MASTER OPERATION AND MAINTENANCE AGREEMENT
This MASTER OPERATION & MAINTENANCE AGREEMENT (this “Agreement”) is entered into as of ________________________ for reference purposes between CEG Solutions LLC, a Maryland limited liability company having its principal office at 4040 N. Fairfax Dr., Ste. 700, Arlington, VA 22203 (“Contractor”) and The City of Garden Grove, a California Municipality having its principal office at 11222 Acacia Pkwy., Garden Grove, CA 92840 (“ City”). Contractor and City are referred to herein individually as a “Party” and jointly as the “Parties”.
RECITALS
WHEREAS, Contractor will install certain solar electric generation systems generally consisting of Electricity grid-connected roof-mounted and parking canopy-mounted photovoltaic system with a total rated approximate capacity of 320 kW -DC-STC and Battery Energy Storage rated with approximate capacity of 415 kWh and power of 84kW (the “Systems”) as a subcontractor pursuant to a separate contract between The City of Garden Grove and Clark Construction Group – California LP.
WHEREAS, City now desires to engage Contractor to provide operation and maintenance services for the Systems.
WHEREAS, Contractor agrees to provide operation and maintenance services for the Systems subject to the terms and conditions of this Agreement, and C ity agrees to pay for such services and to fulfill the other requirements contained in this Agreement.
NOW THEREFORE, in consideration of the mutual promises set forth below, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
AGREEMENT
1. DEFINITIONS
Unless otherwise required by the context in which any term appears: (a) capitalized terms used in this Agreement have the meanings listed in this Section 1; (b) the singular includes the plural and vice versa; (c) the word “including” indicates examples an d does not limit general terms, (d) references to “Sections”, and “Exhibits” are to sections, schedules and exhibits hereof; (e) the words “herein”, “hereof” and “hereunder” refer to the Agreement as a whole and not to any particular section or subsection hereof; and (f) references to the Agreement include all schedules and exhibits as they may be amended, modified, supplemented or replaced from time to time in accordance with the Agreement.
“Additional Services” shall have the meaning as described in Section 2.3.
“Annual Production Credit” shall have the meaning set forth in each Services Work Order.
“Applicable Law ” means any constitutional provision, law, statute, rule, regulation, ordinance, order, decree, judgment, decision, certificate, injunction, registration, license, permit, authorization, guideline, governmental approval, consent or requirement of a Governmental Authority with
jurisdiction over a Party, the Site or this Agreement, as construed from time to time by any Governmental Authority, as well as applicable industrial or engineering codes, standards or guidelines, insurance requirements and the other applicable requirements of the Local Electric Utility.
“Commercial Operation Date ” or “ COD” shall be the date the Local Electric Utility issu es permission to operate the System or the date the System is substantially complete and able to operate, whichever is later. The parties shall memorialize the COD in writing prior to the start of the Services.
“Confidential Information” shall have the meaning set forth in Section 5.3. “Contract Price” shall have the meaning set forth in Section 3.1. “Disclosing Party” shall have the meaning set forth in Section 5.3. “Dispute” has the meaning set forth in Section 5.8(a).
“Force Majeure Event” means any act or event (to the extent not caused by such Party or its agents or employees) that is unforeseeable or, if foreseeable, unavoidable and outside the control of the Party that invokes it, and which renders a Party unable to comply totally or partially wit h its obligations under the Agreement. Examples of a Force Majeure Event include: war (whether or not formally declared), hostilities, revolution, terrorism, insurrection against any Governmental Authority, riot or other civil disturbance; pandemic, widespread epidemic or similar public health emergency; acts of nature such as floods, lightning, earthquakes, hailstorms, ice storms, tornados, hurricanes, landslides, volcanic eruptions, fires, objects striking the earth from space; sabotage or destruction by a third party (other than one retained by a Party) of facilities and equipment relating to the performance by the affected Party of its obligations under this Agreement; regional or national strikes, walkouts, lockouts or other labor actions or dispu tes; widespread electrical grid outages; acts of any Governmental Authority that materially restrict or limit Contractor’s access to the Site or performance of the Services; compliance with any order or request of any Governmental Authority; inability to o btain equipment, materials or qualified labor sufficient to perform the Services.
“Governmental Authority” means any national, regional, province, town, city, state or municipal government, whether domestic or foreign, or other administrative, regulatory or judicial body having jurisdiction over the Site or a Party.
“Hazardous Waste” means a solid waste which is specifically listed as a known hazardous waste or meets the characteristics of a hazardous waste. Listed wastes are wastes from common manufacturing and industrial processes, specific industries and can be generated from discarded commercial products. Characteristic wastes are wastes that exhibit any one or more of the following characteristic properties: ignitability, corrosivity, reacti vity or toxicity; or, any waste defined as a hazardous waste by the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq., the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. Section 9601 et seq., or any similar state statute.
