CURVE, CONCAVE NORTHEASTERLY AND HAVING A RADIUS OF 88.00 FEET; THENCE SOUTHERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 17° 23' 25" AN ARC DISTANCE OF 26.71 FEET, THENCE SOUTH 17° 26' 20 EAST 26.65
FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE NORTHWESTERLY AND HAVING A RADIUS OF 44.00 FEET; THENCE SOUTHERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 64° 24’ 18" AN ARC DISTANCE OF 49.46 FEET; THENCE SOUTH 00° 02' 55" EAST 26.88 FEET TO THE NORTHERLY LINE OF “PEARBLOSSOM HIGHWAY” AS SHOWN ON TRACT NO 51743, IN THE CITY OF
PALMDALE, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 1207, PAGE(S) 29 THROUGH 30, INCLUSIVE OF MAPS, IN THE OFFICE OF COUNTY RECORDER OF SAID COUNTY; THENCE ALONG SAID NORTHERLY LINE, NORTH 89° 55' 10" WEST 30.00 FEET TO THE INTERSECTION
WITH THE SOUTHERLY PROLONGATION OF THE EASTERLY LINE OF SAID LOT 48; THENCE ALONG SAID SOUTHERLY PROLONGATION, NORTH 00° 02’ 55” WEST
30.00 FEET TO THE POINT OF BEGINNING.
APN: 3051-019-030
PARCEL 2:
THE EAST 1/2 OF THE EAST 1/2 OF THAT PORTION OF THE SOUTHEAST 1/4 OF THE SOUTHWEST 1/4 OF SECTION 4, TOWNSHIP 5 NORTH, RANGE 11 WEST, SAN
BERNARDINO MERIDIAN, IN THE COUNTY OF LOS ANGELES, STATE OF
CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT OF SAID LAND APPROVED BY THE FOLLOWING DESCRIBED LINES;
BEGINNING AT THE INTERSECTION OF THE EAST LINE OF SAID SOUTHWEST ¼ WITH THE NORTH LINE OF THE SOUTH 624 FEET OF SAID SOUTHWEST 1/4; THENCE ALONG SAID EAST LINE 0° 03' 30" WEST 572.58 FEET TO THE
SOUTHEASTERLY CORNER OF THE LAND CONVEYED TO SOUTHERN PACIFIC COMPANY BY DEED RECORDED ON MARCH 12, 1957 AS INSTRUMENT NO. 1845 IN BOOK 53840 PAGE 215 OF OFFICIAL RECORDS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY, SAID CORNER BEING DISTANT ALONG SAID EAST LINE SOUTH 0° 03' 30" EAST 128.62 FEET FROM SAID NORTHEAST CORNER OF THE SOUTHEAST 1/4 OF THE SOUTHWEST 1/4 OF SECTION 4; THENCE ALONG THE SOUTHERLY LINE OF SAID LAND, SOUTH 89° 55' 45" WEST 755 FEET; THENCE SOUTH 0° 02' 53" EAST 570.65 FEET TO A POINT IN SAID NORTH LINE OF THE SOUTH 624 FEET OF SAID SOUTHWEST ¼ THAT IS DISTANT THEREON NORTH 89° 55' 25" WEST 755 FEET FROM THE POINT OF BEGINNING; THENCE ALONG SAID NORTH LINE SOUTH 89° 55' 25" EAST 755 FEET TO THE POINT OF BEGINNING.
Exhibit I
EXCEPT THAT PORTION OF THE SOUTHEAST 1/4 OF THE SOUTHWEST 1/4 OF SAID SECTION 4 BOUNDED BY THE FOLLOWING DESCRIBED LINES:
BEGINNING AT THE INTERSECTION OF THE EAST LINE OF SAID SOUTHWEST 1/4 WITH THE NORTH LINE OF THE SOUTH 624 FEET OF SAID SOUTHWEST 1/4; THENCE ALONG SAID EAST LINE NORTH 0° 03' 30" WEST 201.20 FEET TO A POINT THAT IS DISTANT 500 FEET SOUTH ALONG SAID EAST LINE FROM THE NORTHEAST CORNER OF SAID SOUTHEAST 1/4 OF THE SOUTHWEST 1/4 OF SECTION 4, BEING THE TRUE POINT OF BEGINNING; THENCE WEST 50 FEET; THENCE NORTH 100 FEET; THENCE EAST 50 FEET TO SAID EAST LINE; THENCE SOUTH 0° 03' 30" WEST 100 FEET TO THE TRUE POINT OF BEGINNING.
PARCEL 3:
AN EASEMENT OVER THE EASTERLY 30 FEET OF THE SOUTHERLY 624 FEET OF THE SOUTHEAST 1/4 OF THE SOUTHWEST 1/4 OF SECT20N 4, TOWNSHIP 5 NORTH RANGE 11 WEST, SAN BERNARDINO MERIDIAN, IN THE COUNTY OF LOS
ANGELES, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT OF SAID LAND.
APN: 3051-019-900
0.12 AC COM S 400 FT FROM NE COR OF SE ½ OF SW ¼ OF SEC 4 T SN R 11 W TH W SO FT WITH A UNIFORM DEPTH OF 100 FT S PART OF SE ¼ OF SW ¼ OF SEC 4 T SN R 11W.
(ZC 21-003)
PARCEL 1:
THE EASTERLY 108.09 FEET OF THE WETSERLY 1,229.61 FEET OF THE SOUTHERLY 430 FEET OF THE NORTHERLY 460 FEET OF THE NORTHEAST QUARTER OF THE NORTHEAST QUARTER OF SECTION 36, TOWNSHIP 6 NORTH, RANGE 12 WEST, S.B.B AND M., IN THE COUNTY OF LOS ANGELES.
EXCEPT ALL MINERAL AND OIL RIGHTS, AS RESERVED IN THE DEED FROM HATTIE C. BRANDT, ET AL. TO C. H. ROGERS, RECORDED IN BOOK 2810 PAGE 202, OFFICAL RECORD.
EXCEPTING THEREFROM THAT PORTION AS DESCRIBED IN THAT CERTAIN FINAL ORDER OF CONDEMNATION RECORDED NOVEMBER 03, 2020 AS INSTRUMENT NO. 2020-1682848, OF OFFICIAL RECORDS.
Exhibit I
PARCEL 2:
THE SOUTHERLY 430 FEET OF THE NORTHERLY 460 FEET OF THE NORTHEAST QUARTER OF THE NORTHEAST QUARTER OF SECTION 36, TOWNSHIP 6 NORTH, RANGE 12 WEST, S.B.B AND M., IN THE COUNTY OF LOS ANGELES.
EXCEPT THE WESTERLY 1,229.61 FEET THEREOF.
ALSO, EXCEPT FOR MINERAL AND OIL RIGHTS, AS RESERVED IN THE DEED FROM HATTIE C. BRANDT, ET AL. TO C. H. ROGERS, RECORDED IN BOOK 2810 PAGE 202, OFFICIAL RECORDS.
EXCEPTING THEREFROM THAT PORTION AS DESCRIBED IN THAT CERTAIN FINAL ORDER OF CONDEMNATION RECORDED NOVEMBER 03, 2020, AS INSTRUMENT NO. 2020-1682848, OF OFFICIAL RECORDS.
PARCEL 3:
THE EASTERLY 108.09 FEET OF THE WESTERLY 1,121.52 FEET OF THE SOUTHERLY 430 FEET OF THE NORTHERLY 460 FEET OF THE NORTHEAST QUARTER OF SECTION 36, TOWNSHIP 6 NORTH, RANGE 12 WEST, S.B.B AND M.,
IN THE COUNTY OF LOS ANGELES, ACCORDING TO THE OFFICIAL PLAT OF SAID LAND APPROVED BY THE SURVEYOR GENERAL SEPTEMBER 3, 1885.
EXCEPT MINERAL AND OIL RIGHTS AS RESERVED BY HATTIE C. BRANDT, ET AL., RECORDED IN BOOK 2810 PAGE 202, OFFICIAL RECORDS.
EXCEPTING THEREFROM THAT PORTION AS DESCRIBED IN THAT CERTAIN FINAL ORDER CONDEMNATION RECORDED NOVEMBER 03, 2020 AS
INSTRUMENT NO. 2020-1682848 OF OFFICIAL RECORDS
APNS: 3012-021-027 (ALSO REFERENCED AS 3012-021-038) AND -035
EXHIBIT II
AERIAL MAP FOR ZONE CHANGE 21-002
Exhibit II
AERIAL MAP FOR ZONE CHANGE 21-003
EXHIBIT III
PROPOSED ZONE FOR ZONE CHANGE 21-002
Exhibit III
PROPOSED ZONE FOR ZONE CHANGE 21-003
City Council Staff Report
DATE: MAY 4, 2022
TO: HONORABLE MAYOR AND CITY COUNCIL
FROM: PUBLIC WORKS
DISTRICT: 1
SUBJECT: ADOPT RESOLUTION NO. CC 2022 -052, A RESOLUTION OF THE
CITY COUNCIL OF THE CITY OF PALMDALE AUTHORIZING THE
INTERIM CITY MANAGER AND CITY ATTORNEY TO NEGOTIATE
AND EXECUTE A FACILITY SOLUTIONS MASTER AGREEMENT
AND AN OPERATIONS & MAINTENANCE AGREEMENT WITH
SITELOGIQ, INC. FOR THE McADAM PARK SOLAR AND BATTERY
STORAGE PROJECT
ISSUE
Adopt Resolution No. CC 2022 -052, a Resolution of the City Council of the City of Palmdale authorizing the Interim City Manager and City Attorney to negotiate and execute a Facility Solutions Master Agreement and an Operations and Maintenance Agreement with SiteLogIQ, Inc. for the McAdam Park Solar and Battery Storage Project.
RECOMMENDATION
Adopt Resolution No. CC 2022 -052, authorizing the Interim City Manager and City Attorney to negotiate and execute Agreement No. A -7917, Facility Solutions Master Agreement and Agreement No. A -7918, Operations and Maintenance Agreement with SiteLogIQ, Inc. for the McAdam Park Solar and Battery Storage Project.
BACKGROUND
The City of Palmdale entered into a consultant agreement with SitelogIQ Energy Services to develop project applications on behalf of the City for S outhern California Edison’s (SCE) Self Generation Incentive Program (SGIP). SGIP provides incentive rebates for qualifying distributed energy systems, such as battery storage, installed on the customer's side of the utility meter. Initially, the City was waitlisted with the requests it prepared; however, was notified in late 2020 that it was taken off the wait list for the McAdam Park project and was awarded $416,937. As a result, the City had to immediately provide a 5% deposit in good faith and at the May 4, 2021 Council Meeting accepted the grant funds.
Pursuant to California Government Code Section 4217.10 to 4217.18, this project can be direct contracted with Site logIQ provided that the City follows noticing as outlined in the Code.
Report to Mayor and City Council
Re: Approval of Resolution No. CC 2022-052
Date of Meeting: May 4, 2022
DISCUSSION
The proposed project will include the installation of solar shade structures, complemented by a battery storage component at McAdam Park. In SitelogIQ’s proposed pro forma, the anticipated Edison grant funds combined with the proposed use of American Rescue Plan Act (ARPA) funds would be used for the installation of the batteries and solar panels, the infrastructure needed, system software, along with the operations and maintenance of the systems. Based on their pro forma, the project will be revenue positive, realizing the City a cumulative savings of almost $3.1 million after the anticipated 30- year life of the solar component of the project.
Other benefits of the project are as follows:
The batteries would provide a level of redundancy at the Park. If there were a power outage in the area, the batteries would still be able to provide power to the pool filters for a given amount of time, which will allow the pool to remain in operation rather than shutting down.
In approving the implementation of Energy for Palmdale’s Independent Choice (EPIC), Council expressed the desire to explore the implementation of battery type projects.
The City will retain the Renewable Energy Credits (RECs) from the project, which could be used to aid EPIC with its RECs compliance efforts. Supplementing the battery storage with solar allows for greater redundancies.
SCE recently followed-up with SiteLogIQ, indicating that the SGIP has been over- subscribed and that the City must clearly demonstrate that it intends to move forward with the project as soon as is possible. Without the clear indication of the City’s intent, SCE will need to reallocate the funds to another jurisdiction. The purpose of Resolution No.
CC 2022-052 is to provide the information required by SCE to demonstrate the City’s intent to utilize the funds.
According to Section 4217.12 (a)(1) the City Council may determine a project would be in the City’s best interest if “the anticipated cost to the public agency for thermal or electrical energy or conservation services provided by the energy conservation facility under the contract will be less than the anticipated marginal cost to the public agency of thermal, electrical, or other energy that would have been consumed by the public agency in the absence of those purchases.” Such determination must be made in a regularly scheduled public meeting, with a notice of the item being posted a minimum of two weeks in advance. Staff recommends the Council approve Resolution No. CC 2022- 054, which will determine that an agreement with SiteLogIQ is in the City’s best interest.
FISCAL IMPACT
The total project cost is estimated to be $1,667,749. It is being proposed that ARPA funds will be used for the remaining cost of $1,242,749. Pending approval of Resolution No.
CC 2022-052 and of the ARPA allocation, SiteLogIQ will work with the City to have the Report to Mayor and City Council
Re: Approval of Resolution No. CC 2022-052
Date of Meeting: May 4, 2022
facilities installed. Upon receiving the notice to proceed, SiteLogIQ will request the battery, which will require the City to pay $417,000 immediately upon making the said request. After the first year of operation, the City will receive $212,500 of the grant funds from SCE and $42,500 per year for five years for the remaining portion of the grant.
Discounting the construction costs and the operation and maintenance of the system, the City will realize the cumulative savings of $3,086,346 for the life of the project (over $4.75 million in total savings).
STRATEGIC PLAN
Goal III: Invest in infrastructure to improve community livability.
A. Seek innovative, cost effective, customer focused methods of service delivery.
B. Implement and administer environmentally sustainable programs.
Goal IV: Maintain a desirable community where everyone wants to live, work and play.
B. Provide inclusive access to a variety of supportive services that build a resilient and healthy community.
Prepared by: Chuck Heffernan, P.E., Director of Public Works Certified as to availability of Funds: Janelle Samson, Director of Finance Approved by: Ronda Perez, Interim City Manager
Approved as to form: Christopher Beck, City Attorney
ATTACHMENTS
Resolutions No. CC 2022-052
DRAFT Agreement No. A-7917, Facility Solutions Master Agreement DRAFT Agreement No. A-7918, Operations and Maintenance Agreement Notice of Public Hearing
CITY COUNCIL
CITY OF PALMDALE, CALIFORNIA
RESOLUTION NO. CC 2022-052
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALMDALE
AUTHORIZING THE INTERIM CITY MANAGER AND CITY ATTORNEY
TO NEGOTIATE AND EXECUTE A FACILITY SOLUTIONS MASTER
AGREEMENT AND AN OPERATIONS & MAINTENANCE AGREEMENT
WITH SITELOGIQ, INC. FOR THE McADAM PARK SOLAR AND
BATTERY STORAGE PROJECT
WHEREAS, the City desires to reduce energy consumption and operational expenses through the installation of energy conservation and energy generation technologies (“System”);
WHEREAS, the City of Palmdale was awarded grant funding in the amount of $425,000 from Southern California Edison through the Self Generation Incentive Program (SGIP) for a battery storage project at McAdam Park; and WHEREAS, California Government Code § 4217.10 et seq. authorizes Cities, Counties, and Special Districts to enter into agreements, contracts and related documents with private sector entities for developing energy generation and conservation projects upon City’s finding that the anticipated costs for such services provided under this Agreement, together with any financing costs, will be less than the anticipated marginal energy costs to City;
WHEREAS, the City has assigned specific areas on City properties (each one, a “Site”) on which the solar and energy conservation measures (each one, a "System") will be constructed;
WHEREAS, SiteLogIQ, Inc. (Contractor) has the capacity to design and build the solar energy generating and battery energy storage project planned for McAdam Park; and
WHEREAS, City desires to engage Contractor to design, supply and install selected and listed scope of work at each Site; and
WHEREAS, Contractor desires to provide such turnkey upgrades, design, supply and installation services, all in accordance with the terms and conditions set forth in this Agreement; and
Resolution No. CC 2022-052
WHEREAS, Contractor is a full-service energy services company with the technical and financial capabilities to provide services to the City, including, but not limited to, energy and energy system auditing, engineering, design, procurement, construction management, installation, construction, financing, training, monitoring and verification, maintenance, operation, and repair.
WHEREAS, the project pro forma estimates shows that the City will have a cumulative savings of approximately $3.1 million throughout the life of the project; and WHEREAS, staff is anticipating that a portion of the American Rescue Plan Act (ARPA) budget will include the additional funding needed to implement the project.
NOW THEREFORE, BE IT RESOLVED, THE CITY COUNCIL OF THE CITY OF
PALMDALE DOES HEREBY FIND, DETERMINE, RESOLVE AND ORDER AS FOLLOWS:
SECTION 1. Based on comments, staff reports, and documentation reviewed by the City Council, the City Council makes the formal findings required by California Government Code section 4217.12 that the renewable energy and storage technologies to be used at McAdam Park will realize costs that will be less than the anticipated cost to the City of thermal, electrical, or other energy consumed by the City in the absence of the proposed project.
SECTION 2. Once the City has finalized and adopted its American Rescue Plan Act (ARPA) budget and assuming the funds needed have been allocated to the battery storage project at McAdam Park, the Interim City Manager and City Attorney are authorized to negotiate with SiteLogIQ the agreements needed for the project.
SECTION 3. The Interim City Manager is authorized to execute the agreements needed with SiteLogIQ to build and manage the solar and battery storage project.
Resolution No. CC 2022-052
SECTION 4. The Palmdale City Clerk shall certify to the adoption of this Resolution.
PASSED, APPROVED and ADOPTED this 4th day of May, 2022. _________________________________
Approved as to form: Steven D. Hofbauer, Mayor
ATTEST:
___________________________ _________________________________ Christopher L. Beck Shanae S. Smith, City Clerk
City Attorney
I, Shanae S. Smith, City Clerk of Palmdale, California, do hereby certify that the foregoing resolution was duly passed, approved, and adopted by the City Council of the City of Palmdale at a regular meeting of said Council held on the 4th day of May, 2022 by the following roll call vote:
AYES: ___________________________________________________________ NOES: ___________________________________________________________ ABSTAIN: ______________________ABSENT: ___________________________ Date: ______________________________ _____________________________ Shanae S. Smith, City Clerk
A-7917
Contractor License# 1054171
4217 FACILITY SOLUTIONS MASTER AGREEMENT
by and between
City of Palmdale
and
SitelogIQ, Inc.
1651 Response Rd., Suite 300
Sacramento, California, 95815
CA Contractor License #: 1054171
____________, 2022
A-7917
SIQ/City of Palmdale
3/29/22 2
1. DEFINITIONS........................................................................................................................ 7
2. CONTRACTOR CERTIFICATIONS .......................................................................................... 7
3. GENERAL ............................................................................................................................. 7
3.1. Scope of Work......................................................................................................... 7
3.2. Contract Price.......................................................................................................... 8
3.3. Protective Measures. .............................................................................................. 8
3.4. Prevailing Wage. ..................................................................................................... 8
3.5. Site Conditions. ..................................................................................................... 10
3.6. Labor. .................................................................................................................... 11
3.7. Insurance............................................................................................................... 12
3.8. Performance of the Work. .................................................................................... 12
3.9. Hazardous Materials. ............................................................................................ 13
3.10. Suspension of the Work........................................................................................ 14
3.11. Taxes. .................................................................................................................... 15
3.12. Liens. ..................................................................................................................... 16
3.13. Compliance with Applicable Laws. ....................................................................... 16
3.14. Energy Credits. ...................................................................................................... 16
3.15. Title; Risk of Loss................................................................................................... 17
4. PRICE AND PAYMENT........................................................................................................ 18
4.1. Contract Price........................................................................................................ 18
4.2. Payment. ............................................................................................................... 18
5. COMMENCEMENT & COMPLETION.................................................................................. 20
5.1. Commencement and Substantial Completion...................................................... 20
5.2. Final Completion. .................................................................................................. 22 A-7917
SIQ/City of Palmdale
3/29/22 3
5.3. Inspection.............................................................................................................. 23
6. REPRESENTATIONS & WARRANTIES ................................................................................. 23
6.1. Representations and Warranties of Contractor. .................................................. 23
6.2. Representations and Warranties of City............................................................... 25
7. BREACH & TERMINATION ................................................................................................. 26
7.1. Termination by City for Cause. ............................................................................. 26
7.2. Termination by City for Convenience. .................................................................. 26
7.3. Termination by Contractor. .................................................................................. 27
7.4. Indemnity.............................................................................................................. 28
7.5. Limitations of Liability........................................................................................... 30
8. MISCELLANEOUS............................................................................................................... 30
8.1. Representatives. ................................................................................................... 31
8.2. Ownership of Plans, Data, Reports and Material. ................................................ 31
8.3. Governing Law. ..................................................................................................... 32
8.4. Force Majeure....................................................................................................... 32
8.5. Dispute Resolution................................................................................................ 32
8.6. Notices and Demands. .......................................................................................... 33
8.7. Public Records Act Disclosure............................................................................... 34
8.8. Time of Essence. ................................................................................................... 34
8.9. Validity. ................................................................................................................. 34
8.10. Binding Effect. ....................................................................................................... 35
8.11. Modifications. ....................................................................................................... 35
8.12. Headings................................................................................................................ 35
8.13. Counterparts; Signature Pages. ............................................................................ 35 A-7917
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3/29/22 4
8.14. Announcements and Publications. ....................................................................... 35
8.15. Complete Agreement............................................................................................ 35
8.16. No Agency. ............................................................................................................ 36
8.17. Priority of Documents........................................................................................... 36
8.18. Assignment............................................................................................................ 36
8.19. No Waiver. ............................................................................................................ 36
EXHIBITS
Exhibit A Definitions
Exhibit B Certifications
Exhibit B-1 Drug-Free Workplace / Tobacco-Free Environment Certification Exhibit C Work Orders
Exhibit D Not Used
Exhibit E Insurance
Exhibit F Certificate of Substantial / Final Completion and Acceptance Exhibit G Notice to Proceed
A-7917
SIQ/City of Palmdale
3/29/22 5
AGREEMENT NO A-7917
CONTRACT FOR FACILITY SOLUTIONS AGREEMENT
BETWEEN THE CITY OF PALMDALE AND SITELOGIQ, INC.
This FACILITY SOLUTIONS AGREEMENT (“Agreement”), dated as of _____________, 2022, (“Effective Date”), is by and between City of Palmdale, a City organized and existing under the laws of the State of California (“City”) and SitelogIQ, Inc., a Delaware corporation (“Contractor”) (each a “Party” and collectively, the “Parties”).
RECITALS
WHEREAS, City desires to reduce energy consumption and operational expenses through the installation of energy conservation and energy generation technologies (“System”); WHEREAS, California Government Code § 4217.10 et seq. authorizes Cities, Counties, and Special Districts to enter into agreements, contracts and related documents with private sector entities for developing energy generation and conservation projects upon City’s finding that the anticipated costs for such services provided under this Agreement, together with any financing costs, will be less than the anticipated marginal energy costs to City; WHEREAS, City has assigned specific areas on City properties (each one, a “Site”) on which the solar and energy conservation measures (each one, a "System") will be constructed; WHEREAS, City desires to engage Contractor to design, supply and install selected and listed scope of work at each Site; and
WHEREAS, Contractor desires to provide such turnkey upgrades, design, supply and installation services, all in accordance with the terms and conditions set forth in this Agreement; and
WHEREAS, Contractor is a full-service energy services company with the technical and financial capabilities to provide services to the City, including, but not limited to, energy and energy system auditing, engineering, design, procurement, construction management, installation, construction, financing, training, monitoring and verification, maintenance, operation, and repair.
NOW THEREFORE, in consideration of the mutual promises set forth below, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
A-7917
SIQ/City of Palmdale
3/29/22 6
A-7917
SIQ/City of Palmdale
3/29/22 7
AGREEMENT
1. DEFINITIONS.
Unless otherwise required by the context in which any term appears: (a) capitalized terms used in this Agreement shall have the respective meanings set forth in Exhibit A; (b) the singular shall include the plural and vice versa; (c) the word “including” shall mean “including, without limitation,” (d) references to “Sections” and “Exhibits” shall be to sections and exhibits of this Agreement; (e) the words “herein”, “hereof” and “hereunder” shall refer to this Agreement as a whole and not to any particular section or subsection; and (f) references to this Agreement shall include a reference to all attached Exhibits, as the same may be amended, modified, supplemented or replaced from time to time.
2. CONTRACTOR CERTIFICATIONS
This Agreement includes the following contractor certifications, the forms of which are attached in Exhibit B, which must be completed by Contractor prior to commencement of the work on the Systems:
i. Drug-Free Workplace / Tobacco-Free Environment Certification ( Exhibit B- 1)
ii. Non-collusion Declaration ( Exhibit B-2)
3. GENERAL
3.1. Scope of Work
(a) Contractor shall furnish to City turnkey energy efficiency upgrades and the engineering, design, procurement, construction management, installation, construction, monitoring, and commissioning of energy generation systems (each one a "System") installed at various sites (collectively, the upgrades and Systems shall be referred to as the "Project").
(b) Operations and maintenance are not a part of this Agreement. City shall enter into a separate contract for operations and maintenance. (c) Project will be executed by individual Work Orders for each Project that will be independently executed and attached in Exhibit C (“Work”). (d) Work shall be performed in accordance with this Agreement, Energy Conservation Findings, and Exhibits attached hereto.
A-7917
SIQ/City of Palmdale
3/29/22 8
3.2. Contract Price
(a) Contract Price. Subject to adjustments and/or the issuance of additional of Work Orders as set forth in this Agreement, Contractor agrees to perform the Work for the price as defined in each Work Order ("Work Order Price") as detailed in Exhibit C. The total value of the Contract is the summation of the Work Order Prices, as updated from time to time ("Contract Price"):
(i) Payment of the Contract Price shall be made in compliance with the process described in Exhibit C.
3.3. Protective Measures.
(a) Contractor shall be responsible for all injury or damage to individuals or property that may occur as a result of its fault or negligence, or that of its Subcontractors, in connection with the performance of the Work, subject to the limitation of liability contained in Section 7.5. (b) Contractor shall take all reasonably necessary precautions for the safety of its employees and any and all other individuals present on the Site where the System is located and prevent accidents or injury to individuals on, about, or adjacent to the premises where the Work is being performed.
(c) Contractor shall keep the relevant part of the Site where the System is located and surrounding areas free from accumulation of waste materials or rubbish caused by the Work, and at the end of each Day that the Contractor performs the Work, Contractor shall remove any debris, store such debris in containers at its sole expense, and leave the Site in a clean and orderly condition. Upon Final Completion, Contractor shall remove from the relevant part of the Site where the System is located all waste materials, rubbish, debris, debris containers, tools, Equipment, machinery and surplus materials from the Site and leave the Site in a clean and orderly condition.
3.4. Prevailing Wage.
(a) California Labor Code. Contractor shall comply with all applicable provisions of the California Labor Code, Division 2, Part 7, Chapter 1, Articles 1-5, including (without limitation) the payment of the general prevailing per diem wage rates for public work projects in excess of $1,000. In addition, Contractor and each Subcontractor shall comply with Chapter 1 of Division 2, Part 7 of the California Labor Code, commencing with Section 1720, and including Sections 1735, 1777.5 and 1777.6 A-7917
SIQ/City of Palmdale
3/29/22 9
forbidding discrimination, and Sections 1776, 1777.5 and 1777.6 concerning the employment of apprentices by Contractor or Subcontractor.
(b) Certified Payroll Records. This Project is subject to the requirements of Subchapter 4.5 of Chapter 8 of Title 8 of the California Code of Regulations. Contractor and all subcontractors must furnish certified payroll records to the Department of Industrial Relations' Compliance Monitoring Unit at least monthly, or within ten (10) Business Days of any separate request by the Compliance Monitoring Unit, in the manner required by the Compliance Monitoring Unit.
(c) Payment Withholding. Pursuant to 8 CCR 16463(e), the City may withhold contract payments when payroll records are delinquent or inadequate or as required by the Labor Commissioner. The amount withheld shall be limited to those payments due or estimated to be due to the Contractor or Subcontractor whose payroll records are delinquent or inadequate, plus any additional amount that the Labor Commissioner has reasonable cause to believe may be needed to cover a back wage and penalty assessment against the Contractor or Subcontractor whose payroll records are delinquent or inadequate; provided that the Contractor shall be required in turn to cease all payments to a Subcontractor whose payroll records are delinquent or inadequate until the Labor Commissioner provides notice that the Subcontractor has cured the delinquency or deficiency.
(d) Site Access.
(i) Contractor shall provide site access to Department of Industrial Relations personnel upon request.
