DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 Confidential
ENGINEERING, PROCUREMENT AND CONSTRUCTION SERVICES AGREEMENT By and between
CITY OF LANCASTER
as Owner
and
POWERFLEX SYSTEMS, INC.
as Contractor
Dated
As Of_ November 10, 2021 | 9:04:10 AM PST
4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69
ENGINEERING, PROCUREMENT, AND CONSTRUCTION
SERVICES AGREEMENT
THIS ENGINEERING, PROCUREMENT AND CONSTRUCTION SERVICES AGREEMENT (this "Agreement") is made and entered into as of this | ] day of L J, 2021 (the "Effective Date") by and between City of Lancaster, a California municipal corporation and charter city, witl rincipal offices at 44933 Fern Ave, Lancaster, CA 93534 ("Owner"), and Powerflex Systems, Inc., i Delaware corporation, with principal offices at 5 Commerce Avenue, West Lebanon, NH 03784 ("Contractor"). Each of Owner and Contractor is sometimes referred to as a "Party" and collectively as the "Parties."
RECITALS
Owner owns the City Hall building of approximately ninety thousand square feet, (the hereto (the "Site");
B. Owner intends to own and operate a battery energy storage facility having a capacity of approximately 250 kW (DC) / (500 kWh) to be installed on the parking lot at the Site, microgrid electrical infrastructure, including switch gear, metering, inverter, energy controls system, and related electrical and other system components ("Microgrid Infrastructure") at the Site (collectively, the "Svstem"), which System is more fully described in the System Description and Scope of Work attached as Exhibit A hereto.
C. Owner operates one or more facilities at the Site that is expected to use the total output capacity of the System.
D. Contractor is in the business of designing, constructing, and commissioning fully installed energy storage, and related systems.
Owner desires to retain Contractor, and Contractor desires to be retained, to perform or cause to be performed all work for the design, development, engineering, procurement, installation, construction, testing, start-up and commissioning of the System at the Site in accordance with this Agreement and the provisioning of all labor, materials, machinery, tools, transportation, administration and other services and items required to complete and deliver to Owner the fully integrated, installed, tested, and operational System on a fixed-price basis, all subject to and in accordance with the terms and conditions herein (collectively, the "Proiect").
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Capitalized Terms. Capitalized terms used but not otherwise defined herein shall have the meanings assigned to them in Schedule 1.1.
ARTICLE 2
SCOPE OF WORK
2.1 Work and Materials.
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2.1.1 Owner hereby retains Contractor to perform, furnish, undertake, procure, and provide or cause to be performed, furnished, undertaken, procured, and provided, all work to complete the Project in accordance with this Agreement, which comprises the design, engineering, procurement, construction, installation, interconnection, testing, start-up and commissioning of the System at the Site, diligently and in a good and workmanlike manner and in accordance with the Scope of Work, drawings, plans and specifications set forth in this Agreement, and the provisioning of all materials, including electrical wiring, conduit and other electrical supplies, modules, inverters, controls, racking, combiner boxes, combiner box fuses, and grounding equipment (collectively, the "Materials"), machinery, tools, transportation, administration, personnel, labor and other services, and other items required to complete the Project and deliver to Owner the fully integrated, interconnected, installed, tested, and operational System, all on a fixed-price, turnkey basis, and otherwise in accordance with this Agreement, the requirements of the manufacturers of all Materials, applicable standards (including those set forth in Section 2.3.2), and Laws. Such Contractor activities, including the provision of the Materials, collectively are referred to as the "Work." The "Work" includes the Work detailed on Exhibit A and also includes the portions of the Interconnection Work that are the responsibility of Contractor as expressly set forth on Exhibit J Regardless of the provisions of Exhibit J, the Work shall not include the Utility-side interconnection upgrades or Electrical System upgrades required for the Project, which to the extent required as part of the Interconnection Work (or otherwise) are designated on Exhibit J as the responsibility of the Utility or the Owner. Also, the Work includes the provision, selection, engineering, installation, construction, testing, and, during start-up, operation of equipment and materials.
2.1.2 Until the Substantial Completion Date, Contractor shall provide, at Contractor's cost, all of the utilities, including but not limited to temporary power, that are used or required at the Site in connection with the performance of the Work and the Project prior to the Substantial Completion Date.
Following the Substantial Completion Date, all electric power will be provided by Owner at Owner's cost.
Contractor shall at its own expense conduct the System Tests, as described on Exhibit E, excluding any fees for independent technical or engineering consultant review initiated by Owner which will be paid by Owner.
2.2 Owner Obligations. As an express condition to the obligations of the Contractor hereunder with respect to the Project, the provision of the Materials and the performance of the Work, Owner hereby covenants and agrees:
2.2.1 Owner will perform Owner's responsibilities hereunder with reasonable diligence and without unreasonable delay, including, without limitation, the Project-related work set forth and described on Exhibit A
2.2.2 Owner shall procure and maintain the Governmental Authorizations required to undertake the Work in accordance with this Agreement that are not Permits identified as Contractor responsibilities on Exhibit L. Without limitation, Owner shall procure and maintain the Permits identified as Owner responsibilities on Exhibit L.
2.2.3 Owner will promptly advise Contractor of any new information about the Project, the Contract Documents, the Work, the Site, any Permits or any other matter that could or with notice or lapse of time would affect the Work or the Project and will provide Contractor with any amendments to such agreements as other documents, as applicable, reflecting such information. All information provided to Contractor by Owner will be true, complete and correct to the knowledge of Owner and will not, to the Owner's knowledge, omit any fact necessary to make the content of any such information not misleading. 3 4816-8336-3833v2/022283-0548
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2.2.4 Owner will promptly respond in good faith to Contractor requests for Owner review, consent, or approval pursuant to this Agreement or otherwise in connection with performance of the Work; and, in such regard, Owner acknowledges and agrees that time is of the essence.
2.2.5 Owner shall be responsible for providing or for assuring that Utility provides all interconnection facilities that are required to interconnect the Project to the Distribution System in accordance with the Interconnection Agreement.
2.2.6 Owner shall timely perform the Interconnection Work to be performed by Owner, if any.
Without limiting Contractor's rights under Article 2, if Owner fails to timely perform any Owner obligations pursuant to this Section 2.2, and such failure adversely affects the Project Schedule or causes an increase in the Project costs (including to avoid or reduce an extension of the Project Schedule), the Contractor and Owner shall execute, deliver, and perform a Change Order providing for an equitable adjustment to the Project Schedule or an increase in the Project Cost, in each case as required to address the impact of the Owner performance failure or delay on the Project. Notwithstanding the foregoing, the failure of any utility service to timely perform Interconnection Work to be performed by such utility service shall not constitute a performance failure or delay by Owner and shall not entitle Contractor to any remedy against Owner under this Section 2.2, Article 9 of this Agreement, or otherwise.
Contractor Obligations. Without limiting the other provisions of this Agreement and Exhibit A, Contractor shall perform, or cause to be performed, the following as part of the Work:
2.3.1 Certification of Completion - Mechanical Completion, Substantial Completion. and Final Completion.
(a) Mechanical Completion. Notwithstanding anything to the contrary herein, Contractor agrees that it will provide a Mechanical Completion Certificate executed by Contractor to Owner at least five (5) Business Days prior to the date that Contractor expects the System to have achieved Mechanical Completion along with all documentation necessary for Owner to determine if Mechanical Completion of the System is so achievable. Within fifteen (15) Business Days following the date on which an executed Mechanical Completion Certificate is received by Owner, Owner shall review such certificate and documentation with Contractor for the purpose of determining if the conditions for Mechanical Completion of the System have been achieved. Within such period, Owner shall either (i) countersign and deliver to Contractor the Mechanical Completion Certificate to indicate its agreement that Mechanical Completion of the System has been achieved, or (ii) if reasonable cause exists for doing so, notify Contractor of its belief that Mechanical Completion of the System has not been achieved, including Owner's reasons for believing the same and advising Contractor of the actions it believes are required for the System to achieve Mechanical Completion. The procedures described in this Section
2.3.1(a) shall be repeated as necessary until Mechanical Completion of the System has been achieved. The Mechanical Completion Date shall be the date reflected as the date of Mechanical Completion on the last review and comment.
(b) Placed in Service. The System shall not be Placed In Service prior to the Mechanical Completion Date; and, after the Mechanical Completion Date, the System only shall be Placed In Service by the Contractor after receipt of written approval by the Owner. Owner will provide written approval for the System to be Placed in Service no later than ten (10) Business Days after the Mechanical 4 4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 Completion Date. If Owner does not provide approval for good cause shown, then the System shall not be Placed In Service pursuant to this Section 2.3.1(b); but the failure to achieve a Placed In Service Date shall not affect the rights and obligations of the Parties with respect to achieving Substantial Completion or Final Completion of the Project. If a Placed In Service Date is not achieved prior to the Substantial Completion Date, then the payment of the Contract Price due on the Placed In Service Date instead shall be due and payable on the Substantial Completion Date.
(c) Punchlist. Prior to Substantial Completion of the Project, Contractor shall inspect and prepare a Punchlist detailing all items requiring completion or correction in each case after Substantial Completion, with respect to the Project and shall submit such list to Owner for review. Owner shall have ten (10) Business Days to review and respond to such Punchlist, including to conduct its own inspection of the Project. On or before the tenth (10th) Business Day, Contractor and Owner shall review and agree on the Punchlist Items that should be included on a final listing of Punchlist Items and the timing to complete the Project. This agreed-upon punchlist shall be the official Substantial Completion "Punchlist" for the Project. For the avoidance of doubt, inclusion or exclusion of any Punchlist Item on the Punchlist shall not waive Contractor's obligation to correct any defects found prior to Substantial Completion and through the Work Warranty Period.
(d) Substantial Completion. On or before the Day on which Contractor believes that Substantial Completion has been completed for the Project, Contractor shall submit to Owner a Substantial Completion Certificate along with all documentation reasonably necessary for Owner to determine if Substantial Completion has been achieved. Within ten (10) Business Days following the date on which an executed Substantial Completion Certificate is received by Owner, Owner shall review such certificate and documentation with Contractor for the purpose of determining if Substantial Completion has been achieved for the Project. Within such ten (10) Business Day period, Owner shall either (i) countersign and deliver to Contractor the Substantial Completion Certificate to indicate its agreement that Substantial Completion has been achieved, or (ii) if reasonable cause exists for doing so, notify Contractor of its belief that Substantial Completion has not been achieved, including Owner's reasons for believing the same and advising of the actions it believes are required to achieve Substantial Completion. The procedures described in this Section 2.3.1(d) shall be repeated as necessary until Substantial Completion of the Project has been completed. The date of achievement of Substantial Completion (the "Substantial Completion Date") shall be the date reflected as the date of Substantial Completion on the Substantial Completion Certificate that is countersigned by Owner pursuant to this Section 2.3.1(d).
Final Completion. On or before the Day on which Contractor believes that Final Completion for the Project has been completed, Contractor shall submit to Owner a Final Completion Certificate along with all documentation reasonably necessary for Owner to determine if Final Completion for said Project has been achieved. Within ten (10) Business Days following the date on which an executed Final Completion Certificate is received by Owner, Owner shall review such certificate and documentation with Contractor for the purpose of determining if Final Completion for the Project has been achieved. Within such ten (10) Business Day period, Owner shall either (i) countersign and deliver to Contractor the Final Completion Certificate to indicate its agreement that Final Completion for the Project has been achieved, or (ii) if reasonable cause exists for doing so, notify Contractor of its belief that Final Completion for said Project has not been achieved, including Owner's reasons for believing the same and advising of the actions it believes are required to achieve Final Completion for the Project. The procedures described in this Section 2.3.1(e) shall be repeated as necessary until Final Completion for the Project has been completed. The date of achievement of Final Completion for the Project (the "Final Completion Date") shall be the date reflected as the date of Final Completion on the Final Completion Certificate countersigned by Owner. Final Completion for the Project shall be achieved within the timeframe specified on the final Punchlist.
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DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 (f) Time of the Essence. The Parties acknowledge and agree that time is of the essence with respect to the achievement of agreement on a final Punchlist, a Substantial Completion Certificate countersigned by the Owner, and a Final Completion Certificate countersigned by the Owner; and the Parties will work in good faith to achieve a final Punchlist and countersigned certificates pursuant to this Section 2.3.1.
2.3.2 Standard of Performance. Contractor shall cause the Work (including the design, engineering, construction, and testing of the Project) to be performed: (a) in compliance with all requirements of this Agreement and its Exhibits, and all Laws (including (i) any applicable noise ordinances during the construction of the Project, and (ii) any applicable lighting ordinance during the construction of the Project); (b) in accordance with Prudent Industry Practices and the terms and conditions, System Test requirements and Performance Criteria of this Agreement; (c) in a safe, expeditious, good, and workmanlike manner; (d) in compliance with the applicable requirements of the Interconnection Agreement; (e) in compliance with the safety regulations and standards applicable to the Project and adopted under the Occupational Safety and Health Act of 1970, as amended from time to time; and (f) in compliance with the Site Requirements. Except as otherwise expressly provided in this Agreement, the standard of performance set forth in this Section 2.3.2 shall apply to all aspects of the Work and the provisioning of the Materials, and this Section 2.3.2 shall be deemed to be incorporated by reference into each provision of this Agreement describing the Work or describing Contractor's obligations hereunder.
2.4 Final Design and "As-Built" Documents; O&M Manual; Submittals.
2.4.1 As a condition to Final Completion of the Project, Contractor shall deliver to Owner the following:
(a) Final "as-built" or record plans and line diagrams/drawings sealed by Engineer of Record, and test reports, including performance test reports and commissioning documents, in sufficient detail to allow the operation and maintenance of the Project and reflecting any changes in the design (the "Design") of the System;
Two (2) paper copies and two (2) electronic on separate compact discs in Microsoft Word or PDF of the final and complete revision of the Operations and Maintenance Manual, which shall include the final "as-built" plans and line diagrams/drawings, equipment specification sheets, warranty information, safety data sheets, applicable health and safety documentation, specific maintenance schedules required to comply with the Work Warranty, and testing and commissioning reports; and (c) Two (2) paper copies and two (2) electronic copies on separate compact dises in Microsoft Word or PDF of the final and complete revision of the Turnover Package, reviewed and approved by Owner in accordance with Section 2.4.3.
2.4.2 On or prior to the Substantial Completion Date, Contractor shall deliver to Owner paper and electronic (in a format reasonably acceptable to Owner) copies of the Operations and Maintenance Manual (in draft form) relating to Materials supplied by Contractor and each of the Subcontractors. Within ten (10) Days of submission of the draft Operations and Maintenance Manual, Owner shall notify Contractor of Owner's approval of the draft, or Owner's reasonable revisions thereto and the reasons for its rejection of all or any portion thereof. In the event of such total or partial rejection or revisions of the draft Operations and Maintenance Manual, within five (5) Days after receipt of notice of such revisions or rejection Contractor shall make appropriate changes to the draft to respond to the Owner's revisions or reasons for rejection and shall resubmit such draft to Owner. Such procedure shall be repeated until receipt of Owner's written approval of the Operations and Maintenance Manual. Substantial 4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 Completion may occur during the process of finalization of the Operations Maintenance Manual contemplated by this Section.
2.4.3 As soon as practicable after the Substantial Completion Date, Contractor shall deliver to Owner one copy of the semi-final draft (as complete as practicable given the then-current status of the Work) of the Turnover Package, either in Turnover Package format or in a form and format available as a result of the design and construction process, as appropriate. The Turnover Package shall be prepared in the English language only. Where any of the information in the Turnover Package was produced by computer-aided design and is available to Contractor or any Subcontractor, Contractor shall provide or cause to be provided to Owner a disk copy of such information in an Intergraph- or AutoCad-compatible format or PDF. Within ten (10) Days of submission of the draft Turnover Package, Owner shall notify Contractor of Owner's approval of the draft, or Owner's reasonable revisions thereto and the reasons for its rejection of all or any portion thereof. In the event of such total or partial rejection or revisions of the draft Turnover Package, within five (5) Days after receipt of notice of such revisions or rejection Contractor shall make appropriate changes to the draft to respond to the Owner's revisions or reasons for rejection and shall resubmit such draft to Owner. Such procedure shall be repeated until receipt of Owner's written approval of the Turnover Package.
2.4.4 All Submittals shall be delivered to Owner Representative in accordance with Section 14.6.2. For greater certainty, no change shall be incorporated in the Work or Materials unless expressly agreed to in writing by Owner in accordance with Section 6.1.
Scheduling and Milestones. Contractor shall administer and provide the Work and Materials in accordance with the Project Schedule set forth on Exhibit C. If a Limited Notice to Proceed is issued, then Contractor shall also prepare and submit to Owner a preliminary baseline schedule for the Work within thirty (30) calendar Days after issuance of the Limited Notice to Proceed covering design, permitting, procurement, fabrication, delivery, and construction activities for the first ninety (90) Days following issuance of the Limited Notice to Proceed, unless otherwise directed by Owner.
Risk of Loss. From the Commencement Date through the Day immediately preceding the Final Completion Date, Contractor shall bear the risk of loss and damage with respect to the Project and shall be obligated to repair, replace, or reconstruct any portion of the Work or Materials comprising the Clean-Up. From the Commencement Date through the Final Completion Date, Contractor shall at all times keep the Site and the Work in a safe and orderly state, as appropriate in accordance with Prudent Industry Practices, to avoid danger to Persons on the Site and in the immediate vicinity of the Site, and take such measures as are reasonable in accordance with Prudent Industry Practices to prevent access to the Site of any persons not entitled to be there. Contractor shall at all times keep the Site reasonably free from waste materials or rubbish caused by its activities. During the period from Substantial Completion to Final Completion: (a) Contractor shall keep the Work in a safe and orderly state, as appropriate in accordance with Prudent Industry Practices, to avoid danger to Persons on the Site and in the immediate vicinity of the area(s) on the Site where Work continues to be performed, and take such measures as are reasonable in accordance with Prudent Industry Practices; and (b) Contractor's performance of the Work shall not unreasonably interfere with the operation of the Project so long as Contractor can safely and efficiently perform its Work without such interference. As soon as practicable after the completion of all Punchlist Items, Contractor shall remove all of its equipment and materials not constituting part of the Project and complete removal of all waste material and rubbish from and around the Site. All waste material and rubbish resulting from the Work shall be handled and disposed of by Contractor at its own expense in accordance with all Laws. Contractor shall provide to Owner copies of all waste disposal manifests, if any.
All obligations with respect to waste material and rubbish that are Hazardous Materials shall be governed 7 4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 by Section 2.8. Should Contractor fail to maintain a clean and orderly Work site, Owner shall notify Contractor of such deficiencies, and Contractor shall within 2 Days remedy such deficiencies and provide notice back to Owner that such deficiencies have been rectified.
