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14-160 Cupertino Electric Inc OFFICE OF THE CITY CLERK CITY HALL 10300 TORRE AVENUE•CUPERTINO, CA 95014-3255 TELEPHONE: (408)777-3223•FAX: (408)777-3366 WEBSITE:WWW.CUPE�rtino.org CUPERTINO October 6, 2014 Cupertino Electric Inc. Attention: Kris Fabing 1132 North Seventh Street San Jose, CA 95112 Re: Operation and Maintenance agreement for the City of Cupertino's Service Center Solar Project. Enclosed for your records is a fully executed original copy of the agreement with the City of Cupertino. If you have any questions, please contact the Public Works Department at (408) 777-3354. Sincerely, Andrea Sanders Senior Office Assistant City Clerk's Office Enclosure cc: Public Works 10 AGREEMENT BETWEEN THE CITY OF CUPERTINO AND CUPERTINO ELECTRIC INC. FOR THE OPERA'.CION AND MAINTENANCE OF THE CITY OF CUPERTINO'S SERVICE CENTER SOLAR PROTECT THIS AGREEMENT, for reference dated 20(i is by and between CITY OF CUPERTINO, a municipal corporation (hereinafter referred to as "City"), and CUPERTINO ELECTRIC INC., A California corporation, whose address is 1132 North Seventh Street, San Jose, CA 95112 (hereinafter referred to as "Contractor"), and is made with reference to the following: RECIT.A.LS: A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the Constitution and. the statutes of the State of California and the Cupertino Municipal Code. B. Contractor is specially trained,experienced and competent to perform the special services which will be required by this Agreement; and C. Contractor possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement on the terms and conditions described herein. D. City and Contractor desire to enter into an agreement for the Operation and Maintenance of the City of Cupertino's Service Center Solar Project upon the terms and conditions herein. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM: The term of this agreement shall bey te,n (10) year from the start date of the Page I of 14 Operation and Maintenance Agreement Service Center Solar Project Cupertino Electric Inc. I 4� agreement. The City shall retain the option_extend t e_terxr.�-©�the_ .meet-for two (2) additional five (5) year terms, for a possible total of twenty (20)_year.sThe agreement will start when the construction and commissioning of the system is complete and Final Acceptance by the City, fl-ten a Notice to Proceed for the agreement will be issued. The date in the Notice to Proceed shall be the annual renewal date. Any extension shall be accomplished by the City providing a written notice of extension to CONTRACTOR at least 30 days prior to expiration of the term. Any extension shall contain the same provisions as t:he original contract. 2. SERVICES TO BE PERFORMED: Contractor agrees, at its own cost and expense, to furnish all labor, tools, equipment, materials, except as otherwise specified, and to do all work strictly in accordance with Document 00700 General Conditions, Document 00800 Special Conditions and Teclnical Provisions are hereby referred to and expressly made a part hereof with the same force and effect as if the Name were fully incorporated herein. 3. COMPENSATION TO CONTRACTOR: Contractor shall be compensated for services performed pursuant to this Agreement in the amount and manner set forth in Exhibit "A", title Compensation, which is attached hereto and incorporated herein by this reference. For the performance of the services described herein by Contractor, City shall pay Contractor yearly within 30 calendar days of the start date and the subsequent annual renewal dates, less any deductions for liquidated damages, payable upon submission by Contractor invoice; provided, however, that the total sum payable to Contractor shall not exceed Thirty Four Thousand Eight Hundred Fifty Three Dollars and Seventy Two Cents ($ 34,853.72) for the original ten-year term of the contract. Any extensions of this agreement shall be at the rates set forth in Exhibit "A". 4. LIQUIDATED DAMAGES It is agreed by the parties to the Agreement that in case all the work called for under the Agreement is not completed before or upon the expiration of the time limit as set forth in the Technical Provision, damage will be sustained by the City, and that it is and will be impracticable to determine the actual damage which the City will sustain in Page 2 of 14 Operation and Maintenance Agreement Service Center Solar Project Cupertino Electric Inc. the event of and by reason of such delay. It ils therefore agreed that the Contractor will pay to the City the sum of One Hundred Dollars ($100.00) per day for each and every day's delay beyond the time prescribed to complete the work; and the Contractor agrees to pay such liquidated damages as herein provided, and in case the same are not paid, agrees that the City may deduct the amount thereof from any money due or that may become due the Contractor under the Agreement. This