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HomeMy WebLinkAboutOrdinance No. 16,476 (Item 5.c.)ORDINANCE NO. 16,476 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING PAYMENT IN AN AMOUNT NOT TO EXCEED THREE MILLION THREE HUNDRED FORTY-TWO THOUSAND NINE HUNDRED THIRTY-THREE AND 00/100 DOLLARS ($3,342,933.00) TO AMERESCO, INC FOR THE PURCHASE OF WATER METER AND SUB -METER GPS REPLACEMENT AND INSTALLATION SERVICES THROUGH THE PURCHASING COOPERATIVE OF AMERICA, CONTRACT #PCA OD- 365-22; MAKING OTHER PROVISIONS RELATED THERETO; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. WHEREAS, the City of Baytown is a member of the cooperative purchasing program established under Sections 271.082 and 271.083 of the Texas Local Government Code; and WHEREAS, the Purchasing Cooperative of America is such a program, allowing municipalities to purchase products and/or services in an efficient, cost effective, and competitive procurement method; and WHEREAS, the City of Baytown, in making a purchase under a contract through such cooperative purchasing program, satisfies state law requiring municipalities to seek competitive bids for the purchase of the items and services referenced herein; NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: That the City Council of the City of Baytown hereby authorizes the payment in the amount not to exceed THREE MILLION THREE HUNDRED FORTY-TWO THOUSAND NINE HUNDRED THIRTY-THREE AND 00/100 DOLLARS ($3,342,933.00) to Ameresco, Inc for the purchase of water meter and sub -meter GPS replacement and installation services through the Purchasing Cooperative of America, contract #PCA OD-365-22. Section 2: That the City Council of the City of Baytown, Texas, hereby authorizes and directs the City Manager to execute and the City Clerk to attest to the Agreement for the Replacement and Installation Services of Water Meters and Sub -Meter GPS Units. A copy of said agreement is attached hereto as Exhibit "A" and incorporated herein for all intents and purposes. Section 3: That the City Manager is hereby granted general authority to approve any change order involving a decrease or an increase in costs of FIFTY THOUSAND AND NO/100 DOLLARS ($50,000.00) or less, provided that the original contract price may not be increased by more than twenty-five percent (25%) or decreased by more than twenty-five percent (25%) without the consent of the contractor to such decrease. Section 4: This ordinance shall take effect immediately from and after its passage by the City Council of the City of Baytown. INTRODUCED, READ and PASSED by the affirmative vote of the ity Co n61 of t City of Baytown this the 28"' day of May, 2026. CH ES JOHN , ayor v mm0 ,9 m00 oh��J •,e ill om �ip ANGELA ACKSON,', it :Clerl� c � l 4 ��7. a % wl m '� >• APPROVED AS TO FO'.um°`"°`�2i'�' KRISTN HOLMES, Assistant City Attarney R:,Ordinances and Resolutions''%Ordinance Drafts\2026-05-28',Ord-Authorizing Water Meter Replacement Services with Ameresco.kh.docx 2 EXHIBIT "A" AGREEMENT FOR THE REPLACEMENT AND INSTALLATION OF WATER METERS AND SUB -METER GPS UNITS ONLY STATE OF TEXAS § COUNTY OF HARRIS § This Agreement (this "Agreement") is entered into by and between Ameresco, Inc. (hereinafter "Vendor") and the City of Baytown, a home -rule municipality located in Harris and Chambers Counties, Texas (the "City"). 1. Scope of Services/ Vendor Fees a. This Agreement authorizes the Vendor to perform only Water Meter and Gateway Installation services for Utility Services (the "Work") for and on behalf of the City as specified in the Scope of Work attached as Exhibit "A." The City and Vendor agree that the City intends to purchase certain equipment, including but not limited to water meters ("City -Provided Equipment") for installation by the Vendor as described in the Scope of Work. All other equipment and materials required for the proper completion of the Work shall be provided by the Vendor as described in the Scope of Work. b. The parties agree that the City may request from time to time that the Vendor procure certain equipment, including additional water meters, not currently included in the Scope of Work, and request other changes to the Work. Upon receipt of a written request from the City for the addition, deletion, or revision to the Work, the Vendor shall promptly prepare and deliver to the City an estimate of the financial, scheduling and performance impact of such change. Upon the City's authorization following an opportunity for City to review the Vendor's estimate, the Vendor shall prepare a written proposal for the change (a "Change Proposal") setting forth (i) a description of the change, (ii) the impact that such change would have on the time schedules and the completion date(s), and (iii) the change to the Vendor's Compensation and Fees. If the City accepts the Vendor's Change Proposal, the parties shall execute a Change Order memorializing the changes to the Work and the Agreement. C. This Agreement shall commence on the date of execution by the City Manager and, if not terminated in accordance with paragraph 9, shall terminate upon completion of the Work in accordance with this Agreement, including Exhibits; d. The scope of the Work is detailed in Exhibit "A." e. The time schedules for the Work are specified in Exhibit "B." f. Each of these Exhibits "A" through "F" is incorporated into this Agreement by reference for all purposes. g. This Agreement is a supplemental agreement to PCA Vendor Contract No.: OD-365-22. Agreement for Services Page I of 30 2. Compensation and Fees a. The City shall pay the Vendor monthly progress payments based upon detailed invoices submitted by the Vendor based upon the percentage of Scope of Work construction and equipment procurement completed at the end of each month as defined by the Schedule of Values in Exhibit C monthly i. Engineering & Design (Project Development ................................. $166,148.00 ii. Boxes, lids, curb stops, and ancillary materials.................................$832,699.00 iii. Installation labor for meters, endpoints and other material ................$1,709,001.00 iv. AMI Network, Software, Cust. Portal & Integrations (Material &Labor)..$153,613.00 v. Payment and Performance Bond..................................................$46,429.00 vi. Construction Mgmt, Legal, Contract Admin, Travel, Overhead .............$435,040.00 vii. Total Not to Exceed.............................................................$3,342,933.00 b. If this Agreement allows for annual renewals, Compensation and Fees ❑ shall /shall not increase annually based upon year-to-year changes in the Consumer Price Index Urban ("CPIU"). CPIU increases under this agreement shall be adjusted to reflect the CPIU sixty- four (64) days prior to the effective date of the renewed contract. Vendor understands and agrees that CPIU increases under this Agreement are not automatic. Vendor shall not be entitled to a CPIU increase unless, at least sixty-four (64) days prior to the effective date of each renewed contract, Vendor notifies the City, in writing in accordance with Paragraph l(b), of its desire to obtain a CPIU increase. C. Vendor shall not exceed the fixed contractual amount without written authorization in the form of a contract amendment. d. Vendor shall invoice based upon total services actually completed during the applicable month. Invoices and all required or requested backup information shall be tendered no more often than once a month. Vendor shall not invoice the City for services or expenses that were incurred more than sixty (60) days before the date of the invoice. Failure to timely invoice the City for services or expenses shall result in Vendor's invoice being denied. e. In the event of a disputed or contested invoice, the City may withhold from payment that portion so disputed or contested, and the undisputed portion will be paid. f. The City shall pay Vendor the maximum rate permitted by Chapter 2251 of the Texas Government Code on any past due payment not received within 30 days after the payment due date. In accordance with§ 2251.043, in a formal administrative or judicial action to collect an invoice payment or interest due under this chapter, the opposing party, which may be the City or Vendor, shall pay the reasonable attorney fees of the prevailing party. g. If the City fails to pay any amount to Vendor when due, Vendor has the right to suspend its performance of Work upon five (5) days written notice to the City and, if such City event of default is not cured within thirty (30) days after the commencement of such suspension, to terminate this Agreement upon an additional ten (10) days written notice. Vendor shall be entitled to any available legal or equitable remedies. Agreement for Services Page 2 of 30 h. Ownership and title to all City -Provided Equipment shall remain at all times with the City. Ownership and title to the Work or discrete portions thereof shall automatically pass to City upon Vendor's receipt of both (i) the executed Substantial Completion Certificate (including City payment certification) delivered pursuant to this Agreement for the Work or a discrete portion thereof, and (ii) the indefeasible payment in full of all of City's payment obligations to Vendor pursuant to such Substantial Completion Certificate for such Work or portion thereof. The City and Vendor intend for the Work to be performed in discrete packages that align with the City's current billing routes or cycles (each, an "Installation Group") which are more completely described and defined in Exhibit "A" — Scope of Work. Prior to the satisfaction of the conditions set forth in (i) and (ii) above with respect to an Installation Group, title to each Installation Group (excluding any City -Provided Equipment) shall remain in the name of Vendor. Upon completion of all Work under this Agreement, City will acknowledge its receipt and acceptance of all Work described in Exhibit "A" that is complete and in good working condition through the issuance of a Final Completion Certificate. i. City has provided Vendor with all records heretofore requested by Vendor, to the best of City's knowledge. Any changes to the Scope of Work as a result of inadequate or inaccurate information regarding existing infrastructure may result in a Change Order. 3. Personnel of Vendor a. Vendor's Project Manager Vendor shall designate Garrett Luther, to serve as Senior Project Manager for the Work performed under this Agreement. Any change of Senior Project Manager shall require thirty (30) days advance written approval from the City's Representative. b. Data on Vendor's Employees Prior to commencement of the Work, Vendor shall forward to the City a detailed resume of the personnel that will be assigned to the Work. d. Rejection of Vendor's Employees The City reserves the right to approve or reject from the Work any employees of Vendor. 4. Designation and Duties of the City's Representative a. The Director of Finance or his/her designee shall act as the City's Representative. b. The City's Representative shall use his/her best efforts to provide nonconfidential City records for Vendor's use. However, the City does not guarantee the accuracy or correctness of the documents so provided. Notwithstanding the foregoing, Vendor shall be entitled to use and rely upon information provided by the City in performing the services required under this Agreement only to the extent and level specified by the City in writing for each document provided. Nothing contained herein shall be construed to require the City to provide such records in any certain format. The format in which the existing data and documentation will be provided shall be at the sole discretion of the City. Agreement for Services Page 3 of 30 5. Standards of Performance a. Vendor shall perform all services under this Agreement with the care and skill ordinarily used by members of Vendor's profession practicing under the same or similar circumstances, time and locality. Opinion of probable costs shall be based upon the Vendor's experience and represent its best judgment as an experienced and skilled practitioner. Each submittal of opinion of probable cost shall be commensurate with the project design. Vendor shall be responsible for the accuracy of its services and documents resulting therefrom, and the City shall not be responsible for discovering deficiencies therein. Vendor shall correct such deficiencies without additional compensation. b. Codes and Standards i. All references to codes, standards, environmental regulations and/or material specifications shall be to the latest revision, including all effective supplements or addenda thereto, as of the date that the requestor forWork is made by the City. ii. The Work shall be designed and furnished in accordance with the most current codes and/or standards adopted by city, state, or federal government or in general custom and usage by the profession and shall comply with Texas Department of Licensing and Regulation's rules and regulations. iii. The codes and standards used in the profession set forth minimum requirements. These may be exceeded by the Vendor if superior methods are available for successful completion of the Work. Any alternative codes or regulations used shall have requirements that are equivalent or better than those in the above -listed codes and regulations. Vendor shall state the alternative codes and regulations used. iv. Vendor agrees the services it provides as an experienced and qualified Water Meter Installation will reflect the professional standards, procedures and performances common in the industry for this project. Vendor further agrees that any analysis, reports, preparation of drawings, the designation or selection of materials and equipment, the selection and supervision of personnel and the performance of other services under this Agreement will be pursuant to the standard of performance common in the profession. V. Vendor shall promptly correct any defects caused by Vendor at no cost to City. The City's approval, acceptance, use of or payment for all or any part of Vendor's services hereunder or of the Work itself shall in no way alter Vendor's obligations or the City's rights under this Agreement. As applicable, Vendor shall provide the City with record "as -built" drawings relating to the Work in an electronic format that is acceptable to the City. City shall be in receipt of record drawings, if Agreement for Services Page 4 of 30 applicable, prior to final payment. c . Warranty Vendor warrants to City that the Work and services will be performed in a good and workmanlike manner, will be free from defects in workmanship, and will conform to the specifications, drawings, descriptions and requirements of this Agreement. Except as expressly provided herein to the contrary, Vendor warrants that it shall remedy any defects or deficiencies in the Work or the services which appear prior to the date that is one (1) year from the date of Substantial Completion of each Installation Group (the "Warranty Period"). If City discovers a breach of the warranty during the Warranty Period, the City will notify Vendor in writing of such failure promptly upon discovery. Vendor shall (i) conduct a preliminary investigation and if the Work or services covered under the warranty fails to conform to the warranty as described in such notice from City or as otherwise discovered by Vendor, Vendor shall, at its option, either repair or replace any defective parts at its own expense as promptly as possible. ii. Vendor's warranties herein do not cover damage, malfunction or services failures caused by: (i) City's failure to follow operation and maintenance manuals, (ii) repair, service or modification by any party other than Vendor or a third party contracted by Vendor; (iii) abuse, neglect, misuse or negligent acts or omissions by someone other than Vendor; (iv) damage or deteriorated performance of the equipment caused by electrical surges, lightning, fire, flood, extreme weather, pest damage, accidental breakage, actions of third parties and other causes not arising under normal operating conditions; (iv) any Force Majeure Event, as defined herein; or (v) normal wear and tear. 6. Schedule Vendor shall not proceed with the Work or any stage thereof until written notice to proceed is provided by the City's Representative. 