HomeMy WebLinkAboutFresno Solar Solar Energy Power Purchase AgmtAMENDED AND RESTATED
SOLAR ENERGY POWER PURCHASE AGREEMENT
by and between
FRESNO SOLAR, LLC
and
TIME CITY OF FRESNO
January 2012
VYN
TABLE Or CONTENTS
Page
Article I DEFINITIONS; RULES OF INTERPRETATION................................................... I
Section 1.1 Definitions ....................
Section 1.2 Interpretation ..............
Section 1.3 Service Agreement ......
................................................................1
................................................................ 4
................................................................ 5
Article II TERM; SERVICE COMMENCEMENTDATE...................................................... 5
Section2.1 Service Term...................................................................................5
Section2.2 Interim Term..................................................................................5
Section 2.3 Service Commencement Date.......................................................5
Article III CONSTRUCTION AND INSTALLATION OF SYSTEM .................................... 5
Section3.1 Construction of System................................................................. 5
Section3.2 Contractors.................................................................................... 5
Section 3.3 Location of System— ..................................................................... 6
Article IV CONNECTION AND POINTOF DELIVERY....................................................... 6
Section 4.1 Point of Delivery .................
Section 4.2 Connection ..........................
................ 6
................ 6
Article V SALE OF OUTPUT..................................................................................................... 6
Section 5.1 Sale and Delivery of Output......................................................... 6
Section 5.2 Systenn to Reduce Other Electric Purchases ............................... 6
Section 5.3 Sale Only to Host Customerr......................................................... 6
Section S.4 Interim Term Energy ................................................ .................... 7
Section5.5 Taxes............................................................................................... 7
Article VI PURCHASE PRICE, PAYMENT AND BILLING ................................................. 7
Section 6.1 Purchase Price............................................................................... 7
Section 6.2 Monthly Payment .......................................................................... 7
Section 6.3 Invoices ........................................................................................... 7
Section6.4 Payments........................................................................................7
Section6.5 Late Fees........................................................................................ 7
Section 6.6 Contest Rights............................................................................... 8
ArticleVII METERING :............................................................................................................... 8
Section 7.1 Installation of Meter..................................................................... 8
Section 7.2 Ownership, Operation and Maintenance of Meters .................. 8
Section7.3 Meter Reading................................................................................ 8
Section 7.4 Alternatives inn Event: of Non -Operability ................................... 8
Article VIII ACCESS AND SPACE PROVISIONS.................................................................. 8
Section 8.1 Adequate Space for System.......................................................... 8
Section 8.2 Adequate Access for System Owner on Premises ...................... 9
Section 8.3 Access by host Customer to System ............................................ 9
Article IX ENVIRONMENTAL ATTRII3UTES....................................................................... 9
Section9.1 Environmental Credits................................................................. 9
Section 9.2 Environmental Documentation....................................................9
Article X CONDITIONS PRECEDENT TO SYSTEM OWNER'S OBLIGATIONS ......... 10
Section 10.1 Conditions Precedent to System Owner's Obligations............ to
Article XI REPRESENTATIONS............................................................................................. 11
Section 11.1 1 -lost Customer Representations................................................ I l
Section 11.2 System Owner Representations.................................................12
Article XII O13LIGATIONS OF TIIE PARTIES .................................................................... 12
Section12.1
Maintenance of System...............................................................
12
Section12.2
Contractors
Section12.3
..................................................................................12
Ownership....................................................................................
13.1
Section 12.4
(lost Customer Genm•al l2osp011sibilities
12
Section 12.5
..................................
host Customer Data
13
Section 12.6
....................................................................
Notice of Malf niction
13
Section 12.7
.................................................................
Cooperation Regarding Approvals ............................................
14
14
Section 12.8
Alteration of System Owner Equipment ..............................._..
14
Section 12.9
]lost Custonner Maintenance of BES
14
Section 12.10
.........................................
Use of Premises
............................................................................
14
Section 12.11
No Authorization
.........................................................................
14
ArticleXIII DEFAUL'T
..............................................................................................................
14
Section
13.1
System Failure to Perform.........................................................
14
Section
13.2
]Yost Customer Failure to Pay ....................................................
14
Section
13.3
Material Misrepreseutation as of Effective Date ......................
15
Section
13.4
Material Failure to Meet Obligations ........................................
15
Section
13.5
Bankruptcy..................................................................................
15
ArticleXIV FORCE MAJEURE............................................................................................... 15
Section14.1 Force Majeure.............................................................................I5
Section 14.2 Result of Force Ma,jeur•e............................................................. 1.5
Article .XV TERMINATfON AND PARTIES' RIGII` S ........................................................ 16
Section 15.1 Termination for Failure to Meet Condition Precedent ........... 16
Section 15.2 Termination for Failure to Achieve Service
Commencement Date.................................................................. 16
Section 15.3 Termination due to Liazardous Materials or
Contamination Discovery........................................................... 16
Section15.4 Termination for Default .............................................................16
Section 15.5 Termination due to Force Majeure Event ................................ 17
Article XVI OPTIONS UPON EXPIRATION.........................................................................17
Section16.1 Options.........................................................................................17
Section 16.2 Operations and Maintenance Agreement ................................. 17
Article XVII LIABILITY; INDEMNIFICATION.................................................................. 17
Section
17.1
Liability and Responsibility.......................................................17
19
Section
17.2
Disruption in Delivery................................................................
18
Section
17.3
Consequential Damages and Limitation of Liability ...............
18
Section17.4
18.4
Indemnification...........................................................................
18
Section17.5
18.5
Survival
20
........................................................................................
19
Article XVIII LIMITED WARRANTY; INTERRUPTION Or SERVICE .........................19
Section
18.1
System Performance...................................................................
19
Section
18.2
Transfer to host Customer........................................................
19
Section
18.3
Interruptions Are Expected.......................................................
20
Section
18.4
Reasons for System Owner's Interruption of Output .............
20
Section
18.5
Cost to Restore Service Following Interruption .......................
20
ArticleXIX INSURANCE.......................................................................................................... 20
Section 19.1 System Owner's Insurance......................................................... 20
ArticleXX ASSIGNMENT........................................................................................................20
Section 20.1 Assignment by host Customerr................................................... 21
Section 20.2 Assignment by Systen Ownerr.................................................... 21
Article XXI MISCELLANEOUS.............................................................................................. 21
Section21.1 Disputes........................................................................................21
Section 21.2 Confidentiality.............................................................................21
Section 21.3 Notices and Changes of Address ................................................ 22
Section 21.4 Applicable Law and Jurisdiction ............................................... 22
Section21.5 Complete Agreement.................................................................. 22
Section 21.6 No Amendment............................................................................ 23
Section21.7 Energy Audit..............................................................................23
Section 21..8 Further Documents.....................................................................23
Section21.9 Severability..................................................................................23
Section 21.10 Counterparts................................................................................ 23
Section 21.11 Neutral Interpretation................................................................23
Section21.12 No Waiver....................................................................................23
Section 21.13 Survival........................................................................................ 23
Section21.14 Marketing.................................................................................... 23
iv
EXHIBITS
Exhibit A System
Exhibit B Solar Electricity Price
Exhibit C Monthly Estimates
Exhibit D DELETED
Exhibit L Performance Specifications
Exhibit F Request for Proposals
Exhibit G System Owner's Proposal
Exhibit I -I Early Termination Payment
Exhibit I Insurance Requirements
AMENDED AND RESTATED
SOLAR ENERGY POWER PURCHASE AGREEMENT
This Solar Energy Power Purchase Agreement (this "A reement") is made and entered
into as of theqday of January, 2012 (tile "Effective Date"), by and between Fresno Solar,
LLC ("Systeni Owner") and The City of Fresno ("Host, Customer"). Each of System Owner and
Host Customer shall be referred to herein as a "Party" and collectively, as the "Parties".
RECITALS
WHEREAS, Host Customer owns and controls the parking structure located at 707 O
Street, Fresno, CA 93721 (the "Promises"), which uses Electricity; and
WHEREAS, I -lost Customer desires to reduce its dependence on fossil fuel electric
generating resources and to promote the generation of Electricity from solar pliotovoltaic
facilities; and
WHEREAS, I'Iost Customer invited proposals to design, finance, install and operate a
solar photovoltaic electricity generating system on a portion of the Premises (tile "Request fob
I'Iosals"), which is attached as Exhibit F hereto, and hereby made a part hereof; and
WHEREAS, System Owner responded to the Request for Proposals and made a
proposal (tile "System Owner's Proposal") which is attached as Exhibit G hereto, and hereby
made a part hereof; and
WHEREAS, I -lost Customer determined System Owner's Proposal to be the ,lost
advantageous to Host Customer anti is therefore prepared to grant System Owner a non-
exclusive license to occupy a portion of the Premises for the purposes of installing;, operating,
maintaining; and repairing; the System and selling all of the Output to Host Customer;
NOW, THEREFORE, in consideration of the agreements and covenants herein,
including without limitation thereto System Operator's Proposal, and intending to be legally
bound hereby, the Parties hereby covenant and agree as follows:
ARTICLE I
DEFINITIONS; RULES OF INTERPRETATION
Section 1.1 Definitions. The following terms shall have the following meanings:
"Agreement" Shall have the meaning; set firth in the introductory paragraph hereto.
4%ushiess Day" Any day other than Saturday, Sunday, or a legal holiday in the State of
California.
"BLS" The Host Customer's existing building electrical systems that are owned, operated,
maintained and controlled by the Host Customer, including the interconnection of these systems
with the local utility.
"Conditions Precedent" Shall have the meaning set forth in Section 10.1 (Conditions
Precedent to Systema Owner's Obligations) hereof.
"Default" Any event or circumstance which, with notice or lapse of time or both, would
constitute all Event of Default under Article XIII (Default) hereof.
"Dispute" Shall have the meaning set forth in Section 21.1 (Disputes) hereof
"Due Date" Shall have the meaning set forth in Section 6.4 (Payments) hereof:
"Early Termination Payment" Shall have the meaning set forth in Exhibit II (Early
Termination Payment), attached hereto.
"Effective Date" Shall have the meaning set Porth in the introductory paragraph hereto.
"Electricity" Electrical capacity and associated electrical energy.
"Emergency" Any event or condition relating to or affecting the System which poses all
inunincut threat or injury to persons or damage to property, including any person or property at
the Premises.
"Energy Audit" Shall have the meaning set forth in Section 21.7 (Energy Audit) hereof
"Environmental Credits" Any and all federal, state or local renewable energy or emissions
credits, incentives or any other green tag, renewable energy, emissions reduction or other
environmental benefit, whether related to ally renewable portfolio standard or other renewable
energy purchase requirement or otherwise, whether existing as of the Effective Date or enacted
thereafter and whether available to System Owner as producer of Output or available to I -lost
Customer as purchaser of Output, including incentives pursuant to the California Solar Initiative
or successor program.
"Event of Default" A Default of this Agreement, as set forth in Article XIII (Default) hereof.
"Final Date" Shall have the meaning set forth in Section 15.2 (Termination for Failure to
Achieve Service Commencement Date) hereof.
"Force Majeure ,Event" Shall have the meaning set forth in Suction 14,1 (Force Majcure)
hereof:
"Governmental Approvals" Shall have the meaning set forth in Section 10.1.1 (Necessary
Governmental Approvals) hereof
"Bost Custmner" $hall have the leaning set forth in the introductory paragraph hereto.
"Indemnified Parties" Shall have the meaning set forth in Section 17.4 (Indemnification)
hereof.
"Indemnifying Party" Shall have the meaning set firth in Section 17.4 (Indemnification)
hereof.
"Interim Term" Shall have the meaning set forth in Section 2.2 (Interim Term) hereof:
"Late Fee" Shall have the meaning set forth in Section 6.5 (Late Fees) hereof
"Material Adverse Effect" nncans an event, change or occurrence with respect to one Party
which, individually or together with any other event, change or occurrence, has a material
adverse effect on the financial position, business, properties, assets or results of operations of the
other Party.
"Meter" The standard instrument(s) and equipment used to measure and record the Output and
delivered to the Host Custonner at the Point of Delivery. The Meter will be considered part of
the System.
"Output" )electricity produced by the System delivered by System Owner to the Host Customer
at the Point of'Delivery.
"Partylies" Shall have the nneaning set forth in the introductory paragraph hercto.
"Person" Shall mean any natural person, partnership, trust, estate, association, corporation,
limited liability company, Governmental Authority or any other individual or entity.
"Point of Delivery" The physical location, as set forth on Exhibit A (Systenn), attached hereto,
where the System connects to the BES, at which point custody and control of, and tide to the,
Output is transferred from System Owner to Host Customer.
"PI'T" Pacific Prevailing Time
"Premises" Shall have the meaning set forth in the recitals hereto.
"Prudent Industry Practice" The practices, methods and acts engaged in or approved by a
significant portion of the solar energy industry that, at a particular time, in the exercise of
reasonable judgment ill light of the facts known or that reasonably should have been known at
the time a decision was made, would have been expected to accomplish the desired result in a
manner consistent with law, regulation, reliability, safety, environmental Protection, econonny
and expedition.
