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Home My WebLink AboutMINUTES - 06032003 - HA2 HOUSING AUTHORITY OF THE COUNTY OF CONTRA COSTA TO: BOARD OF COMMISSIONERS FROM: Robert McEwan, Executive Director DATE: April 15, 2003 SUBJECT: ADOPT RESOLUTION NO. 5039 AUTHORIZING THE EXECUTIVE DIRECTOR OR HIS DESIGNEE TO EXECUTE AN ENERGY SERVICES AGREEMENT WITH CITIZENS CONSERVATION SERVICES, INC. SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION I. RECOMMENDED ACTION: ADOPT Resolution No. 5039 authorizing the Executive Director or his designee to execute an Energy Services Agreement with Citizens Conservation Services, Inc. Il. FINANCIAL IMPACT: The annual energy savings realized from the proposed energy conservation measures at public housing developments over the next 12 years will generate funds for the payments toward the financing of recommended energy conservation improvements. Those funds normally appropriated from HUD for energy consumption will be appropriated for the debt service payments for the Municipal Lease and Options Agreement. Costs for the debt service have been included in the Housing Authority's budget and there is to be no cost to the County General Fund. III. REASONS FOR RECOMMENDATION/BACKGROUND This agreement is for a full range of energy services and energy related capital improvements financed through a performance-based contract, guarantees that energy savings will accrue equal to or greater than the amortized cost of the improvements. Attachment A is a copy of the Energy Services Agreement with appendices for the proposed energy conservation measures. The U. S. Department of Housing and Urban Development, Regional Office, San Francisco, has reviewed and given their preliminary approval of the energy audit and the proposed Energy Services Agreement. On February 15, 2002 energy services companies submitted proposals to conduct a complete energy audit and the design, acquisition, installation, modification, maintenance and training in the CONTINUED ON ATTACHMENT: X YES SIGNATURE • RECOMMENDATION OF EXECUTIVE DIRECTOR RECOMMENDATION OF BOARD COMMITTEE APPROVE OTHER SIGNATURE(S): ACTION OF BOARD ON June 3, 2003 APPROVER AS RECOMMENDED X OTHER VOTE OF COMMISSIONERS I HEREBY CERTIFY THAT THIS IS A X UNANIMOUS (ABSENT Bone _ ) TRUE AND CORRECT COPY OF AN AYES: NOES: ACTION TAKEN AND ENTERED ON THE ABSENT: ABSTAIN: MINUTES OF THE BOARD OF **Advisory Reusing Ccx ndssion Seat VACANT** COMMISSIONERS ON THE DATE SHOWN. **District III Seat VACANT** ATTESTED Jim 3 2003 JOHN SWEETEN,CLERK.OF THE BOARD OF COMMISSIONERS AND COUNTY ADMINISTRATOR BY 3A4', % . . . € y /DEPUTY H:\JudyHayes\MSOFFICE\WINWORD\BOARD\BO-Energy Services Contract.doc z s, z,: operation of existing and new equipment which will reduce energy consumption associated with heating, ventilation and air conditioning systems, lighting systems, building envelope, domestic water systems and other energy using devices. The services requested include the training of facility maintenance staff with respect to the routine maintenance and operation of all improvements. The award for these services went to Citizens Conservations Services (CCS), an Ameresco Company. The proposal provided that capital improvements must result in a guaranteed minimum energy savings with the CCS payments linked to actual measured reduction in energy cost or consumption. The contract shall not exceed twelve (12) years duration and is subject to annual appropriations. The CCS has guaranteed that the minimum annual energy cost savings derived from such improvements shall meet the monthly debt service payment for the bank financing of these modernization improvements. Attachment B is a proposed debt service and interest payment scheduled provided by West America Bank, Martinez, CA. Excess energy cost savings above the debt service payment will be divided, as negotiated, between the Housing Authority and CCS. Any shortfall in the annual cost savings used for payment of the capital improvements costs shall by paid by CCS as guaranteed in the Energy Services Agreement. CCS has completed energy audit as required by HUD. This energy audit and the CCS proposal for recommended capital improvements detailed an anticipated energy consumption savings of gas, electric and water/sewage of approximately $1.57 million dollars over the next twelve years. This represents an annual energy savings of approximately $130,800. IV. CONSEQUENCES OF NEGATIVE ACTION: Should the Board of Commissioners elect not to authorize the Executive Director to enter into an agreement with Citizen's Conservation Services the Housing Authority would be unable to move ahead with the proposed energy conservation measures at its public housing facilities and would forfeit the cost of the energy audit performed by CCS in the amount of$30,000 rather than have this cost rollover into the Energy Services Agreement. THE BOARD OF COMMISSIONERS HOUSING AUTHORITY OF THE COUNTY OF CONTRA COSTA RESOLUTION NO. 5039 AUTHORIZING THE EXECUTIVE DIRECTOR OR HIS DESIGNEE TO EXECUTE AN ENERGY SERVICES AGREEMENT AND A MUNICIPAL LEASE AND OPTIONS AGREEMENT, UPON APPROVAL BY THE U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (HUD), WITH CITIZENS CONSERVATION SERVICES WHEREAS, the Housing Authority of the County of Contra Costa, hereinafter referred to as "Authority" has determined that a true need exists for the acquisition of the Equipment described in the Energy Services Agreement, sample attached, by and between the Authority and Citizens Conservation Services, Inc., hereby presented; and WHEREAS, the Authority desires to finance the acquisition of such Equipment on the terms and conditions set forth in the Municipal Lease and Option Agreement to be dated the date of execution thereof by and between the Authority and the Citizens Conservation Services, and; WHEREAS, the Authority has taken the necessary steps, including any applicable request for proposal requirements, under applicable law to arrange for the acquisition of such Equipment, NOW, THEREFORE BE IT RESOLVED the Executive Director of the Authority, or his designee, is hereby authorized to execute the Agreements and any related documents necessary to the Lessee of the Municipal Lease and Option Agreement and any related documents necessary to the consummation of the transactions contemplated by the Agreements. a. That the proposed expenditures are necessary in the efficient and economic operation of housing for the purpose of serving low-income families. b. That the financial spending plan is reasonable. C. That all proposed revenues and expenditures are consistent with the provisions of law. PASSED AND ADOPTED ON . 3, 2003 by the following vote of the Commissioners. AYES: Supervisors Gioia, Uilkema, Glover and DeSaulnier NOES: gone ABSENT: None ABSTAIN:None **Advisory Ding Ccmnission Seat VAS* I HEREBY CERTIFY THAT THIS IS A **District IIT Seat VACANT** TRUE AND CORRECT COPY OF AN ACTION TAKEN AND ENTERED ON THE MINUTES OF THE BOARD OF COMMISSIONERS ON THE DATE SHOWN. ATTESTED June 3, 2003 JOHN SWEETEN, CLERK OF THE BOARD OF COMMISSIONERS AND COUNTY ADMINISTRATOR By { H:\JudyHayes\MSOFFICE\WINWORD1BOARD\ISO-Energy Services Contract Resolution.doe ,, �yi t'�. ��'. �'1 i. �;�� li �; �'i �e� 11 1t 11 .�t, 11 ��:. �' l 1t:. i' ii'. �\, �`. lj �� 1, �}-,��,�j 1� �� 1� 'sa �� ,. �. 's. �'t t t 1 ;� rt 4 ��i :i t� tl ,,�1+ `L it i } �c i� r. i 3 ji ENERGY SERVICES AGREEMENT II between EUA CITIZENS CONSERVATION SERVICES,INC.,an AMERESCO Company and �? The housing Authority of the County of Contra Costa i Energy,Services Agreement PROPRIETARY April 28, t)t1,3 It sf TABLE OF CONTENTS PART A EFINITIONS........................ ........................ .............. ................ 2 PART W E S AND CONDITIONS—.......... ......... J ............. .............. ........ ......................... (1) SUIT'MARY OF SCOPE OF SERVICE,...----...... ....... ............................... ........... (2) TF, ,:: OF AGREEMENT............... ....................................... .......... ................. 6 (3) 1, ROY AUDIT REPORT....................... ...................... ....... ............................. ........ 6 (4) PHEXSE I-DESIGN AND CONSTRUCTION FUNDING............. .............................. ...........6 (5) PHASE It-CONSTRUCTION.......... .......... ......................... ....................... ................12 (6) Pf SF -PROJECT OPERATION... ........ ....... ........—....... 19 (7) E, R6111 Y SAVINGS DURING PHASE III................................ ......... ......... ..........—.................19 (8) C�,01-1 FLOW.........—........ .............................. .......... .......... ...............--.......—....--......... ...... ....20 (9) CONIDITIONAL ENERGY SAVINGS GUARANTEE........---...... ............... .......................--....21 0) M' INTENANCE,MATERIAL,ALTERATION,AND SECURITY..............................................21 (11) SUMMARY OF COMPENSATION.......... ...... ......... .......... ...... .............. ...........—23 (12) P C7PERTY AND ACCESS TO PROJECT RECORDS...... .......................... ......... .......—.....24 (13) IN EMNIFICATION AND LIMITATION OF LIABILITY............................................................24 (14) C PLIANCE WITH APPLICABLE LAW AND REGULATION AND REGULATIONS 1I� LUDING,PHA POLICY COMPLIANCE.............—........................ ....................... .......... ....24 5) TERMINATION AND MATERIAL DEFAULT........ .......... ............... ... 26 (16) SdCCESSORS AND ASSIGNS-....-.... .......................... .......... ........................--..............28 (17) ST.. TE LAW................... .........-...............—........ ...........................................-.... .................. ....—28 (18) mtriRE AGREEMENT;AMENDMENTS ......—.... ........... ....................... ............. .......28 (19) N6N-WAIVER................. ........ ........... ............--.............. ....... .......................... ..........--28 (20) N PARTNERSHIP OR THIRD PARTY OBLIGATIONS.............................................................28 (21) IN ALIDITY..... ...............--........ ........-......... ...... ..........................29 (22) N TICES........ ........... ............................. ....... .......... ...................... ........—..................-29 (23) F RCE MAJEURE.................... ...... ....................................................--..... ...... ........-... ............30 (24) P OMOTIONAL LITERATURE,PRESS AND MEDIA......... .............I..........4.....--...... .......30 (25) IORPORATION............-......... .........--.......... ............... ............ ....... ........ .........-..... ... ....30 (26) H ,-,ADINGS................................... ....................... ................ -..... ............... .......... ..........-...31 (27) X PRESENTATIONS AND WARRANTIES...............—....- ...........—........................ .....31 (28) A )DITIONAL REPRESENTATIONS AND WARRANTIES OF AHA.........................................31 (29) A )DITIONAL DEVELOPMENTS........................... ........... ................ ........ .....-32 (30) HERARCHY OF PROVISIONS........... ........... ...................................... ............ ......... ....... 32 APPENDICES: A. DEVELOPMENTS B. SCOPE OF WORK/RECOMMENDED ECM LIST (SUMMARY OF RECOMMENDATIONS) C. MUNICIPAL LEASE AND OPTION AGREEMENT D. CASH FLOW PROJECTION(INCLUDING BASELINE) E-1-a,b'I 1,d CONTRACT COST, ANNUAL SERVICES,and HOURLY RATES E-2 ,,CHANGE ORDER FORM F. i7 LIVERY AND ACCEPTANCE CERTIFICATE Energoyy ervices Agreement PROPR`` TARY ,l April 2 g I� i II ti 7 1 G. U' xLITYJENERGY SUPPLIER SAVINGS CALCULATIONS II. S :NDARUS OF COMPORT AND SERVICE L G '„ARANTEE i J. NCi}TICE TO PROCEED JJia I K. S��IPLE INSTALLATION APPROVAL CEWFIFICATF f L. UD APPROVAL LETTER a# K OJECT MILESTONES ii AITAC ENTS(incorporat"byre€erencel: I. E �RGY AUDIT REPORT I; ii k t. 1. i al I� I 4) �f Energy 'ervices Agreement PRdP TARY April28p 2003 3i I�t 1 13: I' 1 a '1 ENERGY SERVICES AGREEMENT mms Agreement ("Agreement") made as of , 2003 ("Execution Date"), by and between EUA CiJ16ns Conservation Services, Inc., a corporation organized under the laws of the Commonwealth of Massachstetts and authorized to do business in the State of California, with its principal place of business at Ameresc i Inc., Suite 410, 111 Speen St.,Framingham,MA 01701 ("Citizens"); and the Housing Authority of the County o jContra Costa, a corporation organized under the laws of the State of California,with its principal place of business i .t 3133 Estudillo Street,P.O. Box 2759,Martinez, CA 94553, ("HACCC", "PHA" or the "Authority"; collectiv4, Citizens and PHA are termed the"Parties"or individually,a"Party") I, j.. I2ECITA!S WHEREAS, PHA issued a Request for Proposals ("RFP"), dated December 20, 2000, seeking energy servicesmmpanies("ESCOs")to perform certain services relating to energy conservation;and {=WHEREAS,Citizens responded to the RFP and represented in its proposal dated February 16,2001 that it possesi is the necessary knowledge and experience to perform the work and services described in this Agreement; and i WHEREAS, pursuant to that certain Energy Audit Agreement dated December 27, 2001, between the Parties, tizens completed the Energy Audit Report as of October 3,2002;and l ( WHEREAS, Citizens has determined the potential for utility/energy supplier consumption and cost savings 's further defined herein, "Energy Savings") by installation of Energy Conservation Measures (as further defined rein, "ECMs")within certain PHA properties(consisting of apartment sites and complexes), described in this Agr{ merit and the Appendices and Attachments hereto as "Developments", and the approximate cost of the ECMs n i essary to achieve these savings;and WHEREAS, PHA wishes to implement the Energy Services Project in the manner set forth in this Agreem it and desires that Citizens perform a project (as further defined herein, the "Conservation Project") by using its!services as mote fully provided for within this Agreement, which services will include, but :may not be limited t , design, engineering, assistance in arranging financing, construction, construction management, system mainten ce,inspection and certification,energy use monitoring services,PHA staff training and resident education services or a period coterminous with the term of the Municipal Lease with Option Agreement(as defined herein); and WHEREAS, the U.S, Department of Housing and Urban Development ("HUD") conducts a program to assist and enable parties such as HACCC to implement projects such as the Conservation Project and the Energy Services Plan was developed and prepared in compliance with this HUD program and in contemplation of PHA re iving HUD assistance. NOW THEREFORE, the Parties, for good and valuable consideration, the sufficiency and adequac i of which the Parties hereby acknowledge,agree as follows: Energy,kervices Agreement 1 PROAM rETARY April 28 2003 1� l i I � 1� PART At" 1h DEFINI�3©NS Words a phrases shall be defined according to their ordinary usage and meaning except as otherwise specifically defined i ';this Agreement. The definitions of the words and phrases in this PART A(indicated by capitalization of the first I iter(s) of those words and phrases) shall apply throughout this Agreement unless specifically provided otherwis' ; Words and phrases which are not defined in this PART A may be defined in other provisions of this Agreeme and,as so defined and capitalized,shall be given their defined meanings throughout this Agreement. "Accepti ce Date"shall mean the date upon which written acceptance by PHA is obtained for the ECMs installed by Citize with respect to each individual Development listed in Appendix A. Without limiting the foregoing, in the event; re Conservation Project with respect to each Development is completed in parts or sub-parts, the date on which th ' CMs included in the last such part or sub-part of that,Development receive all such necessary approvals and acceptances shall be the Acceptance Date of the Conservation Project with respect to that Development. 3 "Agreen# nt" shall mean this Energy Services Agreement for the implementation of the Conservation Program, includizag'��ll exhibits, attachments, appendices, amendments, modifications, or revisions made in accordance with its tertns. "Ilaselin5 shall mean the existing utility usage, or allowance for utility usage, for utility/energy supplier services including+Abut not limited to,natural gas,fuel oil,electricity, water/sewer, identified by Citizens and included within Appendi 111D. "Copsetion Program"shall mean the products and services rendered under this Agreement,the scope of which will be d'fined by the Conservation Project affecting subsets of the utility/energy supplier costs within the FHA's portfolio kf properties. i "Conseration Project" shall mean the specific group of ECMs to be installed by Citizens or others, as may be provided der this Agreement and within Appendix B,at all or any of the Developments listed in Appendix A and the servicbs related thereto to be provided by Citizens pursuant to this Agreement. "Constri ction Account" shall mean the total funds to be utilized to develop and construct the Conservation Project, il icluding the funds available from the Municipal Lease and any supplemental funding. The funds available from the Municipal Lease and held in an Escrow Account shall be released only by joint signature of PHA and Citizens,vith approval by the escrow agent. Supplemental funding shall also be released only by joint signature of PITA and Citizens, but is subject to any additional authorization required by the party holding the funds. Such releases if funding from the Construction Account will be effectuated by a written"Requisition" authorized by the Parties. In accordance with the provisions of Section (5) C. vi., Citizens shall maintain an accounting of all available funding for the Conservation Project and report on the status of such funding monthly throughout Phases I and II. "Constri iction Documents" or"Contract Documents"shall mean the contract documents for the construction or the Supp y of tine ECMs, as the case xnay be, which may include, but not be limited to, this Agreement, the Construe ion Subcontracts for the Construction Subcontractors {for those ECMs to be installed by Citizens as describe( in Section(5),Phase lI•--Construction)and such working drawings and specifications as may be prepared by or or behalf of Citizens which detail the materials and procedures required to install the ECMs, and all amendments and modifications to the foregoing documents. Energy �rvires Agreement 2 1'tti7l"Xtl TARY April 28,1 003 11 i � i i I w "Constr ction Financing"shall mean third party financing,in the form of a Municipal Lease, for the purchase and installati}1�of the ECMs. Funds available through the construction financing shall be held in an"Escrow Account" as define; more fully below and shall be released to support the purchase and installation of the ECMs under this Agreeme;only by joint signature of PITA and Citizens via the requisition process detailed in Section 4 C. 3 "Constrr Won Funding" shall mean the total funding available from all sources to support the design, purchase, and insta lation of the ECMs provided under this Agreement. "Constu[ tion Phase" shall mean the second phase of the Conservation Project, during which Citizens shall perform 4e services described more fully in Section(5), Phase 11--Construction, and during which Citizens shall install an construct the various ECMs. "Debt S rvice"shall mean the PHA's liability for repayment of the Construction Financing undertaken through the MunicipF Lease and Caption Agreement. The Debt Service payments are made by PHA during the Project Caperatio Phase. i "Designrid Construction Funding Phase" shall mean the first phase of the Conservation Project, during which Citizens hall perform the services described more frilly below in Section (4), Phase 1--"Design and Construction Funding' By way of summary,and not as a full definition,the Design and Construction Funding Phase shall be the phase in hich Citizens shall design, or cause to be designed, the ECMs to be installed by Citizens, as listed in Appendi B"Summary of Recommended ECMs",and assist in arranging the Construction Financing for PHA in the amount i; entified in Appendix D"Cash Flow Projection." i,� "Develo ments" shall mean the list of apartment sites and complexes identified in Appendix A which are designat d to receive ECMs and services under the Conservation Project carried out under this Agreement. "Develo ment"shall mean an individual apartment site and complex. -ECMs'i shall mean the energy conservation measures recommended for the Developments identified by Citizens and listoi in Appendix B under "Summary of Recommended ECMs", which may be installed by Citizens in accords e with the terms of this Agreement. ECMs promoting Energy Savings are not limited to equipment and may incI de services,such as Resident Energy Education as described in Section(5),"Phase 11—Construction". "Errerg Savings" shall mean the revenue stream resulting from the reduction below the Baseline utility/energy supplier3j onsuntption at the Developments listed in Appendix A. Such Energy Savings shall be calculated using the energy sts and values assigned in this Agreement and Appendices D and G hereto,resulting from.the installation of ECM and performance of services under this Agreement, as these are identified and reconciled annually by CitizenJI'duting the Project Caperetion Phase according to the provisions of Section(£t),Phase 111-Project Operation, arid en0oying the calculation contained in Appendix G"Utility Energy/Supplier Savings Calculations". �j "EnergAudit Report"shall mean that certain study,dated October 3,20012 attached hereto as Attachment 1 (and incorpo ,ted by reference herein),completed for PHA by Citizens under the Energy Audit Agreement,outlining for PHA v Vous areas in which PHA may potentially save money on FHA's energy usage, as compared with PHA`s Baselin J usage of energy, further outlining ECMs recommended for implementation by Citizens under this Agreen it,and describing the costs and services associated therewith. "Escro ;Account"shall mean the account into which the proceeds from the Construction Financing made available tilrougt the Municipal Lease and Caption Agreement are deposited. Funds from the escrow account shall be availab ei to support the services provided and ECMs purchased and installed pursuant to this Agreement. Release of fun iftom the account shall be effected by joint signature of PHA and Citizens through a written requisition proces . i ,,Exect tion Date"shall mean the date first written in the introductory paragraph,above. Etter ervices Agreement 3 PROP NARY April iR,J 20,93 a � t j I�$ "Guarar�1, shall mean the contractual obligation by Citizens, as referenced in Section (9), to provide a Conditio lj Energy Savings Guarantee. The Guarantee provided by Citizens shall be a separate written document executed�6etween PHA and Citizens in substantially the form attached hereto as Appendix I upon the ,Execution Date. "HUD" 'hall mean the United States Department of Housing and Urban Development. ,a "HUD Rhulations" shall mean the applicable provisions set forth in Title 24, Section 990 of the Code of Federal RegulatAc s, as amended or as waived from time to time, and any other regulations applicable to PHA and its subcontrA tot's issued by HUD. i "HUD S6 stdy" shall mean the amounts paid by HUD to PHA in the form of utility/energy supplier subsidies, as calculatAl according to the HUD Regulations, it "Lessee",'s PHA in the relationship with the third-party investor("Lessor's) whereby the Construction Financing is provided{;ly a tax-exempt Municipal Lease and Option Agreement, a form of which is attached hereto as Appendix C. As thy"I'beneficiaiy of the installation of EOMs within the Developments, Lessee is obliged to pay for their use in installmej its over the term of the Municipal Lease. "Lessor"i:is the third-party investor providing the Construction Financing by way of tax-exempt Municipal Lease. "Materi Changes Threshold"are alterations,or changes in use, at one or more Developments undertaken by the PHA nl it post-construction operations phase of this Agreement, which can be reasonably expected-----or measure —to increase or decrease energy or water consumption by a minimum of five percent (5%) at a single Develop ent without a corresponding decrease of consumption in another fuel. "Mansel al Lease and option Agreement" (also referenced herein as a "Municipal Lease") is a financing instruzne t which conveys tax exempt financing to a qualified public entity for capital improvements whose costs are paid iown in periodic installments over several years.In this lease transaction, the only collateral consists of the equipme t so financed. The Municipal Lease for the ECMs herein shall amortize the cost of the ECMs over a terra not to eeed twelve (12) years. (The term "Construction Financing" is synonymous and is used interchangeably with the :erm"Municipal Lease Financing".) i "Projec operation Phase" shall mean the third phase of the Conservation Project, during which Citizens shall perform the services described more fully in Section(6)below, including monitoring the ECMs previously installed under th.ia Agreement,and during which PITA will pay installments of the Municipal Lease. "Recon;f 4�illation" shall mean the annual analysis conducted by Citizens in accordance with Section(6), Phase III - Project 4pperation, and the calculations set forth in Appendix G "Utility/Energy Supplier Savings Calculations", of the actu;l utility costs and Energy Savings resulting from the installation of ECMs under this Agreement. "Reitub, rsable Expenses" shall mean the cost of photocopied construction drawings, travel expenses and other reasonable job-related expenses incurred by Citizens and/or its subcontractors when performing work authorized by PHA be and Citizen's Scope of Work hereunder,or when performing changes to its Scope of Work pursuant to a Changei6rder. Citizens' fees include Reimbursable Expenses unless additional work beyond the Scope of Work hereundr is authorized by PITA pursuant to a Change Order. zE "Requi tion" shall mean a periodic request for payment for the ECMs from the Construction Account or the Escrow` ccount. A signed Requisition,authorized jointly by PHA and Citizens,will be the formal authorization for the rele se of fiends from the Construction or Escrow Account, and will be based upon the percentage of completion of the S hedule of"Values and jointly authorized and approved for payment. Energy i ervices Agreement 4 PROPR TARY Aprrl'28 (1 f003 �f i t t "Resider , enant" "Resident"or"Tenant"shall mean any individual who resides in any apartment in any of the Develop ants and whose name appears on the lease for that unit as either the Lessee or a person residing in tine unit covered MV the lease. "Service, shall mean the services provided by Citizens required to implement the Conservation Project and all the work,se Ices,duties,and responsibilities undertaken by Citizens,as provided for within this Agreement,as well as attached spendices and Attachments. ( s "Supplei'ental Construction Funding" shall mean the PITA Cost Contribution, grants, interest subsidies, utility con-Tanyi tebates or funding, and other forms of funding or payments available to the Conservation Project in addition the Construction Financing that may be used to fund the capital and/or operating costs of the ICMs and that are 'Ihvailable for the Conservation Program through sources other than the Construction Financing. Supplemstal Construction Funding is described in Section(4),Phase I—Design and Construction Funding. "Terns"1hall have the meaning given in Section(2),Term of Agreement. "Total C ntract Cost"shall mean the total dollar cost for the ECMs and services provided under this Agreement as contained in Section(11)and Appendix E-la to this Agreement. z i PART B3 i TERMS XND CONDITIONS OF AGREEMENT 3 (1) i UMMARY OF SCOPE OF SERVICES Citi2 ns and PISA have reviewed the Energy Audit Report,which is described more fully in Section(3)below, and have used it as the basis for developing the Conservation Project and the Program. n connection with the Conservation Project,Citizens has performed or,subject to the terms and conditions of this A reement, will perform, services as indicated in the following Sections(I)A through(I)C over the term of this Agr meat. A. Phas I—Design and Construction Fundr : 'he first phase of services shall be referred to herein as the "Design and Construction Funding Phase", During t is phase, Citizens shall performs the services described in Section(4), Phase I --Design and Construction Funding,;1 B. Pha t 1I-Construction: ,The second phase of services shall be referred to herein as the "Construction Phase," During this phase, Citizens hall perform the services described in Section(5),Phase II-Construction. i C. Plsa III-Project 0 ration: he third phase of services shall be referred to herein as the "Project Operation Phase". During this phase, 0azens shall perform the services described in Section(6),Phase III -Project Operation. al Energy "iervices Agreement 5 PROhdETARY 4pril 2 12003 j 1 lE �) I D. Dur ion of Phases of Agreement: he first phase, as defined in Section(4),Phase I k-Design and Construction Funding,shall commence as of the E cution Date and continue, subject to the terms of this Agreement, until the design and the Construction Financin are complete, and all conditions to the closing of the Construction Financing, as described in Section(4) are satis d. The second phase shall commence upon the expiration of the first phase and continue, subject to the terms of is Agreement, until the later of(i) the closing of the Municipal Lease or(ii)the Acceptance Date of the ECMs la t installed in connection with the Conservation Project. The third phase shall commence upon the expiratio of the second phase and continue, subject to the terms of this Agreement, for a period that is co-terminus with the i 6rm of the Municipal Lease. The Parties agree that the tentative project schedule attached as Appendix M represent< the estimate, as of the time of Agreement execution, of the milestones for completion of design and construct bn of the measures for Phases I and 11 hereunder. I (2) ERM OF AGREEMENT i he Term of this Agreement shall commence as of the Execution Date and, unless sooner terminated in accordan e with the terms hereof, shall continue for a period co-extensive with the term of the Municipal Lease, or until suc time as PITA prepays its installment payment obligations under the Municipal Lease in full whichever is earlier("; ermination Date"). Should there be additional project financings under this Agreement to accommodate increased scope of work, the term shall be amended in accordance with the HUD approval for the term of each subseque t financing. 4 (?) ENERGY AUDIT REPORT ''The Energy Audit Report, Attachment 1, sets forth the planned Scope of Services for the Conservation Project; esign, engineering, construction and installation of the ECMs; the anticipated Construction Financing and any and all necessary Supplemental Construction Funding available; the current utility/energy supplier use or Baseline 'the currently projected Energy Savings from the ECMs; describes the recommended ECMs; and provides a Cash F ow Projection. The Cash Flow Projection shall form the basis for the Construction Financing and is based upon th !expected Total Contract Cost and Energy Savings. Appendix D, Cash flow, includes the ECMs and services that will be provided for the first development, designated in Appendix A, to be financed under this Agreemm ht. (4) PHASE I—DESIGN AND CONSTRUCTION FUNDING A. Des n Services: Specifications And Drawinus: buring the Design and Construction Funding Phase, Citizens shall, in consultation with PHA, produce designs,specifications,and drawings needed to secure qualified subcontractors in order to complete the agreed-upon rmanent Financrn Phase (the "S ecifications and Drawin s Work").Act Constxuctgrx and P � +he Specifications and Drawings Work shall be divided into three overlapping stages described more fully below. �soihematic design,design development,and construction documentation. is Schematic Design: Schematic Design shall mean illustration of strategies by which the recome�dations presented in the Energy Services Plan can be executed within the constraints of budget and applica les building codes. l � 8 �'rferg. AS apices Agreement 6 l"RCIP ETARY April t 2043 i I �l i� 3irring this stage, Citizens will detail the Summary of Recommendations set forth in the Scope of Work (Appendix;B). Areas of work will be broadly defined in light of existing conditions (e.g. equipment selection, required 'ag-term maintenance,access),and all required trades will be identified. i C}tizens and/or its design sub-consultants) will make surveys of existing conditions with reference to existing'!'s-built"building plans and physical inspection of the Premises. Citizens and the PHA acknowledge that frequent anal and informal communications will be required between Citizens and PHA in order to ensure that both bud' Lary constraints and efficiency requirements are met,and that the schematic design,as completed,will be acceptab4 to both Parties over the term of this Agreement. JDesian DevetopMent: Design Development shall mean development of the construction details, materials;4nd equipment choices,and cost estimates associated with the design strategy chosen by the PHA. 'i wring Design Development, Citizens will identify and review with PHA specific strategies for effectively installing the ECMs, short and long-term cost considerations associated with material and equipment selection,and impacts ci the Developments of modification to the existing conditions (e.g., equipment selection,.required long- term maiE ienance; access;resident comfort levels;etc.). Citizens will project and communicate to PHA,during this stage, Whether the consumption savings projections and budgetary assumptions included in the Summary of Recommhdations within Appendix B "Scope of Work," can be met after incorporation of PHA's comments ort specific 2sign details. In the event Citizens communicates to PHA that some or all of FHA's comments can not be incorporated without reducing the consumption savings projections and/or exceeding the budgetary assumptions, PHA ai4Citizens will attempt to agree to a modification of the proposed designs and/or the installation of Alternate shown in the Energy Conservation Plan so as either to preserve or modify the Conservation Project in order to df ange the consumption savings projections. i i. Construction Documentation: Construction Documentation shall mean preparation of working drawings;! nd specifications that detail the materials and procedures required to install the ECMs listed in Appendix B based d on the results of the Design Development process(i.e.,the"Construction Documents"). luring Construction Documentation, Citizens will prepare, or cause to be prepared,detailed drawings and specifieadons for the installation of the ECMs. In addition to the technical detail, Citizens will provide in the Construction Documents general procedures for the preparation of bids or quotations (pursuant to Section (5)B herein), ��s may be required by HUD or state regulations, or PHA competitive pricing policy, and the general condition and requirements of the Construction Sub-contracts) to be executed. by Citizens pursuant to Section (5)B. S h general conditions and requirements shall be consistent with instructions which may be provided by PHA an any applicable requirements of HUD. At the end of Construction Documentation, Citizens must reasonab project that the consumption savings projections and other budgetary assumptions for the ECMs containe( within Appendix B, Summary of Recommendations, may be met given the design details. If such projectio does not establish savings consistent with the savings shown in the Energy Savings Plan, Citizens must specify,i vith PIIA's reasonable approval,certain items as "Alternates" to the ECMs,to the extent necessary in order to achiev such savings. HA will review and approve all designs, specifications and drawings produced by Citizens as well as the ECMs to be leased as "Equipment"pursuant to the Municipal Lease, prior to the commencement of Construction, which aCroval shall not be unreasonably delayed or withheld. Such review and approval shall not be deemed to relieve C tizens of its responsibilities as Design Engineer and Construction Manager under this Agreement. v. Comrnissionin Plan: Prior to the completion of Phase I of the services hereunder, Citizens shall prepare Commissioning Plan for the equipment installed under this Agreement. Such Plan shall describe the design p ranteters of the equipment to be installed, as well as provide a plan for start-up and maintenance of the ECMs irtalled hereunder. EnergyfOrvices Agreement � PROPRIETARY April 28);;.2003 I,' i1 i i 'i Electric Distrlbuf ou_Ownerslui Transfer: With respect to the transfer of ownership of electrical distrihuti systems located at the Bayo Vista, El pueblo, and Alhambra facilities, Citizens will meet with represen Ives of Pacific Gas & Electric Company ("PG&E) to review ownership transfer agreements between PG&E aContra Costa, assist IIACCC in negotiating transfer terms for this transfer, review the technical design and spe4 iication documents developed and provided by PG&E, and obtain subcontractor quotations for the upgrades, ' er the requirements specified and shown on the drawings and specifications provided. by PG&E and pursuant' o PG&E's representations, necessary to comply with the approved design standards for the electrical system i} accordance with local codes and requirements including the State of California 0095 standards. The design ao engineering analysis required for this measure shall not be the responsibility of nor within the scope of work of itizens; rather, the parties understand that such analysis will be conducted directly by PG&E. Citizens' responsil,lity for this measure shall be to assist and oversee the installation of a measure that has been designed by other licJ,sed and skilled professionals. Citizen's shall have no liability or responsibility for and does not warrant or represen 0 correct or compliant, the design or engineering of this measure and shall only be responsible to oversee the insta lation by subcontractors in accordance with the design provided by PG&E and approved by HACCC. In addition,Citizens makes no representation or warranty that the design and specifications as provided by PG&E meet State of ;alifornia G095 standards or will result in PG&E's acceptance of transfer of ownership of the electrical distribut"b n at the above sites. Citizen's fee for such services shall not be conditioned on the acceptance of such work by PG&E, provided Citizens and its subcontractor have completed the work according to PG&E stated specifics dons. B. Chae€ s To The Estimated Total Contract Cost&Scheduled Values During Phase I- t the completion of Phase 1,Design and Construction Funding, and upon receipt of estimates for the cost of the E'�Ms to be installed hereunder, then PIIA and Citizens shall review the project budget and any other factors which Blit affect the Total Project Cost and identify whether or not the proposed energy savings, combined with any sup emental funding, are sufficient to pay for all contract costs, including annual service fees. To the extent the budt is not sufficient for this purpose, the PHA and Citizens may either alter the ECM list to exclude items that willj'not be included in the project, or identify additional funds (from PHA, utility contribution, or other) to support J re project, To the extent the PHA and Citizens cannot reach reasonable agreement on the revised scope of work, th provisions of Section(15)A,Termination,will be invoked and PITA shall pay Citizens the actual costs of all wor completed and approved for payment as of the point of termination, up to the limits established in Append E-I(d). Such actual costs and expenses incurred by Citizens to provide such pre-construction services shall bestablished by documents such as personnel time logs, receipts, invoices, and such records and verification as the PIA may reasonably require, 3 ,In the event that the Parties agree upon a Revised Scope of Work for the Premises(e.g., a revision to the scope o{ work provisions of Appendix. B) and, as the case may be, a Revised Schedule of Values, a "Revised Utility/ upplier Energy Savings" (a revision to Appendix G),debt service for the Performance Contract Financing, as defin �in Section 4,a Revised Summary of Recommended ECMs(a revision to Appendix B)or a"Revised Cash Flow Pi4l�jection" (a revision to Appendix D), the Parties shall attach such revised Appendices hereto. From that time fo -aid,unless further revised,each of those revised and updated schedules shall be deemed to be the relevant Appen i, without regard to whether they are subsequently referred to herein as "Revised Appendix or "Appe x as revised", or in some other way which indicates their revisions. The quantity, quality, dimensions, type or ther characteristics of the ECMs may be changed only by mutual written consent of the PHA and Citizens (and, fere required by the Municipal Lease, the Lessor). In addition, the Scope of Services may be reduced or expand r to include other energy ECMs not included within the EOMs listed in Appendix B, as mutually agreed upon i 4rriting,consistent with the provisions of Section 18. in the event of any failure of the Parties to agree on revisions to the Conservation Project at any such time either 4ty may terminate this Agreement in accordance with Section(15)A. i Energj Services Agreement 8 PROP 4 TARP April 28, 003 i i I i C. Con�t�uction Fixtancing: i. !During the Design and Construction Funding Phase, PHA shall, with the assistance of Citizens, apply for and enter into the Municipal Lease. The Construction Financing shall be in an amount consistent with the Cash Flow Projection, attached hereto as Appendix D "Cash Flow Projection", as may be amended from time to time. The Parties intend that the amounts of the Construction Financing and Supplemental Construction Funding, includii4 if applicable, any PHA Cost Contribution and Utility Company or other Funding and Rebates, as these terms air defined in this Section (4), shall collectively be sufficient to pay the Total Contract Costs, Any expendites trade as part of the Agreement shall be expressly justified by reference to proceeds available from the Construe on Financing or any Supplemental Construction Funding. Citizens and PHA shall agree to all reasonable amendments to this Agreement,as may be required by the Lessor;p ovided,however,no such amendment shall cause a material adverse impact on the rights or obligations of Citizens br PHA hereunder without the M#, consent of the Party so affected, which consent may be withheld for any reas6n. E.' Ii. HUD Incentive for Conservation Savings: PHA shall,with the assistance of Citizens,apply for all necessa " approvals and authorizations and enter into all necessary agreements to receive from HUD, pursuant to applicab , federal laws and regulations, all applicable utility savings incentives, including, without limitation, written Approval of the exception to conventional calculation of the utility subsidies pertinent to this Agreement ("HUDubsidy")in accordance with the applicable HUD regulations, which allow said subsidy to be fixed between PHA at tri HUD at levels determined with reference to the Energy Savings and Total Contract costs. All such agreente�ts, approvals and other authorizations, pursuant to which the HUD Subsidy shall be paid in accordance with the contents of Appendices D and G,shall be attached hereto upon receipt and made a part hereof as Appendix L,HUD i pproval Letter. V D. 5u lemetttal Constrttctian Funding: I i. Utility or Other Company Funding and Rebates: In addition to providing assistance to PHA in obtainink the Performance Contract Financing, Citizens shall assist PHA in applying for grants, interest subsidies, Utility 4 other company rebates, and other forms of funding or payments available from third parties to fund the capitaltd/or operating costs of the ECMs as may be reflected in the Gash Flow Projection which is included as Append''x D, "Cash Flow Projection". Citizens makes no guarantee that Utility or other Company Funding and rebates ill be obtained through or on account of its efforts. The Parties anticipate that funding will be available from P(Y&E and several water utilities in approximately the amounts specified in Appendix D, as incentives available to support the measures under this Agreement. 1 i Any amounts paid by electric or gas utilities or any other entity to the PHA or Citizens as demand side matagement or system benefit rebates or incentives in connection with this Project will be applied for the purpose of this Project. PHA acknowledges that Citizens is a contractor independent of any utility, is not an agent or affili �te of any utility,and does not represent any utility in any capacity. i To the extent that the final amount of the Construction Financing is dependent upon the receipt of Utility r other Company Funding and Rebates,the attached"Cash Flow Projection"contained in Appendix D shall be revilIbd accordingly by the Parties to reflect the final amount of all such forms of "Revised Utility or other Compa#y Funding and Rebates". { Should Citizens pursue additional Utility or other Company Funding and Rebates expressly authori bd in writing by PHA, and on behalf of PHA, during the Design and Construction Funding Phase that ate not e4essly incorporated as of the Execution Date of this Agreement in Appendix D, Cash Flow Projection, � Ener Services Agreement 9 t'Itt7PRTAiRY ,4pril2 ; 2003 is I� 1 �i. Citizens ird the PHA shall negotiate an amount due to Citizens,if any, for securing such assistance. Subject to the requirerd ts, if any,pertinent to the receipt of such assistance,PHA and Citizens shall apply the funds received to offset the onstruction costs hereunder, as well as any applicable monitoring and verification requirements that may be requif d by the providers of such assistance. As of the date of execution of this Agreement, the anticipated availabi tility or other company funding shorn in Appendix D is$145,000. E. Final A reement to Project ct Scope and.Level of Guaranteed Savings: he Parties intend and anticipate that the Energy Savings guaranteed hereunder shall be not less than one hundred''ercent(100%)of the amount required to recover the Construction Financing on a debt service requirement basis ovO the term of this Agreement. Prior to entering into the Municipal Lease, should the effect of changes in Total Cq},tract Cost, supplemental funding, interest rates or other cause result in the Guaranteed Savings hereunder to be les�than one hundred percent(100%)of the amount anticipated to be required to recover the investment cost of thisP,oject on a debt service requirement basis over the term of this Agreement, Citizens and PHA agree to mutuall}ii and reasonably attempt to negotiate a reduction or modification of the Total Contract costs by removing compoalits of the ECMs to be installed pursuant to this Agreement or substituting alternative ECMs in order that the guarEjnteed Savings hereunder shall be an amount equal to or not less than one hundred percent(100%) of the arrtoun#required to recover the investment cost of this Conservation Project on a debt service requirement basis over the term7pf this Agreement. Prior to entering into the Municipal Lease, in the event that the Parties cannot agree to so reduce or modify the cos4 of construction in circumstances wherein the Savings guaranteed herein are less than one hundred percent (100%)6f the amount required to be paid under the Municipal Lease, PHA and Citizens shall each have the option, exercisa le upon written notice to the other Party, of neither proceeding with the installation of the ECMs not, on the part ` f PHA,entering into the Municipal Lease. In that regard,PHA acknowledges and recognizes that Citizens has inc red and will incur further costs and expenses relating to the pre-construction services described in Section (4) here n. In the event that PHA exercises that option, PHA shall pay Citizens the actual costs and expenses incurredby Citizens to provide such pre-construction services, as documented by personnel time logs, receipts, invoices and such records and verification as the PHA may reasonably require. Any amounts paid to Citizens shall be net o any amounts paid to Citizens pursuant to this Section(4) for the same costs and expenses. Any amount paid to Citizens under this Section shall not exceed the amount specified in Appendix E-1(d)for termination during Phase l f the Agreement. F. Cot sW ction Financin )nstxament: The Parties agree that the instrument by which the Construction Financing shall be secured shall be a Municif al Lease and Option Agreement. i. PHA hereby represents and warrants to Citizens that, subject