HomeMy WebLinkAboutSupplemental Agreement No. 1SUPPLEMENTAL AGREEMENT NO. I
SCHEDULE C
AGREEMENT FOR FEASIBILITY STUDY
THIS .SCHEDULE C OF SUPPLEMENTAL AGREEMENT NO. 1 {this "Schedule") is
made and entered into as of the7th clef' of het., 2004 by and between Florida Power.and Light
Company (the "Company") and the City of - Miami (the "Customer") (the Company and the
.Customer each being referred to herein individually as a "Party" and collectively as the "Parties"),
with reference is the following:
RECITAL
This -Scheciule is entered -into pursuant to that certain Master Agreement for Demand .Side
Management and Energy Efficiency Services dated as of t)ee.ember 7 , .2004 between the
Company and the Customer (the "Master Agreement"), and that certain Supplemental
Agreement No, 1 dated as of llec.e°ti'E_r 7 , 2004 also between the Company and the
Customer (the "Supplemental Amen -lent"). Capitalized Perms used herein without other
definition shalt have the meanings set forth in the Master Agreement.
NOW, THEREFORE, in consideration of .the mutual promises :and agreements sat Foft
herein and in the Master Agreement, the Parties, intending to be legally bound, hereby agree as
follow:
1. F sasibility Study. The Customer hereby requests:the .Oornpany .to pe.rforn; a roasibiitiv
study with respect to the -Service Location(s) shown on Appendix I of :this .Schedule C. in
accordance with the terms and conditions of the Master Agreement The Company agrees to
perform such .a feasibility study for the compensation sat forth herein, :and the Company
undertakes to prepare and submit to the •Customer a Feasibility Report with respect to
recommended ECOs at•such Service Location(s) as provided in the Master Agreement. Detailed
specifications, if any, agreed upon by lhe•Parties for the •feasibility study (including, but not limited
.to. energy savingstechnoloaies to be reviewed, the Customer's pavbactr criteria, time schedules
and other such matters) are set 'forth in Appendix l 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 '.L ooalinn, providing information concerning each Service
Location, making appropriate Customer personnel available if requested by the Company to
-assist the Company -in performing such Services, and tatting 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 ECOs
recommended by the Company in the report and to supply the Company with a list of the ECUs
approved for further action• by the Company provided however, that the Customer shall first
obtain the .approval of the Company to proceed with less than fitly percent (50°iu) of the
recommended Eii.lOs lee determined on an :estimated implementation , cost basis). If the
Customer falls to supply the Company writ ,tl list or such approved ECOs.wilhin such:thirty (30)•
da>1 period, the Company's obligations under this Schedule and the Supplemental Agreement
shaft terminate, without further liability of the Company, .and the Customer shall be iobligale..ci to
pay the Company for the leasibillly study in. accordance wilh the provisions of Section 4,2 of this
Schedule. 'If, however; the Customer wishes to proceed vvlth'the implementation of one or More
ECOs.and provides :the Company ;rich:ra -f(Of.approved: CDs in:accnrdance with the foregoing,
then the Company and the .Ctlstcrm r :shall .enter into .a Schedule -D (Engineering .and Design
Greer) for such approved'.;=COs in.accorcanae with 'Ihe provisions of SeGIon:2.04 of the h/aster
Anreemenl.
4.-Priceand Pavment,
4.-1Schedule C`Prine. Subject .tc•the:;oravisions of Section4.5 below. -the..Customer:shall
.pray the Company -as referenced in Article 2..D :of aherlvlashr Agreement.(1he".'Schedule:'Caprice" )
for all Services performed .by the Company. pursuant - lc. this Schedule. The Schedule C,Price'is
!ha lull compensation for such Services ens includes all federal. state and local taxes, if any,
assessed with respeclao the •Services Or with rec,pect:tc the -furnishing of .any Items hereunder.
The :Customer will not :be liable tor .payment of any services not listed upon or beyond :-the
amounts.setiorlh in Schedule C.
4.2 ''Pavment:on Terminitran. Inthe eve.ni of a terminaiion.of the Company's obiigations
under this Scnwdufe and:under the SupplernentatAgreemen[as.set forth in Section.3 above, or a$
set forth in'Seclion2.04.of the -Master Agreement, the Companyshall provide an invoice to the
Customer iorthe full Schedule C Price, and.the Customer small.b=_.obligated:Act pay .such.amount
withimforty five (45) days followinrl.receipt-of-Ina invoice.
4. Deierral Election. In the event the Customer elects te.proceed vulth.implermenlation
cf one.ormoreiECQs.pursuent to Section_; hereof, theiiCustomer.shall notify fhe.Comcany,,,on.or
:before exectiting.a Sch_dute.D (Engineering and Design Order) with respect:to isuch.ECGs..cirlhe
Customer's; election to either (a) receive an.invoice lorthe lull -amount .of:the Schedule C_price ar
(b) defer and rollover .payment of he Schedule C iPrice until such time ee compensation is
payable to the Company pursuant to Schedule D (or a subsequent s hedute, a5 set forth in
Schedule D). if the Customer elects the deferral option pursuant to clause (b) of the foregoing,
intere.s1 shall accrue on the unpaid. balance of the Schedule C Price at a raie equal to the lesser of
twehce.percanl ( .%).aer annum or The maximum rale permitted .by applicable:law, beginning on
.the dale thirty (30) days following notice of the Customer's etect.ion.and payable in full .at the time
of payment of the 9chedule•C Price, If .the Customer elects, pursuant •to clause (a) of the
foregoing,.to receive an:invoi e, or it .Ike Customer fails -to make .a'tlmely etection aurzuant .to the
foregoing, the Company shall iesue..entinvaicr tor':the;'iuII.amounbof the. Schedule-.CPrice.:andihe
Customer shall ibe 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 Oblitiation.
4,5.1 Notwithstanding any provision in this Schedule to the contrary, the Customer shall
have no obligation hereunder•to.pay the Company (or the Services performed by the Company
under this Schedule if (a) the Feasibility Report submitted by the Company pursuant to Section-1
does not identity at least one potential .ECO al a Customer Service Location specified in
• Schedule A of the Supplemental Agreement .which meets the Customer's agreed upon payback
criteria of 1:0 years .or less, and (b) the .Customer .does not elect to proceed further with .any
approved ECD as set -forth in Section 3. -For purposes of the foregoing, the term "payback
criteria", with respect to an-ECO, shall mean -the number of years obtained by dividing (I) the total
estimated implementation cost of 'the -ECO, as set forth in the Feasibility Report (including ahe
Schedule C Price specified in Section 4.1 hereof, but excluding:all financing costs associated with
implementation of the ECU), by (it) the estimated savings to the Customer -from Ihe 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 ils sole processional judgment and .shall be binding upon 11.te Customer tor purposes
of thisSection 4.5.1.
4:5.2 to the event the Company determines,.prior to submission of the Feasibility Report
to the Customer, that the Company will not be able to identity at least one potential ECO which
meets the Customer's agreed upon payback criteria asset forth in Section45..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 abode and to pa.y to the Company the Schedule.0 Price . as otherwise set 'forth
herein.
5, Disclaimer cif INarranties. 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.pursuani or relating to this Schedule, excepl as
expressly set forth in Articls 4 of Ihe Master Agreement.
7T
WITNESS WHEREOF, :the Parties hereto have executed :this Schedule by and through
their duly authorized representatives as of the dale first horainabove.wrItten.
THE COMPANY:
Florida Power and Light Company
k7C) 11'ti
By: 79. eflar-s-4Far*Elt
Rs: Authorized Corporate Officer
THE CUSTOMER:
. CtiY-of Karni, a 'Fiarraa iviuniCipai
/
I (
/rporation
By: Joe Arifjora
Its; Citylvtanager
APEtst:
)
)-/ . /6,7 //7
Priscilla Thompson, City Clay
nsurance.appro ed:
1
Dania Carrillo, Administrator
Risk Management Department
Approved as:to Legal Form:
JorgeL. emandez, City Attorney
SUPPLEMENTAL AGREEMENT -NC, 1
SCREDULET.;
APPENDfX1 - FEASIBILITY STUDY SPECIFICATIONS
Audit:Locations:
400 SE.2nd Ave, #A/C Service, FPL Acdt .#04984-84724
400 SE.2nd Ave. #West Svc, FPI_ Acct #14034-82712
-400 :SE2nd Ave. t East -SvcF.P.L. Acct #14024,807.97
100 SE 2nrl 'St., gParking „Garage, FPL Acct #10318-81776
This feasibility sludy.shall _encompass the re.placement of the.existino «niller ptant -servinelhe
James :L. Knight Center (iLK.C), including -but. not:limited to, -the -water-cooled .chiliers, :chilled
water -and .condenser,pumps, pipno, tooling -towers and control systems. The study will :also
include .a comprehensive lighting -retrolli and water conservation measures of all .areas
wned/controlled .by the City at -the JLKC as well .as the adjacent Parking -Garage. --Other
.areastbuildings may be _added with the consent. oilhe City.
