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HomeMy WebLinkAboutAgenda Report - January 15, 2020 G-02 PHAGENDA ITEM (30(l CITY OF LODI COUNCIL COMMUNICATION TM AGENDA TITLE: Public Hearing to Consider Adopting Resolution Authorizing City Manager to Execute Energy Service Agreement with Schneider Electric Buildings Americas, Inc., of Carrollton, Texas for Conceptual Development (Phase 1) and Design Development (Phase 2) for Replacement of Aeration Blowers and Diffusers at White Slough Water Pollution Control Facility ($225,000), in Accordance with California Government Code Section 4217 MEETING DATE: January 15, 2020 PREPARED BY: Public Works Director RECOMMENDED ACTION: Public hearing to consider adopting resolution authorizing City Manager to execute Energy Service Agreement with Schneider Electric Buildings Americas, Inc., of Carrollton, Texas for conceptual development (Phase 1) and design development (Phase 2) for replacement of aeration blowers and diffusers at White Slough Water Pollution Control Facility, in the amount of $225,000, in Accordance with California Government Code Section 4217. BACKGROUND INFORMATION: The State of California allows public agencies to enter into energy service contracts with an Energy Service Company (ESCO) if the governing body finds the proposed project will provide energy savings over its service life. Schneider Electric Buildings Americas, Inc. is one of several ESCO's that operate in the State of California. The benefits to the public agency of entering into an ESCO agreement include project delivery efficiencies, diverting project risk, a fixed project construction price, and project performance guarantee with respect to energy savings. Since this is the first ESCO contract being recommended for Council approval, Staff has been deliberate in choosing the appropriate size and type of energy savings project where the ESCO project delivery method will prove most beneficial to the City. The Aeration Blowers and Diffusers Replacement Project is a relatively simple project that fits this criteria. This project and a brief overview of the ESCO process was presented to Council, along with the White Slough Water Pollution Control Facility Update, at the June 25, 2019 shirtsleeve meeting. There are currently four, 350 -horsepower, constant speed aeration blowers to supply dissolved oxygen for the six aeration basins at the White Slough Water Pollution Control Facility (WSWPCF). Since the aeration demand (dissolved oxygen dosage) varies as flow conditions change, the existing constant - speed blowers utilize inlet throttling valves to pace the aeration demand by restricting airflow during times when aeration demand is less. The blower replacement element of this project is intended to replace two of the four existing constant - speed aeration blowers with variable speed blowers. The variable speed blowers will be used in concert with the existing blowers to pace the aeration demand by either speeding up, or slowing down, as demand varies. This operational method is much more energy efficient than using inlet throttling valves to restrict the air being delivered by the constant speed blowers. APPROVED: en c wab2ber, City Manager K:\WP\COUNCIL\2019\CC_PH_WSWPCF_esco_blower project. doc 1/9/2020 Public Hearing to Consider Adopting Resolution Authorizing City Manager to Execute Energy Service Agreement with Schneider Electric Buildings Americas, Inc , of Carrollton, Texas for Conceptual Development (Phase 1) and Design Development (Phase 2) for Replacement of Aeration Blowers and Diffusers at White Slough Water Pollution Control Facility ($225,000), in Accordance with California Government Code Section 4217 January 15, 2020 Page 2 The aeration diffuser system is designed to evenly distribute the air provided by the blowers across the area of each of the six aeration basins. The current membrane panel style diffusers were installed in 2003 and 2007. The panel membranes and associated air delivery piping network are aging and have proven to require extensive maintenance. Due to the size of the panels, maintenance staff must rent a crane to perform panel replacements. This project will consider replacing the membrane panel style diffusers with a membrane disc style diffuser. Membrane discs are much more cost effective to maintain; and safer because a crane is no longer needed to remove and replace the large panels. Initial assessments find the replacement blowers and diffusers will save the City's wastewater utility an estimated $250,000 per year in energy costs, while providing more accurate aeration dosage control. The not -to -exceed agreement price of $225,000 is being set aside to cover the costs of the Conceptual Development (Phase 1) and Design Development (Phase 2) of a three-phase ESCO agreement, if the Construction Phase (Phase 3) is not implemented. The Construction Phase (Phase 3) will only take place if the City is satisfied with the work performed on Phases 1 and 2 and the construction price proposal and performance guarantee is deemed satisfactory. If Phase 3 is implemented, the $225,000 costs for Phases 1 and 2 will be deferred and included as part of the construction price proposal and performance guarantee. Council will ultimately consider award of the Construction Phase based on Staff recommendation. Under normal procedures, a public hearing is not conducted to authorize the City Manager to execute design and construction agreements; however, California Government Code Section 4217 requires public agencies to conduct a public hearing to execute energy service agreements with an ESCO. Staff recommends conducting public hearing to consider adopting resolution authorizing City Manager to execute Energy Service Agreement with Schneider Electric Buildings Americas, Inc., of Carrollton, Texas for conceptual development (Phase 1) and design development (Phase 2) for replacement of aeration blowers and diffusers at White Slough Water Pollution Control Facility, in the amount of $225,000, in Accordance with California Government Code Section 4217. FISCAL IMPACT: The replacement of aeration system blowers and diffusers at WSWPCF will save the Wastewater Utility an estimated $250,000 per year. This savings will be utilized to minimize future rate adjustments. This project will not impact the General Fund. FUNDING AVAILABLE: Wastewater Capital (53199000.77020) - $225,000 0,&)�� Andrew Keys Deputy City Manager/Internal Services Director y Charles E. SW m7ey, Jr. Public Works Director CES/CES/tdb Attachment K:\WP\COUNCIL\2019\CC_PH_WSWPCF_esco_blower project doc 12/31/2019 AGREEMENT FOR TURNKEY DESIGN AND CONSTRUCTION ENERGY SERVICES This Agreement for Turnkey Design and Construction Energy Services ("Agreement") is made effective as of ("Effective Date") by and between the City of Lodi, a municipal corporation ("City") and Schneider Electric Buildings Americas, Inc. ("ESCO"), a Delaware corporation qualified to do business in California, set forth in the attached schedules and exhibit(s) which are listed below and incorporated fully herein, subject to the terms and conditions set forth herein: Exhibit A: Scope of Work - Design Services Exhibit B: Preliminary Schedule — Design Services Exhibit C: Compensation for Design and Construction Services Exhibit D: Scope of Work - Construction Services Exhibit E: Preliminary Schedule — Construction Services Exhibit F: Insurance Requirements Exhibit G: Performance Assurance Support Services Agreement Exhibit H Performance Guarantee Exhibit I: Measurement & Verification ("M&V") Plan Exhibit J: City Responsibilities for Performance Guarantee Exhibit K: Performance Assurance Support Services The City and ESCO may be referred to herein individually as a "Party" and collectively as the "Parties." RECITALS A. The Parties intend, and agree, subject to all other provisions of this Agreement, that the design and construction services to be completed by ESCO pursuant to Articles 1 and 2 of this Agreement and the Exhibits referenced therein (the "ESCO Services") shall include some of the following scope as further detailed in Exhibits "A" and "D". (i) Replace current blowers and diffusers. Add a control system for same; (ii) Energy Efficiency Improvements identified and approved, by City, during Design Phase; (iii) Determination of Project costs and resulting energy -cost savings for approval by the City; (iv) Preparation of construction documents and schedules, approved by City; and (v) Construction services, including the furnishing of all labor, materials, services, and equipment necessary to complete the Project. A(i) and A(ii) are cumulatively referred to as the "Project'. B. The Parties intend to determine the precise scope of the construction services in conjunction with completion of the design services. C. The Parties intend that this Agreement shall be a "turnkey" agreement providing for ESCO to undertake both the design and construction phases of the Project, and the Parties have entered into this Agreement for purposes of setting forth the terms and conditions for ESCO to perform the ESCO Services for the City. Now, in consideration of the foregoing and of the respective rights and obligations of the Parties set forth herein, the Parties agree as follows: V3 033018 Page 1 Agreement for Turnkey Energy Conservation Services 120420]9 ARTICLE 1 DESIGN PHASE OF THE PROJECT PART 1.1: SCOPE, TIMING AND COMPENSATION Section 1.1.1 Scope of Article 1 Requirements. Except to the extent terms are defined in this Article 1 and used elsewhere in this Agreement and except as may be expressly provided in this Agreement, this Article 1 shall be deemed and construed to apply only to the design phase of the Project, which is to be performed prior to commencement of the construction phase of the Project. Section 1.1.2 Scope of Design Services. The scope of the design services to be performed by ESCO under this Agreement is described in Exhibit "A." In completing the Scope of Services pursuant to this Article 1, ESCO must at all times work toward assisting the City to achieve the goals as are described in this Agreement and as otherwise may be determined in writing after the Effective Date. Section 1.1.3 Time for Completion. Time is of the essence with respect to this Agreement and the performance by ESCO of each of its obligations pursuant to this Article 1. ESCO must complete the design phase of the Project required pursuant to this Article 1 not later than the final completion date and, if any, the applicable milestone dates specified in the "Services Schedule" set forth in Exhibit "B" attached to this Agreement. However, if, for any reason, the design phase of the Project has not been (or likely will not be) completed prior to the final completion date or an applicable milestone date, with the result that the City continues to require design services in connection with this Agreement, the City may request an extension of the term of this Agreement, and ESCO shall not unreasonably refuse, condition or delay its consent to such request. Upon receipt of any such request, the Parties shall amend this Agreement to extend the term of this Agreement on substantially the same terms as set forth herein, except that the amendment may specify such adjustments to ESCO's compensation as agreed by the Parties. In the event the Scope of Services is modified in accordance with Section 1. 1.7 herein, the amendment to this Agreement providing for such modification shall specify any applicable modification to the time(s) for completion of the design phase of the Project. Section 1.1.4 ESCO Fee. The City shall pay to ESCO, in exchange for full and satisfactory performance by ESCO of the design phase of the Project required pursuant this Article 1, the compensation set forth as the Design Fee in Exhibit "C" attached to this Agreement ("Compensation for ESCO Services"). The Design Fee shall be paid to ESCO upon full and satisfactory completion of the design phase of the Project, as those steps are described in Exhibit "A", attached to this Agreement. In the event the Scope of Services is modified in accordance with Section 1. 1.6 of this Article 1, the amendment to this Agreement providing for such modification shall specify any applicable modification to the Design Fee. The Design Fee shall be deemed and construed for all purposes to be all-inclusive compensation for any and all design services, and ESCO shall in no event be entitled to any reimbursement whatsoever of any expenses or other costs incurred by ESCO in connection with the performance of the design services other than as provided in Section 1.1.5 of this Article 1. Concurrently with signing this Agreement, and as a condition precedent to commencing the performance of the design phase of the Project, ESCO must write its federal taxpayer identification number where shown on the signature page of this Agreement. Section 1.1.5 Reimbursement of Expenses. This Section establishes the sole and exclusive bases for reimbursement to ESCO of any expenses that it incurs in connection with performance of the design phase of the Project. Any reimbursement pursuant to this Section shall be in addition to the design fee payable to ESCO pursuant to Section 1. 