AGENDA
A REGULAR MEETING
OF THE CUDAHY CITY COUNCIL
and JOINT MEETING of the
CITY OF CUDAHY AS SUCCESSOR AGENCY and HOUSING SUCCESSOR AGENCY
TO THE CUDAHY DEVELOPMENT COMMISSION
Tuesday, October 4, 2022 – 6:30 P.M.
Written materials distributed to the City Council within 72 hours of the City Council meeting shall be available for public inspection at www.cityofcudahy.com In compliance with the Americans with Disabilities Act (ADA) if you need special assistance to participate in this meeting, you should contact the City Clerk’s Office at (323) 773-5143 at least 72 hours in advance of the meeting.
Rules of Decorum
Under the Government Code, the City Council may regulate disruptive behavior that impedes the City Council Meeting.
Disruptive conduct may include, but is not limited to:
• Screaming or yelling during another audience member’s public comments period; • Profane language directed at individuals in the meeting room; • Throwing objects at other individuals in the meeting room; • Verbal altercations with other individuals in the meeting room; and • Going beyond the allotted three-minute public comment period granted.
When a person’s or group’s conduct disrupts the meeting, the Mayor or presiding officer will request that the person or group stop the disruptive behavior and WARN the person or group that they will be asked to leave the meeting room if the behavior continues.
If the person or group refuses to stop the disruptive behavior, the Mayor or presiding officer may order the person or group to leave the meeting room and may request that those persons be escorted from the meeting room. Any person who, without authority of law, willfully disturbs or breaks up a City Council meeting is guilty of a misdemeanor. (Pen. Code, § 403.)
Elizabeth Alcantar, Mayor
Jose R. Gonzalez, Vice Mayor
Jack M. Guerrero, Council Member
Blanca Lozoya, Council Member
Daisy Lomelí, Council Member
REMOTE TELECONFERENCE AND
ELECTRONICALLY
This meeting will be conducted telephonically
and electronically pursuant to Government
Code § 54953
Teleconference Phone Number:
1 (669) 900-6833
Meeting ID: 845 2157 3096
https://us06web.zoom.us/j/84521573096
City of Cudahy
City Council and Successor Agency
Regular Meeting Agenda
October 4, 2022, at 6:30 P.M.
1. CALL TO ORDER
2. ROLL CALL
Council / Agency Member Guerrero
Council / Agency Member Lozoya
Council / Agency Member Lomelí
Vice Mayor / Vice Chair Gonzalez
Mayor / Chair Alcantar
3. PLEDGE OF ALLEGIANCE
4. LAND ACKNOWLEDGEMENT
We would like to acknowledge that the land we inhabit today was once known as Tovangaar, the home of the Gabrieleño-Tongva people. We show our respects to the Gabrieleño-Tongva people, as well as all Indigenous people, past, present, and future, and honor their labor as original caretakers of this land. We commit to uplifting the Gabrieleño-Tongva people, invite you to acknowledge the history, and join us in caring for this land.
5. PRESENTATIONS
6. CLOSED SESSION PUBLIC COMMENTS - NONE
7. CLOSED SESSION - NONE
8. CLOSED SESSION ANNOUNCEMENT - NONE
Pursuant to Municipal Code Section 2.04.020, regular city council meetings are set to begin at 6:30 p.m., since there are no closed session items scheduled, the council will continue with the proceedings of this meeting without any break for closed session.
9. PUBLIC COMMENTS
(Each member of the public may provide a public comment telephonically or electronically by clicking the hand icon on Zoom or pressing star (*) nine (9) on the telephone, if he or she wishes to address the City Council. Members of the public are permitted to speak for three (3) minutes concerning items under the City Council’s jurisdiction, including items on the council agenda.) (Any person who, without authority of law, willfully disturbs or breaks up a City Council meeting is guilty of a misdemeanor. (Pen. Code, § 403).)
City of Cudahy
City Council and Successor Agency
Regular Meeting Agenda
October 4, 2022, at 6:30 P.M.
10. CITY COUNCIL COMMENTS / REQUESTS FOR AGENDA ITEMS (Each Council Member is limited to three minutes.)
(This is the time for the City Council / Agency to comment on any topics related to “City Business,” including announcements, reflections on city / regional events, response to public comments, suggested discussion topics for future council meetings, general concerns about particular city matters, questions to the staff, and directives to the staff (subject to approval / consent of the City Council majority members present, regarding staff directives). Each Council / Agency Member will be allowed to speak for a period not to exceed three (3) minutes. Notwithstanding the foregoing, the City Council Members shall not use this comment period for serial discussions or debate between members on City business matters not properly agendized. The City Attorney shall be responsible for regulating this aspect of the proceeding.)
11. CITY MANAGER REPORT (information only)
12. REPORTS REGARDING AD HOC, ADVISORY, STANDING, OR OTHER COMMITTEE
MEETINGS
13. WAIVER OF FULL READING OF RESOLUTIONS AND ORDINANCES (Consideration to waive full text reading of all Resolutions and Ordinances by single motion made at the start of each meeting, subject to the ability of the City Council / Agency to read the full text of selected resolutions and ordinances when the item is addressed by subsequent motion.) (COUNCIL / AGENCY)
Recommendation: Approve the Waiver of Full Reading of Resolutions and Ordinances.
14. CONSENT CALENDAR
(Items under the Consent Calendar are considered routine and will be enacted by one motion, prior to the vote to approve the Consent Calendar, each Council Member shall have a maximum of three (3) minutes to comment on the Consent Calendar as a whole. There will be no separate discussion of these items unless a Council / Agency Member so requests specific item(s) be removed from the Consent Calendar for separate action. Items may only be considered as a separate action if either (1) a Council Member must recuse themselves due to a conflict of interest or (2) a Council Member has specific questions for City Staff. Items called for separate discussion will be heard as the next order of business.) A. Adoption of Proposed Ordinance Adding Section 3.16.140 (Alternate Procurement Procedure) of Chapter 3.16 (Purchasing System) of Title 3 (Revenue and Finance) of the Cudahy Municipal Code (page 7)
Presented by the City Attorney
Recommendation: The City Council is requested to adopt proposed Ordinance No. 726 by second reading, adding Section 3.16.140 (Alternate Procurement
City of Cudahy
City Council and Successor Agency
Regular Meeting Agenda
October 4, 2022, at 6:30 P.M.
Procedure) of Chapter 3.16 (Purchasing System) of Title 3 (Revenue and Finance) of the Cudahy Municipal Code.
B. Adoption of Proposed Resolution No. 22-56 Proclaiming a Local Emergency, Ratifying the Proclamation of a State of Emergency by Governor Newsom on March 4, 2020, and Re-Authorizing Remote Teleconference Meetings of the City Council, City Boards, and all Commissions of the City of Cudahy, for the Period from October 4, 2022, through November 3, 2022, Pursuant to Brown Act Provisions (page 13)
Presented by the City Attorney
Recommendation: The City Council is requested to approve proposed Resolution No. 22-56 proclaiming a local emergency, ratifying the proclamation of a State of Emergency by Governor Newsom on March 4, 2020, and re-authorizing remote teleconference meetings of the City Council, City Boards, and all Commissions of the City of Cudahy, for the period from October 4, 2022, through November 3, 2022, pursuant to Ralph M. Brown Act provisions.
C. Consideration to Review and Approve Proclamation on Indigenous Peoples’ Day, 2022 (page 21) Presented by the City Clerk
Recommendation: The City Council is requested to approve and sign a proclamation on Indigenous Peoples’ Day, 2022.
D. Consideration to Review and Approve the Draft Minutes of August 2, 2022, Regular Meeting, August 8, 2022, Special Meeting and September 20, 2022, Regular Meeting of the City Council and the Joint Meeting of the City of Cudahy as Successor Agency and Housing Successor Agency to the Cudahy Development Commission (page 25)
Presented by the City Clerk
Recommendation: The City Council is requested to review and approve the City Council / Successor Agency Draft Minutes for August 2, 2022, August 8, 2022, and September 20, 2022.
15. PUBLIC HEARING
A. Consideration to Adopt Resolution No. 22-57, Authorizing the Execution and Delivery of a Performance Contracting Agreement, Master Lease Purchase Agreement and an Escrow Agreement for the City-Wide Energy Efficiency Facilities Modernization Project (page 45) Presented by the Finance Director
Recommendation: The City Council is requested to approve the following:
City of Cudahy
City Council and Successor Agency
Regular Meeting Agenda
October 4, 2022, at 6:30 P.M.
1. Approve and authorize the City Manager to execute Performance Contracting Agreement, Master Lease Purchase Agreement, Escrow Agreement, and other related agreements with Siemens Industry Inc. for the City-Wide Energy Efficiency Facilities Modernization Project.
2. Adopt Resolution No. 22-57, Authorizing the Execution and Delivery of a Performance Contracting Agreement, Leasing Schedule #20011891, which Incorporates the terms and conditions of a Master Lease Purchase Agreement and an Escrow Agreement making Findings required by Government Code Section 4217.10 et seq. in connection with the City’s Renewable and Energy Efficiency Program.
16. BUSINESS SESSION
A. Approval of Professional Services Agreement with Transtech Engineers, Inc., for On Call Design Engineering Services for Capital Improvement and Community Development Block Grant Projects (page 349)
Presented by the Public Works Director
Recommendation: City Council is requested to award a Professional Services Agreement (PSA) for On Call Design Engineering Services for Capital Improvement and Community Development Block Grant Projects to Transtech Engineers, Inc.
B. Approval of Professional Services Agreement for Facility Condition Assessment, Space Utilization Analysis, and Preventive Maintenance Plan (page 435)
Presented by the Public Works Director
Recommendation: The City Council is requested to award a Professional Services Agreement (PSA) to Bureau Veritas to conduct a City Facility Condition Assessment, Space Utilization Analysis, and Preventive Maintenance Plan, in the amount of $61,811.95.
17. COUNCIL DISCUSSION - NONE
18. ADJOURNMENT
City of Cudahy
City Council and Successor Agency
Regular Meeting Agenda
October 4, 2022, at 6:30 P.M.
I, Richard Iglesias, hereby certify under penalty of perjury under the laws of the State of California that the foregoing agenda was posted on the City’s Website, City Hall, Bedwell Hall, Clara Park, and Lugo Park not less than 72 hours prior to the meeting. A copy of said Agenda is on file in the City Clerk’s Office.
Dated this 29th day of September 2022
Richard Iglesias
City Clerk
“Serving The People” "Sirviendo A La Comunidad"
Staff Report
10/4/2022 Page 1 of 2
STAFF REPORT
Date: October 4, 2022
To: Honorable Mayor/Chair and City Council/Agency Members From: Alfonso Noyola, City Manager
By: City Attorney’s Office
Subject: Adoption of Proposed Ordinance Adding Section 3.16.140 (Alternate Procurement Procedure) of Chapter 3.16 (Purchasing System) of Title 3 (Revenue and Finance) of the Cudahy Municipal Code
RECOMMENDATION
The City Council is requested to adopt proposed Ordinance No. 726 by second reading, adding Section 3.16.140 (Alternate Procurement Procedure) of Chapter 3.16 (Purchasing System) of Title 3 (Revenue and Finance) of the Cudahy Municipal Code.
BACKGROUND/ANALYSIS
On June 22, 2015, the City Council adopted Ordinance No. 649 establishing Chapter 3.16 (Purchase and Sale of Services, Supplies, and Equipment) of Title 3 (Revenue and Finance) of the Cudahy Municipal Code. On August 14, 2017, the City Council adopted Ordinance No. 672, amending Chapter 3.16 (Purchasing System) to clarify the City’s ability to make cooperative purchases of services and items.
The City Council wishes to further amend Chapter 3.16 (Purchasing System) to establish an alternate procurement procedure to expedite the purchases of specified supplies, material, equipment, or general services. The proposed alternate procurement procedure will only be applicable to specific purchases approved by resolution adopted by not less than four-fifths (4/5) of its members.
This proposed alternate procurement process may not be applied to public projects which are subject to mandatory competitive bidding under applicable state law, or any mandated informal bidding authorized under the Uniform Public Construction Cost Accounting Act.
Item Number
14A
“Serving The People” "Sirviendo A La Comunidad"
Staff Report
10/4/2022 Page 2 of 2
CONCLUSION
Based on the foregoing, staff recommends that the City Council approve Ordinance No. 726, adding Section 3.16.140 (Alternate Procurement Procedure) of Chapter 3.16 (Purchasing System) of Title 3 (Revenue and Finance) of the Cudahy Municipal Code.
FINANCIAL IMPACT
There are no financial impacts anticipated by this requested action.
ATTACHMENT
A. Ordinance No. 726
ORDINANCE NO. 726
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF CUDAHY ADDING SECTION 3.16.140 (ALTERNATE
PROCUREMENT PROCEDURE) OF CHAPTER 3.16
(PURCHASING SYSTEM) OF TITLE 3 (REVENUE AND
FINANCE) OF THE CUDAHY MUNICIPAL CODE
WHEREAS, pursuant to Government Code section 54201 through 54203, a city must adopt, by ordinance, policies, and procedures, including bidding regulations, governing purchases of supplies and equipment by the city; and WHEREAS, on June 22, 2015, the City of Cudahy City Council (“City Council”) adopted Ordinance No. 649 establishing Chapter 3.16 (Purchase and Sale of Services, Supplies, and Equipment) of Title 3 (Revenue and Finance) of the Cudahy Municipal Code; and
WHEREAS, on August 14, 2017, the City Council adopted Ordinance No. 672, amending Chapter 3.16 (Purchasing System) to clarify the City’s ability to make cooperative purchases of services and items; and
WHEREAS, the City Council wishes to further amend Chapter 3.16 (Purchasing System) to establish an alternate procurement procedure to expedite the purchases of specified supplies, material, equipment, or general services.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CUDAHY DOES ORDAIN AS FOLLOWS:
Section 1. The facts set forth in the recitals above are true and correct.
Section 2. Section 3.16.140 (Alternate Procurement Procedure) of Chapter 3.16 (Purchasing System) of Title 3 (Revenue and Finance) shall be added to the Cudahy Municipal Code and shall read as follows:
“3.16.140 Alternate Procurement Procedure.
Any procurement of supplies, materials, equipment or general services, is exempt from the requirements of CMC 3.16.120 and 3.16.130, if the city council finds, by resolution adopted by not less than four-fifths (⅘) of its members, that such procurement may be more economically and efficiently effected through the use of an alternate transactional process or alternate procurement procedure.
This exception may not be applied to public projects which are subject to mandatory competitive bidding under applicable state law or any mandated informal bidding authorized under the Uniform Public Construction Cost Accounting Act.”
Ordinance No. XXX
Section 3. CEQA. This Ordinance is not subject to CEQA under the general rule set forth in Section 15601(b)(3) of the CEQA Guidelines that CEQA only applies to projects which have the potential for causing a significant effect on the environment.
Section 4. Inconsistent Provisions. Any provision of the Cudahy Municipal Code, or appendices thereto, that conflicts with the provisions of this Ordinance, to the extent of such conflict and no further, is hereby repealed or modified to the extent necessary to affect the provisions of this Ordinance.
Section 5. Severability. If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this Ordinance, or any part thereof is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance or any part thereof. The City Council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause or phrase thereof, irrespective of the fact that any one or more section, subsection, subdivision, paragraph, sentence, clause or phrase would be subsequently declared invalid or unconstitutional.
Section 6. Construction. This Ordinance is intended to supplement, not to duplicate or contradict, applicable state and federal law and this Ordinance shall be construed in light of that intent. To the extent the provisions of the Cudahy Municipal Code, as amended by this Ordinance, are substantially the same as the provisions of that Code as it read prior to the adoption of this Ordinance, those amended provisions shall be construed as continuations of the earlier provisions and not as new enactments.
Section 7. Publication and Effective Date. The Mayor shall sign, and the City Clerk shall attest to the passage of this Ordinance. The City Clerk shall cause the same to be published once in the official newspaper within fifteen (15) days after its adoption.
This Ordinance shall become effective thirty (30) days after adoption.
PASSED, APPROVED and ADOPTED by the City Council of the City of Cudahy this XX day of XXXXXX 2022.
________________________________
Elizabeth Alcantar
Mayor
ATTEST:
_________________________________
Richard Iglesias
City Clerk
Ordinance No. XXX
CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES ) SS:
CITY OF CUDAHY )
I, Richard Iglesias, City Clerk of the City of Cudahy, hereby certify that the foregoing Ordinance No. 726 was introduced for a first reading on the ___ day of ______ 2022 and approved for a second reading and adopted by said Council at its regular meeting held on the ___ day of ____ 2022 by the following vote, to-wit:
AYES:
NOES:
ABSTAIN:
ABSENT:
________________________________
Richard Iglesias
City Clerk
Blank Page
“Serving The People” "Sirviendo A La Comunidad"
Staff Report
10/04/2022 Page 1 of 3
STAFF REPORT
Date: October 4, 2022
To: Honorable Mayor/Chair and City Council/Agency Members From: Alfonso Noyola, City Manager/Executive Director
By: City Attorney’s Office
Subject: Adoption of Proposed Resolution No. 22-56 Proclaiming a Local Emergency, Ratifying the Proclamation of a State of Emergency by Governor Newsom on March 4, 2020, and Re-Authorizing Remote Teleconference Meetings of the City Council, City Boards, and all Commissions of the City of Cudahy, for the Period from October 4, 2022, through November 3, 2022, Pursuant to Brown Act Provisions
RECOMMENDATION
The City Council is requested to approve proposed Resolution No. 22-56 proclaiming a local emergency, ratifying the proclamation of a State of Emergency by Governor Newsom on March 4, 2020, and re-authorizing remote teleconference meetings of the City Council, City Boards, and all Commissions of the City of Cudahy, for the period from October 4, 2022, through November 3, 2022, pursuant to Ralph M. Brown Act provisions.
BACKGROUND
COVID-19 (also known as the “Coronavirus Disease”) is a respiratory disease that was first reported in China in December 2019, has now spread throughout the state of California, including through the City of Cudahy (“City”). On March 4, 2020, Governor Gavin Newsom declared a State of Emergency in response to the rising cases of COVID-19 throughout the state of California. On the same day as Governor Newsom’s declaration, the Los Angeles County Board of Supervisors and Los Angeles County Department of Public Health (“LACDPH”) declared a local emergency and local public health emergency in response to the spread of COVID-19 throughout the County. On April 10, 2020, in response to the conditions of extreme peril to the safety of persons within the City, the Cudahy City Council (“City Council”) declared a local emergency consistent with the declaration of local emergency by the LACDPH.
Item Number
14B
“Serving The People” "Sirviendo A La Comunidad"
Staff Report
10/04/2022 Page 2 of 3
On September 16, 2021, Governor Newsom signed into law Assembly Bill No. 361 (“AB 361”), which, until January 1, 2024, authorizes a local agency to use teleconferencing without complying with the teleconferencing requirements imposed by the Brown Act when a legislative body of a local agency holds a meeting during a declared State of Emergency, as that term is defined, when state or local health officials have imposed or recommended measures to promote social distancing or when the legislative body has determined that meeting in person would present imminent risks to the health or safety of attendees.
Currently, the state-declared emergency remains in effect. LACDPH has issued a series of Health Officer Orders containing mandates and recommendations for keeping individuals safe, reducing risk, and preventing the spread of COVID-19. The most recent Public Health Order (“Health Order”) by the LACDPH, effective as of April 22, 2022, states that Los Angeles County is currently experiencing increases in COVID-19 cases, positivity rates, and COVID-19 hospitalizations are no longer in decline. The Health Order continues to strongly recommend masks for all persons, regardless of vaccine status, in indoor public settings and businesses.
On September 6, 2022, the City Council adopted Resolution No. 22-52, proclaiming a local emergency, ratifying the proclamation of a State of Emergency by Governor Newsom on March 4, 2020, and re-authorizing remote teleconference meetings of the City Council, City Boards, and all Commissions of the City, for the period from September 6, 2022, through October 6, 2022.
ANALYSIS
AB 361 requires legislative bodies that hold teleconferenced meetings under its abbreviated teleconferencing procedures to give notice of the meeting and post agendas, as described, to allow members of the public to access the meeting and address the legislative body, to give notice of the means by which members of the public may access the meeting and offer public comment, including an opportunity for all persons to attend via a call-in option or an internetbased service option, and to conduct the meeting in a manner that protects the statutory and constitutional rights of the parties and the public appearing before the legislative body. AB 361 also requires the legislative body take no further action on agenda items when there is a disruption which prevents the public agency from broadcasting the meeting, or in the event of a disruption within the local agency’s control which prevents members of the public from offering public comments, until public access is restored. AB 361 prohibits the legislative body from requiring public comments to be submitted in advance of the meeting and specifies that the legislative body must provide an opportunity for the public to address the legislative body and offer comments in real time. AB 361 prohibits the legislative body from closing the public comment period and the opportunity to register to provide public comment, until the public
“Serving The People” "Sirviendo A La Comunidad"
Staff Report
10/04/2022 Page 3 of 3
comment period has elapsed or until a reasonable amount of time has elapsed, as specified.
All City Council, Board, and Commission meetings are open and public, as required by the Brown Act, so that any member of the public may attend, participate, and watch the City Council or City Commission conduct their business. Given the County of Los Angeles is currently experiencing an increase of COVID-19 cases throughout the County, the City continues to recommend measures to promote social distancing which include requiring staff and civilians wear masks in City buildings as well as posting COVID-19 safety measures throughout City buildings and on the City’s social media accounts.
Once the initial authorizing resolution is adopted, as it was on October 5, 2021, ongoing authorization every thirty (30) days is required by majority vote. If the legislative body desires to continue using the teleconference exception, it must confirm the circumstances of the State of Emergency thirty (30) days after the first teleconference meeting and every thirty (30) days thereafter. Resolution Number 22-52 expires on October 6, 2022, staff recommends the City Council adopt the attached resolution before the existing resolution lapses.
CONCLUSION
In light of the continuing State declaration of emergency resulting from the COVID-19 pandemic and the imminent risks to the health and safety of attendees at meetings conducted in person due to the spread of COVID-19, staff recommends the City Council approve proposed Resolution No. 22-56 proclaiming a local emergency, ratifying the proclamation of a State of Emergency by Governor Newsom on March 4, 2020, and re-authorizing remote teleconference meetings of the City Council of the City of Cudahy, for the period from October 4, 2022, through November 3, 2022, pursuant to Ralph M. Brown Act provisions.
FINANCIAL IMPACT
There is no financial impact on the City at this time.
ATTACHMENTS
A. Proposed Resolution No. 22-56
1 RESOLUTION NO. 22-56
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CUDAHY, CALIFORNIA PROCLAIMING A LOCAL
EMERGENCY, RATIFYING THE PROCLAMATION OF A
STATE OF EMERGENCY BY GOVERNOR NEWSOM ON
MARCH 4, 2020, AND RE-AUTHORIZING REMOTE
TELECONFERENCE MEETINGS OF THE CITY COUNCIL,
CITY BOARDS, AND ALL COMMISSIONS OF THE CITY
OF CUDAHY, FOR THE PERIOD FROM OCTOBER 4,
2022, THROUGH NOVEMBER 3, 2022, PURSUANT TO
BROWN ACT PROVISIONS
WHEREAS, COVID-19 (also known as the “Coronavirus Disease”) is a respiratory disease that was first reported in China in December 2019, it has now spread throughout the state of California, including throughout the City of Cudahy (“City”); and WHEREAS, on March 4, 2020, Governor Gavin Newsom declared a State of Emergency in response to the rising cases of COVID-19 throughout the state of California; and
WHEREAS, on March 4, 2020, the Los Angeles County Board of Supervisors and Los Angeles County Department of Public Health (“LACDPH”) declared a local emergency and local public health emergency in response to the spread of COVID-19 throughout the County; and
WHEREAS, on March 17, 2020, Governor Newsom issued Executive Order N-29- 20, which allowed local governments meet remotely without adherence to the traditional teleconferencing rules set forth in the Ralph M. Brown Act (“Brown Act”), this waiver was extended through September 30, 2021, by Executive Order N-08-21; and WHEREAS, on April 10, 2020, in response to the conditions of extreme peril to the safety of persons within the City, the Cudahy City Council (“City Council”) declared a local emergency consistent with the declaration of local emergency by the LACDPH; and WHEREAS, on September 16, 2021, Governor Newsom signed into law Assembly Bill No. 361 (“AB 361”), which, until January 1, 2024, authorizes a local agency to use teleconferencing without complying with the teleconferencing requirements imposed by the Brown Act, when a legislative body of a local agency holds a meeting during a declared State of Emergency, as that term is defined, when state or local health officials have imposed or recommended measures to promote social distancing or when the legislative body has determined that meeting in person would present imminent risks to the health or safety of attendees; and
WHEREAS, as stated in the most recent Public Health Order (“Health Order”) by the LACDPH, effective as of April 22, 2022, Los Angeles County is currently experiencing increases in COVID-19 cases, positivity rates, and COVID-19 hospitalizations are no longer in decline; and
Attachment A Page 16 of 507
2 WHEREAS, the Health Order continues to strongly recommend masks for all persons, regardless of vaccine status, in indoor public settings and businesses; and WHEREAS, AB 361 requires legislative bodies that hold teleconferenced meetings under its abbreviated teleconferencing procedures to give notice of the meeting and post agendas, as described, to allow members of the public to access the meeting and address the legislative body, to give notice of the means by which members of the public may access the meeting and offer public comment, including an opportunity for all persons to attend via a call-in option or an internet-based service option, and to conduct the meeting in a manner that protects the statutory and constitutional rights of the parties and the public appearing before the legislative body; and
WHEREAS, AB 361 requires the legislative body take no further action on agenda items when there is a disruption which prevents the public agency from broadcasting the meeting, or in the event of a disruption within the local agency’s control which prevents members of the public from offering public comments, until public access is restored; and WHEREAS, AB 361 prohibits the legislative body from requiring public comments to be submitted in advance of the meeting and specifies that the legislative body must provide an opportunity for the public to address the legislative body and offer comment in real time; and
WHEREAS, AB 361 prohibits the legislative body from closing the public comment period and the opportunity to register to provide public comment, until the public comment period has elapsed or until a reasonable amount of time has elapsed, as specified; and WHEREAS, all City Council, Board, and Commission meetings are open and public, as required by the Brown Act, so that any member of the public may attend, participate, and watch the City Council or City Commission conduct their business; and WHEREAS, on October 5, 2021, the City Council adopted Resolution No. 21-35, proclaiming a local emergency, ratifying the proclamation of a State of Emergency by Governor Newsom on March 4, 2020, and authorizing remote teleconference meetings of the City Council, City Boards, and all Commissions of the City, for the period from October 5, 2021, through November 4, 2021, pursuant to Brown Act provisions; and WHEREAS, on November 2, 2021, the City Council adopted Resolution No. 21- 43, extending Resolution No. 21-35 an additional thirty (30) days through December 4, 2021, pursuant to Brown Act provisions; and WHEREAS, on November 16, 2021, the City Council adopted Resolution No. 21- 46, extending Resolution No. 21-43 through January 3, 2022, pursuant to Brown Act provisions; and
WHEREAS, on December 21, 2021, the City Council adopted Resolution No. 21- 51, extending Resolution No. 21-46 through January 20, 2022, pursuant to Brown Act provisions; and
3 WHEREAS, on January 18, 2022, the City Council adopted Resolution No. 22-02, extending Resolution No. 21-51 through February 17, 2022, pursuant to Brown Act provisions; and
WHEREAS, on February 15, 2022, the City Council adopted Resolution No. 22- 07, extending Resolution No. 22-02 through March 17, 2022, pursuant to Brown Act provisions; and
WHEREAS, on March 15, 2022, the City Council adopted Resolution No. 22-11, extending Resolution No. 22-07 through April 14, 2022, pursuant to Brown Act provisions; and
WHEREAS, on April 5, 2022, the City Council adopted Resolution No. 22-13, extending Resolution No. 22-11 through May 5, 2022, pursuant to Brown Act provisions; and
WHEREAS, on May 3, 2022, the City Council adopted Resolution No. 22-19, extending Resolution No. 22-13 through June 2, 2022, pursuant to Brown Act provisions; and
WHEREAS, on May 17, 2022, the City Council adopted Resolution No. 22-21, extending Resolution No. 22-19 through June 16, 2022, pursuant to Brown Act provisions; and
WHEREAS, on June 7, 2022, the City Council adopted Resolution No. 22-25, extending Resolution No. 22-21 through July 7, 2022, pursuant to Brown Act provisions; and
WHEREAS, on June 21, 2022, the City Council adopted Resolution No. 22-36, extending Resolution No. 22-25 through July 21, 2022, pursuant to Brown Act provisions; and
WHEREAS, on July 19, 2022, the City Council adopted Resolution No. 22-41, extending Resolution No. 22-36 through August 18, 2022, pursuant to Brown Act provisions; and
WHEREAS, on August 16, 2022, the City Council adopted Resolution No. 22-48, extending Resolution No. 22-41 through September 15, 2022, pursuant to Brown Act provisions; and
WHEREAS, on September 6, 2022, the City Council adopted Resolution No. 22- 52, extending Resolution No. 22-48 through October 6, 2022, pursuant to Brown Act provisions; and
WHEREAS, the City continues to recommend measures to promote social distancing which include requiring staff and civilians wear masks in City buildings as well as posting COVID-19 safety measures throughout City buildings and on the City’s social media accounts; and
4 WHEREAS, in light of the continuing State declaration of emergency resulting from the COVID-19 pandemic, the continuing recommendation by Los Angeles County Public Health officials for masking at indoor events and social distancing, and the imminent risks to the health and safety of attendees at meetings conducted in person due to the spread of COVID-19, the City Council desires to make the findings required by AB 361 to allow the City Council and all City Boards and Commissions to continue to meet under AB 361’s abbreviated teleconferencing procedures.
NOW, THEREFORE, BE IT RESOLVED, DETERMINED AND ORDERED BY THE CITY COUNCIL OF THE CITY OF CUDAHY, CALIFORNIA, AS FOLLOWS:
SECTION 1. The Recitals set forth above are true and correct and are incorporated into this Resolution by reference.
SECTION 2. The City Council finds that the State and County declarations of emergency in response to the COVID-19 pandemic remain in place.
SECTION 3. The City Council finds that local officials, specifically, the Los Angeles County Department of Public Health, continues to recommend social distancing and masks.
SECTION 4. The City of Cudahy staff along with the City Council are hereby authorized and directed to take all actions necessary to carry out the intent and purpose of this Resolution including, conducting open and public City Council and City Board and Commission meetings in accordance with the newly revised provisions of the Ralph M.
Brown Act.
SECTION 5. If any section, subsection, sentence, clause, or phrase of this Resolution is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Resolution. The City Council hereby declares that it would have passed this Resolution and each and every section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any portion of this Resolution would be subsequently declared invalid or unconstitutional.
SECTION 6. This Resolution shall take effect immediately upon adoption and shall be effective until the earlier of (i) November 3, 2022, or (ii) such time the City Council adopts a subsequent resolution in accordance with Government Code section 54953(e)(3) to extend the time during which the legislative bodies of the City of Cudahy may continue to teleconference without compliance with paragraph (3) of subdivision (b) of section 54953.
PASSED, APPROVED, AND ADOPTED by the City Council of the City of Cudahy at the regular meeting of this 4th day of October 2022. ______________________________
Elizabeth Alcantar
Mayor
5 ATTEST:
____________________________
Richard Iglesias
City Clerk
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES ) SS:
CITY OF CUDAHY )
I, Richard Iglesias, City Clerk of the City of Cudahy, hereby certify that the foregoing Resolution No. 22-56 was passed and adopted by the City Council of the City of Cudahy, signed by the Mayor and attested by the City Clerk at a regular meeting of said Council held on the 4th day of October 2022 and that said Resolution was adopted by the following vote, to-wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
Richard Iglesias
City Clerk
“Serving the People” "Sirviendo A La Comunidad"
Staff Report
10/04/2022 Page 1 of 2
STAFF REPORT
Date: October 4, 2022
To: Honorable Mayor/Chair and City Council/Agency Members From: Alfonso Noyola, City Manager/Executive Director
By: Richard Iglesias, City Clerk
Subject: Consideration to Review and Approve Proclamation on Indigenous Peoples’ Day, 2022
RECOMMENDATION
The City Council is requested to approve and sign a proclamation on Indigenous Peoples’ Day, 2022.
BACKGROUND
In 1977 at the United Nations Conference offices in Geneva, Indigenous Peoples’ Day was first proposed. Indigenous Peoples’ Day began as a celebration to counter the United States federal holiday of Columbus Day to help correct American history.
ANALYSIS
Indigenous Peoples’ Day is a holiday in many states and cities and a day that celebrates and honors Native Americans. President Joe Biden was the first United States president to recognize the second Monday in October as Indigenous Peoples’ Day by signing a proclamation declaring October 11, 2021, as Indigenous Peoples’ Day.
CONCLUSION
The City Council is recommended to approve and sign the proclamation recognizing Indigenous Peoples’ Day.
Item Number
14C
“Serving the People” "Sirviendo A La Comunidad"
Staff Report
10/04/2022 Page 2 of 2
FINANCIAL IMPACT
No Financial Impact.