(ii) Construction staging areas, storage areas, access, parking, Site use, etc. must be acceptable to City at all times. Site access and use will be limited. At no times shall public roads or sidewalks be blocked.
(iii) Driveways and Entrances: Contractor shall keep driveways, entrances, and fire access roads clear and available to City, City’s employees, and emergency vehicles. Contractor shall not use these areas for parking or storage of materials.
(iv) Contractor shall schedule deliveries to minimize use of driveways and entrances.
A-7917
SIQ/City of Palmdale
3/29/22 10
(v) Contractor shall schedule deliveries to minimize space and time requirements for storage of materials and equipment on-site. (vi) Parking: Designated Contractor parking areas will be assigned.
All vehicles should be locked as the City cannot guarantee observation of Contractor or public vehicles.
(vii) Contractor shall confine operations on the Site to areas indicated in the Contract Documents and as directed by City.
Portions of the Site beyond areas on which Work is indicated are not to be disturbed. Contractor shall conform to Site rules and regulations affecting the Work while engaged in project construction.
(e) Prevailing Wage Notice. On each job site that is subject to compliance monitoring and enforcement by the Department of Industrial Relations, the Contractor shall post at appropriate, conspicuous, weatherproof points at the site the Notice of Projects Subject to Requirements of Subchapter provided in Title 8, section 16451(d) of the California Code of Regulations.
(f) Prevailing Rate Penalty. Contractor shall, as a penalty, forfeit not less than Two Hundred Dollars ($200.00) to the City for each calendar day or portion thereof, for each worker paid less than the prevailing rates as determined by the Director of the Department of Industrial Relations for such work or craft in which such worker is employed for the Work by the Contractor or by any Subcontractor, of any tier, in connection with the Work. Pursuant to California Labor Code §1775, the difference between prevailing wage rates and the amount paid to each worker each calendar day, or portion thereof, for which each worker paid less than the prevailing wage rate, shall be paid to each worker by Contractor.
3.5. Site Conditions.
(a) Prior to the start of construction, Contractor will conduct a full and complete visual inspection of each Site, including (a) the readily apparent surface conditions of any areas where a System will be installed in or on the ground, including areas where utilities are located such as manhole covers, pull boxes, marked underground service areas, etc., (b) all staging, storage, delivery, and other areas necessary to perform the Work, (c) ingress to and egress from each Site for all supplies, personnel and Equipment, (d) all as-built drawings, Site layout, easement and other documentation provided by City to Contractor, (e) extent of the Work, A-7917
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locality, actual conditions, as built conditions, and all local conditions and federal, state and local laws and regulations that in any manner may affect cost, progress, performance or furnishing of Work or which relate to any aspect of the design and the means, methods, techniques, sequences or procedures of construction to be employed by Contractor and safety precautions and programs incident thereto, and (f) has considered the physical conditions at or contiguous to the sites or otherwise that may affect the cost, progress, performance or furnishing of the Work, as Contractor considers necessary for the performance or furnishing of the Work at the Contract Price, within the Contract Time and in accordance with the other terms and conditions of Contract Documents.
(b) Contractor will document and provide to City all findings in regards to the aforementioned inspection. If any conditions exist, arise, or are discovered at the Sites that differ materially from those conditions that Contractor discovered or should have reasonably discovered based on the inspections set forth in this Section, including without limitation, conditions related to Hazardous Materials or archeological findings, soils conditions, ground water, rock, caving, or subsurface obstructions of which Contactor was not aware on the date of this Agreement or could not reasonably be expected to anticipate based on the inspection described above, and such conditions involve the incurrence by Contractor of any material expenses to correct or accommodate such conditions (hereinafter, “Unanticipated Condition”), Contractor shall submit a request for a Change Order to City. City and Contractor may mutually agree to modify the Work to offset the Change Order request to comply with City budget limits.
3.6. Labor.
Contractor shall be responsible for all Contractor labor-related delays or disruption of the progress of the Work. Contractor shall promptly take any and all reasonable steps that may be available in connection with the resolution of violations of collective bargaining agreements or labor jurisdictional disputes. Contractor shall advise City promptly in writing of any actual or threatened labor dispute of which Contractor has knowledge that might materially affect the performance of the Work by Contractor or by any of its Subcontractors. Notwithstanding the foregoing, (a) the settlement of strikes, walkouts, lockouts or other labor disputes shall be at the discretion of the Party having the difficulty, (b) a labor-related delay shall not give rise to a change in the Construction Schedule unless such delay constitutes a Force Majeure Event under paragraph (c) of the definition thereof, and (c) in no event will labor-related delays or difficulties give rise to additional payments to Contractor.
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3.7. Insurance.
(a) Contractor and City, at their own expense, shall procure or cause to be procured and maintain or cause to be maintained in full force and effect at all times commencing no later than commencement of the Work at the Site and until Final Completion, all insurance coverage specified in Exhibit E.
(b) City and any lenders to the City shall be added as additional insureds under the commercial general liability, automobile liability and umbrella/ excess liability insurance procured and maintained by Contractor in connection with the Work. Contractor shall not add City or any lender as additional insureds under its worker’s compensation insurance policy. (c) Each Party shall furnish current certificates indicating that the insurance required under this Agreement is being maintained. Each Party’s certificate shall contain a provision whereby the insurer agrees to give the other Party thirty (30) Calendar days (or ten (10) Calendar days in the event of failure to pay premiums) written notice before the insurance is cancelled.
3.8. Performance of the Work.
(a) Contractor shall supervise and direct the Work, using Contractor’s best skill and attention. Contractor shall be solely responsible for all methods, techniques, sequences and procedures, and shall coordinate all portions of the Work. City will deal only through Contractor, who shall be responsible for the proper execution of the entire Work.
A subcontractor (“Subcontractor”) is a person or organization that has a direct contract with Contractor to perform any of the Work. Contractor agrees that it is as fully responsible to City for the acts and omissions of Subcontractors and of persons either directly or indirectly employed by Contractor as it is for the acts and omissions of persons directly employed by it. Nothing contained in this Agreement or any other document associated with the performance of the work shall create any contractual relation between any Subcontractor and City.
Contractor agrees to bind every Subcontractor by the terms of this Agreement as to that portion of the Work performed by Subcontractor, unless specifically noted to the contrary in a subcontract approved in writing by City. Contractor agrees to be bound to the Subcontractor by all of the obligations that City assumes to Contractor under this Agreement as to the portion of the Work performed by Subcontractor.
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(b) Contractor agrees to use, and agrees that it shall require each of its Subcontractors to use, only personnel who are qualified and properly trained and who possess every license, permit, registration, certificate or other approval required by Applicable Law or any Governmental Authority to enable such Persons to perform their Work involving any part of Contractor’s obligations under this Agreement.
(c) Contractor agrees that all materials and Equipment to be supplied or used by Contractor or its Subcontractors in the performance of its obligations under this Agreement shall be new (if being incorporated into the System) or in good operating condition (if not being incorporated into the System) and fit for the use(s) for which they are employed by Contractor or its Subcontractors. Such materials and Equipment shall at all times be maintained, inspected and operated pursuant to Industry Standards and as required by Applicable Law. Contractor further agrees that all licenses, permits, registrations and certificates or other approvals required by Applicable Law or any Governmental Authority will be procured and maintained for such materials and Equipment at all times during the use of the same by Contractor or its Subcontractors in the performance of any of Contractor’s obligations under this Agreement.
3.9. Hazardous Materials.
(a) Contractor hereby specifically agrees to indemnify, defend and hold City, their present and future Board members, administrators, employees, agents, representatives, successors and assigns harmless from and against any and all losses, liabilities, claims, demands, damages, causes of action, fines, penalties, costs and expenses (including, but not limited to, all reasonable consulting, engineering, attorneys’ or other professional fees), that they may incur or suffer by reason of:
(i) any release of a Hazardous Material brought on to the Site by Contractor, or any pre-existing Hazardous Materials that, through Contractor’s sole negligence, are released or disturbed at the Site;
(ii) any enforcement or compliance proceeding commenced by or in the name of any Governmental Authority because of an alleged, threatened or actual violation of any Applicable Law by Contractor; and
(iii) any action reasonably necessary to abate, remediate or prevent a violation or threatened violation of any Applicable Law by Contractor.
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(b) City hereby specifically agrees to indemnify, defend and hold Contractor, its present and future direct or indirect parents, subsidiaries, affiliates, divisions, and their respective directors, officers, employees, shareholders, agents, representatives, successors and assigns harmless from and against any and all losses, liabilities, claims, demands, damages, causes of action, fines, penalties, costs and expenses (including, but not limited to, all reasonable consulting, engineering, attorneys’ or other professional fees), that they may incur or suffer by reason of:
(i) any release of a Hazardous Material brought on to the Site by City, City Representative, or Third Party and any pre-existing Hazardous Material except pre-existing Hazardous Material released or disturbed at the Site through Contractor’s
negligence;
(ii) any enforcement or compliance proceeding commenced by or in the name of any Governmental Authority because of an alleged, threatened or actual violation of any Applicable Law by City or City Representative; and
(iii) any action reasonably necessary to abate, remediate or prevent a violation or threatened violation of any Applicable Law by City or City Representative.
3.10. Suspension of the Work.
(a) If Contractor does not receive payment of any undisputed invoices submitted in accordance with Section 4.2, Contractor shall have the right, upon not less than fifteen (15) Business days written notice, to suspend the Work under this Agreement. Contractor shall be entitled to compensation for all undisputed amounts under this Agreement. If City issues full payment of the undisputed invoice within fifteen (15) Business days of written notice of intention to suspend, the notice of intention to suspend shall have no further force or effect and Contractor shall continue to perform the services hereunder as if the notice of intention to suspend had not been given. In the event of any such suspension, Contractor shall be entitled to request (i) an extension of the deadlines of this Agreement for the same period of the suspension, and (ii) the reimbursement of the additional costs and expenses, if any, reasonably incurred and substantiated by Contractor (provided Contractor undertakes reasonable efforts to mitigate such costs and expenses) in protecting, securing or insuring the Work, the delay resulting from such suspension, and in resumption of the Work. If a suspension of the Work A-7917
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under this Section continues for more than two (2) months, Contractor shall be entitled to, at its sole discretion, terminate this Agreement. (b) City may suspend the Work temporarily at its discretion. In the event of any such suspension, Contractor shall be entitled to request (i) an extension of the deadlines of this Agreement for the same period of the suspension, and (ii) the reimbursement of the additional costs and expenses, if any, reasonably incurred and substantiated by Contractor (provided Contractor undertakes reasonable efforts to mitigate such costs and expenses) in protecting, securing or insuring the Work, the delay resulting from such suspension, and in resumption of the Work. If a suspension of the Work under this Section 3 continues for more than six (6) months, Contractor shall be entitled, at its sole discretion, to terminate this Agreement.
(c) In the event that the Work is totally or partially suspended, the Party that has caused the suspension (whether by reason of an act, omission or default) shall bear all the damages, costs and expenses caused by the suspension. If the suspension is not due to an act, omission or default of any of the Parties, and such delay falls under the definition of an Excusable Delay, then the deadlines of this Agreement will be extended for the same period of the suspension, or for such other period that the Parties deem reasonable in view of the circumstances, and City shall assume any costs arising under the effects of the suspension on the obligations of the Parties under this Agreement. Notwithstanding the occurrence or continuation of any Force Majeure Event, the provisions of this Section shall apply.
(d) After the resumption of the performance of the Work, Contractor shall, after due notice to City, examine the Work affected by the suspension.
Contractor shall make good any defect, deterioration or loss of the construction or the Work affected that may have occurred during the suspension period. Costs properly incurred by Contractor (including but not limited to demobilization and mobilization costs, insurance fees, and repair cost) shall be added to the Work Order Price, so long as the suspension did not arise due to any act, omission or default on the part of Contractor.
3.11. Taxes.
The Work Order Price includes (and Contractor assumes exclusive liability for and shall pay before delinquency) all federal, state or local sales, use, value added, excise and other taxes, charges or contributions imposed on, or with respect to all Equipment and Contractor’s services contemplated by this Agreement, provided that City shall pay and A-7917
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have exclusive liability with respect to any taxes payable with respect to City’s income.
Contractor shall hold harmless, indemnify and defend City, together with any and all its governing board, administrators, agents and employees from any liability, penalty, interest and expense by reason of Contractor’s failure to pay such taxes, charges or contributions. Contractor and City shall cooperate with each other to minimize the tax liability of both Parties to the extent legally permissible.
3.12. Liens.
Contractor warrants good title, free and clear of all liens, claims, charges, security interests, and encumbrances whatsoever, to all Equipment and other items furnished by it or any of its Subcontractors that become part of the System to the extent payment therefore has been received by Contractor from City.
3.13. Compliance with Applicable Laws.
(a) Contractor specifically agrees that it shall at all times fully comply with Applicable Laws and that it shall perform the Work in accordance with the Applicable Laws.
3.14. Energy Credits.
(a) City acknowledges that Contractor shall own, and may assign or sell in its sole discretion, all rights, title, and interest associated with or resulting from the development, construction, installation and ownership of the System or the production, sale, purchase or use of the energy output including, without limitation:
(i) All Environmental Incentives arising from the Environmental Attributes associated with the System;
(ii) The reporting rights and exclusive rights to claim that: (i) the energy output was generated by the System (except as stated in paragraph (a)), (ii) Contractor is responsible for the reductions in emissions of pollution and greenhouse gases resulting from the System, (iii) Contractor is entitled to all credits, certificates, registrations, etc., evidencing or representing any of the foregoing;
(iii) All carbon reduction tonnage as defined under the Climate Action Reserve or similar definition as enacted by the State of California or the U.S. Federal Government (“Carbon Credits”);
(iv) All “renewable energy credits” (as such term is defined in Section 399.12(h)(2) of the California Public Utilities Code);
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Attributes of the System or the energy output or production, sale, purchase, consumption or use of the energy output from the System, expressly excluding, however, any future Environmental Incentives that are or may be dependent on ownership of the System for federal tax purposes.
(b) The Carbon Credits, renewable energy credits, grants and future Environmental Incentives as described herein shall be referred to collectively as “Energy Credits”. The Contractor may assign, sell, transfer or otherwise convey all or any part of its right, title, and interest in and to the Energy Credits from time to time as it may determine to be in its best interest. City shall take such steps as Contractor shall reasonably request to confirm Contractor's ownership of Energy Credits as herein provided and shall cooperate with Contractor, to the extent Contractor reasonably requests and at Contractor's expense, in the sale or other disposition of Energy Credits.
(c) City recognizes that the designer/contractor under this project may be eligible for a tax deduction for energy efficient commercial buildings under §179D of the Internal Revenue Code. City agrees and recognize that Contractor will be the designer of this project for purposes of the §179D deduction. City shall cooperate with Contractor in completing the paperwork and certifications necessary to allow Contractor to claim any §179D or other energy efficient commercial buildings tax deduction” provided credits cannot be used by or benefit City. Performance & Payment Bonds.
3.15. Performance and Payment Bonds.
Contractor shall submit a Performance Bond and Payment Bond in accordance with Exhibit C.
3.16. Title; Risk of Loss.
(a) From Effective Date and until the date of Substantial Completion for the Work subject to the applicable Work Order, Contractor assumes risk of loss and full responsibility for the cost of replacing or repairing any damage to the System and all damages to and defects in materials, Equipment, supplies and maintenance equipment (including temporary materials, equipment and supplies) that are purchased by Contractor for permanent installation in or for use during construction of the System. (b) City shall bear the risk of loss and full responsibility with respect of the System from and after the date of Substantial Completion of the Work subject to the Work Order.
(c) Notwithstanding anything herein to the contrary, City shall bear the risk of loss and full responsibility for the cost of replacing or repairing any damage to that portion of the System applicable to the Work Order and A-7917
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all materials, Equipment, supplies and maintenance equipment (including temporary materials, equipment and supplies) that are purchased by Contractor or City for permanent installation in or for use during construction of the System to the extent caused by the negligent, grossly negligent or willful acts of City or its agents, employees or representatives.
(d) Title to all materials, Equipment, supplies and maintenance equipment required by this Agreement, to be purchased by Contractor for permanent installation as part of the System or for ownership by City in the operation of that portion of the System subject to the particular Work Order shall pass to the City upon the achievement of Substantial Completion of the Work required by that Work Order.
4. PRICE AND PAYMENT
4.1. Contract Price.
(a) The Work Order Price is firm fixed price for the scope proposed and includes all expenses expected to be incurred by Contractor including, but not limited to, equipment and materials, erection, construction, commissioning, inclusive of cost of travel and lodging expenses, applicable permits (other than the City Permits), services, supplies, labor, appurtenances, fees, charges, and taxes, related to Contractor’s performance of its obligations under this Agreement.
(b) Any Changes to the System or Work above and beyond code requirements and Industry Standards requested by the City shall be resolved through a Change Order to this Agreement.
(c) If applicable and approved by City, any additional Work not otherwise specified in Exhibit C shall be resolved through a Change Order to this Agreement.
(d) City and Contractor may mutually agree to reduce portions of the Work to offset the Change Order request to comply with City budget limits. (e) The Work Order Price shall only be changed by Change Order approved by Contractor and City.
4.2. Payment.
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(a) City shall pay to Contractor the progress payments set forth in Exhibit C when Contractor has completed the Work associated with such payment.
Contractor must submit documentation at the time of invoicing for related progress payments.
(b) City shall pay one hundred percent (100%) of each progress payment. (c) The following minimum content will be contained in, or delivered together with, any payment request from Contractor to City:
(i) Contractor address, phone number, and fax
(ii) Contractor invoice number and date
(iii) Project Site address(es)
(iv) Description of completed milestones since the immediately preceding payment request
(v) Total invoice amount
(vi) "Remit to" details (for wire transfer)
(vii) Lien waivers from major Subcontractors (>5% of Work Order Price)
(viii) Signature of authorized representative of Contractor, certifying as to the accuracy of the payment request.
(d) Overdue payment obligations of City hereunder shall bear interest from the date due until the date paid at a rate per annum equal to the rate published by the Wall Street Journal as the “prime rate” on the date on which such interest begins to accrue plus two percent (2%). (e) City may withhold or, on account of subsequently discovered evidence, nullify and require repayment of the whole or part of any payment to the extent necessary to protect City from loss, including costs and actual attorneys' fees, on account of (1) any breach of this Agreement by Contractor; (2) claims filed or reasonable evidence indicating probable filing of claims; (3) failure of Contractor to make payments properly to its Subcontractors or for material, labor or fringe benefits; (4) a reasonable doubt that the Work to be completed as a condition to a payment has properly been completed; (5) penalties assessed against City for failure of Contractor to comply with state, federal or local laws and regulations; or (6) any other ground for withholding payment allowed by state or federal A-7917
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law, or as otherwise provided in this Agreement. When the above matters are rectified, such amounts as then due and owing shall be paid or credited to Contractor.
(f) City agrees, and Contractor shall be entitled to, an increase in the Contract Price where the cost to Contractor for any raw-material or component (including without limitation, solar panels, tracking equipment, inverters, lighting and mechanical system components or any other equipment necessary to complete the work required by this Agreement) increases greater than two percent (2%) after the date of this Agreement. Contractor shall be entitled to an equitable adjustment in time and money for any costs that it incurs directly or indirectly that arise out of or relate to changes in taxes, tariffs, or similar charges due to such changes including, without limitation, escalation, delay damages, costs to re-procure, costs to change suppliers, costs of manufactured equipment or system components, or other costs of any kind resulting from the changes.
(g) For any non-Contractor caused delay or suspension lasting longer than 90 Calendar days, Contractor shall be entitled to a reasonable increase in the Contract Price for an increase in cost for materials, equipment, labor, taxes, tariffs, or other items necessary to complete the work. Should an increase arise; a fair and equitable solution will be negotiated in good faith between the City and Contractor for any additional costs required.
5. COMMENCEMENT & COMPLETION
5.1. Commencement and Substantial Completion.
(a) Contractor shall perform the Work as soon as practicable following the receipt of City Notice to Proceed.
(b) City shall provide access to the sites to complete the Work. (c) The Contractor shall achieve Substantial Completion as set forth in Work Order. Contractor may claim a justified extension of the Substantial Completion Date if it is or will be delayed in completing the Work for one or more of the following causes:
(i) Unanticipated Conditions which directly affect the Project Milestones;
(ii) Changes in the design, scope, or schedule of the Project required by the City;
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(iii) Breach of this Agreement by City;
(iv) Suspension of the Work for more than 90 Calendar Days; or (v) Force Majeure Event.
(d) The following are conditions precedent to Substantial Completion:
(i) the System is mechanically, electrically, and structurally constructed in accordance with the requirements of this Agreement, the Work and Industry Standards, except for non- critical punchlist items that do not affect operations; (ii) the electrical infrastructure and the grid connection for the System is mechanically, electrically and functionally complete and capable of interconnection with the local utility;
(iii) City and Contractor shall have agreed on the punchlist items. For clarity purposes, the punchlist shall include final as-built drawings, operation and maintenance manuals, operation and maintenance training, permission to operate by local utility, Performance Test, and final lien waivers; and
(iv) all necessary documents have been submitted to the local public utility and all Work has been completed to the extent necessary for the local utility to issue a permission to operate. (e) When Contractor believes it has achieved Substantial Completion, Contractor shall provide notice to City containing sufficient detail to enable City to determine that Contractor has complied fully with the requirements of Section 5.1(d). Within ten (10) Business days after receipt of such notice, City shall either issue to Contractor the Certificate of Substantial Completion in a form similar to Exhibit F, or, if reasonable cause exists for doing so, advise Contractor by notice (stating the reasons therefore) that Substantial Completion has not been achieved. In the event City determines that Substantial Completion has not been achieved in accordance with the conditions precedent in Section 5.1(d), Contractor shall promptly take such action or perform such Work as is required to achieve Substantial Completion and shall thereupon issue to City another notice as set forth above. This procedure shall be repeated until such time as City has acknowledged Substantial Completion subject to Section
5.1(f).
(f) All punchlist items shall be completed no later than sixty (60) Business Days after Substantial Completion Date unless otherwise delayed by the A-7917
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local utility. Failure of Contractor to fulfill this obligation shall entitle City to complete the pending works on its own. City shall issue final payment to Contractor minus the cost to complete remaining or incomplete punchlist items.
(g) Any dispute between City and Contractor with respect to the projected achievement of Substantial Completion as contemplated by this Section
5.1 shall be resolved in accordance with Section 8.5.
5.2. Final Completion.
(a) Final Completion of the System shall be deemed to have occurred only if:
(i) all punchlist items contemplated in Section 5.1(d)(iii) have been completed or waived;
(ii) all manuals, drawings and other documents expressly required to be delivered by Contractor hereunder have been delivered to City;
(iii) on-site operation and maintenance training as required has occurred;
(iv) all final Lien waivers have been obtained;
(v) a Certificate of Final Completion in a form similar to Exhibit F is duly signed and recorded by City’s Representative and the Contractor’s Representative; and
(vi) local utility has provided a permission to operate. (b) Upon Final Completion, Contractor shall submit to City a Certificate of Final Completion in a form similar to Exhibit F certifying that all of the foregoing conditions have been satisfied. City shall, within ten (10) Business Days after the receipt by City of such written certificate, shall execute an acknowledgment of such certificate if Contractor has achieved Final Completion or provide written notice of Contractor’s failure to achieve Final Completion. Contractor shall promptly take such action or perform such Work as is required to achieve Final Completion and shall thereupon issue to City another notice as set forth above. This procedure shall be repeated until such time as City has acknowledged Final Completion .
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(c) Any dispute between City and Contractor with respect to the projected achievement of Final Completion as contemplated by this Section 5.2 shall be resolved in accordance with Section 8.5.
5.3. Inspection.
All Work performed by Contractor and all Equipment shall be subject to inspection by City, but such right of inspection of the Work or Equipment shall not relieve Contractor of responsibility for the proper performance of the Work or Equipment to the extent provided under this Agreement. Contractor shall provide to City or City’s designee access to Contractor’s facility or facilities where the Work is being performed during business hours, and subject to compliance with Site safety rules and policies. City shall ensure that the inspections do not affect the normal performance of this Agreement unless Work is not in compliance with this Agreement.
6. REPRESENTATIONS & WARRANTIES
6.1. Representations and Warranties of Contractor.
Contractor represents and warrants to City that:
(a) Contractor is a Delaware corporation, duly organized, validly existing, and in good standing under the laws of the State of Delaware, and has full power to engage in the business it presently conducts and contemplates conducting, and is and will be duly licensed or qualified and in good standing under the laws of the State of California and in each other jurisdiction wherein the nature of the business transacted by it makes such licensing or qualification necessary and where the failure to be licensed or qualified would have a material adverse effect on its ability to perform its obligations hereunder.
(b) Contractor has (either directly or through a Subcontractor) all the required authority, ability, skills, experience and capacity necessary to perform and shall diligently perform the Work in a timely and professional manner, utilizing sound procurement principles, project management procedures, construction procedures and supervisory procedures, all in accordance with Industry Standards. Contractor has (either directly or through a Subcontractor) the experience and skills necessary to determine, and Contractor has reasonably determined, that Contractor can perform the Work for the Work Order Price. (c) The execution, delivery and performance by Contractor of this Agreement will not (i) violate or conflict with any covenant, agreement or A-7917
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understanding to which it is a party or by which it or any of its properties or assets is bound or affected, or its organizational documents or (ii) subject the System or any component part thereof to any lien other than as contemplated or permitted by this Agreement.
(d) There are no undisclosed actions, suits, proceedings, patent or license infringements or investigations pending or, to Contractor’s knowledge, threatened against it before any court or arbitrator that individually or in the aggregate could result in any materially adverse effect on the business, properties or assets or the condition, financial or otherwise, of Contractor or in any impairment of its ability to perform its obligations under this Agreement.
(e) All goods, services, equipment, parts, and materials furnished in connection with the Work related to the System are new, unused and undamaged at the time of delivery to the Site.
(f) The individual executing this Agreement on behalf of Contractor is duly authorized to execute and deliver this Agreement on behalf of Contractor and this Agreement is binding upon Contractor in accordance with its terms.
(g) Contractor Not Employee of City: It is understood and agreed that in no instance is any party, signing this Contract for or on behalf of City or acting as an employee or representative of City, liable on this Contract, or upon any warranty of authority, or otherwise, and it is further understood and agreed that liability of City is limited and confined to such liability as authorized or imposed by the Contract Documents or applicable law. (h) Non-Discrimination: Contractor shall provide all services under this Agreement without discrimination, and shall not discriminate against any employee or applicant for employment, on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation. Contractor will comply with Section 1735 of the Labor Code and all provisions of Executive Order No. 10925 of March 6, 1961, as amended, and all rules, regulations and relevant orders of the President’s Committee on Equal Opportunity created thereby. Contractor shall also comply with the California Fair Employment and Housing Act (Government Code, Section 12900 and following).
(i) Severability: The invalidity of any provision of this Agreement, as determined by a court of competent jurisdiction, shall in no way affect the validity of any other provision hereof.
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(k) Retention of Records. Pursuant to Government Code Section 8546.7, the performance of any work under this Agreement is subject to the examination and audit of the State Auditor at the request of City or as part of any audit of City for a period of three years after final payment under the Agreement. Each party hereto shall retain all records relating to the performance of the Work and the administration of the Agreement for three years after final payment hereunder.
6.2. Representations and Warranties of City.
City represents and warrants to Contractor that:
(a) City is a California City, duly organized, validly existing, and in good standing under the laws of the State of California, and has full legal capacity and standing to pursue its purpose (including the capacity to dispose of and encumber all of its assets) and full power to engage in the business it presently conducts and contemplates conducting. (b) The execution, delivery and performance by City of this Agreement will not (i) violate or conflict with any covenant, agreement or understanding to which it is a party or by which it or any of its properties or assets is bound or affected, or its organizational documents or (ii) subject the System or any component part thereof or the Site or any portion thereof to any lien other than as contemplated or permitted by this Agreement. (c) There are no undisclosed actions, suits, proceedings, patent or license infringements or investigations pending or, to City’s knowledge, threatened against it before any court or arbitrator that individually or in the aggregate could result in any materially adverse effect on the business, properties or assets or the condition, financial or otherwise, of City or in any impairment of its ability to perform its obligations under this Agreement.
(d) City will exercise commercially reasonable efforts to procure funding for the Project within three-hundred and sixty-five (365) Calendar days of the Effective Date.
(e) City has proof of funds, to the satisfaction of the Contractor, that are necessary from time to time to pay Contractor the Work Order Price in accordance with the terms of this Agreement.
(f) The individual executing this Agreement on behalf of City is duly authorized to execute and deliver this Agreement on behalf of City and this Agreement is binding upon City in accordance with its terms.