2.8 Hazardous Materials.
2.8.1 Contractor shall not, nor shall it permit any of its Subcontractors to, bring, use, generate, or release any Hazardous Materials on the Site, other than either the Materials or any Hazardous Materials to be used by Contractor or any of its Subcontractors on the Site in a manner that both (a) does not violate or contribute to a violation of, or whether individually or on an aggregate basis require reporting or disclosure to any Governmental Authority, Owner or third party under, any Environmental Laws, and (b) is consistent with Prudent Industry Practices and is required or reasonably necessary for Contractor to perform the Work.
2.8.2 Contractor shall bear all responsibility and habılity for Hazardous Materials used, generated or released on the Site by Contractor, or any of its Subcontractors, whether such Hazardous Materials are permitted to be brought on the Site pursuant to this Section 2.9 or are brought on the Site in iolation of this Section 2.9:; provided, Owner shall bear the responsibility and liability with respect to an lazardous Materials on the Site prior to the commencement of the Work or released at anv time by Owne Owner's other contractors, or third parties acting under the control of Owner (collectively "pre-existing Hazardous Materials"). Contractor shall not be responsible for any pre-existing Hazardous Materials encountered at the Site; provided, however, that Contractor shall be responsible for any negligent mishandling or disturbance by Contractor or any of its Subcontractors of any pre-existing Hazardous Materials encountered at the Site. If such pre-existing Hazardous Materials are encountered at the Site by Contractor, Contractor shall promptly, upon recognizing such condition (a) stop the Work in the affected area of the Site and of which Contractor is aware, and (b) report such condition to Owner in writing. The Project Schedule shall be equitably adjusted to the extent of any Work stoppage in connection with pre- existing Hazardous Materials, provided however, that the uncovering of the Hazardous Materials was not due to Contractor gross negligence. For the purposes of this Section 2.8, pre-existing Hazardous Materials shall include Hazardous Materials that were present or existed at or in the Site prior to the date Contractor or any of its Subcontractors began the Work on the Site. Owner expressly assumes the risk of any extra Work costs related to or resulting from the presence of any such pre-existing Hazardous Materials.
2.8.3 Contractor shall reasonably minimize the use of Hazardous Materials in performance of the Work and shall not utilize, or permit or cause any of its Subcontractors to utilize, such Hazardous Materials, whether in their entirety or in such quantities or concentrations, as are prohibited under any Environmental Laws from being imported into or used in the United States. Contractor shall maintain an updated file of all material safety data sheets for all Hazardous Materials used in connection with performance of the Work at or near the Site or at any construction area related to the Project.
Contractor shall maintain an accurate record and current inventory of all Hazardous Materials used in performance of the Work at or near the Site or at any construction area related to the Project, which record shall identify quantities and concentrations, location of storage, use and final disposition of such Hazardous Materials.
2.8.4 Subject to the provisions of Section 2.9.2, Contractor shall be solely responsible for compliance with Environmental Laws pertaining to Hazardous Materials brought, used, generated, or released in violation of Environmental Laws to the extent such violation is caused by Contractor, or any of its Subcontractors, at the Site and for disposing of all Hazardous Materials brought to or used on the Site by Contractor, or any of its Subcontractors in accordance with this Section 2.9 through a reputable waste disposal service in compliance with all Environmental Laws, and Contractor shall maintain written records of such disposal to the extent required by Environmental Laws. 8 4816-8336-3833v2/022283-0548
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2.9 Subcontractors.
2.9.1 Contractor may engage one or more subcontractors, suppliers, vendors or consultants (collectively, "Subcontractors") to provide any Work Contractor is required to provide under this Agreement; provided that Contractor will in any event remain liable for the performance of all of Contractor's obligations hereunder; and Contractor will ensure that all personnel, labor, supervision, and Subcontractors of any tier are properly licensed and qualified to perform the work that they are engaged to perform. As between Owner and Contractor, Contractor agrees that it shall be fully responsible to Owner for the acts and omissions of the Subcontractors and of any Persons directly or indirectly employed by them occurring during the course of their performance of the Work, as it is for the acts or omissions of Persons directly employed by Contractor.
2.9.2 Any costs or expenses incurred by Contractor in connection with any Subcontractor shall be solely for the account of Contractor, and Owner shall have no liability therefor whatsoever.
2.9.3 Nothing contained herein shall (a) create any contractual relationship between any Subcontractor and Owner with respect to the Work or the Project, or (b) obligate Owner to pay, or to cause the payment of, any Subcontractor. No Subcontractor is intended to be, or shall be deemed to be, a third- party beneficiary of this Agreement.
2.9.4 Contractor acknowledges that Owner may have other contractors performing work at or near the Site or that Site Host may be conducting certain activities at the Site.
Owner will cooperate with Contractor and will make all reasonable efforts to coordinate the activities of Owner's other contractors and the Site Host to minimize any interference with the Work or the Project Schedule. The Project Schedule shall be adjusted on a 1:1 daily ratio where Owner is unable to coordinate the activities of Owner's other contractors, the Site Host or other third parties, including Utility, that are not under the control of Contractor or its Subcontractors, such that the Work is delayed or unreasonably impeded and Contractor is entitled to relief under Article 6. Owner will provide Contractor with reasonably sufficient information concerning the activities of other contractors and the Site Host to allow Contractor to adequately plan the Work in coordination with such activities. The Parties agree that any activities performed by Utility in connection with the Project shall be governed by the provisions of Section 2.2(e).
2.10 Safety.
2.10.1 From the Commencement Date through Final Completion of the Project, Contractor shall take all necessary precautions (in accordance with Prudent Industry Practice) to prevent damage, injury or loss resulting from the performance of the Work by Contractor.
2.10.2 Contractor shall initiate and maintain safety precautions and programs in accordance with the safety program attached hereto as Exhibit I ("Contractor's Safety Program") to conform to Laws or other requirements designed to prevent injury to persons or damage to property on, about or adjacent to the Site. Contractor shall conduct all Work in accordance with such Contractor's Safety Program. Contractor shall be solely responsible for initiating, maintaining and supervising all safety measures and programs in connection with the performance of Work. Such precautions and programs shall include the prevention of injury to local flora and fauna in compliance with Law or otherwise as may be commercially reasonable consistent with Prudent Industry Practices. Contractor shall erect and maintain reasonable safeguards for the protection of workers and the public. Contractor shall exercise reasonable 9 4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 efforts to eliminate or abate all reasonably foreseeable safety hazards created by or otherwise resulting from performance of the Work. Contractor shall, and shall cause all of its employees, agents and Subcontractors to, follow the Contractor's Safety Program and to follow Utility's safety and interconnection protocols (to the extent set forth in the Interconnection Agreement), during the performance of the Work relating to Interconnection.
2.10.3 In the event of any emergency relative to the Project or the Work endangering life or property of which Contractor is aware, Contractor shall promptly notify Owner Representative of any such emergency and the related actions taken by Contractor.
2.11 Books and Records. Contractor shall keep, and shall cause its Subcontractors to keep, such books, records, documents, correspondence and accounts as may be necessary for compliance with its obligations under this Agreement and shall maintain such items for a minimum of three (3) years after the Project's Final Completion Date. The preservation of records aforesaid, may be done solely in digital format without the obligation to maintain hard copy records. Upon Owner's request, Contractor shall provide to Owner, at Owner's cost, copies of such of Contractor's records related to the Work or Change Orders. In addition, within a reasonable period of time after a request therefor, Contractor shall provide Owner, at Owner's cost, with any information regarding quantities and descriptions of the Work that Owner reasonably deems necessary. Owner or any of the Owner's duly authorized representatives, shall, at Owner's cost and expense, have the right upon reasonable advance notice and at Contractor's principal offices or such other location mutually agreeable by the parties, to timely audit, and make examination, excerpts, copies and transcriptions of, Contractor's books, records documents, correspondence and accounts related to the Work in order to verify costs associated with any Work and Change Order performed on a cost-plus basis. Notwithstanding anything to the contrary, any request for information, inspection or audit referred to above in this Section 2.12 shall be scheduled and conducted in such a manner that minimizes interference with Contractor's business and affairs and at Owner's cost, and any information obtained by Owner or Owner's agents shall be subject to the provisions of Section 14.14 regarding confidentiality.
2.12 Coordination and Right to Inspect.
2.12.1 Owner, the Owner Representative, and any other representative of Owner designated by Owner to Contractor in writing (collectively, the "Authorized Persons") shall have the right to observe and inspect the Work and to maintain personnel at the Site for such purpose, subject in all cases to Contractor's reasonable safety precautions and provided said observation or inspection does not interfere with or result in a delay in the performance of the Work. Such Authorized Persons shall have the right to be present during commissioning and testing of the Project and shall, by way of example and not limitation, have reasonable access to test procedures, quality control reports, and test reports and data. The Project Schedule shall be extended on a 1:1 daily ratio for any delay to the Work caused by Contractor's obligation to accommodate any Authorized Person as aforesaid and for which Contractor is entitled to relief under Article 6, provided that such delay was not caused by the Contractor having to make corrections to the Work as a result of the observations and inspections. Contractor shall make arrangements and provide for such access, and Owner shall be responsible for all costs associated with their presence (except as otherwise expressly set forth in this Agreement). Contractor acknowledges and agrees that each of such Authorized Persons shall have the right to observe the Work at all times during the progress of the Work and to inspect and monitor the progress of the Work against the Project Schedule in order to verify compliance with the requirements set forth herein and to verify completion of each individual milestone as detailed in the Project Schedule and, in the case of Owner, take appropriate actions as may be required under this Agreement, provided such Authorized Persons do not unreasonably impede the performance of the Work and the Authorized Persons fully comply with all Contractor's Safety Program requirements and protocols and as instructed and directed by Contractor's Personnel. Contractor shall have the right in its sole discretion to 10 4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 restrict access or remove from any Site, any Authorized Person who does not comply, is not capable of complying in Contractor's reasonable opinion, or otherwise fails to observe or is incapable of observing the Contractor's Safety Program requirements or other safety restrictions, protocols and instructions of Contractor. Any action by Contractor to remove or restrict Authorized Persons as aforesaid, shall not constitute a breach of this Agreement by Contractor. No observation, inspection or review by Owner shall constitute an approval, endorsement, or confirmation of any drawing, plan, specification, subcontractor, Materials or Work or an acknowledgment by Owner that such drawing, plan, specification, subcontractor, Materials or Work satisfies the requirements of this Agreement; nor shall any such inspection or review relieve Contractor of any of its obligations to perform the Work and furnish the Materials or the Work so that the Project, when complete, satisfies the requirements of this Agreement.
2.12.2 Prior to the Project's Final Completion, Contractor shall, at its sole cost and expense, correct any part of the Work or Materials that is Defective or otherwise not performed in accordance with the specifications contained within this Agreement regardless of the time or place of discovery of such errors and regardless of whether the Owner has previously accepted it through oversight or otherwise; provided that Contractor shall have no obligation to correct, at its sole cost and expense, any part of the Work or Materials that is Defective or otherwise not performed in accordance with this Agreement to the extent the defect or non-conformity is the result of the acts or failures of Owner or any Person acting for or as agent of Owner. In the event that any part of the Work or Materials is discovered to be in a Defective condition or otherwise not in conformance with the specifications for such Work or Materials as contained within this Agreement after Final Completion of the Project, correction of such Defective condition or other nonconformity shall be governed by the Work Warranty.
2.12.3 Contractor agrees to use reasonable efforts to coordinate the Work with the Owner in order to minimize any interference with the Owner's business and affairs. Contractor shall perform the Work on the Site in a manner that complies with all Permits and Site Requirements.
ARTICLE 3
CONTRACT PRICE AND PAYMENTS
Contract Price. As consideration to Contractor for completing and furnishing the Work and Materials, Owner agrees to pay Contractor nine hundred seventy-seven thousand nine hundred two Dollars ($977,902), 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.
3.2 Payments of the Contract Price.
Pursuant to the invoicing procedure set forth in Sections 3.2.2 and 3.3 Owner shall pay the Contract Price to Contractor in installments in accordance with the Milestone Payment Schedule.
If the Contract Price has been adjusted after payments of the Contract Price have been made to Contractor, the Contract Price percentage of the immediately succeeding payment (or further payments, as necessary) shall be adjusted such that the sum of such payment and all other previously made payments of the Contract Price are equal to the actual total of the percentage of the Contract Price required to be paid up to such point.
3.2.2 Contractor's right to receive any payment to be paid to it hereunder is conditioned upon its submitting to Owner the following: (i) an Application for Payment identifying the Work or 11 4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 Materials completed or acquired and for which payment is sought pursuant to such Application for Payment, (ii) a project update describing the current progress of the Work and Materials, and (iii) partial lien waivers with respect to the Work or Materials covered by the Application for Payment then being submitted duly executed by Contractor in the form of Exhibit O. Each waiver and release of liens provided by Contractor and each of its Major Subcontractors shall provide that all amounts that were due and payable to the certifying party in connection with the Work and Materials as of such date have been paid in full and that the certifying party waives, releases, or relinquishes any lien or security interest or that all liens have been bonded around upon such payment in full. Contractor's right to receive its final payment shall be conditioned upon, in addition to the foregoing and the other provisions of this Agreement, a final lien waiver, in the form attached as Exhibit P executed by Contractor and a final lien waiver from each Major Subcontractor and proof of payment to each vendor or supplier of Materials where the cost of the Material supplied by such vendor or supplier exceeds One Hundred Thousand ($100,000.00) in the aggregate.
Owner shall have the right to verify and inspect any Work performed prior to payment being due and payable. If, after such verification and inspection, Owner determines that the Application for Payment does not properly reflect such Work and Materials, Owner may elect not to pay all or any portion of such Application for Payment until it determines, in its reasonable discretion, that such Work and Materials have been performed, provided that Contractor shall have the right to dispute such determination in accordance with Article 11 hereof and Owner shall pay any undisputed amounts in accordance with this Section 3. In furtherance thereof, when Contractor believes that it has completed such Work and Materials, Contractor shall resubmit the information required pursuant to this Section 3.2.2. The Owner acknowledges and agrees that time is of the essence with respect to disputing any portion of any Application for Payment and, consistent with this Agreement, the Parties will work in good faith to resolve any dispute as to any Application for Payment.
3.3 Applications for Payment. Contractor shall issue monthly progress Applications for Payment based on Work and Materials performed and in accordance with the Milestone Payment Schedule in Exhibit M. Contractor shall deliver to Owner the information and documentation required pursuant to Section 3.2.2. Owner shall pay each portion of each Application for Payment within thirty (30) Days after the Application for Payment first is delivered to Owner or, as to any portion of the Application for Payment that is disputed under Section 3.2.2, no later than later ten (10) Business Days after resolution of such dispute in accordance with Section 3.2.2 (or within 30 Days after the relevant Application for Payment is delivered to Owner, if later). For the initial deposit payment due at execution of this Agreement, Owner shall pay Contractor within seven (7) Days of such execution.
Interest. Payments due under this Agreement not made when due shall incur interest at the rate of ten percent (10.0%) per annum or the maximum legal rate permitted by Law, whichever is less.
ARTICLE 4
COMMENCEMENT
Contractor shall complete any portion of the Work contained in a Limited Notice to Proceed executed by the Parties in relation to the Project (a "LNTP") in accordance the terms of such LNTP. Except with respect to work performed under the LNTP and except for Work to be performed by Contractor in advance of receipt of a written notice to proceed with construction, as contemplated by Exhibit C (the "Notice to Proceed"), Contractor shall not proceed with any portion of the Work until Contractor receives from Owner the Notice to Proceed. Contractor's obligation to commence and perform all the Work as following provision of the Notice to Proceed shall commence upon Contractor's receipt of the Notice to Proceed. If the Notice to Proceed is not issued and delivered by Owner to Contractor on or before the date provided therefor in Exhibit C, then such failure to timely issue the Notice to Proceed shall not constitute a breach of this Agreement but shall be a Material Event and, among other things, the Project Schedule shall be extended by the number of Days between such date and the date on which the Notice to Proceed is 12 4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 issued hereunder. By mutual agreement of the Parties in a signed Change Order or other written agreement signed by the Parties, the Parties may extend the date by which the Notice to Proceed must be delivered hereunder beyond the date provided therefor in Exhibit C. If the Notice to Proceed is not issued by the date set forth in Exhibit C as the same may be extended, then the Parties shall have no further obligation or liability to each other under this Agreement, unless the Parties shall otherwise agree; and, this Agreement may be terminated effective upon delivery by one Party to the other Party of a written termination notice within 120 days after the last date for issuance of a Notice to Proceed pursuant to Exhibit C Notwithstanding same, Owner shall owe Contractor all amounts owed under any executed LNTP between the Parties.
ARTICLE 5
COVENANTS, REPRESENTATIONS AND WARRANTIES
5.1 Representations and Warranties of Contractor
5.1.1. Organization: Authority. Contractor is a corporation duly organized, validly existing in good standing under the laws of the State of Delaware and is qualified and licensed to do business in the state in which the Site is located and where the Work is being performed. Contractor has all necessary power, licenses and authority to execute, deliver, and perform its obligations under this Agreement; the execution, delivery and performance by Contractor of this Agreement have been duly authorized by all necessary action on its part; and, this Agreement has been duly and validly executed and delivered by Contractor and constitutes the legal, valid and binding obligation of Contractor and is enforceable against such Party in accordance with its terms.
5.1.2 No Violation. Contractor is not currently in breach of, in default under, or in violation of, and the execution and delivery of this Agreement and the performance of its obligations hereunder will not constitute or result in any breach of, default under, or violation of, any Law or the provisions of Contractor's organizational documents or any agreement or instrument to which Contractor is bound or to which its assets are subject, which breach, default or violation could reasonably be expected to have a material adverse effect upon the ability of such party to observe the provisions of, and to perform its obligations under, this Agreement.
No Litigation. No suit, claim, action, arbitration, or legal, administrative or other proceeding is pending or, to the best of Contractor's knowledge, threatened that would affect the validity or enforceability of this Agreement with respect to Contractor, the ability of Contractor to fulfill its commitments hereunder in any material respect, or that could result in any material adverse change in the business or financial condition of Contractor.
5.1.4 No Conflicting Interest. Contractor acknowledges and agrees that it does not have and agrees that it shall not acquire any interest, direct or indirect, which would represent a conflict of interest in any manner or degree with the performance of the Work or any other obligations of Contractor under this Agreement.
