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Exhibit 1
SCHEDULE E APPENDIX VI — SPECIAL TERMS AND CONDITIONS FOR CITY OF MIAMI EECBG AWARD Number Subiect 1. 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. SPECIAL TERMS AND CONDITIONS Table of Contents RESOLUTION OF CONFLICTING CONDITIONS................................................................................ 11 AWARD AGREEMENT TERMS AND CONDITIONS.......................................................................... I I ELECTRONIC AUTHORIZATION OF AWARD DOCUMENTS......................................................... I 1 PAYMENT PROCEDURES - ADVANCES THROUGH THE AUTOMATED STANDARD APPLICATION FOR PAYMENTS (ASAP) SYSTEM............................................................................11 CEILING ON ADMIlNISTRATIVE 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 DECOMIIvUSSIONING (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 10 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 auidance. 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 1. 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 httpJ/ecfr.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 httn://manaaement.eneray.aov,'business doe/1-374.htm. 3. ELECTRONIC AUTHORIZATION OF AWARD DOCUMENTS Acknowiedaement 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 Pavment. Payment will be made by advances through the Department of Treasury's ASAP system. 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. Adjustintr 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, 11 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 cast 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. y 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)(13)), 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 5250,000, 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. 12 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. Reouirements. 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: Acknowledgn7ent. "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 13 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. 15. LOBBYING RESTRICTIONS By accepting funds under this award, you agree that none of the funds obligated on ine 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. 1913. 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. 14 If you move forward with activities that are not authorized for Federal funding by the DOE Contracting Officer in advance of the final NEPA decision, you are doing so at risk of not receiving Federal funding and such costs may not be recognized as allowable cost share. 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 NEPA 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-0-wried 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 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. 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 (N`HPA), consistent with DOE's 2009 letter of delegation of authority regarding the NI-IPA. 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 g00. SHPO contact information is available at the following link: h!W://wNirAl.ncshr)o.orai'find/index.htm. THPO contact information is available at the following link: hU://xAww.nathpo.org/map.htm1 . 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 15 not object to its Section 106 finding or determination. Recipient shall provide a copy of this concurrence to the Contracting Officer. V 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)/subgrantee(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 subcontractor(s)/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: V - Name DUNS Number Award Amount Statement of work including applicable activities EF -1 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 S 1,000,000, 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)/sub--rant(s) prior to providing written approval. J. 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. 16 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 DUD'S 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. 17 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 grant, cooperative agreement or TIA and/or modification using Recovery Act funds. Covered Funds must be reimbursed by September 30, 3015. 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. 18 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 paragraph 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. 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 terns and conditions of employment that would apply to the person in that position if the reprisal had not been taken. M - 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.). G. Reserved I�1�7 ,Fii'�:T•17 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. Availabilitv 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. 1 ] 1-5, 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 governments, councils of government, public entities, and public-private entities within the State either by formula or at the State's discretion. 20 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 uA 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 (Recover), 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:/h ii,ni,.ccr.cov) 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 (htrp://x iiw 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://wnvi4,.FederalReporting.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: Def nitization 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 AMERICAN IRON, STEEL, AND MANUFACTURED GOODS (COVERED UNDER INTERNATIONAL AGREEMENTS) — SECTION 1605 OF THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009" will be done upon definition and review of final activities. 26. REQUIRED USE OF AMERICAN IRON, STEEL, AND 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 ivork 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 goveniments; 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 2009 (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, including— (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 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)(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 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 foods 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: ?3 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. REQUIRED USE OF .AMERICAN IRON, STEEL, AND NVi 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, Bulaaria, 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, andlor 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— (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 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 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 2009 (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 Recovery 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 Party 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 57,443;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 roods 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 inapplicability 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) ncluding(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 176.110(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 other than designated country iron, steel, and/or 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: v 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 1, 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:llwni whitehouse.gov/otnb/circulars/a102/a102.htnil. (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://www.Whitehouse.gov/ombleirczdai-sla1331a133.htnil. 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 fust 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 azencies, Offices of Inspector General and the Government Accountability Office. Cfi1�1T T.�: _ !T#)`► Elm 11:7glyInZ1►Ti1Ma 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 fust 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 1(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 wane 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 (WH -1321) 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 wase 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 Officer to the Administrator of the Wage and Hour Division Employment Standards Administration U.S. Department of Labor Washineton. 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 an), time that any construction, alteration, or repair activity as defined by 29 CFR 5.20) (hgp://cfr.vlex.com/vid/5-2-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 F REMISS i h C'HL-\ of Miami May.20, 2010 Submitted by: .Servtesy LLC 60011 Village Blvd. West Palm Beach, FL 33407-0768 David Harold Russell, Jr., PE PE # 42062 0 of A: 9264 Llv Y 1 Where proven meets possible'" Y ;=PL Sarvivas. Where proven meets possible• Investment Grade Audit Cit), of Miami •.AL'���z',Y.s I.: . 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 thafis - environmentally sustainable and, to the maximum extent practicable, maximize. benefits for local and regional COmmUnitles • Reducing the total energy consumption . rue-Irnve: becirpresenletl with rf grenl �_ nppnrntitft}; ah lrtilcsaa th c'�! m eriearr :Recgverp:an�lReinuestment f1 el (4kRA) fo sallgj bs;.al etill vcsN?l keeping aur .cnntniiriiizp.conrheiitive " FPL Services; LLC (FPLS) is proud to present this Phase I Ma}or Ti,otnas7tega}Aao Investment Grade Audit (IGA) to the City of Miami for Energy 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 $90,000.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 I audit was to identify and analyze energy conservation opportunities that would result in the greatest reductions in energy consumption at eleven (11) facilities assigned to this audit. The technologies evaluated during this audit included: •• Lighting Systems • LED Exterior Lighting Systems • Occupancy Sensors • Chiller a Air Handling Units • LEED Certification _• HVAC Systems • ProQranunable Thermostats • Outside Air Controls (Demand Control /VAV) • Sports Field Lighting Systems • Photovoltaic Renewable Energy (Solar) • Enemy Star Labels Although FPLS evaluated each of the above technologies, several did not produce sufficient energy savings and are therefore not included in the final implementation reeominendati ons. 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 longi tern? energy savings, i.e., the Artime Conununity Center Theater. Nonetheless; FPLS developed solutions and identified technologies able to produce 1st year energy savings of x'56,042 and material savings of 92,731, The following revenue producing conservation measures are recommended for install ati on/retrofit. Page I ;=PL BE!rvOCes, Where proven meats possible' Investment Grade Audit Cit)) ofmialn7. The following matrix su=arizes the economics for the combined ECMs recommended within this report: ECM -1 Lighting Retrofit $36,254 .lu iL a �"Duis)de,�A -��Ia�Sfltog P�ramambf I �ac�i) y r A r'Retnofiis t �Sens.orsorifirolJ, $0 t �,Thermos£ats $9,047 4.8 ECM -4 Outside Air Controls $16,695 $0 Police Headquarters* (removed $180,009 10.8 (DCV / VAV) from Scope of Work ECM -4a Programmable City Hall Y N/A $17,390 14.7 Fire -Rescue Training Center (removed from Scope of ECM -5 Solar PV* N/A N/A N/A Work N/A Police North District Substation Y Y Y 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 S'ta'tion #1 Y Y Y Virrick Park Community Center (removed from Scope of Work Curtis Park (removed from Scope of Work) The following matrix su=arizes the economics for the combined ECMs recommended within this report: ECM -1 Lighting Retrofit $36,254 I $2,731 $3,160 I $435,443 11.1 ECM -2 Occupancy Sensors $1,897 $0 N/A $9,047 4.8 ECM -4 Outside Air Controls $16,695 $0 N/A $180,009 10.8 (DCV / VAV) ECM -4a Programmable $1,186 $0 N/A $17,390 14.7 Thermostats ECM -5 Solar PV* N/A N/A N/A N/A N/A M *Solar opportunities Neill be re-evaluated during F1ease 2 of the 1,1'Ls Investment cirade Audit (IGA). Page 2 E=r�L ��A�9a sem_ Investment Grade Audit Where proven meets possible' Cit)) O f Mianii FPLS has pj"gpared a Caslzflom Statenzent (please refer to Ahhendix C) )which shows a cumulative savinzs ober 5 pears of ,£'266,380. The Cit) of Mianii has indicated that it desires to fiend this pi,gject 1004, ii ith American Recovery and Re -investment Act (ARRA) funds. The total cost gf this project as shown oez the Cashflo>') Statement is as_folloiis: ECM Cost $641,889 FPL Rebates (53,160) IGA Cost $'100,000 2 fears gfMeasurenient & ,x'44,810 Vern fetation- (MS: V) Total Project Cost x'783,339 Next Steps: Growing the Savings FPLS has begun discussions with key City Staff to develop strategies aimed at identifying additional technolo6es and conservation measures that will significantly increase long-term energy savings for the City of Miami. To this aim, the following strategies have been identified: 0 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. .0 Phase.2 expansion of outside air control for Police Headquarters and control system upgrades at the larger facilities, including the Miami Riverside Center. .0 if financially prudent, fold the renewable energy technologies (photovoltaic panels) developed in Phase 1 into a Phase.2 bundled package solution. FPL Semites: 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 -,'gill provide the City of Miami with the confidence of working with a leading and trusted energy partner. Tluoughout 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 inaugural 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 sane commitment to the City of Miami. We are pleased to have this opportunity to partner -,lith'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 your City staff. Page 3 A GREEMM' NT FOR ENVESTMENT Gfl2A1;_3E AUDIT Energy Performance Contract, Eng=ineering & Proiect Planning THIS ENERGY PEFJON_IvIANCE CONTRACT (EPC) AGIREEMENT FOR %,Iv IIIn ESTNI ENT GRADE AUDIT (IGA) (this "Agreement") is made and entered into as of the ISth day of Rule 2009.("Effective Date") between FPL SERVICES, LLC (the "Company") and the City of Miami (the "Customer") (the Company and the Customer each being ref fired to herein individually as a "Party" and collectively as the "Parties"), with reference to the followi=ng: Whereas, pursuant to this Agreement, the Parties wish to set forth their understanding concerning certain services (the "Services") to be provided by the Company to the Customer as set forth in Appendix A (Investment Grade Audit Specifications),Appendix B (Clinton Climate Initiative Energy Performance Contracting Best Practices) and Appendix C (Special Terms and Conditions for Work Funded Under American Recovery and Reinvestment Act of 2009 (ARRA.). NOW, THEREFORE, in 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 (IGA). The Customer hereby requests the Company to perform an Investment Grade Audit JGA) for an Energy Efficiency Building Retrofit 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 agrees to perform such an IGA for the compensation set forth herein, and the Company 1-mdeitakes 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 A YU fluids, tiz-ne 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 performing the Services contemplated by this Agreement, including providing reasonable access to each Service Location, prcvidiing information concerning each Service Location, snaking 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 Agreement. 3. Election to Proceed with ECQs. Upon submission by the Company to the Customer of an Investment Grade Audit Report and accompanying implementation contract as set forth in Section 1 above, the Customer shall have ninety (90) days to determine, in its sole discretion, if it wishes to proceed with the implementation of any or all of the ECGs reconnmended by tlne Company un the IGA Report (the "Implementation Services"). If the Customer fails to provide tine Company with its written intent to proceed with the Innplennentation Services of the project as recon_ -nnended by the Company within such Ninety (90) -day period, the Company's obligations under this Agreement shall ternninate, without fiuther liability of the Company, and the Customer shall be obligated to pay the Company for the Agreement Price for .ICA 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 wifn the foregoing, then the Company and the Customer shall enter into a separate agreement (the "Implementation Contract"). 4. Price and Payment. 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 Agreennent Price is the fall compensation for such Services and includes all federal, state and local taxes, if any, assessed with respect to the Services or with respect to the furnishing of any items. hereunder. The Agreement Price shall be incorporated into the total project cost and if the Customer chooses to irnplennent only a portion of said san7ioes, the Customer shall not be held liable for any costs exceeding the Agreement Price. 4.2 Pavment on Vermination. In 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 thirty (30) days following receipt of the uivoice. 43 Deferral Election. In the event the Customer elects to proceed with the Implementation Services pursuant to Section 3 above, the Customer shall notify the Connapany, on or before executing an Implementation Contract, of the Customer's election to either (a) receive an invoice for the full anount of the Agreement Price, or (b) defer and rollover paynnent of the Aareement Price until such time as compensation is payable to the Company pursuant to the Irvplementation Contract, If the Customer elects, pursuant to clause (a) of the foregoing; to receive an invoice, or if the Customer oils to finance a timely election pursuaint to the foregoing deferral option in (b), the Company shall issue an invoice for the full amount of the Agreement Price, and the Customer shall be obligated to pay such amount within thirty (30) days following receipt of the invoice. 4.4 Late Paymmts. Any overdue paynnent under this Section 4 shall bear interest at the Delayed Payment Rate of 1.5% per aunnunn n•om the date such payment is due unntil and including the date of payment. 4.5 Release from Payment Obligation. 4.5.1 Notwithstanding any provision In this Agreement to the contrary, the Customer shall have no obligation heretuider to pay the Company for the Services performed by the Company under this Agreement if (a) the IGA Report submitted by the Company pursuant to Section 1 does not identify= at least one potential ECO at a Customer Service Location specified u1 Appendix A which meets the. Customers agreed upon payback criteria of 10 years or less, and (b) the 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 nurilber 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 fmaucing costs associated with implementation of the ECO), by (ii) the estimated savings to the Customer :aom the installed ECO, including energy savings, medritenance savings, 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. 45.2 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 payback criteria as set fortil in Section 4.5.1 above, then the Company, v1 its sole discretion, may elect by written notice to the Customer to terminate 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 fae Company the Price as otherwise set forth herein. 5. Disclaiter of Warranties. THE CUSTOMER ACKNOWLEDGES AND AGREES TI -LAT THE COMPANY HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, PRO-NIISES, COVENANTS, AGREEMENTS, OR GUARANTIES OF ANY KIND OF CHARACTER WHATSOEVER, 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 A1,TD ALL ACTI'\TITIES Al,7D USES, (B) THE COMPLIANCE OF OR BY THE SERVICES OR ITS OPERATION WITH A.N—) LAWS, RULES, ORDINANCES, OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY, AND (C) THE MERCHP>NTABILITY, KARI�ETABILITY, PROFITABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OF THE SERVICES AND IMPLIED WARRANTIES OF CUSTOM OR USAGE. 6. Limitations of Liability. 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 Paity shall be liable for lost profits, lost revenue, or lost institutional operating savings. In no event shall the Company's total aggregate liability exceed the Agreement Price set for in Section 4.1 for the Services under this Agreement. 