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Home My WebLink Aboutresolution.council.010-10RESOLUTION NO. Series of 2010 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT FOR PERFORMANCE CONTRACTING OF ENERGY EFFICIENCY IMPROVEMENTS TO THIRTEEN CITY OF ASPEN OWNED BUILDINGS AND FACILITIES, BETWEEN THE CITY OF ASPEN AND MCKINSTRY, AND AUTHORIZING THE MAYOR OR CITY MANAGER TO EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council a contract for performance contracting of energy efficiency improvements to thirteen City of Aspen owned buildings and facilities, between the City of Aspen and McKinstry, a true and accurate copy of which is attached hereto as Exhibit "A"; NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ASPEN, COLORADO: That the City Council of the City of Aspen hereby approves that Contract for performance contracting of energy efficiency improvements to thirteen City of Aspen owned buildings and facilities, between the City of Aspen and McKinstry, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the Mayor or City Manager to execute said agreement on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the Aspen on the 25 day of~ 1~(~U (/ 10. _ f~r~ of 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 on the day her~nabove stated. , ,/ S. ~{,,6ch, City TLN-1/19/2010-34304-G'\Tara\FILES M-Z\RESOS\MCKinslry.doc THE AMERICAN INSTITUTE OF ARCHITECTS AIA Document A312 Performance Bond Bond # 929495215 Any singular reference to Contractor, Surety, Owner or otner party shall be considered plural where applicable. CONTRACTOR (Name and Address): MclGnstry Essention, Inc. PO Box 24567 Seattle, WA 98124-0567 OWNER (Name and Address): City of Aspen 130 S. Galena Street Aspen, CO 81611 CONSTRUCTION CONTRACT Date: 01/12/2010 Amount: $874,981.00 SURETY (Name and Principal Place of Business): Western Surely Company PO Box 3018 Bothell, WA 98041-3018 Description (Name and Location): City of Aspen Energy Performance Contract Aspen, Colorado Boma Date (Not earlier than Construction Contract Date): 01/12/2010 Amount: 5874,981.00 Modifications to this Bond: CONTRACTOR AS PRINCIPAL Company: (Corporate Seal) McKinstr ssenti n, Inc. //~/ Signature: _ ~ ~f~~1~0 Name and'/Title 11 ~oSy~(/I H4G{QfI I~IY2cl,o{' of ~-NQKG2 (Any additio al signatures appear on page 3) ~ None SURETY O See Page 3 Company: (Corporate Seal) Western Surety C npa Signature: - '~~~` - ~°~/ Name and Titl Julie M. Glover Attorney-In-Fact (FOR INFORMATION ONLY-Name, Address and Telephones AGENT or BROKER: OWNER'S REPRESENTATIVE (Architect, Engineer or HUB International Northwest, LLC other party): PO Boz 3018 "" Bothell, WA 98041-3018 (425) 489-4500 AIA DOCUMENT A812 • PERFORMANCE BOND AND PAYMENT BONb • DECFMBER 1989 ED. •AIA QD THE AMERIGN INSTITUTE OF ARCF!I7ECT5, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006 A312•t984 ~ THIRD PRINTING • MAkCH 1987 Contract 372 (.267) t The Contractor and the Surety, jointly and severally, bind themselves, their heirs, ezecutors, administrators, successors and assigns to the Owner for the performance of the Construction Contract, which is incorporated herein by reference. 2 If the Contractor performs the Construction Contract, the Surety and the Contractor shall have no obligation under this Bond, except to participate in conferences as provided in Subparagraph 3.1. 3 If there is no Owner Default, the Suretv's obligation under this Bond shall arise after: 3.1 The Owner has notified the Contractor and the Surep• at its address described in Paragraph 10 belote that the Owner's considering declaring a Contractor Default and has requested and at?empted to arrange a conference with the Contractor and the Surety to be held not later than liftecn days after receipt of such notice to discuss methods of performing the Construc- tion Contract. Ii the Owner, the Contractor and the Surety agree, the Contractor shall be allowed a reason- able time to perform the Construction Contract, but such an agreement shall not waive the Owner's right, if any, subsequently to declare a Contractor Default; and 3.2 The Owner has declared a Contractor Default and (orma!ly terminated the Contractor's right to complete the contract. Sucn Contractor Default shall not be de• dared earlier than twenty days after the Contractor and the Surety have received notice as provided in Sub- paragraph 3.1; and 3.3 The Owner has agreed to pay the Balance of the Contract Price to the Surety in accordance with the terms of the Construction Contract or to a contractor selected to perform the Construction Contract in accor- dance with the terms of the contract with the Owner. 4 When the Owner has satisfied the conditions of Para- graph 3, the Surety shall promptly and at the Surety's ex- pense take one of the following actions: 4.7 Arrange for the Contractor, with consent of the Owner, to perform and complete the Construction Contract; or 4.2 Undertake to performandcompletetheConstruc- tion Contrail itself, through its agents or through inde- pendent contracors; or 4.3 Obtain bids or negotiated pro posais from qualified contractors acceptable to the Owner fur a contract for performance and completion of the Con- struction Contract, arrange for a contract to be pre- pared for execution by the Owner and the contractor selected with the Owner's concurrence, to be secured with performance and payment bonds executed by a qualified surety equivalent to the bonds issued on the Construction Contract, and pay to the Owner the amount of damages as described in Paragraph 6 in ex- cess ofthe Balance of the Contract Price incurred by the Owner resulting from the Contractor's default; or 4-4 ~kaive its right to perform and complete, arrange for completion, or obtain a new contractor and with reasonable promptness under the circumstances: which it may be Liable to the Owner and, as soon as practicable after the amount is deter- mined, tender payment therefor to the Owner; or .2 Deny liability in whole or in partand notify the Owner citing reasons therefor. 5 If the Surety does not proceed as provided in Paragraph a with reasonable promptness, the Surety shall be deemed to be in default on this Bond fifteen days after receipt of an additional written notice from the Owner to the Surety demanding that the Surety perform its obligations under this Bond, and the Owner shall be entitled to enforce anv remedy available to the Owner. If the Surety proceeds as provided in Subparagraph 4,4, and the Owner refuses the payment tendered or the Surety has denied liability, in whole or in part, without further notice the.Owner shall be entitled to enforce any remedy available to the Owner. 6 After the Owner has terminated the Contractor's right to complete the Construction Contract, and if the Surety elects to act under Subparagraph 4.1, 4.2, or 43 above, then the responsibilities of the Surety to the Owner shall not 6e greater than those of the Contractor under the Construction Contract, and the responsibilities of the Owner to the Surety shall not be greater than those of the Owner under the Construction Contract. To the limit of the amount of this Bond, but subject to commitment by the Owner of the Bafance of the Contract Price to mitigation of costs and damages on the Construction Contract, the Sure- ty is obligated without dupL'cation for: 6.7 The responsibilities of the Contractor for correc- tion of defective work and completion of the Construc- tion Contract; 6.2 Additional legal, design professional and delay costs resulting from the Contractor's Default, and re- sulting from the actions or failure to act of the Surety under Paragraph 4; and 6.3 Liquidated damages, or if no liquidated damages are specified in the Construction Contract, actual dam- ages caused by delayed performance or non-perfor- mance of the Contractor, 7 The Surety shall not be liable to the Owner or others for obligations of the Contractor that are unrelated toihe Con- struction Contract, and the Balance of the Contract Price shall not be reduced or set off on amount of ary such .:nr~hted ^~ligatiom;. No •igh• ^f ~"cn hall accrue .,,, this Bond to any person or entity other than the Owner or its heirs, ezecutors, administrators or successors. 8 The Surety hereby waives notice of any change, includ- ing changes of time, to the Construction Contract or to related subcontracts, purchase orders and other obliga• Lions. 9 Any proceeding, legal or equitable. under this Bond may be instituted in any court of competent jurisdiction in the IDCahO^ in which thework or part of the work is located and shall be instituted within Iwo years after Cor.traclor Default or within Iwo years after the Contractor ceased working or within two years after the Surety refuses or fails to perform its obligations under this Bond, whichever oc- curs first. If the provisions of this Paragraph are void or prohibited by law, the minimum period of limitation avail• _.... .1 After investigation, determine the amount for AIA DOCUMENT A37I • PE RfOR.MANCE BOND AND PAYA1F Ni BOND • OECENBER 1981 ED. • .41A +~ THE AMERICAN INSTITUTE OF ARCHITCCTS, 1135 NEw' YORK AVE.. N.LY.. WA5111NGTON. D.C. 2WC6 THIRD PRItiTING • MARCH 1997 A312.1984 2 able to sureties as a defense ir, the jurisdiction of the suit shall be applicable. ,,,~ 10 NoticetotheSurety,theOwnerortheCon[rattorshall be mailed or delivered to the address shown on the sig- nature page. 11 When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the cons?ruction was to be performed, any provision in this Bond conflicting with said statutory or legal requirement shalt be deemed deleted herefrom and provisions con- forming to such statutory or other legal requirement shall be deemed incorporated herein. The intent is that this Bond shall be construed as a statutory bond and not as a common law bond. .„•., ~s..o 12 DEFINITIONS 12.1 Balance of the Contract Price: The total amount payable by the Owrer to the Contractor under the Construction Contract after all proper adjustments have been made, including allowance to the Con- MODIFICATIONS TO THIS BOND ARE AS FOLLOWS: tractor of any amounts received or to be received by the Owner in settlement of insurance or other claims for damages to which the Contractor is entitled, re- duced by all valid and proper payments made to or on behalf of the Contractor under the Construction Con- tract. 12.2 Construction Contract: The agreement between the Owner and the Contractor identified on the sig- nature page, including all Contract Documents and changes thereto. 12.3 Contractor Default: Failure of the Contractor, which has neither been remedied nor waived, to per- form or otherwise to comply with the terms of the Consteuetion Contract. 12.4 Owner Default: Failure of the Owner, which has neither been remedied nor waived, to pay the Con- tractor as required by the Construction Contract or to perform and complete or comply with the other terms thereof, (Space is provided below for additional signatures or added parties, other than those appearing on the cover page.) CONTRACTOR AS PRINCIPAL SURETY Company: tCorporate SeaU Company: (Corporate SeaU Signature: - Name and Title: Address: Signature: Name and Title: Address: AIA DOCUMENT Aat$ • PC RFORMANCE BOND AND PAYMCNT BOND • UkCEMBER 198-0 ED. •AIA S THE AMERICAN INSTITUTE Of ARCHITECTS, 1731 NEW YORK AVL. N,U'., WASHINGTON, U.C.:OOD6 THIRD PRINTING • MARCH 1987 A312-1984 3 THE AMERICAN INSTITUTE OF ARCHITECTS AlA Document A312 Payment Bond Bond # 929495215 Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. CONTRACTOR (Name and Address): McIGnstry Essention, Inc. PO Box 24567 Seattle, WA 98124-0567 OWNER (Name and Address}: City of Aspen 130 S. Galena Street Aspen, CO 81611 SURETY (Name and Principal Place of Business): Western Surety Company PO Box 3018 Bothell, WA 98041-3018 CONSTRUCTION CONTRACT Date: 01/12/2010 Amount: $874,981.00 Description (Name and Location): City of Aspen Energy Performance Contract Aspen, Colorado BOND Date (Not earlier than Construction Contract Date): 01/12/2010 Amount: $874,981.00 Modifications to this Bond: ~ None ~5ee Page 6 CONTRACTOR AS PRINCIPAL Company: (Corporate Seal) McKinstr ssentio Inc. Signature: ~~ ~/= Name and Title: Joserrll Ela~ar~~ired-or of Fvtctttie..~ (Any addition I signatures appear on page 6 SURETY Company: (Corporate Seal) Western Surety Com any ~~ignature: Name and Title. Julie M. Glover Attorney-In-Fact (FOR INFORMATION ONLY-Name, Address and Telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE (Architect, Engineer or HUB International Northwest, LLC other party): PO Box 3018 ~'"- Bothell, WA 98041-3018 1:a„ (425) 489-4500 AIA DOCUMENT A37Y • PERFORMANCE BOND AND PAYMENT 80ND • bECFMeER 1984 ED. •AIA THE AMERICAN INSTITUTE OF ARCHITECTS. 7735 NEW YORK AVE.. N.W., w'ASHINCTON, D.C. 20006 A31Z•1984 M1 THIRD PRINTING • MARCH 7%7 Co ntraci 3 73 17 2871 `... t The Contractor and the Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors and assigns to the Owner to pay for labor, materials and equipment furnished for use in the perfor- mance of the Construction Contract, which is incorpo- rated herein by reference. 2 With respect to the Owner, this obligation shall be null and void if the Contractor: 2.1 Promptly makes payment, directly or indirectly, for all sums due Claimants, and 2.2 Defends, indemnifies and holds harmless the Owner from claims, demands, liens or suits by any person or entity whose Haim, demand, lien or suit is for the payment for ;abor, materials or equipment fur- nished for use in the performance of the Construction Contract, provided the Owner has promptly notified the Contractor and the Surety fat the address described in Paragraph 12) of any claims, demands, liens or suits and tendered defense of such claims, demands, liens or suits to the Contractor and the Surety, and provided there is no Owner Default. 3 With respect to Claimants, this obligation shall be null and void if the Contractor promptly makes pay- ment, directly or indirectly, for all sums due. 4 The Surety shall have no obligation to Claimants under this Bond until: 4.1 Claimants who are employed by or have a direct contract with the Contractor have given notice to the Surety (at the address described in Paragraph 12) and sent a copy, or notice thereof, to the Owner, stating that a claim is being made under this Bond and, with substantial accuracy, the amount of the claim. 4.2 Claimants who do not have a direct contract with the Contractor: .1 Have furnished written notice to the Con- tractor and sent a copy, or notice thereof, to the Chvner, within 90 days after having last. performed (abor or last furnished materials or equipment included in the claim staling, with substantial accuracy, the amount of the claim and the name of the party to whom the materials were furnished or supplied or for whom the labor was done o' performed; and .2 Have either received a rejection in whole or in part from the Contractor, or not received within 30 days of furnishing the above no- lice any communication from the Contractor by which the Contractor has indicated the claim will be paid directly or indirectly; and .3 Not havilTg been paid within the above 30 days, have sent a written notice to the Surety (at the address described in Paragraph 12) and sent a copy, or notice thereof, to the Owner, stating that a claim is being made under this Bond and enclosing a copy of the previous written notice furnished to the Contractor. 5 If a notice required by Paragraph 4 is given by the Owner to the Contractor or to the Surety, that is suffi- cient compliance. 6 When the Claimant has satisfied the conditions of Paragraph 4, the Surety shall promptly and at the Surety's expense take the following actions: 6.1 Send an answer to the Claimant, with a copy to the Owner, within 45 days after receipt of the claim, stating the amounts that are undisputed and the basis for challenging any amounu that are disputed. b.2 Pay or arrange for payment of any undisputed amounts. 7 The Surety's total obligation shall not exceed the amount of this Bond, and the amount of this Bond shall be credited for any payments made in good faith by the Surety. e Amounts owed by the Owner to the Contractor under the Construction Contract shall be used for the perfor- mance of the Construction Contract and to satisfy claims, if any, under any Construction Performance Bond. By the Contractor furnishing and the Owner accepting this Bond, they agree that all funds earned by the Contractor in the performance of the Construction Contract are dedicated to satisfy obligations of the Contractor and the Surety under this Bond, subject to the Owner's prior- ity to use the funds for the completion of the work. 9 The Surety shall not be liable to the Owner, Claimanu or others for obligations of the Contractor that are unrelat- ed to the Construction Contract. The Owner shall not be liable for payment of any costs or expenses of any Claim- antunder this Bond, and shall have under [his Bond no obli- gations to make payments to, give notices on behalf of, or otherwise have obligations to Claimants under this Bond. 10 The Surety hereby waives notice of any change, including changes of time, to the Construction Contract or to related subcontracts, purchase orders and other obligations. 11 No suit or action shall be commenced by a Claimant under this Bond other than in a court of competent juris- diction in the location in which the work or part of the work is located or after the expiration of one year from the date (1) on which the Claimant gave the notice required by Subparagraph 4.1 or Clause 4.2.3, or (2) on which the last labor or service was performed by anyone or the last mate vials or equipment were furnished by anyone under the Con- struction Contract, whichever of (1) or (2) first occurs. If the provisions of this Paragraph are void or prohibited by law, the minimum period of limitation available to sureties as a defense in the jurisdiction of the suit shall be applicable. 12 Notice to the Surety, [he Owner or the Contractor shall be mailed or delivered to the address shown on the signature page. Actual receipt of notice by Surety, the Owner or the Contractor, however accomplished, shall be sufficient compliance as of the date received at the address shown on the signature page. 13 When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was to be performed, any provision in this Bond conflicting with said statutory or legal requirement shall be deemed deleted herefrom and provisions con- forming to such statutory or other legal requirement shall be deemed incorporated herein. The intent is that this AIA DOCUMENT Alit • Pf RFORMANCE BOND AND PAYMENT BpNO • DE CEMeER 7984 ED. • AIAa THE AMERIUN INSTITUTE OF ARCHITECTS, 1735 NEW YONK AVE, N W , WASHINGTON, D.C. 20006 THIND PRINTING • MARCH 1987 A312.1984 5 Bond shall be construed as a statutory bond and not as a common law bond. 24 Upon request by any person or entity appearing tobea °°- potential beneficiary of this Bond, the Contractor shall promptly furnish a copy of this Bond or shall permit a copy to be made. 25 DEFINITIONS 25.1 Claimant: An individual or entity having a direct contract with the Contractor orwith a subcontractor of the Contractor to furnish labor, materials or equip- mentfor use in the performance of the Contrail. The intent of this Bond shall be to include without limita- tion in the terms "labor, materials or equipment" that part of water, gas, power, light, heat, oil, gasoline, telephone service or rental equipment used in the MODIFICATIONS TO THIS BOND ARE AS FOLLOWS: Construction Contract, architectural and engineering services required for performance of the work of the Contractor and the Contractor's subcontractors, and all other items for which a mechanic's lien may be asserted in the jurisdiction where the labor, materials or equipment were furnished. 75.2 ConstrudionContractTheagreemen(between the Owner and the Contractor identified on the sig- nature page, including all Contract Documents and changes [hereto. 15.3 Owner Default: Failure of the Owner, which has neither been remedied nor waived, to pay the Con- tractor as required by the Construction Contract or to perform and complete or complywith the other terms thereof. Paragraph 6 of this Bond is deleted in its entirety and replaced with the following provision: Within a reasonable time (1) after the Claimant has satisfied the conditions of Paragraph 4 and (2) after the Surety has reviewed all supporting documentation it requested to substantiate the amount of the claim, the Surety shall pay or arrange for payment of any undisputed amounts. Failure of the Surety to satisfy the above requirements shall not be deemed a forfeiture or waiver of the Surety's or the Contractor's defenses under this Bond or their right to dispute such claim. However, in such event the Claimant may bring suit against the Surety as provided under this Bond. (Space is provided below for additional signatures of added parties, other than those appearing on the cover page.) CONTRACTOR AS PRINCIPP,L SURETY Company: (Corporate Seai) Company: (Corporate Seal) Signature: Name and Title: Address: Signature: - Name and Title: Address: AIA DOCUMENT Aat3 PERFORMANCE BOND .AND PAYMENT BOND DECEMBER 1964 ED. •AIA .g THE AMERICAN INSTITUTE OF ARCHITECTS, (735 NEIK YORK AVE., N.1v., \vASHINGTON, D.C. X006 A312.1984 6 THIRD PRINTING • MARCH 1987 Western Surety Company POWER OF ATTORNEY APPOINTING INDIVIDUAL ATTORNEY-IN-FACT ~„ Know All Men By These Presents, Tha[ WESTERN SURETY COMPANY, a South Dakota corporation, is a duly organized and existing corporation having its principal office in [he City of Sioux Falls, and Slate of South Dakota, and that it does by virtue of the signature and seal herein affixed hereby make, constitute and appoint Michael A Murphy, Darlene Jakielslci, Julie M G-over, Steven K Bush, M J Cotton, S M Scott, Nancy J Osborne, Theresa A Lamb, Jim W Doyle, Andy D Prill, Jim S Kuich, Individually of Bothell, WA, ifs Vue and lawful A[tomey(s)-in-Fact with full power and authority hereby conferred to sign, seal and execute far and on its behalf bonds, undertakings and other obligatory instruments of similar nature - In Unlimited Amounts - and to bind i[ [hereby az fully and to [he same extent as if such ins[mments were signed by a duly authorized officer of [he corporation and all the acts of said Attomey, pursuant to the authority hereby given, are hereby ratified and wnfirmed. This Power of Attorney is made and executed pursuant to and by authority of [he By-Law printed on the reverse hereof, duly adopted, az indicated, by [he shareholders of [he corporation. In Witness Whereof, WESTERN SURETY COMPANY has caused these presents [o be signed by its Senior Vice President and its corporate seal [o be hereto affixed on this 27th day of March, 2009. Stale of South Dakota 1 )J ss County of Minnehaha +~,~ WESTERN SURETY COMPANY a ?lr~~ 01S ~Me,4py,VUggfi^)i+ Eul tf ~~/ =i'\Sf P~, ; erg ~Q+M OPF~v~ Paul . Bmfla[, Senior Vice President On this 27th day of March, 2009, before me personally came Paul T. Brufla[, [o me known, who, being by me duly sworn, did depose and say: that he resides in the City of Sioux Falls, State of South Dakota; that he is the Senior Vice President of WESTERN SURETY COMPANY described in and which executed the above instrument; Utat he knows [he seal of said wrpora[ion; [ha[ the seal affixed to [he said ins[mmen[ is such corporate seal; that it was so affixed pursuant [o authority given by [he Board of Directors of said corporation and Iha[ he signed his name [hereto pursuant [o like authority, and acknowledges same [o be the ac[ and deed of said corporation. My commission expires ~4h44M1Yh44\hY\\\444ti444M14 + +`~ D. KRELL + ;NOTARY PUBLIC~± `~'~ November 30, 2012 r EAL SOUTH DAKOTA SEAL ~+, ~4\IM1M14\h444\M1\Y44444Y4h4~ D. Krell, Notary Public CERTIFICATE I, L. Nelson, Assistant Secretary of WESTERN SURETY COMPANY do hereby certify [hat the Power of Attomey hereinabove set forth is still in force, and further certify that [he By-Law of the corporation printed on the reverse hereof is still in force. In testimony whereof 1 have hereunto subscribed my name and affixed the seal of the said corporation this 12th day of January 2010 w ='*e WESTERN SURETY COMPANY \~ j~Pp!'pPPONq~~ €W~o r•~~I ~s~~• i/ L. Nelson, Assistant Secretary Form F4280-09-06 Authorizing By-Law ADOPTED BY THE SHAREHOLDERS OF WESTERN SURETY COMPANY This Power of Attorney is made and executed pursuant to and by authority of the following Bylaw duly adopted by the shareholders of the Company. Section 7. All bonds, policies, undertakings, Powers of Attomey, or other obligations of [he corporation shall be executed in the corporate name of the Company by the President, Secretary, and Assistant Secretary, Treasurer, or any Vice President, or by such other officers as the Board of Directors may authorize. The President, any Vice President, Secretary, any Assistant Secretary, or the Treasurer may appoint Attorneys in Fact or agents who shall have authority to issue bonds, policies, or undertakings in [he name of the Company. The corporate seal is no[ necessary for the validity of any bonds, policies, undertakings, Powers of Attomey or other obligations of the corporation. The signature of any such officer and [he corporate seal may be printed by facsimile. '~+ ,,.~, City of Aspen Energy Performance Contract C] i~7C x..11 T ~ ~'Wi~ 01 12 10 ns~ry ile Ol Yoor Building Prepared by Leslie Larocque Business Development Manager McKinstry Prepared for City of Aspen ~~' '~ ';~TK'r FOR THE LIFE OF YOUR BUILDING tilechanical & Electrical Design/Build ~ Mobile Service ~ Energy Solutions ~ Facility Management Performance Contract ~,, '*~- ENERGY PERFORMANCE CONTRACT TABLE OF CONTENTS ARTICLE 1: DEFINITIONS, SCHEDULES AND EXHIBITS AND APPENDICES Section 1.1 Definitions Section 1.2 Schedules Section 1.3 Exhibits Section 1.4 Appendices ARTICLE 2: PAYMENTS Section 2.1 Purchase and Sale Section 2.2 Contractor Compensation -Interim Period Section 2.3 Energy and Cost Savings Guarantee Section 2.4 Allowable Payment Sources Section 2.5 Capital Contribution from the City Section 2.6 Independent Monitoring Section 2.7 Annual Review and Reimbursement/Reconciliation Section 2.8 Monitoring Information Procedure Section 2.9 Monitoring Fee Section 2.10 Late Payment ARTICLE 3: UTILITY AWARD PAYMENTS Section 3.1 Utility Award Payments ARTICLE 4: TIME FOR COMPLETION; COMMENCEMENT DATE; TERM OF CONTRACT Section 4.1 Construction Commencement Date and Time for Completion of Work Section 4.2 Performance Commencement Date Section 4.3 Performance Term of Contract ARTICLE 5: ENERGY USAGE RECORDS AND DATA Section 5.1 Energy Usage Records and Data ARTICLE 6: CONSTRUCTION AND INSTALLATION BY CONTRACTOR Section 6.1 Permits and Approvals Section 6.3 Contractor's Duty of Proper Installation Section 6.4 Use of Stated Markups Section 6.5 Open Book Pricing Section 6.6 Administration City of Aspen, Colorado Energy Performance Contract Page 1 of 24 Performance Contract ARTICLE 7: ENVIRONMENTAL REQUIREMENTS Section 7.1 Excluded Material and Activities Section 7.2 Polychlorinated Biphenyl (PCB) Ballasts; Mercury Lamps ARTICLE 8: ACCEPTANCE TESTING Section 8.1 Modification of Schedules Section 8.2 Systems Startup and Equipment Commissioning ARTICLE 9: MAINTENANCE/MONITORING Section 9.1 Ownership of Certain Proprietary Property Rights Section 9.2 Ownership of Documents Section 9.2.1 Instruments of Service Section 9.2.2 As-Built Drawings/Record Drawings Section 9.3 Ownership of Existing Equipment Section 9.4 Ownership of Measurement and Verification Equipment ARTICLE 10: STANDARDS OF COMFORT Section 10.1 Standards of Comfort ARTICLE 11: EQUIPMENT WARRANTIES Section 11.1 Equipment Warranties Section 11.2 Actions by Contractor Section 11.3 Malfunctions and Emergencies Section 11.4 Actions by the City ARTICLE 12: MODIFICATION, UPGRADE OR ALTERATION OF EQUIPMENT Section 12.1 Modification of Equipment Section 12.2 Upgrade or Alteration of Equipment ARTICLE 13: LOCATION AND ACCESS Section 13.1 Contractor Access Section 13.2 Utility Access ARTICLE 14: MATERIAL CHANGES Section 14.1 Material Change Defined Section 14.2 Reported Material Changes; Notice by the City Section 14.3 Other Adjustments ARTICLE 15: TRAINING AND FOLLOW-UP ACTIVITIES BY CONTRACTOR Section 15.1 Training Section 15.2 Application for Energy Star or LEED Section 15.3 Emissions Reductions Documentation and Reporting ^^'"-~ City of Aspen, Colorado Page 2 of 24 Energy Performance Contract Performance Contract ARTICLE 16: GENERAL CONTRACTUAL PROVISIONS Section 16.1 Additional Insurance Requirements-Professional Liability Insurance ARTICLE 17: EVENTS OF DEFAULT Section 17.1 Events of Default by the City Section 17.2 Events of Default by Contractor ARTICLE 18: ASSIGNMENT Section 18.1 Assignment by Contractor Section 18.2 Assignment by the City ARTICLE 19: REPRESENTATIONS AND WARRANTIES Section 19.1 General Representation and Warranties ARTICLE 20: ADDITIONAL REPRESENTATIONS OF THE PARTIES Section 20.1 By the City Section 20.2 By Contractor ARTICLE 21: MISCELLANEOUS DOCUMENTATION PROVISIONS Section 21.1 Waiver of Liens, Performance Bonds, Labor and Material Payment Bonds Section 21.2 Further Documents Section 21.3 The City's Responsibilities ARTICLE 22: CONFLICTS OF INTEREST Section 22.1 Conflicts of Interest ARTICLE 23: CONTRACT DOCUMENTS Section 23.1 Plan Details Section 23.2 General Conditions Section 23.3 Order of Precedence Section 23.4 Facsim ile Signatures SCHEDULES Schedule A Equipment to be Installed by Contractor Schedule B Description of Premises; Pre-Existing Equipment Inventory Schedule C Energy and Cost Savings Guarantee Schedule D Contractor Monitoring, Maintenance and Service Contract Schedule E Baseline Energy Consumption Schedule F Savings Measurement & Calculation Formulae; Methodology to Adjust Baseline; Monitoring and Verification Plan Schedule G Construction and Installation Schedule Schedule H Systems Start-Up and Commissioning; Operating Parameters of Installed Equipment Schedule I Standards of Comfort Schedule J Contractor's Maintenance Responsibilities City of Aspen, Colorado Page 3 of 24 Energy Performance Con tract Performance Contract Schedule K Schedule L Schedule M Schedule N Schedule 0 Schedule P Schedule Q Schedule R Schedule S Schedule T The City's Maintenance Responsibilities Facility Maintenance Checklist Contractor's Training Responsibilities General Conditions Payment Schedule and Schedule of Values Pre-Existing Service Agreements Current and Known Capital Projects at Facility Projected Financial Performance Certificate of Insurance Bond Coverage Clarification ~.. EXHIBITS Exhibit I Exhibit II Exhibit III (i) Exhibit III (ii) Exhibit IV Exhibit V Exhibit VI APPENDICES Appendix A Appendix B Appendix C Appendix D Performance Bond Labor and Material Payment Bond Notice of Acceptance-Technical Energy Audit and Monitoring and Verification Plan Notice of Substantial Completion Equipment Warranties Minority and Women-Owned Business Enterprises Certification that Lifetime of Equipment Exceeds Financing Term Lease Agreement and Documents RFP for Contractor Solicitation Contractor Proposal Room-by-room Lighting Retrofits and Savings City of Aspen, Colorado Page 4 of 24 Energy Performance Contract Performance Contract ~"" ENERGY PERFORMANCE CONTRACT This Energy Performance Contract (the "Contract") is made and entered into as of this 12th day of January, 2010, by and between the City of Aspen, a Colorado municipality ("City") and McKinstry Essention Inc., ("CONTRACTOR"), 5005 3~tl Avenue South, Seattle, WA 58134, a Washington corporation doing business in Colorado (the "State"). WITNESSETH: WHEREAS, CITY is a City in the State of Colorado and is authorized and empowered under the laws of the State, particularly Colorado Revised Statute §29-12.5 to enter into this Contract for the purpose of the sale and installation of certain energy and water saving equipment, and provision of other services designed to save energy and reduce related costs as per the guarantee described herein for certain property and buildings owned by the CITY; and WHEREAS, authority exists in the Colorado law and sufficient funds have been budgeted, appropriated and otherwise made available and a sufficient unencumbered balance thereof remains available for encumbering and subsequent payment of this Contract; and WHEREAS, CITY has been authorized to enter into alease-purchase agreement for all professional services, construction/improvements, project contingencies, reimbursable expenses and miscellaneous expenses for the purchase and installation of energy and water conservation measures, collectively referred to as the Work(as herein after defined); and WHEREAS, required approval, clearance, and coordination has been accomplished from and with appropriate agencies; and WHEREAS, CONTRACTOR has developed or become knowledgeable about certain procedures for controlling energy and water consumption through services provided and equipment installed and maintained at facilities similar in scope and scale of the CITY; and WHEREAS, CONTRACTOR was selected after a determination that its proposal was advantageous to the CITY pursuant to a contract for the Technical Energy Audit Contract (as hereinafter defined); and WHEREAS, CONTRACTOR has made an assessment of the utility consumption characteristics of facilities, which was delivered to the CITY as a Technical Energy Audit which the CITY has approved; and WHEREAS, the CITY owns and operates the Premises (as hereinafter defined); and WHEREAS, the CITY desires to retain CONTRACTOR to sell to it, install and service certain energy efficiency equipment of the type or class described herein and to provide other services for the purpose of achieving utility cost reductions within Premises; and WHEREAS, CONTRACTOR has selected the Equipment (as hereinafter defined) on the basis of competitive quality, compliance with CONTRACTOR'S specifications, and price; NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, and intending to be legally bound hereby, The CITY and CONTRACTOR hereto covenant and agree that the following Schedules, Exhibits and Appendices are attached hereto (or will be, as provided in this Contract) and are made a part of this Contract by reference. City of Aspen, Colorado Page 5 of 24 Energy Performance Contract Performance Contract ARTICLE 1: DEFINITIONS, SCHEDULES, EXHIBITS AND APPENDICES Section 1.1: Definitions Contrac : This Energy Pertormance Contract and all Schedules and Exhibits attached hereto. Contract Sum: The sum of all materials, labor, auditing, design, engineering, project construction management fees, overhead, profit, contingency, outside services, and bidding and construction contingencies related to the project. Energy and Water Cost Savin~s• The savings as provided in Schedule C. Energy and Cost Savings Guarantee• The guarantee that is achieved as a result of the installation and operation of the Equipment and provision of services provided for in this Contract as specified in Schedule D and in accordance with the Savings Calculation Formula as set forth in Schedule F. EquiomenY The goods enumerated on Schedule A that is now or hereafter from time to time become attached hereto and incorporated herein by reference, together and with any and all additions, modifications, attachments, replacements and parts thereof. Event of Default: Those events described in Section 17.1 and Section 17.2 hereof. Interim Period: The period from contract execution until the Performance Commencement Date. Monitoring Fee: An annual fee according to Schedule D for monitoring the Energy and Cost Savings. Pertormance Commencement Date: The date described in Section 4.2. Premises: The facilities of the CITY, and is in need of energy and water saving equipment and services designed to reduce consumption and associated costs at said Premises Professional Services: Architecture, engineering, project/construction management related to the Contract. Work: Collectively, the Equipment, Professional Services and project construction related to the project. Section 1.2: Schedules Schedule A Equipment to be Installed by Contractor Schedule B Description of Premises; Pre-Existing Equipment Inventory Schedule C Energy and Cost Savings Guarantee Schedule D Contractor Monitoring, Maintenance and Service Agreement Schedule E Baseline Energy Consumption Schedule F Savings Measurement & Calculation Formulae; Methodology to Adjust Baseline; Monitoring and Verification Plan Schedule G Construction and Installation Schedule Schedule H Systems Start-Up and Commissioning; Operating Parameters of Installed Equipment Schedule I Standards of Comfort Schedule) Contractor's Maintenance Responsibilities Schedule K The City's Maintenance Responsibilities Schedule L Facility Maintenance Checklist Schedule M Contractor's Training Responsibilities Schedule N General Conditions City of Aspen, Colorado Page 6 of 24 Energy Performance Contract Energv Performance Contract Schedule 0 Schedule P Schedule Q Schedule R Schedule S Schedule T Schedule 1.3: Exhibits Payment Schedule and Schedule of Values Pre-Existing Service Agreements Current and Known Capital Projects at Facility Projected Financial Performance Certificate of Insurance Bond Coverage Clarification Exhibit I Form of Performance Bond Exhibit II Form of Labor and Material Payment Bond Exhibit III (i) Form of Notice of Acceptance-Technical Energy Audit and Monitoring and Verification Plan Exhibit III (ii) Form of Notice of Substantial Completion Exhibit IV Form of Equipment Warranties Exhibit V Form of Minority and Women-Owned Business Enterprises Exhibit VI Form of Certification that Lifetime of Equipment Exceeds Financing Term Section 1.4: Appendices Appendix A Lease Agreement and Documents Appendix B RFP for Contractor Solicitation Appendix C Contractor Proposal Appendix D Room by Room Lighting Retrofits and Savings Article 2: PAYMENTS Section 2..1: Purchase and Sale CONTRACTOR agrees to provide the Equipment, together with installation, maintenance and other services as provided herein, as in Schedule A. The agreed to Contract Sum for the Work is a Guaranteed Maximum Price of $1,227,098 as set forth in Schedule R. Payment terms are described in Schedule 0. CONTRACTOR will provide the Work and all related services identified on Schedule A and the services detailed on Schedule D. CONTRACTOR shall supervise and direct the Work and shall be solely responsible for all construction means, methods, techniques, sequences, and procedures and for coordinating all portions of the Work under this Contract. CONTRACTOR shall be responsible to pay for all labor, materials, equipment, tools, construction equipment and machinery, transportation and other facilities and services necessary for the proper execution and completion of the Work. Section 2.2: Contractor Compensation -Interim Period The CITY shall pay CONTRACTOR the Contract Sum in accordance with Schedule 0. Payments will be made on a progress basis in accordance with CRS 24-91-103 and Schedule 0, for Work completed and authorized by the CITY during the Interim Period. Retainage will be withheld from each payment until the construction installation is completed as set forth in Section 4.2. Professional Services shall not be subject to retainage. In lieu of retainage held, the Contractor shall furnish a retention bond issued to the Owner at no cost to the Owner in a form subject to the approval of the City attorney. City of Aspen, Colorado Page 7 of 24 Energy Performance Contract Performance Contract Section 2.3: Energy and Cost Savings Guarantee Subsequent to the Performance Commencement Date and throughout the term of this Contract, CONTRACTOR hereby guarantees the level of Energy and Cost Savings as detailed in Schedule C. CONTRACTOR shall provide the guarantee and monitoring as defined in Schedule D, for every year of the contract term as legislated by C.R.S.29-12.5-101(3)(c), or until such time that the CITY issues a notice to terminate the guarantee and monitoring service. The CITY may terminate the Energy and Cost Savings Guarantee and related Monitoring Fee, as set forth in Section 2.9 and defined in Schedule R, after the first three years of the performance period as legislated by C.R.S.29-12.5-101(3)(c) and this Contract shall terminate and CONTRACTOR shall have no further obligations hereunder. This Energy and Cost Savings Guarantee is achieved as a result of the installation and operation of the Equipment and provision of services provided for in this Contract as specified in Schedule D and in accordance with the Savings Calculation Formula as set forth in Schedule F. The Annual Energy and Cost Savings Guarantee per Schedule C shall not be reduced even in the event of a Material Change per Section 14.1, except as the parties may mutually agree to such a reduction and act in good faith in determining such an agreement. In the event this Contract is terminated due to an uncured Event of Default, as defined in Section 17.1, by the CITY, the Energy and Cost Savings Guarantee shall be cancelled and CONTRACTOR shall have no further obligations hereunder, except to guarantee the CITY the prorated portion of the annual Energy and Cost Savings Guarantee. The prorated portion shall include all Guaranteed Savings incurred prior to the termination date except that such portion should only go up until the Event of Default if the Event is related to the non-payment or other violations impacting the Energy and Cost Savings including but not limited to providing utility bills and access to the Equipment. Actual energy and operations savings achieved by CONTRACTOR through the operation of Equipment and performance of services by CONTRACTOR, including the annual Energy and Cost Savings Guarantee, shall be sufficient to cover any and all annual fees to be paid by the CITY to CONTRACTOR for the provision of services as set forth and in accordance with the provisions of Schedule D. Section 2.4: Allowable Payment Sources The CITY has pre-determined allowable payment sources to be applied to annual payments, may include: Energy and water cost savings; material/commodity savings (including avoided cost from replacement lamps, ballasts, etc.), including scheduled replacement of parts; and other cost savings including maintenance contracts. Section 2.5: Capital Contribution from the Citv The CITY elects to make an initial capital contribution of $785,649 to pay for part of the initial cost as described in Schedule 0. Section 2.6: Indeoendent Monitorin The CITY may hire, with consultation of CONTRACTOR and paid for with guaranteed savings, an independent third party monitor to review the CONTRACTOR's monitoring and verification reports and advise the CITY of compliance in monitoring and verifying savings. The independent monitor's responsibilities could also include verifying the prorated share of Guaranteed Savings in the Event of Contract Termination. Compliance checks will relate to the established baseline described in Schedule E, and the baseline adjustments, monitoring and verification plan, and savings calculations set forth in Schedule F. Section 2.7: Annual Review and Reimbursement/Reconciliation Energy-related cost savings shall be measured and/or calculated as specified in Schedule E and Schedule F and a report provided within ninety (90) days of receipt. of all Needed Data (as defined in Schedule D hereof) for the previous year for each anniversary of the Performance Commencement Date. CONTRACTOR has developed the measurement and verification procedures specified in Schedule F which is based on the ^* International Performance Measurement and Verification Protoco12002. City of Aspen, Colorado Page 8 of 24 Energy Performance Contract Performance Contract In the event the Energy and Cost Savings achieved during such Contract Year is less than the Guaranteed `"" Energy and Cost Savings (as defined in Schedule C hereof), set forth for such year during the years the guarantee is in effect, CONTRACTOR shall pay the CITY an amount equal to the deficiency. If during the Contract Year the Energy and Cost Savings achieved are greater than the Guaranteed Energy and Cost Savings, such excess Energy and Cost Savings shall be retained by the CITY. Section 2.8: Monitoring Information Procedure Energy and Cost Savings shall be calculated annually in the following manner: (i) Each month, by the 10th day after receipt, the CITY shall provide CONTRACTOR with copies of all relevant energy bills received for the preceding month; (ii) Reporting to the CITY is outlined in Schedule D. Section 2.9: Monitoring Fee Throughout the Term of this Contract, or until the Contractor Monitoring Agreement is cancelled by the CITY, the CITY shall pay CONTRACTOR an annual fee according to Schedule D for monitoring the Energy and Cost Savings. Annual guaranteed energy and cost savings achieved shall be sufficient to cover the annual lease payment and any and all fees to be paid to CONTRACTOR pursuant to the provisions of Schedule D. Notwithstanding the provisions in Section(s) 4.1, 4.2 and 4.3 hereof, the CITY shall not be required to begin any Monitoring Fee payments to CONTRACTOR under this Contract unless and until all equipment installation is completed by CONTRACTOR in accordance with the provisions of Article 6 and Article 9, Schedule H and Schedule L, and accepted by the CITY as evidenced by the signed Notice of Substantial Completion as set forth in Exhibit III (ii), and unless and until said equipment is fully and properly functioning in accordance with Schedule A and related details and specifications. Section 2.10: Late Payment Payment during construction will be in accordance with Schedule 0. Payment due during the Performance Period shall be due and payable within forty-five (45) days of the invoice date. Interest shall accrue on Guaranteed Savings not in dispute and rightfully owed for past due balance, owed to the CITY hereunder at the rate of one percent (1%) per month (or the highest rate not prohibited by law, whichever is lower). ARTICLE 3: UTILITY AWARD PAYMENTS Section 3.1: Utility Award Payments Contractor has estimated rebate amounts available from Source Gas (the "Utility'). A portion of the Contract Sum will be subsidized by the Utility (the "Award Payment") upon the Utility's inspection and approval of the work performed. Based upon the reduced energy consumption to be achieved at the Premises and the energy efficient Equipment to be installed, the total Award Payment is as indicated in Schedule 0. This amount has been applied by Contractor in determining the Contract Sum. There shall be no adjustment to the Contract Sum, Guarantee, or Schedule of Values if the Award Payment allowed by the Utility is other than the amount specified herein, unless the disallowance or reduction is attributable to delay caused by neglect or an act of Agency constituting a breach of its obligations under this Contract. Agency understands that Contractor is not a representative or an agent of Source Gas. ARTICLE 4: TIME FOR COMPLETION; COMMENCEMENT DATE; TERM OF CONTRACT Section 4.1: Construction Commencement Date and Time for Completion of Work Work must commence within thirty (30) days of execution of this Contract and shall be completed as set forth in Schedule G. The Time for Completion of Work is of the essence of this Contract. By executing this Contract, the parties hereto confirm the Time of Completion of Work is a reasonable period for performing --- the Work. Except for obligation to make payments of money, CONTRACTOR shall not be responsible for any City of Aspen, Colorado Page 9 of 24 Energy Performance Contract Energy Performance Contract failure to fulfill, or any delay in fulfilling, its obligations hereunder, if such failure or delay is beyond the '"'"'. reasonable ability of such party to control, avoid or mitigate and is due to storm, flood, or other Act of God, or to fire, war, rebellion, scarcity of water, insurrection, riots, strikes (other than strikes directed at subcontractor), or is the result of some order, rule or regulation of any federal, state, municipal, or other governmental City that could not have been reasonably anticipated or that was not scheduled to take effect. Time for Completion of the Work and the costs related thereto shall be extended and modified by Change Order, for such reasonable time and amount as the parties hereto may determine. Change Orders in excess of contingency funds and/or completion date shall not be allowed unless mutually re-negotiated by both parties. Section 4.2: Performance Commencement Date The Performance Commencement Date shall be the first day of the month after the month in which all schedules are in final form and accepted by the CITY and when CONTRACTOR shall have delivered a Notice to the CITY that it has installed and commenced operating all of the Equipment specified in Schedule A and in accordance with the provisions of Article 6 and Schedule H, and the CITY has inspected and accepted said installation and operation as evidenced by the Notice of Substantial Completion as set forth in Exhibit III (ii). Notwithstanding anything to the contrary in Article 2 and Article 4 the Pertormance Commencement Date shall not occur and the CITY shall not be required to accept the work under this Contract unless and until: all Equipment installation for the subject Premises is completed by CONTRACTOR in accordance with the terms and conditions of this Contract. The CITY shall have fifteen (15) days after notification by the CONTRACTOR to inspect and accept the Equipment. The CITY reserves the right to reject the Equipment if installation fails to meet reasonable standards of workmanship, does not comply with applicable building codes, or is otherwise not in compliance with this Contract. CONTRACTOR shall not be paid in full, including retainage, until the Notice of Acceptance and Notice of CONTRACTOR'S Settlement have been issued after the punch list is worked down to less than ten items. The retainage will be released after punch list is completed and CONTRACTOR has satisfied any and all claims for labor and materials. Section 4.3: Performance Term of Contract Unless otherwise terminated pursuant to the terms of this Contract, the Performance Term of this Contract shall begin with the Performance Commencement Date and continue up to a maximum of ten (10) years, as legislated in C.R.S.29-12.5-101(3) (d). This Contract shall be effective and binding upon the parties immediately upon its execution. All energy savings achieved during the Interim Period shall not be applicable to the Guaranteed Savings after the Performance Commencement Date. ARTICLE 5: ENERGY USAGE RECORDS AND DATA Section 5.1: Energy Usage Records and Data The CITY has furnished and shall continue to furnish (or authorize its energy suppliers to furnish) during the Term of this Contract to CONTRACTOR or its designee, upon its request, all of its records and complete data concerning energy and water usage and related maintenance for the Premises. ARTICLE 6: CONSTRUCTION AND INSTALLATION BY CONTRACTOR Section 6.1: Permits and Approvals The CITY shall use its best efforts to assist CONTRACTOR in obtaining all necessary permits and approvals for installation of the Equipment. In no event shall the CITY, however, be responsible for direct payment of any permit or license fee or the delay of any such permit or license fee. As directed by the CITY, design documentation will be submitted to the CITY for review. As deemed necessary by the CITY, design documentation will be forwarded by the CITY to the appropriate code review City of Aspen, Colorado Page 10 of 24 Energy Performance Contract Energy Performance Contract v,.,. ~< contractor for review. The CITY agrees that the CITY's review process at each phase will not be longer than 14 calendar days, not including code review. All costs of code review will be borne by the CITY. Section 6.2: Contractor's Duty of Proper Installation All services called for by this Contract which constitute the "practice of architecture" or the "practice of engineering", as those terms are defined in Title 12, Colorado Revised Statutes, as amended (C.R.S.), shall be performed by properly qualified and licensed professionals employed by CONTRACTOR and shall be performed in accordance with applicable law. CONTRACTOR shall perform all tasks/phases under this Contract, including construction, and shall install the Equipment in such a manner so as not to harm the structural integrity of the buildings or their operating systems and so as to conform to the standards set forth in Schedule I and Schedule G. Section 6.3: Use of Stated Markups In establishing the Contract Sum the CONTRACTOR has used the markups for overhead and profit as disclosed in the CONTRACTOR Proposal (Appendix C), as negotiated in the Contract for Technical Energy Audit and applied to the labor and material costs as shown in Schedule 0. It has also provided a contingency equal to a percentage of the labor, material and direct cost budget. The Contract Sum shall be adjusted based on the actual costs of labor and materials to the CONTRACTOR multiplied by the markups agreed tc by the CONTRACTOR, but in no event shall the Contract Sum be increased. In the event it is possible to reduce the Contract Sum because the actual labor and material costs are less than budgeted, the CITY can, at its sole option, increase the Work to include additional equipment such that the original Contract Sum is reached. If the CITY declines to increase the Work, at its sole option, the Contract Sum shall be reduced to an amount consistent with the pricing using the stated markups and the balance shall be applied to the lease financing amount. Section 6.4: Open Book Pricin¢ Open book pricing will be required, such that the CONTRACTOR will fully disclose all costs. CONTRACTOR will maintain cost accounting records on authorized work performed under actual costs for labor and material, or other basis requiring accounting records. CONTRACTOR will afford the CITY access to these records and preserve them for a period of three (3) years after final payment. Costs will be evaluated through price analysis to compare costs with reasonable criteria such as established catalog and market prices or historical prices. The pricing methodology and individual cost markups disclosed during preliminary contract negotiations will be applied, providing the scope and size of the project remain the same as assumed when markups were disclosed. Section 6.5: Administration The CONTRACTOR's contact person shall forward all communications in writing and all documents to the Principal Representative's contact person as listed below: For the Principal Representative: Jeff Rice The City of Aspen Aspen, Colorado (970) 920-5118 Jeff.Rice@ci.asoen.co.us For the Contractor: Chris Larocque McKinstry Co. 26719 Pleasant Park Rd., Suite 220 Conifer, CO 80433 303-670-1196; x 5001 chrisl@mckinstry.com ARTICLE 7: ENVIRONMENTAL REQUIREMENTS Section 7.1: Excluded Material and Activities The CITY recognizes that in connection with the installation and/or service or maintenance of Equipment at the CITY's Premises, CONTRACTOR may encounter, but is not responsible for, any work relating to (i) City of Aspen, Colorado Page 11 of 24 Energy Performance Contract Energy Performance Contract asbestos, materials containing asbestos, or the existence, use, detection, removal, containment or ^'""^* treatment thereof, or (ii) pollutants, hazardous wastes, hazardous materials, contaminants other than .- those described in this Section below (collectively "Hazardous Materials"), or the storage, handling, use, transportation, treatment, or the disposal, discharge, leakage, detection, removal, or containment thereof. The materials and activities listed in the foregoing sentence are referred to as "Excluded Materials and Activities". The CITY agrees that if performance of work involves any Excluded Materials and Activities, the CITY will pertorm or arrange for the performance of such work and shall bear the sole risk and responsibility therefore. In the event CONTRACTOR discovers Hazardous or Excluded Materials, CONTRACTOR shall immediately cease work, remove all CONTRACTOR personnel or subcontractors from the site, and notify the CITY. The CITY shall be responsible to handle such Materials at its expense. CONTRACTOR shall undertake no further work on the Premises except as authorized by the CITY in writing. Notwithstanding anything in this Contract to the contrary, any such event of discovery or remediation by the CITY shall not constitute a default by the CITY. In the event of such stoppage of work by CONTRACTOR, the Time for Completion of Work will be automatically extended by the amount of time of the work stoppage and any additional costs reasonably incurred by CONTRACTOR as a result will be added by Change Order. CONTRACTOR shall be responsible for any hazardous or other materials, including, without limitation, those listed in this Section 7.1 that it may bring to the Premises. Section 7.2: Polychlorinated Bioheny~PCB) Ballasts: Mercury Lamps CONTRACTOR will enter into an agreement with an approved PCB ballast disposal contractor who will provide an informational packet, packing receptacles and instructions, labels and shipping materials, transportation, and recycling or incineration services for PCB ballasts. All capacitors and asphalt potting compound materials removed from the CITY's PCB ballasts will be incinerated in a federally approved facility. After proper disposal, a Certificate of Destruction will be provided by the approved facility to the CITY. CONTRACTOR'S responsibility shall be for the proper and legal management of any of the CITY'S PCB ballasts removed as a result of the installation of the Equipment and shall be limited only until said PCB ballasts are loaded onto an approved PCB ballast disposal contractor's vehicle for transportation. CONTRACTOR will enter into an agreement with an approved lamp disposal contractor who will provide approved containers, materials required to label, transportation, recycling or incineration in accordance with EPA requirements, and a copy of the manifest. The CITY agrees to sign manifests of ownership for all PCB ballasts and mercury lamps removed from the Premises. ARTICLE 8: ACCEPTANCE TESTING Section 8.1: Modification of Schedules To ensure this Contract properly accounts for as-installed conditions, which conditions may vary from the pre-installation analyses, the CONTRACTOR shall re-validate or modify Schedule A and Schedule H prior to System Start-Up. Section 8.2: Systems Startup and Equipment Commissioning. The CONTRACTOR shall conduct a thorough and systematic performance test of each element and total system of the installed Equipment in accordance with the procedures specified in Schedule H and prior to acceptance of the project by the CITY as specified in Exhibit III (ii). Testing shall be designed to determine if the Equipment is functioning in accordance with both its published specifications and the Schedules to this Contract, and to determine if modified building systems, subsystems or components are functioning properly within the new integrated environment. The CONTRACTOR shall provide notice to the CITY of the scheduled test(s) and the CITY and/or its designees shall have the right to be present at any or all such ..