Loading...
HomeMy WebLinkAbout520763 AMBIENT ENERGY - CONTRACT - RFP - 7497 BUILDING ENERGY MODELING SERVICESPROFESSIONAL SERVICES AGREEMENT WORK ORDER TYPE THIS AGREEMENT made and entered into the day and year set forth below by and between THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City" and AMBIENT ENERGY, hereinafter referred to as "Professional'. WITNESSETH: In consideration of the mutual covenants and obligations herein expressed, it is agreed by and between the parties hereto as follows: 1. Scope of Services. The Professional agrees to provide services in accordance with any project Work Orders for 7497 Building Energy Modeling Services, issued by the City. A blank sample of a work order and overall scope of services are attached hereto as Exhibit "A", consisting of two (2) pages and is incorporated herein by this reference. The City reserves the right to independently bid any project rather than issuing a Work Order to the Professional for the same pursuant to this Agreement. 2. The Work Schedule. The services to be performed pursuant to this Agreement shall be performed in accordance with the Work Schedule stated on each Work Order. 3. Time of Commencement and Completion of Services. The services to be performed pursuant to this Agreement shall be initiated as specified on each Work Order. Time is of the essence. Any extensions of any time limit must be agreed upon in writing by the parties hereto. 4. Contract Period. This Agreement shall commence May 15, 2013, and shall continue in full force and effect until May 14, 2014, unless sooner terminated as herein provided. In addition, at the option of the City, the Agreement may be extended for additional one year periods not to exceed four (4) additional one year periods. Renewals and pricing changes shall be negotiated by and agreed to by both parties. The Denver Boulder Greeley CPIU published by the Colorado State Planning and Budget Office will be used as a guide. Professional Services Agreement — Work Order Type 7497 Building Energy Modeling Services Page 1 of 21 2013 AMBIENT ENERGY WAGE RATE SCHEDULE EXHIBIT B COMPENSATION 00 00 o0 0 0 ambient energy 000DImmpaR• collaborate. Innovate. ,00 0 0 0 Principal $ 175 Team Leader/BPE $ 155 Team Leader/Commissioning $ 155 Team Leader/SDS $ 130 Commissioning Agent II $ 125 Commissioning Agent 1 $ 105 Building Performance Engineer II $ 125 Building Performance Engineer I $ 105 Sustainable Design Specialist II $ 100 Sustainable Design Specialist 1 $ 90 Administrative Assistance $ 70 Professional Services Agreement — Work Order Type 7497 Building Energy Modeling Services Page 10 of 21 EXHIBIT C FEDERAL REQUIREMENTS TABLE OF CONTENTS Federallv Reauired and Other Model Contract Clauses 1. NO GOVERNMENT OBLIGATION TO THIRD PARTIES...................................................12 2. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS AND RELATED ACTS.........................................................................:..............................:.................................12 3. ACCESS TO RECORDS AND REPORTS.........................................................................12 4. FEDERAL CHANGES.........................................................................................................14 5. TERMINATION...................................................................................................................14 6. CIVIL RIGHTS REQUIREMENTS.......................................................................................15 7. DISADVANTAGED BUSINESS ENTERPRISE (DBE)........................................................16 8. INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION (FTA) TERMS ..............16 9. GOVERNMENT -WIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)........ 17 10. SEISMIC SAFETY REQUIREMENTS................................................................................18 11. PATENT AND RIGHTS IN DATA........................................................................................18 12. ENERGY CONSERVATION REQUIREMENTS.................................................................20 13. ADA Access........................................................................................................................20 14. CITY OF FORT COLLINS BID PROTEST PROCEDURES...............................................21 L, Professional Services Agreement — Work Order Type 7497 Building Energy Modeling Services Page 11 of 21 1. NO GOVERNMENT OBLIGATION TO THIRD PARTIES No Obligation by the Federal Government. (1) The Purchaser and Contractor acknowledge and agree that, notwithstanding any concurrence by the Federal Government in or approval of the solicitation or award of the underlying contract, absent the express written consent by the Federal Government, the Federal Government is not a party to this contract and shall not be subject to any obligations or liabilities to the Purchaser, Contractor, or any other party (whether or not a party to that contract) pertaining to any matter resulting from the underlying contract. (2) The Contractor agrees to include the above clause in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clause shall not be modified, except to identify the subcontractor who will be subject to its provisions. 2. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS AND RELATED ACTS Program Fraud and False or Fraudulent Statements or Related Acts. (1) The Contractor acknowledges that the provisions of the Program Fraud Civil Remedies Act of 1986, as amended, 31 U.S.C. § 3801 et sec . and U.S. DOT regulations, "Program Fraud Civil Remedies," 49 C.F.R. Part 31, apply to its actions pertaining to this Project. Upon execution of the underlying contract, the Contractor certifies or affirms the truthfulness and accuracy of any statement it has made, it makes, it may make, or causes to be made, pertaining to the underlying contract or the FTA assisted project for which this contract work is being performed. In addition to other penalties that may be applicable, the Contractor further acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification, the Federal Government reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986 on the Contractor to the extent the Federal Government deems appropriate. (2) The Contractor also acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification to the Federal Government under a contract connected with a project that is financed in whole or in part with Federal assistance originally awarded by FTA under the authority of 49 U.S.C. § 5307, the Government reserves the right to impose the penalties of 18 U.S.C. § 1001 and 49 U.S.C. § 5307(n)(1) on the Contractor, to the extent the Federal Government deems appropriate. (3) The Contractor agrees to include the above two clauses in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clauses shall not be modified, except to identify the subcontractor who will be subject to the provisions. 