CONTRACT BETWEEN THE WYOMING BUSINESS COUNCIL,
COMMUNITY DEVELOPMENT DIVISION, STATE ENERGY OFFICE
AND
(ESCO Name)
1. Parties. The parties to this Contract are the Wyoming Business Council, Community Development Division, State Energy Office, an agency of the State of Wyoming (Council), whose address is 214 West 15th Street, Cheyenne, WY 82002; and (ESCo Name) (Contractor), whose address is (ESCo Address).
2. Purpose of Contract.
WHEREAS: The Council, through its Wyoming Energy Conservation Improvement Program (WYECIP), uses a state-approved Request for Proposal (RFP) process to select Energy Service Companies (ESCos) to provide as-needed energy performance contracting services; and
WHEREAS: The Council will maintain a list of pre-qualified ESCos that are eligible for final selection by the WYECIP participants to provide performance contracting services.
NOW, THEREFORE, the parties agree that the purpose of this Contract is to provide Contractor the ability to participate in the WYECIP program for development and implementation of Energy Performance Contracting (EPC) projects, to ensure the program’s standard processes, procedures, and documentation will be used and to obligate Contractor to follow and adhere to the guidelines, rules, and provisions of WYECIP.
3. Term of Contract. This Contract shall be for an initial two-year term and shall commence on July 1, 2017 and shall terminate on June 30, 2019, unless otherwise amended or terminated in accordance with the terms and conditions specifically provided herein. All services shall be completed during this term.
Following the initial two-year term, this Contract may be extended by mutual agreement of the Council and Contractor to a maximum of an additional two-year renewal. There is no right or expectation of renewal and any renewal will be determined upon the mutual agreement of the Parties.
By law, contracts or agreements for professional or other services must be approved as to form by the Attorney General, Wyo. State. 9-1-403(b)(v).
4. Consideration. In consideration for entering into this Contract, Contractor shall be eligible for participation in WYECIP and the Council’s energy conservation efforts shall be promoted.
5. Responsibilities of Contractor. The responsibilities of the Contractor shall include, but are not necessarily limited to:
A. Promote WYECIP when marketing directly to an eligible Agency (Agency);
B. Engage the Council when a potential energy performance contract project is identified;
C. Direct the Agency to contact the Council to execute a WYECIP Agreement with Council;
D. Assign members to the Contractor project team including project development, engineering, project management, measurement and verification specialists, and upper management personnel;
E. Ensure appropriate Contractor personnel attend project development meetings dependent upon the subject matter to be discussed;
F. Prepare and execute contracts with the Agency substantially in the form of the most current version of the WYECIP Standard Contract documents to the extent mutually agreed by all concerned;
G. Perform and complete the Investment Grade Audit, and other project development activities in accordance with the WYECIP Standard Investment Grade Audit and Project Development Contract incorporated herein by reference;
H. Work with the Agency and the Council to develop/refine project parameters;
I. Provide project proposals, designs, and reports;
J. Ensure recommendations of the Council during reviews are addressed;
K. Assist the Agency with arrangements for project financing;
L. Provide construction project management;
M. Perform measurement and verification activities as mutually agreed by all concerned;
N. Assist the Agency with preparing annual reports for the Council on project cost, status, savings achieved, and square footage impacted by the project.
6. Responsibilities of Council. The responsibilities for the Council include, but are not necessarily limited to:
A. Help eligible Agencies identify potential EPC projects;
B. Execute an Agency Agreement with Agencies electing to utilize WYECIP for project development and implementation support;
C. Require Agencies using WYECIP support to use an ESCo that has been pre-qualified by WYECIP and has executed this WYECIP ESCo Contract with the Council;
D. Provide the WYECIP Standard Contract documents;
E. Review audits, proposals, calculations, contracts, and reports;
F. Assist with oversight of project development;
G. Provide monitoring of the project implementation;
H. Review measurement and verification of savings.
7. Special Provisions.
A. Adherence to WYECIP Requirements. Contractor shall engage in a good faith effort to promote WYECIP, to the extent such effort is not inconsistent with or in violation of any and all Federal or state laws, rules or regulations (including Federal securities laws), applicable to Contractor, and shall adhere to its guidelines, requirements, and provisions.
