Loading...
2.6a ERMU 12-12-2023 STANDARD AGREEMENT FOR PROFESSIONAL SERVICES Agreement for Services THIS PROFESSIONAL SERVICESAGREEMENT(“Agreement”) is made this th 27 day of November, 2023, by and between ELK RIVER MUNICIPAL UTILITIES (“Utilities”) and FRONTIER ENERGY, INC., aCalifornia corporation (“Consultant”). Utilities and Consultant, in consideration of the mutual covenants set forth herein, agree as follows: 1. Services of Consultant. Consultant shall perform energy savings calculations and assist in the management of Utilities’ commercial and residential energy conservation programs based upon Consultant’s Scope of Work as detailed in Exhibit A (the “Services”). Consultant shall exercise the same degree of care, skill, and diligence in the performance of the Services as is ordinarily possessed and exercised by a professional Consultant under similar circumstances. No other warranty, expressed or implied, is included in this Agreement or in any drawing, specification, report, or opinion produced pursuant to this Agreement. The Services will include energy savings calculations, identification of rebate opportunities for custom commercial and industrial energy efficiency projects, assistance in the management of Utilities’ commercial and residential energy conservation programs, and facilitation of communications between Utilities and its customers. Consultant is an independent provider of professional services, responsible for means and methods used in performing Consultant’s services pursuant to this Agreement. 2.Effective Date and Term. 2.1 This Agreement shall be effective upon execution by Utilities and Consultant, and the term of this Agreement shall continue through December 31, 2026. 2.2 Utilities may terminate this Agreement at any time by giving sixty (60) days written notice to Consultant (the “Termination Notice”). The Parties’ obligations hereunder shall terminate on the date that is sixty (60) days after the date of the Termination Notice (the “Termination Date”). Upon any such termination, Consultant shall be entitled to receive, and Utilities shall be obligated to pay, all fees for services rendered by that date. 2.3 Consultant may terminate this Agreement at any time by giving thirty (30) days written notice to Utilities(the “Termination Notice”). The Parties’ obligations hereunder shall terminate on the date that is thirty (30) days after the date of the Termination Notice (the 228829v1 Elk River Municipal Utilities Standard Agreement for Professional Services “Termination Date”). Upon any such termination, Consultant shall be entitled to receive, and Utilities shall be obligated to pay, all fees for services rendered by that date. 3. Payments to Consultant. 3.1 Fee Schedule for Services and Expenses of Consultant. The Fees for Professional Services shall be as specified in Exhibit Aand shall comprise a one-time set up fee of $15,000 and $10,000 per month + $0.0187 per kWh delivered for Utilities’ 2024 savings goal of 3,200,000 kWh. 3.2 Times of Payments. Consultant shall submit monthly statements for Professional Services rendered and for Reimbursable Expenses incurred. The statements will be based upon Consultant’s estimate of the proportion of the total services actually completed at the time of billing. Utilities shall make prompt monthly payments in response to Consultant’s monthly statements. Consultant shall comply with Minnesota Statutes § 471.425. Consultant must pay Subcontractor for all undisputed services provided by Subcontractor within ten days of Consultant’s receipt of payment from Utilities. Consultant must pay interest of 1.5 percent per month or any part of a month to Subcontractor on any undisputed amount not paid on time to Subcontractor. The minimum monthly interest penalty payment for an unpaid balance of $100 or more is $10. 3.3 Financial Records and Audits. Records pertinent to Consultant’s compensation under this Agreement will be kept in accordance with generally accepted accounting principles. Copies will be made available to Utilitiesat cost on request prior to final payment for Consultant’s services, and shall be subject to inspection and audit by Utilities or state audit officials. Consultant shall provide Utilities access to any books, documents, papers, and records which are directly pertinent to the specific contract, for the purpose of making audit, examination, excerpts, and transcriptions, for three years after final payments and all other pending matters related to this contract are closed. 