The _overall project payback criteria shall.be .based• on .a cost:analysis :including all
costs and savings -in acc-ordance.with F.S. 48.9.14.5.
03 I !.a/ o,
-RESOLUTION NO..
j RESOLUTION OF THE M AMI CITY COMMISSION,
i4 T.II • A':-".TACH4IENT (S) , .ACCEPTING TEE
RECOMMENDATION OF TIE CITY MANAGER APPROVING
THE _ INCZOGS OF TEE EVALUATION COMMITTEE
,. E
PURSUANT 'TO RF,,.QUEST FOR QUALIFICATIONS
VO . 0.2 - C'2 .22:_ , THAT T THE MOST QUALIIPIED .h I t4S
TO PROVIDE ENERGY ?EF F.ORM2 NCE SAVINGS
CONTRAC_: G S EEV CES APE, IN RANK ORDER:.
(n) ?Z;7E`T.D . POWER AND .L:G TT , .(2) JOHNSON
CONTROLS, INC.., AND (.3) WECC .EGA,
AUTHORIZING ORI:ZI1 G THE CITY KANAGER TO NEGOTIATE 'A
?RO I.S ZONAL `_ RVLTES AGREEMENT
r,:v�.�F:Erl+ SRT" ? W Tc FLORIDA POWER AND LIGHT ,
THE •TOP -RANKED _.IRN, :FOR AV ._NI_IAL, TEN --:'EAR
:PE T E, .WIT? TEE OPTION -To EXTEND FOR ONE
ADEZTIONW., :TI 7E ,7: 7. ...IOD; F.D7TniER
AU .':fir _T7NS _E_ C='TY MANAGER TC NE OTIr'n`.^ :: N
AGREEMENT ENT :WITH THE SE C3ND-R'ANKEO .FIRM .AND
THE _RI? -TANCEt ^.I_t M, ?ES?EC— .-V »LY , ZN w'R'RR
VENT ' ESST.iATICNS XITE IEE TOP —RANKED
FIRM; ZIRECTING THE CITE 'MANAGER. TG PRESENT
THE AGREEMENT TD TEE .C, .__ COMMISSION FOR
:CONSIDERATION -
WHEREAS, h:e Tidy Manager issued Request for Qu.aii._ihatnns
N . Ci -o2 e _ u:uw
=,mod
�_....W'd pe ± .rmande
.c nc a^:.Crr t o .dove:2.c p and implement .a comprehensive .energy
?G'r dman2.. ^ri.'.vg=a,m 'fio._ ; and
F F.
CITY CnOB ZjO
I`mrT
this energy,, per±ormanae prc r,aTn wound:realize
tional aav:i.'nas Pursuant to 'l:oride
maximum �.�Prg-,• and a�Yra
Statutes, Section 48.9.1•45, .at-t,ached and .:incorporated., a1.so known
�zleM1" Performance Savings Con:�.:.a=in„7, n?Z.cµ ; '
as the "Guaranteed _.. -
and
WHERE1_ whe State of "l.ccid'a ±aund that nveszmv: r
in
energy .conservation measures in agency 'facilities .can .reduce the
mount: :of energy consumed -any. produce immediate and lona - to m
, zxings ; and
of 'Florida
-1-1 -policy of the Stat
encourage .aoencies -to in e ercy conservation measure
..'aauce an..._gy ._^:1'EUmDt.:LDt, produce ;a cost savings f07
ti1E
:agency (muu:i cipa l i:c.y?
1D1 C ._a ci�:i : ew ; and
itr ovo the gal., ty of ±ndao_ a._._ n
kiEEREP.S, i:. is _n€ nc.Licy of the State
operate, maintain, and when economically feasible, build or
renovate, existing agency facilities in c maXl-i7e.'.`
energy consumgts.on .and maximize =npr?y savings; :and
to minimize
WHEREAS, it is also the policy of the .Stage to encourage
agencies to reinvest any energy savings resulting from energy
Page 2 of 5
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x'T RESOLVED BY TEE COMMISSION OF THE
NOW, THEREFORE, ���.
C•-emT OF MIA}`i_' 'FLORIDA:
Section
?'he rPc : al s and `indinas contained in the
Preamble to this Resolution
are
adopted by xcferenae and
incorporated as if 'Set forth ..'..'n this CaeC`.:.Qt1.
Sec -'ion 2 The recommendation of the City Mana er to
Approve the findings of the Evaluation Committee pursuant •o
wpQuAs:.
cr Qu.aii:Li:^a:t. cns Wnat tx22 most
rorovida
performance bravi gs
servicescontracting in rank order: (l) 'l;a-.ida :Paw r .arid
? nd 3.) TECO .3G , Inc , ''s
r- Johnson :C::,:�n� o?'�, Inc., . , 1
acc�t:tW�.
�Yc�.S won 3 The 2-c . Managei .is a� :cam rPd •ho .neact,iv.te
r21.Services Agreemer .i ”.haremeni:' ) , -with Tlcride
:Power az-1:dMho hot -ranked firm. for an :_it_ a' ten-year
to _+n e:ndd cnr- add hional
L1:/
i :he i :ed'` o
ar- The �:.'�..- t':' Manager is... .. .dlli:.r1..:J._r
.n ,y„o...eeme:?t with `Ile' second -ranked firm and
third -ranked firm, respect:' vPly, in c.he event .negotiations fail
with the top -ranked firm.
The herein authorization •is further subject to compliance with
all' requirements that many be imposed by the City Attorney,
including but not limited to those prescribed by .applicable
provisions of the City Ch:arte.r .and Code.
Page 4 of 5
3-.. 5c
-. e^. for 1. The City Manager :.a .di r_ec...ed tG -cS'ese_Yt
nec,Ut..iattd Agreement to the _i y Commission 'for conside7a.t.i.on..
Section .6. This lies01u'::iDn .shal2 become effect vc
immediately upon it:s adcction and sauna u of the Mayor.,''
PASSED AND ADOPTED rims 27:th day of . M Ch ?DZ? ,
Y if
,NUINUEL A. L IZ Z , Fi :` r!J ..
1/
PRIECIDLA ,. :TH'OMP ON
CITY CLERE
APPI OV D .AS "TD FORM/ANDFORM/AND NCO i_WCTNDSS
C TT:' . ATTOPNEY
If the Mayor does .not sign this .Resolution, it shall become
effective at the end of ,..en calendar days from tie date it was
passed and adopted. Ii the Mayor vetoes this Resolution, it
shall become Affective .mmediate'.y upon override of the veto by
he Ci v Commission.
Page 5 of 5
03- 250
reduce -costs to taxpayers and increase environmental benefits to -the City, and
City of Mar
Legi.S 6 a o.e n
Resolution
City i-lall
3500 Pan American
Drive
Miami, FL 33133
www.miamigov.com
File Number: (19-01244
Final Action Datc:
A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH A I IACHMENT(S),
ESTABLISHING A NEW SPECIAL REVENUE PROJECT ENTITLED: "ENERGY
.EFFICIENCCY AND.CONSERVATION BLOCK GRANT," AND APPROPRIATING
FUNDS, IN THE AMOUNT OF .$4;742,300, CONSISTING OF A GRANT AWARD
FROM THE UNITED STATES DEPARTMEN T OF ENERGY, WHICH WILL BE
USED TO IMPLEMENT ENERGY EFFICIENCY RETROFITS ON CITY OF MIAMI
BUILDINGS, TO COMPLETE THE CONSTRUCTION OF THE MIAMI GREEN LAB
AND -FOR -ADMINISTRATIVE COSTS AS ALLOWED BY.SAID GRANT;
AUTHORIZING THE CITY MANAGER TO EXECUTE THE ASSISTANCE
AGREEMENT, IN -SUBSTANTIALLY THE ATTACHED FORM, IN ORDER TO
IMPLEMENT THE ACCEPTANCE AND ADMINISTRATION OF SAID GRANT
AWARD.
