Introduced by: The President of the Council at the request of the County Executive

Transcription

1 COUNTY COUNCIL OF WICOMICO COUNTY, MARYLAND 2012 Legislative Session Legislative Day No. 09 Resolution No Introduced by: The President of the Council at the request of the County Executive A RESOLUTION APPROVING AN ENERGY PERFORMANCE CONTRACT WITH ENERGY SYSTEMS GROUP, LLC AND AUTHORIZING THE COUNTY EXECUTIVE TO EXECUTE THE CONTRACT. WHEREAS, on March 4, 2011, the County entered into an Agreement to Provide Phase I Energy Performance Services with Energy Systems Group, LLC for an energy performance study that guaranteed utility savings, reductions in energy and water consumption, and identified energy conservation measures; and WHEREAS, Energy Systems Group, LLC has completed the Phase I study and has now submitted a Phase II Proposal for Energy Performance Contract for the installation of upgrades and improvements to facilities countywide that will guarantee energy and costs savings; and WHEREAS, the County Executive recommends the approval of the Energy Performance Contract attached as Exhibit A. NOW, THEREFORE, BE IT RESOLVED BY THE COUNTY COUNCIL OF WICOMICO COUNTY, MARYLAND THAT the Energy Performance Contract is hereby approved as to form and content, in substantially the form attached hereto as Exhibit A, and the County Executive is hereby authorized to execute the Energy Performance Contract in the name and behalf of Wicomico County. Done at Salisbury, Maryland, this 1 7th Day of April ATTEST: COUNTY COUNCIL OF WICOMICO COUNTY, M Y AND - Matthew E. Creamer, Council Administrator,e Hollway, Council President / CERTIFICATION This Resolution was Adopted Adopted with Amendments_, Failed April 17, 2012, Withdraw by the Coun Council on II Ceiifled by ( / thew E. Creamer, Council Administrator

2 This Contract is entered into this day of ENERGY PERFORMANCE CONTRACT RECITALS (ESG), having an address at 1099 Winterson Rd, Linthicum, MD 21090, herein called Contractor, and Wicomico County, Maryland, herein called Owner by and between Energy System Groups and ESG s subcontractors (c) All Engineering drawings and design documents in supporting the fmal proposal from both ESG 2006, and documents identified therein as part of the Contract Documents State of Maryland s Indefinite Delivery Contract No. DGS-06-EPC-IDC-5.0, dated August 21, This Contract a part hereof as if fully set forth: Contract Documents, are all essential documents of this Agreement and are incorporated herein and made 6. The Contractor and County agree that the following enumerated documents, collectively referred to as Assessments and Taxation. foreign corporation registered to do business in Maryland with the Maryland State Department of 5. The Contractor (if a corporation) hereby certifies that it is a Maryland corporation in good standing or a Agreement. 4. The County agrees that it will pay the Contractor, when due and payable under the terms of the Contract well and faithfully comply with and perform each and every obligation imposed upon it by this Documents and of said award, the sums set forth in Paragraph 8, and the Contractor agrees that it will requirements of the Contract Documents. are not limited to the furnishing of all material, labor, equipment, supplies, plant, tools, and all other services, facilities and expenses necessary for the full operational performance and completion of the 3. The Contractor covenants and agrees that its obligations pursuant to the Contract Documents include but Contract at and for a sum equal to the aggregate cost of the work, labor, equipment, materials, and The Contractor further covenants and agrees that it will well and faithfully comply with and perform each materials and perform all of the work and provide the guarantees and savings, and do everything required by the Contract Documents, all of which are made a part hereof and are referred to herein as the supplies done and furnished at the prices and rates respectively named in Paragraph 8 of this Contract. 2. The Contractor covenants and agrees with the County that it wifi well and faithfully furnish all of the and every obligation imposed upon him by the Contract Documents, or the terms of the award. the Contract Documents as described in Paragraph 6 of this Agreement. 1. The Contract is subject to all the conditions, covenants, stipulations, terms and provisions contained in by the County to the Contractor as agreed to below, the parties agree as follows: NOW THEREFORE, in consideration of the mutual promises and covenants of the parties and payments between the Contractor and the County evidencing the terms of the award. WHEREAS, this Contract will fulfill the provision that a formal contract should be executed by and order to develop and implement comprehensive energy efficiency and guaranteed savings programs at County audit, engineering, construction, provision of certain equipment, and measurement & verification to the County in facilities; and. WHEREAS, this Contract is being made for the Contractor to provide to project management, energy 421 EXHIBIT