7. Indemnification. Company shall indemnify, .and hold harmless the Customer and its officials, employees and agents (collectively referred to as "Indemnitees") and each of them fiom and against all loss, costs, penalties, fuzes, 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 prop, . 1 arising Out of, resulting froin or in conricctlon with (1) the performance or lion-perfbrjnance 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 subcontractors (collectively referred to as "Company"), regardless of whether it is, or is alleged to be, caused in whole or part (whetherjoint, concurrent or conirib ruing) b-, my act, omission, default or negligence (whether active or passive) of the Indennrutees, or any of them or (ii) the failure of the Company to comply with any of the paragraphs herein.or the failure of the Company to conform to statutes, ordinances, or other regulations or requirements of any governmental authority, federal or state, in connection with the perfonnance of the Agreement. Company expressly agrees to indernnify and hold hornless the hidemnitees, or any of thein, fi•om and 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 employee or former einployee would otherwise be limited to payments under state Workers' Compensation 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 Infoimation in strict conndence and agree that it shall not disclose Confidential Information without prior written consent of fie other party. For ptuposes of this Agreement, "Confidential Information" shall mean all information, regardless of the form in which it is cominum icated, prepared or maintained (whether oral, written, or visual) by a party (the "Disclosing Parry") which is disclosed to the other party (the "Receiving Parry") in connection with the this Agreement and including all reports, analyses, notes or other information 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 InR n nation for the sole purpose of performing it obligations under 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 knovrledge, which is or becomes available on a non -confidential basis atom a source which is not lalown to be prohibited from disclosing such information or which was legally in the Receiving Party's possession without obligation of confidentiality prior to disclosure by the Disclosing Party. In the event that either Party is requested or required by legal or regulatory authority, to disclose any Confidential Irforrmation, the Receiving Patty 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 terms of this Agreement. Both Parties aclriowledge that the Disclosing Party would not have an adequate remedy at law for money dannages if the covenants contained in this Section 7 were breached. Accordingly, the Disclosing Paid, shall be entitled to un injunction restraining Receiving Party fiom violating this Section 7. 9. Ownership. Except for each Party's Confidential Information, the Parties agree that the IGA Report, including an), useful ideas, concepts, methods, procedures, processes, improven7erits, inventions, discoveries, and the like produced or composed in conuneeiion with woncC products resulting iron the Services performed shall be solely owned by the Company, not the Customer, and the Company shall own the intellectual property rights thereto, including all copyrights. The Company hereby grants the Customer a non-exclusive; hinited, perpetual, and royalty -free license to use IGA Rcport for its internal business purposes. The Customer agrees that, notwithstanding anything to the contrary set forth herein, as part of the Company's provision of the Services hereunder, the Company may utilize preexisting intellcctLial property, including without limitation software, methodologies, tools, specifications, models, samples and documentation, the Company's Confidential Information, as well as copyrights, trademarks, service marks, ideas, concepts, hcuow- how, techniques, knowledge or data, which have been originated, developed or purchased by the Company or by third parties wider ap .•eement to provide services for such third parties. 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. Governinz Law. This Agreement shall be governed by, construed and enforced in accordance with the laws of the State of Florida, exclusive of conflicts of laws provisions. 11. ludeDen dent Contractor. The Company shall be an independent Contractor- with respect to the Services ptrformed hereunder, and the Company shall not be deemed to be an employee, representative or agent of the CustoLner. Nothing ;l7 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 a, d, 6, 7, 9 and 9 shall survive the termination or expri'atron of this Agreement. 13. Severability, The invalidity of one or more phrases, sentences; clauses or sections contained in this Agreement shall not affect the validity of the remaining portions thereof so long as the material purposes of such document can be determined and effectuated. 14. Non -waiver, The failure of a Party io enforce, insist upon, or comply with any of the terms, conditions or covenants of this Agreement, or a party's waiver of the saint in any instance or instances shall not be construed as a general waiver or reli:aquishment of any such temps, conditions or covenants, but the same shall be and remail at all trines in full force and effect. 15. Assignment. 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 other«rise disposed of by either Party without the prion• v7ritten consent of the other Panty. Such approval. shall not be m -i easonably withheld. Notwitllst-mding the foregoing, the Company may assign this Agreement to an affiliate or subsidiary, upon prior written approved by the Customer. '16. Complete Agreement. This Agreement is composed of this doctmlent and all exhibits hereto. This Agreement constitutes the entire and final agreement and supersedes all prior and contemporaneous agreements, representations, warranties and understandings of the parties, whether oral, written or implied. .IN 'WITNESS WHEPFOF, the Parties hereto have e;:ecuted this Energy Performance Contract (EPC) Agreement for an Investment Grade Audit (IGA) by and through their duly authorized representatives as of the date first hereinabove written. TEM COMP INY: IPL Services, LLC By: Greg/- anion Its: VP afdd GM, FPL Services, "LLC THE CUSTO"' City of Miami, a ' 1prida M-Lmicipal Corporation By: Pedro G. Herz Its: City Manager Approved as to j!yWbrm: City A nP���� d AGREEMENT FOR INVESTMENT GRADE AUDIT Energy Performance Contract, Engineering & Project Plannin� Detween F'PL Services, LLC, and the Cite of'Minim' CITY OF IvII,4Igl, amunicipal Corporation of the State ofFloZida A'T'TEST: PRtSCLLA TEOMPSON�r CITY CLERK. Y-'� eil CITY MANAGER APPROVED AS TO FORIvi AND CORRECTNESS JUL -P �n CITY ? ORNTEY Au:iendix A - Investment Grade Audit Specificatioms 1. Service Locations: 3 i Fine -Rescue Traizuil8 tr. 3425 Jefferson Street $66,051 j 674,700 30,000 est. 4 Police N District Substation 1050 NW 62"`� Street $62,681 666,720 24,437 5 Mailulel Aitime Comm. Ctr. 970 SW IS` Street $55,903 571,920 1.25,000 est. 6 Police S District Substation 2200 W Flagler Sheet $49,386 522;600 16,546 7 Fire -Rescue Support Service 1151 NV/ 7"' Street $48,022 476,880 81,896 8 Fire -Rescue Station 41 144 NE Sty' Street $44,084 444,720 20,000 est. 9 Virrick Park 3255 Plaza Street $42,654 424,320 32,137 j 10 CLu•tis Park 1901 NW 24"1 Avenue $35,726 223,300 '15,000 est. 11 Manuel Artime Coin Center 900 SW 1St Street $36,754 273,600 8,892 Theater The cost to perform the Irivestiment Grade Audit, including the initial steps toward LEED certification and Enemy Star labeling, is $100,000, or approximately $9,100 per facility. Should the City decide to proceed to implementation the City may elect to include this cost as part of the overall implementation project. 2. Project Perlormance Criteria: This Energy Perfoimarice Contract (EPC) Agreement for an Investinent Grade Audit (IGA) will comply with Clinton Climate Initiative (CCI) Energy Perfoimance Contracting Best Practices (Appendix B). Where financially feasible, the IGA will include pursuing LEER for Existing Buildings Operations & Maintenance (LEED EBOl\/,) Certification and Energy Star labels. ® FPL Services will investigate renewable energy tcohriologies for the facilities listed above, and provide recommendations for use of such in IGA Report 3. Detailed Local or Site Specific Concerns: None rioted, 4. Energy Savings Technologies required by the Customer: Noire noted at tl>is time. 5. Payback Criteria.: As indicated in Section 4.5.1 above, the maximum payback criterion is 10 years for identified ECOs. The decision to include either LEED or Energy Star will ultimately rest with the City based on the additional cost and payback period required. 6. Timeline for commencing the FGA and submitting the FGA Report to the Customer: I� ;�amiTitg,�i�s, IN P-z'?+`U �Adci�zess�r� I�lry't9 ae lu't�`+�£�K {'{ n���tT'i !< rZ � tODFr �IN�����I16'� t b,40 � �SITY'YdYULt �.:ci fli „� ±����+'J�,�L�i �+ :7��, �'Y i`� fpe, i:c�3�Yf�i�•+i'�-z;i$F+i.Yt�� � N.��r'.:'. %� Police Ileal waiters City IIall lt;i:�.}�."�f, r )�s 400 NW 2"`� Avenue 3600 Pan American Drive $494,609 $69,112 5,426 400 654,000 r.:' 280,126 43,063 1 2 3 i Fine -Rescue Traizuil8 tr. 3425 Jefferson Street $66,051 j 674,700 30,000 est. 4 Police N District Substation 1050 NW 62"`� Street $62,681 666,720 24,437 5 Mailulel Aitime Comm. Ctr. 970 SW IS` Street $55,903 571,920 1.25,000 est. 6 Police S District Substation 2200 W Flagler Sheet $49,386 522;600 16,546 7 Fire -Rescue Support Service 1151 NV/ 7"' Street $48,022 476,880 81,896 8 Fire -Rescue Station 41 144 NE Sty' Street $44,084 444,720 20,000 est. 9 Virrick Park 3255 Plaza Street $42,654 424,320 32,137 j 10 CLu•tis Park 1901 NW 24"1 Avenue $35,726 223,300 '15,000 est. 11 Manuel Artime Coin Center 900 SW 1St Street $36,754 273,600 8,892 Theater The cost to perform the Irivestiment Grade Audit, including the initial steps toward LEED certification and Enemy Star labeling, is $100,000, 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 Perlormance Criteria: This Energy Perfoimarice Contract (EPC) Agreement for an Investinent Grade Audit (IGA) will comply with Clinton Climate Initiative (CCI) Energy Perfoimance Contracting Best Practices (Appendix B). Where financially feasible, the IGA will include pursuing LEER for Existing Buildings Operations & Maintenance (LEED EBOl\/,) Certification and Energy Star labels. ® FPL Services will investigate renewable energy tcohriologies for the facilities listed above, and provide recommendations for use of such in IGA Report 3. Detailed Local or Site Specific Concerns: None rioted, 4. Energy Savings Technologies required by the Customer: Noire noted at tl>is 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 FGA and submitting the FGA Report to the Customer: IGA "ILick Off' Meeting: The Customer and the Company agree to schedule an IGA "Kick Off' meeting within two weeks of executing this Agreement. IGA Retort & LPC Contract: The IGA Report cuad accompanying Implementation Contract will be provided to the Customer within 90 clays following the "Kick Off" meeting. Dnendix 11i — CCF Energy Perfoi-mance Contracting Best Pra dl'CeS i C i_ I N TO N 1E FOUNDATION INITIATIVE The Clinton 0imate Initiative Energy Performance Contracting Best Practices President Clinton launched the Clinton Climate Initiative (CCJ) in August 2006 to make a difference in the fight against climate change in practical, measurable and significant ways. In its first phase, CCI is serving as the exclusive implementing part ter of the C40 Large Cities Climate Leadership Group, an association of large, international cities that have pledged to accelerate their efforts to reduce greenhouse gas emissions. Expanding upon its work with the C40, CCI is partnering with additional cities, building owners and institutions to develop and implement large-scale projects that result in substantial reductions in greenhouse gas emissions. In May 2007, President Clinton announced the creation of an Energy Efficiency Building Retrofit Program. This program brings together many of the world's largest energy service companies, financial institutions, and cities in a landinark effort to reduce energy consirnption in existing buildings across the municipal, private, commercial, educational and public housing sectors. CCI COMVIIUMENT CCI will negotiate initial agreeinnents IO launch an —Energy Ei`fieiency Building Retrofit ofr Prograrn; 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 industzy best business practices for the program; work with buiildiing owners to stimulate incremental demand for energy I Eciency services among owners, negotiate streamlined procir--ment and reg ilatory processes that eliminate or reduce baiziers to the Progrann; and seep ceznplenlentary sources of fuuiding and credit enhancement such as IF1 financial guarantees, investment credits, and utility rebates to lower total Program costs and risk. ESCOp COMMFTMr"N'r CCI's ESCO partners agree to work with CCI and owners in good faith to maximize energy and other relatedsavings within a justifiable economic model that delivers sustainable performance from the building iinproveinents implemented, provide performance guarantees of Giicrjy savill�s, cxpanu Meir Businesses co meei rrograin growui, woric wiin uL;1 to lower total system costs and prices, and develop, in cooperation with owners, CCI, and other progran-i partners, mutually acceptable perfo7nancc contract terms and conditions. ES COs agree to use the Clinton Foundation's name or logo or any name or logo owned or used by the Clinton Foundation, or President Clinton's narne, linage, voice or likeness (collectively, the "Clinton Images") only with the express written consent of the Marton Foundation and agree that the Clinton Foundation has the absolute right to review and approve (in writing) any and all proposed uses (in their entirety) that include Clinton Images. The Clinton Foundation's written response will nornnally be rendered within seven (7) business days of receipt by the Clinton Foundation (or its designated representative), incl, if a response is clot received within seven (7) business days, the request should be deemed rejected by the Clitaton Fou nidation. ENERGY SERVICES PROCUREMENT AND )DELIN'ERY 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 DOwner RFP ° 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 Investmsnt ° Conformance Qualitative evaluation Figure 1 ° Energy engineering ° Investment proposal ° Service proposal ESCO PRE-QU.ALIPICA.TION &I INITLAL OWNER COTYIMITME NT ' Underwriting ° _quiiy participation Nmers niay pre -qualify a pool of qualified ESCOs. Pre -qualification is intended to be a high- level review of total ESCO capabilities rattler than a detailed evaluation. More detailed qualification information about local capabilities will be included in and submitted at the tine of an RFP. int ronowing conslaeranons wlir oe pari or me pre-quailrloatlon process: L)o cancilciate ESCOs have the requisite icclinical sI fills 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 employ project and product performance specifications that ensure the best value for buildinD owners? Do they have adequate financial bonding capacity and other attributes acecptablc to CCI, owners, and financial partners that influence the quality of their performance guamntees? RFF & ESC ➢ SELECTION Owners may invite a Request for Proposal (RFP) from ESCOs. Ouliiers may initiate projects by identifying specific btdldings to evaluate and establish threshold financial criteria for approval of efficiency measures (cash flow, simple payback, life cycle model). Owners requiring financing may allow ESCOs and financial partners to complete a credit check. ES COs will respond with any 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, 5) pastperiornance, 6) service capabilities, 7) interview peifornanee, 8) local resource mobilization, and 9) financial terns (e.g., walk -away fes; insurance coverage, bonding) and will award prime contractor responsibilityto 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 P.FP is a single tender with a defined scope of work that would normally be implemented by a sin-gle selected ESCO, it may sorn.etimes be .awarded to more than one ESCO. AUDIT —ENERGY PERFOPUYLANCE Coli'TRACT, EN AND PROJECT PL NTNTING After selection of arn'SCO 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 confirm 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. Ara EPC will detail the walls -away compensation that the ESCO will receive should the owner 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 month period (electricity, fuel, natural gas, water/sewer, purchased chilled/hot water & steam) tncivamg tenant space where energy may ne meterecl separately, u) the builctuzg occupancy and use, 5) any historical energy audits, and 6) any anticipated building changes and major capital improvements. This data will serve as a baseline for GEG 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 energy consuming systerns, building envelope, and other aspects of the site that may impact GI -10 emissions, such as operating procedures and occupauicy schedules, even when separate permission must be obtained from tenants to do so. I i ESTMENT - AYPROVAL, INPLEMENT4TION, AND PER OR MANCE ASSURANCE( ESCOs will audit, develop and estimate the cost of viable retrofit measures using-tTansparernt 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 implemented 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 with 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 further 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 all ESCO's product supplier selection to ensure use of suitable emissions -reducing equipment and technology. CCI will also make 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 energy and other related savings to be achieved and places specific 14iab ilit�, on the ESCO in order to assure performance. The guarantee will compensate owners for energy savings shortfalls that occur for which ESCOs are deemed liable. Owners will fiend the measurement, verification and maintenance services acceptable to ES COs to help ensure proper measurement, verification, operation and maintenance of retrofitted buildings for the terra of the perforivance, guarantee. . Measurement and verification (MS -,V) procedures will be guided by the International Performance I dcasurernmt & Verification Protocol JPMV?). Measurement will include a calculation of the reduction in GEG emissions generated by the project and ESCOs will report these to the CCI GIG Measurement Program. fAppenaax L; — u er• axis ana e-;oa UMOns l0r V i/01'X B+'aaaotet9 Uu dex .F RIC..) SPE CIA rL TEPJWS AND CON DITIJ OIL'S Table of Contents Number SuSu=bject Daae I.SPECIAL PROVISIONS RELATING TO 'WORK FUNDED UNDER. AMERICAN RECOVERY AND RELNVESTYIENT ACT OF 2009 (hday 2009) ...............................14 2.1 PORTING AND REGISTRATION REQUII.ENIENTS UNDER SECTION 1512 OF THE RECOVERY ACT................................................................ .1 S .).NOTICE REGARDING THE PURCI-I.ASE OF -AMERICAN-MADE EQUIPMENT AND PRODUCTS -- SENSE OF CONGRESS..............................................................19 4.REQU-IRED USE OF Al\=ICAN IRON, STEEL, AND MANUFACTU-RED GOODS — SECTION 1605 OF THE.AIVIERICAN RECOVERY AND REINVESTI�'NT ACT OF 2009-- ................ ............................................................... 19 S.REQTJ-aED USE OF AMERICAN IRON, STEEL, AND MANU-FACTUREDI GOODS (COVERED UNDER INTERNATIONAL AGREEMENTS) — SECTION 1605 OF THE AMERICAN RECOVERY AND REINVESTI\dENT ACTOF 2009.....................................................................................:................... 2 6.—WAGE RATE REQUIREMENTS UNDER SECTION 1606 OF THE RECOVERY 7k -CT--- ............