HomeMy WebLinkAbout4.5 - 1415 Amended and Restated Energy Services Contra
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STAFF REPORT
CITY COUNCIL
DATE: May 2, 2017
TO: Honorable Mayor and City Councilmembers
FROM:
Christopher L. Foss, City Manager
SUBJECT:
Amended and Restated Energy Services Contract Between the City of
Dublin and OpTerra Energy Services, Inc.
Prepared by: Dan Stevenson, Public Works Manager
EXECUTIVE SUMMARY:
The City Council will consider approval of an Amended and Restated Energy Services
Contract for Operation and Maintenance between the City of Dublin and OpTerra
Energy Services, Inc., successor-in-interest to Chevron Energy Solutions Company, a
division of Chevron U.S.A. Inc., to remove the Annual Performance Guarantee Fee
agreed to in the original contract.
STAFF RECOMMENDATION:
Adopt the Resolution Approving an Amended and Restated Energy Services Contract
for Operation and Maintenance between the City of Dublin and OpTerra Energy
Services, Inc.
FINANCIAL IMPACT:
Savings of approximately $35,000 annually.
DESCRIPTION:
In order to curtail the high cost of energy and to prom ote greater sustainability within the
City, the City Council approved an agreement with Chevron Energy Solutions in May
2011 to conduct an energy audit of all City facilities. Chevron completed the audit and
provided the City with a proposed Energy Action Plan that included a detailed
implementation strategy highlighting energy efficient upgrades and renewable energy
productions projects.
On August 1, 2011, the City entered into an Energy Service Contract and an associated
financing contract with Chevron Energy Solutions for the implementation and funding of
certain energy related improvements to City of Dublin Facilities.
One of the negotiated terms is a Performance Guarantee which served as an insurance
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policy for the City in the event that the solar generation and the energy efficiency
upgrades did not meet or exceed the energy performance expectations that Chevron
projected. The initial agreement committed the City to the Performance Guarantee for
the first three years of the agreement.
To date, the system has outperformed Chevron's projections for energy use falling well
below the anticipated threshold. In fact, the City has been well below the projected total
for three years. As a result, it is unlikely that the City will need to utilize the Perform ance
Guarantee. To date, the City has been paying approximately $35,000 annually to
maintain the Performance Guarantee provision. Eliminating the Performance Guarantee
provision would therefore reduce the contract cost by approximately $35,000 annually,
for the remainder of the contract term.
Staff is recommending the approval of an Amended and Restated Agreement between
the City of Dublin and OpTerra Energy Services, Inc. to remove the Annual
Performance Guarantee Fee agreed to in the original contract.
NOTICING REQUIREMENTS/PUBLIC OUTREACH:
None.
ATTACHMENTS:
1. Resolution Approving an Amended and Restated Energy Services Contract
2 Exhibit A to the Resolution - Amended and Restated Energy Services Contract
RESOLUTION NO. XX- 17
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
* * * * * * * * *
APPROVING AN AMENDED AND RESTATED ENERGY SERVICES CONTRACT
FOR OPERATION AND MAINTENANCE BETWEEN
THE CITY OF DUBLIN AND
OPTERRA ENERGY SERVICES, INC.
WHEREAS, in order to curtail the high cost of energy and to promote greater
sustainability within the City, the City Council approved an agreement with Chevron
Energy Solutions in May 2011 to conduct an energy audit of all City facilities; and
WHEREAS, Chevron completed the audit and provided the City with a proposed
Energy Action Plan that included a detailed implementation strategy highlighting energy
efficient upgrades and renewable energy productions projects; and
WHEREAS, August 1, 2011, the City entered into an Energy Service Contract
and an associated financing contract with Chevron Energy Solutions Company for the
implementation and funding of certain energy related improvements to City of Dublin
Facilities; and
WHEREAS, the contract was amended on October 24, 2015 by Amendment No.
1; and
WHEREAS, one of the negotiated terms is a Performance Guarantee which
served as an insurance policy for the City in the event that the solar generation and the
energy efficiency upgrades did not meet or exceed the energy performance
expectations that Chevron projected; and
WHEREAS, to date, the system has outperformed Chevron's projections for
energy use falling well below the anticipated threshold so the Performance Guarantee is
no longer; and
WHEREAS, Staff has recommended the approval of an Amended and Restated
Agreement Amendment between the City of Dublin and OpTerra Energy Services, Inc.
(successor-in-interest to Chevron Energy Solutions Company, a division of Chevron
U.S.A. Inc.) clarifying the operation and maintenance services to the City of Dublin .
NOW, THEREFORE BE IT RESOLVED, that the City Council of the City of
Dublin does hereby approve the Amended and Restated Energy Services Contract for
Operation and Maintenance attached hereto as Exhibit A.
