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Ordinance No. 10,873CD41 L) I N A 14 C7 F 54 0. 1 0 1 E07 3, My MT ED I,, MQU IV 0F T I IV, CAW N, (A) U10UH. 0F ii w curs, (m MkIN, TFX,m\.S, A I TTFIC31100A IQ G Yoil% C 17 Y %, 1. ,,, ,�, N, C i I - , , R, "M FIXIAA 7T G: A FARCUITC, -1 AGITIRIMEmr wmi nFlYISKM c*c)r,-mo,.sv isic". immwFummi NIFASURIESK Am-mmomms n%N,pvnw­r A0 mmosm".T C'MY-IRMAS, 1,\�, A AL'%"1CJLjwr mow "m 1. cc1:m3 mnawnw.smum 'r I I CON ns,w m) FKAU R i , ww rs it i� rs T1 T I R7 N'�- F 10 F1 T A PQ L) (_)/ 1O0 0 L),C) L L A R S (S 7 7,4 3 S. 0(0; vimonxi c Ym E 14 14M V ISM M S 141 A I L",I M F I w F%T(� '11 I IMMA U31 Pit i F UR 'I I I Im LI'll ITC-T I \I F 1)",%T1_- 1-1 1 F J_A ims ry worm 1m 1 ) Ew 'i um c, vi % (,( M 74("J 1, ()F -1 1 M CITY' C)F HA% A ( )\Vt"� ., Sew 011 1: Imat the (AIN coqnwd OF the C. OF MqXromm, Tex�is, herK_Joy Inthcarizc.s I hc C'hy Manager to execute a Mtect I)evehipinew Agmmumoin "ith Mfinswi ('onlrol Inc., regarding energy, uf s"Id ;Wrewmew is aUnched lwremi as lOxhibb -A.'" wiml irmcc"pmwind herein Cc,�r aH wIAILI rhm the City CAnmcO of the (7by ()( B ,r my-tovv R JL11lWMi,�A_-,s Vnnd�, IImIyahle to fohn^ -on C'muroLs, Inc, K an mvikmni non No exccad S`\'1iN4 FN 001\/FFY ATIC)USAMIJ 1•0UR THIRTY 1AGH F F)C)V 1,�,�LFRS (S77,43S (M) m acco"lasice Mth the Agreemcm va"Mrized Sc,ctmon 3: T'hat PLUM"aM 10 the pr"ViSR)"S 01 Tumis IAMMI (i0\C1_RMOC1lN, C'C) C, /%,Mi0(Z1tMJ § 252.0•M, Out Mty Manager is hent-Awy Ls,rm<!oifled pvneml au&cWiat,� ta-m charq�,o cwdcr kavc)lvi OIL', a km a n i¢l C0s,4­ ol' "I Tfl,(AUSAN 1"3 _ANI) li1()/t()O IX')l_.I__,ARS 1 S25AW11Y(m) or Le". mNact w the In"% Mun Out; i1wo miginal cmuract 1111CLI WIM3� 1101 bC in1CIFCLA:-,1L',d hk)` MUA,.' dl:an 0"v,k_�nty­ (Kc JMMMMT (251w) or demeasod toy nuwc thmi twemyAlve per(mm (2515) whkout the consent a;, -oFthe contrncLor to Such c m muo i 1 4::: This ordkia"ce shall iakc ef0c; inMUMMICA)� Molrl and zlfter its, I­pa'ssal,Ie V>y C"omlcd oCTAIr,,- C'0", Wr1,. B,1 y 14� HYTIMEMUKIA. REA11 mut INNSSM3 by tive wills rmative vote oC 0, -,"C"aN, ("cmilcil of dic t'h_y of, this ale I ol wtv OF A1ym1, 20W' . AT TIH-71" )A R 7`«11 ':, (:'i vy C. k A, F, L) R " —e,. i ', . k I , ", [ , , , 1 _ , j ( F, a , , , , , , - - , " ' , rt 1 1, p , , , C I , ". , I I p Y , , _ - , I, P. , J 4 I . "', ; " , , -, :x- .v ,, , a, , 1 1 r ", \ , l . I- . T­�.�, ➢,, Exhibit "A" PERFORMANCE CONTRACTING PROJECT DEVELOPMENT AGREEMENT BETWEEN City of Baytown Johnson Controls, Inc. 2401 Market Street AND 3021 W. Bend Drive Baytown, Texas 77520 Irving, TX 75063 Johnson Controls, Inc. (JCI) and the Customer named above agree as follows: 1. Evaluation Study JCI agrees to undertake a detailed evaluation study of all facilities of the City of Baytown referenced in Exhibit "A," which is attached hereto and incorporated herein for purposes of identifying the facilities, to determine the operational expenditures and characteristics of the facilities and to identify facility improvements and operational efficiency measures, procedures and other services that could be provided by JCI in order to improve the infrastructure and reduce the operating costs of the facilities. The City of Baytown agrees to provide its complete cooperation in the conduct and completion of the study. JCI will provide to the City of Baytown a written report which will include: a) a list of specific facility improvements and operational efficiency measures that JCI proposes to install; b) a description of the operating and maintenance procedures that JCI believes can reduce operating costs at the facilities; and c) an estimate of the operating costs that will be saved by the equipment and procedures recommended in the report. 2. Professionals and Standards JCI shall keep full -time engineers licensed in the state of Texas on staff and assigned to the work for the duration of this project. Prior to commencement of the project, JCI shall forward to the City a detailed resume of the personnel that will be assigned to the project. Such personnel shall include, but not be limited to, JCI engineers. JCI shall perform all services under this Agreement with the care and skill ordinarily used by members of JCI's profession practicing under the same or similar circumstances, time and locality. JCI shall be responsible for the technical accuracy of its services and documents resulting therefrom, and the City shall not be responsible for discovering deficiencies therein. JCI shall correct such deficiencies without additional compensation. 3. Records and Data During the evaluation study, the City of Baytown will furnish to JCI upon its request, available data concerning operational expenditures for the Facilities, including the following data for the most recent three years from the effective date of this Agreement: occupancy and usage information; descriptions of any changes in the building structure or its heating, cooling, lighting, or other systems; actual utility bills supplied by the utility and other relevant utility records; descriptions of relevant operational or maintenance procedures utilized on the facilities; summary of annual expenditures for operating the facilities, copies of representative current tenant leases, if any; and prior efficiency audits or studies of the facilities or operating procedures , if any. However, the City does not guarantee the accuracy or correctness of the data so provided. 