HomeMy WebLinkAboutbocc.con.125.21 41T K I N Pitkin County
COUNT Procurement Cover Sheet
Please complete the Contract Cover Sheet when the contract/task order is complete and fully executed.
Return all Contract Cover Sheets and Contracts/Change Orders/Amendments/Task Orders to Procurement
Contract Information
Contract Number 125.21
Project Name Solar System Install at Emma Open Space Barn
Contractor Sunsense Solar
Budget Line Item 11836362.562000.10022 $
$Additional Budget Line $ _
Item(s) $ _
(Please fully allocate New Contract Total)
$
Procurement Method: Informal
Type: Construction
Contract Start Date 5/10/2021
Contract End Date 9/30/2021
Contract Type New Contract
Retainage No
If this is a new contractor, please request they complete and submit to Finance a New Vendor Request Form.
Contact Information: _
Department Open Space & Trails
County Representative Paul Holsinger County Representative (970) 581-3776
Phone
Provide a brief description of the contract:
Installation of solar power system at the Emma Open Space Barn
Contract Value Summary:
Original Contract Amount $ 31,145.00
Previous Change Order/Amendment Amount $This Change order/Amendment amount $New Contract Total $ 31,145.00
NOTE: Clerks Office will keep original documents in compliance with Colorado State Archives retainage
Contract#:NA Rev. 2018.10.10 btf
Budget Line Item#: 11836362.562000.10022
PITKIN COUNTY, COLORADO
INFORMAL PROCUREMENT MEMORANDUM
TO: File
FROM: Paul Holsinger, Agriculture and Conservation Easement Administrator
RE: Informal Procurement under $50,000
DATE: May 10, 2021
Description of Project: Pitkin County Open Space and Trails is installing solar on to the
agriculture barn at Emma Open Space. The projects helps to accomplish Pitkin County climate
goals.
Budgeted Amount: $55,000.00
On project list approved by BOCC: Yes
Contractors Contacted: Aspen Solar, Sol energy, and Sunsense Solar
Proposals Received:
Vendor Name Proposal Amount Timeline Other Information
Aspen Solar $42,998.00 adequate Sized for 12kw
Sol energy $33,396.00 adequate Sized for 13.8kw
Sunsense Solar $28,045.00 adequate Sized for 12kw
Firms chosen: Sunsense Solar, Sunsense had the lowest bid. Sol said they would plan on placing
4 more solar panels based on roof space and when this was addressed with Sunsense they said
they would cimmit to adding 4 panels if space allowed for an additional $3,100 which was still
making it the lowest install.
COUNTY REPRESENTATIVE:
5/10/2021
Date
SOLAR I DESIGN I BUILD
PHOTOVOLTAIC ENGINEERING, PROCUREMENT
AND CONSTRUCTION SERVICES AGREEMENT
This Photovoltaic Engineering, Procurement, and Construction Agreement ("Agreement') entered into
this 25th day of May 2021 (the "Effective Date") is made by and between
SUNSENSE INC., a Colorado corporation (hereinafter"Sunsense Solar or Sunsense") and PITKIN
COUNTY (hereinafter"Purchaser). Sunsense Solar and Purchaser
may be referred to individually as a "Party" or collectively as the "Parties".
ROLES AND RESPONSIBILITIES
EPC Contractor: Sunsense Solar
Contact: Justin Martinez— Project Manager
justin@sunsensesolar.com
(970) 963-1420
Purchaser: Pitkin County
Contact: Paul Holsinger—CE Administrator
Paul.holsinger@pitkincounty.com
(970) 581-3776
RECITALS
WHEREAS, Purchaser desires to engage Sunsense Solar to perform certain engineering,
procurement and construction services for a solar photovoltaic energy system comprising the Work
(hereinafter defined); and Sunsense Solar desires to perform the Work, in accordance with the terms and
conditions set forth below;
AGREEMENT
NOW THEREFORE, in consideration of the foregoing recitals (which hereby are made a part of
this Agreement) and the mutual covenants and promises contained herein, the Parties agree as follows:
1. PROJECT AND SCOPE OF WORK. The address of the project site is 100 Sopris Creek Rd
Basalt, CO 81621 (the "Project'). Sunsense Solar agrees to design and construct the
improvements (the "Work") specifically described on Exhibit A hereto (the "Scope of Work").
This Agreement, together with Sunsense Solar's Final Proposal to the Purchaser and any
drawings or ancillary project documents may be referred to herein collectively as the "Project
Documents".
2. PAYMENT. In exchange for the Work, Purchaser agrees to pay the amount determined in
accordance with the pricing and payment schedule set forth in Exhibit B (the "Pricing
Schedule"). Purchaser shall remit payments within thirty (30)days' receipt from Sunsense
Solar of a proper invoice for work completed through the date of the invoice in such form and
content as Purchaser shall reasonably require. The payments set forth in the Pricing Schedule
are referred to in aggregate as the "Contract Price".
3. NOTICE. Any notice required to be given hereunder shall be done in writing to the addresses
set out herein. All notices shall be deemed to be given and received upon the first to occur of
(a)actual receipt or(b) 3 days after deposit of such notice with the US Postal Service, certified
mail, return receipt requested in a properly addressed postage pre-paid envelope. Notice may
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be given by (a) personal or commercial delivery service or courier or(b) certified mail, return
receipt requested as noted above.
