REQUEST FOR PROPOSALS
FOR
PHOTOVOLTAIC SYSTEM
REQUEST FOR PROPOSALS NO: 7000135018
ISSUED: October 27, 2015
PR # 10483675
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Table of Contents
Request for Proposals (RFP) Overview
Key Terms
Preparation
Minimum Qualification for Prospective Offerors
A.
B.
C.
D.
General
Qualifying Factors
Additional Information to be Submitted
Rejection of Proposal
Exhibit A – Proposed Contract (with exhibits)
Exhibit 1 – Data Security Addendum
Exhibit 2 – Minimum Insurance Requirements
Exhibit 3 – CPS Energy Security Policies
Exhibit 4 – Statement of Work
Exhibit 5 – Military Base Subcontractor Addendum
Exhibit B - Proposal
Exhibit C – Contractor Employee Data Form
Exhibit D – CPS Energy Business Questionnaire
Exhibit E – CPS Energy Subcontracting Documents
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REQUEST FOR PROPOSALS (RFP) OVERVIEW
CPS Energy is interested in acquiring a Contractor(s) to provide a Photovoltaic System
(“PV System”) at CPS Energy’s Microgrid Site (a building at Joint Base San Antonio,
Fort Sam Houston – a military installation of the United States Department of Defense). The gridtied PV System will offset baseload during peak periods and, if possible, supplement part of the load
when disconnected from the grid.
This document provides specifications and requirements to serve as a guide to Offerors for use in
formulating their Proposals. Services to be performed by the firm shall be as specified in Exhibit 4
to the proposed contract attached herein. CPS Energy is interested in a company(s) whose primary
business concerns, qualifications, technical competence and specialized experience indicate its ability
and willingness to satisfactorily perform these Services.
There will be NO a pre-Proposal meeting for this solicitation. Any questions that Offerors have shall
be submitted by Karen T. Smith, at KTSmith@CPSEnergy.com, no later than noon, on
November 4, 2015. No questions will be addressed via telephone.
Offerors shall prepare and submit:

Two (2) identical sealed printed copies and

Two (2) identical electronic copies (flash drives) of their Proposal.
Each Proposal shall contain a complete copy of this document and required supplemental data.
Proposals that are not prepared and submitted in accordance with these instructions will be considered
irregular and may be rejected at the discretion of CPS Energy. Proposals shall be submitted in sealed
boxes or packages each endorsed on the outside with the Offeror’s name and the CPS Energy Request
for Proposal Name and Number.
In general, Proposal deliveries are accepted Monday through Friday, from 7:00 am (CST) to 5:00 pm
(CST).
Two (2) sets of sealed Proposals for this Solicitation, as described above, are due to CPS Energy,
Supply Chain no later than 2:00 p.m. (central) on November 6, 2015.
Two (2) sets of sealed Proposals shall be mailed or delivered to:
Attention: Procurement Analyst, Karen T. Smith
CPS Energy
145 Navarro Street, Mail Drop: 110901
San Antonio, Texas, 78205, or
P.O. Box 2906, San Antonio, Texas 78299-2906
CPS Energy reserves not only the right to reject any and all Proposals and to waive minor formalities
and irregularities, but also the right to evaluate the Proposals to determine which, in its judgment,
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represents the best value proposal for the Services requested. In evaluating Proposals, at
CPS Energy’s discretion, CPS Energy will give weight and importance to the evaluation criteria listed
below which are listed in order of importance:








