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HomeMy WebLinkAboutresolution.council.068-08RESOLUTION # (~~ (Series of 2008) A RESOLUTION APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN, COLORADO, AND MCKINSTRY COMPANY SETTING FORTH THE TERMS AND CONDITIONS REGARDING TECHNICAL ENERGY AUDITS ON TEN (10) CITY BUILDINGS AND FACILITIES AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT WHEREAS, there has been submitted to the City Council a contract between the City of Aspen, Colorado, and McKinstry Company, a copy of which contract is annexed hereto and made a part thereof. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1 That the City Council of the City of Aspen hereby approves that contract between the City of Aspen, Colorado, and McKinstry Company regarding technical energy audits often city of Aspen facilities to improve performance, reduce energy use, reduce operating costs, and reduce carbon emissions, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager of the City of Aspen to execute said contract on behalf of the City of Aspen. , Dated: D '~e~~~~7~~~ Michael C. Ireland, I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held July 28,2008. Kathryn Koch, City Clerk City of Aspen Contract forTechnical Energy Audit and Project Proposal with Inc. 1. PARTIES This Contract is entered into by and between McKinstry Essention, Ina (hereinafter called "Contractor"), and City of Aspen (hereinafter called the "City"). 2. EFFECTNE DATE AND NOTICE OF NONLIABILITY. This Contract shall not be effective or enforceable until it is approved and signed by City of Aspen (hereinafter called the "Effective Date"), but shall be effective and enforceable thereafter in accordance with its provisions. The City 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. 3. RECITALS A. Authority, Appropriation, Aud 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 agencies. B. Purpose and State's Role The Governor's Energy Office (GEO) created this Contract to obtain a technical energy audit of the City's 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. 4. 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 incorpomted pursuant to State 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 sepazately 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 City and Contractor. 5. TERM and EARLY TERMINATION A. Intial Term -Work Commencement The initial term of this Contract shall commence on the later of either the Effective Date or 8-18-2008 and terminate on 8-18-2009 or upon completion of Work, unless sooner terminated as provided for below, herein. Performance of the Parties' respective obligations under this Contract shall begin as soon as practicable following commencement of the initial term. Page 1 of 13 B. Temporary Extension At its sole discretion, the City, upon written notice to Contractor, may unilaterally extend the term of this Contract for a period not to exceed two months if the Parties aze negotiating a replacement contract (and not merely seeking a term extension) at or neaz 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 City's approval and signature. C. Early Termination This Contract is subject to early temunation in accordance with the provisions of the Remedies section below herein. 6. STATEMENT OF WORK A. Work Contractor shall perform a technical energy audit and provide a proposal to the City in accordance with Exhibit A, attached hereto and incorporated by reference herein. The audit shall detemrine the feasibility and cost of implementing energy and water saving measures for the City, and based on such determination, for Contractor to propose a plan for implementing such measures through an Energy Perfomrance Contract. Thereafter, if the City, in its sole discretion, desires to accept Contractor's Technical Energy Audit and Project Proposal, which acceptance shall be made within 120 days of the City's receipt of such proposal in a form substantially similar to Exhibit B, attached hereto. The Parties may enter into a new contract, entitled "Energy Perfom~ance Contract", based on such proposal, the form of which shall be supplied by the City and shall comply with CRS §24-30-2001. The audit shall be performed at the location(s) listed in Exhibit C, attached hereto and incorporated by reference herein. B. Time of Performance The Work shall be completed during the initial term or any extension thereof. C. Goods and Services Contractor shall procure goods and services necessary to complete the Work provided for herein. D. Employees All persons employed hereunder shall be considered Contractor's or subcontractors' employee(s) for all purposes and shall not be employees of the City for any purpose. 