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AUG-12-2004 09;33 CITY OF MIAMI P,02 J-03-200 . 03/10/03 RESOLUTION NO.‘ 0$ o 250 A RESOLUTION or THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), ACCEPTING THE RECOMMENDATION OF THE CITY MANAGER APPROVING THE FINDINGS OF THE EVALUATION COMMITTEE PURSUANT TO REQUEST FOR QUALIFICATIONS NO, 01-02-224, THAT THE MOST QUALIFIED FIRMS TO PROVIDE ENERGY PERFORMANCE SAVING CONTRACTING SERVICES ARE, IN RANK ORDER (1) FLORIDAPOWER AND LIGHT, (2) JOHNSON CONTROLS, INC., AND (3) TECO BOA, INC./ AUTHORIZING THE CITY MANAGER TO NEGOTIATE A PROFESSIONAL SERVICES AGREEMENT ("AGREEMENT") WITH FLORIDA POWER AND LIGHT, THE TOP -RANKED FIRM, FOR AN INITIAL TEN-YEAR PERIOD, WITH THE OPTION TO EXTEND FOR ONE ADDITIONAL FIVE-YEAR PERIOD; FURTHER AUTHORIZING THE CITY MANAGER TO NEGOTIATE AN AGREEMENT WITH THE SECOND -RANKED FIRM AND THE THIRD -RANKED FIRM, RESPECTIVELY, IN THE EVENT NEGOTIATIONS FAIL WITH THE TOP -RANKED FIRM; DIRECTING THE CITY MANAGER TO PRESENT THE AGREEMENT TO THE CITY COMMISSION FOR CONSIDERATION. WHEREAS, the City Manager issued Request for Qualifications No, 01-02-224 seeking a qualified and experienced performance contractor to develop and implement a comprehensive energy performance program for the City, and A Ti Tr CI ME T CS) CVITAINED OTT CQOSIIMUOM MEET= MAR 2 7 2003 Rnioltnion Nu 03- 250 AUGi2-2304 09:33 CITY OF MIAMI P.03 WHEREAS, this energy performance program would realize maximum energy and operational savings, pursuant to Florida Statutes, Section 499.145, attached and incorporated, also known as the "Guaranteed Energy Performance Savings Contracting Act;" and WHEREAS, the State of Florida found that investment in energy conservation measures in agency facilities can reduce the amount of energy consumed and produce immediate and long-term savings; and WHEREAS, it is the policy of the State of Florida to encourage agencies to invest in energy conservation measures that reduce energy consumption, produce a cot savings for the agency (municipality) and improve the quality of indoor air in public facilities; and WHEREAS, it is the policy of the State of Florida to operate, maintain, and when economically feasible, build or renovate, existing agency facilities in a manner to minimize energy consumption and maximize energy savings; and WHEREAS, it is also the policy of the state to encourage agencies to rei.nveat any energy savings resulting from energy Page 2 of 5 RUG-12-2004 09133 CITY OF MIRMI connervatian measures in additional energy conservation efforts; and WHEREAS, the objective of this project is to audit and upgrade the City's facilities and infrastructure, utilizing a comprehensive performance contracting approach, including but not limited to, energy audits, energy cost monitoring, project financing, and a guarantee that the total program costs will be 100% covered by program energy and operational savings; and WHEREAS, timely implementation of thipa project is a priority of the City; and WHEREAS, the Department of Capital Improvement Projects shall be responsible for the contract once executed; and WHEREAS, the Evaluation Committee evaluated the proposals received and ranked Florida Power and Light as the tap -ranked firm to provide said services, and further recommended that should negotiations fail with Florida Power and Light, the City Manager shall negotiate with Johnson Controls, Inc,, the second -ranked firm, and TECO BOA, Inc,, the third -ranked firm, respectively; Page 3 of 5 Olt-. 250 HUG-1 d-Z0464 iffy; 33 LI IT L r11 HI'I l NOW, THEREFORE, BE IT RESOLVED -BY THE COMMISSION OF THE CITY OF MIAMI , FLORIDA; Section 1. The recitals and findings contained in the Preamble to this Revolution are adopted by ,reference and incorporated as if fully set forth in this Section. Section 2, The recommendation of the City Manager to approve the findings of the Evaluation Committee pursuant to Request for Qualifications No, 01-02-224, that the most qualified firma to provide energy performance savings contracting services are, in rank order; (1) Florida Power and Light, (2) Johnson Controls, Inc., and (3) TECO BGA, Inc., is accepted. Section 3. The City Manager is authorizedl/ to negotiate a Professional Services Agreement ("Agreement"), with Florida Power and Light, the top -ranked firm, for an initial ten-year period, with the option to extend for one additional five-year period. Section 4. The City Manager is further authorized' to negotiate an Agreement with the second -ranked firm and third -ranked firm, respectively, in the event negotiations fail with the top -ranked firm. 3r 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 proviel'Oris Of the City Charter and Code. Page 4 of 5 �._ c.C.Pu4 107::53 CITY OF M I faMI P.06 Section 5. The City Manager is dfrdCted to present the negotiated Agreement to the City Commission for consideration. Section 6. This Resolution shall become effective immediately upon its adoption and ,signature of the Mayor,'-/ PASSED AND ADOPTED this 27tti day of March ATTEST: PRISCILLA A. THOMPSON CITY CLERK. APPROVED AS T(, F'ORMl,ID CORRECTNESS : RO VILARELLO ATTORNEY W6989:tzAS:BSS v 2003. 'MANUEL A. DIAZ, MAYOR 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. Page 5 of 5 0 3 - 250 Mar-28-03 04:30pm MOP T-894 P.008 F-922 ACCEPTANCE OF CITY" MANAGER AND EVALUATION COMMITTEE'S RECOMMENDATION RFQ► NO. 01-02-224 ITEM: Energy Performance Saving Contracting Services DEPARTMENT: City Manager TYPE: Contract REASON: It is recommended that the top ranked firm Florida Power and Light, the top ranked firm, provide energy performance saving contracting services, authorizing the City Manager to negotiate and execute a Professional Services Agreement, for the Office of the City Manager; further recommending that should negotiations fall with the top ranked firm, proceed to negotiate with the second and third ranked firm, as necessary in rank order, until a contract is acceptable to the City; for a period of ten (10) years, with the option to extend for five (5) additional one (1) year periods. Director of Purchasing Da e Awa dRFQO 1-02.a"1a rm argencyP l an JUDY S. CARTER Director Florida Power and Light Attn: Manny G. Rodriguez 9250 W. Flagler Street Miami, Fla. 33133 Dear Mr. Rodriguez: Crittj �Yf ���taxmt December 12, 2003 VIA FAX & REGULAR MAIL CARLOS A, GIM£NEZ City Manager RE: RFQ No. 01-02-224: Energy Performance Savings Contracting Services Please be advised the Evaluation Committee ("Committee") is in the process of evaluating proposals pursuant to the above RFQ. Accordingly, I have been asked to prepare this correspondence on behalf of the Committee to inform you of the following information. The Committee decided to "short-list" and request presentations by each of the top five (5) ranked Proposers as part of the presentation and interview phase. Your firrn, Florida Power and Light, is one of those firms short- listed and asked to provide a presentation to the Coinmittee..As a result, the Committee will reconvene for this purpose on Thursday, January 16, 2003 at 9:30 AM at the Miami Riverside Center, 444 S.W. 2lid Avenue, 10th Floor Main Conference Room, Miami, Florida. The schedule for the meeting and presentations is as follows: Florida Power and Light Johnson Controls Siemens Building Technologies, Inc. Sempra Energy Solutions TECO BGA, Inc. 10:15 AM 10:45 AM 11:15 AM 11:45 AM 1:00 PM The parameters for this process are as follows: (1) Proposer shall be represented, at a minimum, by the Project Manager(s) who will be assigned to work with the City; and (2) Proposer shall have a maximum of 15 minutes to make its presentation, followed by a fifteen (15) minute Question and Answer session in which the Committee will pose questions to the Proposer. Said presentation shall be restricted to the materials submitted in the Proposal. Intervals between presentations will be used by the Committee for its discussions and scoring. Each Proposer is responsible for bringing any needed presentation material or equipment such as slide projector(s), stands, and easels. Should you have any questions, please contact Ms. Pamela Burns, CPPB, Sr. Procurement Contracts Officer, at email pburns@ci,miami.fl.us or via fax (305) 416-1925. Sincerely, Michael A. Rath, Acting Director Chief Procurement Officer c: Evaluation Committee Members [DEPARTMENT OF PURCHASING/444 S.W. 2nd Avenue, 6th Floor/Miami, Florida 33130/(305) 416-1900/Fax: (305)416-1925 E-Mail Address: purchaseOci.miaini.fl.us/Wehsite Address: hnp://ci,niiaii i.8.us/ Mailing Address: P.O. Box 330708 Miami, H. 33233-0708 Mar-25-03 04131pm T-894 P.012 F-922 489.145 Guaranteed energy performance savings contracting. -- (I) SH®RTTITLE,--This section may be cited as the "Guaranteed Energy Performance Savings Contracting Act." (2) LEGISLATIVE FRN0INGS.--The Legislature finds that investment in energy conservation measures in agency facilities can reduce the amount of energy consumed and produce immediate and long -terra savings. It is the policy of this state to encourage agencies to invest in energy conservation rrreasures that reduce energy consumption, produce a cost savings for the agency, and improve the quality of indoor air in public facilities and to operate, maintain, and, when economically feasible, build or renovate existing agency facilities in such a manner as to minimize energy consumption and maximize energy savings. It is further the policy of this state to encourage agencies to reinvest any energy savings resulting from energy conservation measures in additional energy conservation efforts. (3) DEFINITIONS. --As used in this section, the term: (a) 'Agency" means the state, a municipality, or a political subdivision. (b) "Energy conservation measure" means a training program, facility alteration, or equipment purchase to be used in new construction, including an addition to an existing facility, which reduces energy or operating costs and includes, but is not limited to: 1. Insulation of the facility structure and systems within the facility. 2. Storm windows and doors, caulking or weatherstripping, multlglazed windows and doors, heat - absorbing, or heat -reflective, glazed and coated window and door systems, additional glazing, reductions in glass area, and other window and door system modifications that reduce energy consumption. 3, Automatic energy control systems. 4. Heating, ventilating, or air-conditioning system modifications or replacements. S. Replacement or modifications of lighting fixtures to increase the energy efficiency of the lighting system, which, at a minirixcm, must conform to the applicable state or local building code. 6. Energy recovery systems. 7. Cogeneration systems that produce steam or Firms of energy such as heat, as well as electricity, for use primarily within a facility or complex of facilities. ' 8. Energy conservation measures that provide long-term operating cost reductions or significantly reduce Btu consumed. 9. Renewable energy systems, such as solar, biomass, or wind systems. 10. Devices that reduce water consumption or sewer charges. 11. Storage systems, such as fuel cells and thermal storage. 12. Generating technologies, such as micruturbines. 13. Any other repair, replacement, or upgrade of existing equipment. (c) "Energy cost savings" means a measured reduction in the cost of fuel, energy consumption, ldar-45-03 04:31pm T-894 P.013 F-922 and stipulated operation and maintenance created from the implemenrtion of one or more energy conservation measures when compared with an established baseline for the previous cost of fuel, energy consumption, and stipulated operation and maintenance. (d) "Guaranteed energy performance savings Contract" means a contract for the evaluation, recommendation, and Implementation of energy conservation measures, which, at a minimum, shall include: .. The design and installation of equipment to implement one or more of such measures and, if applicable, operation and maintenance of such measures. 2. The amount of arty actual annual savings that meet or exceed total annual contract payments made by the agency for the contract. 3. The finance charges incurred by the agency over the life of the contract. (e) "Guaranteed energy performance savings contractor' means a person or business that Is licensed under chapter 471, chapter 481, or this chapter, and is experienced in the analysis, design, implementation, or installation of energy conservation measures through energy performance contracts. (4) PROCEDURES. -- (a) An agency may enter into a guaranteed energy performance savings contract with a guaranteed energy performance savings contractor to significantly reduce energy or operating cash of an agency facility through one er more energy conservation measures, (b) Before design and installation of energy conservation measures, the agency must obtain from a guaranteed energy performance savings contractor a report that summarizes the costs associated with the energy conservation measures and provides an estimate of the amount of the energy cost savings. The agency and the guaranteed energy performance savings contractor may enter into a separate agreement to pay for costs associate{ with the preparation and delivery of the report; however, payment to the contractor shall be contingent upon the report's projection of energy cast savings being equal to or greater than the total projected costs of the design and installation of the report's enemy conservation measures. (c) The agency may enter into a §uaranteed energy performance savings contract with a guaranteed energy performance savings contractor if the agency finds that the amount the agency would spend an the energy conservation measures will not likely exceed the amount of the energy cost savings far up to 20 years from the date of installation, based on the life cycle cost calculations provided in s. 255.255, if the recommendations in the report were followed and if the qualified provider or providers give a written guarantee that the energy cost savings will meet or exceed the costs of the system. The contract may provide for installment payments for a period not to exceed 20 years. (d) A guaranteed energy performance savings contractor must be selected in compliance with s. 287.055; except that if fewer than three firms are qualified to perform the required services, the requirement for agency selection of three fruits, as provided in s. 287-055(4)(b), and the bid requirements of s. 2.87.0S7 do not apply. (e) Before entering into a guaranteed energy performance savings contract, an agency must provide published notice of the meeting in which it proposes to award the contract, the names of the parties to the proposed contract, and the contract's purpose. (f) A guaranteed energy performance savings contract may provide for financing, including tax exempt financing, by a third party. The contract for third parry financing may be separate from the energy performance contract. A separate contract for third party financing must Includea provision that the third party financier must not be granted rights or privileges that eased the Mar-25-0 04:31pm T-094 P.014 F-922 rights and privileges available to the guaranteed energy performance savings contactor. (g) Irl determining the amount the agency will finance to acquire the energy conservation measures, the agency may reduce such amount by the application of any grant moneys, rebates, or capital funding available to the agency for the purpose of buying down the cast of the guaranteed energy performance savings contract. However, in calculating the life cycle cost as required in paragraph (c), the agency shall not apply any grants, rebates, or capital funding. (5) CONTRACT PROVISIONS.-- (n) A guaranteed energy performance savings contract must include a written guarantee that may include, but is net limited to the form of, a letter of credit, insurance policy, or corporate guarantee by the guaranteed energy performance savings contractor that annual energy cost savings will meet or exceed the amortized cost of energy conservation measures. (b) The guaranteed energy performance savings.contract must provide that all payments, except obligations on termination of the contract before its expiration, may be made over time, but not to exceed 20 years from the date of complete installation and acceptance by the agency, and that the annual savings are guaranteed to the extent necessary to make annual payments to satisfy the guaranteed energy performance savings contract. (c) The guaranteed energy performance savings contract must require that the guaranteed energy performance savings contractor to whom the contract is awarded provide a ion -percent public construction bond to the agency for its- faithful performance, as required by s. 255.05. (d) The guaranteed energy performance savings contract may contain a provision allocating to the parties to the contract any annual energy cost savings that exceed the amount of the energy cost savings guaranteed in the contract. (e) The guaranteed energy performance savings contract shall require the guaranteed energy performance savings contractor to provide to the agency an annual reconciliation of the guaranteed energy cost savings. If the reconciliation reveals a shor'd'fali in annual energy cost savings, the guaranteed energy performance savings contractor is liable for such shortfall. If the reconciliation reveals an excess in annual energycost savings, the excess savings may be allocated under paragraph (d) but may not be used to cover potential energy cost savings shortages in subsequent contract years. (f) The guaranteed energy performance savings contract must provide for payments of not less than one -twentieth of the price to be paid within 2 years from the date of the complete installation and acceptance by the agency, and the remaining Coslz to be paid at least quarterly, not to exceed a 20-year term, based on life cycle cost calculations, (g) The guaranteed energy performance savings contract may extend beyond the rascal year in which It becomes effective; however, the term of any contract expires at the end of each fiscal year and may be automatically renewed annually for up to 20 years, subject to the agency making sufficient annual appropriations based upon continued realized energy savings. (h) The guaranteed energy performance savings contract must stipulate that it does not constitute a debt, liability, or obligation of the state. (6) PROGRAM ADMINISTRATION AND CONTRACT REVIEW. --The Department of Management Services, with the assistance of the Office of the Comptroller, may, within available resources, provide technical assistance to state agencies contracting far energy conservation measures and engage in other activities considered appropriate by the department for promoting and facilitating guaranteed energy performance contracting by state agencies. The Office of the Comptroller, with the assistance of the Department of Management Services, may, within available resources, develop model contractual and related documents for use by state agencies. prior to entering into a guaranteed energy performance savings contract,, any contract or !ease for third -party finarTing, or any combination of such contracts, a state agency shall submit such proposed contract or lease ht-tn-/Agrt.n.r F1ra........_.lip.......,_,_____. _c rp . __ Mar- 5-03 04:31pm From-SH6.D LLP 1 306 577 7001 T-804 P.015 F-022 to the Office of the Comptroller !`or review and approval. • f h Pfr.•/Amnion Fl rrn.2 hm A --. _ U_T ri+r —+e., .•-.-. . . e i. nw..nnn City of Miami Legislation Resolution: R-04-0620 City Hall 3500 Pan American Drive Miami, FL 33133 www.mlamigov.com File Number: 04-01027 Final Action Date: 9/23/2004 A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT, IN SUBSTANTIALLY THE ATTACHED FORM, WITH FLORIDA, POWER AND LIGHT, THE TOP -RANKED FIRM IN RESPONSE TO REQUEST FOR QUALIFICATIONS NO. 01-02-224, PURSUANT TO RESOLUTION NO. 03-250, ADOPTED MARCH 27, 2003, TO PROVIDE ENERGY PERFORMANCE SAVINGS SERVICES FOR AN INITIAL TEN-YEAR PERIOD, WITH THE OPTION TO EXTEND FOR ONE ADDITIONAL FIVE-YEAR PERIOD. WHEREAS, pursuant to Resolution No. 03-250, adopted March 27, 2003, the City Manager was authorized to negotiate a Professional Services Agreement ("Agreement") with Florida Power and Light ("FPL"), the top -ranked firm in response to Request for Qualifications ("RFQ") No. 01-02-224; and WHEREAS, Resolution No. 03-250 directed the City Manager to present the negotiated Agreement to the City Commission for consideration; and WHEREAS, subject to the terms and conditions of the Agreement, FPL will conduct energy audits at facilities selected by City staff and identify candidate energy -saving projects; and WHEREAS, the project candidate would be implemented utilizing a comprehensive performance contracting approach, including but not limited to, energy audits, energy cost monitoring, project financing, and a guarantee that the total program costs will be 100% covered by program energy and operational savings; and WHEREAS, the Department of Capital Improvements and Transportation shall be responsible for the contract once executed; and WHEREAS, the projects identified by the feasibility studies initiated under this Agreement will be subject to Section 489.145 of the Florida Statutes, also known as the "Guaranteed Energy Performance Savings Contracting Act;" and WHEREAS, the State of Florida determined that investment in energy conservation measures in public facilities can reduce the amount of energy consumed and produce immediate and long-term savings; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Resolution are adopted by reference and incorporated as if fully set forth in this Section. Section 2. The City Manager is authorized{1} to execute an Agreement, in substantially the City of Miami Page 1 of 2 File Id: 04-01027 (Version: 1) Printed On: 11/1/2017 File Number: 04-01027 Enactment Number: R-04-0620 attached form, with FPL, the top -ranked firm in response to RFQ No. 01-02-224, pursuant to Resolution No. 03-250, adopted March 27, 2003, to provide energy performance savings services for an initial ten-year period, with the option to extend for one additional five-year period. Section 3. This Resolution shall become effective immediately upon its adoption and signature of the Mayor.{2} Footnotes: {1} The herein authorization is further subject to compliance with all requirements that may be imposed by the City Attorney, including but not limited to those prescribed by applicable provisions of the City Charter and Code. {2} If the Mayor does not sign this Resolution, it shall become effective at the end of ten calendar days from the date it was passed and adopted. If the Mayor vetoes this Resolution, it shall become effective immediately upon override of the veto by the City Commission. City of Miami Page 2 of 2 File Id: 041-01027 (Version: I) Printed On: 11/1/2017 ig f4}IRiaxth. JOE ARRIOLA City Manager December 15, 2004 Mr. Manny Rodriguez, RE,, C.E.M. Regional Sales Manager Florida Power & Light Company 9250 W. Flagler Street Miami, Florida 33174 Re: Master Agreement and Schedule C - Demand Side Management & Energy Efficiency Services Dear Mr. Ro ez i Enclosed please find one (1) original Master Agreement and Schedule C, executed by the City, for the above mentioned project for your records. Should you have any questions, please contact me at 305-416-1289 or clack- palorTrino a(�. ci.mia,mi.fl.us. Sincerely, L Pew Charlene Jacks -Palomino, Contracts Compliance Analyst Cc: Jorge C. Cano, P.E., Deputy Director_.. _- Dianne Johnson, Governmental Affairs and Planning Administrator DEPARTMENT OF CAPITAL IMPROVEMENTS 444 S.W. 2ndAvenue, 8ilti Floor/Miami, EL 33130/(305) 416.1280! tax: (3051 816-2153 Mailing Address: P.O. Box 330700 Mlarni, FL 33233-0700 MASTER AGREEMENT FOR DEMAND SIDE MANAGEMENT AND ENERGY EFFICIENCY SERVICES WITH FLORIDA POWER AND LIGHT COMPANY THIS MASTER AGREEMENT (this 'Agreement') is made and entered into as of the? th day of December , 2004 (the 'Effective Date'), by and between Florida Power and Light Company (the "Company') and The City of Miami (tire '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: RECITALS A. The Company Is In the business of providing demand side management services for customers of Florida Power & Light Company ('FP&L') pursuant to a Company initialed program known as the Energy Efficiency Services Program (the 'Program"); B. The Customer has agreed to participate In the Program by considering the furnishing and upgrading of Its facilities with energy effident equipment and systems in order to achieve potenUal electric demand and energy savings; and C. Pursuant to this Agreement, the Parties wish to set forth their understanding concerning certain energy efficiency services (the 'Services') to be provided by the Company to the Customer under the Program. NOW, THEREFORE, in consideration of Uia mutual promises and agreements set forth herein, the Parties, • Intending to be legally bound, hereby agree as follows: ARTICLE I SCOPE OF AGREEMENT AND TERM 1,01 Scope. Subject to the terms and conditions of thjs , Agreement, Ute Company shall furnish, and the Customer shalt -. purchase and receive, Services requested by the Customer from time to time with respect to certain specified facilities of the Customer (each, a 'Service Location') and with respect to specific Energy Conservation Opportunities (each, an "ECO`) ,fUnrr.i . 1 Identified at a Service Location. The Services to be furnished by the Company with respect to each Service Location and with respect 10 ECOs identified at a Service Location shall be set forth In a supplement to this Agreement (each, a 'Supplemental Agreement') which will be mutually agreed upon and executed by both Parties prior to the Company commencing work at any designated Service Location. Each Supplemental Agreement (a ,form of whidr is attached as Exhibit A to tiffs Agreement) shall cover one or more Service Locations of the Customer and shall consist of the following forms and schedules: Form of Supplemental Agreement Schedule Schedule Schedule Schedule Schedule Schedule Schedule A - Specification of Service Location(s) B - Form of Audit Request C - Form of Agreement for Feasibility Study D -.Form of Engineering and Design Order E- Farm of Construction end Implementation Order F - Form of Certificate of Final Acceptance G - Form of Payment Agreement Upon execution of a Supplemental Agreement or any Schedule thereto by the Parties, such Supplemental Agreement or Schedule shall be binding upon Uto Parties and shalt be incorporated herein by reference as part of this Agreement. In the event of any conflict between. this Agreement and a Supplemental Agreement or Schedule thereto, the terms and provisions of this Agreement, as amended from tine to Umo, shall control, and in the event of any conflict between or among a Supplemental. Agreement and the Schedules thereto, the document of the latest date mutually agreed upon byte' Parties shallconteat,_ :,: • _ The work to be'perfonhlod Ini/Olvas a (Wo•pl aced prooEhss. Phase I the provision of. an eoergyautf€f/stu4y,pef ScIteduIo C 'of • ,i; all 1`e fad_bolIt: corisrdered for tite application orb nerpy conservation me eiet, es•deeign roct by the-CCAstoriier. -This audit - phas.'o-shalt beselflunded°by_the Conipany and -shall result In.a written report presented to the City. . . Phase 2 --Any and all audit costs will be applied toward [his phase and shall encompass the acquisition and Installation of the selected .Brie Prsputd. conservation and facility(s) improvement measures according to Schedules C and E. 1.02 Term. This Agreement shall commence upon the Effective Date and shall continue in effect for ten (10) years until written notice of termination by either Party in accordance with the provisions of Artide 15 hereof; provided That upon such wrieen notice of termination, portions of this Agreement and of one or more Supplemental Agreements previously entered into by the Parties shall remain in effect as set forth In Miele 15. Tim City will have the option to extend the term for one (1) additional five (5) year period. 1.03 Interim Period. Subject to the following sentence, the term of this Agreement shall commence with the date of execution by the parties (the Effective Date). All energy savings acbteved during the Interim Period will bo fully credited to the Customer, Following execution, the Agreement shall be binding en the parties. The period between execution of the Agreement and ECO Implementation acceptance by the Customer shall be knovm as the `Interim Period`. 1.04 Incorporation by Reference. City of Miami RFQ 01- 02-22rt for Energy Performance Savings Contracting Services, and the Company's Response, are deemed as being Incorporated by reference herein as If set forth in full. These documents are supplemental terms to tills agreement. In the event of an express conflict between this Agreement and these documents this Agreement will controi. ARTICLE 2 ENERGY AUDIT AND FEASIDILITY STUDY 2.01 Initiation of Audit, From limo to lime upon the request of the Customer, the Company will meet with the Customer's energy personnel to Identify Service Locations tu- be included in a Company assisted energy effidoncy -Audil; The Parties will agree upon mutually': acceptable, audit procedures and scltedutes, Identify "energy savings. technologies to be reviewed, determine _the. payback criteria - desired by the Customer with respect to now Instaltations, and: agree upon other matters with respect to the audit, ell as set forth In a Supplemental Agreement entered Into by the Parties at such time, which shall Include an executed Schedule A (Specification of Service Locallan(s)) and en executed Schedule 8 (Audit Request). All of the Services to be provided by the Company in performing or assisting in such audit shall be performed by the Company at no cost to the .fifansme. Customer in accordance with the terns and conditions of such Supplemental Agreement and Schedules. 2.02 Audit Report, Upon completion of an audit conducted by the Parties pursuant to Section 2.01, the Company shall submit to the Customer an audit report (an 'Audit Report') identifying potential ECCs, if any, at the Customer's Service Location(s) which the Company believes may be cost effective to implement and which may meet the Customer's payback criteria, as set forth In the Audit Request. The Company shall designate in the Audit Report those ECOs, If any, for which it recommends that a detailed feasibility study be perforated, and the Customer shall have thirty (30) days from receipt of the Audit Report to notify the Company whether the Customer wishes to receive a feasibility study proposal from the Company concerning such ECOs. if the Customer falls to request such a proposal within the thirty (30) day period, the Company's obligations under the Supplemental Agreement covering the Service Location(s) of the audit shall terminate, without further tiability of either Party thereunder, If the Customer requests a feasibility study proposal within such period, then the Company shall submit such a proposal to the Customer, which shall include a designation of the Services to be provided, the technologies to be Included In the study and lire compensation to be paid to the Company for such Seances. The proposal also shall include a completed Schedule C (Agreement for Feasibility Study) of the Supplemental Agreement, to be executed by the Customer and returned to the Company within thirty (30) days of the Customer's receipt of the proposal, If the Customer falls to execute and return to the Company the Schedule C within such period, the Company's obligations under the Supplemental Agreement shall terminate, without further liability of either Party thereunder. If the Customer executes and returns the Schedule C, then the Company shall perform the feasibility study In accordance with the terms thereof. 2.03 Feasibility Report. Pursuant to a feasibility study performed. by the Company as set forth in Section 2,02,- the Company shots' reeenitriend"ECbs for=-rtrttpien e:ntation;:at• the. ... "Sorvico Locations) surveyed-bsed -on a dife•cycli3= cost:apalysis and estimated anergy.iav1ngs•fofbactt ECO. The-Compart}+ashatl • prepare'end-stibmit'td-liie Cusivmer a written.repoit'(a'Feasibility.:,,. E�eperI4) spoafying' eacfft'reco ii1iended'EC4'aii0' providittg:.for... eac(i an'esiirnale of (a) the e potted leVe-rhentaiion anGdpafed:tife-cycle ca's't savings, and (c) the estimated timtng-for . Implementation, all of which shall be estimates only, based on the Company's reasonable assumptions. In the case of each ECO examined In a Feasibility Report, the Company shall provide sufficient Information to determine whether the Customer's payback criteria described In Schedule C (Agreement for Feasibility Study) of the Supplemental Agreement are expected to .Dart Prepiads be met based on the Company's estimates. Settled to the provisions of Schedule C, if the Feasibility (depart submitted by lho Company does not 'identify at least one potential ECO which meets the Customer's agreed upon payback criteria, the Customer shall be under no obligation to pay the Company for the Feasibility Report. The Company shall bill the direct cost associated with the Feasibility Report plus reasonable overhead/profit; not to exceed five percent (5%) which is acceptable to Customer. 2.04 Ennlnoorinn and Deslnn Order. The Customer shall have thirty (30) days following receipt of a Feasibility Report to determine 1f 11 wishes to proceed with the implementation of any or all of tho ECOs recommended by the Company and to supply the Company with a list of the ECOs approved for further action by the Company, If the Customer fails to supply the Company with a list of such approved ECOs within such thirty (30) day period, the Company's obligations under the applicable Supplemental Agreement shall terminate, without further liability of the Company, and the Customer shall pay the Company for Uhe feasibility study In accordance with lho provisions of Schedule C of the Supplemental Agreement (subject to the terms and conditions theme°.. lf, however, the Customer wishes to proceed vfrlh Uie implementation of one or more ECOs and provides the Company with a list of approved ECOs in accordance with the foregoing, Use Company shall provide the Customer with a proposal to develop the design and detailed cost estimate for each approved ECO, which proposal shall include all Services to be performed by the Company In order to quote a dofinttvo fixed price for the installation of each such approved ECO and the compensation to be paid to the Company for such Services. The proposal also shall include a completed Schedule D (Engineering and Design Order) of the Supplemental Agreement, to be executed by the Customer and returned to the Company wi€hfn thirty (30) days of the Customer's receipt of the proposal. if the Customer fail to execute and return to the Company the Schedule)) N tjitn such period, the Company's obligations under the applicable Supplemental Agreement shall terminate, without furher. liability of the Company, and the Customer shall pay, the Company for the feasibility study in accordance with: Jhe - provisions of Schedule C of the Supplemental Agreement. "11 the Customer executes and returns the Schedule D, then the. Company shall perform engineering and design services In accordance with the forms thereof, Mlentmt ARTICLE 3 DESIGN AND INSTALLATION 3.0i Design Services and Estimate. Unless otherwise set forth in Schedule 0, the Company shall prepare and develop, or cause to be prepared and developed, designs, specifications and Installation drawings for each approved ECO identified in Schedule D and shall prepare, through solicitation of bids or otherwise, a detailed cost estimate and proposed implementation schedule for each such ECO. The Company shalt coordinate Its design and engineering work with the Customer's energy personnel, and a lotnt technical review shall be conducted with the Customer, as set forth In Schedule D, when the design documents aro approximately 35% and 95% complete. Designs and specifications shall comply with all applicable laws, codes, standards, regulations and permits (If any) and shall be available for Inspection by the Customer at any time during normal business hours upon reasonable advance notice. Upon line completion of design and development of a final cost estimate for each approved ECO, the Company shall submit to the Customer a design document (a `Design Document`) and fixed -price installation proposal (an 'Installation Price Proposal"), as set forth In Schedule D of the Supplemental Agreement. 3,02 Construction and implementation Order. If, on Uie basis of the Company's submission, the Customer wishes to proceed with the installation and construction of one or more ECOs in accordance with the Design Document and installation Price Proposal, the Customer shall notify the Company Uiereof within thirty (30) days of the receipt of such submission, and the Parties shall thereupon complete and execute a Schedule E (Construction and Implementation Order) of the Supplemental Agreement providing for such work. The Schedule E shall Indude Uio Services to be performed by the Company and the price to be paid by the Customer with respect to each such installed ECO. Prior to executing a Schedule E, the Company ‘will consult with the Customer regarding the selection of any third party contractors .to be retained by the - -.Company -to perfomi installation orconstruction work al the •i•�:Pustomer's Service LccatIon(s):,(each, an `implementation ••1.: Contractor"), and the Company sitail•not select an Implementation �iContiactor .t4witty the .Custdmdr•- has a• reasonable "ob1ectboit_ :.:-.-(provided; }however, that any lncroased cost resulting from` the need to.•seleet 1fl altemative'lreplementeUon Contractor shall ba bome by` y' • ' the Custbniet). 'If_the Customer does not Yrisii t6 proceed-vi1Ur th ""` "' .. —Installation of any ECO In accordance with the.Deslgn Document and Installation Price Proposal, or if the Parties fell to complete and execute a Schedule E within thirty (30) days following the date of rho submission of the Design Document and Installation Price Proposal 3 4f1(e_Prtpirtdl to the Customer, then the Company's obligations under the applicable Supplemental Agreement shaft terminate, without further liability of the Company, and the Customer shall pay the Company for its Services is accordance with the provisions of Schedule D of the Supplemental Agreement. If the Customer elects to proceed vritir an ECO and the Parties enter into a Schedule E in accordance with the foregoing, then the Company shall provide construction and installation services to accordance eith the provisions thereof, 3.03 Elimination of Schedules. No viiths(andiag any provision In tills Agreement to the contrary, the Parties may elect, by mutual agreement, to eliminate and forego any of the steps outlined above and set forth in Schedules 8, C, and I) of the Supplemental Agreement; and, In lieu thereof, the Parties may agree to enter directly Into a Schedule E (Construction and Implementation Order) on the basis of a fixed price proposal for one or more ECOs submitted by the Company to the Customer for the Service Location(s) set forth In Schedule& Such an election may ocarr, for example, In tho case of a standard ECO Identified by the Company in an Audit Report, which Is of such a nature that If does not require a feasibility study or design and engineering services in order for the Company to provide an estimate and quote a fixed -price proposal, or in order for the Customer to request that he ECO be implemented. In such a case, a Supplemental Agreement may consist of some but nut all of the Schedules listed In Section 1,01 of this Agreement, and, upon entering Into a Schedule E of the Supplemental Agreement, the Parties shall be deemed to have waived the preceding provisions of this Agreement which aro no longer applicable. 3.04 Financing. Financing for both Phase [ and 11 shall be arranged by the Company, and paid from energy and operational savings, with 100% of the savings above the guaranteed amount to be the sole property of tie Customer. Thera shall be no initial capital cost to tie Customer. 'The Customer, however, reserves he unconditional right to find alternate funding should It so desire during the term of this agreement. The design, acquisition, and Installation of energy measures should be structured so Uiat the energy savings, maintenance savings, and avoided capital expenditures achieved by tie installed energy measures aro suffsier7t:to cover the entire 100 percent (100%) of all project costs for the duration of tits Agreement, In accordance with. 489.145., Florida Statutes ('F,Si, as amended .Energy and maintenance savings must result through efficiency improvements designed to maintain existing or Improved performance levels. in the event Uiat the actual savings are less than tiro guaranteed savings, the Company shall provide cash reconciliation to the ♦fltnmt. 4 Customer of the difference between guaranteed and actual savings. If the actual savings are greater than tie guaranteed savings. the City will have complete ownership of any surplus savings. Thu Company's guarantee shall be a first party direct guarantee from the Company to Uie Customer. No third party guarantee, such as a non - contractor Insurance company, shalt be accepted. As set forth In Schedule E of the Supplemental Agreement, the Company may, if tire Customer meets the Company's credit criteria, provide the Customer the option of obtaining Company furnished finandng for installed ECOs, in which case the Customer shall compensate the Company for its Services with respect to such Installed ECOs by means of a monthly Service Charge for a period of time (the `Payback Period') agreed to by the Parties. if offered by the Company and requested by tie Customer, the terms and conditions of such Company furnished tnandng, Including the amount of the monthly Service Charge and term of tiie Payback Period, shall be agreed to by the Parties and set forth In a Schedule G (Payment Agreement) of the Supplemental Agreement, which, together with Exhibit A (Customer Consent) to such Payment Agreement, shalt be executed by the Customer and returned to the Company concurrently with the execution and return of Schedule E (Construction and Implementation Order) of tho Supplemental Agreement. The Customer acknowledges and agrees that the Company, with the Customer's written consent, may transfer or assign, for financing purposes, to one or more assignees, all or any part of the Company's right to receive payments under any Schedule G, and, In connection therewith, the Customer agrees, at the request of the Company or any assignee, to execute and deliver, to the extent permitted by applicable law, any and all consents, acknowledgments, following the Customer's written concurrence to such assignment, payment. Monthly payments shall be made to Uio Company or alternate financing entity, based solely upon energy savings, for the term of tills agreement. Such payments shall not exceed tho total energy and operational savings realized under thls.program for this agreement. • Report`s 'find Mohitoring. The _'Company.- shall_ piovtde the Customer with a nibasurer ientand veriBeatia plan that reflects -tie_ -....- . energy oUl'rzatiori by'IEre.occupants of'Ipte factltitos:levered .bythe: agreements. The plan shall Inctudce but not be limited io rogutae._ .... -viritten reports -to; nisei ure-irin verify -the shying provided by the ..C4rnpany'lo the Customer, and ariyaiidh all projected.savings. These savings guarantees shall be monitored at [east grtarte iy by the Company and he Customer, and reconciled In writing on an annual basis, commencing one year from the date of completion of Installation. .alit PttpIttd. Agreement Responsibility, The Company shall be required to assume total responsibility for all services offered In this Agreement, and shall be considered the prime contractor and the sole point of contact with regard to all contractual matters (including warranties (excluding extended warranties), maintenance covered under an FPL Maintenance agreement, and guarantee monitoring). 3.05 Construction and implementation Servtces Subject to the provisions of Section 3.02, the Company may employ one or more Implementation Contractors in the perfermance of Services under Schedule E, which Implementation Contractors shall be Um sole responsibility of the Company and shall have no direct contractual relationship with the Customer. in accordance with Schedule E, the Company and its Implementation Contractors shall (a) procure, construct and install all materials, equipment and systems required to Implement each ECO in accordanco with the Design Documents, (b) provide and pay for all labor and support services necessary to perform such work, (c) supply to the Customer copes of any operation and maintenance manuals available from the manufacturers, vendors and suppliers of equipment or systems comprising a part of any Installed ECO, (d) provide orosite hieing for a reasonable number of Uio Customer's designated operating personnel, If such !raining is reasonably required or necessary for the proper operation and maintenance of any complex equipment or system comprising a part of any installed ECO, and (e) arrange for the final Inspection and check-out of each tnslalfed ECO. In connection with training provided by the Company, Uie Customer shall make available training areas at the Customer's Service Locaton(s), iralntng alds and Customer's operating personnel during nomhal business hours, as set forth in Schedule E. (I) Company wilt hold harmless, defend and indemnify the customer from any claims, actions or demands of Implementation Contractors. Upon completion of construction and installation, the Parties shall conduct a final Infection of each installed ECO and if the work Is found to bo completed the! Customer shall execute and return to the Company a Schedu[a F (Certificate of Final Acceptance).