3. ACCESS TO RECORDS AND REPORTS Access to Records - The following access to records requirements apply to this Contract: A. Where the Purchaser is not a State but a local government and is the FTA Recipient or a subgrantee of the FTA Recipient in accordance with 49 C.F.R. 18.36(i), the Contractor agrees to provide the Purchaser, the FTA Administrator, the Comptroller Professional Services Agreement — Work Order Type 7497 Building Energy Modeling Services Page 12 of 21 General of the United States or any of their authorized representatives access to any books, documents, papers and records of the Contractor which are directly pertinent to this contract for the purposes of making audits, examinations, excerpts and transcriptions. Contractor also agrees, pursuant to 49 C.F.R. 633.17 to provide the FTA Administrator or his authorized representatives including any PMO Contractor access to Contractor's records and construction sites pertaining to a major capital project, defined at 49 U.&C. 5302(a)1, which is receiving federal financial assistance through the programs described at 49 U.S.C. 5307, 5309 or 5311. B. The Contractor agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed. C. The Contractor agrees to maintain all books, records, accounts and reports required under this contract for a period of not less than three years after the date of termination or expiration of this contract, except in the event of litigation or settlement of claims arising from the performance of this contract, in which case Contractor agrees to maintain same until the Purchaser, the FTA Administrator, the Comptroller General, or any of their duly authorized representatives, have disposed of all such litigation, appeals, claims or exceptions related thereto. Reference 49 CFR 18.39(i)(11). D. FTA does not require the inclusion of these requirements in subcontracts. Requirements for Access to Records and Reports by Types of Contract Contract Characteristics Operationa I Service Contract Turnkey Constructio n Architectural Engineering Acquisitio n of Rolling Stock Professional Services I State Grantees a. Contracts below None Those None None None None SAT ($100,000) imposed on state pass thru to b. Contracts above None Contractor Yes, if non- None unless None None unless non- $100,000/Capital unless' competitive non- unless competitive award Projects non- award or if competitive non- competitive funded thru2 award competitiv award 5307/5309/5 a award 311 II Non State Grantees a. Contracts below Those SAT ($100,000) Yes3 imposed on Yes Yes Yes Yes non -state b. Contracts above Grantee $100,000/Capital Yes3 pass thru to Yes Yes Yes Yes Projects Contractor Sources of Authority: 49 USC 5325 (a) 49 CFR 633.17 18 CFR 18.36 (i) Professional Services Agreement — Work Order Type 7497 Building Energy Modeling Services Page 13 of 21 f 4. FEDERAL CHANGES Federal Changes - Contractor shall at all times comply with all applicable FTA regulations, policies, procedures and directives, including without limitation those listed directly or by reference in the Master Agreement between Purchaser and FTA, as they may be amended or promulgated from time to time during the term of this contract. Contractor's failure to so comply shall constitute a material breach of this contract. 5. TERMINATION A. Termination for Convenience (General Provision) The (Recipient) may terminate this contract, in whole or in part, at any time by written notice to the Contractor when it is in the Government's best interest. The Contractor shall be paid its costs, including contract close-out costs, and profit on work performed up to the time of termination. The Contractor shall promptly submit its termination claim to (Recipient) to be paid the Contractor. If the Contractor has any property in its possession belonging to the (Recipient), the Contractor will account for the same, and dispose of it in the manner the (Recipient) directs. B. Termination for Default [Breach or Cause] (General Provision) If the Contractor does not deliver supplies in accordance with the contract delivery schedule, or, if the contract is for services, the Contractor fails to perform in the manner called for in the contract, or if the Contractor fails to comply with any other provisions of the contract, the (Recipient) may terminate this contract for default. Termination shall be effected by serving a notice of termination on the contractor setting forth the manner in which the Contractor is in default. The contractor will only be paid the contract price for supplies delivered and accepted, or services performed in accordance with the manner of performance set forth in the contract. If it is later determined by the (Recipient) that the Contractor had an excusable reason for not performing, such as a strike, fire, or flood, events which are not the fault of or are beyond the control of the Contractor, the,(Recipient), after setting up a new delivery of performance schedule, may allow the Contractor to continue work, or treat the termination as a termination for convenience. C. Opportunity to Cure (General Provision) The (Recipient) in its sole discretion may, in the case of a termination for breach or default, allow the Contractor [an appropriately short period of time] in which to cure the defect. In such case, the notice of termination will state the time period in which cure is permitted and other appropriate conditions If Contractor fails to remedy to (Recipient)'s satisfaction the breach or default of any of the terms, covenants, or conditions of this Contract within [ten (10) days] after receipt by Contractor of written notice from (Recipient) setting forth the nature of said breach or default, (Recipient) shall have the right to terminate the Contract without any further obligation to Contractor. Any such termination for default shall not in any way operate to preclude (Recipient) from also pursuing all