BE IT FURTHER RESOLVED, that upon the effective date of the Amended and
Restated Energy Services Contract for Operation and Maintenance, Amendment No. 1
dated October 24, 2015 is null and void.
BE IT FURTHER RESOLVED, that the City Manager is authorized and directed
to execute the Amended and Restated Energy Services Contract for Operation and
Maintenance and to take such other and further action, as necessary and appropriate to
carry out the intention of this Resolution.
PASSED, APPROVED AND ADOPTED this 2nd day of May, 2017, by the
following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
______________________________
Mayor
ATTEST:
_________________________________
City Clerk
2805132.1
a OPTERRA
FiJrRGY S�RVICFS
DIR Project Registration # _ _ _ _ _ _
OpTerra ES Project #: ACEOM32396
OpTerra ES Contract # CU1286
AMENDED AND RESTATED ENERGY SERVICES CONTRACT
FOR OPERATION & MAINTENANCE
This AMENDED AND RESTATED ENERGY SERVICES CONTRACT FOR OPERATION & MAINTENANCE
(this "Agreement ") is made and entered into as of 29 March 2017 by and between OpTerra Energy Services, Inc., a
Delaware corporation ( "OpTerra ES "), and The City of Dublin (the "Customer" and together with OpTerra ES the
"Parties" and each of Customer and OpTerra ES a "Party ").
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WHEREAS, OpTerra ES is a full - service energy services company with the technical capabilities to provide
services to the Customer including, but not limited to, maintenance of Generating Facilities (as defined below);
WHEREAS, in order to curtail the high cost of energy and to promote greater sustainability, on 3 May 2011 the
Customer and Chevron Energy Solutions Company, a division of Chevron U.S.A. Inc. ( "CES "), entered into a Consulting
Services Agreement to conduct a comprehensive energy analysis of all Customer facilities;
WHEREAS, CES completed the analysis and provided the Customer with a proposed Energy Action Plan that
included a detailed implementation strategy highlighting energy efficient upgrades and renewable energy productions
projects;
WHEREAS, on 1 August 2011, the Customer entered into an Energy Services Contract (the "ESC ") with CES
for the implementation of certain energy related improvements to Customer's Facilities;
WHEREAS, CES assigned the ESC to OpTerra ES in September 2014, and OpTerra ES and Customer
amended the ESC on 24 October 2015, by Amendment No. 1;
WHEREAS, the Customer and OpTerra ES desire to amend and restate the ESC in its entirety in order, among
other things, to cancel the "Savings Guarantee" and to retain only the "PM Services" (each as defined in the ESC), as
amended by this Agreement; and
WHEREAS, OpTerra ES has agreed to provide preventive maintenance services for the Generating Facilities
on the terms and subject to the conditions of this Agreement;
NOW, THEREFORE, the Customer and OpTerra ES hereby agree as follows:
ARTICLE 1. DEFINITIONS
For purposes of this Agreement and its Attachments, the defined terms herein shall have the meaning set forth
as follows:
"AAA" is defined in ARTICLE 9.
"Abnormally Severe Weather Conditions" means typhoons, hurricanes, tornadoes, lightning storms and other
climatic and weather conditions that are abnormally severe for the period of time when, and the area where, such
storms or conditions occur, in each case occurring at a property, the access roads to a property, or any other
location where Services are then being performed. For the avoidance of doubt, the term "Abnormally Severe
Weather Conditions" specifically includes rain, snow or sleet in excess of one hundred fifty percent (150 %) of the
median level over the preceding ten (10) year period for the local geographic area and time of year in which such
rain, snow or sleet accumulates.
"Agreement" is defined in the Preamble, and includes all Attachments hereto (all of which are incorporated herein),
as well as all amendments, restatements, supplements and other modifications hereto.
"Annual Maintenance and Monitoring Fee" means a fee payable annually in advance by the Customer to OpTerra
ES. The Annual Maintenance and Monitoring Fee for each O &M Period shall be as stated in the below fee schedule
table. The Annual Maintenance and Monitoring Fee shall be increased annually thereafter at the rate of three
percent (3 %) per annum, each increase to be effective on the first day of the corresponding O &M Period. The
Annual Maintenance and Monitoring Fee for each O &M Period after the tenth (10th) O &M Period will be negotiated in
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Operation & Maintenance Agreement
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good faith by the Parties, not later than ninety (90) days prior to the end of the preceding O &M Period, on the basis
of then - prevailing market rates for, e.g., labor and equipment.