"Renewal Term" Any additional term, which shall extend the Initial Term, to the extent agreed
upon by the Parties in writing pursuant to Section 2.1 (Service Term) hereof.
"Request for Proposals" Shall have the meaning set forth it) the recitals hereto.
"Service Terni" Shall have the meaning set forth in Section 2.1 (Service Term) hereof,
"Service Commencement Date" Shall have the meaning set forth in Section 2.3 (Service
Commencement Date) hereof.
"Site" Those areas on the Premises where the Solar Facility is to be located, as more fully
described in Exhibit A (System).
"Solar Electricity Price" Shall have the meaning set forth in Section 6.1 (Purchase Price)
hereof.
"System" All equipment, facilities and materials, including photovoltaic arrays, DC/AC
inverters, wiring, Meters, and any other property now or hereafter installed, owned, operated, or
controlled by System Owner for the purpose of or incidental or useful to maintaining the use of
the System and providing Output to Host Customer through and in conjunction with the BES.
The System excludes any part of the BES as shown in Exhibit A (System), attached hereto, as
such Exhibit A (System) may be modified from time to time dining the Service Term.
"System Owner" Shall have the meaning set forth in the introductory paragraph hereto.
"System Owner's Proposal" Shall have the meaning set forth in the recitals ]ncr•eto.
"Utility Rate" The applicable all-inclusive electric service rate charged to Host Customer by
the electric utility (including municipal or cooperative utility, as applicable) serving Host
Customer in the service territory in which I -lost Customer is located and any other energy service
provider serving Host Customer, as applicable. This all-inclusive rate shall include all electric
charges, transmission, distribution or other delivery charges, ancillary service charges, transition
or competitive service charges, taxes, and other fees and charges in place.
Section 1.2 interpretation.
Section 1.2.1 In this Agreement, unless the context indicates otherwise, the singular
includes the plural and the plural the singular, words importing any gender include the other
gender, any reference to a time of day shall mean the local time; references to statutes, sections
or regulations are to be construed as including all statutory or regulatory provisions
consolidating, amending, replacing, succeeding or supplementing the statute, section or
regulation referred to; references to "writing" include printing, typing, lithography, facsimile
reproduction and other means of reproducing words in a tangible visible form; the words
"including," "includes" and "include" shall be deemed to be followed by the words "without
limitation" or "but not limited to" or words of similar import; references to articles, sections (or
subdivisions of sections), exhibits, annexes or schedules are to those of this Agreement unless
otherwise indicated; references to agreements and other contractual instruments shall be deemed
to include all exhibits and appendices attached thereto and all subsequent amendments and other
modifications to such instruments, but only to the extent such amendments and other
modifications are not prohibited by the terms of this Agreement; and references to Persons
include their respective successors and permitted assigns.
Section 1.2.2 In the case of any conflict between a provision of the Request for
Proposals, attached hereto as Exhibit F, or System Owner's Proposal, attached hereto as Exhibit
G, and a provision contained in the body of this Agreement, the provision contained in the body
of this Agreement shall control.
Section 1.3 Service Agreement. The Parties intend that this Agreement be treated as a
"service contract" within the meaning of Section 7701(e) of the Internal Revenue Code,
AR`rICLE 11.
TERM; SERVICE COMMENCEMENT DATE
Section 2.1 Service Term. The term of this Agreement (the "Service Term") shall
commence on the Effective Date and shall expire twenty (20) years following the Service
Commencement Date (subject to the additional timeframes in certain Force Majeure Events
described in Section 14.2 (Result of Force Majeure), as applicable), unless terminated earlier in
accordance with the terms and conditions in this Agreement.
Section 2.2 Interhn'rernr. The period commencing on the Effective Date and continuing
through and until the Service Commencement Date shall be referred to herein as the "Interim
Term" — —
Section 2.3 Service Commencement Date. System Owner shall provide no less than three
(3) Business Days written notice prior to the Service Commencement Date to Host Customer that
the System is ready for operation in accordance with Prudent Industry Practice and that service
under this Agreement will begin on the date certain indicated in the notice (the "Service
Commencement Date"),
ARTICLE III
CONS'T'RUCTION AND INSTALLATION OF SYSTEM
Section 3.1 Construction of System. During the Interim Term, System Owner shall install,
construct, service and test the System, pursuant to the terms and conditions set forth in Exhibit A
(System), attached hereto. }lost Customer shall provide System Owner reasonable access to the
Premises, pursuant to the provisions in Article VIII (Access and Space Provisions), in order for
System Owner to install, construct, service and test the System.
Section 3.1.1 Hazardous Materials or Contamination Discovery. In the event that
System Owner discovers the presence or discharge of hazardous materials or environmental
contamination at the Site or the designated construction laydown areas, System Owner shall
provide to notice to host Customer of such discovery. System Owner shall not be obligated to
continue any work with respect to the System, including without limitation installation or
construction, until such time as Host Customer has removed and rcmediated such presence or
discharge. I lost Customer shall be responsible for all costs associated with such removal and
remediation, including any costs incurred by System Owner to accommodate such removal and
remediation. Any delay in the Service Commencement Date due to such discovery shall
automatically extend, on a day -for -day basis, the final Date.
Section 3.2 Contractors. System Owner may hire independent contractor's to design, build,
and install the System. Such independent contractors may use subcontractors for any part or all
of the services contracted by System Owner, System Owner agrees to notify Most Customer of
Syston Owner's intent to use any contractors or subcontractors at least three (3) days before
contractor or subcontractor work is set to commence.
Section 3.3 Location of System. Host Customer and System Owner agree that the System
shall be situated on Host Customer's Premises at the location specified in Exhibit A (System),
attached hereto.
ARTICLE IV
CONNECTION AND 110INT Oh DELIVERY
Section 4.1 Point of Delivery. The Point of Delivery is the point identified in Exhibit A
(System), attached hereto, which is the point of connection of the System to the BES. Title to
the Output shall pass from System Owner to Host Customer at the Point of Delivery.
Section 4.2 Connection. System Owner shall provide all necessary wiring requirements from
the System to the Point of Delivery, System Owner is responsible for the interconnection of the
System to the BES within the Premises and is solely responsible for all equipment, maintenance
and repairs associated with such interconnection equipment in accordance with the terms and
conditions of this Agreement.
ARTICLE V
SALE Or OUTPUT
Section 5.1 Sale and Delivery o1' Output. System Owner shall deliver and sell all Output to
the Point of Dolivery, and Host Customer shall accept delivery of and purchase all Output at the
Point of Delivery, beginning on the Service Commencement Date until the end of the Service
Term.
Section 5.2 System to Reduce Other Electric Purchases. The Parties intend that the Output
will reduce Host Customer's purchase of Electricity from other sources, including the Host
Customer's local utility, Pacific Gas & Electricity a/k/a PG&E. I -lost Customer agrees to meet
its .Electricity needs first, by the Output from the System, and second, by purchasing Electricity
and other electric products from other sources. The System is not intended to eliminate entirely
Host Customer's Electricity needs from other sources, and therefore, Host Customer shall have a
contractual arrangement in place at all times during the Service Term with its local electric utility
or with another provider of retail electricity which is responsible for meeting all of Host
Customer's Electricity needs, regardless of the Output frons the System.
Section 5.3 Sale Only to Host Customer. hn no event shall System Owner sell directly, or be
deemed to have sold directly, Output to any Person other thin Host Customer. In the event that
Host Customer's load is less than the total Output being delivered by System Owner to the Point
of Delivery at any given time, the Parties acknowledge and agree that such Output shall have
been delivered to I -lost Customer at the point of Delivery in accordance with Sections 4.1 (Point
of Delivery) and 5.1 (Sale and Delivery of Output) and shall flow through the BITS to the
interconnection point between the BES and the local utility. The Parties further acknowledge
and agree that in such instance, the treatment of such Output shall be determined by
arrangements between I -lost Customer and its local utility (which arrangements are typically
referred to as "Net Metering"), and Host Customer shall be responsible for all charges, fees or
taxes related to such Net Metering,
Section 5.4 Interina Term Energy. Host Customer shall accept delivery of Output, including
in form of test energy, during the Interim Term. There shall be no charge imposed upon Host
Customer for System Owner's provision of this Output during the Interim Term.
Section 5.5 Taxes. System Owner is responsible for local, state and federal income taxes
attributable to System Owner for income received under this Agreement. System Owner agrees
to bear and pay when due any sales or gross receipts tax, to the extent applicable, imposed upon
a seller of Electricity, to the extent that the Utility Rate also includes a similar sales or gross
receipts tax that is at least as high, on a kWh basis, as the sales or gross receipts tax attributable
to System Owner. If such a sales or gross receipts tax is attributable to the sale of Output from
System Owner to host Customer, but not otherwise included or includable in the Utility Ratc,
then Host Customer agrees to bear the costs of such sales or gross receipts taxes. System Owner
is responsible for any ownership or personal property taxes attributable to the System, if
applicable.
ARTICLE VI
PURCHASE PRICE, PAYMENT AND BILLING
Section 6.1 Purchase Price. System Owner will charge Host Customer the "Solar L;Icctricit
Price" for each kilowatt hour (kWh) delivered to I -lost Customer in accordance with the pricing
provisions set forth in Exhibit 13 (Solar (Electricity Price), attached hereto.
Section 6.2 Monthly Payment. Host Customer shall pay System Owner a monthly payment
as set forth in the monthly invoice by System Owner, based on the Purchase Price provided in
Exhibit B.
Section 6.3 Invoices. Each month, System Owner shall prepare and provide (-lost Customer
an invoice for Output delivered in the prior month. Delays in the issuance of any such invoice
shall not constitute any waiver of Host Customer's obligation to pay, or System Owner's right to
collect, any payment by System Owner under any such invoice. Each invoice shall set forth in
reasonable detail the calculation of all amounts owed as part of the Solar Electricity Price,
Section 6.4 Payments. Subject to its contest rights, Host Customer shall pay the full amount
of each invoice on or before the fifteenth (15"i) calendar day following receipt thereof ("Due
Date"), All payments made by Host Customer under this Agreement shall be by check. Unless
otherwise directed in the monthly invoice, all payments must be made payable to:
Fresno Solar, LLC
12970 Earhart Avenue
Suite 110
Auburn, CA 95602
Section 6.5 Late Lees. If any part of a Monthly Payment is not matte by Host Customer
within fifteen (15) calendar days following the Due Date, I -lost Customer agrees to pay System
Owner a late fee of twelve (12) percent per annum of each such late payment ("Late Pee"), to the
extent such Late Fee is permitted by taw. Host Customer agrees to pay System Owner any Late
Fees not later than one (1) month following the original Due Date. The calculation of Late Fees
that remain unpaid as set forth in this Section 6.5 (Late Fees) shall not constitute any waiver of
Host Customer's obligation to pay such amounts when due, or System Owner's right to collect,
any payment by Host Customer under any such invoice, as well as System Owner's right to
exercise its rights with respect to Host Customer's Default.
Section 6.6 Contest Rights. Host Customer shall notify System Owner in writing within ten
(1 G) calendar days of receipt of the monthly invoice of any portion of the invoiced amount which
it has a reasonable basis to dispute in accordance with Section 21.1 (Disputes). 'tile contested
portion of any invoiced amount shall not relieve Host Customer of its obligation to pay the
uncontested portion of such invoice as set forth in Section 6.4 (Payments).
ARTICLE V1I
METERING
Section 7.1 Installation of Meter. System Owner shall install the Meter, in accordance with
the requirements of the California Solar Initiative, al the Point of Delivery to measure accurately
the amount of Output delivered by System Owner to Host Customer.
Section 7.2 Ownersbip, Operation and Maintenance of Meters. System Owner shall own,
and at its own expense, operate and maintain the Meter during the Service Tema. System Owner
shall exercise reasonable care in the operation and maintenance of the Meter so as to assure to
the maximum extent reasonably practical an accurate determination of the Output.
Section 7.3 Meter- Reading, System Owner shall read the Meter at the end of each calendar
mouth, and shall record the Output delivered to Host Customer. The Meter shall be used as the
basis for calculating the Solar Electricity Price under this Agreement. The records from each
Meter shall be made available to Host Customer upon written request.
Section 7.4 Alternatives in Event of Non -Operability. lin the event the Meter is out of
service or registers inaccurately, [lie measurement of Output shall be determined by the
following alternatives, in the following order: (a) any alternative or back-up meter that System
Owner may have installed, if registering accurately; (b) a mathematical calculation if upon a
calibration test of such Meter a percentage error is ascertainable; or (c) estimates of deliveries of
Output by reference to quantities measured during periods of similar conditions when such Meter
was registering accurately.
