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HomeMy WebLinkAboutbocc.con.070.2011 ..�..�...., .m....., ... ..mss . , . _ .. ... ...... ... ._ , . . _. .... ........�....a....:......« ... .. Rev. 08 -30 -11 jls COUNTY CLERK'S CONTRACT COVERSHEET CONTRACT #: 0 %D o D// ORIGINATING DEPARTMENT: Public Works / Energy Department / Facilities PROCUREMENT OFFICER: Brian Pettet PHONE #: 5392 PROJECT NAME: Technical Energy Audit CONTRACTOR: Ennovate Corporation DOLLAR AMOUNT: $17,728.20 LINE ITEM # 2Q /, 5/, q1/210, 8 222 CONTRACT EXECUTION DATE: 5/20/2010 CONTRACT END DATE: 5/1/2011 AUTOMATIC RENEWAL: El YES ® NO TERM: 13 months El BOCC AGENDA ITEM (Grants, IGA) ® STAFF AUTHORIZED SIGNATURE (Requires BOCC Signature) (Per Revised Procurement Code 7/2005) ❑ OVER $50,000 (Requires Section Leader & County Manager's Signature) ✓ CHECK PROCUREMENT TYPE: ❑ None ® Informal ❑ Formal ❑ Sole Source ❑ Emergency ❑ Outside Agency /State Bid ❑ Compliance with C.R.S. 8 -17 -5 -101, 102 as amended (Immigration Form) ❑ Exempt ❑ Contract Renewal ✓ CHECK CONTRACT TYPE: f ❑ Services/Maintenance ❑ Employment ❑ License/Use ❑ Intergovernmental Agreement (Resolution Required) ❑ Lease ❑ Non - Profit ❑ Construction ❑ Quasi - Public (e.g. -AVH) ❑ Goods, Equipment, Supplies ❑ Grant Agreements (Notify Finance & Resolution Required) ❑ Other (e.g. revenue) ❑ Change Order /Contract Amendment (C /O: 10% or $25K whichever is the lesser must have County Manager signature) All Contracts should be proofed and all exhibits and notices must be attached for the following: ✓ ® No Pages Missing ✓❑ All Other Blanks Filled hi ✓ ❑ If Page Left Intentionally Blank — Note on Page ✓❑ All Exhibits Attached ✓ ® Page numbered consecutively 10 All Legal Descriptions attached (if applicable) ✓ ❑ All Original Signatures Affixed in Notice of Award/Notice to Proceed Attached (f applicable) ✓ ® All Dates Filled In ✓❑ Warranty (if applicable) ✓ ❑ Special Instructions for Finance Department: ✓ ® Authorized Procurement Officer's Name: Brian Pettet BY CHECKING ABOVE AND ENTERING NAME, THE AUTHORIZED STAFF PERSON INDICATES THAT THE ATTACHED DOCUMENT HAS BEEN PROOFED AND READY FOR SCANNING. NOTE: CLERK'S OFFICE WILL KEEP ORIGINAL DOCUMENTS IN COMPLIANCE WITH COLORADO STATE ARCHIVES RETAINAGE SCHEDULE. ALL ATTACHMENTS MUST BE WITH THIS CHECKLIST! Contract for Technical Energy Audit and Project Proposal This Contract, dated April 1, 2010 is entered into by and between Ennovate Corporation (hereinafter called "Contractor "), and the Pitkin County Colorado, a Colorado Horne Rule Municipality (hereinafter called the "Agency "). WHEREAS, the Pitkin County is the Agency 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 § 29- 12.5 -101, 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 Proposals 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 Agency or its designee (hereinafter called the "Effective Date "), but shall be effective and enforceable thereafter in accordance with its provisions. The Agency 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 Agency officials. Page 1 of 30 • B. Purpose and State's Role The Governor's Energy Office (GEO) has approved this Contract 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. 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 Agency'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 Agency 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 May 1, 2010 and terminate on June 1, 2011 . or upon completion of Work, unless sooner terminated as Page 2 of 30 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 Agency, 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 Agency'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 Agency and, based on such determination, Contractor shall submit a Project Proposal setting forth a plan for implementing such measures through an Energy Perfonnance Contract. Agency 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 by Agency. Agency 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 Agency's receipt of the Technical Energy Audit Report. Nothing in this Contract shall be construed to require Agency to enter into an Energy Performance Contract with Contractor. However, should Agency 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 Agency's delivery of the Notice of Acceptance of Technical energy Audit Report (Exhibit B) to Contractor. The deadline for execution of the Energy Perfonnance Contract may be extended upon request by Agency to allow Agency 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- 101, C.R.S. Page 3 of 30 B. Time of Performance The Work shall be completed during the initial terra 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 Agency 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 Agency 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 Agency 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 Agency and Contractor not enter into an Energy Performance Contract as provided under Section 5 (A) above, Agency 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 (120) days of Agency'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 Agency with funding options sufficient to pay the costs of implementing such savings. Should the Contractor determine at any time during the Technical Energy Audit that savings cannot be attained to meet Page 4 of 30 Agency's terms as required by CRS §29- 12.5 -101, the Technical Energy Audit shall be terminated by written notice by the Contractor to Agency. In this event this Contract shall be terminated and the Agency shall not be liable to pay Contractor, in whole or part, the Compensation to Contractor specified in this Section 6. E. Available Funds Contingency Remedies The Agency is prohibited by law from making fiscal commitments beyond the tern of its current fiscal period. Therefore, Contractor's compensation is contingent upon the continuing availability of Agency 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 Agency'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 Agency's liability for such payments and the Contractors responsibility to perform work shall be limited to the amount remaining of such encumbered funds. If Agency funds are not appropriated, or otherwise become unavailable to fund this Contract, the Agency 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 tennination hereof. Any funds not required to complete Contractor's obligations hereunder shall be de- obligated by the Agency. If Contractor receives overpayments, Contractor shall refund all excess funds to the Agency 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 Agency. 