Fri
WHEREAS, the City of Miami ("City") has 2 strong interest in increasing energy efflcienci to
-70
l
I
WHEREAS, in September, 2008, .the Miami City Commission .unanimously adopted IJiiP.lan, :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 MIAM1I,
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: Energy Efficiency and Conservation Block Grant
RESOURCES: United States Department of Energy $4,74.2,300
APPROPRIATIONS: Miami Green Lab, Energy Efficiency
Improvements, and Administrative Costs $4,742,300
City of 441arni rr
Page i of 2 Pr0,(ed On: 11/23/2009
C)
File Number: 09-01.244
Section 3. The City Manager is authorized{'I}to exe.cute ,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 May.or.{2}
APPROVED.AS'TO FORM AND CORRECTNESS:
J.U.LI:E O. BRU
CITY ATTORNEY a�
Footnotes :
{-I} 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.
Cite of Miami
Page 2 of 2 Printed On: 11/23/2009
Ci y of lril anii
Legislation
Resolution
City Halt
3500 Pan American
Drive
Miami, FL 33133
www.miamigov.com
File Number: 10-00977
Final Action Date:
A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S),
AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT, IN
SUBSTANTIALLY THE Al I ACHED FORM, CONSENTING TO ASSIGNMENT OF
ENERGY PERFORMANCE SAVINGS SERVICES FROM FLORIDA POWER AND
LIGHT, TO ITS SUBSIDIARY, FPL SERVICES, LLC; FURTHER AUTHORIZING
THE CITY MANAGER TO EXECUTE AN AGREEMENT, IN SUBSTANTIALLY THE
ATTACHED FORM, WITH FPL SERVICES, LLC TO PERFORM ENERGY
EFFICIENCY IMPROVEMENTS IN SIX (6) CITY OF MIAMI FACILITIES, IN AN
AMOUNT -NOT TO -EXCEED -$783:539, SUBJECT -TO THE AVAILABILITY -OF —
FUNDS; ALLOCATING FUNDS FROM THE FEDERAL ENERGY EFFICIENCY AND
CONSERVATION BLOCK, ACCOUNT N0. 98004.411000.534000.0000.00000.
WHEREAS, the City of Miami ("City") has a strong interest in increasing energy efficiency to
reduce costs'to taxpayers and increase environmental benefits to the City; and
WHEREAS, the City has been awarded and accepted a grant from the United States Department
of Energy, in the amount of $4,742,300, to implement energy efficiency and conservation programs,
including building energy retrofits, through the American Recovery and Reinvestment Act Energy
Efficiency Conservation Block Grant ("EECBG"); and
WHEREAS, pursuant to Resolution No. 04-062D, adopted September23, 2004, the Miami City
Commission awarded Florida Power and Light ("FPL") a ten (10) year contract to provide energy
performance savings services, based on the results of a competitive request for. qualifications process,
and, consequently, the City Manager executed a Master Agreement with FPL; and
WHEREAS, FPL has requested that the City consent to the assignment all of its rights and
obligations underthe Master Agreement to its subsidiary, FPL Services, LLC; 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 buildings; and
WHEREAS, FPL Services, LLC, has conducted an investment grade energy audit of eleven (11)
City facilities and presented recommended energy conservation measures ("Eafiis") for six (6) of
those facilities with a total cost to the City of $783,539; and
__ WHEREAS, as required by contract, FPL Services, LLC guarantees that implementation of the_
recommended ECMs will result in energy savings to the City of at least $58,773 each year; and
Ctry of Miami
Page I oft File Id: 10-00977(1Verrion: 11 Primed On: 9/29/2010
File Number. 10-00977
WHEREAS, all EECBG funds must by obligated by April 12, 2011 and expended by October 12,
2012;
NOVV, THEREFORE, 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 City Manager is authorized{1} to execute an Agreement, in substantially the
attached form, consenting to assignment of energy performance savings services from FPL to its
subsidiary, FPL Services, LLC.
Section 3. The.City Manager is further authorized{1} to execute an Agreement with FPL Services,
LLC in substantially the attached form, to perfortil energy efficiency improvements -in -six -(6) -City-
facilities, in an amount not to exceed $783,539, subject to the availability of funding, with funds
allocated from the Federal Energy Efficiency and Conservation'Block Grants, Account No.
98004.411000.534000. 0000, 00000.
Section 4. This Resolution shall become effective immediately upon its adoption and signature of
the Mayor.{2}
APPROVED AS TO FORM AND CORRECTNESS:
JUL IE 0. BRU
CITY ATTORNEY
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.
Clip of Miami
Page 2 of 2 File Id: 10-00977 (Version: I) Printed On: 9/29/2010
ASSIGNMENT AND' ASSUMPTION A GIZEEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT (the "Agreen2erzi.") is dated as
of this 3rd day of August 2010 and is entered into by and between Florida Power & Light
Company, a Florida corporation ("Assignor"), FPL Services, LLC, a Florida limited liability
company (the "Assignee"), and City of Miami, a Florida Iviunicipal Corporation ("Customer").
RECITALS:
A. WFIEREAS. Assignor and Customer entered into a IVIASTER AGREElvfENT FOR
NT DEAND SIDE 1vI.ANAGE1vIENT AND ENERGY EFFICIENCY SERVICES, effective
December 7, 2004 (the "Agreement"); and
E, WHEREAS, Assignor has agreed to assign all of its rights and obligations under the
Agreement to Assignee and Assignee has agreed to accept and assume froth Assignor such rights
and obligations; and
C. WF1PFAS, Customer consents to the assignment from Assignor to Assignee.
AGREEMENT:
NOW THEREFORE, the parties hereby agree as follows:
1. The Assignor hereby assigns, transfers, conveys and sets over to the Assignee, all
right, title and interest of the Assignor in the.rights under the. Agreement (collectively, the
`Assigned Rights"). The Assignor hereby delegates, transfers, conveys and sets over to the
Assignee all duties, liabilities and obligations under the Agreement (collectively, the "Delegated
Duties").
2. The Assignee hereby unconditionally acquires, assumes and accepts "the Assigned
Rights and the Delegated Duties.
3. The provisions of this Agreement are for the exclusive benefit of the parties hereto
and.no other party (including without limitation any creditor of any party hereto) shall have any
right or claim against any party hereto by reason of those provisions or be entitled to enforce any
of those provisions against any party. hereto. -
4. This Agreement shall be governed by and construed in accordance with the
substantive laws of the State of Florida, without regard to its conflict of laws rules.
5. This Agreement shall inure to the benefit of and be legally binding upon all
successors and assigns of the parties hereto.
6. No amendment or modification of this Agreement shall be effective Luniess made in
writing and signed by the parties hereto.
7. If any provision of this Agreement is held to be illegal, invalid, or unenforceable
trader present or future laws; such provision shall be fully severable; this Agreement shall be
construed and enforced as if such illegal, invalid or inien orceable provision hacl never comprised a
part of the Agreement; and the remaining provisions of the Agreement shall remain in full force
and effect and shall not be affected by the illegal, invalid, or unenforceable provision or by its
severance from the Agreement. Furthermore, in lieu of such illegal, invalid or unenforceable
provision, there shall be added automatically as a part of this Agreement a provision as similar in
its teirns to such illegal, invalid or unenforceable provision as inay be possible and be legal, valid
and enforceable.
b. This Agreement may be executed in counteiparts, each of which shall be deemed an
original, but a1] of which together shall constitute one and the same instrument.
9, This Agreement constitutes the entire final understanding and agreement of the
parties hereto with respect to its subject matter, and there are no agreements, understandings,
restrictions, representations or warranties among the parties other than those set forth in this
Agreement.
LN WITNESS WHEREOF, the Assignor and the Assignee have each caused their duly
authorized representative to execute this Agreement where indicated below.