1.4 of this Article 1, and shall be for the reasonable, V3 033018 Page 2 Agreement for Turnkey Energy Conservation Services 12 04 2019 actual costs incurred by ESCO, without markup for profit, overhead or other purposes. The City shall reimburse ESCO only for expenses incurred in connection with the performance of the design phase of the Project as the City in its sole discretion may agree, and only if the reimbursement for each such expense is approved in writing by the City prior to the expense being incurred by ESCO. Without limiting the foregoing or the City's discretion as described in the foregoing, because the Design Fee payable to ESCO is intended to be all-inclusive, in no event shall the City be required to reimburse ESCO for any of the following: (i) home office overhead or personnel costs; (ii) supplies, materials, equipment, tools and other items required for performance of the design phase of the Project; (iii) postage or cost of private delivery services less than $25 for any one delivery; (iv) salary, benefits, travel, lodging and/or meal expenses of any person; (v) expenses of overtime work requiring higher than regular compensation rates; or (vi) costs of any additional insurance coverage or limits in excess of that normally carried by ESCO or any of its sub -consultants that perform any of the design services as authorized pursuant to Section 1.2.1 of this Article 1(each a "Sub -Consultant"). Section 1.1.6 ESCO Invoices. City shall compensate ESCO upon successful completion of the Design and Construction Phases, outlined in Exhibit "C". Section 1.1.7 Change in Scope of Services. The City may at any time request any decrease, reasonable increase, or other reasonable change in the Scope of Services to be performed by ESCO pursuant to this Article 1. In response to any such request, ESCO must provide to the City a written proposal that describes in reasonable detail: (i) the change; (ii) the impact of the change on the time required for performance of ESCO's obligations pursuant to this Article 1; and (iii) the impact of the change on the cost to the City for the performance of the design phase of the Project. Each proposal shall set forth any proposed adjustment to the compensation payable to ESCO using such basis (fixed fee, time and materials, etc.) as requested by the City. No proposal shall be valid or binding on the Parties unless and to the extent incorporated into an amendment to this Agreement that has been duly - approved, signed and delivered by both Parties. The Parties shall mutually agree upon the adjustments to the Design Fee attributable to any such deletion from the Scope of Services. Otherwise, if the Parties are unable to agree on and document the terms and conditions for any such deletion, the time for performance of the modified Scope of Services and the compensation to ESCO for performance of such modified Scope of Services shall be equitably adjusted as determined through any dispute resolution method authorized pursuant to this Agreement. However, in no event shall ESCO be entitled to any profit, overhead, or other amounts on account of the deleted portion of the design phase of the Project. PART 1.2: ESCO OBLIGATIONS Section 1.2.1 Consent Required to Use Sub -Consultants. ESCO may use a Sub- Consultant to perform a portion of the design phase of the Project to be provided pursuant to this Article 1. The City, in its sole discretion, may deny, delay or condition its approval of the use of any one or more proposed Sub - Consultants. With respect to any Sub -Consultant that the City may approve pursuant to this Section, and subject to the City's rights pursuant to Section 1.2.3 herein, the City shall not require that ESCO replace or terminate any such Sub -Consultant, and ESCO shall not replace or terminate any such Sub - Consultant: (i) absent reasonable evidence that the Sub -Consultant has failed to timely or adequately perform its obligations in connection with the design phase of the Project; or (ii) unless the Parties agree otherwise in writing. Section 1. 2.2 ESCO and Sub -Consultant Capability. ESCO represents and warrants that: (i) it has any and all licenses as are required by law to permit ESCO to enter into this Agreement and perform the design phase of the Project; (ii) any and all Sub -Consultants performing any of the design services shall be sufficiently skilled and qualified to perform the tasks, duties and responsibilities assigned to them by ESCO, and shall be licensed to practice in their respective professions to the extent required by law; V3 033018 Page 3 Agreement for Turnkey Energy Conservation Services 12042019 (iii) any and all persons who will provide or perform the design services, including, without limitation, all employees of any Sub -Consultants, shall have the technical expertise and experience required to perform the design services in an efficient, timely and satisfactory manner; and (iv) ESCO has sufficient financial, personnel and other resources to adequately and timely perform the design phase of the Project as required pursuant to this Article 1. Upon request of the City, ESCO shall remove from the site of the Project, and prevent from performing any of the design services, any person whom the City has determined is not performing the design services in a reasonable manner or is a threat to the safety of any person(s) or property, and ESCO shall not thereafter use such person for or in connection with performance of any of the design services. Section 1. 2.3 Required Standard of Care. ESCO must perform or cause to be performed all design services using such levels of care as are not less than the reasonable levels of care employed by other consultants providing similar services to Cities within the State of California in similar circumstances, and considering the City's goals and any facilities, financial, or other constraints or parameters described to ESCO either before or after the Effective Date. Section 1. 2.4 Compliance with Law. ESCO must perform the design phase of the Project in compliance with all applicable federal, State of California, and local laws, regulations, ordinances and other governmental requirements. Section 1. 2.5 Prevailing Wages. ESCO shall be solely responsible for determining whether performance of the design phase of the Project will constitute "public work" that is subject to payment of prevailing wages and other requirements of Section 1720 and other provisions of the California Labor Code ("Labor Code"). In such event, ESCO must comply with Part 7, Chapter 1, of the Labor Code, Title 8 of the California Code of Regulations, Section 16000 et seq., and other provisions of law applicable to performance of its obligations under this Agreement Section 1. 2.6 Reliance on City Information. ESCO shall be entitled to rely on the accuracy and completeness of any and all information provided to ESCO by the City, subject to any qualifications or limitations on such information as the City may describe and provided that ESCO may so rely only if it would be reasonable to do so. PART 1.3: ESCO INSURANCE Section 1.3.1 Required Insurance. Prior to commencing any of the ESCO Services, ESCO must procure at its sole cost and expense, and, during all periods as required by this Article 1, must maintain in effect, the following policies of insurance: (1) General Liability Insurance. A policy of commercial general liability insurance, written on an "occurrence" basis, providing coverage with a combined single limit of not less than one million dollars for all activities conducted by ESCO pursuant to this Article 1("General Liability Policy"). The General Liability Policy must include coverage for the contractual liability assumed by ESCO pursuant to this Article 1. (ii) Vehicle Liability Insurance. A policy of automobile liability insurance, written on an "occurrence" basis, with a combined single limit of not less than one million dollars per accident for bodily injury and property damage ("Vehicle Liability Policy"). The Vehicle Liability Policy must include coverage for owned, hired and non -owned automobiles. (iii) Workers' Compensation Insurance. Workers' compensation insurance as required by California law and employer's liability insurance with coverage in an amount not less than one million V3 033016 Page 4 Agreement for Turnkey Energy Conservation Services 12042019 dollars. Notwithstanding the insurer rating standards set forth in this Article 1, coverage provided by the California State Compensation Insurance Fund shall be deemed, with respect to the workers' compensation insurance, to satisfy such insurer rating standards. (iv) Professional Liability Insurance. Professional liability insurance with coverage in an amount of not less than two million dollars ("Professional Liability Policy"), which the City acknowledges shall be written on a "claims made" basis. Section 1. 3.2 Duration of Insurance. Except as provided in this Article 1 with respect to insurance written on a "claims made" basis, ESCO must maintain the insurance required pursuant to this Article 1 in effect at least until the date that is two (2) years following final payment to ESCO pursuant to this Agreement. Section 1. 3.3 Professional Liability Insurance. The Professional Liability Policy shall provide coverage for claims arising out of the performance of the design phase of the Project pursuant to this Article 1. Notwithstanding anything to the contrary: (i) ESCO must have the Professional Liability Policy, as described herein, in full force and effect prior to commencing any of the design services; (ii) each renewal or replacement of the Professional Liability Policy must have a retroactive date that is prior to the date ESCO commenced the design services; and (iii) ESCO must maintain the Professional Liability Policy in full force and effect and applicable to claims arising from the design phase of the Project, without any gaps in coverage, for a period of at least two years following final payment to ESCO pursuant to this Agreement and, if the Professional Liability Policy will not so remain in effect, ESCO must obtain at its cost a supplemental extended reporting period (i.e., tail) applicable to the Professional Liability Policy covering the remainder of such two-year period, and the obligations of this clause (iii) shall survive termination of this Agreement and/or completion of the design phase of the Project. If the claims reporting period applicable to the design phase of the Project, as specified in or determined pursuant to the Professional liability Policy for the design services, will terminate prior to the end of the two-year period following final payment to ESCO pursuant to this Agreement, then ESCO, at its cost, must obtain and provide satisfactory evidence to the City of: (i) an endorsement to extend the claims reporting period to include whatever will remain of such two-year period; or (ii) a supplemental extended reporting period (tail) applicable to the Professional Liability Policy as required to provide coverage until the end of such two-year period. Such tail coverage shall be required, for example: (i) if ESCO intends to switch insurance carriers and the prospective new carrier will not agree to cover claims arising from the design phase of the Project submitted at any time prior to the end of the two-year period following final payment to ESCO pursuant to this Agreement; (ii) if ESCO's business is to be wound- up or otherwise terminated, whether voluntarily or involuntarily; or (iii) when necessary for any other reason to ensure that professional liability insurance applicable to the design phase of the Project is in effect at all times required by this Article 1. Section 1. 3.4 Insurer Rating Standards. Except as the City, in its sole discretion, may approve in writing, in advance, the insurance policies required pursuant to this Article 1 must be issued by one or more insurers licensed to do business in the State of California and having an A.M. Best Company rating of not less than "A-" and a financial size category of not less than "VII." Section 1.3.5 Additional Insureds. The City, the City Council and each individual member thereof, and the City's other officers, board members and commissioners, employees, volunteers, and agents (collectively, not including the City, the "City Agents"), shall all be included as additional insureds, to the extent of ESCO's acts and omissions (regardless of whether constituting negligence) in connection with this Article 1, on all insurance that ESCO is to have in effect pursuant to this Article 1, excepting the workers' compensation insurance and the Professional Liability Policy. The additional insured endorsements must be ISO Form CG 2010 04/13 and ISO Form CG 2037 04/13 combined or equivalent V3 033018 Page 5 Agreement for Turnkey Energy Conservation Services 12.04 2019 approved in advance by the City. Section 1.3.6 Waiver of Subrogation. ESCO hereby waives, on behalf of its insurers, any and all rights to subrogation against the City and the City Agents that any such insurer may acquire by virtue of the payment of any loss. Each of the General Liability Policy, the Vehicle Liability Policy, and Workers Compensation Policy must be endorsed with a cross -liability endorsement and a waiver of the insurer's rights of subrogation against the City and the City Agents. Section 1.3.7 ESCO Insurance is Primary. The General Liability Policy and the Vehicle Liability Policy must be endorsed to provide that they are so primary and non-contributory. Section 1.3.8 Premiums, Deductibles and Self -Insured Retentions. ESCO shall be solely responsible and liable for paying any and all deductibles and self-insured retentions applicable to any of the insurance that ESCO must have in effect pursuant to this Article 1. However, each insurance policy subject to any deductible or self-insured retention shall provide, or be endorsed to provide, for payment or satisfaction of the deductible or self-insured retention by the City in the event of ESCO's insolvency or inability to otherwise pay or satisfy the deductible or self-insured retention. ESCO's indemnification and other obligations pursuant to Section 1.4.lof this Article 1 shall apply with respect to any and all claims arising from such premiums, deductibles, and/or self-insured retentions. Section 1. 3.9 Evidence of Coverage. Prior to commencing the design phase of the Project, ESCO must provide to the City such duly -authorized and executed certificates of insurance evidencing that the insurance policies to be maintained by ESCO pursuant to this Article 1 are in effect (each a "Certificate of Insurance"), together with a copy of each endorsement to such insurance as is required pursuant to this Article 1. The delivery of such Certificates of Insurance and endorsements shall be a condition precedent to ESCO commencing any of the design services. As applicable, the Certificates of Insurance must identify those who are additional insureds in accordance with this Article 1. Not less than thirty (30) days prior to the expiration of any insurance policy that ESCO is required to maintain pursuant to this Article 1, ESCO must provide updated Certificates of Insurance to the City evidencing the renewal of such policy. Section 1.3. 10 Notice of Change in Policies. ESCO shall notify the City within thirty (30) days of its receipt of written notice from an applicable insurer that a policy required hereunder will be canceled, terminated, reduced in coverage, or will expire without renewal, or that a policy has been cancelled due to non-payment of premium. Section 1.3. 11 Review of Coverage. No failure by the City to identify any non-compliance with the requirements of this Part 1.3, shall be deemed or construed to relieve ESCO from any of its obligations in regard to such insurance -related requirements. Section 1.3.12 Sub -Consultant Insurance. ESCO shall require that each of its Sub -Consultants independently comply with all requirements of this Part 1.3 relating to insurance covering their activities for the benefit of the City, unless the City specifically approves in writing some different standards or requirements that shall be applicable to any particular Sub -Consultant. ESCO shall require in its agreements with its Sub -Consultants that each Sub -Consultant be subject to, and that it comply with, the requirements set forth in this Part 1.3, except to the extent the City has approved any different standards or requirements applicable to any particular Sub -Consultant. V3 033018 Page 6 Agreement for Turnkey Energy Conservation Services 12 04 2019 PART 1.4: INDEMNIFICATION Section 1.4.1 Indemnification of City. ESCO shall indemnify and hold -harmless the City, the City Council and each individual member thereof, and the City's other officers, board members and commissioners, employees, volunteers and agents (collectively, not including the City, the "City Agents"), and each of them, against and from any and all third party claims, demands, actions, judgments, damages, losses, costs and expenses (including, without limitation, attorneys' fees and expenses) and other liabilities including, but not limited by, those arising from (i) the performance of design services by ESCO or any Sub -Consultant or the officers, employees, or agents of either (collectively, not including ESCO, the "Sub -Consultant Agents"); and (ii) the injury (including death) of any person or the damage to any property in connection with the design phase of the Project. The scope of the foregoing shall include, without limitation, any disputes of any nature between ESCO and any of the Sub -Consultant Agents. Section 1. 