HomeMy WebLinkAboutBack-Up DocumentsMEMORANDUM OF UNDERSTANDING
BETWEEN THE
NATURAL RESOURCES DEFENSE COUNCIL, INC.
AND
THE CITY OF MIAMI, FLORIDA
L PURPOSE
Draft 02/19/2020
This Memorandum of Understanding ("MOU") establishes the terms and conditions for the
working agreement ("Agreement") between the Natural Resources Defense Council, Inc.
("NRDC") and the City of Miami, Florida (the "C") in support of the City Energy Project (the
"Project"). NRDC together with the City are also referred to as the "Parties".
II. BACKGROUND
The Project is a national initiative to create healthier and more prosperous American cities by
improving the energy efficiency of buildings. The partnership between the NRDC and the
participating cities will support bold solutions that can be replicated by other municipalities
nationwide and around the world to advance local economic prosperity and reduce pollution.
Funding for the Project is provided jointly by Doris Duke Charitable Foundation, The Kresge
Foundation, and Bloomberg Philanthropies, (collectively, the "Project Funders"), and
administered through NRDC and the Institute for Market Transformation, Inc ("IMT").
NRDC is a 501(c)(3) public charity established in 1970 with the mission to safeguard the Earth:
its people, its plants and animals and the natural systems on which all life depends. NRDC has
the experience and ability to support the citywide execution of energy efficiency initiatives,
which will enhance the City's ability to achieve the long-term success of those initiatives and
benefit other communities seeking to implement similar initiatives.
III. AGREEMENT TO PARTICIPATE
The City will participate in the Project and agrees to pursue the successful execution of all such
initiatives, measures and other actions and goals to which it has committed in the request for
support it submitted to the Project (the "Request," attached hereto as Exhibit B). NRDC will
support the City in the achievement of all such initiatives, measures and other actions and goals
to which it has committed, for the duration of the City's participation in the Project, as more
specifically set forth in this MOU, particularly in Section IV, below.
IV. COMMITMENTS BY NRDC
NRDC, for the duration of the City's participation in the Project and at no expense to the City,
will use commercially reasonable efforts to provide support, resources and opportunities to assist
the City in achieving the goals contained in its Request as described in this Section IV:
1. Share best practices and expertise on all aspects of initiative design and implementation
including regular access to staff at NRDC and IMT as appropriate;
2. As determined by NRDC in its sole discretion, provide additional discretionary resources
to support local organization involvement in the Project, stakeholder engagement,
compliance with programs, and enhanced technical, analytical, and communications
capabilities of the City, where applicable;
3. As needed, and as determined by NRDC in its sole discretion, identify and assist the City
in securing additional resources to achieve the goals in its Request and its resource
commitment requirements;
4. Assist the City in peer-to-peer networking with other cities, including enabling
participation in in-person forums involving other cities and partners participating in the
Project; and
5. Designate an NRDC employee to direct NRDC's work with the City on the Project and to
serve as City's primary NRDC contact ("NRDC Project Lead").
NRDC reserves the right to direct its affiliate NRDC Action Fund Inc. (the "Action Fund") to
provide the support, resources and opportunities listed in this Section IV.
NRDC also reserves the right to direct independent contractors retained by NRDC or an affiliate
to provide the support, resources and opportunities listed in this Section IV.
IMT is not affiliated with, or under contract with, NRDC. IMT is associated with the Project and
will provide support, resources and opportunities to the City other than those listed in this
Section IV. NRDC is not responsible for IMT's ultimate delivery of support, resources and
opportunities to the City, and IMT's failure to provide the resources listed in this or any other
agreement shall not be a basis to terminate this MOU under the provisions of Section XI.2.
V. CONUMTMENTS BY THE CITY
The City commits to pursue, to the best of its ability and in a manner that complies with
applicable laws, ordinances, rules and policies and that facilitates collaboration among the City
and its major stakeholders, the following initiatives, by March 31, 2021, to increase the energy
efficiency of the buildings located within the City:
1. Passage of a city-wide building performance policy, including required benchmarking
and transparency, for existing buildings, as described in the Request.
