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2010R05-McKinstry Essention RESOLUTION NO. 10-R-05 A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AUTHORIZING A DIRECTED ENERGY STUDY LETTER AGREEMENT WITH MCHINSTRY ESSENTION, INC., AND OTHER MATTERS IN CONNECTION THEREWITH WHEREAS, the City Council has determined that it is in the best interest of the City to contract with McKinstry Essention, Inc. ("McKinstry") pursuant to the Directed Energy Study letter agreement attached hereto as Exhibit A (the "Agreement") under which McKinstry will conduct a directed energy study for the City of Schertz and will develop a comprehensive energy services proposal for selected initiatives. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS THAT: Section 1. The City Council hereby authorizes the City Manager to execute and deliver the Agreement with McKinstry in substantially the form set forth on Exhibit A. Section 2. The recitals contained in the preamble hereof are hereby found to be true, and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a part of the judgment and findings of the City Council. Section 3. All resolutions, or parts thereof, which are in conflict or inconsistent with any provision of this Resolution are hereby repealed to the extent of such conflict, and the provisions of this Resolution shall be and remain controlling as to the matters resolved herein. Section 4. This Resolution shall be construed and enforced in accordance with the laws of the State of Texas and the United States of America. Section 5. If any provision of this Resolution or the application thereof to any person or circumstance shall be held to be invalid, the remainder of this Resolution and the application of such provision to other persons and circumstances shall nevertheless be valid, and the City Council hereby declares that this Resolution would have been enacted without such invalid provision. Section 6. It is officially found, determined, and declared that the meeting at which this Resolution is adopted was open to the public and public notice of the time, place, and subject matter of the public business to be considered at such meeting, including this Resolution, was given, all as required by Chapter 551, Texas Government Code, as amended. Section 7. This Resolution shall be in force and effect from and after its final passage, and it is so resolved. 50291003.1 EXHIBIT A DIRECTED ENERGY STUDY LETTER AGREEMENT 50291003.1 A-1 Directed Energy Study Proposal January 26, 2010 The City of Schertz 1400 Schertz Parkway Schertz, Texas 78154 Attention: Don Taylor, City Manager Subject: DIRECTED ENERGY STUDY -CITY OF SCHERTZ Dear Customer: The City of Schertz (the ~~City'~ is interested in improving the infrastructure of its existing facilities through aperformance-based contract with McKinstry Essention, Inc. (~~McKinstry'~. This letter agreement will provide the guidelines for which McKinstry will provide the following tasks: 1. Conduct a Directed Energy Study for the City. 2. Develop a comprehensive Energy Services Proposal for selected initiatives. The target facilities to be studied are located in Attachment C, located at the end of this letter agreement. ACTIONS TO BE PERFORMED McKinstry will complete the following action leading to implementation of performance- based initiatives: • Directed Energy Study ("DES"): The DES will identify and analyze performance-based contracting measures along with their associated savings, costs, and potential for utility rebates. McKinstry shall work closely with the local utilities to secure any applicable rebates that may be available to the City. The end result of the DES shall be an Energy Services Proposal for implementation of viable initiatives with associated energy cost savings and payback information. The deliverables associated with the energy service proposal can be found in Attachment A. The City will reimburse McKinstry for its time and expenses at a cost not to exceed $35,000.00 for (i) conducting the DES based on the Criteria for Implementation paragraph below, and (ii) developing an Energy Services Proposal for selected initiatives. ¦ [INSERT ENERGY SAVINGS GUARANTEE BY MCKINSTRY.] REQUESTED INFORMATION For effective execution of this letter agreement we ask that the City provide access to the following for each facility: ? Historical utility bills for the last 24 months. 