available remedies against Contractor and its sureties for said breach or default. D. Termination for Convenience (Professional or Transit Service Contracts) The (Recipient), by written notice, may terminate this contract, in whole or in part, when it is in the Government's interest. If this contract is terminated, the Recipient shall be liable only for payment under the payment provisions of this contract for services rendered before the effective date of termination. E. Termination for Convenience or Default (Architect and Engineering) The Professional Services Agreement — Work Order Type 7497 Building Energy Modeling Services Page 14 of 21 (Recipient) may terminate this contract in whole or in part, for the Recipient's convenience or because of the failure of the Contractor to fulfill the contract obligations. The (Recipient) shall terminate by delivering to the Contractor a Notice of Termination specifying the nature, extent, and effective date of the termination. Upon receipt of the notice, the Contractor shall (1) immediately discontinue all services affected (unless the notice directs otherwise), and (2) deliver to the Contracting Officer all data, drawings, specifications, reports, estimates, summaries, and other information and materials accumulated in performing this contract, whether completed or in process. If the termination is for the convenience of the Recipient, the Contracting Officer shall make an equitable adjustment in the contract price but shall allow no anticipated profit on unperformed services. If the termination is for failure of the Contractor to fulfill the contract obligations, the Recipient may complete the work by contact or otherwise and the Contractor shall be liable for any additional cost incurred by the Recipient. If, after termination for failure to fulfill contract obligations, it is determined that the Contractor was not in default, the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of the Recipient. 6. CIVIL RIGHTS REQUIREMENTS Civil Rights - The following requirements apply to the underlying contract: (1) Nondiscrimination - In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C. § 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6102, section 202 of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, and Federal transit law at 49 U.S.C."§ 5332, the Contractor agrees that it will not discriminate against any employee or applicant for employment because of race, color, creed, national origin, sex, age, or disability. In addition, the Contractor agrees to comply with applicable Federal implementing regulations and other implementing requirements FTA may issue. (2) Equal Employment Opportunity - The following equal employment opportunity requirements apply to the underlying contract: (a) Race, Color, Creed, National Origin, Sex - In accordance with Title VII of the Civil Rights Act, as amended, 42 U.S.C. § 2000e, and Federal transit laws at 49 U.S.C. § 5332, the Contractor agrees to comply with all applicable equal employment opportunity requirements of U.S. Department of Labor (U.S. DOL) regulations, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor," 41 C.F.R. Parts 60 et seg., (which implement Executive Order No. 11246, "Equal Employment Opportunity," as amended by Executive Order No. 11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity," 42 U.S.C. § 2000e note), and with any applicable Federal statutes, executive orders, regulations, and Federal policies that may in the future affect construction activities undertaken in the course of the Project. The Contractor agrees to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, creed, national origin, sex, or age. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination; rates of pay or other Professional Services Agreement — Work Order Type 7497 Building Energy Modeling Services Page 15 of 21 forms of compensation; and selection for training, including apprenticeship. In _ addition, the Contractor agrees to comply with any implementing requirements FTA may issue. (b) Acme - In accordance with section 4 of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § § 623 and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees to refrain from discrimination against present and prospective employees for reason of age. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue. (c) Disabilities -- In accordance with section 102 of the Americans with Disabilities Act, as amended, 42 U.S.C. § 12112, the Contractor agrees that it will comply with the requirements of U.S. Equal Employment Opportunity Commission, "Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act," 29 C.F.R. Part 1630, pertaining to employment of persons with disabilities. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue. (3) The Contractor also agrees to include these requirements in each subcontract financed in whole or in part with Federal assistance provided by FTA, modified only if necessary to identity the affected parties. 7. DISADVANTAGED BUSINESS ENTERPRISE (DBE) a. This contract is subject to the requirements of Title 49, Code of Federal Regulations, Part 26, Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs. The national goal for participation of Disadvantaged Business Enterprises (DBE) is 10%. The agency's overall goal for DBE participation is 9.9 %. A separate contract goal has not been established for this procurement. b. The contractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of this DOT -assisted contract. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as City of Fort Collins deems appropriate. Each subcontract the contractor signs with a subcontractor must include the assurance in this paragraph (see 49 CFR 26.13(b)). c. The successful bidder/offeror will be required to report its DBE participation obtained through race -neutral means throughout the period of performance. d. The contractor is required to pay its subcontractors performing work related to this contract for satisfactory performance of that work no later than 30 days after the contractor's receipt of payment for that work from the City of Fort Collins. In addition, the contractor may not hold retainage from its subcontractors. The contractor must promptly notify City of Fort Collins whenever a DBE subcontractor performing work related to this contract is terminated or fails to complete its work, and must make good faith efforts to engage another DBE subcontractor to perform at least the same amount of work. The contractor may not terminate any DBE subcontractor and perform that work through its own forces or those of an affiliate without prior written consent of City of Fort Collins. 8. INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION (FTA) TERMS Professional Services Agreement — Work Order Type 7497 Building Energy Modeling Services Page 16 of 21 Incorporation of Federal Transit Administration (FTA) Terms - The preceding provisions include, in part, certain Standard Terms and Conditions required by DOT, whether or not expressly set forth in the preceding contract provisions. All contractual provisions required by DOT, as set forth in FTA Circular 4220.1 E, are hereby incorporated by reference. Anything to the contrary herein notwithstanding, all FTA mandated terms shall be deemed to control in the event of a conflict with other provisions contained in this Agreement. The Contractor shall not. perform any act, fail to perform any act, or refuse to comply with any (name of grantee) requests which would cause (name of grantee) to be in violation of the FTA terms and conditions. 9. GOVERNMENT -WIDE DEBARMENT AND SUSPENSION (NON PROCUREMENT) Background and Applicability In conjunction with the Office of Management and Budget and other affected Federal agencies, DOT published an update to 49 CFR Part 29 on November 26, 2003. This government -wide regulation implements Executive Order 12549, Debarment and Suspension, Executive Order 12689, Debarment and Suspension, and 31 U.S.C. 6101 note (Section 2455, Public Law 103-355, 108 Stat. 3327). The provisions of Part 29 apply to all grantee contracts and subcontracts at any level expected to equal or exceed $25,000 as well as any contract or subcontract (at any level) for Federally required auditing services. 49 CFR 29.220(b). This represents a change from prior practice in that the dollar threshold for application of these rules has been lowered from $100,000 to $25,000. These are contracts and subcontracts referred to in the regulation as "covered transactions." Grantees, contractors, and subcontractors (at any level) that enter into covered transactions are required to verify that the entity (as well as its principals and affiliates) they propose to contract or subcontract with is not excluded or disqualified. They do this by (a) Checking the Excluded Parties List System, (b) Collecting a certification from that person, or (c) Adding a clause or condition to the contract or subcontract. This represents a change from prior practice in that certification is still acceptable but is no longer required. 49 CFR 29.300. Grantees, contractors, and subcontractors who enter into covered transactions also must require the entities they contract with to comply with 49 CFR 29, subpart C and include this requirement in their own subsequent covered transactions (i.e., the requirement flows down to subcontracts at all levels). Clause Lanquage The following clause language is suggested, not mandatory. It incorporates the optional method of verifying that contractors are not excluded or disqualified by certification. Suspension and Debarment. This contract is a covered transaction for purposes of 49 CFR Part 29. As such, the contractor is required to verify that none of the contractor, its principals, as defined at 49 CFR 29.995, or affiliates, as defined at 49 CFR 29.905, are excluded or disqualified as defined at 49 CFR 29.940 and 29.945. The contractor is required to comply with 49 CFR 29, Subpart C and must include the requirement to comply with 49 CFR 29, Subpart C in any lower tier covered transaction it enters into. By signing and submitting its bid or proposal, the bidder or proposer certifies as follows: Professional Services Agreement — Work Order Type 7497 Building Energy Modeling Services Page 17 of 21 The certification in this clause is a material representation of fact relied upon by {insert agency name). If it is later determined that the bidder or proposer knowingly rendered an erroneous certification, in addition to remedies available to {insert agency name), the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. The bidder or proposer agrees to comply with the requirements of 49 CFR 29, Subpart C while this offer invalid and throughout the period of any contract that may arise from this offer. The bidder or proposer further agrees to include a provision requiring such compliance in its lower tier covered transactions. 10. SEISMIC SAFETY REQUIREMENTS Seismic Safety - The contractor agrees that any new building or addition to an existing building will be designed and constructed in accordance with the standards for Seismic Safety required in Department of Transportation Seismic Safety Regulations 49 CFR Part 41 and will certify to compliance to the extent required by the regulation. The contractor also agrees to ensure that all work performed under this contract including work performed by a subcontractor is in compliance with the standards required by the Seismic Safety Regulations and the certification of compliance issued on the project. 11. PATENT AND RIGHTS IN DATA CONTRACTS INVOLVING EXPERIMENTAL, DEVELOPMENTAL, OR RESEARCH WORK. A. Rights in Data - This following requirements apply to each contract involving experimental, developmental or research work: (1) The term "subject data" used in this clause means recorded information, whether or not copyrighted, that is delivered or specified to be delivered under the contract. The term includes graphic or pictorial delineation in media such as drawings or photographs; text in specifications or related performance or design -type documents; machine forms such as punched cards, magnetic tape, or computer memory printouts; and information retained in computer memory. Examples include, but are not limited to: computer software, engineering drawings and associated lists, specifications, standards, process sheets, manuals, technical reports, catalog item identifications, and related information. The term "subject data" does not include financial reports, cost analyses, and similar information incidental to contract administration. (2) The following restrictions apply to all subject data first produced in the performance of the contract to which this Attachment has been added: (a) Except for its own internal use, the Purchaser or Contractor may not publish or reproduce subject data in whole or in part, or in any manner