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Resolution 2018-30505 RESOLUTION NO. 2018-30505 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING THE TERMINATION FOR CONVENIENCE OF THE ENERGY SAVINGS AGREEMENT BETWEEN THE CITY OF MIAMI BEACH, FLORIDA AND AMERESCO, INC., DATED MAY 25, 2010, WITH RESPECT TO CERTAIN ENERGY CONSERVATION MEASURES IN BUILDINGS OWNED AND OPERATED BY THE CITY; AND AUTHORIZING THE CITY MANAGER TO EXERCISE THE CITY'S RIGHT TO TERMINATION FOR CONVENIENCE, IN ACCORDANCE WITH SECTION 10.10 OF THE AGREEMENT. WHEREAS, on May 12, 2010, the Mayor and City Commission adopted Resolution No. 2010-27397, approving an Energy Savings Agreement with Ameresco, Inc. ("Ameresco") for the purpose of providing energy conservation measures ("ECMs") consisting of systems, services and facilities designed to reduce energy consumption and costs in buildings owned and operated by the City, as well as a Geothermal District Cooling Plant; and WHEREAS, on May 25, 2010, following the conclusion of negotiations, the City and Ameresco, Inc. executed an agreement (the "Agreement"); and WHEREAS, the Agreement incorporated six (6) ECMs that were accepted by the Mayor and City Commission on September 2, 2009, which ECMs were identified and found to be feasible by Ameresco, including: Facility Lighting and Lighting Controls Upgrade, Domestic Water Conservation, HVAC Control, Geothermal District Cooling Plant, Geothermal Cooling Police Station, and Power Transformer Replacement; and WHEREAS, following the installation and acceptance of the ECMs, the Agreement provided for a thirteen (13) year Energy Savings Guaranty period, whereby Ameresco guaranteed certain specified levels of energy savings; and WHEREAS, for each annual guaranty period, the Agreement provides for the City to pay Ameresco a stipulated amount for maintenance, saving measurement and verification, and Post-Acceptance training services; and WHEREAS, on March 4, 2016, the City and Ameresco, Inc. approved Amendment No. 1 to the Agreement, with respect to the de-commissioning of a geothermal system for certain chiller plant services for the Miami Beach Convention Center and The Fillmore Miami Beach at the Jackie Gleason Theater; and WHEREAS, Section 10.10 of the Agreement provides the City with the right to terminate the Agreement for its convenience, "not later than thirty (30) days in advance of the end of the current Energy Savings Guaranty Period. The termination shall become effective on the last day of said guaranty period," with City remaining "responsible for payment for maintenance, monitoring and training services performed in accordance with the terms of this Agreement prior to the termination date; " and WHEREAS, in accordance with the Agreement's terms, the Administration recommends the termination for convenience of the Agreement, for the reasons specified in the Commission Memorandum accompanying this Resolution. NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission hereby approve the termination for convenience of the Energy Savings Agreement between the City of Miami Beach, Florida and Ameresco, Inc., dated May 25, 2010, with respect to energy conservation measures in buildings owned and operated by the City; and authorize the City Manager to exercise the City's right to termination for convenience, in accordance with Section 10.10 of the Agreement. PASSED AND ADOPTED this a day of SP p-f • 2018. an Gelber, ayor ATTEST:y t, bit Cl hy Raf el E. Granado, ity Clerk APPROVED AS TO rr7�=T�, FORM&LANGUAGE ;l�......,I. e� * &FOR EXECUTION u\ 7— � .�\ `� � QUI- � l _1 (i9 *r` .---:-.7-;: S ; INCORF � City Attorney Date ORA ED. * (�Y�� N 26 ` �.:7 Resolutions - R7 P MIAMI BEACH COMMISSION MEMORANDUM TO: Honorable Mayor and Members of the City Commission FROM: Jimmy L. Morales, City Manager DATE: September 12, 2018 SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA APPROVING THE TERMINATION FOR CONVENIENCE OF THE ENERGY SAVINGS AGREEMENT BETWEEN THE CITY OF MIAMI BEACH, FLORIDAAND AMERESCO, INC., DATED MAY 25, 2010, WITH RESPECT TO CERTAIN ENERGY CONSERVATION MEASURES IN BUILDINGS OWNED AND OPERATED BY THE CITY; AND AUTHORIZING THE CITY MANAGER TO EXERCISE THE CITY'S RIGHT TO TERMINATION FOR CONVENIENCE, IN ACCORDANCE WITH SECTION 10.10 OF THE AGREEMENT. RECOMMENDATION City Administration recommends adopting the resolution. ANALYSIS On May 12, 2010, the Mayor and City Commission adopted Resolution No. 2010-27397, approving an Energy Savings Agreement with Ameresco, Inc. ("Amieresco")for the purpose of providing energy conservation measures ("ECMs") consisting of systems, services and facilities designed to reduce energy consumption and costs in buildings owned and operated by the City. On May 25, 2010, following the conclusion of negotiations, the City and Ameresco executed an agreement (the "Agreement"). The six (6) ECMs to be implemented were identified and accepted by the Mayor and City Commission at their September 9, 2009 meeting and found be feasible by Ameresco are listed herein. (The ECM number is not intended to be sequential, but a reference to the number originally assigned in the Energy Audit produced by Ameresco): • ECM 1 — Facility Lighting and Lighting Controls Upgrade. This ECM generally provides most of the City's facilities with lighting energy efficient lights and lighting control upgrades. • ECM 3 — Domestic Water Conservation. This ECM provides throughout the various City facilities, water conserving fixtures such as toilets, sinks, shower heads, ice machines and laundry facilities where they east to reduce their water consumption. • ECM 5— HVAC Controls. (HVAC, Heating Ventilation &Air Conditioning) This ECM generally provides that all of the City's different facilities will be linked into one (1) energy management system and upgraded so that building monitoring and controls are more easily undertaken and energy conservation achieved as a result. Page 1314 of 1802 • ECM 6 — Geothermal District Cooling Plant. This ECM provides through three (3) different elements, the optimization of the chiller plant facility in the Convention Center, providing a geothermal source to enhance the efficiency of the cooling plant and also to expand the cooling system to incorporate the distribution of chilled water to City Hall, the new multi-purpose City garage and eventually the 777 Building. • ECM 7— Geothermal Cooling Police Station. This ECM provides a geothermal cooling source to increase the efficiency of the Police Department chilling mechanism, thereby reducing energy consumption. • ECM 10 — Power Transformer Replacement. This ECM provides for the replacement of most of the power transformers currently in use within City facilities to increase their energy efficiency. The City obtained a loan to finance the Ameresco improvements. The annual debt service in 2018 associated with the loan for the Ameresco improvements is $1.8 million, and the remaining loan balance is estimated at appropmately $10,000,000. The work has been fully installed, and has furthered the City's commitment to resiliency and its continual efforts to achieve energy efficiencies with respect to the City's operations, wherever possible. Following the acceptance and installation of ECMs, the Agreement provided for a thirteen (13) year Energy Savings Guaranty period, whereby Ameresco guaranteed certain specified levels of energy savings. For each annual guaranty period, the Agreement also provides for the City to pay Ameresco a stipulated amount for maintenance, saving measurement and verification, and Post-Acceptance training services. On March 4, 2016, the City and Ameresco approved Amendment No. 1 to the Agreement, with respect to de-commissioning a geothermal system for certain chiller plant services for the Miami Beach Convention Center and The Fillmore Miami Beach at the Jackie Gleason Theatre. The Amendment modified ECM-6 and the expense so the maintenance charges were reduced starting in year three (3)and deleting year thirteen's payment. Under the Agreement, unless terminated earlier in accordance with Section 10, the City is contractually obligated to remit payment for maintenance, monitoring and training services for an additional eight (8) years for the remaining term of the Agreement, which payments total an additional $799,836, assuming that the savings objectives were satisfied in accordance with the Agreement's terms. On September 28, 2017, the City conducted an internal audit to review the four (4) Annual Reconciliation Reports ("ARRs") subnitted by Ameresco Inc. to date under their signed Energy Service (ESC) Agreement to determine whether power and water savings when compared to the baseline are being realized. The review (attached hereto) was to determine whether funds spent in the ESC Agreement resulted in the City having lower power and water consumption for the tested locations and whether accurate ARRs were submitted reflecting the City's consumption trends. The four (4) ARRs filed by Ameresco estimated the power and water savings for City owned properties during each October through September fiscal year based on capital improvements costing $13,697,733.97 procured between July 2010 and September 2012. Under Section 3.4 of the Agreement, if the annual Energy Savings Guaranty is not met,Ameresco would be responsible to pay for the difference between the "annual amount guaranteed and the amount of actual annual energy and operating cost savings achieved at the Premises." Upon review and analysis various data sources, and based in part on difficulty in comparing Ameresco's verification protocol to FPL's and the City's reporting formats for actual consumption, Page 1315 of 1802 Internal Audit could not conclusively determine whether the power and water consumption savings actually exceeded the associated costs of the capital improvements ($13,697,733.97) plus the annual service and maintenance payments designated in the Agreement and Amendment No. 1 ($1,138,004 = $338,168 paid to date + $799,836 potentially owed during the next eight years). Accordingly, the auditors could not verify whether the annual Energy Savings Guaranty specified in the contract for each reporting period has been met, or whether City is owed any amounts under the Agreement, based on the framework established in the Agreement. Due to the concern with reconciliation of different reporting formats, and because the Administration is not convinced that ongoing maintenance, verification and training services are truly necessary to achieve the energy efficiency objectives accomplished by the City Commission in 2010, when the then-City Commission approved proceeding with the ECMs, the Administration recommends termination of the Agreement for convenience, as doing so would limit the City's remaining costs with respect to maintenance, verification and training services ($799,836 owed during the next eight (8) years). Section 10.10 of the Agreement provides the City with the right to terminate the Agreement for its convenience, "not later than thirty (30) days in advance of the end of the current Energy Savings Guaranty Period. The termination shall become effective on the last day of said guaranty period," with City remaining "responsible for payment for maintenance, monitoring and training services performed in accordance with the term of this Agreement prior to the termination date." If the City Commission terminates the Agreement for its convenience and the Adrrinistration promptly provides notice thereof, the termination will be effective on September 30, 2018.As provided in the Agreement, the City would be obligated to pay $92,645 corresponding to maintenance of year five (5), for services performed through the date of termination. Given these facts, it is in the City's best interest to exercise the termination for convenience pursuant to Section 10.10 of the Agreement. Through termination of the Agreement the City will save $707,191 over the course of the next seven (7) years beginning October 1, 2019. The cost savings from the contract's annual maintenance can be used to fund a future Energy Analyst position. The Energy Analyst would be responsible for properly benchmarking and verifying the City's energy consumption and will provide recommendations and manage energy efficiency retrofits and savings. CONCLUSION Based upon the foregoing, the City Manager recommends that the Mayor and City Commission authorize the City Manager to exercise the City's right to termination for convenience, in accordance with Section 10.10 of the Agreement, as being in the best interest of the City, and further recommends that in FY2019/20, the Mayor and City Comrrission utilize the cost savings from the Agreement termination to fund an Energy Analyst position. Legislative Tracking Property Management/Environment and Sustainability ATTACHMENTS: Description o Reso Page 1316 of 1802 o An endement No. 1 to the Agreement ❑ Agreement ❑ ARR Page 1317 of 1802 aolo- a73 91 AMENDMENT NO. 1 TO THE ENERGY SERVICES AGREEMENT BETWEEN THE CITY OF MIAMI BEACH, FLORIDA AND AMERESCO, INC. DATED AS OF MAY 25, 2010 Th.i$ Amendment No. 1 to the Energy Services Agreement ("Agreement") made and entered this T day of r14rc%r2016, by and between the CITY OF MIAMI -BEACH, a municipal corporation existing under the laws of the State of Florida ("City), having its principal offices at 1700 Convention Center Drive, Miami Beach, Florida 33139, and Ameresco, Inc., having its principal offices at 111 Speen Street, Suite 410, Framingham, Massachusetts 01710 ("Company"). RECITALS WHEREAS, pursuant to City Commission Resolution No. 2010-27397, City and Company entered into the Agreement for the purpose of providing energy conservation measures("ECMs") consisting of systems, services and facilities designed to reduce energy consumption and costs in buildings owned and operated by the City; and WHEREAS, pursuant to GCM 6, the Agreement provided for the Company to install a geothermal system to achieve energy efficiencies in connection with the chiller plant services for the Miami Beach Convention Center and The Fillmore Miami Beach at the Jackie Gleason Theater(the "Geothermal System") (the Geothermal System being a portion of-ECM 6 referred to as ECM 6a in the Agreement); and WHEREAS, the Company installed the Geothermal System in the locations described in Exhibit"A" attached hereto, pursuant to-Florida Department of Environmental Protection ("MEP") General Permit No. 0128936-038-WFUC ("MEP-General Permit"), a copy of which is attached hereto as Exhibit"B"; and WHEREAS, the City is proceeding with the Miami Beach Convention Center Renovation and Expansion Project (the "MBCC Renovation Project), a construction project that includes a complete renovation of the MBCC, expansion of ballroom and auxiliary spaces, parking above portions of the MBCC, exterior landscaping, and creation of a 6.5 acre public park; and • WHEREAS, subject to approval by the voters pursuant to a City-wide referendum, the City may enter into a Development and Ground Lease Agreement with respect to the development of a convention headquarter hotel adjacent to the Miami Beach Convention Center ("Hotel Project"); and WHEREAS, both the MBCC Renovation Project and the Hotel Project improvements will take place in the vicinity where the Geothermal System is located, and may require the relocation of the Geothermal System; and WHEREAS, as the-City has determined that the costs to relocate the Geothermal System significantly exceed the potential benefits derived therefrom, the Company has agreed, at the City's request, to decommission the Geothermal System in lieu of its relocation. NOW, THEREFORE, the parties hereto, and in consideration of the mutual promises, covenants, agreements, terms, and conditions herein-contained, and other good and valuable consideration, the respect and adequacy are hereby acknowledged, do agree as follows: 1. ABOVE RECITALS Page 1320 of 1802 The above recitals are true and correct and are incorporated as a part of this Amendment No. 1. 2. MODIFICATION TO ECM 6 a. Within six (6) months following the execution of this Amendment 1, Company shall decommission the Geothermal System at its sole cost and expense. The decommissioning will, at a minimum, include removal of all heat exchangers, controls, pump and associated electrical. All underground piping between the Miami Beach Convention Center inline pumps and to the "P-Lot" wells (located west of Convention Center Drive) is to be filled with grout and abandoned in place. All piping in chiller room and at loading dock is to be removed. Condenser water pipe where point of connection exists within MBCC chiller room is to be patched. The points where the piping penetrates the building and concrete floor of the chiller room is to be filled in and patched to match surroundings. Geothermal wells are to be filled in and capped as required by any agency having jurisdiction. b. Company shall submit its decommissioning plan for approval by the City's Public Works Department, which approval shall not be unreasonably withheld, conditioned or delayed, and shall be solely responsiblelor obtaining all permits that may be required, including but not limited to a Plugging and Abandonment Permit in accordance with Specific Condition 7 of the FDEP"General Permit. c. Notwithstanding the decommissioning of the Geothermal System, the total aggregate Annual Energy Cost Savings and/or Energy Savings Guarantee, as set forth in the Agreement (including Schedule B thereto), shall remain unchanged and in full force and effect, with no adjustment required therefor. d. The parties acknowledge and agree that the decommissioning of the Geothermal System will result in a change to Company's maintenance obligations under Schedule G to the Agreement. Accordingly, Schedule G to the Agreement is hereby deleted in its entirety, and the updated Schedule G attached hereto as Exhibit "C" is hereby inserted in its place. e. The parties acknowledge and agree that the changes to Schedule G of the Agreement reflected in the updated Schedule G attached hereto as Exhibit "C" will result in changes to the table entitled "Service and Maintenance Costs" set forth in Schedule C to the Agreement. Accordingly, such table entitled "Service and Maintenance Costs" is hereby deleted in its entirety from Schedule C to the Agreement, and the updated table attached hereto as Exhibit"D" is hereby inserted in its place. 3. OTHER PROVISIONS. All other provisions of the Agreement, as amended, are unchanged and in full force and effect. Page 1321 of 1802 IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to be executed in their names by their duly authorized officials as of the date first set forth above. ATTEST: CITY i"F MIAMI BE ., H I �n Sae Raf.'•l eletso $1 6e.". Jimmy ll Morale. City Clerk NP.-'" .'9o0. ity Ma :ger . ;..1—.n/ V5:‘ ' *t INCORPORATED; ATTEST: 9/1i' 1,--...--.�0i OMPANY: h''.................. AMERESCO, INC. 9ia aht J�e Dr__ gnature Sig re 0-0111AW,eli I- Alo 644 Qemil JGt *WM(-Sir Print Name/Title Print Naa e/Title APPROVED AS TO FORM&LANGUAGE /F0- EXECUTION EP, .A-a3 - fe OWEpp Cite Page 1322 of 1802 Exhibit"A" Location of Geothermal System Page 1323 of 1802 V p ® i r! i 1 1Pi '011 pg7 0 ,t Illi q , e Q anal It k14. 'F- �I ! X 6 I i 4g3 0 Ir'b'1 '1f I S 'ii ��1 k§ :811• ie. j �y F- 9 w r� •, - 1 $ , 0 . F- it a , , , .l lit , iii!klffi I I 1111 i 1i , '1" 11 IP 11C ti!1 !! 1 1 y? IEIe ''l ii 1 i zi E II! i ii 41 I. Ir! Ili 1li�i 1111 E! !!i is! 6 E� 1 ii f , • ! 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Vinyard Jr. 561-681-6600 Secretary ELECTRONIC CORRESPONDENCE 7 April 2011 PERMITTEE: WAGS I.D. NUMBER: SED13M000 City of Miami Beach County: Miami-Dade Attn: Mr, Duane Knecht, PE Project:Air Conditioning Return Flow Well Director, Property Management Division Permit Number: 0128936-038-WFUC 1245 Michigan Avenue Dale of Issue: 7 April 2011 Miami Beach, FL 33139 Expiration Date: 6 April 2016 duaneknechtCa)m iamibeach8.gov RE: General Permit Notice-File No.0128936-038-WFUC Miami Beach Convention Center Dear Mr.Knecht: On February 10,2011 the Department received your plan to use a closed loop air conditioning retum flow well system with no provision for additives in accordance with Rule 62-528.705, Florida Administrative Code(F A.C.). The plan shows the construction and operation of five(5)Class V,Group 1 wells and supplemented by correspondence received 02/08/2011; 03/04/2011;and 03/09/2011 and drawings received on 03/22/2011. FACILITY ADDRESS: 1901 Convention Center Drive, Miami Beach, Florida 33139. GEOGRAPHIC LOCATION OF WELL(S):The geographic locations of the wells are as below: Well Number Latitude/Longitude Well Number Latitude/Longitude D-1 25°47'36.31"N/80°08'09.04"W 0-4 25°47'36.55"N/80°08'06.18"W D-2 25°4T 36.31"N/80°O6'07.64"W D-5 25°47'37.31"N/80°06'06.23"W D-3 25°4T 36.36"N/80°08'06.83"W After reviewing the notice,it appears that your project will have a minimal adverse environmental effect and apparently can be constructed and operated pursuant to a general permit as described in Rule 62-528.705, F A.C. Any activities performed under this General Permit are subject to General Conditions in Rule 62-4.540, F A.C.(See page • 2-3).and Specific Conditions per Rule 62-528.705, F.A.C. (See page 3). This permit will expire five years from the date of issue. If you wish to renew this General Permit,you must notify the Department thirty(30)days before its expiration date. Your construction and operation activity must conform to the description contained in your notice. Any deviation will subject you to enforcement action and possible penalties. Sincerely, Joseph R. May, P.G. Program Manager Underground Injection Control JRM/PSW cc: Cathy McCarty FDEPTILH Gardner Strasser.FDEPANPB Steve Anderson,SFWMD-sandersoesfwmd aov Bradley G.Wailer,President,Hydrologic Associates USA,Inc.-bwellerehalmiami.com Anthony Lubrano,Hard Rock Drilling,Inc.8 Hydrologic Associates-anthonvlubranol®bellsouth.net Robed J.Behar.PE.R.J.Behar B Company,Inc.