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HomeMy WebLinkAboutMINUTES - 03132012 - C.62RECOMMENDATION(S): APPROVE and AUTHORIZE the Conservation and Development Director, or designee, to execute a contract in the amount of $37,250 with Crockett Cogeneration, L.P., for the period beginning March 13, 2012, and continuing until terminated based on the terms of the contract, to provide design review, plan check and construction inspection services for modifications to the Crockett Cogeneration Facility. FISCAL IMPACT: All County costs incurred related to this contract will be fully recovered through fees charged to the power plant operator, Crockett Cogeneration, L.P. BACKGROUND: The Crockett Cogeneration Facility is an electric power generating facility APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 03/13/2012 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS AYE:John Gioia, District I Supervisor Gayle B. Uilkema, District II Supervisor Mary N. Piepho, District III Supervisor Karen Mitchoff, District IV Supervisor ABSENT:Federal D. Glover, District V Supervisor Contact: Jason Crapo 925 674 7722 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: March 13, 2012 David Twa, County Administrator and Clerk of the Board of Supervisors By: Carrie Del Bonta , Deputy cc: C.62 To:Board of Supervisors From: Date:March 13, 2012 Contra Costa County Subject:Contract to Provide Building Inspection Services Crockett Cogeneration Facility BACKGROUND: (CONT'D) under the jurisdiction of the California Energy Commission (CEC). Crockett Cogeneration, L.P., has applied to the CEC to make modifications to the facility. A decision on this application is expected to be made by the CEC on or about March 14, 2012. CEC staff has requested that the Department of Conservation and Development (DCD), Building Inspection Division, serve as Chief Building Official for these modifications to the Crockett Cogeneration Facility. The County Building Inspection Division has extensive prior experience providing building inspection services for power plant projects, and has served in the capacity of Chief Building Official for previous power plant projects on behalf of the CEC. On March 13, 2012, the Board of Supervisors will consider a related proposed Board Order authorizing DCD to execute a Memorandum of Understanding (MOU) with the CEC that, if approved, will authorize DCD to provide building inspection services for this project. The MOU directs DCD to enter into a contract with the project owner, Crockett Cogeneration, L.P., so that DCD can recover its costs for providing services. The proposed contract (subject of this Board Order) will fulfill the requirements of the proposed MOU. CONSEQUENCE OF NEGATIVE ACTION: If the proposed contract is not approved, DCD will not be able to provide building inspection services for the modifications to the Crockett Cogeneration Facility. CHILDREN'S IMPACT STATEMENT: N/A ATTACHMENTS Contract C:\Users\jmchuen\AppData\Local\Temp\10441_Crockett Cogen Contract - Final.doc 1 AGREEMENT BETWEEN CONTRA COSTA COUNTY AND CROCKETT COGENERATION, L.P., FOR FEES, COMPLIANCE VERIFICATION, AND ENFORCEMENT FOR THE CROCKETT COGENERATION PROJECT MODIFICATIONS Effective March 13, 2012 (“Effective Date”), Contra Costa County, a political subdivision of the State of California (“County”), and Crockett Cogeneration, L.P., a California limited partnership (“Crockett”), mutually agree and promise as follows: RECITALS A. Crockett owns the Crockett Cogeneration Project, a 240-megawatt cogeneration facility located in community of Crockett, adjacent to the Carquinez Strait waterfront (east of the Carquinez Bridge), in the unincorporated area of Contra Costa County (the “Project”). Crockett intends to modify the project by installing electric motor-driven natural gas compression equipment weighing up to 65,000 pounds and with a maximum output of 1,500 horsepower amidst the existing generating equipment (the “Project modifications”). B. The California Energy Commission (“CEC”) has the exclusive power to certify all thermal electric power plants 50 megawatts (MW) or larger in the State of California and all sites on which power plants are located. The issuance of a certificate by the CEC is in lieu of any permit, certificate, or similar document required by any state, local or regional agency, or federal agency to the extent permitted by federal law, for the use of a power plant and its site, and the certificate supersedes any applicable statute, ordinance, or regulation of any state, local, or regional agency, or federal agency to the extent permitted by law. C. The CEC has delegated its authority for compliance verification and its authority as Chief Building Official to the County, through its Deputy Director of Conservation and Development, Building Inspection Division, pursuant to the following: Title 20, California Code of Regulations, section 1770; and the Memorandum of Understanding between the California Energy Commission and Contra Costa County for Design Review, Plan Check and Construction Inspection of the Crockett Cogeneration Project Amendment 92-AFC-1C (effective March 13, 2012). D. The purpose of this Agreement is to confirm the County’s authority as the CEC’s delegate for compliance verification and enforcement and as the Chief Building Official of the Project, and to otherwise specify the rights and obligations of the parties as they pertain to the Project. E. The CEC is anticipated to adopt a Project Amendment to the Crockett Cogeneration Project, CEC Docket No. 92-AFC-1C (“Project Amendment”), on March 14, 2012, which describes additional structures and equipment authorized for inclusion in the Project. F. Pursuant to the Decision, Crockett is responsible for ensuring that the general compliance conditions and the conditions of certification are satisfied. Failure