DIR Project Registration # _ _ _ _ _ _
ENGIE Services Project #: CN-001338
ENGIE Services Contract # R 3566
ENERGY SERVICES CONTRACT
This ENERGY SERVICES CONTRACT (this “Contract”) is made and entered into as of December 3, 2024 (the “Contract Effective Date”) by and between ENGIE Services U.S. Inc., a Delaware corporation, with California State Contractor’s License Number 995037 (“ENGIE Services U.S.”), and City of Salinas, a California charter city and municipal corporation (“City” and together with ENGIE Services U.S. the “Parties” and each of City and ENGIE Services U.S. a “Party”).
CONTRACT RECITALS
WHEREAS, City owns and/or operates certain public facilities specifically described in Attachment A I(the “Facilities”) and City wishes to reduce the Facilities’ energy consumption and costs and improve the Facilities’ energy quality and reliability; and WHEREAS, ENGIE Services U.S. is a full-service energy services company with the technical capabilities to provide services to City including identifying supply-side and/or demand-side energy conservation measures (“ECMs”), engineering, procurement, construction management, installation, construction and training; and WHEREAS, ENGIE Services U.S. has identified potential energy and operational savings opportunities at City’s Facilities and estimated program costs to implement the ECMs and presented an overall potential energy cost and consumption savings for implementing the ECMs; and WHEREAS, pursuant to California Government Code §4217.12, City held a regularly scheduled public hearing on November 19, 2024, of which two weeks advance public notice was given regarding this Contract and its subject matter, and WHEREAS, City has determined that the anticipated cost to City to implement the ECMs will be less than the anticipated cost to City for thermal, electrical, and other energy, together with anticipated operational, maintenance and other costs, that would have been consumed by City in the absence of the ECMs in compliance with California Government Code §§4217.10 through 4217.18; and WHEREAS, City has determined that entering into this energy services contract to implement the ECMs is in the best interests of City and that California Government Code §4217.10 et seq. allows City to enter into this Contract; and WHEREAS, by adoption of Resolution No. ________ at the above-referenced meeting, City approved this Contract and authorized its execution.
NOW, THEREFORE, City and ENGIE Services U.S. hereby agree as follows:
DEFINITIONS
For purposes of this Contract and its Attachments, defined terms will have the following meanings:
“Abnormally Severe Weather Conditions” means typhoons, hurricanes, tornadoes, lightning storms and other climatic and weather conditions that are abnormally severe for the period of time when, and the area where, such storms or conditions occur, in each case occurring at a property, the access roads to a property, or any other location where Work or Professional Services are then being performed. The term “Abnormally Severe Weather Conditions” specifically includes rain, snow or sleet in excess of one hundred fifty percent (150%) of the median level over the preceding ten (10) year period for the local geographic area and time of year in which such rain, snow or sleet accumulates. “Act” is defined in ARTICLE 14.
“Affiliate” means any Person that directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with the Person specified. For purposes of this definition, control of a Person means the power, direct or indirect, to direct or cause the direction of the management and policies of such Person whether by contract or otherwise; ownership of fifty percent (50%) or more of the voting securities of another Person creates a rebuttable presumption that such Person controls such other Person. “Applicable Law” means any statute, law, treaty, building code, rule, regulation, ordinance, code, enactment, injunction, writ, order, decision, authorization, judgment, decree, protocol, procedure or other legal or regulatory determination or restriction by a court or Governmental Authority of competent jurisdiction, as may be in effect at the time the Work or Professional Services are undertaken. “Applicable Permits” means all permits, approvals, inspections and certifications required to be issued by any Governmental Authority in connection with the Professional Services or the building, installation and start-up of the Work as of the Contract Effective Date. “Application for Payment” means a monthly progress payment as described in Section 8.01 or an invoice for materials stored off-site as described in Section 8.02. “Arbitral Panel” is defined in Section 19.04(ii).
“Arbitration Rules” is defined in Section 19.04(ii).
“Attachment” means the following attachments to this Contract, each of which is an “Attachment:” Attachment A
City’s Facilities and Existing Equipment
Attachment B
Not used
Attachment C
Scope of Work
Attachment D
Scope of Monitoring Installation
Attachment E
M&V Services
Attachment F
Maintenance Services
“Beneficial Use” means when major new equipment and systems included in the Scope of Work are properly installed, inspected, operational, and are capable of being used for their intended purpose. Criteria for Beneficial Use of equipment / systems will be established as defined in Attachment C. “Business Day” means any calendar day other than a Saturday, a Sunday or a calendar day on which banking institutions in San Francisco, California, are authorized or obligated by law or executive order to be closed. “CEQA” means the California Environmental Quality Act, codified at California Public Resource Code § 21000 et seq., and the applicable state and local guidelines promulgated thereunder. “Certificate of Beneficial Use” means the certificate, issued by ENGIE Services U.S. to City and subcontractor(s), which identifies when City took Beneficial Use of the Work or any portion thereof. A Certificate of Beneficial Use may be executed for an individual subcontract, a specific building, a portion of the Work, or the entire Work. “Certificate of Final Completion” means the certificate issued by ENGIE Services U.S. to City, in accordance with Section 6.03. A Certificate of Final Completion may be executed for an individual subcontract, a specific building, a portion of the Work, or the entire Work. “Certificate of Substantial Completion” means the certificate issued by ENGIE Services U.S. to City, in accordance with Section 6.02. A Certificate of Substantial Completion may be executed for an individual subcontract, a specific building, a portion of the Work, or the entire Work. “Change” means any addition to, deletion from, suspension of, or other modification to the quality, function, or intent of the Work or Professional Services. “Change in Law” means any of the following events or circumstances occurring after the Contract Effective Date: (i) an amendment, modification, interpretation, construction, enforcement standard, supplement or other change in or repeal of an existing Applicable Law; or (ii) an enactment or making of a new Applicable Law (excluding a change in any income or franchise tax law, worker’s compensation, payroll or withholding tax law, but including any change in law imposing new or additional tariffs or import duties). “Change Order” means a written document, signed by both ENGIE Services U.S. and City, authorizing ENGIE Services U.S. to perform a Change. The Change Order modifies the Scope of Work and should identify: (i) the applicable Change; (ii) any additional compensation to be paid to ENGIE Services U.S. to perform such Change; and (iii) any extension of time to complete the Project. “Construction” means any and all Work to be performed that involves construction, alteration, repair, installation or removal of equipment, addition to, subtraction from, improving, moving, wrecking or demolishing any building, parking facility, excavation, or other structure or improvement, or any part thereof. “Construction Documents” means the final designs, drawings, specifications and submittals that are used for Construction, and any Change Orders affecting those documents, that describe the technical requirements for the installation of all the materials and equipment pursuant to this Contract. “Construction Period” means the period beginning with the first day of the month in which material or equipment is first installed at the Facilities and continuing until the M&V Commencement Date. “Contract” is defined in the Preamble, and includes all Attachments hereto (all of which are incorporated herein by this reference), as well as all Change Orders, amendments, restatements, supplements and other modifications hereto. “Contract Amount” means Four Million Seven Hundred Seventy-Four Thousand Twenty-Five Dollars ($4,774,025.00), which is inclusive of the mobilization payment, as set forth in Section 8.01, but exclusive of any fees for Professional Services. “Contract Bonds” is defined in Section 12.02.
“Contract Effective Date” is defined in the Preamble.
“City” is defined in the Preamble.
“City Persons” means City, its agents, employees, subcontractors, architects, general contractors, lease/leaseback contractors or other Persons acting on behalf of City or for whom City is responsible. “Delay” means any circumstances involving delay, disruption, hindrance or interference affecting the time of performance of the Work or the Professional Services. “Dispute” is defined in Section 19.02.
“DOE Guidelines” is defined in Section 13.01.
“ECM” is defined in the Recitals.
“EMS” means an energy management system.
“Energy Delivery Point” means, for each Generating Facility, the point at which Utility meter energy is being delivered, as designated in the Interconnection Agreement. “Energy Usage Data” is defined in Section 2.05.
“ENGIE Services U.S.” is defined in the Preamble.
“ENGIE Services U.S. Warranty” is defined in Section 9.01. “Event of Default” is defined in ARTICLE 16.
“Excusable Event” means an act, event, occurrence, condition or cause beyond the control of ENGIE Services U.S., including, but not limited to, the following: (i) any act or failure to act of, or other Delay caused by any City Person; (ii) the failure to obtain, or delay in obtaining, any Interconnection Agreement, Applicable Permit, or approval of a Governmental Authority (including due to failure to make timely inspection), or Delays caused by Changes and/or modifications to the Scope of Work required by a Governmental Authority, other than a failure caused by the action or inaction of ENGIE Services U.S.; (iii) changes in the design, scope or schedule of the Work required by any Governmental Authority or City Person; (iv) undisclosed or unforeseen conditions encountered at the Project Location, including discovery or existence of Hazardous Substances; (v) the failure to obtain, or delay in obtaining, approval of any Governmental Authority for design and installation of any portion of the Work, including any further or subsequent approval required with respect to any Change, other than a failure caused by the action or inaction of ENGIE Services U.S.; (vi) information provided to ENGIE Services U.S. by any City Person or Utility is later found to be inaccurate or incomplete; (vii) any Change in Law; (viii) Delay caused by pending arbitration; (ix) acts of God; (x) acts of the public enemy or terrorist acts; (xi) relocation or construction of transmission facilities or the shutdown of such facilities for the purpose of necessary repairs; (xii) work by Utility; (xiii) flood, earthquake, tornado, storm, fire, explosions, lightning, landslide or similar cataclysmic occurrence; (xiv) sabotage, vandalism, riots or civil disobedience; (xv) labor disputes or strikes; (xvi) labor or material shortages; delay in manufacturing and deliveries of equipment; supply chain disruptions; material price increases that equal or exceed fifteen percent (15%) in a six (6) month period; (xvii) Abnormally Severe Weather Conditions; (xviii) an annual level of direct beam solar resource availability that is less than or equal to 90% of historical averages as measured by long-term weather data (minimum 5 years) collected at the applicable Facility and/or other reliable calibrated and appropriate weather station representative of such Facility; (xix) requirement by Utility that any Generating Facility discontinue operation; (xx) any action by a Governmental Authority that prevents or inhibits the Parties from carrying out their respective obligations under this Contract (including an unstayed order of a court or administrative agency having the effect of subjecting the sales of energy output to federal or state regulation of prices and/or services); (xxi) any Utility power outage at a Facility; or (xxii) regional epidemic or global pandemic. “Facilities” is defined in the Recitals.
“Final Completion” means the stage in the progress of the Work at which the Construction Work as identified in the Scope of Work, or a designated portion thereof, has been completed and commissioned, including completion of all Punch List items, completion of all required training, and delivery to City of the final documentation (as-built drawings, operation and maintenance manuals, warranty documentation and final submittals). “Generating Facility” means each of the photovoltaic, solar powered generating facilities located at the sites listed in Attachment E, and includes all associated photovoltaic panels, mounting assemblies, inverters, converters, metering, lighting fixtures, transformers, ballasts, disconnects, combiners, switches, wires and other equipment that may be necessary to connect the Generating Facility to the applicable Energy Delivery Point. “Governmental Authority” means any federal, state, regional, town, county, city, municipal or local government agency, department or regulatory body having jurisdiction under Applicable Law over the matter in question. “Greenhouse Gas” is defined in Section 13.01.
“Hazardous Substances” means (i) any hazardous, toxic, or dangerous wastes, substances, chemicals, constituents, contaminants, pollutants, and materials and any other carcinogenic, liquids, corrosive, ignitable, radioactive, reactive, toxic, or otherwise hazardous substances or mixtures (whether solids, liquids, gases) now or at any time subject to regulation, control, remediation, or otherwise addressed under Applicable Laws; (ii) any “hazardous substance” as defined by the Resource, Conservation and Recovery Act of 1976 (42 U.S.C. §6901 et seq.), as amended, and regulations promulgated thereunder; (iii) any “hazardous, toxic or dangerous waste, substance or material” specifically defined as such in 42 U.S.C. §9601 et seq.), as amended and regulations promulgated thereunder; and (iv) any hazardous, toxic or dangerous waste, substance, or material as defined in any so-called “superfund” or “superlien” law. “Incentive Funds” is defined in Section 8.06.
“Installation” means the setting up, construction, and placement of any equipment or materials in the manner it will be operated, in accordance with the Scope of Work and in accordance with all Applicable Laws. “Instruments of Service” is defined in Section 10.01(c). “Interconnection Agreement” means the Interconnection Agreement to be entered into between City and the Utility with respect to the Generating Facilities. “Interconnection Facilities” is defined in Section 18.02. “Interest” means interest calculated at the lesser of (i) the prime rate plus two percent (2%) or (ii) the maximum rate permitted by Applicable Law. The “prime rate” will be the “Prime Rate” of interest per annum for domestic banks as published in The Wall Street Journal in the “Money Rates” section. “Losses” is defined in Section 11.01.
“M&V Commencement Date” means the first day of the month immediately following the later of (i) ENGIE Services U.S.’s receipt of the fully signed Certificate of Final Completion, and (ii) ENGIE Services U.S.’s receipt of the full Contract Amount. “M&V Services” (if any) are defined in Attachment E.
“Maintenance Services” (if any) are defined in Attachment F. “Measurement Period” means each one-year period following the M&V Commencement Date. “NEC” means the National Electric Code.
“Notice to Proceed” is defined in Section 2.04.
“Party” and “Parties” are defined in the Preamble.
“Person” means any natural person, corporation, general partnership, limited partnership, limited liability company, proprietorship, other business organization, trust, union, association or Governmental Authority. “Professional Services” means professional services (such as Maintenance Services and M&V Services, if any) provided by ENGIE Services U.S. to City under this Contract. “Project” means the entirety of Work to be performed by ENGIE Services U.S. pursuant to the Scope of Work, and any Change Orders. “Project Location” means the area or areas where the Project materials and equipment and any other energy related equipment, as described in the Scope of Work, are installed, and the general area where the Work is performed. “Punch List” means, with respect to any portion of the Work, a list of minor corrective items which need to be completed or corrected in order to complete such portion of the Work, but do not impair City’s ability to beneficially operate and utilize such portion of the Work. “Retained Items” is defined in Section 10.02.
“Retention” is defined in Section 8.03.
“Schedule of Values” is defined in Section 8.01.
“Scope of Work” means the Work set forth in Attachments C and D, as modified by any Change Order. “Substantial Completion” means the stage in the progress of the Work at which the Work, or a designated portion thereof, is sufficiently complete, in conformance with the Scope of Work, the Construction Documents and any Change Orders, so that City can take Beneficial Use thereof. “Surety” means the surety supplying the Contract Bonds, which must be an “admitted surety insurer,” as defined by California Code of Civil Procedure §995.120, authorized to do business in the State of California, and reasonably satisfactory to City. “Utility” is defined in Section 18.02.
“Work” means the Work to be done by ENGIE Services U.S. pursuant to the Scope of Work, subject to any Change Orders.
TERM; PERFORMANCE OF THE WORK
Contract Term. The term of this Contract commences on the Contract Effective Date and ends on the last day on which Professional Services are provided, which end date shall be memorialized in writing acknowledged by City and ENGIE Services U.S., unless terminated earlier as provided in this Contract.
Performance of Work. The Work and Professional Services to be performed hereunder will be provided in accordance with the terms of this Contract and the applicable standard of care. ENGIE Services U.S. will perform its obligations under this Contract (i) using the degree of skill and care that is required by current, good and sound professional procedures and practices, and (ii) in conformance with (x) generally accepted professional standards prevailing at the time the Work is performed, (y) the covenants, terms and conditions of this Contract, and (z) applicable laws, codes, rules and regulations, including, without limitation, the applicable provisions of the California Building Code. ENGIE Services U.S. represents and warrants that it is fully experienced in projects of the nature and scope of the Work and Professional Services, and that it is properly qualified, licensed and equipped to supply and perform the Work and Professional Services. The Work completed herein will be subject to City’s general right of inspection and supervision to secure the satisfactory completion thereof in accordance with this Contract.
