Section 13.6 Rights And Remedies Are Cumulative. Except where an express and exclusive remedy or measure of liquidated damages is provided, the rights and remedies of a Party pursuant to this Article XIII shall be cumulative and in addition to the rights of the Parties otherwise provided in this Agreement. Any Non-Defaulting Party shall be obligated to use commercially reasonable efforts to mitigate its Costs, Losses and damages resulting from or arising out of any event of Default of the other Party under this Agreement.
Section 13.7 Seller’s Pre-COD Liability Limitation. Notwithstanding any other provision of this Agreement, Seller’s aggregate liability under this Agreement prior to the Commercial Operation Date, including for Daily Delay Damages, the Damage Payment, any other payments owed under this Agreement, and any draws by Buyer on the Development Security, shall not exceed the Maximum Pre-COD Liability.
ARTICLE XIV
MISCELLANEOUS
Section 14.1 Authorized Representative. Each Party shall designate an authorized representative who shall be authorized to act on its behalf with respect to those matters contained herein (each an “Authorized Representative”), which shall be the functions and responsibilities of such Authorized Representatives. Each Party may also designate an alternate who may act for the Authorized Representative. Within thirty (30) days after execution of this Agreement, each Party shall notify the other Party of the identity of its Authorized Representative, and alternates if designated, and shall promptly notify the other Party of any subsequent changes in such designation. The Authorized Representatives shall have no authority to alter, modify, or delete any of the provisions of this Agreement. To the extent that an Authorized Representative’s contact information is not provided in Appendix J, at the time a Party designates such Authorized Representative, such Party shall concurrently provide written notice to the other Party of such Authorized Representative’s contact information.
Section 14.2 Notices. With the exception of billing invoices pursuant to Section 11.2, all notices, requests, demands, consents, approvals, waivers and other communications which are required under this Agreement shall be (a) in writing (regardless of whether the applicable
5.a
Packet Pg. 313
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
68 provision expressly requires a writing), (b) deemed properly sent if delivered in person or sent by electronic mail transmission, reliable next business day courier, or sent by registered or certified mail, postage prepaid to the persons specified in Appendix J (or at such other address or addresses as a Party may designate for itself from time to time by Notice hereunder), and (c) deemed delivered, given and received on the date of delivery, in the case of email transmission (provided that notice by email transmission will not be deemed effective until confirmed by return electronic communication from the recipient), or on the date of receipt or rejection in the case of delivery in person, by reliable next business day courier, or by registered or certified mail.
Section 14.3 Dispute Resolution; Governing Law; Venue.
(a) In the event of any claim, controversy or dispute between the Parties arising out of or relating to or in connection with this Agreement (including any dispute concerning the validity of this Agreement or the scope and interpretation of this Section 14.3) (a “Dispute”), either Party (the “Notifying Party”) may deliver to the other Party (the “Recipient Party”) notice of the Dispute with a detailed description of the underlying circumstances of such Dispute (a “Dispute Notice”). The Dispute Notice shall include a schedule of the availability of the Notifying Party’s senior officers (having a title of vice president (or its equivalent) or higher) duly authorized to settle the Dispute during the thirty (30) day period following the delivery of the Dispute Notice. (b) The Recipient Party shall, within five (5) Business Days following receipt of the Dispute Notice, provide to the Notifying Party a parallel schedule of availability of the Recipient Party’s senior officers (having a title of vice president (or its equivalent) or higher) duly authorized to settle the Dispute. Following delivery of the respective senior officers’ schedules of availability, the senior officers of the Parties shall meet and confer as often as they deem reasonably necessary during the remainder of the thirty (30) day period in good faith negotiations to resolve the Dispute to the satisfaction of each Party. (c) In the event a Dispute is not resolved pursuant to the procedures set forth in Section 14.3(a) and Section 14.3(b) by the expiration of the thirty (30) day period set forth in Section 14.3(a), then a Party may pursue any legal remedy available to it in accordance with the provisions of this Agreement.
(d) In addition to the Dispute resolution process set forth in this Section 14.3, the Parties shall comply with California law governing claims against public entities and presentment of claims, including that nothing in this Agreement shall waive the obligations or rights set forth in the California Government Claims Act (Government Code Section 810 et seq.), each to the extent applicable.
(e) This Agreement was made and entered into in the County of Los Angeles, California and shall be governed by, interpreted and enforced in accordance with the laws of the State of California, without regard to conflict of law principles. (f) All litigation arising out of, or relating to this Agreement, shall be brought in a state or federal court in the County of Los Angeles in the State of California. The Parties irrevocably agree to submit to the exclusive jurisdiction of such courts in the State of California and waive any defense of forum non conveniens.
5.a
Packet Pg. 314
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
69 Section 14.4 Further Assurances; Change in Electric Market Design. (a) Each Party agrees to execute and deliver all further instruments and documents, and take all further actions not inconsistent with the provisions of this Agreement, and which do not involve the assumptions of obligations other than those provided for in this Agreement, that may be reasonably necessary to effectuate the purposes and intent of this Agreement.
(b) Seller shall at its own cost take any necessary actions to ensure the Facility’s ability to deliver Facility Energy to the Point of Delivery and participate in the CAISO day ahead and real-time markets, or its successors. If a change in the CAISO Tariff, or a regionalization or other major change to the market structure of the western interconnection overseen by WECC (other than a Change in Law as addressed in Section 7.7 above), renders this Agreement or any provisions hereof incapable of being performed or administered, then either Party may request that Buyer and Seller enter into negotiations to make the minimum changes to this Agreement necessary to make this Agreement capable of being performed and administered, while attempting to preserve to the maximum extent possible the benefits, burdens, and obligations set forth in this Agreement as of the Effective Date. Upon delivery of such a request, Buyer and Seller shall engage in such negotiations in good faith. If Buyer and Seller are unable, within sixty (60) days after delivery of such request, to agree upon changes to this Agreement or to resolve issues relating to changes to this Agreement, then either Party may submit issues pertaining to changes to this Agreement to the Dispute resolution process set forth in Section 14.3. Notwithstanding the foregoing, (i) a change in cost shall not in and of itself be deemed to render this Agreement or any of the provisions hereof incapable of being performed or administered, or constitute, or form the basis of, a Force Majeure, and (ii) all of the unaffected provisions of this Agreement shall remain in full force and effect during any period of such negotiation or dispute resolution.
Section 14.5 No Dedication of Facilities. Any undertaking by one Party to the other Party under any provisions of this Agreement shall not constitute the dedication of the Facility or any portion thereof of either Party to the public or to the other Party or any other Person, and it is understood and agreed that any such undertaking by either Party shall cease upon the termination of such Party’s obligations under this Agreement.
Section 14.6 Force Majeure.
(a) A Party shall not be considered to be in Default in the performance of any of its obligations under this Agreement when and to the extent such Party’s performance is prevented by a Force Majeure that, despite the exercise of due diligence and commercially reasonable efforts, such Party is unable to prevent or mitigate, provided the Party has given a written detailed description of the particulars of the Force Majeure to the other Party within fourteen (14) days after becoming aware that the claimed Force Majeure event will have a negative impact on the Facility or the Party’s obligations under this Agreement (the “Force Majeure Notice”) which notice shall include information with respect to the nature, cause and date and time of commencement of such event, and the anticipated scope and duration of the delay; provided that the Force Majeure event shall not have occurred more than ninety (90) days prior to the date of the Force Majeure Notice. The Party providing such Force Majeure Notice shall be excused from fulfilling its obligations under this Agreement until such time as the Force Majeure has ceased
5.a
Packet Pg. 315
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
70 to prevent performance or other remedial action is taken, at which time such Party shall promptly notify the other Party of the resumption of its obligations under this Agreement. If Seller is unable to deliver, or Buyer is unable to receive, Facility Energy due to a Force Majeure, then Buyer shall have no obligation to pay Seller for Facility Energy not delivered or received by reason thereof.
The foregoing provisions shall not excuse any obligation of Seller with respect to delivery of GEP Shortfall Energy or Replacement Product, as applicable, or any obligation of Buyer for payment of Product including for Deemed Delivered Energy, each arising prior to the occurrence of any Force Majeure event. In no event shall a Party be obligated to compensate the other Party or any other Person for any losses, expenses or liabilities that the other Party or such other Person may sustain as a consequence of any Force Majeure.
(b) The term “Force Majeure” means any act or event that delays or prevents a Party from timely performing all or a portion of its obligations under this Agreement or from complying with all or a portion of the conditions under this Agreement, including without limitation any act of God (including fire, flood, mudslide, earthquake, extremely severe storm, ice storm or hail, lightning strike, tornado, volcanic eruption, hurricane or other natural disaster, new epidemic or pandemic distinct from COVID-19), labor disturbance, strike or lockout of a national scope, act of the public enemy, war, insurrection, riot, explosion, terrorist activities, or any order, regulation or restriction imposed by governmental, military or lawfully established civilian authorities that (i) could not be reasonably anticipated as of the Effective Date, (ii) is not within the reasonable control of, or the result of negligence, willful misconduct, breach of contract, intentional act or omission or wrongdoing on the part of the affected Party (or any subcontractor or Affiliate of that Party, or any Person under the control of that Party or any of its subcontractors or Affiliates, or any Person for whose acts such subcontractor or Affiliate is responsible), and (iii) by the exercise of due diligence the affected Party is unable to overcome or avoid or cause to be avoided; provided, nothing in clause (iii) above shall be construed so as to require a Party to accede or agree to any provision not satisfactory to it in order to settle and terminate a strike or labor dispute in which it may be involved. Notwithstanding the foregoing, the conditions existing as of the date of this Agreement due to the COVID-19 pandemic shall not be considered a Force Majeure, but any subsequent material government restrictions that materially impact a Party’s obligations under this Agreement due to a worsening or resurgence of the COVID-19 pandemic may be considered a Force Majeure. Any Party rendered unable to fulfill any of its obligations by reason of a Force Majeure shall exercise due diligence to attempt to remove such inability with reasonable dispatch within a reasonable time period and mitigate the effects of the Force Majeure.
The relief from performance shall be of no greater scope and of no longer duration than is required by the Force Majeure, provided the suspension of performance due to a claim of Force Majeure Event shall include any reasonable time period for mobilization/re-mobilization which inclusion shall be subject to the temporal caps for Force Majeure events set forth in this Agreement in Section 14.6(c) and the defined term “Development Cure Period”. Without limiting the generality of the foregoing, a Force Majeure does not include any of the following (each an “Unexcused Cause”): (1) any requirement to comply with a RPS Law or any change (whether voluntary or mandatory) in any RPS Law, or other Change in Law, that may affect the value of the Products; (2) events arising from the failure by Seller to construct, operate or maintain the Facility in accordance with this Agreement, except to the extent caused by a Force Majeure Event described above this sentence in this Section 14.6(b); (3) any increase of any kind in any cost; (4) delays in or inability of a Party to obtain financing or other economic hardship of any kind, including a Trade Event, Qualifying BLM Delay, Qualifying Transformer Delay, or Qualifying
5.a
Packet Pg. 316
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
71 Interconnection Delay; (5) Seller’s ability to sell any Facility Energy at a price in excess of those provided in this Agreement or Buyer’s ability to purchase the Product or any part thereof at a price lower than that provided in this Agreement; (6) curtailment or other interruption of any Transmission Service, except to the extent caused by a Force Majeure Event described above this sentence in this Section 14.6(b); (7) failure of third parties to provide goods or services essential to a Party’s performance, except to the extent caused by caused by a Force Majeure Event described above this sentence in this Section 14.6(b); (8) Facility or equipment failure of any kind, including a Qualifying Transformer Failure, except to the caused by a Force Majeure Event described above this sentence in this Section 14.6(b); (9) any changes in the financial condition of Buyer, Seller, the Facility Lender or any subcontractor or supplier affecting the affected Party’s ability to perform its obligations under this Agreement; or (10) Seller’s inability to obtain sufficient fuel, including due to lack of wind, sun or other fuel source of an inherently intermittent nature, or power to operate the Facility, except to the extent caused by a Force Majeure Event described above this sentence in this Section 14.6(b).
(c) Buyer may terminate this Agreement if (i) a Force Majeure event occurs that reduces the production of the Facility by more than 50% of the Contract Capacity for a period of three hundred sixty five (365) consecutive days, or (ii) the Facility is rendered inoperable and the Independent Engineer, determines that the Facility cannot be repaired or replaced within a period of twenty four (24) months following the date of the occurrence of the Force Majeure event. (d) Any termination of this Agreement under Section 14.6(c) shall be “no- fault” and neither Party shall have any liability or obligation to the other Party arising out of such termination. Notwithstanding the foregoing, upon any such termination, each Party shall pay the other Party for any and all amounts hereunder that may be owing, including with respect to payments by Seller, for any existing GEP Shortfall Energy, or other outstanding payments due in the ordinary course that occurred prior to the termination. Buyer shall return to Seller the Performance Security (less any amounts drawn by Buyer in accordance with this Agreement). The exercise by Buyer of its right to terminate this Agreement under Section 14.6(c) shall not render Buyer liable for any losses or damages incurred by Seller whatsoever.
Section 14.7 Assignment.
(a) Except as provided below in this Section 14.7, neither Party may assign this Agreement or its rights or obligations under this Agreement, without the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned, or delayed. A Change of Control is deemed an assignment for purposes of this Agreement. Any assignment, including any Change of Control, made without written consent (except as otherwise permitted by this Section 14.7), or in violation of the conditions to assignment set out in this Section 14.7, shall be null and void. Each Party (“Party A”) shall be responsible for the reasonable costs (including reasonable attorneys’ fees) of the other Party (“Party B”) associated with Party B’s preparation, review, execution and delivery of documents in connection with any assignment of this Agreement by Party A.
(b) Buyer’s consent shall not be required in connection with the collateral assignment of this Agreement or a pledge of the equity interests in Seller to any Facility Lender for the sole purpose of financing this Facility; provided, however, that the terms of such financing
5.a
Packet Pg. 317
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
72 and the documentation relating thereto shall not conflict with the applicable terms and conditions of this Agreement. Seller shall provide Buyer with ninety (90) days’ prior notice of any such collateral assignment or pledge. If a Facility Lender, any designee of the Facility Lender, or a purchaser or grantee at a foreclosure sale by judicial or nonjudicial foreclosure and sale or by a conveyance in lieu of foreclosure shall take possession of or title to the Facility, such Facility Lender, designee, purchaser or grantee shall agree to be bound by the covenants and agreements of Seller in this Agreement, including the requirement that the Facility be operated and maintained by a Qualified Operator; provided, however, that until the Person who acquires title to the Facility executes and delivers to Buyer a written assumption of Seller’s obligations under this Agreement in form and substance acceptable to Buyer, such Person shall not be entitled to any of the benefits of this Agreement. Any sale or transfer of the Facility by any Facility Lender in connection with any foreclosure, whether judicial or nonjudicial, or any deed in lieu of foreclosure, in connection with any deed of trust, mortgage or Lien on the Facility shall be made only to an entity that is a Permitted Transferee. Seller shall comply with the terms set forth in the defined term “Portfolio Financing”.
(c) In addition to assignments addressed in Section 14.7(b), Seller may, without the prior written consent of Buyer, engage in a Permitted Transfer. Seller shall provide notice to Buyer of any Permitted Transfer upon the earlier of (i) within ten (10) Business Days prior to the Permitted Transfer, and (ii) within ten (10) Business Days after a FERC filing is submitted in advance of such Permitted Transfer.
(d) In connection with any financing or refinancing of the Facility, Buyer shall execute a consent to collateral assignment of this Agreement substantially in the form attached hereto as Appendix M; provided Buyer shall have no obligation to amend the terms and conditions of this Agreement (such consent, the “Facility Lender Consent”). The Facility Lender Consent shall provide the Facility Lender, as applicable, or its agent notice of the occurrence of any Default described in Section 13.1 and the opportunity to cure any such default to the extent Seller has an opportunity hereunder to cure such Default. In addition, Buyer shall, if reasonably requested by a Tax Equity Investor, provide a written consent providing such Tax Equity Investor with the right, but not the obligation, at any time, to pay any or all amounts due from Seller to Buyer hereunder, and to do any other act or thing required of Seller, in each case to cure any default of Seller under this Agreement in a manner that is consistent with the applicable terms and conditions of this Agreement, and to provide a customary estoppel certificate substantially in the form attached as Appendix O; provided that (a) the terms and conditions of any such consent, or any estoppel certificate, shall have no (and could not reasonably be expected to have any) adverse effect on Buyer’s rights under this Agreement, and (b) Buyer shall have no obligation to amend the terms and conditions of this Agreement. In no event will a Facility Lender or Tax Equity Investor have a cure period in addition to Seller’s cure period set forth in this Agreement, if any, except as set forth in any applicable Facility Lender Consent or an estoppel. Seller shall pay Buyer for the reasonable costs and expenses incurred by Buyer arising in connection with the negotiation of the Facility Lender Consent and any consent or estoppel prepared at the Tax Equity Investor’s request (including reasonable attorneys’ fees and expenses) as provided in Section 14.9. (e) Subject to the terms and conditions of this Agreement, Buyer may make a limited assignment in connection with a municipal prepayment transaction to any entity (“Limited Buyer Assignee”) that has an Investment Grade Credit Rating of all or a portion of Buyer’s rights
5.a
Packet Pg. 318
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
73 to receive certain Products (which shall not be for a retail sale) and Buyer’s obligations to make payments for such Product under this Agreement to the Seller (“Assigned Product”). The limited assignment shall not introduce, or purport to convey or otherwise allege, any right of Buyer or Limited Buyer Assignee to make any prepayment to Seller under the Agreement or to file or impose any lien on the Facility, or otherwise modify any provision of this Agreement, and shall be expressly subject to the Limited Buyer Assignee’s timely payment of amounts due under this Agreement with respect to the Assigned Product. Buyer shall pay Seller for any payments not timely made by Limited Buyer Assignee, and Buyer shall remain obligated to perform all of its obligations under this Agreement notwithstanding the limited assignment, including without limitation any credit-related requirements, and payment for all amounts due and owing under this Agreement, including the total gross amount due to Seller under each invoice. Any failure by the Limited Buyer Assignee to make payments to Seller when due hereunder shall be a Buyer Event of Default if not cured within the applicable cure period specified in this Agreement. Subject to the foregoing, Buyer may make such an assignment upon not less than thirty (30) days’ advance written notice by delivering to Seller a written request for Seller’s consent to such assignment and the proposed form of limited assignment agreement in form and substance consistent with this Agreement, subject to additional terms and conditions reasonably requested by Buyer which terms are approved by Seller, such Seller approval not to be unreasonably withheld, conditioned or delayed (and provided for avoidance of doubt, Seller shall not be required to agree to any terms or conditions which are reasonably expected to have an adverse effect on Seller or its Facility Lenders or are inconsistent with the terms of this Agreement). Notwithstanding anything to the contrary in connection with such limited assignment, if (1) the assignment, transfer or conveyance of the Assigned Product pursuant to such limited assignment, or (2) Seller’s performance of any obligation under the assignment agreement, including without limitation if Seller makes any change to the recipient of the WREGIS Certificates, fails to meet any requirements of this Agreement, then Seller shall not be deemed to be in breach of any obligation in this Agreement, including without limitation any representation or warranty herein. Limited Buyer Assignee and Buyer shall comply with all reasonable requests by Seller or any Facility Lender in connection with such limited assignment, including providing any requested acknowledgments with respect to any collateral assignment agreement.
(f) Buyer may, without the prior written consent of Seller, but upon not less than thirty (30) days’ advance written notice to Seller, assign this Agreement to a Qualified Buyer Assignee.
Section 14.8 Ambiguity. The Parties acknowledge that this Agreement was jointly prepared by them, by and through their respective legal counsel, and any uncertainty or ambiguity existing herein shall not be interpreted against either Party on the basis that the Party drafted the language, but otherwise shall be interpreted according to the application of the rules on interpretation of contracts.
Section 14.9 Attorneys’ Fees & Costs. Both Parties agree that in any action to enforce the terms of this Agreement that each Party shall be responsible for its own attorneys’ fees and costs. Each of the Parties to this Agreement was represented by its respective legal counsel during the negotiation and execution of this Agreement.
5.a
Packet Pg. 319
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
74 Section 14.10 Voluntary Execution. Both Parties acknowledge that they have read and fully understand the content and effect of this Agreement and that the provisions of this Agreement have been reviewed and approved by their respective counsel. The Parties further acknowledge that they have executed this Agreement voluntarily, subject only to the advice of their own counsel, and do not rely on any promise, inducement, representation or warranty that is not expressly stated herein.
Section 14.11 Entire Agreement; Amendments. This Agreement (including all Appendices and Exhibits) contains the entire understanding concerning the subject matter herein and supersedes and replaces any prior negotiations, discussions or agreements between the Parties, or any of them, concerning that subject matter, whether written or oral, except as expressly provided for herein. This is a fully integrated document. Each Party acknowledges that no other party, representative or agent, has made any promise, representation or warranty, express or implied, that is not expressly contained in this Agreement that induced the other Party to sign this document. This Agreement may be amended or modified only by an instrument in writing signed by each Party.
Section 14.12 Execution in Counterparts. This Agreement may be executed in counterparts and upon execution by each signatory, each executed counterpart shall have the same force and effect as an original instrument and as if all signatories had signed the same instrument.
Any signature page of this Agreement may be detached from any counterpart of this Agreement without impairing the legal effect of any signature thereon, and may be attached to another counterpart of this Agreement identical in form hereto by having attached to it one or more signature pages.
Section 14.13 Effect of Section Headings. Section headings appearing in this Agreement are inserted for convenience only and shall not be construed as interpretations of text.
Section 14.14 Waiver; Available Remedies. The failure of either Party to this Agreement to enforce or insist upon compliance with or strict performance of any of the terms or conditions hereof, or to take advantage of any of its rights hereunder, shall not constitute a waiver or relinquishment of any such terms, conditions or rights, but the same shall be and remain at all times in full force and effect. Except to the extent this Agreement expressly provides an exclusive remedy for a breach or as otherwise limited in this Agreement, nothing contained herein shall preclude either Party from seeking and obtaining any available remedies hereunder, including recovery of damages caused by the breach of this Agreement, or any other remedy given under this Agreement or now or hereafter existing in law or equity or otherwise. The rights granted herein are cumulative.
Section 14.15 Relationship of the Parties. This Agreement shall not be interpreted to create an association, joint venture or partnership between the Parties hereto or to impose any partnership obligation or liability upon either Party. Neither Party shall have any right, power or authority to enter into any agreement or undertaking for, or act on behalf of, or to act as an agent or representative of, the other Party.
Section 14.16 Third Party Beneficiaries. The provisions of this Agreement are solely for the benefit of the Parties, and through Buyer, the Participating Members. Nothing in this
5.a
Packet Pg. 320
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
75 Agreement, whether express or implied, shall be construed to give to, or be deemed to create in, any other Person, whether as a third party beneficiary of this Agreement or otherwise, any legal or equitable right, remedy or claim in respect of this Agreement or any covenant, condition, provision, duty, obligation or undertaking contained or established herein. This Agreement shall not be construed in any respect to be a contract in whole or in part for the benefit of any Person that is not a party hereto.
Section 14.17 Indemnification; Insurance; Limit of Liability. (a) Indemnification. Seller (the “Indemnifying Party”) agrees to defend, indemnify and hold harmless Buyer, its Participating Members, and all their respective directors, officers, agents, attorneys, employees and representatives (each an “Indemnified Party” and collectively, the “Indemnified Group”) from and against all third party claims, demands, losses, liabilities, penalties, and expenses, including reasonable attorneys’ and expert witness fees, for personal injury or death to Persons (including Seller’s employees and agents) and damage to the property of any third party (including Seller’s employees and agents, and any third-party’s interest (if any) in the Facility) to the extent arising out of, resulting from, or caused by the negligent or willful misconduct of the Indemnifying Party, its Affiliates, its directors, officers, employees or agents (collectively, “Indemnifiable Losses”). Nothing in this Section shall enlarge or relieve Seller or Buyer of any liability to the other for any breach of this Agreement. Neither Party shall be indemnified for its damages resulting from its sole negligence, intentional acts, or willful misconduct. These indemnity provisions shall not be construed to relieve any insurer of its obligations to pay claims consistent with the provisions of a valid insurance policy. (b) Insurance. Within thirty (30) days after the Subject Approvals Deadline and throughout the Agreement Term, Seller shall obtain and maintain the Insurance coverages listed in Appendix F.
(c) Limitation of Liability. EXCEPT TO THE EXTENT INCLUDED IN
THE LIQUIDATED DAMAGES, INDEMNIFICATION OBLIGATIONS RELATED TO
THIRD PARTY CLAIMS, OR OTHER SPECIFIC CHARGES EXPRESSLY PROVIDED FOR
HEREIN, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR
IN THE CASE OF SELLER TO THE INDEMNIFIED GROUP FOR SPECIAL, INCIDENTAL,
EXEMPLARY, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOST PROFITS
OR OTHER COSTS, BUSINESS INTERRUPTION DAMAGES RELATED TO OR ARISING OUT OF A PARTY’S PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT,
WHETHER BASED ON OR CLAIMED UNDER STATUTE, CONTRACT, TORT (INCLUDING SUCH PARTY’S OWN NEGLIGENCE) OR ANY OTHER THEORY OF LIABILITY AT LAW OR IN EQUITY.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THERE IS NO WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY AND ALL IMPLIED WARRANTIES ARE DISCLAIMED. THE PARTIES CONFIRM THAT THE
EXPRESS REMEDIES AND MEASURES OF DAMAGES PROVIDED IN THIS AGREEMENT SATISFY THE ESSENTIAL PURPOSES HEREOF. ALL LIMITATIONS OF
LIABILITY CONTAINED IN THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THOSE PERTAINING TO SELLER’S LIMITATION OF LIABILITY AND THE PARTIES’
5.a
Packet Pg. 321
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
76 WAIVER OF CONSEQUENTIAL DAMAGES, SHALL APPLY EVEN IF THE REMEDIES
FOR BREACH OF WARRANTY PROVIDED IN THIS AGREEMENT ARE DEEMED TO “FAIL OF THEIR ESSENTIAL PURPOSE” OR ARE OTHERWISE HELD TO BE INVALID OR UNENFORCEABLE.
FOR BREACH OF ANY PROVISION FOR WHICH AN EXPRESS AND EXCLUSIVE
REMEDY OR MEASURE OF DAMAGES IS PROVIDED, SUCH EXPRESS REMEDY OR
MEASURE OF DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY, THE OBLIGOR’S LIABILITY SHALL BE LIMITED AS SET FORTH IN SUCH PROVISION, AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED. IF NO
REMEDY OR MEASURE OF DAMAGES IS EXPRESSLY PROVIDED HEREIN, THE OBLIGOR’S LIABILITY SHALL BE LIMITED TO DIRECT DAMAGES ONLY.
TO THE EXTENT ANY DAMAGES REQUIRED TO BE PAID HEREUNDER ARE
LIQUIDATED, INCLUDING WITHOUT LIMITATION UNDER ARTICLE IX AND SECTIONS 13.2, 13.3 & 13.7, THE PARTIES ACKNOWLEDGE THAT THE DAMAGES ARE
DIFFICULT OR IMPOSSIBLE TO DETERMINE, THAT OTHERWISE OBTAINING AN
ADEQUATE REMEDY IS INCONVENIENT, AND THAT THE LIQUIDATED DAMAGES
CONSTITUTE A REASONABLE APPROXIMATION OF THE ANTICIPATED HARM OR LOSS. IT IS THE INTENT OF THE PARTIES THAT THE LIMITATIONS HEREIN IMPOSED
ON REMEDIES AND THE MEASURE OF DAMAGES BE WITHOUT REGARD TO THE
CAUSE OR CAUSES RELATED THERETO, INCLUDING THE NEGLIGENCE OF ANY
PARTY, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, OR ACTIVE OR PASSIVE. THE PARTIES HEREBY WAIVE ANY RIGHT TO CONTEST SUCH PAYMENTS AS AN UNREASONABLE PENALTY.
PRIOR TO THE COMMERCIAL OPERATION DATE, IN NO EVENT SHALL SELLER BE LIABLE TO BUYER IN EXCESS OF THE MAXIMUM PRE-COD LIABILITY.
Section 14.18 Severability. In the event any of the terms, covenants or conditions of this Agreement, or the application of any such terms, covenants or conditions, shall be held invalid, illegal or unenforceable by any court having jurisdiction, all other terms, covenants and conditions of this Agreement and their application not adversely affected thereby shall remain in force and effect, provided that the remaining valid and enforceable provisions materially retain the essence of the Parties’ original bargain.
Section 14.19 Confidentiality.