7. Insurance Vendor shall procure and maintain at its sole cost and expense for the duration of the Agreement, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Work hereunder by Vendor, its agents, representatives, volunteers, employees or subcontractors. a. Vendor's insurance coverage shall be primary insurance with respect to the City, its officials, employees and agents. Any insurance or self-insurance maintained by the City, its officials, employees or agents shall be considered in excess of Vendor's insurance and shall not contribute to it. Further, Vendor shall include all subcontractors, agents and assigns as additional insureds under its policy or shall furnish separate certificates and endorsements for each such person or entity. All coverages for subcontractors and assigns shall be subject to all of the requirements stated herein. Agreement for Services Page 5 of 30 The following is a list of standard insurance policies along with their respective minimum coverage amounts required in this Agreement: Commercial General Liability ■ General Aggregate: $2,000,000 ■ Products & Completed Operations Aggregate: $2,000,000 ■ Personal & Advertising Injury: $1,000,000 ■ Per Occurrence: $1,000,000 ■ Fire Damage $500,000 ■ Waiver of Subrogation required ■ Coverage shall be broad form ■ No coverage shall be deleted from standard policy without notification of individual exclusions being attached for review and acceptance. ii. Business Automobile Policy ■ Combined Single Limits: $1,000,000 ■ Coverage for "Any Auto" ■ Waiver of Subrogation required iii. Errors and Omissions ■ Limit: $1,000,000 for this project ■ Claims -made form is acceptable ■ Coverage will be in force for one (1) year after completion of the Project ■ Waiver of Subrogation required iv. Workers' Compensation ■ Statutory Limits ■ Employer's Liability$500,000 ■ Waiver of Subrogation required b. The following shall be applicable to all policies of insurance required herein: Insurance carrier for all liability policies must have an A.M. Best Rating of A: VIII or better. ii. Only insurance carriers licensed and admitted to do business in the State of Texas will be accepted. iii. Liability policies must be on occurrence form. Errors and Omissions can be on claims - made form. iv. Each insurance policy shall be endorsed to state that coverage shall not be suspended, voided, canceled or reduced in coverage or in limits except after thirty (30) days prior written notice by mail, return receipt requested, has been given to the City. Agreement for Services Page 6 of 30 V. The City, its officers, agents and employees are to be added as Additional Insureds to all liability policies, with the exception of the Workers' Compensation and Errors and Omissions Policies required herein. vi. Upon request and without cost to the City, certified copies of all insurance policies and/or certificates of insurance shall be furnished to the City. vii. Upon request and without cost to the City, loss runs (claims listing) of any and/or all insurance coverages shall be furnished to the City. viii. All insurance required herein shall be secured and maintained in a company or companies satisfactory to the City, and shall be carried in the name of Vendor. Vendor shall provide copies of insurance policies and endorsements required hereunder to the City on or before the effective date of this Agreement. C. The Vendor shall execute and deliver to the City a performance and a payment bond, pursuant to Texas Government Code Chapter 2253, each with a value of 100% of the total amount of this Agreement. Once accepted by the City, the bonds shall become a part of this Agreement and attached hereto as Exhibit F. The Work authorized by this Agreement shall not commence unless and until the executed performance and payment bonds are delivered to the City. 8. Indemnification and Release VENDOR AGREES TO AND SHALL INDEMNIFY AND HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES (HEREINAFTER REFERRED TO AS THE "CITY") FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS AND LIABILITY OF EVERY KIND, INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS, AND ATTORNEY'S FEES, FOR INJURY TO OR DEATH OF ANY PERSON, FOR DAMAGE TO ANY PROPERTY OR FOR ANY BREACH OF CONTRACT TO THE EXTENT ARISING OUT OF OR IN CONNECTION WITH AN ACT OF NEGLIGENCE, INTENTIONAL TORT, INTELLECTUAL PROPERTY INFRINGEMENT, OR FAILURE TO PAY A SUBCONTRACTOR OR SUPPLIER COMMITTED BY THE VENDOR OR THE VENDOR'S AGENT, VENDOR UNDER CONTRACT, OR ANOTHER ENTITY OVER WHICH THE VENDOR EXERCISES CONTROL (COLLECTIVELY, VENDOR'S PARTIES). IT IS THE EXPRESS INTENTION OF THE PARTIES HERETO, BOTH VENDOR AND THE CITY, THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY VENDOR TO INDEMNIFY AND PROTECT THE CITY FROM THE CONSEQUENCES OF VENDOR'S PARTIES' OWN WILLFUL MISCONDUCT, JOINT OR SOLE NEGLIGENCE AS WELL AS THE VENDOR'S PARTIES' INTENTIONAL TORTS, INTELLECTUAL PROPERTY INFRINGEMENTS, AND FAILURES TO MAKE PAYMENTS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. SUCH INDEMNITY SHALL NOT APPLY, HOWEVER, TO LIABILITY ARISING FROM THE PERSONAL Agreement for Services Page 7 of 30 INJURY, DEATH, OR PROPERTY DAMAGE OF PERSONS THAT IS CAUSED BY OR RESULTS FROM THE NEGLIGENCE OF ANY PERSON OTHER THAN THE VENDOR'S PARTIES. IN THE EVENT THAT ANY ACTION OR PROCEEDING IS BROUGHT AGAINST THE CITY FROM WHICH THE CITY IS INDEMNIFIED, VENDOR FURTHER AGREES AND COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE CITY. THE INDEMNITY PROVIDED HEREINABOVE SHALL SURVIVE THE TERMINATION AND/OR EXPIRATION OF THIS AGREEMENT. By this Agreement, the City does not consent to litigation or suit, and the City hereby expressly revokes any consent to litigation that it may have granted by the terms of this Agreement or any other contract or agreement, any charter, or applicable state law. Nothing herein shall be construed so as to limit or waive the City's sovereign immunity. Vendor assumes full responsibility for its services performed hereunder and hereby releases, relinquishes and discharges the City, its officers, agents, and employees from all claims, demands, and causes of action of every kind and character, including the cost of defense thereof, for any injury to or death of any person (whether they be either of the parties hereto, their employees, or other third parties) and any loss of or damage to property (whether the property be that of either of the parties hereto, their employees, or other third parties) that is caused by or alleged to be caused by, arising out of, or in connection with Vendor's services to be performed hereunder. This release shall apply with respect to Vendor's services regardless of whether said claims, demands, and causes of action are covered in whole or in part by insurance. 9. Subcontractors Vendor has proposed to use the following subcontractors: Pinnacle AMI, LLC (2437 East Oak Street, Goliad, TX); Pedal Valve, Inc (13625 River Road, Luling, LA); and if necessary, Second Sight Systems (12949 Maurer Industrial Drive, St. Louis, MO) which subcontractors have been approved by the City. Vendor shall receive written approval of the City's Representative prior to the use of any subcontractors other than those listed here, which approval shall not be unreasonably delayed or withheld. A copy of all proposed contracts with subcontractors shall be given to the City upon request. 10. Termination of Vendor The City, besides all other rights or remedies it may have, shall have the right to terminate this Agreement without cause upon written notice from the City Manager to Vendor of the City's election to do so. Furthermore, the City may terminate this Agreement if Vendor breaches this Agreement and (with respect to (a), (b), (e), (f), and (g) below) fails to cure or remedy such breach within thirty (30) days after notice and a written demand is made by the City to Vendor to cure the same. A breach of this Agreement shall include, but not be limited to, the following: (a) failing to pay insurance premiums, liens, claims or other charges; (b) failing to pay any payments due the city, state, or federal government from Vendor or its principals, including, but not limited to, any taxes, fees, assessments, liens, or any payments identified in this Agreement; (c) the institution of voluntary or involuntary bankruptcy proceeding againstVendor; Agreement for Services Page 8 of 30 (d) the dissolution of Vendor; (e) refusing or failing to prosecute the Work or any separable part with the diligence that will ensure its completion within the time specified in this Agreement; (f) failing to complete the Work within the time period specified in this Agreement; and/or (g) the violation of any provision of this Agreement. Upon delivery of any notice of termination required herein, Vendor shall discontinue all services in connection with the performance of the Agreement. Within ten (10) days after receipt of the notice of termination, Vendor shall submit a final statement showing in detail the services satisfactorily performed and accepted and all other appropriate documentation required herein for payment of services. At the same time that the final statement is tendered to the City, Vendor shall also tender to the City's Representative all of Vendor's instruments of service, including all drawings, special provisions, field survey notes, reports, estimates, and any and all other documents or work product generated by Vendor under this Agreement, whether complete or not, in an acceptable form and format together with all unused materials supplied by the City. No final payment will be made until all such instruments of service and materials supplied are so tendered. If this Agreement is terminated for cause, Vendor shall be liable for any damage to the City resulting therefrom. This liability includes any increased costs incurred by the City in completing Vendor's services. The rights and remedies of the City in this section are in addition to any other rights and remedies provided by law or under this Agreement. 11. Records Within ten (10) days of the City's request and at no cost to the City, the City will be entitled to review and receive a copy of all documents that indicate Work on the Project that is subject to this Agreement. 12. Supervision of Vendor Vendor is an independent contractor, and the City neither reserves nor possesses any right to control the details of the Work performed by Vendor under the terms of this Agreement. 13. Billing The City shall have thirty (30) days to pay Vendor's invoices from the date of receipt of such invoices and necessary backup information. All invoices must identify with specificity the Work or services performed and the date(s) of such Work or services. In the event of a disputed or contested invoice, the parties understand and agree that the City may withhold the portion so contested, but the undisputed portion will be paid. Vendor shall invoice the City for Work performed no more than once a month and may not invoice the City for Work not performed. Invoices shall be received by the City no later than sixty (60) calendar days from the date Vendor and/or its subcontractors perform the services or incur the expense. Failure by Vendor to comply with this requirement shall result in Vendor's invoice being denied and the City being relieved from any liability for payment of the late invoice. 14. Indebtedness If Vendor, at any time during the term of this Agreement, incurs a debt, as that word is defined in section 2-662 of the Code of Ordinances of the City of Baytown, it shall immediately notify the City's Director Agreement for Services Page 9 of 30 of Finance in writing. If the City's Director of Finance becomes aware that Vendor has incurred a debt, the City's Director of Finance shall immediately notify Vendor in writing. If Vendor does not pay the debt within thirty (30) days of either such notification, the City's Director of Finance may deduct funds in an amount equal to the debt from any payments owed to Vendor under this Agreement, and Vendor waives any recourse therefor. 15. Verifications If Vendor has ten (10) or more full-time employees and Vendor's total compensation under this Agreement has a value of One Hundred Thousand Dollars ($100,000.00) or more, Vendor makes the following verifications in accordance with Chapters 2271 and 2274 of the Texas Government Code: a. the Vendor does not boycott Israel and will not boycott Israel during the term of the contract to be entered into with the City of Baytown; b. the Vendor does not boycott energy companies and will not boycott energy companies during the term of the contract to be entered into with the City of Baytown; and C. the Vendor does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association and will not discriminate during the term of the contract against a firearm entity or firearm trade association. 