Loading...
HomeMy WebLinkAbout2023-03-14-minutes-solid-waste-and-maintenanceKITTITAS COUNTY COMMISSIONERS Solid Waste and Maintenance Regular Meeting Tuesday March 14, 2023 - 2:00 PM BOCC Conference Room 205 West 5th Room 108 - Ellensburg 1. Call to Order 2. Citizen Comments (1 min. time limit) 3. Solid Waste Updates: * New Transfer Station * Cie Elum Transfer Station New Entrance * Ryegrass Landfill Permit 4. Request Chair's Signature on LSWIFA Grant Amendment 5. Maintenance Updates: * New hire * Jail Plumbing Failure * Bloom Addition * EPA Grant 6. Ratify Vice Chair's signature on TK Elevator Change Order 7. Request Chair's Signature on Energy Services Performance Based Contract 8. Request Board approval for Chair's Signature on Change Order with SCJ for Upper District Court Parking Lot Design 9. RCW 42.30.110 Executive Session c) To consider the minimum price at which real estate will be offered for sale or lease when public knowledge regarding such consideration would cause a likelihood of decreased price. However, final action selling or leasing public property shall be taken in a meeting open to the public; 10. Other business 11. Concluded Created on 3/10/2023 1:57:23 PM KITTITAS COUNTY SOLID WASTE AND MAINTENANCE MINUTES BOCC CONFERENCE ROOM, 205 WEST 5TH ROOM 108 - IEILLENSBURG Regular Meeting TUESDAY 1 2:00 PM March 14, 2023 Board members present: Chairman Cory Wright, Vice Chairman Brett Wachsmith and Commissioner Laura Osiadacz. Others: Patti Stacey and Lisa Lawrence Call to Order at 2:02 p.m. Citizen Comments (1 min. time limit) — None Solid Waste Updates: New Transfer Station: Patti informed the Board that the project is moving forward, and we should be receiving the 60% drawings tomorrow. Discussion was held on the color scheme and getting all the information on the County website soon. Cle Elum Transfer Station New Entrance: Patti informed the Board that she had the pre - application meeting with CDS. Discussion was held on needing to move the fence line 15 feet which changes the storage area for trailers. Patti told the Board she is working on permits. Ryegrass Landfill Permit: Discussion was held on the Limited Purpose Landfill appeal. Further discussion included re -doing the SEPA, County code changes expanding the critical areas review. The existing Facility and future needs and the SEPA submittal being reviewed by a third part'. Request Chair's Signature on LSWIFA Grant Amendment: Patti informed the Board that she received an additional $40,000.00 on the Grant. Commissioner Wachsmith moved to approve the Chair's signature on the Grant amendment. Commissioner Osiadacz seconded the motion. Motion passed 3-0. Maintenance Updates: New hire: Patti informed the Board that she finished interviews for the Project Manager and offered the position to Cody Cupp, he will start on April 3,d. Patti informed the Board that she will be meeting with HR to restructure the HHW position in Solid Waste from supervisor to focus more on reporting and testing. A brief discussion was held on PCB testing on the oil tanks. Jail Plumbing Failure: Patti informed the Board that another 10 -foot section of pipe failed in the administration area of the jail. 2023-03-14 MINUTES Bloom Addition: Patti updated the Board stating that the project is moving a little slow due to the recent rain and hauling off the unsuitable material having to go deeper than the specs . Discussion was held on an abandoned pipe collecting water and re-routing the sewer around the building. EV Grant: Patti informed the Board she applied for a grant in the amount of $150,000.00 for EV charging stations. Discussion was held on the different levels of charging station costs and State and City requirements. Patti informed the Board that the City was inspecting the gas meter for a minor leak. Staff fixed the leak and will continue to monitor it. Ratify Vice Chair's signature on TK Elevator Change Order: Patti gave the Board an update on the elevator repair project stating that the concrete was thicker than anticipated to remove the shaft and they may need to use TK Elevator to help replace it. They required a Time and Material work order to get on their schedule. Commissioner Osiadacz moved to ratify Vice Chair's signature on TK Elevator change order. Commissioner Wright seconded the motion. Motion passed 3-0. Request Chair's signature on Energy Services Performance Based Contract: Discussion was held on McKinstiy evaluating the building finding the electrical use of the new units to be the same as the old units and lowered the price to install three units for $336,286.00, with an energy cost savings of $5,204.00 per year. The new units will allow for required air exchange. The project is funded through ABPA. Commissioner Wachsmith moved to approve as presented. Commissioner Osiadacz seconded the motion. Motion passed 3-0. Request Board approval for Chair's signature on Change order with SCJ for Upper District Court Parking Lot Design: Patti updated the Board that this is to fix the sink hole in the parking lot at Upper District Court. Commissioner Wachsmith moved to approve. Commissioner Osiadacz seconded the motion. Motion passed 3-0. RCW 42.30.110 Executive Session c) To consider the minimum price at which real estate will be offered for sale or lease when public knowledge regarding such consideration would cause a likelihood of decreased price. However, final action selling or leasing public property shall be taken in a meeting open to the public. At 2:40 p.m. the Board recessed into 2023-03-14 MINUTES 2 Executive Session for 10 minutes with action anticipated. At 2:50 the Board reconvened and directed staff to not sell and pursue the demolition contract. Other Business: Patti informed the Board that the Prosecutor's office will be talking with the Board about furniture. Discussion was held on what they could take with them and an office space for the Prosecutor in the Courthouse as required by law. Patti informed the Board of the Grant County tour with Steve Panattoni took. Discussion was held on the pre -made jail cells made out of structural steel. Patti said she has been attending their meetings learning about the design build process. Further discussion was held on design build for the Courthouse and pursuing the option. Patti said she is researching ways to save money and learn more about the process. The Board directed staff to re -connect with consultant and scope of the new process. Commissioner Wright gave an update on the Bowling alley stating that it is getting cleaned out, that they are removing four lanes and adding an arcade Commissioner Wright asked for Board approval to tour the University of Iowa. The Board approved the request. Concluded at 3:11 p.m. KITTITAS COUNTY COMMISSIONERS KITTITAS COUNTY, WASHINGTON Lisa tawrence Corti Wright, Chairman 2023-03-14 MINUTES El CD n O r- 0 O X C v Fn O I' L I" DEPARTMENT OF ErO Y State or Washington AMENDMENT NO.1 TO AGREEMENT NO. SWMLSWFA-2021-KiCoSW-00012 BETWEEN THE STATE OF WASHINGTON DEPARTMENT OF ECOLOGY AND KITTITAS COUNTY SOLID WASTE DEPARTMENT PURPOSE: To amend the above -referenced agreement (AGREEMENT) between the state of Washington Department of Ecology (ECOLOGY) and KITTITAS COUNTY SOLID WASTE DEPARTMENT (RECIPIENT) for the IMP Kittitas SW (PROJECT). This amendment will increase the total eligible cost by $40,000 from $326,892 to $366,892 (by 530,000 from $245,169 to $275,169, State share). The amendment will also be moving funds from Task 2- CROP to Task 3- ORG. The new task budgets are as follows: Task 1 - MRW is increased by $40,000 from $177,333.33 to $217,333.33 (by $30,000 from $133,000 to $163,000, state share) Task 2 - CROP is decreased by $20,000 from $36,906.67 to $16,906.67 (by $15,000 from $27,680 to $12,680, state share) Task 3 - ORG is increased by $20,000 from $112,652 to $132,652 (by $15,000 from $84,489 to $99,489, state share) The scope of work and expected outcomes for all tasks remain the same. Recipient underestimated the cost to achieve the expected outcomes for Tasks 1 and 3, and overestimated the cost to achieve the expected outcomes for Task 2. IT IS MUTUALLY AGREED that the AGREEMENT is amended as follows: Total Cost: Original: 326,892.00 Amended: 366,892.00 Total Eligible Cost: Original: 326,892.00 Amended: 366,892.00 Project Short Description: Original: Kittitas County Solid Waste will spend $326,892.00 to support waste prevention, reduction and recycling as well as the proper management of household hazardous waste (HEW) and organic material, resulting in 400 tons of materials recycled, 45 tons of HEW properly managed and 4,500 tons of organics diverted from the landfill. Amended: Kittitas County Solid Waste will spend $366,892.00 to support waste prevention, reduction and recycling as well as the Template Version 10./30/2015 State of Washington Department of Ecology KITTITAS COUNTY SOLID WASTE DEPARTMENT IMP Kittitas SW Project Agreement No. S WMLS WFA-2021-KiCoSW-00012 Page 2 of 8 proper management of household hazardous waste (HHW) and organic material, resulting in 400 tons of materials recycled, 45 tons of HHW properly managed and 4,500 tons of organics diverted from the landfill. CHANGES TO THE BUDGET Funding Distribution EG220199 Funding Title: IMP Kittitas SW Funding Type: Grant Funding Effective Date: 07/01/2021 Funding Expiration Date: 06/30/2023 Funding Source: Title: Model Toxics Control Operating Account (MTCOA) Fund: FD Type: State Funding Source %: 100% Description: Local Solid Waste Financial Assistance Approved Indirect Costs Rate: Approved State Indirect: 30% Recipient Match %: 25% InKind Interlocal Allowed: No InKind Other Allowed: No Is this Funding Distribution used to match a federal grant? No IMP Kittitas SW Task Total MRW Collection and Management $ 217,333.33 CROP Recycling Operations S 16,906.67 Organics Management S 132,652.00 CHANGES TO SCOPE OF WORK Task Number: 1 Task Title: MRW Collection and Management Template Version 10!30/2015 Total: S 366,892.00 Task Cost: 5217,333.33 State of Washington Department of Ecology KIMTAS COUNTY SOLID WASTE DEPARTMENT IMP Kittitas SW Project Agreement No. SWMLSWFA-2021-KiCoSW-00012 Page of8 Task Description: RECIPIENT will continue operating the moderate risk waste (MRW) fixed facilities located in Cle Elum and Ellensburg. RECIPIENT also offers collection of conditionally exempt small quantity generator (CESQG) waste. RECIPIENT must charge a fee for material collected from CESQGs and must itemize that fee as a credit to the task under the following conditions: • When the material is bulked with HHW for transportation/disposition and • RECIPIENT charges costs for transportation/disposition to the task. This task includes development and distribution of promotional materials in a variety of formats to encourage program participation. In accordance with provisions 3 and 19 of the General Terms and Conditions of this Agreement, RECIPIENT is encouraged to work with their ECOLOGY grant manager when developing promotional materials, and must provide a draft copy for review and approval ten (10) business days prior to production and distribution of materials. Work to be performed by RECIPIENT • MRW facility operations, including transportation for proper management of HHW • Oil and antifreeze collection Program promotion Costs eligible for reimbursement with supporting documentation include: Recipient employee time to implement task scope • Contracted or purchased services • Costs not listed here but pre -approved in writing by Ecology Costs not eligible for reimbursement include: Overtime compensation (all hours are calculated at the regular rate of pay) Costs covered by existing product stewardship organizations (E -Cycle Washington, LightRecycle Washington, Call2Recycle, PaintCare) and costs covered by new product stewardship organizations that are fully implemented during this agreement period are not eligible for reimbursement through this agreement Costs not specifically identified in the task's scope of work or pre -approved in writing by Ecology Task Goal Statement: The goal of this task is to divert MRW from landfills by providing convenient collection and proper management options for MRW for residents and businesses within Kittitas County. Task Expected Outcome: With the Task -Cost, RECIPIENT expects 45 tons of HHW to be collected and properly managed through 2,500 recipient employee hours. Recipient Task Coordinator: Patti Stacey Deliverables Number Description Due Date 1.1 Task Expected Outcomes are the deliverables and achieved incrementally throughout the biennium. Template Version 10/30/2015 State of Washington Department of Ecology KITTITAS COUNTY SOLID WASTE DEPARTMENT IMP Kittitas SW Project Agreement No. SWMLS,NTPA-2021-KiCoSW-00012 CHANGES TO SCOPE OF WORK Task Number: 2 Task Cost: $16,906.67 Task Title: CROP Recycling Operations Task Description: Work to be performed by RECIPIENT Provide and manage recycling -drop boxes at the Ellensburg and Cie Elum Transfer stations for County residents Contract with Shred -It to do secure shredding and recycling of confidential paper for residents Utilize existing contact with Waste Management to transport recyclables to markets for recycling Program promotion, education and outreach Page 4 of 8 This task includes development and distribution of promotional materials in a variety of formats to encourage program participation. In accordance with provisions 3 and 19 of the General Terms and Conditions of this Agreement, RECIPIENT is encouraged to work with their ECOLOGY grant manager when developing promotional materials. Costs eligible for reimbursement with supporting documentation include: • Recipient employee time to implement task scope • Contracted or purchased services • Costs not listed here but pre -approved in writing by Ecology Costs not eligible for reimbursement include: • Overtime compensation (all hours are calculated at the regular rate of pay) • Costs covered by existing product stewardship organizations (E -Cycle Washington, LightRecycle Washington, Call2Recycle, PaintCare) and costs covered by new product stewardship organizations that are fully implemented during this agreement period are not eligible for reimbursement through this agreement • Costs not specifically identified in the task's scope of work or pre -approved in writing by Ecology Task Goal Statement: The goal of this project is to provide collection of recyclables to residents within Kittitas County for proper recycling. Task Expected Outcome: With the Task Cost, RECIPIENT expects to collect 400 tons of materials from residents for recycling through 1,000 hours of employee time. Recipient Task Coordinator: Patti Stacey Deliverables Number Description Due Date Template Version 10/30/2015 State of Washington Department of Ecology KITTITAS COUNTY SOLID WASTE DEPARTMENT IMP Kinitas SW Project Agreement No. SWMLSWrA-2021 -KiCoSW-000 12 2.1 Task Expected Outcomes are the deliverables and achieved incrementally throughout the biennium. CHANGES TO SCOPE OF WORK Task Number: 3 Task Cost: $132,652.00 Task Title: Organics Management Task Description: Work to be performed by RECIPIENT Composting facility operations Encourage organics diversion from landfill through public outreach and education Page 5 of 8 This task includes development and distribution of promotional materials in a variety of formats to encourage program participation. In accordance with provisions 3 and 19 of the General Terms and Conditions of this Agreement, RECIPIENT is encouraged to work with their ECOLOGY grant manager when developing promotional materials. RECIPIENT may purchase compost bins under this task. It is anticipated that bins will be provided free to workshop participants who have not previously received a bin. RECIPIENT may request reimbursement of full cost of bins provided free to workshop participants only. The cost of bins given away or sold to non -workshop participants will not be reimbursed. RECIPIENT shall track the type, cost and number of bins provided to workshop participants separately from those provided to non -workshop participants, if any, and report quarterly. The total amount for any remaining bins at the end of the agreement must be credited back to the task. Costs eligible for reimbursement with supporting documentation include: • Recipient employee time to implement task scope • Supplies and materials as necessary and reasonable for composting workshops and other educational programs • Costs not listed here but pre -approved in writing by Ecology Costs not eligible for reimbursement include: • Overtime compensation (all hours are calculated at the regular rate of pay) • Costs not specifically identified in the task's scope of work or pre -approved in writing by Ecology Task Goal Statement: The goal of this task is to operate the compost facility and increase diversion of organics from the landfill by providing composting options and an alternative to burning. Task Expected Outcome: With the Task Cost, 4,500 tons of yard waste and other organics will be diverted to the compost facility over the duration of the grant period through 1,500 hours of employee time. Recipient Task Coordinator: Patti Stacey Template Version 10!30/2015 State of Washington Department of Ecology KITTITAS COUNTY SOLID WASTE DEPARTMENT IMP Kittitas SW Project Agreement No. SWMLSWFA-2021 -KiCoSW-000 12 Deliverables Page 6 of S Number Description Due Fate 3.1 Task Expected Outcomes are the deliverables and achieved incrementally throughout the biennium. [No due date] Template Version 10130/2015 State of Washington Department of Ecology KITTITAS COUNTY SOLID WASTE DEPARTMENT IMP Kittitas SW Project Agreement No. SWMLSWFA-202I-KiCoSW-00012 Fundins Distribution Summary Recipient / Ecology Share Page 7 of 8 Funding Distribution Name Recipient Match % Recipient Share Ecology Share Total IMP Kittitas SW 25 % Total $ 91,723.00 $ 275,169.00 $ 91,723.00 $ 275,169.00 $ 366,892.00 $ 366,892.00 Template Version 10/30/2015 State of Washington Department of Ecology KIT 1TAS COUNTY SOLID WASTE DEPARTMENT IMP Kittitas SW Project Agreement No. SWMLSWFA-2021-KiCoSW-00012 AUTHORIZING SIGNATURES Page 8 of 8 All other terms and conditions of the original Agreement including any Amendments remain in full force and effect, except as expressly provided by this Amendment. The signatories to this Amendment represent that they have the authority to execute this Amendment and bind their respective organizations to this Amendment. This amendment will be effective 07/01/2021. IN WITNESS WHEREOF: the parties hereto, having read this Amendment in its entirety, including all attachments, do agree in each and every particular and have thus set their hands hereunto. Washington State KITTITAS COUNTY SOLID WASTE DEPARTMENT Department of Ecology By. By. Laurie Davies Date Patti J Stacey Date Solid Waste Management Director Program Manager Chair, Board of County Commissioners ate Template Approved to Form by Attorney General's Office Template Version 10/30/2015 DEPARTMENT OF ECOLOGY State of Washington Agreement No. S WM]LSMTAA-2021-1K1CoSW-®®®1B SOLID WASTE MANAGEMENT LOCAL SOLID WASTE FINANCIAL ASSISTANCE AGREEMENT BETWEEN THE STATE OF NA ASHINGTON DEPARTMENT OF ECOLOGY AND KITTITAS COUNTY SOLID WASTE DEPARTMENT This is a binding Agreement entered into by and between the state of Washington, Department of Ecology, hereinafter referred to as "ECOLOGY," and KITTITAS COUNTY SOLID WASTE DEPARTMENT, hereinafter referred to as the "RECIPIENT," to carry out with the provided funds activities described herein. GENERAL INFORMATION Project Title: Total Cost: Total Eligible Cost: Ecology Share: Recipient Share: The Effective Date of this Agreement is: The Expiration Date of this Agreement is no later than: Project Type: IMP Kittitas SW $326,892.00 $326,892.00 $245,169.00 $81,723.00 07/01/2021 06/30/2023 Planning & Implementation Project Short Description: Kittitas County Solid Waste will spend $326,892.00 to support waste prevention, reduction and recycling as well as the proper management of household hazardous waste (HHW) and organic material, resulting in 400 tons of materials recycled, 45 tons of HHW properly managed and 4,500 tons of organics diverted from the landfill. Proiect Long Description: See the Scope of Work section for more detailed information related to individual Tasks. Overall Goal: Provide regional solutions and intergovernmental cooperation; prevent or minimize environmental contamination through planning and project implementation; and comply with state and local solid and hazardous waste management plans and laws. State of Washington Department of Ecology Agreement No: SWh1LSWEA-2021-KiCoSW-00012 Project Title: IMP Kittitas SW Recipient Name: KITTITAS COUNTY SOLID WASTE DEPARTMENT RECIPIENT INFORMATION Organization Name: KITTITAS COUNTY SOLID WASTE DEPARTMENT Federal Tax ID: 91-6001349 DUNS Number: 010202547 Mailing Address: 925 Industrial Way Ellensburg, WA 98926 Physical Address: 925 Industrial Way Ellensburg, Washington 98926 Organization Email: patti.stacey@co.kittitas.Wa.us Contacts Template Version 12/10/2020 Page 2 of 24 State of Washington Department of Ecology Agreement No: SWMLSWFA-2021-KiCoSW-00012 Project Title: IMP Kittitas SW Recipient Name: KIT 1TAS COUNTY SOLID WASTE DEPARTMENT Page 3 of 24 Project Manager Patti Stacey Director 925 Industrial Way Ellensburg, Washington 98926 Email: patti.stacey@co.kittitas.wa.us Phone: (509) 962-7542 Billing Contact Erica Luce Solid Wastc Assistant 925 Industrial Way Ellensburg, Washington 98926 Email: erica.luce@co.kittitas.wa.us Phone: (509) 962-7070 Patti J Stacey Authorized Director Signatory 925 Industrial Way Ellensburg, Washington 98926 Email: patti.stacey@co.kittitas.wa.us Phone: (509) 962-7542 Template Version 12/10/2020 State of Washington Department of Ecology Agreement No: SWMSWFA-2021-KiCoSW-00012 Project Title: IMP Kittitas SW Recipient Name: KITTITAS COUNTY SOLID WASTE DEPARTMENT ECOLOGY INFORMATION Mailing Address: Department of Ecology Solid Waste Management PO BOX 47600 Olympia, WA 98504-7600 Physical Address: Solid Waste Management 30D Desmond Drive SE Lacey, WA 98503 Contacts Page 4 of 24 Template Version 12/10/2020 Laura Busby Project Manager 1250 W Alder St. Union Gap, Washington 98903-0009 Email: LBUS461@ecy.wa.gov Phone: (509) 406-3959 Laura Busby Financial Manager 1250 W Alder St. Union Gap, Washington 98903-0009 Email: LBUS461@ecy.wa.gov Phone: (509) 406-3959 Template Version 12/10/2020 State of Washington Department ofEwlogy Page i of24 Agreement No: SWMLSWPA-2021-KiCoSW-00012 ProjcctTitle: IMP Kittitas SW Recipient Name: KITTITAS COUNTY SOLID WASTE DEPARTMENT AUTHORIZING SIGNATURES RECIPIENT agrees to furnish the necessary personnel, equipment, materials, services, and otherwise do all things necessary for or incidental to the performance of work as set forth in this Agreement. RECIPIENT acknowledges that they had the opportunity to review the entire Agreement, including all the terms and conditions of this Agreement, Scope of Work, attachments, and incorporated or referenced documents, as well as all applicable laws, statutes, rules, regulations, and guidelines mentioned in this Agreement. Furthennore, the RECIPIENT has read, understood, and accepts all requirements contained within this Agreement. This Agreement contains the entire understanding between the parties, and there are no other understandings or representations other than as set forth, or incorporated by reference, herein. No subsequent modifications or amendments to this agreement will be of any force or effect unless in writing, signed by authorized representatives of the RECIPIENT and ECOLOGY and made a part of this agreement. ECOLOGY and RECIPIENT may change their respective staff contacts without the concurrence of either party. This Agreement shall be subject to the written approval of Ecology's authorized representative and shall not be binding until so approved. The signatories to this Agreement represent that they have the authority to execute this Agreement and bind their respective organizations to this Agreement. Washington State Department of Ecology By: Laurie Davies Solid Waste Management Program Manager Template Approved to Fom by Attorney General's Office Template Version 12/10/2020 KITTITAS COUNTY SOLID WASTE DEPARTMENT • Digitally Agned 6y Laurie DaNes By - Date: 2021.1122 1650:39-03.00' / Date Patti J Stacey / Date Director 111 State of Washington Department of Ecology Agreement No: SWMLSWFA-2021-KiCoSW-00012 Project Title: IMP Kittitas SW RccipientName: KITTITAS COUNTY SOLID WASTE DEPARTMENT Template Version 12/10/2020 Page 6 of 24 Brett NVachsmith / Chair, Board of County Commissioners