ARTICLE Vlll
ACCESS AND SPACE PROVISIONS
Section 8.1 Adequate Space for System. Host Customer shall provide System Owner
adequate space on the Premises for System Owner's installation, operation, maintenance, and, to
tale extent applicable, removal, of the System, including the Meter and any applicable
transmission facilities. The space for the location of the System may include, but is not limited
to, roof, riser, interior, and exterior space, on which the System will reside during the Service
Term. Specific plans fix the location of the System are provided in Exhibit A (System), attached
hereto. i -lost Customer shall provide System Owner with such space no later than January 1,
2012,
Section 8.2 Adeqnate Access for System Owner on Premises. Dost Customer shall provide
System Owner adequate access to the Premises for System Owner's installation, operation,
maintenance, and, to the extent applicable, removal, of the System, including the Meter. Host
Customer shall provide System Owner access to Host Customer's Premises on a twenty-four
(24) hour basis to permit System Owner to access its equipment, read and test metering
equipment and perform any other functions as may be necessary for System Owner to fulfill its
obligations under this Agreement, including inspection, repair, replacement, construction,
installation, removal, alteration, expansion, or calibration of the Meter and the System, subject to
such reasonable supervision by I -lost Customer as Host Customer may require. This Agreement
shall constitute a non-exclusive license that grants System Owner reasonable access to,
occupancy of and use of the Premises of Most Customer in order for System Owner to meet its
obligations hereunder, including interconnection with the BES.
Section 8.3 Access by Host Customer to System. Because the System will be located on the
Premises owned by Host Customer, the Parties acknowledge that ]-lost Customer will have
access to the Site for safety, security and Emergency purposes. However, I lost Customer agrees
to use reasonable best efforts to ensure that, other than in emergencies, the operability of the
System is not disrupted, and the System is mot damaged as a result of actions or inactions of Host
Customer or its designec(s).
ARTICLE IX
ENVIRONMENTAL ATTRiBuTES
Section 9.1 Environmental Credits. All Environmental Credits, whether available directly
or indirectly, shall be and shall remain the property of System Owner for the Service Term.
System Owner shall have sole use of such Environmental Credits and shall be permitted to use
such Environmental Credits for itself, or to sell, grant, convey, or otherwise dispose of such
Environmental Credits to any other- Person, in System Owner's sole discretion. klost Customer
hereby grants, malces and conveys to System Owner an absolute and irrevocable assignment of
any and all right, title and interest Host Customer may at any time have in or to any
Environmental Credits; provided that, in the event that Host Customer takes title to the System,
System Owner shall re -assign to I -lost Customer all such right, title and interest in any
Environmental Credits upon such purchase.
Section 9.2 Environmental Documentation. Host Customer, with the. assistance of System
Owner, will complete any and all documentation required by the California Solar Initiative or
other L?nvironmcntal Credit program to verify System Owner's rights to any economic incentives
and the sale of Renewable Energy Certificates (which evidence Environmental Credits) or othea'
Environmental Credits and unfettered ability to sell the Renewable Energy Certificates or other
Environmental Credits to a third party.
ARTICLE X
CONDITIONS PRECEDENT TO SYSTEM OWNER'S OBLIGATIONS
Section 10.1 Conditions Precedent to System Owner's Obligations. Each of the following
conditions precedent (the "Conditions. Precedent") must be met or waived by System Owner, in
its sole discretion, prior to System Owner's obligations to: (a) commence construction and
installation of the System; and (b) commence the delivery of Output to Host Customer. System
Owner agrees to use good faith efforts to satisfy the Conditions Precedent as expeditiously as
practicable. Host Customer agrees to cooperate with System Owner, upon System Owner's
reasonable request, ill order for System Owner to meet the Conditions Precedent.
Section 10.1.1 Necessary Governmental Approvals. System Owner shall have
received and retained where necessary, all applicable and material federal, state and local
approvals, permits, licenses and authorizations necessary: (a) for the construction and installation
of the System, prior to the commencement of construction and installation of the system; and (b)
for the generation and sale of Output to the Host Customer under this Agreement, prior to the
commencement of delivery of Output to I-Iost Customer (collectively, "Governmenta-1
Ahpro__v_als").
Section 10.1.2 Additional Consents and Approvals. System Owner shall have
obtained any necessary casements, leases, licenses, consents and approvals and other rights
System Owner deems necessary or desirable for the construction and installation of the System,
the production and delivery of Output to the Point of Delivery, and the operation and
maintenance of the System under this Agreement.
Section 10.1.3 Ownership of Approvals. All such permits and approvals in this
Article X (Conditions Precedent to System Owner's Obligations) shall be owned and controlled
by System Owner. To the extent that any such permits or approvals must be obtained and/or
owned by Host Customer, then Host Customer agrees that it will grant all material decision-
making rights with respect to such permits and approvals to System Owner.
Section 10.1.4 Agreements with Third Parties.
(a) System Owner may execute a Renewable Energy Certificate agreement;
and
(b) Prior to commencement of construction and installation of the System,
System Owner shall have obtained a financing commitment from a third
party on terns acceptable to System Owner, such acceptability being in
System Owner's sole discretion. Prior to commencement of delivery of
Output to I lost Customer, System Owner shall have obtained financing
thorn a third party on terms acceptable to System Owner, such
acceptability being in System Owner's sole discretion; and
(c) System Owner shall have obtained, with Host Customer's assistance, a
non -disturbance agreement with each holder of a security interest, lien or
mortgage with respect to the Premises existing as of the Effective Date
acknowledging and recognizing System Owner's rights as provided
hereunder and acknowledging that the System is the personal property of
System Owner severable ftom the Premises and not a fixture.
ARTICLE XI
REPRESEN'T'ATIONS
Section 11.1 Host Customer Representations. Host Customer hereby represents to System
Owner that:
Section 11.1.1 Due Authorization. I -lost Customer is duly authorized and empowered
to enter into this Agreement;
Section 11.1.2 No Conflict. This Agreement is enforceable according to its terms and
does not conflict with or violate the terms of any other material agreements to which i -lost
Customer is a party, including, if applicable, any ]lost Customer leases with respect to tate
Premises;
Section 11.1.3 Most Customer Data. Host Customer has furnished, or caused others to
furnish, to System Owner accurate and complete data concerning energy usage fbr and other
information pertaining to the Promises, including but not limited to the following:
(a) Utility and any other energy service provider records for the 12 -month
period preceding the Effective Date;
(b) Any energy or environmental audits relating to all or any part of the
Premises;
(c) Any service or maintenance agreement(s) regarding the BES, orally part
thereof; and
(d) Construction drawings ("as-builts") in existence as of the Effective Date•,
Section 11.1.4 Accuracy of Information. The information provided pursuant to this
Agreement as of the Effective Date is true and accurate in all material respects;
Section 11.1.5 Ability to Perform. Host Customer has no knowledge of any facts or
circumstances that, but for the passage of time, would materially, adversely affect either Party's
ability to perform its respective obligations hereunder and, if Host Customer is a Governmental
Authority or instrumentality thereof, I -lost Customer has complied with all laws and rcgulations
relative to bidding or procurement of the Output hereunder; and
Section 11.1.6 Ownership and Control over Premises. Host Customer owns title to
and controls the Premises and the real estate upon which the Premises are located, and no other
parties hold a security interest in said Premises or real estate.
Section 11.1.7 Hazardous Materials or Contamination. Host Customer, atter due
diligence, has no knowledge of any hazardous materials or environmental contamination on the
Site or the designated construction laydown areas.
Section 11.2 System Owner Representations. System Owner hereby represents to Most
Customer that:
Section 11.2.1 Due Authorization. System Owner is duly authorized and empowered
to enter into this Agreement;
Section 11.2.2 No Conflict, This Agreement is enforceable according to its terms and
does not conflict with or violate the terns of any other material agreements to which it is a party;
Section 11.2.3 Accuracy of Information. The information provided pursuant to this
Agreement as of flic Effective Date is true and accurate in all material respects; and
Section '11.2.4 Ability to Perform. System Owner has no knowledge of any facts or
circumstances that, but for the passage of time, would materially adversely affect either Party's
ability to perform its respective obligations hereunder.
ARTICLE X11
OBLIGATIONS OF THE PARTIES
Section 12.1 Maintenance of System. System Owner shall maintain fire System in good
working order, ordinary wear and tear excepted, and shall ensure that the System performs to the
performance criteria set forth in Exhibit E (Performance Specifications), attached hereto.
Section 12.2 Contractors. System Owner may utilize independent contractors to operate and
maintain the System. Such independent contractors may use subcontractors for any part or all of
the services contracted by System Owner. System Owner agrees to notify Host Customer of use
of ally contractors or subcontractors at least three (3) days before contractor or subcontractor
work is set to commence
Section 12.3 Ownership.
Section 12.3.1 I -lost Customer acknowledges and agrees that it is not the owner of the
System and does not have title to the System. Host Customer agrees that it will at all times keep
the System flee from any legal process or lien as a result of the actions or inactions of Host
Customer. I -lost Customer will give System Owner immediate notice if any legal process or lien
is asserted or made against the System or against Host Customer where the System may be
subject to any lien, attachment or seizure by any Person. Notwithstanding any other provision of
this Agreement, the Parties acknowledge and agree that the System sball, at all times, be personal
property severable from the Premises and that it is not, and shall not be deemed to be, a fixture to
the Premises.
Section 12.3.2 In the event that any or all of the Premises is, or becomes, subject during
the term of this Agreement to a lease, or to a security interest, lien or mortgage, I -lost Customer
shall ensure that the lessor or the holder of such security interest, lien or mortgagee shall enter
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into a non -disturbance agreement with System Owner acknowledging and recognizing System
Owner's rights as provided hereunder and acknowledging that the System is the personal
property of System Owner (or its Lessor) severable from the Premises and not a fixture.
Section 12.3.3 Host Customer shall from time to time grant to System Owner
easements, leases, licenses, consents and approvals and other rights System Owner reasonably
deems necessary or desirable for the production and delivery of Output to the Point of Delivery,
and the operation and maintenance of the System under this Agreement.
Section 12.4 host Customer General Responsibilities.
Section 12.4.1 Host Customer shall be responsible for maintaining and fulfilling all
contractual obligations with respect to its interconnected utility service provider, including with
respect to such interconnection service, power supply service, Net Metering arrangements, and
delivery service, and meeting all requirements imposed by the local utility and the California
Public Utilities Commission with respect to such service.
Section 12.4.2 I -lost Customer shall be responsible for all ongoing maintenance and
upgrades to the BLS, required by the local utility or mandated by Prudent Industry Practice and
applicable laws and regulations.
Section 12.4.3 Host Customer shall use reasonable efforts, consistent with its
customary and usual practices as of the date hereof, to ensure the safety and security of the
System against trespass or unauthorized access to the System; provided that [lost Customer shall
not be subject to liability for damage or loss caused by such trespass or unauthorized access
unless, and to the extent, such damage or loss is caused by the gross negligence, recklessness or
willful misconduct of Host Customer.
Section 12.5 Host Customer Data. host Customer will furnish, or cause others to furnish, for
the Service Term hereof, to the System Owner, promptly as information becomes available,
accurate and complete data concerning energy usage for and other information pertaining to the
Premises, including but not limited to the following:
Section 12,5.1 Utility records throughout the Service Term;
Section 12.5.2 Any energy or environmental audits performed during the Service T erm
relating to all or any part of the Promises;
Section '12.5.3 Any service or maintenance agreernent(s) entered into during the Sorvice
Term regarding the BCS, or any pmt thereof,
Section 12.5.4 Construction drawings (""as-builts") developed during the Service Term;
and
Section 12.5.5 Annual unaudited financial statements of I -lost Customer, including a
Statement of Net Assets and a Statement of Revenues, Expenses and Changes in hued Net
Assets within 140 days of the end of each fiscal year of Host Customer, and annual audited
financial statements of Host Customer, including a Statement of Net Assets and a Statement of
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Revenues, Expenses and Changes in Fund Net Assets, no later than thirty (30) days following
approval by Host Customer's City Council during the Term.
Section 12.6 Notice of Malfunction. Host Customer shall notify System Owner within
twenty-four (24) hours of Host Customer's receipt of actual or constructive notice of (a) any
material malfunction in the operation of the equipment installed on the Premises in connection
with this Agreement or equipment affected by the Output provided pursuant to this Agreement
(including the BES) and/or (b) any interruption or alteration of tlnc energy supply to the
Premises.
Section 12.7 Cooperation Regarding Approvals. The Parties shall work together
cooperatively to assist one another in procuring and maintaining all necessary approvals and
consents described in this Agreement or otherwise required to effectuate the purposes of this
Agreement.
Section 12.8 Alteration of System Owner Equipment. Host Customer shall not cause or
voluntarily permit any modification or alteration to any part of System Owner's equipment
located on the Premises, including without limitation the System, valves, conduits, piping or
other materials or tools, except in an Lnnergency where life or property is threatened.
Section 12.9 Host Customer Maintenance of BES. ]-lost Customer shall use care to ensure
that the BES does not disruptor interfere with Che operation of the System. host Customer shall
maintain, repair and replace such parts of the BES as necessary in accordance with Prudent
Industry Practice so that its equipment within the Premises complies with all applicable building
codes and industry standards.
