03-28-2009 Intergovernmental Agreement Upper ERWA and ERWSDINTERGOVERNMENTAL AGREEMENT
THIS INTERGOVERNMENTAL AGREEMENT ( "Agreement ") is entered into the 28 day of
May, 2009, between the Eagle River Water and Sanitation District ( "ERWSD ") and Town of
Avon ( "Avon ") hereafter also referred to as the "Parties ";
RECITALS
WHEREAS, Avon and ERWSD have a multi -year history of cooperation;
WHEREAS, Avon staff and ERWSD staff have been working collaboratively since February
2008 to evaluate technical options to extract heat from wastewater effluent and other energy
sources and put this heat to beneficial use within the town limits of Avon;
WHEREAS, the Avon and ERWSD jointly prepared and submitted requests for grant funding
from the State of Colorado Governor's Energy Office (GEO) and the Department of Local
Affairs (DOLA) on September 18, 2008 for a project entitled "Avon Community Heat
Recovery Project ";
WHEREAS, Avon and ERWSD jointly hired the engineering expertise of consultant Camp
Dresser and McKee, Inc., who found the project concepts to be technically feasible and who
prepared the preliminary engineering report on which the Project described herein is based,
entitled the "Avon Community Heat Recovery Project: Preliminary Design and Implementation
Plan" (Camp Dresser and McKee, Inc., January 14, 2009);
WHEREAS, Avon and ERWSD were notified by the State of Colorado Governor's Energy
Office (GEO) and the Department of Local Affairs (DOLA) on October 14, 2008 that the Town
of Avon, acting as the "Lead Agency ", was selected to receive $1,500,000.00 in grant funding
for the Avon Community Heat Recovery Project;
WHEREAS, Avon and ERWSD acknowledge that several economic, technical, and cost - sharing
assumptions have changed since the grant applications were submitted on September 18, 2008
for this project;
WHEREAS, Avon and ERWSD mutually desire to allow Avon to accept grant award funds
from GEO and DOLA for the Avon Community Heat Recovery Project with modifications
made to the project scope, schedule and budget as described in Exhibit A herein, and to fund this
project in proportion to the allocations stated herein, and to comply with all requirements stated
in the State of Colorado, Department of Local Affairs, Grant Contract, EIAF #6461 ( "Grant
Contract ");
WHEREAS, Avon and ERWSD now mutually desire to proceed to implement this project and
to jointly share the cost for planning, design, bidding, construction, inspection, start-up, and
testing of the new capital facilities at monetary levels as stated herein;
WHEREAS, Avon, acting as the Lead Agency, expects to incur significant expenses during the
period March 2009 through June 2011 to implement this project; and
WHEREAS, Avon and ERWSD are authorized by Colorado Constitution, Article XIV, Section
Avon -Eagle River Water and Sanitation District
Intergovernmental Agreement re: Heat Recovery Project
18(2)(a) and Section 29 -1 -203, Colorado Revised Statutes, to cooperate and contract with each
other to provide any function, service or facility lawfully authorized to each.
AGREEMENT
NOW, THEREFORE, in consideration of the covenants, conditions and agreements set forth
herein, the Parties agree as follows:
1. GENERAL.
A. Term: This Agreement shall be in full force and effect until 11:59 p.m., December 31,
2049 ( "Term "). Extension of the term of this Agreement is subject to mutual agreement
and approval of annual budget and appropriations by both Parties.
B. Schedule: Both Parties agree that schedule acceleration or delays in the anticipated
design and construction schedule may be necessary in order to better phase the project to
meet the objectives of both parties and of grant funding availability.
C. Ownership Claims: Facilities constructed or installed within ERWSD areas of
operations (including the connections to the existing ERWSD Avon waste water
treatment facility ( "Avon WWTF ") building HVAC system) are and shall remain the sole
and separate property of ERWSD. Facilities constructed by Avon which are located off
the ERWSD Avon WWTF shall be the sole and separate property of Avon. Facilities
constructed on the ERWSD Avon WWTF property and outside the ERWSD areas of
operations (including the heat pump building, all equipment located inside heat pump
building, the piping connections to the effluent outfall, and other system components and
appurtenances) shall be the jointly owned by the ERWSD and Town as common property
( "Common Property ") during the Term of this Agreement. After the expiration of the
Term of this Agreement, the Common Property shall become the property of Avon
provided that Avon removes the Common Property from the ERWSD Avon WWTF
property within one hundred eighty (180) days after the expiration of the Term. Any
Common Property not removed within one hundred eighty (180) days after the expiration
of the Term of this Agreement shall become the property of ERWSD. Upon request,
each Party agrees that it shall execute a bill of sale for the Common Property, or portion
therefore, as is appropriate to document the change of ownership contemplated herein.
D. License Agreement: ERWSD hereby provides a non - exclusive irrevocable license to
Avon for the Term of this Agreement to enter upon the ERWSD Avon WWTF property
for the purpose of installing, constructing, maintaining, operating, and replacing the
Common Property subject to the following conditions:
(i) The construction of the Common Property shall conform to the Scope of Work
attached hereto as Exhibit A.
(ii) Town shall not interfere with the operations of the ERWSD Avon WWTF.
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Intergovernmental Agreement re: Heat Recovery Project
(iii) The use of any construction staging areas on the ERWSD Avon WWTF property
shall be coordinated with and approved by ERWSD.
(iv) Town shall exercise reasonable care to prevent any loss or damage to the ERWSD
Avon WWTF property or facilities.
E. Operating and Management Agreement: Prior to completion of construction of the
Common Property and commencement of heat recovery operations, the Parties agree to
negotiate in good faith a separate operating and management agreement ( "O &M
Agreement') regarding long -term cost - sharing of operations and maintenance (O &M)
costs . In the O &M Agreement the Parties shall agree (1) to operate the system and
dutifully maintain the Common Property system components for a period not less than
the Term of this Agreement, (2) that the annual operation and maintenance costs will be
paid by Avon, subject to annual reimbursement by ERWSD for its share of such expenses
based on the quantity of heat used by ERWSD in comparison to the quantity of heat used
by Avon, subject to a non - appropriation clause; and (3) that the O &M Agreement shall
conform in all material respects to the requirements in the Grant Contract. The Parties
further agree that operation and maintenance shall be performed by Avon.
rR
SCOPE OF SERVICES. In accordance with the terms and provisions of this
Agreement:
A. Avon shall provide administration of professional services contracts, general construction
contracts, and grants associated with the planning, design, bidding, construction, start-up,
and testing of the Avon Community Heat Recovery Facility Project. This administrative
scope is hereafter referred to as the "Service ". The planning, design, bidding,
construction, start-up, and testing of the facilities themselves is hereafter referred to as
"the Project"; details regarding the scope, schedule and budget of the Project are set forth
in Exhibit A.
B. Avon shall have complete control and supervision over all personnel required to
administer and implement the Project, including but not limited to the benefits,
compensation and discharge of direct Avon employees, and contract modifications to
contracted services involved in this Project.
3.
OBLIGATIONS OF AVON. Avon is obligated to provide the following:
A. Dutiful Project Administration: Avon personnel shall dutifully administer professional
services contracts, general construction contracts, consulting contracts, and state grants
involved in any portion of this Project, including executing sound project management
practices and fiduciary oversight of same. Administrative obligations are described as
follows:
(i) Providing bookkeeping, accounting and accounting records and office management
for the Project, including preparation of invoices to ERWSD and grant payment
requests.
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Intergovernmental Agreement re: Heat Recovery Project
(ii) Payment to the professional services companies under contract directly with Avon
for this Project.
(iii) Preparing and retaining all necessary records and documents in accordance with
federal and state guidelines.
(iv) Preparing, maintaining and providing copies of all consultant deliverables and other
relevant documents and reports associated with the Project.
(v) Scheduling project meetings and coordinating site visits to the Avon Wastewater
Treatment Facility site with plant personnel in advance.
B. Dutiful Construction Management: Avon shall designate Town employees and
consultants with appropriate expertise to provide timely, responsive and effective
construction management of the Avon Community Heat Recovery Project. Avon shall
provide contact and background information to ERWSD for each person who shall
perform construction management services, including name, contact information, resume,
availability, and scope of anticipated construction management services. Avon shall
dutifully conduct construction management activities described as follows:
(i) Executing the bidding and award phase. Award shall be made to the lowest
responsive and responsible bidder.
(ii) Coordinate with EWRSD a pre - construction schedule with the awarded contractor
which includes a contractor tentative schedule, form of schedule used, procedure for
transmittals, processing payment requests, critical work sequences, plant operations,
plant site use, plant site safety and chain of communications.
(iii) Managing the construction quality metrics including the submittal tracking and
engineer's approval process, conducting field inspections to verify correctness and
completeness of work, coordinating specialty inspections done by subcontract,
reviewing substitution requests, coordinating vendor training, and delivering O &M
information for new equipment and the system as a whole.
(iv) Managing the construction schedule and providing updated construction schedules
to ERWSD, including monthly review of the contractor's progress in comparison to
submitted construction schedule and evaluation of delay claims.
(v) Managing the construction budget including review, negotiation, and processing of
the contractors pay requests, Requests for Information (RFIs), submittals, change
orders, and claims.
(vi) Executing the close -out portion of the project including assembly of information
needed for one -year certification and releasing retainane.
C. Mechanical System Performance Analysis Avon personnel shall dutifully coordinate
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Intergovernmental Agreement re: Heat Recovery Project
testing and operations to consider the annual cost - effectiveness of the system as
determined from the first twelve- months of operational data. This work shall include
data gathering, data analysis, and report writing, and may also involve modifications to
the PLC and SCADA systems to improve automatic operation. A one -year performance
report shall be prepared by Avon which describes the quantity of heat recovered by
source, quantity of heat used by application, annual cost of heat delivery, and extent of
system losses. This report shall be made available to ERWSD within eighteen months of
Substantial Completion.
D. ERWSD Involvement: Avon shall involve ERWSD staff in the evaluation of draft and
final design deliverables, key system design options, preparation of construction contract
documents, and construction change -order grant applications. ERWSD shall be solely
responsible for making any filings required by the Colorado Department of Public Health
and Environment concerning its Discharge Permit. Avon shall be responsible for
obtaining all other required permits for construction, including building permits, and shall
waive any fees that might otherwise be payable by ERWSD to Avon for such permit or
permits. Involvement is described as follows:
(i) Invitation to meetings with consultants, Town Council, Planning and Zoning
Commission, construction meetings involving plant site activities, meetings with
project staff to review project status, consultant recommendations, or any key
decisions about the Project.
(ii) Referral of potential contractors and sub - contractors considered for contracting by
Avon to ERWSD for review and comment.
(iii) Access to the Project eRoom (an electronic file sharing ftp site) for up to two
ERWSD employees. Final design deliverables and construction submittals will be
posted on this site and available for ERWSD viewing.
(iv) Respond in a timely fashion to any written requests from ERWSD for information,
or for copies of any records or other documents.
(v) Coordinate start-up and testing activities with the ERWSD's plant personnel.
E. Indemnification: To the extent allowed by law, Avon shall hold harmless and indemnify
ERWSD for any claims arising from Avon's administration of the design and
construction services as set forth in this Article 3 and the operation and maintenance of
the Project.
F. Assignment of Claims: Avon, as Owner of the project for construction purposes, shall be
deemed to have assigned to ERWSD all rights, claims, and warranties ( "Claim ") against
third parties in connection with ERWSD portions of the project upon final completion of
the Project. Avon shall execute any assignments or other documents as are requested by
ERWSD in order to facilitate ERWSD's ability to pursue any Claim against a third party.
In the event ERWSD is legally unable to pursue any Claim in connection with its portion
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Intergovernmental Agreement re: Heat Recovery Project
of the project, Avon shall pursue such Claim on behalf of the ERWSD at no cost to
Avon.
G. Bill of Sale: Avon shall execute a bill of sale upon final completion of the Project
conveying to ERWSD the facilities constructed or installed within ERWSD areas of
operations as described in Section I.C. of this Agreement.
4. OBLIGATIONS OF ERWSD. ERWSD is obligated as follows:
A. Participation: ERWSD shall actively participate in the Project by appointing a Project
Manager who timely acts on ERWSD's behalf and is duly responsible to:
(i) Attend project meetings;
(ii) Provide response to requests for information;
(iii) Provide review of consultant - prepared deliverables;
(iv) Coordinate outages at the treatment plant necessary for construction;
(v) Provide review of Avon - prepared deliverables;
(vi) Evaluate construction documents;
(vii) Attend construction meetings;
(viii) Communicate project status with ERWSD staff and Board as appropriate;
(ix) Collaborate on press releases prior to issuance to the media; and,
(x) Negotiate ERWSD requested change orders with the contractor and Avon.
B. Access: ERWSD shall allow access to portions of the Avon Wastewater Treatment
Facility site impacted by the project for specifically authorized members of the project
team. ERWSD shall designate sufficiently sized areas on the plant site for contractor
staging, contractor's trailer, and parking of construction employees.
C. Compensation and Payment: Payment shall be made by ERWSD to Avon in accordance
with Section 5.
5. COMPENSATION. ERWSD shall compensate Avon as follows:
A. Amount: ERWSD shall compensate Avon in the amount of three hundred thirty two
thousand four hundred dollars ($332,400.00), which amount shall be disbursed
proportionately and incrementally by ERWSD to Avon as project expenses are incurred
and are due and payable. Payments by ERWSD shall be made within thirty (30) days of
Avon submitting an invoice and shall accrue interest in accordance with Chapter 3.32 of
the Avon Municipal Code if not paid when due.
B. Authority: ERWSD represents and warrants that ERWSD has made or will make all
appropriations or necessary supplemental appropriations in accordance with state and
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Intergovernmental Agreement re: Heat Recovery Project
local laws and has good and sufficient funds to fulfill its financial obligations as set forth
in Paragraph 5.A and Paragraph 6 of this Agreement, subject to annual appropriations
after the System Commissioning Period Ends for operation and maintenance costs.
C. ERWSD Contribution Cap: The Parties acknowledge that the actual final total project
cost may exceed the estimate used for budget preparation (as shown in Exhibit A). The
Parties agree that in the event that the final total project cost (including Avon's costs for
in -kind services) exceeds four million three hundred twenty -five thousand dollars
($4,325,000.00) through no fault or additive change- orders requested by ERWSD, that
ERWSD's share shall be capped at the not -to- exceed value set forth in Section 5.A.
D. Impact of ERWSD Requested Change Orders: If ERWSD requests or requires a change
to the design or to the construction after the project bid opening (to award a construction
contract), ERWSD agrees to negotiate in good faith with both Avon and the general
construction contractor and fully compensate Avon for the cost of the change requested
by ERWSD.