4.2 Defense of City. ESCO, at its cost and expense, shall defend the City, and, as applicable, the City Agents, with respect to any claim, demand, action, or other proceeding that is within the scope of ESCO's indemnification obligation pursuant to Section 1.4.1 of this Article 1. Each such defense must be conducted by qualified and appropriately experienced legal counsel reasonably acceptable to the City, but selected and retained by ESCO, at no cost to the City or any of the City Agents. Section 1. 4.3 Limitation on ESCO Obligations. ESCO shall not be obligated pursuant to Sections 1.4.1 and 1.4.2 of this Article 1 to the extent any claim, demand, action, judgment, damage, loss, cost or expense, or other liability results from the active negligence, sole negligence, or willful misconduct of the City or any of the City Agents. Section 1. 4.4 Applicability of Civil Code Section 2782.8. To the extent ESCO or any Sub - Consultant, as part of the design phase of the Project, will provide "design professional services" that are within the scope of Civil Code Section 2782.8, Sections 1.4.1through 1.4.3, inclusive, of this Article 1 shall be interpreted consistent with Civil Code Section 2782.8 as it exists as of the Effective Date, and, with respect to such design professional services, the obligation to indemnify the City and the City Agents shall relate only to matters arising from the negligence, recklessness, or willful misconduct of ESCO or any of the Sub -Consultant Agents. Section 1. 4.5 Notice of Potential Liabilities. The City shall promptly provide written notice to ESCO of any liabilities for which ESCO may be responsible pursuant to this Part 1.4, and, to the extent reasonable and at ESCO's cost, the City shall cooperate with ESCO in regard to the performance of its obligations pursuant to this Part 1.4. Section 1. 4.6 Payment of Costs. ESCO shall reimburse to the City, or upon request of the City shall directly pay, any and all costs, expenses, penalties, judgments, settlements, and other amounts paid or owed by the City that are payable by ESCO pursuant to the indemnity provisions of this Article 1. ESCO must pay each such amount not later than when the amount is due or within thirty (30) days of receipt of a written invoice from the City requesting payment, and any late payments by ESCO shall accrue interest at the maximum legal rate. Section 1.4.7 Insurance Not a Limitation. The obligations of ESCO pursuant to this Part 1.4 shall not be deemed or construed to be: (i) conditioned upon or in any other manner limited by the existence of any insurance coverage maintained by a Party or other person or entity; or (ii) conditioned upon the receipt by any person or entity of, or limited to the amount of, any insurance proceeds. V3 033018 Page 7 Agreement for Turnkey Energy Conservation Services ]2.0420]9 Section 1. 4.8 Sub -Consultant Indemnity. ESCO shall require in its agreements with its Sub - Consultants that each Sub -Consultant independently comply with all requirements of this Part 1.4 related to indemnifying, holding -harmless, and defending the City, unless and only to the extent the City specifically approves in writing some different standards or requirements that shall be applicable to any particular Sub -Consultant. Section 1. 4.9 Indemnification of ESCO. Subsection 1.4.9.1 General Requirement. The City shall indemnify and hold harmless ESCO and the Sub -Consultant Agents, and each of them, against and from any and all claims, demands, actions, judgments, damages, losses, costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) and other liabilities arising from the sole negligence, active negligence or willful misconduct of the City or any of the City Agents in connection with the performance of the design phase of the Project. Subsection 1.4.9.2 Defense of ESCO. The City, at its cost and expense, shall defend ESCO and, as applicable, the Sub -Consultant Agents with respect to any claim, demand or action that is within the scope of the City's indemnification obligation pursuant to Subsection 1.4.9.1 of this Article 1. Each such defense must be conducted by qualified and appropriately experienced legal counsel reasonably acceptable to ESCO, but selected and retained by the City, at no cost to ESCO or Sub - Consultant Agents. Section 1.4.10 Comparative Liability. Notwithstanding the foregoing provisions of this Part 1.4, to the extent any claim, demand, action, judgment, damage, loss, cost or expense, or other liability arising in connection with this Article 1 is to some extent within the scope of ESCO's obligations pursuant to Section 1.4.1 of this Article 1, and to some extent is within the scope of the City's obligations pursuant to Subsection 1.4.9.1 of this Article 1, then, with respect to such liability, the Parties shall be responsible and liable on a comparative basis. Section 1.4. 11 Survival of Obligations. With respect to any and all acts, omissions or incidents occurring prior to completion of the design phase of the Project and/or termination of this Agreement, the Parties' respective rights and obligations pursuant to this Part 1.4 shall survive such completion and/or termination. PART 1.5: TERMINATION OF SOME OR ALL OF THE DESIGN SERVICES Section 1.5.1 City Termination for Convenience. The City, without need for cause, may terminate some or all of the design services, or upon the completion of the design phase of the Project may terminate this Agreement in its entirety, by providing written notice of termination to ESCO. Such termination shall be effective immediately upon receipt of the notice of termination by ESCO. In the event the City terminates this Agreement in its entirety pursuant to this Section, the City shall have the right to retain a contractor other than ESCO to perform any or all of the services contemplated in the construction phase of the Project. Section 1. 5.2 City Termination for Breach of Warranties. If the City at anytime determines that any of the representations and/or warranties of ESCO set forth in this Article 1 are materially untrue or incorrect, and if ESCO fails to correct or remedy such breach within a reasonable period of time, then the City shall have the right to terminate this Agreement immediately and without liability (including, without limitation, any liability for paying any further compensation to ESCO), and ESCO shall be liable to the City for all costs, expenses, and damages arising therefrom. ESCO's representations and warranties pursuant to this Article 1 shall survive termination of this Agreement, regardless of whether at such time ESCO has V3 033018 Page 8 Agreement for Turnkey Energy Conservation Services 12042019 fully completed the design phase of the Project. Section 1. 5.3 City Termination for Cause. In addition to other termination rights it may have pursuant to this Agreement, the City may give ESCO written notice of the City's intent to terminate this Agreement for cause if the City reasonably determines that ESCO has failed to perform some or all of the design services in a satisfactory and timely manner or if ESCO otherwise has breached any of its obligations pursuant to this Agreement. ESCO must cure such failure or breach, or make arrangements satisfactory to the City for cure of such failure or breach, within the time permitted pursuant to Section 1.6.1 herein and, if ESCO does not, the City may terminate this Agreement by giving written notice of termination to ESCO, and the termination shall be effective immediately upon receipt of the notice of termination by ESCO. Nothing in this Agreement shall be deemed or construed as a waiver by ESCO of any rights it may have in regard to a wrongful termination by the City. Section 1. 5.4 ESCO Termination for Cause. ESCO may give the City written notice of ESCO's intent to terminate this Agreement for cause if ESCO reasonably determines that the City has breached any of its material obligations pursuant to this Article 1. The City must cure such breach, or make arrangements satisfactory to ESCO for cure of such breach, within the time permitted pursuant to Section 1.6.1 herein and, if the City does not, ESCO may terminate this Agreement by giving written notice of termination to the City, and the termination shall be effective immediately upon receipt of the notice of termination by the City. Nothing in this Agreement shall be deemed or construed as a waiver by the City of any rights it may have in regard to a wrongful termination by ESCO. Section 1. 5.5 Compensation to ESCO upon Termination. Subject to all other provisions of this Agreement, in the event of any termination, the City shall compensate ESCO consistent with Sections 1.1.3, 1.1.4 and 1.1.5, inclusive, of this Article 1, and Exhibit "C" hereto: (i) for those of the design services as have been fully and satisfactorily completed prior to termination; and (ii) for design services in progress by ESCO and any of its Sub -Consultants at such time, including any profit or overhead attributable to such work in progress. Section 1. 5.6 ESCO to Provide Copies of Project Documents. Not later than sixty (60) days following the effective date of a termination pursuant to this Part 1.5, regardless of the reason for such termination, ESCO must provide to the City copies of all Project Documents (defined in Subsection 3.4.2 of Article 3) relating to the terminated portion of the design services. Satisfaction of ESCO's obligations pursuant to this Section shall be a condition precedent to the City's obligation to pay any compensation or reimbursement to ESCO pursuant to Section 1.5.5 of this Article 1 or other provisions of this Agreement. Section 1. 5.7 Survival of Obligations. The Parties' respective rights and obligations pursuant to this Part 1.5 shall survive termination of this Agreement. PART 1.6: DISPUTE RESOLUTION Section 1.6.1 Notice and Opportunity to Cure. If one of the Parties (the "Alleging Party") alleges that the other Party (the "Defaulting Party") has breached any of its obligations pursuant to this Article 1, the Alleging Party may provide written notice thereof to the Defaulting Party, specifying in reasonable detail the nature and extent of the alleged default ("Notice of Default"). If the Defaulting Party has not cured the alleged default within thirty (30) days after receipt of the Notice of Default, then the Alleging Party in its discretion may initiate the dispute resolution process described in Section 1.6.2 of this Article 1. The giving of a Notice of Default and allowing the period for cure of the alleged default in accordance with this Section 1.6.1 shall be a condition precedent to the Alleging Party exercising any available remedy in response to the alleged default. Nothing shall be construed to prohibit the V3 033018 Page 9 Agreement for Turnkey Energy Conservation Services 12 04 2019 Defaulting Party from disputing that a default has occurred. Neither the giving of any Notice of Default, nor the initiation by the Alleging Party of any dispute resolution in connection with the alleged default, shall by itself operate to terminate this Agreement. Section 1. 6.2 Informal Attempts at Dispute Resolution. If a dispute between the Parties arises out of or relates in any way to the design phase of the Project pursuant to this Article 1, including an allegation that one of the Parties has breached any of its obligations pursuant to this Article 1 (each a "Dispute"), the Parties shall attempt as provided in this Section to resolve the Dispute as quickly and as amicably as possible, including, without limitation, any Disputes as to the meaning of any provision of this Article 1, the validity of any determination or calculation required pursuant to this Article 1, or the rights or obligations of the Parties pursuant to this Article 1. If the Dispute does not relate to an alleged default or is not of such nature that a Party may give a Notice of Default, then the Party alleging the Dispute shall give to the other Party a written notice of the Dispute ("Notice of Dispute"). Within a reasonable time, not in excess of fourteen (14) calendar days, after receipt of a Notice of Dispute, the Parties shall commence attempts to informally resolve the Dispute as required pursuant to this Section. Such attempts shall include good -faith, reasonable and diligent efforts by both Parties to communicate and, if possible, to reconcile or compromise their respective positions. The participation by a Party in such attempts to informally resolve a Dispute shall be a condition precedent to such Party exercising any available remedy in response to the Dispute. If, after diligently making the attempts required pursuant to this Section for at least thirty (30) calendar days, the Parties cannot resolve Dispute, either Party may give written notice to the other Party that the attempts have been unavailing and, therefore, have been terminated effective upon receipt of that notice by the other Party. Section 1. 6.3 Exercise of Available Remedies. If attempts to resolve a Dispute pursuant to Section 1.6.2 of this Article 1 are terminated without the Dispute having been resolved to the satisfaction of either Party, the Alleging Party may initiate any legal or equitable action or other proceeding in response to the Dispute that is available pursuant to this Agreement and applicable law. In addition, however, if a Party fails to respond to, or participate in good faith in, any requests or requirements for resolution of the Dispute pursuant to Section 1.6.2 of this Article 1, the other Party, in its discretion and without needing to further comply with Section 1.6.2 of this Article 1, may initiate any legal or equitable action or other proceeding in response to the Dispute that is available pursuant to applicable law. However, in any case in which a Notice of Default has been provided pursuant to Section 1.6.1 of this Article 1, no such legal or equitable action may be initiated until the applicable period specified in Section 1.6.1 of this Article 1for cure of the alleged default has expired without the alleged default having been cured. Section 1. 6.4 Performance During Disputes. At all times while any Dispute is pending, each Party shall continue to fully perform its obligations pursuant to this Article 1 and the other provisions of this Agreement. Notwithstanding the foregoing, a Party shall not be responsible for continued performance of such obligations to the extent a default or alleged default by the other Party makes performance impossible, impractical, or unreasonable. Section 1. 