(a) Each Party agrees, and shall use reasonable efforts to cause its Affiliates, and its and their respective directors, officers, employees and representatives, as a condition to receiving confidential information hereunder, to keep confidential, except as required by law: (i) all documents, data, drawings, studies, projections, plans and other written information that relate to economic benefits to, or amounts payable by, either Party under this Agreement, and (ii) all documents that are clearly marked “Confidential” at the time a Party shares such information with the other Party (clauses (i) and (ii) above, “Confidential Information”). The provisions of this Section 14.19 shall survive and shall continue to be binding upon the Parties for a period of one (1) year following the date of termination or expiration of this Agreement. Notwithstanding the
5.a
Packet Pg. 322
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
77 foregoing, information shall not be considered Confidential Information if such information (i) is disclosed with the prior written consent of the originating Party, (ii) was in the public domain prior to disclosure or is or becomes publicly known or available other than through the action of the receiving Party in violation of this Agreement, (iii) was lawfully in a Party’s possession or acquired by a Party outside of this Agreement, which acquisition was not known by the receiving Party to be in breach of any confidentiality obligation, or (iv) is developed independently by a Party based solely on information that is not considered confidential under this Agreement. (b) Either Party may, without violating this Section 14.19, disclose matters that are made confidential by this Agreement:
(i) to its counsel, accountants, auditors, advisors, other professional consultants, credit rating agencies, actual or prospective, co-owners, investors, purchasers, lenders (including Facility Lenders), underwriters, contractors, suppliers, and others involved in construction, operation, and financing transactions and arrangements for a Party or Affiliates, in each case who have a valid business purpose and reasonable need to know such Confidential Information, provided each Party will use commercially reasonable efforts to keep Confidential Information confidential to the extent consistent with this Agreement and Requirements of Law.
Further, Buyer may disclose Confidential Information to its Participating Members; (ii) to governmental officials and parties involved in any proceeding in which either Party is seeking a permit, certificate, or other regulatory approval or order necessary or appropriate to carry out this Agreement;
(iii) to governmental officials or the public as required by any law, regulation, order, rule, ruling or other Requirement of Law, including laws or regulations requiring disclosure of financial information and information material to financial matters and filing of financial reports and responding to oral questions, discovery requests, subpoenas, civil investigations or similar processes; and
(iv) with respect to Buyer, to any member of Buyer from time to time, including in a public distribution of the agenda of Buyer or any Participating Member. (c) Notwithstanding the foregoing or any other provision of this Agreement, Seller acknowledges that Buyer is subject to disclosure as required by the California Public Records Act, Cal. Govt. Code §§ 6250 et seq. (“CPRA”) and the Ralph M. Brown Act, Cal. Govt.
Code §§ 54950 et seq. (“Brown Act”). Seller acknowledges that Buyer shall not be in breach of this Agreement or have any liability whatsoever under this Agreement or otherwise for any claims or causes of action whatsoever resulting from or arising out of Buyer copying or releasing to a third party any of the Confidential Information of Seller to the extent required under CPRA or Brown Act (such CPRA process in accordance with Section 14.19(e) below). (d) Notwithstanding the foregoing or any other provision of this Agreement, Buyer may record, register, deliver and file all such notices, statements, instruments and other documents as may be necessary or advisable to render fully valid, perfected and enforceable under all applicable law the credit support contemplated by this Agreement and the rights, Liens and priorities of Buyer with respect to such credit support.
5.a
Packet Pg. 323
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
78 (e) If a Party is requested or required, pursuant to any applicable law, regulation, order, rule, ruling or other Requirement of Law, discovery request, subpoena, civil investigation or similar process to disclose any of the Confidential Information, and if permitted by applicable law, such Party shall provide prompt written notice to the other Party of such request or requirement so that at such other Party’s expense, such other Party can seek a protective order or other appropriate remedy concerning such disclosure. If Buyer receives a CPRA request for Confidential Information of Seller, and Buyer or Buyer’s Authorized Representative determines that such Confidential Information is subject to disclosure under CPRA, then Buyer shall promptly notify Seller of the request and its intent to disclose the documents. Buyer, as required by CPRA, shall release such documents unless Seller timely obtains a court order prohibiting such release. If Seller, at its sole expense, chooses to seek a court order prohibiting the release of Confidential Information pursuant to a CPRA request, then Seller undertakes and agrees to defend, indemnify and hold harmless Buyer and the Indemnified Party from and against all suits, claims, and causes of action brought against Buyer or any Indemnified Party for Buyer’s refusal to disclose Confidential Information of Seller to any person making a request pursuant to CPRA. Seller’s indemnity obligations shall include, but are not limited to, all actual costs incurred by Buyer and any Indemnified Party, and specifically including costs of experts and consultants, as well as all damages or liability of any nature whatsoever arising out of any suits, claims, and causes of action brought against Buyer or any Indemnified Party, through and including any appellate proceedings.
Seller’s obligations to Buyer and all Indemnified Party under this indemnification provision shall be due and payable on a Monthly, on-going basis within thirty (30) days after each submission to Seller of Buyer’s invoices for all fees and costs incurred by Buyer and all Indemnified Party, as well as all damages or liability of any nature.
(f) Each Party acknowledges that any disclosure or misappropriation of Confidential Information by such Party in violation of this Agreement could cause the other Party or their Affiliates irreparable harm, the amount of which may be extremely difficult to estimate, thus making any remedy at law or in damages inadequate. Therefore with respect to the confidentiality obligations set forth in this Section 14.19 each Party agrees that the non-breaching Party shall have the right to apply to any court of competent jurisdiction for a restraining order or an injunction without the necessity of proving actual damages or providing a bond, restraining or enjoining any breach or threatened breach of this Agreement and for any other equitable relief that such non-breaching Party deems appropriate. This right shall be in addition to any other remedy available to the Parties in law or equity.
(g) Neither Party shall issue a press release to the media coincident with the approval of the project regarding the transactions contemplated by this Agreement unless both Parties have agreed upon the contents of any such press release, provided, for clarification purposes, nothing shall preclude Buyer from making public statements about the Agreement or the Facility, other than as may be limited or conditioned elsewhere in this Agreement, in furtherance of Buyer’s statutory governmental function consistent with the initial agreed project approval statement or as required by law.
Section 14.20 Mobile-Sierra. The Parties hereby stipulate and agree that this Agreement was entered into as a result of arm’s-length negotiations between the Parties. Further, the Parties believe that, to the extent the sale of Energy under this Agreement is subject to Sections 205 and 206 of the Federal Power Act, 16 U.S.C. Sections 824d and 824e, the rates, terms and conditions
5.a
Packet Pg. 324
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
79 of this Agreement are just and reasonable within the meanings of Sections 205 and 206 of the Federal Power Act, and that the rates, terms and conditions of this Agreement will remain so during the Agreement Term. Notwithstanding any provision of this Agreement, the Parties waive all rights to challenge the validity of this Agreement or whether it is just and reasonable for and with respect to the Agreement Term, under Sections 205 and 206 of the Federal Power Act, and to request the FERC to revise the terms and conditions and the rates or services specified in this Agreement, and hereby agree not to seek, nor support any third party in seeking, to prospectively or retroactively revise the rates, terms or conditions of this Agreement through application or complaint to FERC or any other state or federal agency, board, court or tribunal, related in any manner as to whether such rates, terms or conditions are just and reasonable or in the public interest under the Federal Power Act, absent prior written agreement of the Parties. The Parties also agree that, absent prior agreement in writing by the Parties to a proposed change, the standard of review for changes to any rate, charge, classification, term or condition of this Agreement proposed by a Party (to the extent that any provision of this Section is unenforceable or ineffective as to such Party), shall be the “public interest” application of the “just and reasonable” standard of review that requires FERC to find an “unequivocal public necessity” or “extraordinary circumstances where the public will be severely harmed” to modify a contract, as set forth in United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332 (1956) and Federal Power Commission v.
Sierra Pacific Power Co., 350 U.S. 348 (1956), and clarified by Morgan Stanley Capital Group, Inc. v. Public Util. Dist. No. 1 of Snohomish, 554 U.S. 527 at 550-51 (2008) and NRG Power Marketing, LLC v. Maine Public Utilities Comm’n, 558 U.S. 165 (2010). Changes proposed by a non-Party or FERC acting sua sponte shall be subject to the most stringent standard permissible under applicable Law.
Section 14.21 Taxpayer Identification Number (TIN). Each Party shall provide its taxpayer identification number to the other Party within one-hundred twenty (120) days of the Effective Date.
Section 14.22 Counterparts; Electronic Signatures. This Agreement may be executed in one or more counterparts, all of which taken together shall constitute one and the same instrument and each of which shall be deemed an original. The Parties may rely on electronic or scanned signatures as originals.
Section 14.23 Binding Effect. This Agreement shall inure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns.
Section 14.24 Ownership of Renewable Energy Incentives. Seller shall have all right, title and interest in and to all Renewable Energy Incentives. Buyer acknowledges that any Renewable Energy Incentives belong to Seller. If any Renewable Energy Incentives, or values representing the same, are initially credited or paid to Buyer, Buyer shall cause such Renewable Energy Incentives or values relating to same to be assigned or transferred to Seller without delay.
Buyer shall reasonably cooperate with Seller, at Seller’s sole expense, in Seller’s efforts to meet the requirements for any certification, registration, or reporting program relating to Renewable Energy Incentives.
[Remainder of Page Intentionally Left Blank]
5.a
Packet Pg. 325
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement Buyer and Seller were represented by legal counsel during the negotiation and execution of this Agreement and the Parties have executed this Agreement as of the dates set forth below, effective as of the Effective Date.
BUYER:
SOUTHERII CALIFO
ORITY
By:
Name:
Its:l't
Date:
lce President
Attest:
By: z9-r
Name: Daniel E Garcra
Its: Assistant
Date *
Approved as to Legal Form:
cltq.z4
By /-a
Name: Armando V. Arballo
Its: Assistant General Counsel
Date: q-q'e?
-Signature Page-
5.a
Packet Pg. 326
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement - SELLER:
GRACE ORCHARD SOLAR rlr, LLC
By:
Name:
Its:
Date:
s(q
t$st
R&vlur
0ompl#
-Signature Page-
5.a
Packet Pg. 327
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement -
Appendix A-1
APPENDIX A
TO POWER PURCHASE AGREEMENT
DATED AS OF [____________], 2024
BETWEEN
SOUTHERN CALIFORNIA PUBLIC POWER AUTHORITY
AND
GRACE ORCHARD SOLAR III, LLC
CONTRACT PRICE & COMPENSATION
Section 1. Contract Price. The Contract Price is $43.71 per MWh, which is: (i) subject to increase in an amount not-to-exceed $3.75 per MWh (for a total not-to-exceed amount of $47.46 per MWh) in accordance with the terms and conditions of Section 2.5(b); and (ii) subject to a reduction in accordance with the terms and conditions of Section 7.7(c).
Section 2. Delivered Energy. Commencing on the Commercial Operation Date, for each MWh of Facility Energy in each Settlement Period, Buyer shall pay Seller the Contract Price.
Section 3. Deemed Delivered Energy. Commencing on the Commercial Operation Date, for each Settlement Period, Buyer shall pay Seller the Contract Price plus the PTC Amount for each MWh of Deemed Delivered Energy.
Section 4. Excess Energy. Commencing on the Commercial Operation Date, if, at any point in any Contract Year, the amount of Facility Energy plus the amount of Deemed Delivered Energy exceeds one hundred fifteen percent (115%) up to one hundred twenty percent (120%) of the Annual Contract Quantity for such Contract Year, the price to be paid for that additional Facility Energy or Deemed Delivered Energy shall be equal to forty percent (40%) of the Contract Price; provided that if Seller delivers to Buyer Facility Energy plus the amount of Deemed Delivered Energy in excess of 120% of the Annual Contract Quantity in any Contract Year, such additional Facility Energy shall be twenty five percent (25%) of the Contract Price and there shall be no compensation for Deemed Delivered Energy above 120% of the Annual Contract Quantity in any Contract Year. For avoidance of doubt, Buyer shall not be responsible for paying the PTC Rate for any Deemed Delivered Energy above 115% of the Annual Contract Quantity for such Contract Year.
Section 5. Test Energy. For Test Energy delivered prior to Commercial Operation, Buyer shall pay Seller: (i) fifty percent (50%) of the Contract Price up to the first eight (8) months that Test Energy is produced; and (ii) twenty five percent (25%) of the Contract Price for any period following the initial eight (8) month period set forth in (i). During the Test Energy period prior to Commercial Operation, Buyer shall pay Seller for any Deemed Delivered Energy from a Compensable Curtailment at the Contract Price and the PTC Rate; provided that no compensation is owed if such curtailment is due to specific testing activities of Seller (including related to the CAISO’s new resource implementation process) or Buyer’s activities stemming from such specific testing activities (together, a “Seller Specific Testing Activity Curtailment”), which Seller Specific Testing Activity Curtailments for avoidance of doubt shall not be deemed to have occurred simply
5.a
Packet Pg. 328
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
Appendix A-2
because a Compensable Curtailment occurs during the period of Test Energy prior to Commercial Operation.
Section 6. Excess Settlement Interval MWh. Any Excess Settlement Interval MWh shall be dealt with as set forth in Section 6.1(e) of the Agreement.
Section 7. Tax Benefits. The Parties agree that neither the Contract Price nor the Test Energy Rate are subject to adjustment or amendment if Seller fails to receive any Tax Benefits, or if any Tax Benefits expire, are repealed or otherwise cease to apply to Seller or the Facility in whole or in part, or Seller or its investors are unable to benefit from any Tax Benefits. Seller shall bear all risks, financial and otherwise, throughout the Agreement Term, associated with Seller’s or the Facility’s eligibility to receive Tax Benefits or to qualify for accelerated depreciation for Seller’s accounting, reporting or Tax purposes. The obligations of the Parties hereunder, including those obligations set forth herein regarding the purchase and price for and Seller’s obligation to deliver Facility Energy and Product, shall be effective regardless of whether the sale of Facility Energy is eligible for, or receives Tax Benefits during the Agreement Term.
5.a
Packet Pg. 329
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
Appendix C-1
APPENDIX B
TO POWER PURCHASE AGREEMENT
DATED AS OF [____________], 2024
BETWEEN
SOUTHERN CALIFORNIA PUBLIC POWER AUTHORITY
AND
GRACE ORCHARD SOLAR III, LLC
FACILITY
1. Name of Facility: Grace Solar Facility
2. Site: Riverside County, California
The Site is or will be located at some or all of the following APNs: 821020007, 821020019, 821020020, 821020021, 821020022, 821020023, 821020024, 821020025, 821020026, 821020027, 821020028, 821020029, 821050004, 821050016, 821050017, 821050018, 821050019, 821050020, 821050021, 821050022, 821050023, 821050028, 821050029, 821060001, 821060002, 821060003, 821060006, 821080043, 821080044, 821080045, 821080046, 821080047, 821080050, 821090011, 821090012, 821090013, 821090014, 821090015, 821090016, 821090017, 821090018, 821100034, 818180011, 818180014, 818180015, 821020013, 821060007, 821080042, 821090006*
*Seller may update the foregoing description to reduce the size of the Site (but not to add any new parcels) up until Construction Start by Notice to Buyer without amendment of this Agreement.
3. Owner: Grace Orchard Solar III, LLC
4. Point of Interconnection: Colorado River Substation
5. Point of Delivery/PNode: Southern California Edison Colorado River Substation [SELLER TO PROVIDE PNODE AT LEAST SIXTY (60) DAYS PRIOR TO THE COMMERCIAL OPERATION DATE]
Balancing Authority Area: CAISO
6. Equipment:
(a) Type of Facility: Photovoltaic solar generation
(b) Technology: Horizontal Single Axis Tracking
(c) Contract Capacity: 170 MWac
7. Permits:
Permits Notes/Status/Estimated Dates as of Execution Date
5.a
Packet Pg. 330
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
Appendix C-2
Conditional Use Permit
(CUP) / Public Use
Permit (PUP) /
Development
Agreement (DA)
CUP No. 3684, PUP No. 916 and DA No. 86 approved by Riverside County in September 2017, to be amended to conform to revised Facility design. Expected Q3/Q4 2025
CEQA Clearance – EIR
Addendum
Final EIR certified by Riverside County in September 2017, for which Riverside County expected to prepare an addendum or supplement, as necessary, in connection with any further discretionary action. Expected Q3/Q4 2025
Construction/ Grading/
Stormwater Permit
Expected to begin Q4 2025
BLM Notice to Proceed Expected to be issued May 2026
NEPA Compliance BLM expected to prepare an Environmental Assessment to address NEPA compliance.
BLM Record of
Decision/FONSI
Expected to be issued Q3 2025
BLM Right-of-Way
Grant
ROW application submitted July 2023. ROW expected to be issued Q3/Q4 2025.
[SELLER TO PROVIDE MAP OF FACILITY AT LEAST SIXTY (60) DAYS PRIOR TO CONSTRUCTION START]
5.a
Packet Pg. 331
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
Appendix C-3
APPENDIX C
TO POWER PURCHASE AGREEMENT
DATED AS OF [____________], 2024
BETWEEN
SOUTHERN CALIFORNIA PUBLIC POWER AUTHORITY
AND
GRACE ORCHARD SOLAR III, LLC
ANNUAL CONTRACT QUANTITY
Contract Year Annual Contract Quantity,
MWh
Guaranteed
Generation, MWh
(80% of Annual
Contract Quantity)
1 500,766 400,612.81 2 499,582 399,665.52 3 496,789 397,431.18 4 493,915 395,131.97 5 490,961 392,768.52 6 487,922 390,337.49 7 484,796 387,836.72 8 481,579 385,263.26 9 478,270 382,616.09 10 474,879 379,903.59 11 471,413 377,130.23 12 467,865 374,292.35 13 464,230 371,383.72 14 460,503 368,402.14 15 456,685 365,347.63 16 452,772 362,217.97 17 448,776 359,020.98 18 444,719 355,775.24 19 440,621 352,496.77 20 436,497 349,197.60
5.a
Packet Pg. 332
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
Appendix D-1
APPENDIX D
TO POWER PURCHASE AGREEMENT
DATED AS OF [____________], 2024
BETWEEN
SOUTHERN CALIFORNIA PUBLIC POWER AUTHORITY
AND
GRACE ORCHARD SOLAR III, LLC
FORM OF ATTESTATION
Grace Orchard Solar III, LLC Environmental Attribute Attestation and Bill of Sale
Grace Orchard Solar III, LLC (“Seller”) hereby sells, transfers and delivers to Southern California Public Power Authority (“Buyer”) the Environmental Attributes and Environmental Attribute Reporting Rights associated with the generation from the Facility described below:
Facility name and location:
Fuel Type:
Capacity (MW): Operational Date:
As applicable: CEC Reg. no. ___ Energy Admin. ID no. ____ QF ID no. ___
Dates MWhs generated
________________ 20__ ___________
________________ 20__ ___________
________________ 20__ ___________
in the amount of one Environmental Attribute or its equivalent for each megawatt hour generated.
Seller further attests as follows:
i) the information provided herein is true and correct; ii) its sale to Buyer is its one and only sale of the Environmental Attributes and associated Environmental Attribute Reporting Rights referenced herein; iii) the Facility generated and delivered to the grid on behalf of Buyer the Energy in the amount indicated as undifferentiated Energy; and
iv) Seller owns the Facility, and each of the Environmental Attributes and Environmental Attribute Reporting Rights associated with the generation of the indicated Energy for delivery to the grid have been generated and sold by the Facility or generated from a facility qualified to provide Replacement Energy.
5.a
Packet Pg. 333
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
Appendix D-2
This serves as a bill of sale, transferring from Seller to Buyer all of Seller’s right, title and interest in and to the Environmental Attributes and Environmental Attribute Reporting Rights associated with the generation of the Energy for delivery on behalf of Buyer to the grid.
Contact Person/telephone: ____________________
5.a
Packet Pg. 334
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
Appendix E-1
APPENDIX E
TO POWER PURCHASE AGREEMENT
DATED AS OF [____________], 2024
BETWEEN
SOUTHERN CALIFORNIA PUBLIC POWER AUTHORITY
AND
GRACE ORCHARD SOLAR III, LLC
FORM OF LETTER OF CREDIT
IRREVOCABLE AND UNCONDITIONAL, STANDBY
LETTER OF CREDIT NO. ___________
Date: ____________
Amount:
USD[$XX,XXX,XXX]
Our ref.: ___________
Expiry Date: ___________
Beneficiary:
Southern California Public Power Authority
1160 Nicole Court
Glendora, California 91740
Ladies and Gentlemen:
By order of Grace Orchard Solar III, LLC, and for the account of [], hereby issue our Irrevocable Standby Letter of Credit No. (the ‘Letter of Credit’) in your favor in the amount of USD$XX,XXX,XXX (United States Dollars XX,XXX,XXX), effective immediately.
Funds under this Letter of Credit are available at sight (a) upon presentation to us at our office at our address above, of: (i) your written demand for payment containing the text of Exhibit I and (ii) your signed statement containing the text of Exhibit II (the “Documents”); or
(b) upon presentation to us of your Documents by facsimile at fax number (xxx) xxx- xxxx.
Upon presentation to us of your Documents in conformity with the foregoing, on the second succeeding Business Day after such presentation (unless such presentation occurs after 1:00 p.m., Eastern Time on the day of such presentation, in which event payment will be made on
5.a
Packet Pg. 335
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
Appendix E-2
the third succeeding Business Day), but without any other delay whatsoever, irrevocably and without reserve or condition, we will make payment to your order in the account at the bank designated by you in the demand in immediately available funds. Funds may be drawn under this Letter of Credit, from time to time, in one or more drawings, in amounts not exceeding in the aggregate the amount specified above.
It is a condition of this Letter of Credit that it shall be deemed automatically extended, without amendment, for additional periods of one year from the present and each future expiry date, unless at least 60 days prior to the then current expiry date we notify you by nationally recognized overnight courier, return receipt requested, that we elect not to consider this Letter of Credit so extended, in which case it will expire on the date specified in such notice.
We agree that if, on the expiration date of this Letter of Credit, the office specified above is not open for business by virtue of an interruption of the nature described in the “Uniform Customs and Practices for Documentary Credits (2007 Revision) of the International Chamber of Commerce Publication No. 600 (the “UCP600”) Article 36, this Letter of Credit will be duly honored if the specified Documents are presented by you within thirty (30) days after such office is reopened for business.
“Business Day” means a day other than a Saturday, Sunday or any other day on which banking institutions in the State of New York are authorized or required by law to close.
Provided that the presentation under this Letter of Credit is made on or prior to the Expiration Date and the applicable Documents as set forth above conform to the requirements of this Letter of Credit, payment hereunder shall be made regardless of: (a) any written or oral direction, request, notice or other communication now or hereafter received by us from Grace Orchard Solar III, LLC or any other person except you, including without limitation any communication regarding fraud, forgery, lack of authority or other defect not apparent on the face of the documents presented by you, but excluding solely a written order issued by a court of competent jurisdiction, which order is legally binding on us and specifically orders us not to make such payment; (b) the solvency, existence or condition, financial or other, of [NextEra Energy Capital Holdings, Inc.]. or any other person or property from whom or which we may be entitled to reimbursement for such payment; and (c) without limiting clause (b) above, whether we are in receipt of or expect to receive funds or other property as reimbursement in whole or in part for such payment.
We agree that the time set forth herein for payment of any demand(s) for payment is sufficient to enable us to examine such demand(s) and the related Documents referred to above with care so as to ascertain that on their face they appear to comply with the terms of this Letter of Credit, and that if such demand(s) and Documents on their face appear to so comply, failure to make any such payment within such time shall constitute dishonor of such demand(s).
The stated amount of this Letter of Credit may be increased or decreased by an amendment to this Letter of Credit in the form of Exhibit III. Any such amendment shall become effective only upon acceptance by your signature on a hard copy amendment.
We hereby engage with you that your demand(s) for payment in conformity with the terms of this Letter of Credit will be duly honored as set forth above. All fees and other costs associated with
5.a
Packet Pg. 336
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
Appendix E-3
the issuance of and any drawing(s) against this Letter of Credit shall be for the account of [NextEra Energy Capital Holdings, Inc.] All of the rights of the Beneficiary set forth above shall inure to the benefit of your successors by operation of law.
Except so far as otherwise expressly stated herein, this Letter of Credit is subject to the UCP600.
As to matters not governed by the UCP600, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Any litigation arising out of, or relating to this Letter of Credit, shall be brought in a State or Federal court in the County of New York, New York. The parties irrevocably agree to submit to the exclusive jurisdiction of such courts in the state of New York and waive any defense of forum non conveniens.
Please address all correspondence regarding this Letter of Credit to [], referring specifically to Issuer’s Letter of Credit No.. For telephone assistance, please contact Issuer’s Standby Letter of Credit Department at (xxx) xxx- xxxx and have this Letter of Credit available.
Yours faithfully,
[]
By
Title
5.a
Packet Pg. 337
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
Appendix E-4
EXHIBIT I
Demand for Payment
Re: Irrevocable Standby Letter of Credit No. Dated ____________ To Whom It May Concern:
Demand is hereby made upon you for payment to us of USD by deposit to our account no. at [insert name of bank]. This demand is made under, and is subject to and governed by, your Irrevocable Standby Letter of Credit No. dated _______________ in the amount of USD [$X] established by you in our favor for the account of [].
DATED: _________________________, 20__.
SOUTHERN CALIFORNIA PUBLIC POWER
AUTHORITY
By:
[_________________]
5.a
Packet Pg. 338
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
Appendix E-5
EXHIBIT II
Statement
Re: Your Irrevocable Standby Letter of Credit No. Dated ______________
Reference is made to your Irrevocable Standby Letter of Credit No. dated ____________ in the amount of USD[$X] established by you in our favor for the account of [].
We hereby certify to you that USD________________ is payable to us as provided in our agreement with Grace Orchard Solar III, LLC.
DATED: ______________,
SOUTHERN CALIFORNIA PUBLIC POWER
AUTHORITY
By:
[_________________]
5.a
Packet Pg. 339
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
Appendix E-6
EXHIBIT III
Amendment
Re: Irrevocable Standby Letter of Credit No. Dated _______________ Beneficiary:
Southern California Public Power Authority
1160 Nicole Court
Glendora, CA 91740
By order of:
To Whom It May Concern:
The above referenced Irrevocable Standby Letter of Credit is hereby amended as follows: by [increasing][decreasing] the stated amount by USD __________________ to a new stated amount of $ [and][by extending the Expiration Date to ______ from _______]. All other terms and conditions of the
Letter of Credit remain unchanged.
This amendment is effective only when accepted by Southern California Public Power Authority, which acceptance may only be valid by a signature of an authorized representative.
DATED: ______________
Yours faithfully,
By
Title
ACCEPTED
Southern California Public Power Authority
By
Title
Date
5.a
Packet Pg. 340
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
Appendix F-1
APPENDIX F
TO POWER PURCHASE AGREEMENT
DATED AS OF [____________], 2024
BETWEEN
SOUTHERN CALIFORNIA PUBLIC POWER AUTHORITY
AND
GRACE ORCHARD SOLAR III, LLC
INSURANCE
I. GENERAL REQUIREMENTS
Within thirty (30) days after the Subject Approvals Deadline (and with respect to the Builders’ Risk policy, no later than thirty (30) days prior to the start of construction of the Facility), Seller shall furnish Buyer evidence of coverage from insurers identified in this Appendix F. Such insurance shall be maintained by Seller at Seller’s sole cost and expense.
Such insurance shall not limit or qualify the liabilities and obligations of Seller assumed under this Agreement. Buyer shall not by reason of its inclusion under these policies incur liability to the insurance carrier for payment of premium for these policies.
Any insurance carried by Buyer which may be applicable shall be deemed to be excess insurance and Seller’s insurance is primary for all purposes despite any conflicting provision in Seller’s policies to the contrary.
Said evidence of insurance shall contain a provision that the policy cannot be canceled or reduced in coverage or amount without first giving thirty (30) days prior notice thereof (ten (10) days for non-payment of premium) to Southern California Public Power Authority, 1160 Nicole Court, Glendora, CA 91740.
Should any portion of the required insurance be on a “Claims Made” policy, Seller shall, at the policy expiration date following completion of work, provide evidence that the “Claims Made” policy has been renewed or replaced with the same limits, terms and conditions of the expiring policy, or that an extended discovery period has been purchased on the expiring policy at least for the contract under which the work was performed.
Seller shall be responsible for all major Subcontractors’ (those Subcontractors of all agreements entered into after the Effective Date and having a value in excess of $25,000) compliance with the insurance requirements set forth herein, and shall be responsible for ensuring that all other Subcontractors obtain and maintain, throughout the performance of any work, types of insurance with limits and terms that are normal and customary for the industry and types of services being provided.
5.a
Packet Pg. 341
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
Appendix F-2
II. SPECIFIC COVERAGES REQUIRED
A. Commercial Automobile Liability
Seller shall provide Commercial Automobile Liability insurance which shall include coverage for liability arising out of the use of owned, non-owned, and hired vehicles for performance of the work as required to be licensed under the California or any other applicable state vehicle code. The Commercial Automobile Liability insurance shall have not less than One Million Dollars ($1,000,000) combined single limit per occurrence and shall apply to all operations of Seller.
The Commercial Automobile Liability policy shall include each of Buyer and its members, officers, agents, and employees as additional insureds with Seller, and shall insure against liability for death, bodily injury, or property damage resulting from the performance of this Agreement.
