HomeMy WebLinkAbout11752RESOLUTION NO. 11752
A RESOLUTION APPROVING AN AGREEMENT
BETWEEN THE CITY OF PUEBLO, A MUNICIPAL
CORPORATION AND JOHNSON CONTROLS, INC. FOR
PERFORMING AND COMPLETING A TECHNICAL
ENERGY AUDIT AND PROJECT PROPOSAL, AND
AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO
EXECUTE SAME
WHEREAS, on September 10, 2009, the City of Pueblo received proposals from
Energy Service Companies who were pre - qualified and registered by the State of
Colorado Governor's Energy Office Performance Contracting Program to complete a
Technical Energy Audit and Project Proposal ( "Project'); and
WHEREAS, the proposal from Johnson Controls, Inc. was determined to be a
competitive and reasonable price to complete Technical Energy Audit and Project
Proposal Phase for the Project;
BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1.
Johnson Controls, Inc. is hereby accepted and approved as the consultant to
perform the Technical Energy Audit and Project Proposal services for the Project.
SECTION 2.
An Agreement dated November 23, 2009, for the Technical Energy Audit and
Project Proposal services for the Project, a copy of which is attached hereto and made
a part hereof, after having been approved as to form by the City Attorney, by and
between the City of Pueblo, a Municipal Corporation, and Johnson Controls, Inc., is
hereby approved.
SECTION 3.
The President of City Council is hereby authorized to execute and deliver the
Agreement in the name of and on behalf of the City of Pueblo, a Municipal Corporation,
and the City Clerk shall affix the seal of the City thereto and attest the same.
SECTION 4.
The cost for the Technical Energy Audit and Project Proposal will not exceed
$52,192.00 and will be paid based on the following options:
1. If the City and JCI enter into an Energy Performance Contract any
compensation owed to JCI attributable to completion of the Technical Energy
Audit and Project Proposal shall be paid exclusively through the funding
mechanisms set forth in the Energy Performance Contract.
2. In the event the City and JCI do not enter into an Energy Performance
Contract, funds to pay for all costs for the completion of the Technical Energy
Audit and Project Proposal will be budgeted and appropriated as part of a mid-
year budget adjustment in 2010.
INTRODUCED: November 23, 2009
BY: Judy Weaver
COUNCILPERSON
APPR D' } �.
PRESIDENTaf Cfty Council
A77TSTED DY:
CITY CLERK
ON aim I ff. NO=
Background Paper for Proposed
RESOLUTION
DATE: NOVEMBER 23, 2009
AGENDA ITEM # M-4
DEPARTMENT: PLANNING AND COMMUNITY DEVELOPMENT
JERRY M. PACHECO, DIRECTOR
PUBLIC WORKS DEPARTMENT
EARL WILKINSON, P.E., DIRECTOR
TITLE
A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF PUEBLO, A
MUNICIPAL CORPORATION AND JOHNSON CONTROLS, INC. FOR PERFORMING AND
COMPLETING A TECHNICAL ENERGY AUDIT AND PROJECT PROPOSAL, AND
AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE SAME
ISSUE
Should the City Council approve an Agreement with Johnson Controls, Inc. ( "JCI ") to complete a
Technical Energy Audit and Project Proposal ( "Project')?
RECOMMENDATION
Approval of the Resolution.
BACKGROUND
The Project includes completion of a comprehensive energy audit, audit report and
recommendations for energy efficiency projects and estimated energy cost savings that could
be completed as part of an Energy Performance Contract. JCI is pre - qualified and registered
by the Governor's Energy Office to complete a Technical Energy Audit.
FINANCIAL IMPACT
The cost for the Technical Energy Audit and Project Proposal will not exceed $52,192.00 and
will be paid based on the following options:
1. If the City and JCI enter into an Energy Performance Contract any compensation owed
to JCI attributable to completion of the Technical Energy Audit and Project Proposal
shall be paid exclusively through the funding mechanisms set forth in the Energy
Performance Contract.
2. In the event the City and JCI do not enter into an Energy Performance
Contract, funds to pay for all costs for the completion of the Technical Energy
Audit and Project Proposal will be budgeted and appropriated as part of a mid-
year budget adjustment in 2010.
Contract for Technical Energy Audit and Project Proposal
THIS AGREEMENT made and entered this 23rd day of November 2009 by and between
the City of Pueblo, a Municipal Corporation (herein after "Owner ") and Johnson Controls, Inc.,
(hereinafter called "Contractor ") ,
WHEREAS, the City of Pueblo is the owner of a number of public facilities which consume
energy and water; and
WHEREAS, the State of Colorado Governor's Energy Office coordinates a program under § 24-
30 -2001, C.R.S., under which approved entities may contract with local governments for
Technical Energy Audits And Project Proposals; and
WHEREAS, the purpose of the Technical Energy Audit and Project Proposal is to identify energy
and water conservation measures which, if implemented, will over a period of time justify the
cost of the Technical Energy Audit and Project Proposal; and
WHEREAS, the parties wish to establish the terms and conditions under which Contractor will
perform the Technical Energy Audit and Project Proposal, compensation for which will either be
paid through an Energy Performance Contract to be later negotiated or, if no such Energy
Performance Contract is entered into, such compensation will be paid directly to Contractor.
NOW, THEREFORE, the parties do hereby agree as follows:
1. EFFECTIVE DATE AND NOTICE OF NONLIABILITY.
This Contract shall not be effective or enforceable until it is approved and signed by the Owner or
its designee (hereinafter called the "Effective Date "), but shall be effective and enforceable
thereafter in accordance with its provisions. The Owner shall not be liable to pay or reimburse
Contractor for any performance hereunder, including, but not limited to costs or expenses
incurred, or be bound by any provision hereof prior to the Effective Date.
2. RECITALS
A. Authority, Appropriation, and Approval
Authority exists in the law and funds have been budgeted, appropriated and otherwise made
available and a sufficient unencumbered balance thereof remains available for payment and the
required approval, clearance and coordination have been accomplished from and with
appropriate elected and appointed Owner officials.
B. Purpose and State's Role
This Contract is for political subdivisions to use to obtain a technical energy audit of their
facilities from a GEO pre- approved private energy service company (ESCO). The purpose of
the audit is to perform the Work set forth in §6, below.
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3. DEFINITIONS
The following terms as used herein shall be construed and interpreted as follows:
A. Contract
"Contract" means this Contract, its provisions, attached exhibits, documents incorporated by
reference under the terms of this Contract, and any future modifying agreements, exhibits,
attachments or references incorporated pursuant to Owner's Fiscal Rules and Policies.
B. Work
Work consists of the tasks Contractor is to perform in order to fulfill its obligations under this
Contract.
C. Goods
"Goods" means any physical item used, produced, or manufactured either separately or in
conjunction with the Work performed and Services rendered hereunder.
D. Services
"Services" means services performed or tangible material produced either separately or in
conjunction with the Work performed and Goods provided hereunder.
E. Subcontractor
Third -party vendors of goods and /or services, if any, are hereinafter referred to as
"subcontractors."
F. Parties
"Party" or "Parties" means one or both of the Owner and Contractor.
4. TERM and EARLY TERMINATION
A. Initial Term -Work Commencement
The initial term of this Contract shall commence on the later of either the Effective Date or
November 23, 2009, and terminate on June 19, 2011 or upon completion of Work, unless
sooner terminated as provided for below, herein. Performance of the Parties' respective
obligations under this Contract shall begin as soon as practicable following commencement of
the initial term.
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B. Temporary Extension
At its sole discretion, the Owner, upon written notice to Contractor, may unilaterally extend
the term of this Contract for a period not to exceed two months if the Parties are negotiating a
replacement contract (and not merely seeking a term extension) at or near the end of any initial
term or an extension thereof. The provisions of the Contract in effect when said notice is
given, including, but not limited to prices, rates, and delivery requirements, shall remain in
effect during said two month extension. However, the two -month extension shall immediately
terminate when and if a replacement contract becomes effective following the Owner's
approval and signature.
C. Early Termination
This Contract is subject to early termination in accordance with the provisions of the Remedies
section below herein.
5. STATEMENT OF WORK
A. Work
Contractor shall perform a Technical Energy Audit at the location(s) listed in Exhibit C,
attached hereto and incorporated by reference in accordance with the Scope of Work described
in Exhibit A, also attached hereto and incorporated by reference herein. The parties
acknowledge that Exhibit C may be modified to include and exclude locations, but all such
modifications shall be in writing and executed by both parties before such modifications are
deemed effective. The audit shall determine the feasibility and cost of implementing energy
and water saving measures for the Owner and, based on such determination, Contractor shall
submit a Project Proposal setting forth a plan for implementing such measures through an
Energy Performance Contract. Owner shall acknowledge acceptance of the Technical Energy
Audit Report in a form substantially similar to Exhibit B attached hereto. Acceptance of the
Technical Energy Audit Report shall not be construed as acceptance of the Project Proposal,
but is simply acknowledgement that the Technical Energy Audit Report has been received and
accepted by Owner. Owner shall see to it that the Notice of Acceptance of Technical Energy
Audit Report (Exhibit B) is received by Contractor within thirty (30) days of Owner's receipt
of the Technical Energy Audit Report.
