HomeMy WebLinkAboutAGR-7917 - WILLDAN ENERGY SOLUTIONS - ENERGY & WATER SAVINGS PERFORMANCE CONTRACTDocusign Envelope ID:FE1C6523-0B20-48A9-A435-9BAECD8B3603
Finkle!AGR-7917
ENERGY AND WATER SAVINGS PERFORMANCE CONTRACT
This Energy [and Water] Savings Performance Contract(together with its attached Schedules and
Exhibits, the "Contract") is made and entered into as of this 10th day of February , 2026 (the
Effective Date"), between Willdan Energy Solutions, a California corporation with California state
contractor's license number 1065713 ("WES"),and City of Orange,a municipal corporation("Customer").
Each of WES and Customer may be referred to in this Contract as a"Party"and collectively as the"Parties."
The purpose of this Contract is for WES to perform an investment grade audit (an "IGA") of the
Customer's property and buildings (the "Premises") [and Customer-owned and/or operated water
distribution infrastructure(the"Infrastructure")];the IGA will form the basis for recommendations,which
WES will present to Customer,for the implementation of energy-[and water-]savings efficiency measures,
or other operating cost saving measures and equipment,as well as energy generation measures[,and/or fee-
producing infrastructure facilities],as described in Schedule A(Scope of Work),with respect to the Premises
and the Infrastructure], and also for estimated program costs and overall potential energy [and water]
consumption savings. The Contract will also set forth the terms and conditions under which WES will
implement recommendations agreed to by Customer,and any other services agreed by WES and Customer,
all of which will be designed to save energy[, water,] or other operating costs at the Premises[ and/or with
respect to the Infrastructure] (collectively,the"Project').
RECITALS
WHEREAS, Customer owns and operates the Premises and the Infrastructure, and is in need of
energy and watersaving equipment and services designed to reduce energy and water consumption and costs
for the Premises and the Infrastructure, as well as improve energy quality and reliability for the Premises
and the Infrastructure;
WHEREAS, WES has made a preliminary assessment of the energy and water consumption
characteristics of the Infrastructure,the Premises,and the existing equipment;
WHEREAS, Customer now desires to retain WES to identify and develop energy efficiency
measures as well as energy generation measures, and/or fee-producing infrastructure facilities, and in
compliance with California Government Code §§4217.10 through 4217.18 and/or California Government
Code §5956, to perform design and engineering work in order to deliver a proposal (the "Proposal")
identifying energy improvements and operational changes (collectively, "ECMs") to be installed or
implemented at the Customer's facilities, and including a pro forma analysis showing that the anticipated
cost to Customer to implement the identified ECMs will be less than the anticipated cost to Customer for
thermal,electrical,and other energy,together with anticipated operational,maintenance and other costs,that
would have been consumed by Customer in the absence of the identified ECMs; and
WHEREAS, if the Proposal is presented, on an arms' length basis,to personnel of Customer with
requisite technical training and experience,for those personnel to make judgments and determinations as to
the desirability of the Proposal, and if the Proposal is deemed satisfactory by the Customer, it is the intent
of the Customer to work with WES to negotiate and approve a Performance Contract Amendment hereto in
the manner provided in California Government Code §4217.10 et seq. in order to procure,construct,install,
and commission such ECMs, as well as to provide other services for the purpose of achieving energy,
water,]and operational savings for the Premises[and the Infrastructure],as more fully set forth herein;and
WHEREAS, Customer is authorized under the laws of the State of California to enter into this
Contract for the purposes set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein,
and intending to be legally bound hereby,Customer and WES hereto covenant and agree as follows:
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SECTION 1 ESPC DOCUMENTS
Section 1.1. The ESPC Documents (hereinafter, "ESPC Documents") consist of the City of
Orange Professional Services Agreement (PSA) incorporated herein by reference, this Contract; other
documents listed in this Contract; and Modifications issued after execution of this Contract. A
Modification" is a written amendment to the Contract (including the Performance Contract Amendment
defined below, and any supplemental Scope of Work and Energy Savings Guarantee subject to this
Contract), signed by both Parties. A change order is a Modification. The order of precedence for the ESPC
Documents shall be:
a) City of Orange Professional Services Agreement
b) this Contract
c) other documents listed in this Contract
d) Modifications
Section 1.2. The ESPC Documents represent the entire and integrated agreement between the
Parties and supersede prior negotiations,representations,or agreements,either written or oral.The Contract
may be amended or modified only by a Modification.The ESPC Documents shall not be construed to create
a contractual relationship of any kind between any persons or entities other than the Customer and WES.