“Indemnified Party” shall have the meaning as described in Section 4.4(c).
“Indemnifying Party” shall have the meaning as described in Section 4.4(c).
“Local Electric Utility” means the utility or any other party owning or controlling the electric
utility transmission or distribution system to which the Site or the System will be interconnected.
“Operating Year” means the twelve (12) month period after the Commercial Operation Date, and each subsequent year beginning 365 days after the prior Operating Year.
“Party” means, individually, each of the Parties first listed above.
“Person” means, as the context requires, any individual, corporation, partnership, company, joint venture, association, trust, unincorporated organization or Governmental Authority.
“Production Shortfall” shall have the meaning set forth in each Services Work Order.
“Receiving Party” shall have the meaning set forth in Section 5.3.
“Services Work Order” shall have the meaning set forth in Section 2.1.
“Services” shall have the meaning set forth in Section 2.2 and each Services Work Order.
“System” shall have the meaning as described in Section 2.1
“Site” shall have the meaning as described in Section 2.1 . “ Term” shall have the meaning as described in Section 4.1(a).
2. SYSTEM AND SERVICES
2.1 System and Site.
(a) The Parties shall enter into a Services Work Order, substantially in the form attached hereto as Exhibit A, for each separate Site or System, under which Contractor shall provide the Services (hereinafter defined) for such system (the “Services Work Order ”). Each system identified in an executed Services Work Order is hereinafter referred to in this Agreement as a “ System” and the location of such system is hereinafter referred to in this Agreement as the “Site”.
(b) In the event a Services Work Order is mutually agreed upon and executed by both Parties, the terms of each Services Work Order are hereby incorporated into this Agreement and in the event of conflict between this Agreement and Services Work Order, the terms of the Services Work Order shall prevail in terms of such System.
2.2 Services. City hereby engages Contractor to perform certain work and services described in each Services Work Order (the “Services”).
2.3 Additional Services. In the event City gives Contractor written notice of any maintenance, corrective maintenance, repair or other services that City wants performed on the System that is not listed in a Services Work Order (“Additional Services”), Contractor shall provide a quote to complete the work as requested.
2.4 Emergency Service. In the event of an emergency, City shall take necessary steps to secure the safety of its personnel and minimize damage to the System. As soon as practicable, C ity shall
notify Contractor of the emergency. City and Contractor shall jointly formulate a response, including Contractor’s performance of work to enable the continued operation of the System, if necessary.
City shall have policies and procedures in place (including notification procedures) to address emergencies at the Site that affect the System. Emergency services shall be invoiced as Additional Services.
2.5 Standard of Performance. Unless otherwise stated in th e Services Work Order, Contractor shall, and shall cause any subcontractors to, perform the Services in accordance with the terms of this Agreement and applicable operation and maintenance manuals, in a good and workmanlike manner, and in accordance with practices, methods, techniques and standards that (i) are generally accepted in the solar photovoltaic power industry in the United States for use in connection with the operation and maintenance of solar power generating projects of similar size and type as the System all in a manner consistent with Governmental Authority, reliability and good workmanship; and (ii) operate the System in accordance with (a) any manufacturer design, engineering, construction, testing, operation and maintenance guidelines appl icable to the equipment in question and (b) any applicable annual project operating plans of City. The foregoing practices are not intended to mean the optimum practice, method, specification or standard but rather refers to commonly used and reasonable practices and methods.
2.6 Subcontractors. Contractor may utilize subcontractors to perform any portion of the Services or Additional Services. Contractor shall be solely responsible for the work of its subcontractors.
2.7 Warranty.
(a) Contractor warrants that the Services performed will be free from defects in workmanship for a period of ninety (90) days from the date of performance of any such Services, provided City shall give Contractor written notice of any defect within such ninety (90) day period.
(b) Equipment Warranties. Contractor’s warranty obligations under this Agreement exclude any obligation to repair or replace equipment manufactured by third parties, and C ity agrees to solely look to the manufacturer of such equipment for any remedy under any applicable manufacturer’s warranty. In the event the City desires to pursue remedies under a manufacturer’s warranty, City shall give Contractor written notice and Contractor shall use reasonable efforts to facilitate City’s warranty claim. Any removal, replacement, freight, and investigation costs not covered under the manufacturer warranty will be at the cost of the City.