6. TERMINATION. The parties acknowledge that the purpose of this Agreement involves
Avon contracting for professional services including but not limited to engineering, design, and
permitting services which contract will create financial obligations upon Avon and further
acknowledge that Avon is relying upon the terms of this Agreement to receive timely payment
from ERWSD as provided in Paragraph 5.A. As such, neither Party may terminate this
Agreement during the period from the date the parties execute this Agreement until the System
Commissioning Period Ends, except in the event of a material default as set forth in Paragraph 7.
Thereafter and as shall be provided in the O &M Agreement, the terms and obligations of this
Agreement (except the Ownership Claims, Paragraph 1.C., and License Agreement, Paragraph
1.D, which shall survive) are subject to annual appropriations by the Parties so as to not create a
multiple fiscal year obligation pursuant to Article X, Section 20 of the Colorado Constitution,
notwithstanding any provisions of this Agreement or the O &M Agreement to the contrary.
7. MATERIAL DEFAULT. If any Party fails to materially perform in accordance with
the terms, covenants and conditions of this Agreement or is otherwise in material default of any
of the terms of this Agreement that Party shall be deemed to be in default under this Agreement.
Prior to pursuing termination of this Agreement or any remedies for breach or default, the non-
defaulting Party shall provide written notice to the defaulting Party of the alleged default and the
defaulting Party shall have forty -five (45) days to cure such breach or default, or if the alleged
default cannot be cured within forty -five (45) days the defaulting Party shall provide a written
statement to the non - defaulting Party explaining the reasons for the inability to cure the breach or
default within forty -five (45) days and stating the intention of the defaulting Party to commence
cure of such breach or default within said forty -five (45) days. If the alleged default cannot be
cured within forty -five (45) and the defaulting Party commences to cure the default, the
defaulting Party shall have no more than one hundred twenty (120) days to cure such default. If
the default is not cured within the applicable timeframe, the non - defaulting Party may elect to
terminate this Agreement or may elect to enforce the defaulting Party's obligations hereby by an
action for any equitable remedy, including injunction and /or specific performance, and /or by an
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Intergovernmental Agreement re: Heat Recovery Project
action to recover damages. Each remedy provided for in this Agreement is cumulative and is in
addition to every other remedy provided for in this Agreement or otherwise existing at law, in
equity or by statute.
8. PUBLIC RECORDS. The parties acknowledge that each Party is subject to the
Colorado Open Records Act ( "CORA ") set forth in Article 72 of Title 24, Colorado Revised
Statutes, and that the parties agree to coordinate and cooperate on which documents constitute
public records under CORA.
9. NOTICES. Any statement, notice, demand or communication which one Party may
desire or be required to give to the other Parties shall be in writing and shall be deemed
sufficiently given or rendered if delivered personally, by e -mail, or sent by first -class United
States mail, postage prepaid, addressed as follows:
If to ERWSD Eagle River Water and Sanitation District
846 Forest Road
Vail, CO 81657
Attn: General Manager
d elvin@erwsd.or E -mail
If to Avon: Town of Avon
Department of Finance
PO Box 975
Avon, CO 81620
Attn: Finance Director
swrightgavon.org E -mail
All Parties shall have the right to designate in writing, served as provided above, a
different address to which any notice, demand or communication is to be mailed.
10. MISCELLANEOUS.
A. Validity. If any clause or provision of this Agreement shall be held to be invalid in whole
or in part, then the remaining clauses and provisions, or portions thereof, shall
nevertheless be and remain in full force and effect.
B. Changes. No amendment, alteration, modification of or addition to this Agreement shall
be valid or binding unless expressed in writing and signed by the Parties to be bound
thereby.
C. Timeliness. Time is of the essence with respect to the performance of obligations herein
set forth.
D. Governing Law. This Agreement is governed by and must be construed under the laws
of the State of Colorado.
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Intergovernmental Agreement re: Heat Recovery Project
E. Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original and all of which together shall constitute one
agreement.
F. Facsimile and E -mail Copies. This Agreement and all documents to be executed and
delivered hereunder may be delivered in the form of a facsimile or electronically scanned
and e- mailed copy (e.g., *.pdf file), subsequently confirmed by delivery of the originally
executed paper document.
G. Entire Agreement. This Agreement constitutes the entire agreement between ERWSD
and Avon concerning the subject matter of this Agreement. This Agreement may not be
amended or modified orally, but only by a written agreement executed by both Parties.
H. Recitals. The Recitals stated above are incorporated into this Agreement as material
terms.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
respective dates set forth below to become effective as of the date first written above.
TOWN OF AVON
f
Y'
Ronald C. Wolfe, Mayor Date
EAGLE RIVER WATER AND SANITATION DISTRICT
By:
Dennis Gelvin, General Manager Date
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EXHIBIT A
Scope, Schedule, and Budget of the Project
EXHIBIT A
SCOPE, SCHEDULE, AND BUDGET OF THE
AVON COMMUNITY HEAT RECOVERY PROJECT
SCOPE
The core technical system included in this project is as described for the "Recommended
System: Core Project" on pages 32 through Appendix C of the "Avon Community Heat
Recovery Project: Preliminary Design and Implementation Plan" (Camp Dresser and
McKee, Inc., January 14, 2009). This fundamental description is hereafter referred to as
"The Plan ". The following caveats, comments, or deviations from The Plan govern:
1. The following components act as potential "add -ons" but are not included in the
this Project:
(a) Solar thermal panels, pumps, and associated mechanical appurtenances
at the Avon Wastewater Treatment Facility (Avon WWTF)
(b) Solar thermal panels, pumps, and associated mechanical appurtenances
at the Avon Recreation Center
(c) Electric boiler, sludge pumps, heat exchangers or other modifications to
the ATAD sludge heating and cooling system within the WWTF
(d) In- ground snow melt piping at any location
2. The Parties agree that the "Heat Pump Building" shall be located within
ERWSD's fence line of the Avon WWTF and in close proximity to the water
treatment intake structure and pump building such that sufficient net positive
suction head is provided to gravity flow to the "effluent diversion sump pump"
(e.g., located approximately as shown in Figure 14 of The Plan).
3. The Parties agree that the constructed facility will not result in a consumptive use
of treated effluent and will not involve treatment of the wastewater with the
exception of pumping and cooling. Once heat is extracted from the plant effluent,
it will be returned by gravity flow to the plant outfall.
4. The Parties understand that the degree of effluent cooling which will result from
this new operational facility is unknown at this time but will be determined by
testing during the one year certification period.
5. System components and construction work elements intended to be located inside
the parcel boundaries of the Avon WWTF include:
• New Heat Pump Building (approximately 1040 sf) including a 1.0 MW heat
pump and a 3.5 million BTU per hour natural gas boiler
• Connections to existing plant HVAC system heat exchanger, pumps, valves,
and associated appurtenances
• Buried and Exposed Piping (water, natural gas,), valving, instrumentation and
associated appurtenances
• Piping support and insulation systems
• Modifications to the plant outfall gravity piping system, including the
installation of two new manholes
• Modifications to the plant electrical service and motor control cabinets to
power all new on -site equipment
• Site restoration (e.g., re- seeding, asphalt patching)
6. System components and construction work elements intended to be located
outside of the parcel boundaries of the Avon WWTF are as follows:
• New building (located near the Recreation Center) housing piping, valuing,
snow melt heat exchanger, and appurtenances, instrumentation, controls, and
computerized control system.
• Connections to existing Recreation Center water heating system, including
installation of heat exchangers, pumps, valves, and associated appurtenances.
• Supervisory control data acquisition system (SCADA),
• Programmable logic controller (PLC)
• Programmable human - machine interface (HMI)
• Pumps, valves, and associated appurtenances
• Buried and Exposed Piping (water, natural gas,), valving, instrumentation and
associated appurtenances
• Borings and pipe casing placed under the Union Pacific Railroad in new
easement
• Piping support and insulation systems
• Modifications to Avon's electrical service to power all new equipment located
off the Avon WWTF property
• Site restoration (e.g., re- seeding, asphalt patching)
7. The Parties understand that The Plan is equivalent to about a 10% engineering
design level and as such, the exact content and cost of the facilities to be designed
and constructed are not fully known at the time that this IGA has been executed.
The Parties expect that the exact content and location of facilities to be
constructed will be better known upon execution of the next phase of engineering
work to be performed by the Parties in 2009 and will be fully known upon
Substantial Completion of construction.
SCHEDULE
Key milestones in the anticipated project schedule are listed in Table 1. This schedule
has been prepared for this Core Project (i.e., Phase 1 only). Subsequent phases are
subject to budget availability and further negotiation.
Table 1. Project Schedule Milestones
On or Before Date
Milestone
5/28/2009
Avon Executes EIAF/DOLA contract
5/28/2009
Avon & District Execute Intergovernmental Agreement
6/12/2009
Avon Executes Design Contract
10/23/2009
Design Complete
11/12/2009
Bid Advertisement
12/14/2009
Open Bids
1/4/2010
Award Construction Contract
3/1/2010
Initiate Construction
11/15/2010
Beneficial Occupancy (commissioning begins)
12/31/2010
Substantial Completion of Project
4/15/2011
System Commissioning Period Ends
BUDGET
The estimated project budget is as shown in Table 2.
Table 2. Estimated Project Budget*
EXPENDITURES
DOLA
Budget
% of Total Revenues
EIAF (DOLA )
Category
# Expenditures
Budget
Example Expenditures a
57.6%
ERWSD
$ 332,400.00
Design, bid assistance, engineering assistance during
1
A/E Services
. --
$ 720,000
_ .. _ __ --
construction and start-up testing
------ _ -__.
Railroad easement acquisition negotitaions, materials
2
Consultant Services
$ 20,000
testing, survey
3
Facility Construction
$ 3,565 231
General construction contract
4
Real Property Acquisitior
$ 20,000
Railroad easement acquisition
Subtotal Direct Costs
$ 4,325,231
For project management, grant administration,
permitting, engineering, legal, construction
-
Avon in -kind services
$ 675,000
management, field inspection.
Total
$ 5,000,231
REVENUES
Revenue Sources
Budget
% of Total Revenues
EIAF (DOLA )
$ 1,500,000.00
34.7%
Avon
$ 2,492,831.00
57.6%
ERWSD
$ 332,400.00
7.7%
TOTAL
$ 4,325.213.00
100%
*Budget Assumptions:
1. Schedule as shown in Table 1. EIAF contract close -out by 4/15/2011.
2. Traditional design- bid -build project delivery method.
3. The locations for system components shall be constructed as listed in this
Exhibit A.
4. A/E Services include professional services for design, bid assistance, and
engineering assistance during construction, start-up, and commissioning.
5. Consultant services are anticipated for permit assistance to obtain
easement from Union Pacific Railroad and materials testing and
specialized inspection during construction.
6. Facility construction costs would include all necessary civil, mechanical,
electrical, structural, instrumentation, controls, computerized monitoring
and controls, software, for fully- functional installed system.
7. Real Property Acquisition is an estimated allowance to obtain permanent
easement from Union Pacific Railroad for pipe crossings. No other real
property is anticipated.
END EXHIBIT A
EXHIBIT B
EIAF REQUEST FOR PAYMENT FORM
t
L I E
I-
A
L'L
END EXHIBIT B
INTERGOVERNMENTAL AGREEMENT
THIS INTERGOVERNMENTAL AGREEMENT ( "Agreement") is entered into the 28 day of
May, 2009, between the Eagle River Water and Sanitation District ( "ERWSD ") and Town of
Avon ( "Avon ") hereafter also referred to as the "Parties ";
RECITALS
WHEREAS, Avon and ERWSD have a multi -year history of cooperation;
WHEREAS, Avon staff and ERWSD staff have been working collaboratively since February
2008 to evaluate technical options to extract heat from wastewater effluent and other energy
sources and put this heat to beneficial use within the town limits of Avon;
WHEREAS, the Avon and ERWSD jointly prepared and submitted requests for grant funding
from the State of Colorado Governor's Energy Office (GEO) and the Department of Local
Affairs (DOLA) on September 18, 2008 for a project entitled "Avon Community Heat
Recovery Project ";
WHEREAS, Avon and ERWSD jointly hired the engineering expertise of consultant Camp
Dresser and McKee, Inc., who found the project concepts to be technically feasible and who
prepared the preliminary engineering report on which the Project described herein is based,
entitled the "Avon Community Heat Recovery Project: Preliminary Design and Implementation
Plan" (Camp Dresser and McKee, Inc., January 14, 2009);
WHEREAS, Avon and ERWSD were notified by the State of Colorado Governor's Energy
Office (GEO) and the Department of Local Affairs (DOLA) on October 14, 2008 that the Town
of Avon, acting as the "Lead Agency ", was selected to receive $1,500,000.00 in grant funding
for the Avon Community Heat Recovery Project;
WHEREAS, Avon and ERWSD acknowledge that several economic, technical, and cost - sharing
assumptions have changed since the grant applications were submitted on September 18, 2008
for this project;
WHEREAS, Avon and ERWSD mutually desire to allow Avon to accept grant award funds
from GEO and DOLA for the Avon Community Heat Recovery Project with modifications
made to the project scope, schedule and budget as described in Exhibit A herein, and to fund this
project in proportion to the allocations stated herein, and to comply with all requirements stated
in the State of Colorado, Department of Local Affairs, Grant Contract, EIAF #6461 ( "Grant
Contract ");
WHEREAS, Avon and ERWSD now mutually desire to proceed to implement this project and
to jointly share the cost for planning, design, bidding, construction, inspection, start-up, and
testing of the new capital facilities at monetary levels as stated herein;
WHEREAS, Avon, acting as the Lead Agency, expects to incur significant expenses during the
period March 2009 through June 2011 to implement this project; and
WHEREAS, Avon and ERWSD are authorized by Colorado Constitution, Article XIV, Section
Avon -Eagle River Water and Sanitation District
Intergovernmental Agreement re: Heat Recovery Project
18(2)(a) and Section 29 -1 -203, Colorado Revised Statutes, to cooperate and contract with each
other to provide any function, service or facility lawfully authorized to each.
AGREEMENT
NOW, THEREFORE, in consideration of the covenants, conditions and agreements set forth
herein, the Parties agree as follows:
1. GENERAL.
A. Term: This Agreement shall be in full force and effect until 11:59 p.m., December 31,
2049 ( "Term "). Extension of the term of this Agreement is subject to mutual agreement
and approval of annual budget and appropriations by both Parties.
B. Schedule: Both Parties agree that schedule acceleration or delays in the anticipated
design and construction schedule may be necessary in order to better phase the project to
meet the objectives of both parties and of grant funding availability.
