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APACHE JUNCTION CITY COUNCIL WORK SESSION
CITY COUNCIL CHAMBERS
300 EAST SUPERSTITION BOULEVARD
APACHE JUNCTION,ARIZONA 85219
Monday, December 5, 2011
7:00 PM
AGENDA
1• CALL TO ORDER.
2. ROLL CALL.
3 PRESENTATION BY AND DISCUSSION WITH LOU MIRANDA, PINAL COUNTY EMERGENCY MANAGEMENT OFFICER, ON
THE FIRST OF TWO SESSIONS ON EMERGENCY PREPAREDNESS.
Lou Miranda, Pinal County Emergency Management Officer,will conduct the second of two emergency preparedness presentations,Incident
Command Systems for Elected Officials (ICS-402) The first presentation was completed on November 14,2011
4. PRESENTATION AND DISCUSSION ON PUBLIC ART FOR THE MEDIAN ENHANCEMENT PROJECT.
The Downtown Redevelopment and Implementation Strategy(DRIS)adopted by the city council recommends promoting public art and local
artists as a unique feature of public and private downtown development and for creating a unique niche in the downtown(Goal 4 6) To
address the opportunity for public art on the newly improved median along Old West Highway between Idaho Road and North Apache Trail,
staff coordinated with the Superstition Area Cultural Alliance(SACA)to invite local artists to submit concepts. A small committee was formed
to address the task at hand(with representatives from SACA,the City,the Apache Junction Unified School District,the Chamber,and a local
artist)and make a recommendation to the council on the concepts submitted The committee is prepared to share their recommendation and
provide council an opportunity to speak with the artist selected
as.r,5 PRESENTATION AND DISCUSSION ON ENTERING INTO A CONTRACT WITH SIEMENS INDUSTRIES INC THROUGH
STATE CONTRACT#EPS080079-7 FOR THE IMPLEMENTATION OF ENERGY CONSERVATION MEASURES FOR SELECT
MUNICIPAL BUILDINGS.
Presentation and discussion on consideration to authorize the mayor to enter into two energy saving contracts and one financing agreement
with Siemens Industries. Staff respectfully request council to consider appropriating$170,000 00 in capital replacement funds through general
fund,$130,000 00 in Energy Efficiency and Conservation Block Grant(EECBG)grant funds,and$442,707.00 from financing lender Siemens
Financial The total amount of contracts for the nine energy conservation projects would be$742,707.00. Services for such work would be
through Siemens Industries Inc.via State Contract#EPS080079-7
6. PRESENTATION AND DISCUSSION OF PROFESSIONAL SERVICES AGREEMENT FOR VETERINARY SERVICES.
The Animal Control Division entered a contract for veterinary services with Dr Julia Neufeld on October 1,2004 The original agreement
expired on September 30,2010. Animal Control desires now to amend the original agreement by extending the agreement term retroactively
from October 1,2010 through October 31, 2015 in an amount not to exceed$40,000 00 annually
7 PRESENTATION AND DISCUSSION OF MOTOROLA COMMUNICATIONS SYSTEM LEASE AGREEMENT.
Staff respectfully requests council approval to enter into a lease with Motorola in order to replace the existing radio consoles within the Apache
Junction Police Department's Communications Center This lease has a term of five years of which the amount will not exceed$70,312.00.
The first payment of$15,541.94 is due one year after contract execution
8. DISCUSSION ON 2011 CHANGES TO POLITICAL SIGN LAWS.
The council has requested an update on the changes to political sign laws adopted by the legislature under House Bill 2500
9 ADJOURNMENT.
9 ADJOURNMENT. "� .•.
Copies of this agenda and additional information regarding any of the items listed above may be obtained from
the City Clerk's office
300 East Superstition Boulevard,Apache Junction,AZ
Monday through Friday, 8.00 a m to 5 00 p m,excluding holidays
If any person with a disability needs any type of accommodation,please notify the Human Resources Office,at
(480)474-2617 or(480) 983-0095(TDD)at least 72 hours prior to the scheduled time.
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Print
TO. City Manager's Office
FROM: Pat Brenner, Community Relations Manager
DATE: December 5, 2011
Agenda Type : Work Session Agenda
Council Priority Focus Area: Public Safety
TITLE OF AGENDA ITEM:
PRESENTATION BY AND DISCUSSION WITH LOU MIRANDA, PINAL COUNTY EMERGENCY MANAGEMENT OFFICER,
ON THE FIRST OF TWO SESSIONS ON EMERGENCY PREPAREDNESS.
ACTION REQUESTED:
Presentation and Discussion
DISCUSSION/ BACKGROUND INFORMATION:
Lou Miranda, Pinal County Emergency Management Officer, will conduct the second of two emergency preparedness
presentations; Incident Command Systems for Elected Officials (ICS-402). The first presentation was completed
on November 14, 2011.
FISCAL IMPACT:
OPTIONS/ALTERNATIVES:
RECOMMENDATION:
ATTACHMENTS:
Click to download
No Attachments Available
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'Po- City of Apache Junction.
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Hotite of the SuperOtian .11ountams
Print
TO: City Manager's Office
FROM: Janine Solley, Business Advocate
DATE: December 5, 2011
Agenda Type : Work Session Agenda
Council Priority Focus Area:
TITLE OF AGENDA ITEM:
PRESENTATION AND DISCUSSION ON PUBLIC ART FOR THE MEDIAN ENHANCEMENT PROJECT
ACTION REQUESTED:
Presentation and Discussion
DISCUSSION / BACKGROUND INFORMATION:
The Downtown Redevelopment and Implementation Strategy (DRIS) adopted by the city council recommends promoting
public art and local artists as a unique feature of public and private downtown development and for creating a unique niche in
the downtown (Goal 4 6) To address the opportunity for public art on the newly improved median along Old West Highway
between Idaho Road and North Apache Trail, staff coordinated with the Superstition Area Cultural Alliance (SACA) to invite
local artists to submit concepts A small committee was formed to address the task at hand (with representatives from SACA,
the City, the Apache Junction Unified School District, the Chamber, and a local artist) and make a recommendation to the
council on the concepts submitted The committee is prepared to share their recommendation and provide council an
opportunity to speak with the artist selected.
FISCAL IMPACT:
)PTIONS/ALTERNATIVES:
RECOMMENDATION:
Presentation and discussion
ATTACHMENTS:
Click to download
❑ Staff Memo
LI SAGA Call to the Artists Packet
L] Artist Concept Submittal
ATT
DATE November 14, 2011
MEMORANDUM TO: The Honorable Mayor and City Councilmembers
MEMORANDUM THROUGH. George Hoffman, City Manager
Steve Filipowicz, Economic Development Director
MEMORANDUM FROM. Janine Solley, Business Advocate
SUBJECT: Public Art— Median Project
In March 2011 after the completion of the median landscape improvements, staff asked the
City Council about their desire to advance the Downtown Redevelopment and
Implementation Strategy (DRIB) recommendation to engage the focal arts community on
public art projects, and if we should consider the median pedestals on Old West Highway as
an opportunity to explore. (Recall that with the original landscaping design, some form of
iron art pieces were considered to be a likely component) At this meeting, Council
embraced a direction that we involve Superstition Area Cultural Alliance (SACA), invite the
art community to get creative with concepts (insomuch as they were willing with no budget
yet identified), and consider not just iron art, but be open to other creative and cost-effective
solutions that the art community might come up with.
From that, staff engaged SACA and worked on a "Call to the Artists" that is standard for
most community's public art process Essentially, artists are invited to submit concepts that
are aligned with the community's vision or particular project (typically, however, with a
budget that has been identified). An art committee does an initial screening of all proposals
then has selected artists prepare a maquette and present their plan to the art committee
This provides the committee an opportunity to ask questions of the artist and determine
which of the concept(s) are most appropriate to be considered for recommendation to the
final decision makers
A committee for this Old West Highway median project was pulled together that has
representation from SACA, the City of Apache Junction, the Apache Junction Chamber of
Commerce, Apache Junction Unified School District (AJUSD), and a long-time, local artist.
The notion is that this committee would be relied upon to make a solid recommendation on
an art concept for the City Council to consider
The committee has completed the process and is prepared to make a recommendation to
the City Council on what they believe to be a viable art concept that will be a quality, artful
addition to the downtown The committee would also like to introduce the artist and his
concept.
The intent of this Work Session item is to update the City Council on this Public Art item
We look forward to questions and discussion from the Council. Should any action be
desired, staff would be happy to bring this item back to the City Council as a Direction to
Staff.
As it was when we began this process, there is no funding mechanism for public art.
However, we did secure a partially funded Fort McDowell Yavapai Nation grant (requested
$10,000, received $2,000 in August 2011). No additional funding has been secured and no
other current funding streams are actively being pursued at this time SACA has suggested
they can assist by applying for various grant opportunities
With a lack of a formal city-sanctioned Arts Council, this process was used to address the
need for this particular project The Council may wish to consider a longer-term plan to
appoint an Arts Commission that would provide a more structured and predictable process
as future projects will need to be considered
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SA r T . p. { ! A i ".
Call to Artists
The Superstition Area Cultural Alliance and the City of Apache Junction are seeking interested
area artists for the median project located on Old West Highway between Phelps Drive and
Idaho Road Three site pads have been placed in the median for sculptures.
We are seeking artists to design, fabricate and help install a work or works of your creation to
become a part of the permanent collection of the City of Apache Junction Works can be of any
material but should be durable, permanent and safe.
The City would like the theme to reflect the vision articulated in the Downtown Redevelopment
and Implementation Strategy(see www.downtownaj.com for the complete study). Themes could
be historical, cultural, realist, environmental or abstract and will be an artful addition to the
significant landscaping and lighting enhancements currently being added.
The location of the site pads in the median will call for unique design considerations The area is
not intended for pedestrian traffic and in fact is located between six lanes of vehicular traffic
with a posted speed limit of 40mph The style of the art should be designed for"drive-by"
viewing as opposed to interactive art. Submissions for two or three dimensional art are desired
The existing site pads where the art would be installed are 30' in diameter presently covered with
decomposed granite. The site pads also include lighting sources intended to light the art features
on either side of the piece. Artists will need to provide a plan for the design of a base pedestal to
adequately accommodate the piece
Future plans for similar median enhancements are called for along the length of Apache Trail.
This could potentially result in over a dozen additional art pieces being added over the next 10—
15 years. Artists are asked to consider a concept that would support future pieces being added
that could be similar in theme and provide a uniformed look In essence,this initial project will
set the tone for future public art projects within the entire length of the median on Apache Trail
We are seeking artists to submit a brief summary of your design idea which should include the
concept, materials to be used, and how it can be safely transported and installed. Attached you
can include design sketches, drawings, photographs of previously created works and anything
you can tell us of works you've created before to ensure the review panel of your reliability.
City staff has also been charged to participate in the process and provide technical assistance
Each submission will require that the artist submit a design for at least one piece of art If
chosen, the artist will be asked to submit two additional designs for the other pads Artists who
wish to include a design for three pieces of art with their initial submission may do so
Additionally, artists will be allowed to submit more than one concept if they choose to do so.
You must include your own itemized estimate which should include the cost of materials,
transportation, installation and artist fees Please remember the City of Apache Junction has a
restricted budget Keep costs down to a minimum as it will be a factor in the committee's
decision.
Adak, Selections will be carefully scrutinized for safety features including maintaining an appropriate
visual line of site for vehicular traffic movement. Additionally,the City may opt to reduce costs
by participating in elements of the fabrication, transportation, installation, etc if it is deemed
appropriate to do so.
An initial screening of all proposals will be conducted by a public arts committee. After the
initial screening, selected artists will be asked to prepare a maquette and present their plan to the
public art committee The process will consist of a 10 minute presentation of the concept and a
10 minute question and answer period. The top one(but no more than three)concepts will be
presented to the City Council for final selection. The Superstition Area Cultural Alliance will
then proceed to develop funding through the business community to help the City with this
worthy project that will highlight the contributions of art and artists as central to our community
You may email your request for an information packet to SACA president,
sharon.stinard@centralaz edu
Submissions should be sent to City of Apache Junction, Attn: Janine Solley, Business Advocate,
300 E. Superstition Blvd, Apache Junction, AZ 85119 or emailed to jsolley a ajcity.net before
3.00 p m Arizona time on Thursday, June 2, 2011
Attachments
Map of Apache Junction's core downtown area—concept overlay
Apache Junction Downtown Google map
Site Plan map
The recently adopted downtown "brand"
Suggested budget items
Draft timeline
Sample Professional Services Agreement
Apache Junction Downtown Core Map
Concept Overlay for Implementation Strategy
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Ian . SITE PLAN APACHE JUNCTION, ARIZONA
Apache Junction Downtown "Brand"
Logo & Tagline to be used in Elements with the Downtown Core
(i.e. banners, sidewalk stamp,entry signs,street signs,etc.)
IIIIWNTIIWN
Surrounded by Legends
Suggested Items to be Included in Budget Submittal
Materials and Fabrication—Attach an itemized list showing per unit and total cost estimate
Include materials, labor, subcontractors, etc
Insurance—Selected artists must provide proof of liability insurance for the full time of
fabrication to installation of one million dollars. (Explain the project to your local insurance
broker.) Usually it's not very expensive
Travel—Mileage, truck rental, etc.
Site Preparation and Installation Costs
Studio Expenses—Phone, rent supplies, etc.
Transportation—Transporting the artwork to the site, crane services, etc
Contingency—Suggested 10%of project costs
Subtotal
Artist Fee
Grand Total
Timeline
Week of April 25, 2011 —Call to Artists released by SACA
June 2, 2011 —Artist submissions due
By July 1, 2011 —Panel will make decision on short-list and artist notifications
August 2011 —Short-listed artists to make presentation to the Public Art Committee
September/October 201 1 —One to three of the top concepts taken to City Council for final
selection
Project construction timeline is dependent upon securing financing No funding has been
identified at this time
Sample Professional Services Agreement
The selected artist will be required to enter into an agreement with the City of Apache Junction
A sample of such an agreement follows
PROFESSIONAL SERVICES AGREEMENT
FOR
THIS AGREEMENT is made and entered into this day of
, 20 , by and between the CITY OF APACHE JUNCTION,ARIZONA,an
Arizona municipal corporation ("City"),and
("Consultant"), for the project entitled " ."
WHEREAS, City desires to retain a consultant to furnish
services and to make payment for the same in accordance with the terms
and conditions set forth in this Agreement,including all attachments and addenda which
are appended hereto by mutual agreement of the parties; and
WHEREAS, the open market procedures set forth in Apache Junction City
Code Section 3-7-2 have been satisfied. 4
NOW,THEREFORE, City agrees to retain and does hereby retain Consultant and
Consultant agrees to provide the services required according to the terms and conditions
and for the consideration hereinafter set forth:
1. CONSULTANT'S DUTIES: Consultant agrees to perform the following
professional services in connection with the Project:
***[NOTE. Items listed in this paragraph can be shown as
paragraphs "A, B, C, D" etc. or can be shown as "attached on
Exhibit A as Scope of Services" or listed in simple paragraph form.
This paragraph will be specifically tailored to meet the needs of
your project.]***
2. COMPENSATION: In accordance with the terms and conditions of this
Agreement, City shall compensate Consultant for its professional services as follows:
***[NOTE. The amount to be paid to the consultant can be listed in
paragraph form ("A, B, C, D") showing the total amount to be paid,
per the contract, and also any contingency payments (for mileage,
reports, etc.) and showing payments made (if over time). Also,
please list any payments to be made for hourly billing over and
above the compensation listed in this paragraph.]***
Exhausting the total amount payable for activities described in Section 2 above shall not
relieve Consultant of its obligations to perform such services. Should City request
additional services beyond those specified in Section 1, Consultant's Duties, Consultant
shall charge, and City shall pay, an hourly rate as per the Proposal.
3. TERM: This Agreement shall be effective beginning
through ,and shall remain in full force and effect for [#OF
YEARS] [OPTIONAL: and shall be automatically extended for(#of years)].
4. CONSULTANT BILLING: Consultant shall bill City on a time and expense
basis in a total amount not to exceed Section 2 above. City shall pay such billings within
thirty(30) days of the date of receipt.
5. CITY'S STANDARD OF PERFORMANCE: City shall furnish the
Consultant with all data, information and other supporting services specified in Exhibit
«A»
6 CONSULTANT'S STANDARD OF PERFORMANCE: While performing
the services, Consultant shall exercise the reasonable professional care and skill
customarily exercised by reputable members of Consultant's profession practicing in the
Phoenix Metropolitan Area,and shall use reasonable diligence and best judgment while
exercising its professional skill and expertise. Consultant shall be responsible for all errors
and omissions Consultant commits in the performance of this Agreement.
7. NOTICES: All notices to the other party required under this
Agreement shall be in writing and sent by first class certified mail, postage
prepaid, return receipt requested, addressed to the following personnel:
If to City: [Insert Name of City Representative]
[Insert Title]
City of Apache Junction
1001 North Idaho Road
Apache Junction,AZ 85219
If to Consultant: [Insert Name of Consultant]
[COMPANY NAME HERE]
[ADDRESS HERE]
[CITY STATE ZIP]
8. TERMINATION: This Agreement may be terminated by either party upon
fifteen (15) calendar days written notice. If this Agreement is terminated,Consultant shall
be paid for services performed to the date of receipt of such termination notice. In the
event of such termination, Consultant shall deliver to City all work in any state of
completion at the date of effective termination.
9. SUBCONTRACTORS: Consultant shall,within ten (10) calendar days after
the execution of this Agreement and before awarding any subcontract, furnish City with a
list of proposed subcontractors,if any,and shall not employ any that City may object to for
any reason. Consultant agrees that it is as fully responsible to City for the acts and
omissions of its subcontractors and of persons either directly or indirectly employed by
them as it is for the acts and omissions of persons directly employed by Consultant.
Nothing contained in the Agreement shall create any contractual relations between any
subcontractor and City.
10. RECORDS: Records of Consultant's labor,payroll,and other costs
pertaining to this Agreement shall be kept on a generally recognized accounting basis and
made available to City for inspection on request. Consultant shall maintain records for a
period of at least two (2)years after termination of this Agreement, and shall make such
records available during that retention period for examination or audit by City personnel
during regular business hours.
11. INSURANCE: The Consultant, at its own expense,shall purchase and
maintain the herein stipulated minimum insurance with companies duly licensed,
possessing a current A.M. Best,Inc. Rating of B++6,or approved unlicensed in the State of
Arizona with policies and forms satisfactory to City.
All insurance required herein shall be maintained in full force and effect until all
work or service required to be performed under the terms of the Agreement is
satisfactorily completed and formally accepted; failure to do so may, at the sole
discretion of City, constitute a material breach of this Agreement.
The Consultant's insurance shall be primary insurance as respects the City, and any
insurance or self-insurance maintained by City shall not contribute to it.
Any failure to comply with the claim reporting provisions of the insurance policies or any
breach of an insurance policy warranty shall not affect coverage afforded under the
insurance policies to protect City.
The insurance policies,except Workers' Compensation,shall contain a waiver of transfer
rights of recovery (subrogation) against City, its agents,officers, officials and employees for
any claims arising out of Contractor's acts, errors, mistakes, omissions,work or service.
The insurance policies may provide coverage which contains deductibles or self-insured
retentions. Such deductible and/or self-insured retentions shall not be applicable with
respect to the coverage provided to City under such policies. The Consultant shall be solely
responsible for the deductible and/or self retention and City,at its option, may require
Consultant to secure payment of such deductibles or self-insured retentions by a Surety
Bond or an irrevocable and unconditional letter of credit.
City reserves the right to request and to receive,within ten (10)working days,certified
copies of any or all of the herein required insurance policies and/or endorsements. City
shall not be obligated, however,to review same or to advise Consultant of any deficiencies
in such policies and endorsements,and such receipt shall not relieve Consultant from, or be
deemed a waiver of, City's right to insist on strict fulfillment of Consultant's obligations
under this Agreement.
The insurance policies,except Workers' Compensation and Professional Liability, required
by this Agreement,shall name City, its agents, officers, officials and employees as
Additional Insureds.
REQUIRED COVERAGE
Commercial General Liability
Consultant shall maintain Commercial General Liability insurance with a limit of not less
than $1,000,000 for each occurrence with a $2,000,000 Products/Completed Operations
Aggregate and a$2,000,000 General Aggregate limit. The policy shall include coverage for
bodily injury, broad form property damage, personal injury, products and completed
operations and blanket contractual coverage including, but not limited to, the liability
assumed under the indemnification provisions of this Agreement,which coverage will be at
least as broad as that on Insurance Service Office,Inc. Policy Form No. CG 00011093,or
any replacements thereof.
Such policy shall contain a severability of interest provision, and shall not contain a sunset
provision or commutation clause, nor any provision which would serve to limit third party
action over claims.
The Commercial General Liability additional insured endorsement shall be at least as
broad as the Insurance Service Office,Inc.'s Additional Insured,Form B, CG 20101185,
and shall include coverage for Consultant's operations and products and completed
operations.
If required by this Agreement, if Consultant sublets any part of the work,services or
operations, Consultant shall purchase and maintain, at all times during prosecution of the
work,services or operations under this Agreement,an Owner and Contractor's Protective
Liability insurance policy for bodily injury and property damage, including death,which
may arise in the prosecution of the Consultant's work, service or operations under this
Agreement. Coverage shall be on an occurrence basis with a limit not less than $1,000,000
per occurrence, and the policy shall be issued by the same insurance company that issues
the Consultant's Commercial General Liability insurance.
Automobile Liability
Consultant shall maintain Commercial/Business Automobile Liability insurance with a
combined single limit for bodily injury and property damage of not less than $1,000,000
each occurrence with respect to Consultant's owned, hired, and non-owned vehicles
assigned to or used in performance of Consultant's work. Coverage will be at least as
broad as coverage code 1, "any auto", (Insurance Service Office,Inc. Policy Form CA
00011293, or any replacements thereof). Such insurance shall include coverage for loading
and off loading hazards. If hazardous substances, materials or wastes are to be
transported,MCS 90 endorsement shall be included and $5,000,000 per accident limits for
bodily injury and property damage shall apply.
Workers' Compensation
Consultant shall carry Workers' Compensation insurance to cover obligations imposed by
federal and state statutes having jurisdiction of Consultant's employees engaged in the
performance of the work or services; and,Employer's Liability insurance of not less than
$100,000 for each accident,$100,000 disease for each employee,and $500,000 disease policy
limit.
AM II,
By execution of this Agreement, Consultant certifies as follows:
"I am aware and understand the provisions of A R S. 23-900 et seq.
which requires every employer to be insured against liability for
workers' compensation or to undertake self-insurance in
accordance with the provisions of this chapter, and I will comply
with such provisions before commencing the performance of the
.► work of this Agreement."
If Consultant has no employees for whom workers' compensation insurance is required,
Consultant shall submit a declaration or affidavit to City so stating and covenanting to
obtain such insurance if and when Consultant employs any employees subject to coverage.
In case any work is subcontracted, Consultant will require subconsultant to provide
Workers' Compensation and Employer's Liability insurance to at least the same extent as
required of Consultant.
Professional Liability
Consultant retained by City to provide the work or service required by this Agreement will
maintain Professional Liability insurance covering acts, errors, mistakes and omissions
arising out of the work or services performed by Consultant,or any person employed by
Consultant,with a limit of not less than $1,000,000 each claim.
Certificates of Insurance
Prior to commencing work or services under this Agreement,Consultant shall furnish City
with Certificates of Insurance,or formal endorsements as required by the Agreement,
issued by Consultant's msurer(s), as evidence that policies providing the required
coverages, conditions and limits required by this Agreement are in full force and effect.
The form of the certificates of insurance and endorsements shall be subject to the approval
of the Apache Junction City Attorney's Office,shall comply with the terms of this
Agreement, and shall be issued and delivered to:
City Attorney
City of Apache Junction
1001 North Idaho Road
Apache Junction,AZ 85219
In the event any insurance policies required by this Agreement are written on a "claims
made" basis, coverage shall extend for two (2)years past completion and acceptance of the
Consultant's work or services and as evidenced by annual Certificates of Insurance.
If a policy does expire during the life of the Agreement, a renewal certificate must be sent
to City fifteen (15) days prior to the expiration date.
All Certificates of Insurance shall be identified with bid serial number and title. A$25.00
administrative fee will be assessed for all certificates received without the appropriate bid
serial number and title.
Policies or certificates and completed forms of City's Additional Insured Endorsement (or
a substantially equivalent insurance company form acceptable to the City Attorney)
evidencing the coverage required by this section shall be filed with the City and shall
include the City as an additional insured. The policy or policies shall be in the usual form
of a public liability insurance, but shall also include the following provision: .�
"Solely as respects work done by or on behalf of the named insured
for the City of Apache Junction, it is agreed that the City of Apache
Junction and its officers and employees are added as additional
insureds under this policy "
Cancellation and Expiration Notice
Insurance required herein shall not expire, be canceled, or materially changed
without thirty (30) days prior written notice to City.
12. RIGHT OF CITY TO CONTRACT WITH OTHERS: Nothing in this
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this particular consultant.
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following: strikes, lockouts, embargoes, failure of carriers,inability to obtain
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control of the other or the other's employees and agents.
14. INDEMNIFICATION: To the fullest extent permitted by law, Consultant
shall defend, indemnify and hold harmless City, its agents, officers,officials and employees
from and against all tortious claims,damages, losses and expenses (including but not
limited to attorney fees, court costs, and the cost of appellate proceedings), relating to,
arising out of,or alleged to have resulted from the acts,errors, mistakes, omissions,work
or services of Consultant, its agents, employees, or any tier of Consultant's subconsultants
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services in the performance of this Agreement including any employee of the Consultant,
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The amount and type of insurance coverage requirements set forth herein will in
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conditions of this Agreement or to exercise any right or privilege contained herein shall not
be considered as thereafter waiving such terms, conditions, rights or privileges, and they
shall remain in full force and effect.
