Arkansas Administrative Code › Agency 168 - Arkansas Economic Development Commission › Rule 168.00.14-002 - Arkansas Energy Performance Contracting Program

Current through Register Vol. 49, No. 6, June, 2024
ENERGY PERFORMANCE CONTRACT
This Energy Performance Contract (the "Contract") is made and
			 entered into as of this [Day of Month day of Month, Year], by and between
			 [Formal Name of Agency such as "City of.","County of.",, etc.], (" Agency") and
			 [Contractor name ]("Contractor"), [Contractor Address], a [State of Contractor
			 Headquarters] corporation doing business in Arkansas (the "State").
Editing Note: Search and replace on "Agency" to change to
			 abbreviated Agency name.
WITNESSETH:
WHEREAS,
Agency is authorized to enter into this
			 Contract as provided for in A.C.A. § 19-11-120 for the purpose of the sale
			 and installation of certain energy and water saving equipment, and provision of
			 other services designed to save energy and reduce related costs as per the
			 guarantee described herein for certain property and buildings owned by the
			 Agency; and
WHEREAS,
authority exists in the Arkansas law and
			 sufficient funds have been budgeted, appropriated and otherwise made available
			 and a sufficient unencumbered balance thereof remains available for encumbering
			 and subsequent payment of this Contract; and
WHEREAS,
Agency has been authorized to enter into a
			 lease-purchase agreement for all professional services,
			 construction/improvements, Project contingencies, reimbursable expenses and
			 miscellaneous expenses for the purchase and installation of energy and water
			 conservation measures, collectively referred to as the Work(as herein after
			 defined); and
WHEREAS,
required approval, clearance, and
			 coordination has been accomplished from and with appropriate agencies;
			 and
WHEREAS,
Contractor has developed or become
			 knowledgeable about certain procedures for controlling energy and water
			 consumption through services provided and equipment installed and maintained at
			 facilities similar in scope and scale of Agency; and
WHEREAS,
Contractor was selected after a
			 determination that it was the most advantageous to Agency for the Project
			 pursuant to Agency's selection process; and
WHEREAS,
Contractor has made an assessment of the
			 utility consumption characteristics of facilities, which was delivered to
			 Agency as an Investment Grade Audit which Agency has approved and elected to
			 implement the ECM set forth in Schedule A.
WHEREAS,
Agency owns and operates the Premises (as
			 hereinafter defined); and
WHEREAS,
Agency desires to retain Contractor to sell
			 to it, install and service certain energy efficiency equipment of the type or
			 class described herein and to provide other services for the purpose of
			 achieving utility cost reductions within Premises; and
WHEREAS,
Contractor has selected the Equipment (as
			 hereinafter defined) on the basis of competitive quality, compliance with
			 Contractor's specifications, and price; and
WHEREAS,
Agency may utilize maintenance and
			 operations appropriations for the payment and energy cost savings measures
			 required to enter into a guaranteed energy cost savings contract as stated in
			 A.C.A. § 19-11-1208; and
WHEREAS,
AEO may establish and collect a reasonable
			 fee to cover the costs of administering the AEPC Program (Arkansas Code
			 19-11-1207.2),
NOW, THEREFORE,
in consideration of the mutual
			 promises and covenants contained herein, and intending to be legally bound
			 hereby, Agency and Contractor hereto covenant and agree as follows:.
ARTICLE 1:
DEFINITIONS, SCHEDULES,
		  EXHIBITS AND APPENDICES
Section 1.1.
Definitions.
Certificate of Acceptance:
The certificate substantially in the form provided in
Exhibit III(i) - Notice of Acceptance.
Contract:
This Energy Performance Contract and all Schedules, Exhibits, and
			 Appendices attached hereto.
Contract Sum:
The sum of all materials, labor, auditing, design, engineering,
			 Project construction management fees, overhead, profit, contingency, outside
			 services, and bidding and construction contingencies related to the
			 Project.
Savings:
Energy cost savings and operation and maintenance cost savings as
			 allowed by A.C.A. § 19-11-1208 The Guaranteed Energy Cost Savings Act as
			 revised by Act 554 dated 7/15/2013.The savings as provided in
Schedule
			 C
and in accordance with the Savings Calculation Formula set forth in
Schedule E.
Equipment:
The goods enumerated on
Schedule A
that is now or
			 hereafter from time to time become attached hereto and incorporated herein by
			 reference, together and with any and all additions, modifications, attachments,
			 replacements and parts thereof.
Event of Default:
Those events described in
Section 17.1
and
Section 17.2
hereof.
Guarantee:
The savings achieved as a result of the installation and
			 operation of the Equipment and provision of services provided for in this
			 Contract as specified in
Schedule D
and in accordance with the
			 Savings Calculation Formula as set forth in
Schedule E
.
Interim Period:
The period from contract execution until the Performance
			 Commencement Date.
Maximum Contract Price:
The maximum amount of total allowable costs under this Contract,
			 as set forth in
Section 2.1,
which shall be the total amount paid
			 by the Agency, or Third-Party Lessor on behalf of the Agency, to
			 Contractor.
Measurement and Verification (M&V):
The standards and definitions in the most current version if the
			 International Performance Measurement and Verification Protocol (IPMVP) or if
			 not applicable to a specific measure, the latest version of measurement and
			 verification process of the Federal Energy Management Program (FEMP).
M&V Services:
Services relating to the measurement and verification by
			 Contractor of the efficiency and effectiveness of the Project, pursuant to this
			 Contract and the most current IPMVP or FEMP. document.
M&V Fee:
The annual fee according to
Schedule D
for M&V
			 Services.
AEO Administration Fee:
The fee paid to AEO for administration of the AEPC Program, as
			 authorized per Act 554, according to