and reliability of bicycle, pedestrian, and transit modes while maintaining automobile and goods movement demands. The Project will conduct engagement with community stakeholders, local disadvantaged communities, property owners, include an existing conditions analysis, identification of transportation solutions, funding and implementation strategies, and a compiled summary report to advance to subsequent stages of implementation.
The corridor plan will be developed to promote public health, job growth, new housing opportunities, and redevelopment while supporting disadvantaged communities along the project corridor. The Project will leverage transportation solutions to support existing land uses and new housing projects and prepare the City to successfully implement a re-envisioned Orangethorpe Avenue.
The OCHCA, values the efforts the City has made to improve active transportation throughout Buena Park and supports the Orangethorpe Avenue Complete Streets Planning Study. We look forward to continuing working with the City to create a collaborative Complete Streets vision for Orangethorpe Avenue that reflects community input and improves transportation needs.
Sincerely,
LaRisha Baker, MBA
Deputy Chief of Public Health Services
Environmental Health & Health Promotion and Community Planning Division
Buena Park Letter of Support- Orangethorpe Ave Complete Streets Planning Study September 21, 2023
Attachment C
Caltrans E-76 Authorization
“Provide a safe, sustainable, integrated and efficient transportation system to enhance California’s economy and livability”
STATE OF CALIFORNIA- - - - - - - CALIFORNIA STATE TRANSPORTATION AGENCY GAVIN NEWSOM, Governor
DEPARTMENT OF TRANSPORTATION
DISTRICT 12
1750 EAST 4TH STREET, SUITE 100
SANTA ANA, CA 92705
PHONE (657) 328-6000
FAX (657) 328-6522
TTY 711
www.dot.ca.gov/caltrans-near-me/district12
Making Conservation
a California Way of Life.
January 7, 2025
Dear Ms. Mina Mikhael
We have reviewed and processed your obligation submittal for the above- referenced project through Caltrans Headquarters and the Federal Highway Administration (FHWA). You are hereby authorized to begin the Preliminary Engineering phase of your project. Enclosed is a copy of the authorizing document (E-76) for your records.
If you plan to utilize private/outside consultant services, please be reminded of the Consultant Selection and Audit Process as outlined in Chapter 10 of our Local Assistance Procedures Manual (LAPM).
Effective October 1, 2017, if a consultant is to be used to execute the Construction Engineering / Management portion, then local agencies must submit a completed Exhibit 10-C for new or amended federally funded A&E consultant contracts online through http://dlaaeoversight.dot.ca.gov/fmi/webd for Caltrans review and acceptance prior to contract award. Execution of an A&E consultant contract without Caltrans acceptance of Exhibit 10-C may result in ineligibility for reimbursement. The Office of Guidance and Oversight (GO) will notify the local agency and DLAE of Exhibit 10-C acceptance or rejection within 5 business days. If there are any changes to the contract after Caltrans acceptance of Exhibit 10-C, the local agency must notify the Office of GO and provide a copy of an updated Exhibit 10-C and all contract amendments to [email protected].
For non-A&E contract please see chapter 10 section 10.3. DBE consideration is required on all federal-aid funded contract including non-A&E.
STPLNI-5310(046)
Orangethorpe Ave. Complete
Street Planning
City of Buena Park
Construction Non-infrastructure
Ms. Mina Mikhael
Director of Public Works / City Engineer
6650 Beach Blvd.
Buena Park, CA,90621
Ms. Mina Mikhael
STPLNI-5310(046)
January 7, 2025
“Provide a safe, sustainable, integrated and efficient transportation system to enhance California’s economy and livability”
Please be reminded of the invoice processing requirements and reimbursement process in Chapter 5 of the LAPM. Invoices for reimbursement cannot be submitted until after funds are encumbered via an executed Program Supplemental Agreement (PSA) and an executed Finance Letter.
If you have any questions, please call Reza Faraz at (805) 732-9812
Sincerely,
Jonathan Lawhead
District Local Assistance Engineer
Attachment
E-76 Authorization
C:
Deepthi Arabolu
Jaden Miller
Attachment D
DBE Commitment
Local Assistance Procedures Manual Exhibit 10-I Notice to Proposers DBE Information
January 2025
Exhibit 10-I: Notice to Proposers DBE Information
(federally funded projects only)
The Local Public Agency (LPA) has established a DBE goal for this Contract of ____________%
1. TERMS AS USED IN THIS DOCUMENT
• The term “Disadvantaged Business Enterprise” or “DBE” means a for-profit small business concern owned and controlled by a socially and economically disadvantaged person(s) as defined in Title 49, Code of Federal Regulations (CFR), Part 26.5.
• The term “Agreement” also means “Contract.”
• LPA also means the local entity entering into this contract with the Contractor or Consultant. • The term “Small Business” or “SB” is as defined in 49 CFR 26.65.
2. AUTHORITY AND RESPONSIBILITY
A. DBEs and other small businesses are strongly encouraged to participate in the performance of Contracts financed in whole or in part with federal funds (see 49 CFR 26: Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Progr ams).
The Consultant must ensure that DBEs and other small businesses have the opportunity to participate in the performance of the work that is the subject of this solicitation and should take all necessary and reasonable steps for this assurance. The proposer must not discriminate on the basis of race, color, national origin, or sex in the award and performance of subcontracts.
B. Proposers are encouraged to use services offered by financial institutions owned and controlled by DBEs.
3. SUBMISSION OF DBE INFORMATION
If there is a DBE goal on the contract, Exhibit 10-O1: Consultant Proposal DBE Commitment must be included in the Proposal. In order for a proposer to be considered responsible and responsive, the proposer must make good faith efforts to meet the goal established for the contract. If the goal is not met, the proposer must document adequate good faith efforts. All DBE participation will be counted towards meeting the contract goal; therefore, all DBE participation must be collected and reported.
Exhibit 10-O2: Consultant Contract DBE Information must be included in best qualified consultant’s executed consultant contract. Even if no DBE participation will be reported, the successful proposer must execute and return the form.
4. DBE PARTICIPATION GENERAL INFORMATION
It is the proposer’s responsibility to be fully informed regarding the requirements of 49 CFR 26, and the Department’s DBE program developed pursuant to the regulations. Particular attention is directed to the following:
A. A DBE must be a small business firm defined pursuant to 13 CFR 121 and be certified through the California Unified Certification Program (CUCP).
B. A certified DBE may participate as a prime consultant, subconsultant, joint venture partner, as a vendor of material or supplies, or as a trucking company.
C. A DBE proposer not proposing as a joint venture with a non-DBE, will be required to document one or a combination of the following:
1. The proposer is a DBE and will meet the goal by performing work with its own forces.
Local Assistance Procedures Manual Exhibit 10-I Notice to Proposers DBE Information
January 2025
2. The proposer will meet the goal through work performed by DBE subconsultants, suppliers or trucking companies.
3. The proposer, prior to proposing, made adequate good faith efforts to meet the goal.
D. A DBE joint venture partner must be responsible for specific contract items of work or clearly defined portions thereof. Responsibility means actually performing, managing, and supervising the work with its own forces. The DBE joint venture partner must share in the capital contribution, control, management, risks and profits of the joint venture commensurate with its ownership interest.
E. A DBE must perform a commercially useful function pursuant to 49 CFR 26.55, that is, a DBE firm must be responsible for the execution of a distinct element of the work and must carry out its responsibility by actually performing, managing and supervising the work.
F. The proposer must list only one subconsultant for each portion of work as defined in their proposal and all DBE subconsultants should be listed in the bid/cost proposal list of subconsultants.
G. A prime consultant who is a certified DBE is eligible to claim all of the work in the Contract toward the DBE participation except that portion of the work to be performed by non-DBE subconsultants.
5. COUNTING DBE PARTICIPATION
Materials or supplies purchased from DBEs count towards the DBE goal under the following conditions:
A. If the materials or supplies are obtained from a DBE manufacturer, count 100 percent of the cost of the materials or supplies. A DBE manufacturer is a firm that operates or maintains a factory, or establishment that produces on the premises the materials, supplies, articles, or equipment required under the Contract and of the general character described by the specifications.
B. If the materials or supplies purchased from a DBE regular dealer, count 60 percent of the cost of the materials or supplies. A DBE regular dealer is a firm that owns, operates or maintains a store, warehouse, or other establishment in which the materials, supplies, articles or equipment of the general character described by the specifications and required under the Contract are bought, kept in stock, and regularly sold or leased to the public in the usual course of business. To be a DBE regular dealer, the firm must be an established, regular business that engages, as its principal business and under its own name, in the purchase and sale or lease of the products in question. A person may be a DBE regular dealer in such bulk items as petroleum products, steel, cement, gravel, stone or asphalt without owning, operating or maintaining a place of business provided in this section.
C. If the person both owns and operates distribution equipment for the products, any supplementing of regular dealers’ own distribution equipment must be, by a long-term lease agreement and not an ad hoc or Agreement-by-Agreement basis. Packagers, brokers, manufacturers’ representatives, or other persons who arrange or expedite transactions are not DBE regular dealers within the meaning of this section.
D. Materials or supplies purchased from a DBE, which is neither a manufacturer nor a regular dealer, will be limited to the entire amount of fees or commissions charged for assistance in the procurement of the materials and supplies, or fees or transportation charges for the delivery of materials or supplies required on the job site, provided the fees are reasonable and not excessive as compared with fees charged for similar services
6. RESOURCES
A. The CUCP database includes the certified DBEs from all certifying agencies participating in the CUCP. If you believe a firm is certified that cannot be located on the database, please email [email protected] for assistance.
B. Access the CUCP database from the Department of Transportation, Office of Civil Rights website. For guidance on how to search for certified firms using the CUCP database, please visit: DBE Goal Setting | Caltrans
Local Assistance Procedures Manual Exhibit 10-O1
Consultant Proposal DBE Commitment
EXHIBIT 10-O1 CONSULTANT PROPOSAL DBE COMMITMENT
1. Local Agency: 2. Contract DBE Goal:
3. Project Description:
4. Project Location:
5. Consultant's Name: 6. Prime Certified DBE:
7. Description of Work, Service, or Materials
Supplied
8. DBE
Certification
Number
Local Agency to Complete this Section
17. Local Agency Contract Number:
18. Federal-Aid Project Number:
19. Proposed Contract Execution Date:
20. 21. Local Agency Representative's Signature 22. Date
23. Local Agency Representative's Name 24. Phone
25. Local Agency Representative's Title
C
onsultant’s Ranking after Evaluation: __________________________ Local Agency certifies that all DBE certifications are valid and information on this form is complete and accurate.
9. DBE Contact Information
11. TOTAL CLAIMED DBE PARTICIPATION
10. DBE %
%
IMPORTANT: Identify all DBE firms being claimed for credit, regardless of tier. Written confirmation of each listed DBE is required.
12. Preparer's Signature 13. Date
14. Preparer's Name 15. Phone
16. Preparer's Title
DISTRIBUTION: Original – Included with consultant’s proposal to local agency.
ADA Notice: For individuals with sensory disabilities, this document is available in alternate formats. For information call (916) 654-6410 or TDD (916) 654- 3880 or write Records and Forms Management, 1120 N Street, MS-89, Sacramento, CA 95814.
LPP 18-01 Page 1 of 2
January 2019
Local Assistance Procedures Manual Exhibit 10-O1
Consultant Proposal DBE Commitment
INSTRUCTIONS – CONSULTANT PROPOSAL DBE COMMITMENT
CONSULTANT SECTION
1. Local Agency - Enter the name of the local or regional agency that is funding the contract.
2. Contract DBE Goal - Enter the contract DBE goal percentage as it appears on the project advertisement.
3. Project Location - Enter the project location as it appears on the project advertisement.
4. Project Description - Enter the project description as it appears on the project advertisement (Bridge Rehab, Seismic Rehab, Overlay, Widening, etc.).
5. Consultant’s Name - Enter the consultant’s firm name.
6. Prime Certified DBE - Check box if prime contractor is a certified DBE.
7. Description of Work, Services, or Materials Supplied - Enter description of work, services, or materials to be provided. Indicate all work to be performed by DBEs including work performed by the prime consultant’s own forces, if the prime is a DBE. If 100% of the item is not to be performed or furnished by the DBE, describe the exact portion to be performed or furnished by the DBE. See LAPM Chapter 9 to determine how to count the participation of DBE firms.
8. DBE Certification Number - Enter the DBE’s Certification Identification Number. All DBEs must be certified on the date bids are opened.
9. DBE Contact Information - Enter the name, address, and phone number of all DBE subcontracted consultants.
Also, enter the prime consultant’s name and phone number, if the prime is a DBE.
10. DBE % - Percent participation of work to be performed or service provided by a DBE. Include the prime consultant if the prime is a DBE. See LAPM Chapter 9 for how to count full/partial participation.
11. Total Claimed DBE Participation % - Enter the total DBE participation claimed. If the total % claimed is less than item “Contract DBE Goal,” an adequately documented Good Faith Effort (GFE) is required (see Exhibit 15-H DBE Information - Good Faith Efforts of the LAPM).
12. Preparer’s Signature - The person completing the DBE commitment form on behalf of the consultant’s firm must sign their name.
13. Date - Enter the date the DBE commitment form is signed by the consultant’s preparer.
14. Preparer’s Name - Enter the name of the person preparing and signing the consultant’s DBE commitment form.
15. Phone - Enter the area code and phone number of the person signing the consultant’s DBE commitment form.
16. Preparer’s Title - Enter the position/title of the person signing the consultant’s DBE commitment form.
LOCAL AGENCY SECTION
17. Local Agency Contract Number - Enter the Local Agency contract number or identifier.
18. Federal-Aid Project Number - Enter the Federal-Aid Project Number.
19. Proposed Contract Execution Date - Enter the proposed contract execution date.
20. Consultant’s Ranking after Evaluation – Enter consultant’s ranking after all submittals/consultants are evaluated. Use this as a quick comparison for evaluating most qualified consultant.
21. Local Agency Representative’s Signature - The person completing this section of the form for the Local Agency must sign their name to certify that the information in this and the Consultant Section of this form is complete and accurate.
22. Date - Enter the date the DBE commitment form is signed by the Local Agency Representative.
23. Local Agency Representative’s Name - Enter the name of the Local Agency Representative certifying the consultant’s DBE commitment form.
24. Phone - Enter the area code and phone number of the person signing the consultant’s DBE commitment form.
25. Local Agency Representative Title - Enter the position/title of the Local Agency Representative certifying the consultant’s DBE commitment form.
LPP 18-01 Page 2 of 2
January 2019
Local Assistance Procedures Manual Exhibit 10-O2
Consultant Contract DBE Commitment
EXHIBIT 10-O2 CONSULTANT CONTRACT DBE COMMITMENT
1. Local Agency: 2. Contract DBE Goal:
3. Project Description:
4. Project Location:
5. Consultant's Name: 6. Prime Certified DBE: 7. Total Contract Award Amount:
8. Total Dollar Amount for ALL Subconsultants: 9. Total Number of ALL Subconsultants:
10. Description of Work, Service, or Materials
Supplied
11. DBE
Certification
Number
12. DBE Contact Information
13. DBE
Dollar
Amount
Local Agency to Complete this Section
14. TOTAL CLAIMED DBE PARTICIPATION
20. Local Agency Contract
Number:
21. Federal-Aid Project Number:
22. Contract Execution
Date:
Local Agency certifies that all DBE certifications are valid and information on this form is complete and accurate.
23. Local Agency Representative's Signature 24. Date
25. Local Agency Representative's Name 26. Phone
27. Local Agency Representative's Title
%
IMPORTANT: Identify all DBE firms being claimed for credit, regardless of tier. Written confirmation of each listed DBE is required.
15. Preparer's Signature 16. Date
17. Preparer's Name 18. Phone
19. Preparer's Title
DISTRIBUTION: 1. Original – Local Agency
2. Copy – Caltrans District Local Assistance Engineer (DLAE). Failure to submit to DLAE within 30 days of contract execution may result in de-obligation of federal funds on contract.
ADA Notice: For individuals with sensory disabilities, this document is available in alternate formats. For information call (916) 654- 6410 or TDD (916) 654- 3880 or write Records and Forms Management, 1120 N Street, MS-89, Sacramento, CA 95814.
July 23, 2015
Local Assistance Procedures Manual Exhibit 10-O2
Consultant Contract DBE Commitment
INSTRUCTIONS – CONSULTANT CONTRACT DBE COMMITMENT
CONSULTANT SECTION
1. Local Agency - Enter the name of the local or regional agency that is funding the contract.
2. Contract DBE Goal - Enter the contract DBE goal percentage as it appears on the project advertisement.
3. Project Description - Enter the project description as it appears on the project advertisement (Bridge Rehab, Seismic Rehab, Overlay, Widening, etc).
4. Project Location - Enter the project location as it appears on the project advertisement.
5. Consultant’s Name - Enter the consultant’s firm name.
6. Prime Certified DBE - Check box if prime contractor is a certified DBE.
7. Total Contract Award Amount - Enter the total contract award dollar amount for the prime consultant.
8. Total Dollar Amount for ALL Subconsultants – Enter the total dollar amount for all subcontracted consultants.
SUM = (DBEs + all Non-DBEs). Do not include the prime consultant information in this count.
9. Total number of ALL subconsultants – Enter the total number of all subcontracted consultants. SUM = (DBEs + all Non-DBEs). Do not include the prime consultant information in this count.
10. Description of Work, Services, or Materials Supplied - Enter description of work, services, or materials to be provided. Indicate all work to be performed by DBEs including work performed by the prime consultant’s own forces, if the prime is a DBE. If 100% of the item is not to be performed or furnished by the DBE, describe the exact portion to be performed or furnished by the DBE. See LAPM Chapter 9 to determine how to count the participation of DBE firms.
11. DBE Certification Number - Enter the DBE’s Certification Identification Number. All DBEs must be certified on the date bids are opened.
12. DBE Contact Information - Enter the name, address, and phone number of all DBE subcontracted consultants.
Also, enter the prime consultant’s name and phone number, if the prime is a DBE.
13. DBE Dollar Amount - Enter the subcontracted dollar amount of the work to be performed or service to be provided. Include the prime consultant if the prime is a DBE. See LAPM Chapter 9 for how to count full/partial participation.
14. Total Claimed DBE Participation - $: Enter the total dollar amounts entered in the “DBE Dollar Amount” column. %: Enter the total DBE participation claimed (“Total Participation Dollars Claimed” divided by item “Total Contract Award Amount”). If the total % claimed is less than item “Contract DBE Goal,” an adequately documented Good Faith Effort (GFE) is required (see Exhibit 15-H DBE Information - Good Faith Efforts of the LAPM).
15. Preparer’s Signature - The person completing the DBE commitment form on behalf of the consultant’s firm must sign their name.
16. Date - Enter the date the DBE commitment form is signed by the consultant’s preparer.
17. Preparer’s Name - Enter the name of the person preparing and signing the consultant’s DBE commitment form.
18. Phone - Enter the area code and phone number of the person signing the consultant’s DBE commitment form.
19. Preparer’s Title - Enter the position/title of the person signing the consultant’s DBE commitment form.
LOCAL AGENCY SECTION
20. Local Agency Contract Number - Enter the Local Agency contract number or identifier.
21. Federal-Aid Project Number - Enter the Federal-Aid Project Number.
22. Contract Execution Date - Enter the date the contract was executed.
23. Local Agency Representative’s Signature - The person completing this section of the form for the Local Agency must sign their name to certify that the information in this and the Consultant Section of this form is complete and accurate.
24. Date - Enter the date the DBE commitment form is signed by the Local Agency Representative.
25. Local Agency Representative’s Name - Enter the name of the Local Agency Representative certifying the consultant’s DBE commitment form.
26. Phone - Enter the area code and phone number of the person signing the consultant’s DBE commitment form.
27. Local Agency Representative Title - Enter the position/title of the Local Agency Representative certifying the consultant’s DBE commitment form.
July 23, 2015
Attachment E
Draft Professional Services
Agreement
PAGE 1 OF 35
CITY OF BUENA PARK
PROFESSIONAL SERVICES AGREEMENT
DATE:
SERVICES: Professional Services
PROJECT: Orangethorpe Avenue Complete Streets Planning Study
PARTIES TO THE AGREEMENT:
“CITY”: City of Buena Park, a California Municipal Corporation
City Representative: Name: Mina Mikhael
Title: Director of Public Works/
City Engineer
Tel.: (714) 562-3672
Email: [email protected]
“CONSULTANT”: [NAME ], a [business entity, i.e. LLC, LP]
Consultant
Representative:
Name:
Title:
Tel.:
Email:
SUMMARY OF TERMS:
Start Date:
End Date:
Contract Value: $___________
Services a “Public Work”: NO [___] YES [___] (add “PW Exhibit”)
Community Workforce Agreement: NO [___] YES [___] (add “CWA Exhibit”)
Insurance Approved By Risk Management: NO [___] YES [___]
APPROVED BY: (___) Department Head (___) City Manager (select one) Contract Value ≤ $10,000 Contract Value ≤ $80,000
(___) City Council
Contract Value > $80,000
(“Levine Act Exhibit” Required)
AGREEMENT MUST BE FIRST EXECUTED BY CONSULTANT BEFORE IT MAY BE EXECUTED ON BEHALF OF THE CITY.
DRAFT
PAGE 2 OF 35
CITY OF BUENA PARK
PROFESSIONAL SERVICES AGREEMENT
This Professional Services Agreement (“Agreement”) is dated as of [_________ ], between the City of Buena Park, a California charter city (“ CITY”), and [NAME OF CONSULTANT], a [ BUSINESS ENTITY] ("CONSULTANT"). CITY and CONSULTANT are at times referred to herein jointly as “Parties” and individually as a “Party.”
1. TERM. The term of this Agreement shall commence on [_________ ] and shall remain in full force and effect until CONSULTANT’s full and complete performance of the Services within the time specified in the Schedule of Performance, all to CITY’s reasonable satisfaction, unless extended upon the mutual written agreement of the Parties or earlier terminated pursuant to Section 16.2 of this Agreement (“Term”).
2. SERVICES. Subject to the terms and conditions in this Agreement, CONSULTANT shall provide to CITY those services that are specifically described in Exhibit “A” (the “Services”). CITY may request changes or expansion of the Services (each a “Modification”) and in such cases the Modification to the Services, and any resulting increase or decrease in the Compensation to be paid CONSULTANT and/or any changes to the Schedule of Performance (defined below), shall be documented in a written amendment to this Agreement. Increases or decreases in Compensation resulting from any Modification to the Services shall be based on the rate specified in the Compensation Schedule (defined below), or if not specified in the Compensation Schedule at then-applicable prevailing market rate charged by CONSULTANT to other customers for the same service.
3. SCHEDULE OF PERFORMANCE. CONSULTANT shall commence providing the Services upon receipt of a written “Notice to Proceed” from the City Representative and CONSULTANT shall proceed only to the extent of such authorization. CONSULTANT shall perform all Services in the time required by the schedule of performance described in Exhibit “A” (“Schedule of Performance”), or if not specified in the Schedule of Performance in a timely and diligent manner reasonably acceptable to CITY.
4. COMPENSATION. The total compensation paid to CONSULTANT for complete performance of the Services, including any authorized reimbursable expenses, shall NOT EXCEED the total maximum sum of $_________________ (“Compensation”). Subject to the total maximum Compensation, CONSULTANT will be paid for hours worked at the hourly rates specified in Exhibit A. The specified hourly rates shall include direct salary costs, employee benefits, prevailing wages, employer payments, overhead, and fee. These rates are not adjustable for the performance period set forth in this Agreement. CONSULTANT will be reimbursed within thirty (30) days upon receipt by CITY of itemized invoices in duplicate. The Compensation specified in this section shall be the sole and exclusive consideration paid to CONSULTANT for full and complete performance of the Services and may only be increased by formal amendment to this Agreement.
5. PAYMENT.
5.1 Invoices. Each calendar month after CITY’s issuance of the Notice to Proceed, CONSULTANT shall submit an invoice to CITY for the Services performed and any authorized reimbursable expenses incurred in the immediately preceding calendar month. (Ex: invoices for Services rendered in January should be submitted in February ). The invoices shall describe in detail the Services rendered during each invoice period such as the days worked, personnel involved, number of hours worked, rates charged, milestones achieved, work product generated, DRAFT
PAGE 3 OF 35
or reimbursable expenses incurred, as applicable. CONSULTANT shall remit the invoices to the address and in the manner specified by CITY.
5.2 Payment. CITY shall review all invoices and notify CONSULTANT in writing of any disputed charges or amounts. CITY shall pay all undisputed portions of the invoice within thirty (30) calendar days after receipt . CITY is not required to make any deductions or withholdings from the compensation payable to CONSULTANT under the provisions of the Agreement, and is not required to issue W-2 Forms for income and employment tax purposes for any of CONSULTANT's assigned personnel. CONSULTANT, in the performance of its obligation hereunder, is only subject to the control or direction of CITY as to the designation of tasks to be performed and the results to be accomplished.
6. STANDARD OF SKILL. CONSULTANT shall perform all Services in the manner and according to the standards currently observed by a competent practitioner of CONSULTANT’s profession in California , and shall at all times, meet or exceed any applicable professional standards of care, workmanship, or conduct . All products of whatsoever nature that CONSULTANT delivers to CITY pursuant to this Agreement shall be prepared in a professional manner and conform to the standards of quality normally observed by a person currently practicing in CONSULTANT’s profession . The acceptance of the Services by CITY shall not operate as a release of CONSULTANT from such standards of care, workmanship, or conduct.
7. INDEPENDENT CONTRACTOR. CONSULTANT is and shall at all times remain as to CITY a wholly independent contractor. Neither CITY nor any of its agents shall have control over the conduct of CONSULTANT or any of CONSULTANT's employees or agents, except as herein set forth. CONSULTANT shall not at any time or in any manner represent that it or any of its agents or employees are in any manner agents or employees of CITY. CONSULTANT shall have no power to incur any debt, obligation, or liability on behalf of CITY or otherwise act on behalf of CITY as an agent.
7.1 CONSULTANT shall not have the status of an employee of CITY under this Agreement, or be entitled to participate in any insurance, medical care, vacation, sick leave or other benefits provided for CITY's officers or employees.
7.2 In the event that CONSULTANT, or any of its employees, agents, or subcontractors providing Services under this Agreement, claims or is determined by a court of competent jurisdiction or the California Public Employees Retirement System (“ PERS”) to be eligible for enrollment in PERS as an employee of CITY, CONSULTANT shall indemnify, defend, and hold CITY harmless for the payment of any employee and/or employer contributions for PERS benefits on behalf of CONSULTANT or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of CITY.
7.3 CONSULTANT represents that it has, or will secure at its own expense, all personnel required to perform the Services under this Agreement. All of the Services shall be performed by CONSULTANT or under its direct supervision, and all personnel engaged in the work shall be qualified to perform it. CONSULTANT reserves the right to determine the assignment of its own employees to the performance of the Services under this Agreement, but CITY reserves the right, for good cause, to require CONSULTANT to exclude any employee from performing Services on CITY's premises. Any third party person(s) employed by CONSULTANT shall be entirely and exclusively under the direction, supervision, and control of CONSULTANT. CONSULTANT hereby indemnifies and holds CITY harmless from any and all claims that may be made against CITY based DRAFT
PAGE 4 OF 35
upon any contention by any third party that an employer-employee relationship exists by reason of this Agreement.
8. ADMINISTRATION.
8.1 City’s Representative. The City Representative identified on the cover page of this Agreement shall have authority to administer this Agreement and oversee CONSULTANT’s performance of the Services, provided that an individual’s authority to amend this Agreement shall be governed by applicable provisions of the Buena Park Municipal Code. All activities performed by CONSULTANT shall be coordinated through the City Representative. CITY may change the identity of the City Representative upon written notice to CONSULTANT.
8.2 Consultant’s Representative. Consultant’s Representative identified on the cover page of this Agreement has the authority to administer this Agreement on behalf of CONSULTANT and to act, bind, and approve all matters relating to this Agreement on behalf of CONSULTANT. Consultant’s Representative shall not be replaced without the advance consent of CITY, which consent shall not be unreasonably withheld.
9. SAFETY REQUIREMENTS.
9.1 CONSULTANT shall comply with OSHA regulations applicable to CONSULTANT regarding necessary safety equipment or procedures. CONSULTANT shall comply with safety instructions issued by CITY Safety Officer and other CITY representatives. CONSULTANT personnel shall wear hard hats and safety vests at all times while working on the construction project site.
9.2 Pursuant to the authority contained in Vehicle Code §591, CITY has determined that such areas are within the limits of the project and are open to public traffic. CONSULTANT shall comply with all of the requirements set forth in Divisions 11, 12, 13, 14, and 15 of the Vehicle Code. CONSULTANT shall take all reasonabl y necessary precautions for safe operation of its vehicles and the protection of the traveling public from injury and damage from such vehicles.
9.3 CITY may issue restraint or cease and desist orders to CONSULTANT when unsafe or harmful acts are observed or reported relative to the performance of the Services.
CONSULTANT shall maintain the work sites free of hazards to persons and property result ing from its operations. CONSULTANT shall immediately report to CITY any hazardous condition noted by CONSULTANT.
9.4 Any subcontract entered into as a result of this contract, shall contain all of the provisions of this Article.
10. INDEMNIFICATION AND HOLD HARMLESS.
10.1 Purpose of Section. CONSULTANT agrees that CITY, and its elected officials, officers, employees, and agents (cumulatively “ City Indemnitees ”) shall, to the fullest extent permitted by California law, be fully protected from any loss, injury, damage, claim, liability, taxes, fees, lawsuit, cost, expense, attorneys ’ fees, litigation costs, defense costs, court costs or any other cost or damages of any kind arising out of or in any way related to CONSULTANT’s provision of the Services or performance of t his Agreement. This Section is intended by the Parties to provide the fullest protection possible under California law to CITY and the City DRAFT
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Indemnitees. CONSULTANT acknowledges that CITY would not have entered into this Agreement without the covenants and commitments of CONSULTANT in this Section 10.
10.2 Indemnification for Design Services (if applicable). Consistent with California Civil Code Section 2782.8, if and to the extent the Services are design professional services to be performed by a design professional, as that term is defined under said Section 2782.8, CONSULTANT shall, to the fullest extent permitted by law, indemnify, protect, defend, and hold the City Indemnitees harmless for all claims, demands, costs, or liability that arise out of, pertain, or relate to the negligence, recklessness , or willful misconduct of CONSULTANT, its officers, employees, or agents in said performance of the Services, excepting only liability arising from the sole negligence, active negligence, or intentional misconduct of CITY.
10.3 Indemnification for Services. Other than in the performance of design professional services by a design professional, as covered by Section 10.2 above, to the fullest extent permitted by law CONSULTANT shall, at its sole cost and expense, protect, defend, hold harmless and indemnify the City Indemnitees from and against any and all damages, costs, taxes, fees, expenses, liabilities, claims, demands, causes of action, proceedings, judgments, penalties, liens and/or losses of any nature whatsoever, including fees of accountants, attorneys and other professionals, and all costs associated therewith, and the payment of all consequential damages (collectively “Claims”), in law or equity, whether actual, alleged or threatened, which arise out of, pertain to, or relate to the acts or omissions, or willful misconduct, of CONSULTANT, or its officers, agents, servants, employees, subcontractors, materialmen, suppliers, or contractors, or their officers, agents, servants or employees (or any entity or individual that CONSULTANT shall bear the legal liability thereof) in the performance of this Agreement, including CONSULTANT’s active or passive negligence, except for Claims arising from the sole negligence or willful misconduct of CITY, as determined by final arbitration or court decision or by the agreement of the Par ties.
CONSULTANT shall defend the City Indemnitees in any action or actions filed in connection with any Claims with counsel of CITY’s choice, and shall pay all costs and expenses, including all attorneys’ fees and experts’ costs actually incurred in connection with such defense.
CONSULTANT shall reimburse the Indemnitees for any and all legal expenses and costs incurred by City Indemnitees in connection therewith.
10.4 Taxes, Assessments, Workers Compensation . CONSULTANT shall pay all required taxes on amounts paid to CONSULTANT under this Agreement and indemnify and hold CITY harmless from any and all taxes, assessments, penalties and interest asserted against CITY by reason of the independent contractor relationship created by this Agreement. CONSULTANT shall fully comply with applicable workers’ comp ensation laws regarding CONSULTANT and its CONSULTANT shall indemnify and hold CITY harmless from any failure of CONSULTANT to comply with applicable workers’ compensation laws.
10.5 Obligations Not Limited by Insurance. The obligations and covenants of CONSULTANT in this Section 10 are independent and separate from any requirement or covenant to carry insurance. The obligations of CONSULTANT under this Section 10 shall not be limited by the limits of any policies of insurance by this Agreement or otherwise maintained by CONSULTANT, nor shall CONSULTANT’s obligations by limited by the provisions of any workers’ compensation act or similar act. CONSULTANT expressly waives any statutory immunity under such statutes or laws as to the CITY or City Indemnitees.
10.6 Survival; Enforcement. CONSULTANT’s obligations and covenants under this Section shall survive the expiration or termination of this Agreement and shall continue in full force and effect for a time at least equal to the statute of limitations that is applicable to the underlying Claim, demand, cost or liability. CITY may offset against the amount of any compensation due DRAFT
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CONSULTANT any amount due to CITY from CONSULTANT as a result of CONSULTANT’s failure to promptly pay CITY any obligation for reimbursement or indemnification arising under this Section 10.
11. INSURANCE. At all times during the term of this Agreement CONSULTANT shall maintain insurance coverage in the forms, types, and amounts that are set forth in this Section 11, and upon CITY’s request CONSULTANT shall provide evidence of such coverage to the satisfaction of CITY’s Director of Risk Management, which may include a visual inspection of all policies, copies of declarations page, endorsements signed by an authorized representative of the underwriting company, or certificates of insurance.