does not relieve the Contractor from his responsibility of completing the required services that were not completed as scheduled. Any service not completed as scheduled shall be completed as soon as possible and at the Contractor's expense. It is further agreed that in case the work called for under the Agreement is not finished and completed in all parts and requirements within the time specified, the City shall have the right to extend the time for con-t- letion or not, as may seem best to serve the interest of the City; and if it decides to extend the time limit for the completion of the Agreement, it shall further have the right to charge the Contractor, his or her heirs; assigns, or sureties, and to deduct from the final payment for the work, all or any part, as it may deem proper, of the actual costs and overhead expenses which are directly chargeable to the Agreement, and which accrue during the period of such extensions. The Contractor shall not be assessed v"Ti.th liquidated damages during any delay in the completion of the work caused by an act of God or of the public enemy, acts of the City, fire, flood, epidemic, quarantine restriction, strikes, freight embargoes, and unusually severe weather or delays of subcontractors due to such causes beyond Contractor's reasonable control; provided that the Contractor shall, within one (1) day from the Contractor's discovery and knowledge of such delay,notify the City in writing of the causes of delay. The City shall ascertain the facts and the extent of the delay, and its findings of the facts thereon shall be final and conclusive. 5. STANDARD OF CARE: Contractor agrees to perform all services hereunder in a maruner commensurate with the prevailing standards of like professionals in the San Francisco Bay Area and agrees that all services shall be performed by qualified and experienced persorunel who are not employed by the City nor have any contractual relationship with City. 6. INDEPENDENT PARTIES: City and Contractor intend that the relationship between them created by this Page 3 of 14 Operation and Maintenance Agreement Service Center Solar Project Cupertino Electric Inc. i Agreement is that of employer-independent contractor. The mariner and means of conducting the work are under the control of Contractor, except to the extent they are limited by statute, rule or regulation and the express terms of this Agreement. No civil service status or other right of employment 1�vill be acquired by virtue of Contractor's services. None of the benefits provided by City to its employees, including but not limited to unemployment insurance, workers' compensation plans, vacation and sick leave are available from City to Contractor, its employees or agents. Deductions shall not be made for any state or federal taxes, FICA payments, PERS payments, or other purposes normally associated with an employer-employee relationship from any fees due Contractor. Payments of the above items, if required, are the responsibility of Contractor. 7. IMMIGRATION REFORM AND CONTROL ACT (IRCA): Contractor assumes any and all responsibility for verifying the identity and employment authorization of all of its employees performing work hereunder, pursuant to all applicable IRCA or other federal, or state rules and regulations. Contractor shall indemnify and hold City harmless from and against any loss, damage, liability, costs or expenses arising from any noncompliance of this provision by Contractor. 8. NON-DISCRIMINATION: Consistent with City's policy that harassment and discrimination are unacceptable employer/employee conduct, Contractor agrees that harassment or discrimination directed toward a job applicant, a City employee, or a citizen by Contractor or Contractor's employee on the basis of race, religious creed, color, national origin, ancestry, handicap, disability, marital status, pregnancy, sex, age, or sexual orientation will not be tolerated. Contractor agrees that any and all violations of this provision shall constitute a material breach of this Agreement. 9. HOLD HARMLESS: Contractor shall, to the fullest extent allowed by law, indemnify, and when the City requests with respect to a claim provide defense of, defend, and hold harmless the City and its officers, officials, agents, employees and volunteers against any and all liability, claims, stop notices, actions, causes of action or demands whatsoever from and against any of them, including any injury to or death of any person or damage to Page 4 of 14 Operation and Maintenance Agreement Service Center Solar Project Cupertino Electric Inc. I property or other liability of any nature, to the extent arising out of, pertaining to, or related to the performance of this Agreement by Contractor or Contractor's employees, officers, officials, agents or independent contractors. Contractor shall not be obligated under this Agreement to indemnify City to the extent that the damage is caused