5.1.5 Intellectual Property Rights.
(a) Contractor represents and warrants to Owner that (i) it owns or is licensed or is otherwise lawfully permitted to use any and all Intellectual Property and to grant to Owner a license to use the Intellectual Property in connection with the Project. As used herein, "Intellectual Property" means each of the inventions, processes, know-how, trade secrets, Design, technical expertise, copyrights, trademarks, patents and other intellectual property relating to the design, engineering, manufacture, sale, 13 4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 supply, importation, assembly, construction, installation, commissioning, start-up, testing, servicing, repair and use of the Materials and the Work owned by the Contractor and incorporated into the Project. (b) Owner and Contractor acknowledge and agree that, pursuant to the terms of this Agreement, solely in connection with the Project, Owner is being provided and shall have access to certain intellectual property rights that are (i) now or hereafter owned or controlled by Contractor, including the Design, (ii) created or developed by Contractor pursuant to the performance of Work, including pursuant to any LNTP, or (iii) acquired by Contractor as part of acquiring the Materials (collectively, "Intellectual Property Rights"). As between Owner and Contractor, Contractor is and shall be the sole owner of the Intellectual Property and the Intellectual Property Rights, subject to the license granted to Owner by this Agreement. Owner and Contractor agree that the Agreement provides Owner and its representatives with an irrevocable, permanent, transferable, nonexclusive, royalty-free license to use the Intellectual Property Rights solely in connection with the Project, including in completing construction of, operating, transferring, financing, maintaining, rebuilding, and expanding the Project. For the avoidance of doubt, the Parties acknowledge and agree that the provisions of this Section 5.1.5(b) shall not limit in any way the ownership rights of Owner in any and all written and electronic work product supplied by Contractor hereunder as a 'work for hire' under U.S. Copyright law. Contractor shall not be liable for, and Owner shall defend, indemnify, and hold Contractor harmless against any Liabilities incurred by Contractor as a result of Owner's use or modification of any Intellectual Property Rights without the involvement or consent of Contractor, except for those uses to which Contractor has expressly granted consent in this Section 5.1.
5.2 Representations and Warranties of Owner
5.2.1 Organization; Authority. Owner is a California municipal corporation and charter city. Owner has all necessary power and authority to execute, deliver, and perform its obligations under this Agreement; the execution, delivery and performance by Owner of this Agreement have been duly authorized by all necessary action on its part; and, this Agreement has been duly and validly executed and delivered by Owner and constitutes the legal, valid and binding obligation of Owner and is enforceable against such Party in accordance with its terms.
5.2.2 No Violation. Owner is not currently in breach of, in default under, or in violation of, and the execution and delivery of this Agreement and the performance of its obligations hereunder will not constitute or result in any breach of, default under, or violation of, any Law or the provisions of Owner's organizational documents or any agreement or instrument to which Owner is bound or to which its assets are subject, which breach, default or violation could reasonably be expected to have a material adverse effect upon the ability of such party to observe the provisions of, and to perform its obligations under, this Agreement.
5.2.3 No Litigation. No suit, claim, action, arbitration, or legal, administrative or other proceeding is pending or, to the best its knowledge, threatened that would affect the validity or enforceability of this Agreement, the ability of Owner to fulfill its commitments hereunder in any material respect, or that could result in any material adverse change in the business or financial condition of Owner.
5.2.4 No Hazardous Materials. To Owner's knowledge, there are no Hazardous Materials present on the Site other than those disclosed in Exhibit B.
5.2.5 Available Funds. Owner has, and will have, available all the funds necessary to pay Contractor the Contract Price, and any other amount owing to Contractor under this Agreement, at the times when such amounts becomes payable under this Agreement. 14 4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69
5.2.6 Engagement of Contractor. Owner has the right to authorize and engage Contractor to construct the Project on the Site.
5.3 Covenants of Contractor.
5.3.1 Payment to Subcontractors: Prevailing Wage Requirement. Contractor shall comply with all legal and contractual requirements applicable to Contractor paying Subcontractors.
Additionally, Contractor acknowledges that the Project constitutes a public work and is subject to the prevailing wage and other requirements imposed by Sections 1720-1861 of the California Labor Code; Contractor covenants to and shall comply with and satisfy all such requirements, as and to the extent applicable.
5.3.2 Notice of Delay. If Contractor's Work is delayed for any reason, Contractor shall (a) as soon as practicable notify Owner in writing of the nature, cause, date of commencement thereof, and the anticipated extent of any delay or interruption; (b) immediately exercise all reasonable efforts to minimize the delay; (c) provide a schedule make up plan if delay is not a Material Event; and (d) notify Owner of the cessation or termination of such delay. Failure to provide such required notice shall constitute a waiver of any claims associated therewith.
5.3.3 Title. Title to the Project, including to the Work and Materials, shall pass to Owner on the Final Completion Date. Contractor covenants that when legal title to and ownership of the Work and Materials passes to Owner, such Work and Materials shall be free and clear of any and all liens, claims, security interests or other encumbrances.
5.4 Covenants of Owner.
5.4.1 Access Rights. Subject to satisfaction by Contractor of the restrictions and other provisions in the applicable Permits and Law, Owner shall provide to Contractor (including its Subcontractors) access to the Site in order for Contractor to perform the Work in accordance with the Project Schedule and as contemplated in this Agreement.
5.4.2 Payment of Contract Price. Owner shall pay Contractor for the Work in accordance with this Agreement, including Article 3.
5.4.3 Good Faith Cooperation. Owner will use commercially reasonable efforts to respond promptly and in good faith to requests of Contractor made of Owner in connection with the performance of the Work.
5.4.4 Compliance with Laws. Owner shall comply with all Laws in performing Owner's obligations under this Agreement.
ARTICLE 6
SCOPE CHANGES
6.1 Changes in the Work.
During the term of this Agreement, either Contractor or Owner may suggest to the include an estimate of the actual costs or the savings of actual costs associated with such alteration or change 15 4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 and an estimate of the changes to the Project Schedule caused by such alteration, together with an explanation of the basis for such estimate. The explanation of the basis for a change in the Contract Price shall include, as appropriate, relevant cost information regarding the portion of the Contract Price that is affected by the requested change, vendor pricing for the cost of Materials added or deleted by such change, and estimated quantities of Materials and labor added or deleted by such change. Each Change Order must specifically set forth the scope of the extra Work, Materials or change, the cost to be added or subtracted from the Contract Price, and the anticipated effect of the Change Order on the Milestone Payment Schedule and the Project Schedule. Subject to Section 6.1.2, or as set forth in Section 6.1.3, no change shall be incorporated in the Work unless expressly agreed to in writing by Owner, acting in its sole and absolute discretion. Payment for each Change Order is due as provided in the relevant Change Order or, in the absence of a payment provision, upon completion of Work performed under the Change Order and receipt by Owner of Application for Payment for such Work. Upon execution by the Parties of any Change Order, such Change Order and any additional Work and Materials authorized by said Change Order shall be made part of this Agreement.
6.1.2 Contractor is not authorized to make any changes to the Scope of Work, and Owner shall be under no obligation to pay for any change in the Work or Materials, unless such change has been expressly approved by Owner in writing in accordance with this Section 6.1 of this Agreement or is made by Contractor in the event of an emergency to prevent, avoid or mitigate injury, damage or loss to life or property.
6.1.3 Upon the occurrence of a Material Event that temporarily or permanently prevents Contractor from performing the Work or which adversely affects the cost or time to perform the Work to an actual, demonstrable, and adverse extent, Contractor shall be entitled to an equitable Change Order with respect to the Contract Price and/or the Project Schedule. For the purposes of this Agreement, a "Material Event" for Contractor shall mean and refer only to, and only to the extent of:
(a) delays or interference affecting Contractor's Work resulting from the acts or failures to act of (i) the Owner or (ii) third parties, including a Governmental Authority, or the Utility, not under the control of Contractor or its Subcontractors, unless such third parties are Contractors' Subcontractors, suppliers, or similar and such Subcontractor, supplier or similar is impacted during the execution of its work;
(b) the occurrence of a Force Majeure Event;
(c) subject to Contractor's fulfillment of its obligations in Section 2.9.
Hazardous Materials existing at a Site in violation of Environmental Laws and not brought on the Site by Contractor or any of its Subcontractors, excluding the presence at or in the Site of agricultural pesticides (or pesticide residues or constituents) in such quantities or concentrations as reasonably would be expected to be present on or in lands that are in active use and historically have been used as crop lands; (d) the suspension of the Work in whole or in part by Owner for convenience; (e) the discovery of an Unexpected Site Condition;
(f) an Owner Event of Default;
(g) delays caused by the Utility or Owner, or infrastructure improvements or system upgrades required by the Utility or Owner in connection with the interconnection of the Project to the Distribution System;
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DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 material alteration of Contractor's permitting costs, means, methods, costs, or standards for performing the Work directly caused and necessarily required by changes in applicable Laws after the Effective Date (including change in interpretation of Laws by any Governmental Authority, except for changes known or which should have reasonably been anticipated by Contractor prior to the Effective Date;
(i) any delay in obtaining, or any failure to obtain, or the suspension, nonrenewal or cancellation of, any Governmental Authorization, or other problems associated with the issuance of any Governmental Authorization or the application therefor; without limiting Owner's discretion not to issue a Notice to Proceed, the failure of Owner to issue the Notice to Proceed by the date specified therefor on the Project Schedule; the failure of Owner to timely obtain and provide to Contractor any Permit required to be obtained by Owner in accordance with this Agreement; or any other event or circumstance for which another provision of the Agreement expressly requires Owner to provide, or expressly entitles Contractor to, a Change Order.
ARTICLE 7
INDEMNIFICATION
Contractor's General Indemnity. Subject to Article 8, to the fullest extent of the Law, Contractor shall defend, indemnify and hold harmless, Owner, its subsidiaries and its Affiliates and each of their respective successors, assigns, elected officials, officers, directors, shareholders, managers, members, partners, employees, representatives and agents (each, an "Owner Indemnified Party") from and against any and all third-party suits, actions, losses, damages, injuries, liabilities, claims, demands, penalties, assessments, interests and causes of action ("Claims"), expenses (including all reasonable and documented expenses of litigation, court costs, expert witness fees and attorneys' fees), for (a) bodily injury or death to any person, including employees of Contractor; (b) damage to any property; and (c) breach or violation of any obligation or duty of Contractor under this Agreement or under Law, and in each of the instances described in the preceding clauses, to the extent caused by the negligence, gross negligence, willful misconduct, or fraud of Contractor, its Subcontractors, agents or employees, provided that Contractor's indemnity pursuant to this Section 7.1 shall be reduced in proportion to any negligence, gross negligence, willful misconduct, or fraud of any Owner Indemnified Party that contributed to cause such injury or damage. The Contractor's obligations under this Section 7.1 shall survive the expiration or termination of this Agreement. Contractor's indemnity obligations under this Agreement shall apply even if due in part to any concurrent negligence or other fault, breach of contract or warranty, or strict liability without regard to fault of or by an Owner Indemnified Party. The Contractor's indemnity obligations under this Section 7.1 shall terminate and expire on the carlier of: (A) the third (3"d) anniversary of the Final Completion Date, as to any indemnifiable claim unless notice of such claim is provided to Contractor prior to such third (3) anniversary provided further that if Owner does not have knowledge of such Claims until after such third (3) anniversary but prior to the fourth (4) anniversary, then Owner shall have one month from first obtaining such knowledge to provide notice of such claim; and (B) the date of repose or expiry set forth in the applicable statute of limitations.
7.1.1 Contractor's Environmental Indemnity. Subject to Article 8, Contractor shall have liability for, and Contractor agrees to indemnify, defend and hold harmless, the Owner Indemnified Party against and from any breach by Contractor of Contractor's obligations under Section 2.9. The Contractor's indemnity obligations under this Section 7.1.1 shall survive the initial expiration or termination of this Agreement but shall terminate and expire on the second anniversary of the Final Completion Date. 17 4816-8336-3833v2/022283-0548
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7.2 Owner's Indemnity. Subject to Article 8, Owner shall defend, indemnify, and hold harmless Contractor, any Subcontractors, and their respective Affiliates, and each of their respective successors, assigns, officers, directors, shareholders, managers, members, partners, employees, representatives and agents (each a "Contractor Indemnified Party") from and against any and all third party suits, actions, losses, damages, injuries, claims, liabilities, demands, penalties, assessments, interests, causes of action, expenses (including reasonable and documented attorney's fees, of any character, type, or description, including all actual expenses of litigation, court costs, and attorney fees), for bodily injury or death to any person, or damage to any property to the extent caused by the negligence, gross negligence, willful misconduct, or fraud of any Owner Indemnified Party, which act or omission arises out of or is connected with this Agreement or the transactions contemplated by this Agreement, provided that Owner's indemnity pursuant to this Section 7.2 shall be reduced in proportion to any negligence, gross negligence or willful misconduct or fraud of the Contractor Indemnified Party. The Owner's obligations under this Section 7.2 shall survive expiration or termination of this Agreement. The Owner's indemnity obligations under this Section 7.1 shall terminate and expire on the earlier of: (A) the third (3d) anniversary of the Final Completion Date as to any indemnifiable claim unless notice of such claim is provided to Owner prior to such third (3) anniversary provided further that if Contractor does not have knowledge of such Claims until after such third (3d) anniversary but prior to the fourth (4"') anniversary, then Contractor shall have one month from first obtaining such knowledge to provide notice of such claim; and (B) the date of repose or expiry set forth in the applicable statute of limitations.
7.2.1 Owner's Environmental Indemnity. Subject to Article 8, Owner shall have liability for, and Owner agrees to indemnify, defend and hold harmless, each Contractor Indemnified Party against and from any liabilities that arise from or are related to Owner's obligations under Section 2.9 or, subject to Section 2.9.2, with respect to any pre-existing Hazardous Materials or any other Hazardous Material at the Site that were not used, generated or released by Contractor or any of its Subcontractors.
The Owner's indemnity obligations under this Section 7.2.1 shall survive initial expiration or termination of this Agreement but shall terminate and expire on the second anniversary of the Final Completion Date.
Taxes. Contractor shall be responsible for and shall pay (or cause to be paid all Taxes imposed upon Contractor's net income, all payroll taxes of Contractor, and all import taxes, customs duties, and tariffs on its acquisition of Materials. All other taxes, fees, levies, or other governmental charges of any kind arising in connection with the Work or any Materials procured or supplied hereunder shall be the exclusive responsibility of Owner, including sales, use or transfer taxes on the Work or any Materials or the sale of the Project or any component to Owner. Contractor agrees to indemnify, defend, and hold harmless each Owner Indemnified Party against all Taxes, penalties, and interest resulting from Contractor's failure to remit properly Taxes, fees, levies, or other governmental charges for which Contractor is responsible under this Section 7.3. Owner agrees to indemnify, defend, and hold each Contractor Indemnified Party against all Taxes, penalties, and interest resulting from Owner's failure to remit properly Taxes, fees, levies, or other governmental charges for which Owner is responsible under this Section 7.3. Contractor shall cooperate with the Owner in its application for any tax exemption certificates; and Contractor shall be entitled to rely on any tax exemption certificates for sales tax exemption on photovoltaic generating and related equipment (e.g. - foundations, posts, racks, modules, inverters, wiring) provided by Owner to Contractor prior to execution of this Agreement with respect to the Project. Among other things, the Contract Price has been established based on the availability and applicability of sales tax exemptions for Materials and Work (services) provided to the Project.
7.4 Notification. Each Party shall promptly notify the other in writing of any claims from any third party that may be covered by the indemnities set forth in this Article 7.
7.5 Proceedings. The indemnified Party shall give the indemnifying Party such assistance as the indemnifying Party may reasonably require in such defense, and shall have the right to be represented 18 4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 in such defense by counsel of its own choice. If the indemnifying Party fails to defend diligently such suit or proceeding, the indemnified Party may, in its reasonable discretion, either defend such suit or proceeding or settle the claim which is the basis thereof, without the consent of the indemnifying Party, without relieving the indemnifying Party of its obligations under this Article 7, as applicable, and in either case the indemnifying Party shall reimburse the indemnified Party for its expenses, court costs and reasonable and documented attorneys' fees.
7.6 Affiliates. The waivers and disclaimers of liability, releases from liability, limitations and apportionments of liability and the protections of the indemnity and hold harmless obligations expressed in this Agreement shall extend to each Party and its Affiliates and its and their respective successors, assigns, elected officials, officers, directors, shareholders, managers, members, partners, employees, agents and representatives.
7.7 Insurance. Except as otherwise provided in this Article 7, in the event that a Party is obligated to indemnify and hold the other Party and its successors and assigns harmless under this Article I, the amount owing to the indemnified Party will be the amount of the indemnified Party's damages net of any "net insurance proceeds" received by the indemnified Party following a reasonable effort by the indemnified Party to obtain such insurance proceeds. "Net insurance proceeds" shall be the gross and actual insurance proceeds after deducting all reasonable and documented costs, fees, and expenses incurred in recovering insurance proceeds.
ARTICLE 8
LIMITATION OF LIABILITY
8.1 NO CONSEQUENTIAL DAMAGES. NEITHER OWNER NOR CONTRACTOR,
INCLUDNG, IN EACH CASE, THEIR RESPECTIVE SUCCESSORS, ASSIGNS, SHAREHOLDERS,
DIRECTORS, OFFICERS, AGENTS, EMPLOYEES, AND REPRESENTATIVES, SHALL BE LIABLE
TO THE OTHER FOR CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, OR
INCIDENTAL LOSSES OR DAMAGES, INCLUDING FROM LOSS OF GOODWILL, OR INCREASED COST OF CAPITAL, OR LOSS OF PROFIT OR REVENUE; AND EACH OF OWNER
AND CONTRACTOR HEREBY RELEASES THE OTHER PARTY AND EACH OF THE OTHER
PARTY'S RESPECTIVE SUCCESSORS, ASSIGNS, SHAREHOLDERS, DIRECTORS, OFFICERS, AGENTS, EMPLOYEES, AND REPRESENTATIVES FROM ANY SUCH LIABILITY. HOWEVER, THE LIMITATIONS ON DAMAGES IN THIS SECTION 8.1 SHALL NOT APPLY WITH RESPECT TO THE INDEMNIFICATION OBLIGATIONS OF THE PARTIES PURSUANT TO ARTICLE 7
WITH RESPECT TO DAMAGES PAYABLE TO A THIRD PARTY FOR CLAIMS MADE BY THE THIRD PARTY FOR PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE.