Scope of Work.
The Scope of Work may not exceed that set forth in Attachments C and D, except pursuant to a Change Order.
The Professional Services may not exceed those set forth in Attachments E, F and G, except pursuant to a Change Order.
Notice to Proceed. Within ten (10) Business Days after City has closed the financing referenced in Section 2.07, City will issue to ENGIE Services U.S. a written Notice to Proceed (“Notice to Proceed”). ENGIE Services U.S. will begin Work within thirty (30) calendar days after ENGIE Services U.S.’s receipt of the Notice to Proceed. If City fails to issue the Notice to Proceed within twenty (20) calendar days after the financing has closed, ENGIE Services U.S. will be entitled to an equitable extension of time and/or an equitable adjustment in the Contract Amount as a result of such delay.
Project Schedule. After receipt of the Notice to Proceed, ENGIE Services U.S. will develop, with input from City, a master project schedule using Microsoft Project®. City will have ten (10) Business Days following receipt of the project schedule to provide input. ENGIE Services U.S. will establish a weekly construction meeting at which time the Work of the previous week will be reviewed and a two-week look ahead will be coordinated. The project schedule will be updated monthly.
City’s Energy and Operational Records and Data. If ENGIE Services U.S. requests, City will provide to ENGIE Services U.S., within thirty (30) calendar days after such request, City’s Energy Usage Data for the twelve (12) months preceding the Contract Effective Date, and will make commercially reasonable efforts to provide the Energy Usage Data for the thirty-six (36) months preceding the Contract Effective Date. “Energy Usage Data” means all of City’s records and complete data concerning energy usage, energy-related maintenance, and other related costs for the Facilities, and including, without limitation, utility records; occupancy information; descriptions of any past, present or anticipated changes in a building’s structure or its heating, cooling, lighting or other systems or energy requirements; descriptions of all energy consuming or saving equipment used in the Facilities; applicable building drawings, specifications, existing AutoCAD files, operation and maintenance manuals, and as-builts; bills and records relating to operation and maintenance of systems and equipment within the Facilities, and a description of operation and management procedures currently utilized. City agrees that ENGIE Services U.S. may rely on the foregoing data as being accurate in all respects. If ENGIE Services U.S. requests, City will also provide to ENGIE Services U.S., within thirty (30) calendar days after such request, any prior energy audits of the Facilities, and copies of City’s financial statements and records related to energy usage and operational costs for said time period at the Facilities, and will authorize its agents and employees to provide and freely discuss such records and to make themselves available for consultations and discussions with authorized representatives, employees, subcontractors, and agents of ENGIE Services U.S.
Finance Contingency. It is acknowledged and agreed by the Parties that the continued existence of this Contract is expressly contingent upon City closing financing that will allow it to make the payments to ENGIE Services U.S. required by this Contract. City will have thirty (30) calendar days after the Contract Effective Date to close such financing. If the financing is not closed within this time, for any reason, either Party may by written notice to the other Party declare this Contract to be null and void; and the Contract will be null and void as of the other Party’s receipt of this notice; provided that City may not declare this Contract to be null and void after it has issued the Notice to Proceed. It is acknowledged and agreed that ENGIE Services U.S. will have no obligation to commence performance of the Work unless and until the financing has been closed.
Proof of Financial Arrangements. Prior to the commencement of the Work, City will provide ENGIE Services U.S. proof that financial arrangements have been made to fulfill City’s obligations under this Contract. City’s requirement to furnish such proof to ENGIE Services U.S. is a condition precedent to commencement of the Work. After commencement of the Work, ENGIE Services U.S. may request such proof if (i) City fails to make payments to ENGIE Services U.S. as this Contract requires; (ii) a Change in the Work materially changes the Contract Amount; or (iii) ENGIE Services U.S. has other reasonable concerns regarding City’s ability to fulfill its payment obligations under this Contract when due. City will furnish such proof as a condition precedent to commencement or continuation of the Work or the portion of the Work affected by a material change. After City furnishes any such proof, City will not materially vary such financial arrangements without prior consent of ENGIE Services U.S. If City fails to provide ENGIE Services U.S. with such proof within ten (10) Business Days of receiving a demand from ENGIE Services U.S., ENGIE Services U.S. will be entitled to suspend its performance under this Contract until such proof is received.
PROJECT IMPLEMENTATION - GENERAL
Registrations, Permits and Approvals.
Prior to issuing the Notice to Proceed, City must register the Project with the California Department of Industrial Relations, using Form PWC100.
ENGIE Services U.S. is responsible for obtaining (but not paying for) all Applicable Permits required under this Contract. City will cooperate fully with and assist ENGIE Services U.S. in obtaining Applicable Permits.
City is responsible for paying for all permit fees (including expedited plan check fees), inspections, and certifications costs, including any additional work that may be required by the Authority(ies) Having Jurisdiction as part of the permitting process.
City is responsible for hiring and paying for all inspectors, site testing (including geotechnical observations) and laboratory testing.
City is responsible for paying for all utility interconnection(s) costs, including any additional work that may be required by the Utility(ies) as part of the Interconnection Agreement(s).
City is responsible for obtaining and paying for any annual operating permits and approvals or exemptions required by CEQA, as applicable.
Coordination. City will be responsible for coordinating the activities of ENGIE Services U.S. and ENGIE Services U.S.’s subcontractors and suppliers with those of City Persons.
Project Meetings/Status Updates. During the course of the Work, ENGIE Services U.S. will periodically meet with City to report on the general status and progress of the Work.
Project Location Access. City hereby grants to ENGIE Services U.S., without cost to ENGIE Services U.S., all rights of ingress and egress at the Project Location, necessary for ENGIE Services U.S. to perform the Work and provide all services contemplated by this Contract. ENGIE Services U.S. will provide forty-eight-hour advance notice to City for access to any City Facilities. All persons entering the Project Location, including City and its employees and agents, must follow ENGIE Services U.S.’s safety procedures. ENGIE Services U.S. may (but is not required to) make transportation available to City and City’s employees and agents between and within Project Locations, which if offered will be deemed part of the Scope of Work and included in the Contract Amount.
Consents; Cooperation. Whenever a Party’s consent, approval, satisfaction, or determination will be required or permitted under this Contract, and this Contract does not expressly state that the Party may act in its sole discretion, such consent, approval, satisfaction, or determination will not be unreasonably withheld, qualified, conditioned, or delayed, whether or not such a “reasonableness” standard is expressly stated in this Contract. Whenever a Party’s cooperation is required for the other Party to carry out its obligations hereunder, each Party agrees that it will act in good faith and reasonably in so cooperating with the other Party or its designated representatives or assignees or subcontractors. Each Party will furnish decisions, information, and approvals required by this Contract in a timely manner so as not to delay the other Party’s performance under this Contract.
Independent Contractor. The Parties hereto agree that ENGIE Services U.S., and any agents and employees of ENGIE Services U.S., its subcontractors and/or consultants, is acting in an independent capacity in the performance of this Contract, and not as a public official, officer, employee, consultant, or agent of City for purposes of conflict of interest laws or any other Applicable Law.
FINAL DESIGN PHASE – CONSTRUCTION DOCUMENTS / EQUIPMENT PROCUREMENT General Provisions.
After receipt of the Notice to Proceed, ENGIE Services U.S. will proceed with the preparation of any necessary designs, drawings, and specifications related to the Scope of Work.
After completion of the design phase and approval of the final plans and specifications by City, ENGIE Services U.S. will order the equipment identified in the Scope of Work, and any other necessary materials and supplies in order to meet the project schedule.
City will designate a single-point representative with whom ENGIE Services U.S. may consult on a reasonable, regular basis and who is authorized to act on City’s behalf with respect to the Project design. City’s representative will render decisions in a timely manner with regard to any documents submitted by ENGIE Services U.S. and to other requests made by ENGIE Services U.S. in order to avoid delay in the orderly and sequential progress of ENGIE Services U.S.’s design services.
Within ten (10) Business Days after ENGIE Services U.S.’s request, City will:
furnish all surveys or other information in City’s possession that describe the physical characteristics, legal limitations, and utility locations in and around the Project Location; disclose any prior environmental review documentation and all information in its possession concerning subsurface conditions, including without limitation the existence of any known Hazardous Substances, in or around the general area of the Project Location; supply ENGIE Services U.S. with all relevant information in City’s possession, including any as-built drawings and photographs, of prior construction undertaken at the Project Location; obtain 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 Project Location for the execution of the Work; and obtain any and all title reports for those Project Locations reasonably requested by ENGIE Services U.S.
All information furnished pursuant to this Section 4.01 will be supplied at City’s expense, and ENGIE Services U.S. will be entitled to rely upon the accuracy and completeness of all information provided. If ENGIE Services U.S. is adversely affected by any failure to provide, or delay in providing, the information specified in Section 4.01(d), ENGIE Services U.S. will be entitled to an equitable extension of time and/or an equitable adjustment in the Contract Amount.
If any information disclosed under this Section 4.01 gives rise to a Change to the Work or an Excusable Event, ENGIE Services U.S. will notify City. The Parties will meet and confer with respect to those Changes, and ENGIE Services U.S. will be entitled to an equitable extension of time and/or an equitable adjustment in the Contract Amount. If the Parties, however, are unable to agree on whether City’s disclosed information gives rise to a Change to the Work or an Excusable Event, those disputes are to be resolved in accordance with ARTICLE 19.
ENGIE Services U.S. contemplates that it will not encounter any Hazardous Substances at the Project Location, except as has been disclosed as a pre-existing condition by City prior to the Contract Effective Date. However, any disclosure of Hazardous Substances that will affect the performance of the Work after the Contract Effective Date will constitute a valid basis for a Change Order.
Review of Construction Documents. ENGIE Services U.S. will prepare and submit all drawings and specifications to City for review. City will review the documents and provide any comments in writing to ENGIE Services U.S. within ten (10) Business Days after receipt of the documents. ENGIE Services U.S. will incorporate appropriate City comments into the applicable drawings and specifications. ENGIE Services U.S. reserves the right to issue the drawings and specifications in phases to allow Construction to be performed in phases. If City fails to provide written comments within the ten (10) Business Day period, City will be deemed to have no comments regarding the documents.
Permits. The respective obligations of the Parties in obtaining inspections and permits are as specified in Section 3.01. City will agree to any nonmaterial changes to the designs, drawings, and specifications required by any Governmental Authority. The Contract Amount must be increased by any additional cost incurred by ENGIE Services U.S. due to a Change required by a Governmental Authority and the time required to complete the Work must be increased by the number of additional days required to complete the Work because of a Change imposed by a Governmental Authority.
Changes During Final Design Phase. If during the design phase any City Person requests Changes and/or modifications to the Work and/or an Excusable Event occurs, ENGIE Services U.S. will be entitled to an equitable extension of time and/or an equitable adjustment in the Contract Amount. Valid bases for additional compensation and/or time extension include, but are not limited to: (i) any City Person requests changes and/or modifications to the Project Scope of Work during the Project design phase; (ii) any City Person causes delays during ENGIE Services U.S.’s design work; (iii) the discovery of subsurface or other site conditions that were not reasonably anticipated or disclosed as of the Contract Effective Date; (iv) the discovery of Hazardous Substances at or impacting the Project Location; (v) changes to the Scope of Work required to obtain Applicable Permits; (vi) damage to any equipment or other Work installed by ENGIE Services U.S. caused by the act or omission of any City Person; (vii) changes and/or modifications to Scope of Work ordered by any Governmental Authority; and (viii) any other condition that would not reasonably have been anticipated by ENGIE Services U.S., that modifies and/or changes the Scope of Work, that increases the agreed-upon Contract Amount or increases the time needed to complete the Work.
CONSTRUCTION PHASE
General Provisions. Upon securing the requisite Applicable Permits pursuant to Section 3.01, and completion of Construction Documents, ENGIE Services U.S. will commence the construction of the Project in accordance with the Construction Documents. The construction will be performed in accordance with all Applicable Laws and Applicable Permits, by ENGIE Services U.S. and/or one or more licensed subcontractors qualified to perform the Work.
ENGIE Services U.S.’s Responsibilities during Construction Phase.
As an independent contractor to City, ENGIE Services U.S. will provide, or cause to be provided by its subcontractor(s), all labor, materials, equipment, tools, transportation, and other facilities and services necessary for the proper execution, construction, and completion of the Work. ENGIE Services U.S. will purchase in advance all necessary materials and supplies for the construction of the Project in order to assure the prompt and timely delivery of the completed Work pursuant to the project schedule. ENGIE Services U.S. will also be responsible for all means, methods, techniques, sequences, and procedures required by the Construction Documents.
ENGIE Services U.S. will make commercially reasonable efforts to coordinate construction activities and perform the Work to minimize disruption to City’s operations at the Project Location. ENGIE Services U.S. will provide at least fifteen (15) calendar days’ written notice to City of any planned power outages that will be necessary for the construction. ENGIE Services U.S. will cooperate with City in scheduling such outages, and City agrees to provide its reasonable approval of any scheduled outage.
ENGIE Services U.S. will initiate and maintain a safety program in connection with its Construction of the Project. ENGIE Services U.S. will take reasonable precautions for the safety of, and will provide reasonable protection to prevent damage, injury, or loss to: (i) employees of ENGIE Services U.S. and subcontractors performing Work under this Contract; (ii) ENGIE Services U.S.’s property and other materials to be incorporated into the Project, under the care, custody, and control of ENGIE Services U.S. or its subcontractors; and (iii) other property at or adjacent to the Project Location not designated for removal, relocation, or replacement during the course of construction. ENGIE Services U.S. will not be responsible for City’s employees’ safety unless ENGIE Services U.S.’s negligence in the performance of its Work is the proximate cause of the employee’s injury.
ENGIE Services U.S. will provide notice to City of scheduled test(s) of installed equipment, if any, and City and/or its designees will have the right to be present at any or all such tests conducted by ENGIE Services U.S., any subcontractor, and/or manufacturers of the equipment.
Pursuant to California Labor Code §6705, if the Work is a public work involving an estimated expenditure in excess of $25,000 and includes the excavation of any trench or trenches five (5) feet or more in depth, ENGIE Services U.S. will, in advance of excavation, submit to City and/or a registered civil or structural engineer, employed by City, to whom authority to accept has been delegated, a detailed plan showing the design of shoring, bracing, sloping, or other provisions to be made for worker protection from the hazard of caving ground during the excavation of such trench or trenches, which provisions will be no less effective than the current and applicable CAL-OSHA Construction Safety Orders. No excavation of such trench or trenches may be commenced until this detailed plan has been accepted by City or by the person to whom authority to accept has been delegated by City. Pursuant to California Labor Code §6705, nothing in this Section 5.02(e) imposes tort liability on City or any of its employees.
Pursuant to California Public Contract Code §7104, if the Work is a public work involving digging trenches or other excavations that extend deeper than four (4) feet below the surface of the ground:
ENGIE Services U.S. will promptly, and before the following conditions are disturbed, notify City, in writing, of any:
Material that ENGIE Services U.S. believes may be material that is hazardous waste, as defined in California Health and Safety Code §25117, that is required to be removed to a Class I, Class II, or Class III disposal site in accordance with provisions of existing law; Subsurface or latent physical conditions at the site differing from those indicated by information about the site made available to ENGIE Services U.S. before the Contract Effective Date; Unknown physical conditions at the site of any unusual nature, different materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in this Contract.