2. In support of the implementation of these initiatives, the City commits to undertake the
following actions: Develop a project plan (the " Ci . Strategy Overview") describing the
City's goals and the initiatives and key actions the City intends to undertake to achieve
such goals. The City Strategy Overview will be jointly developed by the City, NRDC,
and IMT, and shall be attached to this MOU as Exhibit C. All parties shall make
reasonable efforts to complete the initial version of the City Strategy Overview by April
30, 2020. NRDC and the City may periodically update the City Strategy Overview to
reflect any necessary changes, pursuant to Section XI. The City Strategy Overview shall
include, but need not be limited to, the following items:
a. An overall timeline for the design, adoption and implementation of the actions,
including time -based milestones;
b. Descriptions of the key elements of each initiative and the actions undertaken to
achieve those initiatives;
c. City -based and non -City based resources and support needed by the City to
achieve each action;
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d. Estimated amount of time that key staff employed by the City can commit to the
design, adoption and implementation of the actions; and
e. An employee of the City designated to serve as the Project lead (the "City Project
Lead") and who shall bear overall responsibility for the City's execution of its
City Strategy Overview.
3. Provide NRDC and IMT with all information allowed by City laws, ordinances, rules,
and policies to enable them to successfully assist the City as set forth in this MOU,
including information related to buildings and energy metrics.
4. Participate in the Project network of peer cities to share best practices with NRDC and
other cities participating in the Project, including work products and materials,
programmatic concepts and successful processes.
5. Make the City Project Lead available to meet with designees of NRDC and IMT at least
once every month (at a time to be mutually agreed by the parties acting reasonably) for
the duration of the City's involvement with the Project.
6. Use reasonable best efforts to prioritize staffing in operations departments, such as the
City attorney's office, to support the Project work.
7. Use reasonable best efforts to take all necessary and appropriate actions to complete the
work stated in City Strategy Overview in accordance with the timeline and other
provisions set forth therein.
8. Use reasonable best efforts to coordinate with NRDC and its partners and other funders,
whether or not they are parties to this Agreement.
9. Use reasonable best efforts to provide information that will facilitate coordination
between NRDC and IMT and other entities also involved in the Project, including
cooperating with and supporting NRDC's compliance with all requirements of funding
provided to NRDC for use on Project expenses by adhering to the requirements set forth
in Exhibit A hereto (the "Funding Requirements").
10. Cause the City Project Lead and other relevant City staff to be available for one-hour
conference calls with representatives of NRDC and IMT (at a time to be mutually agreed
by the parties acting reasonably, and occurring no less frequently than on a quarterly
basis) to discuss the status of the Project work.
VI. LOBBYING AND ETHICS
The City affirms (a) the work performed by NRDC, the Action Fund, or independent contractors
retained by NRDC or the Action Fund shall not be considered to be lobbying and shall not be
subject to or limited by any such laws, ordinances, codes, rules or regulations, and (b) the City
shall not request NRDC, the Action Fund, or independent contractors retained by NRDC or the
Action Fund perform any work that violates or causes such entities to become subject to any
such laws, ordinances, codes, rules, or regulations.
The City represents and warrants that it is permitted under all applicable laws, ordinances, rules,
and policies, including those concerning government ethics, to participate in the Project under
the terms and conditions of this MOU and to accept resources from NRDC for these purposes.
The City also represents and warrants that it has obtained all approvals from State and/or City
attorneys, ethics bodies, and other authorities necessary to participate in the Project under the
terms and conditions of this MOU and to accept resources from NRDC for these purposes.
VII. TERM
This MOU shall be for a term commencing on XXX, 2020 and shall expire on April 30, 2021,
unless earlier terminated in accordance with the provisions herein.
VIII. AFFILIATION WITH THE PROJECT
NRDC supports the integration of all initiatives that are undertaken by the City with support
from the Project into the City's own long-term vision for sustainability, including any applicable
sustainability or climate action plans. NRDC may use the City's name and describe the activities
the City undertakes in conjunction with the Project, including in web and print materials
produced for public consumption, subject to the terms and conditions in Section XIII of this
MOU. Furthermore, NRDC may promote the involvement of the City in the Project through case
studies, reports, and other media, subject to the conditions in Sections IX and XIII of this MOU.