Fee Schedule (includes only monitoring services portion of the Annual Guarantee Fee (as defined in the ESC); does
not include remainder of Annual Guarantee Fee):
O &M Period
Start Date
End Date
Monitoring
Services
PV O &M
Services
Total Fee
Payment
'Status
$11,097
1
1 Feb 2014
31 Jan 2015
$12,238
(net of
$23,335
Paid in full
$4,633 credit
2
1 Feb 2015
31 Jan 2016
$12,238
$16,202
$28,440
Paid in full
Paid PV
3
1 Feb 2016
31 Jan 2017
$12,238
$16,688
$28,926
O &M
Services only
Billed for PV
4
1 Feb 2017
31 Jan 2018
$12,238
$17,189
$29,427
O &M
Services onl
5
1 Feb 2018
31 Jan 2019
$12,238
$17,704
$29,942
6
1 Feb 2019
31 Jan 2020
$12,238
$18,235
$30,473
7
1 Feb 2020
31 Jan 2021
$12,238
$18,782
$31,020
8
1 Feb 2021
31 Jan 2022
$12,238
$19,346
$31,584
9
1 Feb 2022
31 Jan 2023
$12,238
$19,926
$32,164
10
1 Feb 2023
31 Jan 2024
$12,238
1 $20,524
$32,762
"Applicable Law" means any statute, law, treaty, building codes, rule, regulation, ordinance, code, enactment,
injunction, writ, order, decision, authorization, judgment, decree, protocol, procedure or other legal or regulatory
determination or restriction by a court or Governmental Authority or competent jurisdiction, as may be in effect at the
time the Services are undertaken.
"Applicable Permits" means all permits, waivers, authorizations, or licenses issued or required to be issued by any
Governmental Authority in connection with the Services.
"Customer" is defined in the Preamble.
"Dispute" is defined in ARTICLE 9.
"Force Majeure" means acts or events that are beyond the reasonable control of the affected Party and not caused
by the negligence or fault of the Party affecting, including but not limited to any of the following: (i) acts of God;
(ii) acts of the public enemy or terrorist acts; (iii) relocation or construction of transmission facilities or the shutdown
of such facilities for the purpose of necessary repairs; (iv) work by local utility; (v) flood, earthquake, tornado, storm,
fire, explosions, lightning, landslide or similar cataclysmic occurrence; (vi) sabotage, vandalism, riots or civil
disobedience; (vii) labor disputes or strikes; (viii) labor or material shortages, delay in manufacturing and deliveries
of equipment (if such delay is caused by an event that would otherwise constitute Force Majeure); (ix) restraint by
court order or public authority (whether valid or invalid); (x) inability to obtain or keep in force any Applicable Permit;
(A) Abnormally Severe Weather Conditions; (xii) an annual level of direct beam solar resource availability that is less
than or equal to 90% of historical averages as measured by long -term weather data (minimum 5 years) collected at
the applicable Project Location and /or other reliable calibrated and appropriate weather station representative of
such Project Location; (xiii) requirement by utility that any Generating Facility discontinue operation for any reason;
(xiv) appropriation or diversion of electricity by sale or order of any Governmental Authority; (xv) any other action by
any Governmental Authority which prevents or inhibits the Parties from carrying out their respective obligations
under this Agreement (including an unstayed order of a court or administrative agency having the effect of subjecting
the sales of energy output to federal or state regulation of prices and /or services); or (xvi) any utility power outage at
any Project Location.
"Generating Facility' means each photovoltaic, solar powered generating facility located at a Project Location, and
includes all associated photovoltaic panels, mounting assemblies, inverters, converters, metering, lighting fixtures,
transformers, ballasts, disconnects, combiners, switches, wires and other equipment that may be necessary to
connect such solar power plant to the applicable utility meter.
"Governmental Authority" means any federal, state, regional, town, county, city, municipal or local government
agency, department or regulatory body having jurisdiction under Applicable Law over the matter in question.
"Hazardous Substances" means (i) any hazardous, toxic, or dangerous wastes, substances, chemicals,
constituents, contaminants, pollutants, and materials and any other carcinogenic, liquids, corrosive, ignitable,
radioactive, reactive, toxic, or otherwise hazardous substances or mixtures (whether solids, liquids, gases) now or at
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Operation & Maintenance Agreement
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any time subject to regulation, control, remediation, or otherwise addressed under Applicable Laws; (ii) any
"hazardous substance" as defined by the Resource, Conservation and Recovery Act of 1976 (42 U.S.C. §6901 et
seq.), as amended, and regulations promulgated thereunder; (iii) any "hazardous, toxic or dangerous waste,
substance or material" specifically defined as such in 42 U.S.C. §9601 et seq.), as amended and regulations
promulgated thereunder; and (iv) any hazardous, toxic or dangerous waste, substance, or material as defined in any
so- called "superfund" or "superlien" law.