[Signatures on following page]
2
Assignor:
Florida Power & Light Comp a
By:
Name: Sam Forrest
Title: VP Energy Marketing & Trading
3'
Assignee,:
FPL Services, LLC
By:
Name: Gre.g 1-lanlon
Title: VP & GM FPL Services
Customer:
City of Miami a Florida Municipal Corporation
1
By: a
• Name:
Title:
3
ASSIGGNv£ENT AND ASSUMPTION AGREEMENT
WITH FLORIDA POWER ANI) LIGHT COMI'ANY AND
FPL SERVICES, LLC
CITY OF IviLAlvil, a municipal
Conpporation of the State of Florida
CAP.L S A. MIGOYA
CITY MANAGER
ATTEST:
'Ate —0.,L
PR SCILLA A. T
CITY CLERK
/
OMIP Qi<�! f n; —
i/
/
r
/ I
APPROVED AS/TO Th SURANCE
REQUIREMENTS
GARY RESHEFSKV, ~INTERIM
DIRECTOR I
RISK MANAGEMENT
APPROVED AS TO LEGAL, FORM AND
CORRECTNESS
JIJLIE 0.
CITY ATTORNEY
SUPPLEMENTAL AGREEMENT NO. 1
SCHEDULE A
DESIGNATION OF SERVICE LOCATIONS
PursuNt to Supplemental Agreement No, 1
dated as of `La`V day of tJ \ V-J , 2010, between
FPL Services, LLC (the "Company") and Clty of Miami (the
"Customer") (fhe "Supplemental Agreement"), the
Customer hereby designates the following Service
Location(s) of the Customer for purposes of Services to be
provided by the Company pursuant to the Supplemental
Agreement:
City Hall, 3500 Pan American Drive
Police N District Substantiation, 1050 NW 32"d Street
Manuel Arfime Comm. Ctr, 970 SW 1st Street
Police S District Substation, 2200 W Flagler Street
Fire -Rescue Station #1, 144 NE 511' Street
Manuel Artime Comm Center Theater, 900 SW 1 G• Street
Executed this 1-' day of N UJC4 , 2010 by:
THE CUSTOMER:
Clty of Miami
Carlos A. Migoya/ % /
City Manager /
i
Approved as to insurance requirements:
Gary Reshefskyj 1n`terim Director
Risk Management Division,
((;":
«Schedule N_Name»
`.
1
Attest:
77.
Priscilla Thompson I
City Clerk (C1 ^r
Approved as to legal form and correctness:
Julie O. Pik --
City Attorne
SUPPLEIVJENTAL AGREEMENT NO, 1
SCHEDULE E
CONSTRUCTION AND IMPLEMENTATION ORDER
THIS SCHEDULE E (this "Schedule") for
the Service Location(s) set forth in Schedule A is
made and entered into as of the 15th day of
October, 2010, by and between FPL SERVICES,
LLC (the "Company") and the City of Miami (the
"Customer") (the. Company and the Customer
each being referred to herein individually as a
"Party" and collectively as the "Parties"), with
reference to the following:
RECITAL
This Schedule is entered into pursuant to
that certain Master Agreement for Demand Side
Management and Energy Efficiency Services
dated as of December 7, 2004, between the
Company and the Customer (the "Master
Agreement") and the Service Location(s) set
forth in Schedule A dated as of August 3, 2010,
also between the Company and the Customer
(the "Supplemental Agreement"). Capitalized
terms used herein without other definition shall
have the meanings set forth in the Master
Agreement. The terms of the Master Agreement,
the Supplemental Agreement and all Appendices
to this Schedule E are incorporated by reference
into this Schedule E.
NOW, THEREFORE, in consideration of
the mutual promises and agreements set forth
herein and in the Master Agreement, the Parties, •
intending to be legally bound, hereby agree as
follows:
1. Construction and
Implementation Services, The Customer
hereby requests the Company to construct and
install each approved ECO identified in Appendix
I attached hereto, in accordance with the final
accepted Design . Document prepared by the
Company pursuant to City of Wliami Phase 1 IGA.
The Company agrees to perform such Services
for the compensation set forth herein, subject to
the• terms and conditions of the Master
Agreement. • Further detailed specifications, if
any, agreed upon by the Parties with respect to
the Services to be performed by the Company
hereunder (including, but not limited to, the
designation of one or more Implementation
Contractors approved by the Customer) are set
forth in Appendix II attached hereto. Additional
terms and conditions, if any, with respect to the
Services to be performed by the Company
hereunder or the approved ECOs to be
constructed and installed pursuant to this
Schedule are set forth in Appendix III attached
hereto.
2 Customer Cooperation. The
Customer shall use reasonable efforts to assist
the Company in performing the Services
contemplated by this Schedule, including
providing reasonable access to the Customer's
Service Location(s), providing information
concerning. the Service Location(s), making
appropriate Customer personnel available if
requested by the Company to assist the
Company in performing such Services, and taking
any other actions the Company may reasonably
request from time to time to achieve the purposes
and intent of this Schedule and the ivlaster
Agreement.
3. Inspections and Final
Acceptance. During the performance of
Services under this Schedule, the Customer shall
• have the right to inspect the work of the Company
or any Implementation Contractor at any time
upon reasonable prior notice. Upon completion
of construction and installation of each 'ECO, the
Parties shall conduct a final inspection and if the
work is found to be substantially complete, the
Customer shall execute and return to the
Company a Schedule F (Certificate of Final
Acceptance) of the Supplemental Agreement for
each such completed ECO, within twenty (20)
days following receipt by the Customer of a notice
of substantial completion from the Company. If,
upon inspection by the Customer, .the work is not
found to be substantially complete, or if any
material defect or deficiency exists, then the
Customer shall so notify the Company in writing
within such twenty (20)-day period, and the
Company shall promptly perform any necessary
corrections and repairs. When the Company has
completed such corrections and repairs, it shall
again issue a notice of substantial completion to
the Customer, and the foregoing procedure shall
be repeated until such time as the Customer shall
execute and return a Schedule F; provided,
however, that a failure of the Customer" to
respond altogether within any such twenty (20)-
day period following the receipt of a notice of
substantial completion from the Company shall
be. deemed, for the purposes of this Schedule, to
constitute an issuance by the Customer of a
Schedule F with respect to the ECO of which the
Customer has been given notice.
4. Training. if applicable pursuant
to the Master Agreement, the Company shall
provide on -site training for a reasonable number
of'--the---Customer's—operating.-personnel --with
respect to completed ECOs, and the Customer
shall assist in such training, all as more fully
specified in Appendix II. Unless otherwise
provided in Appendix II, such training shall be
conducted with respect to an EGO following the
Final Acceptance Date of the ECO.
5. Price and Payment,
5.'1 Schedule E Price. The
Customer shall pay to the Company the sum of
$783,539.DD for all Services performed by the
Company pursuant to this Schedule. The
Schedule E Price is the full compensation for
such Services and inciudes all federal, state and
local taxes, if any, inciuding sales, use and excise
taxes, assessed with respect to the Services or
with respect to the furnishing of equipment and
materials hereunder.
5.2. Company Provided
Financing, Not Applicable.
5,3 Assignment and
Assumption Agreement, Demand Side
Management Agreement. The following
documents 'are to be deemed exhibits to the
Master Agreement for Demand Side
Management and Energy Efficiency' Services
effective December 7, 2004 between Florida
Power and Light Company and the City of Miami,
assigned to• FPL Services, LLC pursuant to the
Assignment and .Assumption Agreement of
August 3, 2010:
5.3.1. Supplemental Agreement #1
Schedule A: Designation of Service Locations
5.3.2 Supplemental Agreement #1
Schedule E: Construction and Implementation
Order
5.3.3 Supplemental Agreement #1
Schedule E: Appendix I —Approved ECOs
5,3.4 Supplemental Agreement #1
Schedule E: Appendix II — Service Specifications
5.3.5 Supplemental Agreement #1
Schedule E: Appendix III — Draw Schedule
5.3.6 Supplemental Agreement • #1
Schedule E: Appendix IV — Preliminary
Construction Schedule
5 3 7 Supplemental. Agreement #1
Schedule E: Appendix V — Termination Schedule
5.3.8 Supplemental Agreement •#1
Schedule E: Appendix VI — Special Terms and
Conditions for City of Nriami EECSG Award
5.4 Invoices.
Notwithstanding any contrary term in Section 3.09
of the Master Agreement, • all invoices shall be
submitted to:
Ajani Stewart, Environmental Coordinator
Office of Sustainable Initiatives
City of Miami
444 SW 2"d Ave, se Floor
Miami, FL 33;130
6. Disclaimer of Warranties. The
Customer acknowledges and agrees that the
Company makes no representation or warranty of
any kind with respect to the Services to be
performed by the Company or any other person,
including any Implementation Contractor,
pursuant or relating to this Schedule, except as
expressly set forth in Article 4 of the Master
Agreement or, if applicable, in any Appendix
attached to this Schedule.