IX. OTHER PUBLIC COMMUNICATIONS
The City agrees to coordinate with NRDC on public communications by or on behalf of the City
that refer to the Project, and any such public communications must be mutually approved in
advance by the City and NRDC. Any joint communications or materials will require the prior
written approval of both the City and NRDC.
X. MODIFICATION OF THE CITY STRATEGY OVERVIEW
Any one of the parties to this MOU may propose modifications to the City Strategy Overview
based upon internal or external circumstances that affect the City's ability to achieve the
milestones and goals outlined in the plan or NRDC's ability to provide the support set forth in
the Support Plan. All substantive modifications, such as to the programs the City will pursue or
to the Project timeline, must be agreed upon by the City Project Lead and the NRDC Project
Lead who bear primary responsibility for day-to-day management and execution of the Project,
and are also accountable for the overarching structure and strategy of the Project. The NRDC
Project Lead shall not unreasonably withhold approval. If the City Project Lead and the NRDC
Project Lead cannot reach an agreement about the terms of any such proposed modification,
NRDC shall have the right to terminate this MOU in accordance with Section XI.
XI. TERMINATION OF MOU
This MOU may be terminated by the parties according to the following conditions:
Failure by the City to Achieve Milestones: NRDC may terminate this MOU if, more than
six months after the execution of this MOU, it determines that the City is substantially
unable to achieve the milestones and goals outlined in its City Strategy Overview, or that
the City has demonstrated an inability to dedicate the required resources to the
achievement of the milestones and goals in its City Strategy Overview. Prior to
terminating this MOU as provided in this Section XI. 1, NRDC may initiate a process
under Section X to propose modifications to the City Strategy Overview and clearly
communicate these proposed modifications to the City.
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2. For Cause: Either the City or NRDC may terminate this MOU if the other party is in
material breach of its obligations under this MOU, and such breach has not been
corrected to the non -breaching party's reasonable satisfaction in a timely manner after
written notice of such breach has been provided to the breaching party.
3. Notice: Unless otherwise specified herein, written notice of termination pursuant to this
Section XI shall be given by the party terminating this MOU to the other not less than 30
calendar days prior to the effective date of termination.
XII. RELATIONSHIP
This MOU shall not be construed as a joint venture or so as to make any one of the parties an
agent of any of the other parties. Each of the parties hereto expressly disclaims any intention to
enter into any such agency or joint venture and agrees to conduct itself so as not to act or purport
to act on behalf of the other. This MOU does not authorize any party to act as the agent or legal
representative of any other party for any purpose whatsoever and no party is granted any express
or implied right or authority to assume or create any obligation or responsibility on behalf of or
in the name of any other party, or to bind any other party in any manner or thing whatsoever.
To aid in the advancement of the City Strategy Overview, NRDC employees will be advising the
City regarding governmental decisions. As such, NRDC employees may present themselves as
working with the City to further the goals of the City Strategy Overview in spoken and written
communications. No NRDC employee shall be considered an employee or agent of the City.
XIII. CONFIDENTIALITY OF INFORMATION AND PROTECTION OF
INTELLECTUAL PROPERTY
Each party recognizes that it may have access to information of a proprietary, private or
confidential nature owned by another party (a "Disclosing Party"). Each party acknowledges
that any proprietary, private and confidential information it shares with any other party under
this MOU must be identified as such at the time of communication. As such, each party that
receives or has access to information that has been so identified (a "Receiving Party") agrees
to keep such information in strictest confidence and protect it from disclosure; provided that
the parties may disclose such information as required by any applicable ordinances,
regulations and laws that govern the Receiving Party. The provisions of this Section XIII shall
not apply to (a) information that is publicly known or publicly available, other than as a result
of breach of this Section XIII, (b) information obtained by a Receiving Party from a source
other than a Disclosing Party, which the Receiving Party knows is not under an obligation of
confidentiality to the Disclosing Party, (c) information that is independently developed by a
Receiving Party without access to a Disclosing Party's confidential information, (d)
information already in the possession of Receiving Party, provided that such information is not
known by Receiving Party to be subject to any legal or contractual obligation of
confidentiality owed to Disclosing Party and (e) information that cannot be treated as
proprietary, private, or confidential pursuant to applicable law.
