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posted November 08, 2007

Arena/Rinks Energy Retrofit Project

May 11, 2005:

Request

1. Request for Proposal # 9119-03-7275

2. Loan agreement with the Federation of Canadian Municipalities for green Municipal investment Fund (GMIF) financing

3. Report to Policy and Finance Committee: “A Framework for Establishing an Energy Retrofit Program and Financing Strategy”

4. Any interim or final document from Vestar/Cinergy giving recommendations for City Arenas and A.I.R. energy savings. Attached find the minutes of the Policy and Finance committee meeting on May 6, 2004, where this matter was discussed. Councillors who were present: Miller, Augimeri, Bussin, Cowbourne, Grimes, McConnell, Moscoe, Pantalone, Soknacki, Watson.

June 9, 2005, response from Corporate Access and Privacy office, City of Toronto: Access granted for RFP, at a cost of $16.60 for photocopies. No record of loan agreement exists “as the agreement has not been completed.” The report to Policy and Finance is enclosed. In response to getting a look at Cinergy recommendations: “disclosure of these records may affect the interests of a third party, as described in section 10 of the Act. Therefore, the third party is being given an opportunity to make representations concerning disclosure of the records. A decision on whether the records will be disclosed will be made by July 9, 2005 in accordance with Section 21 of the Act.”

It turned out that most of the RFP that was photocopied for $16.60 was blank.

July 11, 2005, from Corporate Access and Privacy, City of Toronto: “…written representations have been received from the third party. Having reviewed these representations, access is denied to the records that you have requested…Section 10 (1) has been relied upon to deny access to records that contain technical, commercial and financial information or would reveal such information supplied to the City in confidence, the disclosure of which could reasonably be expected to prejudice the competitive position or interfere significantly with the contractual or other negotiations of a person, group of persons or organization, or result in undue loss or gain to any person or group.”

August 17, 2005: Appeal to the Ontario Information and Privacy Commissioner (IPC) to overturn the denial of access to the specific recommendations made by Cinergy/ Vestar to the City of Toronto. Appeal Number MA-050302-1.

August 17, 2005: Request 05-2314. “We need the full text of the agreement that was entered into between the City of Toronto and Vestar/Cinergy (re RFP #9119-0307275).”

September 14, 2005: From the Ontario IPC: “Should the institution claim additional discretionary exemptions, it will be permitted to do so by October 20, 2005, and will be required to issue a new decision letter.”

September 19, 2005: from the City of Toronto Corporate Access and Privacy office, about the request for the completed RFP: “Access is granted in full to the records you have requested, and I enclose a copy of them.” [note: no photocopy fee, but no apology for sending the blank one either, or the 4-month time period elapsed since my original request.]

Notes:

Excerpts from the agreement between The City and CINERGY SOLUTIONS

Corporate Access Request 05-2314.

Received from City of Toronto Corporate Access and Privacy: “The full text of the agreement that was entered into between the City of Toronto and Vestar/ Cinergy, resulting from RFP 9119-03-7275.” “The Agreement made in quadruplicate effective as of the 8th day of December 2004.”

Selections from the 27-page agreement

p.1 (Article 1.01) Definitions: “Approval Period” means the period of 15 days from receipt by the City of information delivered by CINERGY SOLUTIONS – DEMAND. (Note: formerly called Vestar)

Design

P.4. (Article 2.01) “Before detailed design and construction begin, Cinergy Solutions will develop a Concept Report for each Measure and a summarized report for each Premise, subject to the approval of the City’s Representative….[and, Article 2.02] will present the City’s representative with a report for each of the Measures at the various Premises (“Concept Reports”)….[Article 2.03] Failure to notify Cinergy Solutions of the acceptance or rejection of a Concept Report within the Approval Period shall constitute an automatic acceptance of the Concept report. (p.5)” P.5 “[Article 3.01] Following the approval of the Concept Report, Cinergy Solutions will proceed with the detailed design and specifications of the Measures….[Article 3.02] The City will information Cinergy Solutions in writing of its acceptance, or any questions or concerns arising from the detailed design and specifications…Failure to notify Cinergy Solutions of the City’s acceptance or concerns within the Approval Period shall constitute acceptance by the City.” P.5 [Article 3.02] '“Either party may terminate this Agreement for any reason between the date the Agreement is executed and the Approved Total Project scope is submitted to the City.”' Note: “If the City terminates the Agreement….the City shall reimburse Cinergy Solutions for all costs and commitments incurred by Cinergy Solutions to the date of termination.”

Construction

p.6 [Article 4.05] re construction: when construction of any of the measures is complete Cinergy will notify the City. The City can let the company know of any objections to what was done. “If no such objections are raised within the Approval period, the City shall be deemed to have approved the completion of construction.”

Performance

[Article 7.01] '“…the City will provide Cinergy Solutions with complete data on electricity, gas and water utilities for the performance period for each premise that implemented the Measures.' Cinergy Solutions will quantify costs of energy consumption at the Premises, normalizing annual gas, electricity and water consumption for weather conditions and any changes in use of operations of the facilities as per Schedule “B”. If the total Project Cost… exceeds the product of the Test period [first 12 months after project end] savings multiplied by the Projected payback period, Cinergy Solutions will reimburse the difference to the City at the end of the performance period [24 months].” Note that Cinergy may also take out “energy savings insurance.”