to comply with any of the conditions of certification or the general compliance conditions may result in the CEC’s C:\Users\jmchuen\AppData\Local\Temp\10441_Crockett Cogen Contract - Final.doc 2 revocation of certification, imposition of an administrative fine, or other action as deemed appropriate by the CEC. The ultimate responsibility for facility design, construction, and operation compliance is with Crockett. G. As the CEC’s delegate, the County, through its Deputy Director of Conservation and Development, Building Inspection Division, is authorized to enforce local building codes as adopted by the County, the California Building Code, conditions of certification in the technical areas of facility design, geology; and transmission system engineering, and other engineering laws, ordinances, regulations, and standards of the County applicable to the project to ensure health and life safety. As the CEC’s delegate, the County, through its Deputy Director of Conservation and Development Building Inspection Division, is authorized to perform the following tasks: design review, plan checking, and construction inspection of the foundation, anchorage, and connections for those buildings and non- building structures, process-related systems and equipment required for power generation, and equipment located either inside or outside of buildings or structures that are within the scope of the Project Amendment. As the Chief Building Official, the County through its Deputy Director of Conservation and Development, Building Inspection Division, is authorized by CEC to take any action allowed by law to ensure compliance with the terms and conditions of the decision relating to local building codes, the California Building Code, the conditions of certification for facility design, geology and transmission system engineering, and applicable engineering laws, ordinances, regulations, and standards of the County. H. The CEC has final authority and responsibility to enforce the terms and conditions of its Decision. I. Crockett has represented to the County that the Project modifications will cost an estimated $2 million and that the planned Project modifications construction period will be 3 months. NOW, THEREFORE, the parties agree as follows: AGREEMENT 1. Definitions. As used in this Agreement, the following terms shall have the following meanings: A. “CBO” – Chief Building Official. The powers and duties of the CBO include those set forth in the 2010 California Building code, Section 104.2. The CEC has delegated its authority as CBO for the Project to the County, through its Director of Building Inspection. B. “CEC” – California Energy Resources Conservation and Development Commission. C. “Decision” – Crockett Cogeneration Project Amendment, CEC Docket No. 92- AFC-1C. C:\Users\jmchuen\AppData\Local\Temp\10441_Crockett Cogen Contract - Final.doc 3 D. “Deputy Director of Building Inspection” – The Deputy Director of Conservation and Development, Building Inspection Division, or his or her designee. E. “MOU” – The Memorandum of Understanding Between the California Energy Commission and Contra Costa County for Design Review, Plan Check and Construction Inspection of the Crockett Cogeneration Project Amendment, CEC Docket No. 92-AFC-1C (effective March 13, 2012). The MOU is attached to this Agreement. F. “Power Plant Site Complex” – The location of the Crockett Cogeneration Project. The Power Plant Site Complex is a 2.6-acre site located at 830 Loring Avenue, in the community of Crockett, adjacent to the Carquinez Strait waterfront (east of the Carquinez Bridge), in the unincorporated area of Contra Costa County. G. “Premises” – The Project, Power Plant Site Complex, and related facilities. H. “Project” – The Crockett Cogeneration Project. The Project is a 240-megawatt cogeneration facility located in community of Crockett, adjacent to the Carquinez Strait waterfront (east of the Carquinez Bridge), in the unincorporated area of Contra Costa County (the “Project”) I. “Project modifications” – The Crockett Cogeneration Project Amendment. The Project modifications include the installation of electric motor-driven natural gas compression equipment weighing up to 65,000 pounds, with a maximum output of 1,500 horsepower, amidst the existing generating equipment. 2. Term. Unless sooner terminated as provided in this Agreement, the term of this Agreement shall be from its Effective Date until both of the following occur: the County’s obligations to the CEC under the MOU have been completed, and Crockett has paid the entire Fee as described in section 4, below. 3. County Authority. Crockett acknowledges and agrees that the County, through its Deputy Director of Conservation and Development, Building Inspection Division, is the CEC’s delegate for purposes of compliance verification and is the CBO for the Project modifications. Crockett acknowledges and agrees that the CEC has authorized the County to take the actions described below pertaining to the Project modifications. Crockett agrees to cooperate with the County and follow all County orders and directives regarding the Project modifications. A. The County has the right to enforce all local building codes, the California Building Code, conditions of certification in the technical areas of facility design, geology, and transmission system engineering, and other laws, ordinances, regulations and standards of the County applicable to the Project modifications as necessary to ensure health and life safety. C:\Users\jmchuen\AppData\Local\Temp\10441_Crockett Cogen Contract - Final.doc 4 B. The County has the right to perform design review, plan checking and construction inspection of the foundation, anchorage, and connections for building and non- building structures, process-related systems and equipment required for power generation, and equipment located