HomeMy WebLinkAboutExhibitASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT (the "Agreement") is dated as
of this 3rd day of August 2010 and is entered into by and between Florida Power & Light
Company, a.Florida corporation ("Assignor"), FPL Services; LLC, a Florida limited liability
company (the "Assignee"), and City of Miami, a Florida Municipal Corporation ("Customer").
RECITALS:
A. WHEREAS, Assignor and Customer entered into a MASTER AGREEMENT FOR
DEMAND SIDE MANAGEMENT AND ENERGY EFFICIENCY SERVICES, effective
December 7, 2004 (the "Agreenzent" ); and
B. WHEREAS, Assignor has agreed to assign all of its rights and obligations under the
Agreement to Assignee and Assignee has agreed to accept and assume from Assignor such rights
and obligations; and
C. WHEREAS, Customer consents to the assignment from Assignor to Assignee.
AGREEMENT:
NOW THEREFORE, the parties hereby agree as follows:
1, The Assignor hereby assigns; transfers, conveys and sets over to the Assignee, all
right, title and interest of the Assignor in the rights under the Agreement (collectively; the
"Assigned Rights"). The Assignor hereby delegates, transfers, conveys and sets over to the
Assignee all duties, liabilities and obligations under the Agreement (collectively; the "Delegated
Duties").
2. The Assignee hereby unconditionally acquires, assumes and accepts the Assigned
Rights and the Delegated Duties.
3. The provisions of this Agreement are for the exclusive benefit of the parties hereto
and no other party_ (including without limitation any creditor of any party hereto) shall have any
right or claim against any party hereto by reason of those provisions or be entitled to enforce any
of those provisions against any party hereto.
4. This Agreement shall be governed by and construed in accordance with the
substantive laws of the State of Florida. without regard to its conflict of laws rules.
5. This Agreement shall inure to the benefit of and be legally binding upon all
successors and assigns of the parties hereto.
6. No amendment or modification of this Agreement shall be effective urdess made in
writing and signed by the parties hereto.
7. If any provision of this Agreement is held to be illegal, invalid, or unenforceable
under present or future laws, such provision shall be fully severable; this Agreement shall be
construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a
part of the Agreement; and the remaining provisions of the Agreement shall remain in full force
and effect and shall not be affected by the illegal, invalid, or unenforceable provision or by its
severance from the Agreement. Furthermore; in lieu of such illegal, invalid or unenforceable
provision, there shall be added automatically as a part of this Agreement a provision as similar in
its terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid
and enforceable.
8. This Agreement may be executed in counterparts; each of which shall be deemed an
original, but all of which together shall constitute one and the same instrument.
9. This Agreement constitutes the entire fmal understanding and agreement of the
parties hereto with respect to its subject matter, and there are no agreements, understandings,.
restrictions, representations or warranties among the parties other than those set forth in this
Agreement.
IN WITNESS WHEREOF, the Assignor and the Assignee have each caused their duly
authorized representative to execute this Agreement where indicated below.
[Signatures on following page] .
Assignor:
Florida Power & Light Company
By:
Name: Sam Forrest
Title: VP Energy Marketing & Trading
Assignee:
FPL Services, LLC
By: aL=
Name: Greg Hanlon
Title: VP & GM FPL Services
Customer:
City of Miami, a Florida Municipal Corporation
Name:
Title:
ASSIGNMENT AND ASSUMPTION AGREEMENT
WITH FLORIDA POWER AND LIGHT COMPANY AND
FPL SERVICES, LLC
CITY OF MIAMI, a municipal
Corporation of the State of Florida
CARLOS A. MIGOYA
CITY MANAGER
ATTEST:
PRISCILLA A. THOMPSON
CITY CLERK
APPROVED AS TO INSURANCE
REQUIREMENTS
GARY RESHEFSKY
RISK MANAGEMENT
APPROVED AS TO FORM AND
CORRECTNESS
JULIE 0. BRU
CITY ATTORNEY
SUPPLEMENTAL AGREEMENT NO, 1
SCHEDULE A
DESIGNATION OF SERVICE LOCATIONS
Pursuant to Supplemental Agreement No. 1
dated as of —day of , 2010, between
FPL Services, LLC (the "Company") and City of Miami (the
"Customer") (the "Supplemental Agreement"), the
Customer hereby designates the following Service
Location(s) of the Customer for purposes of Services to be
provided by the Company pursuant to the Supplemental
Agreement:
City Hall, 3500 Pan American Drive
Police N District Substantiation, 1050 NW 62nd Street
Manuel Artime Comm. Ctr. 970 SW 1 I Street
Police S District Substation, 2200 W Flagler Street
Fire -Rescue Station #1,144 NE 5th Street
Manuel Artime Comm Center Theater, 900 SW 1 I Street
Executed this day of , 2010 by:
THE CUSTOMER:
City of Miami
Carlos A. Migoya
City Manager
Approved as to insurance requirements:
Gary Reshefsky, Interim Director
Risk Management Division,
c3chedu1e_A_Name»
Attest:
Priscilla A. Thompson
City Clerk
Approved as to legal form and correctness:
Julie O. Bru
City Attorney
SUPPLEMENTAL AGREEMENT NO. 1
SCHEDULE E
CONSTRUCTION AND IMPLEMENTATION ORDER
THIS SCHEDULE E (this "Schedule") for
the Service Location(s) set forth in Schedule A is
made and entered into as of the 3rd day of
August, 2010, by and between FPL SERVICES,
LLC (the "Company") and the City of Miami (the
"Customer') (the Company and the Customer
each being referred to herein individually as a
"Party" and collectively as the "Parties"), with
reference to the following:
RECITAL
This Schedule is entered into pursuant to
that certain Master Agreement for Demand Side
Management and Energy Efficiency Services
dated as of December 7, 2004, between the
Company and the Customer (the "Master
Agreement") and the Service Location(s) set
forth in Schedule A dated as of August 3, 2010,
also between the Company and the Customer
(the "Supplemental Agreement"). Capitalized
terms used herein without other definition shall
have the meanings set forth in the Master
Agreement. The terms of the Master Agreement,
the Supplemental Agreement and all Appendices
to this Schedule E are incorporated by reference
into this Schedule E.
NOW, THEREFORE, in consideration of
the mutual promises and agreements set forth
herein and in the Master Agreement, the Parties,
intending to be legally bound, hereby agree as
follows:
1. Construction and
Implementation Services. The Customer
hereby requests the Company to construct and
install each approved ECO identified in Appendix
I attached hereto, in accordance with the final
accepted Design Document prepared by the
Company pursuant to City of Miami Phase 1 IGA.
The Company agrees to perform such Services
for the compensation set forth herein, subject to
the terms and conditions of the Master
Agreement. Further detailed specifications, if
any, agreed upon by the Parties with respect to
the Services to be performed by the Company
«Schedule E Name»
hereunder (including, but not limited to, the
designation of one or more Implementation
Contractors approved by the Customer) are set
forth in Appendix II attached hereto. Additional
terms and conditions, if any, with respect to the
Services. to be performed by the Company
hereunder or the approved ECOs to be
constructed and installed pursuant to this
Schedule are set forth in Appendix III attached
hereto.
2. Customer Cooperation. The
Customer shall use reasonable efforts to assist
the Company in performing the Services
contemplated by this Schedule, including
providing reasonable access to the Customer's
Service Location(s), providing information
concerning the Service Location(s), making
appropriate Customer personnel available if
requested by the Company to assist the
Company in performing such Services, and taking
any other actions the Company may reasonably
request from time to time to achieve the purposes
and intent of this Schedule and the Master
Agreement.
3. Inspections and Final
Acceptance. During the performance of
Services under this Schedule, the Customer shall
have the right to inspect the work of the Company
or any Implementation Contractor at any time
upon reasonable prior notice. Upon completion
of construction and installation of each ECO, the
Parties shall conduct a final inspection and if the
work is found to be substantially complete, the
Customer shall execute and return to the
Company a Schedule F (Certificate of Final
Acceptance) of the Supplemental Agreement for
each such completed ECO, within twenty (20)
days following receipt by the Customer of a notice
of substantial completion from the Company. If,
upon inspection by the Customer, the work is not
found to be substantially complete, or if any
material defect or deficiency exists, then the
Customer shall so notify the Company in writing
within such twenty (20) -day period, and the
Company shall promptly perform any necessary
corrections and repairs. When the Company has
completed such corrections and repairs, it shall
again issue a notice of substantial completion to
the Customer, and the foregoing procedure shall
be repeated until such time as the Customer shall
execute and return a Schedule F;rop vided,
however, that a failure of the Customer to
respond altogether within any such twenty (20) -
day period following the receipt of a notice of
substantial completion from the Company shall
be deemed, for the purposes of this Schedule, to
constitute an issuance by the Customer of a
Schedule F with respect to the ECO of which the
Customer has been given notice.
4. Training. If applicable pursuant
to the Master Agreement, the Company shall
provide on-site training for a reasonable number
of the Customer's operating personnel with
respect to completed ECOs, and the Customer
shall assist in such training, all as more fully
specified in Appendix II. Unless otherwise
provided in Appendix ll, such training shall be
conducted with respect to an ECO following the
Final Acceptance Date of the ECO.
5. Price and Payment.
5.1 Schedule E Price. The
Customer shall pay to the Company the sum of
$783,539.00 for all Services performed by the
Company pursuant to this Schedule. The
Schedule E Price is the full compensation for
such Services and includes all federal, state and
local taxes, if any, including sales, use and excise
taxes, assessed with respect to the Services or
with respect to the furnishing of equipment and
materials hereunder.
5.2. Company Provided
Financing. Not Applicable.
5.3 Assignment and
Assumption Agreement, Demand Side
Management Agreement. The following
documents are to be deemed exhibits to the
Master Agreement for Demand Side
Management and Energy Efficiency Services
effective December 7, 2004 between Florida
Power and Light Company and the City of Miami,
assigned to FPL Services, LLC pursuant to the
Assignment and Assumption Agreement of
August 3, 2010:
5.3.1. Supplemental Agreement #1
Schedule A: Designation of Service Locations
5.3.2 Supplemental Agreement #1
Schedule E: Construction and Implementation
Order
5.3.3 Supplemental Agreement #1
Schedule E: Appendix I — Approved ECOs
5.3.4 Supplemental Agreement #1
Schedule E: Appendix II — Service Specifications
5.3.5 Supplemental Agreement #1
Schedule E. Appendix III — Draw Schedule
5.3.6 Supplemental Agreement #1
Schedule E: Appendix IV — Preliminary
Construction Schedule
5.3.7 Supplemental Agreement #1
Schedule E: Appendix V Construction
Cancellation Schedule
5.3.8 Supplemental Agreement #1
Schedule E: Appendix VI — Special Terms and
Conditions for City of Miami EECBG Award
5.4 Invoices.
Notwithstanding any contrary term in Section 3.09
of the Master Agreement, all invoices shall be
submitted to:
Ajani Stewart, Environmental Coordinator
Office of Sustainable Initiatives
City of Miami
444 SW 2"d Ave, 5`h Floor
Miami. FL 33130
6. Disclaimer of Warranties. The
Customer acknowledges and agrees that the
Company makes no representation or warranty of
any kind with respect to the Services to be
performed by the Company or any other person,
including any Implementation Contractor,
pursuant or relating to this Schedule, except as
expressly set forth in Article 4 of the Master
Agreement or, if applicable, in any Appendix
attached to this Schedule.
7. Availability of Funding.
Notwithstanding Section 15.01 of the Master
Agreement, upon thirty (30) days written notice
from the Customer, acting through the City
2
Manager, this Schedule is subject to termination
for convenience by the Customer due to lack of
funds, reduction of funds, and/or change in
regulations. In the event of termination, the
Customer shall pay the Company for work
performed through the effective date of
termination as determined in accordance with
Section 8 below.
8. Termination Expense. In the
event of a termination by the Customer pursuant
to Section 7 above, the Company will be paid for
work performed prior to the effective date of
termination as substantiated by invoices and
other supporting documentation reasonably
acceptable to Customer; provided that such
amounts will not exceed the cumulative amounts
up to and including the month of the effective
termination date as set forth in the Termination
Schedule attached as Appendix V. The
Company will have no recourse against the
Customer for the balance of the terminated
portion of the work; provided however, that, for
the avoidance of doubt and subject to the
preceding sentence, the costs for the
performance of work through the effective date
of termination will include the costs of orders
placed with Company's subcontractors and
suppliers prior to the notice of termination that
are not cancelable. Notwithstanding Section
12.01 of the Master Agreement, upon payment
of the termination expenses pursuant to this
Section 8, Customer shall have full title for all
Work performed through the effective date of
termination.
9. Interest. The Customer will pay
12% per annum simple interest on an
undisputed and uncontroverted balance not paid
25 business days from when the Company has
presented a proper invoice, as such terms are
defined by Local Government Prompt Payment
Act. §218.70-218.79, Fla. Stat. All notices and
disputes resolution processes with regard to
invoices and payments thereof shall be subject
to the requirements of the Local Government
Prompt Payment Act.