4. Ownership of Documents. All documents including Plans and Specifications prepared or furnished by Consultant (and Consultant’s independent professional associates and consultants) pursuant to this Agreement are instruments of service and Utilitieswill be provided with original record drawing copies; however, such documents are not intended or represented to be suitable for reuse by Utilities or others on extensions of any other project. Where the documents exist in electronic format, they shall be provided to Utilities in that format, or converted to a format determined by Utilities. Any reuse without written verification or adaptation by Consultant for the specific purpose intended will be at Utilities’ sole risk. 5. Minnesota Government Data Practices Act. Consultant must comply with the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13, as it applies to (1) all data provided by Utilitiespursuant to this Agreement, and (2) all data, created, collected, received, stored, used, maintained, or disseminated by Consultant pursuant to this Agreement. Consultant is subject to all the provisions of the Minnesota Government Data Practices Act, including but not limited to the civil remedies of Minnesota Statutes § 13.08, as if it were a government entity. In the event Consultant receives a request to release data, Consultant must immediately notify 228829v1 Elk River Municipal Utilities Standard Agreement for Professional Services Utilities. Prior to the release of any requested data, Utilities will give Consultant instructions concerning the release of such data. Consultant agrees to defend, indemnify, and hold Utilities, its officials, officers, agents, employees, and volunteers harmless from any claims resulting from any unlawful disclosure and/or use of protected data by Consultant’s officers, agents, partners, employees, volunteers, assignees, or subcontractors. The terms of this Section shall survive the cancellation or termination of this Agreement. 6. Insurance. 6.1.General Liability. Prior to starting the Work, Consultant shall procure, maintain and pay for such insurance as will protect against claims for bodily injury or death, or for damage to property, including loss of use, which may arise out of operations by Consultant or by any subcontractor or by anyone employed by any of them or by anyone for whose acts any of them may be liable. Such insurance shall include, but not be limited to, minimum coverages and limits of liability specified in this Paragraph, or required by law. The policy(ies) shall name Utilities as an additional insured for the services provided under this Agreement and shall provide that Consultant’s coverage shall be primary and noncontributory in the event of a loss. 6.2.Consultant shall procure and maintain the following minimum insurance coverages and limits of liability on this Project: Workers Compensation Statutory Limits Employer’s Liability $500,000 each accident $500,000 disease policy limit $500,000 disease each employee Comprehensive General Liability $1,000,000 property damage and bodily injury per occurrence $2,000,000 general aggregate $2,000,000 Products – Complete Operations Aggregate $100,000 fire legal liability each occurrence $5,000 medical expense Comprehensive Automobile Liability $1,000,000 combined single limit each accident (shall include coverage for all owned, hired and non-owned vehicles. 228829v1 Elk River Municipal UtilitiesStandard Agreement for Professional Services Umbrella or Excess Liability $1,000,000 6.3.The Comprehensive General/Commercial General Liability policy(ies) shall be equivalent in coverage to ISO form CG 0001, and shall include the following: 6.3.1. Premises and Operations coverage with no explosions, collapse, or underground damage exclusion (XCU). 6.3.2. Products and Completed Operations coverage. Consultant agrees to maintain this coverage for a minimum of two (2) years following completion of its work. Said coverage shall apply to bodily injury and property damage arising out of the products-completed operations hazard. 6.3.3. Personal injury with Employment Exclusion (if any) deleted. 6.3.4. Broad Form CG 0001 0196 Contractual Liability coverage, or its equivalent. 6.3.5. Broad Form Property Damage coverage, including completed operations, or its equivalent. 6.3.6. Additional Insured Endorsement(s), naming “Elk River Municipal Utilities” as an Additional Insured, on ISO form CG 20 10 07 04 or such other endorsement form as is approved by the Utilities. 6.3.7. If the Work to be performed is on an attached community, there shall be no exclusion for attached or condominium projects. 6.3.8. “Stop gap” coverage for work in those states where Workers’ Compensation Insurance is provided through a state fund if Employer’s liability coverage is not available. 6.3.9. Severability of Insureds provision. 6.4. Professional Liability Insurance. Consultant agrees to provide to Utilities a certificate evidencing that Consultant has in effect, with an insurance company in good standing and authorized to do business in Minnesota, a professional liability insurance policy. Said policy shall insure payment of damage for legal liability arising out of the performance of professional services for Utilities. Said policy shall provide an aggregate limit of $2,000,000. Said policy shall not name Utilities as an insured. 