HomeMy WebLinkAboutOrdinance 4995 ORDINANCE NO. 4995
AN ORDINANCE WAIVING THE REQUIREMENTS OF
FORMAL COMPETITIVE BIDDING AND APPROVING A
CONTRACT WITH POWER SECURE, INC. FOR THE
PURCHASE OF BACK-UP POWER GENERATION EQUIPMENT
AND INSTALLATION SERVICES FOR THE WEST SIDE
WASTEWATER TREATMENT PLANT AND THE
HAMESTRING SEWER LIFT STATION IN THE AMOUNT OF
$ 1 ,986,786.68; AND APPROVING A 2% CONTINGENCY OF
$403000.00.
WHEREAS, due to the unique and proprietary nature of the switch gear equipment involved,
the long delivery times for generators and replacement . parts, and the requirement that power
management for all three major wastewater facilities be overseen by a single entity, it is essential that
all three back-up generators be of the same manufacture.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF FAYETTEVILLE, ARKANSAS:
Section 1 . That the City Council of the City of Fayetteville, Arkansas hereby finds that such
circumstances constitute an exceptional situation where competitive bidding is not feasible or
practical, waives the requirements of formal competitive bidding for back-up power generation
equipment and installation services, and approves a contract with Power Secure, Inc. for the purchase
of back-up power generation equipment and installation services for the West Side Wastewater
Treatment Plant and the Hamestring Sewer Lift Station in the amount of $ 1 ,986,786.68.
Section 2. That the City Council of the City of Fayetteville, Arkansas hereby approves a 2%
contingency of $40,000.00.
�• F,FK/TR64 , .,
c G� SG.
PASSED and APPROVED this 20'h day of March, 2007. ^U G
APPROVE : ATTEST: 'c : FAYETTEVILLE�
By: By:
DAN COODY, Mayor S NDRA E. SMITH, City Clerk/Treasurer
a
AGREEMENT
This contract executed this Mday of IgAV )4 2007, between the City of
Fayetteville, Arkansas and PowerSecure, Inc. In consideration of the mutual covenants
contained herein, the parties agree as follows:
1 . PowerSecure, at its own cost and expense shall furnish all labor, materials,
supplies, machinery, equipment, tools, supervision, bonds, insurance, tax permits,
and all other accessories and services necessary to complete the work described in
the proposal for PowerSecure Interactive Distributed Generation' Services,
Westside Wastewater Treatment Facility, Fayetteville, AR, and the work described
in the proposal for PowerSecure Interactive Distributed Generation' Services,
Hamestring Lift Station, Fayetteville, AR, and in accordance with specifications
attached hereto and made a part hereof under, all included herein as if spelled out
word for word.
2. The City of Fayetteville shall pay PowerSecure based on their proposal in an
amount not to exceed $ 1,986,786.68. Payments will be made after approval and
acceptance of work and submission of invoice. Payments will be made
approximately 30 days after receipt of invoice.
3. The Contract documents which comprise the contract between the City of
Fayetteville and PowerSecure consist of this Contract and the following documents
attached hereto, and made a part hereof:
A. Contract General Provisions
B. Exhibit A PowerSecure Interactive Distributed Generation' Services,
Westside Wastewater Treatment Facility, Fayetteville, AR.
C. Westside 2000kW Drawings.PDF
D. Exhibit B PowerSecure Interactive Distributed Generation' Services,
Hamestring Lift Station, Fayetteville, AR.
E. Hamestring 2000kW Drawings.PDF
4. Freedom of Information Act: City of Fayetteville contracts and documents
prepared while performing city contractual work are subject to the Arkansas
Freedom of Information Act. If a Freedom of Information Act request is presented
to the City of Fayetteville, the contractor will do everything possible to provide the
documents in a prompt and timely manner as prescribed in the Arkansas Freedom
of Information Act (A.C.A. 25-19-101 et. Seq.). Only legally authorized photo
coping costs pursuant to the FOIA, /may be assessed for this compliance.
WITNESS OUR HANDS THIS dSI DAY OF U , 2007.
CITY OF FAYETTEVILLE,
FAYETTEVILLE, ARKANSAS
DAN COODY, Mayor
Agree t Page 1 of 2
AGREEMENT
Attest: _ ; FAYETTEVILLE ; _?
�z0
9RkANSP��2,s
SONDRA SMITH, City Clerkitty C1l�eMrk�k
POWERSECURE, INC.
1 i
BYS , d+1ee4intrl FCes;den"r4- U j
NAME AND TITLE
i
Attest:
i
i
I
COMPANY SECRETARY
I
BUSINESS ADDRESS
Agreement Page 2 of 2
CONTRACT GENERAL PROVISIONS
ARTICLE 1 . INVOICING AND TERMS OF PAYMENT
1 .1 CITY OF FAYETTEVILLE shall pay POWERSECURE the price specified in paragraph 2 of the
agreement in accordance with the following schedule:
% of Contract
Price
POW ERSECURE's Receipt of 15
IDG® System Purchase Order
Equipment Ship Dale to 30
project site
Substantial Completion of 30
Installation
Final Commissioning/Start-up Commissioning/Start-up25
1 .2 Any work beyond the scope of Work described herein requested of and performed by
POWERSECURE ("Additional Work") shall be billed to CITY OF FAYETTEVILLE at mutually
agreed to rates. Prior to performing any Additional Work POWERSECURE will notify CITY OF
FAYETTEVILLE in writing of the Additional Work requested, the reason for such request and the
rates under which the Work will be performed. Changes, modifications, or amendments in scope,
price or fees to this contract shall not be allowed without a prior formal contract amendment
approved by the Mayor and the City Council in advance of the change in scope, cost or fees.
1 .3 The prices for the Work and any Additional Work are inclusive of federal, state, municipal or other
sales or use tax. The invoice will include a line item for sales tax.
1 .4 Payment for all Work, Additional Work or other services, if any, shall be due and payable by CITY
OF FAYETTEVILLE within thirty (30) days from CITY OF FAYETTEVILLE's receipt of the invoice
for such Work, Additional Work or other services. POWER SECURE will, upon completion of the
WORK and before final payment is due, furnish CITY OF FAYETTEVILLE with reasonable
evidence that all services, labor, materials, and equipment have been paid in full and agrees to
execute the Lien Waiver attached hereto as Exhibit B.
1 .5 If CITY OF FAYETTEVILLE fails to pay any invoice by the due date, CITY OF FAYETTEVILLE
shall liable to POWERSECURE for any attorney fees incurred in collection of any amount due and
shall pay interest to POWERSECURE on the amount past due in the amount of 1 .5% per month.
ARTICLE 2. OBLIGATIONS OF POWER SECURE
2.1 Independent Power Secure
POWER SECURE is an independent CONTRACTOR and will maintain complete control of and
responsibility for its employees, SUBCONTRACTORS, and agents. POWER SECURE shall also be solely
responsible for the means and methods for carrying out the Scope of Services and for the safety of its
employees.
2.2 Lower-Tier Contractors
2.2. 1 Within 30 working days after the execution of this AGREEMENT, POWER SECURE will submit to
CITY OF FAYETTEVILLE the names of all Lower-Tier Contractors proposed for the Work. POWER
SECURE will not employ any Lower-Tier Contractors that CITY OF FAYETTEVILLE may object to
as lacking capability to properly perform. No changes will be allowed from the approved Lower-Tier
Contractor list without the prior written approval of CITY OF FAYETTEVILLE.
2.2.2 POWER SECURE agrees that it is as fully responsible to CITY OF FAYETTEVILLE for the acts
and omissions of its Lower-Tier Power Secures and of persons either directly or indirectly
employed by them as it is for the acts and omissions of persons directly employed by POWER
SECURE.
2.2.3 Nothing contained in this CONTRACT will be construed to create any contractual relationship
between any Lower-Tier Contractor and CITY OF FAYETTEVILLE.
1 of 9
CONTRACT GENERAL PROVISIONS
2.2.4 POWER SECURE will provide certification that the Lower-Tier Contractor has the necessary
permits and licenses for the Work proposed.
2.3 Differing Site Conditions
2.3. 1 POWER SECURE will promptly, and before such conditions are substantially disturbed, notify CITY
OF FAYETTEVILLE in writing of:
•(a) Subsurface or latent physical conditions at the site differing materially from those indicated
in this CONTRACT.
•(b) Physical conditions at the site, of an unusual nature, differing materially from those
ordinarily encountered and generally recognized as inherent in the Work.
2.3.2 Upon notice CITY OF FAYETTEVILLE will promptly investigate the conditions. If the conditions do
materially differ and cause an increase or decrease in POWER SECURE's cost of, or the time
required for, performing any part of the Work, CITY OF FAYETTEVILLE will make an equitable
adjustment and modify this CONTRACT in writing.
2.3.3 No claim of POWER SECURE under this clause will be allowed unless POWER SECURE has
given the notice required above.
2.4 Rejected Material
Any material rejected by CITY OF FAYETTEVILLE because of nonconformity with this CONTRACT will be
removed at once from the vicinity of the Work by POWER SECURE at its own expense.
2.5 Warranty
2.5.1 The Warranty period for equipment will be for a period of five (5) years commencing on the
acceptance date and the Warranty period for services will be for a period of one (1 ) year
commencing on the acceptance date.
2.5.2 POWERSECURE warrants that:
2.5.2.1 Services will be performed in a professional and workmanlike manner consistent with
industry standards;
2.5.2.2 Its agents, and employees, are qualified and competent to perform the Work and
Additional Work, if any, and that all tools and equipment furnished by POWERSECURE in
its performance of the Work and Additional Work are, and shall be, kept in good working
order.
2.5.2.3 All equipment will be free from defects in material and workmanship and will function in
accordance with the specifications;
2.5.2.4 That it has the requisite authority to sell the equipment;
2.5.2.5 There are no pending or threatened claims or causes of action that would have an
adverse effect on POW ERSECURE's ability to perform its obligations under this Contract
or upon the City of Fayetteville of Fayetteville's ability to use the equipment;
2.5.2.6 The equipment and services will not infringe on any patent, trademark or copyright;
2.5.3 In the event that CITY OF FAYETTEVILLE or the City of Fayetteville of Fayetteville notifies
POWERSECURE of any defect in materials or workmanship during the applicable warranty period,
POWERSECURE shall cored the defect at its own expense. POWERSECURE shall not be
responsible for any problems or defects attributable to improper operation, maintenance, or use of
the Work or any Additional Work.
2.5.4 THE WARRANTIES SET FORTH IN THIS CONTRACT ARE EXCLUSIVE, AND NO OTHER
WARRANTIES OR REMEDIES OF ANY KIND, WHETHER STATUTORY, WRITTEN, ORAL,
EXPRESS, OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF
2of9
CONTRACT GENERAL PROVISIONS
INFRINGMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, OR
WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, SHALL APPLY.
TO THE MAXIMUM EXTENT PERMITTED, POWERSECURE HEREBY ASSIGNS TO CITY OF
FAYETTEVILLE ALL EXPRESS AND IMPLIED WARRANTIES FROM THE MANUFACTURER OF
ANY PARTS AND EQUIPMENT INSTALLED BY POWERSECURE AS A PART OF THE WORK
(see Manufacturer's warranties for details). Except as provided in Section 2.2, POWERSECURE
shall not be responsible for any work done by others or for any loss, damage, cost or expense
arising out of or resulting from such work, unless authorized by POWERSECURE in advance.
2.6 Insurance
2.6.1 POWER SECURE will maintain throughout this CONTRACT the following insurance:
(a) Worker's compensation insurance in the statutory amount and employees liability
insurance in an amount not less than $500,000 for all employees engaged in the Work.