Section 12.10 Use of Premises. I -lost Customer intends to continue to use the Premises in a
manner similar to its present use, except as may have been disclosed to System Owner by Host
Customer in writing;
Section 12.11 No Authorization. Host Customer, under the operation and maintenance
provisions of this Agreement, agrees that it is not authorized to adjust, maintain, alter, service, or
in anyway interfere with operation of the System, except as authorized in writing by System
Owner or in the event of an Emergency where Life or property is threatened.
ARTICLE X111
DEFAULT
Section 13.1 System Failure to Perform. An Event of Default shall occur with respect to
System Owner if System Owner fails to provide any Output for a period of at least ninety (90)
consccutivc days following the Service Commencement Date; Irovided, however, that non-
operation of the System for days involving a Force Majeure Event shall not be used in
calculating such consecutive days.
Section 13.2 Host Customer Failure to Pay. An Event of Default shall occur with respect to
the I -lost Customer if the Host Customer fails to pay an Invoice following the Duc Date, and such
1'ailuc continues for a period of seven (7) days after System Owner provides written notice of
such nonpayment to Host CuSMInCr.
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Section 13.3 Material Misrepresentation as of Effective Date. An Event of Default shall
occur with respect to either Party if a Party misrepresents a material fact as of the Effective Date.
Section .13.4 Material Failure to Meet Obligations. An Event of Default shall occur with
respect to either Party if a Party fails to perform fully any material provision of this Agreement
other than as explicitly set forth in this Article XIII (Default), and either: (a) such failure
continues for a period of thirty (30) clays after written notice of such nonperi'ormance; or (b) if
the nonperforming Party commences an action to cure such failure to perform within such thirty
(30) days, and thereafter proceeds with all due diligence to cure such failure, and such failure is
still not cured within the following sixty (60) days.
Section 13.5 Bankruptcy. An Event of Default shall occur with respect to any Party that: (a)
voluntarily or involuntarily files or has filed against it a bankruptcy or other similar petition that
is not dismissed within sixty (60) days of the initial filing; (b) enters into an assignment o'f its
assets f'or the benefit of its creditors; or (c) otherwise is unable to pay its debts as they become
due.
ARTICLE SIV
FORCE MAJEURE
Section 14.1 Force Majeure. Neither System Owner nor I lost Customer shall be considered
to be in default in the performance of its obligations under this Agreement (excluding Host
Customer's obligations to make payment, which obligations are absolute and shall not be
excused for any reason whatsoever, including the cessation of operations of 1 -lost Customer or
the sale of the Premises), to the extent that performance of any such obligation, including the
Service Commencement Date, is prevented or delayed by any cause, existing or future, which is
beyond the reasonable. control of, and not the result of the fault or negligence of, the affected
Party or its affiliates (a' l:orceMajeure Event'), including, but not limited to, by way of
example, strikes or other labor disputes (other than strikes or labor disputes solely by employees
of the Parties to this Agreement), supply shortages, adverse weather conditions and other acts of
nature, subsurface conditions, riot or civil unrest. If a Party is prevented or delayed in the
performance of any such obligation by a Force Majeure Event, such Party shall immediately
provide notice to the other Party of the circumstances preventing or delaying performance and
the expected duration thereof. Such notice shall be confirmed in writing as soon as reasonably
possible. The Party so affected by a Force Majeure Event shall endeavor, to the extent
reasonable, to remove the obstacles which prevent performance and shall resume performance of
its obligations as soon as reasonably practicable.
Section 14.2 Result of Force Majeure. IfSystem Owner is unable to deliver Output due to a
Force Majeure Event, but Host Customer is ,able to receive such Output, I lost Customer shall not
be obligated to make payment for such period. The Service Term of this Agreement will be
extended for an equal number of days in which Host Customer payment was not required due to
a Force Majeure Event affecting System Owner as described in this Article XIV (Force
Majeure).
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ARTICLE XV
TERMINATION AND PARTIES' RIGHTS
Section 15.1 'Termination for Failure to Meet Condition Precedent, If at any time prior to
Marcia 1, 2012, System Owner determines that any of the Conditions Precedent have not been, or
are not capable of being, met, System Owner may terminate this Agreement following twenty
(20) clays written notice of such termination to Host Customer.
Section 15.2 Termination for Failure to Achieve Service Commencement Date. Subject to
the provisions of this Section 15.2 (Termination for Failure to Achieve Service Commencement
Date), in the event that System Owner fails to achieve the Service Commencement Date by
December 31, 2012, (the "Final Date"), Host Customer may terminate this Agreement upon
written notice to System Owner. The Final Date shall be extended, on a day -for -day basis:
(a) Pursuant to the terms of Section 3. 1.1 (Hazardous Materials or Contamination
Discovery);
(b) Upon the occurrence of a Force Majeure I3vent;
(c) In the event of any delay by Host Customer in fulfilling its obligations under this
Agreement, including without limitation its obligations pursuant to Article VIII
(Access and Space Provisions); and
(d) In the event of any delay outside of the reasonable control of System Owner with
respect to obtaining any Governmental Approvals,
Section 15.3 Termination due to Hazardous Materials or Contamination Discovery. In the
event that I -lost Customer fails to remove and remediate hazardous materials or environmental
contamination pursuant to Section 3. 1.1 (Hazardous Materials or Contamination Discovery)
within sixty (60) days of receiving a notice of discovery from System Owner, then System
Owner shall have the right to terminate this Agreement upon written notice to Ilost Customer.
Upon such termination, Host Customer shall pay System Owner an amount equal to System
Owner's actual costs incurred and obligated to be incurred with respect to the System and this
Agreement prior to such termination.
Section 15.4 Termination for Default.
Section 15.4.1 Upon the occurrence and during the continuation of may Event of
Default hereunder, the non -defaulting Party shall have the right to terminate this Agreement
upon ten (10) clays' prior written notice to the defaulting Party. Without limitation of and
notwithstanding the foregoing, if there has occurred a I lost Customer default, System Owner
shall have a period of nine (9) months from the occurrence of such default during which it may
elect to exercise in its sole discretion, by written notice to Host Customer, cithcr of "Option A"
and "Option B" in Exhibit II (Early Termination Payment), attached hereto, in which event, Host
Customer shall pay System Owner the mmotmts established in accordance with the applicable
provisions of Option A or Option B and thereafter I lost Customer shall have no further liability
in connection with such Event of Default and the termination of this Agreement.
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Section 15.4.2 At all times following an Event of Default by the Host Customer until
the termination of this Agreement as provided in this Section 15.4, System Owner shall have the
right but not the obligation to deliver the Output to the Most Customer, and the Host Customer
shall be obligated to purchase and pay for such Output in accordance with this Agreement.
Section 15.4.3 Host Customer and System Owner may each exercise any right or
remedy that may be available to it under this Agreement in law or equity to enforce the terms of
this Agreement or to recover damages for the breach hereof. Such rights and remedies shall all
be cumulative and not exclusive and may be exercised concurrently or successively.
Section 15.5 Termination due to Force Majeure Event. Either Party shall be entitled to
terminate this Agreement upon thirty (30) days' prior written notice to the other Party if any
Force Majeure Event affecting the non -terminating Party has been in existence for a period of
ninety (90) days or longer, unless such Force Majeure Event ceases prior to the expiration of
such thirty (30) day period.
ARTICLE XVI
OPTIONS UPON EXPIRATION
Section 16.1 Options. Upon expiration of this Agreement, Host Customer shall have the
option either to: (a) purchase the System at fair market value, as agreed upon by the Parties; (b)
negotiate with System Owner in good faith to extend the term of this Agreement by five (5)
years at a mutually -agreeable price; or (c) instruct the System Owner to remove the System and
restore the Site to its original condition.
Section 16.2 Operations and Maintenance Agreement. In the event that Host Customer
takes title to the System upon expiration of this Agi-coment, upon Host Customer's request,
System Owner agrees to negotiate in good faith with Host Customer with respect to an
arrangement for the ongoing operation and maintenance of the System.
ARTICLE XVII
LIABILITY; INDEMNIFICATION
Section 17.1 Liability and Responsibility.
Section 17.1.1 Host Customer, Host Customer agrees to pay System Owner for ally
repairs to, direct or indirect harm to, or loss of System Owner's personal property or fixtures on
the Premises, including the System, or loss, damage, expense or liability resulting from injury to
or death of porsons, to the extent caused by the gross negligence, recklessness or willful
misconduct of Host Customer or any of its contractors, agents, employees, partners, owners,
subsidiaries, affiliates oinvitees. Host Customer may meet its obligations under this Section
17.1 (Liability and Responsibility) from any insurance proceeds that I -lost Custonner may obtain.
Section 17.1.2 System Owner. System Owner agrees to pay I lost Customer for any
repairs to, direct or indirect harm to, or loss of Host Customer's personal property or fixtures on
the Premises, or loss, damage, expense or liability resulting from injury to or death of persons, to
the extent caused by System Owner or any of its contractors, agents, employees, partners,
17
owners, subsidiaries or affiliates. System Owner may meet its obligations under this Section
17.1 (Liability and Responsibility) from any insurance proceeds that System Owner may obtain,
Fresno Solar LLC will own, operate, maintain and insure the PV system
Section 17.2 Disruption in Delivery. In the event that System Owner is capable of generating
and delivering Output to I-lost Customer, but as a result of Host Customer's negligence,
recklessness, or willful misconduct, Host Customer does not accept delivery of'such Output (or
as a result of Host Customer's change to the BES, Host Customer is unable to accept delivery of
such Output), Host Customer agrees to pay System Owner the sum of (a) the amount of kWh for
which delivery was disrupted, on a pro Tato basis, based on the Output estimates provided in
Exhibit C (Monthly Estimates) times the Solar Electricity Price and (b) the value of the
Envirounental Credits that were foregone due to such delivery disruption, based upon market
value of such Environmental Credits at the time of such delivery disruption.
Section 17.3 Consequential Damages and Limitation of Liability. Except as expressly
provided for herein, neither Party will be liable, even if given prior notice, to the other for
special, indirect or consequential damages arising out of the performance or non-performance of
this Agreement, whether caused by negligence, tort, strict liability, breach of contract, or breach
of warranty, including but not limited to damages in the nature of loss profits or revenues, loss of
use of facilities, or equipment, and claims of third parties or inability to perform contracts with
third parties, except to the extent such damages are caused by the gross negligence, recklessness
of willful misconduct of such Party, In no event will the liability of System Owner due to any
claim or cause arising out of this Agreement exceed the total value of all amounts paid by I-Iost
Customer to System Owner under this Agreement prior to System Owner's payment to Host
Customer of such claim plus all amounts reasonably estimated to be due from Host Customer to
System Owner under this Agreement thereafter.
Section 17.4 Indemnification.
Section 17.4.1 Indemnification by System Owner. To the furthest extent allowed by
law, including California Civil Code Section 2782, System Owner shall indemnify, hold
harmless and defend Host Customer and each of its officers, officials, employees, agents and
volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages
(whether in contract, tort or strict liability, including, but not limited to personal injury, death at
any time and property damage) incurred by Host Customer, System Owner orally other person,
and from any and all claims, dennands and actions in law or equity (including attorney's fees and
litigation expenses), arising or alleged to have arisen directly or indirectly out of performance of
the Systema or under this Agreement. System Owner's obligations under the preceding sentence
shall apply regardless of whether Host Customer or any of its officers, officials, employees,
agents or volunteers are passively negligent, but shall not apply to any loss, liability, fines,
penalties, forfeitures, costs or damages caused by the active negligence or willful misconduct of
Host Customer or any of its officers, officials, employees, agents or volunteers. If System
Owner should subcontract all or any portion of the System work , System Owner shall require
cacti subcontractor to indemnify, hold harmless and defend host Customer and each of its
officers, officials, employees, agents, and volunteers in accordance with the terms of the
preceding sentence.
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Section 17.4.2 Indemnification by host Customer.
(a) To the maximum extent permitted by law, Host Customer (the
"Indenunifyiine Party") shall defend, indemnify and hold harmless System
Owner and the directors, officers, shareholders, partners, agents and
employees of such other Party, and the affiliates of the same (collectively,
the "Indemnified Parties"), from and against all third party claims of loss,
damage, expense and liability (including court costs and reasonable
attorney's fees) resulting from injury to or death of persons, and damage
to or loss of real or personal property, to the extent caused by the gross
negligence, recklessness or willful misconduct of the Indemnifying Party,
in connection with this Agreement.
(b) The hndemnifying Party shall have the right to defend an Indemnified
Party by counsel of the Indemnifying Party's selection, with respect to any
claims within the indemnification obligations hereof. The Indemnified
Party shall give the Indemnifying Party prompt written notice of any
asserted claims or actions indemnified against hereunder and shall
cooperate with the Indemnifying Party in the defense of any such claims
or actions. No Indemnified Party shall settle any such claims or actions
without prior written consent of the Indemnifying Party.
Section 17.5 Survival. The provisions of this Article XVII (Liability; Indemnification) shall
survive the expiration or termination of this Agreement.
ARTICLE XVIII
LIMITED WARRANTY; INTERRUPTION OF SERVICE
Section 18.1 System Performance. System Owner hereby warrants the sufficient performance
of the System during the Service `Perm. To the extent that the System does not perform properly,
System Owner agrees, as part of its operation and maintenance obligations hereunder, to
purchase such equipment and undertake such labor to bring the System into proper performance.