If to Sunsense Solar: If to Purchaser:
Scott Ely Paul Holsinger
Sunsense, Inc. Pitkin County
1629 Dolores Way Suite E 100 Sopris Creek Rd
Carbondale, CO 81623 Basalt, CO 81621
4. TITLE AND RISK OF LOSS.
a. Passage of Title. Right to use the material installed shall not pass to Purchaser until
final payment has been made to Sunsense Solar.
b. Risk of Loss. Sunsense Solar shall retain care, custody and control of the Work and all
materials, supplies, equipment and machinery related thereto (the "Materials") and bear
the risk of loss related to the Work and Materials until Final Completion. Upon Final
Completion, the risk of loss related to, and care, custody and control of, the Work and
Materials shall pass to Purchaser.
5. CHANGE ORDERS.
a. Modifications. The Contract Price, Scope of Work or other terms of this Agreement may
not be modified, except pursuant to a Change Order made pursuant to the procedures
set forth immediately below or other contract amendment made pursuant to Section 40;
provided however, that Sunsense Solar shall be compensated for all work that is
reasonably necessary or incidental to the Scope of Work.
b. Change Order Procedures. The requesting party shall submit a written proposal and an
estimate detailing any impact upon the Contract Price. The receiving party shall use
commercially reasonable efforts to respond to the written proposal within two (2)
Business Days after receipt thereof. The Parties shall not unreasonably withhold consent
to a Change Order.
c. Agreement by the Parties. If the Parties reach agreement with respect to an
adjustment in the Contract Price, the Parties shall execute a Change Order itemizing and
authorizing such adjustments no later than two (2) Business Days thereafter. If executed
by both Parties, such proposal shall constitute a Change Order. The adjustments
reflected in a Change Order shall be binding on the Parties. If the Parties are unable to
agree upon the terms of a Change Order, then either Party may submit the matter to
dispute resolution proceedings pursuant to Section 34.
6. SUBCONTRACTORS. Sunsense Solar may subcontract any portion of the Work at its sole
discretion, but such subcontracting shall not relieve Sunsense Solar of any obligations
hereunder.
7. ASBESTOS AND HAZARDOUS MATERIALS. This Agreement does not contemplate any
work, removal, testing, or inspection relating to asbestos or other hazardous materials.
Sunsense Solar shall not be responsible if, in the course of the Work, asbestos or hazardous
materials are uncovered, and Sunsense Solar shall have the right to halt work immediately in
that event and until Purchaser has corrected the condition.
8. COMPLIANCE WITH APPLICABLE LAWS; ETHICS. Sunsense Solar shall comply with all
applicable Federal, State, county, and local laws, including, without limitation, all statutes, rules,
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ordinances, orders, conventions, regulations and codes including any requirements of public or
governmental authorities, ("Laws' , including, without limitation, all applicable Laws regulating
environmental matters, hiring, wages, hours and conditions of employment, subcontractor
selection, discrimination, occupational health and safety, worker's compensation, social
security, Federal, State and local income tax withholding, unemployment insurance, the
Occupational Safety and Health Act, the Immigration Reform and Control Act of 1986, the
Americans with Disabilities Act, and any matters associated with the transport, import, export,
licensing, approval, or certification of the supplies for the Work. Except as otherwise provided
in this Agreement, Sunsense Solar shall have the obligation to procure necessary permits,
certificates, approvals, inspections, and licenses, when needed, in the performance of this
Agreement.
9. SAFETY. Sunsense Solar shall be solely responsible for safety of its operations and its
employees and shall take all reasonable safety precautions with respect to its Work. In addition
to its own standards, Sunsense Solar shall comply with all safety policies and procedures
initiated by Purchaser or any of Purchaser's contractors that also may be working onsite for the
safe, orderly and efficient conduct of all operations upon the project site and upon any other
Purchaser property. These policies and procedures also may relate to drugs, alcohol and
controlled substances. Sunsense Solar shall comply with all applicable Laws of any public
authority for the safety of persons or property, including, but not limited to, the Federal
Occupational Safety and Health Act("OSHA").
The parties place the highest importance and priority on health and safety for the Work
performed by Sunsense Solar. Sunsense Solar shall ensure that all of its employees and any
subcontractors are made aware of all environmental safety, fire, and health requirements and
regulations applicable to the Work. Sunsense Solar shall throughout the execution of the Work
be responsible for the safety and protection of the Work, the work of any of its subcontractors
on site, any other persons and all public or private property. Without limiting the foregoing,
choosing and implementing the appropriate OSHA approved method and plan of fall protection
is under the control and responsibility of Sunsense Solar. Further the provision of all fall
protection equipment is the responsibility of Sunsense Solar with respect to its Work.
Sunsense Solar and all of its subcontractors and their respective employees shall be subject to
reasonable rules and regulations promulgated for the project from time to time by Purchaser,
provided any such rules and regulations are for the orderly conduct of the project only and shall
not in any way be deemed to modify or reduce Sunsense Solar's safety requirements.
10. FACILITIES; TEMPORARY UTILITIES. Purchaser shall provide restroom facilities at or near
the project site, whether permanent or temporary unless otherwise negotiated with Sunsense
Solar. Purchaser shall coordinate with Sunsense Solar regarding any need for temporary
utilities such as power and water and shall provide these utilities during the period that
Sunsense Solar will be onsite performing the Work.