6.5. Consultant shall maintain in effect all insurance coverages required under this Agreement at Consultant’s sole expense and with insurance companies licensed to do business in the state in Minnesota and having a current A.M. Best rating of no less than A-, unless specifically accepted by Utilities in writing. In addition to the requirements stated above, the following applies to the insurance policies required under this Paragraph: 228829v1 Elk River Municipal UtilitiesStandard Agreement for Professional Services 6.5.1. All policies, except the Professional Liability Insurance policy, shall be written on an “occurrence” form (“claims made” and “modified occurrence” forms are not acceptable); 6.5.2. All policies, except the Professional Liability Insurance policy, shall be applied on a “per project” basis; 6.5.3. All policies, except the Professional Liability Insurance and Worker’s Compensation Policies, shall contain a waiver of subrogation naming “Elk River Municipal Utilities”; 6.5.4. All policies, except the Professional Liability Insurance and Worker’s Compensation Policies, shall name “Elk River Municipal Utilities” as an additional insured; 6.5.5. All policies, except the Professional Liability Insurance and Worker’s Compensation Policies, shall insure the defense and indemnity obligations assumed by Consultant under this Agreement; and 6.5.6. All policies shall contain a provision that coverages afforded thereunder shall not be canceled or non-renewed, nor shall coverage limits be reduced by endorsement, without thirty (30) days prior written notice to the Utilities. A copy of Consultant’s Certificate of Insurance which evidences the compliance with this Paragraph must be filed with Utilities prior to the start of Consultant’s Work. Upon request, a copy of Consultant’s insurance declaration page, Rider and/or Endorsement, as applicable shall be provided. Such documents evidencing Insurance shall be in a form acceptable to Utilities and shall provide satisfactory evidence that Consultant has complied with all insurance requirements. Renewal certificates shall be provided to Utilities prior to the expiration date of any of the required policies. Utilities will not be obligated, however, to review such Certificate of Insurance, declaration page, Rider, Endorsement or certificates or other evidence of insurance, or to advise Consultant of any deficiencies in such documents and receipt thereof shall not relieve Consultant from, nor be deemed a waiver of, Utilities’ right to enforce the terms of Consultant’s obligations hereunder. Utilities reserves the right to examine any policy provided for under this paragraph. 6.6. Effect of Consultant’s Failure to Provide Insurance. If Consultant fails to provide the specified insurance, then Consultant will defend, indemnify and hold harmless Utilities, Utilities’ officials, agents and employees from any loss, claim, liability and expense (including reasonable attorney’s fees and expenses of litigation) to the extent necessary to afford the same protection as would have been provided by the specified insurance. Except to the extent prohibited by law, this indemnity applies regardless of the extent to which the underlying occurrence (i.e., the event giving rise to a claim which would have been covered by the specified insurance) is attributable to the negligent or otherwise wrongful act or omission (including 228829v1 Elk River Municipal Utilities Standard Agreement for Professional Services breach of contract) of Consultant, its subcontractors, agents, employees, or delegates, Consultant agrees that this indemnity shall be construed and applied in favor of indemnification. Consultant also agrees that if applicable law limits or precludes any aspect of this indemnity, then the indemnity will be considered limited only to the extent necessary to comply with that applicable law. The stated indemnity continues until all applicable statutes of limitation have run. If a claim arises within the scope of the stated indemnity, Utilities may require Consultant to: 6.6.1. Furnish and pay for a surety bond, satisfactory to Utilities, guaranteeing performance of the indemnity obligation; or 6.6.2. Furnish a written acceptance of tender of defense and indemnity from Consultant’s insurance company. Consultant will take the action required by Utilities within fifteen (15) days of receiving notice from Utilities. 7. Indemnification. Consultant agrees, to the fullest extent permitted by law, to indemnify and hold Utilities, its officials, officers, agents, employees, and volunteers harmless from any damage, liability, or cost (including reasonable attorney’s fees and costs of defense) to the extent caused by Consultant’s negligent acts, errors, or omissions in the performance of professional services under this Agreement and those of his or her subcontractors or anyone for whom Consultant is liable. No supplemental agreement or work order may reduce or limit this obligation. 8. Successors and Assigns. 8.1 Utilities and Consultant each is bound by this Agreement, and the respective partners, successors, executors, administrators, and legal representatives of Utilities and Consultant are likewise bound to the other party, to this Agreement, and to the partners, successors, executors, administrators and legal representatives (and said assigns) of such other party, in respect of all covenants, agreements, and obligations of this Agreement. 8.2 Neither Utilities nor Consultant shall assign, sublet or transfer any rights under or interest in this Agreement (including, but without limitation, monies that may become due or monies that are due) without the written consent of the other, except to the extent that any assignment, subletting, or transfer is mandated by law or the effect of this limitation may be restricted by law. Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under this Agreement. Nothing contained in this Section 8.2 shall prevent Consultant from employing such independent professional associates and consultants as Consultant may deem appropriate to assist in the performance of the Services. 8.3 Nopart ofthis Agreement shall be construed to give any rights or benefits in this Agreement to anyone other than Utilities and Consultant, and all duties and responsibilities 228829v1 Elk River Municipal Utilities Standard Agreement for Professional Services undertaken pursuant to this Agreement will be for the sole and exclusive benefit of Utilities and Consultant, and not for the benefit of any other party. 9. Copyright or Patent Infringement. Consultant shall defendactions or claims charging infringement of any copyright or patent by reason of the use or adoption of any designs, Drawings or Specifications supplied by it, and it shall hold harmless Utilities, its officials, officers, agents, employees, and volunteers from loss or damage resulting from such claims. 10.Miscellaneous. 10.1 Governing Law; Venue. The laws of the State of Minnesota govern the interpretation of this Agreement. In the event of litigation, the exclusive venue shall be in the District Court of the State of Minnesota for Sherburne County. 10.2 Severability. Any provision or part of this Agreement that is held to be void or unenforceable under any law or regulation shall be deemed stricken, and all remaining provisions shall continue to be valid and binding upon Utilities and Consultant, who agree that Agreement shall be reformed to replace such stricken provision or part with a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provisions. 10.3 Waiver. In the particular event that either party shall at any time or times waive any breach of this Agreement by the other, such waiver shall not constitute a waiver of any other or any succeeding breach of this Agreement by either party, whether of the same or any other covenant, condition or obligation. 10.4 Entire Agreement. This Agreement represents the entire agreement of the parties and is a final, complete, and all-inclusive statement of the terms agreed upon, and supersedes and terminates any prior agreement(s), understanding(s), or written or verbal representation(s) made between the parties. 10.5 Notices. Any notice required by this Agreement to be delivered to the other party shall be in writing, and shall be either hand delivered to the other party; deposited in the United States Mail, to be delivered by certified or registered mail, return receipt requests; or deposited with an overnight courier to be delivered to the other party. Notices shall be delivered to the following address for each party: If to Utilities: If to Consultant: Frontier Energy, Inc. Elk River Municipal ATTN: Matt Haley, VP Utilities PO Box 530293 ATTN: Mark Hanson Atlanta, GA 30353-0923 13069 Orono Parkway P.O. Box 430 Elk River, MN 55330-0430 228829v1 Elk River Municipal Utilities Standard Agreement for Professional Services Each party may designate a new or alternate address by providing the same to the other party in writing. 10.6 Conflicts. No salaried officer or employee of Utilities and no member of the ERMU Commission shall have a financial interest, direct or indirect, in this Agreement. The violation of this provision renders the Agreement void. Any federal regulations and applicable state statutes shall not be violated. 11. Non-Discrimination.During the performance of this Agreement, Consultant shall not discriminate against any employee or applicant for employment because of race, color, creed, religion, national origin, sex, marital status, status with regard to public assistance, disability, or age. Consultant shall post in places available to employees and applicants for employment, notices setting forth the provision of this non-discrimination clause and stating that all qualified applicants will receive consideration for employment. Consultant shall incorporate the foregoing requirements of this paragraph in all of its subcontracts for program work, and will require all of its subcontractors for such work to incorporate such requirements in all subcontracts for program work. 12. Dispute Resolution/Mediation. Each dispute, claim or controversy arising from or related to this Agreement or the relationships which result from this Agreement shall be subject to mediation as a condition precedent to initiating arbitration or legal or equitable actions by either party. Unless the parties agree otherwise, the mediation shall be in accordance with the Commercial Mediation Procedures of the American Arbitration Association then currently in effect. A request for mediation shall be filed in writing with the American Arbitration Association and the other party. No arbitration or legal or equitable action may be instituted for a period of ninety (90) days from the filing of the request for mediation unless a longer period of time is provided by agreement of the parties. Cost of mediation shall be shared equally between the parties. Mediation shall be held in the City of Elk River unless another location is mutually agreed upon by the parties. The parties shall memorialize any agreement resulting from the mediation in a Mediated Settlement Agreement, which Agreement shall be enforceable as a settlement in any court having jurisdiction thereof. 