Each party hereby waives any and all right, title and interest in and to such information of the
other and agrees to return all physical copies, and destroy all electronic copies, of such
information, except as otherwise agreed, at the expense of the party returning or destroying the
information, upon request at the expiration or termination of this MOU. NRDC retains the right
to aggregate otherwise confidential information for use in publications or other materials
intended for public consumption, providing that individual confidentiality is maintained.
All rights and intellectual property rights (including copyrights), in any work, including, without
limitation, all plans, research results, publications, developments, reports, processes, programs,
analyses, website content, and other materials created or developed by or on behalf of the City
and/or by NRDC ("Works") will be licensed to NRDC on a royalty -free basis to facilitate best
practice sharing among participating cities in the Project and other interested cities.
XIV. DISPUTE RESOLUTION
Any dispute or misunderstanding that may arise under this MOU shall first be addressed through
negotiations, if possible, between the parties. If the official representatives of the parties do not
reach a resolution within a reasonable period of time, the parties may pursue other legal means to
resolve such disputes, including (but not limited to) alternate dispute resolution processes, with
mediation to be the first such process pursued by the parties.
XV. LIMITATION OF LIABILITY
No party shall be liable to any other party for any incidental, indirect, special or consequential
damages of any kind arising out of this MOU or the relationship between the City and NRDC.
The provisions of this Section XV will survive the expiration or earlier termination of this MOU.
XVI. NOTICES
All notices and other communications pursuant to this MOU must be in writing, addressed to the
parties at the applicable address set forth on the signature page hereof (or such other address as a
party may from time to time specifically designate in writing), must be sent by a nationally
recognized overnight courier and will be deemed given on the date delivery is first accepted or
refused.
XVII. INDEMNIFICATION
The City will indemnify and hold harmless NRDC and all of its officers, directors and employees
from and against any and all liabilities, losses, damages, claims or causes of action, and any and
all related expenses (including reasonable attorneys' fees) that in any way arise out of or are
alleged to arise out of acts or omissions of the City, its officers, agents, employees and
subcontractors and arise out of or are related to, directly or indirectly, NRDC's work for the City,
including, without limitation, any and all claims related to harassment, discrimination, unlawful
conduct, negligence or otherwise, irrespective of whether such claims are made by NRDC or
City employees, contractors, customers, clients or any other third parties. Other than as specified
herein, neither the City nor NRDC shall be liable to the other party for any alleged damages
solely based on the substantive results of any initiatives implemented pursuant to this MOU.
XVIII. MISCELLANEOUS PROVISIONS
Neither this MOU, nor any rights or obligations hereunder, may be assigned, delegated,
transferred or sublicensed by any party, by operation of law or otherwise, without the express
prior written approval of the other parties. This MOU cannot be modified orally, and none of the
terns hereof will be deemed to be waived or modified except by an express agreement in writing
signed by the party against whom such waiver or modification is sought to be enforced. This
Ci
MOU contains the entire agreement between the parties with respect to the subject matter hereof
and supersedes and replaces all prior or contemporaneous understandings or agreements, written
or oral, regarding such subject matter.
[Signature page follows]
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IN WITNESS WHEREOF, the parties to this MOU have affixed their signatures:
[City of Miami]
[Address 1]
[Address 2]
[NAME]
City Project Lead
[Address 1]
[Address 2]
[Name]
[Title]
Natural Resources Defense Council, Inc.