7. PAYMENTS TO CONTRACTOR Contractor shall be compensated as follows: A. Basis and Maximum Amount Except as provided for below in subsections i. and ii., within 120 days after City's formal acceptance of the final Technical Energy Audit and Project Proposal Contract, City shall pay to Contractor a sum not to exceed $25,000.00 in accordance with the Cost and Pricing Elements presented in Exhibit D, attached hereto and incorporated for reference herein. The City shall not be liable to pay or reimburse Contractor for any performance hereunder prior to the Effective Date. i. Payment Through Performance Contract City shall have no duect payment obligations to the Contractor under this contract provided that Contractor and City execute an Energy Performance Contract within 1.26 t#ays after execution and issuance of the Notice of Acceptance (Exhibit B) of the final Technical Energy Audit and Project Proposal. However, the above stated cost of the completed audit shall be incorporated into Contractor's total project costs and paid through the Energy Performance Contract funding mechanisms. ii. Project With Insufficient Savings Should the Contractor determine at any time during the Technical Energy Audit that savings cannot be attained to meet City's terms as required by CRS §24-30-2001, the Technical Energy Audit shall be terminated by written notice by the Contractor to the City. In this event this Contract shall be terminated and the City shall not be liable to pay Contractor, in whole or part, the amount specified in Section 7A. B, Payment i. Method and Time Page 2 of 13 The Contractor shall submit an invoice to the City in the form and manner approved by the City. Contractor shall submit invoices within 60 days afer the end of the period for which payment is requested. The City shall make payment in full with respect to each invoice acceptable to it within 45 days of receipt thereof, afer which uncontested unpaid amounts shall bear interest at a rate of one percent per month. Interest shall not arise if a good faith dispute exists as to the City's obligation to pay all or a portion of an invoice. ii. Available Funds-Contingency-Remedies The City is prohibited by law from making fiscal commitments beyond the term of its current fiscal period. Therefore, Contractor's compensation is contingent upon the continuing availability of appropriations. Payments pursuant to this contract shall only be made from available funds encumbered for this Contract, and the City's liability for such payments shall be limited to the amount remaining of such encumbered funds. If funds are not appropriated, or otherwise become unavailable to fund this Contract, the City may immediately terminate the Contract in whole or in part without further liability in accordance with the Temunation for Cause subsection of the Remedies section of this Contract. All payments are subject to the general Remedies section of this Contract. iii. Return of Funds Any funds paid to Contractor hereunder which are not expended in connection herewith shall be refunded by Contractor within 15 days of termination hereof. Any funds not required to complete Contractor's obligations hereunder shall be de-obligated by the City. If Contractor receives overpayments, Contractor shall refund all excess funds to the City within 15 days of the later of a) the receipt of such funds, or b) 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 City. iv. Erroneous Payments-Remedies Payments made to Contractor in error for any reason, including, but not limited to overpayments or improper payments may, at the City's sole discretion, be recovered from Contractor by deduction from subsequent payment under this Contract or other contracts between the City and Contractor, or by other appropriate methods. 8. REPORTINGNOTIFICATION Reports and analysis required under this section shall be in accordance with procedures and in such form as prescribed by the City. A. Litigation Within 10 days after being served with any pleading in a legal action at a court or administrative City related to this Contract, Contractor shall notify the City of such action and deliver copies of such pleadings to the City's principal representative in accordance with the Notice section of this Contract. B. Remedies Contractor's failure to provide reports and notify the City in a timely manner in accordance with this section may result in the delay of payment of funds and/or termination under the Remedies section of this Contract. 9. CONTRACTOR RECORDS Contractor shall make, keep, maintain and allow inspection and monitoring of the following records: A. Maintenace 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 Page 3 of 13 B. Inspection Contractor shall permit the City to audit, inspect, examine, excerpt, copy and/or transcribe Contractor's records related to this Contract and for a period of three years following termination hereof or final payment hereunder, whichever is later, to assure compliance with the terms hereof or to evaluate Contractor's performance hereunder. C. Monitoring Contractor also shall pemmt the City-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. 