ATTACHMENT A - SAMPLE AGREEMENT 26-189 ESCO EPID RFQ Final.pdf

Attachment A, Sample Agreement AGENCY RFQ NUMBER 26-189 ESCO EPID; OREGONBUYS SOLICITATION NUMBER S-33000-00018034 Page 1 of 14

ATTACHMENT A, SAMPLE AGREEMENT

AGENCY RFQ NUMBER 26-189 ESCO EPID; OREGONBUYS SOLICITATION NUMBER S-33000-00018034

This is a “sample” agreement only and is subject to refinement and revision as required by Oregon State Statute and Oregon Administrative Rules.

OREGON DEPARTMENT OF ENERGY -

ENERGY SERVICE COMPANY (“ESCO”) PREQUALIFICATION AGREEMENT

FOR

ENERGY PERFORMANCE CONTRACTS

This Energy Service Company (“ESCO”) Prequalification Agreement (the “Agreement”) is between the State of Oregon (“State”), acting by and through its Department of Energy, hereafter called the “Agency” and ESCO NAME, a STATE NAME & ENTITY TYPE, hereafter called the “ESCO” or “Contractor.” The Agency and the ESCO are hereafter collectively referred to in this Agreement as the “Parties” and individually as a “Party.”

Administrators of this Agreement are as follows:

ESCO AGENCY

Administrator: Administrator:

Title: Title:

Address: Address:

Phone: Phone:

Fax: Fax:

Email: Email:

Federal ID #:

The purpose of the Agreement is to fulfill the mandates of ORS 276.915 and OAR 330-130-0090 – OAR 330-130- 0100, namely to maintain a list of prequalified ESCOs available to provide energy performance contracting services under an energy performance contract (“EPC”), as defined under ORS 279A.010, for various State agency projects.

This Agreement sets forth the terms and conditions applicable to an ESCO regarding the maintenance of its prequalified status with ODOE. This Agreement does not guarantee that any EPCs will be awarded to the ESCO by any Contracting Agency as defined under ORS 279A.010. When a Contracting Agency wishes to engage the services of a prequalified ESCO for a particular project, the Contracting Agency must still comply with, and the prequalified entity must still participate in any follow-on procurement processes applicable for purposes of an EPC. Nothing in this Agreement relieves any Contracting Agency from complying with all applicable laws and regulations, including the Contracting Agency’s procurement laws and rules and ODOE’s requirements for EPC projects for state agencies under OAR 330-130-0090(3).

This Agreement shall become effective on the date the Agreement is signed by the Parties and all required State of Oregon approvals have been obtained (the “Effective Date”). No ESCO shall be considered prequalified pursuant to OAR 330-130-0090 prior to the Effective Date. Unless otherwise terminated or extended, this Agreement shall expire three years from its Effective Date. Expiration or termination of this Agreement will not result in expiration or termination of any EPC in effect at the time of this Agreement’s expiration or termination, as any such EPC will be a separate, binding contract exclusively between the Contracting Agency and the ESCO, with the Agency not being a party to that EPC. The Agreement may be renewed for one three-year period or for annual renewals that collectively cannot exceed six years, at the Agency’s sole discretion. The Agency may amend this Agreement to https://www.oregonlegislature.gov/bills_laws/lawsstatutes/2013ors276.html

AGENCY RFQ NUMBER 26-189 ESCO EPID; OREGONBUYS SOLICITATION NUMBER S-33000-00018034 Page 2 of 14 the extent permitted by applicable statutes and administrative rules. Such amendments will not be effective unless in writing and signed by the Parties.

This Agreement consists of this primary Agreement document and the following Exhibits, which are attached to this Agreement and incorporated into this Agreement by this reference:

Exhibit A: Standard Terms & Conditions Exhibit B: Scope of Services for Maintaining Prequalification Exhibit C: Qualified Personnel Exhibit D: Annual Profile Update

In the event of a conflict between two or more of the documents comprising this Agreement, the language in the document with the highest precedence shall control. The precedence of each of the documents comprising this Agreement is as follows, listed from highest precedence to lowest precedence: this primary Agreement document, without Exhibits; Exhibit A; Exhibit B; Exhibit C; and Exhibit D.

THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES ON THE SUBJECT MATTERS ADDRESSED HEREIN. THE TERMS OF THIS AGREEMENT CANNOT BE WAIVED, ALTERED, MODIFIED, SUPPLEMENTED OR AMENDED, IN ANY MANNER WHATSOEVER, EXCEPT BY WRITTEN INSTRUMENT SIGNED BY THE PARTIES AND CONTAINING ALL REQUIRED STATE OF OREGON APPROVALS. ANY SUCH WAIVER, ALTERATION, MODIFICATION, SUPPLEMENTATION OR AMENDMENT SHALL BE EFFECTIVE ONLY IN THE SPECIFIC INSTANCE AND FOR THE SPECIFIC PURPOSE GIVEN. THERE ARE NO UNDERSTANDINGS, AGREEMENTS, OR REPRESENTATIONS, ORAL OR WRITTEN, REGARDING THIS AGREEMENT EXCEPT AS CONTAINED, INCORPORATED OR REFERENCED HEREIN. ESCO, BY THE SIGNATURE BELOW OF ITS AUTHORIZED REPRESENTATIVE, HEREBY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS THIS AGREEMENT, AND AGREES TO BE BOUND BY ALL OF THIS AGREEMENT’S TERMS AND CONDITIONS. THIS AGREEMENT, AND ANY AMENDMENTS TO IT, MAY BE EXECUTED IN COUNTERPARTS (EACH OF WHICH SHALL BE AN ORIGINAL AND ALL OF WHICH SHALL CONSTITUTE BUT ONE AND THE SAME INSTRUMENT) OR IN MULTIPLE ORIGINALS. A FAXED FORM OF THIS AGREEMENT OR ANY AMENDMENT THERETO, EXECUTED BY ONE OR MORE OF THE PARTIES, WILL CONSTITUTE A COUNTERPART HEREOF, AS LONG AS THE COUNTERPART BEARING THE PARTY’S ORIGINAL SIGNATURE IS PROMPTLY TRANSMITTED TO THE OTHER PARTY AND RECEIVED BY THAT PARTY