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Consultant's performance of the services retain Consultant's status as independent
contractor. Consultant's employees shall under no circumstances be considered or held to
be employees or agents of City,and City shall have no obligation to pay or withhold state
or federal taxes or provide workers' compensation or unemployment insurance for or on
behalf of them or Consultant
17. GOVERNING LAW AND VENUE: The terms and conditions of this
Agreement shall be governed by and interpreted in accordance with the laws of the State of
Arizona. Any action at law or in equity brought by either party for the purpose of
enforcing a right or rights provided for in this Agreement,shall be tried in a court of
competent jurisdiction in Pinal County,State of Arizona. The parties hereby waive all
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In the event either party shall bring suit to enforce any term of this Agreement or to
recover any damages for and on account of the breach of any term or condition in this
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attorneys' fees, necessary witness fees and court costs to be determined by the court in such
action.
18. OWNERSHIP OF RECORDS AND REPORTS: All of the files, reports,
documents, information as well as all data prepared in Autocad or other electronic drawing
or text files or assembled in any other form by Consultant under this Agreement,shall be
and shall remain the property of City and shall be forwarded to City at any time City
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19 LICENSE: Consultant represents and warrants that any license necessary to
perform the work under this Agreement is current and valid. Consultant understands that
the activity described herein constitutes "doing business in the City of Apache Junction"
and Consultant agrees to obtain a business tax license pursuant to Article 8-5 of the Apache
Junction City Code and keep such license current during the term of this Agreement. Any
activity by subconsultants within the corporate city limits,will invoke the same business
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21. ENTIRE AGREEMENT: This Agreement and any attachments represent
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and signed amendments shall automatically become part of the Supporting Documents,
and shall supersede any inconsistent provision therein; provided, however,that any
apparent inconsistency shall be resolved,if possible, by construing the provisions as
mutually complementary and supplementary.
22. SEVERABILITY: If any part, term or provision of this Agreement shall be
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and provisions hereof shall not be affected.
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cancellation of contracts due to conflicts of interest shall apply to this contract.
IN WITNESS WHEREOF,the parties have caused this Agreement to be signed by
their duly authorized representatives as of the day and year first above written.
CONSULTANT:
By:
Title:
CITY OF APACHE JUNCTION,
an Arizona municipal corporation
JOHN INSALACO
Mayor
ATTEST:
KATHLEEN CONNELLY
City Clerk
APPROVED AS TO FORM:
RICHARD J. STERN
City Attorney
JOEL COPLIN
www joelcoplinfineart.com
9919 East Main Street Studio A
Mesa,Arizona 85207
Phone 602-576-0338
Joel copiin 3email.coin
Median Project Proposal
I have been a professional artist living in the Far East Valley near Apache Junction for 26
years. When asked where I live I say Apache Junction although technically our mailing
address is Mesa. I have successfully completed several public art projects in the past few
years, one for the City of Phoenix and two for the city of Scottsdale and one artist exchange
project for the City of Mesa. I am very familiar with the process of public art and have been
able to deal both with city administrations and with the general public. I own and operate a
business here in Mesa but that will in no way impede my work on this project as my
business deals with the making of art and the supplies needed for it.
I propose for the median project three sculptures that will depict and honor the three main
elements that contributed to the founding and building of our city. I believe the three main
elements are;the Apaches which inhabited the area long before us,a prospector with his
burro which represents the attraction of gold and honors the lost Dutchman and a cowboy
herding cattle, representing the big cattle ranches which once populated the area. First are
the indigenous people,where we get our name,the Apaches.
I would like to create, out of translucent fiberglass and urethane resin, (both are very hardy
and indestructible).three, eight foot tall,six foot wide at the top and four foot wide at the
bottom,monoliths The first of these would have the image of an Apache Crown Dancer cut
out of the middle so one would see the image of a the dancer but you'd see the sky and the
mountain in the shape of the dancer,and similarly the other two would depict the prospector
and the rancher. This gives a contemporary conceptual edge to otherwise common images,
and will give the median an avant guard feel. All three monoliths would have the
Superstition Mountain shape at the top like the City's logo.
The Indians no longer inhabit the area,prospecting is still done but more as a hobby and the
big ranches are all long gone so it seems fitting to have their images made of air, if you will.
They no longer exist but they're still a big part of our western heritage.
During the day the translucent material will allow light to come through the space casting a
shadow of the image on the ground and allowing the viewer to see the sky,mountains and
trees in the shape of the figures. At night it will light up beautifully as the fiberglass will
transmit light and seem to glow while the images will appear dark
The sculptures will have a fiberglass plinth which would be bolted into a cement foundation.
As stated before they will be next to indestructible and inured to weather, light and durable.
They will be made locally and transported easily
I think they would be a beautiful addition to our town and hope you do as well. Attached are
my curriculum vitae, some images of my public art experiences and pictures of the maquette
sketches to give you a visual idea of my concept and a budget proposal.
JOEL COPLIN
www.joelcoplinfineart coin
9919 East Main Street Studio A
Mesa,Arizona 85207
Phone 602-576-0338
joel.coplin u,gmail.com
These images are of two of the three maquettes made out of foam core, representing the
planned design, which will be created out of copper colored,translucent resin, 8 feet tall, 6
feet wide at the top and 4 feet wide at the bottom Each sculpture will glow from the
lighting embedded underneath the monolith. .-.
/
Indian Crown Dancer(image cut out of center)
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Prospector and Donkey(image cut out of center)
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JOEL COPLIN
www�oelcoplinfineart.com
9919 East Main Street Studio A
Mesa,Arizona 85207
Phone 602-576-0338
Joel coplinl iunail corn
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Here is an example of the translucent resin material to be used for the proposed
median project
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JOEL COPLIN
... .. . . . . .. ... . . .
wwwjoelcoplinfineart corn
9919 East Main Street Studio A
Mesa,Arizona 85207
Phone 602-576-0338
Joel,cophn a)email com
Budget approximation for A.J. Median project
Choice #1
These costs are for three sculptures. If only one is chosen the costs are 1/3
The material cost for an all fiberglass translucent sculpture made at American
Fiberglass of Phoenix which is a bonded and insured company and has done
numerous projects across the country including the new atrium at the Science
Museum is $3000.00 each . $9000.00
Transportation to the site $600 00
Site preparation, (cement footings, attachment rods) 3@800 $2400.00
Artist fee. . .. .. ... .. $3000 00
Grand total . $15,000 00
Choice #2
The fiberglass matenal would be good but I would prefer a solid pour of
polyurethane resin which would be spectacular however would incur more costs
The material cost for three solid resin sculptures made at The Bollinger Atelier in
Tempe which is also bonded and insured and known nation wide comes in at
3@$7500 $22.500.00
Transportation to the site . $500.00
Site preparation(Cement footings and rods) $2400.00
Artist fee . . .. . $4600 00
Grand total. 3@$10.000 $30 000 00
Liability insurance is provided by American fiberglass or Bollinger Atelier and my
business,East Side Art which has a$3.000.000 policy.
JOEL COPLIN
wwwjoelcoplinfineart com
9919 East Main Street Studio A
Mesa,Arizona 85207
Phone 602-576-0338
Joel coplin( mail com
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Livery Stable a 12'x 25'mural,installed in the Noriega Livery Stable Museum in 2006, Scottsdale,AZ
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Percent for Art program by the Phoenix Art Commission.
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The Stable,2006 0
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Located at the Oldtown Livery,Northwest corner of
Second Street and Brown in downtown Scottsdale 0.
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Inside the liveryunique /�
you will find a and colorful mural o
by Arizona artist Joel Coplin The scene shows horses H
being fed in their stalls Each horse was inspired by indi-
vidual animals the artist worked with during his time as
a carriage driver in New York City Coplin has created a •
contemporary but timeless image painted with the same ,N
techniques used by the Old Mastersco
"I want to honor the work horses-the horses with no 7
papers or trophies The ones who go out,rain or shine and
do heavy work with a good heart." Joel Coplin o
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The Ocean Inside Him
Rick Noguchi holds a Bachelor's degree in z`o
After Kenji Takezo fell from a wave, English from California State University(199o) x
The turbulence of whitewash confused and a Master's degree in creative writing from c o
Arizona State University(1993).His first book c =
His sense of direction. ofpoems The Ocean Inside s o
s de ofKenji Takezo won �
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He breathed in the Associated Writing Program's 1995 Award o
When he should have Series and was published by the University
of Pittsburgh Press Noguchi's chapbook,The n
Held tight.ay accident,he swallowed wave He Caught,won the 1994 Pearl Editions
The Pacific.The water poured down his throat, Prize Currently, rizona i,who is the Resource
Idle cascade he could not see. Director forin theg Arizona HumanitiesBarbed Councl,
is develop Transforming Wire a
hilt in his stomach project which examines the exclusion,forced
heavy life of the ocean. removal,and mass detainment of Japanese
Americans during World War II
)
It itikkAtt funny,but he giggled i4-
f -shoot of fish tickled his ri . '4 Joel Coplin has lived and worked in the Phoenix
He went home,the surf not rideable, area for fourteen years.His paintings deal
It was no longer there, with the connections between myth,allegory
The water weighted in his belly. and reality Locally,Coplin's work can be seen
in the collections of the Scottsdale Museum of
Contemporary Art and the Arizona State
That night,while he slept,the tide moved. University Art Museum In 1993,Coplin was
The long arms of the moon commissioned by the Phoenix Arts Commission
Reached inside him pulling the Pacific free. to create a mural for the new Phoenix City Hall,
When he woke the next morning, his mural Metroasis is now permanently
installed there Coplin's artwork is included in
aye ri--
many corporate and private collections including
those of Valley National Bank and the McDonald's
Ric, Noguchi Corporation International Coplin's Kenji in
the Curl,an oil on board painting,was created
in response to Noguchi's poem
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This is one of a series of twelve bookmarks
commissioned through Artmarks.a visual
artist/poet collaboration protect Artmarks
,S was made possible with funding from
tit
t"" 4' the Scottsdale Public Art Program,City of
Scottsdale,City of Tempe Community Services,
Scottsdale Public Library Advisory Board,
and Scottsdale Cultural Council The project
is designed to celebrate visual arts
and poetry
JOEL COPLIN
BORN 1954 MINNEAPOLIS MINNESOTA
SOLO EXHIBITIONS
2006 to Current Continuing Exhibitions ESA Gallery,Mesa,Arizona
2005 LIFE DRAWING Larsen gallery,Scottsdale Arizona
2005 MARRIAGE OF IDEAS Ogilvie/Pert!Gallery,Chicago,Illinois ^`
2004 REAL AND IMAGINED The Cultural Exchange Gallery,Scottsdale Arizona
2000 DOUBLE VISION Vanier Fine Art,Scottsdale,Arizona
1998 MIXED METAPHORES Vanier Fine Art,Scottsdale,Arizona
1995 TRUTH&FANTASY Lisa Sette Gallery,Scottsdale,Arizona
1993 BACCHANALIA Scottsdale Center for the Arts,Scottsdale,AZ
1993 LI ITLE DRAMAS Lisa Sette Gallery,Scottsdale,Arizona
SELECTED GROUP EXHIBITIONS
2003 ARIZONA BIENNIAL Juned by Toby Kamps,Tucson Museum of Art
2001 ANA 30 Juned by Peter Schyldahl HoIter Museum of Art,Helena Montana
2000 A N A 29 Juried by Lucy Lippard, Holter Museum of Art, Helena Montana
1999 REALITY CHECK Traveling Exhibition,AZ Commission on the Arts 1999-2000
1997 BUILDING A COLLECTION curated by the Contemporary Forum,supporting
Phoenix Art Museum's acquisitions of 20t1,Century Art
1997 THE NARRATOR-A three man show,A P Tell Gallery,Grand Canyon
University,Phoenix,Arizona
1996 FIRE AND LIGHT Susan Cummins Gallery,Mill Valley,CA
1996 SOUTHWEST 96 Museum of Fine Arts,Santa Fe,New Mexico
1996 DIRECTORS CHOICE Scottsdale Center for the Arts,Scottsdale,AZ
1996 GENERATIONS Hammond Gallery,Lancaster,Ohio
1996 FOLLOWING THE LIGHT G C Lucas Gallery,Indianapolis,IN
1995 59111 MIDYEAR EXHIBITION Butler Institute of American Art,Youngstown,Ohio
1995 ARIZONA BIENNIAL Tucson Museum of Art,Tucson,Arizona
1994 SMALL WORKS Lisa Sette Gallery,Scottsdale,Arizona
1993 SMALL WORKS Lisa Sette Gallery,Scottsdale,Arizona
9919 EAST APACI-IE TRAIL. • MESA, ARIZONA 85207 • (W) (480) 986-5450 (II) (480) 984-5933
1
1992 ART AND LIFE Nelson Fine Art Center,Tempe,Arizona
1992 ECO-LOGIC,ARTISTS AS ENCIRONMENTAL ADVOCATES
Arizona State Capitol,Phoenix,Arizona — Invitational,Karen Churchill,Curator
1991 PAINTINGS&DRAWINGS Lisa Sette Gallery,Scottsdale,Arizona
1991 LA PHOENIQUERA XI Juned. First Place Mars Artspace,Phoenix,Arizona
1990 THE LIVING MIRAGE Invitational,Curator Shiela Kollasch,Mesa Southwest Museum
1989 CON TEMPORARY REALISM Juned Riva Yares,Tempe Art Center,Tempe,AZ
1988 THE HUMAN FORM Juned.Gallena Mesa,Mesa,Arizona
1987 IMAGES OF LIGHT Moran Gallery,Scottsdale,Arizona
1986 ART USA,Western Colorado Center for the Arts,Grand Junction,Colorado
PUBLIC ART AND MURALS
2006 THE STABLE, a 12x25 foot mural commissioned by the City of Scottsdale for the
Noriega Livery Museum,
2000 NATIONAL SLIDE REGESTRY implemented by the Phoenix Arts commission
1997 ART MARKS:A Visual Artist/Poet Collaboration
sponsored by Scottsdale Center for the Arts,the Public Art Program
for the City of Scottsdale,and the Scottsdale Cultural Council
1997 I-ISTORY OF GILBERT eleven by 70 foot mural,private commission
1996 A HISTORY OF SUPERSTITION MOUNTAIN
Artists Residency Grant through the Arizona Commission on the Arts for
Greenfield Elementary School,Gilbert,Arizona
1995 NAKED LUNCH A 6X10'mural commissioned by Keystone Corp.,Paris,France
1993 METROASIS Commissioned by the City of Phoenix,a six by 24 foot mural of the
.► history of Phoenix,for Phoenix City Hall—artist chosen by contest
AWARDS
1996 Artist Incentive Grant,International Friends of Transforrnaticve Art
1995 CON TEMPORARY FORUM ARTISTS MATERIALS GRANT by
The Contemporary Forum of the Phoenix Arts Museum
1993 PHOENIQUERA XI First Place, MARS Artspace,Phoenix,Arizona
SELECTED COLLECTIONS
TUCSON MUSEUM OF ART Tucson, Arizona
CITY OF PHOENIX Phoenix, Arizona
CITY OF GLASGOW SCOTLAND,&MESA ARIZONA Artist exchange
SCOTT'SDALE MUSEUM OF CON TEMPORARY ART Scottsdale, Arizona
ARIZONA STATE UNIVERSITY ART MUSEUM Tempe, Arizona
MCDONALD'S CORPORATION Corporate Art Collection—International
JOEL COPT IN - 9919 FAST' APACIIE TRAIL MESA, ARIZONA 85207 •
(480) 986-5450 I! MAIL JoLOW999@MSN COM
2
BANK ONE Phoenix,Arizona
HOUSTON'S RESTAURANTS Atlanta,Georgia
REVIEWS AND PUBLICATIONS
2000 Faces of Arizona,Art Renaissance Foundation,Donnalee Sarda,Editor,Page 80
1998 Mesa Tribune, `Get Out"- Mesa, AZ- Jan 1 -"Artist Profile: Unconscious comes
alive" Joshua Rose,pg 21
1996 The Arizona Republic-Phoenix,AZ-Oct 16-"Serious art",Eileen Bailey, Pg 32
1996 The Columbus Dispatch-April 14-"Modem Results"Jacqueline Hall
1996 Pasatiempo - Santa Fe, New Mexico March 8-14 - "Southwest 96" Kathleen
McCloud
1996 Art Talk,Scottsdale,AZ-December-"Art of the spirit"Bill Macomber,Pg 13
1995 New American Paintings-Open Studio Press- First Western Competition#5 Pg 40
1994 Art in America Annual-August 1994-Public Art Review Pg 26
1994 Arizona Republic-Silhouette,Phoenix,Arizona-January 2,1994
"Artist's figures making mark " Richard Nilson
1994 New Times,Phoenix,AZ-February 9, 1994-"Two faces of art"Dave Walker
1993 Art Talk,Scottsdale,Arizona-October-"Artists worth watching" Chris Smith
1993 From the Ashes,Phoenix,AZ-"Interview with Joel Coplin"Jessie Benton Gray
1993 Phoenix Gazette,Phoenix,AZ-May 24 "Art of the meal" Lynn Pyne
1991 Mesa Tribune,Mesa,AZ-February 3 "Artist find haven" Kiana Dicker
1991 New Times,Phoenix,AZ-August 7 "Holy art" Bob Adams
1991 Arizona Republic,Phoenix,AZ-Aug 2 "Artists give new life"Richard Nilson
1991 Scottsdale Progress,Scottsdale,AZ-July 25`Jury verdict Good art in Arizona"
Kiana Dicker
1990 Phoenix Magazine,Phoenix,Arizona-May "Artifacts"
1989 Phoenix Gazette,Phoenix,Arizona-April 10 "Realism exhibit"Evelyn Cooper
1987 Phoenix Gazette,Phoenix,Arizona-May 30 'Mesa Human Form raises eyebrows"
Mark Barrach
LECTURES AND WORKSHOPS
2000 Scottsdale Museum of Contemporary Art, Artist Lecture
1996 Men's Arts council of the Phoenix Art Museum
1996 ASU Art Museum,Artist's Talk
1995 Contemporary Forum-Artist's talk-Lisa Sette Gallery
1994 Phoenix Arts Commission-Workshop Series
"Marketing Your Work to public Art Programs-A Practical Guide"
JOEL COPLIN - 9919 EAST APACHE TRAIL • MESA, ARIZONA 85207 •
(480) 986-5450 E-MAIL JOLOW999@MSN COM
3
10EL COPLIN
www joelcoplmfineart corn
9919 East Main Street Studio A
Mesa,Arizona 85207
Phone 602-576-0338
Ioel coplinligmail corn
Budget for A.J. Median Project
3 Translucent Fiberglass sculptures 8'x 6'x 4' $6000 00 each $18000 00
Computor image cut out $ 1000 00
Site preparation(cement slab with course of blocks) $ 2500 00
Delivery and installation.. .. $ 2500 00
Liability insurance .$ 1000.00
Sub total . . $25,000.00
Artist fee $ 5000.00
Grand total $30,000 00
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4-0Q Cio of Apache Junction
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Houle of the .S iipe°I:ytitzon Mountains
4R1ZooP'
rwl Print
TO: City Manager's Office
FROM: SHANE KIESOW, PUBLIC WORKS MANAGER
DATE: December 5, 2011
Agenda Type : Work Session Agenda
Council Priority Focus Area:
TITLE OF AGENDA ITEM:
PRESENTATION AND DISCUSSION ON ENTERING INTO A CONTRACT WITH SIEMENS INDUSTRIES INC. THROUGH
STATE CONTRACT#EPS080079-7 FOR THE IMPLEMENTATION OF ENERGY CONSERVATION MEASURES FOR
SELECT MUNICIPAL BUILDINGS.
ACTION REQUESTED:
Presentation and Discussion
DISCUSSION/ BACKGROUND INFORMATION:
Presentation and discussion on consideration to authorize the mayor to enter into two energy saving contracts and one
financing agreement with Siemens Industries. Staff respectfully request council to consider appropriating $170,000 00 in
capital replacement funds through general fund, $130,000 00 in Energy Efficiency and Conservation Block Grant (EECBG)
grant funds, and $442,707 00 from financing lender Siemens Financial. The total amount of contracts for the nine energy
conservation projects would be $742,707.00. Services for such work would be through Siemens Industries Inc. via State
Contract#EPS080079-7
FISCAL IMPACT:
)PTIONS/ALTERNATIVES:
RECOMMENDATION:
Presentation and discussion
ATTACHMENTS:
Click to download
LI Letter to City Council
❑ AJ ARRA 111711 Final
❑ PCA City of AJ
LI AJ ExA Final 111711
LI AJ ExB Final 111711
Ll AJ ExC Final 111711
❑ Perf Contr Financing Agmt
CHE
Public Works Department
etly 1AI
z
Home of the Superstition Mountains
Rfzo
Date November 22, 2011
To. Mayor and Members of City Council
Through George Hoffman, City Manager
Giao Pham, Interim Public Works Director
From Shane Kiesow, Public Works Manager
Subject. Energy Savings Projects
Staff recommends to contract with Siemens Industry through two energy savings
contracts and one financing agreement. These contracts would leverage our existing
remaining $130,000 Energy Efficiency and Conservation Block Grant (EECBG)
monies in the City's effort to become more environmentally friendly in addition to
getting several needed capital replacement projects completed. Forty thousand
dollars of the EECBG grant has already been used for a detailed energy audit of our
municipal buildings. This audit identified nine facility improvement measures which
would conserve energy for the City in addition grant the opportunity for capital
replacement of building equipment deferred over the past several years which are in
severe need of replacement such as the Police Department cooling towers, lighting
controls at City Hall, lighting upgrades throughout the City and water conservation
measures. A combination of remaining EECBG grant monies, existing General Fund
capital replacement monies, and monies financed through Siemens' Financial
($442,707.00 over 15 years at 4.08%), would allow the City to fully capitalize on these
energy conservation improvements which would be self-funded paid over the term of
the financing period through the project's resulting energy/water savings. Total cost
of all the energy savings projects will equal $742,707 00 paid through the following
sources.
- $130,000 EECBG Grant
- $170,000 Capital Replacement(General Fund)
- $442,707 00 Private Financing Lender(Siemens Financial)
Due to the pressure to get the remaining EECBG grant dollars obligated, this is a
planned consent item for the next night's (Dec 6th) consent agenda
575 E Baseline Avenue, Apache Junction, AZ 85219
• Voice (480) 982-1055 • FAX (480) 983-5752 or(480) 982-8005
SIEMENS INDUSTRY, INC., BUILDING TECHNOLOGIES DIVISION
ARRA-FUNDED INSTALLATION AGREEMENT
THIS ARRA-FUNDED INSTALLATION AGREEMENT("Agreement")is made this 6th day of December.2011 (the"Effective Date"), by and between
Siemens Industry,Inc,Building Technologies Division("SIEMENS")and the party identified below as CLIENT
PROJECT CITY OF APACHE JUNCTION ARRA FUNDED PROJECT SII-BTD Job No AEMA-AQ76QK
CLIENT NAME AND ADDRESS SIEMENS INDUSTRY,INC,BUILDING TECHNOLOGIES DIVISION
City of Apache Junction 4025 E.Cotton Center Blvd.