(b) Comprehensive automobile and vehicle liability insurance covering claims for injuries to
members of the public and/or damages to property of others arising from use of motor
vehicles, including onsite and offsite operations, and owned, non-owned, or hired vehicles,
with $1 ,000,000 combined single limits.
(c) Commercial general liability insurance covering claims for injuries of members of the
public or damage to property of others arising out of any covered act or omission of
POWER SECURE or of any of its employees, agents, or Power Secures, with $5,000,000
per occurrence and in the aggregate.
(d) Any other insurance required by law (e.g., U.S. Longshoreman and Harbors Act coverage,
when harbor operations, offshore operations, or operations on navigable waterways are
involved).
2.6.2 Insurance coverage in Items (b) and (c) above will name CITY OF FAYETTEVILLE as additional
insured. Such insurance will be the primary coverage to CITY OF FAYETTEVILLE.
2.6.3 Before commencing Work under this contract, POWER SECURE will furnish CITY OF
FAYETTEVILLE with certificates of insurance verifying coverage's and additional insureds.
Certificates also will state that the insurance carrier will give CITY OF FAYETTEVILLE thirty (30)
days notice of any insurance cancellation or material alteration.
2.7 Indemnity
2.7.1 To the maximum extent permitted by law, POWER SECURE will indemnify CITY OF
FAYETTEVILLE and its officers, Contractors, affiliated corporations, and employees from all
claims, damages, losses, and costs, including litigation expenses and attorney's fees, arising out of
or resulting from, or alleged to have resulted from, the performance of the Work, including any act
or omission of POWER SECURE, any Lower-Tier Contractor, anyone directly or indirectly
employed by any of them or anyone for whose acts any of them may be liable. The foregoing will
not apply in the event that the claim, damages, losses, or expenses are caused by the sole
negligence of CITY OF FAYETTEVILLE but will apply to losses caused by the concurrent fault or
negligence of CITY OF FAYETTEVILLE and POWER SECURE.
2.7.2 This indemnification obligation shall not be limited in any way by any limitation on the amount of
compensation, damages or benefits payable under workers compensation, disability benefit or
other employee benefit acts.
2.8 Codes, Laws, and Regulations
POWER SECURE will comply with all applicable codes, laws, regulations, standards, and ordinances in
force during the term of this CONTRACT.
3of9
CONTRACT GENERAL PROVISIONS
2.9 Permits, Licenses, and Fees
POWER SECURE will obtain and pay for all permits and licenses required by law that are associated with
the Work.
2.10 Safety
POWER SECURE is solely responsible for health and safety of its employees and its SUBCONTRACTORS.
POWER SECURE shall have a health and safety plan fully compliant with health and safety laws and
consistent with CITY OF FAYETTEVILLE health and safety plans. POWER SECURE shall provide all
applicable safety training and equipment required in the health and safety plans. POWER SECURE is
responsible for ensuring that its SUBCONTRACTORS comply with this provision. Visits and observations
made by CITY OF FAYETTEVILLE will not relieve the POWER SECURE of its obligation to conduct
comprehensive safety inspections of the site and provide adequate safety in conformance with this
CONTRACT.
2.11 Protection of Work and Property
2.11 .1 POWER SECURE will at all times safely guard and protect from damage the Work and adjacent
property. All loss or damages arising out of the nature of the Work to be done under this
AGREEMENT, including, but not limited to, action of the elements, will be the responsibility of
POWER SECURE.
2.11 .2 POWER SECURE will confine its equipment, the storage of materials, and the operation of its
workers to limits shown on the Drawings or indicated by law, ordinances, permits, or directions of
CITY OF FAYETTEVILLE and will not unreasonably encumber the premises with its materials.
2.12 Responsibility of Power Secure to Act in Emergency
In emergencies affecting the safety of persons, work or property at the site and adjacent thereto, POWER
SECURE will act, without previous instructions from CITY OF FAYETTEVILLE, as the situation warrants.
POWER SECURE will notify CITY OF FAYETTEVILLE immediately thereafter. POWER SECURE will
submit the name, address, and phone number of a responsible individual or individuals who will be available
on a 24-hour basis to handle emergency problems in connection with the Work.
2.13 Equipment, Materials, and Appliances
2. 13.1 Unless otherwise stipulated, POWER SECURE will provide and pay for all materials, labor, water,
tools, equipment, heat, light, power, transportation, telephone, temporary facilities, and other
facilities, and incidentals necessary for the execution and completion of the Work. Unless otherwise
specified, all materials will be new, and both workmanship and materials will be of good quality.
2. 13.2 In selecting and/or approving equipment for installation in the project, POWER SECURE assumes
all responsibility for injury or claims resulting from failure of the equipment to comply with applicable
national, state, and local safety codes or requirements, or the safety requirements of a recognized
agency, or POWER SECURE's defective workmanship or materials.
2.14 Schedules and Progress Reports
2.14.1 The POWER SECURE must meet the schedule specified in the Scope of Services. When
requested by CITY OF FAYETTEVILLE and within 10 days prior to the start of the Work, POWER
SECURE will prepare and submit to CITY OF FAYETTEVILLE a progress schedule identifying the
completion of the Work outlined in this CONTRACT, within the deadlines and milestones
established herein.
2.14.2 During the progress of the Work, POWER SECURE will maintain material deliveries and employ
sufficient workers and equipment to accomplish the Work in conformance with the submitted
schedule or deadlines and milestones established.
2.14.3 If requested by CITY OF FAYETTEVILLE, POWER SECURE will forward to CITY OF
FAYETTEVILLE on the 20th day of each month, a summary report of the progress of the various
parts of the Work, slating the existing status, rale of progress, estimated time of completion, and
cause of delay, if any.
4of9
CONTRACT GENERAL PROVISIONS
2.14.4 If the completion of any part of the Work or the delivery of materials is behind the schedule,
POWER SECURE will submit in writing a plan for bringing the Work within the schedule. CITY OF
FAYETTEVILLE may require that one or more of the following courses of action be taken by
POWER SECURE to accelerate the schedule:
(a) Increase the working week to 6 or 7 days
(b) Increase the labor force
(c) Provide and utilize additional equipment
(d) Increase the working day to 10 hours or more.
2.14.5 POWER SECURE will remain on such accelerated work schedule until such time as, in the opinion
of CITY OF FAYETTEVILLE, the degree of completion of the Work complies with the original
schedule. All extra costs of any accelerated work schedule will be bome by POWER SECURE.
2.14.6 Failure to comply with such an accelerated work schedule may result in no further monthly
progress payments until such time as the degree of completion of the Work complies with the
approved schedule or a revised schedule has been approved by CITY OF FAYETTEVILLE.
2.15 Hazardous or Toxic Substances
If the Work under this AGREEMENT involves hazardous or toxic substances, POWER SECURE will strictly
comply with all safety or training requirements promulgated by law or regulation.
2.16 Publicity
POWER SECURE will not disclose the nature of its Work on the PROJECT or engage in any other publicity
public media disclosures with respect to this PROJECT without the prior written consent of CITY OF
FAYETTEVILLE.
2.17 Key Personnel
POWER SECURE will provide qualified personnel to perform its Work. Within 10 days of execution of this
CONTRACT or receipt of a written authorization to proceed, POWER SECURE will submit a list of key
personnel, including a designated project manager or superintendent, if requested by CITY OF
FAYETTEVILLE. POWER SECURE will not change or reassign any of the designated key personnel without
the written approval of CITY OF FAYETTEVILLE.
2.18 Copies of Data
One legible copy each of all notes, field notes, drilling logs, sample classifications, drawings, including
record drawings, prints, plans, and other applicable documents prepared under the terms of this
CONTRACT will be delivered by POWER SECURE to CITY OF FAYETTEVILLE upon completion of the
Work and prior to final payment under 1 .3 above.
2.20 Access to Records
POWER SECURE will maintain accounting records, in accordance with generally accepted accounting
principles and practices, to substantiate all invoiced amounts. Said records will be available for examination
by CITY OF FAYETTEVILLE during POWER SECURE's normal business hours for a period of 3 years after
POWER SECURE's final payment to the extent required to verify the costs incurred hereunder.
2.21 Suspension of Work
POWER SECURE will, upon written notice from CITY OF FAYETTEVILLE, suspend, delay or interrupt all or
a part of the Work. In such event, POWER SECURE will resume the Work upon written notice from CITY OF
FAYETTEVILLE, and an extension of time and/or an equitable adjustment in compensation, if appropriate,
will be mutually agreed upon.
2.22 Performance and Payment Bonds
5of9
CONTRACT GENERAL PROVISIONS
POWER SECURE will furnish Performance and Payment Bonds; each in an amount equal to the total
compensation under this CONTRACT, as security for compliance with the provisions of this AGREEMENT.
All bonds will remain in effect for at least a year after final payment and will be in a form and from a bonding
company acceptable to CITY OF FAYETTEVILLE. All .bonds will be filed with the County Clerk's office for
Washington County, Arkansas before beginning work on the project.
ARTICLE 3. OBLIGATIONS OF CITY OF FAYETTEVILLE
3.1 Changes
3.1 .1 CITY OF FAYETTEVILLE may, by written order, make changes, revisions, additions, deletions
(collectively hereinafter called "changes") in the Work. POWER SECURE will not proceed with any
proposed changes unless notified to proceed in writing by CITY OF FAYETTEVILLE.
3.1 .2 Nothing herein will be construed as relieving POWER SECURE of its obligations to perform the
Work, including without limitation the failure of the parties to agree upon POWER SECURE's
entitlement to, or the amount of, any adjustment in time or compensation.
3.1 .3 Any claim by POWER SECURE for an adjustment under this Article must be asserted in writing,
fully supported by factual information, to CITY OF FAYETTEVILLE within 30 days from the date of
receipt by POWER SECURE of the written change authorization from CITY OF FAYETTEVILLE or
within such extension of that 30-day period as CITY OF FAYETTEVILLE, in its sole discretion, may
grant in writing at POWER SECURE's request prior to expiration of said period..
3. 1 .4 If the Work is reduced by changes, such action will not constitute a claim for damages based on
loss of anticipated profits.
3.2 Observation of the Work
CITY OF FAYETTEVILLE reserves the right, but not the obligation, to inspect or otherwise evaluate the
Work during the various stages to observe the progress and quality of the Work and to determine, in
general, if the Work is proceeding in accordance with the intent of this CONTRACT. CITY OF
FAYETTEVILLE will not be required to make comprehensive or continuous inspections to check quality or
quantity of the Work. Visits and observations made by CITY OF FAYETTEVILLE will not relieve POWER
SECURE of its obligation to conduct comprehensive inspections of the Work, to furnish materials, to perforin
acceptable Work, and to provide adequate safety precautions in conformance with this CONTRACT.
3.3 Limitations of CITY OF FAYETTEVILLE's Responsibilities
CITY OF FAYETTEVILLE will not be responsible for POWER SECURE's means, methods, techniques,
sequences or procedures of the Work, or the safety precautions including compliance with the programs
incident thereto. CITY OF FAYETTEVILLE will not be responsible for POWER-SECURE's failure to perform
the Work in accordance with this CONTRACT.
3.4 CITY OF FAYETTEVILLE's Right to do Work
If POWER SECURE, in the opinion of CITY OF FAYETTEVILLE, neglects to prosecute the Work properly or
neglects or refuses at its own cost to take up and replace Work rejected by CITY OF FAYETTEVILLE, then
CITY OF FAYETTEVILLE will, without prejudice to any other right which CITY OF FAYETTEVILLE may
have under this CONTRACT, take over that portion of the Work which has been improperly executed and
make good the deficiencies and deduct the cost thereof from the payments then or thereafter due POWER
SECURE.