City will promptly investigate the conditions and, if it finds that the conditions do materially so differ or do involve hazardous waste, and cause a decrease or increase in ENGIE Services U.S.’s cost of, or the time required for, performance of any part of the Work will issue a Change Order under the procedures described in this Contract.
If a dispute arises between City and ENGIE Services U.S., whether the conditions materially differ, or involve hazardous waste, or cause a decrease or increase in ENGIE Services U.S.’s cost of, or time required for, performance of any part of the Work, ENGIE Services U.S. will not be excused from any scheduled completion date provided for by this Contract but will proceed with all Work to be performed under this Contract. ENGIE Services U.S. will retain any and all rights provided either by contract or by law which pertain to the resolution of disputes and protests between the Parties.
City’s Responsibilities during Construction Phase.
City will designate a single-point representative authorized to act on City’s behalf with respect to Project construction and/or equipment installation. City may from time to time change the designated representative and will provide written notice to ENGIE Services U.S. of such change. Any independent review of the construction will be undertaken at City’s sole expense, and will be performed in a timely manner so as to not unreasonably delay the orderly progress of ENGIE Services U.S.’s Work.
City will provide a temporary staging area for ENGIE Services U.S., or its subcontractors, to use during the construction phase to store and assemble equipment for completion of the Work, if needed. City will provide sufficient space at the Facilities for the performance of the Work and the storage, installation, and operation of any equipment and materials and will take reasonable steps to protect any such equipment and materials from harm, theft and misuse. City will provide access to the Facilities, including parking permits and identification tags, for ENGIE Services U.S. and subcontractors to perform the Work during regular business hours, or such other reasonable hours as may be requested by ENGIE Services U.S. and acceptable to City. City will also provide a readily available security escort to unlock and lock doors. City will not unreasonably restrict ENGIE Services U.S.’s access to Facilities to make emergency repairs or corrections as ENGIE Services U.S. may determine are needed.
City will maintain the portion of the Project Location that is not directly affected by ENGIE Services U.S.’s Work. City will keep the designated Project Location and staging area for the Project free of obstructions, waste, and materials within the control of City.
City will obtain any required environmental clearance from, and any inspections, including special inspections, or permits required by, any federal, state, and local jurisdictions, including but not limited to any clearances required under CEQA, prior to scheduled construction start date.
City will prepare the Project Location for construction, including, but not limited to, clearance of all above and below ground obstructions, such as vegetation, buildings, appurtenances, and utilities. Subsurface conditions and obstacles (buried pipe, utilities, etc.) that are not otherwise previously and accurately documented by City and such documentation made available to ENGIE Services U.S. are the responsibility of City. If ENGIE Services U.S. encounters such unforeseen conditions in the performance of the Work, ENGIE Services U.S. will be entitled to an equitable extension of time and/or an equitable adjustment in the Contract Amount.
City will remove any Hazardous Substances either known to City prior to the commencement of the Work or encountered by ENGIE Services U.S. during the construction of the Project, if necessary in order for the Work to progress safely, that were not knowingly released or brought to the site by ENGIE Services U.S. ENGIE Services U.S. will respond to the discovery of Hazardous Substances at or around the Project Location during the course of ENGIE Services U.S.’s construction in accordance with Section 5.06.
City will coordinate the Work to be performed by ENGIE Services U.S. with its own operations and with any other construction project that is ongoing at or around the Project Location, with the exception that ENGIE Services U.S. will coordinate the Interconnection Facilities work, if any, which will be performed by the local utility.
City will, and will cause City Persons to, allow ENGIE Services U.S. and its subcontractors access to and reasonable use of necessary quantities of City’s water and other utilities, including electrical power, as needed for the construction of the Work, at no cost to ENGIE Services U.S.
City will, and will cause City Persons to, provide ENGIE Services U.S. and/or its subcontractors with reasonable access to the Project Location to perform the Work, including without limitation and at no extra cost to ENGIE Services U.S., access to perform Work on Saturdays, Sundays, legal holidays, and non-regular working hours.
City will also do the following:
Attend the regularly scheduled progress meetings. Participate as needed regarding scheduling of the Work.
When requested by ENGIE Services U.S., participate in the job inspection walk-through with ENGIE Services U.S. to determine Substantial Completion or Beneficial Use of major equipment, and will sign the Certificate(s) of Substantial Completion.
Perform a final walk-through of the Project and, upon receipt of the operation and maintenance manuals and as-built drawings, sign the Certificate of Final Completion for the related Work.
Upon the completion of the entire Scope of Work listed in Attachment C, including training, if any, and submission of close-out documents, sign a Certificate of Final Completion for the entire Project.
Changes.
Change Orders Generally. Changes and/or modifications to the Scope of Work will be authorized by a written Change Order. The Change Order should state the change and/or modification to the Scope of Work, any additional compensation to be paid, and any applicable extension of time. ENGIE Services U.S. may, at its election, suspend performance of that portion of the Work affected by any proposed Change until a written Change Order with respect to the Changed or modified Work has been signed by both City and ENGIE Services U.S. ENGIE Services U.S. will use its reasonable efforts to continue other portions of the Work not affected or impacted by such proposed Change until such time as the applicable Change Order is resolved. In addition, if any City Person requests a proposal from ENGIE Services U.S. for a Change and City subsequently elects to not proceed with such Change, City agrees that a Change Order will be issued to reimburse ENGIE Services U.S. for any costs reasonably incurred for estimating services, design services, and/or preparation of the proposal requested by such City Person.
Change Orders Requiring Additional Compensation. If during construction any City Person requests changes and/or modifications to the Work, and/or there are Excusable Events, City will pay the extra costs caused by such modifications and/or changes and/or Excusable Event and ENGIE Services U.S. will be entitled to additional compensation for the following reasons, that include, but are not limited to: (i) any City Person requests changes and/or modifications to the Scope of Work during the construction phase of the Project; (ii) any City Person causes delays during ENGIE Services U.S.’s construction work; (iii) discovery of subsurface or other site conditions that were not reasonably anticipated or disclosed prior to the commencement of the Work; (iv) discovery of Hazardous Substances at or impacting the Project Location; (v) changes and/or modifications to the Scope of Work required to obtain required permits and approvals as required by any Governmental Authority; (vi) damage to any equipment or other Work installed by ENGIE Services U.S. caused by the act or omission of any City Person; (vii) changes and/or modifications to Scope of Work ordered by any Governmental Authority; and (viii) any other condition that would not reasonably have been anticipated by ENGIE Services U.S., that modifies and/or changes the Scope of Work or the Contract Amount.
Change Orders Requiring Additional Time. If during construction any City Person requests changes and/or modifications to the Scope of Work and/or an Excusable Event occurs, the Parties agree that an equitable extension of time to complete the Work may be necessary. Prior to any extension of time, ENGIE Services U.S. will use commercially reasonable efforts to make up such delays, including authorizing overtime payments; provided that City has issued a Change Order authorizing any such overtime payment and has specifically agreed to pay all costs, including administrative charges and expenses, associated therewith.
Method for Adjustment. An increase or decrease in the Contract Amount and/or time resulting from a Change in the Work and/or Excusable Event must be determined by one or more of the following methods:
unit prices set forth in this Contract or as subsequently agreed; a mutually accepted, itemized lump sum; or
costs calculated on a basis agreed upon by City and ENGIE Services U.S. plus a fee (either a lump sum or a fee based on a percentage of cost) to which the Parties agree.
Disagreements. If there is a disagreement between City and ENGIE Services U.S. as to whether ENGIE Services U.S. is entitled to an equitable extension of time and/or an equitable adjustment in the Contract Amount, those disputes are to be resolved in accordance with the provisions of ARTICLE 19. Pending the resolution of any such dispute, ENGIE Services U.S. may suspend Work.
Minor Changes to Scope of Work. ENGIE Services U.S. has the authority to make minor changes that do not change the total Contract Amount and are consistent with the intent of the Construction Documents, with prior notice to City. ENGIE Services U.S. will either promptly inform City, in writing, of any minor changes made during the implementation of the Project, or make available to City at the site a set of as-built drawings that will be kept current to show those minor changes.
Hazardous Substances.
ENGIE Services U.S. will promptly provide written notice to City if ENGIE Services U.S. observes any Hazardous Substance, as defined herein, at or around the Facilities during the course of construction or installation of any equipment which have not been addressed as part of the Scope of Work. ENGIE Services U.S. will have no obligation to investigate the Facilities for the presence of Hazardous Substances prior to commencement of the Work unless otherwise specified in the Scope of Work. City will be solely responsible for investigating Hazardous Substances and determining the appropriate removal and remediation measures with respect to the Hazardous Substances. City will comply with all Applicable Laws with respect to the identification, removal and proper disposal of any Hazardous Substances known or discovered at or around the Facilities, and in such connection will execute all generator manifests with respect thereto. ENGIE Services U.S. will comply with all Applicable Laws in connection with the use, handling, and disposal of any Hazardous Substances in the performance of its Work. In connection with the foregoing, City will provide ENGIE Services U.S., within ten (10) Business Days after the Contract Effective Date, a written statement that represents and warrants (i) whether or not, to its knowledge, there are Hazardous Substances either on or within the walls, ceiling or other structural components, or otherwise located in the Project Location, including, but not limited to, asbestos-containing materials; (ii) whether or not, to its knowledge, conditions or situations exist at the Facilities which are subject to special precautions or equipment required by federal, state, or local health or safety regulations; and (iii) whether or not, to its knowledge, there are unsafe working conditions at the Facilities.
City will indemnify, defend, and hold ENGIE Services U.S. harmless from and against any and all Losses that in any way result from, or arise under, such City owned or generated Hazardous Substances, except for liabilities to the extent due to the negligence or willful misconduct of ENGIE Services U.S., or its subcontractors, agents or representatives, in the handling, disturbance or release of Hazardous Substances. This indemnification will survive any termination of this Contract.
Pre-Existing Conditions. Certain pre-existing conditions may be present within the Facilities that (i) are non-compliant with applicable codes, (ii) may become non-compliant with applicable codes upon completion of ENGIE Services U.S.’s Work, (iii) may cause ENGIE Services U.S.’s completed Work to be non-compliant with applicable codes, (iv) may prevent City from realizing the full benefits of ENGIE Services U.S.’s Work, (v) may present a safety or equipment hazard, or (vi) are otherwise outside the scope of ENGIE Services U.S.’s Work. Regardless of whether or not such conditions may have been readily identifiable prior to the commencement of Work, ENGIE Services U.S. will not be responsible for repairing such pre-existing conditions unless such responsibility is expressly provided for in the Scope of Work or an approved Change Order. ENGIE Services U.S., in its sole discretion, may determine whether it will bring said pre-existing conditions into compliance by agreeing to execute a Change Order with City for additional compensation and, if appropriate, an extension of time.
PROJECT COMPLETION
Occupancy or Use of Work. City may take occupancy or use of any completed or partially completed portion of the Work at any stage, whether or not such portion is Substantially Complete, provided that such occupancy or use is authorized by Governmental Authority and, provided further, that City assumes responsibility for the security of, insurance coverage for, maintenance, utilities for, and damage to or destruction of such portion of the Work. If Substantial Completion of a portion of the Construction Work is not yet achieved, occupancy or use of such portion of the Work will not commence until City’s insurance company has consented to such occupancy or use. When occupancy or use of a portion of the Work occurs before Substantial Completion of such portion, City and ENGIE Services U.S. will accept in writing the responsibilities assigned to each of them for title to materials and equipment, payments and Retention with respect to such portion.
Substantial Completion. When ENGIE Services U.S. considers the Work, or any portion thereof, to be Substantially Complete, ENGIE Services U.S. will supply to City a written Certificate of Substantial Completion with respect to such portion of the Work, including a Punch List of items and the time for their completion or correction. City will within ten (10) Business Days of receipt of the Certificate of Substantial Completion, review such portion of the Work for the sole purpose of determining that it is Substantially Complete, and sign and return the Certificate of Substantial Completion to ENGIE Services U.S. acknowledging and agreeing: (i) that such portion of the Work is Substantially Complete; (ii) the date of such Substantial Completion; (iii) that from the date of Substantial Completion City will assume responsibility for the security of, insurance coverage for, maintenance, utilities for, and damage to or destruction of such portion of the Work. City agrees that approval of a Certificate of Substantial Completion will not be unreasonably withheld, delayed or conditioned.
Final Completion. When ENGIE Services U.S. considers the entirety of the Work to be Finally Complete, ENGIE Services U.S. will notify City that the Work is fully complete and ready for final inspection. City will inspect the Work to verify the status of Final Completion within ten (10) Business Days after its receipt of ENGIE Services U.S.’s certification that the Work is complete. If City does not verify the Final Completion of the Work within this period, the Work will be deemed fully completed. When City agrees that the Work is fully completed, ENGIE Services U.S. will issue a Certificate of Final Completion, which City must sign. City agrees that its signing of the Certificate of Final Completion will not be unreasonably withheld, delayed or conditioned. At that time, City will pay ENGIE Services U.S. any remaining Contract Amount due and any outstanding Retention being withheld by City, in accordance with Section 8.03. City may give ENGIE Services U.S. written notice of acceptance of the Work and will promptly record a notice of completion or notice of acceptance in the office of the county recorder in accordance with California Civil Code §9204.
Transfer of Title; Risk of Loss. Title to all or a portion of the Project equipment, supplies and other components of the Construction Work will pass to City upon the earlier of (i) the date payment for such Project equipment, supplies or components is made by City or (ii) the date any such items are incorporated into the Project Location. ENGIE Services U.S. will retain care, custody and control and risk of loss of such Project equipment, supplies and components until the earlier of Beneficial Use or Substantial Completion. Transfer of title to City will in no way affect City’s and ENGIE Services U.S.’s rights and obligations as set forth in other provisions of this Contract. Except as provided in this Section 6.04, after the date of Substantial Completion, ENGIE Services U.S. will have no further obligations or liabilities to City arising out of or relating to this Contract, except for the obligation to complete any Punch List items, the obligation to perform any warranty service under Section 9.01, and obligations which, pursuant to their terms, survive the termination of this Contract.
SUBCONTRACTORS
Authority to Subcontract. ENGIE Services U.S. may delegate its duties and performance under this Contract, and has the right to enter into agreements with any subcontractors and other service or material providers as ENGIE Services U.S. may select in its discretion to perform the Work. ENGIE Services U.S. will not be required to enter into any subcontracts with parties whom ENGIE Services U.S. has not selected or subcontractors whom ENGIE Services U.S. has objection to using.
Prompt Payment of Subcontractors. ENGIE Services U.S. will promptly pay, when due, all amounts payable for labor and materials furnished in the performance of this Contract and will endeavor to prevent any lien or other claim under any provision of Applicable Law from arising against any City property, against ENGIE Services U.S.’s rights to payments hereunder, or against City.
Relationship. Nothing in this Contract constitutes or will be deemed to constitute a contractual relationship between any of ENGIE Services U.S.’s subcontractors and City, or any obligation on the part of City to pay any sums to any of ENGIE Services U.S.’s subcontractors.
Prevailing Wages. To the extent required by California Labor Code §1771 or other Applicable Law, all employees of ENGIE Services U.S. and ENGIE Services U.S.’s subcontractors performing Work at the Project Location will be paid the per diem prevailing wages for the employee’s job classification in the locality in which the Work is performed. In accordance with California Labor Code §§1773 and 1773.2, City will obtain from the Director of Industrial Relations the general prevailing rate of per diem wages and the general prevailing rate for holiday and overtime work, in the locality in which the Work is to be performed, for each craft, classification or type of worker needed to execute the Work at the Project Location, and will cause copies of such determinations to be kept on file at its principal office and posted at each Project Location. City will promptly notify ENGIE Services U.S. of any changes to any such prevailing wage determination.