575 E Baseline Avenue Phoenix,AZ 85040
Apache Junction,AZ 85219
DESIGNATED REPRESENTATIVE Shane Kiesow DESIGNATED REPRESENTATIVE.Shaun Ayvazi
, , PHONE 480-982-1055 FAX 480-982-8005 PHONE 714-816-5114 FAX 714-826-9592
AGREEMENT TERMS
ARTICLE 1 ENGAGEMENT
1 1 CLIENT hereby engages and SIEMENS hereby accepts the engagement to perform and provide the services(collectively the"Work")set forth in
Work Order— Exhibit A ("Work Order") issued pursuant to this Agreement("Agreement") and in accordance with the terms and conditions of this
Agreement Each Work Order is incorporated herein by this reference and is subject to the terms and conditions herein
1 2 SIEMENS shall perform the Work as an independent contractor with exclusive control of the manner and means of performing the Work in
accordance with the requirements of this Agreement SIEMENS has no authority to act or make any agreements or representations on behalf of
CLIENT This Agreement is not intended,and shall not be construed to create,between CLIENT and SIEMENS the relationship of pnncipal and agent,
joint venturers,co-partners or any other such relationship,the existence of which Is hereby expressly denied No employee or agent of SIEMENS shall
be,or shall be deemed to be,an employee or agent of CLIENT
1 3 SIEMENS represents that it is duly authorized to do business in all locations where the Work is to be performed CLIENT represents,warrants and
covenants to SIEMENS that(a)it has all requisite corporate power and/or statutory authority to enter into this Agreement,and that its execution hereof
has been duly authonzed and does not and will not constitute a breach or violation of any of CLIENT'S organizational documents,any applicable laws or
regulations or any agreements with third parties,(b)it has done and will continue to do all things necessary to preserve and keep in full force and effect
(i)its existence and(ii)the Agreement,(c)this Agreement is the legal,valid and binding obligation of the CLIENT in accordance with its terms,and all
requirements have been met and procedures have been followed by CLIENT to ensure the enforceability of the Agreement,and(d)there is not pending,
or to CLIENT'S best knowledge,threatened,suits,actions,litigation or proceedings against or affecting CLIENT that affect the validity or enforceability of
this Agreement
ARTICLE 2 TIME OF PERFORMANCE AND TERM OF AGREEMENT'
2 1 SIEMENS shall perform and complete all Work Orders under the Agreement in accordance with the schedule set forth in each Work Order
ARTICLE 3•COMPENSATION/TERMS OF PAYMENT
3 1 As full consideration for the performance of the Work Order,CLIENT shall pay to SIEMENS the Contract Sum stated in the Work Order in such
manner as agreed in Exhibit B or, if applicable in the Work Order and in accordance with the payment terms and conditions established by this
Agreement
ARTICLE 4 CONTRACT DOCUMENTS
4 1 This Agreement shall consist (and are collectively referred to as 4 2 In the event of any inconsistency between the
"Agreement") of the following documents which are acknowledged by provisions of the Agreement, the Inconsistency
CLIENT and SIEMENS and incorporated herein by this reference shall be resolved by giving precedence in the
order listed below
EXHIBIT A—WORK ORDER 4.2 1 Agreement
4 2 2 Work Order
EXHIBIT B—COMPENSATION/PAYMENT
EXHIBIT C—GENERAL CONDITIONS 4 3 Any work commenced and any payments made pursuant to an Work
Order shall be deemed to have been done and paid after the Effective
Date and under the terms of the Agreement
TOTAL PAGES ATTACHED(INCLUDING EXHIBITS) _
AGREED FOR CLIENT AGREED FOR SIEMENS INDUSTRY,INC (SIEMENS)
SIGNATURE BY DATE SIGNATURE BY DATE
PRINT NAME&TITLE PRINT NAME&TITLE
1 FORM SBT-100(10/09)
SIEMENS INDUSTRY, INC., BUILDING TECHNOLOGIES DIVISION
EXHIBIT A-WORK ORDER
Article 1 Scope of Work
1 1 Description Except as otherwise expressly provided herein, SIEMENS shall provide each and every item of cost and expense necessary for
installation of the Facility Improvement Measures(FIMs)defined in Section 1 2,below
1 2 Specific Elements The Work shall include the following
1 2 1 Lighting Controls
Building Included City Hall Complex,300 East Superstition Blvd
r►,
Scope of Work
• Upgrade the controls and processors of the existing ETC Unison Dimming System
• Replace existing control station&rack processors
• Replace existing dimming modules with additional relay modules
• All installation and initial programming
• Factory start-up and turn-on of the system
• SIEMENS will coordinate two hours of onsite training on the new lighting system
Assumptions
• Work to be done during regular hours(Monday—Thursday)unless otherwise agreed by the parties
Exclusions
• Stamped drawings and/or engineering review
• Any existing problems with electrical wiring for the existing lighting control panel
1.2.2 Replacement Roof Top Mounted Heat Pump Air Conditioning Unit
Building Included Parks&Parks and Recreation 1001 North Idaho Rd
Scope of Work
• Furnish and install one(1)new high efficiency heat pump air conditioning unit on the roof of the building Minimum efficiency of
the new heat pump air conditioning units shall be 12 0 EER
• Disconnect electrical from one(1)heat pump air conditioning unit
• Demo existing roof equipment curbs and duct transitions as required
• The nominal tonnage of the new high efficiency heat pump air conditioning unit shall be one(1)3 5 ton unit The existing heat
pump air conditioning unit is as follows
Mark Manufacturer/Model Qty
None Goettl 1
Model HP422E
Serial 6073020
• Furnish and install new supply and return double wall aluminum duct transition on the new air conditioning unit
• Furnish and install all necessary condensate drain piping and vents,etc as required for functional system
• Reconnect electrical service to new air conditioning unit Provide new disconnects,flexible conduit,and electrical conductors,
all new electrical work to be per applicable codes
• Install new heat pump air conditioning unit on new roof equipment curbs Flash roofing material around new roof equipment
curbs
• Furnish and install one(1)new 365 day programmable thermostat for the heat pump
• Provide installation and startup
Assumptions
• Work to be done during regular hours(Monday—Thursday)unless otherwise agreed by the parties
• Provisions for temporary power,cooling or heating are not included
Exclusions
• No roof work is included in this scope of work Any roof work required must be handled separately by CLIENT
• Structural analysis regarding the installation of the new unit Any structural evaluation and associated costs must be handled
separately by CLIENT
Siemens Industry, Inc., Building Technologies Division Form SBT-100(10/09)-ARRA
.m. ...
1.2.3 Condenser Water System VFD Upgrades
Building Included Police Department, 1001 North Idaho Rd
Scope of Work
• Replace two (2) older centrifugal pumps and motors with new higher efficiency centrifugal pumps and premium efficiency
inverter duty motors
• Disconnect electrical from two(2),end suction,centrifugal,condenser water pumps
• Demo existing base mounted centrifugal condenser water pumps
• Provide detailed electrical engineering drawings and schematics as required Drawings will include equipment layout for
approval by local authority having jurisdiction
• Pumps shall be base mounted The existing horizontal end suction centrifugal condenser water pumps are as follows
Mark Manufacturer/Model Qty
'^ None Bell & Gossett 1510 / Model 2
2 1/2 BB
• Pumps shall have premium efficiency inverter duty motors Premium efficiency inverter duty electric motors(enclosed frame)
shall have efficiency levels as contained in NEMA Standards Publication MG 1-2006, Table 12-12, for open and enclosed
frames
• Install variable frequency drive controllers on the two (2) 10 hp condenser water pumps on the water source heat pump
system
• Reconnect electrical service to new premium efficiency inverter duty motors New electrical service to include new
disconnects,flexible conduit,and electrical conductors,all new electrical work to be per applicable codes
• Provide installation and mechanical startup of same
Assumptions
• Work to be done during regular hours(Monday—Thursday)unless otherwise agreed by the parties
• Provisions for temporary power cooling or heating are not included
Exclusions
• Problems with the existing pump bases and/or the integrity of the pump pads
1 2 4 Installation of new Split System Air Conditioning Unit
Building Included Police Department, 1001 North Idaho Rd
Scope of Work
• Furnish and install one (1) new high efficiency split system air conditioning unit The nominal tonnage of the new high
efficiency split system air conditioning unit will be 1 5 tons Minimum efficiency of the new split system air conditioning units
shall be 15 5 SEER
• Reroute duct drop from the electronic equipment rooms to the dispatcher work station room,and install a new diffuser into the
dispatcher work station room ceiling
• Provide all necessary isolation valves, temp sensors and gauges, pipe supports, insulation and aluminum jacketing, as
required for functional system
• Provide and install refrigerant piping for functional system
• Connect electrical service to new split system air conditioning unit Provide new electrical disconnects, flexible conduit, and
ANNIk, electrical conductors,all new electrical work to be per applicable codes
• Provide and install programmable thermostat to control the split system
Assumptions
• Work to be done during regular hours(Monday—Thursday)unless otherwise agreed by the parties
• Provisions for temporary power,cooling or heating are not included
Exclusions
• No roof work is included in this scope of work Any roof work required must be handled separately by CLIENT
• Structural analysis regarding the installation of new units Any structural evaluation and associated costs will be handled
separately by CLIENT
Article 2 Work Implementation Period
2 1 Commencement of Work
2 1 1 SIEMENS shall commence the Work 30 calendar days from the Effective Contract Date, and shall perform the Work diligently and shall
complete the Work no later than 18 0 calendar days from the day of commencement
Siemens Industry, Inc., Building Technologies Division Form SBT-100(10/09)-ARRA
SIEMENS INDUSTRY, INC., BUILDING TECHNOLOGIES DIVISION
EXHIBIT B-COMPENSATION/PAYMENT
1 1 Price As full consideration of the Work Order as described in Exhibit A, the CLIENT shall pay to SIEMENS $130.000 (plus taxes, if
applicable)
1 2 Escrow The CLIENT has agreed to deposit the Price into an escrow account at a financial institution satisfactory to both the CLIENT and
SIEMENS All expenses to establish the Escrow Account shall be the complete responsibility of the CLIENT and the CLIENT will receive all ••■••,
interest earnings from the escrow account. SIEMENS will submit periodic invoices to the CLIENT based on the Payment Schedule in Table
B 1 below The CLIENT shall be responsible for submitting the necessary documents to the escrow agent to allow for timely disbursements
from the escrow account The funding of the escrow account in an amount equal to or greater than the Price stated in Article 1 1 above shall
be a condition precedent to SIEMENS obligation to perform or to continue the performance of the Work If the escrow account is not funded
within 30days of the execution of this Agreement, this Agreement shall be null and void This 30 day funding period may be extended as
mutually agreed in writing by the Parties In the event that the Agreement becomes null and void as described in this paragraph and CLIENT
has previously authorized SIEMENS to proceed with the Work,the CLIENT shall be obligated to reimburse SIEMENS for the Work performed
1 3 Timely Payments:The CLIENT agrees to pay SIEMENS per Table B 1 below and pursuant to Article 4 of Exhibit C herein
Table B 1—Work Payment Schedule
Project Phase Payments($) Payments(%) Est Schedule
Mobilization 39000 00 30
Payment Based on schedule of value 91000 00 70
PROJECT TOTAL: $130,000 100%
Siemens Industry, Inc., Building Technologies Division Form SBT-100(10/09)-ARRA
SIEMENS INDUSTRY, INC., BUILDING TECHNOLOGIES DIVISION
EXHIBIT C-GENERAL CONDITIONS
Article 1 General
1 1 (a)The Agreement constitutes the entire, complete and exclusive agreement between the parties relating to the services("Services")and the equipment,
materials parts supplies and software (collectively "Product")to be provided by SIEMENS as described in each Work Order (such Services and Product
collectively referred to as"Work")and shall supersede and cancel all prior agreements and understandings,wntten or oral, relating to the subject matter of the
Agreement Neither party may assign the Agreement or any rights or obligations hereunder without the prior written consent of the other,except that either party
may assign this Agreement to its affiliates and SIEMENS may grant a security interest in the Agreement, assign proceeds of the Agreement, and/or use
subcontractors in performance of the Work
(b) The terms and conditions of this Agreement shall not be modified or rescinded except in writing, signed by a corporate officer of SIEMENS and
representative of CLIENT SIEMENS' and CLIENT'S performance under this Agreement is expressly conditioned on the terms of this Agreement,
notwithstanding any different or additional terms contained in any writing at any time submitted or to be submitted to SIEMENS by CLIENT relating to the Work
c) The terms and conditions set forth herein shall supersede,govern and control any conflicting terms of the Proposed Solution or the Proposal
d) Nothing contained in this Agreement shall be construed to give any nghts or benefits to anyone other than the CLIENT and SIEMENS without the express
written consent of both parties All provisions of this Agreement allocating responsibility or liability between the parties shall survive the completion of the Work and
termination of this Agreement
1 2 This Agreement shall be governed by and enforced in accordance with the laws of the State of Illinois Any litigation arising under this Agreement shall be
brought in the State or Commonwealth in which the Work is being provided to CLIENT The parties waive any nght to a jury trial on matters arising out of this
Agreement
Article 2 Work by SIEMENS
2.1 SIEMENS will perform the Work expressly descnbed in a Work Order(including any change orders thereto mutually agreed upon in writing)issued under this
Agreement and signed by both parties The Work shall be performed in a manner consistent with the degree of care and skill ordinarily exercised by reputable
companies performing the same or similar Work in the same locale acting under similar circumstances and conditions
2.2 SIEMENS shall perform the Work dunng its local,normal working hours,unless otherwise agreed in a Work Order
2.3 SIEMENS is not required to conduct safety or other tests,install or maintain any devices or equipment or make modifications or upgrades to any Product
beyond the scope set forth in a Work Order Any CLIENT request to change the scope or the nature of the Work must be in the form of a mutually agreed
change order,effective only when executed by all parties hereto
2 4 All reports and drawings specifically prepared for and deliverable to CLIENT pursuant to a Work Order("Deliverables")shall become CLIENT'S property upon
full payment to SIEMENS. SIEMENS may retain file copies of such Deliverables All other reports, notes, calculations data drawings,estimates,specifications,
manuals, other documents and all computer programs codes and computenzed matenals prepared by or for SIEMENS are instruments of SIEMENS' work
("Instruments")and shall remain SIEMENS'property Siemens conveys no license to software unless otherwise expressly provided in the Work Order To the
extent specified in the Work Order CLIENT, its employees and agents ("Permitted Users") shall have a right to make and retain copies of Instruments
except uncompiled code,and to use all Instruments,provided however the Instruments shall not be used or relied upon by any parties other than Permitted
Users and such use shall be subject to this Agreement and limited to the particular project and location for which the Instruments were provided All
Deliverables and Instruments provided to CLIENT are for Permitted Users'use only for the purposes disclosed to SIEMENS,and CLIENT shall not transfer them to
others or use them or permit them to be used for any extension of the Work or any other project or purpose,without SIEMENS'express written consent Any reuse
of Deliverables or Instruments for other projects or locations without the written consent of SIEMENS or use by any party other than Permitted Users,will be
at Permitted Users'sole risk and without liability to SIEMENS,and, in addition to any other rights SIEMENS may have,CLIENT shall indemnify,defend and
hold SIEMENS harmless from any claims,losses or damages arising therefrom
2.5 CLIENT acknowledges that SIEMENS, in the normal conduct of its business, may use concepts and improved skills and know-how developed while
performing other contracts CLIENT acknowledges the benefit which may accrue to it though this practice, and accordingly agrees that anything in this
Agreement notwithstanding Siemens may continue, without payment of a royalty, this practice of using concepts and improved skills and know-how
developed while performing this Agreement
2.6 SIEMENS shall be responsible for any portion of the Work performed by any subcontractor of SIEMENS SIEMENS shall not have any responsibility,duty or
authority to direct,supervise or oversee any employees or contractors of CLIENT or their work or to provide the means,methods or sequence of their work or to
stop their work SIEMENS'work and/or presence at a site shall not relieve others of their responsibility to CLIENT or to others SIEMENS shall not be liable for the
failure of CLIENT'S employees,contractors or others to fulfill their responsibilities,and CLIENT agrees to indemnify,hold harmless and defend SIEMENS against
any claims arising out of such failures
Article 3 Responsibilities of CLIENT
3.1 CLIENT without cost to SIEMENS,shall
(a) Designate a contact person with authority to make decisions for CLIENT regarding the Work and provide SIEMENS with information sufficient to contact
such person in an emergency If such representative cannot be reached,any request for work received from a person located at CLIENT'S site will be deemed
authorized by CLIENT and SIEMENS will,in its reasonable discretion,act accordingly,
(b) Provide or arrange for reasonable access and make all provisions for SIEMENS to enter any site where Work is to be performed,
(c) Permit SIEMENS to control and/or operate all controls,systems,apparatus,equipment and machinery necessary to perform the Work,
(d) Furnish SIEMENS with all available information pertinent to the Work,
(e) Furnish SIEMENS with all approvals,permits and consents from government authorities and others as may be required for performance of the Work except
for those SIEMENS has expressly agreed in writing to obtain,
(f) Maintain the Work site in a safe condition, notify SIEMENS promptly of any site conditions requiring special care,and provide SIEMENS with any available
documents describing the quantity,nature,location and extent of such conditions,
(g) Comply with all laws and provide any notices required to be given to any government authorities in connection with the Work,except such notices SIEMENS
has expressly agreed in writing to give,
(h) Provide SIEMENS with Material Safety Data Sheets(MSDS)conforming to OSHA requirements related to all Hazardous Matenals located at the site which
may impact the Work,
(i) Fumish to SIEMENS any contingency plans related to the site,and
(j) Furnish the specified operating environment, including without limitation, suitable, clean, stable, properly conditioned electrical power for the Work;
telephone lines,capacity and connectivity as required by the Work and heat,light,air conditioning and other utilities for the Work
3.2 CLIENT acknowledges that the technical and pricing information contained in this Agreement is confidential and proprietary to SIEMENS and agrees not to
disclose it or otherwise make it available to others without SIEMENS'express written consent
3.3 CLIENT acknowledges that it is now and shall at all times remain in control of the Work site Except as expressly provided herein, SIEMENS shall not be
responsible for the adequacy of the health,safety or security programs or precautions related to CLIENT'S activities or operations CLIENTS other contractors,the
work of any other person or entity, or CLIENT'S site conditions SIEMENS is not responsible for inspecting,observing, reporting or correcting health or safety
conditions or deficiencies of CLIENT or others at CLIENT'S site So as not to discourage SIEMENS from voluntarily addressing health or safety issues at CLIENT'S
site,in the event SIEMENS does address such issues by making observations,reports,suggestions or otherwise,SIEMENS shall not be liable or responsible on
account thereof
Siemens Industry, Inc, Building Technologies Division Form SBT-100(10/09)-ARRA
3.4 Except as expressly stated in a Work Order,CLIENT is solely responsible for any removal,replacement or refinishing of the building structure or finishes
that may be required to perform or gain access to the Work
Article 4:Compensation
4.1 SIEMENS shall be compensated for the Work as expressly stated in a Work Order, or if not expressly stated then at its prevailing rates and shall be
reimbursed for costs and expenses(plus reasonable profit and overhead)incurred in performance of the Work
4.2 SIEMENS shall invoice CLIENT as provided in this Agreement(including any modifications in a Work Order),or if not expressly provided,then on a monthly
or other progress billing basis Invoices are due and payable within 25 calendar days of receipt by CLIENT or as otherwise set forth in a Work Order If any
payment is not received when due, SIEMENS may deem CLIENT to be in breach hereof and may enforce any remedies available to it hereunder or at law,
including without limitation, acceleration of payments and suspension or termination of the Work at any time and without notice, and shall be entitled to
compensation for the Work previously performed and for costs reasonably incurred in connection with the suspension or termination Any amount not paid within
ten(10)days of the date due shall accrue interest from the date due,until paid,at the rate of twelve percent(12%)per annum CLIENT shall reimburse SIEMENS
for SIEMENS' costs and expenses (including reasonable attorneys' and witnesses' fees) incurred for collection under this Agreement In the event CLIENT
disputes any portion or all of an invoice,it shall notify SIEMENS in writing of the amount in dispute and the reason for its disagreement within 21 days of receipt of
the invoice The undisputed portion shall be paid when due,and interest on any unpaid portion shall accrue as aforesaid,from the date due until the date of
payment,to the extent that such amounts are finally determined to be payable to SIEMENS
4.3 Except to the extent expressly agreed in a Work Order,SIEMENS'fees do not include any taxes,excises,fees,duties or other government charges related to
the Work and CLIENT shall pay such amounts or reimburse SIEMENS for any amounts it pays If CLIENT claims a tax exemption or direct payment permit,it shall
provide SIEMENS with a valid exemption certificate or permit and indemnify,defend and hold SIEMENS harmless from any taxes,costs and penalties ansing out of
same
Article 5 Changes,Delays,Excused Performance
5.1 As the Work is performed, conditions may change or circumstances outside SIEMENS' reasonable control (including changes of law)may develop which
requires SIEMENS to expend additional costs,effort or time to complete the Work,in which case SIEMENS will notify CLIENT and an equitable adjustment will be
made to the compensation and time for performance In the event conditions or circumstances require Work to be suspended or terminated,SIEMENS shall be
compensated for Work performed and for costs reasonable incurred in connection with the suspension or termination
5.2 SIEMENS shall not be responsible for loss, delay, injury, damage or failure of performance that may be caused by circumstances beyond its control,
including but not limited to acts or omissions by CLIENT or its employees, agents or contractors, Acts of God, war, civil commotion, acts or omissions of
government authorities fire theft corrosion flood water damage lightning,freeze-ups,strikes,lockouts,differences with workmen,riots,explosions,quarantine
restrictions,delays in transportation,or shortage of vehicles,fuel, labor or materials In the event of any such circumstances,SIEMENS shall be excused from
performance of the Work and the time for performance shall be extended by a period equal to the time lost plus a reasonable recovery penod and the
compensation shall be equitably adjusted to compensate for additional costs SIEMENS incurs due to such circumstances
Article 6 Warranty,Allocation of Risk
61 (a) Except as provided in a Work Order all Product manufactured by SIEMENS or bearing its nameplate is warranted to be free from defects in material
and workmanship arising from normal use and service for one year from the earlier of the date installed by SIEMENS or date of first beneficial use
(b) Except as provided in a Work Order,labor for all Services under this Agreement is warranted to be free from defects for one year after the earlier of the date
the Services are substantially completed or date of first beneficial use
6.2 (a) The limited warranties set forth above shall be void as to, and shall not apply to,any Work(i)repaired,altered or improperly installed by any person
other than SIEMENS or its authorized representative, (ii)subjected to unreasonable or improper use or storage, used beyond rated conditions,operated other
than per SIEMENS'or the manufacturer's instructions, or otherwise subjected to improper maintenance, negligence or accident, (iii)damaged because of any
use of the Work after CLIENT has, or should have, knowledge of any defect in the Work, or(iv) Product not manufactured, fabricated and assembled by
SIEMENS or not beanng SIEMENS' nameplate SIEMENS assigns to CLIENT, without recourse, any and all assignable warranties available from any
manufacturer,supplier,or subcontractor of such Product and will assist CLIENT in enforcement of such assigned warranties
(b) Any claim under the limited warranty granted above must be made in writing to SIEMENS within thirty(30)days after discovery of the claimed defect Such
limited warranty only extends to CLIENT and not to any subsequent owner of the Work CLIENT'S sole and exclusive remedy for any Work not conforming with
this limited warranty is limited to,at SIEMENS'option,(i)repair or replacement of defective components of covered Product,or(ii)reperformance of the defective
portion of the Services,or(iii)to the extent previously paid, the issuance of a credit or refund for the original purchase price of such defective component or
potion of the Work
(c) SIEMENS shall not be required to repair or replace more than the component(s)of the Work actually found to be defective SIEMENS'warranty liability
shall not exceed the purchase price of such item Repaired or replaced Work will be warranted hereunder only for the remaining portion of the original warranty
period
6.3 THE EXPRESS LIMITED WARRANTIES PROVIDED ABOVE ARE IN LIEU OF AND EXCLUDE ALL OTHER WARRANTIES,STATUTORY EXPRESS,
OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,WHICH ARE
HEREBY EXPRESSLY DISCLAIMED SIEMENS MAKES NO WARRANTY EXPRESS OR IMPLIED THAT ANYWORK PROVIDED HEREUNDER WILL
PREVENT ANY LOSS, OR WILL IN ALL CASES PROVIDE THE PROTECTION FOR WHICH IT IS INSTALLED OR INTENDED THE LIMITED EXPRESS
WARRANTIES AND REPRESENTATIONS SET FORTH IN THIS AGREEMENT MAY ONLY BE MODIFIED OR SUPPLEMENTED IN A WRITING SIGNED BY
A DULY AUTHORIZED CORPORATE OFFICER OF SIEMENS
6.4 Risk of loss of Product furnished by SIEMENS shall pass to CLIENT upon delivery to CLIENT'S premises,and CLIENT shall be responsible for protecting and
insuring them against theft and damage However,until SIEMENS is paid in full,SIEMENS shall retain title for security purposes only and the right to repossess the
Product
6.5 CLIENT hereby, for it and any parties claiming under it, releases and discharges SIEMENS from any liability arising out of all hazards covered by
CLIENT'S insurance, and all claims against SIEMENS arising out of such hazards, including any right of subrogation by CLIENT'S insurance carrier, are
hereby waived by CLIENT
6 6 Anything herein notwithstanding, in no event shall either party be responsible under this Agreement for incidental, consequential, punitive, exemplary or
special damages including without limitation lost profits, loss of use and/or lost business opportunities whether arising in warranty,late or non-delivery of any
Work,tort contract or strict liability and regardless of whether either party has been advised of the possibility of such damages and in any event, SIEMENS
aggregate liability for any and all claims,losses or expenses(including attorneys fees)arising out of this Agreement,or out of any Work furnished under this
Agreement,whether based in contract,negligence strict liability agency,warranty,trespass,indemnity or any other theory of liability,shall be limited to the
lesser of$1 000 000 or the total compensation received by SIEMENS from CLIENT under this Agreement SIEMENS reserves the right to control the defense
and settlement of any claim for which SIEMENS has an obligation to indemnify hereunder The parties acknowledge that the price which SIEMENS has agreed
to perform its Work and obligations under this Agreement is calculated based upon the foregoing limitations of liability,and that SIEMENS has expressly relied
on,and would not have entered into this Agreement but for such limitations of liability
6.7 It is understood and agreed by and between the parties that SIEMENS is not an insurer and this Agreement is not intended to be an insurance policy or
a substitute for an insurance policy Insurance,if any,shall be obtained by CLIENT Fees are based solely upon the value of the Work,and are unrelated to
the value of CLIENT'S property or the property of others on CLIENT'S premises
Article 7:Hazardous Materials
7.1 The Work does not include directly or indirectly performing or arranging for the detection,monitoring,handling,storage,removal,transportation,disposal or
treatment of Oil or Hazardous Matenals Except as disclosed pursuant to this Article,CLIENT represents that,to its best knowledge,there is no asbestos or any
other hazardous or toxic materials, as defined in the Comprehensive Environmental Response Compensation and Liability Act of 1980 as amended the
Siemens Industry, Inc , Building Technologies Division Form SBT-100(10/09)-ARRA
regulations promulgated thereunder, and other applicable federal, state or local law("Hazardous Materials") present at CLIENT'S Sites where the Work is
performed SIEMENS will notify CLIENT immediately if it discovers or suspects the presence of any Hazardous Material All Services have been pnced and
agreed to by SIEMENS in reliance on CLIENT'S representations as set forth in this Article The presence of Hazardous Materials constitutes a change in the
Work Order whose terms must be agreed upon by SIEMENS before its obligations hereunder will continue