~y tests conducted by CONTRACTOR and/or manufacturers of the Equipment. The CONTRACTOR shall be City of Aspen, Colorado Page 12 of 24 Energy Performance Contract Performance Contract responsible for correcting and/or adjusting all deficiencies in the Equipment operation that may be °- observed during system commissioning procedures of Schedule H. The CONTRACTOR shall be responsible for correcting and/or adjusting all deficiencies in Equipment operation that may be observed during system testing procedures. Prior to the CITY acceptance CONTRACTOR shall also provide the CITY with reasonably satisfactory documentary evidence that the Equipment installed is the Equipment specified in Schedule A. ARTICLE 9: MAINTENANCE/MONITORING Section 9.1: Ownership of Certain Proorietary Prooertv Ri¢hts CONTRACTOR shall obtain for and on behalf of the CITY licenses to use all such intellectual property reasonably necessary for the utilization and operation of the Equipment, but the CITY shall not, by virtue of this Contract, acquire any ownership interest in any formulas, patterns, devices, secret inventions or processes, copyrights, patents, other intellectual or proprietary rights, or similar items of property which are or may be used in connection with the Equipment. The CITY shall, however, have a nonexclusive license to utilize all such intellectual or proprietary rights obtained by CONTRACTOR related to Equipment in connection with its use of the Equipment under this Contract. The CONTRACTOR hereby grants to the CITY a perpetual, irrevocable, royalty-free license to any and all software or other intellectual property or proprietary rights it obtains from Equipment manufacturers necessary for the CITY to continue to operate, maintain, and repair the Equipment in a manner that will yield maximal energy consumption reductions. This license shall continue subsequent to any termination or expiration of this Contract other than termination due to breach by the CITY. Section 9.2: Ownership of Documents 9.2.1 Instruments of Service Drawings, specifications and other documents, including those in electronic form, prepared by the CONTRACTOR and the CONTRACTOR'S consultants are Instruments of Service for use solely with respect to this Project. The CONTRACTOR and the CONTRACTOR's consultants shall be deemed the authors and owners of their respective instruments of service and shall retain all common law, statutory and other reserved rights, including copyrights. Upon execution of this Contract, the CONTRACTOR hereby grants to the City a perpetual nonexclusive license to reproduce and use, and permit others to reproduce and use for the City, the CONTRACTOR'S Instruments of Service solely for purposes of constructing, using and maintaining the Project or for future alterations, or additions to the Project. The CONTRACTOR shall obtain similar nonexclusive licenses from the CONTRACTOR'S consultants consistent with this Contract. If, and upon the date the CONTRACTOR is adjudged in default of this Contract, the foregoing license shall be deemed terminated and replaced by a second, nonexclusive license permitting the City to authorize other similarly credentialed design professionals to reproduce and, where permitted by law, to make changes, corrections or additions to the Instruments of Service solely for purposes of completing, using and maintaining the Project, or for future alterations, or additions to the Project. Any unilateral use by the City of the Instruments of Service for completing, using, maintaining, adding to or altering the Project or facilities shall be at the City's sole risk and without liability to the CONTRACTOR and the CONTRACTOR'S consultants; provided, however, that if the City's unilateral use occurs for completing, using or maintaining the Project as a result of the CONTRACTOR's breach of this Contract, nothing in this Article shall be deemed to relieve the CONTRACTOR of liability for its own acts or omissions or breach of this Contract. 9.2.2 As-Built Drawings/Record Drawings The CONTRACTOR and its consultants shall, upon completion of the Construction Phase receive redline As-Built Drawings from the CONTRACTOR. These redline changes shall describe the built condition of the Project. This information and all of the incorporated changes directed by Bidding Addenda, Change Order/Amendment or CONTRACTOR'S Supplementary Instructions shall be incorporated by the CONTRACTOR and its consultants into a Record Drawings document provided to the ,. , City of Aspen, Colorado Page 13 of 24 Energy Performance Contract Performance Contract Principal Representative in the form of an electro-media format and a reproducible format as agreed between the parties. The CONTRACTOR shall also provide the Principal Representative with the As-built Drawings received from the CONTRACTOR. Section 9.3: Ownershio of Existing Equipment Ownership of the equipment and materials existing at the Premises at the time of execution of this Contract shall remain the property of the CITY even if it is replaced or its operation made unnecessary by work performed by CONTRACTOR pursuant to this Contract. If applicable, CONTRACTOR shall advise the CITY in writing of all equipment and materials to be replaced at the Premises and the CITY shall within fifteen (15) days designate in writing to the CONTRACTOR which equipment and materials should not be disposed of off-site by the CONTRACTOR. It is understood and agreed to by both Parties that the CITY shall be responsible for and designate the location and storage for any equipment and materials that should not be disposed of off-site. Except as may be otherwise provided in this Contract, the CONTRACTOR shall be responsible for the disposal of all equipment and materials designated by the CITY as disposable off-site in accordance with all applicable laws and regulations regarding such disposal. Except as indicated in Section 7.1 and Section 7.2, under no circumstance shall CONTRACTOR be obligated to dispose of or take responsibility for any materials identified in Section 7.1 or Section 7.2 of this Contract. Section 9.4: Ownership of Measurement and Verification Eauioment. CONTRACTOR agrees to own the equipment required to provide the ongoing measurement of energy and water savings (the "Metering Equipment"). If required, The CITY shall provide and maintain anon- dedicated telephone line to facilitate remote monitoring of the Equipment. ARTICLE 10: STANDARDS OF COMFORT Section 10.1: Standards of Comfort. CONTRACTOR will design and install the Equipment so that it is able to provide the standards of heating, "'~ cooling, ventilation, hot water supply, lighting quality and levels described in Schedule I. During the term of this Contract, CONTRACTOR and the CITY will maintain, according to Schedule D, Schedule J and Schedule K, and operate the Equipment in a manner that will provide the standards of comfort and levels of operation as described in Schedule I. ARTICLE 11: EQUIPMENT WARRANTIES Section 11.1: Equipment Warranties CONTRACTOR warrants that all equipment sold and installed as part of this Contract is new, unless otherwise agreed, will be materially free from defects in materials or workmanship, will be installed properly in a good and workmanlike manner, and will function properly for a period of one (1) year from the date of the Substantial Completion for the particular energy conservation measure if operated and maintained in accordance with the procedures established per building. Substantial Completion shall be defined as the stage in the progress of the Work where the Work is sufficiently complete in accordance with the Contract Documents so that the CITY can utilize and take beneficial use of the Work for its intended use or purpose. Substantial Completion does not occur until the Equipment or system has been commissioned, accepted, and the "Substantial Completion" form fully executed. After the warranty period, CONTRACTOR shall have no responsibility for performing maintenance, repairs, or making manufacturer warranty claims relating to the Equipment, except as provided in Schedule D and Schedule J. CONTRACTOR further agrees to assign to the CITY all available manufacturer's warranties relating to the mow, Equipment and to deliver such written warranties and which shall be attached and set forth as Exhibit IV; ,., City of Aspen, Colorado Page 14 of 24 Energy Performance Contract Energy Performance Contract pursue rights and remedies against the manufacturers under the warranties in the event of Equipment ~'° malfunction or improper or defective function, and defects in parts, workmanship and performance. CONTRACTOR shall, during the warranty period, notify the CITY whenever defects in Equipment parts or performance occur, which give rise to such rights and remedies and those rights and remedies are exercised by CONTRACTOR. During this period, the cost of any risk of damage or damage to the Equipment and its performance, including damage to property and equipment of the CITY or the Premises, due to CONTRACTOR'S failure to exercise its warranty rights shall be borne solely by CONTRACTOR. All warranties, to the extent transferable, shall be transferable and extend to the CITY. The warranties shall specify that only new, not reconditioned, parts may be used and installed when repair is necessitated by malfunction. Notwithstanding the above, nothing in this Section shall be construed to alleviate/relieve the CONTRACTOR from complying with its obligations to perform under all terms and conditions of this Contract and as set forth in all attached Schedules. Section 11.2: Actions by Contractor Incorporated herein by reference Schedule D, Schedule J and Schedule N. Section 11.3: Malfunctions and Emer encies The CITY shall use its best efforts to notify the CONTRACTOR or its designated subcontractor within twenty- four (24) hours after the CITY'S actual knowledge and occurrence of: (i) any malfunction in the operation of the Equipment or any preexisting energy related equipment that might materially impact upon the Energy Savings or Energy Savings Guarantee, (ii) any interruption or alteration to the energy supply to the Premises, or (iii) any alteration or modification in any energy-related equipment or its operation. Where the CITY exercises due diligence in attempting to assess the existence of a malfunction, interruption, or alteration it shall be deemed not at fault in failing to correctly identify any such conditions as having a material impact upon the savings. The CITY shall notify CONTRACTOR within twenty-four (24) hours upon its having actual knowledge of any emergency condition affecting the Equipment. If such malfunction, interruption, or alteration occurs during the Warranty Period, CONTRACTOR shall respond to any such notice within twenty-four (24) hours for non-critical equipment, and eight (8) hours for critical equipment, and shall promptly thereafter proceed with corrective measures. Any telephonic notice of such conditions by the CITY shall be followed within three business days by written notice to CONTRACTOR from the CITY. If the CITY unreasonably delays in so notifying CONTRACTOR of a malfunction or emergency, and the malfunction or emergency is not otherwise corrected or remedied, CONTRACTOR may charge the CITY for its loss, due to the delay, associated with the guaranteed savings under this Contract for the particular time period, provided that CONTRACTOR is able to show the direct causal connection between the delay and the loss. The CONTRACTOR will provide a written record of all service work performed. This record will indicate the reason for the service, description of the problem and the corrective action performed. Section 11.4: Actions by The Citv During the term of this Contract, the CITY shall not move, remove, modify, alter, or change in any way the Equipment or any part thereof without the prior written approval of CONTRACTOR except as set forth in Schedule K. Notwithstanding the foregoing, the CITY may take reasonable steps to protect the Equipment if, due to an emergency, it is not possible or reasonable to notify CONTRACTOR before taking any such actions. In the event of such an emergency, the CITY shall take reasonable steps to protect the Equipment from damage or injury. The CITY agrees to maintain the Premises in good repair and to protect and preserve all portions thereof, which may in any way affect the operation or maintenance of the Equipment, all in accordance with the same standard of care the CITY applies to the Premises generally, that of a reasonably prudent government owner. City of Aspen, Colorado Page 15 of 24 Energy Performance Contract Performance Contract ARTICLE 12: MODIFICATION, UPGRADE OR ALTERATION OF EQUIPMENT Section 12.1: Modification of Equipment During the Term of this Contract, the CITY will not, without the prior written consent of CONTRACTOR, affix or install any accessory Equipment or device on any of the Equipment if such addition will change or impair the originally intended functions, value or use of the Equipment without CONTRACTOR'S prior written approval, which shall not be unreasonably withheld. Section 12.2: Upgrade or Alteration of Equipment CONTRACTOR shall at all times have the right, subject to the CITY'S prior written approval, which approval shall not be unreasonably withheld, to change the Equipment, revise any procedures for the operation of the Equipment or implement other energy saving actions in the Premises, provided that: (i) the CONTRACTOR complies with the standards of comfort and services set forth in Schedule I herein; (ii) such modifications or additions to, or replacement of the Equipment, and any operational changes, or new procedures are necessary to enable the CONTRACTOR to achieve greater energy and cost savings at the Premises and; (iii) any cost incurred relative to such modifications, additions or replacement of the Equipment, or operational changes or new procedures shall be the responsibility of the CONTRACTOR. All modifications, additions or replacements of the Equipment or revisions to operating or other procedures shall be described in a supplemental Schedule(s) to be provided to the CITY for approval, which shall not be unreasonably withheld, provided that any replacement of the Equipment shall, unless otherwise agreed, be new and have equal or better potential to reduce energy consumption at the Premises than the Equipment being replaced. The CONTRACTOR shall update any and all software necessary for the operation of the Equipment in accordance with the provisions of Schedule J. All replacements of and alterations or additions to the Equipment shall become part of the Equipment described in Schedule A and shall be covered by the provisions and terms of Article 6 and Article 8. ARTICLE 13: LOCATION AND ACCESS Section 13.1: Contractor Access CONTRACTOR acknowledges that there exists sufficient space on the Premises for the installation and operation of the Equipment. The CITY shall take reasonable steps to protect such Equipment from harm, theft and misuse during the term of this Contract. The CITY shall provide access to the Premises for CONTRACTOR to perform any function related to this Contract during regular business hours, or such other reasonable hours as may be requested by CONTRACTOR and acceptable to the CITY. CONTRACTOR shall be granted immediate access to make emergency repairs or corrections as it may, in its discretion, determine are needed. CONTRACTOR's access to the Premises to make emergency repairs or corrections as it may determine are needed shall not be unreasonably restricted by the CITY. CONTRACTOR shall immediately notify the CITY when emergency action is taken and follow up with written notice with three (3) business days specifying the action taken, the reasons therefore, and the impact upon the Premises, if any. To facilitate the intent of this Section 13.1, 2., CONTRACTOR may, at the sole discretion of the CITY, be issued both outside and inside door keys appropriate to the area of necessary access. In the event keys are issued, CONTRACTOR accepts and assumes the following obligations and responsibilities: To supervise individuals and activities within the building or area(s) accessible via the key(s) authorized when the CONTRACTOR has unlocked such building or area(s), and to limit activities to the CONTRACTOR'S authorized area, and the nearby hallways and bathrooms; City of Aspen, Colorado Page 16 of 24 Energy Performance Contract Energy Performance Contract b. To re-lock such building or area(s) after the CONTRACTOR's use is completed, and after clearing such building or area(s) of all unauthorized individuals; and c. In the event the key(s) issued to the CONTRACTOR is/are lost or stolen, to reimburse the CITY for all the CITY's actual costs incurred to re-key the locks on such building or area(s), including but not limited to the cost to change or modify the locks and issue replacement keys to all authorized personnel. CONTRACTOR understands that, in the event of any loss to the CITY or any student, or other person due to theft, vandalism, or any other destructive acts or damages caused by anyone who gains access to such building or area(s) opened or left unlocked by the CONTRACTOR, the CITY will refer the matter to its insurance carrier, and the insurance carrier may pursue reimbursement from the CONTRACTOR if it is determined that the CONTRACTOR breached any provision of this Authorization or was otherwise at fault in the matter. CONTRACTOR shall report lost or stolen CITY keys immediately to the Superintendent or Superintendent's administrative assistant. CONTRACTOR shall not duplicate any CITY key(s). CONTRACTOR shall return all key(s) to the office of the Superintendent as soon as CONTRACTOR no longer needs the key(s) for purposes of this Contract. Section 13.2: Utility Access If a Utility Award Payment is made as described in Article 3 (Utility Award Payments), the following applies. Upon request by the Utility (or its agent) and with prior consent of the CITY which consent shall not be unreasonably withheld, the CITY shall agree to allow Utility to interview the CITY and to enter the Premises at reasonable times throughout the life of the installed equipment to install metering equipment, perform energy audits or inspect the facilities and any equipment installed. The CITY also agrees to cooperate with the Utility or its agent upon request and with prior consent of the CITY, in conducting such activities and/or in analyzing energy savings. At all times a representative of the CITY (or its agent) shall be present during such inspections. ARTICLE 14: MATERIAL CHANGES Section 14.1: Material Change Defined A Material Change shall include any change or cumulative changes in or to the Premises, whether structural, operational or otherwise in nature which reasonably could be expected, in the judgment of the CITY, to increase or decrease annual energy consumption in accordance with the provisions and procedures set forth in Schedule E and Schedule F after adjustments for climatic variations and provided a correlation exists between usage and Material Change. Actions by the CITY that may result in a Material Change include but are not limited to the following: (i) manner of use of the Premises by the CITY; or (ii) hours of operation for the Premises or for any equipment or energy using systems operating at the Premises; or (iii) permanent changes in the comfort and service parameters set forth in Schedule I; or (iv) occupancy of the Premises; or (v) structure of the Premises; or (vi) types and quantities of equipment used at the Premises or (vii) modification, renovation or construction at the Premises; or (viii) the CITY's failure to provide maintenance of and repairs to the Equipment in accordance with Schedule K; or (ix) casualty or condemnation of the Premises or Equipment, or (x) changes in utility provider or utility rate classification, or (xi) any other conditions other than climate affecting energy or water use at the Premises. City of Aspen, Colorado Page 17 of 24 Energy Performance Contract Energy Performance Contract Section 14.2: Reported Material Changes: Notice by The City The CITY shall use its best efforts to deliver to the CONTRACTOR a written notice describing all actual or proposed Material Changes in the Premises or in the operations of the Premises at least 14 days before any actual or proposed Material Change is implemented or as soon as is practicable after an emergency or other unplanned event. Notice to the CONTRACTOR of Material Changes which result because of a bona fide emergency or other situation which precludes advance notification shall be deemed sufficient if given by the CITY within five (5) business days after having actual knowledge that the event constituting the Material Change occurred or was discovered by the CITY to have occurred. Section 14.3: Other Adjustments As agreed in Section 16.1 the CITY will alert CONTRACTOR of materials changes as known. Both parties have a vested interest in meeting the guaranteed savings of the Contract. As such, the CONTRACTOR will work with the CITY to investigate, identify and correct any changes that prevent the guaranteed savings from being realized. As a result of such investigation, CONTRACTOR and the CITY shall determine what, if any, adjustments to the baseline will be made in accordance with the provisions set forth in Schedule F and Schedule E. ARTICLE 15: TRAINING AND FOLLOW-UP ACTIVITIES BY CONTRACTOR Section 15.1: Trainin The CONTRACTOR shall conduct the training program described in Schedule M. Appropriate training must be completed prior to acceptance of the Equipment installation. The CONTRACTOR shall provide ongoing training whenever needed with respect to updated or altered Equipment, including upgraded software. Such training shall be provided at no charge to the CITY. Section 15.2: Aoolication for Energy Star or LEED The CONTRACTOR shall conduct an Energy Star benchmarking study for each facility and apply for an '~'! Energy Star Label on behalf of the CITY for all buildings that meet or exceed the necessary requirements `""` for the Energy Star Label. CONTRACTOR shall use the US Green Building Council's Leadership in Energy and Environmental Design (LEED) approach and apply for LEED certification where deemed applicable. Section 15.3: Emissions Reductions Documentation and Reporting The CONTRACTOR shall include emissions reductions quantities in each annual report and advise the CITY on opportunities to achieve monetary benefit from such credits. ARTICLE 16: GENERAL CONTRACTUAL PROVISIONS Section 16.1: Additional Insurance Requirements-Professional Liabili Insurance CONTRACTOR promises and agrees to maintain in full force and effect, an Errors and Omissions Professional Liability Insurance Policy in the amounts indicated in the following table as minimum coverage. The policy, including claims made forms, shall remain in effect for the duration of the Interim Period and for at least three years beyond the completion and acceptance of the Equipment. The CONTRACTOR shall be responsible for all claims, damages, losses or expenses, including attorney fees, arising out of or resulting from the performance of professional services contemplated in this Contract, provided that any such claim, damage, loss or expense is caused by any negligent act, error or omission of the CONTRACTOR, any consultant or associate thereof, or anyone directly or indirectly employed by the CONTRACTOR. The CONTRACTOR shall submit a Certificate of Insurance verifying said coverage at the signing of this Contract and also any notices of renewals of Renewals of the said policy as they occur. City of Aspen, Colorado Page 18 of 24 Energy Performance Contract Performance Contract For a Fixed Limit of Construction Cost Minimum Coverage per Claim Minimum Coverage in the re to $999,999 and under $250,000 $500,000 $1,000,000 to $4,999,999 $500,000 $1,000,000 $5,000,000 to $19,999,999 $1,000,000 $2,000,000 $20,000,000 and Above $2,000,000 $2,000,000 ARTICLE 17: EVENTS OF DEFAULT Section 17.1: Events of Default by the Citv Each of the following events or conditions shall constitute an "Event of Default" by the CITY: (i) any failure by the CITY to pay CONTRACTOR any sum due that is not in dispute, hereunder for a service and maintenance period of more than thirty (30) days after written notification by CONTRACTOR that the CITY is delinquent in making payment; (ii) any other mutually determined material failure by the CITY to perform or comply with the terms and conditions of this Contract, including breach of any covenant contained herein, provided that such failure continues for thirty (30) days after notice in writing to the CITY demanding that such mutually determined failures to perform be cured or if such cure cannot be effected in such forty-five (45) days, the CITY shall be deemed to have cured default upon the commencement of a cure within such forty-five (45) days and diligent subsequent completion thereof; (iii) any representation or warranty furnished by the CITY in this Contract that was false or misleading in any material respect when made. Section 17.2: Events of Default by Contractor Each of the following events or conditions shall constitute an "Event of Default" by CONTRACTOR: (i) the standards of comfort and service set forth in Schedule I are not provided due to failure of CONTRACTOR to properly design, install, maintain, repair or adjust the Equipment except that such failure, if corrected or cured within twenty-one (21) days after written notice by the CITY to CONTRACTOR demanding that such failure be cured, shall be deemed cured for purposes of this Contract. The parties recognize that a correction may appear to have "cured" the failure but problems may occur subsequently, resulting in another written notice and demand. Therefore, the parties agree that any failure that occurs after CONTRACTOR has attempted to cure the same failure three times shall be considered an Event of Default, and the CITY shall have no further obligation to provide written notice and demand. (ii) any representation or warranty furnished by CONTRACTOR in this Contract is false or misleading in any material respect when made; (iii) provided that the operation of the facility is not adversely affected and provided that the Standards of Comfort in Schedule I are maintained, any failure by CONTRACTOR to perform ... ~ or comply with the terms and conditions of this Contract, including breach of any covenant .,,„, contained herein except that such failure, if corrected or cured within thirty (30) days after City of Aspen, Colorado Page 19 of 24 Energy Performance Contract Performance Contract written notice to CONTRACTOR demanding that such failure to perform be cured, shall be deemed cured for purposes of this Contract; (iv) any lien or encumbrance upon the equipment by any subcontractor, laborer or materialman of CONTRACTOR which is not released in thirty days after notice of said filing; (v) the filing of a bankruptcy petition whether by CONTRACTOR or its creditors against CONTRACTOR which proceeding shall not have been dismissed within 90 days of its filing, or an involuntary assignment for the benefit of all creditors or the liquidation of CONTRACTOR. (vi) failure by the CONTRACTOR to pay any amount due that is not in dispute, or perform any material obligation under the terms of this Contract, unless such amount due or failure to perform is excused pursuant to the provisions of this Contract. ARTICLE 18: ASSIGNMENT Section 18.1: Assignment by Contractor The CONTRACTOR acknowledges that the CITY is induced to enter into this Contract by, among other things, the professional qualifications of the CONTRACTOR. The CONTRACTOR agrees that except as set forth below, neither this Contract nor any right or obligations hereunder may be assigned in whole or in part to another firm, without the prior written approval of the CITY. (i) The CONTRACTOR agrees that except as provided below, neither this Contract nor any right of obligations hereunder may be assigned in whole or in part to another firm, without the prior written approval of the CITY. (ii) The assignment of this Contract, in whole or in part, within the Enterprise of which CONTRACTOR is a par[ does not require the consent of the other party. Section 18.2: Assignment by The Citv The CITY may transfer or assign this Contract and its rights and obligations herein to a successor or purchaser of the Premises or an interest therein with the consent of CONTRACTOR, which shall not be unreasonably withheld. The lack of financial qualification of the new owner shall be grounds for withholding such consent. ARTICLE 19: REPRESENTATIONS AND WARRANTIES Section 19.1: General Representations and Warranties Each party warrants and represents to the other that: (i) it has all requisite power, authority, licenses, permits, and franchises, corporate or otherwise, to execute and deliver this Contract and perform its obligations hereunder; (ii) its execution, delivery, and performance of this Contract will not result in a breach or violation of, or constitute a default under any Contract, lease or instrument to which it is a party or by which it or its properties may be bound or affected. City of Aspen, Colorado Page 20 of 24 Energy Performance Contract Energy Performance Contract ARTICLE 20: ADDITIONAL REPRESENTATIONS OF THE PARTIES ~~ Section 20.1: By the Citv The CITY hereby warrants, represents and promises that: (i) The CITY is authorized under the Constitution and laws of the State of Colorado to enter into this Contract, each transaction contemplated hereby, and to perform all of its obligations underthis Contract. (ii) Subject to the provisions contained herein, the CITY has provided or shall provide timely to CONTRACTOR, all records relating to energy and water usage and energy-related maintenance of Premises requested by CONTRACTOR and the information set forth therein is, and all information in other records to be subsequently provided pursuant to this Contract will be true and accurate in all material respects and CONTRACTOR shall be entitled to rely thereon; and (iii) The CITY has not entered into any prior leases, contracts or agreements with other persons or entities regarding the leasing or acquisition of water or energy efficiency equipment or the provision of energy management services for the Premises or with regard to servicing any of the Equipment located in the Premises that would encroach upon the scope of this Contract. The CITY shall provide CONTRACTOR with copies of any successor or additional leases of energy efficiency equipment and contracts for management or servicing of preexisting equipment at Premises that may be executed from time to time hereafter within seven days after execution thereof. Section 20.2: By Contractor CONTRACTOR hereby warrants, represents and promises that: (i) before commencing performance of this Contract: a. CONTRACTOR shall have become licensed or otherwise permitted to do business in the State of Colorado b. CONTRACTOR shall have provided proof and documentation of all required insurance and bonds pursuant to this Contract. (ii) CONTRACTOR shall make available, upon reasonable request, documents relating to its performance under this Contract, including contracts and subcontracts it shall enter into; (iii) CONTRACTOR shall use subcontractors who are qualified, licensed and bonded in this State to perform the work so subcontracted pursuant to the terms hereof; (iv) CONTRACTOR has all requisite authority to license the use of proprietary property, both tangible and intangible, contemplated by this Contract; (v) The Equipment will meet or exceed the Acceptance Testing Standards set forth in this Contract. (vi) The Equipment is or will be compatible with all other Premises mechanical and electrical systems, subsystems, or components with which the Equipment interacts, and that, as installed, neither the Equipment nor such other systems, subsystems, or components will materially adversely affect each other as a direct or indirect result of Equipment installation or operation; (vii) That CONTRACTOR is financially solvent, able to pay its debts as they mature and ^""~ possessed of sufficient working capital to complete the Installation and perform its ~ obligations under this Contract. City of Aspen, Colorado Page 21 of 24 Energy Performance Contract Performance Contract (viii) CONTRACTOR shall pay royalties and license fees for patented or copyrighted designs, processes or products incorporated into the work required under this Contract, and further agrees to defend, indemnify and hold CITY harmless from all suits or claims for infringement of any patent rights or copyrights arising therefrom. CONTRACTOR will not be liable for indemnification under this section provided that any vendor of software or other intellectual property agrees in writing to indemnify the CITY against any infringement claims pertaining to such software or other intellectual property. ARTICLE 21: MISCELLANEOUS DOCUMENTATION PROVISIONS Section 21.1: Waiver of Liens. Performance Bonds. Labor and Material Payment Bonds Such executed bonds are incorporated herein by reference as Exhibit I (Pertormance Bond) and Exhibit II (Labor and Material Payment Bond). Section 21.2: Further Documents The parties shall execute and deliver all documents and perform all further acts that may be reasonably necessary to effectuate the provisions of this Contract. Section 21.3: The CIN's Resoonsibilities (a) Methods of Operation by The Citv The parties acknowledge and agree that said Energy and Cost Savings would not likely be obtained unless certain procedures and methods of operation designed for energy and water conservation shall be implemented, and followed by the CITY on a regular and continuous basis. (b) The Citv Maintenance Resoonsibilities The CITY agrees that it shall adhere to, follow and implement the energy conservation procedures and methods of operation to be set forth on Schedule K, to be attached hereto and made a part hereof after the CITY's approval, such approval not to be unreasonably withheld, conditioned or delayed. (c) Inspection of Premises The CITY agrees that CONTRACTOR shall have the right once a month, with prior notice, to inspect Premises to determine if the CITY is complying, and shall have complied with its obligations as set forth in Section 21.3(b). For the purpose of determining the CITY's said compliance, the checklist to be set forth at Schedule L as completed and recorded by CONTRACTOR during its monthly inspections, shall be used to measure and record the CITY's said compliance. The CITY shall make the Premises available to CONTRACTOR for and during each monthly inspection, and shall have the right to witness each inspection and CONTRACTOR's recordation on the checklist. The CITY may complete its own checklist at the same time. CONTRACTOR agrees to not interfere with the CITY operations during any monthly inspection. ARTICLE 22: CONFLICTS OF INTEREST Section 22.1: Conflicts of Interest Conflicts of interest relating to this Contract are strictly prohibited. Except as otherwise expressly provided herein, neither party hereto nor any director, employee or agent of any party hereto shall give to or receive from any director, employee or agent of any other party hereto any gift, entertainment or other favor of significant value, or any commission, fee or rebate in connection with this Contract. Likewise, neither party ,,.1 hereto nor any director, employee or agent of either party hereto, shall without prior notification thereof to City of Aspen, Colorado Page 22 of 24 Energy Performance Contract Performance Contract the other party enter into any business relationship with any director, employee or agent of the other party `"" or of any affiliate of the other party, unless such person is acting for and on behalf of the other party or any such affiliate. A party shall promptly notify the other party of any violation of this section and any consideration received as a result of such violation shall be paid over or credited to the party against whom it was charged. Any representative of any party, authorized by that party, may audit the records of the other party related to this Contract, upon reasonable notice and during regular business hours including the expense records of the party's employees involved in this Contract, upon reasonable notice and during regular business hours, for the sole purpose of determining whether there has been compliance with this section. ARTICLE 23: CONTRACT DOCUMENTS Section 23.1: Plan Details CONTRACTOR prepared a complete Technical Energy Audit which has been approved and accepted by the CITY as set forth in Exhibit III (i) (Notice of Acceptance -Technical Energy Audit and Monitoring and Verification Plan. Section 23.2: General Conditions General Conditions attached hereto as Schedule N shall be incorporated and made a part hereof. Section 23.3: Order of Precedence The provisions of this Contract and the attached Schedules, Exhibits and Appendices shall govern in the event of any inconsistencies between the Technical Energy Audit and the provisions of this Contract. In the event of conflicts or inconsistencies between this Contract and its Schedules, Exhibits or Appendices, such conflicts or inconsistencies shall be resolved by reference to the documents in the following order of priority: a) Contract body, b) Schedule, c) Schedules/Exhibits/Appendices. In the event of any conflicts between Schedule C and other parts of this Contract regarding Energy and Water Cost Savings calculations or measurement of the guarantee, Schedule C shall govern. Section 23.4: Facsimile Signatures Parties agree that facsimile signatures shall be accepted as originals. City of Aspen, Colorado Page 23 of 24 Energy Performance Contract Perto~Contract THE P~Eg HERETO I~LgyE D<EC ^~O TH ~ CONmerr ~ "' CO-YiRACT'OR: McKlns try Essentlon, Inc. McKinstry Essention - q~ - Zo 5s~~ oaa ecurity Number or FEIN Sig ~~ture ofA~zed~~ //~~~~~ ~6 l-~a,a ~- }~~Y>~as. of ~~Kc print Name & le of uthorized Officer City of Aspen, Colorado Energy Pertormance Contract The City of Aspen, Colorado ~ ~~ City M ager Date ~ 'Z. # (J Page 24 of 24 SCHEDULE A: ,,,. EQUIPMENT TO BE INSTALLED BY CONTRACTOR The following is a brief summary of the measures to be Installed under this Contract: FIM # 2.0 Lighting Upgrades FIM # 3.0 Vending Misers FIM # 6.1 Programmable Thermostats in the Rio Grende Building FIM # 19.2 Programmable Thermostats in the Red Brick Building FIM #21.1 Retro~ommission the Yellow Brick Building FIM #35.1 Custom low Profile Tank Covers FIM #46.1 Window Upgrades at Streets FIM #49.1 VFDs on Pool Pumps at ARC CONTRACTOR shall provide each and every Item of cost and expense necessary for the following Facility Improvement Measures (FIMs) unless otherwise expressly provided herein. DETAILED SCOPE OF WORK Hereinafter the Detailed Scope of Work shall be referred to as the Work. FlM 2.0 Lighting Upgrades CONTRACTOR shall provide all material, components and labor for the complete installation, retrofit and replacement of the specific lighting systems shown on the following room-by- room scope. Work shall include disposal of removed material including mercury containing lamps and PCB containing ballasts. In areas where light fixtures are only being retrofit work performed shall be considered a Ilke-kind replacement and CONTRACTOR guarantees that light levels in areas containing the fixtures will not be reduced below pre-retrofit levels but cannot guarantee that all areas will meet the standards set by the Illuminating Engineering Society of North America (IESNA). In areas where fixtures are being replaced with new energy efficient fixtun:s and where fixtures are being de-tamped, CONTRACTOR guarentees that the Ilght levels in the areas containing the fixtures will meet the standards set by the IESNA. Occupancy sensors will be installed in areas shown in the following room-by-room scope. See Appendix D for complete room-by-room scope. FlM 3.0 Vending Misers Currently, there are three (3) refrigereted beverage vending machines in the City of Aspen that are not Energy Star reted or do not have Vending Miser units installed. One is located at City Hall and the other two are at the Golf Clubhouse. McKlnstry shall Install three (3) USA Technologies VM170 on the three (3) refrigerated vending machines; one in City Hall and two at the Golf Clubhouse. FlM 6.1 Programmable Thermostats In the Rlo Grande Bulkting McKlnstry will Install two (2) 5/2 day programmable thermostats and one (1) 7-day programmable thermostat in the Rio Grende Building. The thermostats are being donated by Source Gas. McKlnstry will install and program the thermostats and provide training to City staff. FlM 19.2 Programmable Thermostats In the Red Brkk Building McKlnstry will install twenty (20) 7-day programmable thermostats in the Red Brick Building. The thermostats are being donated by Source Gas. McKlnstry will Install and program the ~.. thermostats and provide training to City staff. City of Aspen, Coloredo Page 1 of 6 Schedule A: Equipment to be Installed by Contractor FlM 2i1 Retro~Commlalon theYellow Brk:k Building ,,, It is recommended that a retrocommissioning study be performed to improve the function of existing system, verify proper operation of outside air dampers and demand controlled ventilation, calibrate COz sensors and optimize the space heating hot water system. Systems To Be Included: The following systems will be included in the scope of the retrocommissloning: • Building automation system, Including controlled devices, sensors, control loops, and logic • Cooling systems • Terminal units • Central bolter plant • Primary heating systems • Fire safety /smoke purge aspects of the HVAC system • Domestic hot water equipment • Building pressurization controls Project Step Phase I: 1. Review existing systems and related documentation 2. Develop recommissloningpian 3. Perform calibretion and maintenance checks 4. Implement diagnostic monitoring/ trending 5. Perform functional tests 6. Analyze the monitoring/ trending and test data 7. Assess and document the current operating strategies and sequences of operation for all systems and equipment Included 8. Document 0&M Improvement opportunities 9. Calculate energy impacts and develop implementation cost estimates for 0&M opportunities 10. Submit energy calculations for guaranteed energy savings to City of Aspen for approval 11. Develop and deliver the final retracommissioningstndy 12. Include cost~ffective measures in final proposal with other opportunities identified during the Technical Energy Audit. Phase II: 1. Review retrocommissioning investigation with Owner 2. Decide which measures to Implement a. The cost of implementing measures necessary to achieve the guaranteed savings is included in quoted price. b. Implementation costs for measures that are identified by the study that provide additional savings (above and beyond the savings guarentee) are not Included in the price. However, estimated costs and savings will be provided to the City to aid in making decisions about further investments. 3. Create implementation plan for each selected measure 4. Implement measures 5. Measurement and verification .•+* City of Aspen, Colorado Page 2 of 6 Schedule A: Equipment to be Installed by Contractor - FlM 35.1 Custom Low Profile Tank Covers u GENERAL: A. Electrical a) Provide and install all labor and material to Install flue 2-lamp wet location fluorescent light fixtures that each contain 2-32 watt 7-8 lamps and electronic ballasts. b) Install an occupancy sensor to control the light fixtures. B. Structural 1. Design low profile tank cover to withstand 75psf snow load. C. Specialty 1. Provide and install a low profile tank cover over each clarifying tank that has a self closing door that is at least 7' high to allow for access to service gangway. 2. The highest point of the tank cover shall be no higher than 8 feet above the service gangway. EXCLUSIONS A. Hazardous material abatement. FlM 4B.1 Window Upgrades at Streeffi Currently the Admin Building of the Streets department has double pane aluminum freme windows that are loose in the sashes and leaky. The staff Installs plastic over the windows in the winter to block the drefts from the windows. GENERAL: The Intent of this FIM is to install double pane, operable, vertical slider windows on "°' the Admin section of the Streets Building. • New windows must be double paned, Iowa, (with thermal break) windows that can have the panes removed from the Inside of the facility for cleaning. All windows must be provided with removable screens • Provide all labor and material to remove the seven (7) existing operable windows from the Administration Building and dispose of properly. • Provide all labor and material to Install the new windows and seal the interior and exterior per manufacturer's practices using color matching sealants. A. Hazardous material abatement. FlM 49.1- VFDa on Pool Pumps at ARC Mechanical 1. Provide all labor to install three flow meters on the outlet of the filter bank for each pool (Training, Family and Raised Spa). Locate flow meters in straight run of pipe as recommended by flow meter manufacturer. Controls 1. Furnish three (3) flow meters to be Installed by mechanical contractor. New flow meters shall be selected for the appropriate pipe size. Flow meters shall have the following: a. An analog output that is compatible with the automation system. b. An accuracy of +/-1%full scale (combined linearity and repeatability) ~° c. A minimum 20:1 turndown retio. 2. Install control wiring from each of three (3) flow meters to DDC system. City of Aspen, Colorado Page 3 of 6 Schedule A: Equipment to be Installed by Contractor 3. Connect the five (5) VFDs, installed by electrical subcontractor, to building DDC system with the following points: a. VFD Enable (dtgltal output) b. VFD Speed (analog output) c. VFD Fault (digital input) 4. Program DDC such that during facility occupied hours the pumps modulate based on filter outlet flow, as the filters become dirty and the outlet flow decreases the pump shall ramp up to maintain constant flow on the outlet of the filter. During facility unoccupied hours the pumps shall slow down to a maximum speed of 70% (adj.). 5. CONTRACTOR shall support all commissioning activities following implementation of this scope. Electrical 6. Furnish and Install four (4)10 HP and one (1) 5 HP inverter compatible motors (Emerson Electric or equal) to fit the existing pumps. 7. Furnish and Install four (4)10 HP VFDs and one (1) 5 HP VFD with manual electronic bypasses. VFDs shall be ABB or equal. Drives shall be wall mounted in the pool mechanical room. 8. Disconnect existing electrical connections from each of five (5) pump motors. 9. Provide a factory certified startup technician to startup the VFDs. 10. Make all necessary electrical connections from the pumps to the VFDs for proper operation per NEC. 11. CONTRACTOR shall support all commissioning activities following implementation of this scope. FlM 511- Waste Heat Recovery at ARC .a~w A condensing heat exchanger shall be installed in the ice rink refrigeretion system in parallel „„,.~ with the cooling tower. The heat exchanger shall use waste heat from the high pressure ammonia gas to heat a water loop that will be used to heat the pool. Since the water that is heated by the heat exchanger will not be warm enough to heat the pool directly, awater-to- water heat pump will be used to increase the tempereture of the water to a temperature that is hot enough to heat the pools using the existing heat exchangers. Since the refrigeration plant does not run constantly and cycles on a need for refrigeration, a thermal storage tank will be Installed to store water heated by the refrigeration plant so that the heat pump will have a steady supply of warm water. GENERAL: Mechanical a) Provide and install condensing style heat exchanger (HX) to recover waste heat from refrigeration plant. Hot side of HXshall be ammonia and cold side shall be non-potable water with a 30% propylene glycol concentration. HXshall be installed in high pressure refrigeration line in parallel with the cooling tower. It is proposed that the HX be suspended from the ceiling in order to locate It nearest to high pressure refrigeretion Ilne but alternate configurations will be accepted. b) Prior to HX installation Subcontractor shall Isolate section of refrigeretion Tine where HX will tie In and evacuate all ammonia from Isolated section of pipe. c) Once HX has been installed all isolated piping and the new HXshall be evacuated of all air and recharged with ammonia to manufacturer recommended levels. d) Provide and install refrigerant receiver and bypass piping for condensing HX. Receiver shall take liquid refrigerant from condensing HX and pipe it directly to the condensed liquid line after the cooling tower thus, bypassing the cooling tower. City of Aspen, Colorado Page 4 of 6 Schedule A: Equipment to be Installed by Contractor e) Provide and install a single water tank with integrel heat exchanger. Water tank to be sized based on available space and heat pump condenser water flow and tempereture requirements. Hot water from condensing heat exchanger shall be stored in the tank and the heat exchanger shall circulate a 30% propylene glycol solution that is connected to the water to water heat pump. f) Provide and install PVC piping necessary to connect thermal storege tank to condensing HX in refrigeration plant. g) Provide and install one base mounted, end suction pump in the condensing HX/thermal storage tank loop sized for 241 GPM and the appropriate head to overcome the pressure drop of the condensing HX, and associated piping and fitting losses. Install isolation valves in the line on both the suction and discharge side of the pump. Pump shall have a strainer and check valve. Install one balancing valve or circuit setter in the piping loop between the tank and the condensing HX. h) Provide and Install awater-to-water heat pump to supply at least 548 MBH output at 117°F supply temperature in the pool mechanical room adJacent to the new thermal storege tank Install heat pump on a housekeeping pad. Heat pump shall be reted for 460V/3 phase/60 Hz. Heat pump packaged controller shall be BACnet compatible for integration into the Metasys system. i) Provide and install PVC piping necessary to connect the evaporator of the heat pump to the toll bundle In the thermal storage tank. j) Provide and install one pump In the thermal storege tank heat pump evaporator loop sized for 98 GPM and the appropriate head to overcome the pressure drop of the heat pump evaporator HX, the thermal storage tank coil bundle and any associated piping and fittings. Install isolation valves in the line on both the suction and discharge side of the pump. Pump shall have a strainer. Install one balancing valve or circuit setter in the piping loop between the thermal storage tank and the heat pump. k) Provide and Install all piping, pumps and valves necessary to connect the condenser of the heat pump to the boiler supply water loop feeding the pool heat exchangers. a) Provide and install a tee on the return to the boilers and connect return to heat pump loop. b) Provide and install one pump in the heat pump supply loop sized for 121 GPM and the appropriate head to overcome the condenser heat exchanger and all associated piping and fitting losses. c) Provide and install one check valve In heat pump supply loop as shown in sketch. I) All new piping shall have 1"fiberglass pipe insulation with all service Jacket. m) All piping shall be labeled with directional arrows and proper identification of service. labels shall be placed: a) At least every 20' of continuous pipe b) On either side of ever wall, floor, or ceiling penetrations c) On either side of every valve and control device n) Provide and Install one manual chemical feeder in loop between thermal storage tank and heat pump evaporator and one manual chemical feeder in the loop between the condensing heat exchanger and the thermal storage tank. Charge both loops to 30% propylene glycol. o) Install thermowelis (provided by TC Contractor) for DDC temp sensors In the following locations: a) Heat recovery loop supply temp b) Condenser water supply temp c) Condenser water return temp d) Heat pump supply temp City of Aspen, Colorado Page 5 of 6 Schedule A: Equipment to be Installed by Contractor e) Heat pump return temp f) Pool HX supply water temp (hot side) g) Pool HX return water temp (hot side) Controls p) Integrete heat pump, pumps and thermal storage tank into the existing JCI Metasys system. a) Provide an Install the following points on the heat recovery equipment (1) Heat recovery loop supply temp (2) Condenser water supply temp (3) Condenser water return temp (4) Heat pump supply temp (5) Heat pump return temp (6) Pool HX supply water temp (hot side) (7) Pool HX return water temp (hot side) (8) Thermal storage tank temp (9) Heat recovery loop pump start/stop (10) Heat recovery loop pump status (11) Condenser water loop pump start/stop (12) Condenser water loop pump status (13) Heat pump supply water pump start/stop (14) Heat pump supply water pump status (15) Heat pump enable/disable (16) Ammonia Refrigeration System Compressor #1 Status (17) Ammonia Refrigeration System Compressor #2 Status b) For new temperature sensors, provide mechanical contrector with thermowells for installation. Thermowelis must be suitable for use in PVC pipe. c) Heat recovery loop pump shall cycle with Ice rink refrigeration system compressors. d) Condenser water loop pump and heat pump supply water pump shall be enabled whenever the heat pump is enabled. e) Heat pump shall be enabled whenever the thermal storage tank temperature is above 70°F (adj.) and there is a call for heating by the pools. f) The existing boiler water pump serving the pool heating HXs and associated VFD shall be controlled to maintain the necessary return water temperature from the pool heating HXs in order to maintain the pool temperature setpoints (i.e. if the heat pump can't keep up with the pool load the boiler water pump shall ramp up to supplement the heat pump in order to maintain the pool setpoint). Electrical q) Provide and Install all wiring, conduit, circuitry and any necessary service upgredes needed for proper operation of the new water-to-water heat pump. Provide and Install all wiring, conduit, circuitry and any necessary service upgrades needed for proper operation of the new 5 HP condensing HX pump, 2 HP thermal storage tank pump, and 2 HP heat pump supply pump. EXCLUSIONS A. Hazardous material abatement. City of Aspen, Colorado Page 6 of 6 Schedule A: Equipment to be Installed by Contractor SCHEDULE B: DESCRIPTION OF PREMISES; PRE-EXISTING EQUIPMENT INVENTORY A) Description of the Existing Facilities, Mechanical and Electrical Systems The buildings that were analyzed as part of this project are listed below: • Parking Dept Building • Parking Garage • Rio Grande • City Hall • Wheeler Opera House • Red Brick • Yellow Brick • Ice Garden • Water Treatment Plant Campus • Streets • Parks/Rec/Golf • Golf Club House • Aspen Rec Center • Electric Switch Station City of Aspen, Colorado Page 1 of 14 Schedule B: Description of Premises; Pre-Existing Equipment Inventory Parking Dept Building {Zupancis House) 540 E. Main St Aspen CO, 81611 Total Facility Slze: 2,498 This facility houses the offices for the parking department. It is a single story residential type building constructed of wood stud walls with aluminum siding. The roof is asphalt shingle and the windows are operable single pane clear vertical sliders. The building is heated with hot water baseboard radiation and a hot water boiler controlled by conventional thermostats. There is also a residential A.O. Smith domestic water heater. The building has various window mounted PTAC units used for cooling. The lighting is a mix of incandescent and CFL lighting with some linear fluorescent T-12 magnetic ballast fixtures. There are no lighting occupancy sensors. The building is occupied from lam - 5pm Monday through Friday. There is a large gap under the back door with no weather-stripping that according to building staff has not been installed because the door gets stuck when excessive snow builds up on the roof and causes the doorway to sag. The gutters on the building are in poor condition and the basement window framing is old and leaky in spots. City of Aspen, Colorado Page 2 of 14 Schedule B: Description of Premises; Pre-Existing Equipment Inventory Parking Garage 427 Rlo Grande Place Aspen CO, 81611 Total Facility SIze:114,000 The Parking Garage Building was constructed in 1989 and is comprised of a parking structure with both below and above ground parking levels as well as tenant office space on the north of the building. The garage areas are unconditioned but are served by exhaust fans that are controlled with CO monitors. The office areas are heated with natural gas fired forced air furnaces. The lighting in the garage is mainly 175W metal halide fixtures. Some of the light fixtures in the stairwells were observed to be T-8 lamps placed into T-12 fixtures which actually uses more energy and reduces the life of the lamps. The parking garage is a 24/7 facility. 