Such warranty includes all components and labor costs associated with keeping the System in
proper working order. System Owner shall retain any and all rights to manufacturer's warranties
and any warranties with respect to the work of contractors or subcontractors during the Service
Term in order to meet its obligations to maintain the proper performance of the System.
Section 18.2 Transfer to host Customer. Upon transfer of ownership of the System to Host
Customer under this Agreement, System Owner agrees to pass-through and to transfer to Host
Customer array applicable manufacturers' warranties provided on the System, as provided in
Exhibit E (Perf'onnnance Specifications), attached hereto. Such warranties include any guarantee,
reflective of the passage of time, of the System nameplate rating in standard test conditions and
any other express or implied warranty that may be transferable to 1 -lost Customer from the
manufacturer, designer or installer of the System. Following any such transfer of ownership to
Host Customer, the Servicc Tornn shall end, and System Owner shall have no further obligation
with respect to the performance of any part of the System.
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Section 18.3 Interruptions Are Expected
Section 18.3.1 System Owner shall use reasonable care to ensure the operation of the
System and supply of Output. However, the Parties explicitly acknowledge and understand that
the System is comprised of intermittent generation facilities, and will not provide Host Customer
with all uninterrupted supply of Electricity. Given weather and other conditions beyond the
control of System Owner, this Agreement provides no warranty or guarantee for any particular
level of Output to Host Customer. System Owner shall not be liable for any special, direct,
indirect, consequential or incidental damages caused by or resulting from any interruption in
Output during the Service Term, nor shall System Owner be responsible for the cost of
alternative supplies of Electricity during any interruption. If Output is interrupted, System
Owner will make commercially reasonable efforts to restore Output in a timely manner.
Section 18.3.2 Host Customer shall not install, or permit to be installed, on the
Premises (or any other property owned or controlled by Host Customer) any physical obstruction
to the operation of the System.
Section '18.4 Reasons for System Owner's Interruption of Output. Notwithstanding
anything to the contrary herein, System Owner shall have the right to interrupt, reduce or
discontinue the delivery of Output for purposes of inspection, maintenance, repair, replacement,
construction, installation, removal or alteration of the equipment used for the production or
delivery of Output. System Owner shall use reasonable efforts to give written notice to Host
Customer of any expected interruption of delivery of Output at least five (5) Business Days prior
to the date of any interruption and shall use its reasonable efforts to inform Host Customer of the
expected length of any interruption and to schedule such interruption to minimize disruption to
Host Customer and the use of its Premises. Notwithstanding the foregoing, System Owner shall
not be required to supply Output to host Customer at any time System Owner reasonably
believes BES to be unsafe. System Owner reserves the right to curtail Output if so directed by
authorized governmental authorities or electric utilities.
Section 18.5 Cost to Restore Service Following ILrterruption. System Owner shall bear any
costs associated with restoring service following any interruption of Output as part of System
Owner's operation of the System; provided, however, that, if interruptions of Output are caused
directly by the actions or inactions of Most Customer, then I -lost Customer agrees to bear the
incremental costs associated with the restoration of the delivery of Output.
ARTICLE XIX
INSURANCE
Section 19.1 System Owner's Insurance Throughout the Interim Term and Service Term of
this Agreement, as applicable, System Owner or its contractus shall pay for and maintain in full
force and effect all policies of insurance as provided in Exhibit 1.
ARTICLE XX
ASSIGNMENT
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Section 20.1 Assignment by Host Customer. Host Customer may not assign this Agreement
without the consent of System Owner.
Section 20.2 Assignment by System Owner. System Owner may not assign this Agreement
without the consent of Host Customer; paovidcd, however, that System Owner may, without the
consent of Host Customer, collaterally assign its rights and obligations under this Agreement in
connection with any financing of the System. Bost Customer agrees to use commercially
reasonable efforts to provide ackuowledgernents or consents requested by financing parties in
conjunction with such financing.
ARTICLE XXI
MISCELLANEOUS
Section 21.1 Disputes. Any dispute, controversy or claim (each, a "Dispute") arising out of or
relating to this Agreement orally breach or alleged breach hereof, upon the agreement of the
Parties, first shall be submitted to mediation. Said mediation shall commence no later than 30
days after submission of the Dispute and shall be conducted at the locality where the Premises
are situated and in accordance with the then prevailing rules of the Construction Industry
Mediation 12ules of the American Arbitration Association. In the event that the Dispute is not
resolved pursuant to mediation or, in the event the Parties do not agree upon submission of the
Dispute to mediation, each Party may pursue any rights and remedies as each may have, whether
in law or at. equity. Lxccpt to the extent that this Agreement expressly permits a party to suspend
performance, pending final resolution of a Dispute, the Parties shall each proceed diligently and
faithfully with performance of their respective obligations under this Agreement; provided,
however, in no event shall System Owner be obligated to deliver Output in the event that 1 -lost
Customer is in Default of its payment obligations to System Owner hereunder.
Section 21.2 Confidentiality.
Section 21.2.1 Host Customer is a municipal corporation subject to the California
hreedom of Information Act and other laws, rules and policies affording members of the public
certain rights to information about Host Customer's business dealings. To the extent consistent
with such laws, Host Customer agrees (i) to keep confidential the terms and conditions of this
Agreement and its performance by both Parties, and (ii) not to disclose to any third parties tine
terms of this Agreement or costs incurred by either Party under this Agreement, without System
Owner's prior written consent, such consent not to be unreasonably withhold, conditioned or
delayed. host Customer shall notify System Owner of any requests by any Person for such
information. 'to the extent allowable by law, System Owner agrees to keep confidential all
documents, utility bills, architectural and mechanical plans, and any other information provided
to System Owner by Host Customer during the Service "Perm of this Agreement and thereafter.
Section 21.2.2 Notwithstanding anything to the contrary set forth heroin or in any other
agreement to which the Parties are parties or by which they are bound, the obligations of
confidentiality contained herein and therein, as they relate to the transaction, shall not apply to
the U.S. federal tax structure or U.S. federal tax treatment of the transaction, and each Party (and
any employee, representative, or agent of any party hereto) may disclose to any and all persons,
withoutlimitation of any kind, the U.S. federal tax structure and U.S. federal tax treatment of the
21
transaction. The preceding sentence is intended to cause the transaction not to be treated as
having been offered under conditions of confidentiality for purposes of Section 1.6011-4(b)(3)
(or any successor provision) of the Treasury Regulations promulgated under Section 6011 of the
Code and shall be construed in a manner consistent with such purpose. In addition, each Party
acknowledges that it has no proprietary or exclusive rights to the tax structure of the transaction
or any tax matter or tax idea related to the transaction.
Section 21.3 Notices and Changes of Address. All notices to be given by either Party to the
other shall be in writing and must be either delivered or mailed by registered or certified marl,
return receipt requested, or expresses overnight delivery service addressed as follows:
If to System Owner:
Fresno Solar, LLC
12970 13arhart Avenue
Suite 110
Auburn, CA 95602
Attention: CEO
If to Host Customer:
City of Fresno
Attention:
or such other addresses as either Party may hereinafter designate by notice to the other. Notices
are doomed delivered or given and become effective upon mailing if mailed as aforesaid and
upon actual receipt if otherwise delivered.
Section 21.4 Applicable Law and Jurisdiction. This Agreement is made and shall be
interpreted and enforced in accordance with the laws of the State of California Each of host
Customer and System Owner hereby consents and submits to the personal ,jurisdiction of the
courts of the State of California.
Section 21.5 Complete Agreement. This Agreement, together with any documents expressly
incorporated herein by reference, shall constitute the entire Agreement between both parties
regarding the subject matter hereof and supersedes all prior agreements, understandings,
representations, and statements, whether oral or written. There are no agreements,
understandings, or covenants between the parties of any kind, expressed or implied, oral or
otherwise pertaining to the rights and obligations set forth heroin that have not been set forth in
this Agreement.
22
Section 21.6 No Amendment. This Agreement may not be amended, modified or terminated
except by a writing signed by the parties hereto.
Section 21.7 Energy Audit. Any energy audit that may be authored by System Owner(s)
including any summaries, excerpts, and abstracts thereof (collectively, the "Energy Audit ), are
used to show operational and consumption data and calculations and projections regarding
savings, but do not reflect the savings guaranteed by System Owner; in the event of any conflict
or contradiction between the Energy Audit and the provisions of this Agreement, the provisions
of this Agreement shall govern.
Section 21.8 Further Documents. The Parties shall timely execute and deliver all documents
and perform all further acts that may be reasonably necessary to effectuate the provisions of this
Agreement.
Section 21.9 Severability. If any part of this Agreement is deemed to be unlawful, invalid,
void or otherwise unenforceable, the rights and obligations of the Parties shall be reduced only to
the extent required to remove the invalidity or unenf ireeabilit y.
Section 21.10 Counterparts. This Agreement may be executed in several counterparts, each of
which when executed shall be deemed to be an original, but all together shall constitute but one
and the same Agreement.
Section 21.11 Neutral Interpretation. The Parties acknowledge that this is a negotiated
Agreement and, in the event of any dispute over its meaning or application, this Agreement shall
be interpreted fairly and reasonably and neither more strongly for, nor more strongly against,
either Party. Any headings or captions contained in this Agreement are for reference purposes
only and are in no way to be construed to interpret, define or limit the scope, extent or intent of
this Agreement or any provision hereof.
Section 21.12 No Waiver. The failure of a Party to enforce any tern of this Agreement or a
Party's waiver of the nonperformance of a term by the other Party shall not be construed as a
general waiver or amendment of that term, but the term shall remain in effect and enforceable in
the future. This Agreement can be amended only by written agreement of the Parties.
Section 21.13 Survival. Any provisions necessary to give effect to the intent of the Parties
hereunder after the termination of this Agreement shall survive the termination of this
Agreement, including without limitation Section 21.1 (Disputes).
Section 21.14 Marketing. System Owner shall have the right to promote tate installation and
usage of the installed System through any means, including through press releases, case studies,
published material, Internet websites and sales literature. Host Customer shall have the right to
promote the installation of the System in accordance with the guidelines of the California Solar
Initiative criteria; provided, however, that Host Customer agrees to provide System Owner the
Opportunity to review and edit all marketing materials regarding the System. I-lost Customer
agrees to provide space within the Promises for an information kiosk, provided at System
Owner's expense, regarding the System; provided, however, that Host Customer shall have the
right to review and approve the location and aesthetic qualities o1'such kiosk.
23
CSiguature page Roll as]
24
IN WITNESS WHEREOF, the duly authorized representatives of the Parties have each
executed this Agreement, effective as of the date first above written.
CITY OF FRESNO
a Municipal Corporation
.By:
Name:
Title:
ATTEST:
YVON E SPENCE, CMC
City C k
t3y: � to v
ep ty
APPROVED ASWEZ
M:
.TAMES C.
City Attor
Bvl '�
Ialiakolluri-Earbicl£ Date 1111�3)`rI-
Deputy
CITY:
City of Fresno
Phone:
Fax:
25
Fresno Solar, LLC
A Delaware Limited Liability Company
DavidW. Dwelle
Authorized Signatory
Fresno Solar, LLC
12970 Earhart Avenue
Suite 110
Auburn, CA 95602
Phone: 530-887-1984
Fax: 530-887-1986
'I7Jc System plan is described in drawing:
EXHIBIT A
System
! 'sus NV Id BJJS
0
0.
Solar Electricity Price
For 20 years, System Owner will sell electricity production from solar electric power
system at the following rates and under the terms and conditions listed in this agreement and this
exhibit.
EXHIBIT C
Monthly Estimates
Estimated production of the system is predicted as follows, based on use of fixed tilt rooftop
system. System Owner reserves the right to utilize any CEC approved PV module or technology.
Annual Production EstiniatcsAcar 1
PixedTiltPV Modules, 170kWde —249.83 MWh1yr
Total annual kWh production per year is influenced in part on module technology and the
available solar resource.
EXHIBIT D
[Deleted]
EXHIBIT r
Component Specifications
_.
Component
--- -.._.-_—...-...-_.._.......
Manufacturer
_.__.._...._- —
Model
---
Quantity
SolarModules^
—.
l..G
---------- —..._._.__._._...._..._....-.......
I,G225P1C-G2
----
756
Inverter
Satcon
.-- —
PVS-210-480
--- —
1
Carpc».t Structures
I1
DC Disconnects
/ns Ruluired
6�s Required —___
System Owner reserves 1110 right to Change modules or inverters in type, quantity or mix, as
long as the selected Components meet C)C approval et time of commissioning.
EXHIBIT F
Request for Proposals
EXIIIBIT G
System Owner's Proposal
EXHIBIT it
EARLY TERMINATION PAYMENT
Od2tion A
This Agreement shall terminate and System Owner shall transfer title to the System to Host
Customer free and clear of liens and encumbrances upon the payment by Host Customer of the
Early Termination Payment set forth in the following table corresponding with the date on which
such termination occurs plus all other amounts clue and payable to the System Owner hereunder
as of the termination date.