C. Ownership Claims: Facilities constructed or installed within ERWSD areas of
operations (including the connections to the existing ERWSD Avon waste water
treatment facility ( "Avon WWTF ") building HVAC system) are and shall remain the sole
and separate property of ERWSD. Facilities constructed by Avon which are located off
the ERWSD Avon WWTF shall be the sole and separate property of Avon. Facilities
constructed on the ERWSD Avon WWTF property and outside the ERWSD areas of
operations (including the heat pump building, all equipment located inside heat pump
building, the piping connections to the effluent outfall, and other system components and
appurtenances) shall be the jointly owned by the ERWSD and Town as common property
( "Common Property ") during the Term of this Agreement. After the expiration of the
Term of this Agreement, the Common Property shall become the property of Avon
provided that Avon removes the Common Property from the ERWSD Avon WWTF
property within one hundred eighty (180) days after the expiration of the Term. Any
Common Property not removed within one hundred eighty (18 0) days after the expiration
of the Term of this Agreement shall become the property of ERWSD. Upon request,
each Party agrees that it shall execute a bill of sale for the Common Property, or portion
therefore, as is appropriate to document the change of ownership contemplated herein.
D. License Agreement: ERWSD hereby provides a non - exclusive irrevocable license to
Avon for the Term of this Agreement to enter upon the ERWSD Avon WWTF property
for the purpose of installing, constructing, maintaining, operating, and replacing the
Common Property subject to the following conditions:
(i) The construction of the Common Property shall conform to the Scope of Work
attached hereto as Exhibit A.
(ii) Town shall not interfere with the operations of the ERWSD Avon WWTF.
Page 2 of 16
V10 ejh 4 -27 -09
Avon -Eagle River Water and Sanitation District
Intergovernmental Agreement re: Heat Recovery Project
(iii) The use of any construction staging areas on the ERWSD Avon WWTF property
shall be coordinated with and approved by ERWSD.
(iv) Town shall exercise reasonable care to prevent any loss or damage to the ERWSD
Avon WWTF property or facilities.
E. Operating and Management Agreement: Prior to completion of construction of the
Common Property and commencement of heat recovery operations, the Parties agree to
negotiate in good faith a separate operating and management agreement ( "O &M
Agreement ") regarding long -term cost - sharing of operations and maintenance (O &M)
costs . In the O &M Agreement the Parties shall agree (1) to operate the system and
dutifully maintain the Common Property system components for a period not less than
the Term of this Agreement, (2) that the annual operation and maintenance costs will be
paid by Avon, subject to annual reimbursement by ERWSD for its share of such expenses
based on the quantity of heat used by ERWSD in comparison to the quantity of heat used
by Avon, subject to a non - appropriation clause; and (3) that the O &M Agreement shall
conform in all material respects to the requirements in the Grant Contract. The Parties
further agree that operation and maintenance shall be performed by Avon.
2. SCOPE OF SERVICES. In accordance with the terms and provisions of this
Agreement:
A. Avon shall provide administration of professional services contracts, general construction
contracts, and grants associated with the planning, design, bidding, construction, start-up,
and testing of the Avon Community Heat Recovery Facility Project. This administrative
scope is hereafter referred to as the "Service ". The planning, design, bidding,
construction, start-up, and testing of the facilities themselves is hereafter referred to as
"the Project"; details regarding the scope, schedule and budget of the Project are set forth
in Exhibit A.
B. Avon shall have complete control and supervision over all personnel required to
administer and implement the Project, including but not limited to the benefits,
compensation and discharge of direct Avon employees, and contract modifications to
contracted services involved in this Project.
3. OBLIGATIONS OF AVON. Avon is obligated to provide the following:
A. Dutiful Project Administration: Avon personnel shall dutifully administer professional
services contracts, general construction contracts, consulting contracts, and state grants
involved in any portion of this Project, including executing sound project management
practices and fiduciary oversight of same. Administrative obligations are described as
follows:
(i) Providing bookkeeping, accounting and accounting records and office management
for the Project, including preparation of invoices to ERWSD and grant payment
requests.
Page 3 of 16
V10 eih 4 -27 -09
Avon -Eagle River Water and Sanitation District
Intergovernmental Agreement re: Heat Recovery Project
(ii) Payment to the professional services companies under contract directly with Avon
for this Project.
(iii) Preparing and retaining all necessary records and documents in accordance with
federal and state guidelines.
(iv) Preparing, maintaining and providing copies of all consultant deliverables and other
relevant documents and reports associated with the Project.
(v) Scheduling project meetings and coordinating site visits to the Avon Wastewater
Treatment Facility site with plant personnel in advance.
B. Dutiful Construction Management: Avon shall designate Town employees and
consultants with appropriate expertise to provide timely, responsive and effective
construction management of the Avon Community Heat Recovery Project. Avon shall
provide contact and background information to ERWSD for each person who shall
perform construction management services, including name, contact information, resume,
availability, and scope of anticipated construction management services. Avon shall
dutifully conduct construction management activities described as follows:
(i) Executing the bidding and award phase. Award shall be made to the lowest
responsive and responsible bidder.
(ii) Coordinate with EWRSD a pre - construction schedule with the awarded contractor
which includes a contractor tentative schedule, form of schedule used, procedure for
transmittals, processing payment requests, critical work sequences, plant operations,
plant site use, plant site safety and chain of communications.
(iii) Managing the construction quality metrics including the submittal tracking and
engineer's approval process, conducting field inspections to verify correctness and
completeness of work, coordinating specialty inspections done by subcontract,
reviewing substitution requests, coordinating vendor training, and delivering O &M
information for new equipment and the system as a whole.
(iv) Managing the construction schedule and providing updated construction schedules
to ERWSD, including monthly review of the contractor's progress in comparison to
submitted construction schedule and evaluation of delay claims.
(v) Managing the construction budget including review, negotiation, and processing of
the contractors pay requests, Requests for Information (RFIs), submittals, change
orders, and claims.
(vi) Executing the close -out portion of the project including assembly of information
needed for one -year certification and releasing retainage.
C. Mechanical System Performance Analysis Avon personnel shall dutifully coordinate
Page 4 of 16
V10 ejh 4 -27 -09
Avon -Eagle River Water and Sanitation District
Intergovernmental Agreement re: Heat Recovery Project
testing and operations to consider the annual cost - effectiveness of the system as
determined from the first twelve- months of operational data. This work shall include
data gathering, data analysis, and report writing, and may also involve modifications to
the PLC and SCADA systems to improve automatic operation. A one -year performance
report shall be prepared by Avon which describes the quantity of heat recovered by
source, quantity of heat used by application, annual cost of heat delivery, and extent of
system losses. This report shall be made available to ERWSD within eighteen months of
Substantial Completion.
D. ERWSD Involvement: Avon shall involve ERWSD staff in the evaluation of draft and
final design deliverables, key system design options, preparation of construction contract
documents, and construction change -order grant applications. ERWSD shall be solely
responsible for making any filings required by the Colorado Department of Public Health
and Environment concerning its Discharge Permit. Avon shall be responsible for
obtaining all other required permits for construction, including building permits, and shall
waive any fees that might otherwise be payable by ERWSD to Avon for such permit or
permits. Involvement is described as follows:
(i) Invitation to meetings with consultants, Town Council, Planning and Zoning
Commission, construction meetings involving plant site activities, meetings with
project staff to review project status, consultant recommendations, or any key
decisions about the Project.
(ii) Referral of potential contractors and sub - contractors considered for contracting by
Avon to ERWSD for review and comment.
(iii) Access to the Project eRoom (an electronic file sharing ftp site) for up to two
ERWSD employees. Final design deliverables and construction submittals will be
posted on this site and available for ERWSD viewing.
(iv) Respond in a timely fashion to any written requests from ERWSD for information,
or for copies of any records or other documents.
(v) Coordinate start-up and testing activities with the ERWSD's plant personnel.
E. Indemnification: To the extent allowed by law, Avon shall hold harmless and indemnify
ERWSD for any claims arising from Avon's administration of the design and
construction services as set forth in this Article 3 and the operation and maintenance of
the Project.
F. Assignment of Claims: Avon, as Owner of the project for construction purposes, shall be
deemed to have assigned to ERWSD all rights, claims, and warranties ( "Claim ") against
third parties in connection with ERWSD portions of the project upon final completion of
the Project. Avon shall execute any assignments or other documents as are requested by
ERWSD in order to facilitate ERWSD's ability to pursue any Claim against a third party.
In the event ERWSD is legally unable to pursue any Claim in connection with its portion
Page 5 of 16
V10 ejh 4 -27 -09
Avon -Eagle River Water and Sanitation District
Intergovernmental Agreement re: Heat Recovery Project
of the project, Avon shall pursue such Claim on behalf of the ERWSD at no cost to
Avon.
G. Bill of Sale: Avon shall execute a bill of sale upon final completion of the Project
conveying to ERWSD the facilities constructed or installed within ERWSD areas of
operations as described in Section I.C. of this Agreement.
4. OBLIGATIONS OF ERWSD. ERWSD is obligated as follows:
A. Participation: ERWSD shall actively participate in the Project by appointing a Project
Manager who timely acts on ERWSD's behalf and is duly responsible to:
(i) Attend project meetings;
(ii) Provide response to requests for information;
(iii) Provide review of consultant - prepared deliverables;
(iv) Coordinate outages at the treatment plant necessary for construction;
(v) Provide review of Avon - prepared deliverables;
(vi) Evaluate construction documents;
(vii) Attend construction meetings;
(viii) Communicate project status with ERWSD staff and Board as appropriate;
(ix) Collaborate on press releases prior to issuance to the media; and,
(x) Negotiate ERWSD requested change orders with the contractor and Avon.
B. Access: ERWSD shall allow access to portions of the Avon Wastewater Treatment
Facility site impacted by the project for specifically authorized members of the project
team. ERWSD shall designate sufficiently sized areas on the plant site for contractor
staging, contractor's trailer, and parking of construction employees.
C. Compensation and Payment: Payment shall be made by ERWSD to Avon in accordance
with Section 5.
5. COMPENSATION. ERWSD shall compensate Avon as follows:
A. Amount: ERWSD shall compensate Avon in the amount of three hundred thirty two
thousand four hundred dollars ($332,400.00), which amount shall be disbursed
proportionately and incrementally by ERWSD to Avon as project expenses are incurred
and are due and payable. Payments by ERWSD shall be made within thirty (30) days of
Avon submitting an invoice and shall accrue interest in accordance with Chapter 3.32 of
the Avon Municipal Code if not paid when due.
B. Authority: ERWSD represents and warrants that ERWSD has made or will make all
appropriations or necessary supplemental appropriations in accordance with state and
Page 6 of 16
V10 ejh 4 -27 -09
Avon -Eagle River Water and Sanitation District
Intergovernmental Agreement re: Heat Recovery Project
local laws and has good and sufficient funds to fulfill its financial obligations as set forth
in Paragraph 5.A and Paragraph 6 of this Agreement, subject to annual appropriations
after the System Commissioning Period Ends for operation and maintenance costs.
C. ERWSD Contribution Cap: The Parties acknowledge that the actual final total project
cost may exceed the estimate used for budget preparation (as shown in Exhibit A). The
Parties agree that in the event that the final total project cost (including Avon's costs for
in -kind services) exceeds four million three hundred twenty -five thousand dollars
($4,325,000.00) through no fault or additive change- orders requested by ERWSD, that
ERWSD's share shall be capped at the not -to- exceed value set forth in Section 5.A.
D. Impact of ERWSD Requested Change Orders: If ERWSD requests or requires a change
to the design or to the construction after the project bid opening (to award a construction
contract), ERWSD agrees to negotiate in good faith with both Avon and the general
construction contractor and fully compensate Avon for the cost of the change requested
by ERWSD.
6. TERMINATION. The parties acknowledge that the purpose of this Agreement involves
Avon contracting for professional services including but not limited to engineering, design, and
permitting services which contract will create financial obligations upon Avon and further
acknowledge that Avon is relying upon the terms of this Agreement to receive timely payment
from ERWSD as provided in Paragraph 5.A. As such, neither Party may terminate this
Agreement during the period from the date the parties execute this Agreement until the System
Commissioning Period Ends, except in the event of a material default as set forth in Paragraph 7.
Thereafter and as shall be provided in the O &M Agreement, the terms and obligations of this
Agreement (except the Ownership Claims, Paragraph 1.C., and License Agreement, Paragraph
1.D, which shall survive) are subject to annual appropriations by the Parties so as to not create a
multiple fiscal year obligation pursuant to Article X, Section 20 of the Colorado Constitution,
notwithstanding any provisions of this Agreement or the O &M Agreement to the contrary.
7. MATERIAL DEFAULT. If any Party fails to materially perform in accordance with
the terms, covenants and conditions of this Agreement or is otherwise in material default of any
of the terms of this Agreement that Party shall be deemed to be in default under this Agreement.
Prior to pursuing termination of this Agreement or any remedies for breach or default, the non-
defaulting Party shall provide written notice to the defaulting Party of the alleged default and the
defaulting Party shall have forty -five (45) days to cure such breach or default, or if the alleged
default cannot be cured within forty -five (45) days the defaulting Party shall provide a written
statement to the non - defaulting Party explaining the reasons for the inability to cure the breach or
default within forty -five (45) days and stating the intention of the defaulting Party to commence
cure of such breach or default within said forty -five (45) days. If the alleged default cannot be
cured within forty -five (45) and the defaulting Party commences to cure the default, the
defaulting Party shall have no more than one hundred twenty (120) days to cure such default. If
the default is not cured within the applicable timeframe, the non - defaulting Party may elect to
terminate this Agreement or may elect to enforce the defaulting Party's obligations hereby by an
action for any equitable remedy, including injunction and /or specific performance, and /or by an
Page 7 of 16
V10 ejh 4 -27 -09
Avon -Eagle River Water and Sanitation District
Intergovernmental Agreement re: Heat Recovery Project
action to recover damages. Each remedy provided for in this Agreement is cumulative and is in
addition to every other remedy provided for in this Agreement or otherwise existing at law, in
equity or by statute.
8. PUBLIC RECORDS. The parties acknowledge that each Party is subject to the
Colorado Open Records Act ( "CORA ") set forth in Article 72 of Title 24, Colorado Revised
Statutes, and that the parties agree to coordinate and cooperate on which documents constitute
public records under CORA.
9. NOTICES. Any statement, notice, demand or communication which one Party may
desire or be required to give to the other Parties shall be in writing and shall be deemed
sufficiently given or rendered if delivered personally, by e -mail, or sent by first -class United
States mail, postage prepaid, addressed as follows:
If to ERWSD Eagle River Water and Sanitation District
846 Forest Road
Vail, CO 81657
Attn: General Manager
d elvinkerwsd.org E -mail
If to Avon: Town of Avon
Department of Finance
PO Box 975
Avon, CO 81620
Attn: Finance Director
swrightgavon.org E -mail
All Parties shall have the right to designate in writing, served as provided above, a
different address to which any notice, demand or communication is to be mailed.
10. MISCELLANEOUS.
A. Validity. If any clause or provision of this Agreement shall be held to be invalid in whole
or in part, then the remaining clauses and provisions, or portions thereof, shall
nevertheless be and remain in full force and effect.
B. Changes. No amendment, alteration, modification of or addition to this Agreement shall
be valid or binding unless expressed in writing and signed by the Parties to be bound
thereby.
C. Timeliness. Time is of the essence with respect to the performance of obligations herein
set forth.
