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HomeMy WebLinkAbout20B - AA - STREETLIGHTSREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: DECEMBER 2, 2014 TITLE AGREEMENTS TO INSTALL LED POST TOP STREETLIGHTS AND LED PARKING STRUCTURE LIGHTS USING SOUTHERN CALIFORNIA EDISON ON -BILL FINANCING PROGRAM FUNDING {STRATEGIC NQ. 5,2) CITY MA ER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 10 Reading ❑ Ordinance on 2n0 Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Direct the City Attorney to prepare and the City Manager and Clerk of the Council to execute the following agreements, subject to non - substantive changes approved by the City Manager and City Attorney: a) Powerlux Corporation to provide LED Double- Fixture Type Post Top Streetlights for an amount not to exceed $160,290. b) South Coast Lighting to provide LED Single- Fixture Type Post Top Streetlights for an amount not to exceed $120,800. c) Amiran Construction to provide and install LED parking structure lights for an amount not to exceed $84,680. d) Southern California Edison to provide no -cost funding through On -Bill Financing for the LED streetlights. 2. Approve an appropriation adjustment recognizing $418,664 in funding from Southern California Edison into the Energy Conservation revenue account and appropriating the same amount to the Energy Conservation expenditure account for the installation of LED light fixtures. DISCUSSION The City has had success with several energy efficiency LED street lighting projects. In August 2011, the City Council awarded a pilot contract to install 253 LED streetlights on Main Street and Edinger Avenue which resulted in energy savings of 60% over the existing high - pressure sodium lights (HPS). Since then, the City Council has awarded additional projects involving the replacement of over 1,765 streetlights with LED lamps throughout the City. Staff has identified another project to replace aging, inefficient, post top streetlights at several locations, as well as replacing HPS light fixtures in the Santa Ana Regional Transportation Center (SARTC) parking structure. The Southern California Edison (SCE) On -Bill Financing Program 20B -1 Agreements to Install Post Top LED Streetlights December 2, 2014 Page 2 of 3 (OBF), which provides zero - percent - interest financing for approved energy- reduction projects, will be used to cover the project costs. The funds are repaid using energy bill savings over a short payback period. This financing mechanism has been used successfully on all of the previous LED streetlight projects. A Request for Proposals (RFP) was issued seeking qualified contractors and vendors for four types of LED fixtures under a "provide and install' and "provide only' options. Firms were permitted to propose on either or both of the options. On September 18, 2014, the RFP was posted on the City's website and produced the following results: 7 Proposals received 0 Proposals received from Santa Ana businesses* * LED streetlights are a specialized industry. There are no qualified firths in Santa Ana producing or installing LED streetlights. Six proposals met the eligibility criteria for OBF, with one of the seven proposals deemed nonresponsive. The proposal evaluations were based on three factors: (1) the capacity of proposed fixtures to perform as specified; (2) the proposer's experience, ability to perform, and past performance on similar projects; and (3) the proposal base price. Upon review of the proposals, staff determined that the best value for the City was to select the "provide only" option for the LED streetlights (with installation by City staff) and the 'provide and install' option for the SARTC parking structure. Exhibit 1 shows a single and a double post top fixture streetlights. The rankings are as follows: Post Top Double Style Fixture Provide Only) Rank Proposer Location 1 PowerLux Vista, CA 2 Gra bar Walnut, CA 3 South Coast Lighting San Clemente, CA 4 VT Electric Ontario, CA 5 S Ivania Lighting Services Danvers, MA Post Top Single Style Fixture Provide Only) Rank Proposer Location 1 South Coast Lighting San Clemente, CA 2 Gra bar Walnut, CA 3 PowerLux Vista, CA 4 VT Electric Ontario 5 Sylvania Lighting Services Danvers, MA 20B -2 Agreements to Install Post Top LED Streetlights December 2, 2014 Page 3 of 3 SARTC Parking Structure Provide & Install Rank Proposer Location 1 Amiran Construction Tustin, CA 2 Sylvania Lighting Services Danvers, MA 3 VT Electric Ontario, CA Based on the applications submitted to SCE for the three projects, the City is eligible for $78,167 in energy efficiency incentives and $340,297 in financing through the OBF Program (Exhibit 2). The payback period varies from five to eight years, depending on the lighting fixture. Completion of these LED projects will reduce the City's annual energy costs by approximately $41,000. The proposed LED fixtures have an average energy savings of 67% compared to the existing HPS lamps. In addition, LED lighting provides more illumination and visible light than conventional lighting and has an expected useful life of over 15 years. The energy savings from the project will reduce the City's carbon footprint by 336 metric tons of CO2 annually, which is the equivalent of removing 71 passenger cars from the road. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #5 Community Health, Livability, Engagement & Sustainability; Objective #2 (expand opportunities for conservation and environmental sustainability). ENVIRONMENTAL IMPACT A Categorical Exemption has been filed for this project. FISCAL IMPACT Utility expenditures do not increase during the OBF payback period; therefore, this action will not impact the General Fund. Loan Proceeds will be deposited in the Energy Conservation revenue account (16217002- 57384) and appropriated into the Energy Conservation expenditure account (16217630- 62300). Funds for loan repayments are available in the Public Works Streetlight Maintenance - Utilities account (01117630- 62000). trek! / JL� Mousavipour Executive Director Public Works Agency APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance & Management Services Agency Exhibits: 1. Photo - Single and Double Post Top Streetlights 2. Savings and Incentives Summary 411W - r�- Post Top Streetlight Photos Single Fixture Type Double Fixture Type 20- xWibit 1 rI- Savings & Incentives Summary Total Estimated Annual Energy Savings (I(Wh) 482,969 Total Estimated SCE Energy Savings Incentives $78,167 Total Amount Approved by SCE to be Financed with On -Bill Financing (OBF) $340,297 Total Project Cost Approved by SCE $418,464 SCE Application Title SCE Project# Billing Type Ana LED Downtown* 353 -13- 0500454306 Metered Lights Downtown /Fourth St. & Bristol Manor (portion) Number of fixtures kWh Saved OBF Amount Approved by SCE Estimated SCE Incentive Project Cost Approved by SCE Square tber of fixtures Saved Amount Approved by SCE nated SCE Incentive ect Cost Approved by SCE *Santa Ana Regional Transportation Center Parking Structure umber of fixtures Nh Saved BF Amount Approved by SCE stimated SCE Incentive roject Cost Approved by SCE Exhibit 2 20B -7 646 354,913 $230,160 $290,495 353 -13- 0500453401 Metered Lights 201 62,434 $45,400 $56,014 193 -12- 0500243074 Metered Lights 123 65,622 $64,737 $71,955 ri- AGREEMENT FOR PROVISION OF ELECTRICAL CONTRACTING SERVICES THIS AGREEMENT ( "Agreement "), made and entered into this 2nd day of December, 2014, by Powerlux Corporation, a California corporation (hereinafter "Contractor "), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City"). A. The City desires to retain a Contractor having special skill and knowledge in the field of LED streetlight manufacturing. B. Contractor represents that it is able and willing to provide such services to the City. C. In undertaking the performance of this Agreement, Contractor represents that it is knowledgeable in its field and that any services performed by Contractor under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional contractor in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES Contractor shall install new LED fixtures (hereinafter "Project "), as set forth in Request for Proposals and Contractor's Proposal, attached hereto and incorporated herein, as Exhibit A. Contractor shall perform all work items required by this Agreement within a period of ten (10) weeks from the date of the commencement of this Agreement. 