"Interest" shall mean interest calculated at the lesser of (i) the prime rate plus two percent (2 %) or (ii) the maximum
rate permitted by Applicable Law. The "prime rate" shall be "Prime Rate" of interest per annum for domestic banks
as published in The Wall Street Journal in the "Money Rates" section, or if such rate ceases to be published in The
Wall Street Journal or The Wall Street Journal ceases publication, such other rate as agreed by the Parties.
"O &M Commencement Date" means the first day of the month immediately following the later of (i) the full
execution of the ESC, and (ii) OpTerra ES's receipt of the Annual Maintenance and Monitoring Fee for the first O &M
Period.
"O &M Period" means each one -year period following the O &M Commencement Date.
"OpTerra ES" is defined in the Preamble.
"Party" and "Parties" are defined in the Preamble.
"Project Location" means that area or areas where the Generating Facilities are installed, as set forth in
Attachment A.
"Services" means the maintenance services to be performed by OpTerra ES in accordance with the terms and
subject to the conditions of this Agreement.
"Term" is defined in Section 2.01.
ARTICLE 2. TERM
Section 2.01 So long as Customer pays to OpTerra ES the Annual Maintenance and Monitoring Fee,
OpTerra ES will provide the Services with respect to the Generating Facilities at the Project Locations, all as described in
this Agreement, up to ten (10) years (the "Term") from the O &M Commencement Date on an annualized basis. The
Parties may agree to renew the Term for additional five -year periods. Customer may cancel service with one hundred
eighty (180) days prior written notice to OpTerra ES.
ARTICLE 3. ANNUAL MAINTENANCE AND MONITORING FEE; REPORTING
Section 3.01 The Annual Maintenance and Monitoring Fee for the first O &M and Monitoring Period shall be
invoiced by OpTerra ES to the Customer in a lump sum upon the execution of this Agreement. All subsequent Annual
Maintenance and Monitoring Fees will be invoiced by OpTerra ES on the first day of the corresponding O &M Period. The
Customer, or its designee, shall pay OpTerra ES such Annual Maintenance and Monitoring Fee, without any retention
amount withheld, within thirty (30) calendar days after its receipt of the corresponding invoice. Unless the Customer gives
OpTerra ES prior written notice of its intent to terminate the Services, any failure to timely pay the Annual Maintenance
and Monitoring Fee in accordance with this Agreement shall be a material default by Customer hereunder, and OpTerra
ES, in addition to any other legal, contractual and equitable remedies available to it, shall have no obligation thereafter to
provide Services.
Section 3.02 Any amount not paid when due shall, from and after the due date, bear Interest. Accrued and
unpaid Interest on past due amounts (including Interest on past due Interest) shall be due and payable upon demand.
Section 3.03 The Annual Maintenance and Monitoring Fee is not refundable for any reason.
Section 3.04 Upon completion of any maintenance or repair work, OpTerra ES will update service logs
detailing the work performed, location and any notes relevant to safe and efficient operations. These service logs will be
compiled and submitted to the Customer on a semi - annual basis.
Section 3.05 Authority to Subcontract. OpTerra ES may delegate its duties and performance under this
Agreement, and has the right to enter into agreements with any subcontractors and other service or material providers as
OpTerra ES may select in its discretion to perform the Services. OpTerra ES will not be required to enter into any
subcontracts with parties whom OpTerra ES has not selected or subcontractors whom OpTerra ES has objection to
using.
Section 3.06 Prevailing Wages. To the extent required by California Labor Code §1771 or other Applicable
Law, all employees of OpTerra Energy Services and OpTerra Energy Services' subcontractors performing Work at the
Project Location will be paid the per diem prevailing wages for the employee's job classification in the locality in which the
Work is performed. In accordance with California Labor Code § §1773 and 1773.2, Customer will obtain from the Director
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of Industrial Relations the general prevailing rate of per diem wages and the general prevailing rate for holiday and
overtime work, in the locality in which the Work is to be performed, for each craft, classification or type of worker needed
to execute the Work at the Project Location, and will cause copies of such determinations to be kept on file at its principal
office and posted at each Project Location. Customer will promptly notify OpTerra Energy Services of any changes to
any such prevailing wage determination.
ARTICLE 4. MAINTENANCE and Monitoring SERVICES
Section 4.01 OpTerra ES will provide the following O &M Services during the term:
(a) Inspection: Inspect PV modules, combiner boxes, inverters, isolation transformers, and PV service
roof penetrations and support structure on an annual basis.
