HomeMy WebLinkAboutCAG2022-153 - Original - Washington State Department of Enterprise Services - HVAC Energy Program - 04/22/22 FOR CITY OF KENT OFFICIAL USE ONLY
Sup/Mgr:
Agreement Routing Form DirAsst:
•kkv For Approvals,Signatures and Records Management Dir/Dep:
KENT This form combines&replaces the Request for Mayor's Signature and Contract Cover (optional)
WASHINGTON Sheet forms. (Print on pink or cherry colored paper)
Originator: Department:
Leah Bryant Parks, Recreation & Community Services
Date Sent: Date Required:
> 04/13/2022 ASAP
0
QAuthorized to Sign: Date of Council Approval:
Q Mayor or Designee
Budget Account Number: Grant? Yes o
N/A
Budget? Yes�No Type- N/A
Vendor Name Category:
WA State Department of Enterprise Services Interlocal
Vendor Number: I Sub-Category:
421846 Other
0
Project Name: HVAC - Energy Program
cProject Details: Energy service for specific energy/utilitiy conservation
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(11.111 Basis for Selection of Contractor:
E Agreement Amount: Interlocal Agreement
� *Memo to Mayor must be attached _
h- Start Date: Termination Date: 12/31/2026
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a Local Business? Yes F-/—]No*If meets requirements per KCC 3.70.100,please complete"Vendor Purchase-Local Exceptions"form on Cityspace.
Business License Verification: ❑Yes In-ProcessE]Exempt(KCC 5.01.045)
Notice required prior to disclosure? Contract Number:
Yes❑✓ No CAG2022-153
Comments:
1A No dollar amount associated with this ILA at this time.
a
0
� c
d 4/19/22 - returned to originator for fully
� executed copy- M.M. 3111.
Date Received:City Attorney: 4/19/22 Date Routed:Mayor's Office City Clerk's Office 4/19/22
adccW22373_7_20 Visit Documents.KentWA.gov to obtain copies of all agreements
rev.20210513
State of Washington INTERAGENCY AGREEMENT
ENERGY PROGRAM
Department of Enterprise Services
P.O. Box 41476 IAA No.: K7537
Olympia, WA 98504-1476
City of Kent
400 West Gowe St. Date: March 21, 2022
Kent, WA 98032
INTERAGENCY AGREEMENT
BETWEEN
CITY OF KENT
AND
WASHINGTON STATE DEPARTMENT OF ENTERPRISE SERVICES
Pursuant to RCW chapter 39.34 and RCW chapter 39.35C, this Interagency Agreement (Agreement) is
made and entered into by and between the State of Washington acting by and through the Energy
Program of the Department of Enterprise Services, a Washington State governmental agency("Enterprise
Services") and City of Kent, a Washington State governmental agency ("Client Agency") and is dated and
effective as of the date of the last signature.
RECITALS
A. Enterprise Services,through its Energy Program ("Energy Program"), helps owners of public facilities
reduce energy and operational costs. The Energy Program is a national leader in developing and
managing energy savings performance contracts that help reduce energy and operational costs in
publicly-owned facilities.
B. Upgrading to energy efficient infrastructure helps reduce long-term operations and maintenance
costs. This allows owners to be better financial stewards while achieving their mission, so that
Washington is a better place to live, learn, and work.
C. Acting as the owner's advocate, the Energy Program delivers professional expertise and contract
management services. By leveraging capital investments, owners can achieve efficiencies, improve
facilities, and reduce carbon emissions in their publicly-owned facilities. Energy Program also creates
value to owners by managing risk through guaranteed total project costs, equipment performance,
and energy savings.
D. Client Agency, an owner of a public facility, desires to contract with Energy Program to access and
obtain certain Energy Program Services.
E. The purpose of this Agreement is to establish a vehicle for Energy Program to provide future
energy/utility conservation project management services to Client Agency and to authorize the
development of the energy services proposal in a cost-effective, efficient manner.
