Loading...
03-24-2009 State of CO New Energy Communities Grant ContractTOWN OF AVON PROFESSIONAL SERVICES AGREEMENT Independent Contractor Cost Plus Fixed Fee Not to Exceed Contract Project/Services Name: Avon Heat Recovery Project Camp Dresser and McKee, Inc. Contractor: Contractor Business Address: THIS PROFESSIONAL SERVICES AGREEMENT ( "Agreement ") is entered into by and between the Contractor listed above (the "Contractor ") and the TOWN OF AVON, COLORADO ( "Town "), a home rule municipality of the State of Colorado. The Town and the Contractor may be collectively referred to as the "Parties." RECITALS AND REPRESENTATIONS WHEREAS, the Town desires to have performed certain professional services as described in this Agreement; and WHEREAS, the Contractor represents that the Contractor has the skill, ability, and expertise to perform the services described in this Agreement and within the deadlines provided by the Agreement; and WHEREAS, the Town desires to engage the Contractor to provide the services described in this Agreement subject to the terms and conditions of the Agreement. NOW, THEREFORE, in consideration of the benefits and obligations of this Agreement, the Parties mutually agree as follows: 1.0 SERVICES AND CONTRACTOR PERFORMANCE 1.1 Services As directed by and under the supervision of the Town Manager for the Town of Avon, or his designee, the Contractor shall provide the Town with the services described in Exhibit A (the "Services "). 1.2 Schedule The Parties recognize that time is of the essence for the performance of this Agreement and that delays in providing Services will likely cause hardship, costs and damages to the Town. The Contractor agrees to perform the Services according to the schedule attached in Exhibit A (the "Schedule ") and further warrants and represents that the Contractor can perform the Services in accordance with the Schedule, unless delayed by actions of the Town, changes in design by Town, acts of war, extreme weather conditions, or labor strikes. 1.3 Changes to Services The Town may request a change or changes in the Services. Any changes that are mutually agreed upon between the Town and the Contractor shall be made in writing and upon execution by both Parties shall become an amendment to the Services described in this Agreement. To be effective, any written change must be signed by the Contractor and by the Town Council or the Town Manager. Heat Recovery Design and CM Assistance PSA June 2009 1.4 Independent Contractor The Contractor shall perform the Services as an independent contractor and shall not be deemed by virtue of this Agreement to have entered into any partnership, joint venture, employer /employee or other relationship with the Town other than as a contracting party and independent contractor. The Town shall not be obligated to secure, and shall not provide, any insurance coverage or employment benefits of any kind or type to or for the Contractor or the Contractor's employees, sub - Contractors, contractors, agents, or representatives, including coverage or benefits related but not limited to: local, state, or federal income or other tax contributions; insurance contributions (e.g., FICA); workers' compensation; disability, injury, or health; professional liability insurance, errors and omissions insurance; or retirement account contributions. 1.5 Standard of Performance In performing the Services, the Contractor shall use that degree of care, skill, and professionalism ordinarily exercised under similar circumstances by members of the same profession practicing in the State of Colorado. Contractor represents to the Town that the Contractor is, and its employees performing such Services are, properly licensed and /or registered within the State of Colorado for the performance of the Services (if licensure and /or registration is required by applicable law) and that the Contractor and employees possess the skills, knowledge, and abilities to competently, timely, and professionally perform the Services in accordance with this Agreement. In addition, more specific standards of Contractor performance are: ❑ included within Exhibit A; or ❑ attached to this Agreement as Exhibit ; or ® not included and not attached. 2.0 COMPENSATION 2.1 Commencement of and Compensation for Services Following approval of this Agreement by the Town Council and execution of this Agreement by the Mayor, the Contractor shall be authorized to commence performance of the Services as described in Exhibit A subject to the requirements and limitations on compensation as provided by this Section 2.0 and its subsections. A. Cost Plus Fixed Fee Contract The Contractor shall perform the Services and shall invoice the Town for work performed based on the compensation methodology described in Exhibit B . B. Total Compensation for Services Total compensation (including all reimbursable expenses) shall not exceed seven hundred and forty thousand dollars less fifty thousand dollars of "in kind" services. . C. Reimbursable Expenses The following shall be considered "reimbursable expenses" for purposes of this Agreement if directly associated with the Services and may be billed to the Town without administrative mark -up but must be accounted for by the Contractor and Heat Recovery Design and CM Assistance PSA June 2009 2 proof of payment shall be provided by the Contractor with the Contractor's monthly invoices: • Vehicle Mileage (billed at not more than the prevailing per mile charge permitted by the Internal Revenue Service as a deductible business expense) • Printing and Photocopying Related to the Services • Long Distance Telephone Charges Related to the Services • Charges incidental to securing needed information (e.g., charges imposed to obtain recorded documents) • Postage and Delivery Services • Travel expenses, including but not limited to lodging, meals, airfare, rental cars, and taxi services. D. Non - reimbursable Costs, Charges, Fees, or Other Expenses Any fee, cost, charge, fee, or expense incurred by the Contractor not otherwise specifically authorized by this Agreement shall be deemed a non - reimbursable cost and shall be borne by the Contractor and shall not be billed or invoiced to the Town and shall not be paid by the Town. E. Increases in Compensation or Reimbursable Expenses Any increases or modification of compensation or reimbursable expenses shall be subject to the approval of the Town and shall be made only by written amendment of this Agreement executed by both Parties. 2.2 NOT USED 2.3 Payment Processing The Contractor shall submit invoices and requests for payment in a form acceptable to the Town. Invoices shall not be submitted more often than once each month unless otherwise approved by this Agreement or in writing by the Town. Unless otherwise directed or accepted by the Town, all invoices shall contain sufficient information to account for all Contractor time (or other appropriate measure(s) of work effort) and all authorized reimbursable expenses for the Services during the stated period of the invoice. Following receipt of a Contractor's invoice, the Town shall promptly review the Contractor's invoice. 2.4 Town Dispute of Invoice or Invoiced Item(s) The Town may dispute any Contractor time, reimbursable expense, and /or compensation requested by the Contractor described in any invoice and may request additional information from the Contractor substantiating any and all compensation sought by the Contractor before accepting the invoice. When additional information is requested by the Town, the Town shall advise the Contractor in writing, identifying the specific item(s) that are in dispute and giving specific reasons for any request for information. The Town shall pay the Contractor within forty -five (45) days of the receipt of an invoice for any undisputed charges or, if the Town disputes an item or invoice and additional information is requested, within thirty (30) days of acceptance of the item or invoice by the Town following receipt of the information requested and resolution of the dispute. To the extent possible, undisputed Heat Recovery Design and CM Assistance PSA June 2009 3 charges within the same invoice as disputed charges shall be timely paid in accordance with this Agreement. Payment by the Town shall be deemed made and completed upon hand delivery to the Contractor or designee of the Contractor or upon deposit of such payment or notice in the U.S. Mail, postage pre -paid, addressed to the Contractor. 3.0 4.0 CONTRACTOR'S GENERAL RESPONSIBILITIES 3.1 The Contractor shall become fully acquainted with the available information related to the Project. The Contractor is obligated to affirmatively request from the Town such information that the Contractor, based on the Contractor's professional experience, should reasonably expect is available and which would be relevant to the performance of the Services. 3.2 The Contractor shall perform the Services in accordance with this Agreement and shall promptly inform the Town concerning ambiguities and uncertainties related to the Contractor's performance that are not addressed by the Agreement. 3.3 The Contractor shall provide all of the Services in a timely and professional manner. 3.4 The Contractor shall promptly comply with any written Town request for the Town or any of its duly authorized representatives to reasonably access and review any books, documents, papers, and records of the Contractor that are pertinent to the Contractor's performance under this Agreement for the purpose of the Town performing an audit, examination, or other review of the Services. 3.5 The Contractor shall comply with all applicable federal, state and local laws, ordinances, regulations, and resolutions. 3.6 The Contractor shall be responsible at the Contractor's expense for obtaining, and maintaining in a valid and effective status, all licenses and permits necessary to perform the Services unless specifically stated otherwise in this Agreement. TERM AND TERMINATION 4.1 Term This Agreement shall be effective on the day of , 2009 at 12:01 a.m., (the "Effective Date ") and shall terminate at 11:59 p.m. on June 1, 2011, or on the earlier of: (a) completion of the Services; or (b) a date of termination as may be permitted by this Agreement; provided, however, that the Parties may mutually agree in writing to the monthly extension of this Agreement for up to twenty -four (24) consecutive calendar months. 