` of- . the Supplemental Agreement, within twenty (20) days fallowing.,. receipt by the Customer of a notice of substantial conhpteton.... from the Company, if, upon inspection, the work is not found.:lar., be substanUally complete, or If any material defect ordo ctenoy exists, then the Customer shall so notify the Company as set forth In Schedule E and the Company shall perform any necessary corrections prior to the Customer executing and returning a Schedule F. The dato upon which the Customer ,film.ma+ 5 issues, or is deemed pursuant to Schedule E to issue, a Schedule F with respect to an ECO shall be referred to herein as the 'Final Acceptance Date' for such ECO. (g) The Company shall be responsible for compliance with ail appflcabte codes. statutes, and permitting requirements, All engineering, design, Installation, and construction work shall be dono by contractors properly licensed, certified, and bonded to perform such vrork in the State of Florida. 3,06 Energy Sav[nies Guarantee. Company has formulated and guaranteed the level of energy savings which will be achieved os a resell of the installation and operation of the Equipmont and provision of services provided for in this Agreement. The 'Energy Savings Guarantee' is set forth in Schedule C and in accordance with Exhibit 8 entitled `Standards of Comfort.' The energy savings guarantee shall provide sufficient cash flow for tho Customer to realize a minimum 10% level of savings, Any savings realized which exceeds the guaranteed amount shalt be and remain the sole property of the Customer, 3.07 Fees. The fees to be paid by the Customer for the Construction Phase of this Agreement shall be calculated as follows: Total Project Cost per Schedules G and E • Less FPL Rebates (FPL rebate ass[gned to Company as adjusted by FPL) equals Cost of Project to Customer Progress payments will bo made to Company per Progress Payment Schedule of Values provided In Schedule E. 3.08 Fees and Savings Actual energy savings achieved by Company shall be sufficient to cover the amount guaranteed, as adjusted by the baseline with respect to Company's services. 3.09 nog Informal -tort Procedure. Billing shall occur only after Um start of the Effective Dale as that term Is defined In the Recitals of this Agreement Payments due to Company shall be calculated each month during the Interim Period in the following manner. 3,09.E Company. shall submit' detailed invoices to the ..- • •Customerein care of the Contract Administrator. -The Gtfstomer:-.: "shall be'-afforded-.(30) .ddys to reeiewe edrnment,::epprove,: • • -payment of same, and pay .the Company. ... : .::.:: ....:.. 3.10 Fees for Maintenance, Equipment service and mafntehance • performed by the Company end referenced In S thedulo C will be payable In accordance with the Financial Cash Flow Analysis Annual .note elitpirtdi Service Cost Column. The amount duo will be the amount staled in year 1, and then escalated by the Consumer Price index with no cap. 3,11 Annual Review and Reconciliation, Within 60 days of the end of each hvetvo-month period, Company and Customer shall review the guaranteed and actual energy savings and any payments made by Customer, and shall determine the annual net savings and/or payment figures. In the event that actual savings aro less than the guaranteed savings, the Company will pay the shortfall to the Customer, In accordance with F.S. 480.145. Company shall make payments of any shortfalls to Customer within 45 days after the savings guarantee Is reconciled, Late payments shall accrue simple interest of twelve (12%) percent per antrum. 3,12 Vorlltcatton of Enemy Savings. If applicable, the Design Documents shall set forth appropriate systems and procedures for measuring and verifying the actual energy savings resulting front the fmplementaton of an ECO. At the Customer's request, the Company shall assist the Customer in measuring and verifying such energy savings vrith respect to each ECO following the Final Acceptance Date. The Company's compensation for such Services shall be included In the compensation to be paid to the Company pursuant to Schedule E. ARTICLE 4 WARRANTY 4.01 General Warranty. The Company warrants to the Customer that the Services performed by the Company under this Agreement and under any Supplemental Agreement shall be performed Vitt the degree of skill and care that Is required by current good and sound professional procedures and practices, and in conformance with generally accepted Industry standards prevailing at the Limo the Services are performed. The Company further warrants that all equipment and materials provided and Installed by the Company In connection with the implementation of any ECO hereunder shall be new, shall be free from significant defects in destgn, engineering, materials, • construction and workmanship, and shall conform in all material respects with all requirements of taw and the corttlact' warranties, the final Design Documents applicable to such ECO -.. and all descriptions set forth therein, applicable engineering and construction codes and standards, and all other requirements of thls Agreement and of the applicable Supplemental Agreement. 4.02 Equipment Warranty Company covenants and agrees that all equipment Installed as part of this Agreement is new, in ,firenama+ good and proper working condition and protected by appropriate written warranties covering all parts. Company further agrees to deliver to Customer for Inspection and approval all such written warranties; during the warranty period described in Section 4.03, to pursue rights and remedies against manufacturer and seller of tiro equipment under the warranties in the event of equipment malfunction or improper or defecUvo function, and defects in parts, workmanship and performance; to notify Customer whenever defects in equipment parts or performance occur which give rise to such rights and remedies and those rights and remedies aro exercised by Company. 4,03 Warranty Period. The warranty period for the warranties set forth in SecUon 4.01 shalt extend, vnllt respect to each Installed ECO, for a period of two (2) years following the substantial completion dale for such ECO. Tito warranty period for any Services performed by the Company hereunder or under any Supplemental Agreement which do not result In to installation or full Implementation of an ECO shalt extend for a period of one (1) year following the date of completion of such Services. 4,04 Romedios. The Customer shalt promptly notify the Company in writing of the discovery during tlhe applicable warranty pedod of any breach of the Company's warranties under Section 4,01, including any defects in the equipment or materials Installed as part of an ECO. As the Customer's solo and exclusive remedy for any such breach of the Company's warranties, the Company shall, at !Is own cost and expense, as soon as reasonably possible following the Company's receipt of notice of any breach of warranty or the Company's otherwise obtaining knowledge of any breach of warranty, perform any necessary servloas to correct any deficiencies and repalr or, if necessary, replace, rework and retest (If appropriate) defective equipment and construction vrorirmanship and/or provide at Uho Company's exponso any dhenges, modifications or additions to the work whtth are necessary due to a failure to perform any Seekes hereunder and furnish the equipment and matedats in accordance with the standards sot forth In Section 4.01. All costs. incidental to,the Companys reyforlc and,testtng thereof shall be boors by .the Company. The 'Compaq' shall pee roasohable efforts to porformsuch remedral;actlons andinake any, tests tit such a:manner., and al such.a time to as=to rrtlnlmfza disnipUon of normal Operations :at the. Customers_Serylee Location.. If:the.Company falls.to coacct.,, tlntdefeclivp.or:nonoonforrnieg%Nees or nnatertals wlrlhin a reaSanagle e'.e(ter _writteri.rio. front i1i9.Custerner, the. Customer may correct and, if necessary, retest the same at the Company's expense. 4.06 Vendor Warranties. Without limiting the Company's warranty set forth In. Section 4,01, the Company, in procuring materials and equipment for en ECO, shall use reasonable efforts to sntlt_Frlpirtds • obtain standard vendor warranties from the supplier or Implementation Contractor for the benefit of the Company and the Customer, and where practical shall attempt to obtain warranty periods of longer Hien one (1) year from the substantial acceptance date, if such extended warranty periods do not Increase the Company's procurement costs. Tho Customer shall be entitled to the benefit of any vendor or Implementation Contractor warranties obtained which are better or of longer duration than those provided by the Company hereunder. it any such warranties are for a period longer than the Company's warranties, they shall be transferred to the Customer al the end of the Company's warranty period hereunder, and the Company shall thereafter act, al the Customer's request and expense, as liaison for the Customer with such vendors or implementation Contractors In prosecuting any warranty claims. 4.06 Company Principally Responsible. Notwithstanding Section 4.04, the Company shalt have primary liability with respect to ail Company warranties set forth In Section 4.01, Induding warranties with respect to materials and equipment, whether or not any event or defect Is also covered by a vendor or implementation Contractor warranty, and the Customer need only look to the Company for corrective action pursuant to Section 4.03; provided that the Company shall recelvo the benefit of any vondor orImplementation Contractor warranties. 4.07 Warranty Exclusions. The liabilities and obligations of the Company under this Article 4 do not extend to any repairs, adjustments, alterations, replacements or maintenance which may be required as a result of wear and tear in the operation or use of an installed ECO, or as a result of the Customer's failure to operate or maintain an ECO in accordance with the operating manuals or instructions supplied by the Company, or In accordance with the training provided by the Company to Customer's personnel. 4.0e No Implied Warranties. Except as expressly provided In this article 4, the company makes no warranties or guarantees, express or Implied, concerning the services 'or any ECO, and the company disclaims any warranty Implied by agrees [hat any estimated savings, estimated toad reductions or other similar projections supplied or made by the company shall be for informational purposes ant}, and shall not constitute a warranty or guarantee by the company of the actual savings or fend reduction, if any, which may be experienced by the customer,. ARTICLE 5 STANDARDS OF COMFORT 5.01 Company shall melnlata the Equipment in a manner which will provide the standards of heating, cooling, hot water, and lighting es described In Exhibit S. ARTICLE 13 LIMITATION OF THE COMPANY'S LIABILITY - 6.01 No Onerattnq or Maintenance Responsibility. Except as oUherhvise specifically provided In Article 4, Ute Company shall have no responsibility or liability with respect to any ECO eller the substantial completion dale thereof, and the Customer shall be solely responsible for the operation, maintenance and utilization of each ECO after such date. Without limning the generality of the foregoing, no payment obligation of !he Customer hereunder, or under any Supplemental Agreement or Schedule, shalt be affected by the actual performance deny ECO following the Final Acceptance Date, and the Service Charge to bo paid by the Customer pursuant to Schedule G of any Supplemental Agreement shall not be measured or delemrined In any manner by the actual amount of energy savings or load reduction resulting from the implementation or operation of any ECO. 6.02 Consequential Damages. In no event shall the Company, its officers, directors, partners, shareholders, employees or affiliates, or any Implementation Contractor or Its employees or affiliates, be liable to the Customer for spedai, Indlrecl, exemplary, punilive or consequential damages of any nature whatsoever connected vrfth or rosultng_ from the Services or from performarir:e or poreporfomanco • of this AAroennent,.or atly.SupplementalAgreetnonl or Schedule;. Jnduding damages -or claims In the nature of lost revenue, Ineoriie.or • :Profits, toss of Use, .orcost of capltel,.irrespeotive of whether s ui t • damages are reasonably foreseeable end irrespective or whether law, Including implied warranties of merchantability ce fitness.. -such .clafrns-are based. ujwn:.negiigendo,_.sbict:IfalJlity,- eontrI; for a particular purpose and implied warranties of custom or.. - operation of lave or of henvise,. usage. The company makes no warranties or guarantees of - . • -- • - - any nature whatsoever concerning the actual reduction in the customer's energy usage as a result of the Installation and operation of any ECO, and the customer acknowledges and .riltnt.nt+ 7 6.03 Intent. Except in cases of willful nee -conduct, the Parties Intend that the waivers and disclaimers of liability, releases from liability, limitations and apportionments of liability, and exclusive rnsfeJnotrtd. remedy provisions expressed throughout this Agreement and in any Supplemental Agreement or Schedule shall apply even in the event of the fault, negligence (in whole or in part), strict liability or breach of contract of the person released or whose liability is waived, disclaimed, limited, apportioned or fixed by such remedy provision, and shall extend to such person's affiliates and to its and their partners, shareholders, directors, officers, employees, contractors and agents. The Parties also intend and agree Uha( such provisions shall continuo In full force and effect notwithstanding the termination, suspension, cancellation or rescJssien of this Agreement, any Supplemental Agreement, Schedule or any otter agreement entered Into pursuant hereto. No officer, director, employee, agent or other individual representative of either Party shall be personally responsible for any liability arising under this Agreement or any Supplemental Agreement or Schedule. 6.04 Remedios. Where remedies are expressly afforded by this Agreement or any Supplemental Agreement or Schedule with respect to the Services provided by the Cornpany, such remedies are Intended by the Parties to be the solo and exclusive remedies of the Customer for the award of damages from the Company arising out of or In connection with the Services or this Agreement, Tho parties reserve any remedy otherwise available at law or In equity, Including, without limitation, the ability to enforce Uho torahs of the agreement such as specific performance or to seek reformation or rescission of this agreement, as warranted and as allowed by laws of the State of Florida. ARTICLE 7 ACCESS AND INFORMATION 7.01 Access to Service Locations, Upon the request of tho Company, the Customer shall provide the Company and Its Implementation Contactors with reasonable access to the Service LocaUon(s) to enable the Cornpany to perform all Services hereunder and under any Supplemental Agreemen( and to verify and confirm the oporaUon of any Installed' ECO following the Final Acceptance Date. The Company also shall have access to the Service Locallon(s) during the warranty period specified In Article 4 for purposes of perforining._I{s... obligations thereunder. The Customer shalt provide -the Company with storage and (aydown areas at the Service LocaUon(s), as applicable, during the lnstallaUon of ECOs and shall make available any construction power and other utilities required by the Company and Its Implementation Contractors to perform the Services. Tho Company and Rs (mpiementaton Contactors shall observe all of the Customer's safety and security procedures at the Service Location(s), to the extent made known to the Company, and shalt not unreasonably •M1lensme.4 8 disturb or interrupt Ike Customer's operations al such location(s). 7.02 Information. The Customer shall promptly comply with all reasonable requests by the Company for information concerning the Service LoceUon(s), as required by the Company to perform the Services, and Information to enable Uhe Company to determine the actual energy savings and toad reduction achieved al the Service Location(s) as a resell of ECO Implementation. The Customer also shall provide the Company with any information and other assistance reasonably required to verify to the Florida Public Service Commission (the `Commission`) the demand and energy savings achieved and the related costs thereof. The Customer agrees that the Company may disclose such information obtained by the Company or provided by the Customer pursuant to this Agreement or any Supplemental Agreement to the Commission and to any other public authority having jurisdiction. ARTICLE 8 DOCUMENTS AND DATA 8,01 Ownership Rights. My Audit Report, Feasibility Study, Design Document or other report or document fumished or to be furnished by the Company pursuant to this Agreement or any Supplemental Agreement shall become the property of the Customer, upon payment, and may be used by the Customer for the operation, maintenance, repair or alferaUon of any ECO Installed by the Company. Notwithstanding the foregoing, the Customer shall not acquire any rights or Interest with respect to who Company's or Its tmplemon(eUon Contractors' proprietary technology, processes or computer software that may be used in connection with the Services or the supply of equipment and materials hereunder. 8.02 Use of Documents After Tormfna(loq, If any Supplemental Agreement .er Schedule is terminated, Irh whole or In part, by the Customer prior to completion of the installation of any ECO, or the Customer chooses not to proceed with the implementation of an ECO as set fork') herein, then the Customer shall. be entitled to use .:for its .own purposes tiny Audit Report, Foasibitit•Study, Design Pommel or_otheedocuments furnished by the_ Company hereunder, .upon payment of the Company, .. .. • . .. ARTICLE 9 - INSURANCE 9,01 Insurance to be Maintainer[ by the Company. At any Umo that the Company Is perfomtng Services under Iles Agreement or under any Supplemental Agreement at any Customer Service Location, the Company shall keep and maintain, with Insurers of recognized responsibility, Um following Insurance, which shall Include the minimum coverages and limits set forth below: ril,td_Pregrred� 9.01-1 Worker's Compensation Insurance covering all of the Company's employees as required by law, with an amount not fess than $500,000 per occurrence. 9.01.2 Commercial General Liability Insuranco, including contractual liability, premises and operations, broad -form property damage, productslcompfeted operations, independent contractor, and personal Injury coverages, with a limit of not less than $2,000,000 for each occurrence, combined single limit; and 9,01.3 Comprehensive Automobile Liability Insurance, including coverage for liability arising out of the use of owned, noreownod, leased or hired automobiles, for both bodily Injury and property damage in accordance with slate legal requirements, having not less than $2,000,000 combined single limit per occurrence. 9.01-e Professional Liability -- minimum of $1,000,000 Combined Single Unit per claim, vriUi a $2,000,000 General Aggregate limit. insurance poIc1os to be carried under this agreement shall not be materially changed or oancelted, without thirty (30) days prior written notification to the Customer. 9.02 Polley Requirements, Any Insurance carried by the Customer eAth respect to the Services of the Company shall bo deemed to be excess and not contributory insurance, and the Company's Insurance to be provided hereunder shall be primary to the Customer's coverage for alf purposes, despite any conflicting provisions in the polices to (he contrary, No policy maintained by the Company hereunder shall be subject to cancellation or reduction in coverage or amount, except upon thirty (30) days prior written notice thereof (ten (10) days for. non-payment of premiums) to the Customer al its address set forts in Section 18,01, The Companyshall provide proof of coverage to the Customer with fospect. to the fnsurarico • required to be maintained hereunder. at any time upon Uie' Customer's request 0.03 tmptomentation Contractor Insurance. The Company shall require such liability Insurance of its Implementation Contractors performtng services at a Service Location as shall bo reasonable and In accordance with Industry practices In relation to the work or other items being provided by each such implementation Contractor. Upon the Customer's request, the Company shall provide the Customer evidence of the insuranco coverages carried by any Implementation Contractor. 9.04 Self -Insurance The Company reserves the right to soil - Insure any obligations of Article 9. ARTICLE 10 INDEMNIFICATION 10.01 The Company shall Indemnify and hold harmless the Customer and its officers, employees, agents and instrumentalities from any and all liability, losses or damages, Including attorneys' fees and costs of defense, which the Customer or Its officers, employees, agents or Instrumentalities may incur as a result of claims, demands, suits, causes of actions or proceedings of any kind or nature arising out of, relating to or resulting front the performance of this Agreement by the Company or Its employees, agents, servants, partners principals or subcontractors, except and solely to the extent such injury, death, or damage Is nol caused by the Customer. Company shall pay all claims and losses In connection therewith and shall investigate and defend all claims, sults or actions of any kind or nature fn the name of the Customer, where applicabie, including appellate proceedings, and shalt pay all costs, Judgments, and altomey's fees which may issue thereon.. Company expressly understands and agrees that any Insurance protection required by this Agreement or othon'rise provided by Company shall In no way limit the responsibility to indemnify, keep and save harmless and defend the Customer or ifs officers, employees, agents and Instrumentalities as herein provided, The Customer does hereby agroo to indemnify and hold harmless the Company to the extent and within the !Imitations of Sedan 768.28 Florida Statute, subject to the provisions of that Statute whereby the Customer shall not be held liable to pay a personal injury or property damage claim or Judgment by any one person which exceeds the sum of $100,000, or any claim or judgments or • portions thereof, which, when -totaled• with elf other occurrence, exceeds the sum of$200,000 from any and all personal injury or property damage cairns, liabilities, losses and causes of action which mai( arise solely as ;a result of the negligence .of the Customer. However, nothing herein shall bo deemed to indemnify .the Company.from any liability or claim arlsfng out of the negligent performance or failure of. performance of the Company or any unrelated third party. 10.02 Survival. The obligations of the respective Parties under (his Article 10 shall survive the termination of the Agreement or of any d'le"'n-' 9 dale„ Arapr red' Supplemental Agreement with respect to any claims or liability arising prior to such termination ARTICLE 11 HAZARDOUS MATERIALS 11.01 The Customer shall have sole responsibility and liability with respect to the proper identification, removal and disposal of any hazardous materials (e.g., asbostos) or correction of any hazardous condition at a Service Location which affects the Company's performance of lite Services hereunder or under any Supplemental Agreement. If, during the course of performing the Services, the Company becomes avraro of any such hazardous materials or hazardous condillon, the Company shall report such matter to the Customer Immediately and before disturbing (or further disturbing) such materials or condition, Work In the affected areas shall be resumed by the Company only upon the written direction of the Customer, when such materials have been removed or such condition has been corrected, and then only if such continuation of work shall not violate any applicable law or permit, ARTICLE 12 PASSAGE OF TITLE, APPROPRIATIONS, WARRANTY OF TITLE, CUSTOMER INSURANCE AND TAXES. and vest in Use Customer as sot forth in Section 12.01 free and clear of all liens, claims, charges, security Interests, encumbrances and rights of other parties arising as a result of the actions or failure to act of the Company, Its tmpiemenlation Contractors, or their employees. 12.04 Customer Insurance. During and throughout the term of this Agreement, the Customer agrees, to provide a certificate of self- insurance coverage issued by its Risk Manager. Such certificates shall provide at least 30 days prier written notice of cancellation. 12,05 Taxes. The Company shall be resonate for Uie payment of any required taxes or fees associated with ills agreement. The Company shall pay any sales and use taxes Imposed on the ECOs prior to the Company's delivery or Installation of the ECOs, as required by applicable law, subject to any sales and use tax exemptions available to the Company and Use Customer, ARTICLE 13 FORCE MAJEURE 13.01 Neither Use Company nor the Customer shall be considered to be In default In the performance of Its obligations under this Agreement or under any Supplemental Agreement or Schedule, except obligations to make payments with respect to amounts already accrued, to the extent that performance of any such obligation is prevented or delayed by any cause, existing or future, which Is beyond the reasonable control of, and not a result of the 12.01 Passage of Trite. Legal title to each lnstalled ECO, fault or negligence of, the affected Party (a 'Force Majeure Event'). Including all equipment and materials comprising a part thereof, if a Party Is prevented or delayed In the performance of any such shall pass to the Customer upon the Final Acceptance Delo for obligation by a Force Ma;oure Event, such Party shall Immediately the ECO. Notwithstanding tho foregoing, the Customer shall provide notice to rho otter Party of to circumstances preventing or boar all risk of foss or damage of any kind with respect to all or delaying performance and the expected duration thereof. Such any part of an ECO located at a Service Location, whether notice shall be oontrmed In writing as soon as reasonably possibio. Installed or nol, and the Customer shall indemnify and pay the The Party so affected by a Force Mafeure Event shall endeavor, to Company for the repair or replacement of any ECO or the extent reasonable, to remove the obstados which prevent component thereof stolen, lost, destroyed or damaged at a performance and shall resume performance of Its obttgations as soon Service Location, unless such toss or damage Is directly caused as reasonably practicable. by the Company or an Implementation Contractor retained by-.. . the Company. Loss or damage to an ECO directly caused by ARTICLE 1 4 CHANGES the Company or Its fmptemonlation Contractor shall be the,. _ _ . . responsibility of the Company. _ . • 14,01 The .Customer shall have his right te'reque'st changosln 12,02 Appropriations, Slrbject 10 the laws concentirig`•: Sorjcos-{each, a'Cftange'), 6e isisOng of modifca)ons or addtforh1, 'r municipal budgets and appropriations the Customer pronhisos t4 Io, or deteUcns from, any worn to be performed -of materials'fo-be- pro • fund payments to tho Company under this agreement. vided by the Company pursuant to 'this Agreement, or -any Supplemental Agreement or Schedule thereto, A Change also may 12.03 Warranty of Title. The Company warrants good title to all ECOs and components thereof furnished or installed by the Company or Its Implementation Contractors, and the Company warrants that tiro to such ECOs and components shall pass to •Aleeeme+ 10 result from any failure of the Customer, or Its representatives or agents, to fulfill its obligations hereunder, which failure materially adversely affects the Companys cost, ac hedute or performance under this Agreement or any Supplemental Agreement or Schedule. Should any Change cause an Increase or decrease In the cost of or e➢aIe_Prep i ride lime required for the Company's performance, or otherwise affect any provision of this Agreement or any Supplemental Agreement or Schedule, an equitable adjustment shall be made to the Company's compensation and any other provision of this Agreement or of any Supplemental Agreement or Schedule which Is thereby affected, by mutual agreement of the Parties. Tho Company shall not be obligated to proceed with or perform any Change requested by the Customer hereunder until the Parties have agreed is writing upon any such adjustments resulting from the Change. Except to the extent a Change specifically results in an amendment or adjustment to one or moro provisions of this Agreement or of any Supplemental Agreement or Schedule, VI provisions hereof and (hereof shall apply to all Changes, and no Change shalt be implied as a result of any other Change. ARTICLE 15 TERMINATION AND DEFAULT 16.01 Termination for Convenience. Either Party may terminate this Agreement or any Supplemental Agreement, in Its sole discretion, at any time, without further liability, upon ten (10) days prior written notice to the other Party; provided, )however, (hat such termination shall not apply with respect to any Services or work of the Company previously ordered by Um Customer under a Supplemental Agreement Schedule entered Into by the Parties on or prior to the temfnston date. With respect to any such previously ordered Services or work, including any previously implemented ECO or ECO under implementation, this Agreement and the applicable Supplemental Agreement and Schedules entered Into thereunder, shall remain in full force and effect in accordance with their terms, unless the Parties specifically agree In writing to the contrary. 15.02 Termination for Cause 15.02-1 Termination by Customer for Company Default. The Customer shalt have the right to lormfnato tits . .:- Agreement and any Supplemental Agreement for cause if (a) any proceeding is Instituted against tho Company a. seeking to adjudicate the Company as bankrupt or..••... Insolvent, or If the Company makes a general assignment for the benefit of its creditors, or If a recelver Is appointed on • account of tho insolvency of the Company, or if the Company files a petition seeking to take advantage of any other law rotating to bankruptcy, Insolvency, reorganization, winding up or composition or readjustment of debts and, In Uie case of any such proceeding Instituted against the Company (but not by the Company) such proceeding is not dismissed within sixty (60) days of such filing, or (b) the Company substantially faits to perform its obligations hereunder or under any Supplemental Agreement; provided, In the case of clause (b), that the Customer first has given the Company fifteen (15) days written notice of default of any payment obligation or thirty (30) days written notice of any other default, and the Company has failed to cure the default (or, if the nonpayment default cannot be cured r'iilhin thirty (30) days, the Company has not commenced the cure within that period and diligently proceeds therewith). In the case of such a termination by the Customer, to the extent that the reasonable and necessary costs of completing any Services previously ordered by the Customer hereunder or under any Supplemental Agreement or Schedule, Including compensation for obtaining a replacement contractor or for obtaining additional professional services required as a consequent o of rho Company's breach, exceed those costs which would have boon payable to the Company but for the Company's breach, the Company shall pay the difference to the Customer. The Company, In tom, shall bo entitled to be pald an amount (to the extent not already paid) equal to the sum of all of Its reasonable costs Incurred In performing the Services up to the termination date, Including aft costs incurred with respect to any Implementation Contractors; provided that the Company makes available to the Customer all of the vrorlc product, equipment and materials produced or obtained by the Company In performing such Services. Notwithstanding the foregoing and notwithstanding any other provisions set forth herein or In any Supplemental Agreement or Steduie to the contrary, such a termination by tho Customer shaft not affect or diminish In any way any liability already incurred by the Customer pursuant to any Schedule G (Payment Agreement) already entered Into by the Customer prior to the termination date, and each such Schedule 0 shall remain in full force and effect 15.02-2 Termination by the Company for Customer Default. The -Company'shall,bavo-the right to- terminate this Agreement aed.any Supplemental.Agroemenl for.causa if (a) tie Caslomer .makes- a general .assignment. for. the benefit -• of. is • creditors; or_if- a recelvef is -'.appointed• on. -account of.fhe Insolvency of -.the: Customer; .or•,.lf. the ,Customer files a pellto_ n, seeking .to —lake -advantage:..of any '•other •law relating.. to bankruptcy, *insolvency, 'reorganization,winding up ..or composition of or readjusUhient of debts and, In the case of any such proceeding instituted against the Customer (but not by the Customer) such proceeding is not dismissed within sixty (60) days of such filing, or (b) If the Customer substanUally falls to 4.1114n1aM 1 •®rtr trepared* perform its obligations hereunder or under any Supplemental Agreenent, including any payment obligation; provided, in the case of clause (b), that the Company first has given fifteen (15) days written notice of default of any payment obligation or thirty (30) days written notice of any other default, and the Customer has failed to cure the default (or, if Uie nonpayment default cannot be cured within thirty (30) days, has not commenced the cure within that period and diligently proceeds therewith). In the event of such a termination by the Company, the Company shall be entitled, as lis sole remedy, to be paid an amount equal to the sum of (i) all amounts due and payable and not already paid under any Supplemental Agreement or Schedule for Services performed by the Company prior to the termination date, (11) an amount equal to the sum of all of the Company's reasonable costs and expenses incurred In performing Services up to the termination date, to the extent the Company's compensation for such Services is not Included in the amounts set forth In clause (i) of the foregoing, and (iii) all of the Company's reasonable costs and expenses of termination, Including cancellation charges and demobilization costs assessed against the Company by Its Implementation Contractors. Notwithstanding the foregoing and notwithstanding any other provisions set forth herein or In any Supplemental Agreement or Schedule to the contrary, such a termination by the Company shall not in itself affect or diminish in any way any liability already incurred by Ute Customer pursuant to any Schedule G (Payment Agreement) already entered Into by the Customer prior to the termination date, and each such Schedule G shall remain in full force and effect. 15.02.3 Payment. All amounts payable by either Party pursuant to this Section 15.02.3 shall be due within thirty (30) days following the submission by the other Party of an !nvoloo therefore, which invoice shall Indudo..en itemization of casts with respect to any amounts measured. on the basis of reimbursable costs. Such reimbursable - costs also shall be subject to audit by the other Party, at the. other Party's expense upon reasonable advance notice; provide¢ that such audit shalt be completed vain sixty (00) days following the submission of tiro Invoice. Amounts not. paid by either Party to the other when duo hereunder shall bear Interest, from the date payment was due to and including the date of payment at a rate equal to the lesser of one percent (1%) per month, or the maximum rate permitted by app►toable taw (the 'Delayed Payment Rato'). ARTICLE 16 DISPUTES rfatnrmu 16,01 Resolution by Arbitration. Any controversy, dispute or claim between the Parties arising out of or relating to this Agreement, or any Supplemental Agreement or Sdtedute, or the breach thereof, which the Parties are unable to resolve by consultation and negotiation shall be submitted to arbitration and shall be settled by arbitration In accordance with the Commercial Arbitration Rules (the 'Rules') of the American Arbitratidn Association ('AAA') then in effect and the provisions of this Article. No sult at law which seeks to resolve any controversy, dispute or claim between the Parties shall be instituted by otther Party, except where such suit Is Instituted to appeal or confirm an arbltratioo award rendered pursuant to this Article 15. My controversy, dispute or dotal submitted to arbitration shall be settled by arbitration In Miami, Florida, unless otherwise agreed by the Parties. Florida Law shall apply to Resolution by arbitraUon. Any award entered pursuant to such arbilraUon shah! be binding on both Parties, and judgment upon the award rendered or received may be entered in a court of competent jurisdiction in the State of Florida, Exclusive jurisdiction for the entry of judgment on any arbitration award relative to any controversy or claim between the Parties shall lie In any court of appropriate subject matter jurisdiction located In Florida, and the Parties hereby expressly subject themselves to the personal Jurisdiction of said court for entry of any such judgment and for the resolution of any dispute, action, or suit arising In connection with the entry of such judgment. . 10,02 Arbitration Proceeding. The controversy, dispute or calm to be arbitrated shall be referred to one (1) arbitrator to be selected by the Parties by altematety striking from a list of nine (9) arbitrators provided by the AAA. All decisions and awards shalt be made by tho arbitrator in writing. After a noUoo of demand for arbitration has been filed in accordance with the Rules, the Parties may, to the extent permitted by the Rules, make discovery of any matter relevant to such dispute before the hearing. Any costs associated with arbitration under this Article 15, Including but not tint►ted to attorneys fees and warless 'expenses, shall be paid by the Party originally incurring the costs and the costs of the arbitrator shall be shared equally by Uhe ParUos. 1.6..03 Pondoncv of Dispute. The codstence of any 'dispute, controversy or claim- under thls Agreement, or any Sripplom.Gntel AgreeniethLor Schedule, olio pendency of Um dispiRe or • ,resolution procedures set forth herein shall not [II and of themselves '. rel!evo or excuse either Party from its ongoing duties and obilgatoris thereunder or thereunder. 12 f1/4RT1CLE 17 ASSIGNMENT 17.01 Agreement Binding. This Agreement end each Supplemenlel Agreement entered into by the Parties shall bo binding ❑LSt Petpireds upon, and shall inure to the benefit of, the Parties and their successors and permitted assigns. 17,02 Permitted Assignment. (a) Company may, with notice to and consent of Cuslomer, which consent may not be unreasonably vtithheld, but acknowledging that the Agreement is considered to be unique in nature to the abilities of the Company, delegate Its duties and Its performance under this Agreement, andfor utilize contractors, provided that any assignee(s), designee(s), or contractors) shall honor the terms of this Agreement and shalt so bind 11soil. The Customer, at Its sole discretion, may require that such assignees, designees, or the like, sign assignment and assumption agreements satisfactory to the Customer, 17.03 No Third Party Beneficiaries, Except as otherwise expressly provided herein, neither this Agreement nor any Supplemental Agreement or Schedule, nor any term or provision hereof or thereof, shall bo construed as being for the benefit of any party not a signatory hereto. ARTICLE 18 NOTICES 10.01 In Writing. All notices, demands, offers or other written communications required or peermitted to be given pursuant to this Agreement, or any Supplemental Agreement or Schedule, shalt be in writing signed by the Party giving such notice and shall be mailed by U.S, Ma€i, postage prepaid, cantered or faxed as follows: If to the Company: FPL 700 Universe Blvd. Juno Beach, FL 33408.0420 Fax: (561) 691-7305 Tel,: (954) 691-7087 Attention: General Counsel if to the Customer: City of Miami Department of Capital Improvements 444 S.W. 2 Ave., 8h Floor Miami, FLFIFLFL 33130 Fax: (305) 418.2153 Tel: (305} 416-1287 Attention: Deputy Director rl)lenawe+ • 13 Each Party shall have the right to change the place to which notices shall be sent or delivered or to spedfy one additional address to which copies of notices may be sent, In either case by similar notice sent or delivered in like manner to the other Party, 18.02 Timing of Receipt. Notices delivered by mall shall be deemed received three (3) working days after the date of the postmark, and notices delivered by overnight courier shall be deemed received on the date when left at the address of the recipient. Notices sent by fax shall be effective the date faxed, if a working day, or the following working day otherwise; provided that all faxes shall be confirmed by follow-up mail within three (3) working days. ARTICLE 19 GENERAL PROVISIONS 19.01 Entire A9roomont. This Agreement, including the Exhibits and Schedules atlaehed hereto, sets forth the hill and complete understanding of the Part€os relating to the subject matter hereof as of the Effective Dale, and supersedes any and all negotiations, agreements and representations made or dated prior hereto with respect to the subject matter of this Agreement. Any actions er Services described in Uits Agreement which were perfomied or Implemented by the Parties prior to the Effective Date shalt for all purposes be deemed to have been performed under this Agreement. 10.02 Amendments, No change, amendment or modification of thls Agreement or any Supplemental Agreement or Schedule thereto shall be valid or binding upon the Parties unless such change, amendment or modification shall be in writing and duly executed by both Parties, 19.03 Status of the Parties. The Company and Its implementation Contractors shall be independent contractors with respect- to the Services performed hereunder and under any Supplemental Agreement or Schedule, irrespective of whether such Implementation Contractors are approved by Uie Customer, and neither the Cempary n©r €ts ImpieMentblion"Contractors; rior the employees sh&t-' be deem''d to be the employees, representatives or agents of the Customer. Nothing In this Agreement or any Sd itementalAreeriient 'or'Schedufe''shatt°: Eta eonslru d- as- - trioensisterit-.With .the :foregoing Independent contractor status or relationship; er as creating or ir}iptying any partnership, joint venture, trust or other relationship between Uie Company and the Customer, 19.04 Customer. The Customer hereby represents and warrants to Uie Company that (a) Uie execution end delivery by the Customer of this Agreement and the performance of Rs obligations hereunder rDaie„ Pttptred, have been duly authorized by all requisite actions and proceedings; are not inconsistent with and do not and will not contravene any provisions of the Customer's organizational documents or any applicable law, rule or regulation; have been approved by all necessary persons or entities; and do not and wall not conflict with or cause any breach or default under any agreement or instrument to which the Customer is a party or by which it or any of its properties is bound; and (b) this Agreement has been duty executed and delivered by the Customer and constitutes the valid and legally binding obligation of the Customer, enforceable against the Customer in accordance with Rs terms, except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or slmltar laws and subject to general equitable principles. 19.05 Company. The Company hereby represents and warrants to the Customer that (a) the exec uUon and delivery by the Company of this Agreement and the peiformance of Its obligations hereunder have been duly authorized by all requisite actions and proceedings by all requisite actions and proceedings, do not and wall not contravene any provisions of the Company's organizational documents or any applicable taw, rule or regulation, do not and will not require any consent of any person or entity which has not already been obtained and do not and will not conflict with or cause any breach or default under any agreement or instrument to which the Company Is a party or by which Rot any of its properties is bound, and (b) this Agreement has been duly executed and delivered by the Company and constitutes the valid and legally btndtng obligation of the Company, enforceable against tie Company In accordance with its terms, except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws and subject to general equitable pmdples. 19.06 Drafting Internretatfons and Costs. Preparation and negotiation of this Agreement has been a joint effort of the Parties and the resulting document shall not be construed more severely against one of the Parties than against the other. Each Party shall be responsible faits own costs, Including legal fees, Incurred In negotiating and ii alizing this Agreement and any Supplemental Agreement or Schedule. 