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EXHIBIT A
DIR Project Registration # _ _ _ _ _ _
ENGIE Services Project #: _ _ _ _ _ -_ _ _
ENGIE Services Contract # R _______
OPERATION & MAINTENANCE AGREEMENT
DATED 22 March 2022
This OPERATION & MAINTENANCE AGREEMENT (this “Agreement”) is made and entered into as of May 1, 2022 by and between ENGIE Services U.S. Inc., a Delaware corporation, with California State Contractor’s License Number 995037 (“ENGIE Services U.S.”), and The City of Gonzales (“Customer”) and together with ENGIE Services U.S. the “Parties” and each of Customer and ENGIE Services U.S. a “Party”).
RECITALS
WHEREAS, Chevron Energy Solutions Company (as predecessor-in-interest to OpTerra Energy Services, Inc. and ENGIE Services U.S.) and Customer entered into that certain Energy Services Contract dated as of December 1, 2011 (“Phase 1 Contract”), pursuant to which ENGIE Services U.S, engineered, installed, monitored and maintained certain Generating Facilities. (“Phase 1 Generating Facilities”); and WHEREAS, OpTerra Energy Services, Inc. (as predecessor-in-interest to ENGIE Services U.S.) and Customer entered into that certain Energy Services Contract dated as of March 7, 2016 (“Phase 2 Contract”), pursuant to which ENGIE Services U.S, designed, installed, monitored and maintained certain additional Generating Facilities (“Phase 2 Generating Facilities”). The Phase 1 Generating Facilities and the Phase 2 Generating Facilities are collectively referred to herein as the “Generating Facilities”; and
WHEREAS, Customer desires to supersede the Phase 1 Contract and the Phase 2 Contract and combine the monitoring and maintenance services for the Generating Facilities under one contract; and WHEREAS, ENGIE Services U.S. is a full-service energy services company with the technical capabilities to provide services to Customer including, but not limited to, maintenance of Generating Facilities (as defined below); and WHEREAS, the Parties agree that the Phase 1 Contract and Phase 2 Contract are hereby superseded by this Operations & Maintenance Agreement and ENGIE Services U.S. has agreed to monitor and maintain the Generating Facilities on the terms and subject to the conditions of this Agreement; NOW, THEREFORE, Customer and ENGIE Services U.S. hereby agree as follows:
ARTICLE 1. DEFINITIONS
For purposes of this Agreement and its Attachments, defined terms will have the following meanings:
“Abnormally Severe Weather Conditions” means typhoons, hurricanes, tornadoes, lightning storms and other climatic and weather conditions that are abnormally severe for the period of time when, and the area where, such storms or conditions occur, in each case occurring at a property, the access roads to a property, or any other location where O&M Services are then being performed. For the avoidance of doubt, the term “Abnormally Severe Weather Conditions” specifically includes rain, snow or sleet in excess of one hundred fifty percent (150%) of the median level over the preceding ten (10) year period for the local geographic area and time of year in which such rain, snow or sleet accumulates.
“Agreement” is defined in the Preamble, and includes all Attachments hereto (all of which are incorporated herein), as well as all amendments, restatements, supplements and other modifications hereto. “Annual O&M Fee” means a fee payable annually in advance by Customer to ENGIE Services U.S., in consideration of the provision of O&M Services. The Annual O&M Fee for the first O&M Period will be as stated in the below payment Schedule.
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Payment Schedule:
Year Site kW DC Electrical
Services
Panel
Washing
PV
Monitoring
Services
Total
Police Station 55.0 $ 1,951 $ 790 $ 536 $ 3,278
Swimming Pool 16.0 $ 568 $ 222 $ 536 $ 1,325
2022 Well #3 Corporation
Yard 53.0 $ 1,880 $ 721 $ 536 $ 3,137
Y1 Well #6 78.0 $ 5,534 $ 1,054 $ 536 $ 7,124
Constellation Winery
(Leased Premises,
Adjacent to Well#4) 252.0 $ 4,951 $ 5,052 $ 536 $ 10,539 Wastewater Treatment
Plant 210.0 $ 6,053 $ 7,180 $ 536 $ 13,769
Total 664.0 $ 20,937 $ 15,019 $ 3,216 $ 39,172
Police Station 210.0 $ 2,010 $ 814 $ 552 $ 3,376
Swimming Pool 252.0 $ 585 $ 229 $ 552 $ 1,365
2023 Well #3 Corporation
Yard 55.0 $ 1,937 $ 743 $ 552 $ 3,231
Y2 Well #6 16.0 $ 5,700 $ 1,085 $ 552 $ 7,338
Constellation Winery
(Leased Premises,
Adjacent to Well#4) 53.0 $ 5,100 $ 5,204 $ 552 $ 10,856 Wastewater Treatment
Plant 78.0 $ 6,234 $ 7,395 $ 552 $ 14,182
Total 664.0 $ 21,565 $ 15,470 $ 3,312 $ 40,347
Police Station 210.0 $ 2,070 $ 838 $ 569 $ 3,477
Swimming Pool 252.0 $ 602 $ 235 $ 569 $ 1,406
2024
Well #3 Corporation
Yard 55.0 $ 1,995 $ 765 $ 569 $ 3,328
Y3 Well #6 16.0 $ 5,871 $ 1,118 $ 569 $ 7,558
Constellation Winery
(Leased Premises,
Adjacent to Well#4) 53.0 $ 5,252 $ 5,360 $ 569 $ 11,181 Wastewater Treatment
Plant 78.0 $ 6,421 $ 7,617 $ 569 $ 14,607
Total 664.0 $ 22,212 $ 15,934 $ 3,412 $ 41,558
Police Station 210.0 $ 2,132 $ 864 $ 586 $ 3,581
Swimming Pool 252.0 $ 620 $ 242 $ 586 $ 1,448
2025 Well #3 Corporation
Yard 55.0 $ 2,055 $ 788 $ 586 $ 3,428