4.2 Continuing Services Required The Contractor shall perform the Services in accordance with this Agreement commencing on the Effective Date until such Services are terminated or suspended in accordance with this Agreement. The Contractor shall not temporarily delay, postpone, or suspend the performance of the Services without the written consent of the Town Council or Town Manager. Heat Recovery Design and CM Assistance PSA June 2009 4 4.3 Town Unilateral Termination This Agreement may be terminated by the Town for any or no reason upon written notice delivered to the Contractor at least ten (10) days prior to termination. In the event of the Town's exercise of the right of unilateral termination as provided by this paragraph: A. Unless otherwise provided in any notice of termination, the Contractor shall provide no further services in connection with this Agreement after receipt of a notice of termination; and B. All finished or unfinished documents, data, studies and reports prepared by the Contractor pursuant to this Agreement shall be delivered by the Contractor to the Town and shall become the property of the Town; and C. The Contractor shall submit to the Town a final accounting and final invoice of charges for all outstanding and unpaid Services and reimbursable expenses performed prior to the Contractor's receipt of notice of termination and for any services authorized to be performed by the notice of termination as provided by Section 4.3(A) above. Such final accounting and final invoice shall be delivered to the Town within thirty (30) days of the date of termination; thereafter, no other invoice, bill, or other form of statement of charges owing to the Contractor shall be submitted to or accepted by the Town. 4.4 Termination for Non - Performance Should a party to this Agreement fail to materially perform in accordance with the terms and conditions of this Agreement, this Agreement may be terminated by the performing party if the performing party first provides written notice to the non - performing party which notice shall specify the non - performance, provide both a demand to cure the non - performance and reasonable time to cure the non - performance, and state a date upon which the Agreement shall be terminated if there is a failure to timely cure the non - performance. For purpose of this Section 4.4, "reasonable time" shall be not less than five (5) business days. In the event of a failure to timely cure a non - performance and upon the date of the resulting termination for non- performance, the Contractor shall prepare a final accounting and final invoice of charges for all performed but unpaid Services and authorized reimbursable expenses. Such final accounting and final invoice shall be delivered to the Town within fifteen (15) days of the date of termination; thereafter, no other invoice, bill, or other form of statement of charges owing to the Contractor shall be submitted to or accepted by the Town. Provided that notice of non - performance is provided in accordance with this Section 4.3, nothing in this Section 4.3 shall prevent, preclude, or limit any claim or action for default or breach of contract resulting from non - performance by a Party. 4.5 Unilateral Suspension of Services The Town may suspend the Contractor's performance of the Services at the Town's discretion and for any reason by delivery of written notice of suspension to the Contractor which notice shall state a specific date of suspension. Upon receipt of such notice of suspension, the Contractor shall immediately cease performance of the Services on the date of suspension except: (1) as may be specifically authorized by the notice of suspension (e.g., to secure the work area from damage due to weather or to complete a specific report or study); or (2) for the submission of an invoice for Heat Recovery Design and CM Assistance PSA June 2009 5 Services performed prior to the date of suspension in accordance with this Agreement. 4.6 Reinstatement of Services Following Town's Unilateral Suspension The Town may at its discretion direct the Contractor to continue performance of the Services following suspension. If such direction by the Town is made within (30) days of the date of suspension, the Contractor shall recommence performance of the Services in accordance with this Agreement. If such direction to recommence suspended Services is made more than thirty -one (31) days following the date of suspension, the Contractor may elect to: (1) provide written notice to the Town that such suspension is considered a unilateral termination of this Agreement pursuant to Section 4.3; or (2) recommence performance in accordance with this Agreement; or (3) if suspension exceeded sixty (60) consecutive days, request from the Town an equitable adjustment in compensation or a reasonable re -start fee and, if such request is rejected by the Town, to provide written notice to the Town that such suspension and rejection of additional compensation is considered a unilateral termination of this Agreement pursuant to Section 4.3. Nothing in this Agreement shall preclude the Parties from executing a written amendment or agreement to suspend the Services upon terms and conditions mutually acceptable to the Parties for any period of time. 4.7 Delivery of Notice of Termination Any notice of termination permitted by this Section 4.0 and its subsections shall be addressed to the person signing this Agreement on behalf of either Town or Contractor at the address shown below or such other address as either party may notify the other of and shall be deemed given upon delivery if personally delivered, or forty -eight (48) hours after deposited in the United States mail, postage prepaid, registered or certified mail, return receipt requested. 5.0 INSURANCE 5.1 Insurance Generally The Contractor shall obtain and shall continuously maintain during the term of this Agreement insurance of the kind and in the minimum amounts specified as follows (check one): ® The Contractor shall obtain and maintain the types, forms, and coverage(s) of insurance deemed by the Contractor to be sufficient to meet or exceed the Contractor's minimum statutory and legal obligations arising under this Agreement ( "Contractor Insurance "); OR ❑ The Contactor shall secure and maintain the following ( "Required Insurance "): ❑ Worker's Compensation Insurance in the minimum amount required by applicable law for all employees and other persons as may be required by law. Such policy of insurance shall be endorsed to include the Town as a Certificate Holder. ❑ Comprehensive General Liability insurance with minimum combined single limits of Dollars ($__) each occurrence Heat Recovery Design and CM Assistance PSA June 2009 6 and of Dollars ($___) aggregate. The policy shall be applicable to all premises and all operations of the Contractor. The policy shall include coverage for bodily injury, broad form property damage (including completed operations), personal injury (including coverage for contractual and employee acts), blanket contractual, independent contractors, products, and completed operations. The policy shall contain a severability of interests provision. Coverage shall be provided on an "occurrence" basis as opposed to a "claims made" basis. Such insurance shall be endorsed to name the Town as Certificate Holder and name the Town, and its elected officials, officers, employees and agents as additional insured parties. ❑ Comprehensive Automobile Liability insurance with minimum combined single limits for bodily injury and property damage of not less than of n/a Dollars ($n /a) each occurrence with respect to each of the Contractor's owned, hired and non -owned vehicles assigned to or used in performance of the Services. The policy shall contain a severability of interests provision. Such insurance coverage must extend to all levels of subcontractors. Such coverage must include all automotive equipment used in the performance of the Agreement, both on the work site and off the work site, and such coverage shall include non - ownership and hired cars coverage. Such insurance shall be endorsed to name the Town as Certificate Holder and name the Town, and its elected officials, officers, employees and agents as additional insured parties. ❑ Professional Liability (errors and omissions) Insurance with a minimum limit of coverage of n/a Dollars ($n /a) per claim and annual aggregate. Such policy of insurance shall be obtained and maintained for one (1) year following completion of all Services under this Agreement. Such policy of insurance shall be endorsed to include the Town as a Certificate Holder. The Required Insurance, if required under this Section, shall be procured and maintained with insurers with an A- or better rating as determined by Best's Key Rating Guide, shall be continuously maintained to cover all liability, claims, demands, and other obligations assumed by the Contractor, shall not contain any exclusion for bodily injury or property damage arising from completed operations, and shall provide that the Town will receive notice no less than thirty (30) days prior to any cancellation, termination, or a material change in such policy. 5.2 Additional Requirements for All Policies In addition to specific requirements imposed on insurance by this Section 5.0 and its subsections, insurance shall conform to all of the following: A. For both Contractor Insurance and Required Insurance, all policies of insurance shall be primary insurance, and any insurance carried by the Town, its officers, or its employees shall be excess and not contributory Heat Recovery Design and CM Assistance PSA June 2009 7 insurance to that provided by the Contractor; provided, however, that the Town shall not be obligated to obtain or maintain any insurance whatsoever for any claim, damage, or purpose arising from or related to this Agreement and the Services. The Contractor shall not be an insured party for any Town - obtained insurance policy or coverage. B. For both Contractor Insurance and Required Insurance, the Contractor shall be solely responsible for any deductible losses. 5.3 Failure to Obtain or Maintain Insurance The Contractor's failure to obtain and continuously maintain policies of insurance in accordance with this Section 5.0 and its subsections shall not limit, prevent, preclude, excuse, or modify any liability, claims, demands, or other obligations of the Contractor arising from performance or non - performance of this Agreement. Failure on the part of the Contractor to obtain and to continuously maintain policies providing the required coverage, conditions, restrictions, notices, and minimum limits shall constitute a material breach of this Agreement upon which the Town may immediately terminate this Agreement, or, at its discretion, the Town may procure or renew any such policy or any extended reporting period thereto and may pay any and all premiums in connection therewith, and all monies so paid by the Town shall be repaid by Contractor to the Town immediately upon demand by the Town, or at the Town's sole discretion, the Town may offset the cost of the premiums against any monies due to the Contractor from the Town pursuant to this Agreement. 5.4 Insurance Certificates Prior to commencement of the Services, the Contractor shall submit to the Town certificates of insurance for all Required Insurance. Insurance limits, term of insurance, insured parties, and other information sufficient to demonstrate conformance with this Section 5.0 and its subsections shall be indicated on each certificate of insurance. Certificates of insurance shall reference the Project Name as identified on the first page of this Agreement. The Town may request and the Contractor shall provide within three (3) business days of such request a current certified copy of any policy of Required Insurance and any endorsement of such policy. The Town may, at its election, withhold payment for Services until the requested insurance policies are received and found to be in accordance with the Agreement. 