11. SOLE RESPONSIBILITY. Sunsense Solar has and retains sole responsibility over the manner
of work, employment, direction, assignment, compensation, and discharge of all of its personnel
performing the Work. Allowing use of any equipment of Purchaser is hereby agreed between
the parties will not be construed as evidence of control or retention of control, it being the intent
of the parties that Sunsense Solar is an independent contractor and who alone has the control
and right to control its activities including, but not limited to, safety.
12. PAYROLL OBLIGATIONS. Sunsense Solar is solely responsible for all matters relating to
compensation and benefits of all its personnel and any subcontractors who perform the Work.
This responsibility includes, but is not limited to: (1)timely payment of compensation and
benefits, including, but not limited to, applicable overtime, medical, and dental, and (2) all
matters relating to compliance with all employer obligations to withhold employee taxes, pay
employee and employer taxes, and file payroll tax returns and information returns under local,
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State, and Federal income tax laws, unemployment compensation insurance and state
disability insurance tax laws, and social security and Medicare tax laws, and all other payroll tax
laws or similar laws with respect to all Sunsense Solar's personnel performing the Work.
13. BACKGROUND CHECKS. Sunsense Solar shall implement commercially reasonable
measures to hire workers with appropriate backgrounds for the Work.
14. CONSENT FOR ACCESS. When entry onto property that is adjacent to (but not within)the
project site is necessary for Sunsense Solar's completion of the Work, Sunsense Solar shall
verify that appropriate consent has been obtained for Sunsense Solar to enter upon such
property prior to beginning any work on such property.
15. QUALIFIED PERSONNEL. Sunsense Solar shall at all times enforce discipline and good order
among Sunsense Solar's employees and any subcontractors and shall not employ for work,
any unfit person or anyone not skilled in the task assigned. If Purchaser requests Sunsense
Solar to remove any person provided by Sunsense Solar to perform the work on Purchaser's
premises,-Sunsense Solar shall immediately comply with such request. Such person shall leave
Purchaser's premises promptly and Sunsense Solar shall bar such person from re-entry on
Purchaser's premises without Purchaser's consent.
16. BUSINESS CONDUCT. Sunsense Solar project manager, supervisor or foreman shall report
to Purchaser prior to commencing any Work on the project and report again prior to
commencing any Work after any absence of more than five (5)calendar days from the project
in order to advise Purchaser of the particular phase of Work Sunsense Solar is about to
perform. Sunsense Solar's project supervisor or foreman shall attend meetings as scheduled
by Purchaser for the purpose of scheduling and coordinating all activities on the project,
discussing or implementing safety programs, and any other lawful purposes.
17. ONSITE COORDINATION. Sunsense Solar will be responsible for meeting all necessary
onsite coordination requirements with Purchaser and Purchaser's contractors that also may be
working onsite concurrently. Details as to these specific requirements, relating to parking, use
of shared equipment, locations where Sunsense Solar may use for laydown and staging of its
supplies, materials, and equipment, etc. will be determined during a coordination meeting or
meetings to occur prior to commencement of the Work. At this meeting, the parties will appoint
and identify authorizing representatives and delegates to facilitate the coordination between the
parties throughout the construction period.
18. CORRECTIVE OR REMEDIAL WORK. Sunsense Solar shall promptly perform all corrective
or remedial work(including, without limitation, repair or replacement of any work damaged
thereby) required by Purchaser in order to make the Work conform to the requirements of the
Agreement and any warranties and guarantees, and shall execute and deliver to Purchaser
such other and further documents as are reasonably requested by Purchaser to further
evidence such conformance.
19. RELATIONSHIP OF PARTIES. Purchaser and Sunsense Solar are independent parties and
nothing in the Agreement will make either party the employee, agent, or legal representative of
the other for any purpose. The Agreement does not grant either party any authority to assume
or to create any obligation on behalf of or in the name of the other. Sunsense Solar will be
solely responsible for rights, liabilities, obligations, and all employment and income taxes,
insurance premiums, charges, and other expenses it incurs in connection with its performance
of the Agreement. All employees and agents of Sunsense Solar or its respective
subcontractors are employees or agents solely of Sunsense Solar or such subcontractors, and
not of Purchaser, and are not entitled to employee benefits or other rights accorded to
Purchaser's employees. Purchaser is not responsible for any obligation with respect to
employees or agents of Sunsense Solar or its subcontractors.
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20. INSURANCE. Sunsense Solar will meet the following minimum insurance requirements in
performing the Work under the Agreement. Purchaser shall be covered as an additional insured
under the Commercial General Liability coverage. No required coverage shall be terminated
without not-less-than 30 days prior written notice to Purchaser by the insurer. Sunsense Solar
shall not commence any work under the Agreement until all insurance requirements contained
have been complied with as outlined below, and until evidence of such compliance is
satisfactory to Purchaser as to form and content. Any and all insurance required by this
Agreement shall be maintained during the entire construction period, including any extensions
thereto, and until all Work has been completed to the satisfaction of Purchaser. Prior to
commencement of work Sunsense Solar shall deliver insurance certificates to Purchaser
evidence all required coverage.
a) COMMERCIAL GENERAL LIABILITY. $2,000,000 per Occurrence, General
Aggregate, Product and Completed Operations Aggregate, Personal &Advertising
Injury.
b) AUTOMOBILE LIBAILITY. $2,000,000 combined single limit covering property
damage and bodily injury.
c) WORKERS' COMPENSATION. $1,000,000 each accident, each employee, each
disease—policy limit or as required by local law or statute.
d) PROFESSIONAL LIABILITY. $2,000,000 each claim.