D. Governing Law. This Agreement is governed by and must be construed under the laws
of the State of Colorado.
Page 8 of 16
V10 eih 4 -27 -09
Avon -Eagle River Water and Sanitation District
Intergovernmental Agreement re: Heat Recovery Project
E. Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original and all of which together shall constitute one
agreement.
F. Facsimile and E -mail Copies. This Agreement and all documents to be executed and
delivered hereunder may be delivered in the form of a facsimile or electronically scanned
and e- mailed copy (e.g., *.pdf file), subsequently confirmed by delivery of the originally
executed paper document.
G. Entire Agreement. This Agreement constitutes the entire agreement between ERWSD
and Avon concerning the subject matter of this Agreement. This Agreement may not be
amended or modified orally, but only by a written agreement executed by both Parties.
H. Recitals. The Recitals stated above are incorporated into this Agreement as material
terms.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
respective dates set forth below to become effective as of the date first written above.
N or s
TOWN OF AVON
By'f � , C Attest
Ronald C. Wolfe, Mayor Date P ty 0
EAGLE RIVER WATER AND SANITATION DISTRICT
I
Dennis Gelvin, General Manager
Date
Page 9 of 16
V10 ejh 4 -27 -09
EXHIBIT A
Scope, Schedule, and Budget of the Project
EXHIBIT A
SCOPE, SCHEDULE, AND BUDGET OF THE
AVON COMMUNITY HEAT RECOVERY PROJECT
SCOPE
The core technical system included in this project is as described for the "Recommended
System: Core Project" on pages 32 through Appendix C of the "Avon Community Heat
Recovery Project: Preliminary Design and Implementation Plan" (Camp Dresser and
McKee, Inc., January 14, 2009). This fundamental description is hereafter referred to as
"The Plan ". The following caveats, comments, or deviations from The Plan govern:
The following components act as potential "add -ons" but are not included in the
this Project:
(a) Solar thermal panels, pumps, and associated mechanical appurtenances
at the Avon Wastewater Treatment Facility (Avon WWTF)
(b) Solar thermal panels, pumps, and associated mechanical appurtenances
at the Avon Recreation Center
(c) Electric boiler, sludge pumps, heat exchangers or other modifications to
the ATAD sludge heating and cooling system within the WWTF
(d) In- ground snow melt piping at any location
2. The Parties agree that the "Heat Pump Building" shall be located within
ERWSD's fence line of the Avon WWTF and in close proximity to the water
treatment intake structure and pump building such that sufficient net positive
suction head is provided to gravity flow to the "effluent diversion sump pump"
(e.g., located approximately as shown in Figure 14 of The Plan).
3. The Parties agree that the constructed facility will not result in a consumptive use
of treated effluent and will not involve treatment of the wastewater with the
exception of pumping and cooling. Once heat is extracted from the plant effluent,
it will be returned by gravity flow to the plant outfall.
4. The Parties understand that the degree of effluent cooling which will result from
this new operational facility is unknown at this time but will be determined by
testing during the one year certification period.
5. System components and construction work elements intended to be located inside
the parcel boundaries of the Avon WWTF include:
• New Heat Pump Building (approximately 1040 sf) including a 1.0 MW heat
pump and a 3.5 million BTU per hour natural gas boiler
• Connections to existing plant HVAC system heat exchanger, pumps, valves,
and associated appurtenances
• Buried and Exposed Piping (water, natural gas,), valuing, instrumentation and
associated appurtenances
• Piping support and insulation systems
• Modifications to the plant outfall gravity piping system, including the
installation of two new manholes
• Modifications to the plant electrical service and motor control cabinets to
power all new on -site equipment
• Site restoration (e.g., re- seeding, asphalt patching)
6. System components and construction work elements intended to be located
outside of the parcel boundaries of the Avon WWTF are as follows:
• New building (located near the Recreation Center) housing piping, valving,
snow melt heat exchanger, and appurtenances, instrumentation, controls, and
computerized control system.
• Connections to existing Recreation Center water heating system, including
installation of heat exchangers, pumps, valves, and associated appurtenances.
• Supervisory control data acquisition system (SCADA),
• Programmable logic controller (PLC)
• Programmable human - machine interface (HMI)
• Pumps, valves, and associated appurtenances
• Buried and Exposed Piping (water, natural gas,), valuing, instrumentation and
associated appurtenances
• Borings and pipe casing placed under the Union Pacific Railroad in new
easement
• Piping support and insulation systems
• Modifications to Avon's electrical service to power all new equipment located
off the Avon WWTF property
• Site restoration (e.g., re- seeding, asphalt patching)
7. The Parties understand that The Plan is equivalent to about a 10% engineering
design level and as such, the exact content and cost of the facilities to be designed
and constructed are not fully known at the time that this IGA has been executed.
The Parties expect that the exact content and location of facilities to be
constructed will be better known upon execution of the next phase of engineering
work to be performed by the Parties in 2009 and will be fully known upon
Substantial Completion of construction.
SCHEDULE
Key milestones in the anticipated project schedule are listed in Table 1. This schedule
has been prepared for this Core Project (i.e., Phase 1 only). Subsequent phases are
subject to budget availability and further negotiation.
Table 1. Project Schedule Milestones
On or Before Date
Milestone
5/28/2009
Avon Executes EIAF/DOLA contract
5/28/2009
Avon & District Execute Intergovernmental Agreement
6/12/2009
Avon Executes Design Contract
10/23/2009
Design Complete
11/12/2009
Bid Advertisement
12/14/2009
Open Bids
1/4/2010
Award Construction Contract
3/1/2010
Initiate Construction
11/15/2010
Beneficial Occupancy (commissioning begins)
12/31/2010
Substantial Completion of Project
4/15/2011
System Commissioning Period Ends
BUDGET
The estimated project budget is as shown in Table 2.
Table 2. Estimated Project Budget*
EXPENDITURES
DOLA
Budget
% of Total Revenues
EIAF DOLA
$ 1,500,000.00
Category
# Expenditures
$ 2,492,831.00
Budget
Example Expenditures o
$ 332,400.00
7.7%
TOTAL
$ 4,325.213.00
Design, bid assistance, engineering assistance during
1
A/E Services
$
720,000
construction and start-up testing
Railroad easement acquisition negotitaions, materials
2
Consultant Services
$
20,000
testing, survey
3
Facility Construction
$
3,565,2 31
General construction contract
4
Real Property Acquisitior
$
20,000
Railroad easement acquisition
Subtotal Direct Costs
$
4,325,231
For project management, grant administration,
permitting, engineering, legal, construction
-
Avon in -kind services
$
675,000
management, field inspection.
Total
$
5,000,231
REVENUES
Revenue Sources
Budget
% of Total Revenues
EIAF DOLA
$ 1,500,000.00
34.7%
Avon
$ 2,492,831.00
57.6%
ERWSD
$ 332,400.00
7.7%
TOTAL
$ 4,325.213.00
100%
*Budget Assumptions:
1. Schedule as shown in Table 1. EIAF contract close -out by 4/15/2011.
2. Traditional design- bid -build project delivery method.
3. The locations for system components shall be constructed as listed in this
Exhibit A.
4. A/E Services include professional services for design, bid assistance, and
engineering assistance during construction, start-up, and commissioning.
5. Consultant services are anticipated for permit assistance to obtain
easement from Union Pacific Railroad and materials testing and
specialized inspection during construction.
6. Facility construction costs would include all necessary civil, mechanical,
electrical, structural, instrumentation, controls, computerized monitoring
and controls, software, for fully - functional installed system.
7. Real Property Acquisition is an estimated allowance to obtain permanent
easement from Union Pacific Railroad for pipe crossings. No other real
property is anticipated.
END EXHIBIT A
EXHIBIT B
EIAF REQUEST FOR PAYMENT FORM
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END EXHIBIT B
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END EXHIBIT B
INTERGOVERNMENTAL AGREEMENT
THIS INTERGOVERNMENTAL AGREEMENT ( "Agreement ") is entered into the 28 day of
May, 2009, between the Eagle River Water and Sanitation District ( "ERWSD ") and Town of
Avon ( "Avon ") hereafter also referred to as the "Parties ";
RECITALS
WHEREAS, Avon and ERWSD have a multi -year history of cooperation;
WHEREAS, Avon staff and ERWSD staff have been working collaboratively since February
2008 to evaluate technical options to extract heat from wastewater effluent and, other energy
sources and put this heat to beneficial use within the town limits of Avon;
WHEREAS, the Avon and ERWSD jointly prepared and submitted requests for grant funding
from the State of Colorado Governor's Energy Office (GEO) and the Department of Local
Affairs (DOLA) on September 18, 2008 for a project entitled "Avon Community Heat
Recovery Project";
WHEREAS, Avon and ERWSD jointly hired the engineering expertise of consultant Camp
Dresser and McKee, Inc., who found the project concepts to be technically feasible and who
prepared the preliminary engineering report on which the Project described herein is based,
entitled the "Avon Community Heat Recovery Project: Preliminary Design and Implementation
Plan" (Camp Dresser and McKee, Inc., January 14, 2009);
WHEREAS, Avon and ERWSD were notified by the State of Colorado Governor's Energy
Office (GEO) and the Department of Local Affairs (DOLA) on October 14, 2008 that the Town
of Avon, acting as the "Lead Agency ", was selected to receive $1,500,000.00 in grant funding
for the Avon Community Heat Recovery Project;
WHEREAS, Avon and ERWSD acknowledge that several economic, technical, and cost - sharing
assumptions have changed since the grant applications were submitted on September 18, 2008
for this project;
WHEREAS, Avon and ERWSD mutually desire to allow Avon to accept grant award funds
from GEO and DOLA for the Avon Community Heat Recovery Project with modifications
made to the project scope, schedule and budget as described in Exhibit A herein, and to fund this
project in proportion to the allocations stated herein, and to comply with all requirements stated
in the State of Colorado, Department of Local Affairs, Grant Contract, EIAF #6461 ( "Grant
Contract ");
WHEREAS, Avon and ERWSD now mutually desire to proceed to implement this project and
to jointly share the cost for planning, design, bidding, construction, inspection, start-up, and
testing of the new capital facilities at monetary levels as stated herein;
WHEREAS, Avon, acting as the Lead Agency, expects to incur significant expenses during the
period March 2009 through June 2011 to implement this project; and
WHEREAS, Avon and ERWSD are authorized by Colorado Constitution, Article XIV, Section
Avon -Eagle River Water and Sanitation District
Intergovernmental Agreement re: Heat Recovery Project
18(2)(a) and Section 29 -1 -203, Colorado Revised Statutes, to cooperate and contract with each
other to provide any function, service or facility lawfully authorized to each.
AGREEMENT
NOW, THEREFORE, in consideration of the covenants, conditions and agreements set forth
herein, the Parties agree as follows:
1. GENERAL.
A. Term: This Agreement shall be in full force and effect until 11:59 p.m., December 31,
2029 ( "Term "). Extension of the term of this Agreement is subject to mutual agreement
and approval of annual budget and appropriations by both Parties.
B. Schedule: Both Parties agree that schedule acceleration or delays in the anticipated
design and construction schedule may be necessary in order to better phase the project to
meet the objectives of both parties and of grant funding availability.
C. Ownership Claims: Facilities constructed or installed within ERWSD areas of
operations (including the connections to the existing ERWSD Avon waste water
treatment facility ( "Avon WWTF ") building HVAC system) are and shall remain the sole
and separate property of ERWSD. Facilities constructed by Avon which are located off
the ERWSD Avon WWTF shall be the sole and separate property of Avon. Facilities
constructed on the ERWSD Avon WWTF property and outside the ERWSD areas of
operations (including the heat pump building, all equipment located inside heat pump
building, the piping connections to the effluent outfall, and other system components and
appurtenances) shall be the jointly owned by the ERWSD and Town as common property
( "Common Property ") during the Term of this Agreement. After the expiration of the
Term of this Agreement, the Common Property shall become the property of Avon
provided that Avon removes the Common Property from the ERWSD Avon WWTF
property within one hundred eighty (180) days after the expiration of the Term. Any
Common Property not removed within one hundred eighty (180) days after the expiration
of the Term of this Agreement shall become the property of ERWSD. Upon request,
each Party agrees that it shall execute a bill of sale for the Common Property, or portion
therefore, as is appropriate to document the change of ownership contemplated herein.
D. License Agreement: ERWSD hereby provides a non - exclusive irrevocable license to
Avon for the Term of this Agreement to enter upon the ERWSD Avon WWTF property
for the purpose of installing, constructing, maintaining, operating, and replacing the
Common Property subject to the following conditions:
(i) The construction of the Common Property shall conform to the Scope of Work
attached hereto as Exhibit A.
(ii) Town shall not interfere with the operations of the ERWSD Avon WWTF.
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V I I ej h 5 -26 -09
Avon -Eagle River Water and Sanitation District
Intergovernmental Agreement re: Heat Recovery Project
(iii) The use of any construction staging areas on the ERWSD Avon WWTF property
shall be coordinated with and approved by ERWSD.
(iv) Town shall exercise reasonable care to prevent any loss or damage to the ERWSD
Avon WWTF property or facilities.
E. Operating and Management Agreement: Prior to completion of construction of the
Common Property and commencement of heat recovery operations, the Parties agree to
negotiate in good faith a separate operating and management agreement ( "O &M
Agreement ") regarding long -term cost - sharing of operations and maintenance (O &M)
costs . In the O &M Agreement the Parties shall agree (1) to operate the system and
dutifully maintain the Common Property system components for a period not less than
the Term of this Agreement, (2) that the annual operation and maintenance costs will be
paid by Avon, subject to annual reimbursement by ERWSD for its share of such expenses
based on the quantity of heat used by ERWSD in comparison to the quantity of heat used
by Avon, subject to a non - appropriation clause; and (3) that the O &M Agreement shall
conform in all material respects to the requirements in the Grant Contract. The Parties
further agree that operation and maintenance shall be performed by Avon.
2. SCOPE OF SERVICES. In accordance with the terms and provisions of this
Agreement:
A. Avon shall provide administration of professional services contracts, general construction
contracts, and grants associated with the planning, design, bidding, construction, start-up,
and testing of the Avon Community Heat Recovery Facility Project. This administrative
scope is hereafter referred to as the "Service ". The planning, design, bidding,
construction, start-up, and testing of the facilities themselves is hereafter referred to as
"the Project "; details regarding the scope, schedule and budget of the Project are set forth
in Exhibit A.
B. Avon shall have complete control and supervision over all personnel required to
administer and implement the Project, including but not limited to the benefits,
compensation and discharge of direct Avon employees, and contract modifications to
contracted services involved in this Project.
3. OBLIGATIONS OF AVON. Avon is obligated to provide the following:
A. Dutiful Project Administration: Avon personnel shall dutifully administer professional
services contracts, general construction contracts, consulting contracts, and state grants
involved in any portion of this Project, including executing sound project management
practices and fiduciary oversight of same. Administrative obligations are described as
follows:
(i) Providing bookkeeping, accounting and accounting records and office management
for the Project, including preparation of invoices to ERWSD and grant payment
requests.