FORTHWITH.

Agreed To and Signed By:

ESCO: Date:

Signature

Title:

Printed Name

AGENCY: Date:

Date:

Date:

AGENCY RFQ NUMBER 26-189 ESCO EPID; OREGONBUYS SOLICITATION NUMBER S-33000-00018034 Page 3 of 14

EXHIBIT A

STANDARD TERMS & CONDITIONS

1. ESCO’s Responsibilities; Representations and Warranties.

1.1.1. During the term of the Agreement, ESCO shall

obtain, hold, maintain and fully pay for all licenses and permits required by law for ESCO to conduct its business and perform the services required for purposes of prequalification and provision of energy performance contracting services; if there is no licensing requirement for the profession or services, ESCO shall be duly qualified and competent throughout the term of this Agreement.

1.1.2. Personnel, qualified by Agency under this

Agreement are listed in Exhibit C. Only those personnel identified in Exhibit C may be utilized in any energy performance contract (“EPC”) with a Contracting Agency relying upon this Agreement for purposes of prequalification.

ESCO may request to add additional personnel to Exhibit C by submitting their qualifications to Agency. If Agency-qualified personnel leave the firm, ESCO must demonstrate that the remaining and/or new personnel continue to meet the requirements of Agency for purposes of qualifications and experience. Changes to personnel must be approved by Agency in writing before they become effective. Further, agency reserves the right to review the subcontractors and sub-consultants, proposed. ESCO shall not retain a subcontractor or sub-consultant to which Agency has a reasonable objection; and

1.1.3. ESCO shall pay all sub-consultants and other

subcontractors as required by ESCO’s contracts with those sub-consultants and subcontractors. ESCO agrees that Agency has no direct or indirect contractual obligation or other legal duty whatsoever to pay the sub-consultants and other subcontractors of ESCO or otherwise ensure that ESCO makes full and timely payment to those sub-consultants and subcontractors for services performed on the project.

1.2. ESCO represents and warrants to Agency that:

1.2.1. ESCO has the power and authority to enter into and

perform this Agreement; the persons executing this Agreement on behalf of ESCO have the actual authority to bind ESCO to the terms of this Agreement;

1.2.2. When executed and delivered, this Agreement shall

be a valid and binding obligation of ESCO enforceable in accordance with its terms; the provisions of this Agreement do not conflict with or result in a default under any agreement or other instrument binding upon ESCO and do not result in a violation of any law, regulation, court decree or court order or other legal process applicable to ESCO;

1.2.3. ESCO is an experienced firm having the skill, legal

capacity, and professional ability necessary for prequalification and to perform all energy performance contracting services;

1.2.4. ESCO has the capabilities and resources necessary

to perform ESCO's obligations under this Agreement, if any;

1.2.5. ESCO is, or shall become familiar with all current

laws, rules, and regulations which are applicable to energy performance contracts as defined under ORS 279A.010;

1.3. The warranties set forth in this section are in

addition to, and not in lieu of, any other warranties provided in this Agreement, at law, or any energy performance contracts executed by the ESCO and a Contracting Agency.

2. Access to Records. For not less than three (3) years after the Agreement’s expiration or termination, Agency, the Secretary of State's Office of the State of Oregon, the federal government, and their duly authorized representatives shall have access to the books, documents, papers, and records of ESCO and the subcontractors and sub-consultants which pertain to the Agreement for the purpose of making audits, examination, excerpts, and transcripts. If, for any reason, any part of this Agreement, any project-related ESCO contract or any project-related construction contract(s) is involved in litigation, ESCO shall retain all pertinent records for not less than three years or until all litigation is resolved, whichever is longer. ESCO shall provide Agency and the other entities referenced above with full access to these records in preparation for and during litigation.

3. Indemnity.

3.1. CLAIMS FOR OTHER THAN PROFESSIONAL

LIABILITY. ESCO SHALL INDEMNIFY, DEFEND, SAVE, AND

HOLD HARMLESS THE STATE OF OREGON AND AGENCY, AND

THEIR OFFICERS, AGENTS, AND EMPLOYEES, FROM AND

AGAINST ALL CLAIMS, SUITS, ACTIONS, LOSSES, DAMAGES,

LIABILITIES, COSTS AND EXPENSES OF WHATSOEVER NATURE

RESULTING FROM OR ARISING OUT OF THE ACTS OR

OMISSIONS OF ESCO OR ITS SUB-CONSULTANTS,

SUBCONTRACTORS, AGENTS, OR EMPLOYEES UNDER THIS

AGREEMENT.