General Contractor Qualifications, References and Experience
Project Schedule
Pricing
Safety
Experience with CPS Energy
Compliance with Terms and Specification of this Request for Proposals
Subcontractor Qualifications and Experience
Economic Development
CPS Energy will initially evaluate all Proposals based upon evaluation criteria found in the RFP or
as further clarified throughout the evaluation process. Based on CPS Energy’s initial evaluation of
Offeror Proposals, CPS Energy may make a final decision for award or may prepare a short list of
apparent qualified Offerors who will be asked to conduct initial presentations of the services offered
and demonstrations for discussion, evaluation, and clarification. Following this evaluation and
clarification, CPS Energy will select one or more potential Offerors as candidates for a contract
award. During this period, CPS Energy will enter into discussions and negotiations with each shortlisted Offeror after which each may be required to prepare a “Best and Final” offer to the Proposal.
During the solicitation period, Karen T. Smith shall be the sole contact for any inquiries from
Offerors. Any inquiries from Offerors shall be submitted in writing by electronic mail to Karen T.
Smith at KTSmith@cpsenergy.com. Offerors are prohibited from communicating with
CPS Energy staff (other than Karen T. Smith in the above-described manner), or Board
Members regarding this solicitation during the period in which submittals have been solicited
or are being evaluated, with the exception of pre-submittal meetings open to all Offerors or
responses to questions posed during interviews scheduled after responses are received and
opened. Violation of this provision by Offerors and/or their agents may lead to disqualification
of Offeror’s submittal from consideration.
Offerors may be requested to give an on-site presentation of their qualifications and provide further
information of previous projects, if needed, to assist CPS Energy in the evaluation process of the
Offeror’s qualification submittals.
It is agreed that the Contract between CPS Energy and the successful Offeror(s) shall not come
into existence until the actual signing of the Contract by both parties and issuance of a Purchase
Order.
Any action taken to award the Contract and Agreement by CPS Energy may be subject to approval
by the CPS Energy Board of Trustees and will not be final until such approval process has been
completed. No payment can be made for action taken or work started prior to the award of the
agreement.
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KEY TERMS
Term
Contractor
Contractor Employee
CPS Energy or
Owner
CPS Energy
Representatives
Documentation
Inspector / Field
Representative
Offeror
Procurement Analyst
Subcontractor
The Work / Services
Whenever in these
Contract Documents
the words:
 as ordered
 as directed
 as required
 as permitted
 as allowed
or words or phrases of
like import are used,
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Definition
Means the corporation, company, partnership, firm, or individual named
and designated in the Contract as the “Party of the Second Part,” who has
entered into this Contract for the performance of the Work covered
thereby, and its, his, hers, or their duly authorized representatives.
Means the employee of the Contractor that provides Work.
Means the City of San Antonio, acting through the City Public Service
Board of San Antonio, Texas, a Municipal Board of the City of San
Antonio, Texas, named and designated in the Contract as “Party of the
First Part,” and its duly authorized agents.
Shall include engineers, inspectors, examiners, checkers or other
representatives of CPS Energy, whether in direct employ of CPS Energy
or retained on a service basis.
Means Company’s written documentation provided in connection with a
Product that describes the functions and features of the Product, including
user guides and manuals, information describing technical functionality
and specifications, and related information that Supplier provides to its
customers generally in connection with the Products that are the subject
matter of this RFP and related Agreement, whether in print, web based,
or other electronic form, all as they may be updated from time to time.
Means the CPS Energy employee or a contracted inspector (designee)
who shall examine the Work performed for compliance with the Contract
documents and who is in charge of oversight and performance of the
Work under this Contract.
Means any person, firm, corporation, joint venture, or consortium
responding to the RFP or their authorized representatives.
Means the CPS Energy employee that facilitates the Request for Proposal
process.
Means and refer only to a corporation, partnership, or individual having a
direct contract with the Contractor to furnish installation labor, or labor
and materials, required for a particular segment of the Work..
Means the equipment, supplies, materials, labor and services to be
furnished under the Contract and the carrying out of all obligations
imposed by the Contract Documents.
It shall be understood that the order, direction, requirement, permission,
or allowance of CPS Energy is intended only to the extent of judging
compliance with the terms of the Contract; none of these terms shall
imply CPS Energy has any authority or responsibility for supervision of
the Contractor's forces or construction operations, such supervision and
the sole responsibility therefore being strictly reserved for the
Contractor.
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Term
Whenever in these
Contract Documents
the words:
Definition
Unless otherwise particularly specified herein, shall mean approved,
reasonable, suitable, acceptable, proper, or satisfactory in the judgment
of CPS Energy.
 approved
 reasonable
 suitable
 acceptable
 proper
 satisfactory
or words of like effect
and import
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PREPARATION
To expedite and simplify Proposal evaluation and to assure that each Proposal receives the same
orderly review, all Proposals shall adhere to the format and specifications described in this Section:
a)
All the elements of information specified must be included without exception.
b)
Sections and pages shall be appropriately numbered and ordered.
c)
A Table of Contents listing all sections, figures and tables must be included.
d)
Labeled index tabs shall separate major sections and appendices.
e)
Microsoft Version Word Office 2003 or later needs to be used for the digital copy.
f)
Quoted rates/fees will be assumed to include all goods and services (PV System
installation) requirements that are outlined in Offeror’s Proposal unless otherwise
specifically noted.
g)
The name, title, address, telephone number and email address of the individual with
authority to contractually bind the Offeror.
h)
Using identical Proposal forms as specified herein, the Proposal must be carefully
prepared and bound herewith.
i)
Proposals shall define in detail any deviations from the RFP. All cost information,
exceptions, clarifications, and advantages shall be defined in detail. Any and all
variances or exceptions taken to the Contract Documents must be specifically noted.
CPS Energy assumes no liability or responsibility for the costs incurred by the Offeror for any
materials, efforts or expenses required in the preparation of Proposals or in connection with
presentations or demonstrations prior to the issuance of a Contract.
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MINIMUM QUALIFICATIONS FOR PROSPECTIVE OFFERORS
A.
GENERAL
Each Offeror shall submit information with its Proposal for CPS Energy’s use in evaluating the
Offeror’s qualifications and Offeror’s ability to satisfactorily perform the services requested.
Proposals submitted by Offerors not meeting the minimum qualifications are subject to rejection.
CPS Energy reserves the right to make any and all of the requested information part of the Contract
Documents if the Offeror’s Proposal is accepted. Any changes or substitutions shall be made only
with the written acceptance of CPS Energy and such change or substitution shall not be cause for
additional financial compensation nor shall it invalidate the Contract in any way.
B.
QUALIFYING FACTORS
The following factors shall be considered to be the minimum qualifications for Offerors providing a
Proposal to CPS Energy. Provide the following in your Proposal:
1. A description of the Offering firm’s operational history which reflects that the Offeror has
been actively engaged for a minimum of three (3) consecutive years as a Photovoltaic
Contractor capable of performing electrical work as described in Exhibit 4, “Statement of
Work.” In addition, please list any prior experience with CPS Energy.
2. A list of three (3) verifiable references, for systems larger than 5kWac, for work performed
within the last twelve (12) months. This information should include Company name, mailing
address, e-mail address, contact person’s name and phone number. A brief description of the
services performed by the Offeror as a PV System installer capable of performing work as
described in Exhibit 4 “Statement of Work” shall accompany each of the references submitted.
3. A statement that the Offeror and Offeror’s personnel are licensed for the duration of this
Contract. Offeror shall submit licenses documentation with its Proposal.
4. Documentation that Offeror’s company has a NABCEP Certified Professional employed at
all times. Offeror must provide a copy of the current NABCEP Certification of the
professionals that will be working on this Contract. The Offeror’s licensed personnel will not
be allowed to perform Services on electrical facilities with expired licenses.
5. Documentation that Offeror’s company has a Master Electrician of Record employed at all
times. Offeror must provide a copy of the current Master Electrician of Record license and
current licenses of all journeymen electricians that will be working on this Contract. The
Offeror’s licensed personnel will not be allowed to perform Services on electrical facilities
with expired licenses.
6. An electronic mail address (e-mail) and/or 24-hour communication accessibility (i.e. pager,
cell phone, fax or answering service). Offeror’s e-mail system must have a minimum of six
(6) megabytes of capacity and attachment capability. Offeror must provide a statement that it
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meets the previous qualifications stated above. Furthermore, Offeror must provide
CPS Energy with all contact names, numbers, and e-mail addresses.
7. The Offeror shall provide its firm’s safety information as follows:
a. On NCCI letterhead annual statement of worker’s compensation Experience
Modification Rating (EMR) for the most recent three (3) years. Offeror’s with an
average rating of >1.30 will not be considered for award.
b. Provide the Year-To-Date OSHA Recordable Injury Rate (RIR) and the U.S. Bureau
of Labor Statistics (BLS) SIC Code RIR average for their industry.
c. The OSHA Citation History for the past three (3) Years. Offeror will not be considered
for award should history reflect any “Willful” OSHA citations. Additionally, submit
OSHA 300 & 300 (A) injury / illness logs for the past (3) calendar years.
d. A statement of Offeror’s ability to provide a Safety Professional that: 1) has completed
the OSHA thirty (30) hour outreach training course; 2) will be located within a 50 mile
radius of the Work to be performed under this Agreement; and 3) will be responsive
to CPS Energy’s request for participation in safety events, analysis and/or sessions.
C.
ADDITIONAL INFORMATION TO BE SUBMITTED
The Offeror shall also submit the following information with its Proposal:
1. A description of the firm’s organizational setup and organizational flowchart reflecting firm’s
ability to perform the majority of the Services with the firm’s own forces and equipment, and
under the management of its own organization.
2. A list of personnel to be involved in this Contract, their position, qualifications and job
descriptions. As per the TEXAS OCCUPATIONS CODE, CHAPTER 1305,
ELECTRICIANS, SUBCHAPTER A, GENERAL PROVISIONS, Sec. 1305.001 (This
chapter may be cited as the Texas Electrical Safety and Licensing Act. Added by Acts 2003,
78th Leg., Ch. 1062, Sec. 1, eff. Sept. 1, 2003), Apprentice, Journeyman and Master
Electricians shall be defined as follows:
Electrical Apprentice--An individual, licensed as an apprentice, who works under the onsite supervision of a master electrician, a journeyman electrician, or a residential
wireman, on behalf of an electrical contractor performing "Electrical Work" as defined
by Texas Occupations Code, §1305.002 (11).
Journeyman Electrician--An individual, licensed as a journeyman electrician, who works
under the general supervision of a master electrician, on behalf of an electrical
contractor, while performing "Electrical Work" as defined by Texas Occupations Code,
§1305.002(11).
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Master Electrician--An individual, licensed as a master electrician, who on behalf of an
electrical contractor, performs "Electrical Work" as defined by Texas Occupations Code,
§1305.002(11).
3. Up-to-date copy of their Safety Program/Manual. Safety Program/Manuals that have not been
updated to meet current OSHA standards within the last twelve (12) months are considered
out-of-date. (one example is that the new OSHA Hazard Communication Standard has
various compliance deadlines: The Hazard Communication Standard (HCS) (29 CFR
1910.1200(g)), revised in 2012, requires that the chemical manufacturer, distributor, or
importer provide Safety Data Sheets (SDSs) (formerly MSDSs or Material Safety Data
Sheets) for each hazardous chemical to downstream users to communicate information on
these hazards. The information contained in the SDS is largely the same as the MSDS, except
now the SDSs are required to be presented in a consistent user-friendly, 16-section format.
For deadline dates please go to www.OSHA.gov).
4. A list of names and addresses of all Subcontractors to be used, if any, and the proposed
services each Subcontractor would perform. Examples of jobs providing proof that
Subcontractors have successfully performed these services in the past three (3) years. These
Subcontractors must meet the approval of CPS Energy prior to the execution of this Contract.
a. Offeror shall provide its subcontractors safety information, as stated in Section B.
titled, “Qualifying Factors,” Item 7., sub-items a. through d. for all subcontractors to
be used, if any.
5. Provide a completed CPS Energy Business Questionnaire, attached as Exhibit D, with their
submittal only if their business classification is expired or not listed within the CPS Energy’s
supplier database.
If Offeror has provided goods or performed services for CPS Energy in the two (2)
years preceding the submittal due date and completed a Business Questionnaire at that
time, Offeror shall access the Supplier Classification List to determine whether
Offeror’s business classification is current or needs updating. Business Questionnaires
shall only be considered valid for two (2) years from classification date and must be
updated with a new Business Questionnaire beyond such 2 year period. The Business
Questionnaire assists CPS Energy, who is a federal contractor for reporting its
contracting activity to the federal government, in identifying an Offeror’s business, if
applicable, as 1) Local, 2) Small, and/or 3) Diverse in accordance with the
definitions/descriptions below:
Local - Any business located in the San Antonio eight-county metropolitan area as
defined by the Office of Management and Budget (OMB). The metropolitan area is
colloquially referred to as "Greater San Antonio" and is situated in South-Central
Texas. The counties included are Atascosa, Bandera, Bexar, Comal, Guadalupe,
Kendall, Medina, and Wilson Counties.
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Small - A business that does not exceed the Small Business Administration's size
standards, which vary by work category. Information about each category and size
standard can be found on the Small Business Administration’s website at
http://www.sba.gov/size/indextableofsize.html.
Diverse - Any Businesses which meets one of the following classifications, Women,
Minority, Veteran, Historically Underutilized Business (HUB) Zone, or Servicedisabled Veteran.
6. If CPS Energy desires for the selected Bidder to have unescorted access to CPS Energy
facilities, the successful Bidder shall be required to provide the designated field representative
the Contractor Employee Data Form, included as Exhibit C, for each employee prior to the
Contractor initiating the Services. Unless an exception is authorized by the CPS Energy Chief
Compliance Officer, CPS Energy shall conduct the required background check. Any
Bidder’s employee whose background check results indicate a failure to meet the
minimum requirements established by CPS Energy shall not be assigned to perform
Services for CPS Energy.
7. Any exception to the specifications, requirements or the terms and conditions of this
Contract must be clearly acknowledged and then inserted in tracked-change (red-lined)
MS Word format within the electronic copy of the CPS Energy Contract and Agreement
provided to Offeror. Electronic document containing exceptions must accompany the
Proposal within the required Flash Drive RFP submission. If there are no exceptions,
the words “NO EXCEPTIONS” must be stated.
8. Any other documents as required in this Proposal.
D.
REJECTION OF PROPOSAL
Failure to submit information detailed in B. QUALIFYING FACTORS and C.
ADDITIONAL INFORMATION TO BE SUBMITTED may be used, at the sole discretion
of CPS Energy, in determining whether the Offeror’s Proposal is accepted or rejected. It is
agreed that the Contract between CPS Energy and the successful Offeror shall not come
into existence until the actual signing of the Contract and issuance of a Purchase Order.
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EXHIBIT A – PROPOSED CONTRACT
PHOTOVOLTAIC SYSTEM AGREEMENT
Table of Contents
1.
Order Process ................................................................................................................................... 1
2.
Shipment and Delivery. ................................................................................................................... 2
3.
Inspection/Acceptance. .................................................................................................................... 3