ATTACHMENT
A. Proclamation
Blank Page
“Serving the People” "Sirviendo A La Comunidad"
Staff Report
10/04/2022 Page 1 of 2
STAFF REPORT
Date: October 4, 2022
To: Honorable Mayor/Chair and City Council/Agency Members From: Alfonso Noyola, City Manager/Executive Director
By: Richard Iglesias, City Clerk
Subject: Consideration to Review and Approve the Draft Minutes of August 2, 2022, Regular Meeting, August 8, 2022, Special Meeting and September 20, 2022, Regular Meeting of the City Council and the Joint Meeting of the City of Cudahy as Successor Agency and Housing Successor Agency to the Cudahy Development Commission
RECOMMENDATION
The City Council is requested to review and approve the City Council / Successor Agency Draft Minutes for August 2, 2022, August 8, 2022, and September 20, 2022.
BACKGROUND / ANALYSIS
On December 12, 2016, the City Council of the City of Cudahy adopted Resolution No. 16-38, approving the use of summary action minutes, meant to allow the City Clerk's Office to write the minutes in brief, assuring a record of Council's actions, due to having a recording of the full Council Meeting on the City’s website.
Historically
The Municipal Clerk is one of the oldest professions in government, dating back to 1272 A.D., originating in England. The record keeper then was called Remembrancer, an English official whose job was to remind the Lord Treasurer and Barons of Court, of business pending.
Years later, in the 1600s, when early colonists came to America, the office of the Clerk was one of the first offices to be established. Over the years, the City Clerk’s office has become the core for local government, and the liaison to the residents of the Community. The Municipal Clerk (City Clerk) is the record keeper of a City’s recorded history.
Item Number
14D
“Serving the People” "Sirviendo A La Comunidad"
Staff Report
10/04/2022 Page 2 of 2
William Bennett Munro, a Canadian historian, and political scientist, who taught at Harvard University and the California Institute of Technology, stated in one of his first textbooks written: “No other office in municipal service has so many contacts. It serves the Mayor, the City Council, the City Manager (when there is one), and all administrative departments, without exception. All of them call upon it, almost daily, for some service or information. Its work is not spectacular, but it demands versatility, alertness, accuracy, and no end of patience.
The public does not realize how many loose ends of city administration this office pulls together.”
Moving forward to the present time, the City Clerk’s office today is generally responsible for keeping a record of City Council meetings; agreements; recordings of official documents; legal advertisements; municipal elections; commissions and committees current files; claims against the city; and other legal or official documents.
City Clerks are required to keep record of the proceedings (minutes) of Council meetings (Government Code Sections 36814 and 40801). Minutes are the official record of a meeting which provides a history of the Council’s decisions and actions.
CONCLUSION
City Council is requested to approve the attached City Council / Agency Draft Minutes of the proceedings of August 2, 2022, August 8, 2022, and September 20, 2022.
FINANCIAL IMPACT
No Financial Impact.
ATTACHMENT
A. Draft Minutes of August 2, 2022, Regular Meeting.
B. Draft Minutes of August 8, 2022, Special Meeting.
C. Draft Minutes of September 20, 2022, Regular Meeting.
D. Resolution No. 16-38, approving the City Clerk’s use of Summary Action Minutes as the Official Record of the City Council proceedings.
City Council/Successor Agency Minutes of 8/2/2022 Page 1 of 4 CUDAHY CITY COUNCIL REGUAR MEETING and
CITY OF CUDAHY AS SUCCESSOR AGENCY and
HOUSING SUCCESSOR AGENCY TO THE CUDAHY
DEVELOPMENT COMMISSION JOINT MEETING
August 2, 2022 6:30 P.M.
1. CALL TO ORDER
Mayor / Chair Alcantar called the meeting to order at 6:36 p.m.
2. ROLL CALL
PRESENT:
ABSENT:
Council / Agency Member Jack M. Guerrero (arrived at 7:05 p.m.) Council / Agency Member Blanca Lozoya
Council / Agency Member Daisy Lomelí
Mayor / Chair Elizabeth Alcantar
Vice Mayor / Vice Chair Jose R. Gonzalez
ALSO PRESENT: City Manager, Alfonso Noyola, Deputy City Attorney Stephanie Arechiga, City Clerk, Richard Iglesias, Junior Deputy City Clerk, Estefania Zamora, Finance Director, Joshua Calhoun, and Administrative Services Director, Brenda Rodriguez.
3. PLEDGE OF ALLEGIANCE
The Pledge of Allegiance was led by Council Member Lomelí.
4. LAND ACKNOWLEDGEMENT
The Land Acknowledgment was led by Council Member Lomelí.
We would like to acknowledge that the land we inhabit today was once known as Tovangaar, the home of the Gabrieleño-Tongva people. We show our respects to the Gabrieleño-Tongva people, as well as all Indigenous people, past, present, and future, and honor their labor as original caretakers of this land. We commit to uplifting the Gabrieleño-Tongva people, invite you to acknowledge the history, and join us in caring for this land.
5. PRESENTATIONS – NONE
6. CLOSED SESSION PUBLIC COMMENTS – NONE
7. CLOSED SESSION – NONE
8. CLOSED SESSION ANNOUNCEMENT – NONE
Attachment A Page 27 of 507
City Council/Successor Agency Minutes of 8/2/2022 Page 2 of 4
9. PUBLIC COMMENTS – NONE
10. CITY COUNCIL COMMENTS / REQUESTS FOR AGENDA ITEMS
Council Member Lomelí thanked staff for being active, expressed excitement, recognized educators, wished educators a smooth transition back to school, and looked forward to working with the schools.
Council Member Lozoya echoed Council Member Lomeli’s comments and hoped students and teachers would be ready to return.
Mayor Alcantar acknowledged two teachers attending the council meeting, recognized staff, mentioned a short film titled “If I Go Will They Miss Me” inspired by the Delta Fuel Dump, participated in an event where three films played, informed the public of a backpack give away, expressed her excitement and gratitude.
11. CITY MANAGER REPORT (information only)
12. REPORTS REGARDING AD HOC, ADVISORY, STANDING OR OTHER
COMMITTEE MEETINGS
Mayor Alcantar reported she sits on the Hub Cities Board that works throughout Southeast Los Angeles serving many community members, mentioned Hub Cities assisted the community with financial help and stated Hub Cities would be moving from Huntington Park to the City of South Gate.
Council Member Lomelí suggested that staff schedule an Education Ad Hoc Committee meeting.
13. WAIVER OF FULL READING OF RESOLUTIONS AND ORDINANCES Motion: Council Member Lomelí motioned to waive full reading of resolutions and ordinances, seconded by Council Member Lozoya. Motion passed 3-0-2 by the following roll call vote:
AYES: Lozoya, Lomelí, and Alcantar
NOES: None
ABSENT: Guerrero and Gonzalez
ABSTAIN: None
14. CONSENT CALENDAR
A. Consideration to Review and Approve the Draft Minutes of July 12, 2022, for the Special Meeting of the City Council and the Joint Meeting of the City of Cudahy as Successor Agency and Housing Successor Agency to the Cudahy Development Commission
City Council/Successor Agency Minutes of 8/2/2022 Page 3 of 4 Recommendation: The City Council is requested to review and approve the City Council / Successor Agency Draft Minutes for July 12, 2022.
B. Adoption of Ordinance Amending Section 10.04.040 of Chapter 10.04 (Traffic Code) of Title 10 (Vehicles and Traffic) of the Cudahy Municipal Code Recommendation: The Council is requested to adopt Ordinance No. 724 by second reading, amending Section 10.04.040 of Chapter 10.04 (Traffic Code) of Title 10 (Vehicles and Traffic) of the Cudahy Municipal Code.
Motion: Mayor Alcantar motioned to approve Consent Calendar items, seconded by Council Member Lozoya. Motion passed 3-0-2 by the following roll call vote:
AYES: Lozoya, Lomelí, and Alcantar
NOES: None
ABSENT: Guerrero and Gonzalez
ABSTAIN: None
15. PUBLIC HEARING – NONE
16. BUSINESS SESSION
A. Consideration to Appoint Board Members to the Planning Commission Presented by the City Clerk
Recommendation: The City Council is requested to review applications and appoint commission applicants to the Planning Commission.
Motion: Mayor Alcantar motioned to continue item 16A to a date uncertain, seconded by Council Member Lozoya. Motion passed 3-0-2 by the following roll call vote:
AYES: Lozoya, Lomelí, and Alcantar
NOES: None
ABSENT: Guerrero and Gonzalez
ABSTAIN: None
B. Receive and File of the FY 2020-21 Audited Financial Statements and Related Reports
Presented by the Finance Director and Vasquez and Company LLP Recommendation: The City Council is requested to receive and file the FY 2020-21 Audited Financial Statements and Related Reports.
Motion: Mayor Alcantar motioned to receive and file the FY 2020-21 Audited Financial Statements and Related Reports, seconded by Council Member Lozoya. Motion passed 3-0-1 by the following roll call vote:
City Council/Successor Agency Minutes of 8/2/2022 Page 4 of 4 AYES: Lozoya, Lomelí, and Alcantar
NOES: None
ABSENT: Gonzalez
ABSTAIN: Guerrero
17. COUNCIL DISCUSSION – NONE
18. ADJOURNMENT
Council Member Lomelí motioned to adjourn the City Council / Agency meeting at 7:09 p.m. in memory of Huntington Park Councilman Manny Avila, seconded by Mayor Alcantar. Motion passed 4-0-1 by the following roll call vote:
AYES: Guerrero, Lozoya, Lomelí, and Alcantar
NOES: None
ABSENT: Gonzalez
ABSTAIN: None
Elizabeth Alcantar
Mayor
ATTEST:
Richard Iglesias
City Clerk
City Council/Successor Agency Minutes of 8/8/22 Page 1 of 6
MINUTES
CUDAHY CITY COUNCIL SPECIAL MEETING and
CITY OF CUDAHY AS SUCCESSOR AGENCY and
HOUSING SUCCESSOR AGENCY TO THE CUDAHY
DEVELOPMENT COMMISSION JOINT MEETING
August 8, 2022 6:30 P.M.
1. CALL TO ORDER
Mayor / Chair Alcantar called the meeting to order at 6:35 p.m.
2. ROLL CALL
PRESENT: Council / Agency Member Jack M. Guerrero
Council / Agency Member Blanca Lozoya
Council / Agency Member Daisy Lomelí
Vice Mayor / Vice Chair Jose R. Gonzalez (left meeting at 8:52 p.m.) Mayor / Chair Elizabeth Alcantar
ABSENT: None
ALSO PRESENT: City Manager, Alfonso Noyola, Deputy City Attorney, Susie Altamirano, Deputy City Attorney, Stephanie Arechiga, City Clerk, Richard Iglesias, Finance Director, Joshua Calhoun, Director of Administrative Services, Brenda Rodriguez, Community
Development Director, Juan Arauz
3. PUBLIC COMMENTS
Gerardo Hernandez stated his issue with this meeting was public engagement, this council meeting not being advertised on social media, the public not being informed enough to attend, and the only time he saw this meeting being promoted was by the Mayor; he also stated that there should not be an excuse for not posting this meeting on social media and anyone running the City's social media needs to do better on providing public engagement.
Susie de Santiago echoed the comments from the previous speaker, stated she almost missed this meeting for it was not posted on social media, asked Council to increase the tax measure, 10% tax is not enough, go to 15%, 600-800 feet is too close and not enough go up to 1000, or more so it can be limited due to being a small community, lastly questioned the outreach survey conducted at National Night out.
Bertha Martinez stated she is opposed having dispensaries, Cudahy is a small city anywhere it is placed it will be too closed to schools and youths, echoed previous comments, city needs to do a better job posting notices and better input from the community.
Attachment B Page 31 of 507
City Council/Successor Agency Minutes of 8/8/22 Page 2 of 6 Tevina Q. reiterated all the previous speakers' comments about reaching out to the community, mentioned the City's Instagram did not have a post about this meeting, commented on posting on social media and promoting what is occurring in the City, and mentioned being against dispensaries close to schools and churches and should be taxed more.
Jordan Ferguson complimented staff and City Attorney's office, mentioned they are not at an agreement yet; what is referred to as the negotiated initiative in chart A of the staff report is not a final deal and would not be sufficient for the proponents to withdraw the Citizens initiative, mentioned if Council decides to approve either item tonight, it will approve two competing measures creating voter confusion, due to no close session on this agenda proponents were unable to submit a final offer to the City and hopes Council can provide clear direction on mentioned outstanding points.
Lisa Villarreal, Marina Luna, Monica stated they supported the Voters Initiative and does not support any initiative sponsored by the City Council.
Elizabeth M. Barket Kremser mentioned the City's initiative does not accomplish the goals of their constituents nor the previous goals of the Council and that there is time for one united initiative, addressed the problems of running two ballot initiatives on the same issue.
Cecilia Barajas stated she would like both initiatives on the ballot and let Cudahy citizens decide.
Ayde Bravo stated Cudahy should consider the distance dispensaries are to schools, clinics, and churches, mentioning what occurred in the City of Maywood; she also said the City of Cudahy has the burden of enforcing the cannabis license, and does not like dispensaries in the City, mentioned to tax them to the point where it's worth having business with cannabis companies, let the people decide.
Star Laca stated if Council approves dispensaries, they can be far from schools and churches, and taxes be no less than 15%.
Jack Guerrero spoke in opposition to the initiative, stated there should be a competing proposal that restricts the presence to the urban agriculture overlay zone and tax rate of at least 15%.
4. BUSINESS SESSION
A. Consideration and Approval of Alternative Resolution (i) Calling for the Placement of both a City Council-Initiatived Ballot Measure to Regulate and Tax Retail Cannabis Activities along with a Voter Initiative Petition Measure Relating to the Same; or alternatively (ii) Calling for the Placement of a Single ballot measure initiative mutually acceptable to both the City and the proponents of the Voter Initiative Petition Measure Presented by the City Attorney
City Council/Successor Agency Minutes of 8/8/22 Page 3 of 6 Deputy City Attorney Susie Altamirano mentioned a typo in Section 5.30.050., 3. SubSection (A) of the ordinance and the corrected language should read, "City Council may increase the maximum number of retail cannabis business permits issued for retailers based within the City or outside the City."
Recommendation: The City Council is requested to adopt either:
1. The proposed Resolution No. 22-46 adding both the Cudahy Marijuana Retail Sales Regulation and Taxation Ballot Measure as a citizen’s proposed measure and the Cannabis Businesses Accountability Measure as proposed by the City Council to the November 8, 2022, City of Cudahy General Municipal Election and setting priorities for filling written arguments and rebuttals regarding the measures; or
2. The proposed Resolution No. 22-47 adding only the Cannabis Accountability Measure as proposed by the City Council to the November 8, 2022, City of Cudahy General Municipal Election and setting priorities for filling written arguments and rebuttals regarding the measures; or
3. Some modified version of what is presented above as may be directed by the City Council.
Motion: Vice Mayor Gonzalez motioned to adopt proposed Resolution No. 22-46, adding both the Cudahy Marijuana Retail Sales Regulation and Taxation Ballot Measure as a citizen's proposed measure and the Cannabis Businesses Accountability Measure proposed by the City Council to the November 8, 2022, City of Cudahy General Municipal Election and setting priorities for filing written arguments and rebuttals regarding the measures, with a 12% tax rate instead of 10% in the city measure including language ("City Council may increase the maximum number of retail cannabis business permits issued for retailers based within the City or outside the City.") read into the record by the City Attorney, seconded by Mayor Alcantar. Motion failed 2-3 by the following roll call vote:
AYES: Gonzalez, and Alcantar
NOES: Guerrero, Lozoya, and Lomelí
ABSENT: None
ABSTAIN: None
Motion: Council Member Guerrero motioned to adopt proposed Resolution No. 22-46, adding both the Cudahy Marijuana Retail Sales Regulation and Taxation Ballot Measure as a citizen's proposed measure and the Cannabis Businesses Accountability Measure proposed by the City Council to the November 8, 2022, City of Cudahy General Municipal Election and setting priorities for filing written arguments and rebuttals regarding the measures, with a 15% tax rate instead of 10% in the city measure with no flexibility from the City Council to lower the Tax Rate unless it goes to the voters for approval, including
City Council/Successor Agency Minutes of 8/8/22 Page 4 of 6 language ("City Council may increase the maximum number of retail cannabis business permits issued for retailers based within the City or outside the City.") read into the record by the City Attorney, seconded by Council Member Lozoya. Motion failed 2-3 by the following roll call vote:
AYES: Guerrero, and Lozoya
NOES: Lomelí, and Gonzalez
ABSENT: None
ABSTAIN: Alcantar
Motion: Mayor Alcantar motioned to adopt proposed Resolution No. 22-46, adding both the Cudahy Marijuana Retail Sales Regulation and Taxation Ballot Measure as a citizen's proposed measure and the Cannabis Businesses Accountability Measure proposed by the City Council to the November 8, 2022, City of Cudahy General Municipal Election and setting priorities for filing written arguments and rebuttals regarding the measures, with a 15% tax rate instead of 10% in the city measure, with the ability for City Council by Majority Vote to lower the Tax Rate by 3% every 12 months, at a minimum of 6%, anything lower than 6% goes to the voters for approval, including language ("City Council may increase the maximum number of retail cannabis business permits issued for retailers based within the City or outside the City.") read into the record by the City Attorney, seconded by Vice Mayor Gonzalez. Motion failed 3-2 by the following roll call vote: Motion failed 3-2 by the following roll call vote:
AYES: Lomelí, Gonzalez, and Alcantar
NOES: Guerrero, and Lozoya
ABSENT: None
ABSTAIN: None
Motion: Council Member Guerrero motioned to adopt proposed Resolution No. 22-46, adding both the Cudahy Marijuana Retail Sales Regulation and Taxation Ballot Measure as a citizen's proposed measure and the Cannabis Businesses Accountability Measure proposed by the City Council to the November 8, 2022, City of Cudahy General Municipal Election and setting priorities for filing written arguments and rebuttals regarding the measures, with a 15% tax rate instead of 10% in the city measure which would stay in effect in the first 12 months, after 12 months the Tax Rate can be adjusted between 12%- 15%, including language ("City Council may increase the maximum number of retail cannabis business permits issued for retailers based within the City or outside the City.") read into the record by the City Attorney, seconded by Council Member Lozoya. Motion failed 2-2 by the following roll call vote:
AYES: Guerrero, and Lozoya
NOES: Lomelí, and Gonzalez
ABSENT: None
ABSTAIN: Alcantar
City Council/Successor Agency Minutes of 8/8/22 Page 5 of 6 Motion: Mayor Alcantar motioned to adopt proposed Resolution No. 22-46, adding both the Cudahy Marijuana Retail Sales Regulation and Taxation Ballot Measure as a citizen's proposed measure and the Cannabis Businesses Accountability Measure proposed by the City Council to the November 8, 2022, City of Cudahy General Municipal Election and setting priorities for filing written arguments and rebuttals regarding the measures, with a 15% tax rate instead of 10% in the city measure, with the ability for City Council to lower the Tax Rate by 3% every 18 months, at a minimum of 6%, anything lower than 6% goes to the voters for approval, including language ("City Council may increase the maximum number of retail cannabis business permits issued for retailers based within the City or outside the City.") read into the record by the City Attorney, seconded by Council Member Lomelí. Motion failed 3-2 by the following roll call vote:
AYES: Lomelí, Gonzalez, and Alcantar
NOES: Guerrero, and Lozoya
ABSENT: None
ABSTAIN: None
Motion: Council Member Guerrero motioned to adopt proposed Resolution No. 22-46, adding both the Cudahy Marijuana Retail Sales Regulation and Taxation Ballot Measure as a citizen's proposed measure and the Cannabis Businesses Accountability Measure proposed by the City Council to the November 8, 2022, City of Cudahy General Municipal Election and setting priorities for filing written arguments and rebuttals regarding the measures, with a 15% tax rate instead of 10% in the city measure which would stay in effect in the first 12 months, after 12 months the Tax Rate can be adjusted between 10%- 15% at the Council's discretion with a 4/5 vote, including language ("City Council may increase the maximum number of retail cannabis business permits issued for retailers based within the City or outside the City.") read into the record by the City Attorney, seconded by Council Member Lozoya. Motion failed 2-3 by the following roll call vote:
AYES: Guerrero, and Lozoya
NOES: Lomelí, Gonzalez, and Alcantar
ABSENT: None
ABSTAIN: None
Motion: Council Member Lomelí motioned to adopt proposed Resolution No. 22-46, adding both the Cudahy Marijuana Retail Sales Regulation and Taxation Ballot Measure as a citizen's proposed measure and the Cannabis Businesses Accountability Measure proposed by the City Council to the November 8, 2022, City of Cudahy General Municipal Election and setting priorities for filing written arguments and rebuttals regarding the measures, with a 15% tax rate instead of 10% in the city measure which would stay in effect in the first 12 months, after 12 months the Tax Rate can be adjusted down to 8% at the Council's discretion with a 4/5 vote, including language ("City Council may increase the maximum number of retail cannabis business permits issued for retailers based within the City or outside the City.") read into the record by the City Attorney, seconded by Vice Mayor Gonzalez. Motion failed 3-1 by the following roll call vote:
City Council/Successor Agency Minutes of 8/8/22 Page 6 of 6 AYES: Lomelí, Gonzalez, and Alcantar
NOES: Guerrero
ABSENT: None
ABSTAIN: Lozoya
Motion: Vice Mayor Gonzalez motioned to table item 4A until Wednesday, August 10, 2022, seconded by Council Member Lomeli. Motion passed 3-0 by the following roll call vote:
AYES: Lozoya, Lomelí, and Gonzalez
NOES: None
ABSENT: None
ABSTAIN: Guerrero, and Alcantar
18. ADJOURNMENT
Motion: Council Member Lomeli motioned to adopt adjourn the meeting at 8:53 p.m., seconded by Council Member Lozoya. Motion passed 3-0-1 by the following roll call vote:
AYES: Lozoya, Lomelí, and Alcantar
NOES: None
ABSENT: Gonzalez
ABSTAIN: Guerrero
Elizabeth Alcantar
Mayor
ATTEST:
Richard Iglesias
City Clerk
City Council/Successor Agency Minutes of 9/20/2022
MINUTES
CUDAHY CITY COUNCIL REGULAR MEETING and
CITY OF CUDAHY AS SUCCESSOR AGENCY and
HOUSING SUCCESSOR AGENCY TO THE CUDAHY
DEVELOPMENT COMMISSION JOINT MEETING
September 20, 2022 6:30 P.M.
1. CALL TO ORDER
Mayor / Chair Alcantar called the meeting to order at 6:35 p.m.
2. ROLL CALL
PRESENT: Council / Agency Member Jack M. Guerrero
Council / Agency Member Blanca Lozoya
Council / Agency Member Daisy Lomelí
Vice Mayor / Vice Chair Jose R. Gonzalez (arrived at 6:39 p.m.) Mayor / Chair Elizabeth Alcantar
ABSENT: NONE
ALSO PRESENT: City Manager, Alfonso Noyola, Deputy City Attorney Stephanie Arechiga, City Clerk, Richard Iglesias, Finance Director, Joshua Calhoun, Administrative Services Director, Brenda Rodriguez, Community Development Director Juan Arauz, Public Works Director, Aaron Hernandez, and Executive Secretary, Janet Andrade.
3. PLEDGE OF ALLEGIANCE
The Pledge of Allegiance was led by Mayor Alcantar.
4. LAND ACKNOWLEDGEMENT
The Land Acknowledgment was led by Mayor Alcantar.
We would like to acknowledge that the land we inhabit today was once known as Tovangaar, the home of the Gabrieleño-Tongva people. We show our respects to the Gabrieleño-Tongva people, as well as all Indigenous people, past, present, and future, and honor their labor as original caretakers of this land. We commit to uplifting the Gabrieleño-Tongva people, invite you to acknowledge the history, and join us in caring for this land.
5. PRESENTATIONS
A. Certificates of Recognition to Outgoing Commissioners Attachment C Page 37 of 507
City Council/Successor Agency Minutes of 9/20/2022
6. CLOSED SESSION PUBLIC COMMENTS – NONE
7. CLOSED SESSION – NONE
8. CLOSED SESSION ANNOUNCEMENT – NONE
9. PUBLIC COMMENTS
Gerardo Hernandez commented on the temporary prohibition rent increase ordinance, urged Council to pass the ordinance to relieve the burden on residents, and announced statistics on Cudahy renters.
Bertha Martinez commented in support of the temporary prohibition rent increase item, mentioned an issue they are having at Ellen Ochoa during drop-off time and dismissal, and asked the City to assist with enforcing.
Susie de Santiago echoed both Bertha and Gerardo’s comments, spoke on the traffic issues at Ellen Ochoa, suggested the City partners with the City of Bell, and mentioned she supports rent stabilization but needs to be looked into further recommended including a renter to serve on the Ad-Hoc Committee.
Edin Enamorado thanked all the commissioners that served, mentioned he has not been paid for the past four years as commissioner, and commented in support of the temporary prohibition rent increase item, and rents being a huge problem.
Tevina Quintana spoke on the traffic issues at Ellen Ochoa, stated she supports the temporary prohibition rent increase ordinance, mentioned the affordability of rents, and thanked all fellow commissioners.
Deputy Montes spoke on the Ellen Ochoa situation and the need to educate the parents, and he responded to a comment by mentioning that if homeless assistance is needed, to contact City Hall, City staff is available to assist with locating a shelter.
10. CITY COUNCIL COMMENTS / REQUESTS FOR AGENDA ITEMS
Council Member Guerrero echoed the traffic sentiment at Ellen Ochoa and elsewhere in the City, mentioned the City continues to approve apartment complex after apartment complex, and reiterated his comments regarding the changes to the voting of Consent Calendar items.
Council Member Lozoya commented on the traffic at Ellen Ochoa and asked what the outcome of the parking space item from the last meeting was.
Council Member Lomelí addressed school issue, asked staff to work with the principals to send school designee for an Education Ad-Hoc Meeting, mentioned the issue of defunding school police was to direct those funds towards care, thanked staff for always being available, stated she received compliments on the banners on Atlantic, also asked staff to bring to the next meeting a proclamation that recognizes Indigenous Peoples' Day.
City Council/Successor Agency Minutes of 9/20/2022
Vice Mayor Gonzalez thanked the team for clarifying that the City is in line with state, federal, and municipal laws.
Mayor Alcantar thanked everyone who spoke about the traffic issue at Ellen Ochoa, stated she has addressed it with staff, staff has gone out and are discussing better options, also discussed with staff what are the options for supporting homelessness solutions and will be joining the staff on a ride along to see the entire process through.
11. CITY MANAGER REPORT (information only)
12. REPORTS REGARDING AD HOC, ADVISORY, STANDING OR OTHER COMMITTEE MEETINGS – NONE
13. WAIVER OF FULL READING OF RESOLUTIONS AND ORDINANCES Motion: Council Member Lomelí motioned to waive full reading of resolutions and ordinances, seconded by Mayor Alcantar. Motion passed 4-1 by the following roll call vote:
AYES: Lozoya, Lomelí, Gonzalez, and Alcantar
NOES: Guerrero
ABSENT: None
ABSTAIN: None
14. CONSENT CALENDAR
Council Member Guerrero addressed comments that were made earlier in the meeting regarding the consent calendar, stated that the brown act is very explicit about making sure that every vote is recorded on an individual basis on a per item basis, and he would be voting no because of the alleged decrepit internal control environment and the 79 internal control elements that were absent per California State Controller report.
A. Consideration to Review and Approve the Draft Minutes of September 6, 2022, for the Regular Meeting of the City Council and the Joint Meeting of the City of Cudahy as Successor Agency and Housing Successor Agency to the Cudahy Development Commission
Recommendation: The City Council is requested to review and approve the City Council / Successor Agency Draft Minutes for September 6, 2022.
B. Notice to Receive and File 2022 Local Agency Biennial Notice and Direct Staff to Review the City’s Conflict of Interest Code
Recommendation: The City Council is requested to direct staff to review the conflict of interest code and receive and file 2022 Conflict of Interest Code Biennial Notice.
C. Approval of the Local Agency Investment Fund (LAIF) for the Month of August 2022
City Council/Successor Agency Minutes of 9/20/2022
Recommendation: The City Council is requested to approve the Local Agency Investment Fund (LAIF) Report for the month of August 2022 in the amount of $11,223,201.06.
D. Approval of the City Demands and Payroll Including Statement of Investment for the Month of August 2022
Recommendation: The City Council is requested to approve the Demands and Payroll in the amount of $1,750,512.85 including the Statement of Investments for the month of August 2022.
Motion: Council Member Lomelí motioned to approve Consent Calendar items, seconded by Council Member Lozoya. Motion passed 4-1 by the following roll call vote:
AYES: Lozoya, Lomelí, Gonzalez, and Alcantar
NOES: Guerrero
ABSENT: None
ABSTAIN: None
15. PUBLIC HEARING – NONE
16. BUSINESS SESSION
A. Consideration to Adopt a Proposed Ordinance of the City Council of the City of Cudahy Establishing a Prohibition on Residential Rent Increases Presented by the City Attorney
Recommendation: Staff recommends that the City Council adopt proposed Ordinance No. 725 by second reading, establishing a temporary prohibition on residential rent increases for 90 days with the ability to extend further and direct the Rent Control Ad Hoc Committee to provide findings to the City Council within 60 days.
Motion: Mayor Alcantar motioned to adopt proposed Ordinance No. 725 by second reading, establishing a temporary prohibition on residential rent increases for 90 days with the ability to extend further and direct the Rent Control Ad Hoc Committee to provide findings to the City Council within 60 days, seconded by Council Member Lomelí. Motion passed 3-2 by the following roll call vote:
AYES: Lomelí, Gonzalez, and Alcantar
NOES: and Guerrero and Lozoya
ABSENT: None
ABSTAIN: None
B. Consideration to Change Appointment of a Rent Control Ad Hoc Committee member Presented by the City Clerk
City Council/Successor Agency Minutes of 9/20/2022
Recommendation: The City Council is requested to consider changing an appointed Rent Control Ad Hoc Committee member.
Motion: Mayor Alcantar motioned to appoint Vice Mayor Gonzalez to replace Council Member Lomelí on the Rent Control Ad-Hoc Committee and to come back for a future item on the next meeting to add two tenants and a landlord that reside in Cudahy, seconded by Vice Mayor Gonzalez. Motion passed 4-0 by the following roll call vote:
AYES: Lozoya, Lomelí, Gonzalez, and Alcantar
NOES: None
ABSENT: None
ABSTAIN: Guerrero
C. Approval of Notice to Proceed with Siemens Industry, Inc. Relating to the City-Wide Energy Efficiency Facilities Modernization Project
Presented by the Finance Director
Recommendation: The City Council is requested to authorize the City Manager to sign and execute the Notice to Proceed with Siemens Industry, Inc. (“Siemens”) relating to the City-Wide Energy Efficiency Facilities Modernization Project.
Motion: Vice Mayor Gonzalez motioned to authorize the City Manager to sign and execute the Notice to Proceed with Siemens Industry, Inc. (“Siemens”) relating to the CityWide Energy Efficiency Facilities Modernization Project., seconded by Council Member Lomelí Motion passed 4-1 by the following roll call vote:
AYES: Lozoya, Lomelí, Gonzalez, and Alcantar
NOES: Guerrero
ABSENT: None
ABSTAIN: None
D. Adoption of Proposed Ordinance Adding Section 3.16.140 (Alternate Procurement Procedure) of Chapter 3.16 (Purchasing System) of Title 3 (Revenue and Finance) of the Cudahy Municipal Code
Presented by the City Attorney
Recommendation: The City Council is requested to approve an Ordinance by first reading, adding Section 3.16.140 (Alternate Procurement Procedure) of Chapter 3.16 (Purchasing System) of Title 3 (Revenue and Finance) of the Cudahy Municipal Code.
Motion: Council Member Lozoya motioned to approve an Ordinance by first reading, adding Section 3.16.140 (Alternate Procurement Procedure) of Chapter 3.16 (Purchasing System) of Title 3 (Revenue and Finance) of the Cudahy Municipal Code., seconded by Vice Mayor Gonzalez. Motion passed 4-1 by the following roll call vote:
City Council/Successor Agency Minutes of 9/20/2022
AYES: Lozoya, Lomelí, Gonzalez, and Alcantar
NOES: Guerrero
ABSENT: None
ABSTAIN: None
17. COUNCIL DISCUSSION – NONE
18. ADJOURNMENT
Council Member Lozoya motioned to adjourn the City Council / Agency meeting at 8:16 p.m., seconded by Council Member Lomelí. Motion passed 4-0 by the following roll call vote:
AYES: Lozoya, Lomelí, Gonzalez, and Alcantar
NOES: None
ABSENT: None
ABSTAIN: Guerrero
Elizabeth Alcantar
Mayor
ATTEST:
Richard Iglesias
City Clerk
Attachment
D
“Serving The People” "Sirviendo A La Comunidad"
Staff Report
10/04/2022 Page 1 of 6
STAFF REPORT
Date: October 4, 2022
To: Honorable Mayor/Chair and City Council/Agency Members From: Alfonso Noyola, City Manager/Executive Director
By: Joshua Calhoun, CPA, Finance Director/ City Treasurer Aaron Hernandez-Torres, P.E., Public Works Director/ City Engineer.