19.07 Captions. The captions contained in this Agreement or fn any Supplemental Agreement or Schedule are for convenience and reference only and in no way define, describe, extend or limit the soope or intent of such document or the Intent of any provision contained therein. dilenamta 14 19.08 SeverabilityiDtvlsible Contracts (a) The invalidity of one or more phrases, sentences, clauses, Sections or Artidcs contained in this Agreement or any Supplemental Agreement or Schedule shall not affect tho validity of the remaining portions thereof so long as the material purposes of such document can be determined and effectuated. (b) From lime to time the Company and the Customer may enter into one or more supplements, schedules, or payment agreements related to the subject matter of thls Agreement. Each such supplement, schedule, or payment agreement shall constitute a separate and divisible contract wthich the Company may assign to one.or more assignees, In wrhole or In part, and each and every such assignee of tho Company shall be entitled to the benefits and rights of the Company under this Agreement, and shall be entitled to exercise the rights of the Company under this Agreement. No assignee shall be responsible for any obligations of the Company except as expressly assumed in writing by such asstgneo In accordance with the temps and conditions of Section 17.02. 19.00 Further Assurances. The Company and the Customer each agree to do such other and further acts and things, and to execute and deliver such additional instruments and documents, as either Party may reasonably request from time to time whether at or after the execution of this Agreement, In furtherance of the express provisions of this Agreement. 19.10 Apnticablo Law. This Agreement and each Supplemental Agreement and Schedule thereof, shall be governed by, construed and enforced In accordance with the laws of the State of Florida, exclusive of conflicts of laws provlstons. 19.11 Counterparts. This Agreement and any Supplemental Agreement or Schedule may be signed In any number of counterparts and each counterpart shall represent a fully executed original as If signed by both Parties. 19.12 No Waiver. The failure of n Party to enforce, insist updh, dt comply with any of the terms, conditions or covenants of this Agreement or any Supplemental Agreement or Schedule, or a Partys waiver of the same In any Instance or instances shall not be • construed as a general waiver or relinquishment of any such ierms; conditions or covenants, but the same shall be .and remotn atal limes in full force and effect. 19.13 No Discrimination, Company shall nol unlawfully discriminate in providing its services under iris agreement, 19.14 ADA Clause. In the course of providing any work, labor or services funded by the City, Company (or Its agents and representatives, as applicable) shalt affirmatively comply with all applicable provisions of the Americans with Disabilities Act ("ADA), including Titles l & II of the ADA regarding non•discdminalion on the basis of disability, and related regulations, guidelines and IN WITNESS WHEREOF, the Parties hereto have executed this standards as appropriate. Additionally, Company wilt lake Agreement by and through their duly authorized representatives as affirmative steps to ensure non•discimination in employment of of the Effective Date. disabled persons. THE COMPANY: 19.15 OSHA If applicable, the Company will atlow Customer Inspectors, agents or other representatives to monitor Company (or Its agents or representatives) for compliance with safety precautions as required by federal, slate or lacer laws, ruins, regulations, codes and ordinances. By performing those inspections the Customer, its agents or By: representatives are not assuming any liability under the laws, rules, regulations, codes or ordinances. The Company shalt have shall have no recourse from the occurrence or non- occurrence or results of such Inspecuon(s). Upon Issuance of a notice to proceed or following the effective date Iho Attest: consultant shall contact Risk Management at (305) 416.1700 to verify inspection scheduling. Florida Power and Light Company -Dennis-Brand (.rl/Le3e.9A-r cd- /4,44.c..-er3 Its; Authorized Corporate Officer 19.16 Order of Precedence. If there Is a confltotpl Corpo between or among the provisions of this Agreement, the order (Affix Corporate Seal) of precedence Is as follows: 19.16-1 These terms and conditions 19.16.2 The Work Order 19.19.3 The Scope of Services 19.16-4 The City RFQ and any applicable BY' addenda 19.16-5 The Company's Proposal THE CUSTOMER: City of .1: mi, a Florid ofa Its: Cit j tanager ANSI: Priscilla Thompson, City Clark .::1nslitanco ap orled.l ( /►:�Y,t� Dania Carrillo;;4.Mnlsriatb� . • • RlskManagernent•Departnienl • ---- Approved as to Legal Fo Jorge L. Fernandez, Ily •f Ilatmt• D i r iCt Prepared• City of Miami Legislation Resolution: R-10-0455 City Hall 3500 Pan American Drive Miami, FL 33133 www.miamigov.com File Number: 10-00977 Final Action Date:10/14/2010 A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT, IN SUBSTANTIALLY THE ATTACHED 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 NO. 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. 04-0620, adopted September 23, 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 under the 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 ("ECMs") 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 City of Miami Page 1 of 2 File Id: 10-00977 (Version: 1) Printed On: 11/3/2017 File Number: 10-00977 Enactment Number: R-10-0455 WHEREAS, all EECBG funds must by obligated by April 12, 2011 and expended by October 12, 2012; NOW, 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 perform 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} 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. City of Miami Page 2 of 2 File Id: 10-00977 (Version: 1) Printed On: 11/3/2017 ASSIGNMENT AND ASSUMPTION AGREEMENT This ASSIGNMENT AND ASSUMPTION AGREEMENT (the "Agreement') is dated as of this 3rd day of August 2010 and is entered into by and between Florida Power & Light Company, a Florida corporation ("Assignor"), FPL Services, LLC, a Florida limited liability company (the "Assignee"), and City of Miami, a Florida Municipal Corporation ("Customer"). RECITALS: A. WHEREAS, Assignor and Customer entered into a MASTER AGREEMENT FOR DEMAND SIDE MANAGEMENT AND ENERGY EFFICIENCY SERVICES, effective December 7, 2004 (the "Agreement"); and B. WHEREAS, Assignor has agreed to assign all of its rights and obligations under the Agreement to Assignee and Assignee has agreed to accept and assume from Assignor such rights and obligations; and C. WHEREAS, Customer consents to the assignment from Assignor to Assignee. AGREEMENT: NOW THEREFORE, the parties hereby agree as follows: 1. The Assignor hereby assigns, transfers, conveys and sets over to the Assignee, all right, title and interest of the Assignor in the rights under the Agreement (collectively, the "Assigned Rights"). The Assignor hereby delegates, transfers, conveys and sets over to the Assignee all duties, liabilities and obligations under the Agreement (collectively, the "Delegated Duties"). 2. The Assignee hereby unconditionally acquires, assumes and accepts the Assigned Rights and the Delegated Duties. 3. The provisions of this Agreement are for the exclusive benefit of the parties hereto and no other party (including without limitation any creditor of any party hereto) shall have any right or claim against any party hereto by reason of those provisions or be entitled to enforce any of those provisions against any party hereto. 4. This Agreement shall be governed by and construed in accordance with the substantive laws of the State of Florida, without regard to its conflict of laws rules. 5. This Agreement shall inure to the benefit of and be legally binding upon all successors and assigns of the parties hereto. b. No amendment or modification of this Agreement shall be effective unless made in writing and signed by the parties hereto. 1 7. If any provision of this Agreement is held to be illegal, invalid, or unenforceable under present or future laws, such provision shall be fully severable; this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part of the Agreement; and the remaining provisions of the Agreement shall remain in fall force and effect and shall not be affected by the illegal, invalid, or unenforceable provision or by its severance from the Agreement. Furthermore, in Lieu of such illegal, invalid or unenforceable provision, there shall be added automatically as a part of this Agreement a provision as similar in its terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable. S. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 9. This Agreement constitutes the entire 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. IN WITNESS WHEREOF, the Assignor and the Assignee have each caused their duly authorized representative to execute this Agreement where indicated below. [Signatures on following page] 2 Assignor: Florida Power & Light Cornpa By: Name: Sam Forrest Title: VP Energy Marketing & Trading Y Assignee: FPL Services, LLC By: Name: Greg Hanlon Title: VP & GM FPL Services D J B 044_4- o: Customer: City of Miami, a Florida Municipal Corporation By: See G',-4G &l Name: Title: 3 ASSIGNMENT AND ASSUMPTION AGREEMENT WITH FLORIDA POWER AND LIGHT COMPANY AND FPL SERVICES, LLC CITY OF MIAMI, a municipal Corporation of the State of Florida 1.1/ CARLerS A. MIGOYA CITY MANAGER ATTEST: PRISCILLA A. T CITY CLERK REQUIREMENTS d GARY RE HEFSK , INTERIM 7ULIE 0. DIRECTO I CITY ATTORNEY RISK MANAGEMENT ( APPROVED AS 'TO I AURANCE APPROVED AS TO LEGAL FORM AND CORRECTNESS SUPPLEMENTAL AGREEMENT NO. 1 SCHEDULE A DESIGNATION OF SERVICE LOCATIONS Pursutq to Supplemental Agreement No, 1 dated as off\- day of IJ ovciety , 2010, between FPL Services, LLC (the 'Company") and City of Miami (the "Customer") (the "Supplemental Agreement"), the Customer hereby designates the following Service Location(s) of the Customer for purposes of Services to be provided by the Company pursuant to the Supplemental Agreement: City Hall, 3500 Pan American Drive Police N District Substantiation, 1050 NW 62nd Street Manuel Artime Comm. Ctr. 970 SW 13, Street Police S District Substation, 2200 W Ftagler Street Fire -Rescue Station #1, 144 NE 5,h Street Manuel Artime Comm Center Theater, 900 SW 1st Street Executed this 1.5 day of 1\) c,Jcr".10 Cy , 2010 by: THE CUSTOMER: City of Miami Carlos A, Migoya ,, City Manager ��` f Approved as to insurance requirements: i N. 7 Gary Reshefsky( Interim Director Risk Management Division, a Scheduli_A_Name» 1 l \ 1 Attest: Priscilla A. Thompson City Clerk Approved as to legal form and correctness: Julie O. City Attorne SUPPLEMENTAL AGREEMENT NO. 1 SCHEDULE E CONSTRUCTION AND IMPLEMENTATION ORDER THIS SCHEDULE E (this "Schedule") for the Service Location(s) set forth in Schedule A is made and entered into as of the 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 "Panty" 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 ! attached hereto, in accordance with the final accepted Design Document prepared by the Company pursuant to City of Miami Phase 1 IGA. The Company agrees to perform such Services for the compensation set forth herein, subject to the terms and conditions of the Master Agreement. Further detailed specifications, if any, agreed upon by the Parties with respect to the Services to be performed by the Company hereunder (including, but not limited to, the designation of one or more Implementation Contractors approved by the Customer) are set forth in Appendix II attached hereto. Additional terms and conditions, if any, with respect to the Services to be performed by the Company hereunder or the approved ECOs to be constructed and installed pursuant to this Schedule are set forth in Appendix III attached hereto. 2. Customer Cooperation. The Customer shall use reasonable efforts to assist the Company in performing the Services contemplated by this Schedule, including providing reasonable access to the Customer's Service Location(s), providing information concerning the Service Location(s), making appropriate Customer personnel available if requested by the Company to assist the Company in performing such Services, and taking any other actions the Company may reasonably request from time to time to achieve the purposes and intent of this Schedule and the Master Agreement. 3. Inspections and Final Acceptance. During the performance of Services under this Schedule, the Customer shall have the right to inspect the work of the Company or any Implementation Contractor at any time upon reasonable prior notice. Upon completion of construction and installation of each ECO, the Parties shall conduct a final inspection and if the work is found to be substantially complete, the Customer shall execute and return to the Company a Schedule F (Certificate of Final Acceptance) of the Supplemental Agreement for each such completed ECO, within twenty (20) days following receipt by the Customer of a notice of substantial completion from the Company. If, upon inspection by the Customer, the work is not found to be substantially complete, or if any material defect or deficiency exists, then the Customer shall so notify the Company in writing within such twenty (20)-day period, and the Company shall promptly perform any necessary corrections and repairs. When the Company has completed such corrections and repairs, it shall again issue a notice of substantial completion to the Customer, and the foregoing procedure shall be repeated until such time as the Customer shall execute and return a Schedule F; 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 ECO following the Final Acceptance Date of the ECO. • 5. Price and Payment. 5.1 Schedule E Price. The Customer shall pay to the Company the sum of $783,539.°° for all Services performed by the Company pursuant to this Schedule. The Schedule E Price is the full compensation for such Services and includes all federal, state and local taxes, if any, including sales, use and excise taxes, assessed with respect to the Services or with respect to the furnishing of equipment and materials hereunder. 5.2. Company Provided Financing. Not Applicable. 5.3 Assignment and Assumption Agreement, Demand Side Management Agreement. The following documents are to be deemed exhibits to the Master Agreement for Demand Side Management and Energy Efficiency- Services effective December 7, 2004 between Florida Power and Light Company and the City of Miami, assigned to FPL Services, LLC pursuant to the Assignment and Assumption Agreement of August 3, 2010: 5.3.1. Supplemental Agreement #1 Schedule A: Designation of Service Locations 5.3.2 Supplemental Agreement #1 Schedule E: Construction and Implementation Order 5.3.3 Supplemental Agreement #1 Schedule E: Appendix I —Approved ECOs 5.3.4 Supplemental Agreement #1 Schedule E: Appendix 11— Service Specifications 5.3.5 Supplemental Agreement #1 Schedule E: Appendix I11 — 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 Miami EECBG Award 5.4 Invoices. Notwithstanding any contrary term in Section 3.09 of the Master Agreement, all invoices shall be submitted to: Ajani Stewart, Environmental Coordinator Office of Sustainable Initiatives City of Miami 444 SW 271Ave 5th Floor Miami, FL 33130 6. Disclaimer of Warranties. The Customer acknowledges and agrees that the Company makes no representation or warranty of any kind with respect to the Services to be performed by the Company or any other person, including any Implementation Contractor, pursuant or relating to this Schedule, except as expressly set forth in Article 4 of the Master Agreement or, if applicable, in any Appendix attached to this Schedule. 7. Availability of Funding. Notwithstanding Section 15.01 of the Master Agreement, upon thirty (30) days written notice from the Customer, acting through the City Manager, this Schedule is subject to termination for convenience by the Customer due to lack of funds, reduction of funds, and/or change in regulations. In the event of termination, the Customer shall pay the Company for work performed through the effective date of termination as determined in accordance with Section 8 below. 8. Termination Expense. In the event of a termination by the Customer pursuant to Section 7 above, the Company will be paid for work performed prior to the effective date of termination as substantiated by invoices and other supporting documentation reasonably acceptable to Customer; provided that such amounts will not exceed the cumulative amounts up to and• including the month of the effective termination date as set forth in the Termination Schedule attached as Appendix V. The Company will have no recourse against the Customer for the balance of the terminated portion of the work; provided however, that, for the avoidance of doubt and subject to the preceding sentence, the costs for the performance of work through the effective date of termination will include the costs of orders placed with Company's subcontractors and suppliers prior to the notice of termination that are not cancelable. Notwithstanding Section 12.01 of the Master Agreement, upon payment of the termination expenses pursuant to this Section 8, Customer shall have full title for all Work performed through the effective date of termination. 9. Interest. The Customer will pay 12% per annum simple interest on an undisputed and uncontroverted balance not paid 25 business days from when the Company has presented a proper invoice, as such terms are defined by Local Government Prompt Payment Act. §218.70-218.79, Fla. Stat. All notices and disputes resolution processes with regard to invoices and payments thereof shall be subject to the requirements of the Local Government Prompt Payment Act. 10. Restrictions on Use of Funds. The Customer intends to fund the specified work through a federal grant, the American Recovery and Reinvestment Act ("ARRA") Energy Efficiency and Conservation Block Grants ("EECBG"). Company shall provide information, documentation and cooperation reasonably necessary for the Customer to comply with its requirements set forth in Sections 1 through 21 of the SPECIAL TERMS AND CONDITIONS FOR CITY OF MIAMI EECBG AWARD, Attached as Schedule E, Appendix IV ("Appendix IV"). Company and the Work shall comply with Sections 22 through 30 of Appendix IV. Gary Reshefsky, int-rim Dirgctor f_i_ Risk Management Division, 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: By: Sam Forrest Its: President THE CUS ,_sue ER: City of By: Carlos A. Migoya Its: City Manager Attest: Priscilla A. Thompson City Clerk Approved as o insuran ., req 'iremen s: Approved as to legal farm and �rrectness: Julie O. City Attorney SCHEDULE E APPENDIX I - APPROVED ECOs Refer to City of Miami Phase 1 — IGA Dated May 20, 2010 1 SCHEDULE E APPENDIX II- SERVICE SPECIFICATIONS Refer to City of Miami Phase 1 — [GA Dated May 20, 2010 1 SCHEDULE E APPENDIX III — DRAW SCHEDULE Payment Milestone Amount Due Design and Development of IGA $100,000 30% Completion of Construction $135,062 75% Completion of Construction $352,592 90% Completion of Construction $117,531 Execution of Certificate of Final Acceptance $78,354 Total $783,539 For purposes of this Draw Schedule, the percentage of completion of construction set forth above will be based on the percentage of completion of construction as set forth by actual invoices and mutually agreed upon between the Company and Customer. 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Sumnary Deadline Pace 1 2635 dale sublscl b chat9e per afield NCP Iran City SCHEDULE E APPENDIX IV — Preliminary Construction Schedule See attached pdf file 1 SCHEDULE E APPENDIX V — Termination Schedule Description Cost Feasibility Study $100,000 Mobilization Fees $75,000 Month 1 -- Major Material $200,000 Month 2 -- Labor, Misc Material $100,000 Month 3 — Labor, Misc Material $50,000 Month 4 -- Labor, Misc Material $50,000 Month 5 -- Labor, Misc Material $40,000 Month 6 — Labor, Misc Material $40,000 Month 7 -- Labor, Misc Material $12,500 Month 8 -- Labor, Misc Material $12,500 Month 9 -- Labor, Misc Material $12,500 Month 10 -- Labor, Misc Material $12,500 Month 11 -- Labor, Misc Material $78,539 Total Project Cost $783,539 SCHEDULE E APPENDIX VI — SPECIAL TERMS AND CONDITIONS FOR CITY OF MIAMI EECBG AWARD SPECIAL TERMS AND CONDITIONS Table of Contents Number Subject 1. RESOLUTION OF CONFLICTING CONDITIONS 1 2. AWARD AGREEMENT TERMS AND CONDITIONS 1 3. ELECTRONIC AUTHORIZATION OF AWARD DOCUMENTS 1 4. PAYMENT PROCEDURES - ADVANCES THROUGH THE AUTOMATED STANDARD APPLICATION FOR PAYMENTS (ASAP) SYSTEM 1 5. CEILING ON ADMINISTRATIVE COSTS 1 6. LIMITATIONS ON USE OF FUNDS 2 7. INDIRECT COSTS AND FRINGE BENEFITS ARE NOT REIMBURSABLE 2 8. PRE -AWARD COSTS 2 9. USE OF PROGRAM INCOME 2 10. STATEMENT OF FEDERAL STEWARDSHIP 2 11. SITE VISITS 3 12. REPORTING REQUIREMENTS ...........3 13.. PUBLICATIONS 3 14. FEDERAL, STATE, AND MUNICIPAL REQUIREMENTS 3' 15. LOBBYING RESTRICTIONS 3 16. STAGED DISBURSEMENT 4 17. NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) REQUIREMENTS 4 18. HISTORIC PRESERVATION 5 19. WASTE STREAM 5 20. DECONTAMINATION AND/OR DECOMMISSIONING (D&D) COSTS 5 21. SUBCONTRACT/SUBGRANT APPROVALS 6 22. ADVANCE UNDERSTANDING CONCERNING PUBLICLY FINANCED ENERGY IMPROVEMENT PROGRAMS 6 23. SPECIAL PROVISIONS RELATING TO WORK FUNDED UNDER AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 (May 2009) 6 24. REPORTING AND REGISTRATION REQUIREMENTS UNDER SECTION 1512 OF THE RECOVERY ACT 10 25. NOTICE REGARDING THE PURCHASE OF AMERICAN-MADE EQUIPMENT AND PRODUCTS -- SENSE OF CONGRESS 10 26. REQUIRED USE OF AMERICAN IRON, STEEL, AND MANUFACTURED GOODS — SECTION 1605 OF THE AMERICAN RECOVERY AND REINVESTMENT ACT 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 REQUIREMENTS UNDER SECTION 1606 OF THE RECOVERY ACT 16 29. RECOVERY ACT TRANSACTIONS LISTED IN SCHEDULE OF EXPENDITURES OF FEDERAL AWARDS AND RECIPIENT RESPONSIBILITIES FOR INFORMING SUBRECIPIENTS • 17 30. DAVIS-BACON ACT REQUIREMENTS 17 1. RESOLUTION OF CONFLICTING CONDITIONS Any apparent inconsistency between Federal statutes and regulations and the terms and conditions contained in this award must be referred to the DOE Award Administrator for guidance. 2. AWARD AGREEMENT TERMS AND CONDITIONS This award/agreement consists of the Assistance Agreement, plus the following: a. Special Terms and Conditions. b. Attachments: Attachment Number Title 1. Statement of Project Objectives 2. Federal Assistance Reporting Checklist and Instructions 3. Budget Pages (SF 424A) c. DOE Assistance Regulations, 10 CFR Part 600 at hp://ecfr.gpoaccess.gov. d. Application/proposal as approved by DOE. e. National Policy Assurances to Be Incorporated as Award Terms in effect on date of award at htto://mana¢ement.eneray.gov/business doe/l374.htm. 3. ELECTRONIC AUTHORIZATION OF AWARD 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. Acknowledgement via FedConnect by the Recipient's authorized representative constitutes the Recipient's electronic signature. 4. PAYMENT PROCEDURES - ADVANCES THROUGH THE AUTOMATED STANDARD APPLICATION FOR PAYMENTS (ASAP) SYSTEM a. Method of Payment. Payment will be made by advances through the Department of Treasury's ASAP system. b. Requesting Advances. Requests for advances must be made through the ASAP system. You may submit requests as frequently as required to meet your needs to disburse funds for the Federal share of project costs. If feasible, you should time each request so that you receive payment on the same day that you disperse funds for direct project costs and the proportionate share of any allowable indirect costs. If same - day transfers are not feasible, advance payments must be as close to actual disbursements as administratively feasible. c. Adjusting payment requests for available cash. You must disburse any funds that are available from repayments to and interest earned on a revolving fund, program income, rebates, refunds, contract settlements, audit recoveries, credits, discounts, and interest earned on any of those funds before requesting additional cash payments from DOE. d. Payments. All payments are made by electronic funds transfer to the bank account identified on the ASAP Bank Information Form that you filed with the U.S. Department of Treasury. 5. CEILING ON ADMINISTRATIVE COSTS a. Local government and Indian Tribe Recipients may not use more than 10 percent of amounts provided 1 1 under this program, or $75,000, whichever is greater (EISA Sec 545 (b)(3)(A)), for administrative expenses, excluding the costs of meeting the reporting requirements under Title V, Subtitle E of EISA. These costs should be captured and summarized for each activity under the Projected Costs Within Budget: Administration, b. Recipients are expected to manage their administrative costs. DOE will not amend an award solely to provide additional funds for changes in administrative costs. The Recipient shall not be reimbursed on this. project for any final administrative costs that are in excess of the designated 10 percent administrative cost ceiling. In addition, the Recipient shall neither count costs in excess of the administrative cost ceiling as cost share, nor allocate such costs to other federally sponsored project, unless approved by the Contracting Officer. 6. LIMI[TATIONS ON USE OF FUNDS a. By accepting funds under this award, you agree that none of the funds obligated on the award shall be expended, directly or indirectly, for gambling establishments, aquariums, zoos, golf courses or swimming pools. b. Local government and Indian tribe Recipients may not use more than 20 percent of the amounts provided or $250,000, whichever is greater (EISA Sec 545 (b)(3)(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 $250,000, whichever is greater (EISA Sec 545 (b)(3)(C)), for subgrants to nongovernmental organizations for the purpose of assisting in the implementation of the energy efficiency and conservation strategy of the eligible unit of local government or Indian tribe. 7. INDIRECT COSTS AND FRINGE BENEFITS ARE NOT REIMBURSABLE The budget for this award does not include indirect costs or fringe benefits. Therefore, these expenses shall not be charged to nor reimbursement requested for this project nor shall the indirect and fringe benefit costs from this project be allocated to any other federally sponsored project. In addition, indirect costs or fringe benefits shall not be counted as cost share unless approved by the Contracting Officer. This restriction does not apply to sub-awardees' indirect or fringe benefit costs. S. PRE -AWARD COSTS You are entitled to reimbursement for costs incurred on or after February 17, 2009, as authorized by the pre - award costs letter dated August 20, 2009, if such costs are allowable in accordance with the applicable Federal cost principles referenced in 10 CFR Part 600. 9. USE OF PROGRAM INCOME If you earn program income during the project period as a result of this award, you may add the program income to the funds committed to the award and used to further eligible project objectives. 10. STATEMENT OF FEDERAL STEWARDSHIP DOE will exercise normal Federal stewardship in overseeing the project activities performed under this award. Stewardship activities include, but are not limited to, conducting site visits; reviewing performance and financial reports; providing technical assistance and/or temporary intervention in unusual circumstances to correct deficiencies which develop during the project; assuring compliance with terms and conditions; and 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. Ail site visits and evaluations must be performed in a manner that does not unduly interfere with or delay the work. 12. REPORTING REQUIREMENTS a. Requirements. The reporting requirements for this award are identified on the Federal Assistance Reporting Checklist, DOE F 4600.2, attached to this award. Failure to comply with these reporting requirements is considered a material noncompliance with the terms of the award. Noncompliance may result in withholding of future payments, suspension or termination of the current award, and withholding of future awards. A willful failure to perform, a history of failure to perform, or unsatisfactory performance of this and/or other financial assistance awards, may also result in a debarment action to preclude future awards by Federal agencies. b. Additional Recovery Act Reporting Requirements are found in the Provision below labeled: "REPORTING AND REGISTRATION REQUIREMENTS UNDER SECTION 1512 OF THE RECOVERY ACT." 13. PUBLICATIONS - a. You are encouraged to publish or otherwise make publicly available the results of the work conducted under the award. b. An acknowledgment of DOE support and a disclaimer must appear in the publication of any material, whether copyrighted or not, based on or developed under this project, as follows: 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 Number(s) [enter the award number(s)]." Disclaimer: "This report was prepared as an account of work sponsored by an agency of the United States Government. Neither the United States Government nor any agency thereof, nor any of their employees, makes any warranty, express or implied, or assumes any legal liability or responsibility for the accuracy, completeness, or usefulness of any information, apparatus, product, or process disclosed, or represents that its use would not infringe privately owned rights. Reference herein to any specific commercial product, process, or service by trade name, trademark, manufacturer, or otherwise does not necessarily constitute or imply its endorsement, recommendation, or favoring by the United States Government or any agency thereof. The views and opinions of authors expressed herein do not necessarily state or reflect those of the United States Government or any agency thereof." 14. FEDERAL, STATE, AND MUNICIPAL REQUIREMENTS You must obtain any required permits and comply with applicable federal, state, and municipal laws, codes, and regulations for work performed under this award. 15. LOBBYING RESTRICTIONS 3 By accepting funds under this award, you agree that none of the funds obligated on the award shall be expended, directly or indirectly, to influence congressional action on any legislation or appropriation matters pending before Congress, other than to communicate to Members of Congress as described in 18 U.S.C. 1913. This restriction is in addition to those prescribed elsewhere in statute and regulation. 16. STAGED DISBURSEMENT a. The total funding allocation for this award, shown in Block 12 of the Assistance Agreement, will be obligated in full with this action; however, funds will be released according to a staged disbursement schedule. All funds must be expended within 36 months of the effective date of the award. 1. The initial disbursement of funds is 50% of the total funding allocation. The amount identified on Page 2 of the Assistance Agreement will be released to the Recipient to begin work on the approved activities listed in the Statement of Project Objectives. If conditions are included in the terms and conditions of this award, upon satisfying the conditions, the Contracting Officer will lift the funding restrictions associated with the conditions and release the remainder of the initial disbursement of funds. 2. Project performance will be monitored and corrective action taken, as necessary to ensure acceptable performance under this award. After one or more progress reviews, in which the Recipient must demonstrate that it has made satisfactory progress on its activities; expended funds appropriately; complied with reporting requirements; and created jobs, the Contracting Officer will approve the release of the remaining balance of the total funding allocation. b. No additional funds will be disbursed to the Recipient for payment, and DOE does not guarantee or assume any obligation to reimburse costs incurred by the Recipient, until the requirements of each progress review are met. Failure by the Recipient to demonstrate acceptable performance under this award will be deemed a noncompliance pursuant to I 0 CFR 600. If a noncompliance occurs, the Contracting Officer may unilaterally terminate or suspend this award and deobligate the amounts obligated. In such case, the Recipient shall not be reimbursed for costs incurred at the Recipient's risk, as described above. 17. NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) REQUIREMENTS You are restricted from taking any action using Federal fluids, which would have an adverse effect on the environment or limit the choice of reasonable alternatives prior to DOE providing either a NEPA clearance or a final NEPA decision regarding this project. 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. 4 Recipient shall ensure the safety and structural integrity of any repair, replacement, construction and/or alteration performed under this project. The NEPA determination for the Miami Green Lab applies only to Energy Efficiency retrofits and upgrades. Recipient is restricted from distributing Federal funds on any other activities pending: (1) further submission by Recipient specifically identifying all activities authorized under this Program; and (2) a final NEPA determination from DOE regarding those activities. Energy Efficiency Retrofits in Existing City -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 (SHPO), and, if applicable, the Tribal Historic Preservation Officer (THPO), to coordinate the Section 106 review outlined in 36 CFR Part 800. SHPO contact information is available at the following link: http://www.ncshpo.orJfnd/index.htm. THPO contact information is available at the following link: http://www.nathpo.ortilmap.html Section 110(k) of the NHPA applies to DOE funded activities. Recipients shall avoid taking any action that results in an adverse effect to historic properties pending compliance with Section 106. Recipients should be aware that the DOE Contracting Officer will consider the recipient in compliance with Section 106 of the NI -EPA only after the Recipient has submitted adequate background documentation to the SHPO/THPO for its review, and the SHPO/THPO has provided written concurrence to the Recipient that it does not object to its Section 106 finding or determination. Recipient shall provide a copy of this concurrence to. the Contracting Officer. 19. WASTE STREAM Prior to the expenditure of Federal funds to dispose of sanitary or hazardous waste, the Recipient is required to provide documentation to the Project Officer demonstrating that it has prepared a disposal plan for sanitary or hazardous waste generated by the proposed activities. Sanitary or hazardous waste includes, but is not limited to, old light bulbs, lead ballasts, piping, roofing material, discarded equipment, debris, asbestos, etc. The DOE Contracting Officer shall consider compliance with this clause complete only after the Recipient has submitted adequate documentation to DOE for its review, and DOE has provided written approval to the Recipient of its proposed plan to dispose of its sanitary or hazardous waste. 20. DECONTAMINATION AND/OR DECOMMISSIONING (D&D) COSTS Notwithstanding any other provisions of this Agreement, the Government shall not be responsible for or have any obligation to the Recipient for (i) Decontamination and/or Decommissioning (D&D) of any of the 5 Recipient's facilities, or (ii) any costs which may be incurred by the Recipient in connection with the D&D of any of its facilities due to the performance of the work under this Agreement, whether said work was performed prior to or subsequent to the effective date of the Agreement. 21. SUBCONTRACTISUBGRANT 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 subeontract/subgrant must be approved by the DOE Contracting Officer. b. Upon the recipient's selection of the subcontractor(s)/subgrantee(s), and within 180 days of the award date in Block 27 of the Assistance Agreement, the recipient shall provide the following information for each, regardless of dollar amount: Name DUNS Number Award Amount Statement of work including applicable activities EF-1 for all proposed activities c, In addition to the information in paragraph b. above, for each subcontract/subgrant that has an estimated cost greater than 25% of the Total Allocation or $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 subcontracts)/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 of Energy intends to publish "Best Practices" or other guidelines pertaining to the use of funds made available to the Recipient under this award pertaining to the programs identified herein. By accepting this award, the Recipient agrees to incorporate, to the maximum extent practicable, those Best Practices and other guidelines into any such program(s) within a reasonable time after notification by DOE that the Best Practices or guidelines have been made available. The Recipient also agrees, by its acceptance of this award, to require its sub -recipients to incorporate to the maximum extent practicable the best practices and other guideline into any such program used by the sub - recipient. 23. SPECIAL PROVISIONS RELATING TO WORK FUNDED UNDER AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 (May 2009) 6 Preamble The American Recovery and Reinvestment Act of 2009, Pub. L. 111-5, (Recovery Act) was enacted to preserve and create jobs and promote economic recovery, assist those most impacted by the recession, provide investments needed to increase economic efficiency by spurring technological advances in science and health, invest in transportation, environmental protection, and other infrastructure that will provide long-term economic benefits, stabilize State and local government budgets, in order to minimize and avoid reductions in essential services and counterproductive State and local tax increases. Recipients shall use grant funds in a manner that maximizes job creation and economic benefit. The Recipient shall comply with all terms and conditions in the Recovery Act relating generally to governance, accountability, transparency, data collection and resources as specified in Act itself and as discussed below. Recipients should begin planning activities for their first tier sub -recipients, including obtaining a DUNS number (or updating the existing DUNS record), and registering with the Central Contractor Registration (CCR). Be advised that Recovery Act funds can be used in conjunction with other funding as necessary to complete projects, but tracking and reporting must be separate to meet the reporting requirements of the Recovery Act and related guidance. For projects funded by sources other than the Recovery Act, Contractors must keep separate records for Recovery Act funds and to ensure those records comply with the requirements of the Act. The Government has not fully developed the implementing instructions of the Recovery Act, particularly concerning specific procedural requirements for the new reporting requirements. The Recipient will be provided these details as they become available. The Recipient must comply with all requirements of the Act. If the recipient believes there is any inconsistency between ARRA requirements and current award terms and conditions, the issues will be referred to the Contracting Officer for reconciliation. Definitions For purposes of this clause, Covered Funds means funds expended or obligated from appropriations under the American Recovery and Reinvestment Act of 2009, Pub. L. 111-5. Covered Funds will have special accounting codes and will be identified as Recovery Act funds in the grant, cooperative agreement or TIA and/or modification using Recovery Act funds. Covered Funds must be reimbursed by September 30, 2015. Non -Federal employer means any employer with respect to covered funds -- the contractor, subcontractor, grantee, or recipient, as the case may be, if the contractor, subcontractor, grantee, or recipient is an employer; and any professional membership organization, certification of other professional body, any agent or licensee of the Federal government, or any person acting directly or indirectly in the interest of an employer receiving covered funds; or with respect to covered funds received by a State or local government, the State or local government receiving the funds and any contractor or subcontractor receiving the funds and any contractor or subcontractor of the State or local government; and does not mean any department, agency, or other entity of the federal government. Recipient means any entity that receives Recovery Act funds directly from the Federal government (including Recovery Act funds received through grant, loan, or contract) other than an individual and includes a State that receives Recovery Act Funds. Special Provisions A. Flow Down Requirement Recipients must include these special terms and conditions in any subaward. B. Segregation of Costs 7 Recipients must segregate the obligations and expenditures related to funding under the Recovery Act. Financial and accounting systems should be revised as necessary to segregate, track and maintain these funds apart and separate from other revenue streams. No part of the funds from the Recovery Act shall be commingled with any other funds or used for a purpose other than that of making payments for costs allowable for Recovery Act projects. C. Prohibition on Use of Funds None of the funds provided under this agreement derived from the American Recovery and Reinvestment Act of 2009, Pub. L. 111-5, may be used by any State or local government, or any private entity, for any casino or other gambling establishment, aquarium, zoo, golf course, or swimming pool. D. Access to Records With respect to each financial assistance agreement awarded utilizing at least some of the funds. appropriated or otherwise made available by the American Recovery and Reinvestment Act of 2009, Pub. L. 111-5, any representative of an appropriate inspector general appointed under section 3 or 8G of the Inspector General Act of 1988 (5 U.S.C. App.) or of the Comptroller General is authorized -- (1) to examine any records of the contractor or grantee, any of its subcontractors or subgrantees, or any State or local agency administering such contract that pertain to, and involve transactions that relate to, the subcontract, subcontract, grant, or subgrant; and (2) to interview any officer or employee of the contractor, grantee, subgrantee, or agency regarding such transactions. E. Publication An application may contain technical data and other data, including trade secrets and/or privileged or confidential information, which the applicant does not want disclosed to the public or used by the Government for any purpose other than the application. To protect such data, the applicant should specifically identify each page including each line or paragraph thereof containing the data to be protected and mark the cover sheet of the application with the following Notice as well as referring to the Notice on each page to which the Notice applies: Notice of Restriction on Disclosure and Use of Data The data contained in pages ---- of this application have been submitted in confidence and contain trade secrets or proprietary information, and such data shall be used or disclosed only for evaluation purposes, provided that if this applicant receives an award as a result of or in connection with the submission of this application, DOE shall have the right to use or disclose the data here to the extent provided in the award. This restriction does not limit the Government's right to use or disclose data obtained without restriction from any source, including the applicant. Information about this agreement will be published on the Internet and linked to the website www.recovery.gov, maintained by the Accountability and Transparency Board. The Board may exclude posting contractual or other information on the website on a case -by -case basis when necessary to protect national security or to protect information that is not subject to disclosure under sections 552 and 552a of title 5, United States Code. F. Protecting State and Local Government and Contractor Whistleblowers. The requirements of Section 1553 of the Act are summarized below. They include, but are not limited to: Prohibition on Reprisals: An employee of any non -Federal employer receiving covered funds under the American Recovery and Reinvestment Act of 2009, Pub. L. 111-5, may not be discharged, demoted, or otherwise discriminated against as a reprisal for disclosing, including a disclosure made in the ordinary course of an employee's duties, to the Accountability and Transparency Board, an inspector general, the 8 Comptroller General, a member of Congress, a State or Federal regulatory or law enforcement agency, a person with supervisory authority over the employee (or other person working for the employer who has the authority to investigate, discover or terminate misconduct), a court or grant jury, the head of a Federal agency, or their representatives information that the employee believes is evidence of: - gross management of an agency contract or grant relating to covered funds; - a gross waste of covered funds; - a substantial and specific danger to public health or safety related to the implementation or use of covered funds; - an abuse of authority related to the implementation or use of covered funds; or - as violation of law, rule, or regulation related to an agency contract (including the competition for or negotiation of a contract) or grant, awarded or issued relating to covered funds. Agency Action: Not later than 30 days after receiving an inspector general report of an alleged reprisal, the head of the agency shall determine whether there is sufficient basis to conclude that the non -Federal employer has subjected the employee to a prohibited reprisal. The agency shall either issue an order denying relief in whole or in part or shall take one or more of the following actions: - Order the employer to take affirmative action to abate the reprisal. - Order the employer to reinstate the person to the position that the person held before the reprisal, together with compensation including back pay, compensatory damages, employment benefits, and other terms and conditions of employment that would apply to the person in that position if the reprisal had not been taken. - Order the employer to pay the employee an amount equal to the aggregate amount of all costs and expenses (including attorneys' fees and expert witnesses' fees) that were reasonably incurred by the employee for or in connection with, bringing the complaint regarding the reprisal, as determined by the head of a court of competent jurisdiction. Nonenforceability of Certain Provisions Waiving Rights and remedies or Requiring Arbitration: Except as provided in a collective bargaining agreement, the rights and remedies provided to aggrieved employees by this section may not be waived by any agreement, policy, form, or condition of employment, including any predispute arbitration agreement. No predispute arbitration agreement shall be valid or enforceable if it requires arbitration of a dispute arising out of this section. Requirement to Post Notice of Rights and Remedies: Any employer receiving covered funds under the American Recovery and Reinvestment Act of 2009, Pub. L. 111-5, shall post notice of the rights and remedies as required therein. (Refer to section 1553 of the American Recovery and Reinvestment Act of 2009, Pub. L. 111-5, www.Recovery.gov, for specific requirements of this section and prescribed language for the notices.). G. Reserved H. False Claims Act Recipient and sub -recipients shall promptly refer to the DOE or other appropriate Inspector General any credible evidence that a principal, employee, agent, contractor, sub -grantee, subcontractor or other person has submitted a false claim under the False Claims Act or has committed a criminal or civil violation of laws pertaining to fraud, conflict of interest, bribery, gratuity or similar misconduct involving those funds. I. Information in Support of Recovery Act Repotting Recipient may be required to submit backup documentation for expenditures of funds under the Recovery Act including such items as timecards and invoices. Recipient shall provide copies of backup documentation at the request of the Contracting Officer or designee. 