7. Availability of Funding.
Notwithstanding Section 15.01 of the Master
Agreement, upon thirty (30) days written notice
from the Customer, acting through the City
Manager, this Schedule is subject to termination
for convenience by the Customer due to lack of
funds, reduction of funds, andlor change in
regulations. In the event of termination, the
Customer shall pay the Company for work
performed through the effective date of
termination as determined in accordance with
Section 8 below.
8. Termination Expense. In the
event of a termination by the Customer pursuant
to Section 7 above, the Company will be paid for
work performed prior to the effective date of
termination as substantiated by invoices and
other supporting documentation reasonably
acceptable to Customer; provided that such
amounts will not exceed the cumulative amounts
up to and including the month of the effective
termination date-as-set:forth-in-the Termination
Schedule attached as kppendix V. The
Company will have no recourse against the
Customer for the balance of the terminated
portion of the work; provided however, that, for
the avoidance of doubt and subject to the
preceding sentence, the costs for the
performance of work through the effective date
of termination will include the costs of orders
placed with Company's subcontractors and
suppliers prior to the •notice of termination that
are not cancelable. Notwithstanding Section
12.01 of the Master Agreement, upon payment
of the termination expenses pursuant to this
Section 8, Customer shall have full title for all
Work performed through the effective date of
termination.
9. interest. The Customer will pay
12% per annum simple interest on an
undisputed and uncontroverted balance not paid
25 business 'days from when the Company has
presented a proper invoice, as such terms are
defined by Local Government Prompt Payment
Act. §218.70-218.79, Fla. Stat. All notices and
disputes resolution processes with regard to
invoices and payments thereof shall be subject
to the requirements of the Local Government
Prompt Payment Act.
10, Restrictions on Use of Funds.
The Customer intends to fund the specified work
through a federal grant, the American Recovery
and Reinvestment Act ("ARRA") Energy
Efficiency and Conservation Block Grants
("EECBG"). Company shall provide information,
documentation and cooperation reasonably
necessary for the Customer to comply with its
requirements set forth in Sections 1 through 21
of the SPECIAL TERMS AND CONDITIONS
FOR CITY OF MIAMI EECBG AVVARD,
Attached as Schedule E, Appendix IV
("Appendix IV"). Company and the Work shall
comply with Sections 22 through 30 of Appendix
1V. •
IN WITNESS WHEREOF, the Parties hereto have executed this Schedule by and through their duly
authorized representatives as of the date first hereinabove written.
THE COMPANY:
FPL.S-e'rarts
By: Sam Forrest
Its: President
THE CUSy,MER:
City -o
By: Carlos A. Migoya
Its: City Manager
Attest:
Priscilla A. Thompson
City Clerk
Approved as
eq firemen s:
Gary Reshersky, Interim Ditor
Risk Management rcDivision,
Approved as to legal form and gprrectness:
Julie O. Br-E
City. Attorney
SCHEDULE E
APPENDIX I - APPROVED ECOs
Refer to City of Miami Phase 1 — IGA
Dated May 20, 2010
SCHEDULE E
APPENDIX Il - SERVICE SPECIFICATIONS
Refer to City of Miami Phase 1 — IGA
Dated May 20, 2010
1
SCHEDULE E
APPENDIX Ill — DRAW SCHEDULE
Payment Milestone Amount Due
Design and Development of IGA $100,000
30% Completion of Construction $135,062
75% Completion of Construction $352,592
90% Completion of Construction $117,531
Execution or Certificate -off Final -Acceptance— -- $78,354
Total $783,539
For purposes of this Draw Schedule, the percentage of completion of construction set forth above wit be
based on the percentage of completion of construction as set forth by actual invoices and mutually
agreed upon between the Company and Customer.
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SCHEDULE E
APPENDIX IV — Preliminary Construction Scheclule
See attached pdf file
1
SCHEDULE E
APPENDIX V — Termination Schedule
Description. Cost
FeasibiliiyStudy $100,000
Mobllizaiion Fees $75,000
Month 1 -- Major Material $200,000
Month 2-- Labor, Misc Material $100,000
Month 3-- Labor, Misc fvlaterial $50,000
Month 4-- Labor, Misc Material $50,000
Month 5-- Labor, Misc fvlaterial $40,000
Month 6-- Labor, Misc Material. $40,000
Month 7-- Labor, Misc Material $12,500
Month 8-- Labor, Misc Material $12,500
Month 9-- Labor, Misc Material $12,500
Month 10 -- Labor, Misc Material $12,500
Month 11 -- Labor, Iviisc•Material $78,539
Total Project Cost S7E3,539
SCHEDULE E
APPENDIX VI - SPECIAL TERMS AND CONDITIONS FOR CITY OF MIAMI EECBG AWARD
SPECIAL TERMS AND CONDITIONS
Table. of Contents
Number Subi ent
1. RESOLUTION OF CONFLICTING CONDITIONS 1
2. AWARD AGREElvIENT TERMS AND CONDITIONS 1
3. ELECTRONIC AUTHORIZATION OF AWARD DOCU1vIENTS 1
4. PAYMENT PROCEDURES - ADVANCES THROUGH TEE AUTOMATED STANDARD
APPLICATION FOR PAYMENTS (ASAP) SYSTEM 1
5. CEILING ON AD1vENISTRATIVE COSTS
6. LIMITATIONS ON USE OF FUNDS
7. 1NDIR_ECT COSTS -AND FRINGE BENEFITS ARE -NOT -REIMBURSABLE - - — - - - -- 2
8. PRE -AWARD COSTS
9. USE OF PROGRAM INCOME
10. . STATEMENT OF FEDERAL STEWARDSHIP
11. SITE VISITS 3
19. REPORTING REQUIREMENTS 3
13. PUBLICATIONS 3
14. FEDERAL, STATE, AND IvfUNICTAL REQLTEREIvIENTS 3'
15. LOBBYING RESTRICTIONS 3
16. STAGED DISBURSEIVENT 4
17. NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) REQUIREMENTS
I 8. HISTORIC PRESERVATION
19. WASTE STREAM
20. DECONTAIvEINATION AND/OR DECOlvIlvIISSIONING (D&D) COSTS 5
21. SUBCONTRACT/SUBGRANT APPROVALS 6
29. ADVANCE UNDERSTANDING CONCERNLNG PUBLICLY FINANCED ENERGY
IMPROVElvENT PROGRAMS 6
23. SPECIAL PROVISIONS RELATING TO WORK FUNDED UNDER AlvERICAN RECOVERY
AND REITVESTIvENT ACT OF 2009 (May 2009) 6
24. REPORTING AND REGISTRATION REQUEREIvIENTS UNDER SECTION 1512 OF TEE
RECOVERY ACT 10
25. NOTICE REGARDING THE PURCHASE OF AIVERICAN-MADE EQUIP11/2ENT AND
PRODUCTS -- SENSE OF CONGRESS 10
26. REQUIRED USE OF A_MERICAN IRON, STEEL, AND MANUFACTURED GOODS —
SECTION 1605 OF THE AlvIERICAN RECOVERY AND REINVESTMENT A.CT OF 2009 11
27. REQUIRED USE OF AMERICAN IRON,' STEEL, AND MANUFACTURED GOODS
(COVERED UNDER INTERNATIONAL AGREEMENTS) — SECTION 1605 OF THE
AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 13
28. WAGE RATE REQUIR_EMENTS UNDER SECTION 1606 OF TiE RECOVERY ACT 16
29. RECOVERY ACT TRANSACTIONS LISTED IN SCHEDULE OF EXPENDITURES OF
FEDERAL AWARDS AND RECIPIENT RESPONSIBILITIES FOR INFORMING
SUBRECEPENTS 17
30. DAVIS-BACON ACT REQUIREMENTS 17
I. RESOLUTION SOLUTI.ON OI' CONFLICTING CONDITIONS
Any apparent inconsistency between Federal statutes and regulations and the terms and conditions
contained in this award must be referred to the DOE Award Administrator for guidance.