Subject: Consideration to Adopt Resolution No. 22-57, Authorizing the Execution and Delivery of a Performance Contracting Agreement, Master Lease Purchase Agreement and an Escrow Agreement for the City-Wide Energy Efficiency Facilities Modernization Project
RECOMMENDATION
The City Council is requested to approve the following:
1. Approve and authorize the City Manager to execute Performance Contracting Agreement, Master Lease Purchase Agreement, Escrow Agreement, and other related agreements with Siemens Industry Inc. for the City-Wide Energy Efficiency Facilities Modernization Project.
2. Adopt Resolution No. 22-57, Authorizing the Execution and Delivery of a Performance Contracting Agreement, Leasing Schedule #20011891, which Incorporates the terms and conditions of a Master Lease Purchase Agreement and an Escrow Agreement making Findings required by Government Code Section 4217.10 et seq. in connection with the City’s Renewable and Energy Efficiency Program.
BACKGROUND
1. On October 19, 2021, Siemens Industry, Inc. (Siemens) presented its preliminary assessment findings, identifying citywide energy savings opportunities and providing a roadmap if the City chose to proceed with the project.
2. On November 2, 2021, City Council authorized the city manager to execute a letter of intent with Siemens Industry, Inc. to proceed with the detailed study of the Renewable and Energy Efficiency Program.
3. On June 15, 2022, Siemens presented its findings to City staff and provided different options Item Number
15A
“Serving The People” "Sirviendo A La Comunidad"
Staff Report
10/04/2022 Page 2 of 6
of proposed improvements the City could select to develop a scope of work.
4. On June 29, 2022, City staff and Siemens held a follow-up meeting to refine the scope of work, project costs, and financing options.
5. On August 1, 2022, Siemens provided its Investment Grade Audit Detailed Study Report to City staff.
6. On August 16, 2022, the City Council was presented with the Investment Grade Audit and approved an appropriation in the amount not-to-exceed $6.5 million dollars to fund a CityWide Energy Efficiency Facilities Modernization Project for Fiscal year 2022-2023, that includes the implementation of energy related improvements that will reduce the cost of energy through the installation of energy efficient fixtures and improvements and the installation and operation of solar energy equipment on City-owned facilities, including rooftops and carports.
7. On September 16, 2022, the City published a public notice on its intention to consider entering into an Energy Services Contract and enter into a Master Lease Purchase Agreement with Siemens Industry, Inc.
ANALYSIS
In an effort to address rising energy and operation costs by upgrading existing City facilities, The City worked with Siemens to conduct an Investment Grade Audit (IGA) that identified energy saving infrastructure improvements on the facilities listed below (Attachment A):
Building / Parks Address
City Hall / Library 5220 Santa Ana St.
Bedwell Hall 5218 Santa Ana St.
Cudahy Park 5220 Santa Ana St.
Clara Street Park / Community
Center, Sports complex
4835 Clara St.
Clara expansion park 4838 Clara St.
Public Works / Lugo Park 7810 Otis Ave.
Energy saving facility improvement projects were identified through thorough on-site facility inspections to identify and evaluate Facility Improvement Measures (FIMs) opportunities that would provide energy, maintenance, or other cost savings. The projected savings for each FIM was quantified using computer simulation models and spreadsheet calculations. The input data was derived from site visits, interviews with City administration and staff, electric power and related measurements, data logging and observation of the operation of existing equipment and occupancy patterns, engineering drawings, and utility billing data.
“Serving The People” "Sirviendo A La Comunidad"
Staff Report
10/04/2022 Page 3 of 6
The analysis included assessing the existing HVAC, building lighting, mechanical automation, street and outdoor lighting, as well as solar powered infrastructure. Ultimately, the IGA recommended the following facility improvement measures:
• Interior and Exterior LED Lighting
• City Owned Street Lighting
• Solar PV
• Roof Replacement
• Mechanical Upgrades
• Transformer Upgrades
Based off these recommendations identified in the IGA, City staff recommended the following facility improvement projects to be included in the scope of work:
• Upgrade interior and exterior lighting to LED at all City facilities. • Conduit a detailed street lighting audit and upgrade City owned Street lighting to LED with long life photocell.
• Install Solar PV systems for the City Hall, Community Center/Clara Park and Public Works/Lugo Park. City Hall system type shall be carport and remaining buildings will be roof mounted.
• Replace existing roofs at the City Hall/Library, Public Works/Lugo Park and Community Center/Clara Park with PVC roofing.
• Replace all existing package units and split systems to new high efficiency systems. • Install new Power Smith transformers to replace old inefficient transformers located at the City Hall and Bedwell Hall.
The table below summarizes the proposed scope of work. A detailed description of the scope of work is found on Attachment B:
Scope of Work
LED LightingLED Street LightingSolarRoof Replacement (Carlisle)HVAC and ControlsTransformerSkylight Replacement City Hall, Library, Cudahy Park X X X X X
Bedwell Hall X X X
Lugo Park, Public Works X X X X X
“Serving The People” "Sirviendo A La Comunidad"
Staff Report
10/04/2022 Page 4 of 6
Clara Street Park, Sports Complex, Community
Center X X X X X
City Owned Street Lighting X
Clara Expansion Park X
Cudahy River Park X
The proposed scope of work is projected to accumulate over $9 million in savings over a 15 year period. The annual savings breakdown is below:
Performance
Period
Energy
Savings
Solar
Savings
Operational
Savings
Total
Savings
Annual Period 1 $ 59,752 $ 31,311 $ 391,757 $ 482,820
Annual Period 2 $ 62,142 $ 32,564 $ 403,510 $ 498,216
Annual Period 3 $ 64,628 $ 33,866 $ 415,615 $ 514,109
Annual Period 4 $ 67,213 $ 35,221 $ 428,084 $ 530,517
Annual Period 5 $ 69,902 $ 36,630 $ 440,926 $ 547,457
Annual Period 6 $ 72,698 $ 38,095 $ 454,154 $ 564,946
Annual Period 7 $ 75,606 $ 39,619 $ 467,778 $ 583,003
Annual Period 8 $ 78,630 $ 41,203 $ 481,812 $ 601,645
Annual Period 9 $ 81,775 $ 42,851 $ 496,266 $ 620,893
Annual Period 10 $ 85,046 $ 44,566 $ 511,154 $ 640,766
Annual Period 11 $ 88,448 $ 46,348 $ 526,489 $ 661,285
Annual Period 12 $ 91,986 $ 48,202 $ 542,283 $ 682,471
Annual Period 13 $ 95,665 $ 50,130 $ 558,552 $ 704,347
Annual Period 14 $ 99,492 $ 52,135 $ 575,308 $ 726,936
Annual Period 15 $ 103,472 $ 54,221 $ 592,568 $ 750,260 TOTALS $ 1,196,454 $ 626,961 $ 7,286,256 $ 9,109,671
Moreover, this project is included in the City’s recently adopted Capital Improvement Plan (CIP) under Efficiency & Renewable Energy Project and Cudahy City Facilities Improvement Project.
Approving this agreement ensures that we continue successfully implementing the CIP in a timely manner.
California Government Code Sections 4217.10-4217.18 were enacted in 1984. The purpose was to assist public agencies in expediting and financing energy infrastructure projects and measures. This Code eliminates the necessity to separately contract for design and
“Serving The People” "Sirviendo A La Comunidad"
Staff Report
10/04/2022 Page 5 of 6
construction phases of the project. As well, it provides exception from bidding for energy performance contracting projects. Not only is this allowed for General Law cities in the State of California, it is encouraged by the State to address energy efficiency and deferred maintenance projects common in public agencies.
Total project costs are not to exceed $6.5 million, of which approximately $6.3 million will be through Siemens, with approximately $200,000 to be utilized by City contractors for specific components of the project. A total of $5.1 million will be financed through tax exempt lease financing over 15 years at an interest rate no greater than 5.00% for total principal and interest payments of $7,214,490. Interest continues to be volatile in the current economic market, but the City has exercised diligence in capping the interest at no more than 5.00% where the interest rates are substanitially more in the market. The total of the annual debt payments do not exceed the anticipated cost recovery. Approximately $1.4 million of (one-time) reimbursed ARPA funds will be used to cover the difference between the total project cost and total amount financed. The City’s costs to repay Siemens over the 15-year period will come from energy savings, guaranteed by Siemens, and capital cost. The City will save the cash flow that would have been needed if the City completed these deferred maintenance projects out of the budget.
Resolution No. 22-57 would authorize the execution and delivery of a Performance Contracting Agreement, Leasing Schedule #20011891, which incorporates and terms and conditions of a Master Lease Purchase Agreement and an Escrow Agreeemnt; making findings required by Government Code Section 4217.10 et seq. in connection with the City’s Renewable and Energy Efficiency Program.
Special Counsel has reviewed the relevant documents and expects to deliver their opinion regarding validity, enforceability and tax matters in substantially the form attached hereto.
CONCLUSION
City staff recommends authorizing the City Manager to execute the Performance Contracting Agreement, Master Lease Purchase Agreement, and other related contracts/agreement with Siemens to implement its City-Wide Energy Efficiency Facilities Modernization Project and to provide financing for the project. Council is also requested to adopt Resolution No. 22-57 to fully finance this project. Doing so would result in approximately $9.1 million in cost savings over 15 years as well as secure funding to major projects in the City’s Capital Improvement Plan.
FINANCIAL IMPACT
The total project costs are not to exceed $6.5 million. $5.1 million will be financed through tax exempt lease financing over 15 years at an interest rate of no greater than 5.00% for total
“Serving The People” "Sirviendo A La Comunidad"
Staff Report
10/04/2022 Page 6 of 6
principal and interest payments of $7,214,490. Approximately $1.4 million of (one-time) reimbursed ARPA funds will be used to cover the difference between the total project cost and total amount financed. The City’s costs to repay Siemens over the 15-year period will come from energy savings, guaranteed by Siemens, and capital cost savings.
ATTACHMENTS
A. Performance Contracting Agreement Between the City of Cudahy and Siemens Industry, Inc. for it City-Wide Energy Efficiency Facilities Modernization Project B. Investment Grade Audit
C. Resolution No. 22-57
D. Master Lease Purchase Agreement
E. Proof of Publication
F. Special Counsel Opinion Letter
Smart Infrastructure
PERFORMANCE CONTRACTING AGREEMENT
between
City of Cudahy, CA
and
Siemens Industry, Inc.
TABLE OF ARTICLES
1. Agreement
2. Glossary
3. General
4. Performance Guarantee
5. Work by SIEMENS
6. CLIENT Responsibilities
7. Changes and Delays
8. Compensation
9. Acceptance
10. Insurance and Allocation of Risk
11. Hazardous Material Provisions
12. Miscellaneous Provisions
13. Maintenance Services Program
Attachment A Page 51 of 507
PERFORMANCE CONTRACTING AGREEMENT
Agreement PCA-100 PUBLIC version 2019v2
Smart Infrastructure
Number: 44OP-310036
Article 1
AGREEMENT
THIS PERFORMANCE CONTRACTING AGREEMENT (“Agreement”) is made this 16th day of August , 2022 (the “Effective Contract Date”, defined below), by and between Siemens Industry, Inc. (“SIEMENS”) and the party identified below as the CLIENT.
The CLIENT: City of Cudahy
5220 Santa Ana St.
Cudahy, CA. 90201
DESIGNATED REPRESENTATIVE: Alfonso Noyola - City Manager PHONE: (323) 773-5143, Extension 226
Siemens Industry, Inc.
1000 Deerfield Parkway
Buffalo Grove, Illinois 60089
With offices at: 6141 Katella Avenue
Cypress, CA. 90630
DESIGNATED REPRESENTATIVE: Ernest Kim – Business Dev. Manager PHONE: (714) 425-7140
For Work and Services in connection with the following project (the “Project”):
City-Wide Energy Efficiency Facilities Modernization Project The CLIENT considered performing the following FIMs but at this time, has determined to exclude them from the Scope of Work and Services, Exhibit A:
• Electric Vehicle Charging Stations
• Air-Conditioned Space for the GYM at the Community Center • SCE Streetlights Acquisition
• Sports Field Lighting at Cudahy Park
• Sky Light Replacement at City Hall and Bedwell Hall
PERFORMANCE CONTRACTING AGREEMENT
Articles and Attachments
This Agreement consists of this document, which includes the following articles and exhibits which are acknowledged by the CLIENT and SIEMENS and incorporated into the Agreement by this reference:
This Agreement, when executed by an authorized representative of the CLIENT and authorized representatives of SIEMENS, constitutes the entire, complete and exclusive agreement between the Parties relative to the project scope stated in Exhibit A. This Agreement supersedes all prior and contemporaneous negotiations, statements, representations, agreements, letters of intent, awards, or proposals, either written or oral relative to the same, and may be modified only by a written instrument signed by both Parties.
COMPENSATION/TERMS OF PAYMENT:
As full consideration for the performance of the Work and Services set forth in Exhibit A, and for the Performance Assurance set forth in Exhibit C, the CLIENT shall pay SIEMENS in such manner and amounts as agreed to in Exhibit B.
Agreed for
(Signature) by:
Print Name and Title:
(Signature) by:
Print Name and Title:
City of Cudahy
Alfon Noyola, ICMA , City Manager
Agreed for
(Signature) by:
Print Name and Title:
(Signature) by:
Print Name and Title:
Siemens lndustry, lnc.
Page3of19
PCA-100 PUBLIC version 2019v2
Articles
1. Agreement
2. Glossary
3. General
4. PerformanceGuarantee
5. Work BY SIEMENS
6. The CLIENT'S Responsibilities
7. Changes and Delays
8. Compensation
9. Acceptance
10. lnsurance and Allocation of Risk
11. Hazardous Material Provisions
12. Miscellaneous Provisions
13. Maintenance Services Program
Exhibits
Exhibit A Scope of Work and Services
Exhibit B Payment Schedule(s)
Exhibit C Performance Assurance
Exhibit D1 Form of Certificate of Substantial Completion Exhibit D2 Form of Certificate of Final Completion
Agreement
Smart lnfrastructure
PERFORMANCE CONTRACTING AGREEMENT
Agreement
Smart Infrastructure PCA-100 PUBLIC version 2019v2
Article 2
Glossary
The following terms shall for all purposes have the meanings stated herein, unless the context otherwise specifies or requires, or unless otherwise defined in the Agreement:
Acceptance means the CLIENT has signed, or is deemed to have signed, a Certificate of Final Completion.
Acceptance Date means the date on which the CLIENT signs or is deemed to have signed a Certificate of Final Completion.
Annual Performance Assurance Report means the document prepared by SIEMENS and submitted to the CLIENT as part of the Performance Assurance Service Program, which identifies the Savings achieved for the applicable Annual Period.
Annual Period means a twelve (12) month period beginning on the Guarantee Date or on any anniversary date thereof.
Annual Realized Savings means the actual Savings achieved by the CLIENT during an Annual Period, calculated as the sum of the Measured & Verified Savings plus the Stipulated Savings.
Applicable Law means all applicable laws, including Environmental Laws, treaties, ordinances, rules, regulations and interpretations of any Governmental Authority having jurisdiction over the design, engineering, fabrication, manufacturing, Delivery, assembly, erection, installation, and/or the performance of the Parties’ obligations under this Agreement.
Applicable Permits means the permits, clearances, licenses, authorizations, consents, filings, exemptions or approvals from or required by any Governmental Authority that are necessary for the performance of the Parties’ obligations under this Agreement.
Baseline means the measurements of Facility energy usage taken prior to the Effective Contract Date, and the Facility operating practices in effect prior to the Effective Contract Date, as set forth in the Performance Assurance, Exhibit C.
Baseline Period means the period of time from which data is provided to SIEMENS to derive the Baseline measurements.
The Baseline Period is set forth in the Performance Assurance, Exhibit C.
BTU means a British Thermal Unit and is a unit of thermal energy.
Capital Off-Set Savings means a sub-category of Operational Savings where Savings will result in a cost-effective upgrade to the Facility to address one or more of the following issues: potential future increased costs, comfort, code non-compliance, usage requirements, user needs and/or expectations.
Certificate of Final Completion means a document, in the form attached as Exhibit D2 hereto, indicating that the Work identified in Article 1 of the Scope of Work and Services-Exhibit A has been completed in accordance with the Agreement, including all items in the Outstanding Items List(s).
Certificate of Substantial Completion means a document, in the form attached as Exhibit D1 hereto, indicating that the Work, or a designated portion of the Work, is Substantially Complete in accordance with the Agreement. A Certificate of Substantial Completion may be accompanied by an Outstanding Items List.
CLIENT Representative means the person identified to SIEMENS by the CLIENT as the person authorized to make decisions on behalf of the CLIENT as set forth in Section 6.1(a) hereof.
Construction Period means the period between the Effective Contract Date and the first day of the month following the Acceptance Date.
Construction Period Savings means the actual accumulated Measured & Verified Savings plus the Stipulated Savings achieved from the Effective Contract Date until the Guarantee Date.
Contracted Baseline means the post-FIM-implementation Facility operating profile based on parameters described in Exhibit C, which the CLIENT shall maintain throughout the Performance Guarantee Period and are relied upon by SIEMENS for the calculation of Guaranteed Savings as provided in the Performance Assurance, Exhibit C. The Contracted Baseline must also include stipulated hours of operation and plug-loads for all Facilities, and must include stipulated blended, or non-blended, utility rates.
Deferred Maintenance means a sub-category of Operational Savings where Savings result from a reduction of current or potential future repair and maintenance costs due to certain work being performed hereunder where such work had been previously postponed.
Deliverables shall mean collectively, (a) any Equipment and any Software Product deliverable to CLIENT from SIEMENS under or in connection with the Work, and (b) any Work Product Deliverables.
PERFORMANCE CONTRACTING AGREEMENT
Agreement
Smart Infrastructure PCA-100 PUBLIC version 2019v2
Effective Contract Date is the date appearing at the top of this Agreement, unless specifically indicated otherwise.
Energy Conservation Measure or ECM means the SIEMENS Products and/or other third-party equipment, devices, materials and/or software as installed by SIEMENS at the Facilities, or as repaired or replaced by SIEMENS or the CLIENT hereunder, for the purpose of improving the efficiency of utility consumption.
Environmental Laws means applicable national, state/commonwealth, municipal, and local laws as well as all rules, regulations, codes, standards, permits, directives, or ordinances that impose liability or standards of conduct (including disclosure or notification requirements) concerning the protection of human health or the environment, including, without limitation, all laws affecting, controlling, limiting, regulating, pertaining, or relating to the manufacture, possession, presence, use, generation, storage, transportation, detection, monitoring, treatment, Release, disposal, abatement, cleanup, removal, remediation, or handling of Hazardous Materials.
Equipment means the installed physical equipment to be provided by SIEMENS as described in the Scope of Work and Services, Exhibit A.
Escalation Rate means an annual percentage increase to be applied to the previous Annual Period’s energy savings, operational savings and service pricing, beginning and occurring on dates outlined in the Performance Assurance, Exhibit C.
A different Escalation Rate may be applied to differing Savings calculations and/or payment schedules depending on the percentage agreed upon by the Parties.
Facility or Facilities means the building(s) or structure(s) where Work will be installed or implemented.
Facility Improvement Measures or FIMs means the (i) Instruments, know-how and Intellectual Property, including but not limited to methods and techniques for energy conservation, owned or licensed by SIEMENS and employed by SIEMENS to perform the Work and Services under this Agreement; and, (ii) the installation of Equipment and Software Products with the intent of generating net savings or efficiencies at or in connection with the operation of the Facilities. A FIM may include one or multiple ECMs as well as any non-conservation-related activities, means or methods.
FEMP means the Federal Energy Management Program managed by the United States Department of Energy.
FEMP Guidelines means the FEMP M&V Guidelines v. 3.0 published by FEMP as M&V Guidelines; Measurement and Verification for Federal Energy Management Projects.
Governmental Authority means any federal, state/commonwealth, local or other governmental, judicial, public or statutory instrumentality, tribunal, agency, authority, body or entity, or any political subdivision thereof, having legal jurisdiction over the matter or Person in question.
Guarantee Date means the first day of the month following the date on which the CLIENT executes, or is deemed to have executed, the Certificate of Final Completion.
Guaranteed Annual Savings are the Guaranteed Measured & Verified Savings plus the Stipulated Savings that SIEMENS guarantees will be achieved in an Annual Period of the Performance Guarantee Period.
Guaranteed Measured & Verified Savings means the Measured & Verified Savings that SIEMENS guarantees will be achieved, as described in the Performance Assurance, Exhibit C.
Guaranteed Savings means the amount of Savings that SIEMENS guarantees will be achieved at the Facility during the Performance Guarantee Period. as identified in the Performance Assurance, Exhibit C as subject to the limitation identified in Section 4.8.
Hazardous Materials means any material, substance, or waste, that, by reason of its composition or characteristics, is hazardous to human health and/or the environment, including any “solid waste” or “hazardous waste,” as those terms are defined by the Resource Conservation and Recovery Act of 1976, as amended, any “hazardous substance,” as that term is defined by the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, and any other hazardous, toxic or radioactive chemical, waste, byproduct, pollutant, contaminant, compound, product, material or substance, including without limitation, Asbestos, Asbestos containing materials (“ACM”), polychlorinated biphenyls, petroleum (including crude oil or any fraction or byproduct thereof), hydrocarbons, radon, urea, urea formaldehyde, and any other material that is prohibited, controlled, limited or regulated in any manner under any Environmental Laws..
Instruments means all know-how, tools and related documentation owned or licensed by SIEMENS and used by SIEMENS to install or commission Equipment and Software Products for operation at the Facility, including but not limited to tools for installing any Software Products in Equipment, performing diagnostics on Equipment as installed in the Facility as well as any reports, notes, calculations, data, drawings, estimates, specifications, manuals, documents, all computer programs, codes and computerized materials prepared by or for SIEMENS and used by SIEMENS to provide an ECM or a FIM. Instruments excludes Work Product Deliverables.
PERFORMANCE CONTRACTING AGREEMENT
Agreement
Smart Infrastructure PCA-100 PUBLIC version 2019v2
Intellectual Property Rights or Intellectual Property means all trade secrets, patents and patent applications, trademarks (whether registered or unregistered and including any goodwill acquired in such trademarks), services marks, trade names, internet domain names, copyrights (including rights in computer software), moral rights, database rights, design rights, rights in know-how, rights in inventions (whether patentable or not) including, but not limited to, any and all renewals or extensions thereof, and all other proprietary rights (whether registered or unregistered, and any application for the foregoing), and all other equivalent or similar rights which may subsist anywhere in the world, including, but not limited to, any and all renewals or extensions thereof.
IPMVP means the International Performance Measurement and Verification Protocol, Volume 1, EVO 10000-1.2007 as prepared by the Efficiency Valuation Organization.
kW and kWh mean kilowatt and kilowatt hour, respectively.
Maintenance Services Program or MSP means the Services performed by SIEMENS to maintain the Equipment in good working order. The MSP may also contain Services unrelated to the maintenance of the Equipment. If applicable, the MSP is more fully described in the Scope of Work and Services, Exhibit A.
Material Change means a measurable deviation in the Contracted Baseline such that there is an adverse impact on the Annual Realized Savings which results or will result in a Savings Shortfall.
Measured & Verified Savings means those Savings that can be calculated and ascertained by the methodology set forth in the Performance Assurance, Exhibit C.
Operational Savings means Savings derived from reduced operational expenses, including but not limited to, Deferred Maintenance, or Capital Off-Set Savings. Operational Savings can only be expressed in monetary value and are Stipulated Savings.
Outstanding Items List means a list of items in need of completion or correction that relates to the Work, or a designated portion thereof that is Substantially Complete. The absence of such items does not deprive the CLIENT of the ability to put such Work, or a designated portion thereof to beneficial use. An Outstanding Items List may be attached to a Certificate of Substantial Completion.
Parties means the CLIENT and SIEMENS.
Performance Assurance is the process of ascertaining whether the FIMs are performing at the level necessary to achieve the Guaranteed Savings.
Performance Assurance Services Program or PASP means the Services required to monitor the operation of the FIMs so that SIEMENS can provide the Annual Performance Assurance Report detailing the Annual Realized Savings and comparing the same to the Annual Guaranteed Savings based upon the calculations agreed to by the Parties in the Performance Assurance, Exhibit C. The Services provided under the PASP are described in the Scope of Work and Services, Exhibit A.
Performance Guarantee means the guarantee that SIEMENS makes to the CLIENT which is reconciled and confirmed through the Performance Assurance process set forth in the Performance Assurance, Exhibit C.
Performance Guarantee Period means the timeframe from the Guarantee Date to the last day of the final Annual Period as described in Table 1.1 of the Performance Assurance, Exhibit C, or the period from the Guarantee Date until the termination of this Agreement, whichever occurs earlier.
Permitted Users means the CLIENT, its employees and agents.
Person or Persons means any individual, corporation, partnership, limited liability company, association, joint stock company, trust, unincorporated organization, joint venture, government or political subdivision or agency thereof.
Release means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing of any Hazardous Materials into the environment, including the abandonment or discard of barrels, containers, and other closed receptacles containing any Hazardous Materials.
Savings means the Parties’ intended result from implementing all FIMs. Savings can be derived from reductions in energy or utility consumption, reductions in operating expenses, a changed utility rate classification or a combination thereof. The Savings that are achieved from reduced energy or utility consumption are converted to a dollar figure based upon the calculation in Article 4.1.1 and as detailed in the Performance Assurance, Exhibit C. When converted to a dollar figure, these Savings become energy cost savings. Operational Savings are only expressed in a dollar figure.
Savings Shortfall means the Annual Realized Savings less the Guaranteed Annual Savings for the Annual Period resulting in an amount less than zero.
PERFORMANCE CONTRACTING AGREEMENT
Agreement
Smart Infrastructure PCA-100 PUBLIC version 2019v2
Services means those services to be provided by SIEMENS as described in the Scope of Work and Services, Exhibit A.
SIEMENS Permits means the Applicable Permits that SIEMENS is required to obtain in SIEMENS’s name in order to perform the Work under Applicable Law (as it exists on the Effective Date).
SIEMENS Pre-existing Intellectual Property means any Intellectual Property: (i) that has been conceived or developed by an employee or subcontractor of SIEMENS before SIEMENS performs any Work or Services under this Agreement; (ii) that is conceived or developed by such employee or subcontractor at any time wholly independently of SIEMENS performing the Work under this Agreement; or, (iii) if developed while performing the Work under this Agreement, where the development of Intellectual Property for the benefit of the CLIENT is not expressly identified as a FIM or part of a FIM. SIEMENS Pre-existing Property is included in all reports, notes, calculations, data, drawings, estimates, specifications, manuals, documents, all computer programs, codes and computerized materials prepared by or for SIEMENS.
SIEMENS Product means a product, including Software Product and/or Equipment, offered for sale or license by SIEMENS or its affiliates or subsidiaries and developed prior to performing the Work or SIEMENS rendering services in connection with this Agreement. A SIEMENS Product also includes improvements or modifications to any Equipment and any Software Product developed by SIEMENS or developed as part of the Work, including any SIEMENS Product that is configured or modified for operation at a site specified by the CLIENT. Any information that is provided by the CLIENT and incorporated into a SIEMENS Product is not, by itself, a SIEMENS Product. A compilation of such information and the product of such compilation, however, is a SIEMENS Product.
Software Product means any software that is owned or licensed by SIEMENS or its affiliates and that is either separately deliverable for use in the Equipment or for use in a computer system owned by the CLIENT or delivered as firmware embedded in the Equipment.
Stipulated Savings are a sub-category of Guaranteed Savings that do not require post-FIM implementation measurement and verification because they are agreed upon by the Parties based upon representations made to SIEMENS by the CLIENT and through the application of generally accepted analytical formulae. As such, Stipulated Savings are agreed upon in advance by the Parties and cannot be changed. When used as a methodology for representing a FIM’s energy savings, such methodology is not recognized as a measurement and verification methodology under IPMVP. Therefore, where the IPMVP measurement methodologies are required, a methodology other than Stipulated Savings must be used to calculate energy savings.
Substantial Completion or Substantially Complete means the Work, or any identifiable portion thereof, which is sufficiently complete, in accordance with the provisions of this Agreement relating to the Scope of the Work and Services, Exhibit A, such that the CLIENT will be able to realize from such Work substantially all of the practical benefits intended to be gained therefrom, or otherwise employ the Work or the FIMs for their intended purposes.
Therm is a measure of energy equal to 100,000 BTUs.
Total Guaranteed Savings means the sum of the Savings that are guaranteed for all Annual Periods during the Performance Guarantee Period (inclusive of the Construction Period, if applicable). The Total Guaranteed Savings are reflected in Tables
1.1 and 1.2 in the Performance Assurance, Exhibit C.
Work means collective labor, Equipment and services comprising the FIMs to be performed by SIEMENS, as described in the Scope of Work and Services, Exhibit A.
Work Product Deliverable means the tangible form of a report or drawing specifically developed for, commissioned by and deliverable to the CLIENT in connection with the Work to be performed by SIEMENS under this Agreement.
Article 3
General
3.1 The Parties hereto acknowledge and agree that this Agreement has been negotiated at arm’s length and among the Parties equally sophisticated and knowledgeable as to the subject matter of this Agreement. Each party has conferred, or has had the opportunity to confer, with their respective legal counsel. Accordingly, in the event any claim is made relating to any conflict, omission, or ambiguity in this Agreement, no presumption, burden of proof, or persuasion shall be implied by virtue of the fact that this Agreement was drafted by or at the request of a particular party or its legal counsel.
3.2 The CLIENT hereby retains SIEMENS as an independent contractor, not an agent or employee of the CLIENT, to perform and provide, or cause to be performed and provided, and SIEMENS hereby agrees to perform and provide, or cause to be performed or provided, the Work and Services set forth in Exhibit A all in accordance with the terms and conditions of this Agreement. No employee or agent of SIEMENS shall be, or shall be deemed to be, an employee or agent of the CLIENT.
PERFORMANCE CONTRACTING AGREEMENT
Agreement
Smart Infrastructure PCA-100 PUBLIC version 2019v2
3.3 SIEMENS shall have exclusive control of the manner and means of performing the Work in accordance with the requirements of the Agreement. SIEMENS, however, has no authority to act or make any agreements or representations on behalf of the CLIENT.
3.4 SIEMENS represents, warrants and covenants to the CLIENT that:
(a) It has all requisite corporate power to enter into this Agreement, and that its execution hereof has been duly authorized and does not and will not constitute a breach or violation of any of SIEMENS organizational documents, any Applicable Law, or any agreements with third parties; (b) It has done and will continue to do all things necessary to preserve and keep in full force and effect its existence and the Agreement;
(c) This Agreement is the legal, valid and binding obligation of SIEMENS, in accordance with its terms, and all requirements have been met and procedures have been followed by SIEMENS to ensure the enforceability of the Agreement;
(d) To SIEMENS best knowledge, there is no pending or threatened, suit, action, litigation or proceeding against or affecting SIEMENS that affects the validity or enforceability of this Agreement; and, (e) It is duly authorized to do business in all locations where the Work and Services are to be performed.
3.5 The CLIENT represents, warrants and covenants to SIEMENS that:
(a) It has all requisite corporate power and/or statutory authority to enter into this Agreement, and that its execution hereof has been duly authorized and does not and will not constitute a breach or violation of any of the CLIENT’s organizational documents, any Applicable Law, or any agreements with third parties; (b) It has done and will continue to do all things necessary to preserve and keep in full force and effect its existence and the Agreement;
(c) This Agreement is the legal, valid and binding obligation of the CLIENT, in accordance with its terms, and all requirements have been met and procedures have been followed by the CLIENT to ensure the enforceability of the Agreement;
(d) To the CLIENT’s best knowledge, there is no pending or threatened, suit, action, litigation or proceeding against or affecting the CLIENT that affects the validity or enforceability of this Agreement; and, (e) The CLIENT has consulted with its legal counsel and is relying on the advice of its counsel concerning all legal issues related to this Agreement, and is not relying on SIEMENS in this regard.
Article 4
Performance Guarantee
4.1 The Annual Realized Savings generated during each Annual Period will be no less than the Guaranteed Annual Savings as shown in Tables 1.1 and 1.2 of the Performance Assurance, Exhibit C, subject to the limits in Section 4.8. The measurement and verification calculation methodology for determining the Savings is set forth in the Performance Assurance, Exhibit C.
4.1.1General. Except as otherwise provided, energy savings will be calculated for each month of each Annual Period as the product of (a) “units of energy saved” (kWh, Therms, GJ, etc.) multiplied by (b) “cost of energy.” (a) Units of energy saved are calculated by 1) assuming the Contracted Baseline has been maintained per Section 4.3 below, and 2) subtracting the then current period measured units of energy consumed from the Baseline units of energy defined in Article 5 of Exhibit C. (b) Costs of energy are defined in Article 6 of Exhibit C-Utility Rate Structures and Escalation Rates.
4.2 Any future Escalation Rates to be applied to utility, energy or other costs are set forth in Exhibit C. SIEMENS and the CLIENT agree that the Baseline data set forth in Exhibit C is a full and accurate reflection of the existing Facility, equipment, operation, business use and energy usage, and that such Baseline data will be the basis on which all future energy use will be compared in order to determine the Annual Realized Savings.