21. INSPECTIONS; NON-CONFORMING GOODS/SERVICES; AUDIT. Purchaser may inspect
Sunsense Solar's supplies, materials, equipment, and any of Purchaser's property related to
the Agreement. Purchaser's inspection of supplies, materials, and equipment prior to delivery
or within a reasonable time after delivery, does not constitute acceptance of any work-in-
process or finished goods.
22. WARRANTY. Sunsense Solar's Warranty is attached hereto as Exhibit C.
23. EXISTING VIOLATIONS AND CONDITIONS; UNFORESEEN CONDITIONS. Sunsense Solar
is not responsible for any existing violations of applicable building regulations, codes,
ordinances, or laws, whether cited by the appropriate authority or not. Sunsense Solar is not
responsible for any abnormal or unusual preexisting conditions. Additionally, Sunsense Solar
shall not be held responsible for(i) any unforeseen conditions that may result in additional
costs in order to perform the Work, or(ii) conditions caused by other contractors of Purchaser
whose actions may result in changing the existing or represented conditions under which
Sunsense Solar is to perform the Work. In this regard, PURCHASER SHALL INDEMNIFY AND
HOLD SUNSENSE SOLAR HARMLESS FROM AND AGAINST ALL LIABILITIES, DAMAGES,
CLAIMS, DAMAGES, DEMANDS, ACTIONS (LEGAL OR EQUITABLE), AND COSTS AND
EXPENSES COLLECTIVELY"CLAIMS", INCLUDING WITHOUT LIMITATION ATTORNEY'S
FEES, OF ANY KIND OR NATURE, TO THE EXTENT SUCH CLAIMS ARE DUE TO
NEGLIGENT ACTS OR OMISSIONS OR WILLFUL MISCONDUCT BY PURCHASER,
PURCHASER'S CONTRACTORS OR THEIR SUBCONTRACTORS, AS IT RELATES TO
ONSITE ACTIVITIES THAT AFFECT SUNSENSE SOLAR'S PERFORMANCE UNDER THE
AGREEMENT.
24. UTILITIES. The Purchaser is responsible for water, gas, sewer, and electric utilities, from the
appropriate agency to the metering device, unless otherwise agreed to in writing. The Contract
Price does not include an electrical service amperage upgrade ("heavy up")or the installation of
any electrical sub-panel to the existing panel, either of which shall be charged out separately as
provided under"Extra Work."
25. DELAYS, FORCE MAJEURE. Sunsense Solar agrees to start the work no later than 30 days'
after the conditions precedent set forth in Exhibit B have been satisfied and diligently pursue
the Work through to completion, but shall not be responsible for delays for any of the following
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reasons: failure of the issuance of all necessary building permits within a reasonable length of
time (except to the extent such delay is due to Sunsense Solar's delay in applying for such
permits), funding of loans, disbursement of funds into funding control or escrow, acts of neglect
or omission of Purchaser or Purchaser's employees or Purchaser's agent, acts of God, stormy
or inclement weather, strikes, fires, embargoes, inability to obtain power, lockouts, boycotts, or
other labor union activities, extra work ordered by Purchaser, acts of public enemy, riots or civil
commotion, pandemics or epidemics, inability to secure material through regular recognized
channels, imposition of government priority or allocation of materials, failure of Purchaser to
make payments when due, delays caused by inspection or changes ordered by the inspectors
of authorized governmental bodies (which delays are not due to Sunsense Solar's work, action,
or inaction), or for acts of independent contractors, or holidays, or any set of circumstances that
renders a project site unsafe, or other causes beyond Sunsense Solar's reasonable control
(collectively, "Beyond Control Causes"). If Sunsense Solar fails to attain final completion on
or before the agreed date and Sunsense Solar believes such failure is due to a Beyond Control
Cause and the parties cannot agree on adjusted final completion date, the Parties (or either of
them) may submit the matter to mediation, then failing settlement, to arbitration, for resolution of
the final completion date and damages, if any, that either party may establish as a result of any
such delay.
26. DAMAGE OR DESTRUCTION. If the Work or any portion of it is destroyed or damaged by fire,
storm, flood, landslide, earthquake, theft, or other disaster or accidents and Purchaser elects to
rebuild, any work done by Sunsense Solar to rebuild, etc., shall be paid for by Purchaser
through a Change Order to the Agreement and dealt with as herein provided for under"Extra
Work."
27. PURCHASER'S PROPERTY. It is the Purchaser's responsibility to remove or protect any
personal property and Sunsense Solar will not be held responsible for damages or loss of said
items.
28. EASEMENTS OR OTHER RESTRICTIONS. Prior to construction, the Purchaser is to give
Sunsense Solar a copy of any easements, restrictions, or rights of way relating to Sunsense
Solar's Work.
29. PERMITS. Upon execution of this Agreement, Sunsense Solar will apply for, then obtain and
pay for all required permits related to the Work. Purchaser will pay any other assessments and
charges required by public bodies and utilities.