72 CLIENT shall be solely responsible for testing,abating, encapsulating, removing, remedying or neutralizing such Hazardous Materials and for the costs
thereof CLIENT is responsible for the proper disposal of all Hazardous Matenals and Oil, including but not limited to ionization smoke detectors, ballasts,
mercury bulb thermostats, used oil,contaminated filters, contaminated absorbents,or refrigerants,that at any time are present at the Work site in accordance
with all applicable federal,state,and local laws,regulations,and ordinances Even if an appropriate change order has been entered into pursuant to this Article,
SIEMENS shall continue to have the right to stop the Work until the job site is free from Hazardous Materials In such event,SIEMENS will receive an equitable
extension of time to complete the Work,and compensation for delays caused by Hazardous Materials remediation In no event shall SIEMENS be required or
construed to take title,ownership or responsibility for such Oil or Hazardous Materials CLIENT shall sign any required waste manifests in conformance with all
government regulations,listing CLIENT as the generator of the waste
7 3 CLIENT warrants that,prior to the execution of a Work Order,it shall notify SIEMENS in writing of any and all Hazardous Materials which to CLIENT'S best
knowledge are present potentially present or likely to become present at the Work site and shall provide a copy of any Work site safety policies,including but not
limited to lock-out and tag procedures,laboratory procedures,chemical hygiene plan MSDSs or other items covered or required to be disdosed or maintained
by federal,state,or local laws,regulations or ordinances
7.4 For separate consideration of$10 and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledge,CLIENT shall
indemnify,defend and hold SIEMENS harmless from and against any damages losses,costs,liabilities or expenses(including attomeys'fees)arising out of any
Oil or Hazardous Materials or from CLIENT'S breach of,or failure to perform its obligations under this Article
Article 8 Import/Export Indemnity
8 1 CLIENT acknowledges that SIEMENS is required to comply with applicable export laws and regulations relating to the sale, exportation transfer
assignment, disposal and usage of the Work or Equipment or Services provided under the Contract including any export license requirements CLIENT
agrees that such Work or Equipment or Services shall not at any time directly or indirectly be used, exported, sold, transferred, assigned or otherwise
disposed of in a manner which will result in non-compliance with such applicable export laws and regulations Jt shall be a condition of the continuing
performance by SIEMENS of its obligations hereunder that compliance with such export laws and regulations be maintained at all times CLIENT AGREES
TO INDEMNIFY AND HOLD SIEMENS HARMLESS FROM ANY AND ALL COSTS, LIABILITIES, PENALTIES SANCTIONS AND FINES RELATED TO
NON-COMPLIANCE WITH APPLICABLE EXPORT LAWS AND REGULATIONS
Article 9 American Recovery and Reinvestment Act of 2009("ARRA")and U S Department of Energy Required Clauses
Whereas, the Parties acknowledge that the Work of this Agreement is funded with grant monies made available through ARRA by the U S Department of
Energy to the CLIENT,and whereas,the applicable federal statutory and regulatory requirements call for the Parties to undertake specific obligations incident to
the funding and delivery of the Work,the Parties further agree as follows
14 1 Access to Records and Audit. The Parties agree that with respect to funds appropriated or otherwise made available by ARRA for the Project, any
representative of an appropriate inspector general appointed under section 3 or 8G of the Inspector General Act of 1988(5 U S C App)or the Comptroller
General is authorized (1)to examine any records of the Parties,any of their respective subcontractors or subgrantees,as applicable or any state or local agency
administering such contract that pertain to and involve transactions that relate to this Agreement and any subcontract or consultant agreement, subcontract,
grant,or subgrant,and(2)to interview any officer or employee of the contractor,grantee,subgrantee,or agency regarding such transactions SIEMENS agrees
that it will retain its books,records,documents and papers directly pertinent to this Agreement for a period of three(3)years after completion of the Work for the
purpose of making such records which are not privileged from disclosure available for audit examination as permitted under this provision
14 2 Protecting State and Local Govemment Contractor Whistleblowers The Parties shall comply with Section 1552 of ARRA, "Protecting State and Local
Government and Contractor Whistleblowers,"and this Agreement incorporates the provisions contained therein by reference
14 3 Required Use of American Iron,Steel and Manufactured Goods—Section 1605 of the Amencan Recovery and Reinvestment Act of 2009 SIEMENS and
its subcontractors at every tier will provide Equipment required under this Agreement in accordance with Section 1605 of ARRA,unless an exception exists as
indicated therein or a waiver to its application is sought Documentation supporting the origin of manufacture will be provided by SIEMENS to CLIENT
14 4 Wage Rate Requirements Under Section 1606 of the Recovery Act The Parties agree that all laborers and mechanics employed by SIEMENS and its
subcontractors for the Work shall be paid wages at rates not less than those prevailing on projects of a character similar in the locality as determined by the
Secretary of Labor in accordance with subchapter IV of chapter 31 of title 40,United States Code and,further as provided in Section 1411 hereof
14 5 Contract Cost Principles The Parties shall perform their respective obligations under this Agreement in compliance with the Contract Cost Principles at
FAR 31 2(10 C F R §600 221)to the extent such principles are applicable to this Work and as expressly incorporated in this Agreement The Parties stipulate
that the Equipment provided to CLIENT pursuant to this Agreement is considered commercial off-the-shelf item(s) as that term is defined under FAR 2 101,and
that no provision this Agreement requires federal cost accounting standards compliance on the part of SIEMENS
14 6 DBE/MBE Subcontracting Goals The Parties shall perform their respective obligations under this Agreement in compliance with the Department of
Energy's DBE and MBE subcontracting goals to the extent applicable to the Project subject of this Agreement as the same are set forth in 10 C F R §
600 236(e)
14 7 Termination for Convenience Notwithstanding anything to the contrary in this Agreement,CLIENT may terminate this Agreement for convenience upon
sixty(60)days prior written notice,in which case SIEMENS shall be entitled to payment for all Work or Service performed prior to the effective date of termination
and reimbursement for all cancellation charges incurred by SIEMENS in relation to its subcontractors,suppliers and/or consultants
14 8 Default and Remedies Except for disputes to be resolved in accordance with Section 4 8 of the Agreement,the occurrence of any one or more of the
following matters shall constitute a default under this Agreement(a"Default") (a)failure by either Party to observe and perform any covenant, condition or
agreement on its part to be observed or performed hereunder and the continuation of the same for thirty(30)days after the defaulting parry's receipt of written
notice thereof from the non-defaulting party, provided, however, if such matter cannot with due diligence be remedied by the defaulting party within such thirty
(30)day period and the defaulting Party shall have diligently prosecuted the remedying of such failure within such thirty(30)days,such period shall be extended
by such additional time penod as may be reasonably required by the defaulting party to cure or correct such matter(it being agreed,however,that nonpayment
of monies by either party shall not,under any circumstances,give rise to an extension in the preceding thirty(30)day period),(b)the insolvency dissolution or
liquidation of either party, or the filing of a petition in bankruptcy by or against either party, or the adjudication of either party as bankrupt, or any general
assignment by either party for the benefit of its creditors,or the application for or consent to,the appointment of any receiver,trustee custodian,or similar officer
by either party or(c)failure (or admission in writing of inability or unwillingness)by one party hereunder to pay amounts due and payable to the other party
hereunder Should SIEMENS be in Default,CLIENT may terminate this Agreement and finish the Work to be perform during the Construction Penod,provided
that if the cost of finishing such portion of the Work exceeds the unpaid balance of the contract sum for such Work,SIEMENS shall pay the difference to CLIENT,
and if the unpaid balance of that contract sum exceeds the cost of finishing the Work,CLIENT shall pay the difference to SIEMENS subject to the limitations in
Section 10 4 SIEMENS shall, however, have no obligations or liabilities respecting any Guaranteed Savings hereunder Should CLIENT be in Default,
SIEMENS may terminate this Agreement and avail itself of any and all rights or remedies available at law or in equity,subject to the limitations in Section 10.4
14 9 Equal Employment Opportunity The Parties shall perform their respective obligations under this Agreement in compliance with Executive Order 11246 of
September 24 1965,entitled"Equal Employment Opportunity,"as amended by Executive Order 11375 of October 13, 1967 as supplemented in Department of
Labor regulations(41 C F R chapter 60)
14 10 Anti-Kickback Provisions The Parties shall perform their respective obligations under this Agreement in compliance with the Copeland"Anti-Kickback"
Act(18 U.S C §874),as supplemented in Department of Labor regulations(29 C F R Part 3)
Siemens Industry, Inc., Building Technologies Division Form SBT-100(10/09)-ARRA
14 11 Davis-Bacon Act The Parties shall perform their respective obligations under this Agreement in compliance with the Davis-Bacon Act(40 U S C §276a
to 276a-7),as supplemented by Department of Labor regulations(29 C F R Parts 3 and 5)and referenced in paragraph 29 of the Special Terms and Conditions
of the Assistance Agreement between McHenry County and the U S Department of Energy,No DE-EE0000821
14 12 Contract Work Hours and Safety Standards Act The Parties shall perform their respective obligations under this Agreement in compliance with Sections
103 and 107 of the Contract Work Hours and Safety Standards Act(40 U S.0 327-330) as supplemented by Department of Labor regulations(29 C F R Part
5)
14 13 Reporting Requirements The Parties acknowledge notice of U S Department of Energy requirements and regulations concerning reporting and
SIEMENS agrees to provide its best reasonable efforts to assist CLIENT in meeting its applicable reporting requirements It is expressly acknowledged and
agreed that (1)CLIENT is not delegating nor assigning any of CLIENT's reporting obligations,as Prime Recipient,under Section 1512(c)of ARRA to SIEMENS
through this Agreement or any other document, (2)that SIEMENS will not be submitting any reports or information directly to the U S Department of Energy or
any other Federal government entity pursuant to Section 1512(c)of ARRA,and (3)that CLIENT, as the Prime Recipient of ARRA funds used to finance this
Project,is ultimately responsible for ensuring and/or certifying the accuracy of all reported information
14 14 Patents The Parties acknowledge notice of requirements and regulations pertaining to governmental patent rights respecting any discovery or invention
which arises or is developed in the course of an experimental, developmental or research agreement, as provided in 10 C F R 600, and certify that the
Agreement is not an experimental,developmental or research agreement in any way shape or form
14 15 Copvnghts The Parties acknowledge that the U S Department of Energy reserves a royalty-free,non-exclusive,irrevocable,license to reproduce,publish
or otherwise use for federal governmental purposes (1) the copyright in any work developed under the grant or subgrant funding this Work or under any
contracts issued pursuant such grant or subgrant,and(2)any rights of copyrights respecting which any grantee,subgrantee or SIEMENS purchases ownership
with grant support funding this project
14 16 SIEMENS and its subcontractors shall comply with all applicable standards,orders,or requirements issued under Section 306 of the Clean Air Act(42
U S C 1857(h)),Section 508 of the Clean Water Act(33 U S C 1368), Executive Order 11738,and Environmental Protection Agency regulations(40 CFR Part
15),for all contracts in excess of$100,000
14 17 SIEMENS and its subcontractors shall comply with mandatory standards and policies relating to energy efficiency which are contained in the state energy
conservation plan issued in compliance with the Energy Policy and Conservation Act(Pub L 94-163 89 Stat 871)
Siemens Industry, Inc, Building Technologies Division Form SBT-100(10/09)-ARRA
PERFORMANCE CONTRACTING AGREEMENT
between
fl
and
Siemens Industry, Inc.,
Building Technologies Division
TABLE OF ARTICLES
1 Agreement
2. Glossary
3 General
4 Performance Guarantee
5. Work by SIEMENS
6 The CLIENT's Responsibilities
7 Changes and Delays
8. Compensation
9 Acceptance
10. Insurance and Allocation of Risk
�., 11 Hazardous Material Provisions
12 Miscellaneous Provisions
13. Maintenance Services Program
Page 1 of 18
PERFORMANCE CONTRACTING AGREEMENT
Number 440P-089721
Article 1
AGREEMENT
THIS PERFORMANCE CONTRACTING AGREEMENT ("Agreement") is made this 6th day of December, 2011 (the
"Effective Contract Date", defined below), by and between Siemens Industry, Inc, Building Technologies Division
("SIEMENS")and the party identified below as the CLIENT
The CLIENT City of Apache Junction
575 E Baseline Ave
Apache Junction AZ, 85219
DESIGNATED REPRESENTATIVE Shane Kiesow, Director of Public Works
PHONE. (480)982-1055 FAX' (480)982-8005
Siemens Industry,Inc.,Building Technologies Division
1000 Deerfield Parkway
Buffalo Grove, Illinois 60089
With offices at
4025 E Cotton Center Blvd
Phoenix,AZ 85040
DESIGNATED REPRESENTATIVE Shaun Ayvazi
PHONE (714)227-1578 FAX, (714)826-9592
For Work and Services in connection with the following project(the"Project")
Energy Conservation Projects at City of Apache Junction
The CLIENT considered performing the following FIMs but at this time, has determined to exclude them from the Scope of
Work and Services, Exhibit A
Street Lighting
Emergency Generator
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PERFORMANCE CONTRACTING AGREEMENT
Articles and Attachments
This Agreement consists of this document, which includes the following articles and exhibits which are acknowledged by the
CLIENT and SIEMENS and incorporated into the Agreement by this reference
Articles
1 Agreement
2 Glossary
3 General
4 Performance Guarantee
5. Work BY SIEMENS
6 The CLIENT's Responsibilities
7 Changes and Delays
8 Compensation
9 Acceptance
10 Insurance and Allocation of Risk
11 Hazardous Material Provisions
12 Miscellaneous Provisions
13 Maintenance Services Program
14 ARRA and U S Department of Energy Required Clauses
Exhibits
Exhibit A Scope of Work and Services
Exhibit B Payment Schedule(s)
Exhibit C Performance Assurance
Exhibit D Room by Room Lighting Audit
Exhibit E Mechanical Cutsheet
Exhibit F Water Fixtures Cutsheet
Exhibit G DDC Controls Points List
This Agreement, when executed by an authorized representative of the CLIENT and authorized representatives of
SIEMENS, constitutes the entire, complete and exclusive agreement between the Parties relative to the project scope
stated in Exhibit A This Agreement supersedes all prior and contemporaneous negotiations, statements, representations,
agreements, letters of intent, awards, or proposals, either written or oral relative to the same, and may be modified only by
a written instrument signed by both Parties.
COMPENSATION/TERMS OF PAYMENT:
As full consideration for the performance of the Work and Services set forth in Exhibit A, and for the Performance Assurance
set forth in Exhibit C, the CLIENT shall pay SIEMENS in such manner and amounts as agreed to in Exhibit B
Agreed for City of Apache Junction
(Signature) by'
Print Name and Title
(Signature) by
Print Name and Title.
Agreed for Siemens Industry, Inc.
(Signature) by
Print Name and Title
(Signature) by
Print Name and Title
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PERFORMANCE CONTRACTING AGREEMENT
Article 2
Glossary
The following terms shall for all purposes have the meanings stated herein, unless the context otherwise specifies or
requires, or unless otherwise defined in the Agreement
"Acceptance"means the CLIENT has signed,or is deemed to have signed, a Certificate of Substantial Completion
"Acceptance Date"means the date on which the CLIENT signs or is deemed to have signed a Certificate of Substantial
Completion
"Annual Performance Assurance Report"means the document prepared by SIEMENS and submitted to the CLIENT as
part of the Performance Assurance Service Program,which identifies the Savings achieved for the applicable Annual Period
"Annual Period"means a twelve(12) month period beginning on the Guarantee Date or on any anniversary date thereof
"Annual Realized Savings"means the actual Savings achieved by the CLIENT during an Annual Period, calculated as the
sum of the Measured &Verified Savings plus the Stipulated Savings
"Applicable Law" means laws, ordinances, codes, rules and regulations applicable to the Work and in effect on the
Effective Contract Date
"Baseline"means the measurements of Facility energy usage taken prior to the Effective Contract Date, and the Facility
operating practices in effect prior to the Effective Contract Date, as set forth in the Performance Assurance, Exhibit C
"Baseline Period" means the period of time from which data is provided to SIEMENS to derive the Baseline
measurements. The Baseline Period is set forth in the Performance Assurance, Exhibit C
"BTU"means a British Thermal Unit and is a unit of thermal energy.
"Capital Off-Set Savings" means a sub-category of Operational Savings where Savings will result in a cost effective
upgrade to the Facility to address one or more of the following issues potential future increased costs, comfort, code non-
compliance, usage requirements, user needs and/or expectations
"Certificate of Substantial Completion" means the document indicating that the Work, or a designated portion of the
Work, is Substantially Complete in accordance with the Agreement.
"CLIENT Representative" means the person identified to SIEMENS by the CLIENT as the person authorized to make
decisions on behalf of the CLIENT as set forth in Section 6 1(a) hereof
"Construction Period"means the period between the Effective Contract Date and the first day of the month following the
date of Substantial Completion.
"Construction Period Savings"means the actual accumulated Measured & Verified Savings plus the Stipulated Savings
achieved from the Effective Contract Date until the Guarantee Date
"Contracted Baseline" means the post-FIM-implementation Facility operating profile based on parameters described in
Exhibit C, which the CLIENT shall maintain throughout the Performance Guarantee Period and are relied upon by SIEMENS
for the calculation of Guaranteed Savings as provided in the Performance Assurance, Exhibit C. The Contracted Baseline
must also include stipulated hours of operation and plug-loads for all Facilities, and must include stipulated blended, or non-
blended, utility rates
"Deferred Maintenance"means a sub-category of Operational Savings where Savings result from a reduction of current or
potential future repair and maintenance costs due to certain work being performed hereunder where such work had been
previously postponed
"Deliverables"shall mean collectively, (a)any Equipment and any Software Product deliverable to CLIENT from SIEMENS
under or in connection with the Work, and(b)any Work Product Deliverables
"Effective Contract Date"is the date appearing at the top of this Agreement, unless specifically indicated otherwise
"Energy Conservation Measure"or "ECM"means the SIEMENS' Products and/or other third party equipment, devices,
materials and/or software as installed by SIEMENS at the Facilities, or as repaired or replaced by SIEMENS or the CLIENT
hereunder,for the purpose of improving the efficiency of utility consumption.
"Equipment"means the installed physical equipment to be provided by SIEMENS as described in the Scope of Work and
Services, Exhibit A
"Escalation Rate"means an annual percentage increase to be applied to the previous year's energy savings, operational
savings and service pricing, beginning and occurring on dates outlined in the Performance Assurance, Exhibit C A different
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PERFORMANCE CONTRACTING AGREEMENT
Escalation Rate may be applied to differing Savings calculations and/or payment schedules depending on the percentage
agreed upon by the Parties
"Facility"or"Facilities"means the building(s)or structure(s)where Work will be installed or implemented
"Facility Improvement Measures"or "FIMs"means the (i) Instruments, know-how and Intellectual Property, including but
not limited to methods and techniques for energy conservation, owned or licensed by SIEMENS and employed by SIEMENS
to perform the Work and Services under this Agreement, and, (ii) the installation of Equipment and Software Products with
the intent of generating net savings or efficiencies at or in connection with the operation of the Facilities A FIM may include
one or multiple ECMs as well as any non-conservation-related activities, means or methods
"FEMP"means the Federal Energy Management Program managed by the United States Department of Energy.
"FEMP Guidelines"means the FEMP M&V Guidelines v 3 0 published by FEMP as M&V Guidelines, Measurement and
Verification for Federal Energy Management Projects
"Guarantee Date"means the first day of the month following the date on which the CLIENT executes the final Certificate of
Substantial Completion, thus indicating that the Construction Period is complete
"Guaranteed Annual Savings" are the Guaranteed Measured & Verified Savings plus the Stipulated Savings that
SIEMENS guarantees will be achieved in an Annual Period of the Performance Guarantee Period
"Guaranteed Measured& Verified Savings"means the Measured & Verified Savings that SIEMENS guarantees will be
achieved, as described in the Performance Assurance, Exhibit C
"Guaranteed Savings"means the amount of Savings that SIEMENS guarantees will be achieved at the Facility during the
Performance Guarantee Period as identified in the Performance Assurance, Exhibit C as subject to the limitation identified in
Section 4 8
"Hazardous Materials"refers to the definition found in Section 11 1
"Instruments" means all know-how, tools and related documentation owned or licensed by SIEMENS and used by
SIEMENS to install or commission Equipment and Software Products for operation at the Facility, including but not limited to
tools for installing any Software Products in Equipment, performing diagnostics on Equipment as installed in the Facility as
well as any reports, notes, calculations, data, drawings, estimates, specifications, manuals, documents, all computer
programs, codes and computerized materials prepared by or for SIEMENS and used by SIEMENS to provide an ECM or a
FIM Instruments excludes Work Product Deliverables
"Intellectual Property Rights" or"Intellectual Property"means all trade secrets, patents and patent applications, trade
marks (whether registered or unregistered and including any goodwill acquired in such trade marks), services marks, trade
names, internet domain names, copyrights (including rights in computer software), moral rights, database rights, design
rights, rights in know-how, rights in inventions (whether patentable or not) including, but not limited to, any and all renewals
or extensions thereof, and all other proprietary rights (whether registered or unregistered, and any application for the
foregoing), and all other equivalent or similar rights which may subsist anywhere in the world, including, but not limited to,
any and all renewals or extensions thereof.
"IPMVP" means the International Performance Measurement and Verification Protocol, Volume 1, EVO 10000-1 2007 as
prepared by the Efficiency Valuation Organization
"kW"and"kWh"means kilowatt and kilowatt hour, respectively
"Maintenance Services Program" or "MSP" means the Services performed by SIEMENS to maintain the Equipment in
good working order. The MSP may also contain Services unrelated to the maintenance of the Equipment If applicable, the
MSP is more fully described in the Scope of Work and Services, Exhibit A
"Material Change"means a measurable deviation in the Contracted Baseline such that there is an adverse impact on the
Annual Realized Savings which results or will result in a Savings Shortfall
"Measured& Venfied Savings"means those Savings that can be calculated and ascertained by the methodology set forth
in the Performance Assurance, Exhibit C
"OH"refers to the definition found in Section 11 1
"Operational Savings" means Savings derived from reduced operational expenses, including but not limited to, Deferred
Maintenance, or Capital Off-Set Savings Operational Savings can only be expressed in monetary value and are Stipulated
Savings
"Parties" means the CLIENT and SIEMENS
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PERFORMANCE CONTRACTING AGREEMENT
"Performance Assurance" is the process of ascertaining whether the FIMs are performing at the level necessary to
achieve the Guaranteed Savings.
"Performance Assurance Services Program"or "PASP" means the Services required to monitor the operation of the
FIMs so that SIEMENS can provide the Annual Performance Assurance Report detailing the Annual Realized Savings and
comparing the same to the Annual Guaranteed Savings based upon the calculations agreed to by the Parties in the
Performance Assurance, Exhibit C. The Services provided under the PASP are described in the Scope of Work and
Services, Exhibit A
"Performance Guarantee"means the guarantee that SIEMENS makes to the CLIENT which is reconciled and confirmed
through the Performance Assurance process set forth in the Performance Assurance, Exhibit C
"Performance Guarantee Penod"means the timeframe from the Guarantee Date to the last day of the final Annual Period
as described in Table 1 1 of the Performance Assurance, Exhibit C, or the period from the Guarantee Date until the
termination of this Agreement,whichever occurs earlier.
"Permitted Users"means the CLIENT, its employees and agents
"Savings" means the Parties' intended result from implementing all FIMs Savings can be derived from reductions in
energy or utility consumption, reductions in operating expenses, a changed utility rate classification or a combination thereof
The Savings that are achieved from reduced energy or utility consumption are converted to a dollar figure based upon the
calculation in Article 4 1.1 and as detailed in the Performance Assurance, Exhibit C When converted to a dollar figure,these
Savings become energy cost savings Operational Savings are only expressed in a dollar figure
"Savings Shortfall" means the Annual Realized Savings less the Guaranteed Annual Savings for the Annual Period
resulting in an amount less than zero
"Services"means those services to be provided by SIEMENS as described in the Scope of Work and Services, Exhibit A.
"SIEMENS Pre-existing Intellectual Property"means any Intellectual Property (i) that has been conceived or developed by
an employee or subcontractor of SIEMENS before SIEMENS performs any Work or Services under this Agreement, (ii)that is
conceived or developed by such employee or subcontractor at any time wholly independently of SIEMENS performing the Work
under this Agreement, or, (iii) if developed while performing the Work under this Agreement, where the development of
Intellectual Property for the benefit of the CLIENT is not expressly identified as a FIM or part of a FIM SIEMENS Pre-existing
Property is included in all reports, notes, calculations, data, drawings, estimates, specifications, manuals, documents, all
computer programs, codes and computerized materials prepared by or for SIEMENS
"SIEMENS Product" means a product, including Software Product and/or Equipment, offered for sale or license by
SIEMENS or its affiliates or subsidiaries and developed prior to performing the Work or SIEMENS rendering services in
connection with this Agreement A SIEMENS Product also includes improvements or modifications to any Equipment and
any Software Product developed by SIEMENS or developed as part of the Work, including any SIEMENS Product that is
configured or modified for operation at a site specified by the CLIENT Any information that is provided by the CLIENT and
incorporated into a SIEMENS Product is not, by itself, a SIEMENS Product A compilation of such information and the
product of such compilation, however, is a SIEMENS Product.
"Software Product" means any software that is owned or licensed by SIEMENS or its affiliates and that is either separately
deliverable for use in the Equipment or for use in a computer system owned by the CLIENT or delivered as firmware
embedded in the Equipment
"Stipulated Savings"are a sub-category of Guaranteed Savings that do not require post-FIM implementation measurement
and verification because they are agreed upon by the Parties based upon representations made to SIEMENS by the CLIENT
and through the application of generally accepted analytical formulae. As such, Stipulated Savings are agreed upon in
advance by the Parties and cannot be changed When used as a methodology for representing a FIM's energy savings,
such methodology is not recognized as a measurement and verification methodology under IPMVP Therefore, where the
IPMVP measurement methodologies are required, a methodology other than Stipulated Savings must be used to calculate
energy savings
"Substantial Completion" or "Substantially Complete" means the Work, or any identifiable portion thereof, is
sufficiently complete, in accordance with the provisions of this Agreement relating to the Scope of the Work and Services,
Exhibit A, such that the CLIENT will be able to realize from such Work substantially all of the practical benefits intended to
be gained therefrom, or otherwise employ the Work or the FIMs for their intended purposes To the extent that the Work
requires multiple Acceptances, the Work's final Substantial Completion date shall determine the Guarantee Date
"Therm"is a measure of energy equal to 100,000 BTUs
Page 6 of 17
Agreement PCA-100 PUBLIC version 2011 r
p
PERFORMANCE CONTRACTING AGREEMENT
"Total Guaranteed Savings" means the sum of the Savings that are guaranteed for all Annual Periods during the
Performance Guarantee Period (inclusive of the Construction Period, if applicable). The Total Guaranteed Savings are
reflected in Tables 1.1 and 1 2 in the Performance Assurance,Exhibit C
"Work"means collective labor, Equipment and services comprising the FIMs to be performed by SIEMENS, as described in
the Scope of Work and Services, Exhibit A
"Work Product Deliverable"means the tangible form of a report or drawing specifically developed for, commissioned by
and deliverable to the CLIENT in connection with the Work to be performed by SIEMENS under this Agreement.