1
$1,345,507
2
$1,304,794
3
$1,250,226
4
$1,194,302
5
$1,136,988
6
$1,078,250
7
$1,018,052
8
$956,359
9
$893,133
10
$828,336
11
$761,930
12
$693,873
13
$624,125
14
$552,644
15
$479,388
16
$404,311
17
$327,368
18
$248,514
19
$167,701
Termination of this Agreement, transfer of title and the payment of the I'sarly Termination
Payment shall take place not more than thirty (30) days following notice from System Owner to
Host Customer of its election to exercise this Option A as provided in Section 15.4 of this
Agreement. System Owner shall deliver to Host Customer all necessary and customary
documents to effect the transfer of the System.
Option B
System Owner may terminate this Agreement and remove the System from the Host Customer's
Premises, and the Host Customer shall pay the System Owner an Early Termination Payment
equal to the sum of (1) loss of revenue and other economic benefits of the System that otherwise
would have been earned under or in connection with this Agreement for the period from the date
of the disconnection of the System from the BES to the start up of the System at an alternate
location, less an amount equal to the variable operating costs that the System Owner would have
incurred in such period, which period, for purposes of calculating the Early Termination
Payment, shall not exceed ninety (90) days, and (2) all other amounts due and payable to the
System Owner hereunder as of the date of termination, Termination of this Agreement, removal
of the System and payment of the Carly Termination Payment shall take place within sixty (60)
days of written notice fi•onn System Owner. The System Owner shall thercaller promptly restore
the Site to its condition prior to the construction and installation of the System.
34
EXHIBIT I
INSURANCE REQUIREMENTS
Minimum Scope of Insurance
Coverage shall be at least as broad as:
1 The most current version of insurance Services Office (ISO) Commercial General Liability
Coverage Form CG 00 01, which shall incude insurance for "bodily injury," "property damage" and
"personal and advertising injury" with coverage for premises and operations, products and completed
operations, and contractual liability.
2 The most current version of II1SUFan0e Service Office (ISO) Business Awn Coverage Form CA 00
01, which shall include coverage for all owned, hired, and non -owned automobiles or other licensed
vehicles (Code 1- Any Auto).
3 Workers' Compensation insurance as required by the California Labor Code and Employer's
Liability Insurance,
4 Professional Liability (1:rrors and Omissions) insurance appropriatc to SYS FM OWNER'S
profession, Architect's and engineer's coverage is to be endorsed to include contractual liability.
Minimum Limits of Insurance
SYSTEM OWNEiR shall maintain limits of liability of not less than:
L General Liability:
$1,000,000 per occurrence for bodily injury and property damage $1,000,000 per occurrence for
Personal and advertising injury $2,000,000 aggregate for products and completed operations
$2,000,000 general aggregate applying separately to the work performed under the Agreement
2. Automobile Liability:
51,000,000 per accident for bodily injury and property damage
3 Employer's Liability:
$1,000,000 each accident for bodily injury
$1,000,000 disease each employee
$1,000,000 disease policy limit
4, Professional Liability (Errors and Omissions)
$1,000,000 perclahn/occurrence
$2,000,000 policy aggregate
Lhubrella or Excess Insurance
In the event SYSTEM OWNER purchases an Umbrella or Excess insurance policy(ics) to meet the
"Minimum Limits of Insurance," this insurance policy(ics) shall "follow form" and afford no less
coverage than (lie primary insurance policy(ics).
Deductibles and Self -Insured Retentions
SYSTEM OWNER shall be responsible for payment of any deductibles contained in any insurance
policy(ics) required hereunder and SYSTEM OWNER shall also be responsible for paynnent of any self -
35
insured retentions. Any deductibles or self-insured retentions must be declared to, and approved by, the
HOST CUS'TOMER'S Risk Manager or bis/her designee. At the option of the HOST CUSTOMER'S
Risk Manager or his/her designee, either (i) the insurer shall reduce or eliminate such deductibles or self-
insured retentions as respects HOST CUSTOMER, its officers, officials, employees, agents and
volunteers; or (ii) SYSTEM OWNER shall provide a futancial guarantee, satisfactory to HOST
CUSTOMER'S Risk Manager or his/her designee, guaranteeing payment of losses and related
investigations, claim administration and defense expenses. At no time shall HOST CUSTOMER be
responsible for the payment of any deductibles or self-insured retentions.
Other Insurance Provisions
The Ounet�al Liabilitv and Automobile Li2dnilit insurance _policies arc to contain, or be endorsed to
contain, the following provisions:
I HOST CUSTOMER, its officers, officials, employees, agents and volunteers are to be covered as
additional insureds.
2 The coverage shall contain no special limitations on the scope of protcction afforded to HOST
CUSTOMER, its officers, officials, employers, agents and volunteers.
3 SYSTEM OWNER'S insurance coverage shall be primary and no contribution shall be required
of HOST CUSTOMER.
The Workers' Compensation insurance policy is to contain, or be endorsed to contain, the following
provision: SYSTEM OWNER and its insurer shall waive any right of subrogation against HOST
CUSTOMER, its officers, officials, employees, agents and volunteers.
If (lie Professional Liability (Errors and Omissions insurance policis written on a claims -made form:
I The "Retro Date" must be shown, and must be bclbre the effcctive date of the Agreement or the
commencement of work by SYSTEM OWNER,
2. Insurance must be maintained and evidence of insurance most be provided for at least 5
years after any expiration or termination of the Agreement or, in the alternative, the policy shall be
endorsed to provide not less than a 5 -year
discovery period. This requirement shall survive expiration or termination of the Agreement.
2 If coverage is canceled or non -renewed, and mol replaced with another claims -made policy form
with a "Retro Date" prior to the effective date of the Agreement, SYSTEM OWNfiR must purchase
"extended reporting" coverage for a mininnun of S years following the expiration or termination of the
Agrecinent.
3 A copy of the claims reporting requirements must be submitted to HOST CUSTOMER for
review.
These requirement's shall survive expiration or termination of the Agreement.
All policies of,ipstillsnco required hereunder shall be endorsed to provide that the coverage shall not be
cancelled, non-renowed, reduced in coverage or in limits except after 30 calendar day written notice by
certified mail, return receipt requested, has been give)) to HOST CUSTOMI3R, Upon issuance by the
insurer, broker, or agent of a notice of cancellation, non -renewal, or reduction in coverage or in limits,
SYSTEM OWNER shall furnish HOST CUSTOMER with a new certificate and applicable endorsements
for such policy(ics). In the event any policy is due to expire during the work to be perl'orrned for HOST
CUSTOMER, SYSTEM OWNER shall provide a now certificate, and applicable endorsements,
evidencing renewal of such policy not less than 15 calendar days prior to the expiration date of the
expiring policy.
36
Acceptability of Insurers
All.policigs oof fi surance required hereunder shall be placed with an insurance compatly(ies) admittsd by
the California Insmance Commissioner to do business in the Stant of California and rated not less than
"A -VII" in Best's Insurance Rating Guide; or authorized by HOST CUSTOMER'S Risk Manager.
Vex-ification of Coverage
SYSTEM OWNER shall furnish HOST CUSTOMER with all certificatc(s) and applicable
endorsements effecting coverage required hereunder. All certificates and applicable endorsements are
to be received and approved by the HOST CUSTOMER'S Risk Manager or his/her designee prior to
HOST CUSTOME;R'S execution of the Agreement and before work commences.
37
City of
rn��"' ��►� REPORT TO THE CITY COUNCIL
November 18, 2010
FROM:
THROUGH:
BY:
AGENDA ITEM NO. q: i 5a m* I C
COUNCIL MEETING: 11/18/2010
APPROVED BY
DEPARTMENT DIRECTO
CITY MANAGER
JOHN M. DUGAN, Director L -
Development and Resource Management Department
KEITH BERGTHOLD, Assistant Director/
Development and Resource Management Department
JOSEPH W. OLDHAM, Sustainability Manager
Sustainable Fresno Division, Development and esource Management Department
SUBJECT: AUTHORIZE PRIVATE SOLAR PHOTOVOLTAIC PROJECT AT CITY CONVENTION
CENTER
1. ADOPT CEQA CATEGORICAL EXEMPTION PURSUANT TO GUIDELINES ARTICLE 19,
SECTION 153011CLASS 1 (EXISTING FACILITIES), SECTION 15329/CLASS 29
(COGENERATION PROJECTS AT EXISTING FACILITIES) AND SECTION 15332/CLASS
32 (INFILL DEVELOPMENT PROJECTS), TO AUTHORIZE DEVELOPMENT AND
OPERATION OF A PRIVATE SOLAR PHOTOVOLTAIC PROJECT AT THE FRESNO
CONVENTION CENTER
2. AUTHORIZE PACIFIC POWER RENEWABLES OF AUBURN, CA, TO DEVELOP AND
OPERATE A PRIVATE SOLAR PHOTOVOLTAIC PROJECT AT THE FRESNO
CONVENTION CENTER AND CITY'S PURCHASE OF POWER GENERATED AND ALL
ACTIONS NECESSARY THERETO, AND AUTHORIZE THE DIRECTOR OF THE
DEVELOPMENT AND RESOURCE MANAGEMENT DEPARTMENT TO EXECUTE
DOCUMENTS, SUBJECT TO CITY ATTORNEY APPROVAL TO FORM -RFP BID FILE 3023
RECOMMENDATIONS
Staff recommends that the City Council authorize a private solar photovoltaic project at the City Convention
Center and:
1. Adopt CEQA categorical exemption pursuant to guidelines Article 19, Section 15301/Class 1
(Existing Facilities), Section 15329/Class 29 (Cogeneration Projects at Existing Facilities)
and Section 15332/Class 32 (Infill Development Projects), to authorize development and
operation of a private solar photovoltaic project at the Fresno Convention Center, and
2. Authorize Pacific Power Renewables of Auburn, CA, to develop and operate a private solar
photovoltaic project at the Fresno Convention Center and city's purchase of power generated
and all actions necessary thereto, and authorize the Director of the Development and Resource
Management Department to execute documents, subject to City Attorney approval as to form.
Presented to city Co 1`161 ! C
Date
Dispositions
REPORT TO THE CITY COUNCIL
Authorize solar PPA at Fresno Convention Center
Nov. 18, 2010
Page 2
EXECUTIVE SUMMARY
The Sustainable Fresno Division of the Development and Resource Management Department has been
working in collaboration with the General Services Department to deploy more renewable energy in the form of
solar photovoltaic systems on city -owned facilities since July, 2009. The focus of these efforts has been on
using a Power Purchase Agreement (PPA) type of contract where the city does not purchase or own the
systems, but only agrees to purchase the power from the arrays on an annual fixed price per kilowatt hour
(kwh) basis over a period of typically 20 years. All up -front and on-going costs for construction and
maintenance of the arrays are born by the solar power provider; not by the City of Fresno. The PPA type of
solar deployment was first successfully used by the City of Fresno in 2007 at Fresno Yosemite International
Airport with installation of over 2 megawatts of solar power on Airport property and the Airport's agreement to
purchase the power from those arrays over 20 years.
The Sustainable Fresno Division analyzed the energy usage for all city -owned facilities using 2008 and 2009
meter data from PG&E. A list of twenty-four (24) sites was chosen for a Request for Proposal (RFP) based on
the cost per kilowatt hour paid by the city for those specific sites in those years and information from solar
providers as to the potential for solar power to compete favorably with current city costs.
The RFP was advertised on August 9, 2010 and five (5) proposals received and opened at a public bid
opening on September 9, 2010. A review committee made up of representatives from the Police Department,
Fire Department, Finance Department, Pacific Gas and Electric Company, a private energy consultant, and the
Sustainable Fresno Division was established to evaluate the proposals. After a comprehensive review, the
evaluation committee determined that the proposal from Pacific Power Renewables of Auburn, CA, for a 797
kW solar array on the roof of Selland Arena, a 201 kW solar array mounted on carport structures in the parking
lot of Selland Arena, a 298 kW roof mounted solar array on Valdez Hall, and a 499 kW solar array mounted on
carport structures in the parking lot of Valdez Hall, represented the best immediate value for the City of Fresno.
The proposal offers an immediate savings of 10% on the 1,976,000 kwh of electricity annually generated from
the roof mounted systems on Selland Arena and Valdez Hall compared to current city costs from PG&E. The
parking structure mounted arrays offer an immediate 5% savings for the 1,228,000 kwh of electricity generated
annually compared to current city cost from PG&E. In addition to the direct electricity cost savings, the
proposal also offers a 2% savings in escalation costs compared to historic rate increases from PG&E. The
total annual savings for the project is $42,642.
Staff has determined that the proposed project at the Convention Center is categorically exempt from CEQA
pursuant to guidelines Article 19, Section 15301/Class 1 (Existing Facilities), Section 15329/Class 29
(Cogeneration Projects at Existing Facilities) and Section 15332/Class 32 (Infill Development Projects).