10. CONFIDENTIAL INFORMATION-STATE RECORDS Contractor acknowledges that it may become privy to confidential information in connection with its performance hereunder, including, but not limited to state records, personnel records, and information conceming individuals. A. Confidentiality It shall be Contractor's responsibility to keep all City 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 City. Any request or demand for information in the possession of Contractor made by any third party shall be immediately forwarded to the City'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 aze 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 City. Contractor shall provide and maintain a secure environment that ensures confidentiality of all City 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 City. D. Disclosure-Liability Disclosure of City records or other confidential information for any reason maybe cause for legal action against Contractor or its agents by third parties, and defense of any such action shall be Contractor's sole responsibility. 11. 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 City's interests. Absent the City'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 City hereunder. Contractor shall comply with the provisions of CRS §§ 18-8-308 and 24- 18-101, et seq. 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, awazd, 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 awazd, to-wit: i. an employee, officer or agent; Page 4 of 13 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 City-Default If Contractor is uncertain whether the appeazance of a conflict of interest exists, Contractor shall submit to the City a disclosure statement setting forth the relevant details for the City's consideration. Failure to promptly submit a disclosure statement or to follow the City'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 City within 10 days of the City's written request therefore. 12. WARRANTIES A. Services and Goods During the term of this Contract, Contractor, as part of Contractor's obligations hereunder and at no additional cost to the City, 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 City. 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 aze 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 caze, skill and diligence provided by a professional person or company in performance of similaz Work. All services, consumables, products, and materials used in performance of the Services shall be of good quality and/or free from faults and defects. Contractor shall perform its obligations hereunder in the sequence and manner set forth in the Statement of Work section of this Contract. C. Inspection and Verification The City 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 City may require Contractor to promptly perform the Services or provide Goods again in conformity with Contract requirements, at no additional cost to the City. If such breaches cannot be, or are cured, the City 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 City. 13. REPRESENTATIONS A. Licenses, Permits, Etc. Contractor warrants that as of the Effective Date it has, and that all times during the term hereof it will have, at its sole expense, all licenses, certifications, approvals, insurance, permits, and other authorizations required by law to perform the Services and/or deliver the Goods specified herein. Additionally, all employees of Contractor performing services under this Contract shall hold the required licenses or certification, if any, to perform their duties. Contractor, if a foreign corporation or other entity transacting Page 5 of 13 business in the State of Colorado, further certifies that it currently has obtained and shall maintain any applicable certificate of authority to do business in the State of Colorado and has designated a registered agent in Colorado to accept service of process. Any revocation, withdrawal or non-renewal of licenses, certifications, approvals, insurance, permits or any such similar requirements necessary for Contractor to properly perform this Contract, shall be deemed to be a default by Contractor and grounds for termination for cause of this Contract. B. Legal Authority Contractor warrants that it possesses the legal authority to enter into this Contract and that it has taken all actions required by its procedures, by-laws, and/or applicable laws to exercise that authority, and to lawfully authorize its undersigned signatory to execute this Contract and to bind Contractor to its terms. The person signing and executing this Contract on behalf of Contractor hereby represents, warrants, and, guarantees that they have full authorization to do so. C. Tax Exempt Status The City 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 City. The City s FEIN # is 84-6000563 and its tax exempt # is 98- 04557-000. 14. 