3.2. CLAIMS FOR PROFESSIONAL LIABILITY. To the fullest

extent permitted by law, and except to the extent prohibited under ORS 30.140(4), ESCO SHALL INDEMNIFY, DEFEND, SAVE, AND HOLD HARMLESS THE STATE OF OREGON AND

AGENCY, AND THEIR OFFICERS, AGENTS, AND EMPLOYEES,

FROM AND AGAINST ALL CLAIMS, SUITS, ACTIONS, LOSSES,

DAMAGES, LIABILITIES, COSTS AND EXPENSES OF

WHATSOEVER NATURE ARISING OUT OF THE

PROFESSIONALLY NEGLIGENT ACTS, ERRORS OR OMISSIONS

OF ESCO OR ITS SUB-CONSULTANTS, SUBCONTRACTORS,

AGENTS, OR EMPLOYEES IN THE PERFORMANCE OF

PROFESSIONAL SERVICES UNDER THIS AGREEMENT.

3.3. Agency Defense Requirements. Notwithstanding

the obligations under Sections 3.1 and 3.2, neither ESCO nor any attorney engaged by ESCO shall defend any claim in the name of the State of Oregon or any agency of the State of Oregon, nor purport to act as legal representative of the State of Oregon or any of its agencies, without the prior written consent of the Oregon Attorney General. Agency may, at any time and at its election, assume its own defense and settlement of any claims in the event that: it determines that ESCO is prohibited from defending the State of Oregon;

ESCO is not adequately defending the State of Oregon's interests; an important governmental principle is at issue; or it is in the best interests of the State of Oregon to do so. The State of Oregon reserves all rights to pursue any claims it may have against ESCO if the State of Oregon elects to assume its own defense.

3.4. Agency’s Actions. This Section 3 does not include

indemnification by ESCO of the State of Oregon or Agency or

AGENCY RFQ NUMBER 26-189 ESCO EPID; OREGONBUYS SOLICITATION NUMBER S-33000-00018034 Page 4 of 14 their officers, agents, and employees, for the acts or omissions of the State of Oregon, Agency or their officers, agents, and employees, whether within the scope of the Agreement or otherwise.

4. ESCO’s Status.

4.1. ESCO shall perform all services as an independent

contractor. Although Agency reserves the right to evaluate the quality of the completed performance under an energy performance contract, Agency cannot and will not control the means and manner of ESCO’s performance under such EPC. ESCO is responsible for determining the appropriate means and manner of performing the services in accordance with the terms of the EPC. ESCO, ESCO’s employees and the subcontractors and sub-consultants are not “officers, employees, or agents” of the State of Oregon or Agency, as those terms are used in ORS 30.265.

4.2. ESCO shall not have control or charge of, and shall not

be responsible for, the acts or omissions of other ESCOs or contractors under agreement with Agency or contract with a Contracting Agency. However, this provision does not in any way change ESCO’s professional responsibility to report to Agency any information, including information on the performance of ESCOs or contractors outside the control or charge of ESCO, concerning activities or conditions that have or could have an adverse effect on Agency.

4.3. ESCO is not a contributing member of the Public

Employees’ Retirement System and will be responsible for any federal, state or other taxes applicable to any compensation or payments paid to ESCO under this Agreement. ESCO will not be eligible for any benefits from any payments made under this Agreement for federal Social Security, unemployment insurance, or worker’s compensation, except as a self-employed individual. If any payment under this Agreement is to be charged against federal funds, ESCO certifies that it is not currently employed by the federal government.

5. Successors & Assignments. The provisions of this Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and assigns. After the original Agreement is executed, ESCO shall not enter into any subcontractor or sub-consultant agreements for any of the services or assign or transfer any of its interest in this Agreement, without the prior written consent of Agency.

6. Compliance with Applicable Law. ESCO shall comply with all federal, state and local laws, regulations, executive orders and ordinances applicable to the services.

7. Governing Law; Jurisdiction; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Oregon without regard to principles of conflicts of law. Any claim, action, suit or proceeding (collectively “Claim”) between Agency and ESCO that arises from or relates to this Agreement shall be brought and conducted solely and exclusively within the Circuit Court of Marion County for the State of Oregon;

provided, however, if a Claim must be brought in a federal forum, then it shall be brought and conducted solely and exclusively within the United States District Court for the District of Oregon. In no event shall this “Governing Law;

Jurisdiction; Venue” section be construed as a waiver by the

State of Oregon of any form of defense or immunity, whether based on sovereign immunity, governmental immunity, immunity based on the Eleventh Amendment to the United States Constitution or otherwise. ESCO, BY EXECUTION OF

THIS AGREEMENT, HEREBY CONSENTS TO THE IN PERSONAM

JURISDICTION OF SAID COURTS.

8. Severability. The Parties agree that if any term or provision of this Agreement is declared by a court of competent jurisdiction to be illegal or in conflict with any law, the validity of the remaining terms and provisions shall not be affected and the rights and obligations of the Parties shall be construed and enforced as if the Agreement did not contain the particular term or provision held to be invalid.

9. Force Majeure. Neither party shall be held responsible for delay or default in the performance of its obligations due to a cause beyond its reasonable control, including, but not limited to fire, riot, acts of God, terrorist acts or war where such cause was beyond such party's reasonable control. Each party shall, however, make all reasonable efforts to remove or eliminate such a cause of delay or default and shall, upon the cessation of the cause, diligently pursue performance of its obligations under the Agreement.