(b) Testing: Perform voltage testing, amperage testing, and infrared scans of inverters, combiner boxes,
disconnects and switchgear on an annual basis.
(c) Cleaning:
(i) Remove dust, dirt, and debris from outside cabinets of combiner boxes, inverters, transformers, and
disconnect switches on an annual basis.
(ii) Wash PV modules per manufacturer's warranty specification, and remove accumulated dust and
debris on an annual basis for optimal system performance.
(iii) Identify broken modules on a site plan for follow up with the Customer for replacement.
(iv) Use clean fresh water with soft brush abrasion on problematic areas only. No detergents or
chemicals will be used on PV modules.
(v) Collect and properly dispose of run -off water where arrays are in parking lots per local authority
requirement.
(vi) Provide detailed annual inspection and cleaning report with before and after photo to customer
Section 4.02 Monitoring: Daily Performance Monitoring and Notification
i. Continuous monitoring of the Customer's System via experienced solar monitoring
technicians. Report performance anomalies to the Customer, resolve issues as needed.
ii. Operational status (inverter and system on /off) and performance alerts (actual vs. expected
performance) are continuously monitored by system computers and monitoring technicians
that automatically receive alerts of system anomalies.
iii. Monitoring technicians identify and respond to system alerts including contacting authorized
Customer personnel.
iv. Monitoring technicians actively coordinate with Customer personnel to resolve data
communication and meter data quality issues.
v. Troubleshoot network- related data outages.
Performance Monitoring Website
i. Customer website for monitoring operational and environmental performance of the solar
power system.
ii. All site data can be downloaded to the Customer's computer in Microsoft Excel format.
iii. Customer will be provided with login credentials for use during the term of the Agreement.
Section 4.03 Repair Services
If a Generating Facility is damaged and requires safe -off, repair, demolition and /or reconstruction, Customer
must contact the OpTerra ES PV Operations & Maintenance Manager. In the event of damage, any component
of the Generating Facility installed by OpTerra ES can be repaired or reconstructed by OpTerra ES at
Customer's request. Customer must submit a request for quotation to the OpTerra ES PV Operations &
Maintenance Manager. OpTerra ES will inspect the damage and provide a written quotation and complete
scope of work to Customer to restore the Generating Facility to normal operational condition. Before
proceeding with repairs, OpTerra ES and Customer must execute a work order, on OpTerra ES' form, for the
agreed scope of work and quotation amount. Repair work is done on a time and materials basis.
• Hourly technician labor rate $150 /hr.
• Materials markup 15%
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Section 4.04 Services and Equipment to Be Covered By Customer
(a) OpTerra ES's obligations under this Agreement are expressly conditioned upon Customer's payment
of the Annual Maintenance and Monitoring Fee and providing and being responsible for the following,
without cost to OpTerra ES:
(i) Making the Generating Facilities described herein available to OpTerra ES as of the O &M
Commencement Date.
(ii) Operating and maintaining security systems associated with the Generating Facilities.
(iii) Maintaining all landscaping in and around Generating Facilities including tree trimming.
(iv) Allowing OpTerra ES and its personnel access as necessary to the Generating Facilities, and
any related areas that may be reasonably necessary for performance of the Services,
including reasonable work, parking, and equipment staging areas.
(v) Allowing OpTerra ES and its personnel to access electrical power and other utilities then
existing at the Generating Facilities as necessary for OpTerra ES to satisfy its obligations
under this Agreement.
(vi) Remediating, pursuant to Applicable Law, any known Hazardous Substances encountered by
OpTerra ES during the performance of the Services which Hazardous Substances were not
deposited by OpTerra ES, including any backfill with clean soil as may be reasonably
required.
(vii) Insuring the Generating Facilities against loss due to acts of God and the public enemy; flood,
earthquake, tornado, storm, fire; civil disobedience, sabotage, and vandalism.
(b) OpTerra ES will have no obligation to provide the Services to the extent such provision of Services is
materially adversely affected by Customer's failure to satisfy the conditions set forth in this Agreement.
ARTICLE 5. WARRANTY
EXCEPT FOR THE WARRANTIES PROVIDED IN THIS ARTICLE 5, OPTERRA ES MAKES NO WARRANTIES IN
CONNECTION WITH THE SERVICES PROVIDED UNDER THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED IN
LAW, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE AND ANY IMPLIED WARRANTIES AGAINST INTELLECTUAL PROPERTY INFRINGEMENT. CUSTOMER
WILL HAVE NO REMEDIES AGAINST EITHER OPTERRA ES ORANY OPTERRA ES SUBCONTRACTOR OR VENDOR
FOR ANY DEFECTIVE MATERIALS OR EQUIPMENT INSTALLED, EXCEPT FOR THE REPAIR OR REPLACEMENT
OF SUCH MATERIALS OR EQUIPMENT IN ACCORDANCE WITH THE WARRANTIES INDICATED BELOW.