16. Governing Law and Venue This Agreement has been made under and shall be governed by the laws of the State of Texas. The parties further agree that performance and all matters related thereto shall be in Harris County, Texas. The parties irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such state and federal courts of competent jurisdiction in Harris County, Texas. 17. Notices Unless otherwise provided in this Agreement, any notice provided for or permitted to be given must be in writing and delivered in person or by depositing same in the United States mail, postpaid and registered or certified, and addressed to the party to be notified, with return receipt requested, or by delivering the same to an officer of such party. Notice deposited in the mail as described above shall be conclusively deemed to be effective, unless otherwise stated in this Agreement, from and after the expiration of three (3) days after it is so deposited. Agreement for Services Page 10 of 30 For the purpose of notice, the addresses of the parties shall be as follows unless properly changed as provided for herein below: For the City: For Vendor: CITY OF BAYTOWN Attn: City Manager P.O. Box 424 Baytown, Texas 77522-0424 AMERESCO Attn: General Counsel I I I Speen Street, Suite 410 Framingham, MA 01701 Each party shall have the right from time to time at any time to change its respective address and each shall have the right to specify a new address, provided that at least fifteen (15) days written notice is given of such new address to the otherparty. 18. No Third -Party Beneficiary This Agreement shall not bestow any rights upon any third party, but rather, shall bind and benefit Vendor and the City only. No person or entity not a signatory to this Agreement shall be entitled to rely on Vendor's performance of its services hereunder, and no right to assert a claim against Vendor by assignment of indemnity rights or otherwise shall accrue to a third party as a result of this Agreement or the performance of Vendor's services hereunder. 19. Dispute Resolution; No Right to Arbitration In the event that any question, dispute, difference or claim arises out of or is in connection with this Agreement, including any question regarding its existence, validity, performance or termination (a "Dispute"), which either party has notified to the other, senior management personnel from both Vendor and the City shall meet and diligently attempt in good faith to resolve the Dispute for a period ofthirty (30) days following one party's written request to the other party for such a meeting. If, however, either party refuses or fails to so meet, or the Dispute is not resolved by negotiation, either party may pursue any remedy available either in law or equity. Each party shall continue to perform its obligation under this Agreement during the period of any dispute resolution, provided that, in Vendor's case, such obligation to continue Work is conditioned on Vendor having been paid all undisputed amounts payable to Vendor. Notwithstanding anything to the contrary contained in this Agreement, the City and Vendor hereby agree that no claim or dispute between the City and Vendor arising out of or relating to this Agreement shall be decided by any arbitration proceeding, including, without limitation, any proceeding under the Federal Arbitration Act (9 U.S.C. Sections 1-14), or any applicable State arbitration statute, including, but not limited to, the Texas General Arbitration Act, provided that in the event that the City is subjected Agreement for Services Page I I of 30 to an arbitration proceeding notwithstanding this provision, Vendor consents to be joined in the arbitration proceeding if Vendor's presence is required or requested by the City of complete relief to be recorded in the arbitration proceeding. 20. Waiver No waiver by either party to this Agreement of any term or condition of this Agreement shall be deemed or construed to be a waiver of any other term or condition or subsequent waiver of the same term or condition. 21. Complete Agreement This Agreement, inclusive of the terms included in PCA Vendor Contract #OD-365-22, represents the entire and integrated Agreement between the City and Vendor in regard to the subject matter hereof and supersedes all prior negotiations, representations or agreements, whether written or oral, on the subject matter hereof. This Agreement may only be amended by written instrument approved and executed by both of the parties. To the extent that any conflict exists between this Agreement and PCA Vendor Contract # OD-365-22, this Agreement shall control. The City and Vendor accept and agree to these terms. 22. No Assignment Vendor may not sell or assign all or part interest in this Agreement to another party or parties without the prior express written approval of the City Manager of such sale or assignment. The City may require any records or financial statements necessary in its opinion to ensure such sale or assignment will be in the best interest of the City. 23. Headings The headings used in this Agreement are for general reference only and do not have special significance. 24. Severability All parties agree that should any provision of this Agreement be determined to be invalid or unenforceable, such determination shall not affect any other term of this Agreement, which shall continue in full force and effect. 25. Ambiguities In the event of any ambiguity in any of the terms of this Agreement, it shall not be construed for or against any party hereto on the basis that such party did or did not author the same. 26. Authority The officers executing this Agreement on behalf of the parties hereby represent that such officers have full authority to execute this Agreement and to bind the party he she represents. 27. Access to Site The City shall arrange for Vendor, its employees, subcontractors and agents to have reasonable access Agreement for Services Page 12 of 30 to the site or sites where the Work is to take place to enable Vendor to perform its obligations hereunder. The City shall be responsible for obtaining any necessary rights of access from third parties to permit Vendor to enter onto property not owned by the City and perform the Work. 28. Force Majeure If either party is rendered wholly or partly unable to perform its obligations under this Agreement because of events beyond the reasonable control of the affected party, including acts of God; natural disasters; fire; flood; earthquake; explosion; declared or undeclared war; acts of terrorism, acts orders, law or regulations of any governmental authority; failure of necessary utilities or telecommunications; or interruption or failure of supply chains each, a "Force Majeure Event"), that party shall be excused from whatever performance is affected by the Force Majeure Event to the extent so affected; provided that: (a) such party gives the other party written notice describing the particulars of the Force Majeure Event as soon as is reasonably practicable; (b) the suspension of performance is of no greater scope and of no longer duration than is reasonably required by the Force Majeure Event; (c) no obligations of the party that arose before the occurrence causing the suspension of performance shall be excused as a result of the occurrence of the Force Majeure Event unless the performance of such obligations is impaired by the Force Majeure Event; (d) the party uses commercially reasonable efforts to overcome or mitigate the effects of the Force Majeure Event; and (e) when the party is able to resume performance of its obligations under this Agreement, such party shall give the other party written notice to that effect and shall promptly resume performance hereunder. 29. Limitations on Liability Aggregate Limit of Liability. Notwithstanding any other provision of this Agreement, Vendor's total aggregate liability arising out of or relating to this Agreement, from any and all causes, whether based on contract, tort (including negligence), strict liability or any other cause of action, shall in no event exceed one hundred percent (100`;0) of the total compensation paid or payable to Vendor under this Agreement. No Consequential Damages. To the extent permitted by applicable law and notwithstanding any other provision of this Agreement, in no event, whether as a result of breach of contract, tort liability (including negligence), strict liability or any other cause of action, shall either party (or its affiliates) be liable to the other party (or its affiliates) for special, indirect, exemplary or consequential damages of any nature whatsoever, including losses or damages caused by reason of loss of use, loss of profits or revenue (other than payments expressly required and due under this Agreement), interest charges or cost of capital. Notwithstanding the foregoing, the obligations and duties relating to claims by third parties described in Section 8 (Indemnification and Release) hereinabove shall not be limited. Agreement for Services Page 13 of 30 IN WITNESS WHEREOF. the parties hereto have executed this Agreement in multiple copies, each of which s hall be deemed to be an original, but all of which shall constitute but one and the same Agreement on the day of 2026, the date of execution by the City Manager of the City of Baytown. CITY OF BAYTOWN JASON E. REYNOLDS, City Manager ATTEST: ANGELA JACKSON, City Clerk APPROVED AS TO FORM: (Signature) (Printed Name) (Title) Agreement for Services Page 14 of 30 VENDOR: /(Sature) Louis P. Maltezos (Printed Name) Co -President. Ameresco Inc. (Title) STATE OF +4"4;16-c4V>,-f%; COUNTY OF § Before me on this day personally appeared is.,"c i) . "gs rg-z. t in his/her capacity as �: - i'n,-sc�� •+ i . on behalf of such kscj i TV$ c . , [ known to me; ❑ proved to me on the oath of ; or proved to me through his/her current {description of identification card or other document issued by the federal government or any state government that contains the photograph and signature of the acknowledging person; (check one) to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he/she executed the same for the purposes and consideration therein expressed. SUBSCRIBED AND SWORN before me this I Sr" day of Nei 24- 1s. - o ry Public in and for the State of u SS ck--,CrT-� ``%%IIIl,,1i % HONVA16 � �q,'-'� cZ�PRY P& 4T : '=off CH ,Sq �i�'LYExPire= ��• Agreement for Services Page 15 of 30 EXHIBIT A SCOPE OF WORK WATER METER DATABASE The following water meter counts are included in the Scope of Services which reflects the meter size and locations as documented in the meter accounts list provided by Customer to Ameresco August 2025, as more particularly set forth in Exhibit D. The following table shows the quantity of water meters currently installed at the residential and commercial locations in Exhibit D. These meters will be replaced as part of this project. There are additional meters already installed in the system. Ameresco is not responsible for any scope of work associated with these meters, except for collecting sub -meter GPS Coordinates. Should the Customer desire to add any work related to these meters to the Scope of Work, those items and services can be considered under a Change Order. Agreement for Services Page 16 of 30 ATTACHMENT B SCOPE OF SERVICES This Attachment sets forth a description of the Meters and related equipment to be installed by Ameresco for the meter count set forth in Attachment A and more specifically defined in Attachment O. Installation of the Meters and the included equipment is subject to change if Ameresco discovers unforeseen conditions at the Property that render its preliminary analysis of the Property inaccurate or as mutually agreed up Customer and Ameresco. Any changes to the installation of the Meters and the included equipment are subject to approval of Customer and issuance of a Change Order, which approval shall not be unreasonably withheld, conditioned or delayed. AMI System The Customer has begun the installation of a Neptune Advanced Metering Infrastructure (AMI) system and has already installed Neptune 360 software to allow for remote reading of the water meters' data. The Customer has installed (3) Neptune Gateways and approximately 10,321 meters with AMI radios. This project will complete the conversion of the remaining 12,350 3/4" meters and 942 1" meters from a drive -by system to the AMI system. Sub -meter GPS coordinates will be collected for both new meters to be replaced as well as the 12,231 additional meters in the distribution system listed in the table on the previous page. The GPS coordinates will be delivered to Customer in an electronic flat file. The Customer provided a list of assets and meter database, which was used to develop a propagation study by Neptune Technologies. Neptune and Customer provided the results of that propagation study, which was dated June 13, 2025, to assist in the development of this Scope of Work. Additionally, a data file / account list dated August 2025 was extracted from the Customer's CIS system and used for the final development of this Scope of Work. As previously stated, the Customer had previously installed 3 Gateways and the additional 5 Neptune Gateways will be installed in the following locations: Coax Coax(f 413away 29.77106 - AVA MFB915 1 T 5 95.03115 GPV4 26 150 5 200 5 4MrktSt 29.72532 - AVA MFB915 1 T 5 94.99586 GPV4 10 169 5 219 5 4Needle - AVA MFB915 1 T 29.81141 94.92198 GPV4 30 169 5 219 5 4NMain 29.78353 - AVA MFB915 1 T 3 94.96497 GPV4 30 150 5 200 5 4ParkSt 29.74660 - AVA MFB915 1 T 9 94.98146 GPV4 16 169 1 5 1 219 5 Agreement for Services Page 17 of 30 Ameresco is not responsible for the installation or functionality of the 3 City installed Gateways. These gateways are not part of the scope of work for this project. Installation of the AMI network infrastructure shall consist of the following: • Install (5) Neptune 360 Gateways. o Gateway, UPS, antennas, and external cellular antenna kits will be provided by Customer and handed over to Ameresco for installation. o Ameresco will install and commission Neptune 360 Gateways on each of the existing elevated storage tanks at the above locations o Install Gateways including the cabling, antenna, and other necessary equipment as required • Installation of the Gateways includes the following: - Supply and install all standard brackets and material required for AMI equipment installation. - Provide electrical wiring and connections for proper operation of the AMI