or form, nor may the Purchaser or Contractor authorize others to do so, without the written consent of the Federal Government, until such time as the Federal Government may have either released or approved the release of such data to the public; this restriction on publication, however, does not apply to any contract with an academic institution. (b) In accordance with 49 C:F.R. § 18.34 and 49 C.F.R. § 19.36, the Federal Government reserves a royalty -free, non-exclusive and irrevocable license to reproduce, publish, or otherwise use, and to authorize others to use, for Professional Services Agreement — Work Order Type 7497 Building Energy Modeling Services Page 18 of 21 "Federal Government purposes," any subject data or copyright described in subsections (2)(b)1 and (2)(b)2 of this clause below. As used in the previous sentence, "for Federal Government purposes," means use only for the direct purposes of the Federal Government. Without the copyright owner's consent, the Federal Government may not extend its Federal license to any other party. 1. Any subject data developed under that contract, whether or not a copyright has been obtained; and 2. Any rights of copyright purchased by the Purchaser or Contractor using Federal assistance in whole or in part provided by FTA. (c) When FTA awards Federal assistance for experimental, developmental, or research work, it is FTA's general intention to increase transportation knowledge available to the public, rather than to restrict the benefits resulting from the work to participants in that work. Therefore, unless FTA determines otherwise, the Purchaser and the Contractor performing experimental, developmental, or research work required by the underlying contract to which this Attachment is added agrees to permit FTA to make available to the public; either FTA's license in the copyright to any subject data developed in the course of that contract, or a copy of the subject data first produced under the contract for which a copyright has not been obtained. If the experimental, developmental, or research work, which is the subject of the underlying contract, is not completed for any reason whatsoever, all data developed under that contract shall become subject data as defined in subsection (a) of this clause and shall be delivered as the Federal Government may direct. This subsection (c) , however, does not apply to adaptations of automatic data processing equipment or programs for the Purchaser or Contractor's use whose costs are financed in whole or in part with Federal assistance provided by FTA for transportation capital projects. (d) Unless prohibited by state law, upon request by the Federal Government, the Purchaser and the Contractor agree to indemnify, save, and hold harmless the Federal Government, its officers, agents, and employees acting within the scope of their official duties against any liability, including costs and expenses, resulting from any willful or intentional violation by the Purchaser or Contractor of proprietary rights, copyrights, or right of privacy, arising out of the publication, translation, reproduction, delivery, use, or disposition of any data furnished under that contract. Neither the Purchaser nor the Contractor shall be required to indemnify the Federal Government for any such liability arising out of the wrongful act of any employee, official, or agents of the Federal Government. (e) Nothing contained in this clause on rights in data shall imply a license to the Federal Government under any patent or be construed as affecting the scope of any license or other right otherwise granted to the Federal Government under any patent. (f) Data developed by the Purchaser or Contractor and financed entirely without using Federal assistance provided by the Federal Government that has been incorporated into work required by the underlying contract to which this Attachment has been added is exempt from the requirements of subsections (b), (c), and (d) of this clause, provided that the Purchaser or Contractor identifies that data in writing at the time of delivery of the contract work. Professional Services Agreement - Work Order Type 7497 Building Energy Modeling Services Page 19 of 21 Written notice of renewal shall be provided to the Professional and mailed no later than ninety (90) days prior to contract end. 5. Early Termination by City/Notice. Notwithstanding the time periods contained herein, the City may terminate this Agreement at any time without cause by providing written notice of termination to the Professional. Such notice shall be delivered at least fifteen (15) days prior to the termination date contained in said notice unless otherwise agreed in writing by the parties. All notices provided under this agreement shall be effective when mailed, postage prepaid and sent to the following address: Professional: City: With Copy to: Ambient Energy City of Fort Collins City of Fort Collins Attn: Linda Morrison Attn: Brian Hergot Attn: Purchasing Dept. 130 W 51h Ave PO Box 586 PO Box 580 Denver, CO 80204 Fort Collins, CO 80522 Fort Collins, CO 80522 In the event of any such early termination by the City, the Professional shall be paid for services rendered prior to the date of termination subject only to the satisfactory performance of the Professional's obligations under this Agreement. Such payment shall be the Professional's sole right and remedy for such termination. 6. Design, Project Insurance and Insurance Responsibility. The Professional shall be responsible for the professional quality, technical accuracy, timely completion and the coordination of all services rendered by the Professional, including but not limited to designs, plans, reports, specifications, and drawings and shall, without additional compensation, promptly remedy and correct any errors, omissions, or other deficiencies. The Professional shall indemnify, save and hold harmless the City its officers and employees, in accordance with Colorado law, from all damages whatsoever claimed by third parties against the City and for the City's costs and reasonable attorney's fees arising directly or indirectly out of the Professional's negligent performance of any of the services furnished under this Agreement. The Professional shall maintain commercial general liability insurance in the amount of $500,000 combined single Professional Services Agreement - Work Order Type 7497 Building Energy Modeling Services Page 