8.2 Limitation. Notwithstanding anything to the contrary in this Agreement, it is agreed and understood that, except in the event of Contractor willful misconduct or fraud, the total liability of Contractor under this Agreement shall not in the aggregate exceed fifty percent (50%) of the Contract Price, or, if less, the amount tendered and paid to the Contractor hereunder, whether or not such liability is claimed in contract, tort (including negligence and strict liability), warranty, or any other legal or equitable theory; provided, however, that there shall be no cap or limit on the liability of Contractor for (i) any fraud, willful misconduct, or gross negligence on the part of Contractor or its Subcontractors in the course of providing any Work Contractor is required to provide under this Agreement, or (ii) with respect to the indemnification obligations of Contractor pursuant to Article 7, to the extent of claims of third parties for personal injury, death, or property damage. 19 4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 ARTICLE 9
DEFAULT; REMEDIES
9.1 Event of Default. The occurrence of any one or more of the following events shall constitute an event of default ("Event of Default") by a Party (the "Defaulting Party"):
9.1.1 A failure by a Defaulting Party to pay any amount due hereunder (except to the extent such amounts are being disputed in good faith) when, after notice by the other Party (the "Non- Defaulting Party") to the Defaulting Party is delivered in accordance with Section 14.5 hereof, such failure is not cured by payment of the amount due within ten (10) Days after the date that such notice is delivered to the Defaulting Party;
9.1.2 Actual fraud or willful misconduct by the Defaulting Party in connection with this Agreement;
9.1.3 Dissolution or liquidation of the Defaulting Party; provided that division into multiple entities shall not constitute dissolution or liquidation; Assignment of this Agreement or any of its rights hereunder by the Defaulting Party for the benefit of its creditors;
9.1.5 The filing of a petition in voluntary bankruptcy or insolvency or for reorganization or arrangement of the Defaulting Party under the bankruptcy laws of the United States or under any insolvency act of any state, or the defaulting Party voluntarily taking advantage of any such law or act by answer or otherwise.
9.1.6 The filing of an involuntary case in bankruptcy or any proceeding under any other nsolvency law against the Defaulting Party as debtor or its parent or any other Affiliate that coul materially impact the Defaulting Party's ability to perform its obligations hereunder; provided, however that the Defaulting Party does not obtain a stay or dismissal of the filing within one hundred eighty (180) Days of the initial filing.
9.1.7 If any representation or warranty made by the Defaulting Party in this Agreement proves to have been false or misleading in any material respect when made or ceases to remain true during the term of this Agreement if such cessation would reasonably be expected to result in a material adverse impact on the Non-Defaulting Party, it shall constitute an Event of Default unless cured within sixty (60) Days after the date of delivery of written notice by the Non-Defaulting Party to the Defaulting Party.
9.1.8 Except as provided in Sections 9.1.1 or 9.1.7, or 9.1.10, a failure by the Defaulting Party to fully and promptly perform any of its obligations hereunder and continuation of such failure for a period of thirty (30) Days following the date of delivery of notice of such failure given by the Non- Defaulting Party to the Defaulting Party; provided, this provision does not apply to Contractor's failure to meet the Project Schedule, such failure being addressed in below.
9.1.9 A failure by Contractor to achieve either Substantial Completion or Final Completion of the Project within sixty (60) Days after the date therefor designated in the then-current Project Schedule, unless such failure is excused under this Agreement due to an Owner Event of Default, a Material Event, or otherwise.
9.1.10 Contractor ceases performing a substantial portion of its business, or a substantial portion of such business is suspended or is not being performed, whether voluntarily or involuntarily, 20 4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 which, in either case, has a material adverse effect on Contractor's ability to perform its obligations under this Agreement.
9.2 Remedies upon Event of Default.
9.2.1 Upon the occurrence of an Event of Default by the Defaulting Party (after any applicable cure period described in Section 9.1), the Non-Defaulting Party shall have the following rights:
(a) to terminate this Agreement by written notice to the Defaulting Party; (b) to suspend performance of its obligations and duties hereunder (other than payments then due and payable) upon written notice to the Defaulting Party; and (c) to pursue any other remedy given under this Agreement or now or hereafter existing at Law or in equity or otherwise, including, in the case of Contractor, recovery of any termination or remobilization costs incurred as a result of an Event of Default of Owner. In the event that a Non- Defaulting Party elects to terminate this Agreement due to an Event of Default by the other, Defaulting Party, the Defaulting Party shall be liable for all actual damages and costs incurred by the Non-Defaulting Party arising from the Event of Default, subject to Article 8.
9.2.2 In addition to those remedies available to Owner pursuant to Section 9.2.1, in the event of an Event of Default of Contractor, Owner may, at its option, upon termination of this Agreement pursuant to Section 9.2.1, take possession of the Project and any or all Work and all Materials (whether at the Site or otherwise) for which Owner has paid Contractor in accordance with the provisions of Article 3.
If Owner makes such election, Contractor shall assign and transfer to Owner all of Contractor's right, title in, and interest to Contractor's contracts with its Subcontractors (including all of the warranties and guarantees (and all claims thereunder)) with respect to the Materials or any other parts of the Project that have been paid by Owner. In the event of any termination of the Agreement pursuant to this Section 9.2.2, Owner may, without prejudice to any other right or remedy it may have, at its option, finish the Work by whatever method Owner may deem expedient (subject to Section 9.4). Subject to Article 8, Owner shall thereafter have the right to actual damages from Contractor in the sum of the costs incurred by Owner that exceed the Contract Price to finish the Work, and other actual damages flowing from the Event of Default.
9.3 Exclusive Remedy. Notwithstanding the remedies set forth in Sections 9.2.1 and 9.2.2 or elsewhere in this Agreement, with respect to any Event of Default as to which Contractor is the Defaulting Party for which an exclusive remedy is expressly provided in this Agreement, for example, as set forth in Article 12 (for breach of Work Warranty), Owner shall be limited to such exclusive remedy. Duty to Mitigate. Each Party agrees that it has a duty to mitigate damages and covenants that it will use reasonable efforts to minimize any damages it may incur as a result of the other Party's performance or non- performance of this Agreement.
9.4 Owner's Right to Suspend.
9.4.1 In addition to any other right that Owner may have under this Agreement or at Law, Owner may, at any time after no less than ten (10) Days' written notice to Contractor specifying the effective date of the suspension, require Contractor to suspend the Work, or any portion thereof. Upon receipt of such notice, Contractor will take reasonable steps to suspend the Work as soon as reasonably possible and to secure the Site for the expected period of the suspension. Owner shall remain liable for all costs and expenses incurred by Contractor through the effective date of suspension, and all other amounts due to Contractor under this Agreement, if any, including any demobilization, standby, and remobilization costs, whether or not Owner instructs Contractor to resume work, all subject to the provisions of this Section 9.5. The suspension shall not exceed sixty (60) consecutive Days or one hundred (120) Days in the aggregate. Without limiting this Section 9.5.1, if the suspension exceeds either of these, such suspension shall be deemed a termination for convenience by Owner in accordance with Section 9.6. 21 4816-8336-3833v2/022283-0548
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9.4.2 Upon providing written notice under Section 9.5.1, Owner shall arrange to immediately discuss with Contractor the specific requirements of the suspension and whether or not Owner anticipates that demobilization, remobilization or idle equipment or personnel will occur as a result of the suspension.
9.4.3 Upon receiving notice under Section 9.5.1, Contractor shall discontinue the Suspended Work, place no further purchase orders, or enter into additional or further subcontracts with respect to the Suspended Work, and promptly make reasonable efforts to obtain suspension terms satisfactory to Owner with respect to all purchase orders, subcontracts, supply contracts, and rental agreements related to the Suspended Work. Contractor shall continue to perform all other portions of the Work that have not been suspended by Owner.
9.4.4 Where requested by Owner, Contractor shall advise Owner of:
(a) the number of Contractor's Personnel and Subcontractor personnel made idle by the suspension;
(b) the labor costs resulting from Contractor's Personnel and Subcontractor personnel made idle by the suspension;
transportation for Contractor's Personnel and Subcontractor personnel released during the suspension;
(d) the equipment made idle and associated equipment costs resulting from the suspension; and
any other costing, labor, Materials, or equipment information relating to the suspension that Owner may require.
9.4.5 Owner may at any time authorize resumption of the Suspended Work or any part thereof, by giving Contractor reasonable notice specifying the part of the Suspended Work to be resumed and the effective date of such resumption. Contractor shall resume the Suspended Work on the date and to the extent specified in the notice.
9.4.6 Contractor shall use, as appropriate in Contractor's sole discretion, its employees, equipment, and Materials in such manner, and take such other steps as may be necessary or desirable to minimize the costs associated with the Suspended Work. During the period of Suspended Work, Contractor shall secure and protect the Suspended Work and all Materials and equipment to be used or incorporated therein.
9.4.7 In the event of any suspension of the Work pursuant to this Section 9.5, the Project Schedule shall be equitably extended for at least as many Days as the Work has been suspended and such additional period as necessary to allow for reasonable site mobilization.
9.5 Owner's Termination for Convenience. Owner may terminate this Agreement at any time upon ninety (90) Days' written notice to Contractor, without further liability except as provided herein.
If Owner exercises its termination right under this Section 9.6, as Contractor's sole remedy for payment of the Work for such termination, Owner shall reimburse Contractor for (i) the corresponding value of the full Contract Price for all Work completed and all partial Work in progress, (ii) the amount equal to fifteen percent (15%) multiplied by the total Contract Price less the amount paid to Contractor hereunder (including amounts paid pursuant to Section 9.6(i), but excluding amounts paid pursuant to Sections 9.6(ii) through 22 4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 (iv), (1li) Contractor's demobilization costs and associated labor time, and (iv) any reasonable, documented third-party costs incurred by Contractor in connection with Contractor's performance under this Agreement, including, without limitation, cancellation fees associated with cancelling and terminating Subcontractors, plus a markup of fifteen percent (15%) in the amounts set forth in subclause (iv). Upon such termination, Owner may, at its option, upon payment to Contractor for all undisputed amounts payable pursuant to the preceding sentence, take possession of the Project and any or all Work and all such Materials (whether at the Site or otherwise). If Owner makes such election, Contractor shall assign and transfer to Owner all of Contractor's right, title in, and interest to Contractor's contracts with its Subcontractors (including all of the warranties and guarantees (and all claims there under, except to the extent a claim relates to a liability of Contractor that is not being released)) with respect to the Materials or any other part of the Project. Any amounts paid shall not include any costs incurred by Contractor after the effective date of termination that Contractor reasonably could have mitigated.
9.6 Contractor's Right to Suspend Work Upon Owner Payment Event of Default; Certain Payment Disputes. In the event that (a) Owner has not paid an undisputed portion of an Application for Payment within fifteen (15) Days after the due date for such Application for Payment as provided in Section 3.3. Contractor may, after giving written notice to Owner of such late payment, suspend the Work, or any portion thereof. Contractor shall resume the suspended Work within three (3) Days of the date that Owner makes such payment, and shall use its employees, equipment and Materials in such manner, and take such other steps as may be necessary or desirable to minimize the costs associated with the suspended Work. During the period of suspended Work, Contractor shall secure and protect the suspended Work and all Materials and equipment to be used or incorporated therein. For any period of time that Contractor is permitted to suspend the Work pursuant to this Section 9.7, Contractor shall be granted an equitable extension to the Project Schedule, based upon the impacts that such suspension has on the Project Schedule.
9.7 Termination for Convenience. Each Party shall have the right to terminate this Agreement for convenience and without cause, without any liability to the other Party, upon written notice delivered to the other party within 60 days after the Effective Date.
ARTICLE 10
FORCE MAJEURE
10.1 Definition.
10.1.1 "Force Majeure Event" means, subject to Section 10.1.3, any act or event that delays or prevents a Party from performing all or a portion of its obligations under this Agreement, or from complying with all or a portion of the conditions under this Agreement if such act or event, despite the exercise of reasonable efforts, cannot be avoided by and is beyond the reasonable control of, and without the fault or negligence of, the Party relying thereon as justification for such delay, nonperformance, or noncompliance.
10.1.2 Without limiting the generality of the foregoing, so long as the following events satisfy the requirements set forth in Section 10.1.1, a Force Majeure Event may include, subject to Section
10.1.3: (i) natural phenomena, such as storms, tornadoes, hurricanes, floods, lightning, and seismic activity, including earthquakes and volcanic eruptions; (ii) snow, frost, or other weather conditions that cause unsafe working conditions (especially on rooftop projects) or unworkable soil conditions or an inability to safely access the Site or all installed equipment), (iii) explosions or fires arising from lightning or other causes unrelated to the acts or omissions of the Party seeking to be excused from performance; (iv) acts of war or public disorders, civil disturbances, riots, insurrection, sabotage, pandemic, epidemic, quarantine, terrorist acts, or rebellion; (v) national or regional strikes or national or regional labor disputes; (vi) action or failure 23 4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 to act by a Governmental Authority, including a moratorium on any activities related to this Agreement or the failure to sign-off, approve, or inspect the Work, provided that Contractor has performed the Work (a) in compliance with all Law, and (b) in accordance with the terms of this Agreement and sought the signoff, approval, and inspection of the Work, in a diligent manner, using commercially reasonable efforts, and in accordance with Prudent Industry Practice; (vil) any failure or unreasonable delay by Owner or the Utility with respect to review, sign-off, response, approval, or inspection of the Work, or changes to and/or commenting on, any of the plans, specifications, designs, processes, or other similar documents with respect to such Work, provided that Contractor (a) has performed the Work in compliance with, or, as applicable, the plans, specifications, designs, processes, or other similar documents provided by Contractor comply with, all Law, the terms of this Agreement and (b) as applicable, has sought the signoff, approval, or inspection of the Work, plans, specifications, designs, processes, or other similar documents in a diligent manner, using commercially reasonable efforts, and in accordance with Prudent Industry Practice; (vili) any environmental, health or safety condition, occurrence or event (including the presence or release of any Hazardous Materials) that causes the Project or the Site to be shut down or Work to be discontinued to protect human health or property; and (ix) any military action or action by any Governmental Authority that restricts or limits access to the Site beyond what is contemplated in this Agreement.
10.1.3 Notwithstanding the foregoing, the term Force Majeure Event does not include (i) economic hardship or lack of funds, (ii) changes in market conditions, including a general deterioration in the economy or in the economic conditions prevalent in the industry which the Party operates, (111) inability of Contractor to obtain labor, materials, supplies or equipment to design or construct the Project, equipment failures or acts or omissions of agents or Subcontractors of Contractor, except to the extent such acts or omissions arise from a Force Majeure Event, (iv) any financial or payment obligations of either Party whether arising under this Agreement or otherwise, (v) if and to the extent the Party claiming a Force Majeure Event has caused or contributed to the applicable act, event or condition by its fault or negligence or has failed to use commercially reasonable efforts to prevent or remedy such act, event, cause or condition and, so far as possible and within a reasonable time period, remove it; (vi) if the act, event, cause or condition is the result of a breach by the Party seeking to invoke Force Majeure of a Governmental Authorization or of any Laws; or (vii) any non-national Site-specific strike or labor action affecting Contractor exclusively.
10.1.4 As of the Effective Date, to the best knowledge of each Party, such Party can perform its obligations under this Agreement in accordance with its terms, notwithstanding the worldwide COVID-19 pandemic ("COVID Pandemic"') that has occurred and is continuing as of the Effective Date.
If, after the Effective Date, either Party is rendered wholly or partially unable to perform its obligations hereunder because of an effect of the COVID Pandemic that was not known as of the Effective Date or arose thereafter, the Parties acknowledge and agree that the affected Party shall not be precluded from claiming that a Force Majeure has occurred notwithstanding that the COVID Pandemic had occurred and was continuing as of the Effective Date, and the affected Party shall be excused from the performance affected thereby, subject to the terms of this Article X
10.2 No Liability if a Force Majeure Event Occurs. Notwithstanding anything to the contrary contained in this Agreement (but subject to the provisions of Section 10.1.3 of this Agreement) the obligations of Owner and Contractor will be excused in the event and to the extent Owner or Contractor, as applicable, is delayed or prevented from performing its obligations hereunder in whole or in part due to a Force Majeure Event. The Party rendered unable to fulfill any obligation by reason of a Force Majeure Event shall take all actions necessary to remove such inability with all due speed and diligence. The nonperforming Party will be prompt and diligent in attempting to remove the cause of its failure to perform, and nothing herein shall be construed as permitting that Party to continue to fail to perform after said cause has been removed; provided, however, the obligation to use due diligence shall not be interpreted to require resolution of labor disputes by acceding to demands of the opposition when such course is inadvisable in 24 4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 the discretion of the party having such difficulty. Except as otherwise specifically provided in this Agreement, neither Party shall be considered in breach or default of this Agreement if and to the extent that any failure or delay in the Party's performance of one or more of its obligations hereunder is caused by a Force Majeure Event. However, the occurrence and continuation of a Force Majeure Event shall not suspend or excuse the obligation of a Party to make any payments due prior to the Force Majeure Event.
Without limitation, the Project Schedule shall be updated equitably, upon the occurrence of a Force Majeure Event that interrupts or suspends the progress of the Work.
10.3 Notice; Due Diligence. A Party claiming a Force Majeure Event ("Claiming Party") shall: (i) provide oral notice as promptly as practicable followed by written notice to the other Party ("Non- Claiming Party") within seventy-two (72) hours after such Party becomes aware of such Force Majeure Event, giving a reasonably detailed written explanation of the event and an estimate of the expected duration and probable effect of the Force Majeure Event on the performance of that Party's obligations hereunder, (i1) use commercially reasonable efforts in accordance with Prudent Industry Practices to remedy the condition that prevents performance and to mitigate the effects of same in order to continue to perform its obligations under this Agreement, and (iii) provide the other Party with weekly status reports of all efforts to mitigate and remedy the Force Majeure Event.
10.3.1 If the Claiming Party has reason to believe that a Force Majeure Event will prevent it from performing its obligations under this Agreement for one (1) month or longer ("Extended Force Majeure Event"), it shall notify the Non-Claiming Party in writing within seven (7) Days from the beginning of said Force Majeure Event and shall submit its' plans for the remedy of the Force Majeure Event to the non-claiming Party within five (5) Days of such notification (a "Force Majeure Remedy Plan").
10.3.2 While the Force Majeure Remedy Plan is in effect, the Claiming Party shall provide (a) weekly status reports notifying the other Party of the steps that have been taken to remedy the Extended Force Majeure Event, and (b) the expected remaining duration of its inability to perform hereunder.
ARTICLE 11
DISPUTE RESOLUTION
11.1 Governing Law; Jurisdiction. This Agreement is governed by and shall be interpreted in accordance with the laws of the State of California, without regard to principles of conflicts of law.