INTERAGENCY AGREEMENT No.K7537 Page 1
(9-10-2018)
AGREEMENT
Now THEREFORE, in consideration of the mutual covenants and agreements set forth herein, the parties
agree as follows:
1. TERM. The term of this Agreement commences on the date of the last signature and ends December
31, 2026.
2. STATEMENT OF WORK.
A. ENERGY PROGRAM. Energy Program agrees to provide the following Services:
i. Upon request by Client Agency for energy services for a specific Energy/Utility
Conservation Project(s), the Parties shall execute an amendment to this
Agreement to specify the project and associated project management fees as set
forth by Attachment B. Enterprise Services shall furnish necessary personnel and
services as specified and set forth in Attachment A,Project Management Services
Scope of Work.
ii. Assist in Dispute Resolution. Dispute resolution is an ongoing process throughout
the project. However,this assistance does not include formal dispute resolution,
arbitration or legal advice or representation in any legal action, and does not
include legal fees and costs related to any dispute. Formal dispute resolution
begins when a written claim is received demanding arbitration or other legal
process is received. All formal dispute fees and costs will be borne separately by
Client Agency. The Attorney General cannot and will not represent or advise a
non-state agency.
B. CLIENT AGENCY. Client Agency agrees to the following:
i. Will conform to the protocols of this Agreement, including Enterprise Services'
General Conditions for Washington State Energy Savings Performance
Contracting ("General Conditions"), and as supplemented.
ii. Will conform to the requirements of the General Conditions for timely processing
and approval of agreed upon changes to construction contracts involving cost,
and for payment.
iii. Will conform to the following guidelines for communications between Client
Agency, Enterprise Services and ESCOs (Energy Services Company) through the
design, construction and post-construction phases as outlined below:
a) Communications between Client Agency, Energy Program Project
Manager ("PM") and ESCO shall go through the PM. The PM may
authorize exceptions for specific projects or situations. The PM may
authorize the ESCO to communicate directly with Client Agency
personnel to expedite the design and to avoid communication delays.
This action does not authorize additional work, change in scope, or
exclude copying all communications between ESCO and Client
Agency to the PM.
b) All drawings, specifications, reports, and project correspondence
must contain the State Project Number and suffix.
■ The State Project Number consists of the fiscal year and a
numerical sequence number,for example 2018-024,followed
by an alphabetical suffix.
INTERAGENCY AGREEMENT No.K7537 Page 2
(9-10-2018)
■ Professional services agreements have suffixes A through F,
for example 2018-024 A.
■ Construction contracts have suffixes G through Z,for example
2018-024 G.
iv. All identification and monitoring of documentation required by the funding
source shall remain the responsibility of Client Agency.
3. COMPENSATION AND REQUIREMENTS.
A. COMPENSATION. Compensation under this Agreement Shall be by amendment to this Agreement
for each authorized project. Each amendment shall include a payment schedule for the specific
project.
i. Project Management Services Scope of Work (Attachment A): For project
management services provided by Energy Program, Client Agency shall pay
Enterprise Services a Project Management Fee for services based on the total
project value (including Washington state sales tax) per the Project Management
Fee Schedule set forth in Attachment B.
ii. Termination Fee: If Client Agency, after authorizing an investment grade audit
and energy services proposal, decides not to proceed with an energy/utility
conservation project that meets Client Agency's cost effective criteria, then the
Client Agency will be charged a termination fee as set forth in Project
Management Fee Schedule. The termination fee shall be based on the estimated
total project value outlined in the energy services proposal prepared by the ESCO
as set forth in Attachment B.
iii. Measurement&Verification Services ("M&V") Scope of Work (Attachment Q If
M&V are requested by Client Agency beyond the first three years following the
notice of commencement of energy cost savings, Client Agency shall pay
Enterprise Services$2,000.00 annually for each year that such M&V are provided.