(c) THE WARRANTIES CONTAINED HEREIN ARE IN LIEU OF ALL OTHER
WARRANTIES, INCLUDING ANY WARRANTIES OF MER CHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE. ANY IMPLIED WARRANTIES ARE WAIVED TO THE FULLEST EXTENT PERMISSIBLE UNDER STATE AND FEDERAL LAW. THE
WARRANTIES CONTAINED HEREIN EXCLUDE CONSEQUENTIAL AND INCIDENTAL
DAMAGES AND ARE LIMITED IN DURATION TO THE FULLEST EXTENT PERMISSIBLE UNDER STATE AND FEDERAL LAW.
2.8 City Obligations.
(a) Access. City shall provide access to the System and Site sufficient for Contractor to perform the Services, as well as utilities and other services that Contractor identifies as necessary for support
of its work. Upon notification of Data Acquisition System ( DAS) alarms that require Additional Services, City will grant Contractor prompt access to the Site to respond to the alarms. City shall accommodate any special access requirements such as badging, facility contact, and gate codes that are listed in each Services Work Order.
(b) Operation of System. City is responsible for and retains full care, custody and control of the System, is responsible for maintaining a safe operating environment at the Site and for the System and is responsible for the day -to-day operations of the System. City is responsible for meeting all operating requirements of utility, local, state and federal regulatory bodies and for all reporting requirements of utility, local, state and federal regulatory bodies relating to the ownership, operation and maintenance of the System.
(c) Government Authority. City shall obtain, maintain and comply with all any Government Authority requirements for the operation of the System. Contractor will provide reasonable assistance to City with respect to government requ irements upon City’s written request as an Additional Service.
(d) Interconnection. City shall be party to or ensure that there are separate legal agreements with parties for, all contracts for sale and transmission of System energy and responsible for all utility, interconnection and transmission costs of the System and of its operation.
2.9 Party Representatives.
(a) City Representative. City shall designate in writing a representative as their City Representative for all matters relating to City’s obligations u nder this Agreement. City Representative shall have the authority to bind City and the actions taken by City Representative shall be deemed the acts of City and shall be fully binding upon City.
(b) Contractor Representative . Contractor shall designate in wri ting a Contractor Representative. Contractor Representative shall have the authority to bind Contractor and the actions taken by Contractor Representative shall be deemed the acts of Contractor and shall be fully binding upon Contractor.
2.10 Title. Title to all materials and equipment incorporated into the System by Contractor when performing under this Agreement shall transfer to City upon payment by City to Contractor for such material and equipment.
2.11 Liens. Provided City has made all payments currently due, Contractor shall not directly or indirectly cause, create, incur, assume, or suffer to exist any liens, claims, charges, security interests, and encumbrances whatsoever on the Site or any System, or any part of, or interest in, any of the foregoing, and upon receipt of payment in full for the Work hereunder, Contractor shall promptly pay or discharge of record or bond any such liens, claims, charges, security interests, and encumbrances.
2.12 Contractor’s Insurance . Contractor shall throughout the Term maintain the following insurance:
(a) Workers compensation insurance, as required by Applicable Law, and Employer’s Liability insurance with a $1,000,000 limit.
(b) Automobile liability insurance covering all automobiles, w hether owned or leased, in an amount not less than $1,000,000 combined single limit.
(c) Commercial general liability insurance with limits of not less than $1,000,000 per occurrence. Such insurance shall include coverage for premises/operations, explosion, c ollapse, underground hazards, contractual liability, independent contractors, sudden and accidental pollution, products/completed operations, cross liability, property damage and personal injury liability.
2.13 Reserved.
2.14 Insurance – Form and Content. Each policy shall waive any rights of claims and subrogation and shall name the City as an additional insured on its liability policies. Contractor shall furnish the City with certificates and endorsements evidencing that the required insurance is in effect.
3. FEES AND PAYMENT TERMS
3.1 Payments for Services . As compensation for the Services, City shall pay Contractor the amount specified in each Services Work Order (“Contract Price”). Contractor shall invoice City upon completion of each milestone listed in each Services Work Order and City shall work to pay each invoice within forty-five (45) days of receipt.
3.2 Payments for Additional Services . Contractor shall invoice City upon completion of any Additional Services. City shall work to pay each invoice within forty-five (45) days of receipt.
3.3 Taxes. City shall be responsible for the cost of all sales, use, property, excise, and other taxes (federal, state, local or otherwise), including any interest and tax penalties associated therewith, but excluding any taxes ba sed on Contractor’s net income, which are levied or imposed by reason of Contractor’s performance of the Services. City shall be responsible for costs associated with Audits originating from Taxing authorities (Federal, state, local or otherwise) and will be responsible for any agreed upon assessments. Notwithstanding any other provisions contained herein, each Party (and each of its respective employees, representatives or other agents) may disclose to any and all Persons, without limitations of any kind, the tax treatment and any facts that may be relevant to the tax structure of the transactions contemplated by this Agreement; provided, however, that no Party (and no employee, representative, or other agent thereof) shall disclose any other information th at is not relevant to understanding the tax treatment and tax structure of the transaction (including the identity of any Party and any information that could lead another to determine the identity of any party), or any other information to the extent that such disclosure would result in a violation of any federal or state securities law.
