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A8470 - ENGIE SERVICES U.S. INC.
AMENDMENT NO. 6 TO POST-CONTRACT SERVICES AGREEMENT NO. A8470 BETWEEN THE CITY OF PALM SPRINGS AND ENGIE U.S. SERVICES, INC. This Amendment No. 6 to the Contract Services Agreement (A8470), (“Amendment No. 6”), is made and entered into this 1st day of April, 2025, by and between the City of Palm Springs, a California charter city and municipal corporation, hereinafter designated as the City, and ENGIE Services U.S. Inc., a Delaware corporation, hereinafter designated as the Contractor. City and Contractor are individually referred to as “Party” and are collectively referred to as the “Parties”. RECITALS A. City owns and operates certain Facilities, including a Municipal Plant consisting of a co-generation engine and chiller system providing power and heating/cooling to various municipal buildings including the Airport, City Hall, County Building (CVEP), Corp orate Yard, Fire Station No. 2, and the Police Department and Training Center, (the “Municipal Plant”). B. On January 30, 2020, the City Council approved A8470, to operate as a Post- Construction Monitoring, Operation and Maintenance Agreement for the Municipal Plant , for a Maximum Contract Amount not to exceed $2,748,861.94 for an initial term commencing on April 1, 2020, continuing through March 31, 2025. C. On June 24, 2021, City Council approved Amendment No. 1 to amend A8470 to add $209,045 to provide maintenance and operation supervision, and monitoring services for the Building Automated System controls related to the City’s Municipal Plant and Sunrise Central Chiller, for a maximum contract amount not to exceed $2,957,906.94. D. On December 14, 2023, City Council approved Amendment No. 2 to amend A8470 to add $287,345 for building automation control services to retrofit the existing Honeywell Spyder Control System with the Schneider Electric EcoStruxture Direct Digital Control System at the Palm Springs Animal Shelter, and to replace and upgrade the legacy Honeywell Carbon Monoxide monitoring and control system at the downtown parking garage, for a revised Maximum Contract Amount not to exceed $3,245,251.94. E. On April 25, 2024, Parties entered into Amendment No. 3 to add $61,895 for modifications necessary to complete the retrofit at the Palm Springs Animal Shelter such as replacement of defective devises, and for air balancing including 50 VAV boxes, 7 AC units, all supply and exhaust diffusers, and generation of NEBB Certified air balance report, for a Maximum Contract Amount not to exceed $3,307,146.94. F. On July 22, 2024, Parties entered into Amendment No. 4 to add $13,059 to deploy the Coppertree Subscription at our facility, to assist technicians track and understand the Docusign Envelope ID: 85E942A6-74CE-4F7E-9D9D-0A752C8849F4Docusign Envelope ID: 7A2AB3FC-DAD1-43F8-B978-341102EE0BF0 operations and performance of the mechanical systems, for a revised Maximum Contract Amount not to exceed $3,320,205.94. G. On November 21, 2024, Parties entered into Amendment No. 5 to add $39,206 to perform a de-coke of the engine located at the Municipal Plant. The decoking will clean the engine internal components due to the low natural gas quality. This process will help prepare the engine for the annual RATA testing for a revised Maximum Contract Amount not to exceed $3,359,411.94 during the initial term commencing on April 1, 2020, continuing through March 31, 2025. H. The City desires to amend A8470 to remove Chiller Maintenance Services as added by Amendment No. 1 and decrease compensation to exclude those services, and to exercise the first five-year optional renewal term, for an additional annual up to $1,325,000, or $6,625,000 with a 5% annual escalation, for a revised contract amount not to exceed $9,984,411.94 commencing on April 1, 2025, and continuing through March 31, 2030. I. Contractor desires to perform said services on the terms and conditions set forth in this Amendment. In consideration of these promises and mutual obligations, covenants, and conditions, the Parties agree as follows: AGREEMENT SECTION 1. The true and correct recitals above are incorporated by this reference herein as the basis for this Amendment No. 6. SECTION 2. 2.01 Maximum Contract Amount. Is hereby replaced in its entirety as follows, with the base annual amount detailed in Attachment A. “2.01 Maximum Contract Amount. For the Services rendered under this Agreement, Contractor shall be compensated by City in accordance with Section 2.02, 2.10, and 2.11. Compensation for required services (inclusive of any optional services pursuant to Section 2.04 shall not exceed the maximum contract amount of $9,984,411.94. The Maximum contract amount shall include the base annual amount of $1,075,000, with an annual escalation of 5%, plus optional additional services, as authorized by Section 2.04 for an annual amount of $250,000. The Maximum Contract Amount shall include the attendance of Contractor at all Project meetings reasonably deemed necessary by the City. Contractor shall not be entitled to any increase in the Maximum Contract Amount for attending these meetings. Contracto r accepts the risk that the scope of services identified in ARTICLE 3 may be more costly and/or time-consuming than Contractor anticipates, and the Contractor shall not be entitled to additional compensation for required (and not optional) services set forth in ARTICLE 3. The Docusign Envelope ID: 85E942A6-74CE-4F7E-9D9D-0A752C8849F4Docusign Envelope ID: 7A2AB3FC-DAD1-43F8-B978-341102EE0BF0 maximum amount of the City’s payment obligation under this Section 2.01 is the amount specified in this Agreement. If the City’s maximum payment obligation is reached before the Contractor’s services under this Agreement are completed, Contractor shall complete the Work and City shall not be liable for payment beyond the Maxi mum Contract Amount, in addition to compensation for any optional services pursuant to Section 2.04.” SECTION 3 2.07 Term. is hereby replaced in its entirety as follows: “2.07 Term. Unless earlier terminated under this Agreement, this Agreement shall continue in full force and effect for a period of ten (10) year commencing on April 1, 2020, and continuing through March 31, 2030 (“Term”). At the sole discretion of the City, the Term may be extended for a period of five (5) years, by City providing written notice of its intention to exercise.” SECTION 4. 2.11 Chiller Maintenance Services Compensation is hereby deleted in its entirety. SECTION 5 3.04 Chiller Maintenance Services is hereby deleted in its entirety. SECTION 6. Full forces and Effect. All terms, conditions, and provisions of the Contract Services Agreement A8470, unless specifically modified herein, shall continue in full force and effect. In the event of any conflict or inconsistency between the provisions of this Amendment No. 6 and any provision of the Contract Services Agreement A8470, the provisions of this Amendment No. 6 shall in all respects govern and control. SECTION 7. The persons executing this Amendment No. 6 on behalf of the Parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Amendment No. 6 on behalf of said party, (iii) by so executing this Amendment No. 6, such party is formally bound to the provisions of this Amendment No. 6, and (iv) the entering into this Amendment No. 6 does not violate any provision of any other agreement to which said Party is bound. Except as specifically amended by this Amendment No. 6, all terms and provisions of Agreement No. A8470 remain in full force and effect. [SIGNATURES ON FOLLOWING PAGE] Docusign Envelope ID: 85E942A6-74CE-4F7E-9D9D-0A752C8849F4Docusign Envelope ID: 7A2AB3FC-DAD1-43F8-B978-341102EE0BF0 SIGNATURE PAGE TO AMENDMENT NO. 6 (A8470) BY AND BETWEEN THE CITY OF PALM SPRINGS AND ENGIE SERVICES U.S. INC. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated below. CONTRACTOR: By:___________________________ By:____________________________________ Signature Signature (2nd signature required for Corporations) Date: Date: CITY OF PALM SPRINGS: APPROVED BY CITY COUNCIL: Date: _N/A ______ Item No. N/A APPROVED AS TO FORM: ATTEST: By: ___________________________ By: ___________________________ City Attorney City Clerk APPROVED: By: _______________________________ Date: Department Director By: _______________________________ Date: City Manager – over $50,000 Deputy/Assistant City Manager – up to $50,000 Director – up to $25,000 Manager – up to $5,000 Docusign Envelope ID: 85E942A6-74CE-4F7E-9D9D-0A752C8849F4 3/25/2025 Senior Counsel Christina McCormick 3/26/2025 Courtney Jenkins President CFO, Treasurer and Secretary 3/31/2025 Sarah Pearce Docusign Envelope ID: 7A2AB3FC-DAD1-43F8-B978-341102EE0BF0 4/2/2025 4/2/2025 ATTACHMENT A Docusign Envelope ID: 85E942A6-74CE-4F7E-9D9D-0A752C8849F4Docusign Envelope ID: 7A2AB3FC-DAD1-43F8-B978-341102EE0BF0 Docusign Envelope ID: 85E942A6-74CE-4F7E-9D9D-0A752C8849F4Docusign Envelope ID: 7A2AB3FC-DAD1-43F8-B978-341102EE0BF0 CONTRACT ABSTRACT Contract/Amendment Name of Contract: Company Name: Company Contact: Email: Summary of Services: Contract Price: Contract Term: Public Integrity/ Business Disclosure Forms: Contract Administration Lead Department: Contract Administrator/ Ext: Contract Approvals Council/City Manager Approval Date: Agreement Number: Amendment Number: Contract Compliance Exhibits: Insurance: Routed By: Bonds: Business License: Sole Source Co-Op CoOp Agmt #: Sole Source Documents: CoOp Name: CoOp Pricing: By: Submitted on: Contract Abstract Form Rev 8.16.23 Authorized Signers: Name, Email (Corporations require 2 signatures) Post Construction Services Agreement ENGIE U.S., Inc. Conrad Newberry/Edward Jakimzak Edward.Jakimzak@engie.com Energy management services relating to the operation of the City's cogeneration plant and chiller system providing power and heating/cooling to various municipal buildings.$3,359,411.94 (including this A#5 for $39,206) 5-year with two optional 5-year options On File Sarah Pierce Edward Jakimzak Public Works David McAbee/Daniel Martinez 01/30/2020; 06/24/21; 12/14/23; 11/21/24 A8470 5 Yes Yes Yes Procurement N/A No 01/21/2025 Tabitha Richards Docusign Envelope ID: 7E861263-0CBD-40DF-A136-5D0625E66319 AMENDMENT NO. 5 TO POST-CONTRACT SERVICES AGREEMENT NO. A8470 BETWEEN THE CITY OF PALM SPRINGS AND ENGIE U.S. SERVICES, INC. This Amendment No. 5 to the Contract Services Agreement (A8470), (“Amendment No. 5”), is made and entered into this 21st day of November 2024, by and between the City of Palm Springs, a California charter city and municipal corporation, hereinafter designated as the City, and ENGIE Services U.S. Inc., a Delaware corporation, hereinafter designated as the Contractor. City and Contractor are individually referred to as “Party” and are collectively referred to as the “Parties”. RECITALS A. City owns and operates certain Facilities, including a Municipal Plant consisting of a co-generation engine and chiller system providing power and heating/cooling to various municipal buildings including the Airport, City Hall, County Building (CVEP), Corporate Yard, Fire Station No. 2, and the Police Department and Training Center, (the “Municipal Plant”). B. On January 30, 2020, the City Council approved A8470, to operate as a Post- Construction Monitoring, Operation and Maintenance Agreement for the Municipal Plant, for a Maximum Contract Amount not to exceed $2,748,861.94 for an initial term commencing on April 1, 2020, continuing through March 31, 2025. C. On June 24, 2021, City Council approved Amendment No. 1 to amend A8470 to add $209,045 to provide maintenance and operation supervision, and monitoring services for the Building Automated System controls related to the City’s Municipal Plant and Sunrise Central Chiller, for a maximum contract amount not to exceed $2,957,906.94. D. On December 14, 2023, City Council approved Amendment No. 2 to amend A8470 to add $287,345 for building automation control services to retrofit the existing Honeywell Spyder Control System with the Schneider Electric EcoStruxture Direct Digital Control System at the Palm Springs Animal Shelter, and to replace and upgrade the legacy Honeywell Carbon Monoxide monitoring and control system at the downtown parking garage, for a revised Maximum Contract Amount not to exceed $3,245,251.94. E. On April 25, 2024, Parties entered into Amendment No. 3 to add $61,895 for modifications necessary to complete the retrofit at the Palm Springs Animal Shelter such as replacement of defective devises, and for air balancing including 50 VAV boxes, 7 AC units, all supply and exhaust diffusers, and generation of NEBB Certified air balance report, for a Maximum Contract Amount not to exceed $3,307,146.94. Docusign Envelope ID: BE44A1D5-1958-415A-A2B8-FDAA561B5A6CDocusign Envelope ID: 7E861263-0CBD-40DF-A136-5D0625E66319 F. On July 22, 2024, Parties entered into Amendment No. 4 to add $13,059 to deploy the Coppertree Subscription at our facility, to assist technicians track and understand the operations and performance of the mechanical systems, for a revised Maximum Contract Amount not to exceed $3,320,205.94. G. City desires to amend A8470 to add $39,206 to perform a de-coke of the engine located at the Municipal Plant. The decoking will clean the engine internal components due to the low natural gas quality. This process will help prepare the engine for the annual RATA testing for a revised Maximum Contract Amount not to exceed $3,359,411.94 during the initial term commencing on April 1, 2020, continuing through March 31, 2025. H. Contractor desires to perform said services on the terms and conditions set forth in this Amendment. In consideration of these promises and mutual obligations, covenants, and conditions, the Parties agree as follows: AGREEMENT SECTION 1. The true and correct recitals above are incorporated by this reference herein as the basis for this Amendment No. 5. SECTION 2. 2.01 Maximum Contract Amount. Is hereby replaced in its entirety as follows: “2.01 Maximum Contract Amount. For the Services rendered under this Agreement, Contractor shall be compensated by City in accordance with Section 2.02, 2.10, and 2.11. Compensation for required services (inclusive of any optional services pursuant to Section 2.04 shall not exceed the maximum contract amount of $3,359,411.94 (the “Maximum Contract Amount”). The Maximum Contract Amount shall include the attendance of Contractor at all Project meetings reasonably deemed necessary by the City. Contractor shall not be entitled to any increase in the Maximum Contract Amount for attending these meetings. Contractor accepts the risk that the scope of services identified in ARTICLE 3 may be more costly and/or time-consuming than Contractor anticipates, and the Contractor shall not be entitled to additional compensation for required (and not optional) services set forth in ARTICLE 3. The maximum amount of the City’s payment obligation under this Section 2.01 is the amount specified in this Agreement. If the City’s maximum payment obligation is reached before the Contractor’s services under this Agreement are completed, Contractor shall complete the Work and City shall not be liable for payment beyond the Maximum Contract Amount, in addition to compensation for any optional services pursuant to Section 2.04.” Docusign Envelope ID: BE44A1D5-1958-415A-A2B8-FDAA561B5A6CDocusign Envelope ID: 7E861263-0CBD-40DF-A136-5D0625E66319 SECTION 3. 3.02 (c) Cogeneration Engine Operation & Maintenance Is hereby amended to include performing an annual de-coke of the engine located at the Municipal Plant. The decoking will clean the engine internal components due to the low natural gas quality. This process will help prepare the engine for the annual RATA testing, as outlined in Contractors proposal included as Attachment A. SECTION 4. Full forces and Effect. All terms, conditions, and provisions of the Contract Services Agreement A8470, unless specifically modified herein, shall continue in full force and effect. In the event of any conflict or inconsistency between the provisions of this Amendment No. 5 and any provision of the Contract Services Agreement A8470, the provisions of this Amendment No. 5 shall in all respects govern and control. SECTION 5. The persons executing this Amendment No. 5 on behalf of the Parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Amendment No. 5 on behalf of said party, (iii) by so executing this Amendment No. 5, such party is formally bound to the provisions of this Amendment No. 5, and (iv) the entering into this Amendment No. 5 does not violate any provision of any other agreement to which said Party is bound. Except as specifically amended by this Amendment No. 5, all terms and provisions of Agreement No. A8470 remain in full force and effect. [SIGNATURES ON FOLLOWING PAGE] Docusign Envelope ID: BE44A1D5-1958-415A-A2B8-FDAA561B5A6CDocusign Envelope ID: 7E861263-0CBD-40DF-A136-5D0625E66319 SIGNATURE PAGE TO AMENDMENT NO. 5 (A8470) BY AND BETWEEN THE CITY OF PALM SPRINGS AND ENGIE SERVICES U.S. INC. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated below. CONTRACTOR: By:___________________________ By:____________________________________ Signature Signature (2nd signature required for Corporations) Date: Date: CITY OF PALM SPRINGS: APPROVED BY CITY COUNCIL: Date: _11/21/24______ Item No. APPROVED AS TO FORM: ATTEST: By: ___________________________ By: City Attorney City Clerk APPROVED: By: _______________________________ Date: Department Director By: _______________________________ Date: City Manager – over $50,000 Deputy/Assistant City Manager – up to $50,000 Director – up to $25,000 Manager – up to $5,000 Docusign Envelope ID: BE44A1D5-1958-415A-A2B8-FDAA561B5A6C 11/22/2024 Christina McCormick Senior Counsel President 12/4/2024 CFO, Treasurer and Secretary 12/4/2024 Docusign Envelope ID: 7E861263-0CBD-40DF-A136-5D0625E66319 1.L. 1/21/2025 1/22/2025 ATTACHMENT A Docusign Envelope ID: BE44A1D5-1958-415A-A2B8-FDAA561B5A6CDocusign Envelope ID: 7E861263-0CBD-40DF-A136-5D0625E66319 Docusign Envelope ID: BE44A1D5-1958-415A-A2B8-FDAA561B5A6CDocusign Envelope ID: 7E861263-0CBD-40DF-A136-5D0625E66319 Docusign Envelope ID: BE44A1D5-1958-415A-A2B8-FDAA561B5A6CDocusign Envelope ID: 7E861263-0CBD-40DF-A136-5D0625E66319 Docusign Envelope ID: BE44A1D5-1958-415A-A2B8-FDAA561B5A6CDocusign Envelope ID: 7E861263-0CBD-40DF-A136-5D0625E66319 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. INSURER(S) AFFORDING COVERAGE INSURER F : INSURER E : INSURER D : INSURER C : INSURER B : INSURER A : NAIC # NAME:CONTACT (A/C, No):FAX E-MAILADDRESS: PRODUCER (A/C, No, Ext):PHONE INSURED REVISION NUMBER:CERTIFICATE NUMBER:COVERAGES IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. OTHER: (Per accident) (Ea accident) $ $ N / A SUBR WVD ADDL INSD THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. $ $ $ $PROPERTY DAMAGE BODILY INJURY (Per accident) BODILY INJURY (Per person) COMBINED SINGLE LIMIT AUTOS ONLY AUTOSAUTOS ONLY NON-OWNED SCHEDULEDOWNED ANY AUTO AUTOMOBILE LIABILITY Y / N WORKERS COMPENSATION AND EMPLOYERS' LIABILITY OFFICER/MEMBER EXCLUDED? (Mandatory in NH) DESCRIPTION OF OPERATIONS below If yes, describe under ANY PROPRIETOR/PARTNER/EXECUTIVE $ $ $ E.L. DISEASE - POLICY LIMIT E.L. DISEASE - EA EMPLOYEE E.L. EACH ACCIDENT EROTH-STATUTEPER LIMITS(MM/DD/YYYY)POLICY EXP(MM/DD/YYYY)POLICY EFFPOLICY NUMBERTYPE OF INSURANCELTRINSR DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) EXCESS LIAB UMBRELLA LIAB $EACH OCCURRENCE $AGGREGATE $ OCCUR CLAIMS-MADE DED RETENTION $ $PRODUCTS - COMP/OP AGG $GENERAL AGGREGATE $PERSONAL & ADV INJURY $MED EXP (Any one person) $EACH OCCURRENCE DAMAGE TO RENTED $PREMISES (Ea occurrence) COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO-JECT LOC CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) CANCELLATION AUTHORIZED REPRESENTATIVE ACORD 25 (2016/03) © 1988-2016 ACORD CORPORATION. All rights reserved. CERTIFICATE HOLDER The ACORD name and logo are registered marks of ACORD HIRED AUTOS ONLY 2,000,000 GLO 4438954-02 X HOU-003591769-16 1,000,000 X N/A N X07/01/2024 10 07/01/2025BAP-4439031-02 A 4,000,000 2,000,000 X N/A N/A 1,000,000 X subject to policy terms and conditions. 06/26/2024 07/01/2024 Re: ENGIE Services Contract # R3464 The City of Palm Springs, its officials, employees, and agents are included as additional insured (except workers’ compensation) where required by written contract. This insurance is primary and non-contributory X 3200 E Tahquitz Canyon Way Palm Springs, CA 92262 City of Palm Springs over any existing insurance and limited to liability arising out of the operations of the named insured and where required by written contract. Waiver of subrogation is applicable where required by written contract and A N/A CN115354100-OpTer--24-25 10,000 07/01/2025 2,000,000 4,000,000 16535 1,000,000 1,000,000 WC-4438955-02 500 Dallas St., Suite 1500 MARSH USA LLC. Houston, TX 77002 X ENGIE Services U.S. Inc. ENGIE Holdings Inc. Houston, TX 77056 1360 Post Oak Blvd, Ste 400 07/01/2024 Attn: Marcus Fuller X X X A _ 07/01/2025 Zurich American Insurance Company X Docusign Envelope ID: C187C451-73D6-403E-B675-0CE1581E58F7Docusign Envelope ID: 7E861263-0CBD-40DF-A136-5D0625E66319 AMENDMENT NO. 4 TO POST-CONTRACT SERVICES AGREEMENT NO. A8470 BETWEEN THE CITY OF PALM SPRINGS AND ENGIE U.S. SERVICES, INC. This Amendment No. 4 to the Contract Services Agreement (A8470), (“Amendment No. 4”), is made and entered into this 22nd day of July 2024, by and between the City of Palm Springs, a California charter city and municipal corporation, hereinafter designated as the City, and ENGIE Services U.S. Inc., a Delaware corporation, hereinafter designated as the Contractor. City and Contractor are individually referred to as “Party” and are collectively referred to as the “Parties”. RECITALS A. City owns and operates certain Facilities, including a Municipal Plant consisting of a co-generation engine and chiller system providing power and heating/cooling to various municipal buildings including the Airport, City Hall, County Building (CVEP), Corporate Yard, Fire Station No. 2, and the Police Department and Training Center, (the “Municipal Plant”). B. On January 30, 2020, the City Council approved A8470, to operate as a Post- Construction Monitoring, Operation and Maintenance Agreement for the Municipal Plant, for a Maximum Contract Amount not to exceed $2,748,861.94. C. On June 24, 2021, City Council approved Amendment No. 1 to amend A8470 to add $209,045 to provide maintenance and operation supervision, and monitoring services for the Building Automated System controls related to the City’s Municipal Plant and Sunrise Central Chiller, for a maximum contract amount not to exceed $2,957,906.94. D. On December 14, 2023, City Council approved Amendment No. 2 to amend A8470 to add $287,345 for building automation control services to retrofit the existing Honeywell Spyder Control System with the Schneider Electric EcoStruxture Direct Digital Control System at the Palm Springs Animal Shelter, and to replace and upgrade the legacy Honeywell Carbon Monoxide monitoring and control system at the downtown parking garage, for a revised Maximum Contract Amount not to exceed $3,245,251.94. E. On April 25, 2024, Parties entered into Amendment No. 3 to add $61,895 for modifications necessary to complete the retrofit at the Palm Springs Animal Shelter such as replacement of defective devises, and for air balancing including 50 VAV boxes, 7 AC units, all supply and exhaust diffusers, and generation of NEBB Certified air balance report, for a Maximum Contract Amount not to exceed $3,307,146.94. F. City desires to amend A8470 to add $13,059 to deploy the Coppertree Subscription at our facility, to assist technicians track and understand the operations and Docusign Envelope ID: 73B9A696-1296-4C22-A40A-F844B75838ACDocusign Envelope ID: C187C451-73D6-403E-B675-0CE1581E58F7Docusign Envelope ID: 7E861263-0CBD-40DF-A136-5D0625E66319 performance of the mechanical systems, for a revised Maximum Contract Amount not to exceed $3,320,205.94. G. Contractor desires to perform said services on the terms and conditions set forth in this Amendment. In consideration of these promises and mutual obligations, covenants, and conditions, the Parties agree as follows: AGREEMENT SECTION 1. The true and correct recitals above are incorporated by this reference herein as the basis for this Amendment No. 4. SECTION 2. 2.01 Maximum Contract Amount. Is hereby replaced in its entirety as follows: “2.01 Maximum Contract Amount. For the Services rendered under this Agreement, Contractor shall be compensated by City in accordance with Section 2.02, 2.10, and 2.11. Compensation for required services (inclusive of any optional services pursuant to Section 2.04 shall not exceed the maximum contract amount of $3,320,205.94 (the “Maximum Contract Amount”). The Maximum Contract Amount shall include the attendance of Contractor at all Project meetings reasonably deemed necessary by the City. Contractor shall not be entitled to any increase in the Maximum Contract Amount for attending these meetings. Contractor accepts the risk that the scope of services identified in ARTICLE 3 may be more costly and/or time-consuming than Contractor anticipates, and the Contractor shall not be entitled to additional compensation for required (and not optional) services set forth in ARTICLE 3. The maximum amount of the City’s payment obligation under this Section 2.01 is the amount specified in this Agreement. If the City’s maximum payment obligation is reached before the Contractor’s services under this Agreement are completed, Contractor shall complete the Work and City shall not be liable for payment beyond the Maximum Contract Amount, in addition to compensation for any optional services pursuant to Section 2.04.” SECTION 3. 3.02 (d) Engine Control System Operation and Maintenance (PLC) Is hereby amended to include deployment and use to the Coppertree Subscription, as outline in Contractors proposal included as Attachment A. SECTION 4. Full forces and Effect. All terms, conditions, and provisions of the Contract Services Agreement A8470, unless specifically modified herein, shall continue in full force and effect. In the event of any conflict or inconsistency between the provisions of this Amendment No. 4 and any provision of the Contract Services Agreement A8470, the provisions of this Amendment No. 4 shall in all respects govern and control. Docusign Envelope ID: 73B9A696-1296-4C22-A40A-F844B75838ACDocusign Envelope ID: C187C451-73D6-403E-B675-0CE1581E58F7Docusign Envelope ID: 7E861263-0CBD-40DF-A136-5D0625E66319 SECTION 5. The persons executing this Amendment No. 4 on behalf of the Parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Amendment No. 4 on behalf of said party, (iii) by so executing this Amendment No. 4, such party is formally bound to the provisions of this Amendment No. 4, and (iv) the entering into this Amendment No. 4 does not violate any provision of any other agreement to which said Party is bound. Except as specifically amended by this Amendment No. 4, all terms and provisions of Agreement No. A8470 remain in full force and effect. [SIGNATURES ON FOLLOWING PAGE] Docusign Envelope ID: 73B9A696-1296-4C22-A40A-F844B75838ACDocusign Envelope ID: C187C451-73D6-403E-B675-0CE1581E58F7Docusign Envelope ID: 7E861263-0CBD-40DF-A136-5D0625E66319 SIGNATURE PAGE TO AMENDMENT NO. 4 (A8470) BY AND BETWEEN THE CITY OF PALM SPRINGS AND ENGIE SERVICES U.S. INC. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated below. CONTRACTOR: By:___________________________ By:____________________________________ Signature Signature (2nd signature required for Corporations) Date: Date: 8/7/2024 CITY OF PALM SPRINGS: APPROVED BY CITY COUNCIL: Date: _N/A______ Item No. N/A APPROVED AS TO FORM: ATTEST: By: ___________________________ By: City Attorney City Clerk APPROVED: By: _______________________________ Date: City Manager – over $50,000 Deputy/Assistant City Manager – up to $50,000 Director – up to $25,000 Manager – up to $5,000 Docusign Envelope ID: 73B9A696-1296-4C22-A40A-F844B75838AC Christina McCormick Senior Counsel 8/12/2024 President 8/13/2024 Docusign Envelope ID: C187C451-73D6-403E-B675-0CE1581E58F7 8/15/2024 Docusign Envelope ID: 7E861263-0CBD-40DF-A136-5D0625E66319 ATTACHMENT A Docusign Envelope ID: 73B9A696-1296-4C22-A40A-F844B75838ACDocusign Envelope ID: C187C451-73D6-403E-B675-0CE1581E58F7Docusign Envelope ID: 7E861263-0CBD-40DF-A136-5D0625E66319 Docusign Envelope ID: 73B9A696-1296-4C22-A40A-F844B75838ACDocusign Envelope ID: C187C451-73D6-403E-B675-0CE1581E58F7Docusign Envelope ID: 7E861263-0CBD-40DF-A136-5D0625E66319 Docusign Envelope ID: 73B9A696-1296-4C22-A40A-F844B75838ACDocusign Envelope ID: C187C451-73D6-403E-B675-0CE1581E58F7Docusign Envelope ID: 7E861263-0CBD-40DF-A136-5D0625E66319 AMENDMENT NO. 3 TO POST-CONTRACT SERVICES AGREEMENT NO. A8470 BETWEEN THE CITY OF PALM SPRINGS AND ENGIE U.S. SERVICES, INC. This Amendment No. 3 to the Contract Services Agreement (A8470), (“Amendment No. 3”), is made and entered into this day of , 2024, by and between the City of Palm Springs, a California charter city and municipal corporation, hereinafter designated as the City, and ENGIE Services U.S. Inc., a Delaware corporation, hereinafter designated as the Contractor. City and Contractor are individually referred to as “Party” and are collectively referred to as the “Parties”. RECITALS A. City owns and operates certain Facilities, including a Municipal Plant consisting of a co-generation engine and chiller system providing power and heating/cooling to various municipal buildings including the Airport, City Hall, County Building (CVEP), Corporate Yard, Fire Station No. 2, and the Police Department and Training Center, (the “Municipal Plant”). B. On January 30, 2020, the City Council approved A8470, to operate as a Post- Construction Monitoring, Operation and Maintenance Agreement for the Municipal Plant, for a Maximum Contract Amount not to exceed $2,748,861.94. C. On June 24, 2021, City Council approved Amendment No. 1 to amend A8470 to add $209,045 to provide maintenance and operation supervision, and monitoring services for the Building Automated System controls related to the City’s Municipal Plant and Sunrise Central Chiller, for a maximum contract amount not to exceed $2,957,906.94. D. On December 14, 2023, City Council approved Amendment No. 2 to amend A8470 to add $287,345 for building automation control services to retrofit the existing Honeywell Spyder Control System with the Schneider Electric EcoStruxture Direct Digital Control System at the Palm Springs Animal Shelter, and to replace and upgrade the legacy Honeywell Carbon Monoxide monitoring and control system at the downtown parking garage, for a revised Maximum Contract Amount not to exceed $3,245,251.94. E. Cities desires to amend A8470 to add $61,895 for modifications necessary to complete the retrofit at the Palm Springs Animal Shelter such as replacement of defective devises, and for air balancing including 50 VAV boxes, 7 AC units, all supply and exhaust diffusers, and generation of NEBB Certified air balance report, for a Maximum Contract Amount not to exceed $3,307,146.94. F. Contractor desires to perform said services on the terms and conditions set forth in this Amendment. DocuSign Envelope ID: 575D2357-9DEF-457E-B4C5-0431CAAF99BBDocuSign Envelope ID: 700A8BA1-08B1-43BA-A3CA-607F51DCDC7B April25th Docusign Envelope ID: C187C451-73D6-403E-B675-0CE1581E58F7Docusign Envelope ID: 7E861263-0CBD-40DF-A136-5D0625E66319 In consideration of these promises and mutual obligations, covenants, and conditions, the Parties agree as follows: AGREEMENT SECTION 1. The true and correct recitals above are incorporated by this reference herein as the basis for this Amendment No. 3. SECTION 2. 2.01 Maximum Contract Amount. Is hereby replaced in its entirety as follows: “2.01 Maximum Contract Amount. For the Services rendered under this Agreement, Contractor shall be compensated by City in accordance with Section 2.02, 2.10, and 2.11. Compensation for required services (inclusive of any optional services pursuant to Section 2.04 shall not exceed the maximum contract amount of $3,307,146.94 (the “Maximum Contract Amount”). The Maximum Contract Amount shall include the attendance of Contractor at all Project meetings reasonably deemed necessary by the City. Contractor shall not be entitled to any increase in the Maximum Contract Amount for attending these meetings. Contractor accepts the risk that the scope of services identified in ARTICLE 3 may be more costly and/or time-consuming than Contractor anticipates, and the Contractor shall not be entitled to additional compensation for required (and not optional) services set forth in ARTICLE 3. The maximum amount of the City’s payment obligation under this Section 2.01 is the amount specified in this Agreement. If the City’s maximum payment obligation is reached before the Contractor’s services under this Agreement are completed, Contractor shall complete the Work and City shall not be liable for payment beyond the Maximum Contract Amount, in addition to compensation for any optional services pursuant to Section 2.04.” SECTION 3. 3.03 Palm Springs Animal Shelter Building Automation Retrofit. Is hereby amended to incorporate Contractor’s proposals dated March 29, 2024, Attachment “A”. SECTION 4. Full forces and Effect. All terms, conditions, and provisions of the Contract Services Agreement A8470, unless specifically modified herein, shall continue in full force and effect. In the event of any conflict or inconsistency between the provisions of this Amendment No. 3 and any provision of the Contract Services Agreement A8470, the provisions of this Amendment No. 3 shall in all respects govern and control. SECTION 5. The persons executing this Amendment No. 3 on behalf of the Parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Amendment No. 3 on behalf of said party, (iii) by so executing this Amendment No. 3, such party is formally bound to the provisions of this DocuSign Envelope ID: 575D2357-9DEF-457E-B4C5-0431CAAF99BBDocuSign Envelope ID: 700A8BA1-08B1-43BA-A3CA-607F51DCDC7BDocusign Envelope ID: C187C451-73D6-403E-B675-0CE1581E58F7Docusign Envelope ID: 7E861263-0CBD-40DF-A136-5D0625E66319 Amendment No. 3, and (iv) the entering into this Amendment No. 3 does not violate any provision of any other agreement to which said Party is bound. Except as specifically amended by this Amendment No. 3, all terms and provisions of Agreement No. A8470 remain in full force and effect. [SIGNATURES ON FOLLOWING PAGE] DocuSign Envelope ID: 575D2357-9DEF-457E-B4C5-0431CAAF99BBDocuSign Envelope ID: 700A8BA1-08B1-43BA-A3CA-607F51DCDC7BDocusign Envelope ID: C187C451-73D6-403E-B675-0CE1581E58F7Docusign Envelope ID: 7E861263-0CBD-40DF-A136-5D0625E66319 SIGNATURE PAGE TO AMENDMENT NO. 3 (A8470) BY AND BETWEEN THE CITY OF PALM SPRINGS AND ENGIE SERVICES U.S. INC. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated below. CONTRACTOR: By:___________________________ By:____________________________________ Signature Signature (2nd signature required for Corporations) Date: Date: CITY OF PALM SPRINGS: APPROVED BY CITY COUNCIL: Date: _N/A______ Item No. N/A APPROVED AS TO FORM: ATTEST: By: ___________________________ By: City Attorney City Clerk APPROVED: By: _______________________________ Date: City Manager – over $50,000 Deputy/Assistant City Manager – up to $50,000 Director – up to $25,000 Manager – up to $5,000 DocuSign Envelope ID: 575D2357-9DEF-457E-B4C5-0431CAAF99BB Christina McCormick 4/15/2024 Senior Counsel 4/23/2024 CFO, Treasurer and Secretary 4/18/2024 Vice President and General Manager DocuSign Envelope ID: 700A8BA1-08B1-43BA-A3CA-607F51DCDC7B 4/25/2024 Docusign Envelope ID: C187C451-73D6-403E-B675-0CE1581E58F7Docusign Envelope ID: 7E861263-0CBD-40DF-A136-5D0625E66319 ATTACHMENT A DocuSign Envelope ID: 575D2357-9DEF-457E-B4C5-0431CAAF99BBDocuSign Envelope ID: 700A8BA1-08B1-43BA-A3CA-607F51DCDC7BDocusign Envelope ID: C187C451-73D6-403E-B675-0CE1581E58F7Docusign Envelope ID: 7E861263-0CBD-40DF-A136-5D0625E66319 DocuSign Envelope ID: 575D2357-9DEF-457E-B4C5-0431CAAF99BBDocuSign Envelope ID: 700A8BA1-08B1-43BA-A3CA-607F51DCDC7BDocusign Envelope ID: C187C451-73D6-403E-B675-0CE1581E58F7Docusign Envelope ID: 7E861263-0CBD-40DF-A136-5D0625E66319 DocuSign Envelope ID: 575D2357-9DEF-457E-B4C5-0431CAAF99BBDocuSign Envelope ID: 700A8BA1-08B1-43BA-A3CA-607F51DCDC7BDocusign Envelope ID: C187C451-73D6-403E-B675-0CE1581E58F7Docusign Envelope ID: 7E861263-0CBD-40DF-A136-5D0625E66319 DocuSign Envelope ID: 575D2357-9DEF-457E-B4C5-0431CAAF99BBDocuSign Envelope ID: 700A8BA1-08B1-43BA-A3CA-607F51DCDC7BDocusign Envelope ID: C187C451-73D6-403E-B675-0CE1581E58F7Docusign Envelope ID: 7E861263-0CBD-40DF-A136-5D0625E66319 DocuSign Envelope ID: 575D2357-9DEF-457E-B4C5-0431CAAF99BBDocuSign Envelope ID: 700A8BA1-08B1-43BA-A3CA-607F51DCDC7BDocusign Envelope ID: C187C451-73D6-403E-B675-0CE1581E58F7Docusign Envelope ID: 7E861263-0CBD-40DF-A136-5D0625E66319 DocuSign Envelope ID: 575D2357-9DEF-457E-B4C5-0431CAAF99BBDocuSign Envelope ID: 700A8BA1-08B1-43BA-A3CA-607F51DCDC7BDocusign Envelope ID: C187C451-73D6-403E-B675-0CE1581E58F7Docusign Envelope ID: 7E861263-0CBD-40DF-A136-5D0625E66319 DocuSign Envelope ID: 575D2357-9DEF-457E-B4C5-0431CAAF99BBDocuSign Envelope ID: 700A8BA1-08B1-43BA-A3CA-607F51DCDC7BDocusign Envelope ID: C187C451-73D6-403E-B675-0CE1581E58F7Docusign Envelope ID: 7E861263-0CBD-40DF-A136-5D0625E66319 AMENDMENT NO. 2 TO POST-CONTRACT SERVICES AGREEMENT NO. A8470 BETWEEN THE CITY OF PALM SPRINGS AND ENGIE U.S. SERVICES, INC. This Amendment No. 2 to the Contract Services Agreement (A8470), (“Amendment No. 2”), is made and entered into this day of , 2023, by and between the City of Palm Springs, a California charter city and municipal corporation, hereinafter designated as the City, and ENGIE Services U.S. Inc., a Delaware corporation, hereinafter designated as the Contractor. City and Contractor are individually referred to as “Party” and are collectively referred to as the “Parties”. RECITALS A. City owns and operates certain Facilities, including a Municipal Plant consisting of a co-generation engine and chiller system providing power and heating/cooling to various municipal buildings including the Airport, City Hall, County Building (CVEP), Corporate Yard, Fire Station No. 2, and the Police Department and Training Center, (the “Municipal Plant”). B. On January 30, 2020, the City Council approved A8470, to operate as a Post- Construction Monitoring, Operation and Maintenance Agreement for the Municipal Plant, for a Maximum Contract Amount not to exceed $2,748,861.94. C. On June 24, 2021, City Council approved Amendment No. 1 to amend A8470 to add $209,045 to provide maintenance and operation supervision, and monitoring services for the Building Automated System controls related to the City’s Municipal Plant and Sunrise Central Chiller, for a maximum contract amount not to exceed $2,957,906.94. D. Cities desires to amend A8470 to add $287,345 for turnkey building automation control services to retrofit the existing Honeywell Spyder Control System with the Schneider Electric EcoStruxture Direct Digital Control System at the Palm Springs Animal Shelter, and to replace and upgrade the legacy Honeywell Carbon Monoxide monitoring and control system at the downtown parking garage, for a revised Maximum Contract Amount not to exceed $3,245,251.94. E. Contractor desires to perform said services on the terms and conditions set forth in this Amendment. In consideration of these promises and mutual obligations, covenants, and conditions, the Parties agree as follows: DocuSign Envelope ID: 614669B4-26E1-41FD-A72D-77D71623899EDocuSign Envelope ID: 93DE8A82-C958-4859-A6A8-47A48D6F2F54 21st January Docusign Envelope ID: C187C451-73D6-403E-B675-0CE1581E58F7Docusign Envelope ID: 7E861263-0CBD-40DF-A136-5D0625E66319 AGREEMENT SECTION 1. The true and correct recitals above are incorporated by this reference herein as the basis for this Amendment No. 2. SECTION 2. 2.01 Maximum Contract Amount. Is hereby replaced in its entirety as follows: “2.01 Maximum Contract Amount. For the Services rendered under this Agreement, Contractor shall be compensated by City in accordance with Section 2.02, 2.10, and 2.11. Compensation for required services (inclusive of any optional services pursuant to Section 2.04 shall not exceed the maximum contract amount of $3,245,251.94 (the “Maximum Contract Amount”). The Maximum Contract Amount shall include the attendance of Contractor at all Project meetings reasonably deemed necessary by the City. Contractor shall not be entitled to any increase in the Maximum Contract Amount for attending these meetings. Contractor accepts the risk that the scope of services identified in ARTICLE 3 may be more costly and/or time-consuming than Contractor anticipates, and the Contractor shall not be entitled to additional compensation for required (and not optional) services set forth in ARTICLE 3. The maximum amount of the City’s payment obligation under this Section 2.01 is the amount specified in this Agreement. If the City’s maximum payment obligation is reached before the Contractor’s services under this Agreement are completed, Contractor shall complete the Work and City shall not be liable for payment beyond the Maximum Contract Amount, in addition to compensation for any optional services pursuant to Section 2.04.” SECTION 3. ARTICLE 3 Post-Construction Support Services. is hereby amended to incorporate Section 3.03 Palm Springs Animal Shelter Building Automation Retrofit. “Section 3.03 Palm Springs Animal Shelter Building Automation Retrofit. Contractor to provide turnkey building automation control services to retrofit the existing Honeywell Spyder Control System with the Scheider Electric EcoStruxture Direct Digital Control System at the Palm Springs Animal Shelter, in accordance with Contractor’s proposal dated November 15, 2023, Attachment A.” SECTION 4. ARTICLE 3 Post-Construction Support Services. is hereby amended to incorporate Section 3.04 Belardo Parking Garage Upgrade. “Section 3.04 Belardo Parking Garage Upgrade. Contractor to replace and upgrade the legacy Honeywell Carbon Monoxide monitoring and control system at the Belardo Parking Garage, in accordance with Contractor’s proposal date November 15, 2023, Attachment B.” DocuSign Envelope ID: 614669B4-26E1-41FD-A72D-77D71623899EDocuSign Envelope ID: 93DE8A82-C958-4859-A6A8-47A48D6F2F54Docusign Envelope ID: C187C451-73D6-403E-B675-0CE1581E58F7Docusign Envelope ID: 7E861263-0CBD-40DF-A136-5D0625E66319 SECTION 5. Full forces and Effect. All terms, conditions, and provisions of the Contract Services Agreement A8470, unless specifically modified herein, shall continue in full force and effect. In the event of any conflict or inconsistency between the provisions of this Amendment No. 2 and any provision of the Contract Services Agreement A8470, the provisions of this Amendment No. 2 shall in all respects govern and control. SECTION 6. The persons executing this Amendment No. 2 on behalf of the Parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Amendment No. 2 on behalf of said party, (iii) by so executing this Amendment No. 2, such party is formally bound to the provisions of this Amendment No. 2, and (iv) the entering into this Amendment No. 2 does not violate any provision of any other agreement to which said Party is bound. Except as specifically amended by this Amendment No. 2, all terms and provisions of Agreement No. A8470 remain in full force and effect. [SIGNATURES ON FOLLOWING PAGE] DocuSign Envelope ID: 614669B4-26E1-41FD-A72D-77D71623899EDocuSign Envelope ID: 93DE8A82-C958-4859-A6A8-47A48D6F2F54Docusign Envelope ID: C187C451-73D6-403E-B675-0CE1581E58F7Docusign Envelope ID: 7E861263-0CBD-40DF-A136-5D0625E66319 SIGNATURE PAGE TO AMENDMENT NO. 2 (A8470) BY AND BETWEEN THE CITY OF PALM SPRINGS AND ENGIE SERVICES U.S. INC. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated below. CONTRACTOR: By:___________________________ By:____________________________________ Signature Signature (2nd signature required for Corporations) Date: Date: CITY OF PALM SPRINGS: APPROVED BY CITY COUNCIL: Date: _12/14/2023______ Item No. APPROVED AS TO FORM: ATTEST: By: ___________________________ By: City Attorney City Clerk APPROVED: By: _______________________________ Date: City Manager – over $50,000 Deputy/Assistant City Manager – up to $50,000 Director – up to $25,000 Manager – up to $5,000 DocuSign Envelope ID: 614669B4-26E1-41FD-A72D-77D71623899E 1/11/2024 1/17/2024 CFO, Treasurer and SecretaryVice President and General Manager Christina McCormick 12/21/2023 Senior Counsel DocuSign Envelope ID: 93DE8A82-C958-4859-A6A8-47A48D6F2F54 1/21/2024 1.I. Docusign Envelope ID: C187C451-73D6-403E-B675-0CE1581E58F7Docusign Envelope ID: 7E861263-0CBD-40DF-A136-5D0625E66319 ATTACHMENT A DocuSign Envelope ID: 614669B4-26E1-41FD-A72D-77D71623899EDocuSign Envelope ID: 93DE8A82-C958-4859-A6A8-47A48D6F2F54Docusign Envelope ID: C187C451-73D6-403E-B675-0CE1581E58F7Docusign Envelope ID: 7E861263-0CBD-40DF-A136-5D0625E66319 DocuSign Envelope ID: 614669B4-26E1-41FD-A72D-77D71623899EDocuSign Envelope ID: 93DE8A82-C958-4859-A6A8-47A48D6F2F54Docusign Envelope ID: C187C451-73D6-403E-B675-0CE1581E58F7Docusign Envelope ID: 7E861263-0CBD-40DF-A136-5D0625E66319 DocuSign Envelope ID: 614669B4-26E1-41FD-A72D-77D71623899EDocuSign Envelope ID: 93DE8A82-C958-4859-A6A8-47A48D6F2F54Docusign Envelope ID: C187C451-73D6-403E-B675-0CE1581E58F7Docusign Envelope ID: 7E861263-0CBD-40DF-A136-5D0625E66319 DocuSign Envelope ID: 614669B4-26E1-41FD-A72D-77D71623899EDocuSign Envelope ID: 93DE8A82-C958-4859-A6A8-47A48D6F2F54Docusign Envelope ID: C187C451-73D6-403E-B675-0CE1581E58F7Docusign Envelope ID: 7E861263-0CBD-40DF-A136-5D0625E66319 DocuSign Envelope ID: 614669B4-26E1-41FD-A72D-77D71623899EDocuSign Envelope ID: 93DE8A82-C958-4859-A6A8-47A48D6F2F54Docusign Envelope ID: C187C451-73D6-403E-B675-0CE1581E58F7Docusign Envelope ID: 7E861263-0CBD-40DF-A136-5D0625E66319 DocuSign Envelope ID: 614669B4-26E1-41FD-A72D-77D71623899EDocuSign Envelope ID: 93DE8A82-C958-4859-A6A8-47A48D6F2F54Docusign Envelope ID: C187C451-73D6-403E-B675-0CE1581E58F7Docusign Envelope ID: 7E861263-0CBD-40DF-A136-5D0625E66319 DocuSign Envelope ID: 614669B4-26E1-41FD-A72D-77D71623899EDocuSign Envelope ID: 93DE8A82-C958-4859-A6A8-47A48D6F2F54Docusign Envelope ID: C187C451-73D6-403E-B675-0CE1581E58F7Docusign Envelope ID: 7E861263-0CBD-40DF-A136-5D0625E66319 DocuSign Envelope ID: 614669B4-26E1-41FD-A72D-77D71623899EDocuSign Envelope ID: 93DE8A82-C958-4859-A6A8-47A48D6F2F54Docusign Envelope ID: C187C451-73D6-403E-B675-0CE1581E58F7Docusign Envelope ID: 7E861263-0CBD-40DF-A136-5D0625E66319 DocuSign Envelope ID: 614669B4-26E1-41FD-A72D-77D71623899EDocuSign Envelope ID: 93DE8A82-C958-4859-A6A8-47A48D6F2F54Docusign Envelope ID: C187C451-73D6-403E-B675-0CE1581E58F7Docusign Envelope ID: 7E861263-0CBD-40DF-A136-5D0625E66319 ATTACHMENT B DocuSign Envelope ID: 614669B4-26E1-41FD-A72D-77D71623899EDocuSign Envelope ID: 93DE8A82-C958-4859-A6A8-47A48D6F2F54Docusign Envelope ID: C187C451-73D6-403E-B675-0CE1581E58F7Docusign Envelope ID: 7E861263-0CBD-40DF-A136-5D0625E66319 DocuSign Envelope ID: 614669B4-26E1-41FD-A72D-77D71623899EDocuSign Envelope ID: 93DE8A82-C958-4859-A6A8-47A48D6F2F54Docusign Envelope ID: C187C451-73D6-403E-B675-0CE1581E58F7Docusign Envelope ID: 7E861263-0CBD-40DF-A136-5D0625E66319 DocuSign Envelope ID: 614669B4-26E1-41FD-A72D-77D71623899EDocuSign Envelope ID: 93DE8A82-C958-4859-A6A8-47A48D6F2F54Docusign Envelope ID: C187C451-73D6-403E-B675-0CE1581E58F7Docusign Envelope ID: 7E861263-0CBD-40DF-A136-5D0625E66319 DocuSign Envelope ID: 614669B4-26E1-41FD-A72D-77D71623899EDocuSign Envelope ID: 93DE8A82-C958-4859-A6A8-47A48D6F2F54Docusign Envelope ID: C187C451-73D6-403E-B675-0CE1581E58F7Docusign Envelope ID: 7E861263-0CBD-40DF-A136-5D0625E66319 DocuSign Envelope ID: 614669B4-26E1-41FD-A72D-77D71623899EDocuSign Envelope ID: 93DE8A82-C958-4859-A6A8-47A48D6F2F54Docusign Envelope ID: C187C451-73D6-403E-B675-0CE1581E58F7Docusign Envelope ID: 7E861263-0CBD-40DF-A136-5D0625E66319 DocuSign Envelope ID: 614669B4-26E1-41FD-A72D-77D71623899EDocuSign Envelope ID: 93DE8A82-C958-4859-A6A8-47A48D6F2F54Docusign Envelope ID: C187C451-73D6-403E-B675-0CE1581E58F7Docusign Envelope ID: 7E861263-0CBD-40DF-A136-5D0625E66319 AMENDMENT NO. '1 TO THE POST CONSTRUCTION SERVICES AGREEMENT BETWEEN THE CITY PALM SPRINGS AND ENGIE U.S. SERVICES, INC. 1. Parties and Date. This Amendment No. 1 to the Post Construction Services Agreement is made and entered into as of this First day of July 2021, by and between the City of Palm Springs ("City") and ENGIE U.S., Inc., a Delaware corporation with California State Contractor's License Number 995037 with its principal place of business at 12980 Foster Street, Suite 400, Overland Park, KS 66213 ("Contractor"). City and Contractor are sometimes individually referred to as "Party" and collectively as "Parties." 2.1 Agreement. The City and Contractor have entered into an agreement entitled "Post -Construction Services Agreement dated January 30, 2020 ("Agreement" or "Contract") for the purpose of retaining the services of Contractor to provide to provide certain operation and maintenance services related to the City's Municipal Co -Generation Plant located at City Hall. 2.2 Amendment. The City and Contractor desire to amend the Agreement to include additional maintenance and operation supervision, and monitoring services of the Building Automated Systems (BAS) controls related to the City's Municipal Co -generation Plant located at City Hall and the Sunrise Central Chiller located in Sunrise Plaza. 2.3 Amendment Authority. This Amendment No. 1 is authorized pursuant to Section 16.04 of the Agreement. 3. Terms. 3.1 Definitions. Article 1 of the Agreement is hereby amended to include the following: "Controls Support Services" means the Building Automated Systems (BAS) and controls support services to be performed by Contractor in accordance with the terms and subject to the conditions of the Agreement." "Controls Support Services Fee" means an annual fee payable in advance in quarterly installments by City to Contractor. The fee schedule is as follows: LYear Start End Annual Fee Quarterly Installments Page 1 of 21 55575 18155132972087 I 07132021_929AM_tmr Revised: May 2020 1 7/1/2021 3/31/2022 $22,914 $7,638 2 4/1/2022 3/31/2023 $31,467 $7,867 3 4/1/2023 3/31/2024 $32,410 $8,103 4 4/1/2024 3/31/2025 $33,383 $8,346 5 4/1/2025 3/31/2026 Subject to re -price. 6 4/1/2026 3/31/2027 Subject to re -price. 7 4/1/2027 3/31/2028 Subject to re -price. 8 4/1/2028 3/31/2029 Subject to re -price. 9 4/1/2029 1 3/31/2030 Subject to re -price. "Chiller Maintenance Services" means the chiller maintenance services to be performed at the Sunrise and Municipal Plants by Contractor in accordance with the terms and subject to the conditions of this Agreement. "Chiller Maintenance Services Fee" means an annual fee payable in advance in quarterly installments by City to Contractor. The fee schedule is as follows: Year Start End Annual Fee Quarterly Installments 1 7/1/2021 3/31/2022 $16,944 $5,648 2 4/1/2022 3/31/2023 1 $23,271 $5,818 3 1 4/1/2023 3/31/2024 $23,968 1 $5,992 4 4/1/2024 3/31/2025 $24,687 1 $6,172 5 4/1/2025 3/31/2026 Subject to re -price. 6 4/1/2026 3/31/2027 Subject to re -price. 3.2 Section 2.01 Maximum Contract Amount. is hereby amended in its entirety to read as follows: "Section 2.01 Maximum Contract Amount. For the Services rendered under this Agreement, Contractor shall be compensated by City in accordance with Section 2.02. Compensation for required services (excluding any optional services pursuant to Section 2.04) shall not exceed the maximum annual contract amount of Seven Hundred Twenty -Eight Thousand Eight Hundred Forty -Three Dollars, ($728,843) (the "Maximum Contract Amount") with an annual escalation of three percent (3%), except as may be provided under Section 2.04. The Maximum Contract Amount shall include the attendance of Contractor at all Project meetings reasonably deemed necessary by the City. Contractor shall not be entitled to any increase in the Maximum Contract Amount for attending these meetings. Contractor accepts the risk that the scope of services identified in ARTICLE 3 may be more costly and/or time-consuming than Contractor anticipates, and that Page 2 of 21 55575.18165W972097 1 07132021_929AM_tmr Revised: May 2020 Contractor shall not be entitled to additional compensation for required (and not optional) services set forth in ARTICLE 3. The maximum amount of city's payment obligation under this Section 2.01 is the amount specified in this Agreement. If the City's maximum payment obligation is reached before the Contractor's services under this Agreement are completed, Contractor shall complete the Work and City shall not be liable for payment beyond the Maximum Contract Amount, in addition to compensation for any optional services pursuant to Section 2.04." 3.3 This Amendment hereby incorporates Section 2.10 Controls Support Services Compensation. "Section 2.10 Controls Support Services Compensation. The Controls Support Services Fee for the first (1 st) year of Twenty Two Thousand Nine Hundred Fourteen Dollars ($22,914) will be invoiced by Contractor in quarterly installments beginning July 1, 2021. All subsequent quarterly Controls Support Services Fees will be invoiced by Contractor on the first day of each calendar quarter of the corresponding service year per fee schedule above. City shall pay Contractor such quarterly installments of the applicable Controls Support Services Fee, without any retention amount withheld, within forty-five (45) calendar days after its receipt of the corresponding invoice. A failure to timely approve and pay an invoice hereunder shall be a material default by City under this Agreement, unless the City gives Contractor prior written notice of its intent to terminate the Agreement in accordance with the provisions herein." 