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7. BREACH & TERMINATION
7.1. Termination by City for Cause.
(a) Contractor agrees that City shall be entitled to terminate this Agreement for cause upon the occurrence of any of the following circumstances:
(i) Except as otherwise permitted under this Agreement, Contractor abandons the entire Work for more than ninety (90) Calendar days or fails to commence the Work within one- hundred and eighty (180) Calendar days after receiving the Notice to Proceed, and after expiration of said period fails to commence or continue performance of the Work within ten (10) Business days of Contractor’s written notice from City to commence or continue performance of the Work;
(ii) Contractor commits a material breach of this Agreement, and Contractor does not commence the cure of said breach and thereafter diligent pursuant to completion the cure of said breach, within thirty (30) Calendar days following Contractor’s receipt of written notice thereof from City, or
(iii) Contractor makes a general assignment for the benefit of creditors, or a receiver is appointed on account of its insolvency, or it becomes the subject of any proceeding commenced under any federal or state insolvency statute or law for the relief of debtors.
(b) Upon the occurrence of any of the foregoing, City may instruct Contractor to discontinue all or any part of the Work, and Contractor shall thereupon discontinue the Work of such parts thereof. City shall thereupon have the right to continue and complete the Work or any part thereof, by contract or otherwise. City shall also pay Contractor for all services rendered up to and including the date of termination; plus all costs incurred with respect to equipment or materials ordered (which order cannot be refunded, terminated or such costs otherwise recovered by Contractor) prior to the date of termination; plus, if applicable, amounts payable to Subcontractors arising from costs or expenses reasonably incurred by such Subcontractor and directly resulting from such termination; plus, if applicable, costs incurred by Contractor in demobilizing its work force from Site; plus all engineering and development cost incurred by Contractor prior to the Effective Date.
7.2. Termination by City for Convenience.
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(a) Contractor agrees that City shall be entitled to terminate this Agreement for Convenience upon the occurrence of any of the following circumstances:
(i) Upon exercising commercially reasonable efforts, City shall be entitled to terminate this Agreement if it is unable to procure funding for the Project within three-hundred and sixty-five (365) Calendar days of the Effective Date.
(ii) If any covenant, condition or restriction upon the Site prohibits the installation of the System at the Site, City has the right to terminate this Agreement.
(iii) For unanticipated site conditions that are beyond the contemplation of the parties that create any additional costs to City.
(b) Upon the occurrence of any of the foregoing, City may instruct Contractor to discontinue all or any part of the Work, and Contractor shall thereupon discontinue the Work of such parts thereof. City shall also pay Contractor for all services rendered up to and including the date of termination; plus all costs incurred with respect to equipment or materials ordered (which order cannot be refunded, terminated or such costs otherwise recovered by Contractor) prior to the date of termination; plus, if applicable, amounts payable to Subcontractors arising from costs or expenses reasonably incurred by such Subcontractor and directly resulting from such termination; plus, if applicable, costs incurred by Contractor in demobilizing its work force from Site; plus all engineering and development cost incurred by Contractor prior to the Effective Date.
7.3. Termination by Contractor.
(a) Contractor may terminate this Agreement, for any of the following causes:
(i) If City makes a general assignment for the benefit of creditors, or a receiver is appointed on account of its insolvency, or it becomes the subject of any proceeding commenced under any federal or state insolvency statute or law for the relief of debtors.
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thirty (30) Calendar days following City’s receipt of written notice thereof from Contractor, the City shall be in breach and Contractor shall have all rights and remedies that may be available under Applicable Law against City with respect thereto, including without limitation the right to suspend performance of the Work or terminate this Agreement as set forth in this Agreement.
(iii) City shall reimburse Contractor for all services rendered up to and including the date of termination; plus all costs incurred with respect to equipment or materials ordered (which order cannot be refunded, terminated or such costs otherwise
recovered by Contractor) prior to the date of termination; plus, if applicable, amounts payable to Subcontractors arising from costs or expenses reasonably incurred by such Subcontractor and directly resulting from such termination; plus, if applicable, costs incurred by Contractor in demobilizing its work force from Site; plus all engineering and development cost incurred by Contractor prior to the Effective Date.
7.4. Indemnity.
(a) Contractor shall indemnify, defend (upon the request of City) and hold harmless City and City's agents, board members, elected and appointed officials and officers, employees, volunteers and authorized representatives from any and all losses, liabilities, charges, damages, claims, liens, causes of action, awards, judgments, costs, and expenses (including, but not limited to, reasonable attorney's fees of City Counsel and counsel retained by City, expert fees, costs and staff time, and investigation costs) of whatever kind or nature (collectively "Claims"), that arise out of or are in any way connected with the performance of this Contract by Contractor or Contractor's officers, agents, employees, independent contractors, subcontractors, or authorized representatives, except where caused by the sole negligence, active negligence or willful misconduct of City. Without limiting the generality of the foregoing, the same shall include injury, or death to any person or persons, damage to any property, regardless of where located, including the property of City, and any workers' compensation claim or suit arising from or connected with any services performed pursuant to this Contract on behalf of Contractor by any person or entity. Notwithstanding the foregoing, the indemnification obligations of Contractor set forth in this Section shall not apply when the claim of infringement arises from a particular design, A-7917
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process or product of a particular manufacturer or manufacturers that Contractor is directed by City to use in connection with the Contract Documents, unless the Contractor has reason to believe there is an infringement of such intellectual property right.
(b) City shall fully indemnify, save harmless and defend Contractor and its successors, assigns, officers, directors, members, managers, employees, agents, affiliates and partners in connection with or arising from any claim by a third party for physical damage to or physical destruction of property, or death of or bodily injury to any person (other than Affiliates of Contractor or Subcontractors) arising from or relating to this Agreement, but only to the extent caused by (a) the negligence, gross negligence or willful misconduct of City or its agents or employees or others under City’s control or (b) a breach by City of its obligations hereunder.
(c) City shall indemnify, defend and hold Contractor and its present and future direct and indirect parents, subsidiaries and Affiliates and their directors, officers, shareholders, employees, agents and representatives harmless from against any and all claims, actions, suits, proceedings, losses, liabilities, penalties, damages, costs or expenses (including attorneys’ fees and disbursements) of any kind whatsoever arising from the challenge to the procedures under which this Agreement was approved by the City.
(d) Each Party shall indemnify, defend and hold the other Party, and its present and future governing board members, administrators, direct and indirect parents, subsidiaries and Affiliates and their directors, officers, shareholders, employees, agents and representatives harmless from and against any and all claims, actions, suits, proceedings, losses, liabilities, penalties, damages, costs or expenses (including attorneys’ fees and disbursements) of any kind whatsoever arising from (a) actual or alleged infringement or misappropriation by such Party (or in the case of Contractor, any Subcontractor) of any patent, copyright, trade secret, trademark, service mark, trade name, or other intellectual property right in connection with the System, including without limitation, any deliverable, (b) such Party’s (and in the case of Contractor, any Subcontractor’s) violation of any third-party license to use intellectual property in connection with the Work, including, without limitation, any deliverable.
(e) If any claim is brought against a Party (the “Indemnified Party”) that gives rise to a potential indemnity claim under this Section, then the Indemnified Party shall give written notice of said claim to the other Party A-7917
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(the “Indemnifying Party”). Upon receipt of written notice of the claim, the Indemnifying Party shall be entitled to participate in, and, unless in the opinion of counsel for the Indemnifying Party a conflict of interest between the Parties may exist with respect to such claim, assume the defense of such claim, with counsel reasonably acceptable to the Indemnified Party. Where the Indemnifying Party has elected not to assume the defense of a claim that gives rise to a potential indemnity claim under this Section, the Indemnifying Party shall reimburse the Indemnified Party for its reasonable and necessary defense expenses to the extent said claim is adjudged to be covered under the indemnity obligations. Even if the Indemnifying Party assumes the defense of the Indemnified Party with acceptable counsel, the Indemnified Party, at its sole option, may participate in the defense, at its own expense, with counsel of its own choice without relieving the Indemnifying Party of any of its obligations hereunder.
7.5. Limitations of Liability.
(f) No Consequential Damages. IN NO CIRCUMSTANCES SHALL THE
CONTRACTOR OR CITY OR ANY OF THEIR RESPECTIVE OFFICERS,
MEMBERS OR EMPLOYEES BE LIABLE FOR PUNITIVE, CONSEQUENTIAL OR
EXEMPLARY DAMAGES OF ANY NATURE INCLUDING, BUT NOT LIMITED
TO, DAMAGES FOR LOST PROFITS OR REVENUES OR THE LOSS OF USE OF
SUCH PROFITS OR REVENUE, LOSS BY REASON OF PLANT SHUTDOWN OR
INABILITY TO OPERATE AT RATED CAPACITY, COSTS OF REPLACEMENT
POWER OR CAPITAL, DEBT SERVICE FEES OR PENALTIES, INVENTORY OR
USE CHARGES, DAMAGES TO REPUTATION, DAMAGES FOR LOST
OPPORTUNITIES, REGARDLESS OF WHETHER SAID CLAIM IS BASED UPON
CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHER THEORY OF LAW. NOTWITHSTANDING THE
FOREGOING, THE LIMITATIONS ON PARTIES’ LIABILITY FOR
CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES IN THIS SECTION SHALL NOT APPLY TO THE PARTIES’ RESPECTIVE INDEMNITY
OBLIGATIONS AS SET FORTH IN THIS AGREEMENT FOR SUCH DAMAGES WHEN SUCH DAMAGES ARE SOUGHT BY THIRD PARTIES.
(g) Maximum Liability. Whether an action or claim is based on warranty, contract, tort or otherwise, under no circumstance shall either Party’s total liability arising out of or related to this Agreement exceed the greater of (a) one-hundred percent (100%) of the Contract Price, or (b) the minimum insurance limits as defined in Exhibit E.
8. MISCELLANEOUS
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8.1. Representatives.
(a) City Representative. City designates, and Contractor agrees to accept _______________, as City Representative for all matters relating to Contractor’s performance of the Work. The actions taken by City Representative regarding such performance shall be deemed the acts of City and shall be fully binding for City. City may, upon written notice to Contractor, pursuant to Section 8.6 hereof, change the designated City Representative.
(b) Contractor Representative. Contractor designates, and City agrees to accept, Kecia Davison as Contractor Representative for all matters relating to Contractor’s performance under this Agreement. The actions taken by Contractor Representative shall be deemed the acts of Contractor and shall be fully binding for Contractor. Contractor may, upon written approval of City, such approval shall not be unreasonably approved pursuant to Section 8.6 hereof, change the designated Contractor Representative.
(c) Power of Representatives. The Parties shall vest their Representatives with sufficient powers to enable them to assume the obligations and exercise the rights of Contractor or City, as applicable, under this Agreement.
(d) Notices to Representative. Notwithstanding Sections 8.1(a) and 8.1(b), all amendments, Change Orders, notices and other communications between Contractor and City contemplated herein shall be delivered in writing and otherwise in accordance with Section 8.6.
8.2. Ownership of Plans, Data, Reports and Material.
(a) Subject to Sections 8.2(b), Contract Documents developed by Contractor under this Agreement shall become the property of City when prepared and shall be delivered to City upon completion of the Work; provided that nothing in the foregoing shall impair, alter or otherwise affect Contractor’s proprietary rights in its patents, products or other intellectual property.
(b) Any additional inventions or intellectual property created during performance of this Agreement shall be owned by Contractor. (c) Contractor further agrees to grant and hereby grants to City an revocable, non-exclusive, royalty-free license under all patents, copyrights and other proprietary information of Contractor related to the Work now or hereafter owned or controlled by Contractor to the extent reasonably A-7917
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necessary for the operation, maintenance or repair of the System or any subsystem or component thereof designed, specified, or constructed by Contractor under this Agreement. No other license in such patents and proprietary information is granted pursuant to this Agreement.
8.3. Governing Law.
The formation, interpretation and performance of this Agreement shall be governed by and construed in accordance with the laws of the State of California. In the event of any Dispute that is not resolved pursuant to Section 8.5, the Parties hereto agree to submit to the jurisdiction of any court of competent jurisdiction and shall comply with all requirements necessary to give such court jurisdiction.
8.4. Force Majeure.
Contractor shall promptly notify City in writing of any delay or anticipated delay in Contractor’s performance of this Agreement due to a Force Majeure Event, and the reason for and anticipated length of the delay. Contractor shall deliver such notice as soon as reasonably practicable, but in any event within forty-eight (48) hours of Contractor’s becoming aware of such delay. Contractor shall be excused for any delays or defaults in the performance of its obligations under this Agreement that are the result of a Force Majeure Event. Contractor shall be entitled to a reasonable extension of time for delays due to a Force Majeure Event.
8.5. Dispute Resolution.
(a) Good faith negotiations. In the event that any question, dispute, difference or claim arises out of or in connection with this Agreement, including any question regarding its existence, validity, performance or termination (a “Dispute”), which either Party has notified to the other, senior management personnel from both Contractor and City shall meet and diligently attempt in good faith to resolve the Dispute for a period of thirty (30) Calendar days following one Party’s written request to the other Party for such a meeting.
(b) Technical Dispute. Technical Disputes shall be resolved by an independent expert. For the purposes of this Agreement, a “Technical Dispute” shall mean a Dispute regarding whether the System conforms to the Industry Standards and applicable Building Codes, whether the relevant part of the Site where the System is located meets the required Site characteristics, and any other Disputes of a technical or engineering nature. All Technical Disputes shall be resolved on an accelerated basis by a nationally recognized professional expert unless otherwise agreed in A-7917
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writing by Contractor and City. Parties will share equally in the cost of the independent expert engaged to resolve Technical Disputes. (c) Non-Binding Mediation. If the Dispute remains unresolved, a Party may require that a non-binding mediation take place with a mediator mutually chosen by City and Contractor. If City and Contractor are unable to agree on a mediator, then either may request that the American Arbitration Association (the “AAA”) to appoint a mediator. The mediator’s fee and expenses shall be paid one-half by City, and one-half by Contractor. In any such mediation, representatives of the Parties with authority to resolve the dispute shall meet for at least three hours with mediator. The obligation to mediate shall not be binding upon any Party with respect to (i) requests for preliminary injunctions, temporary restraining orders, specific performance, or other procedures in a court of competent jurisdiction to obtain interim relief deemed necessary by such court to preserve the status quo or prevent irreparable injury pending resolution by mediation of the actual Dispute; (ii) actions to collect payments not subject to bona fide Dispute; or (iii) claims involving third parties who have not agreed to participate in the mediation of the Dispute. The provisions of this Section shall survive any termination of this Agreement. (a) Attorneys’ Fees. The prevailing Party in any action brought to enforce the terms of this Agreement or arising out of this Agreement may recover its reasonable costs and attorneys’ fees expended in connection with such an action from the other Party.
8.6. Notices and Demands.
Any notice, request, demand or other communication required or permitted under this Agreement, shall be deemed to be properly given by the sender and received by the addressee if made in writing (a) the same day if personally delivered; (b) three (3) Business days after deposit in the mail if mailed by certified or registered air mail, post prepaid, with a return receipt requested; or (c) the same day if sent by facsimile or electronic mail with confirmation. Mailed notices, facsimile notices or electronic notices shall be addressed as follows to:
City:
Name: ___________________
Attention: ___________________
Address: ___________________
Phone: ___________________
Email: ___________________
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With a copy to: City Counsel
Name:
Attention:
Address:
Phone:
Email
Contractor:
Name: SitelogIQ, Inc.
Attention: Kecia Davison, President, West Energy
Address: 1651 Response Rd. Suite 300
Sacramento, CA 95815
Phone: (888) 819-0041
E-mail: [email protected]
8.7. Public Records Act Disclosure.
Contractor has been advised and is aware that all reports, documents, information and data including, but not limited to, computer tapes, discs or files furnished or prepared by Contractor, or any of its subcontractors, and provided to City may be subject to public disclosure as required by the California Public Records Act (California Government Code Section 6250 et seq.). Exceptions to public disclosure may be those documents or other information that qualify as trade secrets, as that term is defined in the California Government Code Section 6254.7, and of which Contractor informs City of such trade secret. The City will endeavor to maintain as confidential all information obtained by it that is designated as a trade secret. City shall provide Contractor five (5) Business days written notice if City intends to disclose any information which Contractor has identified as trade secret, and provide Contractor ten (10) Business days to take steps to oppose such disclosure.
8.8. Time of Essence.
Time is expressly agreed to be of the essence of this Agreement and each, every and all of the terms, conditions and provisions herein.
8.9. Validity.
The provisions contained in each section, subsection and clause of this Agreement shall be enforceable independently of each of the others and their validity shall not be affected if any of the others are invalid. If any of those provisions is void but would be valid if some A-7917
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part of the provision were deleted, the provision in question shall apply with such modification as may be necessary to make it valid. The Parties shall, if necessary, negotiate in good faith and make any necessary amendments to ensure the enforceable terms of this Agreement reflect the true intent of the Parties as of the date of execution of this Agreement.
8.10. Binding Effect.
This Agreement shall be binding on the Parties hereto and on their respective permitted successors, heirs and assigns.
8.11. Modifications.
No oral or written amendment or modification of this Agreement by any administrator, Board member, officer, agent or employee of Contractor or City, either before or after execution of this Agreement, shall be of any force or effect unless such amendment or modification is in writing and is signed by any duly authorized representative of both Parties to be bound thereby.
8.12. Headings.
The headings in this Agreement are for convenience of reference only and the words contained therein shall in no way be held to explain, modify, amplify or aid in the interpretation, construction or meaning of the provisions of this Agreement.
8.13. Counterparts; Signature Pages.
This Agreement may be executed in counterparts which, taken together, shall constitute a single instrument. Facsimile and other electronically transmitted signature pages shall be effective to bind a Party to this Agreement.
8.14. Announcements and Publications.
Contractor shall coordinate with City with respect to, and provide advance copies to City for review of, the text of any proposed announcements or publications that include any non-public information concerning the Work prior to the dissemination thereof to the public or to any Person other than Subcontractors or advisors of Contractor, in each case, who agree to keep such information confidential. If City delivers written notice to Contractor rejecting any such proposed announcement or publication within ten (10) Business Days after receiving such advance copies, the Contractor shall not make such public announcement or publication; provided, however, that Contractor may disseminate or release such information in response to requirements of Governmental Authority.
8.15. Complete Agreement.
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This Agreement together with the Exhibits hereto completely and exclusively states the agreement of the Parties regarding its subject matter and its terms govern, all prior proposals, agreements, or other communications between the Parties, oral or written, regarding such subject matter. No oral agreement or conversation with any officer or employee of either Party or any or all prior proposals shall affect or modify any of the terms and conditions of this Agreement. This Agreement shall not be modified except by written amendment signed on behalf of the City and Contractor by their duly authorized representatives. Any purported oral amendment to the Agreement shall have no effect.
8.16. No Agency.
This Agreement is not intended, and shall not be construed, to create any association, joint venture, agency relationship or partnership between the Parties or to impose any such obligation or liability upon either Party. Neither Party shall have any right, power or authority to enter into any agreement or undertaking for, or act as or be an agent or representative of, or otherwise bind, the other Party.
8.17. Priority of Documents.
In the event of conflicting provisions between any of the Contract Documents, the provisions shall govern in the following priority: first, duly executed amendments to this Agreement (to the extent not superseded by a subsequent amendment); second, this Agreement; third, Work Order in Exhibit C, and fourth, the other Contract Documents.
8.18. Assignment.
No Party shall be entitled to assign or subcontract this Agreement or any of its rights or obligations under this Agreement, nor shall it enter into any transaction as a result of which it may transfer, assign, charge or dispose by any title of any of those rights and obligations, without the prior written consent of the other Party, which shall not be unreasonably withheld, provided that Contractor may subcontract that portion of the Work to Subcontractors. Notwithstanding the foregoing, (i) without the consent of the Contractor, City shall be entitled to assign its right, title and interest in and to this Agreement (and, in particular, any rights arising in relation to any insurance policy and any other right to collect any amount from Contractor) to any lenders by way of security for the performance of obligations to such lenders; (ii) without consent of the City, Contractor shall be entitled to assign its right, obligation, title and interest in and to this Agreement in connection with a merger or acquisition of Contractor; and (iii) without consent of City, Contractor shall be entitled to assign its right, obligation, title and interest in and to this Agreement to an Affiliate of the Contractor.
8.19. No Waiver.
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Either Party's failure to enforce any provision of this Agreement of the waiver thereof in a particular instance shall not be construed as a general waiver of any part of such provision. The provision shall remain in full force and effect. [Signatures on following page]
IN WITNESS WHEREOF, the Parties hereto have duly executed and delivered this Agreement as of the date set forth above.
City of __________________,
a City organized and existing under the laws
of the State of California
By: ____________________________
Name: ___________________
Title: ___________________
SitelogIQ, Inc.,
a Delaware corporation
By: ____________________________
Name: Kecia Davison
Title: President, West Energy
Contractor’s License #: 1054171
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EXHIBIT A
DEFINITIONS
“Affiliate” of a specified Person means any Person that directly or indirectly through one or more intermediaries’ controls, is controlled by, or is under common control with, such specified Person.
As used in this definition of Affiliate, the term "control" of a specified Person including, with correlative meanings, the terms, "controlled by" and "under common control with," means (a) the ownership, directly or indirectly, of 50% or more of the equity interest in a Person or (b) the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise. “Agreement” shall have the meaning set forth in the preamble. “Applicable Law” shall mean, with respect to any Governmental Authority, any constitutional provision, law, statute, rule, regulation, ordinance, treaty, order, decree, judgment, decision, certificate, injunction, registration, license, permit, authorization, guideline, governmental approval, consent or requirement of such Governmental Authority, as construed from time to time by any Governmental Authority.
“Applicable Permits” means those permits identified as the responsibility of Contractor as determined in Exhibit C.
“Authority Having Jurisdiction (AHJ)” means those local, state, or federal entities having regulatory authority over a specific aspect of the Project, such as building officials, Department of State Architecture, and fire departments.
“Business Day” means Mondays to Fridays, except such days on which banks are permitted or required to close in California.
“Certificate of Substantial Completion” shall mean a document in similar form to Exhibit F. “Certificate of Final Completion” shall mean a document in similar form to Exhibit F. “Change” shall means any addition to, deletion from, suspension of, or other modification to the quality, function, or intent of the Work, including without limitation any such addition, deletion, suspension, or other modification that effects a change in the scope of the Work. An “Unanticipated Condition” as defined in Section 3.5 hereof, experienced by Contractor during the course of the Work is included within the definition of “Change”. “Change Order” shall mean a written document signed by City and Contractor to adjust the Work Order Price or Construction Schedule as a result of a Change issued after execution of this Agreement.
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“Commencement of Work” shall mean the commencement of Work for each Work Order. “Construction Schedule” shall mean the schedule for implementation of the Work as determined by the Contractor to meet the Project Milestones as set forth on Exhibit C. “Construction Documents” shall mean construction documents prepared by Contractor and approved by City.
“Contract Documents” shall mean this Agreement and Exhibits hereto, and drawings, specifications, plans, calculations, models and designs that are part of this Agreement and the Construction Documents prepared by Contractor and approved by City. “Contractor” shall have the meaning set forth in the preamble. “Contractor Representative” shall mean the individual designated by the Contractor in accordance with Section 8.1(b).
“Day” means calendar day unless it is specified that it means a “Business Day”. “Dispute” shall have the meaning set forth in Section 8.5(a). “City” shall have the meaning set forth in the Preamble to this Agreement. “City Permits” means those permits identified as the responsibility of City in Exhibit C. “City’s Representative” shall mean the individual designated by City in accordance with Section
8.1(a).
“Dollar” and “$” shall mean the lawful currency of the United States of America. “Effective Date” shall mean the date first set forth in the preamble. “Environmental Attributes” means all environmental and other attributes that differentiate the System or the energy generated by fossil-fuel based generation units, fuels or resources, characteristics of the System that may result in the avoidance of environmental impacts on air, soil or water, such as the absence of emission of any oxides of nitrogen, sulfur or carbon or of mercury, or other gas or chemical, soot, particulate matter or other substances attributable to the System or the compliance of the System or the energy output with the law, rules and standards of the United Nations Framework Convention on Climate Change (the “UNFCCC”) or the Kyoto Protocol to the UNFCCC or crediting “early action” with a view thereto, or laws or regulations involving or administered by the Clean Air Markets Division of the Environmental Protection Agency or successor administrator or any state or federal entity given jurisdiction over a program involving transferability of Environmental Attributes and Reporting Rights. “Environmental Incentives” means all rights, credits (including tax credits), grants, rebates, benefits, reductions, offsets and allowances and entitlements of any kind, howsoever entitled or A-7917
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named (including carbon credits and allowances), whether arising under federal, state or local law, international treaty, trade association membership or the like arising from the Environmental Attributes of the System on each Site or the energy output or otherwise from the development, construction, installation or ownership of the System on each Site or the production, sale, purchase, consumption or use of the energy output from each Site. Without limiting the forgoing, “Environmental Incentives” includes green tags, renewable energy credits, grants, tradable renewable certificates, portfolio energy credits, the right to apply for (and entitlement to receive) incentive programs offered by the State of California and the right to claim federal income tax credits under Section 45 or 48 of the Code as such credits are available arising from the Environmental Attributes of the system on each Site or the energy output or otherwise from the development, construction, installation or ownership of the System on each Site or the production, sale, purchase, consumption or use of the energy output from each Site. “Equipment” shall mean (a) all materials, supplies, apparatus, machinery, equipment, parts, tools, components, instruments, appliances, spare parts and appurtenances thereto that are required for prudent design, construction or operation of the System in accordance with Industry Standards and (b) all materials, supplies, apparatus, machinery, equipment, parts, tools, components, instruments, appliances, spare parts and appurtenances thereto described in, required by, reasonably inferable from or incidental to the Work or the Contract Documents. “Excusable Delay” shall mean a Delay outside of Contractor’s control that prevents Contractor from achieving the Commercial Operation Date for any System in accordance with the Project Schedule, and to the ex tent that such Delay adversely affects the Work such that the performance of the Work is prevented or delayed, Contractor shall be entitled to an adjustment in the Construction Schedule and deadlines of this Agreement. For purposes of this Agreement, an Ex cusable Delay shall include any of the following events:
(a) an act or failure to act of, or other delay caused by, or negligence of, City or its agents or employees;
(b) changes in the design, scope or schedule of the Project unilaterally required by the City;
(c) the suspension of Work in whole or in part by City; (d) labor disputes, fire, vandalism, delay in manufacturing and deliveries;
(e) adverse weather conditions not reasonably anticipated and in excess of 150% of the normal weather ( e.g., rain, snow, sleet) for the lo cal geographic area for the past ten (10) years as measured in a given month;
(f) unforeseen conditions at any Site, including discovery or existence of Hazardous Substances;
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(g) the occurrence of a Force Majeure, or other unavoidable casualties or other causes be yond Contractor’s control; (h) the failure to obtain any Utility Interconnection Agreement, permission to operate, Applicable Permit, CEQA/NEPA
approval or approval of a Governmental Authority or delays caused by changes and/or modifications to the Scope of Wo rk as required by any Governmental Authority having jurisdiction over the Project;
(i) any equipment or material delays caused by suppliers or vendors;
(j) adverse changes to regulatory requirements;
(k) any breach of this Agreement or the Utility Interconnection Agreement or any information provided to the Contractor by City or Utility is inaccurate or incomplete; or
(l) any other cause outside Contractor’s control after Contractor’s best efforts to mitigate that delay, to the extent that Contractor is able to mitigate such delay, provided that a failure to perform of Contractor’s subcontractors’ shall not be an Excusable Delay, unless such subcontractors are unable to perform the Work as a result of any of the events described in this definition of “Excusable Delay”.
“Facility” shall mean any and all properties of the City upon which the System shall be constructed or to which the System shall be connected, including land, buildings, structures, equipment, and electrical tie-in points.
“Final Completion” shall mean satisfaction or waiver of all of the conditions for completion of that portion of the System applicable to a particular Work Order as set forth in Section 5.2. “Force Majeure Event” shall mean, when used in connection with the performance of a Party’s obligations under this Agreement, any act or event (to the extent not caused by such Party or its agents or employees) which is reasonably unforeseeable, or being reasonably foreseeable, reasonably unavoidable (including by taking prudent protective and preventative measures) and outside the control of the Party which invokes it, and which renders said Party unable to comply totally or partially with its obligations under this Agreement. In particular, any of the following shall be considered a Force Majeure Event:
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a. war (whether or not war is declared), hostilities, revolution, rebellion, insurrection against any Governmental Authority, riot, terrorism, acts of a public enemy or other civil disturbance;
b. acts of God, including but not limited to, unusually severe storms, floods, lightning, earthquakes, hailstorms, ice storms, tornados, typhoons, hurricanes, landslides, volcanic eruptions, winds in excess of ninety (90) miles per hour, drought, and objects striking the earth from space (such as meteorites) sabotage or destruction by a third party (other than any contractor retained by or on behalf of the Party) of FACILITY and equipment relating to the performance by the affected Party of its obligations under this Agreement;
c. strikes, walkouts, lockouts or similar industrial or labor actions or disputes, in each case of a regional or national nature;
d. changes in Applicable Law after the Effective Date that materially impact a Party’s ability to perform under this Agreement; and
e. acts of any Governmental Authority that materially restrict or limit Contractor’s access to the Site.
f. plague, epidemic, pandemic, outbreaks of infectious disease or any other public health crisis, including quarantine or other restrictions. g. explosion, fire, destruction of machines, equipment, factories and of any kind of installation, prolonged break-down of transport, telecommunication or electric current
“Governmental Authority” shall mean any national, autonomic, regional, province, town, City, or municipal government, or other administrative, regulatory or judicial body of any of the foregoing.