11.1 Minimum Scope of Insurance. CONSULTANT shall maintain policies with coverage at least as broad as:
.1 Commercial General Liability insurance using the most current version of Insurance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01, which shall include insurance for "bodily injury," "property damage" and "personal and advertising injury" with coverage for premises and operations, products and completed operations, and contractual liability.
.2 The most current version of Insurance Service Office (ISO) Business Auto Coverage Form CA 00 01, which shall include coverage for all owned, hired, and non -owned automobiles or other licensed vehicles (Code 1-Any Auto).
.3 Workers' Compensation insurance as required by the California Labor Code and Employer's Liability Insurance.
.4 Professional Liability (Errors and Omissions) insurance appropriate to CONSULTANT’s profession. If such insurance policy is written on a claims -made form, the retroactive date must be shown and must be before the effective date of the Agreement or the commencement of Services by Consultant.
11.2 Minimum Limits of Insurance. CONSULTANT shall maintain insurance coverage limits not less than:
.1 Commercial General Liability: $2,000,000 per occurrence for bodily injury, personal injury, and property damage. If a general aggregate limit is used, either the general aggregate limit shall apply separately to the Services / location or the general aggregate limit shall be $4,000,000 and contain specific language creating a duty to defend against any suit seeking damages.
.2 Automobile Liability: $1,000,000 per accident for bodily injury and property damage.
.3 Employer's Liability: $1,000,000 per accident for bodily injury or disease.
.4 Professional liability: $2,000,000 per claim, with an extended reporting period of not less than two years.
11.3 Umbrella or Excess Insurance. In the event CONSULTANT purchases an umbrella or excess insurance policy(ies) to meet the “Minimum Limits of Insurance," this DRAFT
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insurance policy(ies) shall "follow form" and afford no less coverage than the primary insurance policy(ies) required by this Section 11.
11.4 Deductibles and Self-insured Retentions: CONSULTANT shall be responsible for payment of any deductibles contained in any insurance policy(ies) required hereunder and CONSULTANT shall also be responsible for payment of any self -insured retentions. Any deductibles or self-insured retentions must be declared to, and approved by, the City Manager or his/her designee. At the option of the City Manager or his/her designee, either (i) the insurer shall reduce or eliminate such deductibles or self -insured ret entions as respects CITY and City Indemnitees; or (ii) CONSULTANT shall provide a financial guarantee, satisfactory to the City Manager or his/her designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses . At no time shall CITY be responsible for the payment of any deductibles or self-insured retentions.
11.5 Required Endorsements. Each insurance policy shall be endorsed as follows:
.1 Except with respect to Employer’s Liability or Professional Liability/E&O policies required by this Section 11, CITY and City Indemnitees shall be named as additional insureds (collectively “ Additional Insureds”). Additional Insured endorsements shall not: (a) be limited to “Ongoing Operations”; (b) exclude “Contractual Operations”; (c) restrict coverage to the “Sole” liability of CONSULTANT; or (d) contain any other exclusion contrary to this Agreement.
.2 For any claims related to this Agreement or the Services performed under this Agreement, CONSULTANT's insurance coverage shall be primary to any other similar insurance carried by Additional Insureds . Any insurance or self -insurance maintained by Additional Insureds shall be in excess of CONSULTANT's insurance and shall not be called upon to contribute with it.
.3 All insurance coverage shall contain a provision that prohibits cancellation, modification or lapse without thirty (30) calendar days' prior written notice from insurer to CITY.
The notice shall be provided via certified mail, return receipt requested. CO NSULTANT shall require its insurer to modify the applicable policy and all certificates of insurance to delete any exculpatory wording stating that failure of the insurer to mail written notice of cancellation imposes no obligation, and to delete the word "endeavor" with regard to any notice provisions.
.4 Each policy shall be endorsed to state that the insurer waives the right of subrogation against CITY and City Indemnitees.
11.6 Duration of Insurance. The requirements of this Section 11 shall survive expiration or termination of the Agreement. Insurance must be maintained, and evidence of insurance must be provided for at least 3 years after any expiration or termination of the Agreement or, in the alternative, the policy shall be endorsed to provide not less than a 3 -year discovery period.
11.7 Acceptability of Insurers. All insurance coverage required by this Agreement shall be written by insurers admitted to conduct business in the State of California by the Department of Insurance and rated “A:VIII” in the most recent A.M. Best's Insurance Rating Guide.
11.8 Verification of Coverage. CONSULTANT shall furnish CITY with evidence of the insurance required by this Agreement to the satisfactory to CITY. Such evidence shall consist of original certificates of insurance and amendatory endorsements, including an additional insured endorsement. The endorsements shall be on forms provided by CITY or on such other forms approved by CITY and conforming to CITY's requirements. CONSULTANT shall file all certificates DRAFT
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of insurance and fully executed endorsements with CITY before commencing performance of the Services. Where and at the times applicable, CONSULTANT shall also provide proof that the policies of insurance required under this Agreement and expiring during th e term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. CONSULTANT shall furnish such proof to CITY prior to the expiration of the original policies. CITY may require complete, certified copies of all required insurance policies, including endorsements affecting the coverage required by these specifications at any time. CONSULTANT shall provide complete copies of policies to CITY upon request.
11.9 Other Insurance Provisions.
.1 All insurance coverage and limits provided pursuant to this Agreement shall apply to the full extent of the policies involved, available or applicable. Nothing contained in this Agreement or any other agreement relating to CITY or its operations limits the application of the insurance coverage.
.2 Requirements of specific coverage features or limits contained in this Section 11 are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only and is not intended by any Party to be all inclusive, or to the exclusion of other coverage, or a waiver of any type.
.3 All insurance coverage shall cover CONSULTANT’s operations pursuant to the terms of this Agreement.
.4 Any actual or alleged failure on the part of CITY or any other additional insured under these requirements to obtain proof of insurance required under this Agreement in no way waives any right or remedy of CITY or any additional insured, in this or any other regard.
.5 In the event any policy of insurance required under this Agreement does not comply with these requirements or is canceled and not replaced, CITY has the right, but not the duty, to obtain the insurance it deems necessary, and CONSULTANT shall promptly reimburse to CITY any premium paid by CITY.
.6 CONSULTANT shall provide immediate notice to CITY of any claim or loss against CONSULTANT that includes CITY or any of the Additional Insureds as a defendant. CITY assumes no obligation or liability from the notice. CITY shall have the right, but not the duty, to monitor the handling of the claim or claims if they are likely to involve CITY.
11.10 Subcontractors. CONSULTANT shall include all subcontractors, or any other party involved in the performance of the Services, as insureds under its policies or shall require subcontractors or any other party involved in the Services by CONSULTANT to carry the same insurance as required in this Section 11. CONSULTANT shall obtain certificates evidencing the coverage and make reasonable efforts to ensure that the coverage is provided as required in this Section. CONSULTANT shall require that no contract used by any subcont ractor, or contract CONSULTANT enters into on behalf of CITY, shall reserve the right to charge back to CITY the cost of insurance required by this Agreement. CONSULTANT shall, upon request, submit to CITY for review, all agreements with subcontractors or others with whom CONSULTANT contracts with on behalf of CITY, and all certificates of insurance obtained in compliance with Section 11.8.
CITY’s failure to request copies of the documents shall not impose any liability on CITY, or its employees, or be deemed a waiver of any of CITY’s rights.
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12. WORK PRODUCT.
12.1 Deliverables. CONSULTANT shall submit progress reports at least once a month.
The report should be sufficiently detailed for the City Representative to determine, if CONSULTANT is performing to expectations, or is on schedule; to provide communication of interim findings, and to sufficiently address any difficulties or special problems encountered, so remedies can be developed. The Consultant Representative shall meet with the City Representative, as needed, to discuss progress on the Agreement.
12.2 Ownership.
.1 All draft and final reports, documents and other written material, and any and all images, ideas, concepts, designs including website designs, source code, object code, electronic data and files or other media whatsoever, created or developed by CONSULTANT in the performance of this Agreement (collectively, “Work Product”) shall be considered to be “works made for hire” for the benefit of CITY. All Work Product and any and all intellectual property rights arising from their creation, including all copyrights and other proprietary rights, shall be and remain the property of CITY without restriction or limitation upon their use, duplication or dissemination by CITY upon final payment being made. CONSULTANT shall not obtain or attempt to obtain copyright protection as to any of the Work Product.
.2 CONSULTANT hereby assigns to CITY all rights of ownership to the Work Product, including any and all related intellectual property and proprietary rights that are not otherwise vested in CITY pursuant to subsection .1 above.
.3 CONSULTANT warrants and represents that it has secured all necessary licenses, consents or approvals necessary to the production of the Work Product, and that upon final payment, CITY shall have full legal title to the Work Product, and full legal authority and the right to use and reproduce the Work Product for any purpose. CONSULTANT shall defend, indemnify and hold CITY and the City Indemnitees harmless from any loss, claim or liability in any way related to a claim that CITY’s use of any of the Work Product is violating federal, state or local laws, or any contractual provisions, or any rights or laws relating to trade names, licenses, franchises, copyrights, patents or other means of protecting intellectual property rights or interests in products, i deas or inventions. CONSULTANT shall bear all costs arising from the use of patented, copyrighted, trade secret or trademarked documents, materials, equipment, devices or processes in connection with its provision of the Work Product produced under this Ag reement.
In the event any the use of any of the Work Product or other deliverables hereunder by CITY is held to constitute an infringement and the use of any of the same is enjoined, CONSULTANT, at its expense, shall: (a) secure for CITY the right to cont inue using the Work Product and other deliverables by suspension of any injunction, or by procuring a license or licenses for CITY; or (b) modify the Work Product and other deliverables so that they become non -infringing while remaining in compliance with the requirements of this Agreement. CONSULTANT’s covenants under this Section 12.2 shall survive the expiration or termination of this Agreement.
13. CONFIDENTIALITY. During performance of this Agreement, CONSULTANT may gain access to and use CITY information regarding inventions, machinery, products, prices, apparatus, costs, discounts, future plans, business affairs, governmental affairs, processes, trade secrets, technical matters, systems, facilities, customer li sts, product design, copyright, data, and other vital information (hereafter collectively referred to as “City Information”) that are valuable, special and unique assets of CITY. CONSULTANT agrees to protect all City Information and treat it as strictly confidential, and further agrees that CONSULTANT shall not at any time, either directly or indirectly, divulge, disclose or communicate in any manner any City Information to any third party DRAFT
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without the prior written consent of CITY. In addition, CONSULTANT shall comply with all CITY policies governing the use of CITY network and technology systems. A violation by CONSULTANT of this section shall be a material violation of this Agreement and shall justify legal and/or equitable relief.
14. RECORDS/AUDITS. For the purpose of determining compliance with Gov. Code section 8546.7, the CONSULTANT and Subconsultants shall maintain all books, documents, papers, accounting records, Independent CPA Audited Indirect Cost Rate workpapers, and other evidence pertaining to the performance of the Agreement including, but not limited to, the costs of administering the Agreement. All parties, including the CONSULTANT’s Independent CPA, shall make such workpapers and materials available at their respective offices at all r easonable times during the Agreement period and for three (3) years from the date of final payment under the Agreement and records for real property and equipment acquired with federal funds must be retained for three (3) years after final disposition. CIT Y, Caltrans Auditor, FHWA, or any duly authorized representative of the Federal government having jurisdiction under Federal laws or regulations (including the basis of Federal funding in whole or in part) shall have access to any books, records, and docum ents of the CONSULTANT and Subconsultants, and the CONSULTANT’s Independent CPA, that are pertinent to the Agreement for audits, examinations, workpaper review, excerpts, and transactions, and copies thereof shall be furnished if requested without limitation.
15. ASSIGNMENT AND SUBCONTRACTING. This Agreement is personal to CONSULTANT and CITY has entered this Agreement in reliance on CONSULTANT’s skill, competence and experience. CONSULTANT shall not assign any of its rights or delegate any of its duties under this Agreement, either in whole or in part, without CITY’s prior written consent, by and through the City Representative. CITY’s consent to an assignment of rights under this Agreement shall not release CONSULTANT from any of its obligations or alter any of its obligations to be performed under this Agreement. Any attempt at assignment or delegation by CONSULTANT in violation of this Section shall be void and of no effect and shall entitle CITY to immediately terminate this Agreement for cause. As used in this section, “assignment” and “delegation” means any sale, gift, pledge, hypothecation, encumbrance or other transfer of all or any portion of the rights, obligations, or liabilities in or arising from this Agreement to any person or entity, whether by op eration of law or otherwise, and regardless of the legal form of the transaction in which the attempted transfer occurs. CONSULTANT shall not subcontract any performance required under this Agreement without CITY’s prior written consent.
16. SUSPENSION AND TERMINATION.
16.1 Right to Suspend. CITY shall have the right at any time to temporarily suspend CONSULTANT’s performance hereunder, in whole or in part, by giving a written notice of suspension to CONSULTANT. If CITY gives such notice of suspension, CONSULTANT shall immediately suspend its activities under this Agreement as specified in such notice.
16.2 Termination. CITY shall have the right to terminate this Agreement at any time by giving a written notice of termination to CONSULTANT. If CITY gives such notice of termination, CONSULTANT shall immediately cease rendering Services pursuant to this Agreement. If CITY terminates this Agreement:
.1 CONSULTANT shall, not later than five days after such notice of termination, deliver to CITY copies of all Work Product or other information prepared pursuant to this Agreement.
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.2 CITY shall pay CONSULTANT the reasonable value of Services rendered by CONSULTANT prior to termination; provided, however, CITY shall not in any manner be liable for lost profits that might have been made by CONSULTANT had the Agreement not been terminated or had CONSULTANT completed the Services required by this Agreement. In this regard, CONSULTANT shall furnish to CITY such financial information as in the judgment of CITY is necessary for CITY to determine the reasonable value of the Services render b y CONSULTANT. The foregoing is cumulative and does not affect any right or remedy that CITY may have in law or equity.
17. COST PRICIPLES AND ADMINISTRATIVE REQUIREMENTS
17.1 The CONSULTANT agrees that 48 CFR 31, Contract Cost Principles and Procedures, shall be used to determine the allowability of individual terms of cost.
17.2 The CONSULTANT also agrees to comply with Federal procedures in accordance with 2 CFR 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards.
17.3 Any costs for which payment has been made to the CONSULTANT that are determined by subsequent audit to be unallowable under 48 CFR 31 or 2 CFR 200 are subject to repayment by the CONSULTANT to CITY.
17.4 When a CONSULTANT or Subconsultant is a Non -Profit Organization or an Institution of Higher Education, the Cost Principles for Title 2 CFR 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards shall apply
18. AUDIT REVIEW PROCEDURES
18.1 Any dispute concerning a question of fact arising under an interim or post audit of this Agreement that is not disposed of by agreement, shall be reviewed by CITY’s Finance Director.
18.2 Not later than thirty (30) calendar days after issuance of the final audit report, CONSULTANT may request a review by City’s Finance Director of unresolved audit issues. The request for review will be submitted in writing.
18.3 Neither the pendency of a dispute nor its consideration by CITY will excuse CONSULTANT from full and timely performance, in accordance with the terms of this Agreement.
18.4 CONSULTANT and subconsultant agreements, including cost proposals and Indirect Cost Rates (ICR), may be subject to audits or reviews such as, but not limited to, an agreement audit, an incurred cost audit, an ICR Audit, or a CPA ICR audit work paper review. If selected for audit or review, the Agreement cost proposal and ICR and related work papers, if applicable, will be reviewed to verify compliance with 48 CFR 31 and other related laws and regulations. In the instances of a CPA ICR audit work paper review it is CONSULTANT’s responsibility to ensure federal, CITY, or local government officials are allowed full access to the CPA’s work papers including making copies as necessary. The Agreement, cost proposal, and ICR shall be adjusted by CONSULTANT and approved by the City Representative to conform to the audit or review recommendations. CONSULTANT agrees that individual terms of costs identified in the audit report shall be incorporated into the Agreement by this reference if directed by CITY at its sole discretion. Refusal by CONSULTANT to incorporate audit or rev iew recommendations, or to ensure that the federal, CITY or local governments have access to CPA DRAFT
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work papers, will be considered a breach of Agreement terms and cause for termination of the Agreement and disallowance of prior reimbursed costs.
18.5 CONSULTANT’s Cost Proposal may be subject to a CPA ICR Audit Work Paper Review and/or audit by the Independent Office of Audits and Investigations (IOAI). IOAI, at its sole discretion, may review and/or audit and approve the CPA ICR documentation. The Cost Proposal shall be adjusted by the CONSULTANT and approved by the City Representative to conform to the Work Paper Review recommendations included in the management letter or audit recommendations included in the audit report. Refusal by the CONSULTA NT to incorporate the Work Paper Review recommendations included in the management letter or audit recommendations included in the audit report will be considered a breach of the Agreement terms and cause for termination of the Agreement and disallowance of prior reimbursed costs.
.1 During IOAI’s review of the ICR audit work papers created by the CONSULTANT’s independent CPA, IOAI will work with the CPA and/or CONSULTANT toward a resolution of issues that arise during the review. Each party agrees to use its best efforts to resolve any audit disputes in a timely manner. If IOAI identifies significant issues during the review and is unable to issue a cognizant approval letter, CITY will reimburse the CONSULTANT at an accepted ICR until a FAR (Federal Acquisition Regulation) complia nt ICR (e.g. 48 CFR Part 31; GAGAS (Generally Accepted Auditing Standards); CAS (Cost Accounting Standards), if applicable; in accordance with procedures and guidelines of the American Association of State Highways and Transportation Officials (AASHTO) Audit Guide; and other applicable procedures and guidelines) is received and approved by IOAI.
Accepted rates will be as follows:
a. If the proposed rate is less than one hundred fifty percent (150%) - the accepted rate reimbursed will be ninety percent (90%) of the proposed rate.
b. If the proposed rate is between one hundred fifty percent (150%) and two hundred percent (200%) - the accepted rate will be eighty-five percent (85%) of the proposed rate.
c. If the proposed rate is greater than two hundred percent (200%) - the accepted rate will be seventy-five percent (75%) of the proposed rate.
2. If IOAI is unable to issue a cognizant letter per paragraph 18.5.1 above, IOAI may require CONSULTANT to submit a revised independent CPA -audited ICR and audit report within three (3) months of the effective date of the management letter. IOAI will then have up to six (6) months to review the CONSULTANT’s and/or the independent CPA’s revisions.
3. If the CONSULTANT fails to comply with the provisions of this paragraph, or if IOAI is still unable to issue a cognizant approval letter after the revised independent CPA audited ICR is submitted, overhead cost reimbursement will be limited to the accep ted ICR that was established upon initial rejection of the ICR and set forth in paragraph 18.5.1 above for all rendered services. In this event, this accepted ICR will become the actual and final ICR for reimbursement purposes under this AGREEMENT.
4. CONSULTANT may submit to CITY final invoice only when all of the following items have occurred: (1) IOAI accepts or adjusts the original or revised independent CPA audited ICR; (2) all work under this AGREEMENT has been completed to the satisfaction of CITY; and, DRAFT
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(3) IOAI has issued its final ICR review letter. The CONSULTANT MUST SUBMIT ITS FINAL INVOICE TO CITY no later than sixty (60) calendar days after occurrence of the last of these items. The accepted ICR will apply to this Agreement and all other agreements executed between CITY and the CONSULTANT, either as a prime or subconsultant, with the same fiscal period ICR.
19. SUBCONTRACTING
19.1 Nothing contained in this Agreement or otherwise, shall create any contractual relation between the CITY and any Subconsultants, and no subagreement shall relieve the CONSULTANT of its responsibilities and obligations hereunder. The CONSULTANT agrees to be as fully responsible to the CITY for the acts and omissions of its Subconsultants and of persons either directly or indirectly employed by any of them as it is for the acts and omissions of persons directly employed by the CONSULTANT. The CONSULTANT's obl igation to pay its Subconsultants is an independent obligation from the CITY's obligation to make payments to the CONSULTANT.
19.2 The CONSULTANT shall perform the work contemplated with resources available within its own organization and no portion of the work shall be subcontracted without written authorization by the City Representative, except that which is expressly identif ied in the CONSULTANT’s approved Cost Proposal.
19.3 Any subagreement entered into as a result of this Agreement, shall contain all the provisions stipulated in this entire Agreement to be applicable to Subconsultants unless otherwise noted.
19.4 CONSULTANT shall pay its Subconsultants within Fifteen (15) calendar days from receipt of each payment made to the CONSULTANT by the CITY.
19.5 Any substitution of Subconsultants must be approved in writing by the City Representative in advance of assigning work to a substitute Subconsultant.
19.6 Prompt Progress Payment. CONSULTANT or subconsultant shall pay to any subconsultant, not later than fifteen (15) days after receipt of each progress payment, unless otherwise agreed to in writing, the respective amounts allowed CONSULTANT on account of the work performed by the subconsultants, to the extent of each subconsultant’s interest therein. In the event that there is a good faith dispute over all or any portion of the amount due on a progress payment from CONSULTANT or subconsultant to a subco nsultant, CONSULTANT or subconsultant may withhold no more than 150 percent of the disputed amount. Any violation of this requirement shall constitute a cause for disciplinary action and shall subject the licensee to a penalty, payable to the subconsultant, of 2 percent of the amount due per month for every month that payment is not made. In any action for the collection of funds wrongfully withheld, the prevailing party shall be entitled to his or her attorney’s fees and costs. The sanctions authorized under this requirement shall be separate from, and in addition to, all other remedies, either civil, administrative, or criminal. This clause applies to both DBE and non-DBE subconsultants.
19.7 Prompt Payment of Withheld Funds to Subconsultants. The CITY may hold retainage from CONSULTANT and shall make prompt and regular incremental acceptances of portions, as determined by the CITY, of the contract work, and pay retainage to CONSULTANT based on these acceptances. CONSULTANTS and subconsultants are prohibited from holding retainage from subconsultants. Any delay or postponement of payment may take place only for good cause and with the CITY’s prior written approval. Any violation of these p rovisions shall DRAFT
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subject the violating CONSULTANT or subconsultant to the penalties, sanctions, and other remedies specified in Section 3321 of the California Civil Code. This requirement shall not be construed to limit or impair any contractual, administrative or judicial remedies, otherwise available to CONSULTANT or subconsultant in the event of a dispute involving late payment or nonpayment by CONSULTANT, deficient subconsultant performance and/or noncompliance by a subconsultant. This clause applies to both DBE and non-DBE subconsultants.
19.8 Any violation of these provisions shall subject the violating CONSULTANT or subconsultant to the penalties, sanctions and other remedies specified therein. These requirements shall not be construed to limit or impair any contractual, administrative, or judicial remedies otherwise available to CONSULTANT or subconsultant in the event of a dispute involving late payment or nonpayment by CONSULTANT, deficient subcontract performance, or noncompliance by a subconsultant.
20. CONFLICTS OF INTEREST.
20.1 During the term of this Agreement, the CONSULTANT shall disclose any financial, business, or other relationship with CITY that may have an impact upon the outcome of this Agreement or any ensuing CITY construction project. The CONSULTANT shall also list current clients who may have a financial interest in the outcome of this Agreement or any ensuing CITY construction project which will follow.
20.2 CONSULTANT shall comply with all applicable federal, state and local conflict of Interest laws, including the Political Reform Act (Cal. Gov. Code § 81000 et seq.), the Levine Act (Cal. Gov. Code § 84308), and California Government Code Section 1090.
20.3 CONSULTANT certifies that it has disclosed to CITY any actual, apparent, or potential conflicts of interest that may exist relative to the services to be provided pursuant to this Agreement. CONSULTANT agrees to advise CITY of any actual, apparent or potential conflicts of interest that may develop subsequent to the date of execution of this Agreement. CONSULTANT further agrees to complete any statements of economic interest if required by either CITY ordinance or State law.
20.4 The CONSULTANT hereby certifies that it does not now have, nor shall it acquire any financial or business interest that would conflict with the performance of services under this Agreement.
20.5 The CONSULTANT hereby certifies that the CONSULTANT or subconsultant and any firm affiliated with the CONSULTANT or subconsultant that bids on any construction contract or on any Agreement to provide construction inspection for any construction project resulting from this Agreement, has established necessary controls to ensure a conflict of interest does not exist.
An affiliated firm is one, which is subject to the control of the same persons, through joint ownership or otherwise.
21. REBATES, KICKBACKS OR OTHER UNLAWFUL CONSIDERATION. The CONSULTANT warrants that this Agreement was not obtained or secured through rebates, kickbacks or other unlawful consideration either promised or paid to any CITY employee. For breach or violation of this warranty, CITY shall have the right, in its discretion, to terminate this Agreement without liability, to pay only for the value of the work actually performed, or to deduct from this Agreement price or otherwise recover the full amount of such re bate, kickback or other unlawful consideration.
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22. PROHIBITION OF EXPENDING CITY, STATE, OR FEDERAL FUNDS FOR LOBBYING.
22.1 The CONSULTANT certifies, to the best of his or her knowledge and belief, that:
.1 No State, Federal, or CITY appropriated funds have been paid or will be paid, by or on behalf of the CONSULTANT, to any person for influencing or attempting to influence an officer or employee of any local, State, or Federal agency, a Member of the State Legislature or United State s Congress, an officer or employee of the Legislature or Congress, or any employee of a Member of the Legislature or Congress in connection with the awarding or making of this Agreement, or with the extension, continuation, renewal, amendment, or modification of this Agreement.
.2 If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with this Agreement, the CONSULTANT shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.
22.2 This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31 U.S.C. §1352. Any person who fails to file the required certification shall be subject to a civil penalty of not less than ten thousand dollars ($10,000) and not more than one hundred thousand dollars ($100,000) for each such failure.
22.3 The CONSULTANT also agrees by signing this document that he or she shall require that the language of this certification be included in all lower tier subagreements, which exceed one hundred thousand dollars ($100,000), and that all such subrecipients shall certify and disclose accordingly.
23. NON-DISCRIMINATION CLAUSE AND STATEMENT OF COMPLIANCE
23.1 The CONSULTANT’s signature affixed herein and dated shall constitute a certification under penalty of perjury under the laws of the State of California that the CONSULTANT has, unless exempt, complied with the nondiscrimination program requirements of Gov. Code §12990 and 2 CCR § 8103.
23.2 During the performance of this Agreement, CONSULTANT and its subconsultants shall not deny the Agreement’s benefits to any person on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, nor shall they unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. CONSULTANT and subconsultants shall insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment.
23.3 CONSULTANT and subconsultants shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code §12990 et seq.), the applicable regulations promulgated there under (2 CCR §11000 et seq.), the provisions of Gov. Code §§11135-11139.5, DRAFT
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and the regulations or standards adopted by CITY to implement such article. The applicable regulations of the Fair Employment and Housing Commission implementing Gov. Code §12990 (a-f), set forth 2 CCR §§8100-8504, are incorporated into this Agreement by reference and made a part hereof as if set forth in full.
23.4 CONSULTANT shall permit access by representatives of the Department of Fair Employment and Housing and the CITY upon reasonable notice at any time during the normal business hours, but in no case less than twenty -four (24) hours’ notice, to such of its books, records, accounts, and all other sources of information and its facilities as said Department or CITY shall require to ascertain compliance with this clause.
23.5 CONSULTANT and its subconsultants shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other Agreement.
23.6 CONSULTANT shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under this AGREEMENT.
23.7 The CONSULTANT, with regard to the work performed under this AGREEMENT, shall act in accordance with Title VI of the Civil Rights Act of 1964 (42 U.S.C. §2000d et seq.).
Title VI provides that the recipients of federal assistance will implement and m aintain a policy of nondiscrimination in which no person in the United States shall, on the basis of race, color, national origin, religion, sex, age, disability, be excluded from participation in, denied the benefits of or subject to discrimination under any program or activity by the recipients of federal assistance or their assignees and successors in interest.
23.8 The CONSULTANT shall comply with regulations relative to non-discrimination in federally-assisted programs of the U.S. Department of Transportation (49 CFR 21 - Effectuation of Title VI of the Civil Rights Act of 1964). Specifically, the CONSULTANT s hall not participate either directly or indirectly in the discrimination prohibited by 49 CFR §21.5, including employment practices and the selection and retention of Subconsultants.
23.9 CONSULTANT, subrecipient or subconsultant will never exclude any person from participation in, deny any person the benefits of, or otherwise discriminate against anyone in connection with the award and performance of any contract covered by 49 CFR 26 on the basis of race, color, sex, or national origin. In administering the CITY components of the DBE Program Plan, CONSULTANT, subrecipient or subconsultant will not, directly, or through contractual or other arrangements, use criteria or methods of administration that have the effect of defeating or substantially impairing accomplishment of the objectives of the DBE Program Plan with respect to individuals of a particular race, color, sex, or national origin.
24. DEBARMENT AND SUSPENSION CERTIFICATION
24.1 The CONSULTANT’s signature affixed herein shall constitute a certification under penalty of perjury under the laws of the State of California, that the CONSULTANT or any person associated therewith in the capacity of owner, partner, director, officer or manager:
.1 Is not currently under suspension, debarment, voluntary exclusion, or determination of ineligibility by any federal agency;
.2 Has not been suspended, debarred, voluntarily excluded, or determined ineligible by any federal agency within the past three (3) years; DRAFT
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.3 Does not have a proposed debarment pending; and
.4 Has not been indicted, convicted, or had a civil judgment rendered against it by a court of competent jurisdiction in any matter involving fraud or official misconduct within the past three (3) years.
24.2 Any exceptions to this certification must be disclosed to CITY. Exceptions will not necessarily result in denial of recommendation for award, but will be considered in determining responsibility. Disclosures must indicate the party to whom the exceptions apply, the initiating agency, and the dates of agency action.
24.3 Exceptions to the Federal Government excluded parties (https://sam.gov/content/home) maintained by the U.S. General Services Administration are to be determined by FHWA.
25. DISADVANTAGED BUSINESS ENTERPRISES (DBE) PARTICIPATION.
CONSULTANT or subconsultant shall take necessary and reasonable steps to ensure that DBEs have opportunities to participate in the contract as described further in Exhibit “__” (49 CFR 26).
26. FUNDING REQUIREMENTS.
26.1 It is mutually understood between the parties that this Agreement may have been written before ascertaining the availability of funds or appropriation of funds, for the mutual benefit of both parties, in order to avoid program and fiscal delays that would occur if the Agreement were executed after that determination was made.
26.2 This Agreement is valid and enforceable only if sufficient funds are made available to CITY for the purpose of this Agreement. In addition, this Agreement is subject to any additional restrictions, limitations, conditions, or any statute enacted by the Congress, State Legislature, or CITY governing board that may affect the provisions, terms, or funding of this Agreement in any manner.
26.3 It is mutually agreed that if sufficient funds are not appropriated, this Agreement may be amended to reflect any reduction in funds.
26.4 CITY has the option to terminate the Agreement, or by mutual agreement to amend the Agreement to reflect any reduction of funds.
27. NOTICES. Any notice, consent, request, demand, bill, invoice, report or other communication required or permitted under this Agreement shall be given in writing to the person at the addresses specified on first page of this Agreement and deemed effective: (a) on personal delivery, (b) on confirmed delivery by courier service during CONSULTANT’s and CITY’s regular business hours, or (c) three business days after deposit in the United States mail, by first class mail, postage prepaid. Either Party may change the specified person or address at which it is to receive notices by advising the other Party in writing.
28. DISPUTES. Prior to either party commencing any legal action under this Agreement, the parties agree to try in good faith, to settle any dispute amicably between them. If a dispute has not been settled after forty -five (45) days of good -faith negotiations and as may be otherwise provided herein, then either party may commence legal action against the other
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28.1 Any dispute, other than audit, concerning a question of fact arising under this Agreement that is not disposed of by agreement shall be decided by a committee consisting of City Representative and City Engineer, who may consider written or verbal information submitted by CONSULTANT.
28.2 Not later than thirty (30) calendar days after completion of all work under the Agreement, CONSULTANT may request review by the City Council of unresolved claims or disputes, other than audit. The request for review will be submitted in writing.
28.3 Neither the pendency of a dispute, nor its consideration by the committee will excuse CONSULTANT from full and timely performance in accordance with the terms of this AGREEMENT.
29. INSPECTION OF WORK. CONSULTANT and any subconsultant shall permit CITY, the State, and the FHWA if federal participating funds are used in this Agreement; to review and inspect the project activities and files at all reasonable times during the performance period of this Agreement.
30. NATIONAL LABOR RELATIONS BOARD CERTIFICATION. In accordance with Public Contract Code §10296, CONSULTANT hereby states under penalty of perjury that no more than one final unappealable finding of contempt of court by a federal court has been issued against CONSULTANT within the immediately preceding two-year period, because of CONSULTANT’s failure to comply with an order of a federal court that orders CONSULTANT to comply with an order of the National Labor Relations Board.
31. EVALUATION OF CONSULTANT . CONSULTANT’s performance will be evaluated by CITY. A copy of the evaluation will be sent to CONSULTANT for comments. The evaluation together with the comments shall be retained as part of the Agreement record.
32. MISCELLANEOUS TERMS.
32.1 Exhibits; Precedence. All documents referenced as exhibits in this Agreement are hereby incorporated into this Agreement by this reference. In the event of any inconsistency between the express provisions of this Agreement and any provision of an exhibit, the provisions of this Agreement shall prevail.
32.2 Time of the Essence. Time is of the essence in respect to all provisions of this Agreement that specify a time for performance.
32.3 Nuisance; Compliance with Laws. CONSULTANT shall not maintain, commit or permit the maintenance or commission of any nuisance in connection with performing the Services. In the performing the Services CONSULTANT shall abide by and conform with and to any and all applicable laws of the United States and the State of California, and the local laws, regulations, and policies of the City of Buena Park.