3.5 Furnished Data
CITY OF FAYETTEVILLE will provide POWER SECURE technical data in its possession, including, but not
limited to, previous reports, maps, surveys, borings, and other information relating to POWER SECURE's
Scope of Work. POWER SECURE may reasonably rely upon the accuracy of the information provided by
CITY OF FAYETTEVILLE. Nothing in this clause relieves POWER SECURE of its responsibility to obtain
any other data required for the execution of the Work.
ARTICLE 4. GENERAL LEGAL PROVISIONS
6of9
CONTRACT GENERAL PROVISIONS
4.1 Proprietary Information
Except as otherwise authorized in writing by CITY OF FAYETTEVILLE, all drawings, specifications,
technical data, and other information furnished to POWER SECURE or developed by POWER SECURE or
others in connection with the Scope of Work are, and will remain, the property of CITY OF FAYETTEVILLE,
and may not be copied or otherwise reproduced or used in any way except in connection with the Scope of
Work, or disclosed to third parties or used in any manner detrimental to the interest of CITY OF
FAYETTEVILLE.
4.2 Claims for Extra Work
In any case where POWER SECURE deems additional compensation will become due, POWER SECURE
will notify CITY OF FAYETTEVILLE, in writing, of its intention to make claim for such compensation before it
begins the Extra Work on which it bases the claim. If such notification is not given or POWER SECURE fails
to keep strict account of actual cost, then POWER SECURE hereby agrees to waive the claim for such
additional compensation. Such notice by POWER SECURE, and the fact that CITY OF FAYETTEVILLE has
kept account of the cost, will not be construed as proving the validity of the claim. Claims for additional
compensation will be made in detail and submitted, in writing, to CITY OF FAYETTEVILLE within 10 days
following completion of that portion of the Extra Work for which POWER SECURE bases its claim. In case
the claim is found to be just, it will be allowed and paid for as provided in this CONTRACT.
4.3 Assignment
Neither party shall have the power to or will assign any of the duties or rights or any claim arising out of or
related to this CONTRACT , whether arising in tort, contract or otherwise, without the written consent of the
other party. Any unauthorized assignment is void and unenforceable. These conditions and the entire
CONTRACT are binding on the heirs, successors, and assigns of the parties hereto.
4.4 Termination
4.4.1 Termination for Convenience
All or part of this CONTRACT may be terminated by CITY OF FAYETTEVILLE for its convenience.
In such event, POWER SECURE will be entitled to compensation for Work competently performed
up to the date of termination and reasonable termination expenses as determined within the
discretion of CITY OF FAYETTEVILLE. POWER SECURE will not be entitled to compensation or
profit on Work not performed.
4.4.2 Termination for Default
CITY OF FAYETTEVILLE may, by written notice, terminate the whole or any part of this
CONTRACT for default in the event that POWER SECURE fails to perform any of the provisions of
this CONTRACT, or fails to make progress as to endanger performance of this CONTRACT in
accordance with its terms, or, in the opinion of CITY OF FAYETTEVILLE, becomes financially or
legally incapable of completing the Work and does not correct such to CITY OF FAYETTEVILLE's
reasonable satisfaction within a period of 7 days after receipt of notice from CITY OF
FAYETTEVILLE specifying such failure. If, after notice of termination, it is determined for any
reason that POWER SECURE was not in default or that the default was excusable, the rights and
obligations of the parties will be the same as if the notice of termination had been issued pursuant
to "TERMINATION FOR CONVENIENCE" In the event of termination for default, POWER
SECURE will not be entitled to termination expenses.
4.4.3 Regardless of the cause of termination, the POWER SECURE shall deliver to CITY OF
FAYETTEVILLE legible copies of all completed or partially completed work products and
instruments of service and all materials and equipment previously paid for by CITY OF
FAYETTEVILLE.
4.4.4 The rights and remedies of CITY OF FAYETTEVILLE provided in this Article will not be exclusive
and are in addition to any other rights and remedies provided by law or equity or under this
CONTRACT.
4.5 Time of the Essence
749
CONTRACT GENERAL PROVISIONS
Time is of the Essence with respect to POWER SECURE's performance of the Work.
4.6 Delays and Extension of Time
4.6.1 If POWER SECURE intends to file a claim for extension of time for a delay, it will, within 48 hours
of the occurrence, give written notice of claim to CITY OF FAYETTEVILLE stating the circum-
stances, the possible extension involved, and the reasons for the claim. Within 7 days after the
cause of delay has been remedied, POWER SECURE will give written notice to CITY OF
FAYETTEVILLE of the actual time extension requested.
4.6.2 Within 15 days after POWER SECURE submits to CITY OF FAYETTEVILLE a specific written
request for an extension of time, CITY OF FAYETTEVILLE will make the final decision on the
request for extension of time.
4.6.3 No extension of time will be considered for weather conditions normal to the area in which the Work
is being performed. Unusual weather conditions, if determined by CITY OF FAYETTEVILLE to be
of a severity that would stop all progress of the Work may be considered as cause for an extension
of completion time.
4.6.4 Delays in delivery of equipment or material purchased by POWER SECURE or its
SUBCONTRACTORS (including CITY OF FAYETTEVILLE-selected equipment) or failure of
POWER SECURE or its SUBCONTRACTORS to perform will not be considered as a just cause for
delay. POWER SECURE will be fully responsible for the timely ordering, scheduling, expediting,
delivery, and installation of all equipment and materials.
4.7 Liquidated Damages
Should POWER SECURE fail to complete the Work or any part thereof within any time agreed upon in this
CONTRACT, with any authorized extensions, POWER SECURE will reimburse CITY OF FAYETTEVILLE
for the additional expense and damage for each calendar day, Sundays and legal holidays excluded, that
the Work remains incomplete after the CONTRACT completion date. It is agreed that the amount of such
additional expense and damage incurred by reason of failure to complete the Work is that stipulated in this
CONTRACT. The said amount is hereby agreed upon as a reasonable estimate of the damages that will
probably ensue or be incurred by the CITY OF FAYETTEVILLE in the event that POWER SECURE fails to
meet the completion date. It is expressly understood and agreed that this amount is not to be considered in
the nature of a penalty, but as liquidated damages that have accrued against POWER SECURE. CITY OF
FAYETTEVILLE will have the right to deduct such damages from any amount due or that may become due
POWER SECURE, or the amount of such damages will be due and collectible from POWER SECURE.
4.8 Waivers
No waiver by either party of any default by the other party in the performance of any provision of this
CONTRACT will operate as or be construed as a waiver of any future default whether like or different in
character.
4.9 Jurisdiction
The law of the state of Arkansas shall govern the validity of this CONTRACT, its interpretation and
performance, and any other claims related to it.
4.10 Severability and Survival
If any of the provisions contained in this CONTRACT are held invalid, illegal, or unenforceable, the
enforceability of the other remaining provisions shall not be affected or impaired thereby. Limitations of
liability, indemnities, and other express representations shall survive termination of this CONTRACT for any
cause.
4.11 Force Majeure
Neither party to this CONTRACT will be liable to the other party for delays in performing the Work, or for the
direct or indirect cost resulting from such delays, that may result from acts of God, acts of governmental
authorities, extraordinary weather conditions or other natural catastrophes, or any other cause beyond the
8of9
n
CONTRACT GENERAL PROVISIONS
reasonable control or contemplation of either party. Each party will take reasonable steps to mitigate the
impact of any Force Majeure.
4.12 Authorization to Proceed
Execution of this CONTRACT by CITY OF FAYETTEVILLE will be authorization for POWER SECURE to
proceed with the Work unless otherwise provided for in this CONTRACT.
4.13 No Third-Party Beneficiaries
This AGREEMENT gives no rights or benefits to anyone other than POWER SECURE and CITY OF
FAYETTEVILLE, and has no third-party beneficiaries.
4.14 Work
The word "Work" will include all material, labor, tools, and all appliances, machinery, and transportation,
necessary to perform and complete the Scope of Work, and such additional items not specifically indicated
or described that can be reasonably inferred as belonging to the item described or indicated and as required
by good practice to provide a complete and satisfactory system. As used herein, "provide" will be
understood to mean "furnish and install, complete in-place."
9of9
David Jurgens
Submitted By
City of Fayetteville
Staff Review Form
City Council Agenda Items
or
Contracts
20 -Mar -07
City Council Meeting Date
Water/Wastewater
Division
Action Required:
Water/Wastewater
Department
of a contract with Power Secure, Inc., for the purchase of backup power generation equipment and
n services for the West Side Wastewater Treatment Plant and the Hamestring Sewer Lift Station, WSIP
;ts WP -2 and WL-6, in the amount of $1,986,786.68, approve a 2% contingency of $40,000.00, and
of a bid waiver.
$2,026,786.68 $ 79,560,216.00
Cost of this request Category / Project Budget
4480.9480.5801.00 $ 66,620,670.52
Account Number Funds Used to Date
02133.0399 $ 12,939,545.48
Project Number Remaining Balance
Budgeted Item xx Budget Adjustment Attached
Wastewater System Imp Project
Program Category / Project Name
Water and Wastewater
Program I Project Category Name
Water/Sewer
Fund Name
Previous Ordinance or Resolution #
pfr1pan
Date Original Contract Date:
Original Contract Number:
Citv Attornev Date
City Council Meeting of March 20, 2007
CITY COUNCIL AGENDA MEMO
To: Fayetteville City Council
Thru: Mayor Dan Goody
Fayetteville Sewer Committee
From: David Jurgens, Water and Wastewater Director
Date: 1 March 2007
Subject: Approval of a contract with Power Secure, Inc., for the purchase of backup power generation
equipment and installation services for the West Side Wastewater Treatment Plant and the Hamestring
Sewer Lift Station, WSIP subprojects WP -2 and WL-6, in the amount of $1,986,786.68, approve a 2%
contingency of $40,000.00, and approval of a bid waiver
RECOMMENDATION
City Administration recommend approval of a contract with Power Secure, Inc., for the purchase of backup
power generation equipment and installation services for the West Side Wastewater Treatment Plant and the
Hamestring Sewer Lift Station, WSIP subprojects WP -2 and WL-6, in the amount of $1,986,786.68, approve a
2% contingency of $40,000.00, and approve a bid waiver.
The City's National Pollution Prevention Discharge (NPDES) permit requires backup power to wastewater
facilities. In 2005, the City purchased a backup power generator for the Noland WWTP from Power Secure,
and secured their services for peak usage power management. This arrangement has worked very well and
meets the regulatory requirement for the Noland WWTP. Since that time, the public power supply has failed
on several occasions, due to both winter ice storms and regional summer peak electrical demands. Our plant
operations have proceeded with no interruptions.
Additionally, using the generator under Power Secure's management has created a monthly savings of over
$16,000 by using the generator during peak consumption periods. At this rate and by continuing to manage
our peak power consumption, the initial capital cost for the generators themselves will be recouped in power
savings in sixty-two months.
The construction of the West Side WWTP and Hamestring lift stations have progressed such that we now need
to procure backup power generators for these two facilities. Attached is the proposed contract with Power
Secure for purchase of the generators required for the West Side WWTP and the Hamestring Lift Station.
Due to the unique and proprietary nature of the switch gear equipment, the long delivery times for generators
and replacement parts, and the requirement that the power management for all three major facilities be
overwatched by one entity, it is essential that all three backup power generators be of the same manufacture.
This was the intent when the first generator was purchased in 2005. Other manufacturers and alternatives
were evaluated at that time, and have again been reviewed. Staff feels the Power Secure proposal is the best
alternative for the City.
BUDGET IMPACT
Funds are available in the WSIP project budget.