2. COMPENSATION a. The Contractor agrees to accept as total payment for its services, a fixed price not to exceed $160,290 during the term of this Agreement. b. Payment to Contractor for the City paid portion of the contract shall be made after completion and City acceptance of the Project. Contractor shall submit a detailed report of work performed and materials used in the Project. Within sixty (60) days after receipt of such report, City shall pay Contractor, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. rl- • 3. TERM This Agreement shall commence on the date first written above and terminate on May 5, 2015 unless terminated earlier in accordance with Section 13, 4. OWNERSHIP OF REPORTS AND DOCUMENTS The originals of all maps, drawings, plans, graphs, letters, documents, reports and other products and data produced under this Agreement shall be delivered to, and become the property of City. Copies may be made for Contractor's records but shall not be furnished to others without written authorization from City. Such deliverables shall be deemed works made for hire and all rights in copyright therein shall be retained by City. 5. INDEPENDENT CONTRACTOR Contractor shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City, This Agreement is not intended nor shall it be construed to create an employer - employee relationship or a joint venture relationship; however, the services to be provided by Contractor shall be provided in a manner consistent with all applicable standards and regulations governing such services. Contractor shall pay all salaries and wages, employer's Social Security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 6. INSURANCE Prior to undertaking performance of work under this Agreement, contractor shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Contractor shall maintain commercial general liability insurance which shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Contractor's operations in the performance of this Agreement. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence, $2,000,000 in the aggregate. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary and not contributory with respect to insurance or self - insurance programs maintained by the City; and (c) contain standard separation of insureds provisions. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than One Million Dollars ($1,000,000,00) per occurrence. Such insurance shall include coverage for owned, hired and non -owned automobiles. c. Workers Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Contractor, if Contractor has any employees, is required to be insured against liability for Workers Compensation or to undertake self- insurance. Prior to commencing the performance of the work under this Agreement, Contractor agrees to obtain and maintain any employer's liability insurance with limits not less than One Million Dollars ($1,000,000.00) per accident. d. If Contractor is or employs a licensed professional such as an architect or engineer: Professional liability (errors and omissions) insurance, with a combined single limit of not less than One Million Dollars ($1,000,000.00) per claim. section: e. The following requirements apply to the insurance to be provided by Contractor pursuant to this r��, (i) Contractor shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement, (ii) Certificates of Insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. (iii) Certificates and policies shall state that the policies shall not be cancelled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. f If Contractor fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such temvnation shall not affect Contractor's right to be paid for its time and materials expanded prior to notification of termination. Contractor waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 7. HOLD IIARNILESS /INDEMNIFICATION To the fullest extent permitted by law, Contractor shall indemnify, defend and hold harmless City, its officers, agents and employees (collectively the "indemnified parties ") from and against any and all claims ( including without limitation, claims for bodily injury, death or damage to property), demands , obligations, damages, actions, causes of action, snits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation, attorney's fees, disbursements and court casts) of every kind and nature whatsoever (individually, a claim; collectively "claims "), which may arise from or in any manner related (directly or indirectly) to any work performed or services provided tinder this contract (including, without limitation defects in workmanship and/or materials) or contractor's presence or activities conducted performing the work (including the negligent and/or willful acts, errors and /or omissions of contractor, its principals, officers, agents, employees, vendors, suppliers, contractors, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable for any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require contractor to indemnify the indemnified parties from any claim arising from the sole negligence or willful misconduct of the indemnified parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terns of this contract. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Contractor. The Contractor further agrees to indemnify, hold harmless, and pay all cost for the defense of the City, including reasonable fees and costs for special counsel to he selected by the City, regarding any action by a third party. City may make all reasonable decisions with respect to its representative in any legal proceeding. 8. CONFIDENTIALITY If Contractor receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Contractor agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means, Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of nonuse and nondisclosure shall not apply to any information that 1) has been disclosed in publicly available sources; 2) is, through no fault of the Contractor, disclosed in a publicly available source; 3) is in rightful possession of the Contractor without an obligation of confidentially; 4) is required to be disclosed by operation of law; or S) is independently developed by the Contractor without reference to information disclosed by the City. 20BA 1 9. CONFLICT OF INTEREST CLAUSE Contractor covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance if services specified under this Agreement. 10. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by facsimile or other telegraphic communication in the manner provided in this section, to the following persons: To City: Cleric of the City Council City of Santa Ana P.O. Box 1988 M -30 Santa Ana, CA 92702 -1988 Fax: 714- 647-6956 Copies to: Executive Director, Public Works Agency City of Santa Ana P.O. Box 1988 M -21 Santa Ana, CA 92702 Fax: 714 -647 -5069 City Attorney City of Santa Ana P.O. Box 1988 M -29 Santa Ana, CA 92702 Fax: 714- 647 -6515 Contractor: Powerlux Corporation ATTN: lien Lau 1260 Liberty Way Suite E Vista, CA 92081 A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. I£ sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by facsimile, communication shall be effective or deemed to have been given twenty -four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above, For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 11. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Contractor, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Contractor. The parties agree that any terms or conditions of any purchase order or other 20B -12 instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate neither Contractor nor the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which is not embodied herein. 12. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Contractor, Contractor may not assign, transfer, delegate, or subcontract any interest herein without prior written consent of the City, and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by the City personnel or by other Contractor retained by City, Notwithstanding the above, Contractor may transfer and assign its rights, or delegate its duties or obligations without the prior written consent of The City of Santa Ana in the event of a merger, integration, reorganization, corporate restructuring or the sale of all or substantially all its assets, In case of such transfer or assignment, Contractor shall take care that the transferee, assignee or successor will comply with the terns and conditions of this Agreement. 13. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. For a termination for convenience, the termination shall be effective upon Contractor's receipt of City's written notice of such termination. For a termination for cause, the termination shall be effective thirty (30) days after Contractor's receipt of City's written notice thereof and Contractor's failure during that period to cure the cause or default which is at issue and the reason for the notice of termination, or reasonably initiate a cure during such time. In such event, Contractor shall be entitled to receive, and the City shall pay Contractor within sixty (60) days compensation for all services performed by Contractor prior to receipt of such notice of termination subject to the following conditions: a. As a condition of such payment, the Executive Director may require Contractor to deliver to the City all work product completed as of such date, and in such case such work product shall be property of the City unless prohibited by law, and Contractor consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work which fails to meet the standard of perfornmance specified in the Recitals of this Agreement. 