes, ideas, concepts, research, proposals, materials, that are
created, prepared, produced, authored, edited, amended, conceived, or reduced
to practice by CleanPowerSF solely or jointly with others; (ii) all computer programs
(both source code and object code), software, firmware, designs, application programs,
operating systems, scripts, animation sequences, interfaces, programming code,
applets, executables, objects, formats or page descriptions, data, databases,
computer architecture or hierarchies, files and utilities; (iii) all supporting
documentation for any of the foregoing, including input and output formats,
listings, narrative descriptions, operating instructions and training
documentation; and (iv) all tangible media upon which any of the foregoing are
recorded, including, without limitation, disks, CDs, tapes, chips or
photographs (collectively “Pre-Existing Intellectual Property”). All
Intellectual Property rights in and to CleanPowerSF’s Pre-Existing Intellectual
Property shall be owned exclusively by CleanPowerSF and its licensors. CleanPowerSF
and its licensors shall also exclusively own all right, title, and interest in
and to any and all enhancements, improvements, modifications, and any other
derivative works of CleanPowerSF’s Pre-Existing Intellectual Property, whenever
conceived, developed or otherwise created, either before or during the Term of
this Agreement, or after its termination or expiration. For clarity, CleanPowerSF
and its licensors shall retain ownership of all Pre-Existing Intellectual
Property incorporated into the deliverables, as well as the rights to any
pre-existing third-party software or other works licensed by CleanPowerSF from
third parties that may be contained in any of the deliverables. CleanPowerSF grants
the Aggregator a limited, irrevocable, perpetual, fully paid-up, royalty-free
non-transferable, non-sublicensable, non-exclusive license to use, reproduce,
display, distribute, transmit, modify (including to create derivative works)
Pre-Existing Intellectual Property to the extent incorporated in the
deliverables. All other rights in and to Pre-Existing Intellectual Property are
expressly reserved by CleanPowerSF. The aforementioned license does not include
the right to use any of the Pre-Existing Intellectual property separately or
independently from the Deliverables.
4.2 Aggregator shall retain rights
in any know-how, expertise or techniques (“Know-how”) it brings in performance
of the Services; provided that Aggregator grants CleanPowerSF a non-exclusive,
irrevocable, royalty free license to use that Know-how for the purposes of
executing their contractual obligations to implement the CleanPowerSF Business Savings
Program.
5. TERM OF AGREEMENT:
The term of this Agreement will
commence on the Effective Date, and shall continue, unless terminated earlier
in accordance with Section 10 of this Agreement or expire five (5) years from
the date of the final payment to Aggregator for its work on the Program.
6. SUBCONTRACTING:
If Aggregator hires a subcontractor
in connection with this Agreement or a Program project, Aggregator shall ensure
compliance by such subcontractor with all terms and conditions of this
Agreement and Aggregator assumes all risk and liability that its subcontractors
fail to do so. Nothing contained in this Agreement shall create any legal or
contractual relationship between CleanPowerSF and any subcontractor, contractor
or agent of Aggregator. Aggregator is solely responsible for paying its
subcontractors. CleanPowerSF shall not have any obligation to pay or to enforce
the payment to any subcontractor, contractor or agent of Aggregator.
7. ASSIGNMENT:
Aggregator may not transfer or
assign its rights and obligations under this Agreement without CleanPowerSF’s
prior written consent. However, Aggregator may assign its rights to receive
payment under this Agreement to a third party financial or insurance
intermediary, at its sole and absolute discretion. CleanPowerSF may in its
discretion assign this Agreement or any of its rights or obligations under this
Agreement to any successor entity or other City Department or agency.
8. CONFIDENTIAL INFORMATION;
PUBLICITY
8.1 HANDLING OF CONFIDENTIAL
INFORMATION. Aggregator agrees not to disclose to third parties Confidential
Information received from the CleanPowerSF and not to use such Confidential
Information for its own benefit or the benefit of any other party, except to
implement the Program.