—.............................,............................................... .............................25 TRECOVERY ACT TRANSACTIONS LISTED IN SCHEDULE OF EXPENDITURES OF FEDER-AL AWARDS AND RrCIPIEN'T RESPONSIBILITIES FOR INFORMING SU3RECIPIENTS....................................................................................26 S.DAVIS BACON ACT REQUIREMENTS...............................................................................26 1. SPECIAL PROVISIONS RELATING TO STORK FUNDED gD 1CTNDER AMERICAN RECOVER' AND REIIVVES']T'IVMgT ACT OF 2009 (May 2009) Preamble The American Recovery incl 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 spurting technological advances in science and health, invest in transportation, envirorunental 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 mariner that maximizes job creation and economic benefit. The Recipient shall comply with all terms and conditions in flae 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 subrecipients, including obtainiing 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 trac1drig 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 Govenunent has not fully developed the implementing instructions of the Recovery Act, particularlyconcerning specific procedural requirements for fie new reporting requirements. The-Recipient�Ti71-be providezl these details as the}r become avarlab7e-The��ecnt�rent 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. Definitions For purposes of this clause, Covered Funds means funds expended or obligated from appropriations Lander the American Recovery and Reinvestment Act of 2009, Pub. L. 111-5. Covered Funds will have special accou rating codes and will be identified as Recovery Act faulds in the grant, cooperative agreement or TLA and/or modification using Recovery Act finds. Covered Fuuids must be reinnbursed 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, cerLiricacron cz ouierproressiona ooay, an31 ageni or ucensee or ule reaerai govermnent, or any person acting directly or indirectly in the interest of mm employer receiving covered Rinds; or with respect to covered funds received by a State or local government, the State or local government receiving the Rands and any contractor or subcontractor receiving the funds and any contractor or subcontractor of the State or local government; and does not mean any departnnent,agency, or other entity of the federal government. Recipient means any entity feat receives Recovery Act Au -ids directly from the Federal govermnent (including Recovery Act fiends received through grant, loan, or contract) other than an individual and includes a State that receives Recovery Act Funds. Special Provisions A. Flow Down IT' ecuir•ement Recipients roust include these special terms and conditions in any subaward. B. Searezation of Costs Recipients must seg•egate 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 nom the Recovery Act shall be commingled with any other fluids or used for a purpose other than that of malting 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, acivarhim, zoo, golf course, or swinuning pool. D. Access to Records With respect to each financial assistance agreement awarded utilizing at least soiree of the finds 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 tinder section 3 or 80 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 subgantees, or any State or local agency achninistering such contract that pertain to, and involve `transactions feat relate to, 'die subcontract, subcontract, grant, or subgrant; and (2) to intervieuJ any officer or employee of the contractor, grantee, subgrantee, or agency rega_'dnng such transactions. L. 1'uoiica11011 An application may contain technical data and other data, including trade secrets Eaad/or privileged or confidential information, which the applicant does not want disclosed to the public or used by the Goveinineni for any purpose other than the application. To protect such data, the applicant should specifically identify each page including each line or paragraph 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 secrett-or propriet,1,7 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 subinnission 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 Govcrnmerit's right to use or disclose data obtained without restriction from any source, including the applicant. Information about this agreement will be published on the lriternet and linked to the website c,TMj.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 vrhein necessaiy 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 Goveimnitnt and Contractor ViTnistleblowers. 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 nder`tire American Recovery aiid ReiavestdlenfAct of a-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 eniorcennent agency, a person with supervisory authority over the employee (or other person workh-ig 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 nnanageme it of an agency contract or grant relating to covered fiends; - a gloss waste of covered fiends; - a substantial and specific danger to public health or saf ty related to the implementation or use of covered fiends; - 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 fiends. 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 aftrrmative 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. 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. None.nforceability of Certain Provisions Waiving Rights and remedies or Requiring Arbitration: Except as provided in a collective bargaining agreement, the rights and r- dies 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 fur -Ids 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 tine American Recovery and Reinvestment Act of 2009, Pub. L. 111-5, wuv�,.Recovery.gov, for specific requirements of this section and prescribed language for the notices.), G, Reserved H—False Clainis�ct 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 conunnitted a criminal or civil violation of laws pertaining to fraud, conflict of interest, bribery, gratuity or similar misconduct involving those fiu-ids. I. Information in SupUort of Recovery Act Reportintr Recipient may be. required to submit backup documentation for expenditures of funds Luider 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. Avanagimv or i irons 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 ApUro-oriate 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 certif ; 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 finds 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 governments, councils of government, public entities, and public-private entities within the State either by formula or at the State's discretion. L. Certifications With respect to fiends made available to State or local goverrnnents for inn•astructure 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 ends 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 Cold- icatiollis-Made acid posted. 2. REPORTING -4ND REGISTRATION REQ9IT€R' YIE NTS UNDER SECTION I512 OF THE, RE COVE, Y ACT (a) This award requires the recipient to complete proj eets or activities which are funded under the American Recovery and Reinvestment Act of 2009 (Recovery Act) and to report on use of Recovery Act fluids 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 Recoveiy Act. (c) Recipients and their first-tier subrecipients must maintain current registrations in the — Central Contractor Registration (htzp://www. ccr.gov) at all tunes during which they have active federal awards fli nded with Recovery Act funds. A Dun and Bradstreet Data Universal IN L111oC1111D 1V L1InDtr is olle or Tile requir,.rLacnls dor 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 elemenis that will be provided oniine at lzttlr//� nJi�.FedercilReporting.gov and ensure that arty information that is pre -filled is corrected or updated as needed. 3. NOTICE REC/iRD1NG THIE PURCHIkSE OF A14�iF' RICAN -la FADE EQUfPPYLENT A.ND ]PRODUCTS -- SENSE OF CONGRESS It is the sense of the Congress that, to the greatest extent practicable, all equipment and products purchased with fluids made available under this award should be. American-made• *Special Note: Dennitization of the Provisions entitled, "REQUIRED USE OF AMERICAN IRON, STEEL, AND MAINTUFACTURED GOODS — SECTION 1605 OF THE AI\ ERICAN RECOVERY AND RELNVESTIUiENT ACT OF 2009" and "REQUIRED USE OF AMERICAN IRON, STEEL, AND KA.NUFACTURED GOODS (COVERED UNDER INTERNATIONAL AGREEMENTS) — SECTION 1505 OF THE AMERICAN RECOVERY AMID REINVESTMENT ACT OF 2009" will be done upon definition and review of final activities. 4. REQUIRED USE OF I RICA -N IRON, STEEL, AND MANS UT'ACTUTEREID GOODS — SECTION 1605 OF THE A1VERICAAT RECO17ERY AIND REINVESTHENT ACT OF 2009 (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 worlt that has been— (i) Processed into a specific form and shape; or (i )=Combined-with-cther-xaw-w,aterialto- create -a�naterial -thatnas different propei2ie"s tl ail the properties of the individual raw materials. (2) Public building acid public work means a public building of, and a public work of, a governmental entity (the United States; the District of Columbia; cornu onwealths, territories, and minor outlying islands of the United States; State and local goverm-rents; and multi - State, regional, or interstate entities which have goverrnnental functions). These buildings and works play include, without limitation, bridges, darns, plants, highways, parkways, streets, subways, tunnels, sewers, mauls, power lilies, 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 bu ildiilgs and works. (3) Stec l_means an alloy that includes at least 50 percent iron, between .02 and 2 percent - capon, and may include other elements. �o) Lu�nes�t� pr e�erence. �i) lius aware term ana conation implements Section 1 OU5 of the American Recovery and Reinvestment Act of 2009 (Recovery Act) (Pub. L. 111-5), by requiring that all iron, steel, and manufactured goods used in the project are produced iii 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 FedeTal 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) hat—(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 proj ect 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 f r clete7-771inatio77 of inaz?plicabiliiy of Section 1605 of the Recove7y 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, 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, (lj) 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 goads 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 11 costs to the construction site and any applicable duty. `1Y) t -ug lcllplcllt lcgwr"tiL LUI U LLCLC1111111M1U11 SLLU11LLLCU al LCT 1C.t=VCry :ycL rurics nave ween 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 inalte a determination. (2) If the Federal Goveizunemt determines after funds have been obligated for a proj ect for construction, alteration, maintenance, or repair that P?n exception to section 1605 of the Recovery Act applies, the award official will amend the award to alloUj 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 o_0icial shall adjust the award amount or redistribute budgeted tiuzds by at least the differential established in 2 CFR 176.110(a). (3) Unless the Federal Goverrunent 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 pernnit evaluation of requests under paragraph (b) of this section based on um•easonable cost, the Recipient shall include the following information and any applicable supporting data based on the survey of suppliers: Foreigm and Domestic Items Cost Comparison Description Unit of measure Qnantity Cost (dollars)` Itetaz 1: Foreign steel, iron, or ruanufactured-good - - - � Domestic steel, iron, or manufactured good Am7 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. ttac copy of response; if oral, attach sununary. include other applicable supporting information. "'ll1C1UUC LLL LLC11VCrj' L:USLS LU Mr, OUnSL1-L1UW011 SUC. S. RB✓QDD D USE OF AMERICAN IRON, STIM iL, AND I 11ANURACTUREBD GOODS (COVE RE, D UNDER INTERNATIONAL AG£ EEMENTS) — SECTION 1645 OF THE AMI? RICAN RECOVE,RY AND RE, INVES' YLE' NT 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, Denniarlc, Estonia, Finland, France,. Germany, Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, Italy, Japan, Korea (Republic ofD, 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) coiuitry: 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. Desi, Zated country iron, steel, and/or manifactur•ed.. goods — (1) Is wholly the growth, product, or manufacture of a designated country; or (2) In the case of a manufactured good that consist in whole or in part of materials fi-orn another eoumtry, 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, andlor manufactured good — (1) Is wholly the growth, product, or manufacture-of-theUnited-States;-or- — (2) In the case of a manufactured good that consists in whole or in par` 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 t17e goods occurs in the United States, Foreign iron, steel, and/or naamz actured good means iron, steel and/or manufactured. good that is not domestic or designated couultry iron, steel, and/or manufactured good, —h/lanufactur:ed gooc�means-a-good-brought-to the -construction -site for-incoi�por,ation-into-the building or work that has been— (1) Processed into a specific form and shape; or `L) l-U111U1110L1 WILE UL1101 1CLW 11121LG112U LU UAZ;a LC U Ilie1LG11C11 L11T1.L 112LS U111e1C11L prupt rJUCS lilan the properties of the individual raw materials. Public building and public riror"IC means a public blinding of, and a.public work of, a governmental entit}/ (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 crid works may include, without liirlitation, br-idges, dame plants l iglhways, park ways, streets, subways, tunnels, sewers; maids, power lines, pumping stations, heavy generators, railways, airports, terminals, clocks, 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 alloythat 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 terns and condition described in this section implements— (i) Section 1605(a) of the American Recovery and Reinvestment Act of 2009 (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(4), 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 Recovery 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 fiom a Party 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 $1,443,000 or more. ✓ (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 theTederal 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 Goverxlment determines that— (i) The cost of domestic iron, steel, and/or manufactured goods would be'ulreasonable. The cnstofdomestic on, steel,�aud/oi manufactured gcols use e project is unreasona le when the cumulative cost of such material will increase the overall cost of the project by more than 25 percent; \_) --_1 --1 Ltuul vi 111CuiLtiuL.11u vu &," iJ i1VL !-/l lluuvvu, VI 111cu1LtlCLLrLLLlVU 111 L114 1.1111L'vL1 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) Requesf.fbr defeY71 ination Of inapplicablllfy Of section 1605 Of the Recover y Act Or the 13uy A77107-ican Act. (1)(i) Any recipient request to use foreign iron, steel, and/or rnarni actured goods in accordance with paragraph (b)(4) of this section shall include adequate infornsation for Federal Government evaluation of the request, includin— (A) A description of the foreign and domestic iron, steel, and/or manufactured goods; (B) Unit of pleasure; (C) Quantity; (D) Cost; (E) Time of delivery or availability; (F) Location of the project; (G) Naine and address of the proposed supplier; and (H) A detailed justification of the reason for use of foreign iron,,s' el, 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. (iii) The cost of iron, steel, or mamifactured goods shall include all delivery costs to the construction site and any applicable duty. (iv)A—ny recipient request —fora 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 amc ded award shall reflect adjustment of the award anlouiit .redistribution-of-budgeted-fivads,-and/or-other-appropriate-actions-talcen-to--over 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 176.11 O(a). ��� vuAL.Ju uaV A V..LV. u.L vV rVAaJ.LAAVAaL uVLVa.utiiaVJ uiau uaA V+aVVi,+ii v11 LV JVVLLVll L VVJ Vl L11V Recovery Act applies, use of foreign iron, steel, and/or manufactured goods other than designated country iron, steel, and/or 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 Renes Cost Comparison List name, address, telephone number, email address, and contact for suppliers surveyed. Attach cagy of response; if oral, attach summary. include other applicable supporting.information. `Include all delivery costs to the construction site. 6. WAGE RATE REQUIREMENTS UNDER SECTION 1606 OF TRE RECOVER' ACS' (a) Section 1606 of the Recovery Act requires that all laborers and nnechanics 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 N 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-iegalations-at 29 -CFR parrts-17,3—,aid - 3,,and-5to impleiiieat 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 Unit of Cost Description measure Quantity (dollars)* Iter�� 1: Foreign steel, iron, or manufactured good Domestic steel, iron, or manufactured good Ite»z 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 cagy of response; if oral, attach summary. include other applicable supporting.information. `Include all delivery costs to the construction site. 6. WAGE RATE REQUIREMENTS UNDER SECTION 1606 OF TRE RECOVER' ACS' (a) Section 1606 of the Recovery Act requires that all laborers and nnechanics 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 N 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-iegalations-at 29 -CFR parrts-17,3—,aid - 3,,and-5to impleiiieat 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 a5w1V11.0 Flu V1LL111p CL CLIILJ, 1UUYL.11:LLl V CL:,11L.111V11L0, "Lll 1VCL110 LLllllll Llll. 1\IIU VCJY AI L 111CL11 ensue that the stand ird 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 ap Dlication of Davis -Bacon requirements to a particular federally assisted proj ect to the Federal agency funding the project. The Secretary of Labor retains final coverage authority under Reorganization Plan Number 14. 7. RDi CO1rERY-,kCT TRS NSACTIONS LISTED IIsi SC H+IAY LEf OF EXPENDITURE, S OF FEDE RECIPIENT l� T !l` D' SPOINS BI LI L S FOR 81V1' CJ'E`�,IY.LA. G SCJ.L�11ti..1�!�CIPr r` N S (a) To maximize the transparency and accountability of funds authorized tinier the A1nerican Recovery and Reinvest-nent 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 Rinds. OMB Circular A-102 is available at http: //N)i4,i,i,. i4,h.itehoitse.gov/o7i2blcircularslaI O21a102.12trnl. (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 Circldar A-133 is available at 12ttp://�,ii,.i4;hiteho2lse.gov/ar2ab/cir•culars/a133/a153.ht7221. This shall be accomplished by identifying expenditures for Federal awards made tinder the Recovery Act separately on the SEFA, and as separate rows Linder Item 9 of Part III on the SF—SAC by CFDA number, and inclusion of the prefix "_42, A-" in identifying the name of the Federal program on the SEFA and as the first characters in item 9d ofpart 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 nuinber, and amount of Recovery Act fivads. 'M-ien a recipient awards Recovery Act funds for an existing program, the inforimation furnished to subrecipients shall distinguish the subawards of incremental Recovery Act funds from regular subawards under the existing program. (d) Recipients agree to require :.heir subrecipients to include on their SEFA information to specifically identify Recovery Act funding similar to the requirements for the recipient SEFA described above. This infornnation is needed to allov,, the recipient to properly monitor subrecipient-expendituu-e-of ARRA-funds as well as-oversi-ght by-tln.e Federal -awarding agencies, Offices of hlspector General and the Government Accountability Office. S. DAVIS BACON ACI' REQUIREMENTS Note: Where necessary to make the context of these articles applicable to this award, the term V MILL CLI.