to the terms and conditions hereof, including but not limited to the ability of the PHA to secure approval of governing authorities,PHA will enter into a Municial Lease with a third party lessor(„Lessor")in a form substantially similar to that attached hereto and made a part hreof as Appendix C. ii. FHA's obligation to make payments pursuant to the Municipal Lease and payments from the Constnj tion Account and applications for payments with respect to the Escrow Fund will commence on the date that funds are deposited in the Escrow Fund("Municipal Lease Commencement Date"). iii. The Construction Financing will commence upon the deposit into an Escrow Account by the lessor bf funds available from the Municipal Lease. PHA acknowledges and understands that the amount of the Mruiical Lease payments will be subject to current market conditions at the time of final credit approval on the Muni4al Lease and that the effectiveness of the Municipal Lease will be subject to final credit approval. PHA further j cknowledges that its responsibility for the payments to be made to Citizens for any the services described in 3 I 10 Ener, jj'�erviees Agreennent April 2M 2003 �i it i! i! I a this Agr trent are in no way contingent on the effectiveness of the Municipal Lease. PHA shall execute an incumbe� y certificate(included within Appendix C)as evidence of the authority of signatories to this Agreement. Y. PHA represents that it is a governmental entity and that it shall cooperate with Citizetrs acrd provide Citizens( 'ith appropriate documentation so that Citizens may establish that neither it nor any Lessor under the Municipi 11 Lease(as defined herein)shall have to pay taxes, fees and assessments or other charges of any character which to V be imposed or incurred by any governmental or public authority including,but not limited to,a State of Californ sales tax exemption certificate, or its equivalent, as an incident to title to, ownership of, or operation of the ECIv 'or with respect to the interest component of the Municipal Lease payments which would otherwise be levied un or in respect to said interest component or of the ECMs or its operation. To the extent that PHA may be found no jto be exempt from certain taxes by a court of law, the rates for the Services hereunder will be subject to such app `gable taxes and surcharges,at PHA's additional cost. PHA will arrange for Citizens to be provided with a Californi 1 State sales tax exemption certificates or its equivalent for Citizens' use in performance of the Services under thi :Agreement. !. Liens and Attachments: In the event a mechanic's lien or stop notice is filed with respect to work performs pursuant to this Agreement or against any payment due or to become due under this Agreement, or by reason o :any other claims or demands against Citizens, Citizens shall promptly cause such lien to be discharged in accordan " with applicable state or federal law. PHA will withhold suras on account of such liens in accordance with the plicable requirements. Notwithstanding the foregoing, Citizens reserves all of its rights under such law and does 'of waive any rights which it may have under same. Consistent with the provisions of Section(5).A.iii of this Agr went, Citizens will provide performance and payment bonds on this project totaling 100%of the contract price in 1, pendix E-I(a). G. Con 'tions to the Commencement of Construction: �ihe following events (in accordance with the applicable provisions of this Agreement) during the Design and Con truction Funding Phase are conditions precedent to the commencement of the Construction Phase and the closing a the Construction Financing: s! i. PHA entering into the Municipal Lease: h. Execution by PHA of any agreements required for receipt of Supplemental Construction Funding as defined i Section(4); fl 1 iii.Receipt of all necessary approvals from HUD, execution by HUD and PHA of all necessary agreemet is in connection with both the Conservation Project and the receipt by PHA of approval of future subsidy payment, related to the"HUD Incentive for Conservation Savings"(as described in this Section(4);and tv, receipt by or on account of Citizens and/or PHA of all necessary permits,licenses,approvals and other goal amental or non-governmental authorizations needed for the installation of the ECMs. Each of the foregoing approvals and authorizations entered into or received by Citizens shall be subject to the revi W and approval of PHA, which shall not be unreasonably delayed or withheld. Any such approval shall be deemed '�asonably withheld if the rights or obligations under this Agreement of the Party withholding its approval are mate ally adversely affected by the agreement,permit,license,approval or authorization in question. M S `le Installations: i' Eprior to beginning the work hereunder, Citizens will provide product cut-sheets and PHA, at its option, may rea,unably request to have Citizens provide a sample installation of any of the following ECMs to be installed; lightistg toilets, and other appliances. PHA shall furnish its written approval or disapproval of each installed ;Energy krvices Agreentent I 1 PROP T ARY April 211. 2003 I i 1 i sample E M or each such product cut-sheet within a reasonable time-frame,not to exceed thirty (30)calendar days followin Ats receipt of written notice by Citizens of completion of each such sample installation or the provision of such pro ' ct information to PHA. PHA's approval of such sample ECMs or product information shall be in substant itly the form of Attachment K hereto. If PHA disapproves any such ECM, Citizens shall have the right to provide I substitute ECM which conforms to the applicable specifications or is equivalent to any applicable sample provide i €o and approved in writing by PHA hereunder. Citizens shall revise the Attachments to reflect each such substitut n,subject to PHA's written approval of each revised Attachment. In the event PHA does not approve of any suct i substituted ECM's or specifications and Citizens has no specific right hereunder to provide a substitute ECM,th Parties hereby agree to negotiate a mutually acceptable solution. PHA shall not unreasonably withhold or delay an 'approval provided for herein. (S) ?� HASE II—CONSTRUCTION A. Co ction: J. During the Construction Phase,Citizens shall furnish all labor,materials and equipment and perform all work re irefor the completion of the Scope of Work set forth in Appendix B, including the installation of the ECMs li edd therein, as Appendix B may be revised from time to time in accordance with the terms of this Agreem t. 'i. At all times relevant to this Agreement, Citizens shall permit PHA or any of its representatives to enter upon the Project site to inspect, test and approve both the work conducted in the facility, during construction and operatio , and to access the books,records,and other compilations of data which pertain to the performance of the provisiol and requirements of this Agreement, including attendance of the Agency's representative at relevant on- or-off-sii meetings of Citizens and/or its subcontractors. n. Citizens shall provide 100% Performance and Payment Bonds to the PHA upon the execution of this Agreem_nt and commensurate with Citizens' receipt from PHA of an irrevocable Notice to Proceed. Such bonds shall be n a format and from a surety company acceptable to the PHA and the lender, and shall total 100%of the total coin act price found in Appendix E-I(a). B. Labor And Material For Construction: Citizens shall ensure that all laborers shall be competent to perform the tasks undertaken, that all material and equipment provided shall be new and of appropriate quality,and that the completed work shall comply with th requirements of this Agreement. Citizens and its Subcontractors shall comply with applicable Section 3 and M BE goals as specified by the PHA. As of the execution of this Agreement, the parties agree that there are no spect is MWBE goals required for this project. I1. Citizens shall solicit pricing from qualified Subcontractors, and major equipment vendors ("Cons Ction Subcontractors") for the purpose of reasonably minimizing the cost of the construction and iustalla 6 of the ECMs contained in Appendix B. With respect to the selection of Construction Subcontractors, Citizeng'shall comply with all applicable requirements and in furtherance, and not in limitation thereof, shall encoura e the involvement of Resident-owned Businesses and local minority and women-owned businesses by makingH o called "outreach" efforts through newspaper advertising, mailing lists and direct telephone calls. In all cases v, `ere competitive bids or quotations have been solicited, Citizens, in consultation with PHA and subject to PHA's advance, written approval, will evaluate and negotiate the quotations received. Citizens and its subcon Ictors will comply with the HUD General Conditions for Construction, applicable provisions of Section 3 and M $E policies of PHA,and state labor law. HA hereby warrants that any applicable governmental procedures and authorizations for securing such bids orl6otations from Construction Subcontractors and/or materials suppliers have been fully disclosed to Citizens nerg}services Agreement 1 J� RROP T'AU'T' April 2 , 003 � i � f I G: prior to he execution of this Agreement. If costs or charges are incurred by either Party to solicit bids or t4" cancel contractwhen the original determination regarding bidding was made in error, such costs and charges shad be for PHA's a zount. l ,All Construction Subcontractors, consultants, and subconsultants ("Subcontractors") that Citizens uses to performthe work hereunder, are subject to the prior written approval of PHA, which approval shall not be unreasonably withheld,but such approval may be withheld for contractors that are determined to be non-res onsible based or: (a)information contained in the List of Parties Excluded from.Federal Procurement or Non-proc ement Prograrrm , published by the United States General Services Administration Office of Acquisition Policy for any successr list}, or(b)prior defaults or non-responsibility determinations of the contractor by PHA. Upon election of Subcontractors and approval by PHA,Citizens shall provide PHA with copies of its subcontracts for cons ction. Citizens agrees to reasonably assist PHA in making a claim under any insurance policy of a Subcon ctor of Citizens I. but not limited to, completing and submitting any required forms or providing any equired information to enable PHA to recover on its claim. Citizens' Consultant, Sub-consultant, and Subcontractor agreements shall include a provisionn that the Subcon actors shall indemnify, defend and hold harmless PHA and HUD, their governing board, officers, employe, s and agents, from and against all claims, suits, damages, costs or any other liability whatsoever esulting from orl arising out of the Subcontractor's performance of, or failure to perform, the work for w ich the Subcon actor has been retained,in the form shown below: "The Subcontractor shall protect, indemnify and hold harmless PMA and HUD, their governin boards, �officers, employees and agents, from and against all liabilities, losses, claims, damages,judgments, fines, penalties,causes of action,costs and expenses(including without limitation,attorneys' fees,court osts and expenses)imposed upon or incurred by or assessed against PHA resulting from,arising out of or r lating to Jthe performance of this Agreement. The obligations of the Contractor under this provision shat survive ,any expiration or termination of this Agreement and shall not be limited by any enumeration erein of required insurance coverage." 'Citizens agrees to reasonably assist PHA in enforcing the indemnity provision above includin but not limited t�,providing documentation requested by PHA. 6 /Not Deemed PHA Etpployees: No person assigned to perform work under this Agreement bill Citizens shall be, eemed to be an employee of PHA for any purpose. ttalified Personnel: Citizens shall employ only qualified and competent persons and Subcontractors in the provision of Services to be performed hereunder. If, in the opinion of PHA, Citizens violates such obligation, after providing Citizens notice and five (5)business days to cure, PHA, in the reasonable exercise of its drssr Ston,may demandithat the unqualified and/or incompetent person be replaced and not again be employed in time pe`formance of this 1greement, which demand shall be complied with by Citizens as soon as practicable, considerin iCitizens' need to¢btain a suitable replacement employee or Subcontractor. j 11 k Independent Contractor: In performing the Services hereunder, Citizens has the status of aniependent contract. Neither Citizens nor its employees nor its Subcontractors are to represent themselves tole, or be deemed ito be, employees or agents of, and shall have no power to bind, PHA. Citizens is solely respt nsible for paymen ofatl cornpermsation owed to its own personnel and its Subcontractors, as well as for payment of all einplo at and other similar taxes (subject to other provisions of this Agreement relating to axes) and liabilit4 incurred by Citizens or its Subcontractors. Prevailing Wages: Citizens shall pay the required wage rates for work in connection with t'is Project pursuan�to the federal Davis-Flacon wage requirements as specified by the PHA. Entergy iervices Agreement ? l PROP 1sTARY April 28i 2003 i ii w r j j iii. Revised Scope of Work: Based on the final measure pricing and the funds available front sources of Construction F ding , Citizens and PHA shall agree upon the "'Revised Scope of Work" for construction which shall not excee I in cost such available funds consistent with the "Revised Cash Flow Projection" included in Appendix D, Ca It Flow Projeeti n. Without limiting the foregoing,Citizens and PHA acknowledge that changes daring the design�,aud the bidding processes may result in"Revised Energy Savings"which cannot support,after consideration of the"devised Utility qr Other Company Funding and Rebates" available for such purposes, the "Revised Construction udget", notwithstanding the best efforts of the Parties to revise and reconfigure the Conservation Project. on the agreement of the Parties as set forth above, Citizens shall submit to PHA in writing the "Revised Scope o Work" and a"Devised Construction budget". The"Revised Scope of Work" and"Revised Construction Budget"s all then become` part of this Agreement by inclusion in Appendix B,Summary of Recommended EOMs. Any failu e of the Parties o agree on revisions to the Conservation Project at this time may result in an early terminatio of this Agreem nt in accordance with Section(15)A,Termination for Failure to Agree on Revisions. iv. Adsustment to Cash Flow Prosection: Citizens shall, as required, and in consultation wi It PHA, prepare he "Revised Cash Flow Projection" to reflect the "Revised Scope of Work" and the "Revised Con truetion budget"�on the basis of the bids and/or quotations,including any negotiated pricing. G C. Construction Pro'et ct Management: 9 During the Construction Phase, Citizens shall undertake in a timely fashion the activities re uired of Citizens: as described in this Section 5(C), including, without limitation, the oversight of ECM-related activity conduct�d at the Developments as provided for within the"Summary of Recommended ECMs"(Appendix 1 ). i. Project Manager: During the Construction and Permanent Financing Phase, Citizens shall serve as "Project Manager"on behalf of PHA,and shall,in consultation with PHA,schedule and oversee as describ d in this Section (C), installation of the ECMs included in the "Summary of Recommended ECMs" (Appendix B)`. In this role, Citizens shall supervise and inspect the quality of the subcontractor installation of the measures. Citi'ens shall designaie a key staff person as "Project Manager" under this paragraph and such personnel shall coor4inate all installation activities and communication with the designated Project Manager for the PHA. Once designated, the Citizens"Project Manager" will not be changed without the prior,written consent of the PHA,and,if such'change occurs,will be replaced with personnel of equivalent experience and qualifications. ii. Prime Contractor: During the Construction and Permanent Financing Phase, Citizens s4all serve as "Prime Contractor" on behalf of PHA for, and directly contract for the installation of, such ECMs included in the "Revise I Summary of Recommended ECMs" (Appendix B). With respect to the transfer of ownership of the electrical distribution systems located at the Bayo Vista, El Pueblo,and Alhambra facilities, Citizens will fupervise the selected subcontractor's work for compliance with the design and specification documents provided directly to HACCCI by PG&E. Final determination of compliance of the work will be made by PG&E,and Citizens i�,ill not be held liable for or have any responsibility related to PG&E"s acceptance or rejection of the transfer of ownership except to the extent the work provided by the subcontractor does not comply with the standards and spe4 fications provided by PG&E's licensed professional engineers.Any disputes related to the acceptance or rejection o file work by PG E, shall be handled by HACCC or if requested, by Citizens; however, such additional world shall be conside ed outside of the contract scope and the parties will negotiate an appropriate fee and schedule for the additional work. 1 (� it iii. Project Schedul„ ing: PHA and Citizens shall mutually plan the scheduling, and coordinat'on of the construction work. The construction work will be planned to reasonably minimize the interruption oft;tbe daily routine�f and services provided to PHA's staff and residents except as permitted in writing by PHA. Cit ens shall prepares milestone schedules and shall outline and track the schedule of work for all significant hales of Energyi erplcesAgreentent 14 PROPRf ETARY April 28,1 2003 I i i i ff i( I ? construction, and shall produce written progress meeting minutes or monthly progress reports for PHA on a! ercent connplet[on summary with each requisition submitted for payment. In no case shall Citizens be responsible for delays in the Conservation Project caused by the failure of PHA, or others under contract with PHA, to s;liedule and/or coordinate work with the work to be performed for Citizens under the Construction Subcontracts orrcaused by the failure of PHA to provide access or perform any other obligation related to the construction work. iv. Access: PHA shall provide such reasonable access to the Developments for Citizens and approved Subcontractors at all times during the course of the work hereunder. Citizens may access occupied apartme is upon forty-eight (48) hours written notice to the residents. PHA will cooperate with Citizens by authorizing and facihtati�g issuance of notice to residents in a timely manner and otherwise, by encouraging and promoting a cooperative relationship between Citizens and residents of the Developments and to accomplish its wor during normal business hours. Citizens shall use its best efforts to avoid disruption of services or inconvenienc to the resident of the Developments. If Citizens or its approved Subcontractors require access to the Devel pments outside of FHA's normal business hours, Citizens will notify PHA of this need during normal business hofnrs, and Citizensand its Subcontractors will comply with any PHA security requirements regarding aper-hours accesf. v. Requisitions and Direct Payments: Prior to submission of Requisitions for payment, Citiz s shall provide la Schedule of Values for PHA itemizing the budgets for each ECM, contingency, fee catego es, and overhead and profit categories. Citizens shall produce,or cause its subcontractors to produce,using applica le HUD payment# forms and the AIA G701 and 702 forms, requisitions for payment by PHA for completed rk and includin a sworn statement by Citizens that: (1) work covered by the requisition for payment being sub tied has been completed, and(2)Citizens has paid Construction Subcontractors and Materials Suppliers for work f r which (a)previ us Requisitions for payment were submitted by Citizens and(b)payment was received from PHA subject to any retainage provisions included in the Construction Contract Documents. PHA shall approve all s bmitted requisitions ns prior to payment. PHA shall make all reasonable efforts to approve or to pay requisitions wi in thirty (30)days after approval. y Where PHA is directly responsible under this Agreement to make a direct payment to Citizens or work perform4d hereunder, PHA shall make all reasonable efforts to pay Citizens such amount within thirty(30 days of approving Citizen's written request for the same. Such request shall include Citizen's written statement of he basis for the+meat and set forth such other information as PHA shall reasonably require for its approval. vi. Construction Accounting: Citizens shall track all Requisitions of the Conservation Project rid shall provide PHA with reports illustrating all activity in the Construction and Escrow Accounts at appropriate 'ntervals, but not 1�ss fi-equently than monthly. The reports will summarize the "Revised Scheduled Value",payme'ts under properlyj approved Requisitions to date, remaining amounts due under change orders and addenda,and the balances available' in the Construction and Escrow Accounts for contingencies and reserves. Citizens shall r quire its Subcoutiactors to maintain applicable weekly payroll and MBE utilization forms for submission with re uisitions and for approval by the PHA. Ivii. final Inspection of Construction Contract Work: Citizens and PHA shall make a final i�spection jointly upon} completion of work performed directly by Citizens under this Agreement. Before final p''ymen# is made, PHA shall approve the work in writing. PHA shall not withhold such approval or final.Ipayment unreason ably. r {viii. Waiver and Release of Lien: Before any progress or final payments are released, Cit' ens shall secure Tm each supplier to Citizens and each Construction subcontractor or supplier, a lien release, ertificate and/or a (davit, as may be appropriate under the circumstances, that each such supplier, or subcontracto 1has been paid to the extent required. The form of any applicable waiver or release documentation required by HUP shall be included in each Construction Contract or other Construction Document and shall be executed and delive0o by each Conshu�tion Contractor, supplier or other contractor from time to time, as required by HUD. Conditional lien releases land waivers may be provided by Citizens or Construction Contractors where required prior toreceiving payment!for work covered by any waiver and release of lien. Energy 4ervices rlgreernent 15 PROP.R ETARY April 28,{2003 i i I i I !i f ix. equipment Qwners Ownership and title to the ECMs referenced in Appendix B a� d each r e (Appendix F will automatically transfer to the PHA once installatio of the Deliver} and Acceptance Cert�f cat App } y equipm nt has occurred and upon both:(a)the delivery of each such Delivery and Acceptance Certificate by PHA to Citizens the execution and delivery of which shalt not be unreasonably withheld or delayed,and(b)camp etion of all PHA�'s payment obligations to Citizens or payment authorizations with respect to Citizens, excluding ayment obligations related to maintenance or other annual services hereunder. X. Treatment of Hazardous and Talon-Hazdaus Ma_,_,tr_ials: Citizens, at its cost, shall be responsible for disposal of all non-hazardous equipment and materials which are rendered useless and removed as a res t of the installation of the ECMs pursuant to this Agreement. 