B. Compliance Requirements. Contractor’s performance will be continually monitored and evaluated by the Council for compliance with WYECIP guidelines, requirements, process, and documentation. Contractor shall practice and uphold the highest levels of ethical and industry standards in all matters under this program. Should Contractor be deemed non-compliant during any time while this contract is in effect, the Council will notify Contractor in writing and the Council and Contractor will discuss issues deemed non-compliant. The Council will offer the Contractor the opportunity to take corrective measures, which shall be provided to the Council in writing by the Contractor. Contractor will at that time enter a defined probationary period during which, if Contractor again becomes non-compliant, will be terminated from the WYECIP program for cause as provided in Section 8 of this Contract without regard to any time remaining in the Contractor’s contract term.
C. Contractor Requirements. Contractor shall, before commencing performance of this Contract, become licensed or otherwise permitted to do business in the State of Wyoming and shall provide proof and documentation of all required insurance and bonds pursuant to this Contract.
D. Cost and Pricing Elements. Contractor agrees that, for each Project, it will not exceed the maximum cost for performing an Investment Grade Audit and maximum project Cost and Pricing Elements for pre-defined categories illustrated in the tables and the Open Book Pricing requirement included in Exhibit 1, which will be attached and made a part of each Investment Grade Audit and Energy Performance Contract. The Contract Sum will be subject to adjustment as set forth in Section 2.7.3 of the Energy Performance Contract for each project.
E. Eligible Agencies. Agencies eligible for participation in WYECIP consist of State Agencies, County & Municipal Governments, Higher Education Facilities, Public School Districts, Hospitals, and Non-Profit entities that have executed a WYECIP Agency Agreement with the Council.
F. Local Subcontractors. Contractor shall survey and solicit qualified locally available subcontractors for consideration for performing work under this Contract.
G. Standard Contract Documents. Contractor agrees to use and adhere substantially in form to the WYECIP Standard Investment Grade Audit and Project Development Contract and the WYECIP Standard Energy Performance Contract, Attachments B and C, which are attached and made a part of this Contract to the extent the same are mutually agreeable.
8. General Provisions.
A. Amendments. Any changes, modifications, revisions or amendments to this Contract which are mutually agreed upon by the parties to this Contract shall be incorporated by written instrument, executed and signed by all parties to this Contract.
B. Applicable Law/Venue. The construction, interpretation and enforcement of this Contract shall be governed by the laws of the State of Wyoming. The Courts of the State of Wyoming shall have jurisdiction over this Contract and the parties, and the venue shall be the First Judicial District, Laramie County, Wyoming.
C. Assignment/Contract Not Used as Collateral. Neither party shall assign or otherwise transfer any of the rights or delegate any of the duties set forth in this Contract without the prior written consent of the other party. The Contractor shall not use this Contract, or any portion thereof for collateral for any financial obligation without the prior written permission of the Council.
D. Audit/Access to Records. The Council and its representatives shall have access to any books, documents, papers, electronic data and records of the Contractor which are pertinent to this Contract.
E. Award of Related Contracts. The Council may award supplemental or successor contracts for work related to this Contract. The Contractor shall cooperate fully with other contractors and the Council in all such cases.
F. Certificate of Good Standing. Contractor shall provide to Council a Certificate of Good Standing verifying compliance with the unemployment insurance and workers' compensation programs before and during performing work under this Contract, if applicable.
G. Compliance with Laws. The Contractor shall keep informed of and comply with all applicable federal, state, and local laws and regulations in the performance of this Contract.
H. Confidentiality of Information. All documents, data compilations, reports, computer programs, photographs, data and any other work provided to or produced by the Contractor in the performance of this Contract shall be kept confidential by the Contractor unless written permission is granted by the Council for its release. If and when Contractor receives a request for information subject to this Contract, Contractor shall notify Council within ten (10) days of such request and not release such information to a third party unless directed to do so by the Council.
I. Entirety of Agreement. This Contract, consisting of nine (9) pages, Exhibit 1, Cost and Pricing, consisting of three (3) pages, Attachment B, consisting of fifty-five (55) pages, and Attachment C, consisting of eighty-eight (88) pages represents the entire and integrated Contract between the parties and supersedes all prior negotiations, representations, and agreements, whether written or oral.
J. Ethics. Contractor shall keep informed of and comply with the Wyoming Ethics and Disclosure Act (Wyo. Stat. § 9‑13‑101, et seq.), and any and all ethical standards governing Contractor’s profession.