by the sole or active negligence or willful misconduct of City, its agents or employees. Such costs and expenses shall include reasonable attorneys' fees of counsel, expert fees and all other costs and fees of litigation. Contractor agrees to obtain executed indemnity agreements with provisions identical to those set forth here in these sections from each and every subcontractor or any other person or entity involved by, for, with, or on behalf of Contractor in the performance of this agreement. If Contractor fails to obtain such indemnity obligations from others as required here, Contractor agrees to be fully responsible according to the terms of this section. With respect to third party claims against Contractor, Contractor waives any and all rights to any type of express or implied indemnity against City, and each of their officers, employees, consultants and agents, including, but not limited to, the Council, City representative, except to the extent the City is found liable for a claim. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Contractor, its Subcontractors of any tier, or the officers or agents of any of them. To the furthest extent permitted by law (including, without limitation, Civil Code Section 2782), the indemnities, releases of liability and limitations of liability, and limitations of remedy expressed throughout the Contract Documents shall apply even in the event of breach of contract,negligence (active or passive), fault or strict liability of the party[s] indemnified, released, or limited in liability, and shall survive the termination, rescission, breach, or completion of the Contract Documents. If Contractor fails to perform any of these defense or indemnity obligations, City may in its discretion back charge Contractor for its costs and damages resulting there from and withhold such sums from progress payments or other contract monies which may become due. Page 5 of 14 Operation and Maintenance Agreement Service Center Solar Project Cupertino Electric Inc. - I 10. INSURANCE: On or before the commencement of the terms of this Agreement, Contractor shall furnish City with certificates showing the type, amount, class of operations covered, effective dates and dates of expiration of insurance coverage in compliance with paragraphs 10A, B, C and D. Such certificates, which do not limit Contractor's indemnification, shall also contain substantially the following statement: "Should any of the above insurance covered by this certificate be canceled or coverage reduced before the expiration date thereof, the insurer affording coverage shall provide thirty (30) days' advance written notice to the City of Cupertino by certified mail, "Attention: City Manager." It is agreed that Contractor shall maintain in force at all times during the performance of this Agreement all appropriate coverage of insurance required by this Agreement with an insurance company that is acceptable to City and licensed to do insurance business in the State of California. Endorsements naming the City as additional insured shall be submitted with the insurance certificates. A. COVERAGE: Contractor shall maintain the following insurance coverage: (1) Workers' Compensation: Statutory coverage as required by the State of California. (2) Liability: Commercial general liability coverage in the following minimum limits: Bodily Injury: $2,000,000 each occurrence $4,000,000 aggregate -all other Property Damage: $500,000 each occurrence $1,000,000 aggregate If submitted, combined single limit policy with $2,000,000 per occurrence; aggregate limits in the amounts of $4,000,000 will be considered equivalent to the required minimum limits shown above. (3) Automotive: Comprehensive automobile liability coverage in the following minimum limits: Page 6 of 14 Operation and Maintenance Agreement Service Center Solar Project Cupertino Electric Inc. Bodily injury: $500,000 each occurrence Property Damage: $500,000 each occurrence or Combined Single Limit: $1,000,000 each occurrence B. SUBROGATION WAIVER: Contractor agrees that in the event of loss due to any of the perils for which it has agreed to provide comprehensive general and automotive liability insurance, Contractor shall look solely to its insurance for recovery. Contractor hereby grants to City, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Contractor or City with respect to the services of Contractor herein, a waiver of any right to subrogation which any such insurer of said Contractor may acquire against City by virtue of the payment of any loss under such insurance. C. FAILURE TO SECURE: If Contractor at any time during the ter)rnn hereof should fail to secure or maintain the foregoing insurance, City shall be permitted to obtain such insurance in the Contractor's name or as an agent of the Contractor and shall be compensated by the Contractor for the costs of the insurance premiums at the maximum rate permitted by law