Y4 Well #6 16.0 $ 6,048 $ 1,151 $ 586 $ 7,785
Constellation Winery
(Leased Premises,
Adjacent to Well#4) 53.0 $ 5,410 $ 5,521 $ 586 $ 11,517 Operation & Maintenance Agreement
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Wastewater Treatment
Plant 78.0 $ 6,614 $ 7,845 $ 586 $ 15,045
Total 664.0 $ 22,879 $ 16,412 $ 3,514 $ 42,805
Police Station 210.0 $ 2,196 $ 890 $ 603 $ 3,689
Swimming Pool 252.0 $ 639 $ 250 $ 603 $ 1,492
2026
Well #3 Corporation
Yard 55.0 $ 2,116 $ 811 $ 603 $ 3,531
Y5 Well #6 16.0 $ 6,229 $ 1,186 $ 603 $ 8,018
Constellation Winery
(Leased Premises,
Adjacent to Well#4) 53.0 $ 5,572 $ 5,686 $ 603 $ 11,862 Wastewater Treatment
Plant 78.0 $ 6,813 $ 8,081 $ 603 $ 15,497
Total 664.0 $ 23,565 $ 16,904 $ 3,620 $ 44,089
“Applicable Law” means any statute, law, treaty, building code, rule, regulation, ordinance, code, enactment, injunction, writ, order, decision, authorization, judgment, decree, protocol, procedure or other legal or regulatory determination or restriction by a court or Governmental Authority of competent jurisdiction, as may be in effect at the time the O&M Services are undertaken.
“Applicable Permits” means all permits, approvals, inspections and certifications required to be issued by any Governmental Authority in connection with the O&M Services. “Arbitration Rules” is defined in ARTICLE 9.
“Customer” is defined in the Preamble.
“Dispute” is defined in ARTICLE 9.
“ENGIE Services U.S.” is defined in the Preamble.
“Force Majeure” means acts or events that are beyond the reasonable control of the affected Party and not caused by the negligence or fault of the Party affecting, including but not limited to any of the following: (i) acts of God; (ii) acts of the public enemy or terrorist acts; (iii) relocation or construction of transmission facilities or the shutdown of such facilities for the purpose of necessary repairs; (iv) work by local utility; (v) flood, earthquake, tornado, storm, fire, explosions, lightning, landslide or similar cataclysmic occurrence; (vi) sabotage, vandalism, riots or civil disobedience; (vii) labor disputes or strikes; (viii) labor or material shortages, delay in manufacturing and deliveries of equipment and supply chain disruptions (if such delay is caused by an event that would otherwise constitute Force Majeure); (ix) restraint by court order or public authority (whether valid or invalid); (x) inability to obtain or keep in force any Applicable Permit; (xi) epidemic or pandemic; (xii) Abnormally Severe Weather Conditions; (xiii) an annual level of direct beam solar resource availability that is less than or equal to 90% of historical averages as measured by long-term weather data (minimum 5 years) collected at the applicable Project Location and/or other reliable calibrated and appropriate weather station representative of such Project Location; (xiv) requirement by utility that any Generating Facility discontinue operation for any reason; (xv) appropriation or diversion of electricity by sale or order of any Governmental Authority; (xvi) any other action by any Governmental Authority which prevents or inhibits the Parties from carrying out their respective obligations under this Agreement (including an unstayed order of a court or administrative agency having the effect of subjecting the sales of energy output to federal or state regulation of prices and/or services); or (xvii) any utility power outage at any Project Location. “Generating Facility” means each photovoltaic, solar powered generating facility located at a Project Location, and includes all associated photovoltaic panels, mounting assemblies, inverters, converters, metering, lighting fixtures, transformers, ballasts, disconnects, combiners, switches, wires and other equipment that may be necessary to connect such solar power plant to the applicable utility meter. “Governmental Authority” means any federal, state, regional, town, county, city, municipal or local government agency, department or regulatory body having jurisdiction under Applicable Law over the matter in question. “Hazardous Substances” means (i) any hazardous, toxic, or dangerous wastes, substances, chemicals, constituents, contaminants, pollutants, and materials and any other carcinogenic, liquids, corrosive, ignitable, radioactive, reactive, toxic, or otherwise hazardous substances or mixtures (whether solids, liquids, gases) now or at any time subject to regulation, control, remediation, or otherwise addressed under Applicable Laws; (ii) any “hazardous substance” as defined by the Resource, Conservation and Recovery Act of 1976 (42 U.S.C. §6901 et Operation & Maintenance Agreement
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seq.), as amended, and regulations promulgated thereunder; (iii) any “hazardous, toxic or dangerous waste, substance or material” specifically defined as such in 42 U.S.C. §9601 et seq.), as amended and regulations promulgated thereunder; and (iv) any hazardous, toxic or dangerous waste, substance, or material as defined in any so-called “superfund” or “superlien” law.