4.
Pricing and Payment Terms. ............................................................................................................ 3
5.
Software. .......................................................................................................................................... 4
6.
Delivery and Installation/Completion of Services. .......................................................................... 5
7.
Ownership of Intellectual Property Rights in Work ........................................................................ 6
8.
Warranties ........................................................................................................................................ 7
9.
Confidential Information ............................................................................................................... 10
10.
Security; Data Privacy. .................................................................................................................. 12
11.
Term and Termination ................................................................................................................... 13
12.
Limitation of Liability.................................................................................................................... 14
13.
Indemnification .............................................................................................................................. 14
14.
Insurance. ....................................................................................................................................... 15
15.
Right to Audit ................................................................................................................................ 15
16.
Subcontracting. .............................................................................................................................. 16
17.
Utilization of Small Business Concerns ........................................................................................ 16
18.
Survival .......................................................................................................................................... 17
19.
Miscellaneous Clauses. .................................................................................................................. 17
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PHOTOVOLTAIC SYSTEM AGREEMENT
This Agreement for a photovoltaic system (the “Agreement”) is entered into as of this [ᴥ]
day of [ᴥ], 2015 (the “Effective Date”) by and between the City of San Antonio, acting by and
through City Public Service Board (“CPS Energy”), with its principal office located at 145 Navarro
Street, San Antonio, Texas 78205 and [name], a [state] [corporation, limited liability company, etc.]
with its principal office located at [address] (the “Company”). Company and CPS Energy are
sometimes individually referred to herein as a “party” and collectively as the “parties.”
WHEREAS, Company is engaged in the business of providing photovoltaic systems and
related services;
WHEREAS, CPS Energy desires to retain Company to provide a photovoltaic system and
related services for its Microgrid Management System/Distributed Intelligence Platform Reference
Architecture project (the “Project”); and
WHEREAS, this Agreement defines the terms and conditions of the business relationship
between the parties.
NOW THEREFORE, in consideration of the mutual promises, covenants and agreements
contained herein, the parties mutually agree as follows:
AGREEMENT
1. Order Process.
a. Orders. This Agreement shall apply to the delivery of equipment, supplies, parts,
materials, and other tangible items (“Goods”); software programs and related
program updates and documentation (“Software”); and any related support,
consulting, training, installation, maintenance, and/or other services incidental to
CPS Energy’s use of the Goods or Software (“Services,” and together with the Goods
and Software, the “Product”) as further described in orders (“Orders”) that may be
proposed and approved by the parties. Any such Order must be in writing and
becomes effective when (i) the Order is signed by both parties or (ii) if the Order is
a Purchase Order issued by CPS Energy, three (3) days after issuance of the Purchase
Order if Company has not rejected the Order in that time. This Agreement shall
govern each Order between CPS Energy and the Company unless the Order clearly
indicates otherwise.
b. Coterminous Maintenance Periods. If in connection with any Product, CPS Energy
purchases maintenance, support or similar services on an annual (or other term) basis,
then CPS Energy may, but is not required to, purchase Services on a co-terminous
basis for each subsequent Order for Products. Company shall pro-rate its price for
the first partial service period based on the actual number of days covered by the first
partial service period.
c. General. Absent the execution or issuance of an Order, this Agreement does not, in
and of itself, represent a commitment by CPS Energy to purchase any Products from
Company or pay Company any fees. This Agreement, together with any Order, CAO
(as defined below), and any exhibits, appendices, and other documents attached to or
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incorporated by reference in this Agreement, Order, or CAO shall be collectively
referred to as this “Agreement.”
d. Change Authorization Orders. In the event that the parties desire to change the terms
of an existing Order (including any extension of time for delivery of Products or
providing Services), the parties shall prepare and sign a Change Authorization Order
(“CAO”), which shall be incorporated into this Agreement. No changes to an Order
shall become effective until both parties have signed the CAO.
e. Cancellation. CPS Energy may cancel an Order by written notice at any time prior
to the scheduled shipment date. If CPS Energy cancels an Order on less than three
(3) business days of the scheduled shipment date, then CPS Energy shall pay a restocking fee of one percent (1%) of the purchase price of the Products (exclusive of
shipping, tax, and other charges), not to exceed in any event Ten Thousand Dollars
($10,000.00) for a single Order. CPS Energy shall have no liability for cancellation
of an Order at least three (3) business days prior to the scheduled shipment date. The
re-stocking fee shall be Company’s sole and exclusive remedy for cancellation of an
Order.
f. Postponing Shipment. CPS Energy may postpone a shipment date one (1) time by
written notice given at least one (1) business day prior to the scheduled shipment
date, provided that the rescheduled date does not exceed the original date by more
than thirty (30) days. Shipment dates may be rescheduled only by an authorized
representative of CPS Energy.
2. Shipment and Delivery.
a. Shipping and Delivery. Company shall ship the Products via a carrier and/or
shipping means as has been agreed by the parties in the Order, or if no shipping
means has been identified, by such means as is reasonably requested by CPS Energy.
Company’s delivery obligations include (where applicable) payment of duty and
other charges, performance at the Company’s cost of any administrative matters
connected with the passing of the Products through customs, and the provision at the
Company’s cost of any required information to any appropriate authorities in
connection with the import and/or delivery of the Products. Company shall be
responsible for compliance, at Company’ expense, with all applicable import and
export requirements. Company shall include with each shipment a packing list for
the Products included that references, at a minimum, the related Order, and the type
and quantity of Products shipped.
b. Title. Title to the Products shall remain with the Company until delivered to
CPS Energy at the destination specified on the face of the Order. All risk of loss or
damage to the Products shall be on Company until title to the Products passes to
CPS Energy. If CPS Energy rightfully rejects the Products, Company shall bear all
risk of loss or damage until such Products are re-delivered to CPS Energy.
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c. Delivery to Storeroom. A notice of forty–eight (48) hours is required prior to any
delivery when the delivery is away from the storeroom address or for shipments
requiring special unloading equipment and/or crews. Delivery hours by storeroom
are available at www.cpsenergy.com.
d. Time of Performance. The Products to be provided under this Agreement shall be
delivered by Company, in accordance with the project schedule included in Exhibit 3
(Scope of Work).
e. Late Delivery. Without limiting Company’s liability for late delivery, if Company
becomes aware that it will not be able to meet a delivery date, then: (i) it shall
promptly notify CPS Energy of the delay and its proposed solution and recovery
plans and (ii) shall expedite delivery of any such Products, at its expense.
Acceptance by CPS Energy of early or late delivery shall not waive the right to claim
damage for such breach nor constitute a waiver of the requirements for timely
performance of any obligation remaining to be performed by the Company.
3. Inspection/Acceptance.
a. Inspection. Upon receipt of a shipment, CPS Energy shall have ten (10) days to
verify that the Products shipped conform to the type of Product and quantity stated
in the packing list and Order, and that the Products were not damaged in transit.
b. Acceptance. CPS Energy shall have up to thirty (30) days following receipt of a
shipment to test the Products for conformance to the specifications and
Documentation and may return any nonconforming Products at Company’s expense.
c. Rejection. If CPS Energy rejects a shipment as non–conforming or damaged, it shall
promptly notify Company and reasonably cooperate with Company’s process and/or
investigations with respect to the return of the Products, insurance claims, and related
matters. CPS Energy shall have no obligation to pay for any rejected Products.
4. Pricing and Payment Terms.
a. Pricing. In exchange for the Products provided by Company, as set forth in any
Order, CPS Energy agrees to compensate Company at the rates identified in the fee
schedule set forth in the applicable Order. Unless otherwise specified, the Products,
including any related maintenance fees, will not be subject to any price increase
following the acceptance of an Order and prior to delivery. Company represents and
warrants that it will offer to CPS Energy pricing terms at least as favorable as those
offered to any other customer. If Company offers more favorable pricing to any other
customer during the Term of this Agreement, then Company must provide written
notice to CPS Energy of such offer and must (i) modify the pricing available to
CPS Energy, and (ii) refund to CPS Energy an amount equal to the difference
between the prices paid and the prices that would have been paid under the modified
pricing back to the date that the more favorable pricing was made available to the
other customer.
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b. Invoices. CPS Energy will pay Company upon delivery of Goods and rendering of
all Services. Invoices shall include sufficient detail so that invoiced amounts can be
matched to respective Orders. Such detail shall include the Order number; for Goods,
the quantity and type of Goods, the date those Goods were shipped, and whether the
shipment of Goods was for less than the total quantity covered by an Order; and for
Services, the type of Service and the date(s) on which the Services were completed.
Company must submit invoices to the following address:
CPS Energy
Attn: Accounts Payable – MD 100705
P.O. Box 2921
San Antonio, Texas 78299–2921
Charges will be paid within thirty (30) days after they are properly invoiced.
“Properly invoiced” means that an invoice has been timely submitted, reflects
appropriate charges, and otherwise complies with this Agreement. CPS Energy shall
not be required to pay any invoices that are issued more than forty–five (45) days
after the end of the month during which the fees accrued. If there is a dispute with
respect to any portion of an invoice, CPS Energy shall pay the undisputed portion
and provide written details specifying the basis of any dispute.
c. Tax–Exempt Organization. CPS Energy is a municipally owned electric and gas
utility and as such is a TAX–EXEMPT ORGANIZATION. CPS Energy is exempt
from certain sales and use taxes with respect to the purchase price of all materials,
supplies, equipment and consumables purchased under an Order. Company shall not
invoice or charge CPS Energy for such taxes and shall be provided with a Sales Tax–
Exemption Certificate upon request. Failure by Company to request a Sales Tax–
Exemption Certificate shall not mean that CPS Energy waives its tax–exempt status.
CPS Energy shall not pay any taxes for which it is exempt.
d. Withholding Payments. CPS Energy may withhold payments due to the Company
to the extent necessary to protect itself against loss from the following:
i. Defective Goods not remedied;
ii. Failure to render Services;
iii. Claims filed or reasonable evidence indicating the probable filing of claims;
iv. Failure of the Company to make payments properly to Subcontractors for
material or labor; and/or
v. Any other violation of or failure to comply with the provisions of this
Agreement.
5. Software.
a. License. Subject to the terms of the Agreement, Company hereby licenses the
Software to CPS Energy on a worldwide, non-exclusive, non-sublicensable basis on
the commercial terms stated in the Order. Unless otherwise stated in an Order, the
license shall be perpetual and royalty-free.
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b. Standard Licensing Terms. Company’s licensing terms for Software that may be
stated in Company’s End User License or similar agreement shall become part of the
Agreement if and to the extent they fall within one of the following categories, but
shall otherwise be of no force or effect whatsoever:
i. reservation of rights except for rights specifically granted in the Agreement;
ii. restrictions on decompiling, reverse engineering, and similar activities;
provided that no such restriction shall apply to the extent applicable law
prohibits such a restriction;
iii. restrictions on modifications and creation of other derivative works based on
the Software; and
iv. reasonable and customary language required by Company’s third party
licensors to be included in Company’s license with its customers, provided
that such language is consistent with the commercial terms of CPS Energy’s
license for the Software.
6. Delivery and Installation/Completion of Services.
a. Schedule of Services. Company shall furnish, deliver, and install the Goods
associated with the Project consistent with Exhibit 5 (the Military Base
Subcontractor Addendum).
b. Delivery. Delivery of equipment and materials for the Project shall be Freight on
Board (FOB) to the project location – the library at Fort Sam Houston Air Force base,
San Antonio, Texas, or as otherwise specified by CPS Energy.
c. Access to Microgrid Site. Until completion of the Work or the earlier termination of
this Agreement, CPS Energy shall provide Company and its Subcontractors
reasonable access to the Microgrid Site1 during normal working hours for the purpose
of installation of the Products and training personnel as permitted herein, subject to
and in accordance with any terms, conditions, security clearances, and other
restrictions and requirements of the person/entity that owns or controls the Microgrid
Site; provided that Company provides reasonable advance notice to CPS Energy and
Company and its Subcontractors are accompanied by an authorized CPS Energy
representative, wear protective equipment as directed by CPS Energy, and follow all
other safety rules of CPS Energy. CPS Energy will assist Company with
coordinating with the person/entity that owns or controls the Microgrid Site in
connection with requests for obtaining permission to access the Microgrid Site.
1
Means the site designated by CPS Energy for the location of the Project. It is anticipated that the Project will take
place at Joint Base San Antonio, Fort Sam Houston – a military installation of the United States Department of
Defense.
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d. Quality Control. Company shall have quality control representatives participating in
all phases of fabrication and testing to ensure compliance with the scope of Services
identified in Exhibit 4 and Purchase Order requirements. Quality control procedures
shall be in effect and be followed at the Company’s or Subcontractor’s facilities and
subject to verification by CPS Energy. All methods of construction that are not
specifically described or indicated in the contract documents shall be subject to the
control and approval of CPS Energy.
e. Standards. Company shall perform all Work by qualified personnel in accordance
with the generally accepted standards and practices of the information technology
industry in existence at the time the Work is being performed. All Work performed
by Company related to the Project shall be performed in accordance with the
standards, practices and requirements of CPS Energy.
f. Safety and Security. Each Party agrees, at all times during the performance of its
Work, to abide by all reasonable standards, guidelines, and procedures conveyed to
such Party in writing by the other Party pertaining to the security and protection of
software, information or computer systems or equipment, facilities or property;
provided, that, the foregoing does not cause an excusable delay or the receiving Party
does not object in writing to the other Party within twenty (20) days after receiving
such written standards, guidelines and procedures.
g. Delay. Time is of the essence. In the event Company falls behind the delivery and
project schedule established in this Agreement, Company shall, upon notice to
CPS Energy, implement whatever overtime activities or addition of manpower as
may be necessary to achieve scheduled delivery at Company’s sole cost. It is
recognized by the parties that if the Goods are not delivered to CPS Energy on or
before the delivery date(s) specified in the Schedule, CPS Energy could incur
damages including, but not limited to, additional labor costs. Company therefore
agrees to reimburse CPS Energy for any damages directly attributable to late delivery
whether such damages arise in contract, tort, strict liability, or otherwise and whether