32.4 Permits and Licenses. CONSULTANT, at its sole expense, shall obtain and maintain during the term of this Agreement all appropriate permits, licenses, and certificates that may be required in connection with performing the Services.
32.5 Governing Law; Venue. The terms of this Agreement, and any dispute arising from the relationship between the Parties to this Agreement, shall be governed by and construed DRAFT
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in accordance with the laws of the State of California, without regard for its conflicts of laws principles, except that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in interpret ing this Agreement. The venue for resolving any dispute that arises under or relates to this Agreement (whether contract, tort or both) shall be a court with jurisdiction that is located in the County of Orange, California.
32.6 Cost of Litigation. If any legal action is necessary to enforce any provision of this Agreement or for damages by reason of an alleged breach of any provisions of this Agreement (whether in contract, tort, or both), the prevailing Party shall be entitled to receive from the losing Party all attorneys’ fees, costs and expenses in such amount as the courts may determine to be reasonable.
32.7 Waiver. No delay or omission to exercise any right, power or remedy accruing to CITY under this Agreement shall impair any right, power or remedy of CITY, nor shall it be construed as a waiver of, or consent to, any breach or default. No waiver by CITY of any breach, any failure of a condition, or any right or remedy under this Agreement shall be: (1) effective unless it is in writing and signed by the Party making the waiver; (2) deemed to be a waiver of, or consent to, any other breach, failure of a condition, or right or remedy; or (3) deemed to constitute a continuing waiver unless the writing expressly so states.
32.8 Efficient Performance. CONSULTANT shall commence, carry on and complete its assignments with all practicable dispatch, in a sound, economical, and efficient manner in accordance with all applicable laws and generally accepted industry and applicable professional standards.
32.9 No Third Party Beneficiaries. This Agreement is made solely for the benefit of the Parties to this Agreement and their respective successors and assigns, and no other person or entity may have or acquire a right by virtue of this Agreement.
32.10 When Rights and Remedies Not Waived. In no event shall the making by CITY of any payment to CONSULTANT constitute or be construed as a waiver by CITY of any breach of covenant, or any default that may then exist, on the part of CONSULTANT, and the making of any such payment by CITY while any such breach or default shall exist shall in no way impair or prejudice any right or remedy available to CITY with regard to such breach or default.
32.11 Severability. If any part, term or provision of this Agreement shall be held illegal, unenforceable or in conflict with any law of a federal, state, or local government having jurisdiction over this Agreement, the validity of the remaining portions or provisions shall not be affected by such holding.
32.12 Captions. The titles of the sections, subsections and paragraphs set forth in this Agreement are inserted for convenience and reference only and shall be disregarded in construing or interpreting any of the provisions of this Agreement and the rights or obligations of the Parties to this Agreement.
32.13 Word Usage. Unless the context clearly requires otherwise, (a) the word “shall” is mandatory and “may” is permissive; (b) “or” is not exclusive; and (c) “includes” or “including” are not limiting.
32.14 Integrated Agreement and Modification of Agreement. This Agreement, and all exhibits referred to in this Agreement and listed below , constitutes the final, complete and exclusive statement of the terms of the agreement between CITY and CONSULTANT with respect DRAFT
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to the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous oral or written negotiations, representations or agreements of the Parties. No verbal agreement or implied covenant shall be held to vary the provisions of this Agreement. No Party has been induced to enter into this Agreement by, nor is any Party relying on, any representation or warranty except those expressly set forth in this Agreement. This Agreement may be modified only by a writing signed by both Parties. Exhibits attached to this Agreement are the following
Exhibit A – Scope of Services, Schedule, & Compensation Exhibit B – Public Works Exhibit
Exhibit C – DBE Participation
Exhibit D – Title VI Assurances
Exhibit E – Levine Act Disclosure
32.15 Authority to Bind Parties. Each of the undersigned hereby represents that he or she has the authority to execute this Agreement on behalf of his or her contracting Party.
In recognition of the obligations stated in this Agreement, the Parties have executed this Agreement on the date indicated above by and through their duly authorized representatives.
[signatures of parties on follow page]
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CITY OF BUENA PARK
a California municipal corporation
CONSULTANT*
Name of Business
Signature
Signature
Name: Name:
Title: Title:
*If CONSULTANT is a corporation, then pursuant
to California Corporations Code Section 313 this
Agreement must be executed by either: (1) the
chairperson of the board; (2) the president; or (3)
the vice president plus any one of the following:
the secretary, any assistant secretary, the chief
financial officer, or any assistant treasurer.
Signature
Name:
Title:
ATTEST:
BY:
Adria M. Jimenez, City Clerk
APPROVED AS TO FORM:
BY:
Christopher Cardinale, City Attorney
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EXHIBIT A
1) SERVICES. CONSULTANT shall provide to CITY the following Services
2) SCHEDULE OF PERFORMANCE. CONSULTANT shall perform all Services in compliance with the following Schedule of Performance:
3) COMPENSATION SCHEDULE. CONSULTANT shall be paid for performing the Services at the follow rates and times:
ADD DESCRIPTION
ADD SCHEDULE
ADD COMPENSATION RATES / SCHEDULES
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EXHIBIT B
PUBLIC WORKS - CALIFORNIA PREVALING WAGE RATES AND LABOR CODE REQUIREMENTS (Labor Code §§ 1720 et seq., 1813, 1860, 1861, 3700)
No CONSULTANT or Subconsultant may be awarded an Agreement containing public work elements unless registered with the Department of Industrial Relations (DIR) pursuant to Labor Code §1725.5.
Registration with DIR must be maintained throughout the entire term of this Agreement, including any subsequent amendments.
“Public works” include, but is not limited to the following: BOUNDARY SURVEY WORK, TOPOGRAPHICAL
SURVEY WORK, RELOCATION WORK, CONSTRUCTION INSPECTION, TESTING AND OVERSIGHT
SERVICES, SITE ASSEMBLY WORK, PRECONSTRUCTION TESTING AND INSPECTION SERVICES,
INSTALLATION AND REMOVAL OF TEMPORARY FENCING AT PROJECT SITES, OR
GEOTECHNICAL WORK (INCLUDING SOIL AND COMPACTION TESTING, FIELD TECHNICIAN
OBSERVATION OF ALL TRENCHING AND BACKFILL OPERATIONS, AND FIELD TECHNICIAN INSTALLATION OF MONITORING DEVICES).
As to any portion of the Services that are “public works,” CONSULTANT shall comply in all respects with all applicable provisions of the California Labor Code, including the following:
1. This Agreement is subject to the provisions of Division 2, Part 7, Chapter 1 (commencing with Section 1720) of the California Labor Code relating to public works and CITY and CONSULTANT agree to be bound by all the provisions thereof as though set forth fully in this Agreement.
2. CONSULTANT shall be registered with the Department of Industrial Relations (“DIR”) in accordance with California Labor Code Section 1725.5 and has provided proof of registration to CITY prior to the Effective Date of this Agreement.
3. The CONSULTANT shall comply with all of the applicable provisions of the California Labor Code requiring the payment of prevailing wages. The General Prevailing Wage Rate Determinations applicable to work under this Agreement are available and on file w ith the Department of Transportation's Regional/District Labor Compliance Officer (https://dot.ca.gov/programs/construction/labor-compliance). These wage rates are made a specific part of this Agreement by reference pursuant to Labor Code §1773.2 and will be applicable to work performed at a construction project site. Prevailing wages will be applicable to all inspection work performed at CITY construction sites, at CITY facilities and at off-site locations that are set up by the construction contractor or one of its subcontractors solely and specifically to serve CITY projects.
Prevailing wage requirements do not apply to inspection work performed at the facilities of vendors and commercial materials suppliers that provide goods and services to the general public.
4. General Prevailing Wage Rate Determinations applicable to this project may also be obtained from the Department of Industrial Relations website at http://www.dir.ca.gov.
5. Payroll Records
A. Each CONSULTANT and Subconsultant shall keep accurate certified payroll records and supporting documents as mandated by Labor Code §1776 and as defined in 8 CCR §16000 showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed by the CONSULTANT or Subconsultant in connection with the public work. Each payroll record shall contain or be verified by a written declaration that it is made under penalty of perjury, stating both of the following: a.
The information contained in the payroll record is true and correct. b. The employer has complied with the requirements of Labor Code §1771, §1811, and §1815 for any work performed by his or her employees on the public works project.
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B. The payroll records enumerated under paragraph (A) above shall be certified as correct by the CONSULTANT under penalty of perjury. The payroll records and all supporting documents shall be made available for inspection and copying by CITY representatives at all reasonable hours at the principal office of the CONSULTANT. The CONSULTANT shall provide copies of certified payrolls or permit inspection of its records as follows:
1. A certified copy of an employee's payroll record shall be made available for inspection or furnished to the employee or the employee's authorized representative on request.
2. A certified copy of all payroll records enumerated in paragraph (A) above, shall be made available for inspection or furnished upon request to a representative of CITY the Division of Labor Standards Enforcement and the Division of Apprenticeship Standards of the Department of Industrial Relations. Certified payrolls submitted to CITY, the Division of Labor Standards Enforcement and the Division of Apprenticeship Standards shall not be altered or obliterated by the CONSULTANT.
The public shall not be given access to certified payroll records by the CONSULTANT.
The CONSULTANT is required to forward any requests for certified payrolls to the City Representative by both email and regular mail on the business day following receipt of the request.
C. Each CONSULTANT shall submit a certified copy of the records enumerated in paragraph (A) above, to the entity that requested the records within ten (10) calendar days after receipt of a written request.
D. Any copy of records made available for inspection as copies and furnished upon request to the public or any public agency by CITY shall be marked or obliterated in such a manner as to prevent disclosure of each individual's name, address, and social security number. The name and address of the CONSULTANT or Subconsultant performing the work shall not be marked or obliterated.
E. The CONSULTANT shall inform CITY of the location of the records enumerated under paragraph (A) above, including the street address, city and county, and shall, within five (5) working days, provide a notice of a change of location and address.
F. The CONSULTANT or Subconsultant shall have ten (10) calendar days in which to comply subsequent to receipt of written notice requesting the records enumerated in paragraph (1) above. In the event the CONSULTANT or Subconsultant fails to comply within t he ten (10) day period, he or she shall, as a penalty to CITY, forfeit one hundred dollars ($100) for each calendar day, or portion thereof, for each worker, until strict compliance is effectuated. Such penalties shall be withheld by CITY from payments the n due. CONSULTANT is not subject to a penalty assessment pursuant to this section due to the failure of a Subconsultant to comply with this section.
6. When prevailing wage rates apply, the CONSULTANT is responsible for verifying compliance with certified payroll requirements. Invoice payment will not be made until the invoice is approved by the CITY Contract Administrator.
7. Penalty
A. The CONSULTANT and any of its Subconsultants shall comply with Labor Code §1774 and §1775. Pursuant to Labor Code §1775, the CONSULTANT and any Subconsultant shall forfeit to the CITY a penalty of not more than two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the Director DRAFT
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of DIR for the work or craft in which the worker is employed for any public work done under the AGREEMENT by the CONSULTANT or by its Subconsultant in violation of the requirements of the Labor Code and in particular, Labor Code §§1770 to 1780, inclusive.
B. The amount of this forfeiture shall be determined by the Labor Commissioner and shall be based on consideration of mistake, inadvertence, or neglect of the CONSULTANT or Subconsultant in failing to pay the correct rate of prevailing wages, or the previous record of the CONSULTANT or Subconsultant in meeting their respective prevailing wage obligations, or the willful failure by the CONSULTANT or Subconsultant to pay the correct rates of prevailing wages. A mistake, inadvertence, or neglect in failing to pay the correct rates of prevailing wages is not excusable if the CONSULTANT or Subconsultant had knowledge of the obligations under the Labor Code.
The CONSULTANT is responsible for paying the appropriate rate, including any escalations that take place during the term of the AGREEMENT.
C. In addition to the penalty and pursuant to Labor Code §1775, the difference between the prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the prevailing wage rate shall be paid to each worker by the CONSULTANT or Subconsultant.
D. If a worker employed by a Subconsultant on a public works project is not paid the general prevailing per diem wages by the Subconsultant, the CONSULTANT of the project is not liable for the penalties described above unless the CONSULTANT had knowledge of that failure of the Subconsultant to pay the specified prevailing rate of wages to those workers or unless the CONSULTANT fails to comply with all of the following requirements:
1. The AGREEMENT executed between the CONSULTANT and the Subconsultant for the performance of work on public works projects shall include a copy of the requirements in Labor Code §§ 1771, 1775, 1776, 1777.5, 1813, and 1815.
2. The CONSULTANT shall monitor the payment of the specified general prevailing rate of per diem wages by the Subconsultant to the employees by periodic review of the certified payroll records of the Subconsultant.
3. Upon becoming aware of the Subconsultant’s failure to pay the specified prevailing rate of wages to the Subconsultant’s workers, the CONSULTANT shall diligently take corrective action to halt or rectify the failure, including but not limited to, retaini ng sufficient funds due the Subconsultant for work performed on the public works project.
E. Prior to making final payment to the Subconsultant for work performed on the public works project, the CONSULTANT shall obtain an affidavit signed under penalty of perjury from the Subconsultant that the Subconsultant had paid the specified general prevai ling rate of per diem wages to the Subconsultant’s employees on the public works project and any amounts due pursuant to Labor Code §1813.
F. Pursuant to Labor Code §1775, CITY shall notify the CONSULTANT on a public works project within fifteen (15) calendar days of receipt of a complaint that a Subconsultant has failed to pay workers the general prevailing rate of per diem wages.
G. If CITY determines that employees of a Subconsultant were not paid the general prevailing rate of per diem wages and if CITY did not retain sufficient money under the AGREEMENT to pay those employees the balance of wages owed under the general prevailing rate of per diem wages, the CONSULTANT shall withhold an amount of moneys due the Subconsultant sufficient to pay those employees the general prevailing rate of per diem wages if requested by CITY.
8. Hours of Labor. Eight (8) hours labor constitutes a legal day's work. The CONSULTANT shall forfeit, as a penalty to the CITY, twenty-five dollars ($25) for each worker employed in the execution of the DRAFT
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AGREEMENT by the CONSULTANT or any of its Subconsultants for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week in violation of the pro visions of the Labor Code, and in particular §§1810 to 1815 thereof, inclusive, except that work performed by employees in excess of eight (8) hours per day, and forty (40) hours during any one week, shall be permitted upon compensation for all hours worked in excess of eight (8) hours per day and forty (40) hours in any week, at not less than one and one-half (1.5) times the basic rate of pay, as provided in §1815.
9. Employment of Apprentices
A. Where either the prime AGREEMENT or the subagreement exceeds thirty thousand dollars ($30,000), the CONSULTANT and any subconsultants under him or her shall comply with all applicable requirements of Labor Code §§ 1777.5, 1777.6 and 1777.7 in the employ ment of apprentices.
B. CONSULTANTs and subconsultants are required to comply with all Labor Code requirements regarding the employment of apprentices, including mandatory ratios of journey level to apprentice workers. Prior to commencement of work, CONSULTANT and subconsultan ts are advised to contact the DIR Division of Apprenticeship Standards website at https://www.dir.ca.gov/das/, for additional information regarding the employment of apprentices and for the specific journey -to- apprentice ratios for the AGREEMENT work. The CONSULTANT is responsible for all subconsultants’ compliance with these requirements. Penalties are specified in Labor Code §1777.7
10. California Labor Code Sections 1860 and 3700 provide that every contractor will be required to secure the payment of compensation to its employees. In accordance with the provisions of California Labor Code Section 1861, CONSULTANT hereby certifies as follows:
“I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this Agreement.
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EXHIBIT C
DISADVANTAGED BUSINESS ENTERPRISES (DBE) PARTICIPATION
A. CONSULTANT, subrecipient (CITY), or subconsultant shall take necessary and reasonable steps to ensure that DBEs have opportunities to participate in the contract (49 CFR 26). To ensure equal participation of DBEs provided in 49 CFR 26.5, the CITY shows a contract goal for DBEs.
CONSULTANT shall make work available to DBEs and select work parts consistent with available DBE subconsultants and suppliers.
CONSULTANT shall meet the DBE goal shown elsewhere in these special provisions or demonstrate that they made adequate Good Faith Efforts (GFE) to meet this goal. It is CONSULTANT’s responsibility to verify at date of proposal opening that the DBE firm is certified as a DBE by using the California Unified Certification Program (CUCP) database and possesses the most specific available North American Industry Classification System (NAICS) codes and work code applicable to the type of work the firm will perform on the contract. Additionally, the CONSULTANT is responsible to document the verification record by printing out the CUCP data for each DBE firm. A list of DBEs certified by the CUCP can be found at https://dot.ca.gov/programs/civil-rights/dbe-search.
All DBE participation will count toward the California Department of Transportation’s federally mandated statewide overall DBE goal. Credit for materials or supplies CONSULTANT purchases from DBEs counts towards the goal in the following manner:
• 100 percent counts if the materials or supplies are obtained from a DBE manufacturer.
• 60 percent counts if the materials or supplies are purchased from a DBE regular dealer.
• Only fees, commissions, and charges for assistance in the procurement and delivery of materials or supplies count if obtained from a DBE that is neither a manufacturer nor regular dealer. 49 CFR 26.55 defines "manufacturer" and "regular dealer."
This AGREEMENT is subject to 49 CFR 26 entitled “Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs”. CONSULTANTs who enter into a federally -funded agreement will assist the CITY in a good faith effort to achieve California's statewide overall DBE goal.
B. The goal for DBE participation for this AGREEMENT is 22%. Participation by DBE CONSULTANT or subconsultants shall be in accordance with information contained in Exhibit 10 - O2: Consultant Contract DBE Commitment attached hereto and incorporated as part of the AGREEMENT. If a DBE subconsultant is unable to perf orm, CONSULTANT must make a good faith effort to replace him/her with another DBE subconsultant, if the goal is not otherwise met.
C. CONSULTANT can meet the DBE participation goal by either documenting commitments to DBEs to meet the AGREEMENT goal, or by documenting adequate good faith efforts to meet the AGREEMENT goal. An adequate good faith effort means that the CONSULTANT must show that it took all necessary and reasonable steps to achieve a DBE goal that, by their scope, intensity, and appropriateness to the objective, could reasonably be expected to meet the DBE goal. If CONSULTANT has not met the DBE goal, complete and submit Exhibit 15-H: Proposer/Contractor Good Faith Efforts to document efforts to meet the goal. Refer to 49 CFR 26 for guidance regarding evaluation of good faith efforts to meet the DBE goal.
D. Contract Assurance
Under 49 CFR 26.13(b):
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CONSULTANT, subrecipient or subconsultant shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. CONSULTANT shall carry out applicable requirements of 49 CFR 26 in the award and administration of federal-aid contracts.
Failure by the CONSULTANT to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the recipient deems appropriate, which may include, but is not limited to: (1) Wit hholding monthly progress payments; (2) Assessing sanctions; (3) Liquidated damages; and/or (4) Disqualifying CONSULTANT from future proposing as non-responsible
E. Termination and Replacement of DBE Subconsultants . CONSULTANT shall utilize the specific DBEs listed to perform the work and supply the materials for which each is listed unless CONSULTANT or DBE subconsultant obtains the CITY’s written consent. CONSULTANT shall not terminate or replace a listed DBE for convenience and perform the work with their own forces or obtain materials from other sources without authorization from the CITY. Unless the CITY’s consent is provided, the CONSULTANT shall not be entitled to any payment for work or material unless it is performed or supplied by the listed DBE on the Exhibit 10 -02: Consultant Contract DBE Commitment form.
Termination of DBE Subconsultants . After execution of the AGREEMENT, termination of a DBE may be allowed for the following, but not limited to, justifiable reasons with prior written authorization from the CITY:
1. Listed DBE fails or refuses to execute a written contract based on plans and specifications for the project.
2. The CITY stipulated that a bond is a condition of executing the subcontract and the listed DBE fails to meet the CITY’s bond requirements.
3. Work requires a consultant's license and listed DBE does not have a valid license under Contractors License Law.
4. Listed DBE fails or refuses to perform the work or furnish the listed materials (failing or refusing to perform is not an allowable reason to remove a DBE if the failure or refusal is a result of bad faith or discrimination).
5. Listed DBE's work is unsatisfactory and not in compliance with the contract.
6. Listed DBE is ineligible to work on the project because of suspension or debarment.
7. Listed DBE becomes bankrupt or insolvent or exhibits credit unworthiness.
8. Listed DBE voluntarily withdraws with written notice from the Contract.
9. Listed DBE is ineligible to receive credit for the type of work required.
10. Listed DBE owner dies or becomes disabled resulting in the inability to perform the work on the Contract.
11. The CITY determines other documented good cause.
CONSULTANT must use the following procedures to request the termination of a DBE or portion of a DBE’s work:
1. Send a written notice to the DBE of the CONSULTANT’s intent to use other forces or material sources and include one or more justifiable reasons listed above. Simultaneously send a copy of this written notice to the CITY. The written notice to the DBE must request they provide any DRAFT
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response within five (5) business days to both the CONSULTANT and the CITY by either acknowledging their agreement or documenting their reasoning as to why the use of other forces or sources of materials should not occur.
2. If the DBE does not respond within five (5) business days, CONSULTANT may move forward with the request as if the DBE had agreed to CONSULTANT’s written notice.
3. Submit CONSULTANT’s DBE termination request by written letter to the CITY and include:
• One or more above listed justifiable reasons along with supporting documentation.
• CONSULTANT’s written notice to the DBE regarding the request, including proof of transmission and tracking documentation of CONSULTANT’s written notice
• The DBE's response to CONSULTANT’s written notice, if received. If a written response was not provided, provide a statement to that effect.
The CITY shall respond in writing to CONSULTANT’s DBE termination request within five (5) business days.
Replacement of DBE Subconsultants . After receiving the CITY’s written authorization of DBE termination request, CONSULTANT must obtain the CITY’s written agreement for DBE replacement. CONSULTANT must find or demonstrate GFEs to find qualified DBE replacement firms to perform the work to the extent needed to meet the DBE commitment.
The following procedures shall be followed to request authorization to replace a DBE firm:
1. Submit a request to replace a DBE with other forces or material sources in writing to the CITY which must include:
a. Description of remaining uncommitted work item made available for replacement DBE solicitation and participation.
b. The proposed DBE replacement firm's business information, the work they have agreed to perform, and the following:
• Description of scope of work and cost proposal
• Proposed subcontract agreement and written confirmation of agreement to perform on the Contract
• Revised Exhibit 10-O2: Consultant Contract DBE Commitment
2. If CONSULTANT has not identified a DBE replacement firm, submits documentation of CONSULTANT’s GFEs to use DBE replacement firms within seven (7) days of CITY's authorization to terminate the DBE. CONSULTANT may request the CITY's approval to extend this submittal period to a total of 14 days. Submit documentation of actions taken to find a DBE replacement firm, such as:
• Search results of certified DBEs available to perform the original DBE work identified and or other work CONSULTANT had intended to self -perform, to the extent needed to meet DBE commitment
• Solicitations of DBEs for performance of work identified • Correspondence with interested DBEs that may have included contract details and requirements
• Negotiation efforts with DBEs that reflect why an agreement was not reached DRAFT
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• If a DBE's quote was rejected, provide reasoning for the rejection, such as why the DBE was unqualified for the work, or why the price quote was unreasonable or excessive
• Copies of each DBE's and non-DBE's price quotes for work identified, as the CITY may contact the firms to verify solicitation efforts and determine if the DBE quotes are substantially higher
• Additional documentation that supports CONSULTANT’s GFE The CITY shall respond in writing to CONSULTANT’s DBE replacement request within five (5) business days.
F. Commitment and Utilization The CITY’s DBE program must include a monitoring and enforcement mechanism to ensure that DBE commitments reconcile to DBE utilization. The CITY shall request CONSULTANT to:
1. Notify the CITY’s contract administrator or designated representative of any changes to its anticipated DBE participation
2. Provide this notification before starting the affected work
3. Maintain records including:
• Name and business address of each 1st -tier subconsultant
• Name and business address of each DBE subconsultant, DBE vendor, and DBE trucking company, regardless of tier
• Date of payment and total amount paid to each business (see Exhibit 9 -F: Monthly Disadvantaged Business Enterprise Payment)
If CONSULTANT is a DBE CONSULTANT, they shall include the date of work performed by their own forces and the corresponding value of the work.
If a DBE is decertified before completing its work, the DBE must notify CONSULTANT in writing of the decertification date. If a business becomes a certified DBE before completing its work, the business must notify CONSULTANT in writing of the certification date. CONSULTANT shall submit the notifications to the CITY. On work completion, CONSULTANT shall complete Exhibit 17 -O:
Disadvantaged Business Enterprises (DBE) Certification Status Change and submit the form to the CITY within 30 days of contract acceptance.
Upon work completion, CONSULTANT shall complete Exhibit 17 -F: Final Report – Utilization of Disadvantaged Business Enterprises (DBE), First -Tier Subcontractors and submit it to the CITY within 90 days of contract acceptance. The CITY will withhold $10,000 until the form is submitted.
The CITY will release the withhold upon submission of the completed form.
In the CITY’s reports of DBE participation to Caltrans, the CITY must display both commitments and attainments.
G. Commercially Useful Function. DBEs must perform a commercially useful function (CUF) under 49 CFR 26.55 when performing work or supplying materials listed on the DBE Commitment form. The DBE value of work will only count toward the DBE commitment if the DBE performs a CUF. A DBE performs a CUF when it is responsible for execution of the work of the AGREEMENT and is carrying out its responsibilities by actually performing, managing, and supervising the work involved. To perform a CUF, the DBE must also be responsible, with respect to materials and supplies used on the AGREEMENT, for negotiating price, determining quality and quantity, ordering the material and installing (where applicable), and paying for the material itself.
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CONSULTANT must perform CUF evaluation for each DBE working on a federal -aid contract, with or without a DBE goal. Perform a CUF evaluation at the beginning of the DBE’s work and continue to monitor the performance of CUF for the duration of the project.
CONSULTANT must provide written notification to the CITY at least 15 days in advance of each DBE's initial performance of work or supplying materials for the Contract. The notification must include the DBE's name, work the DBE will perform on the contract, and the location, date, and time of where their work will take place.
Within 10 days of a DBE initially performing work or supplying materials on the Contract, CONSULTANT shall submit to the LPA the initial evaluation and validation of DBE performance of a CUF using the LAPM 9-J: Disadvantaged Business Enterprise Commerciall y Useful Function Evaluation. Include the following information with the submittal:
• Subcontract agreement with the DBE
• Purchase orders
• Bills of lading • Invoices
• Proof of payment CONSULTANT must monitor all DBE’s performance of CUF by conducting quarterly evaluations and validations throughout their duration of work on the Contract using the LAPM 9-J: DBE Commercially Useful Function Evaluation.
CONSULTANT must submit to the CITY these quarterly evaluations and validations by the 5th of the month for the previous three months of work.
CONSULTANT must notify the CITY immediately if they believe the DBE may not be performing a CUF.
The CITY will verify DBEs performance of CUF by reviewing the initial and quarterly submissions of LAPM 9 -J: DBE Commercially Useful Function Evaluation, submitted supporting information, field observations, and through any additional CITY evaluations. The CITY must evaluate DBEs and their CUF performance throughout the duration of a Contract. The CITY will provide written notice to the CONSULTANT and the DBE at least two (2) business days prior to any evaluation. The CONSULTANT and the DBE must participate in the evaluation. Upon completing the evaluation, the CITY must share the evaluation results with the CONSULTANT and the DBE. An evaluation could include items that must be remedied upon receipt. If the CITY determines the DBE is not performing a CUF, the CONSULTANT must suspend performance of the noncompliant work.
CONSULTANT and DBEs must submit any additional CUF related records and documents within five (5) business days of CITY’s request such as:
• Proof of ownership or lease and rental agreements for equipment
• Tax records
• Employee rosters
• Certified payroll records
• Inventory rosters.
Failure to submit required DBE Commercially Useful Function Evaluation forms or requested records and documents can result in withholding of payment for the value of work completed by the DBE.
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If CONSULTANT and/or the CITY determine that a listed DBE is not performing a CUF in performance of their DBE committed work, CONSULTANT must immediately suspend performance of the noncompliant portion of the work. CITY may deny payment for the noncompliant portion of the work.
CITY will ask the CONSULTANT to submit a corrective action plan (CAP) to the LOCAL AGENGY within five (5) days of the noncompliant CUF determination. The CAP must identify how the CONSULTANT will correct the noncompliance findings fo r the remaining portion of the DBE's work.
CITY has five (5) days to review the CAP in conjunction with the CONSULTANT’s review. The CONSULTANT must implement the CAP within five (5) days of the CITY's approval. The CITY will then authorize the prior noncompliant portion of work for the DBE's committed work.
If corrective actions cannot be accomplished to ensure the DBE performs a commercially useful function on the Contract, CONSULTANT may have good cause to request termination of the DBE.
H. A DBE does not perform a CUF if its role is limited to that of an extra participant in a transaction, AGREEMENT, or project through which funds are passed in order to obtain the appearance of DBE participation. In determining whether a DBE is such an extra participant, examine similar transactions, particularly those in which DBEs do not participate.
I. If a DBE does not perform or exercise responsibility for at least thirty percent (30%) of the total cost of its AGREEMENT with its own work force, or the DBE subcontracts a greater portion of the work of the AGREEMENT than would be expected on the basis of normal industry practice for the type of work involved, it will be presumed that it is not performing a CUF.
J. CONSULTANT shall maintain records of materials purchased or supplied from all subcontracts entered into with certified DBEs. The records shall show the name and business address of each DBE or vendor and the total dollar amount actually paid each DBE or ve ndor, regardless of tier.
The records shall show the date of payment and the total dollar figure paid to all firms. DBE CONSULTANT’s shall also show the date of work performed by their own forces along with the corresponding dollar value of the work.
K. If a DBE subconsultant is decertified during the life of the AGREEMENT, the decertified subconsultant shall notify CONSULTANT in writing with the date of decertification. If a subconsultant becomes a certified DBE during the life of the AGREEMENT, the subconsultant shall notify CONSULTANT in writing with the date of certification. Any changes should be reported to CITY’s Contract Administrator within thirty (30) calendar days.
L. For projects awarded on or after March 1, 2020, but before September 1, 2023: after submitting an invoice for reimbursement that includes a payment to a DBE, but no later than the 10th of the following month, the prime contractor/consultant must complete a nd email Exhibit 9 -F:
Disadvantaged Business Enterprise Running Tally of Payments to [email protected] with a copy to local administering agencies. For projects awarded on or after September 1, 2023: Exhibit 9 -F is no longer required. In stead, by the 15th of the month following the month of any payment(s), the CONSULTANT must now submit Exhibit 9 - P to the CITY administering the contract. If the CONSULTANT does not make any payments to subconsultants, supplier(s), and/or manufacturers they must report “no payments were made to subs this month” and write this visibly and legibly on Exhibit 9 -P. M. Any subcontract entered into as a result of this AGREEMENT shall contain all of the provisions of this section.
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EXHIBIT D
TITLE VI ASSURANCES
During the performance of this Agreement, the contractor, for itself, its assignees and successors in interest (hereinafter collectively referred to as CONSULTANT) agrees as follows:
a. Compliance with Regulations: CONSULTANT shall comply with the regulations relative to nondiscrimination in federally assisted programs of the Department of Transportation, Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to time, (hereinafter referred to as the REGULATIONS), which are herein incorporated by reference and made a part of this agreement.
b. Nondiscrimination: CONSULTANT, with regard to the work performed by it during the AGREEMENT, shall not discriminate on the grounds of race, color, sex, national origin, religion, age, or disability in the selection and retention of sub-applicants, including procurements of materials and leases of equipment.
CONSULTANT shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the Regulations, including employment practices when the agreement covers a program set forth in Appendix B of the Regulations.
c. Solicitations for Sub -agreements, Including Procurements of Materials and Equipment: In all solicitations either by competitive bidding or negotiation made by CONSULTANT for work to be performed under a Sub- agreement, including procurements of materials or leases of equipment, each potential sub -applicant or supplier shall be notified by CONSULTANT of the CONSULTANT’S obligations under this Agreement and the Regulations relative to nondiscrimination on the grounds of race, color, or national origin.
d. Information and Reports: CONSULTANT shall provide all information and reports required by the Regulations, or directives issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the recipient or FHWA to be pertinent to ascertain compliance with such Regulations or directives. Where any information required of CONSULTANT is in the exclusive possession of another who fails or refuses to furnish this information, CONSULTANT shall so certify to the recipient or FHWA as appropriate, and shall set forth what efforts CONSULTANT has made to obtain the information.
e. Sanctions for Noncompliance: In the event of CONSULTANT’s noncompliance with the nondiscrimination provisions of this agreement, the recipient shall impose such agreement sanctions as it or the FHWA may determine to be appropriate, including, but not l imited to: i. withholding of payments to CONSULTANT under the Agreement within a reasonable period of time, not to exceed 90 days; and/or ii. cancellation, termination or suspension of the Agreement, in whole or in part.
f. Incorporation of Provisions: CONSULTANT shall include the provisions of paragraphs (1) through (6) in every sub-agreement, including procurements of materials and leases of equipment, unless exempt by the Regulations, or directives issued pursuant thereto.
CONSULTANT shall take such action with respect to any sub -agreement or procurement as the recipient or FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance, provided, however, that, in the event CONSULTANT becomes i nvolved in, or is threatened with, litigation with a sub-applicant or supplier as a result of such direction, CONSULTANT may request the recipient enter into such litigation to protect the interests of the State, and, in addition, CONSULTANT may request th e United States to enter into such litigation to protect the interests of the United States.