.ft, Article 3
General
3 1 The Parties hereto acknowledge and agree that this Agreement has been negotiated at arm's length and among the
Parties equally sophisticated and knowledgeable as to the subject matter of this Agreement Each party has conferred, or
has had the opportunity to confer,with their respective legal counsel Accordingly, in the event any claim is made relating to
any conflict, omission, or ambiguity in this Agreement, no presumption, burden of proof, or persuasion shall be implied by
virtue of the fact that this Agreement was drafted by or at the request of a particular party or its legal counsel
3 2 The CLIENT hereby engages and SIEMENS hereby accepts the engagement to perform and to provide the Work and
Services set forth in Exhibit A in accordance with the terms and conditions of this Agreement
3 3 SIEMENS shall perform the Work as an independent contractor with exclusive control of the manner and means of
performing the Work in accordance with the requirements of this Agreement SIEMENS has no authority to act or make any
agreements or representations on behalf of the CLIENT This Agreement is not intended, and shall not be construed to
create, between the CLIENT and SIEMENS, the relationship of principal and agent,joint-venturers, co-partners or any other
such relationship, the existence of which is hereby expressly denied No employee or agent of SIEMENS shall be, or shall be
deemed to be, an employee or agent of the CLIENT
3 4 SIEMENS represents, warrants and covenants to the CLIENT that.
(a) It has all requisite corporate power to enter into this Agreement, and that its execution hereof has been
duly authorized and does not and will not constitute a breach or violation of any of SIEMENS's organizational
documents, any Applicable Law, or any agreements with third parties,
(b) It has done and will continue to do all things necessary to preserve and keep in full force and effect its
existence and the Agreement,
(c) This Agreement is the legal, valid and binding obligation of SIEMENS, in accordance with its terms, and
all requirements have been met and procedures have been followed by SIEMENS to ensure the enforceability
of the Agreement;
(d) To SIEMENS's best knowledge, there is no pending or threatened, suit, action, litigation or proceeding
against or affecting SIEMENS that affects the validity or enforceability of this Agreement, and,
(e) It is duly authorized to do business in all locations where the Work and Services are to be performed
3 5 The CLIENT represents,warrants and covenants to SIEMENS that
(a) It has all requisite corporate power and/or statutory authority to enter into this Agreement, and that its
execution hereof has been duly authorized and does not and will not constitute a breach or violation of any of
the CLIENT's organizational documents, any Applicable Law, or any agreements with third parties;
(b) It has done and will continue to do all things necessary to preserve and keep in full force and effect its
existence and the Agreement;
(c) This Agreement is the legal, valid and binding obligation of the CLIENT, in accordance with its terms,
and all requirements have been met and procedures have been followed by the CLIENT to ensure the
enforceability of the Agreement;
(d) To the CLIENT's best knowledge, there is no pending or threatened, suit,action, litigation or proceeding
against or affecting the CLIENT that affects the validity or enforceability of this Agreement; and,
(e) The CLIENT has consulted with its legal counsel and is relying on the advice of its counsel concerning
all legal issues related to this Agreement,and is not relying on SIEMENS in this regard
Article 4
Performance Guarantee
4 1 The Annual Realized Savings generated during each Annual Period will be no less than the Guaranteed Annual Savings
as shown in Tables 1 1 and 1 2 of the Performance Assurance, Exhibit C, subject to the limits in Section 4 8 The
measurement and verification calculation methodology for determining the Savings is set forth in the Performance
Assurance, Exhibit C
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PERFORMANCE CONTRACTING AGREEMENT
4 1 1 General Except as otherwise provided, energy savings will be calculated for each month of each
Annual Period as the product of(a) "units of energy saved" (kWh, Therms, GJ, etc) multiplied by (b) "cost of
energy"
(a) Units of energy saved are calculated by 1) assuming the Contracted Baseline has been maintained
per Section 4.3 below, and 2)subtracting the then current period measured units of energy consumed
from the Baseline units of energy defined in Article 5 of Exhibit C
(b) Costs of energy are defined in Article 6 of Exhibit C-Utility Rate Structures and Escalation Rates
4 2 Any future Escalation Rates to be applied to utility, energy or other costs are set forth in Exhibit C. SIEMENS and the
CLIENT agree that the Baseline data set forth in Exhibit C is a full and accurate reflection of the existing Facility, equipment,
operation, business use and energy usage, and that such Baseline data will be the basis on which all future energy use will .-.
be compared in order to determine the Annual Realized Savings
4 3 SIEMENS and the CLIENT agree that the Contracted Baseline fully described in Exhibit C will represent the new
operating and/or equipment profile of the Facility resulting from the FIM implementation The Performance Guarantee is
dependent upon and is subject to the express condition that the CLIENT operates and maintains its Facilities within the
Contracted Baseline parameters, as may be adjusted in accordance with the terms herein, during the entire term of the
Performance Guarantee Period.
4 4 The CLIENT agrees to notify SIEMENS prior to or within thirty(30)days of CLIENT's knowledge of any Material Change
4 5 Within thirty (30) days of notice of a Material Change, SIEMENS's discovery of a Material Change and with prompt
notice to CLIENT, SIEMENS will either:
(a) Require an adjustment to the Performance Assurance and the Performance Guarantee as a result of
the Material Change; or,
(b) Where a commercially reasonable adjustment to the Performance Guarantee is unavailable, terminate
both the Performance Assurance and the Performance Guarantee
4 6 A Performance Guarantee Period savings reconciliation as identified in Section 4.1 will be performed at the end of each
Annual Period as follows'
(a) Within ninety(90) days of the Guarantee Date, the Construction Period Savings shall be reconciled and
applied to the calculation of the first Annual Period's Annual Realized Savings.
(b) At the conclusion of each Annual Period, SIEMENS will calculate the Annual Realized Savings and
compare the calculated amount to the applicable Guaranteed Annual Savings amount.
(c) Where the Annual Realized Savings are less than the Guaranteed Annual Savings, a Savings
Shortfall shall be recorded for the applicable Annual Period.
(d) A Savings Shortfall shall be paid by SIEMENS within sixty(60)days following the CLIENT's acceptance
of the reconciliation and once paid SIEMENS shall have fulfilled its obligations under the Performance
Guarantee for the applicable Annual Period
4 6 1 As the mutual goal of the Parties is to maximize Savings, if SIEMENS can correct a Savings Shortfall
through an operational improvement at no expense or material inconvenience to the CLIENT and without future
operational expenses, and the CLIENT declines to allow such operational improvement, then any future
Savings Shortfall that the improvement would have corrected will be negated by deeming the value of the
Savings Shortfall as Savings achieved and adding the amount of same to the Annual Realized Savings .-.
calculations for each Annual Period thereafter
4 7 The Performance Guarantee is dependent upon and is subject to the express condition that the CLIENT maintains the
PASP during the entire Performance Guarantee Period If the CLIENT fails to maintain, breaches, cancels or otherwise
causes the termination of the PASP then; (a) The Performance Guarantee shall terminate immediately and be void and of
no force or effect; or, (b) Where termination of the Performance Guarantee acts to render the Agreement in violation of
Applicable Law, all Guaranteed Savings thereafter shall be determined to have been achieved and SIEMENS shall have
been deemed to have met its Performance Guarantee obligations under this Agreement for each and every Annual Period
thereafter without the obligation to provide the CLIENT, or any third-party as the case may be, with any further Annual
Performance Assurance Reports
4.8 The payments and credits based on Savings Shortfalls, if any, are the sole remedy of the CLIENT under this
Performance Guarantee ANY PAYMENTS MADE OR TO BE MADE TO THE CLIENT UNDER THE TERMS OF THIS
PERFORMANCE GUARANTEE SHALL NOT EXCEED THE PAYMENTS ACTUALLY MADE BY CLIENT TO EITHER
SIEMENS AND/OR A THIRD-PARTY (IN THE EVENT THAT THE CLIENT HAS FINANCED THE TRANSACTION) FOR
THE AGGREGATE OF THE PRICE, AS DEFINED IN EXHIBIT B, ARTICLE 1 1, THE PASP PAYMENTS, THE MSP
PAYMENTS, IF ANY, AND, IF APPLICABLE, THE CLIENT'S COST OF FINANCING THE WORK The CLIENT's cost of
financing the Work is the cost of financing calculated either (a)On the date that the escrow account is funded in accordance
with Exhibit B,Article 1 2, or, (b)On the Effective Contract Date if the escrow requirement is expressly waived by SIEMENS
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4 9 The CLIENT represents that all existing equipment that is not installed by SIEMENS under this Agreement but is
deemed necessary to achieve the Performance Guarantee, is in satisfactory working condition Prior to the beginning of the
Performance Guarantee Period, SIEMENS will have inspected all such existing equipment and reported any deficiencies to
the CLIENT. To the extent that the deficiencies are not remedied by the CLIENT prior to the Guarantee Date, the adverse
affect on the ability of the Project to attain the necessary Guaranteed Savings shall be factored into the Annual Performance
Assurance Report and, if necessary, the Performance Guarantee shall be adjusted accordingly
4 10 If the Equipment or the existing equipment is altered or moved by any person (including the CLIENT) other than
SIEMENS or a person authorized by SIEMENS, the CLIENT shall immediately notify SIEMENS in writing, and SIEMENS
reserves the right to perform a reacceptance test on, or if necessary a re-commissioning of, the system at the CLIENT's
,- expense in order to determine if a Material Change has occurred
4 11 SIEMENS will have no liability or obligation to continue providing PASP Services or any Guaranteed Savings under the
Performance Guarantee in the event that the CLIENT fails to
(a) Authorize a re-acceptance test or re-commissioning that SIEMENS reasonably deems necessary in
order to determine if a Material Change has occurred,
(b) Provide access to any Facility where Work is to be performed,
(c) Service and maintain all Equipment in accordance with the manufacturers' recommendations in order to
prevent a Savings Shortfall; or,
(d) Provide SIEMENS with accurate Facility operating information as soon as such information becomes
reasonably available to the CLIENT, including energy usage and cost, executed preventive maintenance and
repair records, building or equipment additions, and occupancy levels during each Annual Period
4 12 Unless expressly contrary to Applicable Law, should the CLIENT decide to discontinue the PASP before the end of the
Performance Guarantee Period, the CLIENT will give SIEMENS thirty (30) days prior written notice and in such notice
indicate that the CLIENT has selected one of the following
(a) The CLIENT will re-invest the avoided cost of cancellation of the PASP into Facility improvements and services that
improve the overall Facility's performance and which improvements and services are implemented by SIEMENS, or,
(b) The CLIENT will pay to SIEMENS 100% of the remaining value left in the PASP Annual Period, as a liquidated
damage and not as a penalty, to compensate SIEMENS for SIEMENS's up-front costs and expenses in preparing to perform
the PASP as contracted for the Annual Period
4.13 Unless expressly contrary to Applicable Law, any disputes concerning the calculation of the Annual Realized
Savings or changes to the Contracted Baseline that are not resolved by negotiation between the Parties within thirty (30)
days of the notice of the dispute, will be resolved by a third-party professional engineering firm which is reasonably
acceptable to both SIEMENS and the CLIENT The determination of such firm will be final and binding upon CLIENT and
SIEMENS SIEMENS and the CLIENT will each be responsible for half of the fees of such firm
Article 5
Work by SIEMENS
5 1 SIEMENS will perform the Work expressly described in this Agreement and in any work release documents or change
•i. orders that are issued under this Agreement and signed by both Parties The Work performed by SIEMENS shall be
conducted in a workmanlike manner.
5 2 SIEMENS shall perform the Work during its normal hours, Monday through Friday inclusive, excluding holidays, unless
otherwise agreed herein The CLIENT shall make the Facility available so Work may proceed in an efficient manner
5 3 SIEMENS is not required to conduct safety, reacceptance or other tests, install new devices or equipment or make
modifications to any Equipment unless expressly made a part of the Work identified in the Scope of Work and Services,
Exhibit A Any CLIENT request to change the scope or the nature of the Work or Services must be in the form of a mutually
agreed change order, effective only when executed by the Parties
5 4 All Work Product Deliverables shall become the CLIENT's property upon receipt by CLIENT SIEMENS may retain file
copies of such Work Product Deliverables. If any Instruments are provided to the CLIENT under this Agreement, any such
Instruments shall remain SIEMENS property, including the Intellectual Property conceived or developed by SIEMENS in the
Instruments All SIEMENS Pre-existing Intellectual Property that may be included in the Deliverables provided to the
CLIENT under this Agreement shall also remain SIEMENS's property including the SIEMENS Pre-existing Intellectual
Property included in the Work Product Deliverables. All Work Product Deliverables and any Instruments provided to the
CLIENT are for Permitted Users' use and only for the purposes disclosed to SIEMENS. SIEMENS hereby grants the
CLIENT a royalty-free (once payments due under this Agreement are paid to SIEMENS), non-transferable, perpetual,
nonexclusive license to use any SIEMENS Pre-existing Intellectual Property solely as incorporated into the Deliverables and
SIEMENS' Intellectual Property as incorporated into any Instruments provided to the CLIENT under this Agreement Under
such license, and following agreement to be bound to such separate confidentiality provisions that may exist between the
Parties, Permitted Users shall have a right to
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(a) Use, in object code form only, the Software Products included in the Deliverables ("Software Deliverables"),
(b) Make and retain archival and emergency copies of such Software Deliverables (subject to any confidentiality
provisions)except if the Software Deliverable is embedded in the Equipment, and,
(c) Use all such Deliverables and such Instruments, provided however, the Deliverables and Instruments shall
not be used or relied upon by any parties other than Permitted Users, and such use shall be limited to the
particular project and location for which the Deliverables are provided. All Deliverables provided to the
CLIENT are for Permitted Users' use only for the purposes disclosed to SIEMENS, and the CLIENT shall not
transfer them to others or use them or permit them to be used for any extension of the Work or any other project
or purpose,without SIEMENS's express written consent ....
5 4 1 Any reuse of such Deliverables or such Instruments for other projects or locations without the written consent
of SIEMENS, or use by any party other than Permitted Users will be at Permitted Users' risk and without liability
to SIEMENS; and, the CLIENT shall indemnify, defend and hold SIEMENS harmless from any claims, losses or
damages arising therefrom
5 4 2 In consideration of such license, CLIENT agrees not to reverse engineer any Equipment or Software Product
to reconstruct or discover any source code, object code, firmware, underlying ideas, or algorithms of such
Equipment or Software Product even to the extent such restriction is allowable under Applicable Law
5 4 3 Nothing contained in this Agreement shall be interpreted or construed to convey to the CLIENT the pre-existing
Intellectual Property rights of any third party incorporated into the Deliverables CLIENT agrees to take delivery
of any Software Deliverables subject to any applicable SIEMENS or third party end-user license agreement
accompanying such Software Deliverable
5.5 SIEMENS shall be responsible for any portion of the Work performed by any subcontractor of SIEMENS. SIEMENS
shall not have any responsibility, duty or authority to direct, supervise or oversee any contractor of the CLIENT or their work
or to provide the means, methods or sequence of their work or to stop their work. SIEMENS's work and/or presence at the
Facility shall not relieve others of their responsibility to the CLIENT or to others
5 6 SIEMENS warrants that
(a) Unless otherwise agreed, all Equipment shall be new and of good quality Until one year from the date
the Equipment is installed, all Equipment manufactured by SIEMENS or bearing its nameplate will be free from
defects in material and workmanship arising from normal use and service
(b) Labor for all Work, excluding PASP or MSP Services, is warranted to be free from defects in
workmanship for one year after the Work is performed PASP Services and MSP Services are warranted to be
free from defects in workmanship for ninety(90)days after the Services are performed
5 7 Warranty Limitation*
(a) The limited warranties set forth in Section 5 6 will be void as to, and shall not apply to,any Equipment(i)
repaired, altered or improperly installed by any person other than SIEMENS or its authorized representative, (ii)
which the CLIENT or a third party subjects to unreasonable or improper use or storage, uses beyond rated
conditions, operates other than per SIEMENS's or the manufacturer's instructions, or otherwise subjects to
improper maintenance, negligence or accident, (iii) damaged because of any use of the Equipment after the
CLIENT has, or should have had, knowledge of any defect in the Equipment, or (iv) not manufactured,
fabricated and assembled by SIEMENS or not bearing SIEMENS's nameplate. However, SIEMENS assigns to
the CLIENT, without recourse, any and all assignable warranties available from any manufacturer, supplier, or
subcontractor of such Equipment
(b) Any claim under the limited warranty granted above must be made in writing to SIEMENS within thirty
(30) days after discovery of the claimed defect unless discovered directly by SIEMENS Such limited warranty
only extends to the CLIENT and not to any subsequent owner of the Equipment The CLIENT's sole and
exclusive remedy for any Equipment or Services not conforming with this limited warranty is limited to, at
SIEMENS's option (i) repair or replacement of defective components of covered Equipment, (ii) re-
performance of the defective portion of the Services, or (iii) to the extent previously paid and itemized, the
issuance of a credit or refund for the original purchase price of such defective component or portion of the
Equipment or Services
(c) SIEMENS shall not be required to repair or replace more than the component(s) of the Equipment or
the portion of the Work and Services actually found to be defective. SIEMENS's warranty liability shall not
exceed the purchase price of such item Repaired or replaced Equipment or Services will be warranted
hereunder only for the remaining portion of the original warranty period
5 8 THE EXPRESS LIMITED WARRANTIES PROVIDED ABOVE ARE IN LIEU OF AND EXCLUDE ALL OTHER
WARRANTIES, STATUTORY, EXPRESS, OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF
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MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE HEREBY EXPRESSLY DISCLAIMED.
THE LIMITED EXPRESS WARRANTIES AND REPRESENTATIONS SET FORTH IN THIS AGREEMENT MAY ONLY BE
MODIFIED OR SUPPLEMENTED IN A WRITING EXECUTED BY A DULY AUTHORIZED SIGNATORY OF EACH PARTY
5 9 SIEMENS will not be responsible for the maintenance, repair or replacement of,or Services necessitated by reason of
(a) Non-maintainable, non-replaceable or obsolete parts of the Equipment, including but not limited to.
ductwork, shell and tubes, heat exchangers, coils, unit cabinets, casings, refractory material, electrical wiring,
water and pneumatic piping, structural supports, cooling tower fill, slats and basins, etc, unless covered by the
warranty provisions herein or otherwise specifically stated herein, or
(b) The CLIENT's or a third-party's negligence, abuse, misuse, improper or inadequate repairs or
+► modifications, improper operation, lack of operator maintenance or skill, corrosion, erosion, improper or
inadequate water treatment, electrolytic action, chemical action, failure to comply with manufacturer's operating
and environmental requirements, Acts of God, or other reasons beyond SIEMENS's control Unless expressly
agreed in writing, SIEMENS is not responsible for the removal or reinstallation of replacement valves,dampers,
or waterflow and tamper switches with respect to pipes and ductwork, including vent or drain system
SIEMENS ASSUMES NO RESPONSIBILITY FOR ANY SERVICE PERFORMED ON ANY EQUIPMENT
OTHER THAN THAT PERFORMED BY SIEMENS OR ITS AGENTS
Article 6
The CLIENT's Responsibilities
6 1 The CLIENT,without cost to SIEMENS, shall
(a) Designate a contact person with authority to make decisions for the CLIENT regarding the Work and
provide SIEMENS with information sufficient to contact such person in an emergency,
(b) Coordinate the work of contractors under CLIENT's sole control so as not to disrupt the Work and
Services proceeding in an efficient manner,
(c) Provide or arrange for 24 hour, 7 day per week access and make all reasonable provisions for
SIEMENS to enter any Facility where Work is to be performed so that Work may proceed in an efficient
manner,
(d) Permit SIEMENS to control and/or operate all building controls, systems, apparatus, equipment and
machinery necessary to perform the Work,
(e) Furnish SIEMENS with blueprints, surveys, legal descriptions, waste management plans and all other
available information pertinent to the Work and any Facility where the Work is to be performed as may be
reasonably requested by SIEMENS Such plans and blueprints, along with an executed copy of this
Agreement, with its Exhibits, shall be kept and maintained in CLIENT's files for a period of fifteen (15) years
from the Effective Contract Date;
(f) Furnish SIEMENS with all approvals, permits and consents from government authorities and others as
may be required for performance of the Work, except for those SIEMENS has expressly agreed in writing to
obtain,
�"► (g) In accordance with Article 11 hereof, promptly notify SIEMENS of all known or suspected Hazardous
Materials at the Facility, of any contamination of the Facility by Oil or Hazardous Material, and of any other
conditions requiring special care or which may reasonably be expected to affect the Work, and provide
SIEMENS with any available documents describing the quantity, nature, location and extent of such materials,
contamination or conditions,
(h) Comply with Applicable Law and provide any notices required to be given to any government authorities
in connection with the Work, except such notices SIEMENS has expressly agreed in writing to give;
(i) Provide SIEMENS with legally required materials and information (including but not limited to Material
Safety Data Sheets) related to all Hazardous Materials located at any Facility where the Work is to be
performed,
(U) Furnish SIEMENS with any contingency plans, safety programs and other policies, plans or programs
related to any Facility where the Work is to be performed;
(k) Operate, service and maintain all Equipment according to the manufacturer's recommendations including
those set forth in the manufacturer's operating manuals or instructions, as well as all requirements of
Applicable Law or of authorities having jurisdiction The CLIENT shall furnish all needed servicing and parts for
said FIMs, which parts shall become part of the FIMs Such Equipment shall be operated only in the specified
operating environment, which shall be supplied by the CLIENT, including without limitation' (1) suitable
electrical service, including clean, stable, properly conditioned power, to all Equipment, (2) telephone lines,
capacity and connectivity as required by such Equipment, and (3) heat, light, air conditioning or other
environmental controls, and other utilities in accordance with the specifications for the Equipment,
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(I) Promptly notify SIEMENS of any unusual operating conditions, hours of usage, system malfunctions,
installed equipment or building alterations that may affect the Equipment or energy usage or any Services, and,
(m) If applicable, provide and pay for a dedicated voice grade dial-up phone line, or a mutually agreed
communication method, and install a terminal block, or an equivalent communication mechanism, in a mutually
agreed upon location All on-line service Equipment (excluding the phone line) will remain the property of
SIEMENS unless otherwise stated herein
6 2 Unless contrary to Applicable Law, the CLIENT acknowledges that the technical and pricing information contained in this
Agreement is confidential and proprietary to SIEMENS and agrees not to disclose it or otherwise make it available to others
without SIEMENS's express written consent.
6 3 The CLIENT acknowledges that it is now and shall at all times remain in control of the Facility. Except as expressly
provided herein, SIEMENS shall not be responsible for the adequacy of the health or safety programs or precautions related
to the CLIENT's activities or operations, the CLIENT's other contractor(s), the work of any other person or entity, or Facility
conditions SIEMENS shall not be responsible for inspecting, observing, reporting or correcting health or safety conditions or
deficiencies of the CLIENT or others at the Facility So as not to discourage SIEMENS from voluntarily addressing health or
safety issues while at the Facility, in the event SIEMENS does address such issues by making observations, reports,
suggestions or otherwise, the CLIENT shall not hold, or attempt to hold, SIEMENS liable or responsible on account thereof
Article 7
Changes and Delays
7 1 As the Work is performed, Applicable Law or conditions may change, or circumstances outside SIEMENS's reasonable
control may develop, which would require SIEMENS to expend additional costs, effort or time to complete the Work, in which
case SIEMENS will notify the CLIENT and an equitable adjustment will be made to SIEMENS's compensation and the time
for performance In the event such changes require the Work to be suspended or terminated, SIEMENS shall be
compensated for Work previously performed and for costs reasonably incurred in connection with the suspension or
termination
7 2 Either party may request additions, deletions, modifications or changes to the Work. Any such requests shall only
become effective upon execution of a written agreement by authorized representatives of both Parties
7.3 SIEMENS may, in its sole discretion, substitute alternative parts, goods or equipment in the performance of the Work,
provided that any such substitution shall be of an equal or better quality
7 4 SIEMENS shall not be responsible for loss, delay, injury, damage or failure of performance that may be caused by
circumstances beyond its control, including but not restricted to acts or omissions by the CLIENT or its employees, agents or
contractors, Acts of God,war, civil commotion, acts or omissions of government authorities, fire, theft, corrosion, flood, water
damage, lightning, freeze-ups, strikes, lockouts, differences with workmen, riots, explosions, quarantine restrictions, delays
in transportation, or shortage of vehicles, fuel, labor or materials In the event of such delay or failure, the time for
performance shall be extended by a period equal to the time lost plus a reasonable recovery period and the compensation
shall be equitably adjusted to compensate for additional costs SIEMENS incurs due to such delay If any such delay exceeds
sixty (60) days, SIEMENS may terminate this Agreement upon three (3) days notice to the CLIENT and the CLIENT shall
promptly pay SIEMENS for the allocable portion of the Work completed, for any costs and expenses of termination, and for "`
any loss or damage incurred with respect to materials, equipment, tools and machinery, including reasonable overhead and
profit
Article 8
Compensation
8 1 The aggregate amount paid by CLIENT provides for and is solely in consideration of the Scope of Work and
Services described in Exhibit A, and is detailed in Exhibit B
8 2 SIEMENS will invoice the CLIENT in accordance with the schedules set forth in Exhibit B Unless otherwise agreed
in writing, invoices are due and payable upon receipt by the CLIENT If the CLIENT disagrees with any portion of an invoice,
it shall notify SIEMENS in writing of the amount in dispute and the reason for its disagreement within 21 days of receipt of the
invoice, and shall pay the portion not in dispute.
8 3 SIEMENS may suspend or terminate the Work or Services at any time if payment is not received when due In such
event, SIEMENS shall be entitled to compensation for the Work or Services previously performed and for costs reasonably
incurred in connection with the suspension or termination
8 4 On amounts not paid within thirty(30)days of invoice date, the CLIENT shall pay interest from invoice date until payment
is received at the lesser of 12% per annum or the maximum rate allowed by law The CLIENT shall reimburse SIEMENS for
SIEMENS's costs and expenses (including reasonable attorney and witness fees) incurred for collection under this
Agreement
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8 5 Except to the extent expressly agreed herein, SIEMENS's fees do not include any taxes, excises, fees, duties or other
government charges related to the Work or Services The CLIENT shall pay such amounts or reimburse SIEMENS for any
such amounts SIEMENS pays to the extent such charges are lawfully due and payable by CLIENT and have been paid or
incurred by SIEMENS in furtherance thereof. If the CLIENT claims that the Work or Services is subject to a tax exemption or
direct payment permit, it shall provide SIEMENS with a valid exemption certificate or permit and, unless specifically
prohibited by law, shall indemnify, defend and hold SIEMENS harmless from any taxes, costs and penalties arising out of the
use or acceptance of same.