Nothing in this Contract shall be construed to require Owner to enter into an Energy
Performance Contract with Contractor. However, should Owner in its sole and absolute
discretion choose to enter into an Energy Performance Contract based on Contractors Project
Proposal, such a contract shall be executed within sixty (60) days of Owner's delivery of the
Notice of Acceptance of Technical energy Audit Report (Exhibit B) to Contractor. The
deadline for execution of the Energy Performance Contract may be extended upon request by
Owner to allow Owner to secure third -party funding necessary for implementation of the
energy savings found within Contractor's Project Proposal.
Any Energy Performance Contract entered into between the parties shall comply with § 24 -30-
2001, C.R.S.
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B. Time of Performance
The Work shall be completed during the initial term or any extension thereof.
C. Goods and Services
Contractor shall procure goods and services necessary to complete the Work provided for
herein.
D. Employees
All persons employed hereunder shall be considered Contractor's or subcontractors'
employee(s) for all purposes and shall not be employees of the Owner for any purpose.
6. CONTRACTOR COMPENSATION
A. Compensation Basis and Amount
The amount of Contractor's compensation for the Technical Energy Audit and Project Proposal
shall be determined in accordance with the Fees section of the attached Exhibit A, which Fees
shall be applied only to facilities actually audited by Contractor. The Owner shall not be liable to
pay or reimburse Contractor for any performance hereunder prior to the Effective Date.
B. Payment Through Energy Performance Contract Funding Mechanisms
Should Owner and Contractor enter into an Energy Performance Contract as contemplated under
Section 5 (A) above, any compensation owed to Contractor attributable to completion of the
Technical Energy Audit and Project Proposal shall be paid exclusively through the funding
mechanisms set forth in the Energy Performance Contract.
C. Payment in the Absence of Energy Performance Contract
Should Owner and Contractor not enter into an Energy Performance Contract as provided under
Section 6 (A) above, Owner shall remit payment to Contractor for the full amount of all
compensation owed to Contractor attributable to the completion of the Technical Energy Audit
and Project Proposal, with any such compensation due under this sub - section shall be paid within
one hundred twenty (t20) days of Owner's delivery of Exhibit B. Provided, however, that if the
deadline for entering into the Energy Performance Contract is extended as allowed in sub - section
5 (A) above, the deadline for payment of compensation under this sub - section shall likewise be
extended.
D. Project With Insufficient Savings
The parties acknowledge that the purpose of the Technical Energy Audit is to enable Contractor
to identify potential energy and water savings which, if implemented, will provide Owner with
funding options sufficient to pay the costs of implementing such savings. Should the Contractor
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determine at any time during the Technical Energy Audit that savings cannot be attained to meet
Owner's terms as required by CRS §24 -30 -2001, the Technical Energy Audit shall be terminated
by written notice by the Contractor to Owner. In this event this Contract shall be terminated and
the Owner shall not be liable to pay Contractor, in whole or part, the Compensation to Contractor
specified in this Section 7.
E. Available Funds - Contingency- Remedies
The Owner is prohibited by law from making fiscal commitments beyond the term of its current
fiscal period. Therefore, Contractor's compensation is contingent upon the continuing availability
of Owner appropriations as provided in §2 of the Colorado Special Provisions, set forth below
herein. If federal appropriations or Contracts fund this Contract in whole or in part, the Owner's
performance hereunder is contingent upon the continuing availability of such funds. Payments
pursuant to this contract shall only be made from available funds encumbered for this Contract,
and the Owner's liability for such payments shall be limited to the amount remaining of such
encumbered funds. If Owner funds are not appropriated, or otherwise become unavailable to
fund this Contract, the Owner may immediately terminate the Contract in whole or in part
without further liability in accordance with the Termination for Cause subsection of the Remedies
section of this Contract. All payments are subject to the general Remedies section of this
Contract.
F. Return of Funds
Any funds paid to Contractor hereunder which are not expended in connection herewith shall be
refunded by Contractor within 30 days of termination hereof. Any funds not required to complete
Contractor's obligations hereunder shall be de- obligated by the Owner. If Contractor receives
overpayments, Contractor shall refund all excess funds to the Owner within 30 days of the later of
(1) the receipt of such funds, or
(2) the determination of such overpayment. Under no circumstances shall unexpended or
excess funds received by Contractor under this Contract be refunded or paid to any party
other than the Owner.
G. Erroneous Payments- Remedies
Payments made to Contractor in error for any reason, including, but not limited to overpayments
or improper payments may, at the Owner's sole discretion, be recovered from Contractor by
deduction from subsequent payment under this Contract or other contracts between the Owner and
Contractor, or by other appropriate methods.
7. REPORTING - NOTIFICATION
Reports and analysis required under this section shall be in accordance with procedures and in
such form as prescribed by the State of Colorado — Governor's Energy Office /GEO.
Page 5 of 23
A. Litigation
Within 15 days after being served with any pleading or process filed in a legal or
administrative proceeding in any court or administrative agency related to this Contract,
Contractor shall notify the Owner of such action and deliver copies of such pleadings to the
Owner's principal representative in accordance with the Notice section of this Contract.
B. Remedies
Contractor's failure to provide reports and notify the Owner in a timely manner in accordance
with this section may result in the delay of payment of funds and/or termination under Section
16 of this Contract.
8. CONTRACTOR RECORDS
Contractor shall make, keep, maintain and allow inspection and monitoring of the following
records:
A. Maintenance
Contractor shall maintain a complete file of all records, documents, communications, notes
and other written materials, electronic media files or communications, pertaining in any
manner to the Work. Contractor shall maintain such records for (i) a period of three years after
the date this Contract is completed or terminated or final payment hereunder, whichever is
later, or (ii) for such further period as may be necessary to resolve any pending matters, or (iii)
until an audit has been completed and its findings have been resolved.
B. Inspection
Contractor shall permit the Owner or any other duly authorized agent of a governmental
agency to audit, inspect, examine, excerpt, copy and /or transcribe Contractor's records related
to this Contract and for a period of three years following termination hereof or final payment
hereunder, whichever is later, to assure compliance with the terns hereof or to evaluate
Contractor's performance hereunder.
C. Monitoring
Contractor also shall permit the Owner or any other duly authorized agent of a governmental
agency, in their sole discretion, to monitor all activities conducted by Contractor pursuant to
this Contract using any reasonable procedure, including, but not limited to: internal evaluation
procedures, examination of program data, special analyses, on -site checking, and formal audit
examinations.
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1
9. CONFIDENTIAL INFORMATION -OWNER RECORDS
Contractor acknowledges that it may become privy to confidential information in connection with
its performance hereunder, including, but not limited to Owner records, personnel records, and
information concerning individuals.
A. Confidentiality
It shall be Contractor's responsibility to keep all Owner records and information confidential
at all times and to comply with all laws and regulations concerning confidentiality of
information to the same extent applicable to the Owner. Any request or demand for
information in the possession of Contractor made by any third party shall be immediately
forwarded to the Owner's principal representative for resolution.
B. Notification
Contractor shall notify its agent, employees, sub - contractors and assigns who may come into
contact with confidential information that they are subject to the confidentiality requirements
set forth herein, and shall provide each with a written explanation of such requirements before
they are permitted to access information.
C. Use, Security, and Retention
No confidential information of any kind shall be distributed or sold to any third party or used
by Contractor or its agents in any way, except as authorized by the Contract and as approved
by the Owner. Contractor shall provide and maintain a secure environment that ensures
confidentiality of all Owner records and other confidential information wherever located.
Confidential information shall not be retained in any files or otherwise by Contractor or its
agents, except as set forth in this Contract and approved by the Owner.
D. Disclosure - Liability
Disclosure of Owner records or other confidential information for any reason may be cause for
legal action against Contractor or its agents by third parties, and defense of any such action
shall be Contractor's sole responsibility.
E. Public Records Law Disclosures
Contractor acknowledges that, as a governmental entity, Owner may be required to disclose
public records pursuant to the Colorado Open Records Act ( §24 -72 -201, et. seq.). Contractor
agrees that, should any public records in its possession be requested for production by Owner
pursuant to a bona fide request under the Open Records Act, Contractor will provide such
documents without charge to Owner.