such damages could be characterized as direct, indirect, special, or consequential in
nature. The amount of such damages may, at CPS Energy’s option, be deducted and
retained from any amount which would otherwise be payable to Company.
Notwithstanding any limitation–of–liability provision that purports to limit
Company’s liability for various types of damages, Company’s liability pursuant to
this provision shall be unaffected.
7. Ownership of Intellectual Property Rights in Work.
a. The parties agree that any plans, studies, diagrams, drawings, documents, derivative
works, products, strategic materials, designs, brochures, correspondence, reports and
any other proprietary information that Company creates in the course of providing
the Services (collectively the “Work”) shall be considered “works made for hire” to
the extent permitted by applicable law. CPS Energy will own the Work, including
any intellectual property rights in the Work. Company hereby irrevocably assigns
all rights, title, and interests in the Work to CPS Energy as its sole and exclusive
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property. The rights assigned under this Agreement shall not lapse on account of
non–exercise of the rights. Company agrees that it will cooperate with CPS Energy
in completing documents, providing information, and doing other things needed to
evidence CPS Energy’s ownership of the Work, or to evidence the transfer of these
rights to CPS Energy, including those things necessary to register any intellectual
property right.
Notwithstanding the foregoing, the parties recognize that
performance of Company hereunder will require the skills of Company and,
therefore, Company shall retain the right to use, without fee and for any purpose,
such know–how, ideas, techniques and concepts used or developed by Company in
the course of performance of the terms of this Agreement.
b. Company’s Pre-Existing Intellectual Property and Third Party Components.
CPS Energy may, from time to time, agree that Company may include in software or
other Work, material which Company created prior to the Effective Date or outside
the scope of this Agreement (the “Company Pre-Existing IP”) and/or certain
software or other Work which Company has licensed from third parties (“Third
Party Components”); provided, however, that any such agreement must be in
writing, must specifically identify the portion of the Work that is Company PreExisting IP and/or Third Party Components, and must be signed by an authorized
signatory of CPS Energy. In addition, Company must fully disclose Company’s
licensing arrangements for the Third Party Components, including providing
CPS Energy with copies of written license agreements and, if requested, evidence of
payment of the appropriate license fees. CPS Energy acknowledges that the
Company Pre-Existing Work and the Third Party Components are not Work as
defined above. Company hereby grants CPS Energy a perpetual, worldwide, nonrevocable, fully paid, royalty-free, transferable, non-exclusive, sub-licensable
license to use and distribute the Company Pre-Existing IP. Company hereby
sublicenses the Third Party Components to CPS Energy in the most complete manner
permitted under the terms of Company’s license with the third party.
c. Submission of Manuals. Company shall provide to CPS Energy, for review and
approval, all drawings and manuals prepared by Company for operation and
maintenance of the Goods in accordance with the project schedule included in
Exhibit 4 and shall provide all information necessary for the integration of the Goods
into the Project. Where Company’s Goods include a Subcontractor’s components or
assemblies, drawings showing the correlation of all parts shall be furnished. Except
as otherwise specified hereinafter, all drawings and data submitted to CPS Energy
for review and approval shall apply specifically to the Goods required by Exhibit 4.
8. Warranties. The parties may establish additional warranty terms for Products via an Order,
provided, however, that Company is deemed to make at least the minimum warranty stated
below in this Subsection with respect to the Products (including those Products in which the
Company is not the manufacturer). Any warranty that states a shorter period or lesser
coverage shall be deemed reformed as to the deficient element of the warranty. The parties
may not vary the terms of this minimum warranty except by plain and conspicuous language
in an Order.
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a. Goods. In addition to any warranties stated in Company’s Documentation for Goods,
Company gives the following warranties:
i. Standard Warranty. For the later of either (a) three (3) year from the date of
shipment, or (b) the standard warranty for the Product, the Goods will: (i)
conform to Company’s Documentation, (ii) be free from defects in design,
workmanship, and material, and (iii) meet the specifications stated in the
applicable Order(s). During this warranty period, the Company will be the
main point of contact for all issues, including manufacturer defects.
ii. Remedy. Upon receipt of a warranty claim notice from CPS Energy,
Company will promptly repair or replace non–conforming Goods; provided
that CPS Energy shall give Company reasonable access to the Goods that are
the subject of the claim and will comply with Company’s commercially
reasonable “RMA” or other return process. If Company, through the use of
commercially reasonable efforts, is unable to repair or replace any non–
conforming Goods, then Company shall refund the purchase price paid for
the Goods and reimburse CPS Energy for its shipping and other direct costs
of procurement of the Goods. The remedy stated in this Subsection shall be
CPS Energy’s sole and exclusive remedy for Company’s breach of the
warranties stated above in this Subsection.
b. Software. In addition to any warranties stated in Company’s Documentation for
Software, Company gives the following warranties:
i. Standard Warranty. The Software will perform substantially in accordance
with the Documentation, any specifications stated in the Order, and, as of the
time of delivery, be free from harmful, disabling, malicious, or hidden
mechanisms or code that could cause damage or interfere with the normal
function of the Software or the information technology systems on which
they are installed. The warranty stated in this Section shall extend for ninety
(90) days from the date of receipt of the media on which the Software are
delivered.
ii. Media. If the Software is delivered to CPS Energy on tangible media, the
media on which the Software is delivered will be free from material defects
for a period of ninety (90) days from receipt, provided, however, that if
Company’s standard Documentation states a warranty period of longer than
ninety (90) days, then the warranty period shall be the period stated in
Company’s Documentation.
iii. Remedy. Upon receipt of a warranty claim notice from CPS Energy,
Company will promptly correct or replace any non-conforming Software;
provided that CPS Energy shall comply with Company’s commercially
reasonable warranty return process. If Company, through the use of
commercially reasonable efforts, is unable to correct or replace any nonconforming Software, then Company shall refund the purchase price paid for
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the Software License for the Software and reimburse CPS Energy for its
shipping and other direct costs of procurement of the Software. The remedy
stated in this Subsection shall be CPS Energy’s sole and exclusive remedy
for Company’s breach of the warranties stated above in this Subsection.
c. Services. In addition to any warranties stated in Company’s Documentation for
Services, Company gives the following warranties:
i. Standard Warranty. Company warrants that the Services will be provided in
a good and skillful manner in accordance with the Documentation, and in
accordance with any specifications that the parties have agreed via plain and
conspicuous language in an Order. The Company’s workmanship shall be
warranted for a minimum of three (3) years. During this warranty period, the
Company will be the main point of contact. Company represents and
warrants that its personnel assigned to provide the Services have appropriate
training, skill, and experience to provide the Services in accordance with the
warranties stated in this Section.
ii. Remedy. Company shall re–perform any part of the Services that fails to
meet the warranties stated above, provided that CPS Energy gives notice of
such failure within ninety (90) days of completion of the Services.
d. Product Hazard. In the event that either party becomes aware that the Products or
the use of the Products could cause death or bodily injury to a person, or substantial
damage to tangible property, or becomes aware of information that such a condition
could exist, that party shall notify the other party immediately, and in all events
within twenty four (24) hours. Company shall be responsible for all costs associated
with such a hazard, such as the cost of recall or substitution. Unless otherwise
required by law, in the reasonable opinion of a party’s legal counsel, neither party
shall disclose the existence of such a hazard to a governmental agency without the
participation of the other party.
e. Other Company Warranties.
representations and warranties:
Company makes the following additional
i. Title. Upon payment, CPS Energy shall acquire good and marketable title to
all Goods, free and clear of liens and encumbrances;
ii. Compliance with Law. Company shall perform its obligations under the
Agreement in compliance with applicable laws and regulations, including the
Foreign Corrupt Practices Act;
iii. Documentation. The Documentation shall be substantially accurate and
complete; and
iv. Intellectual Property. Company represents and warrants that CPS Energy’s
use of the Products, as permitted by the terms of the Agreement, shall not
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infringe on any third–party patent, trademark, copyright, trade secret, or other
intellectual property right. Company represents and warrants that Company
is authorized to license any third–party software or other components of the
Products to CPS Energy for use, as permitted by the Agreement, without
payment of any royalty or fee to a third–party. The Software is not subject
to any license that would require: (i) redistribution of the Software on a no–
fee basis, (ii) the publication of the source code for the Software, or (iii) the
licensing of the Software under an open source license.
f. Definition. For purposes of this Agreement, “Documentation” means Company’s
written documentation provided in connection with a Product that describes the
functions and features of the Product, including user guides and manuals,
information describing technical functionality and specifications, and related
information that Supplier provides to its customers generally in connection with the
Products that are the subject matter of this Agreement, whether in print, web based,
or other electronic form, all as they may be updated from time to time.
“Documentation” does not include marketing and promotional materials to the extent
that such materials state subjective evaluations of Products.
g. Warranty Disclaimer. EXCEPT FOR THE WARRANTIES EXPRESSLY STATED
IN THIS AGREEMENT COMPANY MAKES NO WARRANTIES OF ANY
KIND, EXPRESS OR IMPLIED. COMPANY DISCLAIMS ANY IMPLIED
WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, TO THE EXTENT APPLICABLE.
9. Confidential Information.
a. The parties understand and acknowledge that they may, from time to time, disclose
and receive Confidential Information. The following information is “Confidential
Information”: (i) as to both parties, the terms of this Agreement, and all information
exchanged by or on behalf of the parties during negotiations culminating in this
Agreement and during the Term of this Agreement; any information related to a
party’s performance of, or failure to perform, this Agreement; any information that
is marked or designated as “Confidential” at the time of disclosure; any information
related to that party’s assets, liabilities, finances, business strategies, product
development plans, operations, technology, know–how, trade secrets, inventions,
techniques, processes, source code, schematics, designs, customers, vendors, and
personnel; and all other information that a reasonable person would understand to
be confidential given the nature of the information and/or the circumstances of
disclosure; and (ii) as to CPS Energy, data center locations, data center designs
(including non–graphic information observed at CPS Energy’s data center), network
topology, and all network and data storage information. During the term of this
Agreement and thereafter, the receiving party will not (i) use the Confidential
Information except to perform its duties and obligations under this Agreement or
(ii) disclose the Confidential Information to any third party without the prior written
consent of the disclosing party, except that the receiving party may disclose the
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Confidential Information to its employees, agents, and representatives who need to
know the information to represent or advise it with respect to the subject matter of
this Agreement and who are bound by written non–disclosure obligations at least as
stringent as those stated in this Agreement. The receiving party shall take reasonable
measures to prevent any unauthorized disclosure by its employees, agents, and
representatives. In no event shall the parties use the other party’s Confidential
Information to reverse engineer or otherwise develop products or services
functionally equivalent to the products or services of the owner. The receiving
party’s obligations with respect to the Confidential Information also extend to any
third party’s proprietary or confidential information disclosed to receiving party
under this Agreement.
b. This confidentiality obligation will not apply to the extent that the receiving party
can demonstrate that: (i) the Confidential Information is available to the public at the
time of disclosure; (ii) the Confidential Information thereafter becomes available to
the public, except by breach of the provisions of this Agreement or violation of law
or other agreement; (iii) the receiving party can establish by written evidence that it
had possession of the Confidential Information prior to the time of disclosure; (iv)
the Confidential Information is received from a third–party that is not bound by a
confidential relationship with the disclosing party; or (v) the Confidential
Information was developed by employees or agents of the receiving party
independently of and without reference to any Confidential Information.
c. If the receiving party is requested or required (e.g., by deposition, interrogatory,
request for documents, subpoena, civil investigative demand, open records request,
or similar process) to disclose any of the Confidential Information, then the receiving
party will notify the disclosing party (to the extent legally permissible) promptly in
writing so that the disclosing party may seek any appropriate protective order and/or
take any other action. In any event that the receiving party is legally compelled or
obligated to disclose any of the Confidential Information, such Confidential
Information may be disclosed as required; provided, however, that the receiving
party will use its best efforts to minimize the disclosure of such information.
d. Each party shall return or irretrievably destroy the other party’s Confidential
Information and all material which is derived from the Confidential Information
immediately on completion of the Agreement, or earlier on request of the other party,
provided that a party may retain the other party’s Confidential Information only if
reasonably necessary to use the Products, or to maintain reasonable and customary
business records. On request of a party, an officer of the other party shall certify its
compliance with the preceding sentence.
e. The parties agree that the disclosure of Confidential Information by the receiving
party will cause the disclosing party irreparable damage for which recovery of money
damages would be inadequate. The disclosing party is therefore entitled to injunctive
relief in addition to all other remedies available at law.
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10. Security; Data Privacy.
a. General Security. Company shall comply with all CPS Energy’s policies at all times,
including but not limited to, the Enterprise Cyber Security Policy (NERC), the
Information Security Policy, the General Workplace Security Policy, and the
Information Systems Use Policy; each as may be amended from time to time
(collectively, the “Security Policies”). CPS Energy’s Security Policies are attached
hereto as Exhibit 3. Additionally, should any Product be provided to CPS Energy
systems under the North American Electric Reliability Corporation (“NERC”),
Company shall comply with all NERC security policies and CPS Energy policies (as
provided by CPS Energy) related to the NERC standards and requirements.
b. Network Security. Company shall take all necessary security measures to protect
Company’s computer systems, networks and databases, and the data processed,
transmitted or stored thereon against the risk of penetration by, or exposure to, a third
party via any system or feature utilized by Company in performing Services or
accessing such systems. Company shall not attempt to access CPS Energy’s secure
network(s), databases, or other information systems without CPS Energy’s prior
written consent, either via its personnel performing Services onsite, or remotely.
Any access to CPS Energy’s secure network(s), databases, or other information
systems shall be subject to the terms of Exhibit 1, titled “Data Security Addendum.”
CPS Energy’s consent for such access may be revoked at any time in CPS Energy’s
sole discretion; provided, however, that if CPS Energy has not provided reasonable
grounds for terminating such access, then Company shall be relieved of its
obligations under the Agreement to the extent it is delayed in performing them by
reason of the termination.
c. Breach of Network Security. Company agrees to notify CPS Energy promptly
(within two (2) to six (6) hours) upon Company’s discovery of any fault or breach of
Company’s data security procedures that results in any actual or threatened loss,