equipment from the equipment to the electrical junction box located near the Gateway. - As each site is completed, tests will be performed to ensure all aspects of the installation have been properly completed and consistent with the manufacturer's requirements or industry standards. - Configuration and performance testing of Gateways will be completed by Ameresco and the Neptune design team. Software Installation and Integration In addition to the AMI infrastructure and metrology, Ameresco will supply and install Neptune My360 Customer Portal software to allow the Customer's users to access data collected by the AMI system. Ameresco will also coordinate and perform various integration services to allow the data captured from the new meters and Gateway installed under this Scope of Work to be incorporated into Customers' existing Neptune 360 Software. The scope of work includes the following: • Ameresco to provide, set up and install Neptune My360 Consumer Portal. • Integrate data from a total of 13,292 water meters to the Customer's CIS software, the Neptune 360 software, and the Neptune My360 Consumer Portal. • Backhaul communication from the Gateways to the remote Neptune 360 server will be perfonned via cellular communication. The City must activate the cellular backhaul communication service for the data to be transmitted from the Gateways to the Neptune 360 platform. Agreement for Services Page 18 of 30 • Ameresco's meter installs will be tracked through the Work Order Management system, via address, and meter serial number. • All previously installed meters by the Customer will be called out by address, and serial number. You can find this in attachment (E). Ameresco is not responsible for the reading of these meters. Water Meters The City will provide 12.350 new 5/8" x 1/4" meters (MACH 10 or T10) for installation by Ameresco. Deviations, additions, and substitutions will be handled on a case -by -case basis. Ameresco will provide 942 1" Neptune Mach 10 meters and endpoints. Water Meters Meter Replacement 5/8" x 3/4" Mach 10 / T10 12,350 1" Mach 10 942 Total: 13,292 • All new replacement meters provided by Ameresco will be Neptune Mach 10 meters. All are solid-state water meters with a R900 endpoint/radio. • All endpoints will be wired for through -the -lid antenna installation. • General scope for the meter replacement is as follows: - Clean debris and dirt from the meter and piping inside the pit as necessary. - Pump water out of the pit as needed - Observe status of service shut-off valve prior to work. - Check for indication of flow. - Attempt occupant notification. - Shut off water service at service shut-off valve. - Remove existing meter. - Install new meter. - Turn on water service at service shut-off valve. - Clear air from the line and verify operation by opening downstream valve. - Verify the meter is not leaking and there is an indication of flow. - Restore service shut-off valve to the original position. Agreement for Services Page 19 of 30 Provide miscellaneous material and labor required to install the new meter. - If Customer reasonably determines that a line break within two feet upstream and two feet downstream of the replaced meter is the result of Ameresco's workmanship and not due to accident, vandalism, or other casualty, Customer shall contact Ameresco to repair the leak. Notwithstanding any provision herein to the contrary, Ameresco will be responsible for repairing line breaks two feet upstream and two feet downstream of the replaced meter resulting from Ameresco's workmanship for up to 90 days from installation. Measurement will be pulled from the meter coupling on the compromised side of the line. - Ameresco will turn over the existing water meters to the Customer for salvage. - Ameresco will collect required installation data for uploading to the Customer's billing system. • When replacing the meters, Ameresco will collect the following data for existing and replacement equipment: - Date and time of service - Account number - Service address - Meter ID number - Radio ID number - Meter size - Meter brand - Meter type Register reading Pre- and post -installation photo documentation Sub -meter GPS Coordinates • Non-functioning service shut-off/curb-stop valves for small water meters (5/8"0/4") will be replaced as field conditions require. Small and Intermediate Meter Box/Lid Replacements • The scope includes replacing structurally damaged boxes and/or lids for the small meters (size 5/8"x3/4" and 1 ") with AMI-ready meter lid and/or box. o Replacement lids/boxes shall be DFW Anti -float compression molded lids model DFW1200 for the 5/8"x3/4" and 1" meters Agreement for Services Page 20 of 30 ■ Model: DFW1200-12-EAFIT-DEEPbox/lid) ■ Model: DFW 1200-1 T DEEP -LID (lid only) Individual meter box installation will require the following: • Meter box replacement will be concurrent with site meter replacement. • General scope for the meter box replacement is as follows: - Dig and demolish existing meter box. - New meter box will be installed in a `like for like' manner to match existing conditions. - Set new box, ensuring meter and shutoff valves are centered in box for ease of service. - Backfill around box to grade. General Clarifications, Inclusions & Exclusions The following additional clarifications, exclusions, and Customer responsibilities are applicable to this measure: • A successful and complete meter installation is defined as any meter installed to manufacturer specifications where the data has been accurately transferred into the utility billing database and read one or more times electronically over the AMI network. • At the point of a successful and complete meter installation, the installation labor warranty begins, and system benefits may be realized. • A completed and functional AMI system is defined as the meters being installed and capable of sending signals to the antenna, these devices receiving those signals and transmitting the information to the Neptune meter data management system, and the Neptune meter data management system accurately sending the information to the Customer's utility billing system. • Due to external conditions, not all meters will read in the Neptune meter data management system every day, therefore not all data will be uploaded into the customer portal daily. • Customer will contract separately with Neptune and will be financially responsible for any annual software hosting fees or any Gateway maintenance fees associated with this Project. • Customer will allow Ameresco to install Neptune Gateways at the identified locations on an existing asset at no charge. • Ameresco assumes the existing asset where a Gateway will be installed is structurally safe, provides adequate facilities for mounting the required brackets and antennas, and those facilities / assets are readily accessible via integrated structures (ladders, catwalks, etc.). Agreement for Services Page 21 of 30 • Customer will allow Ameresco to connect to and use existing, onsite 120VAC electrical supply to power the Gateways at no charge. • All Gateway sites will use cellular services for data communication backhaul. The cellular backhaul communication service must be active for the data to be transmitted. • Customer will contract separately with the cellular communication provider for ongoing cellular data backhaul services. Customer will be responsible for all ongoing fees to maintain cellular services. • If for any reason Ameresco cannot install a Gateway at the planned asset location for the planned height, Ameresco will attempt to find an alternate location during construction. • For all work associated with Gateways or related assets, the following exclusions apply: - Correction of any deficiencies in the existing utility infrastructure and assets are not included. - Any deficiencies in existing electrical systems at sites chosen for the base stations, including proper grounding and bonding, are not included. - Removal and trimming of trees or plant material related to antenna or Gateways installation is not included. - Replacement or addition of trees, shrubs, grass, or mulch is not included. - Removal, reinstallation, or addition of fencing is not included. • Ameresco will be providing and distributing post -installation door hangers. • Ameresco will provide storage containers (Conex boxes — up to 40 foot long) for meters and boxes/lids inventory. Customer will allow Ameresco to set Conex boxes at Customer's site located at 2123 Market Street, Baytown, TX. Ameresco plans to use up to 2 Conex boxes during construction. • Customer will provide a container for existing meters that will be salvaged or recycled. Container will be located at 1601 W. Main Street, Baytown, TX. • Customer will provide a trash dumpster for use by Ameresco. • Customer will provide an area for disposal of spoils/dirt/debris from this scope of work during the construction phase of this project, which is to be located at 3030 Ferry Road, Baytown, TX. • Customer provide gateway materials must be in new condition, and factory packaging. Ameresco is not responsible for none working equipment, and the RMA process will be handled by the Customer. • Ameresco will be responsible for inventory control of meters and boxes/lids. Agreement for Services Page 22 of 30 • Customer will transfer 12,350 5/8 x 3/4 Neptune meters previously purchased by Customer to be installed under this Scope of Work over to Ameresco as requested by Ameresco. Meters will be in new condition, not used. • Customer/Ameresco will track the inventory transfer with a material transfer form populated by Ameresco and signed off on by both parties, for each transfer. • Monthly material transfer quantity 2000 meters, along with the digital serial number files. • If Customer's new meter material isn't at the same laydown yard as Ameresco containers, Customer will delivery meters to Ameresco's laydown yard. • Customer will assist Ameresco in unloading pallets off delivery trucks using Customer's forklift or other machines required to unload materials for this project off delivery trucks. Ameresco will attempt to provide at least 24-hour notice of any deliveries. • For all meter gaskets and washers, customer prefers rubber. • Generally, when doing repairs on pipes and fittings, Ameresco will use like for like materials. No galvanized fittings or piping to be used. • If applicable, Customer to assist in identification of any underground utility services in the area around the meter box or vault locations when requested by Ameresco. Relocation or rerouting of utility lines is not included. • Any deficiencies in existing utility infrastructure that are identified are excluded but will be reported to the Customer. • Any existing water leaks found prior to beginning the meter replacement or retrofit will be reported to the Customer for future repair by Customer. • Following a meter replacement, Customer shall investigate any leaks that are reported to or discovered by Customer. If Customer reasonably determines that a leak is the result of Ameresco's workmanship and not due to accident, vandalism, or other casualty, Customer shall contact Ameresco to repair the leak. Notwithstanding any provision herein to the contrary, Ameresco will be responsible for repairing leaks at the meter that are the result of Ameresco's workmanship and are reported to Ameresco within 90 days following the meter replacement. • Repair of line breaks beyond two feet upstream and two feet downstream of the replaced meter are not included. Measurement will be pulled from the meter coupling on the compromised side of the line. • Lowering or relocating water service lines associated with water meters is not included. • Any repositioning or leveling of existing meter boxes for cosmetic appearance different than as - found condition is not included. • Installation of meter re -setters or risers with the new meters is not included. Agreement for Services Page 23 of 30 • Installation of check valves or other backflow prevention devices with the new meters is not included. • Additional repairs, replacements, or any modifications to existing meter pits or vaults not already listed and defined above or in the meter box or vault replacement scope of works are not included. • Concrete, asphalt, and sidewalk repairs due to meter access, rework of meter boxes, repair of leaks, or replacement of meters is not included. • Any cutting or removal of tree roots or shrubbery so that meter can be replaced or to gain access to the meter is not included. The cost for any arborist or specialist required for this work will be provided by the Customer. • Abatement of any hazardous materials or hazardous material testing is excluded. • Return to Utility (RTU) is a classification given to specific water meters during construction that requires action from the Customer before the project scope can be finished. The RTU will clearly define the required action the Customer will need to address. To maintain the defined construction schedule by Installation Group, the Customer will make reasonable efforts to address all RTUs within a 2-week period from the date each specific meter or issue was classified as RTU. Throughout the construction period, Ameresco will maintain a log of all RTUs that has at a minimum date issued, date cleared, and specific action required and will review this log at the weekly construction meeting with the Customer. CUSTOMER MAINTENANCE RESPONSIBILITIES General Responsibilities Customer, at its own expense, will keep and maintain, or cause to be kept and maintained, the Meters and all equipment in as good operating condition as when delivered to the Customer hereunder, ordinary wear and tear resulting from proper use thereof alone excepted, and will provide maintenance and service and make all repairs necessary for such purpose. Responsibility for the proper maintenance, service, repair and adjustments to each Meter and related ancillary systems and equipment, including related expenses, shall transfer to the Customer on an Installation Group basis on the date of "Substantial Completion" of each Installation Group as such date is determined in accordance with the definition of Substantial Completion set forth in Section 1 of the Agreement. The Customer will be responsible for such maintenance, service, repair and adjustments for the remainder of the Term. Operation and Maintenance Manuals (O&M Manuals) will be provided to the Customer, by Ameresco. Included with the O&M manuals will be a list of maintenance responsibilities and tasks for the Customer. Operations The Customer shall operate the equipment installed hereunder in accordance with parameters noted in Agreement for Services Page 24 of 30 the manufacturers' recommendations, and any supplemental procedures supplied to the Customer by Ameresco, including those set forth in the O&M manuals. Maintenance The Customer's maintenance responsibilities include the proper operation and prompt repair and maintenance of the Meters and related ancillary systems and equipment such that they are maintained in good working order during the Tenn. The Customer shall repair and maintain (i) the Meters and all related equipment and other components which comprise the Meters installed hereunder and (ii) all other equipment which is attached thereto and/or is integral to the proper functioning of the Meters, including performance of the maintenance tasks, manufacturer's recommendations and supplemental procedures included in the O&M Manuals. Maintenance also refers to performing required maintenance of ancillary systems. Agreement for Services Page 25 of 30 EXHIBIT B — SCHEDULE f c s 9 ' i '�t 9 u • . 