+LVl 011C111 1111.GL31 1LL+V1IJ1Vlll CLUU L11L. LV1111 OLLVL.U11L1CLI LU1 J11CL11111GCL11 0UUIUUIJJ1G11L UI Subcontractor" per the following definitions. Recipient means the organization, Individual, or other entity that receives all 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 awu•d. 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 terns may include foreign or international organizations (such as agencies of the United Nations). Davis -Bacon Act (a) Definition. --°Site of the work" -- (1) Means -- (i) The primary site o 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 btuldina 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 iii paragraph (3) of this dennition, includes any fabrication plants, mobile factories, batch plants; borrow pits, job headquarters, tool yards, etc., provided -- (i) They -ze•-rledicated-exclusively, OI` nearly so; to performance of the award or prof ect; and (ii) They are ad j acent 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 para_,:aph (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, j ob headquarters, yards, etc., of a corrunercial or material supplier which are established by a supplier of materials for the project before opening of bids and -not -on Ahe -Pi oj ect-site; areiiot included in -the -"site ofIhework. "-Such peffi1a ent, 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 worldrig 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 CI'R Part 3)), the full anrou nt 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 nneorporatcd for a secDndary sate of the work, regardless of any contractual relationship which maybe alleged to exist between the Contractor and such laborers and n7echanics. 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 Hinge benefits tinder section 1(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 weeldy 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 incuured during such period. (3) Such laborers and mechanics shall be paid not less than the appropriate wage rate and fringe benefits in the wage determi nation�for the classification of worlc 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 wont is performed. (4) The wage determination (including any additional classifications and wage rates conformed iuider paragraph (c) of this article) and the Davis -Bacon poster (VAI -1321) 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 Ofncer 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 a-arard 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 Tide 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 lmown), or their representatives and the Contacting 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 Officer to the Administrator ofthe: Wage and Hour Division Employment Standards Administration U.S. Depeu mien 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 notify. the Contracting Officer within the 30 -day period that additional time is necessary. (3) Iri 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 fHnge 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 Houz 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 wort: in the classification under this award from the first day on which worlc 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 detennnination or shall pay another bona fide frin-e benefit or an hourly cash equivalent thereof. (e) If the Contractor does not malce 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 Mulder 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 beenfilet. The Secretary of Labor may require the Contractor to set aside in a separate account assets for the ineeting of obligations under the plan or prograni. -1.1— -- " ...�..✓ - -- rtir. ✓ r — a. t,i .. a vvvva.aa�.at, r"— .✓ u r ♦u 1-- 1 V AWLJ If the Recipient determines at my time that any construction, alteration, or repair activity as dcfned by 29 CI~R 5.2(j) (Llan://efr.vlcx.com/vid/5-2-definitions-19681309) will be performCd during the course of the project, the Recipient shall request approval from the Contracting Officer prior to conmeming 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 crust comply with all applicable Davis -Bacon requirements, prior to conlnlencing such work. A modification to the award which incorporates the appropriate Davis-Bacoil 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 OElcer will so notify the Recipient in writing. ACOPD,„ CERTIFICATE OF LIABILITY INSURANCE 10/1214 YYYY) ' PROOUC-cR t MARSH USA INC. 3475 PIEDMONT ROAD NE, SUITE 1200 ATLANTA, GA 30305 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW, 713170 -MAIN -CAS -D9-10 INSURERS AFFORDING COVERAGE TWAIC r INSURED FPL GROUP, INC. FPL SERVICES, LLC NdsURERA. FSderal Insurance Company 20281 INSURERS: New Hampshire Insurance Company 12TB41 ATTN: ERICA MCNABB INSURERc: 700 UNIVERSE BLVD National Union Fire Ins Cc Pittsburgh PA 19445 D: JUNO BEACH, FL 33408 INSURER INSURER E: COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. 0S LTRIWSR� ADD' TYPE OF INSURANCE POLICY NUMBER ( POLICY "EFFECTIVE IDATE (MMIDDIYY) PODCY EXPIRATIONS I DATE (MMIDDIYY) LIMITS A X GENERAL LIABILITY X COMMERCIAL GENERAL LIABILITY 3711•DS-31 09(15109 09/15/10 I EACH OCCURRENCE , - 1 ODD 00 DAMAG=_TORENTED 1,000,000 PREMISESEia weurenca CLAIMS MADE � OCCUR MED EXP (Any ano person) S 10,000 PERSONAL&ADVINJUP,Y �� 1,000,00 GENERALAGGREGATE 21000,00 . GENERAL AGGREGAT^"LIMIT APPLIES PER PRO- n LOC X POLICY F PRODUCTS-COMP/DP AG 1,OOD,000 IA X AUTOMOBILE }; LIABILITY ANY AUTO 17352-37-44 I{ D9/15109 09115/10 COMBINED SINGLE LIMIT I 1,000,000 (Eaccident) I{ ALL OWNED AUTOS BODILY INJURY SCHEDULED AUTOS (P person) BODILY INJURY $ HIREDALITOS NON-OWNEDAUTOS (Per accident) PROPERTY DAMAGE (Per accident, $ GARAGE LIABILITY AUfO ONLY - EA ACCIDENT ANY AUTO { OTHER THAN. EA ACC AUTO ONLY: AGG EXCESSIUMBRELLA LIABILITY EACH OCCURRENCE ISS OCCUR CLAIMS MADE AGGREGATE 's _ DEDUCTIBLE ) RETENTION 5 B B B WORKERS COMPENSATION AND EMPLOYERS'LIABILITY ANY PROPRIEfOPPARTNERrEXECUTIV„- OFFICERIMEMBEREXCLUDED? It yes, desodbeunder SPECALPROVISIONS below WC 7267708 (AOS) WC7207709(CA) WC 7209332 (TX) 1NC 1591038 (WI) 09/15/09 08/15109 09/15I09 09/15/09 09/15110 09/15/10 09/15/16 ,S.LDISEASE-EA'EMPLOYE�$ 09/15/10 - X IWC STATU-'I IOTH- I Pp t' EACHACCIDENT I 1,000,DO 1,000,D00 L DISEASE-P41CYLIMIT `$ 1,000,DO C OTHER WC 72 D93 31 (FL, OR) 09115/09 09/15/10 DESCRIPTION OF 0PERATIO NSILOCATIO RSNEHICLESIEXC! USION5 ADDED BY ENDOP.SEMEENTISPECIAL PROVISIONS CITY OF MIAMI IS INCLUDED AS ADDITIONAL INSURED (=XCEPT WORKER'S COMPENSATION) WHERE REQUIRED BY WRITTEN CONTP,ACT. WAIVER OF SUBROGATION IS APPLICABLE WHERE REQUIRED BY WRITTEN CONTRACT. . CERTIFICATE HOLDER ATL -002066093-01 CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE CITY OF MIAMI EXPIRATION DATE THEREOF, THE ISSUING INSURER WILT_ ENDEAVO R TO MAIL 444 SW 2ND AVE, 5TH FLOOR 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TD THE LEFT, MIAMI, FL 33178 BUT FAILURE TO DO SO SHALL IMPOSE_ NO OBLIGATION 611 LIABILITY DF ANY KIND City Hall ® City Sa6i1i 3500 Pan American Drive ',.� Miami. FL 33133 �, ��� www.miamigov.com fluster Report rQ l:ti Enactment dumber: R-04-0620 File Number: 04-01027 File Type: Resolution Status: Passed Version: 1 Reference: Controlling Body: City Commission File Name: Energy Performance Agreement with FPL Introduced: 8/31/2004 Requester: Cost: Final Action: 9/2312004 Title: A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT, IN SUBSTANTIALLY THE ATTACHED FORM, WITH FLORIDA, POWER AND LIGHT, THE TOP-RANKED FIRM IN RESPONSE TO REQUEST FOR QUALIFICATIONS NO. 01-02-224, PURSUANT TO RESOLUTION NO. 03-250, ADOPTED MARCH 27, 2003, TO PROVIDE ENERGY PERFORMANCE SAVINGS SERVICES FOR AN INITIAL TEN-YEAR PERIOD, WITH THE OPTION TO EXTEND FOR ONE ADDITIONAL FIVE-YEAR PERIOD. Sponsors: Notes: Indexes: Attachments: 04 -01027 -cover memo.pdf,04-01027-budgetary impact.pdf,04-01 027- pre reso luti on.pdf,04-01027-list.pdf,04-01027-exhib it.pdf, History of Legislative File Version: Acting Body: Date: Action: Sent To: Due Date: Return Date: Result: 1 Office of the City Attorney 9/16/2004 I City Commission 9/23/2004 Reviewed and Approved ADOPTED Pass I Office of the Mayor 9/27/2004 Signed by the Mayor 01), of Miami Page 1 Printed on 611612010 ,- - C/a M City Hall �.�y ®f Miami I 3500 Pan American Drive Miami, FL 33133 Y, wwv.miamigov.com Legislation Resolution: R-04-0620 File Number: 04-01027 Final Action Date: 9/23/2004 A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT, IN SUBSTANTIALLY THE ATTACHED FORM, WITH FLORIDA,. POWER AND LIGHT, THE TOP-RANKED FIRM IN RESPONSE TO REQUEST FOR QUALIFICATIONS NO. 01-02-224, PURSUANT TO RESOLUTION NO. 03-250, ADOPTED MARCH 27, 2003, TO PROVIDE ENERGY PERFORMANCE SAVINGS SERVICES FOR AN INITIAL TEN-YEAR PERIOD, WITH THE OPTION TO EXTEND FOR ONE ADDITIONAL FIVE-YEAR PERIOD. WHEREAS, pursuant to Resolution No. 03-250, adopted March 27, 2003, the City Manager was authorized to negotiate a Professional Services Agreement ("Agreement") with Florida Power and Light ("FPL"), the top-ranked firm in response to Request for Qualifications ("RFQ") No. 01-02-224; and WHEREAS, Resolution No. 03-250 directed the City Manager to present the negotiated Agreement to the City Commission for consideration; and WHEREAS, subject to the terms and conditions of the Agreement, FPL will conduct energy audits at facilities selected by City staff and identify candidate energy-saving projects; and WHEREAS, the project candidate would be implemented utilizing a comprehensive performance contracting approach, including but not limited to, energy audits, energy cost monitoring, project financing, and a guarantee that the total program costs will be 100% covered by program energy and operational savings; and WHEREAS, the Department of Capital Improvements and Transportation shall be responsible for the contract once executed; and WHEREAS, the projects identified by the feasibility studies initiated under this Agreement will be subject to Section 489.145 of the Florida Statutes, also known as the "Guaranteed Energy Performance Savings Contracting Act;" and WHEREAS, the State of Florida determined that investment in energy conservation measures in public facilities can reduce the amount of energy consumed and produce immediate and long-term savings; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Resolution are adopted by reference and incorporated as if fully set forth in this Section. Cite of Miami Page l of 2 File 1& 04-01027 (Version: 1) Printed On: 6116/2010 File Number.' 04-01027 Enactment Number: R-04-0620 Section 2. The City Manager is authorized{1} to execute an Agreement, in substantially the attached form, with FPL, the top-ranked firm in response to RFQ No. 01-02-224, pursuant to Resolution No. 03-250, adopted March 27, 2003, to provide energy performance savings services for an initial ten-year period, with the option to extend for one additional five-year period. Section 3. This Resolution shall become effective immediately upon its adoption and signature of the Mayor.{2} Footnotes: {1} The herein authorization is further subject to compliance with all requirements that may be imposed by the City Attorney, including but not limited to those prescribed by applicable provisions of the City Charter and Code. {2} If the Mayor does not sign this Resolution, it shall become effective at the end of ten calendar days from the date it was passed and adopted. If the Mayor vetoes this Resolution, it shall become effective immediately upon override of the veto by the City Commission. Cite of Miami Page 2 of 2 File Id: 04-01027 (Version: 1) Printed On: 611812010 MASTER AGREEMENT FOR DEMAND SIDE MANAGEMENT AND ENERGY E=PI-MENCY SERVICES WITH FLORIDA POWER AND -LIGHT COMPANY THIS f AST_ r+vREEI, 47 hnis araemeni'j z made and enteral tela as of the 7 th Car of i?�enemib r ..20N (tiie'Effective'Date ), byand between Florida Power.and Light Company (the ' ompany') and The -City of Miami (the `Customer") (the Company and the Customer each :being relemed to herein individually as a "Parry' and roltecbveiy as the "Parties'). -firth faference:to the follo'Ong: REMALS The Cocrnany.is in.the'business of providmg.deman-i side management sv&es`far customers of -Fbrda Flower & U. -Ph', Company ("FP&Lai pursuant to a Company initiated 'p*og,aot 4aDvin as the Energy nimiency .`eAczz;s 1 PrCumm (the 'Program'): a. The Qu-,=er has is; -T44, ,,, bwlt 3C :M the Pro' -'rim -..y -oonsWenrig fivt n nshmy aad uperanin, or a fazili-5es wig: tai eb%eR', cq;i:prr«er' and sysi i1 zter b a: im,ve. lei: aA 91--ciii: di Land rJ ena•g>,' sa„ s: and Pursuant -toms Avetamern, vmi flerfies vrGi, to se, #Until Inest undSawandi ng monou frig vedain eaeq', of a&1: s aM=s Itne `Services') v) be,pr0yid_,d by the -,=zany to the 1sU51dmr u;n�!er the Tlitsrarn. NCYAt, TH_R=FrCRE, in =nsideration of the mutual promises and apretments set forth herein, tie -Parties, ,.lending-' be lecaliy-bo red her eay agree as.fallows: ARTICLE 1 SCOPE OF AGREEMENT ANb TERM 1,0i Scone. Suijoct to the terns and conditions of Tnis Agra meet, the Company shall furnish, and the Custoime. shall ;chase and re.-eive, Serviwa re—W sted by the. Customer " U'm t{me tc lime vriN res; Mcl to c° m sp d ted .Ir, s ci.u'ie CuOomer (each, a'Satvice Location') and with rrsp ,2 to sp f{L" Ent y cor-sonm!i , oppmm...?':' (east, a'r, `.GCv'� idanGf�d at a ;p'M .. f.0�aii31. bhe Sarvci;s i. be turnisha�' iry Gi Company with respect to each Service Location and with respeet 10 ECGs identified at .a Seruire 1ocaii0n shat! :be set :fottn in .a suppi°manttctttis Agreement taach.;.a'Supplemental Agreement' which will to mutually agreed upon and executed by t)oth Parties prior to the Company.commencing.work.at any designated Service io::atiorn. Each Supplemental agreement (a farm of :vrhich is attazinev.as-Exhibit A to this Agreement) shell cover one or more .Serum Locations of the Customer and shall consist of the fglhving imms and sc*:urles. Torr, of Supplemental AVeernem Swedule ?. • Specifica6omof $ervi Lodd o (5} 'S�red:rle :$-=oln,of kiidt+, ReAues'. Schedule C - Form of Agreement for Fiaasib iity Stuay Schedule C - Form of =Engineering and Design C-TUPr S ned as = corm of Construct i a1d trrsot�ri€tafiOn Ord.-, Bute crr'i et Ceitir:ale of F%na A-rcep*,a,) ScheWi le. G Fom=Df Payment Apreemez t Ux-ra exemton of.a Supplen-ental Agreement w any Sarsdz:; the -rata by the Fames, sx!! 3vwementai :Agreernam ar SchCnd ri> s 3a"I tsd Natirng z r 1hm" tips and sha" tae sir otpxated herein try refemmce as p'ar`e-tit :his-Agreerr M. In theeventof any conlik- e_NiRen this, A;t---melt and a Svpplzme'ntal Aar-„ Inert or Sc'-uulee thereto, eh$ terms.and:provissons oftftis Agseeimn as amend°.,: from .time to.time. WIN! control, and in the event. of any contlicr xetw`en or among a .SUppkemonhil Agreement avid the Schedules thereto, the document of: the latest Cate mutually agreed upon by the Parties shall contral. Tne woM to be per`farmed involves a two -phased promss_ Phase 1- the'provision of an energy audillstudy per Schedule C of all ttie'fa�liities being mnsid»red for the opu0ication of ertvgy consem,al�i measures, as dosigriated by the Customer. This audit phaseshall f all be sell -funded by the Company and shalt result in a v 44F 1 .!!PvesegrffWil lo lhs CRY.: Phase 2 - Any, and aL audit Mals, will be applied toviard this phase a1.; stiatt e:1aass cue a:i^ssti0+1:.1d i1:'w:;'r ai the Safe --led s.�!+�•wn y .Jam Axzy,9eCQs. conserva= a d i iivtse i.: =Uvem t cteas3 es a'^o diff t_ 1.02 'term. Ttns ,greemerit shall 4 mmence, upon Lne :ft.>..iiYB gate and.shall corrunue in eiie t iat ten '10) yeas upli w tten notice of-terminabon oy either ?any in aecordance.4dUt the provisi3ns at Article 15 hereof_ oar vided trial V; on.such wri!ten notim of termination, portions of ffi s Agreement and of one or more. Supplemental Agreements previously entered into by the parties shall remain in effect as set scab zt Article: 15. The City wlr have the optior: b Wend the term for one (1) additional five (5; year -:.nod. :.03 {nterfm Period. -S, ect to ilhe foPavrrmc senF nce, the term o trits k?t mn r'=. siiall cornme n:e u:i!-t the cars -o`: e=utiori by, the pa. fghe E ieL<iw Date). A& energy sarngs athieved durog the'tntanm, Period vifl be fuily credited to the Customer. Froll'm Ing eicecttfor,the Agreementmail bee uindmg on the parties- The period tetiivoen execution 0i the Agre&'nent and r.0 implementation acceptance by the Cuslomet shall be known as tie 'Interim `eriod'. 1.04 tricuMoration by Reference. City of t0iamiRr7Q 0;- 02.224 for Energy Pericurnanc:, Sayings Contracting Serres. and Ime Company's R%panuie, are dearned as being incorporated by reference hm•.at as d.set'fcVji in. full. These cowments. are stip.^.=rn, ,n --t terms to ti„Qrs-=rnet:. It, the u e nt 0f annt mums cnu: 3 bz_tR,—__z Eley Agreenat` indthese wo-rtnanf um Aar �' re_ n1 i.M conuol AitTICL E.2 ENERGY AUDITAND =`ASIBILf i Y :STUDY 2;0,1 Initiation of Audit. From time to time upon the request of the .Customer, the Company will meet :vAlh .the Custorner's energy personnel to identify Service;Locaticns to be includerl a-Crmpany assisted energy,offJciency audit. The Pasties will agtet aspen Mutually a e;iiihte audk pro--dtrres and soneauies, identffy energy savings tcchnaagier. to be reviewed, Eelermne the paybact cnlena .aesired b}`{ha Gr: fa z1P w ith tesce fc new instaaaw , and al regi upor, corer mat'Iers vilth respect to the gudil, all as se imlh in a Suppfementa Ayreemententered int, by the Parties at such time, which shall include an exeattled Schedule A (Spe livalion of Service Location(s)) ,.and an executed Schedule B (Audit Requesit. All of the Services to be provided by the Company in performing or assisting in such audit shall be permrmed by the Company at no cost to the u!s ta::::,. a:cn dance w,:i the mums an c' :znarJ'3nS Ci SU -1 SuPpremientai Agreement and "nelujes, 2.02 Audit Report. Upon completion a: an audit conducted by the Bari es pursuant;o Section.2.01, the Company shall suomit to the Customer an audit report tan 'Audit Report') fdenf 'ono Potential 'ECas, if any, at the Customers .Service .LccaGons) which the Company believes may be cost effective to implement and which. maymeeldhe Customer's payback criteria, as set forth in the Audit Request. The Company shad designate in the +ludas Repo.- those =CCs, ii any, for which it recor mends lliv a .detaited feasibility study be perfommd„and. the Custerner shell haveth€rty (30) days Lom rel ofthe Audit Repro to notilythe Company 'tttre5ha' the Custromu a;stres to receive .a f=esibidty study rmcrasai ';um the Company connarrtiry such EMS. If #it, ta=ts to regttetw.suclr a .prppysal ihtun the titir ly (ii axy pennd, the Company's obligations under In, Supplemental Agreement aovenrip the Service Locations) of 1he audit .shall terminate, without further liability of either Pasty thereunder. If the Customer requests a feasibility study proposal within.such period, then the Company shalt suomitsuch 4 -proposal to the 'Customer, wi'ch shall include a designation of the Services to tie provida the:€echnalpaies to be Included in the study and the compensation tc:oe Paid to:the Company for such Services. The proposal also shgli Include a completed Schedule C (Agre=_tnentint Feasiblily Sturdy) kf the Supplemental Agreement, t De executed.:bJ in,, Castcxner :and returned to the Company ti'ai.,ct ttufy (.3j days of tr Custottme05 ieoe.;n of 3rte proposal. If 1he C::sicmer fak to ex --WL- and ret'.tm. to:the Companyvie ie Scaerfuie C .within soon p=rim', the Company's .oblipations under the .Suppfementei Agreetnatt wall rarninate, a thout furtfier.liabaTny of either Party thereunder. if the Cusiopreraxcautr s and returnstheScheduitt then the Company Snell perform the feasibility:study.in.amurdance +viththe terms1herecd 2.173 Feasibility Report., Pursuant to a feasibility study performed .by the Company as set forth in Section 2.42, the Company shalt re;ccinmend ECGs for :implementation at the Service Location(s)surveyed based .un a fife -cycle cost aaatySes. and estimated energy savings far each SIM- The Company shat niepara znd subm, to the Customer a vrdtir repo;t'(a'"Fea s itily Rerar`°j.sp•acillysng each .recrinmerdedECO and providing tar ea h an es€imait :of (a) the expect;:.d impiarneniation Cost, (b) the anficipated life -cycle cast savhnps. and (c) the estimated tim>n; for imolementatian, ali of which shall be estimates only, based on the Companyts reasonable assumptions, In the case .of each ECO examined in a Feasibility Report, the Company shall provide sufficient information to determine whether the Customer's payback criteria described hi Scheduie:C (Agreemertf for Feasibility Study) of the Supplemental Agreement are expecled to met based or: the Company's estimates. Subiect to the provisions of Schedule C, if the F-easibitity Repon submitted by the Company does not identify at least one potential ECO whtch meets.the Customer's agreed upon paynact criteria, the Customer shalt be under no obiioall to pay the Company for the Feasibility Report. `he Company shall bill the direct cosl associated with the Feasibility Report plus reasonable.overh€adiproit; not to exceed five percent which is acceptable zo Customer. 