-bbehareribehar.com Page 1328 of 1802 City of Miami Beach County Miami-Dade Attn.:Mr.Duane Knecht,PE Project:Air Conditioning Return Flow Well Director,Property Management Division Permit Number:0128936-038-WFUC Paget of GENERAL CONDITIONS: The following General Conditions are referenced in Rule 62-4.540 of Florida Administrative Code (F.A.C.)for All General Permits: (1) The terms, conditions, requirements, limitations, and restrictions set forth in this Part are"general permit conditions"and are binding upon the permittee. The conditions are enforceable under Chapter 403, F.S. (2) The general permit is valid only for the specific activity indicated. Any deviation from the specified activity and the conditions for undertaking that activity shall constitute a violation of the permit. The permittee is placed on notice that violation of the permit may result in suspension or revocation of the permittee's use of the general permit and may cause the Department to begin legal proceedings. (3) The general permit does not convey any vested rights or any exclusive privileges. It does not authorize any injury to public or private property nor any invasion of personal rights. It does not authorize any infringement of federal, state or local laws or regulations. It does not eliminate the necessity for obtaining any other • federal, state or local permits that may be required, or allow the permittee to violate any more stringent standards established by federal or local law. (4) The general permit does not relieve the permittee from liability and penalties when the construction or operation of the permitted activity causes harm or injury to human health or welfare; causes harm or injury to animal, plant or aquatic life; or causes harm or injury to property. It does not allow the permittee to cause pollution in contravention of Florida Statutes and Department rules. (5) The general permit conveys no title to land or water, nor does it constitute State recognition or acknowledgment of title. It does not constitute authority for reclamation of submerged lands. Only the Board of Trustees of the Internal Improvement Trust Fund may express State opinion as to title. (6) No general permit shall authorize the use of state owned land without the prior consent of the Board of Trustees of the Internal Improvement Trust Fund pursuant to Section 253.77, F.S. (7) The general permit may be modified, suspended or revoked in accordance with Chapter 120, Florida Statutes, if the Secretary determines that there has been a violation of any of the terms or conditions of the permit,there has been a violation of state water quality standards or state air quality standards, or the permittee has submitted false, incomplete or inaccurate data or information. (8) The general permit shall not be transferred to a third party except pursuant to Fla.Admin. Code Rule 62-4.120. • (9) The general permit authorizes construction and where applicable operation of the permitted facility. (10) The permittee agrees in using the general permit to make every reasonable effort to conduct the specific activity or construction authorized by the general permit in a manner that will minimize any adverse effects on adjacent property or on public use of the adjacent property, where applicable,and on the environment, including fish,wildlife, natural resources of the area, water quality or air quality. (11) The permittee agrees in using the general permit to allow a duly authorized representative of the Department access to the permitted facility or activity at reasonable times to inspect and test upon presentation of credentials or other documents as may be required by law to determine compliance with the permit and the Department rules. (12) The permittee agrees to maintain any permitted facility, or activity in good condition and in accordance with the plans submitted to the department under Rule 62-4.530(1). (13) A permittee's use of a general permit is limited to five years. However,the permittee may request continued use of the general permit by notifying the Department pursuant to Rule 62-4.530(1). However, the permittee shall give notice of continued use of a general permit thirty days before it expires. Page 1329 of 1802 City of Miami Beach County:Miami-Dade Attn.:Mr.Duane Knecht,PE Project:Air Conditioning Return Flow Well Director.Property Management Division Permit Number:0128936-038-WFUC Page 3 of 3 SPECIFIC CONDITIONS: 1. The well(s) shall be constructed by the Florida licensed water well contractor Hard Rock Drilling, Inc.& Hydrologic Associates,Anthony Lubrano, State of Florida License No. 2928. The construction of the return flow well shall be such that its casing is constructed to the same depth as the casing of the supply well thus injecting back into the same permeable zone from which the supply well withdraws water, thereby constituting a closed loop system. The wells are classified under Rule 62-528.300(1)(e)1.a., F.A.C., as Class V, Group 1 wells. 2. The water well contractor shall submit within fifteen(15)days after completion of each well,the following documents to the FDEP, Southeast District, UIC Section, 400 N. Congress Avenue, Suite 200,West Palm Beach, Florida 33401: a) A Certification of Class V Well Construction Completion DEP Form No. 62-528.900(4), F.A.C.for each Return Flow Well. b) A Well Completion Report SFWMD Form No. 0124 or DER Form 17-1.213(2)for each Return Flow Well. • c) A copy of the above documents at 2.a,2.b,2,c, &2.d above shall also be sent to the Department of Environmental Protection, Underground Injection Control Program, MS 3530, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400. 3. If the owner wishes to utilize the services of another water well contractor instead of the contractor Hard Rock Drilling, Inc.& Hydrologic Associates,Anthony Lubrano, State of Florida License No. 2928,the new water well contractor must submit completed application DEP Form 62-528.900(9), F.A.C. The application for change of water well contractor must be submitted to the FDEP in the following cases: (a) Completed DEP Form 62-528.900(9), F.A.C. shall be submitted prior to spudding in cases where spudding has not commenced. (b) In all other cases where spudding had commenced but the owner decides to utilize the services of another water well contractor, the required information (DEP Form 62-528.900(9), F.A.C.) shall be submitted within three(3) business days of the hiring of the subsequent water well contractor. 4. This General Permit is limited to closed loop systems as defined in Rule 62-528.300(1)(e)1.a., F.A.C.,with no provision for additives. 5. Rules 62-528.630(3)through(6), F.A.C. shall apply to Class V return flow wells operating under a general permit 6. A periodic inspection of the system on a regular basis shall be made to determine its condition. The Department must be notified of any repair that requires the replacement or alteration of any part of the closed loop return flow system. 7. In accordance with Rule 62-528.645(1), F.A.C.,the owner of the Class V well shall apply for a Plugging and Abandonment Permit, DEP Form 62-528.900(6),when the well is no longer usable for its intended purpose. The application shall include the justification for abandonment and the proposed plugging plan. Page 1330 of 1802 Exhibit"C" Updated Schedule G—Company Maintenance Responsibilities ECM # 5 HVAC Controls The Contractor shall provide HVAC Controls maintenance services as described below. The Contractor, or its representative, will make site visits as scheduled below. Repair of failed equipment is not included in the Contractor's maintenance responsibilities. The Contractor will provide a quote to repair the failed equipment at the Department's request. All maintenance activities will be scheduled with the Department by the Contractor. There are no emergency service calls included in the scope of work for maintenance activities. Services Contractor will provide: 1. Professional and skilled labor to inspect and service the subject equipment. FACILITY EQUIPMENT QTY HVAC Building at Flamingo Park Johnson Controls Facility Explorer with Niagara Software Framework 1 Dell Server Grade Workstation 1 LCD Monitor 1 UPS 1 City Hall Aluminum Low Leak Gamper 36"x 36"w/Elect Actuator 1 CO2 Sensor 0-2000 PPM Accur.4-50 PPM 7 VFD 10 HP w/Control Card and Auto Reset 1 VAV Box Controller Cooling Only w/Room Temp Sensor 30 VAV Box Controller Cooling-Heating w/Room Temp Sensor 55 Duct Static Pressure Sensor 0-3 in Wg JCI Facility Explorer FX-60 Supervisory Controller 1 Bass Museum JCI Facility Explorer FX-60 Supervisory Controller 1 KMD-5210 BacNet Interface 1 Fire Station#1 JO Facility Explorer FX-60 Supervisory Controller 1 TEC Series Communicating Thermostats 2 Fire Station#2 JCI Facility Explorer FX-60 Supervisory Controller 1 TEC Series Communicating Thermostats 7 Fire Station#3 JCI FacilityExplorer FX-60 Supervisory Controller 1 TEC Series Communicating Thermostats 6 Fire Station#4 JCI Facility Explorer FX-60 Supervisory Controller 1 TEC Series Communicating Thermostats 2 North Shore Community-Center JCI Facility Explorer FX-60 Supervisory Controller 1 Aluminum Low Leak Damper 18"x 24"w/Elect Actuator 1 CO2 Sensor 0-2000 PPM Accur.4.50 PPM 2 Old City Hall JCI Facility Explorer FX-60 Supervisory Controller 10 Police Athletic League . JCI FacilityExplorer FX-60 Supervisory Controller 1 TEC Series Communicaknq Thermostats 5 Police Station . JCI Facility Explorer FX-60 Supervisory Controller 1 Outside Air Temp Sensor 1 CO2 Sensor 0-2000 PPM Accur.4-50 PPM Aluminum Low Leak Damper 10"x 10"w/Elect Actuator 1 Aluminum Low Leak Damper 20"x 20"w/Elect Actuator 1 Page 1331 of 1802 Aluminum Low Leak Damper 12'x 12"w/Elect Actuator I 1 Aluminum Low Leak Damper 18'x 18"w/Elect Actuator 1 Aluminum Low Leak Damper 40'x 20'w/Elect Actuator 1 Aluminum Low Leak Damper 42'x 22'w/Elect Actuator 1 Aluminum Low Leak Damper 40'x 40"w/Elect Actuator 2 Aluminum Low Leak Damper 48'x 18"w/Elect Actuator 2 Aluminum Manual Damper 10"x 10" 1 Aluminum Manual Damper 12'x 12" 1 Aluminum Manual Damper 20'x 20' 1 Scott Rakow Youth Center Aluminum Low Leak Damper 34"x 40'w/Elect Actuator 1 Galvanized Access Panel 10'x 14"for AHU-2 1 CO2 Sensor0-2000 PPM Accur.+-50 PPM 3 Gym's AHU-2 15 HP VFD w/Control Card and Auto Reset 1 JCI Fadlity Explorer FX-60 Supervisory Controller 1 South Shore Community Center JCI Fadlity Explorer FX-60 Supervisory Controller 1 Aluminum Low Leak Damper 18"x 24'w/Elect Actuator 1 CO2 Sensor 0-2000 PPM Accur.+-50 PPM 2 555 Office Building JCI Facility Explorer FX-60 Supervisory Controller 1 TEC Series Communicating Thermostats 2 777 Office Building JCI Facility Explorer FX-60 Supervisory Controller 1 2. Inspection of the control equipment (4) four times a year or once a quarter during our normal working hours of Monday through Friday 8:00 am to 4:30 pm. Inspections are available after normal working hours, weekends, or holidays at an additional cost to be determined at the time of the request. 3. Emergency services as needed for repairs between regular inspections 24 hours a day 7 days a week including holidays. Ameresco will provide a four (4) hours response time. Service will be charged at a rate of$92.40 per hour per technician Monday through Friday 8:00 A.M. to 4:30 P.M., not including holidays. Emergency services provided from 4:30 P.M. Friday through 8:00 A.M. Mondays, or anytime on a holiday, it will be charged at a rate of$138.60 per hour per technician. Annual escalation rate for services will be 4%. 4. Instruct the Customer in the operation of the equipment to provide for best efficiency and lowest operating costs. 5. Furnish Customer with a completed copy of the Technician's Report indicating what repairs, if any are necessary resulting from each inspection. The following work will be performed during each inspection: CHILLER PLANT CONTROL WORKING FUNCTION(AS APPLICABLE) • Verify communications from the supervisory controller to the field controller • Verification of pump start-stop control and pump status reporting • Verification of cooling tower fan start-stop control and cooling tower fan status reporting • Verification of chiller start-stop control and chiller status reporting • Verification of rotation sequence for the chillers,pumps, and cooling towers as dictated by the rotation schedules • Performance verification of the control algorithms as applicable i.e. chilled water pressure, condenser water temperature Page 1332 of 1802 • Verification and calibration of temperature and pressure sensors as applicable • Inspect and clean enclosure Services described below to the air conditioning delivering equipment for the systems in the following table: FACILITY EQUIPMENT OTV City Hall Chilled Water Constant Volume AHU's 1.2.3.7,8,10 and 12 Chilled Water Variable Volume AHU's 5,9 and 11 3 Second Floor VAV Boxes 2-1 to 2-15 15 Bass Museum Carrier Digital Control System Software Not Connected to EMS Water Cooled Heat Pumps 1 through ID 10 DX Rooftop Units 1 through 3 3 Fire Station#1 DX Units 1 and 2 with Local Thermostats 2 Fire Station#2 DX Units 1 through 7 with Local Thermostats 7 Fire Station#3 DX Units 1 through 6 with Local Thermostats 6 Fire Station#4 DX Units 1 and 2 with Local Thermostats 2 North Shore Community Center Rooftop DX Units 1 and 2 2 DX Air Cooled AHU's 1 and 2 2 Chilled Water Air Handling Units 1 through 10 with Pneumatic Old City Hall Controls 10 Police Athletic League DX Units 1 through 5 with Local Thermostats 5 Police Station - Chilled Water Variable Volume AHU's 1,3.4,5,6,7 and 10 7 Chilled Water Constant Volume AHU's 2, 12, 13. 13A and 15 5 Scott Rakow Youth Center Chilled Water Constant Volume AHU's 1,2 and 3 3 DX Water Cooled AHU-4 1 South Shore Community Center Chilled Water Constant Volume AHU's 1 through 10 10 Chilled Water Constant Volume Fan Coil Units 1 through 4 4 Split Air Cooled Chiller CH-1 1 555 Office Building DX Units 1 and 2 with Local Thermostats 2 Chilled Water Variable Volume A1-1U3-1 Trane Tracer Controls 777 Office Building System 1 AIR HANDLING UNIT CONTROL WORKING FUNCTION(AS APPLICABLE) • Verify communications from the supervisory controller to the field controller • Verification of fan start-stop control and fan status reporting • Performance verification of the control algorithms as applicable i.e. cooling, heating, static pressure • Verification and calibration of temperature and pressure sensors • Inspect and clean enclosure FAN COIL UNIT CONTROL WORKING FUNCTION(AS APPLICABLE) • Verify communications from the supervisory controller to the`field controller • Verification of fan start-stop control and fan status reporting • Performance verification of the control algorithms as applicable i.e. cooling, heating • Verification and calibration of temperature sensors • Inspect and clean enclosure Page 1333 of 1802 VARIABLE FREQUENCY DRIVE WORKING FUNCTION(AS APPLICABLE) • Verify communications from the supervisory controller to the variable frequency drive as applicable • Verify the variable frequency drive progranuned settings per manufacturer specifications • Inspect and clean variable frequency drive cabinet ELECTRONIC VAV CONTROL WORKING FUNCTION(AS APPLICABLE) • Verify communications from the supervisory controller to the field controller • Performance verification of the control algorithms as applicable i.e. cooling, heating, air flow • Verification and calibration of temperature and pressure sensors as applicable • Verification of zone thermostat communication bus as applicable EXHAUST FAN CONTROL WORKING FUNCTION(AS APPLICABLE) • Verify communications from the supervisory controller to the field controller • Verification of fan start-stop control and fan status reporting LIGHTING CONTROL WORKING FUNCTION(AS APPLICABLE) • Verify communications from the supervisory controller to the field controller • Verification of lighting schedule as required by the owner • Verification of lighting relay operations • Inspect and clean enclosure SUPERVISORY CONTROLLER WORKING FUNCTION(AS APPLICABLE) • Verify communications from the supervisory controller to the field controllers • Test battery backup for the N30 Supervisory Controller • Inspect and clean enclosure OPERATOR WORKSTATION WORKING FUNCTION • Verify communications from the supervisory controller to the workstation • Upload database to the archive workstation from the supervisory controllers and perform a database back-up of the building management system • Test remote dialup if applicable • Test auto-paging on an alarm if applicable • Perform file housekeeping on the workstation hard drive Page 1334 of 1802 • Review workstation building management graphical displays • Review the building management database • Inspect and clean the interior components of the workstation, clean the workstation fan, keyboard, and printer once during the quarterly inspection period THIS AGREEMENT DOES NOT INCLUDE: Services not listed above, valves, dampers, fan motors, variable frequency drives, upgrades of hardware devices, upgrades of software, pre-existing control problems or any pre-existing design problems, and Life Safety control equipment, sequence of operations programming changes, and any work that is completed by any contracting companies other than Contractor that is covered by warranty by that contractor. If services are required, billing will be done at the agreed contracted price as fisted for services not covered. All other services not covered or listed above will be performed at the following rates: LABOR: Normal working hours (8:00 am to 4:30 pm) Monday thru Friday .... $92.00 per technician hour After hours, weekends, and holidays $ 138.00 per technician hour All rates will be subject to annual escalation of 4%. MATERIAL: All materials not listed in this service agreement will be billed at standard industry rates. REPAIR MATERIAL CONTRACTOR WILL NOT PROVIDE: • Field Controllers — All Johnson Controls electronic direct digital control devices to include all UNT, VAV, VMA, AHU, TEC 1100 or equivalent, TC-9102, DX-9100 and expansion modules. • Supervisory Controllers—Johnson Controls FX-40 Supervisory Controller. • Sensors — All resistive temperature sensors, i.e. zone, duct, pipe, and loose mounted, any current, or voltage source field devices, i.e. air flow monitoring stations, liquid flow meters, power consumption monitoring devices associated with the BMS control system. • Actuators — All electronic and pneumatic actuators whether for valve applications or damper applications. • Variable Frequency Drives—Any replacement, repair, or upgrade. • Pneumatic Controllers — Any pneumatic control device, receiver, compressor(s), or any device associated with a pneumatic control system including pneumatic VAV control devices. • Lighting Controllers—Any lighting relay or circuit beyond the BMS control interface relay. • Network Devices — All campus wide communication networking devices, i.e. Mod Hubs, Mod Hub Expansion cards, Ethernet interfaces, Ethernet Hubs, Ethernet Servers, Fiber Optic interfaces, Fiber Optic Hubs or any associated device required for an integrated communication network. Page 1335 of 1802 • Operator Workstation - Replacement, repair, or upgrade of the workstation and any device associated with the portable or sedentary operator workstation. • Software-Upgrades and any additional software if required • Integrators-Johnson Controls Integrator devices ECM#6 Geothermal District Cooling Plant and Plant Optimization The Contractor shall provide service for the TekWorx Chiller Plant Optimization system.-and - -.-' -- '- -- - - - - - : -; -: :- • . The Contractor, or its representative, will make site visits as scheduled below. Repair of failed equipment is not included in the Contractor's maintenance responsibilities. The Contractor will provide a quote to repair the failed equipment at the Department's request. All maintenance activities will be scheduled with the Department by the Contractor. There are no emergency service calls included in the scope of work for maintenance activities. Services Contractor will provide: 1. Professional and skilled labor to inspect and service the subject equipment. FACILITY EQUIPMENT QTY Convention Center TekWorx Chiller Plant Optimization Panel and Software .: . ... -,... - .. 2 ..:. ... . .. ...: .. .. .:- .. 2 ... .:.... .:: .. .. . . , ,. ;.,'., -'.. :. 2 2 NaeFiltec2�Aip,pipe 2 Chilled Water Line Isolation Butterfly Valve a•City Hall 1 :: -...., 4 Chilled Water Line Isolation Butterfly Valve 6"Mun.Parking Garage 1 4 :,, __ . - .r _- _. . •:.. .-.: .: ..-',. 2 2 2. Inspection of the control equipment once a year during our normal working hours of Monday through Friday 8:00 am to 4:30 pm. Inspections are availableafter normal working hours, weekends, or holidays at an additional cost to be determined at the time of the request. 3. Emergency services as needed for repairs between regular inspections 24 hours a day 7 days a week including holidays. Ameresco will provide a four (4) hours response time. Service will be charged at a rate of$92.00 per hour per technician Monday through Friday 8:00 A.M. to 4:30 P.M., not including holidays. Emergency services provided from 4:30 Page 1336 of 1802 P.M. Friday through 8:00 A.M. Mondays, or anytime on a holiday, it will be charged at a rate of$138..00 per hour per technician. Rates will be subject to annual escalation of 4%. 4. Instruct the Customer in the operation of the equipment to provide for best efficiency and lowest operating costs. 5. Furnish Customer with a completed copy of the Technician's Report indicating what repairs, if any are necessary resulting from each inspection. The following work will be performed during each inspection: • Remotely access the TekWorx Chiller Plant Optimization Panel • Review lead-lag sequencing algorithm of chillers, pumps, and cooling towers • Review Operating Modes o Cool Day Operation o Warm Day Operation • Review chilled water pump speeds and building differential pressure set-points • Review cooling tower fan start-stop control and cooling tower fan status reporting • Review alarms, audit log and system trends • Filters Changed(filters not included) • Oil or gr aso all neeee.,ary component • Inspect all pulleys and belt THIS AGREEMENT DOES NOT INCLUDE: Services not listed above, valves, dampers, fan motors, variable frequency drives, upgrades of hardware devices, upgrades of software, pre-existing control problems or any pre-existing design problems, and Life Safety control equipment, sequence of operations programming changes, any work that is completed by any contracting companies other than Contractor that is covered by warranty by that contractor. If services are required, billing will be done at the agreed contracted price as listed for services not covered. All other services not covered or listed above will be performed at the following rates: LABOR: Normal working hours (8:00 am to 4:30 pm) Monday thru Friday $92.00 per technician hour After hours,weekends, and holidays $ 138.00 per technician hour All rates will be subject to annual escalation of 4%. MATERIAL: This contract only includes labor, not material, Any material required will be quoted and approved by an approved customer representative prior to installation. Page 1337 of 1802 • • Closo'all Iso ation va ves • Opemise4ation valves and bleed all air from heat exchanger. ECM# 7 Geothermal Police Station The Contractor shall provide HVAC Controls maintenance services as described below. The • Contractor, or its representative, will make site visits as scheduled below. Repair of failed equipment is not included in the Contractor's maintenance responsibilities. The Contractor will provide a quote to repair the failed equipment at the Department's request. All maintenance activities will be scheduled with the Department by the Contractor. There are no emergency service calls included in the scope of work for maintenance activities. Services Contractor will provide: 1. Professional and skilled labor to inspect and service the subject equipment. FACILITY EQUIPMENT OW Police Station Centrifugal 360 GPM Well Water Pump(Pending Final Design) 2 Titanium Plate Heat Exchanger 360 GPM(g 2 Deg F Della Temp 2 Geothermal Loop 25 HP VFD w/Auto Reset(Pending Final Design) 2 Line Filter 8"dim pipe 2 Geothermal Loop FIX Temp Sensor 0-100 Deg F(Pending Final Design) 8 Geothermal Loop HX Diff.Pressure Transmitter(Pending Final Design) 2 220 Tons Ceruifugal Water Cooled Chillers 2 Chilled Water Air Handling Units 18 Water pumps 9 Air Cooled Chiller Approx.125 Tons 1 Page 1338 of 1802 2. Inspection of the control equipment (4) four times a year or once a quarter during our normal working hours of Monday through Friday 8:00 am to 4:30 pm. Inspections are available after normal working hours, weekends, or holidays at an additional cost to be determined at the time of the request.. 3. Emergency services as needed for repairs between regular inspections 24 hours a day 7 days a week including holidays. Response time of 4 hours, after approval of customer's authorized representative. 4. Instruct the Customer in the operation of the equipment to provide for best efficiency and lowest operating costs. 