3 In addition, Citizens shall,at its cost,cause all lamps which are classified as hazardous wastes by lie rules and reg,lations of the U.S. Environmental Protection Agency(40 CFR Parts 260 through 279)and/or the a plicable State regulations and PCB-contaminated ballasts, if any, which have been rendered useless and removed a a result of the installations of the ECMs to be transported and disposed of; All other existing PCB-coutaminatec ballasts lamps mid any other hazardous materials not part of Citizens' scope of work, however, remain the respons bility of PHA anil Citizens shall assume no liability in connection with their removal,transportation and disposal. ICitizens' Scope of Services is predicated on the viability of this Conservation Project without any asbestos abatemet being required of Citizens. To the extent possible,Citizens will determine during the design pr 3cess the areas wl ere asbestos abatement will be required prior to construction and will provide written notice to th PHA of such arias. During construction, in the event that: (i) Citizens encounters any friable asbestos which is in the immedite vicinity of Citizens' work, or (ii) Citizens determines that its work will result in the dis ance of asbestos material, or (iii) Citizens determines that the presence of asbestos material will impede Citize s' work, Citizens:will notify PISA of the same and PHA. will, at its cost, cause the asbestos to be promptly and properly removes, enclosed, encapsulated or otherwise abated in accordance with applicable laws and regul tions, or alternate ely,PITA, at its cost, may provide written test reports showing that asbestos in that area has bee ,properly remove,enclosed encapsulated or otherwise abated in accordance with applicable laws. In the event Citiz ns cannot etermine whether any particular material does or does not contain asbestos, PITA, upon Citizen' written request,twill, at its cost, promptly perform tests or cause tests to be performed in order to determine whet er or not such m4terial contains asbestos and/or whether there are unacceptable levels of airborne particulat material containing asbestos or provide such a test report. Under no circumstances, shall Citizens be required o handle asbestos. In the event it encounters asbestos which materially affects its progressing of the work of th Project, Citizenat its option,may demobilize and cease construction in the area affected by the presence of as 'stos until such time as PHA perforins the actions required to be performed by PHA which are described in this Subs ction, In the event that PHA does not promptly take action as provided herein, Citizens may, at its option,either r move the affectedj area from its Scope of Services hereunder (and make commensurate adjustments to the fights and obligations of the Parties)or tenrunate this Agreement in its entirety.PHA shall be responsible for costs r erred by Citizens that pertain to delays caused during construction due to the presence of asbestos, or shall tend the timefra e for completion of construction without penalty hereunder. To the extent such delay affects the eginning of the rmanent financing repayment under the Municipal Lease, the PHA shall not penalize Citizen for such delays t at affect the energy savings hereunder. xi. Resident Education and Training: Citizens shall,during construction, schedule and hold minimum of two{ )on-site educational seminar(providing a total of eight(8)hours of training)at no additional c t to PHA for the esiden#s of each of the Developments and shall supply a newsletter to inform residents about e ECMs installe under the Conservation Program. Citizens, in conducting such seminars and distribut"trig such nwstetters, shall fol ow all manufacturer-recommended procedures without thereby endorsing or guaranteeing such procedures. Citizens]shall be available on a time and expenses basis to provide additional seminars, training workshps and/or newsletters as requested by PHA for additional services as provided for in Section I I(D) "Fees" for !� dditional Servicesi,at the rates set forth in Appendix E-lc"Energy Service Fees and Expenses." Energy ervices Agreement � 16 POR 2rtRY April 28,2003 I E I 1 xii. Management and/or Maintenance Staff Training: Upon completion of constructio l[of the Conservation Project, Citizens shalt schedule and hold, at no additional cost to PHA, up to two educational �ssions or training workshops, as needed, for the management and/or maintenance staff at appropriate locatio , each session io be approximately four(4)hours, and Citizens shall distribute manuals and other educational mal as may be available from manufacturers of ECMs and Construction Subcontractors. Citizens, in conducti :g such seminars and workshops, shall follow all manufacturer-recommended procedures without thereby endo ding or guaranteeing such procedures. Citizens shall be available on a time and expenses basis to provide at ditional senunar}, training workshops and/or newsletters as requested by the PHA for additional services as provid,l for in Section 11) D "Fees" for Additional Services, at the rates set forth in Appendix E-1c, "Energy Service lyes and Expenses",to provide additional seminars and/or training workshops as requested by the PHA. D. 3 Systems and Equipment Manual: (} t 1 Upon completion of construction of the Conservation Project, Citizens shall compile manu cturer- provided literature on the operation and maintenance of the ECMs, including such preventive 1nailenance requirer>ents as may be required by the respective equipment or systems manufacturers, for reference by tl e PHA. Such Mid nuals will include the manufacturers' and installing contractors' warranties for equipment an work perform under the Agreement. Citizens, in compiling such literature and information, sha11 inc de all manufauner-recommended procedures without thereby endorsing or guaranteeing such procedures, al id shall provide Three(3)copies of such manuals to PHA for distribution to applicable maintenance staff. Upon coi 1pletion of the f161 Scope of Work for Phases I and 11, Citizens will provide to PHA a single comprehensive sch dule of necessary preventive maintenance for all installations for the five(5)years following the contract close-out. E. "As-guilt"Documentation Ifour CitizOns will prepare and furnish to PHA, within thirty(30) days of completion of Construction, (4) copies o "As-Built"Drawings in native AutoCad release 14 Format(rain.),as applicable. F. Warran Citizens covenants and agrees that all equipment installed under Construction Subcontracts as pa t of this Agreem�ut is new, in good and proper working condition and protected by appropriate written warranties as describe#d in this subsection 5(F). Citizens shall require all Construction Subcontractors to provide to PHA and Citizens materials d labor guarantees and warranties for a period of not less than one(1)year on all improvements installed under Con truction Subcontracts as a part of the Conservation Project. For ECMs installed under Construction Subcontracts, Citizens shall require equipment manufacturers to provide a warranty period consistent with the standard in the ind istry but in no a ent less than one (1) year, and Citizens agrees to cooperate and assist in the enforcement of any such warrantv during the warranty period. All such warranties shall specify that only new, not used or recoi ditioned parts, r y be used and installed when repair is necessitated by malfunction. CITIZENS PROM ES NO LITHE PERFORMANCE ANI) SERVICE WARRANTY OR GUARANTEE, EXPRESS OR IN.PLIED, INCLUDING BUT NOT LIMITED TO, 'WARRANTIES OF FITNESS FOR A PARTICULAR P RPOSE OR M RCUANTABILITY OR SUITABILITY FOR ANY REPORT, RESIGN, ITEM, SERV CE OR OTIIE RESULTS TO BE DELIVERED UNDER THIS AGREEMENT, UNLESS SPECIFICAL Y SET FORT IN THIS AGREEMENT. G. Citizens'and PHA's Representatives: Citizens' senior representative for this Agreement is Janice DeBarros, Vice President, or his/her designee or succrissor("Citizens' Senior Representative"). Citizens' Senior Representative is the primary contact '� garding Energy�ervices Agreement 17 PROPRI'ET'ARY April 2d, 2003 I 1 i ` 4 ; I is I i� f I� Accepta ce certificate provided by PHA to Citizens hereunder), an annual year-end reconciliation of vings achieve( for the project. Any major deviation from budgeted annual savings shall be thoroughly investiga d and reconciled by Citizens and PHA pursuant to the Conditional Energy Savings Guarantee. !� C. HUS 3 Utility SubsidyForm: ! I I Citizens shall assist PHA in preparation of pertinent annual HUD forms 52722 and/or 52723 on regi st. )rD. Ne sletters: i Citizens shall produce a semi-annual Energy Newsletter for each Development listed in Appendix`, . The Newsle er will inform residents about the ECMs installed under the Conservation Program, describe eurren energy use and/savings, and offer ideas on how residents can reduce energy waste. PHA and Citizens will utually determi e the distribution method for such newsletters. E? Sit Visits: f 4; i; Bach year throughout the Project Operation Phase of this Agreement, Citizens shall visit each DeveloF ment and a sample of the EOMs installed under this Agreement.This visit is intended to determine vheter or not tic ECMs are operating properly and are being maintained and operated by PHA in accordance "`th the Citizens Systems and Equipment Manual described in Section 5(C), Construction Project Management. Citizens shall provide PHA a written Site Visit Report. Citizens will be available on a tirne and expenses basis,at a rates set forty in Appendix E-1c"Contract Costs and Annual Services",for additional visits and for on-going mair tenance assistan e. Citizens shall provide on-going assistance in the form of brief consultation by phone to PH or its assigns t no additional charge. F. Anfrual Service Contracts: �4 i Citizens shall assist PHA in obtaining such annual service contracts for the operation and maintenance of the EC1�1s as PHA may request. The cost associated with such contracts shall be paid from savings a der this Agreer nt only if they are expressly included in Appendix D, attached. Any such contract shall be exec ted and paid directly by P.HA unless Appendix D is amended for such purpose during the Contract Term. G. Re'ident Edncation and Trainine: I Citizens shall,on a semi-annual basis, schedule one on-site educational seminar for the residents t inform resident$ about the ECMs installed under the Conservation Program, describe current energy use and savi igs, and offer id as on how residents can reduce energy waste. Citizens, in conducting such seminars and worksh s, shall follow 11 manufacturer-reconunended procedures without thereby endorsing or guaranteeing such pr edures. Citizens shall be available on a time and expenses basis,at the rates set forth in Appendix E-lc "Contract ost and Annual Services"to provide additional seminars and training workshops, 1 H. M'intenance Staff Training: i { Citizens shall schedule and hold an educational session or training workshop on an annual basis,a needed, for the management and/or maintenance staff at the Developments, and distribute updated manuals a;Pd other materials as may be available from manufacturers. Citizens, in conducting such seminars and worksht Ips, shall follow li manufacturer-recommended procedures without thereby endorsing or guaranteeing such procedures. Citizenshall be available on a time and expenses basis for additional services at the rates set forth in Appendix E- 1 c.Enegy Service Fees and Expenses to provide additional seminars and/or training workshops as requestd by the PHA. j Energy/ ervices Agreement " 19 1'Rt?P fFT�4RY ,4prf12 , 2003 i �I li f i (7) j ENERGY SAVINGS DURING PHASE TTI A. Calculation of Savings: I For the purposes of this Agreement,Energy Savings during the Project Operation Phase shall be calculated using tie formulae and assumptions contained in the Utility/Energy Supplier Savings Calculations included in Appendix G. i B. PH-SSupplied Do 4Me ts: s PHA shall furnish Citizens each month with copies in electronic Excel spread-sheet or equivalent f jrmat of utility ljills for Developments and utilities included the Utility Baselines contained in Appendix -1 and Utility/�nergy Supplier Savings Calculations contained in Appendix G, within ten(10) days of receiptfrom utility companies.Any utility bills that require further data manipulation by PHA must be sent to Citizens within thtuty(30) days of receipt by PHA. PHA shall supply completed copies of HUD forms 52722 and 52723 relate to the Conservation Program to Citizens. PHA agrees to provide Citizens with any portions of the income and jrxpense statements concerning the operations of the Developments that are necessary for Citizens to perform the ervices specified in this Agreement. PHA also agrees to provide information regarding modernization plans or changes that will impact energy use pursuant to Section (8)F "Disclaimer Regarding Material Changes" and Section (8)0. Adjustments on Account of Material Changes. ($} CASH FLOW ii As illustrated in the "Cash Flow Projection" and "Revised Cash Flow Projection" included in Appendix D,the c sh flow for the Conservation Project shall be defined as follows: i3 A. Pra.ecu rating Budget: 3 ICitizens shall, in consultation with, and approval by the PHA, define the projected annual proje t budget for the ayment of the Performance Contract Financing and related Programs expenses. Citizens shall re iew and adjust tie budget annually for the terns of the Performance Contract Financing in conjunction with th Annual Reconciliation described in Section(6)B Annual Reconciliation,above. 1 i B. PITA Debt Service and PHA Utility Pa)nents: PHA shall be responsible for, and shall pay directly: (i) all Municipal Lease installments an 'or Debt Service costs under the Performance Contract Financing to the third party lender and(ii)all applicable util` bills to utility companies for each Development. i C. Fide_ d Annual Services Fee Pa ents to Citizens: In consideration of the annual services provided by Citizens during Phase Iii for which n specific compensation is provided by Construction Financing and Supplemental Construction Funding, PHA sh ;ll pay to Citizens a Fixed Annual Service Fee in the amounts contained in Appendix E-lb, D. Performance Contract Financing Muni ci at Lease Pa ents and/or Debt Service and Fixed Annual rvice Fee Co,-vera e: i l As set forth in the "Cash Flow Projection" and "Revised Cash Flow Projection" included in A 'endix D, the Parties project that the "Revised Energy Savings", will be sufficient to pay the Performance Contract inancing debt seu!vice during each year of loan repayment. In the event that the actual cash flow from actual Ener +Savings I Energy lVervicesAgreement �( 20 P OPR�ETARY j April28�200 i :t i �i t� F is insuffeient to repay the Performance Contract Financing, PHA shall apply to Citizens for any funds as ry then be pays le from Citizens to PITA in accordance with the Conditional Energy Savings Guarantee agreementtntered into by Vitizens and PHA pursuant to Section(9)Conditional Energy Saving Guarantee,below.The fundin for the Municipal Lease and the Fixed Annual Services Fee Payments to Citizens will be provided to PITA by UD as provide for in Appendix L,the"HUD Approval Letter." E. Did claimer Reaardine Material Changes: 1 Citizens has made, and will make, its final projections of "Energy Savings", and "Revised Energy Savings', in good faith based upon the condition of the Developments at the time of the final Energy Servi s Plan, and based upon information supplied to Citizens by PHA. A reduction in actual Energy Savings from tl e levels projecte may be caused by factors outside the control of Citizens. Those factors include, without 1 mit, (i) material y inaccurate information(the inaccuracy of which Citizens is not responsible for),(ii)Material Ch inges in the con ition or use of the Developments or utility-using equipment at the Developments; (iii) any failure f PHA, tenants, or other third parties to follow recommended operational or maintenance practices or otherwise to meet obligations with respect to the operation or maintenance of the Developments; (iv) any Material Changs to, or removal of,ECMs which have not been approved by Citizens and any Material Changes resulting from dam ige to, or des ction of,ECMs which is not promptly remedied by Citizens. If a reduction in actual Energy Saving s occurs due to Lny such factors, and if the size of such reduction is at least equal in value to the "Material Change Thresho d" described in "DEFINITICINS, then a "Material Change" shall be deemed to have occurred. Citizens shall ha'e no liability or obligation to PHA for such reduction or otherwise on account of such Material hange. Any guaranty executed by Citizens under Section(9),Conditional Energy Savings Guarantee,or other pro ision of this Agreement, which is or may be to the contrary shall be deemed to be subject to the disclaimer in this ection. Notwithstanding the foregoing, a reduction in actual Energy Savings which is a direct result of a material f dlure by Citizens to perform its obligations under this Agreement shall not be deemed to have resulted from a Material Change.I F. Ad,lustments on Account of Material Chan es: t } If a Material Change within the meaning of Section(8)F "Disclaimer Regarding Material Chang-,s" shall occur and PIIA shall be aware of such Material Change,PHA shall provide sufficient notice to Citizens,pimrsuant to Section (10) Maintenance, Material Alterations and Security, to allow, in consultation with Citizens, ap' ropriate adjustments to the Utility/Energy Supplies Savings Calculation contained within Appendix G and, if appro riate, to the Bas line contained in Appendix D, to be made. Such adjustments shall recalculate Energy Savings a, if such Materia Change had not occurred. In the absence of such notice, Citizens and PHA shall consult and ke the appropriate adjustments to the Energy Savings Calculation upon learning of any unreported Materialf,Change. Without;limiting Section (8)F, Disclaimer Regarding Material Changes. Citizens shall not be responsibl§ for any such Material Change. F (9) CONDITIONAL ENERGY SAVINGS GUARANTEE At the time of the closing of the Municipal Lease, as described in Section (4) Phase I — DO ign and Construction Funding, Citizens shall provide a Conditional Energy Savings Guarantee with and for the so' benefit of, PHt in substantially the form of Appendix I hereto. This guarantee may be incorporated as an exhib it to the Municipal Lease. f f EnerVy ervkes Agreement 21 PROPRIETARY APrdl 281 2003 i { 1 " (10) MAINTENANCE,MATERIAL ALTERATION,AND SECURITY n nce and Costs:Maintenance A. Ma�nte a ,.,�. I � !Notwithstanding any provisions of this Agreement which pertain to Citizens' Services related to the operatign of installed EOMs, PHA shall, during the Project Operation Phase, maintain the energy-related wilding structurls, fixtures, and equipment in accordance with the Citizens' design specifications and manuf cturer's maintenance recommendations specified in the "Citizens System:and Equipment Manual". Inspections p 3 formed by Citizens, insurance providers, or assigns, pursuant to Section (6)E, Annual Site Visit, and Secon (9), Conditir nal Energy Savings Guarantee, and such ether inspections as may be conducted,will be utilized t inform the PHA and Citizens on any required maintenance action unperformed. Citizens is not responsible or liabl for any existing or latent condition of the Developments, whether visible or enclosed, including,but not limited to, existing or latenIi wiring, metering devices, structural, mechanical, distribution systems of all kinds, machinery, s tctural elements,piping,switches,valves or any other system components that are not installed under this Agreeme c PHA shall be responsible for all on-going costs associated with properly maintaining and sery cing the existing, equipment and systems at the Developments. PHA shall be responsible for performing p eventive maintenance as may be recommended or required by the respective manufacturers of new equipment or sy tems, as summat!ized in the "Citizens System and Equipment Manual." PHA's maintenance responsibilities shall co tinue to be the 6-TA's existing standards of maintenance to keep equipment in good working order, modified by the new equipm�nt training and manuals provided by Citizens. The PHA shall provide a level of effort and sufficient resoures to properly meet these responsibilities. Notwithstanding these PHA responsibilities, Citizens shill notify the PH of any unanticipated increases in electricity or fuel consumption greater than ten percent(10%)wi in thirty( 0) days of receipt of monthly utility consumption data from PHA. Upon notification of said una ticipated increase,PHA shall be responsible for investigating and remedying any routine maintenance problem with espect to any EC As. PHA shall be responsible to remedy all maintenance or other identified problems with equip ent that is not 4ecified by Citizens but which impacts the ECM operation or energy usage. In the event that P iA cannot remedy;a reported problem to its reasonable satisfaction within ten(10)business days, PHA is obliged to eport its efforts �o Citizens and the Parties will determine a reasonable timeframe to correct the problem and/ 'r request Citizen to take action at the hourly rates identified in Appendix E-1(c) to ensure that the equipment is p rforming sufficie fitly to produce the required savings hereunder B. A-11;brations&Equipment Replacements: IPHA shall notify Citizens prior to commencing any Material alteration to the structure,fixtures,e uipment, or use of any facility at the Developments. To the extent possible, any replacement equipment or fixture installed will be at least as energy-efficient as the equipment or fixtures present on the Acceptance Date. Should such alterati ns increase or decrease the actual energy savings achieved at the Development, Citizens shall det'irmine, in consilttion with PHA, an appropriate adjustment to the Utility/Energy Supplier Savings Calculations i 'chided in Appendix G and, if justified,to the Baseline included within Appendix D. i C. Seur j Citizens shall secure,and/or cause its Construction Subcontractors to secure,all materials and eq�ipment to be installed on the Developments during construction. Citizens and its Construction Subcontractors shall carry appropriate amounts of liability and property insurance as may be required to protect the materials and�quipment prior tb installation and acceptance by the PHA, consistent with the HUD General Conditions pe arcing to Construction Subcontracts (HUD Form 5370) or PHA's insurance requirements, whichever is more sari"gent. No such `terials and equipment will be stored on-site unless prior approval from PHA is obtained (whit approval shall n t be unreasonably withheld or delayed), and Citizens and/or its Subcontractors are able to ecure the locatio s designated for such storage. PHA will provide reasonably convenient areas within the Develo 'ments for Citizen and Construction Subcontractors to mobilize. Energy Services Agreentent 22 PROPRIETARY April 21,2003 i 1 ij D. Effct on Ener Sav1n�S: j Should Citizens document, in its annual or other site inspection, PHA's failure to operate, matain or secure to equipment properly,or.failure to inform Citizens of a Material Change to the Developments,as defined in Section(8)F,and should such failure or Material Change reduce the level of actual Energy Savings by the ,t aierial Change i amount set forth in Appendix G Utility/Energy Supplier Savings Calculations or more, Citize shall determiie, in consultation with PHA,an appropriate adjustment to the Utility/Energy Supplier Savings Cal lations include in Appendix G,and the Baseline contained within Appendix D, if appropriate,and shall work with;!PHA to cause a y such failure to be corrected and to improve actual Energy Savings to the extent possible. The erns of Section 8)F. Adjustments on Account of Material Changes shall apply to any such Material Change. Adj stments based t4on Material Changes may be made retroactively where appropriate. t (11) SUMMARY OF COMPENSATION A. ThJ Total Contract Costs durina Phases 1 and 11: Citizens shall produce for PHA for its approval in advance of the onset of services under this Agr ement a Schedule of Values itemizing all costs included in the Total Contract Cost. Such approval by the PHA slit t not be unreasoably withheld. PHA shall make progress payments to Citizens against percent of work compl to using proceed, from Construction Financing or Supplemental Construction Funding.Phases I and H will be billed monthly by Citizens on a percent complete basis. PHA will hold ten percent(10°la)Retainage and,consistent with he HUD General Conditions and Public Constract Code Section 9203, may reduce the amount withheld as meai ures are installed and accepted. Upon submission by PHA of a Delivery and Acceptance Certificate in substantially the form of Appendix F hereto with respect to each Development and commissioning of the ECMs installed hereun er,PHA shall mke a Final Payment,inclusive of any remaining Retainage held with respect to that Development( r submit a Requisition or otherwise arrange for payment to be made to Citizens from the Construction and/or Escro Funds) with respect to that Development. Payments shall be due within thirty(30) days of PHA approval of each invoice submitt d by Citizens. Final payment shall be due within 35 days of the recording of a notice of eompletio . D. The.fixed Annual Service Fee during Phase Iii: The Fixed Annual