Section 1.3. In accordance with California Government Code §1097.6(c)(1),WES's duties and
services under this Contract shall not include preparing or assisting Customer with any portion of Customer's
preparation of a request for proposals, request for qualifications, or any other solicitation regarding a
subsequent or additional contract with Customer. Customer shall at all times retain responsibility for public
contracting, including with respect to any subsequent phase of this Project. WES's participation in the
planning,discussions,or drawing of project plans or specifications for any subsequent or additional contract
shall be limited to conceptual, preliminary, or initial plans or specifications. WES shall cooperate with
Customer to ensure that bidders (if Customer elects to utilize a bidding process) for a subsequent contract
on any subsequent phase of this Project have access to the same information, including all conceptual,
preliminary,or initial plans or specifications prepared by WES pursuant to this Contract.
Section 1.4. Schedules and Exhibits. WES has prepared, and Customer has approved and
accepted,the Exhibits and Schedules set forth below,copies of which are attached hereto and made part of
this Contract by reference.
SCHEDULES
Schedule A Scope of Work
Schedule B Compensation to WES
EXHIBITS
Exhibit 1 Form of Performance Contract Amendment,including the following Schedules(the
Performance Contract Amendment"):
Schedule 1-A Additional Responsibilities
Schedule 1-B Certificate of Substantial Completion
Schedule 1-C Certificate of Acceptance—Final Completion
Exhibit 2 Form of Energy and Water Savings Guarantee, including the following Schedules
the"Energy[and Water]Savings Guarantee"):
Schedule 2-A Baseline Energy and Water Consumption
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Schedule 2-B Savings Measurement & Calculation Formulae; Methodology to Adjust
Baseline
Exhibit 3 Form of Assured Performance Guarantee—Utility Meters
SECTION 2 THE WORK
Section 2.1. The term "Work" means the investigation, design, engineering, construction,
installation, commissioning and related services required to fulfill WES's obligations under the ESPC
Documents, whether completed or partially completed, and includes all labor, materials, equipment, and
services provided or to be provided by WES.
Section 2.2. WES will fully execute the Work described in the ESPC Documents,except to the
extent specifically indicated in the ESPC Documents to be the responsibility of others.
Section 2.3. WES will perform all Work through sub-contractors or through WES's own forces.
Section 2.4. WES will perform the Work in accordance with sound engineering and safety
practices, in compliance with any and all reasonable rules of Customer relative to the Premises, and in
compliance with applicable laws,statutes,ordinances,codes,rules and regulations,or lawful orders of public
authorities in effect on the Effective Date or the date of a Modification, as applicable. If WES performs
Work contrary to applicable laws, statutes, ordinances, codes, rules and regulations, and lawful orders of
public authorities, WES will assume responsibility for such Work and will bear the costs attributable to
correction.