5. Furnish Customer with a completed copy of the Technician's Report indicating what repairs, if any are necessary resulting from each inspection. The following work will be performed during each annual inspection: • Filters Changed(filters not included) • Inspect electrical components • Condensate drains cleaned • Oil or grease all necessary components • Check condenser and evaporator pressures and temperatures • Check condition of condenser and evaporator coils • Check amperage drawn on all electrical motors and compressors. Check voltages • Inspect all pulleys and belts • Check thermostat control sequences • Check flows and all delta T's. • Clean up work area. • Check any other items not listed above that could cause damage to equipment or cause inefficient operation • The following work will be performed as needed, based on the approach temperatures: Close all heat exchanger isolation valves. • Drain water from both sides of the heat exchanger. • Open heat exchanger to expose all plates, • Apply cleaning chemicals and brush clean all surfaces. • Close up heat exchanger to proper torques and measurements. • Open isolation valves and bleed all air from heat exchanger. • Check flows and all delta T's. • Clean up work area. • Check any other items not listed above that could cause damage to equipment or cause inefficient operation THIS AGREEMENT DOES NOT INCLUDE: Services not listed above, valves, dampers, fan motors, variable frequency drives, upgrades of hardware devices, upgrades of software, pre-existing control problems or any pre-existing design problems, and Life Safety control equipment, sequence of operations programming changes, any work that is completed by any contracting companies other than Contractor that is covered by warranty by that contractor. If services are required, billing will be done at the agreed contracted price as listed for services not covered. All other services not covered or listed above will be performed at the following rates: Page 1339 of 1802 LABOR: Normal working hours(8:00 am to 4:30 pm) Monday thru Friday .... $92.00 per technician hour After hours, weekends, and holidays $ 138.00 per technician hour All rates will be subject to annual escalation of 4%. MATERIAL: This contract only includes labor,not material. Any material required will be quoted and approved by an approved customer representative prior to installation. Page 1340 of 1802 Exhibit"D" Updated Service and Maintenance Costs Service and Maintenance Costs: Measurement&Verification Maintenance Total Year 3%Escalation 3%Escalation 1 $41,514 $40,257 $81,770 2 $42,759 $41,464 $84,223 3 $44,042 $40,741 $84,783 4 $45,363 $41,963 $87,327 5 $46,724 $43,222 $89,947 6 $48,126 $44,519 $92,645 7 $49,570 $45,854 $95,424 8 $51,057 $47,230 $98,287 9 $52,589 $48,647 $101,236 10 $54,166 $50,106 $104,273 11 $55,791 $51,609 $107,401 12 $57,465 $53,158 $110,623 Page 1341 of 1802 g7c ,x0/0-273g7 5 izi, ENERGY SERVICES AGREEMENT (ESA) This Energy Services Agreement, referred to herein as"Agreement"or"ESA",dated as of May 25 2010, by and between the City of Miami Beach, a Florida municipal corporation with primary offices located at 1700 Convention Center Drive, Miami Beach, FL 33139, referred to herein as the "CITY" and Ameresco, Inc., a Delaware corporation with offices located at 111 Speen Street, Suite 410, Framingham, Massachusetts 01701 referred to hereafter as the "COMPANY" for the purpose of providing energy conservation measures (ECMs), consisting of services, systems and facilities designed to reduce energy consumption and costs in buildings owned and operated by the CITY which are referred to herein as the"Premises." The CITY and the COMPANY are also referred to herein as the"Party"or"Parties"as appropriate. Recitals WHEREAS, the COMPANY was selected by the CITY as a qualified provider to provide professional services which will result in decreased energy consumption and costs, and which services may include but are not limited to the following: energy use analyses, the design and delivery of ECMs which consist of systems and devices to be installed and maintained on the Premises, guaranteed energy savings, the training of designated CITY employees, and the maintenance and monitoring of the ECMs as provided herein and measurement, verification and reporting of energy savings;and WHEREAS, under separate agreement with the CITY, the COMPANY has performed a comprehensive Energy Audit and has prepared a Detailed Energy Audit Report (the "Energy Audit Report"), which has been approved and accepted by the CITY as evidenced by the Energy Audit Report and CITY's Acceptance Certification as set forth in Exhibit 11(i); and WHEREAS, the COMPANY has agreed to guarantee a level of energy savings to be achieved as the result of the professional services to be provided under this Agreement;and NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, and intending to be legally bound hereby, the CITY and the COMPANY hereby covenant and agree as follows: Article 1: The Company's Rights and Responsibilities 1.1 Independent Company Status The COMPANY is an independent Company and in providing its services under this Agreement, shall not represent to any third party that its authority is greater than that granted to it under the terms of this Agreement. 1.2 Legal Responsibility The COMPANY shall perform or cause to be performed the Work and all other services required by this Agreement. The COMPANY shall assure that all of the Work is accomplished in a workmanlike manner and that all services which require the exercise of professional skills or judgment shall be accomplished by professionals qualified and competent in the applicable discipline and appropriately licensed in the State of Florida, if required by law. All Project Documents that are required to be prepared by the COMPANY shall be in accord with all applicable codes, standards, and regulations and shall be prepared by qualified personnel. Where required by Florida law, Project Documents shall bear the stamp or seal of architects or engineers licensed in the State of Florida. The COMPANY shall remain responsible for all services performed, whether by the COMPANY or its subcontractors or others on its behalf, in accordance with the terms of Schedule R, throughout the term of this Agreement. If the COMPANY fails to comply with the foregoing standards, the COMPANY shall perform again, at its own expense, any and all Work required to be re-performed as a direct result of such failure. Any review, approval, Page 1342 of 1802 acceptance or payment for any and all of the COMPANY's performance by the CITY shall not relieve the COMPANY of its responsibility for the services performed. This provision in no way limits the CITY'S rights against the COMPANY either under this Agreement in law or in equity. 1.3 Insurance The COMPANY shall purchase, maintain, and provide evidence of insurance coverage of the types, in the amounts and for the periods specified in Schedule Q(Insurance and Bonds). On the date described in paragraph 5.1 hereof, the CITY shall be responsible for providing insurance coverage on the ECMs. The COMPANY may not commence performance of the Work or other services under this Agreement until all required insurance is obtained and evidence of it is received and approved by the CITY as described in paragraph 2.1, but the failure of the CITY to obtain such evidence from the COMPANY before permitting the COMPANY to commence the Work shall not be deemed to be a waiver by the CITY, and the COMPANY shall remain under a continuing obligation to obtain and maintain the required coverage and to supply evidence of coverage in accordance with Schedule Q(Insurance and Bonds). The COMPANY's failure to obtain or keep such insurance in force shall constitute an Event of Default under this Agreement within the meaning of Article 11, and in addition to the remedies provided therein, the CITY reserves the right to stop the Work,without penalty or liability to CITY,until evidence of the requisite coverage is provided. The COMPANY shall require all subcontractors performing any portion of the Work to carry the insurance required in Schedule Q (Insurance and Bonds)and the COMPANY may, at its option, provide the coverage for any or all subcontractors, and, if so,the evidence of insurance submitted shall so stipulate. The COMPANY and each of its subcontractors agree that they shall waive any rights of subrogation against the CITY. The COMPANY shall timely renew the required insurance as necessary to keep such coverage in effect for the periods specified in Schedule Q (Insurance and Bonds)and shall supply the CITY,with evidence of all required insurance including updated replacement Certificates of Insurance and amendatory riders or endorsements that clearly evidence the continuation of all coverage in the same manner, limits of protection, and scope of coverage, as was provided by the Certificates of Insurance, amendatory riders or endorsements originally supplied. The COMPANY expressly understands and agrees that any insurance protection furnished by the COMPANY hereunder shall in no way limit its responsibility to indemnify and hold harmless the CITY, subject to the provisions of this Agreement. 1.4 Performance and Labor and Material Payment Bonds The COMPANY shall, as soon as practicable following the execution date set forth in Article 15 hereof, but In no event more than sixty (60) days therefrom, and prior to commencing the Work, deliver to the CITY a Performance Bond and a Labor and Material Payment Bond securing its obligations to be performed under this Agreement until the Acceptance of the Work by the CITY. Each bond shall be in the amount set forth in Schedule Q (Insurance and Bonds) hereof. The Performance Bond and Labor and Material Payment Bond shall only apply to the installation portion of this Agreement and does not apply In any way to energy savings guarantees, payments or maintenance provisions, except that the Performance Bond shall guarantee that the ECMs installed pursuant to this Agreement are new, in good and proper working condition and free of defective materials and workmanship for a period of one (1) year following completion and acceptance of the Work, as evidenced by the CITY's executed Certificate of Acceptance (Exhibit II (ii). 2 Page 1343 of 1802 1.5 Cooperation with the CITY's Consultants The CITY reserves the right to designate authorized representatives or to retain consultants at its expense, including an Architect/Engineer,to act on its behalf with respect to administering the performance required under this Agreement throughout its term. The CITY and its representatives and consultants shall at all times have reasonable access to the Work, subject to the safety rules and requirements of the site of the Work. The COMPANY agrees to cooperate with any representative of,or consultant retained by,the CITY. 1.6 Joint and Several Liability Each and every obligation or undertaking herein to be fulfilled or performed by the COMPANY shall be the joint and several obligation of the COMPANY and its successors or assigns. 1.7 Miscellaneous Other rights and responsibilities of the COMPANY are set forth throughout this Agreement and in the Project Documents described in paragraph 3.5 hereof and are included under other titles, articles, sections and headings for convenience. It is the responsibility of the COMPANY to familiarize itself with all provisions of this Agreement and the Project Documents in order to understand fully the entirety of its rights and responsibilities hereunder. Article 2: The CITY's Rights and Responsibilities 2.1 Project Administration The CITY shall be primarily responsible for the administration and monitoring of the performance of the Work by the COMPANY. The CITY's Representative designated in paragraph 10.9 shall be the principal point of contact between the CITY and the COMPANY relative to the day to day performance required under this Agreement. 2.2 Responsibilities of the CITY Tasks to be performed by the CITY in the administration and coordination of this Agreement include, but are not limited to the following areas: (i) Review and approve required insurance coverage and bonds within twenty (20) business days following receipt of such documents by the CITY to ensure compliance with the terms of this Agreement; (ii) Review and approve the ECM Submittals required under paragraph 2.3 hereof within twenty (20) calendar days after receipt by the CITY of such ECM submittals to ensure: (a) That the design and installation of the ECMs is adequately described and illustrated; (b) That the design and installation of the ECMs is consistent with current and known future capital projects at the Premises as defined in Schedule L(Current and Known Future Capital Projects at the Premises); and (iii) Review and approve all submittals required under paragraphs 2.3 and 3.5 herein, in accordance with the timeframes set forth in Schedule K(Project Installation Schedule). (iv) Attend project meetings. 3 Page 1344 of 1802 2.3 ECM Submittals ECM submittals shall provide sufficient detail to allow the CITY to complete the reviews described in paragraph 2.2,and shall include: (i) Date and revision dates. (ii) Project Number and Title. (iii) Names, as applicable, of the COMPANY representatives, subcontractor, sub-subcontractor, supplier, manufacturer or detailer. (iv) Identification of product or material. (v) Relation to adjacent structure or material. (vi) Field Dimensions, clearly identified. (vii) Specification page and number. (viii) Specified standards,such as ASTM or ANSI. (ix) Identification of previously approved deviation from Project Documents. (x) Stamp or seal of the preparer of the ECM submittal, and the Company's certification that it has reviewed and approved the submittal as to its accuracy and compliance with the provisions of this Agreement. (xi) Drawings, plans, specifications, shop drawings, product data, and where appropriate or reasonably required, product samples. At the request of the CITY, and where appropriate or reasonably required (as determined by CITY, in its reasonable judgment and discretion),the COMPANY shall provide on-site"mock-ups"and demonstrations of the ECMs at the Premises which shall also be construed as ECM submittals under the provisions of this paragraph. Within twenty(20) calendar days of receipt of each of the ECM submittals, the CITY shall complete its review of the submittals and provide written approval of the submittals or if the submittals have not been approved,written explanation as to the reason therefor. The COMPANY shall submit a revised submittal within twenty (20) calendar days to the CITY for review and approval and the CITY shall have twenty (20) calendar days from receipt thereof to complete its review of the revised submittals. The COMPANY shall be responsible for any delays caused by rejection of incomplete or inadequate submittals. The COMPANY may not commence any of the Work which requires the submittals without written approval by the CITY. The COMPANY's responsibility for errors, omissions, deviation from existing conditions, or deviation from the Project Documents in submittals is not relieved by the CITY'S review and approval thereof. 2.4 Drawings, Specifications and Surveys Provided by the CITY (a) The CITY will make available for review by the COMPANY, any of its working drawings and specifications concerning the Premises, such as it may have, and without representation or warranty of any kind,which are reasonably necessary for the execution of the Work. (b) The CITY shall provide the COMPANY with such surveys, such as it may have, but without representation or warranty of any kind, describing the physical characteristics, legal limitations, and utility locations for the site of the Work. (c) The CITY will make available for review by the COMPANY such working drawings, specifications, surveys and "As-Built" drawings concerning the Premises such as it may have, but without representation or warranty of any kind, and which relate to work being performed by other companies at the Premises; (d) All drawings, specifications, surveys and copies thereof furnished by the CITY are and shall remain CITY property. All "As-Built" drawings prepared under this Agreement, upon payment of all amounts owed hereunder, shall become CITY property. With the exception of one (1) set of such drawings, specifications, surveys and "As-Built" drawings for each party hereto, such drawings, 4 Page 1345 of 1802 specifications, surveys, and "As-Built"drawings are to be returned or suitably accounted for to the CITY at the completion of the Work. (e) The COMPANY understands that it is obligated to verify, to the extent it deems necessary, any • and all information furnished by CITY pursuant to this Section 24, and that it is solely responsible for the accuracy and reliability of all such information used by COMPANY. 2.5 Ownership, Dissemination and Publication of Documents Upon Acceptance of each ECM pursuant to this Agreement, the drawings, specifications, reports, renderings, models, electronic media, and all such other documents to be prepared and furnished by the COMPANY to CITY pursuant to this Agreement that relate to such ECM. shall be the property of the CITY and the CITY shall have a license to use any copyrighted material contained in such documents. All documents listed above may be issued for informational purposes by the CITY without additional compensation to the COMPANY. 2.6 Interpretation of Agreement The CITY shall have the sole authority to determine questions of fact that arise in relation to the interpretation of this Agreement and the COMPANY'S performance hereunder. However, such determinations are subject to the Alternative Dispute Resolution procedures as described in Schedule P (Alternative Dispute Resolution Procedures). Unless the Parties agree otherwise, or the Work cannot be continued without a resolution of the question of fact, such determinations and Alternative Dispute Resolution procedures shall not be cause for delay of the Work. The COMPANY shall proceed diligently with the performance of this Agreement and in accordance with the CITY'S decision whether or not the COMPANY or anyone else has an active claim pending. Continuation of the Work shall not be construed as a waiver of any rights accruing to COMPANY and/or CITY (as the case may be). Article 3: The Energy Conservation Project (The "Project") 3.1 Project Defined The COMPANY shall design, procure, fabricate, and install the ECMs specified in Schedule A (Equipment to be Installed)and provide training, commissioning, maintenance and monitoring,and all other services specified in this Agreement and the Project Documents set forth in paragraph 3.5 at the Premises described in Schedule D (Premises). 3.2 Energy Audit Report The Energy Audit Report prepared by the COMPANY and accepted by the CITY contains specific recommendations and documentation concerning the ECMs, systems, and services to be provided at the Premises and is incorporated herein by reference. Notwithstanding, the provisions of this Agreement, the Schedules and Project Documents referenced in paragraph 3.5 shall govern in the event of any inconsistencies between the Energy Audit Report and the provisions of this Agreement. Schedule M provides a description of existing equipment at the Premises that was assessed by the Company in connection with each ECM. 3.3 Annual Energy Savings Guaranty The COMPANY has formulated and guaranteed the level of energy and operating cost savings as provided for in Schedule B (Energy Savings Guaranty), which will be achieved each year as a result of the performance by COMPANY of the services specified in this Agreement utilizing the Methods of Savings Measurement and Verification set forth in Schedule N(Methods of Savings Measurement Verification). 5 Page 1346 of 1802 3.4 Annual Review and Reimbursement Energy savings achieved at the Premises shall be reported, reconciled and verified pursuant to the provisions of Schedule N (Methods of Savings Measurement Verification). If said annual review, reconciliation, and verification of energy savings discloses that the COMPANY has failed to achieve the annual guaranteed energy and operating cost savings set forth in Schedule B (Energy Savings Guaranty), the COMPANY will pay the CITY the difference between the annual amount guaranteed and the amount of actual annual energy and operating cost savings achieved at the Premises. The COMPANY shall remit such payments to the CITY within thirty (30) days of written demand therefore by the CITY. When the total energy and operating cost savings in any one year during the guarantee period exceed the Energy Savings Guaranty as set forth in Schedule B (Energy Savings Guaranty) and are in addition to those monies due the COMPANY for compensation for services as set forth in Schedule C (Compensation to Company), such excess savings shall first be applied to reimburse COMPANY for any payment COMPANY made to CITY to meet COMPANY's guarantee for previous years in which the energy savings fell short of COMPANY's Energy Savings Guaranty under the terms as set forth in Schedule B(Energy Savings Guaranty). No excess savings will be credited to satisfy any shortfall(s)in Energy Savings Guaranty(s) in future years of the contract. 3.5 Project Documents The Project Documents include: • The executed ESA • The Energy Audit Report • COMPANY Submittals specified in paragraph 2.3. • Certificates of Insurance • Executed Performance Bond and Labor and Material Payment Bond • Drawings, Specifications and Surveys furnished by the CITY in accordance with paragraph 2.4. The Project Documents also include the following Schedules, Attachment and Exhibits that are hereby incorporated herein by reference and made a part of this ESA when approved by the CITY and COMPANY: Schedule A Equipment to be Installed Schedule B Energy Savings Guaranty Schedule C Compensation to Company Schedule D Premises Schedule E Calculation of Baseline/Benchmarks Schedule F Financing Agreement Schedule G Company Maintenance Responsibilities Schedule H CITY Maintenance Responsibilities Schedule I ECMs Operating Parameters/Standards of Comfort&Service Schedule J Company Training Responsibilities Schedule K Project Installation Schedule Schedule L Current and Known Future Capital Projects at the Premises Schedule M Pre-Installation Equipment Inventory Schedule N Methods of Savings Measurement and Verification Schedule 0 Systems Startup and Commissioning of ECMs Schedule P Alternative Dispute Resolution Schedule Q Insurance and Bonds Schedule R Warranties Schedule S Proposed Final Project Cost& Proposed Final Project Cash Flow Analysis Schedule T Applicable Federal Requirements for ECM-7 and portions of ECM-3 Schedule U Procurement Strategy 6 Page 1347 of 1802 Attachment A Construction Process Exhibit I Performance Bond/Construction Bond Exhibit II(i) Certification of Acceptance--Energy Audit Report Exhibit II(ii)Certification of Acceptance—Energy Conservation Measures Exhibit II(iii)Notice of Substantial Completion Exhibit II(iv)Notice of Final Completion Exhibit III Equipment Warranties Exhibit IV Notice to Proceed 3.5.1 Project Documents Furnished by the CITY; No Warranty Pursuant to paragraph 2.4(c), the CITY shall make available for the COMPANY'S review, inspection, and duplication at COMPANY'S expense,such Project Documents as it may have which relate to any work being performed by other companies at the Premises under separate contracts with the CITY unrelated to the COMPANY's performance of the Work under this Agreement, including but not limited to drawings, specifications, surveys and as-built drawings. The furnishing of such Project Documents by the CITY shall not constitute a warranty as to the accuracy or completeness of such Project Documents. 3.5.2 Review of Project Documents; Notification to the CITY The COMPANY shall carefully review all Project Documents, including all addenda,whether prepared by the COMPANY, its subcontractors or furnished by the CITY for errors, inconsistencies, or omissions relative to the performance of the Work(any and all such errors; inconsistencies or omissions in the Project Documents may also be referred to as a "conflict" or "conflicts"). Upon completion of its review of the Project Documents, and prior to commencing the Work, the COMPANY shall provide written notice to the CITY that (i)there are no errors, inconsistencies or omissions in the Project Documents pertaining to the performance of the Work at the Premises; or, (ii) specifying the nature of any errors, inconsistencies or omissions or inconsistencies noted from the COMPANY's review of the Project Documents. All Work to be performed under this Agreement by the COMPANY or its subcontractors which the COMPANY indicate is in conflict with the Project Documents or the work of other companies performing on the Premises shall be brought to the attention of the CITY before the Work is commenced. 3.5.3 The COMPANY understands that it is obligated to verify, to the extent it deems necessary, all information furnished by CITY, and that it is solely responsible for the accuracy and applicability of all such information used by COMPANY. 