“Interest” means interest calculated at the lesser of (i) the prime rate plus two percent (2%) or (ii) the maximum rate permitted by Applicable Law. The “prime rate” will be “Prime Rate” of interest per annum for domestic banks as published in The Wall Street Journal in the “Money Rates” section. “O&M Commencement Date” means the first day of the month immediately following the later of (i) the full execution of this Agreement, and (ii) ENGIE Services U.S.’s receipt of the Annual O&M Fee for the first O&M Period. “O&M Period” means each one-year period following the O&M Commencement Date. “O&M Services” means the maintenance services to be performed by ENGIE Services U.S. in accordance with the terms and subject to the conditions of this Agreement.
“Party” and “Parties” are defined in the Preamble.
“Project Location” means that area or areas where the Generating Facilities are installed, as set forth in Attachment A.
“Term” is defined in Section 2.02.
ARTICLE 2. ANNUAL O&M FEE; TERM
Section 2.01 The Annual O&M Fee for the first O&M Period will be invoiced by ENGIE Services U.S. to Customer in a lump sum upon the execution of this Agreement. All subsequent Annual O&M Fees will be invoiced by ENGIE Services U.S. on the first day of the corresponding O&M Period. The Customer, or its designee, will pay ENGIE Services U.S. the Annual O&M Fee, without any retention amount withheld, within thirty (30) calendar days after its receipt of the corresponding invoice. Unless Customer gives ENGIE Services U.S. prior written notice of its intent to terminate the O&M Services, any failure to timely pay the Annual O&M Fee in accordance with this Agreement will be a material default by Customer hereunder, and ENGIE Services U.S., in addition to any other legal, contractual and equitable remedies available to it, will have no obligation thereafter to provide O&M Services. Any amount not paid when due will, from and after the due date, bear Interest. Accrued and unpaid Interest on past due amounts (including Interest on past due Interest) will be due and payable upon demand. The Annual O&M Fee is not refundable for any reason.
Section 2.02 So long as Customer pays to ENGIE Services U.S. the Annual O&M Fee, ENGIE Services U.S. will provide the O&M Services with respect to the Generating Facilities at the Project Locations, all as described in this Agreement, for an initial term of up to five (5) years (the “Initial Term”) from the O&M Commencement Date on an annualized basis. Customer may renew this Agreement for an initial five (5) year term (“Renewal Term”) by providing ENGIE Services U.S. written notice at least ninety (90) days in advance fo the expiration of the Initial Term. The Annual O&M Fee for the Renewal Term will be negotiated by the Parties in good faith and will be based on then-current prevailing market wages and conditions.
Section 2.03 If (i) Customer notifies ENGIE Services U.S. in writing of its intent to terminate the O&M Services, or (ii) Customer is in default of any of its obligations under this Agreement (including its obligation to pay the Annual O&M Fee), the obligation of ENGIE Services U.S. to provide the O&M Services will also be terminated.
ARTICLE 3. MAINTENANCE SERVICES
Section 3.01 ENGIE Services U.S. will provide the following O&M Services during the term as stated in attachment A.:
Section 3.02 Repair O&M Services. If a Generating Facility is damaged and requires safe-off, repair, demolition and/or reconstruction, or otherwise requires repair outside of warranty, Customer must contact the ENGIE Services U.S. PV Operations & Maintenance Manager. In the event of damage, any component of the Generating Facility installed by ENGIE Services U.S. can be repaired or reconstructed by ENGIE Services U.S. at Customer’s request. Customer must submit a request for quotation to the ENGIE Services U.S. PV Operations & Maintenance Manager. ENGIE Services U.S. will inspect the damage and provide a written quotation and complete scope of work to Customer to restore the Generating Facility to normal operational condition. Before proceeding with repairs, ENGIE Services U.S. and Customer must execute a work order, on ENGIE Services U.S.’s form, for the agreed scope of work and quotation amount. Repair work is done on a time and materials basis. Standard Business Hours are M-F, 7am to 5pm. Non-business Hours & Saturdays Equals 1.5x Rates. Sundays & Holidays Equals 2.0x Rates.