Backup Power West CCMemoMarO7
u1a1111"Irtaa�c I
AN ORDINANCE WAIVING THE REQUIREMENTS OF FORMAL
COMPETITIVE BIDDING AND APPROVING A CONTRACT WITH POWER
SECURE, INC. FOR THE PURCHASE OF BACK-UP POWER GENERATION
EQUIPMENT AND INSTALLATION SERVICES FOR THE WEST SIDE
WASTEWATER TREATMENT PLANT AND THE HAMESTRING SEWER
LIFT STATION IN THE AMOUNT OF $1,986,786.68; AND APPROVING A
2% CONTINGENCY OF $40,000.00.
WHEREAS, due to the unique and proprietary nature of the switch
times for generators and replacement parts, and the requirement that power
facilities be overseen by a single entity, it is essential that all three back-up
NOW, THEREFORE, BE IT ORDAINED BYE THE
FAYETTEVILLE, ARKANSAS:
Section 1. That the C
constitute an exceptional situal
formal competitive bidding for
with Power Secure7inc'for the
Side Waste v ff1t itm nt Ph
City of
Lift
day of March, 2007.
&tors be of the samtanufacture.
COUNCXL OF THE CITY OF
hereby finds that.s c6 h`cibcumstances
tpiractical, waives requirements of
anon services, and approves a contract
paid installation services for the West
amount of $1,986,786.68.
Arkansas hereby approves a 2% contingency of
ATTEST:
By: r.r By:
DAN COODY, Mayor
SONDRA SMITH, City Clerk/Treasurer
Power Secure Summary Pricing -Fayetteville, AR
Westside WWTP
Hamestring Lift Station
Engineering.
Generator/Enclosure
NexGear Switchgear
Installation
1 Yr Warranty
$945,449.00
$849,906.00
Sound Attenuation to 75 dB
$21,428.00
$21,428.00
5 Yr Warranty
Generator
$6,600.00
$6,600.00
Transformer
$3,450.00
NexGear
$14,450.00
$12,700.00
$991,377.00
$890,634.00
AR State Sales Tax
54778.08
49826.10
Fayetteville Tax
50.00
59.00
Washington Co. Tax
31.25
31.25
Subtotals:
$1,046,236.33
$940,550.35
Grand Total
$1,986,786.68
AGREEMENT
This contract executed this _ day of , 2007, between the City of
Fayetteville, Arkansas and PowerSecure, Inc. In consideration of the mutual covenants
contained herein, the parties agree as follows:
PowerSecure, at its own cost and expense shall furnish all labor, materials,
supplies, machinery, equipment, tools, supervision, bonds, insurance, tax permits,
and all other accessories and services necessary to complete the work described in
the proposal for PowerSecure Interactive Distributed Generation® Services,
Westside Wastewater Treatment Facility, Fayetteville, AR, and the work described
in the proposal for PowerSecure Interactive Distributed Generation® Services,
Hamestring Lift Station, Fayetteville, AR, and in accordance with specifications
attached hereto and made a part hereof under, all included herein as if spelled out
word for word.
2. The City of Fayetteville shall pay PowerSecure based on their proposal in an
amount not to exceed $ 1,986,786.68. Payments will be made after approval and
acceptance of work and submission of invoice. Payments will be made
approximately 30 days after receipt of invoice.
3. The Contract documents which comprise the contract between the City of
Fayetteville and PowerSecure consist of this Contract and the following documents
attached hereto, and made a part hereof:
A. Contract General Provisions
B. Exhibit A PowerSecure Interactive Distributed Generation® Services,
Westside Wastewater Treatment Facility, Fayetteville, AR.
C. Westside 2000kW Drawings.PDF
D. Exhibit B PowerSecure Interactive Distributed Generation® Services,
Hamestring Lift Station, Fayetteville, AR.
E. Hamestring 2000kW Drawings.PDF
4. Freedom of Information Act: City of Fayetteville contracts and documents
prepared while performing city contractual work are subject to the Arkansas
Freedom of Information Act. If a Freedom of Information Act request is presented
to the City of Fayetteville, the contractor will do everything possible to provide the
documents in a prompt and timely manner as prescribed in the Arkansas Freedom
of Information Act (A.C.A. 25-19-101 et. Seq.). Only legally authorized photo
coping costs pursuant to the FOIA may be assessed for this compliance.
WITNESS OUR HANDS THIS DAY OF , 2007.
CITY OF FAYETTEVILLE,
FAYETTEVILLE, ARKANSAS
DAN COODY, Mayor
Agreement Page 1 of 2
AGREEMENT
Attest:
SONDRA SMITH, City Clerk
POWERSECURE, INC.
ml
NAME AND TITLE
Attest:
COMPANY SECRETARY
BUSINESS ADDRESS
Agreement Page 2 of 2
CONTRACT GENERAL PROVISIONS
ARTICLE 1. INVOICING AND TERMS OF PAYMENT
1.1 CITY OF FAYETTEVILLE shall pay POWERSECURE the price specified in paragraph 2 of the
agreement in accordance with the following schedule:
% of Contract
Price
POWERSECURE's Receipt of
15
IDG®S stem Purchase Order
Equipment Ship Date to
30
project site
Substantial Completion of
30
Installation
Final Commissioning/Start-up
25
1.2 Any work beyond the scope of Work described herein requested of and performed by
POWERSECURE ("Additional Work") shall be billed to CITY OF FAYETTEVILLE at mutually
agreed to rates. Prior to performing any Additional Work POWERSECURE will notify CITY OF
FAYETTEVILLE in writing of the Additional Work requested, the reason for such request and the
rates under which the Work will be performed. Changes, modifications, or amendments in scope,
price or fees to this contract shall not be allowed without a prior formal contract amendment
approved by the Mayor and the City Council in advance of the change in scope, cost or fees.
1.3 The prices for the Work, and any Additional Work are inclusive of federal, state, municipal or other
sales or use tax. The invoice will include a line item for sales tax.
1.4 Payment for all Work, Additional Work or other services, if any, shall be due and payable by CITY
OF FAYETTEVILLE within thirty (30) days from CITY OF FAYETTEVILLE's receipt of the invoice
for such Work, Additional Work or other services. POWER SECURE will, upon completion of the
WORK and before final payment is due, furnish CITY OF FAYETTEVILLE with reasonable
evidence that all services, labor, materials, and equipment have been paid in full and agrees to
execute the Lien Waiver attached hereto as Exhibit B.
1.5 If CITY OF FAYETTEVILLE fails to pay any invoice
by the due date, CITY OF
FAYETTEVILLE
shall liable to POWERSECURE for any attorney fees
incurred
in collection of any
amount due and
shall pay interest to POWERSECURE on the amount
past due
in the amount of 1.5% per month.
ARTICLE 2. OBLIGATIONS OF POWER SECURE
2.1 Independent Power Secure
POWER SECURE is an independent CONTRACTOR and will maintain complete control of and
responsibility for its employees, SUBCONTRACTORS, and agents. POWER SECURE shall also be solely
responsible for the means and methods for carrying out the Scope of Services and for the safety of its
employees.
2.2 Lower -Tier Contractors
2.2.1 Within 30 working days after the execution of this AGREEMENT, POWER SECURE will submit to
CITY OF FAYETTEVILLE the names of all Lower -Tier Contractors proposed for the Work. POWER
SECURE will not employ any Lower -Tier Contractors that CITY OF FAYETTEVILLE may object to
as lacking capability to property perform. No changes will be allowed from the approved Lower -Tier
Contractor list without the prior written approval of CITY OF FAYETTEVILLE.
2.2.2 POWER SECURE agrees that it is as fully responsible to CITY OF FAYETTEVILLE for the acts
and omissions of its Lower -Tier Power Secures and of persons either directly or indirectly
employed by them as it is for the acts and omissions of persons directly employed by POWER
SECURE.
2.2.3 Nothing
contained in this CONTRACT
will be construed to create
any contractual relationship
between
any Lower -Tier Contractor and
CITY OF FAYETTEVILLE.
1of9
CONTRACT GENERAL PROVISIONS -
2.2.4 POWER SECURE will provide certification that the Lower -Tier Contractor has the necessary
permits and licenses for the Work proposed.
2.3 Differing Site Conditions
2.3.1 POWER SECURE will promptly, and before such conditions are substantially disturbed, notify CITY
OF FAYETTEVILLE in writing of:
•(a)
Subsurface or latent
physical
conditions at the site differing
materially from those indicated
in this CONTRACT.
•(b) Physical conditions at the site, of an unusual nature, differing materially from those
ordinarily encountered and generally recognized as inherent in the Work.
2.3.2 Upon notice CITY OF FAYETTEVILLE will promptly investigate the conditions. If the conditions do
materially differ and cause an increase or decrease in POWER SECURE's cost of, or the time
required for, performing any part of.the Work, CITY OF FAYETTEVILLE will make an equitable
adjustment and modify this CONTRACT in writing.
2.3.3 No claim of POWER SECURE under this clause will be allowed unless POWER SECURE has
given the notice required above.
2.4 Rejected Material
Any material rejected by CITY OF FAYETTEVILLE because of nonconformity with this CONTRACT will be
removed at once from the vicinity of the Work by POWER SECURE at its own expense.
2.5 Warranty
2.5.1 The Warranty period for equipment will be for a period of five (5) years commencing on the
acceptance date and the Warranty period for services will be for a period of one (1) year
commencing on the acceptance date.
2.5.2 POWERSECURE warrants that:
2.5.2.1 Services will be performed in a professional and workmanlike manner consistent with
industry standards;
2.5.2.2 Its agents, and employees, are qualified and competent to perform the Work and
Additional Work, if any, and that all tools and equipment furnished by POWERSECURE in
its performance of the Work and Additional Work are, and shall be, kept in good working
order.
2.5.2.3 All equipment will be free from defects in material and workmanship and will function in
accordance with the specifications;
2.5:2.4 ' That it has the requisite authority to sell the equipment;
2.5.2.5 There are no pending or threatened claims or causes of action that would have an
adverse effect on POWERSECURE's ability to perform its obligations under this Contract
or upon the City of Fayetteville of Fayetteville's ability to use the equipment;
2.5.2.6 The equipment and services will not infringe on any patent, trademark or copyright;
2.5.3 In the event that CITY OF FAYETTEVILLE or the City of Fayetteville of Fayetteville notifies
POWERSECURE of any defect in materials or workmanship during the applicable warranty period,
POWERSECURE shall correct the defect at its own expense. POWERSECURE shall not be
responsible for any problems or defects attributable to improper operation, maintenance, or use of
the Work or any Additional Work.
2.5.4 THE WARRANTIES
SET FORTH IN THIS CONTRACT
ARE EXCLUSIVE,
AND NO OTHER
WARRANTIES OR
REMEDIES OF ANY KIND, WHETHER STATUTORY,
WRITTEN, ORAL,
EXPRESS, OR
IMPLIED, INCLUDING WITHOUT
LIMITATION WARRANTIES OF
2of9
CONTRACT GENERAL PROVISIONS
INFRINGMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, OR
WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, SHALL APPLY.
TO THE MAXIMUM EXTENT PERMITTED, POWERSECURE HEREBY ASSIGNS TO CITY OF
FAYETTEVILLE ALL EXPRESS AND IMPLIED WARRANTIES FROM THE MANUFACTURER OF
ANY PARTS AND EQUIPMENT INSTALLED BY POWERSECURE AS A PART OF THE WORK
(see Manufacturers warranties for details). Except as provided in Section 2.2, POWERSECURE
shall not be responsible for any work done by others or for any loss, damage, cost or expense
arising out of or resulting from such work, unless authorized by POWERSECURE in advance.
