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HomeMy WebLinkAbout08762ORDINANCE NO. 8762 AN ORDINANCE APPROVING AN AGREEMENT BETWEEN THE CITY OF PUEBLO AND MCKINSTRY ESSENTION, LLC FOR A PRELIMINARY TECHNICAL ENERGY AUDIT FOR THE JAMES R. DIIORIO WATER RECLAMATION FACILITY, BUDGETING AND APPROPRIATING A SUM OF $275,000 FROM THE SEWER USER FUND RESERVES TO COMPLETE A FINAL TECHNICAL ENERGY AUDIT, AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME WHEREAS, the City operates the James R. DiIorio Water Reclamation Facility for the purpose of treating municipal wastewater; and WHEREAS, electric energy cost is the largest component of wastewater treatment costs; and WHEREAS, the City desires to minimize the use of electricity in wastewater treatment in order to control wastewater rates; NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Contract for Technical Energy Audit and Project Proposal between the City of Pueblo, a Municipal Corporation, and McKinstry Essention, LLC for conducting technical energy audits for the James R. DiIorio Water Reclamation Facility, a copy of which is attached hereto, having been approved as to form by the City Attorney, is hereby approved. The President of the City Council is authorized to execute and deliver the Contract for Technical Energy Audit and Project Proposal in the name of the City and the City Clerk is directed to affix the seal of the City and attest same. SECTION 2. Work performed under this contract shall include the following items: 1. Data and information collection; 2. Identification of potential energy savings measures; 3. Analysis of base-year electric power consumption; 4. Preliminary analysis of potential energy saving measures; 5. Savings and cost analysis; and 6. Completion and presentation of a technical energy audit report. SECTION 3. The sum of $275,000 is hereby budgeted and appropriated from the Sewer User Fund Reserves to fund the preliminary and final technical energy audits. SECTION 4. The President of the City Council is hereby authorized to execute said Agreement on behalf of Pueblo, a Municipal Corporation, and the City Clerk shall affix the Seal of the City thereto and attest the same. SECTION 5. Funds for work performed under this agreement shall be from the Sewer User Fund. SECTION 6. The officers and staff of the City are directed and authorized to perform any and all acts consistent with the intent of this Ordinance and the attached agreement to effectuate the transactions described therein. SECTION 7. This Ordinance shall become effective immediately upon passage and approval. INTRODUCED: July 28, 2014 BY: Chris Kaufman COUNCILPERSON PASSED AND APPROVED: August 11, 2014 City Clerk’s Office Item # R-3 Background Paper for Proposed O RDINANCE COUNCIL MEETING DATE: July 28, 2014 TO: President Sandra K. Daff and Members of City Council CC: Sam Azad, City Manager VIA: Gina Dutcher, City Clerk FROM: Gene Michael, Wastewater Director SUBJECT: AN ORDINANCE APPROVING AN AGREEMENT BETWEEN THE CITY OF PUEBLO AND MCKINSTRY ESSENTION, LLC FOR A PRELIMINARY TECHNICAL ENERGY AUDIT FOR THE JAMES R. DIIORIO WATER RECLAMATION FACILITY, BUDGETING AND APPROPRIATING A SUM OF $275,000 FROM THE SEWER USER FUND RESERVES TO COMPLETE A FINAL TECHNICAL ENERGY AUDIT, AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME SUMMARY: Attached is an Ordinance accepting an agreement with McKinstry Essention, LLC to perform preliminary and final technical energy audits at the James R. DiIorio Water Reclamation Facility. These audits will serve as a basis for capital projects aimed at reducing electric energy consumption at the Water Reclamation Facility. PREVIOUS COUNCIL ACTION: None. BACKGROUND: The City of Pueblo operates the James R. DiIorio Water Reclamation Facility to provide treatment of municipal wastewater. Electric energy cost is the largest single component of treatment costs. The Water Reclamation Facility was constructed in the mid-1980s and came on line in 1987. Many pieces of electrical equipment are more than 25 years old and in need of replacement. Many pieces of electrical equipment are also obsolete and have been replaced by more efficient designs. By targeted replacement of selected equipment, as well as modifications to work schedules and exploration of options to generate energy, the Wastewater Department may be able to reduce electric energy consumption. Reduced electricity consumption may be able to assist the City in controlling future wastewater rate increases. The final technical energy audit, which involves identification of replacement equipment, changes in work schedules, and examination of options for generating electricity at the Water Reclamation Facility, is expected to cost approximately $275,000. This Ordinance budgets and appropriates that amount from the Sewer User Fund Reserves to complete the final audit. McKinstry Essention LLC is an energy service company that has been qualified through competitive bidding by the State of Colorado to perform industrial energy audits in Colorado. A letter documenting McKinstry’s selection by the Department of Local Governments is attached. McKinstry intends to subcontract with Tetra Tech, a consulting engineering firm, to assist with the wastewater treatment-related technical aspects of the energy audits. FINANCIAL IMPLICATIONS: Both the preliminary and final technical energy audits are scheduled for completion by mid-2015, at a maximum cost of $348,170 for both audits. Funds are available from the Sewer User Fund Reserves. BOARD/COMMISSION RECOMMENDATION: None. STAKEHOLDER PROCESS: None. ALTERNATIVES: The alternative to performing energy audits is to continue replacing electrical equipment as it fails, and continue using historical operating practices despite rising electric costs. RECOMMENDATION: The Wastewater Department recommends approval of this Ordinance. Attachments: Contract for Technical Energy Audit and Project Proposal Letter to Naomi Hedden from Rick Hanger, Housing Technology and Standards Section Manager, Colorado Department of Local Affairs TechnicalEnergyAuditContract-City of Pueblo Contract for Technical Energy Audit and Project Proposal This Contract, dated June 28 , 2014, is entered into by and between McKinstry Essention, LLC (hereinafter called "Contractor"), and the City of Pueblo, Colorado, (hereinafter called the "Owner"). 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, Colorado Energy Office coordinates a program under § 29-12.5, 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 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 0 Avner 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 CEO 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 20 ri 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 June 1, 2014, and terminate on May 31, 2017 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. 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 Page 2 of 20 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 Contractor's 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 § 29-12.5, C.R.S. B.Time of Performance The Work shall be completed during the initial term or any extension thereof Page 3 of 20 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 terms 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. 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. Page 6 of 20 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 fade request under the Open Records Act, Contractor will provide such documents without charge to Owner. 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 Page 7 of 20 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. 11. WARRANTIES 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. Page 8 of 20 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. 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 (Comply with local government requirements) Contractor shall obtain and maintain insurance as specified below herein at all times prior to the termination or expiration of this Contract: Page 9 of 20 A.Worker's Compensation Worker's Compensation Insurance as required by state statute, and Employer's Liability Insurance covering all of the Contractor's employees acting within the course and scope of their employment. B.General Liability Commercial General Liability Insurance written on ISO occurrence form CG 00 01 10/93 or equivalent, covering premises operations, fire damage, independent contractors, products and completed operations, blanket contractual liability, personal injury, and advertising liability with minimum limits as follows: i. $1,000,000 each occurrence ii. $1,000,000 general aggregate; iii. $1,000,000 products and completed operations aggregate; and iv. $50,000 any one fire. If any aggregate limit is reduced below $1,000,000 because of claims made or paid, the Contractor shall immediately obtain additional insurance to restore the full aggregate limit and furnish to the Owner a certificate or other document satisfactory to the Owner showing compliance with this provision. C.Automobile Liability Automobile Liability Insurance covering any auto (including owned, hired and non-owned autos) with a minimum limit as follows: $1,000,000 each accident combined single limit. D.Additional Insured The Owner shall be named as additional insured on the Commercial General Liability and Automobile Liability Insurance policies (leases and construction contracts require additional insured coverage for completed operations on endorsements CG 2010 11/85, CG 2037, or equivalent). E.Primacy Coverage required of the Contract shall be primary over any insurance or self-insurance program carried by the Owner. F. Cancellation The Insurance shall include provisions preventing cancellation or non-renewal without at least 30 days prior notice to the Owner by certified mail. Page 10 of 20 G.Subrogation Waiver All insurance policies in any way related to the Contract and secured and maintained by the Contractor as required herein shall include clauses stating that each carrier will waive all rights of recovery, under subrogation or otherwise, against the Owner, its agencies, institutions, organizations, officers, agents, employees, and volunteers. H.Satisfactory Insurers All insurance policies and coverages required hereunder shall be issued by reputable insurance companies satisfactory to the Owner. I.Certificates Contractor shall provide certificates evidencing insurance coverage required hereunder to the Owner within 10 business days of the Effective Date or before commencement of Contractor's performance hereunder, whichever occurs first. No later than 15 days prior to the expiration date of any such coverage, Contractor shall deliver the Owner certificates of insurance evidencing renewals thereof. At any time during the term hereof, the Owner may request in writing, and the Contractor shall thereupon within 15 days supply to the Owner, evidence satisfactory to the Owner of compliance with the provisions of this section. 