3.5.4 The COMPANY shall be required to coordinate its review of the Project Documents with the appropriate City department(s)overseeing or having jurisdiction over the Project so as to ensure that there is no duplication of Work. 3.5.5 Correction of Conflicting Work In the event that the COMPANY fails to properly prepare or review Project Documents or commences the Work without providing notice to the CITY of any errors, inconsistencies or omissions it discovers in the Project Documents, the COMPANY shall, upon written direction from the CITY, remove all such Work or portion thereof so conflicting, and rebuild it as directed at no additional cost to the CITY, provided that the Project Documents furnished by the CITY have put the COMPANY on reasonable notice that an error, inconsistency,or omission existed. 7 Page 1348 of 1802 Article 4: Implementation of the Energy Conservation Project (the "Work") 4.1 Description of the Work The design, procurement, fabrication, installation and commissioning of the ECMs specified in Schedule A (Equipment to be Installed) and any training services described in Schedule J (Company Training Responsibilities), which are integral to the operation of the ECMs, are referred to in this Agreement as the "Work" The maintenance, monitoring, and savings measurement and verification services detailed in Schedule G (Company Maintenance Responsibilities) and N (Methods of Savings Measurement and Verification) and any Post-Acceptance Training services detailed in Schedule J (Company Training Responsibilities), performance of which does not commence until after the Commencement Date, are not part of the Work. 4.2 Performance of the Work (i) Preconstruction Services: The COMPANY has prepared the Energy Audit Report submitted as of September 8, 2009. The COMPANY has also assisted the CITY in obtaining financing for the Work. (ii) Construction Work: Upon the Company's receipt of (i) the Notice To Proceed (as set forth in Exhibit IV) and (ii) evidence of the funding of an escrow account with immediately available funds sufficient for the payment of the Contract Cost (as defined in Schedule C), the Company shall furnish all labor, materials and equipment and perform all work and services required for the completion of the Work including the installation of the ECMs. Construction and equipment installation shall proceed in accordance with the provisions contained in Attachment A (Construction Process) and the Project installation schedule approved by CITY and attached hereto as Schedule K(Project Installation Schedule). 4.3 Systems Startup/Commissioning The COMPANY shall conduct a thorough and systematic performance test of each element and total system of the installed ECMs in accordance with Schedule O (Systems Startup and Commissioning of ECMs). The COMPANY shall provide advance written notice of at least ten (10) business days to the CITY of the scheduled test(s). The CITY shall have the right to designate representatives to be present at any or all such tests including representatives of the manufacturers of the ECMs. The COMPANY shall demonstrate that all ECMs installed comply with the requirements of the Project Documents. The COMPANY shall test all components and systems of the installed ECMs. The COMPANY, or its subcontractor(s), shall correct or adjust all deficiencies in operation of the ECMs. Article 5: Commencement Date and Term; Interim Period; Fiscal Funding 5.1 Commencement Date The Commencement Date shall be the first day of the month after the month in which all schedules are in final form and accepted by the CITY and COMPANY shall have delivered a written Notice of Final Completion, as set forth in Exhibit II(iv), to the CITY that (i) it has completed the installation and commissioning and commenced operating all of the energy conservation measures specified in Schedule A (Equipment to be Installed); (ii) no Event of Default under Article 11 exists; (iii) the Energy Savings Guaranty set forth in Schedule a (Energy Savings Guaranty) is in full force and effect; and (iv)the CITY has inspected and accepted said installation and operation as evidenced by the Certification of Acceptance as set forth in Exhibit II (ii). Compensation payments due to COMPANY for project monitoring, savings measurement and verification, and reporting and maintenance 8 Page 1349 of 1802 services for any ECM under this Agreement, as set forth in Schedule C (Compensation to Company) shall begin no earlier than thirty(30)days from the Commencement Date as defined herein. 5.2 Term of Contract; Interim Period Subject to the following sentence, the term of this Agreement ("Term) shall be thirteen (13) years, measured beginning with the Commencement Date. Nonetheless, the Agreement shall be effective and binding upon the parties immediately upon its execution, and the period from contract execution until the Commencement Date shall be known as the "Interim Period". The Interim Period, during which the COMPANY shall design, procure, fabricate and install the ECMs specified in Schedule A(Equipment to be Installed), shall not exceed twenty-four (24) months from the date of this Agreement, unless the COMPANY obtains an extension, which extension is subject to the prior written approval of the CITY„in its sole and reasonable discretion (but which shall not be unreasonably withheld); provided, however, the COMPANY's obligations to complete the Work within such twenty-four(24) month period are subject to the CITY satisfying its review obligations as set forth in Sections 2.2, 2.3, Attachment A and Schedule C, in the time periods agreed to by the CITY in such provisions. All energy and operating cost savings achieved during the Interim Period will be credited to the CITY. 5.3 Nonappropriation of Funds In the event that, in any CITY fiscal year for which payments are due COMPANY under this Agreement, no CITY or other funds, or insufficient CITY or other funds, are appropriated and budgeted, and funds are otherwise unavailable by any other reasonably commercial means (taking into consideration that CITY is a governmental entity), then the CITY will, not less than sixty (60) days prior to end of such applicable fiscal year, in writing, notify the COMPANY of such occurrence and this Agreement shall terminate on the last day of the fiscal year for which appropriations were made,without liability, penalty or expense to the CITY of any kind whatsoever, except as to the portions of payments herein agreed upon for which the CITY and/or other funds shall have been already appropriated and budgeted. Article 6: Company Compensation 6.1 Company Compensation for the Work Payments to the COMPANY for the Work shall be made by the CITY in the amounts and in accordance with Schedule C (Compensation to Company) hereto. The amount specified as Compensation for the Work is inclusive of all costs and fees to be paid for the Work pursuant to this Agreement including any training services provided prior to acceptance of the Project by CITY and as provided for in Schedule J (Company Training Responsibilities). The Contract Cost referenced in Schedule C, (Compensation to Company) shall be considered a guaranteed maximum price and such Schedule C represents the final amount that the CITY has approved, authorized, and budgeted for the Work. Accordingly, this amount shall not be exceeded and/or increased without the express prior written authorization of the Mayor and City Commission. 6.2 Maintenance, Monitoring, Savings Measurement and Verification and any Post- Acceptance Training Fees Payment to the COMPANY for maintenance, monitoring, savings measurement, verification and reporting, and Post-Acceptance Training services performed after the Commencement Date shall be made by the CITY pursuant to and in accordance with Schedule C(Compensation to Company). 9 Page 1350 of 1802 Article 7: Acceptance 7.1 Acceptance of the Work Acceptance of the Work ("Acceptance") shall occur when the COMPANY's performance of the Work is complete, in accordance with the Project Documents so that the CITY can utilize the installed ECMs for their intended use and the Energy Savings Guaranty provided by COMPANY under paragraph 3.3 and Schedule B (Energy Savings Guaranty) becomes effective and The CITY has inspected and accepted said installation and operation as evidenced by the Certification of Acceptance as set forth in Exhibit II (ii). 7.2 Required Acceptance Submittals by the Company The COMPANY shall submit the following documents to the CITY with its Notice of Final Completion: (a) All Project Record Documents as described in paragraph 3.5; (b) All releases of liens arising out of this Agreement, or, at the CITY's option and discretion, receipts in full in lieu thereof,which were not previously delivered, and an affidavit that so far as the COMPANY has knowledge or information, the releases and receipts include all labor and material for which a lien could be filed. The COMPANY shall submit lien waivers, sworn statements, guarantees,full releases, or other evidence reasonably satisfactory to the CITY that there are no liens, claims, or stop notices pending, filed, or threatened against the CITY, the COMPANY, the Work or the ECMs whatsoever. The COMPANY shall, if any subcontractor refuses to furnish a release or receipt in full, furnish a bond satisfactory to the CITY to indemnify the CITY against any lien. If any lien remains unsatisfied after the COMPANY has received payment due for the Work,the COMPANY shall refund to the CITY all moneys that the CITY may be compelled to pay in discharging the lien, including all costs and reasonable attorney fees; (c) Certificates of inspection for all ECMs by all applicable governmental authorities; (d) Asbestos abatement compliance records, if applicable; Any retainage amounts will be paid at the completion of and acceptance by CITY of final punch list items. Article 8: The Energy Conservation Measures 8.1 ECM Warranties The COMPANY warrants that all ECMs designed, procured,fabricated,and installed pursuant to this Agreement are new, in good and proper working condition and free from defects in materials and workmanship for a period of one (1)year from the date of beneficial use of each ECM, as evidenced by an accepted Notice of Substantial Completion provided by Company to CITY (see Exhibit II (iii) and Attachment A.14(e)). for such Work, as specified in Schedule R (Warranties), Any manufacturers' warranties which exceed this one (1) year period shall be assigned to CITY to the extent allowed by the manufacturer. The COMPANY shall deliver to the CITY for inspection and approval all such written warranties and shall pursue rights and remedies against the manufacturer and each prior seller of the ECMs under the warranties in the event of equipment malfunction, improper or defective function, or defects in parts, workmanship, or performance. The COMPANY shall be responsible for managing warranty activity during the warranty periods set forth in Schedule R (Warranties). The cost of any damage,loss or claims by any person arising out of the use or operation of the ECMs or damage to the ECMs and their performance, including damage to other property and equipment of the CITY or the Premises, due to the COMPANY's failure to exercise its warranty rights shall be borne by the COMPANY. Except as provided above, COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, 10 Page 1351 of 1802 WHETHER STATUTORY, WRITTEN, ORAL OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES AS TO THE VALUE, DESIGN, AND CONDITION OR FITNESS FOR USE OR PARTICULAR PURPOSE OR MERCHANTABILITY, REGARDING THE EQUIPMENT, ECMS OR ANY SERVICES PROVIDED HEREUNDER. The COMPANY warrants that all workmanship, materials, and equipment used in conjunction with the ECMs will be in conformance with the Project Documents and free from defects for the period, commencing with the dale of the beneficial use of each ECM to the CITY and continuing for the period set forth in Schedule R(Warranties). 8.2 Correction of Warranted Work (a) Commencing with the date of beneficial use of each ECM, as evidenced by an accepted Notice of Substantial Completion provided by Company to CITY(see Exhibit II (iii) and Attachment A.14(e))and continuing for the warranty periods set forth in Schedule R (Warranties)for each ECM, or within such longer period of time as may be prescribed by Florida law or by the terms of any applicable special warranty required by the Project Documents, the COMPANY shall correct or replace all faulty, defective or nonconforming Work in accordance with the timeframes set forth in 82(c). After receipt of written notice from the CITY to correct such fault or defect, whether it was observed before or after acceptance of the Work,the COMPANY will correct the Work unless the CITY has given the COMPANY a written waiver of the specific fault or defect. Notice may be given by telephone in the event of an emergency situation. The COMPANY shall bear all costs of replacing or correcting such faulty, defective or nonconforming Work. (b) The COMPANY shall, at its own expense, remove from the Premises all portions of defective and nonconforming Work which COMPANY is obligated to replace or correct under this paragraph 8.2 unless removal has been waived in writing by the CITY. (c) If the COMPANY fails to correct faulty, defective or nonconforming Work as provided in this Section within seventy two (72) hours after receipt of notice, in the case of emergency conditions, or within seven (7) business days in other cases after the COMPANY's receipt of written notice from the CITY of such faulty, defective or nonconforming Work, but in any event no more than thirty (30) days, the CITY may correct such work at the COMPANY's expense including costs incurred due to the removal of faulty, defective or non-conforming equipment, and removal and storage of equipment or materials left at the Premises by the COMPANY. (d) If the COMPANY does not pay the cost incurred by the CITY for such repair, removal and storage within ten (10) days of written demand therefor, the CITY may upon ten (10) additional days' written notice, sell any material and equipment not removed by the COMPANY at auction or at private sale and shall account for the net proceeds thereof,after deducting all the costs that should have been borne by the COMPANY. If such proceeds of sale do not cover all costs which the COMPANY should have borne, the difference shall be charged to the COMPANY. If the payments then or thereafter due the COMPANY are not sufficient to cover such amount, the COMPANY shall pay the difference to the CITY. (e) The COMPANY shall bear the cost of repairing or replacing the work of other companies which was destroyed or damaged by such removal or correction except to the extent such damage or destruction was as a result of the gross negligence or willful misconduct of CITY. (f) Nothing contained in this Section shall be construed to establish a period of limitation with respect to any other obligation which the COMPANY might have under the Project Documents. The establishment of the time period set forth in paragraph 8.2(a)above, relates only to the specific obligation of the COMPANY to correct the Work and has no relationship to the time within which its obligation to comply with the Project Documents may be sought to be enforced, nor to the time within which proceedings may be commenced to establish the COMPANY's liability with respect to its obligations other than to specifically correct the Work. Notwithstanding the provisions of this paragraph 8.2, the COMPANY shall, on demand made by the CITY, at any time within the Term provided in Section 5.2, promptly repair or replace all defective or non-conforming work resulting from fraudulent misrepresentation, fraudulent concealment or gross negligence by the COMPANY or its subcontractors in the performance of the Work. 11 Page 1352 of 1802 8.3 Location and Access The CITY shall provide sufficient space at the Premises for the installation and operation of the ECMs for the term of this Agreement, including access to office space with a telephone line, if necessary to allow the COMPANY to perform required maintenance, monitoring, and training services. The CITY shall provide access to the Premises for the COMPANY and its employees or subcontractors to install, adjust, inspect, maintain, and repair the ECMs in accordance with the terms of this Agreement during regular business hours, or such other reasonable hours as may be requested by the COMPANY and acceptable to the CITY. The COMPANY's access to correct any emergency condition shall not be unreasonably restricted by the CITY. 8.4 Company Maintenance and Monitoring Responsibilities for ECMs The COMPANY shall be responsible for providing the maintenance, monitoring, repairs, and adjustments to the ECMs as set forth in Schedule G (Company Maintenance Responsibilities). All replacements of and alterations or additions to the ECMs shall become part of the ECMs and shall become the property of the CITY. My replacements of and alterations or additions made by the COMPANY to the CITY's pre-existing equipment, or equipment acquired by the CITY during the term of this Agreement, shall become part of said equipment and be owned by the CITY. The COMPANY shall be compensated for such maintenance and monitoring services pursuant to Schedule C (Compensation to Company) hereof. In the event of the COMPANY's failure to provide maintenance, service, repairs and adjustments to the ECMs, as provided in Schedule G (Company Maintenance Responsibilities) or if an Event of Default exists pursuant to Article 11, the CITY may withhold fees due to the COMPANY for such services until such repairs or adjustments are completed or such Event of Default is cured. The CITY shall notify the COMPANY in writing when any payments are so withheld. The withholding of fees by the CITY under this paragraph 8.4 shall not release the COMPANY from its obligation to provide the Energy Savings Guaranty pursuant to paragraph 3.3 and Schedule B (Energy Savings Guaranty) hereof. 8.5 CITY Operating and ECMs Maintenance Responsibilities The CITY shall be responsible for providing the maintenance, monitoring,service,repairs and adjustments to the ECMs as set forth in Schedule H (CITY Maintenance Responsibilities). Except as set forth in Schedule G (COMPANY Maintenance Responsibilities) and Schedule H (CITY Maintenance Responsibilities),the CITY shall not move, modify, remove, adjust,alter or change in any material way the ECMs, or any part thereof, during the term of this Agreement, without prior written direction or approval of the COMPANY, except in the event of an occurrence reasonably deemed by the CITY or the COMPANY to constitute a bona fide emergency. The CITY acknowledges that substantial deviations from the operating parameters set forth in the Schedules to the ESA may constitute a material change in accordance with paragraph 9.3 hereof. In addition to the responsibilities set forth in Schedule H (CITY Maintenance Responsibilities), the CITY shall make commercially reasonable efforts to maintain the Premises in good repair and to protect and preserve the ECMs in good repair and condition in accordance with applicable manufacturers' recommendations which shall be provided to the CITY by the COMPANY and to maintain the operating conditions of all mechanical systems and energy related systems located at the Premises. The COMPANY shall notify the CITY of any improper maintenance or repair as soon as COMPANY has notice thereof. The CITY acknowledges that improper repairs or maintenance of the ECMs by CITY may constitute a Material Change in accordance with paragraph 9.3, and that the provisions of paragraph 9.5 may be applicable. 8.6 Training by the Company The COMPANY shall conduct the training program described in Schedule J (Project Installation Schedule) hereto. 12 Page 1353 of 1802 8.7 ECMs Upgrades; Alterations The COMPANY shall have the right, at all times during the term of this Agreement, subject to the CITY's written approval, such approval not to be unreasonably withheld, conditioned or delayed, to modify or replace any of the ECMs or install additional ECMs and to revise any procedures for the operation of the ECMs or implement other procedures at the Premises provided that: (i) such actions by the COMPANY do not result in modifying the standards of comfort and service set forth in Schedule I (Operating Parameters for ECMs/Standards of Comfort 8 Service) without the express written approval of the CITY; (ii) such modifications or additions to, or replacements of the ECMs, and any operational changes, or new procedures are necessary to enable the COMPANY to achieve the energy savings guaranteed by the COMPANY at the Premises and (iii) any costs incurred relative to such modifications, additions or replacements of the ECMs, or operational changes or new procedures shall be the responsibility of the COMPANY. All modifications, additions or replacements of the ECMs or revisions to operating or other procedures shall be described in a supplemental Schedule(s) to be provided to the CITY for approval, which shall not be unreasonably withheld, and incorporated into this Agreement provided that any replacement ECM shall be new and have equal or better potential to reduce energy consumption at the Premises than the ECM being replaced. The COMPANY shall update the software to be used in connection with the ECMs, subject to the software license agreements in accordance with the provisions of Schedule G (Company Maintenance Responsibilities). All replacements of and alterations or additions to the ECMs shall become part of the ECMs described in Schedule A (Equipment to be Installed) and shall become the property of the CITY. The COMPANY and the CITY shall determine in accordance with the provisions of paragraph 9.5, what, if any, adjustments to the Baseline/Benchmarks set forth in Schedule E (Calculation of Baseline/Benchmarks) are necessary due to upgrades or alterations of the ECMs which are necessary to enable the COMPANY to achieve the level of energy savings guaranteed by the COMPANY. 8.8 Malfunction and Emergencies The CITY shall use reasonable efforts to notify the COMPANY or its designee within forty-eight(48) hours after the CITY's actual knowledge of the occurrence of: 8.8.1 Any material malfunction in the operation of the ECMs or any pre-existing energy-related equipment; 8.8.2 Any material interruption or alteration of the energy supply to the Premises; 8.8.3 Any material alteration or modification in the ECMs or their operation; and 8.8.4 Any material alteration,modification or change in the Premises or the use of the Premises. The CITY's obligation to use reasonable efforts to notify the COMPANY as soon as reasonably possible shall be deemed satisfied if the CITY reports any said material malfunction, interruption, alteration, modification, or change within forty-eight(48) hours of the CITY's actual knowledge Thereof. The COMPANY and the CITY shall determine in accordance with paragraph 9.5 what, if any, adjustments to the Baseline/Benchmarks set forth in Schedule E (Calculation of Basellne/Benchmarks)are necessary due to any of the events described in this paragraph 8.8. 8.9 Ownership of Certain Proprietary Property Rights The CITY shall acquire no ownership interest in any software, formulas, patterns devices, secret inventions or processes, or copyright, patents, and other intellectual and proprietary rights, or similar items of property which are or may become used in connection with the ECMs. The COMPANY shall grant to the CITY a perpetual, 13 Page 1354 of 1802 irrevocable royalty-free license of any and all software or other intellectual property rights necessary for the CITY to continue to operate, maintain, and repair the ECMs in a manner that will maximize energy consumption reductions beyond the expiration of this Agreement. 8.10 COMPANY's systems, means, cost, and methodologies of evaluating, implementing, accomplishing and determining energy savings for the Project shall be considered privileged and proprietary information as it provides a key component in COMPANY's competitive advantage in the industry. To the extent applicable, such privileged and proprietary information, including COMPANY's financial statements and software, is to be considered a trade secret, defined under Section 812.081, Florida Statutes. The parties agree therefore, that in accordance with public necessity, COMPANY's trade secret information, as such is defined in Florida Statutes, Section. 