4.3 SIEMENS and the CLIENT agree that the Contracted Baseline fully described in Exhibit C will represent the new operating and/or equipment profile of the Facility resulting from the FIM implementation. The Performance Guarantee is dependent upon and is subject to the express condition that the CLIENT operates and maintains its Facilities within the Contracted Baseline parameters, as may be adjusted in accordance with the terms herein, during the entire term of the Performance Guarantee Period.
PERFORMANCE CONTRACTING AGREEMENT
Agreement
Smart Infrastructure PCA-100 PUBLIC version 2019v2
4.4 The CLIENT agrees to notify SIEMENS prior to or within thirty (30) days of CLIENT’s knowledge of any Material Change.
4.5 Within thirty (30) days of notice of a Material Change, SIEMENS’ discovery of a Material Change and with prompt notice to CLIENT, SIEMENS will either:
(a) Require an adjustment to the Performance Assurance and the Performance Guarantee as a result of the Material Change; or,
(b) Where a commercially reasonable adjustment to the Performance Guarantee is unavailable, terminate both the Performance Assurance and the Performance Guarantee.
4.6 A Performance Guarantee Period savings reconciliation as identified in Section 4.1 will be performed at the end of each Annual Period as follows:
(a) Within ninety (90) days of the Guarantee Date, the Construction Period Savings shall be reconciled and applied to the calculation of the first Annual Period’s Annual Realized Savings. (b) At the conclusion of each Annual Period, SIEMENS will calculate the Annual Realized Savings and compare the calculated amount to the applicable Guaranteed Annual Savings amount. (c) Where the Annual Realized Savings are less than the Guaranteed Annual Savings, a Savings Shortfall shall be recorded for the applicable Annual Period.
(d) A Savings Shortfall shall be paid by SIEMENS within sixty (60) days following the CLIENT’s acceptance of the reconciliation and once paid SIEMENS shall have fulfilled its obligations under the Performance Guarantee for the applicable Annual Period.
4.6.1 As the mutual goal of the Parties is to maximize Savings, if SIEMENS can correct a Savings Shortfall through an operational improvement at no expense or material inconvenience to the CLIENT and without future operational expenses, and the CLIENT declines to allow such operational improvement, then any future Savings Shortfall that the improvement would have corrected will be negated by deeming the value of the Savings Shortfall as Savings achieved and adding the amount of same to the Annual Realized Savings calculations for each Annual Period thereafter.
4.7 The Performance Guarantee is dependent upon and is subject to the express condition that the CLIENT maintains the PASP during the entire Performance Guarantee Period. If the CLIENT fails to maintain, breaches, cancels or otherwise causes the termination of the PASP then; (a) The Performance Guarantee shall terminate immediately and be void and of no force or effect; or, (b) Where termination of the Performance Guarantee acts to render the Agreement in violation of Applicable Law, all Guaranteed Savings thereafter shall be determined to have been achieved and SIEMENS shall have been deemed to have met its Performance Guarantee obligations under this Agreement for each and every Annual Period thereafter without the obligation to provide the CLIENT, or any third-party as the case may be, with any further Annual Performance Assurance Reports.
4.8 The payments and credits based on Savings Shortfalls, if any, are the sole remedy of the CLIENT under this Performance Guarantee. ANY PAYMENTS MADE OR TO BE MADE TO THE CLIENT UNDER THE TERMS OF THIS
PERFORMANCE GUARANTEE SHALL NOT EXCEED THE PAYMENTS ACTUALLY MADE BY CLIENT TO EITHER
SIEMENS AND/OR A THIRD-PARTY (IN THE EVENT THAT THE CLIENT HAS FINANCED THE TRANSACTION) FOR THE AGGREGATE OF: THE PRICE, AS DEFINED IN EXHIBIT B, ARTICLE 1.1; THE PASP PAYMENTS; THE MSP PAYMENTS, IF ANY; AND, IF APPLICABLE, THE CLIENT’S COST OF FINANCING THE WORK. The CLIENT’s cost of financing the Work is the cost of financing calculated either: (a) On the date that the escrow account is funded in accordance with Exhibit B, Article 1.2; or, (b) On the Effective Contract Date if the escrow requirement is expressly waived by SIEMENS.
4.9 The CLIENT represents that all existing equipment that is not installed by SIEMENS under this Agreement but is deemed necessary to achieve the Performance Guarantee, is in satisfactory working condition. Prior to the beginning of the Performance Guarantee Period, SIEMENS will have inspected all such existing equipment and reported any deficiencies to the CLIENT. To the extent that the deficiencies are not remedied by the CLIENT prior to the Guarantee Date, the adverse effect on the ability of the Project to attain the necessary Guaranteed Savings shall be factored into the Annual Performance Assurance Report and, if necessary, the Performance Guarantee shall be adjusted accordingly.
4.10 If the Equipment or the existing equipment is altered or moved by any person (including the CLIENT) other than SIEMENS or a person authorized by SIEMENS, the CLIENT shall immediately notify SIEMENS in writing, and SIEMENS reserves the right to perform a reacceptance test on, or if necessary a re-commissioning of, the system at the CLIENT’s expense in order to determine if a Material Change has occurred.
PERFORMANCE CONTRACTING AGREEMENT
Agreement
Smart Infrastructure PCA-100 PUBLIC version 2019v2
4.11 SIEMENS will have no liability or obligation to continue providing PASP Services or any Guaranteed Savings under the Performance Guarantee in the event that the CLIENT fails to:
(a) Authorize a re-acceptance test or re-commissioning that SIEMENS reasonably deems necessary in order to determine if a Material Change has occurred;
(b) Provide access to any Facility where Work is to be performed; (c) Service and maintain all Equipment in accordance with the manufacturers’ recommendations in order to prevent a Savings Shortfall; or,
(d) Provide SIEMENS with accurate Facility operating information as soon as such information becomes reasonably available to the CLIENT, including energy usage and cost, executed preventive maintenance and repair records, building or equipment additions, and occupancy levels during each Annual Period.
4.12 Unless expressly contrary to Applicable Law, should the CLIENT decide to discontinue the PASP before the end of the Performance Guarantee Period, the CLIENT will give SIEMENS thirty (30) days prior written notice and in such notice indicate that the CLIENT has selected one of the following:
(a) The CLIENT will re-invest the avoided cost of cancellation of the PASP into Facility improvements and services that improve the overall Facility’s performance and which improvements and services are implemented by SIEMENS; or,
(b) The CLIENT will pay to SIEMENS % of the remaining value left in the PASP Annual Period, as a liquidated damage and not as a penalty, to compensate SIEMENS for SIEMENS’ up-front costs and expenses in preparing to perform the PASP as contracted for the Annual Period.
4.13 Unless expressly contrary to Applicable Law, any disputes concerning the calculation of the Annual Realized Savings or changes to the Contracted Baseline that are not resolved by negotiation between the Parties within thirty (30) days of the notice of the dispute, will be resolved by a third-party professional engineering firm which is reasonably acceptable to both SIEMENS and the CLIENT. The determination of such firm will be final and binding upon CLIENT and SIEMENS.
SIEMENS and the CLIENT will each be responsible for half of the fees of such firm.
Article 5
Work by SIEMENS
5.1 SIEMENS will perform the Work expressly described in this Agreement and in any work release documents or change orders that are issued under this Agreement and signed by both Parties. The Work performed by SIEMENS shall be conducted in a workmanlike manner.
5.2 SIEMENS shall perform the Work during its normal hours, Monday through Friday inclusive, excluding holidays, unless otherwise agreed herein. The CLIENT shall make the Facility available so Work may proceed in an efficient manner.
5.3 SIEMENS is not required to conduct safety, reacceptance or other tests, install new devices or equipment or make modifications to any Equipment unless expressly made a part of the Work identified in the Scope of Work and Services, Exhibit A. Any CLIENT request to change the scope or the nature of the Work or Services must be in the form of a mutually agreed change order, effective only when executed by the Parties.
5.4 All Work Product Deliverables shall become the CLIENT’s property upon receipt by CLIENT. SIEMENS may retain file copies of such Work Product Deliverables. If any Instruments are provided to the CLIENT under this Agreement, any such Instruments shall remain SIEMENS’ property, including the Intellectual Property conceived or developed by SIEMENS in the Instruments. All SIEMENS’ Pre-existing Intellectual Property that may be included in the Deliverables provided to the CLIENT under this Agreement shall also remain SIEMENS property including the SIEMENS Pre-existing Intellectual Property included in the Work Product Deliverables. All Work Product Deliverables and any Instruments provided to the CLIENT are for Permitted Users’ use and only for the purposes disclosed to SIEMENS. SIEMENS hereby grants the CLIENT a royalty-free (once payments due under this Agreement are paid to SIEMENS), non-transferable, perpetual, nonexclusive license to use any SIEMENS Pre-existing Intellectual Property solely as incorporated into the Deliverables and SIEMENS’ Intellectual Property as incorporated into any Instruments provided to the CLIENT under this Agreement. Under such license, and following agreement to be bound to such separate confidentiality provisions that may exist between the Parties, Permitted Users shall have a non-exclusive, non-transferable, limited license right to:
(a) Use, in object code form only, the Software Products included in the Deliverables (“Software Deliverables”); (b) Make and retain archival and emergency copies of such Software Deliverables (subject to any confidentiality provisions) except if the Software Deliverable is embedded in the Equipment; and,
PERFORMANCE CONTRACTING AGREEMENT
Agreement
Smart Infrastructure PCA-100 PUBLIC version 2019v2
(c) Use all such Deliverables and such Instruments, provided however, the Deliverables and Instruments shall not be used or relied upon by any parties other than Permitted Users, and such use shall be limited to the particular project and location for which the Deliverables are provided. All Deliverables provided to the CLIENT are for Permitted Users’ use only for the purposes disclosed to SIEMENS, and the CLIENT shall not transfer them to others or use them or permit them to be used for any extension of the Work or any other project or purpose, without SIEMENS’ express written consent.
5.4.1 Any reuse of such Deliverables or such Instruments for other projects or locations without the written consent of SIEMENS, or use by any party other than Permitted Users will be at Permitted Users’ risk and without liability to SIEMENS; and, the CLIENT shall indemnify, defend and hold SIEMENS harmless from any claims, losses or damages arising therefrom.
5.4.2 In consideration of such license, CLIENT agrees not to reverse engineer any Equipment or Software Product to reconstruct or discover any source code, object code, firmware, underlying ideas, or algorithms of such Equipment or Software Product even to the extent such restriction is allowable under Applicable Law.
5.4.3 Nothing contained in this Agreement shall be interpreted or construed to convey to the CLIENT the preexisting Intellectual Property rights of any third party incorporated into the Deliverables. CLIENT agrees to take delivery of any Software Deliverables subject to any applicable SIEMENS or third party end-user license agreement (EULA) accompanying such Software Deliverable, or if no EULA or third party license accompanies such SIEMENS software, the EULA posted at www.usa.siemens.com/btcpseula (SIEMENS’ EULA web site) for such SIEMENS software. Notwithstanding the foregoing, in the event of any inconsistency between the terms of the Agreement and the EULA for such SIEMENS software, the terms of the Agreement shall govern over the EULA except for the use and metric restrictions set forth in the EULA for such SIEMENS software shall take precedence and supersede the terms of the Agreement.
5.5 SIEMENS shall obtain and maintain the SIEMENS Permits. If any SIEMENS Permit (or application therefor) requires action by the CLIENT, the CLIENT shall, upon the request of SIEMENS, take such action as is reasonably appropriate.
5.6 SIEMENS shall be responsible for any portion of the Work performed by any subcontractor of SIEMENS. SIEMENS shall not have any responsibility, duty or authority to direct, supervise or oversee any contractor of the CLIENT or their work or to provide the means, methods or sequence of their work or to stop their work. SIEMENS’ work and/or presence at the Facility shall not relieve others of their responsibility to the CLIENT or to others.
5.7 SIEMENS warrants that:
(a) Unless otherwise agreed, all Equipment shall be new and of good quality. Until one year from the date the Equipment is installed, all Equipment manufactured by SIEMENS or bearing its nameplate will be free from defects in material and workmanship arising from normal use and service. (b) Labor for all Work, excluding PASP or MSP Services, is warranted to be free from defects in workmanship for one year after the Work is performed. PASP Services and MSP Services are warranted to be free from defects in workmanship for ninety (90) days after the Services are performed.
5.8 Warranty Limitation:
(a) The limited warranties set forth in Section 5.7 will be void as to, and shall not apply to, any Equipment (i) repaired, altered or improperly installed by any person other than SIEMENS or its authorized representative; (ii) which the CLIENT or a third party subjects to unreasonable or improper use or storage, uses beyond rated conditions, operates other than per SIEMENS or the manufacturer’s instructions, or otherwise subjects to improper maintenance, negligence or accident; (iii) damaged because of any use of the Equipment after the CLIENT has, or should have had, knowledge of any defect in the Equipment; or (iv) not manufactured, fabricated and assembled by SIEMENS or not bearing SIEMENS nameplate. However, SIEMENS assigns to the CLIENT, without recourse, any and all assignable warranties available from any manufacturer, supplier, or subcontractor of such Equipment. (b) Any claim under the limited warranty granted above must be made in writing to SIEMENS within thirty (30) days after discovery of the claimed defect unless discovered directly by SIEMENS. Such limited warranty only extends to the CLIENT and not to any subsequent owner of the Equipment. The CLIENT’s sole and exclusive remedy for any Equipment or Services not conforming with this limited warranty is limited to, at SIEMENS’ option: (i) repair or replacement of defective components of covered Equipment; (ii) re-performance of the defective portion of the Services; or (iii) to the extent previously paid and itemized, the issuance of a credit or refund for the original purchase price of such defective component or portion of the Equipment or Services.
PERFORMANCE CONTRACTING AGREEMENT
Agreement
Smart Infrastructure PCA-100 PUBLIC version 2019v2
(c) SIEMENS shall not be required to repair or replace more than the component(s) of the Equipment or the portion of the Work and Services actually found to be defective. SIEMENS’ warranty liability shall not exceed the purchase price of such item. Repaired or replaced Equipment or Services will be warranted hereunder only for the remaining portion of the original warranty period.
5.9 THE EXPRESS LIMITED WARRANTIES PROVIDED ABOVE ARE IN LIEU OF AND EXCLUDE ALL OTHER
WARRANTIES, STATUTORY, EXPRESS, OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE HEREBY EXPRESSLY DISCLAIMED. THE LIMITED EXPRESS WARRANTIES AND REPRESENTATIONS SET FORTH IN THIS
AGREEMENT MAY ONLY BE MODIFIED OR SUPPLEMENTED IN A WRITING EXECUTED BY A DULY AUTHORIZED SIGNATORY OF EACH PARTY.
5.10 SIEMENS will not be responsible for the maintenance, repair or replacement of, or Services necessitated by reason of:
(a) Non-maintainable, non-replaceable or obsolete parts of the Equipment, including but not limited to: ductwork, shell and tubes, heat exchangers, coils, unit cabinets, casings, refractory material, electrical wiring, water and pneumatic piping, structural supports, cooling tower fill, slats and basins, etc., unless covered by the warranty provisions herein or otherwise specifically stated herein; or
(b) The CLIENT’s or a third-party’s negligence, abuse, misuse, improper or inadequate repairs or modifications, improper operation, lack of operator maintenance or skill, corrosion, erosion, improper or inadequate water treatment, electrolytic action, chemical action, failure to comply with manufacturer’s operating and environmental requirements, Acts of God, or other reasons beyond SIEMENS’ control. Unless expressly agreed in writing, SIEMENS is not responsible for the removal or reinstallation of replacement valves, dampers, or waterflow and tamper switches with respect to pipes and ductwork, including vent or drain system. SIEMENS ASSUMES NO
RESPONSIBILITY FOR ANY SERVICE PERFORMED ON ANY EQUIPMENT OTHER THAN THAT PERFORMED BY SIEMENS OR ITS AGENTS.
5.11 SIEMENS may suspend its performance of the Work at the Facility, if, in the reasonable opinion of SIEMENS, based upon industry standards and SIEMENS’ applicable safety programs, conditions at the Facility for which SIEMENS is not responsible become unsafe for the continued performance of the Work and such conditions are not rectified by CLIENT immediately. SIEMENS shall resume its performance of the Work promptly after the unsafe conditions are rectified by CLIENT.
Article 6
CLIENT Responsibilities
6.1 The CLIENT, without cost to SIEMENS, shall:
(a) Designate a contact person with authority to make decisions for the CLIENT regarding the Work and provide SIEMENS with information sufficient to contact such person in an emergency; (b) Coordinate the work of contractors under CLIENT’s sole control so as not to disrupt the Work and Services proceeding in an efficient manner;
(c) Provide or arrange for 24 hour, 7 day per week access and make all reasonable provisions for SIEMENS to enter any Facility where Work is to be performed so that Work may proceed in an efficient manner; (d) Permit SIEMENS to control and/or operate all building controls, systems, apparatus, equipment and machinery necessary to perform the Work;
(e) Furnish SIEMENS with blueprints, surveys, legal descriptions, waste management plans and all other available information pertinent to the Work and any Facility where the Work is to be performed as may be reasonably requested by SIEMENS. Such plans and blueprints, along with an executed copy of this Agreement, with its Exhibits, shall be kept and maintained in CLIENT’s files for a period of fifteen (15) years from the Effective Contract Date;
(f) Furnish SIEMENS with all approvals, permits and consents from Governmental Authorities and others as may be required for performance of the Work, except for SIEMENS Permits; (g) In accordance with Article 11 hereof, promptly notify SIEMENS of all known or suspected Hazardous Materials at the Facility, of any contamination of the Facility by Hazardous Material, and of any other conditions requiring special care or which may reasonably be expected to affect the Work, and provide SIEMENS with any available documents describing the quantity, nature, location and extent of such materials, contamination or conditions;
PERFORMANCE CONTRACTING AGREEMENT
Agreement
Smart Infrastructure PCA-100 PUBLIC version 2019v2
(h) Comply with Applicable Law and provide any notices required to be given to any Governmental Authority in connection with the Work, except such notices SIEMENS has expressly agreed in writing to give; (i) Provide SIEMENS with legally required materials and information (including but not limited to Material Safety Data Sheets) related to all Hazardous Materials located at any Facility where the Work is to be performed; (j) Furnish SIEMENS with any contingency plans, safety programs and other policies, plans or programs related to any Facility where the Work is to be performed;
(k) Operate, service and maintain all Equipment according to the manufacturer’s recommendations including those set forth in the manufacturer’s operating manuals or instructions, as well as all requirements of Applicable Law or of authorities having jurisdiction. The CLIENT shall furnish all needed servicing and parts for said FIMs, which parts shall become part of the FIMs. Such Equipment shall be operated only in the specified operating environment, which shall be supplied by the CLIENT, including without limitation: (1) suitable electrical service, including clean, stable, properly conditioned power, to all Equipment; (2) telephone lines, capacity and connectivity as required by such Equipment; and (3) heat, light, air conditioning or other environmental controls, and other utilities in accordance with the specifications for the Equipment;
(l) Promptly notify SIEMENS of any unusual operating conditions, hours of usage, system malfunctions, installed equipment or building alterations that may affect the Equipment or energy usage or any Services; and, (m) If applicable, provide and pay for a dedicated voice grade dial-up phone line, or a mutually agreed communication method, and install a terminal block, or an equivalent communication mechanism, in a mutually agreed upon location. All on-line service Equipment (excluding the phone line) will remain the property of SIEMENS unless otherwise stated herein.
6.2 Unless contrary to Applicable Law, the CLIENT acknowledges that the technical and pricing information contained in this Agreement is confidential and proprietary to SIEMENS and agrees not to disclose it or otherwise make it available to others without SIEMENS’ express written consent.
6.3 The CLIENT acknowledges that it is now and shall at all times remain in control of the Facility. Except as expressly provided herein, SIEMENS shall not be responsible for the adequacy of the health or safety programs or precautions related to the CLIENT’s activities or operations, the CLIENT’s other contractor(s), the work of any other person or entity, or Facility conditions. SIEMENS shall not be responsible for inspecting, observing, reporting or correcting health or safety conditions or deficiencies of the CLIENT or others at the Facility. So as not to discourage SIEMENS from voluntarily addressing health or safety issues while at the Facility, in the event SIEMENS does address such issues by making observations, reports, suggestions or otherwise, the CLIENT shall not hold, or attempt to hold, SIEMENS liable or responsible on account thereof.
Article 7
Changes and Delays
7.1 As the Work is performed, Applicable Law or conditions (as they exist on the Effective Date) may change, or circumstances outside SIEMENS’ reasonable control may develop, which would require SIEMENS to expend additional costs, effort or time to complete the Work, in which case SIEMENS will notify the CLIENT and an equitable adjustment will be made to SIEMENS’ compensation and the time for performance. In the event such changes require the Work to be suspended or terminated, SIEMENS shall be compensated for Work previously performed and for costs reasonably incurred in connection with the suspension or termination.
7.2 Either party may request additions, deletions, modifications or changes to the Work. Any such requests shall only become effective upon execution of a written agreement by authorized representatives of both Parties.
7.3 SIEMENS may, in its sole discretion, substitute alternative parts, goods or equipment in the performance of the Work, provided that any such substitution shall be of an equal or better quality.
7.4 SIEMENS shall not be responsible for loss, delay, injury, damage or failure of performance that may be caused by circumstances beyond its control, including but not restricted to acts or omissions by the CLIENT or its employees, agents or contractors, Acts of God, war, civil commotion, acts or omissions of government authorities, fire, theft, corrosion, flood, water damage, lightning, freeze-ups, strikes, lockouts, differences with workmen, riots, explosions, quarantine restrictions, delays in transportation, or shortage of vehicles, fuel, labor or materials. In the event of such delay or failure, the time for performance shall be extended by a period equal to the time lost plus a reasonable recovery period and the compensation shall be equitably adjusted to compensate for additional costs SIEMENS incurs due to such delay. If any such delay exceeds sixty (60) days, SIEMENS may terminate this Agreement upon three (3) days’ notice to the CLIENT
PERFORMANCE CONTRACTING AGREEMENT
Agreement
Smart Infrastructure PCA-100 PUBLIC version 2019v2
and the CLIENT shall promptly pay SIEMENS for the allocable portion of the Work completed, for any costs and expenses of termination, and for any loss or damage incurred with respect to materials, equipment, tools and machinery, including reasonable overhead and profit.
Article 8
Compensation
8.1 The aggregate amount paid by CLIENT provides for and is solely in consideration of the Scope of Work and Services described in Exhibit A, and is detailed in Exhibit B.
8.2 SIEMENS will invoice the CLIENT in accordance with the schedules set forth in Exhibit B. Unless otherwise agreed in writing, invoices are due and payable upon receipt by the CLIENT. If the CLIENT disagrees with any portion of an invoice, it shall notify SIEMENS in writing of the amount in dispute and the reason for its disagreement within 21 days of receipt of the invoice, and shall pay the portion not in dispute.
8.3 SIEMENS may suspend or terminate the Work or Services at any time if payment is not received when due. In such event, SIEMENS shall be entitled to compensation for the Work or Services previously performed and for costs reasonably incurred in connection with the suspension or termination.
8.4 On amounts not paid within thirty (30) days of invoice date, the CLIENT shall pay interest from invoice date until payment is received at the lesser of 12% per annum or the maximum rate allowed by law. The CLIENT shall reimburse SIEMENS for SIEMENS’ costs and expenses (including reasonable attorney and witness fees) incurred for collection under this Agreement.
8.5 Except to the extent expressly agreed herein, SIEMENS’ fees do not include any taxes, excises, fees, duties, tariffs charged on the importation of goods into the United States, or other government charges related to the Work or Services.
The CLIENT shall pay such amounts or reimburse SIEMENS for any such amounts SIEMENS pays to the extent such charges are lawfully due and payable by CLIENT and have been paid or incurred by SIEMENS in furtherance thereof. If the CLIENT claims that the Work or Services is subject to a tax exemption or direct payment permit, it shall provide SIEMENS with a valid exemption certificate or permit and, unless specifically prohibited by law, shall indemnify, defend and hold SIEMENS harmless from any taxes, costs and penalties arising out of the use or acceptance of same.
8.6 All other work or services requested by the CLIENT, including but not limited to the following, shall be separately billed or surcharged on a time and materials basis:
(a) Emergency services, if inspection does not reveal any deficiency covered by the Scope of Work and Services, Exhibit A;
(b) Work and/or services performed at times other than during SIEMENS’ normal working hours, unless otherwise agreed to in Exhibit A; or
(c) Work and/or services performed on equipment not covered by the Scope of Work and Services, Exhibit A.
Article 9
Acceptance
9.1 When SIEMENS believes that all or an independent definable phase or portion of the Work is Substantially Complete, SIEMENS will submit a Certificate of Substantial Completion to the CLIENT which shall be subject to the following:
(a) If the CLIENT concurs that the described portion of the Work as performed is Substantially Complete, the CLIENT will sign the Certificate of Substantial Completion and return it to SIEMENS; (b) A Certificate of Substantial Completion may include, as an attachment to it, an Outstanding Items List prepared by SIEMENS;
(c) If the CLIENT does not concur that the Work is Substantially Complete, then, within five (5) business days of receiving the Certificate of Substantial Completion, the CLIENT shall notify SIEMENS in writing of the reasons it believes the Work is not Substantially Complete;
(d) If SIEMENS disagrees with the CLIENT as to whether the Work is Substantially Complete, SIEMENS shall notify the CLIENT of a dispute and such dispute shall be resolved in accordance with Section 9.3 herein; (e) If, within five (5) business days of receiving the Certificate of Substantial Completion the CLIENT fails to sign the Certificate, and within the same period the CLIENT’s Representative does not deliver to SIEMENS a written notice of the reasons the CLIENT believes that the Work is not Substantially Complete, then in the mutual interests of the
PERFORMANCE CONTRACTING AGREEMENT
Agreement
Smart Infrastructure PCA-100 PUBLIC version 2019v2
Project proceeding in a timely manner, the CLIENT will be deemed to have agreed to, signed and returned the Certificate of Substantial Completion.
9.2 After the CLIENT signs and returns, or is deemed to have signed and returned to SIEMENS all of the Certificates of Substantial Completion relating to the Work, and after SIEMENS corrects and completes all of the items on all of the Outstanding Items Lists, if any, SIEMENS will submit to the CLIENT a Certificate of Final Completion which shall be subject to the following:
(a) If the CLIENT concurs that all of the items on all of the Outstanding Items Lists have been completed or corrected, the CLIENT will indicate its final acceptance of the Work by signing the Certificate of Final Completion and returning it to SIEMENS;
(b) If the CLIENT does not concur that all of the items on all of the Outstanding Items Lists have been completed or corrected, then the CLIENT shall, within five (5) business days of receiving the Certificate of Final Completion, identify the items that, it believes, were not completed or corrected; (c) If SIEMENS disagrees that the items identified by the CLIENT have not been completed or corrected, SIEMENS shall notify the CLIENT of a dispute and such dispute shall be resolved in accordance with section 9.3 herein; (d) If, within five (5) business days of receiving a Certificate of Final Completion, the CLIENT fails to sign that Certificate, and, within the same period the CLIENT’s Representative does not deliver to SIEMENS a written notice identifying the items on the Outstanding Items List(s) that, the CLIENT believes, were not completed or corrected, then the CLIENT will be deemed to have agreed to and signed and returned the Certificate of Final Completion.
9.3 Any disputes concerning the Substantial Completion or the Final Completion of the Work will be resolved by submitting the issue to a third party professional engineering firm and which is reasonably acceptable to both SIEMENS and the CLIENT. The determination of this firm with respect to Final Completion or Substantial Completion will be final and binding upon the Parties. SIEMENS and the CLIENT shall share equally the costs or fees for such firm in connection with such dispute resolution process.
Article 10
Insurance and Allocation of Risk
10.1 SIEMENS shall maintain in full force and effect the following insurance coverage and limits specified below commencing ten (10) days after the Effective Contract Date or, where applicable, the date that the CLIENT closes its financing, whichever is later, and continuing until the date of the Certificate of Final Completion. The required limits of insurance may be satisfied with any combination of primary and excess coverage. SIEMENS or SIEMENS’ insurance carrier shall endeavor to provide the CLIENT with thirty (30) days’ prior notice of cancellation, termination or material alteration of any insurance coverage set forth in this Article 10.1. In addition, SIEMENS’ insurance shall be maintained with insurance companies having an A.M. Best rating of “A-“ or better and a financial size category of “VII” or higher (or a comparable rating by any other rating entity reasonably acceptable to the CLIENT and evidenced by the CLIENT’s written confirmation, which acceptance shall not be unreasonably withheld). SIEMENS shall provide the CLIENT applicable insurance certificates of such coverage prior to SIEMENS’ commencement of any Work at the Facility.
10.1.1 SIEMENS has the responsibility and obligation to procure and maintain the following insurance policies:
(a) Workers’ Compensation Insurance in accordance with Applicable Law; (b) Employer’s Liability Insurance with a limit of One Million Dollars ($1,000,000) per accident, per employee for occupational disease, and in the aggregate for occupational disease; (c) Commercial General Liability Insurance with coverage written for bodily injury and broad form property damage on an “occurrence” basis with a limit of Five Million Dollars ($5,000,000) per occurrence and Five Million Dollars ($5,000,000) aggregate. This policy shall include blanket contractual coverage, railroad protective liability coverage, and coverage for premises, operations, explosion, collapse and underground (XCU) hazards, and products/completed operations;
(d) Contractual Liability insuring the obligations assumed by SIEMENS in this Agreement; and, (e) Broad Form Property Damage (including Completed Operations).
10.1.2 SIEMENS shall name the CLIENT as an additional insured to the extent bodily injury (including death) or third party property damage results from the negligent acts or omissions of SIEMENS and require that this policy contain a “separation of insureds” clause.
PERFORMANCE CONTRACTING AGREEMENT
Agreement
Smart Infrastructure PCA-100 PUBLIC version 2019v2
10.1.3 SIEMENS shall require its subcontractors performing Work at the Facility to maintain the types, coverage and limits of insurance which are reasonable in accordance with prudent industry practice and commensurate with the Work to be performed by such subcontractor.
10.2 The CLIENT shall maintain in full force and effect the insurance coverage and limits specified below from the date of SIEMENS’ commencement of Work at the Facility and continuing until the end of the warranty period set forth in Section
5.7(a). The CLIENT or the CLIENT’s insurance carrier shall endeavor to provide SIEMENS with thirty (30) Days’ prior notice of cancellation, termination or material alteration of any insurance coverage set forth in this Section 10.2. In addition, the CLIENT’s insurance shall be maintained with insurance companies having an A.M. Best rating of “A- “ or better and a financial size category of “VII” or higher (or a comparable rating by any other rating entity reasonably acceptable to SIEMENS and evidenced by SIEMENS’ written confirmation, which acceptance shall not be unreasonably withheld). The CLIENT shall provide SIEMENS applicable insurance certificates of such coverage prior to SIEMENS’ commencement of any Work at the Facility. The required limits of insurance may be satisfied with any combination of primary and excess coverage.
(a) Workers’ Compensation Insurance in accordance with Applicable Law applicable to the jurisdiction in which the Work is performed.
(b) Employer’s Liability Insurance with a limit of One Million Dollars ($1,000,000) per accident, per employee for occupational disease, and in the aggregate for occupational disease; (c) Commercial General Liability Insurance with a limit of Five Million Dollars ($5,000,000) per occurrence and Five Million Dollars ($5,000,000) annual aggregate. This policy shall include blanket contractual coverage, railroad protective liability coverage, and coverage for premises, operations, explosion, collapse and underground (XCU) hazards, and products/completed operations. The CLIENT shall name SIEMENS and its subcontractors as additional insureds to the extent bodily injury (including death) or third party property damage results from the negligent acts or omissions of CLIENT or CLIENT’s other contractors, if any. This policy shall contain a “separation of insureds” clause.
10.3 In regard to insurance maintained by either Party, including any property insurance, each such Party hereby waives, for itself and its insurers, all rights of recovery and subrogation which may arise against the other Party and its Affiliates as a result of a payment made by an insurer.
10.4 Title to the Equipment shall pass to the CLIENT on delivery of the Equipment to the Facility. SIEMENS warrants that legal title to and ownership of the Equipment (excluding, however, the Intellectual Property Rights) shall upon such delivery be free and clear of any and all liens, claims, security interests or other encumbrances, subject to any lien of SIEMENS that may arise under Applicable Law that is not otherwise prohibited hereunder.
10.5 Irrespective of the passage of title as provided in Section 10.4, and except for loss or damage due to uninsurable events for which the CLIENT shall be responsible, SIEMENS shall bear the risk of loss and damage with respect to the Work to be supplied by SIEMENS, or Equipment that is within the care, custody and control of SIEMENS, wherever located, that have been or will be incorporated into the Work, until Substantial Completion of such Work. Upon Substantial Completion of such Work, risk of loss and damage shall transfer to the CLIENT and the CLIENT shall assume full and exclusive custody and control of such components of the Work other materials, Equipment and components supplied by SIEMENS, and of all such Work; provided that, CLIENT’s assumption of risk of loss and damage shall not obviate SIEMENS’ obligations to correct any warranty non-conformances in accordance with Article 5.