2364 Logan's Way, Blanco, Tx 78606 Tel: (830) 833-5080 Fax: (206) 832-8585 Page 2 ? All mechanical, electrical, architectural, and structural drawings. ? All operational and maintenance manuals, balancing records, and specifications. ? Operational records related to the cost of maintaining specific equipment. ? Information with regards to any on-going maintenance contracts. ? Access to individuals that have relevant information pertaining to the day-to-day operation of energy using systems on site. CRITERIA FOR IMPLEMENTATION It is the City's intent that McKinstry will implement [DISCUSS] all approved projects that meet the following criteria: ? Aggregate payback for the work shall be equal to or less than the term to be funded not to exceed 15 years. Savings will include electricity and hard-cost operational savings including material and labor cost savings. ? The City is willing to finance the project over a term not to exceed 15 years. ? Not more than 100% of the Energy Cost Savings may be used to repay the loan ? The City's cash flow including savings, utility contributions, monitoring, cost of ECM's [WHAT DOES ~~ECM" MEAN?], and debt service (if used) must be neutral or positive with respect to the baseline cash flow and based on guaranteed savings over the term of the agreement not to exceed 15 years. FEE BILLING BASED ON CRITERIA All fees assessed under this letter agreement for the DES and implementation will be included in the final implementation costs. In the event that McKinstry is unable to recommend projects that meet the criteria above, the City has no further financial obligation to McKinstry. However, if the recommendations meet or exceed the above, and the City chooses not to enter into an agreement with McKinstry to install the projects, the City will reimburse McKinstry for its time and expenses for the DES and Detailed Design Engineering [NOT DEFINED]. All associated information, including deliverables, will become the property of the City upon final receipt of payment. MILESTONES McKinstry will initiate this scope of work immediately upon acceptance of this letter agreement. Formal progress review meetings will be conducted regularly throughout the study phase. During these review meetings, McKinstry will recommend measures, while the City will provide final direction regarding recommended measures. The goal of these review meetings is to focus engineering efForts, budgeting, and savings assessment on those measures that possess a high probability for implementation. The following are key milestones: • Authorize this letter agreement by the City • Study kick-off meeting with all stakeholders • McKinstry to deliver preliminary findings and analysis • Direction from the City based on McKinstry's preliminary findings • McKinstry to deliver study and implementation agreement • Independent third party review • Implementation agreement authorized by the City and work started by McKinstry PASSED AND ADOPTED, this 26th day of January, 2010. CITY OF SC ERTZ, TEXAS Mayor ATTEST: Secretary (CITY SEAL) 50291003.1 Directed Energy Study Proposal January 26, 2010 The City of Schertz 1400 Schertz Parkway Schertz, Texas 78154 Attention: Don Taylor, City Manager SUb)eCt: DIRECTED ENERGY STUDY - CITY OF SCHERTZ Dear Customer: The City of Schertz (the ~~City'~ is interested in improving the infrastructure of its existing facilities through a .performance-based contract with McKinstry Essention, Inc. (°McKinstry'. This letter agreement will provide the guidelines for which McKinstry will provide the following tasks: 1. Conduct a Directed Energy Study for the City. 2. Develop a comprehensive Energy Services Proposal for selected initiatives. The target facilities to be studied are located in Attachment C, located at the end of this letter agreement. ACTIONS TO BE PERFORMED McKinstry will complete the following action leading to implementation of performance- based initiatives: • Directed Energy Study (~~DES"): The DES will identify and analyze performance-based contracting measures along with their associated Energy Savings (as defined below), costs, and potential for utility rebates. McKinstry shall work closely with the local utilities to secure any applicable rebates that may be available to the City. The end result of the DES shall be an Energy Services Proposal for implementation of viable initiatives with associated energy cost savings and payback information. The deliverables associated with the energy service proposal can be found in Attachment A. The City will reimburse McKinstry for its time and expenses at a cost not to exceed $35,000.00 for (i) conducting the DES based on the Criteria for Implementation paragraph below, and (ii) developing an Energy Services Proposal for selected initiatives. • Energy Savings -means an estimated reduction in net fuel costs, energy costs, water costs, stormwater fees, other utility costs, or related net operating costs compared to an established baseline of those costs as required by Local Government Code Chapter 302. (See Attachment B). 