6.5 Remedies Not Limited. In connection with any Dispute, and except as expressly provided in this Article 1, each Party may exercise any or all rights and remedies available pursuant to applicable law. No such available remedy shall be deemed or construed to be exclusive, and a Party may exercise any available remedy individually or in combination with any other available remedies. V3 033016 Page 10 Agreement for Turnkey Energy Conservation services 12 04 2019 ARTICLE 2 CONSTRUCTION PHASE OF THE ESCO SERVICES PART 2.1: SCOPE, TIMING AND COMPENSATION Section 2.1.1 Scope of Article 2 Requirements. Except to the extent terms are defined in this Article 2 and used elsewhere in this Agreement and except as may be expressly provided in this Agreement, this Article 2 shall be deemed and construed to apply only to the construction phase of the Project. Section 2.1.2 Scope of Work. The scope of construction services to be performed by ESCO pursuant to this Article 2 is described generally in Exhibit "D" attached to this Agreement. The Parties shall determine the precise scope of the construction phase of the Project in conjunction with completion of the design phase. Subcontractors shall be selected by ESCO, subject to the City's approval. Subject to the City issuing a notice to proceed with the construction phase ("Notice to Proceed"), ESCO must complete the construction services in strict accordance with the Construction Documents (defined in Subsection 2.1.3.2. of this Article 2). Section 2.1.3 Component Parts of Contract. Subsection 2.1.3.1 Payment and Performance Bonds. ESCO shall provide payment and performance bonds for 100% of the sum required to secure the faithful performance of the construction phase of the Project, compliance with the terms of this Contract, and to insure ESCO'S payment obligations to its Subcontractors and suppliers related to the construction phase. Notwithstanding any provision to the contrary herein, any payment and performance bonds associated with the construction phase guarantee only the performance of the construction phase, and shall not be construed to guarantee the performance of: (1) any efficiency or energy savings guarantees, (2) any support or maintenance service agreement, or (3) any other guarantees or warranties with terms beyond one (1) year in duration from the completion of the construction phase. Subsection 2.1.3.2 Construction Documents. This Agreement is but one of the agreements and other documents that, collectively, set forth the complete understanding and agreement of the Parties with respect to the performance of the construction phase of the Project. Each Agreement and other such documents (together, the "Construction Documents"), as those may be duly made or amended from time to time, is hereby incorporated as an operative and effective part of this Agreement. The Construction Documents include, but are not limited to: (i) this Agreement; (ii) any and all drawings, plans, elevations, sections, details, schedules and diagrams approved by the City that illustrate any or all of the construction phase and the written requirements approved by the City for materials, equipment, construction systems, quality workmanship, services and other things to be furnished in connection with the construction phase of the Project ("Specifications"); (iii) any and all Required Construction Forms; and (iv) any duly -authorized agreements or orders providing for changes in the scope of the construction phase. Subsection 2.1.3.3 Complementary Nature. The Construction Documents shall be deemed and construed to be complementary and an integrated whole. Any requirement or provision set forth in one Construction Document, although not set forth in any one or more of the other Construction Documents, shall be interpreted as if set forth in or applicable to all Construction Documents. V3 033018 Page 11 Agreement for Turnkey Energy Conservation Services 12 04 2019 Section 2.1.4. Commencement and Completion of the Construction Phase. Subsection 2.1.4.1 Scheduling Goals. ESCO acknowledges that the City will schedule the construction phase for a specific period of time, in order to promote the best usage of City facilities. ESCO further acknowledges that compliance with scheduling requirements for the construction phase as provided herein, or as directed by the City, is mandatory in order to accomplish such goals and, therefore, that time is of the essence with respect to the performance of the construction phase. Subsection 2.1.4.2 Construction Time. ESCO must commence the construction phase not later than the date(s) specified by the City as the date by which ESCO must commence the construction phase ("Commencement Date"). ESCO must fully and satisfactorily complete all of the construction services not later than the date(s) specified by the City as the date by which ESCO must complete the construction phase ("Completion Date"). ESCO must commence and proceed with the construction phase with continuous reasonable diligence to ensure full and satisfactory completion of all of the construction services within the period between such stated Commencement Date and such stated Completion Date (such period referred to herein as the "Construction Time"). Upon the mutual agreement of the Parties as to the final scope of the construction phase, the Parties shall cooperate in developing a milestone schedule, within ten (10) days after the Notice to Proceed, that is reasonably acceptable to both Parties and that provides for completion of the Project by each milestone and all Work not later than the Completion Date, while still accommodating the City's operations at the Project Site(s). Upon the Parties agreeing on such schedule, it shall be deemed and construed to be part of this Agreement without need for further action by the Parties. The schedule developed by the Parties shall set forth the Commencement Date and the Completion Date for the Project. The Construction Time may be extended as provided in the Construction Documents or as the Parties otherwise may agree in writing, including, without limitation, to account for unanticipated delays. Subsection 2.1.4.3 "Substantial Completion" refers to and shall mean the date the individual scopes of work are sufficiently implemented in accordance with the Construction Documents that Customer may utilize the Project for the use for which it is intended, and is fully complete except for minor items, adjustments and/or corrections. Subsection 2.1.4.4 Acceptance upon Final Completion. The work encompassed within the construction phase of Project is subject to acceptance by the City Council as of the date of the regularly -scheduled meeting of the City Council following the determination by the City, in its reasonable discretion, that ESCO has fully and satisfactorily completed all of the construction phase ("Project Acceptance Date"). Subsection 2.1.4.5 Notice to Proceed. ESCO acknowledges and agrees that the City is not bound to proceed with the construction phase set forth in this Article 2, and, upon completion of the design phase provided for in Article 1, or at any other time as set forth in Article 1, the City, based on its judgment and at its sole discretion, may terminate this Agreement, compensate ESCO for the Design Fee, and choose not to proceed further with the Project. The terms and conditions set forth in this Article 2 shall go into effect upon the issuance of a written Notice to Proceed by the City. Section 2.1.5. Compensation to ESCO. Subsection 2.1.5.1 Construction Fee. The compensation payable to ESCO for the construction phase shall not exceed a specific maximum amount in exchange for which, as described in more detail in Subsection 2.1.5.3 herein, ESCO guarantees that it will perform all of its obligations pursuant to this Article 2 in strict accordance with the Construction Documents (the "Construction Fee"). As set forth in Exhibit "C" to this Agreement, the Construction Fee shall be agreed upon by the Parties prior to the issuance of any Notice to Proceed. ESCO will deliver to City a final scope and firm fixed price proposal for that scope at the completion of the design phase of the Project. Upon City approval of that proposal, City will issue a Notice to Proceed. V3 033018 Page 12 Agreement for Turnkey Energy Conservation Services 1104 2019 Subsection 2.1.5.2 Adjustment and Payment of the Construction Fee. The Construction Fee shall be subject to increase and/or decrease as provided in the Construction Documents. The City shall pay the total amount of the adjusted Construction Price to ESCO, in progress payments no more than monthly following issuance of the Notice to Proceed. In no event shall the sum total of the progress payments payable to ESCO pursuant to this Agreement exceed the adjusted Construction Price. Upon completion of the construction phase, ESCO shall provide a "final payment request" to the City that establishes the total cost of construction services as adjusted pursuant to the Construction Documents. Subsection 2.1.5.3 Limitation on Compensation. The City's sole and exclusive liability to ESCO for full and satisfactory performance of its obligations pursuant to this Article 2 and the Construction Documents shall be deemed and construed to be limited to an amount equal to the Construction Price as it may be adjusted in accordance with the Construction Documents. ESCO hereby represents and guarantees that it can and shall satisfactorily and completely perform all of its obligations pursuant to this Article 2, including, without limitation, performing all construction services in strict accordance with the Construction Documents, without seeking funds from the City in excess of the Construction Price or requesting a redesign or change in scope of the construction phase in order to reduce ESCO's costs, and regardless of any anticipated or unanticipated increases in costs of labor, materials, equipment, or other services or things necessary in connection with the construction phase of the Project, other than as set forth in this Agreement. ESCO shall be solely responsible for any and all costs it incurs in performing its obligations pursuant to this Article 2 and the Construction Documents that are in excess of the adjusted Construction Price, without right to reimbursement from the City. Thus, the Parties have entered into this Agreement with the understanding that the Agreement shall be deemed or construed to be a "fixed price" contract. Nothing in this Subsection 2.1.5.3 shall be deemed or construed to limit or otherwise condition ESCO's obligations pursuant to this Article 2. PART 2.2: ESCO INSURANCE Section 2.2.1 ESCO Insurance. ESCO must comply with the insurance -related requirements set forth in Exhibit "F" attached to this Agreement. Without limiting the foregoing, prior to commencing the construction phase of the Project, ESCO must obtain and have in effect each and every policy of insurance required pursuant to Exhibit "F" (each an "Insurance Policy" and, collectively, the "Insurance Policies"). ESCO must also ensure compliance by its subcontractors with the applicable provisions of such insurance -related requirements. Except as provided in Exhibit "F" hereto or as the City may expressly consent in writing, ESCO and each of its subcontractors must maintain required Insurance Policies in full force and effect at all times prior to the Project Acceptance Date. PART 2.3: COMPLIANCE WITH LABOR LAW REQUIREMENTS Section 2.3.1 Compliance Generally. In connection with the performance of the construction phase of the Project, ESCO and each of its subcontractors must comply with all requirements of the Labor Laws (defined in 2.3.2). The City will coordinate and conduct any mandatory pre -construction conference, and ESCO and each of its subcontractors must attend the conference in order to ensure they are aware of applicable labor -law requirements. Section 2.3.2 Compliance with Labor Code Requirements. The Project is a "public works project" as defined in Section 1720 of the California Labor Code ("Labor Code") and, therefore, is subject to Part 7, Chapter 1, of the Labor Code and Title 8 of the California Code of Regulations, Section 16000 et seq. (collectively, "Labor Laws"). ESCO must be, and shall be deemed and construed to be, aware of and understand the requirements of Labor Code Sections 1720 et seq. and 1770 et seq., and other V3 033018 Page 13 Agreement for Turnkey Energy Conservation Services 12.04 2019 provisions of the Labor Laws that require the payment of prevailing wage rates and the performance of other requirements on public works projects. ESCO acknowledges that the Project will be subject to compliance monitoring and enforcement by the California Department of Industrial Relations ("DIR"). ESCO, at no additional cost to the City, must: (i) comply with any and all applicable requirements of the Labor Laws, including, without limitation, requirements for payment of "prevailing wages," inspection, and submittal (electronically, as required) of payroll records, interviews of worker(s),etcetera; (ii) ensure that any and all of its Sub -contractors are aware of and comply with applicable provisions of the Labor Laws; (iii) in connection with Labor Laws compliance matters, cooperate with the DIR, the City and other entities with competent jurisdiction; and (iv) post all job -site notices required by law in connection with ESCO Services, including, without limitation, postings required by DIR regulations. ESCO or an ESCO subcontractor that has been debarred in accordance with the Labor Code, including, without limitation, pursuant to Sections 1777.1 or 1777.7, is not eligible to bid on, perform, or contract to perform any portion of the ESCO Services. Wage rates for the ESCO Services shall be in accordance with the general prevailing rates of per -diem wages determined by the DIR pursuant to Labor Code Section 1770. Wage rates shall conform to those on file at the City's principal office and posted at the Project Site. The City will withhold payment to ESCO necessary to satisfy civil wage and penalty assessment issued by the Labor Commissioner. The following Labor Code sections, as may from time to time be amended, are by this reference incorporated into and are a fully operative part of Article 1 of this Agreement, and ESCO shall be solely responsible for compliance therewith: (i) Section 1735: Anti -Discrimination Requirements; (ii) Section 1775: Penalty for Prevailing Wage Rate Violations; (iii) Section 1776: Payroll Records; (iv) Sections 1777.5, 1777.6 and 1777.7: Apprenticeship Requirements; (v) Sections 1810 through 1812: Working Hour Restrictions; (vi) Sections 1813 and 1814: Penalty for Failure to Pay Overtime; and (vii) Section 1815: Overtime Pay. Section 2.3.3 Requirements for Payroll Records. ESCO must comply with all applicable provisions of Labor Code Section 1776, which relates to preparing and maintaining accurate payroll records, and making such payroll records available for review and copying by the City, the DIR's Division of Labor Standards Enforcement, and the DJR's Division of Apprenticeship Standards ("DAS"). The payroll records must be certified, maintained at the principal offices of ESCO, and made available as required by Labor Code Section 1776. ESCO must inform the City of the location at which the payroll records are located, including the street address, city