PAYMENTS
Monthly Progress Payments. Promptly after the Contract Effective Date, ENGIE Services U.S. will invoice City for a mobilization payment in the amount of twenty percent (20%) of the Contract Amount. This amount must be paid to ENGIE Services U.S. within thirty (30) calendar days after City’s receipt of an invoice therefor. In addition, as the Work progresses, ENGIE Services U.S. will submit to City its applications for monthly payments based on the progress made on the Project through the date on which ENGIE Services U.S. submits such Application for Payment. Within twenty-one (21) calendar days from the Contract Effective Date, ENGIE Services U.S. will prepare and submit to City a schedule of values apportioned to the various divisions or phases of the Work (“Schedule of Values”). Each line item contained in the Schedule of Values will be assigned a value such that the total of all items equals the Contract Amount. All Applications for Payment will be in accordance with the Schedule of Values.
Materials Stored Off-Site. In addition to the monthly progress payments specified in Section 8.01, ENGIE Services U.S. may invoice City for materials purchased in advance and not stored at the Project Location. Each such Application for Payment will be accompanied by proof of off-site material purchases, evidence that the materials have been delivered to a warehouse reasonably acceptable to City and evidence of appropriate insurance coverage. ENGIE Services U.S. will furnish to City written consent from the Surety approving the advance payment for materials stored off site. City will pre-pay one hundred percent (100%) of ENGIE Services U.S.’s Application for Payment for the materials delivered, less Retention as indicated in Section 8.03. ENGIE Services U.S. will protect stored materials from damage. Damaged materials, even though paid for, will not be incorporated into the Work.
Retention. City, or its designee, must approve and pay each Application for Payment, less a retention amount (“Retention”) of five percent (5%) in accordance with California Public Contract Code §7201, within thirty (30) calendar days after its receipt of the Application for Payment; provided, however, that there is to be no Retention with respect to the mobilization payment. A failure to approve and pay an Application for Payment in a timely manner is a material default by City under this Contract. City may make progress payments in full without Retention at any time after fifty percent (50%) of the Work has been completed, as permitted pursuant to California Public Contract Code §9203. Upon Substantial Completion, the Retention must be reduced to two percent (2%) of the Contract Amount, and ENGIE Services U.S. may invoice and City will pay this amount. City will pay ENGIE Services U.S. the remaining two percent (2%) Retention amount upon achieving Final Completion. In lieu of Retention being held by City, ENGIE Services U.S. may request that securities be substituted or Retention be held in an escrow account pursuant to California Public Contract Code §22300.
Final Payment. The final Application for Payment may be submitted after Final Completion. The final payment amount must also include payment to ENGIE Services U.S. for any remaining Retention withheld by City.
Disputed Invoices/Late Payments. City may in good faith dispute any Application for Payment, or part thereof, within fifteen (15) calendar days after the date the Application for Payment was received by City. If City disputes all or a portion of any Application for Payment, City will pay the undisputed portion when due and provide ENGIE Services U.S. a written notice and explanation of the basis for the dispute and the amount of the Application for Payment being withheld related to the dispute. City will be deemed to have waived and released any dispute known to it with respect to an Application for Payment if such notice and written explanation is not provided within fifteen (15) calendar days after the date the Application for Payment was received by City. If any amount disputed by City is finally determined to be due to ENGIE Services U.S., either by agreement between the Parties or as a result of dispute resolution pursuant to ARTICLE 19 below, it will be paid to ENGIE Services U.S. within ten (10) Business Days after such final determination, plus Interest from the date billed or claimed until such amount is paid. . Late payments will accrue Interest from the due date until paid.
Rebate Programs. ENGIE Services U.S. makes no guarantee that City will receive funding from any energy efficiency rebate, incentive, and/or loan program(s), including the Inflation Reduction Act (collectively, “Incentive Funds), or any portion thereof; ENGIE Services U.S. expressly disclaims any liability for City’s failure to receive any portion of the Incentive Funds, and City acknowledges and agrees that ENGIE Services U.S. will have no liability for any failure to receive all or any portion of the Incentive Funds. Procurement, or lack thereof, of the Incentive Funds will not alter the Contract Amount of this Contract or the payment timeline associated with payment of the Contract Amount.
WARRANTY / LIMITATION OF LIABILITY
EXCEPT FOR THE WARRANTIES PROVIDED IN THIS ARTICLE 9, ENGIE SERVICES U.S. MAKES NO WARRANTIES IN CONNECTION WITH THE WORK PROVIDED UNDER THIS CONTRACT, WHETHER EXPRESS OR IMPLIED IN LAW, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY IMPLIED WARRANTIES AGAINST INTELLECTUAL PROPERTY INFRINGEMENT. CITY WILL HAVE NO REMEDIES AGAINST EITHER ENGIE SERVICES U.S. OR ANY ENGIE SERVICES U.S. SUBCONTRACTOR OR VENDOR FOR ANY DEFECTIVE MATERIALS OR EQUIPMENT INSTALLED, EXCEPT FOR THE REPAIR OR REPLACEMENT OF SUCH MATERIALS OR EQUIPMENT IN ACCORDANCE WITH THE WARRANTIES INDICATED BELOW. SPECIFICALLY, NEITHER ENGIE SERVICES U.S., NOR ENGIE SERVICES U.S.’s SUBCONTRACTORS OR VENDORS, WILL BE LIABLE TO CITY FOR LOSS OF PROFITS OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY.
ENGIE Services U.S. warrants to City that material and equipment furnished under this Contract will be of good quality and new, unless otherwise specifically required or permitted by this Contract. ENGIE Services U.S. further warrants that its workmanship provided hereunder, including its subcontractors’ workmanship, will be free of material defects for a period of one (1) year from the date of Substantial Completion as indicated on the executed Certificate of Substantial Completion, or the date of Beneficial Use as indicated on the executed Certificate of Beneficial Use (“ENGIE Services U.S. Warranty”). Notwithstanding the preceding sentence, the date the ENGIE Services U.S. Warranty commences with respect to a specific piece or pieces of equipment may be further defined in Attachment C.
Equipment and material warranties that exceed the ENGIE Services U.S. Warranty period will be provided directly by the equipment and/or material manufacturers and such warranties will be assigned directly to City, after the one (1) year period. During the ENGIE Services U.S. Warranty period, ENGIE Services U.S. will be City’s agent in working with the equipment and material manufacturers in resolving any equipment or material warranty issues. If any material defects are discovered within the ENGIE Services U.S. Warranty period, ENGIE Services U.S., or ENGIE Services U.S.’s subcontractors, will correct its defects, and/or ENGIE Services U.S. will work with the equipment or material manufacturer as City’s agent to facilitate the manufacturer’s correction of the equipment or material defect. Such warranty services will be performed in a timely manner and at the reasonable convenience of City. If a warranty issue arises on any equipment or material installed after the ENGIE Services U.S. Warranty period, and the equipment or material has a warranty period that exceeds one (1) year, City will contact the manufacturer directly to resolve such warranty issues and City acknowledges that the manufacturer will have sole responsibility for such issues.
The warranties in this ARTICLE 9 expressly exclude any remedy for damage or defect caused by improper or inadequate maintenance of the installed equipment by service providers other than ENGIE Services U.S. or its subcontractors, corrosion, erosion, deterioration, abuse, modifications or repairs not performed by an authorized ENGIE Services U.S. subcontractor, improper use or operation, or normal wear and tear under normal usage. ENGIE Services U.S. shall not be responsible for the cost of correcting a breach of warranty or defect to the extent that the manufacturer of the equipment that is the subject of a warranty hereunder does not honor its equipment warranty as a result of its termination of operations, insolvency, liquidation, bankruptcy or similar occurrence. Unless otherwise specified, all warranties hereunder, including without limitation those for defects, whether latent or patent, in design, engineering, or construction, will terminate one (1) year from the date of Substantial Completion or Beneficial Use; and thereafter, ENGIE Services U.S. will have no liability for breach of any warranty or for any latent or patent defect of any kind pursuant to California Code of Civil Procedure §§337.1 and 337.15.
OWNERSHIP OF CERTAIN PROPERTY AND EXISTING EQUIPMENT
Ownership of Certain Proprietary Property Rights.
Ownership: Except as expressly provided in this Contract, City will not acquire, by virtue of this Contract, any rights or interest in any formulas, patterns, devices, software, inventions or processes, copyrights, patents, trade secrets, other intellectual property rights, or similar items of property which are or may be used in connection with the Work. ENGIE Services U.S. will own all inventions, improvements, technical data, models, processes, methods, and information and all other work products developed or used in connection with the Work, including all intellectual property rights therein.
License: Solely in connection with the Facilities, ENGIE Services U.S. grants to City a limited, perpetual, royalty-free, non-transferrable license for any ENGIE Services U.S. intellectual property rights necessary for City to operate, maintain, and repair any modifications or additions to Facilities, or equipment delivered, as a part of the Work.
Ownership and Use of Instruments of Service. All data, reports, proposals, plans, specifications, flow sheets, drawings, and other products of the Work (the “Instruments of Service”) furnished directly or indirectly, in writing or otherwise, to City by ENGIE Services U.S. under this Contract will remain ENGIE Services U.S.’s property and may be used by City only for the Work. ENGIE Services U.S. will be deemed the author and owner of such Instruments of Service and will retain all common law, statutory and other reserved rights, including copyrights. The Instruments of Service may not be used by City or any City Person for future additions or alterations to the Project or for other projects, without the prior written agreement of ENGIE Services U.S. Any unauthorized use of the Instruments of Service will be at City’s sole risk and without liability to ENGIE Services U.S. If City uses the Instruments of Service for implementation purposes, including additions to or completion of the Project, without the written permission of ENGIE Services U.S., City agrees to waive and release, and indemnify and hold harmless, ENGIE Services U.S., its subcontractors, and their directors, employees, subcontractors, and agents from any and all Losses associated with or resulting from such use.
Ownership of any Existing Equipment. Ownership of any equipment and materials presently existing at the Facilities on the Contract Effective Date will remain the property of City even if such equipment or materials are replaced or their operation made unnecessary by work performed by ENGIE Services U.S. If applicable, ENGIE Services U.S. will advise City in writing of all equipment and materials that will be replaced at the Facilities and City will, within five (5) Business Days of ENGIE Services U.S.’s notice, designate in writing to ENGIE Services U.S. which replaced equipment and materials should not be disposed of off-site by ENGIE Services U.S. (the “Retained Items”). City will be responsible for and designate the location and storage for the Retained Items. ENGIE Services U.S. will be responsible for the disposal of replaced equipment and materials, except for the Retained Items. ENGIE Services U.S. will use commercially reasonable efforts to remove the Retained Items in such a manner as to avoid damage thereto, or if it is unreasonable to avoid damage altogether, to minimize the damage done. ENGIE Services U.S. will not be responsible for the removal and/or disposal of any Hazardous Substances except as required by the Scope of Work.
INDEMNIFICATION / LIMITATION ON LIABILITY
Indemnification. To the fullest extent permitted by Applicable Laws, each Party will indemnify, hold harmless, release and defend the other Party, its officers, employees, and agents from and against any and all actions, claims, demands, damages, disabilities, fines, penalties, losses, costs, expenses (including consultants’ and attorneys’ fees and other defense expenses) and liabilities of any nature (“Losses”) that may be asserted by any person or entity, to the extent arising out of that Party’s performance or activities hereunder, including the performance or activities of other persons employed or utilized by that Party in the performance of this Contract, excepting liabilities to the extent due to the negligence or willful misconduct of the indemnified party. This indemnification obligation will continue to bind the Parties after the termination of this Contract.
Waiver of Consequential Damages and Limitation of Liability. The liability of a defaulting Party will be limited to direct, actual damages. Neither Party shall be liable to the other Party for any special, indirect, incidental or consequential damages whatsoever, whether in contract, tort (including negligence) or strict liability, including, but not limited to, operational losses in the performance of business such as lost profits or revenues or any increase in operating expense. Additionally, each Party waives any claims for negligence against the other Party to the fullest extent permitted by Applicable Law.
INSURANCE / BONDS
ENGIE Services U.S. Insurance. ENGIE Services U.S. will maintain, or cause to be maintained, for the duration of this Contract, the insurance coverage outlined in (a) through (f) below, and all such other insurance as required by Applicable Law. Evidence of coverage will be provided to City via an insurance certificate.
Workers’ Compensation/Employers Liability for states in which ENGIE Services U.S. is not a qualified self-insured. Limits as follows:
* Workers’ Compensation: Statutory
* Employers Liability: Bodily Injury by accident $1,000,000 each accident Bodily Injury by disease $1,000,000 each employee
Bodily Injury by disease $1,000,000 policy limit
Commercial General Liability insurance with limits of:
* $2,000,000 each occurrence for Bodily Injury and Property Damage * $4,000,000 General Aggregate - other than Products/Completed Operations * $2,000,000 Products/Completed Operations Aggregate
* $2,000,000 Personal and Advertising Injury
* $ 100,000 Damage to premises rented to ENGIE Services U.S.
Coverage to be written on an occurrence form. Coverage to be at least as broad as ISO form CG 0001 (04/13) or its equivalent forms, without endorsements that limit the policy terms with respect to: (1) provisions for severability of interest or (2) explosion, collapse, underground hazard.
Auto Liability insurance for owned, hired and non-owned vehicles with limits of $1,000,000 per accident. Coverage to be written on an occurrence form.
Professional Liability insurance with limits of:
* $1,000,000 per occurrence
* $1,000,000 aggregate
Coverage to be written on a claims-made form.
Umbrella/Excess Liability Insurance. Limits as follows:
* $1,000,000 each occurrence
* $1,000,000 aggregate
Coverage terms and limits to apply excess of the per occurrence and/or aggregate limits provided for Commercial General Liability and Professional Liability written on a claims made form. Coverage terms and limits also to apply in excess of those required for Employers Liability and Auto Liability written on an occurrence form.
Policy Endorsements.
*
* The insurance provided for Commercial General Liability and Auto Liability above will:
(i) include City as an additional insured with respect to Work performed under this Contract, but only to the extent of the indemnity obligations contained in this Contract, and (ii) provide that the insurance is primary coverage with respect to all insureds, but only to the extent of the indemnity obligations contained in this Contract.
Performance and Payment Bonds. Prior to commencing Work under this Contract, ENGIE Services U.S. will furnish a performance bond, in an amount equal to one hundred percent (100%) of the Contract Amount, and a payment bond to guarantee payment of all claims for labor and materials furnished, in an amount equal to one hundred percent (100%) of the Contract Amount (collectively, the “Contract Bonds”). The Contract Bonds shall be maintained in full force and effect until Final Completion; provided that upon the achievement of Substantial Completion, the value of the Contract Bonds shall be reduced to the value of the Retainage being withheld by City. The Contract Bonds are not being furnished to cover the performance of any Professional Services, including any energy guaranty or guaranteed savings under this Contract, nor to cover any equipment and/or material manufacturer’s warranty or other third-party warranty being assigned to City. City agrees that upon Final Completion and expiration of the ENGIE Services U.S. Warranty period set forth in Article 9 herein, the Contract Bonds shall be returned to ENGIE Services U.S., and all obligations arising thereunder are terminated and the surety company that issued the bond is forever discharged from any and all liabilities of whatever nature arising in connection with the Contract Bonds.