Date State of Washington Department of Ecology Pagel of24 Agreement No: SWMLSWPA-2021-KICOSV/-00012 Project Title: IMP Kittitas SW Recipient Name: KITTITAS COUNTY SOLID WASTE DEPARTMENT SCOPE OF WORK Task Number: 1 Task Cost: $177,333.33 Task Title: MRW Collection and Management Task Description: RECIPIENT will continue operating the moderate risk waste (MRW) fixed facilities located in Cie Elum and Ellensburg. RECIPIENT also offers collection of conditionally exempt small quantity generator (CESQG) waste. RECIPIENT must charge a fee for material collected from CESQGs and must itemize that fee as a credit to the task under the following conditions: • When the material is bulked with HHW for transportation/disposition and • RECIPIENT charges costs for transportation/disposition to the task. This task includes development and distribution of promotional materials in a variety of formats to encourage program participation. In accordance with provisions 3 and 19 of the General Terms and Conditions of this Agreement, RECIPIENT is encouraged to work with their ECOLOGY grant manager when developing promotional materials, and must provide a draft copy for review and approval ten (10) business days prior to production and distribution of materials. Work to be performed by RECIPIENT • MRW facility operations, including transportation for proper management of HHW • Oil and antifreeze collection • Program promotion Costs eligible for reimbursement with supporting documentation include: Recipient employee time to implement task scope Contracted or purchased services • Costs not listed here but pre -approved in writing by Ecology Costs not eligible for reimbursement include: • Overtime compensation (all hours are calculated at the regular rate of pay) • Costs covered by existing product stewardship organizations (E -Cycle Washington, LightRecycle Washington, Call2Recycle, PaintCare) and costs covered by new product stewardship organizations that are fully implemented during this agreement period are not eligible for reimbursement through this agreement • Costs not specifically identified in the task's scope of work or pre -approved in writing by Ecology Task Goal Statement: The goal of this task is to divert MRW from landfills by providing convenient collection and proper management options for MRW for residents and businesses within Kittitas County. Task Expected Outcome: With the Task Cost, RECIPIENT expects 45 tons of HHW to be collected and properly managed through 2,500 recipient employee hours. Template Version 12/10/2020 State of Washington Department of Ecology Agreement No: SWMLSWFA-2021-KiCoSW-00012 Project Title: IMP Kittitas SW Recipient Name: KITTITAS COUNTY SOLID WASTE DEPARTMENT Recipient Task Coordinator: Patti Stacey MRW Collection and Management Deliverables Page 8 of 24 Number Description Due Date 1.1 Task Expected Outcomes are the deliverables and achieved incrementally throughout the biennium. Template Version 12/10/2020 State of Washington Department of Ecology Agreement No: SWMLSWFA-2021-KiCoSW-00012 Project Title: IMP Kittita_s SW Recipient Name: KITTITAS COUNTY SOLID WASTE DEPARTMENT SCOPE OF WORK Task Number: 2 Task Cost: $36,906.67 Task Title: CROP Recycling Operations Task Description: Work to be performed by RECIPIENT • Provide and manage recycling -drop boxes at the Ellensburg and Cle Elum Transfer stations for County residents • Contract with Shred -It to do secure shredding and recycling of confidential paper for residents • Utilize existing contact with Waste Management to transport recyclables to markets for recycling • Program promotion, education and outreach Page 9 of 24 This task includes development and distribution of promotional materials in a variety of formats to encourage program participation. In accordance with provisions 3 and 19 of the General Terms and Conditions of this Agreement, RECIPIENT is encouraged to work with their ECOLOGY grant manager when developing promotional materials. Costs eligible for reimbursement with supporting documentation include: • Recipient employee time to implement task scope • Contracted or purchased services • Costs not listed here but pre -approved in writing by Ecology Costs not eligible for reimbursement include: • Overtime compensation (all hours are calculated at the regular rate of pay) • Costs covered by existing product stewardship organizations (E -Cycle Washington, LightRecycle Washington, Call2Recycle, PaintCare) and costs covered by new product stewardship organizations that are fully implemented during this agreement period are not eligible for reimbursement through this agreement • Costs not specifically identified in the task's scope of work or pre -approved in writing by Ecology Task Goal Statement: The goal of this project is to provide collection of recyclables to residents within Kittitas County for proper recycling. Task Expected Outcome: With the Task Cost, RECIPIENT expects to collect 400 tons of materials from residents for recycling through 1,000 hours of employee time. ReciDient Task Coordinator: Patti Stacey CROP Recycling Operations Deliverables Number Description Due Date 2.1 Task Expected Outcomes are the deliverables and achieved incrementally throughout the biennium. Template Version 12/10/2020 State of Washington Department of Ecology Agreement No: SWMLSWFA-2021•KiCoSW-00012 Project Title: IMP Kittitas SW Recipient Name: KITTITAS COUNTY SOLID WASTE DEPARTMENT SCOPE OF WORK Task Number: 3 'Task Cost: $112,652.00 Task Title: Organics Management Task Description: Work to be performed by RECIPIENT • Composting facility operations • Encourage organics diversion from landfill through public outreach and education Page 10 of 24 This task includes development and distribution of promotional materials in a variety of formats to encourage program participation. In accordance with provisions 3 and 19 of the General Terms and Conditions of this Agreement, RECIPIENT is encouraged to work with their ECOLOGY grant manager when developing promotional materials. RECIPIENT may purchase compost bins under this task. It is anticipated that bins will be provided free to workshop participants who have not previously received a bin. RECIPIENT may request reimbursement of full cost of bins provided free to workshop participants only. The cost of bins given away or sold to non -workshop participants will not be reimbursed. RECIPIENT shall track the type, cost and number of bins provided to workshop participants separately from those provided to non -workshop participants, if any, and report quarterly. The total amount for any remaining bins at the end of the agreement must be credited back to the task. Costs eligible for reimbursement with supporting documentation include: • Recipient employee time to implement task scope • Supplies and materials as necessary and reasonable for composting workshops and other educational programs • Costs not listed here but pre -approved in writing by Ecology Costs not eligible for reimbursement include: • Overtime compensation (all hours are calculated at the regular rate of pay) • Costs not specifically identified in the task's scope of work or pre -approved in writing by Ecology Task Goal Statement: The goal of this task is to operate the compost facility and increase diversion of organics from the landfill by providing composting options and an alternative to burning. Task Expected Outcome: With the Task Cost, 4,500 tons of yard waste and other organics will be diverted to the compost facility over the duration of the grant period through 1,500 hours of employee time. Template Version 12/10/2020 State of Washington Department of Ecology Agreement No: SWMLSWFA-2021-KiCoSW-00012 Project Title: IMP Kittitas SW Recipient Name: KITTITAS COUNTY SOLID WASTE DEPARTMENT Recipient Task Coordinator: Patti Stacey Organics Management Deliverables Page ll ef24 Number Description Due Date 3.1 Task Expected Outcomes are the deliverables and achieved incrementally throughout the biennium. [No due date] Template Version 12/10/2020 State of Washington Department of Ecology Agreement No: SWMLSWFA-2021-KiCoSW-00012 Project Title: IMP Kittitas SW Recipient Name; KITTITAS COUNTY SOLID WASTE DEPARTMENT BUDGET Funding Distribution EG220199 NOTE: The above firtiding distribution number is used to identify this specific agreement and budget on payment remittances and may be referenced on other communications fi-on: ECOLOGY. Your agreement ntay have multiple fcutding distribution numbers to idents each budget. Funding Title: IMP Kittitas SW Funding Type: Grant Funding Effective Date: 07/01/2021 Funding Expiration Date: 06/30/2023 Funding Source: Title: Model Toxics Control Operating Account (MTCOA) Fund: Type: State Funding Source %: 100% Description: Local Solid Waste Financial Assistance Approved Indirect Costs Rate: Approved State Indirect Rate: 30% Recipient Match %: 25% InKind Interlocal Allowed: No InKind Other Allowed: No Is this Funding Distribution used to match a federal grant? No IMP Kittitas SW Task Total MRW Collection and Management $ 177,333.33 CROP Recycling Operations $ 36,906.67 Organics Management $ 112,652.00 Total: S 326,892.00 Template Version 12/10/2020 Page 12of24 State of Washington Department of Ecology Agreement No: SWMLSWFA-2021-KiCoSW-00012 Project Title: IMP Kittitas SW Recipient Name: KITTITAS COUNTY SOLID WASTE DEPARTMENT Funding Distribution Summary Recipient / Ecology Share Page 13 of 24 Funding Distribution Name Recipient Match oto Recipient Share Ecology Share Total IMP Kittitas SW 25.00 % $ 81,723.00 $ 245,169.00 $ 326,892.00 Total $ 81,723.00 $ 245,169.00 S 326,892.00 AGREEMENT SPECIFIC TERMS AND CONDITIONS N/A SPECIAL TERMS AND CONDITIONS If the scope of this Agreement includes recycling activity managed or performed by the RECIPIENT at a recycling center (such as a transfer station or drop box location) or other locations, Ecology will not reimburse disposal costs for materials collected or advertised as collected for recycling/reuse or marketed for recycling/reuse under this Agreement, unless approved in writing by Ecology. RECIPIENT must immediately notify ECOLOGY when the RECIPIENT becomes aware that disposal of materials occurred or may occur due to the market conditions for recycled/reused materials. ECOLOGY may deny new costs or require repayment of costs already reimbursed or remove the task from the Agreement or terminate the Agreement. Ecology will conduct a risk assessment of all Local Solid Waste Financial Assistance recipients. The level of risk determines the level of oversight required by Ecology throughout the biennium. If the RECIPIENT's performance or project circumstances change, Ecology may reassess risk and notify the RECIPIENT of any changes to administrative requirements. RECIPIENT shall update the Spending Plan and Outcomes Data Collection form at least quarterly. The Spending Plan and Outcomes Data Collection form must be completed concurrent with the submittal of each payment Request/Progress Report. RECIPIENT shall report outcomes in a manner consistent with instructions in the Local Solid Waste Financial Assistance guidelines. RECIPIENT must submit within thirty (30) days after the expiration date of this Agreement, all financial (including payment requests), performance, and other reports required by this Agreement. Ecology shall have the right to deny reimbursement of payment requests received after this date. GENERAL FEDERAL CONDITIONS If a portion or all of the funds for this agreement are provided through federal funding sources or this agreement is used to match a federal grant award, the following terms and conditions apply to you. A. CERTIFICATION REGARDING SUSPENSION DEBARMENT. INELIGIBILITY OR VOLUNTARY EXCLUSION: 1. The RECIPIENT/CONTRACTOR, by signing this agreement, certifies that it is not suspended, debarred, proposed for debarment, declared ineligible or otherwise excluded from contracting with the federal government, or from receiving contracts paid for with federal funds. If the RECIPIENT/CONTRACTOR is unable to certify to the statements Template Version 12/10/2020 State of Washington Department of Ecology Agreement No: SWMLSWFA-2021-KiCoSW-00012 Project Title: IMP Kittitas SW Recipient Name: KITTITAS COUNTY SOLID WASTE DEPARTMENT Page 14 of 24 contained in the certification, they must provide an explanation as to why they cannot. 2. The RECIPIENT/CONTRACTOR shall provide immediate written notice to ECOLOGY if at any time the RECIPIENT/CONTRACTOR learns that its certification was erroneous when submitted or had become erroneous by reason of changed circumstances. 3. The terms covered transaction, debarred, suspended, ineligible, lower tier covered transaction, participant, person, primary covered transaction, principal, proposal, and voluntarily excluded, as used in this clause, have the meaning set out in the Definitions and Coverage sections of rules implementing Executive Order 12549. You may contact ECOLOGY for assistance in obtaining a copy of those regulations. 4. The RECIPIENT/CONTRACTOR agrees it shall not knowingly enter into any lower tier covered transaction with a person who is proposed for debarment under the applicable Code of Federal Regulations, debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction. S. The RECIPIENT/CONTRACTOR further agrees by signing this agreement, that it will include this clause titled "CERTIFICATION REGARDING SUSPENSION, DEBARMENT, INELIGIBILITY OR VOLUNTARY EXCLUSION" without modification in all lower tier covered transactions and in all solicitations for lower tier covered transactions. 6. Pursuant to 2CFRI80.330, the RECIPIENT/CONTRACTOR is responsible for ensuring that any lower tier covered transaction complies with certification of suspension and debarment requirements. 7. RECIPIENT/CONTRACTOR acknowledges that failing to disclose the information required in the Code of Federal Regulations may result in the delay or negation of this funding agreement, or pursuance of legal remedies, including suspension and debarment. 8. RECIPIENT/CONTRACTOR agrees to keep proof in its agreement file, that it, and all lower tier recipients or contractors, are not suspended or debarred, and will make this proof available to ECOLOGY before requests for reimbursements will be approved for payment. RECIPIENT/CONTRACTOR must run a search in <http://www.sam.gov> and print a copy of completed searches to document proof of compliance. B FEDERAL FUNDING ACCOUNTABILITY AND TRANSPARENCY ACT (FFATA) REPORTING REQUIREMENTS: CONTRACTOR/RECIPIENT must complete the FFATA Data Collection Form (ECY 070-395) and return it with the signed agreement to ECOLOGY. Any CONTRACTOR/RECIPIENT that meets each of the criteria below must report compensation for its five top executives using the FFATA Data Collection Form. Receives more than $25,000 in federal funds under this award. Receives more than 80 percent of its annual gross revenues from federal funds. Receives more than $25,000,000 in annual federal funds. Ecology will not pay any invoices until it has received a completed and signed FFATA Data Collection Form. Ecology is required to report the FFATA information for federally funded agreements, including the required DUNS number, at www.fSrs.aov <http://www.fsrs.izov/> within 30 days of agreement signature. The FFATA information will be available to the public at www isaspendine gov <http•//www.usaspending.eov/>. For more details on FFATA requirements, see www.fsrs.aov <http://www.fsrs.gov/>. C. FEDERAL FUNDING PROHIBITION ON CERTAIN TELECOMMUNICATIONS OR VIDEO SURVEILLANCE Template Version 010/2020 State of Washington Department of Ecology Agreement No: SWMLSWrA-2021-KiCoSW-000!2 Project Title: IMP Kittitas SW Recipient Name: KITTITAS COUNTY SOLID WASTE DEPARTMENT SERVICES OR.EOUIPMENT: Page 15 of24 As required by 2 CFR 200.216, federal grant or loan recipients and subrecipients are prohibited from obligating or expending loan or grant funds to: 1. Procure or obtain; Extend or renew a contract to procure or obtain; or Enter into a contract (or extend or renew a contract) to procure or obtain equipment, services, or systems that use covered telecommunications equipment, video surveillance services or services as a substantial or essential component of any system, or as critical technology as part of any system. As described in Public Law 115-232 <https://wwxv.tzovinfo.i!ov/content/pkp/PLAW-I l5pub1232/pdf/PLAW-115pub1232.pdf5, section 889, covered telecommunications equipment is telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities). Recipients, subrecipients, and borrowers also may not use federal funds to purchase certain prohibited equipment, systems, or services, including equipment, systems, or services produced or provided by entities identified in section 889, are recorded in the System for Award Manaeement (SAM) <https://sam.gov/SAMh exclusion list. Template Version 12/10/2020 State of Washington Department of Ecology Page 16 of 24 Agreement No: SWMLSWPA-2021-KiCoSW-00012 Project Title: IMP Kittitas SW Recipient Name: KITTITAS COUNTY SOLID WASTE DEPARTMENT GENERAL TERMS AND CONDITIONS Pertaining to Grant and Loan Agreements With the state of Washington, Department of Ecology GENERAL TERMS AND CONDITIONS For DEPARTMENT OF ECOLOGY GRANTS and LOANS 06/24/2021 Version 1. ADMINISTRATIVE REQUIREMENTS a) RECIPIENT shall follow the "Administrative Requirements for Recipients of Ecology Grants and Loans — EAGL Edition." (https://fortress.wa.gov/ecy/publications/SuaunaryPages/ 1701004.html) b) RECIPIENT shall complete all activities funded by this Agreement and be fully responsible for the proper management of all funds and resources made available under this Agreement. c) RECIPIENT agrees to take complete responsibility for all actions taken under this Agreement, including ensuring all subgrantees and contractors comply with the terms and conditions of this Agreement. ECOLOGY reserves the right to request proof of compliance by subgrantees and contractors. d) RECIPIENT's activities under this Agreement shall be subject to the review and approval by ECOLOGY for the extent and character of all work and services. 2. AMENDMENTS AND MODIFICATIONS This Agreement may be altered, amended, or waived only by a written amendment executed by both parties. No subsequent modification(s) or amendment(s) of this Agreement will be of any force or effect unless in writing and signed by authorized representatives of both parties. ECOLOGY and the RECIPIENT may change their respective staff contacts and administrative information without the concurrence of either party. 3. ACCESSIBILITY REQUIREMENTS FOR COVERED TECHNOLOGY The RECIPIENT must comply with the Washington State Office of the Chief Information Officer, OCIO Policy no. 188, Accessibility (https:Hocio.wa.gov/policy/accessibility) as it relates to "covered technology." This requirement applies to all products supplied under the Agreement, providing equal access to information technology by individuals with disabilities, including and not limited to web sites/pages, web -based applications, software systems, video and audio content, and electronic documents intended for publishing on Ecology's public web site. 4. ARCHAEOLOGICAL AND CULTURAL RESOURCES RECIPIENT shall take all reasonable -action to avoid, minimize, or mitigate adverse effects to archaeological and historic archaeological sites, historic buildings/structures, traditional cultural places, sacred sites, or other cultural resources, hereby referred to as Cultural Resources. The RECIPIENT must agree to hold harmless ECOLOGY in relation to any claim related to Cultural Resources discovered, disturbed, or damaged due to the RECIPIENT's project funded under this Agreement. RECIPIENT shall: a) Contact the ECOLOGY Program issuing the grant or loan to discuss any Cultural Resources requirements for their project: • Cultural Resource Consultation and Review should be initiated early in the project planning process and must be completed prior to expenditure of Agreement funds as required by applicable State and Federal requirements. * For state funded construction, demolition, or land acquisitions, comply with Governor Executive Order 21-02, Archaeological and Cultural Resources. Template Version 12/10/2020 State ofWashington Department of Ecology Agreement No: SWMLSWrA-2021-KiCoSW-00012 Project Title: IMP Kittitas SW Recipient Name: KIT 1TAS COUNTY SOLID WASTE DEPARTM[NT Page 17 of24 • For projects with any federal involvement, comply with the National Historic Preservation Act of 1966 (Section 106). b) If required by the ECOLOGY Program, submit an Inadvertent Discovery Plan (IDP) to ECOLOGY prior to implementing any project that involves field activities. ECOLOGY will provide the IDP form. RECIPIENT shall: • Keep the IDP at the project site. • Make the IDP readily available to anyone working at the project site. • Discuss the IDP with staff, volunteers, and contractors working at the project site. • Implement the IDP when Cultural Resources or human remains are found at the project site. c) If any Cultural Resources are found while conducting work under this Agreement, follow the protocol outlined in the project IDP. • Immediately stop work and notify the ECOLOGY Program, who will notify the Department of Archaeology and Historic Preservation at (360) 586-3065, any affected Tribe, and the local government. d) If any human remains are found while conducting work under this Agreement, follow the protocol outlined in the project IDP. • Immediately stop work and notify the local Law Enforcement Agency or Medical Examiner/Coroner's Office, the Department of Archaeology and Historic Preservation at (360) 790-1633, and then the ECOLOGY Program. e) Comply with RCW 27.53, RCW 27.44, and RCW 68.50.645, and all other applicable local, state, and federal laws protecting Cultural Resources and human remains. 5. ASSIGNMENT No right or claim of the RECIPIENT arising under this Agreement shall be transferred or assigned by the RECIPIENT. 6. COMMUNICATION RECIPIENT shall make every effort to maintain effective communications with the RECIPIENT's designees, ECOLOGY, all affected local, state, or federal jurisdictions, and any interested individuals or groups. 7. COMPENSATION a) Any work performed prior to effective date of this Agreement will be at the sole expense and risk of the RECIPIENT. ECOLOGY must sign the Agreement before any payment requests can be submitted. b) Payments will be made on a reimbursable basis for approved and completed work as specified in this Agreement. c) RECIPIENT is responsible to determine if costs are eligible. Any questions regarding eligibility should be clarified with ECOLOGY prior to incurring costs. Costs that are conditionally eligible require approval by ECOLOGY prior to expenditure. d) RECIPIENT shall not invoice more than once per month unless agreed on by ECOLOGY. e) ECOLOGY will not process payment requests without the proper reimbursement forms, Progress Report and supporting documentation. ECOLOGY will provide instructions for submitting payment requests. f) ECOLOGY will pay the RECIPIENT thirty (30) days after receipt of a properly completed request for payment. g) RECIPIENT will receive payment through Washington State's Office of Financial Management's Statewide Payee Desk. To receive payment you must register as a statewide vendor by'submitting a statewide vendor registration form and an IRS W-9 form at website, https://ofm.wa.gov/it-systems/statewide-vendorpayee-services. If you have questions about the vendor registration process, you can contact Statewide Payee Help Desk at (360) 407-8180 or email PayeeRegistration@ofm.wa.gov. h) ECOLOGY may, at its sole discretion, withhold payments claimed by the RECIPIENT if the RECIPIENT fails to satisfactorily comply with any term or condition of this Agreement. i) Monies withheld by ECOLOGY may be paid to the RECIPIENT when the work described herein, or a portion thereof, has been completed if, at ECOLOGY's sole discretion, such payment is reasonable and approved according to this Agreement, as appropriate, or upon completion of an audit as specified herein. Template Version 12/10/2020 Statc of Washington Department of Ecology Agreement No: SWMLSWFA-2021 -KiCoSW-000 12 Project Title: IMP Kittitas SW Recipient Name: KITTITAS COUNTY SOLID WASTE DEPARTMENT Page 18 of 24 j) RECIPIENT must submit within thirty (30) days after the expiration date of this Agreement, all financial, performance, and other reports required by this Agreement. Failure to comply may result in delayed reimbursement. 