6.0 OWNERSHIP OF DOCUMENTS /COPYRIGHT 6.1 Any work product, materials, and documents produced by the Contractor pursuant to this Agreement shall become property of the Town of Avon upon delivery and shall not be made subject to any copyright unless authorized by the Town. Other materials, methodology and proprietary work used or provided by the Contractor to the Town not specifically created and delivered pursuant to the Services outlined in this Agreement may be protected by a copyright held by the Contractor and the Contractor reserves all rights granted to it by any copyright. The Town shall not reproduce, sell, or otherwise make copies of any copyrighted material, subject to the following exceptions: (1) for exclusive use internally by Town staff and /or employees; or (2) pursuant to a request under the Colorado Open Records Act, § 24 -72 -203, C.R.S., to the extent that such statute applies; Heat Recovery Design and CM Assistance PSA June 2009 8 or (3) pursuant to law, regulation, or court order. The Contractor waives any right to prevent its name from being used in connection with the Services. 6.2 The Town agrees to the fullest extent permitted by law to indemnify and hold harmless the Contractor from any damages, liabilities or costs, including reasonable attorneys' fees and costs of defense, arising out of the use or modifications by the Town of any reports, plans, specifications or other construction documents prepared by the Contractor if such use or modification has not been approved in writing by the Contractor and its sub - Contractors, which approval shall not be unreasonably withheld. The indemnification provision shall survive the termination of this agreement. 7.0 CONFLICT OF INTEREST The Contractor shall refrain from providing services to other persons, firms, or entities that would create a conflict of interest for the Contractor with regard to providing the Services pursuant to this Agreement. The Contractor shall not offer or provide anything of benefit to any Town official or employee that would place the official or employee in a position of violating the public trust as provided by C.R.S. § 24 -18 -109, as amended, or any Town — adopted Code of Conduct or ethical principles. 1 Z_u § In addition to any other remedies provided for in this Agreement, and without limiting its remedies available at law, the Town may exercise the following remedial actions if the Contractor substantially fails to perform the duties and obligations of this Agreement. Substantial failure to perform the duties and obligations of this Agreement shall mean a significant, insufficient, incorrect, or improper performance, activities or inactions by the Contractor. The remedial actions include: A. Suspend the Contractor's performance pending necessary corrective action as specified by the Town without the Contractor's entitlement to an adjustment in any charge, fee, rate, price, cost, or schedule; and /or B. Withhold payment to the Contractor until the necessary services or corrections in performance are satisfactorily completed; and /or C. Deny payment for those services which have not been satisfactorily performed, and which, due to circumstances caused by the Contractor, can not be performed, or if performed would be of no value to the Town; and /or D. Terminate this Agreement in accordance with this Agreement. The foregoing remedies are cumulative and the Town, it its sole discretion, may exercise any or all of the remedies individually or simultaneously. 9.0 MISCELLANEOUS PROVISIONS 9.1 No Waiver of Rights A waiver by any Party to this Agreement of the breach of any term or provision of this Agreement shall not operate or be construed as a Heat Recovery Design and CM Assistance PSA June 2009 9 waiver of any subsequent breach by either Party. The Town's approval or acceptance of, or payment for, services shall not be construed to operate as a waiver of any rights or benefits to be provided under this Agreement. No covenant or term of this Agreement shall be deemed to be waived by the Town except in writing signed by the Town Council or by a person expressly authorized to sign such waiver by resolution of the Town Council of the Town of Avon, and any written waiver of a right shall not be construed to be a waiver of any other right or to be a continuing waiver unless specifically stated. 9.2 No Waiver of Governmental Immunity Nothing in this Agreement shall be construed to waive, limit, or otherwise modify any governmental immunity that may be available by law to the Town, its officials, employees, contractors, or agents, or any other person acting on behalf of the Town and, in particular, governmental immunity afforded or available pursuant to the Colorado Governmental Immunity Act, Title 24, Article 10, Part 1 of the Colorado Revised Statutes. 9.3 Affirmative Action Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex or national origin. Contractor will take affirmative action to ensure applicants are employed, and employees are treated during employment without regard to their race, color, religion, sex or national origin. Such action shall include, but not be limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. 9.4 Binding Effect The Parties agree that this Agreement, by its terms, shall be binding upon the successors, heirs, legal representatives, and assigns; provided that this Section 9.4 shall not authorize assignment. 9.5 No Third Party Beneficiaries Nothing contained in this Agreement is intended to or shall create a contractual relationship with, cause of action in favor of, or claim for relief for, any third party, including any agent, sub - Contractor or sub- contractor of Contractor. Absolutely no third party beneficiaries are intended by this Agreement. Any third -party receiving a benefit from this Agreement is an incidental and unintended beneficiary only. See additional requirements listed in Exhibit A. 9.6 Article X, Section 20/TABOR The Parties understand and acknowledge that the Town is subject to Article X, § 20 of the Colorado Constitution ( "TABOR "). The Parties do not intend to violate the terms and requirements of TABOR by the execution of this Agreement. It is understood and agreed that this Agreement does not create a multi - fiscal year direct or indirect debt or obligation within the meaning of TABOR and, therefore, notwithstanding anything in this Agreement to the contrary, all payment obligations of the Town are expressly dependent and conditioned upon the continuing availability of funds beyond the term of the Town's current fiscal period ending upon the next succeeding December 31. Financial obligations of the Town payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available in accordance with the rules, regulations, and Heat Recovery Design and CM Assistance PSA June 2009 10 resolutions of Town of Avon, and other applicable law. Upon the failure to appropriate such funds, this Agreement shall be terminated. 9.7 Governing Law, Venue, and Enforcement This Agreement shall be governed by and interpreted according to the law of the State of Colorado. Venue for any action arising under this Agreement shall be in the appropriate court for Eagle County, Colorado. To reduce the cost of dispute resolution and to expedite the resolution of disputes under this Agreement, the Parties hereby waive any and all right either may have to request a jury trial in any civil action relating primarily to the enforcement of this Agreement. The Parties agree that the rule that ambiguities in a contract are to be construed against the drafting party shall not apply to the interpretation of this Agreement. If there is any conflict between the language of this Agreement and any exhibit or attachment, the language of this Agreement shall govern. The Parties agree to consider in good faith the use of mediation prior to commencing any litigation. 9.8 Survival of Terms and Conditions The Parties understand and agree that all terms and conditions of the Agreement that require continued performance, compliance, or effect beyond the termination date of the Agreement shall survive such termination date and shall be enforceable in the event of a failure to perform or comply. 9.9 Assignment and Release All or part of the rights, duties, obligations, responsibilities, or benefits set forth in this Agreement shall not be assigned by Contractor without the express written consent of the Town Council for Town of Avon. Any written assignment shall expressly refer to this Agreement, specify the particular rights, duties, obligations, responsibilities, or benefits so assigned, and shall not be effective unless approved by resolution or motion of the Town Council for the Town of Avon. No assignment shall release the Applicant from performance of any duty, obligation, or responsibility unless such release is clearly expressed in such written document of assignment. 9.10 Paragraph Captions The captions of the paragraphs are set forth only for the convenience and reference of the Parties and are not intended in any way to define, limit or describe the scope or intent of this Agreement. 9.11 Integration and Amendment This Agreement represents the entire and integrated agreement between the Town and the Contractor and supersedes all prior negotiations, representations, or agreements, either written or oral. Any amendments to this must be in writing and be signed by both the Town and the Contractor. 9.12 Severability Invalidation of any of the provisions of this Agreement or any paragraph sentence, clause, phrase, or word herein or the application thereof in any given circumstance shall not affect the validity of any other provision of this Agreement. 9.13 Incorporation of Exhibits Unless otherwise stated in this Agreement, exhibits, applications, or documents referenced in this Agreement shall be incorporated into this Agreement for all purposes. In the event of a conflict between any Heat Recovery Design and CM Assistance PSA June 2009 11 incorporated exhibit and this Agreement, the provisions of this Agreement shall govern and control. 9.14 Employment of or Contracts with Illegal Aliens [Applicable if required by Colorado law for this Agreement]. Contractor shall not knowingly employ or contract with an illegal alien to perform work under this Agreement. Contractor shall not contract with a subcontractor that fails to certify that the subcontractor does not knowingly employ or contract with any illegal aliens. By entering into this Agreement, Contractor certifies as of the date of this Agreement it does not knowingly employ or contract with an illegal alien who will perform work under the public contract for services and that the contractor will participate in the e- verify program or department program in order to confirm the employment eligibility of all employees who are newly hired for employment to perform work under the public contract for services. The Contractor is prohibited from using either the e- verify program or the department program procedures to undertake pre- employment screening of job applicants while this Agreement is being performed. If the Contractor obtains actual knowledge that a subcontractor performing work under this Agreement knowingly employs or contracts with an illegal alien, the Contractor shall be required to notify the subcontractor and the City within three (3) days that the Contractor has actual knowledge that a subcontractor is employing or contracting with an illegal alien. The Contractor shall terminate the subcontract if the subcontractor does not stop employing or contracting with the illegal alien within three (3) days of receiving the notice regarding Contractor's actual knowledge. The Contractor shall not terminate the subcontract if, during such three days, the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. The Contractor is required to comply with any reasonable request made by the Department of Labor and Employment made in the course of an investigation undertaken to determine compliance with this provision and applicable state law. If the Contractor violates this provision, the City may terminate this Agreement, and the Contractor may be liable for actual and /or consequential damages incurred by the City, notwithstanding any limitation on such damages provided by such Agreement. 