3. Availability of Funds Funds obligated to this award are available for reimbursement of costs until 36 months after the award date. 9 K. Additional Funding Distribution and Assurance of Appropriate Use of Funds Certification by Governor — For funds provided to any State or agency thereof by the American Reinvestment and Recovery Act of2009, Pub. L. 111-5, the Governor of the State shall certify that: 1) the state will request and use funds provided by the Act; and 2) the funds will be used to create jobs and promote economic growth. Acceptance by State Legislature -- If funds provided to any State in any division of the Act are not accepted for use by the Governor, then acceptance by the State legislature, by means of the adoption of a concurrent resolution, shall be sufficient to provide funding to such State. Distribution -- After adoption of a State legislature's concurrent resolution, funding to the State will be for distribution to local 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 of 2009, Pub. L. 111-5, the Governor, mayor, or other chief executive, as appropriate, certified by acceptance of this award that the infrastructure investment has received the full review and vetting required by law and that the chief executive accepts responsibility that the infrastructure investment is an appropriate use of taxpayer dollars. Recipient shall provide an additional certification that includes a description of the investment, the estimated total cost, and the amount of covered funds to be used for posting on the Internet. A State or local agency may not receive infrastructure investment funding from funds made available by the Act unless this certification is made and posted. 24. REPORTING AND REGISTRATION REQUIREMENTS UNDER SECTION 1512 OF TUN, RECOVERY ACT (a) This award requires the recipient to complete projects or activities which are funded under the American Recovery and Reinvestment Act of 2009 (Recovery Act) and to report on use of Recovery Act funds provided through this award. Information from these reports will be made available to the public. (b) The reports are due no later than ten calendar days after each calendar quarter in which the Recipient receives the assistance award funded in whole or in part by the Recovery Act. (c) Recipients and their first -tier subrecipients must maintain current registrations in the Central Contractor Registration (http://www.ccr.gov) at all times during which they have active federal awards funded with Recovery Act funds. A Dun and Bradstreet Data Universal Numbering .System (DUNS) Number (http://www. dnb. co,n) is one of the requirements for registration in the Central Contractor Registration. (d) The recipient shall report the information described in section 1512(c) of the Recovery Act using the reporting instructions and data elements that will be provided online at http://www.FederalReporting.gov and ensure that any information that is pre -filled is corrected or updated as needed. 25. NOTICE REGARDING THE PURCHASE OF AMERICAN-MADE EQUIPMENT AND PRODUCTS -- SENSE OF CONGRESS It is the sense of the Congress that, to the greatest extent practicable, all equipment and products purchased with funds made available under this award should be American -made, 10 H *Special Note: Definitization of the Provisions entitled, "REQUIRED USE OF AMERICAN IRON, STEEL, AND MANUFACTURED GOODS — SECTION 1605 OF THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009" and "REQUIRED USE OF AMERICAN IRON, STEEL, AND MANUFACTURED GOODS (COVERED UNDER INTERNATIONAL AGREEMENTS) — SECTION 1605 OF THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009" will be done upon definition and review of final activities. 26. REQUIRED USE OF AMERICAN IRON, STEEL, AND MANUFACTURED GOODS - SECTION 1605 OF THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 (a) Definitions, As used in this award term and condition— (1) Manufactured good means a good brought to the construction site for incorporation into the building or work that has been— (i) Processed into a specific form and shape; or (i:i) Combined with other raw material to create a material that has different properties than the properties of the individual raw materials. (2) Public building and public work means a public building of, and a public work of, a governmental entity (the United States; the District of Columbia; commonwealths, territories, and minor outlying islands of the United States; State and local governments; and multi -State, regional, or interstate entities which have governmental functions). These buildings and works may include, without limitation, bridges, dams, plants, highways, parkways, streets, subways, tunnels, sewers, mains, power lines, pumping stations, heavy generators, railways, airports, terminals, docks, piers, wharves, ways, lighthouses, buoys, jetties, breakwaters, levees, and canals, and the construction, alteration, maintenance, or repair of such buildings and works. (3) Steel means an alloy that includes at least 50 percent iron, between .02 and 2 percent carbon, and may include other elements. (b) Domestic preference. (1) This award term and condition implements Section 1605 of the American Recovery and Reinvestment Act of 2009 (Recovery Act) (Pub. L. 111-5), by requiring that all iron, steel, and manufactured goods used in the project are produced in the United States except as provided in paragraph (b)(3) and (b)(4) of this section and condition. (2) This requirement does not apply to the material listed by the Federal Government as follows: To Be Determined (3) The award official may add other iron, steel, and/or manufactured goods to the list in paragraph (b)(2) of this section and condition if the Federal Government determines that— (i) The cost of the domestic iron, steel, and/or manufactured goods would be unreasonable. The cost of domestic iron, steel, or manufactured goods used in the project is unreasonable when the cumulative cost of such material will increase the cost of the overall project by more than 25 percent; (i1) The iron, steel, and/or manufactured good is not produced, or manufactured in the United States in sufficient and reasonably available quantities and of a satisfactory quality; or 11 (iii) The application of the restriction of section 1605 of the Recovery Act would be inconsistent with the public interest. (c) Request for determination of inapplicability of Section 1605 of the Recovery Act . (1)(i) Any recipient request to use foreign iron, steel, and/or manufactured goods in accordance with paragraph (b)(3) of this section shall include adequate information for Federal Government evaluation of the request, including — (A) A description of the foreign and domestic iron, steel, and/or manufactured goods; (B) Unit of measure; (C) Quantity; (D) Cost; (E) Time of delivery or availability; (F) Location of the project; (G) Name and address of the proposed supplier; and (H) A detailed justification of the reason for use of foreign iron, steel, and/or manufactured goods cited in accordance with paragraph (b)(3) of this section. (ii) A request based on unreasonable cost shall include a reasonable survey of the market and a completed cost comparison table in the format in paragraph (d) of this section. (iii) The cost of iron, steel, and/or manufactured goods material shall include all delivery costs to the construction site and any applicable duty. (iv) Any recipient request for a determination submitted after Recovery Act funds have been obligated for a project for construction, alteration, maintenance, or repair shall explain why the recipient could not reasonably foresee the need for such determination and could not have requested the determination before the funds were obligated. If the recipient does not submit a satisfactory explanation, the award official need not make a determination. (2) If the Federal Government determines after funds have been obligated for a project for construction, alteration, maintenance, or repair that an exception to section 1605 of the Recovery Act applies, the award official will amend the award to allow use of the foreign iron, steel, and/or relevant manufactured goods. When the basis for the exception is nonavailability or public interest, the amended award shall reflect adjustment of the award amount, redistribution of budgeted funds, and/or other actions taken to cover costs associated with acquiring or using the foreign iron, steel, and/or relevant manufactured goods. When the basis for the exception is the unreasonable cost of the domestic iron, steel, or manufactured goods, the award official shall adjust the award amount or redistribute budgeted funds by at least the differential established in 2 CFR 176.110(a). (3) Unless the Federal Government determines that an exception to section 1605 of the Recovery Act applies, use of foreign iron, steel, and/or manufactured goods is noncompliant with section 1605 of the American Recovery and Reinvestment Act. (d) Data. To permit evaluation of requests under paragraph (b) of this section based on unreasonable cost, the Recipient shall include the following information and any applicable supporting data based on the survey of suppliers: I2 Foreign and Domestic Items Cost Comparison Description Unit of measure Quantity Cost (dollars)* Item 1: Foreign steel, iron, or manufactured good Domestic steel, iron, or manufactured good Item 2: Foreign steel, iron, or manufactured good Domestic steel, iron, or manufactured good List name, address, telephone number, email address, and contact for suppliers surveyed. Attach copy of response; if oral, attach summary. Include other applicable supporting information. *Include all delivery costs to the construction site. 27. REQUIRED USE OF AMERICAN IRON, STEEL, AND MANUFACTURED. GOODS (COVERED UNDER INTERNATIONAL AGREEMENTS) - SECTION 1605 OF THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 (a) Definitions. As used in this award term and condition — Designated country — (1) A World Trade Organization Government Procurement Agreement country (Aruba, Austria, Belgium, Bulgaria, Canada, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, Italy, Japan, Korea (Republic of), Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, and United Kingdom; (2) A Free Trade Agreement (FTA) country (Australia, Bahrain; Canada, Chile,. Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Israel, Mexico, Morocco, Nicaragua, Oman, Peru, or Singapore); or (3) A United States -European Communities Exchange of Letters (May 15, 19-95) country: Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovak Republic, Slovenia, Spain, Sweden, and United. Kingdom. Designated country iron, steel, and/or manufactured goods — (1) Is wholly the growth, product, or manufacture of a designated country; or 13 (2) In the case of a manufactured good that consist in whole or in part of materials from another country, has been substantially transformed in a designated country into a new and different manufactured good distinct - from the materials from which it was transformed. Domestic iron, steel an&or manufactured good — (1) Is wholly the growth, product, or manufacture of the United States; or (2) In the case of a manufactured good that consists in whole or in part of materials from another county, has been substantially transformed in the United States into a new and different manufactured good distinct from the materials from which it was transformed. There is no requirement with regard to the origin of components or subcomponents in manufactured goods or products, as long as the manufacture of the goods occurs in the United States. Foreign iron, steel, and/or manufactured good means iron, steel and/or manufactured good that is not domestic or designated country iron, steel, and/or manufactured good. Manufactured good means a good brought to the construction site for incorporation into the building or work that has been— (1) Processed into a specific form and shape; or (2) Combined with other raw material to create a material that has different properties than the properties of the individual raw materials. Public building and public work means a public building of, and a public work of, a governmental entity (the United States; the District of Columbia; commonwealths, territories, and minor outlying islands of the United States; State and local governments; and multi -State, regional, or interstate entities which have governmental functions). These buildings and works may include, without limitation, bridges, dams, plants, highways, parkways, streets, subways, tunnels, sewers, mains, power lines, pumping stations, heavy generators, railways, airports, terminals, docks, piers, wharves, ways, lighthouses, buoys, jetties, breakwaters, levees, and canals, and the construction, alteration, maintenance, or repair of such buildings and works. Steel means an alloy that includes at least 50 percent iron, between .02 and 2 percent carbon, and may include other elements. (b) Iron, steel, and manufactured goods. (1) The award term and condition described in this section implements— (i) Section 1605(a) of the American Recovery and Reinvestment Act of 2009 (Pub, L. 111-5) (Recovery Act), by requiring that all iron, steel, and manufactured goods used in the project are produced in the United States; and (ii) Section 1605(d), which requires application of the Buy American requirement in a manner consistent with U.S. obligations under international agreements. The restrictions of section 1605 of the Recovery Act do not apply to designated country iron, steel, and/or manufactured goods. The Buy American requirement in section 1605 shall not be applied where the iron, steel or manufactured goods used in the project are from a Party to an international agreement that obligates the recipient to treat the goods and services of that Party the same as domestic goods and services. This obligation shall only apply to projects with an estimated value of $7,443,000 or more. 14 (2) The recipient shall use only domestic or designated country iron, steel, and manufactured goods in performing the work funded in whole or part with this award, except as provided in paragraphs (b)(3) and (b)(4) of this section. (3) The requirement in paragraph (b)(2) of this section does not apply to the iron, steel, and manufactured goods listed by the Federal Government as follows: To Be Determined (4) The award official may add other iron, steel, and manufactured goods to the list in paragraph (b)(3) of this section if the Federal Government determines that— (i) The cost of domestic iron, steel, and/or manufactured goods would be unreasonable. The cost of domestic iron, steel, and/or manufactured goods used in the project is unreasonable when the cumulative cost of such material will increase the overall cost of the project by more than 25 percent (ii) The iron, steel, and/or manufactured good is not produced, or manufactured in the United States in sufficient and reasonably available commercial quantities of a satisfactory quality; or (iii) The application of the restriction of section 1605 of the Recovery Act would be inconsistent with the public interest. • (c) Request for determination of inapplicability of section 1605 of the Recovery Act or the Buy American Act. (1)(i) Any recipient request to use foreign iron, steel, and/or manufactured goods in accordance with paragraph (b)(4) of this section shall include adequate information for Federal Government evaluation of the request, including — (A) A description of the foreign and domestic iron, steel, and/or manufactured goods; (B) Unit of measure; (C) Quantity; (D) Cost; (E) Time of delivery or availability; (F) Location of the project; (G) Name and address of the proposed supplier; and (H) A detailed justification of the reason for use of foreign iron, steel, and/or manufactured goods cited in accordance with paragraph (b)(4) of this section. (ii) A request based on unreasonable cost shall include a reasonable survey of the market and a completed cost comparison table in the format in paragraph (d) of this section. (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) If the Federal Government determines after funds have been obligated for a project for construction, alteration, maintenance, or repair that an exception to section 1605 of the Recovery Act applies, the award official will amend the award to allow use of the foreign iron, steel, and/or relevant manufactured goods. When the basis for the exception is nonavailability or public interest, the amended award shall reflect adjustment of the award amount, redistribution of budgeted funds, and/or other appropriate actions taken to cover costs associated with acquiring or using the foreign iron, steel, and/or relevant manufactured goods. When the basis for the exception is the unreasonable cost of the domestic iron, steel, or manufactured goods, the award official shall adjust the award amount or redistribute budgeted funds, as appropriate, by at least the differential established in 2 CFR 176.110(a). (3) Unless the Federal Government determines that an exception to section 1605 of the Recovery Act applies, use of foreign iron, steel, and/or manufactured goods other than designated country iron, steel, and/or manufactured goods is noncompliant with the applicable Act. (d) Data. To permit evaluation of requests under paragraph (b) of this section based on unreasonable cost, the applicant shall include the following information and any applicable supporting data based on the survey of suppliers: Foreign and Domestic Items Cost Comparison Description Unit of measure Quantity Cost (dollars)* Item 1: Foreign steel, iron, or manufactured good Domestic steel, iron, or manufactured good Item 2: Foreign steel, iron, or manufactured good Domestic steel, iron, or manufactured good List name, address, telephone number, email address, and contact for suppliers surveyed. Attach copy of response; if oral, attach summary. Include other applicable supporting information. *Include all delivery costs to the construction site. 28. WAGE RATE REQUIREMENTS UNDER SECTION 1606 OF THE RECOVERY ACT (a) Section 1606 of the Recovery Act requires that all laborers and mechanics employed by contractors and subcontractors on projects funded directly by or assisted in whole or in part by and through the Federal 16 Government pursuant to the Recovery Act shallbe paid wages at rates not less than those prevailing on projects of a character similar in the locality as determined by the Secretary of Labor in accordance with subchapter IV of chapter 31 of title 40, United States Code. Pursuant to Reorganization Plan No. 14 and the Copeland Act, 40 U.S.C. 3145, the Department of Labor has issued regulations at 29 CFR parts 1, 3, and 5 to implement the Davis -Bacon and related Acts. Regulations in 29 CFR 5.5 instruct agencies concerning application of the standard Davis -Bacon contract clauses set forth in that section. Federal agencies providing grants, cooperative agreements, and loans under the Recovery Act shall ensure that the standard Davis -Bacon contract clauses found in 29 CFR 5.5(a) are incorporated in any resultant covered contracts that are in excess of $2,000 for construction, alteration or repair (including painting and decorating). (b) For additional guidance on the wage rate requirements of section 1606, contact your awarding agency. Recipients of grants, cooperative agreements and loans should direct their initial inquiries concerning the application of Davis -Bacon requirements to a particular federally assisted project to the Federal agency funding the project. The Secretary of Labor retains final coverage authority under Reorganization Plan Number 14. 29. RECOVERY ACT TRANSACTIONS LISTED IN SCHEDULE OF EXPENDITURES OF FEDERAL AWARDS AND RECIPIENT RESPONSIBILITIES FOR INFORMING SUBRECIPIENTS (a) To maximize the transparency and accountability of funds authorized under the American Recovery and Reinvestment Act of 2009 (Pub. L. 111--5) (Recovery Act) as required by Congress and in accordance with 2 CFR 215.21 "Uniform Administrative Requirements for Grants and Agreements" and OMB Circular A-102 Common Rules provisions, recipients agree to maintain records that identify adequately the source and application of Recovery Act funds. OMB Circular A-102 is available at htip://www.whitehouse.gov/omb/circulars/a102/a102.htini. (b) For recipients covered by the Single Audit Act Amendments of 1996 and OMB Circular A-133, "Audits of States, Local Governments, and Non -Profit Organizations;" recipients agree to separately identify the expenditures for Federal awards under the Recovery Act on the Schedule of Expenditures of Federal Awards (SEFA) and the Data Collection Form (SF -.SAC) required by OMB Circular A-133. OMB Circular A-133 is available at http://www.whitehouse.gov/olnb/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 narne of the Federal program on the SEFA and as .the first characters in Item 9d of Part III on the SF —SAC. (c) Recipients agree to separately identify to each subrecipient, and document at the time of subaward and at the time of disbursement of funds, the Federal award number, CFDA number, and amount of Recovery Act funds. When a recipient awards Recovery Act funds for an existing program, the information furnished to subrecipients shall distinguish the subawards of incremental Recovery Act funds from regular subawards under the existing program. (d) Recipients agree to require their subrecipients to include on their SEFA information to specifically identify Recovery Act funding similar to the requirements for the recipient SEFA described above. This information is needed to allow the recipient to properly monitor subrecipient expenditure of ARRA funds as well as oversight by the Federal awarding agencies, Offices of Inspector General and the Government Accountability Office. 30. DAVIS-BACON ACT REQUIREMENTS Note: Where necessary to make the context of these articles applicable to this award, the term "Contractor" 17 shall mean "Recipient" and the term "Subcontractor" shall mean "Subrecipient or Subcontractor" per the following definitions. Recipient means the organization, individual, or other entity that receives an award from DOE and is financially accountable for the use of any DOE funds or property provided for the performance of the project, and is legally responsible for carrying out the terms and conditions of the award. Subrecipient means the legal entity to which a subaward is made and which is accountable to the recipient for the use of the funds provided. The term may include foreign or international organizations (such as agencies of the United Nations). Davis -Bacon Act (a) Definition. --"Site of the work"-- (1) Means-- (i) The primary site of the work. The physical place or places where the construction called for in the award will remain when work on it is completed; and (ii) The secondary site of the work, if any. Any other site where a significant portion of the building or work is constructed, provided that such site is -- (A) Located in the United States; and (B) Established specifically for the performance of the award or project; (2) Except as provided in paragraph (3) of this definition, includes any fabrication plants, mobile factories, batch plants, borrow pits, job headquarters, tool yards, etc., provided-- (i) They are dedicated exclusively, or nearly so, to performance of the award or project; and (ii) They are adjacent or virtually adjacent to the "primary site of the work" as defined in paragraph (a)(1)(i), or the "secondary site of the work" as defined in paragraph (a)(1)(ii) of this definition; (3) Does not include permanent home offices, branch plant establishments, fabrication plants, or tool yards of a Contractor or subcontractor whose locations and continuance in operation are determined wholly without regard to a particular Federal award or project. In addition, fabrication plants, batch plants, borrow pits, job headquarters, yards, etc., of a commercial or material supplier which are established by a supplier of materials for the project before opening of bids and not on the Project site, are not includedin 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 subsequent deduction or rebate on any account (except such payroll deductions as are permitted by regulations issued by the Secretary of Labor under the Copeland Act (29 CFR Part 3)), the full amount of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment computed at rates not less than those contained in the wage determination of the Secretary of Labor which is attached hereto and made a part hereof, or as may be incorporated for a secondary site of the work, regardless of any contractual relationship which may be alleged to exist between the Contractor and such laborers and mechanics. Any wage determination incorporated for a secondary site of the work shall be effective from the first day on which work under the award was performed at that site and shall be incorporated without any adjustment in award price or estimated cost. Laborers employed by the construction Contractor or construction subcontractor that are transporting portions of the building or work between the secondary site of the work and the primary site of the work shall be paid in accordance with the wage determination applicable to 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 than quarterly) under plans, funds, or programs which cover the particular weekly period, are deemed to be constructively made or incurred during such period. (3) Such laborers and mechanics shall be paid not less than the appropriate wage rate and fringe benefits in the wage determination for the classification of work actually performed, without regard to skill, except as provided in the article entitled Apprentices and Trainees. Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for the time actually worked therein; provided, that the employer's payroll records accurately set forth the time spent in each classification in which work is performed. (4) The wage determination (including any additional classifications and wage rates conformed under paragraph (c) of this article) and the Davis -Bacon poster (WH-1321) shall be posted at all times by the Contractor and its subcontractors at the site of the work in a prominent and accessible place where it can be easily seen by the workers. (c) (1) The Contracting Officer shall require that any class of laborers or mechanics which is not listed in the wage determination and which is to be employed under the award shall be classified in conformance with the wage determination. The Contracting Officer shall approve an additional classification and wage rate and fringe benefits therefore only when all the following criteria have been met: (i) The work to be performed by the classification requested is not performed by a classification in the wage determination. (ii) The classification is utilized in the area by the construction industry. (iii) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination. (2) If the Contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives and the Contracting Officer agree on the classification and wage rate (including the amount designated for fringe benefits, where appropriate), a report of the action taken shall be sent by the Contracting Officer to the Administrator of the: Wage and Hour Division Employment Standards Administration U.S. Depaituient 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 their representatives, and the Contracting Officer do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), the Contracting Officer shall refer the questions, including the views of all interested parties and the recommendation of the Contracting Officer, to the Administrator of the Wage and Hour Division for determination. The Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise the Contracting Officer or will notify the Contracting Officer within the 30-day period that additional time is necessary. 19 (4) The wage rate (including fringe benefits, where appropriate) determined pursuant to subparagraphs (c)(2) and (c)(3) of this article shall be paid to all workers performing work in the classification under this award from the first day on which work is performed in the classification. (d) Whenever the minimum wage rate prescribed in the award for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the Contractor shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof. (e) If the Contractor does not make payments to a trustee or other third person, the Contractor may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program; provided, that the Secretary of Labor has found, upon the written request of the Contractor, that the applicable standards of the Davis -Bacon Act have been met. The Secretary of Labor may require the Contractor to set aside in a separate account assets for the meeting of obligations under the plan or program. Rates of Wages - Prior Approval for Proceeding with Davis -Bacon Construction Activities If the Recipient determines at any time that any construction, alteration, or repair activity as defined by 29 CFR 5,2(j) (http://cfr.vlex.com/vid/5-2-definitions-19681309) will be performed during the course of the project, the Recipient shall request approval from the Contracting Officer prior to commencing such work. If the Contracting Officer concurs with the Recipient's determination, the Recipient must receive Contracting Officer approval to proceed with such activity, and must comply with all applicable Davis -Bacon requirements, prior to commencing such work. A modification to the award which incorporates the appropriate Davis -Bacon wage rate determination(s) will constitute the Contracting Officer's approval to proceed. If the Contracting Officer does not concur with the Recipient's determination, the Contracting Officer will so notify the Recipient in writing. 20 Invest ent Grade Audit City fami Vay 20, 2:10 Submitted by: FPL Services, LLC 6001 Village Blvd, West Palm Beach, FL 33407-0768 David Harold Russell, Jr., PE PE#42062 C of A: 9264 CVAA air �cv.� imp ©k :rvicese Where proven meets possible'° sf0 PPL E.3ervgoas, Where proven meets possible' Investment Gracie Audit City of Miami Tab ,,,,,.,,.,., ..,.,,,. , .. v . , =y�� �. .. . . . • . . ... . . E cuti ve Sutjmaty Tab 2 Existing Conditions Tab 3 ... Modeling Methods Tab 4 .. . Energy Conservation Measures Tab 5 . .Utility Data Tab 6 .. Measurement and Verification Appendices Appendix A Utility Data Appendix B Existing Equipment Appendix C Cash Flow Appendix D Drawings Appendix E Commissioning Appendix F Schedule Appendix G Savings Guarantee Appendix H Lighting Analysis Appendix Z Lighting Specs Appendix J Water Analysis Appendix K Water Specs Appendix L HVAC Analysis Appendix M HVAC Specs Appendix N Miscellaneous ECM Analysis Appendix 0 Miscellaneous ECM Specs PPL, Services, Where proven meals possiblo' Investment Grade Audit City ofMiami The federal government launched the Energy Efficiency & Conservation Block Grant (EECBG) program,fu ded-by-the---Ameticall Recovery -&-I ein-uestment-Act.(A.- A), to.b.elp_entiti.es_cleati- and implement strategies to create jobs, reduce total energy use, and improve energy efficiency in the building and transportation sectors. As a 2009 recipient of this grant, the City of Miami committed to: • Improving energy efficiency in the building sector • Reducing fossil filet emissions in a mariner that is environmentally sustainable and, to the maximum extent practicable, maximize benefits for local and regional communities a Reducing the total energy consumption FPL Services, LLC (FPLS) is proud to present this Phase 1 Investment Grade Audit (IGA) to the City of Miami for Energy Efficiency Retrofits and Performance Contracting Services, as specified in the City's EECBG application. In addition to lowering the City's overall energy use by approximately $90,000 per year, the City of Miami will achieve other comnlunitywide economic and environmental benefits. "—we, Ituve been praAgnterl will? a -great opportunity, ilzanlrs to'i,e American Recope,J' and:ReitiuesinientAct {i4JL1 rij, to savejobs, marl invest in k'epino our community competitive;" Mayor. ThomasRe;alada FPLS performed an energy audit for the City of Miami from December 2009 to May 2010. The purpose of this Phase 1 audit was to identify and analyze energy conservation opportunities that would result in the greatest reductions in energy consumption at eleven (11) facilities assigned to this audit. The technologies evaluated during this audit included: • Lighting Systems • LED Exterior Lighting Systems • Occupancy Sensors • Chiller • Air Handling Units • LEED Certification • HVAC Systems • Programmable Thermostats • Outside Air Controls (Demand Control /VAV) • Sports Field Lighting Systems • Photovoltaic Renewable Energy (Solar) • Energy Star Labels Although FPLS evaluated each of the above technologies, several did not produce sufficient energy savings and are therefore not Includled in the final implementation recommendations. It is important to note that while the technologies evaluated did improve equipment efficiencies, the limited run times at some facilities resulted in lower than expected long-term energy savings, i.e., the Artlnie Community Center Theater. Nonetheless, FPLS developed solutions and identified technologies able to produce lst year energy savings of $56,042 and material savings of $2, 731. The following revenue producing conservation measures are recommended for installation/retrofit. Page 1 PPP_ Sery kes. Whera proven nieels posslblr Investment Grade Audit City vfMiami I r ,I tS, + � l+�"s'-i'•s- n, �:r £ 7 fi r..., ,� :s ou, , !c �� NkFv, 1 ��„JLaci l�ll 11� l JE t- I,,I.� Ip tiM Y '. , ._.f h ..: _ I.l. r :,.1.1 `:ADT'I,l..:t.-.,:....I,. ;I.. p.. ,. I S lif.1 ightIr ge i Iad'.?fi'frs " -.5 .. "..r- .ol.l,:... 14 iyf I!,}! _ ri 2 I Uccr{�an.cy,;, rr. - - 14 I,,•77 cm .... r! I,IIU— r.m 'It,.,,.. ,.:- r_:� .IE.. `I: rim:mem/Ai ry i -.d -oi�tro - 4khAr �: If , ye}f. ! r;.lt i ? •� I#.IPlnogna E r naable, yy,� JI ,-}ff i��i e a •-,-, fl ..r ,. Police Headquarters* (removed TRIM —Scope of Work) City Hall Y Fire -Rescue Training Center (removed from Scope of Work) Police North District Substation • Y Y Y Artime Community Center Y Artime Community Center Theater Y Police South District Substation Y Y Rescue Support Service/Fire Garage (removed from Scope of Work) Fire -Rescue Station #1 Y Y Y - Virrick Park Community Center (removed from Scope of Work) Curtis Park (removed from Scope of Work) - The following matrix summarizes the economics for the combined ECMs recommended within this report: 11111� I._ Irll�rl- ,lli i1f,,I, t� illti!'�jhr IE. 1 �kl.. rt.c., Erher '; Cl nseriva#loriP� 1 3' _ `l�j� "• - L4a I .E.''' IN7.- 1 MeasurteA(ECMI} , p. Me, t , a, - w r , 5� - Xy'!-�£' $,�. i' 7--'1,'6' , .i :2i FF fY 1i• ` C. .e "tk_�=: t1 t p'.. 7Ydar•,- "y 1n•ner ;'; { - ,��,�F 9Y,.� ,5-avEings ems# t ,.h;` " c r iNl °it/�`j� I�,.F't r I _ �1 31�'. „ - t Y j {a $ L: . °J,�'r' ,—: 1� SPY IMatemalyll, "Samin-gs- i-r 4� �.. -":, sip lli[111, r!`''RdfJ'ates� rr, NII,� 's .i A($� !11 ��+ �Ea. IF .ice l R1 `v. t•ee-._.: J.I ... '� L . E i i ''" i{•! --rIt.' irnplementat l ::,onrCost�,f 41. t ru�r r(l t :. y�I #�ai] _i. la 3! :n �!LyLlrjj'• # S hr 3;-, W,fA��I ',IF �,Srm le11,, `°Patl.acl � . � At ,e$° � �aytrsj Airy Y litir�.. r -t-,.�r I :+ s: It ]� . y. E ,n ,� al, ..._�. ..- ECM-1 Lighting Retrofit $36,264 $2,731 $3,160 $435,443 11.1 ECM-2 Occupancy Sensors $1,897 $0 NIA $9,047 4.8 ECM-4 Outside Air Controls (IDCV / VAV) $15,695 $0 N/A $180,009 10.8 ECM-4a Programmable Thermostats $1 186 $0 N/A $17,390 14.7 ECM-5 Solar PV* N/A N/A N/A N/A N/A r��(Cr1Y�C°7ost4v4r r,a�rr n �4EI ..r4$�,604Z.I,k� !li f'=fjr' !r�=7.l.lti ,;ha YlI...Ir-t�- r''rt t r[ �1,1,a " ., f r.---r L� .,F ..I.k."I• r r R -r E: I.cY- e�i.� .'!4_!..�. Y ; �a n3^-.-3r�1 t d ' a I i �'II 2fr,3i Ise 3-' ac'75''iF 4y,� ? gy, ,Y f�!"',r,,, �•^r) •S-: I;4$3�,-i6 I lU �r r,$ii:,l�a ` iL � It[. `r.'lCS..ii-P.�"i�. • 1, I .1�`:'S641I889'� i �,^F-1. irjr 7- al l tiV':. ra...� st(�tl=t ,u , `]ItJi, .�.`�_.. *Solar opportunities will be re-evaluated during Phase 2 of the FPLS Investment Grade Audit (IGA). Page 2 Seer !9:%c aes, Where proven meets possible" Investment Grade Audit City of Miami FPLS has prepared rr Gas -glow Statement (please refer to Appendix C) which shows a cr_mi1'rrtive savings over 5 years of $266,380. The City of Miami has indicated that it desires to _fiend this project 100% with American Recovery and Re -investment Act (ARRA) funds. The totaLcostemf_tltis ptol.act.as_sham t. an tlrL.CaslattiL,Statentent L .a„c follows: ECM Cost $641,889 FPL Rebates ($3,160) JGA Cost $100, 000 2 fears of Measurement & $44,810 Verification (M& T? Total Project Cost $783,539 Next Steps: Growing the Savings FPLS has begun discussions with key City Staff to develop strategies aimed at identifying additional technologies and conservation measures that will significantly increase long-term energy savings for the City of Miami. To this aim, the following strategies have been identified: • Expand the number of facilities: by not Limiting the Phase 2 investment grade audit to a specific set of buildings, FPLS will be able to examine, through a preliminary audit, multiple facilities and select the facilities and technologies that will produce the greatest possible energy savings. • Phase 2 expansion of outside air control for Police Headquarters and control system upgrades at the larger facilities, including the Miami Riverside Center. • If financially prudent, fold the renewable energy technologies (photovoltaic panels) developed in Phase 1 into a Phase 2 bundled package solution. FPL Services: A PartnerCommitted to Your Conservation FPLS is a prominent Energy Services Company conunitted to providing energy solutions and savings to our customers. Our expertise in energy conservation, renewable energy and utility rate structures will provide the City of Miami with the confidence of working with a leading and trusted energy partner. Throughout FPL's 84-year history, energy awareness and conservation have been among our top priorities. FPL Group received Florida's "Green to Gold" award in its inaugural year of 2009. Presented by Enterprise Florida, the honor is given to companies or organizations focused on developing green products and advocating sustainable management of resources. FPLS will bring this same commitment to the City of Miami. We are pleased to have this opportunity to partner with the City of Miami in developing and implementing energy efficiency solutions as part of the EECBG program, and look forward to continuing our work with your City staff. Page 3 December 15, 2004 Mr. Manny Rodriguez, P.E,, C.E.M, Regional Sales Manager Florida Power & Light Company 9250 W. Hagler Street Miami, Florida 33174 roe ARI IOI.A City Manager Re: Master Agreement and Schedule 0 - Demand Side Management & Energy Efficiency Services Dear Mr, Rolez'' Enclosed please find one (1) original Master Agreement and Schedule C, executed by the City, for the above mentioned project for your records. Should you have any questions, please contact me at 305-416-1289 or clack- palorninoC ei,miami.fl.us, Sincerely, Charlene Jacks -Palomino, Contracts Compliance Analyst ..