0 City of Aspen, Colorado Page 3 of 14 Schedule B: Description of Premises; Pre-Existing Equipment Inventory Rlo Grande Youth Center This facility houses office space and a restaurant on the first level and public meeting space on the second floor. It is heated with natural gas fired forced air furnaces with conventional thermostats. At the commencement of this project this building was slated to be replaced in the next 3-5 years, however due to recent developments the City has decided to push back the planned replacement of the building and continue to use the existing building for the foreseeable future. The lighting in the building is a mix of recessed incandescent can fixtures and T-12 with magnetic ballasts. The restaurant is occupied from 10am to 10pm everyday and the office areas are occupied from lam to 5:30pm Monday through Friday. The meeting space has varied occupancy during business hours and on the weekends. The building is brick and stucco with double pane operable windows. City of Aspen, Colorado Page 4 of 14 Schedule B: Description of Premises; Pre-Existing Equipment Inventory 455 Rio Grande Place Aspen CO, 51611 Total Faclllty Size: -10,000 Clty Ha11 130 S. Galena St Aspen CO, 81611 Total Faclllty SIze:19,684 City Hall was originally constructed in 1892. Since then it has undergone multiple renovations. The building construction is brick with asphalt shingle roof and single pane vertical slider operable windows. Currently the basement and first floor are heated by a hot water atmospheric boiler that serves forced air fan-coil units and hot water baseboards. The second and third floors are mainly heated with electric baseboard heat. There is a Honeywell direct digital control system that controls the boiler and heating equipment on the first floor. The system has no graphical front end. The baseboards on the second and third floors are controlled by conventional thermostats. There are two abandoned evaporative coolers on the roof that used to serve the third floor. The building is mainly occupied from lam to 5:30pm Monday through Friday, however there are several meeting rooms, including city council meeting room that are used after hours and can be occupied until 10pm. The lighting is mainly T-5 and T-8 electronic ballast fixtures. There are some incandescent and CFL fixtures as well as a few T-12 fixtures. City of Aspen, Colorado Page 5 of 14 Schedule B: Description of Premises; Pre-Existing Equipment Inventory Wheeler Opera House The Wheeler Opera House was originally built in 1889 with a major renovation in the 1980's. The facility has four levels and a basement which house an auditorium, backstage area with dressing rooms and showers, Bentley's restaurant, Art gallery space and offices on the basement level. Bentley's restaurant and the Art gallery are tenants and they have their own utility meters. The building is heated with three Patterson-Kelley Mach condensing boilers and cooled with a roof mounted air-cooled Trane chiller. The air is delivered to the spaces with forced air hydronic fan coil units and air handlers. The domestic hot water is heated by an indirect hot water heater attached to the main boiler loop. The heating water is delivered to the building with two constant volume 3-phase hot water pumps. The pumps run simultaneously with one pump serving the equipment in the basement and first floor and the other pump serving the rest of the building. There is also a single phase back-up hot water pump which is attached to an emergency back-up generator. The building staff reports that the power rarely fails and that the back-up pump is very rarely used. The chilled water is delivered to the building by a single constant volume chilled water pump located in the mechanical room in the basement. City of Aspen, Colorado Page 6 of 14 Schedule B: Description of Premises; Pre-Existing Equipment Inventory 320 E. Hyman Ave Aspen CO, 81611 Total Facility Slze: 22,106 The Red Brick building contains studio space for local artists, a recreation center and a N/radio station. The single story building was originally built in the early 1940's and is constructed of brick with EPDM membrane roof and mostly single pane metal frame windows (with some double pane windows in the recently added spaces). An addition was built on the west end in 2006. The building is heated with two atmospheric gas fired boilers which serve cast iron steam radiators that have been converted to hot water. The radiators are controlled with conventional thermostats. During the initial site visit it was observed that occupants had windows open while the heating system was enabled. The main hallway of the art studio space is used as an art gallery. The runtime of the lighting in this space was logged and it was observed that it was being left on through the night approximately 5 times a month during the logging period. The lighting is mostly T-8 with some T-12 and incandescents. Since the building is occupied by many individual artists and other entities renting space the occupancy is varied and the building is typically occupied from lam to 12am everyday. City of Aspen, Colorado Page 7 of 14 Schedule B: Description of Premises; Pre-Existing Equipment Inventory 110 E. Hallam St Aspen CO, 81611 Total Faclllty Slze: 31,678 Yellow Brick This facility was originally built in 1959 as a school and has been reconfigured for use as a daycare and offices in the basement. It is constructed of brick with a membrane roof and double pane windows. The old classrooms on the main level are heated and ventilated by unit ventilators located in the spaces along the exterior walls. The offices in the basement are heated and ventilated by an air handling unit located in the mechanical room in the basement. The heat is provided by two atmospheric natural gas fired hot water boilers. The heating and ventilating equipment is controlled with an Alerton direct digital control system with a front end computer that is located in the Kid's First office. During the preliminary investigations many temperature and C02 sensors appear to be out of calibration and systems do not appear to be operating as intended. The lighting is mostly T-8 and CFIs with some T-12 and incandescent lighting in the mechanical areas and storage closets. The building is occupied during normal business hours from lam to 6pm. City of Aspen, Colorado Page 8 of 14 Schedule B: Description of Premises; Pre-Existing Equipment Inventory 215 N. Garmish St Aspen CO, 81611 Total Faclllty Slze: -13,200 Ice Garden The Ice Garden facility houses a public ice rink, locker rooms and offices for the building staff. The building is constructed of CMU walls with a metal roof. The locker rooms and office areas are heated with residential style natural gas fired forced air furnaces controlled by conventional thermostats. The spectator areas of the ice area are heated with gas fired infrared heaters. The ice arena's humidity is controlled by an exterior mounted air handler with desiccant wheel. The windows on the east side of the building are acrylic single pane with wood frames. The garage door on the east end is un-insulated. The refrigeration plant that serves the ice rink was originally installed as an Ammonia system but was converted to R-22 in 2001. The ceiling above the ice rink has a low emissivity covering to reduce the radiation heat load on the ice. The lighting is mainly T,8 electronic ballast with some incandescent fixtures. The building is occupied from lam to 10pm. City of Aspen, Colorado Page 9 of 14 Schedule B: Description of Premises; Pre-Existing Equipment Inventory 233 W. Hyman Ave Aspen CO, 81611 Total Faclllty Slze: 27,622 Water Treatment Plant Campus The Water Treatment Campus is comprised of the Administration Building, the East and West Plant buildings and the site storage building. The main source of heat for the Administration Building and the site storage is in floor hydronic radiant heating supplied by a natural gas fired boiler. The Administration Building has supplemental heat and ventilation from a heating and ventilating unit in the attic. The East and West Plants are heated with natural gas fired unit heaters suspended from the ceiling in the space controlled by conventional thermostats. The occupants in the Administration Building complain that their spaces are overheating. As the afternoon sun heats up the spaces the in-floor radiant system does not back off in time and the spaces overheat. The Administration building is controlled with conventional and programmable thermostats. The lighting is a mix of T-8 and T-12 fixtures with some metal halide and incandescent as well. The buildings are occupied from lam to 5pm Monday through Friday. City of Aspen, Colorado Page 10 of 14 Schedule B: Description of Premises; Pre-Existing Equipment Inventory 500 Doolittle Rd Aspen CO, 81611 Total Facllfty Slze: 21,910 Streets The Streets buildings are comprised of the old electric building and the newer section which was built in 1994. The newer section houses the administrative offices for the Streets department as well as vehicle maintenance and the old electric building houses the snow plow fleet storage and maintenance. The administrative section is heated and ventilated by a constant volume air handler with hot water heat. The unit is controlled by a conventional thermostat and it runs 24/7. The hot water coil in the unit is two position which causes wide swings in the discharge air temperature and comfort complaints. The maintenance area of the 1994 section is heated and ventilated by a direct fired 100% outside air natural gas air handler with face and bypass dampers. There are natural gas fired infrared heaters in the vehicle maintenance area but they have not worked for 10 years according to building staff. The old electric building is heated with natural gas fired unit heaters suspended from the ceiling in the space. The main occupancy schedule is Gam to 5pm Monday through Friday but the building may be used 24hrs a day especially during snow storms when plowing is taking place. The lighting in the office area is mainly T 12 with some incandescents. The shop and garages have T-12 and metal halide lighting fixtures. City of Aspen, Colorado Page 11 of 14 Schedule B: Description of Premises; Pre-Existing Equipment Inventory 1080 Power Plant Rd Aspen CO, 81611 Total Faclllty Slze: 8,118 Parks/Rec/Golf .~r~i This facility is used for vehicle maintenance for the Parks, Golf and Recreation Department. It also houses the offices and both warm and cold storage for the department. There is also one employee housing unit located in the office portion of the building. The office areas are heated by hot water baseboard radiation fed by an atmospheric boiler. The warm storage and vehicle maintenance areas are heated with natural gas fired unit heaters on conventional thermostats. The building is typically occupied from lam to 5pm Monday through Friday. The lighting is a mix of T-8 and T-12 with some metal halide fixtures. The building is constructed of wood frame walls with wood siding and metal roof. Golf Club House 39551 Hwy 82 Aspen CO, 81611 Total Faclllty SIze:10,208 The Golf Club House was built in 2001 and houses abar/restaurant, retail space, locker rooms and storage. The facility is constructed of wood frame walls with batt insulation and the roof is corrugated metal on plywood with batt insulation. The building is heated and cooled with two natural gas fired unit furnaces with DX cooling and one natural gas fired heating only make-up air unit. The units are controlled with programmable thermostats. The lighting is mainly T-8 and CFL with some incandescent fixtures. During the preliminary visit a hole was observed in the flex connection of the supply duct of the MAU-1 which serves the kitchen area. During the detailed audit it was observed that the hole was repaired with foil tape. City of Aspen, Colorado Page 12 of 14 Schedule B: Description of Premises; Pre-Existing Equipment Inventory 585 Cemetery Lane Aspen CO, 81611 Total Faclllty Slze: 17,664 Aspen Recreation Center The Aspen Recreation Center (ARC) was built in 2002. The building houses an ice rink arena, two swimming pools with a hot tub, steam room and sauna, as well as locker rooms, offices, fitness center and youth center. The building is constructed of metal frame and CMU walls with corrugated metal roofing. The building space heating and pool heating are provided by three Viesman condensing boilers. The heat is delivered to the spaces by air handling units located in a mechanical penthouse. The air handlers have DX cooling in addition to hot water heat. The pools are heated by heat exchangers that exchange heat with the main building space heating loop. Waste heat from the ice rink refrigeration equipment is used to preheat domestic hot water. The systems are controlled with a Johnson Controls Metasys DDC system. The lighting is mainly T-8 with electronic ballasts and CFLs. There are T-12 fixtures in the elevator. The building is occupied from Gam to 9pm Monday through Friday, gam to Spm Saturday and 11am to 6pm on Sunday. The two pool air handlers have plate and frame heat exchangers which are used to recover heat from the exhaust air stream to preheat the incoming outdoor air. There are no filters on the exhaust air supplied to these heat exchangers and as a result they are beginning to clog with airborne debris from the pool exhaust air. There are also problems with snow infiltration in the pool AHUs. n City of Aspen, Colorado Page 13 of 14 Schedule B: Description of Premises; Pre-Existing Equipment Inventory 861 Maroon Creek Rd Aspen CO, 81611 Total Facility Slze: 83,000 Electric Switch Statlon The Electric Switch Station houses electrical switch gear and some offices for the city electrical department. It is heated with electric unit heaters suspended from the ceiling within the occupied space. City of Aspen, Colorado Page 14 of 14 Schedule B: Description of Premises; Pre-Existing Equipment Inventory 219 Puppy Smlth ,~Spen CO, 81611 Total Facility Slze: 2,000 SCHEDULE C: ENERGY AND COST SAVINGS GUARANTEE Deflnklon of Terms Used In the Performance Guarantee The following terms are defined for use In these CONTRACT documents for the performance guarentee. Accumulated Realized Savings' means the sum of the actual energy savings achieved from the Effective Date of this Agreement through the end of the current Annual Period, derived from the sum of Measured & Verified Savings plus the Stipulated Savings. Accumulated Guaranteed Savings' means the sum of the Guaranteed Measured & Verified Savings plus the Stipulated Savings from the Performance Commencement Date of the Agreement through the end of the current Annual Period. 'City' means The City of Aspen, Colorado. "Annual Guaranteed Savings' are the Measured & Verified Savings and the Stipulated Savings that occur in any Annual Period of the Guarentee Term. 'Awlded Cost" means savings in units of consumption (e.g. kWh, kW demand, therms, gallons, etc.) in a BIIIing Period multiplied by the utility rate for the Billing Period, as set forth in Schedule E. 'Billing Pmfod" Is the term defined by a utility company as the time between meter readings or fuel deliveries. It does not refer to the time when the bill was sent or when the payment was to have been received. In some cases, the billing period Is the same as the billing cycle that corresponds closely (within several days) to meter-reading dates. For fuel oil and LPG, the billing period is the number of days between fuel deliveries. "BTU" is a unit of thermal energy defined as a British Thermal Unit and is the amount of energy required to raise the tempereture of one pound of water by one degree Fahrenheit. "CCP is a measure of energy equal to 103,000 BTUs. 'CONTRACTOR" means McKinstry Company. "Energy Conservatlon Measure' or "ECM" means, in general, any energy saving equipment, service, means, method, technique, procedure, or activity. For the sake of the CONTRACT only ESCO Equipment and ESCO Services relating to installation, or modification of an Installation, in a facility which is primarily Intended to reduce Energy Consumption or to allow use of an alternate energy source will apply. "Ene-gyConaumptlon' means the amount of electrical energy and demand, natural gas, oil, propane, or other fuel, consumed in the Facility in any Billing Period, as calculated by utilizing the data, methodology and variables set forth In Schedule F. Energy Consumption may also Include other utilities such as water and sewer. "Energy Cost Savings' (also see "Avoided Costs") means savings in units of consumption (e.g. kWh, kW demand, therms, gallons, etc.) In a Billing Period multiplied by the utility rate for the Billing Period, as set forth in Schedule E. "EnergySavings' means, for each form of energy for each Billing Period, the difference between the Baseline Energy Consumption for the Billing period and the Energy Consumption actually Incurred In the Billing Period asset forth in the Schedule F. City of Aspen, Colorado Page 1 of 8 Schedule C: Energy and Cost Savings Guarantee "Escalatlon Factor" means an annual escalation percentage, defined In Schedule E, to be applied to the previous year's Energy Savings, Operational Savings and Measurement and Verlflcatlon Program, beginning the second Annual Period after the Acceptance Date. "ESCO' means Energy Services Company, McKinstry Company. 'ESCO Equipment" means the equipment installed or caused to be Installed by the ESCO, as set forth in the Schedule A. 'ESCO SeMce' means all the services to be provided by the ESCO, as set forth In this CONTRACT. "Excess SaHngs' means the Realized Annual Savings less the Annual Guaranteed Savings for the Annual Period. If the amount is zero or less there is no Excess Savings amount for that Annual Period. "Facllily' means the buildings(s) or facility(s) included In the Energy Services Agreement and described in the Technical Energy Audit. "FaclAty Improvement Measure' or'flM" means, in general, an equipment, service, means, method, technique, procedure, or activity. For the sake of the CONTRACT only ESCO Equipment and ESCO Services relating to installation, or modification of an Installation, In a facility which is primarily intended to reduce Energy Consumption or improve the facility or to allow use of an alternate energy source will apply. "Guaranteed SaNngs" means the amount of Avoided Cost that this Agreement anticipates will be achieved at the Facilities under this Agreement, calculated as the aggregate of the Measured & Verified Savings and the Stipulated Savings amounts identified in the Pertormance Guarentee section of Schedule C, but not to exceed the aggregate of the Contract Sum; the M & V Payments; and the OWNER'S cost of financing the Work. "Guarenteed Measurod & VeAHed Savings' means the Measured & Verified Savings guaranteed to be achieved as described in the Pertormance Guarantee, Schedule C. "k4V" means Kilowatt, and is a measure of electric power. "kWh' means Kilowatt hour, and is the product of kW and hours, which Is a measure of electric consumption. "M&V Option' is the measurement and verification option used to measure and verify the savings of a particular ECM or FIM. Options A though D follow the protocols Identified by the International Pertormance Measurement and Verlflcatlon Protocol (IPMVP). "Measurod and VertNed Savings' means the product of the energy savings which can be measured and verified by the methodology as set forth In Schedule F and the applicable utlilty rates described in Schedule E. 'Notice of Commencement of Energy Cost SeNngs' means written notice from the ESCO to the Owner that the ESCO has substantially completed Installation of ESCO Equipment and/or that it has provided ESCO Services and that such equipment or services are now providing Energy Savings. "Owner' means The City of Aspen, Colorado "Operetlonal & Ma/ntenance Savings" or '06M Savings" are non-utlilty savings that have been mutually agreed upon and stipulated by the CONTRACTOR and OWNER prior to or upon Implementation of the FIMs. The operational and maintenance savings for each Pertormance Guarantee Period, with the corresponding Escalation Factor, are set forth In Schedule E. City of Aspen, Colorado Page 2 of 8 Schedule C: Energy and Cost Savings Guarantee m Wimple Payback' means the cost of the project including development, audit, design, construction, management, fees, and other direct project costs divided by the sum of the first year annual Energy '~ Cost Savings and 0&M Savings, but does not include financing costs or other escalation rates. "Performance Guarantee Period' means each successive twelve month period following the Pertormance Commencement Date described in Section 4.2. "Realized Annual SaWngs' means the actual cost savings achieved by OWNER during an Annual Period, calculated as the sum of the Measured & Verified Savings plus the Stipulated Savings. "SaWnga Shortfall" means the Annual Guaranteed Savings less the Realized Annual Savings for the Annual Period. If the amount is zero or less there is no Savings Shortfall amount for that Annual Period. 'Stipulated SaWn$s' are the savings that have been mutually agreed upon and stipulated by the CONTRACTOR and OWNER prior to or upon implementation of the FIMS. '1Itl11Ry SaWn~' means, for each form of energy or other utility for each Billing Period, the difference between the Baseline Consumption for the Billing period and the Consumption actually incurred in the Billing Period as determined in Schedule F. '7herm' is a measure of energy equal to 100,000 BTUs a.. City of Aspen, Colorado Page 3 of 8 Schedule C: Energy and Cost Savings Guarantee GUARANTEE OVERVIEW .~, For this protect, CONTRACTOR is prepared to guarantee the pertormance of the Installed Initiatives to reduce energy consumption specific to units of energy. The target energy reductions for the initiatives that will be implemented are as described in Table C.2. Based upon the stipulated conditions as enumerated by OWNER personnel and the utility rates as described in Schedule E, the utility cost savings are also shown in Table C.2. Table C.2, the Savings Summary by M&V Option, provides the specific energy consumption savings for each facility improvement measure (FIM) and the guarantee that CONTRACTOR will provide associated with that measure. The savings guarentee is based upon specific energy unit(s) (ie: kWh, Therms, etc.). The utility rates mentioned in Schedule E are only used In calculating baseline and proposed energy savings. Savings calculations are based upon both baseline operating characteristics and proposed operetion criteria. Baseline: "Baseline" refers to the existing opereting characteristics that were used to calculate energy cost savings. In general, all parties acknowledge the baseline associated with any specific measure has been derived from the following sources: 1. Actual operating Information gathered through field observation, measurement, micro-data loggers, and owner's operating log bcoks. 2. Owner provided Information concerning stipulated factors such as operational expenditures. 3. In some Instances, a modified baseline may have been developed to address areas whereby pre-retrofit conditions do not reflect a system that is operating per current code or what the OWNER may deem as normal operation. Proposed: The proposed operating criteria and system pertormance are described in Schedule F in order to determine the savings provided in Schedule F. The operational expenditures and analysis ,,,,~ are described at the end of Schedule E. Systems must be operated per the proposed criteria to ensure energy cost savings are realized. CONTRACTOR will provide the Initial start-up and "' commissioning of the systems to ensure that the systems operate per the proposed operating criteria. OWNER acknowledges their responsibility to ensuring that these criteria are maintained and associated energy savings are realized. Energy Savings Guarantees are predicated on the OWNER maintaining their responsibilities as provided in Schedule K, "City's Responsibilities." CONTRACTOR guarantees that the Guarenteed Savings generated from the Performance Commencement Date of this agreement to the last date of the Performance Guarantee Period will be equal to the Guaranteed Savings shown on Table C.1. The measurement and verification calculation methodology for determining the Measured & Verified Savings is set forth in Schedule F. The Performance Guarantee is dependent upon and is subject to the express condition precedent that the OWNER enters into and maintains, during the entire term of the Pertormance Guarantee Period, the Measurement and Verification Program. If the OWNER fails to enter into, breaches, cancels or otherwise causes the termination of the Measurement and Verification Program, this Pertormance Guarantee shall terminate Immediately and be void and of no force or effect. City of Aspen, Colorado Page 4 of 8 Schedule C: Energy and Cost Savings Guarantee Table C.1: Guaranteed Avoided Costs Year Utllky Savings Operatonal & Maintenance Savings Total Avoided Costs 1 $58,697 $3,833 $62,530 2 $62,677 $4,024 $66,701 3 $66,927 $4,226 $71,152 4 $71,464 $0 $71,464 5 $76,309 $0 $76,309 6 $81,483 $0 $81,483 7 $87,008 $0 $87,008 8 $92,907 $0 $92,907 9 $99,206 $0 $99,206 10 $105,932 $0 $105,932 11 $113,114 $0 $113,114 12 $120,784 $0 $120,784 Notes: a.) Operational and Maintenance Savings from lamp and ballast Inventory avoided '"" replacement costs end after three years. GUARANTEE ACCOUNTING CONTRACTOR shall prepare an annual reconciliation statement within sixty (60) calendar days of the last day of each Pertormance Guarentee Period to determine whether Realized Annual Savings for such Pertormance Guarantee Period resulted in an Excess Savings or a Savings Shortfall by comparing the Annual Guaranteed Savings and the Realized Annual Savings. All operational, maintenance, and energy costs avoided by the OWNER from any steps taken by CONTRACTOR in the Facilities will be included in the Realized Annual Savings for each year. If, during the Construction Period, additional measures are Identified and implemented that generate additional energy, maintenance, and operational savings, these savings may be included in the Realized Annual Savings after the Pertormance Commencement Date. In addition, any refunds collected, Including but not limited to refunds from utility companies or maintenance contractors after the Performance Commencement Date will be added to total savings. It CONTRACTOR can correct a shortfall through operational improvement at no expense to the OWNER and with no future operational expenses or negative impact on the operetions of the OWNER, and the OWNER declines to allow such operational Improvement without reasonable cause, then any future shortfall the improvement would have corrected will be stipulated and added to the savings on an annual basis. Should the Accumulated Realized Savings at the end of the Annual Period be less than the Accumulated Guaranteed Savings, CONTRACTOR shall pay the OWNER the Savings Shortfall within thirty (30) days following the completion of the annual reconciliation for such Annual Period. ..,.. City of Aspen, Colorado Page 5 of 8 Schedule C: Energy and Cost Savings Guarantee INFORMATION AND CHANGES IN USE OWNER will notify CONTRACTOR in writing within thirty (30) calendar days oF. a. Any material changes to energy consuming or regulating equipment, operating schedules, business/services conducted, occupancy, or hours of operetion; or b. Any malfunctions, failures and related changes in energy consuming or regulating equipment; or c. Any damage to, destruction of, or condemnation of the Work. d. Executed preventive maintenance and repair records. OWNER will provide CONTRACTOR with accurate Facility operating information, including energy usage and cost, executed preventive maintenance and repair records, and occupancy levels during each Annual Period, as soon as such information becomes available to the OWNER. GUARANTEE LIMTTS The payments and credits based on Savings Shortfalls, if any, are the sole remedy of OWNER for this Performance Guarantee. Any payments made or to be made to OWNER under the terms of this Performance Guarantee shall not exceed the payments actually made by OWNER to CONTRACTOR for the Contract Sum. GUARANTEE TYPES There are five guarantee options to measure and verify savings: Option A -Partially Measured Retrofit Isolation Option B -Retrofit Isolation Option C -Whole Facility Energy Use Option D -Calibrated Simulation Option E -Stipulated Option A -Partially Measured Retrofit isolation Option A is a retrofit isolation approach designed for projects in which the potential to generete savings must be verified, but the actual savings can be determined from short-term data collection, engineering calculations, and stipulated factors. Post-installation energy use, equipment performance, and usage are NOT measured throughout the term of the CONTRACT. Post-installation and baseline energy use is estimated using an engineering analysis of information that does not involve long-term measurements. The intent of Option A is to verify performance through pre- and post-retrofit measurements. Usage factors can be measured or stipulated based upon engineering estimates, operating schedules, operator logs, typical weather data, or other documented Information source. Post-retrofit measurements are made only once. Thereafter, Inspections verify that the 'potential to perform' exists. As long as the 'potential to perform' is verified, the savings are as originally claimed and do not vary over the CONTRACT term. Option A methods are appropriate for less complex measures for which performance and operational characteristics are well understood and are unlikely to change. An Option A approach can also be suitable when the value of the measure's cost savings are low. Examples of projects where Option A may be appropriate include one•forone lighting replacement measures, high efficiency motors with constant loads, or measures with a small percentage of overall cost savings. Option B -Retrofit holation Option B is a retrofit isolation or system level approach, and requires continuous measurement to provide long-term verification of the savings. This method is intended for retrofits with performance factors and operational factors that can be measured at the component or system level and where long-term performance needs to be verified. Option B is similar to Option A but uses periodic or City of Aspen, Colorado Page 6 of 8 Schedule C: Energy and Cost Savings Guarantee continuous metering. Short-term periodic measurements can be used when variations in the ~, measured factor are small. Continuous monitoring information can be used to improve or optimize the operetion of the equipment over time, thereby Improving the performance of the retrofit. The intent of Option B Is to verify pertormance periodically or continuously with long-term measurements. Usage factors may be stipulated as in Option A or measured continuously. Option B methods are appropriate for complex systems whose load or operating conditions are not well known or are highly dependent on external factors. Examples of protects where Option B may be appropriate include variable frequency drive installations, modifications to control systems, chiller system upgrades, or measures with a high percentage of overall cost savings. Option C -Whole Facility Energy flee Option C is a whole•building verification method. Savings are based on actual energy consumption as measured by the utility meter(s) and/or regression modeling. Estimated savings will vary over the CONTRACT term. Option C verification methods determine savings by studying overall energy use In a facility. The evaluation of whole•building or facility-level metered data is completed using techniques ranging from simple billing comparison to multivariate regression analysis. Regression analysis can be used to account for weather and other factors to adjust the baseline and determine savings. Option C is an appropriate and cost-effective method ONLY if facility operation is stable and savings are expected to exceed 20% of total energy consumption. However, Option C cannot verity the pertormance of individual measures but can verify the total pertormance of all measures including interactions Option C methods are appropriate for projects whose measures have a high degree of interaction that would be difficult to predict, when overall energy savings are very large, or when dedicated utility w~. meters are available for retrofitted equipment or systems. Option D -Calibrated Simulation Option D is primarily awhole-building method but can be used at the component level. Savings are based on the results of a calibrated computer simulation model. Estimated savings may vary over the CONTRACT term if real weather data is used. Option D uses calibrated cemputer simulation models of component or whole-building energy consumption to determine energy savings. Linking simulation Inputs to baseline and post-installation conditions completes the calibretion, and may Involve metering performance and operating factors before and after the retrofit. Specialized software packages, such as DOE-2 or e-Quest, are used in Option D and the development of accurate building models requires substantial time and expertise. Option D methods are appropriate for complex projects where complex system Interactions need to be tracked. Due to the expense of properly conducting Option D, suitable projects should have substantial cost savings or major building renovations such as window replacements and building insulation. Option E -Stipulated Option E uses variables that are known and agreed upon by the OWNER and the CONTRACTOR In advance, that are used In a calculation or simulated analysis that will stipulate the outcome. Based on the established analytical methodology the savings will be achieved upon completion of installation and commissioning of the Facility Improvement Measure and no further measurements or calculations will need to be performed. „„ City of Aspen, Colorado Page 7 of 8 Schedule C: Energy and Cost Savings Guarantee C O n Q T a Z E fN V d a F C ~r° ¢ a a a a a a a a a a a a a a a a i i a a g ~ P M jL ~~ C ^ P ~ N N N O1 M O O N Op~ N n 1l1 0 M b Ifl ( y b n N O O b I(1 . -1 V N V N .-i 1!1 O1 : M M '~ W n M p ~ K M ~ N N E VF VF N YF N K W N N N tl! tlF K N 1C y ~" M Y F` C < I~ M b O1 M M T ^ M y Ij1 ~ K N M H ~ iq K W K M N H W N N N W H N M N ~ r` ~ k ~ V Y O ^ ti 0 b P N N ~ ~ ya ~ ~ b M b b .. .. 1 11 b ~O ~, F +1 o I~ b dyl ey ,°'_, M v b u1 Iff m b n P o 0 u 0 u `v°1 ` v fo C 7~ ~ ~ ~ N w ~i ~ ~ » N M '^ w K ~ i u w K w M LL y Y $ S N b ~ M b naa a n b a ,p O b r0i m N n q q R O O N O V P n < m ~ tMt O ~ O O O O O N N q 1~1 C N V N .-i V N rvi n N ~ P P ~ ~ .y N dy Y b N ~ C ,S N m W N N O^D ~ b ~ N 1^+1 ^ N O M N N O O O b ~ VVVglll . a 1 i1 1 i1 'I ~ Q O E 0 H n n N °' e c c9 o ` 3 w ~p ' ~ a v ~S ry 3 ~ w 'c "~ m y ~ c 1 Yl ,T. - ~ l7 m 2 ~ ~ ` ~ ~ + m ~ m` c V l f •~ m G ; m c~ ~ ~ a ~ a ~ a ~ s ~ yVj LL ~ ~ a u ~ v ~ d ~ y t ~ a u ~ ~ i s ~ y d ~ cc d Y ~ a ~ ~ q ' ~ py y Q Q G ~ ~ ~ ~ 3 3 0 a J 7 ~ q d pp ¢ ~ C g € Y i € ~' $ ~ ~ E g o E a a rn a a a a rn a rn a rn ~ 'g' f ¢~ F ¢+ F c '~ ^1 °c ~ ~ q Z c L yc c L {c] nc pc yc yc nc Dc nc nc ~ W W Do ~ a L a a L rn L rn L rn L a L a L a L a t a t rn c 01 c a a ry E Q n 6 ; H IL ~ J .J J J J J J J J J J ? C E E ~ ~ ~ ~ , N N a pq1 ~ Q L g ~ Q j 0 ~ _ V? { ~ ~~ 'N s Z .a n M a m n ro a °. '! N. .Mi .a. o .1 n .~ .i . a . ~ .a N N M PI f`I PI f4 /`I fN N /V f'~ /, M b N H M ~pp ~ Q qq 7 N • Q f0 a a~i c m nu C O U O C ~ ~ m O ~ U C w C av o ~ ~N cz U v7 .- - SCHEDULE D: ~~ MONITORING, MAINTENANCE AND SERVICE AGREEMENT CHANGE OF USE In the event that the CITY chooses to make changes to the facility requiring modifications to the final commissioned states of the Installed FIMs, including but not limited to set point adjustments, longer operating hours, or continuous equipment operations, the CITY agrees that: a. Savings deemed as met previously will continue to be deemed as met. b. Additional cost of extended equipment operation is a cost of the change, not due to a failure of CONTRACTOR or the equipment detailed in the project scope. c. CONTRACTOR shall not be responsible for any Increase in energy, maintenance, or any other costs incurred as a result of the extended equipment operation. d. CONTRACTOR at Its option may make a baseline energy use adjustment to account for a changeof-use at any facility. CONTRACTOR will provide ongoing services to insure the performance of this progrem. The ongoing responsibilities are included in the Measurement and Verification Progrem (M&V) as described herein. CUSTOMER SATISFACf10N & QUALRY ASSURANCE PROGRAM CONTRACTOR will meet with CITY one time per year to review your satisfaction with the quality of service that is being provided under your Measurement and Verification Program. PERFORMANCE INSPECTION METHODOLOGY & FREQUENCY The M&V plans are described in more detail at the end of each FIM description in Schedule F. In addition to the actual savings M&V, CONTRACTOR will provide routine scheduled operating inspections of equipment Installed in this program to check system performance and equipment F~ operetions to evaluate system operation described in the detail below: LightinE Retrofits The lighting systems Installed will be inspected annually to ensure proper maintenance and replacement of failed lamps or ballasts. VendinE Misers Annual inspections will be made to verify that vending misers installed remain installed and in a functional condition. ProEremmable Thermostats The schedules and set points will be measured annually by physical Inspections of the programmed thermostat schedule and set points to ensure that unauthorized changes have not been made to the equipment schedules. VFD Installations Equipment programming, schedules, and trends will be analyzed for the first year to ensure that the rooftop air handling unit and pool pumps are operating as specified. For subsequent years, programming and schedules will be inspected to verify consistency with the original sequence. Details will be discussed in an annual report. Waste Heat Recovery Equipment programming, schedules, and trends will be analyzed for the first year to ensure that the heat recovery system is operating as specified. For subsequent years, programming and schedules will be Inspected to verify consistency with the original sequence. Details will be discussed In an annual report. City of Aspen, Colorado Page 1 of 3 Schedule D: Monitoring, Maintenance and Service Agreement PERFORMANCE DATA, ENGINEERING AND REVIEW The periodic inspections detailed above will provide data that will be analyzed to verify the pertormance of the installed FIMs. This pertormance evaluation will be used to make recommendations that can improve the overall results to the CITY. Listed below Is a summary of the tasks to be delivered as part of this measurement and verification progrem: REPORTING CONTRACTOR will compile pertormance data annually. Inspection findings and performance summary reports will be genereted annually. The results of the program will be reconciled against the projected annual energy and operational savings and the findings will be provided in an Annual Repor[ delivered approximately 60 days after the anniversary date of the contract completion date. CITY OVERSIGHT REVIEW RESPONSE CONTRACTOR will respond to questions from the CITY regarding the M&V program. CONTRACTOR has included provisions for responding to M&V overview from the GEO in this scope of work. MEASUREMENTAND VERIFlCATION PROGRAM COMPENSATION SCHEDULE MEASUREMENT AND VERIFlCATION TERM The term of the measurement and verification program (M&V) shall be 120 months and shall commence on the Monitoring Commencement Date set forth in Section 4.2 of the Pertormance Contract herein. CITY may elect to terminate the M&V after Year Three (3) or after any year following by giving the CONTRACTOR written notice of at least silly (60) days prior to the anniversary date for that year as shown in Table D.1 below. ,,.,,,,~ M&V COMPENSATION CITY agrees to pay CONTRACTOR the additional sum of $62,886 ("M&V Sum") or a prorated portion according to Table D.1, for the Measurement and Verification Progrem as described herein. The M&V Sum is payable according to the schedule below where the first year M&V service cost is $5,000 and each year of service after is escalated by 5.0%. PAYMENT SCHEDULE Table D.1 Months After Completion Annual Amount 1 $5,000 13 $5,250 25 $5,512 37 $5,788 49 $6,077 61 $6,381 73 $6,700 85 $7,035 97 $7,387 109 $7,756 City of Aspen, Colorado Page 2 of 3 Schedule D: Monitoring, Maintenance and Service Agreement This Measurement & Verification program payment schedule is attached to and made a part of the Agreement between the CONTRACTOR and CITY dated January 12, 2010. The City of Aspen, Colorado Slg lure Printed me 1 (,C.U~Q~~~ Title MCKINSiRY ESSENiION INC. ~~L /~5~2A/r~ Signatur Jbs~afn !-Ia~riJ- Printed me ~i reC~oY of ~VI0.v1C~ Title City of Aspen, Colorado Schedule D: Monitoring, Maintenance and Service Agreement Page 3 of 3 SCHEDULE E: BASELINE ENERGY CONSUMPTION Summary of Annual Energy Use Electric Service is provided by both Holy Cross Energy and the City of Aspen, while natural gas service is provided by Source Gas and AM gas. A) Description and itemization of Current Billing Rates, Including Schedules and Riders Aspen Electric Energy Charge per kWh No demand charge Hoy Cross Energy: General Services -Small Consumer Charge Energy Charge per kWh Wholesale Power Cost Adjust. Minimum Monthly Charge' No demand charge $0.08500 $9.50 $0.07255 Recalculated monthlyi $17.35 General Services -Lame Consumer Charge $26.00 Energy Charge per kWh $0.04442 Wholesale Power Cost Adjust. Recalculated monthlyl No demand charge lSee published tariffs for calculation details. s Used when billed total otherwise would not exceed thls amount. ~, Source Gas: Small Commercial (WS SC-11 Customer Charge per Month $22.39 Energy Charges per Therm Distribution $0.1866 DSMCA3 $0.0033 Gas Cost Adjust. (GCA) Commodity Charge $0.5760 Upstream Pipeline $0.2467 Large Commercial (WS LG1 Customer Charge per Month $22.39 Energy Charges per Therm Distribution $0.1535 DSMCA3 $0.0027 Gas Cost Adjust. (GCA) Commodity Charge $0.5760 Upstream Pipeline $0.2467 Large Commercial Transportation Service (WS LCTS-1) Customer Charge per Month $100.00 Distribution Charge per Therm Maximum Rate $0.1535 Minimum Rate $0.0010 3 Demand Side Management Cost Adjustment City of Aspen, Colorado Schedule E: Baseline Energy Consumption Page 1 of 6 AM Gas Maticeting Corp Gas Commodiri Rate Energy Charge per Thermo $0.703 °This value Is based on billing history for AM Gas only. B) Summary of All Utility Bills for All Fuel Types Electric Service Electrical data provided is a three year average of data from October 2005 through September 2008. Hoy Cross Ener®r 3799 Highway 82 P.O. Box 2150 Glenwood Springs CO, 81602 970-945-5491 Streets Department Acceunt: 388521901 Role: General Service -large Water Departmem Spill BMg. Account: 500460900 Rate: General Service -Small Water Treatment Shed Plant Account: 500263401 Rate: General Service -Small Months kWh Coat Month kWh Cos[ Monttrs kWh Coat January 78,067 $ 990.56 January 71 $ 17.98 January 1,707 $ 149.74 Febmary 15.533 $ 844.57 February 69 $ 17.98 February 1,692 $ 146.32 March 14,533 $ 825.35 March 56 $ 17.97 March 1,417 $ 126.11 April 11,300 S 654.93 April 49 $ 17.94 April 943 $ 87.61 May 9,633 $ 560.80 May 49 $ 17.97 May 791 $ 75.46 June 8,000 $ 456.49 June 47 $ 17.87 June 631 $ 61.28 Jury 7,100 $ 384.55 July 34 $ 17.57 July 360 $ 38.56 August 7,067 $ 363.60 August 35 $ 17.55 August 370 $ 38.27 September 8,733 $ 408.83 September 43 $ 17.34 September 801 $ 66.10 October 12,075 $ 631.93 October 47 $ 17.41 October 1,322 $ 111.50 November 17,667 $ 837.83 November 70 $ 17.45 November 1,224 S 99.33 December 17,367 $ 928.92 December 76 $ 17.92 December 1,595 $ 137.00 Tolah 147,076 7,885.35 344 212.94 12,854 1,137.23 Noy Cross Ener®r Contlnuad GoM CIUbMuse-Cart Bami Account: 501117001 Rate: General Service-Small fiolr ClubhorJea-Cart Bem2 Account 501188300 Rate: General Service-Small colt Clubtwuae Account 501111601 Ra[e: General Service-Large Months kWh Cast Month kWh Cost Months kWh Coat January 467 $ 47.50 January 6 $ 17.40 January 13,440 $ 738.53 February 307 $ 34.49 February 6 $ 17.40 February 12,613 $ 690.03 March 360 $ 39.28 Mamh 6 $ 17.41 Mamh 10,827 $ 619.07 April 1.067 $ 95.25 April 5 $ 17.40 April 9,120 $ 527.55 May 2,493 $ 214.74 May 4 $ 17.37 May 14,347 $ 817.31 June 5,080 $ 426.82 June 16 $ 17.45 June 16,400 $ 920.18 Juty 6,467 $ 518.30 July 41 $ 17.54 Juy 17,120 $ 892.10 August 4,987 $ 399.19 August 75 $ 18.65 August 14,320 $ 742.83 September 4,080 $ 294.82 September 25 $ 17.36 September 13,547 $ 597.26 October 2,180 $ 179.27 October 8 $ 17.39 October 11,460 $ 595.35 November 360 $ 35.56 November 6 $ 17.36 November 9,120 $ 437.32 December 387 $ 40.35 December 6 $ 17.40 December 15,493 $ 828.15 28,233 2,325.57 204 210.13 157,807 8,405.87 ~~*, .,eaq City of Aspen, Colorado Page 2 of 6 Schedule E: Baseline Energy Consumption .e"".. 'ar.+ Vr Hoy Cross F3Nra CoMlnued Parka and Rao OMOe Bldg. Account 500480700 Rate: General Service-Small Parke and Rso Melmerrnce Bldg. Account 283011800 Rate: General Service-Smell Aepan Ree Cellar Account 501252500 Rate: General Service-Large MaMhe kWh Cost MoMhe kWh Coat MoMhe kWh Coat January 3,067 E 225.53 January 2,251 $ 187.30 January 146,800 E 7,873.98 February 2,800 $ 235.14 February 2,293 $ 183.50 February 165,467 $ 8,775.14 Mamh 2,587 $ 226.96 March 2,031 $ 180.82 March 134,800 $ 7,187.52 April 2,120 $ 185.76 April 1,911 $ 169.81 pril 158,687 $ 8,738.95 May 2,360 $ 206.69 May 2,280 $ 199.33 May 188,687 $ 9,433.51 June 2,773 $ 238.31 June 3.295 $ 235.58 une 197,600 $ 10,772.99 July 2,213 $ 183.46 my 2,351 $ 188.82 my 196,133 E 10,008.99 August 2,480 $ 203.42 August 2,747 $ 236.85 ugust 149.200 S 7,481.68 September 2,253 $ 167.37 September 2,191 $ 178.87 eptember 127,733 $ 5,442.70 October 2,540 $ 206.62 October 2,267 $ 196.43 October 167,800 $ 8,281.60 November 3,330 E 254.97 November 2,305 E 178.68 November 175,500 E 7,983.21 December 3,493 E 290.44 December 2,505 $ 219.16 December 188,133 E 6,758.55 32,017 2,824.87 28,428 2,381.14 1,978,500 99,738.72 Aspen Fiebk 219 Puppy SmiN fltl. Aspen CO. 81611 970-920-5148 t8aeae Oaks SMiah SDStlen Account 12303106000 Meter: 3821 WheeMr Open Haan Acmunt 12403376000 Meer: 2590 Cly Hall Axpunt 17770001200 Meter: ]995 Red Bdelt 51dL Acmunt 11801432002 Meter: 1709 Math kWh Cwt Mash kWh Cwt M4nUM kWh Cat Marta kWll Cat lanwry 13.413 E 1,132.33 anus 44,840 4 3.680.31 January $ 1,988.36 aria 50,120 $ 3.789.30 Febma 11333 E 9fi3.69 Febrwry 40.160 f 3.334.41 Febma 38,300 $ 5,209.8fi February 33,840 S 2,750.78 Maroh 7,]80 f 88127 March 38,580 S 3,187.74 March 19,500 S 2.795.88 Marta 29.853 S 2.457.46 April 3.780 $ 336.34 Drll 38,080 S 3,245.80 April 11,900 $ 2A72.88 April 58.187 S 4.236.07 May 1,600 E 153.27 May 34,840 E 2.953.40 May 9,100 S 1,869.36 May 40.027 f 3.079.47 June 453 E 54.73 une 31,560 f 2,617.94 June 9.000 $ 1.658.88 June 39,227 S 3.01107 Jury 480 E 56.81 Juy 33.480 $ 2.]93.09 Juy 8,700 S 1,57186 Juy 37.]60 f 2,918.80 ague( 860 E 87.11 gust 33,480 E 2,]]].79 August 9,000 S 1656.86 August 39,280 S 3,024.13 ptember 3,180 $ 280.55 September 27.540 f 2.293.45 September 9.000 S 1,882.38 September 38.34] E 2.99].87 October 8.800 $ 588.07 Oeober 29,160 4 2,433.54 October 10.200 E 1.74186 October 47,880 S 3,592.47 November 11,173 $ 935.93 November 41,840 4 3,482.87 November 11,500 E 2.175.38 November 47.853 S 3.38160 December 15,547 S 1,300.efi December 39,000 $ 2,802.08 December S 2,812.86 December 43,560 f 3.057.30 pbsls 78,140 6,660A6 420,940 E 95,602.88 131.2(10 27,634.82 508,333 E 98,296.80 Aspen ElecUb CoMlnlled Rb Grande Perking Garege Account: 12303098501 Meter: 3798 Rb Grande YouN Center Account: 12303035001 Meter: 3744 Yelbw Bdck Accounl•12102330001 Meter: 2822 Months kWh Cost Months kWh Cost Months kWh Cast January 65,200 $ 5,395.58 January 5,540 $ 204.52 January 17,493 $ 1,541.26 February 38,520 $ 3,249.44 February 5,400 $ 199.86 February 10,987 $ 1,280.45 March 39,800 $ 3,479.09 Mamh 4,760 $ 217.21 March 11,200 $ 1,017.65 April 30,750 $ 2,705.08 April 4,893 $ 226.30 April 11,680 $ 1,093.44 May 31,260 $ 3,120.36 May 5,320 $ 253.47 May 11,813 $ 1,174.61 June 24,570 $ 2,883.23 June 5,253 $ 271.98 June 10,720 $ 1.507.50 Jury 26,190 $ 2,788.60 Juy 5,627 S 314.74 Juy 9,800 $ 2,027.04 August 28,770 $ 3,060.60 August 6,667 S 369.51 August 10,780 $ 1,715.50 September 26,970 E 2,487.18 September 5,200 S 262.55 September 10,280 $ 2,461.63 October 35,700 E 3,079.71 October 4.720 $ 173.98 October 11,260 $ 1,084.41 November 28,600 S 2,409.74 November 4,560 $ 162.57 November 11,540 $ 1,082.25 December 48,800 E 4,226.85 December 4,960 E 182.74 December 6,667 S 644.63 425,130 S 38,885.44 82,900 E 2,839.43 134,220 E 18,830.38 City of Aspen, Colorado Schedule E: Baseline Energy Consumption Page 3 of 6 Aspen Elactrk: OwtOnued wpenDls tbuae i (Parking Dept) Account: 12303008001 Meter: 13423 wpencls tbuee (Perkins Dept) Account: 12303008500 Meter: 3673 ice OeMen Account: 17770000600 Meter: 7992 Motlare kWh Coat MonOw kWh Coat Months kWh Cost January 1,670 $ 165.03 January 13,787 $ 1,110.57 January 34,860 $ 2,991.28 February - $ 60.01 February 11,040 $ 889.70 February 34,260 $ 2,917.74 March - $ 24.69 March 7,220 $ 605.46 March 36,480 $ 3,113.68 April April 6,133 $ 512.42 April 39,060 $ 3,334.59 May May 4,060 $ 336.31 May 38,580 $ 3,284.94 June - $ 9.30 June 5,707 $ 442.65 June 40,080 $ 3,432.56 Juty 790 $ 112.53 July 5,427 $ 423.58 July 49,140 $ 4,233.25 August 770 $ 121.28 August 4,773 $ 380.31 August 54,960 $ 4,721.51 September 830 $ 128.47 September 5,453 $ 426.61 September 43,800 $ 3,771.30 October 770 $ 110.83 October 7,787 $ 613.43 October 44,640 $ 3,818.55 November 770 $ 90.14 November 14,360 $ 1,116.05 November 64,560 $ 5,511.75 December 1,390 $ 141.23 December 15,040 $ 1,178.16 December 41,880 $ 3,559.80 8,990 S 983.51 100,787 S 8,035.25 522,300 S 44.890.94 Gas Service Gas data provided is a three year averege of data from October 2005 through September 2008. saga. roeeeeeo4]4 wnw n, ]s266a4]4 leoobsamu a9.nsn49 9p13 e144 ww.OepeMwll88M M Ulbl,elr MBa MMnW,MIN a6L I sowrK 20B'JI] AcmurK 611122 Ittoun[284165 Mmu,M ]2841M 4wwunt 284349 MMer N039814 McNr 348844 McM:3]]]]4 MeM 310183 Meter 32%99 fleM. W6 LCIS1 flM:N36G1 flab: W5LG1 flaro'. WBLCS Role. W59G1 Npel~ 111r.11~ 4bl Me1818 TMme RN Mpeb 1Mln Coq SImtlM lllelNle Cat abnBM 1hmM 04M S.SCO f 954.03 an ]8 3 8]01 1wue 2.483 f ?248.26 emery 1631 3 334860 a 518 3 482.15 FErue 4.690 f 83025 Feb,ue 59 3 SG.93 Feduery 3588 f 2.c65.]8 iebuery 1041 3 1.439.11 Fabrvey 534 f 433.04 Meru 4430 3 ]]48] MercM1 40 f 418] MerM ?212 3 L]81.I3 McNi 1142 3 X8.54 MercA O36 f 339.10 nl 3,]20 3 8888] nl 38 3 38.]0 I 3.119 f I,C98.0] II ]02 3 664.95 I 396 f 31.84 M 13A f 44832 M 38 f 3236 Mry 1,830 f 130].21 Mry ]43 f 588.]9 Mry 250 3 2C6.1] lone 340 3 25t 41 u 14 f 2288 a 1,006 3 938.92 u 8.52 3 x]814 u 120 3 12193 Jury f 214.21 luy 6 f 1148 my 436 3 538.81 u BSB f 849.]1 uy 89 S 9331 u [ 169 f 293.2] R [ 5 f 1928 [ 203 S 385.61 WS 3 1,19]88 et 23 3 38.10 gembx 380 f 296.41 Sap4mber 6 3 2098 ptember 325 3 368.43 IRember 1% 3 8115] pbmber 2J f 31 t6 3695 f 483.16 Cer I6 3 33.11 Gar 681 f 94] 33 be, 885 f 920.14 OMber ]2 f 8124 Nmemper 3,IL5 f 685.49 Navsmba 39 3 `A.34 November 1581 3 158813 Noamber 888 3 BIB 50 November 253 3 2]169 pattmbx 5,300 f BBI.]8 OxamCx 53 3 84.33 Mvwnber 1848 S 3665_]6 Ca[ember 1000 3 %5.63 DecemEx 33t 3 321.r 741eY sS,em a]szr su 4e4e] S7ae4 f6AM.r Saar sxsvaa xar s x]44r rr Or Carrtlnued Perko aOOHalorege Whrbr Opera Hauee Clhr Hell Rb 9RMe YSM1M Crmbr AcrounL 820461 AxounL 285646 Account: 291540 Account: 1309797 Meter: 314823 Meter: K039813 Meter: 343645 Meter: 329883 Rate: WS LC3 Rate: WS LCT S-1 Rate: WS SPl Rate: WS LCS ManNa TMmu Cort Months Thermo Coe[ MonUs 7hamp Cast MaMhs Tkemp Coat January 1,965 S 1,792.49 January 3,540 E 884.10 January 881 E 643.38 January 1,359 1,302.77 February 2,024 E 1,612.85 February 2,950 E 589.12 February 857 E 688.79 February 859 S 690.38 March 1,485 E 1,188.06 March 2,730 E 561.18 March 740 f 596.15 March 644 E 520.13 April 1,261 E 1,008.70 April 2,030 E 472.19 pril 775 S 623.88 April 902 E 724.41 May 797 E 841.30 May 1,410 S 393.40 May 479 t 389.48 May 1,170 E 936.65 June 446 E 42185 June 950 S 334.94 one 319 S 300.66 June 739 t 682.88 July 122 E 158.18 Juy 330 E 256.14 Juty 252 E 315.79 July 518 S 638.37 ugust 77 E 103.59 August 215 E 241.53 August 129 f 166.63 August 494 S 609.28 seplember 84 S 111.73 Septemrr 451 E 307.39 September 110 f 120.20 September 380 S 420.46 October 274 S 339.15 October 1,400 E 441.71 October 159 E 188.88 OMOber 401 E 512.76 November 876 E 948.74 November 2,255 E 568.94 November 282 S 289.91 November 705 E 851.48 December 1,160 f 1,072.90 December 2.950 S 589.12 Oacember 482 S 469.52 December 859 E 856.68 10,670 9,886b1 21,410 6A19.78 6,246 4,798.26 9p08 8,748.24 v Y~' City of Aspen, Colorado Page 4 of 6 Schedule E: Baseline Energy Consumption Sawa gas camEawe Yalbrelrx ela. Lgre4 Razes zpE.alt xsua wa.r0al1 Accpum: 266074 Aarount 13449D8 AaaurR 1527802 Acwunt 285003 Meter: 555018 Meter: 374711 Meter. 565496 Meter. 393513 Rate:VS LCI Rate: WSSGl Ra[e: WS SGl Rate: N5 LC7 MwMa Twfmt Cat MwgM nwmn Coat MagM iMna Dwt MaMN TMmr Owl lanary 1,712 f 1,57189 anuery 218 S 21137 Janary 136 f 152.22 angry 742 f 712.47 February 1,948 f 1,552.fi8 Febmary 254 S 21131 February 132 S 124.51 February 862 f 70858 March 1,847 S 1.47270 March 217 f 18202 March 71 f 72.04 Mamh 844 f 67851 April 1,540 f 1,229.60 Ayril 179 f 15193 April 56 f 60.8] April 507 f 41166 May 1,264 E 1,011.08 May 152 E 130.56 May 35 S 41.11 May 424 S 34593 urre 858 E 780.99 June 109 f 109.54 June 12 S 22.70 June 203 i 190.90 Jury 294 f 3fi6.73 1uy 69 $ 93.87 Jury 9 E 22.86 Jury 97 f 127.83 August 75 S SOLSS Augusl 64 f 87.82 gust 30 f 24.21 Augal 89 f 11814 September 61 f 87.93 pamper 67 f 79.62 ptempar 10 E 32.27 ptember 116 f 140.17 October 543 S 649.67 October 79 f 103.16 October 16 f 3376 October 296 $ 377.07 November 971 S 1,040.79 November 138 S 15896 November 36 f 57,27 November 598 S 691.01 December 1.263 S S,Sfi884 December 163 S S6L5fi December 77 f 90.40 December 717 S 68522 12,876 Lt.04606 1708 f 188171 801 E 794.21 8b18 E &18148 8ouros Ow CantlwJStl ke 0eNn2 Ra Can[x Ra88rkk Rb Brantle Pwa9i{BaraBa Acmum: 820971 AcmuM: 787743 AcmuM: 286155 Account 286101 Meer: 377fi46 MHen 8040697 Meter. 328117 Meter. 614281 Bale: WS SGS Rate: N5 LCTSS Rate: WS LGS Rate: W5 LP3 Montle 7hsmM Cwt MmNS 7hMn Cwt MatlM 7Mwu Coat MonNa 7Mrrrr Cat January 588 S 547.82 January 27,650 S 3.942.44 anuary 3.800 S 3,227.92 lanary 1,083 f 1013.88 February 597 E 443.33 Febmary 13.340 S 1909.58 February 4,085 S 3.244.80 Febrary 1,181 S 929.52 March 579 S 468.85 March 10,090 S 1496.54 March 3,341 S 2,655.71 Mamh 919 E 737.89 pril 521 $ 422.74 April 8,370 E 1277.99 pril 2,757 $ 2,193.28 ril 596 E 48214 May 375 S 307.14 May 6,160 4 997.07 May 2,082 $ 1858.78 Mai 412 S 336.43 une 352 S 330.58 June 5.780 $ 848.78 une 893 $ 595.52 urre 216 E 206.92 uy 343 S 426.IS Juy 5.850 E 957.68 uy 48 E 68.42 u 9 S 2111 ugust 807 $ 74fi.30 August 5,925 S 1,085.01 ugust 50 E 70.85 ugat 9 E 2111 ptemwr 593 E 583.51 September 13,185 S 2.357.07 ptember 49 S 98.29 September 34J S 32.27 October 465 E 497.80 October 5.740 S 943.70 rlober 1,272 $ 1,323.Sfi Oclober 261 S 310.00 November 414 E 435.12 November 8,030 S 1234.73 Novemar 1817 S 1,958.24 November 549 S 614.75 December 482 E 445.70 December 11200 S 1637.81 December 2,646 S 2.380b8 December ]83 S 74280 8A81 i 8.8W.83 121300 18,788.14 22,980 E 1Br478.29 ep07 E 8A48.81 C) Identification and Definition of Base Year Consumption and Description of How Established The Base Year Consumption for this project is defined as an average of the monthly utility data from October 2005 through September 2008. This method was chosen due to the fact that It encompassed the most utility data for all meters and used an averege to mitigate the impact of individual weather events. Additional Baseline Statistics Facility Square Footages were determined to be the following: Parking Department 2,498 City Hall 19,684 Wheeler 22.106 Parking Garage 114,000 Streets Building 8,118 Electric Switch Station 2,000 Ice Garden 27,662 Golf Club House 10,208 Water Campus 21,910 Parks/Golf 17,664 Rio Grande 10,000 Red Brick 31,678 Yellow Brick 13,200 Aspen Rec Center 83,000 Total 361,644 City of Aspen, Colorado Schedule E: Baseline Energy Consumption Page 5 of 6 D) Expected Utility Rate Forecast Annual energy escalation rates will be applied to the base year energy rates for each contract year in order to calculate future energy cost savings. These escalation rates have been agreed upon between McKinstry and the Clty of Aspen and will be used for the term of the Performance Contract. The agreed upon escalation rates are shown below, complete with sources and assumptions. There are multiple sources that were used to select these escalation rates and great consideration was given to select values that would allow maximum benefit to the project, while minimizing the risk to the City. Electricity: 3% oer year The electricity escalation rate is a conservative percentage based on the following sources. • 10 year trend of the Consumer Price Index (CPI): 3.1% This escalation rate will remain constant for the term of the contract. Natural Gas: 8% oer year The nature) gas escalation rate is a conservative percentage based on the following sources. • 10 year trend of the CPI: 8.3% • 10 year trend from the Department of Energy's Energy Information Administration (DOE EIA): 9.4% Natural gas escalation rates can swing substantially from one year to the next. For long term averege escalation, the sources cited above are all in agreement, but the actual escalation rate for individual years can vary substantially from the average rate agreed upon above. However, the agreed upon rate is forecasted to be more accurate over the lifetime of a Performance Contract. This escalation rate will remain constant for the term of the contract. Upon commencement of each contract year, the energy cost savings will be calculated using the methodologies and formulas described in Section III and by applying the appropriate escalation to the base year utility rates. City of Aspen, Colorado Page 6 of 6 Schedule E: Baseline Energy Consumption SCHEDULE F: SAVINGS MEASUREMENT AND CALCULATION FORMULAE; METHODOLOGY TO ADJUST BASELINE; MONITORING AND VERIFICATION PLAN FlM # 2.0 - Lighting Upgrades Guaranteed Energy Savings 0 kW 251,689 kWh -1,111 Therms Associated Cost Savings $17,352 Maintenance Savings $3,833 0% of Project Total Savings 31% A) Existing Conditions Most of the lighting throughout the Aspen City facilities is already energy efficient T$ lamps with electronic ballasts or compact fluorescent bulbs. The Parking Garage is currently Ilt with mostly 175 watt metal halide fixtures. There are also many inefficient T-12 fixtures in the office areas of the Parking Garege, Rio Grande Youth Center, Wheeler Opere House, and Streets Building. 8) Description of Equipment to be Installed and How it Shall Function ~.