B. PAYMENT FOR ESCO SERVICES. In the event that Client Agency enters into a contract with an Energy
Program pre-qualified ESCO, pursuant to an Enterprise Services Master Energy Services Agreement
for ESCO Services, Client Agency shall make payment for such contracted services directly to the
ESCO, after Energy Program has reviewed and sent such invoices to Client Agency for payment.
C. FURTHER ASSURANCES. Client Agency shall provide the ESCO with any additional necessary or
desired contract language to comply with Client Agency's obligations pertaining to its use of
federal, state, or other grants, funding restrictions, or unique contract/entity requirements. The
ESCO and their subcontractors are required to comply with all applicable federal regulations and
reporting procedures.
D. MANAGING COMPLIANCE WITH STATE AND FEDERAL LAW. In all ESCO project agreements and contracts
pertaining to this Agreement, Energy Program will require ESCO's compliance with applicable
federal and state laws and state policies including, but not limited to,the following:
1. RCW Title 39 and 43
2. ADA Requirements
3. Buy America
4. Davis-Bacon
5. Prevailing Wage
6. DBE Participation
7. Apprentice Participation
INTERAGENCY AGREEMENT No.K7537 Page 3
(9-10-2018)
Upon request by Client Agency, Energy Program will collect and provide the weekly-certified
payroll to Client Agency. Client Agency, however,shall remain responsible for any documentation
required by Client Agency's funding source. All federal verification, investigation, survey,
reporting and enforcement requirements when there is a possible violation shall remain the
responsibility of the federal grant recipient (Client Agency) unless negotiated by Energy Program
and added by amendment to this Agreement. In the event that Energy Program becomes aware
of a possible violation, it will notify Client Agency.
4. INVOICES AND BILLING.
A. BILLING PROCEDURE. Enterprise Services shall submit invoices to Client Agency upon substantial
completion and notice of commencement of energy cost savings of each authorized project,
unless an amendment specifies special billing conditions and timeline. Substantial completion of
the project will include the delivery and acceptance of the notice of commencement of energy
cost savings issued by the energy services company. Each invoice will clearly indicate that it is for
the services rendered in performance under this Agreement and shall reflect this Agreement and
Amendment number. Energy Program will invoice for any provided services within sixty(60)days
of the expiration or termination of this Agreement.
B. PAYMENT PROCEDURE. Client Agency shall pay all invoices received from Enterprise Services within
thirty(30) days of receipt of properly executed invoice vouchers.
C. BILLING DETAIL. Each invoice submitted to Client Agency by Enterprise Services shall include
information as is necessary for Client Agency to determine the exact nature of all expenditures.
At a minimum,the invoice shall reference this Agreement and include the following:
■ The dates) such services were provided
■ Brief description of the services provided
■ Total invoice amount
D. BILLING ADDRESS. Invoices shall be delivered to Client Agency electronically to:
Email: wmoore@kentwa.gov
5. AGREEMENT MANAGEMENT. The parties hereby designate the following Agreement administrators as
the respective single points of contact for purposes of this Agreement, each of whom shall be the
principal contact for business activities under this Agreement. The parties may change administrators
by written notice as set forth below. Any notices required or desired shall be in writing and sent by
U.S. mail, postage prepaid, or sent via email, and shall be sent to the respective addressee at the
respective address or email address set forth below or to such other address or email address as the
parties may specify in writing:
Enterprise Services Client Agency
Attn: Bei Zhang, PE Attn: Will Moore
Energy Project Manager Facilities Superintendent
Energy Program City of Kent
Washington Dept. of Enterprise Services 400 West Gowe St.
PO Box 41476 Kent,WA 98032
Olympia, WA 98504-1476 Tel: (206)445-3761
Tel: (360) 701-8431 Email: wmoore@kentwa.gov
Email: bei.zhang@des.wa.gov
INTERAGENCY AGREEMENT No.K7537 Page 4
(9-10-2018)
Notices shall be deemed effective upon the earlier of receipt, if mailed, or, if emailed, upon
transmission to the designated email address of said addressee.