Page 3 of 16
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Avon -Eagle River Water and Sanitation District
Intergovernmental Agreement re: Heat Recovery Project
(ii) Payment to the professional services companies under contract directly with Avon
for this Project.
(iii) Preparing and retaining all necessary records and documents in accordance with
federal and state guidelines.
(iv) Preparing, maintaining and providing copies of all consultant deliverables and other
relevant documents and reports associated with the Project.
(v) Scheduling project meetings and coordinating site visits to the Avon Wastewater
Treatment Facility site with plant personnel in advance.
B. Dutiful Construction Management: Avon shall designate Town employees and
consultants with appropriate expertise to provide timely, responsive and effective
construction management of the Avon Community Heat Recovery Project. Avon shall
provide contact and background information to ERWSD for each person who shall
perform construction management services, including name, contact information, resume,
availability, and scope of anticipated construction management services. Avon shall
dutifully conduct construction management activities described as follows:
(i) Executing the bidding and award phase. Award shall be made to the lowest
responsive and responsible bidder.
(ii) Coordinate with EWRSD a pre- construction schedule with the awarded contractor
which includes a contractor tentative schedule, form of schedule used, procedure for
transmittals, processing payment requests, critical work sequences, plant operations,
plant site use, plant site safety and chain of communications.
(iii) Managing the construction quality metrics including the submittal tracking and
engineer's approval process, conducting field inspections to verify correctness and
completeness of work, coordinating specialty inspections done by subcontract,
reviewing substitution requests, coordinating vendor training, and delivering O &M
information for new equipment and the system as a whole.
(iv) Managing the construction schedule and providing updated construction schedules
to ERWSD, including monthly review of the contractor's progress in comparison to
submitted construction schedule and evaluation of delay claims.
(v) Managing the construction budget including review, negotiation, and processing of
the contractors pay requests, Requests for Information (RFIs), submittals, change
orders, and claims.
(vi) Executing the close -out portion of the project including assembly of information
needed for one -year certification and releasing retainage.
C. Mechanical System Performance Analysis Avon personnel shall dutifully coordinate
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Avon -Eagle River Water and Sanitation District
Intergovernmental Agreement re: Heat Recovery Project
testing and operations to consider the annual cost - effectiveness of the system as
determined from the first twelve- months of operational data. This work shall include
data gathering, data analysis, and report writing, and may also involve modifications to
the PLC and SCADA systems to improve automatic operation. A one -year performance
report shall be prepared by Avon which describes the quantity of heat recovered by
source, quantity of heat used by application, annual cost of heat delivery, and extent of
system losses. This report shall be made available to ERWSD within eighteen months of
Substantial Completion.
D. ERWSD Involvement: Avon shall involve ERWSD staff in the evaluation of draft and
final design deliverables, key system design options, preparation of construction contract
documents, and construction change -order grant applications. ERWSD shall be solely
responsible for making any filings required by the Colorado Department of Public Health
and Environment concerning its Discharge Permit. Avon shall be responsible for
obtaining all other required permits for construction, including building permits, and shall
waive any fees that might otherwise be payable by ERWSD to Avon for such permit or
permits. Involvement is described as follows:
(i) Invitation to meetings with consultants, Town Council, Planning and Zoning
Commission, construction meetings involving plant site activities, meetings with
project staff to review project status, consultant recommendations, or any key
decisions about the Project.
(ii) Referral of potential contractors and sub - contractors considered for contracting by
Avon to ERWSD for review and comment.
(iii) Access to the Project eRoom (an electronic file sharing ftp site) for up to two
ERWSD employees. Final design deliverables and construction submittals will be
posted on this site and available for ERWSD viewing.
(iv) Respond in a timely fashion to any written requests from ERWSD for information,
or for copies of any records or other documents.
(v) Coordinate start-up and testing activities with the ERWSD's plant personnel.
E. Indemnification: To the extent allowed by law, Avon shall hold harmless and indemnify
ERWSD for any claims arising from Avon's administration of the design and
construction services as set forth in this Article 3 and the operation and maintenance of
the Project.
F. Assignment of Claims: Avon, as Owner of the project for construction purposes, shall be
deemed to have assigned to ERWSD all rights, claims, and warranties ( "Claim ") against
third parties in connection with ERWSD portions of the project upon final completion of
the Project. Avon shall execute any assignments or other documents as are requested by
ERWSD in order to facilitate ERWSD's ability to pursue any Claim against a third party.
In the event ERWSD is legally unable to pursue any Claim in connection with its portion
Page 5 of 16
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Avon -Eagle River Water and Sanitation District
Intergovernmental Agreement re: Heat Recovery Project
of the project, Avon shall pursue such Claim on behalf of the ERWSD at no cost to
Avon.
G. Bill of Sale: Avon shall execute a bill of sale upon final completion of the Project
conveying to ERWSD the facilities constructed or installed within ERWSD areas of
operations as described in Section I.C. of this Agreement.
4. OBLIGATIONS OF ERWSD. ERWSD is obligated as follows:
A. Participation: ERWSD shall actively participate in the Project by appointing a Project
Manager who timely acts on ERWSD's behalf and is duly responsible to:
(i) Attend project meetings;
(ii) Provide response to requests for information;
(iii) Provide review of consultant- prepared deliverables;
(iv) Coordinate outages at the treatment plant necessary for construction;
(v) Provide review of Avon - prepared deliverables;
(vi) Evaluate construction documents;
(vii) Attend construction meetings;
(viii) Communicate project status with ERWSD staff and Board as appropriate;
(ix) Collaborate on press releases prior to issuance to the media; and,
(x) Negotiate ERWSD requested change orders with the contractor and Avon.
B. Access: ERWSD shall allow access to portions of the Avon Wastewater Treatment
Facility site impacted by the project for specifically authorized members of the project
team. ERWSD shall designate sufficiently sized areas on the plant site for contractor
staging, contractor's trailer, and parking of construction employees.
C. Compensation and Payment: Payment shall be made by ERWSD to Avon in accordance
with Section 5.
5. COMPENSATION. ERWSD shall compensate Avon as follows:
A. Amount: ERWSD shall compensate Avon in the amount of three hundred thirty two
thousand four hundred dollars ($332,400.00), which amount shall be disbursed
proportionately and incrementally by ERWSD to Avon as project expenses are incurred
and are due and payable. Payments by ERWSD shall be made within thirty (30) days of
Avon submitting an invoice and shall accrue interest in accordance with Chapter 3.32 of
the Avon Municipal Code if not paid when due.
B. Authority: ERWSD represents and warrants that ERWSD has made or will make all
appropriations or necessary supplemental appropriations in accordance with state and
Page 6 of 16
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Avon -Eagle River Water and Sanitation District
Intergovernmental Agreement re: Heat Recovery Project
local laws and has good and sufficient funds to fulfill its financial obligations as set forth
in Paragraph 5.A and Paragraph 6 of this Agreement, subject to annual appropriations
after the System Commissioning Period Ends for operation and maintenance costs.
C. ERWSD Contribution Cap: The Parties acknowledge that the actual final total project
cost may exceed the estimate used for budget preparation (as shown in Exhibit A). The
Parties agree that in the event that the final total project cost (including Avon's costs for
in -kind services) exceeds four million three hundred twenty -five thousand dollars
($4,325,000.00) through no fault or additive change- orders requested by ERWSD, that
ERWSD's share shall be capped at the not -to- exceed value set forth in Section 5.A.
D. Impact of ERWSD Requested Change Orders: If ERWSD requests or requires a change
to the design or to the construction after the project bid opening (to award a construction
contract), ERWSD agrees to negotiate in good faith with both Avon and the general
construction contractor and fully compensate Avon for the cost of the change requested
by ERWSD.
6. TERMINATION. The parties acknowledge that the purpose of this Agreement involves
Avon contracting for professional services including but not limited to engineering, design, and
permitting services which contract will create financial obligations upon Avon and further
acknowledge that Avon is relying upon the terms of this Agreement to receive timely payment
from ERWSD as provided in Paragraph 5.A. As such, neither Party may terminate this
Agreement during the period from the date the parties execute this Agreement until the System
Commissioning Period Ends, except in the event of a material default as set forth in Paragraph 7.
Thereafter and as shall be provided in the O &M Agreement, the terms and obligations of this
Agreement (except the Ownership Claims, Paragraph 1.C., and License Agreement, Paragraph
1.D, which shall survive) are subject to annual appropriations by the Parties so as to not create a
multiple fiscal year obligation pursuant to Article X, Section 20 of the Colorado Constitution,
notwithstanding any provisions of this Agreement or the O &M Agreement to the contrary.
7. MATERIAL DEFAULT. If any Party fails to materially perform in accordance with
the terms, covenants and conditions of this Agreement or is otherwise in material default of any
of the terms of this Agreement that Party shall be deemed to be in default under this Agreement.
Prior to pursuing termination of this Agreement or any remedies for breach or default, the non-
defaulting Party shall provide written notice to the defaulting Party of the alleged default and the
defaulting Party shall have forty -five (45) days to cure such breach or default, or if the alleged
default cannot be cured within forty -five (45) days the defaulting Party shall provide a written
statement to the non - defaulting Party explaining the reasons for the inability to cure the breach or
default within forty -five (45) days and stating the intention of the defaulting Party to commence
cure of such breach or default within said forty -five (45) days. If the alleged default cannot be
cured within forty -five (45) and the defaulting Party commences to cure the default, the
defaulting Party shall have no more than one hundred twenty (120) days to cure such default. If
the default is not cured within the applicable timeframe, the non - defaulting Party may elect to
terminate this Agreement or may elect to enforce the defaulting Party's obligations. hereby by an
action for any equitable remedy, including injunction and /or specific performance, and /or by an
Page 7 of 16
VI I ejh 5 -26 -09
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Intergovernmental Agreement re: Heat Recovery Project
action to recover damages. Each remedy provided for in this Agreement is cumulative and is in
addition to every other remedy provided for in this Agreement or otherwise existing at law, in
equity or by statute.
S. PUBLIC RECORDS. The parties acknowledge that each Party is subject to the
Colorado Open Records Act ( "CORA ") set forth in Article 72 of Title 24, Colorado Revised
Statutes, and that the parties agree to coordinate and cooperate on which documents constitute
public records under CORA.
9. NOTICES. Any statement, notice, demand or communication which one Party may
desire or be required to give to the other Parties shall be in writing and shall be deemed
sufficiently given or rendered if delivered personally, by e -mail, or sent by first -class United
States mail, postage prepaid, addressed as follows:
If to ERWSD Eagle River Water and Sanitation District
846 Forest Road
Vail, CO 81657
Attn: General Manager
dgelvin cgerwsd.org E -mail
If to Avon: Town of Avon
Department of Finance
PO BOX 975
Avon, CO 81620
Attn: Finance Director
swright o .avon.org E -mail
All Parties shall have the right to designate in writing, served as provided above, a
different address to which any notice, demand or communication is to be mailed.
10. MISCELLANEOUS.
A. Validity. If any clause or provision of this Agreement shall be held to be invalid in whole
or in part, then the remaining clauses and provisions, or portions thereof, shall
nevertheless be and remain in full force and effect.
B. Changes. No amendment, alteration, modification of or addition to this Agreement shall
be valid or binding unless expressed in writing and signed by the Parties to be bound
thereby.
C. Timeliness. Time is of the essence with respect to the performance of obligations herein
set forth.
D. Governing Law. This Agreement is governed by and must be construed under the laws
of the State of Colorado.
Page 8 of 16
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Avon -Eagle River Water and Sanitation District
Intergovernmental Agreement re: Heat Recovery Project
E. Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original and all of which together shall constitute one
agreement.
F. Facsimile and E -mail Copies. This Agreement and all documents to be executed and
delivered hereunder may be delivered in the form of a facsimile or electronically scanned
and e- mailed copy (e.g., *.pdf file), subsequently confirmed by delivery of the originally
executed paper document.
G. Entire Agreement. This Agreement constitutes the entire agreement between ERWSD
and Avon concerning the subject matter of this Agreement. This Agreement may not be
amended or modified orally, but only by a written agreement executed by both Parties.
H. Recitals. The Recitals stated above are incorporated into this Agreement as material
terms.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
respective dates set forth below to become effective as of the date first written above.
TO7:"By: 6t d`1 p Attest: -
onald C. Wolfe, Mayor ate P MCI
EAGLE RIVER WATER AND SANITATION DISTRICT
B r
ger Date
Clerk
Page 9 of 16
V11 ejh 5 -26 -09
EXHIBIT A
Scope, Schedule, and Budget of the Project
EXHIBIT A
SCOPE, SCHEDULE, AND BUDGET OF THE
AVON COMMUNITY HEAT RECOVERY PROJECT
SCOPE
The core technical system included in this project is as described for the "Recommended
System: Core Project" on pages 32 through Appendix C of the "Avon Community Heat
Recovery Project: Preliminary Design and Implementation Plan" (Camp Dresser and
McKee, Inc., January 14, 2009). This fundamental description is hereafter referred to as
"The Plan ". The following caveats, comments, or deviations from The Plan govern:
1. The following components act as potential "add -ons" but are not included in the
this Project:
(a) Solar thermal panels, pumps, and associated mechanical appurtenances
at the Avon Wastewater Treatment Facility (Avon WWTF)
(b) Solar thermal panels, pumps, and associated mechanical appurtenances
at the Avon Recreation Center
(c) Electric boiler, sludge pumps, heat exchangers or other modifications to
the ATAD sludge heating and cooling system within the WWTF
(d) In- ground snow melt piping at any location
2. The Parties agree that the "Heat Pump Building" shall be located within
ERWSD's fence line of the Avon WWTF and in close proximity to the water
treatment intake structure and pump building such that sufficient net positive
suction head is provided to gravity flow to the "effluent diversion sump pump"
(e.g., located approximately as shown in Figure 14 of The Plan).
3. The Parties agree that the constructed facility will not result in a consumptive use
of treated effluent and will not involve treatment of the wastewater with the
exception of pumping and cooling. Once heat is extracted from the plant effluent,
it will be returned by gravity flow to the plant outfall.
4. The Parties understand that the degree of effluent cooling which will result from
this new operational facility is unknown at this time but will be determined by
testing during the one year certification period.
5. System components and construction work elements intended to be located inside
the parcel boundaries of the Avon WWTF include:
• New Heat Pump Building (approximately 1040 sf) including a 1.0 MW heat
pump and a 3.5 million BTU per hour natural gas boiler
• Connections to existing plant HVAC system heat exchanger, pumps, valves,
and associated appurtenances
• Buried and Exposed Piping (water, natural gas,), valving, instrumentation and
associated appurtenances
• Piping support and insulation systems
• Modifications to the plant outfall gravity piping system, including the
installation of two new manholes
• Modifications to the plant electrical service and motor control cabinets to
power all new on -site equipment
• Site restoration (e.g., re- seeding, asphalt patching)
6. System components and construction work elements intended to be located
outside of the parcel boundaries of the Avon WWTF are as follows:
• New building (located near the Recreation Center) housing piping, valving,
snow melt heat exchanger, and appurtenances, instrumentation, controls, and
computerized control system.