8. COMPLIANCE WITH ALL LAWS RECIPIENT agrees to comply fully with all applicable federal, state and local laws, orders, regulations, and permits related to this Agreement, including but not limited to: a) RECIPIENT agrees to comply with all applicable laws, regulations, and policies of the United States and the State of Washington which affect wages and job safety. b) RECIPIENT agrees to be bound by all applicable federal and state laws, regulations, and policies against discrimination. c) RECIPIENT certifies full compliance with all applicable state industrial insurance requirements. d) RECIPIENT agrees to secure and provide assurance to ECOLOGY that all the necessary approvals and permits required by authorities having jurisdiction over the project are obtained. RECIPIENT must include time in their project timeline for the permit and approval processes. ECOLOGY shall have the right to immediately terminate for cause this Agreement as provided herein if the RECIPIENT fails to comply with above requirements. If any provision of this Agreement violates any statute or rule of law of the state of Washington, it is considered modified to conform to that statute or rule of law. 9. CONFLICT OF INTEREST RECIPIENT and ECOLOGY agree that any officer, member, agent, or employee, who exercises any function or responsibility in the review, approval, or carrying out of this Agreement, shall not have any personal or financial interest, direct or indirect, nor affect the interest of any corporation, partnership, or association in which he/she is a part, in this Agreement or the proceeds thereof. 10. CONTRACTING FOR GOODS AND SERVICES RECIPIENT may contract to buy goods or services related to its performance under this Agreement. RECIPIENT shall award all contracts for construction, purchase of goods, equipment, services, and professional architectural and engineering services through a competitive process, if required by State law. RECIPIENT is required to follow procurement procedures that ensure legal, fair, and open competition. RECIPIENT must have a standard procurement process or follow current state procurement procedures. RECIPIENT may be required to provide written certification that they have followed their standard procurement procedures and applicable state law in awarding contracts under this Agreement. ECOLOGY reserves the right to inspect and request copies of all procurement documentation, and review procurement practices related to this Agreement. Any costs incurred as a result of procurement practices not in compliance with state procurement law or the RECIPIENT's normal procedures may be disallowed at ECOLO.GY's sole discretion. 11. DISPUTES When there is a dispute with regard to the extent and character of the work, or any other matter related to this Agreement the determination of ECOLOGY will govern, although the RECIPIENT shall have the right to appeal decisions as provided for below: a) RECIPIENT notifies the funding program of an appeal request. b) Appeal request must be in writing and state the disputed issue(s). c) RECIPIENT has the opportunity to be heard and offer evidence in support of its appeal. d) ECOLOGY reviews the RECIPIENT's appeal. e) ECOLOGY sends a written answer within ten (10) business days, unless more time is needed, after concluding the review. Template Version 12/10/2020 State of Washington Department of Ecology Agreement No: SWMLSWPA-2021-KiCoSW-00012 Project Title: IMP Kittitas SW Recipient Name: KITTITAS COUNTY SOLID WASTE DEPARTMENT Page 19 of24 The decision of ECOLOGY from an appeal will be final and conclusive, unless within thirty (30) days from the date of such decision, the RECIPIENT furnishes to the Director of ECOLOGY a written appeal. The decision of the Director or duly authorized representative will be final and conclusive. The patties agree that this dispute process will precede any action in a judicial or quasi-judicial tribunal. Appeals of the Director's decision will be brought in the Superior Court of Thurston County. Review of the Director's decision will not be taken to Environmental and Land Use Hearings Office. Pending final decision of a dispute, the RECIPIENT agrees to proceed diligently with the performance of this Agreement and in accordance with the decision rendered. Nothing in this Agreement will be construed to limit the parties' choice of another mutually acceptable method, in addition to the dispute resolution procedure outlined above. 12. ENVIRONMENTAL DATA STANDARDS a) RECIPIENT shall prepare a Quality Assurance Project Plan (QAPP) for a project that collects or uses environmental measurement data. RECIPIENTS unsure about whether a QAPP is required for their project shall contact the ECOLOGY Program issuing the grant or loan. If a QAPP is required, the RECIPIENT shall: • Use ECOLOGY's QAPP Template/Checklist provided by the ECOLOGY, unless ECOLOGY Quality Assurance (QA) officer or the Program QA coordinator instructs otherwise. • Follow ECOLOGY's Guidelines for Preparing Quality Assurance Project Plans for Environmental Studies, July 2004 (Ecology Publication No. 04-03-030). • Submit the QAPP to ECOLOGY for review and approval before the start of the work. b) RECIPIENT shall submit environmental data that was collected on a project to ECOLOGY using the Environmental Information Management system (EIM), unless the ECOLOGY Program instructs otherwise. The RECIPIENT must confirm with ECOLOGY that complete and correct data was successfully loaded into EIM, find instructions at: http://www.ecy.wa.gov/eim. c) RECIPIENT shall follow ECOLOGY's data standards when Geographic Information System (GIS) data is collected and processed. Guidelines for Creating and Accessing GIS Data are available at: https:Hecology.wa.gov/Research-Data/Data-resources/Geographic-Information-Systems-GIS/Standards. RECIPIENT, when requested by ECOLOGY, shall provide copies to ECOLOGY of all final GIS data layers, imagery, related tables, raw data collection files, map products, and all metadata and project documentation. 13. GOVERNING LAW This Agreement will be governed by the laws of the State of Washington, and the venue of any action brought hereunder will be in the Superior Court of Thurston County. 14. INDEMNIFICATION ECOLOGY will in no way be held responsible for payment of salaries, consultant's fees, and other costs related to the project described herein, except as provided in the Scope of Work. To the extent that the Constitution and laws of the State of Washington permit, each party will indemnify and hold the other harmless from and against any liability for any or all injuries to persons or property arising from the negligent act or omission of that party or that party's agents or employees arising out of this Agreement. 15. INDEPENDENT STATUS The employees, volunteers, or agents of each party who are engaged in the performance of this Agreement will continue to be employees, volunteers, or agents of that party and will not for any purpose be employees, volunteers, or agents of the outer party. Template Version 12/10/2020 State of Washington Department of Ecology Page 20 of 24 Agreement No: SWMLSWFA-2021-KiCoSW-000[2 Project Title: IMP Kittitas SW Recipient Name: =ITAS COUNTY SOLID WASTE DEPARTMENT 16. KICKBACKS RECIPIENT is prohibited from inducing by any means any person employed or otherwise involved in this Agreement to give up any part of the compensation to which he/she is otherwise entitled to or receive any fee, commission, or gift in return for award of a subcontract hereunder. 17. MINORITY AND WOMEN'S BUSINESS ENTERPRISES (MWBE) RECIPIENT is encouraged to solicit and recruit, to the extent possible, certified minority-owned (MBE) and women -owned (WBE) businesses in purchases and contracts initiated under this Agreement. Contract awards or rejections cannot be made based on MWBE participation; however, the RECIPIENT is encouraged to take the following actions, when possible, in any procurement under this Agreement: a) Include qualified minority and women's businesses on solicitation lists whenever they are potential sources of goods or services. b) Divide the total requirements, when economically feasible, into smaller tasks or quantities, to permit maximum participation by qualified minority and women's businesses. c) Establish delivery schedules, where work requirements permit, which will encourage participation of qualified minority and women's businesses. d) Use the services and assistance of the Washington State Office of Minority and Women's Business Enterprises (OMWBE) (866-208-1064) and the Office of Minority Business Enterprises of the U.S. Department of Commerce, as appropriate. 18. ORDER OF PRECEDENCE In the event of inconsistency in this Agreement, unless otherwise provided herein, the inconsistency shall be resolved by giving precedence in the following order: (a) applicable federal and state statutes and regulations; (b) The Agreement; (c) Scope of Work; (d) Special Terms and Conditions; (e) Any provisions or terms incorporated herein by reference, including the "Administrative Requirements for Recipients of Ecology Grants and Loans"; (f) Ecology Funding Program Guidelines; and (g) General Terms and Conditions. 19. PRESENTATION AND PROMOTIONAL MATERIALS ECOLOGY reserves the right to approve RECIPIENT's communication documents and materials related to the fulfillment of this Agreement: a) If requested, RECIPIENT shall provide a draft copy to ECOLOGY for review and approval ten (10) business days prior to production and distribution. b) RECIPIENT shall include time for ECOLOGY's review and approval process in their project timeline. c) If requested, RECIPIENT shall provide ECOLOGY two (2) final copies and an electronic copy of any tangible products developed. Copies include any printed materials, and all tangible products developed such as brochures, manuals, pamphlets, videos, audio tapes, CDs, curriculum, posters, media announcements, or gadgets with a message, such as a refrigerator magnet, and any online communications, such as web pages, blogs, and twitter campaigns. If it is not practical to provide a copy, then the RECIPIENT shall provide a description (photographs, drawings, printouts, etc.) that best represents the item. Any communications intended for public distribution that uses ECOLOGY's logo shall comply with ECOLOGY's graphic requirements and any additional requirements specified in this Agreement. Before the use of ECOLOGY's logo contact ECOLOGY for guidelines. RECIPIENT shall acknowledge in the communications that funding was provided by ECOLOGY. 20. PROGRESS REPORTING Template Version 12/10/2020 State of Washington Department of Ecology Agreement No: SWMLSWFA-2021-KiCoSW-00012 Project Title: IMP Kittitas SW Recipient Name: KIT 1TAS COUNTY SOLID WASTE DEPARTMENT Page 21 of 24 a) RECIPIENT must satisfactorily demonstrate the timely use of funds by submitting payment requests and progress reports to ECOLOGY. ECOLOGY reserves the right to amend or terminate this Agreement if the RECIPIENT does not document timely use of funds. b) RECIPIENT must submit a progress report with each payment request. Payment requests will not be processed without a progress report. ECOLOGY will define the elements and frequency of progress reports. c) RECIPIENT shall use ECOLOGY's provided progress report format. d) Quarterly progress reports will cover- the periods from January 1 through March 31, April 1 through June 30, July 1 through September 30, and October 1 through December 31. Reports shall be submitted within thirty (30) days after the end of the quarter being reported. e) RECIPIENT must submit within thirty (30) days of the expiration date of the project, unless an extension has been approved by ECOLOGY, all financial, performance, and other reports required by the Agreement and funding program guidelines. RECIPIENT shall use the ECOLOGY provided closeout report format. 21. PROPERTY RIGHTS a) Copyrights and Patents. When the RECIPIENT creates any copyrightable materials or invents any patentable property under this Agreement, the RECIPIENT may copyright or patent the same but ECOLOGY retains a royalty free, nonexclusive, and irrevocable license to reproduce, publish, recover, or otherwise use the material(s) or property, and to authorize others to use the same for federal, state, or local government purposes. b) Publications. When the RECIPIENT or persons employed by the RECIPIENT use or publish ECOLOGY information; present papers, lectures, or seminars involving information supplied by ECOLOGY; or use logos, reports, maps, or other data in printed reports, signs, brochures, pamphlets, etc., appropriate credit shall be given to ECOLOGY. c) Presentation and Promotional Materials. ECOLOGY shall have the right to use or reproduce any printed or graphic materials produced in fulfillment of this Agreement, in any manner ECOLOGY deems appropriate. ECOLOGY shall acknowledge the RECIPIENT as the sole copyright owner in every use or reproduction of the materials. d) Tangible Property Rights. ECOLOGY's current edition of "Administrative Requirements for Recipients of Ecology Grants and Loans," shall control the use and disposition of all real and personal property purchased wholly or in part With funds furnished by ECOLOGY in the absence of state and federal statutes, regulations, or policies to the contrary, or upon specific instructions with respect thereto in this Agreement. e) Personal Property Furnished by ECOLOGY. When ECOLOGY provides personal property directly to the RECIPIENT for use in performance of the project, it shall be returned to ECOLOGY prior to final payment by ECOLOGY. If said property is lost, stolen, or damaged while in the RECIPIENT's possession, then ECOLOGY shall be reimbursed in cash or by setoff by the RECIPIENT for the fair market value of such property. f) Acquisition Projects. The following provisions shall apply if the project covered by this Agreement includes £rinds for the acquisition of land or facilities: 1. RECIPIENT shall establish that the cost is fair value and reasonable prior to disbursement of funds provided for in this Agreement. 2. RECIPIENT shall provide satisfactory evidence of title or ability to acquire title for each parcel prior to disbursement of funds provided by this Agreement. Such evidence may include title insurance policies, Torrens certificates, or abstracts, and attorney's opinions establishing that the land is free frorrr any impediment, lien, or claim which would impair the uses intended by this Agreement. g) Conversions. Regardless of the Agreement expiration date, the RECIPIENT shall not at any time convert any equipment, property, or facility acquired or developed under this Agreement to uses other than those for which assistance was originally approved without prior written approval of ECOLOGY. Such approval may be conditioned upon payment to ECOLOGY of that portion of the proceeds of the sale, lease, or other conversion or encumbrance which monies granted pursuant to this Agreement bear to the total acquisition, purchase, or construction costs of such property. Template Version 12/10/2020 State of Washington Department of Ecology Agreement No: SWMLSWFA-2021-KiCoSW-00012 Page 22 of 24 Project Title: IMP Kittitas SW Recipient Name: KITTITAS COUNTY SOLID WASTE DEPARTMENT 22. RECORDS, AUDITS, AND INSPECTIONS RECIPIENT shall maintain complete program and financial records relating to this Agreement, including any engineering documentation and field inspection reports of all construction work accomplished. All records shall: a) Be kept in a manner which provides an audit trail for all expenditures. b) Be kept in a common file to facilitate audits and inspections. c) Clearly indicate total receipts and expenditures related to this Agreement. d) Be open for audit or inspection by ECOLOGY, or by any duly authorized audit representative of the State of Washington, for a period of at least three (3) years after the final grant payment or loan repayment, or any dispute resolution hereunder. RECIPIENT shall provide clarification and make necessary adjustments if any audits or inspections identify discrepancies in the records. ECOLOGY reserves the right to audit, or have a designated third party audit, applicable records to ensure that the state has been properly invoiced. Any remedies and penalties allowed by law to recover monies determined owed will be enforced. Repetitive instances of incorrect invoicing or inadequate records may be considered cause for termination. All work performed under this Agreement and any property and equipment purchased shall be made available to ECOLOGY and to any authorized state, federal or local representative for inspection at any time during the course of this Agreement and for at least three (3) years following grant or loan termination or dispute resolution hereunder. RECIPIENT shall provide right of access to ECOLOGY, or any other authorized representative, at all reasonable times, in order to monitor and evaluate performance, compliance, and any other conditions under this Agreement. 23. RECOVERY OF FUNDS The right of the RECIPIENT to retain monies received as reimbursement payments is contingent upon satisfactory performance of this Agreement and completion of the work described in the Scope of Work. All payments to the RECIPIENT are subject to approval and audit by ECOLOGY, and any unauthorized expenditure(s) or unallowable cost charged to this Agreement shall be refunded to ECOLOGY by the RECIPIENT. RECIPIENT shall refund to ECOLOGY the full amount of any erroneous payment or overpayment under this Agreement. RECIPIENT shall refund by check payable to ECOLOGY the amount of any such reduction of payments or repayments within thirty (30) days of a written notice. Interest will accrue at the rate of twelve percent (12%) per year from the time ECOLOGY demands repayment of funds. Any property acquired under this Agreement, at the option of ECOLOGY, may become ECOLOGY's property and the RECIPIENT's liability to repay monies will be reduced by an amount reflecting the fair value of such property. 24. SEVERABILITY If any provision of this Agreement or any provision of any document incorporated by reference shall be held invalid, such invalidity shall not affect the other provisions of this Agreement which can be given effect without the invalid provision, and to this end the provisions of this Agreement are declared to be severable. 25. STATE ENVIRONMENTAL POLICY ACT (SEPA) RECIPIENT must demonstrate to ECOLOGY's satisfaction that compliance with the requirements of the State Environmental Policy Act (Chapter 43.21C RCW and Chapter 197-11 WAC) have been or will be met. Any reimbursements are subject to this provision. 26. SUSPENSION When in the best interest of ECOLOGY, ECOLOGY may at any time, and without cause, suspend this Agreement or any portion thereof for a temporary period by written notice from ECOLOGY to the RECIPIENT. RECIPIENT shall resume performance on tIle next business day following the suspension period unless another day is specified by ECOLOGY. Template Version 12/1012020 State of Washington Department of Ecology Agreement No: SWMLSWFA-2021-KiCoSW-00012 Project Title: hMP Kittitas SW Recipient Name: KITTITAS COUNTY SOLID WASTE DEPARTMENT Page 23 of 24 27. SUSTAINABLE PRACTICES In order to sustain Washington's natural resources and ecosystems, the RECIPIENT is fully encouraged to implement sustainable practices and to purchase environmentally preferable products under this Agreement. a) Sustainable practices may include such activities as: use of clean energy, use of double -sided printing, hosting low impact meetings, and setting up recycling and composting programs. b) Purchasing may include such items as: sustainably produced products and services, EPEAT registered computers and imaging equipment, independently certified green cleaning products, remanufactured toner cartridges, products with reduced packaging, office products that are refillable, rechargeable, and recyclable, 100% post -consumer recycled paper, and toxic free products. For more suggestions visit ECOLOGY's web page, Green Purchasing, https://ecology.wa.gov/Regulations-Permits/Guidance-technical-ass istance/Sus to inable-purchasing. 28. TERMINATION a) For Cause ECOLOGY may terminate for cause this Agreement with a seven (7) calendar days prior written notification to the RECIPIENT, at the sole discretion of ECOLOGY, for failing to perform an Agreement requirement or for a material breach of any term or condition. If this Agreement is so terminated, 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 termination. Failure to Commence Work. ECOLOGY reserves the right to terminate this Agreement if RECIPIENT fails to commence work on the project funded within four (4) months after the effective date of this Agreement, or by any date mutually agreed upon in writing for commencement of work, or the time period defined within the Scope of Work. Non -Performance. The obligation of ECOLOGY to the RECIPIENT is contingent upon satisfactory performance by the RECIPIENT of all of its obligations under this Agreement. In the event the RECIPIENT unjustifiably fails, in the opinion of ECOLOGY, to perform any obligation required of it by this Agreement, ECOLOGY may refuse to pay any further funds, terminate in whole or in part this Agreement, and exercise any other rights under this Agreement. Despite the above, the RECIPIENT shall not be relieved of any liability to ECOLOGY for damages sustained by ECOLOGY and the State of Washington because of any breach of this Agreement by the RECIPIENT. ECOLOGY may withhold payments for the purpose of setoff until such time as the exact amount of damages due ECOLOGY from the RECIPIENT is determined. b) For Convenience ECOLOGY may terminate for convenience this Agreement, in whole or in part, for any reason when it is the best interest of ECOLOGY, with a thirty (30) calendar days prior written notification to the RECIPIENT, except as noted below. If this Agreement is so terminated, 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 termination. Non -Allocation of Funds. ECOLOGY's ability to make payments is contingent on availability of funding. In the event funding from state, federal or other sources is withdrawn, reduced, or limited in any way after the effective date and prior to the completion or expiration date of this Agreement, ECOLOGY, at its sole discretion, may elect to terminate the Agreement, in whole or part, or renegotiate the Agreement, subject to new funding limitations or conditions. ECOLOGY may also elect to suspend performance of the Agreement until ECOLOGY determines the funding insufficiency is resolved. ECOLOGY may exercise any of these options with no notification or restrictions, although ECOLOGY will make a reasonable attempt to provide notice. In the event of termination or suspension, ECOLOGY will reimburse eligible costs incurred by the RECIPIENT through the effective date of termination or suspension. Reimbursed costs must be agreed to by ECOLOGY and the RECIPIENT. In no Template Version 12/10/2020 State of Washington Department of Ecology Agreement No: SWMLSWFA-2021-KiCoSNV-000l2 Project Title: IMP Kittitas SW Recipient Name: KITTITAS COUNTY SOLID WASTE DEPARTMENT Page 24 of 24 event shall ECOLOGY's reimbursement exceed ECOLOGY's total responsibility under the Agreement and any amendments. If payments have been discontinued by ECOLOGY due to unavailable funds, the RECIPIENT shall not be obligated to repay monies which had been paid to the RECIPIENT prior to such termination. RECIPIENT's obligation to continue or complete the work described in this Agreement shall be contingent upon availability of funds by the RECIPIENT's governing body. c) By Mutual Agreement ECOLOGY and the RECIPIENT may terminate this Agreement, in whole or in part, at any time, by mutual written agreement. d) In Event of Termination All finished or unfinished documents, data studies, surveys, drawings, maps, models, photographs, reports or other materials prepared by the RECIPIENT under this Agreement, at the option of ECOLOGY, will become property of ECOLOGY and the RECIPIENT shall be entitled to receive just and equitable compensation for any satisfactory work completed on such documents and other materials. Nothing contained herein shall preclude ECOLOGY from demanding repayment of all funds paid to the RECIPIENT in accordance with Recovery of Funds, identified herein. 