2.04 Engineerino and Design Order. The- Customer shall have thirly (30) days'follotuing receipt of a =eastbility Report .to determine if if wishes to proceed with the implementation of any or all of the ECS recommended by the Company and to supply the Company with a Its! of the :COs approved for further action by the Company. If the Customer fails to supply the Company with. a fist of such approved =COs within such thirty (3'3) day period, the Company's obligations under the applicable Supplemental Agreement shall terminate. without further liability of the Company, and the Customer shall pay the Company for the feasibility, study in acxroance with the provisions of Schedule C of the Supplemental Agreement (subject to the terms and conditions thereof. If. however, the Customer wishes to proceed with the implementation of .one o; more ECDs and provides Lie Company with a list of approved ECOs in accordance wfth the foregoing, the .Company shall prowr!L the Cvstomer with a proposal to develop the design and detailed cosi esfrriate for each approved _CC, which proposal shall include all Services to be. performed by the Company in order to quote a definitive fixed price for the installation of each such approved ECO.and the compensation to be paid to the Company for such Services_ The proposal also shall include a completed Schedule- D (Engineering .and Design .Order) of the Supplemental Agreement, to be executed by the Customer and returned to the Company within thirty (30) days of the Customer's receipt of the proposal. If the Customer tails to eyw ule and return to the Company the Schedule D Mthin such period, the Company's abl;gau;cns under.ihe applicable Supplemental Agreement shall terminale, without further liability of the Company, and the Customer shall pay .the Company for the feasibility study in accordance .wrath the provisions of Schedule C of the Supplementai Agreement. I. the Customer executes and relums the Sthedute D, then the Company shall perform enoineering and design services in accordance with the terms Thereof. ARTICLE 3 DESIGN AND INSTALLATION 3.41 Design Services and Estimate. Unless otherwise set forth in Schedule D, lira Company snail prepare and develop, or cause to be prepared and developed. designs, specifications and installation dra%N ngs for each approved =CO identified in Schedule D and shall prepare, through solicitation of bids or ofherwise, a detailed cost estimate and proposed implementation schedule for eaoh such ECO. The Company shall coordinate its design and engineering work with the Customer's energy personnel, and a joint technical review shall be conducted with the Customer, as set forth in Schedule Lh, when the design documents are approximately 35% and 951k complete. Designs and spedfinbDns shall comply vrlh all applicable laws, codes, standards, regulations and permits (if, arty) and shall be available for inspection by the Customer at.any time during normal business hours -upon reasonable advance notice. Ubon the completion of design and developTeni of a final cost estimate for each approved ECS, tae Company shall submit to the Customer a design document (a "Design Document`) and fixed-price installation proposal (an "Invalialfon Price Proposal"); as set forth in Schedule D of the Supplemental Agreement. 3.02 Construction and Implementation Order. If, on the basis of the Company's submission, the Customer wishes to proceed. with the installation and .constructon of ane or more ECCs in accordance tiv:th the Design Document and Installation Price Proposal, the Customer shall no6ry the Company thereof within thirty (30) days of the receipt Df -such submission. and the Parties snail ihereuraon complete and execute a ScheduleE fConsiruction and Implementation Order) of the Supplemental Agreement providing for such work, The ScheduleE shall include the Services to be performed by the Company and roe price to be paid by the Customer with respect 6 eawh sum installed ECD. Pnor to executing a Schedule, the Gompary will consul; with the Customer regarding the selection of any third.party contractors to be retained by the Company to perform instafation or construction wort, at the Customer's Service Location(s) {each, an "Implementation Contractor'). and the Company shall not select an ImpiementaEon Contractor to which -the Customer has a reasonable objection rovi?iad, however,. finalany increased cost resultng from the need to select an alternative Implementation Contractor shall be borne by the Customer). If the Customer does n•ot wish to proceed with the installation of any ECO in accordance w;th the Design Document and installation Price Proposal, or if the Paries fail to complete and execute a Schedule E within thirty (30) days following the dale of the submission of the Design Document and Installation Price Proposal 41-- <Lmr_M epi ed. M die 1trs'lvomer, then the Ccmpanp obtgalioriB tinder the applicable .Supplemental Aareerrten: snall terminate, wttn= funrertiabitiry of the Company, and die Customer shall _pay the Company for [is Serves r .a c dac x with the provisicns of Schedule- p of one Supptemerital A;ic-ement t' the Customer etez5 to Drociew vzth w ECO alit the-Partie3 Ent.r,,-- a s hed,10- E in accordance widr the tumpaing, then rite Company s'hati prrwe constnrdi,;,�r and sista "attur slasices in, a dancettJntheprov"ZIOnsthTrent, .3m Fiimination of Schedules. mimil standing any provisim in trhia Awrrutnl to tete onvary, itte Parlm may eiecv by mutual aa*eemsiml, to elt male and torego am, of the Ste Ds ouUmed above and Sal iottn.in Schedules B. C,.and .0 of the Supa:emental Agreement, and., in hay. thereof. tie Parties maf aar-_D:toenter dre- iy into:a:Schedule S (Construction and tmpiementatiion Cder).an tine basis of a fixec price pmposal log one or more ECCS submitted Dy the Companyto the.Custamer to, the Service-Locadon(s) sel forth in 8rhedufr:A wO, an election may occur, for example, in tire: case cl a staadare CO Identified by the Company in an Audit Report, whish is of such a nature that.iLidoes not require.a teasibifily.study or design and engineering services in order for the Company to pwcle,an estimate and quote a fixed•price;proposat,=.orin:order for the Customer.to request that the ECO:be implemented. In such a case, a Supplemental h(rre nlent may rotSSst.of S9me bul 1,161 all of tate Schedules Gstad in Section 1.01 of this Agreement. and, .upon entering into a Schedule E of the Supplamental Aareemant,.the Parties. shallhedeemed to have vraived the preceding provisions of this A,roemenl which are no loriget applicable. 3_04 Financing, financtrtg for both Po-asa Land II .=_ha!I be arranged by the Company, acid pat! trom energy and operatbnaf savings_ -wi:ri 100% of ore wrg5 ob:nT the guaranteed arnouru to be Me stile property of.t ul Customer. Thome -shat be no initial capital cost to the CLutomer. The Cusiorne , however. reserves tie uncondition3' rs ht to find :aitemate fundis Should .it so desireduring dna term o :hsps agreernmt .Tau design, a:qufSition, :artii instaGalion of ernergy rnea ;Ires should t}e.mc jec so Irm the fr ergy sava'rgs. maintrnanoe savings, and avoid?d ;,ap':a`- eap-7,5€ture4 azh�aved by vie mstated we-gy measures are sumtderlll to cov=e: the: estt�e too perm—l! (1Ct 1) of 9, prat guts fry the duralim of tips .47eernan:. to a rda—^ .tri s: 4&9.145., =tarda tufa=s ( .S'j, as a nend%d nsroy and ma htanance savmps must result through e5r,^aaciy impro eanents assigned to maintain ekstng or improved perform= levels. in the event tttat the actual savings are less than frie guaranteed savings, the Campany Shall protide cast; reconcliatim to the Customer of die difference between guaranteed and a:tuat savinr , if rite achta[ savuips are greater than fie cue ar, nod savings. Chir City wilt have Mmplet_ otvn--ship of any surpus:saving,.. 'the Compvnys-gaaantet shalt be a Frst party.dirAc-t guarantee from the wo npan f tc the Cusiam>Ar. uF bt rd party guamntae-, str-- as a non- cantart�r msurarme =z=any. Shelf be a=te.. As set iom in Schedule a of the &a apfernental Agreernen: the Comparly may, if the Customer mez;s the comi ys area c8eria_ moYae the Ct_ m mer are -optw -of .do -n -m ng C.=Dan�,v iumoined bracer dog b, insta e B CIS, in t.^it;2h case the Cir ger gnarl =l the C=Dany fog its Services Vfth rte°: to Such instar_ sca by, means of a monthly Benbe Charge lot a period o; iiia (Itw "Payback Pe OT) agrene to :by fm Paties: f;. Offered by rte Company and requested by the, C shimar; #1re terms and mndit ors pl�Sucb COUlpany#umistted:frnandng,:inducing the.animintLf me mcrrifhiyr.Senhce Charge and tem, o4he Paybad; Penod, shail.be agreed to by me Parties:end sel forth in :a S -_dude G (r'aymeril Agreement) of the Supp9amentat AgMement, >which. rogether with Exrtbit A (Customer Consent) a such, Payrrrent Agreement, shall be axemied by the Customer and returned to the Company conurrertly whit the execufiwn and return of . Schedule "c (Construction and .Implementation Order) of .the Supplemental Agreement. The Customer acknovrledges and agrees that the Company, with `the Customers ,written consent, may transfer or assign, for [mancing purposes, to one or moire assigniles, all or any part of the Companys right to receive payments under any Schedule G, and, in connection inefewith, the Gustamer:aarees, at thin request of the Company or any assigner, to execute and deliver, to the Went permitted -by applicable law. _any and all .consents, acknowledgments. following the Custornar's written mr-currence to such assignment. Payment. Monthly payments snail be made to the Company or .ahemate financing entity, based solely upon energy savings, for the term of this agreernent Such paymearts shat not e=eeo7 the tclal enemy.and gpperatona`= savings realized uncle= this program to, LNS agreement. Reports and Mclitturing. Tine Comparmy shall putide lite Cusicarier v4th. a: measure mew and ver�-cation plan that ret -3= one energy utiltzailan by cine axrpants of the tafttet covered by die a`,fr?" m. at. The plan shat irdrade but . not f r-- In ifs to- re --war, Written rspats to measure arta uarffy trio savings pravidedzy tie Company tc the 'Customer, and any :and all prpp:1vd sawn s. Titase savings guarantees stag tie rn=lo;,edl at leeasi quare y .by the Company and the ✓ustomar, and re united in n i erg on an annuat basis; cammarining one year irGfi he da=s of csrnp::tion cit 111si31130n. Agreement Responsibility. The Company snalll be recut -ed :0 ass lle ZMI resoximik6ty for at; servtes[ff''�*.a"'.. in this rt_tea^seit and shed be. oroisidc 2d the pry mntra-= =I rise stge pain' a! cama'„ with reuam to.gT Mitravaa€ rriatte,s fin;2udinS w=anes (exciudmp extended wa ar,�), maintenance zovered under an'FRI. Mainteriance Aore3rnen1. and guarantee monitoring). 3,05 Construction and Implementation Services Subject to the provisions of Section 3.02, the Company may emp°:oy one or more Implementation Contractors in the p=r C man e of 5ersr�s under Schedule E. which Inipiernantation Conmactors s`ait.be the sole respresthibly of -69 Company and shalt have no $ice.canis'; rdtefrarshi_ vitro tie C st3m?r to ac;ardarzr.- win SchediiteE, :fne .x>lparty .and its tmpiernarstaacn Carttra„-toors matt (a) pro=e,:raristruci <and Insta?t all materials. ecluipmeril .and systems squired to implement each .EC© in accordance with the Design Documents, () provide and pay for.all labor and support. 5e^vices necessary to perform such worx, (c) .supply to the Customer copies of any operation and maintenance manuals available frog (tie r:nrnufachirers, vendors and .WpL.,s of equi-p,Or ss'--rTis cc mtin&,r*p a part o'_. any-xts---�ied EM, (d� pmide or,s t^ fry w tp a teasatati a mainer .of the Gas{u rig's r �^n op€;aing person i5,, r tr2ning is reasonably tegt<ted:or netmsaty t`er She proper-cpa;atio't and maintenanoe, of.any cimpteX equipment or systerm ransprismu a :'pati of .any installed ECC, and . (e) arrange for :the .itnal inspection and cnazh-outof each instalked ECC. Its connection with training nroui0ed by the Compwiy, the Customer shall snake available training areas at :the Custorners Service `Wcalions). training aids and Guslomer's operauno.personnel during norm! b isia sc hours, as set farfh in ((j Company WE 'hotj na„z,i.ss, defend arc lnde'rrni*y Inte .=tOmm vom 'an), cta�ms. zli„p} or demands tmpiementatim Cartt;;a:Iw , U mr.-campi-imn of amszu-ion and instatialzri, the Parties stall conduct a fins' inspeo on of each insia9ledEvO and f the wort, is found lobe cormpiele; the Gustome.• ON execute and return to the Company' a Schedule F (Gertificate of Final Acceptance) of 'the Supplemental Agreement, within twenty, (26) days folloviiing receipt by the Customer of a notice at substantfal completion from the Company, if, upon inspection, the work is not founu to be suhstarrtally Complete, or if any male.iai.de€eMt Or d_pci�,:�r exists, them the cut orlt-' shail so nottly the Com rany. as #anti in Schedule E zad ttie Company shall pima any nom. -nary Cure�bans prim to the ,uslomer exerting :and xetuming a St_duls F. The date upon which tete Cus€omer rssaes, or is Scl Mule E to Issue, a a.heduli- F YAM respect to an EI -0 shat be re€srred to nemlr: as the 'Final Acceptance Date" ler such EC.C. (g) TM Company shall be restonsibte tai commfia%-e :Vfit,M a; p%abte, ca9a, stahlies. and pe -minting requirement. AI engjr�---nng, design, iastaltatim, and constrictor wat. shall be done .by contractors .properly licensed. .certiied, and bonded to perform such vrark in the State of Florida. .3.06 Energy Savings Guarantee, Company has formulated and quaranteed the level of energy savmgs.whwh.W be actliieved as;a resw; ci The installation and ope,'abon of the Equipment and provi_sn of ata es. p, for it ins Apaem.--nt The '=nerg) Sc -i ;s Gua: amW is sat f3hn, in aa"v-ate Y arta in azc*,dare wilfti:Ex bit E entitled'Standards of. Canrfort Th., erergy saran;s gaaaar.-e Shall p m0e sufficient cast. tmv to: he Customer to realize :a minimums 100 level of.savinos. Any savings realized yr icA exsaeds the guaranteed armunt shall t7e and remain the:sole property, of the Gustomer. 3.07 hers. The fees to be pad by the Customier for the Construction Phase of'this Agree iant.shall. be calcutatad as.foltow>: Tata: Prolect Cost a--. Scriedums G and E tss FPL Rebates i. r4uaie assigned o Company a5 3 usmt by FF! i equal Cost of Froto ceworree; egress; rrymentswill be made -to Company. per Progress ?payment ;r*hrduie Of `,folies prnvided ir, $:,hedule k. 3.0E Fees .and ,Saving's Actual energy .savings achieved by Cemparty:shal be sufficient to cover.the amount guaranteed, as adiusted bythe-base-eline witrt respect to Company's seMzes. am %fling information Procedure Mlngsharic=rorityater uY SfaC 4' ill.'. vft Cate as tti3� trrrr; id S�fGieu T` 78 rte :"�iS Z`f this Aereement. Payments one tc ,company slut be caicuiated, sac TmA, 0 ourtrig fne interim ?ariod mAe t0ltsvang manner 3.09.1 Company shall submit detailed invoices Ie. the Guslomer,-sn care of the Contract Administrate The Customer shall be afforded (30) days to review, comment, approve pavrmni of same,:a..rd pay the Company. 3.10 Fees for Maintenance. qupm&n' slerrize as -Yd rmamterlaece pericunm by thin Company and referenced! in s ttta C iT, be pa athe it a tlas-` V& to snanz;a' wast, Flow Anal9sis Aftnaa" Sen e Cost 0ai: ren The amour; dare viJ: b he antrum slat.-.° in year 1, and term escalated by them Cinsumer rem tirdex.161h rn e . .3.11 Annual Review and Reconciliation. Nth,r$vdays of the end of each tweive•moriN period, Company no Customer snalt reviewthe guaranteed and actual energy sovings and any payments made by Customer, and shall delermine the annual net Savings and/or payment figures, in Me event the: actual savings are -less than the guaranteed savings. the Company will pay lite shorttati to : the Customer, in .accordance wish F.S. 48aI45, Company shall snake pagwnts of any shorttal€s to Customer vuthm 45 days after the sarTcs S"wiee . is re—zon„zilad-- Lai: onan standard vendor waaanves from the suppLer or imp`:emLerimm tComG's., zr fcr the Derz& 0 the Com.7is t,.• and line, r.+Lsiom aT, and ymere Pmci:Lat Snan -attempt to pTSM waanarnty perixis of longer 'man brie iii yeas turn t*e substantial ar^.ep�,ce date, If such extende^ varran y periods do not increase the Company's procurement costs. The Customer shall be entitled to Ihs oenefil of any vendor or Implementation. Contractor v,arranlias obtained which are better or of longer duration than those provided by the Company hereunder_ If any such warrwhes are for a period longer than the C ompays warranties, they shall be transferred to the Customer at .T,-- .end of the ompany`s warranty psrtnd tmreundar, a7d :lam Ccmpany shelf tner-'af er a: at (he Custame's request and expense, as i=1 toMe customer with s .ch vendors or imD errrentabr Convacto:s in prose a3ing a ,y wamantyclarms. 4.o6 Company Principally Responsible. Motwithstancing Sac!ion -4.04, :the Company shall have .primary fiabRiNy with tespe-ci to all Company warranties set brth in Section 401. including warari _culla respect to materials arid equipment, wit l er.or net any event or defect is also coverer by a v_"dor or frrptxrtwnIa.i rr Corr.-actpr_warranly.arsd the Dustmer need doh: to Lie Ocr,;ra_:y for come:bv2,a:aiar ptrsua x IG Sectior: 4.03: nal the Coronary sna° re:sve the Penahlcfanyvendoro Imptemeria6art rtacfWrsv r „lase -4,07 Warranty Exclusions. The Iiabliities and oblicalions of the Company under this Arklo d .do not extend to any repairs. adjustments, alterations, replacements or maintenance which may be regvired as a result of weer.and tear in the opembon.or use of an installed ECD. or as a resulf.of Me, Customaes failure to opwate or ma"3ts n ari:.CO in 0=3 31 k0§! the opemiigg manuals cr.rRt;u�fws aapple'd by the Ccmpen,. or in mance y -lith the mnm prorded by ;rte C,znrzrmny to customers peaannef. 4,09 No lmolied Warranties. Exceptas expresslyprovided in this .arficte 4, the company makes no warranties or quaranlees, express or implied, concerning the services or anyECO, and the company disclaims - warranty implied try fme, akU- uding irapti.;d vilnuanGws of merunahtabilily or i3tress for.a.particular aucpose.and imphad warraaeas of custcni or usage. The corr=pary makes no warrantes or cuaantees of ,my nature vVhasoerer corissmi"s the a tuaf reduction in the carstern ft energy usage as a. result o! the ias'Wttafion and ogeratson Df any. W. and the i%is amai ack mM9dges and ,agrees thal any estimated savincs, .est -mated 6aad rsductcans or ol.ner s mlar pra}e=ors suppfind or made a;' me camps my shat be Ipr infa nall.M1 a==pses only and snail not vrFriShtpt a war, anty o� aua.anies by the compaitylei the a:tua: savin;s .or ioad reduction, if any, wruch may :a experienced by the cuEiomer.. ARTICLE a' STANDARDS OF COMCORT 5,01 Company snail maintain the Equipment in.a manner which will pmvlde ane standards of heat>rg, ccotiny, hot vomer, and I gh! as desain-4 in -Exhiot S. ARTICLE 6 LIMITATION OF THE COMpmrs LIABILITY 6.01 No Operating er Mafntananca Rnspons36itity.:Except as othervise specificatiy.provided it Article -4, the Company shall have ;to responsibility or :liability with respect .to any Ewa after the substantial completion date thereof, and ±lie Customer shall be sotefy responsible for the operation. maintenance and utilization of each ECO attersuai date. YyitttauE lion Eng:the gererality otthe:iareaang, no payment. cNizia mn of the Customer hereunder, or, uAw any Supplemental Agteeman4-obi S n ee, thbij be afrected "try hie am&.verfommai.