8 6 All other work or services requested by the CLIENT, including but not limited to the following, shall be separately billed or
surcharged on a time and materials basis
(a) Emergency services, if inspection does not reveal any deficiency covered by the Scope of Work and Services,
Exhibit A,
(b) Work and/or services performed at times other than during SIEMENS's normal working hours, unless otherwise
agreed to in Exhibit A, or
(c) Work and/or services performed on equipment not covered by the Scope of Work and Services, Exhibit A.
Article 9
Acceptance
9 1 When SIEMENS believes that all, or an independent, definable phase or portion, of the Work is Substantially Complete,
SIEMENS will submit a Certificate of Substantial Completion to the CLIENT which shall be subject to the following.
(a)If the CLIENT concurs that the described portion of the Work as performed is Substantially Complete, the
CLIENT will accept that Work by signing the Certificate of Substantial Completion and returning it to SIEMENS;
(b)If the CLIENT does not concur that the Work is Substantially Complete, then the CLIENT shall notify
SIEMENS within five(5) business days of any discrepancies,
(c)To the extent SIEMENS does not dispute the discrepancies raised by the CLIENT, SIEMENS shall correct
the Work to conform to the description of the Work set forth herein, and resubmit the Certificate of Substantial
Completion to the CLIENT;
(d)If SIEMENS disagrees with the discrepancies raised by the CLIENT, SIEMENS shall notify the CLIENT of a
dispute and such dispute shall be resolved in accordance with Section 9.3 herein,
(e)If the CLIENT Representative does not deliver written notice to SIEMENS within five (5) business days of
receiving the Certificate of Substantial Completion, in the mutual interests of the Project proceeding in a timely
manner, the CLIENT will be deemed to have agreed to, signed and returned the Certificate of Substantial
Completion
9.2 To the extent that this Project requires multiple Certificates of Substantial Completion, the final Certificate of Substantial
Completion shall determine the date on which the Construction Period is completed
9 3 Any disputes concerning the Substantial Completion of the Work will be resolved by submitting the issue to a third party
professional engineering firm and which is reasonably acceptable to both SIEMENS and the CLIENT The determination of
this firm with respect to completion or Substantial Completion will be final and binding upon the Parties SIEMENS and the
CLIENT shall share equally the costs or fees for such firm in connection with such dispute resolution process.
Article 10
Insurance and Allocation of Risk
10 1 SIEMENS shall maintain, at SIEMENS's expense, the following insurances while performing the Work and shall add the
CLIENT as an"Additional Insured"to each policy that is referenced in subsections(c)through and including(e) hereof*
(a) Workers'Compensation at the statutory amounts and limits as prescribed by Applicable Law
(b) Employer's Liability insurance (and, where applicable, Stop Gap extended protection endorsement)
limits of liability shall be'
• $1,000,000 per occurrence
• $1,000,000 Disease Policy
• $1,000,000 Each Employee
(c) SIEMENS shall carry, in the Occurrence Coverage Form, Comprehensive General Liability or
Commercial General Liability, insurance covering SIEMENS's operations and providing insurance for bodily
injury and property damage with limits of liability stated below and including coverage for
• Products and Completed Operations
• Contractual Liability insuring the obligations assumed by SIEMENS in this Agreement
• Broad Form Property Damage(including Completed Operations)
• Explosion, Collapse and Underground Hazards
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• Personal Injury Liability.
—Limits of liability shall be$1,000,000 per occurrence/aggregate
(d) SIEMENS shall carry Automobile Liability Insurance in the Occurrence Coverage Form covering all
owned, hired and non-owned automobiles and trucks used by or on behalf of SIEMENS providing insurance for
bodily injury liability and property damage liability for the limits of
• $1,000,000 per occurrence/aggregate
(e) SIEMENS shall carry Excess Liability Insurance in the Occurrence Coverage Form with limits of
• $5,000,000 per occurrence/aggregate
10 2 The CLIENT will either maintain at its own expense, or self-insure for the equivalent risks, property insurance written on
a builder's "all-risk" or equivalent policy form in an amount no less than the Price identified in Exhibit B, Article 1 1, plus the
value of subsequent modifications and cost of materials supplied or installed by others, on a replacement cost basis without
optional deductibles Such property insurance shall be maintained, unless otherwise provided in the Contract Documents or
otherwise agreed in writing by SIEMENS, until final payment has been made to SIEMENS or no person or entity other than
the CLIENT has an insurable interest in the property, whichever is later The policy form shall include without limitation,
insurance against the perils of fire (with extended coverage) and physical loss or damage including, without duplication of
coverage, theft, vandalism, malicious mischief, collapse, earthquake, flood, windstorm, falsework, testing and start-up,
rebuilding and debris removal including demolition occasioned by enforcement of any applicable legal requirements, and
shall cover reasonable compensation for SIEMENS's services and expenses required as result of such insured loss If the
insurance requires deductibles or retentions, the CLIENT shall pay costs not covered because of such deductibles or
retentions This insurance shall cover portions of the Work off the Facility, and also portions of the Work in transit Partial
occupancy or use shall not commence unless the insurance company providing this insurance has consented to such partial
occupancy or use by endorsement for otherwise. The CLIENT shall purchase and maintain boiler and machinery insurance
which shall specifically cover such insured objects during installation and until Acceptance by the CLIENT The insurance
required by this section shall include the interests of the CLIENT, SIEMENS, subcontractor and sub-subcontractor in the
Work SIEMENS shall be included as an additional insured on each such insurance coverage The CLIENT and SIEMENS
waive all rights against each other and any of their subcontractors, sub-subcontractors, agents and employees for damages
caused by fire or other causes of loss to the extent covered by the insurance required by this section and for any other
property insurance applicable to the Work, except such rights as they have to proceeds of such insurance held by the
CLIENT as fiduciary A waiver of subrogation shall be effective as to a person or entity even though that person or entity
would otherwise have duty of indemnification, contractual or otherwise, did not pay the insurance premium directly or
indirectly, and whether or not the person or entity had an insurable interest in the property damaged Insurance certificates
shall be furnished upon request
10.3 Title and risk of loss of materials and Equipment furnished by SIEMENS shall pass to the CLIENT upon their delivery to
the Facility, and the CLIENT shall be responsible for protecting them against theft and damage
104 SIEMENS will indemnify the CLIENT from and against losses, claims, expenses and damages (including reasonable
attorney's fees) for personal injury or physical damage to property (collectively "Damages"). Such indemnification shall be
solely to the extent the Damages are caused by or arise directly from SIEMENS or its employees', consultants' or agents'
negligent acts or omissions or willful misconduct in connection with SIEMENS's performance of the Work or Services ^`
SIEMENS's obligations under this indemnity shall not extend to Damages arising out of or in any way attributable to the
negligence of the CLIENT or its agents, contractors or employees SIEMENS reserves the right to control the defense and
settlement of any claim for which SIEMENS has an obligation to indemnify hereunder UNLESS CONTRARY TO
APPLICABLE LAW, IN NO EVENT SHALL THE CLIENT OR SIEMENS BE LIABLE UNDER THIS INDEMNITY OR
OTHERWISE UNDER THIS AGREEMENT FOR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR
CONSEQUENTIAL DAMAGES, INCLUDING COMMERCIAL LOSS, LOSS OF USE, OR LOST PROFITS, HOWEVER
CAUSED, EVEN IF SIEMENS OR THE CLIENT HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
AND, IN ANY EVENT, UNLESS CONTRARY TO APPLICABLE LAW, SIEMENS'S AGGREGATE LIABILITY FOR ANY
AND ALL CLAIMS, LOSSES OR EXPENSES ARISING OUT OF THIS AGREEMENT, OR OUT OF ANY GOODS OR
SERVICES FURNISHED UNDER THIS AGREEMENT, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT
LIABILITY, AGENCY, WARRANTY, TRESPASS, INDEMNITY OR ANY OTHER THEORY OF LIABILITY, SHALL BE
LIMITED TO THE LESSER OF $1,500,000 OR THE TOTAL COMPENSATION RECEIVED BY SIEMENS FROM THE
CLIENT UNDER THIS AGREEMENT The preceding limit shall not apply to the CLIENT's remedy under the Performance
Guarantee as such is limited by Section 4.8
10 5 As to Patents and Copyrights.
(a) SIEMENS will, at its own expense, defend or at its option settle any suit or proceeding brought against
the CLIENT in so far as it is based on an allegation that any Work(including parts thereof), or use thereof for its
intended purpose, constitutes an infringement of any United States patent or copyright, if SIEMENS is promptly
provided notice and given authority, information, and assistance in a timely manner for the defense of said suit
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or proceeding SIEMENS will pay the damages and costs awarded in any suit or proceeding so defended
SIEMENS will not be responsible for any settlement of such suit or proceeding made without its prior written
consent In case the Work, or any part thereof, as a result of any suit or proceeding so defended is held to
constitute infringement or its use by the CLIENT is enjoined, SIEMENS will, at its option and its own expense,
either (i) procure for the CLIENT the right to continue using said Work, (ii) replace it with substantially
equivalent non-infringing Work,or(m) modify the Work so it becomes non-infringing.
(b) SIEMENS will have no duty or obligation to the CLIENT under Section 10 5(a) to the extent that the
Work is (i) supplied according to the CLIENT's design or instructions, wherein compliance therewith has
caused SIEMENS to deviate from its normal course of performance, (ii) modified by the CLIENT or its
contractors after delivery, or, (iii) combined by the CLIENT or its contractors with items not furnished
hereunder, and by reason of said design, instruction, modification, or combination, a suit is brought against the
CLIENT If by reason of such design, instruction, modification or combination, a suit or proceeding is brought
against SIEMENS, unless expressly prohibited by law, the CLIENT shall protect SIEMENS in the same manner
and to the same extent that SIEMENS has agreed to protect the CLIENT under the provisions of Section
10 5(a) above
(c) THIS SECTION 10 5 IS AN EXCLUSIVE STATEMENT OF ALL THE DUTIES OF THE PARTIES
RELATING TO PATENTS AND COPYRIGHTS, AND DIRECT OR CONTRIBUTORY PATENT OR
COPYRIGHT AND OF ALL THE REMEDIES OF THE CLIENT RELATING TO ANY CLAIMS, SUITS, OR
PROCEEDINGS INVOLVING PATENTS AND COPYRIGHTS. Compliance with Section 10 5 as provided
herein shall constitute fulfillment of all liabilities of the Parties under the Agreement with respect to the
intellectual property indemnification
10 6 The Parties acknowledge that the price for which SIEMENS has agreed to perform the Work and obligations under this
Agreement was calculated based upon the foregoing allocations of risk, and that each Party has expressly relied on and
would not have entered into this Agreement but for such allocations of risk
Article 11
Hazardous Materials Provisions
11 1 The Work does not include directly or indirectly performing or arranging for the detection, testing, handling, storage,
removal, treatment, transportation, disposal, monitoring, abatement or remediation of any contamination of any Facility at
which Work is performed and any soil or groundwater at the Facility by petroleum or petroleum products (collectively called
"Oil"), asbestos, PCBs or hazardous, toxic, radioactive or infectious substances, including any substances regulated under
RCRA, CERCLA or any other Applicable Law (collectively called "Hazardous Materials"), including without limitation.
ionization smoke detectors, ballasts, mercury bulb thermostats, used oil, contaminated filters, contaminated absorbents, and
refrigerant. Except as expressly disclosed pursuant to Section 11.2, the CLIENT represents and warrants that, to the best of
its knowledge following due inquiry, there are no Hazardous Materials or Oil present where the Work is to be performed.
SIEMENS will notify the CLIENT immediately if it discovers or reasonably suspects the presence of any previously
undisclosed Oil or Hazardous Material. All Services have been priced and agreed to by SIEMENS in reliance on the
.++ CLIENT's representations as set forth in this Article The discovery or reasonable suspicion of Hazardous Materials or
hazardous conditions at a Facility where SIEMENS is to perform Work, or of contamination of the Facility by Oil or
Hazardous Materials not previously disclosed pursuant to Section 11.2, shall entitle SIEMENS to suspend the Work
immediately, subject to mutual agreement of terms and conditions applicable to any further Work, or to terminate the Work
and to be paid for Work previously performed
11.2 The CLIENT warrants that, prior to the execution of the Agreement, it notified SIEMENS in writing of any and all Oil or
Hazardous Materials, to the best of its knowledge following due inquiry, known to be present, potentially present or likely to
become present at the Facility and provided a copy of any Facility safety policies and information, including but not limited to
lock-out and tag procedures, chemical hygiene plan, material safety data sheets, and other items covered or required to be
disclosed or maintained by Applicable Law
11.3 Regardless of whether Oil or Hazardous Material was disclosed pursuant to Section 11 2, the CLIENT shall be solely
responsible for properly testing, abating, encapsulating, removing, disposing, remedying or neutralizing such Oil or
Hazardous Materials, and for the costs thereof Even if an appropriate change order has been entered into pursuant to
Section 11.1, SIEMENS shall have the right to stop the Work until the Facility is free from Oil or Hazardous Materials In such
event, SIEMENS will receive an equitable extension of time to complete the Work, and compensation for delays caused by
Oil or Hazardous Materials remediation. In no event shall SIEMENS be required or construed to take title, ownership or
responsibility for such Oil or Hazardous Materials The CLIENT shall sign any required waste manifests in conformance with
all government regulations, listing the CLIENT as the generator of the waste If someone other than the CLIENT is the
generator of the waste, the CLIENT shall arrange for such other person to sign such manifests
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Agreement PCA-1 00 PUBLIC version 2011r
PERFORMANCE CONTRACTING AGREEMENT
11.4 Except where expressly prohibited by Applicable Law, for separate consideration of$10 and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the CLIENT shall indemnify, defend and hold
SIEMENS harmless from and against any damages, losses, costs, liabilities or expenses (including attorneys' fees) arising
out of any Oil or Hazardous Materials or from the CLIENT's breach of, or failure to perform its obligations under this Article
11 5 For purposes of this Article 11, in the context of the phrase "to the best of its knowledge following due inquiry",
"knowledge" means actual awareness of the facts by the CLIENT's directors, officers, employees or agents, or the presence
of relevant information contained in the CLIENT's books or records, and, "due inquiry" means inquiry of those persons under
the CLIENT's control who should have knowledge of the subject matter of such inquiry
Article 12
Miscellaneous Provisions
12 1 Notices between the Parties shall be in writing and shall be hand-delivered or sent by certified mail, express courier, or
acknowledged telefax properly addressed to the appropriate party Any such notice shall be deemed to have been received
when delivered in-person or when sent by telefax, or five (5) business days subsequent to deposit in the U S mails, or one
(1)day after deposit with express courier
12 2 Neither the CLIENT nor SIEMENS shall assign or transfer any rights or obligations under this Agreement, except that
either party may assign this Agreement to its affiliates and SIEMENS may use subcontractors in the performance of the
Work or Services Nothing contained in this Agreement shall be construed to give any rights or benefits to anyone other than
the CLIENT and SIEMENS without the express written consent of both Parties
12 3 This Agreement shall be governed by and construed in accordance with the laws of the state or commonwealth within
which the Facilities are located
12 4 This Agreement and all provisions of this Agreement allocating responsibility or liability between the Parties shall
survive the completion of the Work,the Services, and the termination of this Agreement
12.5 Unless contrary to Applicable Law and with the exception of disputes arising under Article 4 or Article 9, all disputes not
resolved by negotiation between the Parties shall be resolved in accordance with the Commercial Rules of the American
Arbitration Association in effect at that time, except as modified herein All disputes shall be decided by a single arbitrator A
decision shall be rendered by the arbitrator no later than nine months after the demand for arbitration is filed, and the
arbitrator shall state in writing the factual and legal basis for the award No discovery shall be permitted The arbitrator shall
issue a scheduling order that shall not be modified except by the mutual agreement of the Parties The arbitrator shall have
no authority to award, and shall not award, attorneys'fees Judgment may be entered upon the award in the highest state or
federal court having jurisdiction over the matter
12 6 SIEMENS's performance of the Work and Services is expressly conditioned on the Parties assenting to all of the terms
of this Agreement, notwithstanding any different or additional terms contained in any writing at any time submitted or to be
submitted by a Party to the other Party relating to the Work or Services, even if signed by the Parties, unless the written
statement expressly indicates that such terms supersede the terms of this Agreement
12 7 Any provision of this Agreement found to be invalid, unlawful or unenforceable by a court of law shall be ineffective to
the extent of such invalidity, and deemed severed herefrom, without invalidating the remainder of this Agreement All other
provisions hereof shall remain in full force and effect
12 8 The waiver by a party of any breach by the other party of any term, covenant or condition hereof shall not operate as a
waiver of any subsequent breach hereof No waiver shall operate or be effective unless made in writing and executed by the
party to be bound thereby.
12 9 In the event that Applicable Law or the CLIENT requires that SIEMENS procure a performance bond and/or a payment
bond, SIEMENS shall provide a performance and payment bond in the amount of $612,707.00. The performance and
payment bond will solely apply to the Work performed during the Construction Period and to the required statutory lien filing
period thereafter. The performance and payment bond will not apply to any of the obligations included in the Performance
Assurance, Exhibit C Furthermore, the CLIENT's funding source may be named as"Co-Obligee"on the performance bond
if so requested by the CLIENT.
Article 13
Maintenance Services Program
13 1 If applicable,the scope of Services provided by SIEMENS for the Maintenance Services Program is stated in Exhibit A
13 2 The CLIENT represents that all equipment not installed by SIEMENS under this Agreement and subject to a MSP is in
satisfactory working condition SIEMENS will have inspected all such equipment within the first thirty (30) days of MSP
commencement or no later than the first scheduled inspection. Testing and inspection will not be deemed to be complete
until all such equipment has been so tested and inspected
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Agreement PCA-100 PUBLIC version 2011r
PERFORMANCE CONTRACTING AGREEMENT
13 3 If the equipment is altered or moved by any person, including the CLIENT, other than SIEMENS or a person authorized
by SIEMENS, the CLIENT shall immediately notify SIEMENS in writing, and SIEMENS reserves the right to perform a
reacceptance test on, or if necessary a re-commissioning of, the system at the CLIENT's expense
13 4 If SIEMENS reasonably determines as a result of such inspection and/or testing that any equipment requires repair or
replacement, the CLIENT will be so notified and shall take corrective action within thirty(30) days, or such equipment shall
be removed from coverage hereunder without further action by the Parties. SIEMENS is not liable or responsible for the
continued testing, maintenance, repair, replacement or operating capabilities of any portion of the equipment until it has been
inspected and/or tested and has been, if necessary, restored to an acceptable initial condition at the CLIENT's sole expense
Any services provided by SIEMENS in the course of such restoration will be separately charged on a time and materials
basis, and not included in fees paid hereunder If individual items of equipment cannot, in SIEMENS's sole determination, be
properly repaired or replaced due to age, obsolescence, lack of availability of refrigerant gas, halon gas, necessary parts,
materials, compatibility or otherwise, or as a result of excessive wear or deterioration, SIEMENS may, within ten (10)days of
such inspection, give written notice that it is withdrawing such items from coverage under the MSP and adjust the MSP
payments due hereunder accordingly
13.5 If the removal of equipment from coverage would compromise or impair the integrity of the Work, Services or
compliance with law of any system, then SIEMENS will provide a written statement thereof for execution by the CLIENT The
CLIENT's failure to execute such statement within ten (10) days will void the MSP and release SIEMENS from any further
obligations with respect to the MSP
13 6 If the MSP scope of Services provides for equipment maintenance, repairs and/or replacements of equipment by
SIEMENS, those Services are limited to restoring the proper working condition of such equipment SIEMENS will not be
obligated to provide replacement equipment that represents significant capital improvement compared to the original
Exchanged components become the property of SIEMENS, except Hazardous Materials, which under all circumstances
remain the property and responsibility of the CLIENT
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Agreement PCA-100 PUBLIC version 2011r
Exhibit A- Scope of Work and Services
City of Apache Junction
Article 1: Scope of Work
1 1 General Description of Scope of Work. Except as otherwise expressly provided
herein, SIEMENS shall provide each and every item of cost and expense
necessary for a turn-key Project, including installation, start-up and commissioning,
of the FIMs identified in Section 1 2 below
1.2 Specific Elements The Work shall include the following:
1 2 1 Lighting Upgrades
Facilities Included.
• Animal Control, 725 East Baseline Rd
• City Hall Complex, 300 East Superstition Blvd
• Information Technology, 1001 North Idaho Rd
• Library, 1177 North Idaho Rd
• Multi-Generational Center, 1035 North Idaho Blvd
• Parks & Parks and Recreation, 1001 North Idaho Rd
• Park Ranger and Conference Center, 1001 North Idaho Rd
• Police Department, 1001 North Idaho Rd
• Public Works, 575 East Baseline Rd
Scope of Work:
• Provide lighting upgrades as listed in Exhibit D
• Fluorescent ballasts will be instant start for all areas for ease of
maintenance
• Replace tombstones as needed
• Convert existing T-8 lamps to 28W T-8 lamps
• Retrofit fixtures with T-12 lamps and magnetic ballasts with 28W T-8
lamps and electronic ballasts
• Convert incandescent lamps to compact fluorescent lamps
• Convert existing incandescent and fluorescent exit signs to light emitting
diode (LED) exit signs
• Retrofit/replace exterior metal halide fixtures with TSHO fixtures.
• Remove and dispose of existing lamps, ballasts, and other replaced
equipment
• Install motion sensors in areas without existing sensors per Exhibit D
IMPORTANT NOTE:Areas with Low Light Levels
The Work of this FIM is based on the lighting retrofits as shown in Exhibit D
• SIEMENS will meet or exceed existing light levels in all spaces
• SIEMENS will walk with the CLIENT Representative to take lighting
readings in spaces prior to implementation
• After the walk-through, spaces which are determined to have low light
levels will be flagged in the audit report (Exhibit D)
• SIEMENS provide recommendations to CLIENT for addressing light level
issues These measures will typically result in increased energy
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Siemens Industry, Inc , Building Technologies Division
Exhibit A - Scope of Work and Services v 111711
Exhibit A - Scope of Work and Services
City of Apache Junction
consumption, but may be warranted in order to bring spaces up to
functional light levels
• SIEMENS will provide pricing for the recommended additional work on a
time and material basis
• Following construction, lighting levels will be checked in another walk-
through with the CLIENT Representative
Assumptions:
• Work will be done during regular working hours, Monday through
Thursday, 7am to 6pm, or as otherwise agreed by the Parties.
Exclusions:
• Design of lighting fixture lay-outs, lighting distribution or electrical This
lighting scope is limited to lamp and/or ballast replacement and/or
addition of reflectors in existing fixtures only
• Battery back-up ballast replacement.
• Lighting retrofits in areas not covered in Exhibit D.
• Broken, missing or yellowed lenses, these can be addressed on a unit-
pricing basis during the Construction Period
• Bringing existing systems up to code
1.2.2 Water Conservation
Facilities Included.
• Animal Control, 725 East Baseline Rd
• Information Technology, 1001 North Idaho Rd
• Library, 1177 North Idaho Rd
• Multi-Generational Center, 1035 North Idaho Blvd
• Parks & Parks and Recreation, 1001 North Idaho Rd
• Park Ranger and Conference Center, 1001 North Idaho Rd
• Police Department, 1001 North Idaho Rd
• Public Works, 575 East Baseline Rd
Scope of Work
• Retrofit existing sinks, showers, urinals, and toilets as listed in Exhibit F
• SIEMENS will verify proper operation of all retrofitted fixtures
• Verify proper operation of all retrofitted fixtures
• Provide two (2) hours of on-site training to familiarize the CLIENT with
maintenance techniques
• Provide Operations and Maintenance manual that describes warranty
procedures, installed materials, and recommended maintenance
techniques
• Removal and disposal of any replaced material
Assumptions:
• Work will be done during regular working hours, Monday through
Thursday, 7am to 6pm, or as otherwise agreed by the Parties.
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Exhibit A - Scope of Work and Services v 111711
Exhibit A- Scope of Work and Services
City of Apache Junction
Exclusions:
• Fixture connections which are not secure or able to support a new fixture
once the old fixture is removed
• Differing bolt patterns between old and new fixtures.
• Wall and/or wall support(s) that need repair or replacement in order to
hang the new fixture
1 2 3 Programmable Thermostats
Facility Included: Library, 1177 North Idaho Rd
Scope of Work:
• Remove existing wall-mounted thermostats and install four(4) new 365
day programmable thermostats with occupied / unoccupied modes and
weekend temperature set back
• Thermostats shall control operating mode, and room cooling and heating
• Program the new thermostats for both cooling and heating modes
1.2.4 Replacement Roof Top Mounted Heat Pump Air Conditioning Unit
Facility Included: Parks Building, 1001 North Idaho Rd
Scope of Work:
• Furnish and install two (2) new high efficiency heat pump air conditioning
units on the roof of the Facility. Minimum efficiency of the new heat pump
air conditioning units shall be 12 0 EER
• Disconnect electrical from two (2) heat pump air conditioning units
• Demo existing roof equipment curbs and duct transitions, as required
• The nominal tonnage of the new high efficiency heat pump air
conditioning unit shall be two (2) 4 ton units The conditioning units are
as follows
Mark Manufacturer/Model Qty.
None Goettl 1
Model. H P481 F2
Serial. N/A
None Goettl 1
Model HP482E
Serial. 6292030
• Furnish and install new supply and return double wall aluminum duct
transition on each new air conditioning unit
• Furnish and install all necessary condensate drain piping and vents, etc ,
as required for functional system
• Reconnect electrical service to new air conditioning units. Provide new
disconnects, flexible conduit, and electrical conductors, all new electrical
work to be per applicable codes
• Install new heat pump air conditioning units on new roof equipment curbs
Flash roofing material around new roof equipment curbs
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Exhibit A - Scope of Work and Services v 111711
Exhibit A- Scope of Work and Services
City of Apache Junction
• Furnish and install two(2) new 365 day programmable thermostat for the
heat pumps
• Provide installation and startup
Assumptions:
• Work to be done during regular hours unless Parties agree otherwise
• Provisions for temporary power, cooling or heating are not included
Exclusions:
• No roof work is included in this scope of work. Any roof work required
must be handled separately by CLIENT
• Structural analysis regarding the installation of new units Any structural
evaluation and associated costs must be handled separately by CLIENT.