9.15 Compliance with Article XXVIII of the Colorado Constitution [Applicable if required by Colorado law for this Agreement]. If and only to the extent this Agreement constitutes a "sole source government contract" within the meaning of Article XXVIII of the Colorado Constitution ( "Article XXVIII "), then the provisions of Sections 15 through 17 of Article XXVIII ( "Amendment 54 ") are hereby incorporated into this Agreement and the Parties shall comply with the provisions of Amendment 54. In such a case, for purposes of this Agreement, Contractor shall constitute a "contract holder" for purposes of Amendment 54, as shall any additional persons, officers, directors or trustees related to Contractor who qualify as "contract holders" pursuant to the definition set forth in Article XXVIII. In addition, if and only to the extent this Agreement constitutes a "sole source government contract," the Contractor hereby certifies that it is not ineligible to hold any "sole source government contract" pursuant to Amendment 54 or any contract thereunder, and the Contractor hereby agrees to notify the Town immediately if, at any point during the term of this Agreement, the Contractor shall become ineligible to hold any "sole source government contract" pursuant to Amendment 54 or any contract thereunder. If any provision or Heat Recovery Design and CM Assistance PSA June 2009 12 provisions of Amendment 54 are held to be unconstitutional or otherwise invalid by a court of competent jurisdiction in a non - appealable action, have been repealed retroactively or otherwise do not apply to this Agreement, such provision or provisions shall no longer be incorporated into this Agreement and the parties hereto shall have no obligations under such provision or provisions. 9.16 Notices Unless otherwise specifically required by a provision of this Agreement any notice required or permitted by this Agreement shall be in writing and shall be deemed to have been sufficiently given for all purposes if sent by certified mail or registered mail, postage and fees prepaid, addressed to the Party to whom such notice is to be given at the address set forth below or at such other address as has been previously furnished in writing, to the other Party. Such notice shall be deemed to have been given when deposited in the United States Mail properly addressed to the intended recipient. If to the Town If to the Contractor Larry Brooks, Town Manager Jason Makofsky Town of Avon CDM, Inc. 1 Lake Street One Cambridge Place P.O. Box 975 50 Hampshire Street Avon, CO 81620 Cambridge, MA 02139 Phone: (970) 748 -4000 (not constituting notice) Phone: (617) 452 -6000 (not Fax: (970) 949 -9139 (not constituting notice) constituting notice) Fax: (617) 452 -8000 (not constituting notice) With Copy to: Eric Heil, Town Attorney Town of Avon Widner Michow & Cox, LLP 13133 East Arapahoe Road Centennial, CO 80112 10.0 SPECIAL PROVISIONS .- ❑ Attached to this Agreement as Exhibit ; or ❑ As follows: Heat Recovery Design and CM Assistance PSA June 2009 13 11.0 AUTHORITY The individuals executing this Agreement represent that they are expressly authorized to enter into this Agreement on behalf of Town of Avon and the Contractor and bind their respective entities. REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK - SIGNATURE PAGE FOLLOWS Heat Recovery Design and CM Assistance PSA June 2009 14 THIS AGREEMENT is executed and made effective as provided above. TOWN OF AVON, COLORADO r 3y: C. Mayor For Town Attorney's Office CONTRACTOR: By:�� Printed Name: —ter «r ��Nr►�� �5 ��-►� Heat Recovery Design and CM Assistance PSA June 2009 15 THIS AGREEMENT is executed and made effective as provided above. T TOWN OF AVON, COLORADO gy; Mayor crMdyo -Pm T�rrt J V APP S TO 3 c C AJ0 For Town Att rney's Office CONTRACTOR: By: arl Heat Recovery Design and CM Assistance PSA June 2009 15 EXHIBIT A SERVICES AND SCHEDULE OF COMPLETION This Exhibit A Scope of Work is organized as follows: Project Overview Stakeholder Relationships Description of Scope of Services by Task Task 1. Design of construction contract documents 1.1 Management and Coordination 1.2 Design Submittals 1.3 Mechanical Engineering 1.4 Electrical and Controls Design 1.5 Topographic Survey 1.6 Civil Engineering 1.7 Architecture 1.8 Geotechnical Engineering Task 2. Bid Assistance Task 3. Engineering Support During Construction Task 4. Meeting Attendance Task 5. System Performance Analysis Schedule Exclusions and Additional Services Exhibit B addresses compensation. Project Overview This Scope of Work for professional services is for the completion of the Design, Construction Phase Services, and Performance Testing of the Community Heat Recovery Facility as described for the "Core System" in the preliminary engineering report entitled Avon Community Heat Recovery Implementation Plan (CDM, January 2009), unless variance from this plan is explicitly identified herein. The resulting facility shall deliver at least 6.8 million BTU /hr of heat into a buried piping distribution loop in Avon's town core area, whereby the source of this heat is wastewater treatment plant effluent, electricity, and natural gas. The Town of Avon (Town) and the Eagle River Water and Sanitation District (ERWSD) are anticipated to be the users of this heat for 20 to 40 years. The core elements of the system will be located at one of the following three addresses (or in the pipe corridors connecting these addresses): Avon Wastewater Treatment Facility - 950 West Beaver Creek Blvd., Avon Colorado 81620 Avon Municipal Building - One Lake Street, Avon Colorado 81620 Avon Recreation Center — 90 Lake Street, Avon Colorado 81620 The Heat Recovery Facility will utilize glycol -water mixture to deliver heat where this process fluid is in the temperature range of 130 to 135° F. Heat will be provided by a combination of a hot water boiler and a heat pump. This system can best be summarized with respect to the two new buildings, the connective piping between the buildings, and three immediate end uses for Heat Recovery Design and CM Assistance Scope of Work June 2009 Exhibit A - Page 1 the heat. These immediate uses are located at the Avon Recreation Center mechanical room (pool boilers and heat exchangers) and a small building located on the Avon WWTF plant property. Heat Pump Building - The heat pump and support equipment will be located within a common building called the "Heat Pump Building" as described in the Implementation Plan. The Consultant will not include the natural gas boiler into this building if it is possible to instead located it in the Snowmelt Building. The location of the building will be within the property lines of the Avon WWTF. The exact location of the building will be decided upon by the Town of Avon (with input from ERWSD) after site civil design has been initiated and buried utilities have been field located. The architecture of this building shall be similar to the water pump building located on the Avon WWTF property. Snowmelt Building — As part of the heat recovery system, a new building adjacent to the Town's Recreation Center (aka "Snowmelt Building ") will be designed and constructed as part of this project. This building is described in the Implementation Plan. The Snowmelt Building will house the snowmelt heat system main heat exchanger, which will transfer heat from the heat recovery system to the snowmelt system, and also house pumps for the main snowmelt heat exchanger and for the pool heat exchangers located in the recreation center. The Consultant will include the natural gas boiler into this building. This Snowmelt Building will also house two snowmelt heat loop pumps, a snowmelt glycol feed assembly, a snowmelt expansion tank, and a snowmelt pot feeder. The snowmelt pot feeder, snowmelt expansion tank, snowmelt glycol feed assembly, and the snowmelt loop pumps will be designed, procured, and installed under separate contracts (i.e., by others); the Contractor is responsible to make sure sufficient space is provided in this building for this other equipment. The Snowmelt Building will be heated by the Heat Recovery System (e.g., via a heat exchanger installed in this project). The SCADA system and one terminal (HMI) is planned to be housed in this building as well; this station will allow monitoring, data capture, and control of all mechanical equipment and appurtenances in the Heat Recovery System consistent with the developed strategies developed during design (e.g., those that are Town -owned and Common Property). The architecture of this building shall complement the existing Avon Recreation Center. Connective Piping — Buried wastewater and specialized heat recovery loop piping will be designed by CDM in this project and installed by the construction contractor. This piping carries the process fluids through distribution loops. The buried wastewater piping will connect to a newly installed manhole in Avon WWTF effluent line with a process sump in the Heat Pump Building. It will also return the wastewater to a second manhole on the effluent line downstream of the heat pump. The other loop carries a hot propylene glycol solution from the Heat Pump Building (at the Avon WWTF) to the Snowmelt Building. "Stub outs" from the main distribution loop will be designed on the heat recovery loop and installed at a location approximately 120 ft west of the Snowmelt Building which will later be used to connect up to a snow melt system (snow melt system to be designed and installed by others under a separate contract for the Main Street Project). CDM shall specify the effluent piping and the specialty heat loop piping, including insulation, pipe supports, expansion systems, pipe bedding, etc. such that it is suitable for use in Avon's alpine climate, can be protected from crushing during construction and backfill, and results in minimal energy loss for the process fluids. Modifications in the Avon Recreation Center Mechanical Room — CDM will design modifications to the recreation center pool heating system to tie -in to the heat recovery loop as described in the Implementation Plan. This will include design heat exchangers, control valves, and connective piping and appurtenances and modification to the existing recreation center pool Heat Recovery Design and CM Assistance Scope of Work June 2009 Exhibit A - Page 2 heating loops as determined during final design. Recreation center pool heat exchangers will be located in the existing recreation center mechanical room. Design of replacement of existing recreation center pool heating boilers is not included as part of this design. Modifications in the Avon WWTF Process Building — No modifications inside the Avon WWTF Process Building will be designed or constructed during this project. The project includes design and construction of a piping stub out from the main distribution loop to allow for future connection (to be conducted by the ERWSD directly). Space for an automatically actuated and modulating control valve, flow meter, and associated 1/0 and control via the SCADA system will provided within the Heat Pump Building for this future work. Modifications in the Raw Water Booster Pump Station ( RWBPS)— The existing RWBPS is located inside the Avon WWTF fenceline and will be adjacent