4 7 ? 3 s t ! '.i q 1S ss� Agreement for Services Page 26 of 30 a 3 3 3 �aaa 3 Ifis a Bi 7 3 _ ^ i f Agreement for Services Page 27 of 30 EXHIBIT C SCHEDULE OF VALUES - , $ . . . . . . . ■ a fee § ■ $ � ©■� §� ■§ ■ _ _§ _§ ...... - 2 $ a $® � - s n � §7 - I � ƒa-- £ » } \ # # ƒ & � � ■ g - Agreement for Services Page 28 of 30 EXHIBIT D SCOPE OF WORK — METER ACCOUNT LIST TO BE REPLACED Agreement for Services Page 29 of 30 EXHIBIT E METER ACCOUNT LIST FOR SUB -METER GPS COORDINATES NO OTHER WORK RELATED TO THESE ACCOUNTS Agreement for Services Page 30 of 30 AGREEMENT FOR THE REPLACEMENT AND INSTALLATION OF WATER METERS AND SUB -METER GPS UNITS ONLY STATE OF TEXAS COUNTY OF HARRIS This Agreement (this "Agreement") is entered into by and between Ameresco, Inc. (hereinafter Vendor") and the City of Baytown, a home -rule municipality located in Harris and Chambers Counties, Texas (the "City"). 1. Scope of Services/ Vendor Fees a. This Agreement authorizes the Vendor to perform only Water Meter and Gateway Installation services for Utility Services (the "Work") for and on behalf of the City as specified in the Scope of Work attached as Exhibit "A." The City and Vendor agree that the City intends to purchase certain equipment, including but not limited to water meters City -Provided Equipment") for installation by the Vendor as described in the Scope of Work, All other equipment and materials required for the proper completion of the Work shall be provided by the Vendor as described in the Scope of Work. b. The parties agree that the City may request from time to time that the Vendor procure certain equipment, including additional water meters, not currently included in the Scope of Work, and request other changes to the Work. Upon receipt of a written request from the City for the addition, deletion, or revision to the Work, the Vendor shall promptly prepare and deliver to the City an estimate of the financial, scheduling and performance impact of such change. Upon the City's authorization following an opportunity for City to review the Vendor's estimate, the Vendor shall prepare a written proposal for the change (a "Change Proposal") setting forth (1) a description of the change, (ii) the impact that such change would have on the time schedules and the completion date(s), and (iii) the change to the Vendor's Compensation and Fees. If the City accepts the Vendor's Change Proposal, the parties shall execute a Change Order memorializing the changes to the Work and the Agreement. C. This Agreement shall commence on the date of execution by the City Manager and, if not terminated in accordance with paragraph 9, shall terminate upon completion of the Work in accordance with this Agreement, including Exhibits; d. The scope of the Work is detailed in Exhibit "A." e. The time schedules for the Work are specified in Exhibit "B." f. Each of these Exhibits "A" through "F" is incorporated into this Agreement by reference for all purposes. g. This Agreement is a supplemental agreement to PCA Vendor Contract No.: 013-365-22. Agreement for Services Page 1 of 30 EXHIBIT "A" 2. Compensation and Fees a. The City shall pay the Vendor monthly progress payments based upon detailed invoices submitted by the Vendor based upon the percentage of Scope of Work construction and equipment procurement completed at the end of each month as defined by the Schedule of Values in Exhibit C monthly i. Engineering & Design (Project Development.................................$166,148.00 ii. Boxes, lids, curb stops, and ancillary materials.................................$832,699.00 iii. Installation labor for meters, endpoints and other material ................$1,709,001.00 iv. AMI Network, Software, Cust. Portal & Integrations (Material &Labor)..$153,613.00 v. Payment and Performance Bond..................................................$46,429.00 vi. Construction Mgmt, Legal, Contract Admin, Travel, Overhead .............$435,040.00 vii. Total Not to Exceed.............................................................$3,342,933.00 b. If this Agreement allows for annual renewals, Compensation and Fees i i shall /shall not increase annually based upon year-to-year changes in the Consumer Price Index Urban CPIU"). CPIU increases under this agreement shall be adjusted to reflect the CPIU sixty- four (64) days prior to the effective date of the renewed contract. Vendor understands and agrees that CPIU increases under this Agreement are not automatic. Vendor shall not be entitled to a CPIU increase unless, at least sixty-four (64) days prior to the effective date of each renewed contract, Vendor notifies the City, in writing in accordance with Paragraph 1(b), of its desire to obtain a CPIU increase. C. Vendor shall not exceed the fixed contractual amount without written authorization in the form of a contract amendment. d. Vendor shall invoice based upon total services actually completed during the applicable month. Invoices and all required or requested backup information shall be tendered no more often than once a month. Vendor shall not invoice the City for services or expenses that were incurred more than sixty (60) days before the date of the invoice. Failure to timely invoice the City for services or expenses shall result in Vendor's invoice being denied. e. In the event of disputed or contested invoice, the City may withhold from payment that portion so disputed or contested, and the undisputed portion will be paid. f. The City shall pay Vendor the maximum rate permitted by Chapter 2251 of the Texas Government Code on any past due payment not received within 30 days after the payment due date. In accordance with§ 2251.043, in a formal administrative or judicial action to collect an invoice payment or interest due under this chapter, the opposing party, which may be the City or Vendor, shall pay the reasonable attorney fees of the prevailing party. g. If the City fails to pay any amount to Vendor when due, Vendor has the right to suspend its performance of Work upon five (5) days written notice to the City and, if such City event of default is not cured within thirty (30) days after the commencement of such suspension, to terminate this Agreement upon an additional ten (10) days written notice. Vendor shall be entitled to any available legal or equitable remedies. Agreement for Services Page 2 of 30 h. Ownership and title to all City -Provided Equipment shall remain at all times with the City. Ownership and title to the Work or discrete portions thereof shall automatically pass to City upon Vendor's receipt of both (i) the executed Substantial Completion Certificate (including City payment certification) delivered pursuant to this Agreement for the Work or a discrete portion thereof, and (ii) the indefeasible payment in full of all of City's payment obligations to Vendor pursuant to such Substantial Completion Certificate for such Work or portion thereof. The City and Vendor intend for the Work to be performed in discrete packages that align with the City's current billing routes or cycles (each, an "Installation Group") which are more completely described and defined in Exhibit "A" Scope of Work. Prior to the satisfaction of the conditions set forth in (i) and (ii) above with respect to an Installation Group, title to each Installation Group (excluding any City -Provided Equipment) shall remain in the name of Vendor. Upon completion of all Work under this Agreement, City will acknowledge its receipt and acceptance of all Work described in Exhibit "A" that is complete and in good working condition through the issuance of a Final Completion Certificate. City has provided Vendor with all records heretofore requested by Vendor, to the best of City's knowledge. Any changes to the Scope of Work as a result of inadequate or inaccurate information regarding existing infrastructure may result in a Change Order. 3. Personnel of Vendor a. Vendor's Project Manager Vendor shall designate Garrett Luther, to serve as Senior Project Manager for the Work performed under this Agreement. Any change of Senior Project Manager shall require thirty 30) days advance written approval from the City's Representative. b. Data on Vendor's Employees Prior to commencement of the Work, Vendor shall forward to the City a detailed resume of the personnel that will be assigned to the Work. d. Rejection of Vendor's Employees The City reserves the right to approve or reject from the Work any employees of Vendor. 4. Designation and Duties of the City's Representative a. The Director of Finance or his/her designee shall act as the City's Representative. b. The City's Representative shall use his/her best efforts to provide nonconfidential City records for Vendor's use. However, the City does not guarantee the accuracy or correctness of the documents so provided. Notwithstanding the foregoing, Vendor shall be entitled to use and rely upon information provided by the City in performing the services required under this Agreement only to the extent and level specified by the City in writing for each document provided. Nothing contained herein shall be construed to require the City to provide such records in any certain format. The format in which the existing data and documentation will be provided shall be at the sole discretion of the City. Agreement for Services Page 3 of 30 5. Standards of Performance a. Vendor shall perform all services under this Agreement with the care and skill ordinarily used by members of Vendor's profession practicing under the same or similar circumstances, time and locality. Opinion of probable costs shall be based upon the Vendor's experience and represent its best judgment as an experienced and skilled practitioner. Each submittal of opinion of probable cost shall be commensurate with the project design. Vendor shall be responsible for the accuracy of its services and documents resulting therefrom, and the City shall not be responsible for discovering deficiencies therein. Vendor shall correct such deficiencies without additional compensation. b. Codes and Standards All references to codes, standards, environmental regulations and/or material specifications shall be to the latest revision, including all effective supplements or addenda thereto, as of the date that the requestor forWork is made by the City. ii. The Work shall be designed and furnished in accordance with the most current codes and/or standards adopted by city, state, or federal government or in general custom and usage by the profession and shall comply with Texas Department of Licensing and Regulation's rules and regulations. iii. The codes and standards used in the profession set forth minimum requirements. These may be exceeded by the Vendor if superior methods are available for successful completion of the Work. Any alternative codes or regulations used shall have requirements that are equivalent or better than those in the above -listed codes and regulations. Vendor shall state the alternative codes and regulations used. iv. Vendor agrees the services it provides as an experienced and qualified Water Meter Installation will reflect the professional standards, procedures and performances common in the industry for this project. Vendor further agrees that any analysis, reports, preparation of drawings, the designation or selection of materials and equipment, the selection and supervision of personnel and the performance of other services under this Agreement will be pursuant to the standard of performance common in the profession. V. Vendor shall promptly correct any defects caused by Vendor at no cost to City. The City's approval, acceptance, use of or payment for all or any part of Vendor's services hereunder or of the Work itself shall in no way alter Vendor's obligations or the City's rights under this Agreement. As applicable, Vendor shall provide the City with record "as -built" drawings relating to the Work in an electronic format that is acceptable to the City. City shall be in receipt of record drawings, if Agreement for Services Page 4 of 30 applicable, prior to final payment. C. Warranty Vendor warrants to City that the Work and services will be performed in a good and workmanlike manner, will be free from defects in workmanship, and will conform to the specifications, drawings, descriptions and requirements of this Agreement. Except as expressly provided herein to the contrary, Vendor warrants that it shall remedy any defects or deficiencies in the Work or the services which appear prior to the date that is one (1) year from the date of Substantial Completion of each Installation Group (the Warranty Period"). If City discovers a breach of the warranty during the Warranty Period, the City will notify Vendor in writing of such failure promptly upon discovery. Vendor shall (i) conduct a preliminary investigation and if the Work or services covered under the warranty fails to conform to the warranty as described in such notice from City or as otherwise discovered by Vendor, Vendor shall, at its option, either repair or replace any defective parts at its own expense as promptly as possible. ii. Vendor's warranties herein do not cover damage, malfunction or services failures caused by: (i) City's failure to follow operation and maintenance manuals, (ii) repair, service or modification by any party other than Vendor or a third party contracted by Vendor; (iii) abuse, neglect, misuse or negligent acts or omissions by someone other than Vendor; (iv) damage or deteriorated performance of the equipment caused by electrical surges, lightning, fire, flood, extreme weather, pest damage, accidental breakage, actions of third parties and other causes not arising under normal operating conditions; (iv) any Force Majeure Event, as defined herein; or (v) normal wear and tear. 6. Schedule Vendor shall not proceed with the Work or any stage thereof until written notice to proceed is provided by the City's Representative. 