13. Exhibits; Incorporation. The following Exhibits that are attached to this Agreement are true and correct, and are incorporated into and made part of this Agreement: Exhibit NameDate A Scope of Work and Fees 11/27/2023 B \[Signature pages and Exhibits follow\] 228829v1 Elk River Municipal UtilitiesStandard Agreement for Professional Services IN WITNESS WHEREOF, the parties have executed this Agreement to be effective as of the date of the last signature affixed below. ELK RIVER MUNICIPAL UTILITIES: FRONTIER ENERGY, INC.: BY: _______________________________BY: _______________________________ Mark Hanson Matt Haley Its: General Manager Its: Vice President Date: _______________________________ Date: _______________________________ Exhibit A – Scope of Work and Fees Project Description 228829v1 Elk River Municipal Utilities Standard Agreement for Professional Services Consultant shall perform energy savings calculations and identifyrebate opportunities for custom commercial and industrial energy efficiency projects and assist in the management of Utilities’ commercial and residential energy conservation programs - Performing in person site visits and facilitating communications between Utilities and its customers. Scope of Services Project Tasks & Deliverables: Consultant shall undertake reasonable efforts to perform the following Tasks and produce the Deliverables: In Depth Understanding of TRM – Technical Reference Manual Keep up on baselines’ updates on yearly basis Energy Savings vs Spending goals Extensive resource investment in staying on top of the latest Technologies HVAC Data Centers Commercial and Industrial Energy Audits Supporting design and implementation to achieve conservation goals Reviewing overall programs Supporting design and implementation of programs Make customers dependable on ERMU for energy needs. Use EE programs as a tool for customer service Assist with increasing sales through electrification Use Frontier’s relationships with DOE and State offices to inform customers with available grants and fundings Expose ERMU to latest R&D Assist with ever changing rules and guidelines with ECO Act Custom Rebate Calcs HVAC and Controls Data Centers/IT Equipment Industrial Processes Refrigeration Food Service Equipment Specialized Lighting Design Assistance – motivate customers to implement projects with energy savings, cost savings, rebate estimates and payback analysis Train ERMUs internal staff Provide a technical software to increase efficiencies and EE program management Develop relationships with Trade Allies Meetings to update status of programs Clear communications and full transparency All the calculations and savings numbers with clear documentation on hand Access to P3Lite included Assist with filing yearly program results EUI savings will be included as a deliverable dependent that Elk River MUC provides all the details to calculate savings remotely. Complicated calcs that need site visits and large quantity of time to calculate the savings will be evaluated for chargeable fee on case-by-case basis. Ad hoc Services are extra – approval needed per project. 228829v1 Elk River Municipal Utilities Standard Agreement for Professional Services Compressed Air Studies Vacuum Studies DI material cost and labor Low-income program assistance Residential Energy Audits Project Timeline Consultant shall perform the Services and provide the Deliverables by the following dates: Yearly energy savings goals to be met by the end of each calendar year. Individual project timelines and deadlines will vary based on the size and scope of the project. Project Completion Date: December 31st, 2026 Location of Services to be Performed Consultant shall provide the Services in the following locations: On-Site: Utilities site locations will vary and be determined as need arises. Off-Site: 7935 Stone Creek Dr., Suite 140, Chanhassen, MN 55317 Key Personnel 1. Tanuj Gulati, Director 2. Doug Eli, Sr. Engineer 3. Alexandra Blair, Program Associate Compensation Schedule $15,000.00 one-time fee and $10,000.00 monthly + $0.0187 per kWh delivered for Utilities’ 2024 savings goal of 3,200,000 kWh shall be payable in consideration of the provision of the Services pursuant to this Scope of Work. Any additional work requested beyond this amount shall be negotiated outside this Scope of Work or billed according to the rates below. Mileage charges will be billed at the applicable IRS mileage rate. Category202320242025 President306324343 Vice President301319338 Sr. Director301319338 Director / Principal Consultant281298316 Sr. Manager / Engineering Manager250265281 Manager222235249 Sr. Engineer / Sr. Program Mgr202214227 Engineer / Program Mgr168178189 Sr. Program Consultant / Sr. Analyst153162172 Program Consultant / Analyst133141149 Sr. Program Coordinator / Sr. Technician112119126 Program Coordinator / Technician97103109 Program Associate / Direct Install 818691 Technician Administrative758080 228829v1