DOE GUIDELINES; ENERGY POLICY ACT
As authorized by §1605(b) of the Energy Policy Act of 1992 (Pub. L. No. 102-486) the U.S. Department of Energy has issued, and may issue in the future, guidelines for the voluntary reporting of Greenhouse Gas emissions (“DOE Guidelines”). “Greenhouse Gases” means those gases and other particles as defined in the DOE Guidelines. City hereby assigns and transfers to ENGIE Services U.S., and its Affiliates and assigns, any Greenhouse Gas emission reduction credits that result from the Work.
MUNICIPAL ADVISOR / TAX ADVISOR
THE PARTIES ACKNOWLEDGE AND AGREE THAT ENGIE SERVICES U.S. IS NOT A MUNICIPAL ADVISOR AND CANNOT GIVE ADVICE TO CITY WITH RESPECT TO MUNICIPAL SECURITIES OR MUNICIPAL FINANCIAL PRODUCTS ABSENT CITY BEING REPRESENTED BY, AND RELYING UPON THE ADVICE OF, AN INDEPENDENT REGISTERED MUNICIPAL ADVISOR. ENGIE SERVICES U.S. IS NOT SUBJECT TO A FIDUCIARY DUTY WITH REGARD TO CITY OR THE PROVISION OF INFORMATION TO CITY. CITY WILL CONSULT WITH AN INDEPENDENT REGISTERED MUNICIPAL ADVISOR ABOUT THE FINANCING OPTION APPROPRIATE FOR CITY’S SITUATION.
Section 14.02 The Parties acknowledge and agree that ENGIE Services U.S. is not a tax advisor and cannot give advice to City with respect to the Inflation Reduction Act and any funds the City may be eligible for thereunder. City must consult its own tax and legal advisors with regard thereto.
TRADE SECRETS
If any materials or information provided by ENGIE Services U.S. to City under this Contract are designated by ENGIE Services U.S. as a “trade secret” or otherwise exempt from disclosure under the Public Records Act (California Government Code §6250 et seq., the “Act”) and if a third party makes a request for disclosure of the materials under the Act, as soon as practical (but not later than five (5) calendar days) after receipt of such request, City will notify ENGIE Services U.S. of such request and advise ENGIE Services U.S. whether City believes that there is a reasonable possibility that the materials may not be exempt from disclosure. Within ten (10) calendar days after a third party’s request for disclosure of materials under the Act, ENGIE Services U.S. will (i) authorize City to release the documents or information sought; or (ii) if ENGIE Services U.S. reasonably believes that the information is exempt from disclosure, advise City not to release the materials.
EVENTS OF DEFAULT
Events of Default by ENGIE Services U.S. Each of the following events or conditions will constitute an “Event of Default” by ENGIE Services U.S.:
any substantial failure by ENGIE Services U.S. to perform or comply with this Contract, including a material breach of any covenant contained herein, and such failure continues for thirty (30) calendar days after notice to ENGIE Services U.S. demanding that such failure to perform be cured; provided that (y) such failure to perform will not be deemed a default hereunder if it is excused by a provision of this Contract, and (z) if such cure cannot be effected in thirty (30) calendar days, ENGIE Services U.S. will be deemed to have cured the default upon the commencement of a cure within thirty (30) calendar days and diligent subsequent completion thereof; or any representation or warranty furnished by ENGIE Services U.S. in this Contract which was false or misleading in any material respect when made.
Events of Default by City. Each of the following events or conditions will constitute an “Event of Default” by City:
any substantial failure by City to perform or comply with this Contract, including a material breach of any covenant contained herein, and such failure continues for thirty (30) calendar days after notice to City demanding that such failure to perform be cured; provided that (y) such failure to perform will not be deemed a default hereunder if it is excused by a provision of this Contract; and (z) if such cure cannot be effected in thirty (30) calendar days, City will be deemed to have cured the default upon the commencement of a cure within thirty (30) calendar days and diligent subsequent completion thereof; or any representation or warranty furnished by City in this Contract which was false or misleading in any material respect when made; or any failure by City to pay any amount to ENGIE Services U.S. which is not paid within ten (10) calendar days after written notice from ENGIE Services U.S. that the amount is past due.
REMEDIES UPON DEFAULT
Termination for Cause. If there is an Event of Default by either Party under this Contract, unless such Event of Default has been cured within the applicable time periods for a cure set forth in ARTICLE 16, the non-defaulting Party may terminate this Contract by providing three (3) Business Days’ written notice to the defaulting Party in the case of a monetary default and ten (10) Business Days’ written notice to the defaulting Party in the case of a non-monetary default. Upon termination of this Contract, each Party will promptly return to the other all papers, materials, and property of the other held by such Party in connection with this Contract. Each Party will also assist the other in the orderly termination of this Contract and the transfer of all aspects hereof, tangible and intangible, as may be necessary for the orderly, non-disrupted business continuation of each Party. If this Contract is so terminated, ENGIE Services U.S. will be entitled to payment for Work satisfactorily performed, earned profit and overhead, and costs incurred in accordance with this Contract up to the date of termination.
Remedies Upon Default by ENGIE Services U.S. If an Event of Default by ENGIE Services U.S. occurs, City will be entitled to obtain any available legal or equitable remedies through arbitration proceedings instituted pursuant to ARTICLE 19, including, without limitation, terminating this Contract, or recovering amounts due and unpaid by ENGIE Services U.S. and/or damages, which will include City’s reasonable, actual, direct out-of-pocket losses incurred by reason of such Event of Default and any cost of funding; loss of anticipated payment obligations; and any payment or delivery required to have been made on or before the date of the Event of Default and not made, including interest on any sums due, and losses and costs incurred as a result of terminating this Contract and all costs and expenses reasonably incurred in exercising the foregoing remedies.
Remedies upon Default by City. If an Event of Default by City occurs, ENGIE Services U.S. will be entitled to obtain any available legal or equitable remedies through arbitration proceedings instituted pursuant to ARTICLE 19 including, without limitation, terminating this Contract or recovering amounts due and unpaid by City, and/or damages which will include ENGIE Services U.S.’s reasonable, actual, direct out-of-pocket losses incurred by reason of such Event of Default and any cost of funding; loss of anticipated payment obligations; and any payment or delivery required to have been made on or before the date of the Event of Default and not made, including Interest on any sums due, and losses and costs incurred as a result of terminating this Contract and all costs and expenses reasonably incurred in exercising the foregoing remedies.
CONDITIONS BEYOND CONTROL OF THE PARTIES
Excusable Events. If any Party is delayed in, or prevented from, performing or carrying out its obligations under this Contract by reason of any Excusable Event, such circumstance will not constitute an Event of Default, and such Party will be excused from performance hereunder and will not be liable to the other Party for or on account of any loss, damage, injury or expense resulting from, or arising out of, such delay or prevention. Notwithstanding the foregoing, no Party will be excused from any payment obligations under this Contract as a result of an Excusable Event.
Utility Work. City expressly understands and agrees that Excusable Events may occur due to Interconnection Facilities work that may need to be performed by the local electric utility (“Utility”) in order for ENGIE Services U.S. to fully implement the Project. “Interconnection Facilities” means any distribution or transmission lines and other facilities that may be required to connect equipment supplied under this Contract to an electrical distribution/transmission system owned and maintained by the Utility. Any Interconnection Facilities work that may be required will be performed by the Utility under the Interconnection Agreement.
GOVERNING LAW AND RESOLUTION OF DISPUTES
Governing Law. This Contract is governed by and must be interpreted under the laws of the State where the Work is performed, without regard to the jurisdiction’s choice of law rules.
Initial Dispute Resolution. If a dispute arises out of or relates to this Contract, the transaction contemplated by this Contract, or the breach of this Contract (a “Dispute”), either Party may initiate the dispute resolution process set forth in this ARTICLE 19 by giving notice to the other Party. The Parties will endeavor to settle the Dispute as follows:
Field Representatives’ Meeting: Within fifteen (15) Business Days after notice of the Dispute, ENGIE Services U.S.’s senior project management personnel will meet with City’s project representative in a good faith attempt to resolve the Dispute.
Management Representatives’ Meeting: If ENGIE Services U.S.’s and City’s project representatives fail to meet, or if they are unable to resolve the Dispute, senior executives for ENGIE Services U.S. and for City, neither of whom have had day-to-day management responsibilities for the Project, will meet, within thirty (30) calendar days after notice of the Dispute, in an attempt to resolve the Dispute and any other identified disputes or any unresolved issues that may lead to a dispute. If the senior executives of ENGIE Services U.S. and City are unable to resolve a Dispute or if a senior management conference is not held within the time provided herein, either Party may submit the Dispute to mediation in accordance with Section 19.03.
Mediation. If the Dispute is not settled pursuant to Section 19.02, the Parties will endeavor to settle the Dispute by mediation under the Commercial Mediation Procedures of the American Arbitration Association. Mediation is a condition precedent to arbitration or the institution of legal or equitable proceedings by either Party. Once one Party files a request for mediation with the other Party and with the American Arbitration Association, the Parties agree to conclude the mediation within sixty (60) calendar days after filing the request. Either Party may terminate the mediation at any time after the first session, but the decision to terminate must be delivered in person in writing by the Party’s representative to the other Party’s representative and the mediator. If the Dispute is not resolved by mediation within sixty (60) calendar days after the date of filing of the request for mediation, then the exclusive means to resolve the Dispute is final and binding arbitration, as described in Section 19.04. Either Party may initiate arbitration proceedings by notice to the other Party and the American Arbitration Association.
Arbitration Proceedings. The following provisions apply to all arbitration proceedings pursuant to this ARTICLE 19:
The place of arbitration will be the American Arbitration Association office closest to where the Work was performed.
One arbitrator (or three arbitrators if the monetary value of the Dispute is more than $2,000,000) (the “Arbitral Panel”) will conduct the arbitral proceedings in accordance with the Commercial Arbitration Rules and Mediation Procedures (Excluding the Procedures for Large, Complex Commercial Disputes) of the American Arbitration Association currently in effect (“Arbitration Rules”). To the extent of any conflicts between the Arbitration Rules and the provisions of this Contract, the provisions of this Contract prevail.
The Parties will submit true copies of all documents considered relevant with their respective statement of claim or defense, and any counterclaim or reply. In the discretion of the Arbitral Panel, the production of additional documents that are relevant and material to the determination of the Dispute may be required.
The Arbitral Panel does not have the power to award, and may not award, any punitive, indirect or consequential damages (however denominated). All arbitration fees and costs are to be shared equally by the parties, regardless of which Party prevails. Each Party will pay its own costs of legal representation and witness expenses.
The award must be in the form of a reasoned award.
The Dispute will be resolved as quickly as possible. The Arbitral Panel will endeavor to issue the arbitration award within six (6) months after the date on which the arbitration proceedings were commenced.
The award will be final and binding and subject to confirmation and enforcement proceedings in any court of competent jurisdiction.
Multiparty Proceeding. Either Party may join third parties whose joinder would facilitate complete resolution of the Dispute and matters arising from the resolution of the Dispute.
Lien Rights. Nothing in this ARTICLE 19 limits any rights or remedies not expressly waived by ENGIE Services U.S. that ENGIE Services U.S. may have under any lien laws or stop notice laws.
REPRESENTATIONS AND WARRANTIES
Each Party warrants and represents to the other that:
it has all requisite power and authority to enter into this Contract, to perform its obligations hereunder and to consummate the transactions contemplated hereby; the execution, delivery, and performance of this Contract have been duly authorized by its governing body, or are in accordance with its organizational documents, and this Contract has been duly executed and delivered for it by the signatories so authorized, and constitutes its legal, valid, and binding obligation; the execution, delivery, and performance of this Contract will not breach or violate, or constitute a default under, its organizational documents or any contract, lease or instrument to which it is a party or by which it or its properties may be bound or affected; and it has not received any notice, nor to the best of its knowledge is there pending or threatened any notice, of any violation of any Applicable Laws, awards or permits which would materially and adversely affect its ability to perform hereunder.
NOTICE
Any notice required or permitted hereunder will be deemed sufficient if given in writing and delivered (i) personally, (ii) by email, (iii) sent by registered or certified mail, return receipt requested, postage prepaid, or (iv) delivered to a nationally recognized express mail service, charges prepaid, receipt obtained, to the address shown below or to such other persons or addresses as are specified by similar notice.
TO ENGIE SERVICES U.S.: ENGIE Services U.S. Inc.
500 12th Street, Suite 300
Oakland, CA 94607
Tel:
Attention: Carrie Dixon, Project Manager
Email: [email protected]
With a COPY TO: Legal Department
ENGIE Services U.S. Inc.
35 North Lake Avenue, Suite 900
Pasadena, CA 91101-1892
Attention: Contract Analyst Senior
Tel: 626-377-4948
TO City: City of Salinas
200 Lincoln
Salinas, CA 93901
Attention:
Tel:
Email:
With a COPY TO: Office of _____________
_____________________
Street Address
City, State, Zip
Attention:
Tel:
Email:
CONSTRUCTION OF CONTRACT
This Contract is the result of arms-length negotiations between two sophisticated parties and ambiguities or uncertainties in it will not be construed for or against either Party, but will be construed in a manner that most accurately reflects the intent of the Parties as of the Contract Effective Date. Each of the Parties acknowledges and agrees that neither Party has provided the other with any legal, accounting, regulatory, financial, or tax advice with respect to any of the transactions contemplated hereby, and each Party has consulted its own legal, accounting, regulatory, financial and tax advisors to the extent it has deemed appropriate.
CHOICE OF LAW
THE INTERPRETATION, VALIDITY AND ENFORCEMENT OF THIS CONTRACT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA.
BINDING EFFECT
Except as otherwise provided herein, the terms and provisions of this Contract will apply to, be binding upon, and inure to the benefit of the Parties hereto and their respective heirs, legal representatives, successors, and permitted assigns.
NO WAIVER
The failure of ENGIE Services U.S. or City to insist upon the strict performance of this Contract will not constitute or be construed as a waiver or relinquishment of either Party’s right to thereafter enforce the same in accordance with this Contract in the event of a continuing or subsequent default on the part of ENGIE Services U.S. or City.
SEVERABILITY
If any clause or provision of this Contract or any part thereof becomes or is declared by a court of competent jurisdiction invalid, illegal, void, or unenforceable, this Contract will continue in full force and effect without said provisions; provided that no such severability will be effective if it materially changes the benefits or obligations of either Party hereunder.
HEADINGS
Headings and subtitles used throughout this Contract are for the purpose of convenience only, and no heading or subtitle will modify or be used to interpret the text of any section.
COUNTERPARTS; INTEGRATION
This Contract may be executed in counterparts (and by different Parties hereto in different counterparts), each of which will constitute an original, but all of which when taken together will constitute a single contract. This Contract constitutes the entire contract among the Parties relating to the subject matter hereof and supersedes any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. This Contract cannot be amended, modified, or terminated except by a written instrument, executed by both Parties hereto. Delivery of an executed counterpart of a signature page of this Contract by email will be effective as delivery of a manually executed counterpart of this Contract. [the Parties’ signatures appear on the following page]
IN WITNESS WHEREOF, and intending to be legally bound, the Parties hereto subscribe their names to this Contract by their duly authorized officers as of the Contract Effective Date.
ENGIE SERVICES U.S.: CITY:
ENGIE Services U.S. Inc. City of Salinas
By: _________________________________ By: __________________________________ Name: Name:
Title: Title:
ATTACHMENT A
FACILITIES
The following Facilities are included under the Scope of Work as listed below:
Facility
Address
El Gabilan Library
1400 N. Main St, Salinas, CA 93906
Police Department
312 E. Alisal St., Salinas, CA 93901
Salinas City Hall
200 Lincoln Ave., Salinas, CA 93901
ATTACHMENT C
SCOPE OF WORK
California State Contractor’s License Number 995037
California Public Works Contractor Registration Number 1000001498 Energy Conservation Measures to Be Implemented
ECM
#
Description
1 Solar Generating Facilities
2 Emergency Generator
ECM 1: SOLAR GENERATING FACILITIES
The table below lists the locations for the solar photovoltaic (PV) installations and the structure types:
Solar Generating Facilities to be Installed
Facility
Est. kWdc
Solar PV Structure
El Gabilan Library
92.6 Roof
Police Department
617
Canopy
General Scope of Work:
Prepare and submit design drawings to City of Salinas for approval and to the local utility for interconnection permits.