10. Restrictions on Use of Funds.
The Customer intends to fund the specified work
through a federal grant, the American Recovery
and Reinvestment Act ("ARRA") Energy
Efficiency and Conservation Block Grants
("EECBG"). Company shall provide information,
documentation and cooperation reasonably
necessary for the Customer to comply with its
requirements set forth in Sections 1 through 21
of the SPECIAL TERMS AND CONDITIONS
FOR CITY OF MIAMI EECBG AWARD,
Attached as Schedule E, Appendix IV
("Appendix IV"). Company and the Work shall
comply with Sections 22 through 30 of Appendix
IV.
IN WITNESS WHEREOF, the Parties hereto have executed this Schedule by and through their duly
authorized representatives as of the date first hereinabove written.
THE COMPANY:
FPL Services, LLC
By: Sam Forrest
Its: Vice -President
THE CUSTOMER:
City of Miami
By: Carlos A. Migoya
Its: City Manager
Attest.
Priscilla A. Thompson
City Clerk
Approved as to insurance requirements: Approved as to legal form and correctness:
Gary Reshefsky, Interim Director Julie O. Bru
Risk Management Division, City Attorney
4
SCHEDULE
APPENDIXI- APPROVED ECOs
Refer to City of Miami Phase 1 — IGA
Dated May 20, 2010
SCHEDULE E
APPENDIX II - SERVICE SPECIFICATIONS
Refer to City of Miami Phase 1 — IGA
Dated May 20, 2010
SCHEDULE E
APPENDIX III — DRAW SCHEDULE
Payment Milestone
Amount Due
Design and Development of IGA
$100,000
30% Completion of Construction
$135,062
75% Completion of Construction
$352,592
90% Completion of Construction
$117,531
Execution of Certificate of Final Acceptance $78,354
Total
$783,539
For purposes of this Draw Schedule, the percentage of completion of construction set forth above will be
based on the percentage of completion of construction as set forth by actual invoices and mutually
agreed upon between the Company and Customer.
SCHEDULE E
APPENDIX IV — Preliminary Construction Schedule
See attached pdf file
City of Miami Phase T - Preliminary Conshaclion Schedule
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SCHEDULE E
APPENDIX V — Construction Cancellation Schedule
Description
Cost
Feasibility Study
$100,000
Mobilization Fees
$75,000
Month 1 -- Major Material
$200,000
Month 2 -- Labor, Misc Material
$100,000
Month 3 -- Labor, Misc Material
$50,000
Month 4 -- Labor, Misc Material
$50,000
Month 5 -- Labor, Misc Material
$40,000
Month 6 -- Labor, Misc Material
$40,000
Month 7 -- Labor, Misc Material
$12,500
Month 8 -- Labor, Misc Material
$12,500
Month 9 -- Labor, Misc Material
$12,500
Month 10 -- Labor, Misc Material
$12,500
Month 11 -- Labor, Misc Material
$78,539
Total Project Cost $783,539
E
SCHEDULE E
APPENDIX VI — SPECIAL TERMS AND CONDITIONS FOR CITY OF MIAMI EECBG AWARD
Number Subiect
I.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28
29
30.
f.`�7 xy /\ /I<I Y �i�u i.`7_\►`1Z�Z�]►`I1l Y Y [fl►`f.9
Table of Contents
RESOLUTION OF CONFLICTING CONDITIONS................................................................................11
AWARD AGREEMENT TERMS AND CONDITIONS..........................................................................
11
ELECTRONIC AUTHORIZATION OF AWARD DOCUMENTS.........................................................11
PAYMENT PROCEDURES - ADVANCES THROUGH THE AUTOMATED STANDARD
APPLICATION FOR PAYMENTS (ASAP) SYSTEM............................................................................1
I
CEILING ON ADMINISTRATIVE COSTS.............................................................................................12
LIMITATIONS ON USE OF FUNDS.......................................................................................................12
INDIRECT COSTS AND FRINGE BENEFITS ARE NOT REIMBURSABLE.....................................12
PRE -AWARD COSTS..............................................................................................................................12
USE OF PROGRAM INCOME.................................................................................................................12
STATEMENT OF FEDERAL STEWARDSHIP......................................................................................13
SITEVISITS..............................................................................................................................................13
REPORTING REQUIREMENTS..............................................................................................................
13
PUBLICATIONS.......................................................................................................................................13
FEDERAL, STATE, AND MUNICIPAL REQUIREMENTS..................................................................14
LOBBYING RESTRICTIONS..................................................................................................................14
STAGEDDISBURSEMENT....................................................................................................................14
NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) REQUIREMENTS......................................14
HISTORIC PRESERVATION..................................................................................................................15
WASTESTREAM.....................................................................................................................................16
DECONTAMINATION AND/OR DECOMMISSIONING (D&D) COSTS............................................16
SUBCONTRACT/SUBGRANT APPROVALS........................................................................................16
ADVANCE UNDERSTANDING CONCERNING PUBLICLY FINANCED ENERGY
IMPROVEMENT PROGRAMS................................................................................................................17
SPECIAL PROVISIONS RELATING TO WORK FUNDED UNDER AMERICAN RECOVERY
AND REINVESTMENT ACT OF 2009 (May 2009)................................................................................17
REPORTING AND REGISTRATION REQUIREMENTS UNDER SECTION 1512 OF THE
RECOVERYACT.....................................................................................................................................21
NOTICE REGARDING THE PURCHASE OF AMERICAN -MADE EQUIPMENT AND
PRODUCTS -- SENSE OF CONGRESS..................................................................................................21
REQUIRED USE OF AMERICAN IRON, STEEL; AND MANUFACTURED GOODS —
SECTION 1605 OF THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 ..............21
REQUIRED USE OF AMERICAN IRON, STEEL, AND MANUFACTURED GOODS
(COVERED UNDER INTERNATIONAL AGREEMENTS) — SECTION 1605 OF THE
AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 .......................................................24
WAGE RATE REQUIREMENTS UNDER SECTION 1606 OF THE RECOVERY ACT .....................28
RECOVERY ACT TRANSACTIONS LISTED IN SCHEDULE OF EXPENDITURES OF
FEDERAL AWARDS AND RECIPIENT RESPONSIBILITIES FOR INFORMING
SUBRECIPIENTS.....................................................................................................................................28
DAVIS-BACON ACT REQUIREMENTS................................................................................................29
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1. RESOLUTION OF CONFLICTING CONDITIONS
Any apparent inconsistency between Federal statutes and regulations and the terms and conditions
contained in this award must be referred to the DOE Award Administrator for guidance.
2. AWARD AGREEMENT TERMS AND CONDITIONS
This award/agreement consists of the Assistance Agreement, plus the following:
a. Special Terms and Conditions.
b. Attachments:
Attachment Number Title
I. Statement of Project Objectives
2. Federal Assistance Reporting Checklist and Instructions
3. Budget Pages (SF 424A)
c. DOE Assistance Regulations, 10 CFR Part 600 at htro:Hecfr.gpoaccess. gov.
d. Application/proposal as approved by DOE.
e. National Policy Assurances to Be Incorporated as Award Terms in effect on date of award at
http://management.energy.goy/business doe/1374.htm.
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Acknowledgement of award documents by the Recipient's authorized representative through electronic
systems used by the Department of Energy, specifically FedConnect, constitutes the Recipient's acceptance
of the terms and conditions of the award. Acknowledgement via FedConnect by the Recipient's authorized
representative constitutes the Recipient's electronic signature.
4. PAYMENT PROCEDURES - ADVANCES THROUGH THE AUTOMATED
STANDARD APPLICATION FOR PAYMENTS (ASAP) SYSTEM
a. Method of Payment. Payment will be made by advances through the Department of Treasury's ASAP
system. V
b. Requesting Advances. Requests for advances must be made through the ASAP system. You may submit
requests as frequently as required to meet your needs to disburse funds for the Federal share of project
costs. If feasible, you should time each request so that you receive payment on the same day that you
disperse funds for direct project costs and the proportionate share of any allowable indirect costs. If same-
day transfers are not feasible, advance payments must be as close to actual disbursements as
administratively feasible.
c. Adjusting payment requests for available cash. You must disburse any funds that are available from
repayments to and interest earned on a revolving fund, program income, rebates, refunds, contract
settlements, audit recoveries, credits, discounts, and interest earned on any of those funds before requesting
additional cash payments from DOE.
d. Payments. All payments are made by electronic funds transfer to the bank account identified on the ASAP
Bank Information Form that you filed with the U.S. Department of Treasury.
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5. CEILING ON ADMINISTRATIVE COSTS
a. Local government and Indian Tribe Recipients may not use more than 10 percent of amounts provided
under this program. or $75,000, whichever is greater (EISA Sec 545 (b)(3)(A)), for administrative
expenses, excluding the costs of meeting the reporting requirements under Title V, Subtitle E of EISA.
These costs should be captured and summarized for each activity under the Projected Costs Within Budget:
Administration.
b. Recipients are expected to manage their administrative costs. DOE will not amend an award solely to
provide additional funds for changes in administrative costs. The Recipient shall not be reimbursed on this
project for any final administrative costs that are in excess of the designated 10 percent administrative cost
ceiling. In addition. the Recipient shall neither count costs in excess of the administrative cost ceiling as
cost share, nor allocate such costs to other federally sponsored project, unless approved by the Contracting
Officer.
6. LIMITATIONS ON USE OF FUNDS
a. By accepting funds under this award, you agree that none of the funds obligated on the award shall be
expended, directly or indirectly, for gambling establishments, aquariums, zoos, golf courses or swimming
pools.
b. Local government and Indian tribe Recipients may not use more than 20 percent of the amounts provided
or $250.000, whichever is greater (EISA Sec 545 (b)(3)(11)), for the establishment of revolving loan funds.
c. Local government and Indian tribe Recipients may not use more than 20 percent of the amounts provided
or $250,000, whichever is greater (EISA Sec 545 (b)(3)(C)), for subgrants to nongovernmental
organizations for the purpose of assisting in the implementation of the energy efficiency and conservation
strategy of the eligible unit of local government or Indian tribe.
7. INDIRECT COSTS AND FRINGE BENEFITS ARE NOT REIMBURSABLE
The budget for this award does not include indirect costs or fringe benefits. Therefore, these expenses shall
not be charged to nor reimbursement requested for this project nor shall the indirect and fringe benefit costs
from this project be allocated to any other federally sponsored project. In addition, indirect costs or fringe
benefits shall not be counted as cost share unless approved by the Contracting Officer. This restriction does not
apply to sub-awardees' indirect or fringe benefit costs.
8. PRE-AWARD COSTS
You are entitled to reimbursement for costs incurred on or after February 17, 2009, as authorized by the pre-
award costs letter dated August 20, 2009, if such costs are allowable in accordance with the applicable Federal
cost principles referenced in 10 CFR Part 600.
9. USE OF PROGRAM INCOME
If you earn program income during the project period as a result of this award, you may add the program
income to the funds committed to the award and used to further eligible project objectives. V
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10. STATEMENT OF FEDERAL STEWARDSHIP
DOE will exercise normal Federal stewardship in overseeing the project activities performed under this award.
Stewardship activities include, but are not limited to, conducting site visits; reviewing performance and
financial reports; providing technical assistance and/or temporary intervention in unusual circumstances to
correct deficiencies which develop during the project; assuring compliance with terms and conditions; and
reviewing technical performance after project completion to ensure that the award objectives have been
accomplished.
11. SITE VISITS
DOE's authorized representatives have the right to make site visits at reasonable times to review project
accomplishments and management control systems and to provide technical assistance, if required: You must
provide, and must require your sub-awardees to provide, reasonable access to facilities, office space, resources,
and assistance for the safety and convenience of the government representatives in the performance of their
duties. All site visits and evaluations must be performed in a manner that does not unduly interfere with or
delay the work.
12. REPORTING REQUIREMENTS
a. Requirements. The reporting requirements for this award are identified on the Federal Assistance
Reporting Checklist, DOE F 4600.2, attached to this award. Failure to comply with these reporting
requirements is considered a material noncompliance with the terms of the award. Noncompliance may
result in withholding of future payments, suspension or termination of the current award, and withholding
of future awards. A willful failure to perform, a history of failure to perform, or unsatisfactory
performance of this and/or other financial assistance awards, may also result in a debarment action to
preclude future awards by Federal agencies.
b. Additional Recovery Act Reporting Requirements are found in the Provision below labeled: "REPORTING
AND REGISTRATION REQUIREMENTS UNDER SECTION 1512 OF THE RECOVERY ACT."
13. PUBLICATIONS
a. You are encouraged to publish or otherwise make publicly available the results of the work conducted
under the award.
b. An acknowledgment of DOE support and a disclaimer must appear in the publication of any material,
whether copyrighted or not, based on or developed under this project, as follows:
,4cknowledgn7ent: "This material is based upon work supported by the Department of Energy
[National Nuclear Security Administration] [add name(s) of other agencies, if applicable] under Award
Number(s) [enter the award number(s)]."