^4eolany.ECONlovitniptie'rrnt33 AcormanmDaiE, and M Serrce Cnairae to be paid by the Customer pursuar„ to schPduls G ot.ariy, .Supplemental Agreement shall.notbe measured or determined in any manner by the achraia count of energy savings or load reduction resulting from Vie implementation or operation of any.E CQ. .6,02 Consequential. Damages, to no event Shalt the ;Company, emobirees orvii iiia;es, V zny troplerneruation Cce air or i.s egpluyees or.af2mes, be I NL.; ale die CU=, — ler for sPE_M�J, indirect,eXemyptary_ ptrmidva a consequentiai damapas of any nature wftalsoeve: connecter vain o,* resulting from the Senfoes or from performance or non•x>erformance o`. this Agreement .or any Supplemental Agreement or Schedule, including damages or claims in -the nature of Post -revenue -income or profits, toss of use, or cost of apitai, irrespective of whether such damages are reasonably foreseeable and.inespeclive or whether such claims .are based upor negligence, strict Iiabiltty, conta:4, operation of law or lather ti iso 6.03 Intent Exrez! iii -cases 0` wfi`•fti ma=dun, .the i -a un s intend that tee wavers and.das aimers.of kabitfty. releases from, 43bNty, tml atiors and appo"t ooihments of ka idly, and er jutiva reateoy previsions expressed thr-augitaut Uns Agreement and it any Su pleine*:tai _kMearrr•.nt cr Scrianule shad apply even in In-- ellen! of toe fa. It r-Sroe (in v,na* w rn pad), strove -'OVOy o- #reach of Mn -vast of the person releasor or venose tactility is -salver, disdained, horded.. apportioned or Fixed by strpl temedy provision, and shall extend to such person's affiliates and to its and their par ne:s, shareholders, directors, offcers, employees, tontraators and agents. 'The Fatties also intend and agree that such praMians shall cominue in fulldorce and effect nah+riff standing the termination, .suspension, cance:laron or rescisssicn of this Acreement'sny.Supplemernat Ag eeen*ent..S:hedufe .or :any other agreement entero into pursuant hereto. No ormer: direct -w. emritoyee.-apit or better nlividua! represeniatiiis cf all4er patty sl"at to petsonafiy r n"Ne:tor art; hab aisM Live, AAgreemat of a 3y SupptGmmial A;Mmentc. S:�hadula. 6.04 Remedies. Mere reme=dies are exproWy afforded by itis Agreement or any Supplemental r+.greerneni o: Schedule with respect to the. Semces.provtded by the Company, such remedies .are intended by the partias to be Die -sole and exrsusive remedies of the Customer for the award of damages front tit.' Company ansinru Gut o. or :in connection Van the ervioes or,RisAgreement The. parties resefvo,any remedy otherwisse av,&Jlable ,.at lav; or it ecuilly, includ ng, withoat irmfmlion, the abi.Dy :o ertlbmme the tarms of the agreement suctt asadefc pvttrranw= v z seek reiolthation or t assmn of �iuis agreement,. as u2i?sni� and as ahoy ea by taus of trip a?LI•m of Flo.'tda ARTICLE 7 ACCESS AND INFORMATION 7.01 Accepsto Service Locations. Upon Pit; request of in - Company. the Customer -shall provide the Company and its Implementation Contractor with reasonable access to the Service Locatan(s) to enable the C„nnpany to pa forin am Services hereunder and under.arty Supptemental Agreement and to verify and corif rm the et—_rallorl o` any imialied.ECO the F^al A=--man-me Gard 'Etta ;ortpany also shall hale a. ass to tie Se: ric- ib: �3nn(s) dune" the peri -d speMfed in Ar—:xL- 4 for purposes of .perfarm.m its o1N�aroos thereamder. iiia Cuvzne shall prL`trtde the Coimpanyr villi, storage and .laynlm n areas at 1Re Seviw Locatiorifs), as appfgaJte..during.,the instalWon of ECDs avid shall make avahable any consiruaOrt povrer .and other utilities required by The Company and its implementation Contractors to podairr the Services. The Company and Its implementation Contradors shalt observe all of the Customers safely and saGurty procedures at the Servo-ce Location(s), to the extant trade known to tf:e Company; and shall not unreasonably chart) oc rntern:a: bte Customers cperauu.s at Sam focahon(s1. 7.1D2 informatton. Tne Customer sbaf, promptly comply wits a1 resGnabiareguesls by the vpmpan)' ler mfti.4rtafb-,, eoncemind Semce to afion(s), as required by the ;,ompany to, perform the Sengces, and information to enable the Company to determine the actual energy savings and load reduction a:hieved at -the Sarvrce Location(s) as a result of SC© implementation. The.Cuslomer also shah provide the Company with any information and other assistance reasonably required to verify to the "rtanda Public Service Commission (tae `Commission") the demand.and energy savings achieved and lite related costs thereof, The-Cumorre?r agrees !hal the Company . may ft:128e SL:h inforrnat of obtained bi trie Ca apany v provided by the C*lomet pursuast to this A reerrere o; am! Supplemental Agreemsrt to the to any other v a.lGadiyhavingktrfsdidort. ARTICLE DDCUMEFITSAND DAT A 8.01 .Ownarsjilp Rights. Any Audit Repo.. Feasibility Study, Desitin Document a., other repor' or.docurneni fumished or to be fumishet by the Company pursuanl to this Aareement or any Suppfenental Agreement shall become the property of ftte Customer, upon: payment, and may be used by the Ctsstomer tot the operahorr, maintenance, repair or altea6an of any = Ci inmilee by the"Company. h at>vzihstand ag the forego .;: to Gascma sha t rtGt .amu' -: any rights at itlterest ** respect to the r. arnioany8 a AS trnpt-rnentatan Coaatra o s'.:pr prieiary t utolo y, uucessees tri computer soitvrate that maybe asaim eannecuon with Ins Servtces crthe suppy.bfegvi mentandmai.tfelshereundar. 8.02 Use of.Documents Atter T ormination. If any Supplemantal :agreement or.Smedule is terminated, in whole or m,part, toy the Customer prior io completion of the instaitalion of arty ECC, or the Customer. chooses not to proceed wilYt the implementation of an ECO as set forth herein, then the Customer.shall be entitled to use for .3's o.',m purpoves any Audit Report, "reeshhty Study: Design CA7"JY ant GFG er fLYU7r1enL'I'UrRlshe7 t?}' Cie Company herernder upon pe-yment or the CtiOrnpa ly, AFMGLE 9 INSURANCE 9.01 tnsuranceto be Maintained bv.the Comoany. Atanytime trial the Company is foo1p ming Services under Deis Agreement or tinder any Supplemental Agreement at any Customer SeMD.- Location, the Company :shall keep Land maintain, with, .insurers of recognized responsibility, the following insurance, lvhidt shall include fns minimum coverages and limi s set forth below. 9.01.1 V;orker'. dernoensa'ion Insurance cDvmng all of ere Cornpany's emp',oyees as recuired by law, vrn an amount not ims lnat: 55G0.00�', per occurrence. 9.01-2 Commermpi ueneret U?.�-;y rnrurarv_�e, thotuSing cuataclua£ Ladtiity, premises arc+ opesatcns, orDajriWTr prope?t o7T a7pe, rtodu.-Wicampieled cperalians, it devenden! contra :o;. and personal iryury covin.' es, Oth a imit or r„t less t=ra S 0000,00v f eadi --mo lei srgdle IIrr1, .arced 9.0163 Comtxehensive Aulomabile Liability Insurance in udcrg ravemge for fiabildy ansirg out of the use of orated, non owned, teased or hired.aummobiles, for both.bodiiy irrjury and property carnage in a tardarrce alit state .legal requirements, having Tip! less "that VU00, 0 Cilmbined single limit per o:Nrrenwe. 9:01-a Professional Liability - inmimum of S9.Gi30,000 Combined Single Lim! per . claim„ with a S2.0G�7,000 General Aggregate Irmil. insurance poti5es to be tamed under this agreerriert.sliaq not be materially Changed or Cancelled,. witliout.tnrrty (30) days prior written notification to the Customer. 9.02 Policy Requirements. Any insurance carried by the Customer with respect to the Sorvices of the Company shall he deemed to be excess and not contributory insurance, and the Company's insurance to be .provided hereunder shad the primary to ine Customer's coveratle for all purfruses. despite M conflicting provisionsintite.poiicies to the contrary. No policy ma mauled by the Company hereunder shall h= sabjeCt. to anceflaton or redur bon to coverag= or aimvun;, except upon thirty (30) nays prior viritten noitce.fitereof (ter, (f0) days for non-payment of premiums) W. the r-usbmer at its address set 136 it -5--Cton IBX t�- Company shop protide prao' of =Iferage to the Custatn3: kith rs(rw to the t^Sti2rt'�ce req<sirad to be nalnl_kn_- hefeundet.ot any fiact trrra tate crsorrwts requsi, 9.03 lmoiementation CortraCtarinsurance. Tice Cam arty sh3all r suw Ira tzaty rnsurartce of its Impteanetttalion Contra='pe= tn; sw:^ces at a S r' Lozabon as sftail be reasonable aad in accordat:a with industry , L-Ai.,es is relation w t€e work a other items bang prorded by each such Implerneen-alion ConLamor. r nw, the Cusamer's re=cast, the Company shat; pmvide the Customer evidence o4 the sasurmace coverages carriec by any irnptementation Contractor. 9.03 Sefldnsurance 'rhe Can, oany reservas ate nor!. to self. Fnsure an}' o:>wgaeons :,; Ar;;r~e. 9. ARTICLE 10INDEMINIfFICATION 10.01 Tt>a ConVarly shat idem i; and hold harmless One Customer and.its goers, .e.m0 yws,_a,..rus aid insttar mniaiids fmm any and a -I babIty, tosses or damages, inGLroaig-auomeys' fees and costs of de, nse, whiGrthe Custcmez wits offsars, employ—_s. aaenls c--., instrurnentai;2ic may incur ase resutu of Claaim-, damands. sults, causes of actions .or proceedings -of any kind or natum adsiag oul of, relating to a resulting from the-pen*ormanca of this Agreement by the Company or:fis tampioyess, agents, servans. partners principals orsum runLacturs, except and solely to the extent such injury. death, Or damage is not caused by the Customer. Comp any shall pay all Claims and losses in connector, therewith and.shall investigate and defend all claims, suits or actions of any kind or nature in the:name of the Customer. where applicable, including appellate proceedings, and shall pay all costs, judgments, and attomey's fees which may issue thereon. Company expressly understands and agrees that arty insurance protection. required by this Agreement or otherwise provided by Company shall A no way limit the responsibility to indemnify, keep and save harmless and defend tine Customer or its :officers, employees, apents and instrumentalities as herein provided_ The Customer does hereby egree to indemnify and hold harmless the.Company -to tic exteril and within the limitations of Seclion 75828 Florida Statute, subject to the provisions of that -Statute whereby the Customer shall not -tie heti liable to.pay a oers„"nal trilwy.or property damage rdaim or judgmen£:by any one pierson which exceeds the sum of S#&0;40C, or any Gaon or jtldgments,or portions thereof, wtdcn, when lemled vrth al other occurrence, ex~eed; dtesurn of S20 ,0M from any and all personal injury or propertydamage cfares,.'iiaDqities, lasses and.aayses of abort which may.anse sifaiy as .a result of the negligence of he Customer, however, nothing I apir, shall be deemed to in:: maty the.Comp ny from arry Gabiiity er claim arising out of Ine Pegigant pettsmance or ia€1ttre of tencianarr- of the Comparty or a.y unretate third p3 y 10.02 Survio-af. Tltf obfgattosts of Inc rs;e live parties urw—i itis i;' r* 10 SW', sure ate comm a ion a' the rigr tezl x pf any lfgevma � <Uatt rYrrutN� ja IG ism GL4 C-1 as2--cZil m Gssa= U? avlmaeugq�) Aue Pplcq*-� -atapqLps to luawaalk iquawaf-d&IS be mIx—�-k sitaqui: q,%VWJCl-'*d 10 0111*--tlos 'Ism 3JMdWO:! Q41 5PRUIR 4-SAWPE .(37mwT airg of 'zr4e ic S-agie"va�ld-al sil aq ;(Y allit,'21 1U2 wcq ljrm Avi C -SLE ;ZLZE* y u"]c t4 apipair-S.;O luawT-c6d 42,.9" au. d, -,S A- sk4 Ol tL -r.;rd AtxdL,a� : aq Xq pap�cjd aq CI Spepieuj ,a pmey-ad aq ci SUE 'uraq Svqq0j.-I3 x -cl, wvmac. a4t 41 Sc5uelz ;S-arrmal cl lama aq .aeOA -w4s !V.UCjM-3 P -14-t: ffr� S-:zCNVHO VII, -Amif-m-d dAjcpuoval se UMS Si I J0 awma" jg4s PUB gDaL'u, lc --ad juawd, Lj.-,4,w sspejsqa aqj ;At) *j q zgeucreGJ juMxo V. 01 `:oneaQua ;legs Juana stn: fejt' aoJod a tq pajoal;a os �jJed ay± jswd,AjqeucsPaj se u.-cs; se: 6unuu ui pawj4um Go Ilaps az_4ou 4mS* '10aiaqj, uoqejn-P pamdxa all. PUB- a3umqJad 801Acm; p JO 644UZAeid swoulsvinolp Gq ;0 44%� ;eq,,c Gin ol a:qvu apocid Ammpswun hays—)(ted LPTIS ;USA:l alnGluj% 83JO;I 9 (q UCjU6fjQ0 qn1is Aug 10, aoueuucp,;d. ;41 ur pRf,;31@p .o pzjuemd s-, Aliud a g einefew g3jol. g) Alied pajnege aQl )a aQuadj Idau to line; aq; jo linsai e lou pup jr, januo-, ajqeucseaj aq puaAeq s! qoiqm 'ainri io 6unsjxv-3sr.e3 Aus 4q paielip to poluamd sl uo!lp6qqo dons ALE jo sounwqi1aa ;eql juapa a4l m 'panrw Apesile SIUIIV,Ue 01 rCadSal ql;M SIUFWXP-J T,i210 C4 '.-;UORE!flqqO idg= 'ema4S jo ImaeAV gtrawatclnS due j2pun jo =Luam6-V SILO lapunsuopedilcIo p to aoueuuopad eq ur Ilneilp ut aq al lieqs ia#.ucjsnj aq.xlu Auudwo-j aq4 .3 W 3 qil8N UL 28n-=rlvyq M Gsn pue same' he m p#;; . . ins wel ;Iqemo Aq: paimbai .�Aqep Oivaiwoo �qj 0! mcd SOtiS a14 Lo PeSduxi saxes ase OLM VaIRS Aueied JIS45 XueduM Am IL IMCSS, rj^ aug -1,ed L . -us S aul. rax—UL -wne-,4uU,- 2,0 --=QU ugumv tmd 3SEO rxwx ie gmmld Imm T=S l3ftLZ44 isrli S14 Ac PeASS; aftlaA= nae rm ;0 iG-. e SMAOXI C3 'S;fL JaU , CH, ',tmuaamv STLP 1,0 =m C-tg jnct;�ncuq PUP- samc 55-minsul jauicisno n -v, �io'vmmAuc7, uc-qmu;wajdu;,I sil'Aueduxo aW jo PE C-1 ZIMR4.,o surr-B aul Jo linsal e Sg 6MUL, saved jai jo 10 qqelj ;ue s-.--mqwmua '%samp kpnaas 's;:63ew 'slump 'sueq !m ;s Mlar PUB GR4 L107"!, Ucr-m- ul Uvql las --a "amsr,- aul U-1 Isar' PUB of a ssgd tAs T,mxdwim rue %CO3 wns of al:; jeq. swvmm Xurduic0 au,I Ifza wqmuaarAwj %, mXLmd=:; at4; Sa patpnsui jo 7;qswq irjM qTuaLadusm ;zr-a sC.O= Ile q am rwt memm hedwl ML -.-l-PL-j0-)4Uzw!m ETZI; iaaii�'e ,Law 0, _artw d,;aueis msucquj:dc;dda pie 518E= le ~arut at, . z� q :G'Ans 'su3!IfuM6d-aV la pasnm kpzmr Aq paumaj ucqv,,u=-*4wt ue to 4wndwo-, aLzi S4 Pasnp.1 xfr�ajlv SI z50wTP,.T 9m, 4-m S58m, uolln-oq acvdag e x Vaftuxo x ;Iaxculsev -,Sol LqQs IM'C-4i "ilaumvM x 030 'We to juawwo=1 x liedzi ZL3 cj "Wecwoo Gig bed puL, Iqlutugui lla4s jawqsi- aq; pe, jou.x paileism �aqj@WA lucqeoM aolmaS u it, ML--cl C),3Liu to wed SUE! o Ile 01.1^ 1e:xaq lays HS 0111CII511C a4l '9UIO60lV..Gq 561URV P 5UPMj0N -00-=at4 q ;,max lawals-no aul olSsed 112ix 'loa,jaw reed e 1.11!sudwoo slepimetu pue juawdipbe IIx du!'Papq Pollm'sul 4 -en al 0119 Wl-k-LI-0 -4911 —Sed O -Z ,�-Jx—vl dNV KNVOSM dEPTO-L-Sn-O"T'Mill ia 2Ul:i0a5V9S'Vd ZL :;-l0LLaV I 'I., " jo mel alqvicce Rip. ajejm% IOU gu4s'lic"A P Ual Emu -ris 1! 4�0 Uaw, PUB c.Crw'm 'I luca �, L:aaq seu ucj!p= tpn& ;c puAcLuaj Ir.aq aAEq elTaw-jew irons uau.Pi 'jawqsno ot1j.1c uqqoo4p uajjPoaqj uadr; 4uo Aakwoo qqJ lqpgumSl an pip: Same pspu4a: Gig ul mq1pum La _ gyajeu; - 4ns i' F4 LItumsp ;-aW4_aJ -ft.q;MwT aA-jq PUB Afalwatawi, =Ctmo at q 'al'sw Uvs ljoclal ams Atleculco;auj 'Uccrp mmui worle-484 tpns , PLIM SnOpenu �o srm ke to OMYR 'mumaq fun-dwoomA M 531<'Rt? nvm , o - mmm au;6-,unp :C-Qvn 4 47mi'mna4 Saquas ala to rvuv=;j.aa m Swage Lp.--'A u=.Wirf xwx- e to S7=-r"--tj Sue P ucp= x; iial Smalvil S"Mmuzeu.4me lesr dv p ;xT v.o im -ucle4- jjm2p an cl :-- :qum am nmrw7'XIUS Jaws sang ;lL w, Sl*lIaRllMS%l0G8vzvm �VS-Mllzliv uc-neutwai qons ci .oild luisj2e (Ncq. ,o staur, Am: CI Ilodsoj!4m jUmuGwb%f 1wwwi�IddiiS time required io• the Company's performance: or otaermse affect any provision of this Agreement or any Supplemental Agreement or Schedule, an equitable adjustment shall be made to the Companys compensation and any other.provision of this Agreement or of any Supp emental Agreement or Schedule which.is thereby affeaed, by mutual agreement of the Parties. The Company shall not tr, obligated to proceed with or panorm any Chance requested by the Customer hereunder until the Parties have agreed in writing upon any sudr adjustments resulting from the Chance, except to the extent a Chance specifically results in an amandmsni m adjustment to one or more provisions of this Agreement or of any Suppiernental Agreement or Schedule, alt provisions hereof and thereof shall appiy to at Changes, and no Change shall be implied as a result of any other Change. ARTICLE 15 TERMINATION AND DEFAULT 15.01 Termination for Convenience Either Party ma;r terminale this Agreement or any Supplemental Agreement, in its sole discretion, at any time, without iurfher liability, upon ten .(10) days prior w1rhen notice to the other Party;rop vided. however: that suit termination shall not apply with respect to any Services or work of the Company previously ordered by the Customer under a Supplemental Agreement Schedule entered into by the Parties on or prfor.to Ing termination date. With respect.to any such .previously ordered Services or work. Including any previously implemented ECS .or WCC under implementation, this Agreement and the applicable Supplemental Agreement and Schedules entered into thereunder, shall remain in lull force and effect in accordance .with.theirtems..unless the Partes specifically agree in writing to the contrary. 15.02 Termination for Cause 15.02.1 Termination by Customer for.Companv Default. The Customer shall have the right to terminate this Agreement and any Supplemental Agreement for cause if (a) any to cceeding Ls, Instituted against the Company seeking to adjudicate the Company as bankrupt or insolvent, or if the Company makes a general assignment for the benefit of fts creditors, or if? receiver is appointed on account of the insolvency of the Company. or if the Company files a petition seeking to take.advanlage of any other lave relating to bankruptcy, fnsaivency, reorganization, windmc up or composition or reeWstm-en,!bf debts and, n the case of any such proceeding instituted against the Company (but nol by the Company) su&. Proceeding is not dismissed within sixty (60) days of .such filing, or (b) the Company subslantialiy fails to perform its ottiigations.hereunder 0..undaa any Supplemental Agreement: Providee, in the case of clause (b), tha': the Customer first has given the Company fifteen, (15) days written notice of default of any paymentotn5gation or thirty (30) days written notice of any other default, and the Company has failed to cure the default (art if the non-payment deiaul cannot be cured within thirty (30) days, the Company has not commenced the cure within that period and diligently proceeds therewilh). In the case DI such a termination by the Customer, to the extent that the reasonable and necessary costs of completing any Services previously ordered by the Customer hereunder T. under any Supplemsnia Agreement or Schedule, including compensation for obtaining, a replacement contractor or ice obtaining additional professional services required as a consequence of .the Companys breach, exceed those .costs which would have been payable to the Company but for the Company's breach, the Company shall pay the difference to the Customer, Tits Company, in tum, shall be entitled to be paidan amount (to the extent not already pad) equal to the sum of al -of its reasonable costs incurred in performing the Services up to the terminabon date, including all costs incurred with respect to any Implementation Coniractors:rop vided that the Company makes available to the Customer at of the woof; product, equipment and materials produced or obtained by the Company in performing. such -Services. Notwilhstanding the foregoing aid notwithstanding any other provisions set forth herein or in any Suppiemantal Agreement or Schedule to the contrary, such a termination. by the Custorner shall not affect.or diminish in any way any liability already incurred by the Cusiomer pursuant to any Schedule G (Payment Agreement). already entered into by the Cuslomer prior to the termination date, and each such .Schedule G shall remain in full force and effect, 15.02-2 Termination by the Company for Customer Defauh. The Company sha3l have the right to terminate this Agreernent and any 5upp.emental Agreement iar cause ff raj the Customer makes a general assignment for the bene» t of its creditors, or if a receiver is appointed on account of the insolvency of the -Customer, or if the Cusiomer files a petition seeking to take advanlage .of any .other .law relating to barik[Ltcy, insolvency, recroanfzatmi winding up or composition of or readjustment of 4ebts and, in the case of any such proceeding instituted against the Cusiomei (but not by the Customer) such proceeding is not dismissed vrlthin sixty (o?) days of such filing, or (h) of the Customer substantially tails to .fimname• .ils,.