SECTION 3 PHASES OF THE WORK
Section 3.1. The Work will be performed in phases,including:the IGA Phase,the Construction
Phase (and construction of any additional phases pursuant to a supplemental Scope of Work or
Modification), and the corresponding Energy and Water Savings Guarantee Phase, each as outlined in the
applicable Scope of Work or Modification.
a) The IGA Phase will commence on the Effective Date.
b) The Construction Phase will commence upon the issuance of a formal Notice to
Proceed (NTP) following the execution of a Performance Contract Amendment in the form of Exhibit 1,
following the conclusion of the IGA Phase.
c) The Guarantee Phase for any Scope of Work or Modification will commence upon
the execution of an Energy and Water Savings Guarantee in the form of Exhibit 2, and an Assured
Performance Guarantee in the form of Exhibit 3 for such Scope of Work or Modification, following the
execution of the Certificate of Acceptance—Final Completion in the form of Schedule 1-C corresponding
to such Scope of Work or Modification.
Section 3.2. The Scope of Work for each phase of the Work will be defined in the applicable
Schedule A(Scope of Work) (the"Scope of Work").The fee for each phase of the Work will be defined in
the applicable Schedule B(Compensation to WES)(the"Compensation Schedule").
SECTION 4 FEES FOR THE WORK;PAYMENTS
Section 4.1. Customer will pay WES for the performance of the Work in accordance with the
Compensation Schedule.
Section 4.2. Billing Information Procedure.Payments due to WES will be calculated each month
and paid in accordance with the Compensation Schedule.
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Section 4.3. Payment. Customer shall pay WES within thirty (30) days of receipt of WES's
application for payment. Amounts unpaid thirty(30) days after the invoice date shall bear interest at 1.5%
per month.
SECTION 5 FISCAL FUNDING
Section 5.1. Non-appropriation of Funds. In the event no Customer funds (or other funds), or
insufficient Customer funds (or other funds), are appropriated and budgeted for any future fiscal period in
which payment will be due to WES under this Contract, and funds are otherwise unavailable by any means
whatsoever in such future fiscal period, then the Customer will, not less than thirty (30) days prior to the
beginning of such future fiscal period, notify WES in writing of such occurrence, and this Contract will
terminate on the last day of the fiscal period for which appropriations were made,without penalty or expense
to the Customer of any kind whatsoever, except as to the portions of payments herein agreed, for which
Customer funds and/or other funds will have been appropriated and budgeted or are otherwise available.
SECTION 6 ENERGY AND WATER USAGE RECORDS AND DATA
Section 6.1. Customer has furnished or will furnish (or cause its energy and water suppliers to
furnish)to WES,upon its request,all of Customer's records and complete data concerning energy and water
usage and energy and water related maintenance for the Premises,including the following data for the most
current twenty-six (26)month period: utility records; occupancy information; descriptions of any changes
in the building structure or its heating, cooling, lighting, water, or other systems or energy and water
requirements; descriptions of all energy and water consuming or saving equipment used in the Premises;
bills and records relating to maintenance of energy and water related equipment,and a description of energy
and water management procedures presently utilized. If requested, Customer will also provide any prior
energy and water audits of the Premises, and copies of Customer's financial statements and records related
to energy and water usage and operations for the most current twenty-six(26)month period at the Premises
and will make agents and employees familiar with such records available for consultations and discussions
with WES.
SECTION 7 REPRESENTATIONS AND WARRANTIES
Section 7.1. Each Party warrants and represents to the other that:
a) it has all requisite power, authority, licenses,permits, and franchises, corporate or
otherwise,to execute and deliver this Contract and perform its obligations hereunder;
b) its execution,delivery,and performance of this Contract have been duly authorized
by,or are in accordance with,its organic instruments,and this Contract has been duly executed and delivered
for it by the signatories so authorized,and constitutes its legal,valid,and binding obligation;
c) its execution,delivery,and performance of this Contract will not breach or violate,
or constitute a default under any Contract, lease or instrument to which it is a party or by which it or its
properties may be bound or affected; and
d) it has not received any notice,nor to the best of its knowledge, is there pending or
threatened any notice, of any violation of any applicable laws, ordinances, regulations, rules, decrees,
awards,permits or orders which would materially and adversely affect its ability to perform hereunder.