4. TERM AND TERMINATION; INDEMNITIES; LIMITATION OF LIABILITY
4.1 Term.
(a) The term of each Services Work Order for the Services (the “Term”) shall commence on the Commercial Operation Date and expire on the Expiration Date, as such dates are listed in each Services Work Order. City may terminate this Agreement and any Services Work Order upon 180 days’ notice to Contractor.
(b) If this Agreement is terminated for any reason other than a termination for cause, Contractor shall be entitled to payment for services completed through the date of termination. The Term may be extended upon mutual agreement of the Parties in writing, provi ded City shall deliver a written request to extend the Term to Contractor no later than sixty (60) days prior to the end of the Term.
4.2 Termination by City. Contractor agrees that City shall be entitled to terminate this Agreement pursuant to written notice upon the occurrence of any of the following circumstances:
(a) Contractor violates in any material respect any of the provisions of this Agreement, which violation remains uncured for t hirty (30) days following Contractor’s receipt of written notice thereof from City; provided however, that if the nature of the breach requires more than thirty (30) days to cure, and Contractor is using reasonable commercial efforts to cure, then such time period shall be extended accordingly.
(b) Contractor voluntarily commences bankruptcy, insolvency or similar debtor-relief proceedings, or becomes insolvent or generally does not pay its debts as they become due, or admits in writing its inability to pay its debts, or makes an assignment for the benefit of creditors;
(c) Insolvency, receivership, reorganization, bankruptcy or a similar proceeding is commenced against Contractor and such proceeding is not dismissed or stayed within a period of ninety (90) days thereafter.
Upon termination for the foregoing reasons, Contractor shall discontinue the Services and shall use reasonable commercial efforts to reduce or otherwise mitigate any expense or damage to City. City shall pay Contractor for any Services and Ad ditional Services performed up to the date of termination.
4.3 Termination by Contractor. City agrees that Contractor shall be entitled to suspend work and terminate this Agreement pursuant to written notice upon the occurrence of any of the following circumstances:
(a) Any representation or warranty made by City in this Agreement proves to have been false or misleading in any material respect as of the time made, confirmed or furnished (but, if such breach is capable of being cured, only to the extent such breach continues for thirty (30) days following receipt of a notice in writing of such breach from Contractor);
(b) City violates in any material respect any of the provisions of this Agreement, which violation remains uncured for ten (10) days following City’s receipt of written notice thereof from Contractor; provided however, that if the nature of the breach requires more than ten (10) days to cure, and City is using reasonable commercial efforts to cure, then such time period shall be extended accordingly;
(c) City voluntarily commences bankruptcy, insolvency or similar debtor -relief proceedings, or becomes insolvent or generally does not pay its debts as they become due, or admits in writing its inability to pay its debts, or makes an assignment for the benefit of creditors;
(d) Insolvency, receivership, reorganization, bankruptcy or a similar proceeding is commenced against City and such proceeding is not dismissed or stayed within a period of ninety (90) days
thereafter.
Upon the occurrence of any of the foregoing, in addition to all rights and remedies that may be available under Applicable Law, City shall, within thirty (30) days of the termination date, pay Contractor for (1) all completed Services and Additional Services and any materials ordered through the effective date of such termination, (2) demobilization costs, plus a combined markup of 15% for overhead and profit on such materials and demobilization costs, and (3) other verifiable out -of- pocket costs, including reasonable and verifiable termination fees of vendors and contractors, together with any other liabilities to which Contra ctor is subject pursuant to any agreements with vendors concerning the Services or Additional Services and that are executed by Contractor on or before the termination date.
4.4 Indemnification.
(a) Contractor shall, to the fullest extent permitted by law, full y indemnify, save harmless and defend City and its affiliates, directors, officers, shareholders, members, employees, agents and representatives from and against any and all costs, claims, and expenses incurred by City in connection with or arising from any claim by a third party for physical damage to property, or death of or bodily injury to any person, but only to the extent caused by or arising out of or related to Contractor’s negligence or willful misconduct or that of its subcontractors.
(b) City shall, to the fullest extent permitted by law, fully indemnify, save harmless and defend Contractor and its affiliates, directors, officers, shareholders, employees, agents and representatives from and against any and all costs, claims, and expenses incurred by Contractor in connection with or arising from any claim by a third party for physical damage to property, or death of or bodily injury to any person, but only to the extent caused by or arising out of or related to (i) City’s negligence or willful misconduct or that of its agents or employees or others under City’s control; (ii) City’s breach of its obligations hereunder; or (iii) any Hazardous Waste existing at the Site.