B. Commercial General Liability
Seller shall provide Commercial General Liability insurance on an occurrence basis ISO GL form or equivalent with Blanket Contractual Liability, Independent Contractors, Broad Form Property Damage, Premises and Operations, Products and Completed Operations, Sudden and Accidental Pollution, Fire Legal Liability and Personal Injury coverages included. Sudden and Accidental Pollution shall provide coverage with limits of liability of not less than Seven Million Dollars ($7,000,000), and all such other insurance shall provide coverage with limits of liability not less than Seven Million Dollars ($7,000,000) combined single limit per occurrence and in the aggregate. The limits of liability are to be specific for this Agreement. Umbrella or Excess Liability coverages may be used to supplement primary coverages to meet the required limits.
Evidence of such coverage shall include Buyer as an additional insured, and shall provide for the following:
1. Include Buyer and its members, officers, agents, and employees as additional insureds for the activities and operations under this Agreement.
2. Severability-of-Interest or Cross-Liability Clause.
3. A description of the coverages included under the policy.
C. Excess Liability
Seller may use an Umbrella or Excess Liability Coverage to meet coverage limits specified in this Agreement. Such policy shall include, as appropriate, coverage for Commercial General Liability, Commercial Automobile Liability, Employer’s Liability, or other applicable insurance coverages.
D. Workers’ Compensation/Employer’s Liability Insurance
Seller shall provide Workers’ Compensation insurance covering all of Seller’s employees in accordance with the laws of any state in which the work is to be performed and including Employer’s Liability insurance and a Waiver of Subrogation in favor of Buyer. The limit for
5.a
Packet Pg. 342
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
Appendix F-3
Employer’s Liability coverage shall be not less than One Million Dollars ($1,000,000) each accident and shall be a separate policy if not included with Workers’ Compensation coverage.
Umbrella or Excess Liability coverages may be used to supplement primary coverages to meet the required limits. Workers’ Compensation/Employer’s Liability exposure may be self-insured provided that Buyer is furnished with a copy of the certificate issued by the state authorizing Seller to self-insure. Seller shall notify Buyer’s Risk Management Section by receipted delivery as soon as possible of the state withdrawing authority to self-insure.
E. Builders’ Risk
Prior to commencing Site construction activities, Seller, or Seller’s EPC Contractor, shall provide Builder’s Risk insurance, which shall be of the “all risk” type, shall be written in completed value form, and shall protect Seller, Southern California Public Power Authority, the Board of Directors, and Buyer’s members against risks of damage to buildings, structures, and materials and equipment that constitute part of the Facility, whether on site or in transit from any location worldwide. Outside of the United States; this transit insurance requirement may be satisfied by the purchase of a global marine specific policy, if applicable. The amount of such insurance shall be not less than the insurable value of the of the work at completion except for sublimits that are prudent with industry practice. Buyer shall be named additional insured on the policy as their interest may appear. The Builder’s Risk insurance shall provide for losses to be payable to Seller.
The policy shall contain a provision that in the event of payment for any loss under the coverage provided, the insurance company shall have no rights of recovery against Seller and the aforementioned named additional insured. The Builders’ Risk policy shall insure against all risks of direct physical loss or damage to property from any cause including testing, ensuing loss, commissioning, and, to the extent available in the insurance market on generally commercially reasonable terms, earthquake and flood, provided, that should Seller determine that either coverage is not available on generally commercially reasonable terms as aforesaid, Seller shall notify Buyer not less than thirty (30) days in advance of the date when such coverage will not, or will no longer, be available together with a description of Seller’s efforts to obtain such coverage and an explanation of the basis for Seller’s determination in reasonable detail. The policy shall be in full force and effect until the earlier of (1) the Commercial Operation Date or substantial completion date of the Facility, whichever completion date is the later or (2) the effective date of the Property All Risk Insurance referenced below.
F. Property All Risk Insurance
Seller shall procure and maintain or cause to be procured and maintained an All Risk Physical Damage policy to insure the full replacement value of the property located at Facility as described in this Agreement. The policy shall include coverage for boiler and machinery breakdown, earthquake, flood, expediting expense, extra expense, Business Interruption, ensuing loss from faulty workmanship, faulty materials, and/or faulty design. Earthquake and flood may be sublimited with limits that are within industry standard. This policy shall incept as of the Commercial Operation Date. This policy shall be obtained and placed in full force and effect prior to the expiration of the Builder’s Risk Policy. This policy shall have the same insured and all losses shall be payable in the same manner, as provided for the Builders’ Risk Policy in Paragraph II.E.
5.a
Packet Pg. 343
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
Appendix G-1
APPENDIX G
FORM OF INSTALLED CAPACITY CERTIFICATE
This certification (“Certification”) of Installed Capacity is delivered by _________, an Independent Engineer, licensed in the State of California, to SOUTHERN CALIFORNIA PUBLIC POWER AUTHORITY (“Buyer”) in accordance with the terms of that certain Power Purchase Agreement dated __________ (“Agreement”) by and between [SELLER ENTITY] and Buyer. All capitalized terms used in this Certification but not otherwise defined herein shall have the respective meanings assigned to such terms in the Agreement.
I hereby certify the following:
The performance test for the Facility, substantially in the form of Appendix N (confirmed by the Independent Engineer), demonstrated peak electrical output of __ MW AC at the Delivery Point, as adjusted for ambient conditions on the date of the performance test (“Installed Capacity”).
[LICENSED PROFESSIONAL ENGINEER]
By:
Its:
Date:
5.a
Packet Pg. 344
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
Appendix H-1
APPENDIX H
TO POWER PURCHASE AGREEMENT
DATED AS OF [____________], 2024
BETWEEN
SOUTHERN CALIFORNIA PUBLIC POWER AUTHORITY
AND
GRACE ORCHARD SOLAR III, LLC
FORM OF REPLACEMENT PRODUCT FACILITIES
A. Replacement Product Facilities List:
B. Form for Additional Facilities (if any):
Unit Name:
RPS ID:
CAISO Resource ID:
WREGIS ID:
Facility Location: County
Facility Location: State
Facility Location: Country
Facility Location: Longitude
Facility Location: Latitude
Balancing Authority Interconnection:
Facility Fuel Type:
5.a
Packet Pg. 345
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
Appendix I-1
APPENDIX I
TO POWER PURCHASE AGREEMENT
DATED AS OF [____________], 2024
BETWEEN
SOUTHERN CALIFORNIA PUBLIC POWER AUTHORITY
AND
GRACE ORCHARD SOLAR III, LLC
MILESTONE SCHEDULE
*Designates a Key Milestone
No. Milestone Date Milestone
Description
Daily Delay
Damages
Security
Deposit at
Milestone
Achievement
1. Twenty (20) days
after the Effective
Date
Seller has delivered
the Development
Security
$100/kW of
Contract
Capacity (i.e.,
a total of
$17,000,000)
2. Thirty (30) days after
the Subject
Approvals Deadline
Seller has delivered
all evidence of
required Insurance
other than Builder’s
Risk
3. On or before
Construction Start
Date
Seller has achieved
the Site Control
Milestone
4. Completed Seller has executed
and delivered to
Buyer a copy of the
Generator
Interconnection
Agreement with
respect to the CAISO
Point of Delivery
5. July 1, 2026 Guaranteed
Construction Start
Date *
For each day of
delay after such
date that is
unexcused by a
Development Cure
Period, a daily
amount equal to the
Development
5.a
Packet Pg. 346
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
Appendix I-2
No. Milestone Date Milestone
Description
Daily Delay
Damages
Security
Deposit at
Milestone
Achievement
Security divided by
one hundred eighty
(180), applied for
up to 180 days of
delay (which, for
avoidance of doubt,
is $94,444.44 per
day for each such
day of delay up to
180 days)
6. On or before the
Commercial
Operation Date
Seller has delivered
the Operation
Security
$110/kW of
Installed
Capacity (i.e.,
if Installed
Capacity is
170 MW, then
this figure will
be
$18,700,000)
7. December 1, 2027 Expected
Commercial
Operation Date
8. June 1, 2028 Guaranteed
Commercial
Operation Date*
For each day of
delay after such
date that is
unexcused by a
Development Cure
Period, a daily
amount equal to the
Development
Security divided by
one hundred eighty
(180), applied for
up to 180 days of
delay (which, for
avoidance of doubt,
is $94,444.44 per
day for each such
day of delay up to
180 days)
5.a
Packet Pg. 347
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
Appendix I-3
No. Milestone Date Milestone
Description
Daily Delay
Damages
Security
Deposit at
Milestone
Achievement
9. November 28, 2028 Commercial
Operation Date
Deadline
5.a
Packet Pg. 348
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
Appendix J-1
APPENDIX J
TO POWER PURCHASE AGREEMENT
DATED AS OF [____________], 2024
BETWEEN
SOUTHERN CALIFORNIA PUBLIC POWER AUTHORITY
AND
GRACE ORCHARD SOLAR III, LLC
BUYER AND SELLER BILLING, NOTIFICATION AND SCHEDULING
CONTACT INFORMATION
1. Authorized Representative. Correspondence pursuant to Section 14.1 shall be transmitted to the following addresses:
1.1 If to Buyer:
Southern California Public Power Authority
1160 Nicole Court
Glendora, CA 91740
Telephone: 626-793-9364
Facsimile: 626-704-9461
Email: [email protected]
1.2 If to Seller:
Grace Orchard Solar III, LLC
Street: 700 Universe Blvd.
City: Juno Beach, FL 33408
Attn: Business Management
Phone: 561-691-7723 (Office)
561-301-4685 (Mobile)
Email: DL-NEXTERA-WESTINTERNATIONALREGION@ nexteraenergy.com and
[email protected]
and
[email protected]
2. Billings and payments pursuant to Section 6.1 and Appendix A shall be transmitted to the following addresses:
5.a
Packet Pg. 349
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
Appendix J-2
2.1 If Billing to Buyer:
Southern California Public Power Authority
c/o Executive Director
1160 Nicole Court
Glendora, CA 91740
Attention: Accounts Payable
Email: [email protected]; [email protected]
2.2 If Payment to Buyer:
Southern California Public Power Authority
c/o Executive Director
1160 Nicole Court
Glendora, CA 91740
Attention: Finance and Accounting
Email: [email protected]
2.3 If Billing or Payment to Seller:
Attn: Business Management
Phone: 561-691-7723 (Office)
561-301-4685 (Mobile)
E-mail: [email protected] and
DL-NEXTERA-WEST-INTERNATIONALREGION@ nexteraenergy.com
3. All notices (other than scheduling notices) required under the Agreement shall be sent pursuant to Section 14.2, to the address specified below:
If to Buyer:
Southern California Public Power Authority
1160 Nicole Court
Glendora, CA 91740
Telephone: 626-793-9364
Facsimile: 626-793-9461
Email: [email protected]
If to Seller:
Grace Orchard Solar III, LLC
Street: 700 Universe Blvd.
City: Juno Beach, FL 33408
Attn: Business Management
Phone: 561-691-7723 (Office)
5.a
Packet Pg. 350
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
Appendix J-3
561-301-4685 (Mobile)
Email: [email protected] and
[email protected]
and
[email protected]
and
[email protected]
5.a
Packet Pg. 351
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
Appendix K-1
APPENDIX K
TO POWER PURCHASE AGREEMENT
DATED AS OF [____________], 2024
BETWEEN
SOUTHERN CALIFORNIA PUBLIC POWER AUTHORITY
AND
GRACE ORCHARD SOLAR III, LLC
FORM OF CONSTRUCTION START DATE CERTIFICATION
This certification (“Certification”) of the Construction Start Date is delivered by [_________________] (“Seller”) to the SOUTHERN CALIFORNIA PUBLIC POWER AUTHORITY (“Buyer”) in accordance with the terms of that certain Power Purchase Agreement dated __________ (“Agreement”) by and between Seller and Buyer. All capitalized terms used in this Certification but not otherwise defined herein shall have the respective meanings assigned to such terms in the Agreement.
Seller hereby certifies and represents to Buyer the following:
1. the Construction Start (as defined in the Agreement) has occurred, and a copy of the notice to proceed that Seller issued to its primary engineering, procurement, and construction contractor as part of Construction Start is attached hereto;
2. the Construction Start Date occurred on _____________ (the “Construction Start Date”); and
3. the precise Site on which the Facility is located is:
_________________________________________ (such description shall amend the description of the Site in Appendix B of the Agreement).
IN WITNESS WHEREOF, the undersigned has executed this Certification on behalf of Seller as of the ___ day of ________.
[_____________________________]
By:
Its:
Date:
5.a
Packet Pg. 352
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
Appendix L-1
APPENDIX L
TO POWER PURCHASE AGREEMENT
DATED AS OF [____________], 2024
BETWEEN
SOUTHERN CALIFORNIA PUBLIC POWER AUTHORITY
AND
GRACE ORCHARD SOLAR III, LLC
FORM OF COMMERCIAL OPERATION DATE CERTIFICATION
INDEPENDENT ENGINEER CERTIFICATE
In accordance with the terms of that certain Power Purchase Agreement dated as of ___________________, 2024 (“Agreement”) by and between Southern California Public Power Authority (“Buyer”) and Grace Orchard Solar III, LLC (“Seller”), in order determine achievement of Commercial Operation of the Facility, I, ______________, an Independent Engineer, licensed in the State of California, certify the following regarding the Facility’s ability to deliver Facility Energy:
(a) All capitalized terms used in this Independent Engineer Certificate but not otherwise defined herein shall have the respective meanings assigned to such terms in the Agreement.
(b) The Facility is operational, interconnected, and synchronized with the Transmission System at or above the Installed Capacity. (c) Seller has installed equipment for the Facility with a nameplate capacity of no less than ninety-five percent (95%) of the Original Contract Capacity. (d) Seller has commissioned all Facility equipment in accordance with its respective manufacturer’s specifications.
(e) The Facility’s testing included a performance test, substantially in the form of Appendix N to the Agreement, demonstrating peak electrical output of no less than ninety-five percent (95%) of the Original Contract Capacity for the Facility at the Delivery Point, adjusted for ambient conditions on the date of the Facility testing, and such peak electrical output, as adjusted, was [peak output in MW].
(f) Authorization to parallel the Facility was obtained by the Transmission Provider on [DATE].
(g) The Transmission Provider has provided documentation supporting release for the Facility’s Commercial Operation at or above the Installed Capacity on [DATE]. (h) The CAISO has provided notification supporting Commercial Operation, in accordance with the CAISO Tariff on [DATE].
5.a
Packet Pg. 353
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
Appendix L-2
Signed,
___________________________
Name:
Title:
Date:
5.a
Packet Pg. 354
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
[Signature Page to Consent – Power Purchase Agreement]
Appendix M
APPENDIX M
TO POWER PURCHASE AGREEMENT
DATED AS OF [____________], 2024
BETWEEN
SOUTHERN CALIFORNIA PUBLIC POWER AUTHORITY
AND
GRACE ORCHARD SOLAR III, LLC
FORM OF LENDER (DEBT) CONSENT
CONSENT AND AGREEMENT
([NAME OF CONTRACTING PARTY])
([NAME OF ASSIGNED AGREEMENT])
This CONSENT AND AGREEMENT (this “Consent”), dated as of ___________, 20[ ], is executed by and among [NAME OF CONTRACTING PARTY], a [legal form of Contracting Party] organized under the laws of the State of [________] (the “Contracting Party”), [__________], a [___________] (the “Project Owner”), and [_____________], as collateral agent (in such capacity, together with its successors and permitted assigns, the “Collateral Agent”) for various financial institutions named from time to time as Lenders under the Credit Agreement (as defined below) and any other parties (or any of their agents) who hold any other secured indebtedness permitted to be incurred under the Credit Agreement (the Collateral Agent and all such parties collectively, the “Secured Parties”).
A. The Project Owner owns, operates and maintains [_________________] (the “Project”).
B. The Contracting Party and the Project Owner have entered into the agreement specified in Schedule I hereto (as further amended, restated, supplemented or otherwise modified from time to time in accordance with the terms thereof and hereof, the “Assigned Agreement”).
C. The Borrower, the Project Owner, the other affiliates of the Borrower as Guarantors, various financial institutions named therein from time to time as Lenders,[_________________] , as the Administrative Agent and Collateral Agent, have entered into a Credit Agreement, dated as of [________________](as amended, modified or supplemented from time to time, the “Credit Agreement”), providing for the extension of the credit facilities described therein.
D. As security for the payment and performance by the Project Owner of its obligations under the Credit Agreement and the other Financing Documents (as defined below) and for other obligations owing to the Secured Parties, the Project Owner has collaterally assigned all of its right, title and interest in, to and under, and granted a security interest in, the Assigned Agreement to the Collateral Agent pursuant to the Assignment and Security
5.a
Packet Pg. 355
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
[Signature Page to Consent – Power Purchase Agreement]
Appendix M
Agreement, dated as of [_____________________] between the Project Owner and the Collateral Agent (as amended, restated, supplemented or otherwise modified from time to time in accordance with the terms thereof, the "Security Agreement", and, together with the Credit Agreement and any other financing documents relating to the issuance of the Notes, the “Financing Documents”).
E. It is a requirement under the Credit Agreement that the Project Owner cause the Contracting Party to execute and deliver this Consent.
NOW, THEREFORE as an inducement for Lenders to make the Loans, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, and intending to be legally bound, the parties hereto hereby agree as follows:
1. Consent to Assignment. The Contracting Party hereby acknowledges and consents to the pledge and assignment of all right, title and interest of the Project Owner in, to and under (but, unless otherwise provided in Section 4 and 5 of this Consent, not its obligations, liabilities or duties with respect to) the Assigned Agreement by the Project Owner to the Collateral Agent pursuant to the Security Agreement (collectively, the “Collateral”).
2. Representations and Warranties.
(a) No Amendments. The Contracting Party represents and warrants that [Except as described in Schedule I hereto,] there are no amendments, modifications or supplements (whether by waiver, consent or otherwise) by Buyer, or to Buyer’s knowledge, by Seller, to the Assigned Agreement.
(b) No Previous Assignments. The Contracting Party affirms that it has no knowledge of any assignment relating to the right, title and interest of the Project Owner in, to and under the Assigned Agreement other than the pledge and assignment to the Collateral Agent referred to in Section 1 above.
(c) No Termination Event: No Disputes. The Contracting Party represents and warrants that after giving effect to the pledge and assignment referred to in Section 1, and after giving effect to the consent to such pledge and assignment by the Contracting Party, to the knowledge of Contracting Party, there exists no event or condition (a “Termination Event”) that would, either immediately or with the giving of notice, or both, entitle the Contracting Party to terminate the Assigned Agreement or suspend the performance of its obligations under the Assigned Agreement. [Except as set forth on Schedule III hereto,] there are no unresolved disputes between Contracting Party and Project Owner under the Assigned Agreement. All amounts due under the Assigned Agreement as of the date hereof have been paid in full [, except as set forth on Schedule III hereto].
(d) Financing Documents. Collateral Agent represents and warrants that it has been instructed by the relevant Secured Parties to enter into this Consent, and Project Owner represents and warrants that it is duly authorized to enter into this Consent. The Collateral Agent and the Project Owner acknowledge and agree that, except as expressly provided in this Consent, the
5.a
Packet Pg. 356
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
[Signature Page to Consent – Power Purchase Agreement]
Appendix M
Contracting Party’s rights and remedies under the Assigned Agreement continue to be and shall remain in full force and effect in accordance with their terms, and notwithstanding anything to the contrary in the Financing Documents (or any related agreements or documents to which the Contracting Party is not a party), shall not conflict with the applicable terms and conditions of this Agreement and no other amendments, waivers or consents with respect to Contracting Party’s rights and remedies under the Assigned Agreement may be construed or implied.
3. Right to Cure.
(a) From and after the date hereof and unless and until the Contracting Party shall have received written notice from the Collateral Agent that the liens under the Financing Documents have been released in full, the Collateral Agent shall have the right, but not the obligation, following an event of Default by the Project Owner under the Assigned Agreement, to pay all sums due under the Assigned Agreement by the Project Owner and to perform any other act, duty or obligation required of the Project Owner thereunder as described in Section 3(c) below; provided, that no such payment or performance shall be construed as an assumption by the Collateral Agent or any other Secured Party of any covenants, agreements or obligations of the Project Owner under or in respect of the Assigned Agreement. (b) The Contracting Party agrees that it will not (i) terminate the Assigned Agreement (other than pursuant to Section __ of the Assigned Agreement) for Default by the Project Owner or any other Termination Event that gives Contracting Party the right to terminate the Assigned Agreement (each, a “Project Owner Default”) or (ii) suspend the performance of any of its obligations under the Assigned Agreement for Project Owner Default without first giving the Collateral Agent notice and opportunity to cure as provided below. The Contracting Party further agrees that it will not assign any obligation under the Assigned Agreement inconsistent with the terms of the Assigned Agreement without the prior consent of [the Collateral Agent, acting at the direction of the Required Lenders], which [consent][direction] shall not be unreasonably withheld, delayed or conditioned.
(c) If a Termination Event shall occur (other than a termination pursuant to Section __ of the Assigned Agreement) pursuant to a Project Owner Default, and the Contracting Party shall then be entitled to and shall desire to terminate the Assigned Agreement or suspend the performance of any of its obligations under the Assigned Agreement, the Contracting Party shall, prior to exercising such remedies or taking any other action with respect to such Termination Event, give written notice to the Collateral Agent of such Termination Event. Collateral Agent will have the right, but not the obligation, to cure a Termination Event on behalf of Project Owner, only if Collateral Agent sends a written notice to Contracting Party before the later of (i) the expiration of any cure period under this Agreement, and (ii) ten (10) Business Days after Collateral Agent’s receipt of notice of such Termination Event from Contracting Party, indicating Collateral Agent’s intention to cure. If the Collateral Agent elects to exercise its right to cure as herein provided, it shall have a period of 30 days after receipt by it of notice from the Contracting Party referred to in the preceding sentence in which to cure the Termination Event specified in such notice if such Termination Event consists of a payment default, or if such Termination Event is an event other than a failure to pay amounts due and owing by the Project Owner (a “Non-monetary Event”) the Collateral Agent shall have a period of ninety (90) days after receipt by it of notice from the Contracting Party referred to in the preceding sentence in which to cure the Termination
5.a
Packet Pg. 357
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
[Signature Page to Consent – Power Purchase Agreement]
Appendix M
Event so long as the Collateral Agent has promptly commenced and is diligently pursuing appropriate action to cure such Termination Event; provided, however, that (x) if possession of the Project is necessary to cure such Non-monetary Event and the Collateral Agent has commenced foreclosure proceedings, the Collateral Agent will be allowed a reasonable time to complete such proceedings, and (y) if the Collateral Agent is prohibited from curing any such Non-monetary Event by any process, stay or injunction issued by any governmental authority or pursuant to any bankruptcy or insolvency proceeding or other similar proceeding involving the Project Owner, then the time periods specified herein for curing a Termination Event shall be extended for the period of such prohibition; provided, further, that in the event of items (x) or (y), such time period shall not exceed one hundred eighty (180) day after receipt by it of notice from the Contracting Party referred to in the preceding sentence.
(d) Any curing of or attempt to cure any Termination Event shall not be construed as an assumption by the Collateral Agent or the other Secured Parties of any covenants, agreements or obligations of the Project Owner under or in respect of the Assigned Agreement. (e) Following a Termination Event due to the Project Owner under the Assigned Agreement, the Contracting Party may require the Collateral Agent, if the Collateral Agent has provided the notice set forth in subsection (c) above, to provide to Contracting Party a report concerning:
(i) The status of efforts by the Secured Parties to develop a plan to cure the Termination Event;
(ii) Impediments to the cure plan or its development;
(iii) If a cure plan has been adopted, the status of the cure plan’s implementation (including any modifications to the plan as well as the expected timeframe within which any cure is expected to be implemented); and
(iv) Any other information which Contracting Party may reasonably require related to the development, implementation and timetable of the cure plan.
Unless the Termination Event has been cured, Collateral Agent must provide the report to Contracting Party within twenty (20) Business Days after Notice from Contracting Party requesting the report. Contracting Party will have no further right to require the report with respect to a particular Termination Event after that Termination Event has been cured.
4. Replacement Agreements. Notwithstanding any provision in the Assigned Agreement to the contrary, in the event the Assigned Agreement is rejected or otherwise terminated as a result of any bankruptcy, insolvency, reorganization or similar proceedings affecting the Project Owner, at the Collateral Agent’s request, the Contracting Party will for a reasonable period not to exceed one hundred eighty (180) days enter into a new agreement with the Collateral Agent or the Collateral Agent’s designee for the remainder of the originally scheduled term of the Assigned Agreement, effective as of the date of such rejection, with the same covenants, agreements, terms, provisions and
5.a
Packet Pg. 358
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
[Signature Page to Consent – Power Purchase Agreement]
Appendix M
limitations as are contained in the Assigned Agreement; provided that on or before the date of such new agreement, all conditions (i)-(iv) listed within Section 5 are satisfied.
5. Substitute Owner. The Contracting Party acknowledges that in connection with the exercise of remedies following a default under the Financing Documents, the Collateral Agent may (but shall not be obligated to) assume, or cause any purchaser at any foreclosure sale or any assignee or transferee under any instrument of assignment or transfer in lieu of foreclosure to assume, all of the interests, rights and obligations of the Project Owner thereafter arising under the Assigned Agreement. If the interest of the Project Owner in the Assigned Agreement shall be assumed, sold or transferred as provided above, the assuming party shall directly or indirectly, on or before the date of such assumption: (i) cure any and all Defaults under the Assigned Agreement (to the extent capable of cure, including by performance or the payment of money damages) and be, or maintain (or cause to maintain), a Qualified Operator for the Facility; (ii) pay the Contracting Party any and all sums due and payable to Contracting Party prior to any such assumption, sale or disposition, including but not limited to any and all damages owed by Project Owner to Contracting Party; (iii) execute and deliver to Contracting Party a written assumption in which such assuming party (aa) expressly assumes all of Project Owner’s rights and obligations under the Assigned Agreement, (bb) expressly agrees to be bound by the terms of the Assigned Agreement to the same extent Project Owner is thereunder, and (cc) agree it is subject to Contracting Party’s rights and defenses under the Assigned Agreement and applicable law; and (iv) be a Permitted Transferee under the Assigned Agreement.
6. Payments. The Contracting Party shall make all payments due to the Project Owner under the Assigned Agreement directly into the account specified on Schedule II hereto, or to such other person or account as shall be specified from time to time by the Collateral Agent to the Contracting Party in writing. Project Owner acknowledges and consents to Contracting Party making such payments directly into the account specified on Schedule II hereto. All parties (including the Project Owner) hereto agree that each payment by the Contracting Party as specified in the preceding sentence of amounts due to the Project Owner from the Contracting Party under the Assigned Agreement shall satisfy the Contracting Party’s corresponding payment obligation under the Assigned Agreement.
7. No Amendments. The Contracting Party acknowledges that the Financing Documents restrict the right of the Project Owner to amend or modify the Assigned Agreement, or to waive or provide consents with respect to waiver of certain provisions of the Assigned Agreement, unless certain conditions specified in the Financing Documents are met. The Contracting Party shall not, without the prior written consent of [the Collateral Agent, acting at the direction of the Required Lenders], which [consent][direction] shall not be unreasonably withheld, delayed, or conditioned, amend or modify the Assigned Agreement in any material respect, or accept any waiver or consent with respect to any material provision of the Assigned Agreement, unless the Contracting Party has received from the Project Owner a copy of a certificate delivered by the Project Owner to the Collateral Agent to the effect that such amendment, modification, waiver or consent has been made in accordance with the terms and conditions of the Financing Documents, which certificate may in certain circumstances require the prior written consent of the Collateral Agent thereto.
5.a
Packet Pg. 359
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
[Signature Page to Consent – Power Purchase Agreement]
Appendix M
8. Additional Provisions. [To be specified if necessary in a mutually agreeable manner to clarify the Assigned Agreement.]
9. Notices. Notice to any party hereto shall be in writing and shall be deemed to be delivered on the earlier of: (a) the date of personal delivery, (b) postage prepaid, registered or certified mail, return receipt requested, or sent by express courier, in each case addressed to such party at the address indicated below (or at such other address as such party may have theretofore specified by written notice delivered in accordance herewith), upon delivery or refusal to accept delivery, or (c) if transmitted by facsimile, the date when sent and facsimile confirmation is received; provided that any facsimile communication shall be followed promptly by a hard copy original thereof by express courier:
The Collateral Agent: [________________________]
[ ]
Attn: [ ]
Telephone No.: [ ]
Facsimile No.: [ ]
The Project Owner:
The Contracting Party:
10. Successors and Assigns. This Consent shall be binding upon and shall inure to the benefit of the successors and assigns of the Contracting Party, and shall inure to the benefit of the Collateral Agent, the other Secured Parties, the Project Owner and their respective successors, transferees and assigns.
11. Counterparts. This Consent may be executed in one or more counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument.
12. Governing Law. This Consent shall be governed by, interpreted and enforced in accordance with the laws of the State of California, without regard to conflict of law principles.