During the performance of this contract, the CONSULTANT, for itself, its assignees, and successors in interest (hereinafter referred to as the “CONSULTANT”) agrees to comply with the following nondiscrimination statutes and authorities, including, but not limited to:
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Pertinent Non-Discrimination Authorities:
• Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), prohibits discrimination on the basis of race, color, national origin); and 49 CFR Part 21.
• The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal-aid programs and projects);
• Federal-Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), prohibits discrimination on the basis of sex; • Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, (prohibits discrimination on the basis of disability); and 49 CR Part 27;
• The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), prohibits discrimination on the basis of age); • Airport and Airway Improvement Act of 1982, (49 U.S.C. § 471, Section 47123), as amended, (prohibits discrimination based on rac e, creed, color, national origin, or sex);
• The Civil Rights Restoration Act of 1987, (PL 100 -209), (Broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms “programs or activities” to include all of the programs or activities of the Federal-aid recipients, sub-recipients and contractors, whether such programs or activities are Federally funded or not);
• Titles II and III of the Americans with Disabilities Act, which prohibit discrimination of the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 U.S.C. §§ 12131 – 12189) as implemented by Department of Transportation regulations 49 C.F.R. parts 37 and 38;
• The Federal Aviation Administration’s Non -discrimination statute (49 U.S.C. § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex);
• Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low -Income Populations, which ensures discrimination against minority populations by discouraging programs, policies, and activities with disproportionat ely high and adverse human health or environmental effects on minority and low-income populations;
• Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of Limited English Proficiency (LEP). To ensure compliance wi th Title VI, you must take reasonable steps to ensure that LEP persons have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100);
• Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 U.S.C.1681 et seq).
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EXHIBIT E
LEVINE ACT DISCLOSURE STATEMENT
California Government Code section 84308, commonly referred to as the “Levine Act,” precludes an elected or appointed officer of a local government agency from making, participating in, or in any way attempting to influence the awarding of a contract by the agency if the officer receives any political contributions totaling more than $500 in the 12 months preceding the contract award, during the proceeding leading to the contract award, and for 12 months following the final decision on the contract , when the contribution is from any person that has a financing interest in the contract. This prohibition applies to contributions made directly to the officer , received by the officer on behalf of any other officer, or received on behalf of any candidate for office or on behalf of any committee. The Levine Act also requires disclosure of any such contributions to be made by a party to be awarded a contract by the CITY. The Levine Act does not apply to contracts that are competitively bid, labor, or personal employment contracts.
LEVINE ACT DISCLOSURES:
1. Have you or your company, or any agent on behalf of you or your company, made any contributions of more than $500 to any member of the Buena Park City Council in the 12 months preceding the date the City issued the request for proposal s leading to the contract?
YES ___ NO ___
If yes, please identify the Councilmember(s) and amount of any such campaign contribution(s):
2. Do you or your company, or any agency on behalf of you or your company, anticipate or plan to make any contributions of more than $500 to any member of the Buena Park City Council after the date of the issuance of the request for proposals, or in the 12 months after the City Council’s decision on the contract?
YES ___ NO ___
If yes, please identify the Councilmember(s):
NOTE: Answering yes to either of the two (2) questions above does not preclude the City of Buena Park from awarding a contract to your firm. It does, however, preclude the identified officer(s) from making, participating in, or in any way attempting to influence the contract award process.
Failing to provide full and accurate information on this form may be grounds for disqualification and other legal penalties.
_______________________ _____________________________________
DATE SIGNATURE OF AUTHORIZED OFFICIAL
_______________________ _____________________________________
NAME OF COMPANY NAME, TITLE
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City of Buena Park
City Council Regular Meeting Agenda Report
C. RESOLUTION ESTABLISHING NEW RATES FOR THE COLLECTION, RECYCLING, AND DISPOSAL OF REFUSE
AND APPROVAL OF A UTILITY BILL INSERT REGARDING THE NEW RESIDENTIAL REFUSE RATES Meeting
Tuesday, May 27, 2025, 5:00 PM
Agenda Group
NEW BUSINESS Item: 5C.
Prepared By
Joe Hunt, Public Works Manager
Department Head Approval
Mina Mikhael, Director of Public Works/City Engineer
Presented By
Joe Hunt, Public Works Manager
RECOMMENDED ACTION
1) Adopt a Resolution establishing new rates for the collection, recycling, and disposal of refuse; and, 2) Approve a utility bill insert notifying residential customers of a refuse rate adjustment effective July 1, 2025.
PREVIOUS CITY COUNCIL ACTION
On July 13, 2021, the City Council adopted a resolution establishing new rates for the collection, recycling, and disposal of refuse. This resolution established that, without conducting another noticed public hearing, annually on each July 1, beginning July 1, 2022, and continuing through July 1, 2026, the City Council may increase the rates for inflation by the annual percentage increase in the Los Angeles-Riverside-Orange County CA Consumer Price Index.
For any fiscal year in which the City Council does not increase rates by the authorized adjustment, the City Council may add the amount of the authorized increase for such fiscal year to the authorized adjustment in subsequent fiscal years.
DISCUSSION
The request for the proposed rate increase is based upon the City's existing refuse collection franchise agreement ("Agreement") with EDCO, the City's waste hauler. The Agreement provides for increases in refuse rates in the event that circumstances beyond the control of the Contractor impose or generate excessive costs in the performance of the Agreement. In this case, EDCO has seen increases to the Consumer Price Index (CPI) that impact their costs to collect, recycle, and dispose of refuse at County landfills. Cost increases include tipping fees at county landfills increasing by $1.11/ton (2.6%), increased cost of fuel for vehicles, compensation for employees, and the price of trucks and other equipment necessary to operate.
On the commercial side, EDCO proposes an overall increase of about 3.2% for waste disposal and 3.424% for recycling and organics processing. This would increase the cost of a three-cubic yard trash bin with separate 96- gallon recycling container from $180.63/mo to $186.52/mo. A commercial 65-gallon organics container would increase from $99.36/mo to $102.76/mo.
On the residential side, EDCO proposes an overall increase of 4.4%, or $1.09/mo for service including waste, recycling, and organics processing. This includes a 2.88% increase in collection service charges that EDCO deferred implementing in 2024.
As the proposed fee increases are limited to the CPI, a public hearing and extended notice period are not required for implementation. However, upon approval, the Finance Department will include notice in utility bills prior to the fee being implemented. Generally, this means customers will not see fee increases on their bills until August.
BUDGET IMPACT
Estimated costs and revenues associated with refuse services are included in the proposed FY 2025-26 budget.
Printing costs for the associated mailer are estimated at approximately $1,500.
Attachments
Reso 2025 Refuse Rate Adjustment.pdf
proposed 25-26 refuse rate.pdf
2025 RefuseRateIncrease_FULL MAILER.pdf
RESOLUTION NO. ______
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
BUENA PARK, CALIFORNIA, ESTABLISHING FEES AND
CHARGES FOR THE COLLECTION, REMOVAL, AND
DISPOSAL OF REFUSE, TRASH, RUBBISH, OR OTHER
FORMS OF SOLID WASTE IN ACCORDANCE WITH THE
AUTHORITY GRANTED BY SECTION 8.12.040 OF THE BUENA
PARK MUNICIPAL CODE
WHEREAS, Section 8.12.040 of the Buena Park Municipal Code grants to the City Council the authority to make necessary changes in the fees and charges for the collection, removal, and disposal of refuse, trash, rubbish, or other forms of solid waste; and
WHEREAS, on July 13, 2021, the City determined that, without conducting another noticed public hearing, annually on each July 1, beginning July 1, 2022, and continuing through July 1, 2026, the City Council may increase the rates for inflation by the annual percentage increase in the Los Angeles-Riverside-Orange County CA Consumer Price Index. For any fiscal year in which the City Council does not increase rates by the authorized adjustment, the City Council may add the amount of the authorized increase for such fiscal year to the authorized adjustment in subsequent fiscal years.
WHEREAS, the City Council of the City of Buena Park has determined that the amended fees and charges are required to offset the current and future increases in the cost of providing collection, removal, and disposal of refuse, trash, rubbish, or other forms of solid waste.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BUENA PARK, CALIFORNIA, DOES RESOLVE, DECLARE, DETERMINE AND ORDER AS FOLLOWS:
Section 1. Rates for residential and commercial customers as of July 1, 2025, shall be those as listed on Exhibit A to this Resolution.
PASSED AND ADOPTED this 27th day of May 2025 by the following called vote:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
ABSTAIN: COUNCILMEMBERS:
_______________________________________
Mayor
ATTEST:
_______________________________
RESOLUTION NO. _______
City Clerk
I, Adria M. Jimenez, MMC, City Clerk of the City of Buena Park, California, hereby certify that the foregoing resolution was duly and regularly passed and adopted at a regular meeting of the City Council of the City of Buena Park, held this _____ day of ________________ _____.
______________________________________
City Clerk
CITY OF BUENA PARK
(rates effective 7/1/25)
Current Rates Service Tip Fee Recycle
Res/Temp Bin 5.697% 2.603% 2.873%
Comm 3.424% 2.603% 3.424%
Service Tip Fee Recycle Total Service Tip Fee Recycle Service Tip Fee Recycle Total $ Increase %
Increase
Residential $13.89 $5.85 $5.28 $25.02 $0.79 $0.15 $0.15 $14.68 $6.00 $5.43 $26.11 $1.09 4.4% 3 Cubic Yard Trash Bin (includes 1 96gal Recycling Cart 1X) 1 $143.92 $36.71 $0.00 $180.63 $4.93 $0.96 $0.00 $148.85 $37.67 $0.00 $186.52 $5.89 3.3% 2 $237.69 $73.39 $0.00 $311.08 $8.14 $1.91 $0.00 $245.83 $75.30 $0.00 $321.13 $10.05 3.2% 3 $332.57 $110.10 $0.00 $442.67 $11.39 $2.87 $0.00 $343.96 $112.97 $0.00 $456.93 $14.26 3.2% 4 $427.32 $146.80 $0.00 $574.12 $14.63 $3.82 $0.00 $441.95 $150.62 $0.00 $592.57 $18.45 3.2% 5 $522.16 $183.51 $0.00 $705.67 $17.88 $4.78 $0.00 $540.04 $188.29 $0.00 $728.33 $22.66 3.2% 6 $616.96 $220.21 $0.00 $837.17 $21.12 $5.73 $0.00 $638.08 $225.94 $0.00 $864.02 $26.85 3.2% 3 Cubic Yard Trash Compactor (includes 1 96gal Recycling Cart 1X) 1 $246.64 $73.39 $0.00 $320.03 $8.44 $1.91 $0.00 $255.08 $75.30 $0.00 $330.38 $10.35 3.2% 2 $440.93 $146.80 $0.00 $587.73 $15.10 $3.82 $0.00 $456.03 $150.62 $0.00 $606.65 $18.92 3.2% 3 $635.50 $220.21 $0.00 $855.71 $21.76 $5.73 $0.00 $657.26 $225.94 $0.00 $883.20 $27.49 3.2% 4 $829.86 $293.61 $0.00 $1,123.47 $28.41 $7.64 $0.00 $858.27 $301.25 $0.00 $1,159.52 $36.05 3.2% 5 $1,024.34 $367.01 $0.00 $1,391.35 $35.07 $9.55 $0.00 $1,059.41 $376.56 $0.00 $1,435.97 $44.62 3.2% 6 $1,218.86 $440.41 $0.00 $1,659.27 $41.73 $11.46 $0.00 $1,260.59 $451.87 $0.00 $1,712.46 $53.19 3.2% 4 Cubic Yard Bin (includes 1 96gal Recycling Cart 1X)
1 $176.18 $48.93 $0.00 $225.11 $6.03 $1.27 $0.00 $182.21 $50.20 $0.00 $232.41 $7.30 3.2% 2 $301.65 $97.87 $0.00 $399.52 $10.33 $2.55 $0.00 $311.98 $100.42 $0.00 $412.40 $12.88 3.2% 3 $428.39 $146.80 $0.00 $575.19 $14.67 $3.82 $0.00 $443.06 $150.62 $0.00 $593.68 $18.49 3.2% 4 $555.20 $195.74 $0.00 $750.94 $19.01 $5.09 $0.00 $574.21 $200.83 $0.00 $775.04 $24.10 3.2% 5 $682.08 $244.68 $0.00 $926.76 $23.35 $6.37 $0.00 $705.43 $251.05 $0.00 $956.48 $29.72 3.2% 6 $808.93 $293.61 $0.00 $1,102.54 $27.70 $7.64 $0.00 $836.63 $301.25 $0.00 $1,137.88 $35.34 3.2% Commercial Cans $24.49 $4.09 $0.00 $28.58 $0.84 $0.11 $0.00 $25.33 $4.20 $0.00 $29.53 $0.95 3.3% Roll-off Bodies TPL
Regular-P 5.00 $340.43 $474.51 $0.00 $814.94 $0.00 $0.00 $0.00 $340.43 $474.51 $0.00 $814.94 $0.00 0.0% Compacted-P 7.00 $365.28 $664.32 $0.00 $1,029.60 $0.00 $0.00 $0.00 $365.28 $664.32 $0.00 $1,029.60 $0.00 0.0% Hard to Handle-T 4.00 $340.02 $379.61 $0.00 $719.63 $0.00 $0.00 $0.00 $340.02 $379.61 $0.00 $719.63 $0.00 0.0% Const/Demo-T 4.00 $340.02 $379.61 $0.00 $719.63 $0.00 $0.00 $0.00 $340.02 $379.61 $0.00 $719.63 $0.00 0.0% Additional Residential
Trash Cart $5.07 $0.00 $0.00 $5.07 $0.29 $0.00 $0.00 $5.36 $0.00 $0.00 $5.36 $0.29 5.7% Temporary Drop Off Bin $79.04 $46.93 $0.00 $125.97 $4.50 $1.22 $0.00 $83.54 $48.15 $0.00 $131.69 $5.72 4.5% Rate % Index Change
New Rates Effective 7/1/25
1 od 3 4/16/2025
City of Buena Park City of Buena Park
Current Rates 7/1/2024 Proposed Rates 7/1/2025
Commercial Comingled Organics Commercial Comingled Organics CPI 3.424%
1st Bin Frequency Extra 1st Bin Frequency Extra
Size 1 2 3 Pickup Size 1 2 3 Pickup
Cart (65 gl) $99.36 $198.74 $298.11 $39.74 Cart (65 gl) $102.76 $205.54 $308.32 $41.10 Cart (96 gl) $110.30 $220.61 $330.92 $44.11 Cart (96 gl) $114.08 $228.16 $342.25 $45.62 2 CY $215.18 $430.36 $645.55 $86.08 2 CY $222.55 $445.10 $667.65 $89.03 Each Additional Bin Each Additional Bin
Size 1 2 3 Size 1 2 3
Cart (65 gl) $94.40 $188.81 $283.20 Cart (65 gl) $97.63 $195.27 $292.90 Cart (96 gl) $104.79 $209.58 $314.37 Cart (96 gl) $108.38 $216.76 $325.13 2 CY $204.43 $408.85 $613.28 2 CY $211.43 $422.85 $634.28 Commercial Comingled Recycling Commercial Comingled Recycling CPI 3.424%
Frequency Extra Frequency Extra
Size 1 2 3 Pickup Size 1 2 3 Pickup
Cart (96 gl) $48.74 $97.46 $146.20 $24.37 Cart (96 gl) $50.41 $100.80 $151.21 $25.20 3 CY $97.46 $194.93 $292.40 $48.74 3 CY $100.80 $201.60 $302.41 $50.41 2 od 3 4/16/2025
7/1/25 Rate Adjustments
Series Id:
Series Title:
Area:
Item:
Base Period:
Res
Recycling
Inde
x
Res Service
Index
Res
Landfill
Index
Comm
Service,
Organics,
Recycle
Index
Years:
Year Jan Feb Mar Ap r May Jun Jul Aug Sep Oct No v Dec
2015 239.724 241.297 243.738 243.569 246.093 245.459 247.066 246.328 245.431 245.812 245.711 245.357 2016 247.155 247.113 247.873 248.368 249.554 249.789 249.784 249.700 250.145 251.098 250.185 250.189 2017 252.373 253.815 254.525 254.971 255.674 255.275 256.023 256.739 257.890 258.883 259.135 259.220 2018 261.235 263.012 264.158 265.095 266.148 265.522 266.007 266.665 268.032 269.482 268.560 267.631 2019 269.468 269.608 271.311 273.945 274.479 274.380 274.682 274.579 276.054 278.075 277.239 275.553 2020 277.755 278.657 276.589 275.853 276.842 278.121 279.899 280.116 279.366 279.947 280.102 279.560 2021 280.178 281.347 282.648 285.808 287.620 289.218 290.890 291.333 292.209 294.961 296.790 297.925 2022 301.209 302.164 306.679 308.302 310.649 314.072 313.415 313.608 315.033 317.014 314.633 312.601 2023 318.591 317.571 317.873 320.089 320.514 322.055 321.931 324.050 324.984 324.545 323.341 323.456 2024 326.640 328.232 330.671 332.572 332.956 332.357 332.928 333.359 334.123 334.242 333.718 334.531 2025 337.508
Change 9.309 9.139 9.697 11.075
% Change 2.873% 2.812% 2.988% 3.424%
2.60% Deferred from 7/1/2023 2.88%
Commercial Disposal Index Current
7/1/2025 Increase % Incr Eff 7/1/25 2.873% 5.697% 2.988% OC Tip Fee/Ton $42.65 $43.76 $1.11 2.60%
2015 to 2025
Consumer Price Index for All Urban Consumers (CPI-U)
Original Data Value
CUURS49ASA0
Not Seasonally Adjusted
All items in Los Angeles-Long Beach-Anaheim, CA, all urban Los Angeles-Long Beach-Anaheim, CA
All items
1982-84=100
3 od 3 4/16/2025
N o t i c e i s h e r e b y g i v e n t h a t t h e f o l l o w i n g r e f u s e r a t e i n c r e a s e s w i l l t a k e e f f e c t o n J u l y 1 , 2 0 2 5 .
T h e m o n t h l y b a s e r a t e f o r r e f u s e s e r v i c e s i s c o m p r i s e d o f t h r e e c o m p o n e n t s : 1 ) a n a m o u n t f o r t h e a d - m i n i s t r a t i o n a n d o p e r a t i o n o f a u t o m a t e d a n d m a n u a l c u r b s i d e c o l l e c t i o n s e r v i c e s ( t h e s e r v i c e c o m p o - n e n t ) ; 2 ) a n a m o u n t f o r t h e h a u l e r t o d i s p o s e o f t h e r e f u s e i n t h e l a n d f i l l ( t h e l a n d f i l l f e e ) ; a n d 3 ) a n a m o u n t f o r r e c y c l i n g . T h e t o t a l a m o u n t o f t h e r e f u s e b i l l f o r e a c h r e s i d e n t i a l u n i t i s d e t e r m i n e d b y t h e q u a n t i t y o f r e f u s e c o n t a i n e r s .
A r a t e a d j u s t m e n t i s b e i n g a d d e d t o t h e s e r v i c e , r e c y c l i n g , a n d l a n d f i l l f e e c o m p o n e n t s d u e t o t h e i n - c r e a s i n g c o s t s o f p r o v i d i n g r e f u s e c o l l e c t i o n , r e c y c l i n g s e r v i c e s , l a n d f i l l d i s p o s a l , f u e l , w a g e s , a n d o t h e r p e r s o n n e l - r e l a t e d c o s t s .
T h e i n c r e a s e s a r e a s f o l l o w s :
I n a d d i t i o n , w i t h o u t c o n d u c t i n g a n o t h e r n o t i c e d p u b l i c h e a r i n g , a n n u a l l y o n e a c h J u l y 1 s t , b e g i n n i n g J u l y 1 , 2 0 2 5 , a n d c o n t i n u i n g t h r o u g h J u l y 1 , 2 0 2 6 , t h e C i t y p r o p o s e s t o i n c r e a s e t h e r a t e s a s f o l l o w s :
A d d i t i o n a l d a t a a n d i n f o r m a t i o n p e r t a i n i n g t o t h i s m a t t e r , i n c l u d i n g t h e r e f u s e r a t e s c h e d u l e , m a y b e o b t a i n e d f r o m t h e P u b l i c Wo r k s D e p a r t m e n t , 6 6 5 0 B e a c h B o u l e v a r d , B u e n a P a r k , C a l i f o r n i a , 9 0 6 2 2 .
N E W R A T E
C U R R E N T R A T E A S O F J U L Y 1 , 2 0 2 5 B a s e R a t e ( p e r m o n t h )
A d d i t i o n a l Wh e e l e d C o n t a i n e r ( p e r m o n t h ) 3 C u b i c Y a r d T e m p o r a r y B i n ( p e r u s e ) $ 2 5 . 0 2 $ 2 6 . 1 1
$ 5 . 0 7 $ 5 . 3 6
$ 1 2 5 . 9 7 $ 1 3 1 . 6 9
a . t h e s e r v i c e c o m p o n e n t o f t h e b a s e r a t e ( $ 1 4 . 6 8 a s o f 7 / 1 / 2 5 ) , t h e a d d i t i o n a l w h e e l e d c o n t a i n e r ( $ 5 . 3 6 a s o f 7 / 1 / 2 5 ) , a n d t h e 3 C u b i c Y a r d T e m p o r a r y B i n ( $ 8 3 . 5 4 a s o f 7 / 1 / 2 5 ) m a y b e i n c r e a s e d b y t h e a n n u a l p e r c e n t a g e i n c r e a s e i n t h e L o s A n g e l e s - R i v e r s i d e - O r a n g e C o u n t y C A C o n s u m e r P r i c e I n d e x f o r a l l U r b a n C o n s u m e r s b e t w e e n t h e t w o p r e v i o u s S e p t e m b e r s ; a n d b . t h e r e c y c l i n g c o m p o n e n t o f t h e b a s e r a t e ( $ 5 . 4 3 a s o f 7 / 1 / 2 5 ) m a y b e i n c r e a s e d b y t h e a n n u a l p e r c e n t - a g e i n c r e a s e i n t h e L o s A n g e l e s - R i v e r s i d e - O r a n g e C o u n t y C A C o n s u m e r P r i c e I n d e x f o r a l l U r b a n C o n - s u m e r s b e t w e e n t h e t w o p r e v i o u s A u g u s t s . T h e r e i s n o r e c y c l e f e e f o r t h e 3 C u b i c Y a r d T e m p o r a r y B i n . c . t h e l a n d f i l l f e e c o m p o n e n t o f t h e b a s e r a t e ( $ 6 . 0 0 a s o f 7 / 1 / 2 5 ) a n d t h e 3 C u b i c Y a r d T e m p o r a r y B i n ( $ 4 8 . 1 5 a s o f 7 / 1 / 2 5 ) m a y b e i n c r e a s e d b y t h e a n n u a l p e r c e n t a g e i n c r e a s e i n t h e A l l U r b a n C o n s u m e r s , U . S . c i t y a v e r a g e , A l l i t e m s , N o t S e a s o n a l l y A d j u s t e d , S e r i e s I D C U U R 0 0 0 0 S A 0 b e t w e e n t h e t w o p r e v i o u s O c t o b e r s .
C I T Y O F B U E N A P A R K
N o t i c e o f R e f u s e R a t e I n c r e a s e
2 0 2 5년 7월 1일 부터 다음과 같은 폐기물 수거비 인상이 시행됨을 알립니다 . 쓰레기 서비스에 대한 월 기본 요금은 세 가지 요소로 구성됩니다 :
1 ) 자동 및 수동 도로변 수거 서비스의 관리 및 운영 요금 (서비스 요소 ) ; 2 ) 운송업자가 쓰레기를 매립지에 처분하는 요금 (매립료 ) ; 그리고 3 ) 재활용 요금 . 세대별 폐기물 수거비 청구서 총액은 쓰레기통의 수량에 따라 결정됩니다 . 쓰레기 수거 , 재활용 서비스 , 매립지 처리 , 연료 , 임금 및 기타 인력 관련 비용의 인상으로 인해 서비스 요소 , 재활용 요금 및 매립료와 같은 폐기물 수거비 구성 요소의 요금 조정이 시행됩니다 . 증가 금액은 다음과 같습니다 :
또한 2 0 2 5년 7월 1일부터 2 0 2 6년 7월 1일까지 매년 7월 1일에 시정부는 다른 공청회를 실시하지 않고 다음과 같이 요금을 인상할 것을 제안합니다 :
폐기물 수거비 요금제를 포함한 기타 관련 추가 정보는 부에나팍 시 공공사업부 ( P u b l i c W o r k s D e p a r t m e n t ) , 6 6 5 0 B e a c h B o u l e v a r d , B u e n a P a r k , C a l i f o r n i a , 9 0 6 2 2 에서 문의할 수 있습니다 .
L o s e s t a m o s n o t i f i c a n d o p o r e s t e m e d i o q u e l o s s i g u i e n t e s a u m e n t o s d e l o s c o b r o s d e l a b a s u r a e n t r a r a n e n v i g o r e l 1 d e j u l i o 2 0 2 5 . E l c o b r o m e n s u a l d e s e r v i c i o s d e b a s u r a e s t á c o n s t a d e t r e s c o m p o n e n t e s ; 1 ) u n a c a n t i d a d p a r a l a a d m i n i s t r a c i ó n y o p e r a c i ó n d e l o s s e r v i c i o s d e r e c o l e c c i ó n a u t o m a t i z a d a y m a n u a l e n l a a c e r a ( s e r v i c i o ) ; 2 ) u n a c a n t i d a d p a r a q u e e l t r a n s p o r t i s t a e l i m i n e l a b a s u r a e n e l v e r t e d e r o ( c o b r o d e v e r t e d e r o ) ; y 3 ) u n a c a n t i d a d p a r a r e c i c l a r . E l c o s t o t o t a l d e l a f a c t u r a d e b a s u r a d e c a d a u n i d a d r e s i d e n c i a l e s t á d e t e r m i n a d o p o r l a c a n t i d a d d e c o n t e n e d o r e s d e b a s u r a .
S e a g r e g a r á u n a j u s t e d e c o s t o a l o s c o m p o n e n t e s d e l a t a r i f a d e s e r v i c i o , r e c i c l a j e y v e r t e d e r o d e b i d o a l o s c r e c i e n t e s c o s t o s d e S e a g r e g a r á u n a j u s t e d e c o s t o a l o s c o m p o n e n t e s d e l a t a r i f a d e s e r v i c i o , r e c i c l a j e y v e r t e d e r o d e b i d o a l o s c r e c i e n t e s c o s t o s d e r e c o l e c c i ó n d e b a s u r a , s e r v i c i o s d e r e c i c l a j e , d i s p o s i c i ó n e n v e r t e d e r o s , c o m b u s t i b l e , s a l a r i o s y o t r o s c o s t o s r e l a c i o n a d o s c o n e l p e r - s o n a l . L o s a u m e n t o s s o n l o s s i g u i e n t e s :
A d e m á s , s i n r e a l i z a r o t r a a u d i e n c i a p ú b l i c a y n o t i f i c a d a , a n u a l m e n t e c a d a 1 d e j u l i o , a p a r t i r d e l 1 d e j u l i o d e 2 0 2 5 y h a s t a e l 1 d e j u l i o d e 2 0 2 6 , l a C i u d a d p r o p o n e a u m e n t a r l a s t a r i f a s d e l a s i g u i e n t e m a n e r a :
S e p u e d e o b t e n e r i n f o r m a c i ó n a d i c i o n a l y m á s r e l a c i o n a d a c o n e s t e a s u n t o , i n c l u i d o e l p r o g r a m a d e t a r i f a s d e b a s u r a , d e l D e p a r t a m e n t o d e P u b l i c Wo r k s , 6 6 5 0 B e a c h B o u l e v a r d , B u e n a P a r k , C a l i f o r n i a , 9 0 6 2 2 .
C O B R O A C T U A L
현 수거비
C O B R O N U E V O A P A R T I R
D E L 1 D E J U L I O D E 2 0 2 5
2 0 2 5년 7 월 1 일
부터 새로운 요금
T a s a b á s i c a ( p o r m e s )
C o n t e n e d o r c o n r u e d a s a d i c i o n a l ( p o r m e s ) C o n t e n e d o r t e m p o r a l d e 3 y a r d a s c ú b i c a s ( p o r u s o ) 기본 금액 (월 )
추가 바퀴 달린 컨테이너 (월 )
3 입방 ( C u b i c Y a r d ) 임시 컨테이너 (이용 횟수 )
a . e l c o m p o n e n t e d e s e r v i c i o d e l a t a r i f a b á s i c a ( $ 1 4 . 6 8 a p a r t i r d e l 7 / 1 / 2 5 ) , e l c o n t e n e d o r c o n r u e d a s a d i c i o n a l ( $ 5 . 3 6 a p a r t i r d e l 7 / 1 / 2 5 ) , y e l c o n - t e n e d o r t e m p o r a l d e 3 y a r d a s c ú b i c a s ( $ 8 3 . 5 4 d e s d e 7 / 1 / 2 5 ) p u e d e s e r i n c r e m e n t a d o p r o e l p o r c e n t a j e a n u a l d e i n c r e m e n t o e n e l Í n d i c e d e P r e c i o s a l C o n s u m i d o r d e L o s Á n g e l e s - R i v e r s i d e - C o n d a d o d e O r a n g e C A p a r a t o d o s l o s c o n s u m i d o r e s u r b a n o s e n t r e l o s d o s s e p t i e m b r e s a n t e r i o r e s ; y b . e l c o m p o n e n t e d e r e c i c l a j e a l a t a r i f a b á s i c a ( $ 5 . 4 3 d e s d e 7 / 1 / 2 5 ) p u e d e i n c r e m e n t a r s e p o r e l a u m e n t o p o r c e n t u a l a n u a l e n e l í n d i c e d e p r e c i o s a l c o n s u m i d o r d e d e L o s Á n g e l e s - R i v e r s i d e - C o n d a d o d e O r a n g e C A p a r a t o d o s l o s c o n s u m i d o r e s u r b a n o s e n t r e l o s d o s a g o s t o s a n t e r i o r e s . N o h a y c o b r o s d e r e c i c l a r p a r a e l c o n t e n e d o r t e m p o r a l d e 3 y a r d a s c ú b i c a s . c . e l c o m p o n e n t e d e l a t a r i f a d e v e r t e d e r o ( $ 6 . 0 0 d e s d e 7 / 1 / 2 5 ) y e l c o n t e n e d o r d e 3 y a r d a s c ú b i c a s ( $ 4 8 . 1 5 d e s d e 7 / 1 / 2 5 ) p u e d e n i n c r e m e n t a r p o r c . e l c o m p o n e n t e d e l a t a r i f a d e v e r t e d e r o ( $ 6 . 0 0 d e s d e 7 / 1 / 2 5 ) y e l c o n t e n e d o r d e 3 y a r d a s c ú b i c a s ( $ 4 8 . 1 5 d e s d e 7 / 1 / 2 5 ) p u e d e n i n c r e m e n t a r p o r e l a u m e n t o p o r c e n t u a l a n u a l e n t o d o s l o s c o n s u m i d o r e s u r b a n o s , p r o m e d i o d e l a c i u d a d d e E E . U U . , t o d o s l o s a r t í c u l o s , s i n a j u s t e e s t a c i o n a l , I D d e s e r i e C U U R 0 0 0 0 S A 0 e n t r e l o s d o s m e s e s d e o c t u b r e a n t e r i o r e s . a . 서비스 요소 중 기본 요금에 해당되는 금액 ( 7월 1일 2 0 2 5년 기준 $ 1 4 . 6 8 ) , 추가 바퀴 달린 컨테이너에 해당되는 금액 ( 7월 1일 2 0 2 5년 기준 $ 5 . 3 6 ) 및 3 입방 ( C u b i c Y a r d ) 임시 컨테이너에 해당되는 금액 ( 7월 1일 2 0 2 5년 기준 $ 8 3 . 5 4 )은 지난 두 해의 9월 사이에 모든 도시 소비자의 로스앤젤레스 -리버사이드 -오렌지 카운티 캘리포니아 소비자 물가 지수의 연간 백분율 증가에 따라 인상될 수 있습니다 . b . 재활용 요금 요소 중 기본 요금에 해당되는 금액 ( 7월 1일 2 0 2 5년 기준 $ 5 . 4 3 )은 지난 두 해의 8월 사이에 모든 도시 소비자의 로스앤젤레스 -리버사이드 -오렌지 카운티 캘리포니아 소비자 물가 지수의 연간 백분율 증가에 따라 인상될 수 있습니다 . 3 입방 ( C u b i c Y a r d ) 임시 컨테이너에 해당하는 재활용 요금은 없습니다 .
c .
c . 매립료 요소 중 기본 요금애 해당되는 금액 ( 7월 1일 2 0 2 5년 기준 $ 6 . 0 0 )과 3 입방 ( C u b i c Y a r d ) 임시 컨테이너에 해당되는 금액 ( 7월 1일 2 0 2 5년 기준 $ 4 8 . 1 5 )은 모든 도시 소비자의 미국 도시 평균 , 모든 항목 , 계절에 따라 조정되지 않은 , 지난 두 해의 1 0월 사이의 시리즈 I D C U U R 0 0 0 0 S A 0의 백분율 증가에 따라 인상될 수 있습니다 .