SECTION 8 ADDITIONAL REPRESENTATIONS OF THE PARTIES
Section 8.1. Customer hereby warrants, represents and promises that it has provided, or will
provide timely, to WES all records relating to energy and water usage and energy and waterrelated
maintenance of the Premises requested by WES and the information set forth therein is,and all information
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in other records to be subsequently provided pursuant to this Contract will be,true and accurate in all material
respects.
Section 8.2. WES hereby warrants,represents and promises that:
a) it is properly qualified, licensed and equipped to supply and perform the Work in
the State of California;
b) it will make available, upon reasonable request, all documents relating to its
performance under this Contract,including all contracts and subcontracts entered into;
c) it will use qualified subcontractors and delegates,appropriately registered,licensed
and bonded in this state,to perform the Work so subcontracted or delegated pursuant to the terms hereof;
d) it is financially solvent, able to pay its debts as they mature and possessed of
sufficient working capital to complete the Work and perform its obligations under this Contract.
SECTION 9 PERFORMANCE BY WES
Section 9.1. WES will perform all tasks/phases under the Contract,including the IGA Phase and
the Construction Phase, in such a manner so as not to harm the structural integrity of the buildings or their
operating systems.WES will repair and restore to its original condition any area of damage caused by WES's
performance under this Contract.Customer reserves the right to review the Work performed by WES and to
direct WES to take certain corrective action if, in the reasonable opinion of the Customer, the structural
integrity of the Premises or its operating system is or will be harmed. All costs associated with such
corrective action to damage caused by WES's performance of the Work will be borne by WES.
Section 9.2. WES will remain responsible for the professional and technical accuracy of all
Work performed,whether by WES or its subcontractors or others on its behalf,throughout the term of this
Contract.
Section 9.3. Prior to commencing Work under this Contract, WES will furnish a performance
bond, in an amount equal to one hundred percent (100%) of the Construction Phase Contract Sum, and a
payment bond to guarantee payment of all claims for labor and materials furnished, in an amount equal to
one hundred percent(100%)of the Construction Phase Contract Sum(collectively,the"Contract Bonds").
The Contract Bonds are not being furnished to cover the performance of any energy guaranty or guaranteed
savings under this Contract, nor to cover any equipment and/or material manufacturer's warranty or other
third-party warranty being assigned to Customer. No Construction Phase Work shall commence until the
City has received and approved all required performance and payment bonds.
Section 9.4. WES and each of its Subcontractors shall,at no additional cost to Customer,comply
with all applicable provisions of the California Labor Code and the regulations promulgated thereunder
collectively,the"Labor Laws").To the extent required by California Labor Code§1771 or other applicable
law,all employees of WES and WES's subcontractors performing Work at the Premises will be paid the per
diem prevailing wages for the employee's job classification in the locality in which the Work is performed.
In accordance with California Labor Code §§1773 and 1773.2, Customer will obtain from the Director of
Industrial Relations the general prevailing rate of per diem wages and the general prevailing rate for holiday
and overtime work,in the locality in which the Work is to be performed,for each craft,classification or type
of worker needed to execute the Work at the Premises, and will cause copies of such determinations to be
kept on file at its principal office. WES must post a copy at the Premises. Customer will promptly notify
WES of any changes to any such prevailing wage determination.
Section 9.5. WES will assist Customer in the preparation and submission to the applicable
agencies of applications and documentation necessary for mutually agreed energy efficiency rebate,
incentive, and/or loan program(s). WES makes no guarantee that Customer will receive funding from any
energy efficiency rebate,incentive,and/or loan program(s)(collectively,"Incentive Funds"),or any portion
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thereof;WES expressly disclaims any liability for Customer's failure to receive any portion of the Incentive
Funds, and Customer acknowledges and agrees that WES will have no liability for any failure to receive all
or any portion of the Incentive Funds.Procurement,or lack thereof,of the Incentive Funds will not alter the
Contract Price of this Contract or the payment timeline associated with payment of the Contract Price.Any
and all rebate deposits paid by WES will be immediately returned to WES when received by Customer.
