THIRD AMENDMENT
TO
ENGINEERING, PROCUREMENT AND CONSTRUCTION SERVICES AGREEMENT
THIS THIRD AMENDMENT TO ENGINEERING, PROCUREMENT AND CONSTRUCTION SERVICES AGREEMENT (this "Amendment") is entered into as of this day of_ _ 2024 (the "Amendment Date") by and between City of Lancaster, a California municipal corporation and charter city ("Owner"), and PowerFlex Systems, LLC (f/k/a PowerFlex Systems, Inc.,) a Delaware limited liability company ("Contractor"). Each of Owner and Contractor is sometimes referred to as a "Party" and collectively as the "Parties."
RECITAL
A. Owner and Contractor are parties to that certain Engineering, Procurement and Construction Services Agreement, dated November 10, 2021, (the "Agreement"), with respect to services provided by Contractor to Owner; and
B. Owner and Contractor entered into an Amendment to amend the Agreement dated January 6, 2022 (the "First Amendment"); and
C. Owner and Contractor entered into an Amendment to amend the Agreement dated November 2, 2022 (the "Second Amendment"); and
D. Owner and Contractor are entering into this Amendment to further amend certain terms of the Agreement, as set forth herein.
AGREEMENT
Defined Terms. Capitalized terms used but not defined in this Amendment have the meanings assigned to them pursuant to the Agreement.
1 2. Adjustment to Contract Price and Milestone Payment Schedule Agreement Section 3.1 hereby is deleted and replaced in its entirety by the following Section 3.1:
3.1 Contract Price. As consideration to Contractor for completing and furnishing the Work and Materials, Owner agrees to pay Contractor One Million, Five Hundred Six Thousand One Hundred Forty-Six Dollars ($1,506,146.00) plus applicable sales tax, in accordance with Exhibit M, and subject to adjustment pursuant to authorized Change Orders (such amount being the "Contract Price"). Any payments made by Owner to Contractor in accordance with the Milestone Payment Schedule shall be based on the Contract Price specified in Exhibit M. Except as set forth above or with respect to any additions or deductions relating to authorized Change Orders, and as provided in Section 3.2, the Contract Price shall not be increased or decreased for any reason under this Agreement.
b. Agreement Exhibit M hereby is deleted and replaced in its entirety by Exhibit M to this Amendment.
3. Change to Microgrid Milestone Schedule of Work. Agreement Exhibit C hereby is deleted and replaced in its entirety by Exhibit C to this Amendment.
4. Adjustment to Project Description and Scope of Work. Agreement Exhibit A is hereby deleted and replaced in its entirety by Exhibit A to this Amendment.
5. Utility-Side Interconnection Upgrades. Agreement Exhibit J is hereby deleted and replaced in its entirety by Exhibit J to this Amendment.
6. Miscellaneous.
2 a. This Amendment shall be interpreted and enforced in accordance with the laws of the State of California, excluding any choice of law rules that may direct the application of the laws of another jurisdiction.
This Amendment may be executed in one or more duplicate counterparts, and when executed and delivered by all the parties listed below, shall constitute a single binding Amendment with respect to the Agreement.
c. Except as specifically provided in this Amendment, the First Amendment and the Second Amendment, the Agreement remains unchanged and in full force and effect in accordance with its terms.
[Signature page follows.]
3 IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed in their respective names as of the Amendment Date.
CONTRACTOR: OWNER:
POWERFLEX SYSTEMS, LLC a Delaware CITY OF LANCASTER, a California limited liability company municipal corporation and charter city By: By:
Name: Name:
Title: Title:
Signature Page to Third Amendment
To Engineering, Procurement and Construction Services Agreement Exhibit A
Project Description and Scope of Work (includes Attachment A1 - Contract Documents) Except as otherwise defined in this Exhibit A or this "Scope of Work," capitalized terms have the meanings assigned to them in the Engineering, Procurement and Construction Services Agreement (the "Agreement"), as amended, to which this Exhibit A is attached and into which this Exhibit A is incorporated.
Except as noted in the table below or otherwise in this Scope of Work, Contractor shall perform all work necessary for the design, engineering, development, permitting, material and equipment procurement, installation, construction, testing, commissioning, and start-up of the System (collectively, the "Project"):
SUMMARY
ID# Sub-System Description Responsible Party
1. Battery Storage Engineer, procure, construct, install, and Contractor System commission a 250kWDC, 500kWh Battery Storage
System
2. Microgrid Electrical Engineer, procure, construct, install, and Contractor Infrastructure commission a Schneider Electric Energy Control Center
3. Control System Procure, install, and commission Schneider Electric Contractor Microgrid Energy Management System to control
the new Battery Storage System and Diesel
Generator currently located at the Site.
General Inclusions:
A. Contractor will provide turn-key installation services for a complete, fully commissioned, and operational systems) per the System specifications above.
B. Contractor will perform System start-up and provide commissioning documentation for the Battery Storage system and Energy Management System (each a "Subsystem").
Contractor will coordinate interconnection application process and all applicable inspections or requisite activities for final interconnection.
D. All work will be completed using Prevailing Wage Labor.
E. All work shall be completed in a workmanlike manner, in conformity with the requirements of the City of Lancaster's legal requirements, including the City's Building and Safety Department permitting standards.