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10. CONFLICT OF INTEREST
A. Definition and Appearance
Contractor shall not engage in any business or personal activities or practices or maintain any
relationships which conflict in any way with the full performance of Contractor's obligations
hereunder. Contractor acknowledges that with respect to this Contract, even the appearance of
a conflict of interest is harmful to the Owner's interests. Absent the Owner's prior written
approval, Contractor shall refrain from any practices, activities or relationships that reasonably
appear to be in conflict with the full performance of Contractor's obligations to the Owner
hereunder.
B. Specific Prohibitions
Contractor's and sub - Contractor's officers, employees, or agents shall neither solicit nor accept
gratuities, favors, or anything of monetary value from Contractor, potential contractors, or
parties to sub - agreements. Contractor's employees, officers, and agents or any permitted sub -
Contractor shall not participate in the selection, award, or administration of this Contract or
sub - Contract if a conflict of interest or the appearance thereof would occur. Such a conflict
would arise when any of the following has a financial or other interest in the firm selected for
award, to -wit:
i. an employee, officer or agent;
ii. any member of the employee's immediate family;
iii. an employee's partner; or
iv. an organization, which employs, or is about to employ, any of the aforementioned.
C. Determination by Owner - Default
If Contractor is uncertain whether the appearance of a conflict of interest exists, Contractor
shall submit to the Owner a disclosure statement setting forth the relevant details for the
Owner's consideration. Failure to promptly submit a disclosure statement or to follow the
Owner's direction in regard to the apparent conflict shall be considered a material default of
this Contract.
D. Code of Performance
Contractor and sub - contractors, if any, shall maintain a written code of standards governing
the performance of their respective employees, agents, and contractors engaged in the award
and administration of this Contract. Contractor shall provide a copy of such code to the Owner
within 15 days of the Owner's written request therefore.
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FFNVAT: "t 1 1". flIII *9
A. Services and Goods
During the term of this Contract, Contractor, as part of Contractor's obligations hereunder and
at no additional cost to the Owner, warrants, as follows:
i. Specifications
All Services performed and all Goods delivered shall meet the specifications set forth in this
Contract and are acceptable to the Owner.
ii. Suits, Claims, and Actions
There are not nor will there be any pending or threatened suits, claims, or actions of any type
with respect to the Services or Goods provided, and
iii. Liens and Encumbrances
All Services performed and Goods provided are and shall remain free and clear of any liens,
encumbrances, or claims arising by or through Contractor or any party related to Contractor.
B. Standard And Manner Of Performance
Contractor shall perform the Work in accordance with the highest standard of care, skill and
diligence provided by a professional person or company in performance of similar Work.
C. Inspection and Verification
The Owner reserves the right to inspect all Services and Goods provided hereunder at all
reasonable times and places to verify that they conform to the requirements of the Statement of
Work section of this Contract.
D. Remedies
If the Contractor breaches any of its warranties, the Owner may require Contractor to promptly
perform the Services or provide Goods again in conformity with Contract requirements, at no
additional cost to the Owner. If such breaches cannot be, or are cured, the Owner may, in
addition to any other remedies provided or in this Contract, require Contractor to take
necessary action to ensure that future performance conforms to the provisions of this Contract;
and equitably reduce the payment due to Contractor to reflect the reduced value of the Services
performed or Goods provided. Any reduction, delay or denial of payment under this provision
shall not constitute a breach of Contract or default by the Owner.
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12. REPRESENTATIONS
A. Licenses, Permits, Etc.
Contractor warrants that as of the Effective Date it has, and that all times during the term
hereof it will have, at its sole expense, all licenses, certifications, approvals, insurance,
permits, and other authorizations required by law to perform the Services and/or deliver the
Goods specified herein. Additionally, all employees of Contractor performing services under
this Contract shall hold the required licenses or certification, if any, to perform their duties.
Contractor, if a foreign corporation or other entity transacting business in the State of
Colorado, further certifies that it currently has obtained and shall maintain any applicable
certificate of authority to do business in the State of Colorado and has designated a registered
agent in Colorado to accept service of process. Any revocation, withdrawal or non - renewal of
licenses, certifications, approvals, insurance, permits or any such similar requirements
necessary for Contractor to properly perform this Contract, shall be deemed to be a default by
Contractor and grounds for termination for cause of this Contract.
B. Legal Authority
Contractor warrants that it possesses the legal authority to enter into this Contract and that it
has taken all actions required by its procedures, by -laws, and/or applicable laws to exercise
that authority, and to lawfully authorize its undersigned signatory to execute this Contract and
to bind Contractor to its terms. The person signing and executing this Contract on behalf of
Contractor hereby represents, warrants, and, guarantees that they have full authorization to do
SO.
C. Tax Exempt Status
The Owner represents that it is not liable for any sales, use, excise, property or other taxes
imposed by any federal, state or local governmental authority, nor for any Contractor franchise
or income related tax. No taxes of any kind shall be charged to the State. The Owner's FEIN #
is 84- 6000728 and its tax exempt # is 98- 03476.
13. INSURANCE AND INDEMNITY
Contractor agrees that he has procured and will maintain during the term of this Agreement,
such insurance as will protect him from claims under workers' compensation acts, claims for
damages because of bodily injury including personal injury, sickness or disease or death of any
of his employees or of any person other than his employees, and from claims or damages
because of injury to or destruction of property including loss of use resulting therefrom; and
such insurance will provide for coverage in such amounts as set forth in subparagraph (A).
A. MINIMUM INSURANCE COVERAGE
The minimum insurance coverage which Contractor shall obtain and keep in force is as
follows:
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t :
(i) Workers' Compensation Insurance complying with statutory requirements in Colorado
and in any other state or states where the work is performed.
(ii) Comprehensive General and Automobile Liability Insurance with limits not less than Six
Hundred Thousand and No /100 Dollars ($600,000.00) per person and occurrence for
personal injury, including but not limited to death and bodily injury, Six Hundred
Thousand and No /100 Dollars ($600,000.00) per occurrence for property damage, and
One Million and No /100 Dollars ($1,000,000.00) for excess umbrella liability.
(iii)Professional Liability Insurance in amounts and form acceptable to Owner, and with a
deductible not exceeding $15,000.00.
B. INDEMNIFICATION
Contractor agrees to hold harmless, defend and indemnify Owner from and against any
liability to third parties, arising out of negligent acts, errors or omissions of Contractor, his
employees, subcontractors and consultants.
14. DEFAULT - BREACH
A. Defined
In addition to any breaches or defaults specified in other sections of this Contract, including,
but not limited to the Colorado Special Provisions, the failure of either Party to perform any of
its obligations hereunder entirely, partially, or in satisfactory manner, including, but not
limited to, performing them in a timely manner, constitutes a default or breach. The institution
of proceedings under any bankruptcy, insolvency, reorganization or similar legislation, by or
against the Contractor, or the appointment of a receiver or similar officer for the Contractor or
any of its property, and such proceedings or appointments are not vacated or fully stayed
within 20 days after the institution or occurrence thereof; shall also constitute a default.
B. Notice and Cure Period
In the event of a default or breach, notice of such shall be given in writing by the aggrieved
Party to the other Party in the manner provided in the Notice section of this Contract. If such
default or breach is not cured within 30 days of receipt of written notice or cure of the default
or breach has not begun within said period or has not been pursued with due diligence, the
aggrieved Party may terminate this Contract by providing written notice thereof, given in the
manner provided for in the Notice section of this Contract, effective 15 days from the date the
notice of termination was received.
I&MU B1131 D1 `l
If Contractor is in default under any provision of this Contract including, but not limited to the
Special Provisions, the Owner shall have all of the remedies listed in this section in addition to all
other remedies set forth in other sections of this Contract and as available at law or in equity. The
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Owner may exercise any or all of the remedies available to it, in its sole discretion, concurrently
or consecutively.
A. Early Termination in the Public Interest
The Owner is entering into this Contract for the purpose of carrying out the public policy of
the Owner, as determined by its elected and appointed officials. If this Contract ceases to
further the public policy of the Owner, the Owner, in its sole discretion, may terminate this
Contract in whole or in part. Exercise by the Owner of this right shall not be deemed a breach
of the Owner's obligations hereunder. This subsection shall not apply to a termination of this
Contract by the Owner for cause or default by Contractor, which shall be governed by the
Termination for Cause and/or Default subsection of this Remedies section.
i. Method and Content.
The Owner shall give written notice of termination to Contractor in accordance with the
notice provisions of §15, above, and §17, below, specifying the effective date of termination
and whether it affects all or a portion of this Contract.
ii. Obligations and Rights.