- co; Jorge C. Carlo, P.E,, Deputy Director Dianne Johnson, Governmental Affairs and Planning Administrator DEPARTMENT or CAPITAL IMPROVEMENTS =14,1 S.W. 2nd Avenue, 8111 Floor / Mlamr, EL 33130 J (305)j116-12801 Fax: (305i 416-2153 Mailing Address; P.0, Box 330709 Miami, FL 33233.0708 MASTER AGREEMENT FOR DEMAND SIDE MANAGEMENT AND ENERGY EFFICIENCY SERVICES - WITH FLORIDA POWER AND MIGHT COMPANY THIS MASTER AGREEMENT (thls'Agreement') is made and entered into as of Uhe7 th day of December 2004 (the 'Effective Dato'), by and between Florida Power and Light Company (the 'Company") and The City of Mtaml (the 'Customers) (the Company and the Customer each being referred to heroin Individually es e 'Party' and collectively as the 'Parke), with referents to the following: RECITALS A. The Company is in the business of providing demand side management services for customers of Florida Power & Light Company ('FP&L') pursuant to a Company initialed program known as the Energy Efficiency Services Program (the 'Program"); B. The Customer has agreed to pertidpate in the Program by considering Uie furnishing and upgrading of its fad€€ties with energy efficient equipment end ays(enis In order to achieve potential eleotdc demand and energy savings; and G. Pursuant to Ih(s Agreement, the Parties vdsh to set forth their understanding concerning certain energy efficiency services (the 'Services') to be provided by the Company to the Customer under the Program, NOW, THEREFORE, In consideration of the mutual promises and agreements set forth herein, the Parttes; _ Intending to be legally bound, hereby agree as follows; ARTICLE SCOPE OF AGREEMENT AND TERK:—..". •t.01 Scope, Subject to the terms and conditions of., ijs Agreement, the Company shell furnish, and the Customer strait ... purchase and receive, Selves requested by the Customer from Ume to lime with respect to certain specified (*tiles of lho Customer (each, a 'Service Location') and with respect to specific Energy Conservation Opportunities (each, an 'ECO') 0114ataaa 1 identified at a Service Location. Tho Services to bo furnished by the Company with respect to each Service Location and wiUi respect to ECOs Identified at a Service Location shall bo set forth In a supplement to this Agreement (each, a'Sup pimento! Agreement') which will be mutually agreed upon and executed by both Parties prior to the Company commencing work at any designated Service Location, Each Supplemental Agreement (a ,form of which is attached as Exhibit A to thls Agreement) shalt cover one or more Service Locations of the Customer and shall consist of the following forms and schedules; Form of Supplemental Agreement Schedule A - Specification of Service Locatlon(s) Schedule B -Form of Audit Request Schedule C - Form of Agreement for Feasibility Study Schedule D -Form of Engineering and Design Order Schedule E-Form of Construction and implementation Order Schedule F - Form of Cello -ate of Final Acceptance Schedule G - Form of Payment Agreement Upon execution of a Supplemental Agreement or any Sdhedufe thereto by Ole Parties, such Supplemental Agreement or Schedule shell bo binding upon the Parties and shall be incorporated herein by reference as part of this Agreement. In the event of any conflict between' this Agreement and a Supplemental Agreement or Schedule thereto, the terms and provisions of this A reomenl, as emended from lime to, Ume, shall control, and In the event cf any conflict between or among a Supplemental. Agreement and the Scliedutes Ejfele, the document df the latest date mutually agreed upon.by IllaPrarties shalloontrol.... . _:_ .. • 'Elie vjorft tit In erfciriYied Invbivee.a thjfo- Ijasdd'biocess. .: Phase :-llioprovisloft,of.aileihergyagdiilslu¢y.peY chedilieCof all;;tho 1adil)gs bo111 conslde€ed tor7 ie application oprenergy �� :. conservalldn meastiies, as ar3.sf 6nldd i the �Ustt}titer. Ih(s midi( - pha .hail e..self #ititded by+ , orppany and'shell result In a' ' written report presented to the City, . • Phase 2 - My and all audit costs Brill be applied toward tilts phase and shall encompass the acquisition and installation of the selected rintLrrtpfrM. conservation and facility(s) improvement measures according to Schedules C and E, 1.02 Tenn, This Agreement shall commence upon the Motive Dais end shall continue In effect for ten (10) years until written notice of termination by either Party In accordance with the provisions of Ariicie 15 hereof; provided that upon such written notice of termination, portions of this Agreement end of one or more Supplemental Agreements previously entered into by tho Parties shall remain In effect as sal forth In Mote 15, The Oily will have the option to extend the term for one (1) additional five (5) year period, 1.03 interim Period. Subject to tiro following sentence, the term of this Agreement shall commence with the date of execution by the parties (the Effective Dale). All energy savings achieved during the Interim Period hill bo fully credited to the Customer, Following execution, the Agreement shall be binding on the parties. The period between execution of the Agreement and EGO implementation acceptance by the Customer shall be known as the "Interim Period', 1.04 Incorporation by Reference. City of Miami RFQ 01- 02.224 for Energy Performance Savings Contracting Services, and the Company's Response, are deemed as being Incorporated by reference herein as if set forth In bull. These documents ero suppfenrenial terms to this agreement. In the ovent of an express conflict between arts Agreement and these documents this Agreement will centre, ARTICLE 2 ENEROYAUDIT AND FEASIBILITY STUDY 2.01 initiation of Audit, From llnre to lime upon the request of the Customer, the Company will meet with the Customer's energy personnel to Identify Service Locations fo. be Included In a Company assisted' energy ef€icloncy,audit -....: The Parties will agree upon mulualiy::acceptable audit .:•• procedures and schedules, lden fly "energy savings• leehnoloeles to be reviewed, determine ass .Payback cri[erla - - dosirad by the Customerwith respect to new installations, and:„c.s- agree upon other matters with respect to the audit, all as sets-: forth In a Supplemental Agreement entered Into by the Pantos •_. et such lime, which shall Include an executed Sehedub A (Specification of Service Locafon(s)) and an executed Schedule B (Audit Request). All of the Services to bo provided by the Company In performing or asslsltng In such audit shall be performed by the Company al no cost to the 2 Customer in accordance with the reruns and conditions of such Supplemental Agreement and Schedules. • 2.02 Audit Report, Upon completion of an audit conducted by the Parties pursuant to Section 2,01, the Company shall submit to the Customer an audit report (an 'Audit Report`) identifying potential ECOs, If any, at the Customers Service Location(s) which the Company believes may be cost effective to implement and which may meet the Customer's payback criteria, as set forth In the Audit Request, The Company shall designate in the Audi( Report those ECOs, If any, for which it recommends that a detailed feasibility study be performed, and the Customer shall have thirty (30) days from receipt of the Audit Report to notify the Company whether the Customer wishes to receive a feasibility study proposal from the Company cdncerning such ECOs. If the Customer falls to request such a proposal ydthin the thirty {30) day period, the Company's obligations under the Supplemental Agreement covoring the Service Location(s) of the audit shall terminate, without further liability of either Party thereunder, If the Customer requests a feasibility study proposal within such period, then the Company shall submit such a proposal to the Customer, which shall Include a designation of the Services to be provided, the technologies to be Included in the study and the compensation to be paid to the Company for such Sordees. The proposal also shall Include a completed Schedule C (Agreement for Feasibility Study) of the Supplemental Agreement, to be executed by the Customer and returned to the Company within thirty (30) days of the Customer's receipt of the proposal. If the Customer fails io execute and return to the Company the Schedule C within such period, the Company's obligations under the Supplemental Agreement shall terminate, without further ltabiil(y of either Party thereunder. If the Customer executes and returns the schedule C, Then the Company shall perform the feasibility study in accordance with the terms thereof. 2,03 Feasibility Report, Pursuant to. a feasibility study performed. by the Company, as sot forth In. Sooton 2,02,. the CemVaiiy •sliall°=teettinihond' ECtss for lmpler`nk alon;.a(- the SeivJca Locatloih(s) surv®yed••based•on•a•llfe•oyele cost:anstysis and"esfiUa(Yd e'nergysavings•faroacth. ECO, The=Companyss�rell firb are;and'sUbmlLutd•lhe•Customor�awilt€en-rdpaft'fa 'Feasibillly.:,,. ke'porf') 'spo fyany' eac(i"rodonh i nded''ECO- afid` providing:,%or... ; each an e.strnate of (a) the-5 p8ted 1n7pli;rnenitafrchh cost. (b)';lhe,..., anitclkated'1Ife.-4cle cost savings, and (o)the estimated utning.for Implementation, all at which shall be estimates only, based on the Company's reasonable assumptions. In the case of each EGO exanhtned in a Feasibility Report, tho Company shall provide sufficient Information to determine whether the Customer's payback criteria described In Schedule C (Agreement for Feasibility Study) of the Supplemental Agreement are expected to .alit 'rap lredl be met based on Ilhe Company's estimates. subject Io the provisions of Schedule C, if lire Feasibility Report submitted by the Company does not Identify et least one potential ECO which meets the Customers agreed upon payback criteria, [he Customer shall be under no obligation to pay iho Company for the Feasibility Report. The Company shall bill the direct cost associated with the Feasibility Report plus .reasonable overhead/profit; net le exceed five percent (5%) which Is acceptable to Customer. 2.04 Engineering and Deslen Order, The Customer shall have thirty (30) days following receipt of a Feasibility Report to determine If it wishes to proceed with the intpiemonlalfon of any or alter the ECOs recommended by the Company and to supply the Company with a its! of the ECOs approved for further action by the Company. If the Customer fails to supply the Company with a list of such approved ECOs within such thirty (30) day puled, the Company's obligations under the applicable Supplemental Agreement shall terminate, without further liability of the Company, and the Customer shall pay the Company for the feasibility study In accordance with the provisions of Schedule 0 of lite Supplemental Agreement (subject to the terms and conditions thereof). If, however, the Customer wishes to proceed wilh (he implementation of ono or more ECOs and provides the Company AN a list of approved ECOs in accordance with the foregoing, the Company shall provide the Customer with a proposal to develop the design and detailed cost estimate for each approved ECO, which proposal shall include all Services to be performed by the Company in order to quote a definitive fixed price for the installation of each such approved ECO and the compensation to be paid to the Company for such Services. The proposal also shall Include a completed Schedule D (Engineering and Design Order) of the Supplemental Agreement, to be executed by the Customer and returned to the Company within thirty (30) days of the Customers receipt of the proposal. If the Customer falls.lo execute and returnto the Company the .Scheduie D hgltttln such period, the Company's obligations under the applicable Supplemental Agreement shalt terminate, without Whet. liability of Use Company, and the Customer shall pay.—U e Company for the feasibility study in accordance vrilh,,llne• provisions of Schedule C of the Supplemental Agreement. :If the Customer executes and returns the Schedule D, then rho Company shall perform engineering and design services in accordance with the terms thereof. Ntltnim[+ ARTICLE 3 DESIGN AND INSTALLATION 3.01 Design Services and Estimate, Unless otherwise set forth in Schedule D, the Company shall prepare and develop, or cause to be prepared and developed, designs, specifications and installation drawings for each approved ECO identified in Schedule D and shall prepare, through solicitation of bids or otherwise, a detailed cost estimate and proposed Implementation schedule for each such ECO. The Company shalt coordinate its design and engineering work 'with the Customer's energy personnel, and a Joint: technical review shall be conducted with the Customer, as set forth In Schedule D, when the design documents are approxlmately 35% and 95% complete, Designs and specifications shall comply with all applicable laws, codes, standards, regulations and permits (If any) and shalt be available for Inspection by the Customer al any time during normal business hours upon reasonable advance notice, Upon [he completion of design and development of a final cost estimate for each approved ECO, the Company shall subunit to the Customer a design document (a 'Design Document) and fixed -price Installation proposal (an 'Installation Price Proposal`), as set forth In Schedule D of the Supplemental Agreement. 3,02 Construction and Implementation Order. lf, on the basis of the Company's submission, the Customer wishes to proceed hdth the installation and construction of one or more ECOs in accordance with the Design Document and Installation Price Proposal, the Customer shall notify the Company thereof within thirty (30) days of the receipt of such submission, and the Parties shall thereupon complete and execute a Schedule E (Construction and implementation Order) of the Supplemental Agreement providing for such work. The Schedule E shall include the Services to bo performed by the Company and the price to be paid by the Customer with respect to each such installed ECO. Prior to executing a Schedule E, the Company will consult with the Customer regarding the soleolion of any third party contractors .to be retained by the • --Company .fo perform Installation or. construction vrorit at • the Customere service Location(s) (eac h,`4 an `lrtipiementatlon Contractors), and the -Company sttallnot select an Implementation o0enlracter •to• which- tfter.Custorndrl:iiaa- al leas -arable 'tlbedton " . (provided;.ltovfever, that any Increased cost resitting from' l he'need -- :e.:,10.seiadUn'a[teutatve'lrnplementallohi Contractbr shall belo e'by' the Gustbatef),=if:the Customer does not Irish to proceed-i,rJii 'the " ....installation of any. EGO In accordance with the•Deslgn Document and installation Price Proposal, or if the Parties fall to complole and execute a Schedule E vriUhln thirty (30) days following the date of the submission of the Design Document and lnstai[aUon Price Proposal 3 raiAtt„ Petpkr{di It,. to Ike Customer, then the Company's obligations under the applicable Supplemental Agreement shall terminate, without further liability of Rio Company, and the Customer shall pay the Company for its Services la accordance with the provisions of ScheduleD of the Supplemenlet Agreement. If the Customer elects to proceed with an EGO end the Parties enter Into a Schedule in accordance with the foregoing, then the Company shalt provide construction and Installation services in accordance willi the provisions thereof, 3.03 Elimination of Schedules. Notwithstanding any provision in lilts Agreement le the contrary, the Parties may elect, by mutual agreement, to eliminate and forego any of the steps outlined above and set forth in Schedules 8, 0, and D of the Supplemental Agreement; and, In lieu thereof, the Parties may agree to enter directly Into a Sdiedule E (Construction and implementation Order) on Ilia basis of a fixed price proposal for ono or more ECO& submitted by the Company to the Customer for the Service Location(s) se( forth In Schedule A. Such an election may occur, for example, In the ease of a standard E00 identified by the Company in an Audit Report, which Is of such a nature (hat It does not require a feasibility study or design and engineering services Rn order for the Company to provide an estimate and quote a 5xed•price proposal, or In order for the Customer to request that the ECO be Implemented, In such a ease, a Supplemental Agreement may consist of some but not all of the Schedules listed In Section 1,01 of this legreenient, and, upon entering into a Schedule E of He Supplemental Agreement, the Parties shall be deemed to have waived the preceding provisions of this Agreement which are no longer applicable, 3.04 J:lnanclncl, Financing (or both Phase; and II shall be arranged by the Company, and pod from energy and operational savings, with 100% of ttie savings above the guaranteed amount to be the sole property of lRie Customer. There shall be no initial capital cost to the Customer. The Customer, however, reserves the unconditional right to .ha alternate funding should 1t so desire during the term of this agreement. The design, acquisition, and installation of energy measures should be structured so that the energy savings, maintenance savings, and avoided capital expeniilturds achieved by the Installed energy measures are sufficionrie cover the entire 100 percent (100%) of all project costs for the duratioii of this Arreernen(, In accordance with, 489,145„ Florida Statutes ('F,S.'), as amended .Energy and maintenance savings must result through ofiidonoy improvements designed to maintain existing or Improved por(omianco levels. fn the event that the actual savings are foss than do guaranteed savings, the Company sliatl provide cash reconciliation to do ,dJon,mp Customer of the difference behveen guaranteed and actual savings. If tho actual savings are greater then the guaranteed savings, the City will have complete ownership of any surplus savings. The Company's guarantee shall be a first party direct guarantee from do Company to the Customer. No third party guarantee, such as a non• contractor Insurance company, shall be accepted. As set forth in Schedule E of the Supplemental Agreement, the Company may, If the Customer meets the Company's credit criteria, provide the Customer the option of obtaining Company furnished financing for installed ECOs, in i'rhich case the Customer shall compensate the Company for Its Services wills respect to such installed ECOs by means of a monthly Service Charge for a period of lime (the `Payback Period') agreed to by the Parties. If offered by the Company and requested by the Customer, the terms and conditions of such Company furnished financing, Including do amount of the monthly Service Charge and term of the Payback Period, shall be agreed to by the Paulo and set forth in a Sdiedule G (Payment Agreement) of the Supplemental Agreement, which, together with Exhibit A (Customer Consent) to such Payment Agreement, shall be executed by the Customer and returned to the Company concurrently with the execution and return of Schedule E (Construction and Implementation Order) of the Supplemental Agreement. The Customer acknowledges and agrees that the Company, with tie Cus{onier's written consent, may transfer or assign, for Aeanccng purposes, to one or more asslgneas, all or any part of the Company's right to receive payments under any Schedule G, and, In connection Herewith, the Customer agrees, at the rearrest of the Company or any assignee, to execute and deliver, to the extent permitted by applicable law, any and ail consents, acknowledgments, following the Customer's evritton concurrence to such assignment. Payment. Monthly payments shall be made to the Company or alternate financing entity, based soteiy upon energy savings, for the terns of fills agreement. Such payments shalt not exceed gto total energy and operational savings reeked under RRils•prograni for this agreement. "Reports. and Moihitoring. T'he'.'Cornpriny.•shall .Provide the • Customer -with a dieasurefrtent"end veritiCatbr� plan that refiecis-the; ••'energy uttzaton_by'ti'e-occupanis_of-(fio facllites:covered.by.the: .- -agreemenl.•• The-!Ran'shalt include..but not he limped. to regular._ • rvirtilen reports.tazriier7fs'ure=:and :verily -Co si iiifigs- provided by the Company -to iha Customer, and_ city -and- all. projected • savings, These savings guarantees shall be monitored at least gciarirosly by the Company and the Customer, and reconciled 1n wailing on en annual basis, commencing one year from the date of completion of installation. 4 .n,le_PmItr dr Agra meat Responsibility. The Company shall be required to assume Total responsibility for all services offered In this Agreement, and shall be considered the prime contractor and the sole point of contact with regard to all contractual matters (including warranties (excluding extended warranties), maintenance covered under as FPL Maintenance Agreement, and guarantee monitoring), 3.06 Con stem lion and lmnlenmehmtation Services Subject to the provisions of Section 3.02, the Company may employ one or more Implementation Contractors In the performance of Services under Schedule E, which implementation Contractors shell be the sole responsibility of the Company and shag have no direct contractual relationship with the Customer. in accordance with Schedule E, the Company end Its Implementation Contractors shall (a) procure, construct and Install all materials, equipment and systems `required to Implement each ECO fn accordance with the Design Documents, (b) provide and pay for all labor and support services necessary to perform such work, (o) supply to the Customer copies of any operation and maintenance manuals available from the manufacturers, vendors and suppliers of equipment or systems comprising a part of any Instilled ECO, (d) provide on•sit° training for a reasonable number of the Customers designated operating personnel, If such training Is reasonably faqulred or necessary for the proper oporaton and maintenance of any complex equipment or system comprising a part of any installed ECO, and (e) arrange for the final Inspection and checc•out of each Instated ECO. In connection with (raining provided by ire Company, the Customer shall make available training areas al the Customer's Service LooaUon(s), training aids and Customer's operating personnel during normal business hours, as sot forth to Schedule E. (I) Company 'Avg( hold harmless, defend and Indemnify the customer from any claims, actions or demands of Implementation Contractors. Upon completion of constntoUon and tnstatiaton, the Pastes shalt conduct a final inspection of each Instaited ECO and If the work Is found to be complete,;the! Customer shall execute and return to- 'the Curpatmy a - Schedule F (Certificate of Final e• Acceptance)' — of . the. Supplemental Agreement, mvithin twenty (20) days following receipt by the Customer of a notice of subs(antai i inmpiaton.,. from the Company. If, upon Inspection, the work Is not founhtlo.., . be substantially complete, or If any material defect or deficiency--.. exists, than the Customer shall so notify the Company es sat font In Schedule E and the Company shall perform any necessary corrections prior to the Customer executing and retuming a Schedule F. The date upon which Uhe Customer Issues, or is deemed pursuant to Schedule E to Issue, a Schedule. F with respect to an ECO shall be reterred to herein as the 'Final Acceptance pate" for such EGO. (g) The Company shall be responsible for compliance with all applicable cedes, statutes, and permitting requirements. All englneenng, design, Installation, and construction work shall be dono by contractors properly Itcensed, certified, and bonded to perform such work in the Stale of Florida. 3,06 Enorrfy Savings Guarantee, Company has formulated and guaranteed the level of energy savings which will be achieved as a result of the Instalaion and operation of the Equipment and provision of services provided for In This Agreement, The 'Energy Savings Guarantee' is set forth In Sohadute C and In accordance with Exhibit 8 enelled 'Standards of Comfort." The energy savings guarantee shall provide sufficient cash flow for tho Customer to realize a minimum 10% level of savings. My savings realized wlhieh exceeds the guaranteed amount shall be and remain the sole property of the Customer. 3.07 Fees, The fees to be paid by the Customer for the Cons&ucUon Phase of this Agreement shall be calculated as follows: Total Project Cost per Schedules C and E • Less FPL Rebates (FPL rebate assigned to Company as adjusted by FPL) equals Cost of Project to Customer Progress payments will be made to Company per Progress Payment Schedule of Values provided In Schedule E. 3:08 Fees and Savings Actual energy savings achieved by Company shall be sufficient to cover the amount guaranteed, as adjusted by the baseline w it h respect to Company's seMces. 3,09 Dtlling Information Procedure. Billing shall occur only after the start of the Effective Date as that term Is defined In the Recitals of this Agreement Payments due to Company shall be calculated each month during -the Interim Period In the following manner: _ . 3.D9-1 Company. shall subniit'delalte3 Invoices (o the_ Custanietriln care•of the Contract Adnmintsfra(or. •Thri pstormaree §Ball be'-'afforded''(30) .days to roVievre•lfaiimmoni,::npprove,.-• payment.of same, euul pay Ume.Company. .,,e, ee,„,, . 3,10 Foos for flfalnfenance..Equfpment service end maintenance • performed by the' Company dad referenced In' Schedule C will be payable in accordance with the Flnendal Cash Flow Analysis Annual r77ylt_Fre-pawl Service Cost Column. The amount due wilt be the amount stated in year 1, and Then escalated by the Consumer Price index with rho cap. 3,11 Annual Review and Reconciliation. Within 60 days of the end of each hretve-month period, Company and Customer shall review lho guaranteed and actual energy savings and any payments made by Customer, and shall determine the annual net savings and/or payment figures. In the event Urat actual savings are loss than the guaranteed savings, the Company v411 pay the shortfall to the Customer, in accordance with F.S, 469.145. Company shall make payments of any shortfalls to Customer within 45 days after the savings guarantee is reconciled. Late payments shall accrue simple interest of twelve (12%) percent per annum. 3,12 Verification of Enemy Savings. if applicable, the Design Documents shall set forth appropriate systems and procedures for measuring and verifying the actual energy savings resetting from the Implementation of an ECO. At the Customer's request, the Company shall assist the Customer In measuring and verifying such energy savings with respect to each ECO following the Final Acceptance Date. The Company's compensation for such Services shall be Included In the compensation to be paid to the Company pursuant to Schedule E. ARTICLE 4 WARRANTY 4.01 General Warranty. The Company warrants to the Cuslomor that the SerAcos performed by the Company under Hs Agreement and under.any Supplemental Agreemont shall be performed with the degree of skill and care (hat is required by current good and sound professional procedures and practices, and in conformance with generally accopled industry standards prevailing at the time the Services are performed. The Company further warrants that all equipment and materials provided and instated by the Company In•oonneotion with Cite ''` lrhpfemenlallon of eny ECO hereunder shalt be new, shall be free from significant defects in design, engineering, materials;?' construction and workmanship, and shall eonfomh in all matodal respects with all requirements of law and the contract"•" • warantes, the final Design Documents applicable to such ECO'"••• and all descriptions set forth theteln, applicable engineering' and conslnsaUon codes and standards, and all other requirements of this Agreement and of the applicable Supplemental Agreement. 4.02 Equipment Warranty Company covenants and agrees that all equipment installed as part of this Agreement is new, In elilree,nu good and proper working condition and protected by appropriate written warranties covering all parts. Company further agrees to deliver to Customer for Inspection and approval all such written warranties; during the warranty period described In Section 4.03, to pursue rights and remedies against manufacturer and seller of the equipment under the warranties in the event of equipment malfunction or improper or defective function, and defects In parts, lvorkmenship and performance; to notify Customer whenever defects In equipment parts or performance occur which give rise to such rights and remedies and hose rights and remedies are exercised by Company. 4,03 Warranty Period, The warranty period for the warranties set forth in Section 4.01 shall extend, vdth respect to each Installed ECO, for period of two (2) years following the substanUal completion date for such EGO, The warranty period for any Services performed by the Company hereunder- or under any Supplemental Anreenhenl which do not result In the lnstaliaton or full Implementation of an ECO shall extend fora period of one (1) year following the date of completion of such Services. 4.04 Remedies. The Customer shall promptly notify the Company In writing of the discovery during the applicable warranty period of any breach of the Company's warranties under Section 4.01, Including any defects In tho nquipmant or materials Installed as pert of an ECO. As the Customer's sole and exclusive remedy for any such breach of the Company's warranlles, the Company shall, at Its own cost and expense, as soon as reasonably possible following the Companys recelpt of notice of any broach of warranty or the Company's otherwise obtaining knowledge of eny breach of warranty, perform any necessary services to correct any deficiencies and repair or, if necessary, replace, rework and retest (If appropriate) defective equipment and construction workmanship and/or provide at the Company's expense any changes, modifications or additions to the work which. are necessary due to a falters to perform any Services hereunder and furnish (ho equipment and materials in accordance with the standards sot forth In Section 4,of�':A),Icoste,. Incidental to the Company a rev(ork and;t®stag thgrggf spat -be borm9 by .the Company, The •Company shall use •roasonable efforts to porferrf such femedial;acUons and mane arty tests l,.such.a,ifianner., and.a.l such.a driiesa ae,te rninlriif2.e disrrijitan pf•rtgrmal operations :al Cho, u5lcrnera.Somtca.locp on; .1i;tfre •Company fells.io correc{ . de(ectfv,Q_vr_nonccn(orrnieg.Services oe inaterlals vlltrin a reaSonaltle time.after'wrtteii:rioifi ..frorit.Uio Customerte Customer may correct and, If necessary, retest the same al the Company's expense. 4.05 Vendor Warranties. Without tlmltng Ute Company's warranty set forth in Section 4.01, the Company, In procuring materials and equipment for an ECO, shall use reasonable efforts to otie ?repredr obtain standard vendor warranties from the supplier or Implementation Contractor for the benefit of the Company and the Customer, and whore practical shall attempt to obtain warranty periods of longer than one (1) year from rho substantial acceptance date, if such extended warranty periods do not increase the Company's procurement costs. The Customer shall be entitled to the benefit of any vendor or impfementat on Contractor warranties obtained which are better or of longer duration than those provided by the Company hereunder. If any such warranties are for a period longer than the Company's warranties, they shall be transferred to the Cuslonter al the end of Ute Company's warranty period hereunder, and the Company shall thereafter acl, at the Customers request and expense, as liaison or the Customer with such vendors or implementation Contreelors In prosecuting any warranty claims. 4,06 Company Prtneloally Responsible. Nctwitlis1eadfng Section 4.04, the Company shall have primary liability with respect to ail Company warranties set forth In Seolion 4,01, indtiding warranties with rospeot to materials and equipment, whether or not any event or defect is also covered by a vendor or Implementation Contractor warranty, and the Customer need only Zook to the Company for corrective action pursuant to Section 4,03; provided that the Company shall receive (he benefit of any vendor or implementation Contraotor warranties, 4.07 Warranty Exclusions, The liabilities and obligations of the Company under this Mole 4 do not extend to any repairs, adjustments, a€teraUons, replacements or maintenance vdilch may be required as a result of wear and tear In the operation or use of an installed EGO, or as a result of the Customer's failure to operate or maintain an ECO In accordance with the operating manuals or Instructions supplied by Ute Company, or In accordance with the training provided by the Company to Customer's personnel. 4.08 No implied Warranties. Except as expressly provided , In this arttole 4, the company makes no warranties or guarantees, express or Implied, concerning rho services'er any ECO, and the company disclalnts any warranty Implied by law, Including implied warranties of merchantability or fitness:. for a pas -titular purpose and implied warranties of custom or -.- usage. The company makes no warranties or guarantees of any nature whatsoever concerning the actual reduction In the customer's energy usage as a result of the Installation and operatlon of any COE, and the customer acknowledges and agrees that any estimated savings, estimated load reduclions or other simltar projeclions supplied or made by the company shall be for Informational purposes only and shall not constitute a warranty or guarantoe by the company of the actual savings or load reduction, If any, which may be experienced by the customer., ARTICLE 5 STANDARDS OF COMFORT 5.01 Company shall maintain tha Equipmentin a manner which will provide the standards of heating, cooling, hot water, and lighting es described In Exhibit B. ARTICLE 6 LIMITATION OF THE COMPANY'S LIABILITY 6,01 No On_eratlnq or Maintenance Responsibility, Except as otherwise specifically provided In Article 4, the Company shall have no responsibility or liability with respect to any ECO after he substantial completion date thereof, and the Customer shall be solely responsible for the operation, maintenance and utilization of each ECO after such date. Without limiting the generality of the foregoing, no payment obligation of the Customer hereunder, or under -any Supplemental Agreement or Schedule, shall be affected by the actual performance of any ECO following the Final Acceptance Cate, end the Service Charge to be paid by the Customer pursuant to Schedule G of any Supplemental Agreement shalt not be measured or determined In any manner by tho actual amount of energy savings or load reduction resulting from the Implementation or operation of any EGO. 0.02 Consequential Damages, In no event shall the Company, Its officers, directors, partners, shareholders, employees or affiliates, or any Implementation Contractor or Its employees or affiliates, be fiebte to the Customer for special, Indirect, exemplary, punitive or consequential damages of any nature whatsoever connected with or rosulUrtg.from the Service's.nr from perforrn8rice or nataporfomiarice of this,., reani.ent_,4r a4y Strpplententa1,enant or Sc1odiJle, •'• Yielding_tfamages or claims in thenature.oAiref lostrevenue,-incotne.or • profits, loss. of Lisa,.or,cost;af oapltal, iirespeolivo of;yrhethor'it'i t- damages are reasonably foreeeeab[o and Irrespective or whetter _ _' sucheeiplms. •are .based. upon:.negligonct,,.sirict: IlabilIty, crynttAN; - wopotaUon of law or elhonvlsa..., . 7 0.03 Intent, Except in oases of willful ntlsconduol, the Parties Intend that the waivers and disclaimers of liability, releases from Uablllly, limitations and apportionments of liability, and exclusive rAirt rrtprud■ remedy provisions expressed throughout This Agreement and in any Supplemental Agreement or Schedule shall apply even in Me event of the fault, negligence (fin whole or in part), strict liability or breach of contract of the person released or whose liability is waived, disclaimed, limited, apportioned or fixed by such remedy provision, and shall extend to such person's affiliates and to its and their partners, shareholders, directors, officers, employees, contractors and agents, The Parties also Intend and agree That such provisions shall continue In full force and effect notwithstanding the termination, suspension, cancellation or rescission of this Agreement, any Supplemental Agreement, Schedu[e or any other agreement entered Into pursuant hereto. No officer, director, employee, agent or other Individual rspresonlative of either Party shall be personally respensib€e for any liability arising under this Agreement or any Supplemental Agreement or Schedule, 0,04 Remedies, Mere remedies are expross[y afforded by this Agreement or any Supplemental Agreement or Schedule with respect to the Services provided by tho Company, such remedies are intended by the Parties to be the solo and exclusive romedtes of the Customer for the award of damages from the Company arising out of or In connecUon with the Services or this Agreement. The parties reserve any remedy otherwise available at law or In equity, Including, without limitation, the ability to enforce the terms of the agreement such as specific performance or, to seek reformation or rescission of Uils agreement, as warranted and as allowed by laws of the State of Florida, ARTICLE 7 ACCESS AND INFORMATION 7.01 Access to Service Locnttons. Upon Uho request of the Company, the Customer shall provide the Company and Its Implementation Contractors strilh reasonable access to the Service Location(s) to enable the Company to perform all Services hereunder and under any Supplemental Agreeirt5nt and to verify and confirm the operation of any installed' ECO following (he Final Acceptance Date; The Company also shall have access to the Service Locations) during the warranty period specified In Mich 4 for purposes of perfor ming..Its. obligations thereunder. The Customer snail provide "the Company with storage and Iaydown areas at the Service Locaton(s), as applicable, during the InslatfaUon of ECOs and shalt make available any construction power and outer uUiltes required by the Company and Its Implementation Contractors to perform the Services, The Company and its implementation Contractors shall observe all of the Customer's safety and security procedures al the Service Locations), to the extent made known to the Company, and shalt not unreasonably •fN,nan,u disturb or interrupt the Customer's operations et such iocation(s). 7.02 information. The Customer shall promptly comply with all reasonable requests by the Company for information *oncoming Uhe Service Localion(s), es required by the Company to perform the Services, and Information to enable the Company to determine the acluai energy savings and load reduction achieved at the Service Location(a) as a result of ECO Implementation. The Customer also shall provide the Company with any information and other assistance reasonably required to vodfy to the Florida Public Service Commission (the 'Commission') the demand and energy savings achieved and the related costs thereof, The Customer agrees that the Company may disclose such Information obtained by the Company or provided by the Customer pursuant to this Agreement or any Supplemental Agreement to the Commission and to any other public authority having Jurisdiction. ARTICLE 8 DOCUMENTS AND DATA 8.01 Ownership Rights. Any Audit Report, Feasibility Study, Design Document or other report or document fumfshed or to be furnished by the Company pursuant to Uhls Agreement or any Supplemental Agreement shaft become the property of the Customer, upon payment, and may bo used by the Customer for the operation, maintenance, repair or alteration of any COEInstalled by the Company. Notwithstanding the foregoing, the Customer shaii not acquire any rights or Interest with respect to the Company's or lis Implementation Contractors' proprietary technology, processes or computer software that maybe used In ccnn8Cton with the Services or the supply of equipment and materials hereunder. 8.02 Use of Documents After Termination. If any Supplemental Agreement -or Schedule is terminated, in whole or In part, by the Customer prior to completion of the Installation of any ECO, or the Customer chooses not to proceed with the implementation- of an E0 as set felt, herein, then the Customer shalt be entitled to use •,.fgr- Its .own purposes any Audit Deport, Feasibility' Study, Design Document outlier, furnished by Uhe.Company hereunder; —Upon payment b14ho Company, „ -- . - • -. . ARTICLE 9 _ INSURANCE 9.01 Insuranco to be Maintained by he Company. At any Ume - that the Company Is performing Services under this Agreement or under any Supplemental Agreement at any Customer $erica Location, the Company shall keep and maintain, with Insurers of recognized responsibility, tho following Insurance, width shalt Include the minimum coverages and limns set forth below; W11e PIN pare.]. 9,01-1 Worker's Compensation fnsurance covering all of the Company°s employees as required by law, with an amount not lass than $500,000 per occurrence, • 9.01-2 Commercial General Liability Insurance, Including contractual liability, premises and operations, broad -form properly damage, products/completed operations, independent conlraclor, and personal Injury averages, vrith a limit of not less than $2,000,000 for each occurrence, combined stogie that and 9,01-3 Comprehensive Automobile Liability Insurance, including coverage for liability arising out of the usa of awned, non -owned, leased or hired automobiles, for both bodily Injury and property damage In accordance with state legal requirements, having not loss than $2,000,000 combined single limit per cccairronce. 9.01.4 Professional Liability — minimum of $1,000,000 Combined Stngfe Limit per calm, with a $2,000,000 General Aggregate limit. Insurance patcies to be carded under this agreement shall not be materially changed or cancelled, without thirty (30) days prior written notification to the Customer. 9,02 2oilcv Requirements. Any insurance carried by the Customer vritl respect to the Services of the Company shall bo deemed to be excess and not contributory insurance, and the Company's Insurance to be provided hereunder shall be primary to the Customer's coverage for all purposes, despite any conflicting provisions In the policies to the contrary. No policy maintained by the Company hereunder shall be subject to cancellation or reduction In coverage or amount, except upon thirty (30) days prior written notice thereof (ten (1O) days for. non-payment of premiums) to the Customer at Its addres9'set forth In Section 18,01. The Ccmpany. shall provide. prod -of' coverage to the Customer with respect, to the.Instirarice- requfred to be mnInlatned hereunder: al 'any time upon lie' Customer's roquosL 0.03 tmplemontallon Contractor Insurance, The Company shalt require such liability Insurance of its ImplomenlaUon Contractors performing services al a Service Location as shall bo reasonable and In accordance vdth Industry practices In relation to the work or other items being provided by each such implementation Contractor, Upon the Customer's request, the Company shall provide {he Customer evidence of the insurance coverages carried by any Implementation Contractor. 9.04 Solf•lnsurance The Company reserves the right to self - Insure any obligations of Article 9. ARTICLE '10 1NDEhiNJFICATION 10.01 The Company shall indemnify and hold harmless the Customer and is officers, employees, agents and instrumental{tfes from any and all liability, losses or damages, Including attorneys' lees and costs of defense, which Iho Customer or Its officers, employees, agents or lns1rumentaUUes may Incur as a result of claims, demands, suns, causes of actions or proceedings of any kind or nature arising out of, relating to or resulting from the performanco of this Agreement by the Company or its employees, agents, servants, partners principals or subcontractors, except and solely to the extent such Injury, death, or damage Is not caused by the Customer. Company shall pay all claims and losses In connection therewith and shall Investigate and defend all claims, sults or actions of any kind or nature In the name of the Customer, where applicable, Including appellate proceedings, and shall pay ail costa, Judgments, and attorneys fees which may issue thereon, Company expressly understands and agrees that any Insurance protection required by Hs Agreement ar othonvise provided by Company shall In no way limit the responsibility to Indemnify, keep and save harmless and defend the Customer or Its officers, employees, agents and Instrumentalities as herein provided, The Customer does Thereby agroo to indemnify and hold harmless the Company to the extent and whin the !Imitations of Section 768.28 Florida Statute, subject to the provisions of that Statute whereby the Customer shall not be held liable to pay a personal injury or property damage ctalm or judgment by any one person which exceeds the surn o€$100,000, or any claim or judgments or ' 'portions thereof, Which, vireo, iola[ed.-wllli all:bther occurrence, exceeds the sum of'$200,000 from anyand all personal Injury or, property damage claims, liabilities, losses and causes"bf action which may arise solely as 'a result of the negligence .of the Customer. However, nothing herein shall be deemed to Indemnify the 0ompany-lrom any liability or.clalm-arisfnrd.out,of lite negligent performance or failure of performance of the, Company or any unrelated third party. 10.02 Survival, The obligations of the respective Parties under Uhts Arndo 10 shall survive the tnrminaUon of the Agreement or of any *��t61n u coAtt, 'rtp,,d t 9 Supplemental Agreement with respect to any claims or liability arising prior to such termination ARTICLE 11 I•IAZAM:IOUS MATERIALS 11.01 The Customer shall have sole responsibility and liability with respect to the proper identification, removal and disposal of any hazardous materials (e.g., asbestos) or correction of any hazardous condition al a Service Location which affects the Companys performance of the Services hereunder or under any Supplemental Agreement. If, during Ole course of performing the Services, the Company becomes aware of any such hazardous materials or hazardous condition, the Company shall report such matter to the Customer Immediately and before disturbing (or further disturbing) such materials or condition, Work In the affected areas shall be resumed by the Company only upon tie written direction of the Customer, when such materials have been removed or such condition has been corrected, and then only if such continuation of work shall nol violate any applicable taw or permtl, ARTICLE 12 PASSAGE OF TITLE, APPROPRIATIONS, WARRANTY OF TITLE, CUSTOMER INSURANCE AND TAKES, 12.01 Passago of Title. Legal Ho to each installed ECO, Including ail equipment and materials comprising a part thereof, shall pass to the Customer upon the Final Acceptance Date for the ECO. Notwithstanding the foregoing, Uie Customer shall bear all risk of loss or damage of any kind with respect to all or any part of an ECO located al a Service Location, whether tnslalled or not, and the Customer shall Indemnify and pay the Company for the repair or replacement of any ECO or the extent reasonable, to remove the obstacles which prevent component thereof stolen, lost, destroyed or damaged a( a performance and shall resume performance of lls oblignUons as soon Service Location, unless such loss or damage Is direoUy caused as reasonably practicable. by the Company or an Implementation Contractor retained by,. • _ the Company. toss or damage lc en EGO dlrecty caused 6y' Af2TICLE'•�� CHANGES the Company or its fnhplemonlaUon Contractor shall be the.:... • _• • .. ' 14.6- The .Chriemer shall hays Efts riglil tti`iaquesl changesln responsibility of the Company, and vest in Ute Customer as sot forth in Secton 12.01 free and clear of all liens, Claims, charges, security Interests, encumbrances and rights of either parties arising as a result of the actions or failure to act ditto Company, its Implomonlation Contractors, or their employees. 12.nd Customor Insurance. During and throughout the term of this Agreement, the Customer agrees, to provide a certificate of self - Insurance coverage Issued by its Rlsk Manager. Such certificates shall provide at least 30 days priorwrillen notice of cancellation. 12.00 Taxes, The Company shall be responsible for iha payment of any required taxes or fees associated with this agreement, The Company shall pay any sales and use taxes imposed on the ECOs prior to the Compenys delivery or Installation of Uie ECOs, as required by applicable la', subject to any sales and use tax exemptions available to the Company and the Customer. ARTICLE 13 FORCE MAJEURE 12.02 Annroprlatlons. %bled io the laws concenhing`-= munldpal budgets and appropriations the Customer promises it}" fund payments to the Company under this agreement, 12.03 Warranty of Title, The Companywarranls good tits to all ECOs and components thereof fumished or Installed by the Company or Its Implementation Contractors, and the Company warrants that title to such ECOs and components shall pass to 011,2111311. 10 13.01 Neither the Companynor the Customer shall be considered to be In default ln the perfohmanco of Its obligations under this Agreement or under any Supplemental Agreement or Schedule, except obligations to make payments with respect to amounts already accrued, to the extent that performance of any such obligation is prevented or delayed by any cause, ehdsUng or future, Well is beyond the reasonable control af, and not a rosuil of the fault or negligence of, the affected Party (a 'Force Majeure Event`). If a Party is prevented or delayed In tie performance of any such obligation by a Force Majeure Event, such Party shall Immediately provide notice to the other Party of the circumstances preventing or delaying performance and the expected duration thereof, Such notice shall be conlrmed In wrung as soon as reasonably possible, The Party so affected by a Force Majeure Even; shall endeavor, to • is Ser,yloes:(each, a'Charige'),cd.