Disclaimer: "This report was prepared as an account of work sponsored by an agency of the United
States Government. Neither the United States Government nor any agency thereof, nor any of their
employees, makes any warranty, express or implied, or assumes any legal liability or responsibility for
the accuracy, completeness, or usefulness of any information, apparatus; product, or process disclosed,
or represents that its use would not infringe privately owned rights. Reference herein to any specific
commercial product, process, or service by trade name, trademark, manufacturer, or otherwise does not
necessarily constitute or imply its endorsement, recommendation, or favoring by the United States
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Government or any agency thereof The views and opinions of authors expressed herein do not
necessarily state or reflect those of the United States Government or any agency thereof."
14. FEDERAL, STATE, AND MUNICIPAL REQUIREMENTS
You must obtain any required permits and comply with applicable federal, state, and municipal laws, codes, and
regulations for work performed under this award.
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By accepting funds under this award, you agree that none of the funds obligated on the award shall be
expended, directly or indirectly, to influence congressional action on any legislation or appropriation matters
pending before Congress, other than to communicate to Members of Congress as described in 18 U.S.C. 1413.
This restriction is in addition to those prescribed elsewhere in statute and regulation.
16. STAGED DISBURSEMENT
a. The total funding allocation for this award, shown in Block 12 of the Assistance Agreement, will be
obligated in full with this action; however, funds will be released according to a staged disbursement
schedule. All funds must be expended within 36 months of the effective date of the award.
1. The initial disbursement of funds is 50% of the total funding allocation. The amount identified on
Page 2 of the Assistance Agreement will be released to the Recipient to begin work on the approved
activities listed in the Statement of Project Objectives. If conditions are included in the terms and
conditions of this award, upon satisfying the conditions, the Contracting Officer will lift the funding
restrictions associated with the conditions and release the remainder of the initial disbursement of
funds.
2. Project performance will be monitored and corrective action taken, as necessary to ensure acceptable
performance under this award. After one or more progress reviews, in which the Recipient must
demonstrate that it has made satisfactory progress on its activities; expended funds appropriately;
complied with reporting requirements; and created jobs, the Contracting Officer will approve the
release of the remaining balance of the total funding allocation.
b. No additional funds will be disbursed to the Recipient for payment, and DOE does not guarantee or assume
any obligation to reimburse costs incurred by the Recipient, until the requirements of each progress review
are met. Failure by the Recipient to demonstrate acceptable performance under this award will be deemed
a noncompliance pursuant to 10 CFR 600. If a noncompliance occurs, the Contracting Officer may
unilaterally terminate or suspend this award and deobligate the amounts obligated. In such case, the
Recipient shall not be reimbursed for costs incurred at the Recipient's risk, as described above.
17. NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) REQUIREMENTS
You are restricted from taking any action using Federal funds, which would have an adverse effect on the
environment or limit the choice of reasonable alternatives prior to DOE providing either a NEPA clearance or a
final NEPA decision regarding this project.
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If you move forward with activities that are not authorized for Federal funding by the DOE Contracting Officer
in advance of the final NTEPA decision, you are doing so at risk of not receiving Federal funding and such costs
may not be recognized as allowable cost share. V
DOE has made a conditional NEPA determination for this award, and funding for certain activities or tasks
under this award is contingent upon the final NEPA determination.
Miami Green Lab
Prohibited actions include: Demolition, construction, removal, installation or disposal activities; until such time
that Recipient complies with the Waste Stream and Historic Preservation clauses.
This restriction does not preclude Recipient from: (1) purchasing any necessary equipment or related materials;
or (2) conducting assessments, studies and other related administrative work.
Recipient shall ensure the safety and structural integrity of any repair; replacement, construction and/or
alteration performed under this project.
The NTEPA determination for the Miami Green Lab applies only to Energy Efficiency retrofits and upgrades.
Recipient is restricted from distributing Federal funds on any other activities pending: (1) further submission by
Recipient specifically identifying all activities authorized under this Program; and (2) a final NEPA
determination from DOE regarding those activities.
Energy Efficiency Retrofits in Existing City -Owned Buildings
Prohibited actions include: Demolition, construction, removal, installation or disposal activities, until such time
that Recipient complies with the Waste Stream and Historic Preservation clauses.
This restriction does not preclude Recipient from: (1) purchasing an), necessary equipment or related materials;
or (2) conducting assessments, studies and other related administrative work.
Recipient shall ensure the safety and structural integrity of any repair, replacement, construction and/or
alteration performed under this project.
18. HISTORIC PRESERVATION
Prior to the expenditure of Federal funds to alter any structure or site, the Recipient is required to comply with
the requirements of Section 106 of the National Historic Preservation Act (NI -IPA), consistent with DOE's 2009
letter of delegation of authority regarding the NHPA. Section 106 applies to historic properties that are listed in
or eligible for listing in the National Register of Historic Places. In order to fulfill the requirements of Section
106, the recipient must contact the State Historic Preservation Officer (SHPO), and, if applicable, the Tribal
Historic Preservation Officer (THPO), to coordinate the Section 106 review outlined in 36 CFR Part 500.
SHPO contact information is available at the following link: http://www.ncshno.ora/find/index.htm. THPO
contact information is available at the following link: hhu://u,,A-w.nathpo.orgimap.html .
Section 110(k) of the NHPA applies to DOE funded activities. Recipients shall avoid taking any action that
results in an adverse effect to historic properties pending compliance with Section 106.
Recipients should be aware that the DOE Contracting Officer will consider the recipient in compliance with
Section 106 of the NHPA only after the Recipient has submitted adequate background documentation to the
SHPO/THPO for its review, and the SHPO/THPO has provided written concurrence to the Recipient that it does
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not object to its Section 106 finding or determination. Recipient shall provide a copy of this concurrence to the
Contracting Officer.
19. WASTE STREAM
Prior to the expenditure of Federal funds to dispose of sanitary or hazardous waste, the Recipient is required to
provide documentation to the Project Officer demonstrating that it has prepared a disposal plan for sanitary or
hazardous waste generated by the proposed activities. Sanitary or hazardous waste includes, but is not limited
to, old light bulbs, lead ballasts, piping, roofing material, discarded equipment, debris, asbestos; etc.
The DOE Contracting Officer shall consider compliance with this clause complete only after the Recipient has
submitted adequate documentation to DOE for its review, and DOE has provided written approval to the
Recipient of its proposed plan to dispose of its sanitary or hazardous waste.
20. DECONTAMINATION AND/OR DECOMMISSIONING (D&D) COSTS
Notwithstanding any other provisions of this Agreement, the Government shall not be responsible for or have
any obligation to the Recipient for (i) Decontamination and/or Decommissioning (D&D) of any of the
Recipient's facilities; or (ii) any costs which may be incurred by the Recipient in connection with the D&D of
any of its facilities due to the performance of the work under this Agreement, whether said work was performed
prior to or subsequent to the effective date of the Agreement.
21. SUBCONTRACUSUBGRANT APPROVALS
a. In the original application, the subcontractor(s)/subuantee(s) were not proposed by the recipient. In order
to receive reimbursement for the costs associated with subcontractors/activities listed in the approved
Statement of Project Objectives (SOPO), each subcontract/subgrant must be approved by the DOE
Contracting Officer.
b. Upon the recipient's selection of the subcontractors)/subgrantee(s), and within 180 days of the award date
in Block 27 of the Assistance Agreement, the recipient shall provide the following information for each,
regardless of dollar amount:
- Name
- DUNS Number
- Award Amount
- Statement of work including applicable activities
- EF -I for all proposed activities
c. In addition to the information in paragraph b. above, for each subcontract/subgrant that has an estimated
cost greater than 25% of the Total Allocation or 51,000;000, whichever is less, the recipient must submit a
Statement of Objectives, SF424A Budget Information — Nonconstruction Programs, and Budget
Justification. The DOE Contracting Officer may require additional information concerning these
subcontract(s)/subgrant(s) prior to providing written approval.
d. No funds shall be expended on the subcontracts supporting the activities listed in the approved SOPO until
DOE approval is provided. DOE does not guarantee or assume any obligation to reimburse costs incurred
by the Recipient or subcontractor for these activities, until approval is provided in writing by the
Contracting Officer.
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e. Upon written approval by the Contracting Officer, the Recipient may then receive payment for the
activities listed in the approved SOPO for allowable costs incurred in accordance with the payment
provisions contained in the Special Terms and Conditions of this agreement.
22. ADVANCE UNDERSTANDING CONCERNING PUBLICLY FINANCED
ENERGY IMPROVEMENT PROGRAMS
The parties recognize that the Recipient may use funds under this award for Property -Assessed Clean Energy
(PACE) loans, Sustainable Energy Municipal Financing, Clean Energy Assessment Districts, Energy Loan Tax
Assessment Programs (ELTAPS), or any other form or derivation of Special Taxing District whereby taxing
entities collect payments through increased tax assessments for energy efficiency and renewable energy
building improvements made by their constituents. The Department of Energy intends to publish 'Best
Practices" or other guidelines pertaining to the use of funds made available to the Recipient under this award
pertaining to the programs identified herein. By accepting this award, the Recipient agrees to incorporate, to the
maximum extent practicable, those Best Practices and other guidelines into any such program(s) within a
reasonable time after notification by DOE that the Best Practices or guidelines have been made available. The
Recipient also agrees, by its acceptance of this award, to require its sub -recipients to incorporate to the
maximum extent practicable the best practices and other guideline into any such program used by the sub -
recipient.
23. SPECIAL PROVISIONS RELATING TO WORK FUNDED UNDER AMERICAN
RECOVERY AND REINVESTMENT ACT OF 2009 (May 2009)
Preamble
The American Recovery and Reinvestment Act of 2009, Pub. L. 111-5, (Recovery Act) was enacted to
preserve and create jobs and promote economic recovery, assist those most impacted by the recession, provide
investments needed to increase economic efficiency by spurring technological advances in science and health,
invest in transportation, environmental protection, and other infrastructure that will provide long-term economic
benefits, stabilize State and local government budgets, in order to minimize and avoid reductions in essential
services and counterproductive State and local tax increases. Recipients shall use grant funds in a manner that
maximizes job creation and economic benefit.
The Recipient shall comply with all terms and conditions in the Recovery Act relating generally to governance,
accountability, transparency, data collection and resources as specified in Act itself and as discussed below.
Recipients should begin planning activities for their first tier sub -recipients, including obtaining a DUNS
number (or updating the existing DUNS record), and registering with the Central Contractor Registration
(CCR).
Be advised that Recovery Act funds can be used in conjunction with other funding as necessary to complete
projects, but tracking and reporting must be separate to meet the reporting requirements of the Recovery Act
and related guidance. For projects funded by sources other than the Recovery Act, Contractors must keep
separate records for Recovery Act funds and to ensure those records comply with the requirements of the Act.
The Government has not fully developed the implementing instructions of the Recovery Act, particularly
concerning specific procedural requirements for the new reporting requirements. The Recipient will be
provided these details as they become available. The Recipient must comply with all requirements of the Act.
If the recipient believes there is any inconsistency between ARRA requirements and current award terms and
conditions, the issues will be referred to the Contracting Officer for reconciliation.
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Definitions
For purposes of this clause, Covered Funds means funds expended or obligated from appropriations under the
American Recovery and Reinvestment Act of 2009, Pub. L. 111-5. Covered Funds will have special accounting
codes and will be identified as Recovery Act funds in the Brant, cooperative agreement or TIA and/or
modification using Recovery Act funds. Covered Funds must be reimbursed by September 30, 2015.
Non -Federal employer means any employer with respect to covered funds -- the contractor, subcontractor,
grantee, or recipient, as the case may be, if the contractor, subcontractor, grantee, or recipient is an employer;
and any professional membership organization, certification of other professional body, any agent or licensee of
the Federal government, or any person acting directly or indirectly in the interest of an employer receiving
covered funds; or with respect to covered funds received by a State or local government, the State or local
government receiving the funds and any contractor or subcontractor receiving the funds and any contractor or
subcontractor of the State or local government; and does not mean any department, agency, or other entity of
the federal government.
Recipient means any entity that receives Recovery Act funds directly from the Federal government (including
Recovery Act funds received through grant, loan, or contract) other than an individual and includes a State that
receives Recovery Act Funds.
Special Provisions
A. Flow Down Requirement
Recipients must include these special terms and conditions in any subaward.
B. Segregation of Costs
Recipients must segregate the obligations and expenditures related to funding under the Recovery Act.
Financial and accounting systems should be revised as necessary to segregate, track and maintain these
funds apart and separate from other revenue streams. No part of the funds from the Recovery Act shall be
commingled with any other funds or used for a purpose other than that of making payments for costs
allowable for Recovery Act projects.
C. Prohibition on Use of Funds
None of the funds provided under this agreement derived from the American Recovery and Reinvestment
Act of 2009, Pub. L. 111-5, may be used by any State or local government, or any private entity, for any
casino or other gambling establishment, aquarium, zoo, golf course, or swimming pool.
D. Access to Records
With respect to each financial assistance agreement awarded utilizing at least some of the funds
appropriated or otherwise made available by the American Recovery and Reinvestment Act of 2009, Pub.