to the new Heat Pump Bld. The project includes design and construction of heat delivery from the main distribution loop to the RWBPS for heating of this building. Stakeholder Relationships As contributors of funding and /or facilities, the State of Colorado's Department of Local Affairs (DOLA), State of Colorado Governors Energy Office (GEO) and the ERWSD are all stakeholders in this project. An easement for buried pipe crossings from Union Pacific Railroad (UPRR) will be needed to implement this project. Acting as an agent for the Town, the Contractor has some special obligations in this project related to these stakeholder relationships. GEO — Governor Ritter and his energy office staff are important project supporters. GEO was one of the advocates for awarding the Town the New Energy Communities Grant (administered by DOLA). Performance testing will be conducted by the Contractor and fulfills one of the requirements of the grant contract. The Contractor will be prepared to support press releases, photo shoots, and other media - related coverage of this project. DOLA — DOLA is a financial contributor to the project and also a project supporter. The Town and DOLA have a grant contract which defines roles and responsibilities. A copy of this Contract has been provided to the Contractor for information. The Town will manage the grant contract and requests for reimbursements from the state. The Contractor will provide invoicing information (including back -up documentation when necessary) consistent with the format required by the state as shown in the grant contract documents. ERWSD — The ERWSD is a contributor to the project and is the owner of land where some of the facilities to be designed and built in this project reside. The Town and ERWSD have entered into an Intergovernmental Agreement (IGA) to cooperate on this project. Each party to the IGA has obligations and responsibilities. A copy of this IGA has been provided to the Contractor for information. Although there is no direct contractual relationship between the Contractor and the ERWSD on this project, the IGA influences this scope of work and puts a high level of expectation upon the Contractor to follow communication protocols and be responsive. Heat Recovery Design and CM Assistance Scope of Work June 2009 Exhibit A - Page 3 UPRR — The Town is responsible to obtain an easement from UPRR for buried pipe crossings. As an early deliverable, the Contractor must design this crossing and obtain a legal description which the Town can use to obtain this easement. Although there is no direct contractual relationship between the Contractor and DOLA, GEO, or ERWSD on this project, these stakeholders and the associated other project - related agreements have influenced this scope of work. In particular, the high degree of public interest and state funding puts a high level of expectation upon the Contractor to deliver a successful and well - publicized project. However, the Contractor remains directly responsible to the Town for working within the established scope, schedule, budget, and quality metrics. The Contractor and it's subcontractors will not act on verbal or written direction from these stakeholders or other outside parties without prior approval of the Town's project manager. Any such action will be considered pursuant to Section 2D and Section 7. Description of Scope of Services by Task Task 1 - Design of Construction Contract Documents The design phase of this project is described in this section organized by technical discipline and management role. CDM staff will conduct management and coordination, mechanical engineering, electrical and controls engineering, structural engineering and architectural design. 1.1 Management and Coordination The Contractor will provide project management consistent with best practices to coordinate the work defined in this scope. Key responsibilities include development of a Work Plan, subcontracting services, accounting and invoicing, and quality assurance and quality control activities. Work Plan - It is very important in this project, especially with the number of stakeholders involved and a relatively tight schedule, that the Contractor and its subcontractors establish and follow a definitive work plan. The Contractor will prepare a detailed Work Plan which identifies communication protocol, contact list, task assignments, a list of needed documents (from the town or project stakeholders), ki fidget breakdown by task, deliverable and meeting dates, printing and distribution, and schedule milestones. The Contractor should identify in the Work Plan any task assignments and Contractor deliverables by the Town or others that are needed in order to maintain the project schedule (e.g., obtain railroad easement). Subcontracts - CDM will prepare, execute, and manage subcontracts as needed to carry out this scope of work. This includes controlling scope, schedule, budget, and quality metrics of performance. The Town understands that CDM intends to subcontract the following work: Topographic survey, site civil engineering, and landscape design to Inter - Mountain Engineering (IME); Geotechnical engineering to HP Geotech (HP); Architechtural design by Victor Mark Donaldson (VMD), and construction cost estimating to CDM -CCI (a general construction contractor and separate business unit within CDM.) No other subcontractors are anticipated at this time. CDM will notify the Town if changes to the subcontracting plan become necessary during the course of the project. Accounting and Invoicing -: Accurate monthly invoices will be prepared and submitted to the Town as *.pdf. Heat Recovery Design and CM Assistance Scope of Work June 2009 Exhibit A - Page 4 Conducting a constructability reviews to focus on issues of particular significance to the construction phase. Issues frequently reviewed include proposed schedules and contract packaging, construction sequencing within a given project, means and methods of construction specified either explicitly or implicitly, risk allocation and document clarity. QAIQC activities will be performed to review and make corrections on supporting calculations, supplier information and on all deliverables prior to sending to the Town. This work includes interdisciplinary checking of calculations, drawings, specifications and cost estimates are done on the design by each discipline group (e.g., electrical, cost estimating, mechanical) and the project team in order to minimize errors, conflicts, and omissions between interfacing disciplines. 1.2 Design Submittals CDM will prepare construction contract documents (drawings and specifications) for a traditional design- bid -build project delivery method. Deliverables for the final design include a 60% Design Submittal, a 90% Design Submittal, and a Final (100 %) Design Submittal. All drawings will be drafted in AutoCAD 2005 or AutoCAD 2006. The drawings will be developed in D -size (22" by 34 "). Town of Avon will provide comments to CDM in a spreadsheet comment response form on the 60% and 90% submittals. CDM will incorporate Town of Avon's comments on the 60% design submittal into the 90% design submittal, and likewise to produce the 100% set. 60% Design Submittal - For this submittal, the major design elements will be well - established and the supplementary/auxiliary design elements will be in progress. A complete table of contents and drawing list will be provided which identifies the expected complete content of the 100% set. The process and information (P &ID) drawings will be complete and a draft of the control strategies for all major mechanical systems shall be provided. A draft submittal schedule listing due dates for submittals from the general contractor for all major items (e.g., mechanical, electrical, piping or other equipment with long lead times) will be included. The G sheets (general) and any discipline cover sheets shall be complete so that all acronyms, symbols, legends, used in the project etc. are defined. The C sheet plans shall be nearly complete and shall establish the pipe locations and building footprint corners within approximately 6" accuracy. Individual drawings for C, M, E, I, S and sections and details on A sheets shall be drafted complete or nearly complete relative to basic design elements. CDM may put architectural and material specifications directly on the drawings. Auxiliary equipment, sections, and details may still be missing. A draft of all specifications will be included; however specifications may be incomplete and not fully cross - referenced within the set. The 60% Design Submittal shall include • Plans: Ten copies of half size (11" by 17 ") drawings, spiral bound. • Specifications: Ten copies of specifications, double sided, spiral bound. • Construction Cost Estimate. The construction cost estimate will be developed based on the 60% submittal documents and be completed 2 weeks after the 60% submittal has been submitted to the Town of Avon. The Construction Cost Estimate will be submitted as a PDF document via e -mail. • Construction Schedule. The construction schedule will be developed based on the 60% submittal documents and be completed 3 weeks after plans and specifications have been submitted to the Town of Avon. The detailed Construction Schedule will be submitted as a PDF document via e -mail. A summary construction schedule showing the key milestone dates (Award, Mobilization, major equipment order and long -lead time submittal deadlines). Heat Recovery Design and CM Assistance Scope of Work June 2009 Exhibit A - Page 5 • Design Review Approvals: Architectural plan and profile sheets, renderings, materials samples, and a landscaping /revegetation plan shall be complete enough sufficient to obtain both Sketch Plan and Final Design approvals from the Avon Planning and Zoning Commission and Town Council. • Testing Plan - Sufficient detail regarding start -up, commissioning, and performance testing shall be provided in a detailed draft of Specification Section 01660. This includes a list of equipment, instruments, automated valving, software, etc. that will be commissioned together as a "system ". Schedule information shall be included so that the Town can coordinate manpower needs and confirm testing protocol with other stakeholders. 