(isIsUng o(inodiRc Eons or,arJdiOonn, lo, ar deletdris'"from, any work to be pa?fbrmed-bf materials -to WI provided by the Company pursuant to this Agreement, of 'any Supplemental Agreement or Schedule thereto. A Change also may result from any failure of the Customer, or lls representatives or agents, to fulfill lls obligations hereunder, whldh failure materially adversely affects the Company's cost, schedule or performance under this Agreement or any Supplemental Agreement or Schedule, Should any Change cause an increase or decrease In the cost of or rANe Prrp,rtda time required for the Company's performance, or otherwise affect any provision of this Agreement or any Supplemental Agreement or Schedule, an equitable adjustment shall be made to the Company's compensation and any other provision of this Agreement or of any Supplemental Agreement or Schedule which is thereby affected, by mutual agreement of the Parties, The Company shall not be obligated to proceed with or perform any Change requested by the Customer hereunder until the Parties have agreed In wiling upon any such adjustments resulting from the Change, Except to the extent a Change specifically results In an amendment or adjustment to one or more provisions of this Agreement or of any Supplemental Agreement or Schedule, all provisions hereof and thereof shall apply to all Changes, and no Change shall be Implied as a result of any other Change. ARTICLE 16 TERMINATION AND DEFAULT 15,01 Termination for Convenience. Either Party may terminate t is Agreement or any Supplemental Agreement, In its sole discretion, al any lime, eithout further liability, upon ten (10) days prior written notice to the other Party; provided, however, that such termination shall not apply with respect to any Services or work of the Company previously ordered by the Customer under a Supplemental Agreement Schedule entered Into by the Parties on or prior to the termination date. With respect to any such previously ordered Services or work, including any previously Implemented ECO or ECO under implementation, this Agreement and the applicable Supplementai Agreement and Schedules entered into thereunder, shall remain in full force and effect In accordance with their terms, unless the Parties specifically agree In wrung to the contrary. 15,02 Termination for Cause 15.02.1 Terminet[on by Customer for Company :• Default. The Customer shall have the right to terminate thfsi . Agreonhent and any Supplemental Agreement for cause If (a) any proceeding is lsstluted against the Company seeking to adjudicate the Company as bankrupt or insolvent, or If the Company makes a general assignment • for lite benefit of its creditors, or if a receiver Is appointed on account of the Insolvency of the Company, or If the Company flss a petition seeking to fake advantage of any other taw relating to bankruptcy, Insolvency, reorganization, winding up or composlUon or readjustment of debts and, In Irllaa;mea eie case of any such proceeding instituted against the Company (but not by the Company) such proceeding is not dismissed within sixty (00) days of such filing, or (b) the Company substantially fails to potion Rs obligations hereunder or under any Supplemental Agreement; provided, In the case of clause (b), that the Customer first has given the Company fifteen (15) days written notice of default daily payment obligation or thirty (30) days written notice of any ether default, and the Company has failed to cure the default (or, If the nonpayment default cannot be cured within thirty (313) days, the Company has not commenced the cure within that period and diligently proceeds therewith). In the ease of such a termination by the Customer, to the extent hat the reasonable and necessary costs of completing any Services previously ordered by the Customer hereunder or under any Supplemental Agreement or Schedule, (adudbng compensation for obtaining a replacement conlraetor or for obtaining additionai professional services required as a consequence of Use Company's breacth, exceed those costs which would have been payable to the Company but for the Company's breach, the Company shall pay the difference to the Customer. The Company, In tum, shall bo entitled to he paid an amount (to the extent not already paid) equal to the sum of all of Its reasonable costs Incurred In performing the Services up to the temtinaUon date, Including all costs incurred with respect to any implementation Contractors; provided that the Company makes available to the Customer all of the work produol, equipment and materials produced or obtained by the Company in performing such Services. Notwithstanding the foregoing and notwithstanding any other provisions set forth herein or in any Supplemental Agreement or Schedule to the contrary, such a temhlneUon by the Customer shalt not affect or dlminlsh In any way any liability already Incen'ed by the Customer pursuant to any Sctedtrle G (Payment Agreement) already entered into by the Customer prior to the termination date, and each such Schedule G shall remain In full force and effect. 15.02-2 Termination -by the Company for Customer eee Default, The- Companrshail:havo• the';right to- terminate this •°•.Agreamont:a5d:any Suppierhtental:Agrcement for.causo if (a) ate • 1 Ctstomer•makes• a.general •asslgnment- for. the benefit of.Its c adilor ,• or'Jr--a •receiver lsAppolnted• on..dr:count of. the - .. ::. insolvencyof:The, Custonheri..on.lf. Ute:Cuslorner:-ti[es a poll@on;.•..: • • , seeking —to -take • •advantage•e•ef . anye other -lave relating,�:- bankruptcy, —insolvency, reorganization, . winding up ..or composition of or readJustn tent of debts and, In to case of any such proceeding Instituted against the Customer (but not by the Customer) such proceeding Is not dismissed within alxly (60) days of such filing, or (b) If the Customer substantially fails to 11 autt FnpkrW. perform its obligations hereunder or under any Supplemental Agreement, including any payment obligation; provided in the case of clause (b), that the Company first has given fifteen (16) days written notice of default of any payment obligation or thirty (30) days written notice of any other default, and the Customer has failed to cure the default (or, If the nonpayment default cannot be cured within Uhlrty (30) days, hes not commenced the cure within that period and diligently proceeds therewith), In The event of such a termination by tie Company, the Company shall be entitled, as its soda remedy, to be paid an amount equal to The sum of (I) all amounts due and payable and not already paid under any Supplemental Agreement or Schedule for Services performed by the Company prior to the termination date, (II) an amount equal to the sum of all of The Conhpanys reasonable costs and expenses incurred In performing Services up to the termination dale, to the extent the Company's compensation for such Services Is not Included in the amounts set forth in clause (I) of the foregoing, end (ill) alt of the Company's reasonable costs and expenses of termination, including cancaltaUon charges and demobilization costs assessed against the Company by its Implementation Contractors. Notwithstanding the foregoing and notwithstanding any oilier provisions set forth herein or in any Supplemental Agreement or Schedule to the contrary, such a termination by the Company shall not in Itself affect or diminish In any way any liability already Incurred by lire Customer pursuant to any Schedule G (Payment A,greemen6).afready entered frto by the Customer prior to the termination date, and each such Schedule G shall remain in full force and effect. 16,02-3 Pavnmenf. All amounts payable by either Party pursuant to Utis Section 15.02.3 shall bo due within thirty (30) days following the submission by the other Party of an Invoice therefore, which invoice shalE include..an Itemization of costs with respect to any amounts measured. an the basis of reimbursable casts. Such. retmbursalide`-- coste also shall be subject to audit by file other.Foriy, al Ilia. other Party's expense upon reasonable advance rtotc ;• provided that such audit strati be completed within sixty (60) days following the submission of the Invoice. Amounts nof- paid by either Party to the other when duo hereunder shall.. bearinterest, from the dale payment was due to and Including the date of payment at a rate equal to the lessor of one percent (1%) per month, or the maximum rate permitted by applicable law (the 'Delayed Payment Rate'). ARTICLE 16 DISPUTES Ale NM, 10A1 Resolution by Arbitration. Any controversy, dispute or claim between the Parties arising out of or relating to (Iris Agreement, or any Supplemental Agreement or Sdtedute, or the breath thereof, which the Parties are unable to resolve by consultation and negotiation shaft be submitted to arbiltaton and shall be settled by arbitration In accordance with the Commercial Arbitration Rules (the 'Rules') of file Mieriean Arbllraldn Association (WA') then In effect and the provisions of this Article. No sufl at taw which seeks 10 resolve any controversy, dispute or claim between the Parties shall be instituted by either Party, except where such suit Is Instituted to oppeat or confirm an arbilraUoe award rendered pursuant to this Article 15, Any cankoversy, dispute or cairn submitted to arbitration shall bo settled by arbitration le Miarnl, Florida, unless otherwise agreed by the Parties. Fiorfda Law shall appty to Resolution by arbitration. Any award entered pursuant to such arbitration shall be binding on both Parties, and judgment upon the award rendered or received may be entered In a Sri of competent Jurisdiction In the Slate of Florida, Exclusive jurisdiction for Uho entry of judgment on any arbitration award relative to any controversy or claim between the Parties shall lie in any court of appropriate subject matter judsdicUon located In Florida, and the Parties hereby oxpressty subject liiemsaIves to the personal Jurisdiction of said court for entry of any such judgment and for the resolution of any dispute, action, or suit arising in connection with the entry of such judgment. " 10.02 Arbitration Proceeding, The controversy, dispute or claim to be arbitrated shall be referred to one (1) arbitrator to be selected by the Parties by alternately striking from a list of nine (9) arbitrators provided by the AM, All decisions and awards shell be mado by the arbitrator In writing. After a notice of demand for arbitration has been MEed In avaordenoe with the Rules, the Parties may, to the extent permitted by the Rules, make discovery of any matter relevant to such dispute before the hearing. Any costs associated with arbitration under this Article 16, Including but not limited to attorneys fees and witness expenses, shall be paid by the Party originally Incurring The costs and the costs of the arbitrator shall be shared equally by the PafUes. - . z, •... •,-1-6.03 pendency of Dispute. The eAstence of any -dispufv, " controversy or claim' under Unls Agreement, ar any Supplement l • AgreensenLor S'dhedufe, orUte pendency of the dispU1e'selteiiieii r resolution procedures set forth herein shall not In and of Utemselves ',relieve or excuse either Party (ram its ongoing duties and obliggli iris - hereunder or thereunder, 12 ARTICLE 17 ASSIGNMENT 17.01 Agreement Binding. This Agreement arid each Supplemental Agreement entered Into by the Parties shall bo binding ,role erewrrd. upon, and shall Inure to the benefit of, the Parties and their successors and permitted assigns. 17,02 Permitted Assignment. (a) Company may, with notice to and consent of Customer, which consent may not be unreasonably withheld, but acknowledging that the Agreement fs considered to be unique In nature to the abilities of the Company, delegate Its duties and its performance under this Agreement, and/or utilize contractors, provided that any essignee(s), deslgnee(s), or contractors) shall honor the terms of this Agreement and shall se bind itself. The Customer, at Its sole discretion, may require that such assignees, designees, or the like, sign assignment and assumption agreements satisfactory to the Customer. 17.03 No Third Party Beneficiaries, Except as otherwise expressly provided herein, neither this Agreement nor any Supplemental Agreement or Schedule, nor any term or provision hereof or thereof, shall be construed as being for the benefit of any party not a signatory hereto. ARTICLE 18 NOTICES 18.01 in Writing. All notices, demands, offers or other written communications required or permitted to be given pursuant to this Agreement, or any Supplemental Agreement or Scheduie, shall be in writing signed by the Party giving such notice and shall be masted by U.S. Mall, postage prepaid, couriered or faxed as follows; If le the Company; FPL 700 Universe Blvd. Juno Beach, FL 33408.0420 Fex: (561) 691-7305 fel,; (954) 691-7087 !Menton: General Counsel if to die Customer; City of Miami Department of Capital improvements 444 S,W. 2"A Ave,, 8a Floor Miami, FLFIFLFL 33130 Fax: (305) 416.2163 Tel: (305) 416-1287 Attention: Deputy Director • Each Forty shall have the right to change the place to which notices shall be sent or delivered or to specify one additional address to which copies of notices may be sent, in either case by stnh#tar notice sent or delivered in like manner to Mother Party. 18.02Timing of Receipt. Notices delivered by mail shall be deemed received three (3) working days after the date of the postmark, and notices delivered by overnight courier shall be deemed received on the date when left at tte address of the reciplenL Notices sent by fax shall be effective the date faxed, if a working day, or the following working day otherwise; provided that all faxes shall be confirmed by fal(ow-up mail within three (3) working days, ARTICLE 19 GENERAL PROVISIONS 19.01 Entire Agreement. This Agreement, Including the Exhibits and Schedules attached hereto, sets forth the full and complete understanding of the Parties relating to the subjoot manor hereof as of the Effective bale, and supersedes any and all negotiations, agreements and representations made or dated prior hereto with respect to the subject matter of this Agreement. My actions or Services described In his Agreement wrhhich were performed or implemented by the Parties prior to the Effective Dale shelf for all purposes be deemed to have been performed under this Agreement. 19.02 Amendments. No change, amendment or modification of this Agreement or any Supplemental Agreement or Schedule thereto shelf be valid or binding upon the Parties unless such change, amendment or modification shall bs in writing and duly executed by both Parties. 19.03 Status of the Parties, The Company and its implementation Contractors shall be independent contractors w€ilh respect -to the Services performed hereunder and under any Supplemental Agreement or Schedule, irrespective of whether such Implementation Contractors are approved by the Customer, and neither the Corshphi$11brits infpromenlhUdti Cefibtotarsr Adrift° aineloyees'er eiUi r, she111ie. deenie'd to be the employees, representatives or agents 'al -tiffs' Customer. Nothing -in this Agreement or any' Stl' ilamantaf gtaertf2nt 'or°'Schedu(b.='shai(l ebnsirueci' as fnconslslerit Frith •ote.:roregoing independent con(raotor status or relaLanshi5; br as creating or irlhptying any partnership, joint venture, trust or other relationship between the Contpany and the Customer. 10.04 Customer, The Customer hereby represents and warrants to the Company that (a) the executors end delivery by the Customer of this Agreement and the performance of Its obligations hereunder r0learmea 13 rDiSe„ prep red* have been duly authorized by all requisite actions and proceedings; are not inconsistent with and do not and will no! contravene any provisions of the Customer's organizational documents or any applicable law, rule or regulation; have been approved by all necessary persons or entitles; and do not and will riot confitcl vriUi or cause any breach or default under any agreement or instrument fa irkicJi the Customer is a party or by which it or any of Its properties Is bound; and (b) this Agreement has been duly executed and delivered by the Customer and constitutes the valid and legally binding obligation of the Customer, enforceable against the Customer In accordance with lis terms, except to the extent thal enforceability may be limped by applicable bankruptcy, insolvency, reorganization, moratodum or similar laws and subject to general equitable principles. 19.05 Comeau. The Company hereby represents and warrants to the Customer that (a) the execution and delivery by the Company of this Agreement and the performance of fls obligations hereunder have been duly authorized by all requisite actions and proceedings by all requisite actions and proceedings, do not and well not contravene any provisions of Uie Company's organizational documents or any applicable !eve rule or regulation, do not and veil not require any consent of any person or entity which has eat already been obtained and do not and will not conflict with or cause any breath or default under any agreement or instrument to whteit the Company Is a party or byvrhich It or any ofits properties is bound, and (b) tiffs Agreement has been duly executed and delivered by the Company and constitutes the valid and legally binding obligation of file Company, enforceabie against the Company fn accordance with its terms, except to the extent that enforceability may be limited by epptcable bankruptcy, insolvency, reorganization, moratorium or similar laws and subject to general equitable principles, 19.08 Drafting interpretations and Costs, Preparation and negotiation of this Agreement has been a Joint effort of the Padties and the reselling document shall not be construed more severely against one of the Parties than against the other. Each Party shall be responsible for its own costs, including legal fees, incurred in negotiating and fetaiizing thls Agreement and eny Supplemental Agreement or Sdiedute, 10.07 Carstlons. The captions contained In this Agreement or In any Supplemental Agreement or Schedule are for convenience and reference only and in no way define, describe, extend or Umil Uie scope rx intent of such document or the Intent of any provision contained therein, .41i IHlU 14 10.08 Sevorability1Divlslblo Contracts (a) Tho invalidity of one ar more phrases, sentences, clauses, Sections ar Articles container( in this Agreement or any Supplemental Agreement or Schedule shall not affect the validity of the remaining portions thereof so long as the material purposes of such document can be determined and effectuated. (b) From Gnue to lime the Company and Ure Customer may enter Info one or more supplements, schedules, or payment agreements related to the subject matter of this Agreement, Each such supplement, schedule, or payment agreement shall canstilule a separate and divisible contract which the Company may assign to one.ar more assignees, in whelp urn part, and each and every such assignee of lho Company shaft be entitled to line benefits and rights of the Company under tiffs Agrecrnent, and shall he entitled to exercise the rights of the Company under Uits Agreement. No assignee shelf be responslbte for any obligations of the Company except as expressly assumed in writing by such assignee In accordance with the temps and conditions of Section 17.02. 19.00 Further Assurances, The Company and the Customer each. agree to do such other and further acts and things, and to execute and deliver such addiUorral instruments and documents, as either Party may reasonably request from time to time whether at or after the execution of this Agreement, in furtherance of the express provisions of 1111s Agreement. 19,10 Aeolloable Law. This Agreement and easel Supplemental Agreement and Sohedulo thereof, shall be governed by, construed and enforced In accordance with the laws of the State of Florida, exclusive of conflicts of laws provisions. 18,11 Counterparts. This Agreement and any Supplenlenbt Agreement or Schedule may be signed In any number of counterparts and each counterpart shall represent a fully executed edglnal as If signed by both Parties. 19.12 No Waiver. The failure of a Party to enforce, Insist updh, di comply i'riti any of the terms, conditions or covenants of this Agreement or any Supplemental Agreement or Schedule, or a Party's waiver of the same In any Instance or Instances shall not be • construed as a general waiver or relinquishment of any such lermse conditions or covenants, but the same .shall he -and:remain at-sb• - times in full fora arid effect, 19.13 No Dlscriminatton, Company shall not unlawfully discriminate in providing Its services under this agreement. 19.14 ADA Clause. In the course of providing any work, labor or services funded by the City, Company (or its agents and representatives, as applicable) shall affirmatively comply vrith all applicable provisions of the Americans with Disabilities Act CAW), Including Titles 1 & Ii of the ADA regarding noredlscdminalion on the .A.ft P,�putS, basis of disability, and related regulations, guidefirtes and IN WITNESS WHEREOF, the Parties hereto have executed this standards as appropriate. Additionally, Company will take Agreement by and through their duly authorized representatives as affirmative steps to ensure non.discriminalion In employment of of use Effective Oath. disabled persons, THE COMPANY; 19.15 OSHA If applicable, the Company will allow Customer Inspectors, agents or oilier representatives to monitor Florida Power and Light Company Company (or fls agents or raprosenialIves) for contpifanco with safely precautions as requited by federal, stale or focal laws, rules, regulations, codes and ordinances, lay performing these inspections the Customer, Its agents or By: representatives are not assuming any liability under the laws, rules, regulations, codes or ordinances. The Company shall have shall have no recourse from the occurrence or non- occurrenco or results of such inspsctton(s), Upon Issuance of a notice to proceed or following (he effective date the consultant shall contact Risk Managomonl at 005) 416.1700 to verify Inspection scheduling, Dennis -Brandt. r(L/>u.-4. ' • Its: Authorized Corporate Officer Mesh 19.16 Order of Precedence. If there Is a conflicfWCorpo t- + eta 6, o , Lto between or among the provisions of this Agreement, the order Affix Corporato Soal) of precedence Is as follows: 19,16-1 These terms and conditions 19.16.2 The Work Order 19.16.3 The Scope of Services 19.16.4 The City RFQ and any applicable addenda 19.16.5 The Company's Proposal THE CUSTOMER; Oily of • mf, a Florid Priscilla Thompson, ay Clerk anstirance ap owed. '''Docile Camlfo; A in sFrafat . •A' = - - RIbkManagement-DepaTtnient . Approved as to Legal Fo Jorge L. Fernandez, Mknims. 15 rllAtt„1'rtpltCd� Gf) City of Miami Legislation Resolution: R-11-0034 City Hall 3500 Pan American Drive Miami, FL 33133 www.miamigov.com File Number: 10-01449 Final Action Date: 1/27/2011 A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), AUTHORIZING THE CITY MANAGER TO NEGOTIATE AND EXECUTE SUPPLEMENTAL AGREEMENTS WITH FPL SERVICES, LLC, IN SUBSTANTIALLY THE ATTACHED FORM(S), TO PERFORM ENERGY EFFICIENCY IMPROVEMENTS IN CITY OF MIAMI FACILITIES FOR A TOTAL AMOUNT NOT TO EXCEED $2,770,728, IN ACCORDANCE WITH THE PREVIOUSLY EXECUTED MASTER AGREEMENT, SUBJECT TO THE AVAILABILITY OF FUNDING; ALLOCATING FUNDS FROM THE FEDERAL ENERGY EFFICIENCY AND CONSERVATION BLOCK GRANTS ACCOUNT NO. 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, in September 2008, the City Commission unanimously adopted MiPlan, the City's Climate Action Plan, that specifically recommends improving energy efficiency and conservation in City buildings; 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, on September 23, 2004, the 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, on October 14, 2010, the City Commission agreed to the assignment all of FPL's rights and obligations under the Master Agreement to its subsidiary, FPL Services, LLC ("FPLS"); and WHEREAS, on October 14, 2010, the City Commission approved a Supplemental Agreement with FPLS to implement energy conservation measures in six (6) City facilities with a total cost to the City of $783,539 and guaranteed energy savings of $58,773 per year; and WHEREAS, all EECBG funds must by obligated by April 12, 2011 and expended by October 12, 2012; and WHEREAS, the City wishes to perform energy efficiency improvements in additional City facilities utilizing EECBG funding by executing the attached Supplemental Agreements with FPLS for the purposes of identifying and performing energy efficiency improvements in City -owned buildings; NOW, THEREFORE, BE IT, THEREFORE, RESOLVED BY THE COMMISSION OF THE CITY OF City of Miami Page 1 of 2 File Ili: 10-01449 (Version: 1) Printed On: I7/1/2017 File Number: 10-01449 Enactment Number: R-11-0034 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 negotiate and execute Supplemental Agreements with FPLS, in substantially the attached form(s), to perform energy efficiency improvements in City facilities, for a total amount not to exceed $2,770,728, in accordance with the previously executed Master Agreement, 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 3. This Resolution shall become effective immediately upon its adoption and signature of the Mayor.{2} Footnotes: {1} The herein authorization is further subject to compliance with all requirements that may be imposed by the City Attorney, including but not limited to those prescribed by applicable 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. City of Miami Page 2 of 2 File Id: 10-01449 (Version: 1) Printed On: 11/1/2017 ]nvestment Grade Audit City of Miami May 20, 2010 Submitted by: • FPL Services, Li.:3 6001 Village Blvd. ,Nest Palm Beach, FL 33407-0768 David Harold Russel, Jr, PE PE # 42062 C of A: 9264 - CAA ('Norl 04a, \a/W.2- imP re.CJI) FPL rvk Where proven meets possible' Tall rP- L aarvicas_ *ma aenuan anuada lrasaaala" Investment Grfacle Audit C1 y ofMiinni r Or .,..„:mirra r^nu .a , 4 f ,^ ar.. C VREPIAM Tab n Tab3,.... xesfat1V atla,lmm-y Existing Conditions Plodding Methods Tab 4 . Energy Conservation Measures Tab 5 ..,Utility Data Tab 6 Measurement and Verification Appendices Appendix A ...... Utility Data Appendix B , , . . , ...... _ ...Existhig Equipn-ent Appendix C . . . ...... . ......... Cash Flow Appendix D Drawings Appendix E Commissioning Appendix F Schedule • Appendix G Savings Guarantee Appendix H Lighting Analysis Appendix I Li?htng Specs Appendix 1 Water Analysis Appendix K Water Specs Appendix L ., H\'AC Analysis Appendix M 1IVAC Specs Appendix N ._ Miscellaneous ECM Analysis Appendix 0 Miscellaneous ECM Specs PPE-. . ScarrorhoLss. iM,am provep Mein Meter Inv mut'er Grade Audit City o f Miturzi y.-x x srrx,r nc. - v n r`:1 I, The federal government launched the Energy Efficiency & Conservation Block Grant (EBCBG) pro atua,. f�azcl d., i.Yi11tAanet is .g.APY .3. -.. iiauusttmPt tl�{_(f 2 t� t4_he ;1. niil ies�a� ate and impleanent strategies to create jobs, reduce total energy use, aucl improve energy efficiency in the building and transportation sectors. As a 2009 recipient of this grant, the City of Mini committed to: • Improving energy efficiency th the building sector Reducing fossil fuel emissions in a manner that is environmentally sustainable and, to te ma:Lirnuin ei:ter practicable, maximize benefits for local and regional communities • Redtioing the total energy consumption FPL Services, LLC (FPLS) is proud to present this Phase 1 investment Grade Audit ("MA) to The City of Miami for Energy Efficiency Retrofits and Performance Contracting Services, as specified in the City's EBCBG application. In addition to lowering the City's overall energy use by approximately S90,000 per year, the City of Miami will achieve other coniix iuiitywide economic and environmental benefits. FPLS performed an energy audit for the City cf Miami from December 2009 to May 2010. The purpose of this Phase 1 rw1it was to ideratfy and analyze energy conservation oppot't.nrities that would result in the greatest r'drutons Li energy consumption at eleven (1I) facilities assigned to this audit The technologies evaluated during this audit included: •:rP'• nee Hnv�b�er! prrrswrlterd Pp11Pr 4Fg & t • :;<!)�ifPorisnl6y,;;tluu1/tsty,tlra Pra�P4ortPi;r'''' , :,sY1•lJi�pQ e+d,RPi,`rIYIt'ei7Pl+uallltrt+IlsvlvL;.r • ,({?rJ,sp,at+ir'f s!L,i�fSl�i;iruesr.'fr... luapiai•� Q1rr�6'orrrinrrPif `'�Pl1 e!!11,'".y�-tn". 2tP6riY� �i¢r+3F{'f� 1�'1 r w, :f }.jj#;iYr;T:.• ..,r r 5�• Lighting Systems • LEl) Exterior Lighting Systems • Occupancy Sensors • Chiller • Air Handling Units • LEM Certification • F1l1AC Systems • Programmable Thermostats • Outside Air Controls (Demand Control /VAV) • Sports Field Liughting Systems • Photovoltaic Renewable Energy (Solar) • Eneiby Star Labels Although FPLS evaluated each of the above technologies, several did notpz'oduce sufficient energy savings and are therefore not included in the final itnpleinentationrecomi iendations. It is important to note that while the tesimolcgies evaluated did improve equipment efficiencies, the limited run times at B0113 facilities resulted in lower than expected longterm energy savings, i,e., the Artiiue Community Center ":heater. Nonetheless, FPLS developed solutions and identified technologies able to produce 1st year energy savings of $36,042 and material savings of $2,73I. The following revenue producing conservation rneasures are recommended for installation/retrofit. Page 1 W11em[mom miles ?mew m t.itinent. Grade A idifi City of Milani `{n7 �i:jllilre it I^^�`. +' J! r iS� -fl i'jM J l �rl 1. 1 P P ' �LL 11 i,vdi '' 1 i)Y ��I�, �A�N"•f� i!'"'X{}IrL �� i' i� h'`' .i. Urdf t .y Y 4 '1! a� I , ,r':u .. I . u:�r.r.a i:., rl�iv%:`.`'rrw ,, Kt•:u:. kJzFs.la !4, Y' r•• irP+il Ir.]' I I ,lire ,, rraua ,� '�'� � 41 iy hlIt ....0,�..1. a..�.:... ....� � �., wkl ,� i jl6'j�' I. ;'CN 41j1 IN - wlrn 4 .1 Yaul:c Qs ,04144l P r , f i `'�telhzSl�n4 ty���l��>� * �r 1 :ellula�� t�Gr e� .. eEa[Y�r,a1 ! � .q� .1 ,r... � .r...�..-...., �::.r , _.,�.7 P; lr �"' IlA�alttl{ImY 1,,r1,1710.41 ,° pl}�'1 a rarrl ri I IP 1; ', j�„¢ �,� f��JaElinl''� �kK�>S.{{`� .1111 n _ . .,,.... [Ti? L7.�.� II Pane Headquarters' (removed . torn -Scope orWEN) ........ ...-.... _: ._...... _._. ....,.... City Hall Fire -Rescue Training Center (removed from Scope of Work) Police North Disiricl Substation' Y Y v Artlrne Community Center Artime Community Center Theater Y Police South District Substation y Y Rescue Support S rvice(Fire Garage (removed from Scope of Work) • Fire -Rescue Station 41 Virrick Park Community Center (removed -from Scope of Worj Curtis Part (removed•from Scope off Work) The following matrix summarizes the economics for the combined ECMs recommended within this report: Pp �' t5[F 'r i44, StF"�' r1,. r L -mil ��yp�m 8' 4 r 3filr�HC � 4tiiL°� L//++'isc�' ,•., �i?e'rr"I°A J ?3 ,4;:i �/I,r I}"1� l P 9, 0, r=a�Tl! 41�1���"yT PY ., wr N1efigLi�tvi k,:, „.kt 9 J sal'CJly.. 1 ,. zsFK �Yk q ay0 tI M'yas.Pareirl - 1 u= =r ,4mg�!'° µµ,,tltI t1l�4�{ilk.�IVljl vie, �ir ,�SW��I" I �ry J.241 f�Ct'' Y`�p,� {:vim , ::li��tt1'; 1,lHti 114� �I l�i�°J47i � Yf M9 FL1114f1Pt lfiA0-- I, 8l lY!!'il' 1;; ;Wilt p� �.,° `ar4,1; 1I'.i.6 1.,�-01'.L"2{11�f..01- 1;v 5''taez:gif? 7. -,-..a!i71 �J r! .,h r '!pefr 'j Via. 1 l5'Alti l£t m .vf .... ,�...,.r�rLyris' fi4 i1'li aJJd Ln' 1, �I ...4 } �5�i "r ,{��}ti''c p W "YJ 'F211.F,TY� LIK.:.} te:ti.v ,.....i`l...-- i ,yy } 39 ,Ih r�r41 P1111 ' Fi r' '8:1a1' F�'�. Let� `� 1�� LYE I rp,i�i Nu S1!.1 . i' ' T`lr)jini•Lh.)�-.. e i- 'r" t � ltn '(„ ,-,. `_�, '.,,,,, 1 i L� I, hf UC-% ''1 l cga �1'lf�IYL��U1 Jx ,, 4Ki, 'v�`K_i„..).i'" Jar li 11.1 ECM-1 Lighting Retrofit $36,264 $2,73.1 $3,:160 $435,443 ECM-2 Ocoupan y Sensors $1,897 $0 NiA $9,047 4.8 ECM-4 Outside Air Controls (DCV / VAV) $16,6�J5 $0 N/A $180,O09 10,8 ECM-4a Programmable Thermostats $1,188 $0 N/A $17,390 14.7 ECM-5 Solar PVt N/A N/A N/A . IL}1 F L''jj • �.S7% ., o : 91, � � 141pp `�Yg,:y," e K� I lit*.101 I 7,,,,..1 g �fi'. ryL1 ,miff .v .�4.:f11 Ils. vEEl:�0n'i�+,. ,,,,t (y}��Q Ii i' ir,A 7t ' q(`1 .rli 11.ii➢�+N . [,. e1 a I ,N„IA,y - ,1 pt••..., 7r U.f�;�Elyg3 , it i i! grin. 1 a II hitig:4 `� - l bre !" ,A 1-.•f',i,r j I , , r�j��wj irri 517ie11H T.' S tOp'yk f. N RS yN/A 7ilR V�fe Fr �.y� 1 e ', 'g'`5 dir , ,,,,w'i.!(:1 i �i ";Solna apporttoxities Het be re-e:Paivated during Plicrse 2 of the F.PI„ Investment: Grade Audit Wage 2 WhornlimuisollualsPDriBIhII Investment Grade Audit City t1 f 11!flnrari .p'PLS hay prepares a Ces eivw Statement (pl%rise. refer to _llpperlrlir C) which shol..s rr ctcraxrsfrrtis�e savings.over 5 years cc,; $26-6,380. The CYgv o/'i imni lams indicraterd thrat it rdesires to .fund this project100%a with knerkarr. kac01),Vy and Re-i1nfestrazerstAct (:4R7L4).fatneL. The .airrL ataii.,�:taz.pEaitw .a ' xya,trz_thig-caslitt4T- S,ttc cmagr is.rayf lnls s . ECM Cast , $641,689 F PZ Rebuses ($3,160) .JGA Cost $I00,000 .2 Teresa s of kleasureme.nt $44, 810 Verifcatian.(M .9 Total _Project Cost. $783,539 Next Steps: Growing the Swings . FPLS has begun discussions with key City Staff to develop strategies aimed at identifying additional technologies and conservation measures that will significantly increase long --term - energy savings for the City of Miami, To this. aim, the following strategies have been identified: .0 Expand he number of facilities: by not limiting the Phase 2 investment Grade audit to a specific set of buildings, FPLS will be able to examine, through a preliminary audit, multiple facilities and select the facilities end technologies that will produce the greatest possible energy savings, o Phase 2 expansion of outside air conc•ol for Police Headquarters and cone of system upgrades at the larger facilities, including the Miami Riverside Center, u If f uancially prudent, fold the renewable energy technologies (photovoltaic panels) developed in Phase 1 into a Phase 2 bundled package solution. FPL Services: A. Partner•Cornnitted to Your Conservation. FPLS' is aprorninent Energy Services Company cone tted to providing energy solutions and saving to our customers, Our expertise it, energy conservation, renewable energy and utility rate strnetures will provide the City oflvliatni with the confidence of working -with a leading and twisted e ior'gy partner. Throughout FPL's 84-year history, energy awareness and conservation ha-ve 'bean among our top priorities. FPL Group received Florida's ' Craeen to Gold" award in its inangrral year of 2009, Presented by Enterprise Florida, the honor is given to companies or organizations focused on developing gr'eeo products and advocating sustainable management of icsources. FPLS will bring this same commitment to the City of Miami. We are pleased to have this opportunity I:o partner witlfthe City of Miami in developing and implementing energy efficiency solutions as part of the ;CBCBG program, and look forward to continuing our work with your City staff; PLge3 Term Sheet for the Execution of Supplemental Agreements For Energy Improvements at City Buildings with FPL Services Contract Type: Supplemental Agreements for Feasibility Study and Implementation Order to Previously Executed Master Agreement for Energy Services Parties: City of Miami (Customer) and FPL Services, LLC (Company) Subject Matter: Energy Efficiency Study and Improvements at City -owned Buildings Term: Feasibility study and Implementation Order will expire when specified work is completed. Cancellation Provisions: City may decline to proceed with implementation or, after executing implementation agreement, may terminate due to lack of funding or change In regulations. Fee Structure: Feasibility study (Schedule C): $6B,812 Project implementation (Schedule E): NTE $2,701,916 to be billed based on percentage of project completed. Late fee: Interest of 12% per annum charged after'25 business days after proper invoice presented for construction activities and after 45 business days for the feasibility study, as per the Florida Prompt Payment Act. Hold Harmless/Indemnification: Full indemnification for Customer per Article 10 of the Master Agreement Compliance with All Laws: FPL Services will comply with all applicable laws. Permits: FPL Services will comply with applicable permits In Supplemental Agreement . insurance: Per Article 9 of the Master Agreement. Workers Comp: $500K; General Liability: $2M; Auto Liability $2M; Professional Liability: $1M/$2M Special Provisions: Entirely grant funded by federal ARRA Energy Efficiency and Conservation Block grant. No match required. Company must comply with relevant funding terms of grant, specifically Davis -Bacon and Buy American compliance. 1 of 2 Special Provisions: Special Provisions: Special Provisions: Special Provisions: AN implementation recommendations are subject to review and approval by City Manager. FPL Services has accepted standard City terms for assignment and transfer of contract; access to public records; ownership of improvements; and accounting records. The City is responsible for Toss or damage to equipment installed under this contract unless the loss or damage is the fault of FPL Services or its subcontractors. FPL may assign its duties and obligations under the contract with the consent of the City. The City may not unreasonably withhold its consent to such assignment. 2 of 2 SUPPLEMENTAL AGREEMENT NO. 2 SCHEDULE A pESIGNAT ION OF SERVICE LOCATIONS Pursuant to this Supplemental Agreement No. 2 dated as of 27th day of January, 2011, between FPL Services , LLC (the °Company°} and The City of Miami (the 'Customer`) {the °Supplemental Agreement'), the Customer hereby designates the following Service Locetion(s) of the Customer for purposes of Semites to be provided by the Company pursuant to the Master Agreement for Deinand Side Management and Energy Efficiency Services ("Master Agreement') dated December 7, 2004 between the parties: Jaynes L. Knight Center Rverside Administration Building and Garage - GSA Building Fire -Rescue Sutton # 2 Fire -Rescue Station # 4 Fire -Rescue Station # 5 Fire -Rescue Station # 7 Flre•RescJe Station # 8 Fire -Rescue Station # 9 Fire -Rescue Station # 12 Police & :ire Headquarters Manuel Ar`ime Community Center Manuel Artime Theater .Schedulo,A Names 1 at 1 io Executed this _ day of THE CUSTOMER: City of Miami by: Attest: . Tony E. Crapp Jr. Priscilla A. Thompson City Manager City Clerk Approved as to insurance requirements! Approved as to legal form and correctness: Gary Reshefsky, Director Risk Ma,agemeial Division THE COMPANY: FPL Services, LLC By: Sam Forrest Ifs: President rSchedule,.A.Narren Julie 0. Bru City Attorney SUPPLEMENTAL AGREEMENT NO. 2 SCHEDULE C AGREEMENT FOR FEASIBILITY STUDY TINS SCHEDULE C OF SUPPLEMENTAL AGREEMENT NO. 2 (this "Schedule") is made and entered Into as of the 27th day of January, 2011, between FPL SERVICES, LLC (the "Company") and 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 that certain Supplemental Agreement No. 2 dated as of _ day of , 2011, 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. Except as otherwise provided herein in the event of a conflict between the terms of this Schedule and the Master Agreement, this Schedule will control. NOW, THEREFORE, in consideration of the mutual promises and agreements set forth herein and in the Master Agreement, the Parties, intending to be legally bound, hereby agree as follows: 1. Feasibility Stt dy. The Customer hereby requests the Company to perform a feasibility study with respect to the Service Location(s) numbered Service Location No.- Schedule A of the Supplemental Agreement, in accordance with the terms and conditions of the Master Agreement. The Company agrees to perform such a feasibility study for the compensation set forth herein, and the Company undertakes to prepare and submit to the Customer a Feasibility 0/1,10 061 Report with respect to recommended ECOs at such Service Location(s) as provided in the Master Agreement. Detailed specifications, if any, agreed upon by the Parties for the feasibility study (inctuding, but not limited to, energy savings technologies to be reviewed, the Customer's payback criteria, time schedules and other such matters) are set forth In Appendix I attached hereto. 2. Customer Cooperation. The Customer shall use reasonable efforts to assist the Company in performing the Services contemplated by this Schedule, Including providing reasonable access to each Service Location, providing information concerning each Service Location, making appropriate Customer personnel available If requested.by the Company to assist the Company in performing such Services, and taking any other actions the Company may reasonably request from time to time to achieve the purposes and intent of this Schedule and the Master Agreement. 3. 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 thirty (30) 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 ECOs 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 fifty percent (50%) of the recommended ECOs (as determined on an estimated implementation cost basis). If the Customer fails to supply the Company with a list of such approved ECOs within such thirty (30)-day period, the Company's obligations under this Schedule and the Supplemental Agreement shall terminate, without further liability of the Company, and the Customer shall be obligated to pay the Company for the feasibility study In accordance 1 with the provisions of Section 4.2 of this Schedule. If, however, the Customer wishes to proceed with the implementation of one or more ECOs and provides the Company with a list of approved ECOs in accordance with the foregoing, then the Company and the Customer shall enter into a Schedule D (Engineering and Design Order) for such approved FCOs in accordance with the provisions of Section 2.4 of the Master Agreement 4. Price and Payment. 4.1 Schedule C Price. Suoject to the provisions of Section 4.5 below. the Customer shall pay to the Company the sum of 568,812.x (the "Schedule C Price") for all Services performed by the Company pursuant to this Schedule. The Schedule C Price is the full compensation for such Services and includes all federal, state and local taxes, if any, assessed with respect to the Services, or with respect to the furnishing of any items hereunder. 4.2 Payment on Termination. In the evert of a termination of the Company's obligations under this Schedule and under the Supplemental Agreement as set forth in Section 3 above, or as set forth in Section. 2.4 of the Master Agreement, the Company shall provide an invoice to the Customer for the full Schedule C Price, and the Customer shall be obligated to pay such amount within forty-five (45) days following receipt of the invoice. 4,3 Deferral Election. In the event the Customer elects to proceed with implementation of one or more ECOs pursuant to Section 3 hereof, the Customer shall notify the Company, on or before executing a Schedule D (Engineering and Design Order) with respect to such ECOs, of the Customer's election to either (a) receive an invoice for the full amount of :he Schedule C Price, or (b) defer and rollover payment of the • Schedule C Price until such time as compensation is payable to the Compariy pursuant to Schedule D (or a subsequent schedule, as set forth in Schedule D). If the Customer elects the deferral option pursuant to clause (b) of the foregoing, interest shall accrue on the unpaid balance of the Schedule C Price at a rate equal to the lesser of twelve percent (12%) per annum or the maximum rate permitted by applicable law, beginning on the date tnirty (30) days following notice of the Customer's election and payable in full at the time of payment of the Schedule C Price. If the Customer elects, pursuant to clause (a) of the foregoing, to receive an invoice, or if the Customer fails to make a timely election pursuant to the foregoing, the Company shall Issue an invoice for the full amount of the Schedule C Price, and the Customer shall be obligated to pay such amount within forty-five (45) 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 Dbflgatlon. 4.5.1 Notwithstanding any provision in this Schedule to the contrary, the Customer shall have no obligation hereunder to pay the Company for the Services performed by the Company under this Schedule if (a) the Feasibility Report submitted by the Company pursuant to Section 1 does not identify at least one potential ECO at a Customer Service Location specified in Schedule A of the Supplemental Agreement which meets the Customers agreed upon payback criteria of 10 years or less, and (b) the Customer does not elect to proceed further with any approved ECO as set forth in Section 3. For purposes of the foregoing, the term "payback criteria", with respect to an ECO, shall mean the number of years obtained by dividing (i) the total estimated implementation cost of the ECO, as set forth in the Feasibility Report (including the Schedule C Price specified- in Section 4.1 hereof, but excluding all financing costs associated with implementation of the ECO), by (ii) the estimated savings to the Customer from the installed ECO, including energy savings, maintenance savings, avoided capital costs, and other costs as applicable, as set forth In the Feasibility Report. NI such estimates shall be made by the Company in Its sole processional judgment and shall be binding upon the Customer for purposes of this Section 4.5.1. 