2. AWARD AG:LEDENT TERMS AND CONDITIONS
Title
Statement of Project Objectives
Federal Assistance Reporting Checklist and Instructions
3. Budget Pages (SF 424A)
c. DOE AssistanceRegulations,10 CFR Part 600 at httn://ecn:gnoaceess.aov.
d, Application/proposal as approved by DOE.
e. National Policy Assurances to Be Incorporated as Award Terms in effect on- date of award at
htma/manazement.enemy. nov/business doe/1374.htm.
This award/agreement consists of the Assistance Agreement, plus the following:
a. Special Terms and Conditions.
b. Attachments:
Attaclunent Number
2.
3. ELECTRONIC AUTHORIZATION OF AWA_F_D DOCUMENTS
Acknowledgement of award documents by the Recipient's authorized representative through electronic
systems used by the Department of Energy,' specifically FedConnect, constitutes the Recipient's acceptance
of the terms and conditions of the award. Aclmowiedsement via FedConnect by the Recipient's authorized
representative constitutes the Recipient's electronic signature.
4. PAYMENT PROCEDURES - ADVANCES THROUGH TIE, AUTOI 4.TE'D
ST AI\�D RD APPLICATION FOR PAYI TENTS (_AS A_P) SYSTEM
a. Method of Payment. Payment will be made by advances through the Department of Treasury's ASAP
system.
b. Renuestina 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. Adiustine pavmnent 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 Forum that you filed with the U.S. Department of Treasury.
5. CEILING ON ADMINISTRATIVE COSTS
Local government and Indian Tribe Recipients may not use wore than 10 percent of amounts provided
1
under this program, or 5i75,000, whichever is greater (EIS.A. 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 au award solely to
provide additional funds for changes in administrative costs. The Recipient shall not be reimbursed on this
project for any final administrative costs that are in excess of the designated 10 percent administrative cost
ceiling. In addition, the Recipient shall neither count costs in excess of the administrative cost ceiling as
cost share, nor allocate such costs to other federally sponsored project, unless approved by the Contracting
Officer.
6. LIMITATIONS ON USE OF FUNDS
a. By accepting funds under this award, you agree that none of the funds obligated on the award shall be
expended, directly or indirectly, for gambling establishments, aquariums, zoos, golf courses or swimming
pools.
b, Local government and Indian tribe Recipients may not use more than 20 percent of the amounts provided
or S250,000, whichever is greater (EISA Sec 545 (b)(3)(B)), 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 S250,000, 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 binge benefits. Therefore, those expenses shall
not be charged to nor reimbursement requested for this projectnor 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. Pi E- A E%t A.RD 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 IIVCOIVEE
If you ram 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.
10. STATEMENT OF FEDERAL STEWARDSI-IIP
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
2
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. Al] site visits and evaluations must be performed in a manner that does not unduly interfere with or
delay the work.
12. REPORTING RE QUIREN E N T S
a. Reouu•ements. The repotting 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. Yon 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:
Acknowledgment: "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
Numbers) [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 warrauty, express or implied, or assumes any legal liability or responsibility Tor
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, reconunendation, or favoring by the United States
Government or any agency thereof. The views and opinions of authors expressed herein db 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 the award shall be
expended, directly or indirectly, to influence congressional action on any legislation or appropriation matters
pending before Congress, other than to communicate to IA:embers 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 Blocic 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 identifies] 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 or this award, upon satisfying the conditions, the Contracting Officer will lift the funding
restrictions associated with the conditions and release the remainder oftheinitial-disbursement-of----
funds.
2. Projectperformaoce 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 reidew
are met. Failure by the Recipient to demonstrate acceptable performance under this award will be deemed
a noncompliance pursuant to 10 CFR 500. 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 EN` IRONYMNTAL POLICY ACT (NEPA) REQUIREMENTS
You are restricted from taking any action using Federal funds, which would have an adverse effect ou 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.
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.
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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 DDE regarding those activities.
Energy Efficiency Retrofits in Existing City -Owned Buildings
Prohibited actions include: Demolition, construction, removal, installation or disposal activities, until such time
that Recipient complies with the Waste Stream and Historic Preservation clauses.
This restriction does not preclude Recipient from: (1) purchasing 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 (NEPA:), consistent with DOE's 2009
letter of delegation of authority regarding the NHPA. Section 106 applies to historic properties that are listed in
or eligible for listing in the National Register of Historic Places. In order to fulfill the requirements of Section
106; the recipient must contact the State Historic Preservation Officer (SHPD), and, if applicable, the Tribal
Historic Preservation Officer (THPO), to coordinate the Section 106 review outlined in 36 CFR Par 800.
SELPO contact information is available at the following link: htto://www.ncshuo.orstrfind/indexiatin. TEIPO
contact information is available at the following lime: httn://www.nathoo.orairrintihtml
Section 110(k) of the NHPA applies to DOE funded activities. Recipients shall avoid t
results in an adverse effect to historic properties pending compliance with Section 106.
any action that
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 bacicground documentation to the
SHPO/TELPC for its review, and the SFIPO/THPO has provided written concurTenceto the Recipient that it does
not object to its Section 106 finding or.detennination. Recipient shall provide a copy of this concurrence to, the
Contracting Officer.
19. WASTE STREAM
Prior to the expenditure of Federal funds to dispose of sanitary or hazardous waste, the Recipient is required to
provide documentation to the Project Officer demonstrating that it has prepared a disposal plan for sanitary or
hazardous waste generated by the proposed activities. Sanitary or hazardous waste includes, but is not limited
to, old light bulbs, lead ballasts, piping, roofing material, discarded equipment, debris, asbestos, etc.
The DOE Contracting Officer shall consider compliance with this clause complete only after the Recipient has
submitted adequate documentation to DOE for its review, and DOE has provided written approval to the
Recipient of its proposed plan to dispose of its sanitary or hazardous waste.
20. DECONTAMINATION AND/OR DECOMMISSIONING (D&D) COSTS
Notwithstanding any other provisions of this Agreement, the Government shall not be responsible for or have
any obligation to the Recipient for (i) Decontamination and/or Decommissioning (D&D) of any. of the
5
1
Recipient's facilities, or (ii) any costs which may be incurred by the Recipient in connection with the Dat.D of
any of its facilities due` to the performance. of the work under this Agreement, whether said wort; was performed
prior to or subsequent to the effective date of the Agreement.
21. SIIDCONTRACT/SU'$GRANT 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/subo ant must be approved by the DOE
Contracting Officer.
b. Upon the recipient's selection of the subcontractors)/subg antee(s), and within 1 E0 days of the award date
in Block 27 of the Assistance Agreement, the recipient shall provide the following information for each,
regardless of dollar amount:
Name
- DUNS Number
- Award Amount
Statement of work including applicable activities
EF-1 for all proposed activities •
c. In addition to the information in paragraph b. above, for .each subcontract/subunit that has an estimated
cost m•eater than 25% of the Total Allocation or $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)/subgrant(s) prior to providing written approval.
d. No funds shall be expended on the subcontracts supporting the activities listed in the approved SOPO until
DOE approval is provided. DOE does not guarantee or assume any obligation to reimburse costs incurred
by the Recipient or subcontractor for these activities, until approval is provided in writing by the
Contracting Officer.
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 ofEner•gy intends to publish 'Best
Practices" or other guidelines pertaining to the use of funds made available to the Recipient sunder 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 auy 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 AM ERICA.N
RECOVERY AND REINVESTMENT ACT OF 2009 (May 2009)
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Preamble
The American Recovery and Reinvestment Act of 2009, Pub. L. ] ] ]-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 le a manner that
maximizes job creation and economic benefit.
The Recipient shall comply with all terms and conditions in the Recovery Act relating generally to governance,
accountability, transparency, data collection and resources as specified in Act itself and as discussed below.
Recipients should begin planning activities for their first tier sub -recipients, including obtaining a DUNS
number (or updating the existing -DUNS record), and registering with the Central Contractor Registration
(CCR).
Be advised that Recovery Act funds can be used in conjunction with other funding as necessary to complete
projects, but tracking and reporting must be separate to meet the repotting 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 he referred to the Contracting Officer for reconciliation.
Definitions
For purposes of this ciausc, Covered Funds means funds expended or obligated from appropriations under the
American Recovery and Reinvestment Act of 2009, Pub. L. 11 I -5. Covered Funds will have special accounting
codes and will be identified as Recovery Act funds in the Grant, cooperative am.e.ement or TLA and/or
.modification using Recovery Act funds. Covered Funds must be reimbursed by September 30, 2015.