Except as set forth in Section 11.2, any legal claim, suit, proceeding, or action hereunder shall be brought in a state or federal court of competent jurisdiction located in the State of California. By execution and delivery of this Agreement, each of the Parties hereby accepts for itself and in respect of its property, generally and unconditionally, the jurisdiction of the aforesaid courts and appellate courts lying therein.
11.2 Dispute Resolution. In the event of any dispute arising under this Agreement, within ten (10) Days following receipt of written notice from either Party identifying such dispute, the Parties shall meet, negotiate, and attempt, in good faith, to resolve the dispute quickly, informally and inexpensively. If the Parties are unable to resolve a dispute arising hereunder within ten (10) Days of initiating such discussions, or within fifteen (15) Days after notice of the dispute, either Party may seek any and all remedies available to it at law or in equity; provided however that if the dispute is a Technical Dispute, the Parties agree that, before either Party may seek any and all remedies available to it at law or in equity, Section 11.3 shall apply.
11.3 Technical Dispute. If the Parties are unable to resolve a Technical Dispute between themselves to their respective satisfaction, then, within 15 Days after the delivery of one Party to the other 25 4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 Party of a written notice ("Technical Dispute Notice") identifying the Technical Dispute, the Parties will to cooperate in good faith to appoint an Independent Expert mutually satisfactory to the Parties to review and analyze the Technical Dispute and offer a confidential, non-binding, written opinion to the Parties on the matter. During the 30-Day period following appointment of an Independent Expert, each Party, at such Party's own cost, shall promptly provide to the Independent Expert and to the other Party such data and information as the providing Party deems reasonably necessary to resolve the Technical Dispute. During such 30-Day period, the Independent Expert may conduct telephone or other discussions with the Parties in joint sessions as part of the evaluation of the matter. All information and documents submitted to the Independent Expert shall be treated as confidential and submitted/presented in good faith as if they were part of a confidential mediation process under applicable Law. The Independent Expert shall be charged with issuing a recommendation or opinion with respect to the Technical Dispute no later than 60 Days after the appointment of such Independent Expert. The Parties are free to accept, reject, or modify the written opinion or recommendation of the Independent Expert in their discretion to attempt to resolve the Technical Dispute. If the Parties are not able to resolve the Technical Dispute through this process in its entirety, the submissions to, discussions involving, and written opinion or recommendation of, the Independent Expert shall remain confidential as they were part of a mediation conducted under applicable Law. For the purposes of this Agreement, a "Technical Dispute" shall mean a dispute regarding whether the System conforms to the technical specifications in the Agreement, whether the relevant part of the Site where the Project is located meets the required site characteristics, whether the performance or commissioning tests contemplated by the System have been satisfied, and any other Disputes of a technical or engineering nature.
All Technical Disputes shall be resolved on an accelerated basis. Each Party shall pay one-half of the fees and charges of the Independent Expert retained with respect to a Technical Dispute.
Attorneys' Fees. If any legal action is brought for the enforcement of this Agreement or because of an alleged dispute, default, misrepresentation, or breach in connection with any of the provisions of this Agreement, each Party shall be responsible for its own attorneys' fees and costs. Notwithstanding the foregoing, in the event any legal action is brought to enforce a final, non-appealable judgment, order, or decision by a court of competent jurisdiction secured by one Party against the other Party arising out of a dispute pursuant to this Agreement, the prevailing Party in such legal action shall be entitled to recover reasonable attorney's fees and costs in connection with such enforcement action.
ARTICLE 12
WARRANTIES
12.1 Work Warranty.
12.1.1 Work Warranty. Contractor warrants during the Work Warranty Period that:
(a) the Work, including Work performed under any LNTP, shall be free from defects in design, assembly, and workmanship, and (ii) the Materials, including materials installed under any LNTP, shall be new, unused, and undamaged when installed; (iii) the Work and Materials shall be in compliance with the requirements of this Agreement (including the requirements of Exhibit A and the requirements published or provided by the manufacturers of all Materials, and Section 2.3.2); (iv) the Materials shall be in compliance with all Laws, including Environmental Laws; the Work, including Work performed under any LNTP, will be performed (i) in a good and workmanlike manner, (ii) in accordance with the requirements of this Agreement (including Section 2.3.2), and (iii) in compliance with all Laws, including Environmental Laws; (c) Collectively, (a) and (b) are the "Work Warranty."
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12.1.2 Work Warranty Period. Without limiting the duration of the manufacturer warranty for any Major Materials identified on Exhibit H, the Work Warranty shall commence on the Project's Final Completion Date and shall continue until and expire upon the second (21d) anniversary of the Final Completion Date (such applicable period, the "Work Warranty Period"); provided, however, that if Work is repaired or replaced pursuant to the Work Warranty, then the Work Warranty Period with respect to such repaired or replaced Work shall continue until the later of (i) the expiration of the original Work Warranty Period or (il) one (1) year from the date of completion of such repair or replacement; provided, further, in no event shall the warranty period for repaired or replaced Work extend for a period that is longer than the third (3) anniversary of the Final Completion Date. For clarification, if this Agreement is terminated for any reason prior to the Final Completion Date and Owner elects to retain all or any portion of the Work or the Project provided through the Agreement termination date, subject to Contractor's obligations under this Agreement upon such termination (e.g. - obligation to assign), all such retained Work and such retained Project shall be transferred and retained as-is, where-is, without Work Warranty or other Contractor warranty.
12.1.3 Correction of Deficiencies. If any failure or breach of the Work Warranty occurs prior to the end of the Work Warranty Period, then, subject to any exclusions from the Work Warranty, upon written notice from Owner delivered to Contractor by the last day of the Work Warranty Period or upon Contractor otherwise becoming aware of such failure or breach prior to the end of the Work Warranty Period, Contractor, at its sole cost and expense (including the cost of materials, transportation, labor and equipment), shall as soon as reasonably practicable, repair or replace the Work and Materials, or take some other corrective action to cause the Work and Materials to conform to the Work Warranty and remedy all other resultant damage to the Project in accordance with the requirements of this Agreement.
12.1.4 Exclusions from Work Warranty.
(a) The Work Warranty set forth in this Section 12.1 shall not apply to (i) damage to any equipment or portion of the Project to the extent such damage is caused by (1) Owner's failure to operate and maintain such equipment or the Project in accordance with the Operations and Maintenance Manual (other than failure to comply with obvious errors in such Operations and Maintenance Manual); (2) the use of parts in the repair or maintenance of such equipment or Project that are not in accordance with the Operations and Maintenance Manual; provided that, if Contractor or its Affiliates is required to operate, maintain, repair or replace Project equipment in accordance with the Operations and Maintenance Manual or otherwise, pursuant to and during the term of a Service Agreement with Owner, the exclusions under this Section 12.1.4 shall not apply to the extent of acts or failures by the Contractor or its Affiliates in the performance of the Service Agreement; (3) any Force Majeure Event; (4) normal operating consumables or items that require replacement due to normal wear and tear (other than as a result of a failure under the Work Warranty); or (5) defect or failure of any Materials to the extent the manufacturer warranties covering such defective or failing Materials have expired in accordance with the terms of such warranties or are not enforceable for any reason other than the negligent or intentional acts or failures of Contractor.
Notwithstanding any condition on or exclusion from the validity or effectiveness of the Work Warranty, in no event shall any such warranty condition or exclusion apply to any action (or any failure to act where a duty or obligation to act is imposed by this Agreement) by Contractor (or any of its representatives, agents, employees or Subcontractors) in violation of this Agreement, or to any action or failure to act by Owner (or any of its representatives, agents, employees or subcontractors) acting under the supervision or at the instruction of Contractor (or any of its representatives, agents, employees or Subcontractors). Any operation, maintenance or service of the Project performed by a Person who is certified and licensed, as necessary, and performs in conformance with the Operations and 27 4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 Maintenance Manual, the manufacturers' specifications, and Prudent Industry Practices, shall not invalidate or otherwise be grounds for an exclusion from the validity or effectiveness of the Work Warranty. (c) THE WARRANTIES SET FORTH IN THIS AGREEMENT ARE
EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, FOR PERFORMANCE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT
AS OTHERWISE PROVIDED HEREIN, THERE ARE NO OTHER WARRANTIES, AGREEMENTS,
ORAL OR WRITTEN, OR UNDERSTANDINGS WHICH EXTEND BEYOND THOSE SET FORTH IN
THIS AGREEMENT WITH RESPECT TO THE WARRANTED WORK, MATERIALS AND EQUIPMENT, OR THE PROJECT.
Owner's right to have Contractor perform the warranty service or to exercise the express rights given to Owner under this Article 12 during the Work Warranty Period for the Project shall be Owner's sole and exclusive remedy and Contractor's sole and exclusive liability for any defect, damage, deficiency in the Work, or breach or violation of the Work Warranty after Substantial Completion.
12.2 Manufacturer Warranties.
12.2.1 Manufacturer Warranties Generally. Exhibit H includes a listing of the term of the manufacturer warranties covering each of the Major Materials identified on Exhibit H (the "Manufacturer Warranties"). Upon the date that is the earliest of (i) the Final Completion Dateor (i) the effective date of termination of the Agreement by Owner, Contractor does hereby irrevocably sell, transfer, assign, convey, set over and deliver to Owner all of Contractor's rights, title and interest in, to and under the manufacturer warranties for all Materials incorporated into the Project as of such date. Upon the date on which the assignment takes effect, Contractor will sign such acknowledgements, obtain written consents and acknowledgments from the manufacturers and provide other documentation that Owner reasonably requests to ensure that such assignment is effectuated.
12.2.2 Enforcement of Manufacturer Warranties.
(a) Contractor's assignment of the manufacturer warranties for Materials incorporated into the Project to the Owner pursuant to Section 12.2.1 shall in no manner negate Contractor's Work Warranty obligations. To the extent any manufacturer warranty provided by the manufacturer of any Material applies to, or would cover, any claim under the Work Warranty, the Owner will assign, to the extent necessary and if requested by Contractor, to Contractor any Owner rights under the applicable manufacturer warranty for the purpose of fulfilling the Contractor's obligations with respect to the Work Warranty claim; provided, however, said assignment would not adversely impact or impair Owner's rights or remedies associated with the Work Warranty claim. In such case, Contractor shall have the right to enforce the applicable manufacturer warranty for the purpose of fulfilling the Work Warranty; provided that in no event shall Contractor be relieved from performing its obligations under its Work Warranty unless (other than due to the negligent or willful acts or failures of Contractor) a manufacturer fails to honor any applicable manufacturer warranty.
(b) In addition, during the Work Warranty Period, without limiting or expanding the Work Warranty, at the request of Owner, the Contractor shall enforce in the name and on behalf of the Owner any manufacturer warranties relating to the Materials in the absence of a Work Warranty breach or claim; provided that the Owner shall assign and convey to the Contractor the Owner's rights under such manufacturer and other warranties for such purposes. Notwithstanding the foregoing, Contractor shall have no obligation to incur any out-of-pocket costs or expenses with respect to the enforcement of any manufacturer or other warranties with respect to the System or the Project in the absence 28 4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 of a breach of the Work Warranty, and any such warranty enforcement by Contractor shall be at Owner's cost.
12.3 Owner Cooperation. During the Warranty Period and thereafter, if reasonably required to enable Contractor to provide services to comply with its obligations under Article 12 (collectively "Warranty Work"), Owner shall provide, or shall arrange for the provision of continuous and suitable access to the Site, so that Contractor may gain access to the Site to inspect the System or the Site and to perform any Warranty Work as soon as requested by Contractor. In addition, Owner shall coordinate operation of the System and activities by Owner and its agents so that neither Owner nor its agents interfere with or impede Warranty Work or other Contractor activity required or permitted under this Agreement, including Article 12. Owner will provide commercially reasonable cooperation in good faith to Contractor and its agents in connection with the performance of the Warranty Work.
ARTICLE 13
INSURANCE
13.1 Insurance. Contractor, at its own expense, shall procure and maintain in full force and effect all insurance coverages specified in this Article 13. All insurance coverage shall be in accordance with the terms of this Article 13 using companies to the extent required by Law, authorized to do business or approved surplus lines carriers in the State for which the work is to be performed.
13.2 Subrogation Waivers. All policies shall provide for waiver of subrogation rights against Owner and its assigns, subsidiaries, Affiliates, elected officials, directors, officers, agents and employees and of any right of the insurers to any set-off or counterclaim or any other deduction, whether by attachment or otherwise, in respect of any liability of any such Person insured under any such policy. Contractor releases, assigns and waives any and all rights of recovery against the Owner and all its Affiliates, elected officials, directors, officers, agents and employees, that Contractor may otherwise have or acquire in or from or in any way connected with any loss covered by policies of insurance maintained or required to be maintained by Contractor pursuant to this Agreement or because of deductible clauses in or inadequacy of limits of any such policies of insurance. Each of Contractor's Subcontractors shall be required to provide a waiver of subrogation against the Owner to the extent that this coverage is reasonably available in the market.
13.3 Evidence of Insurance. Evidence of insurance required hereunder in the form of certificate of insurance shall be furnished by Contractor no later than ten (10) Days after the execution of this Agreement. All such certificates and other evidence of insurance shall provide for Owner to be notified in writing thirty (30) Days prior to any cancellation, nonrenewal or material change in said policies.
13.4 Insurance Coverage. All amounts of insurance coverage under this Agreement are required minimums. Contractor shall be solely responsible for determining the appropriate amount of insurance, if any, in excess thereof. Contractor shall be responsible for the deductible on all policies required herein.
13.5 Failure to Maintain Insurance. If at any time the insurance to be provided by Contractor hereunder shall be reduced or cease to be maintained, then (without limiting the rights of the Owner hereunder in respect of any default that arises as a result of such failure), the Owner may if such default continues after five (5) Business Days' notice to Contractor, at its option maintain the insurance required hereby; and, in such event, Owner may withhold the cost of insurance premiums expended for such replacement insurance from any payments to Contractor.
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DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69
13.6 Contractor Acquired Insurance. Contractor shall maintain the following types of insurance.
13.6.1 Commercial General Liability Insurance. Commercial General Liability with of one million Dollars ($1,000,000) per occurrence, two million Dollars ($2,000,000) general aggregate and $2,000,000 in the aggregate for products and completed operations. Such insurance shall include, but not be limited to Contractual liability encompassing the indemnity provisions of this Agreement (subject to the policy terms and conditions) personal injury, explosion and collapse. Coverage is required to be written on an occurrence form.
13.6.2 Workers' Compensation/Employer's Liability Insurance. Contractor shall maintain statutory limits for Worker's Compensation to the extent required by Law, during the entire time that any persons are employed by them on the Site in connection with the Project.
13.6.3 Commercial Automobile Liability Insurance. Automobile Liability insurance in respect of all Contractor owned or hired vehicles used on public highways or in any circumstances such as to be liable for compulsory motor insurance in accordance with Law of the State in which the work is being performed. The limit of liability shall not be less than one million Dollars ($1,000,000) combined single limit for all owned, non-owned and hired vehicles. This provision shall not apply to any personal vehicles of Contractor or Contractor's Personnel to the extent that they are not being used for any aspect of the Work, beyond provided transportation to and from the Site.
13.6.4 Umbrella/Excess Liability Insurance. Umbrella or Excess Liability insurance is required with a limit of five million Dollars ($5,000,000) per occurrence and in the annual aggregate in excess of the limits of insurance provided in Sections 13.6.1, 13.6.2 (with respect to employer's liability) and 13.6.3
13.6.5 Professional Liability Insurance. The Contractor shall provide Professional Liability insurance with limits not less than one million Dollars ($1,000,000) each claim and two million Dollars ($2,000,000) in the aggregate.
13.7 General Insurance Provisions.
13.7.1 All insurance required under Section 13.6 (other than Section 13.6.2) shall be maintained and endorsed to include the Owner. All insurance required by Contractor shall be primary to any insurance carried by Owner.
13.7.2 All insurance required to be maintained in accordance with this Article 13 shall be placed with financially sound and reputable insurers at the time of inception of such coverage with an AM Best Rating of A- VIII or higher, licensed to do business or approved surplus lines carriers in the State of the location of the Project.
ARTICLE 14
MISCELLANEOUS
14.1 Assignment. Except as provided in Section 9.2.2, neither Owner nor Contractor may voluntarily assign its rights nor delegate its duties under this Agreement, or any part of such rights or duties, without the written consent of the other Party. Neither Owner nor Contractor will unreasonably withhold, condition or delay any requested consent to an assignment that is allowed by the terms of this Agreement.
Any such assignment or delegation made without such written consent or in violation of the conditions to assignment set out below shall be null and void. Notwithstanding the foregoing, nothing in this Section 30 4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69
14.1 shall prohibit Contractor from subcontracting all or any portion of the Work hereunder in accordance with the provisions of this Agreement (provided that no such subcontracting shall relieve Contractor of any obligation hereunder).
14.2 Entire Agreement; Integration; Exhibits. This Agreement and any LNTP, any Change Orders executed and delivered after the Effective Date, and the Schedules and Exhibits attached to this Agreement constitute the entire agreement and understanding between Owner and Contractor with respect to the subject matter hereof and supersede all other prior agreements relating to the subject matter hereof, including any request for or response to proposals or quotes, which are of no further force or effect.
Notwithstanding the foregoing, the parties agree that this Agreement covers different subject matter than and is separate from the Service Agreement and does not supersede the Service Agreement. The Schedules and Exhibits attached hereto are integral parts hereof and are made a part of this Agreement by reference.
In the event of a conflict between the provisions of this Agreement and those of the Schedules and Exhibit, the provisions of first the Agreement shall prevail, and such Schedules or Exhibits shall be corrected accordingly, except that Exhibit A shall prevail over this Agreement pertaining to any issues relating to the scope of Work.
14.3 Amendments. This Agreement may only be amended, modified or supplemented by an instrument in writing executed by duly authorized representatives of Owner and Contractor; provided, that, for the avoidance of doubt, this Agreement may not be amended by electronic mail communications.
14.4 Severability. In the event that any provision of this Agreement is unenforceable or held to be unenforceable, the Parties agree that all other provisions of this Agreement have force and effect and shall not be affected thereby. The Parties shall, however, use their best endeavors to agree on the replacement of the void, illegal or unenforceable provisions) with legally acceptable clauses which correspond as closely as possible to the sense and purpose of the affected provision and this Agreement as
14.5 Notices. Any notice required or permitted to be given under this Agreement shall be given in writing and shall be deemed effectively given (i) upon personal delivery, (ii) two (2) Business Days after deposit with a nationally recognized overnight delivery service, or (iii) when transmittal is confirmed by return facsimile or return electronic mail if transmitted by facsimile or electronic mail. All notices shall be delivered to the addresses set forth below or to such other address as a Party may designate by ten (10) Days' prior written notice to the other Party in accordance with the notice provisions of this Section.