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 Agency's sole discretion, be recovered from Contractor by deduction from subsequent payment under this Contract or other contracts between the Agency 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 30 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 Agency of such action and deliver copies of such pleadings to the Agency's principal representative in accordance with the Notice section of this Contract. B. Remedies Contractor's failure to provide reports and notify the Agency in a timely manner in accordance with this section may result in the delay of payment of funds and/or termination under Section 15 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 Agency 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 tennination 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 pennit the Agency 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 30 9. CONFIDENTIAL INFORMATION - AGENCY RECORDS Contractor acknowledges that it may become privy to confidential information in connection with its performance hereunder, including, but not limited to Agency records, personnel records, and information concerning individuals. A. Confidentiality It shall be Contractor's responsibility to keep all Agency 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 Agency. Any request or demand for information in the possession of Contractor made by any third party shall be immediately forwarded to the Agency'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 Agency. Contractor shall provide and maintain a secure environment that ensures confidentiality of all Agency 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 Agency. D. Disclosure Liability Disclosure of Agency 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, Agency may be required to disclose public records pursuant to the Colorado Open Records Act 024 -72 -201, et. seq.). Contractor agrees that, should any public records in its possession be requested for production by Agency pursuant to a bona fide request under the Open Records Act, Contractor will provide such documents without charge to Agency. Page 7 of 30 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 Agency's interests. Absent the Agency'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 Agency 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 Agency Default If Contractor is uncertain whether the appearance of a conflict of interest exists, Contractor shall submit to the Agency a disclosure statement setting forth the relevant details for the Agency's consideration. Failure to promptly submit a disclosure statement or to follow the Agency'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 Agency within 15 days of the Agency's written request therefore. Page 8 of 30 11. WARRANTIES A. Services and Goods During the teen of this Contract, Contractor, as part of Contractor's obligations hereunder and at no additional cost to the Agency, 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 Agency. 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 Agency 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 Agency may require Contractor to promptly perform the Services or provide Goods again in conformity with Contract requirements, at no additional cost to the Agency. If such breaches cannot be, or are cured, the Agency 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 Agency. Page 9 of 30 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 perfonning 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 terns. 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 Agency 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 Agency's FEIN # is 84- 6000794 and its tax exempt # is 98- 02624. 13. INSURANCE Contractor shall obtain and maintain insurance as specified below herein at all times prior to the termination or expiration of this Contract: 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. Page 10 of 30 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; 111. $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 Agency a certificate or other document satisfactory to the Agency 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 Agency 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 Agency. F. Cancellation The Insurance shall include provisions preventing cancellation or non - renewal without at least 30 days prior notice to the Agency by certified mail. 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 Page 11 of 30 recovery, under subrogation or otherwise, against the Agency, its agencies, institutions, organizations, officers, agents, employees, and volunteers. 11. Satisfactory Insurers All insurance policies and coverages required hereunder shall be issued by reputable insurance companies satisfactory to the Agency. 1. Certificates Contractor shall provide certificates evidencing insurance coverage required hereunder to the Agency 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 Agency certificates of insurance evidencing renewals thereof. At any time during the term hereof, the Agency may request in writing, and the Contractor shall thereupon within 15 days supply to the Agency, evidence satisfactory to the Agency 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. 