2 of 21 (g) Unless FTA determines otherwise, the Contractor agrees to include these requirements in each subcontract for experimental, developmental, or research work financed in whole or in part with Federal assistance provided by FTA. (3) Unless the Federal Government later makes a contrary determination in writing, irrespective of the Contractor's status (i.e., a large business, small business, state government or state instrumentality, local government, nonprofit organization, institution of higher education, individual, etc.), the Purchaser and the Contractor agree to take the necessary actions to provide, through FTA, those rights in that invention due the Federal Government as described in U.S. Department of Commerce regulations, "Rights to Inventions Made by No Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements," 37 C.F.R. Part 401. (4) The Contractor also agrees to include these requirements in each subcontract for experimental, developmental, or research work financed in whole or in part with Federal assistance provided by FTA. B. Patent Rights - The following requirements apply to each contract involving experimental, developmental, or research work: (1) General - If any invention, improvement, or discovery is conceived or first actually reduced to practice in the course of or under the contract to which this Attachment has been added, and that invention, improvement, or discovery is patentable under the laws of the United States of America or any foreign country, the Purchaser and Contractor agree to take actions necessary to provide immediate notice and a detailed report to the party at a higher tier until FTA is ultimately notified. (2) Unless the Federal Government later makes a contrary determination in writing, irrespective of the Contractor's status (a large business, small business, state government or state instrumentality, local government, nonprofit organization, institution of higher education, individual), the Purchaser and the Contractor agree to take the necessary actions to provide, through FTA, those rights in that invention due the Federal Government as described in U.S. Department of Commerce regulations, "Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements," 37 C.F.R. Part 401. (3) The Contractor also agrees to include the requirements of this clause in each subcontract for experimental, developmental, or research work financed in whole or in part with Federal assistance provided by FTA 12. ENERGY CONSERVATION REQUIREMENTS Energy Conservation - The contractor agrees to comply with mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act. 13. ADA Access Accessibility. Facilities to be used in public transportation service must comply with 42 U.S.C. Sections 12101 et seq. and DOT regulations, "Transportation Services for Individuals with Disabilities (ADA)," 49 CFR Part 37; and Joint ATBCB/DOT regulations, "Americans with Disabilities (ADA) Accessibility Specifications for Transportation Vehicles," 36 CFR Part 1192 and 49 CFR Part 38. Notably, DOT incorporated by Professional Services Agreement — Work Order Type 7497 Building Energy Modeling Services Page 20 of 21 reference the ATBCB's "Americans with Disabilities Act Accessibility Guidelines" (ADAAG), revised July 2004, which include accessibility guidelines for buildings and facilities, and are incorporated into Appendix A to 49 CFR Part 37. DOT also added specific provisions to Appendix A modifying the ADAAG, with the result that buildings and facilities must comply with both the ADAAG and amendments thereto in Appendix A to 49 CFR Part 37. 14. CITY OF FORT COLLINS BID PROTEST PROCEDURES The City of Fort Collins has a protest procedure, covering any phase of solicitation or award, including but not limited to specification or award. The protest procedures are available from the Purchasing Department, City of Fort Collins, 215 N. Mason, Street, 2nd Floor, P. O. Box 580, Fort Collins, CO. 80522. You may also request a copy of the procedures by emailing: Purchasing(aa-)fcgov.com or calling 970-221-6775. Professional Services Agreement — Work Order Type 7497 Building Energy Modeling Services Page 21 of 21 ACORU® CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD VYYY) 5/23/2013 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsemen s . PRODUCER Van Gilder Insurance Corp. 1515 Wynkoop, Suite 200 Denver CO 80202 CONTACT NAME: Van Stone FAX PHONE (A/C. No):301831 E-MAIL ADDRESS: INSURERS AFFORDING COVERAGE NAIC N INSURER Aflartford Insurance (Service Center) INSURED AMBENE Ambient Energy, Inc. 130 West 5th Ave. Denver CO 80204 INSURER B:Hartford Insurance(Service Center) INSURER C:N V f Insurance m n INSURER D INSURER E INSURER F COVERAGES CERTIFICATE NUMBER: 7RO40659A REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR 7ypE OF INSURANCE INSR WVD POLICY NUMBER POLICY EFF MMIDDNYVV POLICY EXP MMIDDNYYY LIMITS A GENERAL LIABILITY Y Y 34SBWPG4483 /1/2013 /1/2014 EACH OCCURRENCE $1,000,000 X COMMERCIAL GENERAL LIABILITY DAMAGE TO RENTED PREMISES(Ea occurrence $300,000 MED EXP(Any one person) $10,000 CLAIMS -MADE IT] OCCUR PERSONAL& ADV INJURY $1,000,000 GENERAL AGGREGATE $2,000,000 GENT AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP/OP AGG $2,000,000 $ POLICY X PRO- LOC A AUTOMOBILE LIABILITY Y Y 14SIIWPG4483 /1/2013 11/2014 Ea accident 1000000 BODILY INJURY(Per person) $ ANY AUTO BODILY INJURY (Per accident) $ ALL OWNED SCHEDULED AUTOS 11 AUTOS X X NON -OWNED HIRED AUTOS AUTOS Per PERTaccident)DAMAGE $ UMBRELLA LIAB OCCUR EACH OCCURRENCE $ AGGREGATE $ EXCESS LIAB CLAIMS -MADE DEC) RETENTION$ $ I B WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETORMARTNER/EXECUTIVE YIN Y 4WEGVY3870 /1/2013 /1/2014 WC STATU- DTH- E.L. EACH ACCIDENT $1,000,000 OFFICER/MEMBER EXCLUDED? (Mandatory In NH) NIP` E.L. DISEASE - EA EMPLOYEE $1,000,000 E.L. DISEASE -POLICY LIMIT $1,000,000 N yes, describe under DEnRIPTION OF OPERATIONS below C Professional Liability N N M13DPL2607971V /l/2013 /1/2014 Per Claim $1,000,000 Claims Made Annual Aggregate $2,000,000 DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more apace Is required) If required by written contract or written agreement, the following provisions apply subject to the policy terms, conditions, limitations and exclusions: The Certificate Holder and Owner are included as Additional Insureds for ongoing and completed operations under General Liability and Automobile Liability with respect to