SECTION 10 OWNERSHIP
Section 10.1. Ownership of Certain Proprietary Property Rights. All reports, studies, designs,
plans, specifications,drawings,calculations,data,models,and other work product prepared or produced by
WES under this Contract, including all Instruments of Service, shall be the property of the City. The City
may use,reproduce,modify,and reuse such materials for any City purpose without restriction.WES retains
a non-exclusive license to reuse its standard details,know-how,and professional methodologies that do not
disclose City confidential information. Any indemnification or release of WES arising from the City's use
of the Instruments of Service is expressly deleted. If Customer uses the Instruments of Service for
implementation purposes,including additions to or completion of the Project,without the written permission
of WES,Customer agrees to waive and release,and indemnify and hold harmless, WES,its subcontractors,
and their directors, employees, subcontractors, and agents from any and all claims, losses, and other
liabilities associated with or resulting from such use.
SECTION 11 INDEMNIFICATION
Section 11.1. WES shall defend, indemnify, and hold harmless the City of Orange, its officers,
officials, employees, and agents from and against any and all claims, demands, actions, damages, losses,
liabilities, costs, and expenses, including attorneys' fees, arising out of, pertaining to, or relating to the
performance of the Work under this Contract, except to the extent caused by the sole negligence or willful
misconduct of the City. This obligation is intended to comply with California Civil Code sections 2778 and
2782 and shall survive termination of the Contract.The liability of a defaulting Party will be limited to direct,
actual damages. Neither Party shall be liable to the other Party for any special, indirect, incidental or
consequential damages whatsoever, whether in contract, tort (including negligence) or strict liability,
including,but not limited to,operational losses in the performance of business such as lost profits or revenues
or any increase in operating expense.
SECTION 12 CONDITIONS BEYOND CONTROL OF THE PARTIES
Section 12.1. WES shall notify Customer in writing immediately of any delay or anticipated delay
in WES's performance of this Contract due to causes or circumstances beyond the reasonable control of
WES. Notice shall include the reason for and anticipated length of the delay, and the date of performance
shall be extended for a period equal to the time lost by reason of the delay.Any extension of time or increase
in Contract Price pursuant to this Section 12.1 shall be documented by a Modification signed by the Parties.
Examples of such possibly excusable delays are natural calamities,strikes and boycotts,war or civil unrest,
delay or inability to secure products,parts,materials,fuel,supplies,equipment or power at reasonable prices
or in sufficient amounts through usual sources of supply, or governmental actions, a change in Applicable
Law, the implementation or proposed implementation of new tariffs or modification of existing tariffs that
increase WES's cost of materials and equipment,regional labor escalation or shortages other events that are
commonly deemed force majeure events.These are events that could not have been reasonably foreseen and
estimated at the establishment of the Contract Price provided that such events occur after the establishment
of the Contract Price,are not within WES's reasonable control,and could not have been avoided or mitigated
through the exercise of reasonable skill and care.Force majeure events may justify an extension of Contract
Time only.No increase in the Contract Sum is permitted absent a written Modification approved by the City
in accordance with applicable law.
Section 12.2. EVENTS OF DEFAULT
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Section 12.3. Events of Default by Customer. Each of the following events or conditions will
constitute a"Customer Event of Default":
a) any failure by Customer to pay any undisputed amount within thirty(30)days after
written notice and an opportunity to cure ; or
b) any other material failure by Customer to perform or comply with the terms and
conditions of this Contract, including breach of any covenant contained herein,provided that such failure
continues for thirty(30)days after notice to Customer demanding that such failures to perform be cured,or
if such cure cannot be effected in thirty(30)days, Customer will not be in default if Customer commences
a cure within such thirty(30)day period and diligently pursues completion thereof;or
c) any representation or warranty furnished by Customer in this Contract was false or
misleading in any material respect when made.