SPECIFICALLY, NEITHER OPTERRA ES, NOR OPTERRA ES's SUBCONTRACTORS OR VENDORS, WILL BE LIABLE
TO CUSTOMER FOR LOSS OF PROFITS OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR
PUNITIVE DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY.
Section 5.01 OpTerra ES warrants to Customer that material and equipment furnished under this
Agreement will be of good quality and new, unless otherwise specifically required or permitted by this Agreement.
OpTerra ES further warrants that its workmanship provided hereunder, including its subcontractors' workmanship, will be
free of material defects for a period of one (1) year from the date of installation ( "OpTerra ES Warranty ").
Section 5.02 Equipment and material warranties that exceed the OpTerra ES Warranty period will be
provided directly by the equipment and /or material manufacturers and such warranties will be assigned directly to
Customer, after the one (1) year period. During the OpTerra ES Warranty period, OpTerra ES will be Customer's agent
in working with the equipment and material manufacturers in resolving any equipment or material warranty issues. If any
material defects are discovered within the OpTerra ES Warranty period, OpTerra ES, or OpTerra ES's subcontractors,
will correct its defects, and /or OpTerra ES will work with the equipment or material manufacturer as Customer's agent to
facilitate the manufacturer's correction of the equipment or material defect. Such warranty services will be performed in a
timely manner and at the reasonable convenience of Customer. If a warranty issue arises on any equipment or material
installed after the OpTerra ES Warranty period, and the equipment or material has a warranty period that exceeds one
(1) year, Customer will contact the manufacturer directly to resolve such warranty issues and Customer acknowledges
that the manufacturer will have sole responsibility for such issues.
Section 5.03 The warranties in this ARTICLE 5 expressly exclude any remedy for damage or defect caused
by improper or inadequate maintenance of the installed equipment by service providers other than OpTerra ES or its
subcontractors, corrosion, erosion, deterioration, abuse, modifications or repairs not performed by an authorized OpTerra
ES subcontractor, improper use or operation, or normal wear and tear under normal usage. Unless otherwise specified,
all warranties hereunder, including without limitation those for defects, whether latent or patent, in design, engineering, or
construction, will terminate one (1) year from the date of installation; and thereafter, OpTerra ES will have no liability for
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breach of any warranty or for any latent or patent defect of any kind pursuant to California Code of Civil Procedure
§ §337.15 and 338.
ARTICLE 6. CONSENTS
Whenever a Party's consent, approval, satisfaction, or determination will be required or permitted under this
Agreement, and this Agreement does not expressly state that the Party may act in its sole discretion, such consent,
approval, satisfaction, or determination will not be unreasonably withheld, qualified, conditioned, or delayed, whether or
not such a "reasonableness" standard is expressly stated in this Agreement. Whenever a Party's cooperation is required
for the other Party to carry out its obligations hereunder, each Party agrees that it will act in good faith and reasonably in
so cooperating with the other Party or its designated representatives or assignees or subcontractors. Each Party will
furnish decisions, information, and approvals required by this Agreement in a timely manner so as not to delay the other
Party's performance under this Agreement.
ARTICLE 7. LIMITATION OF LIABILITY; INSURANCE
Section 7.01 Waiver of Consequential Damages and Limitation of Liability. The liability of a defaulting Party
will be limited to direct, actual damages. Neither Party shall be liable to the other Party for any special, indirect,
incidental or consequential damages whatsoever, whether in contract, tort (including negligence) or strict liability,
including, but not limited to, operational losses in the performance of business such as lost profits or revenues or any
increase in operating expense. Additionally, each Party waives any claims for negligence against the other Party to the
greatest extent permitted by Applicable Law.
Section 7.02 OpTerra ES Insurance. OpTerra ES will maintain, or cause to be maintained, for the duration
of this Agreement, the insurance coverage outlined in (a) through (f) below, and all such other insurance as required by
Applicable Law. Evidence of coverage will be provided to Customer via an insurance certificate.
(a) Workers' Compensation /Employers Liability for states in which OpTerra ES is not a qualified self- insured. Limits
as follows:
Workers' Compensation: Statutory
Employers Liability: Bodily Injury by accident $1,000,000 each accident
Bodily Injury by disease $1,000,000 each employee
Bodily Injury by disease $1,000,000 policy limit
(b) Commercial General Liability insurance with limits of:
* $2,000,000 each occurrence for Bodily Injury and Property Damage
* $4,000,000 General Aggregate - other than Products /Completed Operations
* $4,000,000 Products /Completed Operations Aggregate
* $2,000,000 Personal & Advertising Injury
* $ 100,000 Damage to premises rented to OpTerra ES
Coverage to be written on a claims made form. Coverage to be at least as broad as ISO form CG 0001 (04/13)
or its equivalent forms, without endorsements that limit the policy terms with respect to: (1) provisions for
severability of interest or (2) explosion, collapse, underground hazard.