812.081, be expressly made confidential and exempt from disclosure under Florida public records law. Article 9: The Premises 9.1 Description of the Premises The Premises in which the ECMs are to be installed and services are to be provided by the COMPANY under this Agreement are described in Schedule D(Premises). 9.2 Ownership of Existing Property The Premises and all equipment and materials existing at the Premises at the time of execution of this Agreement shall remain the property of the CITY. 9.3 Material Change Defined A Material Change shall include any change in or to the Premises, not covered by Schedule B (Energy Savings Guaranty), whether structural, operational or otherwise in nature which reasonably could be expected, in the sole and reasonable discretion of CITY, to increase or decrease annual costs of energy usage by at least five (5%), in the aggregate, after adjustments for climatic variations Actions by the CITY which may result in a Material Change which is subject to this paragraph 9.3, include, but are not limited to the following: 9.3.1 Changes in the manner of use of the Premises by the CITY;or 9.3.2 Changes in the hours of operation for the Premises or for any equipment or energy using systems operating at the Premises;or 9.3.3 Permanent changes in the comfort and service parameters set forth in Schedule I (Operating Parameters for ECMs/Standards of Comfort&Service);or 9.3.4 Changes in the occupancy of the Premises;or 9.3.5 Changes In the structure of the Premises;or 9.3.6 Changes in the types and quantities of equipment used at the Premises;or 9.3.7 Modification, renovation or construction at the Premises; or 9.3.8 The CITY's failure to provide maintenance of and repairs to the ECMs pursuant to paragraph 8.5 hereof;or 14 Page 1355 of 1802 9.3.9 Any significant damage to the Premises or the ECMs caused by fire,flood, or other casualty or any condemnation affecting a significant portion of the Premises;or 9.3.10 The permanent or temporary closing of a building at the Premises; or 9.3.11 My other substantially changed condition, other than weather, affecting energy use at the Premises. 9.4 Reported Material Changes; Notice by CITY The CITY shall use reasonable efforts to deliver to the COMPANY a written notice describing all actual or proposed Material Changes in the Premises or in the operations of the Premises no less than thirty (30) days before any actual or proposed Material Change is implemented. Notice to the COMPANY of Material Changes which result because of a bona fide emergency or other situation which precludes advance notification shall be deemed sufficient if given by the CITY within forty-eight (48) hours after the event constituting the Material Change occurred or was discovered by the CITY to have occurred. 9.5 Reported Material Changes; Adjustments to Baseline/Benchmarks My changes in energy usage which occur as the result of a Reported Material Change shall be timely reviewed by the COMPANY and the CITY to determine what, if any, adjustments to the Baseline/Benchmarks set forth in Schedule E (Calculation of Baseline/Benchmarks) are necessitated by such Material Change(s). The COMPANY and the CITY agree that any adjustments made to the Baseline/Benchmarks shall be in accordance with generally accepted engineering principles. Any disputes between the COMPANY and the CITY concerning any such adjustment shall be resolved in accordance with the provisions of Schedule P (Alternative Dispute Resolution Procedures)hereto. 9.6 Unreported Material Changes Upon and after the Commencement Date and in the absence of any reported Material Change(s) in the Premises or in their operations, if energy savings deviates more than five (5%) percent during any month from projected energy savings for that month,after adjustment for changes in climatic conditions,then the COMPANY shall timely review such changes to ascertain the cause of such deviation. The COMPANY shall report its findings to the CITY in a timely manner. The COMPANY and the CITY shall determine what, if any, adjustments to the Baseline/Benchmarks set forth in Schedule E (Calculation of Baseline/Benchmarks) are necessary. My disputes between the COMPANY and the CITY concerning any such adjustment shall be resolved in accordance with the provisions of Schedule P (Alternative Dispute Resolution Procedures)hereto. Article 10: General Terms and Conditions 10.1 Assignment The COMPANY acknowledges that the CITY is Induced to enter into this Agreement by,among other things,the professional qualifications of the COMPANY. The COMPANY agrees that neither this Agreement nor any right or obligation hereunder may be assigned in whole or in part,without the prior written approval of the CITY such approval not to be unreasonably withheld or delayed. The foregoing notwithstanding, COMPANY may assign, without the prior written consent of CITY, its(i)rights and obligations under this Agreement, in whole or in part, to any affiliated or associated company of COMPANY and (ii) rights for payments under this Agreement to any financial institution, lender or investor in connection with a leasing or financing arrangement for the ECMs provided that any such assignee(s) shall honor and agree to continue to be bound by the terms of this Agreement. COMPANY will notify CITY ten (10) business days prior to any such assignment and CITY agrees to acknowledge receipt of such notice in writing within three(3)business days after such notice. 15 Page 1356 of 1802 10.1.1 Assignment by Company The COMPANY may, with prior written consent of the CITY, which consent shall not be unreasonably withheld, delegate its duties and its performance under this Agreement, and/or utilize subcontractors, provided that any delegee(s)or subcontractor(s) shall honor and agree to be bound by the terms of this Agreement. 10.1.2 Notwithstanding the provisions of subsection 10.1.1, or any other term of this Agreement, the COMPANY shall remain jointly and severally liable with its assignee(s) or transferee(s) to the CITY for all of its obligations under this Agreement. 10.1.3 Assignment by the CITY The CITY may transfer or assign this Agreement and its rights and obligations herein to a successor or purchaser of the Premises, or an interest therein, subject to the approval of the COMPANY, which will not be unreasonably withheld,conditioned, or delayed. 10.1.4 Subcontractors COMPANY may elect to use subcontractors and/or subconsultants in meeting its obligations hereunder, provided that any subcontractors and/or subconsultants shall honor and agree to be bound by the terms of this Agreement,to the extent applicable. 10.2 Duty to Indemnify The COMPANY shall defend, indemnify, keep and save harmless the CITY and its agents and employees against all suits, claims, damages, losses and expenses, including attorney's fees, caused by, growing out of, or incidental to, the wrongful or negligent performance of the Work under this Agreement by the COMPANY or its subcontractors to the full extent as allowed by the laws of the State of Florida provided that the CITY shall promptly notify the COMPANY of any suits or claims and shall allow COMPANY, at its sole expense,to settle or defend and control the defense of any suit based upon such claim or claims. In the event of any such injury (including death) or loss or damage, or claims therefor, the COMPANY shall give prompt notice to the CITY. The COMPANY's subcontractors shall include the foregoing as parties as to whom indemnification is due under their subcontracts. 10.2.1 Effect of Statutory Limitations In the event of any claim against the CITY or against any of its officials or employees, in either their personal or official capacities, made by any direct or indirect employee or agent of the COMPANY or of any subcontractor, the COMPANY's indemnification obligation shall not be affected by any limitation on the amount or type of damages, compensation or benefits payable to said employee or agent contained in any other type of employee benefit act. 10.2.2 Intellectual Property Claims Indemnification The COMPANY shall protect, defend, indemnify, and hold the CITY harmless against and from any and all claims,judgments, amounts paid in settlement, costs and expenses, including reasonable attorneys' fees relating to alleged patent, trademark or copyright infringement, misappropriation of proprietary rights, or trade secrets or similar claims, resulting from actions taken by the COMPANY in connection with this Agreement.COMPANY shall in no event be obligated to indemnify CITY to the extent that any injury or damage is caused by the gross negligence or willful misconduct of CITY. 16 Page 1357 of 1802 10.2.3 Waiver of Consequential Damages Neither PARTY shall be liable to another for special, indirect, consequential or punitive damages, even if the PARTY has been advised that such damages are possible. No PARTY shall be liable for lost profits, lost revenue, or lost operating savings, provided, however, and subject to the foregoing, the COMPANY agrees to compensate the CITY for any and all actual damages to real or personal property resulting from ECM malfunction due solely or in part to non-performance or error by the COMPANY. The indemnification provisions of this Section 10.2 shall survive termination or expiration of the Agreement. 10.3 Alternative Dispute Resolution The provisions for Alternative Dispute Resolution (ADR) attached as Schedule P (Alternative Dispute Resolution Procedures) shall govern the resolution of any disputes arising relative to the terms of, or performance required by, this Agreement. 10.4 No Waiver The failure of COMPANY or the CITY to insist upon the strict performance of the terms and conditions hereof shall not constitute or be construed as a waiver or relinquishment of either Party's right to thereafter enforce the same in accordance with this Agreement in the event of a continuing or subsequent default on the part of the COMPANY or the CITY. 10.5 Severability It is agreed that the illegality or invalidity of any term or clause of this Agreement, shall not affect the validity of the remainder of this Agreement and this Agreement shall remain in full force and effect as if such illegal or invalid term or clause were not contained herein. 10.6 Complete Agreement; Amendments This Agreement, when executed, together with all Project Documents and Schedules referred to in paragraph 3.5 and any other exhibits or attachments referred to in this Agreement, shall constitute the entire agreement between the Parties and this Agreement may not be amended or modified except by a written agreement signed by the Parties hereto. 10.7 Further Documents The Parties shall execute and deliver all documents and perform all further acts that may be reasonably necessary to effectuate the provisions of this Agreement. 10.8 Applicable Law This Agreement and the construction and enforceability thereof shall be interpreted under the laws of the State of Florida. Venue for any action will lie in Miami-Dade County, Florida. 17 Page 1358 of 1802 10.9 Notices All notices required under this Agreement shall be in writing and shall be deemed properly served if delivered in person to the individual to whom it is addressed or, three (3) days after deposit in the United States mail, if sent postage prepaid by United States registered or certified mail, return receipt requested, as follows: (a) To the CITY: Office of the City Manager (2 copies of all 1700 Convention Center Drive, Fourth Floor submittals, Miami Beach, FL 33139 correspondence Atm: CITY MANAGER and notices required under the ESA) With a copy to: City of Miami Beach Public Works Dept. 1700 Convention Center Drive, Fourth Floor Miami Beach, FL 33139 Attn: Public Works Director (b) To the COMPANY: John L. Bosch Vice President Ameresco, Inc. 2201 N. West Shore Blvd Tampa, FL 33602 With a copy to: Ameresco, Inc. 111 Speen Street,Suite 410 Framingham, MA 01701 Attn: General Counsel 10.10 Termination for Convenience by the CITY • Subsequent to the the date of execution of the Notice of Final Completion (Exhibit II(iv)) (, this Agreement may be terminated at the sole discretion of the CITY in accordance with the provisions of this paragraph 10.10. The CITY shall provide notice of its election to terminate to the COMPANY no later than thirty (30) days in advance of the end of the current Energy Savings Guaranty Period. The termination shall become effective on the last day of said guaranty period. The COMPANY's obligation to report, reconcile, and verify the energy savings achieved during the guaranty period proceeding termination remains in full force and effect, as does its obligation, pursuant to paragraph 3.4 of this Agreement, to remit payment to the CITY in the event that the energy savings have not been achieved at the level guaranteed by the COMPANY. The termination of this Agreement by the CITY shall release the COMPANY from its obligation to provide maintenance, monitoring and training services after the effective date of termination, as well as its obligation to provide the Energy Savings Guaranty after the termination date. Termination by the CITY shall release it from the obligation to make any payments to the COMPANY for maintenance, monitoring, and training services after the termination date, provided, however, that the CITY is responsible for payment for maintenance, monitoring, and training services performed in accordance with the terms of this Agreement prior to the termination date. Article 11: Events of Default: Remedies; Termination; Right to Offset 11.1 Events of Default by the CITY Each of the following events or conditions shall constitute an "Event of Default" by the CITY with respect to its obligations under this Agreement: 18 Page 1359 of 1802 (i) Any failure to make payments to the COMPANY in accordance with the provisions of Schedule C (Compensation to Company) hereof more than thirty (30) days after written notification by COMPANY that CITY is delinquent in making such payment, provided that the COMPANY is not in default in its performance under the terms of this Agreement; (ii) Any representation or warranty furnished by the CITY in this Agreement proves to be false or misleading in any material respect when made; (iii) Any other material failure by the CITY to perform or comply with the terms and conditions of this Agreement, including breach of any covenant contained herein except, provided that such failure if corrected or cured within thirty(30)days after written notice to the CITY demanding that such failure to perform be cured shall be deemed cured for purposes of this Agreement. 11.2 Remedies Upon Default by the CITY If an Event of Default by the CITY described in paragraph 11.1 occurs, the COMPANY shall first exercise the remedies as provided for in Schedule P(Alternative Dispute Resolution Procedures) . 11.3 Events of Default by the Company Each of the following events or conditions shall constitute an "Event of Default" by the COMPANY for purposes of this Agreement with respect to obligations of the COMPANY: (i) The COMPANY's failure to furnish and install the ECMs in accordance with the provisions of this Agreement and within the time specified by this Agreement; (ii) Failure by the COMPANY to pay any amount owing to the CITY due to the COMPANY's failure to achieve its Energy Savings Guaranty during any Guaranty Year throughout the term of this Agreement or to perform any obligation under the Energy Savings Guaranty; (iii) The standards of comfort and service set forth in Schedule I (Operating Parameters for ECMs/Standards of Comfort 8 Service) are not provided due to failure of the COMPANY to properly design, install, maintain, repair, or adjust the ECMs except that such failure if corrected or cured within thirty(30)days after written notice to the COMPANY demanding that such failure be cured shall be deemed cured for purposes of this Agreement; (iv) Failure to perform Its obligations in accordance with the terms of this Agreement, including failure to provide sufficient personnel, equipment or material to ensure the performance required and failure to meet the Project Installation Schedule provided for in Schedule K (Project Installation Schedule), due to a reason or circumstance within the COMPANY's reasonable control; (v) The COMPANY's failure to promptly re-perform, within a reasonable time, Work (or services) that were rejected as defective or nonconforming; (vi) The COMPANY's discontinuance of the required performance for reasons not beyond the COMPANY's reasonable control; (vii)Any lien or encumbrance upon the ECMs by any subcontractor, laborer, materialman or other creditor of the COMPANY If not removed within sixty(60)days after receipt of such lien filing by COMPANY or an agreement to allow COMPANY to provide a bond or other security instrument to assure CITY that COMPANY will resolve the lien or encumbrance in dispute; (viii)Any material misrepresentation, whether negligent or willful and whether in the inducement or in the performance, made by the COMPANY to CITY; 19 Page 1360 of 1802 (ix) The filing of a bankruptcy petition whether by the COMPANY or its creditors against the COMPANY which proceeding shall not have been dismissed within sixty(60) days of its filing, or an involuntary assignment for the benefit of creditors or the liquidation or insolvency of the COMPANY; (x)Any failure by the COMPANY to perform or comply with the terms and conditions of this Agreement, including breath of any covenant contained herein except that such failure, if corrected or cured within thirty (30) days after notice to the COMPANY demanding that such failure to perform be cured, shall be deemed cured for purpose of this Agreement. 11.4 Remedies upon Default by the Company The occurrence of any Event of Default which the COMPANY has failed to cure within thirty(30)calendar days after receipt of notice given in accordance with the terms of this Agreement and specifying the Event of Default shall, at the sole option of the CITY,permit the CITY to declare the COMPANY in default; provided however, that if such Event of Default cannot reasonably be cured within such thirty(30)day period,such Event of Default shall not constitute a default if the COMPANY begins to cure such Event of Default within such thirty (30)-day period and diligently pursues the actions necessary to cure such Event of Default so that the Event of Default is cured as soon as reasonably possible, but in no event shall such extended cure period exceed sixty(60)days..Written notification of the Event of Default, and the intention of the CITY to terminate this Agreement, shall be provided to the COMPANY and such decision shall be final and effective upon the COMPANY's receipt, as defined herein, of such notice. Upon the giving of such notice as provided herein, the COMPANY must discontinue any Work or services, unless otherwise directed in the notice, and deliver all materials accumulated in the performance of this Agreement, whether completed or in process, to the CITY. At such time the CITY shall first exercise the remedies as provided for in Schedule P(Alternative Dispute Resolution Procedures), thereafter, the CITY may invoke any or all of the following remedies: (a) The right to take over and complete the Work, or any part thereof; (b) The right to immediately terminate this Agreement as to any or all of the Work or other services yet to be performed by the COMPANY. (c) The right of specific performance, injunctive relief or any other appropriate equitable remedy, (d) The right to money damages; and (e) The right to withhold all or any part of the COMPANY's compensation hereunder, provided, however, subject to the CITY's exercise of its right to offset set forth in paragraph 11.5 hereof, the CITY shall pay the COMPANY any amounts, or pro-rata portions thereof, accrued pursuant to Schedule C, prior to and as of the date of the occurrence of the Event of Default,. If the CITY considers it to be in its best interests, it may elect not to declare default or to terminate this Agreement. The parties acknowledge that this provision is solely for the benefit of the CITY and that if the CITY permits the COMPANY to continue to perform the Work and other services despite one or more Events of Default, the COMPANY shall in no way be relieved of any of its responsibilities, duties, or obligations under this Agreement nor shall the CITY waive or relinquish any of its rights. The remedies available to the CITY and to the COMPANY under the terms of this Agreement are not intended to be exclusive of any other remedies provided, but each and every such remedy shall be cumulative and shall be in addition to any other remedies, existing now or hereafter, at law, in equity or by statute. No delay or omission to exercise any right or power accruing upon any Event of Default shall impair any such right or power nor shall it be construed as a waiver of any Event of Default or acquiescence therein, and every such right and power may be exercised from time to time and as often as may be deemed expedient. 20 Page 1361 of 1802 11.5 Right to Offset Any additional costs incurred by the CITY in the event of termination of this Agreement for default or otherwise resulting from the COMPANY's performance or non-performance under this Agreement, including the exercise by the CITY of any of the remedies available to it under paragraph 11.4 hereof, and any credits due to or overpayments made by the CITY may be offset by use of any payment due for the Work or other services completed before the termination for default or before the exercise of any remedies. If such amount offset is insufficient to cover such excess costs, the COMPANY shall be liable for and promptly remit to the CITY the difference upon written demand therefor. This right to offset is in addition to and not a limitation of any other remedies available to the CITY. Article 12: Representations and Warranties 12.1 Each party warrants and represents to the other that: (a) It has all requisite power, authority,licenses, permits, and franchises, corporate or otherwise, to execute and deliver this Agreement and perform its obligations hereunder; (b) Its execution, delivery, and performance of this Agreement have been duly authorized by, or are in accordance with, its organic instruments, and this Agreement has been duly executed and delivered for it by the signatories so authorized, and it constitutes its legal, valid, and binding obligation; (c) Its execution, delivery, and performance of this Agreement will not result in a breach or violation of, or constitute a default under, any agreement, lease or instrument to which it is a party or by which it or its properties may be bound or affected; and (d) It has not received any notice, nor to the best of its knowledge is there pending or threatened any notice, of any violation of any applicable laws, ordinances, regulations, rules, decrees, awards, permits or orders which would materially and adversely affect its ability to perform hereunder. 12.2 Representations and Warranties by the CITY The CITY hereby warrants and represents to the COMPANY that: (a) It will provide throughout the term of this Agreement (or cause its energy suppliers to furnish) to the COMPANY, upon its request, copies of all available records and data concerning energy usage for the Premises including but not limited to the following data: utility records and rate schedules; occupancy information; descriptions of any major changes in the structure or use of the buildings or heating, cooling, lighting or other systems or energy requirements; descriptions of all energy consuming or saving equipment used in the Premises; descriptions of energy management procedures presently utilized; and any prior energy analyses of the Premises. The CITY shall make knowledgeable employees and agents available for consultations and discussions with the COMPANY concerning energy usage of the Premises. (b) It has not entered into any leases, contracts, or agreements with other persons or entities regarding the leasing of energy efficiency equipment or the provision of energy management services for the Premises or with regard to servicing any of the energy related equipment located in the Premises. 