Worker's compensation insurance in the statutory amount and employers liability
insurance in an amount not less than $500,000 for all employees engaged in the Work.
Comprehensive automobile and vehicle liability insurance covering claims for injuries to
members of the public and/or damages to property of others arising from use of motor
vehicles, including onsite and offsite operations, and owned, non -owned, or hired vehicles,
with $1,000,000 combined single limits.
Commercial general liability insurance covering claims for injuries of members of the
public or damage to property of others arising out of any covered act or omission of
POWER SECURE or of any of its employees, agents, or Power Secures, with $5,000,000
per occurrence and in the aggregate.
Any other insurance required by law (e.g., U.S. Longshoreman and Harbors Act coverage,
when harbor operations, offshore operations, or operations on navigable waterways are
involved).
Insurance coverage in Items (b) and (c) above will name CITY OF FAYETTEVILLE
insured. Such insurance will be the primary coverage to CITY OF FAYETTEVILLE.
Before commencing Work under this contract, POWER SECURE will furnish CITY OF
FAYETTEVILLE with certificates of insurance verifying coverage's and additional insureds.
Certificates also will state that the insurance carder will give CITY OF FAYETTEVILLE thirty (30)
days notice of any insurance cancellation or material alteration.
To the maximum extent permitted by law, POWER SECURE will indemnify CITY OF
FAYETTEVILLE and its officers, Contractors, affiliated corporations, and employees from all
claims, damages, losses, and costs, including litigation expenses and attorney's fees, arising out of
or resulting from, or alleged to have resulted from, the performance of the Work, including any act
or omission of POWER SECURE, any Lower -Tier Contractor, anyone directly or indirectly
employed by any of them or anyone for whose acts any of them may be liable. The foregoing will
not apply in the event that the claim, damages, losses, or expenses are caused by the sole
negligence of CITY OF FAYETTEVILLE but will apply to losses caused by the concurrent fault or
negligence of CITY OF FAYETTEVILLE and POWER SECURE.
This indemnification obligation shall not be limited in any way by any limitation on the amount of
compensation, damages or benefits payable under workers compensation, disability benefit or
other employee benefit acts.
POWER SECURE will comply with all applicable codes,
force during the term of this CONTRACT.
CONTRACT GENERAL PROVISIONS
2.9 Permits, Licenses, and Fees
POWER SECURE will obtain and pay for all permits and licenses required by law that are associated with
the Work.
2.10 Safety
POWER SECURE is solely responsible for health and safety of its employees and its SUBCONTRACTORS.
POWER SECURE shall have a health and safety plan fully compliant with health and safety laws and
consistent with CITY OF FAYETTEVILLE health and safety plans. POWER SECURE shall provide all
applicable safety training and equipment required in the health and safety plans. POWER SECURE is
responsible for ensuring that its SUBCONTRACTORS comply with this provision. Visits and observations
made by CITY OF FAYETTEVILLE will not relieve the POWER SECURE of its obligation to conduct
comprehensive safety inspections of the site and provide adequate safety in conformance with this
CONTRACT.
2.11 Protection of Work and Property
2.11.1 POWER SECURE will at all times safely guard and protect from damage the Work and adjacent
property. All loss or damages arising out of the nature of the Work to be done under this
AGREEMENT, including, but not limited to, action of the elements, will be the responsibility of
POWER SECURE.
2.11.2 POWER SECURE will confine its equipment, the storage of materials, and the operation of its
workers to limits shown on the Drawings or indicated by law, ordinances, permits, or directions of
CITY OF FAYETTEVILLE and will not unreasonably encumber the premises with its materials,
2.12 Responsibility of Power Secure to Act in Emergency
In emergencies affecting the safety of persons, work or property at the site and adjacent thereto, POWER
SECURE will act, without previous instructions from CITY OF FAYETTEVILLE, as the situation warrants.
POWER SECURE will notify CITY OF FAYETTEVILLE immediately thereafter. POWER SECURE will
submit the name, address, and phone number of a responsible individual or individuals who will be available
on a 24 -hour basis to handle emergency problems in connection with the Work.
2.13 Equipment, Materials, and Appliances
2.13.1 Unless otherwise stipulated, POWER SECURE will provide and pay for all materials, labor, water,
tools, equipment, heat,- light, power, transportation, telephone, temporary facilities, and other
facilities, and incidentals necessary for the execution and completion of the Work, Unless otherwise
specified, all materials will be new, and both workmanship and materials will be of good quality.
2.13.2 In selecting and/or approving equipment for installation in the project, POWER SECURE assumes
all responsibility for injury or claims resulting from failure of the equipment to comply with applicable
national, state, and local safety codes or requirements, or the safety requirements of a recognized
agency, or POWER SECURE's defective workmanship or materials.
2.14 Schedules and Progress Reports
2.14.1 The POWER SECURE must meet the schedule specified in the Scope of Services. When
requested by CITY OF FAYETTEVILLE and within 10 days prior to the start of the Work, POWER
SECURE will prepare and submit to CITY OF FAYETTEVILLE a progress schedule identifying the
completion of the Work outlined in this CONTRACT, within the deadlines and milestones
established herein.
2.14.2 During the progress of the Work, POWER SECURE will maintain material deliveries and employ
sufficient workers and equipment to accomplish the Work in conformance with the submitted
schedule or deadlines and milestones established.
2.14.3 If requested by CITY OF FAYETTEVILLE, POWER SECURE will forward to CITY OF
FAYETTEVILLE on the 20th day of each month, a summary report of the progress of the various
parts of the Work, stating the existing status, rate of progress, estimated time of completion, and
cause of delay, if any.
4of9
CONTRACT GENERAL PROVISIONS
2.14.4 If the completion of any part of the Work or the delivery of materials is behind the schedule,
POWER SECURE will submit in writing a plan for bringing the Work within the schedule. CITY OF
FAYETTEVILLE may require that one or more of the following courses of action be taken by
POWER SECURE to accelerate the schedule:
(a) Increase the working week to 6 or 7 days
(b) Increase the labor force
(c) Provide and utilize additional equipment
(d) Increase the working day to 10 hours or more.
2.14.5 POWER SECURE will remain on such accelerated work schedule until such time as, in the opinion
of CITY OF FAYETTEVILLE, the degree of completion of the Work complies with the original
schedule. All extra costs of any accelerated work schedule will be borne by POWER SECURE.
2.14.6 Failure to comply with such an accelerated work schedule may result in no further monthly
progress payments until such time as the degree of completion of the Work complies with the
approved schedule or a revised schedule has been approved by CITY OF FAYETTEVILLE.
2.15 Hazardous or Toxic Substances
If the Work under this AGREEMENT involves hazardous or toxic substances, POWER SECURE will strictly
comply with all safety or training requirements promulgated by law or regulation.
2.16 Publicity
POWER SECURE will not disclose the nature of its Work on the PROJECT or engage in any other publicity
public media disclosures with respect to this PROJECT without the prior written consent of CITY OF
FAYETTEVILLE.
2.17 Key Personnel
POWER SECURE will provide qualified personnel to perform its Work. Within 10 days of execution of this
CONTRACT or receipt of a written authorization to proceed, POWER SECURE will submit a list of key
personnel, including a designated project manager or superintendent, if requested by CITY OF
FAYETTEVILLE. POWER SECURE will not change or reassign any of the designated key personnel without
the written approval of CITY OF FAYETTEVILLE.
2.18 Copies of Data
One legible copy each of all notes, field notes, drilling logs, sample classifications, drawings, including
record drawings, prints, plans, and other applicable documents prepared under the terms of this
CONTRACT will be delivered by POWER SECURE to CITY OF FAYETTEVILLE upon completion of the
Work and prior to final payment under 1.3 above.
2.20 Access to Records
POWER SECURE will maintain accounting records, in accordance with generally accepted accounting
principles and practices, to substantiate all invoiced amounts. Said records will be available for examination
by CITY OF FAYETTEVILLE during POWER SECURE's normal business hours for a period of 3 years after
POWER SECURE's final payment to the extent required to verify the costs incurred hereunder.
2.21 Suspension of Work
POWER SECURE will, upon written notice from CITY OF FAYETTEVILLE, suspend, delay or interrupt all or
a part of the Work. In such event, POWER SECURE will resume the Work upon written notice from CITY OF
FAYETTEVILLE, and an extension of time. and/or an equitable adjustment in compensation, if appropriate,
will be mutually agreed upon.
2.22 Performance and Payment Bonds
5of9
CONTRACT GENERAL PROVISIONS
POWER SECURE will furnish Performance and Payment Bonds, each in an amount equal to the total
compensation under this CONTRACT, as security for compliance with the provisions of this AGREEMENT.
All bonds will remain in effect for at least a year after final payment and will be in a form and from a bonding
company acceptable to CITY OF FAYETTEVILLE. All bonds will be filed with the County Clerk's office for
Washington County, Arkansas before beginning work on the project.
ARTICLE 3. OBLIGATIONS OF CITY OF FAYETTEVILLE
3.1 Changes
3.1.1 CITY OF FAYETTEVILLE may, by written order, make changes, revisions, additions, deletions
(collectively hereinafter called "changes") in the Work. POWER SECURE will not proceed with any
proposed changes unless notified to proceed in writing by CITY OF FAYETTEVILLE.
3.1.2 Nothing herein will be construed as relieving POWER SECURE of its obligations to perform the
Work, including without limitation the failure of the parties to agree upon POWER SECURE's
entitlement to, or the amount of, any adjustment in time or compensation.
3.1.3 Any claim by POWER SECURE for an adjustment under this Article must be asserted in writing,
fully supported by factual information, to CITY OF FAYETTEVILLE within 30 days from the date of
receipt by POWER SECURE of the written change authorization from CITY OF FAYETTEVILLE or
within such extension of that 30 -day period as CITY OF FAYETTEVILLE, in its sole discretion, may
grant in writing at POWER SECURE's request prior to expiration of said period.
3.1.4 If the Work is reduced by changes, such action will not constitute a claim for damages based on
loss of anticipated profits.
3.2 Observation of the Work
CITY OF FAYETTEVILLE reserves the right, but not the obligation, to inspect or otherwise evaluate the
Work during the various stages to observe the progress and quality of the Work and to determine, in
general, if the Work is proceeding in accordance with the intent of this CONTRACT. CITY OF
FAYETTEVILLE will not be required to make comprehensive or continuous inspections to check quality or
quantity of the Work. Visits and observations made by CITY OF FAYETTEVILLE will not relieve POWER
SECURE of its obligation to conduct comprehensive inspections of the Work, to furnish materials, to perform
acceptable Work, and to provide adequate safety precautions in conformance with this CONTRACT.
3.3 Limitations of CITY OF FAYETTEVILLE's Responsibilities
CITY OF FAYETTEVILLE will not be responsible for POWER SECURE's means, methods, techniques,
sequences or procedures of the Work, or the safety precautions including compliance with the programs
incident thereto. CITY OF FAYETTEVILLE will not be responsible for POWER SECURE's failure to perform
the Work in accordance with this CONTRACT.
3.4 CITY OF FAYETTEVILLE's Right to do Work
If POWER SECURE, in the opinion of CITY OF FAYETTEVILLE, neglects to prosecute the Work property or
neglects or refuses at its own cost to take up and replace Work rejected by CITY OF FAYETTEVILLE, then
CITY OF FAYETTEVILLE will, without prejudice to any other right which CITY OF FAYETTEVILLE may
have under this CONTRACT, take over that portion of the Work which has been improperly executed and
make good the deficiencies and deduct the cost thereof from the payments then or thereafter due POWER
SECURE.