(c) If any claim is brought against a Party (the “ Indemnified Party ”), then the other Party (the “Indemnifying Party ”) shall be entitled to participate in, and, unless in the opinion of counsel for the Indemnifying Party a conflict of interest between the Parties may exist with respect to such claim, assume the defense of such claim, with counsel reasonably acceptable to the Indemnified Party. If the Indemnifying Party does not assume the defense of the Indemnified Party, or if a conflict precludes the Indemnified Party from assuming the defense, then the Indemnifying Party shall reimburse the Indemnified Party on a monthly basis for the Indemnified Party’s defense through separate counsel of the Indemnified Party’s choice. Even if the Indemnifying Party assumes the defense of the Indemnified Party with acceptable counsel, the Indemnified Party, at its sole option, may participate in the defense, at its own expense, with counsel of its own choice without relieving the Indemnifying Party of any of its obligations hereunder.
4.5 WAIVER OF CONSEQUENTIAL DAMAGES . UNLESS SPECIFICALLY ALLOWED
HEREIN, THE PARTIES AGREE THAT TO THE FULLEST EXTENT ALLOWED BY LAW, IN
NO EVENT SHALL EITHER PARTY BE RESPONSIBLE OR LIABLE, WHETHER IN
CONTRACT, TORT, WARRANTY, OR UNDER ANY STATUTE OR ON ANY OTHER BASIS,
FOR SPECIAL, INDIRECT, INCIDENTAL, MULTIPLE, PUNITIVE OR CONSEQUENTIAL
DAMAGES, OR DAMAGES FOR LOST PROFITS OR LOSS OR INTERRUPTION OF
BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THE SERVICES OR THIS AGREEMENT.
4.6 RESERVED.
4.7 Force Majeure. Except for the obligation to make payments when due, which cannot be excused by a Force Majeure Event, neither Party shall be considered in breach of this Agreement or its obligations under the applicable Services Work Order nor be liable for any delay or failure to comply with this Agreement or the applicable Services Work Order if and to the extent that such delay or failure is attributable to the existence of a Force Majeure Event. Contractor shall promptly notify City in writing within twenty (20) business day s of becoming aware of the nature of a Force Majeure Event that will delay Contractor’s performance of the Services, and the anticipated length of the delay. Any Force Majeure Event that prevents performance, or is reasonably expected to prevent performance, for more than ninety (90) days shall entitle Contractor or City to terminate this Agreement. In the event the Agreement is so terminated, City shall pay Contractor for any Services performed up to the date of termination.
5. ADDITIONAL TERMS
5.1 Governing Law. This Agreement and the rights and obligations of the Parties shall be governed by and construed in accordance with the substantive laws of the State of California without regard to conflict of law principles.
5.2 Amendments. No amendment to this Agreemen t shall be binding on the Parties unless set out in writing, expressed to vary this Agreement, and signed by authorized representatives of each of the Parties.
5.3 Confidentiality. Each Party (the “Receiving Party”) shall not use for any purpose other than performing its obligations under this Agreement or divulge, disclose, produce, publish, or permit access to, without the prior written consent of the other Party (the “ Disclosing Party ”), any Confidential Information of the Disclosing Party. “ Confidential Information” includes this Agreement, all information or materials, whether in writing, oral, digital or otherwise, prepared in connection with the Services, designs, drawings, specifications, techniques, models, data, documentation, source code, object code, diagrams, flow charts, processes, procedures, know-how, and any other trade secrets. Confidential Information does not include (i) information known to the Receiving Party prior to obtaining the same from the Disclosing Party; (ii) information in the public domain at the time of disclosure by the Receiving Party; or (iii) information obtained by the Receiving Party from a third party who did not receive same, directly or indirectly, from the Disclosing Party. The Receiving Party shall use the higher of the standard of care that the Receiving Party uses to preserve its own confidential information or a reasonable standard of care to prevent unauthorized use or disclosure of such Confidential Information. However, the Receiving Party has the right to disclose Confidential Information without the prior written consent of the Disclosing Party: (i) as required by any an administrative, regulatory or judicial body having jurisdiction over the Site or Party, or by any securities exchange on which the shares of a Party are listed, (ii) as otherwise required by law, (iii) as advisable or required in connection with any government or regulatory filings, including filings with any regulating authorities covering relevant financial markets, (iv) to its attorneys, accountants, financial advisors or other agents, in each case bound by confidentiality obligations, (v) to banks, investors and other financing sources and their advisors, in each case bound by confidentiality obligations; or (vi) in connection with an act ual or prospective merger or acquisition or similar transaction where the party receiving the Confidential Information
is bound by confidentiality obligations. If a Receiving Party believes that it will be compelled by an administrative, regulatory or judi cial body having jurisdiction over the Site or Party to disclose Confidential Information of the Disclosing Party, to the extent reasonably possible, it shall give the Disclosing Party prompt written notice so that the Disclosing Party may determine whethe r to take steps to oppose such disclosure at Disclosing Party’s discretion and sole cost.