„,. There are some areas where it is cost effective to upgrade to more efficient lighting. It is recommended that all T-12 magnetic ballast fixtures be retrofit with T-8 electronic ballasts. It Is also recommended that the fixtures in the Parking Garage be upgreded to linear fluorescent vapor tight fixtures. There are also many areas that could realize savings from occupancy sensors. C) Savings Calculations Energy Use and Cost Base Year Energy Use 0 kW 293,772 kWh 0 Therms Base Year Energy Cost $24,971 Post-Retrofit Energy Use 0 kW 51,422 kWh 1,468 Therms Post-Retrofit Energy Cost $5,706 ii. Supporting Calculations The steps for calculating the energy savings generated from retrofitting Ilght fixtures is as follows: ~"' City of Aspen, Colorado Page 1 of 22 Schedule F: Savings Measurement and Calculation Formula; Methodology to adjust Baseline; Monitoring and Verification Plan Determine Wattage Reduction The wattage guide published by Xcel Energy Ls used to determine fiMUre specific power consumption values. Subtrecting the post-retrofit power consumption to the pre•retrofit power consumption yields the wattage reduction per fiMUre. Fixture Wattage-Fixture Wattage kW = Pre-2etront Post-2etroFlt sAVeD 1000wa~j~w Determine Actual Consumption Reduction Aker data logging is complete, the actual consumption reduction generated by the lighting retrofit is calculated using the following formula: kWh =l kW xLightingRuntime1-( kW xLightingRuntimel SAVED ANNUALLY Ezistlng Measured (Exis[Ing) J lProPosed Measured (Proposed) lJ Some rooms will have occupancy sensors installed. In these cases, the proposed measured runtime is equal to the measured occupancy. For all other rooms, the existing and proposed lighting runtimes are the same. The table below shows the number of occupancy sensors that will be Installed in each facility. Building Number of Occupancy Sensors Aspen Rec Center 10 City Hall q3 Electric Switch Station 3 Parking Garage Offices 10 Golf Clubhouse 7 Ice Garden 6 Parking Department Building 2 Parks and Rec 12 Red Brick 24 Rlo Grande Building 6 Streets 5 Water Treatment Plant 9 Yetlow Brick 3 Determine HVAC Interaction For every unique space that has heating and/or cooling, the Impact of each individual lighting retrofit is analyzed for its annual impact on those heating and cooling systems. According to the Lighting Design Lab, as shown on their webslte at htto•//www LightlnEdeslgnlab com, "Robert Rundquist, PE, offers a formula with supporting data and estimates to assess air cooling savings. Rundquist, president of R.A. Rundquist Associates of Northampton, MA, is a professional engineer with more than 25 years of experience in HVAC design, energy analysis and energy calculation research. His formula was derived from Independent research and research conducted by the American Society of Heating, Refrigeration and Afr- City of Aspen, Colorado Page 2 of 22 Schedule F: Savings Measurement and Calculation Formula; Methodology to adjust Baseline; Monitoring and Verification Plan Conditioning Engineers (ASHRAE), and has been validated by DOE-2 computer runs and other methods." On the Lighting Design Lab website, a table is provided that lists 153 U.S. cities with their cooling seasons expressed in weeks. The following Colorado titles are listed in this table with their corresponding cooling season weeks. COLORADO Coloredo Springs 21.6 Denver 22.6 Grend Junction 23.7 Trinidad 25.4 Aspen is not on the Ilst provided by the Lighting Design Lab and has considerably different weather patterns from any city on the list. Historical weather data was analyzed to determine that a conservative estimate of the cooling season In Aspen is approximately 10 weeks. By dividing by 52, the number of weeks can be converted to a fraction of the year and used to determine the additional cooling savings and/or heating costs. Heating penalty and cooling savings are calculated on a space by space basis taking Into account whether the space actually has heating or cooling. In order to calculate the cooling savings, the following equation was proposed by Rundquist on the Lighting Design Lab site. Fraction of Lighting Savings as Air Cooling Savings - A x B = C • A -Fraction of the year that is the cooling season. • B -Erection of the lighting load met by mechanical cooling. Rundquist stipulates that this fraction is 90%. • C -System's coefficient of pertormance (COP) By using the above equation and the following variables, the frection of total lighting savings as air cooling savings for each facility can be calculated. A _ 23.7 Weeks = 0.46 52 Weeks B-90% C -See below for facility heating efficiencies Combining the frection obtained above with the energy savings in each space that has cooling will yield the total air cooling savings for each facility as shown in the table following the calculation of the additional heating costs. In order to calculate the additional heating costs, the following equation was proposed by Rundquist on the Lighting Design Lab site. Extra Heat Required(Therms)= AxBxC=D 100,000 BT~erm • A ' Heating Season - 1 -Fraction of the Year Representing the Cooling Season Liberel estimate of the heating season, as there are times during the year when the building is neither heated nor cooled. ``" City of Aspen, Colorado Page 3 of 22 Schedule F: Savings Measurement and Calculation Formula; Methodology to adjust Baseline; Monitoring and Verification Plan • B -Fraction of the Lighting Reduction that Has to Be Made Up by Heating A portion of the lighting heat is released at night. This figure is estimated at 20%. C -Annual BTU Equivalent of Lighting Saved: Lighting reduction in kWh multiplied by 3,414 British Thermal Units (BTU). D -Seasonal Heating Efficiency Estimate of basic efficiency of heating system. ey using the above equation and the following variables, the additional heating required for the facility is calculated. A -1 23.7 weeks 0.54 52weeks ) B = 20% C =kWh x 3~4148TU SAVED kWh D =Thermal efficiency of heating system The total heating penalty for all the facilities is 1,189 Therms and the cooling credit is 4,172 kWh. Determine Total Annual Savings The total savings generated by the lighting retrofits can finally be determined by combining the lighting energy savings with the HVAC Interaction results. The formula for calculating the total annual cost savings is: $ Saved kWh x~ + kW x~x Months /~ x 90%+ (Heating Penalty$~ Annually - (SavedAnnually kWh) (SavedMOnthly kW Demand A guarantee factor of 95%will be used on all savings components. See Appendix Afor groom-by-room spreadsheet detailing the savings. Material Savings Determination The annual avoided parts savings are based on having new lighting fixtures that will not require lamp and ballast replacement for some time. The parts savings are based on the following assumptions: • Rated lifetimes of existing and proposed lamps • Rated lifetimes of existing and proposed ballasts • Actual lamp and ballast counts are used These maintenance savings an; only claimed for three (3) years due to most warranty lengths even though the savings will likely persist longer than three years. City of Aspen, Colorado Page 4 of 22 Schedule F: Savings Measurement and Calculation Formula; Methodology to adjust Baseline; Monitoring and Verification Plan D) Estimate of Average Useful Service Life of Equipment The estimated average useful service Iite of any new Ilghting fixtures will be 10 years. The estimated life of bulbs and ballasts Is given In run hours so amount of time before they will need to be replaced depends on the run hours per year. Ballasts are estimated to last for 55,000 run hours. The table below shows the estimated life expectancy of the new bulbs. Bulb Tvoe Llte Exoectanpl [hrsl Compact Fluorescent Bulb 10,000 Linear Fluorescent TS 20,000 LED Exit Sign 100,000 E) Preliminary Measurement and Verification Plan Measurement and verification of energy savings for the Ilghting retrofits will be pertormed according to the Federel Energy Management Program (FEMP) publication, M&V Guidelines: Measurement and Verification for Federal Energy Projects Version 2.2. Typically, a table of standard wattages is used for baseline and proposed lighting fixtures, and lighting hours are metered for a sample of each usage group. Post retrofit verification will be performed according to IPMVP option A. Inspections of random proposed Ilghting fixtures will be pertormed annually to prove the persistence of the energy savings. Details will be discussed in an annual report. F) Discussion of Facility Impacts Upon Completion of Contract Operations and maintenance personnel can expect to replace less lamps and ballasts, especially in the first few years after the retrofit. Maintenance personnel will be trained on the proper way to submit for warrantee claims on failed lighting materials. There are no foreseen compatibility Issues with any other building systems that will result from the implementation of this FIM other than the HVAC interection that is accounted for within this FIM. ""' City of Aspen, Colorado Page 5 of 22 Schedule F: Savings Measurement and Calculation Formula; Methodology to adjust Baseline; Monitoring and Verification Plan FlM # 3.0 -Vending Misers Guaranteed Energy Savings 0 kW 5,788 kWh 0 Therms Associated Cost Savings $356 Maintenance Savings $0 0% of Project Total Savings 1% A) Existing Conditions Currently, there are three (3) refrigereted beverage vending machines In the City of Aspen that are not Energy Star rated or do not have Vending Miser units installed. One is located at City Hali and the other two are at the Golf Clubhouse. B) Description of Equipment to be Installed and How it Shall Function Each refrigereted beverage vending machine shall be equipped with a Vending Miser. When equipped with a Vending Miser, the machines use less energy and are comparable in daily energy performance to new Energy Star qualified machines. The vending misers shall be installed by McKinstry personnel. There will be no impact on facility operations and maintenance procedures. C) Savings Calculations i. Energy Use and Cost Base Year Energy Use 0 kW 10,482 kWh 0 Therms Base Year Energy Cost $891 Post-Retrofit Energy Use 0 kW 6,294 kWh 0 Therms Post-Retrofit Energy Cost $535 ii. Supporting Calculations Vending Miser savings calculations and overall performance have undergone significant review by the Environmental Protection Agency (EPA) and the General Services Administration (GSA). The on-line tool available at the link below was used for all savings calculations. htto•//www usatech com/enerEV manaeemen /enerEV calculator h{LR The energy savings genereted from the on-line tool are summarized below. City of Aspen, Colorado Page 6 of 22 Schedule F: Savings Measurement and Calculation Formula; Methodology to adjust Baseline; Monitoring and Verification Plan Number of Facility Total Total Refrigerated Occupied Current Proposed Total Beverage Hours per Usage Usage Savings Building Machines Week (kWh] (kWh] [kWh] Ci Hall 1 58 3,494 1,588 1,906 Clubhouse 2 56 6,988 3,106 3,882 These energy cost savings have been calculated using the base year energy retes described in Section II.A. This FIM is not expected to interest with any other building systems. D) Estimate of Average Useful Service Life of Equipment Due to the simplicity of the Vending Misers, each unit is expected to last as long as the vending machine. The estimated average useful service life of the equipment is 10 years. E) Preliminary Measurement and Verification Plan The savings from this measure will be verified using IPMVP option A. The installation will be inspected annually to verify that the units remain installed the manufacturer's Instructions and the vending misers will be counted to ensure that all installed units remain installed. F) Discussion of Facility Impacts Upon Completion of Contract There are no foreseen facility impacts that will result from the Implementation of this FIM. `"' City of Aspen, Colorado Page 7 of 22 Schedule F: Savings Measurement and Calculation Formula; Methodology to adjust Baseline; Monitoring and Verification Plan FlM N 8.1-Programmable Thermostats In tha Rlo Grande Building Guaranteed Energy Savings 0 kW 0 kWh 533 Therms Associated Cost Savings $485 Maintenance Savings $0 0% of Protect Total Savings 1% A) Existing Conditions The HVAC systems in the Rio Grande Youth Center are controlled by a conventional non- programmable thermostat. B) Description of Equipment to be Installed and How it Shall Function It is recommended that the existing thermostats be replaced with 5/2<lay progremmable thermostats. The programmable thermostats will setback the space temperature setpoint during times that the building is not being used. The progremmable thermostats shall be progremmed to operate on the following schedule: Week Days: lam-5pm Heat 70°F All other hours Heat 62°F Weekends: All hours Heat 62°F The new thermostats shall be installed with locking thermostat covers or lockable password protected keypads to keep unauthorized personnel from changing the schedule and tempereture set points. C) Savings Calculations i. Energy Use and Cost Base Year Energy Use 0 kW 0 kWh 3,324 Therms Base Year Energy Cost $3,025 Post-Retrofit Energy Use 0 kW 0 kWh 2,791 Therms Post-Retrofit Energy Cost $2,540 ii. Supporting Calculations The savings were calculated using a spreadsheet tool that was developed by the U.S Environmental Protection Agency (EPA) and U.S. Department of Energy (DOE) called the "Life Cycle Cost Estimate for Energy Star Qualified Programmable Thermostat(s)." City of Aspen, Colorado Page 8 of 22 Schedule F: Savings Measurement and Calculation Formula; Methodology to adjust Baseline; Monitoring and Verification Plan The energy savings generated from the spreadsheet tool are summarized below. All savings are multiplied by a Berating factor of 95%. xis mg as ropose as onsump ron o a era e Consumption Consumption Savings Savings herm r herm r harms harms 3324 2763 561 533 D) Estimate of Average Useful Service Life of Equipment Due to the simplicity of the programmable thermostat, each unit is expected to last as long as the furnace or HVAC equipment it is controlling. The estimated average useful service life of the equipment will be 15 years. E) Preliminary Measurement and Verification Plan The savings from this measure will be verified using IPMVP option A. The installation and program will be inspected annually to verify that the unit remains Installed per the manufacturer's Instructions and that the schedule remains unchanged. If the City directs McKinstry to set longer occupied schedules, or if the City modifies the schedules, the guarenteed savings will still be deemed met. F) Discussion of Facility Impacts Upon Completion of Contrect Any staff using the areas served by the new thermostat outside of the normal occupied hours will notice reduced heating temperature setpoints and may initiate comfort complaints. ``"' City of Aspen, Colorado Page 9 of 22 Schedule F: Savings Measurement and Calculation Formula; Methodology to adjust Baseline; Monitoring and Verification Plan FlM 19.2 - Progremmabb Thermostaffi at Red Brick Guaranteed Energy Savings 0 kW 0 kWh 523 Therms Associated Cost Savings $476 Maintenance Savings $0 0'Yo of Protect Total Savings 1% A) Existing Conditions Currently the Red Brick building is predominately heated by steam radiators converted to hot water controlled by conventional thermostats. B) Description of Equipment to be Installed and How it Shall Function It is recommended that the existing thermostats be replaced with 7-day programmable thermostats. The programmable thermostats will setback the space temperature setpoint during times that the building is not being used. Since the thermostats control hydronic radiant heating system it is not recommended to set them back more than 5° F at night so that the rooms are able to recover quickly in the morning. The programmable thermostats shall be progremmed to operate on the following schedule: Week Days Gam-12am Heat 72°F .way. All other hours Heat 67°F Weekends: Gam-12am Heat 72°F All other hours Heat 67 ° F The new thermostats shall be Installed with locking thermostat covers or lockable password protected keypad to keep unauthorized personnel from changing the schedule and tempereture set points. C) Savings Calculations i. Energy Use and Cost Base Year Energy Use 0 kW 0 kWh 4,259 Therms Base Year Energy Cost $3,876 Post•Retrofit Energy Use 0 kW 0 kWh 3,736 Therms Post-Retrofit Energy Cost $3,399 City of Aspen, Colorado Page 10 of 22 Schedule F: Savings Measurement and Calculation Formula; Methodology to adjust Baseline; Monitoring and Verification Plan ii. Supporting Calculations The savings for this measure was determined by calculating the building UA using the building constructions and surtace areas, and then using a BIN calculation to determine the savings from changing the indoor setpoint for the hours of 12am to Gam yearround. D) Estimate of Average Useful Service Life of Equipment Due to the simplicity of the programmable thermostat, each unit is expected to last as long as the furnace or HVAC equipment it Is controlling. The estimated average useful service life of the equipment will be 15 years. E) Preliminary Measurement and Verification Plan The savings from this measure will be verified using IPMVP option A. The Installation and program will be inspected annually to verify that the unit remains Installed per the manufacturer's instructions and that the schedule remains unchanged. If the City directs McKinstry to set longer occupied schedules, or if the City modifies the schedules, the guaranteed savings will still be deemed met. F) Discussion of Facility Impacts Upon Completion of Contrect Any staff using the areas served by the new thermostat outside of the normal occupied hours will notice reduced heating temperature setpoints and may initiate comfort complaints. City of Aspen, Colorado Page 11 of 22 Schedule F: Savings Measurement and Calculation Formula; Methodology to adjust Baseline; Monitoring and Verification Plan FlM #i2i1- Retro•Commisslon the Yellow Brick Building Guaranteed Energy Savings 0 kW 0 kWh 1,156 Therms Associated Cost Savings $1,052 Maintenance Savings $0 0% of Project Total Savings 2% A) Existing Conditions The existing automation system at Yellow Brick was observed to have many COs sensors out of calibretion and air handling unit tempereture profiles that did not correlate to the damper positions displayed on the graphics. B) Description of Equipment to be Installed and How it Shall Function It is recommended that a retrocommissioning study be performed to improve the function of existing system, verify proper operation of outside air dampers and demand controlled ventilation, calibrate COs sensors and optimize the space heating hot water system. C) Savings Calculations Energy Use and Cost Base Year Energy Use 0 kW 0 kWh 11,559 Therms Base Year Energy Cost $10,519 Post-Retrofit Energy Use 0 kW 0 kWh 10,403 Therms Post-Retrofit Energy Cost $9,467 ii. Supporting Calculations The savings calculation for this measure is based on observations made during the audit of the building and the DDC system and typical percentage savings realized from recommissioning studies of similar buildings with similar controls issues. Due to the issues observed with the COs sensors and the outside air damper control it was determined that a recommissioning study will provide a savings of 5% of the annual heating energy consumption of the building. D) Estimate of Average Useful Service Life of Equipment The age and remaining useful equipment life of the existing equipment will be determined as part of the retrocommissioningscudy. City of /lspen, Colorado Page 12 of 22 Schedule F: Savings Measurement and Calculation Formula; Methodology to adjust Baseline; Monitoring and Verification Plan E) Preliminary Measurement and Verification Plan The savings from this measure will be verified using IPMVP option A. The savings associated with this FIM will be calculated during the Implementation of this measure. Each year, trends will be run to verify the setpoints and schedules compared to the as-builts. For example the following points may be trended to verify the savings associated with re• calibrating C02 sensors: • C02 sensor reading • outside air damper position Another example is the points that will be trended to verify savings associated with replacing a faulty hot water valve: • hot water valve position • discharge air temperature If set points or schedules have changed from the as-buitts, savings will be recalculated and updates will be noted on the as-built documentation. Any problems with the total savings will be noted in the annual measurement and verification report. F) Discussion of Facility Impacts Upon Completion of Contrect Discussions with facility operators will be scheduled in order to ensure there are no negative impacts on occupants due to scheduling changes. However some occupants in the buildings after occupied hours (such as Janitorial Staff and Faculty working outside normal school hours) will notice reduced temperature settings in the heating season as well as reduced airflow and ventilation rates. Other impacts may arise from additional measures identified in Phase I of the investigation, these Impacts will be documented and presented to the owner in the recommissioning report. `"" City of Aspen, Colorado Page 13 of 22 Schedule F: Savings Measurement and Calculation Formula; Methodology to adjust Baseline; Monitoring and Verification Plan FlM #35.1- Custom Low Profile Tank Covers Guaranteed Energy Savings 0 kW 0 kWh 0 Therms Associated Cost Savings $0 Maintenance Savings $0 0% of Project Total Savings 0% A) Existing Conditions The clarifying tanks at the water treatment plant are open to the weather which allows air- borne debris to fall into the water and ice to form on the top. B) Description of Equipment to be Installed and How it Shall Function Facilities staff asked McKinstry to investigate installing low profile custom tank covers on the tanks to prevent debris from falling into the tanks. Facility Operations and Maintenance Procedures that Shall be Affected by Installation/ Implementation After the installation of the tank covers, Facility Staff will not have to spend as much time clearing debris from the clarifying tanks. Access to the tanks will be limited to the doorway to the tank covers and access from the walkway inside the covers. C) Savings Calculations There is no energy savings associated with this measure. D) Estimate of Average Useful Service Life of Equipment The estimated useful service life of the new tank covers is 50 years. E) Preliminary Measurement and Verification Plan This does not apply since there are no guarenteed savings associated with this measure. F) Discussion of Facility Impacts Upon Completion of Contract Operetions and Maintenance Impacts The cover should reduce the amount of time spent cleaning debris and Ice out of the clarifying tanks. The covers will not completely eliminate Ice build up in the tanks as they do not have a heat source so it is possible that Ice build up will continue to be a concern. If significant work will need to be performed on the clarifying tanks it may be necessary for the City of Aspen to remove all or parts of the tank covers which is a cost that Is virtually impossible to predict until the service Is actually required. City of Aspen, Colorado Page 14 of 22 Schedule F: Savings Measurement and Calculation Formula; Methodology to adjust Baseline; Monitoring and Verification Plan ii. Staffing Impacts No changes have been forecasted as a result of this FIM being Implemented. Staffing changes are the responsibility, and at the discretion, of the Clty. Ili. Parties Responsible for Maintenance The existing Facility Staff will be responsible for all newly Installed equipment maintenance. iv. Compatibility Wlth Existing Systems The new tank covers shall be compatible with all existing systems and equipment. °° City of Aspen, Colorado Page 15 of 22 Schedule F: Savings Measurement and Calculation Formula; Methqdology to adjust Baseline; Monitoring and Verification Plan FlMlf46.1-Window Upgrades at Streets Guaranteed Energy Savings 0 kW 0 kWh 0 Therms Associated Cost Savings $0 Maintenance Savings $0 0% of Project Total Savings 0% A) Existing Conditions Currently the Admin Building of the Street department has double pane aluminum frame windows that are loose in the sashes and leaky. The staff Installs plastic over the windows in the winter to block the drafts from the windows. B) Description of Equipment to be Installed and How it Shall Function It is recommended that these windows be replaced with new double pane windows with a thermal break. C) Savings Calculations There is no energy savings associated with this measure. Facility personnel currently install plastic over the windows in the winter to eliminate drafts, thus air infiltration will not be noticeable improved. The new window assemblies also do not have an improved thermal performance over the existing windows. D) Estimate of Average Useful Service life of Equipment The estimated useful service life of the new windows is 15-20 years. E) Preliminary Measurement and Verification Plan This does not apply since there are no guaranteed savings associated with this measure. ~ Discussion of Facility Impacts Upon Completion of Contrect Facility Staff will no longer need to install plastic covers over the windows in the winter time. They will also have the ability to open the windows in the swing seasons whereas now they may not want to remove the plastic due to the possibility of more cold weather before the end of the winter season. City of Aspen, Colorado Page 16 of 22 Schedule F: Savings Measurement and Calculation Formula; Methodology to adjust Baseline; Monitoring and Verification Plan FlM #49.1- VFDs on Pool Pumps at ARC Guaranteed Energy Savings 0 kW 111,239 kWh 0 Therms Associated Cost Savings $5,562 Maintenance Savings $0 0% of Project Total Savings 8% A) Existing Conditions Currently the pool pumps at the Rec Center are constant volume and are pumping more than the recommended pool filtration flow rates. B) Description of Equipment to be Installed and How it Shall Function It is recommended that they be retrofit with variable frequency drives (VFD) in order to slow the pumps down at night, during periods of low use and when the filters are clean. i. Facility Operations and Maintenance Procedures that Shall be Affected by Installation /Implementation Facility Staff will need to assist McKinstry personnel in "tuning" pump schedules and initial speed settings in order to maximize energy savings and maintain the existing quality standards for the cleanliness of the pools. There will be an initial period of slowing down the pumps until we have reached a point at which they cannot be slowed down any more without compromising the pool clarity and cleanliness. Facility Staff will need to assess the pool condition to make sure it is acceptable. Facility Staff will also have the ability to ramp up the pumps to full speed in the case of pool contamination. The existing pumps will need to be disabled temporarily while the motors are replaced and the VFDs are connected and started up. All efforts will be made to minimize the amount of pump downtime. C) Savings Calculations i. Energy Use and Cost Base Year Energy Use 0 kW 277,429 kWh 0 Therms Base Year Energy Cost $13,871 Post-Retrofit Energy Use 0 kW 166,190 kWh 0 Therms Post-Retrofit Energy Cost $8,310 o.. City of Aspen, Colorado Page 17 of 22 Schedule F: Savings Measurement and Calculation Formula; Methodology to adjust Baseline; Monitoring and Verification Plan ii. Supporting Calculations Methods Used* This calculation was fairly straightforward and the same process was utilized for the Training, Raised Spa and Family Pool pumps. Equipment Information such as Instantaneous power draw, runtime, and flow was collected regarding the motor intended for the VFD addition. Pool water volume was noted as well as the minimum turnover time required by the Department of Health to ensure proper water filtration. Using this information, the existing pool turnover time for both pools was calculated. Comparing this time to the Health Department value, results in a % flow reduction potential for the pump. Using the reduction potential, a proposed flow can be calculated for the pump to operate on once the VFD is installed. Finally, using the Pump Affinity Laws and converting to kW: HP, 25 =HPZ *0.746=kW GPM, GPMz A proposed power can be found for the pump controlled by the future VFD. Now having our existing and proposed operetion parameters we're able to multiply by a cost per kWh to find the cost savings. Assumptions The assumptions applied to this calculation were the following Department of Health Turnover Time: 5hrs or less Training Pool Size: 118,212 Gal. Family Poof Size: 84,241 Gal. Raised Spa Size: 4,869 Gal. Facility Occupied Hours: 4,836 hrs/yr Facility Unoxupied Hours: 3,924 hrs/yr Electric Rate Applied: $0.05/kWh D) Estimate of Average Useful Service Life of Equipment The VFDs have an estimated service Ilfe of approximately 15 years. E) Preliminary Measurement and Verification Plan The savings from this measure will be verified using IPMVP option A. Installation, programming and sequences will be inspected annually to verify Integrity of the system's commissioned state. Upon the completion of commissioning instantaneous power draw measurements will be taken at various VFD speeds to ensure that the savings can be met gven the VFDs operate per the new schedule. Short term trends of equipment performance will be taken and analyzed to ensure equipment is operating according to the schedule and parameters set forth for savings estimate. Alterations to the commissioned baseline and their effects will be discussed in an annual report. The points that will be fronded are: • VFD status • VFD speed • Flow rate for each pool City of Aspen, Colorado Page 18 of 22 Schedule F: Savings Measurement and Calculation Formula; Methodology to adjust Baseline; Monitoring and Verification Plan -- F) Discussion of Facility Impacts Upon Completion of Contract ^° i. Operations and Maintenance Impacts The pumps will automatically control their speed to provide a constant flow to the pool filters so Facility Staff will no longer need to continually monitor the flow and manually adjust the balancing valves. ii. Staffing Impacts No changes have been forecasted as a result of this FIM being Implemented. Staffing changes are the responsibility, and at the discretion, of the City. iii. Budget Impacts Any budget changes made should be done so considering the effect of the whole project, and not Individual FIMs. iv. Parties Responsible for Maintenance The existing Facility Staff will be responsible for all newly Installed equipment maintenance. v. Compatibility With Existing Systems All Installed equipment shall be compatible with existing systems. °' City of Aspen, Colorado Page 19 of 22 Schedule F: Savings Measurement and Calculation Formula; Methodology to adjust Baseline; Monitoring and Verification Plan FlM X511-Waste Heat Recovery at ARC Guaranteed Energy Savings 0 kW -198,589 kWh 47,630 Therms Associated Cost Savings $33,414 Maintenance Savings $0 0% of Project Total Savings 49% A) Existing Conditions Currently the ice rink at the Aspen Recreation Center uses an ammonia based refrigeration system to maintain the ice. The system uses waste heat from the refrigeration process to heat a warm floor underneath the rink, melt snow from the ice resurfacer and heat domestic hot water for the building via a de-superheater. The rest of the heat Is rejected to the atmosphere by way of a cooling tower. The Recreation Center also has a pool that is heated using the building's space heating hot water boilers, hot water circulation loop and a series of heat exchangers that heat the pool water. B) Description of Equipment to be Installed and How it Shall Function A condensing heat exchanger shall be installed in the ice rink refrigeretion system in parallel with the cooling tower. The heat exchanger shall use waste heat from the high pressure ammonia gas to heat a water loop that will be used tc heat the pool. Since the water that is heated by the heat exchanger will not be warm enough to heat the pool directly, awater-to- water heat pump will be used to increase the tempereture of the water to a temperature that is hot enough to heat the pools using the existing heat exchangers. Since the refrigeration plant does not run constantly and cycles on a need for refrigeration, a thermal storage tank will be installed to store water heated by the refrigeretion plant so that the heat pump will have a steady supply of warm water. C) Savings Calculations Energy Use and Cost Base Year Energy Use 0 kW 0 kWh 56,176 Therms Base Year Energy Cost $51,120 Post-Retrofit Energy Use 0 kW 198,589 kWh 8,546 Therms Post-Retrofit Energy Cost $17,706 City of Aspen, Colorado Page 20 of 22 Schedule F: Savings Measurement and Calculation Formula; Methodology to adjust Baseline; Monitoring and Verification Plan ii. Supporting Calculations In order to calculate the savings for this measure the waste heat available from the refrigeration plant was estimated. With the help of the equipment manufacturer and taking into consideration all the other systems that use heat from the refrigeration plant the remaining waste heat was estimated to be 1,200 MBH when the plant is running. It was assumed that the plant runs 40% of each hour to meet the load of the ice rink, after applying a safety factor to be conservative the resulting averege hourly production was calculated to be 442 MBH of heat. The energy consumed by the heat pump in order to meet the temperature requirements of moving the heat to the pool was calculated by using the following equation: MBHwasleheat x 8760 hY~y kWhnQe1p,,,„p = COPneO,pamP x 3412 Where: kWhneatpamp =Annual electrical energy consumed by the heat pump MBHwasteneat =Heat provided by the refrigeration plant COPneatpump -Coefficient of performance of the heat pump The gas savings for the measure was calculated by taking the amount of heat provided by the heat pump and dividing it by the efficiency of the boiler plant in order to calculate the amount of nature) gas consumption that would be avoided. The efficiency of the boiler plant was assumed to be 94%. The monthly pool load was estimated by averaging the summertime natural gas utility bills and subtrecting 20% for domestic hot water consumption. This was then Win. used to determine an averege hourly pool load, which was compared to the heat produced by the waste heat recovery system to ensure that all heat produced by the system would be able to be used to heat the pool. D) Estimate of Average Useful Service Life of Equipment The heat pump and associated equipment has an estimated service life of approximately 20 years. E) Preliminary Measurement and Verification Plan The savings from this measure will be verified using IPMVP option A. The Input and output temperatures of the heat pump will be trended for a minimum two week period (since the pool and Ice rink load is relatively constant throughout the year) and the heating energy produced and the electrical penalty to produce that energy will be calculated. The installation and settings will be inspected annually to verify that the units remain Installed and that the settings remain unchanged. If the City directs McKinstry to change settings, or if the City modifies the settings, or if the City disables the Ice rink refrigeration system for a prolonged period of time the projected savings will have to be recalculated to determine the impact. If the ice rink refrigeration system is disabled for more than one day the savings guarantee will be prorated based on the amount of time the refrigeration system is disabled and the prorated savings will be used to determine If the guarantee is deemed to be met. "'"' City of Aspen, Colorado Page 21 of 22 Schedule F: Savings Measurement and Calculation Formula; Methodology to adjust Baseline; Monitoring and Verification Plan F) Discussion of Facility Impacts Upon Completion of Contract I. Operetions and Maintenance Impacts The new heat pump and associated circulation pumps will require periodic ongoing maintenance that will be the responsibility of the Facility Staff. If the new heat recovery system needs to be disabled for maintenance purposes the ice refrigeration system will continue to operate as it does now, using the cooling tower to reject any excess waste heat. ii. Staffing Impacts No changes have been forecasted as a result of this FIM being implemented. Staffing changes are the responsibility,end at the discretion, of the City. iii. Budget Impacts Any budget changes made should be done so considering the effect of the whole project, and not individual FIMs. iv. Parties Responsible for Maintenance The existing Facility Staff will be responsible for all newly Installed equipment maintenance. v. Compatibility With Existing Systems The new heat pump and associated piping shall be compatible with existing equipment that is associated with the existing space heating hot water loop. The condensing heat exchanger shall be compatible with the existing refrigeration plant , and the ice rink refrigeration plant shall be able to operate normally in the event that the heat exchanger and associated het recovery equipment is disabled. 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Fm- to 9 m E 'm a`$ O.N Q p ~ ~ O ~ L m a0 SCHEDULE H: SYSTEMS START-UP AND COMMISSIONING; OPERATING PARAMETERS OF INSTALLED EQUIPMENT ^°~ Systems Startup and Commbaloning FlM 2.0 - LIgltUng Upgrades CommissioninE Plan Due to the straightforward nature of lighting retrofits, the only commissioning that will be performed by the CONTRACTOR Is to randomly check fixtures to ensure that they have been retrofit with the prescribed retrofit and that all warranty Information has been explained to facility personnel. The table below will be used to verify that all commissioning for this measure is complete. y B/ MNn hfN/p LIGHi1NG UPGRADES -COMMISSIONING Location/Facility: All Date of Inspection Random linear fluorescent fixtures checked? ^ Yes ^ No Any incorrect T-8 retrofits discovered? ^ Yes ^ No Random compact fluorescent fixtures checked? ^ Yes ^ No Any incorrect CF retrofits discovered? ^ Yes ^ No Owner trained on proper maintenance and warranty procedures? ^ Yes ^ No Owner provided with product Information cut sheets? ^ Yes ^ No Visual Inspection Notes: Other Notes: McKinstry Signature & Date Signature Date Witness Signature & Date Signature Date City of Aspen Colorado Page 1 of 5 Schedule H: Systems Start-Up and Commissioning Operating Parameters of Installed Equipment FlM 3.0 -Vending Misers Commissioning Plan '""*~ Each installed vending miser will have its installation inspected to verify that it matches the method described by the manufacturer. The owner will be trained on maintaining the equipment and the vending machine company will be notified that they are not to remove the installed equipment without the express written consent of the City of Aspen. The table below will be used to verify that all commissioning for this measure is complete. i~stry 0l Nra MIINy VENDING MISER -COMMISSIONING Date of Inspection All vending misers in the scope have been installed correctly per the manufacturer's instructions? ^ yes ^ No Owner's representative has been trained on the operation and maintenance of all new units? ^ Yes ^ No Vending machine company has been notified that they are not to remove the vending misers without the written consent of the CITY? ^ yes ^ No Notes: McKinstry Signature & Date Signature Date Witness Signature & Date Signature Date City of Aspen Colorado Page 2 of 5 Schedule H: Systems Start-Up and Commissioning Operating Parameters of Installed Equipment FlMs 6.1 and 19.2 -Programmable Therrnostab Commissioning Plan CONTRACTOR shall verify that programmable thermostats have been installed, and that the agreed upon schedule Is in place. 1. Verify that (24) programmable thermostats have been Installed according to the scope and properly control the respective units. 2. Verity that old thermostats have been removed and the old location is clean and free of blemishes. 3. Interview owner's representative to verify that maintenance staff has been trained on the operation and maintenance of all new units. 4. Check with customer to verify that 0&M manuals exist on site. 5. Inspect thermostat scheduling and setback temperatures and compare to the values in the FIM scope. Note any differences and work with the district to modify schedules and temperatures to match design. The table below will be used to verify that all commissioning for this measure is complete. i~stry ~~~~ PROGRAMMABLETHERMOSTATS -COMMISSIONING Date of Inspection All (24) new programmable thermostats have been installed? ^ Yes ^ No All (24) old programmable thermostats have been removed from the site? ^ Yes ^ No Programmable thermostats properly control the respective HVAC units? ^ Yes ^ No Owner's representative has been trained on the operation and maintenance of all new units? ^ Yes ^ No Old thermostat locations are clean and free of blemishes? ^ Yes ^ No Thermostat schedules and set point reflect the agreed upon values in the scope? ^ Yes ^ No 0&M Manuals are on site? ^ Yes ^ No Notes: McKinstry Signature & Date Signature Date Witness Signature & Date Signature Date ~" Pa e3of5 City of Aspen Colorado g Schedule H: Systems Start-Up and Commissioning Operating Parameters of Installed Equipment FlM 211- Re•Commisslon Yellow Brick Commissioning Plan ""~ As part of Phase I of this FIM a thorough commissioning of the entire system will be pertormed as outlined below. Aker commissioning, trendlogs will be set up to monitor the activity of various equipment and temperatures. The trendlogs will be used to ensure that equipment Is operating according to the updated schedule. As part of the implementation phase (Phase II) a commissioning plan will be developed for any additional measures that are implemented. 1. Review existing systems and related documentation 2. Develop Retro-Commissioning Plan 3. Pertorm calibretion and maintenance checks 4. Implement diagnostic monitoring/ trending 5. Pertorm functional tests 6. Analyze the monitoring/ trending and test data 7. Asses and document the current operating strategies and sequences of operation for all systems and equipment Included 8. Document 0&M improvement opportunities 9. Calculate energy Impacts and develop Implementation cost estimates for 0&M opportunities 10. Develop and deliver the Final Retro~Commissioning Study 11. Include costeffective measures in final proposal with other opportunities identified during the DES. FlM 49.1- Install VFDs on Pool Clrculatbn Pumps Commissioning Plan 1. Verify that equipment startup has been pertormed properly. 2. Review controls programming to ensure sequences have been coded and associated properly. 3. Ensure necessary trending is established and functional. 4. Develop functional performance tests (FPTs) to test control sequences and proper operation of newly installed equipment. 5. Review contractor 0&M manuals to ensure that content clearly Identifies equipment installed, maintenance schedules and warranty procedures. 6. Assemble final commissioning report and deliver to owner. FlM 511-Install Waste Heat Recovery System Commissioning Plan 1. Verify that equipment startup has been pertormed properly. 2. Review controls programming to ensure sequences have been coded and associated properly. 3. Ensure necessary trending is established and functional. 4. Develop functional performance tests (FPTs) to test control sequences and proper operation of newly Installed equipment. 5. Review contractor 0&M manuals to ensure that content clearly identifies equipment Installed, maintenance schedules and warranty procedures. 6. Assemble final commissioning report and deliver to owner. City of Aspen Colorado Page 4 of 5 Schedule H: Systems Start-Up and Commissioning Operating Parameters of Installed Equipment Operatlng Parameters of Instaled Equipment FlM 2.0 -Lighting Upgtadea The lighting upgrades installed under this CONTRACT shall operate as needed to supply Illumination to occupied spaces. FlM 3.0 -Vending Misers The vending misers installed under this CONTRACT shall ensure that the vending machine product stays cold while turning off the vending machine when the surrounding area is vacant. FlM 8.1 end 19.2 -Programmable Thermostats The programmable thermostats Installed under this CONTRACT within the scope of this project shall have the final schedules and tempereture set points programmed to control the heating systems. The district shall not modify the final programmed schedules and set points for any of the thermostats without prior notification to McKinstry. FlM 211- Re~ommissbn Yellow Brick No equipment has been identified to be installed under this FlM. FlM 49.1- Install VFD on Paol Clroulatlon Pumps The VFD units installed under this CONTRACT shall operate as required to maintain a "bright clean pool condition" at the beginning of each occupied period. The units shall not have the VFDs bypassed or overridden nor shall their schedules be changed without prior notification of CONTRACTOR. FlM 5ii -Install Waste Heat Recovery System The water-to-water heat pump unit installed under this CONTRACT shall operete as required to provide heat to the pool heating heat exchangers. In the case that the heat pump cannot provide all the heat that is needed to maintain the pool setpoint the boiler system shall provide the remaining heat. The units shall not be overridden off nor shall their schedules be changed without prior notification of CONTRACTOR. The unit shall not be run in the cooling mode. "~" Pa e 5 of 5 City of Aspen Colorado g Schedule H: Systems Start-Up and Commissioning Operating Parameters of Installed Equipment SCHEDULE I: STANDARDS OF COMFORT The Standards of Comfort for the CITY facilities areas follows: 1. Indoor Temperatures: Occupied Range: 65 ° F - 76 ° F Unoccupied Range: 55°F-85°F All comfort standards only apply to heating and cooling systems that have been altered as part of this project. McKinstry is not responsible for any under sizing of existing units. It is also recommended that the CITY minimize the use of heating and cooling in spaces with temperature set points not explicitly agreed upon as part of this contract. 2. Natatorium Temperature and Humidity: Space Temperature: +2 ° F above the highest pool water setpoint Space Humidity: 50% relative humidity Pool Water Temps: These are flexible and the City may decide to raise or lower them. Higher pool water temps have a significant (negative) effect on energy consumption. McKinstry has the following recommendations for pool water setpoints: Competition/Lap Pool: 78 ° F - 82 ° F ,~, Other Pools: 83 ° F - 86 ° F 3. Illumination Levels: Lighting Redesign: Illumination levels will meet or exceed current recommended practices by the Illuminating Engineer's Society of North America (IESNA) for the various tasks that are conducted throughout the CITY. Lighting Retrofits: Illumination levels will meet or exceed the prn-existing Illumination levels. Otherwise, if lighting levels are reduced, they shall meet or exceed recommended practices by the IESNA. City of Aspen, Colorado Page 1 of 1 Schedule I: Standards of Comfort SCHEDULE 1: CONTRACTOR'S MAINTENANCE RESPONSIBILITIES CONTRACTOR shall provide warrenty services for a one•year period or longer per the manufacturer's warranty on all Installed items. This warranty is specific to defects to original quality and/or workmanship. No maintenance coverage by CONTRACTOR Is Included In this Pertormance Contract. City of Aspen, Colorado Page 1 of 1 Schedule J: Contractor's Maintenance Responsibilities SCHEDULE L: FACILITY MAINTENANCE CHECKLIST The facility maintenance checklists will be provided as a part of the Operation and Maintenance Manuals delivered at project completion. All Facility Maintenance shall be completed in accordance with manufacturer's recommendations and specifications. `~ City of Aspen, Colorado Page 1 of 1 Schedule L: Facility Maintenance Checklist SCHEDULE M: CONTRACTOR'S TRAINING RESPONSIBILITIES Lighting Upgredes: CONTRACTOR shall provide training to key personnel at the CITY on proper equipment operation, and how to make warranty claims on materials. Vending Misers CONTRACTOR shall provide a training session to educate key CITY personnel on how to properly verify that vending misers are installed and working properly and any regular maintenance that they require. Programmable Thermostats CONTRACTOR shall provide a training session on setting the runtime schedules of the programmable thermostats Installed and the importance of maintaining the agreed upon schedules and set points. Re~Commisslon Yellow Brick CONTRACTOR shall provide training on the proper operation of the DDC system with an emphasis on any changes that have been made. CONTRACTOR shall provide treining on the importance of maintaining the agreed upon schedules and set points. VFDs on Pool Clroulatlon Pumps CONTRACTOR shall provide training to key personnel at the CITY on day to day operation and maintenance of the new VFDs including sequences of operation, proper equipment operetion, diagnosing and troubleshooting equipment failures, user Interface, overrides, and preventive maintenance (annual testing). Waste Heat Recovery System CONTRACTOR shall provide treining to key personnel at the CITY on the day to day operation and maintenance of the new heat recovery system including sequences of operation, proper equipment operation, diagnosing and troubleshooting equipment failures, scheduling, user interface, overrides, setpoint changes, and preventive maintenance (annual testing). City of Aspen, Colorado Page 1 of 1 Schedule M: Contractor's Training Responsibilities SCHEDULE N: ,„, .. GENERAL CONDITIONS ww«Y City o~ Aspen General Conditions ""~' For Construction Contracts <Yergion GiC1-971 y.r ,.~„ CITY OF ASPEN, COLORADO GENERAL CONDITIONS FOR CONSTRUCTION CONTRACTS (Version GC-97-2) Article 1-Abbreviations, Definitions, and Provisions of General Applicability l.l. Abbreviatrors ..................................................... ....................................................................... ................................................ 5 1.2. Defmitiom ....................................................................................................................................................... ................................................ 5 Article 2 - Preliminary Matters. 2.1. Delivery of Bonds ........................................................................................................................................... ................................................. 8 2.2. Copies ofDoaunents ..................................................................................................................................... ................................................. 8 2.3. Cortmrencement ofContract Time, Notice to Proceed ................................................................................. .......................................__...... 8 2.4. Starting the Project ......................................................................................................................................... ................................................. 9 2.5. Before Starting the Projea ............................................................................................................................. ................................................. 9 2.6. Pre~omWCtion Conference ....................................................................................................................... ................................................. 9 2.8 Project Prognss Meetings ........................................... ............................................................... ................................................. 9 Article 3 -Contract Documents, Intent, Amending, Ownership, Escrow Bid Documents 3.1. Intent ................................................................................................................................................................. .............................................. 10 3.4. Amending and Supplementing Contract Documents ...................................................................................... .............................................. 10 '^ 3.6. Reece ofDoaments ........._ ..............................._............................................................................................. .............................................. ll 3.7. Precedence ofDocuments ............................................................................................................................................. ............................................. ll Article 4 - Availability of Lands, Physical Conditions, Reference Points. 4.1. Availability of Lands ....................................................................................................................................... ............................................... I1 4.2. Physical Corditiore .......................................................................................................................................... ................................................ I1 4.2.1. Exploration and Reportt .................................................................................................................................... ............................................... 12 4.2.2. Existing Stmcbues ........................................................................................................................................... ............................................... 12 4.2.3. Report of Differing Conditions ........................................................................... ................. ............................................... 12 4.2.4. Engineer's Review ................................................................................................................................... ............................................... 12 4.2.5. Possible Document Change ............................................................................................................................ ............................................... 12 4.2.6. Possible Price and Time Changes ..................................................................................................................... ............................................... 12 4.3. Physical Conditions-Underground Facilities ................................................................................................. .............................................. 12 4.3.1. Shown or lndicated .......................................................................................................................................... ............................................... 12 4.3.2. Not Shown orlndicated ..................................................................................................................................... .............................................. 12 4.4. Land Surveys .@ Reference Portrts ................................................................................................................... .............................................. 12 4.5. Protection of Existing Vegetatron .............................................................................................................................. ............................................... 13 4.6. Havsrdous Materials ....................................................................................................................................... ............................................... 14 4.7. Contractols Representations ........................................................................................................................... .........................:..................... l4 Article 5 - Bonds, Indemnification, Liability, and Insurence 5.1. Perfomrance, Payment, Maintenance and Other Bords .............................................................................................. ............................................... IS 5.2. Indemnificalion ....................................._......................................................................................................_.. ........._......................_........... 15 5.3. Contractols lnsurance ...................................................................................................................................... .............................................. IS 5.4. City's Liability Irsmance .................................................................................................................................. .............................................. 17 Article 6 - CootteMOr's Respoosibilitiea 6.1. General Responsibilities ................................................................................................................................... .............................................. 17 6.2. Supervision and Superintendence .................................................................................................................... .............................................. 17 '~ 6.3. Later, Materials, and Equipment ............................................................... ............................. .............................................. IS .„r 6.4:6.7 Reserved ......................................................................................................................................... .................................... 18 6.8 Sub-mntractors, Suppliers and Odters ........................................................................ ................................................................................... l9 . 6.9 Sub-contracting .............................................................................................. ...................................................................... 20 6.10 Paten[Fees, ROyalfies,Permits .................._................................................................ .._......................._........ _. _........................ 20 6.11 Pemtits ........................................................................................................... .................................................................... 20 6.12 Laws and Regula[iots ..................................................................................... ......................................................................... 20 6.13 Taxes ........................................................................................................... ....................................................................... 21 6.14 Use of Premises .................................................................................................. .................................................................... 21 6.15 Record Doaurtents ........................................................................................... ...................................................................... 2l 6.16 Safety and Protection ............................................................................................ .....................................................................21 6.17 Emergencies ....................................................................................................... .................................................................. 22 6.18 Shop Drawings and Samples .................................................................................. ..................................................................... 22 6.19 Claim Release, Mechanics' Lien .................................................................................. ................................................................. 23 6.20 Continuing the Work ............................................................................................. ................................................................... 24 6.21 Contractor's FacilHies ............................................................................................. ................................................................... 24 Article 7 -Other Work. 7.1. Related Work at Site 7.2. Coordination Article 8 -City's Responsibilities. 24 24 8.0. ................................................................................................................................................................ 25 Artlde 9 -Engineer's Status During Conshvcdon. 9.1. City's Representative .............................. ................................................ ................................. 