3 (d) Proposal entitled Phase II Proposal for Energy Performance Contract (EPC) for Wicomico County dated November 11, (e) Performance Bond: (f) Payment Bond: (g) Guarantee Energy Savings Bond: In the event of a conflict between or among provisions of the Contract Documents, documents shall be controlling in the order in which they are listed in Section III - General Conditions of Indefinite Delivery Contract No. DGS-06-EPC-IDC-5.0 except that this Agreement shall be deemed to have the highest order of precedence. The term State in Indefinite Delivery Contract No. DGS-06-EPC-IDC-5.0 shall be deemed to mean County. The term Contractor or ESCO shall be deemed to mean the Contractor. 7. Time of Completion The scope identified in Section III, Phase II Proposal for Energy Performance Contract (EPC) for Wicomico County, shall be commenced upon issuance of a Purchase Order and written Notice to Proceed and shall be completed within 12 months of the issuance of the Notice to Proceed. This Notice to Proceed shall apply to all facilities included in the scope in Section HI. This time of completion is contingent upon receiving final approval on all submittals within a maximum of eight weeks of original submission. Any delays directly attributed to Wicomico County s review and approval of submittals will result in an equal delay in the time of completion. 8. Contract Price Subject to, and in accordance with the Contract Documents, and subject to the authorization by the Wicomico County Council the Owner shall pay the Contractor as follows: Amount Description Terms of Payment PHASE I CONSTRUCTION ( work already completed for new chiller in the Government Office Building, new boiler in the sheriff s office and new boiler in the Old Courthouse). Invoices will be submitted immediately upon issuance of NTP for the following amounts: $1,281, Design/Construction of GOB Payable immediately upon receipt of Invoice Chiller, Old courthouse Boiler and sheriff s office boiler PHASE II CONSTRUCTION Scope as outlined in Section III of the Phase II Proposal. $4,059, Design/Construction - Payable Miscellaneous work Monthly as progress is approved by the Owner during construction phase $ 273, Total Management Services Payable Monthly by Owner upon (Measurement & Verification, completion of construction Preventive Maintenance, and Guarantee Bond) $5,615, Total Contract Amount (Construction and Management Services)

4 9. Financing and Management Services. (c) Acknowledgment of Election of Owner Financing. By executing this Contract, Contractor acknowledges that the Owner has elected to exercise its option to finance the energy improvements through Owner s Master Lease Purchase Agreement. Contractor further acknowledges that the Owner s election of tax exempt financing places limitations on the private business use of such funds and the property financed with such funds. Management Services. Management Services is defmed as all monitoring and verification of energy savings (as outlined in Section IV, Measurement and Verification, of the Contractor s Final Phase II Proposal for Energy Performance Contract for Wicomico County Government), ongoing maintenance, preventive maintenance, and training (as outlined in Sections IV and V., Maintenance, of Contractor s Final Phase II Proposal for Energy Performance Contract for Wicomico County Government), and the securing of a Guarantee Energy Savings Bond. Payment for Management Services, consisting of an annual fee invoiced and payable monthly, shall be as set forth under the cash flow analysis on page 1 of Section II, Financials, of the Contractor s Final Phase II Proposal for Energy Performance Contract (EPC) for Wicomico County and will include M&V, Preventive Maintenance and Guarantee Energy Savings Bond. Severability of Management Services and Guarantee. The parties agree that the Management Services (and resultant fee) may be terminated (at the option of the Owner) separately from the Guarantee in accordance with the terms of this Contract. 10. Agreement on Guarantee of Annual Savings and Bonds. (c) Contractor warrants and guarantees that Owner will realize guaranteed energy savings of $7,919,615 and overall savings of $8,210,786 as set forth in Contractor s Final Phase H Proposal, Table - Cash Flow Analysis on page 1 of Section II Financials, and the other contract documents. The price for Contractor s guarantee bond that Owner will realize the savings set forth in the Financial Section of Contractor s Phase II Proposal is $94, and is included in the price set forth in paragraph 8 of this contract. The guarantee energy savings bond will be provided from a financial institution approved by the State Treasurer s Office and the Owner. This amount is shown as apportioned annually within the Contractor s Final Phase II Proposal, Section II - Cash flow analysis in the column labeled Energy Bond and will be invoiced and payable monthly as part of the Management Services. The Guarantee Energy Savings Bond shall be provided within 10 days of execution of the contract and prior to issuance of the purchase order. The form of the bond is attached hereto as Exhibit [ ]. Owner acknowledges that the Payment and Performance Bonds required hereunder shall expire upon final acceptance of all Energy Conservation Measures required under this Contract, including any applicable two year warranty period, and shall not secure any energy savings, measurement and verification obligations or maintenance/service obligations, which may be guaranteed by ESG under this Contract. This surety will be provided by an insurance company, which is licensed in the State of Maryland by the Maryland Insurance Commission. The bonds shall be provided prior to the issuance of the purchase order. 11. Clarifications to Section V of the lndefmite Delivery Contract The following clarifications to Section V of the Indefinite Delivery Contract are incorporated herein; Guaranteed Savings Reconciliation Report. Contractor will provide Owner with a Guaranteed