� Fr�p.rcJ• 11 - pesfonn its obligations nereur&r or under any Sunpl>r- ental Aoreement, including any payment obiigatxn: pro in the case of clause (o), that the Corripaly fust has given fifteen (15) days wittier,- ricii-m of defauR of any payrri-Am o[f�gaha or trxrty (M) t5ays wrilie not a of arty ober cfetault, arse the Customer has Wed to gx:re tete gidfatdt (O.', if the naa,payr=l.detest car=W be Cured v i ori Orly (30) cage. nas not canrten-d the.curte vif irm M al M-bDJ a f3; s3tij'.p: "�"� s 1hete 61hi, to the sure of:sum a f aai;an by''kte Ccmpany. the Com art; sial; erzwlieed; m, is so e r.a mody, to tie paid anamDurt,, e.;ua` to the stir„ of (11 an ammiats dw me poyaw., aaa not area -Y ,pax'! untie; my—Suppiernenia Agreerttertl o; Schedule for Benzines. perforrnad by the .Company,ptimr to the termination date, (4t an :pmurit egwg. to the sum of a! of -the Coinpaays reamnable :costs and expenses incurred.in perfoartir:a Services up w tie. termination date; to the extent the Company's compensalitsi fc: such .Services is not tncuded in the amauris .sm forth in .clause fill of the ioreg,mg. anti (f l all of the Company's r685on0e *csts and expenses of t.=mmrialiD% including cancel(ailan charges and demobilization aosts.assnssed against the :Company by its Implementation Contra ices. htotvvithstanding the foregoing and notwithstanding amy other provisions set forth herein or in any Supplemental Agreemenf.or Schedule -to the contrary, such a taftina€idn by the Company shall not in itself _affect of diminish in :any -way any !lability already incurred by the Customer pursuant to any Schedule..G (Payment Agreement }.already.entared into by Iha-Customer pforto the termination date, and eesh such Scht-Jule G steal; remain in full force and efie;:t.. 15.02.3 Pa men! Alt amount: aayabte by elther Party pursuant to this: �efmr,- 15X-3 shall be due wilnin trurzy 130) days following the sUbmissica by the other Pany of an invoix ther-OM, which iucxe stall inoude er, item• azatanof.costs wzth rasp-- to any amounts measured On tyre.oasis-o' se*nb r'sable costs., cacti reimbur =e oasis also steal be subject to audit by he other Party, al the atim Pis expense upon rea=r,3!i ro admm— notrtie;. c awded ttial suchax.44 09, fie Mrnp!eW vtC nes xty&(60) days bamiing the sub nss-or o; t"ta.invoiw. Arrou iz, no p3k' by exhef Party to Vvv olne, when due hereunder s.140 .bee' t,tatesl, fro;'n the date Myrnont was due to and iaouda he dale-ci p;ry.,wni al a rate ee;ral to tree tesset o` On, gent (`5x%5'' p3 m"'.tth, its tr'i'o Ma"Um, fal–e pYe"m"Ited, byapp5c etaw(IMe'DelayedPaymentRate; ARTICLE 16 DISP[Mr-S .in.o 1;, 16.01 Resolution by Arbitration. Any controversy, dwute or claim between the Partes arts ng out of or relating to this Agreement, or any Supplemental Agreement or &hndule, or the breach thereof, which the Patiirs are uncle .to resolve by consultation and negotiation shah be suornived:to arbi.aix avid snaill be.seet-e., by amivatonin accci adance wilm rie. tammera2l Arhlrirabon Rates (the `Rules`) of tie Am--! n „ rbizatiDr Association ., AAA7 °:lei in eflecd and the provisions of this Anile. has 's; at aw wF serfs Cs resolve any coritroversy,.&spute w ciaim be_�Aen In Pxtees eruct tealinstitiles . >y either Part}, exY, ept vdiere s, h str°i is insf=tut to aha`, or confum, an artimatm zxaad renaered'.pumuant,to try Ante 15, Any Mriucversy, rzsguta of claim subrti;ted �.2-b ttati� shall be:seuf�! by arbi ahxa. in Mort, rasa unless o1hemise agreed by Me Parties. ;^"icrida Law shatll mala y to Remailion by arbitration. Arty.aWM'd entered Pvmuant to:WJ,:b arbitration. Shall be binding on both Parties,and jattgmenl upohthe:aRard randered or received may to entered in z --court of COMOWl Jurisdiction in use Slate of rtsiida..Wxclusive jurisdiction for the entry of judgment on any arbitration award relativa to any controversy ox clairn: betvmen the Parties sh9,l Ge in any coui': of apprcprne subietd matter jwisdi*n LxWe' in -Florida, and tite Parties hereby expressly subjeci.themselves.to the.persanai junsdichon of said court for entry of any such judgment and.for the resolution .of.anydspute, aciton,.or suli:arising in zonnedionwith the entry of simh iudgment. 16.02 Arbitration Proceeding. The controversy, dispute or claire to he.artc !rated shall be raferred.to one (1) arbitrator to be selected by the Parfies by alternately strikinc from a list:of nine (a)zibitraturs provided by the AIA.. All decisions and awards. shall ba made by the arbitrator inwriting, After notice of demand for arbiration.has been filed in.axordance with the Rules, the Parfies.may,.,to Ene exlert permEhed by the Rules, make discovery of any matter retevant to such dispute before the heating. Any costs associated with arbitration under this Article 16, inciuding but not limirted to.attorneys fees and .witness expenses, sial, be paid by the Party ongnlE:ly incurring the cozis.aad the casis.o'the arbitrafc. shall be soared equally by the Parties. 115:03 Pendency of D4soote. T'ne exisb,:ce of any dWtile. co,l vesy or tin ander this Agreement, Or any Suppt=„mental Agreemerrt m Sch_,duke, or the pe_aden,;y of the t zuu+ 'le setbement or resaluii inprocadures sat fa tn, ha -rein s:'ta't'=i Li aid of ria rseives rGi9'12.orjar='"se eltTr--. Pa- i,froth Its ongoin cu5es and obrxa tb s is eunde; or thereunder, ARTICLE 17 ASSIGGNAEf1T 1741 Aareament Binding. This ;iaraem nt aril ea;h Supplarnental-k2neemlen, entered into by the Par`s shall be binjing uwn, and shall mtae.04 - 0, ine P&mes and their Each Party VIM have the rgnt to cnanqt Ine place to wn� notes sumessors vno permlll�z assigns. s"131 iye V neum-Tc cr tY Specify one a-"d&Ona: address t vn= copres of notices may ne SAM,., in eAnar case by S ftar nose 17;02 Penrinktod Assignment. Sat ,r,,. ,,y rray, with nozas m arid =sent of Clumme-, wrttm ccriseent! irrmi, mi ae anteasmiaNy w,"the"t, bot Ott AQ[e_v7_anl is =sidered to be unique in nature to the &Tabes rx the vbmpaay,.delegate its autitaritt its p-2 ormar-ne under !his Agreement, andix ulilrzD mnlrazlo!s' PrMleA .that any ass;qnee(s), basigntclsi, or MntraClon(S' �:Shall honor hi-51erms of this Aqree_men,and shall so bind itself, The__'^Usi0M0..at'its soles clisnirallion..may iquire lhal.sir.h assignees, 4--stio-nees, of Me -like, sign assignment and assumption agreements satisf=toTy CC' Z16:1–UsIomer. 17.0.1 No Third%Porty1toneficiPries except as otherwise expressly provided hezem, naber lhis Agreement nor any Supplemental Agreement or Schedule, no, any term or piomon hereof cr thereof, shall be -=mnrued as being 1011 tft-- benefit of any party nof a signatory hereto-, ARTICLE "18 -143TICBS 1a,01 in Wftq. M na-mm, de,7wza, attars w omev! v.-itten, TO'Dired Or P'_'Mmeo M '—__ i] en-Vtrrsuamto K5 A-p--ee11r; L 0~ any r- shan o-- in vailin, p _c� Imo by the Pany giv .9 s=it nof= and sha' tie MaLed vy UZ Lt,�. gpl Prepaid. wwrereu ar. Is xed a5 Julms lf,r' jh�M' alt"L F?L 70D Universe 31,4. John Beach, FL 234P$ -N20 Fax {5151),691-7305 Tel.; (9�)691,.706/ Attention: General 0mins-i 11 in the curilomn': e'lly of Miami Department of Ca ' Dl:al improvements 44.1 SAN, 2m] Ave" BL" Floor Miami, FLFFLFL.33W Fax1%5.y 4162153 Tel: (316 41&4287 Atmirition-1 Deply Dlrectar 13 Manner M kite oum, InFly. 18-027imina of RecqiM Nomes deSuereby mai. shall d_= denmmeej rEK-eivad tnee (3) vmriang dap atter the oat:-. of rtw picistrna-t- and notices delivered Dy civermphl courier stali De deerneed receives on !tire.delle whey.. 0fi m the.address g tae recrtxent Notices sail by fax shall be afferwe.tne oatetaxed, if a h1or Mrrodayt orthe following wciminz day otherwise,Prp-�d that all taxes snail be MIlTmed try (allovoup TTVD31 Within. 1hree (3) WDAmg days. ARTICLE 19 GENERAL PRaVISIONS 19:e9.Entire Agreement. This Agreement, including the Exhibits and Schedules all=had hereto, sets forIn the full and complete unde.-standfriz of the Pates relating tD, the subject matter hereof as 01 tne E:fie--4c Date, and supersedes any and all neglobaticris, agreements and rep-Ssanlat= made of dated p.=, hereto with rew-_t to the subject mauer of this Agement. Arry actions or senn;'_5 desunbed in this Agfeernwil which were peniarmem-or 1-nPlaimerited by the parh= prior to ule [)Ate shalt: far all prrpusas b- deemed to have t performed UnI.6 this Agro 2t 19.02 Amendments No &.ange; autendmeal or inocffi:atwat of ;h4 Azteernettl v_! any SqmernaatiR4 Aqreemer.�,w S�Padiuta_ tter-rm- sire" be YaLl or bminagn ipw, ft Parues unW szrh chance .2manornen*.or nnicdnavon srtalPe Jr, wrlfiri;'and auh. executed by 39.03 .Stalu'.s,o." the Parties. The Dcrnpany-and its implemei-itation, Contradors shall be independent mntraol= with tesDec! to the Services performed hereunder and.under any Sappiemerital ol'whallne' - such implementation Contracr= are appro%ved by the Customer, and neither the Company nor fts implementation Contractors, nor the employees of Lriner, stial be deemed to be Die employees, representatives or agents of the Customer. Nothing in this Agreement or any Supplemental Agreement or S.-heoule shall he construed as .inconsisnril with the iuregDblc independent contractor status or relationship, or as, croaling at irnplyi;iq any partnership, joint venture, tust or other relationsnip between tide Company and the Custom_-. 19.04 CMomer, The oijroniar hereby represems and w—marits; tz *.P- Compa-ly that (8� the exec_ ulizin and delnoe;y by L14- Customer of this 4--ement and the pe--;onnanice e its obitgationt hervialier, have been duty authc;ized by al': requisrip .actions and pro --add i , are -Cat in' w.nswern vt4h and do no, and w l not Mn;,avene any.0rorssons of me Custmners organizatso^=al aacumeats or any appl Cavi, rule or re ulaan; ttave been aupmved.by ab nw"Ssan .WrrSGns at entbes; and do nor and ism rrol confi ct virJ 0: cruse. any bream cr deiawl under any aaremrrent.m inshurnett to whir^ rthe Customer is a patty Dr by wlti_i it or any of is_ properties is'wano; and ;b; this r;greerttyrrl ties been duly execuned and delivered by the Customer and constitutes the valid and IagaRy Binding naigatan of ;tie Gumma r, enforceable .against are: Customer in acodrdance with its terms, except to the extent that enfar„ eal:01y may, be limited by applicable bankruptcy, :insolvency.. reorganization, moratorium or similar laws and.subject-to general eauita Ae principles. 19.05 Commons. The Company hereby represents and warrants to the Customer that 0) the execulimn and delivery by the Company of this A.-reement.and the periormance of its _obligations hereunder have been duly aulhanzed by all requisge .actions and proceedings by all 'requisite- actions and 0r:iceedings. Bio not acid vd,,' flat contraveneany provislar s. of the Cor„pangs otganizatioriatdocuments pr any appticable lan, rule or re4'dalian, do not any vnllnot reqttre any ccrEsentot an p ^,n it enlity vehica has not already Dew obtained and do not and v,4ti not =*2 ih1M or case any bre "i a, default under any: agreement a, insmarnen: to v;^L-h the Campm. y is a rmly or by %rhic 11.w any al its properties rs boom:i, anti (D) itis Amro -7v: nas Dev cult : martei _ate .Catnrered by the o=wy aid.censtitutes tate valid and t al y emding ou'uoatix of Ute Company,enfo cezM-pgaetst Mr. Compan3r .in accardanm isdth its terms, .ex=at it, the eX�-n+ fiat enforceability may . be limited by applicable- bankrupt y, Insolvency, reorganization, mo-•alonum :or :similar laws and subject to general equitable.prirlmples. 19;08 Drafting Intorsretations and Costs. Preparationand negaliation .of this Agreement has been a joint effort of the Parties and the tesulling document shall not be construed more severely against one of the.Partieslhan against the other. Each 'Parh,sttall be itisponsible for its own cents, including legal fees, incurred in negatialing.and finil—inng this Aare_emtent and any Supptementa; Agraemiintor Schedule 19.07 Captions. The capfians contained in ttiis rgre—_nerr or in any Supplemental Agreement or Schedule aFe for =nvenrnce and reference only and in no way daline, descttee, extend or foal Ina scope or intent df such document gr the intact of a Iy Prc'.1sim =Tabled therein. .rum.ws. 14 19.08 9everabititylDivisible Contracts taY The invaftdi , of one or mor: onrases, semerims, ct zwL Se-j3ns c r'7” nleees contained in tr s Asgieement ar any 5uppiememal A:greemen m .4 r .Sur due s`= all 1131 aiie x the va rxiy ar lee remaaning portio, is tnerert so to v; .as the ma erd purposes a,,' sur'i clowment .can De rtere.=rnhed and ef,eated. tbj Flom w rE to bar. tine Company and the Cus'o, i r may anter -into tine w rare supplements. s2in duras, :or pa•�nt agreements related to the srlpjec,' malier of tisiss Agreement. _ach suchsupptement, schedule, or.pavawnt agreement strait constitute a separale.snd dwisNe.cantract vrhiminthe Company may assign to one or more assignees, in ✓chole or in par•, and each and ev2y such assignee arf the Company Shall be entitled to the benefits znd tights n`:.1he Company under Inn Agreement, and .shall be entitled .yo exercise the rights of the :Company under this Agreement. No assignee shall be responsible' for any obligations of the Company except as expressly ,assumed ill writing by such assignee in accordance vllth the terms and conditions of Section 17.02- t9.Dg Further Assumn es. The Company and the Customer each acre✓ to dc� such other ano further acts and things,. :and to execute and deliver sum additional instruments and documents. as either ?arty may reasonaNy muest from time to lime whetrier'.at Draft, r the exa r, of this Agreement, in tumherani1_ of the "press provisions o`tnisAgreement 12.10'Ap 1table Law, This Aorearwnt and e= SuppLemen at €greament and S.-`ted<d;e trrereat shai'bc 90wremed by, cotsard and eniwoeZ ii a, vdanoe vrlt;1 the dans al Ila .State of Flat6da, of cont of fir;-mAs a1'a. 1e.11'.Counteroarts. lid'rz Apraenianl and .any Supplemental Agreerrient or Schedule may be sigmed in any riumiber of Miriterparts and each counterpan shall represent to piny>emcuted omnia= as.it sisrred aybath Parties. 19.12 No Waiver. The failure of a Party to enforce, insist upDr., or comply vdth any of the terms, conditions or covenants of ties Agreement or any 'Supplemental Agreement or Schedule, or a Party's waiver ofthe same in any instance or instances.shall not be construed as a general vraiver.or:relinquishment.of any. such terms, conditions of covenants; bul the same -shall be and remain at atl times in full force and affect. 19.13 No .Discrimination. Company shall not unla•,wutiy drsaril mats ren Providing Its serve. -s under btrs agresenrant i9.1a ADA Clause in the =arse of prrovidng any wort., tab.-- or serwws funded by the City, Company (or ns ago and rapMematrves, as ap itiicaldM) $hall af: ra:ively comply vrith 4 apptcaaID prop signs o`• the Americans vitt Dzabibm AL( ,C Ti's), .r =did Tim I P, 11 of the ADA teptcling nc-,d;smoi, unptimr e. 931+H„A�gard. basis of disata ty, ann' ra a= re_, c Tamm. yuiaesaes and IN WTINESS y; H_RED the :?arts hereto have exe-_s?er� I'm standmrds as apprhprr3te. AC -1- xaj, 'C mipaiw will M* Aarten?nt by and fiirough tiler dally aut.low represenEsniv a w Amu -_ stew ED _nsure norra:s--mmajon in amta:,rmem of a` in* Epanve. Da'a. di&sb1nd w5am THE COMPANY,. 19.95 OSHA fl a;.lrtiizble, the Company will allay: ;,astomel inspectors, agents or .other representatives to monitor wom'pany (or its agents or representatives) for compliance vAth safety precautions as requireo.by.federai, state.or local Imus, rute5, regulahone, codes and ordinances. dy performing these inspections the Customer, its ie. or representatives.are not assuming any fiability under the iaivs, ruses, regulafions, codes or ordinances. The Company shall lorioa power and tight Company have . shall have no recourse from the .occurrence or non- tts: Aufhonzed Corporate Ofticer occurrence or results of such inspec6cn(s)_ llaon issuance of a notice to :prmmat .or following me effecfwe .date the :tient mnsuiLant shell contact Risk titans; anent ai f305)) 444-170D ,g v-; rife trtsae~iion sar nu lag. . 19.16 OrderofPrecedence. i e; vera:: arnorg f [e p;es^sons o+ thg rse,^, drs shier fez it�rate.Seaif of piecedence it; as fofiovrs- 19.16-1 These terms and -conditions THE.CU=MER: 19.16:2 The.ftrk Order 18:164 The Scone of Seances City of Miam, a 19.16.4 The 'City R=G and ,arty apph:va* BY addenda hs: 1SA6.5 The Company's RmErosal pns;�'[a Tncrm;= Cate Cdah: f ins r ars. appt3v �$9 y, . tL.. L o Dania Carrillo, Admir» stralor Risk hianagementDeparlment �i( r Approved as to Legal Fo ✓ Jorge L Femandez, Cjty }lltornc'y ' � 15 _ EXHIBIT A FORM OF SUPPLEMENT AL AGREEMENT SUPPLEMENTAL AGREEMENT NO. i FOR DEMAND SIDE MANAGEMENT AND ENERGY EFFICIENCY SERVICES WITH FLORIDA POWER AND LIGHT THIS SUPPLEMENTAL AGREEMEM NO, I (this "Supplemental Agreement') is made and entered into as of the 7th dayof December , 2p04 (the 'Effective Data'): by and .between Florida Power and .Light Company (the 'Company) and the City of l4ami (the 'Customer') (the Company and the Customer each being referred to her r, individually as a 'Party' and collectively as the "Parties'), vath reference to the follovang: R=CITAL This supplemental Agreement is entered Into pursuant to that certain Master AoTeement for Demand Side Management :and Energy Efficiency Services dated as of December t .2004.:beivreen the Company and the Customer (tile 'Master Agreement"). Capitalized terms used herein without other definition shah have the meamrps set forth in the Master Agre=ement. N0.1', TH;:fkE;.0 E, in consideration of ine mutual promises and agreements sat iorth herein and in the Master Agreement, the Parties, intending to be legally bound, hereby agree as follows: 1. Designation of Service Location(s) and Audit Reouest This Supplemental Aoreemert shall cover the Customer's Service Location(s) designated in-:hedufe A. .enacted hereto. PursuariND A,icle 1 of the Ntaster Agreement, the Customer has requested the Company to perforin at no charge to the Customet, .and the Company nas agreed to perform, an.ene:gy efficiency audit at suds Service L ocafion(s) .in acoordance with the. provisions o; the t lasteT Agreement and in accordance with the terms and Cmtdifior,.s of Schedule IS (Audio Requeso) attached hereto. 2. Other Services. Upon camp'.eliori of the energy efficiency.audit and submission by tie Company e an Audit rRe^„ort to the Customer, the Customer may elect, in its sale discretion, to request .additional Services from the 16 Company at one or mere of the Service Locations designated in Schedule A to be performed by the Company and paid for by 'the .Customer in amordance with the tohovang Schedules attar ed hereto, each of which shall be entered into sequentially by the Parties in accorcanre vathtne. provisions of the Master Agreement: Schedule C - Agreement for Feasibility Study Sr ,edule D -=ngineering and ?design Order Schedule E• Construction:and lmnlememation Order Schedule F- Certificate of Final A=ptanm Schedule G • Payment Agreement Nohvfthstanding the foregoing, it is expressty.acitnowfedged and agreed by One Patties that pUT517ant tG Section .3.03 of the Master Agresamnt, the, Parties may elect. by mutual wntien agreement to eiirninate and forego Schedule C andiar. chedule D.and, in.lieu thereat, enter directly into a Schedule E. In such case, the Parties shalt be' deemed to have waived the xrovisions.of the omitted Sahedulei(s). as sen forth. in Section 3.03 of the kis sier Agreement. Tema. Subject to the provisions of he Master Agreement, this Supplemeniai Agreement shall remain in full torce.and effect for so longi as any obliga@on of either Party is outstanding and unperformed under any Schedule entered into by the Parties pursuant hereto, except as otherwise provided in the Master Agreement, time termination or expiration of this Supptanental Agreement a:.any Schedule heteD,shall not in and of itself, affaci the oontinuirmg vabdiiy and effectiveness of the boaster ,Agreement. 