and county, and must, within five (5) working days, provide a notice of any change of location and address. ESCO or an ESCO subcontractor that fails to timely comply with requests for certified payroll records, shall forfeit, as a penalty to the City, $100 for each calendar day, or portion thereof, for each worker, until strict compliance is effectuated, and, in addition to penalties as provided by law, may be subject to debarment pursuant to Labor Code Section 1771.1. Timely provision by ESCO of certified payroll records also shall be a condition precedent to the City's obligation to make any payments to ESCO pursuant to either Article 1 or Article 2 of this Agreement. Section 2.3.4. Penalties for Violations of Prevailing Wage Laws. In accordance with the latest Section 1775 of the Labor Code, ESCO shall forfeit, as a penalty to the City, not more than $200 and, subject to limited exceptions, not less than certain amounts specified by law, for each calendar day, or portion thereof, for each worker paid less than prevailing wage rates as determined by the DIR Director. ESCO shall pay to each worker the difference between such stipulated prevailing wage rate and the amount paid to the worker for each calendar day or portion thereof for which the worker was paid less than the applicable prevailing wage rates. V3 033018 Page 14 Agreement for Turnkey Energy Conservation Services 12 04 2019 Section 2.3.5. Requirements for ESCO Registration. No contractor may bid on a public works project unless the contractor is, and no subcontractor may be listed in any bid for a public works project unless the subcontractor is, currently registered with the DIR and qualified to perform public work pursuant to Labor Code Section 1725.5. In addition, no contractor or subcontractor may be awarded a contract for work on a public works project, or may perform any work on a public works project, unless the contractor or subcontractor is currently registered with the DIR and qualified to perform public work pursuant to Labor Code Section 1725.5. It is not a violation of Labor Code Section 1725.5 for an unregistered contractor to submit a bid authorized by Business and Professions Code Section 7029.1 or Public Contract Code Section 20103.5, if the contractor is registered at the time the contract is awarded. Section 2.3.6. Registration Requirements Applicable to Project. ESCO shall be responsible for ensuring that it and all ESCO subcontractors are currently and properly registered with the DIR and qualified to perform public work pursuant to Labor Code Section 1725.5. Prior to commencing the ESCO Services: (i) ESCO must complete, execute, and submit to the City the "Certification Regarding ESCO Registration" form; and (ii) provide to the City the evidence of registration as described in the Certification Regarding ESCO Registration form. Notwithstanding anything to the contrary, if at any time during the performance of the ESCO Services, ESCO or any of its subcontractors is not duly registered pursuant to Labor Code Section 1725.5 (including, without limitation, if the registration expires or the DIR revokes the registration), the City in its sole discretion may terminate this Agreement without penalty and/or replace ESCO or an ESCO-subcontractor with a contractor or subcontractor that is duly registered pursuant to Labor Code Section 1725.5. PART 2.4: ADMINISTRATION OF ARTICLE 2 Section 2.4.1 Regular Working Hours. Except as the City, in its sole discretion, may agree, ESCO shall perform the portions of the construction phase that are to occur at or in the vicinity of the Project Site(s) only: (i) on weekdays (i.e., any day, Monday through Friday, inclusive); and (ii) commencing at or after such time, and ending by or prior to such time, as may be specified in either an applicable local ordinance or any "Mitigation Monitoring Plan" adopted by the City pursuant to the California Environmental Quality Act, whichever is more restrictive. Section 2.4.2 Taxes. The Construction Price shall be deemed and construed to include compensation to ESCO for any and all duties, sale, use, excise or other similar taxes required by federal, state or local laws in effect as of the Effective Date or promulgated thereafter, and payable in connection with the construction phase of the Project. PART 2.5: ESCO STATUS Section 2.5.1 Standard of Performance. ESCO represents and warrants that it and the subcontractors hired by ESCO have the professional skill, knowledge and experience necessary to perform and complete the construction phase of the Project within the Construction Time. ESCO shall apply such skill, knowledge and experience in the completion of the Project, at a minimum level at least equal to that expected generally of professionals employed in construction of facilities within the State of California. ESCO shall perform and complete the construction phase in accordance with standards not less than established by applicable laws, rules and regulations, industry and trade association standards, manufacturers' recommendations, and, if any, community or area standards. ESCO represents and warrants that all of its employees and subcontractors shall have sufficient skill, knowledge and experience to perform the construction services that will be assigned to them. Section 2.5.2 Licenses. ESCO represents and warrants that it currently has, and that it shall maintain until completion and acceptance of the Project by City all licenses, permits, qualifications and V3 033018 Page 15 Agreement for Turnkey Energy Conservation Services 12.04 2019 approvals of whatever nature as are legally required to permit ESCO to perform the construction services required pursuant to the Agreement and to complete the Project. PART 2.6: EMPLOYEES AND SUBCONTRACTORS Section 2.6.1 Job Superintendent. ESCO shall have present on the Project Site(s) during the course of the construction phase of the Project an experienced and competent superintendent and any necessary assistants, all satisfactory to the City, who shall supervise the construction services and the ESCO's employees and subcontractors on the Project. Section 2.6.2 ESCO's Employees. The employees of ESCO shall at all times be under the ESCO's exclusive direction and control on the Project. ESCO shall pay all wages, salaries, and other amounts due to such personnel in connection with their performance of construction services, as required by law. ESCO shall be responsible for all reports and obligations respecting such personnel, including, but not limited to: social security taxes, federal and state income tax withholdings, unemployment insurance, and workers' compensation insurance. ESCO shall employ only competent workers for performance of the construction services and shall not employ any person who is unfit or unskilled in the work assigned to him or her. ESCO shall at all times enforce strict discipline and good order among its employees and any and all subcontractors' employees performing any portions of the construction services. ESCO shall supervise and control its employees and all subcontractors' employees performing any portions of the construction phase of the Project to ensure adequate performance and discipline. ESCO shall immediately remove from the Project and Project Site(s) any person, regardless of whether employed by ESCO or any subcontractor, who is determined by the City to be uncooperative, incompetent, or a threat to the safety of persons or the Project, or who fails or refuses to perform the construction services in a manner acceptable to the City. ESCO shall not thereafter suffer or permit any such person to perform any of the construction services or to be present on or at the Project Site(s). Section 2.6.3 Prohibition Against Unlawful Discrimination. ESCO represents and warrants that it is an equal opportunity employer and it shall not discriminate in violation of any applicable federal State, or other law, rule, regulation, or governmental requirement, including, but not limited to discrimination against any employee or applicant for employment on account of such person's race, religion, color, national origin, ancestry, sex, or age. ESCO must apply such policy of non-discrimination in connection with all activities related to initial employment, promotion, demotion, transfer, recruitment or recruitment advertising, layoff or termination of ESCO's employees or any subcontractors. Section 2.6.4 Responsibility for Subcontractors. ESCO shall be responsible for ensuring that all portions of the construction phase performed by its subcontractors conform with all requirements of the Construction Documents and applicable law. ESCO shall immediately remove from the Project and Project Site(s) any subcontractor that the City determines is uncooperative, incompetent, or a threat to the safety of persons or the Project, or that fails or refuses to perform the construction services in a manner acceptable to the City. Section 2.6.5 Subcontractor Insurance. ESCO shall ensure and verify that its subcontractors obtain and maintain all necessary liability and other insurance as required pursuant to this Agreement, the Construction Documents, and/or by law. V3 033018 Page 16 Agreement for Turnkey Energy Conservation Services 12.04.2019 PART 2.7 PAYMENTS Section 2.7.1 Payments to ESCO may be taken from an escrow account or any other available funds. ESCO may submit "Payment Request Forms" and payments shall be made to ESCO by City on a monthly basis during construction. City shall promptly request payment to ESCO from escrow agent or city personnel in an amount equal to the value of services rendered since the last interim payment as shown on the Schedule of Values provided during installation. If any payment is over thirty (30) days late from the due date stated on the invoice, Customer shall pay to ESCO a 1 % late penalty per month and ESCO reserves the right to terminate this Agreement due to non-payment upon seven (7) days prior written notice to City. Section 2.7.2 Within thirty (30) days of the Date of Commencement, City shall make payment to ESCO for expenses incurred to date and project mobilization expenses, including but not limited to engineering, project start-up and mobilization, equipment and material procurement, bonds and other expenses incurred to date ("Project Mobilization Payment") in the amount of not to exceed 20% of the implementation contract payment total of the Contract Sum as provided for on the Project Mobilization Payment invoice attached hereto as Exhibit "J" and made a part hereof. Section 2.7.3 For the initial one (1) year beginning at the Savings Guarantee Commencement Date, City shall receive the services as described in the Performance Assurance Support Services Agreement ("PASS Agreement") (Exhibit "G") at no additional cost. Thereafter, the PASS Agreement shall automatically renew for a period of one (1) year, whereby City can maintain the current service or upgrade the level of service as provided for in Exhibit "G". Section 2.7.4 Payments may be withheld on account of (1) Defective Work not remedied, (2) claims filed by third parties, (3) failure of ESCO to make payments properly to its subcontractor(s) or for labor, materials or equipment, or (4) repeated failure to carry out the Work in accordance with the Construction Documents. Section 2.7.5 Final payment shall not become due until ESCO has delivered to City a complete release of all liens arising out of this Agreement covering all labor, materials, and equipment for which a lien could be filed, or a bond satisfactory to City to indemnify City against such lien. Section 2.7.6 The making of final payment to ESCO shall constitute a waiver of claims by City except those arising from (1) liens, claims, security interests or encumbrances arising out of the Contract and which are unsettled, (2) failure of the Work to comply with the requirements of the Construction Documents, or (3) terms of special warranties required by the Construction Documents, PART 2.8: PERFORMANCE SERVICES Section 2.8.1 For the initial one (1) year beginning at the first day of the first utility billing period following the month in which ESCO delivers to City the Project completion letter ("Savings Guarantee Commencement Date"), City shall receive the services as described in the Performance Assurance Support Services Agreement ("PASS Agreement') accompanying this Agreement at no additional cost. Thereafter, the PASS Agreement shall automatically renew for a period of one (1) year, whereby City can maintain the current service or upgrade the level of service as provided for in Exhibit "G» V3 033018 Page 17 Agreement for Turnkey Energy Conservation Services 12 04 2019 Section 2.8.2 If City (1) fails or neglects to maintain City responsibilities as set forth in Exhibit J, or (2) fails to fulfill any of its other obligations or responsibilities under the Construction Documents, ESCO may, after delivery of written notice and providing City seven (7) days to cure, terminate the Agreement, including, but not limited to the termination of any obligation of ESCO to provide the Performance Guarantee, as defined in Subsection 2.8.2.3. below. Subsection 2.8.2.1 "Annual Savings Guarantee" is the amount of energy savings guaranteed by ESCO for a twelve (12) month period beginning on the Savings Guarantee Commencement Date and any subsequent twelve (12) month anniversary thereafter. Subsection 2.8.2.2 "Guarantee Year" is the twelve (12) month period beginning on the Savings Guarantee Commencement Date and each subsequent twelve (12) month anniversary thereafter. Subsection 2.8.2.3 "Performance Guarantee" is the sum of the Annual Savings Guarantee for each year of the guarantee term as set forth in Exhibit "H" or unless terminated earlier in accordance with the Construction Documents. Subsection 2.8.2.4 "Savings Guarantee Commencement Date" means the first day of the first utility billing period following the month in which ESCO delivers to City the Project completion letter. ARTICLE 3 MISCELLANEOUS PART 3.1 WARRANTY Section 3.1.1 ESCO warrants to City for a period of one (1) year from the corresponding dates of Substantial Completion that the materials and equipment provided by ESCO will be of good quality and new unless the Construction Documents require or permit otherwise, and further warrants that the Work will conform to the requirements of this Agreement and the Construction Documents and will be free from defects, except for those inherent in the quality of the Work the Construction Documents require or permit (the "Warranty Period'). Work, materials, or equipment not conforming to these requirements may be considered defective. ESCO'S warranty excludes remedy for damage or defect caused by abuse, alterations to the Work not executed by or for ESCO, improper or insufficient maintenance, improper operation, or normal wear and tear and normal usage. ESCO shall repair or replace defective material or equipment and re -perform Work to correct any defect within the Warranty Period. In the event warranty work by ESCO is necessary, ESCO shall provide an additional one year warranty on the corrected work only from the date the corrected work is completed or the end