29. THIRD PARTY BENEFICIARY RECIPIENT shall ensure that in all subcontracts entered into by the RECIPIENT pursuant to this Agreement, the state of Washington is named as an express third party beneficiary of such subcontracts with full rights as such_ 30. WAIVER Waiver of a default or breach of any provision of this Agreement is not a waiver of any subsequent default or breach, and will not be construed as a modification of the terms of this Agreement unless stated as such in writing by the authorized representative of ECOLOGY. End of General Terms and Conditions Template Version 1211012020 dome and Miater0M0 Work Order Kittitas County Jail Purchaser: Kittitas County Courthouse Address: 205 W 6th Ave Ellenburg, WA 98926-3135 Drill to remove Jack Location: Kittitas County Jail Address: 205 W 6th Ave Ellenburg, WA 98926-3135 February 27, 2023 In exchange for TK Elevator's agreement to perform the work described in this Work Order (the "Work Order"), Purchaser agrees to pay TK Elevator for that work and all travel time at the hourly rate described below, reimburse TK Elevator any additional applicable sums that TK Elevator is obligated to pay its technicians in accordance with the collective bargaining agreement, reimburse TK Elevator all parking and toll charges it incurs in connection with that work and travel, and pay TK Elevator's charge for the materials it uses to complete that work. Summary: Elevator, Description , , „_ : Repair category„_� #1 JAIL Time and Material Proactive For further information, please see a detailed Scope of Work on the pages that follow. Mechanic Rate: Four Hundred Nine and 50/100 Dollars $409.50 per hour In the event you have any questions regarding the content of this Work Order please contact me at +1509 6015878. We appreciate your consideration. Regards, Tommie Morris TK Elevator Corporation 9711 E Knox Ave Ste 1 Spokane Valley WA 99206 tommie.morris@tkelevator.com 1+1509 6015878 Notice: No permits or inspections by others are included in this work, unless otherwise indicated herein. Delivery and shipping is included. All work is to be performed during regular working days and hours as defined in this Work Order unless otherwise indicated herein. 2023-2-1464292 1 ACIA-22LHL21 1 February 27, 2023 Time and Mater'2I Work Order 7 7 y,, Scope of Work Time and Material for TKE and third party vendor to drill and remove jack and casing, then install the following: 1 - 24" diameter steel casing using a Rail Mounted limited access indoor drill with various tools and casing in on mobilization with 2 man crew on daily rate. Daily Rate is $3,550.00 (8 -hr. straight time day - portal to portal) One time fee - DBM $7,500.00 roundtrip mobilization of tools, equipment and one time jackshaft casing fabrication fee. One time cost - jack casing 24" diameter casting @ $89.00/If. Associated materials and misc. expendables will be added at invoice cost + 20% overhead + 10% profit. Please Note the following: 1. The above rates are T&M quotation and the anticipated duration is based on unosbrtucted drilling conditions, and is solely an estimate. Estimated durations are NOT a guarantee. 2. Daily rate starts when DBM leaves their Federal Way yard and includes set up and tear down until we return to our yard. 3. DBM fees do not included the cost of substance abuse testing or L£tl filing fees. 4. We will need to utilize some of the parking area for staging of misc. tooling, gang boxes, small fork lift, ecopans, etc. We can coordinate this with a pre con meeting with the faccility manager to see where would be the best place before we move in to minimize the impact to their operations. 5. TKE will get the elevator car to the top of the hoist way giving the highest pick point as possible - which is critical to the speed of the drilling process. 6. After DBM speaking with TKE about the jack, - it sounds like the jack has been backfilled with concrete inside the existing casing. DBM concerns ae that when they start pulling on the jack that the existing casing is goin gto come out with it also. Once DBM removes the jack and the casing does come out, DBM will have to drill and set a new 24" casing. There is a chance this will not happen but need to be prepaired if it does. If it does happen the additional cost would be: see above - One time Jack shaft casing fee. 7. All oil within the jack will be removed by TKE 8. DBM will drill an ovesized open hole to the depth as needed, then set the new casing in sections welding them together. If the soils will not stand open or there is too much water DBM may have to put a water/polymer slurry head in the hole to stabilize the soils or possibly drive casing. Once the casing is set on location, DBM will back fill with the drill spoils if suitable or pea gravel. 9. The best way to deal with the spoils removal if drilling is needed would be to us ECO Pans, they will deliver pans as needed and take away spoils for disposal. If the soils are wet and a water/polymer slurry is used, we may need the services of a vactor truck for the slurry removal as well. 10. TKE will bill elevator mechanic labor separately: Labor rate $409.50 hr per mechanic (Standard labor rate $585 less 30%= $409.50) DBM approximation is: 20 to 25 days +/- on site if a new hole is drilled. If DBM is able to remove the jack with out removing the existing casing and existing casing is suitable to use, the cleaning out of the casing and jack removal should be considerbly less. This price does not include the actual cost of rentals, spoils removal, contaminated materials, backfill, water containment or disposal. These items will be billed based on the above associated materials and misc. expendables listed above. 2023-2-1464292 1 ACIA-22LHL21 1 February 27, 2023 T�me and Mater'M� Work Order TW Terms and Conditions TK Elevator does not assume any responsibility for any part of the vertical transportation equipment other than the specific components that are described in this Work Order and then only to the extent TK Elevator has performed the work described above. No work, service, examination or liability on the part of TK Elevator is intended, implied or included other than the work specifically described above. It is agreed that TK Elevator does not assume possession or control of any part of the vertical transportation equipment and that such remains Purchaser's exclusively as the owner, lessor, lessee, possessor, or manager thereof. Unless otherwise stated herein, TK Elevator's performance of this Work Order is expressly contingent upon Purchaser securing permission or priority as required by all applicable governmental agencies and paying for any and all applicable permits or other similar documents. It is agreed that TK Elevator's personnel shall be given a safe place in which to work. TK Elevator reserves the right to discontinue its work in the location above whenever, in its sole opinion, TK Elevator believes that any aspect of the location is in any way unsafe until such time as Purchaser has demonstrated, at its sole expense, that it has appropriately remedied the unsafe condition to TK Elevator's satisfaction. Unless otherwise agreed, it is understood that the work described above will be performed during regular working days and hours which are defined as Monday through Friday, 8:00 AM to 4:30 PM (except scheduled union holidays). If overtime is mutually agreed upon, an additional charge at TK Elevator's usual rates for such work shall be added to the price of this Work Order. In consideration of TK Elevator performing the work described above Purchaser, to the fullest extent permitted by law, expressly agrees to indemnify, defend, save harmless, discharge, release and forever acquit TK Elevator, its employees, officers, agents, affiliates, and subsidiaries from and against any and all claims, demands, suits, and proceedings made or brought against TK Elevator, Its employees, officers, agents, affiliates and subsidiaries for loss, property damage (including damage to the equipment which is the subject matter of this Work Order), personal injury or death that are alleged to have been caused by Purchaser or any others in connection with the presence, use, misuse, maintenance, installation, removal, manufacture, design, operation or condition of the vertical transportation equipment that is the subject of this Work Order, or the associated areas surrounding such equipment. Purchaser's duty to indemnify does not apply to the extent that the loss, property damage (including damage to the equipment which is the subject matter of this Work Order), personal injury or death is determined to be caused by or resulting from the negligence of TK Elevator and/or its employees. Purchaser recognizes, however, that its obligation to defend TK Elevator and its employees, officers, agents, affiliates and subsidiaries under this clause is broader and distinct from its duty to indemnify and specifically includes payment of all attorney's fees, court costs, interest and any other expenses of litigation arising out of such claims or lawsuits. Purchaser expressly agrees to name TK Elevator along with its officers, agents, affiliates and subsidiaries as additional insureds in Purchasers liability and any excess (umbrella) liability insurance policy(ies). Such insurance must insure TK Elevator, along with its officers, agents, affiliates and subsidiaries for those claims and/or losses referenced in the above paragraph, and for claims and/or or losses arising from the negligence or legal responsibility of TK Elevator and/or its officers, agents, affiliates and subsidiaries. Such insurance must specify that its coverage is primary and non-contributory. Purchaser hereby waives the right of subrogation. 2023-2-14642921 ACIA-22LHL21 1 February 27, 2023 TK Elevator shall not be liable for any loss, damage or delay caused by acts of government, labor, troubles, strikes, lockouts, fire, explosions, theft, riot, civil commotion, war, malicious mischief, acts of God, or any cause beyond its control. TK Elevator Corporation shall automatically receive an extension of time commensurate with any delay regarding the work called for in this Work Order. Should loss of or damage to TK Elevator's material, tools or work occur at the location that is the subject of this Work Order, Purchaser shall compensate TK Elevator therefor, unless such loss or damage results solely from TK Elevator's own acts or omissions. If any drawings, illustrations or descriptive matter are furnished with this Work Order, they are approximate and are submitted only to show the general style and arrangement of equipment being offered. Work Order. Purchaser shall bear all cost(s) for any reinspection of TK Elevator's work due to items outside the scope of this Work Order or for any inspection arising from the work of other trades requiring the assistance of TK Elevator. Purchaser expressly agrees to waive any and all claims for consequential, special or indirect damages arising out of the performance of this Work Order and specifically releases TK Elevator from any and all such claims. A service charge of 1.5% per month, or the highest legal rate, whichever is less, shall apply to delinquent accounts. In the event of any default of any of the payment provisions herein, Purchaser agrees to pay, In addition to any defaulted amount, any attorney fees, court costs and all other expenses, fees and costs incurred by TK Elevator in connection with the collection of that defaulted amount. Purchaser agrees that this Work Order shall be construed and enforced in accordance with the laws of the state where the vertical transportation equipment that is the subject of this Work Order is located and consents tojurisdiction of the courts, both state and Federal, of that as to all matters and disputes arising out of this Work Order. Purchaser further agrees to waive trial by jury for all such matters and disputes. The rights of TK Elevator under this Work Order shall be cumulative and the failure on the part of the TK Elevator to exercise any rights given hereunder shall not operate to forfeit or waive any of said rights and any extension, indulgence or change by TK Elevator in the method, mode or manner of payment or any of its other rights shall not be construed as a waiver of any of its rights under this Work Order. In the event any portion of this Work Order is deemed invalid or unenforceable by a court of law, such finding shall not affect the validity or enforceability of any other portion of this Work Order. This Work Order shall be considered as having been drafted jointly by Purchaser and TK Elevator and shall not be construed or interpreted against either Purchaser or TK Elevator by reason of either Purchaser or TK Elevator's role in drafting same. In the event Purchaser's acceptance of the work called for in this Work Order is in the form of a purchase order or other kind of document, the provisions, terms and conditions of this Work Order shall exclusively govern the relationship between TK Elevator and Purchaser with respect to the work described herein. Time and Mvi ate r'W Work Order 0 Acceptance This proposal, together with the terms and conditions which are expressly made a part of this proposal and agreed to, when signed and accepted by the Purchaser and approved by an officer or an authorized representative of TK Elevator shall constitute exclusively and entirely the contract between the parties and all prior representation or agreements, whether written or verbal, not incorporated herein, are superseded. No changes in or addition to this agreement will be recognized unless made in writing and properly executed by both parties. &MUMtah-163C ounty,Gourthouseaer):By:—L (Signature of Authorized Individual) (Signature of Branch Representative) Patti Stace (e �it� L� lS wA-,4-� Jonathan Powell (Print or Type Name) Branch Manager (Print or Type Title) (Date Please contact (Date of Execution) to schedule work at the following phone number 2023-2-1464292 1 ACIA-22LHL21 1 February 27, 2023 4 ENERGY SERVICES PERFORMANCE-BASED CONTRACT McKinstry Essention, LLC Project No. 206119 Pursuant to RCW 39.35A et seq., this Energy Services Performance -Based Contract ("Contract") is made and entered into as of this day, , by and between McKinstry Essention, LLC, a Washington limited liability company ("McKinstry" or "ESCO") and Kittitas County ("Owner" or "Customer"). McKinstry enters into this Contract in reliance on Customer's representations concerning the appropriateness and validity of the procurement mechanism(s) under which this contract is procured. Customer acknowledges such reliance by McKinstry. RECITALS The Owner owns and operates facilities and wishes to acquire equipment and services to reduce energy costs and related expenses in the facilities. ESCO has experience and technical management capabilities to identify and evaluate energy cost saving opportunities, and provide for engineering, packaging, procurement, installation, maintenance, and measurement of cost-effective energy and water cost saving measures ("CSMs"), also known as Energy Conservation Measures ("ECMs"), and Facility Improvement Measures ("FIMs"). Following a competitive selection process, in accordance with the provisions of RCW 39.35A et seq., ESCO was selected to perform one or more investment grade audits, and pursuant to the Investment Grade Audit Proposal, dated August 1, 2022 has delivered, or shall deliver to the Owner an Energy Services Proposal ("ESP") for each phase of work, which includes an assessment of the energy consumption characteristics of the Owner's facilities, and the identification and evaluation of viable FIMs, as well as estimates of expected energy and operational savings and associated project costs for each recommended FIM, including all capital and infrastructure improvement projects to be included in that phase of work. Each ESP shall represent a separate phase of work. The Owner desires to contract with ESCO for the design, installation, maintenance, and measurement of the FIMs all as set forth herein pursuant to RCW 39.35A et seq. ESCO and the Owner acknowledge and agree that the purpose of this Contract is to achieve the FIMs contemplated by this Contract to the benefit the Owner, and all agree to cooperate to achieve the purpose of this the attached schedules, exhibits, and appendices consist of the planned measures to improve the energy efficiency of the Owner's facilities. Should the Owner desire to move forward with additional phases, the Owner and ESCO will execute contract amendments or modifications by adding additional schedules, exhibits or appendices, and the terms and conditions of this Contract will remain the same and also govern all additional phases. Each Phase of work may be separated into any number of Groups of Work for the purpose of efficiently scheduling the design and installation of the work. The aggregate sum of all Groups of Work within a Phase of work shall equal the total scope of work for that Phase. ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT NOW, THEREFORE, the parties agree as follows: SECTION 1. ENERGY MANAGEMENT PLAN Section 1.1. Plan Details. ESCO has or shall prepare a final ESP for each phase of work. The ESP for the first phase of work should be labeled Appendix A-1, the Audit Report for the second phase of work should be labeled Appendix A-2, and so on until all phases of work are identified. Each ESP shall include all identified FIMs for that particular phase of work and shall be approved and accepted by the Owner and amended to this contract. Section 1.2. Schedules, Exhibits and Appendices. A series of Schedules, Exhibits and Appendices as set forth below and are incorporated herein and made a part of this Contract if applicable. Schedules: Schedule A General Description of Project Scope Schedule B Energy Savings Guarantee and Projected 1 -Year Cost -Avoided Energy Savings Schedule C Compensation to ESCO, Budgeted Project Costs and ESCO Labor Rates Schedule D Baseline Energy Consumption Schedule E Savings Measurement & Calculation Formulae; Methodology to Adjust Baseline Schedule F Construction and Installation Schedule Schedule G Systems Start -Up and Commissioning Schedule H Standards of Comfort Schedule I ESCO's Maintenance Responsibilities Schedule J The Owner's Maintenance Responsibilities Schedule K ESCO's Training Responsibilities Schedule L Pre -Existing Service Agreements Schedule M Current and Known Capital Projects at the Premises Schedule N Projected Financial Performance Exhibits: Exhibit I Sample Notice of Substantial Completion & Commencement of Energy Appendices: Appendix A: Energy Services Proposal ("ESP") for each phase of work Appendix B: Investment Grade Audit Proposal dated August 1, 2022 ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT 2 Savings Exhibit II Operations and Maintenance Manuals Exhibit III Equipment Warranties Exhibit IV Close -Out Documents Exhibit V Progress Payment Application Form Appendices: Appendix A: Energy Services Proposal ("ESP") for each phase of work Appendix B: Investment Grade Audit Proposal dated August 1, 2022 ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT 2 Section 1.3. Order of Interpretation. In the event of any inconsistencies between the documents that make up the Contract as set out in section 1.2, the documents shall govern in the following order: this document, the Exhibits and Schedules, Appendix A for each phase of work, then Appendix B. SECTION 2. ENERGY USAGE RECORDS AND DATA The Owner has furnished or shall furnish (or cause its energy suppliers to furnish if reasonably possible) to ESCO, upon request, all of its records and complete data concerning energy usage and energy-related maintenance for the premises described in Schedule A (General Description of Project Scope) in addition to Pre -Existing Equipment Inventory, including the following data for the most current twenty-four (24) month period: utility records; building use schedules and occupancy information; descriptions of any changes in the building structure or its heating, cooling, lighting, or other systems or energy requirements; descriptions of all energy consuming or saving equipment used in the Premises; bills and records relating to maintenance of energy-related equipment, and a description of energy management procedures presently utilized. If requested, the Owner shall also provide any prior energy audits of the Premises and shall make current employees who are familiar with such records reasonably available for consultations and discussions with ESCO. By the seventh (7th) working day after receipt, the Owner shall provide ESCO with copies (hard or electronic) of all energy bills for the Premises that it has received for the preceding month. Upon receipt of the required information, ESCO shall calculate the savings in accordance with the agreed-upon calculation formulae in Schedule E (Savings Measurement & Calculation Formulae; Methodology to Adjust Baseline). Should any utility data be available electronically, a copy shall be gathered directly by ESCO and shall not be delivered to ESCO by the Owner. In the event energy bills are unavailable, such unavailable information will cause the projected energy savings set forth in Schedule N (Projected Financial Performance) (the "Projected Energy Savings") to be used in the savings calculation. Prior to using the Projected Energy Savings for use in the savings calculation, ESCO shall notify the Owner in writing, and the Owner shall have thirty (30) days after receipt of such notice to conduct a search and to supply the information requested, should such information become available, in order to avoid ESCO from using their Energy Savings Projections. SECTION 3. COMMENCEMENT DATE AND TERMS; INTERIM PERIOD; NOTICE OF COMMENCEMENT OF ENERGY SAVINGS Section 3.1. Commencement Date. The "Commencement Date" shall be the first day in which all of the following have occurred: (i) all schedules are in final form and accepted by the Owner; (ii) ESCO has delivered a notice to the Owner that it has installed and commenced operating all of the scope of work specified in Schedule A (General Description of Project Scope) (the "Equipment") and in accordance with the provisions of Section 9 (Construction Schedule and Equipment Installation; Approval) and Schedule G (Systems Start -Up and Commissioning); and (iii) the Owner has inspected and accepted said installation and operation as evidenced by a Certificate of Acceptance, in the form as set forth in Exhibit I (Certificate of Acceptance), for all the Equipment. ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT Section 3.2. Term of Contract; Interim Period. Subject to the following sentence and to the Owner's termination rights under Section 3.3, the term of this Contract shall be equal to the term of the guarantee as defined in Schedule B for each phase of work, plus the Interim period. Nonetheless, the Contract shall be effective and binding upon the parties immediately upon its execution, and the period from Contract execution, and inclusive of the construction period and until the Commencement Date shall be known as the "Interim Period." All energy savings achieved during the Interim Period will apply towards the first year of the Guarantee Period. Section 3.3 Term of Monitoring and Verification Services. Monitoring and Verification Services ("M&V") are those services as set forth in Schedule B and shall begin upon the Commencement Date. M&V shall continue for the period defined in Schedule B and thereafter can be renewed at the Owner's discretion for one, three, or five-year terms for a fee to be negotiated with the ESCO at that time. After the initial minimum period, the M&V will be cancelled unless renewed by the Owner by providing at least sixty (60) days' advance written notice to ESCO of the Owner's intention to renew the M&V. Such cancellation will terminate this Contract as a whole, except for any remaining warranty obligations. The Owner understands, however, that the guaranteed energy savings, as set forth in Schedule B shall remain in effect only so long as ESCO provides such M&V. If the M&V is cancelled at any time other than the end of a contract year (defined as the period of time lasting 365 days from commencement and renewing upon expiration provided Energy Savings Guarantee is in effect) for reasons other than ESCO's default, ESCO shall have no Guaranteed Energy Savings obligation for that partial year. Section 3.4. Notice of Commencement of Energy Savings. A Notice of Commencement of Energy Savings ("NCES") shall be issued for each Phase of Work when the ESCO has installed and commenced operating all of the scope of work within the Phase of Work, exclusive of punch list items, and the equipment has been started up and commissioned per Schedule G (Systems Start -Up and Commissioning). The Owner shall have ten working days (10) to review the NCES and report any discrepancies to the ESCO. If the Owner does not respond within the ten (10) working day period the NCES shall be considered accepted by the Owner. For purposes of this section, working days shall be Monday through Friday excluding holidays as set by the Owner's calendar. SECTION 4. COMPENSATION TO ESCO Section 4.1. Measurement and Verification Fees. No later than thirty (30) days after the first NCES, the Owner shall pay to ESCO the M&V fee in the amounts and as scheduled in Schedule C. Section 4.2. Proiect Total. The Owner shall pay ESCO the Contract Sum for ESCO's performance of this Contract in accordance with the provisions for open pricing, billing procedures, and progress payments set forth in Sections 4.3, 4.5, and 4.6, respectively. The "Contract Sum" is the total of Construction Costs, ESCO Fees and other costs (as defined in Sections 4.7 and Schedule C) provided that in no event shall the "Contract Sum" exceed the amount shown as the "Guaranteed Maximum Implementation Cost" in Schedule C, Budget Summary Table, other than additional costs approved by the Owner. ESCO acknowledges and agrees that it is the purpose and intent of this Contract and all parties that the FIMs identified in the ESP be designed, installed, measured, and verified, all as specifically provided for in this ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT 4 Contract, for the Guaranteed Maximum Implementation Cost (GMIC), and ESCO is responsible to achieve this end, for no additional cost, except as specifically provided for in this Contract. Section 4.3. Open Book Pricing. Open book pricing is required, such that ESCO will fully disclose all direct construction costs, including all Subcontract Costs and Equipment Costs. These costs, excluding ESCO fixed fees (fixed fees: Investment Grade Audit, Design, Construction Administration, Overhead, Fees, ESCO M&V Costs, Warranty Management and Construction Bond) will be reconciled to the Owner upon final completion in the event of any construction cost savings. ESCO will maintain cost accounting records on work performed under actual costs for material. ESCO will afford the Owner access to these records and all related project records and preserve all project records for a period of three (3) years after final payment under this Contract. Section 4.4. Billing Information Procedure. Payments due to ESCO under this Section 4 shall be calculated in accordance with the provisions of the Pricing Breakdown shown in Schedule C, Budget Summary Table. Except for the cost of the DES and M&V costs, ESCO shall provide the Owner with an itemized monthly invoice of amount due along with any other evidence reasonably required by the Owner to demonstrate amount of required payment. ESCO fixed fees (other than ESCO M&V costs) shall be invoiced and substantiated on a percent complete basis. All invoices submitted by ESCO, as shall be due and payable within thirty (30) days of receipt of the invoice. The Owner shall have ten (10) working days from the date of receipt of said invoices and all supporting documentation to notify ESCO of any irregularity in the billing. The failure of the Owner to provide notice of disagreement within said ten (10) working -day period shall be deemed agreement with the information or calculations set forth in that particular invoice, except in cases where Owner does not have full information and later learns of additional information that would cause it to disagree with a particular invoice. The Owner shall remit payment within ten (10) calendar days after the later of receipt of said invoice. Interest at a rate equal to the maximum rate permitted by law will accrue on all unpaid balances commencing ten (10) calendar days after invoice is due. For purposes of this section, working days shall be Monday through Friday excluding holidays as set by the Owner's calendar. ESCO will provide a retention bond at ESCO's expense. Section 4.5. Progress Pam. The application for progress payment shall be made monthly in a form similar to that attached hereto as Exhibit V (Progress Payment Application) and shall constitute a representation by ESCO to the Owner that the design and construction have progressed to the point indicated, and ESCO is entitled to payment in the amount requested. At the time of the Commencement Date, and upon receipt by the Owner of the close out documents identified in Exhibit IV (Close Out Documents), the Owner shall pay to ESCO any outstanding invoices. Section 4.6. Cost of Work (See Schedule C, Project Budget Summary Table). Costs of the Work are: A. Subcontract Costs. These shall include payments made by ESCO to subcontractors in accordance with the requirements of the subcontracts, including sales tax and change orders. Subcontract fees can include, but are not limited to, fees for professional services as required to meet the Owner's requirements, or to perform particular site or building specific studies as requested by the Owner. Subcontract fees can ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT 5 include fees paid to ESCO divisions performing work in a manner similar to that of subcontractors. B. Equipment/Supplies Costs. These shall include all items purchased directly by ESCO (not by a subcontractor) that become part of the installation, including excess equipment, supplies and inventory that will become part of the installation, including any sales tax or use tax. C. Miscellaneous Costs/General Conditions. These shall include all direct costs incurred by ESCO (not paid for through a subcontractor) that do not become part of the installation and that are specifically attributable to this project. Direct cost includes, but is not limited to, permits, fees, travel costs, shipping, copying, office and third party rentals, project office improvement expenses, office expenses, labor for project management and site supervision, M&V set-up, mobilization, de -mobilization, temporary power, data, internet, and all wireless communication costs. All Direct costs shall be subject to a reasonable and necessary standard. Section 4.7. Excluded from Costs of the Work. The Costs of the Work shall not include: A. Wages or salaries of ESCO's personnel NOT involved in the development, design, or implementation of the project. This exclusion does not include ESCO personnel that are involved in self -performed work, project development, project implementation, project management, performance assurance, and otherwise billable to the project. B. Costs, other than costs included in written change orders approved by the Owner that would cause the Guaranteed Maximum Implementation Cost to be exceeded. C. Legal, mediation, and arbitration costs incurred by ESCO and relating to the project, except for legal fees recoverable under Section 21.1. D. Errors or omissions associated with design in coordination, scheduling and interfacing of various work in the separate work categories or divisions shall not increase the Guaranteed Maximum Implementation Cost, but are reimbursable within the Guaranteed Maximum Implementation Cost. Included in Table 4.1 Section 4.8. Refunds and Rebates. Trade discounts, rebates, refunds and amounts received from sales of surplus materials or equipment shall accrue to the Owner and ESCO shall use its best efforts to assist the Owner in providing information to allow the Owner to secure all available refunds and rebates. Section 4.9. Pricing Details. A. Upon the execution of a Certificate of Acceptance, if the Total Project Cost is less than the Guaranteed Maximum Implementation Cost, then the difference between the actual and estimated costs may, at the Owner's discretion, be used to implement more projects per the terms of this Contract, provided that the difference is sufficient to fund additional projects. ESCO shall apply the fee structure to those additional projects per Schedule C, Project Budget Summary Table. For purposes of those additional projects, a ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT 6 new Certificate of Acceptance shall be executed which date shall be the Commencement Date for purposes of this Contract as to those projects only. B. In the event the Owner issues change orders that increase costs, the amount of those cost increases shall be identified by ESCO and accounted for in a separate budget beyond the original GMIC [see Section 4.2]. It will be the Owner's responsibility to pay these costs as the Project is being constructed. ESCO shall use the mark-up structure indicated in Schedule C, Project Budget Summary Table, as the original basis for the pricing of change orders. However, if either party believes that the scale and/or scope of the change order is not properly reflected in the pricing in Schedule C, then the parties will negotiate a mutually agreed upon fee for the specific change order and record it in writing, which writing may be satisfied by authorized persons from both parties signing the change order. SECTION 5. PAYMENTS BY ESCO Section 5.1. Energy Savings Guarantee. ESCO has formulated and, subject to the adjustments provided for in Section 15 (Material Changes), has guaranteed the annual level of energy savings to be achieved as a result of the installation and operation of the Equipment and provision of services provided for in this Contract, such services being those specified in Schedule I (ESCO's Maintenance Responsibilities) and in accordance with the Savings Calculation Formula as set forth in Schedule E (Savings Measurement & Calculation Formulae; Methodology to Adjust Baseline). The Energy Savings Guarantee is set forth in annual increments for the term of the Contract as specified in Schedule B. The guarantee period ("Guarantee Period") for the Energy Savings Guarantee begins on the Commencement Date and continues for the term of this Contract, unless earlier terminated pursuant to this Contract. Section 5.2 Review and Reimbursement/Reconciliation. Annually, during the Guarantee Period, and no more than sixty (60) days after the end of the Guarantee year, ESCO shall perform a review and reconciliation to determine the actual achieved energy savings (subject to any adjustments made for Material Changes) when compared to the Energy Savings Guarantee for that Guarantee year and shall submit to the Owner a report with a precise calculation of savings. If ESCO has failed to achieve the annual Cost -Avoided Energy Savings Guarantee specified in Schedule B, ESCO shall pay to Owner the difference between the annual Cost -Avoided Energy Savings Guarantee and the amount of actual cost -avoided energy savings achieved at the Premises. Any payment due will be made by ESCO within thirty (30) days after signed acceptance of the annual report by the Owner. Interest at a rate equal to 4% per annum will accrue on all unpaid balances commencing ten (10) calendar days after the payment was due. In the event of any disagreement in the amount payable by ESCO, the Owner shall notify ESCO in writing of the alleged discrepancy within 30 days. Any amounts not in dispute shall be paid in accordance with this section. When the actual total cost -avoided savings in any one-year, during the Guarantee Period, exceeds the Energy Savings Guarantee as set forth in Schedule C, such excess savings shall be credited toward the actual achieved savings for the following year to the fullest extent allowed by law. Excess savings from any group of work can be credited to any other group of work within any one year. Also, excess energy savings in any one Guarantee year will be used to reimburse the ESCO for any payments made by ESCO to cover a shortfall in previous years on any phase of ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT 7 work. Energy savings generated during the Interim Period will accrue towards the first year Guarantee. ESCO and the Owner agree to work in good faith to resolve any disagreement over the calculation of the energy savings. Should the parties be unable to resolve their disagreement as to the calculation of energy savings, then either party will provide written notice to the other and the parties will then agree that an independent auditor will be engaged to provide a binding decision on whether the calculation of savings or deficiencies, as prepared by ESCO, is fairly stated in accordance with this Contract. If the parties cannot agree upon an auditing firm, then each shall designate a firm, and the two designated firms shall identify a mutually agreeable third firm and such third firm alone shall perform the audit. The independent auditing firm shall include in its report any exceptions determined by its review. Each party agrees to reasonably cooperate with the auditing firm, including, without limitation, delivering to such firm any records, documents or information reasonably requested in electronic format, if available, or otherwise. Any payments between the parties that are necessary to resolve any irregularities identified in the review will be made within sixty (60) days after submission of the review to the parties. If the audit is called by the ESCO or the Owner, the following structure will be applied to paying for the audit: Ifthe independent auditor determines that ESCO's determination of the difference between the annual Energy Savings Guarantee and the amount of the actual energy saving achieved at the Premises was in error in the Owner's favor, ESCO shall pay the entire cost of the audit; however, if ESCO's determination of the Energy Savings Guarantee is not in error or is in error in the ESCO's favor, the Owner shall pay for the entire cost of the audit. In any case, the calculation of energy savings shall be changed to reflect the findings of the audit, and the calculations of savings relating to the Energy Savings Guarantee will be modified to reflect such. SECTION 6. PERMITS AND APPROVALS: COORDINATION Section 6.1. Permits and Approvals. ESCO shall be responsible for timely obtaining all necessary installation/building permits. The Owner shall use its reasonable efforts to assist ESCO in obtaining all necessary installationibuilding permits (operating permits are the responsibility of the Owner) and approvals for installation of the Equipment. The Equipment and the installation and operation of the Equipment by ESCO shall at all times conform to all federal, state and local code requirements. ESCO shall furnish copies of each permit or license, which is required of it to perform the work, to the Owner before ESCO commences the portion of the work requiring such permit or license. ESCO shall pay for plumbing and electrical permits required by the authority having jurisdiction. ESCO shall be reimbursed within the GMIC for all licenses and permits, fees and charges for connections to outside services and for the use of municipal or private property for storage of materials, parking, utility services, temporary obstructions, enclosures, opening and patching of streets, etc., arising from the construction and completion of the installation and maintenance of the Equipment contemplated by this Contract, and as agreed to by ESCO and the Owner. Section 6.2. Coordination During Installation. Owner and ESCO shall cooperate to coordinate the activities of ESCO's equipment installers with the employees and agents of the ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT 8 Owner. ESCO shall make reasonable attempts to minimize disruptions to Owner operations. Efforts to accommodate this shall include night and weekend work. ESCO shall not commit or permit any act that will materially interfere with the performance of business activities conducted by the Owner or its employees, agents or contractors without prior written approval. The Owner shall not permit any act that will interfere with the ESCO'S ability to perform the work in a workmanlike manner. The Owner shall assign/designate a representative to be the point -of -contact for ESCO. The Owner hereby designates Patti Stacey as the representative (the "Representative"). The Representative shall have the necessary authorization to authorize ESCO to implement the work associated with this Contract. Responsibilities of the Representative shall include, but are not limited to, reviewing and approving the project schedule, design drawings and specifications, receipt and review and approval/disapproval of ESCO invoices, contract amendments and Certificates of Acceptance. SECTION 7. LOCATION AND ACCESS Subject to Section 6.2 (Coordination During Installation) and Section 18 (Property/Casualty/Insurance; Indemnification), the Owner shall provide sufficient space on the Premises for the installation and operation of the Equipment. ESCO is responsible for providing secure storage for the Equipment, tools and supplies in the space provided. The Owner shall provide reasonable access to the Premises for ESCO to perform any function related to this Contract during regular business hours, or such other reasonable hours as may be requested by ESCO and acceptable. The Owner shall not unreasonably restrict ESCO's access to Premises to make emergency repairs as ESCO may determine are needed. SECTION 8. PERFORMANCE BY ESCO ESCO shall perform all tasks/phases under the Contract, including construction, and shall install the Equipment in such a manner so as not to harm the structural integrity of the buildings or their operating systems and so as to conform to the standards set forth in Schedule H (Standards of Comfort) and the construction schedule specified in Schedule F (Construction and Installation Schedule). ESCO shall repair and restore to its original condition, as it existed immediately prior to damage, any area of damage caused by ESCO's performance under this Contract. The Owner reserves the right, but is not obligated, to review the work performed by ESCO, relative to accepted industry codes and standards, and to work with ESCO to take certain corrective action if, in the collective decision between the Owner and ESCO, the structural integrity of the Premises or its operating system is or will be harmed and is substantiated and quantifiable. ESCO shall remain responsible for the professional and technical accuracy of all services performed, whether by ESCO, or its subcontractors or others on its behalf, throughout the term of this Contract, and all such services shall meet, at a minimum, all applicable industry standards and codes. The Owner's or the Representative's approval of the project schedule, design drawings and specifications, ESCO invoices, contract amendments, Certificates of Acceptance, or other similar documents shall not constitute a waiver of any rights or claims which the Owner may have under this Contract including, without limitation, any claim for failure of such documents, or any part thereof, to comply with this Contract, applicable governmental requirements or for failure of such ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT 9 documents, or any part thereof, to conform with any other part of the documents, any of which failure shall be corrected by ESCO. SECTION 9. CONSTRUCTION SCHEDULE AND EQUIPMENT INSTALLATION; APPROVAL Section 9.1. Construction Schedule. Construction and equipment installation shall proceed in accordance with the construction schedule approved by the Owner and attached hereto as Schedule F (Construction and Installation Schedule). Section 9.2. Systems Startup and Equipment Commissioning. ESCO shall conduct a thorough and systematic performance test of the installed Equipment in accordance with the procedures to be provided during the construction period as noted in Schedule G (Systems Start - Up and Commissioning) and prior to final acceptance by the Owner. ESCO shall be responsible for correcting and/or adjusting all deficiencies in systems and Equipment operations in a timely manner during system commissioning procedures. Section 9.3. Inspection and Final Approval. The Owner has the right to inspect, test and approve the work conducted in the Premises during construction and operation. The Owner shall have the right to review and access to the account books, records, and other compilations of data that pertain to the performance of the provisions and requirements of this Contract. Records shall be kept on a generally recognized accounting basis, and calculations will be kept on file in legible form and retained for three (3) years after the expiration of the term of this Contract and any renewals relevant thereto. SECTION 10. STANDARDS OF COMFORT The standards set forth in Schedule H (Standards of Comfort) are guidelines used to evaluate the FIMs in this program. It is understood that existing and installed equipment may not allow for exact times and temperatures to be met, but every effort will be made to meet such standards as the Guaranteed Maximum Implementation Cost, equipment and project design allow. The Owner also retains the right to make further control and schedule adjustments beyond the standards listed in Schedule H, only in an effort to provide further energy savings. In the case where this produces a Material Change per section 15, the Owner will inform the ESCO in writing of the specific changes and/or adjustments, wherein the ESCO will adjust the baseline and Energy Savings Guarantee, as necessary. All costs associated with the changes and/or adjustments are the sole responsibility of the Owner. SECTION 11. WARRANTIES AND COMPATIBILITY Manufacturer's Warranties: ESCO covenants and agrees that the Equipment, installed pursuant to this Contract is or will be new, in good and proper working condition, and covered by applicable manufacturers' warranties covering all parts and equipment performance. Demonstrators, previously rented, refurbished, or reconditioned items are not considered "new" except as specifically provided in this section. "New" means items that have not been used previously and that are being actively marketed by the manufacturer. Equipment may contain new or minimal amounts of recycled or recovered parts that have been reprocessed to meet the manufacturer's new product standards. Equipment must have the Owner as its first customer and ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT 10 must not have been previously sold, installed, demonstrated, or used in any manner (such as rentals, demonstrators or trial units). Equipment offered must be provided with a full, unadulterated, and undiminished new item warranty against defects in workmanship and materials. The warranty is to include replacement, repair, and any labor for the warranty period. ESCO further agrees: to deliver to the Owner for inspection and approval all such written warranties, which shall be attached and set forth as Exhibit III (Equipment Warranties); to transfer warranties to the Owner; to assist the Owner to pursue the Owner's rights and remedies against the manufacturer of the Equipment under the warranties in the event of equipment malfunction or improper or defective function, and defects in parts, workmanship and performance; and to notify the Owner whenever defects in equipment parts or performance occur or when warranty rights and remedies are recommended by ESCO. Owner's recourse for equipment warranty issues will be through the manufacturer that issued the warranty. ESCO warranty: ESCO warrants that its Work shall be free from defects in workmanship arising from normal usage for a period of one year from the date of Owner's beneficial use, or date of Substantial Completion, whichever is earlier. THESE WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THOSE OF MERCHANTABILITY AND FITNESS FOR A SPECIFIC PURPOSE. SECTION 12. TRAINING BY ESCO ESCO shall conduct the training program described in Schedule K (ESCO's Training Responsibilities). ESCO shall provide additional ongoing training when requested by Owner with respect to updated or altered Equipment, including upgraded software, and including newly hired personnel. The cost of additional training shall be borne by the Owner. SECTION 13. EQUIPMENT SERVICE Section 13.1. Actions by ESCO. ESCO shall provide all pre -Acceptance repairs to the Equipment installed under terms of this Contract pursuant to Schedule I (ESCO's Maintenance Responsibilities). ESCO shall provide service and adjustments to the Equipment installed under the terms of this Contract through the date of Commissioning of a specific Group of work. The Owner shall incur no cost above the GMIC for Equipment service, repairs, and adjustments for equipment and services on Schedule I, provided, however, that when the need for maintenance or repairs arises due to vandalism, acts of God or to the negligence or willful misconduct of the Owner or any employee or other agent of the Owner, ESCO may charge for the actual cost of the