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HomeMy WebLinkAboutKiewit-Shea II; 2022-11-16;ELECTRICITY USE AGREEMENT BETWEEN THE CITY OF CARSLBAD AND KIEWIT-SHEA II FOR USE OF THE ELECTRIC PANEL AT FIRE STATION NO. 7 This Electricity Use Agreement ("Agreement") is entered into between the City of Carlsbad, a municipal corporation (hereinafter referred to as "City") and Kiewit-Shea II, a Joint Venture (hereinafter referred to as "Contractor) regarding consumption of electricity as described below. City and Contractor are hereinafter referred to individually as "Party" and collectively as the "Parties". RECITALS A.Cabrillo Power I LLC, a Delaware limited liability company, ("Cabrillo Power'') owns real property located at 4600 Carlsbad Boulevard in Carlsbad, California 92008 (the "Property"). B.Cabrillo Power currently leases a portion of the property to Poseidon Resources LLC. C. Poseidon Resources LLC has retained Contractor to temporarily perform variousconstruction-related services on the Property D. Contractor estimates their construction-related services on the Property will conclude in winter 2023. E.The City recently executed a License Agreement ("License") with Cabrillo Power whereby the City will locate three temporary structures on a portion of the Property ("Licensed Premises") to serve as a temporary Fire Station ("Fire Station"). F.The City expects construction of the Fire Station to begin sometime in November 2022. G. The Fire Station will be served by an existing San Diego Gas & Electric Company ("SDG&E") electrical meter service ("Master Meter") adjacent to the Licensed Premises. A diagram of the Master Meter's location in relation to the proposed Fire Station and Contractor's trailers is attached as Attachment A.H.Billing for the SDG&E Master Meter is anticipated to transition to the City of Carlsbad immediately before the City connects any service lines to the Master Meter. I.Contractor's construction operations require access to the Master Meterbeginning in September 2022. J.This Agreement governs the responsibilities and terms between City and Contractor since Contractor desires to install a sub-meter off the Master Meter to measure, and pay for, the amount of electricity Contractor consumes from the Master Meter when City and Contractor's operations coincide on the Licensed Premises. AGREEMENT NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, the Parties hereby agree as follows: I.Project Description (hereinafter referred to as "Project") All charges for electricity that Contractor consumes from the Master Meter after responsibility for the Master Meter transitions to the City will be measured by an electronic sub-meter. The sub­meter shall be read monthly by City staff or a city representative on the same day SOG&E reads Page 1 of7 the Master Meter so Contractor's electricity usage coincides with the SDG&E billing cycle. Contractor's electricity bill will be computed by the City, or a city representative, based on the amount of electricity consumed by Contractor according to the sub-meter and on the then­current actual cost of electricity charged by SDG&E for the delivery of electricity to the Property. The rates and charges Contractor will pay the City shall be based on the percentage of kilowatt­hours ("kWh") Contractor uses during a given SDG&E billing cycle. For example, if a reading of the sub-meter reveals Contractor uses 40 kWh for a billing cycle, and SDG&E's reading of the Master Meter reveals a total usage of 100 kWh, Contractor shall pay city 40% of the dollar amount of the City's total current electricity charges the SDG&E bill as described below. II.Responsibilities of the Parties 1.City agrees to: A.Inspect Contractor's commissioning documents for the sub-meter and visuallyinspect the sub-meter once Contractor places the sub-meter into service. B.Read the sub-meter at the end of each SDG&E billing cycle concurrent with SDG&E's reading of the Master Meter. C.Send an invoice to Contractor for electricity consumed by Contractor within 30 working days following the City's receipt of the SDG&E bill for the Master Meter. This invoice will include a copy of the City's SDG&E bill for the Master Meter anddetail: •The total dollar cost of electricity incurred by both the City and Contractor•The amount of kWh's Contractor consumed as identified by the most recent reading of the sub-meter ("Sub-Meter