3.4 This Amendment hereby incorporates Section 2.11 Chiller Maintenance Services Compensation. "Section 2.11 Chiller Maintenance Services Com ensation. The Chiller Maintenance Services Fee for the first (1st) year of Sixteen Thousand Nine Hundred Forty -Four Dollars ($16,944) will be invoiced by Contractor in quarterly installments beginning July 1, 2021. All subsequent quarterly Chiller Maintenance Services Fees will be invoiced by Contractor on the first day of each calendar quarter of the corresponding service year per fee schedule above. City shall pay Contractor such quarterly installments of the applicable Chiller Maintenance Services Fee, without any retention amount withheld, within forty-five (45) calendar days after its receipt of the corresponding invoice. A failure to timely approve and pay an invoice hereunder shall be a material default by City under this Agreement, unless the City gives Contractor prior written notice of its intent to terminate the Agreement in accordance with the provisions herein." Page 3 of 21 55575 18165\32972087 1 07132021 929AM tmr Revised: May 2020 3.5 Section 3.02 Cogeneration Operations Support Services is hereby amended to read as follows: "Section 3.02 Co eperation Operations Support Services. (a) Cogeneration Engine Continuous Monitoring. During the Term of this Agreement, Contractor shall provide continuous refil-time monitoring and management of the cogeneration engine and its associated equipment at the Municipal Plant with a 24/7/365 remote support staff available to provide technical support to the City's on -site cogeneration technicians and other staff during the City's normal business hours, ensuring the reliability and efficiency of the Municipal Plant. Alarming points to be continuously monitored include the following: • Continuous Emissions Control System (CEMS) (NOx and CO, VOC emissions levels, Ammonia (NH3) slip) • Low jacket water pressure • High jacket water pressure • High charge temp (max) • High engine oil temp • Low engine oil pressure • Malfunction of engine cooling water pump • Engine vibration • PHWP1 high temp loop failure • PHWP1 low temp loop failure • PHWP2 high temp loop failure • PHWP2 low temp loop failure Continuous monitoring and management of the cogeneration engine and its associated equipment includes immediate dispatch by Contractor of contractors engaged by Contractor to be available to respond and provide technical support, or perform maintenance or make repairs to the cogeneration engine and its associated equipment at the Municipal Plant as may be required to maintain operation within its optimal parameters and SCAQMD regulations, outside of the City's normal business hours and/or when the City's on -site cogeneration technicians and/or other staff are not otherwise available. (b) SCAQMD Emissions Penalty & Variance Coverage. During the Term of this Agreement, Contractor shall monitor and evaluate emissions levels from the Continuous Emissions Monitoring System (CEMS) for conformance with emissions levels identified in the applicable permits issued by SCAQMD for the cogeneration engine and its associated equipment at the Municipal Plant, (the "SCAQMD Permits"), and provide SCAQMD with all required emissions reports as otherwise required by the SCAQMD Permits. If any emissions Page 4 of 21 55575.18165M972087 1 07132021 929AM tmr Revised: May 2020 exceedance occurs, Contractor will pay in full the penalty amount on behalf of City or reimbursed in full to City. If continued operation or maintenance of the cogeneration engine and its associated equipment at the Municipal Plant has caused or is likely to cause emissions levels to exceed levels authorized by the SCAQMD Permits, Contractor will: (1) furnish technical and legal support as necessary to prepare and file variance applications with SCAQMD; (2) arrange for attendance by its technical and legal support team at any meetings with SCAQMD staff andlor its Hearing Board in its consideration and review of variance applications; and (3) pay all related costs in securing variances for continued operation of the cogeneration engine and its associated equipment at the Municipal Plant in accordance with the SCAQMD Permits. In the event SCAQMD denies approval of a variance, Contractor, at its cost, will design and construct any such modifications to the cogeneration engine and its associated equipment at the Municipal Plant as may be required to obtain compliance with emission levels authorized by the SCAQMD Permits, subject to review, approval by SCAQMD, including approval by SCAQMD of modified permits for the cogeneration engine and its associated equipment at the Municipal Plant. Notwithstanding anything to the contrary in this Section 3.02(b), Contractor shall not be responsible for any emissions exceedances, variances or modifications to the cogeneration engine and associated equipment that result from or are required by a change in the SCAQMD standards that do not allow for grandfathering of such cogeneration engine and its associated equipment. (c) Cogeneration Engine Operation & Maintenance. During the Term of this Agreement, Contractor shall supplement the City's existing on -site cogeneration technicians and other staff; and provide full "tum-key" operation and maintenance services (both routine maintenance and any repairs, whether under warranty or outside of warranty) of the items listed in ATTACHMENT B Covered Equipment A diagram showing the location of Covered Equipment is incorporated herein as ATTACHMENT "131". if the Covered Equipment faults, malfunctions, or experiences operation degradation due to its own causes, failed mechanical equipment will be repaired or replaced, defective parts will be furnished and replaced, required maintenance will be performed, and the Covered Equipment will be restored to its optimal operating parameters by Contractor at no cost to City. If the Covered Equipment experiences a mechanical fault, malfunctions, or experiences performance degradation due to external factors (outside Contractor's direct control, subject to City's agreement as to the existence of such external factor beyond Contractor's direct control, whose approval will not be unreasonably withheld) such as vandalism, Force Majeure event, fuel availability, balance of plant equipment, electric grid events or deficiencies, or thermal load deficiencies, City will be responsible for Page 5 of 21 55575.18165\32972087 1 07132021 929AM_tmr Revised: May 2020 restoring the Covered Equipment to optimal operating parameters with the City's on -site cogeneration technicians or other staff. Alternatively, if the City's on -site cogeneration technicians or other staff are unable to restore the Covered Equipment to optimal operating parameters; or, a mechanical fault, malfunction, or performance degradation occurs outside of the City's normal business hours and cannot be immediately resolved with the City's on -site cogenoration technicians or other staff, the Covered Equipment will be restored to its optimal operating parameters by Contractor at the City's cost, (considered the "Optional Additional Services"). Routine maintenance activities to bip. provided by Contractor will correspond with maintenance of the Covered Equipment in accordance with the manufacturer's specifications and requirements, and includes: • Emissions testing • Vibration analysis • Oil changes • Annual alignment • Coolant changes • Engine lubricating oil and generator grease supply • Engine lubricating oil sample kits & analysis • Coolant & corrosion inhibitor supply, and coolant sample kits & analysis • Urea Procurement & Delivery It is hereby acknowledged and agreed that excluded from the routine maintenance activities of the Covered Equipment to be provided by Contractor is the major overhaul of the cogeneration engine at the Municipal Plant to be scheduled in accordance with the manufacturer's recommendation occurring after 60,000 hours of operation. The City will be responsible for paying costs associated with this major overhaul. Routine inspections and testing to be performed by Contractor on the Covered Equipment at appropriate engine intervals on the following componentstfunctions in accordance with the manufacturer's specifications and requirements, and includes: • Intake air, ignition system • Diane panel • Cylinder heads • Fuel system • Heat exchangers • Thermo reactor • Oxidation catalyst • Lubrication & coolant systems Page 6 of 21 55575,18165\32972087 1 07132021 929AM tmr Revised: May 2020 • Cooling water pump • Electrical generator • Flex coupling • Turbocharger and batteries • Continuous Emission Monitoring System (CEMS) • Quarterly (CGA) CEMS • Annual RATA and VOC tepsting • Annual NH3 slip testing (SCR) • Quarterly cylinder gas audits (CGA) It is hereby acknowledged and agreed that the routine maintenance activities of the Covered Equipment to be provided by Contractor will not invalidate existing warranties. Contractor intends to use City's existing vendors, including Western Energy Systems. In the event Contractor changes vendors, ENGIE Services U.S. will provide City the opportunity to review and reasonably approve the new vendors. However, in no event will Contractor change a vendor that would otherwise invalidate an existing warranty; and will retain such vendors to the extent a warranty remains valid. Enaine Control System Operation and Maintenance (PLC). The controls and automation associated with the successful operation of the cogeneration engine and its associated equipment at the Municipal Plant, specifically the PLC, shall be operated and maintained by Contractor, and includes: • Site survey/field audit • Routine maintenance and software upgrades • Source and change control • Emergency support 24/7/365 • Control system documentation Exclusions. During the Term of this Agreement, unless otherwise included under the scope of services of this Agreement or Amendment No. 1, Section 3.04 , "turn -key" operation and maintenance provided by Contractor will exclude the absorption chiller and related equipment in the balance of the Municipal Plant not otherwise identified as "Covered Equipment" and shown on ATTACHMENT "B", and includes the following excluded equipment (the "Excluded Equipment"): • Cooling towers • Thermal Energy Storage (TES) tanks • Boilers • Valves not listed as Covered Equipment in Attachment B Page 7 of 21 Revised: May 2020 55575 18165\32972087 1 07132021 929AM tmr • Pumps (condenser and chilled water) • Fans (exhaust and makeup air) Electrical panels, breakers and disconnects not listed as Covered Equipment in Attachment B Insofar as Contractor is not responsible for operation and maintenance of any of the above Excluded Equipment, to the extent that failure of any of the Covered Equipment has a direct effect on the City's optimal operation of any of the Excluded Equipment, upon notification by the City that such an effect has occurred, (subject to Contractor's review and approval, whose approval will not be unreasonably withheld), Contractor will provide, technical consultation from the Energy Resource Manager related to the Excluded Equipment as may be required to return the City's operation of the Excluded Equipment into optimal parameters. To the extent a failure of the Covered Equipment directly causes damage to the Excluded Equipment, and vice versa, the Party responsible for the equipment that failed will repair the damaged equipment. If the City's operation of the Excluded Equipment causes damage to the Covered Equipment, the Contractor will perform such repairs to the Covered Equipment as may be required, subject to payment as Optional Additional Services in accordance with Section 2.04. 3.6 This Amendment hereby incorporates Section 3.03 Controls Sueport Services. "Section 3.03 Controls Support Services. (a) General Scope of Work. Inspect and provide reports for covered devices and equipment to maintain the performance of the installed systems to their commissioned levels. The service includes the necessary testing, calibration, early detection, identification of actual or predictable problems, and correcting conditions. a. Frequency. Contractor shall provide a minimum of one (1) Technician one (1) day a month. Mon 1 Technic tau 1 Da L'I I: meat Page 8 of 21 55575 18165\32972087 1 07132021_929AM_tmr Revised: May 2020 (b) List of Covered Equipment (c) Preventive Maintenance Tasks a. General i. Review, Record, and Report network communications functionality and ■ efficiency. ■ TCP/IP ■ BACNet ■ LON ■ Modbus ii. Review, Record, and Report Graphic accuracy and functionality. iii. Review, Record, and Report alarm log data. ■ Recommendation and Action Planning iv. Review. Record, and Report existing System Status. ■ Revision Control Discussion b. System Control i. Verify and report that all field devices sensors are reading within their expected values and tolerance. ii. Verify that all Inputs and Outputs are active and NOT disabled. All disabled points will be recorded, and client notified. iii. Verify that all programs are active and NOT disabled. All disabled programs will be recorded and client notified. iv. Backup controller databases, programs and settings. c. Trend Data/Alarms/System Clean Up. i. Back up trending for mission critical equipment to external hard drive for archiving. Page 9 of 21 55575 18165M972067 1 07132021 929AM tmr Revised: May 2020 ii. Ensure existing trends are functioning properly. Purge old trends and logs. iii. Perform general PC and server maintenance such as hard drive disk clean-up, delete temporary data files and logs. Ensure user logins are current. (d) Reports and Consultation. Comprehensive reports will be provided outlining City's Building Health, Issues, Alarms, Remote Operations Activity, and On -Site Work Activity every six months: a. Customer Value Reports b. Alarm Analysis Reports c. Site Health Reports i. Contractor representative will review and consult with City on the reports. The study will include longer term fixes, modemization opportunities and ROi justifications. This may include modemization recommendations, retrofits, or equipment overhauls. (e) General Clarifications. In accordance with the established visit schedule, Contractor will visit the site and perform regular and preventive maintenance tasks to selected equipment. Contractor will provide a written report at every visit and report any abnormal findings or any issues that require City's attention. If problems are found that are covered under the Agreement, Contractor will arrange to correct those issues. Where the problem is not covered under the Agreement, if applicable, Contractor may provide a cost estimate to resolve the problem or provide other suggestions for resolution. (f) Repair. Replace, Renew Labor and Material. To correct repairable defects or wear in covered equipment found as a result of Contractor's findings or predictions made during Inspection or Planned Maintenance visits, or in response to a City initiated call, Contractor will provide the repair labor and materials to make necessary repairs, or to renew wom parts, or replace defective parts. The parts affected include only maintainable and moving parts provided as part of the BAS. Replacement parts provided by the City will not be eligible for warranty coverage after installation. Repairs will be made during our normal business hours. (g) Assumptions, Clarifications & Exclusions 1. Monthly site visits include the cost of travel. 2. If additional support is needed, Contractor will submit the additional costs to be executed as a T&M change request to cover the added time. Contractor will keep the City informed of the up-to-date status of time remaining in this budget. Page 10 of 21 55575.19165132972097. 07132021_929AM tmr Revised: May 2020 3. Delays due to mechanical, electrical, or IT related issues, production scheduling constraints, or lack of system availability out of Contractor's control, which result in additional site time, will be charged at the standard hourly rates herein. 4. This scope is made contingent upon the worts addressed herein not being adversely affected, either directly or indirectly, by the COVID-19 pandemic and/or the Corona Virus, and is further conditioned upon the following. (i) scheduling issues (including, but not limited to, delays, access issues, or allowed work hours/off--hours work), (ii) overtime hours, or (iii) additional protocols, altered working conditions, or extra costs relating thereto, that arise ps a result of the COVID-19 pandemic and/or Corona Virus will entitle gontractor to an equitable adjustment for time for performance and costs. 5. Out -of -scope repair and reactive work will be provided at the following rates: • Standard Technician - $165/hour • Overtime Technician - $225/hour" 3.6 This Amendment hereby incorporates Section 3.04 Chiller Maintenance Services. as follows: "Section 3.04 Chiller Maintenance Services. (a) General Scope of Work Inspect and provide reports for covered devices and equipment to maintain the performance of the installed systems to their commissioned levels. The service includes the necessary testing, calibration, early detection, identification of actual or predictable problems, and correcting conditions. Type of Service Frequency Preventive Maintenance Tasking Quarterly Annual Service on Chillers 1x Annually Operational Service on Chillers 3x Annually Priority Service Year -Round Wireless Dispatching and Documentations Year -Round Page 11 of 21 55575 18165132472087 l 07132021_424AM_tmr Revised: May 2020 (b) List of Covered Equipment (Muni) COGEN Plant: Qty Make Model Serial Size Type 1 Thermax EJG 50B TBD 400 Absorption TCU-S Ton Chiller Sunrise Plant: Qty Make Model Serial Size Type 1 Multistack TBP TBD Ton Chiller (c) Preventive Maintenance Tasks ABSORPTION CHILLER (MUNI) — ANNUAL INSPECTION 1. Check in with engineering department prior to performing work. 2. Review customer logs (with customer, if available) for operational trends or any problems. 3. Run, log and check all operations of chiller and its capability to perform capacity. Perform test on pump assembly to determine integrity of pump seals a. Record condensate flow rate and condensate back pressure, steam fired chiller b. Check for steam leaks, steam fired chillers. c. Remove sample of lithium bromide solution for analysis. Record hydrometer reading and temperature at time sample was taken. 4. Provide detailed report indicating results of analysis with recommendations, if any, for adding or adjusting chemicals. 5_ Change solution and clean up filter, if applicable. 6. Clean magnetic plug on pump assembly, if applicable. 7. Check and calibrate al I pressure and temperature controls. 8. Check and calibrate all gauges and thermometers. Page 12 of 21 55575.18165\32972087.1 07132021_919Ai41_tmr Revised: May 2020 a. Check accuracy of all thermistors and transducers_ 9. Check for proper operation of all steam valves, if applicable. 10. Inspect all safety controls a. Condenser and chilled water flow switches. b. Hot water flow switch, if applicable. c_ High pressure and temperature cutouts. d. Low solution level cut outs. 11. Inspect and check operation of control valves. 12. Verify operation of purge pump system. a. Change oil. b. Inspect belt (if applicable), replace or tighten as needed. 13. Disassemble, inspect and clean the following magnetic starters and c heck tightness on all electrical connections. a. Solution pump b. Controller c. Purge pump 14. Check and record amperage and voltage on all motors in item #15. 15. Megger and record motor, in item #15. 16. Startup chiller and bromide charge per manufacturer's specifcations Run unit and perform capacity test on chiller and record_ a. Provide bromide to trim charge Yes [ ) No( x] 17. Chiller should run approximately two (2) weeks and a second lithium bromide analysis should be taken and analyzed with a report on the condition of the lith:um bromide solution. Provide detailed service report to engineenng department. ABSORPTION CHILLER (MUNI) -- OPERATIONAL INSPECTION 1 Review customer logs (with customer, if available) for operational trends and any problems 2. Completely check all operations, log all operating temperatures and pressures at currently recorded percentage of capacity. 3. Calculate for proper approaches 4. Check for proper condensate back pressure. 5. Log fluid levels. 6. Report any unusual noises, vibrations and odors 7, Verify capacity control operation and response. a. Micro control panel b. Thermostatic control c_ Demand limit control 8. Visually inspect magnetic starter(s) for signs of heat or discoloration a. Solution pump b. Purge pump 9. Record voltage and amperage of motors in above item and record. 10. Check for proper operation of motors in above Item 11. Inspect steam and/or water piping for leaks. 12. Remove Bromide solution for analysis 13. Replace oil in vacuum pump. 14, Provide operational service report to building engineering department. MULTISTACK CHILLER (SUNRISE) - ANNUAL INSPECTION 1_ Check in with engineering department prior to performing work. 2. Run unit and check operating pressures, temperature, voltages, and amperages. Advise on condition of unit before starting annual shutdown inspection. 3. Check operation of all safeties and calibrate if applicable. Page 13 of 21 55575.18165132972087 I 07132021 929AM_tmr Revised: May 2020 4. Download event logs, trend data and review internal fault logs. 5. Pressurize and leak test chiller prior to performing annual on chiller. Advise on condition before starting annual shutdown inspection. a. Leak test of unit will be performed per compliance with EPA and SCAQMD rule 1415 by a certified auditor. Recordkeeping shall be the responsibility of the equipment owner or operator. b. Provide SCAQMD form and report as required with copies to plant maintenance department_ c_ All leaks not covered within this work scope should be repaired to conform with EPA and SCAQMD rule 1415. d. All minor leaks will be repaired while performing this scope of work at no additional charge. 6. Completely log operating temperatures and pressures at currently recorded percentage capacity. a. Cooler a 1. Chilled water entering temperature and pressure a-2. Chilled water leaving temperature and pressure a 3. Cooler pressure b. Condenser b-1. Condenser water entering temperature and pressure b-2. Condenser water leaving temperature and pressure b-3. Condenser pressure 7. Calculate and record cooler approach for currently recorded % capacity- S. Calculate and record condenser approach for currently recorded% capacity. 9. Log fluid levels 10. Verify liquid level sensor calibration. 11. Report any unusual noises, vibrations, and odors. 12. Check for oil logged in compressor. 13. Verify capacity control operation and response_ a. Inlet guide vanes b. Electronic expansion valves c. Load balance valve 14. Visually inspect compressor starters. 15. Check dr. voltages 16_ Check electrical connections 17. Clean all PCB's to remove dust build up 18. Record amperage for compressors 19 Record kW usage at currently recorded % of rapacity 20 Inspect, disassemble as necessary, clean and tighten all electrical connections on the following: a. Chilled water pump motor magnetic starter(s) b. Condenser water pump motor magnetic starter(s) Page 14 of 21 55575 181032972087.1 07132021 929AM tmr Revised: May 2020 c Chiller control panel 21. Perform Megger test on all motors in above item and record. 22. Record voltage and amperage of motors in above item. 23. Verify and test all safeties a. Pressure: a-1. High pressure a-2. Low pressure b Temperature• b-1. Freeze stat b-2. Chilled water flow 24. Check and calibrate all gauges and thermometers. a. Gauges: a-1. Cooler a-2. Condenser b Thermometers: b-1. Chilled water inlet and outlet b-2. Condenser water inlet and outlet 25. Isolate and drain condenser tube bundle. Advise on condition. a_ Remove water box cover and inspect condition of tubes and crown sheet. Yes[x]no[ ] b. Brush and flush condenser tubes Yes [ x ] no [ ] c_ Perform eddy current analysis and provide report Yes[ ] no [ x ] d Remount water box cover and refill tube bundle. Yes [ x ] no [ ] Note: It is the responsibility of the owner that the above valves hold for isolation and draining of system. Should tubes require chemical cleaning and tube brushing which is not part of this scope of work, it will be an additional cost to this project. 26. Reassemble using all new factory authorized o'rings, gaskets, flter(s} and parts were removed, as specified by manufacturers. 27. Leak test upon completion of work. a. Leak test of unit will be performed per compliance with epa and SCAQMD rule 1415 by a certified auditor. Recordkeeping shall be the responsibility of the equipment owner or operator_ b Provide SCAQMD form and report as required with copies to plant maintenance department. c. All leaks not covered with, n this work scope should be repaired to conform with rule 1415. 28. Start chiller a. Check operation of chiller and operating controls (pneumatic and electric). b. Check operation of control module: a-l. Chilled water set point. a-2. Full load amperage calibrations. a-3. Demand Iimit set point. 29. Provide written service report and log to building maintenance engineering department. Page 15 of 21 55575 18165132972087. i 07132021_929AM tmr Revised: May 2020 MULTISTACK CHILLER (SUNRISE) — OPERATIONAL INSPECTION 1. Check in with engineering department prior to performing work. 2. Review customer logs (with customer, if available) for operational trends and any problems 3. Review internal fault logs. 4. Completely log operating temperatures and pressures at currently recorded percentage of capacity. a. Cooler a-1. Chilled water entering temperature and pressure a-2. Chilled water leaving temperature and pressure a-3. Cooler pressure b. Condenser b-1. Condenser water entering temperature and pressure b-2. Condenser water leaving temperature and pressure b-3. Condenser pressure 5. Calculate and record cooler approach for currently recorded % capacity. 6. Calculate and record condenser apppuach for currently recorded % capacity. 7. Log fluid levels_ 8. Report any unusual noises, vibrations, and odors. 9. Verify capacity control operation and response. a. Inlet guide vanes b. Electronic expansion valves c. Load balance valve 10. Visually inspect compressor starters. 11. Check do voltages 12. Check electrical connections 13. Record amperage for above compressors 14. Record kW usage at currently recorded % of capacity 15. Visually inspect magnetic starter(s) for signs of heat or discoloration. a Chilled water pump b Condenser water pump c. Cooling tower fans 16. Record voltage and amperage of motors in above item. 17. Check cooling tower capacity control. 18. Provide operational service report to building engineering department. (d) Reports and Consultation Comprehensive reports will be provided outlining City's Chiller Health, Issues, Alarms, Remote Operations Activity, and On -Site Work Activity every service: Contractor will review and consult with City on the reports. This may include modernization recommendations, retrofits, or equipment overhauls. (e) General Clarifications In accordance with the established visit schedule, Contractor will visit the site and perform regular and preventive maintenance tasks to selected equipment. Contractor will provide a written report at every visit and report any abnormal findings or any issues that require City's attention. If problems are found that are covered under the Agreement, Contractor will arrange to correct those issues. Where the problem is not covered under the Agreement, if applicable, Contractor may provide a cost estimate to resolve Page 16 of 21 Revised: May 2020 55575.18165132972087.1 07132021_929AM_tmr the problem or provide other suggestions for resolution. (f) Assumptions. Clarifications & Exclusions 1. Services do not include the following: i. Maintenance, repair, or replacement of stationary and/or non - maintainable parts of the chillers, including, but not limited to, cabinets, enclosures, casings, insulating materials, electrical wiring, structural supports, pressure vessels, tubes, door seals, floor drains, thermometers, gauges, flues, ductwork, grilles, heat transfer tubes and coils, refractories, oil or gas heat exchangers, fan housing, and like or similar other non-moving parts; ii. Maintenance, repair, replacement, or other work that is necessitated by (a) circumstances beyond the normal, customary, and anticipated operating environment for the chillers, including, but not limited to, vandalism, fire, lighting, roof leaks, or power failure or (b) City's improper acts or omissions, including, but not limited to, installation of incompatible equipment, improper operating procedures, and improper or inadequate water treatment or filter service; and iii. Any other goods or services not set forth in the Chiller Maintenance Services scope that any governmental authority, insurance company, or other entity may require that has the authority to direct the City to take certain actions concerning the chillers. 