12.3 Representations and Warranties by the Company The COMPANY represents and warrants the following to the CITY (in addition to the other representations and warranties contained in the Project Documents), as an inducement to the CITY to execute this Agreement,which 21 Page 1362 of 1802 representations and warranties shall survive the execution and delivery of this Agreement and the Final Completion of the Work. (a) That it is financially solvent, able to pay its debts as they mature and possessed of sufficient working capital to complete the Work and perform its obligations under this Agreement; (b) That it and each of its employees, agents and subcontractors of any tier is competent to perform its obligations under this Agreement; (c) That it is able to furnish the plant, tools, materials, supplies, equipment and labor required to complete the Work and perform its obligations hereunder and has sufficient experience and competence to do so; (d) That it is authorized to do business in the State of Florida and is properly licensed by all necessary governmental and public and quasi-public authorities having jurisdiction over it and over the Work and the Premises; (e) That its execution of this Agreement and its performance thereof is within its duly authorized powers;and (f) That its duly authorized representative has visited the Premises, familiarized itself with the local conditions under which the Work is to be performed; and correlated its observations with the requirements of the Project Documents. Article 13: Applicable Laws 13.1 Statutory and Regulatory Requirements All applicable Federal and State laws and the codes, rules and regulations of all authorities having jurisdiction over the performance of the Project shall apply to this Agreement throughout its term and they will be deemed to be included in this Agreement the same as though written herein in full. 13.2 Company's Failure to Comply with Statutory and Regulatory Requirements The COMPANY, and its subcontractors shall comply with all laws, rules, regulations, and codes applicable to performance of the Work and the maintenance, monitoring, and training services to be performed pursuant to Article 6. Except where expressly required by applicable laws and regulation, the CITY shall not be responsible for monitoring the COMPANY's compliance with any laws or regulations. When the COMPANY observes conflicting regulatory requirements, it shall notify the CITY in writing immediately. If the COMPANY performs any of the Work or other services required by this Agreement knowing or having reason to know that the Work or such services are in violation of such laws, rules and regulations, the COMPANY shall be responsible for all costs arising directly therefrom. Article 14: Right to Audit The CITY or its authorized representative shall have the right to have access to and audit all of the COMPANY's records, books, correspondence, instructions, drawings, receipts, vouchers, memoranda, and similar data relating specifically to the Work performed under this Agreement with advance written notice and during COMPANY's normal business hours. In addition,the CITY or its authorized representative shall have access to the COMPANY's Florida office subject to the same restrictions and shall be provided adequate and appropriate work space, in order to conduct an audit in compliance with this article with the understanding that as any such on-site visit may limit interference in normal daily activities of COMPANY's office staff, CITY shall make all reasonable effort to accomplish audit tasks as quickly and efficiently as possible, so as to allow COMPANY to return to its regular daily business routine. 22 Page 1363 of 1802 Article 15: Execution IN WITNESS WHEREOF, the Parties have executed this Energy Services Agreement by their authorized signatures as of this 25th day of May, 2010. THE CITY: THE COMPANY: Title: I.I$-4 0/L "V" ft S ✓w IV' LLA.0 1)OA.C (1.A.--- ATTEST .Lti •,ATTEST APPROVED AS TO FORM&LANGUAGE &FAR ECUTION C.- IZpl�b �, t 1 II Lk I / •••:.:,77, �: . Dots 23 Page 1364 of 1802 Schedule P Alternative Dispute Resolution (ADR) Language 1. All Disputes In the event any dispute or claim related to construction or the contracts should arise between any of the parties to this Agreement, each party agrees to exercise good faith efforts to resolve the matter fairly, amicably, and in a timely manner. The parties shall consider litigation as a last resort,to be employed only when ADR methods fail. To this end, the parties agree to take affirmative steps to communicate effectively, to keep lines of communication open, and to handle all disputes in a reasonable and businesslike manner, which may include the use of a dispute resolution board. 2. Mediation: Disputes under$50,000 Each party to any dispute under$50,000 agrees, upon the request of any other party to the dispute, to submit the matter to mediation in Miami-Dade County, Florida. The parties shall first confer informally with one another to attempt to resolve the dispute. The mediator shall be a person the parties agree is unbiased and qualified to understand the dispute and make the determinations that are required. 3. Methods of ADR: Disputes over$50,000 Each party to any dispute over $50,000 agrees, upon the request of any other party to the dispute, to submit the matter to ADR, in a form to be determined by agreement of the parties, but in a forum in Miami-Dade County, Florida. The partes shall first confer informally with one another to attempt to resolve the dispute. In the event that the assistance of an unbiased neutral is required, the parties shall meet and come to an agreement as to what form the ADR should take and who the unbiased neutral should be. Forms of ADR that may be utilized include, but are not limited to, mediation and mini-trials, but do not include formal arbitration. The unbiased neutral may be a professional mediator, an attorney, an architect, an engineer, a board composed of two (2)or more qualified persons, or any person(s) the parties agreed is unbiased and qualified to understand the dispute and make the determinations that may be required. 4. Authority When ADR is utilized, regardless of the dollar value of the dispute, each party agrees to have in attendance at their mediation (or whatever method is utilized)a person with actual authority to resolve the dispute. 5. Non-parties Persons who have a stake in the dispute but who are not parties to this Agreement may be included in the ADR by consent of the parties. When disputes arise between only persons Involved in the project who are not parties to this Agreement, the parties agree to encourage and facilitate the use of ADR when possible. 6. Court Claim The Company agrees that ADR is a condition precedent to the filing of an action or other administrative proceeding seeking economic recovery from CITY in an amount greater than $50,000. 7. Costs of ADR When ADR is utilized, the parties included in the process agree to equally share the costs of same. 24 Page 1365 of 1802 8. Appendices Any and all written agreements for mediation or other method of ADR must be agreed to by all contractual parties and shall be incorporated into the contract. CITY ACCEPTANCE INITIALS: DATE: 25 Page 1366 of 1802 Attachment A • Construction Process A.1 Construction Process A.1.1 Description of the Work The design, procurement, fabrication, installation and commissioning of the ECMs specified in Schedule A (Equipment to be Installed) and the training services described in Schedule J (Company Training Responsibilities), which are integral to the operation of the ECMs, are referred to in this Agreement as the 'Work." The maintenance, monitoring, and savings measurement and verification services detailed in Schedules G and 0 and the any Post-Acceptance Training services detailed in Schedule J (Company Training Responsibilities), performance of which does not commence until after the Commencement Date, are not part of the Work. A.1.2 Supervision of the Work The COMPANY shall supervise and direct the performance of the Work using its reasonable professional skill, attention, and judgment. The COMPANY shall be responsible for site safety and for all construction means, methods, techniques, sequences, and procedures and for coordinating all portions of the Work under this Agreement. A.1.3 Rejection of the Work by the CITY The CITY may reject any sequences or procedures proposed by the COMPANY in connection with the Work which might constitute or create a hazard to the Premises, or to persons or property, or which deviate from the Project Documents or will result in schedule delays or additional costs to the CITY. This provision shall not be construed to mean that Work which is not rejected is therefore approved. A.1.4 Responsibility for the Work The COMPANY shall not be relieved of its obligations to perform the Work in accordance with the Project Documents by reason of observations or inspections, tests or approvals by any person or entity except as expressly agreed to in writing by an authorized representative of the CITY. A1.5 Coordination of the Work The COMPANY shall consult with the personnel designated by the CITY in order to coordinate the Work, including installation of any ECM, and to provide appropriate training in the operation of any ECM. The COMPANY shall not permit any act that will interfere with the performance of the CITY's business activities at the Premises without the prior written approval of the CITY. The COMPANY may install no ECM that will require the hiring of additional personnel by the CITY without the express permission and written approval of the CITY. The COMPANY shall consult with the CITY regarding the coordination of the Work with any other work being performed by other Companies at the Premises. 26 Page 1367 of 1802 A.1.6 Sufficient Workforce The COMPANY shall furnish a competent and adequate staff as necessary for the proper administration, coordination and supervision of the Work; organize the procurement of all materials and equipment so that they will be available at the time they are needed for the Work; and ensure that an adequate force of skilled workmen are available to complete the Work in accordance with all requirements of this Agreement. A.1.7 Project Manager The COMPANY shall employ a competent project manager who shall be responsible for the coordination of the Work, and who shall be authorized to commit the COMPANY with regard to manpower. schedule, coordination, and cooperation. The project manager shall not have less than two years of documented experience in responsible field supervision for projects of comparable size and complexity. The COMPANY shall give the CITY advance written notice if it intends to remove or replace the project manager. In the event the project manager fails to perform its duties under this Agreement the COMPANY shall provide a competent replacement. A,1.8 Harm to Structure of the Premises The COMPANY shall perform the Work under this Agreement and install the ECMs in such a manner so as not to harm the structural integrity of the Premises or their operating systems, except as specifically described in the Project Documents which have been approved by the CITY. The COMPANY shall repair and restore to its condition immediately preceding the performance of the Work, any area of damage caused by its performance under this Agreement which has not been so described in the Project Documents and approved by the CITY. The COMPANY's failure to complete the repair or restoration required under this paragraph A.1.8 shall constitute an Event of Default under paragraph 11.3 hereof. A1.9 Responsibility for Damages The COMPANY shall be responsible for all loss or damage to the Work, the Premises, or to improvements or personal property thereon and the work of other companies caused by the COMPANY's performance of the Work. A.1.10Verification of Dimensions and Existing Conditions The COMPANY is responsible for becoming knowledgeable of the conditions of the Premises relating to the performance of the Work and the conditions under which the Work is to be performed, other than concealed conditions which the COMPANY should not have reasonably been expected to discover or anticipate. All discrepancies between the requirements of the Project Documents and the existing conditions or dimensions shall be reported to the CITY as soon as they are discovered. Failure to verify and report prior to the commencement of Work shall constitute the COMPANY's acceptance of existing conditions as fit for the proper execution of the Work under this Agreement, other than concealed conditions which the COMPANY should not have reasonably been expected to discover or anticipate. A.1.11 changed Conditions Should the COMPANY encounter subsurface or latent physical conditions at the site which differ materially from those indicated in the Project Documents or from those ordinarily encountered and generally recognized as inherent in work of the character provided for in this Agreement, the COMPANY shall give written notice to the CITY before any such condition is disturbed or further disturbed. No claim of the COMPANY under this provision will be allowed unless the COMPANY has given the required notice. The CITY will promptly investigate and, if it is determined that the conditions materially differ from those which COMPANY should reasonably have been expected to discover or anticipate, the CITY will approve such changes in the Project Documents as may be necessary. If such changed conditions cause an increase or decrease in the COMPANY's cost or time of performance, the parties may negotiate a mutually acceptable solution. 27 Page 1368 of 1802 A.1.12 Procurement Process for ECMs The CITY and the COMPANY shall work together to develop a procurement strategy for the Work which shall be acceptable to both parties and set forth in Schedule U (Procurement Strategy) to this Agreement. My savings attributable to the procurement and bid process shah inure to the benefit of the CITY. The COMPANY shall review all bid pricing with the CITY and in the event the COMPANY selects the lowest bid, or a bid within 5% of the lowest bid, the COMPANY may proceed with the respective subcontractor or subconsultant. In the event a bid which is in excess of 5% more than the lowest bid is desired by the COMPANY, before proceeding, the bid must first be reviewed and approved by the CITY. A.2 The CITY's Right to Carry-Out the Work In the event that the COMPANY neglects or fails to carry out the Work in accordance with this Agreement and the Project Documents, the CITY may correct such deficiencies after giving twenty (20) business days written notice to the COMPANY and its surety. This shall be without prejudice to any other remedy the CITY may have. CITY may deduct from the payments to be made to the COMPANY for the Work, pursuant to paragraph 6.1 hereof and of Schedule C (Compensation to Company), the amount of all costs incurred in correcting deficiencies made necessary by such neglect or failure. If such payments to be made to the COMPANY are not sufficient to cover such amount, the COMPANY shall be liable in such amount to the CITY. A.2.1 Emergencies In case of bona fide emergencies as determined by the CITY involving public health or public safety or to protect against further loss or damage to the CITY's property or to prevent or minimize serious disruption of CITY services or to insure the integrity of CITY's records, the CITY may cause such Work as is necessary to be performed without prior notice to the COMPANY or its surety. A.2.2 Right to Reject or Stop the Work The CITY may reject any of the Work which does not conform to the Project Documents. If the COMPANY fails to correct defective Work or fails to supply labor, materials or equipment in accordance with the Project Documents or to execute the Work in a workmanlike manner, the CITY may order the COMPANY to stop the Work,or any portion thereof, until the cause for such order has been eliminated. A.2.3 Right to Terminate the Company's Performance of the Work If the COMPANY fails or refuses to prosecute the Work with such diligence as to allow completion of the Work substantially in accordance with the Project Installation Schedule, or commits a material breach of any other provision of this Agreement or the Project Documents, and provided that such breach continues for thirty (30) days after written notice to the COMPANY demanding that such breach be cured or if cure cannot be effected in such thirty(30) days, COMPANY's failure to propose and commence a cure acceptable to the CITY within such thirty(30)days, the CITY may terminate the COMPANY's right to proceed with the Work as specified herein. In no event shall the CITY have any obligation to compensate the COMPANY for delays arising pursuant to the COMPANY's failure or refusal to complete the Work and damages arising in connection therewith. In such case, the CITY will give the COMPANY and its surety written notice of intention to terminate the COMPANY's right to complete the Work and the reason therefor and, unless within seven (7)business days the delay or violation shall cease or a cure acceptable to the CITY for correcting the situation is proposed, the CITY may issue a termination notice to such effect for the COMPANY and its surety. Thereupon, the surety will be given the opportunity to complete the Work in accordance with the Project Documents. Such completion may include, but not be limited to, the use of a completing company, satisfactory to the CITY, pursuant to a written takeover agreement, the payment of a sum of money required to allow the CITY to complete the Work, or other arrangements agreed to by the CITY and the surety. 28 Page 1369 of 1802 If within seven (7) business days following the issuance of the termination notice, the surety fails to notify the CITY that it intends to exercise its right to undertake the Work, the CITY may take over the Work, exclude the COMPANY from the Premises and take possession of all of the COMPANY's tools, appliances, equipment and machinery at the Premises and use the same to the full extent they could have been used by the COMPANY (without liability for trespass or conversion), incorporate into the Work all materials and equipment stored at the Premises and finish the Work as the CITY may deem expedient. In the event the CITY terminates the COMPANY's right to complete the Work under this paragraph A.2. the COMPANY shall not be entitled to receive further payments until a Certificate of Acceptance has been delivered pursuant to Article 7 hereof specifying the amount, if any, payable to the COMPANY pursuant to Schedule C (Compensation to Company). If the CITY's expenses in completing the Work exceed the COMPANY'S Compensation for the Work, the COMPANY shall pay the difference to the CITY upon demand therefor. Provided further, that a Certificate of Acceptance directing payment to the COMPANY for any portion of the Work be issued only if the notification required pursuant to Article 7 has been delivered by the COMPANY. If the COMPANY is not able to deliver such notification, the CITY shall not execute and deliver a Certificate of Acceptance and may terminate this Agreement in accordance with the provisions of Article 11 and may pursue any and all remedies provided therein. A.3 Permits and Approvals The COMPANY shall obtain and pay for all necessary permits and approvals for the design, installation and operation of the ECMs. The CITY shall exercise its best efforts to assist the COMPANY. The ECMs and the operation of the ECMs by the COMPANY shall at all times conform to all applicable codes. The CITY cannot and will not waive any permits or approvals required from any other governmental bodies. The COMPANY shall furnish copies of each permit or license which is required to perform the Work to the CITY before the COMPANY commences the portion of the Work requiring such permit or license. If the COMPANY observes that any of the Project Documents are at variance with permits or licenses granted, or laws,ordinances, codes, rules or regulations of governmental authorities,the COMPANY shall promptly notify the CITY in writing and shall make any necessary changes, subject to the approval thereof by the CITY in accordance with the terms of this Agreement. If the COMPANY performs any Work which is contrary to any permit or license granted, or any applicable laws, ordinances, codes, rules or regulations, the COMPANY shall make changes as required to comply therewith and shall bear all costs arising therefrom without additional compensation from the CITY. A.4 Royalties and Patents The COMPANY shall pay all royalties and license fees due to third parties in connection with the Work. The approval of any method of construction, invention, appliance, process, article, device, material, or equipment of any kind by the CITY will only be an approval of its adequacy for the Work,and will not be an approval of the use thereof by the COMPANY in violation of any Patents or other rights of any third person. The COMPANY shall indemnify the CITY against all suits and claims that may be based on an infringement of Patents, trademark or trademark on designs.A.5 Project Schedule The COMPANY shall consult with the CITY concerning the development of a detailed Project Installation Schedule and, recognizing that time is of the essence of this Agreement, shall perform the Work in such manner and with such sufficient equipment and forces to complete the Work in accordance with Schedule K (Project Installation Schedule). 