2364 Logan's Way, Blanco, Tx 78606 Tel: (830) 833-5080 Fax: (206) 832-8585 Page 2 REQUESTED INFORMATION For effective execution of this letter agreement we ask that the City provide access to the following for each facility: ? Historical utility bills for the last 24 months. ? All mechanical, electrical, architectural, and structural drawings. ? All operational and maintenance manuals, balancing records, and specifications. ? Operational records related to the cost of maintaining specific equipment. ? Information with regards to any on-going maintenance contracts. ? Access to individuals that have relevant information pertaining to the day-to-day operation of energy using systems on site. CRITERIA FOR IMPLEMENTATION The City anticipates that it will enter into a further contract with McKinstry to implement all approved projects that meet the following criteria: ? Aggregate payback for the work shall be equal to or less than the term to be funded not to exceed 15 years. Savings will include electricity and hard-cost operational savings including material and labor cost savings. ? The City is willing to finance the project over a term not to exceed 15 years. ? Not more than 100% of the Energy Cost Savings may be used to repay the loan ? The City's cash flow including savings, utility contributions, monitoring, cost of energy conservation measures, and debt service (if used) must be neutral or positive with respect to the baseline cash flow and based on guaranteed savings over the term of the agreement not to exceed 15 years. McKinstry has agreed that in such a implementation contract it will guarantee to the City the Energy Cost Savings that are set forth in the DES. FEE BILLING BASED ON CRITERIA All fees assessed under this letter agreement for the DES and implementation will be included in the final implementation costs. In the event that McKinstry is unable to recommend projects that meet the criteria above, the City has no further financial obligation to McKinstry. However, if the recommendations meet or exceed the above, and the City chooses not to enter into an agreement with McKinstry to install the projects, the City will reimburse McKinstry for its time and expenses for the DES. All associated information, including deliverables, will become the property of the City upon final receipt of payment. MILESTONES McKinstry will initiate this scope of work immediately upon acceptance of this letter agreement. Formal progress review meetings will be conducted regularly throughout the study phase. During these review meetings, McKinstry will recommend measures, while the City will provide final direction regarding recommended measures. The goal of these review meetings is to focus engineering efforts, budgeting, and savings assessment on those measures that possess a high probability for implementation. The following are key milestones: 502907513 Page 3 • Authorize this letter agreement by the City • Study kick-off meeting with all stakeholders • McKinstry to deliver preliminary findings and analysis • Direction from the City based on McKinstry's preliminary findings • McKinstry to deliver study and implementation agreement • Independent third party review • Implementation agreement authorized by the City and work started by McKinstry Please see the attached terms and conditions related to this scope of consulting work. Letter Agreement Authorized by: Ci of Sche -1'~ i at re Signa ure Assistant City Manager ~ ~ ~-~t~/tr(,~_,~. (.Q Title Title January~~ , 2010 January ~ , 2010 Date Date 50290'751.3 Page 4 TERMS AND CONDITIONS CONSULTING SERVICES McKinstry Essention, Inc. (~~McKinstry'~ will provide consulting services for the project named above as an independent consultant to the City of Scheriz, Texas (the "City's and not as an employee, partner, or joint venture. The scope of McKinstry's services shall be as indicated in its proposal letter dated January 26, 2010. COMPENSATION AND ExPENSes The price for the work is $35,000.00. McKinstry shall submit a final invoice with the delivery of the Directed Energy Study. Payment will be made 30 days after receipt of invoice unless the City enters into a performance contract as presented within 30 days of presentation in which case the cost of these services will be included within the performance contract. TERMINATION Either party may terminate this Letter Agreement by giving ten (10) days written notice to the other party. In the event of such cancellation, McKinstry shall be entitled to compensation for serviced rendered to date of cancellation. INDEMNIFICATION McKinstry specifically agrees to defend, indemnify, and save harmless the City, its officers, agents, and employees against any and all loss, damage, suits, liability, claims, demands or costs resulting from injury or harm to persons or property, including claims of McKinstry's own employees, arising out of or in any way connected to McKinstry's performance hereunder. In the event of concurrent negligence of McKinstry and the City, McKinstry shall be liable only to the extent of McKinstry's negligence. McKinstry's activities shall be deemed to include those of its officers, employees, agents and sub consultants. In the event of litigation between the parties to enforce the rights under the above paragraph, reasonable attorney's fees shall be allowed to the prevailing party. McKinstry specifically and expressly waives any immunity under