of the initial warranty period, whichever is later. ESCO does not warrant products not manufactured by ESCO, but it will pass on to City any manufacturer's warranty to the extent permitted. PART 3.2: GIVING OF NOTICE Section 3.2.1 General Requirements. Any and all demands and notices required or permitted to be given pursuant to this Agreement (each a "Notice") must be in writing and must be given or served in accordance with this Part 3.2. V3 033018 Page 18 Agreement for Turnkey Energy Conservation Services 12 04.2019 Section 3.2.2 Methods of Delivery. Each Notice must be sent via: (i) personal delivery (with name and signature of recipient obtained on delivery receipt); (ii) registered or certified United States mail (postage pre -paid and return receipt requested); (iii) FedEx, U.P.S. or other reliable, private delivery service (with name and signature of recipient obtained on electronic or other delivery receipt); or (iv) electronic mail (e-mail) transmission (with printed confirmation of transmission from the sender's machine or device retained in the sender's files and a copy of such confirmation provided to recipient upon request, and with original of the Notice deposited into the United States mail, first-class postage prepaid, within 12 hours after transmission). Neither Party may unreasonably refuse to accept delivery of any Notice in an attempt to avoid the giving or service of the Notice, and any such refusal by a Party shall be deemed and construed as a material breach of such Party's obligations pursuant to this Agreement. Section 3.2.3 Persons to Whom Notices Must Be Sent. Notices sent to a Party must be addressed and delivered to that Party's representative as specified in 3.2.6. A Party must give Notice of each change in the Party's address, person to whom attention should be directed, or e-mail address by giving notice in accordance with this Part 3. If any such information applicable to a Party changes, and the Party does not give notice of such change in accordance with this Part 3, any subsequent Notices addressed and delivered to the Party's old contact information shall be deemed and construed to have been given or served in accordance with Section 3.2.4 herein, regardless of whether "actual receipt" has occurred. Section 3.2.4 Effect of Receipt. A Notice shall be deemed given or served only upon actual receipt by the addressee. In the case of e-mail, "actual receipt" shall mean delivery to the recipient's e- mail in -box. However, if any Notice (including, without limitation, any Notice sent by e-mail) is delivered after 4:00p.m. on any weekday, on a weekend (Saturday or Sunday), on a day the City is closed for business, on any federal or State of California holiday, or on any City furlough day mandated by the State of California or the City Council, the Notice shall be deemed to have been given or served as of 9:00a.m. on the next subsequent business day. As an additional condition to sending a Notice by e-mail, the reference line must indicate that it is a "Notice Pursuant to Agreement for ESCO Turnkey Energy Conservation Services." Because e-mail addresses are subject to change more frequently than physical addresses, if a Notice is to be sent by e-mail, unless the sender has personal knowledge of the then - current correct e-mail address of each intended recipient, the sender must call and verify the then -current e-mail address of each intended recipient prior to sending the Notice, or must use some other method of delivering the Notice. Section 3.2.5 Applicability of Notice Requirements. The requirements of this Part 2 shall not be deemed or construed to apply to: (i) communications between the City and/or ESCO necessary for day- to-day administration of this Agreement or performance of the ESCO Services; or (ii) service of process in accordance with any applicable law or court rule. Section 3.2.6 Parties for Notices. Parties for Notices areas noted below: City: City of Lodi 221 West Pine Street Lodi, CA 95240 Attention: Steve Schwabauer Email: sschwabauer@iodi.gov Telephone: 209-333-6700 V3 033018 ESCO: Schneider Electric Buildings Americas Inc. 1650 West Crosby Rd Carrollton, TX 75006 Attention: Tammy Fulop Email: tammy.fulop@se.com Telephone: 214-755-8590 Page 19 Agreement for Turnkey Energy Conservation Services 12 04 2019 PART 3.3: INTERESTS OF PARTIES Section 3.3.1 Independent Contractor. ESCO is, for any and all purposes of or related to this Agreement, an independent contractor to the City. In no circumstances shall ESCO or any of its Sub - Consultants or subcontractors, or any officer, employee or agent of either, be deemed or construed to be an officer, employee or agent of the City on account of this Agreement. ESCO must at all times conduct its activities in a manner consistent with its status as an independent contractor to the City, and, except as provided in this Agreement, ESCO shall have the right to determine the methods, means and mechanisms by which it shall perform the ESCO Services. The City shall analyze the data and information provided by ESCO in connection with the design phase of the Project (Article 1) and, based on its judgment and at its sole discretion, determine whether it shall proceed with the construction phase (Article 2). ESCO shall not suffer or permit any third party (whether person or entity) to continue in any apparent belief that ESCO or any of its Sub -Consultants, subcontractors, or any officer, employee or agent of either, is an officer, employee, or agent of the City. ESCO shall be responsible for ensuring compliance with all laws related to its employees and the employees of any Sub -Consultant or subcontractor, including, without limitation, laws relating to workers' compensation and, if applicable, payment of prevailing wages. The compensation payable to ESCO hereunder shall not be increased as a result of any costs incurred by ESCO that are attributable to such compliance. Section 3.3.2 Intellectual Property Rights. Nothing in this Agreement shall be deemed or construed to result in the City acquiring any interest or rights in any such intellectual property owned by any third parties. However, to the extent provided in this Agreement, ESCO shall indemnify, defend and hold -harmless the City and the City Agents with respect to any violation of such third -party rights by ESCO or any of its Sub -Consultants in connection with this Agreement. PART 3.4: PROJECT RECORDS Section 3.4.1 Project Records. ESCO shall maintain all documents, books, papers, accounting records, computer files, and other information related to the ESCO Services ("Project Records"), including, but not limited to, the Construction Documents, the Plans and Specifications, Change Orders, submittals, cut -sheets, projected energy -savings calculations, requests for information, daily reports, correspondence, permits, insurance policies, Certificates of Insurance, testing and inspection reports, records relating to the costs of administering the Project, and safety records. ESCO shall keep such accurate and comprehensive Project Records as are (i) necessary for proper administration and performance of the ESCO Services and (ii) required by law and/or this Agreement. All Project Records, as applicable, shall be maintained in accordance with generally -accepted accounting principles. In accordance with Government Code Section 8546.7, the State has the right to examine, review, audit and/or copy the Project Records during the three-year period following final payment to ESCO pursuant to this Agreement. In addition, the City hereby has the right to examine, review, audit and/or copy the Records of the Project during the two-year period following final payment to ESCO pursuant to this Agreement. Therefore, ESCO shall make the Project Records available at its offices at all reasonable times during the performance of the ESCO Services and for four (4) years from final payment to ESCO pursuant to this Agreement. However, if any audit is commenced within such two (2) year period, ESCO shall make the Project Records available at all reasonable times until proceedings related to such audit are complete and all statutes of limitation related thereto have expired. Section 3.4.2 City Ownership and Use of Documents. Any and all conceptual, preliminary, working, and final documents (both originals and reproductions), presentations, computations, analyses, and other documents, in whatever format or storage medium, obtained or prepared by ESCO or any Sub - Consultant pursuant to this Agreement (each a "Project Document") and paid for by the City in accordance with this Agreement shall be deemed and construed to be and remain the property of the City. Except for V3 033018 Page 20 Agreement for Turnkey Energy Conservation Services 12 04.2019 purposes of this Agreement, and except for a copy of any Project Document that ESCO either submits to a State of California agency with competent jurisdiction or makes for purposes of including such copy as part of the Project Records, ESCO shall not permit reproductions to be made of any of the Project Documents without the advance written approval of the City, regardless of whether the Project Documents are in the possession of ESCO or any Sub -Consultant. The City may use the Project Documents as the City deems appropriate, with no compensation due to ESCO except as provided in this Agreement. The City shall have the unconditional right to use the Project Documents, for their intended purposes and, at City's sole discretion, for any other purpose, with no additional compensation due to ESCO. Except as expressly agreed in writing, the City shall not be required to employ ESCO in connection with any future use of the Project Documents. Notwithstanding anything to the contrary, ESCO acknowledges and agrees that the City will rely on the accuracy and completeness of the Project Documents when used for their intended purposes. The City shall indemnify and hold ESCO harmless with respect to any liabilities caused by City's use of the Project Documents for other than their intended purposes. PART 3.5: INTERPRETATION OF AGREEMENT Section 3.5.1 Fair and Reasonable Interpretations. Prior to execution and delivery of this Agreement, each Party has received, or had unqualified opportunities to receive, independent legal advice from its legal counsel with respect to the advisability of executing this Agreement and the meaning of the provisions herein. Therefore, the provisions of this Agreement shall be construed based on their fair and reasonable meaning, and not for or against any Party based on whether such Party or its legal counsel was primarily responsible for drafting this Agreement or any particular provision herein. Section 3.5.2 Headings and Captions. The headings and captions set forth in this Agreement are for the convenience of the reader only and shall not be deemed or construed to establish, define or limit the meaning of any Part, Section or other provision herein. Section 3.5.3 Recitals and Exhibits. Each Recital set forth herein and each Exhibit referenced herein and attached hereto is hereby incorporated as an effective and operative provision of this Agreement. Section 3.5.4 Meaning of "Days." Except as expressly provided in this Agreement in any particular case, each reference in this Agreement to a specific number of days shall be construed to mean consecutive calendar days. Section 3.5.5 Entire Agreement. This Agreement, together with the Construction Documents as set forth in Section 2.1.3.3 above, constitute the entire understanding and agreement between the Parties pertaining to the performance of the ESCO Services required by this Agreement, and all prior and contemporaneous agreements, representations and understandings of the Parties relating to such subject matter, whether oral or written, are hereby superseded and replaced. Section 3.5.6 Modifications of Agreement. This Agreement may be amended or otherwise modified only by means of a written agreement duly -approved, signed, and delivered by both Parties. Section 3.5.7 Waiver. A waiver by a Party of any provision of this Agreement shall be binding only if the waiver is set forth in writing and has been duly approved and signed by the waiving Party. Unless so specified in the written waiver, a waiver by a Party of any provision of this Agreement shall not constitute a waiver of any other provision(s) herein, similar or not, and shall not be construed as a continuing waiver. Except as waived in accordance with this Section, neither the failure by a Party at any time to require performance of any requirement of this Agreement, nor any forbearance or indulgence of the Party in regard to such requirement, shall in any manner affect the Party's right at a later time to V3 033018 Page 21 Agreement for Turnkey Energy Conservation Services 12 04.2019 enforce the same or any other provision of this Agreement. Section 3.5.8 Governing Law and Venue. This Agreement shall be governed by and interpreted in accordance with California law, regardless of any conflict -of -laws provisions applicable in California or any other jurisdiction. Any action, arbitration, or other proceeding arising from this Agreement shall be initiated and conducted only in the County where the Project is located. Section 3.5.9 Correct Legal Requirements Deemed Included. Each and every provision required by any applicable law to be included in this Agreement is hereby deemed to be so included, and this Agreement shall be construed and enforced as if all such provisions are so included. If, for any reason, any provision required by any applicable law is not expressly included herein, or is not correctly included herein, then, upon request of either the City or ESCO, they shall amend this Agreement to include or incorporate, or to correctly include or incorporate, such provision. Section 3.5. 10 Severability. If a court of competent jurisdiction determines, for any reason, that any provision or requirement of this Agreement is invalid or unenforceable, such determination shall not invalidate or render unenforceable any other provision or requirement of this Agreement. In such event, the provisions and requirements that are not the subject of the court's determination shall be interpreted, to the extent permitted by law, in a manner that is consistent with the intent and purpose underlying the invalid or unenforceable provision or requirement. Likewise, if a court of competent jurisdiction determines, for any reason, that any provision or requirement of this Agreement is invalid or unenforceable as applied to a specific person or entity, such determination shall not affect the applicability of such provision or requirement to other persons or entities. In such event, the provisions and requirements that are not the subject of the court's determination shall be interpreted, to the extent permitted by law, in a manner that is consistent with the intent and purpose underlying the inapplicable provision or requirement. Section 3.5. 