10. Waiver. The failure of Agency to enforce any provision of this Agreement shall not constitute a waiver by Agency of that or any other provision.

11. Ownership of Work Product. Work products that are created under EPCs will be considered the property of the Contracting Agency, and may be subject to the Oregon Public Records Law and other public information laws as set forth under the EPCs. EPCs will include provisions to protect intellectual property rights, and ownership of work products consistent with applicable law.

12. Termination.

12.1. Parties Right to Terminate by Agreement. This

Agreement may be terminated at any time, in whole or in part, by written mutual consent of the Parties.

12.2. Parties Right to Terminate for Convenience. Either

Party may, at its sole discretion, terminate this Agreement, by written notice to the other Party providing at least 30 days and specifying the termination date of the Agreement.

12.3. Agency’s Right to Terminate for Cause. Agency

may terminate this Agreement immediately, in whole or in part, upon written notice to ESCO, or such later date as Agency may establish in such notice, upon the occurrence of any of the following events:

12.3.1. ESCO fails to maintain the requirements necessary

for prequalification, including those as set forth in Exhibit B a; or

12.3.2. ESCO institutes or has instituted against it

insolvency, receivership or bankruptcy proceedings, makes an assignment for the benefit of creditors, or ceases doing business on a regular basis; or

12.3.3. ESCO fails to perform any of the provisions of this

Agreement and after receipt of written notice from Agency, does not correct such failures within the time that Agency specifies (which shall not be less than 10 calendar days, except in the case of emergency); or

12.3.4. ESCO fails to notify Agency when it has contracted

AGENCY RFQ NUMBER 26-189 ESCO EPID; OREGONBUYS SOLICITATION NUMBER S-33000-00018034 Page 5 of 14 for energy performance contracting services with a State Contracting Agency. Notification must be provided by sending a copy of the executed contract to Agency; or

12.3.5. ESCO fails to provide a copy of the TEA, PDP and

M&V report when it has performed such services under contract with a State Contracting Agency; or

12.3.6. Consultant fails to respond to Agency or State

Contracting Agency’s comments or to address deficiencies during the review process. Examples of such failures include, but are not limited to:

12.3.6.1. ESCO fails to resolve technical and program issues

and to make changes or corrections to the TEA as directed by Agency or State Contracting Agency’s comments;

12.3.6.2. The TEA lacks sufficient detail to support

recommendations (e.g. no predicted foot-candle levels if delamping was recommended);

12.3.6.3. ESCO makes calculations based on unreasonable

assumptions (e.g. predicted savings for all energy efficiency measures exceeds the energy usage of the facility); or

12.3.6.4. ESCO fails to evaluate all Facility energy using

systems and to quantify the interactive effects of changes to the Facility’s systems.

12.3.7. ESCO is determined to be not responsible by a

State Contracting Agency during its procurement for an EPC, refuses to perform services under an EPC based on a State Contracting Agency’s reluctance to commit to future contracts, the ESCO is terminated for cause under an EPC, or the following occurs:their procurement, including but not limited to the following examples:

12.3.7.1. ESCO does not achieve accurate results

(e.g. ESCO fails to meet its Energy Savings Guarantee) and they are not corrected;

12.3.7.2. ESCO fails to provide a required Energy

Savings Guarantee shortfall payment;

12.3.7.3. ESCO fails to compile needed information

for State Contracting Agency’s post-project evaluation;

12.3.7.4. ESCO fails to provide sufficient M&V; or

12.3.7.5. ESCO makes an inaccurate

representation of fact or overstates ESCO’s qualifications to a State Contracting Agency.

12.3.8. ESCO fails to retain qualified staff. ; or

12.3.9. ESCO changes control or ownership. A change in

control is deemed an assignment of rights; ESCO may not assign any of its rights or delegate any performance requirements under this Agreement; or

12.3.10. ESCO’s legal status or financial strength changes

substantially.

12.4. Cessation of Services. Upon receiving a notice of

termination, and except as otherwise directed in writing by Agency, ESCO shall immediately cease all activities under this Agreement.

13. Foreign Contractor. If ESCO is not domiciled in or registered to do business in the State of Oregon as of the Effective Date, ESCO shall promptly provide to the Oregon Department of Revenue and the Secretary of State’s Corporation Division all information required by those agencies relative to this Agreement. ESCO shall demonstrate its legal capacity to perform the services under this Agreement in the State of Oregon prior to executing this Agreement.

14. False Claims Act.

14.1. ESCO acknowledges that the Oregon False Claims Act, ORS 180.750 to 180.785, applies to any action or conduct by the ESCO pertaining to this Agreement that constitutes a “claim” (as defined by the Oregon False Claims Act, ORS 180.750(1)). By its execution of this Agreement, ESCO certifies the truthfulness, completeness, and accuracy of any statement or claim it has made, it makes, it may make, or causes to be made that pertains to this Agreement or to the Project for which the Agreement work is being performed. In addition to other penalties that may be applicable, ESCO further acknowledges that if it makes, or causes to be made, a false claim or performs a prohibited act under the Oregon False Claims Act, the Oregon Attorney General may enforce the liabilities and penalties provided by the Oregon False Claims Act against ESCO. Nothing in this section or this Agreement may be construed as limiting or derogating from any authority granted the Oregon Attorney General under

180.750 to 180.785.