90% Design Submittal - This submittal will include all drawings and specifications, which shall be complete with the exception of minor details or corrections to be inserted between 90% and Final Design Submittals. The 90% Design Submittal will include the following items: • Plans: Ten copies of half size (11" by 17 ") drawings, spiral bound. • Specifications: Ten copies of specifications, double sided, spiral bound. • Construction Cost Estimate. An updated construction cost estimate will be developed based on the 90% submittal documents and be completed 2 weeks after the 90% submittal has been submitted to the Town of Avon. Construction Milestone List- provide key schedule dates for boilerplate documents (Sections OOXXX) to be prepared by Owner. Final (100 %) Design Submittal - The Final Design Submittal is the bid set. Town of Avon's comments on the 90% Design Submittal will be incorporated into the Final Design Submittal. The Final Design Submittal will include the following original documents: o Plans: One full -size (22" by 34 ") set of signed and stamped plans ready for copying. Adobe Reader files ( *.pdf format) and AutoCAD files ( *.dwg) of the drawings will be provided on CD. o Specifications: One set of original specifications suitable for double sided copying. Adobe Reader files ( *.pdf format) of the technical specifications (Division 1 -16) will be provided on CD. Overall Design Assumptions: • Electronic drawings ( *.dwg or *.pdf) of the Town of Avon Recreation Center and the Avon Wastewater Treatment Plant will be provided to CDM within 2 weeks after notice to proceed. Electronic drawings should be as -built showing most recent modifications made to the facilities. If drawings are not up -to -date and depicting the latest facilities, then the Town of Avon shall describe differences between the drawings and the actual field conditions. • This scope has does not include services for field verification on the part of the Engineer for production of as- builts showing conditions post construction. • The railroad pipe crossing will be by bore. • Based on the current project understanding, it is assumed that the disturbance will be less than 1 acre, the added impervious surfaces will be less than 25,000 square feet and parking and pavement will not be added; thus a Stormwater Management Plan (Pollution Control Plan or PCP) is not included in the scope. The Engineer will produce specifications requiring the general construction contractor to prepare and submit a PCP Heat Recovery Design and CM Assistance Scope of Work June 2009 Exhibit A - Page 6 requiring use of best practices for storm water management for approval prior to initiating field construction. • Fire protection systems will be specified for performance 1.3 Mechanical Engineering The mechanical design includes the completion of design elements including drawings and specifications to permit the bidding and construction of the mechanical portions of the Avon Heat Recovery Project. CDM will be doing the process engineering and their subconsultant, VIVID will be doing the HVAC mechanical design work. A copy of all studies or other technical evaluations performed under this scope item will be provided to the Town via technical memorandums. The following tasks will be completed. • Design the HVAC systems design for the new heat pump building and the snowmelt building. • Design and selection of the heat pump and the secondary loop associated with the heat pump. • Design of submersible effluent sump pumps for the heat pump building sump system to pump wastewater effluent through the heat exchanger and return it to the effluent wastewater treatment plant effluent line. • Design and selection of the supplemental boiler, including the boiler flue, the boiler secondary loop system, and the natural gas delivery for the new boiler. • Design and selection of the main snowmelt heat exchanger, including the secondary loop system associated with this heat exchanger. • Design and selection of recreation center pool heat exchangers, including the secondary loop associated with this loop. • Design of exterior mechanical piping systems (including buried and above ground piping) connecting 1) the manholes to /from Heat Pump Building located on the Avon WWTF site, 2) Heat Pump Building to /from the Snowmelt Building, 3) the Snowmelt Building to /from the Recreation Center Bld., and 4) Heat Pump Bld to /from the RWBPS. • Design of interior mechanical piping systems within 1) the Heat Pump Building (including heat for this bld), 2) the Snowmelt Building (with the exception of piping systems that are required on the snowmelt system side of the main snowmelt heat exchanger), 3) the Recreation Center (to connect the heat loop to the pool heat exchangers and to mechanically tie the pool heat exchangers into the pool heating system), and 4) Heat Pump Bld to /from the RWBPS. • Provide a stub out within the Heat Pump Building on the loop to the RWBPS to permit future connections and heat utilization of the heat loop by the ERWSD in the WWTF. Assumptions in the mechanical design are as follows: • Gravity flow of wastewater from the effluent line to the building sump pump is permissible. • Natural gas is available at the location of the new building. Heat Recovery Design and CM Assistance Scope of Work June 2009 Exhibit A - Page 7 • The heat recovery system will provide heat to a main snowmelt heat exchanger located in the snowmelt building. Design of all mechanical systems on the snowmelt side of the main snowmelt heat exchangers will be done by others. • Design and construction of controls to provide wastewater plant space heating will be done by others. • Existing pool heating pumps have capacity and head requirements to drive pool water through the new heat exchangers and the piping associated with the new heat exchangers. No new pool heating pumps will be required. This scope of work is also based on manually control of the pool source heat between the existing pool heating boilers and the heat recovery loop. 1.4 Electrical and Controls Design The electrical and controls design includes the completion of design elements including drawings and specifications to permit the bidding and construction of the electrical and controls portions of the Avon Heat Recovery Project. A copy of all studies or other technical evaluations performed under this scope item will be provided to the Town via technical memorandums. Specifically, the following will be completed. • Coordination with the local utily `n'ill be provided for 480V, three phase service to the heat pump building. Preparation of a load list and load estimate for the utility will be completed as part of the new service application. • Design of the heat pump building MCC with integral utility service entrance and main breaker to serve 480V. • Design of the distribution transformer for 120V loads in the new heat pump building. • CDM's sub Contractor will provide lighting design and convenience receptacles for the new heat pump building. • Design of the heat pump building Master Control Panel and Programming of the PLC and Development of the HMI Screens. • Design of power feeds for electrically driven mechanical equipment located in the new heat pump building. • Design of instrumentation loops for instruments that are located in the new heat pump building. • Coordination with the local utility will be provided for 480V, three phase service to the snowmelt building. Preparation of a load list and load estimate for the utility will be completed as part of the new service application. • Design of the snowmelt building MCC with integral utility service entrance and main breaker to serve 480V. CDM will provide spare buckets in the MCC for additional electrical equipment that will be provided by the Main Street Project Designers for operation power of the equipment that the Main Street Project Designers will design. • Design of the distribution transformer for 120V loads in the new snowmelt building. • CDM's sub Contractor will provide lighting design and convenience receptacles for the new snowmelt building. • Design of the Master Control Panel for equipment and instruments on the heat recovery side of the main snowmelt heat exchanger in the snowmelt building. The Master Control Panel for all other equipment will be designed by the Main Street Project Designers. Heat Recovery Design and CM Assistance Scope of Work June 2009 Exhibit A - Page 8 • Design of power feeds for electrically driven mechanical equipment in the snowmelt building and serving the heat recovery side of the main snowmelt heat exchanger. • Design of instrumentation loops for instruments located in the snowmelt building and on the heat recovery side of the main snowmelt heat exchanger. • SCADA Architecture to support the heat recovery loop system, including control monitoring from the heat pump building and the Public Works Building. • Design of the conduit and /or fiber for control and communication between the following: • Heat Pump Building Control Panel • Snowmelt Building Control Panel • Existing recreation center pool control panel. • Snowmelt system (designed by others) Control Panel • Develop control strategies for the following systems: • The Effluent Heat Recovery System, which describes the control of the main heat recovery loop and how the overall control strategy interacts with the heat pump, the boiler package, and each of the secondary heat recovery systems (i.e., recreation center pool heating, future WWTP space heating, snowmelt heat exchanger). • The heat recovery side of the recreation center pool heat heating. • The heat recovery side of the control strategy for future WWTP space heating (provided for compatibility with future controls design of space heating system to be done by others). • The heat recovery side of the control strategy for the main snowmelt heat exchanger (provided for compatibility with future controls design of snowmelt system to be done by others). Assumptions in the electrical and controls design are as follows: • The Recreation Building pool heating control system is not presently in this scope. Interface and coordination between the Recreation Building pool heating control system and the heat recovery circulating pump and instrumentation is not presently included in this scope other than a call -to -run contact from the pool heating control system to the heat recovery circulating pump and possibly providing the primary heat recovery loop temperature signal to the pool heating control system. • The WWTP HVAC control system is not presently in this scope. Interface and coordination between the WWTP HVAC control system and the heat recovery circulating pump and instrumentation is not presently included in our scope other than to provide for future 1/0 connections (e.g., example future 1/0 include a call - to -run contact from the WWTP HVAC control system to the heat recovery circulating pump and primary loop temperature signal). • The Snow - Melting System Package is not in this scope and will be provided by others. Interface and coordination between the Snow -Melt System Package and Snow -Melt Heat Recovery Control Panel is limited to providing for future 1/0 (e.g., a call -to -run contact from the Snow -Melt System Package to control the heat recovery "hot side" circulating pump and possibly providing the primary heat recovery loop temperature signal to the Snow -Melt System Package). Heat Recovery Design and CM Assistance Scope of Work June 2009 Exhibit A - Page 9 • Provisions (electrical or control) to support future solar thermal panel arrays will be provided with the future solar thermal project. • Fire alarm system for the heat pump building will be designed by specification. • Standby power for any part of the heat recovery project is not needed. • Power and Controls for Snow -Melt System Package, which will be housed in the snowmelt building, will be provided by others. • A Microsoft Windows based HMI system will be designed and constructed. • A Microsoft Windows compatible SCADA system will be designed and constructed. 