5.a
Packet Pg. 360
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
[Signature Page to Consent – Power Purchase Agreement]
Appendix M
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized officers to execute and deliver this Consent as of the date first written above. [NAME OF CONTRACTING PARTY]
By:
Name:
Title:
[________________________]
as Collateral Agent
By:
Name:
Title:
Acknowledged and Agreed:
[_____________________________]
By:
Name:
Title:
5.a
Packet Pg. 361
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
[Signature Page to Consent – Power Purchase Agreement]
Appendix M
Schedule I
Assigned Agreement
5.a
Packet Pg. 362
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
[Signature Page to Consent – Power Purchase Agreement]
Appendix M
Schedule II
Payment Instructions
(Section 6)
All payments due to the Project Owner pursuant to the Assigned Agreement shall be made to [INSERT REVENUE ACCOUNT INFORMATION].
5.a
Packet Pg. 363
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
Appendix M-1
[Schedule III]
[Amounts Due and Unpaid under the Assigned Agreement
(Section 2(c))]]
5.a
Packet Pg. 364
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
Appendix M-2
APPENDIX N
TO POWER PURCHASE AGREEMENT
DATED AS OF [____________], 2024
BETWEEN
SOUTHERN CALIFORNIA PUBLIC POWER AUTHORITY
AND
GRACE ORCHARD SOLAR III, LLC
PERFORMANCE TEST
Solar Energy Center PV
Capacity Test Procedure
Prepared by NextEra Energy Resources xx/xx/2022
Procedure preparer to edit blue text to make specific for the project.
5.a
Packet Pg. 365
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement xxxxxxxxxxxxxxxxxxxxxxx PV Capacity Test Procedure │ Page 2 of 12
Revision History
Revision
Number Description of Change Date
A Draft xx/xx/2021
0 Execution Version xx/xx/2022
Table of Contents
1 Scope & Purpose ....................................................................................................................................... 4 2 Equipment ................................................................................................................................................. 5 3 Pre-Test Meeting, Notifications & Check .................................................................................................. 7 4 Calculation Method .................................................................................................................................. 8 5 Data Exclusions ....................................................................................................................................... 11 6 Capacity Test Execution ............................................................................................................................ 1 8 Capacity Test Report ................................................................................................................................. 2 9 Reference Documents............................................................................................................................... 2
5.a
Packet Pg. 366
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement xxxxxxxxxxxxxxxxxxxxxxx PV Capacity Test Procedure │ Page 3 of 12
List of Acronyms
Acronym Description
AC Alternating Current
DAS Data Acquisition System
DC Direct Current
MET Meteorology (MET Station)
MST Module Surface Temperature (aka TBOM)
MW Megawatt
NEER NextEra Energy Resources “NextEra”
PF Power Factor
POA Plane of Array
PPA Power Purchase Agreement
PPC Power Plant Controller
RM Reference Module
RTD Resistive Temperature Device
SCADA Supervisory Control and Data Acquisition
STC Standard Test Conditions
W Watt
5.a
Packet Pg. 367
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement xxxxxxxxxxxxxxxxxxxxxxx PV Capacity Test Procedure │ Page 4 of 12
1 Scope & Purpose
This document defines the Capacity Test procedure for xxxxxxx Solar. It is intended to serve as a guide for performing the Capacity Test and may be subject to change.
The purpose of the Capacity Test is to determine the Tested Capacity of the PV Array at Standard Test Conditions (STC) as measured at the Revenue-Quality Meter at the Solar Collection Substation. The test is performed for a minimum of 3 consecutive days and is considered complete when at least 300 Valid Data Points have been obtained and at least 3 days have passed. Depending on weather conditions more than 3 days may be needed.
The test is deemed successful if the Tested Capacity is equal to or greater than the Guaranteed Tested Capacity shown in Table 1 below.
Guaranteed Tested Capacity
xxx MWAC
Table 1 – Array Capacity Value Per PPA
Note 1: A day is defined as continuous hours between Sunrise and Sunset.
5.a
Packet Pg. 368
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement xxxxxxxxxxxxxxxxxxxxxxx PV Capacity Test Procedure │ Page 5 of 12
2 Equipment
Table 2 describes the location and quantity of the Measurement Devices used for the test. NextEra will submit the calibration certificates with the Capacity Test Report. Please refer to the calibration certificates for details regarding an instrument’s range and accuracy/uncertainty.
Table 2 - Test Measurement Devices
Test Measurement Devices
Measurement Manufacturer/Model Qty Location
POA Irradiance
POA Pyranometer
Hukseflux SR30
3 Tracker @ MET #1
(INVxxxxx)
Tracker @ MET #2
(INVxxxxx)
Tracker @ MET #3
(INVxxxxx)
POA Irradiance POA Reference Cells
Atonometrics RC18 3
Tracker @ MET #1
(INVxxxxx)
Tracker @ MET #2
(INVxxxxx)
Tracker @ MET #3
(INVxxxxx)
MST (Met Stations)
“Back-Of-Module
Temperature”
RTD (PT1000 Class A PRT)
Campbell Scientific CS240
6 Tracker @ MET #1
(INVxxxxx)
Tracker @ MET #2
(INVxxxxx)
Tracker @ MET #3
(INVxxxxx)
POA Irradiance POA Reference Cell
IMT Solar Si-RS485 TC 13
(Qty 1 per 13 Array Locations)
INVxxxxx, INVxxxxx
INVxxxxx, INVxxxxx
INVxxxxx, INVxxxxx
INVxxxxx, INVxxxxx
INVxxxxx, INVxxxxx
INVxxxxx, INVxxxxx,
INVxxxxx
5.a
Packet Pg. 369
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement xxxxxxxxxxxxxxxxxxxxxxx PV Capacity Test Procedure │ Page 6 of 12
RPOA Irradiance
(Reflected for
Bifacial Modules)
RPOA Reference Cell
IMT Solar Si-RS485 TC 13
(Qty 1 per 13 Array Locations)
INVxxxxx, INVxxxxx
INVxxxxx, INVxxxxx
INVxxxxx, INVxxxxx
INVxxxxx, INVxxxxx
INVxxxxx, INVxxxxx
INVxxxxx, INVxxxxx,
INVxxxxx
MST (Array)
“Back-Of-Module
Temperature”
RTD (PT1000 Class A PRT)
Omega SA1-RTD
39 (Qty 3 per 13 Array Locations)
INVxxxxx, INVxxxxx
INVxxxxx, INVxxxxx
INVxxxxx, INVxxxxx
INVxxxxx, INVxxxxx
INVxxxxx, INVxxxxx
INVxxxxx, INVxxxxx,
INVxxxxx
AC Power
Schneider Electric Power Logic,
ION8650 Revenue-Grade Meter
(M-161-1)
1 NEER Solar Collection
Substation
5.a
Packet Pg. 370
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement xxxxxxxxxxxxxxxxxxxxxxx PV Capacity Test Procedure │ Page 7 of 12
3 Pre-Test Meeting, Notifications & Check
3.1 Pre-Test Meeting
Notification will be provided 10 days prior to testing and a pre-test meeting may be held between relevant representatives from NextEra and Off-Taker Entities. If a meeting occurs, notes of the meeting will be taken by NextEra and submitted to the attendees.
3.2 Pre-functional checks
Pre-functional checks will be performed for all equipment and the corresponding functional check sheets will be reviewed by NextEra prior to the start of Performance Testing. Any functional issues that occur during Capacity Testing will be entered into the Commissioning Log by a NextEra representative and will be referenced in the Capacity Test Report. Capacity Testing will be performed when the following conditions are satisfied:
• Weather conditions required to support collection of appropriate range and quantity of test data
• Utility grid voltage is stable and within ±5% of design voltage • There is grid connectivity at each inverter such that a Capacity Test can be accomplished under load
• The site is substantially complete and the systems are in automatic operation.
3.3 Data Acquisition
Prior to the start of the Capacity Test, NextEra will ensure that data points are being recorded by the historian in, at a minimum, 1 minute samples.
5.a
Packet Pg. 371
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement xxxxxxxxxxxxxxxxxxxxxxx PV Capacity Test Procedure │ Page 8 of 12
4 Calculation Method
The method to calculate capacity is described as follows. This method will be used to determine both daily capacity (an estimate of the Tested Capacity) as well as the overall Tested Capacity of the Plant.
1. At a minimum, the PV plant AC power output, Reference Module irradiance levels, and module surface temperature measurements are collected and recorded.
2. Reference Module irradiance measurements are then averaged; module surface temperature measurements are also averaged.
3. Ideally the plant will operate at power factor of 1.0 during the test however the Transmission Owner or the System Operator may require otherwise for grid support. The Plant AC power output measurement, PM, is corrected to a power factor of 1.0 according to the following equation:
P1PF
= PM × PFSTC
PFM
P1PF = AC Power corrected to power factor of 1.0
PM = measured AC power output at the Revenue Meter
PFM = measured power factor at the Revenue Meter
PFSTC = power factor at standard test conditions (1.0pf)
4. Power factor-corrected AC power output, P1PF, is corrected to 25 °C according to the following equation:
PSTC
P1PF = AC Power corrected to 1.0pf
PSTC = AC Power corrected to 25°C
= P1PF
1 + Ct(TM — 25°C)
Ct = module power temperature coefficient (-0.xxx% /°C, Weighted Average) TM = mean module surface temperature (°C)
5. A plot of PSTC vs. mean Reference Module irradiance is created as shown in Figure 1.
6. A linear fit is then performed for all Valid Data Points (shown in BLUE) while all other data points (shown in RED) are excluded from the regression. These RED data points represent discrete times in the data set where one or more event is present as defined in Section 5 Table 3 of this procedure. The coefficient of determination (R2) for the capacity regression shall be at least 0.92. The linear fit yields an equation of the following form:
y = N ∗ x + b y = PSTC power (temperature corrected)
N = slope of the line
x = mean Reference Module irradiance (W/m2)
5.a
Packet Pg. 372
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement xxxxxxxxxxxxxxxxxxxxxxx PV Capacity Test Procedure │ Page 9 of 12
b = y intercept
5.a
Packet Pg. 373
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement xxxxxxxxxxxxxxxxxxxxxxx PV Capacity Test Procedure │ Page 10 of 12
Note: A Valid Data Point is defined as an instantaneous, 1-minute sample of plant data which has not been excluded according the guidelines in Section 5.
7. The Tested Capacity is determined by evaluating the equation at 1,000 W/m2:
Tested Capacity = y(1000)
Figure 1 – Example linear fit to Temperature-Corrected Power vs. POA Irradiance
5.a
Packet Pg. 374
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement xxxxxxxxxxxxxxxxxxxxxxx PV Capacity Test Procedure │ Page 11 of 12
5 Data Exclusions
Data will be excluded from the linear fit if and when any of the following events in Table 3 occur. Any point not excluded is considered to be a Valid Data Point.
Table 3 - Data Exclusion Events
Event Definition
Low Irradiance
Mean Reference Module irradiance is less than 200 W/m2
High Irradiance
Mean Reference Module irradiance is greater than 1200 W/m2
Inverter(s) Offline At least one inverter is offline or otherwise producing minimal power relative to the other inverters such that inverter generation is unable to reach nameplate capacity for site.
Grid Interruption
The Fault State of one or more inverters indicates a Grid Failure, or the Utility grid voltage is more than 5% different from the design voltage. The previous five minutes of data will be excluded the event of a Grid Interruption.
Negative Power Flow The power meter records a net negative power output (power is flowing to the Plant)
Inverter Clipping At least one inverter has reached the AC power set point OR at least one inverter is commanded to less than 100% output by the PPC.
Row-to-Row Shading
Direct beam row-to-row shading as confirmed by visual inspection Erratic Irradiance Erratic irradiance is observed
Snow or Frost
From visual inspection, there is snow or frost on the modules or critical sensors
Irradiance Sensor Failure
There are less than X Reference Modules reading correctly (50% of installed quantity and round up)
MST Sensor Failure
There are less than XX module surface temperature sensors reading correctly (50% of installed quantity and round up)
SCADA/DAS Failure
There is a system-wide failure to collect critical data, including: irradiance, MST and energy meter AC power. The previous five minutes of data will be excluded the event of a Grid Interruption.
5.a
Packet Pg. 375
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement xxxxxxxxxxxxxxxxxxxxxxx PV Capacity Test Procedure │ Page 12 of 12
5.a
Packet Pg. 376
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
Appendix N-1
6 Capacity Test Execution
6.1 Daily Capacity Test
A capacity value for each calendar day of the Capacity Test period will be calculated according to the procedure outlined in Section 4, using data points subjected to the exclusions described in Section 5.
For each calendar day of the test, the NextEra Test Manager will do the following:
• Confirm all inverters start up at approximately the same time • Ensure that data is recorded in 1 minute intervals
• Review the Daily Alarm Log and other non-conformance items and ensure that they do not affect the test results
6.2 Tested Capacity
The Tested Capacity of the PV Power Plant will be determined using all Valid Data Points collected over the Capacity Test period. The Tested Capacity value will be calculated according to the procedure outlined in Section 4, using data points subjected to the exclusions described in Section 5. This value will be compared to Guaranteed Tested Capacity shown in Section 1, Table 1 to determine pass/fail.
6.3 Site Specific Test Configuration (Optional)
Site Pre-Test Assumptions:
1. Xxxx
2. Xxxx
3. Xxxx
Site Testing Configuration:
1. Xxxx
2. Xxxx
•
•
•
•
•
•
•
•
5.a
Packet Pg. 377
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
Appendix N-2
7 Capacity Test Report
Following the conclusion of the Capacity Test, NextEra will issue a Capacity Test Report within five (5) business days of the successful completion of the Capacity Test to all relevant parties. The report will include the following:
• Executive summary of testing (e.g., Tested Capacity value, R2 value, Daily Capacity Values)
• Instrument calibration certificates
• Test data
• Field notes including non-conformance events (See “Daily Log”)
• Capacity calculations
• Conclusions
NextEra will provide the raw test data (consisting of both Valid Data Points and excluded values) and instrument calibration certificates to relevant parties as a separate attachment. This procedure will be appended to the submitted report.
8 Reference Documents
• SCADA Design Drawings – xxxxxxxxxxxxxxxxxxxxxx
• Substation Functional Single Line Diagram – xxxxxxxxxxxxxxxxxxxx
5.a
Packet Pg. 378
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
Appendix O-1
APPENDIX O
TO POWER PURCHASE AGREEMENT
DATED AS OF [____________], 2024
BETWEEN
SOUTHERN CALIFORNIA PUBLIC POWER AUTHORITY
AND
GRACE ORCHARD SOLAR III, LLC
FORM OF ESTOPPEL FROM BUYER
ESTOPPEL CERTIFICATE
(PPA)
This ESTOPPEL CERTIFICATE (this “Estoppel Certificate”), dated as of ________ ___, 20__, is executed by Southern California Public Power Authority (“Buyer”) for the benefit of ______ (“Lender”).
RECITALS
A. Buyer and Grace Orchard Solar III, LLC, a Delaware limited liability company (the “Project Company”) are parties to that certain Power Purchase Agreement, dated as of ______________, 2024 (the “Power Purchase Agreement”), in connection with the _______ solar project (“Solar Project”).
B. Pursuant to that certain [describe Lender financing agreement].
C. Pursuant to Section [__] of the [Lender financing agreement], the [Lenders] have required that this Estoppel Certificate be delivered as a condition precedent to the consummation of the transactions described therein.
NOW, THEREFORE, in consideration of the foregoing recitals, Buyer hereby certifies, agrees and acknowledges as follows:
1. No Default with respect to Buyer, nor, to the knowledge of Buyer, with respect to the Project Company, has occurred under the Power Purchase Agreement, and there are no Defaults presently existing (or which would exist after giving of notice) that would allow the Project Company or, to the knowledge of Buyer, Buyer to terminate the Power Purchase Agreement.
2. There exists no event or condition that would, either immediately or with the giving of notice, or both, entitle either the Project Company or, to the knowledge of Buyer, Buyer to suspend the performance of its obligations under the Power Purchase Agreement.
3. Each representation or warranty made or given by Buyer in Section [__] of
5.a
Packet Pg. 379
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
Appendix O-2
the Power Purchase Agreement is complete, true and correct.
4. As of the date hereof, (i) the Power Purchase Agreement is in full force and effect and has not been assigned [except as permitted under the Power Purchase Agreement as set for the Schedule __ of this Estoppel Certificate], amended, supplemented or modified by Buyer, or to Buyer’s knowledge, by Seller, (ii) there are no pending or threatened material disputes or legal proceedings between Buyer and the Project Company, (iii) there is no pending or, to the knowledge of Buyer, threatened action or proceeding against Buyer before any court, tribunal, governmental authority or arbitrator which purports to affect the legality, validity or enforceability of the Power Purchase Agreement, (iv) Buyer is not aware of any event, act, circumstance or condition constituting an event of Force Majeure under the Power Purchase Agreement, and (v) to Buyer’s knowledge, the Project Company owes no indemnity payments or other amounts to Buyer under the Power Purchase Agreement.
5. The execution, delivery and performance by Buyer of this Estoppel Certificate have been duly authorized by all necessary action on the part of Buyer and does not require any approval or consent of any other person or entity and does not violate any provision of any law, regulation, order, judgment, injunction or breach any agreement presently in effect with respect to or binding on Buyer.
6. Buyer agrees that any notices required to be delivered to Seller under Section [__] of the Power Purchase Agreement, including notices of an [Event of Default], shall be delivered by Buyer to each of the [Lenders] at their respective notice addresses set forth on Exhibit A hereto. Buyer further agrees that the [Lenders] shall have the right (but not the obligation) to cure the defaults listed in any notice of default in accordance with Section [__] of the Power Purchase Agreement within a cure period commencing on the later of (i) the same date that the Seller’s cure period expires under the Power Purchase Agreement or (ii) the date that the [Lenders] receive such notice that lists the default or defaults of the Seller under the Power Purchase Agreement and thereafter continuing for (i) thirty (30) days, in the case of payment defaults and (ii) ninety (90) days in the case of defaults consisting of an event other than a failure to pay amounts due and owing (a “Non-Monetary Default”) the Seller so long as [Lenders] have promptly commenced and is diligently pursuing appropriate action to cure such Non-Monetary Default.
7. [Mutually agreeable additional provisions to be included if necessary to clarify the Power Purchase Agreement.]
8. This Estoppel Certificate shall be governed by the laws of the State of California, without regard to principles of conflict of law.
5.a
Packet Pg. 380
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
Appendix O-2
[signature page follows]
5.a
Packet Pg. 381
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
Appendix O-3
IN WITNESS WHEREOF, Buyer has caused this Estoppel Certificate to be duly executed by its authorized representative as of the date first set forth above.
SOUTHERN CALIFORNIA PUBLIC
POWER AUTHORITY
By:
Name:
Title:
5.a
Packet Pg. 382
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
Appendix O-4
Exhibit A
to
Estoppel Certificate (PPA)
dated __________, 20__
by SCPPA for the benefit of _______________
PPA
5.a
Packet Pg. 383
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
Appendix P
APPENDIX P
TO POWER PURCHASE AGREEMENT
DATED AS OF [____________], 2024
BETWEEN
SOUTHERN CALIFORNIA PUBLIC POWER AUTHORITY
AND
GRACE ORCHARD SOLAR III, LLC
FORM OF MONTHLY REPORT
1. Month Year
Facility name and location:
Fuel Type:
Capacity (MW): Operational Date:
2. Summary Contract Year-to-date performance with respect to MWh of generation on an actual vs. expected basis during subject month with respect to the Facility.
3. Summary of non-Buyer-caused curtailments during subject month with respect to the Facility.
4. Summary of maintenance and repair actions during subject month with respect to the Facility.
5.a
Packet Pg. 384
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
Appendix P
APPENDIX R
TO POWER PURCHASE AGREEMENT
DATED AS OF [____________], 2024
BETWEEN
SOUTHERN CALIFORNIA PUBLIC POWER AUTHORITY
AND
GRACE ORCHARD SOLAR III, LLC
ORGANIZATIONAL CHART
5.a
Packet Pg. 385
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
Appendix P
5.a
Packet Pg. 386
Attachment: Renewable Power Sales Agreement between Southern California Public Power Authority and the City of Colton (4672 : Agreement
23152.04000\8346093.1
1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
21 22
23 24
25 26
27 28
RESOLUTION NO. R-109-24
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF COLTON, AUTHORIZING THE CITY MANAGER TO
EXECUTE AND DELIVER THE GRACE ORCHARD
SOLAR PROJECT POWER SALES AGREEMENT AND
APPROVING THE ENERGY AND RENEWABLE
ENERGY CREDITS TO BE PURCHASED PURSUANT TO
THE GRANCE ORCHARD SOLAR PROJECT POWER
SALES AGREEMENT
WHEREAS; Southern California Public Power Authority (the “ Authority”) has approved a Power Purchase Agreement between the Authority and Grace Orchard Solar III, LLC, for 170 megawatts (MW) output of the Grace Solar Orchard Project (Grace); and
WHEREAS, the City Council of the City of Colton (City) has authorized entering into the Grace Orchard Solar Project Power Sales Agreement (the “Power Sales Agreement”) between the City and the Authority for 20 MW; and
WHEREAS, under the Power Sales Agreement the City will be entitled to a 20 MW of energy and renewable attributes in the Grace Orchard Solar Project , a solar generating facility located in Riverside County, California; and
WHEREAS under the Power Sales Agreement, the City will receive a specified percentage of energy and renewable energy credits in the Grace Orchard Solar Project to which the City is entitled (the “Participant Facility Output Share”).
NOW, THEREFORE BE IT RESOLVED, DETERMINED, AND ORDERED BY THE THE CITY COUNCIL OF THE CITY OF COLTON, AS FOLLOWS:
.
1. The City Manager of the City of Colton is authorized to execute and deliver the Power Sales Agreement, with such changes, insertions and omissions as shall be approved by the official executing the Power Sales Agreement (such approval to be conclusively evidenced by such execution), and the City Clerk is hereby authorized to attest to such signature.
2. The Facility Share for the City to be set forth in the executed Power Sales Agreement shall not exceed 20 MW.
3. The City Manager of the City of Colton is hereby authorized to execute and deliver any and all other documents and instruments and to do and cause to be done any and
5.b
Packet Pg. 387
Attachment: Resolution No. R-109-24 (4672 : Agreement - SCPPA)
23152.04000\8346093.1
1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
21 22
23 24
25 26
27 28
all acts and things necessary o r advisable for carrying out the transactions contemplated by this Resolution, for the benefit of the City and the other participants in the Grace Solar Orchard Project.
PASSED, APPROVED AND ADOPTED THIS 15TH DAY OF OCTOBER 2024.
_____________________________________
FRANK J. NAVARRO
Mayor
ATTEST:
STEPHANIE M. VARGAS, CMC, CPMC
Chief Deputy City Clerk
5.b
Packet Pg. 388
Attachment: Resolution No. R-109-24 (4672 : Agreement - SCPPA)
ITEM NO. 6
STAFF REPORT
DATE: OCTOBER 15, 2024
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: BILL SMITH, CITY MANAGER
PREPARED BY: VICTOR ORTIZ, ASSISTANT DIRECTOR OF PUBLIC WORKS AND
ENGINEERING
SUBJECT: REJECT ALL BIDS FOR THE LA LOMA RESERVOIR PROJECT.
RECOMMENDED ACTION
Staff recommends that the City Council take the following action:
Reject all bids for 3.0 MG La Loma Reservoir and provide direction to staff to modify the project and re-advertise for bids.
BACKGROUND
Construction of a new 3.0 MG water reservoir is proposed to meet a portion of the City’s anticipated water requirements over the next ten to twenty years. The proposed project shall alleviate operations by increasing the storage and the efficiency during its operations an d peak demand.
On October 4, 2022 , the City awarded a contract to Krieger and Stewart Engineering Incorporated for the preparation of the engineering study, environmental documents, engineering services and design for the Engineering Design and Construc tion Services for La Loma Reservoir Project (“Project”). The construction plans and specifications were completed in March 2024.
ISSUES/ANALYSIS
In accordance with Colton Municipal Code (CMC) Section 3.08.090, a request for Notice Inviting Formal Bids w as published in The Press Enterprise on March 3, 2024, and March 8, 2024. The following bids were received on May 16, 2024, for the Project:
6 Packet Pg. 389
Staff Report to the Mayor and City Council
Bid Rejection - La Loma Reservoir Project
October 15, 2024
1 Empire Equipment Services Inc. $ 7,154,246.81 2 Paso Robles Tank Inc. $ 7,769,000.00
The contracts for competitively bid public projects must be awarded to the lowest responsible bidder. As shown above, Empire Equipment Services Inc of Riverside, California, submitted the lowest base bid and is the apparent low bidder. However, on May 20, 2024, City staff received a written bid protest from the second lowest bidder, Paso Robles Tank Inc . The bid protest claimed that the apparent lowest bidders, Empire Equipment Services Inc did not provide the sub-contractors needed and the re quired similar projects experience as required on the Notice of Inviting Bids and project specifications requirements.
Staff contacted Empire Equipment Services Inc to provide clarification on their experience and proposed sub -contractors for evaluation. After considering all information including the bid protest, City attorney and staff recommends that the City Council reject all bids received. The City Council may, in its discretion, reject all bids per Public Contract Code §20166.
Staff further reco mmends that City Council authorize staff to re -package the project bid documents and re -solicit bids for construction. Staff will work with the project engineering design consultant, Krieger and Stewart Incorporated, to administer re-bid and further refine plans and specifications to eliminate any ambiguities and to ensure concise bid documents.
FISCAL IMPACTS
There is no direct fiscal impact for the recommended action. Current staffing resources will be utilized to refine the bid package and re-bid the project. Appropriations for the 3.0 MG La Loma Reservoir Project are available in the FY2024-25 adopted budget in Water Fund Reservoir Capital Improvement Account #521-8100-8104-3890-0000-000.
ALTERNATIVES
1. Provide alternative direction to staff.
6 Packet Pg. 390
ITEM NO. 7
STAFF REPORT
DATE: OCTOBER 15, 2024
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: BILL SMITH, CITY MANAGER
PREPARED BY: VICTOR ORTIZ, ASSISTANT DIRECTOR OF PUBLIC WORKS AND
ENGINEERING
SUBJECT: APPROVE 2ND AMENDMENT TO CONTRACT WITH NEW IMAGE
COMMERCIAL FLOORING FOR DEVELOPMENT SERVICES
FLOORING PROJECT.
RECOMMENDED ACTION
Staff recommends that the City Council take the following action:
1. Authorize an increase to the current Maintenance Services Agreement with New Image Commercial Flooring by $49,978.00.
2. Authorize the City Manager to execute the Second Amendment to the Maintenance Services Agreement with New Image Commercial Flooring and increase the contract total amount not to exceed $92,989.30.
BACKGROUND
On March 11, 2024, t he City of Colton entered into a Maintenance Services Agreement with New Image Commercial Flooring to replace the flooring in the Human Resources and Community Development offices in the amount of $13,576.30 per the recommendation of the Building Maintenance Supervisor.
On May 28, 2024, the City Manager of the City of Colton authorized the First Amendment to the Maintenance Services Agreement to include flooring replacement in the Finance and Electric Departments in the amount of $29,435.00 for a contract total of $43,011.30.
ISSUES/ANALYSIS
7 Packet Pg. 391
Staff Report to the Mayor and City Council
Contract Amendment - New Image Flooring
October 15, 2024
Upon further assessment by the Building Maintenance Supervisor of other City buildings, it was determined that additional offices need flooring replacement. These offices include the City Manager, City Clerk, Mayor/Co uncil, Electric Sub -Station, Library, and Public Works Department. Staff seek exception to bidding process for these additional works per Colton Municipal Code Section 3.08.140(E) and add as a change order instead to the on -going flooring replacement proje ct. Per Colton Municipal Code Section 3.08.140(E), Purpose of Bidding is Otherwise Accomplished. When the City Manager determines that it is in the best interest of the City and its administrative operations to dispense with public bidding for Non -Public P rojects under this chapter. Prior City Council concurrence with the City Manager's determination shall be required for Non-Public Project purchases over one hundred thousand dollars.
FISCAL IMPACTS
The contract total amount including this 2 nd Amendment is not to exceed $ 92,989.30. Sufficient appropriations for this 2nd Amendment to the Maintenance Services Agreement is available in Building Maintenance Account No. 605-6150-6211-4950-0000-000.
ALTERNATIVES
1. Provide alternative direction to staff.
ATTACHMENT
1. Exhibit A - 1st Amendment
2. Exhibit B - 2nd Amendment - Revised
3. Exhibit C - Quotes Revised
7 Packet Pg. 392
7.a
Packet Pg. 393
Attachment: Exhibit A - 1st Amendment (4714 : Contract Amendment - New Image Flooring)
7.a
Packet Pg. 394
Attachment: Exhibit A - 1st Amendment (4714 : Contract Amendment - New Image Flooring)
7.a
Packet Pg. 395
Attachment: Exhibit A - 1st Amendment (4714 : Contract Amendment - New Image Flooring)
7.a
Packet Pg. 396
Attachment: Exhibit A - 1st Amendment (4714 : Contract Amendment - New Image Flooring)
7.a
Packet Pg. 397
Attachment: Exhibit A - 1st Amendment (4714 : Contract Amendment - New Image Flooring)
23152.06000\32380237.2 (BB&K: 10-19)
SECOND AMENDMENT TO
MAINTENANCE SERVICES AGREEMENT
BETWEEN THE CITY OF COLTON
AND
NEW IMAGE COMMERCIAL FLOORING
1. PARTIES AND DATE.
This Second Amendment to the Maintenance Services Agreement (“ Second Amendment”) is made and entered into this 15th day of October, 2024 by and between the City of Colton (“City”) and New Image Commercial Flooring (“Contractor”). City and Contractor are sometimes individually referred to as “Party” and collectively as “Parties” in this Second Amendment.