7. Insurance Vendor shall procure and maintain at its sole cost and expense for the duration of the Agreement, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Work hereunder by Vendor, its agents, representatives, volunteers, employees or subcontractors. a. Vendor's insurance coverage shall be primary insurance with respect to the City, its officials, employees and agents. Any insurance or self-insurance maintained by the City, its officials, employees or agents shall be considered in excess of Vendor's insurance and shall not contribute to it. Further, Vendor shall include all subcontractors, agents and assigns as additional insureds under its policy or shall furnish separate certificates and endorsements for each such person or entity. All coverages for subcontractors and assigns shall be subject to all of the requirements stated herein. Agreement for Services Page 5 of 30 The following is a list of standard insurance policies along with their respective minimum coverage amounts required in this Agreement: Commercial General Liability General Aggregate: $2,000,000 Products & Completed Operations Aggregate: $2,000,000 Personal & Advertising Injury: $1,000,000 Per Occurrence: $1,000,000 Fire Damage $500,000 Waiver of Subrogation required Coverage shall be broad form No coverage shall be deleted from standard policy without notification of individual exclusions being attached for review and acceptance. ii. Business Automobile Policy Combined Single Limits: $1,000,000 Coverage for "Any Auto" Waiver of Subrogation required iii. Errors and Omissions Limit: $1,000,000 for this project Claims -made form is acceptable Coverage will be in force for one (1) year after completion of the Project Waiver of Subrogation required iv. Workers' Compensation Statutory Limits Employer's Liability$500,000 Waiver of Subrogation required b. The following shall be applicable to all policies of insurance required herein: Insurance carrier for all liability policies must have an A.M. Best Rating of A: VIII or better. ii. Only insurance carriers licensed and admitted to do business in the State of Texas will be accepted. iii. Liability policies must be on occurrence form. Errors and Omissions can be on claims - made form. iv. Each insurance policy shall be endorsed to state that coverage shall not be suspended, voided, canceled or reduced in coverage or in limits except after thirty (30) days prior written notice by mail, return receipt requested, has been given to the City. Agreement for Services Page 6 of 30 V. The City, its officers, agents and employees are to be added as Additional Insureds to all liability policies, with the exception of the Workers' Compensation and Errors and Omissions Policies required herein. vi. Upon request and without cost to the City, certified copies of all insurance policies and/or certificates of insurance shall be furnished to the City. vii. Upon request and without cost to the City, loss runs (claims listing) of any and/or all insurance coverages shall be furnished to the City. viii. All insurance required herein shall be secured and maintained in a company or companies satisfactory to the City, and shall be carried in the name of Vendor. Vendor shall provide copies of insurance policies and endorsements required hereunder to the City on or before the effective date of this Agreement. C. The Vendor shall execute and deliver to the City a performance and a payment bond, pursuant to Texas Government Code Chapter 2253, each with a value of t00% of the total amount of this Agreement. Once accepted by the City, the bonds shall become a part of this Agreement and attached hereto as Exhibit F. The Work authorized by this Agreement shall not commence unless and until the executed performance and payment bonds are delivered to the City. 8. Indemnification and Release VENDOR AGREES TO AND SHALL INDEMNIFY AND HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES HEREINAFTER REFERRED TO AS THE "CITY") FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS AND LIABILITY OF EVERY KIND, INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS, AND ATTORNEY'S FEES, FOR INJURY TO OR DEATH OF ANY PERSON, FOR DAMAGE TO ANY PROPERTY OR FOR ANY BREACH OF CONTRACT TO THE EXTENT ARISING OUT OF OR IN CONNECTION WITH AN ACT OF NEGLIGENCE, INTENTIONAL TORT, INTELLECTUAL PROPERTY INFRINGEMENT, OR FAILURE TO PAY A SUBCONTRACTOR OR SUPPLIER COMMITTED BY THE VENDOR OR THE VENDOR'S AGENT, VENDOR UNDER CONTRACT, OR ANOTHER ENTITY OVER WHICH THE VENDOR EXERCISES CONTROL (COLLECTIVELY, VENDOR'S PARTIES). IT IS THE EXPRESS INTENTION OF THE PARTIES HERETO, BOTH VENDOR AND THE CITY, THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY VENDOR TO INDEMNIFY AND PROTECT THE CITY FROM THE CONSEQUENCES OF VENDOR'S PARTIES' OWN WILLFUL MISCONDUCT, JOINT OR SOLE NEGLIGENCE AS WELL AS THE VENDOR'S PARTIES' INTENTIONAL TORTS, INTELLECTUAL PROPERTY INFRINGEMENTS, AND FAILURES TO MAKE PAYMENTS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. SUCH INDEMNITY SHALL NOT APPLY, HOWEVER, TO LIABILITY ARISING FROM THE PERSONAL Agreement for Services Page 7 of 30 INJURY, DEATH, OR PROPERTY DAMAGE OF PERSONS THAT IS CAUSED BY OR RESULTS FROM THE NEGLIGENCE OF ANY PERSON OTHER THAN THE VENDOR'S PARTIES. IN THE EVENT THAT ANY ACTION OR PROCEEDING IS BROUGHT AGAINST THE CITY FROM WHICH THE CITY IS INDEMNIFIED, VENDOR FURTHER AGREES AND COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE CITY. THE INDEMNITY PROVIDED HEREINABOVE SHALL SURVIVE THE TERMINATION AND/OR EXPIRATION OF THIS AGREEMENT. By this Agreement, the City does not consent to litigation or suit, and the City hereby expressly revokes any consent to litigation that it may have granted by the terms of this Agreement or any other contract or agreement, any charter, or applicable state law. Nothing herein shall be construed so as to limit or waive the City's sovereign immunity. Vendor assumes full responsibility for its services performed hereunder and hereby releases, relinquishes and discharges the City, its officers, agents, and employees from all claims, demands, and causes of action of every kind and character, including the cost of defense thereof, for any injury to or death of any person (whether they be either of the parties hereto, their employees, or other third parties) and any loss of or damage to property (whether the property be that of either of the parties hereto, their employees, or other third parties) that is caused by or alleged to be caused by, arising out of, or in connection with Vendor's services to be performed hereunder. This release shall apply with respect to Vendor's services regardless of whether said claims, demands, and causes of action are covered in whole or in part by insurance. 9. Subcontractors Vendor has proposed to use the following subcontractors: Pinnacle AMI, LLC (2437 East Oak Street, Goliad, TX); Pedal Valve, Inc (13625 River Road, Luling, LA); and if necessary, Second Sight Systems 12949 Maurer Industrial Drive, St. Louis, MO) which subcontractors have been approved by the City. Vendor shall receive written approval of the City's Representative prior to the use of any subcontractors other than those listed here, which approval shall not be unreasonably delayed or withheld. A copy of all proposed contracts with subcontractors shall be given to the City upon request. 10. Termination of Vendor The City, besides all other rights or remedies it may have, shall have the right to terminate this Agreement without cause upon written notice from the City Manager to Vendor of the City's election to do so. Furthermore, the City may terminate this Agreement if Vendor breaches this Agreement and (with respect to (a), (b), (e), (f), and (g) below) fails to cure or remedy such breach within thirty (30) days after notice and a written demand is made by the City to Vendor to cure the same. A breach of this Agreement shall include, but not be limited to, the following: a) failing to pay insurance premiums, liens, claims or other charges; b) failing to pay any payments due the city, state, or federal government from Vendor or its principals, including, but not limited to, any taxes, fees, assessments, liens, or any payments identified in this Agreement; c) the institution of voluntary or involuntary bankruptcy proceeding againstVendor; Agreement for Services Page 8 of 30 d) the dissolution of Vendor; e) refusing or failing to prosecute the Work or any separable part with the diligence that will ensure its completion within the time specified in this Agreement; f) failing to complete the Work within the time period specified in this Agreement; and/or g) the violation of any provision of this Agreement. Upon delivery of any notice of termination required herein, Vendor shall discontinue all services in connection with the performance of the Agreement. Within ten (10) days after receipt of the notice of termination, Vendor shall submit a final statement showing in detail the services satisfactorily performed and accepted and all other appropriate documentation required herein for payment of services. At the same time that the final statement is tendered to the City, Vendor shall also tender to the City's Representative all of Vendor's instruments of service, including all drawings, special provisions, field survey notes, reports, estimates, and any and all other documents or work product generated by Vendor under this Agreement, whether complete or not, in an acceptable form and format together with all unused materials supplied by the City. No final payment will be made until all such instruments of service and materials supplied are so tendered. If this Agreement is terminated for cause, Vendor shall be liable for any damage to the City resulting therefrom. This liability includes any increased costs incurred by the City in completing Vendor's services. The rights and remedies of the City in this section are in addition to any other rights and remedies provided by law or under this Agreement. 11. Records Within ten (10) days of the City's request and at no cost to the City, the City will be entitled to review and receive a copy of all documents that indicate Work on the Project that is subject to this Agreement. 12. Supervision of Vendor Vendor is an independent contractor, and the City neither reserves nor possesses any right to control the details of the Work performed by Vendor under the terms of this Agreement. 13. Billing The City shall have thirty (30) days to pay Vendor's invoices from the date of receipt of such invoices and necessary backup information. All invoices must identify with specificity the Work or services performed and the date(s) of such Work or services. In the event of a disputed or contested invoice, the parties understand and agree that the City may withhold the portion so contested, but the undisputed portion will be paid. Vendor shall invoice the City for Work performed no more than once a month and may not invoice the City for Work not performed. Invoices shall be received by the City no later than sixty (60) calendar days from the date Vendor and/or its subcontractors perform the services or incur the expense. Failure by Vendor to comply with this requirement shall result in Vendor's invoice being denied and the City being relieved from any liability for payment of the late invoice. 14. Indebtedness If Vendor, at any time during the term of this Agreement, incurs a debt, as that word is defined in section 2-662 of the Code of Ordinances of the City of Baytown, it shall immediately notify the City's Director Agreement for Services Page 9 of 30 of Finance in writing. If the City's Director of Finance becomes aware that Vendor has incurred a debt, the City's Director of Finance shall immediately notify Vendor in writing. If Vendor does not pay the debt within thirty (30) days of either such notification, the City's Director of Finance may deduct funds in an amount equal to the debt from any payments owed to Vendor under this Agreement, and Vendor waives any recourse therefor. 15. Verifications If Vendor has ten (10) or more full-time employees and Vendor's total compensation under this Agreement has a value of One Hundred Thousand Dollars ($100,000.00) or more, Vendor makes the following verifications in accordance with Chapters 2271 and 2274 of the Texas Government Code: a. the Vendor does not boycott Israel and will not boycott Israel during the term of the contract to be entered into with the City of Baytown; b. the Vendor does not boycott energy companies and will not boycott energy companies during the term of the contract to be entered into with the City of Baytown; and C. the Vendor does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association and will not discriminate during the term of the contract against a firearm entity or firearm trade association. lb. Governing Law and Venue This Agreement has been made under and shall be governed by the laws of the State of Texas. The parties further agree that performance and all matters related thereto shall be in Harris County, Texas. The parties irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such state and federal courts of competent jurisdiction in Harris County, Texas. 17. Notices Unless otherwise provided in this Agreement, any notice provided for or permitted to be given must be in writing and delivered in person or by depositing same in the United States mail, postpaid and registered or certified, and addressed to the party to be notified, with return receipt requested, or by delivering the same to an officer of such party. Notice deposited in the mail as described above shall be conclusively deemed to be effective, unless otherwise stated in this Agreement, from and after the expiration of three 3) days after it is so deposited. Agreement for Services Page 10 of 30 For the purpose of notice, the addresses of the parties shall be as follows unless properly changed as provided for herein below: For the City: For Vendor: CITY OF BAYTOWN Attn: City Manager P.O. Box 424 Baytown, Texas 77522-0424 AMERESCO Attn: General Counsel 111 Speen Street, Suite 410 Framingham, MA 01701 Each party shall have the right from time to time at any time to change its respective address and each shall have the right to specify a new address, provided that at least fifteen (15) days written notice is given of such new address to the otherparty. 