L. 111-5, any representative of an appropriate inspector general appointed under section 3 or 8G of the
Inspector General Act of 1988 (5 U.S.C. App.) or of the Comptroller General is authorized --
(1) to examine any records of the contractor or grantee, any of its subcontractors or subgrantees, or any
State or local agency administering such contract that pertain to, and involve transactions that relate to; the
subcontract, subcontract, grant; or subgrant; and
(2) to interview any officer or employee of the contractor, grantee, subgrantee, or agency regarding such
transactions.
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E. Publication
An application may contain technical data and other data, including trade secrets and/or privileged or
confidential information, which the applicant does not want disclosed to the public or used by the
Government for any purpose other than the application. To protect such data, the applicant should
specifically identify each page including each line or paraeTaph thereof containing the data to be protected
and mark the cover sheet of the application with the following Notice as well as referring to the Notice on
each page to which the Notice applies:
Notice of Restriction on Disclosure and Use of Data
The data contained in pages ---- of this application have been submitted in confidence and contain trade
secrets or proprietary information, and such data shall be used or disclosed only for evaluation purposes,
provided that if this applicant receives an award as a result of or in connection with the submission of this
application, DOE shall have the right to use or disclose the data here to the extent provided in the award.
This restriction does not limit the Government's right to use or disclose data obtained without restriction
from any source, including the applicant. V
Information about this agreement will be published on the Internet and linked to the website
www.recovery.gov, maintained by the Accountability and Transparency Board. The Board may exclude
posting contractual or other information on the website on a case-by-case basis when necessary to protect
national security or to protect information that is not subject to disclosure under sections 552 and 552a of
title 5, United States Code.
F. Protecting State and Local Government and Contractor Whistleblowers.
The requirements of Section 1553 of the Act are summarized below. They include, but are not limited to:
Prohibition on Reprisals: An employee of any non -Federal employer receiving covered funds under the
American Recovery and Reinvestment Act of 2009, Pub. L. 111-5, may not be discharged, demoted, or
otherwise discriminated against as a reprisal for disclosing, including a disclosure made in the ordinary
course of an employee's duties, to the Accountability and Transparency Board, an inspector general, the
Comptroller General, a member of Congress, a State or Federal regulatory or law enforcement agency, a
person with supervisory authority over the employee (or other person working for the employer who has
the authority to investigate, discover or terminate misconduct), a court or grant jury, the head of a Federal
agency, or their representatives information that the employee believes is evidence of:
gross management of an agency contract or grant relating to covered funds;
a gross waste of covered funds;
a substantial and specific danger to public health or safety related to the implementation or use of covered
funds;
an abuse of authority related to the implementation or use of covered funds; or
as violation of law, rule, or regulation related to an agency contract (including the competition for or
negotiation of a contract) or grant, awarded or issued relating to covered funds.
Agency Action: Not later than 30 days after receiving an inspector general report of an alleged reprisal, the
head of the agency shall determine whether there is sufficient basis to conclude that the non -Federal
employer has subjected the employee to a prohibited reprisal. The agency shall either issue an order
denying relief in whole or in part or shall take one or more of the following actions:
Order the employer to take affirmative action to abate the reprisal.
Order the employer to reinstate the person to the position that the person held before the reprisal, together
with compensation including back pay, compensatory damages, employment benefits, and other terms and
conditions of employment that would apply to the person in that position if the reprisal had not been taken.
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- Order the employer to pay the employee an amount equal to the aggregate amount of all costs and
expenses (including attorneys' fees and expert witnesses' fees) that were reasonably incurred by the
employee for or in connection with, bringing the complaint regarding the reprisal, as determined by the
head of a court of competent jurisdiction.
Nonenforceability of Certain Provisions Waiving Rights and remedies or Requiring Arbitration: Except as
provided in a collective bargaining agreement, the rights and remedies provided to aggrieved employees by
this section may not be waived by any agreement, policy, form, or condition of employment, including any
predispute arbitration agreement. No predispute arbitration agreement shall be valid or enforceable if it
requires arbitration of a dispute arising out of this section.
Requirement to Post Notice of Rights and Remedies: Any employer receiving covered funds under the
American Recovery and Reinvestment Act of 2009, Pub. L. 111-5, shall post notice of the rights and
remedies as required therein. (Refer to section 1553 of the American Recovery and Reinvestment Act of
2009, Pub. L. 111-5, www.Recovery.gov, for specific requirements of this section and prescribed language
for the notices.). V
G. Reserved
H. False Claims Act
Recipient and sub -recipients shall promptly refer to the DOE or other appropriate Inspector General any
credible evidence that a principal, employee, agent, contractor, sub -grantee, subcontractor or other person
has submitted a false claim under the False Claims Act or has committed a criminal or civil violation of
laws pertaining to fraud, conflict of interest, bribery, gratuity or similar misconduct involving those funds.
I. Information in Support of Recovery Act Reporting
Recipient may be required to submit backup documentation for expenditures of funds under the Recovery
Act including such items as timecards and invoices. Recipient shall provide copies of backup
documentation at the request of the Contracting Officer or designee.
J. Availability of Funds
Funds obligated to this award are available for reimbursement of costs until 36 months after the award date
K. Additional Funding Distribution and Assurance of Appropriate Use of Funds
Certification by Governor — For funds provided to any State or agency thereof by the American
Reinvestment and Recovery Act of 2009, Pub. L. 111-5, the Governor of the State shall certify that: 1) the
state will request and use funds provided by the Act; and 2) the funds will be used to create jobs and
promote economic growth.
Acceptance by State Legislature -- If funds provided to any State in any division of the Act are not accepted
for use by the Governor, then acceptance by the State legislature, by means of the adoption of a concurrent
resolution, shall be sufficient to provide funding to such State.
Distribution -- After adoption of a State legislature's concurrent resolution, funding to the State will be for
distribution to local govemments, councils of government, public entities, and public-private entities within
the State either by formula or at the State's discretion.
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L. Certifications
With respect to funds made available to State or local governments for infrastructure investments under the
American Recovery and Reinvestment Act of 2009, Pub. L. 111-5, the Governor, mayor, or other chief
executive, as appropriate, certified by acceptance of this award that the infrastructure investment has
received the full review and vetting required by law and that the chief executive accepts responsibility that
the infrastructure investment is an appropriate use of taxpayer dollars. Recipient shall provide an
additional certification that includes a description of the investment, the estimated total cost, and the
amount of covered funds to be used for posting on the Internet. A State or local agency may not receive
infrastructure investment funding from funds made available by the Act unless this certification is made
arid posted.
24. REPORTING AND REGISTRATION REQUIREMENTS UNDER SECTION 1512 OF
THE RECOVERY ACT
(a) This award requires the recipient to complete projects or activities which are funded under the American
Recovery and Reinvestment Act of 2009 (Recovery Act) and to report on use of Recovery Act funds provided
through this award. Information from these reports will be made available to the public.
(b) The reports are due no later than ten calendar days after each calendar quarter in which the Recipient
receives the assistance award funded in whole or in part by the Recovery Act.
(c) Recipients and their first-tier subrecipients must maintain current registrations in the Central Contractor
Registration (http://mn4,u�.ccr.gov) at all times during which they have active federal awards funded with
Recovery Act funds. A Dun and Bradstreet Data Universal Numbering System (DUNS) Number
(http://www.dnb.com) is one of the requirements for registration in the Central Contractor Registration.
(d) The recipient shall report the information described in section 1512(c) of the Recovery Act using the
reporting instructions and data elements that will be provided online at http://Unvw.FederalReportii7g.gov and
ensure that any information that is pre -filled is corrected or updated as needed.
25. NOTICE REGARDING THE PURCHASE OF AMERICAN -MADE
EQUIPMENT AND PRODUCTS -- SENSE OF CONGRESS
It is the sense of the Congress that, to the greatest extent practicable, all equipment and products purchased with
funds made available under this award should be American-made.
*Special Note: Defmitization of the Provisions entitled, "REQUIRED USE OF AMERICAN IRON, STEEL,
AND MANUFACTURED GOODS — SECTION 1605 OF THE AMERICAN RECOVERY AND
REINVESTMENT ACT OF 2009" and "REQUIRED USE OF A MRICAN IRON, STEEL, AND
MANUFACTURED GOODS (COVERED UNDER INTERNATIONAL AGREEMENTS) — SECTION 1605
OF THE AMERICAN RECOVERY AND REINTVESTMENT ACT OF 2009" will be done upon definition and
review of final activities.
26. REQUIRED USE OF AMERICAN IRON, STEEL, ANTD MANUFACTURED
GOODS - SECTION 1605 OF THE AMERICAN RECOVERY AND
REINVESTMENT ACT OF 2009
21
(a) Definitions. As used in this award term and condition—
(1) Manufactured good means a good brought to the construction site for incorporation into the building or
work that has been—
(i) Processed into a specific form and shape; or
(ii) Combined with other raw material to create a material that has different properties than the properties of the
individual raw materials.
(2) Public building and public work means a public building of, and a public work of a governmental entity
(the United States; the District of Columbia; commonwealths, territories. and minor outlying islands of the
United States; State and local govem.-nents; and multi -State, regional, or interstate entities which have
governmental functions). These buildings and works may include, without limitation, bridges, dams, plants,
highways, parkways, streets, subways, tunnels, sewers, mains, power lines, pumping stations, heavy generators,
railways, airports, terminals, docks, piers, wharves, ways, lighthouses, buoys, jetties, breakwaters, levees, and
canals, and the construction, alteration, maintenance, or repair of such buildings and works.
(3) Steel means an alloy that includes at least 50 percent iron, between .02 and 2 percent carbon, and may
include other elements.
(b) Domestic preference. (1) This award term and condition implements Section 1605 of the American
Recovery and Reinvestment Act of 2004 (Recovery Act) (Pub. L. 111-5), by requiring that all iron, steel, and
manufactured goods used in the project are produced in the United States except as provided in paragraph (b)(3)
and (b)(4) of this section and condition.
(2) This requirement does not apply to the material listed by the Federal Government as follows:
To Be Determined
(3) The award official may add other iron, steel, and/or manufactured goods to the list in paragraph (b)(2) of
this section and condition if the Federal Government determines that—
(i) The cost of the domestic iron, steel, and/or manufactured goods would be unreasonable. The cost of domestic
iron, steel, or manufactured goods used in the project is unreasonable when the cumulative cost of such material
will increase the cost of the overall project by more than 25 percent;
(ii) The iron, steel, and/or manufactured good is not produced, or manufactured in the United States in sufficient
and reasonably available quantities and of a satisfactory quality; or
(iii) The application of the restriction of section 1605 of the Recovery Act would be inconsistent with the public
interest.
(c) Request for determination of inapplicability of Section 1605 of the Recovery Act. (1)(i) Any recipient
request to use foreign iron, steel, and/or manufactured goods in accordance with paragraph (b)(3) of this section
shall include adequate information for Federal Government evaluation of the request, includin.
(A) A description of the foreign and domestic iron, steel, and/or manufactured goods
22
(B) Unit of measure;
(C) Quantity;
(D) Cost:
(E) Time of deliver), or availability;
(F) Location of the project;
(G) Name and address of the proposed supplier; and
(H) A detailed justification of the reason for use of foreign iron, steel, and/or manufactured goods cited in
accordance with paragraph (b)(3) of this section.
(ii) A request based on unreasonable cost shall include a reasonable survey of the market and a completed cost
comparison table in the format in paragraph (d) of this section.
(iii) The cost of iron, steel, and/or manufactured goods material shall include all delivery costs to the
construction site and any applicable duty.
(iv) Any recipient request for a determination submitted after Recovery Act funds have been obligated for a
project for construction, alteration, maintenance, or repair shall explain why the recipient could not reasonably
foresee the need for such determination and could not have requested the determination before the funds were
obligated. If the recipient does not submit a satisfactory explanation, the award official need not make a
determination.
(2) If the Federal Government determines after funds have been obligated for a project for construction,
alteration, maintenance, or repair that an exception to section 1605 of the Recovery Act applies, the award
official will amend the award to allow use of the foreign iron, steel, and/or relevant manufactured goods. When
the basis for the exception is nonavailability or public interest, the amended award shall reflect adjustment of
the award amount, redistribution of budgeted funds, and/or other actions taken to cover costs associated with
acquiring or using the foreign iron, steel, and/or relevant manufactured goods. When the basis for the exception
is the unreasonable cost of the domestic iron, steel, or manufactured goods, the award official shall adjust the
award amount or redistribute budgeted funds by at least the differential established in 2 CFR 176.110(a).
(3) Unless the Federal Government determines that an exception to section 1605 of the Recovery Act applies,
use of foreign iron, steel, and/or manufactured goods is noncompliant with section 1605 of the American
Recovery and Reinvestment Act.
(d) Data. To permit evaluation of requests under paragraph (b) of this section based on unreasonable cost, the
Recipient shall include the following information and any applicable supporting data based on the survey of
suppliers:
73)
Foreign and Domestic Items Cost Comparison
Description
Unit of measure
Quantity
Cost
(dollars)*
Item I.
Foreign steel, iron, or manufactured good
Domestic steel; iron, or manufactured good
Item 2:
Foreign steel, iron, or manufactured good
Domestic steel. iron. or manufactured good
List name; address, telephone number; email address, and contact for suppliers surveyed. Attach copy of
response; if oral, attach summary.