15. REMEDIES If Contractor is in default under any provision of this Contract including, but not limited to the Special Provisions, the Agency 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 12 of 30 Agency 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 Agency is entering into this Contract for the purpose of carrying out the public policy of the Agency, as determined by its elected and appointed officials. If this Contract ceases to further the public policy of the Agency, the Agency, in its sole discretion, may terminate this Contract in whole or in part. Exercise by the Agency of this right shall not be deemed a breach of the Agency's obligations hereunder. This subsection shall not apply to a termination of this Contract by the Agency for cause or default by Contractor, which shall be governed by the Termination for Cause and/or Default subsection of this Remedies section. 1 Method and Content. The Agency 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 perfonnance 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 Agency 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 Agency, Contractor shall assign to the Agency 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 Agency 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 Agency in the possession of Contractor shall, at the option of the Agency, be delivered by Contractor to the Agency and shall become the Agency's property. Contractor shall complete and deliver to the Agency 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 Agency for any reason other than for Cause as described in sub - section B of this Section 15, 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 Agency 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. Page 13 of 30 i e 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 Agency 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 Agency, 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 Agency of this right shall not be deemed a breach of its obligations hereunder. i. Method and Content The Agency shall give written notice of tennination 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 perfonnance 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 Agency all Services and Goods not cancelled by the termination notice and may incur obligations as are necessary to do so within the Contract tenns. In the sole discretion of the Agency, Contractor shall assign to the Agency all of Contractor's right, title, and interest under such terminated orders or subcontracts. Upon tennination, Contractor shall take timely, reasonable and necessary action to protect and preserve property in the possession of Contractor in which the Agency has an interest. In the sole discretion of the Agency, Contractor shall assign to the Agency 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 Agency, be delivered by Contractor to the Agency and shall become the Agency's property. iii. Payments The Agency shall only reimburse Contractor for accepted Services and Goods received up to the date of termination and, if after tennination, 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 Agency, Contractor also shall remain liable to the Agency for any damages sustained by the Agency by virtue of any default under this section by Contractor and the Agency may withhold any payment to Contractor for the purpose of mitigating the Agency's damages, until such time as the exact amount of damages due to the Page 14 of 30 Agency from Contractor is determined. Further, the Agency may withhold amounts due to Contractor as the Agency deems necessary to protect the Agency against loss because of outstanding liens or claims of former lien holders and to reimburse the Agency for the excess costs incurred in procuring similar goods or services. Contractor shall be liable for excess costs incurred by the Agency in procuring from third parties replacement Services or substitute Goods as cover. C. Remedies Not Involving Termination The Agency, 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 Agency 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 Agency; provided that any denial of payment must be reasonably related to the value of work or performance lost to the Agency; and/or iv. Removal Demand removal of Contractor's employees, agents, or subcontractors whom the Agency 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 Agency's best interest, all such cases being within the sole discretion of Agency. 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 15 of 30 B. Representatives The individuals listed below are the principal representatives of the respective Parties. With respect to the Agency's representative(s), they have authority to inspect and reject goods and services, approve invoices for payment, and act otherwise for the Agency, 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. Agency: Name Brian Pettet Position Director of Public Works Agency Name Pitkin County Address 1 76 Service Center Road Address 2 Aspen, CO 81611 Phone (970) 920-5392 Fax (970) 920 -5374 Mobile (970) 379 -3703 E -Mail Brian.petter(aco.pitkin.co.us ii. Contractor: Name Jeff Schuster Position President Contractor Name Ennovate Corporation Address 1 10650 E. Bethany Dr. Aurora, CO 80014 Address 2 Suite A Phone 303- 309 -6223 Fax 303- 309 -6228 Mobile 720 - 201 -5624 E -Mail Jeff .schuster @energyexpertise.