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. B. General Liability Commercial General Liability Insurance written on ISO occurrence form CG 00 Ol 10/93 or equivalent, covering premises operations, fire damage, independent contractors, products and completed operations, blanket contractual liability, personal injury, and advertising liability with minimum limits as follows: i. $1,000,000 each occurrence ii. $1,000,000 general aggregate; iii. $1,000,000 products and completed operations aggregate; and iv. $50,000 any one fire; and 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 famish to the City a certificate or other document satisfactory to the City 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 City 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 City. F. Cancellation The Insurance shall include provisions preventing cancellation or non-renewal without at least 45 days prior notice to the City 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 recovery, under Page 6 of 13 subrogation or otherwise, against the City, its agencies, institutions, organizations, officers, agents, employees, and volunteers. H. Satisfactory Insurers All insurance policies and coverages required hereunder shall be issued by reputable insurance companies satisfactory to the City. I. Certificates Contractor shall provide certificates evidencing insurance coverage required hereunder to the City within seven business days of the Effective Date or before commencement of Contractor's performance hereunder, whichever occurs fsst. No later than 15 days prior to the expiration date of any such coverage, Contractor shall deliver the City certificates of insurance evidencing renewals thereof. At any time during the term hereof, the City may request in writing, and the Contractor shall thereupon within 10 days supply to the City, evidence satisfactory to the City of compliance with the provisions of this section. J. Public Entity Notwithstanding subsection A, above, if Contractor is a "public entity" within the meaning of the Colorado Governmental Immunity Act, §CRS 24-10-101, et seq., as amended ("Act"), Contractor may at all times during the term of this Contract maintain only such liability insurance, by commercial policy or self- insurance, as is necessary to meet its liabilities under the Act. Upon request by the City, Contractor shall show proof of such insurance satisfactory to the City. 15. DEFAULT-BREACH A. Defined In addition to any breaches or defaults specified in other sections of this Contract 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 similaz legislation, by or against the Contractor, or the appointment of a receiver or similaz officer for the Contractor or any of its property, and such proceedings or appointments aze 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 temunation was received. 16. REMEDIES If Contractor is in default under any provision of this Contract the City 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 City may exercise any or all of the remedies available to it, in its sole discretion, concurrently or consecutively. A. Termination for Cause and/or Default If Contractor fails to perform any 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 City 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 City, 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 City of this right shall not be deemed a breach of its obligations hereunder. i. Method and Content The City shall give written notice of termination to Contractor in accordance with the notice provisions hereof specifying the effective date of termination and whether it affects all or a portion of this Contract. Page 7 of 13 ii. Obligations and Rights To the extent specified in the termination notice, Contractor shall not incur further obligations or render further performance hereunder past the effective date of such notice, and shall also terminate outstanding orders and subcontracts with third parties. However, Contractor shall complete and deliver to the City all Services and Goods not cancelled by the termination notice and may incur obligations as are necessary to do so within the Contract terms. In the sole discretion of the City, Contractor shall assign to the City 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 City has an interest. In the sole discretion of the City, Contractor shall assign to the City all of Contractor's right, title, and interest under such terminated orders or subcontracts. All fmished 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 City, be delivered by Contractor to the City and shall become the City's property. iii. Payments The City shall only reimburse Contractor for accepted Services and Goods received up to the date of termination and. If, after termination, it is determined that Contractor was not in default or that Contractor's action inaction was excusable, such termination shall be treated as a termination for convenience and the rights and obligations of the Parties shall be the same as if this Contract had been terminated for convenience, as described above herein. iv. Damages and Witholding Notwithstanding any other remedial action by the City, Contractor also shall remain liable to the City for any damages sustained by the City by virtue of any default under this section by Contractor and the City may withhold any payment to Contractor for the purpose of mitigating the City's damages, until such time as the exact amount of damages due to the City from Contractor is determined. Further, the City may withhold amounts due to Contractor as the City deems necessary to protect the City against loss because of outstanding liens or claims of former lien holders and to reimburse the City for the excess costs incurred in procuring similar goods or services. Contractor shall be liable for excess costs incurred by the City in procuring from third parties replacement Services or substitute Goods as cover. B. Remedies Not Involving Termination The City, its sole discretion may exercise the following remedies in addition to its other remedies, to-wit: i. Suspend Performance Suspend Contractor's perfom~ance pending necessary corrective action as specified by the City without the entitling Contractor to adjustment in price/cost or schedule; and/or ii. Withold Payment Withhold payment to the Contractor until corrections in services are satisfactorily completed and /or acceptable goods are provided; and/or ui. 