Service Fee due Citizens will be payable in total to Citizens for performing th4 services outline in Section 6 of this Agreement, consistent with the amount of such fee outlined in Appendix E-l(b). The total pa�-Ment to Citizens over the course of this Agreement, subject to written amendment by mutual a reement, shall ndt exceed the annual amounts identified in Appendix E-l(b)unless agreed by the Parties. Such ayments will be I-nvoiced periodically throughout the annual service period as Services are rendered, up to the to l annual servicese set forth in Appendix E-lb, and are expected to be paid from the additional operating subsid r received from H D in accordance with Appendix L. C. Pa'ments in the Event of Certain Earlv Terminations: �{ Should the Conservation Project be terminated for any reason during Phases 1 or 11, includin , without limitation, any failure to agree on revisions to the Conservation Project as described in Section(15)A,Tq' 'nation for Failure to Agree on Revisions (but not including Citizens' Material Default in its obligation to pe'orm in a timelynd satisfactory manner, as defined in Section 15.Termination for Material Default),PHA shall b, liable to Citizen for all expenses incurred to the point of termination in accordance with this Section). PHA's p' yment of the Fee to Citizens shall be limited to the hours Citizens has worked (including hours worked by C izens, its subcontractors and all those working on the Conservation Project on behalf of Citizens), as of the dat Citizens receive or issues written notice of termination, valued at Citizens'billing rates per employee set forth in .ppendix E-Ic orlat percentage of work completed as of the point of termination for applicable subcontracts,paym.4ts which Energy!.Services Agreeinent 23 PROP IETAR Y i April 2 , 2003 i ! j i II Shall no include claims for "lost" overhead and profit In addition, PHA shall compensate Citizensk i'or all Eeimbu sable Expenses reasonably incurred by Citizens(including hours worked by Citizens, its subcontract rs and all those)working on the Conservation Project on behalf of Citizens)on the Conservation Project as of that te. In the eveta�t of termination, PHA's total payment to Citizens shall nouexceed the amounts indicated in Appenj x E-1, as may i e revised by agreement of both parties. In addition,PHA shall hold Citizens,as prime contractor,harmless from and against all costs and liabilities incurred by Citizens as a result of the termination of all Cons6uction Subcontracts under this Early Termination provision. fl D. Feeifor Additional Services: 1 At any time during the term of this Agreement,PHA may request that Citizens perform services inaldition to those described herein. Any such additional services which Citizens agrees to perform, including any rrosts to redesign or re-bid portions of the Conservation Project at PHA's option or as may be required by applica�a e law, shall be evidenced by a written change order or addendum mutually agreed-upon by PHA and Citizens,and}A, all be paid for by PHA at Citizens' and/or its subcontractor's billing rates for each employee set forth in Appendi� E-Ic. PHA shi ill also pay Citizens for any reimbursable expenses incurred by Citizens in conjunction with such a44itional services; (12) i PHA PROPERTY AND ACCESS TO PROJECT RECORDS � I PHA shall not, by virtue of this Agreement or material or equipment installed under this Agt!!ement, acquire ny interest in any formulas,patterns,devices,copyrights,patents,or other intellectual or proprietary rights, ll or sir items of property which are or rimy be used in connection with the ECMs installed under this Agre went. Citizens shall maintain records under this Agreement on a generally recognized accounting ba is, and calculations shall be kept on file in legible form and retained for at least three years after closeout. 4 (13) INDEMNIFICATION AND LIMITATION OF LIABILITY t The Contractor shall defend, indemnify, save, and hold harmless the Authority and its offij rs and employees from any and all claims, costs and liability for any damages, sickness, death, or injury to persgs(s) or propert,, including without limitation all consequential damages, from any cause whatsoever arising dial ctly or indirectly from or connected with the operations or services of the Contractor or its agents,servants, empl`yees or sub-cof actors hereunder, save and except claims or litigation arising through the sole negligence or sol willful misconct of the Authority or its officers or employees. Contractor will reimburse the Authority Efor any expendi-ures, including reasonable attorney's fees, the Authority may make by reason of the matters tha are the subject of this indemnification, and if requested by the Authority will defend any claitras or litigation to wl ich this indemni!facation provision applies at the sole cost and expense of the Contractor. +Notwithstanding the foregoing, the Parties, their directors, officers, agents and employees steal not be r liable f'r any claims for incidental, indirect, consequential, or special damages, including, but not Ii 'ted to, damage for loss of anticipated profits,except as those profits are derived from payment or other compensation due to performance hereunder, loss of use of revenue, and losses by reason of cost of capital, connected with,resulting m fro ,o#arising out of this Agreement or any performance or lack of performance under this Agreement. Moreover, Citizen;shall not be liable for damages arising from any latent or existing condition in the Developments. i (14) OMPLIANCE WITH APPLICABLE LAW AND REGULATIONS, INCLUDING PHA POLICY COMPLIANCE Citizens shall comply with and obtain,at its expense, all licenses and permits required by Federal, tate and local las in connection with the installation of the ECMs. To the extent that Citizens agrees to perforin o'erations and/or maintenance of specified ECMs or other equipment, it shall comply with and obtain, at its ex use, all .Energy Services Agreement 24 PROPRXE'T'ARY April28�2003 i �l i licenses,and permits which may be required by Federal,state and local laws in connection with the operatio i and/or mainten ince of such specified EOMs. PHA will cooperate with Citizens' efforts to obtain the foregoing In the event th it Citizens cannot procure any such license or permit in light of a requirement that PHA is required o do so, PHA wi I procure the same. Citizens and its Subcontractors shalt comply with all applicable laws, codes, regulations, and or,lnances pertaini g to the Scope of Work performed hereunder,whether federal,state,or local in origin. Y Citizens shall comply, and shall require that all of its Construction Subcontractors comply, ith the applicat,'le provisions of HUD Norm 51915-A, "Contract Provisions Required by Federal Law or Owner ontract with the U.S.Department of Housing and Urban Development", including,but not limited to,the following.' A. lIII�Executive Order 11246 of September 24, 1965 entitled "Equal Employment Opportunity," as am nded by Executive Order 11375 of October 13, 1967 and as supplemented in Department of Labor regulations 41 CFR Chapter 160); B. Copeland "Anti-Kickback" Act(18 U.S.C. 874) as supplemented in Department of labor regula ions (29 CFR pair 3); i I C. i Davis-Bacon Act (40 U.S.C. 276a to a-7) as supplemented by Department of Labor regulations 29 CFR part 5); i D. Sections 103 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C,". 32 '330) as supplemented by Department of Labor regulations(29 CFR part 5);and E. All applicable standards, orders, or requirements of the Clean Air Act(42 U.S.C. Section 7602) (fo ` erly 42 U.S.C. 1857(h)), the Clean Water Act, as amended (33 U.S.C. 1368), Executive Order 1173 and all implementing regulations promulgated by the Environmental Protection Agency (40 CFR part 15 + and all mandatory standards and policies relating to energy efficiency that are contained in applic le state conservation codes (if any) issued in accordance with the Energy Policy and Conservation Act (P L. 94- 163),and any other applicable laws or amendments thereto, i i F. 'flit;Drug-Free Workplace Act. i i G. Valle Engineering clauses in HUD Form 51915-A. If. Citizens and all of its subcontractors and Construction Subcontractors shall be properly licensed to d !business in the State of California and shall maintain compliance with requirements pertaining to such license.j Citizens ani its Construction Subcontractors shall be responsible for payment of all required taxes and fees r , uired by St to and local law with respect to this Agreement. 1. Citizens and its Construction Subcontractors shall retain all required records for six(6)years folio the date of Expiration and all other pending matters are closed and shall provide access to PHA at no charge ring that pei od. (All applicable requirements for record keeping, record retention and access to records set rth in 24 CF part 85.36(i)(10)and(I I).) t J. Citizens and its design and construction subcontractors shall maintain,throughout the term of the ° Agreement,at no additional cost to PHA,the following insurance. (1) Commercial general liability insurance,including broad form property damage td contractual liability(or blanket contractual)coverage,with a minimum combined single mit of $1,000,000 per occurrence for bodily injury,sickness or disease,death,and property danmge Energy `ervicesAgreeinent 25 PROPRIETARY April2�, 2003 ' Ii i (including loss of use);and (2) Automobile liability insurance on all owned,non-owned,and hired vehicles used n the project,with a minimum combined single limit of$1,000,000 per occurrence for bodily in nary, sickness or disease,death,and property damage(including loss of use);and (3) Professional liability(or errors and omissions)insurance with minimum coverag 'i 1of $1,000,000($2,000,000 aggregate)and a maximum deductible of$50,000;and i (4) Workers compensation insurance pursuant to state law; (5) Any additional insurance,coverages,or endorsements required under HUD FormJ5370 (see attached copy). The carriers issuing the above insurance policies must have a Best's rating of A-V31 or better and z Ist be !authorized by the State of California to issue insurance policies in this state. The above policies m st provide that their coverage is primary and that any other insurance PHA may have is secondary. C tizens 1 must promptly provide to PHA,at PHA's option and subject to PHA's review and approval,endor ements or insurance certificates evidencing the above coverages and listing as additional insureds PHA ant HUD, their governing boards,officers,agents,and employees and requiring at least 30 days'written notic e to PHA of policy lapse,cancellation,or material change in coverage. Citizens is responsible for ensuring that all design and construction subcontractors used on the prej ct have the above insurance,and before allowing any subcontractor to work on the project,Citizens must p 7ovide to PHA,at PHA's option and subject to PHA's review and approval,endorsements or insurance ce tificates evidencing the above coverages and listing as additional insureds PHA and HUD,their governing I dards, officers,agents,and employees and requiring at least 30 days'written notice to PHA of policy lap p, cancellation,or material change in coverage. K. Citizens will provide to PHA as assurance of completion of the project separate performance and il ayrnent bonds for labor and materials to be supplied for the project,each in the sum of 100 percent of all subca tracts. ( { (15) i TR12MINATION AND MATERIAL DEFAULT A. Terinrination for Failure to Agree on Revisions: From time to time during Phases 1 and 11 of the Conservation Project, including, without limitation, as providei I for in Section(4)Construction Financing and Supplemental Construction Funding and Section(5: Revised Scope f Work, above, Citizens and PHA are required by this Agreement to attempt to agree on revisits to the Conser ation Project. If the Parties concur at any such time in writing that they are unable to agree,this A Bement shall then terminate without fault on either Party in accordance with Section(I 1)C.Payments in the Event f Certain Early Terminations, above, and Citizens shall then stop work and proceed to minimize costs as if a iotice of termination for convenience had been received by it pursuant to Section(I 5)C,below. Should the parties fail to agree on revisions to the scope of the Conservation Project in instances 'ether than those described in the proceeding paragraph, the Parties shall mutually select a third party mediator who sail, upon selectioi by the Parties, review the revisions in controversy and make a non-binding recommendation wi iin thirty (30)days on the configuration of an appropriate cost-effective Conservation Project. Cost-effective shall Clean that the cost to acquire and maintain the ECMs installed shall be supported by expected Energy Savings and iticipated forms of Supplemental Constriction.Funding,but not from other funds required of,or from,the Parties. C 'f � E E'er gy1 ervlcesAgreeinent 26 P1tt7P ETAIZY Arr1l2$ 20 0 3 s I I I Upon receipt of a recommendation made by such a mediator, or in the event of a failure to aguai e upon mediati n, the Parties may decide to complete the Conservation Project as recommended or without the r visions that ca of be agreed to, as the case may be. If the Parties can not so agree,the Parties may then agree to trminate this Agreement without fault on either Party pursuant to Section (1 I)C, Payments in the Event of Certa"n Early Tcrminf tions, above, or in the event that the inability to agree is not deemed to be reasonable, one or bo of the Parties may exercise its rights under Section(IS)B."Termination for Material Default, below. In such Iatt r event, either P irty shall provide notice of Material Default to the other, and the requirement of a period to cure shall be deemed to have been waived with respect to each Party. t k i B. Te nation for Material Default: During the'Term, except as specifically set forth herein,either Party may terminate this Agreemeonly in the ever,t of a Material Default. A Material Default shall be defined as a material breach of this Agreement y either Party w Lich remains uncured for more than thirty (30) days after notice from the non-defaulting Pa to the defaulti g Party;provided,however,if such breach cannot be cured within thirty (30)days,a Material Def ult shall not exisi until the passage without cure of such longer period required to effect such cure as long as the d faulting Party commences a cure within the thirty (30)day period and thereafter proceeds diligently to complete such cure. In the erent of such breach, any amounts owed prior to such breach shall then be paid and the terrninat'ig Party may, at its option, submit any issues not so disposed of to mediation or may, without a waiver of other emedies which exist in law or equity, exercise any and all remedies available at law or in equity and other a1,�perfbrrn opriate proceed ngs including bringing an action or actions from time to time for recovery of amounts due and aid by defaulting Party, and/or for damages which shall include all costs and expenses incurred in exercise of itmedy; provide, however, no such rights, remedies, actions or damages shall be available to the terminating Pto the extent such would be inconsistent with the terms of this Agreement. Should PHA terminate the Conservation Project for Citizens'Material Default in its obligation t in a time ly and satisfactory manner, as defined in this Section (15)B. Termination for Material Default,lCitizens' liability to PHA shall not exceed the amount of the total fees payable to Citizens if Citizens had properly prformed its obligations hereunder. Fj ;1hich C. `Terhiination for Convenience: Notwithstanding the foregoing, this Agreement may be terminated by PHA for "convennee" in accordaiice with applicable HUD requirements and the requirements of this Agreement. Any such terminon shall be effe ted by the delivery to Citizens of a written notice of termination specifying the extent to the performince of the work under this Agreement is terminated,and the date upon which such terminationibecomes effective, Citizens shall comply with such notice and take action to terminate work as and to the extent s ;forth in such notice, including exercising its rights or otherwise taking action to terminate any Construction Sullcontracts which ray then be in effect and to minimize, to the extent possible, the costs incurred on account of sch latter termina ions. �ln the event of such notice by PHA, PHA shall be liable to Citizens for reasonable and pr l er costs resultin from such termination upon receipt by the PIIA of a properly presented claim setting out in etail the following elements(which shall be such"reasonable and proper casts"): (1)the total cost of the work per orrned to date(which shall be inclusive of compensation for all hours actually worked to date calculated at the billin rates set for in Appendix E-I Energy Service Fees and Expenses) less the total amount of Agreement payment'I made to Citizens; (2) the cost of settling and paying claims, which shall not include "lost" overhead and pro 't, under Constr4tion Subcontracts and material orders for work performed and materials and supplies deliver d to the Conservation Project sites, payment for which has not been made by the PITA to Citizens or by Citiz¢ s to the contractor or supplier; (3) the cost of preserving and protecting the work already performed until th4 PHA or assigned takes possession thereof or assumes responsibility therefore; and (4) the actual or estimated coi of legal EnerV Seryiees Agreement 27 PROPRIETARY ApiII28' 2003 E I i f� ii I ;i i II i I and accmunting services necessary to prepare and present the termination claim to the PHA. Any disputed!amounts later found to be due to Citizens through decision of a mutually agreed-upon mediator shall be paid wit4jn thirty (30)da ;s of such determination,with accrued interest from the original due date. In accordance with HUD requirements, PHA may prepay the Performance Contract Financing, without penalty,1 1 }i D. Partial Termination: During the Operational Phase, to the extent that any Event of Default by PHA(including but not f nited to failure by PHA to perform maintenance required to be performed by PHA hereunder), a fire, flood, exp vision, or other casualties, or destructive act or condemnation affecting only part of the Developments or ECMs re ` ers any significant part of the Developments or ECMs substantially unusable and, in the case of a casualty, th affected portion f the Developments or ECMs is not reconstructed or restored by P11A within one hundred and ty(150) days from the date of such casualty, either Party may terminate this Agreement with respect to such affect 'd ECMs by written notice to the other, in which case all obligations of Citizens with respect to the affected port �n of the Develorments shall cease and PHA shall pay to Citizens an amount equal to all amounts then due and owi , which payment shall not include "lost" overhead and profit, with respect to this Agreement. Upon the paym nt of all amountl provided for in this Section (15)D, all obligations of PHA under this Agreement with respe to such portions!of the affected Developments or ECMs shall cease with respect to the period following such payor nt. i 1 i E. Terilnination for Causes Beyond the Control of the Parties: In addition to the foregoing provisions of this Section(15),to the extent that any fire,flood,exa ion,other casualties, or destructive act or condemnation affecting the Developments or ECMs renders the Develo Ments or ECMs substantially unusable and, in the case of a casualty, the Developments or ECMs are not recons -ucted or restoredi by PHA within one hunched and fifty(ISO)days from the date of such casualty, either Party may erminate this Ag Bement and the Guarantee by a written notice to the other, in which case PHA, in addition tol the other amount4 provided for in Section (I S)C, will pay to Citizens the reasonable percentage of completion'payment, which payment shall not include "lost" overhead and profit, applicable through the point of such termr�ation, as approved by the PHA. Such payment amount shall be calculated against the percentage of completion of the Work and Cost identified in Appendix B as of the date of termination. Upon such payment,pursuant to this Section(15)E and suet other payments which may be required by this Section 05M all payment obligations of )' IA (and Citizens,if any)with respect to the period following such payment shall cease. (16) SUCCESSORS AND ASSIGNS ;Wherever the words PHA or Citizens are used herein, they shall include their several successor'1 grantees and assigns subject to the limitations of law and of this instrument. Nothing in this Agreement is intender nor shall anything in this Agreement be deemed to create, any rights on behalf of any person or persons not a party hereto, including, without limitation, any tenant,or energy supplier, or Construction Subcontractor, with the excp�tion that Citizen rights to receive payment for its services hereunder may be assigned to a lender or financial`institution without further consent of the PHA. Notwithstanding the foregoing, this Agreement may be asci tied to or assume:by any affiliated company of Citizens,including,but not limited to,its parent,Ameresco,Inc., Y issuance of a ten!(IO) day written notice and PHA's written acknowledgment of receipt of such notice within a ye (5) day period hereafter. i f Entergy Services Agreensent 28 PROPRIETARY April 28j 2003 i i i i I i # (17) CALIFORNIA LAW } this Agreement shall be governed by and construed in accordance with the laws and venue of the` tate of Calif*ia(excluding the choice of law rules thereof). i (18) ENTIRE AGREEMENT; AMENDMENTS s I This Agreement, including its appendices, sets forth the entire agreement, and supersedes any and' 11 prior agreem4nts of the Parties with respect to the subject matters hereof. No change,amendment or modificatia of any n provisioof this Agreement shall be valid unless set forth in a written amendment to this Agreement signed by both Parties. In the event of any ambiguity or conflict in meaning, the terms of this Agreement shall not be c nstrued against {he drafting Party based upon that Party's having drafted this Agreement. i (19) NUN-WAIVER the failure of either Party to insist upon or enforce strict performance by the other Party of any pro' ision of this Agreement or to exercise any right under this Agreement shall not be construed as a waiver or relinquis nent to any extnt of such Party's right to assert or rely upon any such provision or right in that or any other instan ;rather, the sam shall be and remain in full force and effect. (20) NO PARTNERSHIP OR THIRD PARTY OBLIGATIONS I ' his Agreement shall not be interpreted or construed to create an association,joint venture or pa tuership betweelil the Parties or to impose any partnership obligations or liability upon either Party or to create any Hghts or obligations in or with respect to any party or entity which is not a Party to this Agreement. Neither Party shall have any rig l t,power or authority to enter into any agreement or undertaking for or on behalf of, to act as or be an agent or reprep entative of,or to otherwise bind the other Party. here are no third party beneficiaries of this Agreement. i E (21) INVALIDITY j I 'the invalidity or unenforceability of any provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or enforceable provisi6ns were ornitted.! (22) NOTICES j All notices required pursuant to the terms of this Agreement shall be in writing and shall be elivered personally, by overnight courier or by such other means (including facsimile transmission or email with confirmation)evidencing delivery,or by certified or registered mail, 1i Each party shall deliver all notices to the other party to the following addresses: t: i Energy Services Agreement 29 PROPRIETARY April 28, 2403 f i i { i l I is I I Citizens: 'i Janice DeBarros EUA Citizens Conservation Services,Inc. Ci c/o Ameresco,Inc. Suite 410, 111 Speen St. Framingham,MA 41701 i With a copy forwarded to the attention of PHA: j Housing Authority of the County of Contra Costa Attn:Rudy T'amayo 3133 Estudillo Street Martinez,CA 44553 Phone: 925-457-8000 Ext. 8014 Fax: 425-372-3678 j Notices will be deemed given and received: }� (a) when delivered, if delivered personally; 1 I (b) the next business day after delivery to the courier, if given by ovemigilt courier; or j (c) five calendar days from the date of mailing, if given by registered otcertified mail;or I I (d) when receipt is confirmed by the sending party if by facsimile or e-mai ;' provided that the sending party follows up with an original by;nail. i i i (23) FORCE.MAJ'EURE: !' I If Citizens is unable to perforin due to causes beyond the control and without the fault or negligeice of Citizens including, but not limited to, acts of God or the public enemy, acts of the Gov Tnrient in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strik q, freight embargoes and usually server weather, upon request of Citizens, PITA will ascertain the facts and ext t of the failure to perform. If PHA reasonably determines that any failure to perform results from one or more of e causes above, the time for Citizens' perfam-iance shall be revised,subject to the rights of PHA to terminate this Agreement for convenience and provided Citizens used its best efforts,consistent with prudent business practices,to perform its obligations under this Agreement and to mitigate the losses to PHA arising from the event of Force Majeu:' If PHA is unable to perform(except for FHA's failure to fund its obligations under this Agreerne�t)due to causes beyond the control and without the fault or negligence of PHA including, but not limited to, acts cif God or the pulllic enemy, acts of the Government in either its sovereign, or contractual capacity, fires, floods, epidemic, quarantine restrictions, strikes freight embargoes and unusually severe weather,upon request of PHA, Citizens will ascertain the facts and extent of the failure to perform. If Citizens reasonably determines that any failure to perform results frond one or more of the causes above, the time for PHA's performance shall be extended, provided PHA Energi.,Services Agreement 34 April 24,2003 I' i used its i`hest efforts, consistent with prudent business practices, to perform its obligations under this Agreement and to mitiglate the losses to Citizens arising from the event of Force Majeure. I '1 (24) PROMOTIONAL LITERATURE,PRESS AND MEDIA.