4. Preparation of Energy Savings Performance Contract Within 30 days after the submission to the City of Baytown of the report described under paragraph 1 of this Agreement, JCI will prepare and submit to the City of Baytown a Energy Savings Performance Contract to implement the facility improvements and operational efficiency measures, procedures, and services identified in the report that could reduce the Customer's overall expense in operating the Facilities. This Energy Savings Performance Contract shall be negotiated by the parties hereto pursuant to Section 2254.004, Texas Government Code. 5. Price and Payment Terms The City of Baytown agrees to pay to JCI the sum, not to exceed $77,438.00 based upon the rate schedule included hereinbelow within 60 days after the delivery to the Customer of the contract described under paragraph 4 of this Agreement and after receipt of an invoice for the same. All bills 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. Rate Schedule: However, the City of Baytown will have no obligation to pay this amount if: a) JCI and the City of Baytown enter into an Energy Savings Performance Contract; or. b) All costs (principal, interest and maintenance) incurred by the City during the term of the Energy Savings Performance Contract are greater than the guaranteed savings, avoided costs and program credits during the term; or c) JCI cannot achieve savings based upon the report described under paragraph 1 hereof or based upon the determination of the licensed professional engineer retained by the City pursuant to Section 302.005, Texas Local Government Code. 6. Insurance JCI shall procure and maintain at its sole cost and expense for the duration of the Agreement, insurance against claims for injures to person or damages to property which may arise from or in connection with the performance of the Work hereunder by JCI, its agents, representatives, volunteers, employees or subconsultants. a. JCI'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 JCI's insurance and shall not contribute to it. Further, JCI shall include all subconsultants, 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 subconsultants and assigns shall be subject to all of the requirements stated herein. 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: $1,000,000 • Products & Completed Operations Aggregate: $1,000,000 • Personal & Advertising Injury: $1,000,000 • Per Occurrence: $500,000 • Fire Damage: $50,000 • Coverage shall be at least as broad as ISO CG 00 01 10 93 • No coverage shall be deleted from standard policy without notification of individual exclusions being attached for review and acceptance. 2. Business Automobile Policy • Combined Single Limits: $1,000,000 • Coverage for "Any Auto" 3. Errors and Omissions • Limit: $500,000 for this project. • For all architects, engineers, and /or design companies • Claims -made form is acceptable • Coverage will be in force for one (1) year after construction of the Project is completed. 4. 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 B +:VIII or better. 2. Only insurance carriers licensed and admitted to do business in the State of Texas will be accepted. 3. Liability policies must be on occurrence form. Errors and Omissions can be on claims -made form. 4. 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 certified mail, return receipt requested, has been given to the City. 5. The City, its officers, agents and employees are to be added as Additional Insureds to all liability policies, with the exception of the Errors and Omissions Policy required herein for claims arising out of this Agreement. 6. Upon request and without cost to the City, certified copies of all insurance polices and /or certificates of insurance shall be furnished to the City. 7. 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 JCI. JCI shall provide copies of insurance policies required hereunder to the City on or before the effective date of this Agreement. 