30. TERMINATION FOR BREACH OR NONPERFORMANCE.
Purchaser may terminate all or any part of the agreement, upon 30 days' written notice to
Sunsense Solar, if:
a) Sunsense Solar makes a general assignment for the benefit of its creditors, is generally
unable to pay its debts as they become due, commences or files a voluntary case or
petition in bankruptcy, is adjudicated as bankrupt or insolvent or files any petition or
answer seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under the present or future federal, state or other
bankruptcy or insolvency statute or law, or seeks, consents to or acquiesces in the
appointment of any bankruptcy or insolvency trustee, receiver or liquidator of Sunsense
Solar or of all or any substantial part of its properties;
b) Any action, case or proceeding is commenced against Sunsense Solar seeking (i) any
reorganization, arrangement, composition, readjustment, liquidation, dissolution or
similar relief under any insolvency laws or(ii)the appointment, without the consent or
acquiescence of Sunsense Solar, of any trustee, receiver or liquidator of Sunsense
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Solar or of all or substantially all of its properties, which proceeding or appointment
shall continue un-stayed for a period of one-hundred-twenty(120)days;
c) Sunsense Solar fails to maintain the insurance coverage required under this
Agreement;
d) Sunsense Solar abandons the Work; or
e) Sunsense Solar is in material breach of its obligations under this Agreement and
Sunsense Solar fails to cure such defect, and give Purchaser written notice and proof
thereof within thirty (30) days of Sunsense Solar's receipt of written notice from
Purchaser.
Sunsense Solar may terminate all or any part of the agreement, upon written notice to
Purchaser, if:
a) Purchaser fails to pay any payment required to be made pursuant to this Agreement,
which is not the subject of a good faith dispute, and such failure continues for thirty (30)
days after receipt of written notice of such non-payment from Sunsense Solar;
b) Purchaser makes a general assignment for the benefit of its creditors, is generally
unable to pay its debts as they become due, commenced or filed a voluntary case or
petition in bankruptcy, is adjudicated as bankrupt or insolvent, files any petition or
answer seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under the present or future federal, state or other
bankruptcy or insolvency statute or law, or seeks, consents to or acquiesces in the
appointment of any bankruptcy or insolvency trustee, receiver or liquidator of Purchaser
or of all or any substantial part of its properties;
c) Any action, case or proceeding is commenced against Purchaser seeking (i) any
reorganization, arrangement, composition, readjustment, liquidation, dissolution or
similar relief under any insolvency laws or(ii)the appointment, without the consent or
acquiescence of Purchaser, of any trustee, receiver or liquidator of Purchaser or of all
or substantially all of its properties, which proceeding or appointment shall continue
unstayed for a period of one-hundred-twenty(120)days; or
d) Purchaser is in material breach of its obligations under this Agreement and Purchaser
fails to cure such the Defect and give Sunsense Solar written notice and proof thereof
within thirty (30)days' of Purchaser's receipt of written notice from Sunsense Solar.
31. CONDITIONS FOR FINAL PAYMENT. In addition to and without limitation upon any other
requirements of this Agreement pertaining to payment for Work performed, Sunsense Solar's
right to final payment shall not arise unless and until the following conditions precedent have
been satisfied: (1) completion of all "punch-list"work and other work required to bring the Work
into compliance with the Agreement unless work or other obligations to be performed by
Purchaser or Purchaser's contractor(s) has delayed or postponed Sunsense Solar's ability to
fully engage or energize the system (i.e., complete the AC interconnection); (2)delivery to
Purchaser of all manuals, all guarantees and warranties including those for material and
equipment as required by the Agreement, and any documents required by Federal, State or
local statutes; (3)furnishing to Purchaser satisfactory evidence by Sunsense Solar that all labor
equipment and material obligations and any other indebtedness incurred by Sunsense Solar in
connection with its Work have been paid in full (including all-bills-paid affidavits in such form
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and content as may be reasonably required by Purchaser) and (4)furnishing to Purchaser the
written consent of surety, if any, to final payment.
32. FINAL COMPLETION; PURCHASER ACCEPTANCE. When Sunsense Solar believes that it
has achieved "Final Completion" by satisfying the conditions under Section 31 above, it shall
deliver to Purchaser a signed Final Completion Certificate in the form attached hereto as
Exhibit D. Such certificate shall include sufficient detail to enable Purchaser to determine that
Sunsense Solar has achieved Final Completion. Then Purchaser shall within fourteen (14)
Business Days following receipt of such certificate either: (a) countersign the Final Completion
Certificate, indicating its acceptance of the achievement of such completion; or(b) if reasonable
cause exists for doing so, notify Sunsense Solar in writing that such completion has not been
achieved, stating in detail the reasons therefore. If Purchaser fails to deliver timely notice
under the preceding clause (b), Purchaser shall be deemed to have accepted such completion.
If Purchaser delivers timely notice under the preceding clause (b), Sunsense Solar shall
promptly take such action, including the performance of additional work to achieve such
completion, and upon completion of such actions shall issue to Purchaser another notice
pursuant to this Section 32. Such procedure shall be repeated as necessary until completion
has been achieved. In the event that Purchaser and Sunsense Solar are unable to agree
regarding the existence or correction of any deficiencies identified by Purchaser, the disputed
matter or matters shall be resolved pursuant to the dispute resolution procedures set forth in
Section 34.
33. ENTIRE AGREEMENT. This Agreement, including incorporated documents, constitutes the
entire Agreement of the parties. Any and all other prior or contemporaneous agreements,
whether written or oral, are merged herein, and are provided in written form as part of the
Agreement, specifically as they relate to flow down responsibilities and scope of work
requirements for Sunsense Solar. No other oral or written agreements between Sunsense
Solar and Purchaser, regarding work to be performed exist.