Section 12.4. Events of Default by WES. Each of the following events or conditions will
constitute a"WES Event ofDefault":
a) any failure by WES to meet the standards of comfort and service set forth in
Schedule 1-A-3 due to failure by WES to properly design, install,maintain,repair or adjust the Equipment;
provided that such failure continues for thirty(30)days after notice to WES demanding that such standards
be met, or if such failure cannot be cured within thirty (30) days, WES will not be in default if WES
commences a cure within such thirty(30)day period and diligently pursues completion thereof.
b) any other material failure by WES to perform or comply with the terms and
conditions of this Contract, including breach of any covenant contained herein,provided that such failure
continues for thirty (30) days after notice to WES demanding that such failures to perform be cured, or if
such cure cannot be effected in thirty(30)days,WES will not be in default if WES commences a cure within
such thirty(30)day period and diligently pursues completion thereof;
c) any representation or warranty furnished by WES in this Contract was false or
misleading in any material respect when made; or
d) the filing of a bankruptcy petition, whether by WES or its creditors against WES,
which proceeding has not been dismissed within sixty(60) days of its filing,or an involuntary assignment
for the benefit of all creditors or the liquidation of WES.
SECTION 13 CLAIMS AND DISPUTE RESOLUTION.
Section 13.1. Informal Process. All disputes will first be submitted to the individuals listed in
Section 21 for resolution.
Section 13.2. Claims Process Under Public Contract Code. In the event that a remedy acceptable
to both Customer and WES cannot be found pursuant to Section 13.1, WES may commence the dispute
resolution process set forth in California Public Contract Code §9204 et seq., which can be summarized as
follows (the following is a summary only and is not intended to modify in any way the requirements and
timeframes set forth in the statute):
a) A "claim" means a separate demand by a contractor for one or more of the
following: (i)a time extension,including,without limitation,for relief from damages or penalties for delay
assessed by a public entity under a contract for a public works project; (ii)payment by the public entity of
money or damages arising from work done by,or on behalf of,the contractor pursuant to the contract for a
public works project and payment for which is not otherwise expressly provided or to which the claimant is
not otherwise entitled; and (iii) payment of an amount that is disputed by the public entity. The claimant
shall furnish reasonable documentation to support the claim.
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b) Upon receipt of a claim, the public entity shall conduct a reasonable review of the
claim and shall provide the claimant a written statement identifying what portion of the claim is disputed
and what portion is undisputed. If the claimant disputes the public entity's written response,or if the public
entity fails to respond to a claim within the time prescribed by statute,the claimant may demand in writing
an informal conference to meet and confer for settlement of the issues in dispute.
c) Following the conclusion of the meet and confer conference, if the claim or any
portion of the claim remains in dispute, the public entity shall provide the claimant a written statement
identifying the portion of the claim that remains in dispute and the portion that is undisputed.Any payment
due on an undisputed portion of the claim shall be processed and made in accordance with the statute. Any
disputed portion of the claim, as identified by the contractor in writing, shall be submitted to nonbinding
mediation,with the public entity and the claimant sharing the associated costs equally.
d) Cure periods applicable to WES shall be no shorter than those applicable to
Customer,and shall be extended where cure is being diligently pursued.
Section 13.3. Notwithstanding the foregoing, upon receipt of a claim, the parties may mutually
agree to waive, in writing, mediation and proceed directly to the commencement of binding arbitration, as
set forth in Section 13.3.Arbitration.Customer and WES agree that if the claim or dispute cannot be resolved
by the process set forth in Public Contract Code§9204 et seq.and summarized in Section 13.2,the exclusive
means to resolve the claim or dispute will be arbitration pursuant to Public Contract Code §10240 et seq.,
and the provisions of Public Contract Code §20104 et seq. shall not apply. Notwithstanding any other
provision of law,arbitrators appointed for purposes of this Section 13.3 shall be experienced in construction
law and shall be paid necessary and reasonable hourly rates not to exceed their customary rate. Such fees
and expenses shall be paid equally by the parties, except where the arbitrator, for good cause,determines a
different division.