Include other applicable supporting information.
*Include all delivery costs to the construction site.
27. REQUIRED USE OF AMERICAN IRON, STEEL, AND NLA UFACTURED
GOODS (COVERED UNDER INTERNATIONAL AGREEMENTS) — SECTION
1605 OF THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009
(a) Definitions. As used in this award term and condition—
Designated country— (1) A World Trade Organization Government Procurement Agreement country (Aruba,
Austria, Belgium, Bulgaria, Canada, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany,
Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, Italy, Japan, Korea (Republic of), Latvia, Liechtenstein,
Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Singapore, Slovak Republic,
Slovenia, Spain, Sweden, Switzerland, and United Kingdom;
(2) A Free Trade Agreement (FTA) country (Australia, Bahrain, Canada, Chile, Costa Rica, Dominican
Republic, El Salvador, Guatemala, Honduras, Israel, Mexico, Morocco, Nicaragua, Oman, Peru, or Singapore);
or
(3) A United States -European Communities Exchange of Letters (May 15, 1995) country: Austria, Belgium,
Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland,
Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovak Republic,
Slovenia, Spain, Sweden, and United Kingdom.
Designated country iron, steel, and/or manufactured goods — (1) Is wholly the growth, product, or
manufacture of a designated country; or
24
(2) In the case of a manufactured good that consist in whole or in part of materials from another country, has
been substantially transformed in a designated country into a new and different manufactured good distinct
from the materials from which it was transformed.
Domestic iron, steel. and/or manufactured good — (1) Is wholly the growth, product, or manufacture of the
United States; or
(2) In the case of a manufactured good that consists in whole or in part of materials from another country, has
been substantially transformed in the United States into a new and different manufactured good distinct from
the materials from which it was transformed. There is no requirement with regard to the origin of components
or subcomponents in manufactured goods or products, as long as the manufacture of the goods occurs in the
United States.
Foreign iron, steel, and/or manufactured good means iron, steel and/or manufactured good that is not domestic
or designated country iron, steel, and/or manufactured good.
Manufactured good means a good brought to the construction site for incorporation into the building or work
that has been— V
(1) Processed into a specific form and shape; or
(2) Combined with other raw material to create a material that has different properties than the properties of the
individual raw materials.
Public building and public Mork means a public building of, and a public work of, a governmental entity (the
United States; the District of Columbia; commonwealths, territories, and minor outlying islands of the United
States; State and local governments; and multi -State, regional, or interstate entities which have governmental
functions). These buildings and works may include, without limitation, bridges, dams, plants, highways,
parkways, streets, subways, tunnels, sewers, mains, power lines, pumping stations, heavy generators, railways,
airports, terminals, docks, piers, wharves, ways, lighthouses; buoys, jetties, breakwaters, levees, and canals, and
the construction, alteration, maintenance, or repair of such buildings and works.
Steel means an alloy that includes at least 50 percent iron, between .02 and 2 percent carbon, and may include
other elements.
(b) Iron, steel, and manufactured goods. (1) The award term and condition described in this section
implements—
(i) Section 1605(a) of the American Recovery and Reinvestment Act of 2004 (Pub. L. 111-5) (Recovery Act),
by requiring that all iron, steel, and manufactured goods used in the project are produced in the United States;
and
(ii) Section 1605(d), which requires application of the Buy American requirement in a manner consistent with
U.S. obligations under international agreements. The restrictions of section 1605 of the Recover; Act do not
apply to designated country iron, steel, and/or manufactured goods. The Buy American requirement in section
1605 shall not be applied where the iron, steel or manufactured goods used in the project are from a Part), to an
international agreement that obligates the recipient to treat the goods and services of that Party the same as
domestic Goods and services. This obligation shall only apply to projects with an estimated value of $7,44.3,000
or more.
25
(2) The recipient shall use only domestic or designated country iron, steel, and manufactured goods in
performing the work funded in whole or part with this award, except as provided in paragraphs (b)(3) and (b)(4)
of this section.
(3) The requirement in paragraph (b)(2) of this section does not apply to the iron, steel, and manufactured goods
listed by the Federal Government as follows:
To Be Determined
(4) The award official may add other iron; steel, and manufactured goods to the list in paragraph (b)(3) of this
section if the Federal Government determines that—
(i) The cost of domestic iron, steel, and/or manufactured goods would be unreasonable. The cost of domestic
iron, steel, and/or manufactured goods used in the project is unreasonable when the cumulative cost of such
material will increase the overall cost of the project by more than 25 percent;
(ii) The iron, steel, and/or manufactured good is not produced, or manufactured in the United States in sufficient
and reasonably available commercial quantities of a satisfactory quality; or
(iii) The application of the restriction of section 1605 of the Recovery Act would be inconsistent with the public
interest.
(c) Request for determination of inappiicabiiity of section 1605 of the Recovery Act or the Buy American Act.
(1)(i) Any recipient request to use foreign iron, steel, and/or manufactured goods in accordance with paragraph
(b)(4) of this section shall include adequate information for Federal Government evaluation of the request,
including—
(A) A description of the foreign and domestic iron, steel, and/or manufactured goods;
(B) Unit of measure;
(C) Quantity;
(D) Cost;
(E) Time of delivery or availability;
(F) Location of the project;
(G) Name and address of the proposed supplier; and
(H) A detailed justification of the reason for use of foreign iron, steel, and/or manufactured goods cited in
accordance with paragraph (b)(4) of this section.
(ii) A request based on unreasonable cost shall include a reasonable survey of the market and a completed cost
comparison table in the format in paragraph (d) of this section.
26
(iii) The cost of iron, steel, or manufactured goods shall include all delivery costs to the construction site and
any applicable duty.
(iv) Any recipient request for a determination submitted after Recovery Act funds have been obligated for a
project for construction, alteration, maintenance, or repair shall explain why the recipient could not reasonably
foresee the need for such determination and could not have requested the determination before the funds were
obligated. If the recipient does not submit a satisfactory explanation, the award official need not make a
determination.
(2) If the Federal Government determines after funds have been obligated for a project for construction,
alteration, maintenance, or repair that an exception to section 1605 of the Recovery Act applies, the award
official will amend the award to allow use of the foreign iron, steel, and/or relevant manufactured goods. When
the basis for the exception is nonavailability or public interest, the amended award shall reflect adjustment of
the award amount, redistribution of budgeted funds, and/or other appropriate actions taken to cover costs
associated with acquiring or using the foreign iron, steel, and/or relevant manufactured goods. When the basis
for the exception is the unreasonable cost of the domestic iron, steel, or manufactured goods, the award official
shall adjust the award amount or redistribute budgeted funds; as appropriate, by at least the differential
established in 2 CFR 176.1 10(a).
(3) Unless the Federal Government determines that an exception to section 1605 of the Recovery Act applies,
use of foreign iron, steel, and/or manufactured goods other than designated country iron, steel, andlor
manufactured goods is noncompliant with the applicable Act.
(d) Data. To permit evaluation of requests under paragraph (b) of this section based on unreasonable cost, the
applicant shall include the following information and any applicable supporting data based on the survey of
suppliers:
Foreign and Domestic Items Cost Comparison
Description
Unit of measure
Quantity
Cost
(dollars)*
Item 1:
Foreign steel, iron, or manufactured good
Domestic steel, iron, or manufactured good
Item 2.
Foreign steel, iron, or manufactured good
Domestic steel, iron, or manufactured good
List name, address, telephone number, email address, and contact for suppliers surveyed. Attach copy of
response; if oral, attach summary.
Include other applicable supporting information.
*Include all delivery costs to the construction site.
27
28. WAGE RATE REQUIREMENTS UNDER SECTION 1606 OF THE RECOVERY
ACT
(a) Section 1606 of the Recovery Act requires that all laborers and mechanics employed by contractors and
subcontractors on projects funded directly by or assisted in whole or in part by and through the Federal
Government pursuant to the Recovery Act shall be paid wages at rates not less than those prevailing on projects
of a character similar in the locality as determined by the Secretary of Labor in accordance with subchapter IV
of chapter 31 of title 40, United States Code.
Pursuant to Reorganization Plan No. 14 and the Copeland Act, 40 U.S.C. 3145, the Department of Labor has
issued regulations at 29 CFR parts I, 3, and 5 to implement the Davis -Bacon and related Acts. Regulations in 29
CFR 5.5 instruct agencies concerning application of the standard Davis -Bacon contract clauses set forth in that
section. Federal agencies providing grants, cooperative agreements, and loans under the Recovery Act shall
ensure that the standard Davis -Bacon contract clauses found in 29 CFR 5.5(a) are incorporated in any resultant
covered contracts that are in excess of $2,000 for construction, alteration or repair (including painting and
decorating).
(b) For additional guidance on the wage rate requirements of section 1606, contact your awarding agency.
Recipients of grants, cooperative agreements and loans should direct their initial inquiries concerning the
application of Davis -Bacon requirements to a particular federally assisted project to the Federal agency funding
the project. The Secretary of Labor retains final coverage authority under Reorganization Plan Number 14.
29. RECOVERY ACT TRANSACTIONS LISTED IN SCHEDULE OF
EXPENDITURES OF FEDERAL AWARDS AND RECIPIENT
RESPONSIBILITIES FOR INFORMING SUBRECIPIENTS
(a) To maximize the transparency and accountability of funds authorized under the American Recovery and
Reinvestment Act of 2009 (Pub. L. 111-5) (Recovery Act) as required by Congress and in accordance with 2
CFR 215.21 "Uniform Administrative Requirements for Grants and Agreements" and OMB Circular A-102
Common Rules provisions, recipients agree to maintain records that identify adequately the source and
application of Recovery Act funds. OMB Circular A-102 is available at
http://xni, 4,. whitehouse.gov/oinb/circulars/a102/a102. html.
(b) For recipients covered by the Single Audit Act Amendments of 1996 and OMB Circular A-133, "Audits of
States, Local Governments, and Non -Profit Organizations," recipients agree to separately identify the
expenditures for Federal awards under the Recovery Act on the Schedule of Expenditures of Federal Awards
(SEFA) and the Data Collection Form (SF—SAC) required by OMB Circular A-133. OMB Circular A-133 is
available at http://i+nv» Whitehouse.gov/oinblcirculai-slal331a]33.hnrsl, This shall be accomplished by
identifying expenditures for Federal awards made under the Recovery Act separately on the SEFA, and as
separate rows under Item 9 of Part III on the SF—SAC by CFDA number, and inclusion of the prefix "ARRA-"
in identifying the name of the Federal program on the SEFA and as the first characters in Item 9d of Part III on
the SF—SAC.
(c) Recipients agree to separately identify to each subrecipient, and document at the time of subaward and at the
time of disbursement of funds, the Federal award number, CFDA number, and amount of Recovery Act funds.
When a recipient awards Recovery Act funds for an existing program, the information furnished to
subrecipients shall distinguish,the subawards of incremental Recovery Act funds from regular subawards under
the existing program.
28
(d) Recipients agree to require their subrecipients to include on their SEFA information to specifically identify
Recovery Act funding similar to the requirements for the recipient SEFA described above. This information is
needed to allow the recipient to properly monitor subrecipient expenditure of ARRA funds as well as oversight
by the Federal awarding agencies, Offices of Inspector General and the Government Accountability Office,
30. DAVIS-BACON ACT REQUIREMENTS
Note: Where necessary to make the context of these articles applicable to this award, the term "Contractor"
shall mean 'Recipient" and the term "Subcontractor" shall mean "Subrecipient or Subcontractor" per the
following definitions.
Recipient means the organization, individual, or other entity that receives an award from DOE and is financially
accountable for the use of any DOE funds or property provided for the performance of the project, and is legally
responsible for carrying out the terms and conditions of the award.
Subrecipient means the legal entity to which a subaward is made and which is accountable to the recipient for
the use of the funds provided. The term may include foreign or international organizations (such as agencies of
the United Nations). V
Davis -Bacon Act
(a) Definition. --"Site of the work"--
(1) Means --
(i) The primary site of the work. The physical place or places where the construction called for in the award will
remain when work on it is completed; and
(ii) The secondary site of the work, if any. Any other site where a significant portion of the building or work is
constructed, provided that such site is --
(A) Located in the United States; and
(B) Established specifically for the performance of the award or project;
(2) Except as provided in paragraph (3) of this definition, includes any fabrication plants, mobile factories,
batch plants, borrow pits, job headquarters, tool yards, etc., provided --
(i) They are dedicated exclusively, or nearly so, to performance of the award or project; and
(ii) They are adjacent or virtually adjacent to the "primary site of the work" as defined in paragraph (a)(1)(i), or
the "secondary site of the work" as defined in paragraph (a)(1)(ii) of this definition;
(3) Does not include permanent home offices, branch plant establishments, fabrication plants, or tool yards of a
Contractor or subcontractor whose locations and continuance in operation are determined wholly without regard
to a particular Federal award or project. In addition, fabrication plants, batch plants, borrow pits, job
headquarters, yards, etc., of a commercial or material supplier which are established by a supplier of materials
for the project before opening of bids and not on the Project site, are not included in the "site of the work." Such
29
permanent, previously established facilities are not a part of the "site of the work" even if the operations for a
period of time may be dedicated exclusively or nearly so, to the performance of a award.