Industrial Insurance, Title 51 RCW, and acknowledges that this waiver was mutually negotiated by the parties herein. INSURANCE McKinstry shall procure and maintain for a period of the services, through insurance companies authorized to do business in the State of Texas, the following insurance coverages at the limited of liability specified for each, with renewable deductibles subject to approval of the City: 1) Commercial General Liability-$2 million per occurrence/$2 million in the aggregate 2) Automobile Liability Insurance-$2 million per accident 3) Workers Compensation-Statutory 4) Professional Liability-$1 million per claim / $2 million in the aggregate 50290751.3 Page 5 McKinstry shall name the City as ~~Additional Insured" for coverage (1) and (2). Coverage shall be primary and non-contributory. McKinstry shall provide the City with Certificates of Insurance before your work begins. MEDIATION In the event that any dispute arises between the parties concerning this Letter Agreement, such dispute shall be submitted first to mediation. Pending the outcome of mediation either party may seek injunctive relief in a court of competent jurisdiction. The prevailing party in any dispute under this Letter Agreement shall be entitled to recover from the other party or parties to the dispute all costs, expenses, and reasonable attorneys' fees relating to or arising from the enforcement or interpretation of, or any litigation or arbitration relating to or arising from a breach of this Letter Agreement. WAIVER OF BREACH The waiver by any party of a breach of any provision of this Letter Agreement cannot operate or be construed as a waiver of any subsequent breach by a party. SEVERABILITY If any provision of this Letter Agreement or the application thereof is held invalid or unenforceable, the invalidity shall not affect the remaining provisions of the Letter Agreement, which shall be read to give effect to the original intent of the parties. GOVERNING LAW The laws of the State of Texas shall govern interpretation of this Letter Agreement, and the parties contractually agree to exclusive and mandatory venue in the district court of Guadalupe County, Texas. 50290751.3 Page 6 ATTACHMENT A: DIRECTED ENERGY STUDY DELIVERABLES The following minimum elements will be included: 1. A description of the systems which shall receive Equipment and Services; 2. The cost effective Utility Improvement Measures (UIMs) to be installed or caused to be installed by McKinstry and a description of the UIMs analyzed but disqualified under the cost effectiveness criteria; 3. A description of the services that McKinstry will perform or cause to be performed on or in the facility or departments, including but not limited to engineering, construction management, the operations and maintenance procedures for use on Equipment, training for facility personnel, warranty service provided, and equipment maintenance provided; 4. The Maximum Allowable Project Cost; 5. Estimated Energy and Operational Savings 6. The standards of service appropriate for the utility improvement measure; 7. A description of how the City will finance its acquisition of the Equipment and when title to the Equipment will pass to the City; 8. A description of how the estimated Operations and Maintenance Cost Savings will be guaranteed by McKinstry; 9. A description of how the McKinstry proposes to be compensated; 10. The term of the Energy Services Agreement; 11. The schedule for project completion; 50290751.3 Page 7 ATTACHMENT B: PERFORMANCE CONTRACTING LEGISLATION CHAPTER 302. ENERGY SAVINGS PERFORMANCE CONTRACTS FOR LOCAL GOVERNMENTS Sec. 302.001. DEFINITIONS. In this chapter: (1) "Baseline" means a calculation or set of calculations in an energy savings performance contract that may be based on historical costs, revenues, accuracy, or related components and used for determining: (A) the costs for energy or water usage by a local government and related net operating costs; (B) the billable revenues from providing energy, water, or other utilities to users; or (C) the efficiency or accuracy of metering or related equipment, systems, or processes or procedures. 2) "Energy or water conservation or usage measures" means: (A) the installation or implementation of any of the items, equipment, modifications, alterations, improvements, systems, and other measures described by Subdivision (4) that are intended to provide: (i) estimated energy savings; (ii) an estimated increase in billable revenues; or (iii) an estimated increase in meter accuracy; or (B) the training for, or services related to, the operation of the items, equipment, modifications, alterations, improvements, systems, or other measures described by Paragraph (A). (3) "Energy savings" means an estimated reduction in net fuel costs, energy costs, water costs, stormwater fees, other utility costs, or related net operating costs from or as compared to an established baseline of those costs. The