25 9.2. Visits to Site .................................................................................................................................................................. ................................. 25 9.3. Project Representation ................................................................................................................................................. ................................. 25 9.4. Clarification and Iruerpretation .................................................................................................................................... ................................. 26 9.5. Authorized Variatiore in Work .................................................................................................................................... ................................. 26 9.6. Rejecting of Defective Work .......................... ....................................... ................................. 26 9.7 Shop Drawings, Change Orders and Payments ............................................................................................................. ................................. 26 9.8 Decisions on Disputes ....................................................................................................................................... ......................... 26 9.9 Arbitration ..................................................................................................................................................... ........................ 27 9.I0 Limitations on The Engktttr's Resportsibilities ............................................................................................................ ........................ 27 Arficle ]0 - Changes in the Work. I0.1. City (nitrated Changes ........................................................................................................................................................ ................................. 27 10.2. Wotk Directive Change ................................................... ............................................................. ................................. 27 10.3. Change Order ...................................................................................................................................................................... ................................. 28 10.4. Contactor Change Request ............................................................................................................................................... ................................. 28 I0.5. Down Time 10.6. Submittal Requirements and Waiver ofClaims ............................................................................................................... ................................. 29 Article 1l - Changes of Contract Price. I l.l. Contract Price Adjustrrrents ................................................................................................................................................ ................................. 29 11.2. Contract Time Adjustrnents ........................:....................................................................................................................... ................................. 29 11.3. Force Aceount Work ........................................................................................................................................................... ................................. 30 l 1.4. Contract Sum Determination .............................. ................................................................ ................................. 30 11.5. Cos[ and Pricing Data ........................................................................................................................................................... ................................. 32 11.6. Variation in Quantity of Unit Priced Items ....................................................................................................................... ................................. 32 Artcle 12 -Reserved. Artlde 13 -Warranty sod Guarantee (Mainteosnce Bond); Tests and Iospeclim; Correcfion, Removal or Acceptentt of Defecfive Work. 13.1. Wananty ............................................................................................................................................................................ ................................. 33 13.2. Access to Wodc ................................................................................................................................................................... ... 34 13.3. Tests and Irepectiore .......................................................................................................................................................... ................................. 34 13.4. Uncovering Wodc ................................................................................................................................................................ ................................. 35 13.5. City May Stop the Work ..................................................................................................................................................... ................................. 35 13.11. Correction or Removal of Defective Work ........................................................................................................................ ................................. 35 w=- 13.7. Couceton Period ................................................................................................................................................................ ................................. 35 13.8. Acceptance of Defective Work ............................................................................................................................................. ................................. 35 13.9. City May Conect Defective Work ............................................................................................................. ......................................................... 36 13.10. Unauthorized Work ....................................... ................................................... ......................................................... 36 Article 14 -Payments to Contractor and Completion. 14.1. Determination of Work Value .................................................................................................................... ........................................................ 36 14.2. Application for Progress Payment ............................................................................................................... ........................................................ 36 14.3. Contractor's Warranty ofTide .................................................................................................................... ........................................................ 37 14.4. Engmcer's Review of Progress Payments .................................................................................................. ........................................................ 37 14.5. Substantial Completion .............................................................................................................................. ........................................................ 38 14.6. Partial Utilvetion ......................................................................................................................................... ........................................................ 38 14.7. Final lnspection ........................................................................................................................................... ........................................................ 39 14.8. Final Progress Payment ................................................................................................................................ ........................................................ 39 14.9. Settlement Date, Notice to Subcontractors, Acceptance and Final Payment ..................................................._..... ........................................................ 39 14.10. Contractors Continuing Obligtrion ........................................................................................................... ........................................................ 39 14.11. Time for Completion and Liquidated Damages ................................................. . ....................................................... 40 Article IS -Suspension of Work and Termination. 15.1. City May Suspend Work ................................................................................................................................................................................... 41 15.2. City May Tenninatc ............................................................................................................................................................................................ 41 I5.5. Contractor May Stop Work or Terminate .......................................................................................................................................................... 42 Article 16 -Miscellaneous. 16.I. Nordiscrimination ............................................................................................................................................. ................................................ 42 16.2. Giving Notice ................................... ........................................................................... ................................................ 43 16.3. ComputationofTime .......................................................................................................................................... ................................................ 43 16.4. General ................................................................................................................................................................ ................................................ 43 16.5. Independent Contractor Status ................... ................................................................. ................................................ 43 16.6. Prohibited Interest ............................................................................................................................................. ................................................ 43 16.7. Warranties Against ContingentFees, Gratuities, Kickbacks and Conflict oflnterest .................................................... ................................................ 44 16.8. Paymen6 Subject to Annual Appropriatiom .................................. ................... ................................................ 44 16.9. Contractor Acceptance ...................................................................................................................................... ................................................ 44 16.10. Successors and Assigns ...................................................................................................................................... ................................................ 45 16.11. Third Parties ...................................................................................................................................................... ................................................ 45 16.12. Waiver ................................................................................................................................................................ ................................................ 45 16.13. Agreement Made N Colorado ............................................................................................................................... ................................................ 45 16.14. Attorneys' Fees .................................................................................................................................................... ................................................ 45 16.15. Waiver ofPresumption ..................................................................................................................................... ................................................ 45 16.16. Severability Clmue ............................................................................................................................................. ................................................ 45 16.17. Audit and Records ............................................................................................................................................. ................................................ 45 16.18. Audi[ .................................................................................................................................................................... ................................................ 46 ~~ INTRODUCTION w The Contract Documents are complementary, and what is required by any one shall be as binding as if required by all, unless certain services or equipment are specifically excluded. These General Conditions have been prepared to be incorporated by reference into the Contract entered into between the City and the Contractor. Tn the event of conflict or inconsistency among the Contract Documents, the order of precedence set forth in the Contract for Construction shall govern the interpretation of the Contract between the City of Aspen and the Contractor. Words and abbreviations which have well-known technical or trade meanings are used in the Contract Documents in accordance with their recognized meanings, provided however that those terms required to be defined in the Proposal by the Contractor shall have the meaning given to them in the Proposal to the extent that they are not in conflict with any other part or term of the Contract Documents. ARTICLEI-DEFINITIONS 1.1. Whenever the words, forms, or phrases defined herein, or pronouns used in their place occur in the Contract Documents, the intent and meaning shall be interpreted as follows: ASCE American Society of Civil Engineers NACE National Society for Corrosion Engineers SSPC Special Society for Paint Council AASHTO American Association of State Highway and Transportation Officials AIA American Insurance Association SICS American Institute of Steel Construction AISI American Iron and Steel Institute ANSI American National Standards Institute (formerly ASA and USASI) ASME American Society of Mechanical Engineers ASTM American Society for Testing and Materials AWG American Wire Gauge AWS American Welding Society BAFO Best and Final Offer CDOT Deparhnent of Transportation, State of Colorado O&M Operations and Maintenance DHA Detailed Hazards Analysis EBD Escrow Bid Documents EIA Electronic Industries Association EPA United States Environmental Protection Agemcy FCC Federal Communications Commission FHWA Fedem Highway Administration FTA Federal Transit Administration HVAC Heating, Ventilation, and Air Conditioning NBS National Bureau of Standards NEC National Electric Code NTP Notice to Proceed NESC National Electric Safety Code NFPA National Fve Protection Association OSHA Occupational Safety and Health Administration PHA Preliminary Hazards Analysis SAE Society of Automotive Engineers UL Underwriter's Laborntories, Inc. UMTA United States Department of Transportation, Urban Mass Transportation Authority UD&FCD Urban Drainage and Flood Control District MUTCD Manual on Uniform Traffic Control Devices 1.2. Wherever used in these General Conditions or in the other Contract Documents the following terms have the meanings indicated which are applicable to both the singulaz and plural thereof. Addenda -Written or graphic instnunents issued prior to the opening of Bids which clarify, correct or change the bidding documents, Contract Documents, drawings, details or specifications. Bid -The offer or proposal of the bidder submitted on the prescribed form(s) setting forth the prices for the Work to be performed. Bidder -Any qualified responsible and responsive fnm or corporation submitting a Bid for the Work. Bid Package -All information and standard Contract Documents prepared by the City to assist potential bidders to prepaze their bids. Bonds - Bid, performance, payment, maintenance bonds and other acceptable instmments of financial security, furnished by the Contractor and his/her surety in accordance with the Contract Documents. Change Order - A written order to the Contractor authorizing an addition, deletion or revision in the Work within the general scope of the Contract Documents, or authorizing an adjustment in the Contact Price or Contract Time, issued on or after the Effective Date of the Contract for Construction. City or Owner -The City of Aspen in Pitkin County, Colorado. Contract -All contract documents attached to the Contract for Construction and made a part thereof as provided herein. Contract Documents -The Contact including Invitation to Bid, Instructions to Bidders, Bid Proposal, Addenda, General Conditions, Special Conditions, Contract for Constmction, Bid Bond, Notice of Awazd, Payment, Performance, and Maintenance Bonds, Drawings identified in the Contract Documents or attached as part of the Bid, and Specifications identified in the invitation to Bid or attached as part of the Bid, Affidavit of Compliance form, Liquidated Damages form, Contractor's License form, Daily Construction Log form, Progress Pay Estimate fore, and Insurance Certificates. Contract for Construction -The written agreement between City and Contractor covering the Work to be performed. Contractor -The qualified responsible and responsive fmn or corporation with whom the City has entered into the Contract for Construction. Contract Price -The moneys payable by the City to the Contractor under the Contract Dceumrnts as stated in the Contract for Construction (subject to the provisions of paragraph 11.4.), except for the Minor Contract Revisions item(s) which are subject to the City's written authorization for expenditure. Contract Time -The number of the wnsecutive calendaz days or the working days and/or the deadline set in the Contract Documents for the completion of the Work. Daily Construction Log -The form furnished by the City Engineering Department, used by the City Project Inspector to record the Contractor's daily work quantities and project events. Daily constmction log is the only verified justification for payment to the Contractor. Defective - An adjective which when modifying the word Work refers to Work that is unsatisfactory, faulty or deficient, or does not conform to the Contract Documents, or does not meet the requirements of any inspection, reference standazd, test or approval refered to in the Contract Documents, or has been damaged prior to the Engineer's rewmmendafion of ~ fmal payment (unless responsibility for the protection thereof has been assumed by the City at Substantial Completion in accordance with paragraph 14.5 or 14.6). °" Drawings -The part of the Contract Documents which show the character and scope of the Work to be performed and r... which have been prepazed or approved by the Engineer. Effective Date of the Contract for Construction - The date indicated in the Ageement on which it becomes effective, but if no such date is indicated it means the date on which the Agreement is signed and delivered by the last of the two parties to sign and deliver. Engineer -The person, fum, corporation or the City Engineer, named as such in the Contract Documents. Field Order - A written order affecting a change in the Work not involving an adjustment in the Contract Time, issued by the Engineer to the Contractor during construction. Ha~rdous Materials -The term "Hazardous Materials" shall have the meaning set forth at 42 U.S.C. ' 9601(14) and regulations promulgated pursuant thereto. Laws and Regulations; Laws or Regulations -Laws, rules regulations, ordinances, procurement code and/or orders. Notice of Award -The written notice by the City to the apparent successfil bidder stating that upon compliance by the apparent successful bidder with the conditions precedent enumerated therein, within the time specified, the City will sign and deliver the Contract . Notice to Proceed - A written notice given by the City to the Contactor fixing the date on which the Contract Time will commence to run and on which Contactor shall start to perform Contractor's obligations under the Contract Documents. Partial Utilization - Placing a portion of the Work in service for the purpose for which it is intended (or a related purpose) before reaching Substantial Completion for all the Work. Procurement Code - Title 4 of the City of Aspen Municipal Code. Progress Pay Estimate -The form furnished by the City Engineering Department, which is to be used to record, approve, and process payment when the Contractor requests progress or final payments and which is to include such supporting documentation as is required by the Contract Documents. Project -The total construction of which the Work to be provided under the Contract Documents may be the whole, or a part as indicated elsewhere in the Contract Documents. Project Inspector -The authorized Civil Engineer or Civil Engineering Technician, designated by the City Engineer to observe construction, materials placement and testing and to prepare the Daily Construction Logs and field reports. Punch List - A form or letter that lists all incomplete or deficient Bid items, and is prepared upon substantial completion of the Work by the City Project Inspector. Shop Drawings -All dawings, diagrams, illustrations, brochures, schedules and other data which are specifically prepared by or for the Contractor and the sub-contractor to illustrate some portion of the Work and all illustrations, brochures, standard schedules, performance charts, instructions, diagrams and other information prepared by a Supplier and submitted by the Contactor and the Sub-contractor to illustrate material or equipment for some portion of the Work. Specifications -Those portions of the Contract Documents consisting of written technical descriptions of materials, equipment, construction systems, standards and workmanship as applied to the Work and certain administrative details applicable thereto. Subcontractor - A firm or corpoation having a direct contact with the Contractor or with any other Sub-contractor for the performance of a part of the Work at the site. Substantial Completion -The Work (or a specified part thereof) has progressed to the point where, in the opinion of the Engineer as evidenced by the Engineer's acceptance, is sufficiently complete, in accordance with the Contract Documents, so that the Work can be utilized for the purposes for which it is intended. The terms "substantially complete" and "substantially completed" as applied to any Work refer to Substantial Completion thereof. The term Substantial Completion shall mean one hundred percent (100%) completion of the Work. . Special Conditions or Special Provisions -The part of the Contract Documents which amends or supplements these General Conditions. Supplier - A manufacturer, fabricator, supplier, distributor, materiahnan or vendor who supplies materials or equipment for the Work including that fabricated to a special design but who does not perform labor at the site. Underground Facilities -All pipelines, conduits, ducts, cables, woes, manholes, vaults, tanks, tunnels or other such facilities or attachments, and any encasements containing such facilities which have been installed underground to furnish any of the following services for materials; electricity, gases, steam, liquid petroleum products, telephone or other communications, cable television, water, wastewater and surface runoff removal, traffic or other control systems. Unit Price Work -Work to be paid for on the basis of unit prices. Work -The entire completed construction or the various separately identifiable parts thereof required to be famished under the Contract Documents. Work is the result of performing services, famishing labor and furnishing and incorporating materials and equipment into the construction, all as required by the Contract Documents and those not specifically mentioned but necessary for successful completion of the Bid items. Written Notice or Written Notice of Amendment - A written amendment of the Contrail Documents, signed by the City and the Contractor on or after the Effective Date of the Contract for Construction and normally dealing with the non- engineering ornon-technical rather than strictly Work-related aspects of the Contract Documents ,,~ ARTICLE 2 -PRELIMINARY MATTERS 2.1 Delivery ojBonds: When Contractor delivers the executed Contracts to the Engineering Departrnent, the Contractor shall also deliver such Bonds as the Contractor is be required to famish in accordance with paragraph 5.1. 2.2 CopiesafDocuments: The City shall famish to the Contractor up to three copies (unless otherwise specified in the Special Conditions) of the Contract Documents as are reasonably necessary for the execution of the Work. Additional copies will be furnished, upon request, at the cost of reproduction. 2.3 Commencement of Contract TYme, Notice to Proceed: Prior to the City issuing a Notice to Proceed, either the City Manager or the Mayor of the City of Aspen shall approve the Contract Documents and shall execute the same. Notwithstanding any representations to the contrary made by City's employees, either directly, indirectly, or by implication, no Contract shall be in effect nor shall be binding upon the City until such time as the Contract is executed by the City pursuant to authority granted in accordance with Section 4-08-040 of the Procurement Code. The City shall issue a Notice to Proceed after either (a) the City Manager has executed the Contract, or (b) The City Council has authorized the execution of the Contract, and the Contractor has executed the Contract and other Contract Documents, and has delivered the specked bonds, Certificates of Insurance, as are required, and any other documents required to be delivered by the Special Conditions and Addenda(s) if any issued. The Contract Time will commence to run on the day indicated in the Notice to Proceed. .•+~, x.. 2.4 Starting the Project: The Contractor shall start to perform the Work on the date when the Contract Time commences to run, but no Work shall be done at the site prior to the date on which the Contract Time commences to run and prior to a mandatory pre- construction conference conducted by the City. 1.5 Before Starturg the ProjeM: Before undertaking each part of the Work, the Contractor shall carefully study and compare the Contract Documents and check and verify pertinent figures shown thereon and all applicable field measurements. The Contractor shall promptly report in writing to the Engineer any conflict, error or discrepancy which Contractor may discover and shall obtain a written interpretation or clarification from the Engineer before proceeding with any Work affected thereby. 2.5.1. Within Three Davs after the Effective Date of the Contract (unless otherwise specified in the Special Conditions or General Requirements), the Contractor shall submit to the Engineer for review: 2.5.1.1. An estimated progress schedule indicating the starting and completion dates of the various stages of the Work; 2.5.1.2. A preliminary schedule of Shop Drawing submissions; and 2.5.1.3. Quality Control and Quality Assurance (QA/QC) plan and policy to identify the specific steps the Contractor will take to ensure the highest quality in the constructed Bid items. 2.5.1.4. A Work Zone Safety Implementation & Enforcement Plan with specific action ..._ process. 2.5.2. Before any Work at the site is started, the Contractor shall deliver to the City and the Engineer, copies of certificates (and other evidence of insurance requested by the City) which the Contractor is required to purchase and maintain. 2.6 Pre-construdton Conference: Within Seven (7) Consecutive Calendar Days after the Effective Date of the Bid Awazd, and before the Contractor starts the Work at the site, he/she and all of his/her sub-contractors and suppliers shall attend a mandatory pre-construction conference, conducted by the Engineer and others as appropriate to discuss coordination of construction actvifies, procedures for handling Shop Drawings and other issues, and to establish a working understanding among the parties as to the Work. 2.7 Project Progress Meetings The City and the Contractor shall meet once a week to review the construction activities, rate of progress, and other project related issues to ensure efficient and smooth progress of work. w. ARTICLE 3 -CONTRACT DOCUMENTS: INTENT, AMENDING, REUSE 3.1 /ntent: The Contract Documents comprise the entire agreement between the City and the Contractor concerning the Work. The Contract Documents are complementary; what is called for by one is as binding as if called for by all. The Contmct Documents will be construed in accordance with the law of the State of Colorado. 3.1.1. It is the intent of the Contract Documents to describe a functionally complete Project (or part thereof) to be constructed in accordance with the Contract Documents. Any Work, materials or equipment that may reasonably be inferred from the Contract Documents as being requred to produce the intended result will be supplied whether or not specifically called for. When words which have awell-known technical or trade meaning are used to describe Work, materials or equipment, such words shall be interpreted in accordance with that meaning. Reference to standard specifications, manuals or codes of any technical society, organization or association, or to the Laws or Regulations of any governmental authority, whether such reference be specific or by implication, shall mean the latest standazd specification, manual, code or Laws or Regulafions in effect at the time of opening of Bids (or, on the Effective Date of the Contract if there were no Bids) except as may be otherwise specifically stated. However, no provision of any referenced standard specification, manual or code (whether or not specifically incorporated by reference m the Contract Documents) shall be effective to change the duties and responsibilities of the City, the Contractor or the Engineer, or any of their consultants, agents or employees from those set forth in the Contract Documents, nor shall it be effective to assign to the Engineer, or any of the Engineer's consultants, agents or employees, any duty or authority to supervise or direct the famishing or performance of the Work, or any duty or authority to undertake responsibility contrary to the provisions of Article 9. Clarifications and interpretations of the Contract Documents shall be issued by the Engineer as provided in section 9.4. 3.1.2. If, during the performance of the Work, Contractor fords a conflict, error or discrepancy in the Contract Documents, the Contractor shall so report to the engineer and the City m writing at once and before proceeding with the Work affected thereby and shall obtain a written interpretation or clarification from the Engineer. 3.2 Amending and Supplementing Contract Documents: The contract Documents may be amended to provide for additions, deletions and revisions in the Work or to modify the terms and conditions thereof in one or more of the following ways: 3.2.1. A formal Amendment of the Contract for Construction; 3.22 A Change Order pursuant to paragraph I0.3. As indicated in Article 11 Contract Price and Contract Time may only be changed by a Change Order or a Written Nofice of Amendment. 3.2.3. th addition, the requirements of the Contract Documents may be supplemented, and minor variations and deviations in the Work may be authorized, in one or more of the following ways: 3.2.3.1. A Field Order (pursuant to paragraph 9.5); 3.2.3.2. The Engineer's approval of a Shop Drawing or sample (pursuant to paragraphs 6.18.5 and 6.18.6); or, 3.2.3.3. The Engincer's written interpretation or clarification (pursuant to paragraph 9.4). 3.3 Reuse of Documents: Neither the Contractor nor any Subconhactor or Supplier or other person or organization performing or famishing any of the Work under a direct or induect contract with the City shall have or acquire any title to or ownership rights in any of the design details, drawings or specifications. 3.4 Precedence ojConhact Documents: The Contract governs over the Contract Documents. A Change Order governs over all other Contract Documents impacted by change. The Special Conditions govern over the General Conditions. ARTICLE 4 -AVAILABILITY OF LANDS: PHYSICAL CONDITIONS: REFERENCE POINTS 4.1 Awti/abiiityojlands: The City shall famish, as indicated in the Contract Documents, the lands upon which the Work is to be performed, rights- of-way and easements for access thereto. The Contractor shall have full responsibility with respect to any conditions or provisions contained in applicable easements relating to the lands upon which the Work is to be performed. 4.2 Physical Conditions: 4.2.1. EXPLORATIONS AND REPORTS: Reference is made to the Special Conditions for identification of those reports of explorations and tests of subsurface conditions at the site that have been utilized by the Engineer in preparation of the Contract Documents. The Contractor may reasonably rely upon the accuracy of the technical data contained in such reports, but not upon non-technical data, interpretations or opinions contained therein or for the completeness thereof for the Contractors purposes. Except as indicated in the immediately preceding sentence and in paragraph 4.2.6. the Contractor shall have full responsibility with respect to subsurface conditions at the site. Contractor shall not, by vhYUe of this paragraph, be relieved from exercising ordinary skill and competence with respect to reliance upon the accuracy of the technical data contained in such reports. 4.2.2. EXISTING STRUCTURES: Reference is made to the Special Conditions for identification of those drawings . , of physical conditions in or relating to existing surface and subsurface structures (except Underground Facilities referred to in paragraph 4.3) which are at or contiguous to the site that have been utilized by the Engineer in preparation of the Contract Documents. The Contractor may reasonably rely upon the accuracy of the technical data contained in such drawings, but not for the completeness thereof for the Contractors purposes. Except as indicated in the immediately preceding sentence and in paragraph 4.2.6. the Contractor shall have full responsibility with respect to physical conditions in or relating to such structures. The Contractor shall not, by virtue of this paragraph, be relieved from exercising ordinary skill and competence with respect to reliance upon the accuracy of the technical data contained in such drawings. 4.2.3. REPORT OF DIFFERING CONDITIONS: If the Contractor believes that: 4.2.3.1. Any technical data on which the Contractor is entitled to rely as provided th paragraphs 4.2.1 and 4.2.2 is inaccurate; or 4.2.3.2. Any physical condition uncovered or revealed at the site differs materially from that indicated, reflected or referred to m the Contract Documents, Then, the Contractor shall promptly, after becoming aware thereof and before performing any Work in connection therewith (except in an emergency as permitted by paragraph 6.22) notify the City and the Engineer in writing about the inaccuracy or difference. 4.2.4. ENGINEER'S REVIEW: The Engineer will promptly review the pertinent conditions, determine the necessity of obtaining additional explorations or tests with respect thereto and advise the City in writing (with a copy to the Contractor) of the Engineers fmdings and conclusions. 4.2.5. POSSIBLE DOCUMENT CHANGE: If the Engineer concludes that there is a material error in the Contract `'~' Documents or that because of newly discovered conditions a change in the Contract Documents is required, a Change Order will be issued as provided in Article 10 to reflect and document the wnsequences of the inaccuracy or difference. 4.2.6. POSSIBLE PRICE AND TIME ADJUSTMENTS: In each such case, an increase or decrease in the Contract Price or an extension or shortening of the Contract Time, or any combination thereof, will be allowable to the extent that they are attributable to any such inaccuracy or difference as described in Section 4.2.3. The Contractor shall meet and obtain approval from the City Engineer or hisiher designee prior to implementing any such change in the Work. 4.3 Physical Conditions -Underground Facilities: 4.3.1. SHOWN OR INDICATED: The informazion and data shown or indicated in the Contract Documents with respect to existing Underground Facilities at or contiguous to the site is based on information and data famished to the City or the Engineer by the owners of such Underground Facilities or by others. Unless it is otherwise expressly provided in the Special Conditions: 4.3.1.1. The City and the Engineer shall not be responsible for the accuracy or completeness of any such information or data; and, 4.3.1.2. The Contractor shall have full responsibility for determining the existence of all Underground Facilities, for reviewing and checking and potholing for all such information and data, for locating all Underground Facilities shown or indicated in the Contract Documents, for coordination of the Work with the owners of such Underground Facilities during consWction, for the safety and protection thereof as provided in paragmph 6.20 and for repairing any damage thereto resulting from the Work, the cost of all of which will be considered as having been included in the Contract Price. 4.3.2. NOT SHOWN OR INDICATED: If an Underground Facility is uncovered or revealed at or contiguous to the site which was not shown or indicated in the Contract Documents and which Contractor could not reasonably have been expected to be awaze of, Contractor shall, promptly after becoming aware thereof and before performing any Work affected thereby (except in an emergency as permitted by paragraph 6.17.1), identify the owner of such Underground ~ Facility and give written notice thereof to that owner and to the City and the Engineer The Engineer will promptly ,,,,r review the Underground Facility to determine the extent to which the Contract Documents should be modified to reflect and document the consequences of the existence of the Underground Facility, and the Contract Documents will be amended or supplemented to the extent necessary. During such time, Contractor shall be responsible for the safety and protection of such Underground Facility as provided in paragraph 6.16.1. The Contractor shall be allowed an increase in the Contact Price or an extension of the Contract Time, or both, to the extent that they are attributable to the existence of any Underground Facility that was not shown or indicated in the Contract Documents and of which the Contractor could not reasonably have been expected to be aware of such Underground Facility and subject to acceptance and approval by the Engineer. 4.4 Reference Paints: 4.4. The City shall provide engineering surveys to establish reference points For construction which in the Engineer's judgment are necessary to enable Contractor to proceed with the Work. Contractor shall be responsible for laying out the Work (unless otherwise specified in the General Requirements), shall protect and preserve the established reference points and shall make no changes or re-locations without the prior written approval of the City. The Contractor shall report to the Engineer whenever any reference point is lost or destroyed or requires relocation because of necessary changes in grades or locations, and shall be responsible for the accurate replacement or relocation of such reference points by a Registered Professional Land Surveyor Licensed in the State of Colorado. 4.5 ProteMlon and Restoration ojProperty and Landscape: 4.5.1. The Contractor shall be responsible for the preservation of all pubhc and privaze property and shall protect carefully from disturbance or damage all land and property and shall protect carefully from disturbance or damage all land and monuments and property marks until the the Engineer has witnessed or otherwise referenced then location and shall not remove them until directed. 4.5.2. The Contractor shall be responsible for all damage or injury to property of any character, during the prosceufion of the Work, resulting from any act, omission, neglect, or misconduct in his manner or method of executing the Work, or at any time due to defective Work or materials, and said responsibility shall not be released until the project shall have been completed and accepted. 4.5.3. When or where any direct or indirect damage or injury is done to public or private property by or on account of any act, omission, neglect, or misconduct by the Contractor in the execution of the Work, or in consequence of the non- execution thereof by the Contractor, he shall restore, at his own expense, such properly to a condition similar or equal to that existing before such damage or injury was done, by repairing, rebuilding, or otherwise restoring as may be directed, or he shall make good such damage or injury in an acceptable manner. 4.5.4. State Highway 82 and the streets within the corporate limits of the City of Aspen aze viewed by the City as a community asset which enhances the tourism industry. The City, therefore, desires to save all vegetation and other environmental features except for those which have been specifically identified for removal in the Contrail Documents. 4.5.5. Materials storage, equipment parking, vehicle parking and stockpiling excavated materials shall be allowed only in those areas designated by the Engineer. 4.5.6. Specific areas of vegetation and other environmental features to be protected shall be staked, fenced, or otherwise marked in the field by the Engineer. However, the fact that areas of vegetation and other environmental features are not mazked shall not necessarily mean that those items are expendable. The Contrnctor shall perform all his activities in such a manner that the least environmental damage shall result. Any questionable areas or items shall be brought to the attention of the Engineer for approval prior to removal or any damage activity. Damage or destruction of unmarked trees or shrubs which could reasonably have been saved shall therefore be subject to the provisions these General Conditions. 4.5.2 If the fence, staking or marking is knocked down or destroyed by the Contractor, the Architect shall suspend the Work in whole or in part, until the fence or other protection is repaired to the Engineer's satisfaction at the Contractor's ,,,w„ expense. Time lost due to such suspension shall not be considered a basis for adjustment of Contrail Time or for compensation to the Contractor. 4.5.8. If the Contractor disturbs any of the landscape not called for removal, he/she shall restore those areas as directed at the Contractor's expense. 4.5.9. The City may require that the Contractor replant an area that is damaged. The Work shall be done as directed by the Engineer. If the Contractor is deemed to be responsible, then the replanting shall be done by the Contrnctor at his/her expense. If the City is responsible, the costs will be reimbursed on a minor contract revisions (MCR) basis unless existing cost proposal covers the Work. 4.5.10. With respect to replacement of trees and shrubs that have been damaged or destroyed, the following conditions shall apply: 4.5.10.1. Trees or shmbs of replaceable size shall be replaced by the Contractor at his/her expense. If he/she fails to do so within a reasonable length of time as determined by the Engineer and prior to the end of the contract time, the replacement value of the trees or shrubs will be deducted from any money due to the Contractor. These values shall be based upon averages derived from curent prices of nurseries growing the plants, plus the cost for planting and a guarantee for the fast growing season. 4.5.10.2. When trees or shrubs beyond replaceable size have been damaged or destroyed, the value of such trees or shrubs shall be calculated as per square yard of surface area measured at the Bound level. 4.5.10.3. Any deduction assessed as liquidated damages under this section shall not relieve the Contractor from liability for any damages or costs resulting from delays to the City, traveling public or other contractors. ~.Y.. 4.6 Hazardous Materials 4.6.1. Prior to commencement of any Work and as a condition precedent to payment by the City of any costs for it, the Contractor shall at no additional cost to the City wnduct tests the Contractor deems necessary to determine the existence of Hazardous Materials by appropriately licensed Subcontractors or entities. The City shall reimburse the Contractor for the invoice costs of the tests, only in the event that the Contractor furnishes the City with certified test data and results which confirm the existence of Hazardous Materials. 4.6.2. If Hazadous Materials are discovered on or under real property which is owned by the City before the date of Substantial Completion and Acceptance in accordance with Article 14 herein, which property is within the Project right- of-way, the City shall, upon the request of the Contrnctor, and at the City's sole cost and expense, cause any such Hazardous Materials to be encapsulated, treated or removed from such real property and transported for final disposal in accordance with all Laws and Regulations, and shall cause such real property to be restored to its condition existing prior to such removal (except for the absence of Hazardous Materials), including, to the extent required, any grading and reinforcement necessary to restore the weight-bearing capacity of such real property prior to such event. The City shall remove the Hazardous Materials and restore the real property in such a manner as not to interfere with the Contractor's construction or operation of the Project. 4.6.3. IF Hazardous Materials are present on or under the Project right-of--way as a result of any dischazge, dumping or spilling on the Project right-of--way during the term of the Contract by any party, including the Contractor, other than an agency of the executive branch of State or Federal Government, the Contractor shall at the Contrnctor's sole cost and expense, cause any such Hazardous Materials to be encapsulated, treated or removed from the Project right-of--way and transported for final disposal in accordance with all applicable Laws and Regulations, and shall cause the Project right-of- way to be restored to its condition existing prior to such removal (except for the absence of the Hazardous Materials), including to the extent required, any grading and reinforcement necessary to restore the weight-bearing capacity of the Project right-of--way prior to such event. 4.6.4. The City shall not be responsible for the cost of and the removal or clean-up of Hazadous Materials found in any materials brought to the Project Site, after the Project Site is fumed over to the Contractor. 4.6.5. The Contractor shall provide the Engineer with a written certification each time materials or equipment is brought onto the Work site that such materials or equipment do not contain Hazardous Materials. 4.6.6. The Contractor and the City shall woperate with each other in the prosecution of any claim against or defense of any claims made by third parties in connecfion with Hazardous Materials present on the Project right-of--way or contiguous properties owed or controlled by the City. 4.7 Contractor Representations By executing the Contract, the Contractor represents that he/she has visited the site, familiarized him/herself with the local conditions under which the Work is to be performed (including weather conditions which can be expected), and correlated his observations with the requirements of the Contact Documents. ARTICLE 5 -BONDS, INDEMNIFICATION AND INSURANCE S.1 Performance, Payment, and Maintenance Bonds: •"'+R 5.1.1. Contractor shall famish performance, payment, and maintenance Bonds, each in an amount specified in the Special Conditions as security for the faithful performance and payment of all the Contractor's obligations under the Contract Documents. These Bonds shall remain in effect until the job is advertised and closed except for the Maintenance Bond which shall remain in full force and effect for Two Yews from the date of project closure, except as otherwise provided by the Contract Documents. The Contractor shall also famish such other Bonds as are required by the Special Conditions. All Bonds shall be in the forms prescribed by Law or Regulation or by the Contmct Documents and be executed by such sureties as are named in the current list of "Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies" as published in Circular 570 (amended) w.. by the Audit Staff Bureau of Accounts, U.S. Treasury Departrnent. All Bonds signed by an agent must be accompanied by a certified copy of the authority to act. 5.1.2. If the surety on any Bond famished by Contractor is declazed a bankrupt or becomes insolvent or its right to do business is terminated in any state or it ceases to meet the requirements of paragraph 5.1, Contractor shall within five days thereafter substitute another Bond and Surety, both of which must be acceptable to the City. 5.1 /ndemn~ca8on: The Contractor agrees to indemnify and hold harmless the City, its officers, employees, insurers, and self-insurance pool, from and against all liability, claims, and demands, on account of injury, loss, or damage, including without limitation claims arising from bodily injury, personal injury, sickness, disease, death, property loss or damage, or any other loss of any kind whatsoever, which arise out of or are in any manner connected with this contract, to the extent that such injury, loss, or damage is caused in whole or in part by, or is claimed to be caused in whole or in part by, the act, omission, error, professional error, mistake, negligence, or other fault of the Contractoy any subcontractor of the Contractor, or any officer, employee, representative, or agent of the Contractor or of any subcontractor of the Contractor, or which arises out of any worlarren's compensation claim of any employee of the Contractor or of any employee of any subwntractor of the Contractor. The Contractor agrees to investigate, handle, respond to, and provide defense for and defend against, any such liability, claims or demands at the sole expense of the Contractor, or at the opfion of the City, agrees to pay the City or reimburse the City for the defense costs incurred by the City in connection with, any such liability, claims, or demands. The Contractor also agrees to bear all other costs and expenses related thereto, including court costs and attorney fees, whether or not any such liability, claims, or demands alleged are groundless, false, or fraudulent. If it is determined by the final judgment of a court of competent jurisdiction that such injury, loss, or damage was caused in whale or in part by the act, omission, or other fault of the City, its officers, or its employees, the City shall reimburse the Contractor for the portion of the judgment attributable to such act, omission, or other fault of the City, its officers, or employees. ~, 5.3 Condactor's /nsurance: 5.3.1. The Contractor agrees to procure and maintain, at its own expense, a policy or policies of insurance sufficient to insure against all liability, claims, demands, and other obligations assumed by the Contractor pursuant to Section 5.2 above. Such insurance shall be in addition to any other insurance requirements imposed by this contract or by law. The Contractor shall not be relieved of any liability, claims, demands, or other obligations assumed pursuant to Section 5.2 above by reason of its failure to procure or maintain insurance, or by reason of its failure to procure or maintain insurance in sufficient amounts, duration, or types. 5.3.2. Contractor shall procure and maintain, and shall cause any subcontractor of the Contractor to procure and maintain, the minimum insurance coverages listed in the Supplemental Conditions. If the Supplemental Conditions do not set forth minimum insurance coverage, then the minimum coverage shall be as set forth below. Such coverage shall be procured and maintained with Forms and insurance acceptable to City. All coverage shall be continuously maintained to cover all liability, claims, demands, and other obligations assumed by the Contractor pursuant to Section 5.2 above. In the case of any claims-made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. 5.3.2.1. Worker's Compensation insurance to cover obligafions imposed by applicable laws for any employee engaged in the performance of work under this contract, and Employers' Liability insurance with minimum limits of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) for each accident, FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) disease -policy limit, and FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) disease -each employee. Evidence of qualified self-insured status may be substituted for the Worker's Compensation requirements of this paragraph. 5.3.2.2. Commercial General Liability insurance with minimum combined single limits of ONE MILLION ""'" DOLLARS ($1,000,000.00) each oceursence and ONE MILLION DOLLARS ($],000,000.00) aggregate. The w policy shall be applicable to all premises and operations. The policy shall include coverage for bodily injury, broad form property damage (including completed operations), personal injury (including coverage for contractual and employee acts), blanket contractual, independent wntractors, products, and completed operations. The policy shall include coverage for explosion, collapse, and underground hazards. The policy shall contain a severability of interests provision. 5.3.2.3. Comprebensive Automobile Liability insurance with minimum combined single limits for bodily injury and property damage of not less than ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($I,OOQ000.00) aggregate with respect to each Contractor's owned, hired and non- owned vehicles assigned to or used in performance of the services. The policy shall contain a severability of interests provision ff the Contractor has no owned automobiles, the requirements of this Section 5.4.2.3 shall be met by each employee of the Contractor providing services to the City under this contract. 5.3.3. Except for any Professional Liability insurance that may be required, the policy or policies required above shall be endorsed to include the City of Aspen and the City of Aspen's officers and employees as additional insureds. Every policy required above shall be primary insurance, and any insurance carried by the City of Aspen, its officers or employees, or carried by or provided through any insurance pool of the City of Aspen, shall be excess and not contributory insurance to that provided by Contractor. No additional insured endorsement to the policy required above shall contain any exclusion for bodily injury or property damage arising from completed operations. The Contractor shall be solely responsible for any deductible losses under any policy required above. 5.3.4. The certificate of insurance provided by the City of Aspen shall be completed by the Contractor's insurance agent as evidence that policies providing the required coverage, conditions, and minimum limits aze in full force and effect, and shall be reviewed and approved by the City of Aspen prior to commencement of the contract. No other form of certificate shall be used. The certificate shall identify this contract and shall provide that the wvemge afforded under the policies shall not be canceled, terminated or materially changed until at least thirt~(301 dais prior written notice has been given to the City of Aspen. 5.3.5 In addition, these Certificates of Insurance shall contain the following clauses: Underwriters and issuers shall have no right of recovery or subrogation against the City of Aspen, it being the intention of the parties that the insurance policies so effected shall protect all parties and be primary coverage for any and all losses covered by the above-described insurance. To the extent that the City's insurers) may become liable for secondary or excess coverage, the City's underwriters and insurers shall have no right of recovery or subrogation against the Contractor.and issuers shall have no right of recovery or subrogation against the City of Aspen, it being the intention of the parties that the insurance policies so effected shall protect all parties and be primary coverage for any and all losses covered by the above-described insurance. To the extent that the City's insurers) may become liable for secondary or excess coverage, the City's underwriters and insurers shall have no right of recevery or subrogafion against the Contractor. The insurance companies issuing the policy or policies shall have no recourse against the City of Aspen for payment of any premiums or for assessments under any form of policy.insurance companies issuing the policy or policies shall have no recourse against the City of Aspen for payment of any premiums or for assessments under any form of policy. Any and all deductibles in the above-described insurance policies shall be assumed by and be for the amount of, and at the sole risk of the Proposer.and all deductibles in the above-described insurance policies shall be assumed by and be for the amount of, and at the sole risk of the Proposer. Location of operations shall be: "All operations and locations at which work in connection with the referenced project is done."of operations shall be: "All opemtrons and locations at which work in connection with the refer- encedproject is done." Certificates of Insurance for all renewal policies shall be delivered to the Architect at least fifteen (15) days prior to a policy's expiration date except for any policy expiring on the expiration date of this agreement or thereafter. 5.3.6. Failure on the part of the Contractor to procure or maintain policies providing the required coverage, conditions, s. and minimum limits shall constitute a material breach of contract upon which City may immediately terninate this contract, or at its discretion City may procure or renew any such policy or any extended reporting period thereto and may pay any and all premiums in connection therewith. All moneys so paid by City shall be repaid by Contractor to City upon demand, or City may offset the cost of the premiums against moneys due to Contractor from City. 5.3.7. City reserves the right to request and receive a certified copy of any policy and any endorsement thereto 5.4 City's Liability Insurance: 5.4.1. The parties hereto understand that the City is a member of the Colorado Intergovernmental Risk Sharing Agency (CIRSA) and as such participates in the CBLSA Property/Casualty Pool. Copies of the CIRSA policies and manual are kept at the City of Aspen Finance Department and are available to Contractor far inspection during normal business hours. City makes no representations whatsoever with respect to specific coverage offered by CIRSA. City shall provide Contractor reasonable notice of any changes in its membership or participation in CIRSA. 