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Labor Category Straight
Time
Hourly Rate – PV Electrical Journeyman Technician1 $/hr. County Labor Rate
Hourly Rate – PV Electrical Apprentice Technician1 $/hr. County Labor Rate
Hourly Rate – Engineering2 $/hr. $ 170.00
Hourly Rate – Administrative2 $/hr. $ 65.00
Mileage $ IRS Rate
Material mark-up % % 15.00
Lift rental fee $
Current
Market Price
1Trade Hourly rate will be adjusted based on the current year of the local prevailing wage determination plus Burden, requirement for either travel or subsistence and lodging, and markup for services being requested.
2Escalated according to an inflation rate to the year in which service will occur .
Section 3.03 Upon completion of any maintenance or repair work, ENGIE Services U.S. will update service logs detailing the work performed, location and any notes relevant to safe and efficient operations. These service logs will be compiled and submitted to Customer on a semi-annual basis.
ARTICLE 4. O&M SERVICES AND EQUIPMENT TO BE COVERED BY CUSTOMER Section 4.01 ENGIE Services U.S.’s obligations under this Agreement are expressly conditioned upon Customer’s payment of the Annual O&M Fee and providing and being responsible for the following, without cost to ENGIE Services U.S.:
(i) Making the Generating Facilities described herein available to ENGIE Services U.S. as of the O&M Commencement Date.
(ii) Operating and maintaining security systems associated with the Generating Facilities. (iii) Maintaining all landscaping in and around Generating Facilities including tree trimming. (iv) Allowing ENGIE Services U.S. and its personnel access as necessary to the Generating Facilities, and any related areas that may be reasonably necessary for performance of the O&M Services, including reasonable work, parking, and equipment staging areas. (v) Allowing ENGIE Services U.S. and its personnel to access electrical power and other utilities then existing at the Generating Facilities as necessary for ENGIE Services U.S. to satisfy its obligations under this Agreement.
(vi) Remediating, pursuant to Applicable Law, any known Hazardous Substances encountered by ENGIE Services U.S. during the performance of the O&M Services which Hazardous Substances were not deposited by ENGIE Services U.S., including any backfill with clean soil as may be reasonably required.
(vii) Insuring the Generating Facilities against loss due to acts of God and the public enemy; flood, earthquake, tornado, storm, fire; civil disobedience, sabotage, and vandalism.
Section 4.02 ENGIE Services U.S. will have no obligation to provide the O&M Services to the extent such provision of O&M Services is materially adversely affected by Customer’s failure to satisfy the conditions set forth in this Agreement.
ARTICLE 5. SUBCONTRACTORS
Section 5.01 Authority to Subcontract. ENGIE Services U.S. may delegate its duties and performance under this Agreement, and has the right to enter into agreements with any subcontractors and other service or material providers as ENGIE Services U.S. may select in its discretion to perform the O&M Services. ENGIE Services U.S. will not be required to enter into any subcontracts with parties whom ENGIE Services U.S. has not selected or subcontractors whom ENGIE Services U.S. has objection to using.
Section 5.02 Prevailing Wages. To the extent required by California Labor Code §1771 or other Applicable Law, all employees of ENGIE Services U.S. and ENGIE Services U.S.’s subcontractors performing O&M Services at the Project Location will be paid the per diem prevailing wages for the employee’s job classification in the locality in which the Operation & Maintenance Agreement
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O&M Services is performed. In accordance with California Labor Code §§1773 and 1773.2, Customer will obtain from the Director of Industrial Relations the general prevailing rate of per diem wages and the general prevailing rate for holiday and overtime work, in the locality in which the O&M Services is to be performed, for each craft, classification or type of worker needed to execute the O&M Services at the Project Location, and will cause copies of such determinations to be kept on file at its principal office and posted at each Project Location. Customer will promptly notify ENGIE Services U.S. of any changes to any such prevailing wage determination.
ARTICLE 6. WARRANTY
EXCEPT FOR THE WARRANTIES PROVIDED IN THIS ARTICLE 6, ENGIE SERVICES U.S. MAKES NO WARRANTIES
IN CONNECTION WITH THE SERVICES PROVIDED UNDER THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED
IN LAW, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY IMPLIED WARRANTIES AGAINST INTELLECTUAL PROPERTY INFRINGEMENT. CUSTOMER WILL HAVE NO REMEDIES AGAINST EITHER ENGIE SERVICES U.S. OR ANY ENGIE SERVICES U.S.