18. No Third -Party Beneficiary This Agreement shall not bestow any rights upon any third party, but rather, shall bind and benefit Vendor and the City only. No person or entity not a signatory to this Agreement shall be entitled to rely on Vendor's performance of its services hereunder, and no right to assert a claim against Vendor by assignment of indemnity rights or otherwise shall accrue to a third party as a result of this Agreement or the performance of Vendor's services hereunder. 19. Dispute Resolution; No Right to Arbitration In the event that any question, dispute, difference or claim arises out of or is in connection with this Agreement, including any question regarding its existence, validity, performance or termination (a Dispute"), which either party has notified to the other, senior management personnel from both Vendor and the City shall meet and diligently attempt in good faith to resolve the Dispute for a period of thirty (30) days following one party's written request to the other party for such a meeting. If, however, either party refttses or fails to so meet., or the Dispute is not resolved by negotiation, either party May pursue any remedy available either in law or equity. Each party shall continue to perform its obligation under this Agreement during the period of any dispute resolution, provided that, in Vendor's case, such obligation to continue Work is conditioned on Vendor having been paid all undisputed amounts payable to Vendor. Notwithstanding anything to the contrary contained in this Agreement, the City and Vendor hereby agree that no claim or dispute between the City and Vendor arising out of or relating to this Agreement shall be decided by any arbitration proceeding, including, without limitation, any proceeding under the Federal Arbitration Act (9 U.S.C. Sections 1-14), or any applicable State arbitration statute, including, but not limited to, the Texas General Arbitration Act, provided that in the event that the City is subjected Agreement for Services Page I 1 of 30 to an arbitration proceeding notwithstanding this provision, Vendor consents to be joined in the arbitration proceeding if Vendor's presence is required or requested by the City of complete relief to be recorded in the arbitration proceeding. 20. Waiver No waiver by either party to this Agreement of any term or condition of this Agreement shall be deemed or construed to be a waiver of any other term or condition or subsequent waiver of the same term or condition. 21. Complete Agreement This Agreement, inclusive of the terms included in PCA Vendor Contract #OD-365-22, represents the entire and integrated Agreement between the City and Vendor in regard to the subject matter hereof and supersedes all prior negotiations, representations or agreements, whether written or oral, on the subject matter hereof. This Agreement may only be amended by written instrument approved and executed by both of the parties. To the extent that any conflict exists between this Agreement and PCA Vendor Contract # OD-365-22, this Agreement shall control. The City and Vendor accept and agree to these terms. 22. No Assignment Vendor may not sell or assign all or part interest in this Agreement to another party or parties without the prior express written approval of the City Manager of such sale or assignment. The City may require any records or financial statements necessary in its opinion to ensure such sale or assignment will be in the best interest of the City. 23. Headings The headings used in this Agreement are for general reference only and do not have special significance. 24. Severability All parties agree that should any provision of this Agreement be determined to be invalid or unenforceable, such determination shall not affect any other term of this Agreement, which shall continue in full force and effect. 25. Ambiguities In the event of any ambiguity in any of the terms of this Agreement, it shall not be construed for or against any party hereto on the basis that such party did or did not author the same. 26. Authority The officers executing this Agreement on behalf of the parties hereby represent that such officers have frill authority to execute this Agreement and to bind the party he she represents. 27. Access to Site The City shall arrange for Vendor, its employees, subcontractors and agents to have reasonable access Agreement for Services Page 12 of 30 to the site or sites where the Work is to take place to enable Vendor to perform its obligations hereunder. The City shall be responsible for obtaining any necessary rights of access from third parties to permit Vendor to enter onto property not owned by the City and perform the Work. 28. Force Majeure If either party is rendered wholly or partly unable to perform its obligations under this Agreement because of events beyond the reasonable control of the affected party, including acts of God; natural disasters; fire; flood; earthquake; explosion; declared or undeclared war; acts of terrorism, acts orders, law or regulations of any governmental authority; failure of necessary utilities or telecommunications; or interruption or failure of supply chains (each, a "Force Majeure Event"), that party shall be excused from whatever performance is affected by the Force Majeure Event to the extent so affected; provided that: a) such party gives the other party written notice describing the particulars of the Force Majeure Event as soon as is reasonably practicable; b) the suspension of performance is of no greater scope and of no longer duration than is reasonably required by the Force Majeure Event; c) no obligations of the party that arose before the occurrence causing the suspension of performance shall be excused as a result of the occurrence of the Force Majeure Event unless the performance of such obligations is impaired by the Force Majeure Event; d) the party uses commercially reasonable efforts to overcome or mitigate the effects of the Force Majeure Event; and e) when the party is able to resume performance of its obligations under this Agreement, such party shall give the other party written notice to that effect and shall promptly resume performance hereunder. 29. Limitations on Liability Aggregate Limit of Liability. Notwithstanding any other provision of this Agreement, Vendor's total aggregate liability arising out of or relating to this Agreement, from any and all causes, whether based on contract, tort (including negligence), strict liability or any other cause of action, shall in no event exceed one hundred percent (100" o) of the total compensation paid or payable to Vendor under this Agreement. No Consequential Damages. To the extent permitted by applicable law and notwithstanding any other provision of this Agreement, in no event, whether as a result of breach of contract, tort liability (including negligence), strict liability or any other cause of action, shall either party (or its affiliates) be liable to the other party (or its affiliates) for special, indirect, exemplary or consequential damages of any nature whatsoever, including losses or damages caused by reason of loss of use, loss of profits or revenue (other than payments expressly required and due under this Agreement), interest charges or cost of capital. Notwithstanding the foregoing, the obligations and duties relating to claims by third parties described in Section 8 (indemnification and Release) hereinabove shall not be limited. Agreement for Services Page 13 of 30 IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiple copies, each of which s ha 1. be deemed to original, but all of which shall constitute but one and the same Agreemh entonthe : day of 2026, the date of execution by the City Manager of the City of Baytown. ATTEST AYroWNr t; ''• Up ; N i e UMN2MINW." N;114'; [ r-V` Li APPROVED AS TO FORM: Signature) Y n-%OS Printed Name) CITY OF BAYTOWN Arpl F1ynr, 1\6516AO-nt CM/ nngno Cr Agreement for Services Page 14 of 30 VENDOR: Signature) Louis P. Maltezos Printed Name) Co -President. Ameresco Inc. Title) STATE OF -LA"; R-c41. -Yh § COUNTY OF t4 ti Before me on this day personally appeared iczA s'. LAo4,Mz S in his -'her capacity as Peas , on beha l f of such kkAyv,;;: ij ; %V c . dknown to me; proved to me on the oath of _ ; or proved to me through his/her current description of identification card or other document issued by the federal government or any state government that contains the photograph and signature of the acknowledging person; check one) to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he/she executed the same for the purposes and consideration therein expressed. SUBSCRIBED AND SWORN before me this t 04-1 day of . 2016 o ry Public in and for the State o1' u %i k-r 0 ,IHONY4 , Y P jeq O l! SgCHUs EXFiles0'``. fill% Agreement for Services Page 15 of 30 EXHIBIT A SCOPE OF WORK WATER METER DATABASE The following water meter counts are included in the Scope of Services which reflects the meter size and locations as documented in the meter accounts list provided by Customer to Ameresco August 2025, as more particularly set forth in Exhibit D. The following table shows the quantity of water meters currently installed at the residential and commercial locations in Exhibit D. These meters will be replaced as part of this project. There are additional meters already installed in the system. Ameresco is not responsible for any scope of work associated with these meters, except for collecting sub -meter GPS Coordinates. Should the Customer desire to add any work related to these meters to the Scope of Work, those items and services can be considered under a Change Order. Agreement for Services Page 16 of 30 ATTACHMENT B SCOPE OF SERVICES This Attachment sets forth a description of the Meters and related equipment to be installed by Ameresco for the meter count set forth in Attachment A and more specifically defined in Attachment O. Installation of the Meters and the included equipment is subject to change if Ameresco discovers unforeseen conditions at the Property that render its preliminary analysis of the Property inaccurate or as mutually agreed up Customer and Ameresco. Any changes to the installation of the Meters and the included equipment are subject to approval of Customer and issuance of a Change Order, which approval shall not be unreasonably withheld, conditioned or delayed. AMI System The Customer has begun the installation of a Neptune Advanced Metering Infrastructure (AMI) system and has already installed Neptune 360 software to allow for remote reading of the water meters' data. The Customer has installed (3) Neptune Gateways and approximately 10,321 meters with AMI radios. This project will complete the conversion of the remaining 12,350 3`4" meters and 942 1" meters from a drive -by system to the AMI system. Sub -meter GPS coordinates will be collected for both new meters to be replaced as well as the 12,231 additional meters in the distribution system listed in the table on the previous page. The GPS coordinates will be delivered to Customer in an electronic flat file. The Customer provided a list of assets and meter database, which was used to develop a propagation study by Neptune Technologies. Neptune and Customer provided the results of that propagation study, which was dated June 13, 2025, to assist in the development of this Scope of Work. Additionally, a data file ? account list dated August 2025 was extracted from the Customer's CIS system and used for the final development of this Scope of Work. As previously stated, the Customer had previously installed 3 Gateways and the additional 5 Neptune Gateways will be installed in the following locations: Ma Locatio Longitu Collectr. r. n Latitude 4Baway 29.77106 AVA MFB915 1 T 5 95.03115 GPV4 26 150 5 200 5 4MrktSt 29.72532 AVA MFB915 1 T 5 94.99586 GPV4 10 169 5 219 5 4Needle AVA MFB915 1 T 29.81141 94.92198 GPV4 30 169 5 219 5 4NMain 29.78353 AVA MFB915 1 T 3 94.96497 GPV4 30 150 5 200 5 4ParkSt 29.74660 AVA MFB915 1 T 9 94.98146 GPV4 16 169 5 219 5 Agreement for Services Page 17 of 30 Ameresco is not responsible for the installation or functionality of the 3 City installed Gateways. These gateways are not part of the scope of work for this project. Installation of the AMI network infrastructure shall consist of the following: Install (5) Neptune 360 Gateways. o Gateway, UPS, antennas, and external cellular antenna kits will be provided by Customer and handed over to Ameresco for installation. c, Ameresco will install and commission Neptune 360 Gateways on each of the existing elevated storage tanks at the above locations o Install Gateways including the cabling, antenna, and other necessary equipment as required Installation of the Gateways includes the following: Supply and install all standard brackets and material required for AMI equipment installation. Provide electrical wiring and connections for proper operation of the AMI equipment from the equipment to the electrical junction box located near the Gateway. As each site is completed, tests will be performed to ensure all aspects of the installation have been properly completed and consistent with the manufacturer's requirements or industry standards. Configuration and performance testing of Gateways will be completed by Ameresco and the Neptune design team. Software Installation and Integration In addition to the AMI infrastructure and metrology, Ameresco will supply and install Neptune My360 Customer Portal software to allow the Customer's users to access data collected by the AMI system. Ameresco will also coordinate and perform various integration services to allow the data captured from the new meters and Gateway installed under this Scope of Work to be incorporated into Customers' existing Neptune 360 Software. The scope of work includes the following: Ameresco to provide, set up and install Neptune My360 Consumer Portal. Integrate data from a total of 13,292 water meters to the Customer's CIS software, the Neptune 360 software, and the Neptune My360 Consumer Portal. Backhaul communication from the Gateways to the remote Neptune 360 server will be performed via cellular communication. The City must activate the cellular backhaul communication service for the data to be transmitted from the Gateways to the Neptune 360 platform. Agreement for Services Page 18 of 30 Ameresco's meter