14. DISCRIMINATION Contractor shall not discritr nate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization promotion; termination or other employment related activities. Contractor affirms that it is an equal opportunity employer and shall comply with all applicable federal, State and local laws and regulations. 15. JURISDICTION —VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 20B-13 16. PROFESSIONAL LICENSES Contractor shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of services hereunder and required by the laws and regulations of the United Sates, the State of California, the City of Santa Ana and all other governmental agencies. Contractor shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 17. RESPONSIBILITY FOR DAMAGES The Contractor shall be responsible for all damages to persons and/real or tangible property that occur as a result of the fault or negligence of said Contractor or its subcontractors, agents, employees, or other persons acting on their behalf in comicotion with the performance of this Agreement. 18. FAILURE TO PERFORM SATISFACTORILY a. Contractor aclmowledges and agrees that subject to the notice provisions in Article 10 and except in cases of force maj eure, if the Contractor fails to perform the work as specified herein, the Director, 1) will pay only for the amount of service received as determined by the Director with an appropriate downward adjustment in contract price; or 2) may have such required work done by City forces or otherwise, and charge the cost thereof to the Contractor. Such adjustments will be the estimated cost for performance by City forces plus City overhead and wilt include overtime pay as required to complete work. b. If Contractor performs the work in such a manner that the amount of payment withheld due to substandard performance, nonperformance and/or forfeiture for non - completion per schedule totals five percent (5%) of the total contract price, the City shalt notify the Contractor of such noncompliance. If the Contractor continues to perform the work in such a manner that the amount of payment withheld due to substandard performance, nonperformance and/or forfeiture for non - completion per schedule totals ten percent (10 %) of the total contract price, this Agreement may be terminated at the City's option. In the event of termination for unsatisfactory performance, the original Contractor shall reimburse the City for damage accrued due to changing contractors. 19. SAFETY REQUIREMENTS All work performed under this contract shall be performed in such a manner as to provide required maximum safety to the public and where applicable, comply with all safety standards required by CAL- OSIIA. The Director reserves the right to issue restraint or cease and desist orders to the Contractor when unsafe or harmful acts are observed or reported relative to the performance of the work under this contract. 20. HAZARDOUS CONDITIONS The Contractor shall maintain all work sites free of hazards to persons and/or property resulting from its operations. Any hazardous condition noted by the Contractor, which is not a result of its operations, shall be immediately reported to the Public Works Agency, 21. ACCESS TO PRIVATE PROPERTY Prior to the commencement of any work that will restrict access to private property the Contractor shall notify each affected property owner or responsible person, informing him or her of the nature of and the approximate duration of the restriction. 20B44 22. PROTECTION AND RESTORATION OF EXISTING IMPROVEMENTS The Contractor shall be responsible for the protection of all improvements adjacent to the work, such as sprinkler systems, drain pipes, lawns, brick work, plantings, masonry work, fences, wall, sidewalks, street paving, etc,, located on either public or private property. If any improvements are damaged they shall be replaced in kind at the Contractor's expense. 23. TRAFFIC CONTROL The Contractor shall conduct all work in a manner that will insure continuous traffic flow on the street at all times. In situations where it is necessary to restrict traffic flow per WATCH, the Contractor will contact the Director for approval. 24. MISCELLANEOUS TRAFFIC DEVICES Contractor shall provide all traffic control and miscellaneous traffic devices which may be required for routine and /or extraordinary maintenance pursuant to this Agreement. Signs used for handling traffic during the course of this contract shall be in accordance with the WATCH published by Building News, Inc., and made a part of these special provisions. The method in which signs, barriers and other miscellaneous traffic devices are used during construction and /or repair shall be in accordance with the publication mentioned. A copy of said publication is on file in the Santa Ana Public Works Agency— Construction Engineering Division. All signs shall be illuminated or reflectorized when they are used during hours of darkness. All cones, pylons, barricades, or posts used in the diversion of traffic shall be provided with flashers, or other satisfactory illumination if in place during hours of darkness. All traffic control devices shall be maintained in a like new condition at all times. 25. WORK BY CITY FORCES BECAUSE OF NONCONFORMANCE TO CONTRACT Should the Contractor fail to correct deficiencies or public nuisances that have been created because of its operation, then such deficiency or public nuisance will be considered to be of an emergency nature and cause the City to make corrective work. Such work will be done on a force account basis with an additional callout charge of Two Hundred Dollars ($200.00) for each callout. 26. APPRENTICESHIP STANDARDS Where required under law, Contractor shall assume full responsibility for compliance with apprenticeship standards as established by Section 1777.5 of the California State Labor Code, 27, SUBCONTRACTORS The Contractor shall not, without the written consent of the City: a. Substitute any person or firm as subcontractor in place of the subcontractor designated in'the original proposal. b. Permit any subcontract to be assigned or transferred or allow it to be performed by anyone other than the original subcontractor listed in the proposal. 20B -1'5 c. Subcontract any portion of the work after bid is submitted if the cost thereof exceeds one -half (1 /2) of one (1) percent of the total proposal and a subcontractor was not designated for the work in the original proposal. 28. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terns of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees; for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. (Signatures on following page) 20B -16 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: Sonia R. Carvalho City Attorney By: Lisa Storck Assistant City Attorney RECOMMENDED FOR APPROVAL: FRED MOUSAVIPOUR Director, Public Works Agency CITY OF SANTA ANA David Cavazos City Manager POWERLUX CORPORATION Ken Lau President Tax ID# 20B217 ri- AGREEMENT FOR PROVISION OF ELECTRICAL CONTRACTING SERVICES THIS AGREEMENT ( "Agreement "), made and entered into this 2 "d day of December, 2014, by South Coast Lighting and Design, Inc., a California corporation (hereinafter "Contractor ") and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City "). A. The City desires to retain a Contractor having special skill and knowledge in the field of LED streetlight manufacturing. B. Contractor represents that it is able and willing to provide such services to the City. C. In undertaking the performance of this Agreement, Contractor represents that it is knowledgeable in its field and that any services performed by Contractor under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional contractor in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES Contractor shall install new LED fixtures (hereinafter "Project "), as set forth in Request for Proposals and Contractor's Proposal, attached hereto and incorporated herein as Exhibit A. Contractor shall perform all work items required by this Agreement within a period of ten (10) weeks from the date of the commencement of this Agreement. 2. COMPENSATION a. The Contractor agrees to accept as total payment for its services, a fixed price of $105,059. The City has allocated an additional $15,741 contingency amount, to be expended only at the written direction of the Executive Director of Public Works or his designee for additional services required due to unforeseen circumstances. The total sum to be expended under this Agreement shall not exceed $120,800 during the term of this Agreement. b. Payment to Contractor for the City paid portion of the contract shall be made after completion and City acceptance of the Project. Contractor shall submit a detailed report of work performed and materials used in the Project. Within sixty (60) days after receipt of such report, City shall pay Contractor, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. 