SUBCONTRACTOR OR VENDOR FOR ANY DEFECTIVE MATERIALS OR EQUIPMENT INSTALLED, EXCEPT FOR
THE REPAIR OR REPLACEMENT OF SUCH MATERIALS OR EQUIPMENT IN ACCORDANCE WITH THE WARRANTIES INDICATED BELOW. SPECIFICALLY, NEITHER ENGIE SERVICES U.S., NOR ENGIE SERVICES U.S.’S SUBCONTRACTORS OR VENDORS, WILL BE LIABLE TO CUSTOMER FOR LOSS OF PROFITS OR FOR ANY
SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY.
Section 6.01 ENGIE Services U.S. warrants to Customer that material and equipment furnished under this Agreement will be of good quality and new, unless otherwise specifically required or permitted by this Agreement.
ENGIE Services U.S. further warrants that its workmanship provided hereunder, including its subcontractors’ workmanship, will be free of material defects for a period of one (1) year from the date of installation (“ENGIE Services U.S. Warranty”).
Section 6.02 Equipment and material warranties that exceed the ENGIE Services U.S. Warranty period will be provided directly by the equipment and/or material manufacturers and such warranties will be assigned directly to Customer, after the one (1) year period. During the ENGIE Services U.S. Warranty period, ENGIE Services U.S. will be Customer’s agent in working with the equipment and material manufacturers in resolving any equipment or material warranty issues. If any material defects are discovered within the ENGIE Services U.S. Warranty period, ENGIE Services U.S., or ENGIE Services U.S.’s subcontractors, will correct its defects, and/or ENGIE Services U.S. will work with the equipment or material manufacturer as Customer’s agent to facilitate the manufacturer’s correction of the equipment or material defect. Such warranty services will be performed in a timely manner and at the reasonable convenience of Customer. If a warranty issue arises on any equipment or material installed after the ENGIE Services U.S. Warranty period, and the equipment or material has a warranty period that exceeds one (1) year, Customer will contact the manufacturer directly to resolve such warranty issues and Customer acknowledges that the manufacturer will have sole responsibility for such issues.
Section 6.03 The warranties in this ARTICLE 6 expressly exclude any remedy for damage or defect caused by improper or inadequate maintenance of the installed equipment by service providers other than ENGIE Services U.S. or its subcontractors, corrosion, erosion, deterioration, abuse, modifications or repairs not performed by an authorized ENGIE Services U.S. subcontractor, improper use or operation, or normal wear and tear under normal usage. ENGIE Services U.S. will not be responsible for the cost of correcting a breach of warranty or defect to the extent that the manufacturer of the equipment that is the subject of a warranty hereunder does not honor its equipment warranty as a result of its termination of operations, insolvency, liquidation, bankruptcy or similar occurrence. Unless otherwise specified, all warranties hereunder, including without limitation those for defects, whether latent or patent, in design, engineering, or construction, will terminate one (1) year from the date of installation; and thereafter, ENGIE Services U.S. will have no liability for breach of any warranty or for any latent or patent defect of any kind pursuant to California Code of Civil Procedure §§337.15 and 338.
ARTICLE 7. LIMITATION OF LIABILITY; INSURANCE
Section 7.01 Waiver of Consequential Damages and Limitation of Liability. The liability of a defaulting Party will be limited to direct, actual damages. Neither Party will be liable to the other Party for any special, indirect, incidental or consequential damages whatsoever, whether in contract, tort (including negligence) or strict liability, including, but not limited to, operational losses in the performance of business such as lost profits or revenues or any increase in operating expense. Additionally, each Party waives any claims for negligence against the other Party to the greatest extent permitted by Applicable Law.
Section 7.02 ENGIE Services U.S. Insurance. ENGIE Services U.S. will maintain, or cause to be maintained, for the duration of this Agreement, the insurance coverage outlined in (a) through (f) below, and all such other insurance as required by Applicable Law. Evidence of coverage will be provided to Customer via an insurance certificate.
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(a) Workers’ Compensation/Employers Liability for states in which ENGIE Services U.S. is not a qualified selfinsured. Limits as follows:
* Workers’ Compensation: Statutory
* Employers Liability: Bodily Injury by accident $1,000,000 each accident Bodily Injury by disease $1,000,000 each employee
Bodily Injury by disease $1,000,000 policy limit
(b) Commercial General Liability insurance with limits of:
* $2,000,000 each occurrence for Bodily Injury and Property Damage * $4,000,000 General Aggregate - other than Products/Completed Operations * $2,000,000 Products/Completed Operations Aggregate
* $2,000,000 Personal & Advertising Injury
* $ 100,000 Damage to premises rented to ENGIE Services U.S.
Coverage to be written on an occurrence form. Coverage to be at least as broad as ISO form CG 0001 (04/13) or its equivalent forms, without endorsements that limit the policy terms with respect to: (1) provisions for severability of interest or (2) explosion, collapse, underground hazard. (c) Auto Liability insurance for owned, hired and non-owned vehicles with limits of $1,000,000 per accident.