term does not include an estimated 502907513 Page 8 reduction due to a decrease in energy rates that is not derived from increased conservation or reduced usage. (4) "Energy savings performance contract" means a contract between a local government and a provider for energy or water conservation or usage measures in which the estimated energy savings, increase in billable revenues, or increase in meter accuracy resulting from the measures is subject to guarantee to offset the cost of the energy or water conservation or usage measures over a specified period. The term includes a contract for the installation or implementation of the following, including all causally connected work: (A) insulation of a building structure and systems within the building; (B) storm windows or doors, caulking or weather stripping, multiglazed windows or doors, heat-absorbing or heat-reflective glazed and coated window or door systems, or other window or door system modifications that reduce energy consumption; (C) automatic energy control systems, including computer software and technical data licenses; (D) heating, ventilating, or air-conditioning system modifications or replacements that reduce energy or water consumption; (E) lighting fixtures that increase energy efficiency; • (F) energy recovery systems; (G) electric systems improvements; (H) water-conserving fixtures, appliances, and equipment or the substitution of non-water-using fixtures, appliances, and equipment; (I) water-conserving landscape irrigation equipment; (J) landscaping measures that reduce watering demands and capture and hold applied water and rainfall, including: (i) landscape contouring, including the use of berms, swales, and terraces; and (ii) the use of soil amendments that increase the water- holding capacity of the soil, including compost; 502907513 Page 9 (K) rainwater harvesting equipment and equipment to make use of water collected as part of a storm-water system installed for water quality control; (L) equipment for recycling or reuse of water originating on the premises or from other sources, including treated municipal effluent; (M) equipment needed to capture water from nonconventional, alternate sources, including air-conditioning condensate or gaaywater, for nonpotable uses; (N) metering or related equipment or systems that improve the accuracy of billable-revenue-generation systems; or (O) other energy or water conservation-related improvements or equipment, including improvements or equipment relating to renewable energy or nonconventional water sources or water reuse. (5) "Guarantee" means a written guarantee of a provider that the energy savings, increase in billable revenues, or increase in meter accuracy from the energy or water conservation or usage measures will at least equal the cost of the energy or water conservation or usage measures, all causally connected work, and ancillary improvements provided for in an energy savings performance contract. (6) "Increase in billable revenues" means an estimated increase in billable revenues as compared to an established baseline of billable revenues. (7) "Increase in meter accuracy" means an estimated increase in efficiency or accuracy of metering or related equipment, systems, or processes or procedures that is calculated or determined by using applicable industry engineering standards. (8) "Local government" means a county,"municipality, or other political subdivision of this state. The term does not include a school district authorized to enter into an energy savings performance contract under Section 44.901, Education Code. (9) "Meter guarantee" means a guarantee of a stipulated or agreed upon increase in billable revenues to result from the estimated increase in meter accuracy, based on stipulated or agreed upon 50290751.3 Page 10 components of a billable revenue calculation in an energy savings performance contract. (10) "Provider" means an entity in the business of designing, implementing, and installing of energy or water conservation or usage measures or an affiliate of such an entity. Added by Acts 1997, 75th Leg., ch. 635, Sec. 1, eff. June 11, 1997. Amended by Acts 2001, 77th Leg., ch. 573, Sec. 6, eff. Septa 1, 2001; Acts 2003, 78th Leg., ch. 1310, Sec. 78, eff. June 20, 2003. Amended by: Acts 2007, 80th Leg., R.S., Ch. 5 2 7, Sec. 4, eff. June 16, 2007. Sec. 302.002. ENERGY SAVINGS PERFORMANCE CONTRACTS. (a) The governing body of a local government may enter into an energy savings performance contract in accordance with this chapter. (b) Each energy or water conservation or usage measure must comply with current local, state, and federal construction, plumbing, and environmental codes and regulations. Notwithstanding Section 302.001, an energy savings performance contract may not include improvements or equipment that allow or cause water from any condensing, cooling, or industrial process or any system of nonpotable usage over which public water