5.4 Representations and Warranties of the Parties. Each Party to this Agreement represents and warrants to each other that:
(a) Each is duly formed and validly existing un der the laws of the State identified in the first paragraph of this Agreement and has full legal capacity and standing to pursue its corporate purposes (including the capacity to dispose of and encumber all of its assets), full and unrestricted authority to enter into this Agreement, and full power to engage in the business it presently conducts and contemplates conducting, and is and will be duly licensed or qualified and in good standing under the laws of each jurisdiction where the nature of the business transacted by it requires such licensing or qualification and where the failure to be licensed or qualified would have a material adverse effect on its ability to perform its obligations hereunder.
(b) The execution, delivery and performance by Contractor of this Agreement will not (i) violate or conflict with any covenant, agreement or understanding to which it is a party or by which it or any of its properties or assets is bound or affected, or its organizational documents or (ii) subject the System or any component part thereof to any lien other than as contemplated or permitted by this Agreement.
(c) There are no actions, suits, proceedings, patent or license infringements or investigations pending or, to each Party’s knowledge, threatened against it before any court or arbitrator that individually or in the aggregate could result in any materially adverse effect on the business, properties or assets or the condition, financial or otherwise, of Contractor or in any impairment of its ability to perform its obligations under this Agreement.
(d) Each of the individuals executing and delivering this Agreement on behalf of each Party is duly authorized to do so on behalf of the Party and this Agreement is binding upon each Party in accordance with its terms.
5.5 Additional Representations and Warranties of City. City represents and warrants to Contractor that:
(a) City has, and will have, available all the funds that are necessary from time to time to pay Contractor the Contract Price.
(b) Title to the Site is held by City.
(c) The execution, delivery and performance by City of this Agreement will not (i) violate any Governmental Requirements applicable to City, or (ii) result in any breach of, or constitute any default under, and contractual obligation of City.
(d) There is no Hazardous Waste located at the Site.
5.6 Independent Contractors. The Parties acknowledge that, save as expressly set out in this Agreement to the contrary, each Party is entering into this Agreement as an independent contractor and nothing in this Agreement shall be interpreted or applied so as to make the relationship of the Parties that of partners or anything other than independent contractors.
5.7 Notices. Any notice, request, demand or other communication required or permitted under this Agreement, shall be deemed to be properly given by the sender and received by the addressee (a) immediately if made in writing and personally delivered or emailed or (b) three days after deposit in the mail if mailed by certified or registered air mail, po stage prepaid, with a return receipt requested. Notices shall be addressed as follows:
City: Contractor:
City of Garden Grove CEG Solutions LLC
11222 Acacia Prkwy. 4040 N. Fairfax Dr. Ste. 700
Garden Grove, CA 92840 Arlington, VA 22203
Attn: Attn:
Email: Email:
5.8 Dispute Resolution. In the event that any question, dispute, difference or claim arises out of or in connection with this Agreement, including any question regarding its existence, validity, performance or termination (a “Dispute”), and within thirty (30) days of one Party notifying the other Party in writing of the existence of such Dispute that such Dispute is not resolved through good faith negotiations, including the determination of the scope or applicability of this Agreement to arbitrate, such Dispute shall be exclusively and finally determined by arbitration in Los Angeles, CA, before one arbitrator. The Parties agree that the decision from the arbitration shall be final and binding. The arbitration shall be administered by AAA pursuant to its Construction Industry Arbitration Rules. Judgment on the award may be entered in any court having jurisdiction over a Party.
5.9 Construction.
(a) Survival. Any rights and obligations of the Parties th at arise prior to termination of this Agreement shall survive termination of this Agreement and continue to be governed by its provisions.
(b) Successors and Assigns. This Agreement shall be binding on the Parties and their respective permitted successors, heirs and assigns.
(c) Amendment and Modification. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each Party hereto.
(d) Headings. The headings in this Agreement are for reference only and shall not affect t he interpretation of this Agreement.
(e) Counterparts. This Agreement may be executed in counterparts, which shall together constitute one and the same agreement. Facsimile or portable document format (“PDF”) signatures shall have the same effect as original signatures. Each Party consents to the admission in evidence of a facsimile, photocopy or PDF of this Agreement in any Dispute proceedings between the Parties.