3.5 Furnished Data
CITY OF FAYETTEVILLE will provide POWER SECURE technical data in its possession, including, but not
limited to, previous reports, maps, surveys, borings, and other information relating to POWER SECURE's
Scope of Work. POWER SECURE may reasonably rely upon the accuracy of the information provided by
CITY OF FAYETTEVILLE. Nothing in this clause relieves POWER SECURE of its responsibility to obtain
any other data required for the execution of the Work.
ARTICLE 4. GENERAL LEGAL PROVISIONS
6of9
CONTRACT GENERAL PROVISIONS
4.1 Proprietary Information
Except as otherwise authorized in writing by CITY OF FAYETTEVILLE, all drawings, specifications,
technical data, and other information furnished to POWER SECURE or developed by POWER SECURE or
others in connection with the Scope of Work are, and will remain, the property of CITY OF FAYETTEVILLE,
and may not be copied or otherwise reproduced or used in any way except in connection with the Scope of
Work, or disclosed to third parties or used in any manner detrimental to the interest of CITY OF
FAYETTEVILLE.
4.2 Claims for Extra Work
In any case where POWER SECURE deems additional compensation will become due, POWER SECURE
will notify CITY OF FAYETTEVILLE, in writing, of its intention to make claim for such compensation before it
begins the Extra Work on which it bases the claim. If such notification is not given or POWER SECURE fails
to keep strict account of actual cost, then POWER SECURE hereby agrees to waive the claim for such
additional compensation. Such notice by POWER SECURE, and the fact that CITY OF FAYETTEVILLE has
kept account of the cost, will not be construed as proving the validity of the claim. Claims for additional
compensation will be made in detail and submitted, in writing, to CITY OF FAYETTEVILLE within 10 days
following completion of that portion of the Extra Work for which POWER SECURE bases its claim. In case
the claim is found to be just, it will be allowed and paid for as provided in this CONTRACT.
4.3 Assignment
Neither party shall have the power to or will assign any of the duties or rights or any claim arising out of or
related to this CONTRACT , whether arising in tort, contract or otherwise, without the written consent of the
other party. Any unauthorized assignment is void and unenforceable. These conditions and the entire
CONTRACT are binding on the heirs, successors, and assigns of the parties hereto.
4.4 Termination
4.4.1 Termination for Convenience
All or part of this CONTRACT may be terminated by CITY OF FAYETTEVILLE for its convenience.
In such event, POWER SECURE will be entitled to compensation for Work competently performed
up to the date of termination and reasonable termination expenses as determined within the
discretion of CITY OF FAYETTEVILLE. POWER SECURE will not be entitled to compensation or
profit on Work not performed.
4.4.2 Termination for Default
CITY OF FAYETTEVILLE may, by written notice, terminate the whole or any part of this
CONTRACT for default in the event that POWER SECURE fails to perform any of the provisions of
this CONTRACT, or fails to make progress as to endanger performance of this CONTRACT in
accordance with its terms, or, in the opinion of CITY OF FAYETTEVILLE, becomes financially or
legally incapable of completing the Work and does not correct such to CITY OF FAYETTEVILLE's
reasonable satisfaction within a period of 7 days after receipt of notice from CITY OF
FAYETTEVILLE specifying such failure. If, after notice of termination, it is determined for any
reason that POWER SECURE was not in default or that the default was excusable, the rights and
obligations of the parties will be the same as if the notice of termination had been issued pursuant
to "TERMINATION FOR CONVENIENCE." In the event of termination for default, POWER
SECURE will not be entitled to termination expenses.
4.4.3 Regardless of the cause of termination, the POWER SECURE shall deliver to CITY OF
FAYETTEVILLE legible copies of all completed or partially completed work products and
instruments of service and all materials and equipment previously paid for by CITY OF
FAYETTEVILLE.
4.4.4 The rights and remedies of CITY OF FAYETTEVILLE provided in this Article will not be exclusive
and are in addition to any other rights and remedies provided by law or equity or under this
CONTRACT.
4.5 Time of the Essence
7of9
CONTRACT GENERAL PROVISIONS
Time is of the Essence with respect to POWER SECURE's performance of the Work.
4.6 Delays and Extension of Time
4.6.1 If POWER SECURE intends to file a claim for extension of time for a delay, it will, within 48 hours
of the occurrence, give written notice of claim to CITY OF FAYETTEVILLE stating the circum-
stances, the possible extension involved, and the reasons for the claim. Within 7 days after the
cause of delay has been remedied, POWER SECURE will give written notice to CITY OF
FAYETTEVILLE of the actual time extension requested.
4.6.2 Within 15 days after POWER SECURE submits to CITY OF FAYETTEVILLE a specific written
request for an extension of time, CITY OF FAYETTEVILLE will make the final decision on the
request for extension of time.
4.6.3 No extension of time will be considered for weather conditions normal to the area in which the Work
is being performed. Unusual weather conditions, if determined by CITY OF FAYETTEVILLE to be
of a severity that would stop all progress of the Work may be considered as cause for an extension
of completion time.
4.6.4 Delays in delivery of equipment or material purchased by POWER SECURE or its
SUBCONTRACTORS (including CITY OF FAYETTEVILLE-selected equipment) or failure of
POWER SECURE or its SUBCONTRACTORS to perform will not be considered as a just cause for
delay. POWER SECURE will be fully responsible for the timely ordering, scheduling, expediting,
delivery, and installation of all equipment and materials.
4.7 Liquidated Damages
Should POWER SECURE fail to complete the Work or any part thereof within any time agreed upon in this
CONTRACT, with any authorized extensions, POWER SECURE will reimburse CITY OF FAYETTEVILLE
for the additional expense and damage for each calendar day, Sundays and legal holidays excluded, that
the Work remains incomplete after the CONTRACT completion date. It is agreed that the amount of such
additional expense and damage incurred by reason of failure to complete the Work is that stipulated in this
CONTRACT. The said amount is hereby agreed upon as a reasonable estimate of the damages that will
probably ensue or be incurred by the CITY OF FAYETTEVILLE in the event that POWER SECURE fails to
meet the completion date. It is expressly understood and agreed that this amount is not to be considered in
the nature of a penalty, but as liquidated damages that have accrued against POWER SECURE. CITY OF
FAYETTEVILLE will have the right to deduct such damages from any amount due or that may become due
POWER SECURE, or the amount of such damages will be due and collectible from POWER SECURE.
4.8 Waivers
No waiver by either party of any default by the other party in the performance of any provision of this
CONTRACT will operate as or be construed as a waiver of any future default whether like or different in
character.
4.9 Jurisdiction
The law of the state of Arkansas shall govern the validity of this CONTRACT, its interpretation and
performance, and any other claims related to it.
4.10 Severability and Survival
If any of the provisions contained in this CONTRACT are held invalid, illegal, or unenforceable, the
enforceability of the other remaining provisions shall not be affected or impaired thereby. Limitations of
liability, indemnities, and other express representations shall survive termination of this CONTRACT for any
cause.
4.11 Force Majeure
Neither party to this CONTRACT will be liable to the other party for delays in performing the Work, or for the
direct or indirect cost resulting from such delays, that may result from acts of God, acts of governmental
authorities, extraordinary weather conditions or other natural catastrophes, or any other cause beyond the
8of9
CONTRACT GENERAL PROVISIONS
reasonable control or contemplation of either party. Each party will take reasonable steps to mitigate the
impact of any Force Majeure.
4.12 Authorization to Proceed
Execution of this CONTRACT by CITY OF FAYETTEVILLE will be authorization for POWER SECURE to
proceed with the Work unless otherwise provided for in this CONTRACT.
4.13 No Third -Party Beneficiaries
This AGREEMENT gives no rights or benefits to anyone other than POWER SECURE and CITY OF
FAYETTEVILLE, and has no third -party beneficiaries.
4.14 Work
The word 'Work" will include all material, labor, tools, and all appliances, machinery, and transportation,
necessary to perform and complete the Scope of Work, and such additional items not specifically indicated
or described that can be reasonably inferred as belonging to the item described or indicated and as required
by good practice to provide a complete and satisfactory system. As used herein, "provide" will be
understood to mean "furnish and install, complete in -place."
9of9
Exhibit A
Interactive Distributed Generation® Services
Westside Wastewater Treatment Facility
Fayetteville, AR
SCOPE OF POWERSECURE SERVICES
I. General
ii
Taveuy le
e
Confidential and Proprietary
A. PowerSecure (PS) will provide 2000kW Standby; 1825kW Prime; 480Y/277V
Interactive Distributed Generation® (IDG®) System to serve the City of Fayetteville.
B. PS will provide a 15kV pad mounted Main, power transformer, instrument
transformers, power/control wiring and auxiliary equipment necessary for
interconnection of the IDG® System at the customer's site per this proposal.
C. PS will deliver the IDG® System project, as described in this Exhibit on a complete
turnkey basis including:
1. Engineering/Design
2. Generation Equipment
3. NexGear® Advanced Paralleling Switchgear
4. IDG® System Installation
5. Equipment and Installation Warranties
6. In-service Training
D. PS will deliver the project in the following estimated timeframe:
Milestone
Agreement Signing
Receipt of IDG® System Submittal
Equipment Shipping Date to Site
Substantial Completion of Installation
Final Commissioning/Start-up
Completion (Week No)
0
4
32
34
36
E. Refer to the enclosed drawings Westside 2000kw Drawings.pdf which illustrate the
proposed IDG® System.
F. Customer pays for all fuel including initial fill.
II. Engineering/Design Services
A. PS will provide all engineering and design services necessary to complete
construction documents for this project in accordance with the State of Arkansas.
B. PS will prepare construction documents signed and sealed by a Registered
Professional Engineer of Record in Arkansas.
III. Generation System
PageA-1 - 1 of 3
Secure
Exhibit A
Interactive Distributed Generation® Services
Westside Wastewater Treatment Facility
Fayetteville, AR.
A. The Generation System will include:
Faye'iev'le
Confidential and Proprietary
1. Engine Generator Set rated at 480Y/277V; 2000kW (Standby); 1825kW
(Prime), .8pf; 2500KVA.
2. Permanent Magnet Generator
3. Electronic Engine Governor
4. Charging Alternator 24V
5. Lead Acid Batteries, Rack and Battery Charger
6. Engine Cooling System
7. Exhaust System with Silencer
8. Double Wall (UL1 42), 3000 Gallon Sub -base Tank with Level Sensors.
9. Weather Resistant Enclosure
10. Lubricating Oil and Antifreeze — Initial fill
11. Sound Attenuation to 75db at 23 ft included
IV. Bi-Fuel System
Each CAT 3516B Engine Generator will be equipped with a Series IV -B PowerSecure
Standard Bi-Fuel Conversion System. Each Bi-Fuel System shall include the following
items:
A. Gas Train Kit
B. Control System Accessory Kit
V. NexGear® Advanced Paralleling Switchgear
A. We will provide a NexGear® Advanced Paralleling Switchgear (APS) to provide
the following Modes of Operation:
1. Load Curtailment: Short-term Synchronized Operation with Ozarks Electric
Cooperative Corporation (OECC) followed by a Make -Before -Break
Separation from OECC..
2. Standby. Mode: Automatic, Dead Bus, Block Load Transfer of a maximum of
2000kW during OECC outages.
B. Each APS will include all necessary functions to prevent connection or parallel
operation of the IDG® System with OECC unless the service voltage and
frequency are of normal magnitude.
Page A-2of3
Sccurc
Exhibit A
Interactive Distributed Generation® Services
Westside Wastewater Treatment Facility
Fayetteville, AR
ye iey le
Confidential and Proprietary
C. We will meet OECC published interconnection requirements.
VI. IDG® System Installation
A. PS will combine our in-house IDG® Project Management staff with a reputable
local licensed electrical contractor or utilize our in house licensed electrical
construction group to provide a fully coordinated high quality installation.