liability arising out of the Named Insured's work performed on behalf of the certificate holder and owner. This insurance will apply on a primary, non-contributory basis. A Blanket Waiver of Subrogation applies for General Liability, Automobile Liability and Workers' Compensation. Limited Contractual Liability is included. RENEE J AZERBEGI See Attached... L;tK I I4'1L;A It MULUtK City of Fort Collins Attn: Brian Hegort PO BOX 580 Fort Collins, CO 80522 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPR-ESENT�ATIVEE /�✓/O;I."b © 1988-2010 ACORD CORPORATION. All riahts reserved. ACORD 25 (2010/05) The ACORD name and logo are registered marks of ACORD AGENCY CUSTOMER ID: AMBENE _ LOC #: ACiI166�® ADDITIONAL REMARKS SCHEDULE Page 1 of 1 AGENCY Van Gilder Insurance Corp. NAMED INSURED - Ambient Energy, Inc. 130 West 5th Ave. Denver CO 80204 POLICY NUMBER CARRIER NAIL CODE EFFECTIVE DATE: ADDITIONAL REMARKS THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER: 25 FORM TITLE: CERTIFICATE OF LIABILITY INSURANCE Re: Project 7497 Building Energy Modeling Services Additional Insured: City of Fort Collins its officers and employees ACORD 1 n1 12nn8/n11 © 2008 ACORD CORPORATION. All riahts reserved. The ACORD name and logo are registered marks of ACORD limits and errors and omissions insurance in the amount of $1,000,000. 7. Compensation. In consideration of services to be performed pursuant to this Agreement, the City agrees to pay Professional on a time and reimbursable direct cost basis designated in Exhibit "B", consisting of one (1) page(s), attached hereto and incorporated herein by this reference. At the election of the City, each Work Order may contain a maximum fee, which shall be negotiated by the parties hereto for each such Work Order. Monthly partial payments based upon the Professional's billings and itemized statements are permissible. The amounts of all such partial payments shall be based upon the Professional's City -verified progress in completing the services to be performed pursuant to the Work Order and upon approval of the Professional's direct reimbursable expenses. Final payment shall be made following acceptance of the work by the City. Upon final payment, all designs, plans, reports, specifications, drawings, and other services rendered by the Professional shall become the sole property of the City. 8. City Representative. The City will designate, prior to commencement of work, its project representative who shall make, within the scope of his or her authority, all necessary and proper decisions with reference to the project. All requests for contract interpretations, change orders, and other clarification or instruction shall be directed to the City Representative. 9. Project Drawings. Upon conclusion of the project and before final payment, the Professional shall provide the City with reproducible drawings of the project containing accurate information on the project as constructed. Drawings shall be of archival, prepared on stable mylar base material using a non -fading process to provide for long storage and high quality reproduction. "CD" disc of the as -built drawings shall also be submitted to the owner in and AutoCAD version no older then the established city standard. 10. Monthly Report. Commencing thirty (30) days after Notice to Proceed is given on any Work Order and every thirty days thereafter, Professional is required to provide the City Representative with a written report of the status of the work with respect to the Work Order, Professional Services Agreement — Work Order Type 7497 Building Energy Modeling Services Page 3 of 21 Work Schedule and other material information. Failure to provide any required monthly report may, at the option of the City, suspend the processing of any partial payment request. 11. Independent Contractor. The services to be performed by Professional are those of an independent contractor and not of an employee of the City of Fort Collins. The City shall not be responsible for withholding any portion of Professional's compensation hereunder for the payment of FICA, Workers' Compensation, other taxes or benefits or for any other purpose. 12. Personal Services. It is understood that the City enters into this Agreement based on the special abilities of the Professional and that this Agreement shall be considered as an agreement for personal services. Accordingly, the Professional shall neither assign any responsibilities nor delegate any duties arising under this Agreement without the prior written consent of the City 13. Acceptance Not Waiver. The City's approval of drawings, designs, plans, specifications, reports, and incidental work or materials furnished hereunder shall not in any way' relieve the Professional of responsibility for the quality or technical accuracy of the work. The City's approval or acceptance of, or payment for, any of the services shall not be construed to operate as a waiver of any rights or benefits provided to the City under this Agreement. 14. Default. Each and every term and condition hereof shall be deemed to be a material element of this Agreement. In the event either party should fail or refuse to perform according to the terms of this agreement, such party may be declared in default. 15. Remedies. In the event a party has been declared in default, such defaulting party shall be allowed a period of ten (10) days within which to cure said default. In the event the default remains uncorrected, the party declaring default may elect to (a) terminate the Agreement and seek damages; (b) treat the Agreement as continuing and require specific performance; or (c) avail himself of any other remedy at law or equity. If the non -defaulting party commences legal or equitable actions against the defaulting party, the defaulting party shall be liable to the non -defaulting parry for the non -defaulting party's reasonable attorney fees Professional Services Agreement — Work Order Type 7497 Building Energy Modeling Services Page 4 of 21 and costs incurred because of the default. 16. Binding Effect. This writing, together with the exhibits hereto, constitutes the entire agreement between the parties and shall be binding upon said parties, their officers, employees, agents and assigns and shall inure to the benefit of the respective survivors, heirs, personal representatives, successors and assigns of said parties. 