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 City; provided any denial of payment must be reasonably related to the value of work or performance lost to the City; and/or iv. Removal Demand removal of Contractor's employees, agents, or subcontractors whom the City 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 City's best interest. 17. 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 maybe sent by e-mail to the e-mail addresses, if any, set forth below. Either Party may Page 8 of 13 from time to time designate by written notice substitute addresses or persons to whom such notices shall be sent. Unless otherwise provided herein, all notices shall be effective upon receipt. B. Representatives The individuals listed below are the principal representatives of the respective Parties. With respect to the City's representative(s), they have authority to inspect and reject goods and services, approve invoices for payment, and act otherwise for the City, 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: v. Ci vi. Contractor 18. 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 City, 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. 19. MISCELLANEOUS A. Binding Effect Unless otherwise provided herein, all provisions herein contained, including the benefits and burdens, shall extend to and be binding upon the Parties' respective heirs, legal representatives, successors, and assigns. B. Modification This Contract is subject to such modifications as maybe 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 Colorado State Law and State 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. Page 9 of 13 Jeff Rice Utilities Efficient Mana er Cit of As en Utilities De artment 130 S. Galena St. As en, CO 81611 'effr ci.as en.co.us Kristine Diehl Jos h Ha ar Account Executive Director of Finance 26719 Pleasant Park Rd. 5005 3` Avenue South Suite 220 Conifer, CO 80433 Seattle, WA 98134 kristined mckinst .tom ose hh mckinst .tom E. Counterparts This Contract maybe 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 City. Any attempt at assignment, transfer, subcontracting, or novations without such consent shall be void. All subcontracts/subcontractors approved by Contractor or the City shall be subject to the provisions hereof. Contractor shall be solely responsible for all aspects of subcontracting arrangements and performance. Contractor shall be solely responsible for all subcontracting arrangements, directions, and performance, including, but not limited to, delivery of Goods and performance of Services. Contractor shall require and ensure that each subcontractor assents in writing to all of the provisions hereof, including indemnifying the City as required under the Colorado Special Provisions, below herein. H. Third Party Beneficiaries Enforcement of this Contract and all rights and obligations hereunder aze 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 aze 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 City 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 City and County of Denver. 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 State drafted this Contract, the Parties agree that this Contract shall not be strictly construed against the drafrer. M. Order of Precedence The provisions of this Contract shall govern the relationship of the City 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: i. Exhibit A, then ii. Exhibit B, then iii. Exhibit C, then iv. Exhibit D. Page 10 of 13 20. COLORADO SPECIAL PROVISIONS The Special Provisions apply to all Contracts except where noted in italics. 20.2. F[1ND AVAILABILITY. CRS 24-30-202(5.5). Financial obligations of the City 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 City, 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. (Applicable Only to Intergovernmental Contracts) No term or condition of this Contract shall be construed or interpreted as 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., or the Federal Tort Claims Act, 28 U.S.C. 2671 et seq., as applicable, as now or hereafrer amended. 20.4. INDEPENDENT CONTRACTOR 4 CCR 801-2. Contmctor 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 City. Contractor shall pay when due all required employment taxes and income taxes and local head taxes on any monies paid by the City 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 City does not pay for or otherwise provide such coverage. Contractor shall have no authorization, express or implied, to bind the City 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 City) 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 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 enforoeable 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 hereafrer be established. 