2. Any goods or services for, or concerning, the following items: i. Piping, other than refrigerant piping; ii. Maintenance, repair, replacement, or other work due to damage to chillers caused by freezing weather or corrosion; iii. Valves; iv. Electrical supply, disconnect switches, circuit breakers; and v. Monitoring/recording devices affixed to chillers 3. If additional support is needed, Contractor will submit the additional costs to be executed as a T&M change request to cover the added time. Contractor will keep City informed of the up-to-date status of time remaining in this budget. 4. All waste generated from services being performed shall be considered the property of the City and should be disposed of on site. Such items may include, but not limited to, air filters, belts, contactors, cleaning rags, and wiring. 5. Contractor shall not perform any services of any sort that concerns hazardous materials, and shall have no responsibility for accumulation, storage, transportation, or disposal of any hazardous materials or waste generated by the City or present at the sites. 6. Delays due to mechanical, electrical, or IT related issues, production scheduling constraints, or lack of equipment availability out of Page 17 of 21 55575.18165\32972087.1 07132021 929AM_tmr Revised: May 2020 Contractor's control, which result in additional site time, will be charged at the standard hourly rates herein. 7. This scope is made contingent upon the work addressed herein not being adversely affected, either directly or indirectly, by the COVID-19 pandemic and/or the Corona Virus, and is further conditioned upon the following: (i) scheduling issues (including, but not limited to, delays, access issues, or allowed work hours/off-hours work), (ii) overtime hours, or (iii) additional protocols, altered working conditions, or extra costs relating thereto, that arise as a result of the COVID-19 pandemic and/or Corona Virus will entitle contractor to an equitable adjustment for time for performance and costs. B. Out -of -scope repair and reactive work will be provided at the following preferred rates: • Straight time - $150/hour • Overtime - $200/hour • Holidays - $300/hour • Truck Charge - $99/visit 3.7 Attachment "B" Covered Equipment is hereby deleted in its entirety and replaced with "Attachment "B" Amended Covered Equipment attached hereto and incorporated herein by reference." 3.8 Attachment °131" is hereby deleted in its entirety and replaced with "Attachment "B1" Diagram Covered Equipment attached hereto and incorporated herein by reference." 3.9 Continuing Effect of Agreement. Except as amended by this Amendment No. 1, all other provisions of the Agreement remain in full force and effect and shall govern the actions of the parties under this Amendment No. 1. From and after the date of this Amendment No. 1, whenever the term "Agreement" or "Contract" appears in the Agreement, it shall mean the Agreement as amended by this Amendment No. 1. 3.10 Adequate Consideration. The Parties hereto irrevocably stipulate and agree that they have each received adequate and independent consideration for the performance of the obligations they have undertaken pursuant to this Amendment No. 1. 3.11 Severability. If any portion of this Amendment No. 1. is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. 3.12 Counterparts. This Amendment No. 1 may be executed in duplicate originals, each of which is deemed to be an original, but when taken together shall constitute but one and the same instrument. Page IS of 21 55575 18165\32972087 l 07132021 929AM tmr Revised: May 2020 [SIGNATURES ON FOLLOWING PAGE] Page 19 of 21 55575 19165\32972087.1 07132021 929AM tmr Revised: May 2020 SIGNATURE PAGE FOR AMENDMENT NO. 1TO POST -CONSTRUCTION SERVICES AGREEMENT BETWEEN THE CITY OF PALM SPRINGS AND ENGIE U.S. SERVICES IN WITNESS WHEREOF, the Parties have entered into this Amendment No. 1 to the POST CONSTRUCTION SERVICES AGREEMENT as of the day and year first above written. CITY OF PALM SPRINGS Approved By: Justin Clifton City Manager Date A ested By: (A96ony Meji 'City Clerk Approved as to Form: Jeffry allin r City Attorney APPROVED BY CITY COUNCIL: Date. Agreement No. R 7o 55575.18165\32972087 1 07132021_929AM tmr ENGIE U.S. SERVICES Sig re _Co rtney Jenkins Name Vice President and General Manager Title —6 A6 *AL Signature Sarah Pearce, P.E. Name VP Business Control and Finance Title Corporations require two notarized signatures. One signature must be from Chairman of Board, President, or any Vice President. The second signature must be from the Secretary, Assistant Secretary, Treasurer, Assistant Treasurer, or Chief Financial Officer. Page 20 of 21 Revised: May 2020 CALIFORNIA ALL44MPOSE ACKNOWLEDGMENT CIVIL CODE 11189 A natant public or other dk r complednp 1Na oerti knm venfiea any the idanity of the mdvad ,afro aped the document to which this SXf4 icato b alteched, and not the wu&A hteee, soma g or vabSty of that document Ilk W i J •J.r J rot - - riL ► r r � 1p ..J.1�I.. !. 1 1., l�f who proved to me on the baiatdl aukaftiataq aAdarice fd be the perwm(a) whose nturte(e) ia/we subscribed to the within inatrumerd and acknoWedged to me that hatchelthey executed the Same in hbIberAheir ndharized cepocly[rea)• and that by hiaA icItheir e4puture(e) on the kmhumerd the pereon(a). or the entity upon behalf d which the pereon(a) acted. executed the instrument. I 0ortify under PENALTY OF PERJURY under the hews of the State of QJdamm that the, foregoing paragraph A AF4lE HANGARTNE m true sand axreat. V MMISSION #225i 85 , my and official ass, ARY PU9LIG • CALI pRNIAALAMEDA COUNTY COMMISSION EXPIRES MARCH 22 2422g 0 Si9►atine o Notary Pubbc Place Alofsry Seel Abovs 0P7XNVAL Though Mils "akin is optiNiaL Owv*&V flat ffibmrabon can deter a8eratlan of Frio document or fraudulent Amna ltmard of this form to an urentwxW document Doocr pbon of Attached Title or Type of Doc r nwd:7=44�� Document Number of Pagex _ Signer(a) Other Than Named Above CaPooibfleal Cleaned M Signer's Name d= t., Carps -a* 015— — Tile _ ❑ Partner — ❑ Lirrmd ❑ General ❑ InckAduat ❑ Attamey n Fad ❑ Trustee, ❑ Omrdmt or Cannervator ❑Oilier —T Sigma Naas: 4i Officer — TM*): ` r'Y+ y<,L — ❑ Limited ❑ General ❑ hrdvrdual ❑ Atiomw in Fed ❑ Trustee ❑ Guardan or Cormarvator 0 Color *'014 kabond NoteryAr*ocmbarl • wwlrAdzrratbtary.arg • 1-900-LIS NOTARY 0 4=-a78 Ban Brim #.tgOT Page 21 of 21 Revised: May 2020 55575 18155132972087 I 07132021 929AM _tmr ATTACHMENT B COVERED EQUIPMENT QTY ITEM DECRIPTION 2 PHWP 1 & 2 HIGH TEMPERATURE HOT WATER PUMPS 1 PHWP 1 & 2 CONTROLLER VFD / STARTER PUMP CONTROL 2 PHWP 3 & 4 LOW TEMPERTURE HOT WATER PUMP 1 PHWP 3 & 4 CONTROLLER VFD / STARTER PUMP CONTROL 2 HX 1 & 2 HEAT EXCHANGERS PRIMARY HOT WATER SIDE ONLY 1 PRIMARY HOT WATER LOOP CHEMICAL TREATMENT CHEMICAL TREATMENT EQUIPMENT AND CHEMICALS FOR PRIMARY HOT WATER LOOP ONLY —CITY COVERS SECONDARY SIDE 1 Engine oil DELIVERY, INSTALLATION, REMOVAL, DISPOSAL —CITY TO OBTAIN EPA WASTE GENERATOR NUMBER. CITY TO PAY FOR DISPOSAL OF STOCKPILED WASTE OIL AS OF CONTRACT DATE. 1 EG-1 COGENERATION ENGINE 1 DIANE PANEL CONTROLLER FOR ENGINE OPERATION / SOFTWARE 1 PLC (CP-1) & ALL ASSOCIATED ENGINE RELATED SENSORS & ACTUATORS INTERFACE FOR DIANE CONTROLLER / PLC SOFTWARE ONLY 1 CB (LOCATED IN G M S 480V PANEL) TRANSFER INTERLOCK CIRCUIT BREAKER FOR ENGINE 1 SCR CONTROLLER CONTROLLER FOR EMISSIONS 3 SCR CATALYSTS SCR CATALYSTS/ LOCATED IN MEZZANINE 3 OXIDATION CATALYSTS OXIDATION CATALYSTS/ LOCATED IN MEZZANINE 1 EMISSIONS CONTINUOUS MONITORING SYSTEM (CMS) REPORTING DEVICE FOR ENGINE EMISSION 3 GAS CYCLINDERS CALIBRATION GAS FOR CMS CONTROLLER 1 UREA REACTANT UREA FOR EMISSION REDUCTION 2 UREA PUMPS TRANSFER DEVICE FOR UREA (REACTANT BOOSTER PUMPS) 1 UREA PUMP CONTROLLER REACTANT CONTROL 1 CV-20 CONTROL VALVE 1 CV-14 CONTROL VALVE 1 CV-15 WAX VALVE 1 CV-17 CONTROL VALVE 1 ENERGENIUS BATTERY CHARGER 1 MUNI PLANT CHILLER (Preventive Maintenance only —see Section 3.4 THERMAX 400 TON ABSORPTION 1 SUNRISE PLANT CHILLER (Preventive Maintenance on - see Section 3.4 MULTISTACK 150 TON ATTACHMENT 81 COVERED EQUIPMENT DIAGRAM Post Construction Services Agreement City of Palm Springs and ENGIE Services U.S. ENGIE Services Project# ENGIE Services Contract#R3464 POST-CONSTRUCTION SERVICES AGREEMENT This POST-CONSTRUCTION SERVICES AGREEMENT (this "Agreement") is made and entered into as of January 30, 2020 by and between ENGIE Services U.S. Inc., a Delaware corporation with California State Contractor's License Number 995037 ("Contractor"), and the City of Palm Springs, a California charter city and municipal corporation, ("City'). City and Contractor are sometimes hereinafter collectively referred to as the "Parties" and individually as a"Party,'. RECITALS WHEREAS, City owns and operates certain Facilities, including a Municipal Plant consisting of a co-generation engine and chiller system providing power and heating/cooling to various municipal buildings including the Airport, City Hall, County Building (CVEP), Corporate Yard, Fire Station No. 2, and the Police Department & Training Center, (the "Municipal Plant"); WHEREAS, City previously entered into that certain Energy Services Contract with Chevron Energy Solutions Company, a Division of Chevron U.S.A., Inc., a Pennsylvania corporation, (hereinafter "CES"), dated July 29, 2013, (hereinafter the"Energy Services Contract"); WHEREAS, in September 2014 CES was acquired by Oaktree Capital Management, and merged into its renewable energy services company, OpTerra Energy Group, to be managed as OpTerra Energy Services; WHEREAS, in February 2016, OpTerra Energy Services was acquired by ENGIE Group, to be managed as ENGIE Services U.S., Inc.; WHEREAS, pursuant to Article 25 of the Energy Services Contract, ENGIE Services U.S. is the legal successor to CES, and is a Party to the Energy Services Contract; WHEREAS, pursuant to the terms and conditions of the Energy Services Contract, ENGIE Services U.S. predecessor CES was obligated to design, construct, and commission certain Energy Conservations Measures ("ECMs"), to generate certain Energy Conservation Savings ("EC Savings") sufficient to pay the total debt service incurred by City in financing (through issuance of a bond) the original contract amount of $17,507,842 of the Energy Services Contract; WHEREAS, Attachment "G" of the Energy Services Contract incorporated a "Savings Measurement & Verification Plan" identifying the EC Savings associated with the various ECMs to be completed by CES, including ECMs related to the Municipal Plant; WHEREAS, pursuant to the terms and conditions of the Energy Services Contract, as a condition of receiving guaranteed EC Savings, the City agreed to retain CES for a post-construction measurement and verification term of five (5) years, more fully described and identified on Attachment "G" of the Energy Services Contract, inclusive of ECS providing an Energy Resource Manager to the City, at an annual cost of $144,700 for the first year following final completion of the ECMs, escalating to an annual cost of$163,300 for the fifth year following completion of the ECMs; WHEREAS, pursuant to the terms and conditions of the Energy Services Contract, CES was required to develop a Project Schedule for the design, construction and commissioning of the ECMs, and was obligated to achieve Substantial Completion of the Work by no later than thirty (30) months following the City's issuance of a Notice to Proceed; WHEREAS, on August 1, 2013,the City issued CES its Notice to Proceed, WHEREAS, pursuant to the terms and conditions of the Energy Services Contract, CES and its successors were required to achieve Substantial Completion on or before February 1, 2016; WHEREAS, following start up and testing of the Municipal Plant it was discovered that the Municipal Plant was not fully compliant with air quality emissions standards identified in the permits obtained by CES on behalf of the City and issued by South Coast Air Quality Management District("SCAQMD")for the Municipal Plant(the"SCAQMD Permits"), WHEREAS, on behalf of the City, CES and its successors evaluated modifications to the Municipal Plant necessary to conform to requirements stipulated in the SCAQMD Permits; WHEREAS, ENGIE Services U.S. and its predecessors-in-interest, at their sole cost, have continued to evaluate, design, and construct certain modifications to the Municipal Plant, from approximately June 2016 to the present date, (hereinafter the "Extended Commissioning Period"), and have, at their sole cost, paid for certain repairs and maintenance related to the Municipal Plant during the Extended Commissioning Period, all in an effort to demonstrate compliance with the SCAQMD Permits; WHEREAS, during the Extended Commissioning Period, ENGIE Services U.S. has successfully demonstrated compliance with the SCAQMD Permits, and the City prefers to retain ENGIE Services U.S. for post-construction services at the Municipal Plant to ensure its compliance with the SCAQMD Permits; WHEREAS, ENGIE Services U.S. is a full-service energy services company with the technical capabilities to provide services to the City including, but not limited to, post-construction services for the Municipal Plant; WHEREAS, ENGIE Services U.S. has agreed to provide the City with the post-construction measurement and verification services, more fully described and identified on Attachment"G"of the Energy Services Contract, on the terms and subject to the conditions of this Agreement; and WHEREAS, pursuant to the terms and conditions of this Agreement, the Parties intend for this Agreement to operate as a Post-Construction Monitoring, Operation and Maintenance Agreement to supersede and terminate the Energy Services Contract as set forth herein. NOW, THEREFORE,the City and Contractor 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: "Accumulated Savings"means, as of any date of determination,the cumulative total of Excess Savings. "Actual Energy Rate" means, for any Measurement Period, utility rates calculated by Contractor using actual utility billing information supplied by the City for that Measurement Period. "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. "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 Monitoring 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 Monitoring Services. "Assessment Work" means work required to assess the effect on EC Savings for any significant changes to the Facilities(including, but not limited to, building additions, new buildings,and new or changed HVAC equipment). "Base Energy Rate" means the dollars per energy unit for each building and/or each ECM, set forth in the Savings Measurement and Verification Plan and used by Contractor to calculate the EC Savings. "Baseline" means the energy use established by Contractor from time to time (and accepted by the City Manager, which acceptance shall not unreasonably be withheld) for each building in the Facilities, taking into consideration Energy Use Factors for such buildings. "Beneficial Use" means when major new equipment and systems included in the Scope of Work of the Energy Savings Contract are properly installed, inspected, operational, and are being used for their intended purpose. "Business Day" means any calendar day other than a Friday, Saturday, a Sunday or a calendar day which the City recognizes as a public holiday. "Certificate of Final Completion" means the certificate issued by Contractor to City pursuant to the Energy Services Contract, including the certification by the Parties that Contractor and City have inspected the Work and the Work is complete. "City" is defined in the Preamble. "Construction Period" means the period beginning with the first day of the month in which equipment is first installed at the Facilities under the Energy Services Contract and continuing until the Post-Construction Services Commencement Date. "Dispute" is defined in ARTICLE 1414. "EC Savings" means the savings in units of dollars ($) calculated by Contractor in the manner set forth in the Savings Measurement and Verification Plan, achieved through the reduction in consumption or demand through implementation of the Work. "EMS"means an energy management system. "Energy Delivery Point" means, for each Generating Facility, the point at which Utility meter energy is being delivered, as designated in the Interconnection Agreement. "Energy Rate Factors" means factors identified by Contractor (and accepted by the City Manager, which acceptance shall not be unreasonably withheld)which may affect utility rates from the local utility companies. "Energy Savings Report" is defined in Section 4.04. "Energy Savings Term" means the period beginning on the first day of the Construction Period and ending on the earlier of: (i) the day immediately preceding the fifth (5th) anniversary of the Post-Construction Services Commencement Date (unless extended pursuant to Section 4.01(a)); (ii)the termination of this Agreement; (iii) the termination by City of the Savings Guarantee in accordance with Section 4.07; or (iv) the failure by the City to pay the M&V and Support Services Fee in accordance with Section 2.02. "Energy Services Contract" means the agreement made and entered into on 29 July 2013, by and between Chevron Energy Solutions Company, as predecessor-in-interest to ENGIE Services U.S. and the City of Palm Springs. "Energy Unit Savings" means the savings in units of energy, power, water, etc., calculated by Contractor in the manner set forth in the Savings Measurement and Verification Plan, achieved through the reduction in consumption or demand through implementation of the Work. "Energy Use Factors" means factors identified by Contractor(and accepted by the City Manager,which acceptance shall not unreasonably be withheld)which may affect the Baselines or energy use for the Facilities, including but not limited to: hours and levels of occupancy; adjustments in labor force; building use and operational procedures; temperature, humidification, and ventilation levels; installed lighting and scheduled use; building construction and size; general level of repair and efficiency of heating and air conditioning equipment and other energy-using equipment; and amount of heating and air conditioning and other energy-using equipment. "Energy Use Savings" means, for any Measurement Period, those savings, having units of dollars($), achieved for such Measurement Period through reductions in energy use, energy demand, water use, and the use of other commodities. "ENGIE Services U.S."is defined in the Preamble. "Excess Savings" means the excess of EC Savings over Guaranteed Savings, calculated in the manner set forth in Section 4.08(d). "Facilities or Facility"means one or more of the City-owned facilities described in ATTACHMENT A. "Final Completion" means when 100% of the engineering and construction Work as identified in the Scope of Work of the original Energy Services Contract has been completed by Contractor and accepted by the City Manager, including completion of all required training, and delivery to the City of the final documentation (as-built drawings, O&M Manuals and warranty documentation). "Generating Facility" means the cogeneration facility located at Municipal Plant and includes all associated equipment that may be necessary to connect such facility to the applicable Energy Delivery Point. "Governmental Authority" means any federal, state, regional, town, county, city, municipal or local government agency, department or regulatory body having jurisdiction under Applicable Law over the matter in question. "Guarantee Payment" means, for any Measurement Period, either: (i) a cash payment by Contractor to the City in an amount equal to the Guarantee Shortfall for that Measurement Period pursuant to Section 4.01(b); or (ii) additional energy services or energy saving retrofits requested by the City with an agreed value equal to the Guarantee Shortfall for that Measurement Period pursuant to Section 4.01(c). "Guarantee Shortfall" means an amount calculated in accordance with Section 4.09. "Guaranteed Savings" means, for any Measurement Period, the dollar amount set forth below for such Measurement Period, as the same may be adjusted from time to time by Contractor (and accepted by the City Manager, which acceptance shall not unreasonably be withheld) for changes in Energy Rate Factors, Energy Use Factors and consequential revisions to the relevant Baseline: Measurement Period Guaranteed Savings 1 $4,239,455 2 $5,157,944 if extension option exercised '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. "IPMVP" means the International Performance Measurement and Verification Protocol prepared by Efficiency Valuation Organization. "Measurement Period" means each five-year period following the Post-Construction Services Commencement Date. "M&V and Support Services" means the measurement and verification and support services to be performed by Contractor in accordance with the terms and subject to the conditions of this Agreement. "M&V and Support Services Fee Credit" means a credit available to City in an amount equivalent to the first three (3) years of the first Measurement Period, consisting of the first annual fee otherwise payable of Six Hundred Seventy-Five Thousand Seven Hundred Dollars ($675,700.00), plus the second annual fee otherwise payable of Six Hundred Ninety-Five Thousand Nine Hundred Seventy-One Dollars ($695,971.00), plus the third annual fee otherwise payable of Seven Hundred Sixteen Thousand Eight Hundred Fifty Dollars and Thirteen Cents ($716,850.13), for the total amount of Two Million Eighty-Eight Thousand Five Hundred Twenty-One Dollars and Thirteen Cents($2,088,521.13). "M&V and Support Services Fee" means an annual fee payable in advance in quarterly installments by City to Contractor The annual fee for the first (1st)year of the first(1st) Measurement Period shall be Six Hundred Seventy- Five Thousand Seven Hundred Dollars ($675,700.00), and the quarterly installment for the first(1st)year of the first (1st) Measurement Period shall be One Hundred Sixty-Eight Thousand Nine Hundred Twenty-Five Dollars ($168,925.00). The M&V and Support Services Fee shall be increased annually thereafter at a rate of three percent (3%) per annum, each increase to be effective on the first day of each subsequent year of the Measurement Period. The M&V and Support Services Fee for the first three(3)years of the first(1st)Measurement Period shall be waived. "Party"and"Parties"are defined in the Preamble. "Post-Construction Services Commencement Date" means the first day of the month immediately following the later of(i) the full execution of this Agreement, and (ii) the execution of the Certificate of Final Completion by both Parties. "Project Location"means that area or areas where the Work was completed for the Energy Services Contract. "Retainage" means the Retainage(as defined in the Energy Services Contract)previously withheld by the City from payments made to predecessors-in-interest of Contractor in the amount of Nine Hundred Thirty-One Thousand Two Hundred Forty-Five Dollars and Forty-Nine Cents($931,245.49). "Savings Measurement and Verification Plan" means the methodologies and calculations set forth in ARTICLE 4, which provides for the quantification of Energy Unit Savings. "SCAQMD" means South Coast Air Quality Management District. "Stipulated Non-Energy Savings" means, for any Measurement Period, those savings, having units of dollars ($), achieved for such Measurement Period through reductions in non-energy costs due to the implementation of the Work. Stipulated Non-Energy Savings shall be stipulated by the Parties and set forth in the Savings Measurement and Verification Plan. "Substantial Completion" means the stage in the progress of the Work or portion of the Work, where the Work or portion of the Work is sufficiently complete in accordance with this Contract so that City can utilize and take beneficial use of the Work for its intended use or purpose. "Term" is defined in Section 2.07. "Work" means the work completed by Contractor pursuant to the Scope of Work of the original Energy Services Contract, subject to any Change Orders, and includes all design and engineering work and construction work. ARTICLE 2. COMPENSATION;TERM Section 2.01 Maximum Contract Amount. For the Services rendered under this Agreement, Contractor shall be compensated by City in accordance with Section 2.02. Compensation for required services (excluding any optional services pursuant to Section 2.04) shall not exceed the maximum annual contract amount of Six Hundred Seventy Five Thousand Seven Hundred Dollars, ($675,700)(the"Maximum Contract Amount")with an annual escalation of three percent(3%), except as may be provided under Section 2.04. The Maximum Contract Amount shall include the attendance of Contractor at all Project meetings reasonably deemed necessary by the City. Contractor shall not be entitled to any increase in the Maximum Contract Amount for attending these meetings. Contractor accepts the risk that the scope of services identified in ARTICLE 3 may be more costly and/or time-consuming than Contractor anticipates, and that Contractor shall not be entitled to additional compensation for required (and not optional) services set forth in ARTICLE 3. The maximum amount of city's payment obligation under this Section 2.01 is the amount specified in this Agreement. If the City's maximum payment obligation is reached before the Contractor's services under this Agreement are completed, Contractor shall complete the Work and City shall not be liable for payment beyond the Maximum Contract Amount, in addition to compensation for any optional services pursuant to Section 2.04. Section 2.02 M&V and Support Services Fee Invoicing and Payment. The M&V and Support Services Fee for the first three(3) years of the first(1s') Measurement Period shall be waived in an amount equivalent to the M&V and Support Services Fee Credit, and the M&V and Support Services shall be provided by Contractor at no charge to City for such Measurement Periods. Commencing with the fourth (4th) year of the first (151) Measurement Period, the applicable M&V and Support Services Fee of Seven Hundred Thirty-Eight Thousand Three Hundred Fifty-Five Dollars and Sixty-Three Cents ($738,355.63) shall become due and payable, and Contractor shall invoice City for the quarterly installment of the applicable M&V and Support Services Fee in a lump sum on the first day of each quarter of the fourth (41h)year of the first(15') Measurement Period. Commencing with the fifth (51h)year of the first(1st) Measurement Period, the applicable M&V and Support Services Fee of Seven Hundred Sixty Thousand Five Hundred Six Dollars and Thirty Cents ($760,506.30) shall become due and payable, and Contractor shall invoice City for the quarterly installment of the applicable M&V and Support Services Fee in a lump sum on the first day of each quarter of the fifth (51h) year of the first (1s') Measurement Period. City shall pay Contractor such quarterly installment of the applicable M&V and Support Services Fee, without any retention amount withheld, within forty-five (45) calendar days after its receipt of the corresponding invoice. A failure to timely approve and pay an invoice hereunder shall be a material default by City under this Agreement, unless the City gives Contractor prior written notice of its intent to terminate the Agreement in accordance with the provisions herein. Section 2.03 Retainage Invoicing and Payment. Upon execution of this Agreement, Contractor shall invoice City the Retainage which will be paid by City within forty-five(45)calendar days after its receipt. Section 2.04 Optional Additional Services Fee Invoicing and Payment. If during the Term of this Agreement the City requires Optional Additional Services pursuant to Section 3.02(c), City shall be responsible for payment of the direct costs associated with the Optional Additional Services, and Contractor shall be entitled to additional compensation. Given the emergency nature anticipated with the occurrence of an event requiring the City's need for Optional Additional Services pursuant to Section 3.02(c), the Parties hereby agree that an initial authorization of compensation shall not exceed Twenty-Five Thousand Dollars ($25,000.00) for any such event without the prior written approval of the City Manager. Contractor will endeavor to provide City with an estimated cost of Optional Additional Services at the time requested by the City, followed by an itemized invoice accounting for all direct costs incurred by Contractor associated with the Optional Additional Services. City shall have an opportunity to review and approve the final itemized accounting of Optional Additional Services, whose approval shall not be unreasonable withheld, and will pay Contractor within forty-five(45) calendar days after its approval. The total maximum annual amount authorized for Optional Additional Services shall not exceed Two Hundred Fifty Thousand Dollars($250,000.00), unless otherwise approved by the City Council. Section 2.05 Assessment Work Fee Invoicing and Payment. If during the Term of this Agreement the City provides written approval for performance of either required or optional Assessment Work pursuant to Section 4.02(f), City shall be responsible for payment of the direct costs associated with the Assessment Work, and Contractor shall be entitled to additional compensation as identified in the fee schedule included with the detailed written proposal for the Assessment Work provided by Contractor and approved by City. Upon commencement of Assessment Work to be performed by Contractor following City's written approval therefore, Contractor shall submit to the City for its review a monthly progress payment for Assessment Work services completed in the preceding month, and will pay Contractor each monthly progress payment within forty-five (45) calendar days after its approval. Section 2.06 Interest. 