Staff recommends the City Council authorize Pacific Power Renewables of Auburn, CA, to develop and
operate a private solar photovoltaic project at the Fresno Convention Center and city's purchase of power
generated and all actions necessary thereto, and authorize the Director of the Development and Resource
Management Department to execute documents, subject to City Attorney approval as to form.
2
REPORT TO THE CITY COUNCIL
Authorize solar PPA at Fresno Convention Center
Nov. 18, 2010
Page 3
The Sustainable Fresno Division of the Development and Resource Management Department has been
working in collaboration with the General Services Department to deploy more renewable energy in the form of
solar photovoltaic systems on city -owned facilities since July, 2009. The focus of these efforts has been on
using a Power Purchase Agreement type of contract where the city does not purchase or own the systems, but
only agrees to purchase the power from the arrays on an annual fixed price per kilowatt hour (kwh) basis over
a period of typically 20 years. All up -front and on-going costs for construction and maintenance of the arrays
are born by the solar power provider; not by the City of Fresno. The PPA type of solar deployment was first
successfully used by the City of Fresno in 2007 at Fresno Yosemite International Airport with installation of
over 2 megawatts of solar power on Airport property and the Airport's agreement to purchase the power from
those arrays over 20 years.
To determine the city -owned facility locations where a Power Purchase Agreement type of solar deployment
would be successful, the Sustainable Fresno Division analyzed the energy usage for all city -owned facilities
using 2008 and 2009 meter data from PG&E. A list of twenty-four (24) sites was chosen for a Request for
Proposal (RFP) based on the cost per kilowatt hour paid by the city for those specific sites in those years and
information from solar providers as to the potential for solar power to compete favorably with current city costs.
The primary sites identified were the Convention Center, City Hall Annex, Regional Sports Complex, Police
Headquarters, the compressed natural gas (CNG) fueling station operated by Fresno Area Express (FAX),
fifteen (15) fire stations, and three (3) police substations. Emphasis was placed on top energy users and
locations that received funding through the General Fund to potentially help those department's budgets. City
Hall was also considered, but the unusual roof angle and lack of clear space in the parking lots made it
unsuitable.
The RFP was advertised in the Fresno Business Journal on August 9, 2010. Specifications were downloaded
by seventy-eight (78) interested parties through the City of Fresno Bids On -Line system. Five (5) proposals
were received and opened at a public bid opening on September 9, 2010. A review committee made up of
representatives from the Police Department, Fire Department, Finance Department, Pacific Gas and Electric
Company, a private energy consultant, and the Sustainable Fresno Division was established to evaluate the
proposals. The specifications allowed for the possibility of multiple awards and concurrent negotiations. The
evaluation committee determined that three of the five proposals were non-responsive either through
exceptions taken to city insurance and indemnification requirements or failure to supply information required in
the RFP. After a comprehensive review of the remaining two proposals, which included reference checks and
interviews with proposal teams from both companies, the evaluation committee determined that the proposal
from Pacific Power Renewables of Auburn, CA, for a 797 kW solar array on the roof of Selland Arena, a 201
kW solar array mounted on carports structures in the parking lot of Selland Arena, a 298 kW roof mounted
solar array on Valdez Hall, and a 499 kW solar array mounted on carport structures in the parking lot of Valdez
Hall, represented the best immediate value for the City of Fresno. The evaluation committee also
recommended the proposal from Pacific Power Renewables for a 442 kW solar array that would provide 100%
of the power for the Regional Sports Complex, but this proposal will require further environmental review
before it could be potentially be brought forward to Council for consideration. The evaluation committee also
considered the proposals from EcoPlexus for the FAX CNG fueling station, City Hall Annex, and Fire Station
19 worth further investigation and negotiation is underway on those sites.
REPORT TO THE CITY COUNCIL
Authorize solar PPA at Fresno Convention Center
Nov. 18, 2010
Page 4
The proposed arrays at the Convention Center equal over 1.7 megawatts of added solar generation for the city
and would reduce annual carbon emissions by 932 metric tons.
The economic benefit to the city from the proposal is an immediate cost savings of 10% on the 1,976,000 kwh
of electricity annually generated from the roof mounted systems on Selland Arena and Valdez Hall compared
to current city costs from PG&E. The parking structure mounted arrays offer an immediate 5% cost savings for
the 1,228,000 kwh of electricity generated annually compared to current city cost from PG&E. This is a direct
annual cost savings of $33,642 in electricity for the Convention Center. In addition to the direct savings the
proposal also offers a 2% savings in escalation costs compared to historic rate increases from PG&E. This
savings is equal to an additional $9,000 per year for a total annual cost savings of $42,642. 2009 electricity
cost for the Convention Center locations was $947,822.
Staff has determined that the proposed project at the Convention Center is categorically exempt from CEQA
pursuant to guidelines Article 19, Section 15301/Class 1 (Existing Facilities), Section 15329/Class 29
(Cogeneration Projects at Existing Facilities) and Section 15332/Class 32 (Infill Development Projects), and
recommends authorizing Pacific Power Renewables of Auburn, CA, to develop and operate a private solar
photovoltaic project at the Fresno Convention Center and city's purchase of power generated and all actions
necessary thereto, and authorize the Director of the Development and Resource Management Department to
execute documents, subject to City Attorney approval as to form..
FISCAL IMPACT
All costs for preparation of this RFP including research, data collection, and bid processing are paid for through
funding from the U.S. Department of Energy, Energy Efficiency and Conservation Block Grant program. All
costs associated with engineering, permitting, construction, and maintenance for the solar power arrays at the
Convention Center are born by the solar provider. The City of Fresno has no costs associated with this project
other than the agreement to purchase the power produced by the systems. There is no impact to the General
Fund from this project.
ATTACHMENTS
RFP List of Proposers
Report from Evaluation Committee for RFP # 3023
Comparison of Solar RFP Pricing: Bid File 3023
Environmental Assessment
LISTING OF PROPOSERS
Page 1
FOR: REQUEST FOR PROPOSALS FOR SOLAR PHOTOVOLTAIC GENERATING SYSTEM(S)
RFP No. 3023
RFP Opening: 09/09/2010
PROPOSER=S TOTAL PROPOSAL AMOUNT
(In alphabetical order)
EcoPlexus
101 Townsend Street —Ste. 312
San Francisco, CA 94107
Convention Center, 700 M Street N/B
Convention Center, 707 O Street $.17 per kwh
City Hall Annex, 2326 Fresno St. $.16 per kwh
Regional Sports Complex, 1707 W. Jensen Ave. $.15 per kwh
CNG Pumps, 2223 G Street $.18 per kwh
Fire Station #19, 3187 W. Belmont Ave. $.18 per kwh
2. Pacific Power Renewables
12970 Earhart Ave.
Auburn, CA 95602
Convention Center, 700 M Street
$.129 per kwh
Convention Center, 707 O Street
$.134 per kwh
City Hall Annex, 2326 Fresno St.
N/B
Regional Sports Complex, 1707 W. Jensen Ave.
$.144 per kwh
CNG Pumps, 2223 G Street
N/B
Fire Station #19, 3187 W. Belmont Ave.
N/B
3. Solar City (Non-responsive)
393 Vintage Park Drive, Suite 140
Foster City, CA 94404
Convention Center, 700 M Street
N/B
Convention Center, 707 O Street
$.16 per kwh
City Hall Annex, 2326 Fresno St.
$.22 per kwh
Regional Sports Complex, 1707 W. Jensen Ave.
$.18 per kwh
CNG Pumps, 2223 G Street
$.19 per kwh
Fire Station #19, 3187 W. Belmont Ave.
$.27 per kwh
4. 510 Nano (Non-responsive)
1101 30th Street, NW, Suite 510
Washington, CD 20007
Convention Center, 700 M Street $.156 per kwh
Convention Center, 707 O Street $.156 per kwh
City Hall Annex, 2326 Fresno St. $.156 per kwh
Regional Sports Complex, 1707 W. Jensen Ave. $.156 per kwh
CNG Pumps, 2223 G Street $.156 per kwh
Fire Station #19, 3187 W. Belmont Ave. $.156 per kwh
JAMy Documents\Sustainable Fresno\Solar Projects\3023 EvaI docs\3023 Solar RFP Eval 11-1-11 jo edits.docx
LISTING OF PROPOSERS
'' ''
FOR: REQUEST FOR PROPOSALS FOR SOLAR PHOTOVOLTAIC GENERATING SYSTEM(S)
RFP No. 3023
RFP Openin 09/09/2010
5. SunEdison (Non-responsive)
12500 Baltimore Ave.
Beltsville, MD 20705
Convention Center, 700 M Street
N/B
Convention Center, 707 O Street
$.17 per kwh
City Hall Annex, 2326 Fresno St.
N/B
Regional Sports Complex, 1707 W. Jensen Ave.
N/B
CNG Pumps, 2223 G Street
N/B
Fire Station #19, 3187 W. Belmont Ave.
N/B
Each proposer has agreed to allow the City one hundred twenty (120) days from date proposals
were opened to accept or reject their proposal.
DEPARTMENT CONCLUSIONS AND RECOMMENDATION:
fj Award a Power Purchase Agreement contract to Pacific Power Renewables for the
specific sites listed below in accordance with the Selection Committee
recommendation (see attached RFP Evaluation Committee Report).
[_) Reject all proposals. Reason:
Remarks: The award of a Power Purchase Agreement contract to Pacific Power
Renewables is recommended for the following specific site locations:
Convention Center, 700 M Street
Convention Center 707 O Street
Regional Sport Complex, 1707 W. Jensen Ave.
JAMy Documents\Sustainable Fresno\Solar Projects\3023 EvaI docs\3023 Solar RFP Eva] 11-1-11 jo edits.dou
LISTING OF PROPOSERS
Page 3
FOR: REQUEST FOR PROPOSALS FOR SOLAR PHOTOVOLTAIC GENERATING SYSTEM(S)
RFP No. 3023
RFP Opening: 09/09/2010
Department Head Approval
� - 004
fl-tieDevelopment and Resource Management Department Director
Date 11/04/2010
[_] Approve Dept. Recommendation
Recommendation
Lj Disapprove
[_] See Attachment
GENERAL SERVICES DEPARTMENT
(7 rj r
Purchasing Manager Date
Director ffate
L] Approve
L] Disapprove
CITY MANAGER
GSD/Purchasing
City Manager or Designee Date
JAMy Documents\Sustainable Fresno\Solar Projects\3023 Eval docs\3023 Solar RFP Eval 11-1-11 jo edits.dou
Report from Evaluation Committee
RFP No. 3023, Solar Photovoltaic Generating System(s)
REPORT FROM EVALUATION COMMITTEE
REQUEST FOR PROPOSAL FOR
SOLAR PHOTOVOLTAIC GENERATING SYSTEM(S)
COMMITTEE MEMBERS:
Rene Watahira, Police Department Administrative Manager
Phillip Hardcastle, Finance Department Principal Accountant
Keith Sipe, Fire Department Project Manager
Robert Riding, PG&E Community Energy Manager
John Richau, Energy Consultant
Joseph Oldham, Sustainability Manager
Jason MacDonald Purchasing Manager City of Fresno, General Services Dept. Purchasing Facilitator
BACKGROUND:
The goal of this Request for Proposal (RFP) was to solicit proposals to provide cost-effective solar power
for city -owned facilities using a Power Purchase Agreement (PPA) with a fixed price per kilowatt hour
(kwh) of power from the arrays that is less than current city costs and where the cost escalation from the
solar power provider is less than average cost increases from PG&E. Twenty-four (24) sites were selected
for potential solar power based on energy usage data from PG&E and cost per kilowatt hour for power
from 2008 and 2009. The sites were primarily General Fund facilities such as fire stations, police stations,
parking facilities, but also included were the Convention Center and the Regional Sports Complex.
Detailed energy usage data and site layout information was provided to all proposers. One hundred six
(106) sets of specifications for the project were downloaded from Bids On-line with five (5) proposals
submitted for review and evaluation on September 9, 2010.
EVALUATION BY COMMITTEE:
EcoPlexus
This proposer conformed to all the RFP requirements and offered proposals for twenty-three (23) of the
twenty-four (24) sites listed in the specifications. However, after comparing their cost proposals against
the current city cost for power at the sites, only three (3) locations appeared to be potential candidates for
implementation. The review committee recommended that further discussion and negotiation be done
with EcoPlexus regarding the three (3) potential cost-effective sites. The sites for continued negotiation
are the compressed natural gas (CNG) fueling station operated by Fresno Area Express, the City Hall
Annex, and Fire Station 19. An interview with EcoPlexus staff revealed that they did not fully understand
how the current solar power at the Fresno Area Express facility is used and city staff requested they
reexamine their proposal for that site in light of the information from the interview. It is possible that once
that re-examination is completed and a revised proposal submitted, staff will be bringing forward a second
award recommendation to the City Council. The references were checked and the response ranged from
satisfactory to excellent.
Pacific Power Renewables
This proposer conformed to all the RFP requirements and offered proposals for three (3) sites, the
Regional Sports Complex; Selland Arena and Valdez Hall at the Convention Center; and the parking lots
for Selland Arena and Valdez Hall at the Convention Center. The proposal for the Regional Sports
Complex consisted of ground -mounted arrays totaling 442 kW that offered an immediate 10% savings in
energy cost as compared with current city costs for the site which is currently equal to $16,000 per year.