supply system officials do not have sanitary control to be returned to the potable water supply. Added by Acts 1997, 75th Leg., ch. 635, Sec. 1, eff. June 11, 1997. Amended by Acts 2001, 77th Leg., ch. 573, Sec. 6, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 1319, Sec. 4, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 1310, Sec. 79, eff. June 20, 2003. Amended by: Acts 2007, 80th Leg., R.S., ch. 5 2 7, Sec. 5, eff. June 16, 2007. Sec. 302.003. PAYMENT AND PERFORMANCE BOND. Notwithstanding any other law, before entering into an energy savings performance contract, the governing body of the local government shall require the provider of the energy or water conservation or usage measures to file with the governing body a payment and performance bond relating to the installation of the measures in accordance with Chapter 2253, 50290751.3 Page l1 Government Code. The governing body may also require a separate bond to cover the value of the guarantee. Added by Acts 1997, 75th Leg., ch. 635, Sec. 1, eff. June 11, 1997. Amended by Acts 2001, 77th Leg., ch. 573, Sec. 6, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 1319, Sec. 5, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 1310, Sec. 80, 121(23), eff. June 20, 2003. Amended by: Acts 2007, 80th Leg., R.S., ch. 5 2 7, Sec. 6, eff. June 16, 2007. Sec. 302.004. METHOD OF FINANCING; TERMS OF CONTRACT. (a) An energy savings performance contract may be financed: (1) under a lease-purchase contract that has a term not to exceed 20 years from the final date of installation and that meets federal tax requirements for tax-free municipal leasing or long-term financing; (2) with the proceeds of bonds; or (3) under a contract with the provider of the energy or water conservation or usage measures that has a term not to exceed the lesser of 20 years from the final date of installation or the average useful life of the energy or water conservation or usage measures. (b) An energy savings performance contract shall contain provisions requiring the provider of the energy or water conservation or usage measures to provide a guarantee. If the term of the contract exceeds one year, the local government's contractual obligations in any one year during the term of the contract beginning after the final date of installation may not exceed the total energy and water savings, the net operating cost savings, and the stipulated or agreed upon increase in billable revenues resulting from the estimated increase in meter accuracy, divided by the number of years in the contract term. Added by Acts 1997, 75th Leg., ch. 635, Sec. 1, eff. June 11, 1997. Amended by Acts 1999, 76th Leg., ch. 361, Sec. 4, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 573, 50290751.3 Page 12 Sec. 6, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 1319, Sec. 6, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 1310, Sec. 81, eff. June 20, 2003. Amended by: Acts 2007, 80th Leg., R.S., ch. 5 2 7, Sec. 7, eff. June 16, 2007. Sec. 302.005. BIDDING PROCEDURES; AWARD OF CONTRACT. (a) An energy savings performance contract under this chapter may be let in accordance with the procedures established for procuring certain professional services by Section 2254.004, Government Code. Notice of the request for qualifications shall be published in the manner provided for competitive bidding. (b) Before entering into an energy savings performance contract, the governing body must require that the energy savings, increase in billable revenues, or increase in meter accuracy estimated or projected by a provider be reviewed by a licensed professional engineer who: (1) has a minimum of three years of experience in energy calculation and review; (2) is not an officer or employee of a provider for the contract under review; and (3) is not otherwise associated with the contract. (c) In conducting the review, the engineer shall focus primarily on the proposed improvements from an engineering perspective, the methodology and calculations related to cost savings, increases in revenue, and, if applicable, efficiency or accuracy of metering equipment. An engineer who reviews a contract shall maintain the confidentiality of any proprietary information the engineer acquires while reviewing the contract. Sections 1001.053 and 1001.407, Occupations Code, apply to work performed under the contract. Added by Acts 1997, 75th Leg., ch. 635, Sec. 1, eff. June 11, 1997. Amended by Acts 2001, 77th Leg., ch. 573, Sec. 12, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 1319, Sec. 7; Acts 2003, 78th Leg., ch. 1276, Sec. 12.005, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1310, Sec. 82, eff. June 20, 2003. 