40 West 201h Street
New York, NY 10011
[Signature Page to Miami MOU]
Date:
Date:
Date:
EXHIBIT A — FUNDING REQUIREMENTS
The City shall use its best efforts to assist NRDC in:
Complying with applicable laws, including by ensuring that resources provided to the
City by NRDC are not used: (i) in support of, or to promote, violence, terrorist activity or
related training, whether directly through its own activities and programs, or indirectly
through its support of, or cooperation with, other persons and organizations known to
support terrorism or that are involved in money laundering activities; (ii) for purposes of,
or in connection with, bribery or in contravention of the U.S. Foreign Corrupt Practices
Act of 1977, as amended, or other applicable anti -bribery law; and (iii) in compliance
with all applicable government ethics and transparency laws;
• Ensuring that resources provided to the City by NRDC are used only to advance the
official purposes of the City and are not used for lobbying (without the express advance
written consent of NRDC), for political contributions, to support political campaigns, or
to benefit any particular City official personally;
• Maintaining accurate and updated books and records related to the Project, including by
making such City's books and records related to the Project available for inspection at
reasonable times by NRDC;
Providing information regarding the progress of the Project, including by: (i) assisting
NRDC in drafting a narrative account of the progress of the Project and what was
accomplished with the resources provided by NRDC to the City and (ii) providing NRDC
with copies of any media coverage of the Project and two copies of any publication,
audio or video program, film or other media project produced by the City related to the
Project for archival, research or presentation purposes;
• Preparing and submitting any additional information required by NRDC's funding
sources, including unscheduled reports requested by the funding sources;
• Drafting and submitting updates about the Project's status, contacts and other requested
topics to the extent requested by the funding sources;
• Documenting the Project, including by assisting with any efforts by NRDC to facilitate or
produce publications, audio or video programming, film or other media regarding the
Project;
• Complying with any restrictions on, or requirements for the prior approval of, any Media
Release (as defined below) which references the funding or the funding sources of the
Project, by providing such Media Release to NRDC prior to distribution and complying
with any requirements relayed by NRDC with respect to the content, timing and means of
distribution of any such Media Release. For the purposes of this Agreement, "Media
Release" shall mean any publication, advertising, speech, lecture, interview, press
release, internet web page or other media venue of any kind;
• Making reasonable use of the City Mayor's time, who shall participate in no less than
three meetings per year with senior officials of the Project team to discuss the City's
progress on the initiatives described in its City Strategy Overview; and
Causing the City Project Lead and other relevant City staff to be available for one-hour
conference calls with representatives of NRDC and Third Parties (at a time to be
mutually agreed by the parties acting reasonably, and occurring no less frequently than on
a quarterly basis) to discuss the status of the Project work.
EXHIBIT B - REQUEST FOR SUPPORT
From: Gilbert, Jane
To: Caroline Keicher; Zachary Hart
Cc: Narita. Kimi; Walker. Olivia; Kl000. Jonathan
Subject: Follow up detail on the City of Miami"s request for support through the City Energy Project
Date: Friday, April 10, 2020 9:19:52 AM
Dear Ms. Keicher and Mr. Hart:
In follow up to City Manager Arthur Noriega's letter dated March 31, 2020, 1 am
requesting support to work on building efficiency through the City Energy Project (CEP).
This initiative will be a powerful tool in helping the City reach its carbon neutrality by
2050 goal by incentivizing the efficient use of energy and water in our largest, most
energy intensive buildings.
Initial Milestones
The dates below outline the first steps the County and stakeholder workgroup members will
take to explore the feasibility of adopting a building performance standard. The stakeholder
workgroup is expected to set out additional milestones beyond those suggested below:
Spring 2020
. Begin stakeholder workgroup process to develop
recommendations on a building performance standard
Begin to coordinate with utilities on whole building data
Summer 2020
. Stakeholder workgroup meetings
Conduct technical research
Fall 2020
. Finalize stakeholder workgroup recommendations report
Workgroup to draft building performance standard legislation
recommendations
Recommended legislation enacted (anticipated)
Winter 2020-21
a Outreach and education on building performance standard
. Explore/establish technical assistance hub
To achieve these milestones, the City of Miami is requesting technical support from IMT, NRDC, and
third -party contractor(s) to help to design, pass, and plan for implementation of a building
performance ordinance that includes energy and water benchmarking and transparency
requirements. Ideally, this support would include the following:
Building Performance Policy design, passage, implementation support:
• Assist with policy development and adoption
o Advise on best practices for inclusion in the ordinance
o Help draft policy language based on best practices, local characteristics, and
stakeholder feedback
o Assist with energy efficiency savings calculations and job creation calculations
resulting from policy
o Provide City of Miami with opportunities to engage with a national network of
peer cities all working on improving energy efficiency in buildings though in-
person convenings, webinars, and facilitated peer-to-peer learning events; this
network includes the current CEP communities, CEP alumni communities, and
current Climate Challenge cities, as well as access to support through relevant
USDN Working Groups
• Initiate and facilitate stakeholder engagement to pass policy
o Advise on stakeholder engagement strategies, potentially facilitated by a
funded third party, to gather policy preferences and recommendations from
the local community
o Assist with stakeholder engagement meetings, including meeting preparation
and facilitation, as well as collecting and synthesizing discussion
o Provide example materials, content, and recommendations for review and
feedback during stakeholder meetings
o Advise on political strategy, policy design, passage, and/or implementation,
intra -government relationship building, and/or strengthening local
partnerships.