“Hazardous Material” shall mean oil or petroleum and petroleum products, asbestos and any asbestos containing materials, radon, polychlorinated biphenyl’s (“PCBs”), urea formaldehyde insulation, lead paints and coatings, and all of those chemicals, substances, materials, controlled substances, objects, conditions and waste or combinations thereof which are now listed, defined or regulated in any manner by any federal, state or Applicable Law. “Indemnified Party” shall have the meaning set forth in Section 7.4. “Indemnifying Party” shall have the meaning set forth in Section 7.4.
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“Industry Standards” shall mean those standards of care and diligence normally practiced by a majority of engineering, construction and installation firms in performing services of a similar nature in jurisdictions in which the Work will be performed and in accordance with good construction practices, Applicable Permits, and other standards established for such Work. “Manufacturer Warranty” shall have the meaning set forth in Exhibit C. “Notice to Proceed Date” shall mean the date that City has granted Contractor the Notice to Proceed for the Work.
“Party” shall mean, individually, each of the parties to this Agreement. “Performance Tests” means, the tests of the System, as more particularly described in Exhibit C. “Person” shall mean any individual, corporation, partnership, company, joint venture, association, trust, unincorporated organization or Governmental Authority. “Project” shall mean the entirety of Work to be performed by Contractor pursuant to the terms and conditions of the Work and any Change Orders.
“Representatives” shall mean the Contractor Representative and the City Representative and each may individually be referred to as a "Representative". “Rock” is defined as limestone, sandstone, granite or similar rocks in solid beds or masses in original or stratified position which can be removed only by continuous drilling, blasting or the use of pneumatic tools, and all boulders of 1 cubic yard in volume or larger . Material which can be loosened with a pick, frozen materials, soft laminated shale and hardpan, which for convenience or economy is loosened by drilling, blasting, wedging or the use of pneumatic tools, shall not be classified as “Rock”.
“City” shall have the meaning set forth in preamble.
“Site” shall have the meaning set forth in the first recital, and is more fully described in Exhibit C.
An individual Site shall mean any area of a property owned by the City upon which a System is constructed.
“Solar Plant” shall mean that portion of the System only related to converting solar radiation into electricity and explicitly excludes all energy conservation technologies. “Subcontractor” shall mean any Person, other than Contractor and Suppliers, retained by Contractor to perform any portion of the Work (including any Subcontractor of any tier) in furtherance of Contractor’s obligations under this Agreement. “Substantial Completion” shall mean satisfaction or waiver of all of the conditions for completion of that portion of the System applicable to a particular Work Order as set forth in Section 5.1(d).
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“Substantial Completion Date” shall mean the actual date on which the Substantial Completion of the System, as defined in Section 5.1(d), has occurred. “Suppliers” shall mean those Equipment suppliers with which Contractor contracts to build the System.
“System” shall have the meaning ascribed in the Recitals to this Agreement. “Technical Dispute” shall have the meaning set forth in Section 8.5(b). “Third Party” shall have the meaning of any persons or entity not affiliated with Contractor or City.
“Unanticipated Condition” shall have the meaning set forth in Section 3.5. “Work” shall mean all obligations, duties, and responsibilities assigned to or undertaken by Contractor and described in Exhibit C with respect to the System. “Work Order” shall mean the assigned Work for each Site as described in Exhibit C. “Work Order Price” shall mean the amount for performing the Work that is payable to Contractor as set forth in Section 3.2, as the same may be modified from time to time in accordance with the terms hereof, and as described in Exhibit C.
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EXHIBIT B
CERTIFICATIONS
Exhibit B-1 Drug-Free Workplace / Tobacco-Free Environment Certification Exhibit B-2 Non-Collusion Declaration
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DRUG-FREE WORKPLACE / TOBACCO-FREE ENVIRONMENT CERTIFICATION (EXHIBIT B-1)
Government Code section 8350 et seq., the Drug-Free Workplace Act of 1990, requires that every person or organization awarded a contract or grant for the procurement of any property or service from any state agency must certify that it will provide a drug-free workplace by doing certain specified acts. In addition, the Act provides that each contract or grant awarded by a state agency may be subject to suspension of payments or termination of the contract or grant, and the contractor or grantee may be subject to debarment from future contracting, if the contracting agency determines that specified acts have occurred. The City of ___________ is not a "state agency" as defined in the applicable section(s) of the Government Code, but the City is a local agency and City under California law and requires all contractors on City projects to comply with the provisions and requirements of Government Code section 8350 et seq., the Drug-Free Workplace Act of 1990. Contractor shall certify that it will provide a drug-free workplace by doing all of the following:
1 Publishing a statement notifying employees that the unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance is prohibited in the person’s or organization’s workplace and specifying actions which will be taken against employees for violations of the prohibition;
2 Establishing a drug-free awareness program to inform employees about all of the following:
a. The dangers of drug abuse in the workplace.
b. The person’s or organization’s policy of maintaining a drug-free workplace. c. The availability of drug counseling, rehabilitation, and employee-assistance programs.
d. The penalties that may be imposed upon employees for drug abuse violations. 3 Requiring that each employee engaged in the performance of the contract or grant be given a copy of the statement required above, and that, as a condition of employment on the contract or grant, the employee agrees to abide by the terms of the statement.
I understand that if the City determines that I have either (a) made a false certification herein, or (b) violated this certification by failing to carry out the requirements of section 8355, that the Contract awarded herein is subject to termination, suspension of payments, or both. I further understand that, should I violate the terms of the Drug-Free Workplace Act of 1990, I may be subject to debarment in accordance with the requirements of section 8350 et seq.
I acknowledge that I am aware of the provisions of Government Code section 8350 et seq. and hereby certify that I will adhere to the requirements of the Drug-Free Workplace Act of 1990.
In addition, and pursuant to, without limitation, 20 U.S.C section 6083, Labor Code section 6400 et seq., Health & Safety Code section 104350 et seq. and City Board Policies, all City sites, including the A-7917
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Sites, are tobacco-free environments. Smoking and the use of tobacco products by all persons is prohibited on or in City property. City Property includes buildings, grounds, owned vehicles and vehicles owned by others while on City property. I acknowledge that I am aware of the City policy regarding tobacco-free environments and hereby certify that I will adhere to the requirements of that policy and not permit any of my firm’s employees, agents, subcontractors, or my firm’s subcontractors’ employees or agents to use tobacco and/or smoke on the Sites.
Date:
Proper Name of Contractor: SitelogIQ
Signature: _______________________________
Print Name: Kecia Davison
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NONCOLLUSION DECLARATION
(EXHIBIT B-2)
(Public Contract Code § 7106)
The undersigned declares:
I am the President of SitelogIQ West, the party making the foregoing Contract.
The Contract is not made in the interest of, or on behalf of, any undisclosed person, partnership, company, association, organization, or corporation. The Contract is genuine and not collusive or sham. Contractor has not directly or indirectly induced or solicited any other entity to put in a false or sham bid or proposal. Contractor has not directly or indirectly colluded, conspired, connived, or agreed with any other designer/builder or anyone else to put in a sham bid or proposal, or to refrain from proposing. Contractor has not in any manner, directly or indirectly, sought by agreement, communication, or conference with anyone to fix the Contract Price of Contractor or any other entity, or to fix any overhead, profit, or cost element of the Contract Price, or of that of any other entity. All statements contained in the Contract are true. Contractor has not, directly or indirectly, submitted his or her Contract Price or any breakdown thereof, or the contents thereof, or divulged information or data relative thereto, to any corporation, partnership, company, association, organization, bid depository, governing agency, or to any member or agent thereof, to effectuate a collusive or sham bid or proposal, and has not paid, and will not pay, any person or entity for such purpose.
Any person executing this declaration on behalf of a Contractor that is a corporation, partnership, joint venture, limited liability company, limited liability partnership, or any other entity, hereby represents that he or she has full power to execute, and does execute, this declaration on behalf of Contractor.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration is executed on the following date:
.
Date:
Proper Name of Contractor: SitelogIQ
Signature: _______________________________
Print Name: Kecia Davison
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EXHIBIT C
WORK ORDERS
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Work Order 1
Photovoltaic (PV) Renewable Energy System Installation and Battery Energy Storage System (BESS) Scope of Work
PROJECT SCOPE OF WORK INDEX
Section 1 Scope of Work
Section 2 Proposed Project Installation Timeline & Coordination Section 3 Work Milestones
Section 4 Fixed Price Amount
Section 5 Progress Payment Schedule
Section 6 Performance and Payment Bonds
1.0 SCOPE OF WORK
General
The scope of work for the new systems include engineering, permitting, procurement, construction, and commissioning, supervision, materials and supplies, labor, tools, construction equipment and machinery, utilities and transportation for the proper execution and completion of a fully integrated and operational System, unless otherwise excluded in this Scope of Work.
Contractor shall perform, supervise, and direct the Work in accordance with Industry Standards, Applicable Law and Project Milestone dates.
1.1 System Summary
The solar PV & BESS systems installation will be installed as illustrated in the Site Layout Plans & Single Line Diagram provided in Section 1.13. Any changes to the location, size, or orientation shall constitute a Change Order. In summary, the systems will include the following:
1. McAdam Park solar installation will include one (1) electricity grid-connected carport structure photovoltaic system with a total rated approximate capacity of 84.7 kW-DC- STC.
2. McAdam Park battery installation will include one (1) 125kW / 500kWh battery energy storage system. BESS equipment will be STEM product line 8.0.5.A-125-534 with Sungrow ST556KWH-250UD enclosure or similar.
Includes SEL-700G relay, Automatic Transfer Switch, and Mini Power Center with 5kVA transformer.
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In general, the Systems above will consist of the following:
a. PV modules
b. PV module support structure
c. Batteries
d. Inverter(s)
e. System electrical protection
f. Electrical disconnects
g. Switchgear
h. Automatic Transfer Switch (ATS)
i. Relays
j. Fuses and/or breakers
k. Transformers
l. Control and monitoring systems
m. Outdoor rated equipment enclosures
n. Cables, wires, jumpers, connectors, system grounding and associated trenching and/or boring
o. Equipment foundations
p. Lighting (under canopy only)
q. Signage
1.2 Engineering Design Services
Contractor shall be responsible for detailed design and operational coordination of equipment and materials installed for the System. Contractor shall conform to Industry Standard and Applicable Law. The following design services shall be provided by Contractor:
A. Civil Engineering design, including the preparation of the following:
Site Plan
Geotechnical Report (if required)
B. Structural Engineering Design, including:
Foundations and other structural concrete
PV module support structural design
Structural design calculations, as required
C. Electrical Systems design, including:
PV modules
Inverter
BESS
DC combiners, disconnects, fuses, and wiring
AC breakers and disconnects
Revenue metering
Enclosures, conduit, and wiring
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Other electrical systems included in the scope of work
1.3 Permits
Contractor shall obtain and shall file on a timely basis any documents required to obtain Applicable Permits except those permits that are the responsibility of the City (“City Permits”).
City shall obtain, and shall file on a timely basis, any documents required to obtain all such City Permits. City shall pay for all taxes, fees, and costs required to obtain all Permits.
Applicable Permits include:
o General Construction and Building Permits
City Permits include:
o CEQA (Categorical Exemption certified by the City is assumed for this project) o Easements required to complete the work.
o All other permits required for construction of the System, except for Applicable Permits
1.4 Procurement
Contractor shall procure all materials and equipment included in the Scope of Work for the installation of a complete System under this Scope of Work.
1.5 Construction Services
The following services shall be provided by Contractor as part of the general construction activities:
A. Civil construction, including surveying, clearing, grubbing, excavation, trenching, and backfill.
A.1. Backfill with native soil & compact to 90% in landscape areas A.2. Backfill with 1-sack slurry, restore to match existing conditions in roadways B. Structural construction, including foundations, concrete work, grouting, anchors, erection of PV racks, shade structures, and other support structures C. Electrical construction, including PV modules, BESS, combiners, inverter, disconnects, wiring, breakers, metering, control and monitoring systems, telecom systems, and lighting systems as required for a complete System.
D. Safety services, including on-site safety equipment, personnel training, and safety monitoring of construction activities
E. Support services, including Contractor’s trailers, shaded worker rest areas, restroom facilities, and security
F. Coordination with City’s staff for site access, laydown, and storage with minimal interference to normal operations.
G. Operator training services
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H. Restoration of landscape and hardscape to pre-construction condition, or in accordance with new design, as needed
I. Construction inspections, material verification, and testing as required J. Lawful Disposal of refuse, spoils, chemicals, and waste materials associated with construction activities
K. Testing and start-up services for electrical and control systems included in the scope of work. Testing shall include pre-operational functional tests, equipment calibration, and insulation resistance tests. All necessary test equipment and instrumentation will be provided.
L. Miscellaneous consumable materials required to erect the System M. Coordination with City’s Staff and Representatives, including Inspector of Record (“IOR”) for all inspections and submittals.
1.6 Documentation Submittals
Contractor will prepare and submit designs, drawings, and specifications to the City for review and approval. City shall review the documents and provide any comments in writing to Contractor within ten (10) Business Days after receipt of such documents (the “Design Review Period”). Contractor will proceed with the assumption that City has approved the documents if no comments are received within ten (10) Business Days. Any comments provided by City after ten (10) Business Days that result in re-work shall constitute a Change Order. City shall consolidate all comments for each review cycle such that Contractor does not receive comments in separate submittals at different times from various City personnel. Any re-work as a result of receiving comments in separate submittals shall constitute a Change Order. To the extent consistent with Applicable Law and Industry Standards, Contractor will incorporate City comments into the final designs, drawings, and specifications (the “Construction Documents”), as applicable. Contractor shall submit such revised documents to City for additional Design Review Periods, which shall not extend longer than ten (10) Business Days, until City approves such revised documents subject to the terms of the Agreement.
The following list is not all inclusive but defines the Contract Documents that are required to be submitted by Contractor for review and approval by the City.
A. Facility drawing with Project improvements drawn to scale (Site Plan) B. Electrical design package including:
Single Line AC and DC diagrams
Communication, Monitoring and Control schematics
Electrical Circuit and Conduit schedule
Electrical Equipment installation plans
Lighting plan, if required
Placard schedule
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Equipment data sheets
C. Structural Calculations package including:
Ground structural elements for ground-mount systems
Equipment foundations and enclosures
Security fencing
D. System energy production calculations and software model based on Site Plan E. Approved Applicable Permits
F. Geotechnical report including Project applicable soil properties (if required) G. Project Schedule
H. Environment, Health and Safety Plan
I. System Manual with specifications, startup, commissioning and testing procedures for relevant equipment.
J. System Operation and Maintenance manual (O&M plan)
K. As-Builts (Record Drawings)
L. Professional Engineer Wet Stamps and signatures on final design documents:
Electrical Design package
Structural Calculation package
M. Interconnection Agreement with Local Utility
N. Documentation for Rate Change with Local Utility
1.7 Workmanship Warranty
Commencing on the Final Completion Date and for a period of one (1) year thereafter, Contractor warrants that the Systems will be free from defects (“Workmanship Warranty”). If a System has a defect, and City provides written notification of said defect within the one (1) year workmanship warranty period, Contractor will, at its option, either repair or replace the portion of the System that is defective at no cost to City within forty-five (45) days of notification. The Workmanship Warranty shall not apply to the extent such defect is caused by any of the following:
(b) Alterations or repairs made to the supporting structure of any System or associated wiring and parts without Contractor's prior written approval; (c) Failure of a System to perform caused by legislative, administrative, or executive regulation, order or requisition of the government, local utility or public utilities commission, or any state, provincial or municipal government or official;
(d) Use of a System beyond the scope contemplated in its operating manuals or technical specifications;
(e) Damage to a System not caused directly or indirectly by Contractor or its subcontractors under any agreement between Contractor and City; (f) Force Majeure Events;
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in ownership of building or property and the new owner has not signed an assumption agreement of the terms and conditions herein, (h) Any defect of deficiency to the extent the same results from a specific written direction from the City if, prior to implementing such written direction, Contractor advised City that City’s written direction would so affect the warranty provided by Contractor hereunder.
1.8 Manufacturer Warranties
Contractor shall procure and assign to City warranties from the equipment manufacturers (the “Manufacturer Warranty”) to the extent said equipment is purchased and provided for the Solar Plant by Contractor. Solar energy equipment included in the scope of work for electricity generation (PV modules, inverters) shall have a minimum ten (10) year manufacturer performance warranty to protect against degradation of electrical generation output of more than 15% from their originally rated electrical output. Except as expressly provided in this Agreement, Contractor’s obligations under this warranty do not apply to any defects whatsoever in the equipment purchased and provided by Contractor for the Solar Plant, provided Contractor has procured and assigned to City the Manufacturer Warranty of such equipment. Contractor makes no representation or warranty, and City shall seek no recourse from Contractor, regarding the Manufacturer Warranties, including, without limitation, any degradation in electrical generation output of the PV modules.
Contractor shall require that Manufacturers provide the following warranties:
a. Inverters shall have a ten (10) year standard Manufacturer Warranty. b. PV modules shall have the following standard Manufacturer Warranties:
i. Five (5) year material and workmanship warranty;
ii. Ten (10) year power output warranty at ninety percent (90%) of rated nominal power output; and
iii. Twenty-five (25) year power output warranty at eighty percent (80%) of rated nominal power output.
c. Meters shall have a one (1) year standard Manufacturer Warranty. d. Battery Storage Equipment shall have a ten (10) year standard Manufacturer Warranty
1.9 Project Closeout
a. Contractor shall deliver to City an owner’s manual, operator’s manual and as- built drawings for the System no later than ninety (90) days after Substantial Completion occurs. For the avoidance of doubt, the as-built drawings shall be included in the punchlist items.
b. At City’s request, Contractor shall provide City’s personnel with no less than one (1) full Day of detailed and complete on-site operation training with respect to the System. City’s personnel shall have the qualifications necessary to perform A-7917
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their activities and will be hired by City or its Affiliate. Contractor shall provide City reasonable assistance in soliciting and obtaining any subsidies, rebates or incentives that may be available from any Governmental Authority pursuant to or in connection with the purchase or operation of the System or otherwise.
Contractor makes no representation nor warranty to City as to the availability or amount of any such subsidies, rebates or incentives.
1.10 City Responsibilities
Contractor shall not be obligated to perform any work or activity beyond the scope of the work and its other obligations under this Agreement. In particular, the following shall not be included in the Scope of Work and therefore shall be performed by City:
a. The City shall furnish, to the extent not already provided to Contractor: (a) all surveys or other information in City’s possession that describe the physical characteristics, legal limitations, and utility locations in and around the Site; (b) any prior environmental review documentation and all known information in City’s possession concerning subsurface conditions, including without limitation the existence of any known Hazardous Materials, in or around the general area of the Site where the Work will be performed; (c) all relevant information in City’s possession, including any structural or other relevant as-built drawings and photographs, of prior construction undertaken in the general area where the Work will be performed; (d) title reports less than one (1) year in age; and (e) any and all easements, zoning variances, planning approvals, including any resolution of any environmental impact issues, and any other legal authorization regarding utilization of the Site essential to the execution of the Work.
b. City shall provide continuous access to the Site to perform the Work according to the Construction Schedule;
c. City shall make water source available at the Site for construction water; d. City shall obtain the City Permits;
e. City shall be responsible for hiring and paying for a Division of State Architect certified Inspector of Record;
f. City shall select its own personnel so that it is present at the date of Substantial Completion;
g. City shall pay for and provide communication access for system monitoring; h. City shall pay for all taxes, fees, and costs required to obtain all Permits; i. City shall provide access to, and allow Contractor the use of, water lines, sewer lines, storm water lines, power lines, fuel lines, telephone and communication lines, pipelines, and drainage ditches; and
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j. City shall be responsible for operating the System from and after Substantial Completion.
1.11 General Clarifications & Qualifications to Scope of Work a. Scope of Work Price assumes one (1) review cycle by City of the equipment layout drawings, one (1) review cycle by City of final design documentation, and one (1) final set of as-built drawings delivered to City in electronic format and hard copy. b. Schedule and Scope of Work Price assumes City will review and provide comments on drawings within 10 business days.
c. Installation of approximately 4,999 SF of T canopies. d. HSS columns and HSS beams with Light Gauge Steel purlins. e. 1 array in Portrait orientation.
f. 28'-6'' column spacing assumed.
g. 5-degree tilt assumed.
h. 10'-0'' clear height assumed for all structures.
i. All arrays assumed to follow existing grade.
j. No soils reports have been provided by the client. SitelogIQ will complete a soils report. SitelogIQ is currently assuming a foundation depth of 12 ft and diameter of 24 in with average drilling conditions and a maximum Fa=1.0 with no caving, water intrusion or refusal. Assumptions will need to be confirmed with a soils report. k. Roof live load of 0 psf is assumed in this estimate. l. Site conditions verified by site walk and conditions are considered in this estimate. m. Steel mill run assumed for steel efficiency.
n. One footing per array is assumed for conduit installation inside of footing. (1) assumed as part of this proposal.
o. Shade installation is Scope of Work Price is based on code approved conduit and wiring methods.
p. Scope of Work Price assumes that Contractor will not encounter any Rock during trenching and excavating.
q. Scope of Work Price assumes that Contractor will not encounter any ground water during trenching and excavating.
r. Wiring from PV panels to combiners is USE cable and not placed in raceways. s. Grounding as required by NEC.
t. AC and DC wiring to be aluminum where possible.
u. Scope of Work Price is based on the COMEX and The Steel Index (TSI) material pricing as of the Effective Date. Increases to COMEX and The Steel Index (TSI) may result in an increase in the Contract Price.
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v. Scope of Work Price is based on site parking being available to all Contractor and Subcontractor employees.
w. Scope of Work Price is based on straight time Monday to Friday (no holidays) work week, 40 hours per week between 6:00 AM and 6:00 PM. (except for Interconnection Shutdowns)
x. Scope of Work Price and schedule assumes that City will receive all necessary easements within 45 business days after the Effective Date. y. Scope of Work assumes there are no existing encumbrances or easements on the site.
z. Worksite must be clear of all obstructions.
aa. Sufficient laydown and material storage area will be made available on-site thru the duration of the project.
bb. Sufficient area shall be cleared and made available to safely crane the electrical equipment into place. Crane-Pick location shall be coordinated with client at least 1 week prior to crane mobilization.
cc. All existing Point-of-Interconnection gear is fully capable of and rated for the interconnection of the proposed BESS+PV system without the need for modifications.
dd. Price includes decorative
ee. Site is currently missing As-Built Electrical drawings. It is assumed that the BESS system will back-up the meter with loads for the pool. SitelogIQ will complete a more thorough assessment and confirm prior to engineering. ff. Existing soil conditions are suitable for direction boring with no refusals, obstructions, hard digging, caving soils, or water mitigation. gg. Existing soil conditions are suitable for compaction without special handling or drying of material
1.12 Scope of Work Exclusions
The Solar Work excludes the following:
a. Plumbing, Fire Sprinklers, Fire and Life Safety equipment and its components. b. Warranty, repair and/or upgrade of the existing mechanical, plumbing and electrical systems, air distribution and control systems found in disrepair or not compliant to code. Any and all systems and structure defects repairs/replacements as a result of pre-existing condition.
c. Upgrade of the existing site electrical service capacity and transformer. d. Ground continuity, polarization, and ground bond testing. e. Conductor labeling except at termination points
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f. As-Built documentation of existing conditions.
g. Electrical Load Monitoring
h. Repairs of any electrical code violations at existing facility. i. Net Generation Output Metering (NGOM)
j. Any upgrades to existing parking lots, sidewalks, etc. unless otherwise included in scope.
k. Drill hole casing, water mitigation, or Rock drilling. l. Hazardous material abatement and/or removal of any kind. m. Plan Check Fees (to be paid directly by the City).
n. Inspector of Record fees
o. 3 rd Party Testing or Special Inspection Fees including compaction testing. p. Storm Water Pollution Prevention Plan (SWPPP).
q. Americans with Disabilities Act (ADA) improvements including curb cutting, truncated dome installation, repainting, restriping, or installation of new signs. r. Tree Removal
s. Tree Mitigation Costs.
t. Light pole removal
u. String level monitoring.
v. Relocation and modification of underground utilities. w. Premium time (except for utility tie-in).
x. Field painting – lot striping, conduit painting, etc. above and beyond any items altered during construction or otherwise specified in the scope of work. y. Asphalt (fog, coating, and striping)
z. Photometric lighting plan or study.
aa. Traffic control, including permits and fees.
bb. Privacy screen for temporary fencing.
cc. Temporary power for parking lot lighting
dd. Generator or temporary power for building loads during shutdowns. ee. Spare conduits.
ff. Protective bollards
gg. Removal of utility mark out paint
hh. Hot-Dipped Galvanization of strut
ii. Stainless steel hardware
jj. Metallic cable ties
kk. Operation and Maintenance services.
ll. Other Fees (plan check, utility permits, parking, etc.).
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mm. Any additional costs associated with COVID-19 (this includes, but not limited to, safety training, sanitizing equipment, limitation on number of workers in a space, etc.).
nn. Any items not specified in this scope.
Contractor will notify the City of any excluded work or repairs which are necessary to the function of the Work as soon as Contractor becomes aware of such, and before proceeding with related work.
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1.13 Site Plans & Single Line Diagram
McAdam Park PV Layout
Single Line Diagram
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2.0 PROPOSED PROJECT INSTALLATION TIMELINE & COORDINATION This project will require extensive scheduling and coordination to ensure the efficient implementation of the Work shown herein.
The City shall provide safe access to the buildings and provide the necessary security for staff safety during the rigging and equipment handling process. During the retrofit services, areas of the building designated by Contractor may need to be vacated to ensure the safety of the occupants. It will be the City’s responsibility to temporarily relocate the occupants to other locations or buildings and/or, if needed, provide temporary facilities for the duration of the given phase of each project.
In order to minimize the disruption of City’s operation, coordination and scheduling items shall include but are not limited to multiple trips to the job site, multiple equipment riggings, temporary relocation of the tenants, etc. Contractor will work with the City to develop a detailed project schedule. Once the project schedule is confirmed, Contractor will provide the City with a Schedule of Values and a progress payment schedule, which corresponds to the project schedule. The installation of mechanical systems will start upon executing this Agreement and ordering and obtaining necessary equipment, parts and materials needed for installation, as listed in the scope of work. It is anticipated the construction phase of this project would be performed in 2022-2023.
City and its representatives shall coordinate all the project activities with Contractor’s Project Manager only.
3.0 WORK MILESTONES
Estimated Work Milestone Schedule
Milestone Milestone Date
Notice to Proceed TBD
Major Equipment Ordering Notice to Proceed + 2 weeks
Construction Mobilization Notice to Proceed + 30 weeks
Substantial Completion Notice to Proceed + 56 weeks
Final Completion Notice to Proceed + 62 weeks
Contractor shall be given a day-for-day slip in the Work Milestone Schedule for a delay in the Funding Date beyond the date shown above.
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4.0 FIXED PRICE AMOUNT
The fixed price for this Scope of Work is $1,667,749
Contractor shall be entitled to, an increase in the Contract Price where the cost to Contractor for any labor, raw-material, or component (including without limitation, solar panels, tracking equipment, inverters, lighting and mechanical system components or any other equipment or materials necessary to complete the work required by this Work Order) increases after the Execution Date of the Master Agreement. Such increase may be determined by the relative index for such labor, equipment, or material component including but limited to Consumer Price Index, The Steel Index, Commodity Indexes, etc. Contractor shall be entitled to an equitable adjustment in time and money for any costs that it incurs directly or indirectly that arise out of or relate to changes in taxes, tariffs, or similar charges due to such changes including, without limitation, escalation, delay damages, costs to re-procure, costs to change suppliers, costs of manufactured equipment or system components, or other costs of any kind resulting from the changes.
The Fixed Price Amount includes City Controlled Allowance of $100,000. “City Controlled Allowance” is for the use of the Contractor, as approved by the City, to pay for contingency items and costs escalations. The Contractor shall obtain written approval from City prior to using the City Controlled Allowance. If on Final Completion of the Project, funds are remaining in the City Controlled Allowance, such funds shall remain unspent and allocated back to the City.