2. RECITALS.
2.1 Agreement. City and Contractor entered into that certain Maintenance Services Agreement dated March 11, 2024 (“Agreement”), whereby Contractor agreed to provide flooring replacement services for the Finance Department, C ustomer Service Department, Electric Department, and City Manager’s Office.
2.2 Amendment Purpose. City and Contractor desire to amend the Agreement for the second time to increase compensation by $49,978.00.
2.3 Amendment Authority. This Second Amendment is authorized pursuant to Section 3.5.9 of the Agreement.
3. TERMS.
3.1 Compensation. Section 3.3.1 of the Agreement is hereby deleted in its entirety and replaced with the following:
"Contractor shall receive compensation, including
authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "C" attached hereto and incorporated herein by reference. The total compensation shall not exceed Ninety-Two Thousand Nine Hundred Ei ghty Nine Dollars with Thirty Cents ($92,989.30) for Fiscal Year 202 4, without written approval of the City of Colton. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement. "
“Exhibit C is hereby deleted in its entirety and replaced with Exhibit “ C” attached hereto and incorporated herein by reference.”
7.b
Packet Pg. 398
Attachment: Exhibit B - 2nd Amendment - Revised (4714 : Contract Amendment - New Image Flooring) 2 23152.06000\32380237.2 (BB&K: 10-19)
3.2 Continuing Effect of Agreement. Except as amended by this Second Amendment, all provisions of the Agreement shall remain unchanged and in full force and effect.
From and after the date of this Second Amendment, whenever the term “Agreement” appears in the Agreement, it shall mean the Agreement as amended by this Second Amendment.
3.3 Adequate Consideration. The Parties hereto irrevocably stipulate and agree that they have each received adequate and independent consideration for the performance of the obligations they have undertaken pursuant to this Second Amendment.
3.4 Severability. If any portion of this Second Amendment is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
3.5 Counterparts. This Second Amendment may be executed in duplicate originals, each of which is deemed to be an original, but when taken together shall constitute but one and the same instrument.
[SIGNATURES ON FOLLOWING PAGE]
7.b
Packet Pg. 399
Attachment: Exhibit B - 2nd Amendment - Revised (4714 : Contract Amendment - New Image Flooring) 3 23152.06000\32380237.2 (BB&K: 10-19)
SIGNATURE PAGE FOR SECOND AMENDMENT TO
MAINTENANCE SERVICES AGREEMENT
BETWEEN THE CITY OF COLTON
AND NEW IMAGE COMMERCIAL FLOORING
IN WITNESS WHEREOF, the Parties have entered into this Second Amendment to the Maintenance Services Agreement as of the day and year first above written.
CITY OF COLTON
By: _________________________
William R. Smith
City Manager
Attest: ______________________________
Stephanie M. Vargas
Deputy City Clerk
NEW IMAGE COMMERCIAL FLOORING
By: _________________________
Signature
_________________________
Name (Print)
_________________________
Title (Print)
By: _________________________
Signature
_________________________
Name (Print)
_________________________
Title (Print)
7.b
Packet Pg. 400
Attachment: Exhibit B - 2nd Amendment - Revised (4714 : Contract Amendment - New Image Flooring)
4 23152.06000\32380237.2 (BB&K: 10-19)
EXHIBIT "C - SECOND AMENDMENT"
COMPENSATION
The total annual compensation shall not exceed Ninety-Two Thousand Nine Hundred Eighty Nine Dollars with Thirty Cents ($92,989.30) without written approval of the City of Colton.
Original Contract
First Amendment
$ 13,576.30
$ 29,435.00
City Manager (2nd Amendment) $ 7,732.00
City Clerk (2nd Amendment) $ 5,942.00
Mayor/Council Offices (2nd Amendment)
Electric Sub Station (2nd Amendment)
Library (2nd Amendment)
PW New Offices (2nd Amendment)
PW (Jessica's Office) (2nd Amendment)
$ 15,185.00
$ 12,747.00
$ 2,782.00
$ 3,279.00
$ 2,311.00
Total $ 92,989.30
7.b
Packet Pg. 401
Attachment: Exhibit B - 2nd Amendment - Revised (4714 : Contract Amendment - New Image Flooring) City Manager 7,732.00 $
City Clerk 5,942.00 $
Mayor/Council 15,185.00 $
Electric Sub-Station 12,747.00$
Library 2,782.00 $
PW New Offices 3,279.00 $
PW Office (Jessica) 2,311.00$
49,978.00$
7.c
Packet Pg. 402
Attachment: Exhibit C - Quotes Revised (4714 : Contract Amendment - New Image Flooring)
7.c
Packet Pg. 403
Attachment: Exhibit C - Quotes Revised (4714 : Contract Amendment - New Image Flooring)
7.c
Packet Pg. 404
Attachment: Exhibit C - Quotes Revised (4714 : Contract Amendment - New Image Flooring)
7.c
Packet Pg. 405
Attachment: Exhibit C - Quotes Revised (4714 : Contract Amendment - New Image Flooring)
7.c
Packet Pg. 406
Attachment: Exhibit C - Quotes Revised (4714 : Contract Amendment - New Image Flooring)
7.c
Packet Pg. 407
Attachment: Exhibit C - Quotes Revised (4714 : Contract Amendment - New Image Flooring)
7.c
Packet Pg. 408
Attachment: Exhibit C - Quotes Revised (4714 : Contract Amendment - New Image Flooring)
7.c
Packet Pg. 409
Attachment: Exhibit C - Quotes Revised (4714 : Contract Amendment - New Image Flooring)
ITEM NO. 8
STAFF REPORT
DATE: OCTOBER 15, 2024
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: BILL SMITH, CITY MANAGER
PREPARED BY: VICTOR ORTIZ, ASSISTANT DIRECTOR OF PUBLIC WORKS AND
ENGINEERING
SUBJECT: APPROVE CONTRACT AWARD TO CSR AIR CONDITIONING FOR EXHAUST FANS AT THE GONZALES CENTER POOL.
RECOMMENDED ACTION
Staff recommends that the City Council take the following action:
Approve a Maintenance Services Agreement with CSR Air Conditioning and Heating, Inc. (CSR) for $32,250 for the installation of new rooftop exhaust fans for the Gonzales Center pool room and authorize the City Manager to execute the contract documents.
BACKGROUND
The Building Maintenance Division entered into a Maintenance Services Agreement (MSA) with CSR Air Condi tioning and Heating, Inc., to provide maintenance and repair services to the various Air Conditioning and heating units at City facilities for Fiscal Year 2024 -25. The MSA was executed by the City Manager for an amount not to exceed $50,000 in accordance with Colton Municipal Code 3.08.060(b). The facilities covered by this MSA include City Hall, Community Centers (which are designated cooling centers for residents), Early Care & Education Facilities, Police Department, Corporate Yard, Electric Department, Fire Stations, and all other City offices.
ISSUES/ANALYSIS
There is a need at the Gonzales Center pool room for new rooftop exhaust fans which will vent chlorine fumes from the room. Building Maintenance obtained three informal bids for the cost of installing the new fans as follows:
8 Packet Pg. 410
Staff Report to the Mayor and City Council
Contract Award - CSR Air Conditioning
October 15, 2024
Staff evaluated and reviewed each submitted bid and recommends the award of the contract to CSR as the lowest responsive and resp onsible bidder in the amount of $32,250 for the Gonzales Center Project. Approval of this contract will award CSR a total aggregated amount of $82,250 for the fiscal year. Pursuant to City Ordinance 3.08.060(i), City Council approval is required to award the vendor this contract.
FISCAL IMPACTS
Sufficient appropriations are available in the FY2024-25 budget in Local Fiscal Recovery Fund Capital Improvement Account Number 219-2333-1000-3890-0000-000.
ENVIRONMENTAL IMPACTS
None.
ALTERNATIVES
Provide alternative direction to staff.
ATTACHMENT
1. CSR - Gonzales Center Bids
2. CSR Maintenance Services Agreement
Vendor Bid
CSR $32,250.00
John P. Sessions $38,750.00
Metro Builders $62,000.00
8 Packet Pg. 411
8.a
Packet Pg. 412
Attachment: CSR - Gonzales Center Bids (4676 : Contract Award - CSR Air Conditioning)
8.a
Packet Pg. 413
Attachment: CSR - Gonzales Center Bids (4676 : Contract Award - CSR Air Conditioning)
8.a
Packet Pg. 414
Attachment: CSR - Gonzales Center Bids (4676 : Contract Award - CSR Air Conditioning)
8.b
Packet Pg. 415
Attachment: CSR Maintenance Services Agreement (4676 : Contract Award - CSR Air Conditioning)
8.b
Packet Pg. 416
Attachment: CSR Maintenance Services Agreement (4676 : Contract Award - CSR Air Conditioning)
8.b
Packet Pg. 417
Attachment: CSR Maintenance Services Agreement (4676 : Contract Award - CSR Air Conditioning)
8.b
Packet Pg. 418
Attachment: CSR Maintenance Services Agreement (4676 : Contract Award - CSR Air Conditioning)
8.b
Packet Pg. 419
Attachment: CSR Maintenance Services Agreement (4676 : Contract Award - CSR Air Conditioning)
8.b
Packet Pg. 420
Attachment: CSR Maintenance Services Agreement (4676 : Contract Award - CSR Air Conditioning)
8.b
Packet Pg. 421
Attachment: CSR Maintenance Services Agreement (4676 : Contract Award - CSR Air Conditioning)
8.b
Packet Pg. 422
Attachment: CSR Maintenance Services Agreement (4676 : Contract Award - CSR Air Conditioning)
8.b
Packet Pg. 423
Attachment: CSR Maintenance Services Agreement (4676 : Contract Award - CSR Air Conditioning)
8.b
Packet Pg. 424
Attachment: CSR Maintenance Services Agreement (4676 : Contract Award - CSR Air Conditioning)
8.b
Packet Pg. 425
Attachment: CSR Maintenance Services Agreement (4676 : Contract Award - CSR Air Conditioning)
8.b
Packet Pg. 426
Attachment: CSR Maintenance Services Agreement (4676 : Contract Award - CSR Air Conditioning)
8.b
Packet Pg. 427
Attachment: CSR Maintenance Services Agreement (4676 : Contract Award - CSR Air Conditioning)
8.b
Packet Pg. 428
Attachment: CSR Maintenance Services Agreement (4676 : Contract Award - CSR Air Conditioning)
8.b
Packet Pg. 429
Attachment: CSR Maintenance Services Agreement (4676 : Contract Award - CSR Air Conditioning)
8.b
Packet Pg. 430
Attachment: CSR Maintenance Services Agreement (4676 : Contract Award - CSR Air Conditioning)
8.b
Packet Pg. 431
Attachment: CSR Maintenance Services Agreement (4676 : Contract Award - CSR Air Conditioning)
8.b
Packet Pg. 432
Attachment: CSR Maintenance Services Agreement (4676 : Contract Award - CSR Air Conditioning)
8.b
Packet Pg. 433
Attachment: CSR Maintenance Services Agreement (4676 : Contract Award - CSR Air Conditioning)
8.b
Packet Pg. 434
Attachment: CSR Maintenance Services Agreement (4676 : Contract Award - CSR Air Conditioning)
8.b
Packet Pg. 435
Attachment: CSR Maintenance Services Agreement (4676 : Contract Award - CSR Air Conditioning)
8.b
Packet Pg. 436
Attachment: CSR Maintenance Services Agreement (4676 : Contract Award - CSR Air Conditioning)
ITEM NO. 9
STAFF REPORT
DATE: OCTOBER 15, 2024
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: BILL SMITH, CITY MANAGER
PREPARED BY: DEB FARRAR, COMMUNITY SERVICES DIRECTOR
SUBJECT: AWARD CONTRACTS TO ELLIS EQUIPMENT INC AND
PERFORMANCE CONSTRUCTION & PAINTING FOR K-RAILS
AND FENCING TO SECURE THE PROPERTY OF THE COLTON
ECO-FRIENDLY PARK WITH COMMUNITY SPORTS FIELDS.
RECOMMENDED ACTION
Staff recommends that the City Council take the following action:
1. Award Professional Services Agreement s to s ecure the perimeter of the Colton Eco Friendly Park with Community Sports Fields and Amenities a. Ellis Equipment, Inc for purchase and delivery of K -Rails, not to exceed $52,782.50.
b. Performance Construction & Painting for fencing, not to exceed $89,885.
2. Authorize the City Manager to execute all contracts necessary to proceed.
BACKGROUND
The City of Colton has started the first park project in 25 years to address the shortage of soccer and football fields, causing over 1,000 youth to rely on inadequate scho ol facilities. The 45-acre Habitat Conservation Park with Eco -Friendly Community Sports Fields and Amenities will establish a central soccer complex near Veterans Park and the Santa Ana River. This project, endorsed by the City Council, includes 21 acres for sports fields and 24 acres for wildlife conservation. Development began in 2014, with environmental studies ensuring compliance with regulations. Funding efforts involved securing grants, including $18 million secured by Assembly Member Eloise Gómez Reyes for the Colton Soccer Complex development, formalized in June 2023.
9 Packet Pg. 437
Staff Report to the Mayor and City Council
Contract Awards - Ellis Equipment/Performance Construction October 15, 2024
ISSUES/ANALYSIS
The proposed park site is currently vacant, bordered by two residential streets —Fernandez and Florez—and adjacent to undeveloped land along Congress. To effectively address the increasing issue of illegal dumping and unauthorized access, it is essential to implement a fencing and barrier solution. Erecting a secure barrier will significantly deter trespassers and protect the park from waste accumulation and potential damage. In addition to a fence, incorporating K-rails will clearly delineate property boundaries and convey that the space is monitored and maintained.
This proactive approach will help preserve the environmental integrity of the area, reduce cleanup costs, and foster a sense of community responsibility. Ultimately, investing in a secure perimeter is a vital step toward safeguarding the property and promoting a cleaner, safer environment for all.
In September 2024, Public Works issued a n informal bid to contractors with experience in fencing and K -rails in accordance with Colton Municipal Code section 3.08.120 , based on the scope and layout provided by the Park Development Consultant, PBLA. Proposals were received by three companies related to K -Rails a nd two fencing companies, with another withdrawing from the process.
K-Rails Bid Proposals:
1. Ellis Equipment, Inc $52,793.50
2. Pro Cast Products $59,553.66
3. California Barricade $64,534.60
Fencing Bid Proposals:
1. Performance Construction & Painting $89,885.00
2. Metro Builders & Engineers Group, Inc $97,667.32
3. All Counties Fence & Supply Withdrawn
Staff has evaluated and reviewed the submitted bid proposals, in both cases, the lowest bidder is within project budget. Staff recommends award of construction contracts to the lowest responsive and responsible bidders:
K-Rails Ellis Equipment $52,793.50
Fencing Performance Construction & Painting $89,885.00
FISCAL IMPACTS
City Council approved Resolution R-31-23 on April 18, 2023, appropriated funding for the State Grant in expenditure account group 225 -6200-6238. Adequate appropriations are available in the FY2024 -25 budget in Miscellaneous Grants Fund Capital Improvement Account number 225-6200-6238-3890-000-023.
9 Packet Pg. 438
Staff Report to the Mayor and City Council
Contract Awards - Ellis Equipment/Performance Construction October 15, 2024
ALTERNATIVES
1. Provide alternative direction to staff.
ATTACHMENT
1. k-Rail Layout-Layout
2. Fencing Bids
3. K Rail Quotes
9 Packet Pg. 439
PBLA
BALP
9.a
Packet Pg. 440
Attachment: k-Rail Layout-Layout (4705 : Contract Awards - Ellis Equipment/Performance Construction)
PERFORMANCE CONSTRUCTION & PAINTING
Shop address: CA Lic. #613472- NV Lic #'s 0080644 & 0080645 Mailing address:
14838 Boyle Avenue (909) 428-3655 9185 W. Rochelle Fontana, CA 92337-6202 [email protected] Las Vegas, NV 89147-7831
PROPOSAL and CONTRACT
Prepared for: City Of Colton Project: Temporary fence/gate installation 650 N. La Cadena Drive Location: Colton Soccer Complex Colton, CA 92324-2891 977 S. Flores Street
Colton, CA 92324
Proposal # 1 Date: 09-20-2024 Page #1 OF 3
______________________________________________________________________________________________________________________________________________________________________ We propose to furnish all the materials and labor necessary for the completion of:
Install three gates and temporary chain link fencing per drawings provided.
Work to include:
1. Remove existing fencing as required.
2. Adjust 340' of fencing as required.
3. Provide footing per drawings.
4. Manufacture and install galvanized steel A-frame gates per drawing.
5. Install three chain link gates per plans.
6. Install 1,276' of chain link per plans.
7. Clean work area and haul debris.
All work to be performed/installed in accordance with the manufacturer's specifications. Work to be in a timely and workman l ike manner. Approximately one week for completion. Job to be left clean and free of debris. Does not include City fees, plans, permits, remediation, hazardous item testing, painting, signage, items hidden from view or items not specified. M.S.D.S.’s, color charts, specifications and/or samples available upon request. See attachments. Price is based on prevailing wage. ______________________________________________________________________________________________________________________________________________________________________ All material is guaranteed to be as specified, and the above work to be performed in accordance with the drawings and specifi cations submitted for above work for the sum of: Eight Nine Thousand Eight Hundred Eighty Five and 00/100 ( $ 89,885.00) Dollars.
Payment to be made as follows: _ ____NET THIRTY_____________________________________________________________ (Late charge of $35.00 + 1 1/2 % monthly)
Any alteration or deviation from the above specifications involving extra costs, will be executed only upon written change orders, and will become an extra charge over and above the estimate. All agreements contingent upon strikes, accidents or delays beyond our control. Owner to carry fire, tornado and other necessary insurance upon above work.
______________________________________________________________________________________________________________________________________________________________________
"NOTICE TO OWNER"
STATE LAW REQUIRES ANYONE WHO CONTRACTS TO DO CONSTRUCTION WORK TO BE LICENSED BY THE
CONTRACTORS STATE LICENSE BOARD IN THE LICENSE CATEGORY IN WHICH THE CONTRACTOR IS GOING TO BE WORKING--IF THE TOTAL PRICE OF THE JOB IS $500 OR MORE (INCLUDING LABOR AND MATERIALS).
9.b
Packet Pg. 441
Attachment: Fencing Bids (4705 : Contract Awards - Ellis Equipment/Performance Construction)
LICENSED CONTRACTORS ARE REGULATED BY LAWS DESIGNED TO PROTECT THE PUBLIC. IF YOU
CONTRACT WITH SOMEONE WHO DOES NOT HAVE A LICENSE, THE CONTRACTORS STATE LICENSE BOARD MAY BE UNABLE TO ASSIST YOU WITH A COMPLAINT. YOUR ONLY REMEDY AGAINST AN UNLICENSED
CONTRACTOR MAY BE IN CIVIL COURT, AND YOU MAY BE LIABLE FOR DAMAGES ARISING OUT OF ANY INJURIES TO THE CONTRACTOR OR HIS EMPLOYEES.
YOU MAY CONTACT THE CONTRACTORS STATE LICENSE BOARD TO FIND OUT IF THIS CONTRACTOR HAS A VALID LICENSE. THE BOARD HAS COMPLETE INFORMATION ON THE HISTORY OF LICENSED CONTRACTORS, INCLUDING ANY POSSIBLE SUSPENSIONS, REVOCATIONS, JUDGMENTS, AND CITATIONS.
THE BOARD HAS OFFICES THROUGHOUT CALIFORNIA. PLEASE CHECK THE GOVERNMENT PAGES OF THE WHITE PAGES FOR THE OFFICE NEAREST YOU OR CALL 1-800-321-CSLB FOR MORE INFORMATION.
Contractors are required by law to be licensed and regulated by the Contractors State License Board, which has jurisdiction t o investigate complaints against contractors if a complaint regarding a patent act or omission is filed within four years of the date of the alleged violation. A complaint regarding a latent act or omission pertaining to structural defects must be filed within 10 years of the date of the alleged violation. Any questions concerning the contractor may be referred to the Registrar, Contractors State L icense Board, Post Office Box 26000, Sacramento, California 95826.
Under the California mechanics' Lien Law, any contractor, subcontractor, laborer, supplier, or other person or entity who hel ps to improve your property, but is not paid for his or her work or supplies, has a right to place a lien on your home, land, or pr operty where the work was performed and to sue you in court to obtain payment.
This means that after a court hearing, your home, land, and property could be sold by a court officer and the proceeds of the sale used to satisfy what you owe. This can happen even if you have paid your contractor in full if the contractor’s subcontractors, l aborers, or suppliers remain unpaid.
To preserve their rights to file a claim or lien against your property, certain claimants such as subcontractors or material suppliers are each required to provide you with a document called a “Preliminary Notice.” Contractors and laborers who contract with owner s directly do not have to provide such notice since you are aware of their existence as an owner. A preliminary notice is not a lien against your property. Its purpose is to notify you of persons or entities that may have a right to file a lien against your property if they are not paid. In order to perfect their lien rights, a contractor, subcontractor, supplier, or laborer must file a mechanics’ lien with the county recorder, which then becomes a recorded lien against your property. Generally, the maximum time allowed for filing a mechanics’ lien against your property is 90 days after substantial completion of your project.
TO INSURE EXTRA PROTECTION FOR YOURSELF AND YOUR PROPERTY, YOU MAY WISH TO TAKE ONE OR MORE OF THE FOLLOWING STEPS:
(1) Require that your contractor supply you with a payment and performance bond (not a license bond), which provides that the bonding company will either complete the project or pay damages up to the amount of the bond. This payment and performance bond as well as a copy of the construction contract should be filed with the county recorder for your further protection. The payment and performance bond will usually cost from 1 to 5 percent of the contract amount depending on the contractor’s bonding ability. If a contractor cannot obtain such bonding, it may indicate his or her financial incapacity.
(2) Require that payments be made directly to subcontractors and material suppliers through a joint control. Funding service s may be available, for a fee, in your area, which will establish voucher or other means of payment to your contractor. These service s may also provide you with lien waivers and other forms of protection. Any joint control agreement should include the addendum approve d by the registrar.
(3) Issue joint checks for payment, made out to both your contractor and subcontractors or material suppliers involved in the project.
The joint checks should be made payable to the persons or entities which send preliminary notices to you. Those persons or e ntities have indicated that they may have lien rights on your property; therefore you need to protect yourself. This will help to insure that all persons due payment are actually paid.
(4) Upon making payment on any completed phase of the project, and before making any further payments, require your contracto r to provide you with unconditional “Waiver and Release” forms signed by each material supplier, subcontractor, and laborer involved in
9.b
Packet Pg. 442
Attachment: Fencing Bids (4705 : Contract Awards - Ellis Equipment/Performance Construction)
that portion of the work for which payment was made. The statutory lien releases are set forth in exact language in Section 3262 of the Civil Code. Most stationery stores will sell the “Waiver and Release” forms if your contractor does not have them. T he material suppliers, subcontractors, and laborers that you obtain releases from are those persons or entities who have filed preliminary notices with you. If you are not certain of the material suppliers, subcontractors, and laborers working on your project, yo u may obtain a list from your contractor. On projects involving improvements to a single -family residence or a duplex owned by the individuals, the persons signing these releases lose the right to file a mechanics’ lien claim against your property. In other types of construction, this protection may still be important, but may not be as complete.
To protect yourself under this option, you must be certain that all material suppliers, subcontractors, and laborers have signed the “Waiver and Release” form. If a mechanics’ lien has been filed against your property, it can only be voluntarily released by a recorded “Release of Mechanics’ Lien” signed by the person or entity that filed the mechanics’ lien against your property unl ess the lawsuit to enforce the lien was not timely filed. You should not make any final payments until any and all such liens are re moved.
You should consult an attorney if a lien is filed against your property.
"Any controversy or claims arising out of or related to this contract, or breach thereof, shall be settled by arbitration in accordance with the Uniform Rules for Better Business Bureau Arbitration, and the judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof,"____________________________.
Failure to commence work within 20 days from approximate date specified is a violation of Contractors License law.
No contractor shall accept more than 10% or $1000.00 down payment, whichever is less. _____________________________________________________________________________________________________________________________________________________________________________
Performance Construction & Painting retains the right to take any delinquent account to the Rancho Cucamonga Small Claims division, San Bernardino County, regardless of the location of the invoiced sale. If suit or action by an attorney is instit uted, buyer promises to pay reasonable attorney fees/court costs incurred.
The above prices, specifications and conditions are satisfactory and are hereby accepted. You are authorized to do the work a s specified. Payment will be made as outlined above.
CONTRACTOR’S AUTHORIZED SIGNATURE_______________________________________________
NOTE: THIS PROPOSAL MAY BE WITHDRAWN BY US IF NOT ACCEPTED WITHIN 30 DAYS.
Date of acceptance:___________ BUYER’S SIGNATURE:______________________________
BUYER’S SIGNATURE:______________________________
9.b
Packet Pg. 443
Attachment: Fencing Bids (4705 : Contract Awards - Ellis Equipment/Performance Construction)
Metro Builders & Engineers Group, Ltd.
2610 Avon Street, Newport Beach, CA 92663 – Phone: 949.515.4350 – Fax: 949.515.4351 – metrobuilders.com September 13, 2024
Bid Proposal
Project: City of Colton - Soccer Complex
Bid Date: 09/13/2024
Bid Time: 2.00 pm
Addendums Noted: N/A
Jobsite Location: 977 S Flores St, Colton CA 92324
Drawings: N/A
Christian,
Metro Builders & Engineers Group, Ltd. is pleased to offer the following bid for the City of Colton - Soccer Complex project. Our pricing is per the following inclusions, exclusions, and clarifications:
Total Price for all bid items: $84,434.52
Inclusions:
Base Bid
Item Description Qty Unit Unit Cost Extended Amount
1 Tempory 6' High CLF 1276 LF $ 52.77 $ 67,334.52 2 10' Wide Tube Steel "A" Frame Gate 3 EA $ 2,850.00 $ 8,550.00 3 10' Wide x 6' High Chain Link Gate 3 EA $ 2,850.00 $ 8,550.00 Total $ 84,434.52
Optional Items
1 Remove Existing Fencing 340 LF $ 27.60 $ 9,384.00 2 Adjust Existing Fencing 340 LF $ 38.92 $ 13,232.80
General
• Sales Tax
9.b
Packet Pg. 444
Attachment: Fencing Bids (4705 : Contract Awards - Ellis Equipment/Performance Construction)
Metro Builders & Engineers Group, Ltd.
2610 Avon Street, Newport Beach, CA 92663 – Phone: 949.515.4350 – Fax: 949.515.4351 – metrobuilders.com Exclusions:
• Any other work not indicated in inclusion.
Clarifications:
• Bid valid for 30 days.
Sincerely,
Ivan Martinez
(714) 404-1799
[email protected]
Metro Builders & Engineers Group, Ltd.
CA State Contractor’s License #597589 (A, B, C-10, C-51) CA State DIR #1000002925
MWD SBE Cert 166228
9.b
Packet Pg. 445
Attachment: Fencing Bids (4705 : Contract Awards - Ellis Equipment/Performance Construction)
SALES QUOTE
Date
9/3/2024
Quote #
14658
Name / Address
City of Colton
160 S. 10th St.
Colton, CA 92324
Sales Rep
JED
Product
K-Rail
Total
Subtotal
Sales Tax (8.75%)
1015 E. Burnett St. PH: 1 (562) 424-9991
Signal Hill, CA 90755 FX: 1 (562) 264-2444
WMDBE CERT# 39053
By accepting this quote, customer agrees to Ellis Equipment's Terms and Conditions. Terms and Conditions are subject to change without notice. If customer does not have a copy of Ellis' Terms and Conditions it is the customers resposibility to request a copy.
Description Qty TotalPrice
(61) 20ft USED CONCRETE K-RAIL PREMIUM - 1220ft
$600 each + tax
61 36,600.00T600.00
Delivery of (61) 20ft Concrete K-Rail
$850 per load - 120LF per load - (10) load(s)
*(1) 20ft K-Rail to be delivered on truck with machine. 10 8,500.00 850.00
Installation Services @ $455/hr (8hrs)
Includes: Reach Forklift w/ Operator, Ground Laborer and K-Rail Lifting Attachment *8hr minimum to complete job.
8 3,640.00 455.00
Delivery and Pick up of Reach Forklift and (1) 20ft K-Rail - Installation 2 850.00 425.00 ------------------------------------------------------------------------------- Project Location: Colton, CA
Project Requestor: Chris Cruz | [email protected]
NOTES: In the event installation is not selected, an additional charge of (1) load will be charged for the (1) 20ft K-Rail.