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. The M&V and Support Services Fee is not refundable for any reason, unless the City gives Contractor prior written notice of its intent to terminate the Agreement in accordance with the provisions herein. Section 2.07 Term. Unless earlier terminated under this Agreement, this Agreement shall continue in full force and effect for a period of five (5)years commencing on the Post-Construction Services Commencement Date (the "Term"). At the sole discretion of the City, the Term may be extended for a period of five(5)years, (the"First Extension") by City providing written notice of its intention to exercise the First Extension to Contractor no later than One Hundred Eighty (180) days prior to the end of the Term. By mutual agreement of the Parties, the Term may be extended for a second period of five (5) years, (the "Second Extension"), by City providing written notice of its desire to exercise the Second Extension to Contractor no later than One Hundred Eighty(180)days prior to the end of the First Extension, and Contractor agreeing in writing to the Second Extension. Section 2.08 Termination Prior to Expiration of Term. Following commencement of the fourth (4"')year of the first(15f) Measurement Period, City may terminate this Agreement for its convenience at any time, without cause, in whole or in part, upon giving Contractor thirty (30) days written notice. Where termination is due to the fault of Contractor and constitutes an immediate danger to health, safety, and general welfare, the period of notice shall be such shorter time as may be determined by the City. Upon such notice, City shall pay Contractor for services performed through the date of termination. Upon receipt of such notice, Contractor shall immediately cease all work under this Agreement, unless stated otherwise in the notice or by written authorization of the City Manager. After such notice, Contractor shall have no further claims against the City under this Agreement. Upon termination of the Agreement under this section, Contractor shall submit to the City an invoice for work and services performed prior to the date of termination. In no case will the Contractor be obligated to honor the Guaranteed Savings for partially completed Measurement Periods. Section 2.09 Appropriations. This Agreement is subject to and contingent upon funds being appropriated by the City Council for each fiscal year covered by the Agreement. If such appropriations are not made, this Agreement shall automatically terminate without penalty to the City. ARTICLE 3. POST-CONSTRUCTION SUPPORT SERVICES Section 3.01 Energy Resource Manager. Contractor shall at its sole cost and expense employ or retain by sub-contract, and provide to City in accordance with this ARTICLE 3, an Energy Resource Manager (ERM) to provide professional services to City and its on-site cogeneration technicians and other staff, who will work in conjunction with Contractor's Energy Management Group to ensure that the Facilities are operating properly, and that the Energy Use Savings are realized. The ERM will focus on ensuring that equipment is turned off when not needed and will work with the City to investigate and resolve heating and cooling problems. In addition, the ERM will have the time, opportunity, and in-depth knowledge of the Facilities that will facilitate ongoing recommendation for energy savings opportunities. The ERM for this project will have the following duties and responsibilities: (a) Municipal Cogeneration and Sunrise Central Plants • Review, implement, and adjust control strategies of the plant on a monthly basis. • On a weekly basis, monitor and analyze the performance of the equipment including cogeneration engines, chillers, and other balance of plant equipment for optimization of operating sequences for energy savings. • Assist the City in coordinating and managing system maintenance, storage of spare parts, and proper site safety procedures and programs. • Troubleshoot and assess unplanned outages. • Manage the maintenance contract at Municipal Central Plant to ensure proper and timely maintenance is being performed. (b) Energy Management System • Schedule all applicable city buildings on a weekly basis; review temperatures settings, digital inputs, weekly schedules, holiday and daylight savings time changes. • Provide response and support for alarms that are reported by the system. • Assist the City with system re-commissioning, software patches, software version upgrades, and workstation support on an annual basis. (c) Water Irrigation Control System • Spot check, review, implement, and adjust control strategies of the irrigation control on a monthly basis. • Notify City of any alarms or manual overrides. (d) During the Term of this Agreement, the ERM will be employed by Contractor full-time and furnished to the City 40 hours per week with the exception of holidays and Paid Time Off. A minimum of 20 hours per week to be physically onsite. Section 3.02 Coqeneration Operations Support Services. (a) Cogeneration Engine Continuous Monitoring. During the Term of this Agreement, Contractor shall provide continuous real-time monitoring and management of the cogeneration engine and its associated equipment at the Municipal Plant with a 24/7/365 remote support staff available to provide technical support to the City's on- site cogeneration technicians and other staff during the City's normal business hours, ensuring the reliability and efficiency of the Municipal Plant. Alarming points to be continuously monitored include the following: • Continuous Emissions Control System (CEMS) (NOx and CO,VOC emissions levels,Ammonia(NH3)slip) • Low jacket water pressure • High jacket water pressure • High charge temp(max) • High engine oil temp • Low engine oil pressure • Malfunction of engine cooling water pump • Engine vibration • PHWP1 high temp loop failure • PHWP1 low temp loop failure • PHWP2 high temp loop failure • PHWP2 low temp loop failure Continuous monitoring and management of the cogeneration engine and its associated equipment includes immediate dispatch by Contractor of contractors engaged by Contractor to be available to respond and provide technical support, or perform maintenance or make repairs to the cogeneration engine and its associated equipment at the Municipal Plant as may be required to maintain operation within its optimal parameters and SCAQMD regulations, outside of the City's normal business hours and/or when the City's on-site cogeneration technicians and/or other staff are not otherwise available. (b) SCAQMD Emissions Penalty & Variance Coverage. During the Term of this Agreement, Contractor shall monitor and evaluate emissions levels from the Continuous Emissions Monitoring System (CEMS) for conformance with emissions levels identified in the applicable permits issued by SCAQMD for the cogeneration engine and its associated equipment at the Municipal Plant, (the "SCAQMD Permits"), and provide SCAQMD with all required emissions reports as otherwise required by the SCAQMD Permits. If any emissions exceedance occurs, Contractor will pay in full the penalty amount on behalf of City or reimbursed in full to City. If continued operation or maintenance of the cogeneration engine and its associated equipment at the Municipal Plant has caused or is likely to cause emissions levels to exceed levels authorized by the SCAQMD Permits, Contractor will: (1) furnish technical and legal support as necessary to prepare and file variance applications with SCAQMD; (2) arrange for attendance by its technical and legal support team at any meetings with SCAQMD staff and/or its Hearing Board in its consideration and review of variance applications; and (3) pay all related costs in securing variances for continued operation of the cogeneration engine and its associated equipment at the Municipal Plant in accordance with the SCAQMD Permits. In the event SCAQMD denies approval of a variance, Contractor, at its cost, will design and construct any such modifications to the cogeneration engine and its associated equipment at the Municipal Plant as may be required to obtain compliance with emission levels authorized by the SCAQMD Permits, subject to review, approval by SCAQMD, including approval by SCAQMD of modified permits for the cogeneration engine and its associated equipment at the Municipal Plant. Notwithstanding anything to the contrary in this Section 3.02(b), Contractor shall not be responsible for any emissions exceedances, variances or modifications to the cogeneration engine and associated equipment that result from or are required by a change in the SCAQMD standards that do not allow for grandfathering of such cogeneration engine and its associated equipment. (c) Cogeneration Engine Operation & Maintenance. During the Term of this Agreement, Contractor shall supplement the City's existing on-site cogeneration technicians and other staff, and provide full "turn-key' operation and maintenance services (both routine maintenance and any repairs, whether under warranty or outside of warranty)of the items listed in ATTACHMENT B Covered Equipment A diagram showing the location of Covered Equipment is incorporated herein as ATTACHMENT "B1". If the Covered Equipment faults, malfunctions, or experiences operation degradation due to its own causes, failed mechanical equipment will be repaired or replaced, defective parts will be furnished and replaced, required maintenance will be performed, and the Covered Equipment will be restored to its optimal operating parameters by Contractor at no cost to City. If the Covered Equipment experiences a mechanical fault, malfunctions, or experiences performance degradation due to external factors (outside Contractor's direct control, subject to City's agreement as to the existence of such external factor beyond Contractor's direct control, whose approval will not be unreasonably withheld) such as vandalism, Force Majeure event, fuel availability, balance of plant equipment, electric grid events or deficiencies, or thermal load deficiencies, City will be responsible for restoring the Covered Equipment to optimal operating parameters with the City's on-site cogeneration technicians or other staff. Alternatively, if the City's on-site cogeneration technicians or other staff are unable to restore the Covered Equipment to optimal operating parameters; or, a mechanical fault, malfunction, or performance degradation occurs outside of the City's normal business hours and cannot be immediately resolved with the City's on-site cogeneration technicians or other staff, the Covered Equipment will be restored to its optimal operating parameters by Contractor at the City's cost, (considered the"Optional Additional Services"). (i) Routine maintenance activities to be provided by Contractor will correspond with maintenance of the Covered Equipment in accordance with the manufacturer's specifications and requirements, and includes: • Emissions testing • Vibration analysis • Oil changes • Annual alignment • Coolant changes • Engine lubricating oil and generator grease supply • Engine lubricating oil sample kits&analysis • Coolant&corrosion inhibitor supply, and coolant sample kits&analysis • Urea Procurement&Delivery It is hereby acknowledged and agreed that excluded from the routine maintenance activities of the Covered Equipment to be provided by Contractor is the major overhaul of the cogeneration engine at the Municipal Plant to be scheduled in accordance with the manufacturer's recommendation occurring after 60,000 hours of operation. The City will be responsible for paying costs associated with this major overhaul. (ii) Routine inspections and testing to be performed by Contractor on the Covered Equipment at appropriate engine intervals on the following components/functions in accordance with the manufacturer's specifications and requirements, and includes: • Intake air, ignition system • Diane panel • Cylinder heads • Fuel system • Heat exchangers • Thermo reactor • Oxidation catalyst • Lubrication&coolant systems • Cooling water pump • Electrical generator • Flex coupling • Turbocharger and batteries • Continuous Emission Monitoring System (CEMS) • Quarterly(CGA)CEMS • Annual RATA and VOC testing • Annual NH3 slip testing (SCR) • Quarterly cylinder gas audits(CGA) It is hereby acknowledged and agreed that the routine maintenance activities of the Covered Equipment to be provided by Contractor will not invalidate existing warranties. Contractor intends to use City's existing vendors, including Western Energy Systems. In the event Contractor changes vendors, ENGIE Services U.S. will provide City the opportunity to review and reasonably approve the new vendors. However, in no event will Contractor change a vendor that would otherwise invalidate an existing warranty, and will retain such vendors to the extent a warranty remains valid. (d) Engine Control System Operation and Maintenance (PLC). The controls and automation associated with the successful operation of the cogeneration engine and its associated equipment at the Municipal Plant, specifically the PLC, shall be operated and maintained by Contractor, and includes: • Site survey/field audit • Routine maintenance and software upgrades • Source and change control • Emergency support 24/7/365 • Control system documentation (e) Exclusions. During the Term of this Agreement, unless otherwise included under the scope of services of this Agreement pursuant to a written amendment to this Agreement approved by the Parties, "turn-key" operation and maintenance provided by Contractor will exclude the absorption chiller and related equipment in the balance of the Municipal Plant not otherwise identified as "Covered Equipment" and shown on ATTACHMENT "B", and includes the following excluded equipment(the"Excluded Equipment"): • Chillers • Cooling towers • Thermal Energy Storage(TES)tanks • Boilers • Valves not listed as Covered Equipment in Attachment B • Pumps(condenser and chilled water) • Fans(exhaust and makeup air) • Electrical panels, breakers and disconnects not listed as Covered Equipment in Attachment B Insofar as Contractor is not responsible for operation and maintenance of any of the above Excluded Equipment, to the extent that failure of any of the Covered Equipment has a direct effect on the City's optimal operation of any of the Excluded Equipment, upon notification by the City that such an effect has occurred, (subject to Contractor's review and approval, whose approval will not be unreasonably withheld), Contractor will provide, technical consultation from the Energy Resource Manager related to the Excluded Equipment as may be required to return the City's operation of the Excluded Equipment into optimal parameters. To the extent a failure of the Covered Equipment directly causes damage to the Excluded Equipment, and vice versa, the Party responsible for the equipment that failed will repair the damaged equipment. If the City's operation of the Excluded Equipment causes damage to the Covered Equipment, the Contractor will perform such repairs to the Covered Equipment as may be required, subject to payment as Optional Additional Services in accordance with Section 2.04. ARTICLE 4. SAVINGS MEASUREMENT&VERIFICATION PLAN Section 4.01 Guaranteed Savings. (a) Savings Guarantee. In consideration of the payment of the M&V and Support Services Fee, and upon the terms and subject to the conditions set forth herein, Contractor warrants that the City will realize total EC Savings during the Energy Savings Term of not less than the total Guaranteed Savings (the "Savings Guarantee"), as the same may be adjusted from time to time for changes in Energy Rate Factors, Energy Use Factors and consequential revisions to the relevant Baseline. If a Guarantee Payment is made to City following the 111 Measurement Period, City shall have the option to extend the Energy Savings Term for an additional five (5) year Measurement Period, provided that City can only exercise this option by delivering a written notice to Contractor not less than six(6)months prior to the end of the first(1st)Measurement Period. (b) Guarantee Payment. For any Measurement Period in which there is a Guarantee Shortfall, Contractor shall pay to the City, within thirty (30) calendar days after the acceptance by the City of the Energy Savings Report for such Measurement Period,the Guarantee Payment for that Measurement Period. (c) Services or Retrofits in Lieu of Guarantee Payment. If in the judgment of the City, City would benefit from additional energy services or energy saving retrofits, City and Contractor may mutually agree that Contractor will provide such services or retrofits in lieu of the Guarantee Payment for such Measurement Period. For the purposes of this Contract, such services or retrofits will have a deemed value equal to the Guarantee Shortfall for that Measurement Period. (d) Not used. (e) Force Maieure. In the event that Contractor is delayed in, or prevented from, accurately calculating the actual EC Savings for any day of any Measurement Period by reason of any event of Force Majeure pursuant to ARTICLE 12, such circumstance shall not constitute a default, and Contractor shall be excused from performance under this ARTICLE 4 while such event of Force Majeure is continuing. During such Force Majeure event, Projected Energy Savings for the month(s) in which such Force Majeure is continuing shall be used in lieu of actual data, provided that if three (3) or more years of data are available for such month(s), the historical average of such data for such month(s)shall be used in lieu of Projected Energy Savings. Section 4.02 Changes in Energy Use Factors. (a) Adjustments to Baselines. Both Parties have an obligation to notify the other of any change in any Energy Use Factor which may negatively impact the EC Savings. The parties will document such notifications via a shared document accessible by both Parties with a description of the change, the name of the person observing the change, and the date observed. In addition, data collected by Contractor during or before the Energy Savings Term may indicate a change in the energy use pattern at the Facilities or any portion thereof and require a change to one or more Baselines. Potential Baseline Adjustments that have been identified for each Measurement Year will be reviewed by both Parties on a quarterly basis to agree on whether adjustments to the baseline are warranted. Contractor will determine the effect that any such change will have on EC Savings and present to the City a written analysis of the effects of such changes. Contractor will also recommend corresponding revisions to the Baselines and/or EC Savings subject to City's review and approval, whose approval will not be unreasonably withheld. (b) Adjustments to Guaranteed Savinqs. If a change in any Energy Rate Factor or Energy Use Factor results in a reduction of EC Savings, then the Guaranteed Savings for the corresponding Measurement Period(s) will be decreased by the same amount. Contractor shall notify the City, in writing, of all such changes, subject to City's review and approval,whose approval will not be unreasonably withheld. (c) Changes to Facilities. City or Contractor may from time to time propose to make changes to the Facilities for the express purpose of increasing EC Savings or addressing Force Majeure events. It is agreed that these changes will only be made with the written consent of both Parties, which will not be unreasonably withheld. The Baseline will not be adjusted to reflect any changes agreed to under this Section 4.02(c). (d) Baseline Adjustment. If Contractor proposes changes to the Facilities that would not unreasonably interfere with the conduct of City's business or cause the City to incur additional costs, City may in its sole discretion consent to the changes, and in such event Contractor will recommend an adjustment to the Baseline upward by the amount of savings projected from the changes, subject to City's review and approval, whose approval will not be unreasonably withheld. City acknowledges that a baseline adjustment will be necessary to adjust for the lack of a viable hot water distribution system for the distribution of hot water from the Municipal Plant until such time as the distribution system is restored to proper operation by the City. (e) Projected Energy Savings. During the Energy Savings Term, when the ultimate effect of the Work on EC Savings cannot be accurately determined due to pending construction or changes to the Scope of Work, Projected Energy Savings for the Facilities will be used until the effect of the changes can be determined by Contractor (f) Assessment Work. If, after the first Measurement Year, Contractor estimates that a Change in Energy Use Factor has occurred which will require more than 20 hours of engineering analysis to quantify, Contractor has the right to charge the City for Assessment Work deemed required by Contractor pursuant to this Section 4.02 ,. Before initiating required Assessment Work, Contractor will notify the City in writing of the reasons requiring the Assessment Work, and provide a detailed written proposal identifying the scope of work and direct costs associated with the required Assessment Work. The City will, within forty-five (45) calendar days, give Contractor written approval to proceed or, alternatively, at no charge to Contractor, to stipulate that the Projected Energy Savings for the portion of the Facility in question be used for the purpose of meeting the Savings Guarantee for such Measurement Period and thereafter. If Contractor does not receive written approval within forty-five (45) calendar days, the Projected Energy Savings for the portion of the Facility in question will be used until such time as the City approves the required Assessment Work. City may also request optional Assessment Work for future projects related to the Facilities that may be undertaken by the City. As part of any request for optional Assessment Work, City will provide a clear definition of the requested scope, from which Contractor will evaluate and provide to City a detailed written proposal identifying the requested services to be furnished by Contractor or its subcontractors and consultants, and the fee for the requested services. (g) Changes in Energy Use Factors. Regardless of when Changes in Energy Use Factors are reported or discovered, the impact of the change will be calculated back to the date when the change began to negatively impact EC Savings. The City agrees to supply Contractor in a timely manner with information that is requested by Contractor for the calculation of EC Savings. (h) Changes in Savings Calculations. Any changes made by Contractor to the savings calculations shall be presented to the City Manager for approval in advance. The City Manager's approval of savings calculations shall not be unreasonably withheld. If the City Manager does not respond within sixteen (16) Business Days after receipt of revised savings calculations from Contractor, the savings calculations shall be deemed approved. (i) Inspection of Facilities. The City agrees that Contractor shall have the right, with prior notice per the City's guidelines, to inspect the Facilities to determine if the City has consistently complied with its obligations as set forth above. In the event that any inspection discloses that the City has failed, on or prior to the date of such inspection, to be in compliance with any of its obligations, then the Guaranteed Savings shall be assumed to have been achieved for the portion of the Energy Savings Term during which such failure shall have existed. Section 4.03 City Maintenance. The City will maintain (or cause to be maintained) all of its energy consuming equipment except the Covered Equipment, in accordance with the maintenance schedules and procedures recommended by the manufacturers of the relevant equipment. City will diligently effect repairs when unplanned maintenance is required, particularly when it impacts the ability of the Covered Equipment to perform optimally. Pursuant to Section 3.02, Contractor will, on behalf of the City, maintain (or cause to be maintained) the Covered Equipment, in accordance with the maintenance schedules and procedures recommended by the manufacturers of the Covered Equipment. Section 4.04 Energy Savinqs Report. Annually during the Energy Savings Term, Contractor shall submit to the City an energy