10.6 SIEMENS shall indemnify the CLIENT from and against all third party claims alleging bodily injury, death or damage to a third party’s tangible property, but only to the extent caused by SIEMENS’ negligent acts or omissions. If the injury or damage is caused by the parties’ joint or contributory negligence, the loss and/or expenses shall be borne by each party in proportion to its degree of fault. No part of the Equipment(s) or the Facility is considered third party property. The CLIENT shall provide SIEMENS with prompt written notice of and shall not acknowledge any third party claims covered by this Section 10.6. SIEMENS has the unrestricted right to select and hire counsel and the exclusive right to conduct the legal defense and/or settle the claim on the CLIENT’s behalf. The CLIENT shall not make any admission(s) which might be prejudicial to SIEMENS and shall not enter into a settlement without the express permission of SIEMENS.
10.7 UNLESS CONTRARY TO APPLICABLE LAW, IN NO EVENT SHALL THE CLIENT OR SIEMENS BE LIABLE UNDER
THIS INDEMNITY OR OTHERWISE UNDER THIS AGREEMENT FOR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE,
EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING COMMERCIAL LOSS, LOSS OF USE, OR LOST PROFITS, HOWEVER CAUSED.
PERFORMANCE CONTRACTING AGREEMENT
Agreement
Smart Infrastructure PCA-100 PUBLIC version 2019v2
10.8 IN ANY EVENT, UNLESS CONTRARY TO APPLICABLE LAW, SIEMENS’ MAXIMUM LIABILITY FOR ANY AND ALL
CLAIMS, LOSSES OR EXPENSES ARISING OUT OF THIS AGREEMENT, OR OUT OF ANY GOODS OR SERVICES
FURNISHED UNDER THIS AGREEMENT, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY,
AGENCY, WARRANTY, TRESPASS, INDEMNITY OR ANY OTHER THEORY OF LIABILITY, SHALL BE LIMITED TO THE TOTAL COMPENSATION RECEIVED BY SIEMENS FROM THE CLIENT UNDER THIS AGREEMENT. The preceding limit shall not apply to the CLIENT’s remedy under the Performance Guarantee as such is limited by Section
4.8. 10.9 THE CLIENT AGREES THAT THE EXCLUSIONS AND LIMITATIONS IN SECTIONS 10.7 AND 10.8 WILL PREVAIL
OVER ANY CONFLICTING TERMS AND CONDITIONS IN THIS AGREEMENT AND MUST BE GIVEN FULL FORCE
AND EFFECT, WHETHER OR NOT ANY OR ALL SUCH REMEDIES ARE DETERMINED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. THESE LIMITATIONS OF LIABILITY ARE EFFECTIVE EVEN IF SIEMENS HAS BEEN ADVISED BY THE CLIENT OF THE POSSIBILITY OF SUCH DAMAGES. THE WAIVERS AND DISCLAIMERS OF LIABILITY, RELEASES FROM LIABILITY AND LIMITATIONS ON LIABILITY EXPRESSED IN SECTION 10.7 AND 10.8 EXTEND TO SIEMENS’ AFFILIATES (AND THEIR EMPLOYEES), PARTNERS, PRINCIPALS, SHAREHOLDERS,
DIRECTORS, OFFICERS, EMPLOYEES, SUPPLIERS OF ANY TIER (AND THEIR EMPLOYEES), AGENTS, AND SUCCESSORS AND ASSIGNS.
10.10 As to Patents and Copyrights:
(a) SIEMENS will, at its option and expense, defend or settle any suit or proceeding brought against the CLIENT based on an allegation that any Work or use thereof for its intended purpose constitutes an infringement of any Patent Cooperation Treaty country member’s patent or misappropriation of a third party’s trade secret or copyright in the country where the Work is delivered by SIEMENS. The CLIENT will promptly give SIEMENS written notice of the suit or proceeding and the authority, information, and assistance needed to defend the claims. The CLIENT shall not acknowledge any such third party proceedings defined under this Section 10.10. SIEMENS shall have the full and exclusive authority to defend and settle such claim(s) and will pay the damages and costs awarded in any suit or proceeding so defended. The CLIENT shall not make any admission(s) which might be prejudicial to SIEMENS and shall not enter into a settlement without SIEMENS’ consent. SIEMENS is not responsible for any settlement made without its prior written consent. If the Work, or any part thereof, as a result of any suit or proceeding so defended is held to constitute infringement or its use by the CLIENT is enjoined, SIEMENS will, at its option and expense, either: (i) procure for the CLIENT the right to continue using said Work; (ii) replace it with substantially equivalent non-infringing Work; or (iii) modify the Work so it is non-infringing. (b) SIEMENS will have no duty or obligation under 10.10(a) if the Work is: (i) supplied according to the CLIENT's design or instructions and compliance therewith has caused SIEMENS to deviate from its normal course of performance; (ii) modified by the CLIENT or its contractors after delivery; or (iii) combined by the CLIENT or its contractors with devices, methods, systems or processes not furnished hereunder and by reason of said design, instruction, modification, or combination a suit is brought against the CLIENT. In addition, if by reason of such design, instruction, modification or combination, a suit or proceeding is brought against SIEMENS, the CLIENT must protect SIEMENS in the same manner and to the same extent that SIEMENS has agreed to protect the CLIENT under Section 10.10(a).
(c) THIS SECTION 10.10 IS AN EXCLUSIVE STATEMENT OF SIEMENS’ DUTIES AND THE CLIENT’S REMEDIES
RELATING TO PATENTS, TRADE SECRETS AND COPYRIGHTS, AND DIRECT OR CONTRIBUTORY INFRINGEMENT THEREOF.
10.11 The Parties acknowledge that the price for which SIEMENS has agreed to perform the Work and obligations under this Agreement was calculated based upon the foregoing allocations of risk, and that each Party has expressly relied on and would not have entered into this Agreement but for such allocations of risk.
Article 11
Hazardous Materials Provisions
11.1 The Work does not include directly or indirectly performing or arranging for the detection, testing, handling, storage, removal, treatment, transportation, disposal, monitoring, abatement or remediation of any contamination of any Facility at which Work is performed and any soil or groundwater at the Facility by Hazardous Materials, including without limitation:
ionization smoke detectors, ballasts, mercury bulb thermostats, used oil, contaminated filters, contaminated absorbents, and refrigerant. Except as expressly disclosed pursuant to Section 11.2, the CLIENT represents and warrants that, to the best of its knowledge following due inquiry, there are no Hazardous Materials present where the Work is to be performed.
PERFORMANCE CONTRACTING AGREEMENT
Agreement
Smart Infrastructure PCA-100 PUBLIC version 2019v2
SIEMENS will notify the CLIENT immediately if it discovers or reasonably suspects the presence of any previously undisclosed Hazardous Material. All Work and Services have been priced and agreed to by SIEMENS in reliance on the CLIENT’s representations as set forth in this Article. The discovery or reasonable suspicion of Hazardous Materials or hazardous conditions at a Facility where SIEMENS is to perform Work, or of contamination of the Facility by Hazardous Materials not previously disclosed pursuant to Section 11.2, shall entitle SIEMENS to suspend the Work immediately, subject to mutual agreement of terms and conditions applicable to any further Work, or to terminate the Work and to be paid for Work previously performed.
11.2 The CLIENT warrants that, prior to the execution of the Agreement, it notified SIEMENS in writing of any and all Hazardous Materials, to the best of its knowledge following due inquiry, known to be present, potentially present or likely to become present at the Facility and provided a copy of any Facility safety policies and information, including but not limited to lock-out and tag procedures, chemical hygiene plan, material safety data sheets, and other items covered or required to be disclosed or maintained by Applicable Law.
11.3 Regardless of whether Hazardous Material was disclosed pursuant to Section 11.2, the CLIENT shall be solely responsible for properly testing, abating, encapsulating, removing, disposing, remedying or neutralizing such Hazardous Materials, and for the costs thereof. Even if an appropriate change order has been entered into pursuant to Section 11.1, SIEMENS shall have the right to stop the Work until the Facility is free from Hazardous Materials. In such event, SIEMENS will receive an equitable extension of time to complete the Work, and compensation for delays caused by Hazardous Materials remediation. In no event shall SIEMENS be required or construed to take title, ownership or responsibility for such Hazardous Materials. The CLIENT shall sign any required waste manifests in conformance with all government regulations, listing the CLIENT as the generator of the waste. If someone other than the CLIENT is the generator of the waste, the CLIENT shall arrange for such other person to sign such manifests.
11.4 Except where expressly prohibited by Applicable Law, for separate consideration of $10 and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the CLIENT shall indemnify, defend and hold SIEMENS harmless from and against any damages, losses, costs, liabilities or expenses (including attorneys’ fees) arising out of any Hazardous Materials or from the CLIENT’s breach of, or failure to perform its obligations under this Article.
11.5 For purposes of this Article 11, in the context of the phrase “to the best of its knowledge following due inquiry”; “knowledge” means actual awareness of the facts by the CLIENT’s directors, officers, employees or agents, or the presence of relevant information contained in the CLIENT’s books or records; and, “due inquiry” means inquiry of those Persons under the CLIENT’s control who should have knowledge of the subject matter of such inquiry.
Article 12
Miscellaneous Provisions
12.1 Notices between the Parties shall be in writing and shall be hand-delivered or sent by certified mail, express courier, or acknowledged telefax properly addressed to the appropriate party. Any such notice shall be deemed to have been received when delivered in-person or when sent by telefax, or five (5) business days subsequent to deposit in the U.S. mails, or one (1) day after deposit with express courier.
12.2 Neither the CLIENT nor SIEMENS shall assign or transfer any rights or obligations under this Agreement, except that either party may assign this Agreement to its affiliates and SIEMENS may use subcontractors in the performance of the Work or Services. Nothing contained in this Agreement shall be construed to give any rights or benefits to anyone other than the CLIENT and SIEMENS without the express written consent of both Parties.
12.3 This Agreement is governed by and construed in accordance with the laws of the State or Commonwealth in which the Facility is located, without regard to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is excluded. BOTH SIEMENS AND THE CLIENT KNOWINGLY,
VOLUNTARILY AND IRREVOCABLY WAIVE ALL RIGHTS TO A JURY TRIAL IN ANY ACTION OR PROCEEDING RELATED IN ANY WAY TO THIS AGREEMENT. Each Party agrees that claims and disputes arising out of this Agreement, with the exception of disputes arising under Article 4 or Article 9, must be decided exclusively in a federal or state court of competent jurisdiction located in the State or Commonwealth in which the Facility is located. Each Party submits to the personal jurisdiction of such courts for the purpose of litigating any claims or disputes.
12.4 The following Sections of this Agreement shall survive the termination, expiration or cancellation of this Agreement: 5.4,
5.7, 5.8, 5.9, 5.10, 8.1, 8.4, 10.3, 10.6, 10.7, 10.8, 10.9, 10.10, 11.4, 12.5, 12.7 and 12.8.
PERFORMANCE CONTRACTING AGREEMENT
Agreement
Smart Infrastructure PCA-100 PUBLIC version 2019v2
12.5 SIEMENS’ performance of the Work and Services is expressly conditioned on the Parties assenting to all of the terms of this Agreement, notwithstanding any different or additional terms contained in any writing at any time submitted or to be submitted by a Party to the other Party relating to the Work or Services, even if signed by the Parties, unless the written statement expressly indicates that such terms supersede the terms of this Agreement
12.6 Any provision of this Agreement found to be invalid, unlawful or unenforceable by a court of law shall be ineffective to the extent of such invalidity, and deemed severed herefrom, without invalidating the remainder of this Agreement. All other provisions hereof shall remain in full force and effect.
12.7 The waiver by a party of any breach by the other party of any term, covenant or condition hereof shall not operate as a waiver of any subsequent breach hereof. No waiver shall operate or be effective unless made in writing and executed by the party to be bound thereby.
12.8 In the event that Applicable Law or the CLIENT requires that SIEMENS procure a performance bond and/or a payment bond, SIEMENS shall provide a performance and payment bond in the amount of $6,330,610. The performance and payment bond will solely apply to the Work performed during the Construction Period and to the required statutory lien filing period thereafter. The performance and payment bond will not apply to any of the obligations included in the Performance Assurance, Exhibit C. Furthermore, the CLIENT’s funding source may be named as “Co-Obligee” on the performance bond if so requested by the CLIENT.
Article 13
Maintenance Services Program
13.1 If applicable, the scope of Services provided by SIEMENS for the Maintenance Services Program is stated in Exhibit A.
13.2 The CLIENT represents that all equipment not installed by SIEMENS under this Agreement and subject to a MSP is in satisfactory working condition. SIEMENS will have inspected all such equipment within the first thirty (30) days of MSP commencement or no later than the first scheduled inspection. Testing and inspection will not be deemed to be complete until all such equipment has been so tested and inspected.
13.3 If the equipment is altered or moved by any person, including the CLIENT, other than SIEMENS or a person authorized by SIEMENS, the CLIENT shall immediately notify SIEMENS in writing, and SIEMENS reserves the right to perform a reacceptance test on, or if necessary, a re-commissioning of, the system at the CLIENT’s expense.
13.4 If SIEMENS reasonably determines as a result of such inspection and/or testing that any equipment requires repair or replacement, the CLIENT will be so notified and shall take corrective action within thirty (30) days, or such equipment shall be removed from coverage hereunder without further action by the Parties. SIEMENS is not liable or responsible for the continued testing, maintenance, repair, replacement or operating capabilities of any portion of the equipment until it has been inspected and/or tested and has been, if necessary, restored to an acceptable initial condition at the CLIENT’s sole expense. Any services provided by SIEMENS in the course of such restoration will be separately charged on a time and materials basis, and not included in fees paid hereunder. If individual items of equipment cannot, in SIEMENS’ sole determination, be properly repaired or replaced due to age, obsolescence, lack of availability of refrigerant gas, halon gas, necessary parts, materials, compatibility or otherwise, or as a result of excessive wear or deterioration, SIEMENS may, within ten (10) days of such inspection, give written notice that it is withdrawing such items from coverage under the MSP and adjust the MSP payments due hereunder accordingly.
13.5 If the removal of equipment from coverage would compromise or impair the integrity of the Work, Services or compliance with law of any system, then SIEMENS will provide a written statement thereof for execution by the CLIENT. The CLIENT’s failure to execute such statement within ten (10) days will void the MSP and release SIEMENS from any further obligations with respect to the MSP.
13.6 If the MSP scope of Services provides for equipment maintenance, repairs and/or replacements of equipment by SIEMENS, those Services are limited to restoring the proper working condition of such equipment. SIEMENS will not be obligated to provide replacement equipment that represents significant capital improvement compared to the original.
Exchanged components become the property of SIEMENS, except Hazardous Materials, which under all circumstances remain the property and responsibility of the CLIENT.
Exhibit A – Scope of Work and Services
City of Cudahy
Siemens Industry, Inc., Smart Infrastructure
Exhibit A - Scope of Work and Services v. 2019
Article 1: Scope of Work
1.1 Description: Except as otherwise expressly provided herein, SIEMENS shall provide each and every item of cost and expense necessary for:
Implementation of the Facility Improvement Measures (“FIMS”) described in Section
1.2, below (the “Work”). Work will be based on applicable California prevailing wage requirements as confirmed by the CLIENT. CLIENT to provide adequate site access and appropriate area on site for SIEMENS and its contractors’ staging and storage.
1.2 Specific Elements: The Work shall include the following:
1.2.1 Lighting Upgrade/Retrofit
Facilities included:
Building / Parks Address
City Hall / Library 5220 Santa Ana St.
Bedwell Hall 5218 Santa Ana St.
Cudahy Park 5220 Santa Ana St.
Clara Street Park / Community
Center, Sports complex
4835 Clara St.
Clara expansion park 4838 Clara St.
Public Works / Lugo Park 7810 Otis Ave.
1. SIEMENS to provide lighting upgrades as shown in Appendix 1. a. Work to be installed in accordance with applicable Title 24 requirements: Title 24 compliance paperwork, inspection and testing support, including permits required to be held in contractor’s name and fees associated with this Work.
b. Installation of six mockup fixtures provided during the Pre-construction inspection.
c. Retrofit kits will be primarily door frame kits, with a small number of Type C kits required for unique fixture types and spaces where CLIENT has informed SIEMENS there is asbestos located above the ceiling.
This Scope of Work expressly excludes any asbestos work, remediation or abatement, so if, in SIEMENS’ or its contractor’s sole judgment, any of this Type C kit Work is unable to be performed without disturbing the above ceiling asbestos, that Type C kit Work shall not be performed and this Scope of Work (and related price and guarantee) shall be adjusted accordingly.
d. Replace existing incandescent and compact fluorescent screw-in lamps with new LED screw-in lamps.
e. Retrofit existing pin-base compact fluorescent lamps with retrofit kits or new fixtures as shown in Appendix 1.
f. Replace HID fixtures in mechanical rooms and gymnasium with new LED fixtures.
Exhibit A – Scope of Work and Services
City of Cudahy
Siemens Industry, Inc., Smart Infrastructure
Exhibit A - Scope of Work and Services v. 2019
g. Replace compact fluorescent and incandescent exit signs with new signs. Existing LED signs to remain.
h. Remove and dispose of, or recycle, existing fluorescent lamps/ballasts.
Disposal of PCB laden ballasts shall be in compliance with appropriate governmental regulations.
i. Add occupancy sensors in areas where shown in Appendix 1. j. Remove existing interior occupancy sensors and install new occupancy sensors.
k. Remove existing switches and install new switches as shown in Appendix 1.
l. For exterior lighting, replace existing Metal Halide, High-Pressure Sodium, compact fluorescent and incandescent fixtures with new LED fixtures.
m. For exterior lighting, demo existing mechanical time clocks and replace with digital time clock. CLIENT has decided to exclude Title 24 controls requirements for exterior lighting.
n. Provide shelf stock to CLIENT of spare parts in the numbers set forth on Appendix 1.
o. Customer to provide centralized location for storage containers & dumpsters.
p. Lighting Work shall be performed during normal working hours and may include a second shift. Should overtime (beyond those two shifts) or weekend Work be required, Siemens will be entitled to a change order.
2. Areas with Low Light Levels
a. SIEMENS’ Work is based on the lighting retrofits as shown in Appendix
1. Some areas may currently have existing low light levels, which after the Appendix 1 retrofits may still not meet necessary lighting standards.
Regarding areas where lighting may not meet necessary lighting standards:
i. CLIENT will be responsible to indicate low light level areas ii. SIEMENS will walk with the CLIENT representative to take lighting readings in specific areas prior to construction iii. Following the walk-through, spaces which are determined to have low light levels will be flagged in the SIEMENS’ audit document
iv. For these and other such areas identified during construction, SIEMENS will communicate to the CLIENT, and provide
recommendations for addressing light level issues
v. SIEMENS will provide pricing for the recommended additional work to address light level issues on a time and material basis vi. Following construction, post lighting levels will also be documented for these areas in conjunction with the CLIENT representative
vii. CLIENT has elected to self-implement maintenance for all lighting and other Work (except the Solar PV FIM noted in 1.2.4 (to the extent maintained by SIEMENS and covered by
SIEMENS’ maintenance obligations set forth elsewhere herein and in Article 13 of the Agreement)), so whether or not noted
Exhibit A – Scope of Work and Services
City of Cudahy
Siemens Industry, Inc., Smart Infrastructure
Exhibit A - Scope of Work and Services v. 2019
with respect to the particular FIM, as the CLIENT has chosen to self-maintain, after the end of the warranty period set forth in Section 5.7 of the Agreement, the CLIENT shall be responsible for any and all costs, including labor, required to maintain all FIMs (except for the Solar PV to the extent noted above).
Therefore, SIEMENS shall not perform any on-going
maintenance services for any such Work.
3. Exclusions for Lighting Upgrade
a. Sports field lighting at Cudahy Park and Lugo Park.
b. Existing LED fixtures
c. SIEMENS shall not be responsible for repairs to existing damaged ceiling tiles or walls. Repairs or upgrades to existing drop ceilings or fixture supports to bring them up to local building codes are not included.
d. SIEMENS’ scope is limited to replacing the fixtures identified in Appendix 1 or working inside the fixtures identified therein. Correction of any pre-existing defects or non-conformities with the applicable Codes in the electrical wiring to the fixture is not included. e. Entire scope was priced as universal voltage (120/277V), 480V fixtures/drivers are not included in the scope.
f. Emergency circuits/drivers are not included. If additional LED emergency drivers are needed, SIEMENS will submit a change order for additional work.
g. Scope assumes 1 for 1 retrofit and/or replacement only, any change in layout or not reasonably foreseeable electrical issues are not included in the scope.
h. Design services i.e. CAD drawings/reflective ceilings plans are not included in the Scope of Work.
i. Replacement of existing cracked or discolored fixture lenses is not included.
j. Lighting control acceptance testing is not included. k. Repair, replacement or re-commissioning of existing damaged, defective energy management systems are not included.
l. The repair or replacement of fixture locking devices (for example, tamperproof screws or locking fastener type lens or door frame) is not included.
m. For these FIMs and all other FIMs under this Scope of Work, whether or not specified in the list of exclusions for the particular FIM, the general exclusions below in section 1.2.7, apply to all Work, so are also excluded.
n. In the event of a product failure after the end of the warranty period set forth in Section 5.7 of the Agreement for all FIMs in this Scope of Work (except the Solar PV noted in 1.2.4 (to the extent maintained by SIEMENS and covered by SIEMENS’ maintenance obligations)), and whether or not specified in the list of exclusions for the particular FIM, as the CLIENT has chosen to self-maintain, the CLIENT shall be responsible for any and all costs, including labor, required to replace
Exhibit A – Scope of Work and Services
City of Cudahy
Siemens Industry, Inc., Smart Infrastructure
Exhibit A - Scope of Work and Services v. 2019
the failed component(s) and process the replacement of the product(s) in full accordance with the Manufacturer’s Warranty Statement(s). o. In the event there is a discrepancy between Exhibit A and Appendix 1, Appendix 1 will take precedence.
1.2.2 Street Lighting Upgrades
1. SIEMENS to provide the following Street Lighting upgrades. a. SIEMENS shall furnish all materials, equipment and labor to provide a LED street light replacement project. This Scope of Work includes the replacement of two hundred and one (201) CLIENT owned non LED cobra head street lights.
b. Provide (4) mockup fixtures, one of each lumen package, including at least one location of adjacent fixtures to measure light levels. No mockup fixtures will be installed in intersections.
c. SIEMENS has included cost to replace up to (4) fuse holders and degraded wire from the base of the pole to the fixture. This does not include underground wiring.
d. SIEMENS has included encroachment permit for 2 weeks. e. Photometric plans will be provided for typical street fixture layout, i.e. different fixture lumen package(s) based on spacing, mounting height(s), layout intersections, etc.
f. The following table provides a summary of existing and proposed fixtures:
Streetlighting inventory with proposed fixtures
Existing
Fixture
Existing
Lamp
Wattage
Qty Proposed Fixture Proposed
Lamp
Wattage
HPS/70 70 1 LEOTEK : GCM1-60J-MV40K-2R-GY-095 + LLPC59 HPS/100 100 124 LEOTEK : GCM1-60J-MV40K-2R-GY-095 + LLPC 59 HPS/150 150 32 LEOTEK : GCM1-60J-MV40K-2R-GY-095 + LLPC59 HPS/200 200 6 LEOTEK : GCM1-60J-MV40K-2R-GY-095 + LLPC59 HPS/250 250 38 LEOTEK : GCM1-60J-MV40K-2R-GY-095 + LLPC59
2. Audit
a. The intent is to replace all City street lighting, but SIEMENS has priced only two hundred and one (201) replacements as noted above.
To determine whether that count is accurate, SIEMENS will perform a field audit of all City and SCE owned streetlights located within the City limits and document the current installed inventory, including GPS coordinates, lamp type, wattage, pole number/tag, quantity of fixtures, fixture type, pole type, use type, and color. b. SIEMENS will use the GIS database information for progress reporting as well as the final or “as-built” installed inventory document.
Upon completion of the project SIEMENS shall provide the CLIENT
Exhibit A – Scope of Work and Services
City of Cudahy
Siemens Industry, Inc., Smart Infrastructure
Exhibit A - Scope of Work and Services v. 2019
with electronic copy of all final database documents. Should discrepancies be found between the actual count of light fixtures (and pole labeling, noted below) as determined by the audit and the number priced above, SIEMENS will provide location and pole information for discrepancy resolution by the CLIENT and be entitled to a change order for the additional cost.
c. Based on the audit findings, the CLIENT will be responsible for additional scope cost, Siemens will adjust the energy savings guaranteed.
3. Material Handling and Logistics
a. CLIENT to provide a secure location for storage and staging for all equipment until permanently installed.
4. Pole and Fixture labeling
a. SIEMENS will provide pole labels for 201 poles (which number shall be subject to adjustment based on the findings of the audit) with the following format:
a. “C” for Cudahy (this will distinguish between SCE poles and Cudahy poles)
b. Followed with 3 digits for the pole numbers: 000, 001, 002, etc. c. Background of label with be blue. The letters and numbers will be reflective gray.
5. Traffic Control
a. Prior to commencing implementation, SIEMENS shall meet with project staff, Public Works, Police and other City departments having responsibility for traffic control. A Maintenance of Traffic (MOT) Plan will be developed by SIEMENS and submitted to the CLIENT for its prompt review and approval, for streets and/or areas identified as requiring traffic control.
6. Fixture Disposal
a. SIEMENS shall be responsible for the collection, storage, disposal and/or recycling of universal waste generated by this project in full accordance with California Code of Regulations, Title 22, division 4.5, chapter 23. Examples of universal waste generated by this project include fixtures, lamps, ballasts and other electronic components.
7. Provide spare product inventory
a. SIEMENS shall provide to the CLIENT an inventory stock of fixtures as detailed below:
Exhibit A – Scope of Work and Services
City of Cudahy
Siemens Industry, Inc., Smart Infrastructure
Exhibit A - Scope of Work and Services v. 2019
Replacement Inventory
Fixture Code Wattage Quantity
Technology LEOTEK - GCM1 60J MV 40K 3R GY 095 PCR7 + LLPC 59 4
1. Assumptions for Street Lighting upgrades
a. In the event of a product failure after the end of the warranty period set forth in Section 5.7 of the Agreement for all FIMs in this Scope of Work (except the Solar PV noted in 1.2.4 (to the extent maintained by SIEMENS and covered by SIEMENS’ maintenance obligations)), and whether or not specified in the list of exclusions for the particular FIM, as the CLIENT has chosen to self-maintain, the CLIENT shall be responsible for any and all costs, including labor, required to replace the failed component(s) and process the replacement of the product(s) in full accordance with the Manufacturer’s Warranty Statement(s)SIEMENS shall not be responsible for “knock-downs” or other damage incurred to the products installed. All required maintenance shall be the responsibility of the CLIENT.
b. Work will be completed during normal business hours.
2. Exclusions for Street Lighting upgrades
a. Permitting associated with Street Lighting is excluded. b. Exclude replacement of fuse holders (except for up to four (4) replacements which Siemens has included).
c. SIEMENS shall not be responsible for repairs to existing wiring and grounding.
d. Repair or replacement of poles is excluded
e. Replacement of missing covers is excluded
f. Coordination and notification to City residents is excluded. g. See general exclusions section 1.2.7 which are also excluded.
1.2.3 Mechanical Equipment Upgrades
1. Facilities included:
Building / Parks Address
City Hall / Library 5220 Santa Ana St.
Bedwell Hall 5218 Santa Ana St.
Community Center / Clara Street Park 4835 Clara St.
Public Works / Lugo Park 7810 Otis Ave.
2. SIEMENS to provide the following mechanical upgrades. a. Provide required mechanical drawings, structural drawings and anchorage details for permits required to be held in contractor’s name.
Exhibit A – Scope of Work and Services
City of Cudahy
Siemens Industry, Inc., Smart Infrastructure
Exhibit A - Scope of Work and Services v. 2019
b. Work shall be performed in accordance with latest California adopted Codes, local codes and applicable ordinances having jurisdictions over this site, in place as of the Effective Contract Date of the Agreement. If changes in applicable laws, codes, ordinances, standard or other applicable requirements occur after the Effective Contract Date and before the Work is completed, SIEMENS will be entitled to a change order therefor.
c. Demo, remove and dispose of the existing HVAC units listed below (including compressor oil and refrigerant per EPA guidelines).
Disconnect existing electrical, piping and ductwork connections. d. Remove and reinstall the existing fencing around equipment. e. Furnish and install the new HVAC units, of the same size as existing, meeting 2019 Title 24 requirements. Existing and proposed units’ information is listed below, pending final design and subject to change. f. Furnish, install and tie Climatix RTU controller and programmable thermostat to each new HVAC unit. Configure the new HVAC units with the Climatix mobile app. Once completed CLIENT will enter into a separate contract with Climatix for its cloud services. g. Provide and install one new smoke detector in the supply duct for each new HVAC unit that is 5-ton and above, that does not already have a smoke detector. Smoke detectors will shut down the unit if smoke is present. Smoke detectors, currently installed, will be removed and reinstalled. Smoke detectors will not be connected to a Fire Life Safety system; this is the responsibility of CLIENT.
h. Provide and install one new electrical disconnect with fuses for each new HVAC unit and reconnect existing electrical.
i. Reconnect new HVAC units to existing electrical wiring, piping and ductwork.
j. Replace existing domestic hot water heater located at the City Hall. k. Provide commissioning/start-up for the new HVAC units l. Provide pre and post air-flow measurements, at the supply and return for new HVAC units.
m. Provide as built drawings and O&M manuals in pdf
n. Work shall be performed during normal business hours; no overtime or weekend Work shall be provided.
Exhibit A – Scope of Work and Services
City of Cudahy
Siemens Industry, Inc., Smart Infrastructure
Exhibit A - Scope of Work and Services v. 2019
Existing Split Systems
*name plate data missing on the unit, estimated nominal tonnage based on available mechanical plans Existing Rooftop Packaged Units
*name plate data missing on the unit, estimated nominal tonnage based on available mechanical plans Proposed New HVAC Units
Location Equipment
type
Proposed
Manufacturer
Proposed Outdoor
Unit Model #
Proposed Indoor
Unit Model #
Proposed
Capacity
City Hall Split System Trane 4TWR5024H1 GAM5B0A24M21E 2 Ton City Hall Split System Trane 4TWR5036H1 GAM5B0B36M21E 3 Ton City Hall Split System Daikin RXYQ120XAYDA BCVD0401 10 Ton City Hall Split System Daikin RXYQ120XAYDA BCVD0401 10 Ton Bedwell Hall Split System Trane 4TWR5024H1 GAM5B0A24M21E 2 Ton Bedwell Hall Split System Trane 4TWR5048H1 GAM5B0C48M41E 4 Ton Bedwell Hall Split System Trane 4TWR5060H1 TAM9A0C60V51D 5 Ton Bedwell Hall Split System Trane 4TWR5060H1 TAM9A0C60V51D 5 Ton Bedwell Hall Split System Daikin RXYQ96XAYDA BCVD0301 7.5 Ton City Hall Package Unit Carrier 48VGUE240403-TP N/A 2 Ton Location Site Location Equip. Type Manufacturer Model # Nom Tons City Hall Roof RTU Concord 2SH13B36P-1A 3
City Hall Roof RTU Concord RHP13A24P-2A 2
City Hall Roof RTU Rheem Unknown 2*
Communicty Center Roof RTU Allied 2SG13B36090T-1A 3*
Communicty Center Roof RTU Unknown PGB090210-3 7.5*
Communicty Center Roof RTU Lennox TGA090S2BM1Y 7.5
Communicty Center Roof RTU Allied PGD460090H001E1 7.5*
Communicty Center Roof RTU Trane Unknown Unknown
Communicty Center Roof RTU Reznor Unknown Unknown
Public Works Roof RTU Carrier 48HJD009-531 8.5
Public Works Roof RTU Lennox TGA120S2BH1Y 10
Public Works Roof RTU Carrier 48HJD006-531 5
Public Works Roof RTU Lennox TGA120S2BH1Y 10
Public Works Roof RTU Carrier 48HJD009-531 8.5
Public Works Roof RTU Lennox TGA120S2BH 10
Public Works Roof RTU Unknown Unknown 7.5*
Exhibit A – Scope of Work and Services
City of Cudahy
Siemens Industry, Inc., Smart Infrastructure
Exhibit A - Scope of Work and Services v. 2019
City Hall Package Unit Carrier 48VGUE240403-TP N/A 2 Ton City Hall Package Unit Carrier 48VGUE360603-TP N/A 3 Ton Community
Center
Package Unit Carrier 48VGUE360605 N/A
3 Ton
Community
Center
Package Unit Carrier 48GCGM04A2M5 N/A
3 Ton
Community
Center
Package Unit Carrier 48VGUE600905 N/A
5 Ton
Community
Center
Package Unit Carrier 48HCDD08A2M5 N/A
7.5 Ton
Community
Center
Package Unit Carrier 48HCDD08A2M5 N/A
7.5 Ton
Community
Center
Package Unit Carrier 48HCDD08A2M5 N/A
7.5 Ton
Public Works Package Unit Carrier 48GCGM06A2M5 N/A 5 Ton Public Works Package Unit Carrier 48GCGM06A2M5 N/A 5 Ton Public Works Package Unit Carrier 48HCDD09A2M5 N/A 8.5 Ton Public Works Package Unit Carrier 48HCDD09A2M5 N/A 8.5 Ton Public Works Package Unit Carrier 48HCDD09A2M5 N/A 8.5 Ton Public Works Package Unit Carrier 48HCDD12A2M5 N/A 10 Ton Public Works Package Unit Carrier 48HCDD12A2M5 N/A 10 Ton
3. Assumptions for Mechanical Equipment Upgrade
a. All electrical feeds are sized correctly, therefore pulling new electrical wire from the panel to each disconnect is excluded.
b. For the hot water heater replacement, it is assumed the isolation valves will hold. All repair work is excluded.
c. The structure below the roof is adequate for any new equipment pads/roof curbs.
d. It is assumed that the gas isolation valves will hold. If they do not, the gas will have to be shut off at the main and a change order will be provided to replace the isolation valve. SIEMENS is not responsible for any other equipment that the gas line serves, only the HVAC system.