If the AHJ deems it necessary, ENGIE U.S. will obtain the proper geotechnical reports to submit an application to the California Geological Survey (CGS) with a change order.
Provide geotechnical evaluations necessary for design requirements.
Provide utility interconnection drawings and management services.
Provide and coordinate installation of the NGOM and NEM metering.
Procure materials and equipment necessary for construction.
Provide all project management and construction management necessary for a full and complete installation.
Provide labor, supervision and coordination with the City of Salinas for the installation of photovoltaic (PV) modules and supporting structures, electrical distribution and control systems.
Provide and install PV modules and all necessary mounting hardware for each system.
Provide and install inverters and all necessary electrical equipment and conduits to connect to the electrical switchgear or meter. Electrical shutdowns are anticipated at each site. Time of shutdown will be coordinated with the City of Salinas and may include weeknights and weekends. Shutdowns will not be scheduled during regular working hours.
Provide and install solar canopy and roof mounted structures to offset electrical consumption at the two (2) locations in the table above.
Canopy: The canopy structure design will include a painted canopy structure that has a seven (7) degree tilt and is thirteen feet, six inches (13’6”) clear of grade level on the low side and a pier depth of ten (10) feet deep. The canopy structure design assumes no de-watering, bending, shoring, or casing. The paint color shall be selected by the City of Salinas and may be any color other than white. No galvanized coating is included in this Scope of Work.
Roof: The rooftop solar arrays shall be attached to the existing standing seam roof using standing seam clamps. The solar panels will be installed flush to the roof matching the orientation and tilt of the roof surface. Rapid shutdown devices will be installed on the solar array per electrical code requirements.
Provide coordination with roof warranty holder for inspection. The City will provide the Contractor with the warranty agent’s contact information. .
Include all required incidental work, such as pull tests, blocking, lashing, sealing, fire stopping, waterproofing, roof repair, commissioning and testing.
Include any other electrical, roof attachment or PV support structure work as might reasonably be implied as required, even though not specifically mention herein or shown on the drawings.
Penetrations should be minimized within code requirements. All penetrations shall be waterproofed. Work shall be performed by an experienced and licensed roofer, who regularly engages in waterproofing or roof penetrations for the type of roof.
DC wiring and AC wiring within the solar canopies and roof mount structures shall be copper wire. Aluminum wire will be used from each system's AC combiner to the main point of contact at the site’s electrical switchgear.
Provide and install twenty-nine (29) new LED lighting fixtures (RAB PRT42N or equivalent) for canopies located in parking lots (one for each 27’ bay).
Provide as-built drawings and Operations and Maintenance manuals in electronic format upon project completion.
Start-up, test, and commission the systems in accordance with design plans and applicable industry standards.
Secure the Project Location and provide traffic redirection during rifling operations, and during the move-in and move-out of large equipment. City of Salinas will assist with the foregoing site logistics by coordinating access and scheduling with ENGIE Services U.S.
PG&E Mitigation:
ENGIE Services U.S. submitted the City of Salinas solar PV interconnection applications to PG&E. Upon PG&E engineering review, it was identified that the two (2) sites listed below, passed through PG&E engineering review, but with mitigations, ENGIE Services U.S, will be responsible for any coordination, and City of Salinas will be responsible for any fees associated with PG&E with the following upgrades that have been identified to date:
Police Dept. – The following PG&E upgrades are needed with estimated cost of $6,000 per supplemental engineering review report Change CB 1101/2 phase pickup to 720A and 1st reclose time to 10s.
Change Bank #4 LTC forward Vbase from 116V to 117.5V
Library - Supplemental Engineering study results indicated transformer upgrades would be needed only if the solar PV system exceeds 82kW. No mitigation is expected for this site.
ENGIE Services U.S. will not be able to achieve permit to operate the solar PV until these PG&E mitigations have been completed on these sites.
PV Layouts
Schematic engineering layouts are included in Appendix 2. These schematic engineering layouts and the electrical routing related to them are subject to change due to field conditions and upon completion of final engineering.
Exclusions
There is no demo work of parking lot pole lighting required for this project.
There is no landscaping work required for this project.
No Trees will need to be removed.
No Fencing is required for this project.
Casings for the piers as a result of caving.
Security Cameras.
Grading of the area. Solar shall be mounted on existing terrain.
Rock drilling or boring through rocky soil conditions.
Blasting and/or large rock removal, dewatering, or caving of soils.
There are no provisions for contaminated soil mitigation Provision of, modifications to, or additions to fire life safety systems, including but not limited to fire alarm systems, fire sprinklers, and alarm speaker systems.
No allowance has been made for screening, Bird spikes, or other mitigations to eliminate nesting or occupation of wildlife on or within major equipment. Wildlife debris cleanup is excluded.
Scope of Work assumes that existing roof structures can take on the added structural load of the PV systems, no upgrades or repairs of any kind are included.
Remediation and/or removal of hazardous materials, hazardous wastes, or spoils are not included.
ECM 2: EMERGENCY GENERATORS
The table below lists the locations and details of the emergency generators to be installed:
Facility
Replacement/New
Generator Model #
kW
ATS Model #
ATS Size (amps)
City Hall - Generator
Replacement
SG200
200
RTSN800
800
Scope of Work
ENGIE Services U.S. shall provide an electrical installation, design, methods, and procedures based on the National Fire Protection Association (NFPA) 70, City of Salinas Permitting Guidelines, and National Electric Code unless identified elsewhere, and ensure that the generator complies with the air quality standards of the Monterey Bay Air Resources District (MBARD).
ENGIE Services U.S. shall perform the following at each site, to provide emergency power to the loads as described:
City Hall Generator
Provide and install (1) 200kW Natural Gas Generator NEMA 3R with control panel.
Provide, install, and program (1) New Automatic Transfer Switch (ATS) NEMA 3R.
Provide and install new 800A Breaker in Main Electric Switchboard to feed new ATS.
Provide and install raceway and conductors from the new ATS Switchboard to new ATS Support Panelboard located in adjacent Mechanical Room.
Provide and install raceway and conductors from generator to ATS.
Reroute existing critical load branch circuit to new Generator Support Panelboard. Provide and install new raceway and conductors. Generator Support Panelboard will have increased backed up ampacity from 175A to approximately 800A to serve additional critical loads that can be added in the future.
Install new gas line along the parking garage roof of the South end from the utility service at the SE corner to the new generator location.
Install concrete pads for generator andATS with (8) protective bollards total.
Loads to be backed up by generator at each site
Facility
Point of Tie In
Areas of Building
Loads
City Hall
Critical Load Panel Branch Circuit
Sublevel IT & 1st Floor Select Areas fed by Panels: A, B, D, E, E2, E3, ECP1, MCC2, MCCE IT and select lights, plugs and HVAC
ENGIE Services U.S. shall complete the following:
Provide engineering services to develop drawings that include all detailed electrical, mechanical and equipment drawings (e.g., for equipment pads) to be used for permitting and to support as-built documentation.
ENGIE Services U.S will replace the existing failed ATS and install new permanent emergency generator.
Provide and perform all testing, commissioning, start up, acceptance testing, commissioning, training and O&M manuals as needed on all systems provided under this Scope of Work.
AII equipment shall meet any NEC, NEMA or IP enclosure requirements.
Sequence construction activities to maintain electrical service to each building with minimal interruption to the building occupants. Salinas will assist ENGIE Services U.S. in scheduling required shutdowns and provide trained faculty personnel to assist in the shutdown and restarting of building systems. No temporary power supply has been included in the scope.
Final completion shall include testing, commissioning and documentation in accordance with ENGIE Services U.S. approved practices.
Locate, identify, and protect existing utilities, conduits, piping. substructures, etc., ensuring that no damage is inflicted upon existing infrastructure.
Underground locating will be performed for the generator pad location prior to hand trenching the conduit stub ups and laying out the concrete pad forms.
Off-haul and properly dispose of wall mounted ATS and associated equipment that are being replaced by the new generator and ATS identified above.
Properly and adequately cover/secure all open trenches and holes.
Repair damage to surfaces caused by boring, including buckled or sunken pavement.
Perform electrical interconnection of emergency generator to the main switchboard to ensure that, upon a power outage, the generator system provides power to the backup loads. The transition will be automatic, however there will be a brief interruption of service.
Support and help coordinate MBARD inspections.
Schedule electrical service outage required to interconnect the ATS to the Main Service Load Center when necessary. Scheduling shall be set to minimize disruption to the facility and made with at least 2 weeks prior notification to Salinas.
Repair all pavement, concrete, landscaping or other site conditions damaged by installation activities.
Provide traffic control at construction site.
ENGIE Services U.S. will pay for and procure the necessary AHJ and MBARD permits.
Aluminum wire will be used for branch circuit feeders.
Provisions for spare breakers will be provided in the Generator Support Panelboard for the City to use to add the 1st floor critical loads to the new Generator Support Panelboard.
Exclusions:
Rewiring circuits from 1st floor subpanels feeding West Wing/Admin/Fire to the new Generator Support Panelboard.
Blasting and/or large rock removal, dewatering, or caving of soils.
Unforeseen costs for sub-grade construction.
Metering or monitoring equipment (utility or Salinas-owned), computers, modems, and fiber cable or third party monitoring costs.
Any costs associated with temporary. part-time, or full-time site security.
Temporary generator power during change out period or other.
Hazardous materials abatement and/or disposal, or any work in or around areas that have been determined to contain hazardous materials such as asbestos, load, PCBs, and/or similar materials.
Environmental cleanup of slab area or soils from previous oil or gas leaks Electrical work shall not be performed on live electrical equipment.
Utility upgrades including but not limited to transformer replacements, service upgrades, and substation upgrades.
ENGIE Services U.S. has not verified the gas line pressure and assumes the utility line at the SE corner of the garage is of adequate size to accommodate the additional generator fuel needs.
Security Cameras.
Asphalt patching or Restriping.
Landscaping in areas not directly affected by the ENGIE Services U.S. work.
Repair or replacement of damaged or inoperable existing equipment that is not specifically being replaced under the Scope of Work. When such items are discovered, ENGIE Services U.S. will immediately notify a Salinas representative.
With respect to new equipment connecting to the Facility's existing electrical distribution system, ENGIE Services U.S. will not be responsible for the electrical integrity of the existing electrical system, e.g., the condition and proper termination of current-carrying, grounded, and grounding conductors, bus taps, protective elements, the proper protection of existing wire through knockouts, or missing components. Salinas is responsible for providing and maintaining the facility’s electrical distribution system that meets the latest NEC and guidelines adopted by the authority having jurisdiction.
Painting of conduits, generator enclosures or other surfaces, unless specified above.
The generator is identified to be located on the South End of the building between the existing metal buildings. It is assumed clearances are adequate for installation of the generator in this location and that no additional walls, mechanical screens or fencing will be required..
The generator comes with a sound deadening enclosure. No additional sound deadening material or walls are included in this installation.
It is assumed there are no underground obstacles in the generator location. Relocating equipment due to underground storage tanks or utility lines in the selected generator location may result in a change order.
The generator and balance of systems equipment's location is based on input from Salinas during site walks. Any changes in equipment location may result in a change order.
General Project Exclusions and Clarifications Applicable to AII Scopes:
ENGIE Services U.S. will be responsible for obtaining and paying for any required Building, Mechanical, and Electrical Permits.
City of Salinas AHJ permitting fees are included.
ADA, Fire Life Safety, and other work required as a result of AHJ submission is excluded, except as noted above.
ENGIE Services U.S. has assumed Construction will be allowed to proceed smoothly and in a continuous flow. No allowance has been made to demobilize and remobilize resources due to schedule interruptions.
Remediation and/or removal and disposal of Hazardous Substances, including asbestos containing materials, to be by the City of Salinas. If ENGIE Services U.S. encounters material suspected to be hazardous, ENGIE Services U.S. will notify City of Salinas representative and stop further work in the area until the material is removed.
CEQA or other environmental studies, if required, will be the responsibility of the City of Salinas, Public Hearings, if required, will be the responsibility of the City of Salinas.
ENGIE Services U,S. will require the assistance of the City of Salinas personnel to secure the Project Location and to provide traffic redirection during rigging operations, and during the move-in and move-out of large equipment, No allowance has been made for structural upgrades to existing structures, except as specifically set forth in this Scope of Work.
No allowance has been made for screening of new or existing equipment, except as specifically set forth in this Scope of Work.
ENGIE Servies U.S. standard construction means and methods will be used.
City of Salinas will provide access to the Facilities, laydown areas at the work sites, and a reasonable number of parking spaces for ENGIE Services U.S. and ENGIE Services U.S.’s subcontractor vehicles in parking lots at the Facilities.
Work will be performed during normal work hours; no overtime hours are included in the Contract Price except as noted above.
The Scope of Work assures that, unless specifically identified otherwise, all existing systems are functioning properly and are up to current codes. ENGIE Services U.S. will not be responsible for repairs or upgrades to existing systems that are not functioning properly or compliant with current codes. No allowances have been made to bring existing systems up to code.
No allowance has been made to repair or replace damaged or inoperable existing equipment that is not specifically being replaced under the Scope of Work. When such items are discovered, ENGIE Services U.S. will immediately notify City of Salinas representative.
No allowance has been made for underground obstructions or unsuitable soil conditions encountered during trenching or other excavation.
The PV shade structure is not weather tight and will not provide shelter from rain.
Installing water hose bibs for washing the panels are excluded.
Parking lot repairs are excluded, except to the extent of damage caused by ENGIE Services U.S. or its subcontractors.
Repair or replacement of existing housekeeping pads, concrete pads, or base repair of existing walkway lighting are excluded, except as specifically set forth in this Scope of Work.
Painting, unless specified, is excluded.
Where this Scope of Work includes pulling new wiring for lighting fixtures from an existing lighting panel, a grounding conductor must be included in the lighting circuits. City of Salinas is responsible for providing an existing or new grounding conductor terminal bar at the lighting panel that is properly connected to the Facility grounding electrode system in compliance with the latest NEC adopted by the authority having jurisdiction.
With respect to Projects with new equipment connecting to the Facility’s existing electrical distribution system, ENGIE Services U.S. will not be responsible for the electrical integrity of the existing electrical system, e.g., the condition and proper termination of current-carrying, grounded, and grounding conductors, bus taps, protective elements, the proper protection of existing wire through knockouts, or missing components. City of Salinas is responsible for providing and maintaining the facility’s electrical distribution system that meet the latest NEC and guidelines adopted by the authority having jurisdiction.
ENGIE Services U.S. will not be responsible for existing damaged pipes, valves, and related parts and components.
Depth of piers for canopy and ground mount installations are assumed to be 10 feet below grade. No allowances have been made should soils report indicate that depth of piers should be deeper due to soil quality and/or seismic concerns, or additional seismic concerns requires deeper footings.
ENGIE Services U.S. Beneficial Use and Warranty criteria for specific pieces of equipment:
SOLAR GENERATING FACILITIES - The ENGIE Services U.S. Warranty commences immediately when the Generating Facility is capable of generating expected energy and the Utility is ready to issue the permission-to- operate letter Solar Module Warranty - solar modules will be provided with a 25-year manufacturer production warranty.