corruption, or alteration of any Confidential Information or any content, data or other
information transmitted to or from, or stored on, a secure CPS Energy network,
database, or other information system, regardless of where such system is housed.
Company shall notify the CPS Energy service desk (210–353–2020). In such
instance, in addition to Company’s other obligations under this Agreement, or under
any law, Company agrees to promptly remedy any such fault or breach and to fully
cooperate with CPS Energy in resolving such fault or breach.
d. On–Site Security. Company personnel who perform Services on CPS Energy’s
premises must comply with CPS Energy’s on–site security requirements, as they may
be modified from time to time. CPS Energy may require any Company personnel to
leave its premises for any reason or no reason in CPS Energy’s sole discretion;
provided, however, that if CPS Energy has not provided reasonable grounds for
requiring the personnel to leave, then Company shall be relieved of its obligations
under the Agreement to the extent it is delayed in performing them by reason of the
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removal. Company acknowledges that for any Services performed in or around a
datacenter shall be provided in accordance with industry best practices which require
the use of extraordinary care to prevent damage to the information systems housed
in the datacenter and the supporting infrastructure.
e. Background Checks. Company shall have conducted a background screening of each
individual to whom it gives access to CPS Energy networks and each individual who
provides on–site Services for CPS Energy at the federal, state, and county level,
including each county where the individual has lived for the past seven (7) years.
The screening must be performed by a reputable third party screening service prior
to the date that the individual begins work for CPS Energy and must be updated at
least every three (3) years. Company must provide written documentation of the
screening results issued by the third party screening service promptly upon request
from CPS Energy.
f. Right to Approve Personnel/Revocation of Access. For Services involving access to
CPS Energy secure information and any consulting related Services, the personnel
provided by Company to perform such Services are subject to the approval of
CPS Energy, which may be withheld or revoked for any lawful reason in its sole
discretion. Company shall give CPS Energy notice within twenty–four (24) hours of
any Company termination of personnel providing Services to allow for prompt
removal of access to CPS Energy systems. Company will give CPS Energy advance
written notice of at least ten (10) days if Company intends to substitute or replace
any such personnel. If CPS Energy has not provided reasonable grounds for the
withholding or revocation of its approval, then Company shall be relieved of its
obligations under the Agreement to the extent and for such period that it is delayed
in performing them by reason of lack of CPS Energy approval.
g. Data Privacy. Company agrees that if, as part of performance of this Agreement, it
has possession of, or access to, any data that is subject to legal or regulatory privacy
or security requirements under the laws of any jurisdiction where the Company or
CPS Energy or a third party to whom the data belongs or to whom it refers is located,
it shall comply with such laws, and shall not do anything or omit to do anything
which would cause CPS Energy or any third party associated with CPS Energy
(including without limitation a CPS Energy customer) to breach any such laws.
11. Term and Termination.
a. Term. The term of this Agreement will commence on the Effective Date and will
continue for three (3) years (the “Term”). In the event that an Order provides for a
different Term, the term of the Order will apply to that specific Order only. This
Agreement shall survive as to any Order that is executed during the Term until the
expiration or termination of the Order.
b. Termination at Will. CPS Energy shall have the option to terminate this Agreement,
without cause, by providing thirty (30) days’ written notice. In the event that an
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Order provides for a different termination notice period, the Order termination clause
will control for that specific Order only.
c. Termination for Cause. If either party believes that the other party has failed in any
material respect to perform its obligations under this Agreement, then that party may
provide written notice to the other party describing the alleged failure in reasonable
detail. If the breaching party does not, within thirty (30) calendar days after receiving
such written notice, either (a) cure the material failure or (b) if the breach is not one
that cannot reasonably be cured within thirty (30) calendar days, commence and
continue to diligently pursue a cure satisfactory to the non–breaching party, then the
non–breaching party may terminate this Agreement, in whole or in part, for cause by
providing written notice to the breaching party.
d. Termination for Insolvency. Either party shall have the right to immediately
terminate this Agreement, by providing written notice to the other party, in the event
that (i) the other party becomes insolvent, enters into receivership, is the subject of a
voluntary or involuntary bankruptcy proceeding, or makes an assignment for the
benefit of creditors; or (ii) a substantial part of the other party’s property becomes
subject to any levy, seizure, assignment or sale for or by any creditor or government
agency.
e. Payments Due Post-Termination. The termination of this Agreement shall not
release either party from the obligation to make payment of all amounts then or
thereafter due or payable.
12. Limitation of Liability. Neither party (nor its employees, agents, suppliers or affiliates) shall
be liable to the other for any lost profits or any indirect, special, incidental, punitive, or
consequential loss or damage of any kind arising in connection with the Agreement, even if
the party has been advised or should be aware of the possibility of such damages. Nothing
in the Agreement limits or excludes either party’s liability for loss or damage resulting from
death or personal injury caused by its gross negligence, or any fraud or fraudulent
misrepresentation. Nothing contained in the foregoing is intended to in any way limit the
maximum recovery available to CPS Energy under the applicable policies of insurance
stipulated in Exhibit 2, titled “Minimum Insurance Requirements.”
13. Indemnification.
a. General. Company shall indemnify, defend and hold harmless CPS Energy, its
employees, principals (partners, shareholders or holders of an ownership interest, as
the case may be), officers, employees, representatives, and agents (collectively, the
“CPS Indemnified Parties”) from and against any third party claims, demands, loss,
damage or expense directly caused solely by the negligence, intentional misconduct,
or breach of Company’s obligations under this Agreement by the Company, its
personnel or agents in connection with this Agreement. CPS Energy shall indemnify,
defend and hold harmless Company, its employees, principals (partners, shareholders
or holders of an ownership interest, as the case may be), officers, employees,
representatives, and agents (collectively, the “Company Indemnified Parties”)
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from and against any third party claims, demands, loss, damage or expense directly
caused solely by the negligence of CPS Energy, its personnel or agents in connection
with this Agreement. To the extent that any claim arises from the concurrent conduct
of CPS Energy, Company and/or any third party, it is expressly agreed that each
party’s obligations of indemnity under this section shall be effective only to the
extent of each party’s pro rata share of liability. To receive the foregoing
indemnities, the party seeking indemnification must promptly notify the other in
writing of a claim or suit and provide reasonable cooperation (at the indemnifying
party’s expense) and full authority to defend or settle the claim or suit. The
indemnifying party shall have no obligation to indemnify the indemnified party
under any settlement made without the indemnifying party’s written consent. The
indemnified party reserves the right to employ counsel at its own expense and
participate in the defense and/or settlement of any claim covered by this Subsection.
b. Intellectual Property Indemnification. Company will defend and indemnify the CPS
Indemnified Parties, against any third party claim that the Products or Work infringe
the third party’s patent, trademark, copyright, trade secret or other intellectual
property right (each, an “Indemnified Claim”), and indemnify the CPS Indemnified
Parties from all resulting losses, damages, costs, and expenses (including reasonable
attorneys’ fees) (collectively referred to as “Damages”). Company may settle, at its
sole expense, any Indemnified Claim for which Company is responsible under this
Subsection. The CPS Indemnified Parties reserve the right to employ counsel at its
own expense and participate in the defense and/or settlement of any Indemnified
Claim.
14. Insurance.
a. Company agrees to carry and keep in full force during the Term insurance sufficient
to fully protect CPS Energy from all Damages, claims, suits and/or judgments to
include errors, omissions, violations, fees and penalties caused or claimed to have
been caused by, or in connection with the performance or failure to perform this
Agreement by Company, a Company Subcontractor, or their agents, or employees.
The minimum amount of insurance as required shall be in accordance with Exhibit
2, titled “Minimum Insurance Requirements.”
b. Should the minimum insurance requirements of CPS Energy change, Company shall
be notified in writing and Company shall have sixty (60) days to meet the new
requirements. Should the new requirements add materially to Company’s cost,
Company should notify CPS Energy and request adjustment in Company’s
compensation. Company’s insurance shall be primary to and non–contributory with
any self–insurance and/or insurance maintained by CPS Energy.
15. Right to Audit. Company’s and its Subcontractor’s books, records, correspondence,
accounting procedures and practices and any other supporting evidence relating to this
Agreement (all the foregoing hereinafter referred to as “Records”) shall be open to
examination and subject to audit and/or reproduction, during normal working hours, by
CPS Energy or its authorized representative to the extent necessary to adequately permit
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evaluation and verification of any invoices, payments or claims based on Company’s or
Subcontractor’s actual costs (including direct and indirect costs and overhead allocations)
incurred, or units expended, directly in the performance of Work under this Agreement to
determine compliance to terms and conditions of this Agreement, or ascertain any facts
relative to any claim against Company which may become a charge against CPS Energy.
For this purpose of evaluating or verifying such actual or claimed costs or units expended,
CPS Energy or its authorized representative shall have access to said Records from the
Effective Date of this Agreement, for the duration of the Order and until two (2) years after
the date of final payment by CPS Energy to Company pursuant to this Agreement.
CPS Energy or its authorized representative shall have access during normal working hours,
to all necessary Company and Subcontractor facilities, and shall be provided adequate and
appropriate workspace, in order to conduct audits in compliance with the provisions of this
Section. CPS Energy shall give Company or Subcontractor a minimum of five (5) days
advance written notice of intended audits. Company shall require Subcontractors to comply
with the provisions of this Section by insertion of the requirements hereof in any subcontract
pursuant to this Agreement.
16. Subcontracting. Company shall secure CPS Energy’s written approval before subcontracting
any portion of its obligations under this Agreement and shall obtain CPS Energy’s written
approval of all subcontracts. No such approval shall relieve the Company from any of the
obligations of this Agreement with CPS Energy. CPS Energy reserves the right to reject any
Subcontractor or subcontract. All Subcontractors shall be directly responsible to the
Company and shall be under Company’s general supervision. Agreements with
Subcontractors shall contain necessary clauses whereby the Subcontractors shall comply
with all provisions of this Agreement. Subcontractors shall secure CPS Energy’s written
approval before subcontracting any portion of its obligations under this Agreement and shall
obtain CPS Energy’s written approval of all sub-subcontracts.
17. Utilization of Small Business Concerns.
a. If this Agreement offers subcontracting opportunities, both Parties to this Agreement
agree to comply with 48 CFR 52.219–8, Utilization of Small, Service–Disabled
Veteran–Owned Small Business, HUBZone Small Business, Small Disadvantaged
Business and Woman–Owned Small Business Concerns and 48 CFR 52.219–9,
Small Service–Disabled Veteran–Owned Small Business, HUBZone Small
Business. Small Disadvantaged Business and Woman–Owned Small Business
Subcontracting Plan. If Company is classified as a large business it will be required
to furnish the subcontracting documents for any contracts expected to meet or exceed
$650,000. Failure to meet this requirement may result in the award being cancelled.
b. Company shall adopt and deliver to CPS Energy a Subcontracting Plan for both large
and small, non–minority, minority, HUBZone, service disabled veteran and/or
woman–owned businesses. Company also agrees to submit the Summary
Subcontract Report Standard Form 294 or 295, in accordance with the instructions
on the form and all supporting documentation as required by governmental directives
in the terms of the contract between CPS Energy and the U.S. Government. The
aforementioned documentation should be submitted to:
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CPS Energy Supplier Diversity Office
P. O. Box 1771 - Mail Drop 110901
San Antonio, Texas 78296–1771
Attn: Supplier Diversity Coordinator
Upon request, Company may be required to submit a copy to:
Director of Small and Disadvantaged Business Utilization
General Services Administration
18th & F Streets NW
Washington, DC 20405
18. Survival. The following provisions shall survive expiration or termination of this
Agreement: Ownership of Intellectual Property in Work, Confidential Information, Security;
Data Privacy, Limitation of Liability, Indemnification, Insurance, Right to Audit,
Miscellaneous Clauses, and any other provisions that by their nature are intended to survive
expiration or termination.
19. Miscellaneous Clauses.
a. Independent Contractor. The parties recognize that Company is an independent
contractor and nothing within this Agreement shall be construed to create a joint
venture, partnership, agency, or other employment relationship between the parties.
b. Non–Restrictive Relationship. Company may provide the same or similar products
to other customers and CPS Energy may purchase similar products from information
technology providers that are competitive with Company.
c. Trademarks. Neither party may use the other party’s name, logo, trade or service
marks, or similar indicia (each a “Trademark”) without the other party’s prior
written consent. Except as expressly stated herein, each party retains all right, title,
and interest in and to its intellectual property.
d. Waiver. The rights and remedies provided to each of the parties herein shall be
cumulative and in addition to any other rights and remedies provided by law or
otherwise. Any failure in the exercise by either party of its right to terminate this
Agreement or to enforce any provision of this Agreement for default or violation by
the other party shall not prejudice such party’s rights of termination or enforcement
for any further or other’s default or violation or be deemed a waiver or forfeiture of
those rights.
e. Force Majeure. Neither party will be liable to the other for failure to perform its
obligations hereunder if and to the extent that such failure to perform results from
causes beyond its control, including and without limitation: failures or fluctuations
in electric power, heat, light, air conditioning or telecommunication equipment,
strikes, lockouts, or other industrial disturbances; civil disturbances; fires; acts of
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God; acts of a public enemy; compliance with any regulations, order, or requirement
of any governmental body or agency; or inability to obtain transportation or
necessary materials in the open market.
f. Notices. All notices required under or regarding this Agreement will be in writing
and will be considered properly given if delivered personally, mailed via registered
or certified mail (return receipt requested and postage prepaid), or sent by courier
(confirmed by receipt) addressed to the following designated parties:
If to CPS Energy:
If to Company:
CPS Energy
Attn: General Counsel
Post Office Box 1771
San Antonio, Texas 78296
[Name]
Attn: ______________
[Mailing/Delivery Address]
[City, State, Zip]
g. Severability. If any term or provision of this Agreement is held to be illegal or
unenforceable, the validity or enforceability of the remainder of this Agreement will
not be affected. In the event an ambiguity or question of intent or interpretation
arises, this Agreement shall be construed as if drafted jointly by the parties and no
presumption or burden of proof shall arise favoring or disfavoring any party by virtue
of the authorship of any of the provisions of this Agreement.
h. Captions. The section headings in this Agreement are intended solely for
convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement.
i. Entire Agreement. This Agreement and the Order(s) and/or CAO(s) incorporated
herein constitute the entire agreement between the Parties and supersede any prior or
contemporaneous communications, representations or agreements between the
parties, whether oral or written, regarding the subject matter of this Agreement.
j. Amendments. This Agreement may be amended only by an instrument in writing
executed by the Parties hereto. Except as to those matters that this Agreement
expressly authorizes variation in an Order, this Agreement may not be modified as