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 Agency, 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 16 of 30 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 Agency 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 Agency. Any attempt at assignment, transfer, subcontracting, or novations without such consent shall be void. All subcontracts /subcontractors approved by Contractor or the Agency 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 perfonnance, 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, Page 17 of 30 including indemnifying the Agency 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 Agency 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 Garfield. 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 Agency 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 Agency 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 ix. Exhibit D. Page 18 of 30 19. COLORADO SPECIAL PROVISIONS The Special Provisions apply to all Contracts except where noted in italics. 20.1. AGENCY'S APPROVAL. This contract shall not be deemed valid until it has been approved by the Agency or designee. 20.2. FUND AVAILABILITY. Financial obligations of the Agency 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 Agency, 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 Agency. Contractor shall pay when due all required employment taxes and income taxes and local head taxes on any monies paid by the Agency 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 Agency does not pay for or otherwise provide such coverage. Contractor shall have no authorization, express or implied, to bind the Agency 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 Agency) 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 Agency, 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 19 of 30 20.7. SOFTWARE PIRACY PROHIBITION. Governor's Executive Order D 002 00. No Agency 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 Agency determines that Contractor is in violation of this paragraph, the Agency 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 Agency has any personal or beneficial interest whatsoever in the service or property described in this contract. 20.9. 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 Agency 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 Agency or political subdivision a written, notarized affirmation, affirming that Contractor has examined the legal work status of such employee, and comply with all of 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. 20.10. 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. Page 20 of 30 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 Agency is relying on their representations to that effect. CONTRACTOR: Ennosate Corporation AGENCY: Pitkin County Name: Jeff L. Schuster Name: Brian Pettet Title: President Tide: Dir ctor of Public Works I Si 4 / 72 igna e Page 2i of 30 Exhibit A to Technical Energy Audit & Project Proposal Contract Scope of Work Pitkin County 1) Data and Information. Collect data and background infonnation from Agency 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. 1. 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 nonnal 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. Agency'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. Page 22 of 30 r • 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 terns 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-tern 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 July I, 2005, establish the actual FY 2005/2006 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 2005/2006 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 warrant 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 Agency to present preliminary analysis prior to complete analysis. Describe how the projected project economics meet the Agency'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 Agency 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. Page 23 of 30 f. 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 Agency 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 ieasures, 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. L 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. 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 Agency 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 Agency, 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 Page 24 of 30 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. 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 Agency 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 Agency's terms for completing the Technical Energy Audit and Performance Contract Proposal. Discuss the willingness and capability of Agency to make capital contributions to the project to improve the economics of the overall project. Revise Audit as directed by Agency. 9) Complete and Present Final Technical Energy Audit Report. Deliver final audit report to Agency for approval. Execute Exhibit B to the TEAPP. 10) Proposal. Prepare an Energy Perfonnance Contract Proposal using the State of Colorado's Energy Perfonnance Contract documents. In anticipation of Contractor and Agency entering into an Energy Perfonnance 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 Agency 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. Page 25 of 30 c. Expected tern 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 Agency 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 Agency at this tune, 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 Agency during the contract term. Page 26 of 30 Exhibit B — Technical Energy Audit & Project Proposal Contract Notice of Acceptance of Technical Energy Audit Report 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 Agency, notice is hereby given that Agency accepts the Contractors proposal . AGENCY: Pitkin County Name: Brian ett t Title: Di7Ctor f Public Wor. s • Signature` Date % 4Zc / i\P Page 27 of 30 Exhibit C — Technical Energy Audit & Project Proposal Contract Buildings Included in Scope of Work Agency Name: Pitkin County The following tables lists the buildings included in the Technical Energy Audit (TEA) Scope of Work. Building Building Type Building Age Building Bldg. Bldg. Tot GSF Audit Audit $ $ /SF Courthouse Plaza Office 1978 16,000 $0.09 $1,440 Jail Jail 1989/1995 17,500 $0.09 $1,575 County Courthouse Courthouse /Office 1890 20,000 $0.09 $1,800 Library Library 1991 30,000 $0.09 $2,700 Airport Terminal Terminal 1976 43,080 $0.09 $3,877.20 Airport Operations Office /Maint. 