(b) (1) All laborers and mechanics employed or working upon the site of the work will be paid unconditionally
and not less often than once a week, and without subsequent deduction or rebate on any account (except such
payroll deductions as are permitted by regulations issued by the Secretary of Labor under the Copeland Act (29
CFR Part 3)), the full amount of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of
payment computed at rates not less than those contained in the wage determination of the Secretary of Labor
which is attached hereto and made a part hereof, or as may be incorporated for a secondary site of the work,
regardless of any contractual relationship which may be alleged to exist between the Contractor and such
laborers and mechanics. Any wage determination incorporated for a secondary site of the work shall be
effective from the first day on which work under the award was performed at that site and shall be incorporated
without any adjustment in award price or estimated cost. Laborers employed by the construction Contractor or
construction subcontractor that are transporting portions of the building or work between the secondary site of
the work and the primary site of the work shall be paid in accordance with the wage determination applicable to
the primary site of the work.
(2) Contributions made or costs reasonably anticipated for bona fide fringe benefits under section I (b)(2) of the
Davis -Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics,
subject to the provisions of paragraph (e) of this article; also, regular contributions made or costs incurred for
more than a weekly period (but not less often than quarterly) under plans, funds, or programs which cover the
particular weekly period, are deemed to be constructively made or incurred during such period.
(3) Such laborers and mechanics shall be paid not less than the appropriate wage rate and fringe benefits in the
wage determination for the classification of work actually performed, without regard to skill, except as provided
in the article entitled Apprentices and Trainees. Laborers or mechanics performing work in more than one
classification may be compensated at the rate specified for each classification for the time actually worked
therein; provided, that the employer's payroll records accurately set forth the time spent in each classification in
which work is performed.
(4) The wage determination (including any additional classifications and wage rates conformed under paragraph
(c) of this article) and the Davis -Bacon poster (ATHA 321) shall be posted at all times by the Contractor and its
subcontractors at the site of the work in a prominent and accessible place where it can be easily seen by the
workers.
(c) (1) The Contracting Officer shall require that any class of laborers or mechanics which is not listed in the
wage determination and which is to be employed under the award shall be classified in conformance with the
wage determination. The Contracting Officer shall approve an additional classification and wage rate and fringe
benefits therefore only when all the following criteria have been met:
(i) The work to be performed by the classification requested is not performed by a classification in the wage
determination.
(ii) The classification is utilized in the area by the construction industry.
(iii) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the
wage rates contained in the wage determination.
(2) If the Contractor and the laborers and mechanics to be employed in the classification (if known), or their
representatives and the Contracting Officer agree on the classification and wage rate (including the amount
designated for fringe benefits, where appropriate), a report of the action taken shall be sent by the Contracting
30
Officer to the Administrator of the
Wage and Hour Division
Employment Standards Administration
U.S. Department of Labor
Washington, DC 20210
The Administrator or an authorized representative will approve; modify, or disapprove every additional
classification action within 30 days of receipt and so advise the Contracting Officer or will notif;, the
Contracting Officer within the 30 -day period that additional time is necessary.
(3) In the event the Contractor, the laborers or mechanics to be employed in the classification, or their
representatives, and the Contracting Officer do not agree on the proposed classification and wage rate
(including the amount designated for fringe benefits, where appropriate), the Contracting Officer shall refer the
questions, including the views of all interested parties and the recommendation of the Contracting Officer, to
the Administrator of the Wage and Hour Division for determination. The Administrator, or an authorized
representative, will issue a determination within 30 days of receipt and so advise the Contracting Officer or will
notify the Contracting Officer within the 30 -day period that additional time is necessary.
(4) The wage rate (including fringe benefits, where appropriate) determined pursuant to subparagraphs (c)(2)
and (c)(3) of this article shall be paid to all workers performing work in the classification under this award from
the first day on which work is performed in the classification.
(d) Whenever the minimum wage rate prescribed in the award for a class of laborers or mechanics includes a
fringe benefit which is not expressed as an hourly rate, the Contractor shall either pay the benefit as stated in the
wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof.
(e) If the Contractor does not make payments to a trustee or other third person, the Contractor may consider as
part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona
fide fringe benefits under a plan or program; provided, that the Secretary of Labor has found, upon the written
request of the Contractor, that the applicable standards of the Davis -Bacon Act have been met. The Secretary of
Labor may require the Contractor to set aside in a separate account assets for the meeting of obligations under
the plan or program.
Rates of Wages - Prior Approval for Proceeding with Davis -Bacon Construction Activities
If the Recipient determines at any time that any construction, alteration, or repair activity as defined by 29 CFR
5.20) (httn://cfr.vIex.com/vid/5-)-definitions-19681309) will be performed during the course of the project, the
Recipient shall request approval from the Contracting Officer prior to commencing such work. If the
Contracting Officer concurs with the Recipient's determination, the Recipient must receive Contracting Officer
approval to proceed with such activity, and must comply with all applicable Davis -Bacon requirements, prior to
commencing such work. A modification to the award which incorporates the appropriate Davis -Bacon wage
rate determination(s) will constitute the Contracting Officer's approval to proceed. If the Contracting Officer
does not concur with the Recipient's determination, the Contracting Officer will so notify the Recipient in
writing.
31
Investment Grade Audit
City of Miami
May 20, 2010
Submitted bY.:
FPL;Serv'ices,SLC
6001 Village Blvd.
West Palm Beach, FL 33407-0768
David Harold Russell, Jr., PE
PE 42062
0 of A: 9264
A
2
x j
Where proven meets possible"
a9
Where proven meets possible"
Investment Grade Audit
Cite of Miami
The
The federal government launched the Energy Efficiency & Conservation Block Grant (EECBG)
program, funded by the American Recovery & Reinvestment Act (ARRA), to help entities create
and implement strategies to create jobs, reduce total energy use; and improve energy efficiency
in the building and transportation sectors. As a 2009 recipient of this grant, the City of Miami
committed to:
• Improving energy efficiency in the building sector
• Reducing fossil fuel emissions in a manner that is ----
environmentally sustainable and, to the maximum extent
practicable, maximize benefits for local and regional
communities
.• Reducing the total energy consumption
.�iveJurve. beeriPresenietl rvilh xt,great
>oppnrruriitp;ahirti7tsaa:'i17c�merierur .
)t�cctveiy. niaclI7erituestii2erit� cl
(MCRA), fn savc�nbs;:trnd iavesi:rn
rkeepin;: owr.comniiaiify "compefitive.
FPL Services, LLC (FPLS) is proud to present this Phase 1 lviayorThomaslZegatado
Investment Grade Audit (IGA) to the City of Miami for Enemy
Efficiency Retrofits and Performance Contracting Services, as
specified in the City's EECBG application. In addition to
lowering the City's overall energy use by approximately 590,000 per year, the City of Miami
will achieve other communitywide economic and environmental benefits.
FPLS performed an energy audit for the City of Miami from December 2009 to May 2010. The
purpose of this Phase 1 audit was to idcntif57 and analyze energy conservation opportunities that
would result in the greatest reductions in energy consumption at eleven (I I) facilities assigned to
this audit. The technologies evaluated during this audit included:
•• Lighting Systems
.• LED Exterior Lighting Systems
.• Occupancy Sensors
• Chiller
• Air Handling Units
• LEED Certification
HVAC Systems
• ProgranmaZole Thcimostats
• Outside Air Controls (Demand Control
NAV)
• Sports Field Lighting Systems
• Photovoltaic Renewable Energy (Solar)
• Energy Star Labels
Although FPLS evaluated each of the above tecl-mologies, several did not produce sufficient
energy savings and are therefore not included in the final implementation recommendations. It is
important to note that while the technologies evaluated did improve equipment efficiencies, the
limited run times at some facilities resulted in lower than expected long tcrm energy savings, i.e.,
the Artinle Conununity Center Theater, Nonetheless; FPLS developed solutions and identified
technologies able to produce 1 st year energy savings of $56,042 and material savings of $2, 731.
The following revenue producing conservation measures are recommended for
install ati on/retrofit.
Page 1
PPL Barvric;e:E;. Investment Grade Audit
Where proven meets possible' 0413 qfmianzi
The following matrix summarizes the economics for the combined ECMs recommended within
this report:
rg tin,
W Vt �Mh
IN=
MIN
RA f
I $2,731
"Es
x W. 9M ��
IRM"I'l- I
Police Headquarters* (removed
-2 Occupancy Sensors
$1,897
$0
N/A
from Scope of Work,)
4.8
_ECM
ECM -4 Outside Air Controls
$16,695
$0
City Hall
Y
10.8
(DCV / VAV)
Fire -Rescue Training Center
ECM -4a Programmable
(removed from Scope of
$o
N/A
$17,390
14.7
Work)
Police North District Substation
Y
Y
Y
N/A
Artime Community Center
Y
Artime Community Center
Theater
Y
Police South District Substation
Y
Y
Rescue Support Service/Fire
Garage (removed from Scope
of Work)
Fire -Rescue Station #1
Y
Y
Y
Virrick Park Community Center
(removed from Scope of
worA,)
Curtis Park (removed from
Scope of Work)
The following matrix summarizes the economics for the combined ECMs recommended within
this report:
ECM -1 Lighting Retrofit
MINION,
I $2,731
$3,160
M. �nlp Mwgxnt.�V f
11.1
-2 Occupancy Sensors
$1,897
$0
N/A
$9,047
4.8
ECM -1 Lighting Retrofit
I $36,264
I $2,731
$3,160
$435,443
11.1
-2 Occupancy Sensors
$1,897
$0
N/A
$9,047
4.8
_ECM
ECM -4 Outside Air Controls
$16,695
$0
N/A
$180,009
10.8
(DCV / VAV)
ECM -4a Programmable
$1,186
$o
N/A
$17,390
14.7
Thermostats
ECM -5 Solar PV'
N/A
N/A
N/A
N/A
N/A
"Solar opportunities will be re-evaluated during Phase 2 of the J1FLSJ7?VeSt.77?.e771 Urade Audit
Page 2
Investment Grade Audit
Where proven meats possible' City O f Miami
FPLS has prepared rr CaslrfloN Statenzerzt (please refer to Appendix. C) which shows a
cumulative savings over 5_vears of $266,380. The City of Miami. has indicated that if desires to
fund this Pro 1004 with American Recovery and Re-innestnientAct CARICA) funds. The
total cost gfthisprojecttts sltolwn on the CashfloN) Statement is asf0110zi1s:
ECM Cost S641,889
FPL Rebates (93,160)
IGA Cost S'10(1,000
2 fears q f Measurement d $44,810
Verificrttion
(MS, V)
Total Project Cost x'753,539
Next Steps: Growing the Savings
FPLS has begun discussions with key City Staff to develop strategies aimed at identifying
additional technologies and conservation measures that will significantly increase long-term
energy savings for the City of R2iami. To this aim, the following strategies have been identified:
-C Expand the number of facilities: by not limiting the Phase 2 investment grade audit to a
specific set of buildings, FPLS will be able to examine, through a preliminary audit,
multiple facilities and select the facilities and technologies that will produce the greatest
possible energy savings.
Phase expansion of outside air- control for Police Headquarters and control system
upgrades at the larger facilities, including the Miami Riverside Center.
•o If financially prudent, fold the renewable energy technologies (photovoltaic panels)
developed in Phase I into a Phase.2 bundled package solution.
FPL Services: A Partner Committed to Your Conservation
FPLS is a prominent Energy Services Company committed to providing energy solutions and
savings to our customers. Our expertise in energy conservation, renewable energy and utility rate
structures will provide the City of Miami with the confidence of working with a leading and
trusted energy partner.
Throughout FPL.'s 84 -year history, energy awareness and conservation have been among our top
priorities. FPL Group received Florida's "Green to Gold" award in its inai -Dral year of 2009.
Presented by Enterprise Florida, the honor is given to companies or organizations focused on
developing green products and advocating sustainable management of resources. FPLS will
bring this same comrnit neint to the City of Miami.
V1e are pleased to have this opportunity to partner with the City of Miami in developing and
implementing energy efficiency solutions as part of the EECBG program, and look forward to
continuing our work with y0ur City staff.
Page 3
AGREEMENT FOR fNTESTYl i NT GRADE AUDIT
Energy Performance Contract, Engineerin6 & Project Planning
TI1IS ENERGY PEPJ,0R1vLANCE CONTRACT (EPC) AGIR=MENT FOR AN 1 , ESTIMENT
GRADE AUDIT (IGA) (tliis "Agreement") is made gild entered into as of the 15th day of June
20.09 ("Effective Fate") between FrL SERVICES, LLC (the ''Company") and the City of
Miami (the "Customer") (the Company and the Customer each being referred to herein
individually as a "Party` and collectively as the "Parties"), with reference to the following:
Whereas, pursuant to this Agreement, the Parties wish to set forth their understanding concealing
certain services (the "Services") to be provided by the Company to the Customer as set forth in
Appendix A (Investment Cnade Audit Specifications),Appendix B (Clinton Climate Initiative
Energy Performance Contracting Best Practices) and Appendix C (Special Terms and Conditions
for Work Fielded Under American Recovery and Reinvestment Act oF2009 (ARRA).