(f) Entire Agreement . This Agreement, together with the Services Work Order s and the Exhibits, constitutes the sole and entire agreement of the Parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
(g) No Agency. This Agreement is not intended to create any association, joint venture, agency relationship or partnership between the Parties or to impose any such obligation or liability upon either Party. Neither Party shall have any right, power or authority to enter into any agreement or undertaking for, or act as or be an agent or representative of, or otherwise bind, the other Party except as expressly allowed by this Agreement.
(h) Assignment. Neither Party shall have the right to assign any of its rights, duties, or obligations under this Agreement without the prior written consent of the other Party, which consent may not be unreasonably withheld or delayed. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the assigning or delegating Party of any of its obligations hereunder.
(i) No Waiver. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. No waiver by any Party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
(j) Further Assurances. Each of the Parties shall use commercially reasonable efforts to their commercially reasonable efforts to, from time to time at the request of the other Party, without any additional consideration, furnish the other Party such further information or assurances, execute and deliver such additional documents, instruments and co nveyances, and take such other actions and do such other things, as may be necessary or desirable in the opinion of counsel to the requesting Party to carry out the provisions of this Agreement and each Services Work Order and give effect to the transactions contemplated hereby and thereby.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Parties have executed this Operation and Maintenance Agreement as of the date first above below.
CITY OF GARDEN GROVE CEG SOLUTIONS LLC
CA License No.: 1022675
By: By:
Name: Lisa L. Kim Name:
Title: City Manager Title:
Date: Date:
Attest:
City Clerk
Approved as to form:
City Attorney
EXHIBIT A
SCHEDULE 1 - SERVICES
WORK ORDER
Location of Site: 11201 Acacia Pkwy, Garden Grove, CA 92840 Description of System: Electricity grid-connected roof-mounted and parking canopy-mounted photovoltaic system with a total rated approximate capacity of 320 kW-DC-STC.. The Battery Energy Storage System will be rated with approximate capacity of 415 kWh and power of 84kW.
Scope of Work:
1. System Monitoring & Response: Contractor shall provide all maintenance and services work as follows:
a. System Alarms / Notification: Contractor shall respond to alarms from the Data Acquisition System (“DAS”), notifications sent by City, or field personnel (“Alarms”) as follows:
Table 1
Response
Level
General
Description
Remote
Response
(Business
Days)
Field Response
(Business
Days)
1 Emergency (Immediate Life Safety issues)
½ Day
1 Day
2 Critical System Production Issues (Inverter Loss or
Weather Adjusted Performance <80%)
1 Day
3 Days
3 Communications or DAS Issue (not classified as Tier 1 or 2)
3 Day
3 Days
4 Non-Critical Low Production: (80% < Weather Adjusted
Performance <90%)
3 Day
10 Days
5 General Issue, not falling into the categories above
3 Days
As needed
b. Pre-Authorized Work Limits: In the event that Additional Services are not covered under a warranty, City authorizes Contractor to perform, at its discretion, up to $1,500 of Additional
Services as may be required to respond to Alarms as described in Table 2 above.
c. Annual System Production Report : Each year, within thirty (30) days following the anniversary of the Commercial Operation Date, Contractor shall provide, via the DAS, City with an annual energy production report showing the actual System performance.
2. Preventative Maintenance: Contractor shall provide service as follows:
Table 2
Preventative Maintenance Service Description
Service
Frequency
General Inspections:
· Visual inspection for signs of damage, overall wear and tear, module breakage, loose conduit, broken straps, etc.
· Sample check torque marks and tighten loose connections
1 per year
Electrical Inspections and Maintenance:
· Perform manufacturer’s preventative maintenance on electrical equipment
· Check integrity of weather resistance (seals, hubs and weather stripping)
· Check electrical equipment housing for signs of corrosion
· Perform infrared scans, as needed
1 per year
Inverter Inspections and Maintenance:
· Perform manufacturer’s preventative maintenance
· Check integrity of weather resistance (seals, hubs and weather stripping)
· Check inverter housing for signs of corrosion
· Clean inverter air vents and heat sinks clean filters
· Perform infrared scans, as needed
1 per year
Monitoring Equipment Inspection:
· Clean pyranometer(s)
· Check integrity of cell temperature sensor · Check other weather station components
· Check that the System meter is reading
1 per year
Array Washing:
· Includes normally expected soiling conditions. Heavy cleaning, such as excessive soiling, debris removal, bird droppings and soot, not to exceed 10% of total array.
