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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. Page 1 of 23 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. Page 2 of 23 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. Page 3 of 23 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 Page 4 of 23 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. Page 6 of 23 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. Page 7 of 23 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. Page 8 of 23 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. Page 9 of 23 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: Page 10 of 23 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 Page 1 I of 23 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 Page 12 of 23 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