5.4.2. The parties hereto further understand and agree that City is relying on, and does not waive or intend to waive by any provision of this contract, the monetary limitations or any other rights, immunities, and protections provided by the Colorado Governmental hnmnnity Act, Section 24-10-101 et seq., C.R.S., as from time to time amended, or otherwise available to City, its officers, or its employees. Further, nothing in the Contract Documents shall be construed or interpreted to require or provide for indemnification of the Contractor by the City for any injury to any person or any property damage whatsoever which is caused by the negligence or other misconduct of City or its agents or employees. ARTICLE 6 -CONTRACTOR'S RESPONSIBILITIES 6.1 General Responsibilities: w. 6.1.1. The Contractor shall perform all of the Work in conformance with the Contract Documents. 6.1.2. The Contractor wvenants and warrants that it shall be responsible for perfomting the Work, and that it shall do or cause to be done the Work and services as required in the Contract Documents and any additional, collateral, and incidental Work and services as maybe necessary in order to complete the Project in accordance with the requirements of the Contract Documents, shall be responsible far providing completed Work which meets the results required by the Contract Documents, and shall achieve Substantial Completion (100% of the Work) by the Contract Time. 6.1.3. Construction services shall be performed in accordance with those professional standards listed in the Special Conditions for quality and scope and shall be performed by the entities and persons, Subcontractors and specific personnel identified in the Contractor's Proposal in accordance with their respective degrees of participation provided and represented to City. Other consmtction services shall be performed by qualified constmction Subcontractors and Suppliers, selected and paid by the Contractor. Nothing contained in the Contract Documents shall be construed to create any obligation or contractual liability conning from the City to any of these persons or entities. ~...~ G2 Supervision and Superintendence: 6.2.1. The Contractor shall supervise and direct the Work competently and efficiently devoting such attention thereto and applying such skills and expertise as may be necessary to perform the Work in accordance with the Contract Documents. The Contractor shall be solely responsible for the means, methods, techniques, sequences and procedures of construction. The Contractor shall be responsible to see that the fmished Work complies accurately with the Contract Documents. 6.2.2. The Contractor shall keep on the Work at all times during its progress a competent resident superintendent, who shall not be replaced without written notice to the City and the Engineer except under extraordinary circumstances. The superintendent will be the Contractor's representative at the site and shall have authority to act on behalf of the Contractor. All communications given to the superintendent shall be as binding as if given to the Contractor. 6.3 Labor, Materials and Equipment: 6.3.1. The Contractor shall provide competent, suitably qualified personnel to survey and lay out the Work and perform construction as required by the Contract Documents. The Contractor shall at all times maintain good discipline and order at the site. Except in connection with the safety or protection of persons or the work or property at the site or adjacent thereto, and except as otherwise indicated in the Contract Documents, all Work at the site shall be performed during regulaz working hours, and the Contractor will not permit overtime work or the performance of Work on Saturday, Sunday or any legal holiday without the City's written consent given after prior written notice to the Engineer. 6.3.2. Unless otherwise specified in the Specific Conditions or Specific Provisions, the Contractor shall famish and assume full responsibility for all materials, equipment, labor, transportafion, construction equipment and machinery, tools, appliances, fuel, power, light, heat, telephone, water, sanitary facilities, temporary facilities and all other facilities and incidentals necessary for the furnishing, performance, testing, start-up and completion of the Work. 6.3.3. All materials and equipment shall be of good quality and new, except as otherwise provided in the Contract Documents. If required by the Engineer, the Contractor shall furnish satisfactory evidence (including reports of required tests) as to the kind and quality of materials and equipment. All materials and equipment shall be applied, installed, connected, erected, used, cleaned and conditioned in accordance with the instructions of the applicable Supplier except as otherwise provided in the Contract Documents; but no provision of any such instructions will be effective to assign to the Engineer, or any of the Engineer's consultants, agents or employees, any duty or authority to supervise or drect the famishing or performance of the Work or any duty or authority to undertake responsibility contrazy to the provisions of paragraph 9.10.1. or 9.10.2. Q4-Q6 Reserved 6.7. Work Schedule: 6.7.1. The Contractor shall submit to the Engineer for acceptance such schedule of work progress reports, estimates, records, and other data as the City may require concerning work performed or to be performed. 6.7.2. Prior to beginning of Work and or before the Pre-connWction Conference, the Contractor shall submit schedules showing the order in which he/she proposed to Cary on the Work, including dates at which he/she will start the various parts of the Work, estimated date of completion of each part. 6.8 Substitutes of "or-equal" Items: 6.8.1. Whenever materials or equipment aze specified or described in the Contract Documents by using the name of a proprietary item or the name of a particulaz Supplier the naming of the item is intended to establish the type, function and quality required. Unless the name is followed by words indicating that no substitution is permitted, materials or equipment of other Suppliers may be accepted by the engineer if sufficient information is submitted by the Contractor to allow the Engineer to determine that the material or equipment proposed is equivalent or equal to that named. The ~` Engineer will include the following as supplemented in the General Requirements. Requests for review of substitute items of material and equipment will not be accepted by the Engineer from anyone other than the Contractor If the w... Contractor wishes to famish or use a substimte item of material or equipmett, the Contractor shall make written application to the Engineer for acceptance thereof, certifying that the proposed substitute will perform adequately the functions and achieve the results called for by the general design, be similaz and of equal substance m that specified and be suited to the same use as that specified. The application will state that the evaluation and acceptance of the proposed substitute will not prejudice the Contractor's achievement of Substantial Completion on time, whether or not acceptance of the substitute for use in the Work will require a change in any of the Contract Documents (or in the provisions of any other direct contract with the City for work on the Project) to adapt the design to the proposed substimte and whether or not incorporation or use of the substitute in connection with the Work is subject to payment of any license fee or royalty. All variations of the proposed substitute from that specified will be identified in the application and available maintenance, repay and replacement service will be indicated. The application will also contain an itemized estimate of all costs that will result directly or indirectly from acceptance of such substitute, including costs of redesign and claims of other contractors affected by the resulting change, all of which shall be considered by Architect in evaluating the proposed substitute. The Engineer may require the Contractor to famish at Contractor's expense additional data about the proposed substitute. 6.8.2. If a specific means, method, technique, sequence or procedure of construction is indicated in or required by the Contract Documents, the Contractor may famish or utilize a substimte means, method, sequence, technique or procedure of construction acceptable to the Engineer. The procedure for review by the Engineer shall be similaz to that provided in paragraph 6.8.1. 6.8.3. The Engineer will be allowed a reasonable time within which to evaluate each proposed substimte. The Engineer will be the sole judge of acceptability, and no substimte will be ordered, installed or utilized without the Engineer's prior written acceptance which will be evidenced by an approved Shop Drawing. The City may require the Contractor to furnish at the Contractor's expense a special performance guarantee or other surety with respect m any substimte. The Engineer will record time required by the Engineer and the Engineer's consultants in evaluating substitutions proposed by the Contractor and in making changes in the Contract Documents occasioned thereby. Whether or not the Engineer accepts a proposed substimte, the Contractor shall reimburse the City for the changes of the Engineer and the Engineer's consultants for evaluating each proposed substimte. G 9 SubcondaMOrs, Suppliers and Others: 6.9.1. The Contractor shall not employ any Subcontracmr, Supplier or other person or organization (including those acceptable to the City and the Engineer as indicated in paragraph 6.9.2), whether initially or as a substimte, against whom the City or the Engineer may have reasonable objection. 6.9.2. If the Special Conditions require the identity of certain Subcontractors, Suppliers or other persons or organizations including those who are m famish the principal items of materials and equipment to be submitted to the City in advance of the specified date prior to the Effective Date of the Agreement for acceptance by the City and the Engineer and if the Contractor has submitted a list thereof in accordance with the Special Conditions, the City's or the Engineer's acceptance (either in writing or by failing to make written objection thereto by the date indicated for acceptance or objection in the bidding documents or the Contract Documents) of any such Subeontracmr, Supplier or other person or organization so identified may be revoked on the basis of reasonable objection after due investigation, in which case the Contractor shall submit an acceptable substimte, the Contract Price will be increased by the difference in the cost occasioned by such substitution and an appropriate Written Notice of Amendment signed. No acceptance by the City or the Engineer of any such Subcontractor, Supplier or other person or organization shall constitute a waiver of any right of the City or the Engineer to reject Defecfive Work. 6.9.3. The Contractor shall be fully responsible to the City and the Enginer for all acts and omissions of the Subeontractors, Suppliers and other persons and organizations performing or famishing any of the Work under a direct or indirect contract with Conhactor just as Contractor is responsible for Contractor's own acts and omissions. Nothing in the Contract Documents shall create any contractual relationship between the City or the Engineer and any such Subcontractor, Supplier or other person or organization, nor shall it create any obligation on the part of the City or the Engineer to pay or [o see to the payment of any moneys due any such Subcontractor, Supplier or other person or ~... organization except as may otherwise be required by Laws and Regulations. 6.9.4. The divisions and sections of the Specifications and the identifications of any Drawings shall not control the Contractor in dividing the Work among Subcontractors or Suppliers or delineating the Work to be performed by any specific trade. 6.9.5. All Work performed for Contractor by a Subcontractor will be pursuant to an appropriate agreement between the Contractor and the Subcontractor which specifically binds the Subcontractor to the Applicable terms and conditions of the Contract Documents for the benefit of the City and the Engineer and contain waiver provisions as required by Section 5.3. The Contractor shall pay each Subcontractor a just shaze of any insurance moneys received by the Contractor on account of losses. QIO Subcontracting and Percentage ojWorkAwarded to Subcontractor(s): 6.10.1. The Contractor may utilize the services of specialty Subcontractors on those parts of the Work, which under normal contracting practices, are performed by specialty Subcontractors. 6.10.2. The Contractor shall not award Work to Subcontractor(s), inexcess of forty nine percent (49%) of the Contract Price. This condition shall be a minimum standard for a qualified Prime Contractor to perform within the City rights of ways. 6.17 Patent Fees and RoyaUies: The Contractor shall pay all license fees and royalties and assume all costs incident to the use in the performance of the Work or the incorporation in the Work of any invention, design, process, product or device which is the subject of patent rights or copyrights held by others. Contractor shall indemnify and hold harmless the City and the Engineer and anyone directly or indirectly employed by either of them from and against all claims, damages, losses and expenses (including attorney's fees and court costs) arising out of any infringement of patent rights or copyrights incident to the use in the perfornance of the Work or resulting from the product or device not specified in the COntl'aCt Documents, and shall defend all such claims in connection with any alleged infringement of such rights. ~ I2 Permits: Unless otherwise provided in the Special Conditions, the Contractor shall obtain and pay for all consWC6on permits and licenses. The City shall assist the Contractor, when necessary, in obtaining such permits and licenses. The Contractor shall pay all governmental charges and inspection fees necessary for the prosecution of the Work, which aze applicable at the time of opening of Bids on the Effective Date of the Contract. The Contractor shall pay all charges of utility Cirys for connections to the Work, and the City shall pay all charges of such utility owners for capital costs related thereto such as plant investment fees. G13 Laws and Regulations: 6.13.1. the Contractor shall give all notices and comply with all Laws and Regulatons applicable to furnishing and performance of the Work. Except where otherwise expressly required by applicable Laws and Regulations, neither the City nor the Engineer shall be responsible for monitoring the Contractor's compliance with any Laws or Regulations. 6.13.2. If the Contractor observes that the Specifications or Drawings are at variance with any Laws or Regulations, the Contractor shall give the Engineer prompt written notice thereof, and any necessary changes will be authorized by one of the methods indicated in paragraph 3.4. If the Contractor performs any Work knowing or having reason to know that it is contrary to Laws or Regulations, and without such notice to the Engineer, the Contractor shall bear all costs arising therefrom. G14 Taxes: The Contactor shall pay all existing and future applicable Federal, State and local sales, consumer, use and other similaz taxes whether direct or indirect. Federal excise tax may not apply to materials purchased by the City. The Contract Price shall include all other Federal, State, and/or local direct or indirect taxes which do apply. The Contract Price shall include the cost of compliance with all other Federal Laws and Regulations at no additional cost to the City (except as provided in the Contract Documents). The Contractor shall not be reimbursed sepazately for any taxes which may apply except as provided in the Contract Documents and the Contractor shall be responsible for all taxes which may apply. The City is tax exempt from Federal Excise Tax under Chapter 32 of the Internal Revenue Code. The City is exempt from such taxes under registration numbers 98-02624. The Contactor and its Subcontractors shall apply to the Colorado Department of Revenue for a Certificate of Exemption indicating that the Connactor or Subcontractor's purchase of construction material or building materials is for use in a building, structure, or other public work owned and used by the City. GlS Use ajPremises: 6.15.1. The Contrnctor shall confine construction equipment, the storage of materials and equipment and the operations of workers to the Project site and land and areas identified in, and permitted by, the Contract Documents and other land and areas permitted by Laws and Regulations, rightsof--way, permits and easements, and shall not unreasonably encumber the premises with constuction equipment or other materials or equipment. The Contractor shall assume full responsibility for any damage to any such land or area, or to the owner or occupant thereof or of any land or areas contiguous thereto, resulting from the performance of the Work. Should any claim be made against the City or the Engineer by any such owner or occupant because of the performance of the Work, Contractor shall promptly settle with such other party by agreement or otherwise resolve the claim by law. The Contractor shall, to the fullest extent permitted by Laws and Regulations, indemnify and hold the City and the Engineer harmless from and against all claims, damages, losses and expenses (including, but not limited to, fees of engineers, architects, attorneys and other professionals and court costs) arising directly, indirectly or comsequentially out of any action, legal or equitable, brought by any such other v party against the City or the Engineer to the extent based on a claim arising out of the Contractor's performance of the ,,,~, Work. 6.15.2. During the progress of the Work, the Contractor shall keep the premises free from accumulations of waste materials, mbbish and other debris resulting from the Work. At the completion of the Work, the Contractor shall remove all waste materials, mbbish and debris from and about the premises as well as all tools, appliances, constucfion equipment and machinery, and surplus materials, and shall leave the site clean and ready for occupancy by the City. The Contractor shall restore to original condition all property not designated for alteration by the Contract Documents. 6.15.3. The Contractor shall not load or permit any part of any stmcture to be loaded in any manner that will endanger the stmcture, nor shall the Contractor subject any part of the Work or adjacent property to stresses or pressures that will endanger it. G76 Record Documents: The Contractor shall maintain in a safe place at the site one record copy of all Drawings, Specifications, Addenda, Written Amendments, Change Orders, Work Directive Changes, Field Orders and written interpretations and clarifications in good order and annotated to show all changes made during construction. These record documents together with all approved samples and a counterpart of all approved Shop Drawings will be available to the Engineer for reference. Upon completion of the Work, these record documents, samples and Shop Drawings will be delivered to the Engineer for the City. 6.17 Safety and ProteMtoa: 6.17.1. The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Work. The Contractor shall take all necessary precautions for the safety of, and shall • ""' provide the necessary protection to prevent damage, injury or loss to: .`r 6.17.1.1. All employees on the Work and other persons and organizations who may be affected thereby; 6.17.1.2. All the Work and materials and equipment to be incorporated therein, whether in storage on or off the site; and 6.17.1.3. Other property at the site or adjacent thereto, including trees, shmbs, lawns, walks, pavements, road- ways, strnctures, utilities and Underground Facilities not designated for removal, relocation or replacement in the course of construction. The Contractor shall comply with all applicable Laws and Regulations of any public body having jurisdiction for the safety of persons or property or to protect them from damage, injury or loss; and shall erect and maintain all necessary safeguards for such safety and protection. The Contractor shall notify owners of adjacent property and of Underground Facilities and utility owners when prosecution of the Work may affect them, and shall cooperate with them in the protection, removal, relocation and replacement of their property. All damage, injury or loss to any property referred to in paragraph 6.17.1.2 or 6.17.1.3 caused, directly or indirectly, in whole or in part, by the Contractor, any Subcontractor, Supplier or any other person or organization directly or indirectly employed by any of them to perform or furnish any of the Work or anyone For whose acts any of them may be liable, shall be remedied by the Contractor. The Contractor's duties and responsibilities for the safety and protection of the Work shall continue until such time as all the Work is completed and the Engineer has issued a notice to the City and the Contractor in accordance with Section 14.5 that the Work is acceptable (except as otherwise expressly provided in wnnection with Substantial Completion). 6.17.2. The Contractor shall designate a person competent in OSHA safety related matters at the site at all times during construction whose duty shall be the prevention of accidents including confined space entry and work in the confined spaces. Ql8 Emergencies: hi emergencies affecting the safety or protection of persons or the Work or property at the site or adjacent thereto, the Contractor, without special instruction or authorization from the Engineer or the City, is obligated to act to prevent threatened damage, injury or loss. The Contractor shall give the Engineer prompt written notice if the Contractor believes that any significant changes in the Work or variations from the Contract Documents have been caused thereby. [f the Engineer determines that a change in the Contract Documents is required because of the action taken in response W an emergency, a written order will be issued to document the wnsequences of the changes or variations. G l9 Shop Drawings and Samples: 6.19.1. After checking and verifying all field measurements and after complying with applicable procedures specified in the Contract Documents, the Contractor shall submit to the Engineer for review and approval in accordance with the approved schedule of Shop Drawing submissions prior to Pre-construction Conference, or for other appropriate action if so indicated in the Special Conditions, three /3) conies (unless otherwise specified) of all Shop Drawings, which will beaz a stamp or specific written indication that the Conttactor has satisfied the Contractor's responsibilities under the Contract Documents with respect to the review of the submission. All submissions will be identified as the Engineer may require. The data shown on the Shop Drawings will be complete with respect to quantities, dimensions, specified performance and design criteria, materials and similaz data to enable the Engineer to review the information as required. 6.19.2. The Contractor shall also submit to the Engineer for review and approval with such promptness as to cause no delay in Work, all samples required by the Contract Documents. All samples will have been checked by and accompanied by a specific written indicaton that the Contractor has satisfied the Contractor's responsibilities under the Contmct Documents with respect to the review of the submission and will be identified cleazly as to material, Supplier, pertinent data such as catalog numbers and the use for which intended. rr++~ 6.19.3. Before submission of each Shop Drawing or sample, the Contractor shall have determined and verified all V,.. quantities, dimensions, specified performance criteria, installation requirements, materials, catalog numbers and similar data with respect thereto; and reviewed or coordinated each Shop Drawing or sample with other Shop Drawings and samples and with the requirements of the Work and the Contract Documents. 6.19.4. At the time of each submission, the Contractor shall give the Engineer specific written notice of each variation that the Shop Drawings or samples may have from the requirements of the Contract Documents, and, in addition, shall cause a specific notation to be made on each Shop Drawing submitted to the Engineer for review and approval of each such variation. 6.19.5. The Engineer will review and approve with reasonable promptness Shop Drawings and samples, but the Engineer's review and approval will be only for conformance with the design concept of the Project and for compliance with the information given in the Contract Documents and shall not extend to means, methods, techniques, sequences or procedures of construction (except where a specific means, method, technique, sequence or procedure of construction is indicated in or required by the Contract Documents) or to safety precautions or programs incident thereto. The review and approval of a separate item as such will not indicate approval of the assembly in which the item functions. The Contractor shall make corrections required by the Engineer, and shall return the required number of corrected copies of Shop Drawings and submit as required new samples for review and approval. The Contractor shall direct specific attention in writing to revisions other than the corrections called for by the Engineer on previous submittals. 6.19.6. The Engineer's review and approval of Shop Drawings or samples shall not relieve the Contractor from responsibility for any variation from the requirements of the Contract Documents unless the Contractor has in writing called the Engineer's attention to each such variation at the time of submission as required by paragraph 6.19.4 and the Engineer has given written approval of each such variation by a specific written notation thereof incorporated in or accompanying the Shop Drawing or sample approval; nor will any approval by the Engineer relieve the Contractor from responsibility for ercors or omissions in the Shop Drawings or from responsibility for having complied with the provisions of paragraph 6.19.3. 6.19.7. Where a Shop Drawing or sample is required by the Specifications, any related Work performed prior to the Engineer's review and approval of the pertinent submission will be the sole expense and responsibility of the Contractor. G20 Mechanics'Liens: 6.20.1. The Contractor covenants and agrees that, to the extent permitted by law, no claims or mechanics' liens against public funds (mechanic's liens) or claims of any kind, will be permitted to arise, be filed or maintained against the Project or any part of it, any interest in it or any improvements on it, against any moneys due or to became due from the City to the Contractor, for or on account of any work, labor, services, materials, equipment or other items performed or famished for or in connection with the Project, and the Contractor for itself, its Subcontractors, laborers and material suppliers and employees does waive, release and relinquish these claims or liens and all rights to file or maintain these liens and agrees further that this waiver of liens and waiver of the right to file or maintain liens shall be independent covenant and shall apply also to work, labor, services performed, materials, equipment and other items famished under any Change Order or supplemartal agreement for extra or additional work in connection with the Project. The Contractor agrees to defend, indemnify, protect and save harmless the City from and against any and all claims or liens and actions brought or judgments rendered, and from and against any and all loss, damages, liability, costs and expenses, including legal fees and disbursements, which the City may sustain or incur in connection with the Project. 6.20.2. The Contractor also agrees as above for all of its Subcontractors, including but not limited to suppliers and employees. If any of the Contractor's Subcontractors, suppliers, employees or any other person directly or indirectly acting for, through or under its authority or any of them files or maintains a lien or claim as described above, the Contractor agrees to cause claims or liens to be satisfied, removed or discharged at its own expense by bond, payment or otherwise within thirty (30) consecutive calendar dak from he date of the filing, and upon the Contractor's failure to do so the City shall have the right, in addition to all other rights and comedies provided under this Contract or by law, to "'~ cause the liens or claims to be satisfied, removed or dischazged by whatever means the City chooses, at the entire cost and `.r expense of the Contractor, the expense to include legal fees and disbursements. The Contractor shall give a copy of Claim Release form to all Subcontractors and suppliers and shall include these provisions in all written contrncts with Subcontractors, or give written notice to all Subcontractors, suppliers or other persons having oml agreements with the °"~" Contractor. 6.20.3. The Contractor agrees that moneys received for the performance of this Contract shall be used fast for payment due for labor, material, and services for the Project and taxes, and the moneys shall not be diverted to satisfy obligations of the Contractor on other accounts or contracts. The Contractor shall pay Subcontractors within Ten L01 consecutive calendar davs of receipt of a progress payment from the City. The Contractor shall famish sworn affidavits in accordance with the form furnished by the City, which shall state that amounts due or to become due, amounts paid, and any other information necessary to indicate the financial condition of the Contractor, insofaz as it relates to services, labor and material fiunished, and to be famished, under this Contract. The City may take steps it may deem necessary to protect itself against any claims. 6.21 Continuing the Work: The Contractor shall carry on the Work and adhere to the progress schedule during all disputes or disagreements with the City. No Work shall be delayed or postponed pending resolution of any disputes or disagreements, except as permitted herein or as the Contractor and the City may otherwise agree in writing. 6.22 Contractor Facilities: All temporary contractor facilities shall be in accordance with regulations and codes governing such construction. The types of temporary construction facilities required for the Project may include, but are not necessarily limited to, the following: (a) job site office space, (b) conswction water distribution, (c) temporary closures, (d) temporary heat, (e) hoists and temporary cranes, (f) temporary roads and paving, (g) construction aids and miscellaneous facilities, (h) temporary power distribution, (i) temporary lighting, (j) temporary toilet facilities. All operations of the Contractor, including storage of materials, upon the City's premises shall be confined to azeas authorized or approved by Owner in writing. Temporary buildings, storage sheds, shops, offices, may be erected by the Contractor only with the written approval of the City and shall be built or provided with labor and materials furnished by the Contractor without expense to the City. Such temporary buildings and utilities shall remain the property of the Contractor and shall be removed by it at its expense upon completion of the Work. ARTICLE 7 -OTHER WORK 7.1 Related Work at Site: 7.1.1. The City may perform other work related to the Project at the site by the Ciry's own Forces, have other work performed by utility owners or let other direct wntracts therefor which shall contain General Conditions similaz to these. The Contractor shall perform and coordinate his/her activities with other Contractors to avoid conflict and minimize dismptions. 7.1.2. The Contractor shall afford each utility owner and other contractor who is a party to such a direct contract (or the City if the City is performing the additional work with the City's employees) proper and safe access to the site and a reasonable opportunity for the introduction and storage of materials and equipment and the execution of such work, and shall properly connect and coordinate the Work with theirs. The Contractor shall do all cutting, fitting and patching of the Work that may be required to make its several parts come together properly and integrate with such other work. The Contractor shall not endanger any work of others by cutting, excavating or otherwise altering their work and will only cut or alter their work with the written consent of Architect and the others whose work will be affected. The duties and responsibilities of Contractor under this paragraph are for the benefit of such utility owners and other contractors to the extent that there are comparable provisions for the benefit of the Contractor in said direct contracts between the City and such utility owners and other contractors. 7.1.3. If any part of the Contractor's Work depends for proper execution or results upon the work of any such other contactor or utility owner (or the City), the Contractor shall inspect and promptly report to the Engineer in writing any delays, defects or deficiencies in such work that render it unavailable or unsuitable for such proper execution and results. ^"' The Contracto>'s failure to report such conditions will constitute an acceptance of the other work as fit and proper for ~- integration with the Contractor's Work except for latent ornon-apparent defects and deficiencies in the other work. 7.2 Coordination: If the City contracts with others for the performance of other work on the Project at the site, the person or organization of the activities among the various prime wntradors may be identified in the Special Conditions, and the specific matters to be covered by such authority and responsibility may be itemized, and the extent of such authority and responsibilities may be provided, in the Special Conditions. Unless otherwise provided in the Special Conditions, neither the City nor the Engineer shall have any authority or responsibility in respect of such coordination. ARTICLE 8 -CITY'S RESPONSIBILITIES 8.1. The City shall issue all communications to the Contractor through the Engineer or his/her designated person. 8.2. The City shall famish the data required of the City under the Contract Documents promptly and shall make payments to the Contractor through processing of the monthly Progress Pay Estimate forms within 30 days from the cut- offdate for a pay estimate form. 8.3. The City represents that an amount of money equal to the Contract Price has been duly appropriated in accordance with the Municipal Code of the City of Aspen, under a purchase order. The City shall not issue any Change Order or execute a Written Amendment requiring additional compensable work, which work causes the aggregate amount appropriated by the City, unless the Contractor is given a written assurance that a lawful appropriations to cover the costs of the additional work shall be made. ARTICLE 9 -ENGINEER'S STATUS DURING CONSTRUCTION 9.1 City's Representative: The Engineer shall be the City's representative during the consWction period. The duties and responsibilities and the limitations of authority of the Engineer as the City's representative during wnstruction are set forth in the Contract Documents and shall not be extended without written consent of the City and the Engineer. 9.2 Visits to Site: The Engineer shall make visits to the site at intervals appropriate to the various stages of construction to observe the progress and quality of the executed Work and to determine, in genernl, if the Work is proceeding in acwrdance with the Contract Documents. The Engineer shall make on-site inspections to observe the quality or quantity of the Work. The Engineer's efforts will be directed towazd providing for the City a greater degree of confidence that the completed Work will conform to the Contract Documents. On the basis of such visits and on-site observations, the Engineer will keep the City informed of the progress of the Work and will endeavor to guard the City against defects and deficiencies in the Work. 9 3 Project Representation: If the City and the Engineer agree, the Engineer will furnish a Resident Project Representative to assist the Engineer in observing the performance of the Work. The duties, responsibilities and limitations of authority of any such Resident Project Representative and assistants will be to ensure conformance of work with specifications provided in the Special Conditions. If the City designates another agent to represent the City at the site who is not the Engineer's agent or employee, the duties, responsibilities and limitations of authority of such other person will be as provided in the Special ' Conditions. ~. 9.4 Ciarifrcationandlnterpretations: The Engineer will issue with reasonable promptness such written clarifications or interpretations of the requirements of the Contract Documents (in the form of Drawings or otherwise) as the Engineer may determine necessary, which shall be consistent with or reasonably inferable from the overall intent of the Contract Documents. If a written clarification or interpretation justifies an increase in the Contract Price or an extension of the Contract Time, the Contractor shall meet with the Engineer and resolve the issue. All such requests or claims shall be submitted to the City Engineer. 9.5 Authorized Variations in Work and Minor Contract Revisions: The City Engineer may request or authorize minor variations in the Work from the requirements of the Contract Documents which do not involve an adjustment th the Contract Price or the Contract Time and aze consistent with the overall intent of the Contract Documents. These may be accomplished by a written request or a field order and will be binding on the City, and also on the Contractor who shall perform the Work involved promptly. If the Contractor believes that a field order justifies an extension of the Contract Time and the parties are unable to agree as to the extent thereof, the Contractor may make a claim therefor as provided herein. 9.6 Rejecting Defective Work: The Engineer will have authority to disapprove or reject Work which the Engineer believes to be Defective, and will also have authority to require special inspection or testing of the Work as provided herein below, whether or not the Work is fabricated, installed or completed. 9.7. Shop Drawings, Change Orders and Payments: 9.7.1. In connection with the Engineer's responsibility for Shop Drawings and samples, see paragraphs 6.19.1. through 6.20.1. inclusive. 9.7.2. tn connection with the Engineer's responsibilities as to Change Orders, see Article 10 and Article 11. 9.7.3. tn connection with the Engineer's responsibilities in respect of request for Payment, etc., see Article 14. 9.8 Decisions on Disputes: 9.8.1. The Engineer will be the initial interpreter of the requirements of the Contract Documents and judge of the acceptability of the Work thereunder. Claims, disputes and other matters raised by Contractor relating to the acceptability of the Work or the interpretation of the requirements of the Contract Documents pertaining to the performance and famishing of the Work and claims under Articles 11 and 12 in respect to changes in the Contract Price or Contract Time shall be referred initially to the Engineer in writing with a request for a formal decision in accordance with this paragraph, which the Engineer will render in writing within a reasonable time. Written notice of each such claim, dispute and other matter by the Contractor will be delivered to the Engineer promptly (but m no event later than thirty days) after the occurrence of the event giving rise thereto, and written supporting data will be submitted to the Engineer and the City within sixty days after such occurrence unless the Engineer allows an additional period of time to ascertain more accurate data in support of the claim. 9.8.2. The rendering of a decision by the Engineer pursuant to paragraph 9.8.1. with respect to any such claim, dispute or other matter shall be a condition precedent to any exercise by the Contractor of such rights or remedies as the Contractor may otherwise have under the Contract Documents or by Laws or Regulations in respect of any such claim, dispute or other matter. The City shall not be bound by any initial interpretation by the Engineer of the requirements of the Contract Documents, judgment on the acceptability of the Work thereunder, or fornal decision made by the Engineer in accordance with paragraph 9.8.1. Any dispute not resolved by the initial decision of the Engineer shall be decided by the City, who shall reduce the decision in writing and furnish a copy thereof to the Contractor and the Engineer. The decision of the City shall be final subject to review by the Pitkin County District Court in Pitkin County, Colorado. Pending final decision of a dispute hereunder, the Contractor shall proceed diligently with the performance of the Work and in accordance with the Engineer's interpretation. a,._ 9.9 Reserved 9.10 Limitations on Engineer's Responsibilities: 9.10.1. Neither the Engineer's authority to act under this Article 9 or elsewhere in the Contract Documents nor any decision made by the Engineer in good faith either to exercise or not exercise such authority shall give rise to any duty or responsibility of the Engineer to the Contractor, any Subcontractor, any Supplier, or any other person or organization performing any of the Work, or to any surety for any of them. 9.10.2. Whenever in the Contract Documents the terms "as ordered", "as directed", "as required", "as allowed", "as approved" or terms of like effect or import are used, or the adjectives "reasonable", "suitable", "acceptable", "proper" or "satisfactory" or adjectives of like effect or import are used to describe a requirement, direction, review or judgment of the Engineer as to the Work, it is intended that such requirement, direction, review or judgment will be solely to evaluate the Work for compliance with the Contract Documents (unless there is a specific statement indicating otherwise). The use of any such term or adjective shall not be effective to assign to the Engineer any duty or authority to supervise or direct the famishing or performance of the Work or any duty or authority to undertake responsibility contrary to the Contract Documents. ARTICLE 10-CHANGES IN THE WORK 101 Ciry Initiated Changes 10.1.1. The City may require, without notification to sureties, the Contractor to perform changes, additions or deletions to the Work at anytime after execution of the Contract without invalidating the Contract. Changes shall be accomplished as set forth in Section 3.2, above. 10. L2. The Contractor shall promptly perform changes in the Work in accordance with applicable provisions of the Contract Documents, unless otherwise provided in a Change Order or Amendment to the Contract for Construction. 10.1.3. The following procedure shall be followed for the City notifying the Contractor of proposed City initiated changes. The Engineer shall issue a notice informing the Contractor of a planned change in the Work and its scope, and requesting the Contractor's detailed price proposal. The Contractor, at no expense to the City, shall submit a priced proposal for performing the proposed change in the Work. The Contractor, within Ten (101 consecutive calendar days after receiving the Notice of Change, or such longer time which the Engineer in his/her discretion has granted, shall provide the Engineer with a complete and itemized proposal which includes the estimated increase or decrease in the Contract Price and/or in the Contract Time attributable to the planned changes on the criteria and methods described in Article 11. The Contractor shall be responsible for delays to the Work and any additional costs incurred by the City caused by its failure [o submit complete pricing information within the time provided above. The Contractor shall participate with the City in prompt joint analysis and negotiations to fmalize a Change Order, if necessary. 10.2 Written Notice ojChange 10.2.1. A Written Notice of Change may be used when: a) The City determines that the Contractor must proceed immediatety to perform a change in the Work in order to avoid an adverse impact on the schedule or other unchanged Work, and sufficient time is not available to negotiate an adjustment to the Contract Price or Contract Time; or b) The City and Contractor have not completed their negotiation and reached agreement on all of the terms of a Change Order, but the City requires the Contractor to proceed without such agreement. "' 10.2.2. Upon receipt of a Written Notice of Change the Contractor shall promptly proceed with performing the change w..,. in the Work. Additionally, the Conttactor shall comply with all the requirements of 10.3 of these General Conditions. 10.3 Change Order When the Contractor and the City reach agreement on the adjustments to the Contract Price and/or Contract Time, such agreements shall be promptly recorded in an executed Change Order. 10.4 Contractor Change Request 10.41. If the Contractor. (i) receives any oral or written instructions, directives or interpretations of Contract Documents, or determinations from the Engineer or, (ii) identifies what it believes are design errors or omissions in the Contract Drawings or Specifications, or (iii) encounters a differing site condition; or, (iv) is delayed in the progress of the Work; or, (v) becomes aware of any other matter or crcumstance which it believes would require a change m the Contract Price or Conhact Time, the Contractor shall give the Engineer prompt written notice of such matters in a letter or notice denominated "Contractor Change Request". 10.4.2. All Contractor Change Requests shall be dated, numbered sequentially, and shall describe the action or event which the Contractor believes may require an extension in time or price. The Contactor shall also provide descriptions of possible Contractor actions or solutions to minimize the cost of the Contractor Change Request and, provide an estimate of the adjustment in the Contract Price and/or Contract Time which it believes is appropriate. 10.4.3. With respect to orders, instructions, directives, interpretations, determinations, or the discovery of any ercors or omissions in the Contract Documents, a Contrnctor Change Request shall be submitted before the Contractor acts on them, but in no event more than Ten (101 consecutive calendar davs after they were received or discovered. 10.8.4. With respect to any differing site conditions, a Contractor Change Request shall be submitted before the conditions are disturbed, but in no event more than Ten (!0) consecutive calendar days after the conditions are first discovered. 10.4.5. With respect to delays, a Contractor Change Request shall be submitted as soon as the Contractor has knowledge of the delay, but in no event more than Ten (10) consecutive calendar dam therefrom. 10.8.6. With respect to any matters or circumstance which the Contractor believes would require a change, including delays, a Contractor Change Request shall be submitted as soon as the Contractor has knowledge of the matter or circumstance, but in no event more than Ten (101 consecutive calendar dam after the Contractor becomes aware of such circumstance or matter. 10.5 Down Time: The Contractor may be granted time extension for down time. No other compensation of any kind shall be made to the Contractor for down time. Equipment failure, lack of adequate labor or tools or materials to perforn the Work shall not constitute down time. 10.6 Submittal Requirements and Waiver ojClaims 10.6.1. If the Contractor does not submit a Contractor Change Request within the time required above, any action by the Contractor related to such order, direction, iswction, interpretation, determination, design error or omission, or other matter, including delays or differing site conditions, will not be considered by the City as a change to the Work and the Contractor waives any claim for an adjustment on the Contract Price or the Contract Time. 10.6.2. The Contractor shall, within Ten (10) consecutive calendar days submit in detail, a Contrnctor Change Request, and provide the Engineer a complete and itemized proposal which contains the information described in Article 11. The proposal shall also contain a detailed explanation, citing all applicable provisions in the Contract Documents, which supports the Contractor Change Request. If the Contractor does not submit its itemized proposal within the time /~ described above or within such extension which the Engincey in his/her discretion may have granted in writing, it waives -~' °' any claim For an adjustment in the Contract Price or Contract Time arising out of the act or event described in the .,„, Contract Change Request. 10.6.3. If a Connector Change Request is denied by the Engineer, in whole or in part, any claim for an increase in the Contract Price or Contract Time arising out of the act or event described in the Contractor Change Request is waived unless the Contractor timely complies with the provisions of pazagmphs 10.4.1. through 10.4.6. ARTICLE 11. CHANGE OF CONTRACT PRICE OR CONTRACT TIME 11.1 Contract Price Adjustments. All adjustments to the Contract Price shall be determined by using one or more of the following methods: 11.1.1 A negotiated lump sum for work items that cannot be itemized. The Contractor shall promptly provide suffi- cient substantiating data, including calculations, measurements, cost records, production rates, equipment types and capacity, labor costs by craft and other infomtation which the City may reasonably require the Contractor to produce in order to permit the City to evaluate the Conhector's lump sum change order proposals. In pricing this proposal, the Contractor shall include estimates of the type of costs described in Section 11.4 below. 11.1.2 Unit prices stated in the Contract Documents or subsequently agreed upon multiplied by fmal verified quantities of work performed; 11.1.3 Cost to be detemtined in a manner agreed upon by the parties which includes markups that do not exceed those set forth in Section 11.4 below. 11.1.4 Costs to be determined in the manner described in Section 11.3.1. /I.2 Contract Time Adjustments. 11.2.1. Any extension of the Contract Time must be requested in a Contractor Change Request which complies with all of the requirements of paragraphs 10.4.1 through 10.4.6. Failure to strictly comply with the timing and submittal requirements shall constitute a waiver of any request or claim. 11.2.2. If the Contractor is delayed at any time in the progress of the Work and such delay was caused, in whole or in part, by the act or omission of the City, or by changes ordered in the Work pursuant to strikes, lockouts, fire, unusual delay by common carriers, unavoidable casualties, or any other causes beyond the Contractor's control, then the Contract Time shall be extended by the City. Such extensions will be for a period of time as the City may in its discretion determine, provided however that such delay could not have been avoided by the exercise of due diligence by the Contractor and did not result from the acts or omissions of the Contractor and, provided further, that they Contractor has taken reasonable actions to mitigate or prevent further delays resulting from such causes. 11.2.3. If abnormal weather conditions aze the basis for a claim for an extension of the Contract Time, such claim shall be documented on the City of Aspen Engineering Department's Daily Construction Log Forms substantiating that weather conditions were unusually severe for the period of time, and could not have been reasonably anticipated. Regardless of actual weather conditions, any day in which the Contractor is able to work Sixty Percent (60%1 or more of its scheduled work force shall not be counted as an abnormal weather day for purposes of calculating weather related time extensions. 11.2.4. The Contractor agrees that delays resulting from any causes other than acts or omissions of the City, its employees, agents or officials shall be considered fully compensated by a time extension only and agrees to make no claim for monetary damages for such delays. in no event shall the Contractor be entitled to recover any delay costs " caused by the acts or omissions of the Contractor, its employees or agents. ~... 11.2.5. If the Contractor believes that it has suffered delays in performing the Work that are caused by acts or omissions ~"""+ of the City, the Contractor may subm8 a Contractor Change Request with detailed justifications acceptable to the «. Engineer Failure of the Contractor to comply with all requvements shall consfitute a waiver of any claim for damages resulting from such delays. 11.3 Force Account Work. 11.3.1 In situations where the cost or time for performing a required change cannot be adequately defined or agreed upon but the changed Work must proceed, the City may direct the Contractor to perform the Work on a Force Account basis. Adjustment shall be determined on the basis of reasonable expenditures and savings of those performing the change in the Work including, in case of an increase th the Contract Amount, an allowance for overhead and profit which shall not exceed the allowance described in 11.4.7 below. In such case, the Contractor shall keep and present, in such form as the City may prescribe, an itemized detailed accounting together with appropriate supporting data of all of the costs described in Section 11.4.1 through Section 11.4.4 which clearly distinguishes the cost of changed Work from base contract Work. Information that shall be required on these forms includes an itemization of all costs For labor, materials and equipment rental and total costs to date for force account work. The Contractor shall include hours worked, rates of pay, names andjob classifications for all workers and size, type, identification number, rental rate and hours of operation for equipment. 11.3.2 Unless otherwise provided in the Contract Documents, costs for the purposes of Force Account Work shall be itemized daily on Daily Force Account Forms provided by the Engineer which are signed by the Contractor and the Engineer. Such costs shall Form the basis for determining the maximum amount to be paid the Contactor, but this amount may be reduced where necessary to take into account the cost of base contract Work, Work included th approved Change Orders, Work described in Work Directive Changes, idle time for workers and/or equipment when work could have been performed in other locations or the number of workers or amount of equipment provided exceeds the number or amount requved to perform the Work, unsatisfactory Work or Work which may be performed concurrently with the changed Work and which cannot be easily segregated from the changed Work. The worker hours, equipment hours, and materials installed shall be logged on the City of Aspen Engineering Department's Daily Construction Log fore for every day the work is performed. 11.4 Contract Sum Determination 11.4 In no event shall the charge or credit to the City associated with any change exceed the sum of the following: 11.4.1 Direct Labor. Actual net direct increase or decrease in the cost of the Contractor's labor for all work associated with the change. Contractor's labor shall be limited to Davis-Bacon Act work categories or other labor (including salaried field personnel) that perform the individual change in Work full-trine. For shop work, the direct labor includes workers who work directly on the item being manufactured or operntors of equipment being used to handle items being manufactured. 11.4.2 Labor Burden. Contractor's actual costs for workers compensation and liability insurance, payroll taxes, social security and employees Singe benefits (including employer paid health insurance) imposed on the basis of payrolls. This burden must reflect the variability of some burdens, i.e., social security. The burden shall include all small tools which cost less than $200 apiece. 11.4.3 Direct Material. Supplies. Installed Equipment. Actual net direct cost of materials, supplies and equipment incorporated in or consumed by the Work. If actual costs are not available, the cost shall be the lowest commercially available price including all discounts and rebates and all applicable taxes. Cost shall be based on buying the material, supplies and equipment in the largest prnctical quantity to receive quantity discounts. 1 L4.4 ui ment. Actual net cost to the Contractor of owned and/or rented equipment other than small tools, to be determined using the following method(s): ~+n, (1) Owned equipment opernting costs shall be determined using accepted industry standazd forms and methods for "Owning and Operating Equipment" as described by the U.S. Army Corps of Engineers (COE) in its latest edition of the "Construction Equipment Ownership and Operating Expense Schedule, Region V" (Document No. EP 1110-]-8, Volume 5). (2) Rental equipment costs shall be determined using actual invoiced rates less all discounts for bare equipment rental. Operating costs will be determined based on rates in the above-cited C.O.E. manual. (3) Mobilizafion/demobilization costs will be paid if the equipment is mobilized exclusively for Work described in a change requested by the Engineer or a Change Order If the equipment is used on base contract work, no mobilization or demobilization cost will be paid. Mobilization/demobilization cost will be based on using the least expensive means to mobilize or demobilize. Equipment shall be obtained from the nearest available source. When the least expensive methods are used, then costs shown in the actual invoice will be the basis for pricing. 11.4.5 Bonds Insurance. Permits and Taxes. Actual increases or decreases in the cost of premiums for all bonds and insurance, permit fees, and sales, use or similaz taxes related to the Work. 11.4.6 Subcontract Costs. Net cost of subcontractor work at any tier, provided that the cost of the subcontractor is determined in accordance with the above requirements. When possible, the Contractor shall obtain quotes from two or more subcontractors. 11.4.7 Overhead and Profit. (1) Ten percent (10%) of the sum of Secton 11.4.1 through Section 11.4.5 above, to cover a profit for Work performed by that Contractor or subcontractor. „.,, (2) Two percent (2%) of Section 11.4.6 above to cover Contractors and subcontractor's overhead and profit for work performed by the Contractor or subcontractor. (3) Neither the Contractor nor any subcontractor, nor the City in the case of a credit, will attempt to apply these percentage adjustments in a way which would pyramid either the cost or credit because a subcontractor or subcontractors at any tier are involved. 