C I U D A D D E B U E N A P A R K
A v i s o d e A u m e n t o d e l a T a s a d e B a s u r a s 부에나팍 시 - 폐기물 수거비 인상 안내
$ 2 5 . 0 2 $ 2 6 . 1 1
$ 5 . 0 7 $ 5 . 3 6
$ 1 2 5 . 9 7 $ 1 3 1 . 6 9
$ 2 5 . 0 2 $ 2 6 . 1 1
$ 5 . 0 7 $ 5 . 3 6
$ 1 2 5 . 9 7 $ 1 3 1 . 6 9
City of Buena Park
City Council Regular Meeting Agenda Report
D. AUTHORIZE NORESCO, LLC TO PROCEED TO THE 90% INVESTMENT GRADE AUDIT PHASE, APPROVE A BUDGET APPROPRIATION, AND APPROVE AMENDMENT NO. 3 TO PROFESSIONAL SERVICES AGREEMENT WITH JBA CONSULTING DBA NV5 CONSULTANTS, INC. FOR INVESTMENT GRADE AUDIT AGREEMENT (IGAA)
SUPPORT
Meeting
Tuesday, May 27, 2025, 5:00 PM
Agenda Group
NEW BUSINESS Item: 5D.
Prepared By
Frances Capistrano, Management Analyst
Department Head Approval
Mina Mikhael, Director of Public Works/City Engineer
Presented By
Mina Mikhael, Director of Public Works/City Engineer
RECOMMENDED ACTION
1) Authorize NORESCO, LLC to proceed to the 90% Investment Grade Audit Phase with a cost in the amount of $189,000; 2) Approve Amendment No. 3 to Professional Services Agreement 23-08 with JBA Consulting dba NV5 Consultants, Inc. for Investment Grade Audit Agreement (IGAA) support in the amount of $19,262; 3) Approve a budget allocation of $209,000 from the undesignated General Fund balance to fund the NORESCO, LLC and NV5 agreements; 4) Authorize the City Manager and City Attorney to make any necessary, non-monetary changes to the agreement; and, 5) Authorize the City Manager and City Clerk to execute the agreement.
PREVIOUS CITY COUNCIL ACTION
On March 8, 2022, the City Council reviewed a study session presentation on conducting an Investment Grade Audit (IGA) to identify energy efficiency opportunities at City facilities and directed staff to issue a Request for Qualifications (RFQ) to find qualified energy service companies (ESCOs). In January 2023, the City issued the RFQ, and on March 28, 2023, following a presentation of the RFQ results, the City Council directed staff to negotiate an Energy Services Agreement with NORESCO, LLC to perform the IGA and an implement energy infrastructure modernization projects.
On August 13, 2024, the City Council entered into an agreement with NORESCO, LLC to perform an IGA for city facilities.
The City retained NV5 Consultants, Inc. to provide technical guidance in the negotiation and review of an IGA.
On September 10, 2024, the City Council approved Amendment No. 2 to Professional Services Agreement 23-08 with JBA Consultants for IGA support. This amendment is to proceed with Phase B, which focuses on IGA and Design Oversight.
DISCUSSION
The Energy Conservation and Efficiency Project (ESCO) is a project delivery approach authorized by Government Code 4217 and utilized by public agencies to minimize their carbon footprint while simultaneously reducing energy costs by utilizing sustainable designs and improvements. The City has retained NORESCO, LLC for the Investment Grade Audit (IGA) and preliminary design portion of the project.
The IGA of City facilities, as being performed by NORESCO, LLC, is completed in three intervals. Presently, the 50% IGA Phase has reached its milestone with presentation of the preliminary findings and recommended Energy Conservation Measures (ECMs) for City facilities, as mutually agreed upon with City staff and Owner’s Representative, for City Council review and authorization to proceed into the 90% IGA Phase. 50% IGA (completed)
The 50% IGA Phase preliminary findings and recommended ECMs are based on indicative costs, economics, savings, incentives and funding as evaluated over the course of the phase, in step with facility data collection and City staff input. During this phase, the following sequenced tasks and activities were carried out to support and substantiate preliminary identified Energy Conservation project scenarios that meet the City’s goals:
Collection of facility information and data
Audit and inventory of existing facility systems and equipment Establishing baselines, energy profiles and rate analysis Engineering and financial evaluation of ECMs that meet the City’s financial, energy and maintenance goals Preliminary energy savings developed for each ECM
Preliminary cost estimates for each ECM based on past projects, estimates from subcontractors, and cost metrics.
Life cycle cost analysis including the value of non-energy benefits to determine the optimal set of projects for further design and development in the 90% IGA phase
90% IGA
With the City Council’s approval, NORESCO, LLC will advance the design and development of the ECMs mutually agreed upon by NORESCO, LLC and City, as guided by the 50% Phase preliminary findings and successive collaboration. During the 90% IGA Phase, NORESCO will implement a detailed task and activity list with focus on overall project formation and ECM optimization that will entail:
Detailed Savings Analysis
With adherence to industry best practices and analysis methodologies including valuating other ECM benefits such as Operations & Maintenance (O&M) savings
Current and available federal, state, utility and other entity incentives, rebates and grants will be quantified and confirmed as available and applicable to the project Confirmation of utility cost escalation rates
Detailed ECM and Capital Improvement Costs
Firm fixed-price costs for the design, installation, implementation and commissioning of the proposed ECMs, including breakouts for labor, materials and equipment; Service phase fees including maintenance, measurement and verification, and training fees Project Financing Planning
NORESCO, LLC will work with the City to identify financing plans to pay for the Project, which will be financed through a guaranteed reduction in utility costs, operational costs and the procurement of utility and other incentives. The project is expected to be financed through a separate contract with 3rd partner financier, with the City option to provide capital, if desired Measurements & Verification (M&V), O&M, Commissioning & Training Plans At the close of the 90% IGA Phase, the findings and recommendations will be presented to City staff and Owners Representative, for review and comment. This review period of the IGA 90% Phase will conclude with the City Council’s authorization to proceed with the Final IGA Report, which will include guaranteed savings and a guaranteed maximum price for the ECMs selected. Proceeding from the 50% phase to the 90% IGA phase will trigger an agreed upon fee of $189,000 per the executed agreement between the City and NORESCO, LLC.
Separately, NV5 Consultants Inc. has submitted a proposal requesting additional funding to complete Phase B of the project. While the original timeline projected completion in 2024, progress on the IGA has reached approximately 50%, and the timeline is now expected to extend through summer 2025 due to various developments. In addition, NV5 Consultants Inc. is providing expanded services, including analysis of the Microgrid Incentive Program and continued stakeholder engagement. To support the completion of Phase B, an additional $19,262 is being requested for allocation.
The City Attorney has reviewed the proposed amendment to the professional services agreement.
BUDGET IMPACT
Staff is requesting a total of $209,000 allocated from the undesignated General Fund balance to the Professional Contractual Account (77-170670-6240).
Attachments
Att 1 of 3 - Amendment No. 3 to NV5 Agreement
Att 2 of 3 - EntelliChoice Scenarios
Att 3 of 3 - PSA 24-09 - NORESCO - ESCO Design
PAGE 1 OF 2
AMENDMENT NO. 3 TO
PROFESSIONAL SERVICES AGREEMENT 23-08
WITH J.B.A. CONSULTING ENGINEERS, INC, DBA NV5
This Amendment No. 3 (“Amendment 3”) to Professional Services Agreement (“Amendment”) is dated May 28, 2025 , and entered into between the City of Buena Park, a California municipal corporation (“CITY”) and J.B.A. Consulting Engineers, Inc. dba NV5, a lawful business entity (“CONSULTANT”). CITY and CONSULTANT are at times referred to herein jointly as the “Parties” and individually as a “Party.” WHEREAS, the Parties previously entered into that certain Professional Services Agreement dated May 9, 2023 (the “ Agreement”), pursuant to which CITY contracted with CONSULTANT to provide the “Services” defined in Section 2.0 and Exhibit “A” to the Agreement; WHEREAS, on January 25, 2024, CITY approved a letter amendment to the Agreement modifying the Services to include the “Phase A – Planning & Procurement Oversight” services (“Phase A Services”) that were described in CONSULTANT’s letter proposal dated January 18, 2024 (“Consultant ’s Proposal”), and specifying the compensation to be paid CONSULANT in consideration for the Phase A Services;
WHEREAS, on September 10, 2024, the Parties entered into Amendment No. 2 to the Agreement authorizing CONSULTANT to perform the “Phase B – Investment-Grade Audit & Design (IGA) Oversight” services described in Consultant’s Proposal (“Phase B Services”); and WHEREAS, the Parties now desire to again amend the Agreement to expand the Phase B Services and increase the compensation to paid CONSULTANT therefor, subject to the terms and conditions set forth in this Amendment.
NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. RECITALS. The foregoing recitals are true and correct and incorporated by the Parties as a substantive part of this Amendment.
2. ADDITIONAL SERVICES: In addition to the Phase B Services to be provided by CONSULTANT under Amendment No . 2, CONSULTANT shall provide to CITY those additional services that are specifically described in Exhibit “A” to this Amendment No. 3 (the “ Additional Services”). CONSULTANT shall commence performing the Additional Services upon receipt of a written notice from CITY authorizing CONSULTANT to proceed, and only to the extent of such authorization. CITY may, from time to time, request further changes in the scope of services to be performed by CONSULTANT under the Agreement.
Such changes shall be in the form of a further written amendment to the Agreement signed by both Parties and shall include any additional compensation agreed to by the Parties.
3. ADDITIONAL COMPENSATION: Subject to the maximum compensation amount hereafter provided, the CITY shall compensate CONSULTANT for the Additional Services at the rates set forth in Exhibit “A” to this Amendment No. 3, provided that the maximum total “NOT -TO-EXCEED” compensation that may be paid CONSULTANT under this Amendment No. 3, including reimbursement for expenses, if any, is $19,262.00.
PAGE 2 OF 2
4. INCORPORATION. Except as expressly amended herein this Amendment, all other terms and provisions of the Agreement and previously amended shall govern this Amendment No. 3 and remain in full force and effect, being deemed incorporated fully herein by thi s reference.
PAGE 1 OF 2
CITY OF BUENA PARK CONSULTANT a California Municipal Corporation
Name of Business
BY:
Aaron France, City Manager Signature
Print Name
ATTEST:
BY:
Adria M. Jimenez, MMC, City Clerk
APPROVED AS TO FORM:
BY:
Christopher Cardinale, City Attorney
NV5 Proposal No. P63023-0006680.00
May 15th, 2025
City of Buena Park
Mina Mikhael, PE
Director of Public Works/City Engineer
P: 714.562.3672
[email protected]
6650 Beach Blvd
Buena Park, CA 90621
Subject: Request for Additional Funds for IGA Oversight for the City of Buena Park, CA Dear Mr. Mikhael:
In accordance with our recent discussions, J.B.A. Consulting Engineers, Inc. dba NV5 Consultants, Inc. (NV5) is submitting this proposal to request additional funds on our original proposal dated January 18th, 2024 (“Original Proposal”) and Amendment #2 to our PSA with the City. We are requesting additional funds for various reason, including:
(1) Timeline: The Project timeline was originally estimated to be completed in 2024. Due to various developments in the IGA process, we are currently ~50% complete and this will likely extend through Summer 2025.
(2) Additional Services: NV5 provided subject matter expertise and additional analysis above and beyond the original scope contemplated in the Original Proposal. Most notably, this includes analysis for the Microgrid Incentive Program.
(3) Additional Stakeholder Engagement Activities: During the 50% submission process, we prepared materials and successfully presented to various City stakeholders in a series of unanticipated meetings.
Due to the success of this approach, we expect this process to be repeated for the 90% submission and ultimately, the 100% submission as well.
SUMMARY OF PROPOSED ADDITIONAL FEES
The fees for this work shall be on a Fixed Fee basis. Invoices shall be prepared and submitted monthly based on the level of effort by the NV5 team.
S E R V I C E S F E E S
Additional Funds for IGA Oversight $19,262
Expenses Included
TOTAL $19,262
AUTHORIZATION
All services will be conducted in accordance with this Proposal and Amendment #2 of the PSA. To initiate services, please complete and return the attached “Proposal Acceptance Agreement” form. Our Proposal will remain valid for acceptance for up to 90-days from the date of this Proposal. Upon which, we reserve the right to modify the Proposal, scope, and fees.
We appreciate the opportunity to be of service to you again.
Regards,
EXHIBIT A
NV5 Proposal No. P63023-0006680.00
Aldo Mazzaferro, PE, CEM, CEA
Executive Director of Business Development
NV5 – Clean Energy
516.567.2337
[email protected]
NV5 Proposal No. P63023-0006680.00
NV5 Hourly Rate Schedule
L a b o r C a t e g o r y 2 0 2 5 2 0 2 6
Intern $83 $85
Project Coordinator I $99 $102
Associate Engineer $133 $137
Engineer I $149 $153
Engineer II $168 $173
Engineer III $201 $207
Associate Project Manager $217 $224
Project Manager $240 $247
Senior Project Manager $279 $287
Program Manager $289 $298
Director $300 $309
Executive Director $321 $331
Principal $334 $344
NV5 Proposal No. P63023-0006680.00
PROPOSAL ACCEPTANCE AGREEMENT
Description of Services: Energy Consulting Services
Project Name: City of Buena Park – IGA Oversight
Project Location: Buena Park, CA
Proposal No.: N/A
Proposal Date: May 15th, 2025
APPROVAL & PAYMENT OF CHARGES: Invoices will be charged and mailed to the account of:
Firm:
Attention:
Address:
Email:
Telephone: Fax:
PROPOSAL ACCEPTED BY:
AUTHORIZED SIGNATURE:
NAME & TITLE:
DATE ACCEPTED: _________________________
PAYMENT TERMS: Submitted invoices shall be processed within 30 days of receipt by the Client Please remit payments to: PO Box 74008680, Chicago, IL 60674-8680 PROPERTY OWNER IDENTIFICATION (If other than above)
Name:
Address:
Telephone: Fax:
This Proposal Acceptance Agreement, the scope of services outlined in the proposal, Schedule of Fees, and standard terms and conditions constitute the entire agreement between the Client and NV5 and supersede all prior written or oral understandings.
ALL ECM SELECTION
NV5.COM | Delivering Solutions — Improving Lives
ALL ECM PROJECT COST AND CASHFLOW (w/ $4.5mil City Contribution) Year Lease Payments Service Payments Owner's Rep
Annual Fee
Guaranteed
Savings Net Cashflow
0 $0 $0 $0 $0 ($4,500,000)
1 $23,493 $9,117 $0 $407,661 $375,051
2 $23,939 $9,413 $0 $415,529 $382,176
3 $24,394 $9,719 $0 $423,549 $389,435
4 $24,858 $10,035 $0 $431,723 $396,830
5 $25,330 $10,361 $0 $440,055 $404,364
6 $25,812 $10,698 $0 $448,549 $412,039
7 $26,302 $11,046 $0 $457,206 $419,858
8 $26,801 $11,405 $0 $466,030 $427,824
9 $27,310 $11,775 $0 $475,024 $435,938
10 $27,829 $12,158 $0 $484,192 $444,205
11 $28,357 $12,553 $0 $493,537 $452,627
12 $28,895 $12,961 $0 $503,062 $461,206
13 $29,443 $13,382 $0 $512,771 $469,946
14 $30,001 $13,817 $0 $522,668 $478,849
15 $30,570 $14,266 $0 $532,755 $487,919
16 $31,150 $14,730 $0 $543,037 $497,158
17 $31,740 $15,209 $0 $553,518 $506,569
18 $32,341 $15,703 $0 $564,201 $516,157
19 $32,954 $16,213 $0 $575,090 $525,923
20 $33,578 $16,740 $0 $586,189 $535,871
$565,097 $251,303 $0 $9,836,345 $4,519,945
5 6 7 8 9 10 11 12 13 14 14
OPTION E - All ECMs (excluding Hypochlorite)
Including Solar+Battery w/ City $4.5 mil
Buydown City Hall
Police Department
City Yard
Community Center
Ehlers Event Center
Stage Stop Hotel Tourism
Office
Boisseranc Park
Carl Brenner Park
W
illiam Peak Park
George Bellis Park
1.1 Interior & Exterior LED Lighting
1.2 Non-ECM Lighting Retrofits
2.1 HVAC Replacements
3.1 HVAC Controls
4.1 EV Charging Stations
5.1 Solar PV Installation
5.2 Solar PV + ESS Installation
6.1 Domestic Water
6.2 Other Domestic Water (Kitchens, Classrooms)
6.3 Hypochlorite Generation
6.4 Aquatic Controllers
7.1 Weatherization
7.2 Window Film
7.3 Generator Heat Pump
by
HR HC
SR SC
ALL ECMS & SOLAR + ESS
NV5.COM | Delivering Solutions — Improving Lives
ALL ECMS & SOLAR + ESS PROJECT COST & CASH FLOW (w/ $4.5mil City Contribution) Year Lease Payments Service Payments Owner's Rep
Annual Fee
Guaranteed
Savings Net Cashflow
0 $0 $0 $0 $0 ($4,500,000)
1 $563,758 $31,561 $0 $813,069 $217,749
2 $574,354 $32,587 $0 $828,761 $221,820
3 $585,145 $33,646 $0 $844,756 $225,965
4 $596,134 $34,739 $0 $861,060 $230,186
5 $607,326 $35,868 $0 $877,678 $234,484
6 $618,724 $37,034 $0 $894,618 $238,860
7 $630,331 $38,238 $0 $911,884 $243,315
8 $642,151 $39,480 $0 $929,483 $247,852
9 $654,188 $40,763 $0 $947,422 $252,471
10 $666,446 $42,088 $0 $965,707 $257,173
11 $678,928 $43,456 $0 $984,346 $261,961
12 $691,639 $44,868 $0 $1,003,343 $266,836
13 $704,583 $46,327 $0 $1,022,708 $271,798
14 $717,763 $47,832 $0 $1,042,446 $276,851
15 $731,184 $49,387 $0 $1,062,565 $281,994
16 $744,850 $50,992 $0 $1,083,073 $287,231
17 $758,766 $52,649 $0 $1,103,976 $292,562
18 $772,934 $54,360 $0 $1,125,283 $297,988
19 $787,361 $56,127 $0 $1,147,001 $303,513
20 $802,051 $57,951 $0 $1,169,138 $309,136
$13,528,619 $869,955 $0 $19,618,319 $719,745
5 6 7 8 9 10 11 12 13 14 14
OPTION E - All ECMs (excluding Hypochlorite)
Including Solar+Battery w/ City $4.5 mil
Buydown City Hall
Police Department
City Yard
Community Center
Ehlers Event Center
Stage Stop Hotel Tourism
Office
Boisseranc Park
Carl Brenner Park
W
illiam Peak Park
George Bellis Park
1.1 Interior & Exterior LED Lighting
1.2 Non-ECM Lighting Retrofits
2.1 HVAC Replacements
3.1 HVAC Controls
4.1 EV Charging Stations
5.1 Solar PV Installation
5.2 Solar PV + ESS Installation
6.1 Domestic Water
6.2 Other Domestic Water (Kitchens, Classrooms)
6.3 Hypochlorite Generation
6.4 Aquatic Controllers
7.1 Weatherization
7.2 Window Film
7.3 Generator Heat Pump
by
HR HC
SR SC
ALL ECMS & SOLAR + ESS
NV5.COM | Delivering Solutions — Improving Lives
Year Lease Payments Service Payments Owner's Rep
Annual Fee
Guaranteed
Savings Net Cashflow
0 $0 $0 $0 $0 $0
1 $871,246 $31,561 $0 $813,069 ($89,738)
2 $887,620 $32,587 $0 $828,761 ($91,446)
3 $904,297 $33,646 $0 $844,756 ($93,186)
4 $921,280 $34,739 $0 $861,060 ($94,960)
5 $938,576 $35,868 $0 $877,678 ($96,766)
6 $956,190 $37,034 $0 $894,618 ($98,607)
7 $974,128 $38,238 $0 $911,884 ($100,482)
8 $992,395 $39,480 $0 $929,483 ($102,393)
9 $1,010,998 $40,763 $0 $947,422 ($104,339)
10 $1,029,941 $42,088 $0 $965,707 ($106,322)
11 $1,049,232 $43,456 $0 $984,346 ($108,343)
12 $1,068,876 $44,868 $0 $1,003,343 ($110,401)
13 $1,088,879 $46,327 $0 $1,022,708 ($112,498)
14 $1,109,248 $47,832 $0 $1,042,446 ($114,634)
15 $1,129,989 $49,387 $0 $1,062,565 ($116,811)
16 $1,151,109 $50,992 $0 $1,083,073 ($119,028)
17 $1,172,614 $52,649 $0 $1,103,976 ($121,287)
18 $1,194,511 $54,360 $0 $1,125,283 ($123,588)
19 $1,216,807 $56,127 $0 $1,147,001 ($125,933)
20 $1,239,508 $57,951 $0 $1,169,138 ($128,321)
$20,907,447 $869,955 $0 $19,618,319 ($2,159,084)
ALL ECMS & SOLAR + ESS PROJECT COST & CASH FLOW (w/ $0 City Contribution) Project Turnkey Price: $18,971,710
3rd Party Engineer Review Fee: $0
Customer Contribution: $0
Estimated Utility Rebates: -$7,091,408
Customer's Construction Interest: $923,292
Total Financed Amount $12,803,594
Present Value of Cash Flow: ($1,305,241)
1 CITY OF BUENA PARK
AGREEMENT FOR PROGRESSIVE DESIGN-BUILD SERIVCES
Energy Conservation and Performance Contract
PSA 24-09
This Agreement for Progressive Design -Build Services (“Agreement”) is dated as of August 14, 2024 (“Effective Date”), and is between City of Buena Park, a California charter city (“CITY”), and NORESCO, LLC, a Delaware limited liability company ("NORESCO"). CITY and NORESCO are at times referred to herein jointly as “Parties” and individually as a “Party.”
1. TERM. The term of this Agreeme nt shall commence on the Effective Date and, unless terminated pursuant to Section 16.2 (Termination by CITY for Cause) or Section 16.3 (Termination for Convenience), shall remain in full force and effect until the first of the following to occur: (a) if, after the City Council accepts the Final IGA Report, the Parties amend this Agreement with NORESCO to contract for NORESCO to perform the remaining design, preconstruction, and construction activities (hereinafter the “Construction Wor k”) sufficient to complete and close out an energy conservation and performance improvement project that is described in the Final IGA Report (a “Project”), then the term of th is Agreement shall expire on the date the Project is accepted as complete by CITY; or alternatively, (b) this Agreement shall expire on the date that is 12 months after the date on which CITY accepts the Final IGA Report as complete if the Parties have not amended this Agreement to authorize NORESCO to perform Construction Work for a Project before that date (with such amendment hereinafter referred to as a “Construction Contract”).
2. SERVICES. Subject to the terms and conditions in this Agreement, NORESCO shall provide to CITY those assessment, design, and preconstruction services that are specifically described in Exhibit “A” (the “Scope of Services” or simply the “Services”) in furtherance of CITY exploring the viability of implementation of certain energy and water conservation, energy efficiency, energy generation and related energy capital improvements at specified CITY owned facilities. CITY may request changes to the Services and in such cases the changes and any resulting increase or decrease in the Compensation to be paid NORESCO, or to the Schedule of Performance (defined below), shall be documented in a written amendment to this Agreement.
Increases or decreases in Compensation resulting from any change to the Services shall be based on the rate s specified in the Compensation Schedule set forth in Exhibit A -1 (“Compensation Schedule”), or if not specified in the Compensation Schedule at then-applicable prevailing market rate charged by NORESCO to other public agencies located in the State of California for the same service. If, following NORESCO’s completion of the Services, the Parties amend this Agreement to authorize NORESCO to perform Construction Work, then NORESCO shall perform the Construction Work as described in and pursuant to the terms and conditions of the Construction Contract agreed to by the Parties.
3. SCHEDULE OF PERFORMANCE. NORESCO shall commence providing the Services on the Effective Date and shall continue and complete performance in accordance with the benchmarks and deadlines described in the Scope of Services in Exhibit A . If a deadline is not established for a specific action or task that is needed to complete the Services, performance by NORESCO shall be completed in a timely and diligent manner reasonably acceptable to CITY.
4. COMPENSATION. As full and complete compensation for NORESCO’s provision of the Services, including any reimbursable expenses if any, CITY shall pay NORESCO an amount determined as follows (“Compensation”):
2 4.1 If CITY, at any time prior to authorizing NORESCO to proceed with the 90% IGA Phase, terminates this Agreement pursuant to Section 16.2 or Section 16.3, then no compensation, payment, reimbursement, penalty, or consideration of any kind shall be due or payable by CITY; and if NORESCO, at any time prior to CITY authorizing NORESCO to proceed with the 90% IGA Phase, terminates this Agreement pursuant to Section 16.3, then no compensation, payment, reimbursement, pe nalty, or consideration of any kind shall be due or payable by CITY.
4.2 If CITY, at any time after authorizing NORESCO to proceed with the 90% IGA Phase as described in the Scope of Services in Exhibit A , terminates this Agreement pursuant to Sections 16.2 or 16.3, then CITY shall pay NORESCO for the reasonable value of design and predevelopment Services, but not the assessment portion of the Services, rendered prior to the effective date of termination based on the hourly rates set forth in the Compensation Schedule ; provided that the total maximum Compensation paid NORESCO in this event shall NOT EXCEED the sum of $189,000.00.
4.3 If CITY, following NORESCO’s submission and CITY’s acceptance of the Final IGA Report, in is sole and absolute discretion, amends this Agreement with NORESCO to authorize it to perform Construction Work for a Project that is described in the Final IGA Report, then CITY shall pay NORESCO for the design and predevelopment portion of the Services provided in completing the Final IGA Report, but not the assessment portion of the Services, based on the hourly rates set forth in the Compensation Schedule ; provided that the total maximum Compensation paid NORESCO in this event shall NOT EXCEED the sum of $189,000.00.
4.4 If CITY, following NORESCO’s submission and CITY’s acceptance of the Final IGA Report, does not , within a reasonable period of time not to exceed 12 months, amend this Agreement to authorize NORESCO to complete Construction Work for any portion of a Project that is described in the Final IGA Report, then CITY shall pay NORESCO for the design and predevelopment portion of the Services provided in completing the Final IGA Report, but not the assessment portion of the Services, based on the hourly rates set forth in the Compensation Schedule; provided that the total maximum Compensation paid NOR ESCO in this event shall NOT EXCEED the sum of $189,000.00.
4.5 If CITY, following NORESCO’s submission and CITY’s acceptance of the Final IGA Report, formally solicits proposals from other design -build entities and affirmatively awards a Construction C ontract to a third -party contractor other than NORESCO for a Project that is described in the Final IGA Report, then CITY shall pay NORESCO for all Services provided in completing in the Final IGA Report based on the hourly rates set forth in the Compensation Schedule; provided that the total maximum Compensation paid NOR ESCO in this event shall NOT EXCEED the sum of $450,000.00.
5. INVOICES AND PAYMENT.
5.1 Tracking Invoices. Each month, NORESCO shall submit invoices to CITY for the Services performed and any authorized reimbursable expenses incurred during the immediately preceding calendar month (“Tracking Invoices”). The Tracking Invoices shall describe in detail the Services rendered during each day of the period, and shall show the days worked, personnel performing the Services, number of hours worked, the hourly rates charged, milestone achievements, and, if applicable, reimbursable expenses incurred. NORESCO shall remit the Tracking Invoices to CITY Representative, and CITY shall review all Tracking Invoices and notify NORESCO in writing within ten (10) business days o f any disputed amounts. The Parties shall
3 keep and maintain copies of the Tracking Invoices to evidence any Compensation that may become due and payable NORESCO under the terms of this Agreement.
5.2 Final Invoices. Within 30 days of Compensation becoming due and payable by CITY to NORESCO under the provisions of Section 4.2 through Section 4.5, inclusive, NORESCO may shall submit a final invoice to CITY Representative for the Services or reimbursable expenses for which NORESCO demands payment (“Final Invoice”). The Final Invoice shall: state whether payment is being requested under Section 4.2, 4.3, 4.4, or 4.5; state the total amount claimed by NORESCO as due and payable ; and include the relevant Tracking Invoices as attachments to support the total compensation requested.
5.3 Payment. CITY shall pay all undisputed portions of Final Invoices within thirty (30) calendar days after receipt, up to the maximum Compensation amount set forth in Section 4 of this Agreement. Notwithstanding the foregoing, if a Final Invoice seeks payment under Section
4.3, NORESCO shall advance and charge the undisputed Final Invoice to the Project, which shall be paid by CITY at the same time and from the same sources as costs for Construction Services relating to the Project . CITY shall not withhold federal or state payroll or other taxes, or make deductions, from payments made to NORESCO.
6. STANDARD OF SKILL. NORESCO shall perform all Services in the manner and according to the standards currently observed by a competent practitioner of NORESCO’s profession in California , and shall at all times, meet or exceed any applicable professional standards of care, workmanship, or conduct . All products of whatsoever nature that NORESCO delivers to CITY pursuant to this Agreement shall be prepared in a professional manner and conform to the standards of quality normally observed by a person currently practicing in NORESCO’s profession. The acceptance of the Services by CITY shall not operate as a release of NORESCO from such standards of care, workmanship, or conduct. NORESCO warrants that any design and engineering services provided under this Agreement shall comply with good engineering practices.
7. INDEPENDENT CONTRACTOR. NORESCO is and shall at all times remain as to CITY a wholly independent contractor. Neither CITY nor any of its agents shall have control over the conduct of NORESCO or any of NORESCO's employees or agents, except as herein set forth.
NORESCO shall not at any time or in any manner represent that it or any of its agents or employees are in any manner agents or employees of CITY. NORESCO shall have no power to incur any debt, obligation, or liability on behalf of CITY or otherwise act on behalf of CITY as an agent.
7.1 NORESCO shall not have the status of an employee of CITY under this Agreement, or be entitled to participate in any insurance, medical care, vacation, sick leave or other benefits provided for CITY's officers or employees.
7.2 In the event that NORESCO, or any of its employees, agents, or subcontractors providing Services under this Agreement, claims or is determined by a court of competent jurisdiction or the California Public Employees Retirement System (“ PERS”) to be eligible for enrollment in PERS as an employee of CITY, NORESCO shall indemnify, defend, and hold CITY harmless for the payment of any employee and/or employer contributions for PERS benefits on behalf of NORESCO or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of CITY.
4 7.3 NORESCO represents that it has, or will secure at its own expense, all personnel required to perform the Services under this Agreement. All of the Services shall be performed by NORESCO or under its direct supervision, and all personnel engaged in the work shall be qualified to perform it. NORESCO reserves the right to determine the assignment of its own employees to the performance of the Services under this Agreement, but CITY reserves the right, for good cause, to require NORESCO to exclude any employee from performing Services on CITY's premises.
8. ADMINISTRATION.
8.1 CITY’s Representative. CITY Representative shall be the Director of Public Works, who has the authority to administer this Agreement and oversee NORESCO’s performance of the Services, provided that an individual’s authority to amend this Agreement shall be governed by applicable provisions of the Buena P ark Municipal Code. All activities performed by NORESCO shall be coordinated through CITY Representative. CITY may change the identity of CITY Representative upon written notice to NORESCO.
8.2 NORESCO’s Representative. NORESCO’s Representative shall be designated by NORESCO in writing , who shall have the authority to administer this Agreement on behalf of NORESCO and to act, bind, and approve all matters relating to this Agreement on behalf of NORESCO. NORESCO’s Representative shall not be replaced witho ut the advance consent of CITY, which consent shall not be unreasonably withheld.
8.3 Third Party Representative. CITY may, at its sole cost and expense, retain an independent third -party representative (“Third -Party Representative”) to provide an independent review and recommendations to CITY in connection with the Project and NORESCO’s performance of the Services. At the sole discretion of CITY, the costs incurred for the Third-Party Representative shall be included as a Project cost in the Project cash flow model and will be paid for by CITY from Project funding sources.
9. SAFETY REQUIREMENTS. All work performed under this Agreement shall be performed in such a manner as to provide safety to the public and to meet or exceed the safety standards outlined by CAL OSHA. CITY may issue restraint or cease and desist orders to NORESCO when unsafe or harmful acts are observed or reported relative to the performance of the Services.
NORESCO shall maintain the work sites free of hazards to persons and property resulting from its operations. NORESCO shall immediately report to CITY any hazardous condition noted by NORESCO.
10. INDEMNIFICATION AND HOLD HARMLESS.
10.1 Indemnification for Design Services. Consistent with California Civil Code Section 2782.8, to the extent the Services are design professional services to be performed by a design professional, as that term is defined under said Section 2782.8, NORESCO shall, to the fullest extent permitted by law, indemnify, protect, defend, and hold CITY, its officers, employees, and agents (“CITY Indemnitees”) harmless for all claims, demands, costs, or liability that arise out of, pertain, or relate to the negligence, recklessness, or willful misconduct of NORESCO, its officers, employees, or agents in said performance of the Services, excepting only liability arising from the sole negligence, active negligence, or intentional misconduct of CITY or CITY Indemnitees.
10.2 Indemnification for Other Services. Other than in the performance of design professional services by a design professional, as covered by Section 10.1 above, to the fullest extent permitted by law NORESCO shall defend, indemnify, and hold harmless CITY and CITY
5 Indemnitees from and against all claims arising out of, pertaining to, or relating to the acts or omissions, negligence, recklessness or willful misconduct of NORESCO, NORESCO’s officers, employees, consultants, or subcontractors in performing or failing to perform any work, services, or functions provided for, referred to, or in any way connected with any work, services, or functions to be performed under this Agreement. Under no circumstances shall NORESCO be liable for claims to the extent such claims are due to the sole negligence or willful misconduct of CITY or CITY Indemnitees. For purposes of this Section 10.2 only, “claims” means any and all claims, demands, actions and suits brought by a party other than CITY for any and all losses, liabilities, costs, expenses, damages and ob ligations, and the defense obligation shall include but not be limited to payment of CITY’s reasonable attorneys’ fees, experts’ fees, and litigation costs incurred in defense of a claim. Notwithstanding the foregoing, to the extent required by California Civil Code section 2782, NORESCO’s indemnity obligation shall not apply to liability for damages for death or bodily injury to persons, injury to property, or any other loss, damage or expense arising from the sole or active negligence or willful misconduct of CITY or CITY Indemnitees.