Section 13.4. Multiparty Proceeding. Either Party may join third parties whose joinder would
facilitate complete resolution of the dispute and matters arising from the resolution of the dispute.
SECTION 14 LIENS
Section 14.1. WES will promptly pay, when due, all amounts payable for labor and materials
furnished in the performance of this Contract and will endeavor to prevent any lien or other claim from
arising against any Customer property,against WES's rights to payments hereunder,or against Customer.
SECTION 15 INDEPENDENT CAPACITY OF THE CONTRACTOR
Section 15.1. The Parties hereto agree that WES,and any agents and employees of WES,is acting
in an independent capacity in the performance of this Contract,and not as a public official,officer,employee,
consultant,or agent of Customer for purposes of conflict of interest laws or any other applicable law.
SECTION 16 NO WAIVER
Section 16.1. The failure of WES or Customer to insist upon the strict performance of the terms
and conditions hereof shall not constitute or be construed as a waiver or relinquishment of either Party's
right to thereafter enforce the same in accordance with this Contract in the event of a continuing or
subsequent default on the part of WES or Customer.
SECTION 17 SEVERABILITY
Section 17.1. In the event that any clause or provision of this Contract or any part thereof is
declared invalid,void,or unenforceable by any court having jurisdiction, such invalidity shall not affect the
validity or enforceability of the remaining portions of this Contract unless the result would be manifestly
inequitable or unconscionable.
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SECTION 18 COMPLETE AGREEMENT
Section 18.1. This Contract, when executed, together with all Exhibits and Schedules attached
hereto or to be attached hereto,as provided for by this Contract,shall constitute the entire agreement between
the Parties and this Contract may not be amended,modified,or terminated except by a written Modification
signed by the Parties hereto. The Parties may terminate this Contract for convenience upon written notice.
In the event of such termination, WES shall be compensated only for Work satisfactorily performed to the
effective date of termination, as determined by the City, and shall have no entitlement to lost profits or
unperformed work.
SECTION 19 FURTHER ASSURANCES
Section 19.1. The Parties shall execute and deliver all documents and perform all further acts that
may be reasonably necessary to effectuate the provisions of this Contract.
SECTION 20 APPLICABLE LAW
Section 20.1. This Contract and the construction and enforceability thereof shall be interpreted
under the laws of the State of California.
SECTION 21 NOTICE
Section 21.1. Any notice required or permitted hereunder will be deemed sufficient if given in
writing and delivered personally or sent by registered or certified mail, return receipt requested, postage
prepaid, or delivered to a nationally recognized express mail service, charges prepaid, receipt obtained, to
the address shown below or to such other persons or addresses as are specified by similar notice.
TO WES: TO CUSTOMER:
Willdan Energy Solutions City of Orange
Attention: Colton Gorman Attention: Jack Morgan
2401 East Katella Avenue, Suite 300 300 E. Chapman Avenue
Anaheim,CA 92806 Orange,CA 92866
SECTION 22 HEADINGS
Section 22.1. Headings and subtitles used throughout this Contract are for the purpose of
convenience only, and no heading or subtitle will modify or be used to interpret the text of any section.
SECTION 23 INSURANCE
Section 23.1. WES shall procure and maintain in effect insurance coverage in amounts not less
than the following.
a) Workers' Compensation and Employer's Liability Insurance with limits of not less
than$1,000,000 per occurrence.
b) Commercial General Liability Insurance for personal and bodily injury, including
death,and property damage with limits not less than$1,000,000 combined single limit each occurrence and
2,000,000 general aggregate.
c) Automobile Liability Insurance for personal and bodily injury,including death and
property damage in the amount of not less than$1,000,000 per occurrence.
d) Professional Liability Insurance for damages incurred by reason of any negligent
act, error or omission committed by WES in performing professional services with limits of not less than
1,000,000 per claim and$2,000,000 annual aggregate.