If to Contractor: POWERFLEX SYSTEMS, INC.
15445 Innovation Dr.
San Diego, CA 92128
Attention: President
With a copy to: POWERFLEX SYSTEMS, INC.
15445 Innovation Dr.
San Diego, CA 92128
Attention: Legal
If to Owner: CITY OF LANCASTER
44933 N. Fern Ave.
Lancaster, CA 93534
Attn: City Manager
31 4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 With a copy to: STRADLING YOCCA CARLSON & RAUTH
660 Newport Center Drive, Suite 1600
Newport Beach, CA 92626
Attn: Allison E. Burns
Email: [email protected]
14.6 Parties' Representatives.
14.6.1 Contractor's Representative. Contractor hereby appoints the person indicated below as its Representative, who, unless otherwise indicated in writing by Contractor, will be authorized to represent it in all respects regarding the Agreement. Contractor may replace its Representative under this Agreement at any time by notifying Owner of such replacement.
Contractor's Representative: L
14.6.2 Owner Representative. Owner hereby appoints the person indicated below as its Representative to act as the manager and coordinator of the Agreement on Owner's behalf (Owner Representative"). Owner Representative may be replaced by Owner during the performance of the Work and the Owner shall provide notice of any such change to Contractor. Owner Representative will act as the liaison for Owner's communications with Contractor. Owner Representative shall have no authority to alter, amend or waive any right or obligation of Owner hereunder.
Owner's Representative: [
14.7 Further Assurances. Upon receipt of a written request from the other Party, each Party shall execute such additional documents, instruments, and assurances and take such additional actions as are reasonably necessary and desirable to carry out the terms and intent hereof. Neither Party shall unreasonably withhold, condition, or delay its compliance with any reasonable request made pursuant to this Section 14.7.
No Partnership or Joint Venture. Contractor, and the agents and employees of Contractor, in the performance of this Agreement, shall act in an independent capacity and not as officers or employees or agents of Owner. This Agreement shall not create any partnership or joint venture between the Parties nor impart any rights enforceable against the Parties by any third party (other than a permitted successor or assignee bound to this Agreement).
14.9 Binding Effect. This Agreement shall inure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns.
14.10 Counterparts. This Agreement may be executed in one or more counterparts, all of which taken together shall constitute one and the same instrument and each of which shall be deemed an original.
14.11 Facsimile or Electronic Delivery. This Agreement may be duly executed and delivered by a Party by execution and facsimile or electronic format (including portable document format (.pdf)) delivery of the signature page of a counterpart to the other Party, and, if delivery is made by facsimile or other electronic format, the executing Party shall promptly deliver, via overnight delivery, a complete original counterpart that it has executed to the other Party, but this Agreement shall be binding on and enforceable against the executing Party whether or not it delivers such original counterpart.
14.12 Survival of Obligations. The expiration or earlier termination of this Agreement shall be without prejudice to the obligations that one Party owed to the other Party hereunder as of the time of such 32 4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 expiration or termination. Provisions of this Agreement that expressly provide for survival shall survive the expiration or termination of this Agreement for the periods of time so noted.
14.13 Waivers. No delay or omission by a Party to exercise any right or power it has under this Agreement shall impair or be construed as a waiver of such right or power. A waiver by any Party of any breach or covenant shall not be construed to be a waiver of any succeeding breach or any other covenant.
All waivers must be signed by the Party waiving its rights.
14.14 Confidentiality.
Definition of Confidential Information. The following constitutes "Confidential Information," whether oral or written which is delivered by Owner to Contractor or by Contractor to Owner including, but not limited to: (a) proposals and negotiations concerning this Agreement, including the fact that negotiations are taking place (b) the terms of this Agreement, (c) the actual Application for Payments billed, and other supporting material provided, to Owner under this Agreement, and (d) information that either Owner or Contractor stamps or otherwise identifies as "confidential" or "proprietary" before disclosing it to the other. Confidential Information also includes technical information, financial information, methods of doing business, business plans and models, pricing and cost information, contract terms and conditions, marketing methods and strategies, names of suppliers, customers, creditors or partners, proposed transactions, market projections, names and compensation of employees and consultants, software programs, and other confidential and proprietary information relating to the Project. Confidential Information does not include (i) information that was publicly available at the time of the disclosure, other than as a result of a disclosure in breach of this Agreement; (ii) information that becomes publicly available through no fault of the recipient after the time of the delivery; (iii) information that was rightfully in the possession of the recipient (without confidential or proprietary restriction) at the time of delivery or that becomes available to the recipient from a source not subject to any restriction against disclosing such information to the recipient; and (iv) information that the recipient independently developed without a violation of this Agreement.
14.14.2 Duty to Maintain Confidentiality. Contractor and Owner agree not to disclose Confidential Information received from the other to anyone (other than Contractor's and Owner's Affiliates, counsel, consultants, lenders, prospective lenders, purchasers, prospective purchasers, investors, prospective investors, contractors constructing or providing services to the Project (including but not limited to Subcontractors), employees, officers and directors who need to know and are bound by similar obligations of confidentiality applicable to the Confidential Information), without the deliverer's prior written consent. Confidential Information will retain its character as Confidential Information but may be disclosed by the recipient if and to the extent such disclosure is required (a) to be made to Utility pursuant to the Interconnection Agreements, Utility pursuant to the tariff under which Utility operates and other Utility rules under which Owner or the Project is bound, or to Governmental Authorities by any requirements of Law, (b) pursuant to an order of a court or (c) in order to enforce this Agreement. With the exception of the terms of this Agreement and Contractor's (and its Subcontractors') Applications for Payment or invoices and supporting material, the originator or generator of Confidential Information may use such information for its own uses and purposes, including the public disclosure of such information at its own discretion. In the event a recipient is required by Law or by a court or regulatory agency to disclose Confidential Information, the recipient will, to the extent possible, give the disclosing Party prompt notice of such request so that the disclosing Party may seek an appropriate protective order. If, in the absence of a protective order, the receiving Party is nonetheless advised by counsel that disclosure of the Confidential Information is finally required (after, if advance notice to the disclosing Party is permitted by Law, exhausting any appeal requested by the disclosing Party at the disclosing Party's expense), the receiving Party may disclose such Confidential Information.
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DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 Irreparable Injury: Remedies. Contractor and Owner each agree that disclosing Confidential Information of the other in violation of the terms of this Section 14.14 may cause irreparable harm, and that the harmed Party may seek any and all remedies available to it at law or in equity, including but not limited to injunctive relief.
14.14.4 Public Statements. Except to the extent required by law with regard to approval of this Agreement, neither Party may issue or make any public announcement, press release, or statement regarding this Agreement unless such public announcement, press release or statement is issued jointly by the Parties; or if, prior to the release of the public announcement, press release or statement, any such Party wishing to make any such public statement furnishes the other Party with a copy of such announcement, press release or statement, and obtains the approval of the other Party, such approval not to be unreasonably withheld, conditioned or delayed; provided that, notwithstanding any failure to obtain such approval, no Party shall be prohibited from issuing or making any such public announcement, press release re slatimes of any s neck sary an do avin oiler tic comply sit par, ye al protestingin or the rules and, neither Party shall issue any public announcement, press release, or statement regarding this Agreement that includes any details about the Contract Price or the financial arrangements between the Parties, without the prior, written consent of the other Party, which may be granted or withheld in the other Party's sole discretion, which need not be reasonable. However, Contractor shall have the right to refer to the Project in Contractor's marketing materials so long as such marketing materials include only true and correct information about the Project size, capacity, basic design, and ownership.
Public Records Act: Certain Other Disclosures. Notwithstanding any provision of this Agreement, including the provisions of this Article 14, nothing shall prohibit or in any way restrict Owner from disclosing information, including Confidential Information, in response to a request made under the California Public Records Act (Cal. Gov't Code §§ 6250-6276.48) and/or the Ralph M. Brown Act (Cal. Gov't Code §§54950 et seq.) and/or whenever disclosure is required under applicable law. Additionally, public statements made during a public meeting or hearing conducted by Owner's legislative body, or any committee or commission thereof, shall not be and are not prohibited, restricted or otherwise subject to the provisions of this Article 14.
14.15 Negotiated Terms. The Parties agree that the terms and conditions of this Agreement are the result of negotiations between the Parties and that this Agreement shall not be construed in favor of or against any Party by reason of the extent to which any Party or its professional advisors participated in the preparation of this Agreement.
[SIGNATURE PAGE FOLLOWS.]
34 4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 IN WITNESS HEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives as of the Effective Date.
CONTRACTOR: OWNER:
POWERFLEX SYSTEMS, INC., a Delaware CITY OF LANCASTER, a California corporation municipal corporation and charter city
-DocuSigned by: - DS
- DocuSigned by: Jason Caudle IN
By: Rapese Pedera, By: -8137CEA3D088472..
- 204F49F2B01A43F...
Jason Caudle
Name: Raphael Declercq Name:
Title: Executive Vice-president Title: city manager
Signature Page
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DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 SCHEDULE 1.1
DEFINED TERMS
As used in this Agreement, the following capitalized terms have the following meanings:
(1) "AC" means alternating current.
"Affiliate" means, with respect to any Person, each Person that directly or indirectly controls, is controlled by, or is under common control with such designated Person. For purposes of this definition, "control" (including, with correlative meanings, the terms "controlled by" and "under common control with"), as used with respect to any Person, shall mean (a) the direct or indirect right to cast at least fifty percent (50%) of the votes exercisable at an annual general meeting (or its equivalent) of such Person or, if there are no such rights, ownership of at least fifty percent (50%) of the equity or other ownership interest in such Person, or (b) the right to direct the policies or operations of such Person.
(3) "Agreement" has the meaning assigned to such term in the Preamble. "Application for Payment" means an application for payment of the Contract Price delivered by Contractor to Owner and substantially in the form of Exhibit N (5) "Authorized Persons" has the meaning assigned to such term in Section 2.13. (6) "Building" has the meaning assigned to such term in the Recitals. (7) "Business Day" means any Day that is not a Saturday, Sunday, or recognized bank holiday in the State of California.
(8) "Change Order" has the meaning assigned to such term in Section 6.1.1. (9) "Claiming Party" has the meaning assigned to such term in Section 10.3 "Commencement Date" means the date, which shall be a Business Day, that the Owner issues a Notice to Proceed to the Contractor.
"Confidential Information" has the meaning assigned to such term in Section 14.14.1.
(12) "Contract Documents" means those documents attached and incorporated in Exhibit A.
(13) "Contract Price" has the meaning assigned to such term in Section 3.1. (14) "Contractor" has the meaning assigned to such term in the Preamble. (15) "Contractor Indemnified Party" has the meaning assigned to such term in Section 7.2.
(16) •
Exhibits - Page 1
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DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 (17) "Contractor's Personnel" means those individuals directly employed by Contractor to perform all or any portion of the Work.
"Contractor's Representative" means the individual so appointed by Contractor pursuant to Section 14.6.1.
(19) "Contractor's Safety Program" has the meaning assigned to such term in Section
2.11.3. (20) "Day" means a period of twenty-four (24) consecutive hours beginning at 00:00 hours [EPT] on any calendar day and ending at 24:00 hours EPT on the same calendar day. (21) "DC" means direct current.
(22) "Defaulting Party" has the meaning assigned to such term in Section 9.1. (23) "Defective" shall mean a defect or deficiency in the Work that has a significant adverse impact on the operation, performance, functionality or safety of the Project and, including any such defect or deficiency that results in or contributes to a failure to conform to the requirements or specifications for the Work as set forth in this Agreement or in accordance with the specifications of an relevant manufacturer of components included in the Work; provided that Work that in respect of the Project that achieves at least eighty percent (80%) of the Performance Criteria specified for such Project shall not be considered "Defective" under this Agreement. (24)
(25) "Design" has the meaning assigned to such term in Section 2.4.1(a). (26) "Distribution System" means the Utility electricity distribution system to which the Project is to be interconnected.
(27) "Effective Date" has the meaning assigned to such term in the Preamble. (28) "Electrical System" means the electricity supply system at the Site, including electrical control panels, relay-logic controls, circuit breakers, bus/feeders, transformers, operator consoles, junction boxes, switchgear, and, as applicable, meters). (29) "Energy" means electrical energy, measured in kilowatt-hours ("kWh") that is produced by the Project.
(30) "Environmental Attributes" means any and all current or future credits, benefits, emissions reductions, environmental air quality credits, emissions reduction credits, renewable energy credits, offsets and allowances, attributable to the Project, or otherwise attributable to the generation, purchase, sale or use of Energy from or by the Project, howsoever entitled or named, resulting from the avoidance, reduction, displacement or offset of the emission of any gas, chemical or other substance, including any of the same arising out of legislation or regulation concerned with oxides of nitrogen, sulfur or carbon, with particulate matter, soot or mercury, or implementing the United Nations Framework Convention on Climate Change (UNFCCC) or the Kyoto Protocol to the UNFCCC or crediting "early action" emissions reduction, or laws or regulations involving or administered by the Clean Air Markets Division of the Environmental Protection Agency (or successor agency), or any state or federal entity given jurisdiction over a program involving transferability of Environmental Attributes, or any voluntary Exhibits - Page 2
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DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 or other agency certifying a similar credit (such as "Green-e" certified credits) and any Renewable Energy Certificate Reporting Rights to such Environmental Attributes. (31) "Environmental Laws" means all applicable laws pertaining to Hazardous Materials, the environment, human health, safety and natural resources, including, but not limited to, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. § 9601 et seq.) ("CERCLA") as amended, the Emergency Planning and Community Right to Know Act (42 U.S.C. §§ 11001 et seq.), the Resource Conservation and Recovery Act of 1976 (42 U.S.C. §§ 6901 et seg.) as amended, the Clean Air Act (42 U.S.C. § 7401 et seq.), the Federal Water Pollution Control Act (also known as the Clean Water Act) (33 U.S.C. §§ 1251 et seq.), Rivers and Harbors Act of 1899, as amended (33 U.S.C. § 403), the Toxic Substances Control Act (15 U.S.C. §8 2601 et seq.), the Safe Drinking Water Act (42 U.S.C. $§ 300f et seq.), the Endangered Species Act (16 U.S.C. $8 1531 et seq.), the Migratory Bird Treaty Act (16 U.S.C. §§ 703 et seq.), the Bald Eagle Protection Act (16 U.S.C. §§ 668 et seq.), the Oil Pollution Act of 1990 (33 U.S.C. §§ 2701 et seq.), the Hazardous Materials Transportation Act (49 U.S.C. §§ 1801 et seq.), the National Environmental Policy Act of 1969 (42 U.S. C. §84321 to 4370h), the National Historic Preservation Act (16 U.S.C §§ 470 et seq.), Title 14 Code of Federal Regulations Part 77 and 49 U.S.C. 844718, and any similar or analogous state and local statutes or regulations promulgated thereunder and decisional law of any Governmental Authority, as each of the foregoing may be amended or supplemented from time to time in the future, in each case to the extent applicable with respect to the property or operation to which application of the term "Environmental Laws" relates.
"EV Project" means the portion of the Project concerning the electrical vehicle charging station portion of the System.
(33) "Event of Default" has the meaning assigned to such term in Section 9.1. (34) "Expected Capacity" means the electric capacity in Megawatts (DC) for the Storage Project, as specified in Exhibit A.
(35) "Extended Force Majeure Event" has the meaning assigned to such term in Section 10.3.1.
"Final Completion" means that, with respect to the Project, the items listed in Exhibit G have been completed in accordance with Prudent Industry Practices and the other requirements of this Agreement.
(37) "Final Completion Certificate" means the certificate attached hereto as Exhibit G.
(38) "Final Completion Date" the date that Final Completion is achieved in accordance with this Agreement, including Section 2.3.1(e)and Exhibit G (39) "Force Majeure Event" shall have the meaning assigned to such term in Section 10.1.1.
(40) "Force Majeure Remedy Plan" has the meaning assigned to such term in Section 10.3.1.
(41) "Governmental Authority" means any federal, state, local or foreign government in any jurisdiction having authority over Owner, Contractor, the Project, or the Site, or any ministry, Exhibits - Page 3
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DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 department, court, commission, board, agency, utility, institution, or similar entity acting under authority granted by any such government or governments.
(42) "Governmental Authorization" means any permit, license, consent, decree, waiver, privilege, approval, authorization, or exemption from, filing with or notice to any Governmental Authority.
(43) "Hazardous Materials" means any hazardous or toxic substance or material regulated or governed by any applicable Governmental Authority under Environmental Laws, or any substance, emission, or material now or hereafter deemed by any Governmental Authority having jurisdiction to be a "hazardous substance," "petroleum," "toxic substance," "pesticide," "hazardous waste," "regulated substance," "pollutant," "contaminant," or any similar classification, including by reason of deleterious properties, ignitability, corrosivity, reactivity, carcinogenicity, or reproductive toxicity.
(44) "Independent Expert" means a Person that is not an Affiliate of either Party and that has not provided services to or received services from either Party at any time during the 5-yea beriod prior to the date of eth applicable Technical Dispute Notice, which Person has qualifications o experience sufficient to enable such Person to evaluate and offer resolution for a Technical Dispute consistent with Prudent Industry Practices.
(45) "Intellectual Property" has the meaning assigned to such term in Section 5.1.5. (46) "Intellectual Property Rights" has the meaning assigned to such term in Section 5.1.5(b).
(47) "Interconnected" and "Interconnection" means the Facility is connected to the Electrical System.
(48) "Interconnection Agreement" means the Southern California Edison Contract for Special Facilities between Contractor and the Utility.
(49) "Interconnection Work" means the work required to Interconnect the System to the Electrical System, including to the extent necessary, Electrical System upgrades, as specified in the Interconnection Agreement or otherwise described on Exhibit J. (50) "Law" means any applicable law, statute, regulation, rule, ordinance, decision, writ, order, decree, judgment, injunctions, codes, acts, treaties, or ordinances, or any interpretation thereof, promulgated or issued by any Governmental Authority. (51) Intentionally Omitted.
(52) "License" means any of the rights or licenses to use the Building or the Site described and defined on Exhibit B.
(53) Intentionally Omitted.
(54) "LNTP" has the meaning assigned to such term in Article 4 below. (55) "Major Materials" means those Materials that are material to the System or the Project as a whole and for which the manufacturer warranty term is included on Exhibit H.