Coverage to be written on an occurrence form.
(d) Professional Liability insurance with limits of:
* $1,000,000 per occurrence
* $1,000,000 aggregate
Coverage to be written on a claims-made form.
(e) Umbrella/Excess Liability Insurance. Limits as follows:
* $1,000,000 each occurrence
* $1,000,000 aggregate
Coverage terms and limits to apply excess of the per occurrence and/or aggregate limits provided for Commercial General Liability and Professional Liability written on a claims made form. Coverage terms and limits also to apply in excess of those required for Employers Liability and Auto Liability written on an occurrence form.
(f) Policy Endorsements.
* The insurance provided for Workers’ Compensation and Employers’ Liability above will contain waivers of subrogation rights against Customer. * The insurance provided for Commercial General Liability and Auto Liability above will:
(i) include Customer as an additional insured with respect to O&M Services performed under this Agreement, and
(ii) provide that the insurance is primary coverage with respect to all insureds.
ARTICLE 8. CONDITIONS BEYOND CONTROL OF THE PARTIES
If any Party is delayed in, or prevented from, performing or carrying out its obligations under this Agreement by reason of any Force Majeure, such circumstance will not constitute a default, and such Party will be excused from performance hereunder and will not be liable to the other Party for or on account of any loss, damage, injury or expense resulting from, or arising out of, such delay or prevention. Notwithstanding the foregoing, no Party will be excused from any payment obligations under this Agreement as a result of any Force Majeure.
ARTICLE 9. DISPUTE RESOLUTION; APPLICABLE LAW; VENUE; SEVERABILITY If a dispute arises out of or relates to this Agreement, or the services contemplated by this Agreement (a “Dispute”), either Party may initiate the dispute resolution process set forth in this ARTICLE 9 by giving notice to the other Party.
Senior executives for the Parties will meet, within thirty (30) calendar days after notice of the Dispute, in an attempt to resolve the Dispute and any other identified disputes or any unresolved issues that may lead to a dispute. If the senior executives of are unable to resolve a Dispute or if a senior management conference is not held within the time provided herein, either Party may submit the Dispute to mediation.
If the Dispute is not settled by senior management conference, the Parties will endeavor to settle the Dispute by mediation under the Commercial Mediation Procedures of the American Arbitration Association. Mediation is a condition Operation & Maintenance Agreement
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precedent to arbitration or the institution of legal or equitable proceedings by either Party. Once one Party files a request for mediation with the other Party and with the American Arbitration Association, the Parties agree to conclude the mediation within sixty (60) calendar days after filing the request. Either Party may terminate the mediation at any time after the first session, but the decision to terminate must be delivered in person by the Party’s representative to the other Party’s representative and the mediator.
If the Dispute is not resolved by mediation within sixty (60) calendar days after the date of filing of the request for mediation, then the exclusive means to resolve the Dispute is final and binding arbitration. Either Party may initiate arbitration proceedings by notice to the other Party and the American Arbitration Association. The following provisions apply to all arbitration proceedings pursuant to this Article: (i) The place of arbitration will be the American Arbitration Association office closest to where the O&M Services were performed; (ii) one arbitrator will conduct the arbitral proceedings in accordance with the Commercial Arbitration Rules and Mediation Procedures (Excluding the Procedures for Large, Complex Commercial Disputes) of the American Arbitration Association currently in effect (“Arbitration Rules”) (to the extent of any conflicts between the Arbitration Rules and the provisions of this Agreement, the provisions of this Agreement prevail); (iii) the Parties will submit true copies of all documents considered relevant with their respective statement of claim or defense, and any counterclaim or reply (in the discretion of the arbitrator, the production of additional documents that are relevant and material to the determination of the Dispute may be required); (iv) the arbitrator does not have the power to award, and may not award, any punitive, indirect or consequential damages (however denominated); all arbitration fees and costs are to be shared equally by the parties, regardless of which Party prevails, and each Party will pay its own costs of legal representation and witness expenses; (v) the award must be in the form of a reasoned award; (vi) the Dispute will be resolved as quickly as possible, and the arbitrator will endeavor to issue the arbitration award within six (6) months after the date on which the arbitration proceedings were commenced; and (vii) the award will be final and binding and subject to confirmation and enforcement proceedings in any court of competent jurisdiction.
This Agreement is governed by and must be interpreted under the laws of the State where the O&M Services are performed, without regard to the jurisdiction’s choice of law rules.
If any term of this Agreement is declared by a court to be illegal, invalid or unenforceable, the legality, validity and enforceability of the other terms of this Agreement will not be affected or impaired thereby, and the rights and obligations of the Parties will be enforced as if the illegal, invalid or unenforceable term were revised to the minimum extent necessary to make such term legal, valid and enforceable.