To the extent specified in the termination notice, Contractor shall not incur further
obligations or render further performance hereunder past the effective date of such notice,
and shall also terminate outstanding orders and subcontracts with third parties. However,
Contractor shall complete and deliver to the Owner all Services and Goods not terminated
by the termination notice and may incur obligations as are necessary to do so within the
Contract terms. In the sole discretion of the Owner, Contractor shall assign to the Owner all
of Contractor's right, title, and interest under such terminated orders or subcontracts. Upon
termination, Contractor shall take timely, reasonable and necessary action to protect and
preserve property in the possession of Contractor in which the Owner has an interest. All
finished or unfinished documents, data, studies, research, surveys, drawings, maps, models,
photographs, and reports or other materials prepared by Contractor under this Contract or
materials owned by the Owner in the possession of Contractor shall, at the option of the
Owner, be delivered by Contractor to the Owner and shall become the Owner's property.
Contractor shall complete and deliver to the Owner all Services and Goods not terminated
by the termination notice and may incur obligations as are necessary to do so within the
Contract terms.
iii. Payments.
If this Contract is terminated by the Owner for any reason other than for Cause as described
in sub - section B of this Section 16, Contractor shall be paid an amount which bears the same
ratio to the total compensation as the Services satisfactorily performed or the Goods
satisfactorily delivered or installed bear to the total Services and Goods covered by this
Contract, less payments previously made. Additionally, if the Contract is less than 60%
completed, the Owner may reimburse Contractor for a portion of actual out -of- pocket
expenses (not otherwise reimbursed under this Contract) it incurred that are directly
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i • '
attributable to the uncompleted portion of Contractor's obligations hereunder; provided that
reimbursement shall not exceed the maximum amount payable to Contractor.
B. Termination for Cause and /or Default
If Contractor fails to perform any of its obligations hereunder with such diligence as is
required to ensure their completion in a timely manner and such non - performance continues
following notice, the Owner may notify Contractor in writing of such non - performance which
specifies a cure period. If Contractor thereafter fails to promptly cure such non - performance
within such time, the Owner, may, at its option, terminate this entire Contract or such part of
this Contract as to which there has been delay or a failure to properly perform. Exercise by
the Owner of this right shall not be deemed a breach of its obligations hereunder.
i. Method and Content
The Owner shall give written notice of termination to Contractor in accordance with the
notice provisions hereof specifying the effective date of termination and whether it affects
all or a portion of this Contract.
ii. Obligations and Rights
To the extent specified in the termination notice, Contractor shall not incur further
obligations or render further performance hereunder past the effective date of such notice,
and shall also terminate outstanding orders and subcontracts with third parties. However,
Contractor shall complete and deliver to the Owner all Services and Goods not cancelled by
the termination notice and may incur obligations as are necessary to do so within the
Contract terms. In the sole discretion of the Owner, Contractor shall assign to the Owner all
of Contractor's right, title, and interest under such terminated orders or subcontracts. Upon
termination, Contractor shall take timely, reasonable and necessary action to protect and
preserve property in the possession of Contractor in which the Owner has an interest. In the
sole discretion of the Owner, Contractor shall assign to the Owner all of Contractor's right,
title, and interest under such terminated orders or subcontracts. All finished or unfinished
documents, data, studies, research, surveys, drawings, maps, models, photographs, and
reports or other materials prepared by Contractor under this Contract shall, at the option of
the Owner, be delivered by Contractor to the Owner and shall become the Owner's property.
iii. Payments
The Owner shall only reimburse Contractor for accepted Services and Goods received up to
the date of termination and, if after termination, it is determined that Contractor was not in
default or that Contractor's action/inaction was excusable, such termination shall be treated
as a termination for other than Cause and the rights and obligations of the Parties shall be the
same as if this Contract had not been terminated for cause, as described above herein.
iv. Damages and Withholding
Notwithstanding any other remedial action by the Owner, Contractor also shall remain liable
to the Owner for any damages sustained by the Owner by virtue of any default under this
Page 13 of 23
section by Contractor and the Owner may withhold any payment to Contractor for the
purpose of mitigating the Owner's damages, until such time as the exact amount of damages
due to the Owner from Contractor is determined. Further, the Owner may withhold amounts
due to Contractor as the Owner deems necessary to protect the Owner against loss because
of outstanding liens or claims of former lien holders and to reimburse the Owner for the
excess costs incurred in procuring similar goods or services. Contractor shall be liable for
excess costs incurred by the Owner in procuring from third parties replacement Services or
substitute Goods as cover.
C. Remedies Not Involving Termination
The Owner, its sole discretion may exercise the following remedies in addition to its other
remedies, to -wit:
i. Suspend Performance
Suspend Contractor's performance pending necessary corrective action as specified by the
Owner without entitling Contractor to adjustment in price /cost or schedule; and/or
ii. Withhold Payment
Withhold payment to the Contractor until corrections in services are satisfactorily completed
and /or acceptable goods are provided; and /or
iii. Deny Payment
Deny payment for those services not performed and /or not provided and which due to
circumstances caused by the Contractor cannot be performed, or if performed, would be of
no value to the Owner; provided that any denial of payment must be reasonably related to
the value of work or performance lost to the Owner; and/or
iv. Removal
Demand removal of Contractor's employees, agents, or subcontractors whom the Owner
deems incompetent, careless, insubordinate, unsuitable, or otherwise unacceptable, or whose
continued relation to this Contract is deemed to be contrary to the public interest or not in
the Owner's best interest, all such cases being within the sole discretion of Owner.
16. NOTICE and REPRESENTATIVES
A. Notice
All notices required to be given hereunder shall be hand delivered with receipt required or sent by
certified or registered mail to such Party's principal representative at the address set forth below.
In addition to hard -copy notice, notice also may be sent by e -mail to the e-mail addresses, if any,
set forth below. Either Party may from time to time designate by written notice substitute
addresses or persons to whom such notices shall be sent. Unless otherwise provided herein, all
notices shall be effective upon receipt.
Page 14 of 23
t:
B. Representatives
The individuals listed below are the principal representatives of the respective Parties. With
respect to the Owner's representative(s), they have authority to inspect and reject goods and
services, approve invoices for payment, and act otherwise for the Owner, except with respect to
the execution of modifications to or termination of this Contract. For the purposes of this
Contract, the official representative(s) and addresses of the Parties are:
i. Owner:
Name: Jerry Pacheco —or Deemed Signee
Title /Position: City Manager
Local government: City of Pueblo
Address: I City Hall Place, Pueblo, CO 81003
Tel : (719) 553 -2610
Fax: (719) 553 -2697
E -Mail : jpacheco @pueblo.us
ii. Contractor:
Contractor Name: Johnson Controls, Inc.
Contractor Rep. Name: Bethany Utke
Title /Position: Account Executive
Address: 10289 W. Centennial Rd.
Tel 303 - 932 -3793
Fax 303 -979 -6847
Mobile 303 -319 -1946
E -Mail bethanyj.utke@jci.com
17. GOVERNMENTAL IMMUNITY
Notwithstanding any other provision to the contrary, nothing herein constitutes a waiver, express
or implied, of any of the immunities, rights, benefits, protection, or other provisions of the
Colorado Governmental Immunity Act, §CRS 24 -10 -101, et seq., as amended. Liability for
claims for injuries to persons or property arising from the negligence of the Owner, its
departments, institutions, agencies, boards, officials, and employees is controlled and limited by
the provisions of the Act and the risk management statutes, CRS §24 -30 -1501, et seq., as
amended.
18. MISCELLANEOUS
A. Binding Effect
Unless otherwise provided herein, all provisions herein contained, including the benefits and
burdens, shall extend to and be binding upon the Parties' respective heirs, legal
representatives, successors, and assigns.
Page 15 of 23
B. Modification
This Contract is subject to such modifications as may be required by changes in Federal or
Colorado State law, or their implementing regulations. Any such required modification
automatically shall be incorporated into and be part of this Contract on the effective date of
such change, as if fully set forth herein. Except as specifically provided herein, no
modification of this Contract shall be effective unless agreed to in writing by both Parties in an
amendment to this Contract, properly executed and approved in accordance with Owner home
rule statutes and fiscal rules.
C. Entire Understanding
This Contract represents the complete integration of all understandings between the Parties and
all prior representations and understandings, oral or written, are merged herein. No prior or
contemporaneous addition, deletion, or other amendment hereto shall have any force or affect
whatsoever, unless embodied herein.
D. Severability
Provided this Contract can be executed and performance of the obligations of the Parties
accomplished within its intent, the provisions hereof are severable and any provision that is
declared invalid or becomes inoperable for any reason shall not affect the validity of any other
provision hereof.