and computed from the date written notice is received that the premiums have not been paid. D. ADDITIONAL INSURED: City, its City Council, boards and commissions, officers, employees, and volunteers shall be named as an additional :insured under all insurance coverages, except worker's compensation insurance. The naming of an additional insured shall. not affect any recovery to which such additional insured would be entitled Under this policy if not named as such additional insured. An additional insured named herein shall not be held liable for any premium, deductible portion of any loss, or expense of any nature on this policy or any extension thereof. Any other insurance held by an additional insured shall not be required to contribute anything toward any loss or expense covered by the insurance provided by this policy. E. SUFFICIENCY OF INSURANCE: The insurance limits required by City are not represented as being sufficient to protect Contractor. Contractor is advised to consult Contractor's insurance broker to determine adequate coverage for Contractor. Page 7 of 14 Operation and Maintenance Agreement Service Center Solar Project Cupertino Electric Inc. 1 - 11. BONDS: Notwithstanding section 2.2 of Doc. 00700 General Conditions, Bonds are not required for this Agreement. 12. PROHIBITION AGAINST TRANSFERS: Contractor shall not assign, sublease, hypothecate, or transfer this Agreement, or any interest therein, directly or indirectly, by operation of law or otherwise, without prior written consent of City. Any attempt to do so without said consent shall be null and void, and any assignee, sublessee, hypothecate or transferee shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. However, claims for money by Contractor from City under this Agreement may be assigned to a bank, trust company or other financial institution without prior written consent. Written notice of such assignment shall be promptly furnished to City by Contractor. The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Contractor, or of the interest of any general partner or joint venturer or syndicate member or cotenant, if Contractor is a partnership or joint venture or syndicate or cotenancy, which shall result in changing the control of Contractor, shall be construed as an assignment of this Agreement. Control means fifty percent (50%) or more of the voting power of the corporation. 13. SUBCONTRACTOR APPROVAL: Unless prior written consent from City is obtained, only those people and subcontractors whose names are listed in Contractor's bid shall be used in the performance of this Agreement. Requests for additional subcontracting shall be submitted in writing, describing the scope of work to be subcontracted and the name of the proposed subcontractor. Such request shall set forth the total price or hourly rates used in preparing estimated costs for the subcontractor's services. Approval of the subcontractor may, at the option of City,be issued in the form of a Work Order. In the event that Contractor employs subcontractors, such subcontractors shall be required to furnish proof of workers' compensation insurance and shall also be required to carry general and automobile liability insurance in reasonable conformity to the insurance carried by Contractor. In addition, any work or services subcontracted hereunder shall be subject to each provision of this Agreement. Page 8 of 14 Operation and Maintenance Agreement Service Center Solar Project Cupertino Electric Inc. 14. PERMITS AND LICENSES: Contractor, at its sole expense, shall obtain and maintain during the term of this Agreement, all appropriate permits, certificates and licenses, including a City Business License, that may be required in connection with the performance of services hereunder. 15. REPORTS: Each and every report, draft, work product, map, record and other document reproduced, prepared or caused to be prepared by Contractor pursuant to or in corunection with this Agreement shall be the exclusive property of City. Contractor may retain a copy of any report furnished to the City pursuant to this Agreement. No report, information nor other data given to or prepared or assembled by Contractor pursuant to this Agreement shall be made available to any individual or organization by Contractor without prior approval by City. Contractor shall, at such time and in such form as City may require, furnish reports concerning the status of services required under this Agreement. 16. RECORDS: Contractor shall maintain complete and accurate records with respect to sales, costs, expenses, receipts and other such information required by City that relate to the performance of services under this Agreement:. Contractor shall maintain adequate records of services provided in sufficient detail to permit an evaluation of services. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. Contractor shall provide free access to such books and records as may be reasonable required for work performed to the representatives of City or its designees at all proper times, and gives City the right to examine and audit same, and to make transcripts therefrom as necessary, zund to allow inspection of all work, data, documents, proceedings and activities related to this Agreement. Such records, together with supporting documents, shall be kept separate from other documents and records and shall be maintained for a period of three (3) years after receipt of final payment. If supplemental examination or audit of the records is necessary due to concerns raised by City's preliminary examination or audit of records, and the City's supplemental examination or audit of the records discloses a failure to adhere to Page 9 o :14 Operation and Maintenance Agreement Service Center Solar Project Cupertino Electric Inc. appropriate internal financial controls, or other breach of contract or failure to act in good faith, then Contractor shall reimburse City for all reasonable costs and expenses associated with the supplemental examinationn or audit. 17. NOTICES: All notices, demands, requests or approvals to be given under this Agreement shall be given in writing and conclusively shall be deemed served when delivered personally or on the second business day aftE,r the deposit thereof in the United States Mail, postage prepaid, registered or certified, addressed as hereinafter provided. All notices, demands, requests, or approvals from Contractor to City shall be addressed to City at: City of Cupertino 10300 Torre Avenue Cupertino CA 95014 Attention: Katy Jensen All notices, demands, requests, or approvals from City to Contractor shall be addressed to Contractor at: Cupertino Electric Inc. 1132 North Seventh Street San Jose, CA 95112 Attention: 'hi'iS 18. URBAN RUNOFF MANAGEMENT: The Contractor shall avoid creating excess dust when breaking asphalt or concrete and during excavation and grading. If water is used for dust control, contractor shall use as little as necessary. Contractor shall take all steps necessary to keep wash water out of the streets, gutters and storm drains. The Contractor shall develop and implement erosion and sediment control to prevent pollution of storm drains. Such control.includes but is not limited to: A. Use storm drain inlet protection devices such as sand bag barriers, filter fabric fences, block and gravel filters. (Block :storm drain inlets prior to the start of the rainy season (October 15), in site de-watering activities and saw-cutting activities; shovel or vacuum saw-cut slurry and remove from the site). B. Cover exposed piles of soil or construction material with plastic sheeting. All construction materials must be stored in containers. Page 10 of 14 Operation and Maintenance Agreement Service Center Solar Project Cupertino Electric Inc. C. Sweep and remove all materials from paved surfaces that drain to streets, gutters and storm drains prior to rain as well as at the end of the each work day. At the completion of the project, the street shall be washed and the wash water shall be collected and disposed of offsite in an appropriate location. D. After breaking old pavement, Contractor shall remove all debris to avoid contact with rainfall or runoff. E. Contractor shall maintain a clean work area by removing trash, litter, and debris at the end of each work day. Contractor shall also clean up any leaks, drips, and other spills as they occur. The objective is to ensure that the City and County of Santa Clara County-Wide Clean Water Program is adequately enforced. These controls should be implemented prior to the start of construction, up-graded as required, maintained during construction phases to provide adequate protection, and removed at the end of construction. These recommendations are intended -to be used in conjunction with the States Best Management Practices Municipal and Construction Handbooks, local program guidance materials from municipalities, Section 7.1.01 of the Standard Specifications and any other appropriate documents on storm water quality controls for construction. Failure to comply with this program will result in the issuance of noncompliance notices, citations, project stop orders or fines. 'The fine for noncompliance of the above program is two hundred and fifty dollars ($250.00) per occurrence per day. The State under the Federal Clean Water Act can also impose a fine on the contractor, pursuant to Cal. Water Code '13385. 