F. Provide progress updates, revised schedules, and relevant communication throughout the performance of the Project.
Provide proper removal, disposal, recycling, and associated coordination of all equipment, materials, appurtenances, etc. to be removed, replaced, or decommissioned. Disposal and recycling documentation shall be provided by Contractor to Owner, upon request.
H. Observe and strictly adhere to all Owner and CalOSHA required safety plans, procedures, and requirements. Furthermore, Contractor acknowledges that it shall notify and cause all of Contractor's employees and subcontractors to access and review such handbooks and to agree to the terms thereof, as amended from time to time, before making initial entry on to the Site.
I. Properly secure work areas with temporary fencing, scaffolding, shoring, trench covers, and other required security measures to ensure a safe workplace for employees and subcontractors throughout the performance of the Project.
J. Provide applicable Material Safety Data Sheets, upon request.
Structural Engineering and Electrical Engineering Design as necessary including, if applicable, for submission to the City's Building and Safety Department L. Engineers of Record will be licensed in the state of California.
M. Owner agrees to provide a Letter of Authority (LOA) for Contractor to contact the Utility for the purposes of monitoring the System operation and the System interconnection.
All Permitting documentation necessary for submission and permit issuance from City of Lancaster.
O. Copper wire/cable will be used for all conductors.
P. All Interconnection coordination with the local Utility.
All installation coordination with Owner's project management and Contractor subcontractors.
R. Interconnection shutdowns if required will be performed outside of normal business hours.
S. A person responsible for the Property will be present to shut down the power or the Owner will provide a letter indemnifying the Contractor for any damages that directly result from the Contractor shutting off the power.
Conduit shall be PVC schedule 40 below grade or as required by City's Building and Safety Department codes.
U. See Exhibit B and preliminary System Plans for preliminary Property layout and System location information.
V. Delivery and Unloading of the equipment at the Project site.
W. Temporary fencing to "safe off" the work area as required for the Project construction period X. Temporary restrooms within the temporary fencing for Contractor's use.
Y. Permit Fees.
Utility Standard interconnection fee for a simplified Interconnection.
AA. Final System Plans (as-builts) will be provided in PDF format.
BB. Concrete block wall (8' tall) around Battery location and single-swing door with panic-bar door latch
Contractor to provide existing conditions survey.
8. Exclusions:
A. Owner Inspection Costs are the responsibility of the Owner.
B. Project designs will be based upon accurate Property documentation provided by Owner.
Any work, including costs incurred for work, due to changes to the System location depicted in Exhibit B directed by Owner are not included.
D. Owner will bring current electrical equipment at the Property up to code, if and to the extent required under applicable Law.
E. Excludes all materials and labor contracted between the Owner and utility related to necessary upgrades to utility equipment.
Excludes supply and operation of any temporary power to Owner facilities during service upgrade work or system testing. Temporary power supply will be provided by Owner by use of its existing diesel generator and emergency electrical system.
G. Excludes geotechnical or soils investigation.
H. New concrete foundation for Electrical Control Center (ECC). Project to repurpose existing concrete slab foundation adjacent to outdoor Chiller/HVAC unit for installation of new ECC.
I. Contract Price in Section 3.1 is inclusive of sales tax on equipment up to 6.0625%, provided Owner supplies Contactor with Partial Exemption Certificate [CDTFA-230-M REV. 4 (9- 21)].
J. New electrical and communication conductors and conduits between existing City Hall Main Distribution Panel and Automatic Transfer Switch. Existing conduits and conductors are assumed suitable to be repurposed for continued use.
K. New electrical and communication conductors and conduits between existing Diesel Generator and Automatic Transfer Switch. Existing conduits and conductors are assumed suitable to be repurposed for continued use.
L. Reinstallation of parking lot lighting.
EXHIBIT C-
Microgrid Milestone Schedule
Contract Execution (_10/31/21)
Interconnection Approval (_8/31/22
Permit Approval (_12/12/24_
Schneider Energy Control Center Installed (2/18/25
BESS Delivered (_2/03/25
Mechanical Completion (_3/17/25_
Final Completion and Turnover (_7/14/25
EXHIBIT J-
INTERCONNECTION WORK
INTERCONNECTION WORK:
Contractor Interconnection Work - Contractor shall only be responsible to perform the interconnection work for the Project as set forth in Exhibit A. Upgrades or adjustments to utility or customer-owned service equipment is not included, unless noted in Exhibit A.
EXHIBIT M - MILESTONE PAYMENT SCHEDULE
Contractor and Owner have agreed on the following Milestone Payment Schedule apportioning the Contract Price across the items identified below,
of administering payments to Contractor pursuant to Article 3 and shall not be interpreted as establishing or modifying Contractor's Scope of Work under the Agreement. Owner reserves the right in its sole discretion to assign any costs for the Work submitted by Contractor to any item set forth below.
Payment % of Estimated
Payment Milest terms Contract Milestone
one (days) Price Payment
1 Executed EPC Agreement (Paid Previously) 30 19.7% $296,580 2 Interconnection Approval (Paid Previously) 30 9.8% $148,290 3 Schneider Energy Control Center Delivered 30 29.6% $445,736 4 BESS Delivered 30 29.6% $445,736
5 Mechanical Completion 30 5.6% $84,902
6 Final Completion and Turnover 30 5.6% $84,902