11 Successors and Assigns. ESCO may not assign this Agreement without the express written consent of the City, and any attempt to do so shall be null and void. Subject to the foregoing, this Agreement shall inure to the benefit of, and be binding on, the Parties' authorized successors and assigns. Section 3.5.12 No Third -Party Beneficiaries. The Parties have entered into this Agreement solely for their own purposes, and this Agreement shall not be deemed or construed to: (i) benefit any third party; (ii) create any right for any third party; or (iii) except as provided by law, provide a basis for any claim, demand, action or other proceeding by any third party. Section 3.5.13 Agreement is Public Record. Notwithstanding anything in any proposal or any discussions or writings relating hereto: (i) nothing in this Agreement shall be deemed or construed to constitute confidential information; and (ii) this Agreement is a public record which the City may disclose in accordance with California law or otherwise. PART 3.6 LIMITATION OF LIABILITY Section 3.6.1 Notwithstanding anything in this Agreement to the contrary, in no event shall either party, its officers, directors, affiliates or employees be liable for any form of indirect, special, consequential or punitive damages, including, but not limited to, loss of use, loss of production, loss of product, loss of revenue, profits or loss of data damages whether such damages arise in contract or tort, irrespective of fault, negligence or strict liability or whether such party has been advised in advance of the possibility of such damages. Notwithstanding any other provision of this Agreement and to the extent permitted by applicable law, the maximum liability of ESCO for damages hereunder shall not V3 033018 Page 22 Agreement for Turnkey Energy Conservation Services 12.04 2019 exceed five million dollars ($5,000,000). PART 3.7: EXECUTION OF AGREEMENT Section 3.7.1 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which, taken together, shall constitute one and the same instrument. Signature pages may be detached from counterpart originals and combined to physically form one or more copies of this Agreement having original signatures of both Parties. Section 3.7.2 Due Authority of Signatories. Each person signing this Agreement represents and warrants that he or she has been duly authorized by appropriate action of the Party he or she represents to execute, and thereby bind such Party to, this Agreement. In Witness Whereof. The Parties have executed this Agreement as evidenced by the signatures of their authorized representatives below. City of Lodi, a municipal corporation Schneider Electric Buildings Americas, Inc., a Delaware corporation qualified to do business in California By: Print Name: Print Title: Date Signed: Approved as to Form: JANICF D. IVGDICH City Attomey rI' V3 033018 By: Print Name: Print Title: Date Signed: Fed. Tax ID No: 75-2066352 Page 23 Agreement for Turnkey Energy Conservation Services 12.04 2019 Exhibit "A" Scope of Work - Design Phase of the Project 1. Responsibilities City Will: A. Provide ESCO a minimum of twenty-six (26) months of requested electric and/or water invoices for each meter the facility. B. Provide ESCO necessary escorted access to facilities for the purpose of performing the energy efficiency analysis, measuring actual energy use, taking equipment inventory, determining operating schedules, identifying known operational deficiencies. C. Provide ESCO access to key personnel to discuss operating requirements. D. Provide ESCO equipment lists and copies, or the loan of facility plans, for the purpose of facilitating understanding of the characteristics and the current sequences of operation. E. Meet with ESCO to establish project criteria and make project decisions necessary for ESCO to complete in a timely manner. F. Inform ESCO at the point in which City becomes aware of any portions of scope that will not be included or funding that will not be available for final project implementation. ESCO Will: A. Conduct a project programming meeting, facility walk-through(s) and personnel interview(s) to gain an understanding of facility operations, concerns, needs, and desired performance criteria. The Design Services effort will be completed in two phases. The first phase (Conceptual Development) will be a deeper analysis and validation of data provided by the City and qualification of applicable grants and incentives. The completion of phase one will be shared with the City and a decision to proceed with the completion of the design will be made. Should phase one's analysis reveal the project is no longer viable, then the City and ESCO will mutually agree to cease efforts with costs as defined in Exhibit "C". B. Work with City to refine performance requirements, financial criteria, and project scope of work. C. Provide City a final scope of work for Construction as defined in Exhibit "D", software, construction and post construction support costs. D. Provide City a final and guaranteed energy savings and/or new revenues and a cost savings analysis demonstrating the effect of project finances and operations. E. Provide City a lifecycle financial analysis cash flow. F. Provide an energy analysis report sufficient to demonstrate that the anticipated cost to the City of the recommended project developed will be less than the anticipated marginal cost to the City of thermal, electrical, or other energy that would have been consumed by the City in the absence of the project in accordance with Government Code section 4217.10 et seq. G. Provide City an Energy Services Agreement including a section detailing a post construction Performance Assurance Support Services (PASS) plan for the facilities, detailing training, measurement and verification of savings and any new revenues as set forth in Exhibit "K". H. Provide City a final construction completion schedule. Final project pricing for a turnkey installation. Page A-1 I Agreement for Turnkey Energy Conservation Services 12.04.2019 2. Phases of Design The ESCO promises and agrees, at its own cost and expense, to furnish to City all design services, and incidental and customary work necessary to fully and adequately complete the Project as described in this Exhibit "A". The Design Scope of Work shall consist of two phases: Conceptual Development (Up to Mid-term of Design) and Design Development (Design Completion). A. Phase 1 — Conceptual Development (Project Scoping) (i) At the Mid-term meeting, ESCO shall demonstrate for City whether recommended improvement measures are viable and financial benefits (including grants) that can be derived by their implementation can be guaranteed in an amount sufficient to cover costs associated with the project. (ii) Scope of work includes a description of the Energy Conservation Measures (ECM), Energy Generation Measures (EGM) and/or Facility Improvement Measures (FIM), a clear understanding of applicable grant criteria, any other incentives, calculation of energy and operational savings, preliminary costs for the construction of the scope and a financing plan. B. Phase 2 — Design Development (Design Completion) (i) At the Design Completion meeting, ESCO shall present a final scope of work detailing the included ECMs, EGMs and/or FIMs, a lump -sum fixed price proposal to City, in accordance with this Agreement. The price proposal shall include a written guarantee of energy and other operational savings and shall set forth an estimated Completion Date. This cost, final scope and construction timeline will be added by Addendum to this Agreement at completion of the Design Services Phase. 3. Facilities Included The Design Services will be performed for City's following facilities. Any additional facilities to be added in the future must be made by mutual written agreement between City and ESCO: Facilities 12751 North Thornton Road, Lodi, CA 95242 Page A-2 I Agreement for Turnkey Energy Conservation Services 12.04.2019 Exhibit 'B" Preliminary Schedule - Design Phase of the Project Following is the preliminary schedule for the design phase of the Project. A firm development schedule will be developed and presented for acceptance by City once ESCO has discussed development requirements and timing with City's partners. Item f Target Schedule 1 City approves selection of ESCO and to move forward with project at regularly scheduled Council Meeting November 6, 2019 City signs Agreement for Turnkey Design and Construction Energy Services authorizing ESCO to proceed with design services November 7, 2019 November 29, 2019 City provides complete utility information, building plans, etc. ESCO and City conduct a design kick-off meeting December 11, 2019 Design Criteria Meeting March 2, 2019 Mid-term Meeting April 21, 2020 Final Design Phase Meeting July 29, 2020 NTP issued allowing ESCO to proceed with the construction phase of the Project August 12, 2020 A construction kick-off meeting is held to prepare for the construction phase August 26, 2020 Page B-1 I Agreement for Turnkey Energy Conservation Services EXHIBIT "C" Compensation for Design and Construction Services In Exchange for full and satisfactory completion of the Design and Construction Services, the City shall compensate ESCO as provided below in this Exhibit "C" for the ESCO Services described in Exhibits "A" and "D" to this Agreement. The overall Scope of Work shall consist of three phases: Conceptual Development (Up to Mid-term of Design), Design Development (Design Completion), and Construction. The Scope of Work, including all three phases, is more particularly described in Attachments "A" and "D Subject to the foregoing, the City shall pay to ESCO the following: 1. Phase 1 -- Conceptual Development (Project Scoping) If ESCO fulfills all of its responsibilities as part of the Conceptual Development phase, City must determine within thirty (30) days of receiving all Conceptual Development deliverables whether to terminate the Contract or move to Phase 2. City shall notify ESCO in writing of its decision. If ESCO complies with all obligations under the Contract and City terminates the Contract instead of proceeding to the next Phase, City shall pay ESCO a fee not to exceed $225,000.00, as full and final satisfaction for all services performed. All deliverables including but not limited to documents, engineering, budget costs, preliminary design, schedule and data shall become the exclusive property of City. If City elects to move to Phase 2, all costs incurred during Phase 1, will roll over to Phase 2. 2. Phase 2 — Design Development {Desi_gn Completion) After a Final Design Meeting and if ESCO fulfills all of its responsibilities as part of the Design Development phase, City must determine within sixty (60) days of receiving all Design Development deliverables whether to terminate the Contract or move to Phase 3. At or before the Final Design Meeting, ESCO shall present a price proposal to City based on a guaranteed lump sum price, in accordance with this Agreement. The price proposal shall include a written guarantee of energy and other operational savings where costs of the ECMs, EEMs and/or FIMs of this Project will be offset by a combination of expected grants/incentives and energy and operational savings over the useful life of those improvements, but not more than thirty (30) years ("Performance Guarantee"). The price proposal shall set forth the Guaranteed Completion Date. The price proposal shall be a firm offer valid for ninety (90) days from submission. If ESCO complies with all obligations under the Contract and City terminates the Contract instead of proceeding to the next Phase, City shall pay ESCO an exit fee of $225,000.00, inclusive of the Phase 1 and Phase 2 termination fees, as full and final satisfaction for all services performed. All deliverables including but not limited to documents, engineering, budget costs, design, schedule and data shall become the exclusive property of City upon receipt of payment. If City elects to move to Phase 3, all costs incurred during Phase 1 and Phase 2 will roll over to Phase 3. 3. Phase 3 — Construction If the City elects to proceed to Phase 3 and is satisfied with ESCO's construction price proposal and Performance Guarantee, then ESCO shall submit a formal document establishing the Price for Construction, the Guaranteed Completion Date, the scope of Work and the Performance Guarantee. Approval shall be contingent upon City's City Council holding a public hearing and finding that all of the requirements of Government Code section 4217.10 et seq. are met. Once approved, City may issue a Notice to Proceed with Construction and ESCO shall begin construction work. ESCO shall perform all construction services, labor, materials, tools, equipment, services, engineering and incidental and customary work necessary to fully and adequately complete Phase 3. Compensation for construction work shall be paid monthly for work performed, in accordance with this Agreement and the General Conditions. Page C-1 I Agreement for Turnkey Energy Conservation Services EXHIBIT "D" Scope of Work - Construction Phase of the Project [Intentionally Blank. Will be added by Addendum at completion of the Design Services Phase] Page D-1 I Agreement for Turnkey Energy Conservation Services Exhibit "E" Preliminary Schedule — Construction Phase of the Project [Intentionally Blank. Will be added by Addendum at completion of the Design Services Phase] Page E-1 I Agreement for Turnkey Energy Conservation Services EXHIBIT "F" Construction Insurance Requirements 1. Insurance a Condition Precedent to Commencing the Construction Phase of the Project. Timely compliance by ESCO with all applicable requirements of this Exhibit "F" shall be deemed and construed as a condition precedent to ESCO commencing any portion of the construction phase. However, in no event shall ESCO's compliance, failure to comply, or failure to timely comply, with the requirements of this Exhibit "F" be deemed or construed to relieve ESCO of any of its responsibilities pursuant to the Construction Documents, including, without limitation the requirements to timely commence and complete the construction services. ESCO shall be responsible for all damages and costs incurred by the City arising from any failure by ESCO to comply or to timely comply with the requirements of this Exhibit "F". 2. MINIMUM SCOPE AND LIMIT OF INSURANCE. Coverage shall beat least as broad -as: a. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an "occurrence" basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $5,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit. b. Automobile Liability: ISO Form Number CA 00 01 covering any auto or if ESCO has no owned autos, then hired, and non -owned autos with limit no less than $2,000,000 per accident for bodily injury and property damage. C. Workers' Compensation: as required by the State of California, with Statutory Limits, and Employer's Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease. d. Builder's Risk (Course of Construction) insurance utilizing an "All Risk" (Special Perils) coverage form, with limits equal to the completed value of the project and no coinsurance penalty provisions. e. . Professional Liability (if Design/Build), with limits no less than $2,000,000 per occurrence or claim. 