50290751.3 Page 13 Amended by: Acts 2007, 80th Leq., R.S., ch. 5 2 7, Sec. 8, eff. June 16, 2007. Sec. 302.006. METER GUARANTEES. (a) This section applies to any energy savings performance contract that: (1) provides for any metering or related equipment, system, or process or procedure; and (2) includes a meter guarantee by the provider, regardless of whether the meter guarantee is a part of a broader guarantee applicable to other energy or water conservation or usage measures or causally connected work. (b) Not later than the fifth anniversary of the effective date of an energy savings performance contract, an engineer shall test a statistically relevant sample of the meters installed or implemented under the contract to determine or calculate the actual average accuracy and shall compare the actual average accuracy to the baseline average accuracy of those tested meters. (c) A meter guarantee applies if the engineer reports to the local government and the provider that the average accuracy of the tested meters as of the testing date is less than the baseline average accuracy of the tested meters as of the testing date. (d) The amount payable under the meter guarantee must be determined for each year subject to the engineer's report and is equal to the difference between: (1) the agreed increase in billable revenues based on the estimated accuracy of all of the meters for each year, according to the energy savings performance contract; and (2) the revenues for the same year that would result from applying the engineer's reported actual average accuracy of the tested meters to all of the meters subject to the energy savings performance contract, using the same contract components that were used to calculate the agreed increase in billable revenues for that year, assuming the annual decrease in actual average accuracy of all the 50290751.3 Page 14 meters was a pro rata percentage of the reported total decrease in actual average accuracy. (e) Notwithstanding Subsection (d), if the meter guarantee in the contract is part of a broader guarantee applicable to other energy or water conservation or usage measures or causally connected work under the contract, the amount payable under the meter guarantee for any year during the measurement period is reduced or offset by the difference between: (1) the sum of the energy savings and the increase in billable revenues resulting from the other energy or water conservation or usage measures or causally connected work for that year during the measurement period; and (2) the guaranteed amount of the energy savings and the increase in billable revenues from the other energy or water conservation or usage measures or causally connected work for that year during the measurement period. (f) A test conducted under this section must be performed in accordance with the procedures established by the International Performance Measurement and Verification Protocol or succeeding standards of the United States Department of Energy. (g) An engineer conducting a test under this section shall: (1) verify that the tested meters have been properly maintained and are operating properly; and (2) comply with Section 302.005(c). Added by Acts 2007, 80th Leg., R.S., ch. 5 2 7, Sec. 9, eff. June 16, 2007. 50290751.3 Page 15 ATTACHMENT C: BUILDING INVENTORY LIST ADDRESS OCCUPANCY YEAR BUILT SQ FT 1298 Borgfeld Animal Control 1988 1,500 103 Aero Comfort Station 1982 560 401 Oak BVYA office 1984 2,100 403 Oak Small Pavilion 1982 900 503 Oak Comfort Station 1982 150 701 Oak Pool 1989 6,000 701 Oak Child pool 1989 300 701 Oak Bath house and concession 1989 1,500 703 Oak Large Pavilion 1982 14,400 703 A Oak Family Comfort Station 1982 680 703 B Oak Comfort Station 1982 150 901 Oak BVYA Concession 1982 3,200 903 Oak BYVA Comfort Station 2006 732 Ashley Comfort Station 1999 300 4318 Cherry Tree Bath house and Concession 2003 1,290 4318 Cherry Tree Pool 2003 2,200 3501 Morning Dr Community Center north 1979 4,514 19085 IH 35 N Substation 2005 6,442 104 E Huebinger Substation (Marion) 2006 840 19625B FM 3009 Radio Repeater Building 2007 100 1049 E Live Oak Dwelling (vacant) 1976 2,093 608 Schertz Parkway Comfort Station 1994 392 608 Schertz Parkway (old) Library 1981 9,000 798 Schertz Parkway Library 2009 31,500 1400 Schertz Pkwy Bldg 1 City Hall 1977 12,380 1400 Schertz Pkwy Bldg 2 Administration Building 2008 9,976 1400 Schertz Pkwy Bldg 3 Community Ctr 1977 5,200 1400 Schertz Pkwy Bldg 4 Council Chambers 2005 5,824 1401 Schertz Pkwy Bldg 5 Civic Center 2005 20,130 1402 Schertz Pkwy Bldg 6 Police Dept 1998 18,375 1400 Schertz Pkwy Bldg 7 EMS 1998 9,743 1400 Schertz Pkwy Bldg 8 Fire Dept 1998 12,400 1400 Schertz Pkwy Bldg 9 Facility Maintenance 2007 2,400 50290751.3 Page 16 1400 Schertz Parkway Comfort Station 2001 732 1400 Schertz Parkway Storage 1975 1,428 1400 Schertz Parkway BVYA concession / restroom 2006 3,200 1730 Schertz Parkway Kramer House 1900 1,676 1100 FM 1518 BVYA storage 1975 625 1120 FM 1518 Storage 1975 2,400 1130 FM 1518 Storage 1962 1,200 1140 FM 1518 Storage 1962 1,000 10 Commercial Place BIdg1 Purchasing /fleet /parks 1976 2,987 10 Commercial Place Bldg 2 Public Works 2006 12,960 621 Westchester Rec Ctr 2010 32,600 50290751.3