4. Exclusions for Mechanical Equipment Upgrade
a. Relocation of gas and electrical lines
b. Economizers are excluded for the 7.5 ton and 10 ton split system at City Hall and Bedwell Hall.
c. New fencing around equipment is excluded.
d. PVC exhaust for the high efficiency split system is not a requirement therefore it is excluded.
e. Exclude all exhaust fans.
f. Customer will remove all furniture (cabinets, shelves, etc.) for better access to existing units.
g. Removal or installation of, or tie in/connection with, fire life safety equipment, not specifically described in the scope above, is excluded.
Exhibit A – Scope of Work and Services
City of Cudahy
Siemens Industry, Inc., Smart Infrastructure
Exhibit A - Scope of Work and Services v. 2019
No programming or work outside of the unit is included. SIEMENS will provide information to CLIENT’s consultant for any FLS tie in/connection work related to SIEMENS’ Work.
h. Major structural work such as reinforcing of structural members below the roof line is excluded.
i. No testing and air balancing for any unit other than the new HVAC units is included.
j. No weekend or premium time hours are included.
k. No repair or replacement of existing ductwork is included. l. SIEMENS is not responsible for remedying any pre-existing comfort conditions due to under-sizing of existing equipment. SIEMENS’ scope assumes that the units are adequately sized for current loads to maintain comfort conditions, and no additional load calculations were performed.
m. SIEMENS is not responsible for remedying any existing duct leakage issues in the building.
n. Repair/replacement of any damaged structural membranes caused by water, or repair/replacement of any other latent or patent damage to existing structural members is not included.
o. Any work related to the insulation is not included.
p. The Work does not include responsibility for system design deficiencies, including but not limited to poor air distribution, water flow imbalances, system equipment and component obsolescence, electrical failures, unserviceable equipment, and operating the system(s).
q. See general exclusions section 1.2.7 which are also excluded.
1.2.4 Solar Photovoltaic (PV)
1. Facilities included:
Building / Parks Type Approximate
Size
City Hall Carport 57.5 kW
Community Center /
Clara Street Park
Roof mount 42 kW
Public Works /
Lugo Park
Roof mount 26.7 kW
2. SIEMENS to provide the following Solar PV installation. a. SIEMENS will install a grid connection behind the meter, solar photovoltaic array at the facilities listed above. The energy generated by the photovoltaic modules will be tied directly into the existing building electrical distribution systems. System layouts and equipment selected are provided in Appendix 2.
b. Design photovoltaic system in accordance with manufacturer’s specifications, federal, state and local building code.
Exhibit A – Scope of Work and Services
City of Cudahy
Siemens Industry, Inc., Smart Infrastructure
Exhibit A - Scope of Work and Services v. 2019
c. Provide electrical engineering, structural engineering, civil engineering, and layouts as required for permitting.
d. Siemens will complete the electrical design and provide electrical drawings. The PV system & installation will meet the requirements for interconnection with appropriate documentation; provided that no modifications, upgrades, or additions to existing electrical service or additional equipment is required. Customer side and utility side upgrades or additions are not anticipated and not included. e. Siemens will submit the interconnection application to SCE following the system design. Interconnection and related approvals with SCE shall be completed by SIEMENS.
f. For the Public Works main meter, Siemens will asset the City with switching the existing rate to TOU-GS-2E. The guaranteed savings for this FIM assumes SCE will, no later than completion of the FIM, approve the rate switch for the Public Works main meter, noted under Exhibit C, Article 6, Table 6.1.1B.
g. Provide (5) spare panels as overstock.
h. A Revenue Grade Data Acquisition System (DAS) to monitor the system performance is included.
i. Provide Testing and Commissioning upon completion.
j. Work to be done during normal work hours.
3. Roof mount system:
a. Provide preliminary site surveying to layout locations of racking rows supporting PV modules for approval.
b. Furnish and install racking system per approved layouts and design documents.
c. Racking to be installed at tilt angle and orientation per final design drawings.
d. Furnish and install rack mounted brackets for inverters as required. e. It is assumed that the subsurface conditions are acceptable for installation of the system.
4. Carport system:
a. Siemens will design the carport structure of suitable strength to meet applicable structural and building codes and generate preliminary layout drawings for approval.
b. Upon approval, Siemens will design and install carport. c. Remove (2) existing light poles, cap at grade. Poles are currently located in the parking space. SIEMENS to add lighting under the carport system per code.
d. Underground utilities will be identified prior to construction. e. It is assumed that the subsurface conditions are acceptable for installation of the system.
f. Remove (8) small trees under carport canopy, stump grinding to grade level.
Exhibit A – Scope of Work and Services
City of Cudahy
Siemens Industry, Inc., Smart Infrastructure
Exhibit A - Scope of Work and Services v. 2019
1. Assumptions for Solar PV- roof mount installation
a. It is assumed that the CLIENT’s existing wiring and electrical distribution systems currently meet code. Any repairs to the existing wiring and distribution system will be the responsibility of the CLIENT. b. It is assumed that CLIENT’s rooftop structures are able to support the weight and installation of the Solar PV system. While SIEMENS will verify this before construction, no structural upgrades are included. c. The parking space where the carport will be located is not a fire lane parking.
d. The height of the carport will be 8.5 feet on the low end. e. CLIENT will be required to trim the existing trees circled below for the term of the guarantee. Tree cannot exceed the height of the carport.
Tree trimming
2. Exclusions for Solar PV installation whether roof mount or carport installation a. Design or construction work and/or services related to correction and/or mitigation of any pre-existing structures’ stability or integrity, or any federal or state statutory violations at the CLIENT’s existing facilities is excluded.
b. Mitigating unforeseen conditions uncovered during soils testing such as ground contamination or hazardous material abatement is excluded.
Changes to Work due to subsurface conditions are excluded. c. Additional field changes or upgrades to the structure in order to support the PV modules based on unforeseen conditions, including unforeseen soil conditions is also excluded (e.g., unstable soil conditions, land fill, sinkholes, underground water, or rocks).
d. Fire sprinklers and other forms of fire protection, security cameras, other security devices inside the carport structure are excluded. e. See general exclusions section 1.2.7 which are also excluded.
1.2.5 Roof Upgrades
Exhibit A – Scope of Work and Services
City of Cudahy
Siemens Industry, Inc., Smart Infrastructure
Exhibit A - Scope of Work and Services v. 2019
1. Facilities included:
Building / Parks Address
City Hall / Library 5220 Santa Ana St.
Community Center /
Clara Street Park
4835 Clara St.
Public Works / Lugo
Park
7810 Otis Ave.
2. SIEMENS to provide the following Roof upgrades.
a. Demo roofing to deck as well as mechanical curbs and flashings. Demo existing built up roof system, overall roof areas into the plywood deck, base wall flashing, curb flashings, pipe flashings, clean up, remove nails, stapled out debris, remove trash and dispose of all nonhazardous trash and debris, prepare for the new roof system. CLIENT shall abate all Hazardous Materials involved in the roof upgrades before SIEMENS begins Work thereon.
b. Provide and install ¼” securock Gypsum Fiber base board fire rating mechanically fastened over the plywood deck under manufacturer specifications.
c. Provide and install ¼” securock board around curbs, platforms and base wall under manufacturer specifications.
d. Provide and install iso taper to build the crickets for positive draining at the lower points and curbs where they need it.
e. Provide and Install 60 Mil Carlisle PVC KEE color white fully adhered over ¼” securock Gypsum Fiber base board for high wind resistant system under manufacturer specifications.
f. Provide and install 60 mil PVC KEE base wall flashing fully adhered under metal flashings as required by manufacturer specifications. g. Provide and install 60 mil PVC KEE membrane flashing around the mechanical curbs, exhaust vents, and platforms per plan and under manufacturer specifications.
h. Provide and install PVC clad scuppers and drip metal edges where needed per manufacturer specifications.
i. Provide and install walk pad protection around the mechanical equipment services and roof access per manufacturer warranty requirements.
j. Provide and install PVC membrane pad under the conductive support blocks to project the roof per manufacturer specifications. k. Provide and install new cap metal prefinished 24 gauge with continuous cleat at the front side and fasteners with rubber washer attached on the back side.
l. New Perimeter flashing and sealed pipe penetrations. m. New walking mats from roof access to mechanical equipment as required.
n. For City Hall / Library only, remove and replace rain gutters and downspouts around the building with pre-finished color metal.
Exhibit A – Scope of Work and Services
City of Cudahy
Siemens Industry, Inc., Smart Infrastructure
Exhibit A - Scope of Work and Services v. 2019
o. Replace existing sky lighting for the Community Center/Clara Park and Public Works/Lugo park.
p. The roof upgrade includes up to 25% of plywood replacement. For percentage above 25%, additional cost proposals will be provided. q. Provide and install framing wood curbs for the later installation of the new HVAC units included in this scope.
r. For the City Hall, provide and install elastomeric white roof coating to seal all the rain gutters between the skylight curbs to prevent rust or leaks.
3. Assumptions for Roof Upgrade
a. The T-Mobile satellite located on top of Community Center Gymnasium will need to be shutdown during the roof installation. City will need to review contractual obligations with T-Mobile and plan accordingly. b. The exterior record storage overhang attached to the City Hall does not have structural damage under the roof material.
c. The City will remove abandoned satellite located on the Public Works/Lugo Park building.
4. Exclusions for Roof Upgrade
a. Skylights for City Hall and Bedwell Hall are excluded. b. Exclude vapor barrier as SIEMENS will not be installing rigid insulation under the fire rated board.
c. Exclude expansion joints, fire barriers, fire caulking or insulation. d. Installation and/or repair to damaged fireproofing.
e. Exclude removal of conduit and wiring on roof, for non HVAC conduit.
Should SIEMENS not be able to perform this work, City will be responsible for removal and replacement.
f. Re-setting and/or re-calibration of Satellite dishes and Wi-Fi systems. g. Exclude work and repair of Trellis roofing at the Public Works.
Structural engineering will be required.
h. See general exclusions section 1.2.7 which are also excluded.
1.2.6 Transformer replacement
1. Facilities included:
Building / Parks Address
City Hall / Library 5220 Santa Ana St.
Bedwell Hall 5218 Santa Ana St.
1. SIEMENS to provide the following Transformer replacement. a. SIEMENS shall furnish materials, equipment and labor to provide transformer replacement. This Scope of Work includes the replacement of 4 low voltage transformers listed below with higher efficiency Powersmiths transformers.
Building Address KVA Location
Exhibit A – Scope of Work and Services
City of Cudahy
Siemens Industry, Inc., Smart Infrastructure
Exhibit A - Scope of Work and Services v. 2019
City Hall 5220 Santa Ana St,
Cudahy, CA 90201
75 City Hall main electric room
Tag # 0060484
City Hall 5220 Santa Ana St,
Cudahy, CA 90201
25 City Hall snack building
City Hall 5220 Santa Ana St,
Cudahy, CA 90201
15 City Hall mech room
Tag # 0060486
Bedwell Hall 5218 Santa Ana St,
Cudahy, CA 90201
75 Bedwell Hall electric room
Tag # 0060483
b. Provide engineering and permits required to be held in contractor’s name.
c. Remove and dispose of existing transformers offsite (non-hazardous). d. Install, anchor, and terminate existing conduit, conductors and grounds in new transformers per approved drawings.
e. Perform phase rotation test before and after new transformer is installed.
f. Perform lockout / tagout and switching of line and load breakers only g. Perform voltage tests after installation
h. Perform torque tests
i. Verify all downstream loads are re-energized after installation. j. Perform ground test by way of clamp on meter.
k. All work to be performed on 3rd shift or Saturdays.
2. Exclusions for Transformer Upgrade
a. Painting of conduits.
b. Emergency or temporary power or generators for any buildings or equipment during power outages or cut overs.
c. Removal or cleaning of CLIENT storage equipment, such as tables, chairs, computers.
d. Any sound or vibration tests
e. Any pre and post transformer tests besides voltage, rotation and clamp on ground tests
f. CLIENT to review and confirm sound levels of new transformers is acceptable. Siemens will not be responsible for sound levels of new transformers.
g. See general exclusions section 1.2.7 which are also excluded.
3. Assumptions for Transformer Upgrade
a. Assume all transformers have sufficient existing grounds installed. b. CLIENT will provide support for all lock out - tag out, re-energization and rotation test confirmation post installation.
1.2.7 General Exclusions
1. Asbestos removal in all locations in excluded. Any Hazardous Materials at the project site shall be treated in accordance with Article 11 of the Agreement.
All areas that contain Hazardous Materials must be tagged by CLIENT. Except where expressly noted, only nonhazardous materials shall be disposed of by SIEMENS as part of its Work; all Hazardous Materials must be disposed of by CLIENT.
2. Seismic upgrades in all locations
Exhibit A – Scope of Work and Services
City of Cudahy
Siemens Industry, Inc., Smart Infrastructure
Exhibit A - Scope of Work and Services v. 2019
3. Upsizing of existing electrical service in all locations, including utility side upgrades.
4. Temporary power in all locations
5. Temporary ventilation, cooling and heating at all locations; Thus locations will be without ventilation, heating and cooling, and CLIENT will need to relocate staff for up to 5 weeks per building during construction. CLIENT to coordinate with SIEMENS on the timing of the relocation.
6. ADA upgrades in all locations
7. Painting and patching
8. Repair of any faulty or non-code compliant wiring
9. Underground, subsurface conditions or undisclosed easements or rights of way, including without limitation mineral or solar/view/air rights.
10. Any work not specifically called out in the above scope
11. Any work to comply with changes in applicable laws, codes, ordinances, standard or other applicable requirements occur after the Effective Contract Date and before the Work is completed
1.3 Technical Specifications, Drawings, and Exhibits: The Work shall be performed in accordance with the following specifications, drawings and other attachments hereto, which are specifically incorporated herein and made part hereof:
See Appendix 1 and 2
1.4 CLIENT’S Responsibilities include:
1. Provide a designated representative to interface with SIEMENS on all issues related to the project
2. a. Client shall use best efforts to assist Siemens and its contractors and subcontractors in locating underground gas, water, fiber optic, sewer or other underground service/utility
b. Client represents and warrants that: (i) it has reviewed the FIMs; (ii) it has the right to authorize Siemens to construct the FIMs as and where located; and (iii) all locations on which FIMs are located (including the connections between the FIM and the buildings they connect to) are free and clear of set backs, easements, rights of way or similar restrictions that could impact the Work c. Other than the underground subsurface items set forth in 1.4.2 (a) above, all other subsurface risks are excluded from the scope of Work
3. Utility records for savings calculations
4. Permits not required to be held in contractor's name, if any
5. Provide for timely review of project schedules, typically a 5 business day approval turn-around unless otherwise specified
6. Provide for timely review of project submittals, typically a 7-14 business day approval turn-around unless otherwise specified
7. Provide access to buildings, with 3 business day advance notice of Work schedules, including coordination with building occupants and stakeholders, provide escorts as required in secure areas;
8. Provide for timely review and approval of completed Work;
9. Provide assistance for electrical utility shutdowns of sections of the facilities that may be required. SIEMENS intends to minimize disturbances and will coordinate with site management personnel.
10. Scheduling shutdowns and downtimes if necessary
Exhibit A – Scope of Work and Services
City of Cudahy
Siemens Industry, Inc., Smart Infrastructure
Exhibit A - Scope of Work and Services v. 2019
11. CLIENT shall provide a secure and accessible storage location
12. Other CLIENT responsibilities set forth elsewhere herein and in the Agreement Article 2: Work Implementation Period
2.1 Commencement of Work:
SIEMENS shall provide a list of materials for each portion of the work (submittals) and upon approval of such submittals by the CLIENT (and the receipt by SIEMENS of a notice to proceed from the CLIENT therefor), shall order and provide approximate lead times for each. The project schedule will be updated based on these estimates. The project schedule shall reflect that Siemens shall commence the installation only after the materials required for each part of Work have been received (or after materials required for mutually agreed portions of the Work have been received, if applicable). Once the materials required for all Work have been received, SIEMENS shall begin to perform the installation Work diligently and shall complete the installation Work no later than twelve (12) months thereafter.
Exhibit A – Scope of Work and Services
City of Cudahy
Siemens Industry, Inc., Smart Infrastructure
Exhibit A - Scope of Work and Services v. 2019
Article 3: Scope of Services-Performance Assurance Services Program
3.1 Annual Measurement & Verification reporting will be performed and report will be delivered no later than 90 days after the end of the annual guarantee period. For specific information on the M&V plan see Exhibit C – Article 4.
3.2 SIEMENS will meet with representatives of CLIENT on an annual basis for the duration of the measurement and verification period to review energy savings and ensure commitments are being met.
Article 4: Scope of Services-Maintenance Services Program (Please check one box only)
CLIENT has elected to self-implement maintenance for all measures except for the Solar PV measure to the extent provided herein and in Article 13 of the Agreement and Siemens Asset Maintenance Services Program contract. Therefore, SIEMENS shall not perform any on-going maintenance services for those CLIENT maintained measures, although the Parties may negotiate a separate agreement for such services at a later date. CLIENT agrees that, after the end of the warranty period set forth in Section 5.7 of the Agreement, it will maintain the equipment per manufacturer specifications and that it will operate the Equipment in accordance with the Contracted Baseline described in Article 7 of Exhibit C. If CLIENT fails to properly maintain or operate the Equipment, SIEMENS shall have the right to modify the Performance Guarantee pursuant to Article 4 of the Agreement.
CLIENT is required to contract separately (this is not included in this Scope of Work) with Climatix for cloud services in order to retrieve trend data from the HVAC equipment. The following trends need to be maintained in order to measure and verify the energy savings:
Supply and return temperature set point and room temperature Outside air damper position
Supply fan speed
Equipment run time
The follow consists of the Services to be performed by SIEMENS for the Solar PV FIM:
4.1 Solar PV maintenance plan
Provided SIEMENS has received payment therefore, SIEMENS will perform ongoing preventative maintenance once per year for up to 15 years per the manufacturer’s recommendations to maintain the solar photovoltaic system’s performance. Maintenance of the roof to clear flora and debris affecting access to or operation of the system is the responsibility of CLIENT. See Article 13 of the Agreement and Siemens Asset Maintenance Services Program contract for more details.
Exhibit A – Scope of Work and Services
City of Cudahy
Siemens Industry, Inc., Smart Infrastructure
Exhibit A - Scope of Work and Services v. 2019
Exhibit A - Smpe of Work and Services
City of Cudahy
By signing below, this Exhibit is attached to and made a part of the Agreement between SIEMENS and the CLIENT.
CLIENT:
Signature:
Printed Name:
of Cu
Noyola, I tvt
Signature:
Printed Name:
Title:
Date:
Siemens lndustry, lnc.
Title: City Manager
Date: 08-30-2022
Siemens lndustry, lnc., Smart lnfrastructure
Exhibit A - Scope of Work and Services v. 2019
SIEMENS:
Signature:
Printed Name:
Title:
Date:
Exhibit B - Payment Schedules
City of Cudahy
Article I : Payment for Scope of Work
1.1 1.2
Price; As full consideration of the Work as described in Exhibit A, Article 1: Scope of Work, the CLIENT shall pay to SIEMENS $6,330,610.
Escrow: The CLIENT has agreed to deposit the Price into an Escrow Account al a financial institution satisfactory to both the CLIENT and SIEIVIENS. All expenses to establish the Escrow Account shall be the complete responsibility of the CLIENT and the CLIENT will receive all interest earnings from lhe Escrow Account. SIEIVENS will submit periodic invoices to the CLIENT based on the Payment Schedule in Table 8.1 below.
The CLIENT shall be responsible for submitting the necessary documents lo lhe Escrow Agent to allow for timeiy disbursements from the Escrow Account. The funding of the Escrow Account in an amount equal to or greater than the Price stated in Article 1.1 above shall be a condition precedent to SIEMENS obligation to perform or to continue the performance of the Work. lf the Escrow Account is not funded within thirty (30) days of the execution of this Agreemenl, this Agreement shall be null and void. This thirty (30) day funding period may be extended as mutually agreed in writing by the Parties. ln the event that the Agreement becomes null and void as described in this paragraph and CLIENT has previously authorized SIEMENS to proceed with the Work, the CLIENT shall be obligated to reimburse SIEMENS either: (i) for the Work performed to datei or (ii) for the Work specifically authorized by the CLIENT.
Timely Payments: The CLIENT agrees to pay SIEMENS per Table 8.1 below. CLIENT agrees to pay all invoices submitted by SIE[/ENS perArticle I ofthe Agreement.
1.3 Table 8.1 - FIM Work P ment Schedule
Article 1 of Exhibit B is attached to and made a part of the Agreement between SIEMENS and the
CLIENT,
CLIENT:
Signature
Printed Name
c of Cu
Alfonso ola, ICM
Title: City Manager
SIEMENS: Siemens lndustry, lnc.
Signature:
Printed Name:
Title:
Date:
Signature:
Printed Name:
Titte:
Date:
Project Phase Payments ($) Payments (%) Schedule
Development and Mobilization $ 949,591.50 15./. At Contract Sionature Progress Payment by FIM
percent complete
$ 5,064,488 800/a l\y'onth y
Proiect Closeout $ 316,530.50
PROJECT TOTAL $ 6,330,610 1000k
Siemens lndustry, lnc., Smart lnfrastructure
Exhibit B - Payment Schedules v. 2019
Date; 08-3G2022
Exhibit B – Payment Schedules
City of Cudahy
Siemens Industry, Inc., Smart Infrastructure
Exhibit B - Payment Schedules v. 2019
Article 2: Payment for Performance Assurance Services Program (PASP)
2.1 Price: As full consideration of the Services as described in Exhibit A, Article 3, the CLIENT shall pay to SIEMENS the amounts identified in Table B.2 plus taxes, if applicable, on the dates identified therein.
2.2 Performance Assurance Services Program Term: The term of the PASP shall commence on the Guarantee Date and shall extend for either: (a) the term of the Performance Guarantee Period where multi-year obligations are allowed; or (b) for twelve (12) month periods corresponding to the term of each Annual Period.
2.3 Automatic Renewal: Where the PASP term is limited to an Annual Period, the PASP shall automatically renew for successive Annual Periods beginning on the anniversary date of Guarantee Date. Either party may request to amend the PASP at the end of an Annual Period by giving the other party at least sixty (60) days prior written notice of such amendments and such amendment shall be mutually negotiated by the Parties and effective upon a written amendment signed by both Parties prior to commencement of the next Annual Period. Each automatic renewal shall be and remain subject to the terms and conditions of this Agreement. SIEMENS obligations under the Performance Guarantee are dependent upon and subject to the express condition that the CLIENT maintains the PASP during the entire Performance Guarantee Period.
2.4 Termination: See Section 4.7 of the Agreement.
Table B.2 – Performance Assurance Program Payment Schedule Date Annual Payments ($) Notes
End of Construction $ 13,201 Billed at project acceptance Year 1 $ 13,597 Billed at 1st anniversary of project acceptance Year 2 $ 14,005 Billed at 2nd anniversary of project acceptance Year 3 $ 14,425 Billed at 3rd anniversary of project acceptance Year 4 $ 14,858 Billed at 4th anniversary of project acceptance Year 5 $ 15,304 Billed at 5th anniversary of project acceptance Year 6 $ 15,763 Billed at 6th anniversary of project acceptance Year 7 $ 16,236 Billed at 7th anniversary of project acceptance Year 8 $ 16,723 Billed at 8th anniversary of project acceptance Year 9 $ 17,224 Billed at 9th anniversary of project acceptance Year 10 $ 17,741 Billed at 10th anniversary of project acceptance Year 11 $ 18,273 Billed at 11th anniversary of project acceptance Year 12 $ 18,821 Billed at 12th anniversary of project acceptance Year 13 $ 19,386 Billed at 13th anniversary of project acceptance Year 14 $ 19,968 Billed at 14th anniversary of project acceptance
Exhibit B - Payment Schedules
City of Cudahy
Article 2 of Exhibit B is atiached to and made a part of the Agreement between SIEMENS and the CLIENT.
CLIENT:
Signature;
Printed Name:
c of Cu
Alfonso
Title: City Manager
SIEMENS:
Signature:
Printed Name:
Title:
Datel
Signature:
Printed Name:
Title:
Date:
Siemens lndustry, lnc.
Date: 0&30-2022
Siemens lndustry, lnc., Smart lnfrastructure
Exhibit B - Payment Schedules v. 20'19
Exhibit B - Payment Schedules
City of Cudahy
Article 3: Payment for Maintenance Services Program (MSP)
3.1 Price: As full consideration of the Services as described in Exhibit A, Article 4, the CLIENT shall pay to SIEMENS the amounts identified in Table 8.3 plus taxes, if applicable. on the dates identified therein.
3.2 Maintenance Services Program Term: The inilial or first term of the N.4SP shall commence on lhe Guarantee Date and shall have duration of 12 months and shall extend thereafter for the term as identified in Table 8.3 and in accordance with Section 3.3 below.
3.3 Automatic Renewal: Where multiyear obligations are disallowed, the l\.4aintenance Services Program shall automatically renew for successive twelve (12) month periods beginning on the ending anniversary date of the initial or first term as set forth in Article 3.2 above, and each twelve (12) month period thereafter as identified in Table 8.3. Either party may request not to renew or to amend the l\.4aintenance Services Program at the end of the initial term or at the end of a renewal term by givirE the other party at least sixty (60) days prior written notice of such amendments or intent not lo rene$/. Each renewal shall be and remain subject to the terms and conditions of this Agreement.
Table B.3 - Maintenance Services P ram Pa nt Schedule
Article 3 of Exhibit B is attached to and made a part of the Agreement between SlEN,IENS and the
CLIENT,
CLIENT:
Signature
Printed Name
Title
Date
of Cudah
City Manager
SIEMENS:
Signature
Printed Name
Title
Date
Siemens lndustry, lnc.
oa-30-2022
Date Annual
Pavments ($)
Notes
End of Consttuclion $ 17,906 Billed at proiect acceptance Year 1 $ 18,501 Billed at lsr anniversary of proiect acceptance Yeat 2 $ 26,094 Billed at 2nd anniversary of proiect acceptance Year 3 $ 20,592 Billed at 3d anniversary of proiect acceptance Yeat 4 $ 21 ,725 Billed at 4m anniversary of proiect acceptance Year 5 $ 30,641 Billed at sth anniversary of proiect acceptance Year 6 $ 26.252 Billed at 6rh anniversary of proiecl acceptance Yeat 7 $ 25,510 Billed at 7h anniversary of projecl acceptance Year 8 $ s5,980 Billed at 8b anniversary of project acceptance Year 9 $ 28,992 Billed at 9b anniversary of proiect acceptance Year 10 $ 32,824 Billed at 1oth anniversary of project acceptance Year 11 $ 42,249 Billed at 11th anniversary of project acceptance Year 12 $ 33,34'1 Billed at 12th anniversary of proiect acceptance Year 13 $ 38,188 Billed at 13th anniversary of project acceptance Year 14 $ 49,6'1'1 Billed at 14th anniversary of project acceptance
Siemens lndustry, lnc., Smart lnfrastructure
Exhibit B - Payment Schedules v. 2019
Signature:
Pdnted Name:
Title:
Date;
Exhibit C – Performance Assurance
City of Cudahy
Siemens Industry, Inc., Smart Infrastructure
Exhibit C – Performance Assurance v. 2019
Articles and Tables
The following Articles and Tables are hereby included and made part of this Exhibit C:
Article 1 Total Guaranteed Savings
Article 2 Measurement and Verification Options
Article 3 Performance Guarantee Period Responsibilities of SIEMENS and the CLIENT
Article 4 Measurement and Verification Plan
Article 5 Baseline Data
Article 6 Utility Rate Structures and Escalation Rates
Article 7 Contracted Baseline Data
Appendix 1- Lighting Room by Room
Appendix 2- Solar Helioscope
This Exhibit C provides the methodology to be used to determine the Annual Realized Savings and the reconciliation of these calculated Savings with the Guaranteed Annual Savings for each Annual Period of the Performance Guarantee Period. The Scope of Services for the Performance Assurance Service Program is provided in Article 3 of Exhibit A.
Article 1: Total Guaranteed Savings
Table 1.1 – Total Guaranteed Savings (Units)
Performance
Period
Electric
Energy
Saved (kWh)
Electric
Power
Saved (kW)
Electric Energy
Production
from Solar
(kWh)
Natural Gas
Saved
(Therms)
Annual Period 1 269,998 179 183,937 477
1.1 Only Annual Period 1 is shown as the energy/utility unit Savings will remain constant for each Annual Period of the Performance Guarantee Period as the CLIENT will operate the Facility in accordance with the Contracted Baseline identified in Article 7.
Table 1.2 – Total Guaranteed Savings (Cost)
Performance
Period
Energy
Savings
Solar
Savings
Operational
Savings
Total
Savings
Annual Period 1 $ 59,752 $ 31,311 $ 391,757 $ 482,820
Annual Period 2 $ 62,142 $ 32,564 $ 403,510 $ 498,216
Annual Period 3 $ 64,628 $ 33,866 $ 415,615 $ 514,109
Annual Period 4 $ 67,213 $ 35,221 $ 428,084 $ 530,517
Annual Period 5 $ 69,902 $ 36,630 $ 440,926 $ 547,457
Annual Period 6 $ 72,698 $ 38,095 $ 454,154 $ 564,946
Annual Period 7 $ 75,606 $ 39,619 $ 467,778 $ 583,003
Annual Period 8 $ 78,630 $ 41,203 $ 481,812 $ 601,645
Annual Period 9 $ 81,775 $ 42,851 $ 496,266 $ 620,893
Annual Period 10 $ 85,046 $ 44,566 $ 511,154 $ 640,766
Annual Period 11 $ 88,448 $ 46,348 $ 526,489 $ 661,285
Annual Period 12 $ 91,986 $ 48,202 $ 542,283 $ 682,471
Exhibit C - Performance Assurance
City of Cudahy
Annual Period 13 $ 95.665 $ 50,130 $ 558,552 $ 704,347
Annual Period '14 $ 99,492 $ 52,135 $ 575,308 $ 726,936 Annual Period 15 $ 103,472 $ 54,221 $ 592,568 $ 750,260 TOTALS $ 1,196,454 $ 626,961 $ 7,286,256 $ 9,109,671
1.2 Table 1.2 shows the CLIENT'S guaranteed cost Savings for each Annual Period that are extrapolated from the guaranteed energy/utility unit Savings shown in Table 1 .1 by multiplying the energy/utility Savings by the Baseline energy/utility rates including the stipulated Escalation Rates found in Article 6.
1.3 SIEMENS cannot and does not predict fluctuations in utility rates or the cost of energy. Therefore, the CLIENT and SIEMENS agree that the energy/utility cost Savings for each Annual Period will be calculated by multiplying the verified units of energy/utility Savings by the Annual Period's stipulated energy/utility rate and Escalation Rates and not the Annual Period's actual utility rate.
1.4 The determination of energy/utility Savings will follow current best practice, as defined in the IPMVP, or the FEMP Guidelines where required, unless otherwise agreed to by the Parties.
1.5 The Performance Guarantee does not operate lo guarantee the Savings per-FlM Rather, the calculation of Savings is based on aggregate performance of all of the FlMs contained in the Project. The projected value of such aggregate performance is contained in Table 1.2 above representing the Total Guaranteed Savings as monetized.
This Exhibit C, comprising Enter TOTAL number of pages including appendicies pages, is attached to and made a part of the Agreement between SIEMENS and the CLIENT.
CLIENT:
Signature
Printed Name: Alfon Noyola, lC
Title: City Manager
Date: 0&30-2022
c of Cud v SIEMENS:
Signature
Printed Name
Titte
Date
Siemens lndustry, lnc.
Signature
Printed Name
Title
Date
Siemens lndustry, lnc., Smart lnfrastructure
Exhibit C - Performance Assurance v. 2019
Exhibit C – Performance Assurance
City of Cudahy
Siemens Industry, Inc., Smart Infrastructure
Exhibit C – Performance Assurance v. 2019
Article 2: Measurement and Verification Options
2.1 Measurement and Verification Options: There are five measurement and verification options to measure and verify energy/utility Savings: Option A - Retrofit Isolation: Key Parameter Measurement; Option B - Retrofit Isolation: All Parameter Measurement; Option C - Whole Facility; and, Option D – Calibrated Simulation.