4. Financial Statements. K the Customer requests, or intends to request, that the. Company furnish financing for any ECO installed by the Company, as .set forth in Sctedute E hereat .and in Section 3.04 of the Master Agreement, the Customer shall provide the Company, on or prior to the Effective Date of this Supplemental Agreement, copies of the Customers audited financial statements for .the past three (3) years and the 0=um.er thereaftR: shall provide he Company with the current audited many ,imardal statermnis of the Customer wiltin -Um- days Wlling tine and of ea-&. fir -al yeat a, " M . e Gust v, fat the torm of tris Supplemental ",mraro- To in-- extent .alt owed.tvl laws of Ote Swe of VjoridE, =ck Lm=d, statements ShNI be vemed try the Company as conf"amml mWmak"m and Stiv., no, tw-• d=- sea LI, Im- Cc trany to .any trrrl party, except as reasoral9y 1--au'red Eo waalge fins -.=-g b'"th't Castow"w- Z. Maister Agreement. This SiTpitemenial Ap-merl', irrd e --.Ch Sch--J& hzoll=�Shej Ml M4-- to ihe I mms and canditom of :line 34ele. A-�Tearnenl, whici, Shall convol ri the even ,-iEnywrifliv or incortss?sterxy. IN ijilrFNESS the- partk hereto nave executed this Supplevnemal A-greernent.dy and through their duly ailmortmi represeatafi�--s as.of, the Effpcove DaL,, THE COMPANY: Fivida Power anight a". My Bjr. aea iam tis — lEs: Alulhoq2M Cmporate,-0-55car By: JT' Arriota its: Clhklanaq Priscilla Thompson, City Derk Insurance approve- w ,-Z, L -i,— Dania Carrilto, Ad7tintstTaw RisP. klaragement Department Approved as b LegatE Jorge .=emend -x, cill 41 EXHIRTT B 7 ANDARD OF COMFOfrt' H=ATING VENTILATION k AIR CONDTTICN114G iHVAii SYSTEMS The rru:deiines outlined in the Arner ;an Satiety' of Hoat.na S!3v E- litesi aei*irr3l }D^i;ct1,.'?" ittr;`. .LIGHTING, SYSTEMS The Muminater levels c ithned in th lilpm ahn�. rr� � printf Society c` Nosvh A..me6za J EV441. Lia.linn .acd�aa� .K zG M Ediaan: sha2, Le adhemd t^ Lw t sp :sin of new sr_:n ra as wp�ll as irte re. -Ili'! ts`': ez-v vi5- sFkniLys - al)alePniu.Ws. SUPPLEMENTAL AGREEMENT NO, 1 SCHEDULE C AGREEMENT FOR FEASIBILITY STUDY THIS SCHEDULE C OF SUPPLEMENTAL AGREEMENT NO. 1 (this 'Schedule") is made and entered into as of the7tn day of Dec., 2004 by and betweern Florida Power and Light Company (the "Company") and the City of 1yliami (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 that certain Supplemental Agreement No. 1 dated as of December 7 2004 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 )gaster Agreement. 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. Feasibility Study. The Customer hereby requests the Company :to perform a feasibility study with respect to the Service Locations) shown on Appendix I of this Schedule .C, in accordancewith the terms and conditions of the Master Agreement. The Company agrees to perform such a feasibility study for the compensation set forth herein, and the Company undertakes to prepare and submit to the Customer a Feasibility report with respect to recommended ECC7s at such Service Location(s) as provided in the Master Agreement. Detailed specifications, if any, agreed upon by the Parties for the feasibility study (including, but not limited to, energy savings technologies to be reviewed, the Customer's payback criteria, time schedules and other such matters) are set forth in Appendix I 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 each Service Location, providing information .concerning each Service Location, snaking 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. Election to Proceed with ECOs. Upon submission by the Company to the Customer of a Feasibility Report as set forth above, the Customer shall have sixty (60) days to determine, in its sole discretion, if it wishes to proceed with the implementation of any or all of the ECGs recommended by the Company in the report and to supply the Company with a list of the ECGs approved for further action by the Company, ,provided, however, that .the Customer shall first otstain the approval of the Company to proceed oath less than fifty percent (50%) of the recommended ECC?s (as determined on .an estimated implementation cost basis). If the Customer.faits to supply the Company with a list of such approved =COs within such thirty (30) - day period, the .Company's obligations under this .Schedule and the Supplemental Agreement shall terminate, without furtherliability of tate Company, and the Customer shall be obligated to pay the Company for the feasibility study in accordance with the provisions of Section 4.2 of this Schedule. If, however, the Customer wishes to proceed with the implementation of .one or more ECOs and provides the Company with a list of approved ECGs in.accordance with -the foregoing, then the Company and the Customer shalt enter into .a Schedule D (Engineering and Design Order) for such approved ECOs in accordance vAth the provisions of Section 2.04 of the tvlaster Agreement_ 4. Price and?aymenL A_'t Schedule,C Price. Subject to the provisions of Section 4.5 below, the Customer shall pay the.Company:as referenced in Article 2:03 of the Master Agreement {tfie`"Schedule'C Price") for all.Services.performed by the Company pursuant to this,Schedule. The Schedule CPrice is the full compensation for such Services and includes all .federal, state :and loaf taxes, if any, assessed with respect to the Services or vMth respect to tate furnishing of any items hereunder. The Customer will riot be liable for payment of any services no! listed upon or beyond the mounts set forth in Schedule C. 4.2 Payment on Termination. In event of a. terminationof the Company's obligations .under this Schedule and under the: Supplemental Agreement as set forth in Section.3 above,.or as set forth in Section -2.04 of the Master Agreement, the Company shall provide. an invoice to the Customer for the full Schedule C'Price, and:the-Customer shall be obligated -to pay such amount within fot �y five (45) days following receipt of the invoice, 4.3 Deferral :Election. in the event the Customer elects to proceed with implementation of one ormors ECOs.pursuant to Section 3 hereof, the 'Custonier.shall notify the Company, on or before executing a Schedule D (Er.,gineenng and Design Order) with respect to such.ECOs, of the Customer's election to either (a) receive an invoice for the full amount of the Schedule.0 Price, or (b) defer and rollover payment of the .Schedule .0 Price until such time as compensation is pavable to the Company pursuant to Scheduie D (or a subsequent schedule, as sat forth in Schedule D). If the .customer elects the deferral option pursuant to clause (b).of.the foregoing, interest shallac,^,rue.on the unpaid balance of the.Schedule C Price at a rate.egual to the:lesser of twelve percent: (12%).per annum.or .the maximum rate permitted by applicable lawn, beginning on the date thirty (30) days following notice of the Customer's election and payable infutt atthe time of payment of the .Schedule C Pfice. If .the Customer elects, ;pursuant to clause (a) of the foregoing, to receive an .involce, or if the Customer farts to crake a tirnely:election pursuant to the foregoing, the Company shall issue an invoice for the f:.rll amount of the -Schedule CPrice, and the .Customer shall be obligated to pay such amount within thirty (30) days following receipt of the Invoice_ 4.4 Late Payments. Any overdue payment under this Section 4 shall bear interest at the Delayed Payment Rate from the date such payment is due until and including the date of payment. 4.5 Release from Payment Obligation, 4.5.1 Nohvithstar,ding any provision in this Schedule to the contrary, the Customer shall have no obligation hereunder to pay the Company for the Services .performed by the Company under this Schedule if (a) the Feasibility Report submitted by the Company pursuant to Section'1 does not identify at least one potential ECO at a Customer Service Location specified in Schedule A of the Supplemental Agreement which meets the Customer's agreed upon payback, .criteria of 10 years .or.less, .and (b) the 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 town ECO, shall mean the number of years obtained by dividing (i) the total estimated implementation cost of the ECO, as set forth in the Feasibility Report (including .the Schedule C Price specified in Section 4.1 hereof, but excluding all financing costs iassociated with implementation of the ECO), by (ii) the estimated savings to the Customer from the installed ECO, including energy savings, maintenance savings, avoided capital .costs, and other costs as applicable, as set forth in the Feasibility Report. All such estimates shall be made by the Company in its sole .professional judgment and shall.be binding upon the Customer for purposes of this Section 4.5-1. 4.5.2 In the event the Company determines, prior to submission of the Feasibility Report to the Gustomer, that the Company will not be able to identify at least one potential ECO which meets the Customer's agreed upon payback 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 terminate the Supplemental Agreement.and this Schedule 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 the Company the Schedule C Price as otherwise set forth herein. S. 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 pursuant or relating to this Schedule, except as expressiv set forth in Article 4 of the Master Agreement. IN WITNESS WHEREOF, the Parties hereto have executed this .Schedule by and through thoir duly authorized representatives as of the date first hereinabove written. THE COMPANY: Florida Power and Light Company By: -H�i Its: Authorized Corporate Officer THE CUSTOMER: City of tv 6mi, a Fioprda municipal 1 By: Joe Its: City AcL Si. Priscilla Thompson, City Cie Insurance appro ed Dania Carrillo, .Adminis trator P,isk Management Department Approved as -to Legal Form: / Jorge L. emandez, Clty Attorney ;, SUPPLEMENTAL AGREPMENT N-0. 1 SCHEDULEC APPENDIX I - FEASIBILITY STUDY SPECIFICATIONS Audit Locations: 400 SE 2nd Ave. mAIC Service, FPL Acct #04984-84724 400 SE2nd Ave. #West Svc, FPL Acct #1403482712 -400 SE.2nd Ave. :East Svc, FPL Acct #14024-86797 100 SE 2nd St., #Parking Garage, FRL Acct 1#10318-91776 E his ieasibiiay study shall encompass the replacernent.afthe existing chiller plant serving the James L.:Knight: Center (JLKC), including but not limited1c, the water cooled chillears. chilled water and condenser pumps. piping, cooling towers and control systems. The -study Vill also include':a comprehansive lighting retrofit and water -conservation measures of all areas owned/controlled by the City at the JLKC as well as the adjacent Parking Garage- Other areasIbuildings may be added with the consent of the City. The overall project payback criteria .shall be based on a.life-qycle cost analysis including all costs and savings in accordance with F.S. 489.145. 5 ESOZZ71-ION NO. '03- 2- P 00 A RESOLlYTT-ON OF THE MAMT f—Ty COW.TSST ON, w I Tii ATTACrIlMENT fS) ACCEPTTNC- 'L;! RBCOWENDATION OF THE CITY KAN-AGE? APIPROVING THE IND, Olt' THE Br.TTTP.TIOV COMKITT=- P'Jr-,S-J.LXT TO FOR Q-jAL7F1CkTIONS 140. DI -02-2241, THAT THE MOST QUALZ.F--l=- FIRMIS TO pA011l D -B EjqE- RGY TPERFORKWCE S A1.7 1.1 G S SsRvacm-s IN P-Wlk' OR-rr=R: {Z) TIOCRIZDA. POP. -.P U LIGHTT, (2) JOHNSON CONTROLS, INC., AND (3) TECO BOA, INC.,; A'LT'Zjjop� lj�C; T.'_ 'ZZ . =_ CITY !QNAGER TO NEGOTIATE A AGPI=- --->`Z NT WiTh FLORIDA 20WER AND LIGF-L , T.HE TOP-RANiZED FIRM, FOR AN -INITIAL T= -N? -YEAR PZRIor)' THE OPT -TON TO :EXTEND FOR ONE FiVE-YEAP PEERI-OD; 7LMT.;:—r--R AUTHOPIZING CITY YLAiNAGEP TO -IrEGOTIATS AN AGR=--ME-l:T WITTH THE �zCOZZD_p ,M=r) F - .IV AND Tk T ELY ' THIRD-RANKEEZ FIRMI, PZ-SPECTTV7 , IN THE FAIL WITH T:-lZ TOP -PLANKED, RMT C= Mj_ t;': ?kC _- = IT R To ?R= -S THE AGRE2KWT TO = CIT'-' CollIVITiss:1014 FOR CON S::. WK PEAS, ..he Cry Manager issued Peauest forQuajjf:Lc:anonS No. 01-02-2224 s-ee1"ng a crual_—fied, and cantractor r.o develop and �mmleme-�t a cvmprehensive e-jergy -Dez-foZma=e P =z-- Ta f:, -- ,r CITY Cobcaossic 0 YIEL"Z= cm MAP, 2 7 ?n03 'oiiL i i x IV V. WHEREAS, ..his energy perfo-mance Program would re -all _ce maximum enemy and cpera�ioaal sav'inss, *nu=Suan_ to 'Florida Statutes, Section 48°.145, attached and incorncrated, also knour as the "Guaran eed BY:_rgV 'Performance Savings Coil-_=-aCt_4'n- and WHEREAS, the State Of Florida found_ that investment in energy conservation measures in agezipy facilities can reduce the amount of AnArgy consumed amd vrodi we intrn�diate and long-serrn savings; and W.'I.;+t'?,:MAS, it is --t� ;po: cv o he State o Slozlda to encourage agencies to ir,.vast .in energy coxiservation measures tha _educe energy Tonsumption, proauwe a cost savizgs ia< the .and in-=pv=_ he ala}i=v of ?_ndctor a:- in public 'facilities; and 4':EEPyns, _w. `'he -pal.-icy 'J.-.:. ^.«� State O'i 2'lJ=i da to operate., maintain, and when econ,mica?S.Y=easib?e, build o= =enbvat.e, ey-istiatg a.ge :cy fac 2_tlas i7 a manner to minimize energy consumption and maxiiiuze saerMs .savings; and tit'.`. , it 45 8.1.5:? the vo icV of the State t0 aiiCr3U.S'aCfe agencies to reinvest any energy savings resulting from enp-gy ?age 2 of ;5 .03-} conservation measures _r: .additional 'energy conse--vati r, eff" s; an';; W.iiEP,.SAS , the objective of this iproject s to audit and .=Crrade %1he _Litl''s :ac=1ities and ;inT�aS.L�UC`L' �, tlt�l_cing comprehensive per±ormaace contracting.approac..h, -hu . :not..1,irni-ted to, energy audit -s, energy cost 'monitoring, project f-inancing, ana a guarantee that :the total program costs will be oD ooVprp a bwngairbrOre-ering-.; ,amd �2mely implementation o2 this T7rtJje= 3.s a orioy wy o tha City; and WHER:.,AS., the Department of Capital Improvement Projects shaI-I be e Ct.::: Vic:; w:'lii WHEREPS, the Eva"isation Committee evaluated .the propersa? s re.-eived and .ranked Florida Power and Light as the top-rarnked firm to p',rovi6e said sY..ricas, and ?=.L rte =71--c-OMMended that should neaotiations fail with Florida Power and L;ght., the .City Y,anager shall negotiate with. Johnson Controls, inc., the seco'.d-ranked f xrm,., and ` SCO BGA, inc. , t1he third -ranked f-4 --m, respectively; Page 3 of 5 . NCi4 , ? t'�.F pOP.E, 3E ': r ESQ" VED - BY THS CO ITSSTOh� �= T : .0-7 MIAMI', FLORIDA: Section T_�e recitals and findings wontained in -he Preamble to this Resolution are adopted by reference and oa•Si:pTJ asfully set .forth i.i this Sec:tiom. . Section 2.. ..he .r'.°corrme.idat•"ion of the City ma.Tiage :o approve the -findings of the :Evaluation Comrai'yLee �pursuant to :Request 1 o uali i.catio^s No. :01-42-224, :that tine most _, �1 ia1 ... .L. ec c:�=ms o ^yo "—ide amxgy '�«1e_=0. rTM--_MC-e Sax—i:95 contracting services are, in rank order: (1) Florida ?owe_ and- (2) ne(2) Johnson Controls, Inc. , and (.3) TECO .BGA, Inc. , is Section 3. The City Manager .rs .authoriyedlf to negotiate aPrciassional Services Agreement ( "Agreement".) , with Florida ?Ower ....md L.J. �hw+ .um"r.r.,..ke �L- i.tl, lFor an init-all an ra-dv eh u'he op'� o: to e=end .for one a: d -z too tGl __ire-� e period. Section The Ci --v manager is -further authorized= to ne--30t:iate a_2 kczreetrlent U, i- 7 he second -ranked : -- n ELM6 thi r -d -ranked _:irm, respectively, in the event .negot'iatwonS with the top-ranked firm. '-` The herein authorization is furthea subject to compliance .v;i.•th all retrsi.rements that may be imposed by the City At tamey, ancluain_g but not limited to those prescribed by applicable provisions of the City Charter and .Code. Page 4 :of 5 se----ioz 5. The --tv manager is directed to present the nezotiateid Agreement to the C'i--y Commnissiop. I= consider-atio:1. section 6. This Resolution shall become effective iTmedia--ely upon its adoption and signature of the Mavc-'V PASSET) AM ADOPTED this 27th day 1cf p1p ,rcj, , 2003. MA3 UE -1; A. DIA2, P9v_ AT=EST: ?r IS SL?sta A. THC)YjPfOlq CITY CT EPJ-� APPROVED AS Tc3 FORK ID CDR ,,I= ATTORNEY =:AZ -. Br S 'If the Mayor does not sign this Resolution, it sha-11 become effective at the end of --en.calendar days from. the :date it was passet end ado — ,pted. the Mayor vetoes this Resolution, it shall become effective immediately upon override of the veto by tile -."icy CC=--'zsion' Pace 3 of 5 03_UO City of Miami City Hall r i,�`-----_y�•;•. 3500. Pan American Drive "Miami, FL 33133 `°e`„ Legislation f, � �www.miamigov.com Resolution File Number: 09-01244 Final Action Date: A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), f - ESTABLISHING A NEW SPECIAL REVENUE PROJECT ENTITLED: "ENERGY T. o M FEFFICIENCY AND CONSERVATION BLOCK GRANT," AND APPROPRIATING FUNDS, IN THE AMOUNT OF $4,742,300, CONSISTING OF A GRANT AWARD �y F FROM THE UNITED STATES, DEPARTMENT OF ENERGY, WHICH WILL BE �— z USED TO IMPLEMENT ENERGY EFFICIENCY RETROFITS ON CITY OF MIAMI BUILDINGS, TO COMPLETE THE CONSTRUCTION OF THE MIAMI GREEN LAB, 01 ^� AND FOR ADMINISTRATIVE COSTS AS ALLOWED BY SAID GRANT; z AUTHORIZING THE CITY MANAGER TO EXECUTE THE ASSISTANCE m rT AGREEMENT, IN SUBSTANTIALLY THE ATTACHED FORM, IN ORDER TO 'y IMPLEMENT THE ACCEPTANCE AND ADMINISTRATION OF SAID GRANT f7 -- AWARD. WHEREAS, the City of Miami ("City") has a strong interest in increasing energy efficient to rT reduce costs to taxpayers and increase environmental benefits to the City; and ■ WHEREAS, in September, 2008, the Miami City Commission unanimously adopted MiPlan, the City's Climate Action Plan, that specifically recommends improving energy efficiency and conservation in the City; and WHEREAS, the City has been awarded a grant from the United States Department of Energy, in the amount of $4,742,300, to implement energy efficiency and conservation programs; and WHEREAS, it is appropriate for the City Manager to accept said grant and to establish a new special revenue project for the appropriation of said grant award; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Resolution are adopted by reference and incorporated as if fully set forth in this Section. Section 2. The following new Special Revenue Fund is established and resources are appropriated as described below: FUND TITLE: RESOURCES: APPROPRIATIONS Energy Efficiency and Conservation Block Grant United States Department of Energy $4,742,300 Miami Green Lab, Energy Efficiency Improvements, and Administrative Costs $4,742,300 City of Min M; Pnoa 7 nr 9 P.P»md !l„. l 1/9a/9nnn File Number. 09-01244 Section 3. The City Manager is authorized{1 } to execute the Assistance Agreement, in substantially the attached from, in order to implement the acceptance and administration of said grant award. Section 4. This Resolution shall become effective immediately upon its adoption and signature of the Mayor.f2} APPROVED AS TO FORM AND CORRECTNESS; JULIE 0. BRU CITY ATTORNEY asC Footnotes: {1} The herein authorization is further subject to compliance with all requirements that may be imposed by the City Attorney, including but not limited to those prescribed by applicable City Charter and Code provisions. {2} If the mayor does not sign this Resolution, it shall become effective at the end of ten calendar days from the date it was passed and adopted. If the Mayor vetoes this Resolution, it shall become effective immediately upon override of the veto by the City Commission. THIS DOCUMENT I5 A SUBSTITUTION TO ORIGINAL RACKI'P. ORIGINAL CAN BE SEEN AT THE END OF THIS DOCUMENT. City oI ffiand Pate 2 o(2 Printed nen: T 1I23M)n9