14.2. ESCO shall immediately report in writing, to Agency, any credible evidence that a principal, employee, agent, or subcontractor of the ESCO, or any subgrantee or other person, has made a false claim or committed a prohibited act under the Oregon False Claims Act, or has committed a criminal or civil violation of laws pertaining to fraud, bribery, gratuity, conflict of interest, or similar misconduct in connection with this Agreement or moneys paid by Agency under this Agreement.

14.3. ESCO must include all subsections of this section in

each subcontract or subgrant the ESCO may award in connection with the performance of this Agreement. In doing so, ESCO may not modify the terms of those subsections, except to identify the subcontractor or sub-grantee who will be subject to those provisions.

AGENCY RFQ NUMBER 26-189 ESCO EPID; OREGONBUYS SOLICITATION NUMBER S-33000-00018034 Page 6 of 14

EXHIBIT B

SCOPE OF SERVICES FOR MAINTAINING PREQUALIFICATION

1. Qualifications. To have been listed as an Agency-qualified ESCO, ESCO must have (a) demonstrated a technical, operational, financial and managerial capability for, and a prior record of success in, identifying and assessing needs for and recommending, designing and constructing, fabricating, assembling or installing fixtures, furnishings or systems that meet the requirements of an energy performance contract; (b) developed expertise in measuring and verifying energy use and reductions in energy use, expertise in identifying greenhouse gas emissions and methods for reducing greenhouse gas emissions or expertise in methods of providing savings, reductions or other benefits that an authorized state agency may seek through an energy performance contract; and otherwise met the standards for prequalification set forth in the Agency’s Request for Qualifications - RFQ NUMBER 26-189 ESCO EPID; OREGONBUYS SOLICITATION NUMBER S-33000-00018034.

2. To remain listed as an Agency-qualified ESCO, ESCO must:

a. Maintain the qualifications, capabilities, expertise, certifications and licensure the ESCO used to qualify under the Agency’s prequalification procurement

i. ESCO acknowledges and agrees that Agency deemed ESCO qualified, in part because of the special qualifications of ESCO’s Key Personnel. Requests to change Key Personnel must be submitted to Agency in writing and no such change shall be effective until Agency approves the change in writing.

ESCO personnel deemed qualified by Agency are listed by name in Exhibit C. Only those staff members authorized by Agency may complete Services under this subsequent EPCs with Contracting Agencies.

Agency reserves the right to disqualify individual staff members if a pattern of poor performance is shown.

ii. ESCO must submit an Annual Profile Update (included as Exhibit D) each year, within one month of the anniversary of this Agreement’s Effective Date.

b. Notify Agency when it has contracted with a State Contracting Agency, by sending a copy of ESCO and State Contracting Agency’s executed EPC, to Agency.

c. Provide to Agency, copies of any Technical Energy Audits (“TEA”), Project Development Plans (“PDP”) or Measurement and Verification (“M&V”) reports it creates for State Contracting Agencies using this process.

d. Agency may review TEA, PDP, and M&V documents and provide comments to ESCO. ESCO shall respond to feedback and make changes or corrections to the TEA as directed by Agency during Agency’s review process, if applicable.

As long as ESCO remains qualified, it is eligible to enter into EPCs directly with Authorized State Agencies, as defined in ORS 276.905(2), via the Non-Competitive Selection procedure set forth in OAR Chapter 137, Division

149. Additionally, as long as ESCO remains qualified, it is eligible to enter into EPCs with state contracting agencies, pursuant to its applicable competitive procurement procedures set forth under ORS 279A, ORS 279C, and any applicable implementing regulations, including, but not limited Oregon Department of Justice Model Public Contracting rules (OAR 137-049). Under each applicable procurement, ESCOs will be selected for EPCs directly by the Contracting Agencies seeking EPC work.

This Agreement allows Contracting Agencies to choose an ESCO from a pool of qualified ESCOs but does not guarantee selection for EPC projects.

3. EPC Services. ESCO will provide an array of services for Contracting Agencies under EPCs. An overview of services is included below; however Contracting Agencies’ requests will vary according to the services needed

AGENCY RFQ NUMBER 26-189 ESCO EPID; OREGONBUYS SOLICITATION NUMBER S-33000-00018034 Page 7 of 14 for their individual project and contracting needs. EPCs resulting from this process will contain specific statements of work and budgets for those services requested by the Contracting Agencies. EPCs may include any tasks reasonably related to the following services :

• Facility profiling;

• Energy baseline studies;

• Preliminary design, development and implementation of energy conservation measures into an existing building or structure, as a distinct component of a major remodel of a building under a separate contract

• Investment Grade Audit phase services

• Project Development Plan phase services

• Energy conservation measure design and implementation phase services

• Measurement and Verification phase services

• Services related to an Energy Performance Contract as defined in Oregon Revised Statute 279A.010 and Oregon Administrative Rules Chapter 137, Division 49

The EPC process takes a phased approach. As Contracting Agencies contract for services, they may choose one ESCO to complete all phases of their EPC project, or they may contract for fewer phases. ESCO will take all actions reasonably necessary to complete each phase in the most economical and timely manner possible, with minimal interruption to the ongoing business and the occupants of the Facility. The phases involved in an EPC project include the following:

a. Phase 1, Technical Energy Audit (TEA), or Investment Grade Audit Phase: a comprehensive investment grade energy audit that seeks to identify all cost-effective investment opportunities through a combination of engineering analysis of energy-using systems and economic analysis of possible energy saving measures.