8.2 “Confidential Information”
means information related to the business of the CleanPowerSF and its customers,
including the terms and conditions of this Agreement, all business plans,
technical information or data, product ideas, methodologies, algorithms and
analytical routines, software, and all personnel, customer, suppliers,
contracts and sale, financial and other information, ideas, materials or other
subject matter, whether disclosed orally, in writing or otherwise, that is
provided by CleanPowerSF to the Aggregator clearly marked as confidential or
that would reasonably be understood to be considered confidential under the
circumstances. Information shall not be Confidential Information if it is: (a)
already known free of restriction when it is obtained by the Aggregator, (b)
subsequently learned by the Aggregator from a third party without breach of
this Agreement, (c) is or becomes publicly available through no fault, default
or breach of or by the Aggregator (d) is independently developed by the
Aggregator without reference to or use of any Confidential Information provided
by CleanPowerSF.
8.3 NON-DISCLOSURE. Aggregators
shall not disclose Confidential Information of the other Party to any Person,
firm or enterprise, unless authorized by the other CleanPowerSF in writing,
except that Aggregator may disclose such Confidential Information (a) to its
employees, agents, sub-contractors, advisors and consultants with a legitimate
need to know the same, and (b) under applicable law, rule or regulation or
compulsion of proper judicial or other legal process. Aggregator also agrees
not to publish or otherwise divulge such information, in whole or in part, in
any manner or form, nor to authorize or permit others to do so, and shall take
reasonable measures to restrict access to such information while in the
Aggregator’s possession, to those employees needing such information to perform
the work described herein, i.e., on a “need to know” basis. Aggregator agrees
to immediately notify the CleanPowerSF in writing if Aggregator determines or
has reason to suspect a breach of this requirement has occurred.
8.4 RETURN OR DESTRUCTION OF
CONFIDENTIAL INFORMATION. Upon termination or expiration of this Agreement or
upon request of CleanPowerSF, whichever comes earlier, the Aggregator shall
return to CleanPowerSF or destroy (and certify such confidential destruction in
a form reasonably acceptable to CleanPowerSF) all Confidential Information
provided by CleanPowerSF, all documents and media containing such Confidential
Information and any copies or extracts thereof. Upon written request by
CleanPowerSF, Aggregators shall promptly cease, and shall cause its recipients
to cease, use of such Confidential Information and any information or materials
that contain, incorporate or are derived from such Confidential Information.
8.5 REMEDIES. Aggregator
acknowledges that CleanPowerSF considers its Confidential Information to
contain trade secrets of the CleanPowerSF and that any unauthorized use or
disclosure of such information would cause CleanPowerSF irreparable harm for
which remedies at law would be inadequate. Aggregator agrees that the
CleanPowerSF will be entitled, in addition to any other remedies available to
it at law or in equity, to seek the issuance of injunctive relief, without
bond, enjoining any breach or threatened breach of the Aggregator’s obligations
hereunder regarding the Confidential Information of CleanPowerSF, and such
further relief as any court of competent jurisdiction may deem just and proper.
8.6 CleanPowerSF will manage all
Confidential Information obtained through the implementation of the Business
Savings Program in accordance with the CleanPowerSF Privacy Policy. Confidential Information will be retained in
accordance with the policies of the City and County of San Francisco for
auditing and evaluation purposes.
CleanPowerSF may be required to disclose pursuant to the order or
requirement of a court, administrative agency, or other governmental body, or
may otherwise be required to be disclosed pursuant to a request by a third
party under applicable federal, state, or local law including, but not limited
to, the California Public Records Act and the City and County of San
Francisco's Sunshine Ordinance provided, however, that the CleanPowerSF shall
provide prompt notice of such court order or requirement to the Aggregator to
enable the Aggregator to seek a protective order or otherwise prevent or
restrict such disclosure.
8.7. SURVIVAL OF OBLIGATIONS. The
provisions of Section 8 (Confidential Information; Publicity) shall survive the
expiration or termination of this Agreement for any reason, including
termination for cause or breach, and shall remain fully binding upon the
Aggregator indefinitely or for the maximum period permitted by applicable law.