34. DISPUTE RESOLUTION.
a) Internal Escalation. Prior to the initiation of formal proceedings, the Parties shall first
attempt to resolve their dispute informally in accordance with this subparagraph a).
Upon the written request of a Party, each Party shall appoint a designated
representative whose task it shall be to meet for the purpose of endeavoring to resolve
such dispute. The designated representatives shall meet as often as the Parties
reasonably deem necessary in order to gather and furnish to the other all information
with respect to the matter in issue that the Parties believe to be reasonably appropriate
and germane in connection with its resolution. The representatives shall discuss the
dispute (involving senior-level executives at each Party as deemed appropriate)and
attempt to resolve the Dispute without the necessity of any formal proceeding. During
the course of discussion, all reasonable requests made by one Party to the other Party
for non-privileged information, reasonably related to the dispute and this Agreement,
shall be honored in order that each of the Parties may be fully advised of the other's
position with respect to the dispute. The specific format for the discussions shall be left
to the discretion of the designated representatives. If the matter has not been resolved
within thirty (30) Days from the referral of the dispute to senior executives, or if no
meeting of senior executives has taken place within fifteen (15) Days after such
referral, either Party may initiate mediation as provided hereinafter. If a Party intends
to be accompanied at a meeting by an attorney, the other Party shall be given at least
three (3) Business Days' notice of such intention and may also be accompanied by an
attorney. Each Party shall bear its own costs for this dispute resolution phase.
b) Technical Disputes. If any dispute involves a technical issue, question or need for
clarification that cannot be resolved by higher levels of management of the Parties
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pursuant to subparagraph a) above, such as an engineering or design issue or a
construction warranty issue (a "Technical Dispute"), then the Technical Dispute shall
be resolved by an independent technical expert. If the Parties cannot agree upon a
technical expert, then the matter will be referred to arbitration in accordance with
subparagraph d) below. The disputing Party shall deliver to the technical expert and to
the other Party a written notice stating: (1)the general nature of each Technical
Dispute, (2)the amount and extent of such Technical Dispute, and (3) supporting data
for such Technical Dispute. The opposing Party shall submit a written response to the
disputing Party and the technical expert within ten (10) Business Days after receipt of
the disputing Party's submittal. The technical expert may request reasonable additional
information from each Party, which the Party shall provide simultaneously to the
technical expert and the other Party. The decision of the technical expert shall be
provided in writing to each of the Parties and shall be binding on the Parties. The
technical expert shall determine such Technical Dispute as soon as practicable after
the submission of the disputing Party's notice. Notwithstanding anything to the contrary
contained or implied herein, if the technical expert has not delivered a decision in
writing to the Parties within thirty (30) Business Days after the date of such notice,
either Party may submit the Technical Dispute to arbitration pursuant to subparagraph
d) below. The Parties shall share equally the cost of, and expenses incurred by, the
technical expert in connection with the services provided by the technical expert as
described in this subparagraph b).
c) Mediation. In the event that any dispute arising out of or relating to this Agreement is
not resolved in accordance with the procedures set forth in subparagraphs a) or b)
above, such dispute shall be submitted to mediation by an independent mediator that is
mutually approved by the Parties.
d) Mandatory Arbitration. All claims, disputes and other matters in question not
resolved by subparagraphs a), b) or c)above, shall be decided by arbitration by the
American Arbitration Association or by a mutually agreed upon arbitrator and be
conducted in accordance with the American Arbitration Association Construction
Industry Arbitration Rules then obtaining or a mutually agreed upon set of arbitration
rules. This agreement to arbitrate and any other agreement or consent to arbitrate
entered into in accordance herewith shall be specifically enforceable under the
prevailing arbitration law of any court having jurisdiction. Notice of demand for
arbitration must be filed in writing with the other Party to the Agreement and with the
AAA or other mutually agreed to arbitrator. The demand must be made within a
reasonable time after the dispute has arisen. The award of the arbitrator(s)will be final
and non-appealable. The arbitrator(s) shall have no authority to make any award
prohibited by this Agreement. The award of the arbitrator(s)shall be specifically
enforceable in a court of competent jurisdiction. Each Party shall bear its own costs for
this dispute resolution phase.
e) Governing Law, and Other Legal Considerations.
i. Governing Law. This Agreement shall in all respects be interpreted under, and
governed by, the laws of the State of Colorado including as to validity,
interpretation and effect, without giving effect to conflicts of laws principles.
35. ASSIGNMENT.
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a) Sunsense may assign this agreement in connection with a Change in Control. A
"Change in Control" means the change in ownership of 50% or more of the voting
securities of Sunsense or a sale of substantially all of the assets of Sunsense.
b) By Purchaser. Purchaser may not assign its rights or delegate its obligations
hereunder without prior written consent of Sunsense Solar, which consent may not be
unreasonably withheld; provided, however, Purchaser is permitted to: (i) make an
outright or collateral assignment of its rights and interests under this Agreement to its
financing parties; and (ii)assign its right, title and interest in this Agreement to an
Affiliate or to purchaser of the Project, in each case, without obtaining prior written
consent of Sunsense Solar.
c) Any assignment not in conformity with this Section 35 shall be null and void.
36. SUCCESSORS AND ASSIGNS. Subject to Section 35 above, Purchaser and Sunsense Solar,
and their respective partners, assigns, successors, subcontractors, executors, officers, agents,
employees, representatives, and administrators are hereby bound to the terms and conditions
of this Agreement.