5 Savings Reconciliation Report after the one year anniversary of the end of the Construction Period (the end of Construction is triggered when the final completion certificate is signed by the County) and after the end of each subsequent annual Guaranty Period within 120 days after the year s end. Wicomico County shall assist Contractor in generating the savings reconciliation report by providing Contractor with access to, relevant records relating to such Energy and Operations and Maintenance Costs. Wicomico County shall also assist Contractor by permitting access to any energy billing information, maintenance records, drawings, or other data reasonably deemed necessary by Contractor to generate the said report. Data and calculations utilized by Contractor in the preparation of its Guaranteed Savings Reconciliation report will be made available to Owner, along with such explanations and clarifications as Owner may reasonably request. (c) Upon receipt of the Reconciliation Report, Owner shall have forty-five (45) days to review the Guaranteed Savings Reconciliation Report and provide written notice to Contractor of non-acceptance of the Guaranteed Savings Reconciliation Report for that Guaranty Year. Such written notice shall explain the specific reasons why the Owner does not accept the report. If the Owner fails to provide written notice of rejection within forty-five (45) days of the receipt of the Guaranteed Savings Reconciliation Report, it shall be deemed accepted. Guaranty Adjustment and Activities and Events Adversely Impacting Savings. Wicomico County shall promptly notify Contractor of any activities known to the Wicomico County, which adversely impact Contractor s ability to realize the Guaranteed Savings. If this type of situation occurs over the Guarantee Period Contractor shall be entitled to reduce its Guaranteed Savings, or make necessary adjustments to the energy baseline in order to quantify the changes in the facility. This will allow Contractor and the Wicomico County to recognize and document any such adverse impact to the extent that such adverse impact is beyond Contractor s reasonable control. 12. Special Provisions. Unless otherwise terminated sooner in accordance with the terms of the Contract Documents, this Contract shall remain in force and effect for the period described in the Contractor s Final Phase II Proposal for Energy Performance Contract for Wicomico County Government, or as determined at time of loan funding, provided that this Contract shall automatically terminate on the date which is sixteen (16) years from the first date on which Owner obtains tax-exempt financing to finance the capital portion (design and construction) of this Contract Documentation for Section 179d Tax Deduction - As a result of the implementation of this Project, certain tax deductions under Section 179D of the Internal Revenue Code may be available because of the energy efficient improvements to the Owner s buildings. The Owner agrees to allocate these Section 179D tax deductions to ESG to the extent such deduction arises from the technical specifications developed by ESG and the implementation of this Project. Upon job completion, the Owner agrees to execute the required written allocation including the declaration related to this tax code provision. ESG will be responsible for preparing the declaration and all accompanying documentation for Owner s signature. ESG will be designated the Section 179D beneficiary. (c) Assignment of Environmental Attributes As a result of the implementation of this Project, certain Environmental Attributes may be available, either now or in the future. This section specifies the process whereby the Owner will assign such Environmental Attributes to ESG.