Costs

[Article 9.01] “…costs shall include Cinergy Solutions labour, external resources, overheads, and mark-ups up to a maximum of $10.213 million. Notwithstanding the estimated costs exchanged by the parties or stated in this Agreement, the City is obligated to pay Cinergy Solutions the actual project costs.”

Obligations

[Article 11.04 (11)]“A Performance Bond, for due and proper performance of the Project…” '“Notwithstanding anything to the contrary herein or in the Agreement, the Surety shall not be liable for nor shall this bond respond to any claims by the City with respect to concept development, Concept report(s), design, errors in design, efficiency guarantees, performance guarantees, energy savings guarantees, Energy Cost Savings, or other similar obligations.”'

Note that if the City installs equipment that may lead to more power use, Cinergy’s energy savings guarantees won’t apply. [Article 14.04 (2)]

Calculations

[Article 14.06] “Any objections to the calculations and estimates [presented by Cinergy] will be made by the City in writing within the Approval Period. If no such objections are raised within the Approval period, the City shall be deemed to have approved the calculations and estimates.”

[Schedule “B”] (p.21) “The City and Cinergy Solutions, by mutual consent, may elect to determine Total Energy Cost Savings by calculation rather than by direct comparison with the Base Year.”

By October there had been limited movement on the appeal, but a close reading of the Agreement between Cinergy/Vestar had made it more evident what the questions should be. Since City staff were reluctant or too busy ot respond in detail, it seemed a good idea to put the Cinergy questions on a timetable. So CELOS submitted the following freedom of information request:

Oct.12, 2005:

To Corporate Access and Privacy Office, City of Toronto, Access request 05-2928 “Please send me the following information about the “Cinergy Solutions” energy retrofit project for City rinks and arenas:

1. Base Year numbers for electricity, fuel, and water for each of the 100 city rinks/arenas which are listed as part of the Energy Retrofit Project.

2. The "Concept Reports" for each of the 100 rinks/arenas (or however many have been completed)

3. Which of the Concept Reports have been specifically approved by the City Representative to date

4. Which, if any, of the Concept Reports were automatically approved by the City to date (i.e. because 15 days passed after delivery, without acknowledgment)

5. Costs incurred by Cinergy to date

6. Moneys paid out to Cinergy by the City to date It's our understanding from reading the Cinergy/City agreement that Cinergy must first submit the "Approved Total Project Scope," and the City must agree to it, before the project goes ahead. Has that occurred?”

November 16, 2005:

responses to the Cinergy questions, from Corporate Access and Privacy Office, City of Toronto:

1. base numbers for electricity, fuel, and water: From Corporate Access: “The City is in the process of collecting all the data and missing information pertaining to a meaningful ‘base year.’ It is the intention to select 2004 as the Base Year for calculation of savings. As soon as all necessary data and information is available, a final decision will be made whether 2004 is selected as the base year.”

2. “With regard to ….a request for a copy of the concept reports for each of the 100 or so rinks/arenas, disclosure of such relevant records may affect the interests of a third party. Therefore, the third party is being given an opportunity to make representations concerning disclosure of these records. A decision on whether these concept report records will be disclosed will be made by December 16, 2005, in accordance with Section 21 of the Act.”

3. Which of the concept reports have been specifically approved by the City representatives to date? “All of the concept reports have been put together under one binder (The Concept Report). Everything in the binder has been approved at the same time.”

4. Which reports were approved because 15 days had passed without acknowledgment of report delivery? “No individual concept report has been approved automatically. All concept reports have been provided in draft format for review and discussion at the same time. Approval was done at the same time for all concept reports.”

5. What costs have been incurred by Cinergy to date? “Approximately $500,000 costs have been incurred by Cinergy.”

6. What moneys have been paid out to Cinergy by the City to date? “No money has been paid out to Cinergy as of November 2, 2005.”

7. Does the process require that Cinergy must first submit the “Approved Total project Scope,” and that the City must agree to it before the project goes ahead? Has that occurred? “At this stage of the project, Cinergy is in the process of issuing design and specification documentation for various energy retrofit measures, for different locations. These documents are submitted to the City for approval. Cinergy is proceeding with implementation of the measures for which design and specification has been approved by the City. After completion of all design and specification documents, and once approval has been obtained, Cinergy will compile and submit the list of ‘Approved Total Project Scope.”

September 21, 2007

Notice of Order MO-2228

Adjudicator: Diane Smith

Conclusion about the "concept reports" "[T]he record does not qualify for exemption...from disclosure...I order the City to disclose to the appellant the entire 705-page record....without the inclusion of any dollar amounts..."

Conclusion about the Green Municipal Investment Fund loan agreement: the City's Administration Committee approved seeking the loan on April 24 2004 but the loan agreement was not signed until March 23 2006, and the effective date was not until Dec.31 2006. That agreement was amended on July 9 2007 and no money came from that fund until August 27 2007. So the adjudicator said the City couldn't show it to us at the time of the request. The adjudicator said that the appellant would now have to file a new request to see the loan agreement.

See FreedomOfInformationRequests.GMIFLoanAgreement

October 29, 2007

From the City of Toronto Access and Privacy office:

"...access is granted to the entire 705 page draft Concept Report...and...the Final Concept Report (763 pages)...."

fees for photocopying:

draft report: $139.20

final report: $150.60.

So we chose to read the reports at City Hall and only copy selected pages.

For the Freedom of Information request ruling, see Uploads:EnergyRetrofit/up-mo_2228.pdf.