The proposal for the building mounted arrays on Selland Arena and Valdez Hall at the Convention Center
offer an immediate 10% savings over the current cost of power for the facility from PG&E. The proposal
jArny documents\sustainab] e Fresno\solar projects\3023 eval docs\3023 draftcommittee report 11-3-10.doc
Report from Evaluation Committee
RFP No. 3023, Solar Photovoltaic Generating System(s)
for the parking structure mounted arrays in the parking lots of the Convention Center offer an immediate
5% savings over current city costs for the equivalent power from PG&E. The cost escalation factor for all
the proposed sites from Pacific Power Renewables is 2% less than average rate increases from PG&E.
The references were checked and the responses raged from good to excellent.
Solar City
This proposer took exception to the City of Fresno insurance and indemnification requirements in the
specifications in the RFP and the committee determined them to be non-responsive.
SunEdison Government Solutions, LLC
This proposer took exception to the City of Fresno insurance and indemnification requirements in the
specifications in the RFP and the committee determined them to be non-responsive.
510Nano. Inc.
This proposer did not conform to the specifications in the RFP and the committee determined them to be
non-responsive, because they failed to provide any technical details of the systems they proposed to
install for any of the sites listed as required in Section 2.0 of the specifications.
RECOMMENDATION
1. The Committee recommends entering into a Power Purchase Agreement with Pacific Power
Renewables for the purchase of solar power from arrays located at the Regional Sports Complex,
mounted on the roofs of Selland Arena and Valdez Hall at the Convention Center, and parking
structure mounted arrays in the parking lots of the Convention Center based on the goals of the RFP
and the proposal from Pacific Power Renewables resulting in immediate cost savings for the City of
Fresno at those locations.
See attached
Summary of Information Cost per KWH for Sites Submitted by Proposers
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CITY OF FRESNO
CATEGORICAL EXEMPTION
ENVIRONMENTAL ASSESSMENT NO. EA -10.133
THE PROJECT DESCRIBED HEREIN IS DETERMINED TO BE CATEGORICALLY
EXEMPT FROM THE PREPARATION OF ENVIRONMENTAL DOCUMENTS
PURSUANT TO ARTICLE 19 OF THE STATE CEQA GUIDELINES,
APPLICANT: Joseph Oldham
City of Fresno
Development and Resource Management Department
2600 Fresno Street, Third Floor
Fresno, CA 93721
PROJECT LOCATION: 700 'M' Street; Located at the City of Fresno Convention Center between 'M'
and '0' Streets, south of Inyo Street (APN: 468-400-01T)
PROJECT DESCRIPTION: Authorize Pacific Power Renewables of Auburn, CA, to develop and operate a
private solar photovoltaic project at the Fresno Convention Center.
This project is exempt under Sections 15301/Class 1, 15329/Class 29, and 15332/Class 32 of the State
of California CEQA Guidelines.
EXPLANATION:
A Class 1 exemption consists of, among other things, the addition to existing facilities, a Class 29
exemption consists of cogeneration projects at existing facilities, and a Class 32 exemption consists of
projects characterized as in -fill development meeting the following conditions; (a) the project is consistent
with the applicable general plan designation and all applicable general plan policies as well as with
applicable zoning designation and regulations, (b) the proposed development occurs within city limits on a
project site of no more than five acres substantially surrounded by urban uses, (c) the project site has no
value, as habitat for endangered, rare or threatened species, (d) approval of the project would not result in
any significant effects relating to traffic, noise, air quality, or water quality, and (e) the site can be adequately
served by all required utilities and public services.
The above described project consists of the addition of a solar photovoltaic system at the Fresno
Convention Center. The project involves the cogeneration of projects at the existing facility. The above
described project is consistent with the 2025 Fresno General Plan and the Central Area Community Plan
without negatively impacting the characteristics of the area and complies with all conditions described in
Sections 15332/Class 32, 15329/Class 29, and 15301/Class 1 of the CEQA Guidelines. No adverse
environmental impacts will occur as a result of the proposed project. Staff had determined that none of the
exceptions as set forth in Section 15300.2 of the CEQA Guidelines apply to the project.
No adverse environmental impacts will occur as a result of the proposed project.
Date: November 8, 2010
Submitted By: �_
Kevin Fabino, Pfau ng Manager
City of Fresno
Development and Resource Management Department
(559)621-8277
BU INE.
rRISNO 1 KINGS MADIRA I TUTARI I J0
P.O. Box 126
Fresno. CA 93707
Telephone (559) 490-3400
(Space Below for use of County Clerk only)
IN THE COUNTY OF FRESNO, STATE OF CALIFORNIA
NOTICE INVITING PROPOSALS AND SPECIFICATIONS
REQUEST FOR PROPOSALS FOR:
SOLAR PHOTOVOLTAIC GENERATING SYSTEM
BID FILE 3023
MISC. NOTICE
STATE OF CALIFORNIA
COUNTY OF FRESNO
I am a citizen of the United States and a resident of the
County aforesaid; I am over the age of eighteen years, and
not a party to or intrested in the above entitled matter. I am
the principal clerk of THE BUSINESS JOURNAL published
in the city of Fresno, County of Fresno, State of California,
Monday, Wednesday, Friday, and which newspaper has
been adjudged a newspaper of general circulation by the
Superior Court of the County of Fresno, State of California,
under the date of March 4, 1911, in Action No.14315; that
the notice of which the annexed is a printed copy, has been
published in each regular and entire issue of said newspaper
and not in any supplement thereof on the following dates,
to wit:
AUGUST 9, 2010
I declare under penalty of perjury that the foregoing is true
and correct and that this declaration was executed at Fresno,
California,
DEADLINE FOR PROPOSALS:
AUGUST 29, 2010, at 3:00 P.M.
DECLARATION OF PUBLICATION
(2015.5 C.C.P.)
NOTICE INVITING'$ROPOSALS 2010. Written questions or inquires should
AND SPECIFICATIONS be mailed or faxed to:
BID FILE 3023 Joseph Oldham
Sealed proposals will be received at the City of Fresno
Office of the City of Fresno, General Planning and Development Department,
Services Department Purchasing / Sustainable Fresno Division
Administration, 2101 G Street , Building 2600 Fresno Street, Room 3065
A, Fresno, CA 93706, all in accordance Fresno, CA 93721
with the Specifications for: FAX No. 559-498-1012
REQUEST FOR PROPOSALS FOR In accordance with the American's
SOLAR PHOTOVOLTAIC with Disabilities Act, all persons who
GENERATING SYSTEM are disabled and who need special
The City of Fresno, California ("City" accommodations to participate in any
is soliciting proposals for a proposer proceeding because of that disability should
designed, constructed, owned and operated contact Christie Kelley at 559-621-1000 or
solar photovoltaic generating system to by email at chrisfe kelleyCdfrestrogoy in
be located on City property as detailed the City's General Services Department no
in Exhibit A under It ground ]ease or later than five (5) business days prior to tine
license use anangement where under City Proceeding.
will purchase power generated at a fixed Six (6) copies of the proposal submittals
price (collectively the "Project"). It is are due by 3:00 PM on Thursday,
anticipated that all incentive credits from August 29, 2010 at which time they: will
the California Solar Initiative (CSD, and be publicly opened and recorded:
/ or Federal tax credits, and / or any other Proposals including all written,: video, or
financing options will be applied toward other information that proposer desires to
proposer's installation of the electric Provide to City shall be submitted to:. '
generation facility. Jason MacDonald
Upon request tile City will mail or email the Purchasing Manager
proposal to interested proposers. Please City of Fresno
contact Joseph Oldham at (559) 621-8179 General Services Department, Purchasing
or Jason MacDonald at (559) 621-1332 Division
or the proposal is available on die City of 2101 G Street, Building A
Fresno web site (www,ft sno.gov) under Fresno, CA 93706
the Goverment tab, pull down menu for The Planning and Development
Department Directory, then go to General Department hereby notifies all proposers
Services/Purchasing and bid opportunities that no person shall be excluded from
is located in the highlighted blue text on the participation in, denied any benefits
left cultural. of, or otherwise discriminated against
Nopnectinns anr iminiijes should in connection with the award and
directed to nv individual(s) at the performance of any contract on the basis
locations detailed In this attached of race, religious creed, color, national
document. All ingniriec shnnld he origin, ancestry, physical disability, mental
submitted in wriljpgner the pr ecc disability, medical condition, tourist status,
below, sex, age, sexual orientation or on any other
A pre -proposal meeting and. site visit is basis prohibited by law.
scheduled for 10:00 AM Tuesday, August %ashproposer shall carefully examine
17, 2010 at General Services Department, each and every teen of this Request for
Administration Office (Purchasing Proposal; and each proposer shall judge all
Conference Rooto) (2101 G 'Street the circumstances and conditions affecting
Building A ,Fresno, CA 93706).This is hisdmer proposal. Failure on the part of any
intended to include an escorted Bite visit to proposer to make such examination and to
the locations in consideration. Ali alternate investigate thoroughly shall not be grounds
meeting if needed has been scheduled for for any declaration that the proposer did not
August
, 2010.eeting will Purpose o
pof theuss an for Popo dune conditions of this Request
proposal
interested proposei:s may have The proposer shall comply with any and all
regarding the RI>P. Interested proposers are federal, state or local laws, now in effect or
strongly encomtend this unreeling. hereafter promulgated, which apply to the
Questions mrd suggestion's enneerning Project herein specified including without
the RFP ran I In: Submitted inwriting un limitation as to any.applicable prevailing or
ism, than a•oo PMhtda., A..,..,et-.in public wage.
This solicitation for proposals does not
commit the City of Fresno to enter into
an agreement to pay any. costs incurred in
the preparation of responses to the request.
The City of Fresno reserves the right to
accept or reject any proposals, mrd to
negotiate will, any qualified source, or to
cancel in part or in its entirety this Request
for Proposals. It may accept the proposal
that it considers to be in the interest of the
City of Fresno, with or without negotiation.
The City reserves the right to waive any
informality or minor irregularity when
it is in the best interest of the City to do
so, to negotiiitc for the modification of
mry proposal with mutual consent of the
proposer, to ic-advertise for proposals
if desired, and to accept the proposal
which in the judgment of the City, even
though it does not offer the lowest cost,
is nevertheless deemed to offer the best
value for the public and City. Any prolwsal
which is incomplete, conditional, obscure,
or which contains ur�e ularifies of any kind,
may be cause for rejection.
The proposals received shall become file
property of the City of Fresno and are
subject to public disclosure. Those parts of a
proposal which are defined by the proposer
as business or trade secrets as that term
is defined in California Evidence Code,
Section 3426. 1, and are reasonably marked
Trade Secrets, Confidential, or Proprietary
and placed in a separate envelope shall only
be disclosed to the public if such disclosure
is required orpernifted under the California
Public Records Actor otherwise by lay.
Proposers who indiscriminately and
without justification identify most or all of
their proposal as exempt from disclosure
may be deenned non-responsive. Proposals,
excluding confidential information, will be
available for review after posting of staff
recommendation. -
Proposals shall be received as set forth in
the Advertisement. Proposals received
after the scheduled time for Opening will
be returned to the proposer unopened. The
opening of any proposal shall NOT be
considered as acceptance of the Proposal as
a responsive Proposal.
Proposals may be withdrawn at any time
prior to the time set in the Advertisement
or in subsequent Addenda, for .opening
of. proposals. No proposer shall be
permitted to withdraw its proposal after
the time specified in the Advertisement or
subsequent Addenda for the opening of
proposals, unless selection of successful
proposers is delayed by function of the City
for one hundred twenty (120) days after the
opening of proposals.
Proposals which contain any alteration,
addition, condition, limitation or show
irregularity of any kind, may be rejected
by the City as non-responsive or irregular.
The City reserves the right to Waive any
inegiilarifies, technicalities or informalities
in any proposal, and to reject any or all
proposals.
The City reserves the right to issue
supplemental instructions or modifications
to this Request for Proposals including
Ure Exhibits thereto, which, if issued, will
be in the form of addenda, and will be
(rand delivered or sent by certified mail or
facsimile to all prospective proposers of
record as of the date of issuance of such
addenda, at the address furnished by each
prospective proposer.
The City makes a concentrated effort to
ensure any addenda issued relating to this
RFP/these Specifications are distributed
to all interested parties. It shall be the
proposer's responsibility to inquire as to
whether any addenda to the RFP/these
Specifications have been issued. Upon
issuance by the City, all addenda are part of
the proposal. Signing the proposal on the
signature page thereof shall also constitute
signature on all addenda.
The undersigned proposer agrees that the
City may have one hundred twenty (120)
days from the date proposals are opened
to accept or reject proposals. It is further
understood that, if the proposer to whom
any award is made fails to enter into
Project documents as provided in the RFP/
these Specifications, award may be made
to another proposer, who shall be bound to
Perform as if she/he had received the award
in the first instance.
08/09/2010