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. Page 11 of 20 15. REMEDIES 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 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 Page 12 of 20 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 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. Page 13 of 20 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 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. Page 14 of 20 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. 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: Gene Michael Title/Position: Wastewater Director 10cal government City of Pueblo Address: 1300 S. Quebec Ave. Address: Pueblo, CO 81001 Tel (719) 553-2898 Fax (719) 553-2957 Mobile E-Mail gmichael@pueblo.us ii. Contractor: Contractor Name: McKinstry Essention, LLC Contractor Rep.Name: Leslie Larocque Title/Position: Business Development Director Address: 112 N. Rubey Dr., #200 Address: Golden, CO 80403 Tel (303)215-4044 Fax (303)215-4041 Mobile (303) 870-6821 E-Mai I Lesl ieL@McKinstry.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, Page 15 of 20 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. 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. Page 16 of 20 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 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 Pueblo. 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: Page 17 of 20 i. Colorado Special Provisions ii. Exhibit A, then iii. Exhibit B, then iv. Exhibit C, then v. Exhibit D. 19. COLORADO SPECIAL PROVISIONS The Special Provisions apply to all Contracts except where noted in italics. 19.1. OWNER'S APPROVAL. This contract shall not be deemed valid until it has been approved by the Owner or designee. 19.2. 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. 19.3. INDEMNIFICATION. Limited to the Contractor's proportionate fault, the 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. Neither party shall be liable to the other party for any consequential, indirect, special, incidental, exemplary, or similar, damages or losses, including loss of profits, arising out of or relating to this Agreement, whether based in contract or tort or any other theory, even if a party has been advised of the possibility of such damages. 19.4. 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. Page 18 of 20 19.5. 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. 19.6. 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. 19.7. 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. 19.8. 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. 19.9. PUBLIC CONTRACTS FOR SERVICES. CRS §8-17.5-101. Contractor certifies, warrants, and agrees that it does not knowingly employ or contract with an illegal alien who will perform work under this contract and will confirm the employment eligibility of all employees who are newly hired for employment in the United States to perform work under this contract, through participation in the E-Verify Program or the Department program established pursuant to CRS §8- 17.5-102(5)(c), Contractor shall not knowingly employ or contract with an illegal alien to perform work under this contract or 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. Contractor (a) shall not use E-Verify Program or Department program procedures to undertake pre-employment screening of job applicants while this contract is being performed, (b) shall notify the subcontractor and the Owner within three days if Contractor has actual knowledge that a subcontractor is employing or contracting with an illegal alien for work under this contract, (c) shall terminate the subcontract if a subcontractor does not stop employing or contracting with the illegal alien within three days of receiving the notice, and (d) shall comply with reasonable requests made in the course of an investigation, undertaken pursuant to CRS §8-17.5-102(5), by the Colorado Department of Labor and Employment. If Contractor participates in the Department program, Contractor shall deliver to the Owner or political subdivision a written, notarized affirmation, affirming that Contractor has examined the legal work status of such employee, and comply with all of Page 19 of 20 the other requirements of the Department program. If Contractor fails to comply with any requirement of this provision or CRS §8-17.5-101 et seq., the contracting State agency, institution of higher education or political subdivision may terminate this contract for breach and, if so terminated, Contractor shall be liable for damages. 