- All EDIA:All contacts and arrangements with the press and the media, including but not limited to, nev!spapers, magazilies, radio and television stations, in reporting about or covering the Services provided hereunder�ishall be made through FHA's Executive Offices. Citizens shall have the right to review and approve in advance apy of the above it�which Citizens'name is used. i Citizens agrees that the terms " Contra Costa Housing Authority", "PHA" "The Housing Author't y of the County of Contra Costa"or any derivation thereof may not be utilized in any promotional literature,adveIsements or PHA lists without the express prior written consent of PHA. Citizens further agrees that it will not de rtbe the Service to PHA in any proposals to potential customers of Citizens or promotional literature or adve Isements without;the express consent of PHA. �!. f� Neither Citizens nor PHA endorses products or services. Therefore,each Party agrees that it will 4ot use or imply t e other's name, or use the other's reports, for advertising, promotional purposes, raising o capital, recomm ending investments,or any way that implies endorsement by the other. Citizens does not undertake projects for the purpose of litigation or to assign fault or blame ani does not provideiexpert witness services. Therefore, PHA agrees not to use any project results in any dispute, litigation, or other le'9 al action, except defensively in disputes, litigation, or other legal action to pending or contemplated at the time of execution of this Agreement. The foregoing sentence shall not apply to disputes between PHA anal`Citizens or between PHA and any Subcontractors tinder the temts and conditions of the Agreement. j; (25) INCORPORATION: i i This Agreement incorporates all the Exhibits and Attachments referenced or recited in this Agreement. (26) HEADINGS: 1 The descriptive headings used in this Agreement are for purposes of convenience only and do lot constitute a part of this Agreement. i (27) REPRESENTATIONS AND'WARRANTIES: Each party warrants and represents to the other that: I. (A) It has all requisite power, authority, licenses, permits, and franchises, cv�porate or otherwise,to execute and deliver this Agreement and perform its obligations hereunder; i t (B) Its execution,delivery, and performance of this Agreement have been duly auttprized by, or are in accordance with, as to Citizens, its organic instruments and, as to PITA,by all requisite munici,�I,agency or other action and are not in breach of any applicable law, code or regulation; this Agreement has}been duly execttt�d and delivered by the signatories so authorized, and constitutes each Party's legal, valid a f binding obligation; Euergj#,Services Agreement 31 PROMETAtI'Y April A, 2003 i I e Iii it I 1 (C) Its execution, delivery, and performance of this Agreement shall not result in a b each or violatio of,or constitute a default under, any agreement, lease or instrument to which it is a party or by wl ich it or its properties may be bound or affected;and (l ) It has not received any notice, nor to the best of its knowledge is there pe ding or threatened any notice of any violation of any applicable laws, ordinances, regulations, rules, decrees, awards, P etnvts'c�r orders which would materially adversely affect its ability to perform hereunder. I 3 (E) The persons executing this Agreement are fully authorized by law to do so. (F) In addition, PHA warrants and represents to Citizens that PHA has obtained or shall obtain all necessary governmental, legal, administrative and any other approvals necessary for it to enter into this Agreement. E (28) ADDITIONAL REPRESENTATIONS AND WARRANTIES OF PHA 0 IPHA hereby warrants and represents to Citizens that: (A) PHA presently intends to continue to use the Developments in a manner reasona�ly similar to its present use; (B) PHA does not presently contemplate any changes to the electrical and! thermal consumption characteristics of the Developments as these existed during the base period except as may have been disclos6d to Citizens by PHA in writing prior to the execution of this Agreement; (C) PHA has provided Citizens with all records heretofore requested by Citize and,in that regard,Citizens acknowledges that it has received Base Period data from PHA which appears to be complete as of the date of this Agreement, and that the information set forth therein is, and all information in other records to be subsequently provided pursuant to this Agreement shall be, true and accurate in alt`material respectl except as may be disclosed by PHA in writing; (D) PHA has not entered into any contracts or agreements for the Developments wit r persons or entities other than Citizens regarding the provision of the energy services referenced herein. (29) 1 ADDITIONAL DEVELOPMENTS j i Citizens and PHA may agree that Citizens shall install additional ECMs at a Development inddition to those listed on Appendix A (each "Additional Development'), through amendments to this Agreemen �mutually acceptable to both parties, or by entering into separate agreement between the Parties, which agreements shall includeimutually agreeable terms and conditions. is (30) HIERARCHY OF PROVISIONS Except as otherwise provided in this Section 30, in the event of any inconsistency or conflict bitween any term, condition or provision of this written Agreement (inclusive of Sections I through 30 thereo6 and any Appendix or Attachment hereto shall be resolved by giving precedence in the fallowing order: (i) this Agreement, (ii) the'Appendices and (iii) the Attachments. In that regard, the document having the higher preferen a shall be control i ng and the inconsistent or conflicting term, condition or provision in the document having the subordinate preferece shall be deemed modified, superseded or replaced, as appropriate, by the provisions of the document having the higher preference. i Errergy Services Agreerrsent 32 PROPRgTARY April 29,2003 i j u ! 9 I i I I j I i Executed as of the day and year first written above. The individuals executing this Performance Ag eement represer 4 that they have full authority to do so. t E11A CI, IZENS CONSERVATION SERVICES,INC. By By: Name - — — Name: - - - Title Title: Date: Date. HOUS : G AUTHORITY OF THE COUNTY of CONTRA COSTA j I By: _ _ By: Name: Robert McEwan Name: Title Title: Date_ —..—..4_.____._ Date• j Approv d as to form: t 1 � SilvanoMarchesi I' County Founsel By:- -T y:— _ _ r David 1.Schmidt Deputy Founty Counsel i� (Add Notary Acknowledgement) { f i The following Appendices and Attachments are attached hereto and incorporated in the Agreement to he extern provided therein. i i Energy ervicesAgreernent 33 1'1"OPt C.E AR Y f April 24, 2003 1 � 1.. i i 1 Appendices I i A. DEVELOPMENTS B. I SCOPE OF WORK/RECOMMENDED ECM LIST (SUMMARY OF RECOMMENDATIONS) C. MUNICIPAL LEASE AND OPTION AGREEMENT � D 1 CASH FLOW PROJECTION(INCLUDING BASELINE) I?-I a,b,and c CONTRACT COST,ANNUAL SERVICES,and HOURLY RATES i i E 2 CHANGE ORDER FORM I� F. DELIVERY AND ACCEPTANCE CERTIFICATE I 0. 1 UTILITY/ENERGY SUPPLIER SAVINGS CALCULATIONS 1 STANDARDS OF COMPORT AND SERVICE I. ) GUARANTEE J. NOTICE TO PROCEED i K. ? SAMPLE INSTALLATION APPROVAL CERTIFICATE i L. 1 HUD APPROVAL LETTER ' M. PROJECT MILESTONES I i' i I I I i Energy�ervices Agreensent 34 P'R0iiiET,4RF April 28,12003 i i i a � a ' I Dated]i _ FIACCC EUA Citizens---- 1 i (� APPENDIX A DEVELOPMENTS '1.1re .1 owing buildings, facilities, and areas (the"Developrnezits"), which are owned and opera by HACCC, are included in the Scope of Work/Sumxnary of Recommended ECMdetailed in Appendix 13: DEW OPMENT ID# STREET ADDRESS #AP1`S. Alham' ra Terrace CA 11-01 3133 Estudillo Street, Martinez 52 Bridget ont CA 11-3 801 J Street, Antioch 36 Los Nc� ales CA 11-4 Orchard Drive, Brentwood 44 EI Pu i to CA 11-5 875 El Pueblo Avenue, Pittsburg 176 Las 6 tas CA 11-6 1601 North Jade Street, Richniund 76 Las kr oles CA 11-8 990A Rosemary Lane, Oakley 30 Las Itas CA 11-9A 1601 Nortli.lade Street, Richmond Ott Las b; Itas CA 11-98 1601 North Jade Street, Richmond 60 Bayo :' ista CA 11-10 2 California Street, Rodeo 250 HacW da CA 11-11 1111 Ferre Street, Martinez 50 Casd a Manana CA 11-12 Rosemary Lane, Oakley 40 Casa a Serena CA 11-13 1015 Clearland Drive, W. Pittsburg 50 Eldel Inds CA 11-15 2100 Buchanan Road, Antioch. '100 Carn1' del Vista CA 11-16 2329 College Lane, Saar Pablo 1010 I(I ddj anor CA 11-17 100 Austin Court,Saar Pablo 41 { , a ! I i i ! I i? APPENDIX B-Scope of�t k ,� 6-Dec-az HOUSING AUTHORITY h,irT11R COUNTY OF CONTRA COSTA is 11OUS1NG AUTHORITY OF Tilt COUN1'Y OF CONTRA COSTA i! I S'umniaij,of Eiter'gy C nsert+alion Measures �; 5avinga Sum Rea (therms) (kWh) (refs) Sum Rec DEVEI.OPMEN'T Site N; MEASURES MT.DOLLAf2COST Gas x1ecoic Water SAVINGS Pa bgek TOTAL S#632 9dS - # 43,95726,8132 S1U7t2dd 7.9 W/INCENTIVESWaierCfasw S#48 4(15 7.2 Afkeanhrs 7isngoe CA,3 ai InsWII„ory Volume Water Closet/ 34,(05 I,48U 53225 7.5 Install Energy Elletarrt Its53gamots $20,793 18,237 S2 097 9.9 Install Common Arca Energy ESicinnt Lighting 511,139 27,038 $2,880 3.9 Install Enorg Efficient f fighting in Apuunentt 51 6,032 25,750 $2.363 6.8 Convect Ownotshlp of Elacutepl Distributive to PG&E $58,733 13,71)7 $1,576 37.3 i! Oocnpe.y Sanson in Adm1n Building OlBees $1,520 3,415 $376 4.0 i I S�JB'Tt)'TAI,��. - - !32,340 iI Bridgeman CA 11-i Fmitalf Energy Efficient Rafrigcratars w 516,354 34,390 11,643 9.9 j losWi F.nerg L6idont I,ISW"g in Aputmcn" 512,795 14.203 ti,362 8.2 11.0 0.0 0.0 6a 00 00 00 28,535- - - -- 33,216 9.1 Los t4pgafet Cf'3 t-4 fostatf I.aw Volume Water Ciogms 527,195 2,4% $7,237 3-8 ` lmpmva Inigadon E.filelenayttask 1Sesec6on $17,952 - 4,093 t3,539 3.2 £"sial Enatgy llaclent PtHsastors $38,345 - £4,476 - St,663 II(I Install Common Ams Energy E6geteat Ughtlag $899 - f tr96 - $121 7.4 Install EnatgEfficient UghiingInApartments $33,492 - 15,/99 - $1,672 8.1 ab 0.0 un oa 0.0 TUBI`OTA#. S7?,872 .30,771 6,586 � St 6,133 �fi.8 El P.W. CA 11.5 hes"Energy Erwant Rolligermon $59,20186,33153,054 htsWl Common Area Enotgy EfRnlent Lighting $4,443 8,145 - 5896 4,q htstnfl Eoorg E8lciem Lighting In Aparenenta 555,665 53,281 $5.590 ia.0 CanvprS Ownocship of 0eeaicat Distsibudw to I'C3&E 94,325 48,855 $5,6f 6 16.8 0.6 00 Ob 0 t3 00 4tTI3TE3TA1, 52.13,600 - t63,33R � - 518,43E Ff.6� i Las a}fes .A-II-6 Inateil I.ow Voitpaa W-uorC3aaeta SI2,480 58(! $1,033 1I.6 1..odf Energy Efedo"t Rafftgordors Si5,263 30,384 51,211 1113 InaWlCommon AmaL'-2yEfiipismUghting $4,321 (£1,939 S3,203 3.6 Install Enargffi Edem Ughting to Ap n mems 537.742 53,283 55,861 6 4 b tS s 00 !' 6.6 ba y1 0.0 '( SUBTOTAL 74.806 986 S9,314 7.5 iI i fns Actraios CA 11-8 WWI Energy Efficient Rafr3geratosa 510,636 7,293 3838 12,0 Improve Irrigation EffictencytLeak Mitedon 532.240 3,48£} 533,596 6.9 ImWi Gammon Area E w wgy Weiewt Usbting $2,365 3.724 8366 6.5 3nswil Enarg Efficient lighting In Aparomentg $14,822 18,816 52.070 7.2 a Si aU U.0 a.0 all _ {J 9I1MOT I,•-� 539,463 - 25,424 S,48U u-816,863 1..3 --. AppendixAppendixBMnaama 5tnmmary 3A 127912002 HOUSING AUTHORITY OF THE COUNTY OF CONTRA COSTA $243rtmary ufEytergy Conservation Measure3 j Savings Stun I2ac (tlterina) {i(Vllt) (atfb) fiarn net Ui$Y LOP3lX NT Sftafl dMUSUAS,S LB2.DOLLAAtosy Gar E£ettric Walter SAVTPIGB Pa £rack Las Mitts CA't{-9A tostat£Lew Vnlaatw Wamr f:*$W 15,070 1,215 $2.962 7,4 I t inataP Energy Efficient RnfHgttntan $32,471 IB,bF! 32,{40 15,2 lostall Enarg Efficient 1,186dng in Apantnatts $44,196 58,964 Xb,d29 6.9 d,tr u4 4.4 1 fro 0.0 3UBrf3TAL _ 392;$38 76,015 _ 1,11.4 $10,721-9 1 1 Les L3ai+.as CA,I'-go Mow)Law Voinme Water Closets SWAM 832 + ${1481 7.3 Insall Porgy Efi{c£ent R.Pfgo mots 324Ai7 10,936 $1,293 16.2 i Instil£Pnnrg irPffetant Lighting in Apmunaus E33,r44 46,489 $5,114 6.6 i 0d U.0 00 j U.0 j 4.0 Do all 11101 AL $64,978 57,$25 332 $7,952 8.3 Bayo Visa _C-10 Install Low Volamo Ws or0mots 59,419 3,627 5f4,It16 9.6 lnaatl Energy EtBatant Rnftfgetalars 5149,313 88,948 110,229 10.3 i iastall Centrnan Ataa Ettntgy 6{tlntatn Lt3bttng 511.740 19,914 $1,191 S.4 j Install I"Efficient Ujili gIn Aparemoa 5125,718 139.821 515,384 9.2 l Convert ow,,oniup of Etcan£cat viets£bution to PG&E 197,278 76,46n $8,793 11.1 1 if,() 0 fi SUSrt3TAL $436,419 315,143 5,627 $46,649 9.4 fi diadnnda C'A',I.1-11 ["fail Lour Volume Warr Cleats X22,154 844 53,799 5,8 itmWi gnaw offiviam Rafr{garstom $23.413 - 20,100 52,312 111.1 Insall Common Arca 8notgy Pfficlain Meeting $3,984 7.493 5624 9.6 s InsWi E..rg liftiniont Lighting In Apartrimxv 513,873 17,978 51,164. 11.9 0.0 %t of) fid u.d �y Oil �1 SUB'COTAi, $65,416 41,572 344 $7,899 8.3 Caen A4ttnasa Cit lnstdiEnugyB cicetttafrigoratnts XI6,E1i . 13.0'14 $1,733 9.7 f lneodl Common A .Paetgy Efficient i3xhting X899 3,941 5434 2.0 t instal#Engrg Efficient Ligbdng In Apartments $15,526 81861 $973 17.0 0.0 0d ftti U fl 0.0 00 j - 11.0 { SUNTOTAi_-.._...._...._.._..._. 334,[9521,816 - $3,142 10.9 ..0 Case Ire$crena ? A 1143 IS 4 Energy Efficient Re gtwor, 11.814 16.933 59,948 11.7 {nsail Common Am.Energy EINcloot Lightlog X5.984 1.79% x198 30.3 lnsisl£Encrg Pi ictent Lighting in Apartments X22.939 23 6%6 $2,621 K y 0A s 0{) 0b tt. U It r do 0,11 ! SU8T0 f AX _ $51,757 42,610 - $4,773 10,E I I Elder Winds A 11-19 hWW Energy BffirAont P waren X38,236 76,470 58,794 -- -€6 --- Insall Common Axa Pearly P93n1ant Ligbdng $3,718 28,464 $3,131 i.2 laaWI fining Mc{ent Lig{tdng In Apatttaetns $48,395 31,914 $3,511 - 13,8 j InsWl fiff£olont Apertmeat Air Coodidaners 577,500 !33,412 $t3,29B 4.7 i' 0t1 tr,tl 0.0 114 u.4 SUBTOTAL $132,849 169,870 - $34,733 5.9--� 1 1210120022 Appendix SMonsure Summary 3A j� HOUSING AUTHORITY OF THE COUNTY OF CONTRA COSTA .Voynniary of Energy Conservadon A4rivares Savings 6uea$tea (therms) ((t v) (cots) Sam Ree DEVELOE&EKINT Site#`: MUSLIM M.DOLLAR COST Gas .xleetric water SAVINGS Ya rbetk Camino dot Vista CAY?16 Insult Late Volume Water Cleats 549.446 3,938 S7,ai8 7,1 bta dt Energy Efficient Ratiiterators $58,236 76,470 58,794 6.6 Instal}Common Area Energy Efficient Ltgbting 57,'317 5,640 $620 52.1 Iostolt£tract Ef idem Lighting in Apanmemu $6,296 1,999 t176 35.E 0D j a.0 SI1B'F07'AL 5121,495 - 83.709 3,938 316,6131 7.3 t Kidd Manor CA l•t7 Install Energy Bfrwicrct Refdgamtoo w (6,911 15,014 —'51,733 97 l stall Common Area Enargy,£1lieient Lighting $3,003 5,494 $603 5,0 ok,steli F-rit£fRdent Lightbtg in Apartments $458 213 $23 19,6 08 I,tt � ti i1 tin I� �1 i; I i i � 4 1 Ij i I' I P' s i+ i I } #i 3 Appendix EfwiaaIM6 Svnunary 3A 121912002 I is APPENDIX C MUNICIPAL I.LkSE AND 0PTIQN AGREEMENT is DACE: LI;SSC)ft: I LESSEE: fill sing Authority of the County of Contra Costa This Msniici' 1 Lease acid Option Agreement(Hie"Agreement")entered into between("Lessor"),and Housing Authority of the County of Contra Costa("Lessee"),a pub is body corporate and politic duly orgartrxed and existing under the laws of the Calit"orria("State"); WITNESSETIL WHEREAS] Lessor desires to lease the Equiprnetit, as hereinafter defined, to Lessee, acid Lessee desires to lease tike Equipment from Lessor, subject to tine terms anq conditions of and for the purposes set forth in this Agreement;and WBEREAS']Lessee is authorized under the Constitution and laws of the State to eater into this Agreement for tl)e purposes set forth herein: NOW,'fflE Ft}RF,for acid in consideration of the promises and covenants hereinafter contained,the parties hereby agree as follows: ARTICLE,I COVENANT'S OF LESSEE Section I.oi�Covenants of LesseeLessee represents,covenants and warrants,for the benefit of Lessor and its assignees,as follows: (a) L` see is a public body corporate and politic,duly organized acrd existing undei the Constitution mitt tine laws of the State. (b) see extent permitted by law,Lessee will do or cause to be done all things necessary to preserve and keep in full force and effect its existence as a public 6dy corporate and politic. (c) 1_r ssee is authorized under the Constitution and laws of the State to enter into this Agmerient and tiie transaction contemplated hereby and to perform all of it obligations hereunder. (d) L it has beet)duly authorized to execute acid deliver this Agreement under the tents and provisions of tine resolution of its members, attached Hereto as Eb't or by outer appropriate official approval,and further represents,covenants,and warrants that all requirements have been)net and procedures have, ccured, in order to ensure the enforceability of this Agreement,and Lessee has complied with such public bidding requirements as may be applicable to, his Agreement and the acquisition by Lessee of the Equipment thereunder aid under the Energy Services Agreement.Lessee shall cause to be executed Oi'opinion of its counsel substantially in the fora)attached fle-to a B&_:WW. (e) ring the tern of this Agreement,the Equipment,as outlined in E lbit C attached hereto,will be used by Lessee only for the purpose cif'performing one ortore governmental of proprietary functions of Lessee consistent with the permissible scope of Lessee's authority and will not be used its a trade or business)i f any person or entity other than Lessee. (t) wring the period this Agreement is in force,Lessee will annually provide Lessor with die most recently available finatieial statements'-", budgets,and such othl r financial information relating to the ability of Lessee to perforin under this Agreement as may be reasonably requested by Lessor or its assignee. !! (g) '111he Equipment will have a useful life in the hands of Lessee that is substantially in excess of the Lease Term. ARTICLE II DEFINITIONS i Sectio)) 25,1_ Definitious. Unless the context clearly otherwise requires or unless otherwise defined herein, the capitalized terms in this Agreement shall have the respective meanings specified below. "Acceptai ce Certificate" means a certificate in substatrtially the Ibrm attached hereto as Exhibit E and which shall be delivered by Lessee to Lessor upon receipt qnd acceptance of the Equipment. "Agreetn�nt" moans this municipal Lease and Option Agreement with its Eifhibits„ which Exhibits are attached hereto acid incorporated herein by this reference. �j }t "Code"rr.earns the Internal Revenue Code of 1986,as amended,acid to the extent appticabie„the regulations said rulings issued thereunder."Corutne' cernent Date" is tine date when the terns of this Agreement begins and Lessee's obligation to pay refit accrues,which date shall be the Elate first at7(ii%e writ. r). "Energy ervices Agreement" means tine Energy Services Agreement trade and entered tura as of January 2,2001 by and between Lessee and Citizens Cotisesvatt n Services„Inc. E" quipuj nt"means the property described in EMIR"and which is tine subject of this Agieerment. �rnt"means the period beginning with the Commencement"Lease I t Date and continuing until teiminated as outlined in Section 4.01. "f'nrclrtt a Price" mealis the amount set forth and so titled in xh)lb1Ll hereto which Lessee may Tray to Lessor to purchase the Equipment as provided under See,ion 1 1.01. "Rental;ayments„'means tine basic rental payments payable by Lessee pursuant to 'x ' it Q of this Agreement. "rlersdor „ means the manufacturer of Hie Equipment as well as the agents of dealers of each manufacturer and Citizens Conservations Services pursuant to the Fn4,gy Services Agreement. SAMPLE LEASE`,GRETMENT-IIACCC Page I j� ARTICLE tit j LEASE OF EQUIPMENT i Section 3.0111 1 Lege of Cqulnnient. Lessor hereby demises, leases and lets to Lessee, and Lessee rents, leases mud mires from lessor, tine Equipment,in accoidasice with the provisions of this Agreement,to have and to hold for the Lease Tenn. { AR'T'ICLE IV LEASE TERM Section 4.01.; Lease Term. 'Ibis Agreement shall be in effect and shall coutmence as of the Convnencenient Date mid will remain in effect throughout the Lease f'sarm. The Lease Tenn will terminate upon the first to occur of (a)the exercise by Lessee of the option to purchase the Equipment under Article XI;(b)L'6ssot's election to terminate this Agreement upon a default under Article XIII;or(c)tiie payinent by Lessee of all sums required to be Paid by Lessee hereunder. i ARTICLE V ENJOYMENT UP EQUIPMENT Section 5.0�. Quiet Er}tovsnent. Lessor hereby agrees not to interfere with Lessee's quiet use mid enjoyment of the Equipment so long as Lessee is not in default hereunder. Section 5.01J Ilse of the Etautlrsnent_ Lessee will not install,use,operate,or maintain the Equipment improperly,carelessly,in violation of finny applicable law,or in aritarnner contrary to that contemplated by this Agreement. Section 5.031 Ri ht of Inspeet€on. During the Lease Terns,Lessor and its olfivers,employees,and agents shall have die right at all reasonable times during business Fours to enter into and upon the property of the Lessee fur the purpose of inspecting the Equipment. Section 5.0,4. t3lisclulmer of Warranties. LESSOR MAKES NO WARRANT` OR REPRESENTATION, EITHER EXPRESSED OR IMPLIED, AS TO TO E VALUE, DESIGN, CONDITION,MERCHANTABILITY, OR FITNESS FOR PARTICULAR PURPOSE OR FITNESS FOR USE Or T-HE I?QUttIIMENI', OR ANY OTHER WARRANTY WITH RESPECT THERETO AND, AS TO LESSOR, LESSEE LEASES THE E QUIPIvIENT "AS IS'. ht no event shall Lessor be liable for any loss or dainage, including incidental, indirect, special, or consequential damage, in connection with or art__ing out of this Agreement or the existence,furnishing, functioning;or Lessee's use of any iters or products or services provided fear in this Agreement. Sectioin'S.US. Vendors Warranties. Lessee iney assert claims and rights that the Lessor may have against any Vendor of any porion of the Equipment. ARTICLE VI RENTAL PAYMENTS Section 6.0 . Rental Payments to Constitute a General Obliaatiorr of Less+re. 'file obligation of Lessee to pay Rental Payments hereunder is a general obligation Of esscc payable front any available fonds of Lessee.Nothing contained herein shall constitute a pledge of any funds or monies or other property of Lessee o�ler than as set forth it)Section 7.02 hereof Section ba�2. .Interest and Principal Components. A portion of each Mental Payment is paid as interest, and the balance of each Rental is paid as p incipal. Exhibit D hereto sets forth the interest component and the principal component of each Rental Payment during the Lease 1'enn. Section 6.t 3, Rental Payiuents to be Unconditional. The obligations of Lessee to make Rental Payments, and to perforin and observe(lie covenants acid agre6hients contained herein, shalt be absolute and unconditional in all events, except as expressly provided under this Agreement, notwithstanding anyt'ispute between Lessee and Lessor,any Vendor or miy other person. Lessee shall:tot assert any right of set-off or counterclaim against its obligation to rnalI payinerits under this Agreement, however,nothing herein small be construed to release Lessor from the performance of its obligations hereunder; and if L sor shall fail to perform any such obligation,Lessee may institute such legal action agairsst Lessor as Lessee may deem necessary to complete the perform£ante of such obligation or to recover damages therefor. I ARTICLE VII f. TITLE'TO EQUIPMENT;SECURITY INTEREST ,Xt Section1. 