5.0 PROGRESS PAYMENT SCHEDULE
The City shall pay to Contractor the progress payments set forth below when Contractor has completed the Work associated with such payment. Contractor must submit documentation at the time of invoicing for related progress payments.
Progress Payments Schedule
Payment Milestone % of Total Task Order Price
Notice to Proceed 10%
Equipment Deposit 35%
Construction Mobilization 10%
Progress Payments 30%
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Substantial Completion 10%
Final Completion/Retention 5%
6.0 PERFORMANCE AND PAYMENT BONDS
Upon the written request of the City prior to commencement of work, Contractor shall provide evidence of the following bonds to City:
a. Performance Bond. A bond issued by a corporate surety authorized to issue surety insurance in California, and reasonably acceptable to City, in an amount equal to one- hundred percent (100%) of this Scope of Work Price payable under the Agreement securing the faithful performance of this Scope of Work; and b. Payment Bond. A bond issued by a corporate surety authorized to issue surety insurance in California, and reasonably acceptable to City, in an amount equal to one- hundred percent (100%) of this Scope of Work Price payable under the Agreement securing the payment of all claims for the performance of labor or services on, or the furnishing of materials for, the performance of this Scope of Work.
The Performance and Payment Bonds shall guarantee timely completion of the Work in accordance with this Scope of Work and shall cover the installation period. The warranty period shall extend one (1) year following Final Completion.
The surety, having provided the Performance and Payment Bonds under this Scope of Work , shall assume no liability to Contractor, City or any third parties, should Contractor fail, for any reason, to deliver acceptable warranties beyond the one (1) year warranty period following Final Completion.
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EXHIBIT E
INSURANCE
Contractor Insurance Requirements
1. Required Coverages. Contractor shall carry and maintain with carriers or self-insurance, as a minimum, the following insurance coverage:
i. Workers Compensation Insurance and Employers Liability. In accordance with the laws of the state of where work may be done with limits for employers liability in the minimum amount of one million dollars ($1,000,000) for each occurrence and one million dollars ($1,000,000) for each occurrence of bodily injury on a per employee basis;
ii. Commercial General Liability. One million dollars ($1,000,000) per occurrence/two million dollars ($2,000,000) in the aggregate for bodily injury, personal injury and property damage, products and completed operations:
iii. Commercial Automobile Liability, Any Auto. One million dollars ($1,000,000) per accident including owned, non-owned, and hired automobiles. iv. Excess coverage of four million dollars ($4,000,000) per occurrence and aggregate, or any other equivalent, available insurance coverage of the Contractor.
2. Policy Endorsements. Insurance coverage required to be maintained by Contractor under this Agreement shall:
i. provide a severability of interests or cross liability clause for Commercial General Liability Insurance;
ii. except in the case of worker’s compensation insurance and other statutory insurances where it would be inappropriate, name City and others as may be reasonably required by City, as additional insured’s; and to the extent permissible in accordance with the policy, include a waiver of subrogation by the insurers in favor of City and each of its respective assignees, Affiliates, agents, officers, directors, employees, insurers or policy issuers and a waiver of any right of the insurers to any set-off or counterclaim, whether by endorsement or otherwise, in respect of any type of liability of any of the Persons insured under any such policies.
3. Certificates. Contractor shall throughout the Agreement Term provide certificate(s) and/or memoranda of insurance evidencing the coverage specified in this Attachment E to City upon City’s reasonable request.
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City Insurance Requirements
1. Required Coverage. City shall carry and maintain with carriers or self insurance, as a minimum, the following insurance coverage:
i. Workers Compensation Insurance and Employers Liability. In accordance with the laws of the state of where work may be done with limits for employers liability in the minimum amount of one million dollars ($1,000,000) for each occurrence and one million dollars ($1,000,000) for each occurrence of bodily injury on a per employee basis;
ii. Commercial General Liability. One million dollars ($1,000,000) per occurrence/two million dollars ($2,000,000) in the aggregate for bodily injury, personal injury and property damage, products and completed operations:
iii. Commercial Automobile Liability, Any Auto. One million dollars ($1,000,000) per accident including owned, non-owned, and hired automobiles. iv. Excess coverage of four million dollars ($4,000,000) per occurrence and aggregate, or any other equivalent, available insurance coverage of the Contractor.
2. Policy Endorsements. Insurance coverage required to be maintained by City under this Agreement shall provide a severability of interests or cross liability clause for Commercial General Liability Insurance;
3. Certificates. City shall throughout the Agreement Term provide certificate(s) and/or memoranda of insurance evidencing the coverage specified in this Attachment E to Contractor upon Contractor’s reasonable request.
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EXHIBIT F
CERTIFICATE OF SUBSTANTIAL/FINAL COMPLETION AND ACCEPTANCE
The undersigned, City of __________________________ (“the City”), having its office at ___________________________________, having entered into the Facility Solutions Agreement (“Agreement”) dated ________________________, with SitelogIQ, (“Contractor”), does hereby certify as follows:
1. I am authorized to issue this [Substantial][Final] Completion Certificate on behalf of the City.
2. As of the date hereof, all the requirements for achievement of [Substantial][Final] Completion pursuant to the Agreement have been met.
ACCEPTANCE
Contractor: SitelogIQ
By: ____________________________
Name:
Title:
City:
City of ______________
By:_____________________________
Name:
Title:
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EXHIBIT G
NOTICE TO PROCEED
SitelogIQ, Inc.
1651 Response Rd, Suite 300
Sacramento, CA 95815
Kecia Davison, President, West Energy
Re: Notice to Proceed
Dear Kecia Davison:
This Notice to Proceed is being issued by City of ____________________ (“City”) to SitelogIQ, Inc. (“Contractor”) pursuant to the 4217 Facility Solutions Agreement, entered into on ________________________
This Notice to Proceed authorizes the Work described by Exhibit C of the Agreement.
By signing and dating this Notice to Proceed, the parties hereto agree to these terms and represent and warrant they have the authority to execute this Notice to Proceed on behalf of their respective organizations.
ACKNOWLEDGED & AGREED TO:
City of ____________________ SitelogIQ
Signature: Signature:
Name: ___________________ Name: Kecia Davison
Title: ___________________ Title: President, West Energy Date: __________________________ Date: ________________________ A-7918
COVER PAGE (SOLAR AND BATTERY ENERGY STORAGE SYSTEM [BESS] O&M CONTRACT) Customer Name City of Palmdale
Customer Address 38300 Sierra Highway, Palmdale, CA 93550 Customer County Los Angeles County
Customer Type [within text]
(District, College, City, County,
other customer-specified term)
Owner
Customer Contact Ronda Perez
Customer Title Interim City Manager
Version Date / Executed Date
(when final)
3/31/2022
Number of Sites 1
Aggregate PV System Size (kW) 84.7
Aggregate BESS System Size (kW) 125kW / 500kWh
First Year O&M Fees ($/Year) $3,849
Term of Agreement (Months) 120 Months
Performance Guarantee (%) 90%
First Year True-Up Fee ($/kWh) $0.17
Escalation Rate (%/Year)
Applied to O&M and True-Up Fees
3%
Site Inspection Frequency (Annual,
Biennial) Annual Required for
stated Performance Guarantee
Annual
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A-7918
A-7918
OPERATIONS & MAINTENANCE AGREEMENT
by and between
City of Palmdale
and
SitelogIQ, Inc.
1651 Response Rd., Suite 300
Sacramento, California 95815
A-7918
TABLE OF CONTENTS
1. DEFINITIONS.....................................................................................................................2
2. SERVICES...........................................................................................................................2
2.1. System Services .......................................................................................................2
2.2. Annual Reports and Meeting ...................................................................................2
2.3. Warranty on Repair or Replacement Work .............................................................3
2.4. Insurance..................................................................................................................5
2.5. General Obligations of Owner.................................................................................5
2.6. Permits .....................................................................................................................5
2.7. Telephone & Data Communication .........................................................................6
2.8. Storage .....................................................................................................................6
2.9. Duty to Cooperate....................................................................................................6
3. TERM ..................................................................................................................................6
3.1. Term.........................................................................................................................6
3.2. Termination..............................................................................................................7
4. SERVICE FEES...................................................................................................................9
4.1. Compensation ..........................................................................................................9
4.2. Late Payments..........................................................................................................9
4.3. Disputed Payments...................................................................................................9
5. OPERATOR’S GUARANTEE ...........................................................................................9
6. MISCELLANEOUS ..........................................................................................................11
6.1. No Partnership .......................................................................................................11
6.2. Party Representatives.............................................................................................11
6.3. Notices and Demands. ...........................................................................................11
6.4. Force Majeure Event..............................................................................................12 A-7918
6.5. Dispute Resolution.................................................................................................13
6.6. Indemnification......................................................................................................14
6.7. Consequential Damages.........................................................................................14
6.8. Limit of Liability....................................................................................................14
6.9. Governing Law. .....................................................................................................14
6.10. Tax Matters ............................................................................................................14
6.11. Successors and Assigns..........................................................................................15
6.12. Announcements and Publications..........................................................................15
6.13. No Waiver..............................................................................................................15
6.14. Validity. .................................................................................................................16
6.15. Priority of Documents............................................................................................16
6.16. Time of Essence.....................................................................................................16
6.17. Headings. ...............................................................................................................16
6.18. Binding Effect........................................................................................................16
6.19. Counterparts; Signature Pages. ..............................................................................16
6.20. Complete Agreement. ............................................................................................16
EXHIBITS
Exhibit A Definitions
Exhibit B System Services
Exhibit C Insurance
Exhibit D Sites and System Size
Exhibit E Annual Energy Production Evaluation
Exhibit F Rates for Additional Services
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AGREEMENT NO A-7918
CONTRACT FOR OPERATION AND MAINTENANCE AGREEMENT
BETWEEN THE CITY OF PALMDALE AND SITELOGIQ, INC.
This Operation and Maintenance Agreement (“Agreement”) is entered into as of _____________________, between the City of Palmdale, organized and existing under the laws of the State of California (“Owner”) and SitelogIQ, Inc., a Delaware corporation doing business as SitelogIQ, Inc ("Operator").
RECITALS
WHEREAS, Owner currently owns, or intends to construct, install, and commission photovoltaic solar electric and battery storage system facilities (individually called System, together called “Systems”).
WHEREAS, the Systems were constructed at various client sites (individually called Site, together called Sites).
WHEREAS, the Systems and Sites are as provided in Exhibit D.
WHEREAS, Operator, in its capacity as operator hereunder, has agreed to operate and maintain the Systems under the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
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AGREEMENT
1. DEFINITIONS
Unless otherwise required by the context in which any term appears: (a) capitalized terms used in this Agreement shall have the respective meanings set forth in Exhibit A; (b) the singular shall include the plural and vice versa; (c) the word “including” shall mean “including, without limitation”, (d) references to “Sections” and “Exhibits” shall be to sections and exhibits hereof; (e) the words “herein”, “hereof” and “hereunder” shall refer to this Agreement as a whole and not to any particular section or subsection hereof; and (f) references to this Agreement shall include a reference to all Exhibits hereto, as the same may be amended, modified, supplemented or replaced from time to time.
2. SERVICES
2.1. System Services
(a) Throughout the Term of this Agreement, Operator shall provide System Services as set forth in Exhibit B for the Systems.
(b) Operator shall perform Annual Energy Production Evaluations for solar PV system.
(c) System Services shall be performed in accordance with Industry Standards and Applicable Law for photovoltaic solar projects and battery energy storage system projects in California.
(d) All periodic maintenance and inspection services shall be performed at regular intervals as described in Exhibit B
(e) All maintenance and inspection services shall be performed by qualified technical personnel in accordance with the operation and maintenance manuals.
(f) Operator personnel and agents will check-in at offices during business hours prior to beginning Work.
(g) Repair of damaged/vandalized Systems shall be performed by Operator, as directed by Owner, at the rates specified in Exhibit F. (h) Any other Owner requested services not defined in this Agreement shall be billed at the rates specified in Exhibit F on a time and materials basis. (i) Facilitate third-party battery energy storage system Operation & Maintenance agreement from the third-party, upon BESS procurement.
Costs will vary, per rates specified in Exhibit F.
2.2. Annual Reports and Meeting
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Throughout the Term, Operator shall furnish to Owner the Annual maintenance/inspection report ("Annual Report") covering all Systems for the twelve-month period ending on December 31 of each calendar year. The first reporting period of the Term shall begin upon the Final Completion of the System Installation, or the Date of this Agreement, whichever is later, and extend through December 31. The Annual Report shall be submitted within two (2) months from the period ending. The Annual Report shall include the following:
a. Summary of operations;
b. Weather and energy production data;
c. Calculation of Cumulative Annual Energy Production;
d. Reports of any environmental disturbances (e.g. Fires); e. Performance Guarantee True-Up, if any;
f. Safety/accident reports;
g. Summary of Additional Services, if any;
h. Maintenance and inspection logs; and
i. Proposal of actions required to be taken by Operator, if any.
2.3. Warranty on Repair or Replacement Work
(a) Subject to the limitations set forth in this Section 2.3, commencing on the date system was repaired or replaced, and for a period of one (1) year, Operator warrants that such work will be free from defects in materials and workmanship under normal operating conditions and shall conform to the final System design. If the work has a defect that causes it to fail to conform to any of the foregoing Warranties, Operator will, at its option, either repair or replace the portion of the work that is defective at no cost to the Owner.
(b) This Warranty shall not cover any defects to the extent such defect is caused by any of the following:
(i) Poor workmanship by the original Installer, if Installer was not Operator or Operator’s Subcontractors.
(ii) Alterations or repairs made to the System by anyone except for Operator or Operator’s Subcontractors without Operator's prior written approval;
(iii) Failure of the System to perform caused by legislative, administrative, or executive regulation, order or requisition of the government, local utility or public utilities commission, or any state, provincial or municipal government or official;
(iv) Use of the System by anyone except for Operator or Operator’s Subcontractors beyond the scope contemplated in its operating manuals or technical specifications;
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(v) Damage to the System not caused directly or indirectly by Operator or its Subcontractors under any agreement between Operator and Owner;
(vi) Damage or property loss to the System caused by third parties including, but not limited to, vandalism and theft.
(vii) Manufacture defects or Return merchandise authorization (RMA) of equipment.
(viii) Force Majeure Events; and
(ix) A change in usage of the Site, which may affect building or site permits and related requirements, without the written approval of Operator, or a change in Ownership of building or property and the new Owner has not signed an assumption agreement of the terms and conditions herein.
Corrections, repairs, or replacement covering the equipment, materials, and labor as a result of the defects above shall be billed at the rates specified in Exhibit F, on a time and materials basis
(c) The Operator Warranty assumes that all Manufacturer Warranties have been assigned to the Owner. Operator's obligations under the Operator Warranty do not apply to defects in materials or equipment provided by Manufacturer Warranty. Operator makes no representation or warranty, and Owner shall seek no recourse from Operator, regarding the warranties of the manufacturers, including, without limitation, the power output of the PV modules.
(d) To the extent that Equipment Warranties cover replacement and/or repair of any System equipment during the Term, it shall be Operator's responsibility under this Agreement to use commercially reasonable efforts to submit, process and pursue warranty coverage; provided, however, that, because warranty claims may need to be submitted in the name of Owner, Owner shall provide such full and complete cooperation as Operator may reasonably require in connection with such submission, processing and pursuit of warranty coverage.
(e) Operator agrees to act as agent on behalf of Owner for purposes of Section
2.3(d). If, in the event the equipment manufacturer denies responsibility for warranty service and Operator is instructed by Owner to pursue action against the equipment manufacturer, whether through litigation or otherwise, Owner shall reimburse Operator for any of the costs, expenses, or repairs incurred by Operator in this context, even if such attempt to recover from the equipment manufacturer fails, provided that such failure is not the result of errors or omissions by Operator. Such costs shall be A-7918
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reimbursed by Owner to Operator within thirty (30) days of receipt of invoice.
(f) This Warranty shall expire one (1) year after the Repair has taken place. (g) Except as expressly provided herein or in the Agreement, Operator expressly disclaims any and all warranties of any kind, express, implied or statutory, including without limitation any implied warranties of merchantability and/or fitness for a particular purpose.
2.4. Insurance
Without limiting any of the obligations or liabilities of either of the Parties, each of the Parties shall at all times throughout the Term of this Agreement and any renewal thereof, carry and maintain, or cause to be carried and maintained, at its own expense, such insurances coverage in Exhibit C.
2.5. General Obligations of Owner
Owner shall ensure that Operator and its authorized agents, employees or Subcontractors shall have reasonable access to the Site in order to provide scheduled or unscheduled maintenance activities, maintenance of the grounds, emergency services, or to conduct other System Services, in all cases, to the extent that such activities and/or services are within the scope of this Agreement and are provided in accordance with the terms of this Agreement. Except in the case of an emergency, Operator shall give 48 hours prior written notice to the appropriate client site administrator, whose name and contact information shall be provided to Operator, before any entry onto the Site by Operator's employees, agents or contractors.
2.6. Permits
(a) Subject to Section 2.6(b), Owner shall be responsible for procuring, obtaining, maintaining and complying with all Owner Acquired Permits applicable as of the date hereof. If any new Owner Acquired Permits become required for the operation of the System due to a change in the Applicable Law after the date of this Agreement, Owner shall obtain such permits in a timely manner and at its sole cost and expense, except where such additional Owner Acquired Permits arise as a result of any omission, neglect or default of Operator, in which case Operator shall reimburse Owner for any costs or losses arising as a result of or in connection with procuring, obtaining, maintaining and complying with such Owner Acquired Permits.
(b) To the extent that a Party is required to obtain any Applicable Permits, the other Party agrees to cooperate with and assist that Party in obtaining the same and the Party which is required to obtain such Applicable Permits shall reimburse the other Party for its reasonable costs in providing such assistance. Notwithstanding anything in this Agreement to the contrary, Operator shall be required to comply with Applicable Law as in effect on A-7918
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the date of this Agreement at no additional charge to Owner. Following the date of this Agreement, any costs incurred by Operator in performing its obligations hereunder resulting from changes in Applicable Permit conditions or requirements, or changes in Applicable Law, shall be borne by Owner except to the extent it does not involve an increase in the scope of System Services.
2.7. Telephone & Data Communication
Owner shall directly pay any utility or other third party service provider invoices as become due as may be required for Operator's remote access to telephone and/or data communications service available at the Site to the extent necessary for the performance by Operator of System Services under this Agreement. Owner will be responsible for all monthly service charges related to telephone and data communications services.
2.8. Storage
To the extent Operator has established space on the Site and to the extent that any such use is permitted under Applicable Law, Operator may use such space for storing parts and supplies necessary for the performance of System Services. At Operator's option and upon the written approval of Owner, additional storage sheds may be installed at the Site at Operator's expense.
Operator must seek and obtain building permits and other local permits and approvals required in connection therewith (which shall be designated as Operator Acquired Permits) and Owner shall reasonably cooperate in obtaining such permits and approvals. Operator shall maintain any space utilized in accordance with this Agreement as if it were part of System Services and shall be required (at its own cost), if requested by Owner, to remove any storage sheds installed at the Site at the end of the Term.
2.9. Duty to Cooperate
Owner shall cooperate with Operator in taking all actions reasonably requested by Operator (i) to ensure that parties with whom Owner has agreements or relationships that are essential to System Services are available and able to perform as contemplated in this Agreement. Owner shall be directly responsible for all utility costs (water, communication, electricity) of the System except to the extent that such costs arise as a result of the omission, neglect or default of Operator.
3. TERM
3.1. Term
(a) The term of this Agreement ("Term") includes the period during which System Services are to be provided for the Systems and shall commence the latter of when the first System has achieved Final Completion or the date of this Agreement; and expire upon the Term as defined in the Cover Page.
(b) The Term shall be subject to the provisions of Section 3.2 (Termination).
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(c) Auto-Renewal. Upon expiration of the original Term This Agreement will automatically renew on an annual basis (“Autorenewal Term”),and continue to renew annually until either Party elects to terminate per Section 3.2(d).
(d) Extension. Either Party may request, and Parties shall agree to negotiate an extension in good faith and in a timely fashion prior to the expiration of the Term, though neither Party shall be obligated to enter into an extension and may terminate per Section 3.2.
(e)
3.2. Termination
(a) Owner may terminate this Agreement in the event of any of the following:
(i) Operator becomes Insolvent; or
(ii) Failure by Operator to perform any of its material obligations under this Agreement, which failure is not remedied within thirty (30) calendar days of written notice of such failure from Owner to Operator; provided that if such failure can be remedied, and (1) such failure cannot reasonably be remedied within such thirty (30) calendar day period, and (2) Operator commences cure of such failure within such thirty (30) calendar day period and thereafter diligently seeks to remedy such failure, then Owner shall not be entitled to terminate this Agreement until such time as Operator ceases all reasonable endeavors to cure such failure unless such failure continues for a period of a ninety (90) calendar days from the original written notice from Owner; or
(iii) A Force Majeure Event occurs which prevents Operator from providing a material part of System Services for a continuous period of at least one hundred eighty (180) calendar days and Owner reasonably concludes such prevention is not reasonably likely to be remedied within a further period of one hundred eighty (180) calendar days. Subject to Section 6.5, Owner shall compensate Operator for all System Services completed prior to the termination date.
(b) Operator may terminate this Agreement in the event of any of the following:
(i) Owner fails to pay to Operator any amounts due under this Agreement (other than any amounts which are the subject of a good faith dispute) within fifteen (15) calendar days of written notice of such failure from Operator to Owner, provided that A-7918
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failure to pay shall not be on account of the negligence or willful action or inaction of Operator; or
(ii) Material breach by Owner of any of its obligations under this Agreement, which materially impairs Operator's ability to perform its obligations under this Agreement, and which breach is not remedied within thirty (30) calendar days of written notice of such failure from Operator to Owner; provided that (1) if such failure can be remedied, and (A) such failure cannot reasonably be remedied within such thirty (30) calendar day period, and (B) Owner commences cure of such failure within such thirty (30) calendar day period, and thereafter diligently seeks to remedy such failure, then Operator shall not be entitled to terminate this Agreement until such time as Owner ceases reasonable efforts to cure such failure unless such failure continues for a period of ninety (90) calendar days from the original written notice from Operator; and (2) failure of Owner to perform its obligations is not on account of the negligence or willful action or inaction of Owner; or
(iii) Owner becomes Insolvent.
(c) Parties may terminate this Agreement, either partially or in whole, by mutual written consent. Termination by mutual consent may be initiated by either Party at any time by written means. Upon such termination, Owner shall compensate Operator for all System Services completed prior to the termination date.
(d) End of Term. No later than one hundred eighty (180) calendar days prior to the end of the original Term, or end of the Autorenewal Term, either Party may request to terminate this agreement upon written notice written notice.
(e) A notice of termination given pursuant to the foregoing provisions of this Section 3.2 ("Termination Notice") shall specify in reasonable detail the circumstances giving rise to the Termination Notice. Except to the extent otherwise provided herein, this Agreement shall terminate on the date specified in the Termination Notice, which date shall not be earlier than the date upon which the applicable Party is entitled to effect such termination as provided above.
(f) Termination of this Agreement shall not affect any rights or obligations as between the Parties which may have accrued prior to such termination or which expressly or by implication are intended to survive termination whether resulting from the event giving rise to termination or otherwise, including, without limitation, Sections 6.7 and 6.8.
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4. SERVICE FEES
4.1. Compensation
As compensation for provision of System Services by Operator, Owner shall pay Operator an O&M Fee as provided on the Cover Page, and escalating at the Escalation Rate for each year ("Service Fees"). Service Fees are due within thirty (30) calendar days of Invoice Date. First annual invoice will be submitted to the Owner upon execution of the Agreement. All subsequent invoices will be submitted annually.
4.2. Late Payments
Overdue payment obligations of Owner hereunder shall bear interest from the date due until the date paid at a rate per annum equal to the rate published by the Wall Street Journal as the "prime rate" on the date on which such interest begins to accrue plus two percent (2%).
4.3. Disputed Payments
In the event that Owner disputes any portion of an invoice submitted by Operator, Owner shall pay the undisputed portion thereof when due. All disputed payments shall be resolved in accordance Section 6.5.
5. OPERATOR’S GUARANTEE
(a) Operator shall conduct and provide to Owner an evaluation each calendar year during the effective Term of the Agreement to determine the Cumulative Annual Energy Production from all the Systems combined. (b) The Cumulative Annual Energy Production shall be measured for each complete calendar year, January 1 to December 31 (“Annual Production Period”). No evaluation will be performed for the first partial period (Final Completion for all Systems to the first December 31 of the Term) and the final partial period evaluation will be prorated (Jan 1 of the Term to Term expiration).
(c) The Cumulative Annual Energy Production shall be compared to the Expected Annual Energy Production calculated upon Final completion for all the Systems combined to evaluate the performance of the Systems. (d) Operator hereby guarantees to Owner a minimum energy output for the aggregate of the Systems for each Annual Production Period. The minimum energy output shall be calculate at the Performance Guarantee percentage multiplied by the Expected Annual Energy Production (“Energy Production Guarantee”), subject to the adjustments in Section 5(g), 5(h), 5(i), and 5(j).
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(e) The evaluation shall be conducted in accordance with the procedures provided in Exhibit E.
(f) If the Systems fail to meet the Energy Production Guarantee, then within ninety (90) calendar days after the failure is identified, the Operator shall pay the Owner the difference between the Cumulative Annual Energy Production and the Energy Production Guarantee for such period multiplied by the True-Up Fee ("True-Up Refund"). The True-Up Fee shall escalate annually at the Escalation Rate.
(g) If the Cumulative Annual Energy Production is more than one hundred five percent (105%) of the Expected Annual Energy Production, then the Owner shall give a kWh credit to the Operator for every kWh between the measured Cumulative Annual Energy Production and one hundred five percent (105%) of the Expected Annual Energy Production for such Annual Production Period. Operator shall be entitled to apply this credit to any future Annual Production Period at the Operator’s sole discretion. (h) The Expected Annual Energy Production for the combined Systems shall be reduced accordingly for the period of time any System is not in operation in connection with (a) temporary removal of the System, a movement to an alternate location, or a temporary shutdown of the System or any portion thereof; (b) the occurrence of an event of Force Majeure has temporarily impaired or disabled the operation of any System or any portion thereof; (c) Owner interferes with the System, refuses repair, or recommended services; (d) vandalism or theft, (e) Utility caused outages, or (f) any manufacturer defects that cause outages. Operator shall provide and justify data verifying the loss of generation using the System Model defined in Exhibit E.
(i) Operator's Expected Annual Energy Production shall proportionately terminate and be of no further force or effect if any System, or any portion thereof, is subject to a permanent shutdown or an event of Force Majeure occurs, the effect of which to permanently impair or interfere with the operation of the System, or any portion thereof.
(j) The Parties agree that Owner shall avoid activities that result in overshadowing or shading of the Systems in a manner that would prevent Operator from satisfying its Energy Production Guarantee. In the event the Systems, or any portion thereof, is overshadowed or shaded in a manner that prevents Operator from satisfying its Energy Production Guarantee for any reason beyond the control of Operator, Owner agrees that Operator's Expected Annual Energy Production shall be reduced accordingly. Operator shall provide and justify data verifying the loss of generation using the System Model of the System due to overshadowing or shading.
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6. MISCELLANEOUS
6.1. No Partnership
This Agreement is not intended, and shall not be construed, to create any association, joint venture, agency relationship or partnership between or among the Parties or to impose any such obligation or liability upon any Party. No Party shall have any right, power or authority to enter into any contract or undertaking for, or act as or be an agent or representative of, or otherwise bind, the other Party or Parties.
6.2. Party Representatives
(a) Owner Representative. Owner designates, and Operator agrees to accept, Jimmy Dean. as " Owner Representative" for all matters relating to Owner's performance under this Agreement. The actions taken by Owner Representative regarding such performance shall be Owner the acts of Owner and shall be fully binding on Owner. Owner may, upon written notice to Operator, change the designated Owner Representative. (b) Operator Representative. Operator designates, and Owner agrees to accept, Kecia Davison, as "Operator Representative" for all matters relating to Operator's performance under this Agreement. The actions taken by Operator Representative shall be deemed the acts of Operator.
Operator may, upon written notice to Owner, change the designated Operator Representative.
6.3. Notices and Demands.
Any notice, request, demand or other communication required or permitted under this Agreement, shall be deemed to be properly given by the sender and received by the addressee if made in writing and (a) if personally delivered; (b) three (3) days after deposit in the mail if mailed by certified or registered air mail, post prepaid, with a return receipt requested; or (c) if sent by facsimile with confirmation. Mailed notices and facsimile notices shall be addressed as follows to:
Owner:
Name: City of Palmdale
Attention: Ronda Perez
Address: 38300 Sierra Highway, Palmdale, CA 93550
Phone:
Email:
Operator:
SitelogIQ Inc.