either inside or outside of buildings or structures that are within the scope of the Project Amendment. C. The County will provide CBO services for the Project modifications as delegated by the CEC. D. The County also has the right to undertake other CEC duties and authority as may be delegated to the County by the CEC. 4. Fees. Crockett acknowledges and agrees that the County is entitled to receive fees for the services provided to the Project modifications by the County as the CEC’s delegate. Crockett agrees to pay these fees directly to the County. The parties have agreed that the amount of the required fees is as follows and shall be paid as described herein: A. Subject to Section 9, Crockett shall pay the County a fee of $37,250.00 (“Fee”) for the services provided to the Project modifications by the County as the CEC’s delegate. Crockett and the County agree that the Fee is reasonable and is based upon an estimated Project modifications construction cost of $2 million and a planned Project modification construction period of 3 months. Payment of the Fee is due in full at the time plans are submitted by Crockett to the County for review. B. The Fee may be increased if, after consulting with the California Energy Commission Compliance Project Manager assigned to the Project, the Deputy Director of Conservation and Development, Building Inspection Division determines that the actual Project modifications construction scope or activities have increased relative to the construction scope or activities contemplated in the California Energy Commission Final Decision for the Project modifications. Any Fee increase shall be in proportion to increases in the Project modifications construction costs resulting from the increase in the actual Project modifications construction scope or activities. 5. Right of Entry. The County is hereby guaranteed and granted access to the Premises, including the Project, the Power Plant Site Complex, related facilities, project-related staff, and the records maintained by Crockett, for the purpose of conducting audits, surveys, inspections, or general site visits, or otherwise acting as the CEC’s delegate. Although the County will normally schedule site visits on dates and times agreeable to Crockett, the County reserves the right to make unannounced visits at any time. The County shall not be liable in any manner for any inconvenience, disturbance, loss of business, nuisance, or other damage arising out of the County’s entry on the Premises, except as otherwise provided in Section 11 of this Agreement. Any and all personnel, designees and agents of the County shall, at all times while on the Premises, comply with the safety and security protocols of Crockett or the Engineering Procurement and Construction Contractor charged with control of the site. C:\Users\jmchuen\AppData\Local\Temp\10441_Crockett Cogen Contract - Final.doc 5 6. Documents. Crockett shall give the County unrestricted access to all Project modification files upon the County’s request. The Project modification files are defined as copies of all “as-built” drawings, all documents submitted as verification for conditions, plans, specifications, engineering calculations, diagrams, soil investigation reports, special inspection and structural observation programs, and all other documents related to construction of the Project modifications. Crockett shall maintain access to all Project modification files on-site during the period of construction, operation and maintenance of the Project modifications until the Project modifications permanently cease operation. Electronic copies of a complete set of all approved plans, specifications, calculations and marked-up as-builts for the Project modifications shall be provided by Crockett to the County in the form of compact discs within 90 days of completion of construction. 7. Subcontracts and Assignments. This Agreement shall inure to the benefit of and shall be binding on the parties and their assignees. The County may subcontract any portion of the services provided by the County under this Agreement upon written consent by Crockett such consent not to be unreasonably withheld. Either Party to this Agreement may assign its rights under the Agreement upon written consent of the other Party. 8. No Third Party Beneficiaries. Nothing in this Agreement is intended, nor shall it be construed, to create rights inuring to the benefit of third parties. 9. Termination. This Agreement may be terminated by either Party, at its sole discretion, upon thirty (30) days’ written notice to the other Party. If either Party terminates this Agreement, Crockett shall pay to the County all installment payments due, or previously due, at the time of termination. 10. Insurance. A. Crockett shall, at no cost to County, obtain and maintain during the term of this Agreement, Commercial General Liability Insurance, including Automobile Liability, Broad Form Property Damage and Blanket Contractual Liability, with minimum combined single-limit coverage of $2 million, naming County, its officers and employees as additional insureds. B. Crockett shall at no cost to County, obtain and maintain during the term of this Agreement, workers’ compensation insurance, as required by state law. C. Crockett shall promptly furnish to County certificates of coverage evidencing such coverage requiring 30 days’ written notice to County of policy lapse, cancellation or material change in coverage. 