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e) Builders All-Risk Insurance:WES,at Customer's expense,shall maintain"All Risk
Insurance"for all Equipment, and property obtained by or for WES which is to become a part of the work
while such Equipment and property is stored at the job site,at temporary locations,or while in transit to the
Project from such temporary locations. WES shall also be responsible for insuring Subcontractors' owned,
rented, or borrowed equipment.
f) WES will require each Subcontractor to maintain such levels and types of insurance
coverage as are appropriate for the Work to be performed by such Subcontractor.
Section 23.2. WES will provide Customer with certificates of insurance evidencing coverage
required above.Each certificate will provide that the coverage may not be canceled except with at least thirty
30) days prior written notice to Customer, ten (10) days' notice if cancellation is due to nonpayment of
premium. Should this occur, WES will procure and furnish to Customer, prior to such effective date, new
certificates conforming to the above coverage requirement.
Section 23.3. Additional Insured. Commercial General Liability and Automobile Liability
policies shall name the City of Orange,its City Council,officers,officials,employees,agents,and volunteers
as additional insureds for ongoing and completed operations using ISO CG 20 10(or equivalent),CG 20 37
or equivalent),and CA 20 48(or equivalent).
Section 23.4. Primary and Non-Contributory.All insurance required of WES shall be primary to,
and shall not seek contribution from,any insurance or self-insurance maintained by the City.
Section 23.5. Waiver of Subrogation. All required policies shall include a waiver of subrogation
in favor of the City to the extent permitted by law.
Section 23.6. Insurer Qualifications. All insurers shall be admitted in the State of California and
rated not less than A-:VII by A.M.Best.
Section 23.7. Endorsements.Certificates of insurance are for informational purposes only and do
not modify coverage. Upon request, WES shall provide the City with copies of the required additional
insured endorsements and endorsements evidencing primary and non-contributory coverage.
SECTION 24 EPACT 179D
Section 24.1. To encourage the implementation of a more energy-efficient system, Section 179D
of the Internal Revenue Code provides for the allocation of a tax deduction based on the efficiency of the
design. Since a public entity is exempt from paying taxes,the Internal Revenue Code permits this allocation
to be passed along to the designer of the system as an additional incentive to incorporate the most efficient
system affordable.Accordingly,once the building/system is placed into service,it is understood and agreed
that the tax deduction granted pursuant to Section 179D of the Internal Revenue Code will be allocated to
WES, in consideration of which WES intends to maximize the energy efficiency of the design being
contracted.
Remainder ofpage intentionally blank]
IWILLDAN I Master Multi-Phase Energy and Water Performance Contract I Page 10
JROBERTSON 38580.00001\5213622.2
Docusign Envelope ID:FE1C6523-01320-48A9-A435-9BAECD8B3603
IN WITNESS WHEREOF, and intending to be legally bound, the Parties hereto subscribe their
names to this Contract by their duly authorized officers as of the Effective Date.
WES CUSTOMER
Signed by: r—DocuSigned by:
Signed S gcLartioo n
Signed '/ut't l'
80BB75709C2147F... 02D88BJ77A20417...
Name Sharath Acharya Name Daniel R. Slater
Title Vice President of Engineering Title Mayor
ATTEST:
Signed by:
DEUCDozer43A...
Pamela Coleman, City Clerk
APPROVED AS TO FORM:
DocuSigned by:
Lc
NathU"4U/U U /04tlq...
ialie t ourian, City Attorney -Ni
WILLDAN I Master Multi-Phase Energy and Water Performance Contract 1 Page l I
JROB ERTSOM38580.0000I\5 213622.2