Solar Inverter Warranty - inverters will be provided with a 10-year manufacturer parts and serving warranty.
GENERATORS - The ENGIE Services U.S. Warranty commences immediately upon Substantial Completion. ENGIE Servies U.S. will provide written notice to the City of Salinas of the date the ENGIE Services U.S. Warranty commences.
Generac Generator Warranty - generator will be provided with a two (2) year standard manufacturer warranty from the date of purchase.
Substantial & Final Completion Forms per Scope of Work:
The table below provides the number of substantial and final completion forms that will be used to document beneficial use and final completion of each Scope of Work.
ECM
Scope of Work
Location
Total Qnty of
Substantial Completions
Total Qnty of
Final Completions
1 Solar Generating Facilities
2 Sites
2, one per system
1, for entire
ECM
2 Emergency Generator
1 Sites
1, one per system
1, for entire
ECM
ATTACHMENT D
MONITORING INSTALLATION SCOPE OF WORK
Overview of DAS Network Installation and Equipment Requirements ENGIE Services U.S. will provide a revenue-grade billing, data acquisition system (DAS). This will provide readily available access to various internal and external information collected on the distributive generation (i.e., solar PV) plant.
ENGIE Services U.S. DAS Monitoring Installation:
Supply and install hardware specific to the DAS system.
Supply and install, terminate, label, and test all Data Point of Connection (DPOC) communication cabling from each DAS node to the predetermined and respective DPOC(s).
Supply, install, and configure a Modbus based digital Net Energy Meter (NEM).
Connect the data portion of digital NEM(s) to their respective DPOC(s).
Supply, install, and configure a Modbus based digital Net Generation Output Meter (NGOM).
Perform the physical installation, labeling, testing and certification testing of each data circuit from the digital NEM(s) to their respective DPOC(s).
Provide basic web portal training to designated City/Facility maintenance staff to view solar data and reports.
ATTACHMENT E
M&V SERVICES
EQUIPMENT AND FACILITIES COVERED
ENGIE Services U.S. will perform measurement and verification services (“M&V Services”) as set forth in this Attachment E with respect to City’s property at the following Project Locations:
Site Name
Site Address
City
County
State
Zip Code
El Gabilan Library
1400 N Main St.
Salinas
Monterey
CA
93906
Police Dept
312 E Alisal St.
Salinas
Monterey
CA
93901
I. Definitions:
Capitalized terms used in this Attachment E and not defined in the Contract, have the meanings set forth below:
“Accumulated Savings” means, as of any date of determination, the cumulative total of Excess Savings. “Actual Energy Rate” means, for any Measurement Period, utility rates calculated by ENGIE Services U.S. using actual utility billing information supplied by City for that Measurement Period. “Annual M&V Fee” means a fee payable annually in advance by City to ENGIE Services U.S., in consideration of the provision of up to five (5) years of M&V Services. The Annual M&V Fee for the first Measurement Period will be four thousand fifty-three dollars and zero cents ($4,053.00). The Annual M&V Fee will be increased annually thereafter at the rate of four percent (4%) per annum, each increase to be effective on the first day of the corresponding Measurement Period. “Assessment Work” means work required to assess the effect on EC Savings for any significant changes to the Facilities (including, but not limited to, building additions, new buildings, and new or changed HVAC equipment). “Base Energy Rate” means the dollars per energy unit for each building and/or each ECM, set forth in this Attachment E, Section (III), and used by ENGIE Services U.S. to calculate the EC Savings. “Baseline” means the energy use established by ENGIE Services U.S. from time to time for each building in the Facilities, taking into consideration Energy Use Factors for such buildings. “EC Savings” means the savings in units of dollars ($) calculated by ENGIE Services U.S. in the manner set forth in this Attachment E, Section (III), achieved through the reduction in consumption or demand through implementation of the Work. “Energy Rate Factors” means factors identified by ENGIE Services U.S. which may affect utility rates from the local utility companies. “Energy Savings Report” is defined in this Attachment E, Section (II)(D). “Energy Savings Term” means the period beginning on the first day of the Construction Period and ending on the earlier of: (i) the day immediately preceding the fifth (5th) anniversary of the M&V Commencement Date; (ii) the termination of the Contract; (iii) the termination by City of the M&V Services in accordance with this Attachment E, Section (II)(G); or (iv) the failure by City to pay the Annual M&V Fee in accordance with this Attachment E, Section (II)(H)(i). “Energy Unit Savings” means the savings in units of energy, power, water, etc., calculated by ENGIE Services U.S. in the manner set forth in this Attachment E, Section (III), achieved through the reduction in consumption or demand through implementation of the Work. “Energy Use Factors” means factors identified by ENGIE Services U.S. which may affect the Baselines or energy use for the Facilities, including but not limited to: hours and levels of occupancy; adjustments in labor force; building use and operational procedures; temperature, humidification, and ventilation levels; installed lighting and scheduled use; building construction and size; general level of repair and efficiency of heating and air conditioning equipment and other energy-using equipment; and amount of heating and air conditioning and other energy-using equipment; quality, quantity, and timeliness of maintenance and repairs to the Generating Facilities or building electrical distribution system; inability to procure replacement parts/components; inability to submit claims under manufacturer warranty, including by reason of manufacturer insolvency; damage or defects no longer covered or excluded under manufacturer warranty; soiling in excess of predicted soiling based on industry-standard modeling; material reduction in energy consumption at a Project Location which significantly limits the Generating Facilities ability to offset Project Location electric consumption; non-operation or shutdown of the Generating Facilities by City or a third party other than ENGIE Services U.S.; damage to the Generating Facilities not caused by ENGIE Services U.S.; and any reduction in annual solar irradiation at a nearby NOAA weather station of more than 10% below the 30-year average. “Energy Use Savings” means, for any Measurement Period, those savings, having units of dollars ($), achieved for such Measurement Period through reductions in energy use, energy demand, water use, and the use of other commodities. “Excess Savings” means the excess of EC Savings over Guaranteed Savings, calculated in the manner set forth in this Attachment E, Section (II)(I)(iv). “Guarantee Payment” means, for any Measurement Period, either: (i) a cash payment by ENGIE Services U.S. to City in an amount equal to the Guarantee Shortfall for that Measurement Period pursuant to this Attachment E, Section (II)(A)(ii); or (ii) additional energy services or energy saving retrofits requested by City with an agreed value equal to the Guarantee Shortfall for that Measurement Period pursuant to this Attachment E, Section (II)(A)(iii). “Guarantee Shortfall” means an amount calculated in accordance with this Attachment E, Section (II)(I)(v). “Guaranteed Savings” means, for any Measurement Period, the dollar amount set forth below for such Measurement Period, as the same may be adjusted from time to time by ENGIE Services U.S. for changes in Energy Rate Factors, Energy Use Factors and consequential revisions to the relevant Baseline:
Measurement Period
Guaranteed Savings
1 $270,174
2 $282,264
3 $294,896
4 $308,092
5 $321,879
“IPMVP” means the International Performance Measurement and Verification Protocol prepared by Efficiency Valuation Organization. “Projected Energy Savings” means those Energy Unit Savings, which ENGIE Services U.S. anticipates will be realized from the installation and continued operation of the Work, as set forth in this Attachment E, Section (III). “Savings Guarantee” is defined in this Attachment E, Section (II)(A)(i).
II. Terms and Conditions
A. Guaranteed Savings.
Savings Guarantee. In consideration of the payment of the Annual M&V Fee, and upon the terms and subject to the conditions set forth herein, ENGIE Services U.S. warrants that City will realize total EC Savings during the Energy Savings Term of not less than the total Guaranteed Savings (the “Savings Guarantee”), as the same may be adjusted from time to time for changes in Energy Rate Factors, Energy Use Factors and consequential revisions to the relevant Baseline.
Guarantee Payment. For any Measurement Period in which there is a Guarantee Shortfall, ENGIE Services U.S. will pay to City, within thirty (30) calendar days after the acceptance by City of the Energy Savings Report for such Measurement Period, the Guarantee Payment for that Measurement Period.
Services or Retrofits in Lieu of Guarantee Payment. If in the judgment of City, City would benefit from additional energy services or energy saving retrofits, City and ENGIE Services U.S. may mutually agree that ENGIE Services U.S. will provide such services or retrofits in lieu of the Guarantee Payment for such Measurement Period. For the purposes of this Contract, such services or retrofits will have a deemed value equal to the Guarantee Shortfall for that Measurement Period.
Excess Savings. For any Measurement Period in which there are Excess Savings, City will repay to ENGIE Services U.S., to the extent of such Excess Savings, any Guarantee Payments previously paid by ENGIE Services U.S. to City and not previously repaid to ENGIE Services U.S. by City, and the Excess Savings for such Measurement Period will be reduced by the amount of such repayment. If ENGIE Services U.S. has provided services or retrofits in lieu of the Guarantee Payment for a prior Measurement Period, such that the Guarantee Payment for such Measurement Period cannot be repaid by City, then in lieu of such repayment Excess Savings will be increased by the deemed value of such services or retrofits.
Excusable Events. If ENGIE Services U.S. is delayed in, or prevented from, accurately calculating the actual EC Savings for any day of any Measurement Period by reason of any Excusable Event, such circumstance will not constitute a default, and ENGIE Services U.S. will be excused from performing the M&V Services while such event is continuing. During such event, Projected Energy Savings for the month(s) in which such event is continuing will be used in lieu of actual data; provided that if three (3) or more years of post M&V Commencement Date data are available for such month(s), the historical average of such data for such month(s) will be used in lieu of Projected Energy Savings.
B. Changes in Energy Use Factors.
Adjustments to Baselines. City will notify ENGIE Services U.S. in writing within ten (10) Business Days of any change in any Energy Use Factor. In addition, data collected by ENGIE Services U.S. during or before the Energy Savings Term may indicate a change in the energy use pattern at the Facilities or any portion thereof and require a change to one or more Baselines. ENGIE Services U.S. will determine the effect that any such change will have on EC Savings and present to City a written analysis of the effects of such changes. ENGIE Services U.S. will also make corresponding revisions to the Baselines and/or EC Savings that it deems appropriate in its reasonable discretion.
Adjustments to Guaranteed Savings. If a change in any Energy Rate Factor or Energy Use Factor results in a reduction of EC Savings, then the Guaranteed Savings for the corresponding Measurement Period(s) will be decreased by the same amount. ENGIE Services U.S. will notify City, in writing, of all such changes.
Changes to Facilities. City or ENGIE Services U.S. may from time to time propose to make changes to the Facilities for the express purpose of increasing EC Savings or addressing events beyond its control. It is agreed that these changes will only be made with the written consent of both Parties, which will not be unreasonably withheld. The Baseline will not be adjusted to reflect any changes agreed to under this Attachment E, Section (II)(B)(iii).
Baseline Adjustment. If ENGIE Services U.S. proposes changes to the Facilities that would not unreasonably interfere with the conduct of City’s business or cause City to incur additional costs, and City does not consent to the changes, then ENGIE Services U.S. will adjust the Baselines upward by the amount of savings projected from the changes.
Projected Energy Savings. During the Energy Savings Term, when the ultimate effect of the Work on EC Savings cannot be accurately determined due to pending construction or changes to the Scope of Work, Projected Energy Savings for the Facilities will be used until the effect of the changes can be determined by ENGIE Services U.S.
Assessment Work. ENGIE Services U.S. has the right to charge City for Assessment Work, which will be billed at current ENGIE Services U.S. engineering rates and will be paid by City within thirty (30) calendar days after receiving ENGIE Services U.S.’s invoice. Before initiating Assessment Work, ENGIE Services U.S. will notify City in writing of the intent and estimated cost associated with the Assessment Work. City will, within forty-five (45) calendar days, give ENGIE Services U.S. written permission to proceed or, alternatively at no charge to ENGIE Services U.S., to stipulate that the Projected Energy Savings for the portion of the Facility in question be used for the purpose of meeting the Savings Guarantee for such Measurement Period and thereafter. If ENGIE Services U.S. does not receive written notice within forty-five (45) calendar days, the Projected Energy Savings for the portion of the Facility in question will be used until such time as City approves the Assessment Work.
Changes in Energy Use Factors. If City fails to notify ENGIE Services U.S. of changes in Energy Use Factors or fails to supply ENGIE Services U.S. in a timely manner with information that is requested by ENGIE Services U.S. for the calculation of EC Savings, the Energy Unit Savings for the relevant Measurement Period will be deemed equal to the corresponding Projected Energy Savings for such period. If information for the relevant Measurement Period is supplied at a later date, the Energy Unit Savings will be modified only if and to the extent that the calculated savings for such period exceed the Projected Energy Savings for such period.
Change Order – Savings Effect. ENGIE Services U.S. will calculate the energy impact of any Change Orders.
Changes in Savings Calculations. Any changes made by ENGIE Services U.S. to the savings calculations will be presented to City in advance. City will have thirty (30) calendar days to challenge or question the changes in writing.
Inspection of Facilities. City agrees that ENGIE Services U.S. will have the right, with or without prior notice, to inspect the Facilities to determine if City has consistently complied with its obligations as set forth above. If any inspection discloses that City has failed, on or prior to the date of such inspection, to be in compliance with any of its obligations, then the Guaranteed Savings will be assumed to have been achieved for the portion of the Energy Savings Term during which such failure will have existed.
Interference. City may not cause, and will take all commercially reasonable steps to prevent any third party from causing, any overshadowing, shading or other interference with the solar insolation that falls on the Generating Facility. Upon discovering, or otherwise becoming aware of, any actual or potential overshadowing, shading or other interference with insolation, City will promptly notify ENGIE Services U.S. If an unforeseeable overshadowing or shading condition not caused by ENGIE Services U.S. or its subcontractors exists and continues for five (5) Business Days or more, City agrees that the Guaranteed Savings for such Generating Facility will be reduced based upon such shading condition, and ENGIE Services U.S. may present City with a proposed reduction to the Guaranteed Savings reflecting such overshadowing, shading or other interference.
C. City Maintenance. Beginning at Beneficial Use or Substantial Completion for any portion of the Work, City will maintain such portion of the Work and upon Final Completion will maintain the Project, in accordance with the maintenance schedules and procedures recommended by ENGIE Services U.S. and by the manufacturers of the relevant equipment, such maintenance to include maintaining all landscaping (including tree trimming) in and around the Generating Facilities. City acknowledges that the Generating Facilities may be located near playgrounds, baseball fields, or softball fields; City agrees that damage to or shading of the Generating Facilities resulting from vehicles, balls, toys, or clothing, or otherwise caused by City Persons or third parties is the responsibility of City and any loss in energy production caused thereby will result in a reduction in the Guaranteed Savings.
D. Energy Savings Report. Annually during the Energy Savings Term, ENGIE Services U.S. will submit to City an energy savings report containing a precise calculation of the EC Savings during the applicable Measurement Period (an “Energy Savings Report”). ENGIE Services U.S. will use its best efforts to submit such Energy Savings Report within ninety (90) calendar days after receipt of all needed information for a Measurement Period, unless additional information is needed to accurately calculate the EC Savings, in which case City will be notified of such a situation within the ninety (90) calendar-day period.
E. On-Site Measurements. City irrevocably grants to ENGIE Services U.S. the right, during the Energy Savings Term, to monitor EC Savings and energy management performance by conducting on-site measurements, including, but not limited to, reading meters and installing and observing on-site monitoring equipment. ENGIE Services U.S. will not exercise such right in a manner that unreasonably interferes with the business of City as conducted at the Facilities as of the date hereof. City will cooperate fully with the exercise of such right by ENGIE Services U.S. pursuant to this Attachment E, Section (II)(E). City will further cooperate with ENGIE Services U.S.’s performance of the M&V Services by providing utility information, changes in Energy Use Factors, and/or additional information as reasonably requested by ENGIE Services U.S.