E. Counterparts
This Contract may be executed in multiple identical original counterparts, all of which shall
constitute one agreement.
F. Waiver
Waiver of any breach of a term, provision, or requirement of this Contract any right or remedy
hereunder, whether explicitly or by lack of enforcement, shall not be construed or deemed as a
waiver of any subsequent breach of such term, provision or requirement, or of any other term,
provision, or requirement.
G. Assignment - Novation
Except as otherwise specifically provided in Exhibit A, Contractor's rights and obligations
hereunder are personal and may not be transferred, assigned or subcontracted, and novations
shall not occur, without the prior, written consent of the Owner. Any attempt at assignment,
transfer, subcontracting, or novations without such consent shall be void. All
subcontracts /subcontractors approved by Contractor or the Owner shall be subject to the
provisions hereof. Contractor shall be solely responsible for all aspects of subcontracting
arrangements and performance. Contractor shall be solely responsible for all subcontracting
arrangements, directions, and performance, including, but not limited to, delivery of Goods
and performance of Services. Contractor shall require and ensure that each subcontractor
Page 16 of 23
I,
assents in writing to all of the provisions hereof, including indemnifying the Owner as required
under the Colorado Special Provisions, below herein.
H. Third Party Beneficiaries
Enforcement of this Contract and all rights and obligations hereunder are reserved solely to the
Parties, and not to any third party. Any services or benefits which third parties receive as a
result of this Contract are incidental to the Contract, and do not create any rights for such third
parties.
I. Survival of Certain Contract Terms
Notwithstanding anything herein to the contrary, provisions of this Contract requiring
continued performance, compliance, or effect after termination hereof, shall survive such
termination and shall be enforceable by the Owner if Contractor fails to perform or comply as
required.
J. Jurisdiction and Venue
All suits, actions, or proceedings related to this Contract shall be held in the State of Colorado
and the Parties herby agree that venue shall be proper in the County of
K. Captions
The captions and headings in this Contract are for convenience of reference only, and shall not
be used to interpret, define, or limit its provisions.
L. Rule of Contraction
While the Owner drafted this Contract, the Parties agree that this Contract shall not be strictly
construed against the drafter.
M. Order of Precedence
The provisions of this Contract shall govern the relationship of the Owner and Contractor. In
the event of conflicts or inconsistencies between this Contract and its exhibits and attachments,
such conflicts or inconsistencies shall be resolved by reference to the documents in the
following order of priority:
v. Colorado Special Provisions
vi. Exhibit A, then
vii. Exhibit B, then
viii. Exhibit C, then
Page 17 of 23
19. COLORADO SPECIAL PROVISIONS
The Special Provisions apply to all Contracts except where noted in italics.
20.1. OWNER'S APPROVAL. This contract shall not be deemed valid until it has been approved
by the Owner or designee.
20.2. FUND AVAILABILITY. Financial obligations of the Owner payable after the current
fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise
made available.
20.3. INDEMNIFICATION. Contractor shall indemnify, save, and hold harmless the Owner, its
employees and agents, against any and all claims, damages, liability and court awards including
costs, expenses, and attorney fees and related costs, incurred as a result of any act or omission by
Contractor, or its employees, agents, subcontractors, or assignees pursuant to the terms of this
contract.
20.4. INDEPENDENT CONTRACTOR. Contractor shall perform its duties hereunder as an
independent contractor and not as an employee. Neither contractor nor any agent or employee of
contractor shall be or shall be deemed to be an agent or employee of the Owner. Contractor shall
pay when due all required employment taxes and income taxes and local head taxes on any monies
paid by the Owner pursuant to this contract. Contractor acknowledges that contractor and its
employees are not entitled to unemployment insurance benefits unless contractor or a third party
provides such coverage and that the Owner does not pay for or otherwise provide such coverage.
Contractor shall have no authorization, express or implied, to bind the Owner to any agreement,
liability or understanding, except as expressly set forth herein. Contractor shall provide and keep in
force workers' compensation (and provide proof of such insurance when requested by the Owner)
and unemployment compensation insurance in the amounts required by law and shall be solely
responsible for its acts and those of its employees and agents.
20.5. NON - DISCRIMINATION. Contractor agrees to comply with the letter and the spirit of all
applicable Owner, State and federal laws respecting discrimination and unfair employment
practices.
20.6. CHOICE OF LAW. The laws of the State of Colorado, and rules and regulations issued
pursuant thereto, shall be applied in the interpretation, execution, and enforcement of this contract.
Any provision of this contract, whether or not incorporated herein by reference, which provides for
arbitration by any extra judicial body or person or which is otherwise in conflict with said laws,
rules, and regulations shall be considered null and void. Nothing contained in any provision
incorporated herein by reference which purports to negate this or any other special provision in
whole or in part shall be valid or enforceable or available in any action at law, whether by way of
complaint, defense, or otherwise. Any provision rendered null and void by the operation of this
provision will not invalidate the remainder of this contract, to the extent that this contract is capable
of execution. At all times during the performance of this contract, Contractor shall strictly adhere
to all applicable federal and State laws, rules, and regulations that have been or may hereafter be
established.
Page 18 of 23
20.7. SOFTWARE PIRACY PROHIBITION. Governor's Executive Order D 002 00. No
Owner or other public funds payable under this contract shall be used for the acquisition, operation,
or maintenance of computer software in violation of federal copyright laws or applicable licensing
restrictions. Contractor hereby certifies that, for the term of this contract and any extensions,
Contractor has in place appropriate systems and controls to prevent such improper use of public
funds. If the Owner determines that Contractor is in violation of this paragraph, the Owner may
exercise any remedy available at law or equity or under this contract, including, without limitation,
immediate termination of this contract and any remedy consistent with federal copyright laws or
applicable licensing restrictions.
20.8. EMPLOYEE FINANCIAL INTEREST. CRS §24 -18 -201 and §24 -50 -507. The
signatories aver that to their knowledge, no employee of the Owner has any personal or beneficial
interest whatsoever in the service or property described in this contract.
20.9 STATE - MANDATED OR RELATED CONTRACT CLAUSES
As used in this section, "Contractor" shall mean the firm or entity ( whether referred to as
Consultant, Company, Contractor, Architect, Accountant or by other term) entering into this
Agreement with Pueblo, a Municipal Corporation ( which may be referred to in this Agreement as
City, Client, Customer or by other term).
PERA LIABILITY Contractor shall reimburse the City for the full amount of any employer
contribution required to be paid by City to the Public Employees' Retirement Association
( "PERA ") for salary or other compensation paid to a PERA retiree performing contracted services
for the City under this Agreement. Contractor shall fill out the questionnaire attached as Exhibit
"A" and submit the completed form to City as part of the signed Agreement.
SOLE SOURCE CONTRACTS - Article XXVIII of the Colorado Constitution was amended by vote
of the people on November 4, 2008 ( "Amendment 54) to provide certain limitations on holders of "sole
source' government contracts entered into by government entitles. On August 12, 2009, Denver
District Court Judge Catherine Lemon issued an order granting a preliminary injunction against
enforcement of Amendment 54, holding that it violated rights of free speech and association
guaranteed by the First Amendment. The parties agree that if, at any time during the term of this
Agreement, a court of appropriate jurisdiction determines that (1) Amendment 54 is constitutional or
otherwise lawful under applicable law; or (2) Amendment 54, if lawful, applies to agreements such as
this Agreement and must be included in such agreements, then City and Contractor agree to negotiate
the inclusion of complying Amendment 54 language in this Agreement.
STATE - IMPOSED MANDATES PROHIBITING ILLEGAL ALIENS FROM PERFORMING
WORK UNDER THIS CONTRACT
(a) At or prior to the time for execution of this Contract, Contractor shall submit to the
Purchasing Agent of the City its certification that it does not knowingly employ or contract with an
illegal alien who will perform work under this Contract and that the Contractor will participate in
either the AE -Verify Program" created in Public Law 208, 104`" Congress, as amended and
expanded in Public law 156, 108`" Congress, as amended, that is administered by the United States
Department of Homeland Security or the "Department Program" established pursuant to section 8-
17.5-102(5)(c), C.R.S. that is administered by the Colorado Department of Labor and Employment
Page 19 of 23
in order to confirm the employment eligibility of all employees who are newly hired for
employment to perform work under this Contract.
(b) Contractor shall not:
(I) Knowingly employ or contract with an illegal alien to perform work under this
Contract;
(II) Enter into a contract with a subcontractor that fails to certify to Contractor that
the subcontractor shall not knowingly employ or contract with an illegal alien to perform
work under this Contract.