'f the to ttte Eutz' spent. During tine term of this Agreeinerst title to the Equiprrrent shall vest in Lessee,subject to Lessor's rights upon all Event of D_� fsiult. Section 7. 2. Secus-Ity Interesxt. As security for its obligations hereunder Lessee grants to Lessor a security interest constituting a first licit on rite Fquipreint and on h I additions,attachments,accessions,and substitutions thereto,and oil any proceeds therefrom. Section' Ltans and ncutnlsrattces to Title. Lessee shall promptly discharge any liens placed oil the Equipment other thais those created by Lessor. i IARTICLE VIII i SAMPLE LEAST AGREEMrNT-HAC;CC: page 2 3127It11 j ,r _ .... I i MAINTENANCE;MODIFICATION-,,'FAXES;INSURANCE AND OTHER CHARGES II Section 8.01; Mainteatattt_ _g„of Let intrret�t !ry ,essee. Lessee will, at Lessee's own cost mid expense, maintain, preserve, and keep the Equipment ill good rep i,working order,and condition. If requested by Lessor,Lessee will eater into a rnainterrance contract for the.Equipment reasonably satisfactory to both Lele raid Lessor. section 8.02.1 iFitxes Other Gave nn e a It a silidty QATEW hl the event that tfre use,possession,or actluisition of die Equiprttertt is found to be subject tbtaxation in any form(except for income taxes of Lessor),government charges or utility charges,and expenses,Lessee will pay all such taxes aid charges they torte due. Section 8,03. provisions iteaartfin Irrsnranee. At its own expense Lessee shall cause casualty,public liability,raid property damage hisurarrce to be carried and maintli ed(and evidenced by certificates delivered to Lessor throughout the Lzase'ferm)in tine amounts and for-tie coverages set forth Ex Mbit ,,provided thlif tite amount of casualt},and property damage insurance shall not be less than the tiler) applicable Purchase Price. All insurance proceeds from casualty,l'sses shall be payable as hereinafter provided in this Agreement. Section 8.04 dv aces. In the event Lessee shall fail to maintain the full:insi ratrce coverage required by this Agreement or shall fail to keep die lsquipment in good repr(rr and operating condition,Lessor may(but shall be under no obligatiun)purchase the required policies of insurance and pay the premiums oil the samemay make such repairs or replacements as are necessary and provide for payment thereof,and all amounts su hdvanced therefor by Lessor shall be repaid to Lessor,together with interest thereon at tire tate specified in Section 13.05 hereof: Section 8.05. Motliftcatiurrs, Without tine prior written consent of Lessor, Lessee shall not make any material alterations, modifications or attachnhents to£lie Equi tneiht. ARTICLE LX DAMAGE,DESTRUCTION,AND CONDEMNATION;USE OF NET PROCEEDS Section 9.N.j I3estrtrctlon,and Corrdemrnatlon, If(a)tine Equipment ur any portion thereof is destroyed (in whole or in part)or is damaged by lire or ot)hhr casualty or(b) title to, or tite temporary use of, tine Equipment or airy part thereof is takers under the exercise of the power of ernineirt domain,Lesse�and Lessor will cause the Net Proceeds of any insurance claire or condenuiation award to be applied either to the prompt repair, restoration, modificatibit, or replacement of the Equipment or, at Lessee's option, to die payment ill full of the Purchase Price. .Any balance of the Net Proceeds remaining at,Wr such work or pun chase has been completed shall be paid to Lessee. For prrpos6sl of this Article IX, the term "filet Proceeds” shall Mean tine amount remahhing from the gross proceeds of any insurance clahn or condemnation award tr deducting all expenses(including attorney's fees)incurred hr the collection of such claims or awards. Section 9.0rrsutliclency of flet Proceeds. If the Net Proceeds are insufficient to pay in full the cost of any repair,restoration,)codification or mplacemenl, Lessed sit 11 eltter(a)complete tine worst and pay any cost in excess of the amount of Net Proceeds,or(b)pay to Lessor the unpaid balance of the Purchase Price. Tit amount of the Net Proceeds in excess of the then applicable Purchase Price,if any,may be retained by Lessee. ARTICLE.X TAX COVENANT'S i Section 10 1. 'fax Covenants. it is the intention of the Lessee and the Lessor that tine interest portion of tine Rental Payments received by the Lessor be acrd retrials xcluded fron gross income for federal income tax purposes. Lessee covenants that it will take any and all reasonable and lawfir; action necessary to rt! )stain the exclusion from gross income for federal income tax purposes of the interest portion of flit Rental Payments,and that it will''N_ not intentionally per im any act or enter into any agreement or use or permit the use of tine Equipment or any portion thereof in a manner that shall adversely affect the elusion tom gross income for federal income tax purposes of the interest portion of the Rental Payments, including (without limitation) leasing al or any portion of tine Equipment or contracting to a third party for the use of operation of all or any portion of the Equipment if entering into such Ie or contract would have such effect. Without in any wey Limiting the foregoing,Lessee shall not: (a)take ail action that would,cause this Agreement to be an "arbitrage bond" without the meaning of Section 148(a)of the Code or a"hedge bond"within the me�ing of Section 149(g)of the Code; (b) fail to 'ay any rebate due to the United States at the does and in the manner required by Section 148(f)of the Cotte; (c) penni the Equipment#o be used for any private business use or permit th4 Equipment or any facility at which the Equipment is located to be subject to a manager tent or servicej�onlract that does not meet the requirements of Revenue Procedure 93-19;or (d) enterjl�nto any arra+tnent that would cause the Rental Payments under this Agreement to be federally guaranteed within tine meaning of Stoical I49(b)of thbj Code, j ARTICLE XI OPTION 1*0 PURCHASE �3 Section fill.01. Purchase Rights3. Lessee shall be entitled to purchase Lessor's interest in the Equipment:(a) upon payment in full of all Mental Payments in accor� tce with Exhibit hereof and all other amounts due hereunder; or(b) provided there is no Event of Default thereunder and upon written notice deli red at least 30 days in advance, Lessee rimy purchase the Equipment on any Rental Payment elate by paying to Lessor tite Rental Payment then due,tigetlter with Purchase Price set forth in mil;?together with all other amounts then due hereunder. i l i} SAMPLE LEASE�GREEM EN T 11ACCC 3/29/Ol Page 3 i I ARTICLE X11 ' ASSIGNMENT,SUBLEASING,INDEMNIFICATION,MORTGAGING,AND SELLING i Section 12.01: Asslsrinient yr Sirie by Lessor. (a) 'finis Agt';eement,and t#te obligations of Lessee to make payments hereunder,may be send,assigned,or otherwise disposed of in whole or in part to one or snore su essors, grantors, holders, assignees, or subassignees by Lessor. Upon any sale,disposition, assignment, or reassignment, Lessee shall be provided with trJ ttotice of such assignment.During sire terns of this Agreement,Lessee shall each keep a complete and accurate register of all such assignments in forin necessary to comply with Section 149(x)of sire Code. r (b) Lessee ttees to make all payments to tiie assignee designated in the assigruntuty notwithstanding any claim,defense,setoff or counterclaim whatsoever(except ari6Wng front Lessor's breach of this Agreement)that Lessee may frurn time to time have against Lessor or Vendor. Lessee agrees'—,to execute all documents,)including notices of assignment and chattel mortgages or financing statements,which may be reasonably requested by Lessor or its assignee to protect its ihierest5 it,the Equipment mid in this Agreement. (c) Lessee I�reby agrees that Lessor may sell or offer to sell this Agreement(i)through a certificate of participation program, whereby two or 'note interests are crelted in the Agreement, the Equipment, or the Rental payments; or(if) with other similar instruments, agreements, and obligations through it pool, trust,I)nrted partnership,or other entity;provided that in connection with any such sale or offer,Lessee shall not be lequired to enter into any other agreements"€iJr incur any liabilities or obligations other than those expressly set fortis in this Agreement. Section N Sal ssltinrrient or 3ubfeasing liY t essee. 'Phis Agreement acrd the interest of Lessee in the Equipment may not be sold, assigned,or encurnbet� by Lessee wittiout the prior written consent of Lessor. Section 12.t Release slid Indsniniffeati, Coveitart . To the extent permitted by(lie laws and Constitution of the State,Lessee shall protec% bold harmless,grid inAtttnify Lessor from and against any and al#liability,obligations,losses,claims,and damages whatsoever,regardless of cause thereof except those resulting from Lessor's intentional or negligent sets and expenses in connection) therewith, including, without limitation, counsel fees Arid expenses,penalties,and interest arising out of or as tiro result of the entering into this Agreement,the ownership of any item of the Equipment,the ordering, actitrisition, use, oper glon,condition, purchase,delivery,rejection,slorage,.or return of any item of the Equipment or any accident in connection with the operation, use,c€ttidit,vn,possession,storage,or return of any itern of the Equipment resulting in datnage to property or injury to or death to any person. The indemnification ailsing tinder this paragraph shall survive the termination of this Agreement. ARTICLE XHI EVEN'I'S OF DEFAULT AND REMEDIES Section 11,1011. EYenis of I3efoult• The following constitute"Events cf Default"under this Agreement: (a) failure by Lessee to pay any Rental Payment or other payment required to be paid hereunder when due;or(b) fru#tire by Lessee to maintain insurance on the Equipment in accordance with Section 8.03 hereof,o�(c) failure by Lessee to observe and perform any other covenant,condition or agreement on its part to be observed or perfnnned for a period of 30 days a ler written notice is givers to Lessee by Lessor,specifying such failure acrd requesting that it be remedied;provided,however,that If the failure stated its such jigtlac ommot be corrected within such 30-day period,Lessor will not unreasonably withhold its consent to an extension of such time if corrective action is instituted by Lessee within the applicable period and diligently pursued untit the default is corrected: or(d) initiation by Lessee of o proceeding under may federal or state bankruptcy or insolvency law seeking relief under such laws concerning its indebtedness. Section 13, Z. Remedies On Default. Whenever any Event of Default shall have occurred and be continuing,Lessor shall have t#ie right,at its sole option without am y lbrther demand or notice,to take any one or any combination of the following remedial steps: (a) "fermi to this Agreement aid retake possession of t#re Equipment wherever situated,and sell or lease,sublease or make other disposition of 1 ,. (lie Equipment for use over a terra in n commercially reasonable manner,all for cite account of Lessor,provided that Lessor shall apply tine proceeds crony such sale or other disiosition in the following manner: 1RSTLY,to pay all proper and reasonable costs and expenses associated wilt)tine recovery,repair,storage,and sale of the Equipment, including reasonable. orneys`fees grid expenses; ECONDLY,to pay Lessor())the amount of all unpaid Rental Payments,if any,which are then due and owing,together with interest and late charges the4on,(ii)the(lien applicable Purchase Price(taking into account the payment of past due Rental Payments as aforesaid), plus a pro mita allocation of intereA�at tine rate utilized to establish the interest component for the Rental Payment next due, from tine next preceding due date of a Rental Payment until the delle of payment by tine buyer,and(iii)arty other amounts due hereunder. C[1t1tDLY, to pay the remainder of the sale proceeds, purchase moneys, or other amounts paid by a buyer Of the Equipffient, to the Lessee;or (b) 11roJed by appropriate court action at law or equity to enforce perforivanrt e by the Lessee of tine applicable covenants of this Agreement or to recover for the brea6h thereof. ' All of r,4see's right,title,and interest in any Equipment the possession of which is retaken by Lessor upon the occurrence of an Event of Default shall terminate imnjdiately upon such repossession. Section it3.03. I2eturrn of EgulL)gnen , Upon an Event of Default, Lessee agrees to allow Lessor to recover the Equipment by peaceably delivering the Equl�ment acid title thereto to Lessor at a reasonable location specified by Lessor,at Lessee's sole cost and expense. Section 3.04. No Remedy txglusive. No remedy herein conferred upon or reserved to Lessor is intended to be exclusive and every such remedy shall be eulru€ative and shall be in addition to every other remedy given under this Agreement or now or hereafter existing at law or in equity. Section 113.05, bate Charges Interest an I e#'intent Any Rental Payment not paid on tyre due date thereof shall,to the extern permitted by law, bear a late ch4rge equal to two percent(2°/a)of the amount past due,but in no event less than$100.00. Any unpaid Rental Payment or other amount payable by Lcsseejio Lessor hereunder shall, to the extent permitted by law,bear-interest at tine lesser of(a)the rate payable on the principal portion of t#te Purchase Price,pl five full percentage points per annum,or(b)the maximum rate allowed by law. Section 3.{35. Force lkI re If reason of force titaleML,Lessee is unable in whole or in part to cavy out its agreement on its part lierein contained,other than the obligations on the part of Lessee contained in Article VI and Section 8.03 hereof,Lessee shall not be deemed in default during tine j• SAM1'LL LFA.Si AGREEMENT-#IAC.CC 3129101 Page 4 7 ii i ij continuance of such in lity. The term"force ninieure"as used herein shah mean,without limitation,the following: acts of God,strikes,lockouts or other industrial disturbances,iabt of public enemies,orders or restraints of tory kind of the government of the United States of Arnerica or the State or any of their departments, agencies l officials, or any civil or military authority, insurrections, riots, landslides, earthquakes, fires, storms, droughts, floods, or explosions. AR'T'ICLE XIV MISCELLANEOUS Section 14.111' Notices. .All notices,certificate,or other communications hereunder shall be sufTtciently given and shall he deemed given whqp,, delivered cir,nailed by r4, gisiered,nail,postage prepaid,to the parties at the addresses set ford,on the first page hereoL Section 14.021. Binding Elf'ecf. This Agreement shall inure to the benefit of and shall be binding upon Lessor and Lessee and their respective successors and assigns.;I Section 14,011 Severe i it - In the event any provision of this Agreement shall be held invalid or unenforceable by any court of competent .jurisdiction,such holdi4 shall not invalidate or render unenforceable any other provision hereof. Section 14.041 Anrerrrlr ter ts. All amendments hereto must be in writing. Section 14A i 11+xecutl. in Coutrter arts.This Agreement may be executed in several counterparts. Section 14 -1 Applicu<ble f etv. This Agreement:shall be governed by and construed in accordance with the laws of the State. Section 14.0' Callfiuns Tie captions or headings in this Agreef tient are for convenience only and no way define,limit,or describe the scope or intent of any provision§sir sections of this Agreement. Section 14.08, Entire AtdreefrrenL This Agreement constitutes the entire agreement between Lessor and Lessee. No waiver, consent, ,modification, or chane of terns in this Agreement shall bind either party unless in writing signed by both parties, and thee, such waiver, consent, modification, or chane shall be effective only in the specific instance acid for the specific purpose given, "There are no understandings, agreements, representations, or waOnties, express or implied, between Lessor and Lessee not specified Herein regarding this Agreement or (lie Equipment leased hereunder. Any terms;and conditions of any purchase order or other document submitted by Lessee in connection with this Agreement which are in addition to or inconsigtBnt with the terms and conditions of this Agreement will not be binding on Lessor and will not apply to this Agreement. Lessee by tine signature below of its authorized representative acknowledges that it has read this Agreement, understands it,and agrees to be bound by its terms and conditions. ARTICLE XV I IIEFEASAJNCE i Section 15. 1, Defeesance. The Lessees obligation to pay the Purchase Price will be deemed to be paid and the Lessee's obligations under this Agreement will ll discharged and satisfied upon the deposit by the Lessee with the Lessor of(a)moneys sufficient to pay the Purchase Price or(b) direct obligations of 6c United States or obligations which are directly insured or guaranteed by the United States or,with the pries written consent of the Lessor, any other,�bligations in which any sinking fund for bonds issued by the Lessee may legally be invested in the principal of and interest on which when due will rovide sufficient,moneys for such payment. IN Wfl"NgJ S WHEREOF, Lessor has executed this Agreement in its corporate nano, attested by its duly authorized officers, and Lessee has, caused this Agreement to be executed in its corporate name,attested by its duly authorized officers. All of the above occurred as of the date first written on the heading hereof. } Attest: LESSOR- 13y: _ By: f Title: Ij J 11 Attest: c! LE.SSfiE: housing Authority of the County of Contra Costa it f By: _ _ By: Title: F� I` SAMPLE LEASEE ORLEMENT-IJACCC. Page 5 3129/01 ;i EXHIBIT 11 OPINION OF L.ESSEC'S COUNSEL ('to be furnished on Atfomcy's Letterhead) i ii Lessee: ;� Date of Agrecnient: i. Getitletneti� I As counsel fiSi ("Lessee"),I have examined duly executed originals of the Municipal Lease and Option Agreement and l'scrow Agreement da€dd�� _ ,2002,between the Housing Authority of the County of Contra Costa("Lessee"), and("Lessor")(collectively the"Agreetnents")and based upon the examination and upon such other exarnination as I have deemed necessmy or appropriate,I am of the opinion that: b. Lessee is a public body corporate and politic,legally existing under die laws of the State of California. <.. The Agreerne its have been duly authorizer!,executed,and delivered by Lessee,pursuant to constitutional,statutory,or Home rule provision which authorize tli€s transaction and the Resolution,attached as Exhibit A to the Municipal Lease acrd Option Agreement. d. The Agreein4its are legal,valid and binding obligations of Lessce,enforceable in accordance with their respective terms. In the event the Lessor obtains a'judginent against Lessee in money dernages as a result of an event of default under the Municipal Lease and Option Agreenient,Lessee will be obliged to pay such judgment. C. To the bestIf niy knowledge, no litigation is pending or threatened in any court or other tribunal,state or federal, in any way questioning or affecting 0161 of the Resolution or the Agreenients or that,if adversely deterinined,would adversely affect the transaction contemplated by the Agreemtirlts or the security interest of the Lessor in the Equipment. f. The signatuiis of the officers of Lessee which appear on the Agreenients are true slid genuine;I know such officers and know them to hold the offices sec to fth below their mines.\ g. 'the authortiation, approval acid execution of the Agreenients and all other proceedings of the Lessee relating to the transactions contemplated thereby hav�been performed in accordance with all open meeting laws,public bidding laws acid all other applicable state and federal laws. i Respectfully Subinittdd, �I L r�t i i I; i f� t �I f SAMPLE LEASE GREEMEN I -I IACCC 3129/01 Page 7 i' i i EXHIBIT C i 1� j DESCRIPTION OF THE EQUIPMENT r,ouii3wm'AND Eta IPMEN']'LoCATIf)N: Energy saviEig equipment as described in the Energy Services Agreement dated (See attached) I1 i i ' I �i i ji I i i 1 � ' I t tie Equiper3e<tt installed pursuant to the Municipal Lease and option Agreement,dated? 2002 between Housing Authority of lire County of Contra Costa as Leg I s ee,and as Lessor. II i ! Title: I Date: — — --- i � is I1 i ! Il { it I Page$ SAMPC.,E LEASE�, KEFMENT-MCCC 3/29/01 'I 1 EXHIBIT E f ACCEPTANCE CERTIFICATE To Lessor: is In accordance with 004ernis of the Municipal Lease and Option Agreement (the "Agreement"), dated between ("Lessor"), and the undersigned("Lessee")I!Lessee hereby certifies and represents to,and agrees with,lessor as follows: 1. 'l-he Equi�inestt,as such terns is defined in the Agreement,has been delivered and installed at the Equipment Location specified in Exhibit C "Description of tte Eq}[ anent°to the Agreement and accepted on the date indicated below. 2. Lessee hI conducted sues: inspection or testing of the Equipment as it deems necessary and appropriate arta hereby acknowledges that it accepts the Equipment`or all purposes. i 14 3. No Eveniilof Default, as such term is defined in the Agreement,and no event which with notice or lapse of time, or both, would become an Event of Default,has occurred and is continuing as of the date hereof aJ IJ i Lessee: _ I By: __ Date: i li i� i; SAMPLF LEASE GREEMENf-HACC:C Page 9 3129/01 II I+ EXIHIJITI+ INSURANCE COVE RAGE,REQUIREMENTS TO: i FROM: fiouiing Authority of the County or Contra Costa �i SUBJECT: INSURA E COVERAGE REQUIREMENTS 1. In accordant J ith Article VIII,Section 8.03 of the Municipal tease and Option Agreement,we have instructed the insurance,agent named below (please fill in ante,address and telephone number) (Str et Address) (City,State,and Zip) (7, lephone Number) to issue: a. -Ali Risk Physical Damage Insurance on the leased equipment evidenced by a Certificate of Insurance acid Long Form Loss Payable Cl,use mottling � a as loss payee. C6 erage Required: Dull Replacement Value AND b. l'tlplic Liability Insurance evidence by a Certificate of insurance naming or its assigns as an Additional Insured. I Minimum Coverage Required: S00,000.00 per person $ X00,000.00 aggregate bodily injury liability 100,000.00 property damage liability OR 2. Pursuant to; ection 8.03 of the Municipal Lease and Option Agreement,we are self-insured for all risk,physical damage,and public liability and will provit14 proof of such self-insurance in tetter form together with a copy of the statute authorizing this form of insurance. C 3. Proof or initrance coverage,will be provided prior to the time that the equipment is delivered to us. r { Ilousing Authority ofthe County of/tnntra Costa a By: "Title: Dated: €F SAtull'LE LEASE GREEMEN F-I IACCC 3/29101 Page 10 ij it EXHIBIT G ji ' Certificate of Lessee 1,___ a tllily authorized representative and acting Executive Director and Secretary/Clerk; respectively, of the trained Lessee under that certain Municipal Lease id Option Agreement dated with as Lessor(the"AgreenrenV)hereby certify as follows and in accordance with the requirements of the Agreement. Capitali �d terms used herein have the same meaning as in the Agreement. A. INCUMBENC OF OFFICERS AND SIGP{ATVRES• The Secretary/Clerk o'the Lessee has custody of the records of Lessee and the following officers of the Lessee are duly elected or appointed,and hold the office or title set fort apposite each individual's narne,acid the signatures opposite their names are true and correct,and where required,have been filed with the appropriate off als of tite State,acrd each such individual has the authority to enter into tire Agreement on behalf of the Lessee: NameTitle/Office Signature t I. ESSCi` UTA1.UJSC; 1. The 1Equipirient will be used by the Lessee for the following governmental purpose: i Reducing enerizy and water consumption and costs at various facilities owned by Lessee. 