7. Indemnity and Release JCI 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, ARISING OUT OF, OR IN CONNECTION WITH THE WORK DONE BY JCI UNDER THIS ,CONTRACT CAUSED BY THE SOLE OR JOINT NEGLIGENCE OF JCI. IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH JCI AND THE CITY, THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY JCI TO INDEMNIFY AND PROTECT THE CITY FROM THE CONSEQUENCES OF JCI'S OWN NEGLIGENCE, WHETHER THAT NEGLIGENCE IS THE SOLE OR A CONCURRING CAUSE OF THE RESULTING INJURY, DEATH OR DAMAGE. SUCH INDEMNITY SHALL NOT APPLY, HOWEVER, TO LIABILITY ARISING FROM THE PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE OF PERSONS THAT IS CAUSED BY OR RESULTS FROM THE NEGLIGENCE OF THE CITY. IN THE EVENT THAT ANY ACTION OR PROCEEDING IS BROUGHT AGAINST THE CITY FROM WHICH THE CITY IS INDEMNIFIED, JCI FURTHER AGREES AND COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE CITY. THE INDEMNITY PROVIDED FOR IN THIS Section 7 SHALL SURVIVE THE TERMINATION 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 Contract 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. JCI assumes full responsibility for its work performed hereunder and hereby releases, 4 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 JCI's work to be performed hereunder. This release shall apply with respect to JCI's work regardless of whether said claims, demands, and causes of action are covered in whole or in part by insurance. 8. Disputes Notwithstanding anything to the contrary contained in this Agreement, the City and JCI hereby agree that no claim or dispute between the City and JCI 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 to an arbitration proceeding notwithstanding this provision, JCI consents to be joined in the arbitration proceeding if JCI's presence is required or requested by the City of complete relief to be recorded in the arbitration proceeding. 9. Termination The City, besides all other rights or remedies it may have, shall have the right to terminate this Agreement without cause upon ten (10) days' written notice from the City Manager to JCI of the City's election to do so. Furthermore, either JCI or the City may terminate this Agreement due to a breach by the other party after having given notice and a ten (10) day opportunity to cure. 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 JCI 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 against JCI; d) the dissolution of JCI; 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 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, JCI shall discontinue all services in connection with the performance of the Agreement. Within ten (10) days after receipt of the notice of termination, JCI 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, JCI shall also tender all of JCI's work product, whether complete or not, in an acceptable form and format to the City's Representitive. No final payment will be made until all work product is so tendered. Once tendered the City will pay JCI the amounts which may be due and owing within 30 days. If this Agreement is terminated for cause, JCI shall be liable forany damage to the City resulting therefrom. This liability includes any increased costs incurred by the City in completing JCI's work provided the City mitigates its damages. The rights and remedies of the City in this 5 section are in addition to any other rights and remedies provided by law or under this Agreement. 10. Miscellaneous Provisions a) This Agreement cannot be assigned by either party without the prior written consent of the other party. 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 provided the materials are kept confidential by the City to the extent allowed by law.. b) This Agreement is the entire Agreement between JCI and the City of Baytown and supersedes any prior oral understandings, written agreements, proposals, or other communications between JCI and the City of Baytown. Any change or modification to this Agreement will not be effective unless made in writing. This written instrument must specifically indicate that it is an amendment, change, or modification to this Agreement. c) JCI is an independent contractor and the City neither reserves nor possesses any right to control the details of the work performed by JCI under the terms of this Agreement. d) 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. e) 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. f) 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: CITY OF BAYTOWN Attn: City Manager P. O. Box 424 Baytown, Texas 77522 -0424 FAX: 281 - 420 -6586 For JCI: JOHNSON CONTROLS, INC. Attn: President 3021 W. Bend Drive Irving, TX 75063 FAX: 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 other party. N. g) This Agreement shall not bestow any rights upon any third party, but rather, shall bind and benefit JCI and the City only. h) 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. i) The headings used in this Agreement are for general reference only and do not have special significance. j) 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. k) 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. 1) 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. IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiple copies, each of which shall be deemed to be an original, but all of which shall constitute but one and the same Agreement on the _ day of April, 2008, the date of execution by the City Manager of the City of Baytown. JOHNSON CONTROLS, INC. By: Lisa Loupe Signature: Title: Solutions Manager City of Baytown A Signature: Title: City Manager Date: April 10, 2008 Date: April 11, 2008 7