The Client Agency representative shall be responsible for working with Energy Program, approving
billings and expenses submitted by Energy Program, and accepting any reports from Energy Program
or ESCO.
The Energy Program representative shall be the contact person for all communications regarding the
conduct of work under this Agreement.
6. RECORDS.
A. AGREEMENT AVAILABILITY. Prior to Its entry into force,this Agreement shall be posted on the parties'
websites or other electronically retrievable public source as required by RCW 39.34.040.
B. RECORDS RETENTION. Each party shall maintain records and other evidence that sufficiently and
properly reflect all direct and indirect costs expended by either party in the performance and
payment of the services. These records shall be subject to inspection, review, or audit by
personnel of both parties,other personnel duly authorized by either party,the Office of the State
Auditor,and officials authorized by law. Such records shall be retained for a period of six(6)years
following expiration or termination of this Agreement or final payment for any service placed
against this Agreement,whichever is later; Provided, however,that if any litigation,claim,or audit
is commenced prior to the expiration of this period, such period shall extend until all such
litigation, claims, or audits have been resolved.
C. OWNERSHIP. Records and other information, in any medium, furnished by one party to this
Agreement to the other party, will remain the property of the furnishing party, unless otherwise
agreed. The receiving party will not disclose or make available this material to any third party
without first providing notice to the other party and allowing ten (10) business days in which to
file, at its sole expense, a motion seeking a protective order, or other legal action. Each party will
utilize reasonable security procedures and protections to assure that records and information
provided by the other party are not erroneously disclosed to third parties.
D. PUBLIC RECORDS. This Agreement and all related records are subject to public disclosure as required
by RCW 42.56,the Public Records Act(PRA). Neither party shall release any record that would, in
the judgment of the party, be subject to an exemption from disclosure under the PRA, without
first providing notice to the other party and allowing ten (10) business days in which to file, at its
sole expense, a motion seeking a protective order, or other legal action.
7. RESPONSIBILITY OF THE PARTIES. Each party to this Agreement assumes responsibility for claims and/or
damages to persons and/or property resulting from any act or omission on the part of itself, its
employees, or its agents. Neither party assumes any responsibility to the other party for any third
party claims.
8. DISPUTE RESOLUTION. The parties shall use their best, good faith efforts cooperatively and
collaboratively to resolve any dispute that may arise in connection with this Agreement as efficiently
as practicable, and at the lowest possible level with authority to resolve such dispute. The parties
shall make a good faith effort to continue without delay to carry out their respective responsibilities
under this Agreement while attempting to resolve any such dispute. If, however, a dispute persists
regarding this Agreement and cannot be resolved, it may be escalated within each organization. In
such situation, upon notice by either party, each party, within five (5) business days shall produce its
description of the dispute in writing and deliver it to the other party. The receiving party then shall
have three (3) business days to review and respond in writing. In the event that the parties cannot
INTERAGENCY AGREEMENT No.K7537 Page 5
(9-10-2018)
then agree on a resolution of the dispute, the parties shall schedule a conference between the
respective senior managers of each organization to attempt to resolve the dispute. In the event the
parties cannot agree on a mutual resolution within fifteen (15) business days, the parties shall abide
by the Governor's dispute resolution process (RCW 43.17.330), if applicable, or collectively shall
appoint a third party to evaluate and resolve the dispute and such dispute resolution shall be final
and binding on the parties.
9. TERMINATION FOR CONVENIENCE. Except as otherwise provided in this Agreement, either party may
terminate this Agreement upon thirty (30) calendar days prior written notification. Upon such
termination,the parties shall be liable only for performance rendered or costs incurred in accordance
with the terms of this Agreement prior to the effective date of such termination.