ARTICLE 10. NOTICE
Any notice required or permitted hereunder will be deemed sufficient if given in writing and delivered personally or sent by registered or certified mail, return receipt requested, postage prepaid, or delivered to a nationally recognized express mail service, charges prepaid, receipt obtained, to the address shown below or to such other persons or addresses as are specified by similar notice.
TO ENGIE SERVICES U.S.: ENGIE Services U.S.
500 12th St., Suite 300
Oakland CA, 94607
(844) 678-3772
Attention: Jamal Aboueljoud, Director of Project Management With a COPY TO: ENGIE Services U.S.
150 East Colorado Boulevard, Suite 360
Pasadena, CA 91105-3711
Tel: 626-377-4948
Attention: Contract Administrator
TO CUSTOMER: City of Gonzales
P.O. Box 647
Gonzales CA 93926
Tel: 831.675.2644
Fax: 831.675.2644
Attention: Rene Mendez, City Manager
ARTICLE 11. CONSENTS
Whenever a Party’s consent, approval, satisfaction, or determination will be required or permitted under this Agreement, and this Agreement does not expressly state that the Party may act in its sole discretion, such consent, approval, satisfaction, or determination will not be unreasonably withheld, qualified, conditioned, or delayed, whether or Operation & Maintenance Agreement
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not such a “reasonableness” standard is expressly stated in this Agreement. Whenever a Party’s cooperation is required for the other Party to carry out its obligations hereunder, each Party agrees that it will act in good faith and reasonably in so cooperating with the other Party or its designated representatives or assignees or subcontractors. Each Party will furnish decisions, information, and approvals required by this Agreement in a timely manner so as not to delay the other Party’s performance under this Agreement.
ARTICLE 12. CONSTRUCTION OF AGREEMENT
This Agreement is the result of arms-length negotiations between two sophisticated parties and ambiguities or uncertainties in it will not be construed for or against either Party, but will be construed in a manner that most accurately reflects the intent of the Parties when such Agreement was executed. Each of the Parties acknowledges and agrees that neither Party has provided the other with any legal, accounting, regulatory, financial or tax advice with respect to any of the transactions contemplated hereby, and each Party has consulted its own legal, accounting, regulatory, financial and tax advisors to the extent it has deemed appropriate.
ARTICLE 13. BINDING EFFECT
Except as otherwise provided herein, the terms and provisions of this Agreement will apply to, be binding upon, and inure to the benefit of the Parties hereto and their respective heirs, legal representatives, successors, and permitted assigns.
ARTICLE 14. NO WAIVER
The failure of ENGIE Services U.S. or Customer to insist upon the strict performance of this Agreement will not constitute or be construed as a waiver or relinquishment of either Party’s right to thereafter enforce the same in accordance with this Agreement in the event of a continuing or subsequent default on the part of ENGIE Services U.S. or Customer.
ARTICLE 15. HEADINGS
Headings and subtitles used throughout this Agreement are for the purpose of convenience only, and no heading or subtitle will modify or be used to interpret the text of any section.
ARTICLE 16. COUNTERPARTS; INTEGRATION
This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which will constitute an original, but all of which when taken together will constitute a single contract. This Agreement constitutes the entire agreement among the Parties relating to the subject matter hereof and supersedes any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Delivery of an executed counterpart of a signature page of this Agreement by email or fax will be effective as delivery of a manually executed counterpart of this Agreement.
[the Parties’ signatures appear on the following page]
Operation & Maintenance Agreement
The City of Gonzales and ENGIE Services U.S.
Rev. Date: _______ Page 10 of 13 O&M
V 01/05/22
IN WITNESS WHEREOF, and intending to be legally bound, the Parties hereto subscribe their names to this Agreement by their duly authorized officers on the date first above written.
ENGIE SERVICES U.S.: CUSTOMER:
ENGIE Services U.S. Inc. City of Gonzales
By: ___________________________________ By:______________________________________ Name: Name:
Title: Title:
Operation & Maintenance Agreement
The City of Gonzales and ENGIE Services U.S.
Rev. Date: _______ Page 11 of 13 O&M
V 01/05/22
ATTACHMENT A
SOLAR PREVENTATIVE MAINTENANCE STANDARD SCOPE OF WORK
Project Locations:
Site Name Site Address City State Zip Code
Police Station 109 4th Street Gonzales CA 93926
Swimming Pool 205 Elko Street Gonzales CA 93926
Well #3 Corportation Yard End C St. at Park Gonzales CA 93926 Well #6 375 Alta Street Gonzales CA 93926
Constellation Winery (Leased
Premises, Adjacent to Well#4)
800 S. Alta Street Gonzales CA 93926
Wastewater Treatment Plant End of Short Road Gonzales CA 93922 All work shall comply with the following:
ENGIE Services U.S. will provide all equipment and materials required. ENGIE Services U.S. will be responsible for all tools, equipment, lifts, storage containers, on-site supervision, labor, materials, and transportation necessary to complete the preventative maintenance activities. Equipment and tools are not to be borrowed from the Customer or Site Host. All aspects of the work will comply with all applicable local, state, and national codes and regulations. When moving heavy equipment (forklifts, scissor lifts, etc.) between sites, ENGIE Services U.S. must follow local traffic ordinances.