1.2.5 DDC Controls
Facility Included: Police Department, 1001 North Idaho Rd
Scope of Work.
• Provide new building energy management system and tie into Facility's
automation network
• Provide instrumentation and control schematics with controls design
submittals.
• Engineering, programming, check out, and start up.
• Startup and commissioning service for VFDs.
• Coordinate wiring connections and start up at a time to minimize
occupancy discomfort
• Provide 'As-Built' control drawings
• Installing new DDC controls for seventeen (17)water source heat pumps
• Furnish isolation valves for cooling water lines for the 17 water source
heat pumps and connect to the energy management system
• Provide wiring for the interlock between valve and compressor
._. • Furnish and install two (2)differential pressure sensors with analog inputs
for the condenser water supply and return water pressure One (1)
differential pressure sensor shall be located 1/3 of the length downstream
of the condenser water piping from the circulation pumps and the other
shall be 2/3 of the length downstream of the condenser water piping
• Furnish and install DDC controls for two (2)condenser water circulation
pumps with the following point list
o Condenser water pump start/stop status
o VFD Status
o VFD Speed Control
o Differential Pressure Transducer
o Add BACnet Interface card for ABB VFD's
• Provide, install and start-up the programming sequence to control the
VFD speed based on the water source heat pump status
• Provide, install and start-up DDC Controls for the hot water heating boiler
per the following point list
o Outside air temp
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Siemens Industry, Inc , Building Technologies Division
Exhibit A - Scope of Work and Services v 111711
Exhibit A- Scope of Work and Services
City of Apache Junction
o Boiler on/off status
• Provide, install and start-up DDC controls for the building hot water
circulation pump (s) (maybe integral with the boiler) per the following
points list.
o Pump start/stop status
• Provide, install and start-up DDC controls for the two (2) new cooling
towers in the Facility per the following points list
o Supply and return temp
o Fan start/stop status
o Fan VFD communication via communication chip
Assumptions:
• Work to be done during regular hours unless Parties agree otherwise.
• Provisions for temporary power, cooling or heating are not included
1.2.6 Replacement Closed Circuit Cooling Tower
Facility Included: Police Department, 1001 North Idaho Rd
Scope of Work:
• Replace two (2) closed circuit cooling towers. Fans shall have premium
efficiency inverter duty motors
• Disconnect electrical from the two (2) closed circuit cooling towers with
sump circulation pumps.
• The existing closed circuit cooling tower is as follows.
Mark Manufacturer/Model Qty._
None Baltimore Air Coil / 1733K 2
• Premium efficiency inverter duty electric motors (enclosed frame) shall
have efficiency levels as contained in NEMA Standards Publication MG 1-
2006, Table 12-12, for open and enclosed frames
• Install variable frequency drive on the two (2) 10 hp cooling tower fans
• Reconnect electrical service to new premium efficiency inverter duty
motor New electrical service to include new disconnects, flexible
conduit, and electrical conductors, all new electrical work to be per
applicable codes
• Provide installation and mechanical startup of same
Assumptions
• Work to be done during regular hours unless Parties agree otherwise
• Provisions for temporary power, cooling or heating are not included
Exclusions
• Repairs to existing supports and/or any additional support(s) needed to
meet structural requirements
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Exhibit A - Scope of Work and Services v 111711
Exhibit A- Scope of Work and Services
City of Apache Junction
1.2.7 Replacement Ground Mounted Split System Air Conditioning Unit
Facility Included: Public Works Building, 575 East Baseline Road
Scope of Work:
• Furnish and install one (1) new high efficiency split system air
conditioning unit The nominal tonnage of the new high efficiency split
system air conditioning units shall be one (1) 5 ton Minimum efficiency
of the new split system air conditioning units shall be 15 5 SEER.
• Disconnect electrical from one (1)ground mounted split system air
conditioning unit.
• Demo existing suction and liquid refrigerant piping
• Properly dispose of the air conditioning unit, insulation, piping, and piping
accessories
• The existing split system air conditioning units are as follows
Mark Manufacturer/Model Qty
None Carrier 1
Model 592APX060000AAAA
Sepal• 0489E39820
• Provide all necessary isolation valves, temp sensors and gauges, pipe
supports, refrigerant suction & liquid line piping, insulation, and aluminum
jacketing, etc required for functional system
• Reconnect electrical service to new air conditioning units Provide new
electrical disconnects, flexible conduit, and electrical conductors, all new
electrical work to be per applicable codes
• Provide and install programmable thermostat to control the split system
Assumptions
• Work to be done during regular hours unless Parties agree otherwise
• Provisions for temporary power, cooling or heating are not included
Exclusions
• No roof work is included in this scope of work Any required roof work
must be handled separately by CLIENT.
Article 2: Work Implementation Period
SIEMENS shall commence the Work 45 calendar days from the Effective Contract Date,
shall perform the Work diligently, and shall complete the Work no later than 160
calendar days from the day of commencement.
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Exhibit A- Scope of Work and Services v 111711
Exhibit A-Scope of Work and Services
City of Apache Junction
Article 3: Scope of Services-Performance Assurance Services Program
(PASP)
3 1 Construction Period
• Conduct Baseline data setup
• Perform pre and post measurements for
• Lighting fixtures as listed Exhibit C
• Motors and Variable Frequency Drives as listed in Exhibit C
• HVAC Replacements as listed in Exhibit C
• Conduct a kick-off meeting to review the scope of the PASP
• Present a report listing performance of each FIM compared to the
expected performance
3 2 Performance Guarantee Period
• Provide an Annual Performance Assurance Report("Report")
documenting results of actual performance compared to adjusted
Baseline performance Savings will be reconciled according to the
methodologies set forth in Exhibit C, Performance Assurance.
• Each Report will be provided within 90 days of the Guarantee Date, and
90 days of the anniversary of the Guarantee Date for subsequent Annual
Periods.
Article 4: Scope of Services-Maintenance Services Program
CLIENT has elected to self-implement maintenance. Therefore SIEMENS shall not
perform any on-going maintenance services, although the Parties may negotiate a
separate agreement for such services at a later date CLIENT agrees that it will
maintain the equipment per manufacturer specifications and that it will operate the
Equipment in accordance with the Contracted Baseline described in Article 7 of Exhibit
C. If CLIENT fails to properly maintain or operate the Equipment, SIEMENS shall have
the right to modify the Performance Guarantee pursuant to Article 4 of the Agreement.
By signing below, this Exhibit A is attached to and made a part of the Agreement
between SIEMENS and the CLIENT
CLIENT. City of Apache Junction SIEMENS: Siemens Industry,Inc.
Signature Signature
Printed Name. Printed Name
Title Title
Date Date
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Exhibit A- Scope of Work and Services v 111711
Exhibit B— Payment Schedules
City of Apache Junction
Article 1: Payment for Scope of Work
1 1 Price: As full consideration of the Work as described in Exhibit A, Article 1* Scope of
Work, the CLIENT shall pay to SIEMENS$612,707 00(plus taxes, if applicable)
1 2 Escrow: The CLIENT has agreed to deposit the Price into an Escrow Account at a
financial institution satisfactory to both the CLIENT and SIEMENS All expenses to
establish the Escrow Account shall be the complete responsibility of the CLIENT and the
... CLIENT will receive all interest earnings from the Escrow Account SIEMENS will submit
periodic invoices to the CLIENT based on the Payment Schedule in Table B 1 below
The CLIENT shall be responsible for submitting the necessary documents to the Escrow
Agent to allow for timely disbursements from the Escrow Account. The funding of the
Escrow Account in an amount equal to or greater than the Price stated in Article 1.1
above shall be a condition precedent to SIEMENS obligation to perform or to continue the
performance of the Work. If the Escrow Account is not funded within 60 days of the
execution of this Agreement, this Agreement shall be null and void This 60 day funding
period may be extended as mutually agreed in writing by the Parties In the event that
the Agreement becomes null and void as described in this paragraph and CLIENT has
previously authorized SIEMENS to proceed with the Work,the CLIENT shall be obligated
to reimburse SIEMENS either (i) for the Work performed to date, or (u) for the Work
specifically authorized by the CLIENT
1 3 Timely Payments. The CLIENT agrees to pay SIEMENS per Table B 1 below CLIENT
agrees to pay all invoices submitted by SIEMENS per Article 8 of the Agreement
Table B 1 —Work Payment Schedule
Project Phase Payments($) Payments(%) Schedule
Mobilization $183,813 30%
Based on Schedule of Values $428,894 70%
PROJECT TOTAL $612,707 100%
Article 2: Payment for Performance Assurance Services Program (PASP)
2 1 Price. As consideration for the Services described in Exhibit A,Article 3, the cost of three
years of PASP Services has been included in the Price identified in Section 1.1, above
PASP Services for subsequent Annual Periods may be negotiated if the Parties are
agreeable
2 2 Performance Assurance Services Program Term The term of the PASP shall
commence on the Guarantee Date and shall extend for either (a) the term of the
Performance Guarantee Period where multi-year obligations are allowed, or(b)for twelve
(12) month periods corresponding to the term of each Annual Period
2.3 Automatic Renewal. Where the PASP term is limited to an Annual Period, the PASP
shall automatically renew for successive Annual Periods beginning on the anniversary date
of Guarantee Date Either party may request to amend the PASP at the end of an Annual
Period by giving the other party at least sixty (60) days prior written notice of such
amendments and such amendment shall be mutually negotiated by the Parties and
effective upon a written amendment signed by both Parties prior to commencement of the
next Annual Period Each automatic renewal shall be and remain subject to the terms and
conditions of this Agreement SIEMENS obligations under the Performance Guarantee
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Siemens Industry, Inc , Building Technologies Division
Exhibit B - Payment Schedules v 111711
Exhibit B—Payment Schedules
City of Apache Junction
are dependent upon and subject to the express condition that the CLIENT maintains the
PASP during the entire Performance Guarantee Period
2 4 Termination See Section 4 7 of the Agreement
By signing below, this Exhibit B is attached to and made a part of the Agreement between
SIEMENS and the CLIENT
CLIENT. City of Apache Junction SIEMENS. Siemens Industry, Inc.
Signature Signature
Printed Name Printed Name.
Title Title.
Date Date.
p
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Siemens Industry, Inc., Building Technologies Division
Exhibit B - Payment Schedules v 111711
Exhibit C- Performance Assurance
City of Apache Junction
The following Articles and Tables are hereby included and made part of this Exhibit C.
Article 1: Summary of Articles and Total Guaranteed Savings
Article 1 Summary of Articles and Total Guaranteed Savings
Article 2 Measurement and Verification Options
Article 3 Performance Guarantee Period Responsibilities of CLIENT
Article 4 Measurement and Verification Plan
Article 5 Baseline Data
Article 6 Utility Rate Structures and Escalation Rates
Article 7 Contracted Baseline Data
Table 1.1 -Total Guaranteed Savings (Units)
Electric Electric Natural No. 2 Fuel
Performance Energy Power Gas Water
Period Saved Saved Saved Oil Saved Saved
(kWh) (kW) (Therms) (Gallons) (Gallons)
Annual Period 1 202,237 67 53 299,489
1 1 Only Annual Period 1 is shown as the energy/utility unit Savings will remain
constant for each Annual Period of the Performance Guarantee Period as the
CLIENT will operate the Facility in accordance with the Contracted Baseline
identified in Article 7.
Table 1.2-Total Guaranteed Savings (Cost)
Performance Energy/Utility Operational Total
Period Savings Savings Savings
Annual Period 1 $20,992 $14,021 $35,013
Annual Period 2 $22,042 $14,722 $36,764
Annual Period 3 $23,144 $15,458 $38,602
Annual Period 4 $24,301 $16,231 $40,532
Annual Period 5 $25,516 $17,043 $42,559
Annual Period 6 $26,792 $17,895 $44,687
Annual Period 7 $28,132 $18,789 $46,921
Annual Period 8 $29,538 $19,729 $49,267
Annual Period 9 $31,015 $20,715 $51,730
Annual Period 10 $32,566 $21,751 $54,317
Annual Period 11 $34,194 $22,839 $57,033
Annual Period 12 $35,904 $23,981 $59,884
Annual Period 13 $37,699 $25,180 $62,879
Annual Period 14 $39,584 $26,439 $66,023
Annual Period 15 $41,563 $27,761 $69,324
1 2 Table 1 2 shows the CLIENT'S guaranteed cost Savings for each Annual Period
that are extrapolated from the guaranteed energy/utility unit Savings shown in
Table 1 1 by multiplying the energy/utility Savings by the Baseline energy/utility
rates including the stipulated Escalation Rates found in Article 6
1 3 SIEMENS cannot and does not predict fluctuations in utility rates or the cost of
energy. Therefore, the CLIENT and SIEMENS agree that the energy/utility cost
Savings for each Annual Period will be calculated by multiplying the verified units
Page 1 of 14
Siemens Industry, Inc., Building Technologies Division
Exhibit C - Performance Assurance v.111711
Exhibit C— Performance Assurance
City of Apache Junction
of energy/utility Savings by the Annual Perod's stipulated energy/utility rate and
Escalation Rates and not the Annual Period's actual utility rate.
1 4 The determination of energy/utility Savings will follow current best practice, as
defined in the IPMVP, or the FEMP Guidelines where required, unless otherwise
agreed to by the Parties.
1.5 The Performance Guarantee does not operate to guarantee the Savings per-FIM
Rather, the calculation of Savings is based on aggregate performance of all of
the FIMs contained in the Project The projected value of such aggregate
performance is contained in Table 1 2 above representing the Total Guaranteed
Savings as monetized
Article 2: Measurement and Verification Options
2.1 Measurement and Verification Options. There are five measurement and
verification options to measure and verify energy/utility Savings. Option A -
Retrofit Isolation. Key Parameter Measurement; Option B - Retrofit Isolation All
Parameter Measurement, Option C - Whole Facility, and, Option D — Calibrated
Simulation Options A through and including D are part of the IPMVP Option E-
Stipulated is based on industry accepted engineering standards and is the Option
used for purposes of calculating Operational Savings.
Option A - Retrofit Isolation: Key Parameter Measurement Savings are determined by
field measurement of the key performance parameter(s) which define the energy use of
the FIM's affected system(s) and/or the success of the Project Measurement frequency
ranges from short-term to continuous, depending on the expected variations in the
measured parameter and the length of the reporting period Parameters not selected for
field measurement are estimated Estimates can be based on historical data,
manufacturer's specifications, or engineering judgment Documentation of the source or
justification of the estimated parameter is required The plausible savings error arising
from estimation rather than measurement is evaluated If applicable, the predetermined
schedule for data collection, evaluation, and reporting is defined in Exhibit A, Article 3-
Performance Assurance Services Program
Option B — Retrofit Isolation. All Parameter Measurement Savings are determined by
field measurement of the energy use of the FIM-affected system Measurement
frequency ranges from short-term to continuous, depending on the expected variations
in the savings and the length of the reporting period If applicable, the predetermined
schedule for data collection, evaluation, and reporting is defined in Exhibit A, Article 3-
Performance Assurance Services Program.
Option C - Whole Facility. Savings are determined by measuring energy use at the
whole Facility or sub-Facility level Continuous measurements of the entire Facility's
energy use are taken throughout the reporting period If applicable, the predetermined
schedule for data collection, evaluation, and reporting is defined in Exhibit A, Article 3-
Performance Assurance Services Program
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Exhibit C— Performance Assurance v 111711
Exhibit C— Performance Assurance
City of Apache Junction
Option D - Calibrated Simulation: Savings are determined through simulation of the
energy use of the whole Facility, or of a sub-Facility. Simulation routines are
demonstrated to adequately model actual energy performance measured in the Facility.
This Option usually requires considerable skill in calibrated simulation If applicable, the
predetermined schedule for data collection, evaluation, and reporting is defined in
Exhibit A, Article 3-Performance Assurance Services Program
Option E — Stipulated. This Option is the method of measurement and verification
.•Mk applicable to FIMS consisting either of Operational Savings or where the end use
capacity or operational efficiency, demand, energy consumption or power level, or
manufacturer's measurements, industry standard efficiencies or operating hours are
known in advance, and used in a calculation or analysis method that will stipulate the
outcome Both CLIENT and SIEMENS agree to the stipulated inputs and outcome(s) of
the analysis methodology Based on the established analytical methodology the
Savings stipulated will be achieved upon completion of the FIM and no further
measurements or calculations will be performed during the Performance Guarantee
Period If applicable, the methodology and calculations to establish Savings value will
be defined in Section 4 6 of this Exhibit C
2 2 Table 2 1 below summarizes the first Annual Period's Guaranteed Savings (See
Article 1, Tables 1.1 and 1 2) utilizing the applicable Measurement and
Verification Options as applied to the referenced FIMs valued pursuant to the
agreed upon amounts identified in Article 6 hereof
Table 2.1 —Savings for First Annual Period by Option
Energy/Utility Operational
Savings$ Savings
Measurement and Verification Options $ Total
FIM A B C D E Total E Savings
Retrofit Retrofit Whole Calibrated Stipu Energy/ Stipulated $
Isolation Isolation All Facility Simulation lated Utility
Key Parameter Savings
Parameter Measurement
Measurement
Lighting $14,398 $3,000 $17,398
Water $1,873 $1,873
HVAC $4,721 $11,021 $17,869
TOTALS $20,992 $14,021 $35,013
2 3 Table 2 2 identifies the source of Operational Savings defined and quantified by
the Parties. The Parties affirm that such amounts are Stipulated Savings for
purposes of calculating Annual Realized Savings and acknowledge that the
Guaranteed Savings identified herein have been based on CLIENT'S affirmation
OPERATIONAL SAVINGS SHALL NOT BE MEASURED OR MONITORED
DURING THE PERFORMANCE GUARANTEE PERIOD.
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Exhibit C— Performance Assurance v.111711
Exhibit C — Performance Assurance
City of Apache Junction
Table 2.2 -Source of Operational Savings
#of Annual
Account/Vendor Description Annual Cost Periods Savings
$ Are Applied
Lighting Fluorescent lamps replacement $1,000 15
savings—matenal only
Lighting Fluorescent ballasts replacement $2,000 15
savings—matenai only
Mechanical Cig Tower/HVAC Replacements $10,021 15
Mechanical Maintenance Savings $1 000 15
2 4 SIEMENS has explained to the CLIENT and the CLIENT has satisfied itself as to
how Operational Savings are incorporated into the Annual Realized Savings
2 5 The Escalation Rate applicable to the Operational Savings is 5%
Article 3 Performance Guarantee Period Responsibilities of the CLIENT
In addition to the CLIENT'S responsibilities under Article 6 of the Agreement, this Article
details the responsibilities of the CLIENT in connection with the management and
administration of the Performance Guarantee.
3 1 The CLIENT will provide a representative at each Hollywood Presbyterian Facility
to coordinate work and provide required data described below
3.2 The CLIENT will provide SIEMENS with accurate Facility operating information
as defined below and in the Contracted Baseline article of this Exhibit C during
each Annual Period, within thirty (30) days of any Material Change that may
increase or decrease energy usage
3.3 If applicable, the CLIENT will provide SIEMENS with copies of utility bills within
thirty (30) days of receipt by the CLIENT or provide access to utility vendor
information to allow SIEMENS to include a utility bill analysis in the Annual
Performance Assurance Report The utility bill analysis does not take the place
of the Measurement and Verification Plan identified in Article 4 of this Exhibit C
and is not used to measure the Project's performance.
3 4 If required for the Work, CLIENT will provide telephone/data remote access,
through SIEMENS Insight® software package or otherwise, as SIEMENS
reasonably requests All charges related to telephone/data line installation,
activation and communication services are the responsibility of the CLIENT
3 5 If required for the Work, CLIENT will provide and coordinate utility meter upgrade
for interface with SIEMENS metering and data collection All charges related for
these upgrades are the responsibility of the CLIENT
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Exhibit C— Performance Assurance v 111711
...
Exhibit C— Performance Assurance
City of Apache Junction
Article 4: Measurement and Verification Plan
The following information is applicable to this Agreement
Article 4 1 General Overview
Article 4.2 Option A- Retrofit Isolation* Key Parameter Measurement
Article 4 3 Option B- Retrofit Isolation. All Parameter Measurement
Article 4.4 Option C -Whole Facility
Article 4 5 Option D -Calibrated Simulation
Article 4.6 Option E - Stipulated-Energy/Utility Savings
4.1 General Overview—
The purpose of the Measurement and Verification (M&V) Plan is to identify
the methods, measurements, procedures and tools that will be used to verify
the Savings for each FIM which has energy/utility Savings Savings are
determined by comparing prior usage, consumption or efficiencies (defined
as the "Baseline") against the post-FIM implementation usage, consumption
or efficiencies. The Baseline usage, consumption or efficiencies are
described in this Exhibit C, Article 5 The post-FIM implementation usage,
consumption or efficiencies are defined as the Contracted Baseline and are
described in this Exhibit C, Article 7
4 2 Option A- Retrofit Isolation: Key Parameter Measurement
4 2 1 Interior/Exterior Lighting Upgrades
Description
Savings generated by the lighting retrofit FIM shall be based upon one-time
before and after measurements. Energy savings will be calculated by taking
sample wattage measurements on 1% of each fixture type before and after for
fixture types retrofitted as listed in Appendix 3 A wattage-per-fixture-type will be
assigned based on these measurements Each fixture's assigned wattage will be
used in the lighting survey to calculate energy savings Manufacturer listed
wattages will be used for fixture codes when it is not feasible to take actual
.. measurements, as in the case of fixtures with quantities of less than 50
throughout the facilities Lighting Burn Hours used in the energy calculations for
each fixture are based on agreed upon hours outlined in Article 5—Table 5 2 1
Applicable Sites
Please refer to Article 1, Section 1.2 1 and 1.2.2 of Exhibit A for a list of Facilities
included for the lighting FIM
Calculations
The following calculations determine the amount of annual electrical consumption
savings during the Performance Guarantee Period
Existing Lighting Power (kW EX]
((#Fixtures)EX x(Watts/Fixture)Ex)/(1,000 W/kW)=kW EX
Proposed Lighting Power (kW P1ZJ
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Exhibit C— Performance Assurance v 111711
Exhibit C— Performance Assurance
City of Apache Junction
((#Fixtures)PR x(Watts/Fixture)PR)/(1,000 W/kW)=kW PR
Existing Lighting Power Consumption [kWh ExJ
(kW Ex)x(Annual Burn Hours) = kWh EX
Proposed Lighting Power Consumption [kWh PRJ
(kW PR)x(Annual Burn Hours)=kWh PR
The following calculations will be performed on a Facility-by-Facility basis
Annual Lighting Power Savings. [kW LGHT]
E(kW EX)-E(kW PR)= kW LGHT
Annual Lighting Power Consumption Savings [kWh LGHT]
E(kWh Ex)—E(kWh PR)= kWh LGHT
Annual Lighting Power Savings [kW LGHT]
$ Savings = kWh LGHT*Electrical Energy Rate
Calculations Variables Index
Parameters Value Verification Method
Designated
Existing Annual Burn Hours See Table 5 2 1 (Based on interviews with
(Annual Burn Hours) facility personnel and lighting
data loggers)
Existing Fixture Power (kW EX) TBD One time pre measurement
(after Agreement execution)
Existing Qty of fixtures (#of Fixtures)Ex See Appendix 1 Designated
(Confirmed during audit)
Greater of Current Blended
Electrical Energy Rate ($/kWh) See Table 5 1 Rate or Scheduled Rate
w/escalation
Proposed Fixture Power(kW PR) TBD One time post measurement
Proposed Qty of fixtures. (#of Fixtures)PR See Appendix 1 Designated (Confirmed
during commissioning)
Measurement or Reference Tables Lighting audit spreadsheets, see Appendix 1
Specifications on Measurement Tools
The existing power(kW Ex)and post retrofit power(kW PR)will be measured
using a FLUKE model multi meter on number of fixtures listed in Appendix 1 for
each unique fixture code.
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Exhibit C— Performance Assurance v 111711
Exhibit C—Performance Assurance
City of Apache Junction
4 2 2 Water Conservation
Description
Savings generated by the water fixture FIM shall be based upon one-time before
and after measurements Water savings will be calculated by taking sample flow
measurements (gallons per flush (gpf) for toilets and urinals, gallons per minute
(gpm) for sinks and showers) on 1% of each fixture type before and after for
fixtures retrofitted. A flow rate-per-fixture-type will be assigned based on these
measurements Each fixture's assigned flow rate will be used in the water fixture
survey to calculate water and energy savings. Manufacturer's published ratings
or industry standard will be used when it is not feasible to take actual
measurements, as in the case of fixtures with quantities of less than 50
throughout the Facilities The number of people using the bathrooms, and their
frequency of use, are parameters unique to each Facility
Applicable Sites
Please refer to Article 1, Section 1 2.8 of Exhibit A for a list of Facilities included
for the water fixture FIM
Calculations
Toilet and Urinal = No of users x flushes per day per user x days per year x
Water Savings (existing —proposed flow rate) (gpf per fixture)
(gal/year)
Sink Water Savings = No. of users x no of operations per day per user x days per
(gal/year) year x minutes per operation x (existing — proposed flow rate)
(gpm per fixture)
Shower Water = No of fixtures x minutes used per fixture per day x days per
Savings (gal/year) year x (existing — proposed flow rate) (gpm per fixture)
Sink and Shower = Savings (gal/yr)x 62.5% (% hot water to sinks and showers) x
Energy Savings 8.34 lb/gal x (domestic hot water temp. —city water temp ) x 1
(therms/yr) Btu/lb°F x 1/Boiler Efficiency (80%) x 1 therm/100,000 Btu
Annual Water Cost = Water Savings (gal/yr)x (1/748) (HCF/gal)x [Water Rate
Am. Savings ($/yr) ($/HCF) + Sewer Rate ($/HCF)]
Annual Energy Cost = Energy Savings (therms/yr)x Natural Gas Rate ($/therm)
Savings ($/yr)
Calculations Variables Index
Parameters Value Verification Method
Designated
Number of users See Appendix 9 (Based on interviews with facility
personnel)
Flushes per day per user(toilets and
urinals)
Designated
Number of operations per day per user and See Appendix 9 (Based on interviews with facility
Minutes per operation (sinks) personnel andindustry
standards)
Minutes used per fixture per day(showers)
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Exhibit C— Performance Assurance v 111711
Exhibit C—Performance Assurance
City of Apache Junction
Designated
Days per year See Appendix 9 (Based on interviews with facility
personnel)
Existing Flow Rate TBD One time pre measurement
(after Agreement execution)
Existing Qty of Fixtures (No of Fixtures) See Appendix 9 Designated
(Confirmed during audit)
Water&Sewer Rate($/HCF) See Table 5 1 Greater of Current Rate or
Scheduled Rate w/escalation
Greater of Current Blended
Natural Gas Rate ($/therm) See Table 5 1 Rate or Scheduled Rate
w/escalation
Proposed Flow Rate TBD One time post measurement
Proposed Qty of fixtures (No of Fixtures) See Appendix 9 Designated (Confirmed during
commissioning)
Measurement or Reference Tables. Water audit spreadsheets, see Appendix 9
Specifications on Measurement Tools
The existing and post retrofit flow rates will be measured using a water
meter/timer/volume calibration device.