6 Environmental Attributes means any and all credits, deductions, benefits, emission reductions, incentives, offsets, and allowances, howsoever entitled, attributable to and arising from the implementation of this Project, whether such Environmental Attributes now exist or are developed in the future. Environmental Attributes include but are not limited to: (1) Any avoided emissions of pollutants to the air, soil, or water; (2) Any avoided emissions of carbon dioxide (C02), methane (CH4) and other greenhouse gases (GHGs); (3) Section 45 credits; (4) green tags; (5) renewable energy credits; and (6) The reporting rights to these avoided emissions such as White Tag Reporting Rights. Environmental Attributes also include any energy, capacity, reliability, or other energy reduction attributes that result from the implementation of this Project. All Environmental Attributes arising from the implementation of this Project shall be owned by ESG. Owner agrees to execute all required documentation to assign all Environmental Attributes to ESG. If any filings are required with the Internal Revenue Service or some other governmental entity to obtain the benefits of the Environmental Attributes, Owner hereby instructs ESG to prepare and file such documents. (d) Hazardous Materials 13. Governing Law. ESG is not responsible for testing and abatement of hazardous materials such as lead, asbestos, etc. Upon identification of such materials ESG will immediately notify Wicomico County and cease work in the affected areas until the county performs the abatement. This Agreement shall be governed by and construed in accordance with the laws of the State of Maryland without regard to any choice of law principles that would dictate the laws of any other jurisdiction. The parties agree that the exclusive venue for any and all actions related hereto shall be the appropriate Federal or State court located within the State of Maryland. 14 Termination: When the Contractor has not performed or has unsatisfactorily performed one or more material terms ofthe Agreement, the County may terminate the Agreement for default. Upon termination for default, payment may be withheld at the discretion ofthe County. Failure on the part of a Contractor to fulfill the contractual obligations shall be considered just cause for termination of the Agreement. If the damages exceed the undisbursed sums available for compensation, the County shall not be obligated to make any further disbursements hereunder. The Contractor will be paid for work satisfactorily performed prior to termination less any excess costs incurred by the County in re-procuring and completing the work. 15 Notice: Any notice required to be delivered shall be deemed to have been received when the notice has been sent by certified mail, return receipt, overnight carrier, or hand delivered to the following address and individual or at such other address and/or such other individual a party may identify in writing to the other party: FOR THE COUNTY: FOR THE CONTRACTOR: Karen Galindo-White, Account Executive Energy Systems Group, LLC 1099 Winterson Rd Linthicum, MD 21090

7 Telephone: (410) Fax: (410) Indemnification The Contractor shall indemnify and hold harmless the County, its employees, agents and officials from any and all claims, suits, or demands including reasonable attorney fees which may be made against the County, its employees, agents or officials resulting from any breach of contract or negligent or tortious act or omission committed in the performance of the duties imposed by and performed under the terms of this Agreement by the Contractor or anyone under agreement with the Contractor to perform duties under this Agreement. The Contractor shall not be responsible for acts of negligence or willful misconduct committed by the County, its employees, agents and officials Any property or work to be provided by the Contractor under this Agreement will remain at the Contractor s risk until substantial completion. 17 Reports!informationllnspections/and Audits: 17.1 At any time during normal business hours and as often as the County may deem necessary, the Contractor shall, upon three (3) business days notice, make available to and permit inspection by the County, its employees or agents, relevant records, information and documentation the Contractor related to the subject matter of this Agreement that are relevant to determine compliance with this contract, including, but not limited to, all contracts, invoices, payroll, and financial audits. This Agreement is made and entered into in Maryland and is construed under the laws of Maryland. As to Contractor, this Agreement is intended to be a contract under seal and a specialty. of ATTEST: APPROVED AND AGREED TO: Energy Systems Group, Secretary By: Title: ATTEST: APPROVED AND AGREED TO: WICOMICO COUNTY, MARYLAND By: R. Wayne Strasburg Richard M. Pollitt, Jr Director of AdministrationCounty Executive RECOMMENDED FOR APPROVAL: R. Wayne Strasburg Director of Administration

8 APPROVED FOR SUFFICIENCY OF FUNDS: Andrew Mackel Director - Department of Finance APPROVED FOR LEGAL SUFFICIENCY: Edgar A. Baker, Jr County Attorney