10.3 Taxes, Assessments, Workers Compensation. NORESCO shall pay all required taxes on amounts paid to NORESCO under this Agreement and indemnify and hold CITY harmless from any and all taxes, assessments, penalties and interest asserted against CITY by reason of the independent contractor relationship created by this Agreement. NORESCO shall fully comply with applicable workers’ compensation laws regarding NORESCO and subcontractors shall indemnify and hold CITY harmless from any failure of NORESCO to comply with applicable workers’ compensation laws.
10.4 Obligations Not Limited by Insurance . The obligations and covenants of NORESCO in this Section 10 are independent and separate from any requirement or covenant to carry insurance. The obligations of NORESCO under this Section 10 shall not be limited by the limits of any policies of insurance by this Agreement or otherwise maintained by NORESCO, nor shall NORESCO’s obligations by limited by the provisions of any workers’ compensation act or similar act. NORESCO expressly waives any statutory immunity under such statutes or laws as to CITY or CITY Indemnitees.
10.5 Survival; Enforcement. NORESCO’s obligations and covenants under this Section shall survive the expiration or termination of this Agreement and shall continue in full force and effect for a time at least equal to the statute of limitations that is applicable to the underlying Claim, demand, cost or liability. NORESCO’s failure to promptly pay CITY any obligation for reimbursement or indemnification arising under this Section 10 shall be a material breach of NORESCO’s obligations to CITY under this Agreement.
11. INSURANCE. At all tim es during the term of this Agreement NORESCO shall maintain insurance coverage in the types, and amounts that are set forth in this Section 11, and upon CITY’s request NORESCO shall provide evidence of such coverage to the satisfaction of CITY’s Director o f Risk Management, which may include copies of endorsements signed by an authorized representative of the underwriting company, or certificates of insurance.
11.1 Scope of Insurance. NORESCO shall maintain policies with coverage at least as broad as:
.1 Commercial General Liability insurance which shall include insurance for "bodily injury," "property damage" and "personal and advertising injury" with coverage for premises and operations, products and completed operations, and contractual liability.
6 .2 Business Automobile insurance which shall include coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1-Any Auto).
.3 Workers' Compensation insurance as required by the California Labor Code and Employer's Liability Insurance.
.4 Professional Liability insurance appropriate to NORESCO’s profession. If such insurance policy is written on a claims-made form, the retroactive date must be shown and must be before the effective date of the Agreement or the commencement of Services by NORESCO.
11.2 Limits of Insurance . NORESCO shall maintain insurance coverage limits as set forth below:
.1 Commercial General Liability: $2,000,000 per occurrence for bodily injury, personal injury, and property damage. If a general aggregate limit is used, either the general aggregate limit shall apply separately to the Project or the general aggregate limit s hall be $4,000,000 and contain specific language creating a duty to defend against any suit seeking damages which arise out of, pertain to, or relate to NORESCO’s obligations under this Agreement.
.2 Automobile Liability: $1,000,000 per accident for bodily injury and property damage.
.3 Employer's Liability: $1,000,000 per accident for bodily injury or disease.
.4 Professional liability: $2,000,000 per claim, with an extended reporting period of not less than two years.
11.3 Umbrella or Excess Insurance. In the event NORESCO purchases an umbrella or excess insurance policy(ies) to meet the “Limits of Insurance," this insurance policy(ies) shall afford no less coverage than the primary insurance policy(ies) required by this Section 11.
11.4 Deductibles and Self -insured Retentions . NORESCO shall be responsible for payment of any deductibles contained in any insurance policy(ies) required hereunder and NORESCO shall also be responsible for payment of any self-insured retentions.
11.5 Required Endorsements. Each insurance policy shall be endorsed as follows:
.1 Except with respect to Workers Compensation or Professional Liability/E&O policies required by this Section 11, CITY and CITY Indemnitees shall be named as additional insureds (collectively “Additional Insureds”). Additional Insured endorsements shall not:
(a) be limited to “Ongoing Operations””; (b) exclude “Contractual Operations” (c) restrict coverage to the “Sole” liability of NORESCO; or (d) contain any other exclusion contrary to this Agreement.
.2 For any claims related to NORESCO’s obligations under this Agreement, NORESCO's insurance coverage shall be primary to any other similar insurance carried by Additional Insureds. Any insurance or self-insurance maintained by Additional Insureds shall be in excess of NORESCO's insurance and shall not be called upon to contribute with it.
.3 All insurance coverage shall contain a provision that provides thirty (30) calendar days' prior written notice from insurer to CITY for cancellation, modification, or lapse .
7 The notice shall be provided via certified mail, return receipt requested. NORESCO shall require its insurer to modify the applicable policy and all certificates of insurance to delete the word "endeavor" with regard to any notice provisions.
.4 Each policy shall be endorsed to state that the insurer waives the right of subrogation against CITY and CITY Additional Insureds.
11.6 Duration of Insurance. The requirements of this Section 11 shall survive expiration or termination of the Agreement. Insurance must be maintained, and evidence of insurance must be provided for at least 2 years after any expiration or termination of the Agreement or, in the alternative, the policy shall be endorsed to provide not less than a 2-year discovery period.
11.7 Acceptability of Insurers. All insurance coverage required by this Agreement shall be written by insurers authorized to conduct business in the State of California by the Department of Insurance and rated “A:VIII” or above in the most recent A.M. Best's Insurance Rating Guide.
11.8 Verification of Coverage . NORESCO shall furnish CITY with evidence of the insurance required by this Agreement to the satisfactory to CITY. Such evidence shall consist of original certificates of insurance and amendatory endorsements, including an add itional insured endorsement. The endorsements shall conform to CITY's requirements. NORESCO shall file all certificates of insurance and fully executed endorsements with CITY before commencing performance of the Services. Where and at the times applicable, NORESCO shall also provide proof that the policies of insurance required under this Agreement and expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. NORESCO shall furnish such proof to CITY prior to the expiration of the original policies. CITY may require blanket policy endorsements affecting the coverage required by these specifications in the event of a Claim.
11.9 Other Insurance Provisions.
.1 All insurance coverage and limits required in this Agreement shall apply to the full extent of the policies involved, available or applicable. Nothing contained in this Agreement or any other agreement relating to CITY or its operations limits the applicat ion of the insurance coverage.
.2 All insurance coverage shall cover NORESCO’s operations pursuant to the terms of this Agreement.
.3 Any actual or alleged failure on the part of CITY or CITY’s Additional Insureds under these requirements to obtain proof of insurance required under this Agreement in no way waives any right or remedy of CITY or any additional insured, in this or any other regard.
.4 NORESCO shall provide immediate notice to CITY of any claim or loss against NORESCO that includes CITY or any of the CITY’s Additional Insureds as a defendant.
CITY assumes no obligation or liability from the notice. CITY shall have the right, but not the duty, to monitor the handling of the claim or claims if they are likely to involve CITY.
11.10 Subcontractors. NORESCO shall require subcontractors or any other party involved in the Services by NORESCO to carry the same insurance as required in this Section
11. NORESCO shall obtain certificates evidencing the coverage and make reasonable efforts to ensure that the coverage is provided as required in this Section. NORESCO shall require that no
8 contract used by any subcontractor, or contract NORESCO enters into on behalf of CITY, shall reserve the right to charge back to CITY the cost of insurance required by this Agreement.
NORESCO shall, upon request, submit to CITY for review, all certificates of insurance obtained in compliance with Section 11.8. CITY’s failure to re quest copies of the documents shall not impose any liability on CITY, or its employees, or be deemed a waiver of any of CITY’s rights.
12. WORK PRODUCT.
12.1 Limits on Applicability. This Section 12 shall be applicable to the Parties unless CITY terminates this Agreement under the circumstances described in Section 4.1 in which case NORESCO shall keep and maintain ownership of all Work Product.
12.2 Deliverables. NORESCO shall, in such time and in such form as CITY may require, furnish reports concerning the status of Services required under this Agreement.
NORESCO shall, upon request by CITY and upon completion or termination of this Agreement, deliver or return to CITY all material furnished to NORESCO by CITY.
12.3 Ownership.
.1 All draft and final reports, documents and other written material, and any and all images, ideas, concepts, designs including website designs, source code, object code, electronic data and files or other media whatsoever, created or developed by NORESCO in the performance of this Agreement (collectively, “ Work Product”) shall be considered to be “works made for hire” for the benefit of CITY. All Work Product and any and all intellectual property rights arising from their creation, including all copyrights and other proprietary rights, shall be and remain the property of CITY without restriction or limitation upon their use, duplication or dissemination by CITY upon final payment being made. NORESCO shall not obtain or attempt to obta in copyright protection as to any of the Work Product.
.2 NORESCO hereby assigns to CITY all rights of ownership to the Work Product, including any and all related intellectual property and proprietary rights that are not otherwise vested in CITY pursuant to subsection .1 above.
.3 NORESCO warrants and represents that it has secured all necessary licenses, consents or approvals necessary to the production of the Work Product, and that upon final payment, CITY shall have full legal title to the Work Product, and full legal authority and the right to use and reproduce the Work Product for any purpose. NORESCO shall defend, indemnify and hold CITY and CITY Indemnitees harmless from any loss, claim or liability in any way related to a claim that CITY’s use of any of the Work Product is violating federal, state or local laws, or any contractual provisions, or any rights or laws relating to trade names, licenses, franchises, copyrights, patents or other means of prot ecting intellectual property rights or interests in products, ideas or inventions. NORESCO shall bear all costs arising from the use of patented, copyrighted, trade secret or trademarked documents, materials, equipment, devices or processes in connection with its provision of the Work Product produced under this Agreement. In the event any the use of any of the Work Product or other deliverables hereunder by CITY is held to constitute an infringement and the use of any of the same is enjoined, NORESCO, at its expense, shall: (a) secure for CITY the right to continue using the Work Product and other deliverables by suspension of any injunction, or by procuring a license or licenses for CITY; or (b) modify the Work Product and other deliverables so that they become non -infringing while remaining in compliance with the requirements of this Agreement. NORESCO’s covenants under this Section
12.3 shall survive the expiration or termination of this Agreement.
9 13. CONFIDENTIALITY. During performance of this Agree ment, NORESCO may gain access to and use CITY information regarding inventions, machinery, products, prices, apparatus, costs, discounts, future plans, business affairs, governmental affairs, processes, trade secrets, technical matters, systems, facilities, CITY lists, product design, copyright, data, and other vital information (hereafter collectively referred to as “CITY Information”) that are valuable, special and unique assets of CITY. NORESCO agrees to protect all CITY Information and treat it as strictly confidential, and further agrees that NORESCO shall not at any time, either directly or indirectly, divulge, disclose or communicate in any manner any CITY Information to any third party without the prior written conse nt of CITY. In addition, NORESCO shall comply with all CITY policies governing the use of CITY network and technology systems. A violation by NORESCO of this Section shall be a material violation of this Agreement and shall justify legal and/or equitable relief.
14. RECORDS. NORESCO shall maintain complete and accurate records with respect to sales, costs, expenses, receipts and other such information relating to the Work, as required by CITY. NORESCO shall maintain adequate records on services provided in sufficient detail to permit an evaluation of the Work. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. At all times during regular business hours, NORESCO shall provide access to such books and records to CITY, and shall give CITY the right to examine and audit such books and records and to make transcripts as necessary, and shall allow inspection of all work, data, documents, proceedings and activities related to this Agreement.
15. ASSIGNMENT AND SUBCONTRACTING. This Agreement is personal to NORESCO and CITY has entered this Agreement in reliance on NORESCO’s skill, competence and experience. NORESCO shall not assign any of its rights or delegate any of its duties under this Agreement, either in whole or in part, without CITY’s prior written consent, by and through CITY Representative. CITY’s consent to an assignment of rights under this Agreement shall not release NORESCO from any of its obligations or alter any of its obligations to be performed under this Agreement. Any attempt at assignment or delegation by NORESCO in violation of this Section shall be void and of no effect and shall entitle CITY to immediately terminate this Agreement for cause. As used in this Section, “assignment” and “delegation” means any sale, gift, pledge, hypothecation, encumbrance or other transfer of all or any portion of the rights, obligations, or liabilities in or arising from this Agreement to any person or entity, whether by operation of law or otherwise, and regardless of the legal form of the transaction in which the attempted transfer occurs. NORESCO may use subcontractors to carry out portions of the Services, but only to the extent disclosed by NORESCO and approved by CITY, and provided that all subcontractors shall be bound by all applicable requirements of this Agreement.
16. SUSPENSION AND TERMINATION.
16.1 Right to Suspend. CITY shall have the right at any time to temporarily suspend NORESCO’s performance hereunder, in whole or in part, by giving a written notice of suspension to NORESCO. If CITY gives such notice of suspension, NORESCO shall immediately suspend its activities under this Agreement as specified in such notice.
16.2 Termination for Cause by CITY. CITY may terminate this Agreement for cause if NORESCO refuses or fails to timely perform any of the provisions of this Agreement with such diligence as will ensure its c ompletion within the time specified herein. CITY shall notify NORESCO in writing of the non -performance, and if not promptly corrected within fifteen (15) days (or commenced with correction and diligently continued with the work if the correction cannot
10 be completed within fifteen (15) days), CITY may terminate NORESCO's right to proceed with this Agreement or such part of the Agreement as to which there has been delay or a failure to properly perform. If CITY terminates this Agreement under this Section 16.2:
.1 NORESCO shall, not later than five days after such notice of termination, deliver to CITY copies of all Work Product or other information prepared pursuant to this Agreement.
.2 CITY shall pay NORESCO the reasonable value of Services rendered by NORESCO prior to termination; provided, however, CITY shall not in any manner be liable for lost profits that might have been made by NORESCO had the Agreement not been terminated or had NORESCO completed the Services required by this Agreement. In this regard, NORESCO shall furnish to CITY such information as in the judgment of CITY is necessary for CITY to determine the reasonable value of the Services render by NORESCO. The foregoing is cumulative and does not affect any right or remedy that CITY may have in law or equity.
16.3 Termination for Convenience. Either Party may terminate this Agreement for convenience prior to CITY issuing NORESCO a notice to proceed for the 90% IGA Phase, as described in Section 4.1, upon fifteen (15) days written notice. Following the issuance of a notice to proceed to NORESCO for the 90% IGA Phase, if CITY terminates this Agreement under this Section 16.3, then CITY shall pay to NORESCO the amounts set forth in Sections 4.1, 4.2, or 4.4, as applicable.
17. Conflicts of Interest. NORESCO shall comply with all applicable federal, state and local conflict of Interest laws, including the Political Reform Act (Cal. Gov. Code § 81000 et seq.), the Levine Act (Cal. Gov. Code § 84308), and California Government Code Section 1090.
NORESCO covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, that would conflict in any manner with the interests of CITY or that would in any way hinder NORESCO’s performance of Services under t his Agreement.
NORESCO further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor, without the written consent of CITY. NORESCO agrees to avoid conflicts of interest or the appearance of any conflicts of interest with the interests of CITY at all times during the performance of this Agreement.
18. NOTICES. All notices and other communication under this Agreement (other than regularly scheduled payments) shall be deemed properly given upon receipt if delivered in person or sent by electronic facsimile with regular mail follow-up or sent by overnight delivery service or sent by registered mail, return receipt requested and postage prepaid, addressed as follows:
To: CITY of Buena Park, CA
CITY of Buena Park
6650 Beach Boulevard,
Buena Park, California 90620
Attention: Aaron France, CITY Manager
To NORESCO:
One Research Drive
Suite 400C
Westborough, MA 01581
Attention: Pablo Hernandez, CFO
11 The individuals referenced above shall be the designated points of contact and representatives of each Party for purposes of this Agreement, and either Party may change the identify of such representative or such address for notices from time to time by written notice to the other Party.
19. REPRESENTATIONS AND WARRANTIES.
19.1 Mutual Representations. Each Party warrants and represents to the other that:
.1 It has all requisite power, authority, licenses, permits, and franchises, corporate or otherwise, or the ability to enter into contracts with appropriately licensed parties, to execute and deliver this Agreement and perform its obligations hereunder;
.2 Its execution, delivery, and performance of this Agreement have been duly authorized by, or are in accordance with, as to NORESCO, its organic instruments and, as to CITY, by all requisite municipal, board, or other action and are not in breach of any appli cable law, code or regulation; this Agreement has been duly executed and delivered by the signatories so authorized, and constitutes each Party's legal, valid and binding obligation;
.3 Its execution, delivery, and performance of this Agreement shall not result in a breach or violation of, or constitute a default under, any agreement, lease or instrument to which it is a party or by which it or its properties may be bound or affected;
.4 It has not received any notice, nor to the best of its knowledge is there pending or threatened any notice of any violation of any applicable laws, ordinances, regulations, rules, decrees, awards, permits or orders which would materially adversely affect its ability to perform hereunder; and
.5 The persons executing this Agreement are fully authorized by law to do so.
19.2 City Representations. In addition to the representations in Section 19.1, CITY warrants and represents to NORESCO that:
.1 CITY has obtained or shall obtain all necessary governmental, legal, administrative and any other approval necessary for it to enter into this Agreement;
.2 CITY will provide NORESCO with all records in its possession and requested by NORESCO and all information provided shall be, true and accurate in all material respects except as may be disclosed by CITY in writing; and
.3 CITY has not entered into any contracts or agreements for the Facilities with persons or entities other than NORESCO regarding the provision of the Services referenced herein.
19.3. Acknowledgement of Limited Scope . CITY acknowledges and agrees that NORESCO has not acted as a municipal financial advisor to CITY and that CITY has not relied on NORESCO for any matters relating to the fina ncing of the Construction Work, including issuance of any bonds or financing instruments that may be entered into by CITY to pay for the Construction Work.
12 19.4. NORESCO Representations. In addition to the representations in Section 19.1, NORESCO, warrants and represents to CITY that it possesses the skill, experience, qualifications, capacity (financial or otherwise), and/or professional expertise necessary to perform the Work. NORESCO ac knowledges that CITY relies upon the skill of NORESCO, and that of NORESCO’s staff, personnel, contractors or subcontractors, if any, to do and perform the Services in a skillful, competent, and professional manner, and NORESCO and NORESCO’s staff, personnel, contractors or subcontractors (if applicable) shall perform the Services in such manner. NORESCO shall, at all times, meet or exceed any and all applicable professional standards of care or workmanship in performing the Work.
20. MISCELLANEOUS TERMS.
20.1 Publicity. CITY hereby grants to NORESCO and its directors, officers, employees, and affiliates (its “Authorized Representatives”) authorization to include CITY’s name in NORESCO’s client list.
20.2 Protecting Personal Data. NORESCO processes personal data as described in our privacy notices at noresco.com. The Parties will comply with applicable data privacy laws governing personal data processed in connection with this Agreement, including the California Consumer Privacy Act (CCPA), and take all reasonable commercial and legal steps to protect personal data. If CITY provides NORESCO with personal data, CITY will ensure that it has the legal right to do so, including notifying the individuals whose personal data is shared. If a party collects or processes personal data from California residents under this Agreement, such party is a “Service Provider” under the CCPA, and will not sell or exchange such personal data for anything of value.
20.3 Privileged and Proprietary Inform ation. NORESCO's systems, means, cost, and methodologies of evaluating, implementing, accomplishing and determining energy savings and the Scope of Work shall be considered privileged and proprietary information. CITY shall use the same level of effort to protect and safeguard such information as it employs to safeguard its own confidential information. CITY shall not disclose such proprietary information without the express written consent of an officer of NORESCO unless required to do so by statute or regulation. When any request for disclosure of such information is made under any applicable freedom of information law ("FOIL"), CITY will provide prompt verbal and written notice to NORESCO such that NORESCO will have the opportunity to timely object under FOIL should it desire to object to such disclosure of that information in whole or in part. In the event that CITY is required to make a filing with any agency or other governmental body, which includes such information, CITY shall notify NORESCO and coo perate with NORESCO in the event NORESCO seeks confidential treatment of such information included within any such filing or, if all such information cannot be protected from disclosure, to request that CITY be permitted to redact portions of such information, as NORESCO may designate and if permitted by law, from that portion of said filing which is to be made available to the public.
20.4 Exhibits; Precedence. All documents referenced as exhibits in this Agreement are hereby incorporated into this Agreement by this reference. In the event of any inconsistency between the express provisions of this Agreement and any provision of an exhibit, the provisions of this Agreement shall prevail. The following exhibits are attached to this Agreement:
Exhibit A – Scope of Services
Exhibit A-1 – Compensation Schedule
Exhibit A-2 – Guidelines for Measurement & Verification Plan
13 Exhibit A-3 – Minimum Savings Guarantee
20.5 Time of the Essence. Time is of the essence in respect to all major milestones of this Agreement that specify a time for performance.
20.6 Nuisance; Compliance with Laws. NORESCO shall not maintain, commit or permit the maintenance or commission of any nuisance in connection with performing the Services. In performing the Services, NORESCO shall abide by and conform with and to any and all applicable laws of the United States and the State of California, and t he applicable local laws, regulations, and policies of City of Buena Park.
20.7 Permits and Licenses. NORESCO, at its sole expense, shall obtain and maintain during the term of this Agreement all appropriate permits, licenses, and certificates that may b e required in connection with performing the Services. Should NORESCO require assistance and/or coordination with CITY to obtain such permits, CITY shall assist NORESCO to the extent reasonably necessary.
20.8 Covenant against Discrimination. In performing this Agreement, NORESCO shall not engage in, nor shall it permit its agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, physical handicap, medical condition, marital status, sexual gender or sexual orientation, except as permitted pursuant to Section 12940 of the California Government Code.
20.9 Governing Law; Venue. The terms of this Agreement, and any dispute arising from the relationship between the Parties to this Agreement, shall be governed by and construed in accordance with the laws of the State of California, without regard for its conflicts of laws principles, except that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in interpreting this Agreement. The venue for resolving any dispute that arises under or relates to this Agreement (whether contract, tort or both) shall be a court with jurisdiction that is located in the County of Orange, California.
20.10 Cost of Litigation. If any legal action is necessary to enforce any provision of this Agreement or for damages by reason of an alleged breach of any provisions of this Agreement (whether in contract, tort, and/or equity), the prevailing Party shall be entitled to receive from the losing Party all attorneys’ fees, costs and expenses in such amount as the courts may determine to be reasonable.
20.11 Waiver. No delay or omission to exercise any right, power or remedy accruing to CITY under this Agreement shall impair any right, power or remedy of CITY, nor shall it be construed as a waiver of, or consent to, any breach or default. No waiver by CITY of any breach, any failure of a condition, or any right or remedy under this Agree ment shall be: (1) effective unless it is in writing and signed by the Party making the waiver; (2) deemed to be a waiver of, or consent to, any other breach, failure of a condition, or right or remedy; or (3) deemed to constitute a continuing waiver unless the writing expressly so states.
20.12 Efficient Performance. NORESCO shall commence, carry on and complete its assignments with all practicable dispatch, in a sound, economical, and efficient manner in accordance with all applicable laws and generally accepted industry and applicable professional standards.
14 20.13 No Third Party Beneficiaries. This Agreement is made solely for the benefit of the Parties to this Agreement and their respective successors and assigns, and no other person or entity may have or acquire a right by virtue of this Agreement.
20.14 When Rights and Remedies Not Waived. In no event shall the making by CITY of any payment to NORESCO constitute or be construed as a waiver by CITY of any breach of covenant, or any default that may then exist, on the part of NORESCO, and the making of any such payment by CITY while any such breach or default shall exist shall in no way impair or prejudice any right or remedy available to CITY with regard to such breach or default.
20.15 Severability. If any part, term or provision of this Agreement shall be held illegal, unenforceable or in conflict with any law of a federal, state, or local government having jurisdiction over this Agreement, the validity of the remaining portions or provisions shall not be affected by such holding.
20.16 Captions. The titles of the sections, subsections and paragraphs set forth in this Agreement are inserted for convenience and reference only and shall be disregarded in construing or interpreting any of the provisions of this Agreement and the rights or obligations of the Parties to this Agreement.
20.17 Word Usage. Unless the context clearly requires otherwise, (a) the word “shall” is mandatory and “may” is permissive; (b) “or” is not exclusive; and (c) “includes” or “including” are not limiting.
20.18 Integrated Agreement and Modification of Agreement . This Agreement, and all exhibits referred to in this Agreement, constitutes the final, complete and exclusive statement of the terms of the agreement between CITY and NORESCO with respect to the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous oral or written negotiations, representations or agreements of the Parties. No verbal agreement or implied covenant shall be held to vary the provisions of this Agree ment. No Party has been induced to enter into this Agreement by, nor is any Party relying on, any representation or warranty except those expressly set forth in this Agreement. This Agreement may be modified only by a writing signed by both Parties.
20.19 Authority to Bind Parties. Each of the undersigned hereby represents that he or she has the authority to execute this Agreement on behalf of his or her contracting Party.
20.20 Force Majeure. Neither Party shall be deemed in default and performance shall be excused, where delays or defaults are caused unavoidably and beyond the reasonable control of the Party seeking the delay by a “Force Majeure Event”. An extension of time for any such cause shall be for the period of the delay and shall commence to run from the time of the commencement of the cause, if notice by the party claiming such extension is sent to the other party within sixty (60) days of the commencement of the cause. If notice is s ent after such sixty (60) day period, then the extension shall commence to run no sooner than sixty (60) days prior to the giving of such notice. Times of performance under this Agreement may also be extended in writing by the mutual agreement of the Party Representatives. For purposes of this Section 20.20, “Force Majeure” means: Acts of God; unusually severe weather; wars; terrorist acts; fire; floods; earthquakes; casualties; a local, state, or federal declaration of emergency based on an epidemic or pandemic including any quarantine or other health-related orders, directives, regulations, laws or other requirements implemented in response to such epidemic or pandemic; strikes, walkouts lockouts, and other labor difficulties; regional and enduring breakdown in communication facilities,
15 electrical service, or wireless service; failure or inability to secure materials or labor by reason of priority or similar regulations or order of any governmental or regulatory body; or mediation, arbitration, litigation, or other administrative or judicial proceeding involving this Agreement.
In recognition of the obligations stated in this Agreement, the Parties have executed this Agreement on the date indicated above by and through their duly authorized representatives.
CITY OF BUENA PARK
a California municipal corporation
NORESCO, LLC
Signature
Signature
Name: Name:
Title: Title:
*If NORESCO is a corporation, then
pursuant to California Corporations Code
Section 313 this Agreement must be
executed by either: (1) the chairperson of
the board; (2) the president; or (3) the vice
president plus any one of the following: the
secretary, any assistant secretary, the chief
financial officer, or any assistant treasurer.
Signature
Name:
Title:
ATTEST:
BY:
Adria M. Jimenez, CITY Clerk
APPROVED AS TO FORM:
BY:
Christopher Cardinale, CITY Attorney
16 EXHIBIT A
SCOPE OF SERVICES
1. DEFINITIONS. All capitalized terms not defined in this Scope of Services shall have the definition set forth in the body of that certain Agreement for Progressive Desing-Build Services between the Parties dated August __, 2024 (“Agreement”).
2. GENERAL SCOPE . The Services to be provided by NORESCO shall include those comprehensive assessment, preliminary design, and preconstruction services that are described in this Scope of Services (the “Services”) in connection with CITY exploring the feasibility of completing certain energy and water conservation, energy efficiency, energy generation and related energy capital improvements projects at designated CITY-owned facilities.
3. IDENTIFICATION OF FACILITIES. NORESCO shall provide Services for the following “Facilities” owned and operated by CITY:
3.1 City Yard: 6955 Aragon Cir, Buena Park, CA 90620.
3.2 City Hall: 6650 Beach Blvd, Buena Park, CA 90621.
3.3 Police Department: 6640 Beach Blvd, Buena Park, CA 90622.
3.4 Community Center: 6688 Beach Blvd, Buena Park, CA 90621.
3.5 Ehlers Events Center: 8150 Knott Ave, Buena Park, CA 90620.
3.6 William Peak Park: 7225 El Dorado Dr, Buena Park, CA 90620.
3.7 Boisseranc Park: 7520 Dale St, Buena Park, CA 90620.
3.8 Brenner Park: 7401-7413 Ridgeway Dr, Buena Park, CA 90620.
4. PROJECT. NORESCO shall provide Services for the following energy conservation, energy efficiency, energy generation and related energy capital improvements, and water conservation measures (each an “ECM”), at the Facilities as specified:
4.1 Interior and Exterior LED Lighting : Upgrade or replace LED lighting for the interior and exterior of Facilities, with the exception of exterior lighting at the Ehlers Events Center (already complete).
4.2 HVAC Replacements: City Hall, Police Department, William Peak Park, Boisseranc Park, and Brenner Park.
4.3 HVAC Controls: All Facilities.
4.4 EV Charging Stations : City Hall, Police Department, Community Center, Ehlers Events Center, and City Yard. Conduits or charging stations should be planned for fleet charging as well as public interface charging.
4.5 Solar PV Installation: Carport solar PV installations in specified areas of the parking lots at Ehlers Events Center, City Hall, the Community Center, and City Yard, and rooftop solar PV installations at City Hall, Police Departmen t, and City Yard. A timely NEM 2.0 Application to Southern California Edison has been submitted previously on CITY’s behalf and NORESCO shall comply with all requirements necessary to maintain CITY’s grandfathered NEM 2.0 status. Additionally, NORESCO will explore the addition of battery energy storage systems for incorporation into existing building electrical systems and proposed PV systems.
17 4.6 Water Conservation Measures : Water conservation measures at the Facilities and in particular William Peak Park, Boisseranc Park, and Brenner Park.
4.7 Other ECMs: NORESCO may investigate any other energy conservation measures or improvements at the Facilities believed to be cost effective and consistent with the “Project Goals” defined in Section 4.8, such as mechanical pool equipment upgrades at the Park facilities.
4.8 Project Goals. NORESCO will design a Project achiev ing the following goals and objectives:
.1 Project costs will not exceed $20,000,000 and be paid from a guaranteed reduction in utility costs, procurement of utility incentives, tax credits or incentives, and/or energy grants, with estimated savings in ongoing utility costs to include assumptions for ongoing maintenance, repairs, and replacement costs over the term of the financing.
.2 Reduce existing energy consumption and peak energy demands at the Facilities.
.3 Reduce existing maintenance and other operational costs of the Facilities.
.4 Upgrade, retrofit, or replace obsolete and/o r inefficient systems existing at the Facilities.
.5 Maintain a safe and consistent environment at Facilities that offer s reasonable levels of comfort to occupants.
.6 Ensure functionality and compatibility of Project features with existing equipment at Facilities.
.7 Utilize technology to achieve optimum system performance and cost savings at Facilities.
.8 Minimizes financial and technical risks of the Project and Facilities to CITY.
5. ASSESSEMENT, DESIGN, AND PRECONSTRUCTION SERVICES
5.1 General Scope. NORESCO shall perform an Investment Grade Audit (“IGA”) that includes the following information and activities, the results of which will be presented to CITY in the Final Investment Grade Audit Report (“Final IGA Report”) described in Article 5.3.2 of this Scope of Work:
.1 An on-site survey of each Facility and all potential ECMs to be installed at each.
.2 A summary of the historical energy and water use of each Facility. Energy or water use anomalies or high costs per square foot will be evaluated and recommendations will be made.
.3 A thorough description of each recommended ECMs for each Facility, including the following for each ECM: (a) a clear description of the current circumstances and practices; (b) estimates of design and installation costs; (c) efficiency or performance levels and equipment characteristics; d estimates of annual maintenance and replacement costs; (e) estimates of annual energy and cost savings accounting for interaction between different ECMs, and; (f) the useful life of the ECM and any related disposal or extraordinary decommissioning or replacement costs.
.4 A thorough description for how each ECM will be developed, designed, and implemented in a manner that does not compromise space conditions of the Facilities, including for each ECM: (a) how the ECM will modify existing building systems ; (b) the ECM’s compatibility with existing systems; (c) proper operation & maintenance procedures required to maximize the ECM’s savings potential;
18 and (d) additional or modified Facility operation requirements, if any, necessitated by implementing the ECM. Federal, state, and local laws, regulations and standards will be consulted and incorporated into the design and target levels, and evidence of compliance with appl icable laws, regulations and standards will be provided where appropriate.
.5 The Final IGA Report delivered to CITY within 180 calendar days of the date of the Agreement’s Effective Date.
5.2 Detailed Scope: NORESCO shall follow the detailed task list for completing the Final IGA Report, except as an alternative process is otherwise expressly approved in writing and in the sole and absolute discretion of CITY.
.1 Detailed Task List. The IGA will be completed in intervals with review milestones at the “50% IGA Phase,” “90% IGA Phase,” and “Final IGA Report” levels of completion each as described in more detial below.