B. The PS Project Manager will serve as the single point interface with the City of
Fayetteville and OECC during construction/start-up and will be present on -site for
all critical activities and key construction milestones.
VII. Equipment and Installation Warranties
A. The entire system will be Warranted for 5 Years.
VIII. In -Service Training
PS will provide onsite in-service training on the operation and maintenance of the
IDG® System.
Page A-3of3
Exhibit B
Interactive Distributed Generation® Services
Hamestring Lift Station
Fayetteville, AR
SCOPE OF POWERSECURE SERVICES
General
laye ieyi,le
Confidential and Proprietary
A. PowerSecure (PS) will provide 2000kW Standby; 1825kW Prime; 480Y/277V
Interactive Distributed Generation® (IDG®) System to serve the City of Fayetteville.
B. PS will provide instrument transformers, power/control wiring and auxiliary
equipment necessary for interconnection of the IDG® System at the customer's site
per this proposal.
C. PS will deliver the IDG® System project, as described in this Exhibit on a complete
turnkey basis including:
1. Engineering/Design
2. Generation Equipment
3. NexGear® Advanced Paralleling Switchgear integrated into MSB
4. IDG® System Installation
5. Equipment and Installation Warranties
6. In-service Training
D. PS will deliver the project in the following estimated timeframe:
Milestone
Agreement Signing
Receipt of IDG® System Submittal
Equipment Shipping Date to Site
Substantial Completion of Installation
Final Commissioning/Start-up
Completion (Week No)
0
4
32
34
36
E. Refer to the enclosed drawing Hamestring 2000kw Drawing.pdf which illustrates the
proposed IDG® System and equipment placement.
F. Customer pays for all fuel including initial fill.
II. Engineering/Design Services
A. PS will provide all engineering and design services necessary to complete
construction documents for this project in accordance with the State of Arkansas.
B. PS will prepare construction documents signed and sealed by a Registered
Professional Engineer of Record in Arkansas.
Ill. Generation System
PageB-lof3
Exhibit B
Interactive Distributed Generation® Services
Hamestririg Lift Station
Fayetteville, AR,
A. The Generation System will include:
Fayetlev'le
Confidential and Proprietary
Engine Generator Set rated at 480Y/277V; 2000kW (Standby); 1825kW
(Prime), .8pf; 2500KVA.
2. Permanent Magnet Generator
3. Electronic Engine Governor
4. Charging Alternator 24V
5. Lead Acid Batteries, Rack and Battery Charger
6. Engine Cooling System
7. Exhaust System with Silencer
8. Double Wall (UL142), 3000 Gallon Sub -base Tank with Level Sensors.
9. Weather Resistant Enclosure
10.
Lubricating Oil and
Antifreeze
— Initial fill
11.
Sound Attenuation
to 75db at
23 ft included
IV. Bi-Fuel System
Each CAT 3516B Engine Generator will be equipped with a Series IV -B PowerSecure
Standard Bi-Fuel Conversion System. Each Bi-Fuel System shall include the following
items:
A. Gas Train Kit
B. Control System Accessory Kit
V. NexGear® Advanced Paralleling Switchgear
A. We will provide a NexGear® Advanced Paralleling Switchgear (APS) to provide
the following Modes of Operation:
Load Curtailment: Short-term Synchronized Operation with Ozarks Electric
Cooperative Corporation (OECC) followed by a Make -Before -Break
Separation from OECC..
2. Standby Mode: Automatic, Dead Bus, Block Load Transfer of a maximum of
2000kW during OECC outages.
B. Each APS will include all necessary functions to prevent connection or parallel
operation of the IDG® System with OECC unless the service voltage and
frequency are of normal magnitude.
Page B-2of3
1U+er
Exhibit B FayeikvlInteractive Distributed Generation® ServicesKANSAS
Hamestring Lift Station
Fayetteville, AR Confidential and Proprietary
C. We will meet OECC published interconnection requirements.
VI. IDG® System Installation
A. PS will combine our in-house IDG® Project Management staff with a reputable
local licensed electrical contractor or utilize our in house licensed electrical
construction group to provide a fully coordinated high quality installation.
B. The PS Project Manager will serve as the single point interface with the City of
Fayetteville and OECC during construction/start-up and will be present on -site for
all critical activities and key construction milestones.
VII. Equipment and Installation Warranties
A. The entire system will be Warranted for 5 Years.
VIII. In -Service Training
PS will provide onsite in-service training on the operation and maintenance of the
IDG® System.
Page B-3of3
0
o
t0
V
O)
N
a
w
N
+
0
no
0
m-, m
.m+ p
p
m
m
ai
m
9- m m
'0
m
PC a
m
m
a
m J
m
w
pJt N
S
m
!f
c.
O
d
y
F
O
J
+0
m
2
v
v
to
o
V7
Co
0
=
J
m
0
w
m
6
�
»
oIn
o
O
w
o
W
O
m
m
w
o
+
V
Z
w
'
m
3
N
C
C
n N
r
o
°
m
n
o
r:
2<
C
m
o0
C 0
0
j
T
O
-
a
d d m
J
O
m
a
1O ID
m CD
f O
m
n
a
a
a
u
a
w
-
a
w
m
m
N
O
O
O
o
O
p
O
o
o
O
o
m
n
O
a
G
G
O
O
G
G
O
O
V
()
0
O
O
O
O
O
O
O
O
O
O
C
N
'n
m
o
v
O
�
m n
o
m
c
y
�
w
0
m
m
o
a
c
0
m
]
N Z
s
m
z
w m
u
c
43
0
3
c
m
0
+
g
8
o
m
c
o d c
K
0
m m
m
3
O
% 0
m
y.
N
0
mS
C'
n
]
O1
O'
_
J
m
3
0
a
J
f0
0
c
0
03
+
'O
m
W
V
O
N
V
o
-
o
m
t.2
u
e
m
_
Z
Z
O
O
+
m c
x
m
w
j
0
o
N
N O
O
m
D
A
ik
•m
OOo W
<
0
n
T
N
Z
CD
o
1
#
1
(3.27.07) Clarice Pearman - Ord. 4995 Page 1
From: Clarice Pearman
To: Jurgens, David
Date: 3.27.07 4:14 PM
Subject: Ord. 4995
Attachments: 4995 Power Secure Inc..pdf
CC: Audit; Vice, Peggy
David:
Attached is a copy of the ordinance passed by City Council, March 20, 2007 waiving the competitive bidding process for
Power Secure Inc. I will forward to you via interoffice mail two of three of the original agreement and forward your
requisition to Purchasing. Please let me know if anything else Is needed for this item. Have a good afternoon.
Clarice
Clarice Buffalohead-Pearman, CMC
City Clerk/Treasurer Division
113 West Mountain
Fayetteville, AR 72701
479-575-8309
cpearman@ci.fayetteville.ar.us
City of Fayetteville
Staff Review Form
City Council Agenda Items
or
Contracts
N/A- Mayor's Approval
City Council Meeting Date
i96
1
David Jurgens Water/Wastewater Water/Wastewater
Submitted By Division Department
Action Required:
Approval of Addendum 1 to the contract with Power Secure, Inc., reducing the contract amount by $42,972.
($42,972.00)
Cost of this request
4480.9480.5801.00
Account Number
02133.0399
Project Number
Budgeted Item
City Attorney
$ 2,026,786.68
Category I Project Budget
$ 1,986, 786.68
Funds Used to Date
$ 40,000.00
Remaining Balance
Budget Adjustment Attached EJ
/V4i d
iiiii
Wastewater System Imp Project
Program Category / Project Name
Water and Wastewater
Program / Project Category Name
Water/Sewer
Fund Name
Previous Ordinance or Resolution # 4995
2-5t'o1
Date Original Contract Date: 3/20/2007
Original Contract Number: 1082
Date
Finance and
Internal Service Director
Date
Date
Received in City Clerk's Office
4025-og
Received in Mayor's Office
T�ettevi1e Mayor's Approval
ARKANSAS
CITY COUNCIL AGENDA MEMO
To: Mayor Dan Coody
Fayetteville Sewer Committee
From: David Jurgens, Water and Wastewater Director
Date: April 17, 2008
Subject: Approval of Addendum 1 to the contract with Power Secure, Inc., reducing the contract amount
by $42,972
RECOMMENDATION
City Administration recommend approval Addendum 1 to the contract with Power Secure, Inc., to reduce
the contract priced for the purchase and installation of backup power generation equipment for the West
Side Wastewater Treatment Plant and the Hamestring Sewer Lift Station, WSIP subprojects WP -2 and
WL-6, by $42,972.00.
BACKGROUND
PowerSecure is providing backup power generators for the West Side Wastewater Treatment Plant and
the Hamestring Sewer Lift Station under this contract, as required to meet the City's National Pollution
Prevention Discharge (NPDES) permit. These generators will be used to provide emergency power when
such is not available from the distribution system, and to reduce our peak power demand in the summer,
reducing our overall rate we pay for electricity.
Installation is nearing completion. All hardware is in; the systems will be placed on line in May, 2008.
DISCUSSION
This cost reduction change order is a result of the entire WSIP team's efforts to reduce costs wherever
possible. In this case, Brasfield & Gorrie identified that it would be less expensive and more efficient for
them to construct the electrical pads on which the generators are placed rather than for PowerSecure to
hire a subcontractor to execute the work. Thus, this work has been moved from the PowerSecure scope of
work to the Brasfield & Gorrie scope of work at both locations. The net savings to the City is over
$15,000. Detailed deductions are shown below.
$ 30,000 for the concrete pad and conduits at the West Side WWTP
11,760 for the concrete pad at the Hamestring lift station
1212 for add-ons for the concrete pad at the Hamestring lift station
Total: $ 42,972
BUDGET IMPACT
The $42,972.00 shall be returned to the WSIP project budget.
Backup Power Watt Amend I CCMcmoApAB
' t �� .v. . nv.Y l: v5!f .i v C.:.♦
AMENDMENT TO AGREEMENT
The Agreement (hereinafter "Agreement") dated March 20, 2007 between the City of
Fayetteville and PowerSecure, Inc. (hereinafter "PowerSecure") shall be amended and
modified by this amendment (hereinafter "Amendment") as follows:
WHEREAS:
Under the Agreement, PowerSecure is to provide backup power generation
equipment and services in connection with City of Fayetteville Wastewater System
Improvement Project at the West Side Wastewater Treatment Plant and the
Hamestring Sewer Lift Station.
City of Fayetteville desires to amend said Agreement to adjust contract price of
agreement.
PowerSecure is willing to amend the Agreement for said contract price adjustment
as agreed upon by the parties.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, City of
Fayetteville and PowerSecure do hereby agree to amend the Agreement as follows:
The Agreement and the terms and conditions therein shall remainunchanged except
for the sections listed below:
"Compensation": Decreased as follows:
$ 30,000 for the concrete pad and conduits at the West Side WWTP
11,760 for the concrete pad at the Hamestring lift station
1,212 for add-ons for the concrete pad at the Hamestring lift station
Total: $ 42,972
The total payment is changed to not exceed $1,943,814.68..
No cancellation, modification, amendment, deletion, addition, waiver or other
change shall have effect unless specifically set forth in writing signed by the party
to be bound thereby.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the
day and year written below:
P0WERSECURE, INC.
"OWNER'
Jrt
Name: 4r`k1w 14 CA
Title: P GoYI Ira IA -e/
Date: V-21-8
fl
Name: b
Title:
Date: I/.&
//
PowerSecureGen Addendum 19Apr08
PageIofI
Clarice Pearman - Power Secure
From: Clarice Pearman
To: Jurgens, David
Date: 4.29.08 2:49 PM
Subject: Power Secure
CC: Audit
Attachments: Audit
David:
Attached is a copy of the above agreement addendum. This will also confirm that I have given to you two of the three
original signed agreements. Please let me know if there is anything else needed for this item. Have a good day.