19. TERMINATION: In the event Contractor fails or refuses -to perform any of the provisions hereof at the time and in the manner required hereunder, Contractor shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) days after receipt by Contractor ftom City of written notice of default, specifying the nature of such default and the steps necessary to cure such default, City may terminate the Agreement forthwith by giving to the Contractor written notice thereof. City shall have the option, at its sole discretion and without cause, of terminating this Agreement by giving seven (7) days' prior written notice to Contractor as provided herein. Upon termination of this Agreement, each party shall pay to the other party that portion of compensation specified in this Agreement that is earned and unpaid Page 11 of 14 Operation and Maintenance Agreement Service Center Solar Project Cupertino Electric Inc. prior to the effective date of termination. 20. COMPLIANCES: Contractor shall comply with all laws, state or federal and all ordinances, rules and regulations enacted or issued by City. 21. CONFLICT OF LAW: This Agreement shall be interpreted under, and enforced by the laws of the State of California excepting any choice of law rules which may direct the application of laws of another jurisdiction. The Agreement and obligations of.the parties are subject to all valid laws, orders, rules, and regulations of the authorities having jurisdiction over this Agreement (or the successors of those authorities) Any suits brought pursuant to this Agreement shall be filed with the courts of the County of Santa Clara, State of California. 22. ADVERTISEMENT: Contractor shall not post, exhibit, display or allow to be posted, exhibited, displayed any signs, advertising, show bills, lithographs, posters or cards of any kind pertaining to the services performed under this Agreement unless prior written approval has been secured from City to do otherwise. 23. WAIVER: A waiver by City of any breach of any term, covenant, or condition contained herein, shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition contained herein, whether of the same or a different character. Page 12 of 14 Operation and Maintenance Agreement Service Center Solar Project Cupertino Electric Inc. 24. INTEGRATED CONTRACT: This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties herel`o, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions hereof. Any modification of this Agreement will be effective only by written execution signed by both City and Contractor. 25. INSERTED PROVISIONS: Each provision and clause required by law to be inserted into the Agreement shall be deemed to be enacted herein, and the Agreement shall be read and enforced as though each were included herein. If through mistake or otherwise, any such provision is not inserted or is not correctly inserted, the Agreement shall be amended to make such insertion on application by either party. 26. CAPTIONS: The captions in this Agreement are for convenience only, are not a part of the Agreement and in no way affect, limit or amplify the terms or provisions of this Agreement. Page 13 of 14 Operation and Maintenance Agreement Service Center Solar Project Cupertino Electric Inc. I P.O. No. 643V--s IN WITNESS WHEREOF, the parties have caused the Agreement to be executed on the day and year first above written. CO AC R CITY OF CUPERTINO Cup r je1 i Inc. A Municipal Corporation By B�_ Timm Borden, Director of Public Works Name PAUL 412WkU �,I ,,r Date__ � Title V p( ' �( OC�1 on�-, �1 Date `z 0 RECOMMENDED FOR APPROVAL: Bye Address: Cupertino Electric Inc. 1132 North Seventh Street San Jose, CA 95112 APPRO-VED AS TO FORM: By , Carol Korade, City Attorney ATTEST: Grace Schmidt, City Clerk Contract Amount: $34,853.72 Account No. : 420-9270-9300 14 to Operation and Maintenance Agreement Page 14 of Service Center Solar Project Cupertino Electric Inc. Project No.2014-03 EXHIBIT A COMPENSATION A. Maximum Compensation. Contractor shall be compensated for services :performed pursuant to this Agreement in the amount and manner set forth in this Exhibit "A", title Compensation, which is attached hereto and incorporated herein by this reference. For the performance of the services described herein by Contractor, City shall pay Contractor yearly within 30 calendar days of the start date and the subsequent annual renewal dates, less any deductions for liquidated damages, payable upon submission by Contractor invoice; provided, however, that the total sum payable to Contractor shall not exceed Thirty Four Thousand Eight ][hundred Fifty Three Dollars and Seventy Two Cents ($ 34,853.72) for the original terns of the contract. Any extensions of this agreement shall be at the rates set forth in this Exhibit "A". City of Cupertino Exhibits A Cupertino Electric Inc. Page 1 of 2 Operating and Maintenance Agreement I Project No.2014-03 Annual Cost for O&M O&M Per Year Year Cost 1 3,111.00 2 3,188.78 3 3,268.49 4 3,350.21 5 3,433.96 6 3,519.81 7 3,607.81 8 3,698.00 9 3,790.45 10 3,885.21 Total of 10 Yr. O&M $34,853.72 11 3,982.34 12 4,081.90 13 4,183.95 14 4,288.55 15 4,395.76 Total of 5 Yr. O&M 1st Extension $20,932.50 16 4,505.66 17 4,618.30 18 4,733.75 19 4,852.10 20 4,973.40 Total of 5 Yr. O&M 2nd Extension $23,683.21 City of Cupertino Exhibits A Cupertino Electric Inc. Page 2 of 2 Operating and Maintenance Agreement