(a) 50% IGA Phase – Preliminary Review of Facilities and ECMs.
i. Collect General Facility Information . NORESCO shall coordinate all Facility visits and work with CITY Representative in advance so as to not interfere with normal CITY operations. NORESCO shall collect data and background information from CITY concerning operation and energy and water use for each Facility , including any changes to operation and energy use anticipated within the next five years. NORESCO will work diligently to verify accuracy of information provided and to confirm or correct as needed. Where informatio n is not readily available from CITY, NORESCO will make a diligent effort to collect such information through inspection s, staff interviews, and utility providers. CITY will work diligently to furnish NORESCO, upon request, accurate and complete data and i nformation, as available, about the Facilities. CITY will allow NORESCO reasonable access to CITY staff to ensure understanding of existing systems and opportunities. Without limiting the foregoing, the following information will be provided by CITY to NORESCO, to the extent reasonable feasible , for the 36 -month period immediately preceding the Effective Date, with any estimations and/or assumptions made during IGA to be mutually agreed upon to by the Parties:
a. General Facility Information: building list with square footage and age (including age of major remodels or additions); Construction data for buildings and major additions including building envelope, window specifications/performance and roof/wall assembly; and general use of facility.
b. Utility Information: utility company invoices; most recent energy supply contracts to determine baseline cost analysis.
c. Sub Meter Information : historical thermal and electrical sub meter data, if available.
d. Equipment and Facility Information: equipment descriptions (all major energy consuming or saving equipment); facility descriptions (any structural or building use changes); past changes (record of any improvements or modifications related to energy or operational efficiencies that have been installed during the past three years); future plans (current or future plans regarding building or equipment modifications ; drawings and specifications (drawings, as reasonably available , may include mechanical, plumbing, electrical, building automation a nd temperature controls, structural, architectural, modifications and remodels); original construction submittals and factory data (specifications, pump curves, etc., as reasonably available ); floor plans; hazardous materials (inspection, abatement and/or removal records, as applicable).
e. Facility Operation Information : occupancy schedules ; facility usage information; current energy management procedures ; current operational practices ; operating engineer logs, maintenance work orders, etc., as available ; records of maintenance expenditures on energy -using
19 equipment, including service contracts; existing issues with comfort levels, controls or equipment reliability; use data loggers and conduct interviews with facility operation and maintenance staff.
ii. Inventory Existing Systems and Equipment. For each Facility, NORESCO will conduct a physical inspection and compile an inventory of existing systems and equipment related to the proposed ECMs, and address the following considerations:
a. The loads, proper s izing, efficiencies or hours of operation for each system (where measurement costs, facility operating or climatic conditions necessitate, engineering estimates may be used, but for large fluctuating loads with high potential savings, appropriate measurements are required unless waived by CITY).
b. Current operating condition for each system;
c. Remaining useful life of each system;
d. Feasible replacement systems; and
e. Hazardous materials and other environmental concerns.
iii. Establish Baselines:
a. Estimate Baseline Loads
(i) Estimate loads, usage and/or hours of operation for applicable major end uses of total facility consumption including: lighting, heating, cooling, motors (fans and pumps), plug loads, kitchen equipment, and other major energy using equipment.
(ii) Where loading or usage are highly uncertain (including variable loads such as cooling), NORESCO will use its best judgment, use of existing emergency management control system capabilities for trend data, or measurements from data loggers. NORESCO should not assume that equipment run hours equal the operating hours of the building(s) or facility staff estimates.
b. Estimate Baseline Usage
(i) Examine utility supply contracts and utility rate structure applicable to each building.
(ii) If building -specific utility data is not available or useful, provide other means (for example sub meters and/or data loggers) to establish baseline consumption. Establish base year and/or baseline consumption.
(iii) Present base year and/or baseline consumption in terms of energy units (kWh, kW, ccf, Therms, or other units used in bills), in terms of dollars, and in terms of dollars per square foot.
(iv) Describe the process used to determine the base year an d/or baseline consumption and demand (averaging, selecting most representative contiguous 12 months, or sampling; sampling may include temporary sub meters or data loggers where needed).
(v) Consult with facility personnel to account for any anomalous schedule or operating conditions on billings or equipment conditions that could skew the base year and/or baseline representation.
(vi) NORESCO will (as best as possible) account for periods of tim e when equipment was broken or malfunctioning in calculating the base year or baseline definition period.
20 c. Reconcile Estimates : Reconcile annual end -use estimated consumption and demand with the metered data collected during the IGA phase and extrapolated to reflect the annual base year consumption. The purpose of this analysis is to place reasonable “real world” limits on potential savings.
d. Baseline Adjustments: Propose adjustments to the baseline for energy saving measures that will be implemented in the future , provided that b aseline adjustments must be disclosed and may be made only with advance approval by CITY.
iv. Evaluate Proposed ECMs.
a. Interviews: Interview the facility manager and a sampling of maintenance staff, subcontractors and occupants of each building regarding: facility operation, including energy management and operating procedures ; equipment maintenance problems; comfort problems and requirements; equipment reliability ; projected equipment needs ; occupancy and use schedules for the facility and specific equipment ; facility improvements – past, planned and desired ; other project sustainability goals, metrics or standards (i.e. LEED, ENERGY STAR, Net Zero Energy, etc.)
b. Surveys: Survey major energy-using equipment necessary to develop the ECMs listed in Article 4 and any other ECMs deemed cost effective following analysis.
c. Considerations: Consider the following for each ECM:
(i) Comfort and maintenance problems;
(ii) Energy use, loads, proper sizing, efficiencies and hours of operation;
(i) How the measures work together (i.e. lighting upgrades can introduce less heat which requires less space cooling);
(ii) Current operating condition;
(iii) Remaining useful life;
(iv) Feasibility of system replacement and replacement costs;
(v) Future plans for equipment replacement or building renovations;
(vi) Facility operation and maintenance procedures that could be affected; and
(vii) Capability to monitor equipment or system performance and verify savings.
d. List ECMs: Develop a preliminary list of all potential ECMs to be considered for inclusion in the Project. Consider technologies in a comprehensive approach including, but not limited to those measures listed in Article 4 of this Scope of Work.
e. Evaluate ECMs:
(i) Estimate the cost, savings, and life expectancy of each proposed ECM and the aggregate Project. CITY acknowledges that preliminary cost estimates are budgetary and are subject to change pending further, more detailed analysis.
21 (ii) Conduct a preliminary analysis of potential ECMs using life cycle cost analysis and examining the value of non-energy benefits of specific measures.
f. Present 50% IGA Phase Findings: Submit the preliminary findings and list of ECMs to CITY as follows:
(i) Discuss how the Project’s cost, economics, savings, and financials will meet the Project Goals listed in Article 4.8.
(ii) Discuss assessment of energy use, savings potential, and ECM opportunities.
(iii) CITY shall have the option to reject calculations of savings, potential savings allowed, ECM recommendations, or the entire Project, or to request recalculations of savings, potential savings allowed, or related to project recommendations .
(iv) NORESCO and CITY shall work together cooperatively and in good faith to reach an agreement upon a list of recommended ECM’s before proceeding to the 90% Phase.
g. Construction Contract: During preparation of the 50% IGA Report, the Parties shall negotiate in good faith the terms and conditions that will be included in a Construction Contract should CITY exercise discretion to authorize NORESCO to perform Construction Work after completing of the Final IGA Report. The terms and conditions to be included in the Construction Contract shall, in addition to any other terms that may be negotiated by the Parties , be consistent with this Agreement, comply with requirements of California law, and include provisions relating to compliance with the City’s Community Workforce Agreement.
iv. Deadline to Complete 50% IGA Phase . NORESCO will complete the 50% IGA Phase within 90 calendar days of the Effective Date, and thereafter present the associated findings and recommendations to the City Council during a public meeting.
v. City Council Review and Authorization to Proceed with 90% IGA Phase. After reviewing the presentation and findings of the 50% IGA Phase, the City Council will, in its sole and absolute discretion, take one of the following actions: (1) continue the matter to a future date certain for continued discussion, deliberation, and action; (2) authorize NORESCO to proceed with the 90% IGA Phase; or ( 3) decline to pursue the Project and terminate the Agreement pursuant to Section 16.3, in which case no Compensation will be due NORESCO pursuant to Section 4.1.
(b) 90% IGA Phase – Refined Review of Facilities and ECMs : NORESCO will estimate the cost, savings and life expectancy of each of the recommended ECMs mutually agreed upon by NORESCO and CITY.
i. Savings Analysis
a. Follow the methodology of ASHRAE or other nationally -recognized authority following the engineering principle(s) identified for each ECM.
b. Utilize assumptions, projections and baselines which best represent the true value of future energy or operational savings. Include accurate marginal costs for each unit of savings at the time the audit is performed, documentation of material and labor cos t savings, adjustments to the baseline to reflect current conditions at each Facility, calculations which account for the interactive effects of the recommended ECMs.
22 c. Use best judgment regarding the employment of instrumentation and recording durations so as to achieve an accurate and faithful characterization of energy use.
d. Provide analysis methodology, supporting calculations and assumptions used to estimate savings.
e. Manual calculations should disclose essential data, assumptions, formulas, etc. so that a reviewer could replicate the calculations based on the data provided.
f. For savings estimates using computer simulations, NORESCO shall provide program files and all inputs and assumptions used, if requested by CITY.
g. Provide detailed calculations for any utility rate savings proposals.
h. Provide detailed supporting calculations for any proposed maintenance savings.
i. Estimate any environmental costs or benefits of the proposed ECMs (e.g. disposal costs, avoided emissions, water conservation, etc.).
j. Specify facility operations and maintenance procedures which will be affected by the installation/implementation of the proposed ECMs.
k. Establish standards of comfort for each building which will be discussed and agreed to by both Parties and included in the IGA report.
ii. Inflation & Escalation Rates: Any general inflation rates and/or escalation rates and the calculator used to determine those rates will be pre-approved by CITY. Escalation rates shall be justified and at a minimum based on Department of Energy’s Energy Escalation Rate Calculator (EERC).
The EERC can be found at the following website: https://pages.nist.gov/eerc/. CITY may authorize NORESCO to utilize additional resources to further vet escalation values.
iii. Cost Estimates: Provide detailed estimates of costs associated with the design, installation, implementation and commissioning of each ECM proposed in the IGA including breakouts for labor, materials, and equipment. Cost estimates will assume compliance with the terms and conditions of the Construction Contract, and markups and fees of NORESCO must be consistent with the “Compensation Schedule” in Exhibit A-1 (“Compensation Schedule”). Provide estimates of monthly and/or costs associated with sustaining the project performance including breakouts for maintenance fees, measurement and monitoring fees, and training fees.
iv. Financing Plan: Provide a preliminary financing plan to pay for the Project, which will be completely financed through a guaranteed reduction in utility costs, operational costs and the procurement of utility incentives and/or grants. The Project (equipment, installation, maintenance, monitoring, and related costs) are expected to be financed through a separate contract with a third-party financier that will generally incur no initial capital costs, with the option for CITY to provide capital if desired, and achieving significant long -term cost savings. Ongoing cost and savings assumptions shall assume costs for maintenance, repair, and replacement of the Project elements. CITY recognizes the Services expressly exclude municipal financia l advisor services, and CITY expressly reserves the right to independently review, solicit, and obtain financing for the Project.
v. Measurement and Verification Plan : Develop a “Measurement and Verification Plan” that is consistent with the requirements of the “Guidelines for Measurement & Verification Plan” that are set forth in Exhibit “ A-3” for each ECM. NORESCO will use best industry standards for Measurement and Verification Plan development. At a minimum, international performance measurement and verification protocol ( IPMVP) shall be used , and additional standards including F ederal Energy Management Program measurement and verification guidelines should be considered.
23 v. Commissioning Plan: Provide a preliminary commissioning plan for each ECM that outlines the design intent, objectives, organization, schedule, documentation requirements, and testing procedures used to commission each ECM.
vi. Operations and Maintenance Plan: Develop a preliminary operations and maintenance plan for each ECM. The plan should assume that following the construction phase, NORESCO will monitor project savings, including but not limited to providing an energy savings guarantee following the International Performance Measurement and Verification Protocol (IPMVP). Prior to entering into a contract to construct the Project, NORESCO will present recommendations and annual costs in accordance with the IPMVP to measure and verify the guaranteed savings. CITY shall have sole ability to determine the approach to measurement and verification.
vii. Training Plan: Develop a preliminary training plan for the proposed ECMs.
The plan should assume that a s part of the construction close -out of the Projects, NORESCO will provide training to CITY personnel in the operation and maintenance of the equipment installed; operating and maintenance manuals for all equipment installed or provided; and turn over all warranty information to CITY in CITY’s name. At CITY’s sole discretion, it may negotiate on -going service maintenance, repair, or replacement contracts for the Project elements with NORESCO or other qualified vendors.
viii. Deadline to Complete. NORESCO will complete the 90% IGA Phase within 60 calendar days after CITY’s authorization to proceed, and the associated findings and recommendations will be presented to CITY Representative.
ix. City Review and Authorization to Proceed with Final IGA Phase. CITY shall have at least 30 calendar days to review and generate c omments and questions to NORESCO, and when the 90% IGA Phase is complete to the reasonable satisfaction of CITY, CITY Representative will issue written authorization for NORESCO to proceed with the Final IGA Report.
.2 Investment Grade Audit Report : The final Investment Grade Audit Report (“Final IGA Report”) will include the following:
(a) Overview
i. Contact Information
ii. Executive Summary
iii. Description of the Facilities, ECMs considered, and the analysis, methodology, and results.
iv. Summary table presenting the installation cost and savings estimates for each recommended ECM, as well as the Project as a whole.
v. Summary table of recommended ECMs that shows, itemized for each individual ECM and for the total Project, costs for design an d construction, annual maintenance, first -year cost avoidance (in dollars and energy units), simple payback, and equipment service life.
vi. Any cost savings due to changes to utility rates or commodity costs due to changes in metering, commodity procurement, etc.
vii. Summary of annual energy use and costs by fuel type and costs of existing or base year condition.
viii. Calculation of energy and cost savings expected if all recommended ECMs are implemented, and total percentage savings of total facility energy cost for each Facility.
24 ix. Description of the existing Facilities and their mechanical and electrical systems, but limited to the ECMs selected during the 50% IGA Phase.
x. Summary description of the recommended ECMs, including estimated costs and savings for each as detailed above.
xi. Summary of recommended CITY related actions (i.e. internal occupant energy reduction programs or competitions, plug load reduction measures, etc.)
xii. Discussion of ECMs considered but not investigated in detail.
xiii. Summary of Project benefits beyond energy cost savings (i.e. improvement to building environment, greenhouse gas reduction, etc.). Qualitative at a minimum, quantitative would be best.
xiv. Conclusions and recommendations.
(b) Baseline and/or base year energy use
i. Description and itemization of current billing rates, including schedules and riders.
ii. Summary of all utility bills for all fuel types and water.
iii. Identification and definition of base year consumption and description of how established.
iv. Provide detail on baseline adjustments, if any, as approved by CITY.
v. Reconciliation of estimated end use consumption (i.e. lighting, cooling, heating, fans, plug loads, etc.) with base year (include discussion of any unusual findings)
(c) Written Description of Each ECM Selected: To include the following:
i. Existing conditions
ii. Description of equipment to be installed and how it would function.
iii. Detailed descriptions for each ECM including analysis method, supporting calculations (submitted in appendices), results, proposed equipment and implementation issues, including a discussion of facility operations and maintenance procedures that will be affected by installation/implementation.
iv. Plan for installing or implementing the recommendation.
v. Discussion of the conclusions, observations and caveats regarding cost and savings calculations.
(d) Savings calculations
i. Base year energy use and cost
ii. Post-Project energy use and cost
25 iii. Utility rates to be used in savings calculations and guaranteed savings verification reports
iv. Savings calculations including analysis methodology, supporting calculations and assumptions used.
v. Annual savings calculations. The cost savings for all ECMs must be estimated for each year during the contract period. Savings must be able to be achieved each year (cannot report average annual savings over the term of the contract).
vi. Savings calculations must be limited to savings allowed by CITY as described above.
vii. Percent cost-avoidance projected.
viii. Description and calculations for any proposed rate changes.
ix. Explanation of how savings interactions between retrofit options is accounted for in calculations.
x. Operation and maintenance savings, including detailed calculations and description. Ensure that maintenance savings are only applied in the applicable years and only during the lifetime of the particular equipment.
xi. If computer simulation is used, inclu de a short description and state key input data and software used. If requested by CITY, access will be provided to the program and all assumptions and inputs used, and/or printouts shall be provided of all input files and important output files and included in the IGA Report report with documentation that explains how the final savings figures are derived from the simulation program output printouts.
xii. If manual calculations are employed, formulas, assumptions and key data shall be stated.
xiii. Conclusions, observations, caveats
(e) Guaranteed Maximum Price . A narrative of the construction scope of work and open book pricing model that builds up the cost to a total guaranteed maximum price (“GMAX Price” to complete design and construction of the Project in accordance with the terms and conditions of the Design- Build Construction Contract (“Construction Work ”). The GMAX Price shall be the total, not to exceed compensation that will be paid to NORESCO in connection with the Project, including without limita tion: all anticipated costs associated with design, procurement of equipment or materials, installation, and construction of the Project; equipment and installation summaries for major mechanical components; detailed lighting fixture counts; subcontractor and material supplier costs, all markups and fees. The GMAX Price shall include and comply with the following:
i. Allocation of Work. The GMAX Price shall be consistent with the markup structure and format presented in the “Compensation Schedule” in Exhibi t A-1, and shall clearly designate the portion of the Construction Work (including materials or equipment ) that will be self -performed or provided by NORESCO, and those portions that will be completed with the use of subcontractors, suppliers, or other third-party contractors or consultants . All subcontractors , suppliers, or subconsultants shall be
26 designated, together with the scope and cost of the work to be performed by each , on the standard bid forms provided by CITY.
ii. Subcontractors. In awarding construction subcontracts with a value exceeding one -half of 1 percent of the GMAX Price allocable to construction work for the Project, NORESCO shall comply with Public Contracts Code section 22185.6(b) which requires:
(a) Public notice o f availability of work to be subcontracted in accordance with the publication requirements applicable to the competitive bidding process of the local agency, including a fixed date and time on which qualifications statements, bids, or proposals will be due ;
(c) Establishing reasonable qualification criteria and standards; (c) Awarding the subcontract on a best value basis. The process may include prequalification or short-listing;
(d) Subcontractors awarded construction subcontracts must be afforded all the protections of Chapter 4 (commencing with Section 4100) of Part 1 of the California Public Contracts Code; and
(e) A construction subcontractor licensed pursuant to Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Cod e that provides design services used on the Project shall not be subject to any liability arising from their design if the construction subcontract for that design is not performed by that subcontractor.
iii. Open Book Pricing . CITY shall have the right to review all solicitations or request for bids or quotes issued by or to NORESCO, together with all bids or price quotes received from subcontractors or material suppliers, and any other documents or materials in NORESCO’s possession relating to the proce ss outlined in this Article, which shall be considered an “open book pricing & procurement.”
iv. Review of Subcontractors . CITY has the right to request a review and/or replacement of any proposed contractor or materials supplier in certain limited cir cumstances, including in cases of a conflict of interest with CITY, or where CITY has had documented defaults or noncompliance from a particular contractor or supplier, in which case the GMAX Price shall be adjusted to account for the substitute provider.
c. Updated Project-Related Plans. To the extent necessary or appropriate , provide updated versions of each of the following based on the and Project described in the Final IGA Report:
Financing Plan; Commissioning Plan ; Measurement and Verification Plan; Operations and Maintenance Plan; Training Plan.
d. Guaranteed cost savings . NORESCO shall guarantee to CITY that the Project described in the Final IGA Report will result in energy savings in the amount and for the period of time set forth in the Measurement and Verification Plan. In the event the Energy and Cost Savings achieved during any guarantee year are less than the guaranteed energy and cost savings as defined in the written savings guarantee, which shall be substantially in the form set forth in Exhibit A -4 (“Savings Guarantee”), NORESCO shall pay to CITY an amount equal to the shortfall, subject to CITY’s compliance with applicable terms and conditions set forth in the Savings Guaran tee. If applicable, NORESCO shall remit such payments to CITY within forty -five (45) days of CITY’s written notice to NORESCO requesting payment.
NORESCO shall also be obligated to remedy the ECM deficiencies causing the shortfall, to the extent reasonably possible, at no cost to CITY. The exception to this are shortfalls that are caused by CITY non -
27 compliance to practices and standards developed/outlined in the IGA and not followed and Force Majeure Events.
e. Project Timelines and Narrative. Provide a narra tive or statement indicating the duration of the energy performance contract, duration of any financing contracts, timetables for completing engineering and construction work, and a detailed description of services to be provided during remaining design and construction.
f. Other
i. Discussion of circumstances that Facilities will incur after performance contract ends. Consider operation and maintenance impacts, staffing impacts, budget impacts, etc., and identify maintenance responsibilities.
ii. Compatibility with existing energy management control and/or building automation systems.
iii. Complete appendices that document the data used to prepare the analyses. Describe how data were collected.
g. Deadline to Complete Final IGA Report. NORESCO will complete and submit the Final IGA Report within 60 calendar days after City Representative’s written authorization to proceed, and as soon thereafter as the matter may be scheduled NORESCO will present the Final IGA Report to the City Council during a public meeting.
5.3 Good Faith Negotiating Period. The GMAX Price shall be valid for at least 90 calendar days after presentation to CITY Council, during which time CITY and NORESCO shall negotiate exclusively and in good faith in efforts to reach an agreement on the GMAX Price and ECMs to be included in the Project (“Negotiating Period”). At any time during the Negotiating Period, the Parties may amend this Agreement to authorize NORESCO to proceed with completing the remaining turnkey design , preconstruction construction, and implementation activities of a Project for the GMAX Price subject to the terms and conditions in the Construction Contract.
5.4 Options After Negotiating Period . After expiration of the Negotiating Period, the Parties may continue negotiations but the GMAX Price may be increased by NORESCO to pass through actual documented cost increases in the Project, and City, in its sole and absolute discretion, may solicit proposals from other design-build entities and award a contract to a responding entity for the Project on a best value basis. In such event, the design professionals responsible for the Services on behalf of NORESCO shall have sole liability for their design errors and omissions if CITY elects to use their com plete and stamped designs with subsequent design build entities or licensed contractors.
28 EXHIBIT A-1: COMPENSATION SCHEDULE
MAXIMUM
MARKUPS
*To be completed before
execution of Master
Agreement
FINAL PROJECT MARKUPS & TOTAL COSTS
*To be completed with Final IGA
Project Budget Percent of Total
Project Price
Percent of Total
Project Price
Price/Cost
A Subcontractor Costs (Contractor
Costs to ESCO)
N/A
B Other Direct Purchases of
Equipment, Material, Supplies
(Supplier Costs to ESCO)
C Total of Hard Costs N/A c = a + b
D Project Development 8%
E Design/Engineering 8.25%
F Project Management 8.5%
G Permits 2%
H Performance Bond 1%
I Payment Bond/Insurance 1.25%
J Commissioning 1.5%
K Measurement & Verification 1.5%
L Training 2.5%
M Contingency 5%
N Warranty Service 3.5%
o Total of ESCO Fees o = sum(d:n)
p Overhead 14.5%
q Profit 5%
r PROJECT PRICE SUB TOTAL
w/OH &P
r = C + o + p + q
Assumptions for Cost Markup Table Above:
Rows D - N are calculated as a percent of Row C
Row P is calculated as a percent of the sum of Rows C & O Row Q is calculated as a percent of the Sum of Rows C, O, and P.
NORESCO COMPENSATION STRUCTURE
Hourly Rate Table – 2024
Classification Rate / Hour
Proposal Administrator $103
CAD Technician
$110
Construction Coordinator
$103
Associate Engineer, Associate Project Manager
$117
Energy Engineer, Project Manager, Project Developer
$140
Energy Engineer 2, Project Manager 2, Project Developer 2 $157
Commissioning
$173
29 M&V Specialist
$129
Sr. Energy Engineer, Sr. Project Manager, Sr. Project Developer $197 Mgr/Dir Construction, Mgr/Dir Engineering, Mgr/Dir Prj Development $239 Executive time - VP Construction, VP Project Development, Exec VP $295
Annual Fees for Maintenance, Measurement & Verification
First Year Annual Service Fees Maximum Percent of
Annual Savings
*completed prior to signing
Construction Work Order
Final Annual Service Fee
*Determined in the IGA
Measurement & Verification TBD
On-going Training TBD
Operations & Maintenance TBD
30 EXHIBIT A-2
GUIDELINES FOR MEASUREMENT & VERIFICATION PLAN
A. Plan and Report. A Measurement and Verification (“M&V Plan”) will be developed by NORESCO per the most current International Performance Measurement and Verification Protocol (“IPMVP”) guidelines for M&V of annual guaranteed savings. The M&V Plan and Report shall be thoroughly reviewed by CITY and its 3rd Party Representative. Energy-related cost savings shall be measured and/or calculated as specified in the savings M&V Plan. Upon acceptance of the Project as complete by CITY, an annual M&V Report shall be provided to CITY for the previous performance year to provide verification of savings.
The M&V Report shall be submitted within sixty (60) days of the anniversary of the performance period commencement date.
B. Contents of M&V Plan. The M&V Plan shall include the processes, tables and information set forth in this section in substantially the form provided:
1. Index of Processes and Tables:
Risk, Responsibility and Performance Matrix.
M&V Plan and Savings Calculation Methods
Proposed Annual Savings Overview
Site Use and Savings Overview
M&V Plan Summary
Schedule of Verification Reporting Activities
Contractual utility rates to be used to calculate annual cost savings Proposed Annual Savings For ECM
Expected Year 1 Savings for ECM
2. Risk, Responsibility and Performance Matrix. NORESCO shall complete and include the following matrix in the M&V Plan to summarize the allocation of responsibility for key items related to M&V:
RISK, RESPONSIBILITY AND PERFORMANCE MATRIX
RESPONSIBILITY/DESCRIPTION NORESCO PROPOSED APPROACH
1. Financial
a. Interest rates: Neither NORESCO nor CITY has significant control over prevailing interest rates. Higher interest rates will increase project cost, financing/project term, or both. The timing of the TO signing may impact the available interest rate and project cost.
b. Construction costs: NORESCO is responsible for determining construction costs and defining a budget. If construction estimates are significantly greater than originally assumed, NORESCO may find that the project or measure is no longer viable and drop it before TO award. In any design/build contract, CITY loses some design control. Clarify design standards and the design approval process (including changes) and how costs will be reviewed.
c. M&V confidence: CITY shall determine the confidence it requires for the M&V program and energy savings determinations. The desired confidence will be reflected in the resources required for the M&V program, and NORESCO must consider the requirement prior to submission of the final proposal. Clarify how project savings are being verified (e.g., equipment performance, operational factors, energy use) and the impact on M&V costs.
31 d. Energy Related Cost Savings: CITY and NORESCO may agree that the project will include savings from recurring and/or one-time costs. This may include one-time savings from avoided expenditures for projects that were appropriated but will no longer be necessary. Recurring savings generally result from reduced Operations & Maintenance (O&M) expenses or reduced water consumption. These O&M and water savings must be based on actual spending reductions. Clarify sources of non-energy cost savings and how they will be verified.
e. Delays: Failure to implement a viable project in a timely manner costs CITY in the form of lost savings, and can add cost to the project (e.g., construction interest, re-mobilization). Clarify schedule and how delays will be handled.
f. Major changes in facility: CITY controls major changes in facility use, including closure. Clarify responsibilities in the event of a premature facility closure, loss of funding, or other major change.
2. Operational
a. Operating hours: CITY generally has control over operating hours.
Increases and decreases in operating hours can present as increases or decreases in “savings” depending on the M&V method (e.g., operating hours multiplied by improved efficiency of equipment vs. whole building/utility bill analysis). Clarify whether operating hours are to be measured or stipulated and what the impact will be if they change. If the operating hours are stipulated, the baseline should be carefully documented and agreed to by both parties.
b. Load: Equipment loads can change over time. CITY generally has control over hours of operation, conditioned floor area, intensity of use (e.g., changes in occupancy or level of automation). Changes in load can present as increases or decreases in “savings” depending on the M&V method.
Clarify whether equipment loads are to be measured or stipulated and what the impact will be if they change. If the equipment loads are stipulated, the baseline should be carefully documented and agreed to by both parties.
c. Weather or Force Majeure Events: A number of energy efficiency measures are affected by weather, or in extreme causes, a force majeure event like an earthquake or natural disaster. Neither NORESCO nor CITY has control over the weather or force majeure events. Should CITY agree to accept risk for weather fluctuations Clearly specify how weather corrections will be performed.
d. User participation: Many energy conservation measures require user participation to generate savings (e.g., control settings). The savings can vary and NORESCO may be unwilling to invest in these measures. Clarify what degree of user participation is needed and utilize monitoring and training to mitigate risk. If performance is stipulated, document and review assumptions carefully and consider M&V to confirm the capaCITY to save (e.g., confirm that the controls are functioning properly).
3. Performance
a. Equipment performance: NORESCO has control over the selection of equipment and is responsible for its proper installation, commissioning, and ultimate performance. NORESCO has the responsibility to demonstrate that new improvements meet expected performance levels including specified equipment capacity, standards of service, and efficiency. Clarify who is responsible for initial and long-term performance, how it will be verified, and what will be done if performance does not meet expectations.
b. Operations: Performance of the day-to-day operations activities (e.g. turning lights on, occupying the facilities, etc.) is negotiable and can impact performance. Clarify which party will perform equipment operations, the implications of equipment control, how changes in operating procedures will be handled, and how proper operations will be assured.
32 c. Preventive Maintenance: Performance of required maintenance activities including day-day, monthly, and annual activities is negotiable and can impact performance. Clarify how maintenance will be assured, especially if the party responsible for long-term performance is not responsible for maintenance (e.g., contractor provides maintenance checklist and reporting frequency). Clarify who is responsible for performing preventive maintenance to maintain operational performance throughout the contract term. Clarify what will be done if inadequate preventive maintenance impacts performance.
d. Equipment Diagnosis, Repair, and Replacement: Performance of diagnosis, repairs, and replacement of NORESCO-installed equipment is negotiable between the parties. Clarify who is responsible for performing replacement of failed components or equipment replacement throughout the term of the contract. Specifically address potential impacts on performance due to equipment failure. Specify expected equipment life and warranties for all installed equipment. Discuss replacement responsibility when equipment life is shorter than the term of the contract.
3. M&V Plan and Savings Calculation Methods Outline. NORESCO shall fill in the following tables – “Proposed Annual Savings Overview,” “Site Use and Savings Overview,” “M&V Plan Summary,” “Schedule of Verification and Reporting Activities,” “Proposed Annual Sa vings for Each ECM” – or provide equivalent information, with the final agreed upon values being included in the M&V Plan:
PROPOSED YEAR 1 ANNUAL SAVINGS OVERVIEW
[Include all applicable fuels/commodities for project, e.g., electric energy, electric demand, natural gas, fuel oil, coal, water, etc.] ECM
Total
energy
savings
(MBtu/yr)
Electric
energy
savings
(kWh/yr)
Electric
demand
savings
(kW/yr)*
Natural gas
savings
(MBtu/yr)**
Water
savings
(gallons/yr)
Other
energy
savings
(MBtu/yr)*
*
Total
energy and
water cost
savings,
Year 1
($/yr)
Other
energy-
related
O&M cost
savings,
Year 1
($/yr)
Total cost
savings,
Year 1
($/yr)
Total
savings
First Year Guaranteed Cost Savings: $
Notes
*Annual electric demand savings (kW/yr) is the sum of the monthly demand savings.
MBtu=106 Btu.
**If energy is reported in units other than MBtu, provide a conversion factor to MBtu for link to cost schedules (e.g., 0.003413 MBtu/kWh).
SITE USE AND SAVINGS OVERVIEW
Total energy
savings
(MBtu/yr)
Electric
energy
savings
(kWh/yr)
Electric
demand
savings
(kW/yr)*
Natural gas
savings
(MBtu/yr)**
Water savings
(gallons/yr)
Other energy
savings
(MBtu/yr)**
Total proposed project
savings
Usage for entire site**
% Total site usage saved
Project square footage
(KSF)
33 Total site square footage
(KSF)
% Total site area affected
Notes
MBtu=106 Btu
*Annual electric demand savings (kW/yr) is the sum of the monthly demand savings. **If energy is reported in units other than MBtu, provide a conversion factor to MBtu for link to cost schedules (e.g., 0.003413 MBtu/kWh).
***Define usage period.
KSF = 103 square feet.
M&V PLAN SUMMARY
ECM No. ECM Description M&V Option
Used* Summary of M&V Plan
*M&V options include A, B, C, and D of the International Performance Measurement and Verification Protocol (IPMVP).
SCHEDULE OF VERIFICATION REPORTING ACTIVITIES
Item Recommended time of submission
aCITY’s review and
acceptance period
Post-Installation Report 30 to 60 days after acceptance 30 days Annual Report 30 to 60 days after annual performance
period
30 days
aTimes are recommended based on industry practice; modify as needed.
PROPOSED YEAR 1 ANNUAL SAVINGS FOR EACH ECM
[Include all applicable fuels/commodities for project, such as: electric energy, electric demand, natural gas, fuel oil, coal, water, etc.]
Total
energy
use
(MBtu/yr
)
Electric
energy
use
(kWh/yr
)
Electric
energy
cost,
Year 1
($/yr)
Electric
demand*
(kW/yr)
Electric
demand
cost,
Year 1
($/yr)
Natural
gas use
(MBtu/yr)**
Natural
gas
cost,
Year 1
($/yr)
Water use
(gallons/yr)
Water
cost,
Year
1 ($/yr)
Other
energy
use
(MBtu/yr)**
Other
energy
cost,
Year 1
($/yr)
Other
energy-
related
O&M
costs,
Year 1
($/yr)
Total
costs,
Year
1 ($/yr)
Baseline
use
Post-
installatio
n use
Savings
(1) Notes
*Annual electric demand savings (kW/yr) is the sum of the monthly demand savings.
MBtu = 106 Btu.
**If energy is reported in units other than MBtu, provide a conversion factor to MBtu for link to cost schedules (e.g., 0.003413 MBtu/kWh).
D. ECM-Specific M&V Plan and Savings Calculation Methods:
1. NORESCO shall develop this section for each ECM:
Summarize the scope of work, location, and how cost savings are generated. Describe source of all savings including energy, water, O&M, and other (if applicable).