19.10. PUBLIC CONTRACTS WITH NATURAL PERSONS. CRS §24-76.5-101. Contractor, if a natural person eighteen (18) years of age or older, hereby swears and affirms under penalty of perjury that he or she (a) is a citizen or otherwise lawfully present in the United States pursuant to federal law, (b) shall comply with the provisions of CRS §24-76.5-101 et seq., and (c) has produced one form of identification required by CRS §24-76.5-103 prior to the effective date of this contract. THE PARTIES HERETO HAVE EXECUTED THIS CONTRACT * Persons signing for Contractor hereby swear and affirm that they are authorized to act on Contractor's behalf and acknowledge that the Owner is relying on their representations to that effect. CONTRACTOR: McKinstry Essention, OWNER: City of Pueblo LLC tt Name: 16111 Tefli(�cy Name: Sandra K. Daff Titl -QF / Title: Pr t of ity Counc Signature 6 Signature /i Attest Gi Dutcher, City Clerk Page 20 of 20 TEA Contract Exhibit A Exhibit A to Technical Energy Audit & Project Proposal Contract Scope of Work City of Pueblo ESCOs: Use checkboxes to indicate entire section is complete. 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 wastewater treatment process. f.Description of all energy-consuming or energy-saving equipment used on the premises. g. Description of energy management procedures utilized on the premises. h. Description of any energy-related improvements made or currently being implemented. i.Description of any changes in the structure of the facility or energy-using or water-using equipment. j.Description of future plans regarding building or process modifications or equipment modifications and replacements. k. Drawings, as available (may include mechanical, plumbing, electrical, building automation and temperature controls, structural, architectural, modifications and remodels). I.Original construction submittals and factory data (specifications, pump curves, etc.), as available. m.Operating engineer logs, maintenance work orders, etc., as available. n. Records of maintenance expenditures on energy-using equipment, including service contracts. o. 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. Page 1 of 7 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. 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. 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 the following opportunities: i. Continue the migration from the 25-year old, energy and maintenance-intensive enclosed influent screw pumps to submersible or dry pit centrifugal units. ii. Automate primary sludge pumping operations to maintain a target thin sludge underflow concentration, which will better match actual process needs and reduce the tendency to over pump at night when influent solids loads are lower. This ECM may require replacement of the line or the pumps due to head loss induced by the 6-inch Page 2 of 7 pump discharge line that prevents both primary clarifiers from being pumped simultaneously. iii. Work with the operators to further optimize the biological nutrient removal (BNR) process, so WRF Staff can take oxic basins off line and reduce activated sludge aeration and energy requirements. iv. Investigate ways to better pace ultraviolet (UV) dosage to reduce electricity usage without compromising effluent quality. v. Determine cost/benefit of adding another 100 kW (DC) in the space provided when the 300-kW system was installed in 2010. The electrical design for the recent WRF improvements included provisions to run the additional solar electric power, with a new inverter, directly to the UV Building to offset disinfection energy requirements. vi. Replace the two existing 25-year old centrifuges, which have exceeded their useful lives, with units that are both more energy efficient and will produce drier cake solids, reducing costs for supplemental air drying and landfill disposal. Alternatively, consider replacing the existing centrifuges with belt filter presses (BFPs). Complete Net Present Value (NPV) analyses to determine the recommended dewatering equipment. vii. Consider equipping the new centrifuges with in-line total suspended solids (TSS) meters to continuously monitor feed solids flux rate and optimize polymer dosing (e.g. Hach RTC-ST System). viii. Evaluate the cost/benefit of replacing older, inefficient motors throughout the WRF with premium efficiency units. ix. Determine the feasibility of various means of utilizing cleaned digester gas, including co-generation and fuel cells. This evaluation should consider the possibility of augmenting gas production through the addition of a reliable supply of food wastes directly to the digesters. Potential food waste sources include CSU-Pueblo, local breweries, biofuel production, and fats, oils, and grease (FOG). x. Consider installation of a humidity-controlled solar greenhouse for drying a portion of the City's digested sludge production. Such systems utilize automatic humidity control, down blast airflow, and the movement of a robotic "mole" on a hard-bottomed surface to renew the surface of the drying biosolids to evaporation. Two options will be considered: drying 2.0 percent liquid digested sludge and 18 to 22 percent dewatered cake from existing or new centrifuges, both with and without the circulation of waste heat from co-generation or fuel cell facilities to the greenhouse. xi. Depending upon actual hydraulic retention times (HRTs) in the digesters, consider reducing mixing times and/or intensities. Because of their long detention times, anaerobic digesters do not need to be mixed like activated sludge aeration basins in order to provide intimate contact between the feed sludge and the treatment bacteria. Digester mixing levels are never sufficient enough to prevent grit accumulation, so reduced or