9.c
Packet Pg. 446
Attachment: K Rail Quotes (4705 : Contract Awards - Ellis Equipment/Performance Construction)
SALES QUOTE
Date
9/3/2024
Quote #
14658
Name / Address
City of Colton
160 S. 10th St.
Colton, CA 92324
Sales Rep
JED
Product
K-Rail
Total
Subtotal
Sales Tax (8.75%)
1015 E. Burnett St. PH: 1 (562) 424-9991
Signal Hill, CA 90755 FX: 1 (562) 264-2444
WMDBE CERT# 39053
By accepting this quote, customer agrees to Ellis Equipment's Terms and Conditions. Terms and Conditions are subject to change without notice. If customer does not have a copy of Ellis' Terms and Conditions it is the customers resposibility to request a copy.
Description Qty TotalPrice
- Payment is due in Full on day of delivery. If paid for with a credit card, there will be a 3% service charge applied.
- Stand by time for trucks starts 20 minutes after arrival at $155/hr. Stand by time begins if a delay is caused by Ellis' customer or any of its affiliates. - Forklift Operator / Ground Laborer rates are assessed for total time on site, after hourly minimum has been met.
- Each 20' K-Rail weighs approx 8,000lbs
- Ellis excludes any necessary traffic control. Traffic control and Traffic Permits are the sole responsibility of Ellis' customer.
- Rejected or returned K-rail re-stocking fee may apply. - This Quote is Valid for 15 Days from Date of Estimate. - Transportation Charges are Subject to Change Due to the Rise in Diesel Costs Without a Formal Notice.
*Please Contact your Ellis Rep if Quote has Expired or to Verify Current Transportation Charges.
0.00
$52,792.50
$49,590.00
$3,202.50
9.c
Packet Pg. 447
Attachment: K Rail Quotes (4705 : Contract Awards - Ellis Equipment/Performance Construction)
QUOTATION
Quantity Item Description Unit Price Amount
1,220.00 700 20' K-RAIL SECTION PER 2018 CAL TRANS SPECS, 39.95 48,739.00
PAINTED WHITE, W/ CONNECTING PIN
(61 EACH 20'')
10.00 301 FLATBED DELIVERY (NON-TAXABLE): INCLUDES ONE 495.00 4,950.00 HOUR. ADDITIONAL STANDBY WILL BE BILLED AT
$125/HR.
1.00 300 BOOM TRUCK DELIVERY (NON-TAXABLE): INCLUDES 1,600.00 1,600.00 ONE HOUR. ADDITIONAL STANDBY WILL BE BILLED AT
$250/HR.
BOOM TRUCK TO CARRY 2OLF
prevailing wage
Quote Number: 20873
Quote Date: Sep 3, 2024
Sales Rep
Quoted To:
COD
Good Thru
10/3/24
Customer ID Payment Terms
Page:
COD Net Due 300Krieger
1 TOTAL 59,553.66
Sales Tax 4,264.66
Subtotal 55,289.00
P.O. Box 602
Highland, CA 92346
909-793-7602 fax 909-793-1283
Quoted For:
CITY OF COLTON PUBLIC WORKS
CONGRESS ST AND FOGG ST
COLTON, CA
NEW 20'
www.procastproducts.com
This quotation is subject to Procast Products terms and conditions as posted on our website www.procastproducts.com upon request a copy of the terms and conditions will be immediately sent to the purchaser via regular mail or fax.
Quantities less than stated above are subject to revised pricing.
Accepted by ___________________________________________ Print name and title_____________________________________
9.c
Packet Pg. 448
Attachment: K Rail Quotes (4705 : Contract Awards - Ellis Equipment/Performance Construction) PROPOSAL - 9/5/2024
1550 E. Saint Gertrude Place
Santa Ana, CA 92705
Toll Free: (800) 327-8844
Phone: (714) 558-8474
Fax: (714) 558-3821
Company: City of Colton Project Name:
Name: Cristian Cruz
City:
Public:
Purchase (Used)
Qty Unit Price Total
61 720.00$ 43,920.00$
1 11,500.00$ 11,500.00$
1 5,052.00$ 5,052.00$
Subtotal 60,472.00$
Sales Tax 4,062.60$
Total 64,534.60$
• This is a preliminary quote based on the details provided. This proposal is subject to change if the scope of the work changes. • Sale Lead time: In Stock
• Payment terms: Net 30 with a PO
• $0.67 per mile fuel surcharge included.
• Equipment is subject to availability at the time of order. • This proposal is valid until November 30, 2024.
Respectfully submitted by: Christina Tangitau • [email protected] • (714) 558-8474 • The job site must be accessible at the time of delivery of the k-rail. If it is not accessible and if requested by the customer, the k-rail will be dropped off at the closest available site. If the k-rail cannot be delivered, the customer will be charged for freight out and back.
Flatbed Delivery Move In: 120LF per load, 16 loads
PW Installation Service:
includes 8 hours, additional standby will be billed at $420/hr., reach forklift w/ operator, ground laborer and k-rail lifting attachment.
Description
Colton, CA
Job Address:
20' USED Concrete K-Rail Premium: per Cal Trans specs.
Yes
No
California State Contractors License Number 785733-C31
9.c
Packet Pg. 449
Attachment: K Rail Quotes (4705 : Contract Awards - Ellis Equipment/Performance Construction)
ITEM NO. 10
STAFF REPORT
DATE: OCTOBER 15, 2024
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: BILL SMITH, CITY MANAGER
PREPARED BY: VICTOR ORTIZ, ASSISTANT DIRECTOR OF PUBLIC WORKS AND
ENGINEERING
SUBJECT: AWARD CONTRACT TO PERFORMANCE CONSTRUCTION &
PAINTING FOR THE ARPA FUNDED POOL DECK PROJECT.
RECOMMENDED ACTION
Staff recommends that the City Council take the following action:
1. Approve a contract with Performance Construction & Painting for the Pool Deck Project for $89,950.00.
2. Authorize the City Manager to execute the contract with Performance Construction & Painting.
BACKGROUND
The pool deck at the Gonzalez Aquatics Center has been eroded by years of chlorine degradation. To date, the pool deck has not been updated and it is still in its original condition.
ISSUES/ANALYSIS
In accordance with Colton Municipal Code (CMC) Section 3.08.060 (C), the City Public Works Building Maintenance Supervisor sent out a notice inviting informal bids to multiple local contractors known vendors for the Pool Deck Project. All bids came in as follows are listed from lowest dollar amount to highest dollar amount:
1. Performance Construction $ 89,950.00
2. Metro Builders & Engineers Group, Ltd $167,281.00
3. Moore United Construction, Inc. $243,988.00
10 Packet Pg. 450
Staff Report to the Mayor and City Council
Contract Award - Performance Construction & Painting
October 15, 2024
After review of the informal bids received, the Building Maintenance Supervisor recommends to award to the lowest responsible and responsive bidder, Performance Construction & Painting.
FISCAL IMPACTS
Sufficient appropriations for the contract for the Pool Deck Project are available in the FY2024- 25 budget in Local Fiscal Recovery Fund Capital Improvement Account Number 219 -2331- 1000-3890-0000-000.
ALTERNATIVES
Provide alternative direction to staff.
ATTACHMENT
1. Maintenance Services Agreement
10 Packet Pg. 451
23152.04000\42402786.1
(BB&K 2024)
- 1 -
CITY OF COLTON
MAINTENANCE SERVICES AGREEMENT
1. PARTIES AND DATE.
This Agreement is made and entered into this 15th day of October, 2024 by and between the City of Colton, a municipal corporation organized under the laws of the State of California with its principal place of business at 650 North La Cadena Drive, Colton, California 92234, County of San Bernardino, State of California (“City”) and Performance Construction & Painting, a Sole Ownership with its principal place of business at 9185 W. Rochelle, Las Vegas, NV 89147-7831 (“Contractor”). City and Contractor are sometimes individually referred to as “Party” and collectively as “Parties” in this Agreement.
2. RECITALS.
2.1 Contractor.
Contractor desires to perform and assume responsibility for the provision of certain maintenance services required by the City on the terms and conditions set forth in this Agreement.
Contractor represents that it is experienced in providing clean, repair, grind, skim coat cement pool deck services to public clients, that it and its employees or subcontractors have all necessary licenses and permits to perform the Services in the State of California, and that is familiar with the plans of City. Contractor shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement.
2.2 Project.
City desires to engage Contractor to render such services for the Pool Deck Project (“Project”) as set forth in this Agreement.
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 General Scope of Services. Contractor promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional cleaning, repairing, grinding, and skim coating pool deck maintenance services necessary for the Project (“Services”). The Services are more particularly described in Exhibit “A” attached hereto and incorporated herein by reference.
All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations.
3.1.2 Term. The term of this Agreement shall be from October 16, 2024 to December 31, 2025, unless earlier terminated as provided herein. Contractor shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. The Parties may, by mutual, written consent, extend the term of this Agreement if necessary to complete the Services.
10.a
Packet Pg. 452
Attachment: Maintenance Services Agreement (4697 : Contract Award - Performance Construction & Painting) 23152.04000\42402786.1
(BB&K 2024)
- 2 -
3.2 Responsibilities of Contractor.
3.2.1 Control and Payment of Subordinates; Independent Contractor . The Services shall be performed by Contractor or under its supervision. Contractor will determine the means, methods and details of performing the Services subject to the req uirements of this Agreement. City retains Contractor on an independent contractor basis and not as an employee.
Contractor retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Contractor shall also not be employees of City and shall at all times be under Contractor’s exclusive direction and control. Contractor shall pay all wages, salaries, and other amounts due such per sonnel in connection with their performance of Services under this Agreement and as required by law. Contractor shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes , income tax withholding, unemployment insurance, disability insurance, and workers’ compensation insurance.
3.2.2 Schedule of Services. Contractor shall perform the Services expeditiously, within the term of this Agreement, and in accordance with the Schedule of Services set forth in Exhibit “B” attached hereto and incorporated herein by reference. Contractor represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Contractor’s conformance with the Schedule, City shall respond to Contractor’s submittals in a timely manner. Upon request of City, Contractor shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services.
3.2.3 Conformance to Applicable Requirements . All work prepared by Contractor shall be subject to the approval of City.
3.2.4 City’s Representative. The City hereby designates William R. Smith, City Manager, or his or her designee, to act as its representative for the performance of this Agreement (“City’s Representative”). City’s Representative shall have the power to act on behalf of the City for all purposes under this Agreement. Contractor shall not accept direction or orders from any person other than the City’s Representative or his or her designee.
3.2.5 Contractor’s Representative . Contractor hereby designates Patrick Carmell, Managing Member , or his or her designee, to act as its representative for the performance of this Agreement (“Contractor’s Representative ”). Contractor’s Representative shall have full authority to represent and act on behalf of the Contractor for all purposes under this Agreement. The Contractor’s Representative shall supervise and direct the Services, using his best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement.
3.2.6 Coordination of Services. Contractor agrees to work closely with City staff in the performance of Services and shall be available to City’s staff, consultants and other staff at all reasonable times.
3.2.7 Standard of Care; Performance of Employees. Contractor shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Contractor represents and maintains that it is skilled in the professional calling necessary to perform the Se rvices. Contractor warrants that all employees and subcontractors
10.a
Packet Pg. 453
Attachment: Maintenance Services Agreement (4697 : Contract Award - Performance Construction & Painting) 23152.04000\42402786.1
(BB&K 2024)
- 3 -
shall have sufficient skill and experience to perform the Services assigned to them. Finally, Contractor represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, including a City Business License, and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the inde mnification provisions of this Agreement, Contractor shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Contractor’s failure to comply with the standard of care provided for herein. Any employee of the Contractor or its sub-contractors who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Contractor and shall not be re-employed to perform any of the Services or to work on the Project.
3.2.8 Period of Performance. Contractor shall perform and complete all Services under this Agreement within the term set forth in Section 3.1.2 above (“Performance Time”).
Contractor shall perform the Services in strict accordance with any completion schedule or Project milestones described in Exhibits “A” or “B” attached hereto, or which may be provided separately in writing to the Contractor. Contractor agrees that if the Services are not completed within the aforementioned Performance Time and/or pursuant to an y such completion schedule or Project milestones developed pursuant to provisions of this Agreement, it is understood, acknowledged and agreed that the City will suffer damage. Pursuant to Government Code Section 53069.85, Contractor shall pay to the City as fixed and liquidated damages, and not as a penalty, the sum of One-Hundred Dollars ($100) per day for each and every calendar day of delay beyond the Performance Time or beyond any completion schedule or Project milestones established pursuant to this Agreement.
3.2.9 Disputes. Should any dispute arise respecting the true value of any work done, of any work omitted, or of any extra work which Contractor may be required to do, or respecting the size of any payment to Contractor during the performance of this Contract, Contractor shall continue to perform the Work while said dispute is decided by the City. If Contractor disputes the City’s decision, Contractor shall have such remedies as may be provided by law.
3.2.10 Laws and Regulations; Employee/Labor Certificatio ns. Contractor shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Contractor shall be liable for all violations of such laws and regulations in connection with Services. If the Contractor performs any work knowing it to be contrary to such laws, rules and regulations and without giving writ ten notice to the City, Contractor shall be solely responsible for all costs arising therefrom. City is a public entity of the State of California subject to certain provisions of the Health & Safety Code, Government Code, Public Contract Code, and Labor Code of the State. It is stipulated and agreed that all provisions of the law applicable to the public contracts of a municipality are a part of this Agreement to the same extent as though set forth herein and will be complied with. These include but are not limited to the payment of prevailing wages, the stipulation that eight (8) hours’ labor shall constitute a legal day’s work and that no worker shall be permitted to work in excess of eight (8) hours during any one calendar day except as permitted by l aw. Contractor shall defend, indemnify and hold City, its officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations.
10.a
Packet Pg. 454
Attachment: Maintenance Services Agreement (4697 : Contract Award - Performance Construction & Painting) 23152.04000\42402786.1
(BB&K 2024)
- 4 -
3.2.10.1 Employment Eligibility; Contractor . By executing this Agreement, Contractor verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time. Such requirements and restrictions include, but are not limited to, examination and retention of documentation confirming the identity and immigration status of each employee of the Contractor.
Contractor also verifies that it has not committed a violation of any such law within the five (5) years immediately preceding the date of execution of this Agreement, and sh all not violate any such law at any time during the term of the Agreement. Contractor shall avoid any violation of any such law during the term of this Agreement by participating in an electronic verification of work authorization program operated by the United States Department of Homeland Security, by participating in an equivalent federal work authorization program operated by the United States Department of Homeland Security to verify information of newly hired employees, or by some other legally acceptable method. Contractor shall maintain records of each such verification, and shall make them available to the City or its representatives for inspection and copy at any time during normal business hours. The City shall not be responsible for any costs or expenses related to Contractor’s compliance with the requirements provided for in Section 3.2.10 or any of its sub- sections.
3.2.10.2 Employment Eligibility; Subcontractors, Sub-subcontractors and Consultants. To the same extent and under the same conditions as Contractor, Contractor shall require all of its subcontractors, sub-subcontractors and consultants performing any work relating to the Project or this Agreement to make the same verifications and comply with all requirements and restrictions provided for in Section 3.2.10.1.
3.2.10.3 Employment Eligibility; Failure to Comply . Each person executing this Agreement on behalf of Contractor verifies that they are a duly authorized officer of Contractor, and understands that any of the following shall be grounds for the City to terminate the Agreement for cause: (1) failure of Contractor or its subcontractors, sub -subcontractors or consultants to meet any of the requirements provided for in Sections 3.2.10.1 or 3.2.10.2; (2) any misrepresentation or material omission concerning compliance with such requirements (including in those verifications provided to the Contractor under Section 3.2.10.2); or (3) failure to immediately remove from the Project any person found not to be in compliance with such requirements.
3.2.10.4 Labor Cer tification. By its signature hereunder, Contractor certifies that it is aware of the provisions of Section 3700 of the California 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 agrees to comply with such provisions before commencing the performance of the Services.
3.2.10.5 Equal Opportunity Employment. Contractor represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non -discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Contractor shall also comply with all relevant provisions of City’s Minority Business Enterprise program, Affirmative Action Plan or other related p rograms or guidelines currently in effect or hereinafter enacted.
10.a
Packet Pg. 455
Attachment: Maintenance Services Agreement (4697 : Contract Award - Performance Construction & Painting) 23152.04000\42402786.1
(BB&K 2024)
- 5 -
3.2.10.6 Air Quality. Contractor must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emission s limits and permitting requirements imposed by the South Coast Air Quality Management District (SCAQMD) and/or California Air Resources Board (CARB). Although the SCAQMD and CARB limits and requirements are more broad, Contractor shall specifically be aw are of their application to "portable equipment", which definition is considered by SCAQMD and CARB to include any item of equipment with a fuel -powered engine. Contractor shall indemnify City against any fines or penalties imposed by SCAQMD, CARB, or any other governmental or regulatory agency for violations of applicable laws, rules and/or regulations by Contractor, its subcontractors, or others for whom Contractor is responsible under its indemnity obligations provided for in this Agreement. (A) Contractor shall comply, and shall ensure all subcontractors comply, with all applicable terms of Title 13, California Code of Regulations Division 3, Chapter 9 (“Regulation”).
(B) Throughout the Project, and for three (3) years thereafter, Contractor shall make available for inspection and copying any and all documents or information associated with Contractor’s and subcontractors’ Fleet including, without limitation, the Certificate(s) of Reported Compliance (CRCs), fuel/refueling records, maintenance records, emissions records, and any other information the Contractor is required to produce, keep or maintain pursuant to the Regulation upon two (2) calendar days’ notice from the Commission. (C) Contractor shall be solely liable for any and all costs associated with complying with the Regulation as well as for any and all penalties, fines, damages, or costs associated with any and all violations, or failures to comply with the Regulation.
Contractor shall defend, indemnify and hold harmless the Commission, its officials, offi cers, employees and authorized volunteers free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Regulation.
3.2.10.7 Water Quality.
(A) Management and Compliance . To the extent app licable, Contractor’s Services must account for, and fully comply with, all local, state and federal laws, rules and regulations that may impact water quality compliance, including, without limitation, all applicable provisions of the Federal Water Polluti on Control Act (33 U.S.C. §§ 1300); the California Porter-Cologne Water Quality Control Act (Cal Water Code §§ 13000 -14950); laws, rules and regulations of the Environmental Pr otection Agency and the State Water Resources Control Board and the Santa Ana Re gional Water Quality Control Board ; the City’s ordinances regulating discharges of storm water; and any and all regulations, policies, or permits issued pursuant to any such authority regulating the discharge of pollutants, as that term is used in the Porter-Cologne Water Quality Control Act, to any ground or surface water in the State. (B) Liability for Non -Compliance. Failure to comply with the laws, regulations and policies described in this Section is a violation of law that may subject Contractor or City to penalties, fines, or additional regulatory requirements. Contractor shall defend, indemnify and hold the City, its directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from and against any and all fines, penalties, claims or other regulatory requirements imposed as a result of Contractor’s non-compliance with the laws, regulations and policies described in this Section,
10.a
Packet Pg. 456
Attachment: Maintenance Services Agreement (4697 : Contract Award - Performance Construction & Painting) 23152.04000\42402786.1
(BB&K 2024)
- 6 -
unless such non-compliance is the result of the sole established negligence, willful misconduct or active negligence of the City, its officials, officers, agents, employees or authorized volunteers. (C) Training. In addition to any other standard of care requirements set forth in this Agreement, Cont ractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them without impacting water quality in violation of the laws, regulations and policies described in this Section. Contract or further warrants that it, its employees and subcontractors will receive adequate training, as determined by City, regarding the requirements of the laws, regulations and policies described in this Section as they may relate to the Services provided unde r this Agreement. Upon request, City will provide Contractor with a list of training programs that meet the requirements of this paragraph.
3.2.11 Insurance.
3.2.11.1 Time for Compliance . Contractor shall not commence Work under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this Section. In addition, Contractor shall not allow any subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the City that the subcontractor has secured all insurance required under this Section.
3.2.11.2 Minimum Requirements . Contractor shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement by the Contractor, its agents, representatives, employees or subcontractors.
Contractor shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage:
(A) Minimum Scope of Insurance . Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001); (2) Automobile Liability :
Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto); and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance.The policy shall not contain any exclusion contrary to the Agreement, including but not limited to endorsements or provisions limiting coverage for (1) contractual liability (including but not limited to ISO CG 24 26 or 21 29); or (2) cross liability for claims or suits by one insured against another. (B) Minimum Limits of Insurance . Contractor shall maintain limits no less than: (1) General Liability: $1,000,000 MINIMUM per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with general aggregate limit is used including, but not limited to, form CG 2503, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: $1,000,000 MINIMUM per accident for bodily injury and property damage; and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation limits as required by the Labor Code of the State of California.
Employer’s Liability limits of $1,000,000 MINIMUM per accident for bodily injury or disease.
Defense costs shall be paid in addition to the limits.
10.a
Packet Pg. 457
Attachment: Maintenance Services Agreement (4697 : Contract Award - Performance Construction & Painting) 23152.04000\42402786.1
(BB&K 2024)
- 7 -
(C) Notices; Cancellation or Reduction of Coverage . At least fifteen (15) days prior to the expiration of any such policy, evidence showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or materially reduced, Contractor shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. In the event any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, the City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by the City will be promptly reimbursed by Contractor or the City may withhold amounts sufficient to pay premium from Contractor payments. In the alternative, the City may suspend or terminate this Agreement.
3.2.11.3 Insurance Endorsements. The insurance policies shall contain the following provisions, or Contractor shall provide endorsements on forms supplied or approved by the City to add the following provisions to the insurance policies:
(A) General Liability. The general liability policy shall include or be endorsed (amended) to state that: (1) using ISO CG forms 20 10 and 20 37, or endorsements providing the exact same coverage, the City of Colton, its directors, officials, officers, employees, agents, and volunteers shall be covered as additional insured with respect to the Services or ongoing and complete operations performed by or on behalf of the Contractor, including materials, parts or equipment furnished in connection with such work; and (2) using ISO form 20 01, or endorsements providing the exact same coverage, the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents, and volunteers, or if excess, shall stand in an unbroke n chain of coverage excess of the Contractor’s scheduled underlying coverage. Any excess insurance shall contain a provision that such coverage shall also apply on a primary and noncontributory basis for the benefit of the City, before the City’s own primary insurance or self-insurance shall be called upon to protect it as a named insured. Any insurance or self -insurance maintained by the City, its directors, officials, officers, employees, agents, and volunteers shall be excess of the Contractor’s insurance and shall not be called upon to contribute with it in any way. Notwithstanding the minimum limits set forth in Section
3.2.11.2(B), any available insurance proceeds in excess of the specified minimum limits of coverage shall be available to the partie s required to be named as additional insureds pursuant to this Section 3.2.11.3(A).
(B) Automobile Liability . The automobile liability policy shall include or be endorsed (amended) to state that: (1) the City, its directors, officials, officers, employees, agents, and volunteers shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Contractor or for which the Contractor is responsible; and (2 ) the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents, and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Contractor’s scheduled underlying cove rage. Any insurance or self -insurance maintained by the City, its directors, officials, officers, employees, agents, and volunteers shall be excess of the Contractor’s insurance and shall not be called upon to contribute with it in any way.
Notwithstanding the minimum limits set forth in Section 3.2.11.2(B), any available insurance proceeds in excess of the specified minimum limits of coverage shall be available to the parties required to be named as additional insureds pursuant to this Section 3.2.11.3(B). (C) Workers’ Compensation and Employer’s Liability Coverage.
The insurer shall agree to waive all rights of subrogation against the City, its directors, officials,
10.a
Packet Pg. 458
Attachment: Maintenance Services Agreement (4697 : Contract Award - Performance Construction & Painting) 23152.04000\42402786.1
(BB&K 2024)
- 8 -
officers, employees, agents, and volunteers for losses paid under the terms of the insurance policy which arise from work performed by the Contractor. (D) All Coverages . Each insurance policy required by this Agreement shall be endorsed to state that: (A) coverage shall not be suspended, voided, reduced or canceled except after thirty (30) days (10 days for nonpayment of premium) prior written notice by certified mail, return receipt requested, has been given to the City; and (B) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its directors, officials, officers, employees, agents, and volunteers.
Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City, its officials, officers, employees, agents and volunteers, or any other additional insureds.
3.2.11.4 Separation of Insureds; No Special Limitations; Waiver of Subrogation. All insurance required by this Section shall contain standard separation of insureds provisions. In addition, such insurance shall not contain any special limitations on the scope of protection afforded to the City, its directors, officials, officers, employees, agents, and volunteers.
All policies shall waive any right of subrogation of the insurer against the City, its officials, officers, employees, agents, and volunteers, or any other additional insureds, or shall specifically allow Contractor or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Contractor hereby waives its own right of recovery against City, its officials, officers, employees, agents, and volunteers, or any other additional insureds, and shall require similar written express waivers and insurance clauses from each of its subcontractors.
3.2.11.5 Deductibles and Self-Insurance Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. Contractor shall guarantee that, at the option of the City, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its directors, officials, officers, employees, agents, and volunteers; or (2) the Contractor shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses.
3.2.11.6 Subcontractor Insurance Requirements . Contractor shall not allow any subcontractors to commence work on any subcontract relating to the work under the Agreement until they have provided evidence satisfactory to the City that they have secured all insurance required under this Section. If requested by Contractor, the City may approve different scopes or minimum limits of insurance for particular subcontractors. The Contractor and the City shall be named as additional insureds on all subcontractors’ policies of Commercial General Liability using ISO form 20 38, or coverage at least as broad.
3.2.11.7 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best’s rati ng no less than A:VIII, licensed to do business in California, and satisfactory to the City.
3.2.11.8 Verification of Coverage . Contractor shall furnish City with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms provided by the City if requested. All certificates and endorsements must be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time.
10.a
Packet Pg. 459
Attachment: Maintenance Services Agreement (4697 : Contract Award - Performance Construction & Painting) 23152.04000\42402786.1
(BB&K 2024)
- 9 -
3.2.11.9 Reporting of Claims . Contractor shall report to the City, in addition to Contractor’s insurer, any and all insurance claims submitted by Contractor in connection with the Services under this Agreement.
3.2.12 Safety. Contractor shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Contractor shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the natur e of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and lifesaving equipment and procedures; (B) instructions in accident prev ention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessa ry or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures.
3.2.13 Bonds.
3.2.13.1 Performance Bond. If required by law or otherwise specifically requested by City in Exhibit “C” attached hereto and incorporated herein by reference, Contractor shall execute and provide to City concurrently with this Agreement a Performance Bond in the amount of the total, not -to-exceed compensation indicated in this Agreement, and in a form provided or approved by the City. If such bond is required, no payment will be made to Contractor until it has been received and approved by the City.
3.2.13.2 Payment Bond . If required by law or otherwise specifically requested by City in Exhibit “C” attached hereto and incorporated herein by reference, Contractor shall execute and provide to City concurrently with this Agreement a Payment Bond in the amount of the total, not-to-exceed compensation indicated in this Agreement, and in a form provided or approved by the City. If such bond is required, no payment will be made to Contractor until it has been received and approved by the City.
3.2.13.3 Bond Provisions . Should, in City’s sole opinion, any bond become insufficient or any surety be found to be unsatisfactory, Contractor shall renew or replace the affected bond within 10 days of receiving notice from City. In the event the surety or Contractor intends to reduce or cancel any required bond, at least thirty (30) days prior written notice shall be given to the City, and Contractor shall post acceptable replacement bonds at least ten (10) days prior to expiration of the original bonds. No further payments shall be deemed due or will be made under this Agreement until any replacement bonds required by this Section are accepted by the City. To the extent, if any, that the total compensation is increased in accordance with the Agreement, the Contractor shall, upon request of the City, cause the amount of the bonds to be increased accordingly and shall promptly deliver satisfact ory evidence of such increase to the City. To the extent available, the bonds shall further provide that no change or alteration of the Agreement (including, without limitation, an increase in the total compensation, as referred to above), extensions of t ime, or modifications of the time, terms, or conditions of payment to the Contractor, will release the surety. If the Contractor fails to furnish any required bond, the City may terminate this Agreement for cause.
3.2.13.4 Surety Qualifications . Only bonds execut ed by an admitted surety insurer, as defined in Code of Civil Procedure Section 995.120, shall be accepted. The
10.a
Packet Pg. 460
Attachment: Maintenance Services Agreement (4697 : Contract Award - Performance Construction & Painting) 23152.04000\42402786.1
(BB&K 2024)
- 10 -
surety must be a California -admitted surety with a current A.M. Best’s rating no less than A:VIII and satisfactory to the City. If a Californi a-admitted surety insurer issuing bonds does not meet these requirements, the insurer will be considered qualified if it is in conformance with Section 995.660 of the California Code of Civil Procedure, and proof of such is provided to the City.
3.2.14 Accounting Records. Contractor shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Contractor shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Contractor shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement.