34 Specify the M&V guideline and option used from the International Performance Measurement and Verification Protocol (IPMVP).
Provide an overview of M&V Activities for ECM. Explain intent of M&V Plan, including what is being verified.
Provide a n overview of savings calculations methods for ECM. Provide a general description of analysis methods used for savings calculations.
2. Proposed Energy Savings Calculations and Methodology Provide detailed description of analysis methodology used. Descr ibe any data manipulation or analysis that was conducted prior to applying savings calculations. Detail all assumptions and sources of data, including all stipulated values used in calculations.
Include equations and technical details of all calculations m ade. (Use appendix and electronic format as necessary.) Include description of data format (headings, units, etc.). Details of any savings or baseline adjustments that may be required. Detail energy rates used to calculate cost savings. Provide post-acceptance performance period energy and water rate adjustment factors based on agreed upon escalation factors. Detail proposed savings for this energy conservation measure for post -acceptance performance period. Include table outlining the Proposed Annual Savings for Each ECM.
3. Operations and Maintenance Cost Savings
Provide justification for O&M cost savings, inclusive of calculations, analysis, and sources of data. Describe how savings are generated. Detail cost savings calculations. Provide post-acceptance performance period other cost savings adjustment factors.
4. Details of other savings (if applicable)
Provide justification for cost savings, inclusive of calculations, analysis, and sources of data. Describe how savings are generated. Detail cost savings calculations. Provide post-acceptance performance period other cost savings adjustment factors.
5. Post-Installation M&V Activities - Describe the intent of post-installation verification activities, including what will be verified.
Describe variables affecting post-installation energy or water use. Include variables such as weather, operating hours, set point changes, etc. Describe how each variable will be quantified, (i.e., measurements, monitoring, assumptions, manufacturer data, maintenance logs, engineering resources, etc.)
Define key system performance factors characterizing the post-installation conditions such as lighting intensities, temperature set points, etc.
Define requirements for CITY witnessing of measurements if diffe rent than whole project data requirements.
Detail data analysis to be performed.
Provide details of post-installation data to be collected, including:
o Parameters to be monitored:
o details of equipment to be monitored (location, type, model, quantity, etc .); o A sampling plan, including details of usage groups and sample sizes; o Duration, frequency, interval, and seasonal or other requirements of measurements; o Monitoring equipment to be used, including installation requirements for monitoring equipment;
o Calibration requirements/procedures;
o Expected accuracy of measurements/monitoring equipment; o Quality control procedures to be used;
o Form of data to be collected (.xls, .cvs, etc.); and, o Sample data collection forms (optional).
6. Post-Acceptance Performance Period Verification Activities
35 Describe variables affecting post -acceptance performance period energy or water use.
Include variables such as weather, operating hours, set point changes, etc. Describe how each variable will be quantified, i.e., mea surements, monitoring, assumptions, manufacturer data, maintenance logs, engineering resources, etc. Define key system performance factors characterizing the post -acceptance performance period conditions. Include factors such as comfort conditions, lighti ng intensities, temperature set points, etc.
Describe the intent of post-acceptance performance period verification activities – what will be verified.
Provide detailed schedule of post -acceptance performance period verification activities and inspections.
Define requirements for CITY witnessing of measurements if different than whole project data requirements.
Detail data analysis to be performed.
Provide details of post-acceptance performance period data to be collected, including:
o Parameters to be monitored;
o Details of equipment to be monitored (location, type, model, quantity, etc.); o A sampling plan, including details of usage groups and sample sizes; o Duration, frequency, interval, and seasonal or other requirements of measurements; o Monitoring equi pment to be used, including installation requirements for monitoring equipment;
o Calibration requirements/procedures;
o Expected accuracy of measurements/monitoring equipment; o Quality control procedures to be used;
o Form of data to be collected (.xls, .cvs, etc.); and, o Sample data collection forms (optional).
Define O&M and repair reporting requirements. Detail verification activities and reporting responsibilities of CITY and contractor for operations and maintenance items. Define reporting schedule.
E. Annual Fees for Maintenance, Measurement & Verification
First Year Annual Service
Fees
Maximum Percent of
Annual Savings
*completed prior to
signing Master Agreement
Final Annual Service
Fee
* Determined in the IGA
Measurement & Verification TBD
On-going Training TBD
Operations & Maintenance TBD
36 Exhibit A-3
MIMIMUM SAVINGS GUARANTEE
1. DEFINITIONS
When used in this Guarantee, the following capitalized words shall have the meaning ascribed to them below:
“Baseline Period” is the period of time that defines the Baseline Usage and is representative of the facilities operations, consumption, and usage that is used as the benchmark for determining cost avoidance.
“Baseline Usage” is the calculated energy usage of the Facilitie s prior to the implementation of the ECMs.
“Baseline Demand” is the calculated energy demand of a piece of equipment or a site prior to the implementation of the ECMs. Baseline physical conditions, such as equipment counts, nameplate data, and control strategies, will typically be determined through building occupancy, energy end-use survey and plug load surveys of the Facilities.
“Cumulative Excess Verified Savings” is the total amount of Excess Verified Savings based on the results of the Measurement & Verification Plan in the Guaranteed Savings Reconciliation Report carried over to subsequent Guaranty Periods.
“Energy and Operational Cost Avoidance Guarantee Practices” are those practices identified in The Schedule of Savings, intended to achieve avoided costs in energy and/or operating expenses.
“Energy Costs” may include the cost of electricity and fuels to operate HVAC equipment, cogeneration system, facility mechanical and lighting systems, and energy management systems, and the cost of water and sewer usage, as applicable.
“ECM” the Energy Conservation Measure (ECM) is the installation of equipment or systems, or modification of equipment or systems as described in Attachment B.
“Excess Verified Savings” is the amount of Verified Savings minus Guaranteed Savings in a Guaranteed Period.
“Facilities” shall mean those described in Attachment A.
“First Guarantee Period” is defined as the period beginning on the first (1 st) day of the month following the effective date of the Delivery and Acceptance Certificate (Attachment E-2) upon Final Acceptance of this Project by the CITY and ending on the day prior to the first (1st) twelve-month anniversary thereof.
“Guarantee Period” is defined as the First Guarantee Period and each of the successive twelve (12) month periods commencing on the anniversary of the commencement of the First Guarantee Period throughout the Term of this Guarantee.
“Guaranteed Cost Savings” is defined as the amount of avoided Energy and Operational Costs guaranteed to the CITY in each Guarantee Period. This does not include excess savings or the Cumulative Verified Savings.
“Guaranteed Savings Reconciliation Report” is defined as the process and report for determining the Verified Savings in each Guarantee Period and reconciling it to the Guaranteed Savings in the same Guarantee Period.
37 “IPMVP” shall mean the International Performance Measurement and Verification Protocol and its Measurement and Verification Guidelines for energy savings performance contract projects. The IPMVP guidelines classify measurement & verification approaches as Option A, Option B, Option C, and Option D.
“Measurement and Verification Plan” (M&V Plan) is defined as the plan providing details on how the Guarantee Savings will be verified.
“Operational Costs” shall include the cost of operating and maintaining the Facilities, such as, but not limited to, the cost of inside and outside labor to repair and maintain Covered Systems and Equipment, the cost of custodial supplies, the cost of replacement parts, the cost of deferred maintenance, the cost of lamp and ballast disposal, and the cost of new capital equipment as defined for each ECM in Section 4, Schedule of Values.
“Term” shall be one (1) calendar year from acceptance, provided that the Term shall automatically renew for successive one (1) year terms unless and until terminated by CITY.
“Verified Cost Savings” is the defined as the summation of avoided Energy and Operational Costs as determined by the Measurement & Verification Plan for the Facilit ies in each Guarantee Period as a result of the ECMs provided by NORESCO. This does not include excess savings from previous or subsequent guarantee periods.
2. TERM AND TERMINATION
2.1 Guarantee Term . The Term of this Guarantee shall commence on the fi rst (1 st) day of the month following the effective date of execution of the Final Delivery and Acceptance Certificate (Attachment E-2) upon Final Acceptance of this Project by the CITY and shall terminate at the end of [FULL FINANCING TERM] years unless terminated earlier by CITY as provided for herein.
2.2 Guarantee Termination. Should this Guarantee be terminated (including, as applicable, the Maintenance or Measurement & Verificat ion Services) in whole or in part for any reason prior to the end of the Term, the Guaranteed Savings for the Guarantee Period in which such termination becomes effective shall be prorated as of the effective date of such termination, with a reasonable adj ustment for seasonal fluctuations, if any, in Energy and Operational Costs, and the Guaranteed Savings for all subsequent Guarantee Periods shall be null and void.
3. COST SAVINGS GUARANTEE
3.1 Guaranteed Cost Savings: The following table lists the amount of Guaranteed Savings resulting from the ECMs to be installed by NORESCO.
Year
Energy & Water
Savings
$ Amount
Resiliency/Ren
ewable Energy
Operation &
Maintenance
Savings &
Smart Cities
$ Amount
Total Savings
$ amount
38 3.1.2 Savings Prior to Final Retrofit Acceptance . All energy and operational cost avoidance realized by CITY and as calculated through the Measurement & Verification Plan that result from activities undertaken by NORESCO prior to Final Acceptance accrue to the benefit of the CITY and may not be applied to the Verified Savings for the First Guaranty Period and any subsequent Guarantee Period after.
3.1.3 Cumulation of Savings . The Guaranteed Savings in each Guarantee Period are considered satisfied if the Verified Savings for such Guarantee Period equals or exceeds the Guaranteed Savings for such Guarantee Period.
3.1.4 Savings Shortfalls. In the event that the Verified Savings in any Guarantee Period is less than the Guaranteed Savings required for that Guarantee Period, NORESCO shall compensate CITY the amount of any such shortfall, limited by the value of the guarantee, within thirty (30) calendar days. At NORESCO’s sole discretion, NORESCO shall also be obligated to (1) remedy the ECM deficiencies causing the shortfall at no cost to the CITY or (2) continue to compensate the CITY for savings shortfalls.
3.2 Savings Reconciliation Documentation . NORESCO will provide CITY with a Guarantee Savings Reconciliation Report after each Guarantee Period within 60 days. CITY will assist NORESCO in generating the savings reconciliation report by providing NORESCO’s receipt thereof, together with access to relevant records relating to such Energy and Operating Costs. CITY will also assist NORESCO by permitting access to any energy billing information, mainten ance records, drawings, or other data deemed necessary by NORESCO to generate the said report. Data and calculations utilized by NORESCO in the preparation of its Guarantee Savings Reconciliation Report will be made available to CITY, along with such explanations and clarifications as CITY may reasonably request.
3.2.1 Acceptance of Guarantee Savings Reconciliation Report . At the end of each Guarantee Period, CITY will have forty-five (45) days to review the Guarantee Savings Reconciliation Report and provide written notice to NORESCO of non-acceptance of the Guarantee Savings Reconciliation Report for that Guarantee Year. Failure to provide written notice within forty-five (45) days of the receipt of the Guarantee Savings Reconciliation Report shall con stitute the deemed acceptance of the Report and its findings by the CITY.
3.2.2 Guarantee Savings Reconciliation. Verified Savings will be determined in accordance with the methodology(s), operating parameters, formulas, and constants as described below and/or defined in the Measurement & Verification Plan and/or additional methodologies defined by NORESCO that may be negotiated with CITY at any time. Actual savings reduction in utility bills may vary from the Verified Savings for reasons outside of NORESCO’s control including but not limited to: changes in energy and other utility rates and tariffs, changes in CITY operating schedules and usage patterns, changes in CITY loads due to addition or reductions in energy and water consuming devices, changes in weather, impacts due to the operations of ECMs, impacts due to the maintenance of ECMs maintained by CITY, and additions to and/or reduction in facility space usage. For the purposes of calculating any shortfalls or excesses of Verified Savings versus Guaranteed Savings, the Measurement & Verification Plan will be utilized.
3.2.3 Activities and Events Adversely Impacting Savings . CITY must promptly notify NORESCO of any activities known to CITY, which adversely impacts NORESCO’s ability to realize the Guaranteed Savings and NORESCO shall be entitled to reduce the Guaranteed Savings by the amount of any such adverse impact to the extent that such adverse impact is beyond NORESCO’s reasonable control.
3.2.4 Guarantee Adjustment. NORESCO’s Guaranteed Savings obligations un der this Guarantee are contingent upon: (1) CITY following the operations and maintenance requirements for the ECMs in accordance with the Design-Build Construction Contract between the Parties ; (2) no alterations or additions being made to the ECMs by the CITY without prior notice and written agreement of the Parties; (3) CITY sending all current utility bills to NORESCO within two (2) weeks after receipt; and (4)
39 NORESCO’S ability to render services not being impaired by circumstances beyond its control. To the extent that the CITY defaults or fails to perform fully any of its obligations under this Guarantee, NORESCO may, in its sole discretion, adjust the Guaranteed Savings obligation; provided, however, that no adjustment hereunder shall be effective u nless NORESCO has first provided the CITY with written notice of CITY’s default(s) or failure(s) to perform and CITY has failed to cure its default(s) and failure(s) to perform within thirty (30) days after receipt of such notice.
3.2.5 Energy Rates. TO BE DETERMINED.
4. MEASUREMENT & VERIFICATION PLAN
4.1 Measurement and Verification . NORESCO and the CITY agree that the Verified Savings will be determined using the following Measurement and Verification Plan. Through this plan, the Guaranteed Savings generated by the ECMs installed in the Facilities in accordance with the Final IGA Report, as may be amended the Parties.
Measurement & Verification Plan: NORESCO and the CITY agree that the Verified Savings by ECM will be determined using the following Measurement & Verification plans further described in this section and in the Investment Grade Audit. Through this plan, the guaranteed savings generated by the ECMs installed in the Facilities will be validated. The M&V methodologies proposed for these ECMs are based on the latest version of the IPMVP. The objective of the plan is to quantify the actual el ectrical and fossil fuel and compare those to the specific Baseline Usage for each Facility, the difference of which is the Verified Savings.
During the term of the Guarantee, NORESCO will make adjustments to energy savings due to changes in building occu pancy, weather data, and utility rate schedules, etc. The unit costs of energy will be applied to the energy savings calculated by this M&V plan. Current utility cost and rate structures will be used in the Final IGA Report as a basis for determining the utility unit costs to be used during the performance period to determine the cost savings.
4.2 M&V Descriptions: TO BE DETERMINED AND INCORPORATED FROM FINAL IGA.
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS.
INSURER(S) AFFORDING COVERAGE
INSURER F :
INSURER E :
INSURER D :
INSURER C :
INSURER B :
INSURER A :
NAIC #
NAME:
CONTACT
(A/C, No):
FAX
E-MAIL
ADDRESS:
PRODUCER
(A/C, No, Ext):
PHONE
INSURED
REVISION NUMBER:CERTIFICATE NUMBER:COVERAGES
IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed.
If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s).
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.
OTHER:
(Per accident)
(Ea accident)
$
$
N / A
SUBR
WVD
ADDL
INSD
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. $
$
$
$PROPERTY DAMAGE
BODILY INJURY (Per accident)
BODILY INJURY (Per person)
COMBINED SINGLE LIMIT
AUTOS ONLY
AUTOSAUTOS ONLY
NON-OWNED
SCHEDULEDOWNED
ANY AUTO
AUTOMOBILE LIABILITY
Y / N
WORKERS COMPENSATION
AND EMPLOYERS' LIABILITY
OFFICER/MEMBER EXCLUDED?
(Mandatory in NH)
DESCRIPTION OF OPERATIONS below
If yes, describe under
ANYP ROPRIETOR/PARTNER/EXECUTIVE
$
$
$
E.L. DISEASE - POLICY LIMIT
E.L. DISEASE - EA EMPLOYEE
E.L. EACH ACCIDENT
ER
OTH-
STATUTE
PER
LIMITS(MM/DD/YYYY)
POLICY EXP
(MM/DD/YYYY)
POLICY EFF
POLICY NUMBERTYPE OF INSURANCELTR
INSR
DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required)
EXCESS LIAB
UMBRELLA LIAB $EACH OCCURRENCE
$AGGREGATE
$
OCCUR
CLAIMS-MADE
DED RETENTION $
$PRODUCTS - COMP/OP AGG
$GENERAL AGGREGATE
$PERSONAL & ADV INJURY
$MED EXP (Any one person)
$EACH OCCURRENCE
DAMAGE TO RENTED
$PREMISES (Ea occurrence)
COMMERCIAL GENERAL LIABILITY
CLAIMS-MADE OCCUR
GEN'L AGGREGATE LIMIT APPLIES PER:
POLICY PRO-
JECT LOC
CERTIFICATE OF LIABILITY INSURANCE
DATE (MM/DD/YYYY)
CANCELLATION
AUTHORIZED REPRESENTATIVE
ACORD 25 (2016/03)
© 1988-2016 ACORD CORPORATION. All rights reserved.
CERTIFICATE HOLDER
The ACORD name and logo are registered marks of ACORD
HIRED
AUTOS ONLY
04/01/2024
04/01/2025
091024
X
091025
B
2,000,000
WC 020395995 (WI)
24147
MWZZ 316151-24
2,000,000
A
A
2,000,000
04/01/2025 X
X
Professional Liability
04/01/2024
CN101479273-NOR-GAWXP-24-25
1,000,000
19399
...
04/01/2025
NYC-012044162-04
04/01/2024
X
2,000,000
09/13/2024
'See Acord 101'
''Per Location''
Regarding notice of cancellation to certificate holder(s), endorsement GL 943 003 0421 (copies attached) applies to auto and general liability policies. 14 2,000,000
04/01/2025
''$2,000,000 General Aggregate''
1,000,000
X
Aggregate
1,000,000
1,000,000
A
04/01/2025
04/01/2024
04/01/2024
X
MWTB 316148-24
''$10,000,000 General Aggregate''
Per Claim
10,000
WC 020395994 (CA)
MWZU 316150-24
300,000
City of Buena Park and the City's Indemnitees is/are included as additional insured (except Workers Compensation) when required by written contract and/or agreement. Insurance, when applicable to an additional insured and when specified in a written agreement among the parties, applies on a primary basis with no contribution by the additional insured. Waiver of subrogation is included if required by contract.
RE: Progressive Design Build Services Agreement, NORESCO Project No 212151. Term: 09/10/2024 - 09/10/2025.
ONE RESEARCH DRIVE, SUITE 400C
NORESCO, LLC
WESTBOROUGH, MA 01581
1,000,000
Old Republic Insurance Company
X
1166 Avenue of the Americas
MARSH USA, LLC.
New York, NY 10036
MWZY 316149-24
AIU Insurance Co
N
Buena Park, CA 90620
City of Buena Park
6650 Beach Blvd
04/01/2024
B
''Per Policy''
1,000,000
X
A
2,000,000
04/01/2025
ACORD 101 (2008/01)
The ACORD name and logo are registered marks of ACORD
© 2008 ACORD CORPORATION. All rights reserved.
THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER: FORM TITLE:
ADDITIONAL REMARKS
ADDITIONAL REMARKS SCHEDULE Page of
AGENCY CUSTOMER ID:
LOC #:
AGENCY
CARRIER NAIC CODE
POLICY NUMBER
NAMED INSURED
EFFECTIVE DATE:
MARSH USA, LLC.
AL,AK,AR,AZ,CO,CT,DC,DE,FL,GA,HI,IA,ID,IL,IN,KS,KY,LA,MA,MD,ME,MI,MN,MO,MS,MT,NC,NE,NH,NJ,NM,NV,NY,OK,OR,PA,RI,SC,SD,TN,TX,UT,VA,VT,WY EFFECTIVE DATE: 04/01/2024
POLICY NUMBER: WC 020395993
ADDITIONALSTATES COVERED:
EXPIRATION DATE: 04/01/2025
CONTINUED FROM WORKERS' COMPENSATION:
2 New York
Certificate of Liability Insurance25
INSURER: AIU Insurance Company
ONE RESEARCH DRIVE, SUITE 400C
NORESCO, LLC
WESTBOROUGH, MA 01581
2 CN101479273
City of Buena Park
City Council Regular Meeting Agenda Report
A. PUBLIC HEARING ON ISSUANCE OF TAX-EXEMPT BONDS FOR DORADO SENIOR APARTMENTS LOCATED AT 8622 STANTON AVENUE AND RESOLUTION APPROVING THE ISSUANCE OF BONDS Meeting
Tuesday, May 27, 2025, 5:00 PM
Agenda Group
PUBLIC HEARING Item: 6A.
Prepared By
Matt Foulkes, Director of Community and Economic
Development
Department Head Approval
Aaron France, City Manager
Presented By
Matt Foulkes, Director of Community and Economic
Development
RECOMMENDED ACTION
1) Conduct a Tax Equity and Fiscal Responsibility Act Hearing in consideration of the issuance of tax-exempt bond financing by the California Statewide Communities Development Authority for the benefit of Dorado Senior, LP, to provide financing for the acquisition, rehabilitation, improvement, and equipping of a 150-unit multifamily rental housing project generally known as Dorado Senior Apartments; and, 2) Adopt a resolution approving the issuance of Bonds by the California Statewide Communities Development Authority not to exceed $30,000,000, for the benefit of Dorado Senior, LP, to provide financing for the acquisition, rehabilitation, improvement, and equipping of a 150-unit multifamily rental housing project generally known as Dorado Senior Apartments.
PREVIOUS CITY COUNCIL ACTION
In September 2002, the former Redevelopment Agency Board approved an Owner Participation and Loan Agreement (OPLA) providing a loan of $1,200,000 for the development of an affordable 150-unit Dorado Senior Apartment Project. The units were restricted at 30%-60% Area Median Income (AMI) for 55 years.
In March 2003, July 2003, January 2004, and July 2004, the Agency Board approved an Amended and Restated OPLA, First Amendment to the OPLA, Second Amendment to the OPLA and Third Amendment to the OPLA extending the terms of the agreements to allow the developer to obtain competitive Low Income Tax Credits (LIHTC) to finance the project.
In July 2007, the Agency Board approved the Fourth Amendment to the OPLA amending the one and two bedroom unit mix at 30%-60% AMI and allowing additional sources of financing.
In November 2007, the Agency Board approved the Fifth Amendment to the OPLA to allow the developer to restructure the financing plan and approve additional sources of financing due to an increase in development costs.
DISCUSSION
In September 2002, the former Redevelopment Agency Board approved an Owner Participation and Loan Agreement (OPLA) providing a loan in the amount of $1,200,000 for the development of the affordable 150-unit Dorado Senior Apartments. The Agency Board approved subsequent amendments to the OPLA to allow the developer to obtain and restructure financing and amend the low income affordable housing unit mix of one- and two-bedroom units. In April 2021, the loan was repaid in full and the Deed of Trust securing the loan was reconveyed. The affordable housing restrictions remain in effect until September 2062.
Dorado Senior, LP (the “Borrower”) has requested that the California Statewide Communities Development Authority (“CSCDA”) serve as the municipal issuer of tax-exempt multi-family housing revenue bonds in an aggregate principal amount not to exceed $30,000,000 (the “Bonds”). The proceeds of the Bonds will be used for the purpose of making a loan to the Borrower, to enable the Borrower to finance the acquisition, rehabilitation, improvement and equipping of a 150-unit affordable multifamily housing rental project located at 8622 Stanton Avenue, Buena Park, California (the “Project”), which will be owned and operated by the Borrower. The Borrower will substantially rehabilitate the Project with the proceeds of the Bonds. The affordability of the Project will now extend for 55 additional years from the closing of the financing. On April 8, 2025, the project received an award of private activity bond allocation from the California Debt Limit Allocation Committee.
In order for all or a portion of the Bonds to qualify as tax-exempt bonds, the City of Buena Park (“City”) must conduct a public hearing (the Tax Equity and Fiscal Responsibility Act (TEFRA) Hearing”) providing the members of the community an opportunity to speak in favor of or against the use of tax-exempt bonds for the financing of the Project. Adoption of the resolution is solely for the purposes of satisfying the TEFRA, the Internal Revenue Code and the California Government Code Section 6500 (and following). Prior to such TEFRA Hearing, reasonable notice must be provided to the members of the community. Following the close of the TEFRA Hearing, an “applicable elected representative” of the governmental unit hosting the Project must provide its approval of the issuance of the Bonds for the financing of the Project.
CSCDA is a joint powers authority sponsored by the League of California Cities ("League") and the California State Association of Counties ("CSAC"). CSCDA was created by the League and CSAC in 1988 to enable local government and eligible private entities access to low-cost, tax-exempt financing for projects that provide a tangible public benefit, contribute to social and economic growth, and improve the overall quality of life in local communities throughout California. CSCDA is comprised of more than 530 members, including the City of Buena Park, which has been a member since 1993. CSCDA has issued more than $75 billion through more than 1,800 financings since 1988.
PUBLIC HEARING NOTICE
On May 15, 2025, a notice of public hearing was posted at City Hall, the Ehlers Event Center, and the Buena Park Library. On May 16, 2025, a notice of public hearing was published in the Buena Park Independent.
BUDGET IMPACT
There is no fiscal impact to the City. The Bonds will be issued as limited obligations of CSCDA, payable solely from revenues and receipts derived from a loan to be made by CSCDA to the Borrower with the Bond proceeds. The City bears no liability with respect to the issuance of the Bonds. Further, the City is not a party to any of the financing documents related to the Bond issuance and is not named in any of the disclosure documents describing the Bonds or the proposed financing.
Attachments
Resolution.pdf
RESOLUTION NO. ____________
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BUENA PARK
APPROVING THE ISSUANCE BY THE CALIFORNIA STATEWIDE
COMMUNITIES DEVELOPMENT AUTHORITY OF EXEMPT FACILITY BONDS
FOR A QUALIFIED RESIDENTIAL RENTAL PROJECT FOR THE DORADO
SENIOR APARTMENTS
WHEREAS, the California Statewide Communities Development Authority (the “Authority”) is authorized pursuant to the provisions of California Government Code Section 6500 et seq. and the terms of an Amended and Restated Joint Exercise of Powers Agreement, dated as of June 1, 1988 (the “Agreement”), among certain local agencies throughout the State of California, including the City of Buena Park (the “City”), to issue revenue bonds in accordance with Chapter 7 of Part 5 of Division 31 of the California Health and Safety Code for the purpose of financing multifamily rental housing projects; and
WHEREAS, Dorado Senior, LP or a partnership of which Spira Equity Partners (the “Developer”) or a related person to the Developer is the general partner, has requested that the Authority adopt a plan of financing providing for the issuance of exempt facility bonds for a qualified residential rental project pursuant to Section 142(a)(7) of the Internal Revenue Code of 1986 (the “Code”) in one or more series issued from time to time, including bonds issued to refund such exempt facility bonds in one or more series from time to time, and at no time to exceed $30,000,000 in outstanding aggregate principal amount (the “Bonds”), to financ e or refinance the acquisition, rehabilitation and development of a senior multifamily rental housing project located at 8622 Stanton Avenue, Buena Park, California (the “Project”); and
WHEREAS, pursuant to Section 147(f) of the Code, prior to their issuance, the Bonds are required to be approved by the “applicable elected representative” of the governmental units on whose behalf such bonds are expected to be issued and by a governmental unit having jurisdiction over the entire area in which any facility financed by such bonds is to be located, after a public hearing held following reasonable public notice; and
WHEREAS, the members of this City Council (this “City Council”) are the applicable elected representatives of the City; and
WHEREAS, the City has no financial obligation regarding the bonds and is only holding the public hearing to comply with Section 142(a)(7) of the Code and because the property seeking the bonds is located within the City boundaries; and
WHEREAS, there has been published, at least 7 days prior to the date hereof, in a newspaper of general circulation within the City, a notice that a public hearing regarding the Bonds would be held on a date specified in such notice; and
WHEREAS, such public hearing was conducted on such date, at which time an opportunity was provided to interested parties to present arguments both for and against the issuance of the Bonds; and
WHEREAS, the Authority is also requesting that the City Council approve the issuance of any refunding bonds hereafter issued by the Authority for the purpose of refinancing the Bonds
which financed the Project (the “Refunding Bonds”), but only in such cases where federal tax laws would not require additional consideration or approval by the City Council; and
WHEREAS, it is intended that this resolution shall constitute the approval of the issuance of the Bonds required by Section 147(f) of the Code and Section 9 of the Agreement;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BUENA PARK AS FOLLOWS:
Section 1. The above recitals are true and correct.
Section 2. The City Council hereby approves the issuance of the Bonds and the Refunding Bonds by the Authority. It is the purpose and intent of the City Council that this resolution constitute approval of the Bonds for the purposes of (a) Section 147(f) of the Code and (b) Section 9 of the Agreement.
Section 3. The officers of the City are hereby authorized and directed, jointly and severally, to do any and all things and to execute and deliver any and all documents that they deem necessary or advisable in order to carry out, give effect to and comply with the terms and intent of this resolution and the financing approved hereby.
Section 4. This resolution shall take effect immediately upon its passage.
PASSED AND ADOPTED this 27th day of May 2025 by the following called vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
______________________________
Mayor
ATTEST:
__________________________
City Clerk
I hereby certify that the foregoing resolution was duly and regularly passed and adopted at a regular meeting of the City Council of the City of Buena Park held this _____ day of _______________ 2025.
______________________________
City Clerk
City of Buena Park
City Council Regular Meeting Agenda Report
A. DISCUSS AND PROVIDE DIRECTION REGARDING CONSIDERATION OF A FUTURE MUNICIPAL CODE
AMENDMENT TO RESTRICT UNNECESSARY COMMERCIAL VEHICLE IDLING Meeting
Tuesday, May 27, 2025, 5:00 PM
Agenda Group
STUDY SESSION Item: 9A.
Prepared By
Matt Foulkes, Director of Community and Economic
Development
Department Head Approval
Aaron France, City Manager
Presented By
Matt Foulkes, Director of Community and Economic
Development
DISCUSSION
This item was requested by Council Member Sonne to discuss and provide direction to staff regarding a future Municipal Code Amendment pertaining to commercial vehicle idling. Vehicle idling is a major source of local air pollutant and greenhouse gas emissions, affecting public health - especially for children, the elderly, and those with respiratory conditions. Gas-powered vehicles, despite being substantially cleaner than they were in the 1960s, still emit exhaust chemicals that negatively impact air quality and health. Internal combustion engine vehicles emit about 20 lbs. of CO2 per gallon of fuel consumed. In California, it is estimated that idling vehicles when parked emit
2.7 million tons of carbon dioxide annually in the process of consuming 270 million gallons of fuel.
The California Air Resources Board (CARB) already limits idling for diesel-fueled commercial vehicles (over 10,000 lbs.) to no more than five minutes at any location to reduce exposure to diesel particulate matter and other air toxins. Although passenger vehicles (cars, SUVs, vans, pickup trucks) account for more than 85% of the vehicles on California's roads, there is no statewide restriction for idling of these vehicles when parked. Several cities and counties have adopted local ordinances restricting idling on public or private property with tailored exemptions for safety, health, and operational necessities.
An ordinance which limits vehicle idling would be consistent with the City’s upcoming Climate Action and Adaptation Plan goals. As a practical matter, enforcement of these regulations will be challenging. Code enforcement and police officers will rarely be available to respond to complaints of unnecessary idling violations due to limited staff resources and the need to prioritize other health and safety issues. Even when resources are available, the violation typically would not be ongoing when enforcement officers arrive at the scene, making formal enforcement action difficult. In other cities that have adopted anti-idling regulations, the primarily function of the ordinance is as an educational tool to help people and businesses understand and appreciate the negative environmental and health impacts of idling with a particular focus around schools, parks and other locations where people gather outside near idling vehicles.
For example, the City of Palo Alto’s anti-idling ordinance requires drivers to shut off their engines after three minutes if they are not in active traffic. Enforcement focuses on educating the community about the environmental and health impacts associated with idling but also includes the ability to impose fines on offenders who allow cars to idle more than five minutes, with a written warning for the first violation, a $100 fine for a second violation and a $150 fine for all subsequent violations. The City of Santa Cruz also has a more restrictive anti-idling ordinance which limits idling to no more than 90 seconds while parked, and Cupertino’s climate action plan aims to partner with schools and the Chamber of Commerce to reduce idling. Each of these cities excludes emergency vehicles and emergency situations where there is a need to operate equipment to prevent a safety or health emergency.
Should the City Council direct staff to proceed with the development of an anti-idling ordinance, potential ordinance components could include:
Prohibit any vehicle from idling for more than three (3) consecutive minutes on public property, in public rights-of-way, or on private property open to the general public within city limits.
Exemptions to Idling Regulations
Traffic control devices, law enforcement direction, or traffic conditions beyond the operator’s control.
Idling necessary to operate defrosters, heaters, air conditioners, or other equipment to prevent a health or safety emergency.
Emergency or law enforcement vehicles while engaged in official duties.
Auxiliary work equipment actively in use (e.g., cargo refrigeration units, waste compactors, pumps, mixers).
Vehicle maintenance, repair, diagnostics, or adherence to manufacturer's operation instructions.
Enforcement of this ordinance would emphasize education over punitive measures. Use of warning notices and targeted educational outreach would be first while citations would be reserved for repeat or egregious violations, focusing on high-impact areas (schools, parks, and transit hubs).
Public Outreach
Focusing outreach efforts on educating the public about the health and environmental effects of idling, including:
“Idle‐Free” signage at key locations around the city.
Educational material about anti-idling sent out via water bill inserts, community events, and social media.
Create an “Idle‐Free Buena Park” pledge program in partnership with local businesses and schools to promote voluntary compliance.
Next Steps
Based on the direction provided by the City Council, staff will work with the City Attorney’s Office to prepare the necessary ordinance and bring this item back for consideration at a future City Council meeting.
Attachments
Sample Anti Idling Poster.pdf