• Connections to existing Recreation Center water heating system, including
installation of heat exchangers, pumps, valves, and associated appurtenances.
• Supervisory control data acquisition system (SCADA),
• Programmable logic controller (PLC)
• Programmable human - machine interface (HMI)
• Pumps, valves, and associated appurtenances
• Buried and Exposed Piping (water, natural gas,), valuing, instrumentation and
associated appurtenances
• Borings and pipe casing placed under the Union Pacific Railroad in new
easement
• Piping support and insulation systems
• Modifications to Avon's electrical service to power all new equipment located
off the Avon WWTF property
• Site restoration (e.g., re- seeding, asphalt patching)
7. The Parties understand that The Plan is equivalent to about a 10% engineering
design level and as such, the exact content and cost of the facilities to be designed
and constructed are not fully known at the time that this IGA has been executed.
The Parties expect that the exact content and location of facilities to be
constructed will be better known upon execution of the next phase of engineering
work to be performed by the Parties in 2009 and will be fully known upon
Substantial Completion of construction.
SCHEDULE
Key milestones in the anticipated project schedule are listed in Table 1. This schedule
has been prepared for this Core Project (i.e., Phase 1 only). Subsequent phases are
subject to budget availability and further negotiation.
Table 1. Project Schedule Milestones
On or Before Date
Milestone
5/28/2009
Avon Executes EIAF/DOLA contract
5/28/2009
Avon & District Execute Intergovernmental Agreement
6/12/2009
Avon Executes Design Contract
10/23/2009
Design Complete
11/12/2009
Bid Advertisement
12/14/2009
Open Bids
1/4/2010
Award Construction Contract
3/1/2010
Initiate Construction
11/15/2010
Beneficial Occupancy (commissioning begins)
12/31/2010
Substantial Completion of Project
4/15/2011
System Commissioning Period Ends
BUDGET
The estimated project budget is as shown in Table 2.
Table 2. Estimated Project Budget*
EXPENDITURES
DOLA
Category #
Expenditures
Budget
Example Expenditures
$ 1,500,000.00
34.7%
Avon
Design, bid assistance, engineering assistance during
1
A/E Services
$ 720,000
construction and start -up testing
TOTAL
$ 4,325.213.00
100%
Railroad easement acquisition negotitaions, materials
2
Consultant Services
$ 20,000
testing, survey
3
Facility Construction
$ 3,565,231
General construction contract
4
Real Property Acquisitior
$ 20,000
Railroad easement acquisition
Subtotal Direct Costs
$ 4,325,231
For project management, grant administration,
permitting, engineering, legal, construction
-
Avon in -kind services
$ 675,000
management, field inspection.
Total
$ 5,000,231
REVENUES
Revenue Sources
Budget
% of Total Revenues
EIAF (DOLA)
$ 1,500,000.00
34.7%
Avon
$ 2,492,831.00
57.6%
ERWSD
$ 332,400.00
7.7%
TOTAL
$ 4,325.213.00
100%
*Budget Assumptions:
1. Schedule as shown in Table 1. EIAF contract close -out by 4/15/2011.
2. Traditional design- bid -build project delivery method.
3. The locations for system components shall be constructed as listed in this
Exhibit A.
4. A/E Services include professional services for design, bid assistance, and
engineering assistance during construction, start-up, and commissioning.
5. Consultant services are anticipated for permit assistance to obtain
easement from Union Pacific Railroad and materials testing and
specialized inspection during construction.
6. Facility construction costs would include all necessary civil, mechanical,
electrical, structural, instrumentation, controls, computerized monitoring
and controls, software, for fully - functional installed system.
7. Real Property Acquisition is an estimated allowance to obtain permanent
easement from Union Pacific Railroad for pipe crossings. No other real
property is anticipated.
EXHIBIT B
EIAF REQUEST FOR PAYMENT FORM
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END EXHIBIT B
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END EXHIBIT B
EIAF #6461 Avon New Energy Communities Initiative Heat Recovery Facility
Contract Routing #
Vendor #
CFDA # N/A
GRANT CONTRACT
ENERGY AND MINERAL IMPACT ASSISTANCE PROGRAM
THIS CONTRACT, made by and between the State of Colorado for the use and benefit of the Department of Local
Affairs 1313 Sherman Street Denver Colorado 80203 hereinafter referred to as the State, or the Department, and the
Town of Avon P.O. Box 975 Avon Colorado 81620 hereinafter referred to as the Contractor.
WHEREAS, authority exists in the law and 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
in Fund Number 152 , Appropriation Code Number 127 Org. Unit FBAO , GBL Contract
Encumbrance Number F09S6461 ; and
WHEREAS, required approval, clearance and coordination have been accomplished from and with appropriate
agencies; and
WHEREAS, the State desires to assist political subdivisions and state agencies of the State of Colorado that are
experiencing social and economic impacts resulting from the development, processing, or energy conversion of minerals or
mineral fuels; and
WHEREAS, pursuant to 39 -29 -110, C.R.S., the Local Government Severance Tax Fund has been created, which
fund is administered by the Department of Local Affairs, herein referred to as the "Department," through the Energy and
Mineral Impact Assistance program; and
WHEREAS, pursuant to section 39- 29- 110(1)(a) and (b)(1), C.R.S., the Executive Director of the Department is
authorized to make grants from the Local Government Severance Tax Fund to those political subdivisions socially or
economically impacted by the development, processing, or energy conversion of minerals and mineral fuels for the planning,
construction, and maintenance of public facilities and for the provision of public services; and
WHEREAS, the Contractor, a political subdivision or state agency eligible to receive Energy and Mineral
Impact Assistance funding, has applied to the Department for assistance with design, construction and' operation of a heat
recovery system which will deliver approximately 6.8 million BTU /hr into a distribution loop as further described in the
attached Exhibit A , herein referred to as the "Project "; and
WHEREAS, the Executive Director of the Department desires to distribute said funds pursuant to law; and
WHEREAS, the Executive Director wishes to provide assistance in the form of a grant from the Local Government
Severance Tax Fund to the Contractor for the Project upon mutually agreeable terms and conditions as hereinafter set forth;
NOW THEREFORE, in consideration of and subject to the terms, conditions, provisions and limitations contained in
this Contract, the State and the Contractor agree as follows:
1. Scope of Services. The Contractor shall do, perform, and carry out, in a satisfactory and proper manner, as
determined by the State, all work elements as indicated in the "Scope of Services" section of Exhibit A, attached hereto and
incorporated by reference herein
2. Responsible Administrator. The performance of the services required hereunder shall be under the direct
supervision of Jennifer Strehler, Director of Public Works an employee or agent of the Contractor who is hereby designated
as the "Responsible Administrator" of the Project. At any time, the Contractor may propose, in writing, and seek the State's
approval of a replacement Responsible Administrator, in accordance with paragraph 8.b.ii) of this Contract. The State, in its
sole discretion, may direct that Project work be suspended in the event the current Responsible Administrator ceases to
serve as such prior to the approval by the State of a replacement Responsible Administrator.
3. Time of Performance. This Contract shall become effective upon approval by the State Controller or designee (the
"Effective Date ") and extend through the completion date set forth in the "Time of Performance" section of Exhibit A .
Performance of this Contract shall commence as soon as practicable after the Effective Date of this Contract; provided
however, that the Contractor shall not be entitled to payment for any performance rendered before the Effective Date and
shall not be eligible for reimbursement of any expenses incurred before the Effective Date. The Contractor shall undertake
and perform its obligations hereunder as set forth in Exhibit A . The Contractor agrees that time is of the essence in the
performance of its obligations under this Contract.
EIAF #6461 Avon New Energy Communities Initiative Heat Recovery Facility
4. Authority to Enter into Contract and Proceed with Project. The Contractor represents and warrants that it
possesses the legal authority to enter into this Contract and has taken all actions required to exercise such authority and
to lawfully authorize its undersigned signatory to execute this Contract and to bind the Contractor to its terms. The person
signing and executing this Contract on behalf of the Contractor does hereby warrant and guarantee that he /she has full
authorization to execute this Contract. In addition, the Contractor represents and warrants that it currently has the legal
authority to proceed with the Project.
Furthermore, if the nature or structure of the Project is such that a decision by the electorate is required, the Contractor
represents and warrants that it has held such an election and secured the voter approval necessary to allow the Project to
proceed.
5. Payment of Funds: Grant. In consideration for the work and services to be performed hereunder, the State agrees
to provide to the Contractor a grant from the Local Government Severance Tax Fund in an amount not to exceed ONE
MILLION FIVE HUNDRED THOUSAND AND XX/100 Dollars ($1 500 000. The method and time of payment of such grant
funds to the Contractor shall be made in accordance with the 'Distribution Schedule" set forth in Exhibit A.
The Contractor shall use the funds provided by the State under this Contract solely for the purposes set forth in Exhibit A
6. Refund of Excess Funds to the State.
a) Any State funds paid to the Contractor and not expended in connection with the Project shall be remitted by
the Contractor to the State within thirty ( 30 ) days of either (i) the completion of the Project or (ii) a determination
by the State, in its sole discretion, that the Project will not be completed, whichever occurs first. Any State funds not
required for completion of the Project shall be de- obligated by the State.
b) It is expressly understood that if the Contractor receives funds from this Contract during any fiscal year in
excess of its spending limit for such fiscal year, the Contractor shall refund all excess funds to the State within thirty
30 days of the later of (i) the receipt of such funds or (ii) the determination of such excess.
c) Under no circumstances shall unexpended or excess funds received by the Contractor under this Contract
be refunded or paid to any party other than the State.
7. Financial Management and Budget. At all times from the Effective Date until completion of the Project, the
Contractor shall maintain properly segregated accounts of State funds, matching funds, and other funds associated with the
Project. All receipts and expenditures associated with the Project shall be documented in a detailed and specific manner, in
accordance with the 'Budget" section of Exhibit A . The Contractor may adjust individual budgeted expenditure amounts
without approval of the State; provided that no transfers to or between administration categories are made; and provided
further, that cumulative budgetary line item changes do not exceed the lesser of ten percent (10 %) of the total budgeted
amount or Twenty Thousand Dollars ( $20,000.00 ). All other budgetary modifications must be approved by the State
pursuant to paragraph 8 of this Contract. Matching funds, if required, shall be expended by the Contractor on the Project in
accordance with the requirements set forth in the "Budget" section of Exhibit A .
8. Modification and Amendment.
a) Modification by Operation of Law. This Contract is subject to such modifications as may be necessitated
by changes in federal or state law or their implementing regulations. Any such required modifications automatically
shall be incorporated into and be part of this Contract on the effective date of such modification, as if fully set forth
herein.
b) Modification by State.
Option Letter. The State unilaterally may extend the term for performance of this Contract for up to
one (1) additional year on the same terms and conditions specified in this Contract and Exhibit A .
The State may exercise the option by written notice to the Contractor within thirty (30) days prior to
the end of the current Contract term, in a form substantially equivalent to Exhibit B -1 attached hereto
and incorporated by reference herein. The State may exercise this option only once during the
duration of this Contract. The total duration of this Contract shall not exceed a total Contract period of
five (5) years. Financial obligations of the State of Colorado payable after any current fiscal year are
contingent upon the availability of funds for that purpose as set forth in paragraph 24 of this Contract.
ii) Change Order Letter. The State may make the following modifications to this Contract using a
Unilateral Change Order Letter, in a form substantially equivalent to Exhibit B -2 attached hereto and
incorporated by reference herein, when such modifications are requested by the Contractor, in writing,
or determined by the State to be necessary and appropriate:
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A) Change of Responsible Administrator, set forth in paragraph 2 of this Contract;
B) Transfers to or between administrative budgetary categories, as required by paragraph 7 of
this Contract;
C) Changes to cumulative budgetary line item in excess of the lesser of ten percent (10 %) of
the total budgeted amount or Twenty Thousand Dollars ( $20,000.00 ), as required by
paragraph 7 of this Contract;
D) Change of Remit Address set forth in paragraph 5 of Exhibit A .
c) Other Modifications. If either Party desires to modify the terms of this Contract other than as set forth in
subparagraphs a) and b) of this paragraph 8, written notice of the proposed modification shall be given to the other
Party. No such modification shall take effect unless agreed to in writing by both Parties in an amendment to this
Contract properly executed and approved in accordance with Colorado law, fiscal rules, and policies. Such
amendment may also incorporate any modifications permitted under subparagraphs a) and .b) of this paragraph 8.
9. Audit.
a) Discretionary Audit. The State, through the Executive Director of the Department of Local Affairs, the
Colorado State Auditor, or any of their duly authorized representatives and the federal government or any of its duly
authorized representatives shall have the right to inspect, examine and audit the Contractor's and any
subcontractor's records, books, accounts and other relevant documents. For the purposes of discretionary audit, the
State specifically reserves the right to hire an independent certified public accountant of the State's choosing. A
discretionary audit may be requested at any time and for any reason during the period commencing on the Effective
Date and continuing for five (5) years after the date of the final payment for the Project under this Contract is
received by the Contractor, provided that the audit is performed during normal business hours.
b) Mandatory Audit. Whether or not the State or the federal government calls for a discretionary audit as
provided above, the Contractor shall include the Project in its annual audit report as required by the Colorado Local
Government Audit Law, 29 -1 -601, et seq., C.R.S., and implementing rules and regulations. Such audit reports shall
be simultaneously submitted to the Department and the State Auditor. Thereafter, the Contractor shall supply the
Department with copies of all correspondence from the State Auditor related to the relevant audit report. If the audit
reveals evidence of non - compliance with applicable requirements, the Department reserves the right to institute
compliance or other appropriate proceedings notwithstanding any other judicial or administrative actions filed
pursuant to 29 -1 -607 or 29 -1 -608, C.R.S.
10. Insurance. The Contractor shall at all times during the term of this Contract maintain such liability insurance, by
commercial policy or self- insurance, as is necessary to meet its liabilities under the Colorado Governmental Immunity Act,
CRS 24 -10 -101, et seq., as amended. Upon request by the State, the Contractor shall show proof of such insurance
satisfactory to the State. The Contractor shall require each contract with a subcontractor providing goods or services for or in
connection with the Project to include insurance requirements substantially similar to the following:
a) Subcontractor shall obtain, and maintain at all times during the term of the subcontract, insurance in the
following kinds and amounts:
i. Worker's Compensation Insurance as required by state statute, and Employer's Liability Insurance
covering all of the subcontractor's employees acting within the course and scope of their employment.
ii. Commercial General Liability Insurance written on ISO occurrence form CG 00 01 10/93 or
equivalent, covering premises operations, fire damage, independent contractors, products and completed
operations, blanket contractual liability, personal injury, and advertising liability with minimum limits as
follows:
A. $1,000,000 each occurrence;
B. $1,000,000 general aggregate;
C. $1,000,000 products and completed operations aggregate; and
D. $50,000 any one fire.
If any aggregate limit is reduced below $1,000,000 because of claims made or paid, the subcontractor shall
immediately obtain additional insurance to restore the full aggregate limit and furnish to the Contractor a
certificate or other document satisfactory to the Contractor showing compliance with this provision.
iii. Automobile Liability Insurance covering any auto (including owned, hired and non -owned autos)
with a minimum limit as follows: $1,000,000 each accident combined single limit.