savings report containing a precise calculation of the EC Savings during the applicable Measurement Period (an "Energy Savings Report"). The Energy Savings Report shall be submitted within ninety (90) calendar days after receipt of all needed information for the year, unless additional information is needed to accurately calculate the EC Savings, in which case the City shall be notified of such a situation within the ninety (90) calendar-day period. Section 4.05 On-Site Measurements. The City irrevocably grants to Contractor the right, during the Energy Savings Term, to monitor EC Savings and energy management performance by conducting on-site measurements, including, but not limited to, reading meters and installing and observing on-site monitoring equipment. Contractor shall not exercise such right in a manner that unreasonably interferes with the business of City as conducted at the Facilities as of the date hereof. The City shall cooperate fully with the exercise of such right by Contractor pursuant to this Section 4.05. City shall further cooperate with Contractor's performance of the Savings Measurement and Verification Plan by providing utility information, changes in Energy Use Factors, and/or additional information as reasonably requested by Contractor. Section 4.06 Internet Communication Path. To facilitate Contractor's monitoring of the Work, City shall, at City's expense, maintain an internet communication path between City's energy management system(s) and Contractor's systems. Section 4.07 Termination of Guaranteed Savinqs. If(i)the City notifies Contractor in writing of its intent to terminate the Savings Guarantee, (ii) this Contract is terminated by Contractor for default by City or by City for any reason permitted by this Contract or(iii)the City is in default of any of its other obligations under this Agreement, or(iv) the first Measurement Period has been reconciled without a Guarantee Payment being paid to City, the obligation of Contractor to prepare and deliver the Energy Savings Report and to make a Guarantee Payment shall also be terminated. If such termination occurs on a date other than the last day of a Measurement Period, Contractor shall have no obligation to make a Guarantee Payment or prepare and deliver an Energy Savings Report for such Measurement Period. Section 4.08 Calculations. (a) Not used. (b) Calculation of EC Savings. EC Savings for any Measurement Period will be equal to the sum, for such Measurement Period, of(i) the Energy Use Savings, plus (ii) the Stipulated Non-Energy Savings, in each case as adjusted for changes in Energy Use Factors during such Measurement Period. EC Savings achieved during the Construction Period shall be included in the EC Savings for the first Measurement Period. (c) Calculation of Energy Use Savings. Energy Use Savings shall be calculated by Contractor as the product of(i) the Energy Unit Savings multiplied by (ii) the greater of (a) the applicable Base Energy Rate or (b) the applicable Actual Energy Rate. (d) Calculation of Excess Savings. From and after the Post-Construction Services Commencement Date, Excess Savings shall be calculated by Contractor as the difference, to the extent positive, between (i) the EC Savings for the relevant Measurement Period minus(ii) the Guaranteed Savings for such Measurement Period. During the Construction Period, Excess Savings will be calculated by Contractor in the manner set forth in the Savings Measurement and Verification Plan. For the avoidance of doubt, Excess Savings will not be reduced below zero. Section 4.09 Calculation of Guarantee Shortfall. The Guarantee Shortfall, for any Measurement Period, shall be calculated by Contractor as the difference, to the extent positive, between (i) the Guaranteed Savings for such Measurement Period minus(ii)the sum of EC Savings for such Measurement Period. Section 4.10 Methodologies and Calculations. The following details the methodologies and calculations to be used in determining the Energy Unit Savings under this Agreement. Table 4.1-1 ECM M&V Option Matrix Annual Electric Gas Annual Annual Water M&V Electric Gas Water ECM Facility Rate Rate Rate Method Savings Savings Savings (kWh) (�) (therms) ($) (ccf) ($) L1,L1-C:Lighting Upgrades-Interior& City-Wide Option A 805,302 0.1500 Exterior L1-A: Lighting Upgrades- Municipal Option C 1,251,068 0.1129 Interior&Exterior 1_1-13: Lighting Upgrades- Sunrise Option C 254,972 0.0897 Interior&Exterior Municipal- Option C 2,950,323 0.1129 (86,337) 0.5802 M1-A: Central Plant Import Cogeneration Upgrade Municipal- Option C (140,642) 0.0403 Export M2-A: Energy Management Control Municipal Option C 475,968 0.1129 System Sunrise- Option C (2,128,856) 0.0897 344,081 0.6552 M1-B: Central Plant Import Upgrade Sunrise- Export Option C (282,814) 0.0375 M2-13: Energy Management Control Sunrise Option C 168,951 0.0897 System W1: Irrigation/Water City-Wide Stipulated - - 144,604 0.8383 Management (a) M&V Option A: This option allows for the energy savings to be predicted, measured, and agreed upon between the City and Contractor One-time measurements and stipulated parameters are used to quantify savings that are stipulated for the term of the Contract. 1. Contractor will supply a one-time report to the City detailing the measurements and calculation of savings. If the calculated savings fall short of those expected, Contractor will have the opportunity to remedy the short fall and re-measure and calculate the results. Such work will be done at Contractor's expense and shall not be unreasonably denied by the City, as long as such work does not interfere with the City's use of the Facilities. These calculated savings will be defined as Energy Unit Savings and will be agreed to occur each year of each Measurement Period. During the Construction Period, the Energy Unit Savings will be calculated by adding the savings measured for the whole months between Substantial Completion or Beneficial Use of the ECM and the Post-Construction Services Commencement Date. 2. Scope of Work The Energy Savings generated from the installation of the lighting ECMs shall be measured and verified using IPMVP Option A. These savings shall be measured and calculated by the following method. The reduction in units of electric demand (kW)from the installation of the lighting ECMs is to be measured directly using a calibrated true-RMS watt meter or stipulated based on the following parameters. Existing and to-be-installed fixture types shall be grouped project-wide, based on the type of fixture (i.e. type of lamp, number of lamps and ballast type) and the assumed wattage. All lamps without ballasts (incandescent), along with exit signs, shall be stipulated at their manufacturer's rated wattage. Groups of fixtures with ballasts shall be measured in the following manner. (i) For groups with 1000 or more fixtures, eight (8) or more instantaneous measurements of single fixtures or circuits containing only one type of fixture shall be taken. The average wattage per fixture shall be calculated and be the measured wattage for that fixture type. (ii) For groups with 500 or more fixtures but fewer than 1000, six (6) or more instantaneous measurements of single fixtures or circuits containing only one type of fixture shall be taken. The average wattage per fixture shall be calculated and be the measured wattage for that fixture type. (iii) For groups with 100 or more fixtures but fewer than 500, four (4) or more instantaneous measurements of single fixtures or circuits containing only one type of fixture shall be taken. The average wattage per fixture shall be calculated and be the measured wattage for that fixture type. (iv) For groups with 99 or fewer fixtures or where measurements are not physically possible, the measured wattage shall be stipulated for that group to equal the wattage defined in Tables 4.1-2 and 4.1-3, showing the existing fixture codes, quantities, and manufacturer's rated wattage for these type fixtures. Table 4.1-2 Existing Interior/Exterior Lighting Fixture Quantities Pre-M&V Type Watts Qty #to M&V 1 L 6W EXIT 10 1 0 2L 7W CFL EXIT 14 2 0 1L 25W Incand. 25 1 0 1 L 26W Incand. 26 1 0 1 L 30W Incand. 31 3 0 1 L 32W T8 31 3 0 1 L 4'34W T12 32 7 0 1 L 40W Incand. 40 27 0 2L 20W Incand. EXIT 40 3 0 1L32WCFL 40 16 0 1L 34W T12 43 133 4 1 L 45W Incand. 45 100 0 1 L 3'30W T12 46 8 0 1 L 50W Incand. 50 440 0 2L 2'20W T12 56 2 0 1 L 56W Incand. 56 1 0 2L 4'32W T8 60 519 6 -1 1- 60W Incand. 60 114 0 -1 1- 65W Incand. 65 1025 0 2L 2'34W T12 U 86 184 4 2L 4'34W T12 72 468 1 L 75W Incand. 75 39 0 3L 4'32W T8 93 73 0 -1 1- 90W Incand. 90 2 0 -1 1- 70W HPS 95 22 0 -1 1- 100W Incand. 100 41 0 2L 6'55W T8 122 1 0 3L 4'34W T12 115 35 0 3L 4'40W T12 93 8 0 4L8'32WT8 118 18 4 4L 4'32W T8 118 33 0 2L 60W Incand. 120 8 0 2L 6'55W T8 122 1 0 2L 8'75W T12 168 15 0 1L 10OW HIPS 138 60 0 2L 60W CFL. 123 26 0 4L 4'34W T12 144 200 4 1L 150W HPS 188 123 0 1 L 150W Incand. 150 6 0 2L 75W Incand. 150 7 0 4L 40W Incand. 160 4 0 2L 8'75W T12 168 15 0 6L 4'32W T8 175 3 0 1 L 150W MH 190 58 0 2L 70W HIPS 190 8 0 1 L 175W MH 215 65 0 6L 4'34W T12 216 16 0 4L 60W Incand. 240 16 0 Table 4.1-2 Existing Interior/Exterior Lighting Fixture Quantities Pre-M&V Type Watts Qty #to M&V 71- 40W Incand. 280 4 0 1 L 250W HPS 295 10 0 1 L 30OW Incand. 300 11 0 21- 15OW Incand. 300 5 0 4L 75W Incand. 300 2 0 8L 42W CFL 336 4 0 21- 175W MH 430 17 0 1 L 40OW MH 458 360 6 Fixtures not scheduled for a retrofit. NR-Skylight/Solar Tube 0 3 0 NR-Self-Luminous EXIT 0 38 0 NR- 1 L 3W LED EXIT 3 165 0 NR- 1 L 13W CFL 17 8 0 NR- 1 L 15W CFL 20 13 0 NR- 1 L 18W CFL 26 99 0 NR- 1 L 18W Incand 26 30 0 -NR-2L 10W CFL 32 6 0 NR- 1 L 23W CFL-S 23 37 0 NR- 1 L 3'25W T8 26 47 0 NR- 1 L 26W CFL 26 124 0 NR-2L 13W CFL 31 5 0 NR-2L 18W CFL 45 29 0 NR- 1 L 40W CFL 46 3 0 NR- 1 L 42W CFL-S 42 3 0 NR- 1 L 50W Incand. 50 73 0 NR- 1 L 55W CFL 55 95 0 NR- 1L 65W Incand. 65 65 0 NR-2L 42W CFL 84 210 0 NR- 1L 90W Incand. 90 1 0 NR-4L 23W CFL-S 92 1 0 NR- 1 L 70W MH 95 11 0 NR- 1 L 70W MV 93 9 0 NR- 1 L 10OW HPS 138 27 0 NR-6L 15W CFL 102 11 0 NR-2L4'54WT5 117 12 0 NR-2L 60W Incand. 120 2 0 NR- 1 L 15OW HPS 188 13 0 -NR-2L 70W HPS 190 156 0 NR-4L 4'54W T5 234 8 0 NR- 1 L 25OW HPS 295 27 0 NR-8L 42W CFL 336 166 0 -NR-2L 20OW Incand. 400 1 0 NR- 1 L 40OW HPS 465 17 0 NR- 1 L 50OW Incand. 500 16 0 NR-2L 40OW HPS 930 2 0 NR-2L 50OW Incand. 1000 1 0 Total Qty 5879 24 Total Qty to Retrofit 1 4342 Total Qty to M&V 1433 NR= No Retrofit Table 4.1-3 Proposed Interior/Exterior Lighting Fixture Quantities Post-M&V Type Watts Qty #to M&V 1 L 3W LED 3 566 0 1 L 5W LED 5 134 0 Table 4.1-3 Proposed Interior/Exterior Lighting Fixture Quantities Post-M&V Type Watts Qty #to M&V 1 L 9W CFL-S 9 568 0 1 L 13W CFL-S 13 68 0 1 L 14W CFL-S 14 15 0 1 L 16W CFL-S 16 315 0 1 L 18W CFL-S 18 63 0 1 L 19W CFL-S 19 21 0 1 L 4'28W T8 Low 22 137 4 1 L 23W CFL-S 23 49 0 1L3'25WT8 27 11 0 2L 13W CFL-S 26 7 0 2L 16W CFL-S 32 5 0 2L 2' 17W T8 33 206 4 2L 18W CFL-S 34 1 0 4L 9W CFL-S 36 4 0 1 L 37W LED 37 30 0 2L 19W CFL-S 38 6 0 2L 4'28W T8 Low 42 1054 8 2L 23W CFL-S 46 5 0 1 L 47W LED 47 60 0 2L 4'28W T8 50 138 6 4L 13W CFL-S 52 1 0 4L 14W CFL-S 56 4 0 7L 9W CFL-S 63 4 0 3L 4'28W T8 Low 63 42 0 1 L 68W CFL-S 68 11 0 4L 19W CFL-S 76 2 0 1 L 77W LED 77 200 0 4L 4'28W T8 Low 84 154 4 4L 4'28W 99 22 0 1L 10OW MH 128 63 0 1 L 175W HPS 215 10 0 4L 4'54W T5 234 4 0 6L 4'54W T5 351 280 4 1 L 320W MH 365 80 4 Fixtures not scheduled for a retrofit. NR-Skylight/Solar Tube 0 3 0 NR-Self-Luminous EXIT 0 38 0 NR- 1 L 3W LED EXIT 3 165 0 NR- 1 L 13W CFL 17 8 0 NR- IL 15W CFL 20 13 0 NR- 1 L 17W CFL 16.5 3 0 NR- 1 L 18W CFL 26 99 0 NR- 1 L 18W Incand 26 30 0 NR-2L 10W CFL 32 6 0 NR- 1 L 23W CFL-S 23 37 0 NR-1 L 3'25W T8 26 47 0 NR- 1 L 26W CFL 26 124 0 NR-2L 13W CFL 31 5 0 NR-2L 18W CFL 45 29 0 NR- 1 L 40W CFL 46 3 0 NR- 1 L 42W CFL-S 42 3 0 NR- 1 L 50W Incand. 50 73 0 NR- 1 L 50W LED 50 3 0 NR- 1 L 55W CFL 55 95 0 NR- 1 L 65W Incand. 65 65 0 NR-2L 42W CFL 84 210 0 NR- 1 L 90W Incand. 90 1 0 Table 4.1-3 Proposed Interior/Exterior Lighting Fixture Quantities Post-M&V Type Watts Qty #to M&V NR-4L 23W CFL-S 92 1 0 NR- 1L 70W MH 95 11 0 NR- 1 L 70W MV 93 9 0 NR- 1 L 100W HPS 138 27 0 NR-6L 15W CFL 102 11 0 NR-2L4'54WT5 117 12 0 NR-2L 60W Incand. 120 2 0 NR- 1 L 150W HPS 188 13 0 NR-2L 70W HPS 190 156 0 NR-4L 4'54W T5 234 8 0 NR- 1 L 250W HPS 295 27 0 NR-8L 42W CFL 336 166 0 NR-2L 200W Incand. 400 1 0 NR- 1 L 400W HPS 465 17 0 NR- 1 L 500W Incand. 500 16 0 NR-2L 400W HPS 930 2 0 NR-2L 500W Incand. 1000 1 0 Total Qty 5879 28 Total Qty to Retrofit 4342 Total Qty to M&V 1969 NR= No Retrofit 3. The baseline energy consumption for each room will be the pre-retrofit measured (or stipulated) average fixture wattage multiplied by the Annual Hours for the area type. Post-retrofit energy consumption for each room will be the measured post-retrofit average fixture wattage multiplied by either the Annual Hours or the Annual Hours with Occupancy Sensor for the area type depending on whether or not an occupancy sensor was installed as part of the Scope of Work. 4. The annual unit consumption savings (kWh) for each room will be calculated by subtracting the post-retrofit annual energy consumption from the baseline annual energy consumption. Annual Hours and Annual Hours with Occupancy Sensor are stipulated in the Energy Services Contract by Building and summarized below in Table 4.1-4. 5. The Energy Unit Savings (kWh) shall be the sum of the calculated annual unit consumption savings for each retrofit. Table 4.1-4:City of Palm Springs -City-Wide Table 4.1-4: Continued Lighting Hours of Operation Annual Annual Area Type Annual Hours with Area Type Annual Hours with Hours Occupancy Hours Occupancy Sensor Sensor AEROBICS 2,500 2,000 NORTH ENTRANCE 4,000 N/A ALL LEVELS-PARKING 7,000 N/A NORTH WALL 4,000 N/A ASSEMBLY ROOM 1,500 1,200 OFFICE 1,500 1,200 ATRIUM 5,000 N/A Office-24/7 8,760 7,008 AUDITORIUM 2,500 2,000 Office-Airport 4,500 3,600 BASEMENT-PARKING 7,000 N/A OFFICE-COACHES 1,500 1,200 BASEMENT-STORAGE INACTIVE 500 400 OFFICE- INACTIVE 750 600 OFFICE- BEDROOM-MEN 1,500 1,200 INTEROGATION 1,000 800 BEDROOM-WMN 1,500 1,200 Office-IT 3,500 2,800 BETWEEN CITY HALL& ANNEX 4,000 N/A OFFICE-LAB 2,500 2,000 BLDG PERIMETER 4,000 N/A Office-Library 2,250 1,800 BLDG PERIMETER- SOFFIT 4,000 N/A OFFICE-OPEN 7,000 5,600 BOXING RING 2,000 1,600 Office- Restaurant 7,000 5,600 Table 4.1-4: City of Palm Springs -City-Wide Table 4.1-4: Continued Lighting Hours of Operation Annual Annual Area Type Annual Hours with Area Type Annual Hours with Hours Occupancy Hours Occupancy Sensor Sensor Break Room 4,000 3,200 OFFICE- RESTROOM 1,000 800 Breakroom 2,000 1,600 Office-Retail 7,000 5,600 CASHIER 3,500 2,800 Office-Security 2,250 1,800 CLASSROOM 2,250 1,800 OFFICE-SERVER 3,500 2,800 CLASSROOM-COMPUTER OFFICE-SERVER LAB 3,000 2,400 ROOM 3,500 2,800 COFFEE SHOP 2,500 2,000 OFFICE-STORAGE 500 400 CONCESSIONS 1,000 800 OFFICE-TICKETS 750 600 Concourse-Airport 8,760 N/A Office-Work Room 7,000 5,600 Conference 2,500 2,000 OPEN AREA 3,500 N/A CONFERENCE-CITY COUNCIL 1,500 1,200 OPEN AREA-INACTIVE 1,000 N/A CONFERENCE ROOM 2,000 1,600 PARKING LOT 4,000 N/A COURTYARD 4,000 3,200 PATIO 4,000 N/A DINING AREA 2,500 2,000 PORCH 4,000 N/A Dining Room 2,000 1,600 PRESS BOX 1,000 N/A Dorm Room 2,500 2,000 PRO SHOP 3,500 N/A Dormitory 2,500 2,000 Restaurant 7,000 N/A DRESSING ROOM 1,500 1,200 Restroom 2,500 2,000 EAST WALL 4,000 N/A RESTROOM-BOYS 2,500 2,000 ELEVATOR 8,760 N/A RESTROOM-GIRLS 2,500 2,000 ELEVATOR-NORTH 8,760 N/A RESTROOM-INACTIVE 750 600 ENTRANCE 3,500 N/A Restroom-Lockers 7,000 5,600 ENTRANCE CANOPY 4,000 N/A RESTROOM-MEN 8,760 7,008 EXHIBIT HALL 1,000 N/A RESTROOM-MENS 4,500 3,600 Exterior 4,000 N/A Restroom-Shower 3,500 2,800 FIRING RANGE BOOTH 1,000 800 RESTROOM-SINGLE 1,500 1,200 FIRING RANGE ENTRANCE 1,500 1,200 RESTROOM-UMPIRES 500 400 FITNESS ROOM 7,000 5,600 RESTROOM-WMN 8,760 7,008 GALLERY-DISPLAY ROOM 1,000 800 Retail Shop 7,000 N/A GALLERY-ENTRANCE 1,000 N/A SHELTER 3,500 N/A GARAGE 4,500 N/A Shop 2,000 N/A Garage Bay 2,500 N/A SHOP-MAINTENANCE 3,500 N/A GYM -ENTRANCE 3,500 N/A SIGN 8,760 N/A GYMNASIUM 3,500 2,800 SOFFIT 4,000 N/A HALLWAY 7,000 N/A SOUTH-TOP LEVEL 4,000 N/A HALLWAY-ALCOVE 7,000 N/A SOUTH WALL 4,000 N/A SPOT LIGHT MOUNTED HOLDING CELL 8,760 N/A ON STREET LIGHT 3,000 N/A HOLDING CELL-BOOKING 8,760 N/A STAGE 1,000 N/A Kitchen 7,000 5,600 STAIRS 7,000 N/A KITCHEN 2,000 1,600 Stairway 8,760 N/A KITCHEN-INACTIVE 2,000 1,600 STORAGE 1,500 1,200 Library 3,000 2,400 STORAGE-ACTIVE 2,500 2,000 Living Room 2,000 1,600 STORAGE-GOLF CART 3,000 2,400 Loading Dock 2,000 N/A STORAGE-INACTIVE 1,500 1,200 LOBBY 7,000 N/A STORAGE-OPEN 2,000 1,600 Table 4.1-4: City of Palm Springs -City-Wide Table 4.1-4: Continued Lighting Hours of Operation Annual Annual Area Type Annual Hours with Area Type Annual Hours with Hours Occupancy Hours Occupancy Sensor Sensor STREET LIGHT WITH 2 Locked N/A N/A SPOT LIGHTS 4,000 N/A STREET LIGHT WITH 3 Locker Room 2,000 1,600 SPOT LIGHTS 4,000 N/A STREET LIGHT WITH 4 LOCKER ROOM-MEN 1,000 800 SPOT LIGHTS 4,000 N/A STREET LIGHT WITH Locker Room-Showers 2,000 1,600 OUT SPOT LIGHT 4,000 N/A TREE LIGHT WITH 1 LOCKER ROOM-STADIUM 500 400 LAMP 3,000 N/A TREE LIGHT WITH 2 LOCKER ROOM-UMPIRES 500 400 LAMPS 3,000 N/A LOCKER ROOM-WMN 1,000 800 Vestibule 8,760 N/A LOCKER ROOM SHOWERS -MEN 1,500 1,200 Waiting Room 2,000 N/A Lounge 4,000 3,200 WALKWAY 4,000 N/A LOUNGE-BREAKROOM 1,500 1,200 WALKWAYS 4,000 N/A MARTIAL ARTS 1,500 1,200 WEIGHT ROOM 1,500 1,200 MECHANICAL/ELECTRICAL 1,500 1,200 WEST WALL 4,000 N/A MULTI-PURPOSE 3,000 2,400 WORKROOM 2,000 1,600 Multipurpose Room 2,500 2,000 Work Shop 2,000 1,600 6. Post-retrofit measurements will be performed one time, after the retrofit is complete. Post-retrofit ECM performance is assumed to be consistent for the duration of the Energy Savings Term. (b) M&V Option C: Option C verification techniques calculate savings by comparing the post-retrofit overall energy use in a building or facility with pre-retrofit energy Baselines. This methodology captures all the savings under a particular meter and requires ongoing monitoring of the facilities. 1. The monthly Energy Unit Savings are calculated by subtracting the monthly post-retrofit consumption from the corresponding monthly Baseline consumption and presented in ongoing reports. During the Construction Period, Option C Energy Unit Savings will be calculated each month. 2. Scope of Work Calculations: Except for where Projected Savings are to be utilized as detailed in this contract, for each Facility's Baseline, Energy Unit Savings will be calculated by subtracting the post implementation current month's usage from the Baseline usage for that month. The specific equations for calculating the Energy Unit Savings are as follows(refer to Meter Matchup Table): Baseline Usage-Current Usage= Energy Unit Savings Current Usage = Total units (i.e. kWh, kW, ccf, therms, gals, etc.) from the automated metering system (checked annually against utility bills). Baseline Usage: The Pre-Construction Period usage, as detailed below, revised from time-to- time as detailed in this Contract. Meter Matchup Table Baseline Post-Retrofit Comments Meter Name Units Loads Served Meter Name Units Loads Served All electric loads in plant, All electric loads in all loads in Airport, plant,all loads in Airport Fire Station, Airport,Airport Fire Municipal Police Department, Municipal Plant Station,Police Plant SCE kWh Police Department Automated kWh Department,Police Import Meter Training,City Hall, City Import Meter Department Training, Yard and County Admin' City Hall,City Yard and buildings. County Admin buildings. Municipal Municipal Plant Post-retrofit export Generation in excess of Generation in excess Plant SCE kWh consumption. Automated kWh of consumption. expected to be Export Meter Export Meter nearly zero. CCF will be Municipal Plant converted to Therms Automated CCF Cogeneration Unit using monthly Cogeneration energy content Meter values published by as utility. CCF will be Engine and Absorber, Municipal Plant converted to Therms Municipal heating equipment Automated Thermax Chiller,Hot using monthly Plant Main serving heating loads in Absorber/Boiler CCF Water Boilers. energy content Gas Meter Therms Airport,Airport Fire Meter values published by and Building Station,Police as utility. Gas Meters Department,City Hall, CCF converted to and building gas meters. Airport CCF Domestic Hot Water Therms. Airport Fire CCF Domestic Hot Water CCF converted to Therms. City Hall CCF Domestic Hot Water CCF converted to Therms. Police CCF Domestic Hot Water CCF converted to Depart ent Therms. All electric loads in plant, All electric loads in Sunrise Plant all loads in Leisure Sunrise Plant plant,all loads in Automated kWh Center,Library,Pavilion, Automated kWh Leisure Center,Library, Import Meter Pool,Skate Park,and Import Meter Pavilion, Pool,and Stadium Facilities I building as meters Sunrise Plant Engine,heating CCF will be Main Gas equipment serving Sunrise Plant converted to Therms Meter and Therms heating loads in Leisure Automated CCF Hot Water Boilers using monthly Building Gas Center,Library,Pavilion, Central Plant energy content Meters Pool,and building gas Meter values published by meters gas utility Leisure Center CCF Domestic Hot Water CCF converted to Therms Library CCF Domestic Hot Water CCF converted to Therms Pavilion CCF Domestic Hot Water CCF converted to Therms Pool CCF Domestic Hot Water CCF converted to Therms Stadium CCF Domestic Hot Water CCF converted to Therms (i) In the baseline energy data the kWh and gas consumption for the County Admin Building is zero. The building was unoccupied and unconditioned during the baseline period. (ii) In the baseline energy data the County Admin Building hot water and chilled water was disconnected ("valved-off') from the Municipal Central Plant. The County Admin Building has a dedicated heating and cooling system at the building; this will be used for future operation. 3. Baselines and Projected Savings: Municipal Plant SCE Electric SCE Electric SCE Electric Natural Gas Natural Gas SCE Electric Import Export Export Usage Usage Projected Month Import Baseline Projected Baseline Projected Baseline Savings (kWh) Savings (kWh) Savings (Therms)l (Therms) kWh kWh Jan 332,256 304,103 -15,672 -14,227 75,709 8,112 Feb 777,048 94,177 0 0 10,304 -2,510 Mar 672,168 612,093 -336 -159 38,426 -25,704 Apr 821,824 753,042 0 116 6,535 -51,369 May 885,728 813,335 0 324 4,554 -57,004 Jun 791,144 721,557 0 0 28,680 -38,380 Jul 1,056,576 933,302 0 0 6,747 -69,510 Aug183,072 126,818 -8,048 -7,391 107,809 22,877 Sep 183,200 106,761 -11,296 -10,374 103,999 23,545 Oct 156,720 107,857 -23,032 -21,153 100,184 23,301 Nov 112,280 90,904 0 523 99,698 31,066 Dec 14,688 13,411 -96,888 -88,300 115,845 49,239 Totals 5,986,704 4,677,359 -155,272 -140,642 698,490 -86,337 Sunrise Plant SCE Electric SCE Electric SCE Electric Natural Gas Natural Gas SCE Electric Import Export Export Usage Usage Projected Month Import Baseline Projected Projected Baseline Baseline Savings (kWh) Savings (kWh) Savings (Therms) (Therms) kWh kWh Jan 0 -121,180 0 0 32,496 28,730 Feb 0 -168,363 0 0 33,453 28,331 Mar 176,359 -131,004 0 0 32,811 25,528 Apr 199,424 49,207 0 0 7,776 1,786 May 158,818 -15,260 0 0 16,887 10,499 Jun 11,819 -106,583 -131,964 -125,366 56,752 46,330 Jul 898 -138,448 -150,850 -143,308 59,877 46,401 Aug0 -194,282 0 0 49,250 37,318 Sep 0 -174,345 0 0 41,190 33,565 Oct 0 -158,400 0 0 33,235 30,021 Nov 0 -137,073 0 0 30,794 29,183 Dec 0 -140,530 0 0 27,846 26,390 Totals 547,318 -1,436,261 -282,814 -268,673 422,367 344,081 (c) The Irrigation/Water Management stipulated savings are not fully substantiated with engineering calculations as of the date hereof. While a 30% savings estimate is reasonable given the present state and operation of the system, some validation of the savings will be provided in the form of short term billing analysis for the 12 meters with the highest estimated water savings, as those meters represent approximately 50% of the projected water savings. If this validation shows that the actual savings will be significantly different than the stipulated savings, the Parties will discuss in good faith an appropriate adjustment of the stipulated savings. (d) Stipulated Savings: When the cost, complexity, or uncertainty of savings measurements are high as compared to the projected savings, the City and Contractor may agree to stipulate the projected Energy Unit Savings as being achieved,without any measurements being taken. 1. For the Stipulated Option, the Energy Unit Savings presented as stipulated in Table 4.1-1 above will be agreed to occur each year of each Measurement Period. During the Construction Period, the Energy Unit Savings will be calculated by adding the savings projected for the whole months between Substantial Completion or Beneficial Use of the EC Measure and the M&V Commencement Date. (e) Base Energy Rates: The Base Energy Rates are shown in Table 4.1-1, ECM M&V Option Matrix. The Base Energy Rates listed above in Table 4.1-1 are to be increased each year on a cumulative basis by four percent(4%)beginning on the first anniversary of the M&V Commencement Date and continuing on the first day of each Measurement Year thereafter. ARTICLE 5. TERMINATION OF ENERGY SERVICES CONTRACT AND SETTLEMENT OF COGENERATION FACILITY DISPUTE 5.01 Final Completion. As a condition precedent to this Agreement, Contractor warrants and represents that the entirety of the Work to be completed pursuant to the Energy Services Contract is fully complete in accordance with the Scope of Work contemplated by the Energy Services Contract. Accordingly, pursuant to Section 6.03 of the Energy Services Contract, Contractor has previously provided to City a written Certificate of Final Completion dated May 31, 2019, for the City's review and approval. Upon execution of this Agreement by both Parties, the City will execute and return the Certificate of Final Completion to Contractor, and the Scope of Work to be completed by Contractor pursuant to the Energy Services Contract shall be accepted. Contractor will furnish to City a Notice of Acceptance for its signature and recordation. 5.02 Release of Performance and Payment Bonds. Pursuant to Section 11.04(b) of the Energy Services Contract, the City agrees that (i) no sooner than thirty-five (35) calendar days after recordation of the Notice of Acceptance, and no later than sixty (60) calendar days after the City's payment of the Retainage pursuant to Section 2.02, in accordance with California Public Contract Code §§ 20104.50 and/or 7107, the payment bond will be released and all obligations arising thereunder shall be terminated provided no legally submitted stop notices or other actions have been filed with City concerning disputed payments; and (ii) within one (1) year after recordation of the Notice of Acceptance, the performance bond, less any amounts for warranty claims, will be released and all obligations arising thereunder shall be terminated. 5.03 Termination of Energy Services Agreement. Upon the Post-Construction Services Commencement Date, the Energy Services Contract will be terminated and of no further force and effect, and the terms and conditions of this Agreement shall supersede the terms and conditions of the Energy Services Contract. 