F. Internet Communication Path. ENGIE Services U.S. will install cellular modems for the purpose of solar data monitoring to send data to our remote secure server.
G. Termination of Guaranteed Savings. If (i) City notifies ENGIE Services U.S. in writing of its intent to terminate the M&V Services, (ii) the Contract is terminated by ENGIE Services U.S. for default by City or by City for any reason permitted by the Contract, (iii) ENGIE Services U.S. is no longer the provider of the Maintenance Services set forth in Attachment F, or (iv) City fails to maintain the Project in accordance with this Attachment E, Section (II)(C), or is in default of any of its other obligations under this Attachment E, the obligation of ENGIE Services U.S. to prepare and deliver the Energy Savings Report and to make a Guarantee Payment will also be terminated. If such termination occurs on a date other than the last day of a Measurement Period, ENGIE Services U.S. will have no obligation to make a Guarantee Payment or prepare and deliver an Energy Savings Report for such Measurement Period.
H. Annual M&V Fee.
Invoicing and Payment. The Annual M&V Fee for the first Measurement Period will be invoiced by ENGIE Services U.S. to City in a lump sum on the M&V Commencement Date. All subsequent Annual M&V Fees will be invoiced by ENGIE Services U.S. on the first day of the corresponding Measurement Period. City, or its designee, will pay ENGIE Services U.S. such Annual M&V Fee, without any retention amount withheld, within thirty (30) calendar days after its receipt of the corresponding invoice. Unless City gives ENGIE Services U.S. prior written notice of its intent to terminate the M&V Services, any failure to timely pay the Annual M&V Fee in accordance with this Attachment E, Section (II)(H) will be a material default by City under the Contract, and ENGIE Services U.S., in addition to any other legal, contractual and equitable remedies available to it, will have no obligation thereafter to perform M&V Services or to make Guarantee Payments.
Any amount not paid when due will, from and after the due date, bear Interest. Accrued and unpaid Interest on past due amounts (including Interest on past due Interest) will be due and payable upon demand.
Not Refundable. The Annual M&V Fee is not refundable for any reason.
I. Calculations.
Calculation of Accumulated Savings. Accumulated Savings will be increased, for any Measurement Period, by the amount of Excess Savings during such Measurement Period, and will be decreased, for any Measurement Period, by the difference, to the extent positive, between (i) the Guaranteed Savings for such Measurement Period minus (ii) the EC Savings for such Measurement Period. For the avoidance of doubt, Accumulated Savings will not be reduced below zero.
Calculation of EC Savings. EC Savings for any Measurement Period will be equal to the sum, for such Measurement Period, of (i) the Energy Use Savings, plus (ii) the Stipulated Non-Energy Savings, in each case as adjusted for changes in Energy Use Factors during such Measurement Period. EC Savings achieved during the Construction Period will be included in the EC Savings for the first Measurement Period.
Calculation of Energy Use Savings. Energy Use Savings will be calculated by ENGIE Services U.S. as the product of (i) the Energy Unit Savings multiplied by (ii) the greater of (a) the applicable Base Energy Rate or (b) the applicable Actual Energy Rate.
Calculation of Excess Savings. From and after the M&V Commencement Date, Excess Savings will be calculated by ENGIE Services U.S. as the difference, to the extent positive, between (i) the EC Savings for the relevant Measurement Period minus (ii) the Guaranteed Savings for such Measurement Period. During the Construction Period, Excess Savings will be calculated by ENGIE Services U.S. in the manner set forth in this Attachment E, Section (III). For the avoidance of doubt, Excess Savings will not be reduced below zero.
Calculation of Guarantee Shortfall. The Guarantee Shortfall, for any Measurement Period, will be calculated by ENGIE Services U.S. as the difference, to the extent positive, between (i) the Guaranteed Savings for such Measurement Period minus (ii) the sum of (a) EC Savings for such Measurement Period plus (b) Accumulated Savings then outstanding.
III. Methodologies and Calculations
The following details the methodologies and calculations to be used in determining the Energy Unit Savings under this Contract.
Table E-1: Measurement and Verification Methods
ECM
ECM Description
M&V Method
Electric Usage
Electric Demand
ECM-1
Photovoltaic (PV) Systems
Option B
N/A
1. M&V Option B: Energy savings performance of Scope of Work are measured and verified at the end-use site. Option B techniques are designed for projects where long-term continuous measurement of performance is desired and warranted. Under Option B, while some parameter may be stipulated or measured once then stipulated, some individual loads are continuously monitored to determine performance; and this measured performance is compared with an equipment-use Baseline to determine the Energy Unit Savings. a. ENGIE Services U.S. will supply a one-time report to City detailing any initial measurements taken to establish usage Baselines or other parameters. Ongoing post-retrofit measurements will be compared to the Baselines, and the quantified Energy Unit Savings will be calculated and presented in ongoing reports. During the Construction Period, the Energy Unit Savings will be calculated by adding the savings measured for the whole months between Substantial Completion or Beneficial Use of the EC Measure and the M&V Commencement Date. b. Scope of Work
No baseline measurements are necessary because pre-retrofit PV production is zero. Kilowatt-hours produced by the PV system will be measured using automated metering. Measured interval production kilowatt-hours will be compared against production shown on the monthly utility bills and any differences will be reconciled. Projected kWh production is shown on Table E-2 below, and is projected to degrade by 0.5% per year.
Table E-2: First Year Solar PV Production
Location
Projected Annual Production (kWh)
El Gabilan Library
122,579
Salinas Police Department
866,677
Total
989,256
c. Assumptions: Once Work is Substantially Complete, these savings will be measured and verified monthly for the Energy Savings Term. d. Baselines and Projected Savings: EC Savings will be determined by multiplying the Energy Unit savings by the applicable Base Energy Rate.EC Savings will be calculated and presented in ongoing reports. During the Construction Period, the EC Savings will be calculated by adding the production measured for the period between Substantial Completion of the ECM and the M&V Commencement Date.
2. Base Energy Rates: EC Savings will be calculated using the Base Energy Rates or Actual Energy Rates for that meter, whichever results in greater EC Savings. Actual Energy Rates will be calculated at the end of each Measurement Period using utility billing information for that Measurement Period and using the same methodology as was employed to determine the base energy rate in the Recommendations.
The Base Energy Rates listed here are to be increased each Measurement Period on a cumulative basis by five percent (5%) beginning on the first anniversary of the M&V Commencement Date and continuing on the first day of each Measurement Period thereafter.
Table E-3: Base Energy Rates
Location
Electricity Rate ($/kWh)
El Gabilan Library
0.3269
Salinas Police Department
0.2655
ATTACHMENT F
MAINTENANCE SERVICES
EQUIPMENT AND FACILITIES COVERED
ENGIE Services U.S. will perform preventive maintenance services (“Maintenance Services”) as set forth in this Attachment F with respect to Generating Facilities being constructed on City’s property at the following Project Locations:
Site Name
Site Address
City
County
State
Zip Code
El Gabilan Library
1400 N Main St.
Salinas
Monterey
CA
93906
Police Dept
312 E Alisal St.
Salinas
Monterey
CA
93901
Fees
“Annual Maintenance Fee” means a fee payable annually in advance by City to ENGIE Services U.S., in consideration of the provision of up to five (5) years of Maintenance Services. The Annual Maintenance Fee for the first Measurement Period will be Nineteen Thousand Five Hundred Forty-Three Dollars ($19,543.00). The Annual Maintenance Fee will be increased annually thereafter at the rate of five percent (5%) per annum, each increase to be effective on the first day of the corresponding Measurement Period.
Term
So long as City pays to ENGIE Services U.S. the Annual Maintenance Fee, ENGIE Services U.S. will provide the Maintenance Services, as described herein, up to five (5) years from the M&V Commencement Date on an annualized basis.
Invoicing; Reporting
The Annual Maintenance Fee for the first Measurement Period will be invoiced by ENGIE Services U.S. to City in a lump sum on the M&V Commencement Date. All subsequent Annual Maintenance Fees will be invoiced by ENGIE Services U.S. on the first day of the corresponding Measurement Period. City, or its designee, will pay ENGIE Services U.S. such Annual Maintenance Fee, without any retention amount withheld, within thirty (30) calendar days after its receipt of the corresponding invoice. Any failure to timely pay the Annual Maintenance Fee in accordance with this Attachment F will be a material default by City, and ENGIE Services U.S., in addition to any other legal, contractual and equitable remedies available to it, will have no obligation thereafter to provide Maintenance Services.
Any amount not paid when due will, from and after the due date, bear Interest. Accrued and unpaid Interest on past due amounts (including Interest on past due Interest) will be due and payable upon demand.
The Annual Maintenance Fee is not refundable for any reason.
Upon completion of any maintenance or repair work, ENGIE Services U.S. will update service logs detailing the work performed, location and any notes relevant to safe and efficient operations. These service logs will be compiled and submitted to City on a quarterly basis.
If ENGIE Services U.S. is no longer the provider of Maintenance Services, City’s new provider will maintain similar service logs. ENGIE Services U.S. will have reasonable access to inspect service logs to determine that adequate Maintenance Services are being performed.
Preventive Maintenance Services Provided
ENGIE Services U.S. will provide the following Maintenance Services during the term:
a. Inspection: Inspect PV modules, combiner boxes, inverters and PV service roof penetrations and support structure on an annual basis. b. Testing: Perform voltage testing, amperage testing, and infrared scans of inverters, combiner boxes, disconnects and switchgear on an annual basis. c. Monitoring: Monitor system performance on a daily basis. d. Cleaning:
Remove dust, dirt, and debris from outside cabinets of combiner boxes, inverters, transformers, and disconnect switches on an annual basis.
Wash PV modules and remove accumulated dust and debris on an semiannual basis.
Repair Services
If a Generating Facility is damaged and requires safe-off, repair, demolition and/or reconstruction, or otherwise requires repair outside of warranty or outside of the Maintenance Services described in Section 3.01, Customer must contact the ENGIE Services U.S. PV Operations & Maintenance Manager and submit a request for quotation. ENGIE Services U.S. will inspect the damage and provide a written quotation and complete scope of work to Customer to restore the Generating Facility to normal operational condition. Before proceeding with repairs, ENGIE Services U.S. and Customer must execute a Work Order, on ENGIE Services U.S.’s form, a sample of which is attached hereto as Exhibit F-1, for the agreed scope of work and quotation amount. Quotations for repair work are calculated on a time and materials basis. Standard Business Hours are M-F, 7am to 5pm. Non-business Hours & Saturdays equals 1.5x Rates. Sundays & Holidays equals 2.0x Rates.
Labor Category
Straight Time
Hourly Rate – PV Electrical Journeyman Technician1
$/hr.
County Labor Rate
Hourly Rate – PV Electrical Apprentice Technician1
$/hr.
County Labor Rate
Hourly Rate – Senior PV Tech/Commissioning2
$/hr.
$175.00
Hourly Rate – Engineering2
$/hr.
$ 185.00
Hourly Rate – Administrative2
$/hr.
$ 108.00
Hourly Rate – Project Management2
$/hr.
$230.00
Mileage
$/Mi
$1.00
Material mark-up %
%
15.00 Lift rental fee
$
Current Market Price
1Trade Hourly rate will be adjusted based on the current year of the local prevailing wage determination plus Burden, requirement for either travel or subsistence and lodging, and markup for services being requested. 2Escalated according to an inflation rate to the year in which service will occur.
Warranty Services
The ENGIE Services U.S. PV Operations & Maintenance Manager will also be City’s point of contact for all issues related to the ENGIE Services U.S. Warranty set forth in Section 9.01 of the Contract. City should refer to Section 9.02 of the Contract for services provided by ENGIE Services U.S. to City in relation to manufacturer’s warranties. The terms and conditions of the relevant manufacturer’s warranties can be found in the operation and maintenance manuals delivered to City at Final Completion.
VII. Services and Equipment to Be Covered by City
ENGIE Services U.S.’s obligations under this Attachment F are expressly conditioned upon City’s payment of the Annual Maintenance Fee and providing and being responsible for the following, without cost to ENGIE Services U.S.:
Making the Generating Facilities described herein available to ENGIE Services U.S. as of the Contract Effective Date.
Operating and maintaining security systems associated with the Generating Facilities.
Maintaining all landscaping in and around Generating Facilities including tree trimming.
Allowing ENGIE Services U.S. and its personnel access as necessary to the Generating Facilities, and any related areas that may be reasonably necessary for performance of the Maintenance Services, including reasonable work, parking, and equipment staging areas.
Allowing ENGIE Services U.S. and its personnel to access electrical power and other utilities then existing at the Generating Facilities as necessary for ENGIE Services U.S. to satisfy its obligations under the Contract.
Remediating, pursuant to Applicable Law, any known Hazardous Substances encountered by ENGIE Services U.S. during the performance of the Maintenance Services which Hazardous Substances were not deposited by ENGIE Services U.S., including any backfill with clean soil as may be reasonably required.
Insuring the Generating Facilities against loss due to acts of God and the public enemy; flood, earthquake, tornado, storm, fire; civil disobedience, sabotage, and vandalism.
Timely reporting of, and permitting timely repair of, Generating Facilities damaged by City Persons or third parties, including damage resulting from parking lot, playground or ballfield activities. Cost of repairs is the responsibility of City.
ENGIE Services U.S. will have no obligation to provide the Maintenance Services to the extent such provision of Maintenance Services is materially adversely affected by City’s failure to satisfy the conditions set forth in this Attachment F.
EXHIBIT F-1
FORM OF WORK ORDER
Work Order #__
This Work Order (“Work Order”) dated _________ (“Work Order Effective Date”) is issued pursuant to and is subject to the terms and conditions of the Energy Services Agreement (“Agreement”) by and between ENGIE Services U.S. Inc. (“ENGIE Services U.S.”) and ______________ (“Customer”) dated ___________. The terms and conditions of the Agreement are hereby incorporated into and made a part of this Work Order for all purposes.
Project Name:
Scope of Work:
Electrical and Structural Repairs:
Exclusions: [edit, as needed]
Premium Time or Over Time
Work on Nights or Weekends
Cutting, Patching or Painting
Permitting
Plan Revisions
Review/Edit/Writing of Specifications
Geotechnical Reports/Inspections
PLA/PSA Agreements
Irrigation System Inspection/Repairs
Landscape Repair/Tire Track Removal
Landscape Maintenance
Infestations
Cost Estimate: [insert]
Pricing assumes State prevailing wages for on-site labor. Quote valid for 30 days.
Payment to ENGIE Services U.S. is not contingent on Customer’s receipt of any insurance proceeds and will be invoiced by ENGIE Services U.S. to Customer in a lump sum upon the completion of the work under this Work Order.
Acceptance and Notice to Proceed
By signing below, Customer agrees to the terms and conditions set forth in this Work Order and authorizes ENGIE Services U.S. to proceed with the scope of work set forth herein.
The Parties may execute this Work Order in counterparts, each counterpart constituting an original, and all counterparts, collectively, constituting only one Work Order. The signatures of each Party need not appear on the same counterpart, and in the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature will create a valid and binding obligation of the Party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.
IN WITNESS WHEREOF, and intending to be legally bound, the Parties hereto subscribe their names to this Work Order by their duly authorized officers as of the Work Order Effective Date.
CUSTOMER:
ENGIE:
City of Salinas
ENGIE Services U.S. Inc.
By:
By:
Name:
Name:
Title:
Title:
Rev. Date: _______ Page 40 of 41 ESC – CA Public
V 02/20/2024
Rev. Date: _______ Page 33 of 41 ESC – CA Public
V 1/27/12
Energy Services Contract
City and ENGIE Services U.S.