4.5.2 In the event the Company determines, prior to submission of the Feasibility Report to the Customer, that the Company will not be able to identify at least one potential ECO which meets the Customer's agreed upon payback criteria as set forth in Section 4.5.1 above, then the Company, in Its sole discretion, may elect by written notice to the Customer to terminate the Supplemental Agreement and this Schedule without further liability, unless the Customer, within five (5) days following receipt of such notice, elects in writing to waive the provisions of Section 4,5.1 above and to pay to the Company the Schedule C Price as otherwise set forth herein. 5. Disclaimer of Warranties. The Customer acknowledges and agrees that the Company makes no representation or warranty of any kind with respect to the Services to be performed by the Company or any other person pursuant or relating to this Schedule, except as expressly set forth in Article 4 of the Master Agreement, 6. No Assignment Or Transfer. Except as provided in Section 17.02 of the Master Agreement, the Company cannot assign, sell, pledge, encumber, dispose of or transfer this Schedule without the prior written approval of the City Commission. Any assignment, sale, encumbrance, pledge, or disposition of this Schedule or any interest therein by the Company without prior City Commission approval shall result in the automatic termination of this Schedule under Article 15 of the Master Agreement upon prior Thirty (30) days written notice by the Customer's City Manager, 7, Public Records. The Company understands that the public shall have access, es required by law, to Customer related documents created pursuant to or directly to this Agreement including without limitation data, and non-exempt public records as defined by Florida Statues, subject to the provisions of Chapter 119, Florida Statutes, and agrees to allow such access by the Customer and the public to all documents subject to mandatory disclosure under applicable law. 8. Compliance With Alt Laws Applicable, The Company accepts this Schedule and hereby acknowledges that the Company's compliance with all applicable federal, state and focal laws, ordinances, regulations, permits and similar approvals is a requirement of this Schedule, and the Company shall comply there with as the same presently exist and as they may be amended hereafter. 9. Ownership Of Improvements, Except as provided in Section 12.01 of the Master Agreement, as of the effective date of thls Schedule and thereafter, all improvements shall be vested to the Customer. Furthermore, title to all ECOs made in or to the Service Locations, whether or not by or at the expense of the Company, shall, unless otherwise provided by written agreement or by Section 12.01 of the Master Agreement, Immediately upon the completion of the Schedule become the property of the City and shall remain in custody, possession and control of the Customer which the Company will promptly convey as Is warranted or requested, 10. Accounting Records. All records and accounts created pursuant or directly related to reimbursable costs under this Schedule, including Invoices, bank statements or duplicate deposit slips, and all other supporting records created pursuant or directly related to this Schedule, shall be available for Inspection and audit by the City and its duly authorized agents or representatives during business hours, and shall be maintained in accordance with generally accepted accounting principles. The Company recognizes shall keep and preserve, or cause to be kept and preserved, said records for not less than thirty-six (35) months after the termination or expiration of this Schedule. For the same period of time, the Company shall also retain copies of all sales and tax returns covering its operations under this Schedule at the designated Service Locations, in its local office of operations, and any other governmental tax or other returns, which show the Company's reasonable costs, fees and expenses therein which directly related to this Schedule, and shall, upon demand, deliver photographic copies thereof to the Customer at no cost. The Company will cooperate with the Customer's internal auditors andtor such other auditors des gnated by the Customer in order to facilitate the City's examination of records and accounts created pursuant or directly related to this Schedule. IN WITNESS WHEREOF, the Parties hereto have executed this Schedule by and through their duly authorized representatives as of the date first hereinabove written. The Company: FPL Services, LLC By: Sam Forrest Its: President The Customer: City of Miami Attest: Priscilla A. Thompson Tony E, Crapp Jr. City Clerk City Manager Approved as to insurance requirements: Approved as to legal form and correctness: Gary Reshefsky, Director Risk Management Division Julie 0. Bru City Attorney SUPPLEMENTAL AGREEMENT NO, 2 SCHEDUI.E C APPENDIX I - FEASIBILITY STUDY SPECIFICATIONS Scope of Service: Investment Grade Audit (IGA): Provide an Investment Grade Audit which includes: (1) performing a detailed energy conservation opportunity assessment of the facilities listed in Schedule A of Supplemental Agreement 2, including gathering site information, utility bills, drawings and ether historical documents from the City of Miami; (2) documenting exiting conditions to determine baseline energy usage; (3) developing energy conservation measures (ECMs); and (4) determining ECM energy usage and corresponding energy savings for each ECM. The following are the primary ECMs to be assessed: 1. Lighting Systems — a. Perform field audit to document quantity, type, wattage, and light levels b. Investigate and documert the existing lighting systems and controls (If applicable) c. Determine baseline energy use from field collected data and customer supplied data (such as occupancy, special conditions, drawings, ete.) d. Provide a written report on the findings, cost to upgradelreplace the lighting systems, cost to install lighting control systems, development of projected material cost savings, and projected Energy Savings from the lighting retoflt/oontrols. 2. Water Usage a. Perform field audit to deternine quantity, type, and usage of all toilets, urinals, faucets, water heaters, and any other equipment that uses domestic water. b. Determine baseline energy use from field collected data and customer supplied data (such as occupancy, special conditions, drawings, review of original design criteria, etc.) c. Provide a written report on the findings, cost to upgrade/replace toilets, faucets, and other domestic water using equipment, and projected Water Consumption Savings from the upgrade/replacement work, HVAC Equipment and HVAC Control Systems a Perform field audit of all HVAC equipment and HVAC Controls to document quantity, type, and usage b. Determine baseline energy use from field collected data and customer supplied data (such as occupancy, special conditions, set points, trend data, drawings, review of original design criteria, etc.) c. Provide a written report on the findings, cost to upgradelreplace the HVAC Systems, cost to install a new HVAC Control System, and projected Energy Savings from the HVAC System upgrade/replacement and/or new HVAC Control System. 4. Building Envelope a. Perform field audit to determine applicability of window replacement. Findings will be identified in the Feasibility Report ter consideration by the Customer b. Building envelope (reflective roof coating, energy efficient windows, roof insulation) Schedule: Deliver IGA Report 90 days after notice to proceed. SUPPLEMENTAL AGREEMENT NO, 2 SCHEDULE E CONSTRUCTION AND IMPLEMENTATION ORDER • THIS SUPPLEMENTAL AGREEMENT NO. 2 SCHEDULE E CONSTRUCTION IMPLEMENTATION ORDER ("SCHEDULE E") (this "Schedule") for the Service Location(s) set Forth in Schedule A of Supplemental Agreement No• 2 is made and entered into as of the 271h day of January, 2011, 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 of Supplemental Agreement No. 2 dated as of January 27, 2011 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. Except as otherwise provided herein In the event of a conflict between the terms of the Master Agreement and this Schedule the terms of this Schedule will control. 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 10,3M I attached hereto, in accordance with the final accepted Design Document prepared by the Company pursuant to City of Miami Phase 1 IGA• The Company agrees to perform such Services for the compensation set forth herein, subject to the terms and conditions of the Master Agreement, Further detailed specifications, if any, agreed upon by the Parties with respect to the Services to be performed by the Company hereunder (Including, but not limited to, the designation of one or more Implementation Contractors approved by the Customer) are set forth in Appendix 11 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 Ill 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 tatting any other actions the Company may reasonably request from time to time to achieve the purpcses and intent of this Schedule and the Master Agreement. 3. inspections and Final Acceptance. During the performance of Services under this Schedule, the Customer shall have the right to inspect the work of the Company or any Implementation Contractor at .any lime 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 10 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. Trainlna, 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, ail as more fully specified in Appendix II. Unless otherwise provided in Appendix II, such training shall be conducted with respect to an ECO following the Final Acceptance Date of the ECO, 5. _ Price and Payment. 5.1 Schedule E Price, The Customer shall pay to the Cornpany the surn of as per the feasibility. study (not to exceed $2,701,916) for all Services performed by the Company pursuant to this Schedule. The Schedule E Price Is the full compensation for such Services and includes all federal, state and local taxes, if any, including safes, use and excise taxes, assessed with respect to the Services or 'with respect to the furnishing of equipment and materials hereunder, 5.2. Comoanv Provided. . Financing. Not Applicab.e. 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 #2 Schedule A: Designation of Service Locations 5.3.2 Supplemental Agreement #2 Schedule E: Construction and Implementation Order 5,3.3 Supplemental Agreement #2 Schedule E: Appendix i — Approved ECOs 5.3.4 Supplemental Agreement #2 Schedule E: Appendix II —Service Specifications 5.3.5 Supplemental Agreement #2 Schedule E: Appendix ill — Draw Schedule 5.3.6 Supplemental Agreement #2 Schedule E: Appendix IV — Preliminary Construction Schedule 5.3.7 Supplemental Agreement #2 Schedule E: Appendix V — Termination Schedule 5.3.8 Supplemental Agreement #2 Schedule E: Appendix VI — Special Terms and Conditions for City of Miami EECBG Award 5.4 Invoices. Notwithstanding any contrary term in Section 3,09 of the Master Agreement, all invo++ces shall be submitted to: Ajani Stewart, Environmental Coordinator Office of Sustainable Initiatives City of Miami 444 SW 2"° Ave, 5sh Floor Miami, FL 33130 6. Disclaimer of Warranties, The Customer acknowledges and agrees that the Company makes no representation or warranty of any kind with respect to the Services to be performed by the Company or ary 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 ack of funds, reduction of funds, and/or change in regulations. In the event of termination, the Customer shall pay the Company for work performed through the effective date of termination as determined in accordance with Section 8 below. 8. Termination Expense. In the event of a termination by the Customer pursuant to Section 7 above, the Company will be paid for work performed prior to the effective date of termination as substantiated by invoices and other suppling documentation reasonably acceptable to Customer; provided that such amounts will not exceed the cumulative amounts up to and including the month of the effective termination date as set forth in the Termination Schedule attached as Appendix V. The Company wilt 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 Carice fable, Notwithstanding Section 12,01 of the Master Agreement, upon payment of the termiration 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 unconlroverted 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. Ali 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 Consenvation Block Grants ("EECBG"). Company shall provide Information, documentation and cooperation reasonably necessary for the Customer to comply with its requirements set forth in Sections 1 through 21 of the SPECIAL TERMS AND CONDITIONS FOR CITY OF MIAMI EECBG AWARD, Attached as Schedule E, Appendix IV ("Appendix IV"). Company and the Work shall comply with Sections 22 through 30 of Appendix IV. 11. No Assignment Or Transfer, Except as provided in Secton 17.02 of the Master Agreement, the Company cannot assign, sell, pledge, encumber, dispose of or transfer this Schedule without the prior written approval of the City Commission. Any assignment, sale, encumbrance, pledge,, or disposition of this Schedule or any interest therein by the Company without prior City Commission approval shall result in the automatic termination of this Schedule under Article 15 of the Master Agreement upon prior Thlrty (30) days written notice by the Customer's City Manager. 12. Public Records. The Company understands that the public shall have access, as required by law, to Customer related documents created pursuant to or directly to this Agreement including without limitation data, and non-exempt public records as defined by Florida Statues, subject to the provisions of Chapter 119, Florida Statutes, and agrees to allow such access by the Customer and the public to ail documents subject to mandatory disclosure under applicable law. 13. Compliance With All Laws Applicable, The Company accepts this Schedule and hereby acknowledges that the Company's compliance with all applicable federal, state and local laws, ordinances, regulations, permits and similar approvals is a requirement of this Schedule, and the Company shall comply there with as the same presently exist and as they may be amended hereafter. 14. Ownership Of Improvements. Except as provided in Section 12.01 of the Master Agreement, as of the effective date of this schedule and thereafter all improvements shall be vested to the Customer. Furthermore, title to all ECOs made in or to the Service Locations, whether or not by or at the expense of the Company, shall, unless otherwise provided by written agreement or by Section 12.01 of the Master Agreement, immediately upon the comoletion of the Schedule become the property of the City and shall remain in custody, possession and control of the Customer which the Company will promptly convey as is warranted or requested. 15. Accounting Records. All records and accounts created pursuant or directly related to reimbursable costs under this Schedule, including invoices, bank statements or duplicate deposit slips, and all other supporting records created pursuant or directly related to this Schedule, shall be available for inspection and audit by the City and Its duly authorized agents or representatives during business hours, and shall be maintained in accordance with generally accepted accounting principles. The Company recognizes shall keep and preserve, or cause to be kept and preserved, said records for not Tess than thirty-six (36) months after the termination or expiration of this Schedule. For the same period of time, the Company shall also retain copies of all sales and tax returns covering its operations under this Schedule at the designated Service Locations, In its local office of operations, and any other governmental tax or other returns, which show the Company's reasonable costs, fees and expenses therein which directly related to this Schedule, and shall, upon demand, deliver photographic copies thereof to the Customer at no cost. The Company will cooperate with the Customer's internal auditors and/or such other auditors designated by the Customer in order to facilitate the City's examination of records and accounts created pursuant or directly related to this Schedule, IN WITNESS WHEREOF, the Parties hereto have executed this Schedule by and through their duly authorized representatives as of the date Frst hereinabove written. THE COMPANY: FPL Services, LLG By: Sam Forrest Its: Vice -President THE CUSTOMER: City of Miami By: Tony Crapp. Its: City Manager Attest: Priscilla A. Thompson City Clerk Approved as to insurance requirements: Approved as to legal form and correctness: Gary Reshefsky, Director Risk Management Division, Julie C. Bru City Attorney SCHEDULE E APPENDIX f - APPROVED ECOs Refer to City of Miami Phase 2 - IGA Dated TBD 2011 Note: Energy Conservation Opportunities (EGOS) to be implemented will be determined based on the results of the Feasibility Study (Schedule C) and the City Manager approve( of recommended ECOs. SCHEDULE E APPENDIX II - SERVICE SPECIFICATIONS Refer to City of Miami Phase 2 — IGA Dated TBD 2011 Note: Service specifications to be determined based on the results of the Feasibility Study (Schedule C) and the City Manager approval of recommended ECOs. SCHEDULE E APPENDIX III — DRAW SCHEDULE Payment Milestone Design and Development of IGA 30% Completion of Construction 75% Completion of Construction 90% Completion of Construction Execution of Certificate of Final Acceptance Tota I Amount Due For purposes of this Draw Schedule, the percentage of completion cf construction set forth above will be based on the percentage of completion of construction as set forth by actual invoices and mutually agreed upon between the Company and Customer. Nate: Total cost to be determined based on the results of the Feasibility Study (Schedule C) and the City Manager approval of recommended ECOs. SCHEDULE E APPENDIX IV - Preliminary Construction Schedule TBD Note: Construction schedule to be determined based on the results of the Feasibility Study (Schedule C) and the City Manager approval of recommended FCOs. SCHEDULE E APPENDIX V — Termination Schedule Description Cost Feasibility Study TBD Mobilization Fees TBD Month 1 -- Major Material TBD Month 2 •- Labor, Misc Material TBD Month 3 -- Labor, Misc Material TBD Month 4 -- Labor, Misc Material TBD Month 5 -- Labor, Misc Material TBD Month 6 -- Labor, Misc Material TBD Month 7 -- Labor, Misc Material TBD Month 6 -- Labor, Misc Material TBD Month 9 — Labor, Misc Material TBD Month 10 — Labor, Misc Material TBD Month 11 Labor, Misc Material TBD Total Project Cost TBD Note: Costs for termination schedule to be determined based on the results of the Feasibility Study (Schedule C) and the City Manager approval of recommended ECQs. SCHEDULE E APPENDIX VI — SPECIAL TERMS AND CONDITIONS FOR CITY OF MIAMI EECBG AWARD SPECIAL TERMS AND CONDITIONS FOR WORK FUNDED UNDER AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 (ARRA) Table of Contents Number Subject I. RESOLUTION OF CONFLICTING CONDITIONS 2. AWARD AGREEMENT TERMS AND CONDITIONS 1 3. ELECTRONIC AUTFIORIZATION OF AWARD DOCUMENTS 1 4. PAYMENT PROCEDURES - ADVANCES THROUGH THE AUTOMATED STANDARD • APPLICATION FOR PAYMENTS (ASAP) SYSTEM 5. CEILING ON ADMINISTRATIVE COSTS 2 6. LIMITATIONS ON USE OF FUNDS 2 7. INDIRECT COSTS AND FRINGE BENEFITS ARE NOT REIMBURSABLE 2 8, PRE -AWARD COSTS 2 9. USE OF PROGRAM INCOME 2 10. STATEMENT OF FEDERAL STEWARDSHIP 2 11. SITE VISITS 3 12. REPORTING REQUIREMENTS 3 13. PUBLICATIONS 3 14. FEDERAL, STATE, AND MUNICIPAL REQUIREMENTS 3 15. LOBBYING RESTRICTIONS 4 16, STAGED DISBURSEMENT ..4 17. NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) REQUIREMENTS 4 18. HISTORIC PRESERVATION 5 19, WASTE STREAM 5 20. DECONTAMINATION AND/OR DECOMMISSIONING (D&D) COSTS 6 21. SUBCONTRACT/SUBGRANT APPROVALS 6 22. ADVANCE UNDERSTANDING CONCERNING PUBLICLY FINANCED ENERGY IMPROVEMENT PROGRAMS 6 23. SPECIAL PROVISIONS RELATNG TO WORK FUNDED UNDER AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 (May 2009) 7 24. REPORTING AND REGISTRATION REQUIREMENTS UNDER SECTION 1512 OF THE RECOVERY ACT 10 25. NOTICE REGARDING THE PURCHASE OF AMERICAN-MADE EQUIPMENT AND PRODUCTS -- SENSE OF CONGRESS 1 1 26. REQUIRED USE OF AMERICAN IRON, STEEL, AND MANUFACTURED GOODS — SECTION 1605 OF THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009... ......... 1 1 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 REQUIREMENTS UNDER SECTION 1606 OF THE RECOVERY ACT 17 29. RECOVERY ACT TRANSACTIONS LISTED IN SCHEDULE OF EXPENDITURES OF FEDERAL AWARDS AND RECIPIENT RESPONSIBILITIES FOR INFORMING SUBRECIPIENTS 17 30. DAVIS-BACON ACT REQUIREMENTS 18 Company ("contractor" hereunder) shall perform all Services of this Schedule in conformance with the following requirements imposed upon Customer ("Recipient" hereunder) with respect to any portion of the Services funded under the ARRA: 1. RESOLUTION OF CONFLICTING CONDITIONS Any apparent inconsistency between Federal statutes and regulations and the terms and conditions contained in this award must be referred to the DOE Award Administrator far guidance. 2, AWARD AGREEMENT TERMS AND CONDITIONS This award/agreement consists of the Assistance Agreement, plus the following. a. Special Terms and Conditions. b, Attachments: - Attachment Number Title 1. Statement of Project Objectives 2. Federal Assistance Reporting Checklist and Instructions 3. Budget Pages (SF 424A) c. DOE Assistance Regulations, 10 CFR Part 600 at htrp://ecfr,gpoaccess.gov. d. Application/proposal as approved by DOE. e. National Policy Assurances to Be Incorporated as Award Terms in effect on date of award at http:/fmanagement.enerey.gov/business doe'l374.htm. 3. ELECTRONIC AUTHORIZATION OF AWARD 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. Acknowledgement via FedConnect by the Recipient's authorized representative constitutes the Recipient's electronic signature. 4. PAYMENT PROCEDURES - ADVANCES THROUGH THE AUTOMATED STANDARD APPLICATION FOR PAYMENTS (ASAP) SYSTEM a. Method of Payment. Payment will be made by advances through the Department of Treasury's ASAP system. b. Requesting Advances. Regeests 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 preportlonate share of any allowable indirect costs. If same - day transfers are not feasible, advance payments must be as close to actual disbursements as administratively feasible. c, Adjusting payment requests for available cash. You must disburse any funds that are avallable 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 eleetronle funds transfer to the bank account identified on the ASAP Bank Information Form that you tiled with the U.S, Department of Treasury. 1 5. CEILING ON ADMINISTRATIVE COSTS a. Local government and Indian Tribe Recipients may not use more than 10 percent of amounts provided under this program, orS75,000, whichever is greater (EISA Sec 545 (b)(3)(A)), for administrative expenses, excluding the costs of meeting the reporting requirements under Title V, Subtitle B of EISA. These costs should be captured and summarized for each activity under the Projected Costs Within Budget: Administration, b. Recipients are expected to manage their administrative costs. DOE will not amend an award solely to provide additional fiends 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 ! 0 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 OrFUNDS a. I3y accepting funds under this award: you agree that none of the funds obligated on the award shall be expended, directly or indireetly, for gambling establishments, aquariums, zoos, golf courses or swimming pools. b. Local government and Indian tribe Recipients may not use more than 20 percent of the amounts provided or $250,000, whichever is greater (EISA Sec 545 (b)(3)(I3)), for the establishment of revolving loan funds. c. Local government and Indian tribe Recipients may net use more than 20 percent of the amounts provided or $250,000, whichever is greater (EISA Sec 545 (b)(3)(C)), for subgrants to nongovernmental organizations for the purpose of assisting in the implementation of the energy efficiency and conservation strategy of the eligible unit of local government or Indian tribe. 7. INDIRECT COSTS AND FRINGE BENEFITS ARE NOT REIMBURSABLE The budget for this award does not include indirect costs or fringe benefits. Therefore, these expenses shall not be charged to nor reimbursement requested for this project nor shall the indirect and fringe benefit costs from this project be allocated to any other federally sponsored project. In addition, indirect costs or fringe benefits shall not be counted as cost share unless approved by the Contracting Officer. This restriction does not apply to sub-awardees' indirect or fringe benefit costs. S. PRE -AWARD COSTS You are entitled to reimbursement for costs incurred on or after February 17, 2009, as authorized by the pre - award costs letter dated August 20, 2009, if such costs are allowable in accordance with the applicable Federal cost principles referenced in 10 CFR Part 600. • 9. USE OF PROGRAM INCOME If you earn program income during the project period as a result of this award, you may add the program income to the funds committed to the award and used to further eligible project objectives. 10. STATEMENT OF FEDERAL STEWARDSHIP 2 DOE will exercise normal Federal stewardship in overseeing the project activities performed under this award. Stewardship activities include, but are not limited to, conducting site visits; reviewing performance and financial reports; providing technical assistance and/or temporary Intervention in unusual circumstances to correct deficiencies which develop during the project; assuring compliance with terms and conditions; and reviewing technical performance after project completion to ensure that the award objectives have been accomplished. 11. SITE VISITS DOE's authorized representatives have the right to make site visits at reasonable limes to review project accomplishments and management control systems and to provide technical assistance, If required. You must provide, and must require your sub-awardees to provide, reasonable access to facilities, office space, resources, and assistance for the safety and convenience of the government representatives in the performance of their duties. All site visits and evaluations must be performed in a manner that does not unduly interfere with or delay the work. 12. REPORTING REQUIREMENTS a. Requirements. The reporting requirements for this award are identified on the Federal Assistance Reporting Checklist, DOE F 4600.2, attached to this award. Failure to comply with these reporting requirements is considered a material noncompliance with the terms of the award. Noncompliance may result in withholding of future payments, suspension or termination of the current award, and withholding of future awards. A willful failure to perform, a history of failure to perform, or unsatisfactory performance of this and/or other financial assistance awards, may also result in a debarment action to preclude future awards by Federal agencies. b. Additional Recovery Act Reporting Requirements are found in the Provision below labeled: "REPORTING AND REGISTRATION REQUIREMENTS UNDER SECTION 1512 OF THE RECOVERY ACT." 13. PUBLICATIONS a. You are encouraged to publish or otherwise make publicly available the results of the work conducted under the award. b. An acknowledgment of DOE support and a disclaimer must appear in the publiceton orally 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] fadd names) ofother agencies, if applicable] under Award Nftmber(s) [enter the award number(s)]." Disclaimer: "This report was prepared as an account of work sponsored by an agency of the United States Government. Neither the United States Government nor any agency thereof, nor any of their employees, makes any warranty, express or implied, or assumes any legal liability or responsibility for the accuracy, completeness, or usefulness of any information, apparatus, product, or process disclosed, or represents that its use would not infringe privately owned rights. Reference herein to any specific commercial product, process, or service by trade name, trademark, manufacturer, or otherwise does not necessarily constitute or imply its endorsement, recommendation, or favoring by the United States Government or any agency thereof. The views and opinions of authors expressed herein do not necessarily state or reflect those of the United States Government or any agency thereof." 14. FEDERAL, STATE, AND MUNICIPAL REQUIREMENTS 3 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 13y accepting funds under this award, you agree that none of the funds obligated on the award shall be expended, directly or indirectly, to influence congressional action on any legislation or appropriation matters pending before Congress, other than to communicate to Members of Congress as described in 18 U.S.G. 1913. This restriction is in addition to those prescribed elsewhere in statute and regulation. 16. STAGED DISBURSEMENT a. The total funding allocation for this award, shown in Block 12 of the Assistance Agreement, will be obligated in full with this action; however, funds will be released according to a staged disbursement schedule. All funds must be expended within 36 months of the effective date of the award. ' I . The initial disbursement of funds is 50% of the total funding allocation. The amount identified on Page 2 of the Assistance Agreement will be released to the Recipient to begin work on the approved activities listed In the Statement of Project Objectives. If conditions are included in the terms and conditions of this award, upon satisfying the conditions, the Contracting Officer will lift the fitnding restrictions associated with the conditions and release the remainder of the initial disbursement of funds. 2. Project performance will be monitored and corrective action taken, as necessary to ensure acceptable performance under this award, After one 'or more progress reviews, in which the Recipient must demonstrate that it has made satisfactory progress on its activities; expended funds appropriately; complied with reporting requirements; and created jobs, the Contracting Officer will approve the release of the remaining balance of the total funding allocation. b. No additional fonds will be disbursed to the Recipient for payment, and DOE does not guarantee or assume any obligation to reimburse costs incurred by the Recipient, until the requirements of each progress review are met. Failure by the Recipient to demonstrate acceptable performance under this award will be deemed a noncompliance pursuant to 10 CFR 600. If a noncompliance occurs, the Contracting Officer may unilaterally terminate or suspend this award and deobligare the amounts obligated. In such case, the Recipient shall not be reimbursed for costs incurred at the ltecipient's.risk, as described above. 17. NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) REQUIREMENTS You are restricted from taking any action using Federal funds, which would have an adverse effect on the environment or limit the choice of reasonable alternatives prior to DOE providing either a NEPA clearance or a final NEPA decision regarding this project. 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 (I) purchasing any necessary equipment or related materials; or (2) conducting assessments, studies and other related administrative work. Recipient shall ensure the safety and structural integrity of any repair, replacement, construction and/or alteration performed under this project. The NEPA determination for the Miami Green Lab applies only to Energy Efficiency retrofits and upgrades. Recipient is restricted from distributing Federal funds on any other activities pending: (1) further submission by Recipient specifically identifying all activities authorized under this Program; and (2) a final NEPA determination from DOE regarding those activities. Energy Efficiency Retrofits in Existing City -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 (NHPA), consistent with DOE's 2009 letter of delegation of authority regarding the NHPA. Section 106 applies to historic properties that are listed in or eligible for listing in the National Register of Historic Places. in order to fulfill the requirements of Section 106, the recipient must contact the State Historic Preservation Officer (SHPO), and, if applicable, the Tribal Historic Preservation Officer (THPO), to coordinate the Section 106 review outlined in 36 CFR Part.800, SHPO contact information is available at the following link: http:(twww,ncshpo.org/findlindex.htm. MPG contact information is available at the following link: http://www,nathpo.orelmep.html . Section 110(k) of the NHPA applies to DOE funded activities. Recipients shall avoid taking any action that results in an adverse effect to historic properties pending compliance with Section 106. Recipients should be aware that the DOE Contracting Officer will consider the recipient in compliance with Sectiori 106 of the NHPA only after the Recipient has submitted adequate background documentation to the SHPO/THPO for its review, and the SHPO/THPO has provided written concurrence to the Recipient that it does not object to its Section 106 finding or determination. Recipient shall provide a copy of this concurrence to the Contracting Officer. 19. WASTE STREAM Prior to the expenditure of Federal funds to dispose of sanitary or hazardous waste, the Recipient is required to provide documentation to the Project Officer demonstrating that it has prepared a disposal plan for sanitary or hazardous waste generated by the proposed activities. Sanitary or hazardous waste includes, but is not limited to, old light bulbs, lead ballasts, piping, roofing material, discarded equipment, debris, asbestos, etc. 5 The DOE Contracting Officer shall consider compliance with this clause complete only after the Recipient has submitted adequate documentation to DOE for its review, and DOE has provided written approval to the Recipient of Its proposed plan to dispose of its sanitary or hazardous waste. 20, DECONTAMINATION AND/OR DECOMMISSIONING (D&D) COSTS Notwithstanding any other provisions of this Agreement, the Government shall not be responsible for or have any obligation to the Recipient for (i) Decontamination and/or Decommissioning (D&D) of any of the Recipient's facilities, or (li) any costs which may be incurred by the Recipient in connection with the D&D of any of its facilities due to the performance of the work under this Agreement, whether said work was performed prior to or subsequent to the effective date of the Agreement. 21. SUBCONTRACTISUBGRANT 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 subcontractlsubgrant must be approved by the DOE Contracting Officer. b. Upon the recipient's selection of the subcontractor(s)/subgrantee(s), and within 180 days of the award date in Block 27 of the Assistance Agreement, the recipient shall provide the following information for each, regardless of dollar amount: Name DUNS Number Award Amount Statement of work including applicable activities EF-I for all proposed activities c. In addition to the information in paragraph b. above, for each subeontracdsubgrant that has an estimated cost greater than 25% of the Total Allocation or $1,000,000, whichever is less, the recipient must submit a Statement of Objectives, SF42eA Budget Information Nonconstruction Programs, and Budget Justification. The DOE Contracting Officer may require additional information concerning these subcontract(s)/subgranl(s) prior to providing written approval. d. No funds shalt 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 of Energy intends to publish "Best Practices" or other guidelines pertaining to the use of funds made available to the Recipient under this award 6 pertaining to the programs identified herein. By accepting this award, the Recipient agrees to incorporate, to the maximum extent practicable, those Best Practices and other guidelines into any such program(s) within a reasonable time after notification by DOE that the Best Practices or guidelines have been made available. The Recipient also agrees, by its acceptance of this award, to require its sub -recipients to incorporate to the maximum extent practicable the best practices and other guideline into any such program used by the sub. recipient. • 23. SPECIAL PROVISIONS RELATING TO WORK FUNDED UNDER AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 (May 2009) Preis mbte The American Recovery and Reinvestment Act of 2009, Pub, L. 11 I-3, (Recovery Act) was enacted to preserve and create jobs and promote economic recovery, assist those most impacted by the recession, provide investments needed to increase economic efficiency by spurring technological advances in science and health, Invest in transportation, environmental protection, and other infrastructure that will provide long-term economic benefits, stabilize State and local government budgets, in order to minimize and avoid reductions in essential services and counterproductive State and local tax increases. Recipients shall use grant funds in a manner that maximizes job creation and economic benefit. The Recipient shall comply with all terms and conditions in the Recovery Act relating generally to governance, accountability, transparency, data collection and resources as specified in Act itself and as diseussed 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 it conjunction with other Sanding as necessary to complete projects, but tracking and reporting must be separate to meet the reporting requirements of the Recovery Act and related guidance. For projects funded by sources other than the Recovery Act, Contractors must keep separate records for Recovery Act funds and to ensure those records comply with the requirements of the Act. The Government has not fully developed the implementing instructions of the Recovery Act, particularly concerning specific procedural requirements for the new reporting requirements, The Recipient will be provided these details as they become available. The Recipient must comply with Et II requirements of the Act. If the recipient believes there is any Inconsistency between ARRA requirements and current award terms and conditions, the issues will be referred to the Contracting Officer for reconciliation. Definitions For purposes of this clause, Covered Funds means Funds expended or obligated from appropriations under the American Recovery and Reinvestment Act of 2009, Pub, L. 111-5. Covered Funds will have special accounting codes and will be identified as Recovery Act funds in the grant, cooperative agreement or TIA andlar modification using Recovery Act funds. Covered Funds must be reimbursed by September 30, 2015. Non -Federal employer means any emplbyer with respect to covered funds -- the contractor, subcontractor, grantee, or recipient, as the case may be, if the contractor, subcontractor, grantee, or recipient is an employer; and any professional membership organization, certification dottier professional body, any agent or licensee of the Federal government, or any person acting directly or indirectly in the interest of an employer receiving covered funds; or with respect to covered funds received by a State or local government, the State or local government receiving the funds and any contractor or subcontractor receiving the funds and any contractor or subcontractor of the State or local government; and does not mean any department, agency, or other entity of the federal government. Recipient means any entity that receives Recovery Act funds directly from the Federal government (including 7 Recovery Act funds received through grant, loan, or contract) other than an indiv Neal and includes a State that receives Recovery Act Funds. Special Provisions A. Flow Down Requirement Recipients must include these special terms and conditions in any subaward. B. Segregation of Costs Recipients must segregate the obligations and expenditures related to funding under the Recovery Act, Financial and accounting systems should be revised as necessary to segregate, track and maintain these funds apart and separate from other revenue streams. No part of the funds from the Recovery Act shall be commingled with any other binds or used for a purpose other than that of making payments for costs allowable for Recovery Act projects. C. Prohibition on Use of Funds None of the funds provided under this agreement derived from the American Recovery and Reinvestment Act of 2009, Pub, L. 111-5, may be used by any State or local government, or any private entity, for any casino or other gambling establishment, aquarium, zoo, golf course, or swimming pool. D. Access to Records With respect to each financial assistance agreement awarded utilizing at least some of the funds appropriated or otherwise made available by the American Recovery and Reinvestment Act of 2009, Pub. L. I 1 1-5, any representative of an appropriate inspector general appointed under section 3 or 80 of the Inspector General Act of 1988 {5 U.S.C. App.) or of the Comptroller General is authorized -- (1) to examine any records of the contractor or grantee, any of its subcontractors or subgrantees, or any State or local agency administering such contract that pertain to, and involve transactions that relate to, the subcontract, subcontract, grant, or subgrant: and (2) to interview any officer or employee of the contractor, grantee, subgrantee, or agency regarding such transactions. E. Publication An application may contain technical data and other data, including trade secrets and/or privileged or confidential Information, which the applicant does not want disclosed to the public or used by the Government for any purpose other than the application. To protect such data, the applicant should specifically identify each page including each line or paragraph thereof containing the data to be protected and mark the cover sheet of the application with the following Notice as well as referring to the Notice on each page to which the Notice applies: Notice of Restriction on Disclosure and Use of Data The data contained in pages ---- of this application have been submitted in confidence and contain trade secrets or proprietary information, and such data shall be used or disclosed only for evaluation purposes, provided that if this applicant receives an award as a result of or in connection with the submission of this application, DOE shall have the right to use or disclose the data here to the extent provided in the award. This restriction does not limit the Government's right to use or disclose data obtained without restriction from any source, including the applicant. Information about this agreement will be piblished on the Internet and linked to the website www.recovery.gov, maintained by the Accountability and Transparency Board. The Board may exclude posting contractual or other information on the website on a case -by -case basis when necessary to protect national security or to protect information that is not subject to disclosure under sections 552 and 552a of title 5, United States Code, F. protecting State and Local Government and Contractor Whistleblowers. The requirements of Section 1553 of the Act are summarized below. They include, but are not limited to: Prohibition on Reprisals: An employee of any non -Federal employer receiving covered funds under the American Recovery and Reinvestment Act of 2009, Pub. L. 1 11-5, may not be discharged, demoted, or otherwise discriminated against as a reprisal for disclosing, including a disclosure made in the ordinary course of an employee's duties, to the Accountability and 'Transparency Board, an inspector general, the Comptroller General, a member of Congress, a State or Federal regulatory or law enforcement agency, a person with supervisory authority over the employee (or other person working for the employer who has the authority to investigate, discover or terminate misconduct), a court or grant jury, the head of a Federal agency, or their representatives information that the employee believes is evidence of: - gross management of an agency contract or grant relating to covered funds; - a gross waste of covered funds; - a substantial and specific danger to public health or safety related to the implementation or use of covered funds; - an abuse of authority related to the implementation or use of covered Rinds; or - as violation of law, rule, or regulation related to an agency contract (including the competition for or negotiation of a contract) or grant, awarded or issued relating to covered funds. Agency Action: Not later than 30 days after receiving an inspector general report of an alleged reprisal, the head of the agency shall determine whether there is.sufficienr basis to conclude that the non -Federal employer has subjected the employee to a prohibited reprisal. The agency shall either issue en order denying relief in whole or in part or she] take ane 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 Incun'ed by the employee for or in connection with, bringing the complaint regarding the reprisal, as determined by the head of a court of competent jurisdiction. Nonenforceability of Certain Provisions Waiving Rights and remedies or Requiring Arbitration: Except as provided in a collective bargaining agreement, the rights and remedies provided to aggrieved employees by this section may not be waived by any agreement. policy, form, or condition of employment, including any predispute arbitration agreement. No predispute arbitration agreement shall be valid or enforceable if it requires arbitration of a dispute arising out of this section. Requirement to Post Notice of Rights and Remedies; Any employer receiving covered funds under the American Recovery and Reinvestment Act of 2009, Pub, L. 11 I-5, shall post notice of the rights and remedies as required therein, (Refer to section 1553 of the American Recovery and Re :nvestrnent Act of 2009, Pub. L, 111-5, www,Recovery.gov, for specific requirements of this section and prescribed language 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 9 credible evidence that a principal, employee, agent, contractor, sub -grantee, subcontractor or other person has submitted a false claim under the False Claims Act or has committed a criminal or civil violation of laws pertaining to fraud, conflict of interest, bribery, gratuity or similar misconduct involving those funds, i, Information in Support of Recovery Act Reporting Recipient may be required to submit backup documentation for expenditures of funds under the Recovery Act including such items as timecards and invoices. Recipient shall provide copies of backup documentation at the request of the Contracting Officer or designee. J. Availability of Funds Funds obligated to this award are available for reimbursement of costs until 36 months after the award date. K. Additional Funding Distribution and Assurance of Appropriate Use of Funds Certification by Governor For funds provided to any State or agency thereof by the American Reinvestment and Recovery Act of 2009, Pub. L. I l 1-5, the Governor of the State shall certify that: 1) the state will request and use funds provided by the Act; and 2) the funds will be used to create jobs and promote economic growth. Acceptance by State Legislature -- If funds provided to any State in any division of the Act are not accepted for use by the Governor, then acceptance by the State legislature, by means of the adoption of a concurrent resolution, shall be sufficient to provide funding to such State. Distribution -- After adoption ofa State legislature's concurrent resolution, funding to the State will be for distribution to local governments, councils of government, public entities, and public -private entities within the State either by formula or at the State's discretion. L. Certifications With respect to funds made available to State or local governments for infrastructure investments under the American Recovery and Reinvestment Act of 2009, Pub. L. 11 1•S, the Governor, mayor, or other chief executive, as appropriate, certified by acceptance of this award that the infrasmacture 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 interact. 