Thanks.
Clarice
file://C:\Documents%20and%20Settings\cpearman.000\Local%20Settings\Temp\XPgrpwise\48173 58DFA... 4.29.08
Coverage
PowerSecure warrants its NexGear Switchgear against
defective parts and workmanship for a period of "X"
(described below) months from the date of start-up. It the
purchaser notifies PowerSecure of any failures to conform to
this warranty within the warranty period. PowerSecure will
correct the nonconformity at its option by repairing or
replacing the defect part(s).
Duration
The warranty period is sixty months from the warranty start
date. For these purposes, date of start-up is defined as the
date when the manufacturer's authorized service engineer
starts the equipment and certifies that is in proper working
order per specifications. Customer acceptance does not alter
this date. Start-up cannot exceed one year from the shipment
date. When no start-up service is provided by PowerSecure,
the warranty period begins on the day that the equipment
ships from the PowerSecure factory.
Specific Exclusions
PowerSecure will warranty items per the agreement for the
extended amount of time with the following exceptions but not
limited to. Protective Relays and Electronic Trip Units 3 years
maximum, PLC's and Touch Screens 2 years maximum.
PowerSecure will not warranty obsolete or discontinued items
and reserves the right for equivalent replacement at our
discretion with new or refurbished equipment. Excessive
use, negligence, and consumable items are not covered by
warranty.
Owner's Responsibility
Product must be kept free of debris, foreign matter, and
excess moisture. All service, repairs, and/or modifications
must be performed by an authorized PowerSecure service
technician. Preventative maintenance must be performed on
all applicable components according industry standards and
the instructions supplied in the owner's manual. The costs of
this maintenance are the owners responsibility unless
otherwise contracted to PowerSecure under a separate
agreement. Failure to follow this procedure will void the
balance of the warranty.
Standard Warranty Limitations
PowerSecure will not be liable for damage or accidents
caused by improper storage, improper application, improper
installation or without the protection normally accepted by the
industry, failure of some other part of the system causing the
product to fail, shipping damage, abuse, mishandling,
vandalism, alteration, improper maintenance' (in accordance
with industry standards and the instructions supplied In the
owners manual) and all other forces outside the
PowerSecure factory.
All service
requests conforming
to this
warranty must be
authorized
by the PowerSecure
factory
service department
NexGear Switchgear
Exfesed waraf
Selling Policy PS4000-` Applies
and must be performed by Sr authorized PowerSecure
service technician. Warranty service Is dispatched out of the
PowerSecure factory service department in Wake Forest NC
by calling 1-866.-OG-SKILL. Unauthorized service will void
the balance of the warranty.
Premium labor (overtimetholiday/weekend) is provided under
this warranty only at the discretion of PowerSecure. This
warranty may not be transferred to a subsequent owner
without the written approval of PowerSecure.
This warranty does not cover special, incidental or
consequential damages including but not limited to rental
equipment and/or any expenses, losses, or costs due to down
time of product.
PowerSecure coverage does not include failure caused by
flood, water, weather, freezing, heat, earthquake, fire, wind,
storm, lightning, volcanic eruption, dust, war, sabotage,
vandals, riot, theft, explosion, or any other act(s) by nature or
man.
Any implied or statutory warranties, including any warranty of
merchantability or fitness of purchase, is expressly limited to
the duration of this warranty.
This warranty is only valid in the United States.
There are no other warranties, expressed or implied, beyond
what is stated herein. The foregoing warranty is in lieu of any
other representations Cr warranties, expressed or implied,
which are hereby expressly disclaimed and waived by the
buyer. Any modification of the warranties set forth herein
must be in writing and signed by a duty -authorized officer of
PowerSecure.
This warranty gives the owner specific legal rights. The
owner may also have other rights which vary from state to
state. Some states do not allow limitations on how long an
implied warranty lasts, or the exclusion or limitation of
incidental or consequential damages, therefore some of the
above limitations may not apply.
NexGear Order Number: NC -1792
Site Address: 15 South Broyles Avenue
Fayetteville, AR 72704
Warranty Start Date: April 17, 2008
"X" Months Warranty: 60 months
Authorized: K— G— Lc_
1609 Heritage Commerce CL Page 1 of 1 Form PSW001-X
Wake Forest, NC 27587 11,17/2008
I -866 -DG -SK ILL
www.powersecure.com
4€
Page 1 of 1
Peggy Bell - RE: NexGear extended warranties
From:
To:
Date: 11/18/2008 10:44 AM
Subject: RE: NexGear extended warranties
CC:
Thanks, John!
Duyen.
From: John Keith [mailto:JKeith@powersecure.com]
Sent: Tuesday, November 18, 2008 10:41 AM
To: Tran, Duyen/FAY
Cc: Luther, Tim/FAY
Subject: RE: NexGear extended warranties
Duyen —
The warranties were signed by Brian Kisner who is Sr. Vice President of our NexGear product line.
Please let me know if you need any additional information. I'm sorry this has taken so many iterations
back and forth. Thanks again both you and Tim's help!
- John
John D. Keith, C.E.M.
Vice President
PowerSecure International (NASDAQ: POWR)
Cell: (713) 992-4003
Fax: (419) 831-4184
From: Duyen.Tran@ch2m.com [mailto:Duyen.Tran@ch2m.com]
Sent: Monday, November 17, 2008 3:27 PM
To: John Keith
Cc: Tim.Luther@CH2M.com
Subject: NexGear extended warranties
Hi John,
Can you provide the name and title of the one who signed the NexGear warranties? Thanks! Duyen
Dupi Tran
Pugaz Manager II
CN2M HILL QW
1400 N. F= H,nerRd
Falaeulii AR 72701
479.443.3292
479.443,5613 (fax)
file://C:\Documents and Settings\pbe1l.000\Local Settings\Temp\XPgrpwise\49229C7FF... 11/18/2008
ti
Coverage
PowerSecure warrants its NexGear Switchgear against
defective parts and workmanship for a period of -X"
(described below) months from the date of stab -up, it the
purchaser notifies PowerSecure of any failures to conform to
this warranty within the warranty period, PowerSecure will
correct the nonconformity at its option by repairing or
replacing the defect part(s).
Duration
The warranty period is sixty months from the warranty start
date. For these purposes, date of start-up is defined as the
date when the manufacturer's authorized service engineer
starts the equipment and certifies that is in proper working
order per specifications. Customer acceptance does not alter
this date. Start-up cannot exceed one year from the shipment
date. When no start-up service is provided by PowerSecure,
the warranty period begins on the day that the equipment
ships from the PowerSecure factory.
Specific Exclusions
PowerSecure will warranty items per the agreement for the
extended amount of time with the following exceptions but not
limited to. Protective Relays and Electronic Trip Units 3 years
maximum, PLC's and Touch Screens 2 years maximum.
PowerSecure will not warranty obsolete or discontinued items
and reserves the right for equivalent replacement at our
discretion with new or refurbished equipment. Excessive
use, negligence, and consumable items are not covered by
warranty.
Owner's Responsibili
Product must be kept free of debris, foreign matter, and
excess moisture. All service, repairs, and/or modifications
must be performed by an authorized PowerSecure service
technician. Preventative maintenance must be performed on
all applicable components according Industry standards and
the Instructions supplied in the owner's manual. The costs of
this maintenance are the owners responsibility unless
otherwise contracted to PowerSecure under a separate
agreement. Failure to follow this procedure will void the
balance of the warranty.
Standard Warranty Limitations
PowerSecure will not be liable for damage or accidents
caused by improper storage, improper application, improper
installation or without the protection normally accepted by the
industry, failure of some other part of the system causing the
product to fail, shipping damage, abuse, mishandling,
vandalism, alteration, improper maintenance (in accordance
with industry standards and the instructions supplied in the
owner's manual) and all other forces outside the
PowerSecure factory.
All servIce requests conforming to this warranty must be
authorized by the PowerSecure factory service department
1609 Heritage Commerce Cl.
Wake Forest, NC 27587
1 -866 -DG -SKILL
www.powersecure. corn
as 4%\5
i exGear Swift Jig ear
ExtendedM.a.rranty
Selling Policy PS1000f Applies
and must be performed by an authorized PowerSecure
service technician. Warranty service is dispatched out of the
PowerSecure factory service department in Wake Forest NC
by calling 1-866-DGSKILL. Unauthorized service will void
the balance of the warranty.
Premium labor (overtime/holiday/weekend) is provided under
this warranty only at the discretion of PowerSecure. This
warranty may not be transferred to a subsequent owner
without the written approval of PowerSecure.
This warranty does not cover special, Incidental or
consequential damages including but not limited to rental
equipment and/or any expenses, losses, or costs due to down
time of product.
PowerSecure coverage does not include failure caused by
flood, water, weather, freezing, heat, earthquake, fire, wind,
storm, lightning, volcanic eruption, dust, war, sabotage,
vandals, riot, theft, explosion, or any other act(s) by nature or
man.
Any implied or statutory warranties, including any warranty of
merchantability or fitness of purchase, is expressly limited to
the duration of this warranty.
This warranty is only valid in the United States.
There are no other warranties, expressed or implied, beyond
what is stated herein. The foregoing warranty is In lieu of any
other representations or warranties, expressed or implied,
which are hereby expressly disclaimed and waived by the
buyer. Any modification of the warranties set forth herein
must be in writing and signed by a duly -authorized officer of
PowerSecure.
This warranty gives the owner specific legal rights. The
owner may also have other rights which vary from state to
state. Some states do not allow limitations on how long an
implied warranty lasts, or the exclusion or limitation of
incidental or consequential damages, therefore some of the
above limitations may not apply.
NexGear Order Number: NG-1786
Site Address: 2065 North Sunshine Road
Fayetteville, AR. 72704
Warranty Start Date: April 16, 2008
"X" Months Warranty: 61) months
Authorized: B- 't_—
Page 1 of I
Form PSW00I-X
11/17/2008
Page 1 of 1
Peggy Bell - RE: NexGear extended warranties
From:
To:
Date: 11/18/2008 10:44 AM
Subject: RE: NexGear extended warranties
CC:
Thanks, John!
Duyen.
From: John Keith [mailto:JKeith@powersecure.com]
Sent: Tuesday, November 18, 2008 10:41 AM
To: Tran, Duyen/FAY
Cc: Luther, Tim/FAY
Subject: RE: NexGear extended warranties
Duyen —
The warranties were signed by Brian Kisner who is Sr. Vice President of our NexGear product line.
Please let me know if you need any additional information. I'm sorry this has taken so many iterations
back and forth. Thanks again both you and Tim's help!
-John
John D. Keith, C.E.M.
Vice President
PowerSecure International (NASDAQ: POWR)
Cell: (713) 992-4003
Fax: (419) 831-4184
From: Duyen.Tran@ch2m.com [mailto:Duyen.Tran@ch2m.com]
Sent: Monday, November 17, 2008 3:27 PM
To: John Keith
Cc: Tim.Luther@CH2M.com
Subject: NexGear extended warranties
Hi John,
Can you provide the name and title of the one who signed the NexGear warranties? Thanks! Duyen.
Di9en Tran
Th1? Mamgerl7
CH2M HILL OMI
1400 N. Fac HwwRd
Fa}aterille AR 72701
479.443.3292
479.443.5613 (fax)
;file://C:\Documents and Settings\pbell.000\Local Settings\Temp\XPgrpwise\49229C7FF... 11/18/2008