29 Page 1370 of 1802 A.6 Extensions Extensions of time will be allowed for delays which affect critical items on the Project Installation Schedule arising from unforeseeable causes beyond the control and without the fault or negligence of the COMPANY. A request for an extension of time must be made in writing to the CITY within fifteen (15)calendar days after the cause of delay. In the case of a continuing cause of delay, only one request is necessary. The grant of an extension of time to the COMPANY shall not impair or prejudice the rights of the CITY hereunder. A.7 Compensation for Delay (a) Certain risks and uncertainties in connection with the Work are assumed by the COMPANY as a part of this Agreement and are included in the COMPANY Compensation for the Work. Thus, the COMPANY, except as otherwise definitely specified herein, shall bear all loss or damage for hindrances or delays during the progress of any portion of the Work and also all loss or damage arising out of the nature of the work to be done, or from inclement weather, or from any unforeseen and unexpected conditions or circumstances encountered in connection with the Work, and except as otherwise definitely specified in this Agreement, no payment shall be made by the CITY for such loss or damage. (b) The COMPANY shall be entitled to payment from the CITY only for those actual damages, costs, or expenses which are directly attributable to delays in the performance of the Work which are caused by the CITY. The CITY shall not be liable to the COMPANY for special, indirect, consequential or punitive damages, even if the CITY has been advised such damages are possible. A.8 Subcontracts and Subcontractors The COMPANY shall have the right to have any of the services to be provided by the COMPANY under this Agreement accomplished by subcontractors pursuant to written subcontracts between the COMPANY and such subcontractors. The COMPANY shall, upon entering into any agreement with a subcontractor, furnish the CITY with an executed copy thereof. All subcontracts shall be subject to, consistent with, and in conformance with all applicable State and federal laws, rules, regulations, and codes, and shall contain provisions that require all services to be performed in strict accordance with the requirements of this Agreement and shall provide that the subcontractors are subject to all the terms of this Agreement. Provided that such agreements do not prejudice any of the CITY's rights under this Agreement, such agreements may contain different provisions than are provided herein with respect to extensions of schedule, time of completion, payments, guarantees, and matters not affecting the quality of the Work. The COMPANY shall not grant, or allow to exist, any lien or security interest for labor or material or otherwise on the EOMs,the Premises or any other property owned by the CITY. AS Interim Savings; Procurement Savings and Utility Rebates Energy savings generated during the Interim Period, savings resulting from the procurement process set forth on Schedule U (Procurement Strategy)and utility rebates secured or obtained due to the installation of the ECMs at the Premises belong to the CITY. 30 Page 1371 of 1802 A.10 Hazardous Materials (a) The COMPANY acknowledges that compliance with the National Emission Standard for Hazardous Air Pollutants as promulgated by the United States Environmental Protection Agency pursuant to Section 112 of the Clean Air Act is a continuing obligation requiring any and all demolition or renovation activity completed by or on behalf of the CITY, to conform to the standards for such activity as set forth in 40 CFR 61.145. The COMPANY shall observe all notification procedures established by the United States and Florida Environmental Protection agencies in the execution of the Work under this Agreement. (b) The pertinent provisions of the Hazardous Substances Construction Disclosure Act, 415 ILCS 70/1, (the "Act") shall apply in the event that the COMPANY or any of its subcontractors encounters any hazardous substance or material covered by the Act in the performance of the Work, the existence of which has not previously been disclosed to the COMPANY by the CITY. The COMPANY shall, before disturbing such materials, immediately notify the CITY of the location thereof. The COMPANY shall advise the CITY as to whether it is feasible to re-route the Work as to avoid such materials. If such re-routing is reasonably feasible, the COMPANY shall do so without additional compensation hereunder. If such re-routing or avoidance is not reasonably feasible in the judgment of the CITY and such material must be disturbed or relocated to complete the Work, and if (i) removal or containment of the hazardous substance or material cannot be effectuated without a cessation of the Work; or(ii)applicable law, rule or regulation requires cessation of the Work, or (iii)continuation of the Work exposes any person to a substantial risk, the COMPANY may suspend its performance of the Work without penalty until the substance or material is removed or contained by the CITY. (c) The following options are available to the CITY in the event that undisclosed hazardous materials are encountered in the performance of the Work by the COMPANY or its subcontractors: (i) If feasible, the CITY may direct the COMPANY to modify the scope of the Work to eliminate portions of the Work affected by the undisclosed hazardous substance or material. (ii) The CITY may terminate this Agreement upon payment to the COMPANY of the amount due for services or materials and equipment supplied by the COMPANY prior to suspension of the Work, including damages caused by the delay. Provided, however, that the CITY shall not be liable for damages or other costs or expenses incurred by the COMPANY if the existence of the hazardous substance or material was disclosed to the COMPANY by the CITY or, if as a result of the COMPANY's review of the Project Documents, including any Asbestos Management Plan developed for the Premises and its investigation of the Premises, the COMPANY should reasonably have been expected to discover or anticipate the existence of the hazardous substance or material and the COMPANY could have developed the scope of the Work in such a manner as to avoid said hazardous substance or material. (d) The COMPANY and the CITY agree that any work relating to (i) asbestos, material containing asbestos, or the existence, use, detection, removal, containment or treatment thereof, or (ii) pollutants, hazardous wastes, hazardous materials, contaminants (collectively "Hazardous Materials") or the storage, handling, use, transportation, treatment or the disposal, discharge, leakage, detection removal,or containment thereof which is not specifically provided for in this Agreement, is the responsibility of the CITY. Notwithstanding the foregoing, the COMPANY will utilize due diligence in order to determine whether the Work will require the removal of PCB ballasts and whether asbestos is likely to be encountered in the performance of the Work. COMPANY shall provide the CITY with an estimate for the cost of removal and disposition of PCB ballasts and asbestos it expects may be encountered in the performance of the Work.. If an Asbestos Management Plan has been developed for the Premises, the CITY shall make said plan available for the COMPANY'S review and inspection throughout the Interim Period. 31 Page 1372 of 1802 A.11 Material and Workmanship (a) The COMPANY shall ensure that all materials used by the COMPANY and its subcontractors and workmanship performed or caused to be performed by the COMPANY in connection with the Work meets or exceeds all applicable codes and is performed in a workmanlike manner. Where conflicts exist between applicable codes,the more stringent provision shall apply; (b) The COMPANY shall ensure that all equipment and materials to be used in the Work for which Underwriters Laboratory labeling services is provided shall be UL labeled; (c) The COMPANY shall obey the following list of codes where applicable: (1) Applicable construction and electrical code; (2) Underwriters Laboratories(UL); (3) Insulated Power Cable Engineers Association (IPCEA); (4) National Electrical Code(NEC); (5) National Electrical Manufacturers Association (NEMA); (6) American National Standards Institute(ANSI); and (7) Institute of Electrical and Electronic Engineers(IEEE). (d) The COMPANY shall timely advise the CITY in writing of all existing equipment and materials to be replaced at the Premises as part of the Work and the CITY shall within ten(10)days designate in writing to the COMPANY the equipment and materials which should not be disposed of off-site by the COMPANY. The COMPANY shall be responsible for the disposal of all equipment and materials removed or replaced through its performance of the Work in accordance with all applicable laws and regulations regarding such disposal, except those items designated by the CITY as nondisposable. The cost of disposal to be performed by the COMPANY is included in the COMPANY compensation for the Work set forth in Schedule C (Compensation to Company). A.12 Warranty of Materials The COMPANY warrants that all materials and equipment installed as part of the Work will be new unless otherwise specified, and that all work will be of good quality, free from faults and defects, and in conformance with the Project Documents. All work not so conforming to these requirements may be considered defective. If required by the CITY, the COMPANY shall furnish satisfactory evidence as to the kind and quality of materials and equipment. This warranty is not limited by the provisions of paragraph 8.1 of the Agreement. This warranty of materials, equipment and workmanship is separate from, independent of, and in addition to any other guarantees in this Agreement or any other warranties in this Agreement or required by the Project Documents. A.13 Responsibility for Materials The CITY does not assume any responsibility for the availability of any controlled materials or other materials and equipment required for the Work. However, the CITY reserves the right to review and approve the quality and standards for all materials pursuant to the ECM Submittal review process set forth in Articles 2.2 and 2.3 of the Agreement. The COMPANY shall be responsible for the contracted quality and standards of all materials, components or completed Work furnished by the COMPANY pursuant to the terms hereof. Materials, components or completed Work which fails to comply with this Agreement and the Project Documents may be rejected by the CITY and shall be replaced by the COMPANY at no cost to the CITY. The COMPANY shall remove from the Premises within a reasonable time any materials or components so rejected at the entire expense of the COMPANY, after written notice has been delivered by the CITY to the COMPANY that such materials or components have been rejected. (Optional) A.14 inspections (a) All materials and equipment and each part of the detail of the Work shall be subject at all times to inspection by the CITY or its designated representatives or consultants, and the COMPANY will be held strictly to the true 32 Page 1373 of 1802 intent of this Agreement and the Project Documents with regard to quality of materials, workmanship, and the diligent execution of the Work. (b) The COMPANY shall allow the CITY access to all parts of the Work, and shall furnish such information and assistance as is required to make a complete and detailed inspection or inspections. (c) All material and equipment installed as part of the Work must be inspected, tested and approved in accordance with the Project Documents and this Agreement prior to its use. (d) The COMPANY shall, if the CITY requests, remove or uncover such portions of the finished Work as the CITY may direct. After the examination, the COMPANY shall restore said portion of the Work to the standard required by this Agreement and the Project Documents. If the Work thus exposed or examined proves acceptable, the expenses of uncovering or removing and the replacing of the parts removed shall be the responsibility of the CITY and such uncovering, removing and replacing shall be deemed to be an excusable event of delay, if a delay in completion is caused thereby. If the Work so exposed or examined has not been performed in accordance with the Project Documents, the expense of uncovering, removing and replacing any portion of the Work necessary to comply with this Agreement and the Project Documents shall be borne by the COMPANY and requests for a time extension or claims for delay will not be granted. (e) Upon completion of each individual ECM in each respective facility, COMPANY will provide to CITY a Notice of Substantial Completion (see Exhibit II (iii) indicating that such ECM is substantially complete and is ready to be inspected. CITY shall schedule preliminary inspections of the Work within twenty (20) calendar days of receipt of such Notice of Substantial Completion. If such Work is not acceptable to the CITY at the time of such preliminary inspections, the COMPANY will be provided written notice (a "Punchlist") as to the particular defects to be remedied before the Work will be accepted. COMPANY will work diligently to correct all defects noted by CITY during such preliminary inspection, and will provide CITY with a second Notice of Substantial Completion once all such defects have been so corrected. CITY shall schedule a follow-up inspection of the Work within ten (10) business days of receipt of this second Notice of Substantial Completion. This inspection process will continue until all such defects have been corrected to the CITY's satisfaction. The date such Work is approved by the CITY, as evidenced by an accepted Notice of Substantial Completion for such Work, shall also be the date of beneficial use to the CITY for the applicable ECM, for purposes of commencement of the warranty period set forth in Article 8.1 of the Agreement and in Schedule R(Warranties)for such ECM. Notwithstanding the foregoing, no Final Certificate of Acceptance (see Exhibit 110) shall be executed until a final inspection has been performed, and the CITY has accepted the installation and operation of the particular ECM, and the COMPANY has complied with all required acceptance submittals, as provided in Article 7.2 of the Agreement A.15 Project Meetings The COMPANY shall provide for regularly scheduled project meetings in the Project Installation Schedule, and shall give timely advance written notice and agenda of such meetings to the CITY. The COMPANY shall record minutes and distribute copies of minutes of meetings to the CITY within five (5) business days after each meeting. The COMPANY shall schedule additional project meetings if requested by the CITY. A.16 Assignment of Claims The CITY shall not be bound by any assignment by the COMPANY to third parties of moneys due or to become due or of any other claims it may have under this Agreement except where the CITY consents in writing to be so bound such consent not to be unreasonably withheld conditioned or delayed. 33 Page 1374 of 1802 A.17 Claims and Disputes The COMPANY shall promptly notify the CITY in writing of any claims or disputes relating to the Work. Failure to notify the CITY in such instances may result in rejection of any such claim. 34 Page 1375 of 1802 EXHIBIT I PAYMENT AND PERFORMANCE BONDS TO BE PROVIDED AT CLOSING 35 Page 1376 of 1802 EXHIBIT H(i) CERTIFICATE OF ACCEPTANCE ENERGY AUDIT REPORT [PLACE ON CITY LETTERHEAD] Mr.John L.Bosch Vice President Ameresco,Inc. 2202 N. West Shore Blvd. Tampa,FL 33602 Re: Detailed Energy Audit Report dated as of September 8, 2009 provided to The City of Miami Beach("CITY')by Ameresco,Inc. ("Ameresco") Dear Mr.Bosch: CITY hereby aclmowledges its receipt and acceptance of the Detailed Energy Audit Report referenced in the Energy Services Agreement dated May 25, 2010. Sincerely, The City of Miami Beach By: Duly Authorized Signatory Name: Title: Date accepted: 36 Page 1377 of 1802 EXHIBIT II(ii) CERTIFICATE OF ACCEPTANCE ENERGY CONSERVATION MEASURES [PLACE ON CITY LETTERHEAD] Mr. John L.Bosch Vice President Ameresco,Inc. 2202 N. West Shore Blvd. Tampa,FL 33602 Re: Energy Services Agreement (the "ESA"; capitalized terms used and not defined herein shall have the meanings given to such terms in the ESA)dated as of May 25, , 2010 by and between the City of Miami Beach("CITY')and Ameresco, Inc. ("Ameresco") Dear Mr. Bosch: The CITY hereby acknowledges its receipt and acceptance of all ECMs described in Schedule A of the ESA which are installed and in good working condition. Sincerely, The City of Miami Beach By: Duly Authorized Signatory Name: Title: Date accepted: 37 Page 1378 of 1802 EXHIBIT II (111) NOTICE OF SUBSTANTIAL COMPLETION PROJECT NAME&ADDRESS: PROJECT NO.: CONTRACT DATE: DESCRIPTION: The installation of Hist each ECM being accepted with this certificate]under the ESA as defined below has/have been reviewed and found to be substantially complete. The date of Substantial Completion of the forgoing ECM(s)is hereby established as: SUBSTANTIAL COMPLETION DATE: The date of Substantial Completion of an ECM is the date certified by CITY when such ECM is sufficiently complete in accordance with the Agreement so that CITY derives beneficial use thereof. The Substantial Completion date set forth above is the date of commencement of applicable warranties for such ECM(s), as required by the Energy Services Agreement dated May 25,2010. A list of items to be completed or corrected is identified below as punchlist items. The failure to include any items on such punchlist does not alter the responsibility of Ameresco to complete all Work in accordance with the Agreement. CONTRACTOR: Ameresco,Inc.,2202 N.West Shore Blvd.,Tampa,FL 33602 AUTHORIZED SIGNATURE: DATE: NAME: (type or print) CITY: CITY IADDRESS[ AUTHORIZED SIGNATURE: DATE: NAME: (type or print) PUNCHLIST ITEMS Attach additional page(s)as necessary. Number of pages attached 38 Page 1379 of 1802 EXHIBIT II (iv) NOTICE OF FINAL COMPLETION ENERGY CONSERVATION MEASURES [PLACE ON AMERESCO LETTERHEAD] Mr. Title City of Miami Beach 1700 Convention Center Drive Miami Beach,FL 33139 Re: Energy Services Agreement (the "ESA"; capitalized terms used and not defined herein shall have the meanings given to such terms in the ESA) dated as of May 25, 2010 by and between the City of Miami Beach("CITY')and Ameresco, Inc.("Ameresco") Dear Mr. Ameresco hereby certifies to CITY that(i)it has completed the installation and commissioning and commenced operating all of the Energy Conservation Measures ("ECMs")specified in Schedule A(Equipment to be Installed); (ii)no Event of Default under Article 11 exists; (iii)the Energy Savings Guaranty set forth in Schedule B (Energy Savings Guaranty) is in full force and effect; and (iv)the CITY has inspected and accepted said installation and operation as evidenced by the Certification of Acceptance as set forth in Exhibit II (ii). Sincerely, AMERESCO By: Name:_John L.Bosch Title:_Vice President Date of Notice: 39 Page 1380 of 1802 DRAFT 5-5-10 EXHIBIT III EQUIPMENT WARRANTIES TO BE PROVIDED UPON COMPLETION OF CONSTRUCTION, PER SCHEDULE R. Page 13811 of 1802 EXHIBIT IV NOTICE TO PROCEED PLACE ON CITY LETTERHEAD] Mr.John L. Bosch Vice President Ameresco, Inc. 2202 N.West Shore Blvd. Tampa,FL 33602 SUBJECT: NOTICE TO PROCEED Dear Mr.Bosch: In accordance with Section 4.2 and Schedule C of the Energy Services Agreement(the"ESA") dated as of May 25,2010,by and between the City of Miami Beach("CITY')and Ameresco,Inc. ("COMPANY"),CITY hereby submits to COMPANY this Notice to Proceed in relation to the Scope of Services as defined in the ESA. Sincerely, City of Miami Beach By: Duly Authorized Signatory Name: Title: Date: Page 1382 of 1802 MIAMIBEACH City of Miami Beach, 1700 Convention Censer Drive,Miami Beach,Florida 3 139,vmw.m'•mibeachfl.gov Office of Internal Audit Tel:3056737020 TO: Jimmy L. Morales, City Manager FROM: James J. Sutter, Internal Auditor MC r DATE: September 28, 2017 SUBJECT: Ameresco Inc.—Annual Reconciliation Reports Review PERIOD(S): October 1, 2012 —September30, 2016 (Power Consumption) January 1, 2011 —December 31, 2016 (Water Consumption) This report is the result of a Property Management Department request to review the four (4) Annual Reconciliation Reports (ARRs) submitted by Ameresco Inc. to date under their signed Energy Service Agreement with the City and to determine whether power and water savings when compared to the baseline are being realized. INTRODUCTION Ameresco Inc. (Ameresco) was founded in 2000 with the stated objective of providing energy efficiency and renewable energy solutions according to their website. On August 12, 2008 the City and Ameresco signed an Energy Audit Agreement to assess City owned and operated buildings to identify projections of energy and potential cost savings as a result of the installation of recommended energy conservation measures which consisted of more energy efficient devices and appliances, as well as the feasibility of implementing alternate energy generation projects. The Energy Audit Agreement would also help to develop an annual average consumption base to be used as comparison baseline in the Annual Reconciliation Reports or ARRs. On May 25, 2010 the Energy Service Agreement was adopted whereby Ameresco was to design, procure, fabricate, and install specified Energy Conservation Measures (ECMs) and provide training, commissioning, maintenance and monitoring. The related capital improvements were procured between July 2010 and September 2012 at a cost of $13,697,733.97 and they were classified into the following six ECMs: • ECM-1 Facility Lighting Upgrades - Installing energy efficient lights and fixtures. • ECM-3 Domestic Water Conservation - Installing water efficient toilets, faucets, showerheads, sinks, ice machines, laundry facilities, etc. to reduce their consumption levels. • ECM-5 HVAC Controls — (HVAC = Heating Ventilation 8 Air Conditioning) Installing new thermostats, controllers, sensors, low leak dampers, etc. that will be linked into one (1) energy management system and upgraded so that building monitoring and controls are more easily undertaken and energy conservation is achieved as a result. • ECM-6 District Cooling Plant — New optimization panels and software, valves, water pumps, etc to provide a geothermal source to enhance the efficiency of the cooling plant and to expand the cooling system to incorporate the distribution of chilled water to City Hall, the new multi-purpose City garage and eventually the 777 Building. We are committed to paldtng excellent public service Olga Fe 30Ns8 4,orc ploy in an vSWani,tropical.hlsbt canmantry Internal Audit Memorandum Ameresco Inc.— Report Review Years 1 Through 4 September 28, 2017 • ECM-7 Geothermal Cooling - Police - New heat exchangers, valves, pumps, etc. to increase the efficiency of the Police Department chilling mechanism thereby reducing energy consumption. • ECM-10 Transformer Replacement- Replace to more efficient dry power transformers. Exhibit C of the Energy Service Agreement also stipulates that by the issuance of the Final Delivery and Acceptance Certificate which represents capital improvement project conclusion that the City is to remit an annual fee for maintenance savings measurement and verification, and post-acceptance training services. As a result, the City was to remit thirteen annual service and maintenance payments starting at $81,770 and increasing by 3% per year for a potential total of $1,277,069. By this report's date, service and maintenance fees of$338,168 were paid as shown in the table below: Year Fiscal Year Check# Check Date Amount 1 10/01/12-09/30/13 355079 01/07/2014 $ 81,771 2 10/01/13-09/30/14 372861 03/31/2015 84,223 3* 10/01/14—09/30/15 384415 12/22/2015 84,848 4 10/01/15—09/30/16 413876 05/11/2017 87.326 Total $338,168 • Amendment #1 to the Energy Service Agreement was entered into on March 4, 2016 which among other items modified ECM-6 as Ameresco was to decommission the Geothermal System at its sole cost and expense so the maintenance charges were reduced starting in year 3 plus year 13's payment was deleted. A listing of the updated service and maintenance fees for the duration of the agreement can be found in Exhibit D of Amendment #1. The City is contractually obligated to remit an additional eight (8) payments totaling an additional $799,836 over the remaining years of the Energy Service Agreement assuming that the savings objectives were satisfied. According to information provided by one of their Operations Managers, Ameresco has measurement verification protocol that includes the use of statistical sampling techniques for baseline measurement and post-installation measurements of wattage per fixture to determine total energy savings. Ameresco guarantees savings in power, water, and operation and maintenance up to a certain amount each year and in the event of failure to achieve those savings, they will pay the City the difference between the annual amount guaranteed and the actual annual energy and operating cost savings achieved at the premises. All savings related totals to date have been based on assessments made by Ameresco which are recorded in their ARRs filed annually and they have received all the designated service and maintenance fees specified in the signed agreements and amendments. PURPOSE The purpose of this review is to determine whether monies spent in the Energy Service Agreement resulted in the City having lower annual power and water consumption for the tested locations and whether accurate Annual Reconciliation Reports were submitted reflecting the City's consumption trends. SCOPE Analyze historic actual consumption data obtained from Florida Power & Light and the City's Financial System for the selected City owned and operated buildings which were subsequently Page 2 of 5 Page 1384 of 1802 Internal Audit Memorandum Ameresco Inc. -Report Review Years 1 Through 4 September 28, 2017 compared to the corresponding data listed in Ameresco Inc.'s submitted Annual Reconciliation Reports. ANALYSIS PERFORMED Ameresco Inc. (Ameresco) properly filed the four (4) Annual Reconciliation Reports (ARRs) required to date under their signed Energy Service Agreement with the City. These ARRs estimate the power and water savings for City owned properties during each October through September fiscal year based on capital improvements costing $13,697,733.97 procured between July 2010 and September 2012. Internal Audit requested on several occasions the supporting documentation for the figures reported in these ARRs but Ameresco only furnished an Excel spreadsheet devoid of formulas which was not helpful. Attempts to compare Ameresco's estimated savings to the actual consumption figures obtained from Florida Power & Light (FPL) and the City's