11. Indemnification. Crockett shall indemnify, defend, save, protect and hold harmless County, its governing body, elective and appointed boards and commissioners, officers, employees, representatives and agents (“Indemnitees”), to the fullest extent not prohibited by the applicable law, from any and all demands, losses, claims, costs suits, C:\Users\jmchuen\AppData\Local\Temp\10441_Crockett Cogen Contract - Final.doc 6 penalties, fines, liabilities and/or expenses for any damage, injury or death (collectively “Liability”) arising directly or indirectly from or connected with matters covered by this Agreement, including but not limited to the design, construction, maintenance, repair, reconstruction, alteration, replacement, removal or use of any or all of the Project and Project modifications by Crockett or by any other persons or entity, or Crockett’s breach or violation of any term or condition of this Agreement, save and except claims or litigation which a court determines arose through the sole gross negligence or willful misconduct of the Indemnitees. Crockett shall make good to and reimburse Indemnitees for any expenditures, including reasonable attorney’s fees, any of the Indemnitees may make by reason of such aforementioned matters. Under no circumstance shall the Indemnitees have any liability to Crockett or to any other person or entity, for consequential or special damages, or for any damages based on loss of use, revenue, profits or business opportunities, arising from or in any way relating to any action taken or failure to act by the Indemnitees or any of them. Crockett hereby forever waives and releases Indemnitees, from any and all claims to consequential or special damages, and for any damages based on loss of use, revenue, profits or business opportunities arising from or in any way related to this Agreement. This indemnification clause shall survive the termination or expiration of this Agreement but shall only apply to acts or omissions that occurred when the contract was in effect. Crockett’s obligations under this section shall exist regardless of whether any Indemnitee has inspected the Project or the Project modifications or has approved any plan(s) or specification(s) in connection with the Project or the Project modifications, or has insurance or other indemnification covering any of these matters. 12. Immunities. Crockett acknowledges and agrees that the County retains the right to assert any and all applicable governmental immunities, including, but not limited to the immunity granted under California Government Code section 818.6. 13. Enforcement. Any failure by Crockett to pay all or any portion of the Fee within thirty (30) days of the date such amount is due pursuant to the provisions of Section 4 shall constitute a material breach of this Agreement. Any failure by Crockett to comply with any other term or condition of this Agreement shall constitute a material breach of this Agreement. In the event of such a breach, at its sole option, County may: (a) declare this Agreement null and void and file suit to collect any amount due and owing; and/or (b) file suit to enforce this Agreement in which case interest on any delinquent payment shall accrue from the date of delinquency at the rate provided by law; and/or (c) to the extent permitted by law, exercise any other remedy available to the CEC or allowed at law or in equity. This section shall not infringe upon the CEC’s legal authority to enforce the terms and conditions of the Decision nor preclude the CEC from exercising all remedies available to it to the extent permitted by law. 14. Applicable Law. This Agreement shall be governed by and construed in accordance with the substantive laws of the State of California without regard to its conflict of laws rules. C:\Users\jmchuen\AppData\Local\Temp\10441_Crockett Cogen Contract - Final.doc 7 15. Notice. All correspondence regarding this Agreement, including invoices, payments and notices, shall be directed to the following persons at the following addresses and telephone numbers: COUNTY: Jason Crapo, Deputy Director Conservation & Development Department Building Inspection Division Contra Costa County 651 Pine Street, 3rd Floor, North Wing Martinez, CA 94553 CROCKETT: Dan Consie Asset Manager Consolidated Asset Management Services 34759 Lencioni Avenue Bakersfield, CA 93308 16. Construction. The section headings and captions of this Agreement are, and the arrangement of this instrument is, for the sole convenience of the parties to this Agreement. The section headings, captions and arrangement of this instrument do not in any way affect, limit, amplify or modify the terms and provisions of this Agreement. This Agreement shall not be construed as if it had been prepared by one of the parties, but rather as if both parties have prepared it. The parties to this Agreement and their counsel have read and reviewed this Agreement and agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply to the interpretation of this Agreement. The Recitals are, and shall be enforceable as, a part of this Agreement. 17. Severability. If any term or provision of this Agreement is, to any extent, held invalid or unenforceable, the remainder of this Agreement shall not be affected. 18. Authorizations Obtained. The person executing this Agreement on behalf of Crockett represents that her or she has the requisite legal authority to enter into this Agreement on behalf of Crockett and to bind Crockett to the Terms of this Agreement. The person executing this Agreement on behalf of the County represents that he or she has the requisite legal authority to enter into this Agreement on behalf of the County and to bind the County to the terms of this Agreement. 19. Entire Agreement. This Agreement contains the entire agreement between the parties and all prior understandings or agreements, oral or written, regarding this matter are superseded. This Agreement shall not be modified except by written mutual agreement signed by the parties. [Signatures on following page] C:\Users\jmchuen\AppData\Local\Temp\10441_Crockett Cogen Contract - Final.doc 8 CONTRA COSTA COUNTY CROCKETT COGENERATION, L.P. By: By: Jason Crapo Deputy Director, Building Inspection Division [Name] [Title]