Attention: Solar Operations, West Energy
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1651 Response Rd., Suite 300
Sacramento, CA 95815
Phone: (916) 914-1929
Email: [email protected]
6.4. Force Majeure Event
(a) Neither Party shall be considered to be in default of its obligations under this Agreement when and to the extent that performance of such obligations is prevented by any Force Majeure Event which arises after the date of this Agreement.
(b) If either Party shall rely on the occurrence of a Force Majeure Event as a basis for being excused from the performance of its obligations under this Agreement, then the Party relying on the event or condition shall (i) provide prompt notice to the other Party of the occurrence of the Force Majeure Event, giving an estimation of its expected duration and the probable impact on the performance of its obligations hereunder; (ii) exercise all commercially reasonable efforts to continue to perform its obligations hereunder; (iii) expeditiously take any action within its reasonable control to correct or cure the Force Majeure Event excusing performance; (iv) exercise all commercially reasonable efforts to mitigate or limit damages to the other Party to the extent such action will not adversely affect its own interests; and (v) provide periodic notices to the other Party with respect to its actions and plans for actions in accordance with (ii), (iii) and (iv) above and promptly notify to the other Party of the cessation of the event or condition giving rise to it being excused from performance.
(c) In the event that Operator is prevented from providing all or part of System Services as a result of a Force Majeure Event for a period of thirty (30) consecutive days and it is reasonably expected that Operator will not be able to resume full performance of System Services within an additional thirty (30) days, Owner shall be entitled to require Operator to reduce the scope of System Services commencing as of the date of such notice by Owner until such time as Operator can demonstrate, to the reasonable satisfaction of Owner, that Operator is able to resume full performance of System Services. As from the date on which Owner reduces System Services until the date on which Operator resumes full performance of System Services, the obligation of Owner to pay the fee pursuant to Section 4 shall be reduced proportionately to take account of the level of System Services that Operator is actually performing. (d) Operator shall document any Force Majeure Event and its consequences so that costs which are directly attributable to such Force Majeure Event may be claimed by Owner from any insurance carried by Owner.
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6.5. Dispute Resolution
(a) Good faith negotiations. In the event that any question, dispute, difference or claim arises out of or in connection with this Agreement, including any question regarding its existence, validity, performance or termination (a “Dispute”), which either Party has notified to the other, senior management personnel from both Operator and Owner shall meet and diligently attempt in good faith to resolve the Dispute for a period of thirty (30) days following one Party’s written request to the other Party for such a meeting. If, however, either Party refuses or fails to so meet, or the Dispute is not resolved by negotiation, the provisions of Subsections (b), (c) and (d) of this Section shall apply to the extent applicable to the Dispute.
(b) Technical Dispute. Technical Disputes shall be resolved by an independent expert. For the purposes of this Agreement, a “Technical Dispute” shall mean a Dispute regarding whether the System conforms to the Industry Standards related to operation and maintenance. All Technical Disputes shall be resolved on an accelerated basis by a nationally recognized professional expert mutually agreed in writing by Operator and Owner. Parties will share equally in the cost of the independent expert engaged to resolve Technical Disputes. (c) Non-Binding Mediation. If the Dispute remains unresolved, a Party may require that a non-binding mediation take place with a mediator mutually chosen by Owner and Operator. If Owner and Operator are unable to agree on a mediator, then either may request that the American Arbitration Association (the “AAA”) to appoint a mediator. The mediator’s fee and expenses shall be paid one-half by Owner, and one-half by Operator. In any such mediation, representatives of the Parties with authority to resolve the dispute shall meet for at least three hours with mediator. The obligation to mediate shall not be binding upon any Party with respect to (i) requests for preliminary injunctions, temporary restraining orders, specific performance, or other procedures in a court of competent jurisdiction to obtain interim relief deemed necessary by such court to preserve the status quo or prevent irreparable injury pending resolution by arbitration of the actual Dispute; (ii) actions to collect payments not subject to bona fide Dispute; or (iii) claims involving third parties who have not agreed to participate in the mediation of the Dispute. The provisions of this Section 6.5 shall survive any termination of this Agreement.
(d) Attorneys’ Fees. The prevailing Party in any action brought to enforce the terms of this Agreement or arising out of this Agreement may recover its reasonable costs and attorneys’ fees expended in connection with such an action from the other Party.
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6.6. Indemnification.
The Parties hereto agree to defend, indemnify and hold one another harmless from and against any and all liability, loss, expense, attorneys’ fees, or claims for injury and/or damages arising from or in any way connected to the performance of this Agreement, but only in proportion to and to the extent such liability, loss, expense, attorneys’ fees, or claims for injury or damages are caused by or result from the negligent or intentional acts or omissions of the indemnifying party, its officers, agents or employees.
6.7. Consequential Damages.
Notwithstanding any other provision of this Agreement, and to the fullest extent permitted by law, neither the Owner nor Operator, their respective officers, directors, partners, employees, contractors or subconsultants shall be liable to the other or shall make any claim for any incidental, indirect or consequential damages arising out of or connected in any way to the project or to this Agreement. This mutual waiver of consequential damages shall include, but is not limited to, loss of use, loss of profit, loss of business, loss of income, loss of reputation or any other consequential damages that either party may have incurred from any cause of action including negligence, strict liability, breach of contract and breach of strict or implied Warranty.
6.8. Limit of Liability.
To the maximum extent permitted by law, Owner agrees to limit Operator’s liability for any and all claims, losses, costs, damages of any nature whatsoever or claims expenses from any cause or causes, including attorneys’ fees and costs and expert-witness fees and costs, so that the total aggregate liability of Operator to the Owner shall not exceed the equivalent to one (1) year Service Fee as calculated for the first twelve (12) months of the Agreement. It is intended that this limitation apply to any and all liability or cause of action however alleged or arising, unless otherwise prohibited by law.
6.9. Governing Law.
The formation, interpretation and performance of this Agreement shall be governed by and construed in accordance with the laws of the State of California. In the event of any Dispute that is not resolved pursuant to Section 6.5, the Parties hereto agree to submit to the jurisdiction of any court of competent jurisdiction within Los Angeles County County, California and shall comply with all requirements necessary to give such court jurisdiction.
6.10. Tax Matters
Notwithstanding anything to the contrary set forth herein or in any other agreement to which the parties hereto are parties or by which they are bound, the obligations of confidentiality contained herein and therein, as they relate to the transactions described in and contemplated by such agreements, shall not apply to the U.S. Federal tax structure or U.S. Federal tax treatment of the System, and each of the parties hereto (and any employee, representative or agent of any party hereto) may disclose to any and all persons without limitation of any kind, the U.S. Federal tax structure and U.S. Federal tax treatment of such transactions. The preceding sentence is intended A-7918
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to cause the System or the interests in them pursuant to the agreements between the Parties not to be treated as having been offered under conditions of confidentiality for purposes of section
1.6011-4(b)(3) (or any successor provision) of the Treasury Regulations promulgated under Section 6011 of the Internal Revenue Code of 1986, as amended, and shall be construed in a manner consistent with such purpose. In addition, each of the Parties acknowledges that it has no proprietary or exclusive rights to the tax structure of the transactions described in and contemplated by the agreements between the Parties or any tax matter or tax idea related to such transactions.
6.11. Successors and Assigns
(a) Except as set forth in this Agreement, no Party shall be entitled to assign this Agreement or any of its rights or obligations under this Agreement, nor shall it enter into any transaction as a result of which it may transfer, assign, charge or dispose by any title of any of those rights and obligations, without the prior written consent of the other Party, which may be withheld in its sole and absolute discretion; provided that nothing herein shall prohibit Owner's Membership Interests from being sold to an Affiliate of Owner, or an entity which has, in whole or in part, common Ownership, directly or indirectly, with the Ownership of Owner. (b) Notwithstanding the foregoing, (i) Owner shall be entitled to assign its right, title and interest in and to this Agreement (and, in particular, any rights arising in relation to any insurance policy and any other right to collect any amount from Operator) to any lenders by way of security for the performance of obligations to such lenders without the consent of Operator; and (ii) Operator shall be entitled to assign its right, obligation, title and interest in and to this Agreement to any of its Affiliates or in connection with a merger or acquisition of Operator. Parties shall provide a written notice at least 30 days prior to assigning the rights, title, and interest in and to this Agreement.
6.12. Announcements and Publications.
Operator shall coordinate with Owner with respect to, and provide advance copies to Owner for review of, the text of any proposed announcements or publications that include any non-public information concerning the Work prior to the dissemination thereof to the public or to any Person other than Subcontractors or advisors of Operator, in each case, who agree to keep such information confidential. If Owner delivers written notice to Operator rejecting any such proposed announcement or publication within two (2) Business Days after receiving such advance copies, the Operator shall not make such public announcement or publication; provided, however, that Operator may disseminate or release such information in response to requirements of Governmental Authority.
6.13. No Waiver
No provision of this Agreement shall be considered waived by either Party except when such waiver is made in writing. The failure of either Party to insist, on one or more occasions, upon A-7918
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strict performance of any of the provisions of this Agreement or to take advantage of its rights hereunder or the delay or failure in exercising totally or partially any right or remedy under this Agreement, shall not be construed as a waiver of any such provisions or the relinquishment of any such rights or any other rights for the future, but the same shall continue and remain in full force and effect.
6.14. Validity.
The provisions contained in each section, subsection and clause of this Agreement shall be enforceable independently of each of the others and their validity shall not be affected if any of the others are invalid. If any of those provisions is void but would be valid if some part of the provision were deleted, the provision in question shall apply with such modification as may be necessary to make it valid. The Parties shall, if necessary, negotiate in good faith and make any necessary amendments to ensure the enforceable terms of this Agreement reflect the true intent of the Parties as of the date of execution of this Agreement.
6.15. Priority of Documents.
In the event of conflicting provisions in the Agreement, the provisions shall govern in the following priority: first, duly executed amendments to this Agreement (to the extent not superseded by a subsequent amendment), second, this Agreement, and third, Exhibits.
6.16. Time of Essence.
Time is expressly agreed to be of the essence of this Agreement and each, every and all of the terms, conditions and provisions herein.
6.17. Headings.
The headings in this Agreement are for convenience of reference only and the words contained therein shall in no way be held to explain, modify, amplify or aid in the interpretation, construction or meaning of the provisions of this Agreement.
6.18. Binding Effect.
This Agreement shall be binding on the Parties hereto and on their respective permitted successors, heirs and assigns.
6.19. Counterparts; Signature Pages.
This Agreement may be executed in counterparts which, taken together, shall constitute a single instrument. Facsimile and other electronically transmitted signature pages shall be effective to bind a Party to this Agreement.
6.20. Complete Agreement.
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and its terms govern, all prior proposals, agreements, or other communications between the Parties, oral or written, regarding such subject matter. No verbal, or written agreement nor conversation with any officer or employee of either Party nor any or all prior proposals shall affect or modify any of the terms and conditions of this Agreement. This Agreement shall not be modified except by written amendment signed on behalf of the Owner and Operator by their duly authorized representatives.
Any purported oral amendment to the Agreement shall have no effect. (b) Each Party acknowledges that it has not relied on any representation, warranty, collateral contract or other assurance made by or on behalf of any other party at any time before the signature of this Agreement. Each Party waives all rights and remedies which, but for this clause (ii), might otherwise be available to it in respect of any such representation, warranty, collateral contract or other assurance.
[Signature page follows]
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IN WITNESS WHEREOF, the Parties have executed this Operation and Maintenance Agreement as of the date first above written.
Owner: Operator:
City of Palmdale
Name: Ronda Perez
Title: Interim City Manager
SitelogIQ, Inc
Name: John Gajan
Title: Senior Vice President – West Energy
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EXHIBIT A
TO
OPERATION AND MAINTENANCE AGREEMENT
DEFINED TERMS
As used in the attached Agreement, the following terms shall have the meanings set forth below:
Additional Services means any other services not defined in this Agreement which shall be billed at the rates specified in Exhibit F on a time and materials basis.
Affiliate of a specified Person means any Person that directly or indirectly through one or more intermediaries controls, is controlled by, or is under common control with, such specified Person.
As used in this definition of Affiliate, the term "control" of a specified Person including, with correlative meanings, the terms, "controlled by" and "under common control with," means (a) the Ownership, directly or indirectly, of 50% or more of the equity interest in a Person or (b) the power to direct or cause the direction of the management and policies of a Person, whether through Ownership of voting securities, by contract or otherwise.
Agreement means this Operation and Maintenance Agreement as it may be amended and/or restated from time to time.
Annual Energy Production Evaluation is an analysis which measures and compares the Cumulative Annual Energy Production with the Energy Production Guarantee based on Exhibit E.
Annual Production Period is the period between January 1 and December 31.
Annual Reports has the meaning given in Section 2.2.
Applicable Law shall mean, with respect to any Governmental Authority, any constitutional provision, law, statute, rule, regulation, ordinance, treaty, order, decree, judgment, decision, certificate, injunction, registration, license, permit, authorization, guideline, governmental approval, consent or requirement of such Governmental Authority, as construed from time to time by any Governmental Authority.
Applicable Permits shall mean, collectively, Operator Acquired Permits and the Owner Acquired Permits.
Business Day means a day (other than a Saturday or Sunday) on which banks are generally open in California for normal business.
Cumulative Annual Energy Production means the actual AC electrical output in kilowatt-hours (kWh) for the Annual Production Period as measured and recorded by all the Systems revenue meters and adjusted for meter calibration error, if required.
Energy Production Guarantee is the guaranteed energy production output as defined in Section 5(d).
Escalation Rate is the annual percentage rate increase applied to the O&M and True-Up Fees.
Provided on the Cover Page.
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Expected Annual Energy Production means the expected AC electrical output in kilowatt-hours (kWh) for the Annual Production Period as calculated by the System Model that represents the final design of the Systems and adjusted for Annual weather data and degradation.
Force Majeure Event shall mean, when used in connection with the performance of a Party's obligations under this Agreement, any act or event (to the extent not caused by such Party or its agents or employees) which is unforeseeable, or being foreseeable, unavoidable and outside the control of the Party which invokes it, and which renders said Party unable to comply totally or partially with its obligations under this Agreement. In particular, any of the following shall be considered a Force Majeure Event:
(a) war (whether or not war is declared), hostilities, revolution, rebellion, insurrection against any Governmental Authority, riot, terrorism, acts of a public enemy or other civil disturbance;
(b) acts of God, including but not limited to, storms, floods, lightning, earthquakes, hailstorms, ice storms, tornados, typhoons, hurricanes, landslides, volcanic eruptions, fires, winds in excess of ninety (90) miles per hour, and objects striking the earth from space (such as meteorites);
(c) acts of sabotage or destruction by a third party (other than any Operator retained by or on behalf of the Party) of facilities and equipment relating to the performance by the affected Party of its obligations under this Agreement;
(d) regional or national strikes, walkouts, lockouts or similar industrial or labor actions or disputes; and
(e) acts of any Governmental Authority that materially restrict or limit a Party's performance under this Agreement, including Operator's access to the Site or its activities at the Site.
(f) plague, epidemic, pandemic, outbreaks of infectious disease or any other public health crisis, including quarantine or other restrictions. (g) explosion, fire, destruction of machines, equipment, factories and of any kind of installation, prolonged break-down of transport, telecommunication or electric current Governmental Authority shall mean any national, autonomic, state, regional, province, town, city, or municipal government, whether domestic or foreign, or other administrative, regulatory or judicial body of any of the foregoing.
Industry Standards shall mean those standards of care and diligence normally practiced by small- scale solar engineering, construction and installation firms in performing services of a similar nature in jurisdictions in which System Services will be performed and in accordance with good engineering design practices, Applicable Laws, Applicable Permits, and other standards established for such Work. Industry Standards are not intended to be limited to optimum practice or methods to the exclusion of all others, but rather to be a spectrum of reasonable and prudent A-7918
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practices and methods that must take the conditions specific to any given facility into consideration.
Insolvent means (a) a Party shall file a voluntary petition in bankruptcy or shall be adjudicated as bankrupt or insolvent, or shall file any petition or answer or consent seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief for itself under the present or future applicable federal, state or other statute or law relative to bankruptcy, insolvency or other relief for debtors, or shall seek or consent to or acquiesce in the appointment of any trustee, receiver, conservator or liquidator of such party or of all or any Final part of its properties (the term "acquiesce", as used in this definition, includes the failure to file a petition or motion to vacate or discharge any order, judgment or decree within fifteen (15) days after entry of such order, judgment or decree); (b) a court of competent jurisdiction shall enter an order, judgment or decree approving a petition filed against a Party seeking a reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under the present or any future Federal bankruptcy act, or any other present or future applicable Federal, state or other statute or law relating to bankruptcy, insolvency or other relief for debtors, and such party shall acquiesce and such decree shall remain unvacated and unstayed for an aggregate of sixty (60) days (whether or not consecutive) from the date of entry thereof, or a trustee, receiver, conservator or liquidator of such party shall be appointed with the consent or acquiescence of such party and such appointment shall remain unvacated and unstayed for an aggregate of sixty (60) days, whether or not consecutive; (c) a Party shall admit in writing its inability to pay its debts as they mature; (d) a Party shall give notice to any Governmental Authority of insolvency or pending insolvency, or suspension or pending suspension of operations; or (e) a Party shall make an assignment for the benefit of creditors or take any other similar action for the protection or benefit of creditors.
Installer shall mean the contractor responsible for the procurement, installation, startup, and testing of the System under separate contract with the Owner.
Manufacturer Warranty shall mean all warranties provided by the equipment manufacturers and assigned to Owner by the Installer.
O&M Fees shall mean the annual base fee for Operator provided services.
O&M Manual shall mean the set of System operational and maintenance documents provided by the Installer to the Owner and by the Owner to the Operator for the purpose of instruction in the operation and maintenance needs of the System and its components.
Operator has the meaning given in the preamble to this Agreement.
Operator Representative shall mean the representative of Operator appointed pursuant to Section 6.2(b).
Owner has the meaning given in the preamble of this Agreement.
Owner Representative shall mean the representative of Operator appointed pursuant to Section
6.2(a).
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Parties means each of Operator and Owner.
Party means either Operator or Owner.
Performance Guarantee shall mean the percentage applied to the Expected Annual Production to determine the Energy production Guarantee. The Value is provided on the Cover Page.
Permits shall mean, collectively, Operator Acquired Permits and the Owner Acquired Permits.
Person means any natural person, corporation, general partnership, limited partnership, limited liability company, proprietorship, other business organization, trust, union, association, or Governmental Authority.
Site has the meaning given in the Recitals of this Agreement.
Subcontractor means any person to whom Operator subcontracts any of its obligations under this Agreement pursuant to a Subcontract, including the Suppliers and any person to whom such obligations are further subcontracted of any tier.
Final Completion shall have the meaning defined as the date that eh PV system was installed and fully operational.
System has the meaning set forth in the Recitals.
System Services means, collectively, the services set forth in Exhibit B.
Technical Dispute has the meaning given in Section 6.6(b).
Term has the value given on the Cover Page and meaning given in Section 3.1(a).
Termination Notice has the meaning given in Section 3.2(c).
True-Up Refund has the meaning given in Section 5(f).
True-Up Fee has the value given in the Cover Page and defined as the approximate value of the electricity being offset by the System.
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EXHIBIT B
TO
OPERATION AND MAINTENANCE AGREEMENT
INSPECTION SERVICES
Annual Inspection Services
Complete inspection, system maintenance, and recommissioning services Annually per the agreement Term as detailed below. Report inspection finding, required repairs, and repair recommendations, including estimated costs for each maintenance visit. As part of our system maintenance, the following services will be completed and reported to the Owner during the report period.
a) Visual Inspection
a. Visually inspect structures, arrays, and enclosures for excessive wear, damage, defects, rust/corrosion, etc.
b. Verify new and/or existing shade concerns for the photovoltaic array. c. Verify module cleanliness and/or soiling issues; perform washing if requested by the Owner
d. Verify that all signage and placards are firmly attached and legible. e. Verify condition of all wall & pad mounted switchgear, meters and inverters for corrosion and security of attachment to wall/structure/pad, etc. Note any new access issues. f. Verify condition of ac and dc disconnect(s).
g. Confirm that the System is online and that the output is at the expected level. h. Confirm that the monitoring system is in service and functioning properly. b) Photo Documentation
a. Take digital photos of all major system components
b. Submit digital images along with checklist and other documentation following visit. c) Array – Structure & Modules
a. Complete inspection of array.
b. Inspect and tighten structure ground bonding straps/fasteners. c. Verify secure module attachment by random torque testing or visual test. d. Verify condition of racking hardware connections, splices, etc. e. Verify condition of inter-module array wiring for aging and corrosion. f. Inspect visible random sampling of wiring connections. g. Inspect visible conduit system.
d) Electrical Connection – Inverters & Combiner Box
a. Verify condition of inverters.
b. Note condition of all circuit boards and electrical components. c. Check Voc & Isc of all strings (if required).
d. Verify that all manufacturer updates and service bulletins have been performed.
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e. Coordinate inverter manufacturer service, if necessary. f. Perform all electrical connection torque tests.
g. Inspect and clean heatsink, if applicable.
h. Inspect and clean inverter exhaust fan a vents.
i. Inspect and tighten connectors and lugs (inverter, transformer, disconnects). j. Oil and lubricate disconnects.
k. Check all fuses for cleared fuse and replace any cleared fuses. l. Verify condition of wire transition junction boxes for weatherproofing, corrosion, and security of internal wiring connections.
m. Verify condition of all DC and AC conduits and connections. n. Verify interior and exterior condition of DC combiner box(es). e) Data Acquisition System (DAS)
a. Clean all instrumentation and sensors and lubricate moving parts. b. Inspect and tighten connections.
c. Check input signals.
d. Confirm that pyranometer/sensor is aligned with the plane of the PV array. e. Log kWh readings from Inverters to meters, and compare data in a 24-hour increment to monitoring system to verify proper calibration of meters and monitoring system. f. Check calibration of the weather station instruments, as necessary.
Inspection Services Not Included
a. Weed abatement around array and immediate vicinity.
b. Repair of fencing.
c. Repair, replacement, or cleaning due to vandalism, theft, or accidental damage. d. Repair or replacement of light bulbs or lighting fixtures. e. Repairs not explicitly defined in this Exhibit B.
f. Any services not included in this Agreement.
g. Repairs not stated in the Agreement (Installer Warranty) are considered Additional Services and shall be billed on a time and materials basis per the rates in Exhibit F. h. Panel washing (Operator will advise Owner on panel washing frequency as needed maintain performance – Panel washing costs will be quoted as needed) A-7918
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EXHIBIT C
TO
OPERATION AND MAINTENANCE AGREEMENT
INSURANCE
Operator Insurance Requirements
1. Required Coverages. Operator shall carry and maintain with carriers or self-insurance, as a minimum, the following insurance coverages:
i. Workers Compensation Insurance and Employers Liability. In accordance with the laws of the state of where work may be done with limits for employers liability in the minimum amount of one million dollars ($1,000,000) for each occurrence and one million dollars ($1,000,000) for each occurrence of disease on a per employee basis;
ii. Commercial General Liability. One million dollars ($1,000,000) per occurrence/two million dollars ($2,000,000) in the aggregate for bodily injury, personal injury and property damage, products and completed operations:
iii. Commercial Automobile Liability, Any Auto. One million dollars ($1,000,000) per accident including owned, non-owned, and hired automobiles. iv. Excess coverage of four million dollars ($4,000,000) per occurrence and aggregate, or any other equivalent, available insurance coverage of the Operator.
2. Policy Endorsements. Insurance coverages required to be maintained by Operator under this Agreement shall:
i. provide a severability of interests or cross liability clause for Commercial General Liability Insurance;
ii. except in the case of worker’s compensation insurance and other statutory insurances where it would be inappropriate, name Owner and others as may be reasonably required by Owner, as additional insured’s; and to the extent permissible in accordance with the policy, include a waiver of subrogation by the insurers in favor of Owner and each of its respective assignees, Affiliates, agents, officers, directors, employees, insurers or policy issuers and a waiver of any right of the insurers to any set-off or counterclaim, whether by endorsement or otherwise, in respect of any type of liability of any of the Persons insured under any such policies.
3. Certificates. Operator shall throughout the Agreement Term provide certificate(s) and/or memoranda of insurance evidencing the coverage’s specified in this Attachment C to Owner upon Owner’s reasonable request.
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Owner Insurance Requirements
1. Required Coverages. Owner shall carry and maintain with carriers or self insurance, as a minimum, the following insurance coverages:
i. Workers Compensation Insurance and Employers Liability. In accordance with the laws of the state of where work may be done with limits for employers liability in the minimum amount of one million dollars ($1,000,000) for each occurrence and one million dollars ($1,000,000) for each occurrence of disease on a per employee basis;
ii. Commercial General Liability. One million dollars ($1,000,000) per occurrence/two million dollars ($2,000,000) in the aggregate for bodily injury, personal injury and property damage, products and completed operations:
iii. Commercial Automobile Liability, Any Auto. One million dollars ($1,000,000) per accident including owned, non-owned, and hired automobiles. iv. Property Risk Insurance. Amount equal to the replacement value of the Systems for loss or damage to the System by fire and lightning, vandalism, theft, malicious mischief, and extended coverage endorsement for all risks of physical loss. v. Excess coverage of four million ($4,000,000) per occurrence and aggregate, or any other equivalent, available insurance coverage of the Operator.
2. Policy Endorsements. Insurance coverages required to be maintained by Owner under this Agreement shall provide a severability of interests or cross liability clause for Commercial General Liability Insurance;
3. Certificates. Owner shall throughout the Agreement Term provide certificate(s) and/or memoranda of insurance evidencing the coverage’s specified in this Attachment C to Operator upon Operator’s reasonable request.
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EXHIBIT D
TO
OPERATION AND MAINTENANCE AGREEMENT
McAdam Park - 38115 30th St. E, Palmdale, CA 93550
PV System (84.7 kW-DC-STC) and BES System (125kW / 500kWh)
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EXHIBIT E
TO
OPERATION AND MAINTENANCE AGREEMENT
Annual Energy Production Evaluation
Cumulative Annual Energy Production Measurement
The Cumulative Annual Energy Production is the actual AC electrical output in kilowatt-hours (kWh) for the Annual Production Period as measured and recorded by all of the Systems revenue meter(s) and adjusted for meter calibration error, if required.
Expected Annual Energy Production Calculation
At the completion of each Annual Production Period, the Operator shall update the software model of the Systems to calculate the Expected Annual Energy Production of the Systems for that period for comparison with the Cumulative Annual Energy Production of the same period. The model shall use the actual meteorological data and/or reference cell data from the performance monitoring system at the Site.
The input values used in the System Model shall include the following parameters based on the final installed System:
Albedo
Module orientation
Shading
Equipment models and configuration
Module thermal parameters
Ohmic losses
Module quality and mismatch losses
Soiling losses, adjusted for calendar month and washing frequency IAM losses
Hidden parameters and preferences within the model shall remain at default values unless noted and justified. All input parameter values and assumptions shall be provided with the model for review, and shall remain consistent from year to year.
The following factors shall be adjusted in the System Model each year of operation:
Actual weather data for the Annual Production Period
Manufacturer Module degradation factors (Manufacturer Module Power Output Warranty) Adjustments per Section 5(g), 5(h), 5(i), and 5(j)
The final model calculation shall detail the Expected Annual Energy Production on an hourly basis (8760 hours per year) in addition to a total output value in kilowatt-hours (kWh).
Annual Energy Production Evaluation
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The measured Cumulative Annual Energy Production value for the System shall be compared with the calculated Expected Annual Energy Production value and evaluated as described in Section 5, Operator’s Guarantee, of this Agreement.
A. Modeled Annual Energy Production Calculation
The temperature-derate model used by Operator to determine the modeled level of production a system. The system losses, DC system size, CEC inverter efficiency, and the panel temperature coefficient is the accumulation of losses, degradation rates, and efficiencies which are evaluated on an annual basis. These losses are initially calculated upon project commissioning and will only be re-calculated if components fail, degrade, or are changed. Cell temperature and POA irradiance are real-time calculations based on measurements from a reference cell.
Our system model is a combination of system specifications, estimated soiling, shade expectations, degradation expectations. This model is calculated by using the single line as-built plans and a production summary report from HelioScope and are re-evaluated for accuracy on an Annual basis.
The Modeled Energy equation is:
? ? ? ???? ? ? ??? ? (? ? ? ? ) = ? × (1 − ? ) × ?
1000 × ? × (1 + ? × (? − 25))
Where:
T = Cell Temperature
S = System Model Loss
I = POA Irradiance
P = DC System Size
σ = CEC Inverter Efficiency
γ = Temperature Coefficient of the Panel
This modeled production will be compared to actual measured production to calculate operational performance of the system. Unplanned system outages and soiling above expectations will be evaluated and included in system losses.