EIAF #6461 Avon New Energy Communities Initiative Heat Recovery Facility
b) In addition, the Contractor shall require the subcontractor, with respect to all insurance policies in any way
related to the subcontract, to:
i. name the Contractor and the State of Colorado as additional insureds on the Commercial General
Liability and Automobile Liability Insurance policies (leases and construction contracts will require the
additional insured coverage for completed operations on endorsements CG 2010 11/85, CG 2037, or
equivalent). Coverage required by the subcontract will be primary over any insurance or self- insurance
program carried by the Contractor or the State of Colorado.
ii. include provisions preventing cancellation or non - renewal without at least 45 days prior notice to
the Contractor by certified mail.
iii. include clauses stating that each carrier will waive all rights of recovery, under subrogation or
otherwise, against the Contractor and the State of Colorado, its agencies, institutions, organizations, officers,
agents, employees and volunteers.
iv. be issued by insurance companies satisfactory to the Contractor and the State of Colorado.
v. provide certificates showing insurance coverage required by the subcontract to the Contractor
within seven (7) business days of the effective date of the subcontract, but in no event later than the
commencement of the services or delivery of the goods under such subcontract. No later than fifteen (15)
days prior to the expiration date of any such coverage, the subcontractor shall deliver to the Contractor
certificates of insurance evidencing renewals thereof. At any time during the term of the subcontract, the
Contractor may request in writing and the subcontractor, within ten (10) days, shall supply to the Contractor,
evidence satisfactory to the Contractor of compliance with the provisions of this paragraph.
11. Conflict of Interest. The Contractor shall comply with the provisions of 18 -8 -308 and 24 -18 -101 through 24 -18 -109,
C.R.S.
12. Remedies. In addition to any other remedies provided for in this Contract, and without limiting the remedies
otherwise available at law or in equity, if the Contractor fails to comply with any contractual provision, the State, after written
notice to the Contractor, may:
a) suspend this Contract and withhold further payments and /or prohibit the Contractor from incurring
additional obligations of contractual funds, pending corrective action by the Contractor or a decision by the State to
terminate this Contract in accordance with provisions herein. The State, in its sole discretion, may allow
expenditures during the suspension period which the Contractor could not reasonably avoid, provided such costs
were necessary and reasonable for the conduct of the Project; or
b) terminate this Contract for default.
The above remedies are cumulative and the State, in its sole discretion, may exercise any or all of them individually or
simultaneously.
13. Contract Termination. This Contract may be terminated as follows:
a) Termination Due to Loss of Funding. The Parties hereto expressly recognize that the Contractor is to be
paid or reimbursed with funds provided to the State for the purposes set forth herein, and therefore, the Contractor
expressly understands and agrees that all its rights, demands and claims to payment or reimbursement arising under
this Contract are contingent upon receipt of such funds by the State. In the event that such funds or any part thereof
are not received by the State, the State may immediately terminate or amend this Contract.
b) Termination for Cause. If, for any reason, the Contractor shall fail to fulfill in a timely and proper manner
its obligations under this Contract, or if the Contractor shall violate any of the covenants, agreements, or stipulations
of this Contract, the State shall give written notice to the Contractor of such delay or non - performance. If the
Contractor fails to promptly correct such delay or non - performance within the time specified in the notice or twenty
(20) days from the date of such notice, which ever is greater, the State shall have the right, at its sole option, to
terminate this entire Contract, or such part of this Contract as to which there has been delay or failure to properly
perform, for cause. If the State terminates this Contract for cause, the State shall reimburse the Contractor only for
eligible expenditures made up to the date of termination.
Notwithstanding the above, the Contractor shall remain liable to the State for any damages sustained by the State by
virtue of any breach of this Contract by the Contractor, and the State may withhold any payments to the Contractor
for the purpose of offset until such time as the exact amount of damages due the State from the Contractor is
determined.
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c) Termination for Convenience. When the interests of the State so require, the State may terminate this
Contract in whole or in part for the convenience of the State. The State shall give written notice of termination to the
Contractor specifying the termination of all or a part of this Contract and the effective date thereof, at least twenty
(20) days before the date of termination. Exercise by the State of this termination for convenience provision shall not
be deemed a breach of contract by the State. Upon receipt of written notice, the Contractor shall incur no further
obligations in connection with the terminated work and, on the date set in the notice of termination, the Contractor
shall stop work to the extent specified. The Contractor also shall terminate outstanding orders and subcontracts as
they relate to the terminated work.
14. Integration. This Contract, together with it exhibits and attachments, is intended as the complete integration of all
understandings between the Parties. No prior or contemporaneous addition, deletion or modification hereto shall have any
force or effect whatsoever, unless embodied in a writing, executed by the Parties pursuant to paragraph 8 of this Contract,
and approved in accordance with Colorado State fiscal rules and policies.
15. Severability. To the extent that this Contract may be executed and performance of the obligations of the Parties
may be accomplished within the intent of this Contract, the terms of this Contract are severable, and should any term or
provision hereof be declared invalid or become inoperative for any reason, such invalidity or failure shall not affect the validity
of any other term or provision hereof.
16. Waiver. The waiver of any breach of a term, provision or requirement hereof shall not be construed as a waiver of
any other term, provision or requirement or of any subsequent breach of the same term, provision or requirement.
17. Binding on Successors. Except as otherwise provided herein, this Contract shall inure to the benefit of and be
binding upon the Parties, and their respective successors and assigns.
18. Assignment. Notwithstanding paragraph 17, the Contractor may not assign its rights or duties under this Contract
without the prior written consent of the State. No subcontract or transfer of this Contract shall in any case release the
Contractor of responsibilities under this Contract.
19. Survival of Certain Contract Terms. Notwithstanding anything herein to the contrary, all terms and conditions of
this Contract, including but not limited to the exhibits and attachments hereto, which may require continued performance,
compliance or effect beyond the termination date of this Contract shall survive such termination date and shall be enforceable
by the State in the event of any failure to perform or comply by the Contractor or its subcontractors.
20. Successor in Interest. In the event the Contractor is an entity formed under intergovernmental agreement and the
project is for the acquisition, construction or reconstruction of real or personal property to be used as a public facility or to
provide a public service, the Contractor warrants that it has established protections that ensure that, in the event the
Contractor entity ceases to exist, ownership of the property acquired or improved shall pass to a constituent local government
or other eligible governmental successor in interest, or other successor if specifically authorized in Exhibit A , so that the
property can continue to be used as a public facility or to provide a public service.
21. Non - Discrimination. The Contractor agrees to comply with the letter and the spirit of all applicable state and federal
laws and requirements with respect to discrimination and unfair employment practices.
22. Compliance with Applicable Laws. At all times during the performance of this Contract, the Contractor shall strictly
adhere to all applicable federal, state and local laws, and their implementing regulations, that have been or may thereafter be
established, which laws and regulations are incorporated herein by this reference as terms and conditions of this Contract.
The Contractor also shall require compliance with such laws and regulations by subcontractors under subcontracts entered
into in connection with the Project.
23. Order of Precedence. In the event of conflicts or inconsistencies between this Contract and its exhibits or
attachments, such conflicts or inconsistencies shall be resolved by reference to the documents in the following order of
priority:
A. Colorado Special Provisions, of this contract.
B. Modifications to the Contract, pursuant to Exhibits B -1, B -2, or Amendment.
C. Remaining paragraphs of the Contract.
D. Exhibit A, Scope of Services.
24. Availability of Funds. This Contract is contingent upon the continuing availability of State appropriations as
provided in Section 2 of the Colorado Special Provisions, incorporated as a part of this Contract. The State is prohibited by
law from making fiscal commitments beyond the term of its current fiscal period. If federal appropriations or grants fund this
Contract in whole or in part, this Contract is subject to and contingent upon the continuing availability of appropriated federal
funds for this Contract. If State of Colorado or federal funds are not appropriated, or otherwise become unavailable to fund
this Contract, the State may immediately terminate this Contract in whole or in part without further liability.
EIAF #6461 Avon New Energy Communities Initiative Heat Recovery Facility
25. Third Party Beneficiaries. The enforcement of the terms and conditions of this Contract and all rights of action
relating to such enforcement shall be strictly reserved to the State and the Contractor. Nothing contained in this Contract
shall give or allow any claim or right of action whatsoever by any third person. It is the express intention of the State and the
Contractor that any such person or entity, other than the State or the Contractor, receiving services or benefits under this
Contract shall be deemed an incidental beneficiary only.
26. Indemnification.
Intergovernmental Grants
If this is an intergovernmental Grant, the provisions hereof shall not be construed or interpreted as a waiver,
express or implied, of any of the immunities, rights, benefits, protection, or other provisions, of the Colorado
Governmental Immunity Act, CRS 24 -10 -101 et seq., or the Federal Tort Claims Act, 28 U.S.C. 2671 et seq., as
applicable, as now or hereafter amended.
ii. Non- Intergovernmental Grants
Grantee shall indemnify, save, and hold harmless the State, its employees and agents, against any and all
claims, damages, liability and court awards including costs, expenses, and attorney fees and related costs,
incurred as a result of any act or omission by Grantee, or its employees, agents, subcontractors, or assignees
pursuant to the terms of this Grant.
EIAF #6461 Avon New Energy Communities Initiative Heat Recovery Facility
SPECIAL PROVISIONS
These Special Provisions apply to all contracts except where noted in italics.
1. CONTROLLER'S APPROVAL. CRS §24 -30- 202(1). This contract shall not be valid until it has been approved by the
Colorado State Controller or designee.
2. FUND AVAILABILITY. CRS §24 -30- 202(5.5). Financial obligations of the State payable after the current fiscal year are
contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available.
3. GOVERNMENTAL IMMUNITY. No term or condition of this contract shall be construed or interpreted as a waiver,
express or implied, of any of the immunities, rights, benefits, protections, or other provisions, of the Colorado Governmental
Immunity Act, CRS §24 -10 -101 et seq., or the Federal Tort Claims Act, 28 U.S.C. § §1346(b) and 2671 et seq., as applicable
now or hereafter amended.
4. INDEPENDENT CONTRACTOR. Contractor shall perform its duties hereunder as an independent contractor and not as
an employee. Neither Contractor nor any agent or employee of Contractor shall be deemed to be an agent or employee of
the State. Contractor and its employees and agents are not entitled to unemployment insurance or workers compensation
benefits through the State and the State shall not pay for or otherwise provide such coverage for Contractor or any of its
agents or employees. Unemployment insurance benefits will be available to Contractor and its employees and agents only if
such coverage is made available by Contractor or a third party. Contractor shall pay when due all applicable employment
taxes and income taxes and local head taxes incurred pursuant to this contract. Contractor shall not have authorization,
express or implied, to bind the State to any agreement, liability or understanding, except as expressly set forth herein.
Contractor shall (a) provide and keep in force workers' compensation and unemployment compensation insurance in the
amounts required by law, (b) provide proof thereof when requested by the State, and (c) be solely responsible for its acts and
those of its employees and agents.
5. COMPLIANCE WITH LAW. Contractor shall strictly comply with all applicable federal and State laws, rules, and
regulations in effect or hereafter established, including, without limitation, laws applicable to discrimination and unfair
employment practices.
6. CHOICE OF LAW. Colorado law, and rules and regulations issued pursuant thereto, shall be applied in the interpretation,
execution, and enforcement of this contract. Any provision included or incorporated herein by reference which conflicts with
said laws, rules, and regulations shall be null and void. Any provision incorporated herein by reference which purports to
negate this or any other Special Provision in whole or in part shall not be valid or enforceable or available in any action at
law, whether by way of complaint, defense, or otherwise. Any provision rendered null and void by the operation of this
provision shall not invalidate the remainder of this contract, to the extent capable of execution.
7. BINDING ARBITRATION PROHIBITED. The State of Colorado does not agree to binding arbitration by any extra - judicial
body or person. Any provision to the contrary in this contact or incorporated herein by reference shall be null and void.
8. SOFTWARE PIRACY PROHIBITION. Governor's Executive Order D 002 00. State or other public funds payable under
this contract shall not be used for the acquisition, operation, or maintenance of computer software in violation of federal
copyright laws or applicable licensing restrictions. Contractor hereby certifies and warrants that, during the term of this
contract and any extensions, Contractor has and shall maintain in place appropriate systems and controls to prevent such
improper use of public funds. If the State determines that Contractor is in violation of this provision, the State may exercise
any remedy available at law or in equity or under this contract, including, without limitation, immediate termination of this
contract and any remedy consistent with federal copyright laws or applicable licensing restrictions.
9. EMPLOYEE FINANCIAL INTEREST /CONFLICT OF INTEREST. CRS § §24 -18 -201 and 24 -50 -507. The signatories
aver that to their knowledge, no employee of the State has any personal or beneficial interest whatsoever in the service or
property described in this contract. Contractor has no interest and shall not acquire any interest, direct 'or indirect, that would
conflict in any manner or degree with the performance of Contractor's services and Contractor shall not employ any person
having such known interests.
10. VENDOR OFFSET. CRS § §24 -30 -202 (1) and 24 -30- 202.4. [Not Applicable to intergovernmental agreements]
Subject to CRS §24 -30 -202.4 (3.5), the State Controller may withhold payment under the State's vendor offset intercept
system for debts owed to State agencies for: (a) unpaid child support debts or child support arrearages; (b) unpaid balances
of tax, accrued interest, or other charges specified in CRS §39 -21 -101, et seq.; (c) unpaid loans due to the Student Loan
Division of the Department of Higher Education; (d) amounts required to be paid to the Unemployment Compensation Fund;
and (e) other unpaid debts owing to the State as a result of final agency determination or judicial action.