to or by any Order. The pre–printed terms of each party’s business forms shall have
no effect whatsoever. If the installation process for Software presents a “clickwrap”
or similar agreement, CPS Energy’s “click” or other action taken to advance the
installation shall be deemed an acceptance only of those terms that conform to this
Agreement; other terms shall be of no force or effect whatsoever.
k. Applicable Law and Venue. This Agreement is performable in San Antonio, Bexar
County, Texas, and is governed by the laws of the State of Texas. Exclusive venue
for all actions under this Agreement shall be in the state courts of the State of Texas,
Bexar County, Texas.
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l. Assignment. Company shall not assign the any part of this Agreement, without the
previous written consent of CPS Energy, nor shall Company assign, by power of
attorney or otherwise, any of the money payable under this Agreement unless written
consent of CPS Energy has been obtained. No right under this Agreement, nor claim
for any money due or to become due hereunder, shall be asserted against
CPS Energy, or persons acting for CPS Energy, by reason of any so–called
assignment of this Agreement or any part thereof, unless such assignment has been
authorized by the written consent of CPS Energy. For purposes of this Subsection,
a change in control of the Company shall be deemed an assignment of this
Agreement. A “change in control” shall be any event that, directly or indirectly,
results in a change in the majority ownership of the voting securities of Company.
In case the Company is permitted to assign moneys due or to become due under this
Agreement, the instrument of assignment shall contain a clause subordinating the
claim of the assignee to all prior liens for the Products. CPS Energy reserves the
right to assign any of the activities herein relegated to its province to a designated
representative or agent.
m. Attorneys’ Fees. In the event CPS Energy brings any action for any relief,
declaratory or otherwise, arising out of this Agreement or on account of any breach
or default hereof, CPS Energy shall be entitled to receive from the other party
reasonable attorneys’ fees and reasonable costs and expenses, determined by the
court sitting without a jury, which shall be deemed to have accrued on the
commencement of such action and shall be enforceable whether or not such action is
prosecuted to judgment.
n. Successors and Third Party Beneficiaries. This Agreement shall inure to the benefit
of Company and CPS Energy and any successors or assigns of Company and
CPS Energy. No third parties shall have any rights hereunder.
o. Authorization. Each party represents and warrants that all consents or approvals
required of third parties (including, but not limited to, its Board of Directors or
partners) for the execution, delivery and performance of this Agreement have been
obtained and that each party has the right and authority to enter into and perform its
covenants contained in this Agreement.
p. Adherence to Laws. Company and its representatives or agents agree that in carrying
out their duties and responsibilities under this Agreement, they will neither undertake
nor cause, nor permit to be undertaken, any activity which either (i) is illegal under
any applicable laws, decrees, rules, or regulations in effect in the United States or
applicable to this Agreement, or (ii) would have the effect of causing CPS Energy to
be in violation of any laws, decrees, rules, or regulations in effect in the United States
or applicable to this Agreement. Company and its representatives or agents shall
protect and indemnify CPS Energy and CPS Energy officers and agents against any
claim or liability arising from or based on any violation of the same.
q. Signatures. Any documents signed in connection with the Agreement may be signed
in multiple counterparts which, taken together, will constitute one original.
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Facsimile signatures, signatures on an electronic image (such as .pdf or .jpg format),
and electronic signatures shall be deemed to be original signatures. Each person
executing this Agreement warrants that he is authorized to do so on behalf of the
party for whom he signs this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective
Date.
The City of San Antonio,
acting by and through
City Public Service Board
[Name]
Signature
Signature
Printed Name
Printed Name
Title
Title
Date
Date
Attachments:
Exhibit 1
Exhibit 2
Exhibit 3
Exhibit 4
Exhibit 5
PR # 10483675
Data Security Addendum
Minimum Insurance Requirements
CPS Energy Security Policies
Statement of Work
Military Base Subcontractor Addendum
Ex A - Page 20 of 35
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Exhibit 1
Data Security Addendum
This Data Security Addendum (the “Addendum”) is a part of and is governed by the
photovoltatic microgrid system agreement (the “Agreement”) entered into between [name]
(“Company”) and the City of San Antonio, acting by and through City Public Service Board
(“CPS Energy”). Capitalized terms used in this Addendum and not otherwise defined shall have
the meaning given in this Agreement. In the event of a conflict between the Agreement and this
Addendum, this Addendum shall control.
1. Definitions. “Secure Information” means: (i) Confidential Information; (ii) any content,
data or other information transmitted to or from, or stored on, a secure CPS Energy network,
database, or other information system, regardless of where such system is housed; (iii) and
any other information that would be recognized as sensitive or security–related by a person
having at least reasonable skill in information technology systems; (iv) any other information
that is designated by CPS Energy as “Secure Information” or with like notice. Secure
Information includes information to be created or delivered by Company as part of the
Products if and to the extent the information will become “Secure information” as defined
above once it is received by CPS Energy.
2. Data, Systems, Websites, and Security. Company shall establish and maintain information
security procedures and other safeguards that meet CPS Energy’s standards, as stated in its
Information Security policies and procedures, to protect against the destruction, corruption,
loss or alteration of CPS Energy Secure Information and as necessary to prevent access,
intrusion, alteration or other interference by any unauthorized third parties of the same.
Company shall comply with any additional data security requirements imposed by
CPS Energy through its contracts with CPS Energy, CPS Energy’s Information Security
Policies, or otherwise.
3. Internal Controls. Company shall maintain all data and Secure Information on its internal
network behind an appropriate protection barrier (“Firewall”) and within logically secure
areas to ensure that source code, data, graphics and other media are protected from malicious
or unauthorized access. Company agrees to maintain appropriate levels of internal controls
for granting access to source code, data, graphics, audio/visual materials and the like used
in carrying out the purposes of the Agreement, including the use of strong authentication,
such as two factor identification systems, to allow limited and controlled access to
Company’s internal network and data.
4. Access From External Networks. Company agrees that no access from external networks,
including the internet, will be permitted unless strong authentication and encryption is used
on the website(s) or method of communication. Company shall maintain an access control
list for all access to the internal network from an external network and Company agrees that
any of its servers exposed to the internet that contain CPS Energy’s Secure Information run
on a hardened operation system. In addition, any internet–facing server must have a
demilitarized zone (“DMZ”) that sits between it and Company’s network. The DMZ must
be separated by Firewalls at each border and incorporate security monitoring safeguards.
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5. CPS Energy’s Right To Audit and Review Security Controls. CPS Energy, in its sole option,
shall have the right to review the Company’s security controls at any time to determine if
they are adequate to protect CPS Energy’s Secure Information and may, in its discretion,
direct improvements of such security controls to prevent malicious or inappropriate access
to source code, data, graphics or audio/visual material used to perform the Services.
CPS Energy shall have the right to review any audit logs kept for all transactions allowed
through Firewalls or security devices/systems. CPS Energy has and shall have the right to
periodically audit Company’s use of the hardware, Software, systems and Secure
Information. As directed by CPS Energy, Company shall provide either a SSAE–16 SOC 1
Type 2 report or a SOC 2 Type 2 report. If a SOC 2 Type 2 report is to be provided,
CPS Energy will determine the specific Trust Services Principles that will be required for
the SOC 2 Type 2 report. Annually, on or before the anniversary of the Effective Date,
Company shall provide the respective SSAE–16 report to CPS Energy. If Company fails to
timely provide the required SSAE–16 report, CPS Energy may either (a) withhold payment
of any outstanding invoices to Company until the SSAE–16 report is provided to
CPS Energy, or (b) terminate the Agreement, in whole or part, subject to the Termination
for Cause provision.
6. Data Exchanges and Transfers. Company shall comply with CPS Energy encryption
requirements. Any exchange of CPS Energy Secure Information shall be protected with the
leading industry standard encryption methods for secure data (e.g. Secure FTP, SSL v3/TLS
1.0, as of the Effective Date). CPS Energy may, from time to time, issue written notice to
Company of required encryption methods and Company shall comply with such
requirements within thirty (30) days of the date of such notice. Company will also support
the exchange of delta information to avoid the sending of Secure Information, including full
customer and/or employee data, on a frequent basis. Full data exchanges will be limited.
7. Data Destruction. At the completion or termination of the Contract, any CPS Energy data
including Secure Information obtained by the Company should be properly disposed of
based on minimum requirements of the U.S. Department of Defense standards. An officer
of the Company shall certify in writing that CPS Energy’s data and Secure Information has
been disposed of properly.
8. Externally Hosted Websites. To the extent any externally hosted website (third party hosted
solution) is created for CPS Energy by the Company or used by the Company to implement
or provide the Services, the following minimum requirements must be maintained:
a. Review of current SSAE–16 (SOC 1 Type 2), SOC 2 Type 2.
b. Password requirements:
i. Password complexity (8 characters, upper case/lower case/special character
or number);
ii. Passwords must be changed every 90 days (required for externally hosted
business applications used by CPS Energy personnel);
iii. Maintain password history of last five previously used passwords;
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iv. Have a password recovery tool;
v. Support the use of CAPTCHA; and
vi. User ID and Passwords must be sent over HTTPS
c. Support federation services/technology to support single sign–on.
d. Support secure file transfers via PGP over FTP, SFTP or HTTPS.
e. Provide website application time–out after an extended period of inactivity
(maximum of thirty minutes).
f. Provide administrative or authorized contact support, such as:
i. Online administrative portal for CPS Energy to perform security
administration and view audit trails, logs, or reports. Administrative portal
should support all IT Security requirements listed above; and
ii. Provide manual mechanism for CPS Energy representative to promptly
disable and prevent further employee access.
g. The internet web site must be accessible using the current Microsoft Internet
Explorer supported by CPS Energy or higher.
h. If website needs to meet PCI compliance for credit card processing, then website
must meet the then–current PCI standards at all times. For a minimum of 90 days,
Company must provide audit trails, logging, or security reports that track activities
performed by users. Audit trails should include: identity of the user performing
activity, date, and time stamp. At a minimum, audit trails, logging, or security reports
must be provided for the following activities:
i. User logins (successful and failed login attempts);
ii. Password recoveries (successful and failed attempts); and
iii. User access report, that provides complete user list with last successful login
date.
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Exhibit 2
Minimum Insurance Requirements
(Class 3)
1.01
Company shall purchase and maintain in full force and effect, at its own expense, the
following minimum insurance coverages and limits:
1.02
Statutory Worker’s Compensation and Employer’s Liability Insurance with minimum limits
of not less than indicated below. The policy must be in the name of the Company or contain
an endorsement naming CPS Energy as the Alternate Employer.
Required Limits – Statutory limits, with Employer’s Liability Coverage as follows:
Bodily Injury by Accident
Bodily Injury by Disease Each Employee
Bodily Injury by Disease Policy Limit
1.03
$1,000,000.00
$1,000,000.00
$1,000,000.00
Commercial General Liability Insurance, including the coverages identified below, with
minimum limits indicated below.
Each Occurrence
$1,000,000.00
General Aggregate
$2,000,000.00
The Commercial General Liability Policy will include the following coverage’s where
applicable:
1.
2.
3.
4.
5.
6.
1.04
Bodily injury & Property damage on an “Occurrence” basis
Premises & Operations
Independent Companys
Products/Completed Operations
Personal Injury Liability
Contractual Liability
Business Automobile Insurance for all owned, non-owned, and hired vehicles.
Combined Single Limit BI & PD
1.05
Excess Liability Coverage, following form, over Employers’ Liability, Commercial
Liability, Commercial Automobile Liability Policies, with the limits shown below.
Excess Liability Coverage
1.06
$500,000.00
$1,000,000.00
Each of Company’s liability insurance policies shall be primary to and non-contributing
with, any other insurance carried by, or for the benefit of the CPS Energy. Insurance may
be provided under a single limit policy, or two or more policies with combined limits for the
required amount of coverage.
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1.07
Company’s workers’ compensation, employers’ liability, commercial automobile liability,
commercial general liability, and excess liability insurance policies shall be endorsed to
waive all rights of subrogation in favor of CPS Energy and its affiliates, and their
shareholders, directors, officers, members, employees and agents.
1.08
CPS Energy and its employees, officers, directors, owners, advisors, consultants and agents
shall be included as additional insureds without limitation on all policies (except workers’
compensation), under the form of additional insured endorsement providing the maximum
protection to CPS Energy allowed by applicable law. Further, Company represents and
warrants that:
(a)
All such policies will be endorsed to reflect thirty (30) days’ notice of cancellation
to CPS Energy. Company shall not cause or permit its insurance to be canceled,
reduced, restricted, limited, or invalidated.
(b)
Upon request by CPS Energy, Company shall provide true copies of the insurance
policies and policy endorsements as required in this Exhibit from issuing insurance
Company(s).
1.09
All Company’s insurance shall be issued by insurance carriers licensed to do business in
Texas at the time the policy is issued and rated by A.M. Best Company as A-VII or better,
confirmed by one or more insurance certificates listing CPS Energy’s name and address as
a Certificate Holder, and list the name of Project as described in this Agreement and the
name and phone number of the broker who prepared the certificate. Certificates of insurance
shall be prepared on an Acord form 25-S.
1.10
With respect to any coverage maintained on a “claims-made” policy form, Company shall
maintain such coverage for two (2) years following termination of this Agreement or
completion of all Services associated with this Agreement, whichever is later; provided that,
if a “claims-made” policy is maintained, the retroactive date must precede the date of
commencement of Services under this Agreement.
1.11
Company shall not commence Services under this Agreement until Company has obtained
all required insurance and until such insurance has been received and approved by
CPS Energy. Company’s failure to fulfill these insurance requirements within ten (10) days
after receipt of CPS Energy’s notice to proceed shall not be considered cause for any
adjustment to Company’s compensation or schedule. CPS Energy’s approval of Company’s
insurance shall not relieve or decrease the liability of Company hereunder.
1.12
If Company fails to obtain or renew the above required insurance and furnish to the
CPS Energy acceptable evidence thereof, CPS Energy shall have the right, but not the
obligation, to: (1) procure such insurance and reduce the Agreement amount by the cost
thereof; or (2) deem as material breach of this Agreement the Company’s failure to do so.
1.13
Nothing herein shall reduce or alter any obligation Company has to indemnify, defend or
hold harmless the Indemnified Parties identified in the Agreement.
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1.14
In the event Company enters into a subcontract with a Subcontractor, the Company will
require the Subcontractor to procure at a minimum all insurance specified to be carried by
the Company, in the like form specified herein.
1.15
Company and, as applicable, its Subcontractorss shall bear all risks and be responsible for
any uninsured loss due to policy deductibles, self-insured retentions, exclusions, limitation
inadequacy and/or absence of coverage, whether such policies are purchased by Company,
Subcontractor and/or CPS Energy.
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Exhibit 3
CPS Energy Security Policies
[Attached]
Exhibit C - IT Security Policies NERC (updated 7-6-2015).pdf
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Exhibit 4
Statement Of Work
STATEMENT OF WORK