20B -19 3. TERM This Agreement shall commence on the date first written above and terminate on May 5, 2015 unless terminated earlier in accordance with Section 13, 4, OWNERSHIP OF REPORTS AND DOCUMENTS The originals of all maps, drawings, plans, graphs, letters, documents, reports and other products and. data produced under this Agreement shall be delivered to, and become the property of City, Copies may be made for Contractor's records but shall not be furnished to others without written authorization from City. Such deliverables shall be deemed works made for hire and all rights in copyright therein shall be retained by City. 5. INDEPENDENT CONTRACTOR Contractor shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer - employee relationship or a joint venture relationship; however, the services to be provided by Contractor shall be provided in a maser consistent with all applicable standards and regulations governing such services. Contractor shall pay all salaries and wages, employer's Social Security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. & INSURANCE Prior to undertaking performance of work under this Agreement, contractor shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Contractor shall maintain commercial general liability insurance which shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Contractor's operations in the performance of this Agreement. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence, $2,000,000 in the aggregate. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured($); (b) be primary and not contributory with respect to insurance or self - insurance programs maintained by the City; and (c) contain standard separation of insureds provisions. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than One Million Dollars ($1,000,000.00) per occurrence. Such insurance shall include coverage for owned, hired and non -owned automobiles. c. Workers Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Contractor, if Contractor has any employees, is required to be insured against liability for Workers Compensation or to undertake self - insurance. Prior to commencing the performance of the work under this Agreement, Contractor agrees to obtain and maintain any employer's liability insurance with limits not less than One Million Dollars ($1,000,000.00) per accident. d. If Contractor is or employs a licensed professional such as an architect or engineer: Professional liability (errors and omissions) insurance, with a combined single limit of not less than One Million Dollars ($1,000,000.00) per claim. section: e. The following requirements apply to the insurance to be provided by Contractor pursuant to this 20B-20 (i) Contractor shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of Insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. (iii) Certificates and policies shall state that the policies shall not be cancelled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. f. If Contractor fails or refuses to produce or maintain the insurance required by This section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for; the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not affect Contractor's right to be paid for its time and materials expanded prior to notification of termination. Contractor waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. HOLD HARMLFSS/INDFMNIFICATION To the fullest extent permitted by law, Contractor shall indemnify, defend and hold harmless City, its officers, agents and employees (collectively the "indemnified parties ") from and against any and all claims ( including without limitation, claims for bodily injury, death or damage to property), demands , obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities; costs and expenses (including without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a claim; collectively "claims "), which may arise from or in any manner related (directly or indirectly) to any work performed or services provided under this contract (including, without limitation defects in workmanship and/or materials) or contractor's presence or activities conducted perforating the work (including the negligent and/or willful acts, errors and/or omissions of contractor, its principals, officers, agents, employees, vendors, suppliers, contractors, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable for any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require contractor to indemnify the indemnified parties from any claim arising from the sole negligence or willful misconduct of the indemnified parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terns of this contract. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable, The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Contractor. The Contractor further agrees to indemnify, hold harmless, and pay all cost for the defense of the City, including reasonable fees and costs for special counsel to be selected by the City, regarding any action by a third party. City may make all reasonable decisions with respect to its representative in any legal proceeding. 8. CONFIDENTIALITY If Contractor receives from the City information which due to the nature of such information is reasonably understood to be confidential and/ /or proprietary, Contractor agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care, "Confidential information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other panty is covered by this Agreement. The foregoing obligations of nonuse and nondisclosure shall not apply to any information that 1) has been disclosed in publicly available sources; 2) is, through no fault of the Contractor, disclosed in a publicly available source; 3) is in rightful possession of the Contractor without an obligation of confidentially; 4) is required to be disclosed by operation of law; or 5) is independently developed by the Contractor without reference to information disclosed by the City. 20B-21 9. CONFLICT OF INTEREST CLAUSE Contractor covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance if services specified under this Agreement. 10. NOTICE Any notice, tender, demand, delivery, or other' communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by facsimile or other telegraphic communication in the manner provided in this section, to the following persons: To City: Clerk of the City Council City of Santa Ana P.O. Sox 1988 M -30 Santa Ana, CA 92702 -1988 Fax: 714- 647 -6956 Copies to: Executive Director, Public Works Agency City of Santa Ana P.O. Box 1988 M -21 Santa Ana, CA 92702 Fax: 714 -647 -5069 City Attorney City of Santa Ana P.O. Box 1988 M -29 Santa Ana, CA 92702 Fax: 714- 647 -6515 Contractor: South Coast Lighting and Design, Inc Attn: Jon -Eric Samanello 1391 Calle Avanzado San Clemente, CA 92673 A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered, or certified, with postage prepaid, and addressed as set forth above. If sent by facsimile, communication shall be effective or deemed to have been given twenty -four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 11. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Contractor, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Contractor. The parties agree that any terms or conditions of any purchase order or other 20B-22 instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate neither Contractor nor the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which is not embodied herein, 12. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Contractor, Contractor may not assign, transfer, delegate, or subcontract any interest herein without prior written consent of the City, and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by the City personnel or by other Contractor retained by City, Notwithstanding the above, Contractor may transfer and assign its rights, or delegate its duties or obligations without the prior written consent of The City of Santa Ana in the event of a merger, integration, reorganization, corporate restructuring or the sale of all or substantially all its assets, In case of such transfer or assignment, Contractor shall take care that the transferee, assignee or successor will comply with the terms and conditions of this Agreement. 13. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. For a termination for convenience, the termination shall be effective upon Contractor's receipt of City's written notice of such termination. For a termination for cause, the termination shall be effective thirty (30) days after Contractor's receipt of City's written notice thereof and Contractor's failure during that period to cure the cause or default which is at issue and the reason for the notice of termination, or reasonably initiate a cure during such time. In such event, Contractor shall be entitled to receive, and the City shall pay Contractor within sixty (60) days compensation for all services performed by Contractor prior to receipt of such notice of termination subject to the following conditions: a. As a condition of such payment, the Executive Director may require Contractor to deliver to the City all work product completed as of such date, and in such case such work product shall be property of the City unless prohibited by law, and Contractor consents to the City's use thereof" for such purposes as the City deems appropriate. b, Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 14. DISCRIMINATION Contractor shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Contractor affirms that it is an equal opportunity employer and shall comply with all applicable federal, State and local laws and regulations, 15. JURISDICTION — VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California, Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 20B -23 16. PROFESSIONAL LICENSES Contractor shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of services hereunder and required by the laws and regulations of the United Sates, the State of California, the City of Santa Ana and all other governmental agencies, Contractor shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 17, RESPONSIBILPPY FOR DAMAGES The Contractor shall be responsible for all damages to persons and/real or tangible property that occur as a result of the fault or negligence of said Contractor or its subcontractors, agents, employees, or other persons acting on their behalf in connection with the performance of this Agreement. 18. FAILURE TO PERFORM SATISFACTORILY a. Contractor acknowledges and agrees that subject to the notice provisions in Article 10 and except in cases of force majeure, if the Contractor fails to perform the work as specified herein, the Director, I) will pay only for the amount of service received as determined by the Director with an appropriate downward adjustment in contract price, or 2) may have such required work done by City forces or otherwise, and charge the cost thereof to the Contractor. Such adjustments will be the estimated cost for performance by City forces plus City overhead and will include overtime pay as required to complete work. b. If Contractor performs the work in such a manner that the amount of payment withheld due to substandard performance, nonperformance and/or forfeiture for non - completion per schedule totals five percent (5 %) of the total contract price, the City shall notify the Contractor of such noncompliance. If the Contractor continues to perform the work in such a manner that the amount of payment withheld due to substandard performance, nonperformance and/or forfeiture for non- completion per schedule totals ten percent (t0 %) of the total contract price, this Agreement may be terminated at the City's option In the event of termination for unsatisfactory performance, the original Contractor shall reimburse the City for damage accrued due to changing contractors. 19. SAFETY REQUIREMENTS All work performed under this contract shall be performed in such a manner as to provide required maximum safety to the public and where applicable, comply with all safety standards required by CAL- OSI-IA. The Director reserves the tight to issue restraint or cease and desist orders to the Contractor when unsafe or harmful acts are observed or reported relative to the performance of the work tinder this contract. 20. HAZARDOUS CONDITIONS The Contractor shall maintain all work sites free of hazards to persons and /or property resulting from its operations. Any hazardous condition noted by the Contractor, which is not a result of its operations, shall be immediately reported to the Public Works Agency. 21. ACCESS TO PRIVATE PROPERTY Prior to the commencement of any work that will restrict access to private property the Contractor shall notify each affected property owner or responsible person, informing him or her of the nature of and the approximate duration of the restriction. 22. PROTECTION AND RESTORATION OF EXISTING IMPROVEMENTS The Contractor shall be, responsible for the protection of all improvements adjacent to the work, such as sprinkler systems, drain pipes, lawns, brick work, plantings, masonry work, fences, wall, sidewalks, street paving, etc, located on either public or private property. If any improvements are damaged they shall be replaced in kind at the Contractor's expense. 23. TRAFFIC CONTROL The Contractor shall conduct all work in a manner that will insure continuous traffic flow on the street at all times. In situations where it is necessary to restrict traffic flow per WATCH, the Contractor will contact the Director for approval. 24. MISCELLANEOUS TRAFFIC DEVICES Contractor shall provide all traffic control and miscellaneous traffic devices which may be required for routine and /or extraordinary maintenance pursuant to this Agreement. Signs used for handling traffic during the course of this contract shall be in accordance with the WATCH published by Building News, Inc., and made a part of these special provisions. The method in which signs, barriers and other miscellaneous traffic devices are used during construction and /or repair shall be in accordance with the publication mentioned. A copy of said publication is on file in the Santa Ana Public Works Agency — Constriction Engineering Division. All signs shall be illuminated or reflectorized when they are used during hours of darkness. All cones, pylons, barricades, or posts used in the diversion of traffic shalt be provided with flashers, or other satisfactory illumination if in place during hours of darkness. All traffic control devices shall be maintained in a like new condition at all times. 25. WORD BY CITY FORCES BECAUSE OF NONCONFORMANCE TO CONTRACT Should the Contractor fail to correct deficiencies or public nuisances that have been created because of its operation, then such deficiency or public nuisance will be considered to be of an emergency nature and cause the City to make corrective work. Such work will be done on a force account basis with an additional callout charge of Two Hundred Dollars ($200.00) for each callout. 26. APPRENTICESHIP STANDARDS Where required under law, Contractor shall assume full responsibility for compliance with apprenticeship standards as established by Section 1777.5 of the California State Labor Code. 27. SUBCONTRACTORS The Contractor shall not, without the written consent of the City: a. Substitute any person or firm as subcontractor in place of the subcontractor designated in the original proposal. b, Permit any subcontract to be assigned or transferred or allow it to be performed by anyone other than the original subcontractor listed in the proposal, 20B -2'5 c. Subcontract any portion of the work after bid is submitted if the cost thereof exceeds one -half (1/2) of one (1) percent of the total proposal and a subcontractor was not designated for the work in the original proposal. 28. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. (Signatures on following page) r�- IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: MARIA D. HUIZAR Cleric of the Council APPROVED AS TO FORM: Sonia R. Carvalho City Attorney Lisa Storck Assistant City Attorney RECOMMENDED FOR APPROVAL: Fred Mousavipour, Executive Director Public Works Agency CITY OF SANTA ANA David Cavazos City Manager SOUTH COAST LIGHTING Jon -Eric Santanello Vice President Tax ID# r�- AGREEMENT FOR PROVISION OF ELECTRICAL CONTRACTING SERVICES THIS AGREEMENT ( "Agreement "), made and entered into this 2 " day of December, 2014, by Amiran Construction Company, a California corporation (hereinafter "Contractor"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City"). A. The City desires to retain a Contractor having special skill and knowledge in the field of outdoor light repair and installation. B. Contractor represents that it is able and willing to provide such services to the City. C. In undertaking the performance of this Agreement, Contractor represents that it is knowledgeable in its field and that any services performed by Contractor under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional contractor in the field. NOW THEREFORE, inconsideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES Contractor shall remove and dispose of the existing flush mount and pole mount lighting in the Santa Ana Regional Transportation Center Parking Structure and replace with new LED fixtures (hereinafter "Project "), as set forth in Request for Proposals and Contractor's Proposal, attached hereto and incorporated herein as Exhibit A. Contractor shall perform all work items required by this Agreement within a period of ten. (10) weeks from date of the commencement of this Agreement. 2. COMPENSATION a. The Contractor agrees to accept as total payment for its services, a fixed price of $76,985.00. The City has allocated an additional $7,699 contingency amount; to be expended only at the written direction of the Executive Director of Public Works or his designee for additional services required due to unforeseen circumstances. The total sum to be expended under this Agreement shall not exceed $84,680 during the terns of this Agreement. b. Payment to Contractor for the City paid portion of the contract shall be made after completion and City acceptance of the Project, Contractor shall submit detailed report of work performed and materials used in the Project. Within sixty (60) days after receipt of such report, City shall pay Contractor, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. 