(c) The following state - imposed requirements apply to this Contract:
(I) The Contractor shall have confirmed the employment eligibility of all employees
who are newly hired for employment to perform work under this Contract through
participation in either the E -Verify Program or Department Program.
(II) The Contractor is prohibited from using either the E- Verify Program or
Department Program procedures to undertake pre - employment screening of job applicants
while this Contract is being performed.
(III) If the Contractor obtains actual knowledge that a subcontractor performing
work under this Contract knowingly employs or contracts with an illegal alien to perform
work under this Contract, the Contractor shall be required to:
A. Notify the subcontractor and the Purchasing Agent of the City within
three (3) days that the Contractor has actual knowledge that the subcontractor is
employing or contracting with an illegal alien; and
B. Terminate the subcontract with the subcontractor if within three (3) days
of receiving the notice required pursuant to subparagraph (c)(III)A. above the
subcontractor does not stop employing or contracting with the illegal alien; except
that the Contractor shall not terminate the contract with the subcontractor if, during
such three (3) days, the subcontractor provides information to establish that the
subcontractor has not knowingly employed or contracted with an illegal alien.
(IV) The Contractor is required to comply with any reasonable request by the
Colorado Department of Labor and Employment (hereinafter referred to as ACDLE @) made
in the course of an investigation that CDLE is undertaking pursuant to its authority under
'8-17.5-102(5), C.R.S.
(d) Violation of this Section by the Contractor shall constitute a breach of contract and
grounds for termination. In the event of such termination, the Contractor shall be liable for City =s
actual and consequential damages.
(e) Nothing in this Section shall be construed as requiring the Contractor to violate any
terms of participation in the E- Verify Program.
IN WITNESS WHEREOF the parties hereto have made and executed this Agreement as of the day
and year first above written.
(Signature Page to Follow)
Page 20 of 23
CITY OF PUEBLO
By-
President of the City Ckincil
Attest:
City Clerk
BALANCE ,�OF APPROPRIATION EXISTS FOR THIS CONTRACT
AVAiLABLE.
EviffeI ly'RayE
�6
AND FUNDS ARE
Page 21 of 23
0--t- -+-
EXHIBIT "A"
COLORADO PUBLIC EMPLOYEES RETIREMENT ASSOCIATION
SUPPLEMENTAL QUESTIONNAIRE TO BE ANSWERED BY
ANY BUSINESS PERFORMING SERVICES FOR THE CITY OF PUEBLO
Pursuant to section 24 -51- 1101(2), C.R.S., salary or other compensation from the
employment, engagement, retention or other use of a person receiving retirement benefits (Retiree)
through the Colorado Public Employees Retirement Association (PERA) in an individual capacity
or of any entity owned or operated by a PERA Retiree or an affiliated party by the City of Pueblo to
perform any service as an employee, contract employee, consultant, independent contractor, or
through other arrangements, is subject to employer contributions to PERA by the City of Pueblo.
Therefore, as a condition of contracting for services with the City of Pueblo, this document must be
completed, signed and returned to the City of Pueblo:
(a) Are you, or do you employ or engage in any capacity, including an independent
contractor, a PERA Retiree who will perform any services for the City of Pueblo? Yes _ , No
(b) If you answered "yes" to (a) above, please answer the following question: Are you an
individual, sole proprietor or partnership, or a business or company owned or operated by a PERA
Retiree or an affiliated party? Yes _, No _. If you answered "yes" please state which of the
above entities best describes your business:
(c) If you answered "yes" to both (a) and (b), please provide the name, address and social
security number of each such PERA Retiree.
Name
Address
Name
Address
Social Security Number Social Security Number
(If more than two, please attach a supplemental list)
Failure to accurately complete, sign and return this document to the City of Pueblo may result
in your being denied the privilege or doing business with the City of Pueblo.
If you answered "yes" to both (a) and (b), you agree to reimburse the City of Pueblo for any
employer contribution required to be paid by the City of Pueblo to PERA for salary or other
compensation paid to you as a PERA Retiree or paid to any employee or independent contractor of
yours who is a PERA Retiree performing services for the City of Pueblo. You further authorize the
City of Pueblo to deduct and withhold all such contributions from any moneys due or payable to
you by the City of Pueblo under any current or future contract or other arrangement for services
between you and the City of Pueblo.
Page 22 of 23
Y
Signed
20
Name:
For purposes of responding to question (b) above, an Aaffiliated parry@ includes (I) any person who is the named
beneficiary or cobeneficiary on the PERA account of the PERA Retiree; (2) any person who is a relative of the PERA
Retiree by blood or adoption to and including parents, siblings, half - siblings, children, and grandchildren; (3) any
person who is a relative of the PERA Retiree by marriage to and including spouse, spouse =s parents, stepparents,
stepchildren, stepsiblings, and spouse =s siblings; and (4) any person or entity with whom the PERA Retiree has an
agreement to share or otherwise profit from the performance of services for the City of Pueblo by the PERA Retiree
other than the PERA Retiree =s regular salary or compensation.
Page 23 of 23
Exhibit A to Technical Energy Audit & Project Proposal Contract
Scope of Work
City of Pueblo
1) Data and Information. Collect data and background information from Owner concerning facility
operation and energy use for the most recent three years from the effective date of this Contract as
follows:
a. Building square footage.
b. Construction data of buildings and major additions including building envelope.
c. Utility company invoices.
d. Occupancy and usage information.
e. Description of all energy - consuming or energy- saving equipment used on the premises.
f. Description of energy management procedures utilized on the premises.
g. Description of any energy - related improvements made or currently being implemented.
h. Description of any changes in the structure of the facility or energy -using or water -using
equipment.
i.Description of future plans regarding building modifications or equipment modifications and
replacements.
j.Drawings, as available (may include mechanical, plumbing, electrical, building automation and
temperature controls, structural, architectural, modifications and remodels).
k. Original construction submittals and factory data (specifications, pump curves, etc.), as
available.
I. Operating engineer logs, maintenance work orders, etc., as available.
m. Records of maintenance expenditures on energy -using equipment, including service contracts.
n. Prior energy audits or studies, if any.
2) Identify Potential Measures
a. Interview individuals with knowledge of the facility such as the facility manager, maintenance
staff, subcontractors and occupants of each building regarding:
i. Facility operation, including energy management procedures.
ii. Equipment maintenance problems.
iii. Comfort problems and requirements.
iv. Equipment reliability.
v. Projected equipment needs.
vi. Occupancy and use schedules for the facility and specific equipment.
vii. Facility improvements — past, planned and desired.
b. Survey major energy -using equipment, including, but not limited to, lighting (indoor and
outdoor), heating and heat distribution systems, cooling systems and related equipment,
automatic temperature control systems and equipment, air distribution systems and equipment,
outdoor ventilation systems and equipment; exhaust systems and equipment; hot water systems,
electric motors, transmission and drive systems, special systems such as kitchen/dining
equipment and swimming pools, renewable energy systems, other energy using systems, water
consuming systems, such as restroom fixtures, water fountains, and irrigation systems.
c. Perform "late- night" surveys outside of normal business hours or on weekends to confirm
building system and occupancy schedules, if deemed necessary.
d. Develop a preliminary list of potential energy and water saving measures. Consider the
following for each system:
i. Comfort and maintenance problems.
ii. Energy use, loads, proper sizing, efficiencies and hours of operation.
Page ( of 5
iii. Current operating condition.
iv. Remaining useful life.
v. Feasibility of system replacement.
vi. Hazardous materials and other environmental concerns.
vii. Owner's future plans for equipment replacement or building renovations.
viii. Facility operation and maintenance procedures that could be affected.
ix. Capability to monitor energy performance and verify savings.
3) Base -Year Consumption. Establish base -year consumption and reconcile with end -use
consumption estimates.
a. Establish appropriate base year consumption by examining utility bills for the past three years
for electricity, gas, propane, steam, water, and any other applicable utilities. Present base year
consumption in terms of energy units (kWh, kW, ccf, Therms, gallons, or other units used in
bills), in terms of energy units per square foot, in terms of dollars, and in terms of dollars per
square foot. Describe the process used to determine the base year (averaging, selecting most
representative contiguous 12 months, removal of anomalies, or other statistical or weather -
normalized method). Consult with facility personnel to account for any anomalous schedule or
operating conditions on billings that could skew the base year representation. Contractor shall
account for periods of time when equipment was broken or malfunctioning in calculating the
base year.
b. Estimate loading, usage and /or hours of operation for all major end uses of total facility
consumption including, but not limited to: lighting, heating, cooling, motors (fans, pumps, and
other pertinent), plug loads, and other major energy and water using equipment. Where loading
or usage are highly uncertain (including variable loads such as cooling), Contractor shall use its
best judgment, spot measurements or short-term monitoring. Contractor should not assume that
equipment run hours equal the operating hours of the building(s) or facility staff estimates.
c. Reconcile annual end -use estimated consumption with the annual base year consumption. This
reconciliation shall place reasonable "real- world" limits on potential savings. Propose
adjustments to the baseline for energy and water saving measures that shall be implemented in
the future.
d. For facilities constructed and occupied prior to October 1, 2009, establish the actual FY
2008/2009 baseline utility consumption and compare to the EPC base year consumption.