1.5 Topographic Survey CDM's subcontractor will complete the topographic survey of the area from the Avon Wastewater Treatment Plant to the Avon Recreation Center, including the area between the wastewater effluent and yard piping, the site for the new Heat Recovery Building and the site for the new Snowmelt Building. Prior to conducting the field survey, the proposed alignment will be selected by the town. There are two potential project alignments from the Waste Water Treatment Plant to the Town of Avon Recreation Center including: 1) the project alignment as depicted in Figure No. 16 of the Community Heat Recovery Project Preliminary Design and Implementation Plan dated january 14, 2009 or 2) a variation of the alignment through the soccer field and volleyball court. The general location of the alignment will be defined in the first stage of the project. The topographic survey will include: • The datum shall be NAVD 1988 and modified site plane coordinates • Topographic information along the project alignment, preliminarily assumed to be an approximately 50' wide swath. • Building corners near the alignment, as necessary for project understanding and construction. • Survey the existing utilities along the alignment including rim and invert information on existing storm and sanitary sewer and research the as -built information from Eagle River Water and Sanitation on any existing water mains along the alignment. • Survey utility locations to determine the location of shallow utilities. • Survey the locations of the geotechnical borings once they are complete. • Property lines and corners and RR Right -of -Way • Topographic information of the area east of the Avon Recreation Center, assumed to be approximately 10,000 square feet, including the eastern building corners of the Recreation Center and information on the edge of asphalt of both West Benchmark Road and the adjacent parking area. • Additional topographic information (if necessary) in the area of the proposed Heat Recovery Building near the Avon Wastewater Treatment Plan. The location is assumed to be generally along the proposed alignment, thus only a minimal amount of additional topography is anticipated. • Topography of the geotechnical boring locations. IME anticipates being notified by either CDM or the Geotechnical engineer that the borings are completed and given a general idea of the location of the borings. IME also assumes that the locations of the borings will be marked via a stake or spray paint. • The Contractor has been notified that the Town has doubt about the accuracy of the buried pipes (water, sewer) as shown in the as -built drawings for Tracts G, N and H. • Two full -size signed and stamped copies of the survey will be delivered to the Town. Heat Recovery Design and CM Assistance Scope of Work June 2009 Exhibit A - Page 10 1.6 Civil Engineerinq Schematic Design - Complete a red -line sketch of a horizontal layout of the alignment to assist in site locating the Heat Recovery Building and Snowmelt Building. For 60% Design - Plan and Profile of the alignment. Plans will be at 1 " =20' scale. Utility conflicts will be identified at this design phase. The layout of the pipe will meet railroad boring requirements with details to be completed in the 90% plan stage. Preliminary Details to understand the project intent; Preliminary Quantities as necessary for cost estimates; Preliminary Grading and Horizontal Layout of utilities around the Snowmelt Mechanical Building; Preliminary Grading and Horizontal Layout of utilities around the Heat Recovery Building; Begin coordination with the utility providers that will be affected. For 90% Design - Incorporate any red -lines to the plan and profile of the alignment. Show details as necessary to meet the Railroad boring requirements. The design will meet the Railroad Crossing boring requirements; Erosion Controls will be shown on the Plan view of the pipe alignment; Construction Details as necessary for construction including any railroad boring details; Quantities as necessary for cost estimates; Construction Specifications; Final Drainage letter for the Snowmelt Mechanical Building demonstrating that the improvements meet the current drainage design for the land (which is assumed at this time); Final Drainage letter for the Heat Recovery Building demonstrating that the improvements meet the current drainage design for the land (which is assumed at the time); Update any red -lines to the grading, drainage and utilities for the Snowmelt Mechanical Building and Heat Recovery Building; Design necessary erosion controls and complete utility profiles if necessary; Continue coordination with utility providers that will be affected. Final Civil Design - Incorporate any red -lines to the construction plans and specifications; Update final quantities as necessary; Incorporate any red -lines to the Final Construction Specifications; Finalize coordination with utility providers that will be affected. RR Permitting — Provide legal description of crossing and complete the design of the railroad crossing to assist the Town of Avon in obtaining the railroad crossing easement and permit. 1.7 Architecture Architectural services will be provided on the buildings and building- additions planned in this project. The two anticipated buildings are: Heat Recovery Building Near the Sewage Treatment plant or across the railroad tracks to be in a log vernacular to match the other building along the River. This building is to be approximately 22' -8" x 43' -0 ". It will be a single story slab on grade. Total Square Footage is to be roughly 975 SF. Snowmelt Building To the East of the Recreation Center. This building will be designed to match the existing Recreation Center. This building is to be approximately 19' -0" x 34' -0 ". It will be a single story slab on grade. Total Building Square Footage roughly 650 SF. Activities include: Assemble all project data provided by Town for base mapping of existing conditions; Perform a visual review on site to verify that the information provided is reasonably Heat Recovery Design and CM Assistance Scope of Work June 2009 Exhibit A - Page 11 accurate; Attend coordination meetings to review and confirm project requirements and scope; Based on Town input received, provide a design concept for each building including exterior elevations for Town approval; Provide Architectural Plans and Elevations, Landscape plan, colors, and application to submit design to the Town of Avon for Planning and Zoning Commission review; represent the application for public meetings; coordinate structural, and landscape technical work to support these two buildings. 1.8 Geotechnical Engineering Six borings will be conducted. One each at the Heat Recovery and Snowmelt building and 4 additional borings along the proposed trench alignment of the heat recovery mechanical pipework. Laboratory testing of samples taken from the borings will be performed to determine their engineering characteristics. The information obtained from the field and laboratory testing will be analyzed and a report prepared discussing the findings and providing recommendations for foundation design including bearing pressures, lateral earth loading, surface and subsurface drainage along with compaction of earthwork. Task 2 — Bid Assistance CDM will provide bid period assistance. Services to be provided under this include draft Invitation to Bid, responses to bidder questions and draft addenda. The Town of Avon will field bidder questions and forward written questions from bidders to CDM. CDM will provide the draft response to the Town of Avon. The Town of Avon will finalize all responses and send the responses to all potential bidders. CDM will also develop draft addenda during the bid period. The draft addenda will be provided to the Town of Avon and the Town of Avon will finalize the addenda and distribute the final addenda to potential bidders. For the purposes of budgeting, CDM assumes that there will be 20 written questions from bidders and 3 addenda. CDM will not address any bid period questions that are not provided in written form (either as a letter or in an e- mail). Task 3 — Engineering Support During Construction CDM design staff and subcontractors will remain engaged in this project through completion of construction and performance testing. CDM staff will essentially be "on- call" to conduct review of submittals, respond to requests for information (RFIs), review substitution requests, as determined by and routed from the Town of Avon. CDM will be responsive during the construction and commissioning phase; this includes providing multiple contact options to appropriate timely response (i.e. within 4 hours of the Town of Avon's calls to the CDM contacts) from competent engineering staff available that will be able to return calls from the Town during Monday- Friday 7:30am — 5:00pm. In addition to returning phone calls, CDM will be able to visit the construction site within 1 working day of discussing the issue with the Town. Submittal Review: CDM will review technical submittals provided by the Contractor or equipment suppliers as requested by the Town of Avon. The Town of Avon will transmit complete technical submittals to CDM for review. CDM will provide submittal responses, with recommendations for submittal review status. Submittal responses will be provided to the Town of Avon within 20 calendar days of receipt of the submittal documents from the Town of Avon. Heat Recovery Design and CM Assistance Scope of Work June 2009 Exhibit A - Page 12 Town of Avon will finalize all submittal responses and distribute the responses to the Contractor. CDM will maintain the submittal tracking log RFI log, including records of what has been reviewed, dates of receipt, transmittal dates, and a copy of all comments and recommended actions. Requests for Information: During the construction period, the Contractor will ask questions on details of the contract, substitutions, and alternative approaches that are best answered by the designer. The purpose of this subtask is to provide written clarifications for the Town of Avon to review and use. CDM will interpret the contract documents, review conditions claimed by the contractor to be unforeseen, and review alternative approaches presented in Requests for Information (RFIs) as requested by the Town of Avon. This scope assumes that CDM will review 25 RFIs. Maintain Electronic Document Tracking: CDM will maintain the submittal tracking log and RFI log on an electronic format which can be assessed via internet login by the general contractor, authorized subcontractors, Town staff, and ERWSD staff. This system shall , including records of what has been reviewed, dates of receipt, transmittal dates, and a copy of all comments and recommended actions. These systems shall be user friendly and sortable by section number and key word. System Startup Assistance: CDM will assist with providing technical information regarding the intended operational intent of the system during startup and be able to review results of the installation contractors testing and commissioning procedures. CDM has budgeted 40 labor hours to assist with startup activities. Task 3 Assumptions: • The Town of Avon will review all submittals prior to routing to CDM to insure their completeness. Incomplete submittals will be rejected without review. • One original complete copy of any given submittal will be routed to CDM with a transmittal cover form in,t:alized by Town of Avon and signed by the Contractor. CDM will complete the submittal response as a project memorandum. This project memorandum will be scanned into pdf format and returned to Town of Avon via e -mail. Original native files ( *.doc, *.xls, *.dwg) will be returned if specifically requested by Town of Avon. • Budget assumes a total of 20 submittals will be reviewed by CDM and that each submittal will be re- reviewed as a single re- submittal. Total hours budgeted for each submittal review, including re- submittal is 16 hours. • Budget assumes a total of 25 RFI, including requests for substitutions, responses with each RFI requiring 10 hours to complete. Task 3 Deliverables: 1. RFI documents. 