(c) Auto Liability insurance for owned, hired and non -owned vehicles with limits of $1,000,000 per accident.
Coverage to be written on an occurrence form.
(d) Professional Liability insurance with limits of:
$1,000,000 per occurrence
$1,000,000 aggregate
Coverage to be written on a claims -made form.
(e) Umbrella /Excess Liability Insurance. Limits as follows:
$1,000,000 each occurrence
$1,000,000 aggregate
Coverage terms and limits to apply excess of the per occurrence and /or aggregate limits provided for
Commercial General Liability and Professional Liability written on a claims made form. Coverage terms and
limits also to apply in excess of those required for Employers Liability and Auto Liability written on an occurrence
form.
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(f) Policy Endorsements.
* The insurance provided for Workers' Compensation and Employers' Liability above will
contain waivers of subrogation rights against Customer.
* The insurance provided for Commercial General Liability and Auto Liability above will:
(i) include Customer as an additional insured with respect to Work performed under this
Agreement, and
(ii) provide that the insurance is primary coverage with respect to all insureds.
ARTICLE 8. FORCE MAJEURE
Neither Party will be considered to be in default in the performance of any material obligation under this Agreement
(other than the obligation to make payments) when a failure of performance will be due to an event of Force Majeure.
Neither Party will be relieved of its obligation to perform if such failure is due to causes arising out of its own negligence
or due to removable or remediable causes which it fails to remove or remedy within a reasonable time period. Either
Party rendered unable to fulfill any of its obligations under this Agreement by reason of an event of Force Majeure will
give prompt written notice of such fact to the other Party.
ARTICLE 9. DISPUTE RESOLUTION; APPLICABLE LAW; VENUE; SEVERABILITY
If a dispute arises out of or relates to this Agreement, or the services contemplated by this Agreement (a "Dispute "),
either Party may initiate the dispute resolution process set forth in this ARTICLE 9 by giving notice to the other Party.
Senior executives for the Parties will meet, within thirty (30) calendar days after notice of the Dispute, in an attempt to
resolve the Dispute and any other identified disputes or any unresolved issues that may lead to a dispute. If the senior
executives of are unable to resolve a Dispute or if a senior management conference is not held within the time provided
herein, either Party may submit the Dispute to mediation.
If the Dispute is not settled by senior management conference, the Parties will endeavor to settle the Dispute by
mediation under the Commercial Mediation Procedures of the American Arbitration Association ( "AAA "). Mediation is a
condition precedent to arbitration or the institution of legal or equitable proceedings by either Party. Once one Party files
a request for mediation with the other Party and with the American Arbitration Association, the Parties agree to conclude
the mediation within sixty (60) calendar days after filing the request. Either Party may terminate the mediation at any
time after the first session, but the decision to terminate must be delivered in person by the Party's representative to the
other Party's representative and the mediator.
If the Dispute is not resolved by mediation within sixty (60) calendar days after the date of filing of the request for
mediation, then the exclusive means to resolve the Dispute is final and binding arbitration. Either Party may initiate
arbitration proceedings by notice to the other Party and the American Arbitration Association. The following provisions
apply to all arbitration proceedings pursuant to this Article: (i) The place of arbitration will be the American Arbitration
Association office closest to where the Services were performed; (ii) one arbitrator will conduct the arbitral proceedings in
accordance with the Commercial Arbitration Rules and Mediation Procedures (Excluding the Procedures for Large,
Complex Commercial Disputes) of the American Arbitration Association currently in effect ( "Arbitration Rules') (to the
extent of any conflicts between the Arbitration Rules and the provisions of this Agreement, the provisions of this
Agreement prevail); (iii) the Parties will submit true copies of all documents considered relevant with their respective
statement of claim or defense, and any counterclaim or reply (in the discretion of the arbitrator, the production of
additional documents that are relevant and material to the determination of the Dispute may be required); (iv) the
arbitrator does not have the power to award, and may not award, any punitive, indirect or consequential damages
(however denominated); all arbitration fees and costs are to be shared equally by the parties, regardless of which Party
prevails, and each Party will pay its own costs of legal representation and witness expenses; (v) the award must be in the
form of a reasoned award; (vi) the Dispute will be resolved as quickly as possible, and the arbitrator will endeavor to
issue the arbitration award within six (6) months after the date on which the arbitration proceedings were commenced;
and (vii) the award will be final and binding and subject to confirmation and enforcement proceedings in any court of
competent jurisdiction.