on/off mixing should not alter digester cleaning frequencies. Page3of7 xii. Xcel Energy will not purchase digester gas that is cleaned to pipeline quality standards. However, a search can be made for large direct-to-user customers, such as the local BHE power generating plant, Vestas Wind Tower Fabrication Plant, GCC Rio Grande Cement Plant, and CSU-Pueblo. b. Identify measures which appear likely to be cost effective and therefore warrant detailed analysis. c. For each measure, prepare a preliminary estimate of energy, water unit and cost savings, and operational, maintenance or othercost 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 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. Adhere to percentage ranges of project costs stated in contract in all cost estimates. e. Develop a preliminary measurement and verification plan for each measure. f. Follow additional guidelines for analysis and report preparation given below. 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. Brief executive summary identifying at a minimum any project phases, building names, total project cost, total energy and water savings, and financial summary. iii. Summary table of recommended energy and water saving measures, by building/ECM, with itemization for each measure of total design and construction cost, rebates, all capital contributions, annual maintenance costs, the first year cost avoidance (in dollars and energy/water units), emissions reductions, simple payback and new equipment service life. iv. Summary by building of annual energy and water use by fuel type and costs of existing or base year condition. Compare energy use index in kBtu per ft2 per year of building Page 4 of 7 both before and after retrofit and benchmark with the most recently released version of the Commercial Buildings Energy Consumption Survey (CBECS), and benchmark with the average (or best) building of its type. v. 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. vi. Summary of annual energy and water use by fuel type and costs of existing or base year condition. vii. Calculation of cost savings expected if all recommended measures are implemented and total percentage savings of total facility energy cost. viii. Description of the existing facility, mechanical and electrical systems. ix. Summary description of measures, including estimated costs and savings for each as detailed above. x. Discussion of measures considered but not investigated in detail. xi. 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: 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 installation/implementation. x: 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. Page 5 of 7 £; J. Future capital cost avoidances, because they are not explicitly cost savings and are instead reallocated Owner capital funds, must be clearly noted and include an explanation as such for edification of the Owner. K. 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. L. If manual calculations are employed, formulas, assumptions and key data shall be stated. M.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. ESCo or Contractor/vendor estimates showing breakdown 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. ESCO shall engage all appropriate utility companies and reasonably apply all available rebates and incentives available from the utility to reduce the overall cost of the project. G. ESCO shall state whether applicable rebates for EPAct 2005 were pursued in each area of lighting, HVAC, and envelope measures, including supporting details for how they are being pursued. If they are not being pursued, please explain why. H. Note that all project percentages 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. I. Conclusions, observations, caveats. J. Other cost categories as defined above under "Project Percentages" in Contract. d. Miscellaneous: i. Estimate of average useful service life of equipment. ii. Preliminary commissioning plan. Preliminary commissioning plan shall follow the Comissioning Guidelines for Energy Saving Performance Contracts in State of Colorado Facilitiesl. Located on CEO's website at http://www.colorado.,gov/cs/Satellite/GovEnergyOffice/CBON'1251599983018 Page 6 of 7 iii. Preliminary rreasurement and verification plan, following Measurement and Verification Guidelines for Energy Saving Performance Contracts in State of Colorado Facilities'., 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. n 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 project percentages established in Exhibit D to the TEAPP. Costs shall include: engineering, designing, procuring, installing (from Technical Energy Audit Report results); performance/payment bond costs; construction management costs; commissioning costs; maintenance costs; monitoring and verification costs; training costs; and overhead and profit. ESCO may present other project- related costs if reviewed and approved by CEO, and previously disclosed in ESCO's proposal and presented in the TEAPP. 