Exhibits - Page 4
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DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 (56) "Major Subcontractor" means any Subcontractor entitled by contract to be paid $100,000 or more for Work provided by such Subcontractor to the Project. (57) "Material Event" has the meaning set forth in Section 6.1.3. (58) "Materials" has the meaning assigned to such term in Section 2.1. "Mechanical Completion" means that, with respect to the Project, the elements of the Work listed in Exhibit D have been completed in accordance with Prudent Industry Practices and the other requirements of this Agreement.
(60) "Mechanical Completion Certificate" means the certificate attached hereto as Exhibit D.
(61) "Mechanical Completion Date" means the first date as of which the System achieves Mechanical Completion.
"Milestone Payment Schedule" shall mean the schedule agreed upon by Owner and Contractor apportioning the Contract Price across the various divisions of the Work as set forth in Exhibit M
(63) "Non-Claiming Party" has the meaning assigned to such term in Section 10.3 (64) "Non-Defaulting Party" has the meaning assigned to such term in Section 9.1.1. (65) "Notice to Proceed" has the meaning assigned to such term in Article 4. (66) "Operations and Maintenance Manual" means a manual for the operation and maintenance of the Project, which manual includes the following information: necessary technical documents that enable the operating personnel to start-up, operate, and shut down the systems of the Project; necessary documents required for maintenance of subsystems, equipment units, and items incorporated into the Project (including non-proprietary technical information from vendors); necessary drawings and diagrams for the appropriate use of above items, such as piping and instrumentation diagrams, electrical one line diagrams, "as built" drawings, etc., for each of the Project, the final "as built" plans and line diagram drawings, complete equipment specification sheets, all the warranty information required for each of the Project, material safety data sheets, applicable health and safety documentation, specific maintenance schedules required to comply with the Work Warranty, testing and commissioning reports, a recommended spare parts list, and control configuration and process flow diagrams for each of the Project; and any other information or data necessary to operate and maintain the (67) "Owner" has the meaning assigned to such term in the Preamble. (68) "Owner Indemnified Party" has the meaning assigned to such term in Section 7.1.
(69) "Owner Representative" means the individual so appointed by Owner pursuant to Section 14.6.2.
(70) "Parking Lot" has the meaning assigned to such term in the Recitals.
Exhibits - Page 5
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DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 (71) "Permit" means any (i) local construction Governmental Authorization related to the Project at the Site for which contractors typically are responsible; and (i) any completion certificate required by Law certifying that the Project has been designed, engineered, built, installed, connected, tested, inspected and commissioned in accordance with Laws and Governmental Authorizations.
Procurement of Permits required to be obtained in connection with the Project are the responsibility of the Owner or of the Contractor as set forth on Exhibit L
(72) "Performance Criteria" or "Performance Standards and System Tests" has the meaning set forth in Exhibit F
"Person" means any individual, sole proprietorship, corporation, limited liability company, limited or general partnership, joint venture, association, joint-stock company, trust, incorporated organization, institution, public benefit corporation, unincorporated organization, Governmental Authority or other entity.
(74) "Placed In Service", as to the System, means the System is considered to have been placed in service for federal income tax purposes, within the meaning of Section 45(a) of the Internal Revenue Code of 1986, as amended and applicable Treasury Regulations. (75) "Placed In Service Date" means the date the System is considered to have been Placed in Service.
(76) "PPT" means Pacific Prevailing Time, meaning prevailing Standard Time or Daylight Savings Time in the Pacific Time Zone.
(77) "Project" has the meaning assigned to such term in the Recitals. (78) "Project Manager" means the individual so appointed by Contractor pursuant to Section 2.14.
(79) "Project Schedule" means the "Schedule of Work" set forth in Exhibit C, as updated pursuant to this Agreement, including pursuant to Article 6. (80)
(81) "Prudent Industry Practices" means those practices, methods, standards, and acts (including those engaged in or approved by a significant portion of the solar-generated electric power industry and/or the North American Electric Reliability Corporation) of similarly situated engineering or construction firms, as applicable, on projects similar in size, nature, complexity and geographic region as the Project that at a particular time in the exercise of good judgment, and in light of the facts known at the time the decision was made, would have been expected to accomplish the desired result in compliance with all Laws and in a manner consistent with economy and expedition. Prudent Industry Practices are not necessarily defined as the optimal standard practice method or act to the exclusion of others, but rather refer to a range of action reasonable under the circumstances. (82) "Punchlist" has the meaning assigned to such term in Section 2.3.1(c) (83) "Punchlist Item" means any item of uncompleted Work that (considered individually or in the aggregate) does not or will not adversely affect the performance of the Project (or any portion thereof or the ability of Owner to operate the Project (or any portion thereof in the ordinary course of business in accordance with Prudent Industry Practices.
Exhibits - Page 6
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DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 (84) "PV" means photovoltaic.
(85) "Qualified Assignee" means any Person that is financially capable of performing Owner's obligations under this Agreement and agrees in writing to assume Owner's duties and obligations under this Agreement, the Interconnection Agreement and any other agreement relevant to the Project and to which the "Owner" under this Agreement should be a party to enable the Owner's performance under this Agreement.
(86) "Renewable Energy Certificate Reporting Rights" means the right of a purchaser of renewable energy to report ownership of accumulated "green tags" in compliance with Law and include rights under Section 1605(b) of the Energy Policy Act of 1992, and any present or future federal, state or local certification program or emissions trading program. (87) "Renewable Energy Incentives" means: (a) all federal, state, or local tax credits or other tax benefits associated with the construction, ownership, or production of electricity from the Project (including credits under sections 45 or 48 of the Internal Revenue Code of 1986, as amended); (b) any federal, state, or local governmental grants, subsidies or other benefits relating in any way to the Project or the output therefrom; and (c) any other form of governmental or quasi-governmental incentive that is not an Environmental Attribute that is available with respect to the Project. "Scope of Work" means all of those obligations of Contractor, subject to any obligations of Owner or any third party, set forth in Exhibit A (89) "Service Agreement" shall mean the service agreement, operation and maintenance agreement or similar agreement entered into by Owner with Contractor or an Affiliate of Contractor in connection with the Project substantially in the form of Exhibit S hereto. (90) "Site" has the meaning assigned to such term in the Recitals. (91) Intentionally Omitted.
(92) Intentionally Omitted.
(93) Intentionally Omitted.
(94) "Storage Project" means the portion of the Project concerning the battery energy storage portion of the System.
(95) "Subcontractors" has the meaning assigned to such term in Section 2.10.1. (96) "Submittals" means any document prepared by or on behalf of Contractor which:
(a) illustrates details of part of the Work or Materials; (b) is necessary for the operation or maintenance of the Project; or (c) is otherwise required by this Agreement, including certificates or policies of insurance,
(d) is reasonably requested by Owner,
Exhibits - Page 7
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DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 and is to be submitted by Contractor to Owner (or as Owner directs) for information, review or acceptance as a requirement of this Agreement.
(97) "Substantial Completion" means that, with respect to the Project, the items listed in Exhibit E have been completed in accordance with Prudent Industry Practices and the other requirements of this Agreement.
(98) "Substantial Completion Certificate" means the certificate attached hereto as Exhibit E.
(99) "Substantial Completion Date" is the date identified as the Substantial Completion Date on Exhibit E, and in other sections of the Agreement, including Section 2.3.1(d). (100) "Suspended Work" means any Work, or portion thereof, which Owner has suspended pursuant to Section 9.5.
(101) "System" has the meaning assigned to such term in the Recitals. (102) "System Tests" means the testing set forth in Exhibit F (103) "Tax" means any tax, levy, imposition, rates, impost, duty, fee, assessment, deduction, charge or withholding imposed by any Government Authority, including income, capital, withholding, sales, use, transfer, customs, net worth, registration, franchise, payroll, employment, property, local improvement, occupation, duties, levies, imposts, rates, fees, assessments, dues and charges, as well as any interest, penalty or assessment payable or imposed with respect to any of the foregoing, but exclusive of any penalty, fine or payment for violating any Law. (104) "Technical Dispute" shall have the meaning set forth in Section 11.3 (105) "Technical Dispute Notice" shall have the meaning set forth in Section 11.3. (106) "Turnover Package" means with respect to the Project' engineering, design, purchasing and other Project documentation: (a) a drawing index; (b) a reference index; (c) a copy of the Operations and Maintenance Manual; (d) copies of all manufacturer's warranties for equipment for which a warranty will be assigned hereunder and Subcontractor information for equipment purchased (as received from vendors) including instruction and maintenance manuals from Subcontractors; (e) one copy of the final "as-built" drawings (inclusive of design changes approved by Owner in accordance with this Agreement) and final documentation and design calculations; (f) training manuals; (g) a cable and raceway schedule for the Project, as applicable; (h) copies of all studies and reports derived from the Work; (i) a compilation of final Project safety records; (j) a copy of certificates resulting from performance of any test completed in respect of the Project. (107) "Unexpected Site Condition" means subsurface conditions (which shall include but are not limited to conditions related to water, soils or rock) at the Site or any condition of the building or any other structure at the Site that (i) could not have been reasonably foreseen by Contractor with appropriate due diligence including but not limited to that performed in accordance with this Agreement and (ii) differ materially from the conditions that Contractor should have anticipated based on Contractor's commercially reasonable review of information supplied to it by Owner. (108) "Utility" means San Diego Gas and Electric Company, the local public utility operating, or interconnecting with, the Distribution System.
Exhibits - Page 8
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DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 (109) "Warranty Work" has the meaning assigned to such term in Section 12.3. (110) "Work" has the meaning assigned to such term in Section 2.1.1. (111) "Work Warranty" has the meaning assigned to such term in Section 12.1.1(c). (112) "Work Warranty Period" has the meaning assigned to such term in Section 12.1.2
Exhibits - Page 9
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DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 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") 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 ngineer, procure, construct, install, an Contractor System ommission a 250kWDC, 500kWh Battery Storas
System
2. Microgrid Electrical Engineer, procure, construct, install, and Contractor Infrastructure commission a Schneider Electric Energy Control Center
Control System Procure, install, and commission Schneider Electric Contractor Microgrid Energy Management System to control
the new Battery Storage System and existing Solar
PV System, 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").
C. 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 Legal Requirements, including permitting standards.
Provide progress updates, revised schedules, and relevant communication throughout the performance of the Project.
G. 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 I. Properly secure work areas with temporary fencing, scaffolding, shoring, trench covers, and other required security measures to ensure a safe work place for employees and subcontractors throughout the performance of the Project.
Exhibits - Page 1
4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 J. Provide applicable Material Safety Data Sheets, upon request.
K. Structural Engineering and Electrical Engineering Design as necessary including, if applicable, for submission to City of Lancaster Building Authority.
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 KYZ Monitoring Installation and System Interconnection.
N. All Permitting documentation necessary for submission and permit issuance from City of Lancaster.
Copper wire/cable will be used all conductors.
P. All Interconnection coordination with the local Utility.
Q. 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.
T. Conduit shall be PVC schedule 40 below grade, and IMC on the parking canopies, and EMT on the roof.
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.
Z. Utility Standard interconnection fee for a simplified Interconnection.
AA. Final System Plans (as-builts) will be provided in PDF format.
8. Exclusions:
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.
Exhibits - Page 2
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DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 Exhibit B: Site Description; Site Requirements; Environmental Matters Site Address: Lancaster City Hall, 44933 Fern Ave. Lancaster CA 93534 1: Battery Energy Storage Location
2: Electrical Point of Interconnection
SITE REQUIREMENTS (as follows):
See attached Property Deed, including Property Rules. Attachment B-0.
EXISTING HAZARDOUS MATERIALS AND ENVIRONMENTAL CONDITIONS AT SITE:
None
Exhibits - Page 3
4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69
EXHIBIT C-
Microgrid Milestone Schedule
Contract Execution 11.31.21
Notice to Proceed 1.31.22
Permit Approval 3.31.22
Interconnection Approval 8.30.22
Schneider Energy Control Center Installed 9.30.22
BESS Delivered 10.31.22
Mechanical Completion 11.30.22
Final Completion and Turnover 12.30.22
Exhibits - Page 4
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DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 EXHIBIT D: Form of Mechanical Completion Certificate
This Mechanical Completion Certificate (this "Certificate") is provided in accordance with the ENGINEERING, PROCUREMENT, AND CONSTRUCTION SERVICES AGREEMENT by and between POWERFLEX SYSTEMS, INC. ("Contractor") and CITY OF LANCASTER, a California municipal corporation and charter city ("Owner") dated [•], [20[_1] (the "Agreement"). Capitalized terms used in this Certificate and not otherwise defined in this Certificate have the meanings specified in the Agreement.
In accordance with the Agreement, Contractor hereby certifies that:
(1) the System has been substantially installed in accordance with the Agreement, such that it is mechanically and electrically sound, and is ready for initial start-up, adjustment, and testing; (2) the System is ready to be Placed in Service and thereafter is capable of producing measurable and quantifiable energy, without damage to the System or any other property and without injury to any Person and without voiding any third-party Materials warranties; and (3) the installed nameplate capacity of the System is equal to or greater than the Expected Capacity; (4) The Contractor has successfully completed all pre-operational testing and commissioning of System components installed as of the date of this Certificate in accordance with manufacturer guidelines; and
(5) The System is capable of producing measurable and quantifiable energy.
In accordance with the Agreement, Owner confirms that Mechanical Completion shall be deemed to have occurred as of _, which date is the "Mechanical Completion Date" pursuant to the Agreement.
Executed this day of , 20
-*
Powerflex Systems, Inc.
By:_
Name:_
Title:
Countersigned in accordance with the Agreement:
CITY OF LANCASTER,
a California municipal corporation and charter city
Exhibits - Page 5
4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 By:
Name:_
Title:
Exhibits - Page 6
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DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 EXHIBITE: Form of Substantial Completion Certificate
This Substantial Completion Certificate (this "Certificate") is provided in accordance with the ENGINEERING, PROCUREMENT, AND CONSTRUCTION SERVICES AGREEMENT by and between POWERFLEX SYSTEMS, INC. ("Contractor") and CITY OF LANCASTER, a California municipal corporation and charter city ("Owner") dated as of [_ Capitalized terms used in this Certificate and not otherwise defined in this Certificate have the meanings specified in the Agreement.
In accordance with the Agreement, Contractor hereby certifies that all of the conditions to Substantial Completion as defined in the Agreement have been achieved with respect to the Project, as follows:
(1) Mechanical Completion of the System has been achieved; (2) The System has been Placed in Service;
(3) Except for Punchlist Items, all Materials and equipment associated with the System have been installed substantially in accordance with the technical specifications set forth in Exhibit A:
(4) Except for Punchlist Items, all of the electrical works that are part of the System have been properly constructed, installed, insulated, and protected where required for such operation, have been correctly adjusted, tested and commissioned to the extent possible, are mechanically, electrically and structurally sound as set forth in the technical specifications set forth in Exhibit A, and can be used safely in accordance with the Agreement and applicable Law;
(5) If required under Law, the electrical inspection certificate for the System has been obtained; (6) Except for Punchlist Items, all of the electrical works and all other infrastructure (including work performed by the Owner) required pursuant to Exhibit A and necessary to achieve interconnection of the System to the local Distribution System are energized and have been installed in compliance with the requirements applicable pursuant to the Interconnection Agreement;
(7) The System operates as a single unit capable of generating electricity continuously at rated power in accordance with Exhibit A;
All Work required under the terms of the Agreement (other than Punchlist Items and other Work required for achievement of Final Completion), has been completed in accordance with the requirements of the Agreement;
Contractor has prepared and submitted to Company, and Company has approved the Punchlist of Punchlist Items attached to this Certificate; and (10) Contractor has delivered a draft of the Operations and Maintenance Manual to the Company. 1 4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 In accordance with the Agreement, Owner confirms that Substantial Completion shall be deemed to have occurred as of _ _, which date is the "Substantial Completion Date" pursuant to the Agreement.
Executed this Day of _ 20_
POWERFLEX SYSTEMS, INC.
By:_
Name:_
Title:_
Countersigned in accordance with the Agreement:
CITY OF LANCASTER, a California municipal
corporation and charter city
By:-
Name:
Title:
2 4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69
EXHIBIT F
4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 EXHIBIT G: Form of Final Completion Certificate
This Final Completion Certificate (this "Certificate") is provided in accordance with the ENGINEERING, PROCUREMENT, AND CONSTRUCTION SERVICES AGREEMENT by and between POWERFLEX SYSTEMS, INC. ("Contractor") and CITY OF LANCASTER, a California municipal corporation and charter city ("Owner") dated as of I _I (the "Agreement").
Capitalized terms used in this Certificate and not otherwise defined in this Certificate have the meanings specified in the Agreement.
In accordance with the Agreement, Contractor hereby certifies that all of the conditions to Final Acceptance as defined in the Agreement have been achieved with respect to the Project, as follows:
System Performance Tests have been completed in accordance with Exhibit F that reflect that the specified test requirements have been met;
Contracto has alives ad to the Comps to then op Orpeas and no aliena Malal, reasonably requested by the Company and as reasonably agreed by Contractor; (3) Contractor has delivered to Company final Submittals, including as-built Submittals, all shop drawings, all test reports and all other documentation as required pursuant to Section
2.4 of the Agreement;
(4) Substantial Completion has occurred;
(5) All Punchlist Items as identified on the Punchlist agreed at time of Substantial Completion have been completed;
If required by applicable Law, Contractor has obtained final and complete approval to operate from the Governmental Authority having jurisdiction over operation of the System, which may be in one of several forms such as a permission to operate or a final Certificate of Occupancy.
In accordance with the Agreement, Owner hereby confirms that Final Completion shall be deemed to have occurred as of _ 20_, which date is the "Final Completion Date" pursuant to the Agreement.
Executed this _Day of _ _20_
POWERFLEX SYSTEMS, INC.
By:_
Name:_
Title:_
1 4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 Countersigned in accordance with the Agreement:
CITY OF LANCASTER, a California municipal
corporation and charter city
By:
Name:
Title:_
2 4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 Exhibit H: Terms of Manufacturer Warranties for Major Materials
MAJOR MATERIAL MANUFACTURER MANUFACTURER
WARRANTY TERM
Battery Energy Storage System Socomec HES L 10 year warranty (BESS)
Microgrid Electrical Schneider Energy Control 5 year warranty Infrastructure Center
4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 Exhibit I: Contractor's Safety Program
See attached.