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11. PUBLIC CONTRACTS FOR SERVICES. CRS §8- 17.5 -101. [Not Applicable to agreements relating to the offer,
issuance, or sale of securities, investment advisory services or fund management services, sponsored projects,
intergovernmental agreements, or information technology services or products and services] Contractor certifies,
warrants, and agrees that it does not knowingly employ or contract with an illegal alien who will perform work under this
contract and will confirm the employment eligibility of all employees who are newly hired for employment in the United States
to perform work under this contract through participation in the E- Verify Program or the Department program established
pursuant to CRS §8- 17.5- 102(5)(c), Contractor shall not knowingly employ or contract with an illegal alien to perform work
under this contract or enter into a contract with a subcontractor that fails to certify to Contractor that the subcontractor shall
not knowingly employ or contract with an illegal alien to perform work under this contract Contractor (a) shall not use E- Verify
Program or Department program procedures to undertake pre - employment screening of job applicants while this contract is
being performed, (b) shall notify the subcontractor and the contracting State agency within three days if Contractor has actual
knowledge that a subcontractor is employing or contracting with an illegal alien for work under this contract, (c) shall
terminate the subcontract if a subcontractor does not stop employing or contracting with the illegal alien within three days of
receiving the notice, and (d) shall comply with reasonable requests made in the course of an investigation, undertaken
pursuant to CRS §8- 17.5- 102(5), by the Colorado Department of Labor and Employment. If Contractor participates in the
Department program, Contractor shall deliver to the contracting State agency, Institution of Higher Education or political
subdivision a written, notarized affirmation, affirming that Contractor has examined the legal work status of such employee,
and shall comply with all of the other requirements of the Department program. If Contractor fails to comply with any
requirement of this provision or CRS §8- 17.5 -101 et seq., the contracting State agency, institution of higher education or
political subdivision may terminate this contract for breach and, if so terminated, Contractor shall be liable for damages.
12. PUBLIC CONTRACTS WITH NATURAL PERSONS. CRS §24- 76.5 -101. Contractor, if a natural person eighteen (18)
years of age or older, hereby swears and affirms under penalty of perjury that he or she (a) is a citizen or otherwise lawfully
present in the United States pursuant to federal law, (b) shall comply with the provisions of CRS §24- 76.5 -101 et seq., and
(c) has produced one form of identification required by CRS §24- 76.5 -103 prior to the effective date of this contract.
Revised 1 -1 -09
EIAF #6461 Avon New Energy Communities Initiative Heat Recovery Facility
THE PARTIES HERETO HAVE EXECUTED THIS CONTRACT
* Persons signing for Contractor hereby swear and affirm that they are authorized to act on Contractor's behalf and
acknowledge that the State is relying on their representations to that effect.
CONTRACTOR STATE OF COLORADO
Town of Avon, Colorado Bill Ritter, Jr., GOVERNOR
DEPARTMENT OF LOCAL AFFAIRS
Susan E. Kirkpatrick, Executive Director
Date:
PRE - APPROVED FORM CONTRACT REVIEWER
An
Teri Davis, Director of Local Government Services
Date:
ALL CONTRACTS REQUIRE APPROVAL by the STATE CONTROLLER
CRS §24 -30 -202 requires the State Controller to approve all State Contracts. This Contract is not valid until signed
and dated below by the State Controller or delegate. Contractor is not authorized to begin performance until such
time. If Contractor begins performing prior thereto, the State of Colorado is not obligated to pay Contractor for such
performance or for any goods and /or services provided hereunder.
STATE CONTROLLER
David J. McDermott, CPA
By:
Rose Marie Auten, Controller Delegate
Date:
Revised June 2, 2008
ova \d C_ • 1Z)C
By: Name of Authorized Individual
EIAF #6461 Avon New Energy Communities Initiative Heat Recovery Facility
EXHIBIT A
SCOPE OF SERVICES
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EIAF #6461 Avon New Energy Communities Initiative Heat Recovery Facility
EXHIBIT A
SCOPE OF SERVICES
PROJECT DESCRIPTION, OBJEC AND REQUIREMENTS
Design, construction, and operation of a heat recovery system which will deliver approximately 6.8 million BTU /hr into
a distribution loop. The source of this heat is wastewater treatment plant effluent, electricity, and natural gas. The
Town of Avon (contractor) and the Eagle River Water and Sanitation District (ERWSD) are anticipated to be the
users of this heat for at least ten years. The core elements of the system will be located at the following two
addresses: 950 West Beaver Creek Blvd., Avon Colorado 81620 and at One Lake Street, Avon Colorado 81620.
The entire system, including components located at both addresses, will be owned by the Town of Avon, Colorado.
The engineering designer is Camp Dresser and McKee, Inc. and the construction work will be competitively bid (i.e.,
the general contractor unknown at this time).
The Town has entered into an intergovernmental agreement (IGA) with the ERWSD regarding the ownership of
facilities. This IGA categorizes the constructed facilities as "Town- owned ", "ERWSD- owned ", and "common
property'. The IGA defines roles and responsibilities for the Town and the ERWSD. The State is not a party to the
IGA.
Eligible expenses include but are not limited to; Consultant fees, RFP /bid advertisements, survey work, testing fees,
permit fees, labor and materials costs, bond and insurance costs, purchase and erection of pre- engineered buildings,
real property purchase price, right -of -way acquisition, appraisal fees, closing costs, and attorney's fees.
Energy and Mineral Impact Assistance program funds in the amount of ONE MILLION FIVE HUNDRED THOUSAND
AND XX /100 Dollars ($ 1,500,000) are provided under this Contract to finance Project costs. The Contractor shall
provide TWO MILLION FOUR HUNDRED NINETY THREE THOUSAND TWO HUNDRED THIRTY ONE AND
XX/100 Dollars ( $2,493,231 ) in Project financing from sources other than State funds, and, in any event, is
responsible for all Project cost in excess of ONE MILLION FIVE HUNDRED THOUSAND AND XX /100 Dollars
($ 1,500,000) .
The Contractor shall comply with all applicable statutory design and construction standards and procedures that may
be required by the Colorado Department of Public Health and Environment and shall provide the State with
documentation of such compliance.
A construction contract shall be awarded to a qualified construction firm through a formal selection process with the
Contractor being obligated to award the construction contract to the lowest responsible bidder meeting the
Contractor's specifications.
A contract shall be awarded to a qualified vendor or firm through a competitive selection process with the Contractor
being obligated to award the contract to the lowest responsible bidder meeting the Contractor's specifications.
If cost savings are incurred while completing the Project, the State may require that those savings be split on a pro -
rata basis between the State and the Contractor.
During a period of ten (10) years following the date of closeout of the Project by the State, the Contractor may not
change the use or planned use of the property. If the Contractor decides to change the use of the property to a use
which the State determines does not qualify in meeting the original intent of the Project, the Contractor must
reimburse to the State an amount equal to the current fair market value of the property, less any portion of the value
attributable to expenditures of non Energy Impact funds for acquisition of and improvements to, the property. At the
end of the ten (10) year period following the date of completion and thereafter, no State restrictions on use of the
property shall be in effect.
Copies of any and all contracts entered into by the Contractor in order to accomplish this Project shall be submitted
to the Department of Local Affairs upon execution, and any and all contracts entered into by the Contractor or any of
its subcontractors shall comply with all applicable federal and state laws and shall be governed by the laws of the
State of Colorado.
The Contractor agrees to acknowledge the Colorado Department of Local Affairs in any and all materials or events
designed to promote or educate the public about the Project, including but not limited to: press releases, newspaper
articles, op -ed pieces, press conferences, presentations and brochures /pamphlets.
11
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q
4.
5.
6.
ENERGY AND MINERAL IMPACT
The Eagle County area, including Avon was originally settled by miners in the late 1800's with over 500 mining
claims between 1879 -1959. None of the original mines in Eagle County are active today.
TIME OF PERFORMANCE
The Project shall commence upon the Effective Date and shall be completed on or before December 31, 2011 In
accordance with paragraph 8.b.i. of this Contract, the Contractor may request an extension of the time for
performance by submitting a written request, including a full justification for the request, to the State at least thirty
(30) days prior to the termination of the performance period. If the State, in its sole discretion, consents to an
extension, the State shall grant such extension in accordance with paragraph 8.b.i. of this Contract.
BUDGET
Revenues Expenditures
Energy /Mineral Impact - GRANT $1,500,000 Real Property Acquisition $ 20,000
Contractor Funds $2,493,231 Consultant Services $ 20,000
Eagle River WSD 332,000 Architectural /Engineering $ 720,000
Services
Building or Facility Construction $3,565,231
Total Total
$4,325,231 $4,325,231
REMIT ADDRESS: (Address to where payments are to be sent)
P.O. Box 975
Avon, CO 81620
DISTRIBUTION SCHEDULE
Grant Payments
$1,350,000 Available for interim payments reimbursing the Contractor for actual expenditures made
in the performance of this Contract. Payments shall be based upon properly
documented financial and narrative status reports detailing expenditures made to date.
$ 150,000 Available for final payment to be made to Contractor upon the completion of the Project
and submission by the Contractor of final financial and narrative status reports
documenting the expenditure of all Energy /Mineral Impact Assistance funds for which
payment has been requested.
$1,500,000 Maximum Available
PAYMENT PROCEDURE
The State shall establish billing procedures and pay the Contractor for actual expenditures made in the performance
of this Contract based on the submission of statements in the format prescribed by the State. The Contractor shall
submit requests for reimbursement, setting forth a detailed description of the amounts and types of reimbursable
expenses.
Payments pursuant to this Contract shall be made, in whole or in part, from available funds encumbered for the
purposes of this Contract. The liability of the State, at any time, for such payments shall be limited to the amount
remaining of such encumbered funds. In the event this Contract is terminated, final payment to the Contractor may
be withheld at the discretion of the State until completion of final audit. Incorrect payments to the Contractor due to
omission, error, fraud, or defalcation shall be recovered from the Contractor by deduction from subsequent payment
under this Contract or other contracts between the State and the Contractor, or by the State as a debt due to the
State.
8. CONTRACT MONITORING
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EIAF #6461 Avon New Energy Communities Initiative Heat Recovery Facility
The State shall monitor this Contract on an as- needed basis, as determined by the State in its sole discretion. The
State or any of its duly authorized representatives shall have the right to enter, inspect and examine the Project upon
twenty -four (24) hours advance written notice to the Responsible Administrator.
9. REPORTING SCHEDULE
At the time the Contractor submits periodic payment requests, the Contractor shall submit, on a periodic basis,
financial and narrative status reports detailing Project progress and properly documenting all to -date expenditures of
Energy and Mineral Impact Assistance funds. The form and substance of such status reports shall be in accordance
with the procedures developed and prescribed by the State. The preparation of reports in a timely manner shall be
the responsibility of the Contractor and failure to comply may result in the delay of payment of funds and /or
termination of this Contract. Required reports shall be submitted to the State at such time as otherwise specified by
the State.
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EXHIBIT B1
OPTION LETTER
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EIAF #6461 Avon New Energy Communities Initiative Heat Recovery Facility
EXHIBIT B1
Contract Routing #
Encumbrance #
Vendor #
(for Remit Address)
APPR GBL
OPTION LETTER #
(Grant Between Colorado Department of Local Affairs and (Grantee Name and Address)
Date State Fiscal Year Option Letter No
SUBJECT: Option to renew for additional term
In accordance with paragraph 8.b.i of contract routing number between the State of
Colorado, Department of Local Affairs, (Division name) and (Contractor's Name) , the
State hereby exercises the option for an additional term of (OPTION 1) _ ( ) months, (OPTION 2) one (1)
year. The State may exercise this option only once during the duration of the Contract.
The amount of the current Fiscal Year contract value shall remain unchanged. The first sentence in
paragraph 3 of Exhibit A of the Contract is hereby modified accordingly.
The total contract value to include all previous amendments, option letters, etc. is,($ )
APPROVALS: °
State of Colorado:
A
th
Bill Ritter, Jr., Governor �� Y '4
By tE
(for) Susan E. Kirkpatrick, Executive v�r
Department of Local Affairs
Reviewed by:
Pre - approved Form Contract Reviewer
ALL CONTRACTS MUST BE APPROVED BY THE STATE CONTROLLER
CRS 24 -30 -202 requires that the State Controller approve all state contracts. This Option Letter is not
valid until the State Controller, or such assistant as he may delegate, has signed it. The contractor is not
authorized to begin performance under this Option Letter until the Option Letter is signed and dated
below. If performance begins prior to the date below, the State of Colorado may not be obligated to pay
for the goods and / or services provided.
STATE CONTROLLER:
David J. McDermott, CPA
Rose Marie Auten, Controller
Department of Local Affairs
Date
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EIAF #6461 Avon New Energy Communities Initiative Heat Recovery Facility
EXHIBIT B2
CHANGE ORDER LETTER
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EIAF #6461 Avon New Energy Communities Initiative Heat Recovery Facility
CHANGE ORDER LETTER #
EXHIBIT B -2
Contract Routing #
Encumbrance #
Vendor #
(for Remit Address)
APPR GBL
In accordance with paragraph 8.b.ii of contract routing number between the State of
Colorado Department of Local Affairs, and (Name of Contractor ), covering the period of
( include performance period here the State hereby unilaterally modifies the Contract as follows:
(Indicate purpose by choosing at least one of the following)
Choice #1: Responsible Administrator:
Paragraph 2 of the Contract is amended by deleting the name of the current Responsible Administrator in
the first sentence and inserting in lieu thereof the name of the successor Responsible Administrator as
follows:
Choice #2: Administrative Budget Categories: Exhibit A (Statement of Work) to the Contract is
amended by transferring revenues and expenditures among administrative categories of paragraph 4
(Budget) as follows:
The total revenues and expenditures set forth in paragraph 4 of Exhibit A (Scope of Services) remain
unchanged.
Choice #3: .Cumulative Budgetary Line Item Changes in Excess of the lesser of ten percent (10 %)
or Twenty Thousand Dollars ($20,000.00). Exhibit A (Scope of Services) to the Contract is amended by
modifying paragraph 4 (Budget) as follows:
The total revenues and expenditures set forth in paragraph 4 of Exhibit A (Scope of Services) remain
unchanged.
Choice #4: Remit Address: Exhibit A (Scope of Services) to the Contract is amended by deleting the
current "Remit Address" in paragraph 5 (Remit Address) and inserting in lieu thereof the new "Remit
Address" as follows:
The effective date of this change order is upon approval of the State Controller, or delegee, or
20 , whichever is later.
_6
APPROVALS:
State of Colorado: C
A
Bill Ritter, Jr., Governor _j
By: ` . Date:
(for) Susan E. Kirkpatrick, Execute �7
Department of Local Affairs y
Reviewed by
Pre - approved Form Co! Reviewer
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EIAF #6461 Avon New Energy Communities Initiative Heat Recovery Facility
ALL CONTRACTS MUST BE APPROVED BY THE STATE CONTROLLER
CRS 24 -30 -202 requires that the State Controller approve all state contracts. This contract is not valid
until the State Controller, or such assistant as he may delegate, has signed it. The contractor is not
authorized to begin performance until the contract is signed and dated below. If performance begins prior
to the date below, the State of Colorado may not be obligated to pay for the goods and /or services
provided.
STATE CONTROLLER:
David J. McDermott, CPA —,
l
ak
B y �6=
Rose I ne Avte�,, 6ontroller
� epar ;le ,; !f Local Affairs
liate
flu