2 per year
3. PREVENTATIVE MAINTENANCE REPORTING : Within two (2) weeks following each visit, Contractor shall provide City with a completed maintenance checklist, list of issues discovered, resolution, and accompanying photos as appropriate.
4. MODULE REPLACEMENT: Contractor shall replace damaged PV modules with attic stock as needed (20).
5. MONITORING: Contractor shall maintain an active DAS subscription for the entire term of this agreement.
SCHEDULE 2 – SCHEDULE & PAYMENT
Commencement Date: Owner will notify contractor of their acceptance of substantial completion of the system and will designate the commencement of the service period.
Expiration Date: The term of the service contract is 5 years, with three 5-year renewal options, for a total potential contract period of 20 years. The parties agree there will be an annual cost adjustment of 3 percent year-over-year. At each renewal (years 6, 11, 16) the parties will update “Schedule 2” to reflect current hourly pricing for additional work.
Annual Service Price: The annual price for all services included in this contract shall be $34,000 in year 1 and escalate at 3% each year as referenced in the table below:
YEAR PAYMENT
1 $34,000
2 $35,020
3 $36,071
4 $37,153
5 $38,268
Additional Service Rates: Any additional services beyond the terms of this agreement can be included upon written direction from the owner. The rates will be tracked on a T&M Basis according to the following rate schedule for year 1 of the agreement (the rate schedule shall escalate at 3 percent annually):
Labor rate for out-of-scope maintenance and repair $228 Weekdays overtime, weekend labor rate for out-of-scope
maintenance and repair
Bill Rate x 1.5
Double-time for holidays labor rate for out-of-scope
maintenance and repair
Bill Rate x 2
Engineering / Asset Manager $264
Project Manager / PV Operator / Site Manager $240
Site Specialist $180
Assistant Electrician / Laborer $168
EVP $330
SVP $318
VP – Asset Management $318
VP – O&M $318
Controller / Treasurer $228
NERC Compliance - Corporate $222
Environmental - Corporate $210
Health and Safety - Corporate $210
Human Resource Specialist $180
Assoc Asset Manager $156
Accounting /Admin $138
Treasurer / AP Clerk $114
IT Network Engineer $210
IT Helpdesk $180
IT Technology Executive $270
Mobilization (per event, per person), more than 3 hour
roundtrip
$1250
Excludes any ticketed travel (such as airfare)
or rental vehicles.
Mobilization, less than 3 hour roundtrip
- Drive time
- Mileage
- Per diem
$150/hr.
IRS rate / mile
$75 / day
Subcontractor Cost + 15%
Material and Shipping Cost + 15%
Rental Equipment Cost + 15%
Lodging, Airfare, and car rental Cost + 15%
Non-Standard Wage Rate (Prevailing wage, Service Act,
IRA, etc.)
To be determined on a case-by-case basis.
OVERTIME AND HOLIDAY WORK WILL BE PERFORMED ONLY BY MUTUAL AGREEMENT BETWEEN OPERATOR AND OWNER. A
MINIMUM OF TWO HOURS WILL BE CHARGED
1. ASSUMPTIONS
A. CITY WILL PROVIDE SITE ACCESS AND A SAFE WORKING ENVIRONMENT.
C. CITY WILL PROVIDE FACILITY CONTACT TO PROVIDE REAL TIME INFORMATION ABOUT SITE CONDITIONS (POWER OUTAGE , ACTIVE CONSTRUCTION , ETC.).
D. CITY IS RESPONSIBLE FOR CLOSING THE PARKING AREA FOR THE WASHING AND MAINTENANCE
ACTIVITIES IF APPLICABLE
G. ELEVATED SYSTEMS HAVE OSHA COMPLIANT FALL PROTECTION AND/OR FALL ARREST
SYSTEMS INSTALLED.
I. ARC FLASH STICKERS ARE PRESENT ON ALL APPLICABLE EQUIPMENT AS REQUIRED.
J. FIELD WORK WILL BE PERFORMED DURING LOCAL BUSINESS HOURS.
K. SYSTEM SAFETY ISSUES ARE CO RRECTED AS ADVISED BY INSPECTION RESULTS.
2. EXCLUSIONS
A. HARDWARE UPGRADES BEYOND THE BASE SYSTEM OR REFURBISHMENTS.
B. INSTALLATION REFURBISHMENTS TO BRING EQUIPMENT IN COMPLIANCE WITH NEW CODE OR REVISED MANUFACTURER REQUIREMENTS.
C. COSMETIC CORROSION REPAIR.
D. ADDITIONAL WASHING DUE TO HEAVY SOILING, SUCH AS REMOVAL OF ENDEMIC BIRD DROPPINGS , TARS, PAINTS, HEAVY SOOT, OR WILDFIRE ASH.