maintenance or repair insofar as such cost is not covered by any warranty or insurance proceeds. The Owner shall bear all maintenance responsibility for equipment and/or components of a system that were not installed, replaced or refurbished by the ESCO. Section 13.2. Malfunctions and Emergencies. The Owner shall notify ESCO or its designee(s) in writing within twenty-four (24) hours after actual knowledge of the occurrence of: (i) any malfunction in the operation of the Equipment or any preexisting energy related equipment that might materially impact upon the Guaranteed Energy Savings, (ii) any prolonged interruption ESCO (McKinstry)/O WNER/PERFORMANCE CONTRACT 11 or material alteration to the energy supply to the Premises, or (iii) any material alteration or modification in any energy-related equipment or its operation. Where the ESCO has been contacted and is not available and the Owner exercises due diligence in attempting to assess the existence of a malfunction, interruption, or alteration it shall be deemed not at fault in failing to correctly identify such conditions as having a material impact upon the Guaranteed Energy Savings. The Owner shall notify ESCO in writing within twenty- four (24) hours of actual knowledge of any emergency condition affecting the Equipment. ESCO, or its designee(s), shall respond within twenty-four (24) hours and shall promptly proceed with corrective measures. Any confirmed telephonic notice of such conditions shall be followed within three (3) business days by written or electronic notice to ESCO. If the Owner unreasonably delays in notifying ESCO of a malfunction or emergency, and the malfunction or emergency is not otherwise corrected or remedied, such conditions will be treated as a Material Change and the applicable provisions of Section 15 (Material Changes) shall be applied. ESCO will provide the Owner a written record of all service work performed. This record will indicate the reason for the service, description of the problem and the corrective action performed. Section 13.3. Actions by Owner. Except as set forth in Schedule J (the Owner's Maintenance Responsibilities), the Owner shall not move, remove, modify, alter, or change in any way the Equipment or any part thereof in a manner that will harm the energy efficiency of the Equipment, or the Equipment's sequence of operation, or harm its ability to comply with the Standards of Comfort without the prior written approval of ESCO, which shall not be unreasonably withheld, conditioned or delayed except as set forth in Section 10 (Standards of Comfort). Notwithstanding the foregoing, the Owner may take reasonable steps to protect the Equipment if, due to an emergency, it is not possible or reasonable to notify ESCO before taking any such actions. In the event of such an emergency, the Owner shall take reasonable steps to protect the Equipment from damage or injury and shall follow written instructions for emergency action provided in advance by ESCO. Owner agrees to maintain the Premises in good repair and to protect and preserve all portions thereof, which may in any way affect the operation or maintenance of the Equipment. In the event Owner fails or elects not to maintain, preserve or protect the Premises, the affect shall be that Projected Energy Savings may be used for that portion of the Premises adversely affected. SECTION 14. UPGRADING OR ALTERING THE EQUIPMENT ESCO shall at all times have the right, subject to the Owner's prior written approval, which approval shall not be unreasonably withheld, to change the Equipment, revise any procedures for the operation of the Equipment or implement other energy saving actions in the Premises, provided that: A. ESCO complies with the standards of comfort and services set forth in Schedule H (Standards of Comfort) herein; B. such modifications or additions to, or replacement of the Equipment, and any operational changes, or new Equipment, FIMs or procedures are necessary to enable ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT 12 ESCO to achieve the energy savings at the Premises, which shall not increase the GMIC, and; C. All modifications, additions or replacements of the Equipment or revisions to operating or other procedures shall be described in a supplemental Schedule(s) to be provided to the Owner for approval, which shall not be unreasonably withheld, provided that any replacement of the Equipment shall comply with Section 11 (provided that the warranty shall extend for one [1] year from the date of installation) and have equal or better potential to reduce energy consumption at the Premises than the Equipment being replaced. The Owner may elect, at a negotiated rate, to have the ESCO update any and all software to be used in connection with the Equipment in accordance with the provisions of Section 19.1 (Ownership of Certain Proprietary Rights). All replacements of and alterations or additions to the Equipment shall become part of the Equipment described in Schedule A (General Description of Project Scope) and shall be covered by the provisions and terms of Section 9 (Construction Schedule and Equipment Installation; Approval). SECTION 15. MATERIAL CHANGES Section 15.1. Material Change Defined. A Material Change shall include any change in or to the Premises, whether structural, operational or otherwise that reasonably could be expected to increase or decrease annual energy consumption to a degree that it would affect the Energy Savings Guarantee, in accordance with the provisions and procedures set forth in Schedule D (Baseline Energy Consumption), Schedule E (Savings Measurement & Calculation Formulae; Methodology to Adjust Baseline) and Schedule B (Energy Savings Guarantee and Projected 25 Year Cost Avoided Energy Savings). During the Guarantee Period, when the effect on energy savings cannot be accurately determined due to changes that may be Material Changes, Projected Energy Savings for that portion of the Premises undergoing change will be used to determine the actual savings and until the effect of the change can be determined by ESCO. Section 15.2. Reported Material Changes: Notice by the Owner. The Owner shall use reasonable efforts to deliver to ESCO a written notice describing all actual or proposed anticipated Material Changes in the Premises or in the operations of the Premises at least thirty (30) days before any actual or proposed anticipated Material Change is implemented or as soon as is practicable after an emergency or other planned or unplanned event. Written notice to ESCO of changes that result because of an emergency or other situation that precludes advance notification and that are likely to be Material Changes shall be deemed sufficient if given within forty-eight (48) hours after actual knowledge that the event constituting the likely Material Change occurred or was discovered. If the Owner elects not to use the Projected Energy Savings applying to the portion of the Premises adversely affected by the Material Change, ESCO has the right to charge for work required to assess the effect on energy savings for any Material Changes, including but not limited to building additions, new buildings (if not separately metered or otherwise distinguishable from the Energy Savings Guarantee), and new or changed HVAC equipment that requires more than sixteen (16) total hours per year to be spent in calculating their effect on the energy savings. Such ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT 13 hours will be billed at ESCO's then current engineering rates. Before initiating such work, ESCO will notify the Owner in writing of the intent and relevant scope of the work. The Owner, within forty-five (45) days thereafter, shall notify ESCO in writing with permission to proceed at current rates or, alternatively and at no charge, stipulating that the Projected Energy Savings for the portion of the Premises in question shall be used as the actual achieved savings for the purpose of meeting the Energy Savings Guarantee. If ESCO does not receive written notice within the required forty- five (45) days, the Projected Energy Savings for the portion of the Premises in question from the date the Material Change begins will be used in the calculation of energy savings until such time that ESCO approves the work, as long as the scope of work has not changed. Such work is in an addition to the work performed under the Guaranteed Maximum Implementation Cost. If required notice of Material Changes is not given or if the Owner fails to supply ESCO with copies of its applicable monthly utility bills and/or data within the timeframe established, energy savings calculated for the period will be equal to the Projected Energy Savings for the period at the portion of the Premises affected by such oversight. If information or utility bills for the period in question are supplied at a later date other than is permitted, the energy savings calculated for the period will be modified only if such calculated energy savings for the period exceeds the Projected Energy Savings for that period of time. SECTION 16. REPRESENTATIONS AND WARRANTIES Each party warrants and represents to the other that: A. it has all requisite power, authority, licenses, permits, and franchises, corporate or otherwise, to execute and deliver this Contract and perform its obligations hereunder; B. its execution, delivery, and performance of this Contract have been duly authorized by, or are in accordance with, its organic instruments, and this Contract has been duly executed and delivered for it by the signatories so authorized, and it constitutes its legal, valid, and binding obligation; C. its execution, delivery, and performance of this Contract will not breach or violate, or constitute a default under any contract, lease or instrument to which it is a party or by which it or its properties may be bound or affected; or D. it has not received any notice, nor to the best of its knowledge is there pending or threatened any notice, of any violation of any applicable laws, ordinances, regulations, rules, decrees, awards, permits or orders which would materially and adversely affect its ability to perform hereunder. SECTION 17. ADDITIONAL REPRESENTATIONS OF THE PARTIES Section 17.1. By Owner. The Owner, as applicable, hereby warrants and represent as follows: ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT 14 A. Owner shall adhere to, follow and implement the energy conservation procedures and methods of operation to be set forth on Schedule J (the Owner's Maintenance Responsibilities), to be attached hereto and made a part hereof. B. During the Guarantee Period, ESCO shall have the right, with prior notice and without undue interference with the Owner's use and operation of the Premises, to inspect Premises to determine if Owner is complying, and shall have complied with the obligations in subsection (i) above. For the purpose of determining said compliance, the checklist to be set forth at Schedule J (the Owner's Maintenance Responsibilities) as completed and recorded by ESCO during its inspections, shall be used to measure and record said compliance. Owner shall make the Premises available to ESCO for and during each inspection, and shall have the right to witness each inspection. Section 17.2 By Owner. Owner further provides: A. That to the best of its knowledge it has not entered into any undisclosed leases or contracts with other persons or entities regarding the leasing of energy efficiency equipment or the provision of energy management services for the Premises or with regard to servicing any of the energy related equipment located in the Premises that is of an equivalent nature to the equipment and services contemplated by Appendix A. Comparable Pre-existing Service Agreements are listed in Schedule L (Pre-existing Service Agreements). During the term of the Energy Savings Guarantee and provided that ESCO is not in default of this Contract, the Owner shall provide ESCO with copies of any successor or additional leases of energy efficiency equipment and contracts for management or servicing of preexisting equipment at Premises that may be executed from time to time hereafter within sixty (60) days after execution thereof. B. That to best of its knowledge, it has set out current and known capital projects for the Premises, as of the date of this Agreement, in Schedule M (Current and Known Capital Projects at the Premises). Section 17.3. By ESCO. ESCO hereby warrants, represents and promises that: A. before commencing performance of this Contract: (1) it shall have become licensed and otherwise permitted to do business in the state where the work is performed. (2) it shall have provided proof and documentation of required insurance pursuant to Section 18 (Insurance Requirements); all applicable certificates of insurance shall be provided on an annual basis; and (3) it shall submit a properly executed Contractor's Affidavit Concerning Taxes. B. it shall use qualified subcontractors and delegees, licensed and bonded in this state to perform the work so subcontracted or delegated pursuant to the teens hereof; ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT 15 C. it is a business in good standing and is financially solvent, able to pay its debts as they mature and possessed of sufficient working capital to complete and perform its obligations under this Contract; and D. it acknowledges that the Owner has relied on its experience and technical management capabilities to identify, evaluate and recommend the FIMs that are the subject of and to be installed pursuant to this Contract, and it is qualified and possessed of the technical expertise to perform the audit and install the FIMs to the best professional standards as accepted within the industry. SECTION 18. PROPERTY/CASUALTY/INSURANCE: INDEMNIFICATION Section 18.1. General. ESCO shall maintain through the term of this Contract the insurance coverage, outlined below, and all such other insurance as required by applicable law. Within ten (10) days of execution of this Contract, ESCO shall provide evidence of coverage to the Owner and shall update such evidence on an annual basis via a Certificate of Insurance or endorsement, as required by the Owner. Section 18.2. Workers' Compensation / Employers Liability_. Workers' Compensation/ Employers Liability for states in which ESCO is not a qualified self-insured. Limits as follows: A. Workers' Compensation — Statutory B. Employers Liability Bodily Injury by accident $1,000,000 each accident Bodily Injury by disease $1,000,000 each employee Bodily Injury by disease $1,000,000 policy limit Section 18.3. Commercial General Liability. Commercial General Liability insurance with limits of: * $1,000,000 per occurrence for Bodily Injury and Property Damage * $2,000,000 General Aggregate — other than Products/Completed Operations * $1,000,000 Products/Completed Operations Aggregate * $1,000,000 Personal & Advertising Injury Coverage is to be written on an Occurrence form. Coverage is to be issued as on ISO form CG 2010 (10/01), without endorsements that limit the policy terms with respect to: (i) the definition of an Insured Contract, (ii) provisions for severability of interest, (iii) explosion, collapse, underground hazard. Section 18.4. Auto Liability. Auto Liability insurance for owned, hired and non -owned vehicles with limits of $1,000,000 per accident. Coverage is to be written on an Occurrence form. Section 18.5. Professional Liability. Professional Liability insurance with limits of: ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT 16 A. $1,000,000 per occurrence B. $2,000,000 aggregate Coverage is to be written on a Claims -made form. Section 18.6. Excess Liability. Excess Liability insurance. Limits as follows: A. $1,000,000 each occurrence B. $1,000,000 aggregate Coverage is to be written on an Occurrence form. Coverage terms and limits to apply in excess of the per occurrence and/or aggregate limits provided for Commercial General Liability, Auto Liability and Professional Liability. Coverage terms and limits to also apply in excess of those required for Employers Liability. Section 18.7. Endorsements. Policy Endorsements. A. The insurance specified shall contain waivers of subrogation rights against the Owner and its agents, officers, directors and employees for recovery of damages to the extent such damages are covered by the required policies. B. The insurance provided for above shall: (1) for Commercial General Liability and Auto Liability, include the Owner as an additional insured with respect to work performed and services provided under this Contract and any "other insurance" provisions contained in any policy including the Owner as an additional insured shall not apply, (2) provide that the insurance is primary coverage with respect to all insured and shall not be considered contributory insurance with any insurance policies of the customer, and (3) require thirty (30) days' written notice to the Owner, by first class mail, prior to any cancellation of, or refusal to renew the policy. ESCO shall provide thirty (30) days written notice to the Owner of a material change to the policy. Section 18.8. Good Standing. Any insurance, or additional insurance required under this Section 18, shall be covered by an insurance policy with an insurer licensed and in good standing to do business in the state where the work is performed. Section 18.9. Waiver. ESCO waives all rights against the Owner and its agents, agencies, officers, directors and employees for recovery of damages to the extent these damages are covered by the required policies. Policies may contain deductibles but such deductibles shall not be reduced from any damages due to Owner. Section 18.10. No Representation. By requiring insurance herein, the ESCO does not represent that coverage and limits will necessarily be adequate to cover all potential damages. ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT 17 Section 18.11. ESCO Responsibility. To the extent where such damage or injury occurs as a result of ESCO's negligent acts or omissions under this Contract, ESCO shall be responsible for (i) any damage to the Equipment and (ii) any bodily injury, personal injury and tangible property damage, but only if such damage is not covered by insurance required to be maintained by ESCO. Section 18.12. Indemnification. ESCO agrees to indemnify and hold the Owner and its officers, agents, and employees ("Indemnitees") harmless from any and all claims, demands, losses, liabilities, damages, and court awards (including costs, expenses, and attorney fees) to third parties for personal injury or death or physical damage to tangible property, arising from, resulting from, or connected with the services and work performed and equipment installed under this Contract by ESCO, its agents, employees, invitees, guests and subcontractors and subconsultants of any tier, subject to the limitations provided in this Contract, but only to the extent of the fault of ESCO. ESCO's duty to indemnify Indemnities shall not apply to liability for damages arising out of bodily injury to persons or damage to property caused by or resulting from the negligence of Owner, its agents or employees or invitees, or guests, or subcontractors or sub consultants of any tier. ESCO specifically and expressly waives any immunity that may be granted it under any worker's compensation act. Further, this indemnification obligation shall not be limited in any way by any limitation on the amount or type of damages, compensation, or benefits payable to or for any third party under worker's compensation acts, disability benefits acts, or other employee benefits acts; PROVIDED ESCO's waiver of immunity by the provisions of this paragraph extends only to claims against ESCO by Indemnitees, it does not include, or extend to, any claims by ESCO's employees directly against ESCO. This Section 18.12 shall survive termination of this Contract. SECTION 19. OWNERSHIP Section 19.1. Ownership of Design Documents and Certain Proprietary Property Rights. All drawings, reports and materials prepared by ESCO specifically in performance of this Contract (Contract Documents) shall become the property of the Owner. Owner shall be the sole and exclusive owner of the Contract Documents and all revisions, editions and versions thereof made by other than ESCO. Re -use or modification of the Contract Documents for purposes other than originally intended and without ESCO's written permission shall be at the Owner's sole risk. Owner agrees to indemnify and hold ESCO harmless from all claims damages and expenses, including attorneys' fees, arising of such re -use or modification by Owner. ESCO shall retain ownership of all underlying designs, calculations, formulas, patterns, secret inventions or processes, or other intellectual or proprietary rights (collectively "instruments of ESCO's professional services") that are or may be used in the production of Contract Documents. Contract Documents shall be delivered to the Owner by ESCO no later than ninety (90) days after the Commencement Date. If available, such drawings, reports and materials shall be delivered in electronic form, however ESCO will not modify these documents to represent as -built conditions unless specifically contracted to do so. The Owner shall grant to ESCO a perpetual, irrevocable, non-exclusive royalty free license to use all Contract Documents. ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT 18 Section 19.2. Ownership of Existing Equipment. Any equipment and materials removed from the Premises as a result of this Contract shall become the property of the ESCO unless the Owner specifically requests to retain ownership of specific equipment and materials. Such requests shall be made by Owner in writing prior to the execution of this Contract. It is understood and agreed to by both Parties that Owner shall be responsible for and designate the storage location for any equipment and materials that should not be disposed of off-site. ESCO shall be responsible for the disposal of all non -hazardous equipment and materials related to the work designated as disposable off-site in accordance with all applicable laws and regulations regarding such disposal. Section 19.3 Ownership of Equipment. Title to Equipment installed under this Contract shall pass to the Owner upon installation and when full payment is received for such Equipment. SECTION 20. EVENTS OF DEFAULT Section 20.1. Events of Default by the Owner. Each of the following events or conditions shall constitute an "Event of Default" by the Owner: A. any failure by the Owner to pay ESCO any sum due for service and maintenance within thirty (30) days of written notification by ESCO that the Owner is delinquent in making payment and provided that Owner has not declared ESCO in default in its performance under the terms of this Contract; B. any other material failure by Owner to perform or comply with the terms and conditions of this Contract, including breach of any covenant contained herein, provided that such failure continues for thirty (30) days after notice demanding that such failures to perform be cured or if such cure cannot be effected in thirty (30) days, the Owner, shall be deemed to have cured default upon the commencement of a cure within thirty (30) days and diligent subsequent completion thereof, or C. any representation or warranty furnished by the Owner in this Contract, which was false or misleading in any material respect when made. D. If the Owner, through no fault of ESCO, causes either the professional service phases (design, construction management, etc.) or the installation phase to be unreasonably delayed, slowed, or encumbered, for reasons other than set out in Section 22, (i.e., unplanned renovation work, unplanned modernization work, etc.), and such cause is not remedied within ten (10) days after written notice from ESCO, ESCO shall be granted additional time to complete the project, and ESCO and the Owner shall negotiate additional fees, as appropriate, or ESCO may terminate this Contract upon completion of any and all phases work that are in progress at the time of the written notice from ESCO. Section 20.2. Events of Default by ESCO. Each of the following events or conditions shall constitute an "Event of Default" by ESCO: A. the standards of comfort and service set forth in Schedule H (Standards of Comfort) are not provided due to failure of ESCO to properly design, install, maintain, repair or adjust the Equipment except that such failure, if corrected or cured within thirty ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT 19 (30) days after written notice to ESCO demanding that such failure be cured, shall be deemed cured for purposes of this Contract; B. any representation or warranty furnished by ESCO in this Contract is false or misleading in any material respect when made; C. unexcused failure to furnish and install the Equipment and make it ready for use within the time specified by this Contract as set forth in Schedules A (General Description of Project Scope) and F (Construction and Installation Schedule); D. provided that the operation of the facility is not adversely affected and provided that the standards of comfort in Schedule H (Standards of Comfort) are maintained, any failure by ESCO to perform or comply with the terms and conditions of this Contract, including breach of any covenant contained herein except that such failure, if corrected or cured within thirty (30) days after written notice by the Owner to ESCO demanding that such failure to perform be cured, shall be deemed cured for purposes of this Contract, or if such cure cannot be effected in thirty (30) days, ESCO shall be deemed to have cured the default upon the commencement of a cure within thirty (30) days and diligent subsequent completion thereof, E. the filing of a bankruptcy petition whether by ESCO or its creditors against ESCO which proceeding shall not have been dismissed within ninety (90) days of its filing, or an involuntary assignment for the benefit of all creditors or the liquidation of ESCO; F. Any change in ownership or control of ESCO in which the transferee will not accept all rights and obligations under this Contract, unless modified and approved by the parties; or H. Failure by ESCO to pay any material amount due the Owner or perform any material obligation under the terms of this Contract or the Energy Savings Guarantee as set forth in Schedule B, except that such failure, if corrected or cured within ninety (90) days after written notice to ESCO demanding that such failure to perform be cured, shall be deemed cured for purposes of this Contract, or if such cure, other than failure to pay the full amount owed, cannot be effected in ninety (90) days, ESCO shall be deemed to have cured the default upon the commencement of a cure within ninety (90) days and diligent subsequent completion thereof. SECTION 21. REMEDIES UPON DEFAULT Section 21.1. Remedies upon Default by the Owner. In the Event of Default by the Owner, ESCO may exercise any and all remedies at law or in equity, including, without limitation, seeking specific performance, and/or for the recovery of amounts due and unpaid, and/or for damages which shall include all costs and expenses reasonably incurred, including attorneys' fees. Election of one (1) remedy is not a waiver of other available remedies. Section 21.2. Remedies upon Default by ESCO. In the Event of Default by ESCO, the Owner may exercise any and all remedies at law or in equity, including, without limitation, seeking specific performance, and/or for the recovery of amounts due and unpaid and/or for damages, ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT 20 which shall include all costs and expenses reasonably incurred, including attorney's fees. Election of one (1) remedy is not a waiver of other available remedies. Without limiting the foregoing, in the event ESCO defaults in the completion of all or any portion of the acquisition, construction or installation of the Equipment, in accordance with the Schedule F (Construction and Installation Schedule) or the other provisions of this Contract, the Owner may (i) commence or complete all or any portion of the acquisition, construction and/or installation in any commercially reasonable manner or (ii) take all steps necessary to cause the acquisition, construction and/or installation, or applicable portion thereof, to come into compliance with Schedule F (Construction and Installation Schedule), including, without limitation, hiring contractors to perform overtime work and additional days of work as necessary to meet the time frames set forth therein. In such event, the Owner shall have the right to seek reimbursement from ESCO and may offset any expenses incurred against amounts due ESCO without liability for any costs incurred by ESCO, its agents, contractors, subcontractors or employees for any work performed by the Owner subsequent to the date of default, provided that the amounts are reasonable, defined as the cost of the work if performed by ESCO plus 15%. SECTION 22. CONDITIONS BEYOND CONTROL OF THE PARTIES If a party ("performing party") is delayed in the performance of any of its obligations under this Contract due to acts of God, fire, labor disputes, unusual delays in deliveries, unavoidable casualties, insurrections or riots, unforeseen or excessive code determinations by the authority having jurisdiction, pandemic, cyberattack, or other events beyond its control (other than the failure to pay money or the failure to perform this Contract due to the lack of money), this Contract shall at the other party's option (i) remain in effect but said performing party's obligations shall be suspended until the said events shall have ended; or, (ii) be terminated upon ten (10) days' notice to the performing party, in which event neither party shall have any further liability to the other. Understanding that no contingencies have been made for such acts, after the events have ended the parties shall enter negotiations to resolve any additional burdens arising from said acts. The time for performance, and the GMIC, in the case of ESCO, shall be equitably adjusted. This provision excludes economic hardship, and insufficiency of funds on the part of the ESCO. SECTION 23. ASSIGNMENT Section 23.1. Assignment by ESCO. ESCO acknowledges that the Owner is induced to enter into this Contract by, among other things, the professional qualifications of ESCO. ESCO agrees that neither this Contract nor any right or obligations hereunder may be assigned in whole or in part to another firm, except for an affiliate of ESCO, without the prior written approval of the Owner. Notwithstanding the provisions of this paragraph, ESCO shall remain jointly and severally liable with its assignees(s), or transferee(s) for all of its obligations under this Contract unless otherwise agreed to in writing by the Owner. Section 23.2. Assignment by Owner. The Owner may transfer or assign this Contract and its rights and obligations herein to a successor or purchaser of all or any portion of the Premises subject to this Contract or an interest therein. SECTION 24. DISPUTES & DAMAGES ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT 21 Section 24. 1. Generally. In case of dispute between the Parties, the Parties will attempt to negotiate a resolution. If a dispute remains unresolved more than thirty (30) calendar days after the commencement of negotiation, then the Parties shall pursue mediation. If any dispute remains unresolved more than sixty (60) calendar days after the commencement of mediation, then either Party may commence binding arbitration. No litigation will be commenced by either Party unless all of the foregoing steps have been pursued to completion, if and to the fullest extent allowed by law. Section 24.2. Arbitration. All claims and disputes between ESCO and the Owner arising out of, or relating to, this Contract, the breach thereof, or the work or services hereunder, shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association. The prevailing party in any such arbitration shall be awarded its reasonable attorneys' fees and costs, including expert witness expenses. The venue for any arbitration to enforce the provisions of this Contract shall be brought in the county where the work is performed. Section 24.3. Consolidation and Joinder. An arbitration pursuant through this provision may be joined with an arbitration involving the Owner, ESCO, their consultants, design professionals, other contractors, subcontractors, or material or equipment suppliers. The Owner's and ESCO's contracts with other contractors, subcontractors, design professionals, consultants, and material and equipment suppliers shall require such joinder. Section 24.4. Mediation. As a condition precedent to the hearing of any arbitration, ESCO and the Owner shall submit any and all disputes between them to non-binding mediation with the assistance of an experienced mediator. The parties shall each designate a representative with full settlement authority who will participate in the mediation, provided however that any settlement that requires approval of the Owner's governing body under its policies, shall be made subject to such approval, which the Owner shall seek to obtain at the soonest available meeting of the Owner's governing body. The parties shall bear equally all expenses, exclusive of attorneys' fees, associated with the mediation. The venue for any mediation to enforce the provisions of this Contract shall be brought the county where the work is performed. Section 24.5. Waiver and Release of Liability for Consequential Damages. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR SIMILAR, DAMAGES OR LOSSES, INCLUDING LOSS OF PROFITS, ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER BASED IN CONTRACT OR TORT OR ANY OTHER THEORY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SECTION 25. MISCELLANEOUS PROVISIONS Section 25.1 Nonappropriation of Funds. It is understood and agreed that if the Owner is a government entity then this Contract shall in no way or manner be construed so as to bind or obligate either beyond the term of any particular appropriation of funds by the State's Legislature as may exist from time to time. Notwithstanding any provision in this Contract to the contrary, the Owner reserves the right to terminate this Contract in whole or in part if, in its judgment, the Legislature fails, neglects, or refuses to appropriate sufficient funds as may be required for the ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT 22 Owner to continue any payments required under this Contract. All affected future rights and liabilities of the parties hereto shall thereupon cease within thirty (30) days after notice to ESCO. The Owner shall remain liable for all of its rights and liabilities that have accrued prior to the expiration of the thirty (30) day period. Section 25.2. Waiver of Claims/Liens. ESCO shall obtain and furnish, to the Owner, a Waiver of Claims or Liens from each vendor, material manufacturer and laborer in the supply, installation and servicing (pre -acceptance only) of each piece of Equipment. Section 25.3. Compliance with Law and Standard Practices. ESCO shall perform its obligations hereunder in compliance with any and all applicable federal, state, and local laws, rules, and regulations, in accordance with sound engineering and safety practices and in compliance with any and all rules and policies of Owner relative to the Premises. ESCO shall be responsible for obtaining all governmental permits, consents, and authorizations as may be required to perform its obligations hereunder. Failure in this Contract to specifically identify any applicable law does not affect its applicability. Section 25.4. Independent Capacity of the Contractor. It is distinctly and particularly understood and agreed between the parties hereto that the Owner is in no way associated with the employment of labor or the incurring of expenses by ESCO. Said ESCO is an independent contractor in the performance of each and every part of this Contract, and solely and personally liable for all labor and related expenses. Section 25.5. Severability. In the event that any clause or provision of this Contract or any part thereof shall be declared invalid, void, or unenforceable by any court having jurisdiction, such invalidity shall not affect the validity or enforceability of the remaining portions of this Contract unless the result would be manifestly inequitable or unconscionable. Section 25.6. Complete Contract. This Contract, when executed, together with all Schedules, Exhibits and Appendices attached hereto or to be attached hereto, as provided for by this Contract shall constitute the entire Contract between both parties and this Contract may not be amended, modified, or terminated except by a written amendment signed by the parties hereto. Section 25.7. Further Documents. The parties shall execute and deliver all documents and perform all further acts that may be reasonably necessary to effectuate the provisions of this Contract. Section 25.8. Applicable Law. This Contract shall be construed in accordance with, and governed by the laws of the state where the work is performed. Venue shall be in the county where the work is performed. Section 25.9. Notice. All notices to McKinstry shall be written, shall be sent via certified mail or a national courier service or personally delivered, shall consist of one original to Attn: General Counsel, McKinstry, 5005 3`d Ave. S., Seattle, WA 98134, and one original to the primary McKinstry contact for the Work, and shall be deemed delivered when received by the General Counsel. ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT 23 Section 25. 10. Headings. Headings and subtitles used throughout this Contract are for the purpose of convenience only. Section 25.11. Hazardous Materials. Notwithstanding anything to the in this Contract, ESCO shall not provide any services, or incur any liability, related to asbestos or lead based paint or any other kind of hazardous material, including directly or indirectly performing or arranging for the detection, testing, handling, storage, removal, treatment, transportation, disposal, monitoring, abatement or remediation of any contamination at any site at which Work is performed and any soil or groundwater at the site by petroleum or petroleum products, asbestos, PCBs or hazardous, toxic, radioactive or infections substances, including any substances regulated under RCRA, CERCLA or any other federal, state or local environmental laws, regulations, statutes, rules, standards or ordinances including without limitation ionization smoke detectors, ballasts, mercury bulb thermostats, used oil, contaminated filters, contaminated absorbents and refrigerants. In the event ESCO encounters any such materials, ESCO shall immediately notify the Owner and stop work pending further direction from the Owner. The Owner may, in its sole discretion, suspend work on the project pending removal by the Owner of such materials at the Owner's sole cost and expense or terminate this Contract. If the Owner terminates the Contract, all affected future rights and liabilities of the parties hereto shall thereupon cease within thirty (30) days after notice to ESCO. The Owner shall remain liable for all of its rights and liabilities that have accrued prior to the expiration of the thirty (30) day period. The GMIC shall be equitably adjusted and the time for ESCO to perform shall be extended based on impacts associated with such materials and substances. Section 25.12. Public Works Contractor's State License Law. ESCO and its subcontractors and sub -subcontractors shall comply with all laws, government regulations, and orders, and all provisions of this Contract. Section 25.13. Architects or Engineers. If required by the Authority having jurisdiction, construction work done under this Contract must have plans and specifications approved by a licensed architect and/or engineer. Any plans and specifications so required and approved are incorporated herein by reference as part of this Contract. Section 25.14. Presentations to Owner. ESCO shall make presentations as required related to this Contract to the Owner's administration and its governing board and board staff. Section 25.15. Subcontractor Approval. The Owner retains the right to reasonably reject any ESCO-selected subcontractor prior to its commencement of work under this Contract, including ESCO divisions that are performing work, other than commissioning, in a manner similar to that of subcontractors. ESCO must submit names and qualifications of subcontractors at least two (2) weeks in advance of commencement of work and the Owner shall have five (5) days to review such qualifications and provide written notice of the rejection and reasons therefore to the ESCO. If the Owner rejects an ESCO's selected subcontractor, ESCO shall propose another to whom the Owner has no reasonable objection. If the ESCO initially selected subcontractor was reasonably capable of performing the work or services in question, the GMIC and the time for ESCO to perform shall be equitably increased or decreased by the difference, if any, occasioned by such change. The award or rejection of subcontractor bid proposals shall be based on the ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT 24 ESCO's analysis and determination of the most qualified proposal response, at the sole discretion of the ESCO. The Owner shall have the right to stipulate the use of a particular equipment vendor or subcontractor, as long as such stipulation is delivered to the ESCO in writing prior to the final acceptance of the ESP. Should an Owner stipulated equipment supplier or sub -contractor not be able to perform the scope of work or task to the satisfaction of the ESCO, the ESCO shall have the right to engage a separate vendor or sub -contractor to complete the work fourteen (14) days after written notice to the Owner has been delivered and the failure to perform persists. The time for performance, and the GMIC, shall be equitably adjusted. Section 25.16. Bonding Requirements. Contractor shall furnish performance and payment Bonds, each in an amount equal to the Construction Cost. The Bonds shall cover completion of the physical work per the approved design, and shall not guarantee or warranty efficiency or system performance. The Bonds shall not cover any obligation of the contractor to ensure that the work as constructed will result in any particular level of energy savings. Any suit on the Bonds must be brought within the period of one (1) year after substantial completion, as defined in the contract; provided, however, that if this suit limitation is void or prohibited by law, the minimum period of limitation available to sureties as a defense in the jurisdiction of the suit shall be applicable. Section 25.17. As -Built Drawings. Where applicable, ESCO must provide durable, reproducible record drawings from the "as -built drawings" of all existing and modified conditions associated with the project, conforming to typical engineering standards. These should include architectural, mechanical, electrical, structural, and control drawings and operating manuals and will be delivered prior to acceptance. Section 25.18. Operation and Maintenance Manuals. Electronic Operation and maintenance manuals will be provided for the Equipment, or parts thereof installed. Section 25.19. Continuing Activities. The Owner reserves the right to make energy and water improvements and control adjustments to the Premises and to monitor the performance of the installations independently of ESCO. Additionally, the Owner may wish to integrate other identified capital needs with ESCO projects, which may or may not contain energy and water savings opportunities. No credit will go to ESCO for these improvements, and the Owner will monitor these savings separately. The Owner will inform the ESCO in writing of the specific changes and alterations. ESCO may readjust the baselines based on the new information and in accordance with Schedule E (Savings Measurement & Calculation Formulae; Methodology to Adjust Baseline). This Section does not abrogate or alter ESCO's right to make baseline adjustments as set forth in Section 15 or elsewhere in this Contract. Section 25.20. Contract Re -Negotiation. The Owner and ESCO reserve the right to renegotiate the terms of the Contract due to changes in the regulatory or utility climates or the non - discretionary use of energy or if the Owner desires to add sites in addition to those identified in the RFQ. ESCO shall consider the Owner's effort at renegotiation in good faith. This Contract, however, shall not be modified without the written agreement of the Owner and the ESCO. ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT 25 Section 25.2 1. Officials, Agents and Employees of the Parties Not Personally Liable. It is agreed by and between the parties hereto that in no event shall any official, officer, employee or agent of Owner or ESCO, be in any way personally liable or responsible for any covenant or agreement contained in this Contract whether express or implied, nor for any statement, representation or warranty made herein or in any way connected with this Contract. Section 25.22. Drafting Not to be Construed Against any Party. All parties acknowledge and agree that each has had a full opportunity to review and have input into this Contract and that any ambiguity found shall not be construed against any party as drafter. Reference to "year" shall mean calendar year unless a fiscal year is specified. If a fiscal year is specified that year is July 1 through the following June 30. Reference to the "Premises" shall include, as applicable and when required, only a part of the Premises involved or affected. Section 25.23. Signature in Counterparts. This Contract may be executed in counterparts, each of which when so executed shall be deemed an original and all of which taken together shall constitute one and the same agreement. Section 25.24. Project Implementation and "Notice to Proceed" Pending Funding This Agreement is expressly conditional upon funding. In the event the funding mechanism is implemented, and project funding is in place and ready for expenditure, then a formal written "Notice to Proceed," signed by the Owner's representative shall be issued to the ESCO, which, upon receipt, shall activate all terms and conditions of this contract. Section 25.25. Design Process. The ESCO shall be responsible for the development of the design documents to meet the identified scope of work and all applicable codes. The level of detail of the design drawings and specifications must be such to satisfy all permitting and code approvals and to adequately perform the work, as determined by the ESCO. The ESCO shall coordinate with the Owner to allow design review prior to installation of Equipment. Should the Owner direct changes to the scope of work, the project schedule and GMIC will be adjusted accordingly including professional services fees as outlined in Schedule C of this Contract. IN WITNESS WHEREOF, and intending to be legally bound, the parties hereto subscribe their names to this Contract by their duly authorized officers on the date first above written. MCKINSTRY ESSENTION, LLC Printed Name: Dale Silha Title: _Vice President Date: OWNER By: Printed Name i Title: Date: 1 ? I ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT 26 BOND COVERAGE CLARIFICATION Contractor shall furnish performance and payment Bonds, each in an amount equal to the Construction Cost. The Bonds shall cover completion of the physical work per the approved design, and shall not guarantee or warranty efficiency or system performance. The Bonds shall not cover any obligation of the contractor to ensure that the work as constructed will result in any particular level of energy savings. Any suit on the Bonds must be brought within the period of one (1) year after substantial completion, as defined in the contract; provided, however, that if this suit limitation is void or prohibited by law, the minimum period of limitation available to sureties as a defense in the jurisdiction of the suit shall be applicable. CONTRACTOR shall also furnish a retention bond in lieu of retainage held on respective monthly invoices. CUSTOMER NAME: Kittitas County ATTACHMENT FOR THE SPECIFIC CONTRACT TITLED: Energy Services Performance - Based Contract Signed By Customer: Printed Name: Title:— Date: 2 2'Z, ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT 27 Schedule A: General Description of Project Scone See Section 2: Scope of Work in the Energy Services Proposal (ESP) dated February 17, 2023 ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT 28 Schedule B: Energy Savings Guarantee and Projected 1 -Year Cost -Avoided Energy Savings This Performance Contract guarantees the rate of energy consumption as specified in the ESP, which, when multiplied by the utility rates and stipulated hours of operation as agreed upon by ESCO and the Owner, also as specified in the ESP, results in an estimated cost -avoided savings. The rate of energy consumption as specified above is guaranteed for 1 -year for all FIM's included in the ESP. The estimate annual savings included in Table B-1.1 are based on the utility rates as identified in the ESP. Refer to Section 3 of the ESP dated February 17, 2023, for the detailed listing of the utility rates used in the calculation of the annual energy cost avoidance dollars. Summary of Total Estimated Cost Avoided Energy Savings Table B-1.1— Estimated Energy Savings During Initial Guarantee Period Year Estimated Utility Cost Avoided Savings Electricity (Kwh) Year 1 1 $5,204 67,263 Table B-1.1 provides a summary ofthe total estimated project savings based on the scope of work as presented in the ESP dated February 17, 2023. The program currently includes 1 year of M&V for all FIMs, reported annually. The language below defines the start date and duration of M&V Reporting that will be provided for all FIMs, the terms M&V Services and M&V Reporting, the Guarantee Period and the method of energy savings reconciliation during the Guarantee Period. The Notice of Commencement of Energy Savings (LACES) for a Group of work starts the timeline associated with required M&V reporting. Report M&Vo will be submitted within 3 months of the NCES date for each Group of work. M&Vi will be submitted one year from NCES date. ESCO (McKinstry)IOWNER/PERFORMANCE CONTRACT 29 Schedule C: Compensation to ESCO, Budgeted Proiect Costs and ESCO Labor Rates Table 4.1- Budget Summary Co,.It Vse HVAC UDDraoC 7J3712023 /QWLr��� Ruet Fr± LUma S 3t.5731 20% 5 31.573 D95:Dn Fee % 12.Mt D21cen[ a! SUG-Tu1al 5— FlM CD5t ala A 5 22.479 CUnSDUCtlon AGmin Fee ?t B.D'7n Fe1Cen( C! $u(t• 10121 5x52 FIM COSt 3IR A. i S•1.956 OvafDeatl 1D.R40 ForCant c1 Suft TClal Race FIM Cnsl -, i 1 113.731 Prattt % 5.R'i Pcrtr, nt of 5u D•TOIAI 5au FIM Cn;t aid A 4 1.1.9513 Tota! Anoteaslenal SevvlTes [nR F. olu•[t CCnlinDencY % 5.0% N, ­L T.Ul CCGat,,M.n Cual S 9.4913 Total0~Pro tCost TeN t , LUR1D 4 6.959 4 5,957 Total 0v hoa,f Cost A Fee 6.4% 1 Pefc?nt Of SeMV c f5duC,M CC' gemv? 1 5 25.321 Total Xt G"F"teeo Cost 7 Anticipated Draw Schedule Project Billing schedule will be determined before and presented at the project initiation meeting known as the Project Kick -Off meeting. Project Billing includes the IGA fee, Design fee, Bond Costs, and 20% for Design Engineering, equipment selection and procurement of long lead HVAC equipment. This does not include sales tax. All subsequent bills will reflect true progress during implementation based on percentage of completion. The following sample schedule is based on our anticipated progress. Days after Notice to Proceed (NTP) Payment Timing 0 20% 30 5% 60 5% 90 20% 120 30% 150 20% ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT 30 Table C-1 ESCO Labor Rates Stand3 d Rale i•.'i '185 278 370 Contract Rate t•. *) 175 263 3S0 Trace Prow, Manger I49 0 0 Flumb.ng/Plpeflttert'I 169 254 339 Spunkier Fitter(`) 162 243 324 Shee: Meta; (•) I50 225 300 F--urician (•) 169 .21.1 335 Lighting Maint• Worker (•) 62 93 124 Cmpentcrt•5 t22 163 244 Law -c- 80 120 160 1,11arehouse/0riverl•i * 'torhih 112 168 Z24 On /Start Up Rates - Cx Lead 1116 D 0 Sr. Cx Enuirlt& ;•; 176 264 352 Cx Cnsmeer r•1 163 245 326 Cx Spnciatist (•) 1S1 227 302 CX Technician (•) 129 194 258 TAB Tecnniclan 1•, -, •) 183 275 365 Start-up Terhn(can (-, •, x) 195 294 392 TS Sr. Project Manager 209 0 0 TS Project Kamnager 186 0 0 Load Engineer/Cansulrant 199 0 0 Sr-nlor Engincr--/Consultant 192 0 0 Engine?r/Con-4:tant 166 0 0 Specialist 165 D 0 Site Supermteldent 1'1 1133 275 366 Site Coordinator 167 161 234 Site Safety 1.5 ISE 0 !) Project Engince-- 156 234 312 Purcha rig /. GSR / Dispatch 112 166 224 Administrative Assistant 107 L61 Z14 Ul al4r.0 rvx+uu :&• •rnllW WAN l:Gaa uJ n.dwulJ.u4w.•« w• G•uvl (t••N:a•s k, w +:•pa+5lnc rartrin,aroNcn+ • 1r(.In iUrw-Fa:rtlst ltru M�..Imn G1a/.V lv ala RA' a -tarry F•.n4na pra }rd rrnrlann:m-em.;;. nl•sann�eaal :nV 4+Hnnrn • Tivb�alrrJl Gates atr•IW6Tlay[Iha+nMW;UtBach altlu SnM Eviur•H1 Rtl Ctrl. AUFYry a'e nr(Inlpr.an vl+rite r _5urlw ccm.n•HiaB$1.1belt fit+acm w du fa WAal Fanllb tilr4t•t[tH^ • Lyarrtasr. rtsalacal0[na iM[O]. 1+>uabe:la® wi+Nv. � iawInert• (:w.�M 1 Y, :e.Jlll1)) rt1L: HiN✓1•asttet-t w -r 111] Malmy L-wrn :rucx 0)1r� Lw •wzmr U;tr• :pluton Ub lL'SL•]32] ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT 31 Schedule D: Baseline Energy Consumption See Section 3: Energy Cost Savings and Guarantees, and Section 5: Investment Grade Audit (IGA) in the Energy Services Proposal (ESP), dated February 17, 2023. - ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT 32 Schedule E: Savings Measurement & Calculation Formulae; Methodology to Adiust Baseline Not used. ESCO (McKinstry)/OWNEIUPERFORMANCE CONTRACT 33 Schedule F: Construction and Installation The final construction schedule is provided under separate cover. The Kittitas County Courthouse HVAC Upgrades duration is expected to be between February and December of 2023. ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT 34 Schedule G: Systems Start -Up and Commissioning Commissioning will be provided during the Interim Period by the ESCO for all new equipment and systems installed except for other measures that do not require commissioning. Commissioning services are detailed in the Section 2: Scope of Work in the ESP dated February 17, 2023. ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT 35 Schedule H: Standards of Comfort See Section 3.4 Standards of Comfort Services in the Energy Services Proposal (ESP) dated February 17, 2023 ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT 36 Schedule I: ESCO's Maintenance Responsibilities ESCO shall perform all maintenance on equipment installed in this project up to the date of Substantial Completion for a Group of Work as contemplated by Section 3.1 of this Contract. ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT 37 Schedule J: The Owner's Maintenance Responsibilities The Owner shall have no maintenance responsibilities on equipment installed in this contract prior to substantial completion for a Group of Work as contemplated by Section 3.1 of this Contract. After such date, it is the Owner's responsibility to provide all maintenance for all equipment and systems installed as part of this project as per manufacturer recommendations, which will be provided in project O&M manuals, as well as to maintain industry acceptable maintenance practices on all existing equipment that shall remain in operation following the completion of this project The Owner shall maintain the Direct Digital Controls systems such that the sequences (if operation end scheduling functions shall remain fully functional and performing the energy savings functions as originally designed. Modifications to the sequences of operation may trigger modifications to the estimated annual energy savings per Schedule 13-1 and Section 15 of this Contract. The required annual preventative maintenance is included as part of the manufacturer's warranty requirements as described in the O&M documents that will be delivered within 90 days of the Commencement Date. ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT 38 Schedule K: ESCO's Training Responsibilities ESCO will provide 8 hours of mechanical/controls systems training. This does not include additional training provided by subcontractors as it relates to their specific equipment and systems. Any post -acceptance training will be negotiated and reimbursed from either remaining available contingency or other sources outside this Contract. The Owner has the option to negotiate additional service support at their discretion. ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT 39 Schedule L: Pre -Existing Service Agreements Not used. ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT 40 Schedule M: Current and Known Capital Projects at the Premises It is the responsibility of the Owner to inform the ESCO of any capital of infrastructure improvement projects that may have an impact on the construction schedule or anticipated scope of work. ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT 41 Schedule N: Proiected Financial Performance See Section 4: Project Financials in the Energy Services Proposal (ESP) dated February 17, 2023. ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT 42 Exhibit 1: Sample Notice of Substantial Completion & Commencement of Energy Savings [Date] [Client] [Client Address] Attention: [Client Contact] Project: [Project Description] ESCO Contract No: Regarding: "'"Notice of Substantial Completion & Commencement of Energy Savings*" Dear: [Client Contact] Pursuant to the conditions of the Energy Services Agreement, McKinstry provides notification that the construction activities on the following facility improvement measures are substantially complete. The energy services have been provided and that equipment or services are providing energy savings. The following table provides the date of Substantial Completion and Commencement of Energy Savings with regards to the specific initiatives that were installed at your facilities. Tf for some reason you are not in agreement with the energy savings commencement date below, McKinstry requests written notification within fourteen (14) days of receipt of this notice. Facility Improvement Measure Facili Date All punch list items, and inspections have been completed, and all warranties have been turned in. Operation and Maintenance Manuals & Close Out Documents are in final production and a close out meeting will be scheduled shortly. Should you have any questions or require additional information, please contact me directly at [xxx-xxx- xxxx]. Sincerely, [McKinstry Representative] McKinstry Essention, LLC. cc: File ESCO (McKinstry)IOWNER/PERFORMANCE CONTRACT 43 Exhibit II: Operations and Maintenance Manuals To be provided under separate cover. ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT 44 Exhibit III: Equipment Warranties To be provided under separate cover. ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT 45 Exhibit IV: Close -Out Documents The following Sample Closeout Documents have been attached: • Notice of Punch List Completion • Permit and Inspection Records • Warranty Letter Template • Notice of Final Inspection • Notice of Owner Operator Training ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT 46 -Notice of Punchlist Completion < <Date> > «Ghent Name>> <<Address 1>> <<City, State zip>> Attention: Contact Nacre Project: Project Name ESCO Contract No: r, -'SCO Con:racr'J�mr�cr Regarding: **k Punchlist *Mk Dear Mr. o -Ms, Cnntact Last Ndmr: Sample Draft The punchiist is closed. Our Punchlist vraik on Vonth Day, Yed- revealed Items to be corrected and these were added to the punchiist. AV items were corrected and are compete as of;•lor:h Gay, Year, Should you have any questions or requ're additional information, please contact me directly at (XXX) xxx - xxxx. Sincerely, Construction Manager McKinstry cc: File ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT 47 Warranty Letter Template , <<Date>> Sample Draft <<Client Name >> «Address Y» «.City, State Zip>> Attention: Contact Narre Project: Project Nfame ESCO Contract No: ESCO Co itract N-irriber Regarding: `:* warranty *** Dear Mr. or his. Contact Last iiame: McKinstry Company 1V0X crr:ts WS installation on the above -referenced project for a period of one (1) year as follows: The McKInstry Company warranty is in accordance with the "Standard Mechanical Warranty" and 'General Conditions" contained herein. Should you need warranty assistance, please contact CarstrucLion Manager at (XXX) XXX - %XXX or our :,oczl Office at (Xxx) xxx - XXXX. If you have alter -hour emergency concerns, please contact McKlnstry's 24-hour InfoCentre desk at 1-888-828-5101 Your building systems require reqular maintenance to operate properly and efficiently plus protect your warranty. if you do rot have a trained individual who will Ceg r� lariy maintain your equipment, we suggest you contact a company specializing in maintenance and service. We trust you will find everything in order and please advise if you have any questions Sincerely, Ash Awad Vice President Energy & Facility Solutions cc: Construction Manager McKinstry ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT 48 Permit and In%peetion Records <<Date>> «Cilent Name >> «Address 2» <<City, state Zip>> Attentlon: Cont.art ."lame Project: Project Narnc ESCO Contract No: ESCO Contract Member Regarding: *** Permits and Inspection Records Dear ,qtr. or tis. Cor:tact Last Ramc: Sample Draft Please find enclosed :he Permits and inspection Records for this project. Should you have any questions or require additional information, please contact me directly at (XXX) XXX - XXXX. Sincerely, Construction Manager McKinstry CC: File ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT 49 Notice of Final lnspeclion <<Date>> <<Client Name >> r<Address i» «City, State Zip>> Attention: Contact Name Project: Project Narrc ESCO Contract No: [SCO Contract Numocr Regarding: **- Final Inspection *** Dear Xr. or Ms. Contact Last dame: Sampleft Final Inspections were conducted and are complete as of Month Day, Year. Should you have any questions or require additional information, please contact me directly at (XXX) XXX - XXXX. Sincerely, Construction Manager MtKinsty cc: File ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT 50 Notice of Owner Operator Training < <Date> > <<Client Name >> <<Address 1» <<City, State Zip>> Attention: Contact Name Project: Project Name F.SCO Contract No: 1 --SCO Cantr?Lt N-irrber Regarding: "'* Owner Operator Training *** Dear Mr. o. Ms. Contact Last t0n,a: Sample Draft Please rind enclosed the training notes as well as sign In sheet for the Owner Operator Training that took place on Month D6y, Year at Location. Should you have any ci iestions or require additional information, please contact me directly at(XXX ) Sincerely, Construction Manager McKinstry cc: file ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT 51 Exhibit V: Progress Payment Application Form Z.4-, l wiry sop t:ri. +.f Gor,ttlor ftKw t MCMEJ9" Request #-- Project :Project Name: Project Location: Contact: Contact Phone 0: ElIliing period: Details Morthly Progress Billing Proctress Payment F►oplica�ion [ Sampleyi�raft Pape: 1 of2 Invoke Date; 2116/2071 Invoice number. TBD cuslomei s, Pro NGL $: Amount ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT 52 APPENDICES Appendices A and B are not attached but are incorporated by reference. APPENDIX A: Energy Services Proposal (ESP), dated February 17, 2023 APPENDIX B: Investment Grade Audit Proposal (IGA) dated August 1, 2022 ESCO (McKinstry)/O WNER/PERFORMANCE CONTRACT 53 March 14, 2023 SO Alliance 25 N Wenatchee Ave, Suite 238 Wenatchee, WA 98801 RE: Phase 4 Kittitas County Solid Waste Programs and Facility Maintenance Department 925 Industrial Way, Ellensburg, WA 98926 Telephone: (509) 962-7542 At this time Kittitas County would like to accept the proposal for phases 4 for the on-call services contract per Exhibit A, Scope of Work dated February 17, 2023 for the Upper District Cout House. Description: Phase 1-3 Phase 4 Upper County Court House Parking Lot Not to exceed Please sign and return. Approval Kittitas Coyfity Board of Commissioners BY: �/ :(�. Name:�i TITLE: xa( DATE: t � $131,590.00 $ 18,644.50 $150,234.50 SCJ Alliance BY: Name: Dan Ireland TITLE: Principal DATE: 3/17/23 SCJ ALLIANCE CONSULTING SERVICES Exhibit A Scope of Work Kittitas County Solid Waste/Facility On -Call Services Amendment 1 — Upper Court House Construction Documents Kittitas County, WA Prepared For: Patti Stacey, Director Prepared By: Dan Ireland, PE Date Prepared: February 17, 2023 Introduction: It is our pleasure to provide the following scope of work for engineering services to develop a publicly bid package for improvements at the Upper County Courthouse Parking Lot. The scope of improvements is shown in the graphic. Phase 4 Upper County Court Mouse Parking Lot Task 7 Preliminary Construction Documents Our approach to this maintenance project is to keep it simple. SCJ will develop this construction plan set with Bluebeam software due to the nature of the improvements that do not require a topographic survey. To complete the preliminary construction documents, we will develop the following: 0 1) Utility locates: SCJ will order utility locates for the - ............... .......... property to evaluate a location for the flag pole - — and potential water line locations. We will then visit the site and measure the location of the existing utilities for our project basemap. 2) Preliminary Plan Set a) Cover Sheet with Summary of Quantities (1 sheet) b) Existing Conditions and Removal (1 sheet) c) Site Layout (1 sheet) d) Site Details (2 sheets) 3) Special Provisions and Bid Documents: SCJ will develop construction specifications based on WSDOT and APWA standards. In addition, we will update the front-end documents for the subject project that includes the following: (1) Bid Advertisement SCJ ALLIANCE CONSUL; ING SERVICCS (2) Instruction to Bidders (3) Bid Proposal Form (4) Signature page (5) Non -Collusion declaration (6) Contract Form (County Provided) (7) Payment and Performance Bond Kittitas County Solid Waste/ Facilities On -Call February 17, 2023 Page 2 of 3 4) Project Estimate: We will quantify the improvements on the project. This information will then be used for a project estimate and Bid Proposal form. 5) Project Review: We will submit the preliminary package for County staff review and facilitate a Task 2 Permitting 1) City Coordination/Permitting: SCJ will review the scope of the improvements and request as - built information for the existing water lines on the property. SCJ has budgeted 4 hours for coordination, tracking, and status of the permit applications with the various agencies. Per City requirements, SCJ will fill out and submit permit applications for the following items of work: o Flagpole Permit o ADA Ramp Replacement Task 3 Final Construction Package 1) Final Plans: SCl will finalize the construction plans for the bid advertisement by incorporating the review comments. 2) Update Quantities / Cost Estimation: We will update the quantities and final engineers' estimates. This will be used for budgeting confirmation and comparison at bid opening. 3) Final Special Provisions: Final revisions and modifications to the special provisions and front- end bid documents. Task 4 Public Bid /Award/ &ecution 1) Bid Advertisement: SCJ will post in an online format the project to a 2) Respond to Bidders: We have estimated 4 hours of our time to respond to bidders' questions and clarifications. 3) Addendum: We have estimated 4 hours for creating and publishing an addendum if it is necessary. 4) Bid Opening: SCJ will assist the County with the formal opening and announcement of the bid opening. SCJ will then create a bid tabulation to compare bid totals and unit costs. We review the bid proposal to make sure they are complete and meet the bidding criteria. 5) Bid Award: SCJ will develop a Recommendation of Award to the County to provide to their board for determination to award the contract to the bidder. 25 N Wenatchee Ave, Suite 238 < Wenatchee, WA 98801 • Office 509.886.3265 • Fax 360.352.1509 o scjalliance.com <]QC� GJ Kittitas County Solid Waste/ Facilities On -Call SCJ ALLIANCE February 17, 2023 CON5VLTING SERVICES Page of 6) Contract Execution: SCI can assist with the coordination of the construction contract documents and the Notice To Proceed notification to the Contractor. Understanding/Assumptions 1) Permitting fees are required by agencies and will be paid by the County directly. 2) We do not anticipate or estimate topographic surveys, cultural resources, biological assessments, or geotechnical services. If the project later identifies this need, we can add as an amendment. 3) Construction Services for this project will be assessed at the time of bid award. The scope of those services will be added via addendum once they have been quantified. 4) Stormwater design is not required. 5) This estimate assumes one public bid and award process. Deliverables 1) Preliminary Contract Plans. 1) Preliminary Cost Estimate. 2) City/County Plan submittal package. 3) Contract Plans. 4) Special Provisions. 5) Project Manual (PS&E). 6) City Permits (2). 7) Bid Tabulation. 8) Bid Award Notification. 9) Addendum (if necessary). 10) Notice of Contract Execution. CONTRACT SUMMARY (not to be exceeded without prior authorization) 1_� i7T' $9,850 T&M $1,465 T&M $3,490 T&M $3,755 T&M $18,560 T&M 25 N Wenatchee Ave, Suite 238 0 Wenatchee, WA 98801 > Office 509.886.3265 o Fax 360.352.1509 0 scjalliance.com Consultant Ubor Hour Estimate SO Alnanca SCJ ALLIANCE Olmt Fl wr mend Name Trm?IaL vcYx 4/a/mII ce.a.�....sr+.c,+ rrelGx 20220n89EnjlnGer C ^aa Tyr. Br.Mr wtrsduault reb r, Emr P.J—Numb4r ftlaNm: taEa411man�lvn PHASE4 Upper County Courthouse Parking lot Improvements Tatki Pmf[,Jnary CoNtructlon Docu—U 1 UtiUry Ludes and site Wit TWO Direct Phase& ��&Task 17tle Prindpal savor ©Fnglnear Senlar t3 Pmlea PC2 Protea laborllcurs8 TotalfOSL Task Na 3 EnSl— Panner tend— Acmumam Coordinator fast PHASE4 Upper County Courthouse Parking lot Improvements Tatki Pmf[,Jnary CoNtructlon Docu—U 1 UtiUry Ludes and site Wit 5.0 5.0 $ 625.00 2 Sheetsetup 1.0 Lo $ 115.00 3 Cove Sheet LO Lo $ 125.00 4 hltang CondW—ard Re—I 1a 2.0 3-0 $ 465.00 5 Site layout 10 4A 9.0 _— 5 1,215.00 6 Sita Details 12.0 — 120 5 1,500.00 7 FumishMS Research 4.0 4.0 5 500.00 6 Spe"Pro wont 2.0 16.0 180 5 243000 9 6d Documents 211 40 I 60 5 93x00 30 Cl ntntlofCost Esdnatlon 111 4.0 SO 5 715.00 11 Protect Redrw Meeting 20 2.0 4.0 5 690.10 lZ M—w—t setup cdn.wal 2.0 w..� 11n 5911 1.03.0 10 71.0 5 5 54D.00 9.650D0 3 sr S �% S/toa Consultant labor Hour Estlmatc SCI Alnante Pennirunj menk EMer Ck. Name hgea: 2022 DnL aEnClnear 1rD s: Enter Project Number Ne Nvnr. t�4ria+nalun umWuva,a,�: ga/14u t'antraa Type: N:vn{Rav WuOaY SC.1 ALLIANCE Task Pennirunj 1 Cay Request LO 1.0 $ 215.00 2 P—dt RppP.Uon and Submetal Total D6cct Phase& Ph— &Task 71tic Pdndpal 1,000.00 E3 E`rk' r xnlor t3 Protect PC2Paolatt la6orHpursB Total Cart Task Ha 4 EnElnav mIn Planner land sape 4acaunn.rt Coordlnatw Cost Task Pennirunj 1 Cay Request LO 1.0 $ 215.00 2 P—dt RppP.Uon and Submetal &D 8.0 $ 1,000.00 3 Follow Up 2.0 20 $ 250.OD 4 $ 5ubtotal Hwn: LO 10.0 3,465,00 Task 3 Final Oal2n 1 Final Plan Ftevuiom 2.0 1Z0 14D $ 1,810.00 2 Update QuanUUesJErtlmam ID a.0 5.0 $ 715.00 3 Final Spedah and Bid Doaanent updates LO 6.0 7.0 $ 965.00 $ Subtotal K-1 2D I 2-0 220 I I I 16.0 $ 3,490110 las 1nlnov Consultant labor Hour Estinwte SO Alliance Okne E -meta Name -1- 20220 -Call Enpneer lobe Enter PnfM Number ru. x.n.: tabor tn!�wah� T-ata - vv1A1: Cmoaa Trye &'aria aatald�e4ula o SCJ ALLIANCE Ta.k7 Public Bid /award/Ea-alon 1 Bid Adverdsement LO 20 3.0 5 Total Di" Phase& phase&Task TlUe Task No. Pdntlpal �^ En¢Inev E3 ElrQnt<r Senior Planner L3 land- Prolea Aemunta�rt PC2 PrvJeR eoorditiw labor Hours& Total Cost Cast Ta.k7 Public Bid /award/Ea-alon 1 Bid Adverdsement LO 20 3.0 5 465.00 2 Response la Blddcrs 4.0 4.0 $ 500110 3 Addendum 1.0 4.0 5.0 $ MA0 4 Bid Openiry 4.0 4.0 8.0 $ 1.360A0 5 Bid Award 20 7.0 $ ZOM 6 C.- E. -tion 1.0 2.0 3.0 $ 465.00 Subtotal Noun: 7.0 38.0 I 25.0 $ 3,755.00 TobiPhase Hours: 210 2.0 109.0 Lo 133.0 $ 1330 Tota] Phase Duca labor. $4,515.00 1 $310.00 $23,625.00 $110.00 $18'smoo $ 18,S60.00 T4Ul Hours AB Ph..210 2.0 109.0 I ]A 133.0 133.0 Total Di- labor Evimam AB Phases $4,515.00 1 $310.00 1 $13,62500 I I 5110A0 I 518,56000 $ 1$560.00 Consultant Fee Determination Summary SCJ Alliance Client: Enter Client Name Project: 2022 On -Call Engineer Job H: Enter Project Number File Name: labor Estlmate.xlsm Consultant Fee Determination DIRECTSALARY COST Classification Principal Senior Engineer E3 Engineer Senlor Planner L3 Landscape Project Accountant PC 2 Project Coordinator TOTAL SALARY COST SUBCONSULTANTS REIMBURSABLE EXPENSES SCJ ALLIANCE Template Venlon: 4/4/2022 Contract Type: 0lIMg Rate Schedule Hours Fully Burdened Rate Amount 21.0 $215.00 54,515.00 2.0 $155.00 $310.00 109.0 $125.00 $13,625.00 0.0 $160.00 $0.00 0.0 $121.00 $0.00 1.0 $110.00 $110.00 0.0 $115.00 $0.00 Subconsultant Fee Subtotal: $0 Subconsultant Markup: 0% Total Salary Cost $38,560.00 $0.00 $0.00 Copies, Printing, etc 0.0% of the Total Salary Costs $0.00 Mileage 130 miles at $0.650 per mile $64.50 Expenses Subtotal: $84.50 Expenses Markup: 0% $0.00 SUBTOTAL (SALARY, SUBCONSULTANTS AND EXPENSES) Subtotal (Salary, Subconsultants and Expenses) $18,644.50 MANAGEMENT RESERVE FUND (MRF) Management Reserve: $0.00 Total Estimated Budget: $18,644.50 2a2rz023 page5