3.2.15 Work Sites.
3.2.15.1 Inspection Of Site . Contractor shall visit sites where Services are to be performed and shall become acquainted with all conditions affecting the Services prior to commencing the Services. Contractor shall make such examinations as it deems necessary to determine the condition of the work sites, its accessibility to materials, workmen and equipment, and to determine Contractor’s ability to protect existing surface and subsurface improvements. No claim for allowances–time or money–will be allowed as to such matters after commencement of the Services.
3.2.15.2 Field Measurements . Contractor shall make field measurements, verify field conditions and shall carefully compare such field measurements and conditions and other information known to Contractor with the Contract Documents, including any plans, specifications, or scope of work before commencing Services. Errors, inconsistencies or omissions discovered shall be reported to the City immediately and prior to performing any Services or altering the condition.
3.2.16 Loss and Damage. Contractor shall be responsible for all loss and damage which may arise out of the nature of the Services agreed to herein, or from the action of the elements, or from any unforeseen difficulties which may arise or be encountered in the prosecution of the Services until the same is fully completed and accepted by City.
3.2.17 Warranty. Contractor warrants all Services under the Contract (which for purposes of this Section shall be deemed to include unauthorized work which has not been removed and any non-conforming materials incorporated into the work) to be of good quality and free from any defective or faulty material and workmanship. Contractor agrees that for a period of one year (or the period of time specified elsewhere in the Contract or in any guarantee or warranty provided by any manufacturer or supplier of equipment or materials incorporated into the work, whichever is later) after the date of final acceptance, Contractor shall within ten (10) days after being notified in writing by the City of any defect in t he Services or non-conformance of the Services to the Contract, commence and prosecute with due diligence all Services necessary to fulfill the terms of the warranty at its sole cost and expense. Contractor shall act sooner as requested by the City in response to an emergency. In addition, Contractor shall, at its sole cost and expense, repair and replace any portions of the work (or work of other contractors) damaged by its defective Services or which becomes damaged in the course of repairing or replacing defective work. For any work so corrected, Contractor’s obligation hereunder to correct defective work shall be reinstated for an additional one year period, commencing with the date of
10.a
Packet Pg. 461
Attachment: Maintenance Services Agreement (4697 : Contract Award - Performance Construction & Painting) 23152.04000\42402786.1
(BB&K 2024)
- 11 -
acceptance of such corrected work. Contractor shall perform such tests as the City may require to verify that any corrective actions, including, without limitation, redesign, repairs, and replacements comply with the requirements of the Contract. All costs associated with such corrective actions and testing, including the removal, replacement, and reinstitution of equipment and materials necessary to gain access, shall be the sole responsibility of the Contractor. All warranties and guarantees of subcontractors, suppliers and manufacturers with respect to any portion of the work, whether express or implied, are deemed to be obtained by Contractor for the benefit of the City, regardless of whether or not such warranties and guarantees have been transferred or assigned to the City by separate agreement and Contractor agrees to enforce such warranties and guarantees, if necessary, on behalf of the City. In the event that Contractor fails to perform its obligations under this Section, or under any other warranty or guaranty under this Contract, to the reasonable satisfactio n of the City, the City shall have the right to correct and replace any defective or non -conforming work and any work damaged by such work or the replacement or correction thereof at Contractor's sole expense. Contractor shall be obligated to fully reimburse the City for any expenses incurred hereunder upon demand.
3.3 Fees and Payments.
3.3.1 Compensation. Contractor shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit “C” attached hereto and incorporated herein by reference. The total compensation shall not exceed Eighty-Nine Thousand Nine-Hundred and Fifty Dollars ($89,950.00) without written approval of the City Council. Extra Work may be authorized, as described below , and if authorized, will be compensated at the rates and manner set forth in this Agreement.
3.3.2 Payment of Compensation . Contractor shall submit to City a monthly itemized statement which indicates work completed and hours of Services rendered by Contractor. The statement shall describe the amount of Services and supplies provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. City shall, within 45 days of receiving such statement, review the statement and pay all approved charges thereon.
3.3.3 Deductions. City may deduct or withhold, as applicable, from each progress payment an amount necessary to protect City from loss because of: (1) stop payment notices as allowed by state law; (2) unsatisfactory prosecution of the Services by Contractor; (3) sums representing expenses, losses, or damages as determined by the City, incurred by the City for which Contractor is liable under the Agreement; and (4) any other sums which the City is entitled to recover from Contractor under the terms of the Agreement or pursuant to state law, including Section 1727 of the California Labor Code. The failure by the City to deduct any of these sums from a progress payment shall not constitute a waiver of the City's right to such sums.
3.3.4 Reimbursement for Expenses. Contractor shall not be reimbursed for any expenses unless authorized in writing by City.
3.3.5 Extra Work . At any time during the term of this Agreement, City may request that Contractor perform Extra Work. As used herein, “Extra Work” means any work which is determined by City to be necessary for the proper completion of the Project, but which the parties did not reasonably anticipate would be necessary at the execution of t his Agreement.
Contractor shall not perform, nor be compensated for, Extra Work without written authorization from City’s Representative.
10.a
Packet Pg. 462
Attachment: Maintenance Services Agreement (4697 : Contract Award - Performance Construction & Painting) 23152.04000\42402786.1
(BB&K 2024)
- 12 -
3.3.6 Prevailing Wages. Contractor is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on “public works” and “maintenance” projects. Since the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and since the total compensation is $1,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws. City shall provide Contractor with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Contractor shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Contractor’s principal place of business and at the project site. Contractor shall defend, indemnify and hold the City, its elected officials, offic ers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Contractor and all subcontractors to comply with all California L abor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (L abor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1). The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4.
3.3.7 Registration/DIR Compliance. If the Services are being performed as part of an applicable “public works” or “maintenance” project, and if the total compensation is $15,000 or more, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Contractor and all subcontractors performing such Services must be registered with the Department of Industrial Relations. Contractor shall maintain registration for the duration of the Project and require the same of any subcontractors, as applicable. This Project may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Contractor’ s sole responsibility to comply with all applicable registration and labor compliance requirements.
Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1. Any stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor that affect Contractor’s performance of Services, including any delay, shall be Contractor’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Contractor caused delay and shall not be compensable by the City. Contractor shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor.
3.4 Termination of Agreement.
3.4.1 Grounds for Termination . City may, by written notice to Contractor, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Contractor of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Contractor shall be compensated only for those services which have been adequately rendered to City, and Contractor shall be entitled to no further compensation. Contractor may not terminate this Agreement except for cause.
10.a
Packet Pg. 463
Attachment: Maintenance Services Agreement (4697 : Contract Award - Performance Construction & Painting) 23152.04000\42402786.1
(BB&K 2024)
- 13 -
3.4.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Contractor to provide all finished or unfinished Documents and Data and other information of any kind prepared by Contractor in connection with the performance of Services under this Agreement. Contractor shall be required to provide such document and other information within fifteen (15) days of the request.
3.4.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated.
3.5 General Provisions.
3.5.1 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose:
Contractor:
Performance Construction & Paining
9185 W. Rochelle
Las Vegas, NV 89147-7831
Attn: Patrick Carmell, Managing Member
City:
City of Colton
650 North La Cadena Drive
Colton, CA 92324
Attn: Brian A. Dickinson, Director of Public Works & Utility Services
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
3.5.2 Indemnification.
3.5.2.1 Scope of Indemnity . To the fullest extent permitted by law, Contractor shall defend, indemnify and hold the City, its officials, employees, agents and authorized volunteers free and harmle ss from any and all claims, demands, causes of action, suits, actions, proceedings, costs, expenses, liability, judgments, awards, decrees, settlements, loss, damage or injury of any kind, in law or equity, regardless of whether the allegations are false, fraudulent, or groundless, to property or persons, including wrongful death, (collectively, “Claims”) in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Contractor, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Contractor’s Services, the Project or this Agreement, including without limitation the payment of all e xpert witness fees, attorneys’ fees and other related costs and expenses. Notwithstanding the foregoing, to the extent required by Civil Code section 2782, Contractor’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
10.a
Packet Pg. 464
Attachment: Maintenance Services Agreement (4697 : Contract Award - Performance Construction & Painting) 23152.04000\42402786.1
(BB&K 2024)
- 14 -
the sole or active negligence or willful misconduct of the City or the City’s agents, servants, or independent contractors who are directly responsible to the City, or for defects in design furnished by those persons.
3.5.2.2 Additional Indemnity Obligations. Contractor shall defend, with counsel of City’s choosing and at Contractor’s own cost, expense and risk, any and all Claims covered by this section that may be brought or instituted against City or its officials, employees, agents and authorized volunteers. In addition, Contractor shall pay and satisfy any judgment, award or decree that may be rendered against City or its officials, employees, agents and authorized volunteers as part of any such claim, suit, action or other proceeding. Contractor shall also reimburse City for the cost of any settlement paid by City or its officials, employees, agents and authorized volunteers as part of any such claim, suit, action or other proceeding. Such reimbursement shall include payment for City’s attorney’s fees and costs, including expert witness fees. Contractor shall reimburse City and its officials, employees, agents and authorized volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Contractor’s obligation to indemnify shall survive expiration or termination of this Agreement, and shall not be restricted to insurance proceeds, if any, received by the City, its officials, employees, agents and authorized volunteers.
3.5.3 Governing Law; Government Code Claim Compliance . This Agreement shall be governed by the laws of the State of California. Venue shall be in San Bernardino County.
In addition to any and all contract requirements pertaining to notice s of and requests for compensation or payment for extra work, disputed work, claims and/or changed conditions, Contractor must comply with the claim procedures set forth in Government Code sections 900 et seq. prior to filing any lawsuit against the City. Such Government Code claims and any subsequent lawsuit based upon the Government Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to extra work, disputed work, claims, and/or changed conditions have been followed by Contractor. If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Contractor shall be barred from bringing and maintaining a valid lawsuit against the City.
3.5.4 Time of Essence. Time is of the essence for each and every provision of this Agreement.
3.5.5 City’s Right to Employ Other Contractors . City reserves right to employ other contractors in connection with this Project.
3.5.6 Successors and Assigns . This Agreement shall be binding on the successors and assigns of the parties.
3.5.7 Assignment or Transfer . Contractor shall not assign, hypothecate or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the City. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer.
3.5.8 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Contractor include all personnel, employees, agents, and subcontractors
10.a
Packet Pg. 465
Attachment: Maintenance Services Agreement (4697 : Contract Award - Performance Construction & Painting) 23152.04000\42402786.1
(BB&K 2024)
- 15 -
of Contractor, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augm ent, or describe the scope, content or intent of this Agreement.
3.5.9 Amendment; Modification. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
3.5.10 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel or otherwise.
3.5.11 No Third Party Beneficiaries. Except to the extent expressly provided for in Section 3.5.7, there are no intended third party beneficiaries of any right or obligation assumed by the Parties.
3.5.12 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
3.5.13 Prohibited Interests . Contractor maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Contractor, to solicit or secure this Agreement. Further, Contractor warrants that it has not paid nor has it agreed to pay any company or person, other than a bo na fide employee working solely for Contractor, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. Contractor further agrees to file, or shall cause its empl oyees or subcontractors to file, a Statement of Economic Interest with the City’s Filing Officer as required under state law in the performance of the Services. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
3.5.14 Cooperation; Further Acts . The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement.
3.5.15 Authority t o Enter Agreement. Contractor has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party.
3.5.16 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
3.5.17 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be modified by a writing signed by both parties.
10.a
Packet Pg. 466
Attachment: Maintenance Services Agreement (4697 : Contract Award - Performance Construction & Painting) 23152.04000\42402786.1
(BB&K 2024)
- 16 -
3.5.18 Federal Provisions. When funding for the Services is provided, in whole or in part, by an agency of the federal government, Contractor shall also fully and adequately comply with the provisions included in Exhibit “D” (Federal Requirements) attached hereto and incorporated herein by reference (“Federal Requirements”). With respect to any conflict between such Federal Requirements and the terms of this Agreement and/or the provisions of state law, the more stringent requirement shall control.
[SIGNATURES ON NEXT PAGE]
10.a
Packet Pg. 467
Attachment: Maintenance Services Agreement (4697 : Contract Award - Performance Construction & Painting) 23152.04000\42402786.1
(BB&K 2024)
- 17 -
SIGNATURE PAGE FOR MAINTENANCE SERVICES AGREEMENT
BETWEEN THE CITY OF COLTON
AND PERFORMANCE CONSTRUCTION & PAINTING
IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the 15th day of October, 2024.
CITY OF COLTON PERFORMANCE CONSTRUCTION &
PAINTING
SOLE OWNERSHIP
By: ____________________________ By: _________________________ William R. Smith Patrick Carmell
City Manager Managing Member
Attest:
____
Stephanie M. Vargas
Deputy City Clerk
Approved as to Form:
______________________________
Best Best & Krieger LLP
City Attorney
10.a
Packet Pg. 468
Attachment: Maintenance Services Agreement (4697 : Contract Award - Performance Construction & Painting) 23152.04000\42402786.1
(BB&K 2024)
Exhibit A-1
EXHIBIT “A”
SCOPE OF SERVICES
Furnish all the materials and labor necessary for the completion of:
Pool deck coating of approximately 11,875 sq. ft.
Work to include:
1. Provide Faithful Performance, Labor & Materials (Payment), and Maintenance & Warranty Bonds
2. Clean entire surface as required.
3. Grind areas as required.
4. Remove loose sections.
5. Repair cracks as necessary with epoxy fiberglass mesh.
6. Apply cementitious skim coat.
7. Apply texture.
8. Apply two coats of finish.
9. Clean work area and haul debris.
10.a
Packet Pg. 469
Attachment: Maintenance Services Agreement (4697 : Contract Award - Performance Construction & Painting) 23152.04000\42402786.1
(BB&K 2024)
Exhibit A-2
10.a
Packet Pg. 470
Attachment: Maintenance Services Agreement (4697 : Contract Award - Performance Construction & Painting) 23152.04000\42402786.1
(BB&K 2024)
Exhibit A-3
10.a
Packet Pg. 471
Attachment: Maintenance Services Agreement (4697 : Contract Award - Performance Construction & Painting) 23152.04000\42402786.1
(BB&K 2024)
Exhibit A-4
10.a
Packet Pg. 472
Attachment: Maintenance Services Agreement (4697 : Contract Award - Performance Construction & Painting) 23152.04000\42402786.1
(BB&K 2024)
Exhibit A-5
10.a
Packet Pg. 473
Attachment: Maintenance Services Agreement (4697 : Contract Award - Performance Construction & Painting) 23152.04000\42402786.1
(BB&K 2024)
Exhibit A-6
10.a
Packet Pg. 474
Attachment: Maintenance Services Agreement (4697 : Contract Award - Performance Construction & Painting) 23152.04000\42402786.1
(BB&K 2024)
Exhibit A-7
10.a
Packet Pg. 475
Attachment: Maintenance Services Agreement (4697 : Contract Award - Performance Construction & Painting) 23152.04000\42402786.1
(BB&K 2024)
Exhibit A-8
All work to be performed/installed in accordance with the manufacturer’s specifications.
Work to be in a timely and workers like manner. Approximately one week for completion.
Job to be left clean and free of debris. Does not include City fees, plans, perm its, hazardous waste testing or removal, items hidden from view or items not specified.
M.S.D.S’s, color charts, specifications and/or samples available upon request. Prices are based on prevailing wage rates.
All material is guaranteed to be as specified, and the above work to be performed in accordance with the drawings and specifications submitted for above work.
10.a
Packet Pg. 476
Attachment: Maintenance Services Agreement (4697 : Contract Award - Performance Construction & Painting) 23152.04000\42402786.1
(BB&K 2024)
Exhibit B-1
EXHIBIT “B”
SCHEDULE OF SERVICES
OCTOBER 16, 2024 – DECEMBER 31, 2025
10.a
Packet Pg. 477
Attachment: Maintenance Services Agreement (4697 : Contract Award - Performance Construction & Painting) 23152.04000\42402786.1
(BB&K 2024)
Exhibit C-1
EXHIBIT “C”
COMPENSATION
EIGHTY-NINE THOUSAND NINE-HUNDRED AND FIFTY DOLLARS AND NO CENTS ($89,950.00)
10.a
Packet Pg. 478
Attachment: Maintenance Services Agreement (4697 : Contract Award - Performance Construction & Painting) 23152.04000\42402786.1
(BB&K 2024)
Exhibit D-1
EXHIBIT “D”
FEDERAL REQUIREMENTS
CONTRACTOR IS REQUIRED TO PROVIDE THEIR COMPANY’S FEDERAL UEI (UNIQUE ENTITY ID). IF CONTRACTOR DOES NOT HAVE AN UEI NUMBER, CONTRACTOR CAN OBTAIN ONE AT SAM.GOV WEBSITE
10.a
Packet Pg. 479
Attachment: Maintenance Services Agreement (4697 : Contract Award - Performance Construction & Painting)
ITEM NO. 11
STAFF REPORT
DATE: OCTOBER 15, 2024
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: BILL SMITH, CITY MANAGER
PREPARED BY: VICTOR ORTIZ, ASSISTANT DIRECTOR OF PUBLIC WORKS AND
ENGINEERING
SUBJECT: APPROVE AND ADOPT A RESOLUTION TO APPROVE AWARD
OF CONTRACT TO PRESTIGE PAVING COMPANY FOR THE
CORPORATE YARD PAVING PROJECT, AND CORRESPONDING
BUDGET RESOLUTION, RESOLUTION NO. R-110-24.
RECOMMENDED ACTION
Staff recommends that the City Council take the following action:
1. Authorize the award of contract for the Corporate Yard Paving Project to Prestige Paving Company, as the lowest responsive and responsible bidder in the amount of $413,620.75.
2. Approve Resolution R -110-24 (Exhibit B) to amend Fiscal Year 2024/2025 Capital Improvement Budget.
BACKGROUND
The existing parking lot asphalt pavement and striping for the City of Colton Corporate Yard showed pavement failures and deteriorat ion from being approximately over 35 years old.
Generally, asphalt pavements are designed to last approximat ely 15 to 20 years. The grind and overlay pavement maintenance method will be able to prolong the life of the pavement in a very cost-effective way. The scope of work for this Project include s reconstruction of driveway, grind and overlay of the existing pavement with 2” thick rubberized asphalt and thermoplastic striping.
ISSUES/ANALYSIS
In accordance with Colton Municipal Code (CMC) Section 3.08.090, a request for Notice Inviting Formal Bids was published in The Press Enterprise on August 18, 2024, and August 23, 11 Packet Pg. 480
Staff Report to the Mayor and City Council
Contract Award - Prestige Paving Company
October 15, 2024
2024. A mandatory Pre -Bid Meeting and Job Walk was held on August 29, 2024. Seven (7) Bids were received from known paving contractors in Southern California. On September 19, 2024, the bids received were as follows:
BIDDER TOTAL BID AMOUNT
Prestige Paving Company, Inc. $ 413,620.75
Onyx Paving, Inc. $ 444,000.00
All American Asphalt $ 471,141.00
Hardy and Harper, Inc. $476,000.00
Marjani Builders, Inc. $ 447,765.00
Asphalt Fabric $ 522,961.00
Matich Corporation $ 545,049.00
Staff reviewed and evaluated all bids. The low bidder, Prestige Paving Company, Inc. met all the bid requirements. Staff recommends awarding the contract to the lowest responsive and responsible bidder, Prestige Paving Company, Inc. for $413,620.75 for the Corporate Yard Paving Project.
FISCAL IMPACTS
The total amount for engineering design and construction services for the Corporate Yard Paving Project including the 5% contingency is $434,301.79. This project will be jointly funded by the Water Utility ($218,000.00) and Host City Fund ($218,000.00).
Sufficient appropriations are included in the FY2024 -25 budget in Water Fund Operations Capital Improvement Account Number 521 -8100-8101-3890-0000-000. Resolution R -110-24 amends the FY2024 -25 budget to appropriate $218,000.00 from reserve balance to Host City Fund Capital Improvement Account Number 240 -2511-6211-3890-0000-000 to complete the funding necessary for the project. Sufficient reserve balance is available to appropriate.
ALTERNATIVES
1. Provide direction to staff.
ATTACHMENT
1. Exhibit A - Contract
2. Exhibit B - Resolution No. R-110-24
11 Packet Pg. 481
CONTRACT
29 CONTRACT
THIS CONTRACT is made this 15th day of October, 2024, in the County of San Bernardino, State of California, by and between the City of Colton, hereinafter called C ity, and Prestige Paving Company, hereinafter called Contractor. The City and the Contractor for the considerations stated herein agree as follows:
ARTICLE 1. SCOPE OF WORK . The Contractor shall perform all Work within the time stipulated the Contract and shall provide all labor, materials, equi pment, tools, ut ility services, and transportation to complete all of the Work re quired in strict complian ce with the Contract Documents as specified in Article 5 below for the following Project:
CORPORATE YARD PARKING LOT IMPROVEMENTS PROJECT
The Contractor and its surety shall be liable to the City for any damages arising as a result of the Contractor’s failure to comply with this obligation.
ARTICLE 2. TIME FOR COMPLETION . The Work shall be comm enced on the date stated in the City’s Notice to Proceed. The Contractor shall complete all Work required by the Contract Documents within Twenty-five (25) Working Days from the commencement date stated in the Notice to Proceed. By its signature hereunder, Contractor agrees the time for completion set forth above is adequate and reasonable to complete the Work.
ARTICLE 3. CONTRACT PRICE . The City shall pay to the C ontractor as full compensation for the performance of the Contra ct, subject to any additions or deductions as provided in the Contract Documents, and including all applicable taxes and costs.
ARTICLE 4. LIQUIDATED DAMAGES . In accordance with Government Code section 53069.85, it is agreed that the Contractor will pa y the City the sum of $1,000.00 for each and every calendar day of delay beyond the time pres cribed in the Contract Documents for finishing the Work, as Liquidated Damages and not as a penalty or forfeiture. In the event this is not paid, the Contractor agrees the City may deduct that amount from any money due or that may become due the Contractor under the Contract. This Artic le does not exclude recovery of other damages specified in the Contract Documents.
ARTICLE 5. COMPONENT PARTS OF THE CONTRACT. The “Contract Documents” include the following:
Notice Inviting Bids
Instructions to Bidders
Contractor's Bid Forms
Contractor’s Certificate Regarding Workers’ Compensation Bid Bond
11.a
Packet Pg. 482
Attachment: Exhibit A - Contract (4693 : Contract Award - Prestige Paving Company)
CONTRACT
30 Designation of Subcontractors
Information Required of Bidders
Non-Collusion Affidavit form
Contract
Performance Bond
Payment (Labor and Materials) Bond
General Conditions
Special P
rovisions (or Special Conditions)
Technical Specifications
Greenbook Standard Specifications (Sections 1-9 Excluded) Addenda
Plans and Contract Drawings
Approved and fully executed change orders
Any other documents contained in or incorporated into the Contract The Contactor shall complete the Work in strict accordance with a ll of the Contract Documents.
All of the Contract Documents are intended to b e complementary. Work required by one of the Contract Documents and not by others shall be done as if required by all. This Contract shall supersede any prior agreement of the parties.
ARTICLE 6. PROVISIONS REQUIRED BY LAW . Each and every provision of law required to be included in these Contrac
t Documents shall be deemed to be included in these
Contract Documents. The Contractor shall comply with all requirements of applicable federal, state and local laws, rules and regulations, including, but not lim ited to, the provisions of the California Labor Code and California Public Contract Code which are applicable to this Project.
ARTICLE 7. INDEMNIFICATION . Contractor shall provide inde mnification as set forth in the General Conditions.
ARTICLE 8. PREVAILING WAGES . Contractor shall be require d to pay the prevailing rate of wages in accordan
ce with the Labor Code which such rates shall be made available at Public Works Department or may be ob tained online at http//www.dir.ca .gov/dlsr. and which must be posted at the job site. If the Work involves fede ral funds or otherwise re quires compliance with the Davis-Bacon Fair Labor Standards Act, the Contractor and all its subcontractors shall comply with the higher of the state or federal prevailing wage rates.
IN WITNESS WHEREOF, this Contract has b een duly executed by the above-named parties, on the day and year above written.
11.a
Packet Pg. 483
Attachment: Exhibit A - Contract (4693 : Contract Award - Prestige Paving Company)
CONTRACT
31 CITY OF COLTON
By:
Signature
Name
Title
Attest:
City Clerk
Recommended By:
Signature
Name
Title
[NAME OF CONTRACTOR]
By:
Signature
Name
Title
License Number
11.a
Packet Pg. 484
Attachment: Exhibit A - Contract (4693 : Contract Award - Prestige Paving Company)
11.a
Packet Pg. 485
Attachment: Exhibit A - Contract (4693 : Contract Award - Prestige Paving Company)
11.a
Packet Pg. 486
Attachment: Exhibit A - Contract (4693 : Contract Award - Prestige Paving Company)
11.a
Packet Pg. 487
Attachment: Exhibit A - Contract (4693 : Contract Award - Prestige Paving Company)
11.a
Packet Pg. 488
Attachment: Exhibit A - Contract (4693 : Contract Award - Prestige Paving Company)
11.a
Packet Pg. 489
Attachment: Exhibit A - Contract (4693 : Contract Award - Prestige Paving Company)
11.a
Packet Pg. 490
Attachment: Exhibit A - Contract (4693 : Contract Award - Prestige Paving Company)
11.a
Packet Pg. 491
Attachment: Exhibit A - Contract (4693 : Contract Award - Prestige Paving Company)
11.a
Packet Pg. 492
Attachment: Exhibit A - Contract (4693 : Contract Award - Prestige Paving Company)
11.a
Packet Pg. 493
Attachment: Exhibit A - Contract (4693 : Contract Award - Prestige Paving Company)
11.a
Packet Pg. 494
Attachment: Exhibit A - Contract (4693 : Contract Award - Prestige Paving Company)
11.a
Packet Pg. 495
Attachment: Exhibit A - Contract (4693 : Contract Award - Prestige Paving Company)
11.a
Packet Pg. 496
Attachment: Exhibit A - Contract (4693 : Contract Award - Prestige Paving Company)
11.a
Packet Pg. 497
Attachment: Exhibit A - Contract (4693 : Contract Award - Prestige Paving Company)
11.a
Packet Pg. 498
Attachment: Exhibit A - Contract (4693 : Contract Award - Prestige Paving Company)
11.a
Packet Pg. 499
Attachment: Exhibit A - Contract (4693 : Contract Award - Prestige Paving Company)
11.a
Packet Pg. 500
Attachment: Exhibit A - Contract (4693 : Contract Award - Prestige Paving Company)
11.a
Packet Pg. 501
Attachment: Exhibit A - Contract (4693 : Contract Award - Prestige Paving Company)
11.a
Packet Pg. 502
Attachment: Exhibit A - Contract (4693 : Contract Award - Prestige Paving Company)
11.a
Packet Pg. 503
Attachment: Exhibit A - Contract (4693 : Contract Award - Prestige Paving Company)
11.a
Packet Pg. 504
Attachment: Exhibit A - Contract (4693 : Contract Award - Prestige Paving Company)
11.a
Packet Pg. 505
Attachment: Exhibit A - Contract (4693 : Contract Award - Prestige Paving Company)
11.a
Packet Pg. 506
Attachment: Exhibit A - Contract (4693 : Contract Award - Prestige Paving Company)
11.a
Packet Pg. 507
Attachment: Exhibit A - Contract (4693 : Contract Award - Prestige Paving Company)
1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
21 22
23 24
25 26
27 28
RESOLUTION NO. R-110-24
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF COLTON,
CALIFORNIA AMENDING THE FISCAL YEAR 2024 -2025 BUDGET FOR AN ADDITIONAL $218,000 TO THE CAPITAL IMPROVEMENT HOST CITY FEE
ACCOUNT FOR THE CORPORATE YARD PAVING PROJECT
WHEREAS the City of Colton is a municipal corporation duly organized and existing pursuant to the Constitution and laws of the State of California (“City”); and
WHEREAS, the budget for the Fiscal Year 2024-25 has been approved by City Council, and now must be amended to increase the appropriation in the Public Works, Host City Fees, Capital Improvement Project Account for the Corporate Yard Paving Project; and,
WHEREAS, the City intends to improve and rehabilitate the failing and deteriorated asphalt pavement of the City’s Corporate Yard parking lot; and
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Colton:
Section 1 The above recitals are true and correct.
Section 2 The City Council authorizes the following amendment for the Fiscal Year 2024/2025 budget:
Appropriate $218,000.00 from reserve balance in Host City Fund to account number 240-2511-6211-3890-0000-000 for the construction of Corporate Yard Paving Project.
PASSED, APPROVED AND ADOPTED THIS 15th DAY OF OCTOBER 2024
_______________________________
FRANK J. NAVARRO
Mayor
ATTEST:
______________________________
STEPHANIE VARGAS
Deputy City Clerk
11.b
Packet Pg. 508
Attachment: Exhibit B - Resolution No. R-110-24 (4693 : Contract Award - Prestige Paving Company)
ITEM NO. 12
STAFF REPORT
DATE: OCTOBER 15, 2024
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: BILL SMITH, CITY MANAGER
PREPARED BY: BILL SMITH, CITY MANAGER
SUBJECT: APPROVE AND ADOPT A RESOLUTION TO APPROVE A
CONTRACT AWARD TO ROBERT DELOACH FOR SERVICES AS
INTERIM DIRECTOR OF PUBLIC WORKS & UTILITY SERVICES,
RESOLUTION NO. R-108-24.