Heavy equipment left overnight shall be secured to be inoperable. Keys shall not be left in equipment.
When moving heavy equipment or driving large trucks on site during occupied periods, vehicle shall be accompanied by a person on foot.
ENGIE Services U.S. is responsible for the timely cleanup of the site on a daily basis and removal of all loose packaging materials and trash from the site.
Stop Work Authority -All workers have the authority and responsibility to stop work activities if an unsafe act is observed or imminent danger or dangerous condition is noted or perceived. These conditions may include danger of serious injury or fatality, or concern about a potential environmental release. ENGIE Services U.S. O&M manager will determine if conditions can be abated or mitigated in the field. As appropriate, a Stop Work Notice may be issued. The Stop Work Notice normally stops a specific activity within a project, not the entire project, unless dictated by the situation. All equipment shall be confirmed to be secured and locked before leaving site. Before leaving the site, all Modbus communications must be confirmed to be working correctly, this can be done at the Acquisuite or by calling an ENGIE Services U.S. monitoring or O&M representative.
Any work done on WWTP solar array shall ensure continuity of GridLock Solar Panel alarming wiring upon completion of work.
SCOPE of Work:
System Inspections: Annual
Visually inspect arrays, panel mounting, wiring, combiner boxes, sub combiner boxes, and disconnect switches.
Visually inspect combiner boxes, sub combiner boxes, and disconnect switch panels. Visually inspect top side of solar panels and mark on array site plan any broken panels found. Visually inspect bottom side of solar panels looking for discoloration or any other abnormalities.
Photograph and mark locations on array site plan.
o Panels showing signs of electrical shorting shall be removed from circuit by opening string fuse, disconnect MC connectors and mark panel with an X on the backside using black electrical tape. Wires shall be secured and not left hanging down. Visually inspect array racking components
Operation & Maintenance Agreement
The City of Gonzales and ENGIE Services U.S.
Rev. Date: _______ Page 12 of 13 O&M
V 01/05/22
o Visually inspect racking hardware and components for abnormal wear or excessive corrosion.
o Visually inspect any roof or building penetrations for signs of damage or compromised seals. o Inspection of structural system for any abnormal movement or settling. Visual inspection of exposed array wiring.
o DC wiring not installed in a raceway will be inspected for chaffing, deterioration, and proper MC connections.
System Testing: Annual
Perform string testing on all solar source circuits utilizing Solmetric PV Analyzer and provide resulting report.
Infrared scan inverters, combiner boxes, disconnects and switchgear. Service inverter internal components per manufacturer’s guidelines to be performed by technician holding Inverter Manufacturer training certificate.
Continuity test all fuses.
Inverter Cleaning: Semi-annual
Replacement of inverter Intake air filters.
Clean inverter air intake and vent ducts.
Clean and remove dust from inverter control boards. (Using canned compressed, non-static air) Clean outside of inverter cabinet, louvres, transformer cabinet and louvres, and switchboard cabinets. Remove all spider webs and debris.
Remove all dirt and debris from equipment pad areas pertaining to solar equipment.
Solar Array Inspection and Washing: Semi-annual
Solar Array Visual Inspection:
Visually inspect arrays, panel mounting clips, solar panel ground clips, solar panel ground wire, DC string wiring, and DC combiner boxes. Note any rust, missing labels, clips, wire chaffing/deterioration, hanging wires, water infiltration, structural damage, or other problems. Identify broken modules on a site plan for follow up replacement. Take ‘Before Washing’ Photos.
Solar Array Cleaning
Proper lift equipment will be used if necessary when reaching above solar modules. Water used shell be near ambient temperature.
Will avoid washing broken solar panels.
Only Deionized Water will be used for the module cleaning. Clean modules surface & frames, according to solar panel manufacturer’s warranty specifications.
Monitoring: Monitor system performance on a daily basis. (i) System performance is evaluated by comparing actual production data and actual local weather data to the production values predicted by PVsyst modeling software. These evaluations are performed monthly; greater-than-predicted Operation & Maintenance Agreement
The City of Gonzales and ENGIE Services U.S.
Rev. Date: _______ Page 13 of 13 O&M
V 01/05/22
degradations may indicate the need for further inspection and possible recommendation for panel washing.
(ii) Reporting: A web portal will be provided for users to view and download solar production data. A monthly email report showing: production for the month, production year to date, and monthly percent of expected production.