installs will be tracked through the Work Order Management system, via address, and meter serial number. All previously installed meters by the Customer will be called out by address, and serial number. You can find this in attachment (E). Ameresco is not responsible for the reading of these meters. Water Meters The City will provide 12.350 new 5i8" x',4" meters (MACH 10 or T10) for installation by Ameresco. Deviations, additions, and substitutions will be handled on a case -by -case basis. Ameresco will provide 942 1" Neptune Mach 10 meters and endpoints. Water Meters Meter Replacement 5/8" x 3!4" Mach 10 / T10 12,350 I" Mach 10 942 Total: 13,292 All new replacement meters provided by Ameresco will be Neptune Mach 10 meters. All are solid-state water meters with a R900 endpoint/radio. All endpoints will be wired for through -the -lid antenna installation. General scope for the meter replacement is as follows: Clean debris and dirt from the meter and piping inside the pit as necessary. Pump water out of the pit as needed Observe status of service shut-off valve prior to work. Check for indication of flow. Attempt occupant notification. Shut off water service at service shut-off valve. Remove existing meter. Install new meter. Turn on water service at service shut-off valve. Clear air from the line and verify operation by opening downstream valve. Verify the meter is not leaking and there is an indication of flow. Restore service shut-off valve to the original position. Agreement for Services Page 19 of 30 Provide miscellaneous material and labor required to install the new meter. If Customer reasonably determines that a line break within two feet upstream and two feet downstream of the replaced meter is the result of Ameresco's workmanship and not due to accident, vandalism, or other casualty, Customer shall contact Ameresco to repair the leak. Notwithstanding any provision herein to the contrary, Ameresco will be responsible for repairing line breaks two feet upstream and two feet downstream of the replaced meter resulting from Ameresco's workmanship for up to 90 days from installation. Measurement will be pulled from the meter coupling on the compromised side of the line. Ameresco will turn over the existing water meters to the Customer for salvage. Ameresco will collect required installation data for uploading to the Customer's billing system. When replacing the meters, Ameresco will collect the following data for existing and replacement equipment: Date and time of service Account number Service address Meter ID number Radio ID number Meter size Meter brand Meter type Register reading Pre- and post -installation photo documentation Sub -meter GPS Coordinates Non-functioning service shut-off'curb-stop valves for small water meters (5/8"x14") will be replaced as field conditions require. Small and Intermediate Meter Box/Lid Replacements The scope includes replacing structurally damaged boxes and/or lids for the small meters (size 5/8"0/4" and 1") with AMI-ready meter lid and/or box. Replacement lids/boxes shall be DFW Anti -float compression molded lids model DFW 1200 for the 5 V'0/4" and 1" meters Agreement for Services Page 20 of 30 Model: DFW 1200-12-EAF 1 T-DEEPbox/lid) Model: DFW1200-IT DEEP -LID (lid only) Individual meter box installation will require the following: Meter box replacement will be concurrent with site meter replacement. General scope for the meter box replacement is as follows: Dig and demolish existing meter box. New meter box will be installed in a `like for like' manner to match existing conditions. Set new box, ensuring meter and shutoff valves are centered in box for ease of service. Backfill around box to grade. General Clarifications, Inclusions & Exclusions The following additional clarifications, exclusions, and Customer responsibilities are applicable to this measure: A successful and complete meter installation is defined as any meter installed to manufacturer specifications where the data has been accurately transferred into the utility billing database and read one or more times electronically over the AMI network. At the point of a successful and complete meter installation, the installation labor warranty begins, and system benefits may be realized. A completed and functional AMI system is defined as the meters being installed and capable of sending signals to the antenna, these devices receiving those signals and transmitting the information to the Neptune meter data management system, and the Neptune meter data management system accurately sending the information to the Customer's utility billing system. Due to external conditions, not all meters will read in the Neptune meter data management system every day, therefore not all data will be uploaded into the customer portal daily. Customer will contract separately with Neptune and will be financially responsible for any annual software hosting fees or any Gateway maintenance fees associated with this Project. Customer will allow Ameresco to install Neptune Gateways at the identified locations on an existing asset at no charge. Ameresco assumes the existing asset where a Gateway will be installed is structurally safe, provides adequate facilities for mounting the required brackets and antennas, and those facilities i assets are readily accessible via integrated structures (ladders, catwalks, etc.). Agreement for Services Page 21 of 30 Customer will allow Ameresco to connect to and use existing, onsite 120VAC electrical supply to power the Gateways at no charge. All Gateway sites will use cellular services for data communication backhaul. The cellular backhaul communication service must be active for the data to be transmitted. Customer will contract separately with the cellular communication provider for ongoing cellular data backhaul services. Customer will be responsible for all ongoing fees to maintain cellular services. If for any reason Ameresco cannot install a Gateway at the planned asset location for the planned height, Ameresco will attempt to find an alternate location during construction. For all work associated with Gateways or related assets, the following exclusions apply: Correction of any deficiencies in the existing utility infrastructure and assets are not included. Any deficiencies in existing electrical systems at sites chosen for the base stations, including proper grounding and bonding, are not included. Removal and trimming of trees or plant material related to antenna or Gateways installation is not included. Replacement or addition of trees, shrubs, grass, or mulch is not included. Removal, reinstallation, or addition of fencing is not included. Ameresco will be providing and distributing post -installation door hangers. Ameresco will provide storage containers (Conex boxes up to 40 foot long) for meters and boxes/lids inventory. Customer will allow Ameresco to set Conex boxes at Customer's site located at 2123 Market Street, Baytown, TX. Ameresco plans to use up to 2 Conex boxes during construction. Customer will provide a container for existing meters that will be salvaged or recycled. Container will be located at 1601 W. Main Street, Baytown, TX. Customer will provide a trash dumpster for use by Ameresco. Customer will provide an area for disposal of spoils/dirt/debris from this scope of work during the construction phase of this project, which is to be located at 3030 Ferry Road, Baytown, TX. Customer provide gateway materials must be in new condition, and factory packaging. Ameresco is not responsible for none working equipment, and the RMA process will be handled by the Customer. Ameresco will be responsible for inventory control of meters and boxes/lids. Agreement for Services Page 22 of 30 Customer will transfer 12,350 5!8 x 3'4 Neptune meters previously purchased by Customer to be installed under this Scope of Work over to Ameresco as requested by Ameresco. Meters will be in new condition, not used. Customer/Ameresco will track the inventory transfer with a material transfer form populated by Ameresco and signed off on by both parties, for each transfer. Monthly material transfer quantity 2000 meters, along with the digital serial number files. If Customer's new meter material isn't at the same laydown yard as Ameresco containers, Customer will delivery meters to Ameresco's laydown yard. Customer will assist Ameresco in unloading pallets off delivery trucks using Customer's forklift or other machines required to unload materials for this project off delivery trucks. Ameresco will attempt to provide at least 24-hour notice of any deliveries. For all meter gaskets and washers, customer prefers rubber. Generally, when doing repairs on pipes and fittings, Ameresco will use like for like materials. No galvanized fittings or piping to be used. If applicable, Customer to assist in identification of any underground utility services in the area around the meter box or vault locations when requested by Ameresco. Relocation or rerouting of utility lines is not included. Any deficiencies in existing utility infrastructure that are identified are excluded but will be reported to the Customer. Any existing water leaks found prior to beginning the meter replacement or retrofit will be reported to the Customer for future repair by Customer. Following a meter replacement, Customer shall investigate any leaks that are reported to or discovered by Customer. If Customer reasonably determines that a leak is the result of Ameresco's workmanship and not due to accident, vandalism, or other casualty, Customer shall contact Ameresco to repair the leak. Notwithstanding any provision herein to the contrary, Ameresco will be responsible for repairing leaks at the meter that are the result of Ameresco's workmanship and are reported to Ameresco within 90 days following the meter replacement. Repair of line breaks beyond two feet upstream and two feet downstream of the replaced meter are not included. Measurement will be pulled from the meter coupling on the compromised side of the line. Lowering or relocating water service lines associated with water meters is not included. Any repositioning or leveling of existing meter boxes for cosmetic appearance different than as - found condition is not included. Installation of meter re -setters or risers with the new meters is not included. Agreement for Services Page 23 of 30 Installation of check valves or other backflow prevention devices with the new meters is not included. Additional repairs, replacements, or any modifications to existing meter pits or vaults not already listed and defined above or in the meter box or vault replacement scope of works are not included. Concrete, asphalt, and sidewalk repairs due to meter access, rework of meter boxes, repair of leaks, or replacement of meters is not included. Any cutting or removal of tree roots or shrubbery so that meter can be replaced or to gain access to the meter is not included. The cost for any arborist or specialist required for this work will be provided by the Customer. Abatement of any hazardous materials or hazardous material testing is excluded. Return to Utility (RTU) is a classification given to specific water meters during construction that requires action from the Customer before the project scope can be finished. The RTU will clearly define the required action the Customer will need to address. To maintain the defined construction schedule by Installation Group, the Customer will make reasonable efforts to address all BTUs within a 2-week period from the date each specific meter or issue was classified as RTU. Throughout the construction period, Ameresco will maintain a log of all RTUs that has at a minimum date issued, date cleared, and specific action required and will review this log at the weekly construction meeting with the Customer. CUSTOMER MAINTENANCE RESPONSIBILITIES General Responsibilities Customer, at its own expense, will keep and maintain, or cause to be kept and maintained, the Meters and all equipment in as good operating condition as when delivered to the Customer hereunder, ordinary wear and tear resulting from proper use thereof alone excepted, and will provide maintenance and service and make all repairs necessary for such purpose. Responsibility for the proper maintenance, service, repair and adjustments to each Meter and related ancillary systems and equipment, including related expenses, shall transfer to the Customer on an Installation Group basis on the date of "Substantial Completion" of each Installation Group as such date is determined in accordance with the definition of Substantial Completion set forth in Section 1 of the Agreement. The Customer will be responsible for such maintenance, service, repair and adjustments for the remainder of the Term. Operation and Maintenance Manuals (O&M Manuals) will be provided to the Customer, by Ameresco. Included with the O&M manuals will be a list of maintenance responsibilities and tasks for the Customer. Operations The Customer shall operate the equipment installed hereunder in accordance with parameters noted in Agreement for Services Page 24 of 30 the manufacturers' recommendations, and any supplemental procedures supplied to the Customer by Ameresco, including those set forth in the O&M manuals. Maintenance The Customer's maintenance responsibilities include the proper operation and prompt repair and maintenance of the Meters and related ancillary systems and equipment such that they are maintained in good working order during the Term. The Customer shall repair and maintain (1) the Meters and all related equipment and other components which comprise the Meters installed hereunder and (ii) all other equipment which is attached thereto and/or is integral to the proper functioning of the Meters, including performance of the maintenance tasks, manufacturer's recommendations and supplemental procedures included in the O&M Manuals. Maintenance also refers to performing required maintenance of ancillary systems. Agreement for Services Page 25 of 30 EXHIBIT B — SCHEDULE Ate'! t 4!! t R R M!!! R!!! R R R l ]] R x! ! so 3 fiRtt l4 J3 7i 3t lfftt s r i t Agreement for Services Page 26 of 30 i s l i R i# 3 F t I 1 1 e Jgg s F; s 1 s f! F E,!! i T J jf' i Agreement for Services Page 27 of 30 EXHIBIT C SCHEDULE O VALUES 2 § Ek 22 2 2 f 2 7777 2JirI k Agreement for Services Page 28 of 30 EXHIBIT D SCOPE OF WORK — METER ACCOUNT LIST TO BE REPLACED Agreement for Services Page 29 of 30 EXHIBIT E METER ACCOUNT LIST FOR SUB -METER GPS COORDINATES NO OTHER WORK RELATED TO THESE ACCOUNTS Agreement for Services Page 30 of 30