10. GENERAL PROVISIONS.
A. COMPLIANCE WITH LAW. The Parties shall comply with all applicable law.
B. INTEGRATED AGREEMENT. This Agreement constitutes the entire agreement and understanding Of
the parties with respect to the subject matter and supersedes all prior negotiations,
representations, and understandings between them. There are no representations or
understandings of any kind not set forth herein.
C. AMENDMENT OR MODIFICATION. Except as set forth herein, this Agreement may not be amended or
modified except in writing and signed by a duly authorized representative of each party.
D. AUTHORITY. Each party to this Agreement, and each individual signing on behalf of each party,
hereby represents and warrants to the other that it has full power and authority to enter into this
Agreement and that its execution, delivery, and performance of this Agreement has been fully
authorized and approved, and that no further approvals or consents are required to bind such
party.
E. No AGENCY. The parties agree that no agency, partnership, or joint venture of any kind shall be or
is intended to be created by or under this Agreement. Neither party is an agent of the other party
nor authorized to obligate it.
F. GOVERNING LAW. The validity,construction, performance,and enforcement of this Agreement shall
be governed by and construed in accordance with the laws of the State of Washington, without
regard to its choice of law rules.
G. JURISDICTION & VENUE. In the event that any action is brought to enforce any provision of this
Agreement, the parties agree to exclusive jurisdiction in Thurston County Superior Court for the
State of Washington and agree that in any such action venue shall lie exclusively at Olympia,
Washington.
H. EXHIBITS. All exhibits referred to herein are deemed to be incorporated in this Agreement in their
entirety.
I. CAPTIONS&HEADINGS. The captions and headings in this Agreement are for convenience only and
are not intended to, and shall not be construed to, limit, enlarge, or affect the scope or intent of
this Agreement nor the meaning of any provisions hereof.
J. ELECTRONIC SIGNATURES. A signed copy of this Agreement or any other ancillary agreement
transmitted by facsimile, email, or other means of electronic transmission shall be deemed to
have the same legal effect as delivery of an original executed copy of this Agreement or such other
ancillary agreement for all purposes.
INTERAGENCY AGREEMENT No.K7537 Page 6
(9-10-2018)
K. COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original and all of which counterparts together shall constitute the same
instrument which maybe sufficiently evidenced by one counterpart. Execution of this Agreement
at different times and places by the parties shall not affect the validity thereof so long as all the
parties hereto execute a counterpart of this Agreement.
EXECUTED AND EFFECTIVE as of the date of the last signature.
CITY OF KENT STATE OF WASHINGTON
DEPARTMENT OF ENTERPRISE SERVICES
By: lJ�� By:
Name: Dana Ralph Name:ftoug Kilpatrick, PE
Title: Mayor Title: Energy Program Manager
Date: 04/19/2022 Date: 4.21.22
INTERAGENCY AGREEMENT No.K7537 Page 7
(9-10-2018)
ATTACHMENT A
PROJECT MANAGEMENT SERVICES SCOPE OF WORK
Energy/Utility Conservation Projects
Statewide Energy Performance Contracting Program
Energy Program will provide the following project management services for each specific project for the
Client Agency. Each individual project shall be authorized by an amendment to this Agreement.
1. Assist the Client Agency in the selection of an Energy Service Company (ESCO) consistent with the
requirements of RCW 39.35A for local governments; or 39.35C for state agencies and school districts.
2. Assist in identifying potential energy/utility conservation measures and estimated cost savings.
3. Assist in negotiating scope of work and fee for an ESCO audit of the facility(s).
4. Assist in identifying appropriate project funding sources and assist with obtaining project funding.
5. Assist in negotiating the technical, financial and legal issues associated with ESCO's Energy Services
Proposal.
6. Review and recommend approval of ESCO energy/utility audits and Energy Services Proposals.
7. Provide assistance during the design, construction and commissioning processes.
8. Review ESCO invoice voucher(s) received for reasonableness and forward to Client Agency for review
and payment.
9. Assist with final project acceptance.
10. Assist in resolution of disputes with the ESCO that arise during this Agreement, not to include formal
disputes.