20.7, [Not Applicable to Intergovernmental Contracts] VENDOR OFFSET. CRS 24-30-202 (1) and 24- 30-202.4. The State Controller may withhold payment of certain debts owed to State agencies under the vendor offset intercept system for: (a) unpaid child support debt or child support arreazages; (b) unpaid balances of tax, accrued interest, or other charges specified in Article 21, Title 39, CRS; (c) unpaid loans due to the Student Loan Division of the Department of Higher Education; (d) amounts required to be paid to the Unemployment Compensation Fund; and (e) other unpaid debts owing to the State or its agencies, as a result of final State determination or reduced to judgment, as certified by the State Controller. 20.8. SOFTWARE PIRACY PROHIBITION. Governor's Executive Order D 002 00. No State 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 State determines that Contractor is in violation of this paragraph, the State may exercise any remedy available at law or equity or under this Contract, including, without limitation, immediate temunation of this Contract and any remedy consistent with federal copyright laws or applicable licensing restrictions. Page 11 of 13 20.9. EMPLOYEE FINANCLAL INTEREST. CRS 24-18-201 and 24-50-507. The signatories aver that to their knowledge, no employee of the State has any personal or beneficial interest whatsoever in the service or property described in this Contract. 20.10. [Not Applicable to Intergovernmental Contracts]. ILLEGAL ALIENS -PUBLIC CONTRACTS FOR SERVICES AND RESTRICTIONS ON PUBLIC BENEFITS. CRS 8-17.5-101 and 24-76.5-101. Contractor certifies that it shall comply with the provisions of CRS 8-17.5-101 et seq. 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 represents, warrants, and agrees that it (i) has veriFed that it does not employ any illegal aliens, through participation in the Basic Pilot Employment Verification Program administered by the Social Security Administration and Department of Homeland Security, and (ii) otherwise shall comply with the requirements of CRS 8-17.5-102(2)(b). Contractor shall comply with all reasonable requests made in the course of an investigation under CRS 8-175-102 by the Colorado Department of Labor and Employment. Failure to comply with any requirement of this provision or CRS 8-17.5-101 et seq., shall be cause for termination for breach and Contractor shall be liable for actual and consequential damages. Contractor, if a natural person eighteen (18) yeazs of age or older, hereby sweazs or affirms under penalty of perjury that he or she (i) is a citizen or otherwise lawfully present in the United States pursuant to federal law, (ii) shall comply with the provisions of CRS 24-76.5-101 et seq., and (iii) shall produce one form of identification required by CRS 24-76.5-103 prior to the effective date of this Contract. Revised October 25, 2006 Effective Date of Special Provisions: Angust 7, 2006 THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK Page 12 of 13 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 City is relying on their representations to that effect and accept personal responsibility for any and all damages the City may incur for any errors in such representation. CONTRACTOR: McIGnst Essenfion, Inc. CITY OF ASPEN Name: Jos h Ha ar Name: Jeff Rice Titl ' ~ for of Finance Title: Utilities Efficienc Mana er ~~ *Si na e Date: $// 3~0$~ Date: "f 2 D Page 13 of 13 Exhibit A -Technical Energy Audit & Project Proposal Contract Scope of Work 1) Data and Information. Collect data and background information from the City 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. l.Operating engineer logs, maintenance work orders, etc., as available. m.Records ofmaintenance expenditures on energy-using equipment, including service contracts. n. Prior energy audits or studies, if any. 2) Identify Potential Measures a. Interview individuals with knowledge of the facility such as the facility manager, maintenance staff, subcontractors and occupants of each building regarding: i. Facility operation, including energy management procedures. ii. Equipment maintenance problems. iii. Comfort problems and requirements. iv. Equipment reliability. v. Projected equipment needs. vi. Occupancy and use schedules for the facility and specific equipment. vii. Facility improvements -past, planned and desired. b. Survey major energy-using equipment, including, but not limited to, lighting (indoor and outdoor), heating and heat distribution systems, cooling systems and related equipment, automatic temperature control systems and equipment, air distribution systems and equipment, outdoor ventilation systems and equipment; exhaust systems and equipment; hot water systems, electric motors, transmission and drive systems, special systems such as kitchen/dining equipment and swimming pools, renewable energy systems, other energy using systems, water consuming systems, such as restroom fixtures, water fountains, and irrigation systems. c. Perform "late-night" surveys outside of normal business hours or on weekends to confirm building system and occupancy schedules, if deemed necessary. d. Develop a preliminary list of potential energy and water saving measures. Consider the following for each system: i. Comfort and maintenance problems. ii. Energy use, loads, proper sizing, efficiencies and hours of operation. Page 1 of 6 Exhibit A -Technical Energy Audit & Project Proposal Contract Scope of Work iii. Current operating condition. iv. Remaining useful life. v. Feasibility of system replacement. vi. Hazardous materials and other environmental concerns. vii. City's fixture plans for equipment replacement or building renovations. viii. Facility operation and maintenance procedures that could be affected. ix. Capability to monitor energy performance and verify savings. 3) Base-Year Consumption. Establish base-year consumption and reconcile with end-use consumption estimates. a. Establish appropriate base year consumption by examining utility bills for the past three years for electricity, gas, propane, steam, water, and any other applicable utilities. Present base year consumption in terms of energy units (kWh, kW, ccf, Therms, gallons, or other units used in bills), in terms of energy units per square foot, in terms of dollazs, 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 orweather-normalized method). Consult with facility personnel to account for any anomalous schedule or operating conditions on billings that could skew the base year representation. Contractor shall account for periods of time when equipment was broken or malfunctioning in calculating the base year. b. Estimate loading, usage and/or hours of operation for all major end uses of total facility consumption including, but not limited to: lighting, heating, cooling, motors (fans, pumps, and other pertinent), plug loads, and other major energy and water using equipment. Where loading or usage are highly uncertain (including variable loads such as cooling), Contractor shall use its best judgment, spot measurements or short-term monitoring. Contractor should not assume that equipment run hours equal the operating hours of the building(s) or facility staff estimates. c. Reconcile annual end-use estimated consumption with the annual base yeaz 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 1, 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. Page 2 of 6 Exhibit A -Technical Energy Audit & Project Proposal Contract Scope of Work 5) Preliminary Meeting. Meet with the City to present preliminazy analysis prior to complete analysis. Describe how the projected project economics meet the City'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 City 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. 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 City and the Contractor. The report shall include: a. Overview. i. Contact information. ii. Summary table of recommended energy and water saving measures, with itemization for each measure of total design and construction cost, annual maintenance costs, the first year cost avoidance (in dollars and energy/water units), simple payback and equipment service life. iii. Summary of annual energy and water use by fuel type and costs of existing or base year condition. iv. Calculation of cost savings expected if all recommended measures are implemented and total percentage savings of total facility energy cost. v. Description of the existing facility, mechanical and electrical systems. vi. Summary description of measures, including estimated costs and savings for each as detailed above. vu. Discussion of measures considered but not investigated in detail. viii. Conclusions and recommendations. b. Base year energy use. i. Description and itemization of current billing rates, including schedules and riders. ii. Summary of all utility bills for all fuel types and water. Page 3 of 6 Exhibit A -Technical Energy Audit & Project Proposal Contract Scope of Work iii. Identification and definition of base year consumption and description of how established. iv. Reconciliation of estimated end use consumption (i.e. lighting, cooing, heating, fans, plug loads, etc) with base year (include discussion of any unusual findings) c. Ful] 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 City 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 is 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 the City, access shall be provided to the program and all assumptions and inputs used, and/or printouts shall be provided of all input files and important output files and included in the Technical Energy Audit with documentation that explains how the final savings figures are derived from the simulation program output printouts. K. If manual calculations are employed, formulas, assumptions and key data shall be stated. L. Conclusions, observations, caveats. iii. Cost estimate -Include all information required under CRS §24-30-2002 as well as a detailed scope of the construction work suitable for cost estimating. Include all anticipated costs associated with installation and implementation. Provide preliminary specifications for major mechanical components as well as detailed lighting and water fixture counts. The following shall also be included: A. Engineering/design costs. B. Contractor/vendor estimates for labor, materials, and equipment; include special provisions, overtime, and all other appropriate items, as needed to Page 4 of 6 Exhibit A -Technical Energy Audit & Project Proposal Contract Scope of Work 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 ofproject 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. iu. 