Options A through and including D are part of the IPMVP. Option E-Stipulated is based on industry accepted engineering standards and is the Option used for purposes of calculating Operational Savings.
Option A - Retrofit Isolation: Key Parameter Measurement. Savings are determined by field measurement of the key performance parameter(s) which define the energy use of the FIM’s affected system(s) and/or the success of the Project. Measurement frequency ranges from short-term to continuous, depending on the expected variations in the measured parameter and the length of the reporting period. Parameters not selected for field measurement are estimated. Estimates can be based on historical data, manufacturer’s specifications, or engineering judgment. Documentation of the source or justification of the estimated parameter is required. The plausible savings error arising from estimation rather than measurement is evaluated. If applicable, the predetermined schedule for data collection, evaluation, and reporting is defined in Exhibit A, Article 3- Performance Assurance Services Program.
Option B – Retrofit Isolation: All Parameter Measurement. Savings are determined by field measurement of the energy use of the FIM-affected system. Measurement frequency ranges from short-term to continuous, depending on the expected variations in the savings and the length of the reporting period. If applicable, the predetermined schedule for data collection, evaluation, and reporting is defined in Exhibit A, Article 3-Performance Assurance Services Program.
Option C - Whole Facility: Savings are determined by measuring energy use at the whole Facility or sub-Facility level. Continuous measurements of the entire Facility’s energy use are taken throughout the reporting period. If applicable, the predetermined schedule for data collection, evaluation, and reporting is defined in Exhibit A, Article 3- Performance Assurance Services Program.
Option D - Calibrated Simulation: Savings are determined through simulation of the energy use of the whole Facility, or of a sub-Facility. Simulation routines are demonstrated to adequately model actual energy performance measured in the Facility. This Option usually requires considerable skill in calibrated simulation. If applicable, the predetermined schedule for data collection, evaluation, and reporting is defined in Exhibit A, Article 3-Performance Assurance Services Program.
Option E – Stipulated: This Option is the method of measurement and verification applicable to FIMS consisting either of Operational Savings or where the end use capacity or operational efficiency; demand, energy consumption or power level; or manufacturer’s measurements, industry standard efficiencies or operating hours are known in advance, and used in a calculation or analysis method that will stipulate the outcome. Both CLIENT and SIEMENS agree to the stipulated inputs and outcome(s) of the analysis methodology.
Based on the established analytical methodology the Savings stipulated will be achieved upon completion of the FIM and no further measurements or calculations will be performed
Exhibit C – Performance Assurance
City of Cudahy
Siemens Industry, Inc., Smart Infrastructure
Exhibit C – Performance Assurance v. 2019
during the Performance Guarantee Period. If applicable, the methodology and calculations to establish Savings value will be defined in Section 4.6 of this Exhibit C.
2.2 Table 2.1 below summarizes the first Annual Period’s Guaranteed Savings (See Article 1, Tables 1.1 and 1.2) utilizing the applicable Measurement and Verification Options as applied to the referenced FIMs valued pursuant to the agreed upon amounts identified in Article 6 hereof.
Table 2.1 – Savings for First Annual Period by Option
FIM Name
or Type
Energy/Utility
Savings $
Operation
al Savings
$ Total
Savings $
Measurement and Verification Options
A
Retrofit
Isolation: Key
Parameter
Measurement
B
Retrofit
Isolation: All
Parameter
Measurement
C
Whole
Facility
D
Calibrated
Simulation
E
Stipulated
Total
Energy/Utility
Savings
E
Stipulated
Lighting $ 30,717 $30,717 $ 3,917 $ 34,634
Street
Lighting $ 15,121 $15,121 $ 1,840 $ 16,961
HVAC $ 10,265 $10,265 $ 204,842 $ 215,107
Transformer $ 3,648 $ 3,648 $ 3,648
Solar PV $ 31,311 $31,311 $ 31,311
Roof $ 181,158 $ 181,158
TOTALS $ 56,104 $ 31,311 $ 3,648 $91,063 $ 391,757 $ 482,820
2.3 Table 2.2 identifies the source of Operational Savings defined and quantified by the Parties. The Parties affirm that such amounts are Stipulated Savings for purposes of calculating Annual Realized Savings and acknowledge that the Guaranteed Savings identified herein have been based on CLIENT’S affirmation.
OPERATIONAL SAVINGS SHALL NOT BE MEASURED OR MONITORED
DURING THE PERFORMANCE GUARANTEE PERIOD.
Table 2.2 - Source of Operational Savings
Account/'Vendor Description Annual Cost $
# of Annual
Periods
Savings Are
Applied
Annual
Period
Savings
Begin
City of Cudahy
Interior and Exterior Lighting
material replacements (Lamp,
Ballasts and recycling maintenance
cost reductions)
$3,917 15 Year 1
City of Cudahy Street Lighting material replacement
(Lamp, Ballast) and Labor $1,840 15 Year 1
City of Cudahy Capital Cost Avoidance* $386,000 15 Year 1 *The Capital Cost Avoidance Operational Savings derive from work associated with Exhibit A items 1.2.3 and 1.2.5, which by including the FIM’s in this contract avoid having the expend future capital funds to pay for the work that is needed now.
2.3 SIEMENS has explained to the CLIENT and the CLIENT has satisfied itself as to how Operational Savings are incorporated into the Annual Realized Savings.
2.5 The Escalation Factor applicable to the Operational Savings is 3%.
Exhibit C - Performance Assurance
City of Cudahy
BY SIGNING BELOW. THE PARTIES CONFIRM THAT THEY HAVE REVIEWED THE
INCLUDED MEASUREMENT AND VERIFICATION OPTIONS AND THEIR APPLICATION TO BE USED IN CALCULATING SAVINGS UNDER THE AGREEMENT.
CLIENT:
Signature:
Printed Name:
c of Cudah
Alfonso
Title: city Manager
SIEMENS: Siemens lndustry, lnc.
Signature
Printed Name
Title
Date
Signature:
Printed Name:
Titte:
Date:
Date: 08-30-2022
Siemens lndustry, lnc., Smart lnfrastructure
Exhibit C - Performance Assurance v. 2019
Exhibit C – Performance Assurance
City of Cudahy
Siemens Industry, Inc., Smart Infrastructure
Exhibit C – Performance Assurance v. 2019
Article 3: Performance Guarantee Period Responsibilities of the CLIENT In addition to the CLIENT’S responsibilities under Article 6 of the Agreement, this Article details the responsibilities of the CLIENT in connection with the management and administration of the Performance Guarantee.
3.1 The CLIENT will provide a representative at each facility to coordinate work and provide required data described below.
3.2 The CLIENT will provide SIEMENS with accurate Facility operating information as defined below and in the Contracted Baseline article of this Exhibit C during each Annual Period, within thirty (30) days of any Material Change that may increase or decrease energy usage.
3.3 If applicable, the CLIENT will provide SIEMENS with copies of utility bills within thirty (30) days of receipt by the CLIENT or provide access to utility vendor information to allow SIEMENS to include a utility bill analysis in the Annual Performance Assurance Report. The utility bill analysis does not take the place of the Measurement and Verification Plan identified in Article 4 of this Exhibit C and is not used to measure the Project’s performance.
3.4 If required for the Work, CLIENT will provide telephone/data remote access, through SIEMENS Insight® software package or otherwise, as SIEMENS reasonably requests. All charges related to telephone/data line installation, activation and communication services are the responsibility of the CLIENT.
3.5 If required for the Work, CLIENT will provide and coordinate utility meter upgrade for interface with SIEMENS metering and data collection. All charges related for these upgrades are the responsibility of the CLIENT. (-or- shall be reimbursed to CLIENT by SIEMENS).
Exhibit C – Performance Assurance
City of Cudahy
Siemens Industry, Inc., Smart Infrastructure
Exhibit C – Performance Assurance v. 2019
Article 4: Measurement and Verification Plan
The following information is applicable to this Agreement:
Article 4.1 General Overview
Article 4.2 Option A - Retrofit Isolation: Key Parameter Measurement Article 4.3 Option B - Retrofit Isolation: All Parameter Measurement Article 4.4 Option C - Whole Facility
Article 4.5 Option D - Calibrated Simulation
Article 4.6 Option E – Stipulated-Energy/Utility Savings (option)
4.1 General Overview –
The purpose of the Measurement and Verification (M&V) Plan is to identify the methods, measurements, procedures and tools that will be used to verify the Savings for each FIM which has energy/utility Savings. Savings are determined by comparing prior usage, consumption or efficiencies (defined as the “Baseline”) against the post-FIM implementation usage, consumption or efficiencies. The Baseline usage, consumption or efficiencies are described in this Exhibit C, Article 5. The post-FIM implementation usage, consumption or efficiencies is defined as the Contracted Baseline and are described in this Exhibit C, Article 7.
4.2 Option A - Retrofit Isolation: Key Parameter Measurement
4.2.1 Lighting Upgrade
Location(s): City Hall/ Library , Bedwell Hall, Cudahy Park, Clara Street Park / Community Center/ Sports Complex, Clare expansion park and Public Works/ Lugo Park
Overview:
SIEMENS will retrofit the existing fixtures, lamps, and/or ballasts with more energyefficient fixtures, lamps, and/or ballasts. SIEMENS will also install occupancy sensor controls in selected locations as per Appendix 1. Verification of electric energy Savings (kWh) achieved by the lighting retrofit shall be based upon a onetime measurement of the lighting power capacity under existing conditions, a onetime measurement of the lighting power capacity upon completion of the lighting retrofit project and agreed-upon annual operating hours. Spot wattage measurements of a random sample of baseline and post-installation fixture types or fixture circuits will be used to establish demand. Sample size for wattage measurements will be determined based on FEMP guidelines for sample size determination, with overall population sample size not to exceed 10% of the retrofit population.
Pre-Retrofit Measurement\Calculations:
kWhpre = (kWpre * Quantitypre * AOHrspre)fixture type ”n”, summed across all fixture types Where:
kWhpre = Pre-retrofit annual electric consumption (kWh/yr)
Exhibit C – Performance Assurance
City of Cudahy
Siemens Industry, Inc., Smart Infrastructure
Exhibit C – Performance Assurance v. 2019
kWpre = Instantaneous kW based on random sample of existing lighting-fixture types
Quantitypre = Count of each fixture-type based on as-built survey AOHrspre = Pre-Retrofit Annual Operating Hours, stipulated per Appendix 1
Post-Retrofit Measurement\Calculations:
kWhpost = (kWpost * Quantitypost * AOHrspost)fixture type ”n”, summed across all fixture types
Where:
kWhpost = Post-retrofit annual electric consumption (kWh/yr) kWpost = Instantaneous kW based on random sample of the installed/retrofitted lighting-fixture types
Quantitypost = Count of each fixture-type based on as-built survey AOHrspost = Post-Retrofit Annual Operating Hours, stipulated per Appendix 1
Savings Calculations:
Electric Savings (kWh/yr):
kWhS = kWhpre - kWhpost
Where:
kWhS = annual post-retrofit kilowatt-hour savings from lighting retrofit Demand Savings (kW/yr):
kWS = (kWpre – kWpost) X Months
Where:
kWS = Annual post-retrofit kilowatt savings
Months = Months per year of electric demand savings
Cost Savings ($/yr):
$S = ((kWhS * $/kWh, x) + (kWS * $/kW, x)
Where:
$S = Annual cost savings
$/kWh = Electricity unit cost per kWh as defined in Article 6 of this Exhibit C
$/kW = Demand units cost per kW as defined in Article 6 of this Exhibit C
Exhibit C – Performance Assurance
City of Cudahy
Siemens Industry, Inc., Smart Infrastructure
Exhibit C – Performance Assurance v. 2019
4.2.2 Street Lighting Upgrades
Location(s): City owned street lighting
Overview:
SIEMENS will retrofit the existing street lighting fixtures with more energy-efficient street lighting fixtures. Verification of electric energy Savings (kWh) will be achieved by a one-time confirmation of manufacturer’s specification of electric demand (kW) of each installed post-retrofit fixture type and a one-time confirmation that the correct utility bill tariffs have been applied. The applicable post Southern California Edison tariff is Schedule LS-2.
Pre-Retrofit Measurement\Calculations:
Pre-Retrofit Billed kWh = annual utility billed kWh of the existing street lighting determined during the IGA Phase per Table 4.2.#.1
Table 4.2.2.1 – Pre-Retrofit Street Lighting Annual Billed kWh Lighting District
Pre-Retrofit
Billed kWh
City of Cudahy 141,327
Post-Retrofit Measurement\Calculations:
Post-Retrofit Billed kWh = (kWhmonth * QtyPost * 12)fixture type ”n” Where:
Wpost = The wattage of the installed/retrofitted lighting-fixture types per Table
4.2.2.2. kWhmonth = Monthly utility billed kWh of the LED street lighting after LED retrofit per Schedule LS-2
QtyPost = Quantity of post-retrofit fixtures by type
Table 4.2.2.2 – Post-Retrofit Operating Parameters
Fixture Code Fixture
Type
Lamp
Wattage
(Wpost)
Lamp
Wattage
Range (W)
kWh per
Lamp per
Month
(kWhmonth)
Quantity
of
Fixtures
(QtyPost)
LEOTEK – GCM1-
60J-MV-40K-2R-GY095 + LLPC LED 59 55.01 – 60 19.8 1
LEOTEK – GCM1-
60J-MV-40K-2R-GY095 + LLPC LED 59 55.01 – 60 19.8 124
LEOTEK – GCM1-
60J-MV-40K-2R-GY095 + LLPC LED 59 55.01 – 60 19.8 32
Exhibit C – Performance Assurance
City of Cudahy
Siemens Industry, Inc., Smart Infrastructure
Exhibit C – Performance Assurance v. 2019
LEOTEK – GCM1-
60J-MV-40K-2R-GY095 + LLPC LED 59 55.01 – 60 19.8 6
LEOTEK – GCM1-
60J-MV-40K-2R-GY095 + LLPC LED 59 55.01 – 60 19.8 38
Total 201
Savings Calculations:
Energy Savings (kWh/yr):
kWhS = Pre-Retrofit Billed kWh – Post-Retrofit Billed kWh Where:
kWhS = Annual post-retrofit utility billed kWh savings
Cost Savings ($/yr):
$S = (Pre-Retrofit Billed kWh * $/kWhpre) - (Post-Retrofit Billed kWh * $/kWhpost) Where:
$S = Total annual cost savings
$/kWhpre = Pre-retrofit unit cost of electricity per kWh as defined in Article 6 of this Exhibit C
$/kWhpost = Post-retrofit unit cost of electricity per kWh as defined in Article 6 of this Exhibit C
4.2.3 HVAC Upgrades
Location(s): City Hall/ Library, Bedwell Hall, Community Center/ Clare Street Park, Public Works/ Lugo Park
Overview:
Energy and cost savings will be achieved by replacing the existing HVAC systems with higher efficiency and/or lower capacity systems. Electrical energy (kWh) savings will be verified by comparing the efficiency (SEER/EER) of the pre-retrofit equipment against the efficiency (SEER/EER) of the post-retrofit equipment, based on manufacturer specifications for the installed equipment. Thermal energy (Therms) savings will be verified by comparing the heating capacity (BTUs) of the pre-retrofit equipment against the heating capacity (BTUs) of the post-retrofit equipment.
Pre-Retrofit Variables:
Table 4.2.3.1 – Pre-retrofit Equipment Conditions
Exhibit C – Performance Assurance
City of Cudahy
Siemens Industry, Inc., Smart Infrastructure
Exhibit C – Performance Assurance v. 2019
ID Building
Name
Cooling
Tons
/Unit
System
Efficiency
Rating
System
Efficienc
y Value
Supply
Fan
Control
Fan
HP
Furnace
Type
Heating
Output
BTU or
Heating
Output kW
for Electric
Gas
Furnace
–
Thermal
Efficiency
%
PreRetrofit
Electric
Demand
(kWpre)
Pre-Retrofit
Electric
Consumption
(kWhpre)
Pre-Retrofit
Natural Gas
Consumption
(Thermspre)
Equipment-1 City Hall/
Library 2.0 SEER 13.1 CV 0.13 None N/A N/A 47.85 2,511 0 Equipment-2 City Hall/
Library 3.0 SEER 13.0 CV 0.25 None N/A N/A 71.85 3,813 0 Equipment-3 City Hall/
Library 10.0 EER 10.1 CV 3.00 Electric 10 N/A 245.79 18,683 0 Equipment-4 City Hall/
Library 10.0 EER 10.1 CV 3.00 Electric 11 N/A 147.39 13,363 0 Equipment-5 Bedwell Hall
2.0 SEER 13.0 CV 0.13 None N/A N/A 20.00 1,761 0
Equipment-6 Bedwell Hall
4.0 SEER 13.0 CV 0.33 Electric 4 N/A 50.17 4,456 0
Equipment-7 Bedwell Hall
5.0 EER 11.0 CV 1.50
Natural
Gas 57,100 79% 50.17 4,620 58
Equipment-8 Bedwell Hall
5.0 EER 11.0 CV 1.50
Natural
Gas 57,100 79% 50.17 4,620 58
Equipment-9 Bedwell Hall
7.5 EER 10.1 CV 2.00
Natural
Gas 72,000 80% 85.21 8,193 101
Equipment-10 City Hall/
Library 2.0 SEER 13.0 CV 0.50 Electric 2 N/A 25.32 2,335 0 Equipment-11 City Hall/
Library 2.0 SEER 13.0 CV 0.50 Electric 2 N/A 25.32 2,335 0 Equipment-12 City Hall/
Library 3.0 SEER 13.0 CV 0.25 None N/A N/A 29.95 2,632 0 Equipment-13 Community
Center 3.0 SEER 13.0 SAV 0.50
Natural
Gas 72,000 80% 63.60 3,989 38
Equipment-14 Community
Center 3.0 SEER 13.0 CV 0.25
Natural
Gas 72,000 80% 124.25 4,675 48
Exhibit C – Performance Assurance
City of Cudahy
Siemens Industry, Inc., Smart Infrastructure
Exhibit C – Performance Assurance v. 2019
ID Building
Name
Cooling
Tons
/Unit
System
Efficiency
Rating
System
Efficienc
y Value
Supply
Fan
Control
Fan
HP
Furnace
Type
Heating
Output
BTU or
Heating
Output kW
for Electric
Gas
Furnace
–
Thermal
Efficiency
%
PreRetrofit
Electric
Demand
(kWpre)
Pre-Retrofit
Electric
Consumption
(kWhpre)
Pre-Retrofit
Natural Gas
Consumption
(Thermspre)
Equipment-15 Community
Center 5.0 EER 10.1 CV 1.50
Natural
Gas 57,100 80% 138.02 7,132 53
Equipment-16 Community
Center 7.5 EER 8.9 CV 1.50
Natural
Gas 162,200 78% 178.64 11,704 75
Equipment-17 Community
Center 7.5 EER 10.1 CV 2.00
Natural
Gas 130,000 80% 178.39 10,955 72
Equipment-18 Public
Works 5.0 EER 11.0 CV 1.50
Natural
Gas 57,100 79% 49.75 2,520 3
Equipment-19 Public
Works 5.0 EER 11.0 CV 1.50
Natural
Gas 57,100 79% 49.75 2,520 3
Equipment-20 Public
Works 8.5 EER 10.8 CV 3.63
Natural
Gas 102,500 78% 87.80 4,631 5
Equipment-21 Public
Works 8.5 EER 10.8 CV 3.63
Natural
Gas 102,500 78% 87.80 4,631 5
Equipment-22 Public
Works 10.0 EER 10.1 CV 3.00
Natural
Gas 192,000 80% 111.19 5,869 6
Equipment-23 Public
Works 10.0 EER 10.1 CV 3.00
Natural
Gas 192,000 80% 111.19 5,869 6
Equipment-24 Public
Works 10.0 EER 10.1 CV 3.00
Natural
Gas 192,000 80% 111.19 5,869 6
Equipment-25 Community
Center 7.5 EER 9 CV 2.00
Natural
Gas 97,000 81% 94.33 12,025 55
Post-Retrofit Variables:
Table 4.2.3.2 – Post-retrofit Equipment Conditions
Exhibit C – Performance Assurance
City of Cudahy
Siemens Industry, Inc., Smart Infrastructure
Exhibit C – Performance Assurance v. 2019
ID Building
Name
Cooling
Tons
/Unit
System
Efficiency
Rating
System
Efficiency
Value
Supply
Fan
Control
Fan
HP
Furnace
Type
Heating
Output
BTU or
Heating
Output
kW for
Electric
Gas
Furnace
–
Thermal
Efficiency
%
PostRetrofit
Electric
Demand
(kWpost)
Post-Retrofit
Electric
Consumption
(kWhpost)
Post-Retrofit
Natural Gas
Consumption
(Thermspost)
Equipment-1 City Hall/
Library 2.0 SEER 15.0 VAV 0.3 Electric 1.95 N/A 47.85 2,711 0 Equipment-2 City Hall/
Library 3.0 SEER 15.0 VAV 0.5 Electric 2.93 N/A 71.85 4,071 0 Equipment-3 City Hall/
Library 10.0 IEER 22.0 VAV 5.0 Electric 9.92 N/A 245.79 12,898 0 Equipment-4 City Hall/
Library 10.0 IEER 22.0 VAV 5.0 Electric 9.92 N/A 118.85 13,363 0 Equipment-5 Bedwell
Hall 2.0 SEER 15.0 VAV 0.3 Electric 1.95 N/A 24.42 1,761 0 Equipment-6 Bedwell
Hall 4.0 SEER 15.0 VAV 0.8 Electric 3.91 N/A 49.32 4,456 0 Equipment-7 Bedwell
Hall 5.0 SEER 15.0 VAV 1.0 Electric 4.75 N/A 60.98 4,620 0 Equipment-8 Bedwell
Hall 5.0 SEER 15.0 VAV 1.0 Electric 4.75 N/A 60.98 4,620 0 Equipment-9 Bedwell
Hall 7.5 IEER 22.5 VAV 3.0 Electric 6.62 N/A 79.62 8,193 0 Equipment-10 City Hall/
Library 2.0 SEER 15.0 VAV 0.5
Natural
Gas 37,000 80% 18.65 2,335 28
Equipment-11 City Hall/
Library 2.0 SEER 15.0 VAV 0.5
Natural
Gas 37,000 81% 18.65 2,335 28
Equipment-12 City Hall/
Library 3.0 SEER 16.0 VAV 0.8
Natural
Gas 49,000 80% 26.09 2,632 39
Equipment-13 Community
Center
3.0 SEER 16.0 VAV 0.75
Natural
Gas
49,000
80% 53.35 3,106 30
Equipment-14 Community
Center 3.0 SEER 16.1 VAV 0.36
Natural
Gas 49,000 80% 86.84 3,481 44
Exhibit C – Performance Assurance
City of Cudahy
Siemens Industry, Inc., Smart Infrastructure
Exhibit C – Performance Assurance v. 2019
ID Building
Name
Cooling
Tons
/Unit
System
Efficiency
Rating
System
Efficiency
Value
Supply
Fan
Control
Fan
HP
Furnace
Type
Heating
Output
BTU or
Heating
Output
kW for
Electric
Gas
Furnace
–
Thermal
Efficiency
%
PostRetrofit
Electric
Demand
(kWpost)
Post-Retrofit
Electric
Consumption
(kWhpost)
Post-Retrofit
Natural Gas
Consumption
(Thermspost)
Equipment-15 Community
Center 5.0 SEER 16.0 VAV 1.00
Natural
Gas 73,000 80% 101.69 5,016 60
Equipment-16 Community
Center 7.5 IEER 13.8 VAV 1.24
Natural
Gas 73,000 80% 118.31 6,606 75
Equipment-17 Community
Center 7.5 IEER 13.8 VAV 1.24
Natural
Gas 73,000 80% 118.49 6,623 75
Equipment-18 Public
Works 5.0 SEER 16.1 VAV 0.88
Natural
Gas 49,000 80% 42.79 2,520 3
Equipment-19 Public
Works 5.0 SEER 16.1 VAV 0.88
Natural
Gas 49,000 80% 42.79 2,520 3
Equipment-20 Public
Works 8.5 IEER 13.8 VAV 1.75
Natural
Gas 73,000 80% 67.96 4,631 5
Equipment-21 Public
Works 8.5 IEER 13.8 VAV 1.75
Natural
Gas 73,000 80% 67.96 4,631 5
Equipment-22 Public
Works 8.5 IEER 13.8 VAV 1.75
Natural
Gas 73,000 80% 67.96 5,869 5
Equipment-23 Public
Works 10.0 IEER 12.7 VAV 2.30
Natural
Gas 89,000 80% 87.11 5,869 6
Equipment-24 Public
Works 10.0 IEER 12.7 VAV 2.30
Natural
Gas 89,000 80% 87.11 5,869 6
Equipment-25 Community
Center 7.5 IEER 13.8 VAV 1.33
Natural
Gas 73,000 80% 59.51 12,025 58
Exhibit C – Performance Assurance
City of Cudahy
Siemens Industry, Inc., Smart Infrastructure
Exhibit C – Performance Assurance v. 2019
Savings Calculations:
Energy (kWh) Savings:
kWhs = kWhpre - kWhpost
Where:
kWhS = Annual Electric savings
Energy (kW) Savings:
kWhs = kWpre - kWpost
Where:
kWhS = Annual Demand savings
Energy (Therms) Savings:
ThermS = Thermpre - Thermpost
Where:
ThermS = Annual Natural Gas savings
Formulas for Cost Savings:
$S = (kWhS x $/kWh) +(kWS x $/kW) + ( ThermS x $/Therm) Where:
$S = Annual cost savings
$/kWh = Electricity unit cost per kWh as defined in Article 6 of this Exhibit C
$/kW = Demand units cost per kW as defined in Article 6 of this Exhibit C
$/Therm = Natural gas units cost per therm as defined in Article 6 of this Exhibit C
4.2.4 Economizer Controls
Location(s): City Hall/ Library, Bedwell Hall, Community Center/ Clare Street Park, Public Works/ Lugo Park
Overview:
Electric energy savings will result from using outdoor air for cooling instead of mechanical cooling when the temperature of the outdoor air is below the outdoor air set point. Verification of energy savings will be based on verification of manufacturer’s specification which includes economizer controls.
If the Contracted Baseline operation for this equipment, as established in Article 7 of this Exhibit C, is modified by the CLIENT and results in a loss of energy savings, the Guaranteed Savings for this FIM will be deemed achieved as if the Contracted Baseline was followed.
Pre-Retrofit Variables:
Table 4.2.4.1 – Pre-retrofit Equipment Conditions
Exhibit C – Performance Assurance
City of Cudahy
Siemens Industry, Inc., Smart Infrastructure
Exhibit C – Performance Assurance v. 2019
ID Building
Name
Cooling
Tons
/Unit
System
Efficiency
Rating
System
Efficiency
Value
Supply
Fan
Control
Fan
HP
Economizer
(None/
Temperature)
Pre-Retrofit
Electric
Consumption
(kWhpre)
Equipment-1 City Hall/
Library 2.0 SEER 13.1 CV 0.13 none 4,056
Equipment-2 City Hall/
Library 3.0 SEER 13.0 CV 0.25 none 5,258
Equipment-3 City Hall/
Library 10.0 EER 10.1 CV 3.00 none 13,377
Equipment-4 City Hall/
Library 10.0 EER 10.1 CV 3.00 none 13,363
Equipment-5 Bedwell
Hall 2.0 SEER 13.0 CV 0.13 none 1,761
Equipment-6 Bedwell
Hall 4.0 SEER 13.0 CV 0.33 none 4,456
Equipment-7 Bedwell
Hall 5.0 EER 11.0 CV 1.50 none 4,620
Equipment-8 Bedwell
Hall 5.0 EER 11.0 CV 1.50 none 4,620
Equipment-9 Bedwell
Hall 7.5 EER 10.1 CV 2.00 none 8,193
Equipment-10 City Hall/
Library 2.0 SEER 13.0 CV 0.50 none 2,335
Equipment-11 City Hall/
Library 2.0 SEER 13.0 CV 0.50 none 2,335
Equipment-12 City Hall/
Library 3.0 SEER 13.0 CV 0.25 none 2,632
Equipment-13 Community
Center 3.0 SEER 13.0 SAV 0.50 none 3,106
Equipment-14 Community
Center 3.0 SEER 13.0 CV 0.25 none 3,481
Equipment-15 Community
Center 5.0 EER 10.1 CV 1.50 None 5,016
Equipment-16 Community
Center 7.5 EER 8.9 CV 1.50 None 6,606
Equipment-17 Community
Center 7.5 EER 10.1 CV 2.00 None 6,623
Equipment-18 Public
Works 5.0 EER 11.0 CV 1.50 none 2,520
Equipment-19 Public
Works 5.0 EER 11.0 CV 1.50 none 2,520
Equipment-20 Public
Works 8.5 EER 10.8 CV 3.63 none 4,631
Equipment-21 Public
Works 8.5 EER 10.8 CV 3.63 none 4,631
Equipment-22 Public
Works 10.0 EER 10.1 CV 3.00 None 5,869
Equipment-23 Public
Works 10.0 EER 10.1 CV 3.00 None 5,869
Equipment-24 Public
Works 10.0 EER 10.1 CV 3.00 None 5,869
Exhibit C – Performance Assurance
City of Cudahy
Siemens Industry, Inc., Smart Infrastructure
Exhibit C – Performance Assurance v. 2019
ID Building
Name
Cooling
Tons
/Unit
System
Efficiency
Rating
System
Efficiency
Value
Supply
Fan
Control
Fan
HP
Economizer
(None/
Temperature)
Pre-Retrofit
Electric
Consumption
(kWhpre)
Equipment-25 Community
Center 7.5 EER 10.1 CV 2.00 None 12,025
Post-Retrofit Variables:
Table 4.2.4.2 – Post-retrofit Equipment Conditions
ID Building
Name
Cooling
Tons
/Unit
System
Efficiency
Rating
System
Efficiency
Value
Supply
Fan
Control
Fan
HP
Economizer
(None/
Temperature)
Post-Retrofit
Electric
Consumption
(kWhpost)
Equipment-1 City Hall/
Library 2.0 SEER 15.0 VAV 2.0 None 4,056
Equipment-2 City Hall/
Library 3.0 SEER 15.0 VAV 3.0 None 5,258
Equipment-3 City Hall/
Library 10.0 IEER 22.0 VAV 10.0 None 13,377
Equipment-4 City Hall/
Library 10.0 IEER 22.0 VAV 10.0 Temperature 8,278
Equipment-5 Bedwell
Hall 2.0 SEER 15.0 VAV 2.0 None 1,939
Equipment-6 Bedwell
Hall 4.0 SEER 15.0 VAV 4.0 None 3,914
Equipment-7 Bedwell
Hall 5.0 SEER 15.0 VAV 5.0 Temperature 4,535
Equipment-8 Bedwell
Hall 5.0 SEER 15.0 VAV 5.0 Temperature 4,535
Equipment-9 Bedwell
Hall 7.5 IEER 22.5 VAV 7.5 None 6,869
Equipment-10 City Hall/
Library 2.0 SEER 15.0 VAV 2.0 None 1,660
Equipment-11 City Hall/
Library 2.0 SEER 15.0 VAV 2.0 None 1,660
Equipment-12 City Hall/
Library 3.0 SEER 16.0 VAV 3.0 None 2,231
Equipment-13 Community
Center 3.0 SEER 16.0 VAV 3.0 None 3,106
Equipment-14 Community
Center 3.0 SEER 16.1 VAV 3.0 None 3,378
Equipment-15 Community
Center 5.0 SEER 16.0 VAV 5.0 Temperature 4,589
Equipment-16 Community
Center 7.5 IEER 13.8 VAV 7.5 Temperature 6,053
Equipment-17 Community
Center 7.5 IEER 13.8 VAV 7.5 Temperature 6,068
Equipment-18 Public
Works 5.0 SEER 16.1 VAV 5.0 Temperature 1,949
Exhibit C – Performance Assurance
City of Cudahy
Siemens Industry, Inc., Smart Infrastructure
Exhibit C – Performance Assurance v. 2019
ID Building
Name
Cooling
Tons
/Unit
System
Efficiency
Rating
System
Efficiency
Value
Supply
Fan
Control
Fan
HP
Economizer
(None/
Temperature)
Post-Retrofit
Electric
Consumption
(kWhpost)
Equipment-19 Public
Works 5.0 SEER 16.1 VAV 5.0 Temperature 1,949
Equipment-20 Public
Works 8.5 IEER 13.8 VAV 8.5 Temperature 3,112
Equipment-21 Public
Works 8.5 IEER 13.8 VAV 8.5 Temperature 3,112
Equipment-22 Public
Works 8.5 IEER 13.8 VAV 8.5 Temperature 3,112
Equipment-23 Public
Works 10.0 IEER 12.7 VAV 10.0 Temperature 4,004
Equipment-24 Public
Works 10.0 IEER 12.7 VAV 10.0 Temperature 4,004
Equipment-25 Community
Center 7.5 IEER 13.8 VAV 7.5 Temperature 6,128
Savings Calculations:
Energy (kWh) Savings:
kWhs = kWhpre - kWhpost
Where:
kWhS = Annual Electric savings
Formulas for Cost Savings:
$S = (kWhS x $/kWh)
Where:
$S = Annual cost savings
$/kWh = Electricity unit cost per kWh as defined in Article 6 of this Exhibit C
$/kW = Demand units cost per kW as defined in Article 6 of this Exhibit C
$/Therm = Natural gas units cost per therm as defined in Article 6 of this Exhibit C
Exhibit C – Performance Assurance
City of Cudahy
Siemens Industry, Inc., Smart Infrastructure
Exhibit C – Performance Assurance v. 2019
4.3 Option B - Retrofit Isolation: All Parameter Measurement
4.3.1 Solar Photovoltaic
Location(s): City Hall, Community Center/Clare Street Park and Public Works/ Lugo Park ]
Description:
Electrical energy savings will be achieved by the production of electricity by the solar photovoltaic panels. Verification of these energy savings will be based on 15-minute trend intervals of actual electricity production (kWh) and solar insolation (kWh/m2 ).