4 2 3 HVAC Upgrades
Description
For cooling savings, one-time pre- and post- implementation power and
consumption measurements will be taken on a sample size of 5% of each
representative unit size using a true RMS power meter, and/or data
loggers/controls front end, as applicable. Full load conditions will be simulated by
setting an artificially low cooling temperature Hours of operation will be as
designated in savings calculations. Energy savings will be calculated by applying
the measured sample values to the appropriate equipment using ASHRAE
Modified Weather Bin Analysis.
For heating savings on heat pump units, the designated heating efficiencies,
operating hours and savings calculations will be used to determine energy
savings
Calculations Variables Index
Refer to Exhibit C, HVAC Analysis. Cost savings are calculated by applying the
energy savings to the baseline average utility rate
Net Cost Savings = (Pre Retrofit Consumption — Post Retrofit
Consumption)x COE
Pre Retrofit Consumption = Base Year Electrical Consumption From
ASHRAE Modified Weather Bin Analysis Using Agreed Upon Hours of
Operation and Old Efficiency
Post Retrofit Consumption = New Consumption From ASHRAE Modified
Weather Bin Analysis Using Agreed Upon Hours of Operation and New
Efficiency
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Exhibit C— Performance Assurance v 111711
Exhibit C— Performance Assurance
City of Apache Junction
COE =Average cost of electricity from baseline utility data or year-to-year date
per utility rate schedule for all applicable time of use periods
4.2 4 Cooling Tower Fan VFD
Description
Savings generated by the VFD installation measure shall be based upon one-
time or short term pre-measurement and short term continuous post-
measurement of fan energy consumption (kW=kWh/hr). kW vs % cooling tower
tons curve will be created based on 1 month of short-term monitoring at 15 min
intervals and compared to the curves assumed in our calculations
Calculations
Cooling tower tonnage (tons) = 500 x Condenser water flow(gpm)x [Condenser
water supply temp (°F) - Condenser water return
temp (°F)]
Calculations Variables Index
Parameters Value Verification Method
Stipulated
Existing Annual Operating Hours See Table (Based on interviews with
(Annual Op Hours) 5 2 2 facility personnel and
energy management
system schedules)
Existing Motor Power (kW Ex) TBD One time pre
measurement
Electrical Energy Rate ($/kWh) See Table Scheduled Rate
5 1 2 w/escalation
Continuous post-
Proposed Motor Power(kW PR) TBD measurement for 1
month
..► Proposed Cooling Tower Tonnage Contine -
(tons) TBD measuremmee ntt for 1
month
Specifications on Measurement Tools
The existing power (kW EX) and post retrofit power (kW PR) will be measured
using a HOBO or equivalent data logger on a selected sampling of equipment
The proposed cooling tower tonnage will be calculated using condenser water
flow (gpm) and condenser water supply and return temperatures The condenser
water flow will be measured using a portable ultrasonic flow meter.
4 2 5 WSHP Circulation Pumps VFD
Description
Ssavings generated by the VFD installation measure shall be based upon one-
time or short term pre-measurement and short term continuous post-
measurement of pump energy consumption (kW=kWh/hr) kW vs % flow curves
Page 9 of 14
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Exhibit C— Performance Assurance v 111711
Exhibit C— Performance Assurance
City of Apache Junction
will be created based on 1 month of short-term monitoring at 15 min intervals and
compared to the curves assumed in our calculations.
Calculations
See Exhibit F, Savings Calculations
Calculations Variables Index
Parameters Value Verification Method
Stipulated
(Based on interviews with
p
Existing Annual Operating Hours
(Annual A ) See Table 5 2 2 facility personnel and energy
management system
schedules)
Existing Motor Power (kW EX) TBD One time pre measurement
Electrical Energy Rate ($/kWh) See Table 5 1 2 Scheduled Rate w/escalation
Continuous post-
Proposed Motor Power(kW P TBDR) measurement for 1 month
Proposed Pump Flow(gpm) TBD Continuous post-
measurement for 1 month
Specifications on Measurement Tools
The existing power (kW EX) and post retrofit power (kW PR) will be
measured using a HOBO or equivalent data logger on a selected sampling of
equipment
The water source heat pump circulation pump water flow will be measured
using a portable ultrasonic flow meter
4 3 Option B - Retrofit Isolation. All Parameter Measurement -- N/A
4 4 Option C -Whole Facility -- N/A
4 5 Option D—Calibrated Simulation --N/A
4.6 Option E —Stipulated -- N/A
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Exhibit C— Performance Assurance v 111711
Exhibit C— Performance Assurance
City of Apache Junction
Article 5: Baseline Data
5 1 The year(s) selected as the Baseline Period starts on January 2010 and ends on
December 2010 Table 5 1 outlines the utility consumption that occurred during
this Baseline Period. This Baseline Period's Facility utility consumption will be
used as the reference for comparing the Facility's utility consumption during the
Performance Guarantee Period in order to determine the Annual Realized
Savings.
Table 5 1 1 —Baseline Utility Consumption
Units Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec
Electric kWh 206,0 207,2 201,9 229,5 279,2 312,3 379,1 368,0 311,4 239,8 222,2 183,1
58 47 76 53 58 15 35 38 45 40 42 87
Electric kW 551 555 609 637 700 858 901 818 793 745 570 519
N Gas Therm 3352 2908 2881 2094 1860 853 327 63 166 777 600 1261
Water Gals 518,9 375,1 307,2 279,8 395,5 571,3 701,2 865,0 7121 769,7 727,2 4394
10 00 70 60 00 80 80 80 79 50 10 70
Table 5.1.2—Electric Rates
Baseline Year Blended
Facility Address Baseline Electric Rates used for
Period Dollar Savings, per kWh
Animal Control 725 Baseline Rd 1/10-12/10 $0 147
City Hall Complex 300 East Superstition Blvd 1/10-12/10 $0 099
Information 300 East Superstition Blvd 1/10-12/10 $0 114
Technology
Library 1035 North Idaho Rd 1/10-12/10 $0 097
Multi-Generational 1035 North Idaho Rd 1/10-12/10 $0 098
Center
Parks and Rec Bldgs 1001 North Idaho Rd 1/10-12/10 $0 114
(2 Modules)
Park Ranger& 1001 North Idaho Rd 1/10-12/10 $0.110
Conference Center
Police Department 1001 North Idaho Rd 1/10-12/10 $0 089
Public Works 575 Baseline Rd 1/10-12/10 $0 105
5.2 The operating practices during the Baseline Period determine the utility
consumption shown in Table 5.1. This data indicates the operating
characteristics that were in effect during the Baseline Period The Guaranteed
Savings provided under this Agreement are based on the efficiencies gained by
implementing the Work and implementing the Contracted Baseline in Article 7 of
this Exhibit C
Table 5.2.1. Designated Lighting Operating Hours
Area Type Current Hours
Classroom 500
Exterior 4380
Hallway 2080
Kitchen 2800
Library 3650
Locker room _ 1460
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Exhibit C— Performance Assurance v 111711
Exhibit C— Performance Assurance
City of Apache Junction
Mechanical room 730
Meeting room 1200
Open Office 2880
Private Office 1560
Police Dispatch 6570
Restroom 550
Storage 730
Work Area 2880 ...
Table 5 2 2• Mechanical Equipment Pre-retrofit Operating Hours
Facility Equipment Month Occupied
Run Hours
Parks& Rec Bldgs Air Source Heat Jan- Dec 7am—6pm
Pumps
Police Department Cooling tower and Jan—Dec 24/7
water source heat
pumps
Table 5 2 3• Pre-retrofit Operatin Temperatures
Month Minimum Cooling Maximum Heating
Setpoints DEG Setpoints DEG
Jan - Dec 74 deg F 68 deg F
Table 5.2.4 Pre-retrofit HVAC efficiency
Equipment Efficiency
Air source heat 10 SEER
pump
Water source heat 10 42 EER
pump
5 3 Applicable codes - Federal, State, County or Municipal codes or regulations are
applicable to the use and operation of the Facility. SIEMENS will maintain the
current level of Facility compliance relative to applicable codes unless specifically
outlined to the contrary below. Unless specifically set forth in the Scope of Work
and Services, Exhibit A, nothing herein should be construed as to require .•.
SIEMENS to provide additional work or services in the event that the current
applicable code or regulation is modified.
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Exhibit C— Performance Assurance v 111711
Exhibit C—Performance Assurance
City of Apache Junction
Article 6: Utility Rate Structures and Escalation Rates
6.1 Utility costs used for Savings calculations will be based on the utility rates and
rate escalation percentages, as provided in the table(s) below. Each escalation
rate will be applied annually to the utility rate
Table 6.1.1 Electricity
Tariff Number or Designation. E -32
Utility Name SRP
Rate Escalation. 5 % per Annual Period
Electricity
Tariff Number or Designation. E-36
Utility Name SRP
Rate Escalation 5 % per Annual Period
Table 6.1.2 Natural gas
Utility Name Southwest Gas Corporation
Tariff Number or Designation 037/G-25L
Rate Escalation 5 % per Annual Period
Table 6 1 3 Water
Utility Name Apache Junction Water Utilities CFD
Tariff Number or Designation.
Rate Escalation 5 % per Annual Period
Table 6.1.4 Water
Utility Name Arizona Water Company
Tariff Number or Designation
Rate Escalation 5 % per Annual Period
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Exhibit C— Performance Assurance v 111711
Exhibit C— Performance Assurance
City of Apache Junction
Article 7: Contracted Baseline Data
7 1 The following tables detail the Facility operating parameters that are required to
be implemented on the Guarantee Date or on such time as agreed upon by the
Parties This specific configuration of Facility operating parameters is the
Contracted Baseline and failure of the CLIENT to maintain the Contracted
Baseline may result in a Material Change which may require a modification of the
Performance Guarantee pursuant to Article 4 of the Agreement
Table 7 1 1' Mechanical Equipment Post-retrofit Operating Hours
Facility Equipment Month Occupied
Run Hours
Parks & Rec Bldgs Air Source Heat Jan - Dec 7am—6pm
Pumps
Police Department Cooling tower and Jan—Dec 24/7
water source heat
pumps
Table 7.1.2. Post-retrofit Operating Temperatures
Month Minimum Cooling Maximum Heating
Setpoints DEG Setpoints DEG
Jan - Dec 74 deg F 68 deg F
Table 7 1 3 Post-retrofit HVAC efficiency
Equipment Efficiency -
Air source heat 16 EER
pump -
This Exhibit C is attached to and made a part of the Agreement between SIEMENS and the
CLIENT BY SIGNING BELOW, THE PARTIES CONFIRM THAT THEY HAVE REVIEWED -�
THE MEASUREMENT AND VERIFICATION OPTIONS AND THEIR APPLICATION TO
CALCULATING SAVINGS UNDER THE AGREEMENT
CLIENT' City of Apache Junction SIEMENS: Siemens Industry, Inc.
Signature Signature. -
Printed Name Printed Name _
Title Title. _
Date Date
Page 14 of 14
Siemens Industry, Inc., Building Technologies Division
Exhibit C— Performance Assurance v 111711
SIEMENS
November 20, 2011
City of Apache Junction
300 E Superstition Blvd,
Apache Junction,AZ 85119
Re SIEMENS PUBLIC, INC.: TAX EXEMPT LEASE FINANCING
Siemens Public, Inc. ("Lessor")is pleased to provide this lease proposal to the City of Apache
Junction (Arizona)-(the"Lessee")for your review and consideration Please note that this
proposal is being issued by Siemens Financial Services, Inc ("Agent")on behalf of the Lessor
Upon your approval, this proposal shall constitute Lessee's application to Lessor This proposal
is subject to, among other things, Lessee being qualified to issue tax exempt obligations under
the Internal Revenue Code, as well as certain additional conditions set forth hereinafter
Lessor/Resolutions SIEMENS PUBLIC, INC., its affiliates, assigns or nominees
Note that all resolutions approving this financing should
name Siemens Public, Inc., its affiliates, assigns or nomi-
nees as the "Lessor"
Lessee. City of Apache Junction (Arizona), a qualified political subdivision
of the State of Arizona
Equipment Description. Various types of facility improvements under a performance
contract agreement with SBT designed to provide Lessee energy
savings and conservation measures
Total Equipment Cost: It is anticipated that the Total Equipment Cost will not exceed
$442,707.00
Reimbursement: If Lessee intends to be reimbursed for any advances it has made
against the Total Equipment Cost, Lessee must provide Lessor
with proof of payment acceptable to Lessor, and such reimburse-
ment must be in accordance with all laws and regulations, in-
cluding without limitation Treasury Regulation Section 1 150 2
Escrow Fund Option• At Lessee's request, Lessor will deposit the principal sum into an
Escrow Fund on behalf of the Lessee. The Escrow Fund shall be
established with an escrow agent mutually acceptable to Lessor
and Lessee and shall be used to acquire the Equipment. Lessee
shall be responsible for paying all fees and expenses associated
with the Escrow Fund
Vendor/Supplier Siemens Industry, Inc , Building Technologies division ("SBT")
Equipment Location: Within buildings owned and operated by the Lessee as more
specifically described in the related performance contract
agreement with SBT
Lease Commencement As to each item of Equipment, the date specified in the applicable
Date. Lease as the Lease Commencement Date.
Maximum Lease Term- One hundred ninety two (192) months This term includes a
twelve (12) month construction period The Maximum Lease Term
for each item of Equipment will commence on and as of the
Lease Commencement Date
Interest Rate. 4.08%
Lease Payments. Beginning twelve (12) month after the Lease Commencement
Date, Lessee will be required to make one hundred eighty (180)
equal and consecutive monthly lease payments, each in arrears
and each in an amount equal to $3,429 30 (assuming the
maximum Total Equipment Cost set forth above and assuming
the Lease Rate is not adjusted as set forth below)
Adjustments to Interest The proposed financing is based on the current (comparable)
Rate& Lease Payments. yield of the ten (10) year Swap Rate (USD) of 2 21% as reported
in the Federal Reserve Statistical Release H 15 as of November
3, 2011 (currently published at www.federalreserve.gov/releases/
h15/update) If such rate increases, the actual Interest Rate and
Lease Payment amount will be adjusted and will be fixed on the
Lease Commencement Date or escrow funding date Upon
funding, the payment will remain fixed for the duration of the
term
Prepayment. No prepayment will be allowed during the first year of the Lease.
Thereafter, the purchase option price will be at 102% of the
unpaid principal Prepayment will only be allowed on a payment
due date
Type of Lease. This will be a net lease transaction, whereby all fees and costs
for documentation, insurance, maintenance, filing, registration,
searches and taxes, relating to the purchase, lease, ownership,
possession and use of the Equipment and to the transaction,
including without limitation, issuance costs and all items of a
similar nature, will be for Lessee's account
Tax Treatment. The interest portion of the Lease Payments must be excludable
from the gross income of the Lessor for state and federal income
tax purposes
Non-Appropriation: The Lease is subject to termination by the Lessee in the event
funds for payment of the Lease are not appropriated for a given
fiscal year
Insurance. Lessee must provide evidence of physical damage and liability
insurance in an amount and from an insurance carrier satisfactory
to Lessor. Lessor must be listed on the policies as loss payee
and additional insured, as applicable, and a certificate of insur-
ance is to be provided to the Lessor
Transaction Costs. All transaction costs (including but not limited to escrow agent
fees, if applicable)shall be for the account of Lessee
2
Deinstallation Costs. In the event Lessee returns the Equipment as permitted in or
required by the Lease, Lessee shall be responsible for all return
costs, including deinstallation, packing and shipping costs
Statement of Intent. It is the intent of Lessor and Lessee that for federal, state and
local income tax purposes, the transaction contemplated hereby
will be a conditional sale or financing arrangement consisting of a
loan from the Lessor directly to the Lessee, and the Lessee
acquiring and being deemed the owner of the Equipment For in-
come tax purposes, the parties shall take no action or file any re-
turn or other document inconsistent with such intentions unless
otherwise required by U S federal, state or local tax law or di-
rected by the Internal Revenue Service or similar state authority.
Title. Title to the Equipment shall remain vested with the Lessor upon
acceptance of the Equipment, subject to Lessor's rights under the
Lease for default or non-appropriation of funds by Lessee
Grant of Security Lessor shall be granted a first priority security interest in the
Interest: Equipment, together with all accessions, attachments, replace-
ments, substitutions, modifications and additions thereto, then
existing or thereafter acquired, and all proceeds thereof (includ-
ing insurance proceeds)
Legal Opinion An opinion of Lessee's legal counsel, reasonably acceptable to
Lessor, as to, among other things, the legality, enforceability,
authority,title and execution of the Lease will be required
Opinion of Special Tax An opinion of Lessee's special tax counsel, reasonably accept-
Counsel. able to Lessor, as to the tax treatment of the interest portion of
the Lease Payments,will be required
Documentation. All lease and related documentation will be provided by Lessor
and must be satisfactory to all parties concerned
1. Master Lease Purchase Agreement
2 Leasing Schedule(s), Rider(s)and Addenda, as applicable
3 Amortization Schedule
4. Escrow Agreement
5 Acceptance Certificate/Request for Disbursement of Funds
6 Essential Use Certificate
7 Opinion(s)of Counsel as noted above
8 Resolutions
9 Officer's Certificate
10. 8038-G
11 Insurance Coverage Requirements form
12 Counter signed copy of the Performance Contract
Agreement with all exhibits
13 W-9
14 Sales and Use Tax Exemption Certificate
15 Billing Information Sheet
Lessor may, at its discretion, order UCC, judgment, tax and
similar searches against Lessee Additional documentation
and/or information may be required based upon the results of
those searches.
3
Proposal This proposal shall expire on December 7, 2011, unless prior to
Acceptance/Expiration that date Lessee acknowledges its approval of this lease
proposal by signing and returning the enclosed copy of this letter
together with the information set forth on Exhibit A to Lessor
Miscellaneous. Lessee will be responsible for obtaining all of the necessary
approvals for this transaction
The terms and conditions outlined herein are not all-inclusive and are based upon information .�.
provided to date This proposal does not represent an offer or commitment by Lessor to enter
into a lease transaction or to purchase the Equipment described in this proposal, and does not
create any obligation for Lessor A commitment to enter into the transaction described herein
may only be extended by Lessor after this transaction has been approved by all necessary credit
and other authorities and a "written commitment letter" has been issued Closing of this proposed
transaction will be subject to, among other things, there having occurred no material adverse
change in the Lessee's financial condition or business operations or in the economic and/or
regulatory conditions existing prior to the closing and, subject further, to the execution by Lessee
and Lessor, and delivery to Lessor, of all documents required by Lessor, all in form and sub-
stance acceptable to Lessor This proposal may be withdrawn or modified by Lessor at anytime
prior to a definitive written commitment letter to enter into a lease transaction with Lessee being
issued by Lessor and accepted by Lessee Lessor shall have the sole right to assign this
proposal, any commitment letter or any lease between Lessee and Lessor All rates stated here-
in are based upon current money cost, tax rates and tax law assumptions. Should any changes
occur, the rates will be adjusted accordingly
Please feel free to contact me if you have any questions, or would like to discuss this proposal in
greater detail Upon Lessor's receipt of a properly countersigned copy of this proposal letter and
the information set forth on Exhibit A hereto, the approval process shall promptly begin so that
Lessor may be in a position to finalize this transaction with Lessee Thank you for allowing us the
opportunity to present this proposal
Sincerely,
Micah Thompson
Vice President
(904)527-6023
4
PROPOSAL ACCEPTED:
We hereby approve the leasing proposal as presented in the above letter In reviewing this appli-
cation, Lessor and its Agent are hereby authorized to obtain and utilize such credit information as
may be deemed necessary and desirable by Lessor for the analysis and the processing of this
proposed transaction In addition, Lessee hereby authorizes Lessor to file, both before and/or
after the Lease is executed by Lessee, any Uniform Commercial Code financing statements (in-
cluding any amendments thereto)or similar filings with such authorities as Lessor may require
Lessee acknowledges and agrees that (i) the proposed transaction described in this
proposal is an arm's-length commercial transaction between Lessee and Lessor, (ii)
Lessor is not an advisor to, or fiduciary of, Lessee with respect to the transaction
contemplated hereby or the discussions, undertakings, and procedures leading thereto,
(iii) Lessor is not a registered Municipal Advisor and (iv) Lessee has consulted, and will
continue to consult, its own legal, financial, and other advisors (including a registered
Municipal Advisor)to the extent Lessee has deemed, or in the future deems it, appropriate
LESSEE: City of Apache Junction, Arizona
By.
Name.
Title.
Date.
5
EXHIBIT A
Lessee To Provide The Following:
Copy of Charter and By-Laws or other evidence of legal formation
Copy of last three year end audited financial statements
Copy of current operating budget
A resolution of the governing body authorizing the energy savings project and the financing of the
project(as soon as available)
Copy of recent Official Statement, if available
Draft copy of the performance contract agreement with SBT, including all exhibits (as soon as
available)
Sales and Use Tax Exemption Certificate, if applicable
Evidence of no blanket or other liens that could affect the Equipment
In addition, where reimbursement of prior expenditures is requested
Copy of Official Letter of Intent for Reimbursement
Proof of Payment(e g check copies)
(Lessee acknowledges that Lessor,in its discretion, may request additional information and documents)
Pp ACHF�I..?
yof/lpercbe Junction
Hoar a/ the Super:slitiorz AI oulzluif.s-
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Print
TO: City Manager's Office
FROM. Jerald L. Monahan, Chief of Police
DATE: December 5, 2011
Agenda Type : Work Session Agenda
Council Priority Focus Area: Public Safety
TITLE OF AGENDA ITEM:
PRESENTATION AND DISCUSSION OF PROFESSIONAL SERVICES AGREEMENT FOR VETERINARY SERVICES
ACTION REQUESTED:
Presentation and Discussion
DISCUSSION/ BACKGROUND INFORMATION:
The Animal Control Division entered a contract for veterinary services with Dr. Julia Neufeld on October 1, 2004 The original
agreement expired on September 30, 2010 Animal Control desires now to amend the original agreement by extending the
agreement term retroactively from October 1, 2010 through October 31, 2015 in an amount not to exceed $40,000 00
annually.
FISCAL IMPACT:
Budgeted Expenditure
OPTIONS/ALTERNATIVES:
RECOMMENDATION:
ATTACHMENTS:
Click to download
❑ Professional Services Agreement
THERE IS ADDITIONAL
INFORMATION ON THIS ITEM
IN THE REGULAR MEETING
SECTION UNDER ITEM 1)
Is?ACHE✓G ..
d 0 City of pache Junction
Home o/ the Siipel:c/iti0ll Mountains
gRtZpNr'
Print
TO: City Manager's Office
FROM: Jerald L. Monahan, Chief of Police
DATE: December 5, 2011
Agenda Type : Work Session Agenda
Council Priority Focus Area: Public Safety
TITLE OF AGENDA ITEM:
PRESENTATION AND DISCUSSION OF MOTOROLA COMMUNICATIONS SYSTEM LEASE AGREEMENT
ACTION REQUESTED:
Presentation and Discussion
DISCUSSION/ BACKGROUND INFORMATION:
Staff respectfully requests council approval to enter into a lease with Motorola in order to replace the existing radio consoles
within the Apache Junction Police Department's Communications Center This lease has a term of five years of which the
amount will not exceed $70,312.00. The first payment of$15,541.94 is due one year after contract execution.
FISCAL IMPACT:
Budgeted Expenditure
OPTIONS/ALTERNATIVES:
ZECOMMENDATION:
ATTACHMENTS:
Click to download
V Communications System Agreement
THERE IS ADDITIONAL
INFORMATION ON THIS ITEM
IN THE REGULAR MEETING
SECTION UNDER ITEM -
ACHt
o y0� C;ity of Apache Junction
Home of the Super:cittion :W oiirltains
4RizoN*
Print
TO: City Manager's Office
FROM. R. Joel Stern, City Attorney
DATE: December 5, 2011
Agenda Type : Work Session Agenda
Council Priority Focus Area: Additional Item Outside Scope of Identified Council Priorities
TITLE OF AGENDA ITEM:
DISCUSSION ON 2011 CHANGES TO POLITICAL SIGN LAWS.
ACTION REQUESTED:
Presentation and Discussion
DISCUSSION/ BACKGROUND INFORMATION.
The council has requested an update on the changes to political sign laws adopted by the legislature under House Bill 2500.
FISCAL IMPACT:
Budgetary Approval Not Required
OPTIONS/ALTERNATIVES:
RECOMMENDATION:
ATTACHMENTS:
Click to download
U House Bill 2500