11.4.8 Totals as Equitable Adjustment. The Contractor agrees that the total of the above constitutes an equitable adjustment for any and all damages resulting from a change or due to delay or disruption caused by the City. The Contractor's choice of idling and Down Time shall not constitute an Crtv's cause for delay or disruption. 11.5 Cost and Pricing Data 11.5.1 Certificate of Current Cost or Pricing Data The Contractor shall submit a Certificate of Current Cost or Pricing Data with any agreed upon Contract Price adjustment, but prior to the execufion of a Change Order for the work, in the following format: Certificate of Current Cost and Pricing Data This is to certify that, to the best of my knowledge and belief, the cost of pricing data submitted in writing to the Ciry in support of _' are accurate, complete, and current as of " and represent the best prices available from suppliers and subcontractors. This certification includes the cost of pricing data sup- porting any advance agreements and forward pricing rate agreements between the offer or and the Ciry that are part of the proposal. Firm Name Title Date "Identify the appropriate number of the Change Notice. ** Date when pricing negotiations were concluded and price agreement was reached. '** Date of signing, which should be as close as practicable to the date when the price negotiations were concluded and price agreement reached. `'~""' 11.5.2 Vendor Statements. The Contractor shall submit in support of all items which are not unit prices or lump sum prices established by the Contract, statements by the affected vendors that the prices are not in excess of those previously charged to the City or the supplier's regulaz commercial customers for the same items. 11.5.3 Price Reductions for Defective Costs or Pricine Data. If it is later determined that pricing adjustments to the Contract were-not correct due to incomplete or inaccurate pricing data by the Conttactor or any subcontractor or supplier or [hat lower prices were readily available, the price shall be reduced accordingly and the Contract modified by a Change Order. 11.6 Variation in Quantify of Unit Priced Items: Where the quantity of aunit-priced item in this Contract is an estimated quantity and the actual quantity of the unit-priced item varies more than 25 ep rcent above or below the estimated quantity, an equitable adjustment in the Contract Price may be made by a written Change approved by the Contractor and the Engineer The equitable adjustment shall be based upon any increase or decrease in cost due solely to the variation above 125 percent or below 75 percent of the estimated quantity. The City at any time after the award of the Contract, may delete Bid items, provided that the total of such deletions does not exceed twenty, rve percent /25%1 of the total Contract Price, and such deletions will not justify an increase in other Bid prices. If the quantity variation is such as to cause an increase in the time necessary for completing the Work the Contractor may request in writing, an extension of time only. ARTICLE 12 -Reserved ARTICLE 13 -WARRANTY AND GUARANTEE; TESTS AND INSPECTIONS; CORRECTION, REMOVAL OR ACCEPTANCE OF DEFECTIVE WORK .... 73.1 Warranty: 13.1.1. The Contractor warrants and guarantees to City that all Work, whether supplied, famished, installed, provided, or performed by Contractor, a Subcontractor, or Supplier, will be in accordance with the Contract Documents and will not be Defective. All Defective Work, whether or not in place, must be rejected, corrected or accepted as provided in this Article 13. Work shall be performed in a skillful and workmanlike manner. Except where longer periods of warranty are indicated for certain items, Contractor warrants Work, whether famished, installed, provided, performed or supplied by Contractor, a Subcontractor or Supplier, to be free from faulty materials and workmanship for a period of not less than One Year from date of Substantial Completion, which One Year period shall be wvered by the Maintenance Bond and Payment Bond as specified in the Contract Documents. Landscaping replacement shall be warranted for two growing seasons. 13.1.2. The Contractor, at no additional expense to the City, shall remedy damage to equipment, the site, or the buildings or the contents thereof that is the result of any failure or defect in the Work, and restore any work damaged in fulfilling the requirements of the Contract Documents. 13.1.3. With respect to all warranties, express or implied, from Subcontractors, manufacturers, or Suppliers for Work performed and materials famished under the Agreement, the Contractor shall: 13.1.3.l.Obtain all warranties that would be given in normal commercial practice. To the extent that the Subcontractor's, manufacturer's, or Supplier's, standard warranty exceeds the minimum City requirements as set forth in this Article or elsewhere in the Contract Documents, the Subcontractor's, manufacturer's, or Supplier's standard warranty shall apply. Otherwise, the Contractor shall be responsible for a Two Year term under the Maintenance Bond. 13.1.3.2. Requve all warranties to be executed, in writing, for the benefit of the City, if directed by the Engineer or. 13.1.3.3. Enforce all warranties for the benefit of the City, if directed by the Engineer. 13.1.3.4. Assign all warranties and guarantces in writing to the City upon the request of the City. 13.1.4. Notwithstanding anything to the contrary above, the Contractor shall warrant that all equipment which are incorporated into the Work or any subsystem shall be new, free from liens and defects in design, have cleaz fide, be free from faulty materials and workmanship, and shall conform in all aspects to the terms of the Contract Documents, to the drawings issued for manufacture by the Contrnctor, and shall be in conformance with the Technical Specifications and Contractor's Proposal (except in those instances where the Contractor's Proposal has been amended by subsequent Technical Specifications). Unless the warranty period is otherwise extended or modified, the following warranty shall apply. If within Five (5 Years from the date each piece of equipment incorporated into the Work or any subsystem is accepted by the Ciry, it appears that the equipment or any part thereof does not conform to the above warranty and guarantee provisions, and the City so notifies the Contractor within a reasonable time after its discovery, the Contractor shall thereupon promptly correct such nonconformity to the satisfaction of the City, at the Contractor's sole expense; failing which the City may reject the item and cover by purchasing substitute items or the City may proceed to make corrections or aceomplish the Contractor's performance by the most expeditious means available, the cost of cover or correction shall be chazged to the Contractor. 13.1.4.1. The preservafion, packaging, packing, and marking, and the preparation for, and method of, shipment of such equipment shall conform with the requirements of the Contract Documents. 13.1.4.2. When return, corrections, or replacement is required, transportation charges and responsibility for the supplies and equipment while in transit shall be borne by the Contractor. _ 13.1.5. ht addition to the foregoing, in the event that any single component in the Work experiences failures during the warazrty period such that the number of failures under nomral service conditions exceeds ten percent (10%) of the Work population of that component, the Contractor shall perform a design defects analysis. If the analysis shows the component design to be defective, the component shall be redesigned, and the entire population of that component shall be replaced and/or retrofitted. 13.1.6. Whenever there is a conflict between the warranties required by the Contract Documents and the warrazrty provided by a Subcontractor, manufacturer or Supplier, the terms and wnditions of the warranty that affords the City the greatest protection shall be binding upon the Contractor. 13.L7. The above warranties or other warranties agreed to by Contractor shall not limit the City's rights under other provisions of this Article with respect to latent defects, gross mistakes, or fraud. 13.1.8. Neither the foregoing nor any provision in the Contract Documents, nor any special guarantee time limit, shall be held to limit the Contractor's liability for defects, to less than the legal limit of liability in accordance with the law of the place of building. 13.1.9. Any supplies or equipment, or parts thereof, corrected or famished in replacement under this Article, shall also be subject to the terms of the womanly provisions herein to the same extent as supplies and equipment initially delivered. The warranty, with respect to supplies, equipment, or parts thereof, shall be equal in duration as if initially delivered and shall run from the date of delivery of the corrected or replaced supply, or upon the date it is placed in service, whichever is later. I3.2 Access to Work: The Engineer and the Engineer's representatives, other representatives of the City, testing agencies and governmental agencies with jurisdictional interests shall have access to the Work, at any time for their observation, inspecting and testing. Contractor shall provide proper and safe conditions for such access. I3.3 Tests and Inspecnons: 13.3.1. The Contractor shall cooperate with material testing persons and firms, and for required inspections, and compliance and approval tests for the Work performed by the Contractor or his/her Subcontractor(s). 13.3.2. If Laws or Regulations of any public body having jurisdiction require any Work (or part thereof) to specifically be inspected, tested or approved, the Contractor shall assume full responsibility therefore, pay all costs in connection therewith and famish the Engineer the required certificates of inspection, testing or approval. The Contractor shall also be responsible for and shall pay all vests in connection with any inspection or Re-testing required in connection with the City's or the Engineer's acceptance of a Supplier of materials or equipment proposed to be incorporated in the Work, or of materials or equipment submitted for approval prior to The Contractor's purchase thereof for incorporation in the Work. The cost of all inspections, testing, re-testing and approvals in addition to the above that are required by the Contract Documents shall be paid by the Contractor (unless otherwise specified). The City will conduct and pay for the conformance tests on materials installed in-place, and the Contractor shall pay for re-tasting of all failing and non- conforming materials thereafter. 13.3.3. All inspections, tests or approvals other than those required by Laws or Regulations of any public body having jurisdiction shall be performed by professional firms or certified materials laboratories acceptable to the Engineer. 13.3.4. If any Work (including the work of others) that is to be inspected, tested or approved is covered without written concurrence of the Engineer, it must, be uncovered for observation. Such uncovering and testing when required by the Engineer shall be at the Contractor's expense. 13.3.5. Neither observations by the Engineer nor inspections, tests or approvals by others shall relieve the Conttactor from the Contractor's obligations to perform the Work in accordance with the Contract Documents. 13.4 Uncovering Work: 13.4. L If any Work is covered wntrary to the written request of the Engineer it must, if requested by the Engineer, be uncovered for the Engineer's observation and replaced at the Contractor's expense. 13.4.2. If the Engineer considers it necessary or advisable that covered Work be observed by the Engineer or inspected or tested by others, the Contractor, at the Engineer's request, shall uncover, expose or otherwise make available for observation, inspection or testing as the Engineer may require, that portion of the Work in question, furnishing all necessary labor, material and equipment. If it is found that such Work is Defective, the Contractor shall bear all direct indirect and consequential costs of such uncovering, exposure, observation, inspection and testing and of satisfactory reconstruction, (including but not limited to fees and charges of engineers, architects, attorneys and other professionals), and the City shall be entitled to an appropriate decrease in the Contract Price. 13.5 City May Stop The Work: If the Work is defective, or the Contractor fails to supply sufficient skilled workers or suitable materials or equipment, or fails to famish or perform the Work in such a way that the completed Work will conform to the Contract Documents, the City may order the Contractor to stop the Work, or any portion thereof, until the cause for such order has been eliminated; however, this right of the City to stop the Work shall not give rise to any duty on the part of the City to exercise this right for the benefit of the Contractor or any other party. 13.6 Correction or Removal of Defective Work: If required by the Engineer or the City, the Contractor shall promptly, as directed, either correct all Defective Work, whether or not fabricated, installed or completed, or, if the Work has been rejected by the Engineer or the City, remove it from the site and replace it with non-defective Work. The Contractor shall bear all direct, indirect and consequential costs of such correction or removal (including but not limited to fees and chazges of engineers, architects, attomeys and other professionals) made necessary thereby. 13.7 Correction Period• If within Two Years after the date of Substantial Completion or such longer period of time as may be prescribed by Laws or Regulations or by the terms of any applicable special guarantee required by the CORUact Documents or by any specific provision of the Contract Documents, any Work is found to be Defective, the Contractor shall promptly without cost to City and in accordance with City's written inshuctions, either correct such Defective Work, or, if it has been rejected by City, remove it from the site and replace it with non-defective Work. If the Contractor does not promptly comply with the terms of such inswctions, or in an emergency where delay would cause serious risk of loss or damage, the City may have the Defective Work corrected or the rejected Work removed and replaced, and all direct, indirect and consequenfial costs of such removal and replacement (including but not limited to fees and chazges of engineers, architects, attomeys and other professionals) will be paid by the Contractor. In special circumstances where a particular item of equipment or portion of Work is placed in continuous service before Substantial Completion of all the Work, the correction period for that item may start to run from an earlier date if so provided in the Specifications or by Written Amendment. Landscaping replacement shall be warranted for two Bowing season. 73.8 Acceptance ojDejective Work: If, instead of requiring correction or removal and replacement of Defective Work, the City prefers to accept it, the City may do so. The Contractor shall bear all direct, ndirect and wnsequenfial costs attributable to the City's evaluation of and determination to accept such Defective Work. All accepted defective Work shall be subject to significant price reduction acceptable to the City and the City Engineer. 13.9 City May Correct Defective Work: If the Contractor fails within Ten t <D) consecutive calendar dam after written notice of the Engineer or the City to -- proceed to correct and to cortect Defective Work or to remove and replace rejected Work as required by the Engineer or ;W the City in accordance with paragraph 13.6., or if the Contractor fails [o perform the Work in accordance with the Contract Documents, or if the Contractor fails to comply with any other provision of the Contract Documents, the City may, after seven days' written notice to the Contractor, correct and remedy any such deficiency. hr exercising the rights .+~ and remedies under this paragraph the City shall proceed expeditiously to the extent necessary to complete corrective and . _. remedial action. The City may exclude the Contractor from all or part of the site, take possession of all or part of the Work, and suspend the Contractors services related thereto, take possession of the Contractor's tools, appliances, construction equipment and machinery at the site and incorporate in the Work all materials and equipment stored at the site or for which the City has paid the Contractor but which are stored elsewhere. The Contractor shall allow the City, the City's representatives, agents and employees such access to the site as may be necessary to enable the City to exercise the rights and remedies under this paragraph. All direct, indirect and consequential costs of the City in exercising such rights and remedies will be charged against the Contractor, and a Change Order will be issued by the City inwrporating the necessary revisions in the Contract Price. Such direct, indirect and consequential costs will include but not be limited to fees and charges of engineers, architects, attorneys and other professionals, all court costs and all costs of repau and replacement of work of others destroyed or damaged by correction, removal or replacement of the Contractor's Defective Work. The Contractor shall not be allowed an extension of the Contrnct Time because of any delay in performance of the Work attributable to the exercise by the City of the City's rights and remedies hereunder. 13.10 Unauthorized Work: Work perforned beyond the lines and grades on the Drawings or approved Design Documents, Construction Documents or Shop Dmwings and extra work done without written authorizatioq will be considered as unauthorized work, and the Contractor will receive no compensation therefore. If requred by the City, unauthorized work will be remedied, removed, or replaced by the Contractor at the Contractor's expense. ARTICLE 14 -PAYMENTS TO CONTRACTOR AND COMPLETION 14./ Determination ojWork Value: The Work quantities recorded on the City of Aspen Engineering DepartmenPs Daily Construction Log forms shall serve as the basis for preparation and justification of the progress paymarts. Payments to the Contractor shall be prepared on the City of Aspen Engineering Departrnent's Progress Pay Estimate Form on account of Unit Price Work based on the number of units actually installed complete in place and transferted from the Daily Construction Logs. 14.2 Application jor Progress Payment: 14.2.1. Progress payments shall be made once each month as the Work progresses, when the Contractor is performing satisfactorily under the terms of the Contract Documents. Said payments shall be based upon progress estimates prepared by the Engineer, of the value of work performed and materials placed in accordance with the Contract Documents and the value of materials on hand in accordance with these General Conditions. The amount of the progress estimate to be paid to the Contractor shall be subject to the following: 14.2.1.1 STANDARD RETAINMENT, The City shall make a deduction from the progress estimate in the amount considered necessary to protect the interests of the City, pursuant to Section 24-91-103, CRS. That amount to be retained shall be as follows: (a) for contract price of less than $50,000 the retained amount shall be 10% of the value of the completed work; (b) for contract price between $50,000 to $1,000,000.00 the retained amount shall be 7% of the value of the completed work; and, (c) for contract price over $ I,OOQ000.00 the retained amount shall be 5% of the value of the completed work. No further retainment shall be withheld if the Contractor makes satisfactory progress in the Contract Work. The amount retained shall be in effect until such time as fmal payment is made, with the following exceptions: a) When one hundred Percent (100%) of the Work has been complete, the Engineer may,at his/her discretion, reduce the retained amount by fifty percent (50%) of the required retainage. b) Upon one hundred percent (100%) completion and acceptance of the project, the Engineer may reduce the retainment to fifty percent of the required retainage. In addition to standard retainment, the City shall withhold funds For claims against the Contractor filed by Subcontractors and Suppliers, pursuant to Section 38-26-107, CRS. 14.2.2. NO PAYMENT. A progress payment shall not be made when the total value of the work done since the last estimate amounts is less than $500.00. 14.2.3. LUMP SUM ITEMS. All lump sum Bid items shall be paid on a pro-mta basis determined by the percentage of the total Work completed or if the Bid item is installed or completed One Hundred Percent (/00%1 in place and accepted by the Engineer. 14.2.4. SUBCONTRACTOR PAYMENTS. In addition to the other requirements regarding subcontracting the Work, the Contractor is responsible for prompt payments to all Subcontractors. As a minimum, the Contractor is responsible for prompt payments to all Subcontractors. As a minimum, the Contractor shall incorporate provisions in all subcontracts to satisfy the following requirements: 14.2.4.1. The Contractor shall make payments to all Subcontractors at least once each month as the Work progresses, when the Subeonhactor is performing satisfactorily under the terms of the Contract Documents between the Contractor and Subcontractor; 14.2.4.2. Payments to Subcontractors shall be based on all moneys due the Subwntractor under the terms of the contract between the Contractor and Subcontractor; The Contractor shall make payments to Subwntractors within 10 days of receipt of the City's payment to the Contractor; Subcontractors and lower tier suboontractors shall make payments to their subcontractors, according to the requirements above and shall make payments within 10 days of receipt of payment from the next higher tier. -,.~. 14.3 Contractor's Warranty oj7Ytie: The Contractor warrants and guarantees that title to all Work, materials and equipment covered by any progress pay estimate approved for Payment, whether incorporated in the Project or not, will pass to the City no later than the time of payment free and clear of all Liens. 14.4 Engineer's Review ojProgress Poyments. 14.4.1. The Engineer's recommendation of any payment requested in an Application for Payment will constitute a representation by the Engineer to the City, based on the Engineer's on-site observations of the Work m progress and on the Engineer's review of the pay estimate forth and the accompanying data and schedules that the Work has progressed to the point indicated; that to the best of the Engineer's knowledge, information and belief, the quality of the Work is in accordance with the Contract Documents (subject to an evaluation of the Work as a functioning whole prior to or upon Substantial Completion, to the results of any subsequent tests called for in the Contract Documents, to a fmal determination of quantities and classifications for Unit Price Work in the Bid Proposal form, and to any other qualifications stated in the recommendation); and that the Contractor is entitled to payment of the amount recommended. However, by recommending any such paymart the Engineer will not thereby be deemed to have represented that exhaustive or continuous on-site inspections have been made to check the quality or the quantity of the Work beyond the responsibilities specifically assigned to the Engineer in the Contract Documents or that there may not be other matters or issues between the parties that might entitle the Contractor to be paid additionally by the City or the City to withhold payment to Contractor. 14.4.2. The Engineer may refuse to recommend the whole or any part of any payment if, in the Enghrcer's opinion, it -- would be incorrect to make such representations to the City. The Engineer may also refuse to recommend any such ,~„ payment, or, because of subsequently discovered evidence or the results of subsequent inspections or tests, nullify any such paymart previously recommended, to such extent as may be necessary in the Engineer's opinion to protect the City from loss because: 14.4.2.1. The Work is Defective, or wmpleted Work has been damaged requiring correction or replacement; 14.4.2.2. The Contract Price has been reduced by Written Amendment or Change Order; 14.4.2.3. The City has been required to correct Defective Work or complete Work in accordance with pazagmph 13.9.; or, 14.4.2.4. Of the Engineer's actual knowledge of the occurrence of any of the events enumerated in Article 15. The City may refuse to make payment of the full amount recommended by the Engineer because claims have been made against the City on account of the Contrador's performance or famishing of the Work or Liens have been filed in connection with the Work or there are other items entitling the City to a set-off against the amount recommended, but the City must give the Contractor immediate written notice (with a copy to the Engineer) stating the reasons for such action. 14.5 Substantial Completion: 14.5.1. The date accepted by the City when the construction of all Work items in the project or a specified part thereof is One hundred~ercem (100%~ completed, in accordance with the Contract Documents; so that the projector specified part can be utilized for the purpose for which it is intended shall establish substantial completion for the project or for a specified part. 14.5.2. When the Contractor considers the entire Work ready for its intended use, the Contractor shall coordinate with the City an inspection of the Work and conduct such tests as required to ensure the Work meets or exceeds all Performance Standards to help determine the status of completion. If the City does not consider the Work satisfactorily complete, the Engineer shall notify the Contractor in writing giving the reasons therefore. There shall be a Punch List of the items m be completed before final inspection and fmal payment At the time of delivery of the completed punch list items, the City must conduct a fmal inspection and upon acceptance by the City, the Contractor shall deliver a fully executed Claim Release form to facilitate the project closure. 14.6 Partial fJtiliyation: Use by the City of any finished part of the Work, which has specifically been identified in the Contmct Documents, or which the City, the Engineer and the Contractor agree constitutes a separately functioning and useable part of the Work that can be used by the City without significant interference with the Contractor's performance of the remainder of the Work, may be accomplished prior to Final Completion of all the Work subject to the following: 14.6.1. The City at any time may request the Contractor in writing to permit the City to use any such part of the Work which the City believes to be ready for its intended use and substantially complete. If the Contractor agrees, the Contractor will certify to the City and the City Engineer that said part of the Work is substantially complete. 14.7 Final /nspections: Upon written notice from the Contractor that the entire Work or an agreed portion thereof is complete, the City will make a final inspection with the Engineer and the Contractor and will notify the Contractor in writing of all particulars in which this inspection reveals that the Work is incomplete or Defective. The Contactor shall immediately take such measures as are necessary to remove and eliminate all such deficiencies. All deficiencies or incomplete Work items shall be recorded by the City Project Inspector on a Punch List Sheet(s) and distributed to the Contractor and the Engineer immediately. 14.8 Final Progress Payment: 14.8.1. After the Contractor has completed all such corrections to the satisfaction of the City and delivered all maintenance and operating instructions, schedules, guarantees, as-built documattation (as provided in paragraph 6.12) and other documents - all as required by the Contract Documents, and after the City has indicated that the Work is acceptable, the Contractor shall deliver to the Engineer a fully executed and notarized Claim Release Form and the City Engineering Department will advertise for project closure and release of the final retainment. The final pay estimate will consist of retainment amount only. Final payment will be released following a thirty (30) day waiting period from the date of the second publication of the advertisement for final settlement and closure if no verified claim has been filed with the City. 14.9 Settlement Date, Notice to Subcanhactors, Acceptance and Final Payment: If, on the basis of the Engineer's observation of the Work during conshuction and final inspection, and the Engineer's review of the final progress Payment and accompanying documentation - all as required by the Contract Documents, the Engineer represents to the City that the Work has been completed and the City is satisfied that the Work has been completed and the Contractor's other obligations under the Contract Documents have been fulfilled, the City shall cause to be published on two (2) consecutive weeks in the weekly editions of the Aspen Trines, a public notice setting a final settlement date; which said settlement date shall be at least ten (10) days after the second publication. Said notice shall advise all persons, co-parhrerships, associations of persons, companies, or corporations that have famished labor, "- provisions, materials, team hire, sustenance, or other supplies used or consumed by Contractor or his subcontractor(s), that they may file a claim with the City, at any time up to and including the time of final settlement. Upon filing of any such claim, the City shall withhold from retainment withheld in accordance with the Contract Documents, to insure the paymetrt of said claims until the same have been paid or such claims as filed have been withdrawn, such payment or withdrawal to be evidenced by filing with City a receipt in full or an order for withdrawal in writing and signed by the person filing such claim or his duly authorized agents or assigns. Such funds shall not be withheld longer than Nine Davs following the date faced for final settlement as published unless an action is commenced within that time to enforce such unpaid claim and a notice of Lis Pendens is filed with the City. At the expiration of such ninety day period, the City shall pay to Contractor such moneys and funds as are not subject of suit and Lis Pendens notices and shall retain thereafter, subject to the final outcome thereof, only such balance of funds to insure the payment of judgments which may result from such suit. 14.8.2. If, the remaining balance to be held by the City for Work not fully completed or corrected is less than the retainage set forth at paragraph 14.2., and if Bonds have been famished as required in Article 5, the written wnsent of the surety to the payment of the balance due for that portion of the Work fully completed and accepted shall be submitted by the Contactor to the Engineer. Such payment shall be made under the terms and conditions governing final payment, except that it shall not constitute a waiver of claims. 14.10 Contractor's Continuing Obligation: The Contractor's obligation to perform and complete the Work in accordance with the Contract Documents shall be absolute. Neither recommendation of any progress or final payment by the Engineer, nor the issuance of a certificate of Substantial Completion, nor any payment by the City to the Contractor under the Contract Documents, nor any act of acceptance by the City nor any failure to do so, nor any review and approval of a Shop Drawing or sample submission, nor the issuance of a notice of acceptability by the Engineer pursuant to paragraph 14.9, nor any correction of Defective ,~ Work by the City will constitute an acceptance of Work not in accordance with the Contract Documents or a release of the Contractor's obligation to perform the Work in accordance with the Contract Documents. ARTICLE 15 - SUSPENSION OF WORK AND TERMINATION IS.l City May Suspend Work: The City may, at any time and without cause, suspend the Work or any portion thereof for a period of not more than ninety days by notice in writing to the Contractor and will fix the date on which work will be resumed. The Contractor shall resume the Work on the date so fixed. The Contractor shall be allowed an increase in the Contract Price or an extension of the Contract Time, or both if the Consecutive Calendar Davs are used to complete the Work ,directly attributable to any suspension if the Contractor makes an approved claim therefor as provided in Article 11. Other Work suspensions such as delayed start or phased consWction shall not enfitle the Contractor to any compensation of payment or time. 15.2 City May Terminate: Upon the occurrence of any one or more of the following events: 15.2.1. If the Contractor commences a voluntary case under any chapter of the Bankruptcy Cade (Title II, United States Code), as now or hereafter in effect, or if Contractor takes any equivalent or similar action by filing a petition or otherwise under any other federal or state law in effect at such time relating to the bankruptcy or insolvency; 15.2.2. If a petition is filed against Contractor under any chapter of the Bankmptcy Code as now or hereafter in effect at the time of filing, or if a petition is filed seeking any such equivalent or similar relief against Contractor under any other federal or state law in effect at the time relating to bankruptcy or insolvency; 15.2.3. If the Contractor makes a general assignment for the benefit of creditors; 15.2.4. If a trustee, receiver, custodian or agent of Contractor is appointed under applicable law or under contract, whose appointment or authority to take chazge of property of Contractor is for the purpose of enforcing a Lien against such property or for the purpose of genernl administration of such property for the benefit of Contractor's creditors; 15.2.5. If the Contractor admits in writing an inability to pay its debts generally as they become due; 15.2.6. If the Contractor persistently fails to perform the Work in accordance with the Contract Documents (including but not limited to, failure to supply sufficient skilled workers or suitable materials or equipment or failure to adhere to the progress schedule established under paragaph 2.9 as revised from time to time); 15.2.7. If the Contractor disregards Laws or Regulations of any public body having jurisdiction; 15.2.8. If the Contractor disregards the authority of Architect; or, 15.2.9. If the Contractor otherwise violates in any substantial way any provisions of the Contract Documents: The City may, after giving the Conttactor (and the surety, if there be one) seven days written notce and to the extent permitted by Laws and Regulations, terminate the services of Contractor, exclude the Contractor from the site and take possession of the Work and of all the Contractor's tools, appliances, construction equipment and machinery at the site and use the same to the full extent they could be used by the Contractor (without liability to the Contractor for trespass or conversion), incorporate in the Work all materials and equipment stored at the site or for which the City has paid the Contractor bubwhich are stored elsewhere, and fmish the Work as the City may deem expedient. In such case the Contractor shall not be entitled to receive any further payment until the Work is fmished. If the unpaid balance of the ,,~ Contract Price exceeds the direct, indirect and consequential costs of completing the Work (including but not limited to ~,,,^ fees and charges of engineers, architects, attorneys and other professionals and court and arbitration costs) such excess will be paid to the Contractor. If such costs exceed such unpaid balance, the Contractor shall pay the difference to the City. Such costs incurred by the City will be approved as to reasonableness by the Engineer and inwrporated in a Change Order, but when exercising any rights or remedies under this paragraph the City shall not be required to obtain the lowest price for the Work performed. 15.2.10. Where the Contractor's services have been so terminated by the City, the termination will not affect any rights or remedies of the City against the Contractor then existing or which may thereafter accrue. Any retention or payment of moneys due the Contractor by the City will not release the Contractor from liability. 15.2.11. Upon seven days' written notice to the Contractor, the City may, without cause and without prejudice to any other right or remedy, elect to abandon the Work and terminate the Contract. In such case, the Contractor shall be paid for all Work executed and any expense sustained plus reasonable termination expenses. 15.3 Contractor May Stop Work or Terminate: If, through no act or fault of the Contractor, the Work is suspended for a period of more than ninety days by the City or under an order of court or other public authority, then the Contractor may, upon seven days written notice to the City and the Engineer, terminate the Contrail and recover from the City payment for all Work executed and installed in place and any expense sustained plus reasonable termination expenses. The provisions of this paragraph shall not relieve the Contractor of the obligations under Article 6 to carry on the Work in accordance with the progress schedule and without delay during disputes and disagreements with the City. ARTICLE 16 -MISCELLANEOUS 16.1 Nondiscrimination During the performance of this Contract, the Contractor agrees as follows: 16.1.1. The Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, age, marital status, sexual orientation, being handicapped, a disadvantaged person, or a disabled or Viet Nam era veteran. The Contractor will take affirmative action to insure that applicants are employed, and that employees are treated during employment without regard to their race, wlor, religion, sex, national origin, sex, age, sexual orientation, handicapped, a disadvantaged person, or a disabled or Viet Nam era veteran. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or re- cruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause. 16.1.2. The Contractor, with regard to the Work performed by i[ during the Contract, shall not discriminate on the grounds of race, color, religion, sex, national origin, sexual orientation, age, marital status, being handicapped, a disadvantaged person, or a disabled or Viet Nam era veteran in the selection and retention of Subcontractors, including procurements of materials and leases of equipment. 16.1.3. The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regazd to race, color, religion, sex, national origin, sexual orientation, age, marital status, being handicapped, a disadvantaged person, or a disabled or V let Nam era veteran. 16.1.4. in all solicitations either by wmpetitive bidding or negotiation made by the Contractor for work to be performed under a subcontract, including procurements of materials or leases of equipment, each potential Subcontractor or Supplier shall be notified by the Contractor of the subcontractor's obligations under this Contract and the regulations relative to nondiscrimination on the grounds of race, color, religion, sex, national origin, sexual orientation, age, marital status, being handicapped, a disadvantaged person, or a disabled or V let Nam em veteran. ,~ 16.1.5. The Contractor will send to each labor union or representative of workers, with which it has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' representatives of the contractor's commitments under this section, and shall post copies of the notice in con- spicuousplaces available to employees and applicants for employment. 16.2 Giving Notrce: Whenever any provision of the Contract Documents requires the giving of written notice, it will be deemed to have been validly given if delivered in person to the individual or to a member of the firm or to an officer of the corporation for whom it is intended, or if delivered at or sent by registered or certified mail, postage prepaid, to the last business address known to the giver of the notice. 16.3 Computation of Time: 16.3.1. When any period of time is referzed to in the Contract Documents by days, it will be computed to exclude the first and include the last day of such period. If the last day of any such period falls on a Saturday or Sunday or on a day made a legal holiday by the law of the applicable jurisdiction, such day will be omitted from the computation. 16.3.2. A consecutive calendar day of twenty-four hours measured from midnight to the next midnight shall constitute a day. A working day is any day ;Monday through Friday of each week, also called business day. 76.4 General.• Should the City or the Contractor suffer injury or damage to person or property because of any error, omission or act of the other party or of any of the other party's employees or agents or others for whose acts the other party is legally liable, claim will be made in writing to the other party within a reasonable time of the fast observance of such injury or damage. The provisions of this paragraph shall not be construed as a substitute for or a waiver of the provisions of any applicable statute of limitations or repose. 16.4.1. The duties and obligations imposed by these General Conditions and the rights and remedies available hereunder ~ to the parties hereto, and, in particulaz but without limitation, the warranties, guarantees and obligations imposed upon the Contractor by the General Conditions, and all of the rights and remedies available to the City thereunder, are in addition """ to, and are not to be construed in any way as a limitation of, any rights and remedies available to any or all of them which are otherwise imposed or available by Laws or Regulations, by special warranty or guarantee or by other provisions of the Contract Documents, and the provisions of this paragraph will be as effective as if repeated specifically in the Contract Documents in connection with each particulaz duty, obligation, right and remedy to which they apply. All representations, warranties and guarantees made in the Contract Documents will survive fmal payment and termination or completion of the Agreement. 76.5 /ndependentContractorStatus: It is expressly acknowledged and understood by the parties that nothing in this agreement shall result th, or be construed as establishing an employment relationship. The Contractor shall be, and shall perform as, an independent the Contractor who agrees to use his best efforts to provide the Work on behalf of the City. No agent, employee, or servant of the Contractor shall be, or shall be deemed to be, the employee, agent or servant of the City. The City is interested only in the results obtained under the Contract Documents. The manner and means of conducting the Work are under the sole control of the Contractor. None of the benefits provided by the City to its employees including, but not limited to, worker's compensation insurance and unemployment insurance, are available from the City to the employees, agents or servants of the Contractor. The Contractor shall be solely and entirely responsible for its acts and for the acts of the Contractor's agents, employees, servants and subcontractors during the perfornance of the Contract. THE CONTRACTOR, AS AN INDEPENDENT CONTRACTOR, SHALL NOT BE ENTITLED TO WORKERS' COMPENSATION BENEFITS AND SHALL BE OBLIGATED TO PAY FEDERAL AND STATE INCOME TAX ON ANY MONEYS EARNED PURSUANT TO THE CONTRACT. IG6 Prohibited /nteresh. /~u. No member, officer, or employee of the City of Aspen, Pitkin County or the Town of Snowmass Village shall have any .„~ interest, direct or indirect, in this Agreement or the proceeds thereof. 16.7 Warranties Against Contingent Fees, Gratuities, Kickbacks and Conflict ojlnterest: The Contractor warrants that no person or selling agency has been employed or retained to solicit or secure this Agreement upon an agreement or understanding for a commission, percentage, brokerage, or contingency fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the Contractor for the purpose of securing business. 16.7.1. The Contractor agrees not to give any employee or former employee of the City a gratuity or any offer of employment in connection with any decision, approval, disapproval, recommendation, preparation of any part of a program requirement or a purchase request, influencing the content of any specification or procurement standard, rendering of advice, investigation, auditing, or in any other advisory capacity in any proceeding or application, request for ruling, determination, claim or controversy, or other particular matter, pertaining to this Contract or to any solicitation or proposal therefor. 16.7.2. It shall be a material breach of the Contract for any payment, gratuity, or offer of employment to be made by or on behalf of a Subcontractor under a contract to the prime Contractor or higher tier Subcontractor or any person associated therewith, as an inducement for the awazd of a Subcontrnct or order. The Contactor is prohibited from inducing, by any means, any person employed under this Contract to give up any part of the compensation to which he/she is otherwise entitled. The Contractor shall comply with all applicable local, state and federal "anti-kickback" statutes or regulations. 16.8 Payments Subject to Annual Appropriations: If the contract awazded extends beyond the calendaz yeaz, nothing herein shall be construed as an obligation by the City beyond any amounts that may be, from time to time, appropriated by the City on an annual basis. It is understood that payment under any contract is conditional upon annual appropriation of funds by said governing body and that before providing services, the Contractor, if it so requests, will be advised as to the status of funds appropriated for services or -° materials and shall not be obligated to provide services or materials for which funds have not been appropriated. IG9 Contractor Acceptance: 16.9.1. The acceptance by the Contractor of any payment made on the fmal completion of Work under these General Conditions, or of any fmal payment due on tem~ination ,shall constitute a full and complete release of the City from any and all claims, demands and causes of action whatsoever which the Contractor, has or may have against the City under the provisions of these Contract Documents. 16.9.2. No action shall be maintained by Contractor, its successors or assigns, against the City or the Engineer on any claims based upon or arising out of this Contract or out of anything done in connection with this Contract unless such action shall be commenced within 180 days after the date approval of the final progress payment hereunder, or within 180 days of the termination of this Agreement. 16.10 Successors and Assigns This Contract and all of the covenants hereof shall inure to the benefit of and be bidding upon the City and the Contractor respectivety and their agents, representatives, employees, successors, assigns and legal representatives. Neither the City nor the Contractor shall have the right to assign, transfer or sublet his or her interest or obligations hereunder without the written consent of the other party. 16.11 Third Parties This Contract does not and shall not be deemed or consWed to confer upon or grant to any third party or parties, except to parties to whom the Contractor of the City may assign this Agreement in accordance with the specific written consent, any rights to claim damages or to bring suit, action or other proceeding against either the City or the Contractor because of any breach hereof or because of any of the terms, covenants, agreements or conditions herein contained. 16.12 Waiver No waiver of default by either party of any terms, covenants or conditions hereof to be performed, kept and observed by the other party shall be construed, or operate as, a waiver of any subsequent default of any of the terms, covenants or conditions herein contained, to be performed, kept and observed by the other party. 16.13 Contract Made in Colorado The Parties agree that this Contract was made in accordance with the laws of the State of Colorado and shall be so consWed. Venue is agreed to be exclusively in the courts of Pitkin County, Colorado. 16.14 Attorney's Fees hr the event that legal action is necessary to enforce any of the provisions of this Contract, the prevailing party shall be ~" entitled to its costs and reasonable attorney's fees. ~^'" 16.15 Waiver ojPresumption This Contract was negotiated and reviewed through the mutual efforts of the parties hereto and the parties agree that no construction shall be made or presumption shall arise for or against either party based on any alleged unequal status of the parties in the negotiation, review or drafting of this Contract. 16.16 Severability Clause: [f any provision of the Contract is subsequently declared by legislative or judicial authority to be unlawful, unenforceable, or not in accordance with applicable laws, statutes, and regulations of the United States of America or the State of Colorado, all other provisions of the Contract shall remain in full force and effect. 1G17 Audi! and Records The Contractor shall maintain all data and records pertinent to the Work performed under this Contract, in accordance with generally accepted accounting principles, and shall preserve and make available all data and records until the expiration of three (3) vears from the date of fmal payment under this Contrail, or for such longer period, if any, as is required by applicable statute or by other articles of the Contract Documents. The authorized representatives of the U.S. Department of Transportation, Comptroller General of the United States, the State of Colorado and the City shall have access to all such data and records for such time period to inspect, audit and make copies thereof during normal business hours. The Contractor covenants and agrees that it shall require that any Subcontractor utilized in the performance of this Agreement shall permit the authorized representatives of the United States Department of Transportation, the State of Colorado, and the City, to similazly inspect and audit all data and records of said Subcontractors relating to the ,~ performance of said Subcontractors under this Agreement for the same time period. l6~18 Audit 16.18.1. COST OR PRICING DATA: If the Contractor has submitted cost or pricing data in connection with the pricing of any modification to the Contract, unless the pricing was based on adequate price competition, established catalog or market prices of commercial items sold in substantial quantities to the general public, or prices set by law or regulation, the Engineer or a representative of the City shall have the right to examine and audit all books, records, documents, and other data of the Contractor (including computations and projections) related to negotiating, pricing or performing the modification, in order to evaluate the accuracy, completeness, and currency of the cost and pricing data. in the case of pricing any modification, the authorized representatives of the U.S. Department of Transportation, and the State of Colorado shall have the same rights. 16.18.2. AVAILABILITY: The Contractor shall make available at its offices at all reasonable times the materials described in the Contrail Documents, for examination, audit, or reproduction, until three (3) years after final payment under the Contract, or for any period, if any, as is requved by applicable statute or by other articles of this Contract. 16.18.3. If this Contract is completely or partially terminated, the records relating to the Work terminated shall be made available for three years after any resulting fmal termination payment. 16.18.4. Records peAaining to appeals under the disputes clause or to litigation or the settlement of claims arising under or relating to the performance of this Contract shall be made available until disposition of such appeals, litigation, or claims. Rev. 1/19/01 (Secs. 14.2.1.1 & 13.1.1) gc1-971 ~. SCHEDULE 0: PAYMENT SCHEDULE AND SCHEDULE OF VALUES The total energy project cost is $1,307,411. Of the total energy project cost, rebates ("Award Payments") calculated for this project equal $93,385; $13,072 of which will be paid directly by the utilities to the City of Aspen. The Award Payment associated with the heat recovery scope of this project, estimated at $80,313, will be paid directly to McKinstry by Source Gas. The Contract Sum due to McKinstry has been reduced by the Source Gas Award Payment to $1,227,098. The City is financing $441,449 using atax-exempt municipal lease purchase agreement and is making a capital contribution of $785,649 to fully fund the contrect amount; $20,000 of which is grant funding. Table 0.1, the "Project Cost Breakout", below separates out the total energy project costs Into the Individual costs, fees, and markups allocated to the various items in the project. 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LL~ LL~ F ~ y LL ~ ~ aB g 3 g~ v < ~ ~ ~ ~~ ' ~ ~ ' ~ y ~ ~~ ~ ' £ ~v e ~` ~ ~ 5 9, ~ ~ g B V1 f ~ @ u~ $ A ~d 3 8 $ 3 c~ ~ qQp ~ X L ~ 6 A 0~°' ~ ~3 gQ d e ~ e ammo ~ fi§ d ~ y 7 > g O G ~ ,~ ~ a 2ZZt Wd~ A ~J rI 4R ~ R ~°w w ~ .^. S r n ~.. .. S n t g 0 M U4 a d 7 _d d L N s C A d 7 d t N O >. U d c ~. O V T L U fn o `~ ,'° ~; ...- a V m y 9 N C V C C O ~i pj d 'g a c~ ~. L d ~ d N ~ fq a E 5 ~ d N 7 .~ $ avi o t Q ~ N N O C C F .~ .C~ C ~. ~ ~ .~ ' O C YV10 16 d N w ? Y ~ 9 titwr t C V N a ~ ,~ ~ s _~~ ~ pj ~ d d y"j aL+ •C C YI C V d IYyC C d ~ d ~~ Y d 'C O O Ada ~ N ya'~ V YI A N '- ~ yp m c c ~ .v 'm~a L acv ° m a a „ c t r ~ ..F M c p d d d E "<.. a ~u E F V O d d Z C m v M O a 0 a` M 0 d a F ~ 8 Y9 8 H ~ N n 0 VV .-~ .y .r i N n ~ ~ ~ n n O N ~ n $ ~ N y ( O b ~`: ~ N N S b ro x w rn N M x o M n x N M x x ~i a o M K w N ~ p ^ x ~ x N YA . + ' V X atl a O ,p S 'y $ N $g iJ m m om. M ~ ~ m ~i ~ N ~ ~ a e n O N ~ N a N N +R ~ » w . Ox » p y ~ Yi p N H ~ w x K x w ~ ~ iR H m H N y ~ E ~ ~ N ~ ~ M ~ ~ m N N V m f gyp N ~mO ^ p~ p^~ ,m^ ` .N' H I~p~ Ilf a M ~ N f ~ f N ~M } Y x M ~pp ~ N y y pJJ p N 1~ x .Y x ~ I 1 M x M ~ ~ 1. M 1~ N LL y~ x x x x x x x N ~p ~ O M I(f ~ O imp ~np ~ ~ ti n I~ y fry Vf ~ ~ y fry It01 ePi VpI o N ppm~ ~ b P ~ 0 O^ 1 s b O l!1 O b if N N .y V ryj p ~ q M '~ A n x K K p H K w w w w x w ~ x x xx K w x x Nx N O ~ e Q~ 5 01 N n pp '~ '~ N pnp po N n ~ N T l+l $ roy ~ ~ ~ mm N ~ yyqq N ~ N ~ ` ' W m 'y x N ao M n x P x n m' x O x vl x n ri x Q v x P H n ~i O x O x A x ~ m x r M ti n x ~ P ~ N C 3 x x x S T Ni N b H a N ~O V m ~ Ni O Y y m M ` O ~ i~l ~ ~ 1~ N M ~ O O . W ~ Ni rl . i M n b ~ N N K N N .ni ^~ p ug m 0` N W .e~l MN x x x x x x N N x . M x x x y~ K x x p e l O. ri a A a 's ~ ~ ~ E ~ w ~ ~ E ~ c ~ ~ 0 c ~ ~ ~ E d J pyi M ~ ~ l V N q q q q ; a ~ $ 8 ~, S a E E E s 3 6 E ' yp m C a C rn C rn C rn C rn C rn C a C rn C rn C a C rn C g a C E g E q E a o z y LL ~+ p A L- G t D L D t D L 'AL 'D L D L D L > D L J 'A L > A L ~ 4 y Yy C 4 ll ~ ST L~ X U Y O'j 3 q OI G ~ {~' q :> j ~ 7 7 7 > > JJ > a K t o 3 a a ~ E 3 c $ Y E 3 b m q ~ ~ ~ ~ s N ~n s q g ~S .~ a k' ~ g A r m 2 ' ~ fi °° ~ a g a ~ a 3 € °°= i ~ a ~ o ~ a ~ c ~ ~ c m q 4 T ~ p tt~~ 1 c2 y y~ °~ Y ~ Vg 6 6 H ~u 6 i~ ° 3 ~' 3 ~ w N ~n a u n a m o w N w a o w n w ~ . . . + .+ y P~ P~ N N e'~ t~ t~ of 1V ff 1~ 1V eV M b N ~ IN~1 ~ p a p a N w 0 NM a d 0 d v t ~~ n c m d d t ~i'. c w E ~a~ c a0 o 'O r ~~ U Vl The project costs, schedule of values, and proposed payment schedule shown above are made a part "" of the Agreement between the CONTRACTOR and AGENCY dated January 12, 2010. w CITY OF ASPEN MCKINSTRY ESSENTION INC. ,~ l~f~~~ ~ ~~^~i ~~zala Signa ure Signatur < <~ Printed ame 50~~~ ~laaav Printed me ~~ ~-~:~~ Title 17i reCf~ r o f f-i /~2 KC~2 Title City of Aspen, CO Page 5 of 5 Schedule 0: Payment Schedule and Schedule of Values SCHEDULE P: PRE-IXISTING SERVICE AGREEMENTS The CITY does not have any pre-existing service agreements that are applicable to this CONTRACT. City of Aspen, Colorado Schedule P: Pre-Existing Service Agreements Page 1 of 1 SCHEDULE Q: "' CURRENT AND KNOWN CAPITAL PROJECTS AT FACWTY The CITY has contrected Resource Engineering Group to perform a Re-Commissioning study at the Aspen Rec Center for various systems throughout the facility. There are other capital projects underway throughout the CITY facilities but none that are applicable to this CONTRACT. ~,. City of Aspen, Colorado Page 1 of 1 Schedule Q: Current and Known Capital Projects at Facility ~~ U K O W w °' J ~5 pU U 2 y LL p W K a } n ~ ~ g n P a ~V f N ~ ~ N ~ ~ M ~ ~ ~ ~ Sa P S ~~ ~ » a 3 ~ $ ~ ~ » x ~ ~ ~ ~ ~ .. P » ~ ~ ~ <„ x 91 a $ ~'~ # a g ~ ~ x ~ ^ „ ~ ~ x x ~ tt fR ~ o ° M a m ~ ~ ~ M j' ~ ~ 4a j 6 ~ N1 M b~ p ~ ~ m ~ ~ < ~ a ~ ~ s ~ ~ ~ ~ ~ ~ ~ a a ~ x & » x ~ - » x ~ ^ M P ~~ ~ N S : N 's ~ ~ " « ~ S. « .i ~ n ts . 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O O O O O r: m` N ~ • f+l O (•f V W V ~ ri a O~ W ' ~ ~ N •"~ 111 000 ~ N O N ~ •-• W m ~ ri m ~ b ~ ^ M N ~yO~ o C V Y j • N ~ N W N 1 ~1 ~ O I ~f ~ N .y O O O V 1 ~ G N ~ ~ Vql a ^ t p O H > > 01 C a E c E •~ b ~ a g w '~ ~ 'moo '~ a ~ ~ q (p ' C x y c W ~ V' w ~ LL ~ s ~ v W ~ g a Y Yi .. € ~ a ° o ~ v4 a Y € ~ ~ _ g a ~ ~ ~ a H ~ y N w e L a r ~ ~ $ ~ ~ @ ~ € c ~ ~ E g ~ a a rn a rn rn m a rn rn rn rn ~ 'q-' tt' d o ~ °c ~ E f q = c fl L C D L C i7 L c "r L c C L c F L c F L C L c L t C D L c C L C 'P L Tj' f T r W ~ ~ 0 y O 3 Q• U P OI T 7 Of 7 T 7 Q ~ U 7 OI > OI > Ot 7 C $ c c a ~ . q n C. o > E ' ~ ' " ~ E E a $ _ b $~ ~ ~ ~ ~ _ U ++ N 3 j ~ N N M g V 1~ CR a H ~ M N N O N N N N M N N 1H PI N N N fV N 1`1 N N V N 1+1 b N N M V V N f I tV w O N d b0 a v C a ~~ U IA m .~ C m c d U Q c d a~ ~ o•'"'+ c $,. R "" o ~ ro°b a ~ ~ ~ R `o ~ N M o ~ a v ~ m ~ c m m d c ~ c > N V '~ Y YI O R ~' C " ~ v m ~ o U ~ ~ c ~ £ a i y Q OBI ~ c ~'~ o ~ ~ v g y ~ a i w n a 'o • .: o g v o a c ~ o > >. ' 3 O m C v ;°, d '~ °~ w y y y Y T p a 'v 'v m n ~ E £ "- M ~ ? o n la N ¢ c n v •' c m v m y ~ N UO C N C N T N ~ O N 7 - N IN~ yN~ l6 ~ 7 Y« N C Y« H 5 ~ n aai ~ ~ m ~ '^ m ~° L° a o ~r c m c d t. wl t , ~ ,cc ~... R o 0 c m v ~ o N . ~ v 1~J r~ `o v m a ~ V~ N Y 'F F W ~ ~ _ M Ip ~ ~ L ~ 'ti ~ C C 3 ~ c "~ .. o F a ~ C v v u~ w E ~ 10~ Z`m o ~ ° o.a Y ' ~~ ~ r T.l ~y Q O U "' y d~~ `y y ~ u ~ V y ?~ c ~' Y1 W_ ~ W d w . t O ~~ ~ m m a~ v t m n~" o 0 2 ~. d yl N c I I r+ R O i ~ L L N C V ~ ~ ooa n l o f .... •o ~' o 0 ~ a 1~ c l Of90) I m am N c ~ ~~ or~a ~a0 I ~+ I as I I ~ O M ~N mp7N.~~IM 2Q N~ N?Q d v .a O GO c VNO Tr 00 te.-iaWrL°v<0 ~ o vi m en o u~ w nq w w lp ~o ai ri v ~ ~ v c m ~ c o ~ £ 't ;; m d a ~ m c O ~ ~ ~ m~ c F - 3 a~ .. ° Ev~'j'ic~c g~ ¢ g~o°~° c UII ~ ~ ~ ~ y M O~ V C ~ ~ . c p y~ c cQ ~U~~y ~'i o o , 1/1 a V Q' ~ c ~ o ~ ~ ~ LL Y u ~i ~0 U w d YI ° Y c ~° ~~ c a d~ m a~ r. ~ a c4 ~ci f°-LLiiu'Swcovl ~ v `~/ o d ~L U~ M K W a o N m ~' rn 1f1 .n. m m ~ ^ v Q ~ p N $ INif T ~ n N N N N K N K K v `-~ v Vf N n ~ p ~ m m N rv ~ ^y ~ I~ m b $, a ~ N ~ N n n N m ~ m ry N M v v v K M p ~ ~ H '1 .~i 'I ~ ~ M i"1 ~ O N N h0f ti m ~ "'~ l K emi b b M b MH! n m m r N N ~ ~ ~ v « ~ m nNi ~ e m < N ~ ~ n ~ O ~ O '~ b N ~ m M V N ° W v W v v ~ W NV' m rv p g v ~ .