Document, analyze, and defend all variances between the EPC base year consumption values and
the actual FY 2008/2009 facility baseline utility consumption.
4) Preliminary Analysis. Develop a preliminary analysis of potential energy and water saving
measures.
a. List all potential opportunities, whether cost- effective or not. Consider technologies in a
comprehensive approach including, but not limited to: lighting and daylighting systems,
heating/ventilating /air conditioning equipment and distribution systems, controls systems,
building envelope, motors, kitchen equipment, pools, renewable energy systems, other special
equipment, irrigation systems, and water saving devices.
b. Identify measures which appear likely to be cost effective and therefore Warr ant detailed
analysis.
c. For each measure, prepare a preliminary estimate of energy or water cost savings including
description of analysis methodology, supporting calculations and assumptions used to estimate
savings.
5) Preliminary Meeting. Meet with Owner to present preliminary analysis prior to complete analysis.
Describe how the projected project economics meet the Owner's terms for completing the
Technical Energy Audit and Proposal Contract. Discuss assessment of energy use, savings
Page 2 of 5
potential, project opportunities, and potential for developing an energy performance contract.
Develop a list of recommended measures for further analysis. The Owner shall at its discretion,
have the option to reject any presented calculations of savings, potential savings allowed, or project
recommendations.
6) Savings and Cost Analysis. Analyze savings and costs for each mutually agreed to energy and
water saving measure and any mutually agreed to capital improvement measures.
a. Follow the methodology of the American Society of Heating, Refrigeration, and Air
Conditioning Engineers (ASHRAE) or other nationally- recognized authorities following the
engineering principle(s) identified for each retrofit option.
b. Utilize assumptions, projections and baselines which best represent the true value of future
energy or operational savings. Include accurate marginal costs for each unit of savings at the
time the audit is performed, documentation of material and labor cost savings, adjustments to the
baseline to reflect current conditions at the facility, calculations which account for the interactive
effects of the recommended measures.
c. Use best judgment regarding the employment of instrumentation and recording durations so as
to achieve an accurate and faithful characterization of energy use.
d. Use markups and fees stated in contract in all cost estimates.
e. Develop a preliminary measurement and verification plan for each measure.
L Follow additional guidelines for analysis and report preparation given below.
g. Include cost to provide services and complete application for ENERGY STAR Label, LEED-
EB certification for Existing Buildings, or other certification.
7) Draft Audit Report. Prepare a draft Technical Energy Audit Report. The report provides an
engineering and economic basis for negotiating a potential Energy Performance Contract between
the Owner and the Contractor. The report shall include:
a. Overview.
I. Contact information.
ii. Summary table of recommended energy and water saving measures, with itemization
for each measure of total design and construction cost, annual maintenance costs, the
first year cost avoidance (in dollars and energy /water units), simple payback and
equipment service life.
iii. Summary of annual energy and water use by fuel type and costs of existing or base year
condition.
iv. Calculation of cost savings expected if all recommended measures are implemented and
total percentage savings of total facility energy cost.
v. Description of the existing facility, mechanical and electrical systems.
vi. Summary description of measures, including estimated costs and savings for each as
detailed above.
vii. Discussion of measures considered but not investigated in detail.
viii. Conclusions and recommendations.
b. Base year energy use.
i. Description and itemization of current billing rates, including schedules and riders.
ii. Summary of all utility bills for all fuel types and water.
iii. Identification and definition of base year consumption and description of how
established.
iv. Reconciliation of estimated end use consumption (i.e. lighting, cooling, heating, fans,
plug loads, etc) with base year (include discussion of any unusual findings)
c. Full description of each energy and water saving measure including:
i. Written description of:
Page 3 of 5
A. Existing conditions.
B. Description of equipment to be installed and how it shall function.
C. Include discussion of facility operations and maintenance procedures that shall be
affected by instal lation/implementation.
D. Present the plan for installing or implementing the recommendation.
ii. Savings calculations:
A. Base year energy use and cost.
B. Post - retrofit energy use and cost.
C. Savings estimates including analysis methodology, supporting calculations and
assumptions used.
D. Annual savings estimates. The cost savings for all energy saving measures must be
determined for each year during the contract period. Savings must be able to be
achieved each year (cannot report average annual savings over the term of the
contract).
E. Savings must be limited to savings allowed by the Owner as described above.
F. Percent cost - avoidance projected.
G. Description and calculations for any proposed rate changes.
H. Explanation of how savings interactions between retrofit options are accounted for
in calculations.
I. Operation and maintenance savings, including detailed calculations and
description. Ensure that maintenance savings are only applied in the applicable
years and only during the lifetime of the particular equipment.
J. If computer simulation is used, include a short description and state key input data.
If requested by Owner, access shall be provided to the program and all assumptions
and inputs used, and/or printouts shall be provided of all input files and important
output files and included in the Technical Energy Audit with documentation that
explains how the final savings figures are derived from the simulation program
output printouts.
K. If manual calculations are employed, formulas, assumptions and key data shall be
stated.
L. Conclusions, observations, caveats.
iii. Cost estimate — Include all information required under CRS §24 -30 -2002 as well as a
detailed scope of the construction work suitable for cost estimating. Include all
anticipated costs associated with installation and implementation. Provide preliminary
specifications for major mechanical components as well as detailed lighting and water
fixture counts. The following shall also be included:
A. Engineering/design costs.
B. Contractor /vendor estimates for labor, materials, and equipment; include special
provisions, overtime, and all other appropriate items, as needed to accomplish the
work with minimum disruption to the operations of the facilities.
C. Permit costs.
D. Construction management fees.
E. Environmental costs or benefits (disposal, avoided emissions, handling of
hazardous materials, and any other related costs).
F. Note that all markups and fees stated in Exhibit D to the Technical Energy Audit
and Project Proposal Contract (TEAPP), to which this Exhibit A is attached, shall
be used in the cost estimates, unless otherwise documented and justified due to
change in scope or size of project or other unforeseen circumstances.
Page 4 of 5
G. Conclusions, observations, caveats.
H. Other cost categories as defined above under "markups" in Contract.
d. Miscellaneous:
i. Estimate of average useful service life of equipment.
ii. Preliminary commissioning plan.
iii. Preliminary measurement and verification plan, following the International
Performance Measurement and Verification Protocol most current International
Performance Monitoring and Verification Protocol (IPMVP), explaining how savings
from each measure is to be measured and verified.
iv. Discussion of impacts that facility would incur after contract ends. Consider operation
and maintenance impacts, staffing impacts, budget impacts, etc., and identify who is
responsible for maintenance.
v. Compatibility with existing systems.
8) Post -Audit Meeting. Meet with Owner to review the recommendations, savings calculations and
impact of the measures on the operations of the facility. Describe how the projected project
economics meet the Owner's terms for completing the Technical Energy Audit and Performance
Contract Proposal. Discuss the willingness and capability of Owner to make capital contributions
to the project to improve the economics of the overall project. Revise Audit as directed by Owner.
9) Complete and Present Final Technical Energy Audit Report. Deliver final audit report to
Owner for approval. Execute Exhibit B to the TEAPP.
10) Proposal. Prepare an Energy Performance Contract Proposal using the State of Colorado's Energy
Performance Contract documents. In anticipation of Contractor and Owner entering into an Energy
Performance Contract to design, install, and monitor the energy and water saving measures
proposed in the Technical Energy Audit Report, Contractor shall prepare a proposal to be
incorporated in an Energy Performance contract that includes the following:
a. Project Cost is the maximum not to exceed amount Owner shall pay for the project and
Contractor's services. Costs must be consistent with mutually agreed to markups and fees
established in Exhibit D to the TEAPP. Costs may include but are not limited to: engineering,
designing, packaging, procuring, installing (from Technical Energy Audit Report results);
performance /payment bond costs; construction management fees; commissioning costs;
maintenance fees; monitoring fees; training fees; and overhead and profit.
b. Include a List of Services that shall be provided as related to each cost.
c. Expected term of the Energy Performance Contract.
d. Expected utility rate forecast (escalation or decline) based on historical trends, utility provider
rate forecasts, economic forces of supply and demand (global, national, local or regional), natural
resource availability, technology, utility capital investment, and environmental requirements.