NOW, THEREFORE, iii consideration of the mutual promises and agreements set forth, herein, the
Parties, intending to be legally bound, hereby agree as follows:
1. investment Grade Audit (FGA). The Customer hereby requests the Company to perform
an Investment Grade Audit (IGA) for an Energy Efficiency Building Refront with respect to the
facilities legally owned or operated by the Customer at which the Customer desires the Company to
perform Services (the "Service Location(s)") shown on Appendix A. The Company ab ees to
perform such an IGA for the compensation set forth herein, and the Company undertakes to prepare
and submit to the Customer an IGA Report- with respect to recommended Energy Conservation
Opportunities (ECO) at such Service Location(s) and accompanying implementation contract.
Detailed specifications, if any, agreed upon by the Parties for the IGA (including, but not limited to,
energy savings technologies to be reviewed, the Customer's payback criteria, special terns and
conditions for the use of ARRA fluids, time schedules and other such matters) are set forth in
Appendix A ,B & C, attached hereto.
2, Customer Cooperation. To expedite the energy audit, the Customer shall use reasonable
efforts to assist the Company in perforning the Services contemplated by this Agreement, including
providing reasonable access to each Service Location, providing inforniation concerning each
Service Location, making appropriate Customer personnel available if requested by the Corripany to
assist the Company in performing such Services, and taking any other actions the Company may
reasonably request from time to tune to achieve the purposes and intent of this Agreement,
3. Election to Proceed with ECOs. Upon submission by the Company to the Customer of ail
Investment Grade Audit Report and accompanying implementation contract as set forth in Section
1 above, the Customer shall have ninety (90) days to deteradne, in its sole discretion, if it wishes to
proceed with the -implementation of any or all of the ECOs recommended by the Company in the
IGA Report (the "Implementation Services"). If the Customer fails to provide the Company with
its written intent to proceed with the Inmpleinnentation Services of the project as reconmmended by the
Cornpculy within such ininety (90) -day period, the Company's obligations under this Agreement
shall terminate, without father liability of the Company, and the Customer shall be obligated to pay
the Company for the Agreement Price for .IGA Report in accordance with the provisions of
Section 4.2 of this Agreement. If, however, the Customer wishes to proceed with the
Implementation Services identified in the IGA Report and provides the Company with written
intent to proceed in accordance with the foregoing, then the Company and the Customer shall enter
into a separate agreement (the "Implementation, Contract').
4. .Price and Pavment.
4.1 Investment Grade Audit Price. Subject to the provisions of Section 4.5 below, the
Customer shall pay to the Company the stun of $100,000 (the "Agreement Price") for all Services
performed by the Company pursuant to this Agreement. The Agreement Price is the full
compensation for such Services and includes all federal, state and local taxes, if any, assessed witli
respect to the Services or with respect to the famishing of any items. hereunder. The Agreement
Price shall be. incorporated into the total project cost and if the Customer chooses to implement only
a portion of said sei7dces, the Customer shall not be held liable for any costs exceeding the
Azreement Price.
4.2 Pavment on Vermination. hi the event of a termination ofthe Company's obligations
under this Agreement, the Company shall provide an invoice to the Customer for the full
Agreement Price, and the Customer shall be obligated to pay such amount within tliiliy (30) days
following receipt of the invoice.
4.3 Deferral Election. In the event the Customer elects to proceed with the
Implementation Services pursuant to Section 3 above, the Customer shall notify, the Company, on
or before executing an Implementation Contract, of the Customer's election to either (a) receive an
invoice for the fill amount of the Agreement Price, or (b) defer and rollover payment of the
Agreement Price until such time as compensation is payable to the Company pursuant to the
implementation Contract. If the Customer elects, pursuant to clause (a) of the foregoing; to receive
an invoice, or if the Customer fails to male-- a timely election pursuaint to the foregoing deferral
option in (b), the Company shall issue a1 invoice for the full anou nt of the Agreement Price, and
the Customer shall be obligated to pay such amount within thirty (30) days following receipt of tlne
invoice.
4.4 Date Payments. Any overdue payment winder this Section 4 shall bear interest at the
Delayed Payment Rate of 1.5% per aummn from the date such payment is due until and including
the date of payment.
4.5 Release from Payment Obligation.
4.5.1 Notwithstanding any provision in this Agrecnlent to the contrary, the Customer shall
have no obligation hereunder to pay the Company for the Services performed by the Company
tinder this Agreement if (a) the IGA Report submitted by the Company pursuant to Section 1 does
not identit, at least one potential ECO at a Customer Service Lcoation specified in Appendix A
wlhich meets the Customer's agreed upon paybacic criteria of 10 years or less, and (b) tine Customer
does not elect to proceed further with any approved ECO as set forth in Section 3. For purposes of
the foregoing, the term "payback criteria", with respect to an ECO, shall mean the number of
years obtained by dividing (i) the total estimated implementation cost of the ECO, as set forth in the
IGA Report (including the Price specified in Section 4.1 hereof, but excluding all fmancing costs
associated with implementation of the ECO), by (ii) the estimated savings to the Customer from the
installed ECO, including energy savings, maintenance savuzgs, avoided capital costs, and other
costs as applicable, as set forth in the IGA Report. All such estimates shall be made by the
Company in its sole professional judgment and the Customer. reserves the right to request and
review any backup information used to determine estimates.
4.5.2 In the event the Company determines, prior to submission of the IGA Report to the
Customer, that the Company will not be able to identify at least one potential ECO which meets the
Customer's agreed upon paybacic criteria as set forth in Section 4.5.1 above, then the Company, in
its sole discretion, may elect by written notice to the Customer to teimhinate the Agreement without
further liability, unless the Customer, within five (5) days following receipt of such notice, elects in
writing to waive the provisions of Section 4.5.1 above and to pay to tae Company the Price as
otherwise set forth herein.
5. Disclaimer of Warranties. THE CUSTOMER ACKNOWLEDGES AND AGREES
THAT THE COMPANY HAS NOT KADE, DOES NOT MAKE AND SPECIFICALLY
NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, PRO-NgSES,
COVENANTS, AGREEMENTS, OR GUARANTIES OF ANY KIND OF CaARACTER
WF3ATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST,
PRESENT OR FUTURE, OF, AS TO, CONCERNING, OR WITH RESPECT TO (A) THE
SUITABILITY OF THE SERVICES FOR ANY AND ALL ACTIVITIES AND USES, (B) THE
COMPLIANCE OF OR BY THE SERVICES OR ITS OPERATION WITH ANY LAWS,
RULES, ORDINANCES, OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL
AUTHORITY OR BODY, AND (C) THE MERCHANTABILITY, hv1R ETABILITY,
PROFITABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OF THE SERVICES
AND IJvfP D WARRANTIES OF CUSTOM OR USAGE.
6. Limitations of Liabil . Neither Party shall be liable to the other Party for special,
indirect, consequential or punitive damages, even if the Party has been advised that such damages
are possible. No Party shall be liable for lost profits, lost revenue, or lost institutional operating
savings. Iii no event shall the Coiupmy's total aggregate liability exceed the Agre ment.Price set
for in Section 4.1 for the Services under this Agreement.
7. Indemnification. Company shall indeinnify, .and hold harmless the Customer and its
officials, employees and agents (collectively referred to as "Indeinnitees") and each of thcna from
and against all loss, costs, penalties, fines, damages, claims, expenses (including attorney's fees) or
liabilities (collectively referred to as "Liabilities") by reason of any injury to or death of any person
or damage to or destruction or loss of any property arising out of, resulting Lom, or In connection
with (1) the performance or non-performance of the services contemplated by this Agreement
which is or is alleged to be directly or indirectly caused, in whole or in part, by any act, omission,
default or negligence (whether active or passive) of Company or its employees, agents or
sifocontractors (collectively referred to as "Company"), regardless of whether it is, or is alleged to
be, caused in whole or part (whether joint, concurrent or contributing) by any act, omission, default
or negligence (whether active or passive) of the Indenuaitees, or any of then? or (ii) the failure of the
Company to comply with any of the paragraphs herein or the failure of the Company to coinform to
statutes, ordinances, or other regulations or regiiireinents of any govenunental authority, federal or
state, in connection with the performance of the Agreement. Company expressly agrees to
indemnify and hold harmless the Indemnitees, or any of then, from andd against all liabilities which
may be asserted by an employee or former employee of the Company, or any of its subcontractors,
as provided above, for which the Company's liability to such employes or former employee would
otherwise be limited to payments under state Workers' Cornpensation of similar laws. This
Indemnity shall be interpreted to comply with § 725.06 and § 725.08, Fla. Stat., as applicable.
8. Confidentiality. Both Parties agree to hold Confidential Information in strict confidence
and agree that it shall not disclose Confidential Information without prior written consent of the
other patty. For purposes of this Agreement, "Confidential Information" shall mean all
infoinnation, regardless of the foinm in which it is comimuunicated, prepared or maintained (whether
oral, written, or visual) by a party (he "Disclosing Paty") which is disclosed to the other party (the
"Receiving Party") in connection with the this Agreement and including all reports, analyses, notes
or other inforinnation that are based on, contain or reflect any such Confidential Information,
Confidential Information may only be disclosed to employees or subcontractors with a. need to
know the Confidential Infonmation for the sole purpose of performing it obligations tunder this
Agreement and the Receiving Party is responsible for any breach of this Section 7 by its employees
or subcontractors. This Section does not apply to information that is presently a matter of public
knowledge, which is or becomes available on a non -confidential basis from a source which is not
luiown to be prohibited fi-om disclosing such infonmation or which was legally in the Receiving
Patty's possession without obligation of confidentiality prior to disclosure by the Disclosing Paa-ty.
In the event that either Pzuty is requested or required by legal or regulatory authority to disclose any
Confidential Information, the Receiving Party shall promptly notify the Disclosing Party of such
request or requirement prior to disclosure so that the Disclosing Party may seek an appropriate
protective order and/or waive compliance with the teens of this Agreement. Both Patties
aclutovvledge that the Disclosing Party would not have an adequate remedy at law for nnoney
damages if the covenants contained in this Section 7 were breached. Accordingly, the Disclosizig
Party shall be entitled to an injunction restnd ning Receiving Patty from violating this Section 7.
9. Ownership. Except for each Party's Confidential Information, the Parties agree that the
IGA Report, inchldi ng a1137 useful ideas, concepts, methods, procedures, processes, improvements,
inventions, discoveries, and the like produced or composed in comicGtion with work products
resulting u•om the Services perforined shall be solely owned by the Company, not the Customer,
and the Company shall own the intellecival propel -Ey rights thereto, including all copyrights. The
Company Hereby grants the Customer a non-exclusive, linnited, perpetual, and royalty-f7•ec license
to use IGA Report for its internal business purposes. The Customer agrees that, notwithstanding '
anything to the contrary set forth herein, as part of the Corlpany's provision of the Services
inereunder, the Company may utilize preexisting intellectual property, including without limitation
software, methodologies, tools, specifications, models, samples and doctuuentation, the Company's
Confidential Information, as well as copyrights, tradennarlcs, service merles, ideas, concepts, know-
how, techniques, lahowledge or data, which have been originated, developed or purchased by the
Company or by third parties raider agreement to provide services for such third patties. The Parties
shall retain exclusive ownership, right, title and interest in any Confidential Information provided to
the other Party in connection with this Agreement.
10. Governing Law. This Agreement shall be govein•1ed by, construed and enforced in
accordance with the laws of the State of Florida, exclusive of conflicts of laws provisions.
1 1. Tadeoendent Contractor. The Company shall be an hndependent contractor- with
respect to the Searvices performed li=L nder, and the Compar_y shall not be deemed to be an
employee, representative or agent of the Customer. Nothirng in this Agreement shall be construed
as inconsistent with the foregoing independent contractor status or relationship, or as creating or
implying any partnership, joint venture, trust or other relationship between the Company and -the
Customer.
12. Survival. Sections 4, 5, 6, 7, S and 9 shall survive the teimination or expiration of this
Aa1•eement
13. Severabiaity. The invalidity of one or more phrases, sentences, clauses orsections
contained in tliis Agreement shall not affect the validity of the rennaining portions thereof so long as
the material ptuposes of such doculment can be determined and eff ctuated.
14. Non -waiver, The failure of a Party to enforce, insist upon, or comply with any of the
terms, conditions or covenants of this Agreement, or a party's waiver of the same in any instance or
instances shall not be consiTued as a general waiver or relinquishment of any such terms, condlt10I1S
or covenants, but the same shall be and remain at all times in full force and effect.
15. Assianment. This Agreement and each Party's rights, duties and obligations tinder this
Agreement are personal in nature and shall not be subcontracted, assigned, delegated or otherwise
disposed of by either Party without the prior vnitten consent of tlne other Party. Such approval shall
not be tinreasonably witiilleld. Notwiti-istanding the foregoing, the Company may assign this
A, reement to an afMiate or subsidiary upon prior written approved by the Customer.