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. REPORTING AND REGISTRATION REQUIREMENTS UNDER SECTION 1512 OF THE RECOVERY ACT (a) This award requires the recipient to complete projects or activities which are funded under the American Recovery and Reinvestment Act of 2009 (Recovery Act) and to report on use of Recovery Act funds provided through this award. Information from these reports will be made available to the public, (b) The reports are due no later than ten calendar days after each calendar quarter in which the Recipient receives the assistance award funded in whole or in part by the Recovery Act. 10 (c) Recipients and their first -tier subrecipients must maintain current registrations in the Central Contractor Registration (http://www.ccr.gov) at all times during which they have active federal awards funded with Recovery Act funds. A Dun and Bradstreet Data Universal Numbering System (DUNS) Number (http://www,dnb.com) is one of the requirements for registration in the Central Contractor Registration. (d) The recipient shall report the information described in section 1512(c) of the Recovery Act using the reporting instructions and data elements that will be provided online athttp://www.FederalReporting.gry and ensure that any information that is pre -filled is corrected or updated as needed. 25. NOTICE REGARDING THE PURCHASE OF AMERICAN-:MADE EQUIPMENT AND PRODUCTS -- SENSE OF CONGRESS It is,the sense of the Congress that, to the greatest extent practicable, all equipment and products purchased with funds made available under this award should be American -made. *Special Note: Definition of the Provisions entitled, "REQUIRED USE OF AMERICAN IRON, STEEL, AND MANUFACTURED GOODS — SECTION 1605 OF THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009" and "REQUIRED USE OF AMERICAN [RON, STEEL, AND MANUFACTURED GOODS (COVERED UNDER INTERNATIONAL AGREEMENTS) — SECTION 1605 OF THE AMERICAN RECOVERY AND REJNVESTMENT ACT OF 2009" will be done upon definition and review of final activities. 26. REQUIRED USE OF AMERICAN IRON, STEEL, AND MANUFACTURED GOODS -. SECTION 1605 OF THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 (a) Definitions. As used in this award term and condition— (1) Manufactured good means a good brought to the construction site for incorporation into the building or work that has been— (i) Processed into a specific form and shape; or (11) Combined with other raw material to create a material that has different properties than the properties of the individual raw materials, (2) Public building and public work means a public building of, and a public work of, a governmental entity (the United States; the District of Columbia; commonwealths, territories, and minor outlying islands of the United States; State and local governments; and multi -State, 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, clocks, piers, wharves, ways, lighthouses, buoys, jetties, breakwaters, levees, and canals, and the construction, alteration, maintenance, or repair of such buildings and works. (3) Steel means an alloy that includes at least 50 percent iron, between .02 and 2 percent carbon, and may include other elements. (b) Domestic preference. (1) This award term and condition implements Section 1605 of the American Recovery and Reinvestment Act of 2009 (Recovery Act) (Pub. L. 111-5), by requiring that all iron, steel, and 11 manufactured gods used in the project are produced in the United States except as provided in paragraph (b)(3) and (b)(4) of this section and condition. (2) This requirement does not apply to the material listed by the Federal Government as follows: To Be Determined (3) The award official may add other iron, steel, and/or manufactured goods to the list in paragraph (b)(2) of this section and condition lithe Federal Government determines that— (i) The cost of the domestic iron, steel, and/or manufactured goods would be unreasonable. The cost of domestic iron, steel, or manufactured goods used in the project is unreasonable when the cumulative cost of such material will increase the cost of the overall project by more than 25 percent; (ii) The iron, steel, and/or manufactured good is not produced, or manufactured in the United States in sufficient and reasonably available quantities and of a satisfactory quality; or (iii) The application of the restriction of section 1605 of the Recovery Act would be Inconsistent with the public interest. (c) Request for determination of inapplicability of Section 1605 of the Recovery Aci (1)(i) Any recipient request to use foreign iron, steel, and/or manufactured goods in accordance with paragraph (h)(3) of this section shall include adequate information for Federal Government evaluation of the request, including — (A) A description of the foreign and domestic iron, steel, and/or manufactured goods; (B) Unit of measure; (C) Quantity; (U) Cost; (E) Time of delivery or availability; (F) Location of the project; (G) Name and address of the proposed supplier; and (H) A detailed Justification of the reason for use of foreign iron, steel, and/or manufactured goods cited in accordance with paragraph (b)(3) of this section. (ii) A request based on unreasonable cost shall include a reasonable survey of :he market and a completed cost comparison table in the format in paragraph (d) of this section, (ili) The cost of iron, steel, and/or manufactured goods material shall include al! delivery costs to the constriction 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 12 obligated. 1f the recipient does not submit a satisfactory explanation, the award official need not make a • • determination. (2) If the Federal Government determines after funds have been obligated for a project for construction, alteration, maintenance, or repair that an exception to section 1605 of the Recovery Act applies, the award official will amend the award to allow use of the foreign iron, steel, and/or relevant manufactured goods. When the basis for the exception is nonavailability or public interest, the amended award shall reflect adjustment of the award amount, redistribution of budgeted funds, and/or other actions taken to cover costs associated with acquiring or using the foreign iron, steel, and/or relevant manufactured goods. When the basis for the exception is the unreasonable cost of the domestic iron, steel, or manufactured goods, the award official shall adjust the award amount or redistribute budgeted funds by at least the differential established in 2 CFR. 176_] 1D(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: Foreign and Domestic Items Cost Comparison Description Unit of measure Quantity Cost (dollars)* Item 1: Foreign steel, iron, or manufactured good Domestic steel, iron, or manufactured good Item 2: Foreign steel, iron, or manufactured good Domestic steel, iron, or manufactured good List name, address, telephone number, email address, and contact for suppliers surveyed. Attach copy of response; if oral, attach summary. Include other applicable supporting information. "Include all delivery costs to the construction site. 27. REQUIRED USE OF AMERICAN IRON, STEEL, AND MANUFACTURED GOODS (COVERED UNDER INTERNATIONAL AGREEMENTS) — SECTION 1605 OF THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 13 (a) Definitions. As used in this award term and condition — Designated country— (l) A World Trade Organization Government Procurement Agreement country (Aruba, Austria, Belgium, Bulgaria, Canada, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, Italy, Japan, Korea (Republic of), Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, and United Kingdom; (2) A Free Trade Agreement (PTA) country (Australia, Bahrain, Canada, Chile, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Israel,Mexico, Morocco, Nicaragua, Oman, Peru, or Singapore); or (3) A United States -European Communities Exchange of Letters (May 15, 1995) country; Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovak Republic, Slovenia, Spain, Sweden, and United Kingdom. Designated country iron, steel, and/or manufactured goods — (1) Is wholly the growth, product, or manufacture of a designated country; or (2) in the case of a manufactured good that consist in whole or in part of materials from another country, has been substantially transformed in a designated country into a new and different manufactured good distinct from the materials from which it was transformed. Domestic iron, steel, and/or manufactured good — (1) Is wholly the growth, product, or manufacture of the United States; or (2) In the case of a manufactured good that consists in whole or in part of materials from another country, has been substantially transformed in the United States into a new and different manufactured good distinct from the materials from which it was transformed. There is no requirement with regard to the origin of components or subcomponents in manufactured goods or products, as long as the manufacture of the goods occurs in the United States. Foreign iron, steel, and/or manufactured good means iron, steel and/or manufactured good that is not domestic ar designated country iron, steel, and/or manufactured good. Manufactured goad 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; ar (2) Combined with other raw material to create a material that has different properties than the properties of the individual raw materials. Public building and public work means a public building of, and a public work of, a governmental entity (the United States; the District of Columbia; commonwealths, territories, and minor outlying islands of the United States; State and local governments; and multi -State, regional, or interstate entities which have governmental functions). These buildings and works may include, without limitation, bridges, dams, plants, highways, parkways, streets, subways, tunnels, sewers, mains, power lines, pumping stations, heavy generators, railways, airports, terminals, docks, piers, wharves, ways, lighthouses, buoys, jetties, breakwaters, levees, and canals, and the construction, alteration, maintenance, or repair of such buildings and works. 14 Steel means an alloy that includes at least 50 percent iron, between .02 and 2 percent carbon, and may include other elements. (b) Iron, steel, and manufactured goods. (1) The award term and condition described in this section implements — (I) Section 1605(a) of the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5) (Recovery Act), by requiring that alt iron, steal, and manufactured goods used in the project are produced in the United States; and (ii) Section 1605(d), which requires application of the Buy American requirement in a manner consistent with U.S. obligations under international agrceincnts. The restrictions of section 1605 of the Recovery Act do not apply to designated country iron, steel, and/or manufactured goods. The Buy American requirement in section 1605 shall not be applied where the iron, steel or manufactured goods used in the project are from a Party to an international agreement that obligates the recipient to treat the goods and services of that Party the same as domestic goods and services. This obligation shall only apply to projects with an estimated value of S7,443,000 or more.. (2) The recipient shall use only domestic or designated country iron, steel, and manufactured goods in performing the work funded in whole or part with this award, except as provided in paragraphs (b)(3) and (b)(4) of this section, (3) The requirement in paragraph (b)(2)of this section does not apply to the iron, steel, and manufactured goods . listed by the Federal Government as follows: To Be Determined . (4) The award official may add other iron, steel, and manufactured goods to the list in paragraph (b)(3) of this section if the Federal Government determines that— (i) The cost of domestic iron, steel, and/or manufactured goods would be unreasonable. The cost of domestic iron, steel, and/or manufactured goods used in the project is unreasonable when the cumulative cost of such material will increase the overall cost of the project by more than 25 percent; (ii) The iron, steel, and/or manufactured good is not produced, or manufactured in the United States in sufficient and reasonably available commercial quantities of a satisfactory quality; or (iii) The application of the restriction of section 1605 of the Recovery Act would be inconsistent with the public interest, (c) Request for determination of inapplicability of section 1605 of the Recovery Act or the fatty Americans Act. (1)(i) Any recipient request to use foreign iron, steel, and/or manufactured goods in accordance with paragraph (b)(4) of this section shall include adequate information for Federal Government evaluation of the request, including — (A) A description of the foreign and domestic iron, steel, and/or manufactured goods; (B) Unit of measure; (C) Quantity; .15 • (D) Cost; (E) Time of delivery or availability; (F) Location of'the project; (G) Name and address of the proposed supplier; and (H) A detailed justification of the reason for use of foreign iron, steel, and/or manufactured goods cited in accordance with paragraph (b)(4) of this section. (li) A request based on unreasonable cost shall include a reasonable survey of the market and a completed cost comparison table in the format in paragraph (d) of this section. (iii) The cost of iron, steel, or manufactured goods shall include all delivery costs to the construction site and any applicable duty. (iv) Any recipient request fora determination submitted after Recovery Act funds have been obligated for a project for construction, alteration, maintenance, ar repair shall explain why the recipient could not reasonably foresee the need for such determination and could not have requested the determination before the funds were obligated. If the recipient does not submit a satisfactory explanation, the award official need not make a determination. (2) If the Federal Government determines after funds have been obligated for a project for construction, alteration, maintenance, or repair that an exception to section 1605 of the Recovery Act applies, the award official will amend the award to allow use of the foreign iron, steel, and/or relevant manufactured goods, When the basis for the exception is nonavailability or public interest, the amended award shall reflect adjustment of the award amount, redistribution of budgeted fiends, and/or other appropriate actions taken to cover costs associated with acquiring ar 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 fends, as appropriate, by at least the differential established in 2 CFR 176.1 l0(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 I: Foreign steel, iron, or manufactured good Domestic steel, iron, or manufactured good 16 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 UNDER SECTION 1606 OF THE RECOVERY ACT (a) Section 1606 of the Recovery Act requires that all laborers and mechanics employed by contractors and subcontractors on projects funded directly by or assisted in whole or in part by and through the Federal Government pursuant to the Recovery Act shall be paid wages at rates not less than those prevailing on projects of a character similar in the locality as determined by the Secretary of Labor in accordance with subchapter IV of chapter 31 of title 40, United States Code. Pursuant to Reorganization Plan No. 14 and the Copeland Act, 40 U.S.C. 3145; the Department of Labor has issued regulations at 29 CFR parts 1, 3, and 5 to implement the Davis -Bacon and related Acts, Regulations in 29 CFR 5,5 instruct agencies concerning application of the standard Davis -Bacon contract clauses set forth in that section. Federal agencies providing grants, cooperative agreements, and loans under the Recovery Act shall ensure that the standard Davis -Bacon contract clauses found in 29 CFR 5.5(a) are incorporated in any resultant coveted contracts that are in excess of $2,000 for construction, alteration or repair (including painting and • decorating). (b) For additional guidance on the wage rate requirements of section 1606, contact your awarding agency. Recipients of grants, cooperative agreements and loans should direct their initial inquiries concerning the application of Davis -Bacon requirements to a particular federally assisted project to the Federal agency funding the project. The Secretary of Labor retains final coverage authority under Reorganization Plan Number 14. 29. RECOVERY ACT TRANSACTIONS LISTED IN SCHEDULE OF EXPENDITURES OF FEDERAL AWARDS AND RECIPIENT RESPONSIBILITIES FOR INFORMING SUBRECIPIENTS (a) To maximize the' transparency and accountability of funds authorized under the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5) (Recovery Act) as required by Congress and in accordance with 2 CFR 215,21 "Uniform Administrative Requirements for Grants and Agreements" and OMB Circular A-102 Common Rules provisions, recipients agree to maintain records that identify adequately the source and application of Recovery Act funds, OMB Circular A-102 is availabie at hap://www.whitehouse.goviombkirculars/a 102/a102. htm1. (b) For recipients covered by the Single Audit Act Amendments of 1996 and OMB Circular A--133, "Audits of States, Local Governments, and Non -Profit Organizations," recipients agree to separately identify the expenditures for Federal awards under the Recovery Act on the Schedule of Expenditures of Federal Awards (SEFA) and the Data Collection Form (SF —SAC) required by OMB Circular A-133. OMB Circular A-133 is 17 available at httpJ/www.whirehouse.govlomb/circulars/a133/a133,hfm1. 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 fund. 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 subrecipient expenditure ofARR.A funds as well as oversight by the Federal awarding agencies, Offices of inspector General and the Government Accountability Office. 30. DAVIS-BACON ACT REQUIREMENTS Note: Where necessary to make the context of these articles applicable to this award, the term "Contractor" shall mean 'Recipient" and the term "Subcontractor" shall mean "Subrecipient or Subcontractor" per the following definitions. Recipient means the organization, individual, or other entity that receives an award from DOE and is financially accountable for the use of any. DOE funds or property provided for the performance of the project, and is legally responsible for carrying out the terms and conditions of the award. Subrecipient means the legal entity to which a subaward is made and which is accountable to the recipient for the use of the funds provided. The term may include foreign or international organizations (such as agencies of the United Nations). Davis -Bacon Act (a) Definition. --"Site of the work"-- (1) lv1 eans-- (i) The primary site of the work. The physical place or places where the construction called for in the award will retrain when work on it is completed; and (ii) The secondary site of the work, if any, Any other site where a significant portion of the building or work is constructed, provided that such site is -- (A) Located in the United States; and (B) Established specifcally for the performance of the aw'ard or project; (2) Except as provided in paragraph (3) of this definition, includes any fabrication plants, mobile factories, batch plants, borrow pits, job headquarters, tool yards, etc., provided-- (i) They are dedicated exclusively, or nearly so, to performance of the award or project; and (ii) They are adjacent or virtually adjacent to the "primary site of the work" as defined in paragraph (a)( OW, or 18 the "secondary site of the work" as defined in paragraph (a)(1)(ii) of this definition; (3) Does not include permanent home offices, branch plant establishments, fabrication plants, or tool yards ofa Contractor or subcontractor whose locations and continuance in operation are determined wholly without regard to a particular Federal award or project. In addition, fabrication plants, batch plants, borrow pits, job headquarters, yards, etc,, ofa commercial or material supplier which are established by a supplier of materials for the project before opening of bids and not on the Project site, are not included in the "site of the work." Such 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 aware;. (b) (l) All laborers and mechanics employed or working upon the site of the work will be paid unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by regulations issued by the Secretary of Labor under the Copeland Act (29 CFI3. Part 3)), the full amount of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment computed at rates not less than those contained in the wage determination of the Secretary of Labor which is attached hereto and made a part hereof, or as may be incorporated for a secondary site of the work, regardless of any contractual relationship which may be alleged to exist between the Contractor and such laborers and mechanics. Any wage determination incorporated for a secondary site of the work shall be effective from the first day on which work under the award was performed at that site and shall be incorporated without any adjustment in award price or estimated cost. Laborers employed by the construction Contractor or construction subcontractor that are transporting portions of the building or work between the secondary site of the work and the primary site of the work shalt be paid in accordance with the wage determination applicable to the primary site of the work. (2) Contributions made or costs reasonably anticipated for bona fide fringe benefits under section I (h)(2) of the Davis -Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of paragraph (e) of this article; also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs which cover the particular weekly period, are deemed to be constructively made or incurred during such period. (3) Such laborers and mechanics shall be paid not less than the appropriate wage rate and fringe benefits in the wage determination for the classification of work actually performed, without regard to skill, except as provided in the article entitled Apprentices and Trainees. Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each.classification for the time actually worked therein; provided, that the employer's payroll records accurately set forth the time spent in each classification in which work is performed. . (4) The wage determination (including any additional classifications and wage rates conformed under paragraph (c) of this article) and the Davis -Bacon poster (WH-1321) shall be posted at all times by the Contractor and its subcontractors at the site of the work in a prominent and accessible place where it can be easily seen by the workers. (c) (1) The Contracting Officer shall require that any class of laborers or mechanics which is not listed in the wage determination and which is to be employed under the award shall be classified in conformance with the wage determination, The Contracting Officer shall approve an additional elassification and wage rate and fringe benefits therefore only when all the following criteria have been met: (i) The work to he 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. 19 (2) If the Contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives and the Contracting Officer agree on the classification and wage rate (including the amount designated for fringe benefits, where appropriate), a report of the action taken shall be sent by the Contracting Officer to the Administrator of the: . Wage and Hour Division Employment Standards Administration U.S. Department of Labor 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 their representatives, and the Contracting Officer do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), the Contracting Officer shall refer the questions, including the views of all interested parties and the recommendation of the Contracting Officer, to the Administrator of the Wage and Hour Division for determination. The Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise the Contracting Officer or will notify the Contracting Officer within the 30-day period that additional time is necessary. (4) The wage rate (including fringe benefits, where appropriate) determined pursuant to subparagraphs (c)(2) and (c)(3) of this article shall be paid to all workers performing work in the classification under this award from the first day on which work is performed in the classification. (d) Whenever the minimum wage rate prescribed in the award for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the Contractor shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof. (e) If the Contractor does not make payments to a trustee or other third person, the Contractor may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program; provided, that the Secretary of Labor has found, upon the written request of the Contractor, that the applicable standards of the Davis -Bacon Act have been met. The Secretary of Labor may require the Contractor to set aside in a separate account assets for the meeting of obligations under the plan or program. Rates of Wages - Prior Approval for Proceeding with Davis -Bacon Construction Activities If the Recipient determines at any time that any construction, alteration, or repair activity as defined by 29 CFR 5,2(j) (http:llefr,vlex.com/vid/5-2-definitions-19681309) will be performed during the course of the project, the Recipient shall request approval from the Contracting Officer prior to commencing such work. If the Contracting Officer concurs with the Recipient's determination, the Recipient must receive Contracting Officer approval to proceed with such activity, and must comply with all applicable Davis -Bacon requirements, prior to commencing such work. A modification to the award which incorporates the appropriate Davis -Bacon wage rate determination(s) will constitute the Contracting Officer's approval to proceed. If the Contracting Officer does not concur with the Recipient's determination, the Contracting Officer will so notify the Recipient in writing. 20 City of Miami Legislation Resolution R-17-0475 City Hall 3500 Pan American Drive Miami, FL 33133 www.miamigov.com File Number: 2900 Final Action Date: 9/28/2017 A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), ADOPTING A FINAL BUDGET AND MAKING APPROPRIATIONS RELATING TO OPERATIONAL AND BUDGETARY REQUIREMENTS FOR THE FISCAL YEAR BEGINNING OCTOBER 1, 2017 AND ENDING SEPTEMBER 30, 2018; RATIFYING, APPROVING, AND CONFIRMING CERTAIN NECESSARY ACTIONS OF THE CITY MANAGER AND DESIGNATED CITY OF MIAMI DEPARTMENTS IN ORDER TO UPDATE THE RELEVANT FINANCIAL CONTROLS, PROJECT CLOSE-OUTS, ACCOUNTING ENTRIES, AND COMPUTER SYSTEMS IN CONNECTION THEREWITH AND FOR GRANTS IN PROGRESS; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, pursuant to Sections 200.065(2)(a)(4) and (2)(c), Florida Statutes (2017), the City Manager previously has prepared and submitted to the City Commission a Proposed Budget of the expenditures and revenues of all City of Miami ("City") Departments, Offices, and Boards for the Fiscal Year beginning October 1, 2017 and ending September 30, 2018 ("Fiscal Year 2017-18"); and WHEREAS, on September 19, 2017, the City held a public hearing as required pursuant to Section 200.065(2)(c), Florida Statute (2017), whereat the City Commission adopted the proposed budget as the tentative budget of the City pursuant to Resolution No. R-17-0447 on September 19, 2017; and WHEREAS, the General Fund Budget for Fiscal Year 2017-18 is $726,828,000 and the total Budget for all non -capital funds is $1,060,940,000; and WHEREAS, the City's final general operating ad valorem millage rate is 7.4365; and WHEREAS, the major source of revenue for the General Fund is derived from the category identified as "Property Taxes" in the amount of $325,976,000; and WHEREAS, this proposed budget recommends to elevate the City's zoning and planning functions to the status of stand-alone departments herein separately to be called the Planning Department and the Office of Zoning; and WHEREAS, this proposed budget recommends the creation of a new department to be named Veterans Affairs and Homeless Services in which the Homeless Assistance Program functions, previously under the Neighborhood Enhancement Teams Department, will fall within the scope of the newly created department; and WHEREAS, by separate Resolution No. R-17-0445, adopted September 19, 2017, the City has amended its Multi -Year Capital Plan ("Plan") and it is in the best interests of the City to authorize the City Manager to make any further other necessary changes to adjust, amend, and appropriate for the Plan to make changes corresponding to this Resolution; and WHEREAS, it is in the best interests of the City to authorize the City Manager to make City of Miami Page 1 of 8 File ID: 2900 (Revision: A) Printed On: 11/3/2017 File ID: 2900 Enactment Number: R-17-0475 any further necessary changes to adjust, amend, and appropriate the City's Operating Budget, Five -Year Financial Plan, and Strategic Plan, all for the purposes set forth in this Resolution; and WHEREAS, it is in the best interests of the City to ratify, approve, and confirm certain necessary actions of the City Manager and designated City Departments in order to update the relevant financial controls, project close-outs, accounting entries, and computer systems in connection therewith and for grants in progress; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Resolution are adopted by reference and incorporated as fully set forth in this Section. Section 2. The City Manager has recommended a tentative budget, including the Five -Year Financial Plan, for the City for Fiscal Year 2017-18. Section 3. The Tentative Budget is attached and incorporated herein by reference and is amended to include all of the applicable changes contained in the memorandum entitled "Information for Second Budget Hearing — Fiscal Year 2017-18 Proposed Budget" dated September 22, 2017, as well as three (3) floor amendments: • Adding a General Fund allocation of $75,000 to "Transfers Out to Capital" for the limbo's Lagoon Project (40-B183404) and delegating authority to the City Manager to amend the FY 2017-18 Capital Plan in a like amount; • Adding a General Fund allocation of $325,000 to the Police Department for the Shotspotter Program; and • Explaining that the additional funds allocated for the Camillus House are for the bed program, not the mat program as was written in the September 22, 2017 memorandum; and is to become the Final Budget for the City, as hereby adopted. Section 4. The following appropriations are made for the municipal operations of the General Fund for the Fiscal Year 2017-18: City of Miami Page 2 of 8 File ID: 2900 (Revision: A) Printed on: 1113/2017 Fife ID: 2900 Enactment Number: R-17-0475 GENERAL FUND APPROPRIATIONS ADOPTED BUDGET Departments, Boards and Offices: Mayor $ 1,333,000 $ 1,333,000 Commissioners 3,602,000 3,602,000 City Manager 3,916,000 3,916,000 Office of Agenda Coordination 397,000 397,000 Auditor General 1,126,000 1,126,000 City Attorney 8,418,000 8,418,000 City Clerk 1,753,000 1,753,000 Civil Services 428,000 428,000 Code Compliance 6,728,000 6,728,000 Office of Communications 1,592,000 1,592,000 Equal Opportunity and Diversity Programs 438,000 438,000 Office of Film and Entertainment 424,000 424,000 Finance 8,873,000 8,873,000 Grants Administration 1,741,000 1,741,000 Human Resources 4,603,000 4,603,000 Information Technology 1-0,38 000 10,956,000 Management and Budget 2,843,000 2,843,000 Neighborhood Enhancement Teams (NET) 6,514,000 6,514,000 Procurement 2,701,000 2,701,000 Office of Resilience and Sustainability 785,000 785,000 Veterans Affairs and Homeless Services (New Department) 1,657,000 1,722,000 Building Department 12,533,000 12,533,000 Planning Department (Change of Department Name) 1,707,000 4,763,000 Office of Zoning (Change of Department Name) 2,305,000 2,305,000 Community and Economic Development 2,411,000 2,411,000 General Services Administration 23,067,000 23,067,000 Public Works Department 21,111,000 21,111,000 Solid Waste 33,291,000 33,291,000 Office of Capital Improvements 3,252,000 3,252,000 Fire -Rescue 130,864,000 130,864,000 Police 235,161,000 235,486,000 Real Estate and Asset Management 12,052,000 12,052,000 Parks and Recreation 44,752,000 44,752,000 Risk Management 2,920,000 2,920,000 Non -Departmental 55,839,000 55,051,000 Transfers -OUT 71,810.000 72,077,000 TOTAL GENERAL FUND $ 726,828,000 $ 726,828,000 Reserves Based on Financial Integrity Principles: (Included in General Fund — NDA) Contingency Reserves $ 5,000,000 Undesignated Reserves TOTAL RESERVES $ 5,000,000 Section 5. The above appropriations for the municipal operations of the General Fund are made based on the following sources of revenues for Fiscal Year 2017-18: City of Miami Page 3 of 8 File !O: 2900 (Revision: A) Printed on: 11/3/2017 File ID: 2900 Enactment Number: R-17-0475 GENERAL FUND REVENUES Property Taxes $ 325,976,000 Franchise Fees and Other Taxes 110,344,000 Interest 2,500,000 Transfers -I N 6,464,000 Fines and Forfeitures 15,743,000 Intergovernmental Revenues 67,662,000 Licenses and Permits 65,738,000 Other Revenues (Inflows) 22,728,000 Charges for Services 109,673,000 TOTAL GENERAL FUND $ 726,828,000 Section 6. The following appropriations are made for the municipal operations of Debt Service Funds for Fiscal Year 2017-18; DEBT SERVICE FUNDS APPROPRIATONS General Obligation Bonds $ 27,978,000 Special Obligation Bonds 51,984,000 TOTAL DEBT SERVICE FUNDS $ 79,962,000 Section 7. The above appropriations for the municipal operations of Debt Service Funds are made based on the following sources of revenues for Fiscal Year 2017-18: DEBT SERVICE FUNDS REVENUES Property Taxes $ 27,978,000 Transfers -IN and Other Revenues 51,984,000 TOTAL DEBT SERVICE FUNDS $ 79,962,000 Section 8. The following appropriations are made for the municipal operations of Special Revenue Funds for Fiscal Year 2017-18: City of Miami Page 4 of 8 File ID: 2900 (Revision: A) Printed on: 11/3/2017 File ID: 2900 Enactment Number: R-17-0475 SPECIAL REVENUE FUNDS APPROPRIATIONS ADOPTED BUDGET Bayfront/Riverfront Land Acquisition Rouse Trust $ 1,420,000 $ 1,420,000 City Clerk Services 749,000 749,000 Community Development 50,231,000 50,231,000 Real Estate and Asset Management Services 1,119,000 1,119,000 Departmental Improvement Initiative 44000 11,343,000 Emergency Funds 100,000 100,000 Fire -Rescue Services 3,087,000 3,087,000 General Special Revenue 875,000 875,000 Homeless Program 2,535,000 2,535,000 Law Enforcement Trust Fund 2,4442,000 2,442,000 Miami Ballpark Parking Facilities 5,127,000 5,127,000 Parks and Recreation Services 2,176,000 2,176,000 Planning Services 13,320,000 13,320,000 Police Services 13,089,000 13,169,000 Public Works Services 17,027,000 17,027,000 Solid Waste Recycling Educational Trust Fund 151,000 151,000 Transportation and Transit 20,631,000 20,631,000 Tree Trust Fund 3,980,000 3,980,000 UASI-Fire-Rescue 14,629,000 14,629,000 TOTAL SPECIAL REVENUE FUNDS $ 163,839,000 $ 164,111,000 Section 9. The above appropriations for the municipal operations of Special Revenue Funds are made based on the following sources of revenues for Fiscal Year 2017-18: SPECIAL REVENUE FUNDS REVENUES All Sources TOTAL SPECIAL REVENUE FUNDS $ 164,111,000 $ 164,111,000 Section 10. The following appropriations are made for the municipal operations of Internal Service Funds for Fiscal Year 2017-18: INTERNAL SERVICE FUND APPROPRIATIONS Life and Health Insurance $ 53,665,000 Workers" Compensation 18,150,000 Others 18,224,000 TOTAL INTERNAL SERVICE FUND $ 90,039,000 Section 11. The above appropriations for the municipal operations of Internal Service Funds are made based on the following sources of revenues for Fiscal Year 2017-18: INTERNAL SERVICE FUND REVENUES All Sources TOTAL INTERNAL SERVICE FUND $ 90,039,000 $ 90,039,000 Section 12. This Resolution is a resolution of precedent and all other resolutions in conflict with it are held null and void insofar as they pertain to these appropriations; however, no provision contained in this Resolution shall be construed to violate the Anti -Deficiency Act, as City of Miami Page 5 of 8 File ID: 2900 (Revision: A) Printed on: 1113/2017 File ID: 2900 Enactment Number: R-17-0475 set forth in Sections 18-500 through Sections 18-503 of the Code of the City of Miami, Florida, as amended ("City Code"). The appropriations are the anticipated expenditure requirements for the City but are not mandatory should efficient administration of City Departments and Boards or altered economic conditions indicate that a curtailment in certain expenditures is necessary or desirable for the general welfare of the City. The City Manager is specifically authorized to create awards and to transfer funds between accounts and awards, and to withhold any of these appropriated funds from encumbrance or expenditure should such action appear advantageous to the economic and efficient operation of the City. The City Manager is also authorized to transfer any excess unrestricted moneys from other funds to the General Fund provided that those are appropriated moneys which are no longer needed to implement the original purpose of the appropriation, which are legally available at the time of such transfer, and whose expenditure is not limited to use for any other specified purpose. Section 13. The City Manager is authorized to make any further necessary changes to adjust, amend, and appropriate the City's Operating Budget, Five -Year Financial Plan, Strategic Plan, and the Multi -Year Capital Plan, with transfers in and/or out, as necessary and applicable, of legally available funds, and to designate projects, services, components, values, amounts, and uses, as necessary and applicable, for purposes set forth in this Resolution. Section 14. All departments and the number of employees designated therein provided for in this budget either by position summary or by the organizational chart are deemed approved by the City Commission. Any permanent change regarding same shall require City Commission approval. Section 15. The City Manager is authorized to administer the executive pay plan and benefit package to disburse the funds appropriated herein for said purpose in a manner he or she deems appropriate. The City Manager is also authorized to administer and disburse the City Commission benefit package. With the exception of those positions in which the salary is established by City Commission action, the City Manager is further authorized to establish the salaries of those employees in executive and staff positions in accordance with the executive and staff pay plan. These employees may receive any salary increases given in Section 16. Section 16. The City Manager is authorized to disburse any funds that may be designated by the City Commission as cost -of -living or other pay adjustments to Civil Service, executive, and staff employees as may be approved by the City Manager. Section 17. Nothing contained in this Resolution shall be construed as to prohibit or prevent the City Manager, the administrative head of the City, who is responsible for the efficient administration of all Departments from exercising the power granted to and imposed upon him or her in the Charter of the City of Miami ("Charter") to fix, adjust, raise, or lower salaries and to create, abolish, fill, or hold vacant, temporary, or permanent positions whenever it has been determined by the City Manager to be in the best interest of efficient and economical administration of the City and all its Departments. The authority contained in this Section shall also be applicable whenever the City Manager shall cause a Department to reorganize itself to perform its services more efficiently. Such reorganization may include reduction of budgeted positions, reclassification of positions, and alteration of the number of budgeted positions in any given classification. Section 18. The transfer of funds between the detailed accounts comprising any separate amount appropriated by the above Sections hereof is approved and authorized when such transfer shall have been made at the request of the City Manager and when such transfer shall have been made of any part of an unencumbered balance of an appropriation to or for a City of Miami Page 6 of 8 File ID: 2900 (Revision: A) Printed on: 11/3/2017 File ID: 2900 Enactment Number: R-17-0475 purpose or object for which the appropriation for the herein fiscal year has proved insufficient. Section 19. The transfer of funds between the detailed accounts comprising any separate amount appropriated by the above sections hereof is approved and authorized when such transfer of funds is made at the request of the City Manager and when such transfer is to be made between the detailed accounts appropriated to the same office, department, or division. Section 20. To effect salary adjustments, the City Manager is further authorized to make departmental and other transfers from any reserve accounts established in the General Fund and is authorized to approve transfers for any unforeseen requirements of all appropriated funds as may be required so long as such transfer is consistent with the provisions contained in Chapter 18, Article IX of the City Code. Section 21 To facilitate effective budgetary control and sound fiscal management, the City Manager is further authorized to transfer funds from departmental budget reserve accounts to the Emergency Account of Non -Departmental Accounts to other Funds and to departmental budget reserve accounts from the Emergency Account of Non -Departmental Accounts to other Funds. Section 22. The Emergency Account is declared to be appropriated to meet emergency expenses and is subject to expenditure by the City Manager for any emergency purpose. Section 23. Except as herein provided, transfers between items appropriated shall be authorized by resolution amendatory hereto, except that transfers from the Non -Departmental Accounts may be made by resolution. Section 24. The City Manager is authorized to invite or advertise for bids for the purchase of any material, equipment, physical improvement, or service provided by the aforementioned appropriations or which may be provided for in accordance with the authority of Chapter 18 of the City Code, for which formal bidding is required, such bids to be returnable to the City Commission or City Manager in accordance with Charter or City Code provisions. Section 25. Further, expenditure of the herein appropriated funds is authorized in the procurement of goods and services by award or contract for the same by the City Commission following the use, if applicable, of competitive negotiations unless the award of such contract by the City Manager is expressly allowed under City Code provisions. Section 26. Certain necessary actions by the City Manager and the designated City Departments in order to update the relevant financial controls, project close-outs, accounting entries, and computer systems in connection therewith and for grants in progress, are hereby ratified, approved, and confirmed. Section 27. This Resolution shall become effective immediately upon its adoption and signature of the Mayor.' 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 City Code provisions. City of Miami Page 7 of 8 File ID: 2900 (Revision: A) Printed on: 11/3/2017 File ID: 2900 Enactment Number: R-17-0475 APPROVED AS TO FORM AND CORRECTNESS: ndez, ity , ttor' ey 9/29/2017 {2} If the Mayor does not sign this Resolution, it shall become effective at the end of ten (10) 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. City of Miami Page 8 of 8 File ID: 2900 (Revision: A) Printed on: 11/3/2017