Financial System for the audit period were largely unsuccessful due to different reporting formats. Ameresco uses statistical sampling techniques to reach their totals rather than actual consumption. Furthermore, there may be unknown variables which could affect the consumption rates (building modifications, reduced/extended hours of operation, missing meter information, etc.) that would have to be reviewed individually to determine their existence. Lastly, Hurricane Irma impacted the South Florida area in September 2017 and made it difficult to attain additional information as FPL and Public Works Department employees' time was focused on other more important tasks. Given these facts, Internal Audit could not determine whether the power and water consumption savings actually exceeded the associated costs of the capital improvements ($13,697,733.97) plus the annual service and maintenance payments designated in the Energy Service Agreement and amendment #1 ($1,138,004 = $338,168 paid to date + $799,836 potentially owed during the next eight years). Although other testing was conducted and their results are presented below and in the exhibits located at the end of this report, our primary objective was to obtain and analyze the consumption information for each selected location (26 for power and 24 for water) to help the Property Management Department Administration identify trends so that they could take any needed corrective actions. The following summarized tests were performed which produced the listed results: For power consumption analysis From a total population of 52 City owned and operated locations, 26 were selected for analysis whose power consumption totals were available in each of the four yearly ARRs. Upon request, FPL provided five (5) years of data, which was sorted by fiscal year (October 1st - September 30th) to match Ameresco's ARR's approach. Although both kilowatts per hour (kWh) and dollars were requested, FPL only provided kWh so any noted power differences could not be quantified as the corresponding rate was not constant since it increased as the property's consumption increased. Exhibit A contains a comparison of these 26 locations actual power consumption for the 2012/13, 2013/14, 2014/15 and 2015/16 fiscal years with Ameresco's calculated 2006 through 2008 baseline consumption. The calculated baseline for each of the locations listed in the Energy Service Audit measured the amount of consumption prior to the capital improvements and served as the benchmark to measure future potential savings. Testing found that the actual power consumption was higher than the baseline in 42 (9 in 2012/13, 10 in 2013/14, 11 in 2014/15 and 12 in 2015/16) of the 104 (26 locations x 4 years) instances tested or 40.38% of Page 3 of 5 Page 1385 of 1802 Internal Audit Memorandum Ameresco Inc. —Report Review Years 1 Through 4 September 28, 2017 the time. In addition, an analysis of the 26 locations actual power consumption was completed by fiscal year as shown in Exhibit B. The resulting linear trend analysis performed on an annual basis found that five (5) locations power consumption usage remained steady or 19% as the calculated slope fell within the +.01 and -.01 range. Of the remaining 21 locations, there was an upward trend indicating that more power was consumed than in the baseline for ten (10) or 39% locations and a downward consumption trend meaning less power was consumed for the remaining eleven (11) locations or 42%. These slope differences ranged from a maximum upward trend of .182 for the Bayshore Maintenance building located at 2800 North Meridian Avenue to a (.192) downward trend for the Recreation Center formerly located at 2100 Washington Avenue. Meanwhile, Exhibit C initially computes the variances or change in power consumption from the prior year for the data obtained from FPL and Ameresco for the same periods. These variances are netted together to determine the combined variance which was found to exceed 3% in 44 of the 78 tested calculations or 56% of the time which supports our earlier conclusion that Ameresco uses statistical sampling techniques to reach their totals rather than actual consumption. Schedule D calculates the percentage difference between FPL's actual power consumption and the projected cost savings reported annually by location in Ameresco's ARRs. It was determined that the corresponding difference exceeded 3% for 52 of the 104 tested transactions or 50%. Schedule El through E26 provides a dashboard of each tested location's power consumption during the audit period by fiscal year. The supporting Excel pivot tables that drive these calculations were given to Property Management Department Administration so that they can continue this analysis going forward. This process will facilitate their monitoring especially since the consumption process is currently decentralized with various City departments/divisions authorizing FPL payments (Parks and Recreation, Fire, etc.). For water consumption analysis Unlike power, water savings were not itemized by location in the submitted ARRs, as they were instead presented globalized in a breakdown entitled "Domestic Water Conservation". Although no individual comparisons were possible, requests were made to the City's Public Works Department for a listing of the meters that supply water to the 26 sampled power locations. Two (2) locations had to be excluded because no data was provided concerning their water consumption prior Hurricane Irma's landfall in South Florida since the Public Works Department's resources were focused on recovery efforts. Finally, Fire Station #2 and Fire Station Maintenance Facility were bundled together as no information could be obtained to segregate their water usage. Based on the data received from the Public Works Department, the relevant meters actual consumption was then captured from the City's Financial System (keeping calendar year sorting) and entered into Excel pivot tables to facilitate analysis. As a result, testing focused on whether the actual water consumption remained steady, increased or decreased during the six year audit period as shown in Exhibit F. The resulting linear trend analysis performed on an annual basis found that one (1) location's usage remained steady or 4% as the water consumption's calculated slope during the reviewed fiscal years fell within the +.01 and -.01 range. Of the remaining locations, there was an upward trend indicating that more water was Page 4 of 5 Page 1386 of 1802 Internal Audit Memorandum Ameresco Inc. —Report Review Years 1 Through 4 September 28, 2017 consumed than in the baseline for thirteen (13) locations or 57% and a downward consumption trend meaning less power was consumed for the remaining nine (9) locations or 39%. Lastly, Exhibits G1 through G23 provide a dashboard of each tested location's water consumption during the audit period by fiscal year. The supporting Excel pivot tables that drive these calculations were given to Property Management Department Administration so that they can continue this analysis going forward to facilitate monitoring. JJS:MC:NB Review performed by Assistant Internal Auditor Mark Coolidge and Senior Auditor Norman Blaiotta F\OBPI\$AUD\INTERNAL AUDIT FILES\DOC16-17\REPORTS-FINAL\Ameresco Draft Report 09-28-17.docx cc: Mark Taxis, Assistant City Manager Eric Carpenter, Assistant City Manager Adrian Morales, Property Management Division Director John Woodruff, Chief Financial Officer Pane 5 of 5 Page 1387 of 1802 FPL Data-Ameresco Baseline Comparison Table Exhibit:A Total kWh per Fiscal Year(FPL) Fiscal Year(Oct 1 through Sept 30) Test 1•Is Any of the FPL's Yearly kWh Tota Higher Than the Baseline Amount? Locations Baseline(See note 2013 2014 2015 2016 Bayshore Maintenance Building 91,069 54,310 62,921 IMI1,844 X613 yes City Hall 2,815,309 1,440,720 1,493,880 1,495,440 1,474,080 No Colony Theater 800,520 703,200 788,880 1,840 -8,480 Comfort Facility 14,458533 732 MA 6,193 . ,924 Yes Convention Center 18,421,360 6,509,120 6,242,752 6,442,892 6,355,360 NO Crespi Recreation Center 6,610 185 1111111111111111697,697 u,079 1 ,943 Yes Fairway Park Recreation Center 10,380Ill 714 11111111111111,643 WA,115 111111111t916 Yes Fire Station 81 242,370 ' ,420 ^1720 '62,020 ^3,960 Yes Fire Station 82 458,723 ,360 ,920 672,060 -) 48,980 Yes Fire Station 83 201,102 191,760 '111111110111k1,660 35,820 .227,280 Yes Fire Station Maintenance Facility 121,135 91,812 103,562 104,227 102,346 No Mechanical Maintenance/Sanitation 607,920 494,520 474,360 458,280 446,640 No Muss Park Recreation Center 10,210 "It709 411111111111,041 2,310 10,090 Yes North Shore Community Center 150,009 115,855 112,378 123,987 117,425 No Office Building(777) 742,880 680,320 687,360 728,640 665,120 No Old City Hall 212,263 '781 ,840 11111111111180 1,012 Yes Parks Division,Nursery 114,101 *173 - "!0,228 111,462 9,870 Yes Police Athletic League 461,565 288,720 352,440 384,540 345,36. No Police Station 3,270,840 3,256,560 3,111,600 3,001,680 2,987,760 No Recreation Center(21 Street) 339,120 121,920 139,800 142,800 29,52. No Sallport/Police Substation 387,042 53,152 62,319 61,294 69,128 No South Shore Community Center 516,360 487,080 470,880 421,200 383,52. No Stillwater Park Recreation Center 19,930 9,995 9,016 12,092 10,828 No Tatum Park Recreation Center 14,864 10,983 8,271 13,982 ',111111111111115. yes VCA Building(555) 419,840 allf r,000 /111111111111111,440 23,120 1,280 Yes Youth Center(Scott Rakow) 2,563,440 1,902,000 1,780,560 1,576,560 1,674,240 No Test 2 9 10 11 12 Total: 26 Locations per year with consumption higher than baseline: Percentage obtained by adding the 42 highlighted years %of locations per year with consumption higher tl 40% (9+10+11+12)which represent those with higher consumption t baseline(%of highlighted) baseline and dividing it by the total locations multiplied by the f. ears anal:ed 104 26 x 4. Test 1 Summary Note:Baseline amount is the Ameresco calculated consumption Count % average for the years 2006 through 2008 for each listed location Yes 13 50% No 13 50% Total 26 100% Page 1388 of 1802 Trend Analysis Summary Table-FPL Data Only Exhibit:B Total kWh per Fiscal Year(FPL) Fiscal Year(Oct 1st through Sept 30th) Locations 2013 2014 2015 2016 Slope Trend Bayshore Maintenance Building 54,310 62,921 91,844 113,613 0.182 Upward City Hall 1,440,720 1,493,880 1,495,440 1,474,080 0.007 Steady Colony Theater 703,200 788,880 885,840 888,480 0.073 Upward Comfort Facility 31,533 29,732 26,193 16,924 (0.150) Convention Center 6,509,120 6,242,752 6,442,892 6,355,360 (0.004) Steady Crespi Recreation Center 10,185 10,697 10,079 7,943 (0.069) Downward Fairway Park Recreation Center 50,714 47,843 53,115 62,916 0.067 Upward Fire Station#1 261,420 264,720 262,020 243,960 (0.021) Downward Fire Station#2 828,360 682,920 672,060 748,980 (0.030) Downward Fire Station#3 191,760 201,660 215,820 227,280 0.053 Upward Fire Station Maintenance Facility 91,812 103,562 104,227 102,346 0.031 Upward Mechanical Maintenance/Sanitation 494,520 474,360 458,280 446,640 (0.032) Downward Muss Park Recreation Center 10,709 18,041 12,310 10,090 (0.042) Downward North Shore Community Center 115,855 112,378 123,987 117,425 0.013 Upward Office Building(777) 680,320 687,360 728,640 665,120 (0.001) Steady Old City Hall 332,781 337,840 323,880 344,012 0.006 Steady Parks Division,Nursery 116,973 130,228 111,462 119,870 (0.008) Steady Police Athletic League 288,720 352,440 384,540 345,360 0.053 Upward Police Station 3,256,560 3,111,600 3,001,680 2,987,760 (0.028) Downward Recreation Center(21 Street) 121,920 139,800 142,800 29,520 (0.192) Downward Sailport/Police Substation 53,152 62,319 61,294 69,128 0.068 Upward South Shore Community Center 487,080 470,880 421,200 383,520 (0.074) Downward Stillwater Park Recreation Center 9,995 9,016 12,092 10,828 0.046 Upward Tatum Park Recreation Center 10,983 8,271 13,982 17,450 0.144 Upward VCA Building(555) 576,000 511,440 423,120 434,280 (0.089) Downward Youth Center(Scott Rakow) 1,902,000 1,780,560 1,576,560 1,674,240 (0.047) Downward Total: 26 Trend Count % Upward 10 30% Downward Steady 5 19% Total 26 100% Note 1:Slope was calculated through Excel's regression analysis formula,SLOPE(Total kWh consumption,Year).Slopes within+0.01 and-0.01 range are considered steady.For all other slopes,positive numbers represent upward trends and negative numbers"( )"represent downward trends Page 1389 of 1802 Yearly Variance Summary Table Exhibit:C C is Ameresco's Variance Overstated A B Percentage Points Difference When Compared to FPL?(Apply for Location/Fiscal Year Variance from Previous Year in Variance from Previous Year In% iiillalic (FPL) (Ameresco) Between FPL and Ameresco Differences Over+/-3 Percentage Variances(A-B) Points) Bayshore Maintenance Building ` 2013 2014 15.86% •3.97`::. 19.83 Yes 2015 45.97% 16.34% 29.63 Yes 2016 23.70% 10.78% 12.92 Yes City Hall 2013 2014 3.69% 1.84% 1.85 u o 2015 0.10% -5.33% 5.43 Yes 2016 •1.43% 7.10% -8.52 Yes Colony Theater 2013 2014 12.18% 14.56% -2.37 No 2015 12.29% 13.01% -0.72 No 2016 0.30% -1.74% 2.03 No Comfort Fadlity 2013 2014 -5.71% -11.31% 5.60 Yes 2015 -11.90% -19.42% 7.52 Yes 2016 -35.39% -29.83% -5.56 Yes Convention Center 2013 2014 -4.09% -8.81% 4.72 Yes 2015 3.21% -0.56'% 3.76 Yes 2016 •1.36% .0.49% -0.87 No Crespl Recreation Center 2013 2014 5.03% 5.03% 0.00 No 2015 -5.78% -20.37% 14.59 Yes 2016 -21.19% •15.51% -5.68 Yes Fairway Park Recreation Center 2013 2014 -5.66% -6.58% 0.92 No 2015 11.02% 5.16% 5.86 Yes 2016 18.45% 25.90% -7.45 Yes Fire Stational 2013 2014 1.26% 1.36% -0.10 No 2015 -1.02% -0.98% -0.04 No 2016 4.8996 -7.73% 0.83 No Fire Station a2 2013 2014 -17.56% -4.39% -13.17 Yes 2015 -1.59% .8.36% 6.77 Yes 2016 11.45% 2.28% 9.17 Yes Fire Station a3 2013 2014 5.16% -0.69% 5.85 Yes 2015 7.02% 0.55% 6.47 Yes 2016 5.31% 6.36% -1.05 No Fire Station Maintenance Facility 2013 2014 12.80% 15.25% -2.45 No 2015 0.64% -12.76% 13.40 2016 -1.80% 14.13% -15.93 s:•nYFNM"Xk' Mechanical Maintenance/Sanitation 2013 2014 -4.08% -30.33% 26.25 '''MftBifirt,Oa,-- 2015 -3.39% -4.42% 1.03 No 2016 -2.54% -3.35% 0.81 No Muss Park Recreation Center 2013 2014 68.47% 47.56% 20.91 Yes "',e 2015 -31.77% -35.50% 3.73 Yes 2016 -18.03% -12.57% -5.46 Yes North Shore Community Center 2013 2014 •3.00% 1.84% -4.84 Yes 2015 10.33% -16.24% 26.57 Yes 2016 -5.29% 7.36% -12.65 Yes Office Building(777) 2013 2014 1.03% 1.71% 0.r:1 No Page 1390 of 1802 C Is Ameresco's Variance Overstated A B Percentage Points Difference When Compared to FPL?(Apply for Location/Fiscal Year Variance from Previous Year in Variance from Previous Year in% . �••- Between FPL and Ameresco Differences Over*/.3 Percentage (FPL) (Ameresco) Variances(A-B) Points) 2015 6.01% 4.56% 1 45 No 2016 -8.72"%- 5.08% le Old Oty Hall 2013 2014 1.52% 2.85% - '10 2015 .4.13% 11.38T3 .., Yes 2016 6.22% 13.96% Yes Parks Division,Nursery 2013 2014 11.33% 11.08% 0.25 '10 2015 -14 41% -22.94% 8.53 Yes 2016 7.54% 21.11% -13.57 Yes Pollee Athletic League 2013 2014 22.07% 7.90% 14.17 Yes 2015 9.11% 3.62% 5.49 Yes 2016 -10.19% 23.98% 13.79 Yes Police Station 2013 2014 .4.45% .4.55% 0.10 No 2015 -3.53% -3.55% 0.02 No 2016 -0.46% -0.98% 0.51 No Recreation Center(21 Street) 11111111111111111111111. 2013 2014 14.67% 11.00% 3.67 Yes 2015 2.15% 5.46% -3.32 Yes 2016 -79.33% 81.87% 2.54 No Sallport/Police Substation 2013 2014 17.25% -55.22% 72.47 Yes 2015 -1.64% 1.14% -2.78 No 2016 12.78% 19.25% -6.47 Yes South Shore Community Center 2013 2014 -3.33% -2.90% -0.43 No 2015 -10.55% -9.38% -1.17 No 2016 -8.95% .8.82% -0.12 No Stillwater Park Recreation Center 2013 2014 -9.79% -10.92% 1.12 No 2015 34.12% 13.26% 20.85 Yes 2016 -10.45% -3.59% -6.86 Yes Tatum Park Recreation Center 2013 2014 -24.69% -27.48% 2.78 No 2015 69.05% 71.87% -2.82 No 2016 24.80% 22.36% 2.44 No VCA Building(555) 2013 2014 -11.21% 4.71% •15.92 Yes 2015 -17.27% 11.81% -29.08 Yes 2016 2.64% -12.53% 15.17 Yes Youth Center(Scott Rakow) 2013 2014 -6.38% -7.72% 1.33 No 2015 •11.46% -9.09% -2.37 No 2016 6.20% 4.92% 1.77 No Total Variances Assessed 78 Total Yes Results 44 %From Total 56% Page 1391 of 1802 Yearly Total Consumption Summary Table Exhibit:D C Is Ameresco's Calculated Total Consumpti A B %Difference Between FPL Showing a Difference of Over a 3%Rangt location/Fiscal Year Total Yearly Consumption(FPI/Total Yearly Consumption(Amerescc) and Ameresco Total When Compared to FPL?(C Within+1- 41 �a f Consumptior(8-A)/8 3%,--No) ll,,shore Maintenance Building ,,n13 54,310 195,332 72.2% Yes 2014 62,921 187,573 66.5% Yes 2015 91,844 218,218 579% Yes 2016 113,613 241,749 53.0% Yes City Hall ------. :.:._s 2013 1,440,720 1,430,520 -0.7% N, 2014 1,493,880 1,456,800 -2.5% t 2015 1,495,440 1,379,220 -8.4% Yes 2016 1,474,080 1,477,080 0.2% Colony Theater .111111111111111111111111111111111111111 2013 703,200 694,080 -1.3% No 2014 788,880 795,120 0.8% No 2015 885,840 898,560 1.4% No 2016 888,480 882,960 -0.6% No Comlort FacIllt111111111111111111111111111111111111111111 2013 31,533 32,702 3.6% Yes 2014 29,732 29,004 -2.5% No 2015 26,193 23,371 -12.1Y Yes 2016 16,924 16,399 -3.2% Yes Convention Center 2013 6,509,120 13,318,640 51.1% Yes 2014 6,242,752 12,144,692 48.6% Yes 2015 6,442,892 12,077,092 46.796 Yes 2016 6,355,360 12,017,844 47.1% Yes Crespi Recreation Center 2013 10,185 10,185 0.0% No 2014 10,697 10,697 0.0% No 2015 10,079 8,518 .18.3% Yes 2016 7,943 7,197 -10.4% Yes Fairway Park Recreation Center 2013 50,714 49,533 .2.4% No 2014 47,843 46,272 -3.4% Yes 2015 53,115 48,658 -9.2% Yes 2016 62,916 61,262 -2.7% No Fire Station#1 2013 261,420 260,700 -0.3% No 2014 264,720 264,240 -0.2% No 2015 262,020 261,660 -0.1% No 2016 243,960 241,440 -1.0% No Fire Station e2 2013 828,360 672,720 -23.1% Yes 2014 682,920 643,200 -6.2% Yes 2015 672,060 589,440 •14.0% Yes 2016 748,980 602,880 -24.2% Yes Fire Station 83 2013 191,760 218,671 12.3% Yes 2014 201,660 217,173 7.1% Yes 2015 215,820 218,375 1.2% No 2016 227,280 232,264 2.1% No Fire Station Maintenance Facility IIIIIIIIIIIIMMIIIIIIIIIIIIIIIIII 2013 91,812 90,561 -1.4% No 2014 103,562 104,372 0.8% No 2015 104,227 91,052 -14.5% Yes 2016 102,346 103,914 1.5% No Mechanical Maintenance/Sanitation IIIIIIIIIIIIIIIIIIIIMIIIIIIIIIIIIIIIIIIIIIIII 2013 494,520 694,080 28.8% Yes 2014 474,360 483,600 1.9% No 2015 458,280 462,240 0.9% No 2016 446,640 446,760 0.0% No Muss Park Recreation Center 2013 10,709 11,927 10.2% Yes 2014 18,041 17,599 -2.5% No 2015 12,310 11,352 -8.4% - Yes 2016 10,090 9,925 -1.7% No North Shore Community Center 2013 115,855 224,906 48.5% Yes 2014 112,378 229,038 50.9% Yes 2015 123,987 191,842 35.4% Yes 2016 117,425 205,960 43.0% Yes Office Building(7771 2013 680,320 683,360 0.4% No 2014 687,360 695,040 1.1% No 2015 728,640 726,720 -0.3% No Page 1392 of 1802 C Is Ameresco's Calculated Total Consumpti A B %Difference Between FPL Showing a Difference of Over a 3%Range Location/Fiscal Year Total Yearly Consumpti n(F LTotal Yearly Consum tion(Ameresu) and Ameresco Total When Compared to FPL?(C Within+1- `:ConsumptioffB-A)/B 3%-No) 2016 665,120 668,000 0.4% 100 Old City Hall 2013 332,781 328,491 -1.3% No 2014 337,840 337,840 0.0% No 2015 323,880 299,391 -8.2% Yes 2016 344,012 341,176 -0.8% No Parks Division,Nursery 2013 116,973 116,416 -0.5% No 2014 130,228 129,316 .0.7% No 2015 111,462 99,656 -11.8% Yes 2016 119,870 120,693 0.7% No Police Athletic League 2013 288,720 217,643 -32.7% Yes 2014 352,440 234,832 -50.1% Yes 2015 384,540 243,324 •58.0% Yes 2016 345,360 184,979 -86.7% Yes Police Station IIIIIIIIIIIIIIIIIIMIIINIIIIIIIMI 2013 3,256,560 3,256,560 0.0% No 2014 3,111,600 3,108,480 -0.1% No 2015 3,001,680 2,998,080 -0.1% No 2016 2,987,760 2,968,800 -0.6% No Recreation Center(21 Street) 2013 121,920 372,000 67.2% Yes 2014 139,800 412,920 66.1% Yes 2015 142,800 435,480 67.2% Yes 2016 29,520 78,960 62.6% Yes Sailport/Police Substation 2013 53,152 439,317 87.9% Yes 2014 62,319 196,711 68.3% Yes 2015 61,294 198,947 69.2% Yes 2016 69,128 237,242 70.9% Yes South Shore Community Center 2013 487,080 480,720 -1.3% No 2014 470,880 466,800 -0.9% No 2015 421,200 423,000 0.4% No 2016 383,520 385,680 0.6% No Stillwater Park Recreation Center 111111111111111111111111111111111111111111111 2013 9.995 9,995 0.0% No 2014 9,016 8,904 -1.3% No 2015 12,092 10,085 -19.9% Yes 2016 10,828 9,723 -11.4% Yes Tatum Park Recreation Center 2013 10,983 11,049 0.6% No 2014 8,271 8,013 -3.2% Yes 2015 13,982 13,772 -1.5% No 2016 17,450 16,852 -3.5% Yes _IlaBuildin111.11.11111111111111 g(555) 2013 576,000 232,800 -147.4% Yes 2014 511,440 243,760 -109.8% Yes 2015 423,120 272,560 -55.2% Yes 2016 434,280 238,400 -82.2% Yes Youth Center(Scott Rakow) 2013 1,902,000 1,894,080 -OA% No 2014 1,780,560 1,747,920 -1.9% No 2015 1,576,560 1,589,040 0.8% No 2016 1,674,240 1,667,280 -0.4% No Total Variances Assessed 104 Total Yes Results 52 %From Total 50% Page 1393 of 1802 I . 1a \ 0� , | 7 - 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I 1 a z om4 oo EE Z I p 0 I 3 • V• 3 n.. <o :^ X H a O Ill ` T n O i 00111 eN Isggig - C w E c E 3 c « a o • I; C q 8j 0 7 S p }-12 1 : g a o o r B 14 4 $ m z a E c G 12 .,5 ill . 3 "- $$SS g o < >4 E g$e n E j r 13 8 0 . :: `o T a V `u 8 i § § § §§ § § § § § ' n F (8 u u g u ¢ p /n 8 fi r L.) i^ w1 O v1 ViV . if .c f RRRR Exhibit F Total Water Consumption by Calendar Year Calendar Year(January 1st through December 31st) Slope Trend Locations 2011 2012 2013 2014 2015 2016 21 Street Recreation Center 2,754 1,223 713 686 715 65 (0.156) Downward Bayshore Maintenance Building - 1,369 2,902 2,628 2,096 3,234 2,737 0.065 Upward City Hall 6,816 4,626 3,099 2,275 2,541 3,069 (0.108) Downward Colony Theater 8,142 8,343 9,583 9,595 10,139 11,114 0.052 Upward Comfort Facility 1,987 2,448 1,783 422 572 0 (0.198) Downward Convention Center 72,516 62,104 96,081 64,597 63,026 13,829 (0.096) Downward Crespi Recreation Center 110 308 200 248 369 306 0.094 Upward Fairway Park Recreation Center 33,155 21,837 33,658 28,282 28,994 33,756 0.016 Upward Fire Station 41 20,233 16,029 7,872 2,204 2,641 5,075 (0.172) Downward Fire Station 82&Fire Station Maintenance Facility 740 938 921 761 786 784 (0.012) Downward Fire Station#3 2,824 2,542 2,474 2,732 3,764 4,628 0.080 Upward Mechanical Maintenance/Sanitation 2,196 1,115 1,501 1,961 2,453 2,560 0.070 Upward North Shore Community Center N/A 814 655 405 3,566 12,863 0.210 Upward Office Building(777) 2,597 5,734 4,559 5,346 5,837 6,845 0.093 Upward Old City Hall 2,821 4,844 3,724 2,701 2,983 3,723 (0.012) Downward Parks Division,Nursery 9,581 4,493 11,685 15,144 14,125 14,918 0.111 Upward Police Athletic League 19,446 13,712 13,876 15,428 18,336 10,987 (0.039) Downward Police Station 32,874 20,708 23,529 28,798 42,658 46,425 0.085 Upward Sallport/Police Substation 366 2,912 1,421 1,418 735 1,065 (0.030) Downward South Shore Community Center 7,691 4,587 5,671 3,614 3,496 8,449 (0.005) Steady Stillwater Park Recreation Center 210 247 63 113 363 328 0.078 Upward Tatum Park Recreation Center 71 233 193 126 214 319 0.100 Upward Youth Center(Scott Rakow) 12,801 17,621 28,498 23,530 38,431 42,158 0.138 Upward Total 23 Trend Count % (See Note 31 Upwarc 13 57% Downwarc 9 39% Steady 1 4% Total 23 100% Note 1.•VCA Building(555)and Muss Park Recreation Center were part of the sample,but data was not received for these locations. Note 2:Slope was calculated through Excel's regression analysis formula,SLOPE(Total kWh consumption,Year).Slopes within.0.01 and-0.01 range are considered steady.For all other slopes,positive numbers represent upward trends and negative numbers"()"represent downward trends. Note&Sum of total locations is 23 because Fire Station#2 and Fire Station Maintenance Facility were bundled as no information to segregate water meters was obtained. Page 1420 of 1802 O N 1 I i 0 I i i i O O N Y -O .a T t t of i I W Y o I HI O N N N Q O N L 3 Q1 a c C 4J C W U N Z 0 C Om v O c LJ 0 C a)I W Cl) > N a CC -0 C Q O C Y •- 0 rn 0 Cl) mV N `° cu N 7 C - 0 0 � N 0 0 .2�+ M y N CO .-1 N O N M N 0 } Q I C 2 o ih i _ N Co 4-1 1i1 d E LL O 0! aid.. V O Q Cr Cr 0 -. M E .U` E d N N N N N N {L 0 N 1i Q Z O C C :CMr2 dj U C n O O O O o n , " Cl E Cr) 0 2n .4 o N 0 3 V1 N M 01 .�. N M 1-1 y u1 C M O m N .1 CLI } 0 „ U >, L 0.1 C O LL > c0 a to c VI H O f6 n. 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