Reading")•The dollar amount Contractor must pay to City. This amount shall becalculated by first expressing the Sub-Meter Reading in terms of apercentage of the total number of kWh's used by both City andContractor. For example, if the combined number of kWh's used by both City and Contractor is 100 kWh's for a billing cycle, and Contractor's Sub­Meter Reading is 20 kwh, Contractors' percentage of electricity use shallbe expressed as 20%. Contractor shall then multiply this percentageagainst the City's "total current charges" for electricity, which amount isthe sum of all: (1) total electric charges; (2) taxes and fees on electriccharges; and (3) all Clean Energy Alliance or CCA Electric Generationcharges. If the "total current charges" for electricity total $200, Contractorwould then owe City $40. D.Read the sub-meter immediately before the City makes any connection to theMaster Meter. E.Read the sub-meter at the conclusion of Contractor's activities on the last day ofContractor's occupation of the Licensed Premises. F.Generate a ''first" and "final" bill for Contractor which will list the dollar amount ofelectricity Contractor uses, calculated pursuant to Section II (1)(C), that does not Page 2 of 7 Ill. coincide with SDG&E's billing cycle. City will apply payment of the "final bill" from Contractor's deposit, described in Section II (2)(A) below. G.City will send Contractor any unused balance from the deposit described inSection II (2)(A) below along with the "final bill". 2.Contractor agrees to: A.Place as a deposit with the City $3,000 or "Deposit". The Deposit represents asum equivalent to two months of Contractor's estimated average electricity cost. 8.Contractor shall pay to City the dollar amount equivalent to the percentage of kWh it used based on the actual cost of the energy consumed in accordance withSection II (1 )(C) above during the applicable billing cycle. C.For the first billing cycle when both City and Contractor use the Master Meter, Contractor shall pay a percentage of electricity use based on the amount ofelectricity Contractor uses, based on the Sub-Meter Reading in accordance withSection 11(1 )(C) D.Pay each invoice for electricity usage within 30 days' receipt of the invoice. E.Pay any charge Contractor or City incurs for commencing or terminating electricservice via the sub-meter. F.Pay all costs charged to Contractor by its sub-metering company. G.Pay all capital and repair costs of the electronic sub-metering equipment if any such costs arise during the term of this Agreement. H.Install, maintain, and otherwise be responsible for commissioning the accuracy ofthe sub-meter used to measure the amount of electricity consumed by Contractor. I.Provide City documents demonstrating the successful commissioning of the sub­meter upon request concurrent with the placement of deposit described insubsection A above. J.Upon completion of the Project, return all sub-metering equipment to the sub­ metering company. Deposit Amount The Deposit amount Contractor shall provide City described in Section 11(2)(A) is based on the electricity usage of other temporary construction-related trailers at the Police & Fire Headquarters and represents the City's best estimate of the cost of two-months' worth of Contractor's electricity usage at the Property. IV.Governing Law and Venue The Agreement shall be governed by the laws of the State of California. Any action at law or in Page 3 of 7 equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be filed in a court of competent jurisdiction in the County of San Diego, California. The Parties waive all provisions of law providing for a change of venue in these proceedings to any other county. V.Records Retention and Inspection of Records The Parties shall have access to and the right to examine, audit, excerpt, copy or transcribe any pertinent records pertaining to the Agreement. All records shall be kept and maintained by City and made available to Contractor. VI.Indemnity and Hold Harmless Contractor agrees to defend, indemnify, and hold harmless City, its affiliated and subsidiary entities, and its elected and appointed officials, officers, directors, managers, employees and agents from and against all claims asserted, liability established, or judgments for damages or injuries to any person or property, including to Contractor's officers, employees, agents, or subcontractors, arising