o Draft testimony and materials to Council in support of ordinance adoption
• Communications support
o Provide and/or help develop case studies, Web content, and other materials to
show benefits of a building performance policy
o Help with messaging and development of outreach materials to demonstrate
the economic, environmental, and public health value of a building
performance ordinance
o Assist with messaging and outreach strategy regarding the cost of compliance
for benchmarking and transparency policies
• Implementation support
o Assist and advise on engagement with local utilities to align whole building data
access provision
o Assist the City of Miami with developing a data collection and analysis plan for
building performance data
o Assistance with planning for outreach, compliance, and enforcement to increase
annual compliance
o Provide projections of cost compliance should City of Miami proceed with an
energy efficiency requirement
o Provide recommendations on development of resources for compliance
assistance for building owners (e.g. help centers, trainings, etc.)
The City of Miami looks forward to working in partnership with NRDC and IMT on the City
Energy Project.
Sincerely,
Jane Gilbert, Chief Resilience Officer
Office of Resilience and Sustainability
City of Miami
444 SW 2nd Avenue, 10th Floor
Miami, FL 33130
(305)416-1048
jagilbertPuniamigov.com
Learn more at. Climate Readv Miami and Resilient305
EXHIBIT C - CITY STRATEGY OVERVIEW
ARTHUR NORIEGA, V
CITY MANAGER
March 31, 2020
Caroline Keicher
Natural Resources Defense Council
Zachary Hart
Institute for Market Transformation
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RE: City of Miami's Support for City Energy Project (CEP) Proposal
Dear Ms. Keicher and Mr. Hart:
P.O. BOX 330708
MIAMI, FLORIDA 33233-0708
(305)250-5400
FAX (305) 250-5410
We are pleased to provide this confirmation of our interest and support for the City Energy Project (CEP)
proposal - Building Efficiency 305: Miami (BE305 Miami) - which aims at developing a program to
significantly reduce energy and water consumption across the City of Miami. As part of our plan and
commitment, our legislative body recently enacted a legislation that focuses on building performance,
including energy and water benchmarking and transparency requirements for the largest private sector
buildings and government buildings citywide. This initiative will be a powerful tool in helping the City
reach its carbon neutrality by 2050 goal by incentivizing the efficient use of energy and water in our
largest, most energy intensive buildings.
BE305 Miami will be an added tool to many of our existing programs and regulations including our local
Zoning code (Miami 21) which requires LEED Silver Certification for new buildings over 50,000 square
feet and the use of cool or green roofs in construction. Coincidentally, the BE305 project ties well into
one of our committed actions in the Resilient305 unified strategy rolled out in May 2019 in collaboration
with Miami -Dade County and Miami Beach, as well as our local Miami Forever Climate Ready strategy
launched in January 2020.
The City of Miami will remain focused in the success of the CEP proposal as part of our overall strategy
for resilience and sustainability and will collaborate with agencies and organizations like yours always.
If you need any additional information, please feel free to contact Ms. Jane Gilbert, our Chief Resilience
Officer and Director of the Office of Resilience and Sustainability.
Sincerely,
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Arthur Noriega, V
City Manager
cc: Nzeribe Ihekwaba, Ph.D., P.E., Assistant City Manager/Chief of Infrastructure