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EXHIBIT F
TO
OPERATION AND MAINTENANCE AGREEMENT
RATES FOR ADDITIONAL SERVICES
2022 RATE SCHEDULE
Maintenance Services
Lead Technician $150
Electrician $150
Laborer $85
Professional and Technical Services
Project Manager/Engineer $180
Project Assistant $85
Supplemental Services
Module Cleaning As Quoted
Additional BESS Services As Quoted
Other Costs
1. Cost per truck roll for services above and beyond this agreement to be invoiced at time and materials (T&M) rate listed above and dispatched per Owner’s request.
2. Daily/Saturday Overtime will be billed at 1.5 times the hourly rates. Sunday/Holiday Overtime will be billed at 2 times the rates.
3. Direct Expenses and Module Cleaning (non-equipment) will be billed at cost plus 15%.
4. Mileage will be billed at the published IRS mileage rates in effect.
5. Travel time to and from Owner sites will be billed at hourly rates shown above.
6. Federal published per diem rates (GSA) will apply if applicable.
7. Subcontractors will be billed at invoice price plus 15%.
8. Rates will escalate at Escalation Rate.
PUBLISH: April 20, 2022
NOTICE OF PUBLIC HEARING
ADOPT A RESOLUTION TO APPROVE A FACILITY SOLUTIONS MASTER
AGREEMENT AND AN OPERATIONS & MAINTENANCE AGREEMENT WITH SITELOGIQ, INC. TO INSTALL SOLAR AND BATTERY STORAGE AT MCADAM PARK.
The City Council of the City of Palmdale, California, shall hold a public hearing on May 4, 2022, for the purpose of taking public comment and adopting a Resolution authorizing the Interim City Manager and City Attorney to negotiate and execute a Facility Solutions Master Agreement and an Operations and Maintenance Agreement with SitelogIQ, Inc, for the acquisition and installation of solar and battery storage at McAdam Park in accordance with Section 4217.12 (a)(1). The City Council may adopt that the Facility Solutions Master Agreement and an Operations and Maintenance Agreement would be in the City’s best interest if “the anticipated cost to the public agency for thermal or electrical energy or conservation services provided by the energy conservation facility under the contract will be less than the anticipated marginal cost to the public agency of thermal, electrical, or other energy that would have been consumed by the public agency in the absence of those purchases.” The cost to the City to implement the solar and battery installation to McAdam Park per this contract will incur cumulative savings allowing for the anticipated marginal cost to the City to be net positive over the life of the project.
Dated: April 20, 2022
Chuck Heffernan, P.E.
Director of Public Works
City Council Staff Report
DATE: MAY 4, 2022
TO: HONORABLE MAYOR AND CITY COUNCIL
FROM: PUBLIC WORKS
ENGINEERING DIVISION
DISTRICT: 4
SUBJECT: PUBLIC HEARING AND ADOPT RESOLUTION NO. CC 20 22-036,
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
PALMDALE CONFIRMING THE BALLOT RESULTS TO
DETERMINE THAT NO MAJORITY PROTEST EXISTS IN THE
PROCEEDINGS, AND ORDERING THE ANNEXATION OF
CERTAIN TERRITORY INTO THE CITY OF PALMDALE
STREETLIGHT MAINTENANCE ASSESSMENT DISTRICT NO. 1,
AS ANNEXATION 2022-203
ISSUE
Public Hearing and Adopt Resolution No. CC 2022-036, a Resolution of the City Council of the City of Palmdale confirming the ballot results to determine that no majority protest exists in the proceedings, and ordering the annexation of certain territory into the City of Palmdale Streetlight Maintenance Assessment District No. 1, as Annexation 2022-203.
RECOMMENDATION
Staff recommends that the City Council accept public testimony and adopt Resolution No. CC 2022-036 annexing certain territory to City of Palmdale Streetlight Maintenance Assessment District No. 1, as Annexation 2022-203 (the “Annexation”).
This action will allow the levy and collection of assessments to begin fiscal year 2022/2023.
BACKGROUND
The developer, Pilot Travel Centers LLC has requested the annexation of certain territory to the District and it is also a condition of approval for the project. Parcel 2 on Parcel Map No. 83189 is a proposed travel center building with associated parking facilities located on the northwest corner of Ft. Tejon Road (Highway 138) and Pearblossom Highway.
According to the “Landscaping and Lighting Act of 1972”, Part 2 of Division 15 of the California Streets and Highways Code, the City may establish a streetlight maintenance assessment district or annex territory into an existing district to provide Report to Mayor and City Council
Re: Palmdale SLAD No. 1, Annexation No. 2022-203
May 4, 2022
for the installation, continued maintenance, and servicing of the streetlight improvements. Placement of the streetlight improvements into a district will provide for the continued maintenance of these improvements after the developer installs them and the City accepts them.
On May 4, 2022, the City Council acted to initiate proceedings and declare it’s intention to annex certain territory to the District, called for the preparation of an Annexation and Annual Levy report, and set May 4, 2022 as the date for the public hearing. An assessment ballot has been mailed to the property owner of record of the parcel(s) to be assessed, in accordance with Article XIII D of the California Constitution. At the public hearing, if the ballot is returned affirmative, the City Council can approve the Annexation. If the ballot indicates opposition for the Annexation, the City Council cannot adopt the resolution.
DISCUSSION
Approval of the Annexation will provide for the continued maintenance, and servicing of streetlighting improvement in the District after the developer installs them and the City accepts them.
FISCAL IMPACT
The Report indicates the proposed assessments for the City of Palmdale Streetlight Maintenance Assessment District No. 2022-203. The total combined maximum assessment revenue from the District for fiscal year 2022/2023 is $7,776.00 and the City’s general benefit contribution is $431.08. The appropriate funding source for the general benefit contribution will be determined during the FY 2022/2023 budget review process.
STRATEGIC PLAN
Goal III: Invest in infrastructure to improve community livability.
A. Seek innovative, cost effective, customer focused methods of service delivery.
C. Plan and maintain safe and attractive neighborhoods, streets, facilities, and public spaces with exciting programming that promotes active fun for everyone
Prepared by: Chuck Heffernan P.E., Director of Public Works Certified as to availability of Funds: Janelle Samson, Director of Finance Approved by: Ronda Perez, Interim City Manager
Approved as to form: Christopher Beck, City Attorney
Report to Mayor and City Council
Re: Palmdale SLAD No. 1, Annexation No. 2022-203
May 4, 2022
ATTACHMENTS
1. Resolution No. CC 2022-036
2. Annexation and Annual Levy Report for City of Palmdale Streetlight Maintenance Assessment District No. 2022-203
COUNCIL
CITY OF PALMDALE, CALIFORNIA
RESOLUTION NO. CC 2022-036
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALMDALE
CONFIRMING THE BALLOT RESULTS TO DETERMINE THAT NO
MAJORITY PROTEST EXISTS IN THE PROCEEDINGS, AND ORDERING
THE ANNEXATION OF CERTAIN TERRITORY INTO THE CITY OF
PALMDALE STREETLIGHT MAINTENANCE ASSESSMENT DISTRICT
NO. 1, AS ANNEXATION 2022-203
WHEREAS, on May 4, 2022 by Resolution CC 2022-034, the City Council initiated proceedings to annex territory to the City of Palmdale Streetlight Maintenance Assessment District No. 1 (the “District”), as Annexation 2022-203 to pay for costs for the maintenance and services of all improvements and facilities pursuant to the terms and provisions of the Landscaping and Lighting Act of 1972 (Sections 22500 and following of the Streets and Highways Code of California) (the "1972 Act"), Article XIII D of the Constitution of the State of California (“Article XIIID”) and the Proposition 218 Omnibus Implementation Act (Government Code Section 53750 et seq.) (the “Omnibus Act” and, together with the 1972 Act and Article XIIID, the “Assessment Law”); and WHEREAS, the City Council did order and subsequently receive an Annexation and Annual Levy Report (hereafter referred to as the “Report”) prepared by NBS in accordance with the Assessment Law; and
WHEREAS, the Report has been made a part of the record of these proceedings and is on file in the office of the City Clerk of the City (the "City Clerk"); and WHEREAS, on May 4, 2022 by Resolution No. CC 2022-035, the City Council (a) set the time and place for the purpose of hearing protests to the proposed annexation of territory to the District and (b) ordered that the record owner of each parcel proposed to be assessed have the right to submit an assessment ballot in favor of or in opposition to the assessment proposed to be levied on such parcel; and WHEREAS, the owners of certain property have requested that the Territory be annexed to the District in order to provide for the levy of annual assessments to finance the maintenance of the Improvements; and
WHEREAS, all of the owners of the Territory have filed with the City Clerk duly executed forms entitled “A Petition to the City Council of the City of Palmdale, County of Los Angeles, State of California, Petitioning the Council to Initiate Proceedings for the Annexation of Territory to the City of Palmdale Streetlight Maintenance Assessment District No. 1, as Annexation 2022-203 (the “Annexation”), Parcel Map No. 83189, only the portion of assessor’s parcel number 3051-021-022 identified as Parcel 2, located on the northwest corner of Ft. Tejon Road (Highway 138) and Pearblossom Highway, Pursuant to the Landscaping and Lighting Act of 1972, Being Part 2 of Division 15 of the Resolution No. CC 2022-036
California Streets and Highways Code and as provided by Article XIIID of the California Constitution” (the “Petition, Consent and Waiver”); and WHEREAS, by such Petition, Consent and Waiver, all of the owners of the Territory have expressly waived any and all of the procedural requirements as prescribed in the Act to the annexation of the Territory to the District and have expressly consented to the annexation of the Territory to the District; and WHEREAS, by such Petition, Consent and Waiver, all of the owners of the Territory have also expressly waived any and all of the procedural requirements as prescribed in the Act and/or Article XIII D applicable to the authorization to levy the proposed annual assessment against the Territory set forth in the Report and incorporated herein by this reference and have declared support for, consent to and approval of the authorization to levy such proposed annual assessment set forth in the Report incorporated herein by this reference; and
WHEREAS, notices of such hearing, accompanied by assessment ballot materials, were mailed to each such record owner in the time, form and manner required by the Assessment Law, a full hearing has been given, and at this time all assessment ballots submitted and not withdrawn pursuant to the Assessment Law have been tabulated by the tabulation official appointed by the City (the “Tabulation Official”), all in the manner provided by the Assessment Law; and
WHEREAS, the Tabulation Official has prepared and submitted to this legislative body a Certificate of Tabulation Official and Statement of Assessment Ballots Submitted (the “Certificate of the Tabulation Official”), a copy of which is attached as Exhibit “A” hereto and incorporated herein by this reference, which reflects the results of the tabulation of the assessment ballots submitted and not withdrawn; and WHEREAS, this City Council is now satisfied with the assessments and all matters contained in the Report as submitted.
NOW THEREFORE, BE IT RESOLVED, THE CITY COUNCIL OF THE CITY OF
PALMDALE DOES HEREBY FIND, DETERMINE, RESOLVE AND ORDER AS
FOLLOWS
SECTION 1. The above recitals are all true and correct and by this reference made an operative part hereof.
SECTION 2. The City Council hereby finds and determines that the procedures for the consideration of the Annexation have been undertaken in accordance with the Assessment Law.
Resolution No. CC 2022-036
SECTION 3. The Report, as now submitted, is hereby approved and such Report shall stand as the report as required by the Assessment Law for all future proceedings for this Annexation.
SECTION 4. Assessment ballots were mailed, as required by the Assessment Law, to the record owners of all properties proposed to be assessed within the Annexation. The assessment ballots that were completed and received by the City Clerk, prior to the close of the Public Hearing, have been tabulated in accordance with the procedures established under the Assessment Law and the results of such tabulation have been submitted to this City Council.
SECTION 5. This City Council hereby finds that the assessment ballots submitted, and not withdrawn, in opposition to the levy of assessments do not exceed the assessment ballots submitted, and not withdrawn, in favor of such levy as weighted by assessment amount in accordance with the Assessment Law. Therefore, no majority protest to the Annexation has been found to exist.
SECTION 6. The City Council hereby orders the Annexation and assessments to be levied as set forth in the Report.
SECTION 7. Based upon the Report and the testimony and other evidence presented at the Public Hearing, the City Council hereby makes the following determinations regarding the assessments to be levied for Fiscal Year 2022/23.
a. The proportionate special benefit derived by each assessable parcel from the maintenance and servicing of the improvements has been determined in relationship to the entirety of the cost of such maintenance and service expenses.
b. The assessments do not exceed the reasonable cost of the proportional special benefits conferred on each parcel.
c. Only special benefits have been assessed, and the general benefits have been separated from the special benefits.
d. All publicly owned parcels within the Annexation that derive special benefits from the maintenance and servicing of the improvements have been assessed for such special benefits.
SECTION 8. The assessments for the Annexation contained in the Report for Fiscal Year 2022/23 are hereby confirmed and levied upon the respective lots or parcels within the Annexation as set forth in said Report. Subsequent annual assessments, in amounts not to exceed an established maximum annual assessment may be confirmed and levied without further assessment ballot proceedings pursuant to the Assessment Law. Each fiscal year, beginning Fiscal Year 2023/24, the maximum amount of each assessment Resolution No. CC 2022-036
may be increased by the formula contained in the Report without further compliance with the assessment ballot procedures required under the Assessment Law.
SECTION 9. The public interest and convenience requires and this legislative body does hereby order the maintenance work to be made and performed as set forth in the Report.
SECTION 10. The diagram and assessments shall be filed in the Office of the City Clerk.
Said diagram and assessments, and the certified copy thereof, shall be open for public inspection.
SECTION 11. The City Clerk is hereby ordered and directed to immediately file by no later than the third Monday in August 2022 a certified copy of the diagram and assessment with the Los Angeles County Auditor.
SECTION 12. After the filing of the diagram and assessment, the Los Angeles County Auditor shall enter onto the Los Angeles County assessment roll opposite each lot or parcel of land, the amount assessed thereon as shown in the assessment.
SECTION 13. The assessments shall be collected at the same time and in the same manner as Los Angeles County secured taxes are collected and all laws providing for the collection and enforcement of Los Angeles County taxes shall apply to the collection of the assessments.
SECTION 14. The assessments as above confirmed and levied for these proceedings will provide revenue to finance the maintenance of authorized improvements in the fiscal year commencing July 1, 2022 and ending June 30, 2023.
Resolution No. CC 2022-036
SECTION 15. The City Clerk shall certify to the adoption of this Resolution.
PASSED, APPROVED and ADOPTED this 4th day of May, 2022. _________________________________
Approved as to form: Steven D. Hofbauer, Mayor
ATTEST:
___________________________ _________________________________ Christopher L. Beck Shanae S. Smith, City Clerk
City Attorney
I, Shanae S. Smith, City Clerk of Palmdale, California, do hereby certify that the foregoing resolution was duly passed, approved, and adopted by the Council of the City of Palmdale at a regular meeting of said Council held on the 4th day of May, 2022 by the following roll call vote:
AYES: ___________________________________________________________ NOES: ___________________________________________________________ ABSTAIN: ______________________ABSENT:___________________________ Date: ______________________________ _____________________________ Shanae S. Smith, City Clerk
Exhibit A
Certificate of Tabulation Official
and
Statement of Assessment Ballots Submitted
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES )
ss. CITY OF PALMDALE )
The undersigned, the duly authorized tabulation official appointed by the City Council of the City of Palmdale, DOES HEREBY CERTIFY that pursuant to the provisions of Article XIIID of the Constitution of the State of California and the Proposition 218 Omnibus Implementation Act (Government Code Section 53750 and following), I did tabulate the assessment ballots timely submitted, and not withdrawn, in the assessment ballot proceedings pertaining to the City of Palmdale Streetlight Maintenance Assessment District No. 1 as Annexation 2022-203.
I FURTHER CERTIFY that this Statement of Assessment Ballots Received shows the assessment ballots submitted, and not withdrawn, in favor of the proposed assessment and the assessment ballots submitted, and not withdrawn, in opposition to the proposed assessment, each total weighted according to the financial obligation of the affected properties for which the assessment ballots were submitted.
Total assessment ballots distributed
Total assessment ballots received
Total assessment ballots invalidated
Assessment ballots received in favor of the proposed
assessment:
Weighted value of assessment ballots received in favor of the proposed assessment
Percent of assessment ballots received in favor of the
proposed assessment
Assessment ballots received in opposition to the proposed assessment:
Weighted value of assessment ballots received in opposition to the proposed assessment
Percent of assessment ballots received in opposition to the proposed assessment
This certification is executed this day of , 2022 in Palmdale, California.
By:
Title: ______________________________________
nbsgov.com
Prepared by:
Corporate Headquarters
32605 Temecula Parkway, Suite 100
Temecula, CA 92592
Toll free: 800.676.7516
Annexation and Annual Levy Report For:
Streetlight Maintenance
Assessment District No. 1
Annexation 2022-203
Pilot Travel Center
March 202 2
Fiscal Year 2022/23
TABLE OF CONTENTS
1. INTRODUCTION ......................................................................................... ..................... 1
1.1 District History ........................................................................................................... 1
1.2 Legislative Context .................................................................................................... 2
1.3 Court Rulings ............................................................................................................. 2
2. IMPROVEMENTS ......................................................................................... .................... 4
2.1 Streetlight Maintenance ........................................................................................... 4
3. BENEFITS ............................................................................................. ........................... 6
3.1 Improved Safety and Crime Prevention .................................................................... 6
4. SPECIAL BENEFIT DISTRIBUTION ......................................................................... ............. 8
4.1 Parcel Size .................................................................................................................. 8
4.2 Land Use Type ........................................................................................................... 8
4.3 Total Special Benefit Points ....................................................................................... 9
5. SEPARATION AND QUANTIFICATION OF GENERAL BENEFITS ......................................... 10
5.1 Summary ................................................................................................................. 10
5.2 General Benefits Identified ..................................................................................... 10
5.3 General Benefit Analysis ......................................................................................... 10
6. BUDGET ............................................................................................... ......................... 14
6.1 Maximum Balance to Be Assessed .......................................................................... 14
6.2 Maximum Assessment Rate per Special Benefit Point ........................................... 14
6.3 Annual Maximum Assessment Rate Increases........................................................ 15
6.4 Future Changes to Parcel Characteristics ................................................................ 15
6.5 Data for Annual Assessment Calculations ............................................................... 15
6.6 Appeals .................................................................................................................... 15
6.7 Method of Collection .............................................................................................. 16
7. ENGINEER’S STATEMENT .............................. ................................................... ............. 17
8. ASSESSMENT DIAGRAM ................................................................................... ............. 18
9. ASSESSMENT ROLL ...................................................................................... .................. 19
10. REFERENCES ........................................ ................................................... ...................... 20
City of Palmdale
Annexation and Annual Levy Report – Streetlight Maintenance Assessment District No. 1, Annexation 2022-203 1
1. INTRODUCTION
1.1 District History
The City of Palmdale (“City”) provides maintenance and servicing of certain publicly owned streetlights throughout it’s jurisdictional boundaries. In order to fund the maintenance and operation (the “Services”) of these projects and improvements, the City has formed five Streetlight Maintenance Assessment Districts, including subsequent Annexations, covering over 40,880 parcels. The assessments described in this Report have been prepared pursuant to Article XIII D of the California Constitution, the Proposition 218 Omnibus Implementation Act (Division 2 of the California Government Code §53739 et seq.), and the Landscaping and Lighting Act of 1972 (Division 15 of the California Streets and Highways Code §22500 et seq.) collectively, the “Assessment Law”.
As a condition of approval, the Pilot Travel Center is required to fund the maintenance and servicing associated with the streetlight improvements fronting the parcel along Pearblossom Highway. Per the tentative parcel map extracted from the City of Palmdale Pilot Travel Center Initial Study dated March 1, 2021 (“Initial Study”), the Annexation will consist of only Parcel 2, which is the portion of assessor’s parcel number 3051-021-022 located on the northwest corner of Ft. Tejon Road (Highway 138) and Pearblossom Highway as illustrated below.
City of Palmdale
Annexation and Annual Levy Report – Streetlight Maintenance Assessment District No. 1, Annexation 2022-203 2 The Pilot Travel Center consists of a travel center building, 123 parking spaces, gas islands and truck diesel fueling lanes on 8.60 net acres of property. The Streetlight Maintenance Assessment District No. 1, Annexation 2022-203 (the “Annexation”) is proposed to fund the maintenance and servicing of streetlights that benefit the parcel that forms the Annexation.
1.2 Legislative Context
Determinations of special and general benefits must comply with the requirements of Assessment Law.
The following is a description of the legislative context within which this report is written.
In 1996, California Voters adopted Proposition 218, the “Right to Vote on Taxes Act” which added Articles XIII C and XIII D to the California Constitution. Article XIII D imposes certain substantive and procedural requirements on any agency that wishes to levy special assessments.
The substantive requirements are twofold: (1) assessments can only be imposed for a “special benefit” conferred on an assessed parcel, and (2) assessments must be in proportion to, and no greater than, the special benefit conferred on an assessed parcel.
The special benefit and proportionality requirements are described in Section 4, Subdivision (a) of Article XIII D: “ An agency which proposes to levy an assessment shall identify all parcels which will have a special benefit conferred upon them and upon which an assessment will be imposed. The proportionate special benefit derived by each identified parcel shall be determined in relationship to the entirety of the capital cost of a public improvement, the maintenance and operation expenses of a public improvement, or the cost of the property related service being provided. No assessment shall be imposed on any parcel which exceeds the reasonable cost of the proportional special benefit conferred on that parcel. Only special benefits are assessable, and an agency shall separate the general benefits from the special benefits conferred on a parcel …”
In addition to its substantive requirements, Article XIII D imposes certain procedural requirements, which include preparing an engineer’s report, providing written notice to property owners, providing assessment protest ballots to property owners, holding a public hearing, and tabulating the assessment protest ballots.
1.3 Court Rulings
Since the initial passage of Proposition 218, several court rulings have helped provide context and direction on the practical implementation procedures and requirements for levying assessments. Several of the key concepts from these rulings are summarized below.
1.3.1 GENERAL BENEFIT
Article XIII D requires an agency to separate the general benefits from the special benefits conferred because only special benefits are assessable.
The Court of Appeal in Golden Hills Neighborhood Assn., Inc. v. City of San Diego (2011) (“Golden Hills”) i
clarified this concept by stating, “ Separation and quantification of general and special benefits must be accomplished by apportioning the cost of a service or improvement between the two and assessing property owners only for the portion of the cost representing special benefits .”
City of Palmdale
Annexation and Annual Levy Report – Streetlight Maintenance Assessment District No. 1, Annexation 2022-203 3 The Court of Appeal in Beutz v. County of Riverside (2010) (“Beutz”)ii quoted from the Legislative Analyst’s Office pamphlet titled “Understanding Proposition 218” which states an agency must, “ estimate the amount of special benefit landowners would receive from the project or service, as well as the amount of ‘general benefit.’ This step is needed because Proposition 218 allows local government to recoup from assessments only the proportionate share of cost to provide the special benefit. ” The Court in Beutz furthered this idea stating, “ Separating the general from the special benefits of a public improvement project and estimating the quantity of each in relation to the other is essential if an assessment is to be limited to the special benefits.”
1.3.2 BENEFIT-BASED NOT COST-BASED
In Bonander v. Town of Tiburon (2009) (“Tiburon”)iii , the Court of Appeal clarified the idea that assessments must be apportioned based upon benefit rather than cost. The Court stated, “ Proportionate special benefit is the basis upon which a project’s total assessable costs are apportioned among parcels within an assessment district. ”
The assessment on a particular property cannot be based on the relative cost of the improvements, but rather the special benefit conferred on such property. The Court in Tiburon also stated, “ an assessment represents the entirety of the cost of the improvement or property-related service, less any amount attributable to general benefits (which may not be assessed), allocated to individual properties in proportion to the relative special benefit conferred on the property .”
1.3.3 PUBLIC PROPERTY
Section 4, Subdivision (a) of Article XIII D states, in part, “ Parcels within a district that are owned or used by any agency, the State of California or the United States shall not be exempt from assessment unless the agency can demonstrate by clear and convincing evidence that those publicly owned parcels in fact receive no special benefit. ” Historically, there had been differing opinions about whether this requirement that publicly owned property should not be exempt actually meant those properties must be assessed.
The Court of Appeal in Manteca Unified School District v. Reclamation District No. 17 et al (2017) (“Manteca”)iv clarified this issue by stating, “section 4, subdivision (a) of article XIII D of the California Constitution unambiguously conditions any continuing benefit assessment exemption on a showing by clear and convincing evidence of no special benefit. ”
1.3.4 IMPRECISION
The Court in Tiburon acknowledged the difficulty of trying to precisely assign and measure special benefit, stating, “ Any attempt to classify special benefits conferred on particular properties and to assign relative weights to those benefits will necessarily involve some degree of imprecision. ” The Court in Tiburon went on to say that a formula assigning equal weight to different special benefits “may be a legally justifiable approach to measuring and apportioning special benefits, [but] it is not necessarily the only valid approach. Whichever approach is taken to measuring and apportioning special benefits, however, it must be both defensible and consistently applied .”
City of Palmdale
Annexation and Annual Levy Report – Streetlight Maintenance Assessment District No. 1, Annexation 2022-203 4
2. IMPROVEMENTS
The improvements to be maintained and serviced within the Annexation are to be part of the local and peripheral streetlight and traffic signal system of the City of Palmdale that confers special benefit to the Annexation parcel. The specific location of both local and periphery streetlight and traffic signal improvements within the City can be found on the Streetlight Inventory Maps maintained by the City and on file in the office of the City Engineer where they are available for inspection. The City also maintains a lamp location list that is tabulated listing every street in the Annexation by alphabetical order. Included in the items listed for each lamp are the exact location by street address number and lamp size.
Also included within the City streetlight system are traffic signals and highway safety lights (lights mounted on traffic signal poles). Traffic signal improvements may include both local and periphery traffic signals.
Local traffic signals are signals or portions thereof installed within the annexation. Peripheral traffic signals are portions of traffic signals installed outside of the annexation.
The local streetlight improvements to be maintained and serviced within the Annexation include six (6) streetlights and one (1) traffic signal within the right of way of the local public streets located within the boundaries of the Annexation. These lights are all within close proximity to the Annexation parcel identified as receiving local lighting benefit, and as such, provide special benefit to the parcel.
The City seeks to fund the following services and maintenance activities:
Streetlight Maintenance
The services and maintenance activities listed above are collectively referred to as the “Improvements.” The Improvements include, but are not limited to, the removal, repair, relocation, replacement or acquisition of light standards, poles, bulbs, fixtures and appurtenances, electrical energy, supplies, engineering and incidental costs relating to the maintenance and servicing of the street lighting and traffic signal improvements benefiting the parcels within the Annexation. The Assessment Diagram and Legal Description for the Annexation can be found in Section 8 of this report.
2.1 Streetlight Maintenance
As part of the conditions of approval of the project, the property owner requested the formation of a streetlight maintenance assessment district to fund the Improvements along Pearblossom Highway fronting the Annexation for the Pilot Travel Center located on the northwest corner of Ft. Tejon Road (Highway 138) and Pearblossom Highway. The lights to be maintained by the Annexation include a total of six (6) streetlights, lamp type 100W, 14,457 Lumen and one (1) traffic signal to be installed at the shared roadway and Pearblossom Highway. Below is a diagram pulled from the City of Palmdale Pilot Palmdale Street Lighting Electrical Plan illustrating the proposed area in which the Improvements can be found.
City of Palmdale
Annexation and Annual Levy Report – Streetlight Maintenance Assessment District No. 1, Annexation 2022-203 5
City of Palmdale
Annexation and Annual Levy Report – Streetlight Maintenance Assessment District No. 1, Annexation 2022-203 6
3. BENEFITS
The Improvements will confer special benefits upon the parcel within the Annexation. These benefits are summarized in the table below:
Improvement Benefit(s)
Street Lighting Improved Safety and Crime Prevention
Improved Access and Traffic Circulation
The special benefits to be conferred by the Improvements are detailed below.
3.1 Improved Safety and Crime Prevention
The street lighting improvements will confer safety benefits and help mitigate potential criminal activity within the Annexation. This benefit extends to property, as adequate lighting should decrease vandalism and other property-related crime. The following safety and crime prevention benefits will be provided as a result of the street lighting improvements.
The street lighting improvements will provide enhanced lighting throughout the Annexation, which will ensure that sidewalks, streets and property fronts are more visible during dusk and night time hours. The increased level of visibility, during these darker periods of the day, will reduce opportunities for potential vandalism and other property-related crimes. “Lighting has a positive effect on reducing crime and the positive benefits are similar to those observed for roadway lighting reducing crashes.” The creation of a cohesive neighborhood is also accomplished by lighting in that “lighting may send a message that goes beyond visibility as a means for providing a community with crime-reducing benefit.” (Review of the Safety Benefits and Other Effects of Roadway Lighting, National Cooperative Highway Research Program, Transportation Research Board of the National Academies, 2009).