17. Law/Severability. The laws of the State of Colorado shall govern the construction, interpretation, execution and enforcement of this Agreement. In the event any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision of this Agreement. 18. Prohibition Against Employing Illegal Aliens. Pursuant to Section 8-17.5-101, C.R.S., et. seq., Professional represents and agrees that: a. As of the date of this Agreement: 1. Professional does not knowingly employ or contract with an illegal alien who will perform work under this Agreement; and 2. Professional will participate in either the e-Verify program created in Public Law 208, 104th Congress, as amended, and expanded in Public Law 156, 108th Congress, as amended, administered by the United States Department of Homeland Security (the "e-Verify Program") or the Department Program (the "Department Program"), an employment verification program established pursuant to Section 8-17.5-102(5)(c) C.R.S. in order to confirm the employment eligibility of all newly hired employees to perform work under this Agreement. b. Professional shall not knowingly employ or contract with an illegal alien to perform work under this Agreement or knowingly enter into a contract with a subcontractor that knowingly employs or contracts with an illegal alien to perform work under this Agreement. Professional Services Agreement.— Work Order Type 7497 Building Energy Modeling Services Page 5 of 21 C. Professional is prohibited from using the e-Verify Program or Department Program procedures to undertake pre -employment screening of job applicants while this Agreement is being performed. d. If Professional obtains actual knowledge that a subcontractor performing work under this Agreement knowingly employs or contracts with an illegal alien, Professional. shall: Notify such subcontractor and the City within three days that Professional has actual knowledge that the subcontractor is employing or contracting 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 illegal alien; except that Professional shall not terminate the contract 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. e. Professional shall comply with any reasonable request by the Colorado Department of Labor and Employment (the "Department") made in the course of an investigation that the Department undertakes or is undertaking pursuant to the authority established in Subsection 8-17.5-102 (5), C.R.S. If Professional violates any provision of this Agreement pertaining to the duties imposed by Subsection 8-17.5-102, C.R.S. the City may terminate this Agreement. If this Agreement is so terminated, Professional shall be liable for actual and consequential damages to the City arising out of Professional's violation of Subsection 8-17.5-102, C.R.S. g. The City will notify the Office of the Secretary of State if Professional violates this provision of this Agreement and the City terminates the Agreement for such breach. Professional Services Agreement — Work Order Type 7497 Building Energy Modeling Services Page 6 of 21 19. Special Provisions. Special provisions or conditions relating to the services to be performed pursuant to this Agreement are set forth in Exhibit "C", consisting of twelve (12) pages, attached hereto and incorporated herein by this reference. THE CITY OFF RT COLLINS, CO RADO Irk *00000 GeFry S. Paul Director of Purchasing &Risk Management �•.•••- - 040.0 •• o° Date: S /; t 1,3 ATTEST: ain&`�� City Clerk APPROVED AS TO FO AMBIENT ENERGY By:-�'�l�t.f C 4i Title: Yre.Si de CORPORATE PRESIDENT OR VICE PRESIDENT Date: S: Z 3 "20 1 3 ATTEST: (Corporate Seal) C orate Secretary Professional Services Agreement - Work Order Type 7497 Building Energy Modeling Services Page 7 of 21 EXHIBIT "A" WORK ORDER FORM PURSUANT TO AN AGREEMENT BETWEEN THE CITY OF FORT COLLINS AND DATED: Work Order Number: Purchase Order Number:;. Project Title: Commencement Date: Completion Date: Maximum Fee: (time and reimbursable direct costs): Project Description: Scope of Services: User Acceptance Professional agrees to perform the services identified above and on the attached forms in accordance with the terms and conditions contained herein and in the Professional Services Agreement between the parties. In the,event of a conflict between or ambiguity in the terms of the Professional Services Agreement and this work order (including the attached forms) the Professional Services Agreement shall control. The attached forms consisting of _ (_) pages - are hereby accepted and incorporated herein, by this reference, and Notice to Proceed is hereby given. Professional By: Date: City of Fort Collins By: Gerry S. Paul Director of Purchasing and Risk Management (over $60,000.00) Date: Professional Services Agreement — Work Order Type 7497 Building Energy Modeling Services Page 8 of 21 OVERALL SCOPE OF SERVICES The City seeks energy modeling services to support their efforts in meeting high performance building targets for City buildings. The City will look to the energy modeler for the following services: • Provide whole -building performance analysis using hourly simulation tools (see below for acceptable tools) • Conduct detailed daylighting studies using tools such as Radiance, SPOT, AGI, IES VE, Ecotect, etc. • Support integrated project design and delivery, using modeling to inform the design process. • Develop various types of models for new construction projects, which may include minimally -code compliant, LEED baseline, Architecture 2030 Challenge targets, as -designed and as -built. • Develop minimally -code compliant and LEED baseline models for new construction projects • Develop operational models for existing building performance assessment • Generate synergistic bundles of energy -efficiency measures that include passive design strategies, load reducing measures, effective control strategies and efficient/right-sized equipment • Evaluate renewable energy systems • Assess the value of improvements beyond energy cost savings (e.g., IEQ) • Identify efficiency performance risks and methods for management • Complete life -cycle cost assessment using modeling results,, incremental cost data, and economic factors. • Provide assumptions, results and recommendations through transparent reporting per City required format • Actively participate in design team discussions. • Provide calibrated simulations to comply with LEED NC M&V requirements Professional Services Agreement — Work Order Type 7497 Building Energy Modeling Services Page 9 of 21