Non -Federal employer means any employer with respect to covered funds -- the contractor, subcontractor,
grantee, or recipient, as the case may be, if the contactor, subcontractor, grantee; or recipient is au 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 Aet funds directly from the Federal government (including
Recovery Act funds received through grant, loan, or contract) other than au individual and includes a State that
receives Recovery Act Funds.
Sonia! Provisions
A.. Flow.Dowm Requirement
Recipients must include these special terms and conditions in any subaward.
B. Segregation of Costs
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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 Hinds or used for a purpose other thau that of making payments for costs
allowable for Recovery Act projects.
C. Prohibition on Use of Funds
None of the funds provided tinder 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 arty
casino or other Rambling 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 au appropriate inspector general appointed under section 3 or SG of the
Inspector General Act of 198g (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 suberantees, or any
State or local agency administering such contract that pertain to, and involve transactions that relate to, the
subcontract, subcontract, grant, or suberant; and
(2) to interview any officer or employee of the contractor, grantee, subgrantee, or agency regarding such
transactions.
E. Publication
An application may contain technical data and other data, including trade secrets and/or privileged or
confidential information, winch 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 identity each page including_ each line or paragraph thereof containing the data to be protected
and marl; the cover sheet of the application with the following Notice es well as referring to the Notice on
each page to which the Notice applies:
Notice of Restriction on Disclosure and lise of Data
The data contained iu pages ---- of this application have been submitted in confidence and contain trade
secrets or proprietary information, and such data shall be used or disclosed oniy for evaluation purposes,
provided that if this applicant receives an award as a result of or in connection svith 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 Coda.
F. Protecting State and Local Government and Contractor Wfsistleblowers.
Tire 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
8
Comptoller General, a member of Congress, a State or Federal regulatory or law enforcement agency, ti
person with supervisory authority over the employee (Dr 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 contact 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;
au 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 au inspector general report of an alleged reprisal, the
head of the agency shall determine whether there is sufficient basis to conclude that the non -Federal
employer has subjected the employee to a prohibited reprisal. The agency shall either issue an order
denying relief in whole or in part or shall take one or more of the following actions:
- Order the employer to take affirmative action to abate the:reprisal.
- Order the employer to reinstate the person to the position that the person held before the reprisal, together
with compensation including back pay, compensatory damages, employment benefits, and other terms and
conditions of employment that would apply to the person in that position if the reprisal had not been taken.
- 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 reorisal, as determined by the
head of a court of competent jurisdiction.
Nonenforceabiiity of Certain Provisions Waiving Rights and remedies or Requiring Arbitration: E oept 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
predisnute 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, wrvw.Recovery.gov, for specific requirements of this section and prescribed languase
for the notices.).
G. Reserved
H. False Claims Act
Recipient and sub -recipients shall promptly refer to the DOE or other appropriate Inspector General any
credible evidence that a principal, employee, agent, contractor, sub -grantee, suboontractor 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
doctumentation at the request of the Contracting Officer or designee,
J. Availability of Funds
Funds obligated to this award are available for reimbursement of costs until 36 months after the award date.
9
K. Additional Funclint Distribution and Assurance of Anprnnriate Use of Funds
Certification by Governor — For funds provided to any State or agency thereof by the American
Reinvestment and Recovery Act of 2009, Pub. L. 111-5, the Governor of the State shall certify that:
state will request and use funds provided by the Act; and 2) the fords will be used to create jobs and
promote economic growth.
e
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, finding 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 funds made available to State or local governments for infrastructure investments under the
American Recovery and Reinvestment Act of2009, 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
and posted.
24. REPOR'1"ING ND?_EGISTRkTION REQUEREKENTS UNDER SECTION 1512 OF
T r+ RECOVERY ACT
(a) This award requires the recipient to complete projects or activities which are funded under the American
Recovery and Reinvestment Act of 2009 (Recovery Act) and to report on use of Recovery Act funds provided
through this award information from these reports will be made available to the public.
(n) 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 cun•ent registrations in the Central Contractor
Registration (htm://wwuaccr.gor) at all times during which they have active federal awards funded with
Recovery Act funds. ADun and Bradstreet Data Universal Ntunbering.System (DUNS) Number
(http://www. dnb.corn) is one of the requirements for registration in the Central Contractor Registration.
(d) The recipient shall report the information described in section 1512(e) of the Recovery Act using the
reporting instructions and data elements that will be provided online at http://wwwFederalRepor•ting.gov and
ensure that any information that is pre -filled is corrected or updated as needed.
25. NOTICE REGARDING THE PURCHASE OF A 1 +RICAN-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 Americau-made.
10
"'Special Note: Defrnitization of the Provisions entitled, "REQU UD USE OF AMERICAN IRON, STEEL,
AND MANUFACTURED GOODS — SECTION ] 605 OF TF]E AMETJ:CAN RECOVERY AND
REII YESTIvfl3NT ACT OF 2009" and "REQUIRED USE OF A1vIERICAN II:ON, STEEL, AND
IvJANUFACTURED GOODS (COVERED UNDER INTERNATIONAL AGR.EEliv.fENTS) — SECTION 1605
OF THE f: MERICAN RECOVERY AND REINVESTMENT ACT OF 2009" will be done upon definition and
review of final activities.
26. REQUIRED USE OF AKEPJCAN IRON, STEEL, AND MANUFACTURED
GOODS — SECTION 1605 OF THE ANIE1 JCAN P + CO VERY AND
REINVESTIt2NT ACT OF 2009'
(a) De/niitionc. As used in this award termand condition—
(]) Manufactw'ed good means a good brought to the construction site for incorporation into the building or
work that has been—
(i) Processed into a specific form and shape; or
(ii) Combined with other raw material to create a material that has different properties than the properties of the
individual raw materials.
(2) Public building and public work means a public 'ouilding 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 mutt; -Stale, regional, or interstate entities which have
governmental functions). These buildings and works may include, without (imitation, 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.
CD) Domestic _preference. (I) This award term and condition implements Section 1605 of the American
Recovery and
Reinvestment Act of 2009 (Recovery Act) (Pub. L. 11 l-5), by requiring that all iron, steal, and
manufactured goods used in the project are produced in the United States except as provided in param'aph (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 duality; or
11
(iii) The application of the restriction of section 11605 of the Recovery Act would be inconsistent with the public
interest.
(c) Requc,rt for determination of inapplicability of Section 1605 or'the Recovw: Act . (1)(i) Any recipient
request to use foreign iron, steel, and/or manufactured goods in accordance, with paragraph (b)(3) antis section
shall include adequate information for Federal Government evaluation of the request, including —
(A) A description of the forcigo 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) Nameand address of the proposed supplier; and
(H) A detailed justification of the reason for use of foreign_ iron, steel, and/or manufactured goods cited in
accordance with paragraph (b)(3) of this section.
(ii) A request based on unreasonable cost shall include a reasonable survey of the market and a completed cost
comparison table in the format in paragraph (d) of this section.
(iii) The cost of iron, steel, and/or manufactured goods material shall include all delivery costs to the
construction site and any applicable duty.
(iv) Any recipient request for a determination submitted after Recovery Act funds have been obligated for a
project for construction; alteration, maintenance, or repair shall explain why.the recipient could not reasonably
foresee the need for such determination and could not have requested the determination before the funds were
obligated. If the recipient does not submit a satisfactory explanation, the award official need not make a
determination.
(2) If the Federal Government determines after funds have been obligated for a project for construction,
alteration, maintenance, or repair that an exception to section 1605 of the Recovery Act applies, the award
official will amend the award to allow use of the foreign iron, steel, and/or relevant manufactured goods. Wiien
the basis for the exception is nonavailabiiity or public interest, the amended award shall reflect adjustment of
the award amount, redistribution of budgeted funds, and/or other actions taken to cover costs associated with
acquiring or using the foreign iron, steel, and/or relevant manufactured goods. When the basis for the exception
is the unreasonable cost of the domestic iron, steel, or manufactured goods, the award official shall adjust the
award amount or redistribute budgeted funds by at least the differential established in 2 CFR 176.110(a).
(3) Unless the Federal Government determines that an exception to section 1605 of the Recovery Act applies,
use of foreign iron, steel, and/or manufactured goods is noncompliant with section 1605 of the American
Recovery and Reinvestment Act.