20B -29 3. TERM This Agreement shall commence on the date first written above and terminate an May 5, 2015 unless terminated earlier in accordance with Section 13. 4. OWNERSHIP OF REPORTS AND DOCUMENTS The originals of all maps, drawings, plans, graphs, letters, documents, reports and other products and data produced under this Agreement shall be delivered to, and become the property of City. Copies may be made for Contractor's records but shall not be famished to others without written authorization from City. Such deliverables shall be deemed works made for hire and all rights in copyright therein shall be retained by City. S. INDEPENDENT CONTRACTOR Contractor shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer - employee relationship or a joint venture relationship; however, the services to be provided by Contractor shall be provided in a manner consistent with all applicable standards and regulations governing such services. Contractor shall pay all salaries and wages, employer's Social Security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 6. INSURANCE Prior to undertaking performance of work under this Agreement, contractor shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Contractor shall maintain commercial general liability insurance which shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Contractor's operations in the performance of this Agreement. The amounts of insurance shall be not less than the following; single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence, $2,000,000 in the aggregate. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary and not contributory with respect to insurance or self - insurance programs maintained by the City; and (c) contain standard separation of insureds provisions. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than One Million Dollars ($1,000,000.00) per occurrence. Such insurance shall include coverage for owned, hired and non - owned automobiles. c. Workers Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Contractor, if Contractor has any employees, is required to be insured against liability for Workers Compensation or to undertake self- insurance. Prior to commencing the performance of the work under this Agreement, Contractor agrees to obtain and maintain any employer's liability insurance with limits not less than One Million Dollars ($1,000,000.00) per accident. d. If Contractor is or employs a licensed professional such as an architect or engineer: Professional liability (errors and omissions) insurance, with a combined single limit of not less than One Million Dollars ($1,000,000.00) per claim. section: e. The following requirements apply to the insurance to be provided by Contractor pursuant to this 20B -30 (i) Contractor shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of Insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. (iii) Certificates and policies shall state that the policies shall not be cancelled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. f. If Contractor fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement, Such termination shall not affect Contractor's right to be paid for its time and materials expanded prior to notification of termination. Contractor waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 7. HOLD HARIIILESSJNDEMNIFICATION To the fullest extent permitted by law, Contractor shall indemnify, defend and hold harmless City, its officers, agents and employees (collectively the "indemnified parties ") from and against any and all claims ( including without limitation, claims for bodily injury, death or damage to property), demands , obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a claim, collectively "claims "), which may arise from or in any manner related (directly or indirectly) to any work performed or services provided under this contract (including, without limitation defects in workmanship and/or materials) or contractor's presence or activities conducted perforrning the work (including the negligent and /or willful acts, errors and/or omissions of contractor, its principals, officers, agents, employees, vendors, suppliers, contractors, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable for any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require contractor to indemnify the indemnified parties from any claim arising from the sole negligence or willful misconduct of the indemnified parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this contract. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Contractor. The Contractor further agrees to indemnify, hold harmless, and 'pay all cost for the defense of the City, including reasonable fees and costs for special counsel to be selected by the City, regarding any action by a third party. City may make all reasonable decisions with respect to its representative in any legal proceeding. 8. CONFIDENTIALITY If Contractor receives from the City information which due to the nature of such information is reasonably understood to be. confidential and /or proprietary, Contractor agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential information" shall include all nonpublic information. Confidential information includes not only written information, but also information, transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and /or agent of the other party is covered by this Agreement. The foregoing obligations of nonuse and nondisclosure shall not apply to any information that 1) has been disclosed in publicly available sources; 2) is, through no fault of the Contractor, disclosed in a publicly available source; 3) is in rightful possession of the Contractor without an obligation of confidentially; 4) is required to be disclosed by operation of law; or 5) is independently developed by the Contractor without reference to information disclosed by the City. 20B -31 9. CONFLICT OF INTEREST CLAUSE Contractor covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance if services specified cinder this Agreement. 10. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by 'first class or certified mail, postage prepaid, or sent by facsimile or other telegraphic connnunication in the manner provided in this section, to the following persons: To City: Cleric of the City Council City of Santa Ana P.O. Box 1988 M -30 Santa Ana, CA 92702 -1988 Fax: 714- 647 -6956 Copies to: Executive Director, Public Works Agency City of Santa Ana P.O. Box 1988 M -21 Santa Ana, CA 92702 Fax: 714 -647 -5069 City Attorney City of Santa Ana P.O. Box 1988 M -29 Santa Ana, CA 92702 Fax: 714- 647 -6515 Contractor: Amlran Construction Attu: FrankMidahangir 15145 Woodlawn Ave. Suite 200 Tustin, CA 92780 A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by facsimile, communication shall be effective or deemed to have been given twenty -four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 11. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Contractor, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Contractor. The parties agree that any terms or conditions of any purchase order or other 20B -32 instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate neither Contractor nor the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which is not embodied herein. 12. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Contractor, Contractor may not assign, transfer, delegate, or subcontract any interest herein without prior written consent of the City, and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by the City personnel or by other Contractor retained by City. Notwithstanding the above, Contractor may transfer and assign its rights, or delegate its duties or obligations without the prior written consent of The City of Santa Ana in the event of a merger, integration, reorganization, corporate restructuring or the sale of all or substantially all its assets. In case of such transfer or assignment, Contractor shall take care that the transferee, assignee or successor will comply with the terms and conditions of this Agreement. 13. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. For a ternination for convenience, the termination shall be effective upon Contractor's receipt of City's written notice of such termination. For a termination for cause, the termination shall be effective thirty (30) days after Contractor's receipt of City's written notice thereof and Contractor's failure during that period to cure the cause or default which is at issue and the reason for the notice of termination, or reasonably initiate a cure during such time. In such event, Contractor shall be entitled to receive, and the City shall pay Contractor within sixty (60) days compensation for all services performed by Contractor prior to receipt of such notice of termination subject to the following conditions: a. As a condition of such payment, the Executive Director may require Contractor to deliver to the City all work product completed as of such date, and in such case such work product shall be property of the City unless prohibited by law; and Contractor consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 14, DISCRIMINATION Contractor shall not discriminate because of race, color, creed, religion, sex; marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Contractor affirms that it is an equal opportunity employer and shall comply with all applicable federal, State and local laws and regulations. 15. JURISDICTION — VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement, 20B -33 16, PROFESSIONAL LICENSES Contractor shall, throughout the tern of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of services hereunder and required by the laws and regulations of the United Sates, the State of California, the City of Santa Ana and all other governmental agencies. Contractor shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 17. RESPONStBILITY FOR DAMAGES The Contractor shall be responsible for all damages to persons and /real or tangible property that occur as a result of the fault or negligence of said Contractor or its subcontractors, agents, employees, or other persons acting on their behalf in connection with the performance of this Agreement. 18. FAILURE TO PERFORM SATISFACTORILY a. Contractor acknowledges and agrees that subject to the notice provisions in Article 10 and except in cases of force majeure, if the Contractor fails to perform the work as specified herein, the Director, 1) will pay only for the amount of service received as determined by the Director with an appropriate downward adjustment in contract price, or 2) may have such required work done by City forces or otherwise, and charge the cost thereof to the Contractor. Such adjustments will be the estimated cost for performance by City forces plus City overhead and will include overtime pay as required to complete work. b. If Contractor performs the work in such a manner that the amount of payment withheld due to substandard performance, nonperformance and /or forfeiture for non - completion per schedule totals five percent (5 %) of the total contract price, the City shall notify the Contractor of such noncompliance. If the Contractor continues to perform the work in such a manner that the amount of payment withheld due to substandard performance, nonperformance and /or forfeiture for non - completion per schedule totals ten percent (10 %) of the total contract price, this Agreement may be terminated at the City's option, In the event of termination for unsatisfactory performance, the original Contractor shall reimburse the City for damage accrued due to changing contractors. 19. SAFETY REQUIREMENTS All work performed under this contract shall be performed in such a manner as to provide required maximum safety to the public and where applicable, comply with all safety standards required by CAL -OSHA. The Director reserves the right to issue restraint or cease and desist orders to the Contractor when unsafe or harmful acts are observed or reported relative to the performance of the work under this contract. 20. HAZARDOUS CONDITIONS The Contractor shall maintain all work sites free of hazards to persons and /or property resulting from its operations. Any hazardous condition noted by the Contractor, which is not a result of its operations, shall be immediately reported to the Public Works Agency. 21. ACCESS TO PRIVATE PROPERTY Prior to the commencement of any work that will restrict access to private property the Contractor shall notify each affected property owner or responsible person, informing him or her of the nature of and the approximate duration of the restriction. 20B-34 22. PROTECTION AND RESTORATION OF EXISTING IMPROVEMENTS The Contractor shall be responsible for the protection of all improvements adjacent to the work, such as sprinkler systems, drain pipes, lawns, brick work, plantings; masonry work, fences, wall, sidewalks, street paving, etc., located on either public or private property. If any improvements are damaged they shall be replaced in kind at the Contractor's expense. 23. TRAFFIC CONTROL The Contractor shall conduct all work in a manner that will insure continuous traffic flow on the street at all times. In situations where it is necessary to restrict traffic flow per WATCH, the Contractor will contact the Director for approval 24. MISCELLANEOUS TRAFFIC DEVICES Contractor shall provide all traffic control and nscellaneous traffic devices which may be required for routine and/or extraordinary maintenance pursuant to this Agreement. Signs used for handling traffic during the course of this contract shall be in accordance with the WATCH published by Building News, Inc., and made a part of these special provisions. The method in which signs, barriers and other miscellaneous traffic devices are used during constriction and/or repair shall be in accordance with the publication mentioned. A copy of said publication is on file in the Santa Ana Public Works Agency — Construction Engineering Division. All signs shall be illuminated or reflectorized when they are used during hours of darkness. All cones, pylons, barricades, or posts used in the diversion of traffic shall be provided with flashers, or other satisfactory illumination if in place during hours of darkness. All traffic control devices shall be maintained in a like new condition at all times. 25. WORK BY CITY FORCES BECAUSE OF NONCONFORMANCE TO CONTRACT Should the Contractor fail to correct deficiencies or public nuisances that have been created because of its operation, then such deficiency or public nuisance will be considered to be of an emergency nature and cause the City to make corrective work. Such work will be done on a force account basis with an additional catlout charge of Two Hundred Dollars ($200.00) for each eallout. 26. APPRENTICESHIP STANDARDS Where required under law, Contractor shall assume full responsibility for compliance with apprenticeship standards as established by Section 1777.5 of the California State Labor Code. 27, SUBCONTRACTORS The Contractor shall not, without the written consent of the City: a. Substitute any person or firm as subcontractor in place of the subcontractor designated in the original proposal. b. Permit any subcontract to be assigned or transferred or allow it to be performed by anyone other than the original subcontractor listed in the proposal. 20B -35 e, Subcontract any portion of the work after bid is submitted if the cost thereof exceeds one -half (1/2) of one (1) percent of the total proposal and a subcontractor was not designated for the work in the original proposal. 28. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature; herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. (Signatures on following page) 20B -36 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: Sonia R. Carvalho City Attorney By' ` C Lisa Storck Assistant City Attorney RECOMMENDED FOR APPROVAL: Fred Mousavipour, Executive Director Public Works Agency CITY OF SANTA ANA David Cavazos City Manager Amiran Construction Company, a California corporation Frank Midahangir 9 20B -37 V rl- On -Bill Financing Agreement This On -Bill Financing Agreement ( "OBF Agreement ") is entered into on 20_, (the "Effective Date ") by and between the undersigned customer ( "Customer ") and Southern California Edison Company ( "SCE ") (each a "Party," collectively the "Parties") Recitals 1. Customer and SCE entered into the Energy Management Solutions Incentives Application for Business Customers on or about 20_ and If applicable, the Customized Solutions Agreement (individually or collective)y referred to as "EMS Agreement "), which is /are attached hereto and incorporated herein by reference. 2. Customer owns, leases or rents the propert y listed in the EMS Agreement as the Site and maintains a service account(s) with SCE for electric service. Customer has completed installation of eligible energy efficient equipment ( "Equipment ") at the Site as set forth In the EMS Agreement and has accepted the equipment as being operational and in good working order. 3. In Decision 09 -09 -047, the California Public Utilities Commission authorized SCE to provide zero - percent interest financing for the installation of certain energy efficient equipment, which is to be repaid over a specified period through the Customer's electric utility bill(s) ( "On -Bill Financing "), 4. Customer desires to enter into this OBF Agreement in order to participate in SCE's On -Bill Financing program and Customer agrees to repay SCE the Amount Financed (as defined under "Loan Terms ", below) through the Customer's SCE utility bill(s) pursuant to the terms and conditions of this OBF Agreement. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the Parties agree as follows: Terms and Conditions Defined Terms: Except as the context otherwise requires, capitalized terms used in this OBF Agreement without definition shall have the same meanings as are set forth in the EMS Agreement. Amount Financed: Within thirty (30) days after the Effective Date, SCE will provide a payment for the Amount Financed to Customer or to a third -party pa as designated by Customer under the Loan Terms, below. Customer's designation of a third party payee may not be changed or revoked. Loan Terms: Amount Financed ( "Amount Financed" ) : .00 interest Rate: 0% Fees: Months to Pay: "Fi"rsi` (56t Payment Remaining Monthly Payments: Service Account to be Billed: Designated Third-Party Payee if an Address of Designated Third - Part Payee: If more than one Service Account will be billed, information regarding the Service Account number and monthly payment is included in Schedule A attached. Form 14 -792 05/2012 20B -39 Promise to Pay: Customer promises to pay SCE the Amount Financed in equal monthly installments as set forth in the section above and /or Schedule A (Customer's "Loan Obligation "). The first Monthly Payment of Customers Loan Obligation will appear within sixty (60) days from the Effective Date on Customer's SCE utility bill(s) for the Service Account(s) listed above. Manner of Payment: Customer's Monthly Payment amount will appear as a line item labeled "EE/OBF Installment Charge" on the monthly SCE utility bill(s) for Customer's Service Account($), Customer may pay the Loan Obligation in the monthly installments or pre -pay the Loan Obligation in one lump sum without penalty, but pre - payments for less than the remaining balance will not be allowed. Customer's Loan Obligation will appear on Customer's monthly SCE utility bill(s) for the number of months set forth above, or until the Loan Obligation is paid in full by Customer, whichever occurs first. Customer shall make payments to SCE as directed in the SCE utility bill(s). Partial Payments: If Customer is unable to make a full payment of the Loan Obligation in any given month, payment arrangements may be made at SCE's sole discretion. Any partial payments will be applied In equal proportion to the energy charges and the Loan Obligation, and Customer will be considered to be delinquent and in default of both the energy bill and the Loan Obligation. Late Payments: No late payment charges or interest will be assessed for delinquent payments on the Loan Obligation. However, SCE may assess late payment charges for delinquent payments of energy charges pursuant to SCE's Rule 9 which is incorporated herein by reference. Returned Payments: SCE may require payment of a $10.00 Returned Check Charge for any check returned from Customer's financial institution unpaid. The Returned Check Charge will also apply to any forms of payment that are subsequently dishonored. Discontinuance of Service: Amounts due under this OBF Agreement will be amounts deemed due under each SCE utility bill to the Customer's Service Account(s), and a default under this OBF Agreement will be treated as a default under the Customer's Service Account(s). Customer's Loan Obligation is subject to the discontinuance provisions of SCE's Rule 11, Discontinuance and Restoration of Service, Section B, Nonpayment of Bills or Summary Bills which is incorporated herein by reference. Breach and Acceleration: Any breach by Customer under the EMS Agreement or this OBF Agreement shall constitute a breach under all of the above referenced agreements. For purposes herein, SCE may determine the OBF Agreement to be breached and Customer to be in default if Customer: (1) sells, assigns or otherwise transfers ownership, possession or title of the Site or the Equipment, (2) fails to pay the Monthly Payment amount when due, (3) closes, discontinues or otherwise causes the termination of the Service Account(s), or (4) otherwise breaches this OBF Agreement and/or the EMS Agreement, and the breach is not cured as specified therein. Notwithstanding anything to the contrary in the EMS Agreement, a breach and default as set forth in this section shall not be subject to any additional cure period. Following a breach as set forth in this section, SCE shall have the right to declare the entire unpaid balance of the Loan Obligation immediately due and payable. Purchase Money Security Interest: Customer hereby agrees that SCE may, but is not obligated to, file a UCC -1 ( "Financing Statement ") against the Equipment to secure Customer's obligation to repay the Amount Financed. Customer agrees to execute any and all documents in connection with the Financing Statement in order for SCE to perfect its security interest in the Equipment. Customer agrees that SCE is not waiving any of its rights of recovery as against the Customer should SCE elect to file a Financing Statement. Farm 14 -792 2 05/2012 r1- -1 Confession of Judgment; Customer irrevocably authorizes and empowers SCE and SCE's attorneys, upon breach and default by Customer as described in the preceding section, to appear in any state or federal court in Los Angeles County, California, as Customer's attorney -in -fact and confess judgment against Customer by entry of a confession of judgment pursuant to Code of Civil Procedure § 1132 et. seq., or by any other appropriate means, for the full amount due plus all costs of collection, including without limitation court costs and reasonable attorneys' fees. No single exercise of the foregoing power to confess judgment will be deemed to exhaust the power, whether or not any such exercise shall be held by any court to be invalid, voidable, or void; but the power will continue undiminished and may be exercised from time to time as SCE may elect until all amounts owing under this OBF Agreement have been paid in full. Modification: Any change to this OBF Agreement must be in writing and signed by Customer and SCE; except that during any given month, if Customer is unable to make full payment on the Loan Obligation, payment arrangements may be made at SCE's sole discretion without modifying this OBF Agreement in writing. Any written modification or amendment will not be effective unless and until signed by SCE or such condition is waived by SCE in its sole and absolute discretion. Term and Termination: It is the Parties intent that the term of this OBF Agreement and the EMS Agreement run concurrently. Therefore, the OBF Agreement shall continue in effect until the Loan Obligation is paid in full Assignment; Notwithstanding anything to the contrary in this OBF Agreement, Customer may not assign its rights or delegate its duties under the Agreement. Additional Representations: Each person signing this OBF Agreement represents and warrants that he or she Is duly authorized and has the legal capacity to execute and deliver this OBF Agreement on behalf of Customer, and to perform their obligations under this OBF Agreement. Customer further represents and warrants that if it Is a legal entity, it is in good standing in its state of formation. Miscellaneous: Except as otherwise specifically provided herein, all terms, provisions, covenants, representations, warranties, agreements and conditions of the EMS Agreement shall remain unchanged and in full force and effect. Should a conflict exist between this OBF Agreement, the EMS Agreement and the documents incorporated by reference, this OBF Agreement shall control. This OBF Agreement shall be construed and interpreted in accordance with, and shall be governed and enforced In all respects according to, the laws of the State of California. This OBF Agreement may be executed In one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. If any one or more of the provisions contained in this OBF Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, then this OBF Agreement shall be construed as if such invalid, illegal or unenforceable term or provision had never been contained herein and all other provisions of this OBF Agreement shall be construed to remain fully valid, enforceable and binding on the parties. The Recitals set forth above are hereby incorporated herein by reference. [Remainder of page intentionally left blank] Form 14 -792 05/2012 20B -41 IN WITNESS WHEREOF, the Parties have executed this OBF Agreement as of the Effective Date. Customer: Authorized Representative: Southern California Edison Company: Authorized Representative: Title: Title: Signature: Signature: Date: Date: Business Address: Business Address: Telephone No. Telephone No. Fax No. Fax No. E -Mail Address: E -Mail Address: APPROVED AS TO FORM LISA E, STORCK Assistant City Attorney Form 14 -792 0512012 20B-42 Customer Name: OBF Loan Number: Site Service Account Number OBF Billing Repayment Service Account Number 1' Monthly OBF Loan Payment Remaining Monthly OBF Loan Payments X -XXX- XXXX -XX X- XXX- XXXX -XX $XX.XX $XXX.XX per month for X months Total Monthly Repayment $XX.XX $XXX.XX per month for X months Form 14 -792 05/2012 20B-43 r�- „