This Agreement is governed by and must be interpreted under the laws of the State where the Services are
performed, without regard to the jurisdiction's choice of law rules.
If any term of this Agreement is declared by a court to be illegal, invalid or unenforceable, the legality, validity and
enforceability of the other terms of this Agreement will not be affected or impaired thereby, and the rights and obligations
of the Parties will be enforced as if the illegal, invalid or unenforceable term were revised to the minimum extent
necessary to make such term legal, valid and enforceable.
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Operation & Maintenance Agreement
The City of Dublin and OpTerra Energy Services
ARTICLE 10. NOTICE
Any notice required or permitted hereunder shall be deemed sufficient if given in writing and delivered personally or
sent by registered or certified mail, return receipt requested, postage prepaid, or delivered to a nationally recognized express
mail service, charges prepaid, receipt obtained, to the address shown below or to such other persons or addresses as are
specified by similar notice.
TO OPTERRA ES: OpTerra Energy Services
500 121h Street, Suite 300
Oakland CA, 94607
Attention: Carrie Dixon, Project Manager
With a COPY TO: OpTerra Energy Services
150 East Colorado Boulevard, Suite 360
Pasadena, CA 91105
Tel: 626- 377 -4948
Attention: Contract Administrator
TO CUSTOMER: The City of Dublin, California
100 Civic Plaza
Dublin, CA, 94568
Tel: (925) 833 -6630
Fax: (925) 829 -9248
Attention: Dan Stevenson, Public Works Manager
ARTICLE 11. CONSTRUCTION OF AGREEMENT
This Agreement is the result of arms - length negotiations between two sophisticated parties and ambiguities or
uncertainties in it shall not be construed for or against either Party, but shall be construed in a manner that most accurately
reflects the intent of the Parties when such Agreement was executed. Each of the Parties acknowledges and agrees that
neither Party has provided the other with any legal, accounting, regulatory, financial or tax advice with respect to any of the
transactions contemplated hereby, and each Party has consulted its own legal, accounting, regulatory, financial and tax
advisors to the extent it has deemed appropriate.
ARTICLE 12. BINDING EFFECT
Except as otherwise provided herein, the terms and provisions of this Agreement shall apply to, be binding upon,
and inure to the benefit of the Parties hereto and their respective heirs, legal representatives, successors, and permitted
assigns.
ARTICLE 13. NO WAIVER
The failure of OpTerra ES or Customer to insist upon the strict performance of this Agreement shall not constitute or
be construed as a waiver or relinquishment of either Party's right to thereafter enforce the same in accordance with this
Agreement in the event of a continuing or subsequent default on the part of OpTerra ES or Customer.
ARTICLE 14. HEADINGS
Headings and subtitles used throughout this Agreement are for the purpose of convenience only, and no heading or
subtitle shall modify or be used to interpret the text of any section.
ARTICLE 15. COUNTERPARTS; INTEGRATION
This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of
which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement
constitutes the entire agreement among the Parties relating to the subject matter hereof and supersedes any and all previous
agreements and understandings, oral or written, relating to the subject matter hereof. Delivery of an executed counterpart of
a signature page of this Agreement by email or fax shall be effective as delivery of a manually executed counterpart of this
Agreement.
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Operation & Maintenance Agreement
The City of Dublin and OpTerra Energy Services
IN WITNESS WHEREOF, and intending to be legally bound, the Parties hereto subscribe their names to this Agreement
by their duly authorized officers on the date first above written.
OPTERRA ES: CUSTOMER:
OpTerra Energy Services, Inc. City of Dublin
,s
Title: Senior Vice President, :
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Operation & Maintenance Agreement
The City of Dublin and OpTerra Energy Services
ATTACHMENT A
PROJECT LOCATIONS
Dublin Civic Center
;100 Civic Plaza, Dublin CA94568
Parking Canopy
Dublin Library
200 Civic Plaza, Dublin CA94568
Parking Canopy
Dublin Senior Center
7600 Amador Valley Blvd, Dublin CA94568
Rooftop
Fire Station 16
7494 Donohue Dr, Dublin CA94568
Rooftop
Fire Station 17
6200 Madigan Dr, Dublin CA94568
Parking Canopy
Fire Station 18
4800 Fallon Dr, Dublin CA94568
Parking Canopy
Shannon Center
11600 Shannon Ave, Dublin CA94568
Parking Canopy
Rev. Date: February, 2017 Page 10 of 10 O &M
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