b. Phase 2, Project Development Plan (“PDP”): the last step of the analysis phase prior to designing the construction or design-build contract. The ESCO completes more extensive assessment of the agreed-upon energy conservation measures (“ECM”) for the project, including preliminary design, and prepares an overall report or plan summarizing the Qualified Energy Service Company’s Work during this secondary phase of the project and otherwise explaining how the agreed-upon ECMs will be implemented during the design and construction phase (ECM Design and Implementation). The purpose of the PDP is to take the measures from the Investment Grade Audit Phase that have been selected for implementation and further develop the projects prior to implementation.

c. Phase 3, Energy Conservation Measure (ECM) Design and Implementation Phase: the ESCO completes any plans and Specifications required to implement the ECMs that have been agreed to, and the ESCO performs all fabrication, construction, assembly or installation of the ECMs, and provides commissioning, construction administration and related Personal Services or Work for such implementation.

Commissioning includes verification of system installation and operating parameters, training of operations and maintenance staff, providing equipment manuals and documentation, and all warranty information.

d. Phase 4, Measurement & Verification (“M&V”): the examination of installed ECMs using the International Performance Measurement and Verification Protocol (“IPMVP”), or any other comparable protocol or process, to monitor and verify the operation of energy-using systems post-installation. During this phase, the ESCO revisits the Facility to check actual performance.

AGENCY RFQ NUMBER 26-189 ESCO EPID; OREGONBUYS SOLICITATION NUMBER S-33000-00018034 Page 8 of 14

4. Standards and Requirements. In addition to any requirements contained in individual EPCs, ESCO shall comply with the following standards and general requirements that are applicable to all EPCs:

a. STANDARDS

i. Sustainability: ESCO shall comply with the Oregon Department of Administrative Service (“DAS”) Sustainability Facilities Standards and Guidelines policy number 125-6-010:

http://www.oregon.gov/DAS/EAM/docs/1256010.pdf

ii. SEED Compliance: During the course of a State agency’s ESPC project, ESCO shall prepare a comprehensive State Energy Efficient Design (“SEED”) analysis of the project and provide all other services for the project that are required under Agency’s SEED Program, consistent with the requirements of ORS 276.900 through 276.915 and OAR 330-130-0010 through 330-130-0100, as applicable to the project. When completed, the project shall exceed the State building code requirements for energy efficiency by 20 percent or more, and shall be a “model of energy efficiency” as that term is described in the above-referenced administrative rules.

iii. Green Energy Technology: For public buildings, designs must include green energy technologies based on at least 1.5 percent of the construction costs (if applicable per ORS 279C.527 through 279C.528).

iv. Oregon Building Performance Standard Program (OR BPS): ESCO shall ensure that EPC services can be used to satisfy compliance with OR BPS by being aware of the building’s Energy Use Intensity target and its trends in Energy Use Intensity, performing ASHRAE Level 2 audits that can be used to meet OR BPS compliance requirements, and ensuring Life Cycle Cost Assessments meet OR BPS specifications.

The standards, manuals, directives and other procedural guidance listed herein are not exhaustive and may not include all applicable standards for a given EPC project. ESCO shall be responsible for determining all applicable practices and standards to be used in performing energy performance work and related services.

ESCO shall inform and demonstrate to Agency if standards, directives or practices required by Agency are insufficient, in conflict with applicable standards, or otherwise create a problem for the ESCO process. Should the requirements of any reference, standard, manual or policy referenced in this Agreement or an EPC conflict with another, ESCO shall request Agency to resolve the conflict in writing. Unless specified otherwise in an EPC, the most current version of applicable standards, manuals, directives and other procedural guidance shall apply. ESCO must immediately advise Agency of any construction that ESCO knows, or with the exercise of professional care should know, fails to conform to the federal or State standards applicable to construction of the project.

b. SOFTWARE REQUIREMENTS

i. ESCO shall produce deliverables that are fully compatible, readable and useable by Contracting Agency, requiring no modification or translation, as further specified in the EPC. No loss of data integrity or accuracy shall result from any transfer of data. Compressed data shall be in a "self-expanding executable" format.

ii. ESCO shall deliver all work products in the format(s) required by the Contracting Agency, as specified in the EPC. ESCO may propose alternative software for consideration and acceptance by Contracting Agency.

http://www.oregon.gov/DAS/EAM/docs/1256010.pdf

AGENCY RFQ NUMBER 26-189 ESCO EPID; OREGONBUYS SOLICITATION NUMBER S-33000-00018034 Page 9 of 14

c. PROFESSIONAL LICENSES, REGISTRATIONS AND QUALIFICATIONS

i. ESCO and its sub-consultants must be duly licensed to perform the energy performance contracting services, as required by the applicable Oregon Revised Statutes, Oregon Administrative Rules, and other applicable laws. ESCO’s personnel and sub-consultant personnel must be duly licensed to perform all services that they will be performing under a resulting EPC, or must be performing such services under the "responsible charge" of a person so licensed (as that term is defined under ORS Chapter 672), or must be otherwise exempt from any licensing requirements applicable to the services being performed.

ii. Contracting Agencies may require ESCO’s personnel to demonstrate competency in the particular area/ discipline to which they are assigned prior to award or execution of an EPC.