3. Other Insurance Provisions: a. Additional Named Insured Status The City, its elected and appointed boards, commissions, officers, agents, employees, and volunteers are to be covered as additional insureds on the CGL and auto policy with respect to liability arising out of work or operations performed by or on behalf of ESCO including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to ESCO's insurance (at least as broad as ISO Form CG 20 10 11 85 or if not available, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 if a later edition is used b. Primary and Non -Contributory Insurance Endorsement The limits of insurance coverage required may be satisfied by a combination of primary and umbrella or excess insurance. For any claims related to this contract, ESCO's insurance coverage shall be primary coverage at least as broad as ISO CG 20 01 04 13 as respects the Entity, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the Entity, its officers, officials, employees, or volunteers shall be excess of the ESCO's insurance and shall not contribute with it. C. Waiver of Subrogation. ESCO hereby grants to City a waiver of any right to subrogation which any insurer of ESCO may acquire against the City by virtue of the payment of any loss under such insurance. ESCO agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has Page F-1 I Agreement for Turnkey Energy Conservation Services 12 04 2019 received a waiver of subrogation endorsement from the insurer NOTE: (1) The street address of the City must be shown along with (a) and (b) and (c) above: 221 West Pine Street, Lodi, California, 95240; (2) The insurance certificate must state, on its face or as an endorsement, a description of the project that it is insuring. d. Severability of Interest Clause The term "insured" is used severally and not collectively, but the inclusion herein of more than one insured shall not operate to increase the limit of the company's liability under ESCOs commercial general liability and automobile liability policies. e. Notice of Cancellation or Change in Coverage Endorsement This policy may not be canceled nor the coverage reduced by ESCO without 30 days' prior written notice of such cancellation or reduction in coverage to the Risk Manager, City of Lodi, 221 West Pine St., Lodi, CA 95240. Continuity of Coverage All policies shall be in effect on or before the first day of the Term of this Agreement. At least thirty (30) days prior to the expiration of each insurance policy, ESCO shall furnish a certificate(s) showing that a new or extended policy has been obtained which meets the minimum requirements of this Agreement. ESCO shall provide proof of continuing insurance on at least an annual basis during the Term. If ESCO's insurance lapses or is discontinued for any reason, ESCO shall immediately notify the City and immediately obtain replacement insurance. ESCO agrees and stipulates that any insurance coverage provided to the City shall provide for a claims period following termination of coverage which is at least consistent with the claims period or statutes of limitations found in the California Tort Claims Act (California Government Code Section 810 et seq.). g. Failure to Comply If ESCO fails or refuses to obtain and maintain the required insurance, or fails to provide proof of coverage, the City may obtain the insurance. ESCO shall reimburse the City for premiums paid, with interest on the premium paid by the City at the maximum allowable legal rate then in effect in California. The City shall notify ESCO of such payment of premiums within thirty (30) days of payment stating the amount paid, the name(s) of the insurer(s), and rate of interest. ESCO shall pay such reimbursement and interest on the first (1st) day of the month following the City's notice. Notwithstanding any other provision of this Agreement, if ESCO fails or refuses to obtain or maintain insurance as required by this agreement, or fails to provide proof of insurance, the City may terminate this Agreement upon such breach. Upon such termination, ESCO shall immediately cease use of the Site or facilities and commence and diligently pursue the removal of any and all of its personal property from the site or facilities. Verification of Coverage ESCO shall furnish the City with a copy of the policy declaration and endorsement page(s), original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive ESCO's obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time. Failure to exercise this right shall not constitute a waiver of the City's right to exercise after the effective date. Page F-2 I Agreement for Turnkey Energy Conservation Services 12 04 2019 Self -Insured Retentions Self-insured retentions must be declared to and approved by the City. The City may require ESCO to provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City Insurance Limits The limits of insurance described herein shall not limit the liability of ESCO and ESCO's officers, employees, agents, representatives or subcontractors. ESCO's obligation to defend, indemnify and hold the City and its officers, officials, employees, agents and volunteers harmless under the provisions of this paragraph is not limited to or restricted by any requirement in the Agreement for ESCO to procure and maintain a policy of insurance. k. Subcontractors ESCO shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and ESCO shall ensure that City is an additional insured on insurance required from subcontractors Qualified Insurer(s) All insurance required by the terms of this Agreement must be provided by insurers licensed to do business in the State of California which are rated at least "A-, VI" by the AM Best Ratings Guide, and which are acceptable to the City. Non -admitted surplus lines carriers may be accepted provided they are included on the most recent list of California eligible surplus lines insurers (LESLI list) and otherwise meet City requirements. Page F-3 i Agreement for Turnkey Energy Conservation Services 12.04.2019 EXHIBIT "G" Performance Assurance Support Services Agreement [Intentionally Blank. Will be added by Addendum at completion of the Design Services Phase] Page G-1 I Agreement for Turnkey Energy Conservation Services Exhibit "H" Performance Guarantee [Intentionally Blank. Will be added by Addendum at completion of the Design Services Phase] Page H-1 I Agreement for Turnkey Energy Conservation Services Exhibit " I" Measurement & Verification Plan [Intentionally Blank. Will be added by Addendum at completion of the Design Services Phase] Page 1-1 1 Agreement for Turnkey Energy Conservation Services Exhibit "J" City Responsibilities for Performance Guarantee [Intentionally Blank. Will be added by Addendum at completion of the Design Services Phase] Page J-1 I Agreement for Turnkey Energy Conservation Services Exhibit "K" Performance Assurance Support Services [Intentionally Blank. Will be added by Addendum at completion of the Design Services Phase] Page K-1 I Agreement for Turnkey Energy Conservation Services Ah Outline • Project Description • ESCO Agreement • Questions • Open Public Hearing f Project Description } • Aeration Blower and Diffuser Replacement Project — Replace 2 of 4 constant speed blowers with new variable speed blowers — Replace existing membrane panel style diffusers with disc style diffuser system — Estimated Cost: $2 Million — FY 2020/21 — Estimated energy savings: $250,000 per year �f ESCO Agreement } • Energy Service Company (ESCO) Agreement — California Government Code Section 4217 — Multiple Phases • Phase 1 — Conceptual Design Development • Phase 2 — Design Development • Phase 3 — Construction • Phases 1 and 2 will not exceed $225,000 • Phase 3 estimated construction cost - $2 Million — to be determined — Benefits • Efficient project delivery — reduced staff involvement • Risk diversion • Energy savings guarantee �IJP_Stl(' RESOLUTION NO. 2020-15 A RESOLUTION OF THE LODI CITY COUNCIL AUTHORIZING THE CITY MANAGER TO EXECUTE ENERGY SERVICE AGREEMENT WITH SCHNEIDER ELECTRIC BUILDINGS AMERICAS, INC., OF CARROLLTON, TEXAS, FOR CONCEPTUAL DEVELOPMENT (PHASE 1) AND DESIGN DEVELOPMENT (PHASE 2) FOR REPLACEMENT OF AERATION BLOWERS AND DIFFUSERS AT WHITE SLOUGH WATER POLLUTION CONTROL FACILITY, IN ACCORDANCE WITH CALIFORNIA GOVERNMENT CODE SECTION 4217 WHEREAS, the State of California allows public agencies to enter into energy service contracts with an Energy Service Company (ESCO) if the governing body finds the proposed project will provide energy savings over its service life. Schneider Electric Buildings Americas, Inc. is one of several ESCO's that operate in the State of California; and WHEREAS, the benefits to the public agency of entering into an ESCO agreement include project delivery efficiencies, diverting project risk, a fixed project construction price, and project performance guarantee with respect to energy savings; and WHEREAS, the blower replacement element of this project is intended to replace two of the four existing constant -speed aeration blowers with variable speed blowers to be used in concert with the existing blowers to pace the aeration demand by either speeding up, or slowing down, as demand varies; and WHEREAS, initial assessments find the replacement blowers and diffusers will save the City's wastewater utility an estimated $250,000 per year in energy costs, while providing more accurate aeration dosage control; and WHEREAS, staff recommends authorizing the City Manager to execute an Energy Service Agreement with Schneider Electric Buildings Americas, Inc., of Carrollton, Texas, for conceptual development (Phase 1) and design development (Phase 2) for replacement of aeration blowers and diffusers at White Slough Water Pollution Control Facility, in the amount of $225,000, in Accordance with California Government Code Section 4217. NOW, THEREFORE, BE IT RESOLVED that the Lodi City Council does hereby authorize the City Manager to execute Energy Service Agreement with Schneider Electric Buildings Americas, Inc., of Carrollton, Texas, for conceptual development (Phase 1) and design development (Phase 2) for replacement of aeration blowers and diffusers at White Slough Water Pollution Control Facility, in the amount of $225,000, in Accordance with California Government Code Section 4217; and BE IT FURTHER RESOLVED, pursuant to Section 6.3q of the City Council Protocol Manual (adopted 11/6/19, Resolution No. 2019-223), the City Attorney is hereby authorized to make minor revisions to the above -referenced document(s) that do not alter the compensation or term, and to make clerical corrections as necessary. Dated: January 15, 2020 I hereby certify that Resolution No. 2020-15 was passed and adopted by the City Council of the City of Lodi in a regular meeting held January 15, 2020, by the following vote: AYES: COUNCIL MEMBERS — Chandler, Johnson, Nakanishi, and Mayor Kuehne NOES: COUNCIL MEMBERS — None ABSENT: COUNCIL MEMBERS — Mounce ABSTAIN COUNCIL MEMBERS — None PAMELA M. FARRIS Assistant City Clerk 2020-15 Please immediately confirm receipt of this fax by calling 3336702 CITY OF LODI P. O. BOX 3006 LODI, CALIFORNIA 95241-1910 ADVERTISING INSTRUCTIONS SUBJECT: NOTICE OF PUBLIC HEARING TO CONSIDER ADOPTING RESOLUTION AUTHORIZING CITY MANAGER TO EXECUTE ENERGY SERVICE AGREEMENT WITH SCHNEIDER ELECTRIC BUILDINGS AMERICAS, INC., OF CARROLLTON, TEXAS, FOR CONCEPTUAL DEVELOPMENT (PHASE 1) AND DESIGN DEVELOPMENT (PHASE 2) FOR REPLACEMENT OF AERATION BLOWERS AND DIFFUSERS AT WHITE SLOUGH WATER POLLUTION CONTROL FACILITY IN ACCORDANCE WITH CALIFORNIA GOVERNMENT CODE SECTION 4217 PUBLISH DATE: SATURDAY, DECEMBER 21, 2019 � � I TEAR SHEETS WANTED: One (1) please SEND AFFIDAVIT AND BILL TO: PAMELA M. FARRIS, ASSISTANT CITY CLERK LNS ACCT. #5100152 City of Lodi P.O. Box 3006 Lodi, CA 95241-1910 DATED: THURSDAY, DECEMBER 19, 2019 ORDERED BY: PAMELA M. FARRIS ASSISTANT CITY CLERK PAMELA M. FARRIS ASSISTANT CITY CLERK KAYLEE CLAYTON ADMINISTRATIVE CLERK Emailed to the Sentinel at legals@iodinews.com at q' lme} on 191 Iqffl(aste) [pages] formAadvins.doc DECLARATION OF POSTING NOTICE OF PUBLIC HEARING TO CONSIDER ADOPTING RESOLUTION AUTHORIZING CITY MANAGER TO EXECUTE ENERGY SERVICE AGREEMENT WITH SCHNEIDER ELECTRIC BUILDINGS AMERICAS, INC., OF CARROLLTON, TEXAS, FOR CONCEPTUAL DEVELOPMENT (PHASE 1) AND DESIGN DEVELOPMENT (PHASE 2) FOR REPLACEMENT OF AERATION BLOWERS AND DIFFUSERS AT WHITE SLOUGH WATER POLLUTION CONTROL FACILITY IN ACCORDANCE WITH CALIFORNIA GOVERNMENT CODE SECTION 4217 On Thursday, December 19, 2019, in the City of Lodi, San Joaquin County, California, a Notice of Public Hearing to consider resolution authorizing City Manager to execute Energy Service Agreement with Schneider Electric Buildings Americas, Inc., of Carrollton, Texas, for conceptual development (Phase 1) and design development (Phase 2) for replacement of aeration blowers and diffusers at White Slough Water Pollution Control Facility in accordance with California Government Code Section 4217 (attached and marked as Exhibit A) was posted at the following locations: Lodi City Clerk's Office Lodi City Hall Lobby Lodi Carnegie Forum Worknet Office I declare under penalty of perjury that the foregoing is true and correct. Executed on December 19, 2019, at Lodi, California. PAMELA M. FARRIS ASSISTANT CITY CLERK ORDERED BY: PAMELA M. FARRIS ASSISTANT CITY CLERK KAYLEE CLAYTON ADMINISTRATIVE CLERK MAdministration\CLERK\Public Hearings\AFFADAVITS\DECPOSTPW2,doc ` •. CITY OF LQII)t Carnegie Forum 305 West Pine Street, Lodi NOTICE OF PUBLIC HEARING Date: January 15, 2020 Time: 7:00 p.m. For information regarding this notice please contact: Jennifer M. Ferraiolo City Clerk Telephone: (209) 333-6702 NOTICE OF PUBLIC HEARING NOTICE IS HEREBY GIVEN that on Wednesday, January 15, 2020, at the hour of 7:00 p.m., or as soon thereafter as the matter may be heard, the City Council will conduct a public hearing at the Carnegie Forum, 305 West Pine Street, Lodi, to consider: a) Resolution authorizing City Manager to execute Energy Service Agreement with Schneider Electric Buildings Americas, Inc., of Carrollton, Texas, for conceptual development (Phase 1) and design development (Phase 2) for replacement of aeration blowers and diffusers at White Slough Water Pollution Control Facility in accordance with California Government Code Section 4217. Information regarding this item may be obtained in the Public Works Department, 221 West Pine Street, Lodi, (209) 333-6706. All interested persons are invited to present their views and comments on this matter. Written statements may be filed with the City Clerk, City Hall, 221 West Pine Street, 2nd Floor, Lodi, 95240, at any time prior to the hearing scheduled herein, and oral statements may be made at said hearing. If you challenge the subject matter in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice or in written correspondence delivered to the City Clerk, 221 West Pine Street, at or prior to the close of the public hearing. By Order of the Lodi City Council: Pamela M. Farris Assistant City Clerk Dated: December 18, 2019 Approved as to form: re-D—agdich Jana City Attorney AVISO: Para obtener ayuda interpretativa con esta noticia, por favor Ilame a la oficina de la 4 Secretaria Municipal, a las (209) 333-6702. CLERMPUBHEARWOTICESWOT_PWdoc 12113/19