directly or indirectly out of this Agreement, which arise from, are connected with, or are caused or claimed to be caused by the acts or omissions of Contractor, its officers, employees, agents or subcontractors. Contractor's duty to defend, indemnify, and hold harmless shall not include any claims or liabilities arising from the sole negligence or sole willful misconduct of the City, its agents, officers or employees. Contractor further agrees that its duty to defend includes all attorney fees and costs associated with enforcement of this indemnification provision, defense of any claims arising from this Agreement, and, where a conflict of interest exists or may exist between Contractor and City, the reasonable value of attorney fees and costs if City chooses, at its own election, to conduct its own defense or participate in its own defense of any claim related to this Agreement. VII.Modifications This Agreement may not be modified, amended, or otherwise changed unless by an amendment, in writing, executed by the parties hereto. VIII.Complete Agreement The foregoing constitutes the full and complete agreement of the parties. There are no oral understandings or agreements not set forth in writing herein. SIGNATURE PAGE TO FOLLOW Page 4 of 7 IN WITNESS WHEREOF, the Parties hereto have executed thJs MOU as of the dates set forth below. This MOU shall be effective on the date of the last signature set forth below. CITY OF CARLSBAD, a munlclpal corporation Signature: Name (please print): Title: Date: fr Soott Chaqwick City Manager APPROVED AS TO FORM: Cindie K. McMahon, City Attorney KIEWIT-SHEA II,a Joint Venture Signature: Name (please print): Title: Date: Signature: Name (please print): Title: Date: �� Area Manager, Vice President 10/24/2022 -t�]t QJ etfYl Paola J. Ryan Assistant Secretary 11/2/2022 Proper notarial acknowledgment of execution by contractor must be attached. If a corporatJon, Agreement must be signed by one corporate officer from each of the following two groups: Group A Chairman, President, orVice-President GroupB Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation 1I!.YII attach a resolution certified by the secretary or assistant Page5of7 secretary under corporate seal empowering the officer(s) signing to bind the corporation. Page 6 of 7 ew1 amp rrn ers \ \ \ ATTACHMENT "A" I . E1 ·a,=xis11ng Master Meler] { CL'-_j_J O • • II I CjJ I I I I I I I I I I I �i'-1 I I I I I I I Page 7 of 7 CALIFORNIA ACKNOWLEDGMENT CIVIL CODE § 1189 008080li J IJillD'!6l�JOOll008ftl�Ql88�r.8r.81888111R8t0.'l20i@Oio/Bl!lil!181ilOIIDMMMIIDllJ81J81iDGlffCOlJOOlDll08i00811U880IMOIOOIQOIQ!OQ!OOillOMIMUttl;i A notary public or other officer completing this certificate verifies only the identity of the Individual who signed the document to which this certificate Is attached, and not the truthfulness, accuracy, or validity of that document. State of California county of Los Angeles } on November 2, 2022 before me, Roztta AhKi o ng, Notary Public Date Here Insert Name and Title of the Officer personally appeared _____ B_r _ia_n_J_. R_a--'p-"_p __ Vi_1c_e_P_re_s _id_e _nU_A_r_e _a _M_a_n-'ag=--e_r_: a_n_d ______ _Nome(s) of Signer(s) Paola J. Ryan, Assistant Secretary who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capaclty(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the Instrument. 12'10734 Comm. Elr{lltes Alli 11, 2026 -· Place Notary Seal and/or Stomp Above I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. OPTIONAL Completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Electrici ty Use Agreement -Carlsbad Document Date: October 24, 2022 Number of Pages: _'I�--- Signer(s) Other Than Named Above: __ no_o_th_e_r _s�ig_n_e r�(�s) _______________ _ Capaclty(les) Claimed by Slgner(s) Signer's Name: _,B""r.,,iaa.:.n.:.J·:..aR.::a:.cp..,p _______ _ ✓Corporate Officer -Title(s): Vjce Presjdent-Partner -, Limited I General-Individual, Trustee-Other: □Attorney In Fact□Guardian of Conservator Signer is Representing: Kiewit Infrastructure West Co Signer's Name: ..:P...,a:::oe.::la:..:J,,_. �R...,ya:::.n,__ ______ _ 121 Corporate Officer -Title(s): Assistant Secretary □Partner -□ Limited □ General□Individual □Attorney in Fact□Trustee □Guardian of ConservatorD Other: Signer Is Representing: Klewjt Infrastructure West Co 81o•l!oooo1o�Jooooooo:ia1100•0:Jooo:ooooooooo:ia•oosmxrrnnnrxw ©2018 National Notary Association OOIOM