d. GENERAL REQUIREMENTS.

i. Endorsement of Data: ESCO shall place its official Oregon Registered Engineer or Registered Architect seal and signature on all engineering or architectural design drawings and specifications furnished to a Contracting Agency, as well as any other materials where professional standards require such seal and signature, as specified under an EPC.

ii. Safety Equipment: ESCO shall provide and use all safety equipment, including but not limited to hard hats; safety vests; and clothing if required by State or federal regulations and policies and procedures for the Services under the EPC.

iii. Personnel, Materials and Equipment: ESCO shall provide competent personnel and shall furnish all supplies, equipment, tools and incidentals required to accomplish the work, as specified under an EPC All equipment and tools shall be in good operating condition and shall be kept in proper adjustment throughout the duration of any established EPCs. All materials and supplies shall be of good quality and suitable for the work set forth under the EPC.

e. PROJECT COOPERATION

i. ESCO acknowledges that Contracting Agencies may have separate contracts with other entities (e.g.

contractors, consultants or governmental agencies) involved with EPC projects. ESCO shall support the Contracting Agencies’ efforts to create and maintain a cooperative working relationship among other entities involved in the projects, and their respective representatives, so as to further the interests of Agency and the Contracting Agencies in the EPC projects being successfully completed on time and within budget.

ESCO shall only be responsible for those services directly assigned to ESCO (or its sub-consultants) through an EPC.

Any work that is dependent upon receiving information, resources, assistance, or cooperation from a separately contracted or otherwise relevant entity shall be monitored by ESCO.

Compensation. Contracting Agencies will determine the method of compensation for each EPC. ESCO shall complete all Services to Contracting Agencies’ satisfaction. If a Contracting Agency, in its sole discretion, determines that ESCO’s Services are unacceptable, Contracting Agency will notify ESCO pursuant to the terms of the EPC.

AGENCY RFQ NUMBER 26-189 ESCO EPID; OREGONBUYS SOLICITATION NUMBER S-33000-00018034 Page 10 of 14

EXHIBIT C

QUALIFIED PERSONNEL

Only those staff members identified in this Exhibit C are authorized to provide services under this Agreement and through subsequent EPCs between ESCO and State Contracting Agencies. Throughout the term of this Agreement and any established EPCs, ESCO shall provide updated information (annually as required and if requested by Agency or State Contracting Agency) to demonstrate the continuing qualifications of any proposed staff for EPC projects.

Role Qualified Personnel Energy Auditor Engineering Design Construction Management Commissioning Post-Construction Monitoring Project Manager

Qualified personnel shall not delegate performance of any management powers or other responsibilities without first obtaining Agency’s written consent. Further, ESCO shall not reassign or transfer any Key Personnel to other duties or positions such that any Key Person is no longer available to provide Contracting Agencies with their expertise, experience, judgment, and personal attention.

ESCO can seek changes to this list by providing a written request to Agency. Changes will become effective upon ESCO’s receipt of Agency’s written acceptance of the proposed change(s). Changes to this list of qualified personnel members can be affected without an amendment to this Agreement. In the event that the aggregate proposed substitutions comprise 20 percent or more of the prequalified Key Personnel, Agency reserves the right to require ESCO to resubmit its entire Statement of Qualifications.

In the event ESCO requests that Agency approve a reassignment or transfer of a Key Person, the following applies:

• Agency shall have the right to interview, review the qualifications of, and approve or disapprove the proposed replacement(s) for the Key Person.

• Any substitute or replacement for a Key Person must be approved in writing by Agency (email is acceptable).

Upon Agency’s approval, the substitute shall be deemed to be a Key Person under this Agreement and any subsequent EPCs.

ESCO agrees that the time associated with the transfer of knowledge and information for a substitute or replacement Key Person will not be a cost borne by any Contracting Agency and shall not be billed to any Contracting Agency. This includes labor hours spent reviewing project documentation, participation in meetings with personnel associated with the EPC project, or participating in site visits to become familiar with the EPC project.

AGENCY RFQ NUMBER 26-189 ESCO EPID; OREGONBUYS SOLICITATION NUMBER S-33000-00018034 Page 11 of 14

EXHIBIT D

ANNUAL PROFILE UPDATE

ESCO must submit an Annual Profile Update using the following format, each year within one month of the anniversary of this Agreement’s Effective Date.

1. GENERAL FIRM INFORMATION

Firm Name:

Mailing Address:

Physical Address:

Oregon CCB Number:

*NOTE: If your firm is currently under licensure suspension by any regulatory entity, this Agreement will be terminated.

Names, titles, phone numbers and Email addresses of two principal contact persons:

Name Title

Phone Email

Name Title

Phone Email

2. TWO-YEAR SUMMARY OF CONTRACT DOLLAR AMOUNTS OF ENERGY PERFORMANCE CONTRACTING FOR

YOUR FIRM:

20 : $ 20 : $

Estimate of total value for all energy-related contracts that are active with your company:

$ (total value) as of (date).

3. LAWSUIT INVOLVEMENT

Has your firm been involved in a construction-related lawsuit (other than labor or personnel litigation) during the past year? _____Yes _____No. If yes, please explain in detail the nature of the claim, circumstances, amount in dispute, date suit was filed, and the outcome of the case.