37. SUNSENSE'S LIEN RIGHTS. Sunsense Solar, as contractor for the Project, will have certain
lien rights under Colorado law. Purchaser shall furnish to Sunsense Solar on request any
information relevant to Sunsense Solar's evaluation, notice, or enforcement of its lien rights. If
any claim or dispute relates to or is the subject of a lien, the party asserting such claim or
dispute may proceed in accordance with applicable law to comply with the lien notice or filing
deadlines prior to resolution of the claim by arbitration.
38. NO REPRESENTATIONS. SUNSENSE SOLAR MAKES NO REPRESENTATIONS AS TO
THE ELIGIBILITY OF THE PROJECT OR THE WORK FOR; OR THE AVAILABILITY OF, ANY
TAX CREDITS, REBATES OR OTHER ECONOMIC INCENTIVES PROVIDED BY LOCAL,
STATE, OR FEDERAL GOVERNMENT OR BY THE UTILITY PROVIDER.
39. AUTHORITY. The individuals executing this Agreement on behalf of the respective parties
below represent to each other that all appropriate and necessary action has been taken to
authorize the individual who is executing this Agreement to do so for and on behalf of the party
for which his or her signature appears, that there are no other parties or entities required to
execute this Agreement in order for the same to be an authorized and binding agreement on
the other party for whom the individual is signing this Agreement and that each individual
affixing his or her signature hereto is authorized to do so, and such authorization is valid and
effective on the date hereof.
40. AMENDMENTS AND WAIVERS. Any term of this Agreement may be amended only with the
written consent of Sunsense Solar and Purchaser, in the form of a Change Order or contract
amendment signed by both Parties. A delay or omission by either Party hereto to exercise any
right or power under this Agreement shall not be construed to be a waiver thereof. A waiver by
either of the Parties hereto of any of the covenants to be performed by the other or any breach
thereof shall not be construed to be a waiver of any succeeding breach thereof or of any other
covenant herein contained. All waivers shall be in writing and signed by the Party waiving its
rights.
41. SEVERABILITY. In the event of a term, condition, or provision of this Agreement is determined
to be invalid, illegal, void, unenforceable, or unlawful by a court of competent jurisdiction, then
that term, condition, or provision, shall be deleted and the remainder of the Agreement shall
remain in full force and effect as if such invalid, illegal, void, unenforceable or unlawful provision
had never been contained herein.
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42. COUNTERPARTS; FAXED SIGNATURES. This Agreement may be executed in duplicate
counterparts, each of which shall be deemed an original and both of which together shall
constitute one and the same instrument. Counterparts may be executed in original, faxed or
scanned form, and the Parties hereby adopt as original any signatures received via facsimile or
email transmission of scanned copies.
[Signature page follows]
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.
PURCHASER:
Pitkin County
By:
Name: Paul Holsinger
Title: Pitkin County Ag and CE Administrator
SUNSENSE INC.
A Colorado Corporation
By:
Name: Scott Ely
Title: President
List of Exhibits
Exhibit A. SCOPE OF WORK, ASSUMPTIONS, AND EXCLUSIONS
Exhibit B. PAYMENT AND PRICING SCHEDULE
Exhibit C. WARRANTY
Exhibit D. FORM OF CERTIFICATE OF FINAL COMPLETION
*Please reference attached proposal for further information on the Scope of Work
*Sunsense has assumed that 40 340 watt PV modules will be used rather than 36
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EXHIBIT A
SCOPE OF WORK, ASSUMPTIONS, AND EXCLUSIONS
Scope of Work
• All major project components included.
• Required AHJ electrical/building permits.
• Project Management/oversight.
• AC and utility interconnection.
• All associated AC & DC BOS.
• Administration.
General Assumptions
• Sunsense is providing this Preliminary Estimate prior to final engineering and is aware
that system layout and electrical engineering may be amended.
• Construction period is still to be determined but is assumed to be during the second or
third quarter of 2021 pending timely delivery of materials and avoidance of obstacles
beyond the control of Sunsense.
• Engineer on record to determine structural load capacity of roof and to provide approval
for said loads.
• Production Estimates are based on National Renewable Energy Laboratory 30 Year
Weather Data and are not guaranteed.
• Rate structure analysis is based on the current Holy Cross Energy rate structure and
energy consumption is based on the most current rolling 12 months. Sunsense is aware
that consumption will likely increase due to the new building addition and is flexible on
final system size and design.
• It is assumed that the designed system will not produce more than 120% of the building.
• Financial Analysis, Rebates, and Tax Benefits are for information purposes only and not
guaranteed. Please consult with your advisor for discussion of eligibility.
• Layout to be approved by Pitkin County AHJ and or Fire Department.
• Exact electrical Interconnection strategy TBD but 208 voltage is known.
• Sunsense has quoted what is currently believed to be the best value tier 1 module, quality
racking, and reputable inverter manufacturer,but we are open to discuss alternative
products.
• After thorough review Sunsense feels that this system design optimizes the available
south facing roof space.
• Should space allow and AHJ approve 4 additional 60 cell modules price will only
increase by a maximum of$2.29 a watt or approximately $3,100
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Inclusions
• All applicable rental equipment is included in this quote.
• Sunsense staff will cover Project Management, Site Supervision, and AC Electrician.
• Sunsense is to provide electrical PV drawings.
• Sunsense is to provide all documentation relating to interconnection agreement with
utility and permitting.