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. (CEO and/or the Owner shall be consulted on the appropriate fuel price escalation factors for all projects.) yah 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 version of Measurement and Verification Guidelines for Energy Saving Performance Contracts in State of Colorado Facilities. g. Analysis of annual cash flow for Owner during the contract term. Page 7 of 7 TEA Contract Exhibit B Exhibit B to Technical Energy Audit & Project Proposal Contract Notice of Acceptance of Technical Energy Audit Report for Local Government 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 August 11, 2014 , notice is hereby given that the Owner accepts the Contractor's Technical Energy Audit and Project Proposal. Accepted by Name: Sandra K. Daff Title: Pres' ent of City Cou 1 Signature: --��{ � Date: August 11, 2014 , TEA Contract Exhibit C Exhibit C—Technical Energy Audit & Project Proposal Contract - Buildings Included in Scope of Work Customer Name: City of Pueblo The Technical Energy Audit (TEA) Scope of Work will be performed at the James R. DiIorio Water Reclamation Facility. Page 1 of 1 TEA Contract Exhibit D x; Exhibit D —Technical Energy Audit & Project Proposal Contract Project Cost and Pricing Elements COST AND PRICING Maximum rates were established for ESCOs participating in the CEO/EPC program. Below are percentages of the total project cost that are agreed to for this specific project that are equal to or less than the maximum established percentages, based on the size, scope and location of this specific project. TEA Costs The City of Pueblo and McKinstry have agreed to approach the TEA as two distinct phases of work. The first phase of work, the Preliminary TEA (PTEA), will include Scope of Work Items 1-5 detailed in Exhibit A. The Final TEA (FTEA) will include Scope of Work Items 6-10 detailed in Exhibit A. Costs are outlined in the table below. Costs for the PTEA are based on a preliminary analysis of the items listed in Scope of Work Item 4 in Exhibit A. FTEA costs are estimated as a maximum cost for budgeting purposes. At the completion of the PTEA, these costs will be re-estimated and revised via addendum to this contract, based on the scope of work of the FTEA. Scope Tetra Tech McKinstry Subtotal Total Phase 1 $18;866 $73 0 Phase 2 FT �/ maiclrnum , €;$200;000;' sm „$75,t}()0 $275,0, Total $348,170 Project Percentages Percentages of the total project for each line item shall be calculated and should not exceed what is stated for the duration of the project. Use only the categories shown. Supplying ranges for the percentages is acceptable. ( Page 1 of 3 l® • , gif fix! 0 e c c — c c e ;= s,3 pa d A b M A �. R N .„t. J V 4 H u n 'Z' % v ' :•.',,,,','. t m v zEa ;try '>r E E E E E E E ` c r t+.`u d �„ . s irar x' s F 4s '"'r ;gym i a ? o o a o i o '.; y.. RJ 'i f , "1 V. u u V . E F 'dv m ,{~ b m` m A n m c of i t u c7 'U 0 ,3 C9 u ', • i, , "; WF s AFF 'Z';';:: FFC C C C. C G ;.. § S di,. d t U P V C U k T%,y ',4.' ',414, ! sk rs E h 5 E E c .5 5 g ,. ,- a '. r ax, .1IflHHH ! y ':::.i'' �r r . 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Xlie 4z dp i tt� e u �+it1'44 -Iii: 51!. �a. •k3 rC:`,i�1 r v,� ,t k z:' v to ', g.{�t 1,,,,,:i3 >e 3 1:,;' e @ dt I7: dri ,t yti. ;' , ' C d ( Ib y {,St i' a�r ' - a € ,, g E ^a 1.MX `� dim r{ �a q , °.� ^b� J -''' rsE a r.�3 ]4j �a,..a.s'� 4 a ek `;',':,`.i.: ,,,,, „,,,,, !i-,,,,,,,,,,,':,,,:t.,;,,,,,:,.i.)1. 10 'i '..,1';,li,,,,,,,.: '-' X nw7 d .a t Y e ','ii ; y ,',',1;,,i;,, j FII; C ;o .. — I,, vJ qr G s C �Sss.."',:,',,,f,'''''.1- �;,'� a ,,,..: l',.,:',..' , F,...`,,::::',,L1-17,-- ',':', -6 i� p0l ivI::'1"';',1:4:''1:,,';' �', � N iir,'..:/' ''....„''l,A: c iA ti cw °,• ,1111 r iiiIiiiii " "e3 Fr;,' A qihr +def'tIHHHHI1I 41, t I I t NOTES: * For CEO base agreement and RFP responses, a range is acceptable if justified. ** For submittal the "CEO Cost Estimate Tool" should be utilized and an image of it inserted above (deleting the placeholder). The "Cost Estimate Tool" should be utilized throughout the project to demonstrate that "Actual Final TEA Costs" agree with "TEA Contract Maximums". *** If there are questions or concerns related to desired Cost Pricing values please contact Colorado Energy Office EPC Engineer Jeff Wanner (303.866.2163). Annual Costs Use only the categories shown. Proper cost determination and expected length of service should be noted for all services. 4(A a 0laY'OF "tlow price is Determined 'Year~ Applied (One time,Annual,etc) .A�`l3t43t�, •d {kn 3' •u ry �M t T: f �J {{ t v Y 5 a• -.. • i t �'A., 1 16 •ANNUPAI C4)Sf e �;, ,. n�" wa y ?+ 9, i° au , ,•••••I%6•• ... �_ .a,.,. . �•. ..�.�..'.. y�..'� ... , Warranty Actual cost percentage and/or price One year on the entire project with the option to extend at is highly dependent upon the ECMs City's discretion. Manufacturer's equipment warranties are installed as part of the final project. extended to the City. Measurement and Actual cost percentage and/or price The first two (2)years are required under the Colorado Verification is highly dependent upon the final Energy Office program and State legislation with the option ECMs installed and M&V options to extend at the City's discretion. selected as part of the project. However, percentage is typically 5%— 10%of the total guaranteed savings amount. Maintenance Actual cost percentage and/or price A maintenance agreement with McKinstry is not required as is highly dependent upon the final part of the project and is completely optional at the City's ECMs installed as part of the discretion. project. Other Not applicable Not applicable Page 3 of 3