Perform site survey and preparation
Submit DG Application installation
Secure necessary permits prior to installation
Furnish and install structural supports for a ground mounted system - mounting/racking
equipment, foundations, etc.
Furnish and install all electrical equipment required to energize the system at the specified
interconnection point. This includes PV modules, inverters, combiner boxes, conduit,
connecters, wire, disconnects, etc. – refer to diagrams on pg 29 & 30.
Furnish and install equipment necessary for proper grounding
Clean the work area at the job site upon completion
Test and commission the PV system
Complete system documentation (as-builts, photographs, datasheets, operations manual,
etc)
Provide system overview to CPS Energy staff
System Requirements
Size: 20 kWac
Voltage: 480
No. of Phases: 3
Communications: The inverter must have a communication interface for integration purposes.
Ethernet connectivity with DNP3 protocol is preferred.
Efficiency: The minimum module (panel) efficiency shall be 15%.
Codes & Standards: The design and installation must be performed in accordance with
minimum requirements of the National Electrical Code (NEC), all applicable local codes, and
comply with industry best practices. Please refer to CPS Energy’s DG Manual for more
information.
https://www.cpsenergy.com/content/dam/corporate/en/Documents/Distributed_Generation_Man
ual_2014.pdf
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Proposed Project Schedule (Milestones)
Contractor Selection – November 13, 2015
Contract Execution – December 4, 2015
DG Application Submittal – December 11, 2015
Construction Start – December 21, 2015
System Test and Commission – January 20, 2015
Documentation Submittal – January 27, 2015
Training & Overview – January 29, 2015
Interconnection Diagram
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Meter Rack Elevation Diagram
CPS Energy Responsibility:
1. 3 - Code 22 meter socket
2. 3 - Code 10 CT Enclosure, with 2 ea. 200:5 CT’s
3. 1 – Code 15 Communication Enclosure
4. Penetration into the transformer with 3” Conduit to Gutter
5. Install and terminate conductors at transformer spades (size to be determined)
6. Construct Meter Rack with equipment as shown (meter sockets, CT enclosures, CT’s,
appropriate cables, service disconnects, etc)
7. Install Ground bonding in accordance with code
8. Coordinate outage with Customer
9. Remove existing metering CT’s and VTPAK in transformer secondary, meter socket, and
meter control cable.
10. Furnish materials as needed, equipment sized to code
CPS Energy Contractor to provide:
1. Terminate all conductors from the solar system through the CT enclosure to the Solar
Disconnect at the Meter Rack. CT’s will be required to be looped twice with uncut
conductors to reduce the CT ratio from 200:5 to 50:5
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Exhibit 5
Military Base Subcontractor Addendum
This addendum (the “Addendum”) is a part of, and is governed by, the photovoltaic microgrid
system agreement (the “Agreement”) entered into between [●] (“Company”) and the
City of San Antonio, acting by and through City Public Service Board (“CPS Energy”). Capitalized
terms used in this Addendum and not otherwise defined shall have the meaning given in the
Agreement. In the event of a conflict between the Agreement and this Addendum, this Addendum
shall control.
1. Company, as a subcontractor to CPS Energy, shall perform Work or provide Services
pursuant to the Agreement on a United States military installation – Joint Base San Antonio
(“JBSA” or the “Site”). The Site is maintained pursuant to the United States Department of
Defense or its authorized agencies (the “Government”).
2. Company shall observe and comply with all ordinances, laws, requirements and regulations
of all units of government and governmental agencies having jurisdiction over any aspect of
the Work. Company shall protect and indemnify CPS Energy and CPS Energy’s employees,
officers, trustees and agents against any loss, claim, expense or liability arising from or based
on any violation of the same. Company represents and warrants that it will ensure that its
employees, subcontractors and subcontractors’ employees comply with all Government, Site
and security rules, regulations, policies and guidelines. Company shall indemnify and hold
harmless CPS Energy, its agents and representatives, from and against any damages, losses,
suits, demands or liability arising out of any claim that Company, its employees and/or its
subcontractors or their employees failed to comply with the Government’s site and security
rules, regulations, policies and guidelines.
3. Company’s schedule of Work will be coordinated with CPS Energy’s field representative
and approved by JBSA’s 502d Civil Engineer Squadron (“502d CES”).
4. Prior to commencing any Work or Services, Company must supply the following
information to CPS Energy:
 Product Data
 Schedule
 Accident Prevention Plan
 Site Safety Plan
 Quality Control Plan
 Product Sample
 Maintenance Data
 Warranty of Construction
5. As applicable in performing the Work or Services, Company shall:

PR # 10483675
appoint a Project Manager to serve as a single point of contact and liaison;
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
obtain all necessary permits and conduct field verification surveys as required by the
Government prior to the beginning of any Work or Services at the Site.

attend a pre-construction site visit to verify existing site conditions, to be scheduled
by the assigned CPS Energy field representative.

coordinate the Work and entry daily to the Site with the CPS Energy field
representative, 502d CES’s quality assurance representative, and any identified
project manager or building manager(s).

provide written weekly progress reports through email to CPS Energy’s field
representative.

confirm that all personnel performing Work or Services at the Site shall have as a
minimum National Agency Check with Local Checks and Credit (NACLC)
investigation or have been properly vetted through JBSA’s Security Forces Squadron
(SFS) for execution of all applicable security background checks. The Company
shall provide the Government with security clearance and/or other information
necessary for entry to facilities for employees performing Work or Services.
Information for US citizens must be at least ten (10) business days prior to personnel
reporting to the work site and all non US citizens must provide information at least
thirty (30) days prior to personnel reporting to the work site.

conduct all Work during normal working hours -- Monday through Friday (excluding
Federal holidays) from 7:00 a.m. to 5:00 p.m. Weekend and after hours Work will
need the prior approval of the CPS Energy field representative.

provide all supervision, labor, materials, equipment, supplies and transportation
necessary to perform all contracted work. All Work shall comply with all State, local
and Federal laws and regulations, and applicable code requirements.

provide its own toilet facilities at the worksite.

leave the work area in a clean manner at the end of each work day. All project
generated debris and waste shall be removed from Site and disposed of at an
appropriate location off-post, daily, weekly or at the end of task, as specified by the
CPS Energy representative. All removed fixtures must be disposed of in accordance
with local, State and/or Federal environmental regulations.

obtain all permits and approval for any excavation from the Government prior to
implementation of any excavation measures.

obtain all necessary permits and conduct field verification survey prior to the
engineering design and construction start.

comply with all applicable Engineer Technical Letters (ETL)
(http://wbdg.org/ccb/browse_doc.php?d=3509).
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
obtain all permits and approval for any traffic control from the Government prior to
implementation of any traffic control measures. Company is responsible for public
safety and compliance with applicable laws concerning traffic control, signage, cones
and special barricades at the Site.

remove and dispose all materials from Site in accordance with local, City, State and
Federal code requirements. Company must provide legal documentation for all
hazardous waste disposal.

satisfy all current CPS Energy rebate requirements and complete all applications and
documents for customer, where applicable To review all mandatory CPS Energy
rebate qualifications visit: www.cpsenergy.com/Commercial/Rebates. Company
shall provide documentation from CPS Energy indicating approved rebate to 502d
CES representative.
6. Flow Down Clauses.
a. CPS Energy is a government contractor under an Areawide Public Utilities Contract
(Contract No. GS-00P-08-BSD-0552) and related Task Orders with the General
Services Administration of the United States Government. Company agrees that
each of the clauses contained in the Federal Acquisition Regulations attached hereto
as Attachment 1, shall, as if set forth herein in full text, be incorporated into and form
a part of this Addendum, and Company shall comply therewith if the amount of the
Agreement and the circumstances surrounding its performance require CPS Energy
to include such clause in contracts between CPS Energy and others.
b. Upon written request, CPS Energy will provide the full text of any of the clauses
identified on Attachment 1 and incorporated herein by reference. The full text of a
clause may be accessed electronically at this address: www.acquisition.gov
c. Company represents and warrants that Company is not debarred, suspended or
proposed for debarment as a contractor or subcontractor to any department, agency
or other division of the United States Government.
7. Warranty Documentation: Upon final acceptance, Company shall provide to CPS Energy
an inventory list of all equipment installed at the Site. This list shall include vendor, model
number, serial number, warranty start date, Company’s warranty expiration date, and
equipment manufacturer’s warranty expiration date.
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ATTACHMENT 1 (to Exhibit 5)
FAR Clause
reference
Description
52.202-1
52.203-3
52.203-5
52.203-6
52.203-7
Definitions
Gratuities
Covenant against contingent fees
Restrictions on Subcontractor sales to the Government
Anti-kickback Procedures
52.203-8
Cancellation, Rescission, and recovery of Funds for Illegal or
Improper activity
52.203-10
52.203-12
52.204-3
52.204-7
Price or Fee adjustments for Illegal or improper activity
Limitations on payments to influence certain federal transactions
Taxpayer identification
System for award management
52.209-6
Protecting the Government's interest when subcontracting with
contractors debarred, suspended or proposed for debarment
52.216-21
52.219-8
52.219-9
52.219-16
52.222-3
52.222-26
52.222-35
52.222-36
52.222-38
52.223-6
52.232-25
52.232-33
Requirements
Utilization of small business concerns
Small business subcontracting plan
Liquidated damages-subcontracting plan
Convict labor
Equal opportunity
Equal opportunity for veterans
Equal opportunity for workers with disabilities
Compliance with veterans' employment reporting requirements
Drug free workplace
Prompt payment
Payment by electronic funds transfer-system for award management
52.232-34
Payment by electronic funds transfer-other than system for award
management
52.232-35
Designation of office for Government receipt of electronic funds
transfer information
52.232-36
52.232-37
52.233-1
Payment by third party
Multiple payment arrangements
Disputes
52.236-9
Protection of existing vegetation, structures, equipment, utilities, and
improvements
52.237-2
52.241-2
52.241-3
52.241-4
52.241-5
52.241-6
Protection of government buildings, equipment and vegetation
Order of precedence-utilities
Scope and duration of contract
Change in class of service
Contractor's facilities
Service provisions
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FAR Clause
reference
Description
52.241-8
Change in rates or terms and conditions of service for unregulated
services
52.241-9
52.241-10
52.241-11
52.241-12
52.241-13
52.242-13
52.244-5
52.249-2
52.249-8
52.253-1
Connection charge
Termination liability
Multiple service locations
Nonrefundable, nonrecurring service charges
Capital credits
Bankruptcy
Competition in subcontracting
Termination for convenience of the Government (fixed-price)
Default (Fixed-price supply and service)
Computer generated forms
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EXHIBIT B
PROPOSAL
CPS Energy
P.O. Box 2906
San Antonio, Texas 78299-2906
Attention: Karen T. Smith
Supply Chain
RE: PHOTOVOLTAIC SYSTEM FOR MICROGRID
Request for Proposal No: 7000134217
The Contractor, having read and examined the Specifications and associated Contract Documents for
the above designated Work and having visited the representative site(s) of the proposed construction
and thoroughly familiarized self with the factors which will affect the execution of the Work and the
cost thereof, does hereby propose to perform all the Work as set forth in this Proposal. All prices
stated herein are firm and shall not be subject to escalation provided this Proposal is accepted within
one-hundred twenty (120) days after the official opening of Proposals.
The Contractor hereby declares that the following list states any and all variations from and exceptions
to the requirements of the Contract Documents and that, otherwise, it is the intent of this Proposal that
the Work will be performed in strict accordance with the Contract Documents.
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Contractor will complete the Work in accordance with the Contract Documents for the total lump
sum price of
(price written in words)
($
)
(price in numbers)
This total lump sum consists of the following:
Materials:
(price written in words)
($
)
(price in numbers)
(price written in words)
($
)
(price in numbers)
(price written in words)
($
)
(price in numbers)
Skill or Labor:
Other:
The Contractor agrees to start construction and to complete the Work in accordance with the schedule
set forth in these Contract Documents. It is understood that all construction shall be complete and all
construction plant and facilities shall be removed from CPS Energy property as scheduled. The
Contractor fully understands that the time of completion is of the essence of the Contract.
Dated this
day of, 2015.
Offeror
By
Title
ATTEST:
Business Address of Offeror
State of Incorporation
Address of Principal Office
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EXHIBIT C
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EXHIBIT D
CPS ENERGY BUSINESS QUESTIONNAIRE
(Offeror to complete and provide)
https://www.cpsenergy.com/content/dam/corporate/en/Documents/Procurement/SBA_Questionnaire.pdf
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EXHIBIT E
CPS ENERGY SUBCONTRACTING DOCUMENTS
(Offeror to complete and provide)
https://www.cpsenergy.com/content/dam/corporate/en/Documents/Procurement/subcontract_docs.docx
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