The street lighting improvements also provide a measure of safety for pedestrian and vehicular traffic within the Annexation. “Published studies having different methodologies tend to converge on an overall average reported 20% to 30% reduction in night time crash risk from lighting” (National Cooperative Highway Research Program Transportation Research Board of The National Academies, 2009). This is of particular importance in a residential area where pedestrians are likely to be present during night time hours. The same report also states, “… lighting has a positive effect on reducing crime ...” Therefore, the street lighting improvements will confer safety benefits to property within the Annexation.
3.2 Improved Access and Traffic Circulation
The street lighting improvements also provide improved accessibility and traffic circulation benefits to the Annexation parcel where the access route to the property utilizes street lighting. The maximum usefulness of a parcel cannot be fully realized unless it is accessible. Thus, improving the accessibility of a parcel especially during night time hours, through proper street lighting, can improve the overall utilization of the parcel. The street lighting improvements will also improve the overall accessibility for emergency response vehicles. The efficient and timely response to emergencies is a critical component to the effectiveness of emergency response. It is reasonable to conclude that improving street lighting will improve accessibility
City of Palmdale
Annexation and Annual Levy Report – Streetlight Maintenance Assessment District No. 1, Annexation 2022-203 7 and emergency response efficiency, especially during the night time hours for the parcel within the Annexation.
The street lighting improvements will also provide improved traffic circulation benefits by facilitating a more efficient and safer flow of traffic to and from properties within the Annexation between the dusk and dawn hours. This increased traffic circulation benefit is due to the fact that well-maintained and reliable lighting artificially extends the “lighted” hours, which increases the amount of time for activity to occur. It is a well- accepted fact that pedestrian and traffic safety is considerably reduced in the hours of darkness. Various studies have concluded that good quality street lighting reduces the accident rate by increasing the overall visibility, as vehicle headlights are inadequate for high speed traffic. “Driving outside of daylight hours is more dangerous – only a quarter of all travel by car drivers is between the hours of 7pm and 8am, yet this period accounts for 40% of fatal and serious injuries in the same group.” (Night-time accidents: a scoping study, UCL, London, 2009). Therefore, the street lighting improvements will confer traffic circulation benefits to property within the Annexation.
City of Palmdale
Annexation and Annual Levy Report – Streetlight Maintenance Assessment District No. 1, Annexation 2022-203 8
4. SPECIAL BENEFIT DISTRIBUTION
Once special benefits are identified, they must be assigned based on the estimated proportionate special benefit derived by the parcel. This section describes the assignment of special benefits to the parcel.
4.1 Parcel Size
It is believed parcels of the same use will experience different degrees of special benefit in relation to differences in their acreage. For example, a parcel with a large acreage will experience greater special benefit than a parcel with a small acreage. Accordingly, as acreage increases, parcels are considered to receive proportionately greater special benefit. Therefore, these parcel characteristics are deemed appropriate factors for determining proportional special benefit.
The Annexation consists of only the one parcel, classified by the County as a Commercial Land Use.
Consequently it is expected the parcel will experience special benefits from the Improvements. Therefore, the Parcel Size Factor per acre is 1.00. The net acreage of the Annexation parcel is 8.60, therefore the Parcel Size Factor for the parcel is 8.60.
4.2 Land Use Type
In addition to parcel size, a parcel’s land use type will also affect the special benefits received. Following the assignment of the Parcel Size Factor, a Land Use Benefit Point was assigned. This benefit point corresponds to the special benefits described in the Benefits section of this report.
The parcel within the proposed Annexation boundary is assigned a land use type for purposes of determining the special benefits received. Below is a description of the land use type category to be assessed within the Annexation.
Commercial Property consists of parcels used for commercial purposes and intended to generate revenues, used exclusively for non-residential purposes.
4.2.1 APPORTIONING SAFETY AND CRIME PREVENTION BENEFIT For the most part, Safety and Crime Prevention benefits are universal benefits for the parcel within the Annexation. The overall appeal and safety of an area is enhanced when street lighting improvements are in place and kept in a satisfactory condition. Conversely, appeal and safety decreases when street lighting is not operational or provides inconsistent illumination. Therefore, the parcel is assigned 1.00 benefit point for Safety and Crime Prevention.
4.2.2 APPORTIONING ACCESS AND TRAFFIC CIRCULATION BENEFIT Generally, Access and Traffic Circulation benefits are universal benefits for the parcel within the Annexation.
The improved accessibility and traffic circulation benefits to the Annexation parcel maximizes the overall usefulness of the parcel. Therefore, the parcel is assigned 1.00 benefit point for Access and Circulation.
4.2.3 LAND USE BENEFIT POINTS
The table below summaries the Land Use Benefit Points assigned to the parcel within the Annexation:
City of Palmdale
Annexation and Annual Levy Report – Streetlight Maintenance Assessment District No. 1, Annexation 2022-203 9 Land Use Type Safety and Crime
Prevention
Access and Traffic
Circulation
Total Land Use
Benefit Points
Commercial 1 1 2
4.3 Total Special Benefit Points
The calculation of Total Special Benefit Points for the parcel takes into account each component analyzed and described above, parcel characteristics and land use. The formula for determining the parcel’s Total Benefit Points is as follows:
Parcel
Size
Factor
x Land Use Benefit
Points = Total Special
Benefit Points
The Total Special Benefit Points are computed for the parcel in the Annexation and summed. The Total Annexation Special Benefit Points are 17.20. These Total Annexation Special Benefit Points are used to determine the proposed assessment amounts on each parcel.
Below is a sample Total Special Benefit Points calculation for the parcel in the Annexation:
Parcel Size Factor Land Use Benefit
Points Total Special Benefit
Points
8.60 X 2.00 = 17.20
City of Palmdale
Annexation and Annual Levy Report – Streetlight Maintenance Assessment District No. 1, Annexation 2022-203 10
5. SEPARATION AND QUANTIFICATION OF GENERAL
BENEFITS
As described in the Introduction, only special benefits are assessable and in order to assess only special benefits, the general benefits resulting from the Improvements must be separated and quantified. This section describes the process used to separate and quantify the general benefits.
5.1 Summary
As detailed below, it is estimated the Improvements will confer an Effective General Benefit of 5.54%.
5.2 General Benefits Identified
Section 4 of Article XIIID of the California Constitution provides that once a local agency which proposes to impose assessments on property has identified those parcels that will have special benefits conferred upon them and upon which an assessment will be imposed, the local agency must next “separate the general benefits from the special benefits conferred,” and only the special benefits can be included in the amount of the assessments imposed.
General benefit is an overall and similar benefit to the public at large resulting from the maintenance of the Improvements provided by the assessments levied. The Improvements to be maintained by the Annexation are located within the Annexation boundaries only. There will be no Annexation maintenance activities provided for Improvements located outside of the Annexation boundaries.
The ongoing maintenance of the Improvements will provide safety and crime prevention and access and traffic circulation benefits to the property within the Annexation. However, it is recognized that the ongoing maintenance activities will also provide a level of benefit to some property within proximity to the Annexation, as well as individuals passing through. Therefore, the general benefit created as a result of the Annexation maintenance activities has been considered.
5.3 General Benefit Analysis
As a result of the maintenance and operation of the Improvements, there will be a level of general benefit to people that do not work or intend to conduct business within the Annexation. In order for property within the Annexation to be assessed only for that portion of special benefits received from the Annexation’s maintenance activities, general benefits provided by the ongoing maintenance of the Improvements needs to be quantified. The amount of general benefit that is provided from the Annexation’s maintenance activities cannot be funded via property owners’ assessments.
Per the Initial Study, primary access to the Pilot Travel Center site would be provided from Pearblossom Highway and connect to a shared access roadway at the northeast corner of the Pilot Travel Center site.
Pearblossom Highway is proposed to be widened to its ultimate half-width right-of-way (ROW) from the Pilot Travel Center site’s western property line to the proposed travel center’s easterly property line, which includes the shared roadway. At the intersection of the shared roadway and Pearblossom Highway, a traffic signal would be installed.
City of Palmdale
Annexation and Annual Levy Report – Streetlight Maintenance Assessment District No. 1, Annexation 2022-203 11
5.3.1 GENERAL BENEFIT: PASS THROUGH TRAFFIC LOCAL/COLLECTOR STREETS For purposes of determining general benefits, all streets within the Annexation other than Pearblossom Highway are considered local/collector streets by the City. The local/collector streets within the Annexation are intended to serve individual neighborhoods and not to be pass through streets, but cul-de-sacs or loop roads to reduce through traffic. In addition, according to the City’s Adopted General Plan Circulation Element v, “local street design should provide efficient connection to the arterial highway system while discouraging excessive speeds and volumes”.
From a visual inspection of the layout of the Annexation, one must conclude that the purpose of the collector streets is exclusively intended for the benefit of the Annexation. There are no local streets that provide a direct or efficient means of traveling from one place to another such that one could reasonably expect a driver to purposefully choose the local streets as the best route for travel unless necessary because the route either began or ended in the Annexation. Given the localized nature of traffic, one could imagine a small degree of “residential tourism” wherein drivers are in fact simply “passing through” to enjoy the natural surroundings or perhaps lost on their way to their intended destination. As such, approximately
1.00% general benefit is attributable to vehicles passing through the Annexation via the collector streets.
Pass Through Traffic Local/Collector Streets General Benefit
1.00%
5.3.2 GENERAL BENEFIT: PASS THROUGH TRAFFIC ARTERIAL ROAD As a result of the Improvements, there will be a level of general benefit conferred to pass through vehicle traffic related to properties outside of the Annexation whose occupants do not intend to access property within the Annexation. Pearblossom Highway is classified by the City of Palmdale as a major arterial road, ultimately proposed to be widened as a result of this development. As such, the benefit derived by pass through vehicle traffic needs to be quantified. In order to do this, we must first estimate the average daily vehicle trips through the Annexation.
The City’s Traffic Transportation Division provided daily trip counts for Pearblossom Highway East and West.
Based upon the average of those daily trip counts, the total estimated daily trip traffic through the Annexation is 17,755 vehicle trips.
Next, we must estimate the number of daily vehicle trips generated by ADT (average daily trip) land uses within the Annexation. To accomplish this, data from the ITE Trip Generation Manual was used to estimate the average daily vehicle trips for each ADT land use type within the Annexation identified in the Initial Study. The land uses included in the Initial Study are 960, 950, 940. 944, 853, and 851. The estimated number of daily vehicle trips generated by properties within the Annexation is approximately 1,240.10, as summarized below.
ITE Land Use Type
Estimated Daily
Vehicle Trips (1)
960 – Super Convenience Market/Gas Station 230.91
950 – Truck Stop 455.53
944 – Gasoline/Service Station 275.78
853 – Convenience Market with Gasoline Pumps 34.50 851 – Convenience Market 243.38
Total 1,240.10
City of Palmdale
Annexation and Annual Levy Report – Streetlight Maintenance Assessment District No. 1, Annexation 2022-203 12 (1) Extracted from the Trip Generation, 9th Edition: An Informational Report of the Institute of Transportation Engineers. (2012) Washington, DC: Instit ute of Transportation Engineers.
Therefore, the estimated number of pass through vehicle trips related to properties outside of the Annexation is 16,515.
Average Vehicle Trips
Through Annexation
Estimated Annexation -
Generated Vehicle Trips
Estimated Pass
Through Vehicle Trips
17,755 - 1,240 = 16,515
However, simply estimating the number of pass through vehicle trips does not necessarily indicate the level of benefit accruing to vehicles passing through the Annexation. Estimating the total amount of time these pass through vehicles spend driving through the Annexation, as compared to the time drivers spend within the Annexation, is a better indicator of the temporary benefits accruing to vehicles passing through the Annexation.
To estimate the total time these pass through vehicles spend within the Annexation, and receive benefit from the Improvements, we must take into account the total road length of Pearblossom Highway containing the Improvements, as well as the average traffic speed (using local speed limits):
Street
Length (in Miles)
Within Annexation
Average Speed
Within Annexation
(MPH)
Travel Time (in
Hours) Through
Annexation per
Vehicle
Pearblossom Highway 0.1 52 55 0.002 8
Applying the total travel time through the Annexation per vehicle of 0.0028 hours to each of the pass through vehicle trips results in an aggregate daily pass through time of 46 hours, in which vehicles passing through the Annexation spend in proximity to the Improvements:
Travel Time (in Hours)
Through Annexation per
Vehicle
Estimated Pass Through
Vehicle Trips
Total Pass Through
Time (in Hours)
0.0028 x 16,515 = 46
Further, the amount of time that Annexation vehicles spend in proximity to the Improvements should also be considered to determine the overall benefit of the Improvements. Vehicles located within the Annexation are located in close proximity to the Improvements for a period of time and experience benefit from these Improvements while in the Annexation. It is estimated the average vehicle will spend one (1) hour in the Annexation. As such, the previously identified daily pass through time of vehicles receiving limited benefit from the Improvements should be compared to the total time the Annexation vehicles spend in proximity to Annexation Improvements:
Time Class Hours Percentage
Total Pass Through Time 46 3.54%
Total Annexation Vehicle Time 1 1,240 96.46%
Totals 1,2 86 100.00%
(1) Equals the average daily trip count of vehicles within the Annexation (1,240) multiplied by 1 (hour).
City of Palmdale
Annexation and Annual Levy Report – Streetlight Maintenance Assessment District No. 1, Annexation 2022-203 13 Of the total benefits provided by the Improvements, the percentage of time allocated to vehicles passing through the Annexation is 3.54%.
Additionally, an estimated 1% of all US trips are made by bicycle vi . Although the Annexation fronts
Pearblossom Highway and there is no dedicated bike lane along the highway, there is a sidewalk and the ability to pass through the Annexation by bicycle. There is also a residential community immediately adjacent to the Annexation on the west end. Therefore, it would be reasonable to assume there would be some level of general benefit received from bicycle traffic passing through the Annexation. According to the National Household Travel Surveys, 49% of bike trips are for recreation, exercise, and sports vii . As a result, approximately 1.00% general benefit is attributable to bicycles passing through the Annexation.
Therefore, the total percentage of general benefit accruing to vehicles and bicycles passing through the Annexation is 4.54%.
Pass Through Traffic Arterial Streets General Benefit 4.54%
5.3.3 TOTAL GENERAL BENEFIT
Since the Annexation is comprised of safety and crime prevention and improved access and traffic circulation benefits resulting from the Improvements, the activity of vehicles, pedestrians and bicycles passing through the Annexation must be addressed in a collective form rather than independently. This general benefit result is provided in the table below:
General Benefitr Percentage
Pass through Traffic Local/Collector Streets 1.00%
Pass through Traffic Arterial Roads 4.54%
Totals 5.54%
City of Palmdale
Annexation and Annual Levy Report – Streetlight Maintenance Assessment District No. 1, Annexation 2022-203 14
6. BUDGET
The following table summarizes the estimated annual costs to fund the Improvements for Fiscal Year 2022/23:
Description Amount
Maintenance
Direct Labor/Maintenance Costs $1,496.00
Utility Costs 5,280.00
Administration
Overhead/Engineer/Consultant Costs 1,000.00
Total Cost of Improvements $7,776.00
6.1 Maximum Balance to Be Assessed
The total maximum amount to be assessed upon the specially benefitting parcel is the total cost of the Improvements, as detailed above, less the portion of Maintenance costs attributable to General Benefit as detailed in the Separation and Quantification of General Benefits section.
The calculation of the balance to be assessed is shown below:
Description Amount
Total Cost of Improvements $7,776.00
Less Maintenance General Benefit Portion (5.54%) (431.08) Total Cost of Improvements to Be Assessed $7,344.92
6.2 Maximum Assessment Rate per Special Benefit Point
The Maximum Assessment Rate per Special Benefit Point is determined by dividing the Total Cost of Improvements to Be Assessed by the sum of the Total Annexation Special Benefit Points noted in Section 4.
The calculation of the Maximum Assessment Rate per Special Benefit Point is shown below:
Description Amount
Balance to Be Assessed $7,344.92
Total Annexation Special Benefit Points 17.20
Maximum Assessment Rate per Special Benefit Point (1) $427.03 (1) Beginning July 1, 2023 the maximum assessment per Special Benefit Point will be increased by the change in the February to February Consumer Price Index for all Urban Consumers, for the Los Angeles-Long Beach-Anaheim CA region compared year over year not to exceed 3% annually.
The Maximum Assessment Rate per Special Benefit Point is multiplied by each parcel’s Total Special Benefit Points to determine a maximum assessment amount per parcel. Below is a sample total maximum assessment calculation for a typical parcel in the Annexation:
City of Palmdale
Annexation and Annual Levy Report – Streetlight Maintenance Assessment District No. 1, Annexation 2022-203 15 Maximum
Assessment Rate
per Special Benefit
Point
Total Special Benefit
Points
Total Maximum
Assessment Amount
for the Parcel
$427.03 X 17.20 = $7,344.92
6.3 Annual Maximum Assessment Rate Increases
Each parcel’s actual assessment is determined by multiplying the assessment rate by the parcels total specific benefit points. If the total Annexation special benefit points change in future years, the allowable annual Maximum Assessment Rate will not be recalculated. The allowable annual Maximum Assessment Rate per special benefit point, plus the annual cost of living inflator, will remain fixed. The actual annual assessment rate will be calculated by dividing the fiscal year’s net cost estimate to be assessed by the fiscal year’s total special benefit points, not to exceed the allowable annual Maximum Assessment Rate for that fiscal year. The Maximum Assessment Rate per special benefit point is escalated each year on July 1 by the annual change in the February to February Consumer Price Index for all Urban Consumers, for the Los Angeles-Long Beach-Anaheim CA region not to exceed 3% annually, beginning July 1, 2023.
In any given year, the assessments may be levied at any rate sufficient to meet the estimated budget, as long as the actual assessment rate does not exceed the Maximum Assessment Rate for that fiscal year.
6.4 Future Changes to Parcel Characteristics
Future changes to parcel characteristics (building, frontage, and land use) will cause changes in the total assessment revenue. The assessment revenue for any given year will be the product of the Annexation’s parcel characteristics and the budget in effect for such fiscal year. Development within the Annexation that increases the overall building square footage, for example, will lead to increased assessment revenue, even if the assessment rate is not increased.
6.5 Data for Annual Assessment Calculations
Each year, as part of the assessment calculation procedures, the City or its designated consultant shall determine the land use type for each parcel based on the County Assessor's use code or other supplementary information made available and deemed reliable. The parcel characteristics of building square footage shall similarly be based on the County Assessor's secured rolled data for the applicable year and may be supplemented with other reliable data sources.
Assessment amounts may change over time in accordance with changes to parcel characteristics including land use type and building square footage.
6.6 Appeals
If any property owner believes the data used to calculate the assessment is inaccurate for any reason, the property owner shall submit, in writing, a request for review to the City. The property owner shall provide documentation needed to support the request for review. The City or its designated consultant shall
City of Palmdale
Annexation and Annual Levy Report – Streetlight Maintenance Assessment District No. 1, Annexation 2022-203 16 review the request and provide a response to the property owner. The property owner must be current in the payment of all assessments when filing the request for review and must remain current during the review process. The property owner should continue to pay any regular property taxes due according to the County's due dates.
If the review conducted by the City or its designated consultant results in changes to any parcel characteristics used to compute the assessment, the City or its designated consultant shall recalculate the assessment. When recalculating the assessment, the assessment rates actually applied in such fiscal year shall be used. Only the assessment for the parcel or parcels subject to review shall be recalculated.
If the recalculated assessment is less than the amount submitted to the County on the secured property tax roll, the difference shall be credited back to the property owner. This credit shall be limited to the current fiscal year and the prior fiscal year, if applicable. The “fiscal year” shall follow the County’s fiscal year for property taxes, from July 1 to June 30. The applicable fiscal year shall be determined by the date the request for review is submitted to the City.
For example, if a request for review is submitted to the City during Fiscal Year 2023/24, the Fiscal Year 2023/24 and 2022/23 assessments will be reviewed. The property owner credit shall be limited to any difference calculated for Fiscal Year 2023/24 (the current fiscal year) and Fiscal Year 2022/23 (the prior fiscal year).
The credit may be provided in the form of a check to the property owner, an adjustment to the current year’s property tax roll (if possible), or a credit to the succeeding year’s assessment thereby reducing the amount placed on the secured property tax roll for such year.
If the recalculated assessment is greater than the amount submitted to the County on the secured property tax roll, the City or its designated consultant shall apply the recalculated assessment to the succeeding year’s property tax roll and no adjustments shall be made to the prior or current fiscal years’ assessments.
In any dispute over parcel characteristic data used to compute assessments, the City shall make a conclusive determination and its decision shall be final.
6.7 Method of Collection
The assessments will be collected annually on the County’s secured property tax roll. The assessments will be subject to the County’s assigned due dates and late penalties. However, the City may choose to collect the assessments in an alternate manner (including directly billing the property owner) as may be deemed appropriate or necessary by the City.
City of Palmdale
Annexation and Annual Levy Report – Streetlight Maintenance Assessment District No. 1, Annexation 2022-203 18
8. ASSESSMENT DIAGRAM
The following pages contains the legal description and assessment diagram for the Annexation.
Source: Los Angeles County GIS
Geographic Coordinate Reference: GCS North American 1983 Projection: NAD 1983 StatePlane California V FIPS 0405 Feet Sheet 1 of 1
V I C I N I T Y
M A P
V I C I N I T Y
M A P
CITY OF PALMDALE
COUNTY OF LOS ANGELES
STATE OF CALIFORNIA
ASSESSMENT DIAGRAM
STREETLIGHT MAINTENANCE ASSESSMENT DISTRICT NO. 1, ANNEXATION 2022-203
FILED IN THE OFFICE OF THE CITY CLERK OF THE CITY OF PALMDALE, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, THIS ____ DAY OF _________, 2022.
________________________________________
CITY CLERK
CITY OF PALMDALE
COUNTY OF LOS ANGELES
RECORDED IN THE OFFICE OF THE SUPERINTENDENT OF STREETS OF THE CITY OF PALMDALE ON THE LOTS, PIECES AND PARCELS OF LAND ON THIS ASSESSMENT DIAGRAM ON THE ____ DAY OF _________, 2022. ________________________________________
SUPERINTENDENT OF STREETS
CITY OF PALMDALE
COUNTY OF LOS ANGELES
AN ASSESSMENT WAS LEVIED BY THE CITY COUNCIL OF THE CITY OF PALMDALE ON THE LOTS, PIECES, AND PARCELS OF LAND SHOWN ON THIS ASSESSMENT DIAGRAM. THE ASSESSMENT WAS LEVIED ON THE ____ DAY OF _________, 2022; THE ASSESSMENT DIAGRAM AND ASSESSMENT ROLL WERE RECORDED IN THE OFFICE OF THE SUPERINTENDENT OF STREETS OF THAT CITY ON THE ____ DAY OF _________, 20__. REFERENCE IS MADE TO THE
ASSESSMENT ROLL RECORDED IN THE OFFICE OF THE SUPERINTENDENT OF STREETS FOR THE EXACT AMOUNT OF EACH ASSESSMENT LEVIED AGAINST EACH PARCEL OF LAND SHOWN ON THIS ASSESSMENT DIAGRAM. ________________________________________
CITY CLERK
CITY OF PALMDALE
COUNTY OF LOS ANGELES
FILED THIS ____ DAY OF _________, 20__, AT THE HOUR OF __ O’CLOCK _M, IN BOOK ________ OF MAPS OF ASSESSMENT AND COMMUNITY FACILITIES DISTRICTS AT PAGE ________, IN THE OFFICE OF THE COUNTY RECORDER IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA. ____________________________
COUNTY RECORDER
COUNTY OF LOS ANGELES
FOR PARTICULARS OF THE LINES AND DIMENSIONS OF ASSESSOR PARCELS, REFERENCE IS MADE TO THE MAPS OF THE ASSESSOR, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA.
Fort Tejon Rd
State Route 138
Pearblossom Hwy
Southern Pacific RR
55th St E
53rd St E
52nd St E
Falling Star Pl
Spyglass Dr
Nightsky Pl
Fieldglass Ct
Annexation - Parcel 2 State Route 138
Pearblossom Hwy
Southern Pacific RR
Fort Tejon Rd
50th St E
55th St E
47th St E
52nd St E
E Avenue T
60th St E
E Avenue S-8
Cheseboro Rd
E Avenue T-4
56th St E
53rd St E
E Avenue T-5
47th St E 50th St E
53rd St E
Pearblossom Hwy
55th St E
Southern Pacific RR
50th St E
0 175 35087.5 Feet
O
Annexation Boundary
APN 3051-021-022
Parcels
Annexation Boundary
3051-021-022
1 ID APN
1 3051-051-022,
only the portion of which is
Parcel 2 on Tract Map 83189.
City of Palmdale
Annexation and Annual Levy Report – Streetlight Maintenance Assessment District No. 1, Annexation 2022-203 19
9. ASSESSMENT ROLL
City of Palmdale
Streetlight Maintenance Assessment District No. 1, Annexation 2022-203 Fiscal Year 2022/23 Proposed Maximum Assessment
ID Assessor's Parcel Number
Fiscal Year 2022/23
Proposed Maximum
Assessment
1 3051-021-022, only the portion identified as Parc el 2 on Tract Map 83189 $7,344.92
City of Palmdale
Annexation and Annual Levy Report – Streetlight Maintenance Assessment District No. 1, Annexation 2022-203 20
10. REFERENCES
i Golden Hill Neighborhood Assn. v. City of San Diego CA4/1, D062203 (Cal. Ct. App. 2013) ii Beutz v. County of Riverside , 109 Cal. Rptr. 3d 851 (Cal. Ct. App. 2010) iii Bonander v. Town of Tiburon, 147 Cal. App. 4th 1116 (Cal. Ct. App. 2007) iv Manteca Unified School District v. Reclamation District No. 17 et al , C077906 (Cal. Ct. App. 2017) v City of Palmdale. General Plan Circulation Element, January 25, 1993.
vi
U.S Department of Transportation. Federal Highway Administration. (2001). Designing Sidewalks and Trails for Access, Part II of II: Best Practices Design Guide. Retrieved from http://www.fhwa. dot. gov/ environment/bicycle_pedestrian/publications/sidewalk2/
vii Pucher, J., Buehler R., Meron, F., and Bauman, A. American Journals of Public Health, Supplement 1, Vol 101, No S1 (2011). Walking and Cycling in the United States, 2001-2009: Evidence from the National Household Travel Surveys. Retrieved from http://www.ncbi.nlm.nih.gov/pubmed/21551387 City Council Staff Report
DATE: May 4, 2022
TO: HONORABLE MAYOR AND CITY COUNCIL
FROM: NEIGHBORHOOD SERVICES
HOUSING DIVISION
DISTRICT: ALL
SUBJECT: PUBLIC HEARING TO HEAR PUBLIC COMMENTS ON THE DRAFT 2022-2023 ACTION PLAN AND PROPOSED EXPENDITURE OF
ESTIMATED $1,850,000 IN CONSOLIDATED PLAN FUNDS;
REVIEW, APPROVE, AND SUBMIT THE 202 2-2023 ACTION PLAN;
AND EXECUTE DOCUMENTS RELATED TO THE SUBMISSION OF
THE ACTION PLAN , AND AGREEMENTS FOR SUB-RECIPIENTS
AND THE FAIR HOUSING PROVIDER.
ISSUE
Public Hearing to hear public comments on the Draft 202 2-2023 Action Plan and proposed expenditure of Consolidated Plan funds; Review and approve the 2022-2023 Action Plan; and Authorize the City Manager or their designee to make necessary changes and submit the 202 2-2023 Action Plan, execute documents related to the submission of the Action Plan and agreements for Sub-Recipients and the Fair Housing Provider.
RECOMMENDATION
Staff recommends that the City Council:
1. Open a public hearing to receive public comments on the Draft 2022-2023 Action Plan and the proposed expenditure of Community Development Block Grant (CDBG) and HOME Investment Partnerships (HOME) funds in compliance with the requirements of the U.S. Departmen t of Housing and Urban Development (HUD) and the City’s Citizen Participation Plan;
2. Direct staff to incorporate the public comments into the Draft 2022-2023 Action Plan;
3. Review and approve the 2022-2023 Action Plan; and
4. Authorize the City Manager or their designee to make necessary changes and submit the 2022-2023 Action Plan, execute documents related to the submission of the Action Plan and agreements for Sub -Recipients and the Fair Housing Provider.
Report to Mayor and City Council
Re: Public Hearing Draft 2022-2023 Action Plan
May 4, 2022