5.04 Settlement and Release of Claims. In consideration for the full and timely performance of all terms and conditions of this Agreement, each of the Parties for themselves and each of its respective affiliated, subsidiary, and/or successor companies, and/or governing boards, and all of their respective owners, officers, directors, partners, joint venturers, principals, shareholders, members, heirs, spouses, children, students, employees, teachers, facility personnel, vendors, agents, servants, trustees, trustors, beneficiaries, predecessors, successors, executors, administrators, assigns, affiliates, creditors, buyers, sellers, transferees, transferors, insurers, sureties, attorneys, experts and consultants, (collectively "Related Parties"), do hereby covenant not to sue each other or each other's respective Related Parties and, do fully and finally settle, release, acquit, and forever discharge each other and each other's Respective Parties from any and all claims, demands, liabilities, obligations, liens, debts, or causes of action, including all claims for express indemnity or implied equitable indemnity, whether known or unknown to the Parties herein, including all past, present and future claims, demands or liens imposed by attorneys or insurers, for injuries or damages sustained by the Parties arising out of or relating in any way to the disputes covered by the Tolling Agreement ("Release") prior to the date hereof. 5.05 SECTION 1542 WAIVER Each Party understands it is possible, with regard to the claims released in Paragraph 5.02 above, by entering into this Agreement and the Release provided for herein, that unknown losses or claims exist or present losses may have been underestimated in amount or severity, and explicitly took that into account in determining the amount of consideration given in the making of this Agreement. Thus, with respect to such unknown claims or losses, each Party knowingly and voluntarily waives any and all rights under California Civil Code§ 1542,which provides: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY. It is hereby acknowledged and understood by the Parties that the foregoing waiver of California Civil Code section 1542 was separately bargained for, and shall be given full force and effect in accordance with each and all of the terms of this Agreement. Section 5.06 No Admission of Liability. The Parties acknowledge and agree that this Agreement shall not in any way be construed as an admission by either Party as to fault, or liability as to any other Party, person, or entity. This Agreement is solely for the compromise of disputed claims, and for the continuation of M&V and Support Services as provided herein for the Term of this Agreement. Section 5.07 Public Records Act Disclosure. In the event that the City receives a request to inspect or copy this Agreement, or any portion of this Agreement pursuant to California's Public Records Act, the City shall notify Contractor within ten (10) days following receipt of such request. The City and Contractor shall exercise good faith efforts to determine whether all or any portion of this Agreement may be exempt from disclosure pursuant to the Act. In the event the City and Contractor cannot agree as to the disclosability of any or all of this Agreement, Contractor shall be entitled to seek, at Contractor's sole cost and expense, a judicial determination as to the disclosability of this Agreement, or any portion thereof. ARTICLE 6. SUBCONTRACTORS Section 6.01 Authority to Subcontract. Contractor may delegate its duties and performance under this Agreement, and shall have the right to enter into agreements with any subcontractors and other service or material providers as Contractor shall select, with the approval of the City Manager, to perform the Work hereunder. Any subcontract between Contractor and a subcontractor must be consistent with the provisions of this Agreement. Contractor shall not be required to enter into any subcontracts with parties whom Contractor has not selected or subcontractors whom Contractor has objection to using. Section 6.02 Prompt Payment of Subcontractors. Contractor shall promptly pay, when due, all amounts payable for labor and materials furnished in the performance of this Agreement so as to prevent any lien or other claim under any provision of the law from arising against any City property, against Contractor's rights to payments hereunder, or against City. Section 6.03 Responsibility. Contractor shall, at all times, be responsible for the negligent acts, errors and/or omissions of its subcontractors and agents. Nothing in this Contract shall constitute any contractual relationship between any others and City or any obligation on the part of City to pay, or to be responsible for the payment of, any sums to any subcontractors. Contractor acknowledges and agrees that any agreement it may enter with any of its subcontractors who perform services for Contractor is an agreement solely between Contractor and its subcontractor. City will not have any liability whatsoever under any agreement Contractor enters into with any of its subcontractors who perform services or other work as may be required hereunder this Agreement. ARTICLE 7. WARRANTY/LIMITATION OF LIABILITY Section 7.01 Contractor warrants to City that material and equipment furnished under this Agreement will be of good quality and new, unless otherwise specifically required or permitted by this Agreement. Contractor 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 installed ("Contractor Warranty"). Section 7.02 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 installation; and thereafter, Contractor will have no liability for breach of any warranty or for any latent or patent defect of any kind pursuant to California Code of Civil Procedure§§337.15 and 338. Section 7.03 Equipment and material warranties that exceed the one (1) year Contractor Warranty period will be provided directly by the equipment and/or material manufacturers and such warranties will be assigned directly to City, after the one (1)year period. During the one (1) year Contractor Warranty period, Contractor will be City's agent in working with the equipment and material manufacturers in resolving any equipment or material warranty issues. Other than for lamps and ballasts, any material defects that are discovered within the one (1)year Contractor Warranty period, Contractor, or Contractor's subcontractors, will correct its defects, and/or Contractor will work with the equipment or material manufacturer as City's agent to facilitate the manufacturer's correction of the equipment or material defect. Such warranty services will be performed in a timely manner and at the reasonable convenience of City. If a warranty issue arises on any equipment or material installed after the one (1) year Contractor Warranty period, and the equipment or material has a warranty period that exceeds one (1) year, Contractor will contact the manufacturer directly to resolve such warranty issues and City acknowledges that the manufacturer will have sole responsibility for such issues. Section 7.04 The warranties in this ARTICLE 7 expressly exclude any remedy for damage or defect caused by improper or inadequate maintenance of the installed equipment by service providers other than Contractor or its subcontractors, corrosion, erosion, deterioration, abuse, modifications or repairs not performed by an authorized subcontractor, improper use or operation, or normal wear and tear under normal usage. EXCEPT FOR THE WARRANTIES PROVIDED IN THIS ARTICLE 7, CONTRACTOR MAKES NO OTHER WARRANTIES IN CONNECTION WITH THE WORK PROVIDED UNDER THIS CONTRACT,WHETHER EXPRESS OR IMPLIED IN LAW, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY IMPLIED WARRANTIES AGAINST INTELLECTUAL PROPERTY INFRINGEMENT. CITY WILL HAVE NO REMEDIES AGAINST EITHER CONTRACTOR OR ANY SUBCONTRACTOR OR VENDOR FOR ANY DEFECTIVE WORK INSTALLED EXCEPT FOR THE REPAIR OR REPLACEMENT OF SUCH EQUIPMENT IN ACCORDANCE WITH THE WARRANTIES INDICATED ABOVE. SPECIFICALLY, NEITHER CONTRACTOR, NOR CONTRACTOR'S SUBCONTRACTORS OR VENDORS, WILL BE LIABLE TO CITY FOR LOSS OF PROFITS OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY. ARTICLE 8. INSURANCE Section 8.01 Types of Insurance. Contractor shall procure and maintain, at its sole cost and expense, the insurance described below. The insurance shall be for the duration of this Agreement and includes any extensions, unless otherwise specified in this Agreement. The insurance shall be procured in a form and content satisfactory to City. The insurance shall apply against claims which may arise from the Contractor's performance of Work under this Agreement, including Contractor's agents, representatives, or employees. In the event the City Manager determines that services to be performed under this Agreement creates an increased or decreased risk of loss to the City, Contractor agrees that the minimum limits of the insurance policies may be changed accordingly upon receipt of written notice from the City Manager or his designee. Contractor shall immediately substitute any insurer whose A.M. Best rating drops below the levels specified in this Agreement. All insurance provided under this Agreement shall be on an occurrence basis. The minimum amount of insurance required shall be as follows: A. Workers' Compensation Insurance. Contractor shall obtain and maintain, in full force and effect throughout the term of this Agreement, workers' compensation insurance in at least the minimum statutory amounts, and in compliance with all other statutory requirements, as required by the State of California. Contractor agrees to waive and obtain endorsements from its workers' compensation insurer waiving subrogation rights under its workers' compensation insurance policy against the City and to require each of its subcontractors, if any,to do likewise under their workers'compensation insurance policies. B. Commercial General Liability Insurance. Contractor shall obtain and maintain, in full force and effect throughout the term of this Agreement, a policy of commercial general liability insurance written on a per occurrence basis with a combined single limit of at least one million dollars ($1,000,000.00) and two million dollars ($2,000,000.00) general aggregate for bodily injury and property damage including coverages for contractual liability, personal injury, independent contractors, broad form property damage, products and completed operations. C. Business Automobile Insurance. Contractor shall obtain and maintain, in full force and effect throughout the term of this Agreement, a policy of business automobile liability insurance written on a per occurrence basis with a single limit liability in the amount of one million dollars ($1,000,000.00) bodily injury and property damage. The policy shall include coverage for owned, non-owned, leased, and hired cars. D. Employer Liability Insurance. Contractor shall obtain and maintain, in full force and effect throughout the term of this Agreement, a policy of employer liability insurance written on a per occurrence basis with a policy limit of at least one million dollars($1,000,000.00)for bodily injury or disease. Section 8.02 Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City Manager or his/her designee prior to commencing any work or services under this Agreement. Contractor guarantees payment of all deductibles and self-insured retentions. City reserves the right to reject deductibles or self-insured retentions in excess of$10,000, and the City Manager or his/her designee may require evidence of pending claims and claims history as well as evidence of Contractor's ability to pay claims for all deductible amounts and self-insured retentions proposed in excess of$10,000. Section 8.03 Other Insurance Requirements. The following provisions shall apply to the insurance policies required of Contractor under this Agreement: 8.03(i) For any claims related to this Agreement, Contractor's coverage shall be primary insurance with respect to the City and its officers, council members, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by the City and its officers, council members, officials, employees, agents, and volunteers shall be in excess of Contractor's insurance and shall not contribute with it. 8.03(ii) Any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to City and its officers, council members, officials,employees, agents, and volunteers. 8.03(iii) All insurance coverage and limits provided by Contractor and available or applicable to this Agreement are intended to apply to each insured, including additional insureds, against whom a claim is made or suit is brought to the full extent of the policies. Nothing contained in this Agreement or any other agreement relating to the City or its operations shall limit the application of such insurance coverage. 8.03(iv) No required insurance coverages may include any limiting endorsement which substantially impairs the coverages set forth in this Agreement (e.g., elimination of contractual liability or reduction of discovery period), unless the endorsement has first been submitted to the City Manager and approved in writing. 8.03(v) Contractor agrees to require its insurer to modify insurance endorsements to delete any exculpatory wording stating that failure of the insurer to mail written notice of cancellation imposes no obligation, or that any party will "endeavor" (as opposed to being required) to comply with the requirements of the endorsements. Certificates of insurance will not be accepted in lieu of required endorsements, and submittal of certificates without required endorsements may delay commencement of the services. It is Contractor's obligation to ensure timely compliance with all insurance submittal requirements as provided in this Agreement. 8.03(vi) Contractor agrees to ensure that subcontractors, and any other parties involved with the services provided to City pursuant to this Agreement, provide the same minimum insurance coverage required of Contractor. Contractor agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. Contractor agrees that upon request, all agreements with subcontractors and others engaged by Contractor will be submitted to the City for review. 8.03(vii) Contractor acknowledges and agrees that any actual or alleged failure on the part of the City to inform Contractor of non-compliance with any insurance requirement in no way imposes any additional obligations on the City nor does it waive any rights in this or any other regard. 8.03(viii) Contractor shall provide proof that policies of insurance required in this Agreement, expiring during the term of this Agreement, have been renewed or replaced with other policies providing at least the same coverage. Proof that such coverage has been ordered shall be submitted prior to expiration. Endorsements as required in this Agreement applicable to the renewing or new coverage shall be provided to City no later than ten (10) days prior to expiration of the lapsing coverage. 8.03(ix) Requirements of specific insurance coverage features or limits contained in this section are not intended as limitations on coverage, limits, or other requirements, or as a waiver of any coverage normally provided by any given policy. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue, and is not intended by any party or insured to be limiting or all-inclusive. 8.03(x) The requirements in this section supersede all other sections and provisions of this Agreement to the extent that any other section or provision conflicts with or impair the provisions of this section. 8.03(xi) Contractor agrees to provide immediate notice to City of any claim or loss against Contractor arising out of the services performed under this Agreement and for any other claim or loss which may reduce the insurance available to pay claims arising out of this Agreement. City assumes no obligation or liability by such notice, but has the right(but not the duty)to monitor the handling of any such claim or claims if they are likely to involve City, or to reduce or dilute insurance available for payment of potential claims. 8.03(xii) Contractor agrees that the provisions of this section shall not be construed as limiting in any way the extent to which Contractor may be held responsible for the payment of damages resulting from Contractor's activities or the activities of any person or person for which Contractor is otherwise responsible. Section 8.04 Sufficiency of Insurers. Insurance required in this Agreement shall be provided by authorized insurers in good standing with the State of California. Coverage shall be provided by insurers admitted in the State of California with an A.M. Best's Key Rating of B++, Class VII, or better, unless such requirements are waived in writing by the City Manager or his designee due to unique circumstances. Section 8.05 Verification of Coverage. Contractor shall furnish City with both certificates of insurance and endorsements, including additional insured endorsements, affecting all of the coverages required by this Agreement. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All proof of insurance is to be received and approved by the City before work commences. City reserves the right to require Contractor's insurers to provide complete, certified copies of all required insurance policies at any time. Additional insured endorsements are not required for Workers' Compensation policies. Verification of Insurance coverage may be provided by: (1) an approved General and/or Auto Liability Endorsement Form for the City of Palm Springs or (2) an acceptable Certificate of Liability Insurance Coverage with an approved Additional Insured Endorsement with the following endorsements stated on the certificate: 1. "The City of Palm Springs, its officials, employees, and agents are named as an additional insured..." ("as respects City of Palm Springs Contract No._"or "for any and all work performed with the City"may be included in this statement). 2. "This insurance is primary and non-contributory over any insurance or self-insurance the City may have..." ("as respects City of Palm Springs Contract No.—.. or"for any and all work performed with the City' may be included in this statement). 3. "Should any of the above described policies be canceled before the expiration date thereof, the issuing company will mail 30 days written notice to the Certificate Holder named."Language such as, "endeavor to"mail and"but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representative"is not acceptable and must be crossed out. 4. Both the Workers' Compensation and Employers' Liability policies shall contain the insurer's waiver of subrogation in favor of City, its elected officials, officers,employees, agents, and volunteers. In addition to the endorsements listed above, the City of Palm Springs shall be named the certificate holder on the policies. All certificates of insurance and endorsements are to be received and approved by the City before work commences. All certificates of insurance must be authorized by a person with authority to bind coverage, whether that is the authorized agent/broker or insurance underwriter. Failure to obtain the required documents prior to the commencement of work shall not waive the Contractor's obligation to provide them. ARTICLE 9. INDEMNIFICATION Section 9.01 Indemnification and Reimbursement. To the fullest extent permitted by law, Contractor shall defend (at Contractor's sole cost and expense), indemnify, protect, and hold harmless City, its elected officials, officers, employees, agents, and volunteers (collectively the "Indemnified Parties"), from and against any and all liabilities, actions, suits, claims, demands, losses, costs,judgments, arbitration awards, settlements, damages, demands, orders, penalties, and expenses including legal costs and attorney fees (collectively"Claims"), including but not limited to Claims arising from injuries to or death of persons (Contractor's employees included), for damage to property, including property owned by City, from any violation of any federal, state, or local law or ordinance, and from errors and omissions committed by Contractor, its officers, employees, representatives, and agents, that arise out of or relate to Contractor's performance under this Agreement. This indemnification clause excludes Claims arising from the sole negligence or willful misconduct of the City, its elected officials, officers, employees, agents, and volunteers. Under no circumstances shall the insurance requirements and limits set forth in this Agreement be construed to limit Contractor's indemnification obligation or other liability under this Agreement. Contractor's indemnification obligation shall survive the expiration or earlier termination of this Agreement until all actions against the Indemnified Parties for such matters indemnified are fully and finally barred by the applicable statute of limitations or, if an action is timely filed, until such action is final. This provision is intended for the benefit of third party Indemnified Parties not otherwise a party to this Agreement. ARTICLE 10. REPORTS AND RECORDS Section 10.01 Accounting Records. Contractor shall keep complete, accurate, and detailed accounts of all time, costs, expenses, and expenditures pertaining in any way to this Agreement. Contractor shall keep such books and records as shall be necessary to properly perform the Services required by this Agreement and to enable the City Manager, or designee, to evaluate the performance of such Services. The City Manager, or designee, shall have full and free access to such books and records at all reasonable times, including the right to inspect, copy, audit, and make records and transcripts from such records. Section 10.02 Reports. Contractor shall periodically prepare and submit to the City Manager such reports concerning the performance of the Services required by this Agreement, or as the City Manager shall reasonably require. Contractor acknowledges that the City is greatly concerned about the cost of the Work and Services to be performed under this Agreement. For this reason, Contractor agrees that Contractor shall promptly notify the City Manager the estimated increased or decreased cost if Contractor becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the contemplated Work or Services. Section 10.03 Ownership of Documents. (a) Ownership: Except as expressly provided herein, City shall not, by virtue of this Agreement, acquire any rights or interest in any formulas, patterns, devices, software, inventions or processes, copyrights, patents, trade secrets, other intellectual property rights, or similar items of property which are or may be used in connection with the Work. Contractor shall own all inventions, improvements, technical data, models, processes, methods, and information and all other work products developed or used in connection with the Work under this Agreement, including all intellectual property rights therein. (b) License: Solely in connection with the Facilities, Contractor grants to City a limited, perpetual, royalty-free, non- transferrable license for any Contractor intellectual property rights necessary for City to operate, maintain, and repair any modifications or additions to Facilities, or equipment delivered, as a result of the Work. (c) Ownership and Use of Instruments of Service. All work, services, data, reports, proposals, plans, specifications, flow sheets, drawings, and products of the Work(the"Instruments of Service")furnished directly or indirectly, in writing or otherwise, to City by Contractor under this Agreement will remain Contractor's property and will be used only in connection with work or services performed by Contractor. Contractor will be deemed the author and owner of such Instruments of Service and will retain all common law, statutory and other reserved rights, including copyrights. The Instruments of Service may not be used by City for future additions or alterations to the Project or for other projects, without the prior written agreement of Contractor. Any unauthorized use of the Instruments of Service will be at City's sole risk and without liability to Contractor. If City uses the Instruments of Service for implementation purposes, including additions to or completion of the Project, without the written permission of Contractor, City agrees to waive and release, and indemnify and hold harmless, Contractor, its subcontractors, and their directors, employees, subcontractors, and agents from any and all losses associated with or resulting from such use. Section 10.04 Release of Documents. All drawings, specifications, reports, records, documents, and other materials prepared by Contractor in the performance of services under this Agreement shall not be released publicly without the prior written approval of the City Manager. All information gained by Contractor in the performance of this Agreement shall be considered confidential and shall not be released by Contractor without City's prior written authorization. Section 10.05 Audit and Inspection of Records. After receipt of reasonable notice and during the regular business hours of City, and to the extent the applicable services were not provided on a fixed price, lump sum basis, Contractor shall provide City, or other agents of City, such access to Contractor's books, records, payroll documents, and facilities as City reasonably deems necessary to examine, copy, audit, and inspect all accounting books, records, work data, documents, and activities directly related to Contractor's performance under this Agreement. Contractor shall maintain such books, records, data, and documents in accordance with generally accepted accounting principles and shall clearly identify and make such items readily accessible to such parties during the term of this Agreement and for a period of three(3)years from the date of final payment by City hereunder. ARTICLE 11. ENFORCEMENT OF AGREEMENT Section 11.01 California Law and Venue. This Agreement shall be construed and interpreted both as to validity and as to performance of the Parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim, or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such County, and Contractor covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. Section 11.02 Interpretation. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the Parties. The terms of this Agreement are contractual and the result of negotiation between the Parties.Accordingly, any rule of construction of contracts(including, without limitation, California Civil Code Section 1654)that ambiguities are to be construed against the drafting party, shall not be employed in the interpretation of this Agreement. The caption headings of the various sections and paragraphs of this Agreement are for convenience and identification purposes only and shall not be deemed to limit, expand, or define the contents of the respective sections or paragraphs. Section 11.03 Default of Contractor. Contractor's failure to comply with any provision of this Agreement shall constitute a default. A. If the City Manager, or his designee, determines that Contractor is in default in the performance of any of the terms or conditions of this Agreement, he/she shall notify Contractor in writing of such default. Contractor shall have ten (10) days, or such longer period as may be reasonably necessary, to cure the default by rendering satisfactory performance. In the event Contractor fails to cure its default within such period of time, City shall have the right, notwithstanding any other provision of this Agreement, to terminate this Agreement without further notice and without prejudice of any remedy to which City may be entitled at law, in equity, or under this Agreement. Contractor shall be liable for all reasonable costs incurred by City as a result of such default. Compliance with the provisions of this section shall not constitute a waiver of any City right to take legal action in the event that the dispute is not cured, provided that nothing shall limit City's right to terminate this Agreement without cause under Section 2.06 or Section 2.07. B. If termination is due to the failure of the Contractor to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 8.3A, take over the work and prosecute the same to completion by contract or otherwise. Contractor shall be liable to the extent that the total cost for completion of the Services required hereunder exceeds the Maximum Contract Amount identified in Section 2.01 (provided that the City shall use reasonable efforts to mitigate such damages). The City may withhold any payments to the Contractor for the purpose of set-off or partial payment of the amounts owed the City as previously stated. The withholding or failure to withhold payments to Contractor shall not limit Contractor's liability for completion of the Services as provided in this Agreement. Section 11.04 Waiver. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the Party against whom enforcement of a waiver is sought. Any waiver by the Parties of any default or breach of any covenant, condition, or term contained in this Agreement, shall not be construed to be a waiver of any subsequent or other default or breach, nor shall failure by the Parties to require exact, full, and complete compliance with any of the covenants, conditions, or terms contained in this Agreement be construed as changing the terms of this Agreement in any manner or preventing the Parties from enforcing the full provisions. Section 11.05 Rights and Remedies Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it,at the same or different times, of any other rights or remedies for the same default or any other default by the other Party. Section 11.06 Legal Action. In addition to any other rights or remedies, either Party may take legal action, in law or in equity, to cure, correct, remedy or recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. Section 11.07 Attorney Fees. In the event any dispute between the Parties with respect to this Agreement results in litigation or any non-judicial proceeding, the prevailing Party shall be entitled, in addition to such other relief as may be granted, to recover from the non-prevailing Party all reasonable costs and expenses. These include but are not limited to reasonable attorney fees, expert contractor fees, court costs and all fees, costs, and expenses incurred in any appeal or in collection of any judgment entered in such proceeding. To the extent authorized by law, in the event of a dismissal by the plaintiff or petitioner of the litigation or non-judicial proceeding within thirty (30) days of the date set for trial or hearing, the other Party shall be deemed to be the prevailing Party in such litigation or proceeding. ARTICLE 12. LIMITATION OF LIABILITY The liability of a defaulting Party will be limited to direct, actual damages. Except as otherwise expressly set forth herein, 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 (other than the guaranteed savings as set forth in Article 4 of this Agreement). ARTICLE 13. FORCE MAJEURE The performance of the Services rendered under this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Contractor (financial inability excepted). Contractor shall notify the City Manager in writing of the causes of the delay. Unforeseeable causes include, but are not limited to, acts of God or of the public enemy, vandalism, labor or material shortages or unusual delays in delivery of equipment, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, similar cataclysmic occurrence, and/or acts of any governmental agency, including the City, a permitting agency or the local utility. Such circumstance will not constitute an Event of Default, and Contractor will be excused from performance hereunder and will not be liable to the City for or on account of any loss, damage, injury or expense resulting from, or arising out of, such delay or prevention of performance. In no event shall Contractor be entitled to recover damages against the City for any delay in the performance of this Agreement, however caused, Contractor's sole remedy being extension of the Agreement under this section. ARTICLE 14. ALTERNATIVE DISPUTE RESOLUTION If a dispute arises out of or relates to this Agreement, or the services contemplated by this Agreement(a"Dispute"), in the alternative of proceeding with legal action pursuant to Section 11.06 herein, either Party may, but is not required to, initiate the alternative dispute resolution process set forth in this ARTICLE 1414 by giving written notice to the other Party. Designated representatives for the Parties who have authority to settle the dispute and who are at a higher level of management than the persons with direct responsibility for administration of this Agreement, (the "senior executives"), will schedule and hold a senior management conference 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 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 through Judicial Arbitration and Mediation Services ("JAMS"), pursuant to their rules. Mediation is a condition precedent to non-binding arbitration. Once one Party files a request for mediation with the other Party and with JAMS, 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 resolution of the Dispute may proceed to non-binding arbitration. Either Party may initiate non-binding arbitration proceedings by giving written notice to the other Party and to JAMS. The following provisions apply to all non- binding arbitration proceedings pursuant to this ARTICLE 14: (i) the place of non-binding arbitration will be the JAMS office located in Ontario, California, or such other JAMS office closest to Palm Springs, California; (ii)one arbitrator will conduct the arbitral proceedings in accordance with JAMS's Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules, 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, and (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. ARTICLE 15. CITY OFFICERS AND EMPLOYEES; NON-DISCRIMINATION Section 15.01 Non-liability of City Officers and Employees. No officer or employee of the City shall be personally liable to the Contractor, or any successor-in-interest, in the event of any default or breach by the City or for any amount which may become due to the Contractor or to its successor, or for breach of any obligation of the terms of this Agreement. Section 15.02 Conflict of Interest. Contractor acknowledges that no officer or employee of the City has or shall have any direct or indirect financial interest in this Agreement nor shall Contractor enter into any agreement of any kind with any such officer or employee during the term of this Agreement and for one year thereafter. Contractor warrants that Contractor has not paid or given, and will not pay or give, any third party any money or other consideration in exchange for obtaining this Agreement. Section 15.03 Covenant Against Discrimination. In connection with its performance under this Agreement, Contractor shall not discriminate against any employee or applicant for employment because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin (i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition (each a "prohibited basis"). Contractor shall ensure that applicants are employed, and that employees are treated during their employment,without regard to any prohibited basis. As a condition precedent to City's lawful capacity to enter this Agreement, and in executing this Agreement, Contractor certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any Contractor activity, including but not limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship; and further, that Contractor is in full compliance with the provisions of Palm Springs Municipal Code Section 7.09.040, including without limitation the provision of benefits, relating to non-discrimination in city contracting. ARTICLE 16. MISCELLANEOUS PROVISIONS Section 16.01 Patent and Copyright Infringement. To the fullest extent permissible under law, and in lieu of any other warranty by City or Contractor against patent or copyright infringement, statutory or otherwise: A. It is agreed that Contractor shall defend at its expense any claim or suit against City on account of any allegation that any item furnished under this Agreement, or the normal use or sale arising out of the performance of this Agreement, infringes upon any presently existing U.S. letters patent or copyright and Contractor shall pay all costs and damages finally awarded in any such suit or claim, provided that Contractor is promptly notified in writing of the suit or claim and given authority, information and assistance at Contractor's expense for the defense of same, and provided such suit or claim arises out of, pertains to, or is related to the negligence, recklessness or willful misconduct of Contractor. However, Contractor will not indemnify City if the suit or claim results from: (1) City's alteration of a deliverable, such that City's alteration of such deliverable created the infringement upon any presently existing U.S. letters patent or copyright; or(2) the use of a deliverable in combination with other material not provided by Contractor when it is such use in combination which infringes upon an existing U.S. letters patent or copyright. B. Contractor shall have sole control of the defense of any such claim or suit and all negotiations for settlement in the event City fails to cooperate in the defense of any suit or claim, provided, however, that such defense shall be at Contractor's expense. Contractor shall not be obligated to indemnify City under any settlement that is made without Contractor's consent, which shall not be unreasonably withheld. If the use or sale of such item is enjoined as a result of the suit or claim, Contractor, at no expense to City, shall obtain for City the right to use and sell the item, or shall substitute an equivalent item acceptable to City and extend this patent and copyright indemnity thereto. Section 16.02 Notice. Any notice, demand, request, consent, approval, or communication that either party desires, or is required to give to the other party or any other person shall be in writing. All notices shall be personally delivered, sent by pre-paid First Class U.S. Mail, registered or certified mail, postage prepaid, return receipt requested, or delivered or sent by facsimile with attached evidence of completed transmission. All notices shall be deemed received upon the earlier of(i)the date of delivery to the address of the person to receive such notice if delivered personally or by messenger or overnight courier; (ii) five (5) business days after the date of posting by the United States Post Office if by mail;or(iii)when sent if given by facsimile. Any notice, request, demand, direction, or other communication sent by facsimile must be confirmed within forty-eight(48) hours by letter mailed or delivered. Other forms of electronic transmission such as e-mails, text messages, and instant messages are not acceptable manners of notice required hereunder. Notices or other communications shall be addressed as follows: TO ENGIE SERVICES U.S.: ENGIE Services U.S. 12980 Foster Street, Suite 400 Overland Park, KS 66213 Attention: Marilyn Cerra With a COPY TO: ENGIE Services U.S. 500 12t'Street, Suite 300 Oakland, CA 94607 Tel: 415,735.9103 Attention: Contract Administrator TO CITY: City of Palm Springs 3200 Tahquitz Canyon Way Palm Springs, CA 92263-2743 Tel: 760.323.8350 Attention: City Manager Section 16.03 Integrated Agreement. This Agreement constitutes the entire agreement between the Parties and supersedes all prior negotiations, arrangements, agreements, representations, and understandings, if any, made by or among the Parties with respect to the subject matter in this Agreement. Section 16.04 Amendment. No amendments or other modifications of this Agreement shall be binding unless through written agreement by all Parties. Section 16.05 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. If any provision of this Agreement shall be determined to be invalid by a final judgment or decree of a court of competent jurisdiction, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the reminder of that provision, or the remaining provisions of this Agreement unless the invalid provision is so material that its invalidity deprives either Party of the basic benefit of their bargain or renders this Agreement meaningless. Section 16.06 Successors in Interest. This Agreement shall be binding upon and inure to the benefit of the Parties'successors and assignees. Section 16.07 Third Party Beneficiary. Except as may be expressly provided for in this Agreement, nothing contained in this Agreement is intended to confer, nor shall this Agreement be construed as conferring, any rights, including, without limitation, any rights as a third-party beneficiary or otherwise, upon any entity or person not a party to this Agreement. Section 16.08 Recitals. The above-referenced Recitals are hereby incorporated into the Agreement as though fully set forth in this Agreement and each Party acknowledges and agrees that such Party is bound, for purposes of this Agreement, by the same. Section 16.09 Corporate Authority. Each of the undersigned represents and warrants that(i)the Party for which he or she is executing this Agreement is duly authorized and existing, (ii) he or she is duly authorized to execute and deliver this Agreement on behalf of the Party for which he or she is signing, (iii) by so executing this Agreement, the Party for which he or she is signing is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which the Party for which he or she is signing is bound. Section 16.10 Counterparts. This Agreement may be executed in counterpart (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which taken together shall constitute a single contract. END OF AGREEMENT SIGNATURES ON NEXT PAGE 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. CITY OF PALM SPRINGS,CALIFORNIA APPROVED BY THE CITY COUNCIL: By Date David H. Ready City Manager �D Agreement No. ATTEST APPROVED By CITY COUNCIL By An Mejia, C /111 Cler APPROVED AS TO FORM: By effre S allinger, City Attorney RE MMENDED: Bey4 Marcu , P.E., P.L.S. Assistant City Manager/City Engineer Post Construction Services Agreement City of Palm Springs and ENGIE Services U.S. CONTRACTOR By ENGIE Services U.S. Inc., a Delaware corporation Firm/Company Name By: — Signature ( tarized) Signatur (notarized) Nam 1-iA'PHAN kow+.i Name: Gl-l�`�C) Title: ,ct ZQ1Z DENT Title: A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy or validity of that document. (This Agreement must be signed in the above (This Agreement must be signed in the above space by one having authority to bind the space by one having authority to bind the Contractor to the terms of the Agreement.) Contractor to the terms of the Agreement.) State of ) State of ) County of )ss County of )ss On On before me, before me, personally appeared personally appeared who proved to me on the basis of satisfactory who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and is/are subscribed to the within instrument and acknowledged to me that he/she/they executed acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the of which the person(s) acted, executed the instrument. instrument. I certify under PENALTY OF PERJURY under the I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing laws of the State of California that the foregoing paragraph is true and correct. paragraph is true and correct. WITNESS my hand and official seal. WITNESS my hand and official seal. Notary Signature: Notary Signature: Notary Seal: Notary Seal: CALIFORNIA CERTIFICATE OF ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document. State of California ) County of On)9M%( '/Ilyni, 101C1 before 1 me, ( I�l "b C' ' \ � (here insert name and title of the offi er) personally appeared who proved to me on the basis of satisfactory evidence to be the person(9)whose name(O is/art subscribed to the within instrument and acknowledged to me that he/shp/thk6y executed the same in his/her/tl-kr authorized capacity( 7, and that by his/her/their signatures) on the instrument the person(s), or the entity upon behalf of which the person(sl acted,executed the instrument. I certify under PENALTY OF PERJURY under the laws of the } State of California that the foregoing paragraph is true and correct. T REGINA MARIE PADILLA V 39482 NOTARYP B C21CALIFORNIAL� WITNESS my hand and official seal. LOS ANGELES COUNTY 0 COMM.EXPIRES JAN.8,2020- Signature (Seal) Although the information in this section is not required by law,it could prevent fraudulent removal and reattachment of this acknowledgment to an unauthorized document and may prove useful to persons relying on the attached document. Description of Attached DocumentAdditional Information The preceding Certificate of Acknowledgment is attached to a document Method of Signer Identification titled/for the purpose of� u( 'S� {V�(,eS ,f{� Proved to me on the basis of satisfactory evidence: Q form(s)of identification Q credible witnesses) Notarial event is detailed in notary journal on: containing pages,and dated�� �3� , wL� Page# Entry# The signer(s)capacity or authority is/are as: Notary contact: ❑ Individual(s) Other ❑ Attorney-in-Fact ( ❑ AdditionalSigner(s) ❑ Signer(s)Thumbprint(s) '4J Corporate Officer(s) V rule( A,, ❑ ❑ Guardian/Conservator ❑ Partner-Limited/General ❑Trustee(s) ❑ Other: representing: VtvU J� v Name(s)of Person(s)or Entity0es)Signer is Representing 0 Copyright 2007.2016 Notary Rotary,Inc.PO Box 41400,Des Moines,IA 50311-0507. All Rights Reserved. Item Number 101772. Please contact your Authorized Reseller to purchase copies of this form. CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document. State of California County of �01 > q Q On s before me, 1, I ct G 1-I G ►'� C�r' Y>P N�}'�t ►',�/ �1J Vl iJ� I r Date Here Insert Name on Titled the Officer I G personally appeared P(2 y ���he e_ f \lJ)Y) O Nome(s) of Signers) �"- G 4t0 - - , C . who proved to me on the basis of satisfactory evident to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the LINDA MARIE HANGARTNER laws of the State of California that the foregoing COMMISSION#2235185 paragraph is true and correct. 4 � NOTARY PUBLIC-CALIFORNIA W 7. COMMISDSION EXPIRES OUNTY - My WITNESS my hand and official seal. MARCH 22 2022 Signat Place Notary Seal and/or Stamp Above Signa ure of Notary Public - OPTIONAL Completing this information can deter alteration of the document or fraudulent reattachment of this form to on unintended document. Description of Attached Document L Title or Type of Document:�6S �'��I 1''jcAro n 15- y cG S Document Date: ✓- Numberof Pages:- Signer(s) Other Than Named Above: Capacity(ies) Cla• ed by Signer(s) Signer's Name: t� v) Signer's Name: Corporate Officer — Title(s): 0netco Corporate Officer — Title(s): ❑ Partner — ElLimited ElGeneral ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian of Conservator ❑ Trustee ❑ Guardian of Conservator ❑ Other: ❑ Other: Signer is Representin Signer is Representing: 02017 National Notary Association ATTACHMENT A PROJECT LOCATIONS Area Sq] ECML1,A, M2-A: M2-B: ECM W1: Location t C B,11-2: Mun c 6 .. Sunrise Plant Irrigation • �, Plant Cog n t Municipal Plant 402,085 Airport-All facilities 236,098 x x Airport Fire Station#2 19,609 x x City Hall 31,963 x x x City Yard 43,780 x x x Police Dept&Training Center 53,680 x x Sunrise Plant 87,883 Leisure Center 15,155 x x Main Library 33,920 x x Pavilion 20,200 x x Pool 39,248 x x Stadium 16,906 x x All Other City Facilities 544,096 Baristo Park n/a x Convention Center 264,479 x x Desert Arts Center 5,073 x Desert Highland Park n/a x Desert Wellness Park n/a x Demuth Park 4,774 x x Downtown Parking Structure 124,251 x Downtown/Palm Canyon Dr n/a x Everybody's Village 13,199 x Francis Stevens Park n/a x Fire Station#1 5,364 x Fire Station#3 5,807 x Fire Station#4 4,608 x Jaycee Frey(Shelter) 3,617 x Palm Springs Boxing Club 2,095 x Palm Canyon Theater 15,100 x Ruth Hardy Park 684 x Sunrise Park n/a x Tahquitz Creek Golf Course 26,210 x Taxi Holding Building 1,990 x Train Station 1,483 x Victoria Park 684 x Wastewater Treat Plant Admin. 5,467 x YMCA 21,431 x Misc.Medians and Roads n/a x x ATTACHMENT B COVERED EQUIPMENT QTY ITEM DECRIPTION 2 PHWP 1 &2 HIGH TEMPERATURE HOT WATER PUMPS 1 PHWP 1 & 2 CONTROLLER VFD/STARTER PUMP CONTROL 2 PHWP 3 &4 LOW TEMPERTURE HOT WATER PUMP 1 PHWP 3 &4 CONTROLLER VFD/STARTER PUMP CONTROL 2 HX 1&2 HEAT EXCHANGERS PRIMARY HOT WATER SIDE ONLY 1 PRIMARY HOT WATER LOOP CHEMICAL CHEMICAL TREATMENT EQUIPMENT AND CHEMICALS FOR TREATMENT PRIMARY HOT WATER LOOP ONLY—CITY COVERS SECONDARY SIDE 1 Engine oil DELIVERY, INSTALLATION, REMOVAL, DISPOSAL—CITY TO OBTAIN EPA WASTE GENERATOR NUMBER. CITY TO PAY FOR DISPOSAL OF STOCKPILED WASTE OIL AS OF CONTRACT DATE. 1 EG-1 COGENERATION ENGINE 1 DIANE PANEL CONTROLLER FOR ENGINE OPERATION/SOFTWARE 1 PLC(CP-1) &ALL ASSOCIATED ENGINE INTERFACE FOR DIANE CONTROLLER/PLC SOFTWARE ONLY RELATED SENSORS &ACTUATORS 1 CB (LOCATED IN GMS 480V PANEL) TRANSFER INTERLOCK CIRCUIT BREAKER FOR ENGINE 1 SCR CONTROLLER CONTROLLER FOR EMISSIONS 3 SCR CATALYSTS SCR CATALYSTS/LOCATED IN MEZZANINE 3 OXIDATION CATALYSTS OXIDATION CATALYSTS/LOCATED IN MEZZANINE 1 EMISSIONS CONTINUOUS REPORTING DEVICE FOR ENGINE EMISSION MONITORING SYSTEM (CMS) 3 GAS CYCLINDERS CALIBRATION GAS FOR CMS CONTROLLER 1 UREA REACTANT UREA FOR EMISSION REDUCTION 2 UREA PUMPS TRANSFER DEVICE FOR UREA(REACTANT BOOSTER PUMPS) 1 UREA PUMP CONTROLLER REACTANT CONTROL 1 CV-20 CONTROL VALVE 1 CV-14 CONTROL VALVE 1 CV-15 WAX VALVE 1 CV-17 CONTROL VALVE 1 ENERGENIUS BATTERY CHARGER I ❑ ❑ ❑ ❑ m cs efn su.un as vse) Am � y w F m�ur \ ([)12 LC(NO[) R1 sRv151pR.Ot O SCR[OH.OYF �Ap Y (RLOCM M swn, lue-tol7.M BYt RpF dlro0[ �� -R me w 1 — u oc-' '���' RKt SR'EY Li rp(,R. m m*, is [ o m•l -- m wcTPM INon�u~ w,N 1 V `S a — _ m*•ncsl D0 / qf+ ' CC,1 TOWER YARC .Z1 D oe LL S MR} ax s. i -- --- — ea.smsa[D sR IN , - e Iml ow-2 e � I' I , ,F.�i1i—dJl I I -- I ATTACHMENT C STANDARDS OF OCCUPANCY AND CONTROL The following standards are a guideline used to evaluate the energy conservation measures in this program. It is understood that existing and installed equipment may not allow for exact times and temperatures to be met, but every effort will be made to meet the below standards as closely as the equipment allows. Existing Proposed Occupied Heating Cooling Occupied Heating Cooling Building/ HVAC Occupied/ Occupied/ HVAC Occupied/ Occupied/ Area Served Schedule Unoccupied Unoccupied Schedule Unoccupied Unoccupied Temperature Temperature Temperatures Temperatures Mon-Fri: 24 Mon-Fri: 24 Airport hrs/day 72' 74' hrs/day 72' 74' Sat-Sun: 24 Sat-Sun: 24 hrs/da hrs/da Mon-Fri: 24 Mon-Fri: 07:00 Airport Fire hrs/day 68' 74' - 18:00 68°/55° 74°/85° Station(MZ-1) Sat-Sun: 24 Sat-Sun: Off hrs/da Mon-Fri: 24 Mon-Fri: 24 Airport Fire hrs/day 68° 74* hrs/day 68' 74' Station(MZ-2) Sat-Sun:24 Sat-Sun: 24 hrs ay hrs/da Mon-Fri: 07:00- Mon-Fri: 07:00 City Hall 19:00 68' 74' - 19:00 68°/55° 74°/85° Sat/Sun: Off Sat/Sun: Off Wed: 17:00- Wed: 17:00- City Hall(MZ- 24:00 68' 74' 24:00 68°/55° 74'/90' 2) All other times: All other times: Off Off Mon-Fri: 24 Mon-Fri: 06:00 Leisure Center hrs/day 68' 74' -22:00 68°/55° 74'/90' Sat-Sun: 24 Sat/Sun: 08:00 hrs/da -20:00 Mon-Sat: 07:00 Mon-Sat: Library -22:00 68' 74' 07:00-22:00 68°/55° 74°/85° Sun: Off Sun: Off Mon-Fri: 24 Mon-Fri: 06:00 Pavilion hrs/day 68' 74' -22:00 68°/55° 74'/90' Sat-Sun:24 Sat/Sun: 08:00 hrs/da -20:00 Mon-Fri: 24 Police Mon-Fri: 07:00 Department hrs/day 68' 74' - 19:00 68°/55° 74°/85° (AH-1 &AH-4) Sat-Sun:24 Sat/Sun: Off hrs/da Police Mon-Fri: 24 Mon-Fri: 24 Department hrs/day 68' 74' hrs/day 68' 74' (AH-2&AH-3) Sat-Sun:24 Sat-Sun: 24 hrs/da hrs/da Mon-Fri: 24 hrs/day Mon-Fri: 07:00 Police Training Sat-Sun: 24 68' 74' - 18:00 68°/55° 74°/85° hrs/da Sat/Sun: Off General Notes: 1. Airport Fire Station MZ-2 Serves front reception area and surrounding offices 2. City Hall MZ-2 serves Council Chambers 3. Police Department AH-1 &AH-4 serve basement,storage,conference room,and large lobby area on North/East portion of building. 4. City will cooperate with Contractor to further trim space conditioning times in order to increase Energy Unit Savings. Municipal Plant Assumptions on Operation&Control: ❑ Municipal Cogeneration Plant will generate electricity via natural gas engine generator, chilled water via double effect absorption chiller via reclaimed heat from the engine generator and with supplemental firing of a natural gas burner section and heating hot water through the absorption chiller via heat reclaimed from the engine generator with supplemental firing of a natural gas burner section. ❑ Engine Generator will be operated continuously 24 hours per day 7 days per week. Annual maintenance will occur during the month of February and will not exceed one month. ❑ Contractor will update the detailed economic model for the cogeneration plant which will be based on measured equipment performance. This model will be used to evaluate the economic feasibility of operating the cogeneration plant on a month by month basis using current input data. In the event that the model demonstrates that it has become uneconomic to operate the cogeneration plant; Contractor will recommend that the cogeneration plant be idled or throttled to minimize a negative economic impact to the City. Such situations will be considered a Change in Energy Use Factor as described herein. ❑ Post retrofit, for the buildings connected to the heating and cooling loops (except County Admin Building) from the Municipal Cogeneration Plant, all of the building heating and cooling requirements will be supplied by the Municipal Central Plant with the absorber being the lead equipment for both heating and cooling. Should the heating load requirements exceed the output of the absorber then the Municipal Plant boilers will operate. Should the cooling load exceed the output of the absorber in combination with the thermal energy storage system, then the Airport chiller(s) will be enabled to assist in meeting cooling loads on the loop. ❑ Engine generator has a turndown Ratio of 50%and will operate to follow the electrical load. ❑ Absorber: o The absorber has a max capacity of 450tons however only up to 290tons may be reclaimed from the engine exhaust heat the rest is supplemented by natural gas. o If cooling load is less than 90 tons, the absorption chiller will be operated in heating mode only, no cooling. (Cooling load includes supplementing the TES charge capacity) o If the cooling load is greater than 90 tons the absorber will operate to satisfy the cooling first and any additional capacity will go towards offsetting heating load. o If the cooling load exceeds the total reclaim capacity (291 tons) then the chiller shall operate with supplemental firing using natural gas. o The thermal energy system (TES)shall call for charge upon drop in stored capacity below 1850 tons-hours or upon rise of the TES chilled water supply temperature above 41 degF (+/-2 deg as dependent to satisfy site load).