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4. CONSTRUCTION ARBITRATION INVOLVEMENT

Has your firm been involved in any construction arbitration demands, or have any liens been placed against your firm during the past year? _____Yes _____No. If yes, identify the nature of the claim, amount in dispute, parties involved, and ultimate resolution of the proceeding.

5. NATIONAL LABOR RELATIONS BOARD OR SIMILAR INVOLVEMENT

Has your firm been involved in any lawsuits, administrative proceedings or hearings involving the National Labor Relations Board, State of Oregon Bureau of Labor and Industries, or a similar state or federal agency during the past year? _____Yes _____No. If yes, identify the nature of the claim and the ultimate resolution of the proceeding.

6. OSHA-TYPE PROCEEDINGS

Has your firm been involved in any lawsuits, administrative proceedings or hearings involving the Occupational Safety and Health Administration or a similar state or federal agency during the past year, regarding the safety of one of your firm’s projects? _____Yes _____No. If yes, identify the nature of the claim and the ultimate resolution of the proceeding.

7. BANKRUPTCY INVOLVEMENT

Has your firm, or any of its parents or subsidiaries, ever had a bankruptcy petition filed in its name, voluntarily or involuntarily? _____Yes _____No. If yes, explain in detail the circumstances, date the protection order was filed and the resolution of the case (or current status, if still ongoing).

8. FINANCIAL INFORMATION

a. Statement of Financial Conditions Attach the most recent audited Statement of Financial Conditions, including balance sheet, income statement and statement of cash flows.

b. Contact Information Provide the name, address, and phone number of the firm(s) that prepared the financial statements.

Name:

Address:

Phone:

AGENCY RFQ NUMBER 26-189 ESCO EPID; OREGONBUYS SOLICITATION NUMBER S-33000-00018034 Page 13 of 14

c. Past Financial Statements

Provide an audited annual financial statement for the last year.

d. Insurance and Bonding Capacity If your bonding limits or capacity have changed since you submitted your original proposal or last update, attach a letter or other signed documentation from a surety company authorized to transact business in Oregon stating your firm’s updated bonding limits or capacity for EPC projects (performance and payment bonds).

9. PERSONNEL QUALIFICATIONS

If any of the information in this section has changed since you submitted your original proposal or last update, submit your updated information using the following outline:

a. Full-Time Personnel

Indicate the number of full-time personnel employed by your firm. Also, specifically indicate the current number of Oregon staff that will be dedicated to these EPC projects. If staff for Oregon projects will come from out of state, please identify these staff members and explain how their travel costs will be covered.

b. Qualifications and Experience of Key Personnel Identify personnel who will have the primary responsibility for each task and phase of an EPC project including technical energy analysis (energy auditor), engineering design, construction management, construction, training, and post-construction monitoring (the “Key Personnel”).

Create a table that forms a concise summary representing all Key Personnel, in a format similar to the table shown below.

Role Name Education level

Professional Designations

# EPC projects completed in this role

# Years experience in this role

# Years at this firm

Energy Auditor* Engineering Design Construction Management

Commissioning** Post-Construction Monitoring

Project Manager

* requires 4 years of full-time equivalent experience with technical degree or 6 years of full-time equivalent experience without technical degree; should also hold as least one of the certifications that would allow them to qualify as a Qualified Energy Auditor under the Oregon Building Performance Standard

** requires 6 years of full-time equivalent experience with technical degree or 10 years of full-time equivalent experience without technical degree

For each of the individuals listed, include a brief paragraph that includes: name, title, intended roles and responsibilities for the duration of the ESCO Agreement, educational background, specific qualifications related to roles and responsibilities, past relevant experience, number of

AGENCY RFQ NUMBER 26-189 ESCO EPID; OREGONBUYS SOLICITATION NUMBER S-33000-00018034 Page 14 of 14 years of relevant experience, supervisory responsibilities (if relevant to role), list of projects the individual was associated with during the last five (5) years including type of project and project cost, as well as a copy of the individual’s resume.

Finally, include an organizational chart of the proposed project team, including all Key Personnel at a minimum.

c. Areas of Expertise List all areas of your firm’s expertise related to potential energy and water improvements in facilities. Include specialized areas of expertise that might be relevant to an EPC project (energy management control systems, renewable energy system application or rehabilitation, lighting design, etc.). Also describe the professional and skilled trades that your firm customarily performs using in-house employees.

d. Subcontractors Describe the nature of construction-related work generally conducted by subcontractors and discuss your flexibility in selecting subcontractors local to Contracting Agencies’ geographic areas.

Discuss the areas of expertise that these firms will provide for the EPC projects. List all subcontractors that your firm has used for EPC projects in the last three (3) years. If your firm has used more than 15 subcontractors, list the most recent 15 subcontractors.

e. Sub-consultants Identify any sub-consultants your firm plans to use for EPC projects, as well as categories of technical services or design-related services that will be performed by sub-consultants. Discuss the areas of expertise that these firms will provide for the EPC projects. List all sub-consultants that your firm has used for EPC projects in the last three (3) years. If your firm has used more than 15 sub-consultants, list the most recent 15 sub-consultants.

f. Key Personnel References Include three (3) references for each of the Key Personnel identified in Section 9, above: one (1) from an owner, one (1) from a sub-consultant and one (1) from a subcontractor. The references should be from projects of varying size, scope and complexity. Agency reserves the right to investigate references including customers other than those listed in Proposers’ submissions.