2. Submittal review comments. Task 4 — Meetings Attendance CDM will participate in meetings during the design and construction of this facility. The meetings that CDM will be involved with are as follow: Heat Recovery Design and CM Assistance Scope of Work June 2009 Exhibit A - Page 13 Pre -Bid: Meeting. CDM will participate in the pre -bid meeting to assist the Town of Avon in summarizing the project to potential project bidders. CDM will have three representatives in attendance at the pre -bid meeting. For budgeting purposes, the pre -bid meeting is assume to last no longer than 2 hours. • Pre - Construction Meeting. CDM will participate in the pre- construction meeting. The pre - construction meeting will be conducted to establish communication protocols, submittal and RFI procedures, and set expectations on the quality and completeness of project submittals. CDM will have two representatives in attendance at the pre- construction meeting. The pre - construction meeting is assumed to last no longer than 2 hours. • Start Up Meeting. The startup meeting will be conducted approximately 2 weeks before the commencement of startup activities. The start-up meeting will be conducted to coordinate startup activities and resolve schedule conflicts that may exist between the Contractor, the Town, and the Eagle River Water and Sanitation District. CDM will have two project representatives in attendance for the startup meeting. The start -up meeting is assumed to last no more than 2 hours. Task 4 Assumptions: • No overnight stays will be required by CDM personnel from the Denver office in order to participate in project meetings. • Meeting minutes will be kept and distributed by the Town of Avon. • CDM will provide comments to all meeting minutes within 3 calendar days of receipt from the Town of Avon. • All meetings will be led by Town of Avon staff. CDM will assist the Town of Avon in preparations for meetings. For budget purposes, 8 hours preparation time for each meeting will be provided by CDM. Task 4 Deliverables: 1. Comments on meeting agenda. 2. Comments to draft meeting minutes. Task 5 — System Performance Analysis One year after substantial completion, CDM will commence working on a Systems Performance Analysis Report. The Systems Performance Analysis Report will summarize the energy input into the system by the supplemental boiler, heat pump electrical demand, parasitic electrical demand, and the wastewater effluent and also the effluent cooling provided by the heat pump. In addition, CDM will determine the cost of heat from each source as well as the overall cost of heat for the system. The report will also track the heat usage by destination, including heat used for WWTP space heating, recreation center pool usage, the Town of Avon snowmelt systems, and heat losses from the system. The report will present the analysis on a calendar month basis. If necessary, CDM will modify the PLC and SCADA systems during the first two months of operation to facilitate the data that is required to generate the report. The report shall provide Heat Recovery Design and CM Assistance Scope of Work June 2009 Exhibit A - Page 14 recommendations for future operations to improve efficiency and reduce future energy costs. In addition, CDM will develop a power point summary that can be used to present the report conclusions in subsequent meetings. Assumptions: • Data for the report will be provided by the Town of Avon to CDM. • Data needs that are not being provided from the Systems SCADA system and are required by the Town of Avon shall be identified by the Town of Avon and a request to CDM shall be submitted to modify the SCADA system outputs within 3 weeks after substantial completion. • The Town of Avon will provide on a monthly basis a daily summary of the Heat Recovery System operational data. Energy costs for the Heat Recovery System will be based on a monthly average cost. ■ The budget for SCADA and PLC modifications required to establish for additional data acquisition is based on 80 hours. No additional instrumentation will be required to provide the data needs. ■ The Consultant's level of effort on this Task 5 work will be adjusted in accordance with the remaining available budget after work on Tasks 1 through 4 are complete. Deliverables: • CDM will provide a summary table of the data acquisition needs to complete the report. • Draft Systems Performance Analysis Report. • Final Systems Performance Analysis Report. • Power Point Presentation with audio to summarize the findings of the Systems Performance Analysis Report. Schedule On or Before Date Milestone 5/26/2009 Avon Executes EIAF /DOLA Contract Avon & District Execute intergovernmental 5/26/2009 Agreement 6/23/2009 Avon Executes Design Contract 12/21/2009 Design Complete 12/28/2009 Bid Advertisement 1/28/2010 Open Bids 2/11/2010 Award Construction Contract 3/15/2010 Initiate Construction 10/15/2010 Beneficial Occupancy (commissioning begins) 12/31/2010 Substantial Completion of Construction 4/15/2011 System Commissioning Period Ends Exclusions and Additional Services Following are services that are not included within this Scope of Services. CDM is available to provide these services in the event that they become needed by written amendment or other written authorization: • Redesign after 60% CD's • Any design, engineering or plans not specifically described above • Studies, reports or permitting of any kind other than specifically mentioned above • Fees and assessments associated with permitting the project Heat Recovery Design and CM Assistance Scope of Work June 2009 Exhibit A - Page 15 ■ Overall Drainage report or drainage improvements (a drainage letter is included for both the Snowmelt Mechanical Building and the Heat Recovery Building). ■ Any work not specifically described above Heat Recovery Design and CM Assistance Scope of Work June 2009 Exhibit A - Page 16 a Overall Drainage report or drainage improvements (a drainage letter is included for both the Snowmelt Mechanical Building and the Heat Recovery Building). ■ Any work not specifically described above EXHIBIT B COMPENSATION Cost Budget Summary Task Description Budget 1 Design of construction contract documents $495,000 2 Bid Assistance $31,500 3 Engineering Support During Construction $81,500 4 Meetings $22,000 5 System Performance Analysis $36,000 Fixed Fee (profit) $74,000 Subtotal $740,000 CDM In -kind services donation (6.75 %) ($50,000) Net Contract Total $690,000 In -kind Services Donation The Contractor agrees to donate in -kind services valued at $50,000 to this project. This equates to approximately 6.75% of the estimated subtotal professional services cost as shown above. In his invoice, the Contractor will show the actual total costs including overhead and fee, and then show a reduction of 6.75% in each invoice with the resulting total net amount due clearly identified. it is the Contactor responsibility to track in -kind services donation and to notify the Town if /when the value of said in -kind donation reaches or exceeds $50,000. Project Billings All tasks will be billed to the Town of Avon at cost plus a pro -rated portion of the total fixed profit which is included in the summary budget for line items above. Invoices will pro -rate the fee over the course of the work based on progress to date using an invoice format and profit calculation method that is acceptable to both the Town and CDM. In the event that scope is increased, budgets and fixed profit will be increased accordingly by amendment. The numbers indicated are round figures based on detailed estimates for the work to be provided. The project budget will be managed at the task and project level. CDM labor costs will be invoiced based on salary costs for professionals working on the project times the annual audited breakeven multiplier (see tables herein for example list of project staff and current rates). The current breakeven multiplier is 2.82. Escalation for hourly rates is not included. At the option of the Town of Avon, any expenses in excess of $500.00 will require pre approval by Town of Avon Staff. The Heat Recovery Design and CM Assistance Scope of Work June 2009 Exhibit A - Page 16 project duration is anticipated to be about twenty -three months from July 2009 through May 2011 such that costs will be billed monthly as incurred. Changed Conditions In the event that the Contractor and /or it's subcontractors encounter circumstances which it believes warrants a change in the price, quality, quantity or method of performing work, it shall notify the Town's project manager of this circumstance in writing. No change in work shall be undertaken until authorized in writing by the Town. Either party shall be entitled to an equitable adjustment in the contract price for changed work. It shall be the prime Contractor's sole responsibility to notify the project manager in advance, in writing of any work that it considers to be changed or extra. Failure to do so, and to provide and to receive approval before processing, shall waive any claim for payment. CDM Direct Labor Raw Rate by EmvlovW, ` Employees Description Raw Rate Markup (2.82) Armstrong, R Principal in Charge $ 79.63 $224.56 Parry, D. Technical Advisor $ 96.84 $273.09 Vandenburgh, S. Project Manager $ 48.74 $137.45 Rynders, T. Project Engineer $ 33.82 $ 95.37 Warriner, T. Technical Review $ 68.23 $192.41 Luersen, M. Sr. Elec. Engineer $ 52.93 $149.26 Liskova, P. Project Assistant $ 23.49 $ 66.24 Moini, M. Contract Administrator $ 32.55 $ 91.79 O'Donnell, W Technical Review $ 68.30 $192.61 McKee, B Sr. Structural Engineer $ 45.56 $128.48 Borsi, C Contract Administrator $ 41.48 $116.97 Primo, A Project Engineer $ 37.60 $106.03 Reed, P Sr. Scientist $ 36.17 $102.00 Sautter, N Project Structural Engineer $ 29.40 $ 82.91 Simpson, K Designer $ 25.53 $ 71.99 Hartz, J Administration $ 25.49 $ 71.88 Malone, W Administration $ 19.75 $ 55.70 Barnes, M Administration $ 18.63 $ 52.54 Manweiler, B Administration $ 18.44 $ 52.00 Joos, M Administration $ 17.00 $ 47.94 Smith, S Clerical $ 16.50 $ 46.53 *CDM rates are to be invoiced based on the raw labor rate of the individual pe7fornning the work times the breakeven multiplier of 2.82. k* Billing Rates are subject to annual increase as appropriate to remain market- competitive. Heat Recovery Design and CM Assistance Compensation June 2009 Exhibit B - Page 2 Inter Mountain Engineering Billing Rates' ** Principal Engineer $140.00/hr Project Manager $120.00/hr Senior Engineer $105.00/hr Project Engineer $95.00/hr Design Engineer $85.00/hr Field Engineer $75.00 /hr Surveyor $105.00 /hr Survey Crew without GPS $135.00 /hr Survey Crew (2 -man) with GPS $155.00/hr Survey Crew (1 -man) with GPS $130.00 /hr Senior Technician $85.00 /hr Technician $ 75.00/hr Technical Typist $40.00/hr Victor Mark Donaldson Billing Rates * ' ** Principal $180.00/hr Project Manager $1157.00/1-Ir Project Architect $115.00 /hr Project Coordinator $100.00 /hr Production Coordinator $ 90.00/hr CADD Technician/Designer $ 80.00 /hr Graphics /3D Modeling $ 80.00 /hr Administrative $ 70.00/hr * Billing rates for Intermountain Engineering, Victor Mai* Donaldson, and other sub Contractors are included here for information only. Costs incurred by sub Contractors are invoiced through CDM as an outside direct cost to the project. ** Billing Rates are subject to annual increase as appropriate to remain market- competitive. Heat Recovery Design and CM Assistance Compensation June 2009 Exhibit B - Page 3