There may be changes in the production of electricity for which a calculated adjustment is necessary. Actual production will be adjusted to reflect the average sunlight conditions used to establish the guarantee based on the overall efficiency with which sunlight is converted to electricity by the installed system. This conversion efficiency is known as the performance ratio and will be determined based on the contracted rated system power capacity (kW-dc) and continuous monitoring of generated electricity (kWh) and solar insolation (kWh/m2
). Actual production is adjusted to average sunlight conditions because the power capacity of the installed array is guaranteed although availability of sunlight is not.
If Siemens is unable to obtain solar insolation (kWh/m2 ) data through the data acquisition
system, Siemens reserves the right to utilize global horizontal irradiance data from Solargis (or equivalent) and convert it to plane of array to determine the adjusted actual production.
If the maintenance for the photovoltaic system, as established in Article 4 of Exhibit A, is terminated by the CLIENT, the Guaranteed Savings for this FIM will be deemed achieved.
The guaranteed savings for this FIM assumes SCE will, no later than completion of the FIM, approve the rate switch for the Public Works main meter, noted under 6.1.1B in Article 6.
Post-Retrofit Measurements\Calculations:
EAdj = PRact * GEXP * P
PRAct = E / (G * P)
Where:
EAdj = Monthly adjusted actual production (kWh)
PRAct = Actual monthly system performance ratio (%) reflecting overall sunlight to electricity conversion
GEXP = Total monthly expected solar insolation in the plane of array (kWh/m2 ),
as per Table 4.3.#.#
P = Contracted rated system power capacity = [#] kWdc
E = Actual monthly production of solar array (kWh), measured continuously via Data Acquisition System
Exhibit C – Performance Assurance
City of Cudahy
Siemens Industry, Inc., Smart Infrastructure
Exhibit C – Performance Assurance v. 2019
G = Monthly solar insolation (kWh/m2), measured continuously via Data Acquisition System
Table 4.3.1.1 – City Hall Monthly Insolation (GEXP), Monthly Performance Ratio, and Guaranteed Annual Performance Ratio for Annual Period 1 Month
Expected Monthly
Solar Insolation
(GEXP, kWh/m2)
Guaranteed System
Performance Ratio
(PR)
Annual Guaranteed
Performance Ratio
Degradation (%)
January 101.4 68.1%
.5%
February 100.3 69.8%
March 160.5 70.8%
April 192.5 71.8%
May 208.7 71.1%
June 196.7 70.9%
July 231.9 71.0%
August 209.4 70.4%
September 172.3 69.2%
October 137.9 67.7%
November 105.1 66.9%
December 84.4 66.3%
Total 1901.1 69.9% .5%
Table 4.3.1.2 – City Hall Guaranteed Annual Performance Ratio and Electricity Generation (kWh) for each Annual Period
Year
Annual Guaranteed
Performance Ratio
(PR)
Expected Solar PV
System Electricity
Generation (kWh)
Annual Period 1 69.9% 76,456
Annual Period 2 69.6% 76,074
Annual Period 3 69.2% 75,694
Table 4.3.1.3 – Lugo Park/Public Works Monthly Insolation (GEXP), Monthly Performance Ratio, and Guaranteed Annual Performance Ratio for Annual Period 1 Month
Expected Monthly
Solar Insolation
(GEXP, kWh/m2)
Guaranteed System
Performance Ratio
(PR)
Annual Guaranteed
Performance Ratio
Degradation (%)
January 119.6 76.1%
0.50%
February 113 78.0%
March 175.3 78.2%
April 203 77.9%
May 216.3 77.0%
June 204.5 76.5%
July 238.3 76.1%
August 221.4 76.1%
September 189.8 76.7%
Exhibit C – Performance Assurance
City of Cudahy
Siemens Industry, Inc., Smart Infrastructure
Exhibit C – Performance Assurance v. 2019
October 154.6 76.9%
November 124.3 75.8%
December 100.8 74.4%
Total 2060.9 76.7% 0.50%
Table 4.3.1.4 – Lugo Park/Public Works Guaranteed Annual Performance Ratio and Electricity Generation (kWh) for each Annual Period Year
Annual Guaranteed
Performance Ratio
(PR)
Expected Solar PV
System Electricity
Generation (kWh)
Annual Period 1 76.7% 42,203
Annual Period 2 76.3% 41,992
Annual Period 3 75.9% 41,782
Table 4.3.1.5 – Community Center/Clara Park Monthly Insolation (GEXP), Monthly Performance Ratio, and Guaranteed Annual Performance Ratio for Annual Period 1 Month
Expected Monthly
Solar Insolation
(GEXP, kWh/m2)
Guaranteed System
Performance Ratio
(PR)
Annual Guaranteed
Performance Ratio
Degradation (%)
January 119.6 76.6%
0.50%
February 113 78.5%
March 175.3 77.0%
April 203 75.0%
May 216.3 74.3%
June 204.5 74.1%
July 238.3 73.8%
August 221.4 74.4%
September 189.8 75.9%
October 154.6 77.0%
November 124.3 76.1%
December 100.8 74.9%
Total 2060.9 75.4% 0.50%
Table 4.3.1.6 - Community Center/Clara Park Guaranteed Annual Performance Ratio and Electricity Generation (kWh) for each Annual Period Year
Annual Guaranteed
Performance Ratio
(PR)
Expected Solar PV
System Electricity
Generation (kWh)
Annual Period 1 75.4% 65,254
Annual Period 2 75.0% 64,928
Annual Period 3 74.6% 64,603
Savings Calculations:
Electric Energy Savings (kWh/yr):
kWhS = Σ{EAdj}summed for each month of the annual period
Exhibit C – Performance Assurance
City of Cudahy
Siemens Industry, Inc., Smart Infrastructure
Exhibit C – Performance Assurance v. 2019
Cost Savings ($/yr):
$S = kWhS * $/kWh,x
Where:
kWhS = Annual electric savings (kWh/yr)
$S = Annual cost savings
$/kWh = Contracted unit price for electricity at each location as per Article 6 of this Exhibit C
4.4 Option E - Stipulated-Energy/Utility Savings
4.4.1 Transformer replacement
Location(s): City Hall and Bedwell Hall
Overview:
SIEMENS will replace four (4) existing low voltage transformers with four (4) new high efficiency transformers at the City Hall (3) and Bedwell Hall (1). Electric energy savings result from reduced energy losses associated with the transformers.
Pre-Retrofit Equipment Losses:
City Hall BasekWhpre,Loss,n = 13,157 kWh
Bedwell BasekWhpre,Loss,n = 6,837 kWh
Post-Retrofit Equipment Losses:
City Hall Post kWhpre,Loss,n = 1,929 kWh
Bedwell Post kWhpre,Loss,n = 1,067 kWh
Table 4.4.1.1– Transformer Post-Retrofit Parameters
Location
Proposed
Transformer Size
(kVA)
Post-retrofit
no load
losses, NLL
(W)
Post-retrofit
full load
losses, FLL
(kW)
ON %
Loading
OFF %
Loading
City Hall E-Saver-80R 15 35 775 13% 4%
City Hall E-Saver-80R 25 57 674 9.8% 5%
City Hal E-Saver-80R 75 111 2537 10.4% 5%
Bedwell Hall E-Saver-80R 75 111 2537 10.4% 5%
Where:
NLL = Post-retrofit no load losses (kW), as per Table 4.4.1.1 FLL = Post-retrofit full load losses (kW), as per Table 4.4.1.1 ON% = Post-retrofit kW losses during on-peak loading for transformer ‘n’ OFF% = Post-retrofit kW losses during off-peak loading for transformer ‘n’
Exhibit C – Performance Assurance
City of Cudahy
Siemens Industry, Inc., Smart Infrastructure
Exhibit C – Performance Assurance v. 2019
Savings Calculations:
Electricity Savings (kWh/yr):
kWhS = ∑ {(kWhpre,Loss,n – kWhpost,Loss,n)}for each transformer ‘n’ City Hall kWhS = 11,228
Bedwell kWhS = 5,770
Cost Savings ($/yr):
$S = kWhS * $/kWhx
Where:
kWhS = Annual electric energy savings (kWh/yr)
$S = Annual cost savings
$/kWh = Electric energy cost per kWh, as defined in Article 6 of this Exhibit C
Exhibit C – Performance Assurance
City of Cudahy
Siemens Industry, Inc., Smart Infrastructure
Exhibit C – Performance Assurance v. 2019
Article 5: Baseline Data
5.1 The year(s) selected as the Baseline Period starts on April 2019 ends on March 2020. Table 5.1 outlines the utility consumption that occurred during this Baseline Period. This Baseline Period’s Facility utility consumption will be used as the reference for comparing the Facility’s utility consumption during the Performance Guarantee Period in order to determine the Annual Realized Savings.
Table 5.1 – Baseline Utility Consumption
Building / Location Annual Electric
[kWh]
Annual
Electric [kW]
Annual Natural
Gas [Therm]
City Hall, Library, Bedwell Hall,
Cudahy Park 164,380 673 302
Community Center, Sports
Complex, Clara Park 149,198 469 379
Clare Expansion Park 14,550 77 -
Public Works/ Lugo Park - main
meter 90,171 392 286
Public Works/ Lugo Parksecond meter 30,210 195 -
City Owned Street lighting 265,413 - -
Total 713,922 1,806 967
5.2 The operating practices during the Baseline Period determine the utility consumption shown in Table 5.1. This data indicates the operating characteristics that were in effect during the Baseline Period. The Guaranteed Savings provided under this Agreement are based on the efficiencies gained by implementing the Work and implementing the Contracted Baseline in Article 7 of this Exhibit C.
Table 5.2.1 – Baseline Package Units Parameters
Building City
Hall/Library
City
Hall/Library
City
Hall/Library
City
Hall/Library
Unit S-3 2 Ton S-4 3 Ton S-1 10 Ton S-2 10 Ton
EXISTING EXISTING EXISTING EXISTING
1. Economizer None None None None
Minimum OSA % 20% 20% 20% 20%
Mixed Air Setpoint (°F)
Low Limit (°F)
High Limit (°F)
Enthalpy Limit (Btu/lb)
2. SEER / EER / IEER 13.0 13.0 10.1 10.1
3. Supply Air Flow (CFM) 800 1200 4000 4000
4. Supply Fan Control Cycling Cycling Cycling Cycling
Minimum Air Flow (%) 100% 100% 100% 100%
Exhibit C – Performance Assurance
City of Cudahy
Siemens Industry, Inc., Smart Infrastructure
Exhibit C – Performance Assurance v. 2019
Motor Efficiency (%) 85% 85% 85% 85%
5. Heat Source None None Electric Electric
Heating Output (BTU or kW) 10 11
Thermal Efficiency 100% 100%
Heat Pump - HCOP (rated at 47°F
OSA)
6. OCCUPIED
Cooling Setpoint (°F) 70 70 70 70
Heating Setpoint (°F) 68 68 68 68
UNOCCUPIED
Cooling Setpoint (°F) 70 70 70 70
Heating Setpoint (°F) 68 68 68 68
7. OSA Damper Closed at Night? No No No No
8. Fan Operation at Night? No No No No
9. CO2 Sensors? No No No No
10. Schedule
M-F
7am–9pm
Sat
9am-5pm
M-F
7am–9pm
Sat
9am-5pm
M-F
7am–9pm
Sat
9am-5pm
M-Th
7am-9pm
Table 5.2.2 – Baseline Package Units Parameters
Building Bedwell
Hall
Bedwell
Hall
Bedwell
Hall
Bedwell
Hall
Unit
AC-2
2 Ton
FC 1.1
4 Ton
AC-1 & AC4 5 TonAC-5
7.5 Ton
EXISTING EXISTING EXISTING EXISTING
1. Economizer None None None None
Minimum OSA % 20% 20% 20% 20%
Mixed Air Setpoint (°F)
Low Limit (°F)
High Limit (°F)
Enthalpy Limit (Btu/lb)
2. SEER / EER / IEER 13.0 13.0 11.0 10.1
3. Supply Air Flow (CFM) 800 1600 1750 3000
4. Supply Fan Control Cycling Cycling Cycling Cycling
Minimum Air Flow (%) 100% 100% 100% 100%
Motor Efficiency (%) 85% 85% 85% 85%
5. Heat Source None Electric Gas Gas
Heating Output (BTU or kW) 4 57,100 72,000
Thermal Efficiency 100% 79% 80%
Heat Pump - HCOP (rated at 47°F
OSA)
6. OCCUPIED
Cooling Setpoint (°F) 69 69 69 69
Heating Setpoint (°F) 68 68 68 68
UNOCCUPIED
Cooling Setpoint (°F) 69 69 69 69
Heating Setpoint (°F) 68 68 68 68
7. OSA Damper Closed at Night? No No No No
8. Fan Operation at Night? No No No No
9. CO2 Sensors? No No No No
Exhibit C – Performance Assurance
City of Cudahy
Siemens Industry, Inc., Smart Infrastructure
Exhibit C – Performance Assurance v. 2019
10. Schedule M-Th
7am-9pm
M-Th
7am-9pm
M-Th
7am-9pm
M-Th
7am-9pm
Table 5.2.3 – Baseline Package Units Parameters
Building City
Hall/Library
City
Hall/Library
Community
Center
Community
Center
Unit
AC-2 & AC3 2 TonAC-1
3 Ton
AC-3
3 Ton
No label
3 Ton
EXISTING EXISTING EXISTING EXISTING
1. Economizer None None None None
Minimum OSA % 20% 20% 20% 20%
Mixed Air Setpoint (°F)
Low Limit (°F)
High Limit (°F)
Enthalpy Limit (Btu/lb)
2. SEER / EER / IEER 13.0 13.0 13.0 13.0
3. Supply Air Flow (CFM) 800 1200 1510 1200
4. Supply Fan Control Cycling Cycling VAV Cycling
Minimum Air Flow (%) 100% 100% 60% 100%
Motor Efficiency (%) 85% 85% 85% 85%
5. Heat Source Electric None Gas Gas
Heating Output (BTU or kW) 2 72,000 72,000
Thermal Efficiency 100% 80% 80%
Heat Pump - HCOP (rated at 47°F
OSA)
6. OCCUPIED
Cooling Setpoint (°F) 70 70 72 72
Heating Setpoint (°F) 68 68 68 68
UNOCCUPIED
Cooling Setpoint (°F) 70 70 72 72
Heating Setpoint (°F) 68 68 68 68
7. OSA Damper Closed at Night? No No No No
8. Fan Operation at Night? No No No No
9. CO2 Sensors? No No No No
10. Schedule M-Th
7am-9pm
M-Th
7am-9pm
M-F
7am-8pm
M-F
7am-8pm
Table 5.2.4 – Baseline Package Units Parameters
Building Community
Center
Community
Center
Community
Center
Public
Works
Unit
No Label
5 Ton
AC-2
7.5 Ton
AC-4
7.5 Ton
No Label
2 @ 5 Ton
EXISTING EXISTING EXISTING EXISTING
1. Economizer None None None None
Minimum OSA % 20% 20% 20% 20%
Mixed Air Setpoint (°F)
Low Limit (°F)
High Limit (°F)
Enthalpy Limit (Btu/lb)
Exhibit C – Performance Assurance
City of Cudahy
Siemens Industry, Inc., Smart Infrastructure
Exhibit C – Performance Assurance v. 2019
2. SEER / EER / IEER 10.1 8.9 10.1 11.0
3. Supply Air Flow (CFM) 1750 3000 3000 1750
4. Supply Fan Control Cycling Cycling Cycling Cycling
Minimum Air Flow (%) 100% 100% 100% 100%
Motor Efficiency (%) 85% 85% 85% 85%
5. Heat Source Gas Gas Gas Gas
Heating Output (BTU or kW) 57,100 162,000 130,000 57,100 Thermal Efficiency 80% 78% 80% 79%
Heat Pump - HCOP (rated at 47°F
OSA)
6. OCCUPIED
Cooling Setpoint (°F) 72 72 72 71
Heating Setpoint (°F) 68 68 68 68
UNOCCUPIED
Cooling Setpoint (°F) 72 72 72 71
Heating Setpoint (°F) 68 68 68 68
7. OSA Damper Closed at Night? No No No No
8. Fan Operation at Night? No No No No
9. CO2 Sensors? No No No No
10. Schedule
M-F
7am-8pm
Sat
12pm12am
M-F
7am-8pm
Sat
12pm12am
M-F
7am-8pm
Sat
12pm12am
M-Th
10am-3pm
Table 5.2.5 – Baseline Package Units Parameters
Building Public
Works
Public
Works
Public
Works
Community
Center
Unit
No Label
2 @ 8.5
Ton
No Label
10 Ton
No Label
2 @ 10 Ton
No Label
7.5 Ton
EXISTING EXISTING EXISTING EXISTING
1. Economizer None None None None
Minimum OSA % 20% 20% 20% 20%
Mixed Air Setpoint (°F)
Low Limit (°F)
High Limit (°F)
Enthalpy Limit (Btu/lb)
2. SEER / EER / IEER 10.8 10.1 10.1 9.0
3. Supply Air Flow (CFM) 3000 3800 3800 3000
4. Supply Fan Control Cycling Cycling Cycling Cycling
Minimum Air Flow (%) 20% 20% 20% 20%
Motor Efficiency (%) 85% 85% 85% 85%
5. Heat Source Gas Gas Gas Gas
Heating Output (BTU or kW) 102,500 192,000 192,000 97,000 Thermal Efficiency 78% 80% 80% 81%
Heat Pump - HCOP (rated at 47°F
OSA)
6. OCCUPIED
Cooling Setpoint (°F) 71 71 71 72
Heating Setpoint (°F) 68 68 68 68
UNOCCUPIED
Cooling Setpoint (°F) 71 71 71 72
Exhibit C – Performance Assurance
City of Cudahy
Siemens Industry, Inc., Smart Infrastructure
Exhibit C – Performance Assurance v. 2019
Heating Setpoint (°F) 68 68 68 68
7. OSA Damper Closed at Night? No No No No
8. Fan Operation at Night? No No No No
9. CO2 Sensors? No No No No
10. Schedule M-Th
10am-3pm
M-Th
10am-3pm
M-Th
10am-3pm
M-Th
7am-8pm
Sat
12pm12am
5.3 Applicable codes - Federal, State, County or Municipal codes or regulations are applicable to the use and operation of the Facility. SIEMENS will maintain the current level of Facility compliance relative to applicable codes in effect on the Agreement Effective Date unless specifically outlined to the contrary below. Unless specifically set forth in the Scope of Work and Services, Exhibit A, nothing herein should be construed as to require SIEMENS to provide additional work or services in the event that the current applicable code or regulation is modified.
5.3.1 Current code compliance (identify the applicable code citation):
a. California Title 24
Exhibit C – Performance Assurance
City of Cudahy
Siemens Industry, Inc., Smart Infrastructure
Exhibit C – Performance Assurance v. 2019
Article 6: Utility Rate Structures and Escalation Rates
6.1 Utility costs used for Savings calculations will be based on the utility rates and Escalation Rates, as provided in the table(s) below. Each Escalation Rate will be applied annually to the utility rate.
Table 6.1.1A Electric Utility Rates
Building Rates based on FIM Rate
Schedule
Baseline rate Proposed rate
$/kWh $/kW $/kWh $/kW
City Hall, Library,
Bedwell Hall,
Cudahy Park
Lighting Upgrade- Interior
Lighting,
HVAC Upgrades
TOU-GS2E $0.206/kWh $14.51/kW $0.206/kWh $14.51/kW
Lighting Upgrade-Exterior
Lighting
TOU-GS2E $0.184/kWh $14.51/kW $0.184/kWh $14.51/kW
Community
Center, Sports
Complex, Clara
Park
Lighting Upgrade- Interior
Lighting,
HVAC Upgrades
TOU-GS2E $0.201/kWh $14.51/kW $0.201/kWh $14.51/kW
Lighting Upgrade-Exterior
Lighting
TOU-GS2E $0.184/kWh $14.51/kW $0.184/kWh $14.51/kW
Clare Expansion
Park
Lighting Upgrade-Exterior
Lighting
AL-2-F $0.106/kWh N/A $0.106/kWh N/A
Public
Works/Lugo Park
Main Meter
Lighting Upgrade- Interior
Lighting,
HVAC Upgrades
TOU-GS2D
CPP
To
TOU-GS2E
$0.111/kWh $37.48/kW $0.189/kWh $14.51/kW
Lighting Upgrade-Exterior
Lighting
TOU-GS2D
CPP
To
TOU-GS2E
$0.121/kWh $37.48/kW $0.184/kWh $14.51/kW
City Owned
Street Lighting
Street Lighting LS-2 $0.17/kWh N/A $0.17/kWh N/A
Table 6.1.1B Solar Electric Utility Rates
Building
Rate
Schedule
Weighted average based on
Solar Production Hours
$/kWh
City Hall, Library, Bedwell Hall, Cudahy Park TOU-GS-2E $0.155 / kWh Community Center, Sports Complex, Clara Park TOU-GS-2E $0.170 / kWh *Public Works/Lugo Park TOU-GS-2E $0.201 / kWh
*Note: Siemens will assist customer in rate switch from TOU-GS-2D to TOU-GS-2E Table 6.1.2 Gas Utility Rates
Building
Rate
Schedule $/Therm
City Hall, Library, Bedwell Hall, Cudahy Park GN-10 $1.60 /Therm Community Center, Sports Complex, Clara Park GN-10 $1.58 /Therm Public Works/Lugo Park GN-10 $1.59 /Therm
Exhibit C – Performance Assurance
City of Cudahy
Siemens Industry, Inc., Smart Infrastructure
Exhibit C – Performance Assurance v. 2019
The baseline rate schedules above used in the calculations were those prevailing at the time of execution of this contract escalated by 4%. Energy Escalation Rate: 4.0% per Annual Period thereafter.
Derate value of .5% will be applied to Solar savings per annual period.
Article 7: Contracted Baseline Data
7.1 The following tables detail the Facility operating parameters that are required to be implemented on the Guarantee Date or on such time as agreed upon by the Parties. This specific configuration of Facility operating parameters is the Contracted Baseline and failure of the CLIENT to maintain the Contracted Baseline may result in a Material Change which may require a modification of the Performance Guarantee pursuant to Article 4 of the Agreement.
Table 7.1.1 Baseline Package Units Parameters
Building City
Hall/Library
City
Hall/Library
City
Hall/Library
City
Hall/Library
Unit S-3 2 Ton S-4 3 Ton S-1 10 Ton S-2 10 Ton
PROPOSED PROPOSED PROPOSED PROPOSED
1. Economizer None None None Temperature
Minimum OSA % 20% 20% 20% 20%
Mixed Air Setpoint (°F) 57
Low Limit (°F) 50
High Limit (°F) 70
Enthalpy Limit (Btu/lb)
2. SEER / EER / IEER 15.0 15.0 22.0 22.0
3. Supply Air Flow (CFM) 800 1200 6286 6286
4. Supply Fan Control VAV VAV VAV VAV
Minimum Air Flow (%) 40% 40% 40% 40%
Motor Efficiency (%) 85% 85% 85% 85%
5. Heat Source Electric Electric Electric Electric
Heating Output (BTU or kW) 1.95 2.93 9.92 9.92
Thermal Efficiency 100% 100% 100% 100%
Heat Pump - HCOP (rated at 47°F
OSA)
6. OCCUPIED
Cooling Setpoint (°F) 70 70 70 70
Heating Setpoint (°F) 68 68 68 68
UNOCCUPIED
Cooling Setpoint (°F) 70 70 70 70
Heating Setpoint (°F) 68 68 68 68
7. OSA Damper Closed at Night? No No No No
8. Fan Operation at Night? No No No No
9. CO2 Sensors? No No No No
10. Schedule M-F
7am–9pm
M-F
7am–9pm
M-F
7am–9pm
M-Th
7am-9pm
Exhibit C – Performance Assurance
City of Cudahy
Siemens Industry, Inc., Smart Infrastructure
Exhibit C – Performance Assurance v. 2019
Table 7.1.2 Baseline Package Units Parameters
Building Bedwell Hall Bedwell Hall Bedwell Hall Bedwell Hall Unit
AC-2
2 Ton
FC 1.1
4 Ton
AC-1 & AC4 5 TonAC-5
7.5 Ton
PROPOSED PROPOSED PROPOSED PROPOSED
1. Economizer None None Temperature None
Minimum OSA % 20% 20% 20% 20%
Mixed Air Setpoint (°F) 57
Low Limit (°F) 50
High Limit (°F) 70
Enthalpy Limit (Btu/lb)
2. SEER / EER / IEER 15.0 15.0 15.0 22.5
3. Supply Air Flow (CFM) 800 1600 2000 5827
4. Supply Fan Control VAV VAV VAV VAV
Minimum Air Flow (%) 40% 40% 40% 40%
Motor Efficiency (%) 85% 85% 85% 85%
5. Heat Source Electric Electric Electric Electric
Heating Output (BTU or kW) 1.95 3.91 4.75 6.62
Thermal Efficiency 100% 100% 100% 100%
Heat Pump - HCOP (rated at 47°F
OSA)
6. OCCUPIED
Cooling Setpoint (°F) 69 69 69 69
Heating Setpoint (°F) 68 68 68 68
UNOCCUPIED
Cooling Setpoint (°F) 69 69 69 69
Heating Setpoint (°F) 68 68 68 68
7. OSA Damper Closed at Night? No No No No
8. Fan Operation at Night? No No No No
9. CO2 Sensors? No No No No
10. Schedule M-Th
7am-9pm
M-Th
7am-9pm
M-Th
7am-9pm
M-Th
7am-9pm
Table 7.1.3 Baseline Package Units Parameters
Building City
Hall/Library
City
Hall/Library
Community
Center
Community
Center
Unit
AC-2 & AC3 2 TonAC-1
3 Ton
AC-3
3 Ton
No Label
3 Ton
PROPOSED PROPOSED PROPOSED PROPOSED
1. Economizer None None None None
Minimum OSA % 20% 20% 20% 20%
Mixed Air Setpoint (°F)
Low Limit (°F)
High Limit (°F)
Enthalpy Limit (Btu/lb)
2. SEER / EER / IEER 15.0 16.0 16.0 16.1
3. Supply Air Flow (CFM) 874 1199 1264 1200
4. Supply Fan Control VAV VAV VAV VAV
Minimum Air Flow (%) 40% 40% 40% 40%
Motor Efficiency (%) 85% 85% 85% 85%
Exhibit C – Performance Assurance
City of Cudahy
Siemens Industry, Inc., Smart Infrastructure
Exhibit C – Performance Assurance v. 2019
5. Heat Source Gas Gas Gas Gas
Heating Output (BTU or kW) 37,000 49,000 49,000 49,000
Thermal Efficiency 80% 80% 80% 80%
Heat Pump - HCOP (rated at 47°F
OSA)
6. OCCUPIED
Cooling Setpoint (°F) 70 70 72 72
Heating Setpoint (°F) 68 68 68 68
UNOCCUPIED
Cooling Setpoint (°F) 70 70 72 72
Heating Setpoint (°F) 68 68 68 68
7. OSA Damper Closed at Night? No No No No
8. Fan Operation at Night? No No No No
9. CO2 Sensors? No No No No
10. Schedule M-Th
7am-9pm
M-Th
7am-9pm
M-F
7am-8pm
M-F
7am-8pm
Table 7.1.4 Baseline Package Units Parameters
Building Community
Center
Community
Center
Community
Center
Public
Works
Unit
AC-2
5 Ton
AC-4
7.5 Ton
No Label
7.5 Ton
No Label
2 @ 5 Ton
PROPOSED PROPOSED PROPOSED PROPOSED
1. Economizer Temperature Temperature Temperature Temperature Minimum OSA % 20% 20% 20% 20%
Mixed Air Setpoint (°F) 57 57 57 57
Low Limit (°F) 50 50 50 50
High Limit (°F) 70 70 70 70
Enthalpy Limit (Btu/lb)
2. SEER / EER / IEER 16.0 13.8 13.8 16.1
3. Supply Air Flow (CFM) 1990 3000 3000 2000
4. Supply Fan Control VAV VAV VAV VAV
Minimum Air Flow (%) 40% 40% 40% 40%
Motor Efficiency (%) 85% 85% 85% 85%
5. Heat Source Gas Gas Gas Gas
Heating Output (BTU or kW) 73,000 73,000 73,000 49,000
Thermal Efficiency 80% 80% 80% 80%
Heat Pump - HCOP (rated at 47°F
OSA)
6. OCCUPIED
Cooling Setpoint (°F) 72 72 72 71
Heating Setpoint (°F) 68 68 68 68
UNOCCUPIED
Cooling Setpoint (°F) 72 72 72 71
Heating Setpoint (°F) 68 68 68 68
7. OSA Damper Closed at Night? No No No No
8. Fan Operation at Night? No No No No
9. CO2 Sensors? No No No No
10. Schedule M-F
7am-8pm
M-F
7am-8pm
M-F
7am-8pm
M-Th
10am-3pm
Exhibit C – Performance Assurance
City of Cudahy
Siemens Industry, Inc., Smart Infrastructure
Exhibit C – Performance Assurance v. 2019
Table 7.1.5 Baseline Package Units Parameters
Building Public
Works
Public
Works
Public
Works
Community
Center
Unit
No Label
2 @ 8.5 Ton
No Label
8.5 Ton
No Label
2 @ 10 Ton
No Label
7.5 Ton
PROPOSED PROPOSED PROPOSED PROPOSED
1. Economizer Temperature Temperature Temperature Temperature Minimum OSA % 20% 20% 20% 20%
Mixed Air Setpoint (°F) 57 57 57 57
Low Limit (°F) 50 50 50 50
High Limit (°F) 70 70 70 70
Enthalpy Limit (Btu/lb)
2. SEER / EER / IEER 13.8 13.8 12.7 13.8
3. Supply Air Flow (CFM) 3400 3400 4000 3000
4. Supply Fan Control VAV VAV VAV VAV
Minimum Air Flow (%) 40% 40% 40% 40%
Motor Efficiency (%) 85% 85% 85% 85%
5. Heat Source Gas Gas Gas Gas
Heating Output (BTU or kW) 73,000 73,000 89,000 73,000
Thermal Efficiency 80% 80% 80% 80%
Heat Pump - HCOP (rated at 47°F
OSA)
6. OCCUPIED
Cooling Setpoint (°F) 71 71 71 72
Heating Setpoint (°F) 68 68 68 68
UNOCCUPIED
Cooling Setpoint (°F) 71 71 71 72
Heating Setpoint (°F) 68 68 68 68
7. OSA Damper Closed at Night? No No No No
8. Fan Operation at Night? No No No No
9. CO2 Sensors? No No No No
10. Schedule
M-Th
10am-3pm
M-Th
10am-3pm
M-Th
10am-3pm
M-Th
7am-8pm
Sat
12pm-12am
Exhibit D-1 – Form of Certificate of Substantial Completion
Siemens Industry, Inc., Smart Infrastructure
Exhibit D-1 – Certificate of Substantial Completion v. 2019 Certificate of Substantial Completion
PROJECT NAME: City of Cudahy
CLIENT: City of Cudahy
CERTIFICATE DATE (mm/dd/yyyy):
CERTIFICATE NUMBER:
PROJECT NUMBER:
The following portions of the Work are at Substantial Completion in accordance with the Agreement. (Insert unique Work item such as Facility Improvement Measure title, system name, building, etc.) Work Item:
Warranty Start Date (mm/dd/yyyy):
Work Item:
Warranty Start Date (mm/dd/yyyy):
Work Item:
Warranty Start Date (mm/dd/yyyy):
Siemens Industry, Inc. guarantees the workmanship and materials of the above Substantially Complete Work in accordance with the Agreement.
The Work indicated above has been reviewed by the CLIENT and has been found, to the best of the CLIENT’s knowledge, to be Substantially Complete. Substantial Completion is the milestone in the progress of the Work at which time the Work is sufficiently complete and available for the CLIENT to have beneficial use of the Work for its intended purpose. A list of items to be completed and corrected (if any) shall be identified as the Outstanding Items List, attached to this form, and indicated by checking the appropriate box below:
Outstanding Items List Attached: No Outstanding Items Noted:
The failure of the CLIENT to note items requiring completion or correction does not relieve the contractual responsibility of Siemens Industry, Inc. to complete or correct the Work. Work found to require completion or correction after the Certificate Date of this Certificate, but within the warranty period shall be corrected in accordance with the Agreement’s warranty provisions.