K. Extensions/Renewals. Nothing in this Contract shall be interpreted or deemed to create an expectation that this Contract will be extended beyond the term described herein. Any extension of this Contract shall be initiated by the Council and shall be accomplished through a written amendment between the parties entered into before the expiration of the original Contract or any valid amendment thereto, and shall be effective only after it is reduced to writing and executed by all parties to the Contract.
L. Force Majeure. Neither party shall be liable for failure to perform under this Contract if such failure to perform arises out of causes beyond the control and without the fault or negligence of the nonperforming party. Such causes may include, but are not limited to, acts of God or the public enemy, fires, floods, epidemics, quarantine restrictions, freight embargoes, and unusually severe weather. This provision shall become effective only if the party failing to perform immediately notifies the other party of the extent and nature of the problem, limits delay in performance to that required by the event, and takes all reasonable steps to minimize delays. This provision shall not be effective unless the failure to perform is beyond the control and without the fault or negligence of the nonperforming party.
M. Indemnification. The Contractor shall release, indemnify and hold harmless the State, the Council, and their officers, agents, employees, successors, and assignees from any and all claims, lawsuits, losses, and liability arising out of Contractor’s failure to perform any of Contractor’s duties and obligations hereunder or in connection with the negligent performance of Contractor’s duties or obligations, including but not limited to any claims, lawsuits, losses, or liability arising out of Contractor’s malpractice or malfeasance.
N. Independent Contractor. The Contractor shall function as an independent contractor for the purposes of this Contract and shall not be considered an employee of the State of Wyoming for any purpose. Consistent with the express terms of this Contract, the Contractor shall be free from control or direction over the details of the performance of services under this Contract. The Contractor shall assume sole responsibility for any debts or liabilities that may be incurred by the Contractor in fulfilling the terms of this Contract and shall be solely responsible for the payment of all federal, state and local taxes which may accrue because of this Contract. Nothing in this Contract shall be interpreted as authorizing the Contractor or its agents and/or employees to act as an agent or representative for or on behalf of the State of Wyoming or the Council, or to incur any obligation of any kind on the behalf of the State of Wyoming or the Council. The Contractor agrees that no health/hospitalization benefits, workers' compensation, unemployment insurance and/or similar benefits available to State of Wyoming employees will inure to the benefit of the Contractor or the Contractor's agents and/or employees as a result of this Contract.
O. Monitoring Activities. The Council, or any of their duly authorized representatives, shall have the right to monitor all activities related to this Contract that are performed by Contractor or its subgrantees/subcontractors. This shall include, but not be limited to, the right to make site inspections at any time and with reasonable notice; to bring experts and consultants on site to examine or evaluate completed work or work in progress; to examine the books, ledgers, documents, papers, and records pertinent to this Contract; and, to observe personnel in every phase of performance of the related work.
P. No Finder's Fees. No finder's fee, employment agency fee, or other such fee related to the procurement of this Contract shall be paid by either party.
Q. Nondiscrimination. The Contractor shall comply with the Civil Rights Act of 1964, the Wyoming Fair Employment Practices Act (Wyo. Stat. §27-9-105 et seq.), the Americans with Disabilities Act (ADA), 42 U.S.C. §12101, et seq., and the Age Discrimination Act of 1975 and/or any properly promulgated rules and regulations thereto and shall not discriminate against any individual on the grounds of age, sex, color, race, religion, national origin, or disability in connection with the performance under this Contract.
R. Notices. All notices arising out of, or from, the provisions of this Contract shall be in writing either by regular mail, e-mail, or delivery in person at the address(es) provided under this Contract. Notice provided by mail shall be delivered as follows:
Council: Sherry K. Hughes,
Contractor: Contractors Name, email address and Phone Number
S. Notice and Approval of Proposed Sale or Transfer. The Contractor shall provide the Council with the earliest possible advance notice of any proposed sale or transfer or any proposed merger or consolidation of the assets of the Contractor. Such notice shall be provided in accordance with the notices provision of the Contract. If the Council determines that the proposed merger, consolidation, sale or transfer of assets is not consistent with the continued satisfactory performance of the Contractor’s obligations under this Contract, then the Council may, at its option, terminate or renegotiate the Contract.