• Estimate based on Hanwha Enphase AC Modules,but SolarEdge Inverters are in
attachments of proposal for second option or change in inverter strategy.
Exclusions
• Installation of all mechanical attachments if required (anchors) including attaching,
flashing, and waterproofing to be performed by roofer on record.
• Any associated snow removal. This pertains to any/all staging or access areas as well as
rooftops.
• Pre and Post Installation roof inspections will be conducted and recorded.
• Design and Installation costs based on current construction of building. Changes to roof
layout or added obstructions could warrant changes to this proposal.
• Exact AC Interconnection strategy TBD following final engineering.
• Monitoring strategy TBD. IT technician will need to run ethernet to inverter.
• Sales and Use Tax is excluded.
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EXHIBIT B
PAYMENT AND PRICING SCHEDULE
• Purchaser shall remit payment for the Project in the amount of 5_31,145 (the "Contract
Amount'). The Contract Amount shall be invoiced on a milestone billing basis. Purchaser shall
remit payment within 30 days' receipt of a proper invoice from Sunsense Solar.
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EXHIBIT C
SOLAR I DESIGN I BUILD
5-Year Limited Workmanship Warranty
Sunsense stands behind this warranty policy and will make every effort to work with our
clients to provide the highest quality service under fair and reasonable terms.
1.Limited Warranty Coverage:
Sunsense Inc.warrants to the purchaser and all transferees of the structures to which products/equipment
are installed and/or repairs are made as follows:
•Product Installation:Sunsense Inc.warrants the installation of products to be free from defects in
workmanship from the date of Final Inspection of the product/equipment for a period of 5 years of
normal use.This workmanship warranty does not include any damages or defects in the product except
to the extent solely caused due to installation of the product by Sunsense Inc.authorized employees.
•Repairs:Sunsense Inc.warrants only the repairs made to be free from defects in workmanship from the
date of the completed repair for a period of 1 year of normal use.This workmanship warranty does not
include any damages or defects in the products/equipment used to make the repair except to the extent
solely caused due to installation of the product by Sunsense Inc.authorized employees.
Sunsense Inc.will have the right to inspect the areas at issue to determine the cause of the alleged defects.
If the defects are determined to be within the scope of the workmanship warranty,Sunsense Inc.will make
the necessary repairs at Sunsense Inc.expense.Manufacturers equipment warranty applies to all supplied
equipment.Sunsense Inc.specifically does not warrant the installed products.
Sunsense Inc.repair of the defect SHALL BE THE SOLE EXCLUSIVE REMEDY available to the covered
person or entity with respect to any defect.Sunsense Inc.will not refund or pay any costs in connection
with repairs made by anyone other than Sunsense Inc.
2.Conditions of Warranty:Sunsense Inc.liability to the covered person or entity shall be subject to the following
terms and conditions:
a) The claimant must provide proof that they are the covered person/entity.
b) The covered person/entity must provide written notice to Sunsense Inc.within 10 days after discovery
of any claimed defect covered by this warranty and before beginning any permanent repair.The notice
must describe the location and details of the defect and such information as is necessary for Sunsense
Inc.to investigate the claim.
c) Upon discovery of a possible defect,the covered person/entity must immediately and at the covered
person/entity's expense provide for protection of all property that could be affected until the defect is
remedied.
3.Exclusions:This Warranty does not cover damage or defects resulting from or in any way attributable to(a)
neglect,(b)misuse,(c)abuse,(d)repair or alteration made by anyone other than Sunsense Inc.(e)settlement or
structural movement and/or movement of materials to which installed products are attached,(f)damage from
incorrect design of the structure,(g)failure to follow the instructions(h)acts of God including,but not limited to,
hurricanes,tornados,floods,earthquakes,severe weather or natural phenomena,(including,but not limited to,
unusual climate conditions),(i)lack of proper maintenance,(j)any cause other than workmanship defects attributable
to Sunsense Inc. Sunsense does not guarantee a specific amount of energy production.Estimates are based on
historical average weather data.
4.Disclaimer:The statements in this Warranty constitute the only warranty extended by Sunsense Inc.for its
workmanship.NO OTHER WARRANTY SHALL BE MADE BY OR ON BEHALF OF Sunsense Inc.
Address Under Warranty: Start Date:
Sunsense Inc.Authorized Rep(Print Name):
Title: Authorized Signature:
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EXHIBIT D
FORM OF CERTIFICATE OF FINAL COMPLETION
This Final Completion Certificate ("Certificate") is provided in accordance with the Photovoltaic
Engineering, Procurement and Construction Agreement by and between Pitkin County
("Purchaser")and Sunsense Inc. ("Sunsense Solar")and dated ,_20 ("the
Agreement").
Capitalized terms used in this Certificate and not otherwise defined herein have the meanings specified in
the Agreement.
In accordance with Sections 31 and 32 of the Agreement, Sunsense Solar hereby certifies that all of the
requirements to achieve Final Completion as defined in Section 31 have been achieved (with the
exception of Purchaser's acceptance by signature to this certificate).
Attached hereto is a report provided in accordance with Section 32.
Executed this day of , 20_
SUNSENSE INC.
By:
Name:
Title:
ACCEPTANCE:
In accordance with Section 32, Purchaser, on this day of , 20 , hereby
indicates its acceptance of the achievement of Final Completion.
PURCHASER:
By:
Name:
Title:
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