16. Compleie Agreement. This Ao reement is composed of this doclunent and all exhibits
hereto. This Agreement constitutes the entire and final agI•eenlent and supersedes all prior and
contemporaneous agI•eements, representations, warranties and understandings of the parties
whefuer oral, written or Implied.
D WITNESS 'WHEREOF, the Parties hereto have executed this Energy Performance Contract
(EPC) Agreement for an Investment Cnade Audit (IGA) by and tln•ough their duly authorized
representatives as of the date first hereinabove written.
THE COMPAQ':
PL Services, LLC
By: Cnegothou
Its: VP i/d GM, FPL Services, LLC
TBE CIiSTO
City of Mianu,a 1prida lvltuucipal Corporation
By: Pedro G. Herz
Its: City Manager
Approved as to L�'o�nx:
City A n�e n0�
AGREEMENT FOR INVE, STMENT GRADE AUDIT
Energy Performance Contract, Engineering & Pro,jeef Planning
Between Ir'PL Services, LLC, and the City ofMi imi
CITY OF MIAMI, a municipal
Corporation of the State of Florida
ATTEST:
PRTSCILLA TH010SON
CITY CLERK
CITY RiAINAGER
APPROVED AS TO FOR -1\6 ANM
CORRECTNESS
JUZIF, f ��
CITY ORNEY
Aunendix A - Investment Grade Audit Specifications
1. Service Locations:
r�571t.i
Ora�,Fa't.w�"2' a nal new .tg', k9
L'utf r ter
! yxk ^d� .Wr ILII.°,.nY.Fse5r�
?
P.t'.4C.u�?-�Y.l;�9Y�
�e��' aA ��A>irry
"�A , *
1
Police headquarters
400 NW 2"d _venue
$494,629
5,426,400
( 290,126
2
1 City hall
3500 Pan American Drive
$69.1127F
654,000
43,063
3
Fire -Rescue Training Ctr,
Police N District Substation
Manuel Aithne Contin. Cir..
Police S District Substation
Fire-RescueSupEoit Service
3425 Jefferson Street
1050 NW 62id Street
970 SW 151 Street
2200 W Flagler Street
1151 NV+T 7t1' Street 11
$66,051
562,681
549,386
545,022
674,700
666,720
571,920
522;600
476,050
30,000 est.
24,437
25,000 est.
16,546
51,596
4
5
6
7
5
Five -Rescue Station 4#1
Vir ick Park
144 NE 5"' Street
3255 Plaza Street
$44,054
$42,654
444,720
424,320 11
20,000 est.
32,137
9
10
Cutis Pane
1901 NW 24" Avenue
900 SW 15t Street
$35,726
$36,754
223,300
273,600
15,000 est.
I 5,592
11
Manuel Altime Com Center
j Theater
Tine cost to perfolan the Investment Grade Audit, including the initial steps toward LEED
certification and Energy Star labeling, is 5100,000, or approximately $9,100 per facility. Should
the City decide to proceed to implementation the City may elect to include this cost as part of the
overall implementation project.
2. Project Performance Criteria:
This Energy Performance Contract (EPC) Agreement for an Investment Grade Audit
(IGA) will comply with Clutton Climate Initiative (CCI) Energy Performance
Contracting Best Practices (Appendix B).
Where financially feasible, the IGA will include Uusuing LEED for Existing
Buildings Operations & Maintenance (LEED EBOl.) Certification and Energy Star
labels.
® FPL Services will investigate renewable energy teclulologies forthe facilities listed
above, and provide recommendations for use of such in IGA Report
3. Detailed Local or Site Specific Concerns: None noted.
4. Energy Savings Technologies required by the Customer: None noted at this time.
5. Payback Criteria: As indicated in Section 4.5.1 above, the maximum payback criterion is 10
years for identified ECOs. The decision to include either LEED or Energy Star will ultimately rest
with the City based on the additional cost and payback period required. .
- 6. Timeline for commencing the IGA and submitting the ?!GA Report to the Customer:
TGA "Kick Of?'Meeting: The Customer and the Company agree to schedule an IGA "Kick Off'
meeting within two weoeks of executing this Aeement.
TGA Report & EPC Contract: The IGA Report Enid accompanying ImplernenteLon Contract will
be provide-d to the Customer within 90 clays following the "Kick Off" nleetino.
Annendix E— M Energy Performance Contracting Best Practices
cLir� on C L I N 1 O N Energy Performaice Contacting
aornonr�ov
i' tJr'
Best est Practices
INITIATIVE
IATIVL
The Clinton Climate Initiative
President Clinton launched the Clinton Climate Initiative (CCI) in August 2006 to innalct a
difference in the fight against climate change in practical, measurable and significarit
ways. In its first phase, CCI is serving as the exclusive implementing pa-tmr of the C40
Large Cities Climate Leadership Croup, an association of large, international cities that
have pledged to accelerate their efforts to reduce greenhouLse aas emissions. Expanding
upon its wort: with the C40, CCI is pamering with additional cities, building owners and
institutions to develop and implement large-scale projects that result in substantial
reductions in greenhouse gas missions.
In May 2007, President Clinton am-iounced the creation of an Energy Efficiency Building
Retrofit Prognun. This program brings together many of the world's largest energy service
companies, financial nlstitutrons, and cities in a landinnark effort to reduce energy consumption
in existing buildings across the municipal, private, commercial, educational and public housing
sectors.
CCI CONMMENT
CCI will negotiate initial agreements to launch an Energy FfEciency Building Retrofit
Program; serve as ongoing liaison among ESCOs, owners and financial partners to ensure
Continuity, focus on the mission and long-term program performance; develop, in cooperation
with partners, a broad set of industry best business practices for the program; work with
building owners to stinnulate incrennental demand for energy efficiency sen7ices among owners,
negotiate streamlined procuuement and regulatory processes t'nat eliminate or reduce barriers to
the Prograu; and seek cornplementay sources of fu nding and credit enhancement such as IFI
financial guarantees, investment credits, and utility rebates to lower total Program costs and
risk.
ESCO COMMIT'ME( N"r
COI's ESCO partners agree to work with CCI and owners in good faith to maximize energy
and oilier related savings witlniin a justifiable economic model that delivers sustainable
peifornnance f orn the building improvements implemented, provide performance guarantees of
CnGro)' StlVlll�s, GXptlIlU [dell' ousmesses io meet Yrogl'aln a'owui, wort mlml l Ul to Towel' total
system. costs and prices, and develop, in cooperation with owners, CCI, and othe. program
partners, mutually acceptable performance contract terms and conditions,
ESCOs agree to use the Clinton Foundation's nine or logo or any name or logo owned or used
by the Clinton Foundation, of President Clinton's name, image, voice or likeness (collectively,
the "Clinton Images") only with the express vTitten consent of the Clinton Foundation and
agree that the Clinton Foundation has the absolute right to revieuj and approve (in Writing) any
and all proposed uses (in their entirety) that include Clinton Images. The Clinton Foundation's
written response will normally be rendered within seven (7) business days of receipt by the
Clinton Foundation (or its designated representative), incl, if a response is not received within
seven (7) business days, the request should be deemed rejected by the Clinton Foundation.
ENERO'Y SERVICES PROCUREMENT AND DELINTERI' MODEL
The Program will operate in the following way and is generally described in Figure 1 below:
ESCO
Pre -qualification
° Financial stability
Technical expertise
° Resource
mobilization
Initial Owner RFP
Commitment
° Harmonization
° Credit check
° Investment criteria
° Qualifications
° Scope of work
-° Transparent
pricing
.'.Cost -reduction
incentive
Performance
Contract
° Qualified measures
° Performance guarantee
° Walk -away compensation
\ Selection Audit Investment
e Conformance
° Qualitative
evaluation
Figure 1
° =n'rgy
engineering
Investment
Proposal
Service
proposal
ESCO FRE -QUALIFICATION cox' INITIAL, OTiWER COTvII1RTMENT
° Underwriting
° =quity
Participation
Owners may pre -qualify a pool of qualified ESCOs. Pre -qualification is intended to be a high-
level review of total ESCO capabilities rather than a detailed evaluation. More detailed
qualification information about local capabilities will be included in and submitted at the tine
of an RFP,
i ne loiiowing consiaeranons will De part of uie pre-qua.iineation process; L)o eanctictate
ESCOs have the requisite technical shills to develop, deliver, and service large building energy
retrofit projects? Do they have a demonstrated history of successfully delivering promised
energy savings and performance guarantees? Do they have the ability and willingness to use
local labor and product suppliers wherever feasible? Do they have the ability and willingness
to einploy project and product performance specifications that ensure the best value for
building owners? Do they have adequate financial bonding capacity and other attributes
accepiable to CCI, owners, and financial partners that influence the quality of their
performance guarantees?
RFPL & ESCO SELB(CTION
Owners play invite a Request for Proposal (RFP) from ESCOs. Ouliners may initiate projects
by identifying specific btd1dings to evaluate and establish threshold financial criteria for
approval of efficiency pleasures (cash flow, simple payback, life cycle model), Owners
requiring financing may allow ESCOs and financial partners to complete a credit check.
ESCOs will respond with airy qualifications unique to the defined scope of work and other
attributes they believe make them the best qualified candidate. Owners will evaluate responses
using such criteria as 1.) management approach, 2) technical approach, -3) project development
methodology, 4) project delivery methodology, �) past performance, 6) service capabilities, 7)
interview perforiiiance, 8) local resource mobilization, and 9) financial terms (e. g., walls -away
fes, insurance coverage, bonding) and will award priiane contractor responsibility to an ES CO
with the best qualifications and most attractive terms.
While harmonized, the selection process may be adapted by each owner according to prevailing
statutes in its jurisdiction; and while an PFP is a single tender with a defined scope of work
that would normally be implemented by a single selected ESCO, it may sometimes be .awarded
to more than one ESCO.
AUDIT— ENERGY PERFORMANCE CONTRACT, ENGM. ERrNG, AND PROJECT PLANNING
After selection of an ESCO as the prime contractor, but before beginning site-specific work,
the selected ESCO and owner will execute an energy performance contract (EPC). An EPC
will eonfnn the financial criteria that each owner will use to evaluate measures proposed for
their buildings. An EPC will ensure agreement between the owner and the ESCO on key issues
such as preliminary project performance criteria and local or site specific concerns. An EPC
will include provision of an ESCO-provided energy savings performance guarantee. An EPC
will detail the walls -away compensation that the ESCO will receive should the ovnmer decide
not to implement qualified measures, which will normally be a percentage of the estimated
project cost or actual project development costs.
To expedite the energy audit, building owners and cooperating tenants will provide certified
data as follows: 1) the age of each building in the scope of work, 2) the building gross square
footage and number of floors, 3) all building energy usage in the most recent 13 to 36 nnontln
period (electricity, fuel, natuxal gas, water/sewer, purchased chilled/hot water & steam)
inc1uaing ren -,m: space where energy majt be 11 =Teel s2l Rrately, 4) tile builCl111g Occupancy and
use, 6) any historical energy audits, and 6) any anticipated building changes and major capital
imUrovements.
This data will serve as a baseline for GHG emissions and help prioritize buildings for retrofit.
ESCOs will develop a scope of work addressing specific energy savings and project costs for
improving the efficiency of buildings including all enemy consuming systems, building
envelope, and oilier aspects of file site that may impact GPIG emissions; such as operating
procedures and occupancy schedules, even when separate pe mission must be obtained from
tenants to do so.
IMT STMENIT - APPROVAL, IMPLRAMNT_ATTON, AND PERF ORMiUNCR A.SSURANCR
ESCOs will audit, develop mad estimate the cost of viable retrofit measures using transparent
pricing that will allow owners to compare project costs with reference data acceptable to
owners. Examples of such reference data include publicly available pricing schedules, labor
estimating standards or similar reference points appropriate to the jurisdiction.
Qualified measures developed and guaranteed by ESCOs will be ir_zplemented after approval
by the owner, provided that reasonable and safe building access has been granted by the owner
and the owner's tenants. work will be implemented u+ith a guaranteed maximum price (GMP)
in accordance with the performance contract executed by an owner and ESCO. ESCOs will be
provided incentives to reduce project costs fntther by a cost -reduction feature that splits net
project cost savings (i.e., amounts below the approved GMP or financial_ savings attributed to
accelerating construction) on a basis that is acceptable to both parties. CCI will support an
ESCO's product supplier selection to ensure use of suitable emissions -reducing equipment and
technology. CCI will also mance available to its clients the discounted prices that it negotiates
with manufactured product and service providers.
ESCOs will provide an energy performance guarantee with acceptable measurement and
verification that specifies energoy and other related savings to be achieved and places specific
liability on the ESCO in order to assure performance. The guarantee will compensate ovmcrs
for energy savings shortfalls that occur for which ESCOs are deemed liable. Owners will fund
the measurement; verification and maintenance services acceptable to ESCOs to help ensure
proper measurement, verification, operation and maintenance of retrofitted buildings for the
term of the performance.guarantee.
Measurement and verification (M&V) procedures will be guided by the International
Performance Measurement & Verification Protocol (IPMVP). Measurement will include a
calculation of the reduction in GHG emissions generated by the project and ESCOs will report
these to the CCI GHG Measurement Program.