2006 30,000 $0.09 $2,700 Landfill Gatehouse Office 2004 1,400 $0.09 $126 Landfill MRF Warehouse 1960/1993 5,000 $0.09 $450 Shultz HHS Office 1992 16,500 $0.09 $1,485 Public Works Office/Maint. 1989 17,500 $0.09 $1,575 TOTAL COST OF TEA: $17,728.20 Page 28 of 30 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 GEO/EPC program. Below are rates agreed for this specific project that are equal to or less than the maximum established rates, based on the size, scope and location of this specific project. Markups Markups shall be calculated as a percentage added to the base cost for the project. The use of margins in lieu of markups is not acceptable. Use only the categories shown. Ranges for markups are not acceptable. Ennovate utilizes the cost category and pricing table fonnat developed by the GEO as the basis for EPC project pricing. Our project price is calculated by totaling direct and indirect costs, and then applying the overhead and profit mark -ups listed in the table below. Direct costs include material, equipment, labor, subcontractors, engineering, project management, project development, and account management. Since Ennovate was designed as a local energy engineering firm, its indirect costs are minimal. There are no regional, national, or global fees in any of Ennovate's project pricing. Those functions simply do not exist within Ennovate. The few indirect costs that do exist are from office supplies and business costs required to perform accounting, legal, IT, human resources, and training activities. We provide Open Book Pricing. In order to achieve this level of disclosure, we provide copies of vendor and subcontractor quotes to an authorized client representative to validate direct costs. If desired, we can provide a set of reviewed financial statements provided by our independent accounting firm. MARK -UPS CATEGORY OF MARKUP MAXIMUM MARK-UP APPLICATION % MARK- UP Overhead Applies to all direct & indirect costs 12% Profit Applies to all direct & indirect costs 10% Labor — Internal Overhead & profit markup from above N/A apply to this category. There is no additional mark -up. Equipment Purchased Overhead & profit markup from above N/A apply to this category. There is no additional mark -up. Materials Purchased Overhead & profit markup from above N/A apply to this category. There is no additional mark -up. Subcontract Labor Overhead & profit markup from above N/A apply to this category. There is no additional mark -up. Subcontract Material Overhead & profit markup from above N/A apply to this category. There is no additional mark -up. Page 29 of 30 Fees Use only the categories shown. Ranges for fees are not acceptable. FEES Category How Determined and Used Application (lx, Annual) Technical Energy The target rate for Pitkin County is $.09 per square foot. Maximum of$0.25 per One Time Audit square foot oft cility area. Normal cost ranges from $0.06 to $0.15 per square foot and only applies to facilities included in final draft ofTEA. No cost for Preliminary TEA. Specialty buildings like waste water treatment plants, airports, swimming pools, pump houses and irrigation systems are not estimated on a $/sqft basis and are priced on a project by project basis. The target project development fee for Pitkin County is 5% of total project costs. One Time Fees range from $40/hr to $175/hr depending on project developer resources used in design effort. Normally, project developer costs are 3% to 5% of total Project project costs for most EPC efforts. A project developer is not always warranted Development for smaller EPC projects (less than $750,000). These fees are disclosed and negotiated at the presentation ofpreliminary TEA. Solicit & Evaluate Cost is included in project development activity. N/A Financing Engineering The target rate for Pitkin County is 9 %. Complicated ECMs like ground source One Time pumps will have a maximum of 15% of total project costs. These fees are disclosed and negotiated at the presentation of the preliminary TEA. Project The rate for Pitkin County is 8.5% of subcontractor and material costs. One Time Management Contingency 5% ofsubcontractor and material costs One Time Permits Actual cost One Time Performance Bond Actual cost One Time Commissioning Commissioning is priced for specific projects based on complexity ofthe project. One Time Commissioning for lighting retrofits is 1% of lighting retrofit cost. Commissioning for complex projects may be as high as 10% of the retrofit costs. Initial Training on 1 of subcontractor and material costs are allotted for training. One Time Installed Measures Additional Training Same cost as initial training. 1% Per Session Monitoring and Ifthe building requires an Energy Information Network (EIN) for a whole Annually Verification building, meter-based guarantee, then $2,750 per EIN for ongoing M &V. The EIN includes montioring 1 gas meter, 1 electric meter, and 1 outside air sensor. One time M &V is estimated at the end of the project and is included in the Commissioning cost. The annual costs is escalated annually according to the Denver/Boulder area CPI. Warranty Service Equipment warranties are provided by manufacturer's at no cost. However, One Time Ennovate does estimate 2% of Ennovate-ordered equipment to cover warranty labor costs. This estimate is added to Ennovate's direct cost line item. Maintenance on Ennovate does not require maintenance costs as part of its EPC project effort. N/A Installed Measures Page 30 of 30