(GEO and/or the Owner shall be consulted on the appropriate fuel price escalation factors for all
projects.)
e. Description of how the project shall be financed including available interest rates and financing
terms, based on interest rates likely available to Owner at this time, and based on a 60 -day and
90 -day lock option.
f. Explanation of how the savings shall be calculated and adjusted due to weather (such as heating
and cooling degree days), occupancy or other factors. Monitoring and verification methods must
be consistent with the most current IPMVP.
g. Analysis of annual cash flow for Owner during the contract term.
Page 5 of 5
Exhibit B to Technical Energy Audit & Project Proposal Contract
Notice of Acceptance of Technical Energy Audit Report
City of Pueblo
Notice of Acceptance
Date of Notice
Subject to the Parties entering into a new contract under §6(A) of the Contract for
Technical Energy Audit and Project Proposal, which was signed by the Owner on
, notice is hereby given that the Owner
accepts the Contractor's Technical Energy Audit and Project Proposal.
Accepted by
Name:
Title:
Signature:
Date:
Exhibit C — Technical Energy Audit & Project Proposal Contract -
Buildings Included in Scope of Work
Customer Name: City of Pueblo
The following tables lists the buildings included in the Technical Energy Audit (TEA) Scope of
Work.
Bldg.
CIRSA Bldg
Building Address Age. Building Type Audit
A
ode GSF Audit
$ /SF
$
Ice Arena
100 N GRAND AVE
1975
ICE SKATING RING
25500068
33,485
$0.12
$4,018
Fire Museum
116 BROADWAY
1900
MUSEUM
25500065
2,978
$0.12
$357
Firestation #4
1201 E EVANS
1939
FIRE STATION
25500059
6,267
$0.12
$752
Transit Center
123 COURT ST
1997
Transit Passenger Station
25500189
4,600
$0.12
$552
Oro /Pick
Firestation #3
123 W EVANS
1961
FIRE STATION
25500058
3,821
$0.12
$459
Parking Garage
110 S Main
2008
Parking Garage
25500288
936,000
NIA
$4,200
Mitchell Pool
1300 E 12TH ST
1943
BATHHOUSE
25500076
1,621
$0.12
$195
Waste Water
NIA
$7,400
Treatment Plant
1300 S QUEENS
1989
CHL & SULFUR IN
25500125
NIA
NIA
N/A
1300 S QUEENS
1971
DISINFECTANT
25500124
NIA
N!A
N/A
1300 S QUEENS
1989
PUMP STATION
25500027
N/A
NIA
NIA
1300 S QUEENS
1989
BLOWER BUILDING
25500114
N/A
NIA
NIA
AVE
1300 S QUEENS
1989
DIGESTER CONTRO
25500115
N/A
NIA
N/A
AVE
1300 S QUEENS
1989
GRIT REMOVAL
25500113
N/A
NIA
NIA
AVE
1300 S QUEENS
1989
HEADWORKS
25500112
N/A
NIA
NIA
AVE
1300 S QUEENS
1989
OFFICES
25500117
NIA
NIA
NIA
AVE
1300 S QUEENS
1989
SERVICE GARAGE-
25500118
NIA
NIA
NIA
AVE
1300 S QUEENS
1989
SLUDGE PROCESSI
25500116
NIA
NIA
NIA
AVE
1300 S. QUEENS
1989
PUMP STATION
25500171
N/A
N/A
N/A
1300 S. QUEENS
1938
STORAGE
25500147
N/A
NIA
NIA
1300 S. QUEENS
1938
STORAGE
25500148
N/A
NIA
NIA
1300 S. QUEENS
1938
STORAGE
26500149
N/A
NIA
NIA
1300 S. Queens
2004
Wastewater /Stormwater
25500266
NIA
NIA
N/A
Treatment Plant
1300 S. Queens
1989
Gravity Thickner
25500277
N/A
NIA
N/A
Ave
1300 S. Queens
1989
High Rate Trickling Filter
25500275
N/A
NIA
NIA
Ave
1300 S. Queens
1989
Primary Clarifiers (2)
25500274
N/A
NIA
NIA
Ave
1300 S. Queens
1989
Secondary Clarifiers (3)
25500276
N/A
NIA
NIA
Ave
1300 S. QUEENS
1989
4- AERATION BASIN &
25500091
N/A
N/A
NIA
AVE.
EQUIPMENT /DIFFUSER SY
Firestation #6
1325 E 4TH ST
1975
FIRESTATION
25500173
3,194
$0.12
$383
Fire Offices 1551 BONFORTE 1963 OFFICE 25500168 3,166 $0.12 $380
Page I of 3
Firestation #8 1551 BONFORTE 1859 FIRE STATION 25500175 3,349 $0.12 $402
BLVD
Mineral Palace
1600 N SANTA FE
1984
MAINTENANCE
25500097
3,200
$0.12
$384
Pool
AVE
Mineral Palace
1600 N SANTA FE
1962
BATHHOUSE
25500096
2,646
$0.12
$318
Pool
AVE
Minnequa Pool
1708 MAN
1996
BATHHOUSE
25500075
2,170
$0.12
$260
AVE
Firestation #2
1800 EAGLE
1998
FIRE STATION
25500197
4,503
$0.12
$540
RIDGE BLV
Parking Garage
210 N GRAND
1996
PARKING GARAGE
25500188
148,190
NIA
$2,400
AVENUE
Engineering
211 ED ST
1974
OFFICE
25500047
7,488
$0.12
$899
Firestation #5
2401 6TH AVE
1959
FIRE STATION
25500060
2,972
$0.12
$357
Firestation #9
2600 ASTER
1983
FIRE STATION
25500064
2,573
$0.12
$309
Weisbrod Aircraft
30900 AMER AVE
1978
MAINT.1 MUSEUM
25500107
15,743
$0.12
$1,889
Museum
Fleet
MaintenancelWast
310 East D Street
1995
MAINTENANCE
25500037
18,442
$0.12
$2,213
ewater /Streets
complex
Fleet
MaintenancefWast
310 East D Street
1950
GARAGE
25500040
8,370
$0.12
$1,004
ewaterlStreets
complex
Fleet
MaintenancelWast
310 East D Street
1995
OFFICES, LUNCH
25500039
7,110
$0.12
$853
ewaterlStreets
complex
Fleet
Maintenance/Wast
310 East D Street
1995
UTILITY STORAGE
25500038
12,542
$0.12
$1,505
ewater /Streets
complex
Museum Hangar
31001 M gnuson
2001
Museum Hangar
25500235
30,000
$0.12
$3,600
Traffic Shops
311 E D STREET
1952
LABIOFFICE/ WHS
25500048
14,227
$0.12
$1,707
Airport Terminal
31201 BRYAN
1958
AIRPORT TERMINAL
25500158
24,120
$0.12
$2,894
CIRCLE
Firestation #10
31475 BRYAN
1967
FIRE STATION /OF
25500105
8,047
$0.12
$966
CIRCLE
Transportation
Offices I Bus
350 S Grand St
1979
BUS STORAGE & W
25500052
17,043
$0.12
$2,045
Garage
Transportation
Offices 1 Bus
350 S Grand St
1979
OFFICE
25500050
6,145
$0.12
$737
Garage
Transportation
Offices / Bus
350 S Grand St
1979
OFFICEISHOPI SV
25500051
2,961
$0.12
$355
Garage
Main Firestation
427 W 7TH ST
1975
FIRE STATION
25500057
13628
$0.12
$1,636
#1
El Centro
620 E 7TH
1934
Recreation Center
25500066
10,260
$0.12
$1,231
City Park Pool
700 GOAODNIGHT
1958
BATHHOUSE
25500078
2,025
$0.12
$243
City Park Office
700 GO ENIGHT
1985
OFFICE & EDUCAT
25500081
6,284
$0.12
$764
Parks /Offices
700 GOODNIGHT
1934
OFFICE/ PAVILION
25500085
6,621
$0.12
$795
Pavillion
AVE
Firestation #7
840 S PUEBLO
1983
FIRE STATION
25500174
2,573
$0.12
$309
BLVD
City Park Softball
Fields (7), Tennis
Courts (2), and
700 GOODNIGHT
Various
LIGHTING
N/A
NIA
NIA
$650
Basketball Courts
AVE
f2
City Park
GOODNIGHT
1999
KIDDIE RIDE
25500213
1,488
$0.12
$179
PARK/CITY
RESTROOM /MEETING
Airport Electrical
NORTH OF
1944
ELECTRICAL BLDG
25500106
521
$0.12
$63
Build in
RUNWAY
Page 2 of 3