11. Review up to the first three years of the ESCO's annual Measurement and Verification (M&V) reports
for completeness and accuracy. Review any ESCO guarantee compared to reported results and resolve
differences, if needed. Review and forward ESCO invoice vouchers for payment by the Client Agency.
INTERAGENCY AGREEMENT No.K7537 Page 8
(9-10-2018)
ATTACHMENT B
PROJECT MANAGEMENT FEE SCHEDULE
2021-23 Interagency Reimbursement Costs
for Project Management Fees to Administer Energy/Utility Conservation Projects
PROJECT
TOTAL PROJECT VALUE MANAGEMENT FEE TERMINATION FEE
5,000,001...........6,000,000..................................... $68,800................................... 25,700
4,000,001... .......5,000,000....................................... 67,700................................... 25,400
3,000,001...........4,000,000....................................... 66,700................................... 25,000
2,000,001...........3,000,000....................................... 62,500................................... 23,400
1,500,001...........2,000,000....................................... 58,300................................... 21,800
1,000,001...........1,500,000....................................... 51,600................................... 19,300
900,001. .... ... 1,000,000....................................... 43,800................................... 16,400
800,001...... ........900,000....................................... 41,300................................... 15,400
700,001....... .......800,000....................................... 38,300................................... 14,400
600,001....... .......700,000....................................... 36,500................................... 13,700
500,001....... .......6 00,000....................................... 3 3,800................................... 12,600
400,001...... ........500,000....................................... 30,200................................... 11,300
300,001....... .......400,000....................................... 2 5,800.................................... 9,700
200,001....... .......3 00,000....................................... 20,700..................................... 7,700
100,001....... .......2 00,000....................................... 14,400..................................... 5,400
5 0,001............... 100,000......................................... 7,800..................................... 3,500
20,001.................50,000......................................... 4,200..................................... 2,000
The project management fee on projects over $6,000,000 is 1.15% of the project cost. The maximum
Energy Program termination fee is$25,700.
1. These fees cover project management services for energy/utility conservation projects managed by
Enterprise Services' Energy Program.
2. Termination fees cover the selection and project management costs associated with managing an
ESCO's investment grade audit and energy services proposal. No termination fee will be charged
unless Client Agency decided not to proceed to construction based on an energy services proposal
that identifies projects that met Client Agency's cost effectiveness criteria.
3. If the project meets Client Agency's cost effectiveness criteria and Client Agency decides not to move
forward with a project, then Client Agency will be invoiced per the above listed Termination Fee or
$25,700 whichever is less. If Client Agency decides to proceed with the project then the Agreement
will be amended to include the Project Management Fee listed above.
4. If the audit fails to produce a project that meets Client Agency's established cost effectiveness criteria,
then there is no cost to Client Agency and no further obligation by Client Agency.
INTERAGENCY AGREEMENT No.K7537 Page 9
(9-10-2018)
ATTACHMENT C
MEASUREMENT& VERIFICATION SERVICES SCOPE OF WORK
Energy/Utility Conservation Projects
Statewide Energy Performance Contracting Program
If requested, Energy Program will provide the following measurement and verification services for each
year beyond the first three years following the Notice of Commencement of Energy Cost Savings by the
ESCO for the specific Client Agency project:
1. Review the ESCO's annual Measurement and Verification report for completeness and accuracy.
Review any ESCO guarantee compared to reported results and resolve differences, if needed. Review
and forward any ESCO invoice vouchers for payment by the Client Agency.
2. Where necessary, review Client Agency facility operations including any changes in operating hours,
changes in square footage,additional energy consuming equipment and negotiate changes in baseline
energy use with the ESCO and Client Agency that may impact achieved energy savings.
3. Attend a meeting or meetings with Client Agency and ESCO to review and discuss the annual
Measurement and Verification report.
INTERAGENCY AGREEMENT No.K7537 Page 10
(9-10-2018)