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. S) Post-Audit Meeting. Meet with the City 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 City's terms for completing the Technical Energy Audit and Performance Contract Proposal. Discuss the willingness and capability of the City to make capital contributions to the project to improve the economics of the overall project. Revise Audit as directed by the City. 9) Complete and Present Final Technical Energy Audit Report. Deliver final audit report to the City for approval. Execute Exhibit B to the TEAPP. 10) Proposal. Prepare an Energy Performance Contract Proposal using the State Energy Performance Contract documents. In anticipation of Contractor and the City entering into an Energy Performance Contract to design, install, and monitor the energy and water saving measures proposed in the Technical Energy Audit Report, Contractor shall prepare a proposal to be incorporated in an Energy Performance contract that includes the following: a. Project Cost is the maximum not to exceed amount the City 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 Repor[ resu]ts); performance/payment bond costs; construction management fees; commissioning costs; maintenance fees; monitoring fees; training fees; and overhead and profit. b. Include a List of Services that shall be provided as related to each cost. c. Expected teen of the Energy Performance Contract. Page 5 of 6 Exhibit A -Technical Energy Audit & Project Proposal Contract Scope of Work 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 Office of the State Architect 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 the City at this time, and based on a 60-day and 90-day lock option. f. Explanation of how the savings shall be calculated and adjusted due to weather (such as heating and cooling degree days), occupancy or other factors. Monitoring and verification methods must be consistent with the most cunent IPMVP. g. Analysis of annual cash flow for the City during the contract term. Page 6 of 6 Exhibit B -Technical Energy Audit & Project Proposal Contract Notice of Acceptance of Technical Energy Audit Report City ~f Aspen City of Aspen "nstry - Iem YOCrBUIIOIng 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 City of Aspen on ,notice is hereby given that City accepts the Contractor's proposal . Customer Name By Date Exhibit C -Technical Energy Audit & Project Proposal Contract - Buildings Included in Scope of Work Customer Name: City of Ashen Colorado The following tables lists the buildings included in the Technical Energy Audit (TEA) Scope of Work. Other facilities that audit fees will not be assessed on a GSF basis, e.g., water treatment plants, wastewater treatment plants, warehouses, arenas, and others. Building Building Type Building Age Building GSF Bldg. Tot Audit $ TOTAL TOTAL COST OF TEA: $25 000.00 Page 1 of I Building Building Type Building Age Building GSF Bldg. Audit $/SF Bldg. Tot Audit $ Parking De artment 2,498 n/a n/a Cit Hall 19,684 n/a n/a Wheeler 22,106 n/a n/a Parkin Gara e 114,000 n/a n/a Streets Building 8,118 n/a n/a Electic Switch Station 2,000 n/a n/a Ice Garden 27,622 n/a n/a Golf Club House (Schlomo's) 10,208 n/a n/a Water Cam us 21,910 n/a n/a Parks/Golf 17,664 n/a n/a TOTAL 245,810 Lum Sum $25,000 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 etc ual 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. MARK-UPS CATEGORY OF MARK-UP MARK-UP APPLICATION % MARK-UP Overhead Total Construction Cost 12% Profit Total Construction Cost 10% Labor - Internal 0% E ui ment Purchased 0% Materials Purchased 0% Subcontract Labor 0% Subcontract Material 0% Fees Use only the categories shown. Ranges for fees are not acceptable. FEES CATEGORY OF FEE HOW DETERMINED YEARS AND USED APPLIED (One-time, Annual, etc.) Technical Energy Audit and Approx $.10 per Squaze Foot Project Develo ment Lum Sum $25,000 One time Solicit & Evaluate Project No additional charge; included in Financin Pro osals audit cost N/A Desi 9% of Direct Construction Cost One time Contin enc 5% of Direct Construction Cost One time Permits Actual Cost One time Actual Cost -Currently $10.10 per thousand for ls` $500,000; $8.00 per Performance Bond thousand for next $2,000,000 One time Pro~ect/Construction Mana ement 5% of Direct Construction Cost Commissionin 2% of Direct Construction Cost One time Trainin 1 % of Direct Construction Cost One time Per Project M&V Plan; Not to Monitorin and Verification exceed 6-8% of total ener savin s Annual Warrant Service 1 % of Direct Construction Cost One time Maintenance on Installed Measures To be ne otiated in needed Annual Page 1 of 1