RECOMMENDED ACTION
Staff recommends that the City Council take the following action:
Adopt Resolution No. R-108-24, which involves taking the following action in the order listed:
1. Appoints Robert DeLoach as the Interim Public Works & Utilities Director pending the recruitment, selection, and employment of a permanent Director.
2. Authorizes the City Manager to enter into an Employment Agreement with Robert DeLoach as Interim Public Works & Utilities Director.
BACKGROUND
The City's Public Works & Utilities Director position is currently vacant, and staff is working to conduct a recruitment for a new director . This recruitment is anticipated to take 3 -4 months to complete. To ensure the continuity of operations and optimal succession planning, the City Manager intends to utilize an interim assignment of a Public Works & Utilities Director, who will oversee the department temporarily until a permanent director is hired.
Robert DeLoach has over 3 5 years of municipal & private experience in administration of utilities and public works. Mr. DeLoach served as Interim Director of Public Works and Utilities Services for the City of Colton, from May 2020 to March 2021.
12 Packet Pg. 509
Staff Report to the Mayor and City Council
Contract Award - Robert DeLoach
October 15, 2024
As a CalPERS retiree, Mr. DeLoach can only work 960 hours in a fiscal year for CalPERS contracting agencies. Further, according to the City's published salary schedule, he cannot be paid more than what the City would otherwise pay a person filling the Pu blic Works & Utilities Director position.
Under applicable law, the City Council must pass a resolution that makes certain findings before it can employ a CalPERS retiree on an interim basis. The attached resolution makes the requisite findings, authoriz es the appointment of Robert DeLoach as Interim Public Works & Utilities Director, and authorizes the City Manager to enter into an employment agreement with Mr.
DeLoach, a copy of which is enclosed herein for the City Council's review. Once approved and signed by the City Manager, a copy of the employment agreement will remain on file in the City Clerk's Office.
ISSUES/ANALYSIS
Given Mr. DeLoach’s experience in the profession, combined with his familiarity with Colton, through his previous assignment, t his makes him ideally suited to serve in this role, until a permanent director can be appointed.
FISCAL IMPACTS
Mr. DeLoach would be paid an hourly rate of $1 26.75 per hour, which is consistent with the salary range for the Public Works & Utilities Dire ctor position. He would not be entitled to any benefits, vacation or holidays.
ALTERNATIVES
1. City Council may provide alternative direction to staff.
ATTACHMENT
1. Employment Contract - Robert DeLoach2 - BBK
2. 241015 Resolution Appointing Interim Director - BBK
12 Packet Pg. 510
-2- 23152.06030\26503759. I
AGREEMENT FOR
INTERIM PUBLIC WORKS & UTILITIES DIRECTOR
SERVICES
THIS AGREEMENT is made and entered into this 15th day of October 2024 by and between the City of Colton ("CITY") and Robert DeLoach ("EMPLOYEE"). In consideration of the mutual covenants and agreements set forth herein, the Parties agree as follows:
RECITALS
This Agreement is made and entered into with respect to the following facts:
A. CITY seeks to engage EMPLOYEE on an interim basis to serve in the position of Interim Public Works & Utilities Director in accordance with the terms set forth in this Agreement; and
B. EMPLOYEE desires to accept employment as Interim Public Works & Utilities Director in consideration of and subject to the terms, conditions and benefits s et forth in this Agreement; and
C. EMPLOYEE represents that he is a retired annuitant of CalPERS within the meaning of Government Code §§ 7522.56 and 21221(h) ("Statutes") and acknowledges that his compensation is statutorily limited as provided in Government Code § 2122l(h). EMPLOYEE acknowledges that he can work up to 960 hours, collectively, for the CITY, a State agency or other CalPERS contracting agencies (collectively "CalPERS Agencies") during the CITY's 2024-2025 fiscal year. EMPLOYEE represents that he has not received unemployment compensation from any CalPERS Agencies during the 12 -month period preceding the effective date of this Agreement. EMPLOYEE further represents that his CalPERS retirement date became effective prior to the 180 -day period preceding the effective date of this Agreement; and
D. CITY has determined that it is necessary to hire EMPLOYEE, a retired annuitant, because the position of Interim Public Works & Utilities Director requires special skills, and EMPLOYEE, by virtue of his experience has those special skills.
NOW, THEREFORE, CITY and EMPLOYEE, in consideration of the mutual covenants and agreements herein contained, agree as follows:
1. DESIGNATION OF INTERIM PUBLIC WORKS & UTILITIES DIRECTOR .
In accordance with Resolution No. R -108-24, EMPLOYEE is appointed Interim Public Works & Utilities Director of the CITY under the terms of this Agreement.
2. POSITION AND DUTIES . EMPLOYEE has been appointed by the City Council as Interim Public Works & Utilities Director of the City to perform, on a basis set forth below, the duties and functions pertaining to the Public Works & Utilities Director position, and to perform other legally permissible duties and such functions as the City Manager shall from time to time assign. The City Manager shall have the authority to determine the specific duties and functions,
12.a
Packet Pg. 511
Attachment: Employment Contract - Robert DeLoach2 - BBK (4710 : Contract Award - Robert DeLoach) -2- 23152.06030\26503759. I
h
which EMPLOYEE shall perform under this Agreement and the mean s and manner by which EMPLOYEE shall perform those duties and functions. EMPLOYEE agrees to devote all o f his business time, sk ill attention, and best efforts to the discharge of the duties and functions assigned to him by the City Manager.
3. TERM; TERMINATION AND AT-WILL STATUS.
This Agreement shall become effective upon the date executed by both EMPLOYEE and the City Manager, which date shall be the date first referenced above. EMPLOYEE shall commence the performance of h is duties as the Interim Public Works & Utilities Director on Wednesday October 16, 20 24, or at such later date as the parties hereto shall agree in writing (“Commencement Date"). This Agreement shall expire as of the first of the following to occur :
(i) Upon the employment commenc ement date of a permanent Public Works & Utilities Director employed by CITY; (ii) upon EMPLOYEE working his 960th hour for all CalPERS Agencies during fiscal year 2024-2025 or his 960th hour in any subsequent fiscal year; or (iii) upon termination of the Agreement by either EMPLOYEE or CITY as provided below.
EMPLOYEE acknowledges that he is an at -will, temporary employee of CITY who shall serve at the pleasure of the City Manager at all times during the period of h is service hereunder and shall be subject to termination by City Manager at any time without advance notice and without cause. The terms of CITY's personnel rules, policies, regulations, procedures, ordinances, and resolutions regarding City Administrative Personnel (collectively "Personnel Policies"), as they may be amended or supplemented from time to time, shall not apply to EM PLOYEE, and nothing in this Agreement is intended to, or does, confer upon EMPLOYEE any right to any property interest in continued employment, or any due process right to a hearing before or after a decision by the City Manager to terminate h is employment. Nothing contained in this Agreement shall in any way prevent, limit or otherwise interfere with the right of CITY to terminate the services of EMPLOYEE and nothing in this Agreement shall prevent, limit or otherwise interfere with the right of EMPOYEE to resign at any time from this position with CITY.
4. COMPENSATION. The CITY agrees to provide the following compensation to EMPLOYEE for the services of Interim Public Works & Utilities Director :
CITY agrees to pay to EMPLOYEE for services rendered under this Agreement, the hourly rate of One Hundred Twenty Six Dollars and Seventy Five Cents ($126.75). The City shall not pay for vacation or holidays, nor shall EMPLOYEE be entitled to any other fringe benefits.
5. ABUSE OF OFFICE. Pursuant to Government Code Sections 53243, 53243.1 and 53243.2, if EMPLOYEE is convicted of a crime involving an abuse of his/her office or position, all of the following shall apply: (1) if EMPLOYEE is provided with administrative leave pay pending an investigation, EMPLOYEE shall be required to fully reimburse City such amounts pai d; (2) if City pays for the criminal legal defense of EMPLOYEE (which would be in its sole discretion, as it is generally not obligated to pay for a criminal defense), EMPLOYEE shall be required to fully reimburse City such amounts paid; and (3) if this Ag reement is terminated, any Severance Pay and Severance Benefits related to the termination that EMPLOYEE may receive
12.a
Packet Pg. 512
Attachment: Employment Contract - Robert DeLoach2 - BBK (4710 : Contract Award - Robert DeLoach) -3- 23 l 52.06030\26503759.l
from City Hall, be fully reimbursed to City or void if not yet paid to EMPLOYEE. For purpose of this Section, abuse of office or position means either: (1) an abuse of public authority, including waste fraud, and violation of the law under color of authority; or (2) a crime against public justice including, but not limited to a crime described in Title 7 (commencing with Section 92) of Part 1 of the Penal Code.
Notwithstanding the above, it is understood that EMPLOYEE is a CalPERS retired annuitant employed pursuant to Government Code sections 7522.56 and 21221(h) and, accordingly, shall not receive any benefits, incentive, and compensation in lieu of benefits or any other forms of compensation in addition to the hourly rate set forth in Section 4 of this Agreement.
6. NOTICE. Notices required pursuant to this Agreement shall be given by personal service upon the party to be notified or by delivery of same to the custody of the United States Postal Service, or its lawful successor, postage prepared and addressed as follows:
CITY
City of Colton
650 North La Cadena Drive
Colton, CA 92324
Attention: William R. Smith, City Manager
EMPLOYEE
Robert DeLoach
[Address on File]
7. HOURS OF WORK . EMPLOYEE shall devote the time necessary to adequately perform his duties as Interim Public Works & Utilities Director. The parties anticipate that EMPLOYEE will work a sufficient number of hours per week allocated between regular business hours and hours outside of regular business hours incl uding, without limitation, attendance at regular and special City Council meetings, Utilities Commission meetings, community events and other CITY functions as the City Manager may direct. However, in no event shall EMPLOYEE be required to work in excess of 960 hours in fiscal year 2024-2025 and 960 hours per each subsequent fiscal year for CITY, including hours worked for other CalPERS Agencies during such fiscal years.
It is the intent of the parties to compensate EMPLOYEE only to the extent permitted under the Statutes and corresponding CalPERS regulations and policy statements. The Rate of Pay set forth above is based on the salary limitations established by CalPERS in accordance with Section 21221(h), which provides that the Rate of Pay shall be no less than the minimum or greater than the maximum hourly rate for the Public Works & Utilities Director position as listed on the City's publicly available pay schedule.
EMPLOYEE will comply with all applicable CalPERS regulations governing employment after retirement, including the recordation and reporting of all hours worked for CITY to CalPERS as may be required. CITY shall assist in any such reporting obligations to CalPERS.
Additionally, EMPLOYEE shall keep CITY continually appraised of any hours worked by EMPLOYEE for other CalPERS Agencies during the term of this Agreement.
12.a
Packet Pg. 513
Attachment: Employment Contract - Robert DeLoach2 - BBK (4710 : Contract Award - Robert DeLoach) -4- 2315 2.06030\26503759.l
8. WAIVER. No waiver of any provision of this Agreement shall be deemed or shall constitute a waiver of any other provision whether or not similar, nor shall any such waiver constitute a continuing or subsequent waiver of the same provision. No waiver shall be bindin g, unless executed in writing by the party making the waiver.
9. ENTIRE AGREEMENT . This Agreement constitutes the entire Agreement of the parties considering the subject matter hereof and all prior agreements or understanding, oral or written, are hereby merged herein. This Agreement shall not be amended in any way except by a writing expressly purporting to be such an amendment, signed, and acknowledged by both of the parties thereto. If any portion or provision hereof is held to be unconstitutional, invalid, or unenforceable, the remainder of this Agreement or portion thereof shall be deemed severable and shall be effective and shall remain in full force and effect.
CITY OF COLTON
By: Date:
William R. Smith, City Manager
EMPLOYEE
By: Date:
Robert DeLoach
12.a
Packet Pg. 514
Attachment: Employment Contract - Robert DeLoach2 - BBK (4710 : Contract Award - Robert DeLoach) -4- 2315 2.06030\26503759.l
12.a
Packet Pg. 515
Attachment: Employment Contract - Robert DeLoach2 - BBK (4710 : Contract Award - Robert DeLoach) 1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
21 22
23 24
25 26
27 28
RESOLUTION NO. R-108-24
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF COLTON
APPOINTING ROBERT DELOACH AS INTERIM DIRECTOR OF PUBLIC WORKS
AND UTILITY SERVICES AND APPROVING EMPLOYMENT CONTRACT
WHEREAS, Government Code Section 21221(h) permits the City Council to appoint a California Public Employees’ Retirement System (“CalPERS”) retiree to a vacant position requiring specialized skills during recruitment for a permanent appointment, and provides that s uch appointment will not subject the retired person to reinstatement from retirement or loss of benefits so long as it is a single appointment that does not exceed 960 hours in a fiscal year; and
WHEREAS, the position of Director of Public Works and Utility Services is currently vacant; and
WHEREAS, to ensure the efficient continued operation of the City’s Public Works & Utilities Department, the City Council desires to retain the services of Robert DeLoach, a retired member of CalPERS, to serve as Interim Director of Public Works and Utility Services, effective Wednesday, October 16, 2024; and
WHEREAS, Robert DeLoach has extensive experience in municipal employment with public utilities; and
WHEREAS, pending the recruitment, selection and emp loyment of a Director of Public Works and Utility Services, the City desires to appoint Robert DeLoach as Interim Director of Public Works and Utility Services , pursuant to the authority provided under Government Code Section 21221(h), to provide the leadership, managerial and organization skills necessary to help manage the City’s Public Works & Utilities Department effectively and efficiently; and
WHEREAS, an appointment under Government Code section 21221(h) requires an active, publicly posted recruitment for a permanent replacement; and
WHEREAS, the recruitment for the Director of Public Works and Utility Services position will be posted at https://www.governmentjobs.com/careers/coltonca no later than the day that Robert DeLoach commences his appointment as Director of Public Works and Utility Services on an interim basis; and
WHEREAS, this Government Code Section 21221(h) appointment shall only be made once and therefore will end on the date immediately preceding the date on which
12.b
Packet Pg. 516
Attachment: 241015 Resolution Appointing Interim Director - BBK (4710 : Contract Award - Robert DeLoach) 1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
21 22
23 24
25 26
27 28
- 2 -
the regular appointment to the vacant position of Director of Public Works and Util ities commences his or her employment or, if earlier, the date that this appointment is terminated by the City or Robert DeLoach; and
WHEREAS, it is understood by Robert DeLoach and the City that the combined total hours to be served by Robert DeLoach in any fiscal year for all CalPERS employers shall not exceed the 960 hour limitation set forth in California Government Code Section 21221(h); and
WHEREAS, the compensation paid to retirees cannot be less than the minimum nor exceed the maximum monthly base salary paid to other employees performing comparable duties as listed on the City’s publicly available pay schedule , divided by 173.333 to equal the hourly rate; and
WHEREAS, the monthly salary for the Director of Public Works and Utilities position is $21,969.68 and the hourly equivalent is $126.75; and
WHEREAS, the hourly rate to be paid to Robert DeLoach for his services as Director of Public Works and Utilities on an interim basis shall be $126.75; and
WHEREAS, Robert DeLoach has not and will not receive any other benefit, incentive compensation in lieu of benefits or any other form of compensation in addition to the hourly pay rate; and
WHEREAS, the City Council has reviewed a proposed employment agreement by and between Robert DeLoach and the City of Colton.
NOW THEREFORE, BE IT RESOLVED, DECLARED, DETERMINED AND ORDERED by the City Council of the City of Colton, California, as follows:
SECTION 1. As required by Government Code Section 21221(h), the City Council makes the following findings:
(A) All facts set forth in the Recitals to this Resolution are true and correct.
(B) Robert DeLoach has the specialized skills needed to perform the work required of the Interim Director of Public Works and Utility Services until a permanent Director of Public Works and Utility Services is appointed and thereafter begins his or her service.
12.b
Packet Pg. 517
Attachment: 241015 Resolution Appointing Interim Director - BBK (4710 : Contract Award - Robert DeLoach) 1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
21 22
23 24
25 26
27 28
- 3 -
(C) It is in the best interests of the City of Colton to enter into an employment agreement with and to appoint Robert DeLoach as Interim Director of Public Works and Utility Services for the City of Colton pursuant to the authority provided under Government Code Section 21221(h).
SECTION 2. Robert DeLoach is hereby appointed as Interim Director of Public Works and Utility Services of the City of Colton in accordance with Government Code Section 21221(h) and with the provisions of the employment agreement on file with the City Clerk.
SECTION 3. The employment agreement with Robert DeLoach, a copy of which is on file with the City Clerk, is hereby approved by the City Council of the City of Colton, and effective Wednesday, October 16, 2024.
SECTION 4. The City Manager is authorized to execute said agreement on behalf of the City of Colton, with such technical amendments as may be deemed appropriate by the City Manager and City Attorney.
PASSED, APPROVED AND ADOPTED this 15th day of October 2024.
______________________________
Frank Navarro, Mayor
ATTEST:
_______________________________
Stephanie Vargas, Chief Deputy City Clerk
12.b
Packet Pg. 518
Attachment: 241015 Resolution Appointing Interim Director - BBK (4710 : Contract Award - Robert DeLoach)
ITEM NO. 13
STAFF REPORT
DATE: OCTOBER 15, 2024
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: BILL SMITH, CITY MANAGER
PREPARED BY: VICTOR ORTIZ, ASSISTANT DIRECTOR OF PUBLIC WORKS AND
ENGINEERING
SUBJECT: APPROVE CONTRACT AWARD FOR THE CONCRETE TANK
FOUNDATION DEMOLITION PROJECT TO UNLIMITED
ENVIRONMENTAL INC.
RECOMMENDED ACTION
Staff recommends that the City Council take the following action:
Award of construction contract to Unlimited Environmental Inc. as the lowest responsive and responsible bidder for the Concrete Tank Foundation Demolition Project for $224,000.
BACKGROUND
The concrete water tank, known as Rialto Reservoir I, was commissioned by the Works Progress Administration and constructed in 1934. The tank was decommissioned and has been out of functional use and service since the early 1990’s due to a leak. The tank does not meet the current seismic and safety codes due to the age and material of the structure.
On September 5, 2023, a construction contract was awarded to Resource Environmental Inc. for the demolition of the concrete reservoir . The scope of the work is to completely remove and dispose of the entire concrete tank. During demolition and excavation , suspected asbestos - containing materials was reported. A hazardous material assessment and asbestos survey was conducted on the project site by Ecologics Laboratories in February 2024 to verify collected materials and identif y if they fall within the regulatory authority of EPA, OSHA, Cal -OSHA or the SCAQMD. Multiple methods of testing were provided and findings show visible asbestos on the lining of the foundation. Due to substantial change in the scope, staff recommended to re-bid the remaining work which is the removal of the contaminated reservoir foundation.
13 Packet Pg. 519
Staff Report to the Mayor and City Council
Contract Award - Unlimited Environmental Inc.
October 15, 2024
ISSUES/ANALYSIS
In accordance with Colton Municipal Code (CMC) Section 3.08.090, staff solicited and received bids for the Concrete Tank Foundation Demolition Project. The bid was advertised in the Press Enterprise newspaper on July 6, 2024, and July 10, 2024. The sealed bid was opened on August 15, 2024. The bids received are as follows:
1. Interior Demolition, Inc. $125,000.00*
2. Unlimited Environmental, Inc. $224,000.00
3. Standard Demolition Inc. $270,000.00
4. Resource Environmental Inc. $350,000.00
5. Integrated Demolition and Remediation $796,750.00
*Non-responsive bid
On August 19, 2024, Interior Demolition, Inc. requested to withdraw their bid due mathematical clerical error on their bid proposal. Pursuant to Public Contract Code sections 510 0 through 5107 bidders is allowed to withdraw their bid if they can establish to the satisfaction of public entity that a mistake was made. Staff evaluated and reviewed each submitted bid. Staff recommends award of the construction contract to the lowest responsive and responsible bidder, Unlimited Environmental, Inc., for $224,000.00 for the Concrete Tank Foundation Demolition Project
FISCAL IMPACTS
Sufficient appropriations for the Concrete Tank Foundation Demolition Project are available in the FY202 4-25 budget in Water Fund Capital Improvement Account #521 -8100-8101-3890- 0000-000.
ALTERNATIVES
1. Provide alternative direction to staff.
ATTACHMENT
1. Contract
13 Packet Pg. 520
CONTRACT
27 CONTRACT
THIS CONTRACT is made t his _____ day of _________, 20 24, in the County of San Bernardino, State of California, by and between the City of Colton, hereinafter called City, and ______________________________, hereinafter called Contractor. The City and the Contractor for the considerations stated herein agree as follows:
ARTICLE 1. SCOPE OF WORK . The Contractor shall perform all Work within the time stipulated the Contract and shall provide all labor, materials, equipment, tools, utility services, and transportation to complete all of the Work required in strict com pliance with the Contract Documents as specified in Article 5 below for the following Project:
CONCRETE TANK FOUNDATION DEMOLITION PROJECT
The Contractor and its surety shall be liable to the City for any damages arising as a result of the Contractor’s failure to comply with this obligation.
ARTICLE 2. TIME FOR COMPLETION. The Work shall be commenced on the date stated in the City’s Notice to Proceed. The Contractor shall complete all Work required by the Contract Documents within NINETY (90) calendar days from the commencement date stated in the Notice to Proceed. By its signature hereunder, Contractor agrees the time for completion set forth above is adequate and reasonable to complete the Work.
ARTICLE 3. CONTRACT PRICE. The City shall pay to the Contractor as full compensation for the performance of the Contract, subject to any additions or deductions as provided in the Contract Documents, and including all applicable taxes and costs, the sum of ____________________________________________________________ Dollars ($_________________________________). Payment shall be made as set forth in the General Conditions.
ARTICLE 4. LIQUIDATED DAMAGES . I n accordance with Government Code section 53069.85, it i s agreed that the Contractor will pay the City the sum of $1,000.00 for each and every calendar day of delay beyond the time prescribed in the Contract Documents for finishing the Work, as Liquidated Damages and not as a penalty or forfeiture. In the event this is not paid, the Contractor agrees the City may deduct that amount from any money due or that may become due the Contractor under the Contract. This Article does not exclude recovery of other damages specified in the Contract Documents.
ARTICLE 5. COMPONENT PARTS OF THE CONTRACT . The “Contract Documents” include the following:
Notice Inviting Bids
Instructions to Bidders
Contractor's Bid Forms
Contractor’s Certificate Regarding Workers’ Compensation Bid Bond
Designation of Subcontractors
Information Required of Bidders
13.a
Packet Pg. 521
Attachment: Contract (4652 : Contract Award - Unlimited Environmental Inc.)
CONTRACT
28 Non-Collusion Affidavit form
Contract
Performance Bond
Payment (Labor and Materials) Bond
General Conditions
Special Provisions (or Special Conditions)
-DBE
Technical Specifications
Greenbook Standard Specifications (Sections 1-9 Excluded) Addenda
Plans and Contract Drawings
Approved and fully executed change orders
Any other documents contained in or incorporated into the Contract The Contactor shall complete the Work in strict accordance with all of the Contract Documents.
All of the Contract Documents are intended to be complementary. Work required by one of the Contract Documents and not by others shall be done as if required by all. This Contract shall supersede any prior agreement of the parties.
ARTICLE 6. PROVISIONS REQUIRED BY LAW. Each and every provision of law required to be included in th ese Contract Documents shall be deemed to be included in these Contract Documents. The Contractor shall comply with all requirements of applicable federal, state and local laws, rules and regulations, including, but not limited to, the provisions of the California Labor Code and California Public Contract Code which are applicable to this Project.
ARTICLE 7. INDEMNIFICATION. Contractor shall provide indemnification as set forth in the General Conditions.
ARTICLE 8. PREVAILING WAGES. Contractor shall be required to pay the prevailing rate of wages in accordance with the Labor Code which such rates shall be made available at Public Works Department or may be obtained online at http//www.dir.ca.gov/dlsr. and which must be posted at the job site. If the Work involves federal funds or otherwise requires compliance with the Davis-Bacon Fair Labor Standards Act, the Contractor and all its subcontractors shall comply with the higher of the state or federal prevailing wage rates.
IN WITNESS WHEREOF, this Contract has been duly executed by the above -named parties, on the day and year above written.
13.a
Packet Pg. 522
Attachment: Contract (4652 : Contract Award - Unlimited Environmental Inc.)
CONTRACT
29 CITY OF COLTON
By:
______________________________
Signature
______________________________
Name
______________________________
Title
Attest:
______________________________
City Clerk
Recommended By:
______________________________
Signature
______________________________
Name
______________________________
Title
[NAME OF CONTRACTOR]
By:
______________________________
Signature
______________________________
Name
______________________________
Title
______________________________
License Number
13.a
Packet Pg. 523
Attachment: Contract (4652 : Contract Award - Unlimited Environmental Inc.)
13.a
Packet Pg. 524
Attachment: Contract (4652 : Contract Award - Unlimited Environmental Inc.)
13.a
Packet Pg. 525
Attachment: Contract (4652 : Contract Award - Unlimited Environmental Inc.)
13.a
Packet Pg. 526
Attachment: Contract (4652 : Contract Award - Unlimited Environmental Inc.)
13.a
Packet Pg. 527
Attachment: Contract (4652 : Contract Award - Unlimited Environmental Inc.)
13.a
Packet Pg. 528
Attachment: Contract (4652 : Contract Award - Unlimited Environmental Inc.)
13.a
Packet Pg. 529
Attachment: Contract (4652 : Contract Award - Unlimited Environmental Inc.)
13.a
Packet Pg. 530
Attachment: Contract (4652 : Contract Award - Unlimited Environmental Inc.)
13.a
Packet Pg. 531
Attachment: Contract (4652 : Contract Award - Unlimited Environmental Inc.)
13.a
Packet Pg. 532
Attachment: Contract (4652 : Contract Award - Unlimited Environmental Inc.)
13.a
Packet Pg. 533
Attachment: Contract (4652 : Contract Award - Unlimited Environmental Inc.)
13.a
Packet Pg. 534
Attachment: Contract (4652 : Contract Award - Unlimited Environmental Inc.)
13.a
Packet Pg. 535
Attachment: Contract (4652 : Contract Award - Unlimited Environmental Inc.)
13.a
Packet Pg. 536
Attachment: Contract (4652 : Contract Award - Unlimited Environmental Inc.)
13.a
Packet Pg. 537
Attachment: Contract (4652 : Contract Award - Unlimited Environmental Inc.)
13.a
Packet Pg. 538
Attachment: Contract (4652 : Contract Award - Unlimited Environmental Inc.)
13.a
Packet Pg. 539
Attachment: Contract (4652 : Contract Award - Unlimited Environmental Inc.)
13.a
Packet Pg. 540
Attachment: Contract (4652 : Contract Award - Unlimited Environmental Inc.)
13.a
Packet Pg. 541
Attachment: Contract (4652 : Contract Award - Unlimited Environmental Inc.)
13.a
Packet Pg. 542
Attachment: Contract (4652 : Contract Award - Unlimited Environmental Inc.)
13.a
Packet Pg. 543
Attachment: Contract (4652 : Contract Award - Unlimited Environmental Inc.)
13.a
Packet Pg. 544
Attachment: Contract (4652 : Contract Award - Unlimited Environmental Inc.)
13.a
Packet Pg. 545
Attachment: Contract (4652 : Contract Award - Unlimited Environmental Inc.)
ITEM NO. 14
STAFF REPORT
DATE: OCTOBER 15, 2024
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: BILL SMITH, CITY MANAGER
PREPARED BY: CHARLES BERRY, ELECTRIC UTILITY DIRECTOR
SUBJECT: ACCEPT AND APPROVE EASEMENT AT 1790 E. WASHINGTON FOR THE ELECTRIC UTILITY.
RECOMMENDED ACTION
Staff recommends that the City Council take the following action:
Accept and approve the recordation of a grant of easement for electric purposes at 1790 E .
Washington St.
BACKGROUND
This easement is for one commerc ial building, property owned by O’Reilly Auto Enterprises, LLC, for which an application for electric service connection for the building was submitted.
This project is located at 1790 E. Washington St (Assessor’s Parcel No. 0276-162-30).
ISSUES/ANALYSIS
The owner constructed or will construct the electric improvements necessary for this project. In order to maintain the new electric utility service at this location, the owner of the property needs to provide an easement to the City of Colton. The owner agreed to grant easement(s) to the City of Colton as shown on the attached exhibit. The purpose of the easement(s) is for the installation, access, repair, and maintenance of the electric improvements. The description and location of the easements are shown in the attachment (O’Reilly Auto Enterprises, LLC).
FISCAL IMPACTS
This action will not have a financial impact to the City.
14 Packet Pg. 546
Staff Report to the Mayor and City Council
Easement - 1790 E. Washington
October 15, 2024