(d) Data. To permit evaluation of requests under paragraph (b) of this section based on unreasonable cost, the
Recipient shall include the following information and any applicable supporting data based on the survey of
-- suppliers: _.
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Foreign and Domestic .Hems Cosi: Comparison
Description
Unit of measure
Quantity
Cost
(dollars)''
Item l:
Foreign steel, iron, or manufactured good
Domestic steel, iron, or manufactured good
Item 2..
Foreii 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 al] delivery costs to the construction site
27. REQUaED USE OF' A_I r IC 1 IRON, STEEL, AND 'MANUFACTURED,
GOODS (COVERED UNDER 'NTE- R_N A T±OIVAI — SECTION
1605 OF TIIE. AIIYI'RJCAN RECOVERY AND REINVESTMENT NT ACT OF 2009
(a) Definitions. As used in this award term and condition —
Designated country — (1) A World Trade Organization Government Procurement A meement country (Aruba,
Austria, Belgium, Bulgaria, Canada, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany,
Greece, Hong Kong, Huneary, 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 A areement (FTA).country (Australia, Bahrain,. Canada, Chile,. Costa Rica, Dominican
Republic, E1 Salvador, Guatemala, IIonduras, Israel, Mexico, Morocco, Nicaragua, Oman, Peru, or Singapore);
or
(3) A United States -European Communities Exchange of Letters (May 15, 1995) conuntay: 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
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(2) lu the case of a manufactured good that consist in whole or in part of materials from another country, has
been substantially transformed in a designated country into a new and different manufactured good distinct
from the materials from which it was transformed.
Domestic iron, steel, and/or /71cmIr%actured good — (1) is who]]y the growth, product, or manufacture of the
United States; or
(2) hi the case of a manufactured good that consists in whole or in parr 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, one//ar manufactured good means iron, steel and/or manufactured good that is not domestic
or designated country iron, steel, and/or manufactured good.
Manzfactured 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 crsate 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 bmtoinss 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.
(o) Iron, steel, and manufactured goods. (1) The award term and condition described in this section
implements
(i) Section 1605(a) off the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5) (Recovery Act),
by requiring that all iron, steel, and mauufactured 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 am eements. 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 ofX7,443,000
or more.
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(2) Tile recipient shall use only domestic or designated country iron, steel, and manufactured goods in
performing the work funded in whole or part with this award, except as provided in paragraphs (b)(3) and (b)(4)
of this section.
(3) The requirement in paragraph (b)(2) of"this section does not apply to the iron, steel, and manufactured goods
listed by the Federal Government as follows:
To Be Determined
(4) The award official may add otheriron, 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 cast 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 Buv Anierican Act.
(1)(i) Any recipient request to use foreimi iron, steel, and/or manufactured goods in accordance with paragraph
(b)(4) of this section shall include adequate information for Federal Government evaluation of the, request,
including —
(A) A description of the foreign and domestic -iron, steer, and/or manufactured goods;
(B) Unit of measure;
(C) Quantity;
(D) Cost;
(E) Time of delivery or availability;
(F) Location of the project;
(G) game 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 mu-casonable 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 manufactured goods shall include all delivery costs to the construction site and
any applicable duty.
15
(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) lithe 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 orredistribate 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:
Foreign and Domestic Items Cost Comparison
Description
Unit of measure
Quantity
Cost
(dollars)*
Item 1:
Foreign steel, iron, or manufactured good
Domestic steel, on. 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.
28. WAGE RATE REQUIREMENTS QUTREMENTS 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
16
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. 31115, 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 ineorporatec] in any resultant
covered contracts that are in excess of ,52,000 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 RECIPIIENT
RESPONSI$ILITT KS FOR INF'ORNLLNG SUBRECIPIENTS
(a) To maximize the transparency and accountability of funds authorized under the Americau Recovery and
Reinvestment Act of 2009 (Pub. L. 111-5) (Recovery Act) as required by Conm•ess and in accordance with 2
CFR 215.21 "Uniform Administrative Requirements for Grants and Agreements" and OlvIB Circular A-102
Common Rules provisions, recipients agree to maintain records that identify adequatehy the source and
application of Recovery Act funds. OIvB Circular A-102 is available at
htip: //ivww. whitehouse.gov/omb/circulars/a1,02/ a 1 02.ihtml.
(b) For recipients -covered by the Single Audit Act Amendments of 1996 and D1\43 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 ONE Circular _A-133.O1vLB Circular A-133 is
available at httn://www.whitehouse. govIbmb/circulars/a133/a133.html. This shall be accomplished by
identifying expenditures for Federal awards made under the Recovery Act separately on the SEFA, and as
separate rows under Item 9 of Part III on the SF —SAC by CFDA number, and inclusion of the prefix "ARRA -"
in identifying the name of the Federal program on the SEFA and as the first characters in Item 9d of Part 111 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.
(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 subrecipieut expenditure of ARRA funds as well as oversight
by the Federal awarding agencies, Offices of Inspector General and the Governnmeut Accountability Office.
30. DAVIS-BACON ACT REQUIREMENTS
Note: Where necessary to make the context of these articles applicable to this award, the term 'Contractor"
17
shall mean "Recipient" and the term "Subcontractor' shall mean "Subreeipient or Subcontractor" per the
following definitions.
Recipient means the atomization, 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 can'ying out the teams 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 foreig 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 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, Zany. 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 tails definition, includes any fabrication plants, mobile factories;
batch plants, borrow pits, job headquarters, tool yards, etc.; provided--
(i) They are dedicated exclusiveiy, or nearly so, to performance of Me award or project; and
(ii) They are adjacent or virtually adjacent to the "primary site of the worn:' as defined in paragraph (a)(i)(i), or
the "secondary site of the work" as defined in paragrapb (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 renard
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 iucluded.in the "site of the work." Such
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 subscquent.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 tban those contained in the wage determination of the Secretary of Labor
which is attached hereto and made a part hereof, or as may be incorporated for a secondary site of the work,
regardless of any contractual relationship which may be alleged to exist between the Contractor and such
laborers and mechanics. Any wage determination incorporated for a secondary site of the work shall be
effective from the first day on which work under the award was performed at that site and shall be incorporated
without any adjustment in award price or estimated cost. Laborers employed by the construction Contractor or
construction subcontractor that are transporting portions of the building or wort: 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
18
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 tbau quartet() uncier plans, funds, or programs which cover the
particular weekly period, are deemed to be constructively made or incurred during such period.
(3) Such laborers and mechanics shall be paid not less than the appropriate wage rate and fringe benefits in the
wage determination for the classification of work actually performed, without regard to skill, except as provided
in the article entitled Apprentices and Trainees. Laborers or mechanics performing work in more than one
classification may be compensated at the rate specified for each classification for the time actually worked •
therein; provided, that the employer's payroll records accurately set forth the time spent in each classification in
which wort; is performed.
(4) The wage determination (including any additional.classiftcations and wage rates conformed under paragraph
(c) of this article) and the Davis -Bacon poster (WH-132 ]) 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 he classified in conformance with the
wage determination, The Contracting Officer shall approve an additional classification and wage rate and fringe
benefits therefore only when all the following criteria have been met:
(i) The work to be performed by the classification requested is not performed by a classification in the wage
determination.
(ii) The classification is utilized in the area by the construction industry.
(iii) The proposed wage rate, including any bona fide fringe, benefits, bears a reasonable relationship to the
wage rates contained in the wage determination.
(2) If the Contractor and the laborers and mechanics to be employed in the classification (if lmown), or their
representatives and the Contracting Ofdoer 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
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) In the event the Contractor, the laborers or mechanics to be employed in the classification, or thew
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 reconunendation of the Contracting Officer, to
the Administrator of the Wage and Hour Division for determination. The Adrnn istrator, or au 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 'thne is necessary.
19
(4) The wattc rate (including fringe benefits, where appropriate) determined pursuant to subparagraphs (c)(2)
and (0)(3) of this article shall be paid to all workers performing wort; 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 off 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 melting of obligations under
the plan or prop am.
Rates of Wages -Prior Approval for Proceeding with Davis -Bacon Construction Activities
If the Recipient determines at any time that any construction, alteration, or repair activity as defined by 29 CFR
5.2(j) (htto:/lcfr vle n.com/vid/5-2-definitions-196E 1309) 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 Officsr's approval to proceed. If the Contracting Officer
does not concur with the Recipient's determination, the Contracting Officer will so notify the Recipient it(
writing.
20