Notwithstanding the return or destruction requirements in Section 8.4, the
Aggregator’s obligations to safeguard confidential information, maintain
required program records, and comply with CleanPowerSF’s post-termination data
requests or audit requirements shall survive and remain enforceable regardless
of whether final Project incentives have already been distributed or paid.
9. CORRECTIVE ACTIONS:
9.1 CleanPowerSF may notify
Aggregator in writing to initiate Corrective Actions if Aggregator breaches
this Agreement or if Aggregator is out of compliance with Program requirements,
if such breach or noncompliance can be cured. Breaches or compliance issues may
be related to, but not limited to, any failure to comply with Program requirements,
policies, and guidelines; misrepresentations about the Program, a site or
project equipment, schedule, status or cost information; failure to provide
requested project information, customer service complaints; inappropriate
behavior and language to SFE, SFPUC, CleanPowerSF or its agents, or Participants;
suspected fraudulent activity; unsafe Aggregator Services or Work; or poor
workmanship.
9.2 The Aggregator shall reply to
CleanPowerSF’s written notice of breach, or request for Corrective Actions,
within five (5) business days and shall follow requested and documented
timelines for issue remediation and Corrective Action requested. Failure to
address a breach or rectify Corrective Action items may be grounds for
suspension from Program, termination of this Agreement, withholding or delay of
incentive payments, cancellation of Program project fund commitments, and
forfeiture of Project incentives. Suspension
from the Program shall preclude the Aggregator from earning further incentives
but shall not relieve the Aggregator of its ongoing obligations regarding
confidential information as provided in Section 8.7.
10 TERMINATION:
10.1 For breaches or noncompliance
notices that can be cured, if Aggregator fails to promptly respond to CleanPowerSF’s
written notices of breach, or requests to cure Corrective Actions within
timeframes requested by CleanPowerSF, CleanPowerSF reserves the right to
terminate Aggregators by giving Aggregator five (5) business days written
notice.
10.2 For breaches that cannot be
cured (including, but not limited to, fraudulent activity, severe safety
violations, or willful misconduct), CleanPowerSF reserves the right to
terminate this Agreement immediately upon written notice to the Aggregator.
10.3 CleanPowerSF may terminate
this Agreement if funding is reduced or eliminated. If CleanPowerSF terminates
this Agreement for any reason other than a breach by Aggregator, Aggregator
shall be paid the incentive payments earned within up to one year past the
Project approval date for any projects approved in accordance with the terms of
this Agreement.
10.4 This Agreement is subject to
changes, modifications, or termination by order or directive. CleanPowerSF reserves
the right to modify this Agreement accordingly and will notify Aggregators
within five (5) days upon notice of required changes.
10.5 Either Party hereto may
terminate this Agreement for any reason by giving thirty (30) calendar days’
written notice to the other Party. Notice of termination shall be by written
notice to the other Party and be sent by email toSaveEnergy@sfwater.org or
Aggregator email provided. CleanPowerSF will
honor incentive payments for all projects that have received an Incentive
Reservation Letter provided they meet all other requirements in this Agreement
and the Program Handbook.
11. GOVERNING LAW; DISPUTE
RESOLUTION
11.1 GOVERNING LAW. This Agreement
shall be construed and enforced under the substantive laws of the State of
California.
11.2 DISPUTES. The Parties shall
use their commercially reasonable efforts to amicably settle any claim,
controversy, disagreement or other matter in question between the Parties that
arise out of or relate to the terms and conditions or formation of this
Agreement or regarding the performance or non-performance by the Parties of
their respective obligations under this Agreement, including any claim for
breach or repudiation thereof (a “Dispute”). To this effect, the Parties shall
consult and negotiate with each other in good faith and, recognizing their
mutual interests, attempt to reach a just and equitable solution to any Dispute
satisfactory to both Parties. If the Parties do not reach such solution within
thirty (30) days, upon notice by either Party to the other, such dispute,
claim, question, or disagreement may be submitted to non-binding mediation.
12. REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION:
12.1 GOOD STANDING. At all times during the
Term, Aggregator represents and warrants that (a) it is a