4 4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 Exhibit J: Interconnection Work
INTERCONNECTION WORK:
Contractor will perform all work to interconnect the Project required by the Utility in a written document or agreement provided to Contractor on or prior to the Effective Date. 4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 Exhibit K
RESERVED
6 4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 Exhibit L - Permits and Governmental Authorizations
Permit or Governmental Authorization Responsible Party (Owner and Issuing Entity or Contractor'
1- Building Permit from City of Lancaster Contractor
Building Authority
2- Utility Interconnection Permit from Contractor
Southern California Edison
3- Nighttime Work Permit (if necessary) Contractor
Owner generally will be responsible for all land-use permits. 7 4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69
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, which Owner and Contractor agree constitute the significant cost items associated with the Work. The items identified below are for the convenience 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 Payment % of Estimated
Payment Milestone terms Contract Milestone
(days) Price Payment
1 Executed EPC Agreement 30 20% $193,530
2 Permit and Interconnection Approval 30 10% $96,765
3 Schneider Energy Control Center Delivered 30 30% $290,296 4 BESS Delivered 30 30% $290,296
5 Mechanical Completion 30 $48,383
6 Final Completion and Turnover 30 5% $48,383
4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69
EXHIBIT N- APPLICATION FOR PAYMENT
Form of Payment Certificate
L
RE: APPLICATION FOR PAYMENT AND CERTIFICATE
Ladies & Gentlemen:
POWERFLEX SYSTEMS, INC., a Delaware corporation (the "Contractor") submits this Application for Payment and Certificate (this "Certificate") pursuant to the Engineering, Procurement and Construction Services Agreement, dated as of by and between Contractor and _ (together with its successors and assigns) (the "Agreement").
Unless otherwise defined herein, all initially capitalized terms used in this Certificate shall have the meanings specified for such terms in the Agreement.
The undersigned hereby certifies that (1) to-date and, to the knowledge of Contractor (without any independent review of public records available), the System and the Site are, to the extent of the most recent payment of the Contract Price received by Contractor, free from any and all claims, liens, security interests or encumbrances in the nature of mechanics', labor or materialman's liens or otherwise, arising out of or in connection with performance by Contractor or any Subcontractor of the Work (other than Change Orders or field orders), (2) all due and payable undisputed amounts due and owing by Contractor with respect to the Work have been paid to date, and (3) Contractor is unaware of any basis for the filing of any mechanics', labor or materialman's liens on the Work, the System or the Site in connection with the Work, except as follows:
IN WITNESS WHEREOF, the undersigned has executed this Certificate on the date first above written.
Powerflex Systems, Inc.
By:
Name:
Title:
9 4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 Exhibit N - Continued
Form of Application for Payment
FORM OF CONTRACTOR'S APPLICATION FOR PAYMENT
PROJECT: _ JINSERT PROJECT DESCRIPTIONL
_ ("Owner") APPLICATION NO:
FROM: POWERFLEX SYSTEMS, INC. ("Contractor") TIME PERIOD:
Application is made for payment, as shown below in connection with the Engineering, Procurement and Construction Services Agreement, dated as of L _1 (the "Agreement").
See attached continuation sheet for additional breakdown. ORIGINAL CONTRACT PRICE Net change by Change Orders
CHANGE ORDER SUMMARY CONTRACT SUM TO DATE (Line 1+1- 2) $ Change orders approved in Additions Deductions TOTAL COMPLETED & STORED previous months by Owner LESS PREVIOUS PAYMENTS RECEIVED TOTAL (Lines 6 plus 7 of prior Certificate) $.
7. CURRENT PAYMENT DUE
Approved this Month BALANCE TO FINISH $
Number Date (Line 3 less Line 6)
approved
[TOTALS
CONTRACTOR: POWERFLEX SYSTEMS, INC.
By: _ Date:
4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 Continuation Sheet
A B C D E F G H
Work Completed Materials Total
Scheduled From Previous Presently Completed
Item % Balance to
Description of Work and Stored to (G/C)
No. Value Application This Period Stored (Not Finish (C-G) Date
(D/E) in Dor E) (D+E+F)
1 Executed EPC Agreement 15%
2 Substantially all modules delivered and 20%
installed
3 Mechanical Completion 30%
4 Commercial Operation/Placed in Service 30%
Final Completion 5%
GRAND TOTALS 100% $ $ $ $ % $
4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69
EXHBIT O
Form of Partial Lien Waiver
Partial Release and Certificate of Partial Payment (Contractor) With reference to the ENGINEERING, PROCUREMENT, AND CONSTRUCTION SERVICES AGREEMENT dated , 20_ _ as amended (the "Contract"), between the undersigned Powerflex Systems, Inc. ("Contractor") and [ _ ("Owner"), for the Project generally known as L I (the "Project"), Contractor hereby certifies and represents that prior to the submission of this Partial Release, it has received payments totaling $
The undersigned further certifies that amounts requested in previous Applications for Payment submitted by Contractor, as to which the Owner has made payment to the Contractor, have been paid to the respective payees.
In consideration of and conditioned upon receipt of the payment of the sum of under the Contract, and intending to be legally bound hereby, Contractor hereby unconditionally releases and forever discharges Owner, the Project and Owner's other premises and property from all claims, liens, liabilities, and obligations of every nature whether choate or inchoate and including, without limitation, all mechanic's and materialman's liens and other liens and claims against the aforesaid Project or Owner's other premises or property (including personal property related thereto) arising out of or in connection with work, labor, services, materials and equipment supplied to the Project up to and including [date] with respect to amounts for which payment has been received.
Executed this Day of _20_
POWERFLEX SYSTEMS, INC.
(Name of Contractor)
By:
Title:
4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 Partial Release and Certificate of Partial Payment (Subcontractor) With reference to the Subcontract dated → 20_ as amended (the "Subcontract"), between the undersigned (Name of Subcontractor) and POWERFLEX SYSTEMS, INC. (Name of Contractor) ("Contractor") for the Project generally known (the "Project"), for which L ] is the
"Owner", Subcontractor hereby certifies and represents that prior to the submission of this Partial Release, it has received payments totaling $
The undersigned further certifies that amounts requested in previous Applications for Payment submitted by Subcontractor, as to which the Contractor or the Owner has made payment to the Subcontractor, have been paid to the respective payees.
In consideration of and conditioned upon receipt of the payment of the sum of under the Subcontract, and intending to be legally bound hereby, Subcontractor hereby unconditionally releases and forever discharges Owner, the Contractor, and the Project and Owner's other premises and property from all claims, liens, liabilities and obligations of every nature whether choate or inchoate and including, without limitation, all mechanic's and materialman's liens and other liens and claims against the aforesaid Project or Owner's other premises or property (including personal property related thereto) arising out of or in connection with work, labor, services, materials and equipment supplied to the Project up to and including [date] with respect to amounts for which payment has been received.
Executed this Day of 20_
(Name of Subcontractor)
By:
Title:
4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 Partial Release and Certificate of Partial Payment (Sub-Subcontractor) With reference to the Sub-Subcontract dated _ 20_ _, as amended (the "Sub-Subcontract"), between the undersigned (Name of Sub- Subcontractor and (Name of Subcontractor
("Subcontractor") for the Project generally known as Tasty Owner, Sub-Subcontractor hereby conies and represeme "Project"), for L
that prior to submission of this Partial Release, it has received payments totaling $
The undersigned further certifies that amounts requested in previous Applications for Payment submitted by Sub-Subcontractor, as to which the Subcontractor has made payment to the Sub- Subcontractor, have been paid to the respective payees.
In consideration of and conditioned upon receipt of the payment of the sum of under the Sub-Subcontract, and intending to be legally bound hereby, Sub- Subcontractor hereby unconditionally releases and forever discharges Owner, the Contractor and Subcontractor and the Project and Owner's other premises and property from all claims, liens, liabilities and obligations of every nature whether choate or inchoate and including, without limitation, all mechanic's and materialman's liens and other liens and claims against the aforesaid Project or Owner's other premises or property (including personal property related thereto) arising out of or in connection with work, labor, services, materials and equipment supplied to the Project up to and including [date] with respect to amounts for which payment has been received.
Executed this Day of _20_.
(Name of Sub-Subcontractor)
By:
Title:
4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 EXHIBIT P:
Form of Final Lien Waiver
Final Release and Certificate of Final Payment (Contractor) With reference to the Engineering, Procurement and Construction Services Agreement, dated as of , as amended (the "Contract"), between the undersigned POWERFLEX SYSTEMS, INC. ("Contractor") and — ("Owner") for the Project generally known a (the "Project"), Contractor hereby certifies and represents that it has received full payment of all costs, charges, and expenses incurred by it or on its behalf for work, labor, services, materials, and equipment supplied to the Project and/or used in connection with its work under said Contract.
In consideration of receipt of the final payment and installment of the Contract Price under the Contract, and intending to be legally bound hereby, Contractor hereby unconditionally releases and forever discharges Owner, the Project, and Owner's other premises and property from all claims, liens, liabilities, and obligations of every nature whether choate or inchoate and including, without limitation, all mechanic's and materialman's liens and other liens and claims now, or which in the future, may be owned, claimed or asserted by Contractor against the aforesaid Project or Owner's other premises or property (including personal property related thereto) arising out of or in connection with work, labor, services, materials and equipment supplied to the Project and/or used in connection with its work under the Contract.
Intending to be legally bound hereby, Contractor hereby agrees to the fullest extent of the law to indemnify and hold harmless the Owner from and against all costs, losses, damages, claims, causes of action, judgments, and expenses, including attorneys' fees and expenses, arising out of or in connection with claims against the Owner arising out of work, labor, services, materials, and equipment supplied to the Project and/or used in connection with its work under the Contract and which may be asserted by the Contractor or any of its suppliers or subcontractors of any tier or any of their representatives, officers, agents or employees.
The foregoing shall not relieve Contractor of its obligations under the provisions of said Contract which survive completion of Subcontractor's work in connection with the Project, including without limitation, warranties, guarantees, and indemnities.
Executed this Day of _ 20_
POWERFLEX SYSTEMS, INC.
(Name of Contractor)
By:
Title:
4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 Final Release and Certificate of Final Payment (Subcontractor) With reference to the subcontract dated → 20_, as amended (the "Subcontract"), between the undersigned (Name of Subcontractor)
("Subcontractor") and POWERFLEX SYSTEMS, INC. (Name of Contractor) ("Contractor") for the Project generally known as (the "Project"), for which
] is the "Owner", Subcontractor hereby certifies and represents that it has received full payment of all costs, charges and expenses incurred by it or on its behalf for work, labor, services, materials and equipment supplied to the Project and/or used in connection with its work under said Subcontract.
Intending to be legally bound hereby, Subcontractor hereby unconditionally releases and forever discharges Owner, the Contractor, the Project, and Owner's other premises and property from all claims, liens, liabilities, and obligations of every nature whether choate or inchoate and including, without limitation, all mechanic's and materialman's liens and other liens and claims now, or which in the future, may be owned, claimed or asserted by Subcontractor against the aforesaid Project or Owner's other premises or property (including personal property related thereto) arising out of or in connection with work, labor, services, materials and equipment supplied to the Project and/or used in connection with its work under the Subcontract.
Intending to be legally bound hereby, Subcontractor hereby agrees to the fullest extent of the law to indemnify and hold harmless the Owner and the Contractor from and against all costs, losses, damages, claims, causes of action, judgments and expenses, including attorneys' fees and expenses, arising out of or in connection with claims against the Owner or the Contractor arising out of work, labor, services, materials and equipment supplied to the Project and/or used in connection with its work under the Subcontract and which may be asserted by the Subcontractor or any of its suppliers or subcontractors of any tier or any of their representatives, officers, agents or employees.
The foregoing shall not relieve Subcontractor of its obligations under the provisions of said Subcontract which survive completion of Subcontractor's work in connection with the Project, including without limitation, warranties, guarantees and indemnities.
Executed this Day of
(Name of Subcontractor)
By:
Title:
4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 Final Release and Certificate of Final Payment (Sub-subcontractor) With reference to the sub-subcontract dated _ 20_ as amended (the "Sub- subcontract"), between the undersigned.
Sub-subcontractor) ("Sub-subcontractor") (Name of
Subcontractor) ("Subcontractor") for the Project generally known as "Project"), for which [ is the "Owner", Sub-subcontractor hereby certifies and represents that it has received full payment of all costs, charges and expenses incurred by it or on its behalf for work, labor, services, materials and equipment supplied to the Project and/or used in connection with its work under said Sub-subcontract. The construction manager or general contractor for the Project is Powerflex Systems, Inc. ("Contractor").
Intending to be legally bound hereby, Sub-subcontractor hereby unconditionally releases and forever discharges Owner, Contractor, Subcontractor, the Project and Owner's other premises and property from all claims, liens, liabilities and obligations of every nature whether choate or inchoate and including, without limitation, all mechanic's and materialman's liens and other liens and claims now, or which in the future, may be owned, claimed or asserted by Sub-subcontractor against the aforesaid Project or Owner's other premises or property (including personal property related thereto) arising out of or in connection with work, labor, services, materials and equipment supplied to the Project and/or used in connection with its work under the Sub-subcontract.
Intending to be legally bound hereby, Sub-subcontractor hereby agrees to the fullest extent of the law to indemnify and hold harmless the Owner, Contractor and Subcontractor from and against all costs, losses, damages, claims, causes of action, judgments and expenses, including attorneys' fees and expenses, arising out of or in connection with claims against the Owner, Contractor or Subcontractor arising out of work, labor, services, materials and equipment supplied to the Project and/or used in connection with its work under the Sub-subcontract and which may be asserted by the Sub-subcontractor or any of its suppliers or subcontractors of any tier or any of their representatives, officers, agents or employees.
The foregoing shall not relieve Sub-subcontractor of its obligations under the provisions of said Sub-subcontract which survive completion of Sub-subcontractor's work in connection with the Project, including without limitation, warranties, guarantees and indemnities.
Executed this Day of , 20_.
(Sub-subcontractor Firm Name)
By:
Title:
4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 EXHIBIT Q: CHANGE ORDER FORMS
Form of Change Order Notice
[Project Name]
Change Order Notice No.
Contractor hereby submits a Change Order Notice pursuant to that certain ENGINEERING, charter city ("Owner") dated as of I_
hereby acknowledges that the Change requested herein must first be approved by Owner pursuant to a Change Order, and any work outside the Work defined in the Agreement performed by Contract prior to its having received a Change Order from Owner will be at Contractor's sole risk and expense. 1) Circumstances necessitating a Change:
2) Requested Change in the Work:
Impact of this requested Change to Contract Price:
Original Contract Price
Prior Change Orders to Date
Current Contract Price
New Change Order
New Contract Price
Impact of this requested Change to Project Schedule:
This Change Order Notice is part of the Work to be performed under the Agreement and is subject to all terms and condition of the Agreement.
4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 Executed this Day of _ 20_
POWERFLEX SYSTEMS, INC.
By: _
Name: _
Title:
CITY OF LANCASTER,
a California municipal corporation and charter city
By: _
Name:
Title:
4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69
FORM OF CHANGE ORDER REQUEST
[Project Namel
Change Order Request No.
Owner hereby submits a Change Order Request pursuant to that certain ENGINEERING, PROCUREMENT, AND CONSTRUCTION SERVICES AGREEMENT by and between POWERFLEX SYSTEMS, INC. ("Contractor") and CITY OF LANCASTER, a California municipal corporation and charter city ("Owner") dated as of [ _] (the "Agreement"). Owner desires to make the Change described herein. Contractor will promptly review the Change Order Request and notify Owner, as promptly as possible and no later than seven (7) Business Days after receipt, using the form below of the options for implementing the proposed Change (including, if possible, any option that does not involve an increase in the Contract Price or an extension of the Project Schedule) and to the extent "acticable based on reasonably available information the effect, if any, each such option would har n the Contract Price and the Project Schedule. After consideration of such information, Own may, but will not be obligated to, issue a Change Order pursuant to the Agreement.
Change desired by Owner: (attach additional sheets as necessary) Information to be provided by Contractor: (attach additional sheets as necessary) 1) Suggested course for implementing this Change (provide any alternate options, as applicable)
2) Impact of this requested Change to Contract Price: (provide any alternate options, as applicable)
Original Contract Price
Prior Change Orders to Date
Current Contract Price
New Change Order
New Contract Price
3) Impact of this requested Change to Project Schedule: (provide any alternate options, as applicable)
This Change Order Request is part of the Work to be performed under the Agreement and is subject to all terms and condition of the Agreement.
Submitted this _Day of _ 20_
4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69
CITY OF LANCASTER,
a California municipal corporation and charter city
By: _
Name: _
Title:
Response of Contractor submitted this _ Day of _ 20_
POWERFLEX SYSTEMS, INC.
By:
Name:
Title:
4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69
FORM OF CHANGE ORDER
[Project Namel
Change Order No.
Contractor and Owner are engaged in that certain ENGINEERING, PROCUREMENT, AND CONSTRUCTION SERVICES AGREEMENT by and between POWERFLEX SYSTEMS, INC. "Contractor") and CITY OF LANCASTER
N tAS Agreement) mer hereby provides thin dhange rit
("Owner") dated as of L
directing the Change described hereunder on the terms described herein, pursuant to the Agreement. Except › expressly modified herein, the terms of the Agreement, including but not limited to the Work, Contra rice. and Project Schedule, shall not be modified and shall remain in full force and effec Change directed by Owner: (attach additional sheets as necessary) Impact of this requested Change to Contract Price:
Original Contract Price
Prior Change Orders to Date
Current Contract Price
New Change Order
New Contract Price
Impact of this Change to Project Schedule:
The issuance of this Change Order shall not be interpreted as establishing a waiver by implication, pattern of business dealing, or otherwise of the Contractor's notice requirements under the Agreement. Contractor acknowledges that all requirements of the Contract relating to notice and time requirements of the Agreement, and all requirements related to grounds for Change Orders under the Agreement remain in full force and effect, and that Owner requires strict compliance with same. All Change Order Notices not complying with the Agreement will be granted solely at the discretion of Owner.
ACCEPTED AND AGREED:
CITY OF LANCASTER, a California municipal | POWERFLEX SYSTEMS, INC. corporation and charter city
By: _
By:
Name:
Name: _
Title:
Title:
4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 Exhibit R: Time and Material Rates
Regular Rate Overtime Rate
Labor (per Hour) (per Hour)
Subcontractor/Electrician Prevailing Wage + 10% O.T. Prevailing Wage + 10% Consulting Engineer, P.E. $150.00 N/A
EDF-DS Superintendent $95.00 $85.00
EDF-DS Designer $95.00 N/A
EDF-DS Project Manager $110.00 N/A
EDF-DS Project Executive $150.00 N/A
Material and Equipment Cost + 10% N/A
Subcontractors Cost +10% N/A
Expenses: Travel and Reimbursables Cost N/A
4816-8336-3833v2/022283-0548
DocuSign Envelope ID: 247420F8-6554-4EBC-ADB5-1D5DD4DE1A69 Exhibit S: Operations and Maintenance and Services Agreement See attached.
4816-8336-3833v2/022283-0548