2. Th iEquipment is essential for the functioning of the Lesser acid is immediately needed by the Lessee. Such need is neither temporary nor expected to diminish during the Lease Tenn. The Equipment is expected to be used by the Lessee for a period in excess of the Leese'f erm. C. SC,C I'IOK i6��B)(3)MATTERS: 1. Tl11)Agreement is hereby designated as a"qualified tax-exempt obligation'"for tyre purposes of Section 265(bX3)of the Code. i certify that the reasonably anti ipated amount of tax-exempt obligations that will be issued by or oil behalf of tire Lessee and all of its subordinate entities,if any, during the current calel,lar year(excluding any obligations issued to refund within 90 days thereafter the same principal amount of any prior obligations) does not exceed$10,0(1,000, as shown an the attached Schedule A. No entity has been fornned by the Lessee or for(lie benefit of the Lessee in order to avoid the$10,000,000{(jinitations in IRC 265(b)(3)(C)and(D). This Certific ate is based upon facts,circumstances,estimates and expectations of the Lessee as of the date on which the Agreement was executed, ` and to the best of my l6 owledge and belief,as of this date,such facts,circumstances and estimates are true and correct and such expectations are reasonable. IN WITNESS VA-IE E017,1 have executed and delivered this certificate as of the _ .day of--,2001. Executive 17irector and Secretary/Cler€c 1 i it I �I it ,I !i {i SAMPLE LEASE AU REEMENT-IIACCC Page l 1 3/29/01 {! i 1 42109302 Housing Authotity of the County of Contra Costa CASHFLt3WOROJECTION -- APPENDIX 0 it i Base l3as and Reioa �Numbar iSr Afflicted ApattmorrW i,186 Rates Based on Fiscal Yeer. Fi Resident-Pak{ RImMantptd Elu9rk(k4YFt3 WstsrlSever flee(themes) Elect€c INRsTOTAL PROJECT COST! $1,921,144 Base use' 7 848,384 104,288 401,882 2,5Rates, 10.1150 $i.9019 90.8880Escalation 0A% u .�t`.'= Owner Cost Shate: nCostShate: 5125,900� Consumption Savings and Savings Ftates Pot4tj5sIU5#ltySubsidies: $148,000 Rates based oil Fiscal Year 2002 Cost tftiTrertstsr Ownership: $228,819 Asset HACCGpa# MACCC-pakif HACMIRsid R sidsnRpa{d Rae}dent-Pa i Gas stmai E#ectdctkWhI WatsAvaatjccf ass ends Electric kWit R¢pPiNANGfNC4 Savings 0 141,958 2$,582 D 1,218,535 i j Amount: $ItM,465 Rates' $0.9895 10.1150 $2.0725 $0.8880 so.I150 j Term: 12 yrs. Escals}icni 0.0% 0.0% 4.084 _ 0.0% 0.0% 1 #niareal Rate: 4.5044 FHACGG-psi FiACCG-paid FtACCC- ekt RES-PAID RES-PAID �Tola)AudlKst' $30,000 GAS ELECTRIC WATEWSEWr_R GAS ELECTRIC TO AL BAS .BILL BASE BILL BABE BILL' BASE BILL BASE BIL SASS 91 A a C i eA+ +Gip+2003 33,337 1108,835 $157,807 $358,076 $300.700 958,588 Subcontractors; $0 2004 $33,337 $108,835 $187,907 $350,078 $300,100 $98$,$$8 CartBngency: $0 2005 $33,337 1108,835 $187,007 5358,078 $300,100 $9$5,1!88 SUSTOTAL $0 2068 $33,337 $108,838 1187,907 $358,07e $300,700 1988,666 2007 $33.357 $i0a,a35 $187,907 $356.078 $300,100 $948,559 Cc{ { coon t,:jii tntsrast $32,504 2008 $33,337 $108,835 $187.907 $358,0711 1300,700 $988,$88 2009 $33,337 IMAM $187,907 $388.075 $300.700 19si3,s'" as Ca to s $0 2010 $33,337 $108,835 $187,907 $358.079 $300,700 $966,086 2011 333.337 $108.835 $187,907 $358.075 $300,M $908,850 2012 $33,337 11108,835 $187.907 $368.018 $300,700 $9e8,8s9 2013 133,337 9108.835 $197,907 $358,076 $300.700 $959,859 t, Amoss;61.page 2034 $33,337 1108,935 3187.907 $386,078 $340.700 $eaa,55s Bass Maru7 g a Inspection Peas' 131,300 2018 $0 $0 so $0 $0 $4 20itl $o s0 s0 $0 $0 $0 - - M- 2017 $0 10 50 SO $0 s0 $400,044 !.308,024 $2,254,984 $#,272,949 13,808,402 111842270 AHA GiU54PTt044 AVS -' Gas: 0.096 -jiAC�LGPsd MACCC-pa# �HAGCCPad RES-261[7 RES-PAID Eischic: 15.0% GAB ELECTRIC WATEfi1SEVJSR GAS ELECTRIC TOTAL Water: 25.5% SAVINGS SAVINGS SAVINGSSAV}NGS SAVING SAVING gF i f f�T 8832 #YJ7 N SAYINGS GN i JL K L-G+ +I+,t+ Gas: 0.0% 2003 0 $#9,325 58,083 $6 140,131 $211,850 Electric: 46.9% 2004 $0 $18,328 $57,290 $0 1140,434 $213,753 2005 $0 $18,325 $59,589 $D lim'ial 11218,0146 Consumption invings is a percent of bxsolute twat total use. 2008 $0 $18,325 $51,972 $0 $140.131 $2i9,429 2007 $0 $15,325 1:84,461 $0 $140,131 $220,90$ __..._..._.._,._..._...�_„_.._. 2068 5o $15.325 $87.029 $0 '$140,131. 1223,489 2009 $0 $18,325 688.710 10 $140,131 $228,197 2010 10 $18,325 $72,498 so $14o,13t 11228,985 2011 $4 116,325 175.398 $0 $140,131 $231,855 2012 $0 $18.325 $78A14 $0 $140,131 $234,571 2013 $0 $19,328 $81.551 $0 $140,131 $23a,00s 2014 $0 $16,325 $84,843 10 $140,131 $241,270 2015 to 10 SO $0 $0 $0 2016 $0 $0 $0 $0 $0 $0 2017 $0 so $0 _ 0 $0 0 $0 1485,904 $827,813 so $1.991.679 $2 7652 5 ADD-ON SUBSIDY C3FB7aPE#< . S DEBT CC8 ANNVA FROZEN to ALLOWANC OF �.. excess it PAYMENTBEE WATER BAS AD1tIBTHIVTit SAVING SAVING �! N i� 29603 $181,112 $71,300 n 355,093 THAT 95.0 Jo $50,639 li 2004 $159,512 $3Z,Z39 357,195 $158,487 94.4% 51 I,8o3 i 2005 1159,912 533,206 359,555 $156,457 93.9% 333,227 2009 $169,$#2 534,jb2 36#,971 $159,467 83.3% 334,fi1<_ 2007 $189,512 335,225 564.451 $tsa,467 02.7% S16,061 ,rd 2008 $458,812 538,213 $67.419 $166,451 92.1% 317.459 2009 $169,142 $37,374 369.710 $169,457 91.5% St 4,l5i 2D i0 $i9g,oi2 $3MA95 372,495 $t56,45T 90.9% $20,84$ 2614 1189,612 $39.6501 5,5,395 $15$,457 90.3% 522,593 {{ 201 2 1169,412 344,539 $19,414 1186,487 89.5% $24,420 .,I 2013 1169,812 342.063 381.551 $156,457 880% 126,931 2014 $199,612 343.327 584,313 $168,487 $0.3% $28,331 20i5 00 SII s0 $0 0.0'x5 3o I 2618 $4 34 50 $4 6.0$5 $6 20i7 s0 s0 se s0 0.0% s0 _ 2,058,344 444,211 $827,813 1,677,481 91. S223,743 (1)Walat�ev#ngs cost par CCF based on weighted average cost of water tar normal uses and#nlgat#arr use sit 916 sties whrra water-saving measures ars to be Implemented. 121 Water,ass b#3lnciudes only wait which are sttbpsct 18 change It water la cansatved. Fixed sewer c hargaa arm not#netudad. (3) HACC,•paid gas and 819cide Bass Uses Include Duty those sceotalta iorwhiah we have received data to date. Many accounts are missing from fie data ptovidbd to CGS. Ro3ld 1t-pald gas Is based on HACCC uMy a9avraness In*"ad at time of audit CCS has not raviswed any actual resident gas accounts. (4)Etactd6 unk cost is the marginal kWh cost. The average cast per kWh t1 higher for mast accounts. Mool�nt-paid Des rate is based an HACCC unit coal par therm In eeetd of"mm of audit, !1 i !1 j APPEND X E-1 C(; NTI?ACT COST, ANNUAL SERVICES, AND HotTRLY RA'rEt s { (a) J Tile Housing Authority of the County of Contra Costa agrees to pay to Citizens, . tlhe aIunt equal to the Contract Cost, as indicated below, in accordance with the ternis descrh ed in Section I I of the Agreement. The Contract Cost is subject to change in accordance with the provisions of Section 1 I of the Agreement. CONTRACTCOST: $1,695,165 1 This cost is net of the estimated $225,679 Cost of Ownership Transfer fee to be paid by HAC C directly to PG&E to assume ownership of electric power distribution at applicable developments and, may be adjusted in the event that the Housing .Authority of the Ct ttnty of Contra Costa elects to add ECMs during the contract negotiation period. (b) Fixed Annual Services Fee for Phase Ill Operations Services: In the event that the Housing Authority of the County of Contra Costa elects to receive services during.Phase Ill" fr�jn Citizens, such services shall be provided in consideration of respective fees to be 11hutu lly determined by CITIZENS and the Authority. Such fees for the first contract year aa•e as follows, increased annually by 3%per year: ANNUAL SERVICES FEE: $31,300 i' (c) Hourly Rates of Citizens' and Subcothtractor Ern loyees 4 frhr zrdditie�nal services Pres dent $140 Vicd President $130 Dire' for of Program Development $120 Dire tor of Technical Services $120 Sr. onstruction Manager $1,10 Sr. nergy Engineering $1'10 Cori truction Engineer $100 Financial Analyst $SO En�rgy EngineOr $55 Resident Edwt'ation Specialist $70 Energy Analyst $60ProI ect Development Assistant $50 l 1 i( Isn�rgy Services Agreement 12)4/2002 j t i� E-2 CHANGE ORDER. FORM (J:1equest & Agreement for change in Plans and/or Specifications and/or Contract) Chat! e Request No. By i lA CCL: __ _ Date: lepattttet3t: _ __ Title: i Proied t No. _ Contract No. Site: _ I. R QUEST Description of change: H. t ITIZENS' AGREEMENT For ai,j costs involved in this change including extensions of tune herein requested, CITIZENS proposes to perforin the work described in accordance with the provisions of the subject Agreement arid certifies that the attitched coast data is accurate,complete and current,and inatherrnatically correct. Payinent shall be nude on the basis of: ( ) '' (a) Predetermined lump sum total of (add) (deduct) ( ) (b) Lump sutra "not-to-exceed" (add) (deduct) (Max. price based on contract or negotiated unit prices) ( ) (c) 'rime&Material Basis "not-to-exceed" (add) (deduct] $ (Comported in accordance with provisions of the Contract) Place an "X" beside selected proposal method and strike out either(add) or(deduct) whichever does not apply. if necessary, attach detailed estimates and breakdown for abU'�e in accordance with change order instruction. A claim for work performed under pro lest shall 146'submitted per(c) above. An'ktension of contract tirrte of calendar days to _. is requested. By Da e: _. i, Tine: _ _ --- Contract Award �r I Eli,, rgy Services Agreement 1202002 I I� j I� 1IACCCAPPROVAL: Previous Additions $ _ previous Deductions By: Net Total Date: - -This Change Total - i li i i' I� i !I i I'll i� 1� I I� 1 V I' f r I i I i ;I i I� I� Energy Services Agreemmt 12X9/2002 'I i) APPENDIX 1`' �j DELIVERY AND ACCEPTANCE CERTIFICATE HAC'�,'C hereby acknowledges receipt of that portion of the Energy Conservation Mea$ores (t ie "ECMs") described in Attacl:unent B to the Energy Services Agreement (the " greelnent") between IIACCC and Citizens, as substantially complete and in good ' Worki�jg condition, which are listed on Schedule F (1) hereto. HACCC hereby accepts the ECMs listed on Schedule F (1) hereto after full inspection thereof as satisfactory for all pgrposes of the Agreement to which this Attacimient F is attached and. the Lease exec�'ted by HACCC and. Lessor, Citizens. HACCC agrees to snake the related paytrI nt(s) to Citizens as set forth in Section(11) of the Agreement. i Date Accepted by FIACC:C: i 1 Accepted for: HOUSING AUTHORITY OF THE COUNTY OF CON'T'RA COSTA Accepted by: Name:: Title: i� Nott. Schedule l (1) setting forth the 11CMs to which this Delivery and Acceptance Cerif ficate relates is attached hereto. ACI NOWLEDGMENT OF CITIZENS r Citi ens hereby acknowledges that the total amount due for the ECMs described in Sch4dule A (1) hereto is $� „ i .Irate Accepted by Citizens: Accepted for: EUA Citizens Conservation Services, Inc. f Accept�d by: Name: Title: s I ' I Ii I� I,a i i ME Ch W �i 91 r:-, �!,F 91 V. is d b y� �viG utia r .� w l r3 um A Be 15 rn it I 'i I , i II APPENDIX H STANDARDS OF COMFORT AND SERVICE j NOT j APPLICABLE NO HVAC IMPROVE'MENTS IN SCOPE OF WORK I ; � j i � I r I i i j 11 j i i I i� x i i Ii I i l .... APPENDIX I { CONDITIONAL ENERGY SAVINGS GUARANTEE *NERGY PERFORMANCE CONTRACT GUARANTEE BY CITIZENS T� THE HOUSING AUTHORITY OF THE COUNTY OF CONTRA,COSTA Subsequei, to the Municipal Lease Commencement hate and throughout the 'rernt of the Project Operation Phase, as each of these terms are defined in the anergy Services Agreement (";ESA") between Citizens Conservation Services ("CITIZENS") and the Housing Authority of the County of Contra C69ta (tile "HACCC") dated _ , Citizens warrants that the HACCC shall realie sufficient electricity, natural gas, and water consumption savings, valued at the Baselines,!delivered rates and stipulated savings calculations contained within Appendices D-I and G to the I A,as approved by the U.S. Department of Housing and Urban Development("HUD") in the writteii approval dated and contained within Appendix L to the ESA, to fulfill the IJACCC's obligations to Snake installment payments as specified in Exhibit to the Municipal Lease and Option to Purchase Agreement executed by the HACCC on it if, in a g en year (every twelve consecutive months from the Municipal Lease Commencement Date), the total energy savings as specified above, are less than tine Debt Service Payment as delineated,' in Appendix D-f, or any mutually agreed-upon revisions thereto, Citizens will pay tixe HIACCC i to value of the difference. Payment shall be made within thirty(30) days of each Annual Reconcili tion, as that term is defined in the ESA. i Calculatib is of delivered costs per unit of energy shall be consistent with the methodology contained Wit 1111 A etxdix G of the ESA, as approved by HUD in tite written approval attached to the ESA as Appendif�L. Interest rates and financing terms shall be consistent with those within Appendix D-I of the-E§ and Exhibit _ to the Municipal Lease Agreement. In the event Appendix D-1, the Cash talo; Projection (Including Baseline), and Appendix G, the Utility/Energy Supplier Savings Calculati ns, are amended by matual agreement, the Guaranteed Savings shall be as provided in such am chtxent. H ll MeasureLiit, verification and computation of Energy Savings shall be consistent with such methodol>gy as may be required by the ESA and Appendices to tile ESA, and HACCC agrees that such methodology is acceptable. is Citizens lshall conduct Annual Reconciliations of energy savings as provided for in the ESA. This (3u rantee is subject to the satisfactory performance by the 14ACCC of its obligations under the ESA inc,�uding, but not limited to, continued operation of the Developments and proper preventive and routine Maintenance of the ECMs in accordance with file provisions of the ESA. This Guarant' e and all of Citizens' obligations hereunder shall terminate upon termination or expiration of the E A and/or Event of Default by the HACCC. f HACC( : ;+ By: - '� _ _. _ _ bate: Attest: , litle:_.' _ EnergyServicesAgreementAppendices Page I Decenier 9, 2002 I i; i fi �I EUA Citi4ns Conservation Services,Inc. is By. _r� -- � � _ Date:_ is i i r I� if i ;f � I i l * I� 3 i� I lr � E i i i ii tI ij j i � y, c f� I ii I i I` Energ�)"Services Agreement Appendices page 2 I?ecei Iiber 9, 2002 _ l 1 'r APPENDIX .l NOTICE TO PROCEED f ON I4ACCC LETTERHEAD] Ms. JA�iice S. DeBarros Vice&esident EUA Cditizens Conservation Services, Inc. III S' een Street, Suite 410 Pram r gham, MA 01701 i S(1t3,i 1CT. NOTICE TO PROCEED Dear s, DeBarros. I In accordance with Section (5)A. of the Energy Services Agreement dated f"he l4ousing Authority of the County of Contra Costa hereby submits to EUA Citizens Conservation Services, Inc. ("Citizens") this Notice to Proceed in relation to the Scope of Servviees defined in the aforementioned Agreement. Si�ic��ely, j 110U�ING AUTHORITY OF THE COUNTY OF Ci)NTRA. COSTA Nanto': Date: _ Tine: I t c i i i� �I I� If !i f� APPENDIX IC SAMPLE INSTALLATION APPROVAL CERTIFICATE I TEST INSTALLATION ACCEPTANCE LETTER ii [ON IiACCC., LE 1 TERIJEADJ !!i !I Date 1_- a; NIS—�enice S. DeBarros Vii e president EUAi Citizens Conservation Services, Inc. I I I Speen Street, Frantingharn, MA 01701 !i Re: nergy Services Agreement ECM#---."Fest Installation Acceptance Certificate i Dean s. De'Barros: The �es OUSING AUTHORITY OF THE COUNTY OF CONTRA COSTA has reviewed srn of certain Energy Conservation Measures ("ECMs"), to be installed pursuant to the drove referenced Agreement, as set forthin the list attached hereto. I-IACC hereby approves such sample installation ECMs and, if applicable, their resp:gctive aesthetics and performance [lighting] levels, for installation in the following DE'ELOPMENTS EUA Citizens Conservation. Services, Inc. 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N ,u q � a W � � k - ' l ;i { i A i' 1� 1 � 1 � 0 A ('4 cWh <f <wi m vuMN � w�Nvrn pf �p qvirioov r r a�rCoo� p� WI m .N-v 6 oopd W � N h V N r3 w Q; v� N N Vl bh Yt V; M V1 G3 tl5 V� 4'1 {h 60 M W N l`. iV n '!i 45 iS 4'1 ,6 Vi b h OU GG Ct dh1 V1 SCS ri rS t3 « « h 0�6 6aC OBD O'8 X00 OBD W O�iP 6Y Citi 6�0 Y�6 6Q`V 06 4�0 OBD 0�p G�4 6D 08'C 00 8�0 C�C� m tt4 � �"+v�r ��v` v .�v'+r ^ o�•;��rv�Q � vaavw a « v�rav VY 69 cA 69 N i1!N i9 H 41 W 69 N 4'1 N 44 V3!A N N V4 H H H K M N i9 Vi 6R GAS r+; v,N 4!' en M M M M t+l M N wN N f i pp pp h W d� C N M Yl 10 h- w 01 O, b 4� fI t M OHS DRAFT 5/9/03 HOUSING AUTHORITY OF THE COUNTY OF CONTRA COSTA RESOLUTION NO. 2003/323 A RESOLUTION AUTHORIZING THE EXECUTION AND DELIVERY OF AN AMENDED AND RESTATED INDENTURE,AN AMENDED AND RESTATED FINANCING AGREEMENT, A SECOND AMENDMENT TO REGULATORY AGREEMENT, AN INTERCREDITOR AGREEMENT AND OTHER DOCUMENTS RELATING TO THE HOUSING AUTHORITY OF THE COUNTY OF CONTRA COSTA VARIABLE RATE REMAND MULTIFAMILY MORTGAGE REVENUE REFUNDING BONDS (LAKESHORE APARTMENTS), 1992 ISSUE C WHEREAS, the Housing Authority of the County of Contra Costa (the "Issuer") has heretofore determined to engage in a program (the "Program") of financing the construction of multifamily rental housing developments and in order to do so has previously issued its Dousing Authority of the County of Contra Costa Variable Rate Demand Multifamily Mortgage Revenue Refunding Bonds (Lakeshore Apartments), 1992 Issue C (the `Bonds")pursuant to an Indenture, dated as of November 1, 1992, between the Issuer and First Trust of California, National Association, as trustee, as amended by an Amended and Restated Indenture, dated as of September 1, 1994, between the Issuer and First Trust of California, National Association, as trustee,',and a First Supplemental Indenture, dated as of March 1, 1998,between the Issuer and U.S. Bank.Trust National Association, as trustee (as amended, the "Indenture"); and WHEREAS, the Issuer, First Trust of California, National Association, as trustee, and Lakeshore Antioch, L.P., a California limited partnership (the "Borrower"), have entered into a Financing Agreement, dated as of September 1, 1994, as amended by a First Amendment to Financing Agreement, dated as of March 1, 1998, among the Issuer, U.S. Bank Trust National Association, as trustee, and the Borrower(as amended, the "Financing Agreement"), providing for the loan of the proceeds of the Bonds to the Borrower and providing for repayment of such loan to secure the Bonds; and WHEREAS, the Borrower desires to substitute a credit facility issued by the Federal Home Loan Mortgage Corporation ("Freddie Mac") for the letter of credit currently securing the Bonds; and WHEREAS, the Developer, in connection with such credit facility substitution,has requested that the Issuer amend and restate the Indenture and the Financing Agreement, it is desirable that the Issuer enter into an amendment to the Regulatory Agreement, and Freddie Mac has requested that the Issuer enter into an Intercreditor Agreement, in the respective forms of, and for the reasons and purposes set forth in, the respective forms of Amended and Restated Indenture of Trust, Amended and Restated Financing Agreement, Second Amendment to Regulatory Agreement and Intercreditor Agreement present at this meeting; NOW, THEREFORE, BE IT RESOLVED by the Board of Commissioners of the Issuer, as follows: DOCSSFI:679077.2 44511-83 SAS 1. The Amended and Restated.Indenture of Trust in the form before this meeting is hereby approved, and the Chair of this Board or any Authorized Officer(as defined in the Amended and Restated Indenture of Trust) is hereby authorized and directed to execute, and the Secretary of this Board or any deputy thereof is hereby authorized to attest to such signature, and such officers are authorized and directed to deliver to the Trustee, for and in the name and on behalf of the Issuer, an amended and restated indenture of trust in substantially such form, with such additions, changes and corrections either of them may approve upon consultation with the Counsel to the Authority and Bond Counsel to the Issuer, such approval to be conclusively evidenced by the execution by such officers of said amended and restated indenture with such additions, changes or corrections. 2. The Amended and Restated Financing Agreement in the forth before this meeting is hereby approved, and the Chair of this Board or any Authorized Officer is hereby authorized and directed to execute, and the Secretary of this Board or any deputy thereof is hereby authorized to attest to such signature, and such officers are authorized and directed to deliver to the Borrower and other parties thereto, for and in the name and on behalf of the Issuer, an amended and restated financing agreement in substantially such form, with such additions, changes and corrections either of them may approve upon consultation with County Counsel and Bond Counsel to the Issuer, such approval to be conclusively evidenced by the execution by such officers of said financing agreement with such additions, changes or corrections. 3. The Second Amendment to Regulatory Agreement in the form before this meeting is hereby approved, and the Chair of this Board or any Authorized officer is hereby authorized and directed to execute, and the Secretary of this Board or any deputy thereof is hereby authorized to attest to such signature, and such officers are authorized and directed to deliver to the Borrower and other parties thereto, for and in the name and on behalf of the Issuer, a regulatory agreement amendment in substantially such form, with such additions, changes and corrections either of them may approve upon consultation with County Counsel and Bond Counsel to the Issuer, such approval to be conclusively evidenced by the execution by such officers of said financing agreement with such additions, changes or corrections. 4. The Intercreditor Agreement in the form before this meeting is hereby approved, and the Chair of this Board or any Authorized officer is hereby authorized and directed to execute, and the Secretary of this Board or any deputy thereof is hereby authorized to attest to such signature, and such officers are authorized and directed to deliver to the Borrower and other parties thereto, for and in the name and on behalf of the Issuer, an intercreditor agreement in substantially such form, with such additions, changes and corrections either of them may approve upon consultation with County Counsel and Bond Counsel to the Issuer, such approval to be conclusively evidenced by the execution by such officers of said financing agreement with such additions, changes or corrections. 5. If the Chair of the Board is unavailable to execute the documents hereinabove mentioned, any Authorized Officer shall be entitled to sign in the place of the Chair of the Board. 6. This Board hereby appoints the County of Contra Costa as administrator/manager of the Program(the "Administrator"). -2- 23oCssF1:679077.2 40521-83 SAS 7. All actions heretofore taken by the officers and agents of the Issuer with respect to the amendment of the Indenture and the amendment of the Financing Agreement are hereby approved, confirmed and ratified, and the proper officers of the Issuer are hereby authorized and directed,for and in the name and on behalf of the Issuer, to do any and all things and tape any and all actions and execute and deliver any and all certificates, agreements and other documents, including but not limited to those described in the Indenture, the Financing Agreement, the Amended.and Restated Indenture of Trust and the Amended and Restated Financing Agreement, which they, or any of them, may deem necessary or advisable in order to consummate the amendment of the Indenture and the amendment of the Financing Agreement in accordance with this resolution and any resolution heretofore adopted by the Issuer and in order to carry out the transactions contemplated by the Indenture, the Financing Agreement, the Amended and Restated Indenture of Trust and the Amended and.Restated Financing Agreement. & All further consents, approvals, notices, orders, requests and other actions permitted or required by the Amended and Restated Indenture of Trust or the Amended and Restated Financing Agreement, including without limitation any of the foregoing which may be necessary or desirable in connection with any default under or further amendment of such documents, any transfer or other disposition of the Project, any substitution of credit enhancement for the Bonds or any redemption of the Bonds, may be given or taken by the Administrator without further authorization by this Board, and the Administrator is hereby authorized and directed to give any such consent, approval, notice, order or request and to take any such action which such officer may deem necessary or desirable to further the purposes of this resolution, the Amended and Restated Indenture of Trust and the Amended and Restated Financing Agreement. 9. All resolutions or parts thereof in conflict herewith are, to the extent of such conflict, hereby repealed. 10. This Resolution shall take effect immediately upon its passage and adoption. ADOPTED this 3rd day of June, 2003, by the allowing vote: AYES: Gioia, Uilketna, Glover and DeS lnier NOES: None ABSTAINING: None ABSENT: None **District III. Seat VACANT** Advisory Horsing Commission Seat VACANT Chair of the Board. of Commissioners Deputy Clerk f� -3- DOCSSF1:679t177.2 40511-83 SAS