°. n I(f ~ v N ~ C O °~ w N m u ~o V u~i v m w .c w ~ w " K < w .y C C pN T p T n b N 1"1 V M ~ N m p~ N f~1 M d a (0 N W N h ~ ~ m b p P m i 1 a ~ ., a Y a, A O C V n m °o O m °o n o ~ in n v ~ m v o ^' a °a n w ~ k w 3 O~ ~ '~' ~' ~ "' "' O ~ (V LL 9 M v M m O~ ~ O~ .~'. N ~ b rn VI ~ m '^ p m rv b~ ~ M p O ~O ~ N b y j` n U ~ 'p M w .'^.. .M. v' ~ K w «' L 6 P Ip~l T M I(f m'1 lyll T Rp P m^ ~ M O n ry N N 9 ~ N w p w w i w w N o Y w ~ w .. ... V +* C "' ~ ~ n N rn O m N ~ ^ n a O M p i O N ~ ~ V n m N w V wV w w ~ ~ w w 1~ m N N ~-~ aM{ Vf m Vf b O Vf M ~ ~ 1!1 0+ O~ m b M k ~ H of M of k O v Iti v O v X 1 O N N n w N b o n N h N m O m ~ O .~ N b O O ~ N N ~ ~~pp N O N 1~ VF w N N ~ v ~ . i 1~ O b N m O tO ~ ~ W ~ W I!f m` M w N m T M b M N ~ p V ti .Ni w K .~.. ~ k ~ x » w ~ .. ~ ~ ~ ~ 8 ~ M ~ M ~ ~ D ; w n ~ n T311 RN E E ~ Y Yl ~' C LL ~ w $ 3 w d ° ° ~ ~ EE °Y° c~ ~ ~' ~~ ~ ~ ~g o o ~ ~ g ° ~ y i ~ ~ e e ~ ~ .~ a „~ _ g ° d o a F O a a p C CR C a .~ d d 'o c d yn~ Q I~R F~ CU U! ACORD, CERTIFICATE OF LIABILITY INSURANCE OP ID MA DATE IMMIDDnvrYl MCKIN-1 12/30/09 PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE Hub International Northwest HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR P . O . Hox 3016 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. thell WA 98041-3018 Tone: 425-469-9500 Fax:925-489-4501 INSURERS AFFORDING COVERAGE INAIC# INSURED encan inea ace co. 16~ 5.35 INSURERA z vci, Am NI suRERa Steadfast Ins Co __ McKins t_ry Essention, Znc. INSURER C. __ _ _ _ _ _ PO Box 24567 INSUftea D: Seattle WA 98129-0567 ---- -- INSURER E. VV VtKAGtJ THE POLICIEB OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR TIIC POLICY PERIOD INDICATED. NpTVJITHS]ANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WIT H RESPECT TO WMICH THIS CERTIFICATE MAV BE ISSUED OR MAV PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS. E%CLUSIONS AND CONpITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWM MAV HAVE BEEN REDUCED BY PAID CLAIMS. p'^_"' _ _~ LTR INSRtl TYPE OF INSURANCE POLICY NUMBER CY EFFECTIV~POLICV EXPIRq NI _ --- ~~ PATE IMMIDD/YY DATE MMIOOIYY LIMITS GENERAL LIABILITY EACH OCCURRENCE ' 5 2, OOO , OOO A X'. coMMeRCwL CENERAL11AealTV CPO-3999903 I 01/31/09 -DAMAGETO O1/31/SO PREMISES (Ea "cwn:nce~ _ '5300,000 ~ _-. _ GLAIMB MADE i~ OCCUR 1 ~ ~~ MED EXP (Any one person) ~ b 1 O , OOO i I ~ ~ PERSONAL S ADV INJURY ' 5 2 , OOO , OOO ~ i ,GENERAL AGGREGATE b 4 , OOO , OOO NL AGGREGATE LIMIT APPLIES PER'. '~, PRODUCTS-COMPIOP AGG 54,000,000 '' ~ POLICY j ' jECOT 'I LOC '~ I ' A AUTOMOBILE LIABILItt '~ ~anly AUro CPO-3999903 ~ ~, 01/31/09 ~ 01/31/10 I COMBINED SINGLE LIMB (Ee e"menp ~-~ I $ 1 , OOO , OOO _-- _ ALL OWNED AUTO$ ', i. BODLLY INJ $ (Per person) SCHEDULED AUTO$ J I ~~-- _ ~ ~~- ~~~ i HIRED AUTOS NON-O WNED AUTOS ~i EODILY INJURY (Pe~eC4itlenlf ~ 5 ~~ - PERTV DAMAGE ~ (Per accitlent) $ GARAGE LIABILITY j AUTO ONLY ~ FA ACCIDENT ~' S 'i ~ ANV AUTO OTHER THAN EA ACC 5 AUTO ONLY: qGG E E%CEBSIUMBRELLq LIABILITY I I G.CH OCCURRENCE '~ S OCCUR J CLAIMS MAO[ AGGREGATE _ 5 5 ~i DEDUnTIBLE i I ' b_ RETENTION 5 j ~ b WORKERS COMPENBATION ANO ~ X~ITpRY LIMITSi ER I '. EMPLOYERS'LIABILITY I p ' '. WC3999907 10/01/09 10/O1/10 e.L EACH ACCIDENT _ s 1000000 ANY PROPRIETORIPARTNERIEXECIf/IVE OFFICERIMEMBERE%CLUDED9 N/A TO ADD INSURED '~ ---- -- EL DISEASE-EH EMPLOVEN S SOOOOOO Il yes describe untlel SPECIAL PROVISIONS belmr E. L. DISEASE-POLICY LIMIT 51000000 i OTHER B PROF*/POLL LIAR EOC-5347541-01 01/31/09' 01/31/10 1,000,000 OCC *N/A TO ADD ZNS I 2,000,000 AGG DESCRIPTION OF OPERATIONS I LOCgTIONb l VEHICLES I EXCLUSIONS ADDED BY ENDORSEMENT I SPECIAL PROVISIONS ADDITIONAL INSURED (S) AS REQUIRED BY WRITTEN CONTRACT SUEJECT TO POLICY TERMS, CONDITIONS, LIMITATIONS 6 ATTACHED ADDITIONAL INSURED ENDORSE.: THE CITY OF ASPEN, S THE CITY OF ASPEN'S OFFICERS & EMPLOYEES. COVERAGE AFFORDED IS PRIMARY 5 NON-CONTRIBUTORY; WAIVER OF SUBROGATION APPLIES AS ATTACHED. ALL OPERATIONS 6 LOCATIONS FOR THE CITY OF ASPEN ESPC. MCK C20016 CERTIFICATE HOLDER CArvutLLA I luN THEC IAS SHOOED ANV OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 3O DAYB WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL THE CITY DF ASPEN IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR 130 S GALENA ST, 2ND FLOOR ASPEN CO 81611 REPRESENTgnvss_ __~-. © ACORD CORPORATION 1968 .- r.. Additional Insured - Automatic - Ovs~ners, Lessees Or Contractors Zt~R1CH Poacy No. Exp. Date of Pol. Ett. Date of End. Agency Ro. AddL Prem. Return Prem. CP03949903-0 01/31/10 01/31/09 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. Named Insured: Address (including ZIP Code): This endorsement modifies insurance provided under the: Commercial General Liablliq~ Coverage Part A. Section [I - Who k An Insured is amended to include as an insured any person or organization who you are re- quired to add as an additional insured on this policy under a written contract or written agreement. B. The insurance provided to [he additional insured person or organization applies only to 'bodily injury', "property damage" or "personal and advertising injury" covered under SECTION I - Coverage A -Bodily Injury And Property Damage Liability and Sectioa I - Coverage B -Personal And Advertisitg Lyury Liability, but only with respect to liability for 'bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by: 1. Your acts or omissions; or 2. The acts or omissions of those acting on your behalf; and resulting duectly from: a. Your ongoing operations performed for the additional insured, which is the subjeil of the written con- tract or written agreement; or 6. "Your work" completed as included in the "products-completed operations hazard", performed for the additional insured, which is the subject of the written contract or written agreement. C. However, regardless of the provisions of paragraphs A. and B. above: r. We will not extend any insurance coverage to any additional insured person or organization: a. That is not provided to you in [his poliq; or b. That is any broader coverage than you aze required to provide to the additional insured person or or- ganization in the written contract or written agreement; and 2. We will not provide Limits of Insurance to any additional insured person or organization [hat exceed the lower of: a. The Limits of Insurance provided to you in this policy; or b. The Limits of Insurance you are required [o provide in the written contrail or written agreement. Lmludes cop~rghted material of Insurantt Sen~ices Of~cq InG, with its permission. Pa~„e 1 of 2 NOENT COPY ,.- D. The insurance provided to the additional insured person or organization does not apply to: "Bodily injury", "property damage" or "persona] and advertising injury" arising out of the rendering or failure to render any professional architectural, engineering or surveying services including: .. 1. The preparing, approving or failing to prepare or approve maps, shop drawings, opinions, reports, surveys, field orders, change orders or drawings and specifications; and 2. Supervisory, inspection, architectural or engineering activities. E. The additional insured must see tort that: ]. We are notified as soon as practicable of as "occurrence" or offense iha[ may result in a claim; 2. We receive written notice of a claim or "suit" as soon as practicable; and 3. A request for defense and indemnity of the claim or "suit" will promptly fie brought against any policy issued by another insurer under which the additional insured may be an insured in any capacity. This provision does ao[ apply to insurance on which [he additional insured is a Named Insured, iF [he written contraU or written agreement requires Cha[ this coverage be primary and non-contributory. F. For the coverage provided by this endorsement: 1. The following paragraph is added to Paragraph 4.a. of the Other Insurance Condition of Section IV - Commercial Genera[ Liability Conditions: This insurance is primary insurance as respects our coverage to [he additional insured person or organiza- [ion, where the written contract or written agreement requires [ha[ [his insurance be primary and non- ,,,., contributory. ]n that event, we will not seek contribution from an}' other insurance policy available to the additional insured on which the additional insured person or organization is a Named Insured. 2. The following patagaph is added to Paragraph 4.6. of the Other Insurance Condition of Section IV - Commercinl General Liability' Conditions: This in~wance is excess over: Any of the other insurance, whether primary, excess, contingent or on any other basis, available to an addi- tional insured, in which the additional insured on our policy is also covered as an additional insured by at- tachment of an endorsement to another policy providing coverage for the same "occurrence", claim or "suit". This provision does not apply [o any policy in which the additional insured is a Named Insured on such other policy and where our policy is required by written contract or written agreement to provide coverage to the additional insured on a primary and non-contributory basis. G. This endorsement does no[ apply to an additional insured which Las been added to this policy by an endorse- ment showing the additional insured in a Schedule of additional insureds, and which endorsement applies spe- ~cally to that identified additional insured. Any provisions in this Coverage Part not changed by the terms and conditions of this endorsement continue to apply as written. Inrludes cop~ri~hted material of Insurance Services Office, tnc., nitd iG permission. ti-GL1175 Q Cw (3/20071 Pase 2 of 2 Ari'-_M CO~t' - SCHEDULES: -~- CERTIFICATE OF INSURANCE To be provided after contract execution. City of Aspen, Colorado Page 1 of 1 Schedule S: Certificate of Insurance SCHEDULE T: BOND COVERAGE CLARIFICATION Contractor shall furnish performance and payment Bonds, each in an amount equal to the Construction Cost (Schedule R -Protect Financial Performance). The Bonds shall cover completion of the physical work per the approved design, and shall not guarantee or warranty efficiency or system performance. The Bonds shall not cover any obligation of the contractor to ensure that the work as constructed will result in any particular level of energy savings. Any suit on the Bonds must be brought within the period of one (1) year after substantial completion as defined in the contract; provided, however, that if this suit limitation is void or prohibited by law, the minimum period of limitation available to sureties as a defense in the jurisdiction of the suit shall be applicable. CONTRACTOR shall also furnish a retention bond in Ifeu of retainage held on respective monthly invoices. CUSTOMER NAME: C~ of Asnen Colorado ATTACHMENT FOR THE SPECIFIC CONTRACT TITLED: Ciri of Asoen EnerHV Performance Contract dated Notielnber 1i. 2009 By. ~f /~"~'..~~ ~~1eul ~-'(cu ~ Printed Name: Title: "' ~ r- ""'p`c~ ~'-~" Date: ~~ ~~ 1(~ City of Aspen, Colorado Page 1 of 1 Schedule T: Bond Coverage Clarification APPENDIX A: LEASE AGREEMENTS AND DOCUMENTS To be Included after lease contract has been signed. r..- APPENDIX B: .._ RFP FOR CONTRACTOR SOLICITATION City of Aspen REQUEST FOR PROPOSALS Sealed proposals will be received at the City of Aspen Purchasing Office, 130 South Galena Street, Aspen, Colorado unti12:00p.m., May 15, 2008, at which time the proposals will be opened and reviewed, for the following City of Aspen project: Professional Services for Energy Audits of City Facilities The project will include, but is not limited to: identify opportunities for cost and energy savings via infiastructure, energy efficiency, and controls improvements on the City of Aspen owned and operated facilities. Complete Proposal Packages are available to download from the Purchasing website at httn://www.aspenpitkin.com/depts/54/rfp and bid.cfin A pre-proposal conference will be held at City of Aspen Water Plant, 500 Doolittle Drive, Aspen, CO, at 9 a.m. on May 6 and May 7, 2008. Attendance at the two-day, pre-proposal conference is mandatory unless prior authorization is given by the City's Project Coordinator. The City reserves the right to reject any or all Proposals or accept what is, in its judgment, the Proposal which is in the City's best interest. The City further reserves the right, in the best interests of the City, to waive any technical defects or irregularities in any and all Proposals submitted. The Proposal must be placed in an envelope securely sealed therein and labeled: "Proposal for Professional Services for Energy Audits of City Facilities". Discussion may be conducted with responsible Offerors who submit Proposals determined to be reasonably susceptible of being selected for award for purpose of classification to assure full understanding of, and responsiveness to the solicitation requirements. In addition to price, the criteria set forth in the Instruction to Offerors and any specific criteria listed below, may be considered in judging which Proposal is in the best interests of the City. BY ORDER OF THE CITY OF ASPEN, COLORADO Rebecca Hodgson Request for Proposal For Professional Services for Energy Audits of City of Aspen Facilities Purpose of Request The City of Aspen is seeking proposals from qualified vendors to provide professional services to identify opportunities for cost and energy savings in city-owned facilities through the evaluation of infrastructure, use of energy efficiency technologies, and overall control and management improvements. Project Description and Goals The intent of the project is to conduct complete energy audits of the following City facilities: Aspen City Hall Electric Switch Station Golf Facilities Housing Office Ice Garden Parking Department Police Department Rio Grande Building and Plaza Rio Grande Parking Garage Streets Department Water Department Wheeler Opera House (Historic Building) The main goals of this project are to achieve the following: • Reduce greenhouse gas emissions through the use of a number of processes, including, but not limited to, environmental stewardship, implementation of energy efficiency technology within each of the city facilities, and provide site management and control recommendations for additional energy efficiency and carbon reduction. • Upgrade city facilities to reflect the city of Aspen's 2005 adoption of the Canary Initiative and its commitment to reduce carbon emissions and global warming. Background The City of Aspen has a long history of green power production. In 1885, Aspen became the first city in the United States, west of the Mississippi, to light streets and businesses with hydroelectric power. Then, in 1887, Aspen became the first mining district in North America to electrify underground mining equipment. These firsts made Aspen a world leader in hydroelectric and mining technologies. Aspen's environmental leadership has continued to present day. The city of Aspen Electric department currently obtains approximately 75 percent of its purchased power from clean, renewable hydroelectric and wind power. The breakdown of the city's current renewable sources is as follows: 31 percent is from local hydroelectric sources; 28 percent is from wind farms; and, 16 percent is part of our contracts for non-carbon energy through the Western Area Power Authority and the Municipal Energy Agency of Nebraska. Besides the continued increase in Aspen's renewable purchase power percentages, in 2000 the Aspen and Pitkin County Building departments worked with Aspen City Council utilizing legislation advocated by CORE (Community Office for Resource Efficiency), and created REMP, the "Renewable Energy Mitigation Program." REMP is the world's stiffest tax on energy use. The REMP tax requires owners of new homes larger than 5,000 square feet to pay fees of up to $100,000 for excess energy use. The more energy these new homes use, the more tax they pay, and the more the county and working class families benefit with rebates and grants for altemative energy systems from solar and wind. Homeowners who want to avoid the highest carbon tax in the world, have the option of installing their own altemative energy systems to offset their energy use. In 2005, the city of Aspen adopted the Canary Initiative, which identifies Aspen and other mountain communities as the "canary in the coal mine." The goal of this Initiative was to aggressively reduce Aspen's carbon footprint to protect our community's future and to contribute to global reduction of global warming pollution. In 2007, Aspen City Council adopted the Canary Initiative Action Plan which outlines the steps Aspen can take to achieve necessary reductions in its carbon emissions and to meet the global warming challenge. Scope of Work The audit shall include, but is not limited to: infrastructure systems; energy systems; operations; lighting; and, controls. The goal of this project is to identify opportunities for cost and energy savings in the city facilities outlined above. Bidders shall submit a report for each city facility, which details their findings and recommendations. Each of these reports must include the facility's current status from an energy efficiency standpoint, as well as provide a complete, detailed list of methods, both technology-based and management-based, for the facility to conserve energy and reduce, or eliminate, its carbon footprint. A two-day, pre-proposal meeting has been scheduled for May 6th and May 7`h both starting at 9 a.m. Bidders must be present each day. Bidders will have the opportunity to walk through each city facility over the course of two days and ask questions at that time. Walk through for listed city facilities will be scheduled as follows: May 6 -Aspen City Hall (Historic Building); Housing Office; Parking Department; Police Department; Rio Grande Building and Plaza; and, Rio Grande Parking Garage. May 7 -Wheeler Opera House (Historic Building); Ice Garden; Golf Facilities; Streets Department; Water Department; and, Electric Switch Station. It is essential to attend the pre-proposal meeting both days so as to have a full understanding of this Scope of Work. Proaosal Submittal The City of Aspen's Instructions to Offerors and the Professional Services Agreement is included in this packet. Qualified firms should review the contract before submitting a proposal. This is the contract the selected firm will be expected to sign. Qualified firms shall submit the following information in format outlined below. Failure to do so may result in disqualification. Section 1 Introduce the firm, members' resumes, and the team to be assigned to this project. Section 2 Provide information on similar energy audits the firm has conducted in the past two years. Provide a sample audit report. Section 3 Explain the firm's auditing procedures, what it includes, and the firm's approach to this project. Section 4 Costs Section 5 References Bid Submittal Offerors must include four (4) copies of the Proposals in a sealed envelope clearly marked "Proposal for Professional Services for Energy Audits of City Facilities." If using Federal Express, UPS, or another carrier, Proposals must be placed in a sealed envelope and clearly marked as stated above before it goes into the carriers box/envelope. Proposals are due on or before 2:00 p.m., May 15, 2008 at the City of Aspen Purchasing department, 130 South Galena Street, Aspen, Colorado 81611. The City will not accept late or faxed proposals. Questions and Answers All questions must be submitted in writing via email to rebeccah(rDci.asoen.co.us (preferred) or faxed to 970-920-5119. Q & A's will be posted on the Purchasing website. Firms are responsible to check the website frequently for amendments, Q & A's, and other important information. The Question and Answer period will expire on May 12, 2008. Evaluation Criteria The following criteria shall be used in judging proposals. • Firm and Team members' experience and successes - 35 • Availability to perform the work within the City's timeframe - 20 • Firm's ability to align itself with the City of Aspen belief and goal of being an environmental leader in the fields of carbon reduction through a number of processes including, but not limited to, The Canary Initiative, environmental stewardship, energy efficiency in building, site management, and green building design - 25 • Costs - 20 • Total Score 100 The City reserves the right to reject any or all Proposals or accept what is, in its judgment, the Proposal which is in the City's best interest. The City further reserves the right, in the best interests of the City, to waive any technical defects or irregularities in any and all Proposals submitted. ~.. Discussion may be conducted with responsible Offerors who submit Proposals determined to be reasonably susceptible of being selected for award for purpose of classification to assure full understanding of, and responsiveness to, the solicitation requirements. Timeline Pre-Proposal Meeting May 6 and 7, 2008 Proposals Due May 15, 2008 Award Notification May 22, 2008 Contract Due May 29, 2008 Council Approval June 23, 2008 Notice to Proceed June 24, 2008 The City reserves the right to modify the timeline as necessary. .~ THE CITY OF ASPEN INSTRUCTIONS TO OFFERORS OF PROFESSIONAL SERVICES The City of Aspen has advertised to invite Professionals to submit sealed Proposals as more fully described in the Request for Proposals. The following instructions have been prepazed to assist Offerors in the preparation of their Proposals. These instructions may be altered by the City whenever it is deemed necessary in the best interests of the City. 2. The Contract Documents for this project shall consist of the following documents: A. Request for Proposals (Public Notice and Letters to Potential Offerors). B. Instmctions to Offerors. C. Addenda, if any. D. Proposal submitted by Offeror. E. Proposal Bond Forms, if any. F. Qualification Form, if any. G. Notice of Awazd. H. Agreement. I. Scope of Work, if not set forth in the Request for Proposals. J. Notice to Proceed. Information contained in the Contract Documents, as completed during the contract awazd process, shall be the basis for the Proposals, and nothing shall be deemed to change or supplement this basis except for written revisions to the above documents issued by the City of Aspen. 4. The City of Aspen reserves the right to reject any or all Proposals or accept what is, in its judgment, the best Proposal. The City further reserves the right, in the best interests of the City, to waive any technical defects or irregularities in any and all Proposals submitted, and to negotiate contract terms with the Successful Offeror, and the right to disregazd all nonconforming, nonresponsive or conditional Proposals. Discrepancies between words and figures will be resolved in favor of words. Discrepancies between the indicated sum of any column of figures and the correct sum thereof will be resolved in favor of the correct sum. The cost of proposal preparation shall be home solely by the persons or entities submitting proposals. 6. The following procedures or steps shall be followed after the issuance or publication of Request for Proposals: A. Reference is made to the Request for Proposals to determine if a pre- Proposal conference will be scheduled, and if so, where and when. If a pre- ~.. Proposal conference is scheduled, attendance at the pre-Proposal conference is mandatory unless prior authorization is given by the City. The costs of attendance at apre-Proposal conference shall be borne entirely by the Offeror. B. Reference is made to the Request for Proposals to determine how complete Proposal Packages may be obtained. C. Before submitting a Proposal, each Offeror must (a) examine the Contract Documents thoroughly, (b) visit the site, if any, to familiarize her/himself with local conditions that may in any manner affect cost, progress or performance of the Work, (c) familiarize her/himself with federal, state and local laws, ordinances, rules and regulations that may in any manner affect costs, progress or performance of the Work; (d) familiarize her/himself with the unique weather conditions of the City of Aspen and surrounding area that may affect costs, progress or performance of Work; and (e) study and cazefully correlate Offeror's observations with the Contract Documents. D. Reference is made to the Request for Proposals for the identification of those reports of investigations and tests of subsurface and latent physical conditions at the site or otherwise affecting cost, progress or performance of the Work which have been relied upon by the City of Aspen or a consultant in preparing any Drawings or Specifications. These reports aze not guazanteed as to accuracy or completeness, nor aze they part of the Contract Documents. Before submitting her/his Proposal each Offeror will, at her/his own expense, make such additional investigations and tests as the Offeror may deem necessary to determine her/his Proposal for performance of the Work in accordance with the time, price and other terms and conditions of the Contract Documents. E. Reference is made to the Request for Proposals to detemrine the place, date, and time for delivering sealed Proposals for this project. F. Proposals shall be submitted at the time and place indicated in the Request for Proposals and shall be included in an opaque sealed envelope, marked with the Project title and name and address of the Offeror and accompanied by the Proposal Security referenced below and other required documents. If the Proposal is sent through the mail or other delivery system the sealed envelope shall be enclosed in a separate envelope with the notation "PROPOSAL ENCLOSED" on the face thereof. Proposals submitted by facsimile machine (FA}~ shall not be accepted or considered. G. Reference is made to the Request for Proposals to determine if Proposal Security shall be required for this project. If a Proposal Security is required then each proposal must be accompanied by Proposal Security made payable to the City of Aspen, in an amount of five percent (5%) of the maximum Proposal price and in the form of a certified or bank check or a Proposal Bond (on form attached, if a form is prescribed) issued by a Surety. The Proposal Security of the Successful Offeror will be retained until such Offeror has executed the Agreement and furnished the required Payment and Performance Bonds, if any are required by the Supplemental General Conditions, whereupon it will be returned; if the Successful Offeror fails to execute and deliver the Agreement and famish the require Performance and Payment Bonds, if any aze required, within fifteen (15) days of the Notice of Award, the City of Aspen may annul the Notice of Awazd and the Proposal Security of that Offeror shall be forfeited. The Proposal Security of any Offeror whom the City of Aspen believes to have a chance of receiving the awazd may be retained by the City of Aspen until the earlier of the seventh day after the "effective date of the Agrcement" (which term is defined in the General Conditions) or the sixty first (61) day after the Proposal opening. Proposal Security of other Offerors will be returned within seven (7) days of the Proposal opening. H. Reference is made to the Request for Proposals for any Proposal Forms that may be required to be completed as part of the Proposal. Proposal Forms, if any are required, must be completed in ink or by a printer/typewriter. The Proposal price must be stated in words and numerals; in case of a conflict, words will take precedence. Proposals by corporations must be executed in the corporate name by the president or avice-president (or other corporate officer accompanied by evidence of authority to sign) and the corporate seal must be affixed and attested by the secretary or an assistant secretary. The corporate address and state of incorporation shall be shown below the signature. Proposals by partnerships must be executed in the partnership named and signed by a partner, whose title must appeaz under the signature and the official address of the partnership must be shown below the signature. I. Proposals may be modified or withdrawn by an appropriate document duly executed (in the manner that a Proposal must be executed) and delivered to the place where Proposals are to be submitted at any time prior to the opening of Proposals. If, within twenty four (24) hours after Proposals are opened, any Offeror files a duly signed written notice with the City of Aspen and promptly thereafter demonstrates to the reasonable satisfaction of the City of Aspen that there was a material and substantial mistake in the prepazation of her/his Proposal, that the Offeror may withdraw her/his Proposal and the Proposal Security will be returned. Thereafter that Offeror shall be disqualified from submitting a Proposal. J. At the place, date and time fixed for opening Proposals, all Proposals received prior to that time shall be opened and reviewed. All Proposals shall remain open for a period of thirty (30) days, but the City may, in its sole discretion, release any Proposal and return the Proposal Security prior to that date. K. The City shall then evaluate each Proposal in the best interests of the City of Aspen. The proposals shall be evaluated to determine which aze the most advantageous to the City of Aspen taking into consideration price, the evaluation factors set forth at Section 3-14(t) of the Aspen Municipal Code, and any factors set forth in the Request for Proposals. L. Prior to accepting a Proposal, the City may decide to interview one or more Offerors to negotiate final contract terms for inclusion in the Agreement. M. To demonstrate qualifications to perform the Work, each Offeror must be prepared to submit within five (5) days of a request, financial data, previous experience or evidence of authority to conduct business in the state of Colorado N. Upon determining the successful Offeror, the City of Aspen shall send to the Successful Offeror a Notice of Awazd notifying the recipient of the City's acceptance of the Offeror's Proposal, subject to the City Manager or City Council approval of the Contract Documents. The Notice of Award shall also forward to the presumptive Successful Offeror three (3) unexecuted copies of the Agreement with instructions to execute and return the same to the City within ten (10) days or risk having their Proposal declared abandoned. If the proposed Agreement shall be for an amount in excess of $25,000.00, the City Council at its next regulazly scheduled meeting following receipt by the City of the duly executed copies of the Agreement shall be asked to consider approval of the Agreement and authorize the Mayor of the City of Aspen to execute the same. If the proposed Agreement shall be in an amount equal to or less than $25,000.00 the City Manager shall be asked to consider approval of the Agreement by executing the same. O. Upon receipt of all documents required by the Notice of Awazd and upon approval of the Agreement by the City Council or City Manager, the Successful Offeror shall be sent a Notice to Proceed along with a copy of the Agreement duly executed by the City Manager or Mayor of the City of Aspen. 7. All purchases of supplies, construction or building materials shall not include Federal Excise Taxes or Colorado State or local sales or use taxes. The City of Aspen's State of Colorado tax identification number is 98-04557. The City of Aspen's Federal Tax Identification Number is 84-6000563. 9 •~- 8. There are specific indemnity and insurance requirements which the Successful Offeror must comply with prior to the start of Work for this project. These requirements are set forth in detail in the Agreement. 9. The submission of a Proposal will constitute an incontrovertible representation by the Offeror that he has complied with every requirement of these instructions and that the Contract Documents are sufficient in scope and detail to indicate and convey understanding of all terms and conditions for performance of the Work. 10. Reference is made to the Request for Proposals for the identity of the City of Aspen's project manager(s) who will coordinate all aspects of the selection process. All questions about the meaning or intent of the Contract Documents shall be submitted to the project manager(s) in writing. Replies will be issued by Addenda mailed or delivered to all parties recorded by the project manager(s) as having received a Proposal Package. Questions received less than ten (10) days prior to the date of Proposal openings may not be answered. Only questions answered by formal written Addenda will be binding. Oral and other interpretations or clarifications will be without legal effect. 11. By submitting a Proposal, Professional certifies and represents that at this time: (i) Professional shall confirm the employment eligibility of all employees who are newly hired for employment in the United States; and (ii) Professional has participated or attempted to participate in the Basic Pilot Program in order to verify that it does not employ illegal aliens. 1PW-saved:7/13/07-M:\city\cityatty\cofrtract\prof ser\ib-981.doc 10 AGREEMENT FOR PROFESSIONAL SERVICES This Agreement made and entered on the date hereinafter stated, between the CITY OF ASPEN, Colorado, ("City") and , ("Professional"). For and in consideration of the mutual covenants contained herein, the parties agree as follows: Scope of Work. Professional shall perform in a competent and professional manner the Scope of Work as set forth at Exhibit "A" attached hereto and by this reference incorporated herein. Completion. Professional shall commence work immediately upon receipt of a written Notice to Proceed from the City and complete all phases of the Scope of Work as expeditiously as is consistent with professional skill and caze and the orderly progress of the Work in a timely manner. The parties anticipate that all work pursuant to this agreement shall be completed no later than .Upon request of the City, Professional shall submit, for the City's approval, a schedule for the performance of Professional's services which shall be adjusted as required as the project proceeds, and which shall include allowances for periods of time required by the City's project engineer for review and approval of submissions and for approvals of authorities having jurisdiction over the project. This schedule, when approved by the City, shall not, except for reasonable cause, be exceeded by the Professional. Payment. In consideration of the work performed, City shall pay Professional on a time and expense basis for all work performed. The hourly rates for work performed by Professional shall not exceed those hourly rates set forth at Exhibit "B" appended hereto. Except as otherwise mutually agreed to by the parties the payments made to Professional shall not initially exceed $0.00 . Professional shall submit, in timely fashion, invoices for work performed. The City shall review such invoices and, if they are considered incorrect or untimely, the City shall review the matter with Professional within ten days from receipt of the Professional's bill. Non-Assignability. Both parties recognize that this contract is one for personal services and cannot be transferred, assigned, or sublet by either party without prior written consent of the other. Sub-Contracting, if authorized, shall not relieve the Professional of any of the responsibilities or obligations under this agreement. Professional shall be and remain solely responsible to the City for the acts, errors, omissions or neglect of any subcontractors officers, agents and employees, each of whom shall, for this purpose be deemed to be an agent or employee of the Professional to the extent of the subcontract. The City shall not be obligated to pay or be liable for payment of any sums due which may be due to any sub-contractor. Temunation. The Professional or the City may terminate this Agreement, without specifying the reason therefore, by giving notice, in writing, addressed to the other party, specifying the effective date of the termination. No fees shall be earned after the effective date of the '°' termination. Upon any termination, all finished or unfinished documents, data, studies, surveys, ri drawings, maps, models, photographs, reports or other material prepared by the Professional pursuant to this Agreement shall become the property of the City. Notwithstanding the above, Professional shall not be relieved of any liability to the City for damages sustained by the City by virtue of any breach of this Agreement by the Professional, and the Ciry may withhold any payments to the Professional for the purposes of set-off until such time as the exact amount of damages due the City from the Professional may be determined. Covenant Against Contingent Fees. The Professional warrants that s/he has not employed or retained any company or person, other than a bona fide employee working for the Professional, to solicit or secure this contract, that s/he has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gifts or any other consideration contingent upon or resulting from the awazd or making of this contract. Independent Contractor Status. It is expressly acknowledged and understood by the parties that nothing contained in this agreement shall result in, or be construed as establishing an employment relationship. Professional shall be, and shall perform as, an independent Contractor who agrees to use his or her best efforts to provide the said services on behalf of the City. No agent, employee, or servant of Professional shall be, or shall be deemed to be, the employee, agent or servant of the City. City is interested only in the results obtained under this contract. The manner and means of conducting the work are under the sole control of Professional. None of the benefits provided by City to its employees including, but not limited to, workers' compensation insurance and unemployment insurance, aze available from City to the employees, agents or servants of Professional. Professional shall be solely and entirely responsible for its acts and for the acts of Professional's agents, employees, servants and subcontractors during the performance of this contract. Professional shall indemnify City against all liability and loss in connection with, and shall assume full responsibility for payment of all federal, state and local taxes or contributions imposed or required under unemployment insurance, social security and income tax law, with respect to Professional and/or Professional's employees engaged in the performance of the services agreed to herein. Indemnification. Professional agrees to indemnify and hold harmless the City, its officers, employees, insurers, and self-insurance pool, from and against all liability, claims, and demands, on account of injury, loss, or damage, including without limitation claims arising from bodily injury, personal injury, sickness, disease, death, property loss or damage, or any other loss of any kind whatsoever, which arise out of or aze in any manner connected with this contract, if such injury, loss, or damage is caused in whole or in part by, or is claimed to be caused in whole or in part by, the act, omission, error, professional error, mistake, negligence, or other fault of the Professional, any subcontractor of the Professional, or any officer, employee, representative, or agent of the Professional or of any subcontractor of the Professional, or which azises out of any workmen's compensation claim of any employee of the Professional or of any employee of any subcontractor of the Professional. The Professional agrees to investigate, handle, respond to, and to provide defense for and defend against, any such liability, claims or demands at the sole expense of the Professional, or at the option of the City, agrees to pay the City or reimburse the City for the defense costs incurred by the City in connection with, any such liability, claims, or demands. If it is determined by the final judgment of a court of competent jurisdiction that such injury, loss, or is damage was caused in whole or in part by the act, omission, or other fault of the City, its officers, or ~~ its employees, the City shall reimburse the Professional for the portion of the judgment attributable to such act, omission, or other fault of the City, its officers, or employees. Professional's Insurance. (a) Professional agrees to procure and maintain, at its own expense, a policy or policies of insurance sufficient to insure against all liability, claims, demands, and other obligations assumed by the Professional pursuant to Section 8 above. Such insurance shall be in addition to any other insurance requirements imposed by this contract or by law. The Professional shall not be relieved of any liability, claims, demands, or other obligations assumed pursuant to Section 8 above by reason of its failure to procure or maintain insurance, or by reason of its failure to procure or maintain insurance in sufficient amounts, duration, or types. (b) Professional shall procure and maintain, and shall cause any subcontractor of the Professional to procure and maintain, the minimum insurance coverages listed below. Such coverages shall be procured and maintained with forms and insurance acceptable to the City. All coverages shall be continuously maintained to cover all liability, claims, demands, and other obligations assumed by the Professional pursuant to Section 8 above. In the case of any claims- made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. (i) Workers' Compensation insurance to cover obligations imposed by applicable laws for any employee engaged in the performance of work under this contract, and Employers' Liability insurance with minimum limits of FIVE HUNDRED THOUSAND ,,,,. DOLLARS ($500,000.00) for each accident, FIVE II[JNDRED THOUSAND DOLLARS ($500,000.00) disease - policy limit, and FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) disease -each employee. Evidence of qualified self-insured status may be substituted for the Workers' Compensation requirements of this pazagraph. (ii) Commercial General Liability insurance with minimum combined single limits of ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate. The policy shall be applicable to all premises and operations. The policy shall include coverage for bodily injury, broad form property damage (including completed operations), personal injury (including coverage for contractual and employee acts), blanket contractual, independent contractors, products, and completed operations. The policy shall contain a severability of interests provision. (iii) Comprehensive Automobile Liability insurance with minimum combined single limits for bodily injury and property damage of not less than ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,OOQ00- 0.00) aggregate with respect to each Professional's owned, hired and non-owned vehicles assigned to or used in performance of the Scope of Work. The policy shall contain a severability of interests provision. If the Professional has no owned automobiles, the requirements of this Section shall be met by each employee of the Professional providing services to the City under this contract. 13 (iv) Professional Liability insurance with the minimum limits of ONE MILLION DOLLARS ($1,000,000) each claim and ONE MILLION DOLLARS ($1,000,000) aggregate. (c) The policy or policies required above shall be endorsed to include the City and the City's officers and employees as additional insureds. Every policy required above shall be primary insur- ance, and any insurance carried by the City, its officers or employees, or cazried by or provided through any insurance pool of the City, shall be excess and not contributory insurance to that provided by Professional. No additional insured endorsement to the policy required above shall contain any exclusion for bodily injury or property damage arising from completed operations. The Professional shall be solely responsible for any deductible losses under any policy required above. (d) The certificate of insurance provided by the City shall be completed by the Professional's insurance agent as evidence that policies providing the required coverages, condi- tions, and minimum limits aze in full force and effect, and shall be reviewed and approved by the City prior to commencement of the contract. No other form of certificate shall be used. The certifi- cate shall identify this contract and shall provide that the coverages afforded under the policies shall not be canceled, terminated or materially changed until at least thirty (30) days prior written notice has been given to the City. (e) Failure on the part of the Professional to procure or maintain policies providing the required coverages, conditions, and minimum limits shall constitute a material breach of contract upon which City may immediately terminate this contract, or at its discretion City may procure or renew any such policy or any extended reporting period thereto and may pay any and all premiums in connection therewith, and all monies so paid by City shall be repaid by Professional to City upon demand, or City may offset the cost of the premiums against monies due to Professional from City. (t) City reserves the right to request and receive a certified copy of any policy and any endorsement thereto. (g) The parties hereto understand and agree that City is relying on, and does not waive or intend to waive by any provision of this contract, the monetary limitations (presently $150,000.00 per person and $600,000 per occurrence) or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, Section 24-10-101 et seg., C.R.S., as from time to time amended, or otherwise available to City, its officers, or its employees. City's Insurance. The parties hereto understand that the City is a member of the Colorado Intergovernmental Risk Sharing Agency (CIRSA) and as such participates in the CIRSA Property/Casualty Pool. Copies of the CIRSA policies and manual are kept at the City of Aspen Finance Department and are available to Professional for inspection during normal business hours. City makes no representations whatsoever with respect to specific coverages offered by CIRSA. City shall provide Professional reasonable notice of any changes in its membership or participation in CIRSA. ra Completeness of Agreement. It is expressly agreed that this agreement contains the ••• entire undertaking of the parties relevant to the subject matter thereof and there are no verbal or written representations, agreements, warranties or promises pertaining to the project matter thereof not expressly incorporated in this writing. Notice. Any written notices as called for herein may be hand delivered to the respective persons and/or addresses listed below or mailed by certified mail return receipt requested, to: City: City Manager City of Aspen 130 South Galena Street Aspen, Colorado 81611 ProfessionaL• Street Address City, State & Zip Code Non-Discrimination. No discrimination because of race, color, creed, sex, marital status, affectional or sexual orientation, family responsibility, national origin, ancestry, handicap, or religion shall be made in the employment of persons to perform services under this contract. Professional agrees to meet all of the requirements of City's municipal code, Section 13-98, pertaining to non-discrimination in employment. Waiver. The waiver by the City of any term, covenant, or condition hereof shall not operate as a waiver of any subsequent breach of the same or any other term. No term, covenant, or >.. condition of this Agreement can be waived except by the written consent of the City, and forbearance or indulgence by the City in any regazd whatsoever shall not constitute a waiver of any term, covenant, or condition to be performed by Professional to which the same may apply and, until complete performance by Professional of said term, covenant or condition, the City shall be entitled to invoke any remedy available to it under this Agreement or by law despite any such forbeazance or indulgence. Execution of Agreement by City. This agreement shall be binding upon all parties hereto and their respective heirs, executors, administrators, successors, and assigns. Notwith- standing anything to the contrary contained herein, this agreement shall not be binding upon the City unless duly executed by the Mayor of the City of Aspen (or a duly authorized official in his absence) following a Motion or Resolution of the Council of the City of Aspen authorizing the Mayor (or a duly authorized official in his absence) to execute the same. 16. Illegal Aliens -CRS 8-17.5-101 & 24-76.5-101. a. Purpose. During the 2006 Colorado legislative session, the Legislature passed House Bills 06-1343 (subsequently amended by HB 07-1073) and 06-1023 that added new statutes relating to the employment of and contracting with illegal aliens. These new laws prohibit all state agencies and political subdivisions, including the City of Aspen, from knowingly hiring an illegal alien to perform work under a contract, or to knowingly contract with a subcontractor who knowingly hires with an illegal alien to perform work is under the contract. The new laws also require that all contracts for services include certain specific language as set forth in the statutes. The following terms and conditions have been designed to comply with the requirements of this new law. b. Definitions. The following terms are defined in the new law and by this reference aze incorporated herein and in any contract for services entered into with the City of Aspen. "Basic Pilot Program" means the basic pilot employment verification program created in Public Law 208, 104th Congress, as amended, and expanded in Public Law 156, 108th Congress, as amended, that is administered by the United States Department of Homeland Security. "Public Contract for Services" means this Agreement. "Services" means the furnishing of labor, time, or effort by a Contractor or a subcontractor not involving the delivery of a specific end product other than reports that are merely incidental to the required performance. c. By signing this document, Professional certifies and represents that at this time: (i) Professional shall confirm the employment eligibility of all employees who are newly hired for employment in the United States; and (ii) Professional has participated or attempted to participate in the Basic Pilot Program in order to verify that new employees are not employ illegal aliens. d. Professional hereby confirms that: (i) Professional shall not knowingly employ or contract new employees without confirming the employment eligibility of all such employees hired for employment in the United States under the Public Contract for Services. (ii) Professional shall not enter into a contract with a subcontractor that fails to confirm to the Professional that the subcontractor shall not knowingly hire new employees without confirming their employment eligibility for employment in the United States under the Public Contract for Services. (iii) Professional has verified or has attempted to verify through participation in the Federal Basic Pilot Program that Professional does not employ any new employees who aze not eligible for employment in the United States; and if Professional has not been accepted into the Federal Basic Pilot Program prior to entering into the Public Contract for Services, Professional shall forthwith apply to participate in the Federal Basic Pilot Program and shall in writing verify such application within five (5) days of the date of the Public Contract. Professional 16 shall continue to apply to participate in the Federal Basic Pilot Program and shall a.. in writing verify same every three (3) calendaz months thereafter, until Professional is accepted or the public contract for services has been completed, whichever is eazlier. The requirements of this section shall not be required or effective if the Federal Basic Pilot Program is discontinued. (iv) Professional shall not use the Basic Pilot Program procedures to undertake pre-employment screening of job applicants while the Public Contract for Services is being performed. (v) If Professional obtains actual knowledge that a subcontractor performing work under the Public Contract for Services knowingly employs or contracts with a new employee who is an illegal alien, Professional shall: (1) Notify such subcontractor and the City of Aspen within three days that Professional has actual knowledge that the subcontractor has newly employed or contracted with an illegal alien; and (2) Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to this section the subcontractor does not cease employing or contracting with the new employee who is an illegal alien; except that Professional shall not terminate the Public Contract for Services with the subcontractor if during such three days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. (vi) Professional shall comply with any reasonable request by the Colorado Department of Labor and Employment made in the course of an investigation that the Colorado Department of Labor and Employment undertakes or is undertaking pursuant to the authority established in Subsection 8-17.5-102 (5), C.R.S. (vii) If Professional violates any provision of the Public Contract for Services pertaining to the duties imposed by Subsection 8-17.5-102, C.R.S. the City of Aspen may terminate the Public Contract for Services. If the Public Contract for Services is so terminated, Contractor shall be liable for actual and consequential damages to the City of Aspen arising out of Professional's violation of Subsection 8-17.5-102, C.R.S. (ix) If Professional operates as a sole proprietor, Professional hereby swears or affirms under penalty of perjury that the Professional (1) is a citizen of the United States or otherwise lawfully present in the United States pursuant to federal law,(2) shall comply with the provisions of CRS 24-76.5-101 et seq., and (3) shall produce one of the forms of identification required by CRS 24-76.5-103 prior to the effective date of this Agreement. r~ 17. General Terms. (a) It is agreed that neither this agreement nor any of its terms, provisions, conditions, representations or covenants can be modified, changed, terminated or amended, waived, superseded or extended except by appropriate written instrument fully executed by the parties. (b) If any of the provisions of this agreement shall be held invalid, illegal or unenforceable it shall not affect or impair the validity, legality or enforceability of any other provision. (c) The parties acknowledge and understand that there aze no conditions or limitations to this understanding except those as contained herein at the time of the execution hereof and that after execution no alteration, change or modification shall be made except upon a writing signed by the parties. (d) This agreement shall be governed by the laws of the State of Colorado as from time to time in effect. IN WITNESS WHEREOF, the parties hereto have executed, or caused to be executed by their duly authorized officials, this Agreement in three copies each of which shall be deemed an original on the date hereinafter written. ~. [SIGNATURES ON FOLLOWING PAGE] is ATTESTED BY: CITY OF ASPEN, COLORADO: By: Title: Date: PROFESSIONAL: WITNESSED BY: By: Title: Date: 19 EXHIBIT "A" to Professional Services Agreement Scope of Work (To be completed prior to execution of Agreement) ao EXHIBIT "B" to Professional Services Agreement Rate Schedule (To be completed prior to execution of Agreement) ~... ai APPENDIX C: CONTRACTOR PROPOSAL The Technical Energy Audit Report/Energy Performance Contract Proposal is produced under separate cover. ,.~.~ Appendix D: Lighting Room-by-Room Scope of Work ~~ - ~~ 8 8 6 °p p : p 8 ° ° °' ° R R A :7 77 7 :77: 777 7 7. . .. 7 . .7 . 77 7 7 7 77 7 7 7 7 7 7 'Y 'Y 'Y'Y 'Y: : : : : : : ^ :'Y. 'Y . . . ~ : : : :7: 7 'Y 'Y'Y : ~ : : : : : : : 7'77'Y 'Y : :: : ::: : 7 7'Y 7 'Y. ~. . yy ~~yy~~ SS ;;eegg 38 ~. yy~~ XX SSX°. S 3SS S ;;ee SS xx S ;;ee SS ~ xx S xx ~.B ~ ;;ee S~ s~ee S xx Y S S8 xx 8 ~. ~ xx 3 xx 8 xx 3 ~ ~ ;;ee ~. 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EXHIBIT II: LABOR AND MATERIAL PAYMENT BOND To be provided after execution of this contract. ,., EXHIBIT III (i): NOTICE OF ACCEPTANCE TECHNICAL ENERGY AUDIT AND MONITORING AND VERIFICATION PLAN Date of Notice: Notice is hereby given that the City of Aspen accepts the Final Technical Energy Audit and Protect Development Proposal by Contractor, dated November 12, 2009, as contemplated in Section 2 of the Technical Energy Audit and Project Proposal Contract. City of Aspen, Coloredo ey Date When completely executed, this form is to be sent by certified mail to the Contractor by the City of Aspen. ,.. ~~.,, EXHIBIT III (ii): NOTICE OF SUBSTANTIAL COMPLETION Date of Notice Notice is hereby given that the City of Aspen accepts the installed equipment and establishes a monitoring period start date of City o en Colora/do' / 1 O Date When completely executed, this form is to be sent by certified mail to the Contractor by the City of Aspen. EXHIBIT IV: EQUIPMENT WARRANTIES Specific equipment warranties are to be Included in the Operations and Maintenance Manuals. The following warranty information is provided as the general warranty for types of equipment to be installed. FlM 2.0 - LlghUng Upgrades Manufacturer warrants lamps to be free from defects In material and workmanship for a period of three years. Manufacturer warrants ballasts to be free from defects in material and workmanship for a period of five years. All other products are warrented to be free from defects in material and workmanship for a period of one year. FlM 3.0 -Vending Mkers Manufacturer warrants equipment to be free from defects In material and workmanship for a period of one year. FlM 6.1 end 19.2 -Programmable Thermostats Manufacturer warrents equipment to be free from defects in material and workmanship for a period of one year. FlM 49.1- Install VFD on Pool Circulation Pumps Manufacturer warrants equipment to be free from defects in material and workmanship for a period of one year. FlM 511- Waste Heat Recovery System Manufacturer warrants equipment to be free from defects in material and workmanship for a period of one year. EXHIBIT V: . = MINORITY AND WOMEN-0WNED BUSINESS ENTERPRISES Not applicable to this contrect. IXHIBIT VI: CERTIFICATION THAT LIFETIME OF EQUIPMENT IXCEEDS FINANCING TERM McKinstry certifies that the cost weighted average lifetime of the equipment installed for this contract exceeds the financing, based on the calculations shown in the table below. Cost Weighted Equipment Service Lff e FIM # FIM Name Cost Service Life [Years] Cost Weighted Service Life 2.0-ALL Lighting $ 196,346 15 2.3 3.0-ALL Vending Misers $ 1,321 10 0.0 6.1-ARG Programmable Thermostats $ 544 15 0.0 19.2-ARB Programmable Thermostats $ 2,177 15 0.0 21.1-AYB RCx Automation System $ 18,179 N/A N/A 35.1-WiP Custom low profile tank covers $ 554,688 50 21.2 46.1-AST Upgrade Windows $ 52,368 15 0.6 49.1-ARC VFDs on Pool Pumps $ 95,058 15 1.1 51.1-ARC Waste Heat Recovery for Pool H $ 386,730 20 5.9 Total $ 1,307,411 31.1 For this project, the maximum allowable finance period is 31 years.